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JEFFREY S. BUCHOLTZ

Acting Assistant Attorney General

THOMAS P. O’BRIEN

United States Attorney

ARTHUR R. GOLDBERG, D.C. Bar No. 180661 

Assistant Branch Director

JOEL McELVAIN, D.C. Bar No. 448431

Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave., NW

Washington, DC 20001

Telephone: (202) 514-2988

Fax: (202) 616-8202

Email: Joel.McElvain@usdoj.gov

Attorneys for the Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

UNITED STATES OF AMERICA, and )

MARY E. PETERS, United States )

Secretary of Transportation, ) )

Plaintiffs, )

)

v. )

 )

CITY OF SANTA MONICA, )

)

Defendant. )

Civ. Action No. ___________

Memorandum in Support of

Application for Temporary

Restraining Order
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TABLE OF CONTENTS

Page

Introduction .......................................................1

Background .......................................................2

I. Statutory and regulatory background ..............................2

II. Factual background ............................................5

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

I. The plaintiffs are likely to succeed on the merits .....................9

II. There is a clear possibility of irreparable harm . . . . . . . . . . . . . . . . . . . . . . 11

Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
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Page Cases

A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004 

(9th Cir. 2001) ................................................8

Civil Aeronautics Bd. v. Carefree Travel, Inc., 513 F.2d 375 

(2d Cir. 1975) ................................................9

Federal Maritime Comm’n v. Sourth Carolina Ports Auth., 535 U.S. 743 

(2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

GTE South, Inc. v. Morrison, 199 F.3d 733 (4th Cir. 1999) . . . . . . . . . . . . . . . . . 11

Navel Orange Admin. Comm. v. Exeter Orange Co., 722 F.2d 449

(9th Cir. 1983) ................................................9

United States v. Nutri-Cology, Inc., 982 F.2d 394 

(9th Cir. 1992) ................................................9

United States v. Odessa Union Warehouse Co-op, 833 F.2d 172

(9th Cir. 1987) ................................................9

United States v. Ruzicka, 329 U.S. 287 (1946) . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Yakus v. United States, 321 U.S. 414 (1944) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11

Statutes

49 U.S.C. § 40103 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 3, 6

49 U.S.C. § 40113 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 8

49 U.S.C. § 44502 ..................................................2

49 U.S.C. § 44721 ..................................................2

49 U.S.C. § 46105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 4, 8, 10

49 U.S.C. § 46106 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

49 U.S.C. § 46107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

49 U.S.C. § 46110 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 10

49 U.S.C. § 47107 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 6

49 U.S.C. § 47111 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 9

49 U.S.C. § 47122 ..................................................3

49 U.S.C. § 47151 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3, 7

Regulations

14 C.F.R. § 16.11 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8

14 C.F.R. § 16.31 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8

14 C.F.R. § 16.109 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 8

14 C.F.R. § 97.3 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
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JEFFREY S. BUCHOLTZ

Acting Assistant Attorney General

THOMAS P. O’BRIEN

United States Attorney

ARTHUR R. GOLDBERG, D.C. Bar No. 180661 

Assistant Branch Director

JOEL McELVAIN, D.C. Bar No. 448431

Trial Attorney

U.S. Department of Justice

Civil Division, Federal Programs Branch

20 Massachusetts Ave., NW

Washington, DC 20001

Telephone: (202) 514-2988

Fax: (202) 616-8202

Email: Joel.McElvain@usdoj.gov

Attorneys for the Plaintiffs

IN THE UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION

UNITED STATES OF AMERICA, and )

MARY E. PETERS, United States )

Secretary of Transportation, ) )

Plaintiffs, )

)

v. )

 )

CITY OF SANTA MONICA, )

)

Defendant. )

Civ. Action No. ___________

Memorandum in Support of

Application for Temporary

Restraining Order

Introduction

The Plaintiffs, the United States of America, and Mary E. Peters, the United

States Secretary of Transportation, respectfully seek a temporary restraining order

directing the Defendant, the City of Santa Monica, California (“the City”) to

comply with the Interim Cease and Desist Order (“Order”) issued by the Acting

Director of the Office of Airport Safety and Standards of the Federal Aviation

Administration (“FAA”) on April 23, 2008. The Order commands the City to

refrain from enforcement of an ordinance that attempts to ban the operation of

certain categories of aircraft from operating at Santa Monica Airport (“SMO”). 
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The City has made clear its refusal to comply with the Order and its intent to

commence enforcement of its ordinance on April 24, 2008.

Plaintiffs are entitled to a temporary restraining order enjoining the City’s

enforcement of its ordinance because they are not merely likely to succeed on the

merits of their claim against the City, they are certain to do so. The City is

squarely in violation of 49 U.S.C. §46105(a), which requires compliance with an

order issued by the FAA until such order is amended, modified or set aside either

in the ongoing administrative process or by the Court of Appeals. No showing of

irreparable harm is needed because in enforcement actions such as this one where

Congress has authorized injunctive relief as part of the statutory scheme,

irreparable harm from the denial of enforcement is presumed to occur.

In any event, irreparable harm would exist in the absence of temporary

injunctive relief because the City’s attempted ban would disrupt 9,000 aircraft

operations per year at SMO, thereby affecting some 20,000 to 30,000 passengers,

and most importantly, would force the diversion of these flights to other area

airports that are already operating at or near capacity. This would interfere with

the federal government’s role in ensuring efficient and uniform national aviation

operations. Accordingly, the Plaintiffs are entitled to an order from this Court

enjoining the City to comply with the Order.

Background

I. Statutory and Regulatory Background

Under federal law, the Administrator of the FAA holds plenary authority

over matters concerning the use and management of navigable airspace, air traffic

control, and air navigation facilities. 49 U.S.C. §§ 40103(b), 44502, 44721. In

accordance with this plenary grant of authority to the federal government, federal

law sharply restricts the ability of state or local governments to interfere with the

operations of the federal aviation system.
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Consistent with this grant of plenary authority to the federal government, an

operator of an airport that is available for public use is subject to several statutory

conditions, which are intended to ensure that the airport operator does not interfere

with the efficient operations of the national air system. In particular, an operator of

an air navigation facility on which government money has been expended may not

grant exclusive rights for the use of that facility. 49 U.S.C. § 40103(e). That is,

the operator of an airport may not impose unreasonable conditions on the use of the

facility, or apply any standard for the use of the facility in an unjustly

discriminatory manner. 

In addition, a recipient of federal grants for the use in the operation of an

airport must make that airport “available for public use on reasonable conditions

and without unjust discrimination.” 49 U.S.C. § 47107(a)(1). A grant recipient

must also pledge that any air carrier making “similar use” of the airport will be

subject to substantially comparable regulations and conditions “except for

differences based on reasonable classifications.” 49 U.S.C. § 47107(a)(2). 

Similarly, a recipient of a conveyance of any interest held by the federal

government in surplus property, which the federal government has conveyed for

use as a public airport, must maintain the airport “for public use and benefit

without unreasonable discrimination,” and to ensure that that rights in the use of

the airport may not be vested in a person “excluding others in the same class.” 49

U.S.C. § 47151. 

Federal law vests the primary authority with the federal government to

determine whether these provisions, and other provisions of the federal aviation

laws, have been violated. The Secretary of Transportation, or the Administrator of

the FAA, is authorized to issue orders enforcing the federal aviation laws. 49

U.S.C. §§ 40113(a), 47122(a), (b). The Administraotr has delegated a portion of

that authority to the Director of the Office of Airport Safety and Standards of the
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FAA. Under 14 C.F.R. § 16.11(a), the Director may issue orders and take such

other actions as are necessary to fulfill the purposes of 14 C.F.R., part 16 (which

governs the administrative process of investigations of certain violations of the

federal aviation laws). In particular, upon finding that the circumstances require

expedited handling of a particular case or controversy, the Director may issue an

order directing such measures as may be required. 14 C.F.R. § 16.11(b). See also

14 C.F.R. §§ 16.31, 16.109(a).

Any person adversely affected by the terms of an order issued under these

provisions may apply for relief from the order in the United States Court of

Appeals for the District of Columbia Circuit, or in the Court of Appeals for the

circuit in which the person resides or has its principal place of business. 49 U.S.C.

§ 46110(a). The Court of Appeals has “exclusive jurisdiction” to affirm, amend,

modify, or set aside any part of such order. 49 U.S.C. § 46110(c). Additionally,

after notice to the Secretary, the Court of Appeals “may grant interim relief by

staying the order or taking other appropriate action” for good cause. Id.

Unless and until an order is amended, modified, or set aside by the Secretary

or her designee, or by the Court of Appeals pursuant to 49 U.S.C. § 46110, the

order “remains in effect under its own terms,” 49 U.S.C. § 46105(a), and all

affected persons are required to comply with such order. 

Both the Secretary of Transportation and the Attorney General of the United

States are authorized to “bring a civil action against a person in a district court of

the United States to enforce this part or a requirement or regulation prescribed, or

an order or any term of a certificate or permit issue, under this part.” 49 U.S.C.

§§ 46106, 46107; see also 49 U.S.C. § 47111(f). Such action may be brought in

the judicial district where the defendant does business or where the violation

occurred. 49 U.S.C. §§ 46106, 46107, 47111(f).
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1

 Evidentiary support for the factual assertions in this memorandum is

provided by the Interim Cease and Desist Order of the Acting Director of the

Office of Airport Safety and Standards, attached as Exhibit 1 to the Declaration of

Kelvin L. Solco.

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II. Factual Background

The City operates the Santa Monica Municipal Airport (“the airport,” or

“SMO”).1 The airport serves an important role in the regional and national system

of air transportation and air commerce. It has a vital and critical role in its function

as a general aviation reliever airport for the primary airports in the area, by

diverting aircraft away from other more heavily used airports in the greater Los

Angeles area. 

The City and the FAA entered into a settlement agreement in January 1984

to resolve then-pending litigation. Under that agreement, the City obligated itself,

consistent with the requirements of federal law discussed above, to keep SMO

“open and available for public use as an airport on fair and reasonable terms,

without unjust discrimination, and without granting any exclusive rights prohibited

by law,” and without derogation of the airport’s role as a general aviation reliever

airport. The settlement agreent also confirms the City’s recognition of the FAA’s

preeminent role in airport safety matters by stating that “exclusive authority is

vested in the FAA for the regulation of all aspects of air safety, the management

and control of the safe and efficient use of the navigable airspace, and movement

of aircraft through that airspace.” 

On March 25, 2008, the City adopted an ordinance that purports to regulate

the operation of aircraft at SMO. Santa Monica, Cal., Mun. Code § 10.04.06.220

(2008) (“the ordinance”). The ordinance purports to prohibit operations at SMO
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 The ordinance’s letter designations of categories of aircraft is based on an

FAA categorization system for aircraft. Under that system, letter designations

refer to an aircraft’s approach speed at landing. A Category C aircraft has an

approach speed of more than 120 knots and less than 141 knots. A Category D

aircraft has an approach speed of more than 140 knots and less than 166 knots. See

14 C.F.R. § 97.3. 

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by Category C and Category D aircraft, except in an emergency.2 The ordinance

purports to punish violations of its terms by a $1,000 fine, a term of imprisonment

by as much as six months, or both. The ordinance will become effective on April

24, 2008. Approximately 9,000 out of the approximately 130,000 aircraft

operations at SMO each year involve Category C or Category D aircraft. These

aircraft have operated for years at SMO without incident.

By an Order to Show Cause dated March 26, 2008, Kelvin L. Solco, the

Acting Director of the Office of Airport Safety and Standards of the FAA (“the

Acting Director”), informed the City that the FAA had reason to believe that the

new ordinance was in violation of federal law. The order directed the City to show

cause, within ten days, as to whether the FAA should supplement an existing

investigation to include an investigation into the legality of the new ordinance. In

particular, the order noted that the new ordinance likely: (a) was preempted by the

vesting, under federal law, of exclusive authority in the federal government to

regulate all matters related to air safety; (b) violated the City’s obligation not to

award exclusive rights for the use of an air navigation facility, 49 U.S.C.

§ 40103(e); (c) violated the City’s obligation, as a recipient of federal grants, to

make the airport “available for public use on reasonable conditions and without

unjust discrimination,” 49 U.S.C. § 47107(a)(1); (d) violated the City’s obligation,

as the recipient of a deed of property from the federal government, to maintain the

airport “for public use and benefit without unreasonable discrimination,” and to

ensure that that rights in the use of the airport may not be vested in a person
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“excluding others in the same class,” 49 U.S.C. § 47151; and (e) violated the City’s

obligation, under the 1984 settlement agreement, to keep SMO “open and

available for public use as an airport on fair and reasonable terms, without unjust

discrimination, and without granting any exclusive rights prohibited by law,” and

without derogation of the airport’s role as a general aviation reliever airport. 

The City responded to the Order to Show Cause on April 7, 2008, reiterating

the reasons that it believed the ordinance to be lawful. The City indicated that it

intended to enforce the ordinance. The FAA accordingly is continuing its

investigation into the City’s operations of SMO, including the legality of the new

ordinance. Under the procedures described in 14 C.F.R., part 16, that investigation

will result in an initial determination by the Acting Director of the Office of

Airport Safety and Standards, stating a non-final determination whether the new

ordinance complies with federal law. If the Acting Director concludes that it does

not, the City will be afforded an opportunity for a hearing, and a hearing officer

will issue an initial decision. The Associate Administrator for Airports of the FAA

may review that initial decision, and may issue a final agency decision on behalf of

the Secretary of Transportation. That final agency decision may be reviewed in the

Court of Appeals. See generally 14 C.F.R., pt. 16.

Despite the pendency of these administrative proceedings, the City has

already taken steps to enforce its ordinance. On April 14, 2008, Robert Trimborn,

the Airport Director for SMO, sent a letter to users of the airport warning them that

they must comply with the ordinance.

On April 21, 2008, the Acting Director sent a letter to Mr. Trimborn asking

him to confirm (no later than close of business of April 22) that the City would

withdraw its letter to airport users, and that the City would refrain from any efforts

to enforce the ordinance while administrative proceedings are pending.
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On April 22, 2008, Marsha Jones Moutrie, the City Attorney for Santa

Monica, responded by letter, and stated that the City continued to adhere to its

intent to enforce the ordinance. 

On April 23, 2008, the Acting Director issued an Interim Cease and Desist

Order, pursuant to 49 U.S.C. §§ 40113 and 47122 and 14 C.F.R. § 16.11, 16.31,

and 16.109(a), directing the City to immediately cease and desist from the

enforcement of the ordinance. The Order also afforded the City ten days to

respond, to show cause why its terms should not remain in effect during the

pendency of the administrative proceedings concerning the legality of the

ordinance. Given the City’s responses to the Order to Show Cause and to the

Acting Director’s letter of April 21, it is apparent that the City intends to violate

the Interim Cease and Desist Order. 

Argument

As stated above, the City is placing itself squarely in violation of a valid and

effective Order of the FAA by refusing to comply with the Interim Cease and

Desist Order. Pursuant to 49 U.S.C. § 46105, the City may not do so; the Order is

effective under its own terms until such time as it is modified or set aside by the

Secretary (or her designee) or the Court of Appeals. Because the City refuses to

comply with its clear obligation to obey the Order, and to refrain from the

enforcement of its ordinance, the Plaintiffs are entitled to a temporary restraining

order. 

As a general matter, preliminary injunctive relief (such as a temporary

restraining order) may issue when the moving party demonstrates either “a

combination of probable success on the merits and the possibility of irreparable

harm,” or “that serious questions are raised and the balance of hardships tips in its

favor.” See A&M Records, Inc. v. Napster, Inc., 239 F.3d 1004, 1013 (9th Cir.

2001). 
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However, in statutory enforcement actons brought by the federal

government, such as the present case, where an injunction is authorized by the

statute, the requirement of showing an irreparable injury is considered satisfied

once a violation of federal law has been established. “In statutory enforcement

actions, . . . the passage of the statute is itself an implied finding by Congress that

violations will harm the public . . . [and] further inquiry into irreparable injury is

unnecessary.” United States v. Nutri-Cology, Inc., 982 F.2d 394, 398 (9th Cir.

1992); see also United States v. Odessa Union warehouse Co-op, 833 F.2d 172,

175 (9th Cir. 1987). In other words, “[w]hen the government is seeking

compliance pursuant to a statutory enforcement scheme, irreparable injury from a

denial of enforcement is presumed.” Navel Orange Admin. Comm. v. Exeter

Orange Co., 722 F.2d 449, 453 (9th Cir. 1983). This rule, that the federal

government need not show irreparable injury to gain injunctive relief, applies fully

to enforcement actions under the Federal Aviation Act pursuant to 49 C.F.R.

§§ 46106, 46107, and 47111. See Civil Aeronautics Bd. v. Carefree Travel, Inc.,

513 F.2d 375, 385 (2d Cir. 1975). 

Accordingly, the Plaintiffs need only show a likelihood that they will

succeed on the merits. In any event, the Plaintiffs easily meet either standard.

I. The Plaintiffs Are Likely to Succeed on the Merits

In this case, it is not only likely that the Plaintiffs will succeed on their

claim, it is certain. The Interim Cease and Desist Order issued by the Acting

Director instructs the City to cease and desist all efforts to enforce its ordinance. 

The City persists in its efforts to enforce its ordinance, and accordingly is acting in

violation of this Order. The City however, may not determine on its own initiative

whether it will obey this Order. The Plaintiffs are accordingly entitled to relief

from this court enjoining the City to comply with the Order.
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Pursuant to 49 U.S.C. § 46105(a), the Interim Cease and Desist Order

“remains in effect under its own terms or until superseded.” Neither the Secretary

(nor any designee of the Secretary) nor a Court of Appeals has modified or

superseded the Order. The Order thus is valid and binding. The City’s efforts to

continue to enforce its ordinance violate the Order, and thus place it in violation of

the terms of Section 46105, which require compliance with the Order while it is in

effect. By terms of the Order itself, the City may respond to the FAA to show

cause why the Order should not remain in effect. The City may also petition to the

Court of Appeals, which would have “exclusive jurisdiction” to review the Order. 

49 U.S.C. § 46110. No provision of law, however, permits the City to violate the

Order absent such relief either from the FAA or the Court of Appeals.

The City may attempt to justify its violation of the Order before this Court

by asserting arguments with respect to whether the ordinance may ultimately be

found to be legal – the matter that is ultimately before the FAA, and that ultimately

will be the subject to review by the Court of Appeals. Any such arguments would

be improper in this forum. While the City is certainly entitled to present these

arguments to the agency, and to the Court of Appeals, they have no bearing in this

proceeding, which concerns only the enforcement of the Order while it is in effect. 

Under 49 U.S.C. § 46110(c), the Court of Appeals, and not this Court, holds

exclusive jurisdiction to review the Interim Cease and Desist Order, as well as to

review any final order that results from the administrative proceedings currently

under way. The Court of Appeals also holds exclusive jurisdiction to award the

City any “interim relief” it may seek from that Order, upon a showing before that

Court of good cause for such relief, under Section 46110(c). 

Under this statutory scheme, any effort by the City to challenge the

underlying merits of the Order in this Court would intude upon the Court of

Appeals’ exclusive jurisdiction, and cannot be countenanced. See Federal
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Maritime Comm’n v. Sourth Carolina Ports Auth., 535 U.S. 743, 762 (2002)

(under similar statutory scheme for exclusive appellate jurisdiction over review of

Commission’s orders, district court’s review is limited only to enforcement of the

order, and “the sanctioned party is not permitted to litigate the merits of its position

in that court”) (emphasis in original). See also Yakus v. United States, 321 U.S.

414, 429-30 (1944) (under statute vesting exclusive jurisdtion in court of appeals,

district court lacked authority to hear challenge to validity of order in an

enforcement action); United States v. Ruzicka, 329 U.S. 287 (1946); GTE South,

Inc. v. Morrison, 199 F.3d 733, 744 (4th Cir. 1999). 

The only question before this Court is whether the City is in violation of the

Interim Cease and Desist Order. The City is free to seek any appropriate relief

from the Court of Appeals; it may not, however, unilaterally decide to violate the

Order, nor may it seek to justify such a violation before this Court by disputing the

Order’s merits. Because there is no dispute that the City is so in violation, the

Plaintiffs are not only likely, but are certain, to succeed on their claim for

enforcement of the Interim Cease and Desist Order.

II. There is a Clear Possibility of Irreparable Harm

As noted above, the Plaintiffs need not demonstrate the danger of irreparable

harm to gain the relief sought here, the enforcement of a valid order issued under

federal law. In any event, there is a clear danger of irreparable harm to the national

aviation system if the City’s ordinance were to be permitted to go into effect.

The ordinance would prohibit the operations of Category C and Category D

aircraft at SMO. There currently are approximately 9,000 aircraft operations at

that airport per year. The ban thus would likely affect approximately 20,000 to

30,000 passengers annually. These aircraft would be diverted to other airports in

the region, including LAX. These other airports, however, already operate at or

near capacity; the ban thus would create congestion and delays, and interfere with
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safe and efficient use of the air space in the Los Angeles area. In addition, the

effect of the ordinance, if other airport operators were to follow suit, would

multiply the impact of local efforts to interfere with the unifom operations of the

federal aviation system.

This interference with regional and national aviation operations presents a

possbility of irreparable injury to the federal government’s interest in ensuring safe

and efficient use of air space. The balance of equities lies in favor of enforcing the

Interim Cease and Desist Order, which seeks only to preserve the status quo in

which Category C and Category D aircraft have operated without incident for over

twenty years. 

Conclusion

For the foregoing reasons, the Plaintiffs respectfully request that the Court

enter a temporary restraining order that will enjoin the Defendant, the City of Santa

Monica, California (“the City”):

1. To comply with the Interim Cease and Desist Order issued by the Acting

Director of the Office of Airport Safety and Standards of the Federal Aviation

Administration (“FAA”) on April 23, 2008; 

2. To cease and desist from the enforcement of Santa Monica, Cal., Mun.

Code § 10.04.06.220 (2008) during the pendency of the FAA’s administrative

proceedings with respect to the validity of that ordinance; and

3. To permit Category C and Category D aircraft to operate at SMO during

that same time period to the extent that such aircraft are permitted to do so under

federal law.