### Case 2:08-cv-02695-GW-E Document 22 Filed 05/22/2008 Page 1 of 2
Form 6.CivilAppeals Docketing Statement USCADOCKET #(IF KNOWN)

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

CIVIL APPEALS DOCKETING STATEMENT
PLEASE ATTACH ADDITIONAL PAGES IF NECESSARY TITLE IN FULL: DISTRICT: C.D. California 

### a JUDGE: GEORGE H. WU 

### a UNITED STATES OF AMERICA and MARY E. DISTRICT COlJRT NUMBER: CV 08-02695 D PETERS. Secretary of Transportation. DATE NOTICE OF APPEAL a

# IIS THIS A CROSS-APPEAL? Plaintiffs/Appellees, FILED: May 22, 2008 DYES
vs. IF THIS MATIER HAS BEEN BEFORE THIS COURT PREVIOUSLY, PLEASE PROVIDE THE DOCKET NUMBER AND CITATION (IF ANY): CITY OF SANTA MONICA, Defendant/Appellant.
BRIEF DESCRIPTION OF ACTION AND RESULT BELOW: Action to enforce a Federal Aviation Administration cease and desist order and to enjoin a City of Santa Monica ordinance adopted to conform aircraft usage at its Municipal Airport to federal guidelines for airport design. Although the City contests the validity of the cease and desist order, the District Court issued apreliminary injunction against the City's ordinance. PRINCIPAL ISSUES PROPOSED TO BE RAISED ON APPEAL: Whether the FAA has the authority to issue and enforce an interim cease and desist order and a supplemental interim cease and desist order before the FAA has complied with the statutory and regulatory requirements that must proceed issuance of such orders. Whether a duly enacted City
. ordinance adopted to promote the safe operation ofits airport through implementation of federal standards can be prohibited by the FAA. PLEASE IDENTIFY ANY OTHER LEGAL PROCEEDING THAT MA Y HAVE A BEARING ON THIS CASE (INCLUDE PENDING DISTRICT COURT POST-JUDGMENT MOTIONS): Concurrently with the filing of this appeal, the City is filing a Petition for Review in City of Santa Monica v. Kelvin L. Solco, Byron K. Huffman and the Federal Aviation Administration, FAA Docket No. 16·02-08. The cease and desist order on which the District Court based its preliminary injunction in this action arises from the administrative proceeding which the City seeks to havejudicially reviewed by this Court through its filing of the Petition for Review. DOES THIS APPEAL INVOLVE ANY OF THE FOLLOWING: 

## o Possibility of settlement 

# o Likelihood that intervening precedent will control outcome of appeal 

### !Kl Likelihood of a motion to expedite or to stay the appeal. or other procedural matters (specify) . Defendant/Appellant expects to file a Motion for a Stay Pending Appeal inthis matter. 

### EXHIBIT 

## o Any other information relevant to the inclusion of this case in the Mediation Program ~

# J\q
D J!I



# o Possibility parties would stipulate to binding award by Appellate Commissioner in iieu of submission to judges.

Effective 7/112000 A-Ila (10/00) CIVIL APPEALS DOCKETING STATEMENT Page lof2

### Case 2:08-cv-02695-GW-E Document 22 Filed 05/22/2008 Page 2 of 2

LOWER COURT INFORMATION Page2of2 JURISDICTION DISTRICT COURT DISPOSITION FEDERAL APPELLATE TYPE OF JUDGMENT/ORDER RELIEF APPEALED jgJ FEDERAL 

## o FINAL DECISION OF 0 DEFAULT JUDGMENT 

## o DAMAGES: QUESTION DISTRICT COURT 0 DISMISSAL IJURISDICTION SOUGHT 

## s 0 DISMISSAL IMERITS AWARDED ( 

## o DIVERSITY IiJINTERLOCUTORY 0 SUMMARY JUDGMENT ~ INJUNCTIONS: DECISION 0 JUDGMENT ICOURT DECISION 

### m PRELIMINARY 

## o OTHER APPEALABLE AS OF 0 JUDGMENT IJURY VERDICT 

## o PERMANENT (SPECIFY) RIGI/T 0 DECLARATORY JUDGMENT 181 GRANTED 0 JUDGMENT AS A MATTER OF LAW 

## o DENIED 

## o INTERLOCUTORY iii OTHER (SPECIFY): ORDER CERTIFIED BY 

## o ATTORNEY FEES: DISTRICT .JUDGE SOUGHT 

## s (SPECIFY) AWARDED ( 

## o PENDING 

## o COSTS: 

## s o OTHER (SPECIFY):

. CERTIFICATION OF COUNSEL I CERTIFY THAT: I. COPIES OF ORDER IJUDGMENT APPEALED FROM ARE ATTACHED. 2. A CURRENT SERVICE LIST OR REPRESENTATION STATEMENT WITH TELEPHONE AND FAX NUMBERS IS ATTACHED ( SEE 9TH CIR. RULE 3-2 3. A COpy OF THIS CIVIL APPEALS DOCKETING STATEMENT WAS SERVED IN COMPLIANCE WITH FRAP 25. 4. I UNDERSTAND THAT FAILURE TO COMPL YWITH THESE FILING REQUIREMENTS MAY RESULT IN SANCTIONS, INCLUDING DISMISSAL OF THIS APPEAL. 

# /~77~r-

. May 22, 2008 

# • Signature Date

COUNSEL WHO COMPLETED THIS FORM NAME: MARTINT. TACHIKI FIRM: CITYAITORNEY'S OFFICE,CITYOFSANTAMONICA ADDRESS: 1685 MainStreet.3rdFloor

SantaMonica,CA90401 E-MAIL: marty.tachiki@smgov.net

..... TELEPHONE: 310-458-8336 FAX: 310-395-6727

" THIS DOCUMENT SHOULD BEFILED INTHE DISTRICT COURT WITH THE NOTICE OF APPEAL" " II' FILED LATE, IT SHOULD BE FILED OIRECTLY WITH THE U.S.COURT OF APPEALS"
Effective 7/1/2000 A-Ila (10100) CIVILAPPEALSDOCKETINGSTATEMENT Page Iof2

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### 25 26 27 28 v. Case 2:08-cv-02695-GW-E Document 21 Filed OS/22/2008 Page 1 of 15

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA MARSHA JONES MOUTRIE (SBN 69711) 

### CityAttorney JOSEPH LAWRENCE (SBN 99039) 

### Assistant CityAttorney LANCE S. GAMS (SBN 125487) 

### MARTIN 1. TACHIKI (SBN 83044) 

### Deputy CityAttorneys 1685 

### Main Street, Third Floor SantaMonica, California 90401-3295 

### Telephone: (310) 458-8336 

### Facsimile: (310) 395-6727 

### marty.tachiki@smogov.net ARTHUR P.BERG, Esq. Kaplan Kirsch &

### Rockwell, LLP 730 

### Fifth Avenue, Suite 900 

### New York, New York 10019 

### Telephone: (212) 265-7008 

### Facsimile: (646) 514-5440 

### THOMAS R. DEVINE, Esq. W. ERIC PILSK, Esq. Kaplan, Kirsch &

### Rockwell, LLP 1001 

### Connecticut Ave. NW #905 

### Washington, D.C. 20036 

### Telephone (202) 955-5600 

### Facsimile: (202) 955-5616 

### Attorneys forDefendant andAppellant CITY OFSANTA MONICA

UNITED STATES OF AMERICA, and MARY E. PETERS, United States Secretary ofTransportation,

Plaintiffs and Appellees,

CITY OF SANTA MONICA,

Defendant and Appellant. CASE NO.: CV08-02695 GW(Ex) DEFENDANT CITY OF SANTA MONICA'S NOTICE OF APPEAL TO THE UNITED STATES COURT OF APPEAL FOR THE NINTH CIRCUIT; REPRESENTATION STATEMENT PRELIMINARY INJUNCTION APPEAL

NOTICE OFAPPEAL; REPRESENTATION STATEMENT

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NOTICE OF APPEAL; REPRESENTATION STATEMENT 

### Case 2:08-cv-02695-GW-E Document 21 Filed OS/22/2008 Page 2 of 15



### 1 

## 2 3 4 5 6 7 DATED: May 22, 2008 NOTICE OF APPEAL

Notice is hereby given that the CITY OF SANTA MONICA, the defendant and appellant herein, appeals to the United States Court ofAppeal for the Ninth Circuit from the Preliminary Injunction ofthe District Court, entered in this case on May 16,2008.
Respectfully submitted, MARSHA JONES MOUTRlE City Attorney By ~ 

# 71a..-tL
. MARTIN T. TACHIKI Deputy City Attorney



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NOTICE OFAPPEAL; REPRESENTATION STATEMENT Case 2:08-cv-02695-GW-E Document 21 Filed OS/22/2008 Page 3 of 15



### REPRESENTATION STATEMENT
The undersigned represents City of Santa Monica, Defendant and Appellant in this matter, and no other party. Attached is a service list that shows all ofthe parties to the action below, and identifies their counsel by name, firm, address and telephone number, where appropriate. (F.R.A.P. 12(b); Circuit Rule 3-2(b).)
Dated: May 22, 2008 Respectfully submitted, MARSHA JONES MOUTRIE City Attorney 

# By~77JL· MA TINT. TACHIKI Deputy City Attorney



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NOTICE OFAPPEAL; REPRESENTATION STATEMENT Case 2:08-cv-02695-GW-E Document 21 Filed OS/22/2008 Page 4 of 15



### SERVICE LIST FOR REPRESENTATION STATEMENT Plaintiffs/Appellees: United States OfAmerica, and Mary E. Peters, United States Secretary of Transportation Counsel for Plaintiffs and Appellees: Jeffrey S. Bucholtz Acting Assistant Attorney General Thomas P. O'Brien United States Attorney Arthur R. Goldberg Assistant Branch Director Joel McElvain, D.C. Bar No. 448431 Trial Attorney U.S. Department ofJustice Civil Division, Federal Programs Branch 20 Massachusetts Avenue, N.W. Washington, DC 20001 Joel.McElvain@usdoj.gov Defendant and Appellant: City of Santa Monica Counsel for Defendant and Appellant: MARSHA JONES MOUTRIE (SBN 69711) CityAttorney JOSEPH LAWRENCE (SBN 99039) Assistant CityAttorney LANCE S. GAMS (SBN 125487) MARTIN T. TACHIKI (SBN 83044) Deputy CityAttorneys 1685Main Street, Third Floor SantaMonica, California 90401-3295 Telephone: (310) 458-8336 Facsimile: (310) 395-6727 marty.tachiki@smogov.net ARTHUR P.BERG, Esq. Kaplan Kirsch &

### Rockwell, LLP 730FifthAvenue, Suite900 New York, New York 10019 Telephone: (212) 265-7008 Facsimile: (646) 514-5440 [Counsel listcontinued onnextpage] 4

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NOTICE OF APPEAL; REPRESENTATION STATEMENT Case 2:08-cv-02695-GW-E Document 21 Filed OS/22/2008 Page 5 of 15

THOMAS R. DEVINE, Esq. W. ERIC PILSK, Esq. Kaplan, Kirsch 

### &Rockwell, LLP 1001 Connecticut Ave. NW #905 Washington, D.C. 20036 Telephone (202) 955-5600 Facsimile: (202) 955-5616

5UNITED STATES OF AMERICA, et aI., )

11 ) ) 12 Plainti ffs, ) ) 

### 13 v. ) ) 14 CITY OF SANTA MONICA, ) ) 15 Defendant. ) ) 4 

### 5 6 7 8 9 10

16 

### 2 ase 2:08-cv-Q2695-GW-E Document 20 Filed OSnW2008 Page 

# sof 16



### 3

UNITED STATES DISTRICT COURT 

### CENTRAL DISTRICT OF CALIFORNIA

CASE NO. CV 08-2695 GW (Ex) ORDER GRANTING PRELIMINARY INJUNCTION

17 After reviewing the motion papers and concomitant evidence submitted with: 1)the Ex Parte 18 Application for Temporary Restraining Order ("TRO") filed byplaintiffs United States ofAmerica 19 and Mary E. Peters, the United States Secretary ofTransportation (collectively "Plaintiffs"), 2) the 20 Opposition tothe TRO filed bythe defendant City ofSanta Monica ("City"), 3)the City's Opposition 21 toPlaintiff sApplication foraPreliminary Injunction, and4) Plaintiff's Reply Memorandum, and after 22 considering the oral arguments ofcounsel attheApril 28, 2008 hearing on the IRO application and 23 the May 15, 2008 preliminary injunction hearing, this Court grants Plaintiffs' application for a 24 preliminary injunction and issues the following Order. 25 IT IS ORDERED THAT the Defendant, the City of Santa Monica, California, is hereby 26 enjoined, during the pendency ofthis action: 27 1) To comply with the Supplemental Interim Cease and Desist Order issued by the Acting 28 Director ofthe Office ofAirport Safety and Standards ofthe Federal AviationAdministration

### 2

3 2) To cease and desist from the enforcement ofSanta Monica Municipal Code 

### § 10.04.06.220

(2008) during the pendency of the FAA's administrative proceedings with respect to the, 

### Case2:08-cv-Q2695-GW-E Document20 Filed05/~W2008 Page1.of 16

(" FAA ") on May 12,2008;

4 validity ofthat ordinance (or during any such proceedings before the District ofColumbia or, 5 Ninth Circuit Court ofAppeals, unless otherwise ordered by said court); and 6 3) To permit Category C and Category D aircraft to operate at the Santa Monica Airport 7 during that same time period totheextent that such aircraft arepermitted todo sounder federal 8 law.

10 the preliminary injunction are delineated inits Order Granting Temporary Restraining Order filed on 9 The findings offact and conclusions oflaw upon which this Court bases its decision to grant

11 April 28, 2008 (see Docket Entry No. 10), inits "Initial Thoughts on Filings Submitted inAdvance 12 ofPreliminary Injunction Hearing" which was provided tocounsel forthe parties prior to the hearing 13 onMay 15,2008, and as supplemented inpart bythe Court's statements onthe record atthe TRO and 14 preliminary injunction hearings. Copies ofboth documents are attached to this Order. I,

15 Defendant City has requested that this preliminary injunction Order be stayed. That request: 16 is hereby denied. The Order is to take effect immediately. 17 18 19 20 21 22 23 24 

### 25 26 

### 27 28 Dated: This 

# Ir'-day ofMay, 2008

216 

### Filed 05/~W2008 Page 8 of 16 !

17 This matter isbefore the Court ontheEx Parte Application for Temporary Restraining Order 18 ("Plaintiffs' Application") filed by plaintiffs United States of America and Mary E. Peters, the 19 United States Secretary of Transportation (collectively "Plaintiffs"). The Court hasjurisdiction of 20 this matter pursuant to 28 U.S.C. §§ 1331 and 1345 and venue is proper pursuant to 28 U.S.C. § 21 1391(b) and 49 U.S.C. §§ 46106, 46107(b) and 471 11(f). Having reviewed the Complaint, 22 Plaintiffs' Application, the opposition of defendant City of Santa Monica ("the City"), and all 23 supporting papers, declarations and exhibits, and other materials in the case file, the Court now 24 GRANTS the requested temporary restraining order and issues an Order to Show Cause why a 25 preliminary injunction should not issue. 

### ase 2:0B-cv-D2691

### 5-GW-E Document 20

1 2 

### 3 4 5 6 7 8 9 10 UNITED STATES DISTRICT COURT 

### CENTRAL DISTRICT OF CALIFORNIA

26 Plaintiffs have demonstrated that the City has enacted an ordinance that the City originally 27 planned to begin enforcing on Friday, April 24, 2008, but which the parties agreed in oral off-theUNITED STATES 

## OF AMERICA, et

## al., ) 11 ) ) 

### 12 Plaintiffs, ) 

### ) 13 

### v. ) ) 14 CITY 

## OF SANTA MONICA, ) ) 15 Defendant. ) 

### ) CASE NO. CV 08-2695 GW (Ex) ORDER GRANTING TEMPORARY 

### RESTRAINING ORDER AND SETTING DATES 

## FORPRELThJINARY INJUNCTION HEARING; ORDER TO 

### SHOW CAUSE WHY PRELIMINARY 

### INJUNCTION SHOULD NOT ISSUE

28 record discussions with this Court toforestall pending theinstant hearing on Plaintiffs' Application. See Soleo Decl., Exh. 1 at 29-31. The 

### City's ordinance affects the classes of airplanes which mayCase 2:08-cv-Q2695-GW-E Document 20 Filed OSnW2008 Page'; of 16 {

1 use Santa Monica Airport ("the Airport"). On April 23, 2008, Plaintiffs, concerned that the 2 ordinance violates various statutory provisions and asettlement agreement reached in 1984 between 3 the City and the Federal Aviation Administration ("FAA"), issued an interim cease and desist order 4 ("Interim Order") through Kevin 

### 1. Soleo, the Acting Director ofthe Office of Airport Safety and 5 Standards of the FAA ("Acting Director"). 

### See Soleo Decl. ~ 3 & Exh. 1. The Interim Order 6 requires that the City: 1) cease and desist immediately from enforcing the ordinance, 2) publicly 7 withdraw a letter informing airport users of the impending enforcement of the ordinance, and 3) 8 provide written notice to airport users that the ordinance is in abeyance pending completion ofthe 9 administrative process ofthe FAA. The Interim Order further requires the City to provide copies' 10 to the FAA of the notification sent to users (and alist ofusers to whom the notification was sent), 11 and notifies the City ofits rights to respond to the Interim Order. See id. at 27-28. 12 The Acting Director issued the Interim Order pursuant to 14 C.F.R. § 16.11, as the result of 13 a delegation from the Administrator ofthe FAA, who inturn has the right to issue such orders under 14 49 u.S.C. §§ 4011 3(a) and 46105(c). Once the Interim Order was issued, itremains in effect "under 15 its own terms oruntil superseded." 49 U.S.C. §46105(a). Itmay be amended, modified or suspended 16 by the Secretary orAdministrator pursuant to49 U.S.C. §461 05(a), or the City may apply for review 17 of the Interim Order by filing apetition for review in the United States Courts of Appeals for the 18 District of Columbia Circuit or Ninth Circuit, see 49 U.S.C. § 46110(a). If the City files such 

# a 19 petition, such court has "exclusive jurisdiction" to review the order once the clerk ofthe court sends 20 a copy of the petition to the necessary governmental official. See 49 U.S.C. § 461 lOfb) and (c); 21 Foster v.Skinner, 70 F.3d 1084, 1087-88 (9th 

### Cir, 1995); Friends ofGateway v. Slater, 257 F.3d 74;; , 22 77 (2d Cir. 2001), cert. denied sub nom., Friends a/Gateway v. Mineta, 534 U.S. 1128 (2002). 23 The City argues that because ithas not filed such apetition, the exclusive jurisdiction ofthe 24 D.C. orNinth Circuits has not taken effect. While that may be true here, that does not mean that, as 25 a result, this Court hasjurisdiction to consider the procedural or substantive merits of the Interim 26 Order. The statutory scheme plainly rests thatpower with the Department ofTransportation, the FAA 27 or, iftbe City files apetition, with the Courts ofAppeal. Thus, until the City files apetition before 28 either the D.C. or Ninth Circuit, jurisdiction over the matter remains at the governmental agency 2

### ~~~~ !IDDm.JuTrmrlrtJW fRlteml ([ffi'QmmDIDm JPam:e'IDmf11l5 { \

1 level. The Interim Order itself sets forth the City's procedural rights before the agency. As such, this' 2 COUlthas no power to adjudicate either the substantive merits ortheprocedural regularity leading up 

### 3 to the issuance ofthe Interim Order and the City's arguments inthat respect inresponse to Plaintiffs' 4 Application are misplaced. 

### Cf Federal Maritime Comm 'nv. South Carolina State Ports Auth., 535 

### 5 U.S. 743, 762 (2002).1 This Court's role is to ensure that the Interim Order is enforced pending 

### 6 further proceedings on the Order invenues other than this Court, as discussed above. 

### See 49U.S.C. 7 §§ 46106, 46107(b) and 47111 (t). 8 The City argues that the Court must consider the substantive and procedural merits of the 9 Interim Order in the course of assessing Plaintiffs' likelihood of success on the merits. Plaintiffs 10 plainly do not request, byway ofthis action, that the Court approve ofthe Interim Order and its terms. 

### 11 See Complaint ~~28-31 & Prayer for Relief. Plaintiffs only ask that the Court enforce the Interim 12 Order pending any further review, either before the FAA or the Circuit Courts ofAppeal should the :

" 13 City elect to proceed down that route. Therefore, this Court is inno position, either under the lawor 14 by invitation, to forecast the merits ofthe Interim Order and its terms. 

### 15 Accordingly, the Court grants Plaintiffs' Application. 

### See United States v.Nutri-Cology, Inc., 16 982 F.2d 394, 398 (9th Cir. 1992) ("In statutory enforcement cases where the government has met 17 the 'probability of success' prong of the preliminary injunction test, we presume it has met the 18 

### 'possibility ofirreparable injury' prong because thepassage ofthe statute is itself an implied finding 

### 19 by Congress that violations will harm the public."); 

### CivilAeronautics Bd. v. 

### Carefree Travel, Inc., 20 513 F.2d 375, 385 (2d Cir. 1975). 21 In light ofthe above discussion, the City is ordered: 22 1) To comply with the Interim Order the Acting Director issued on Apri123, 2008; 23 24 25 26 27 28 Were the Interim Order afinal agency action andwere thematterbefore this Courtunder theAdministrative, Procedure Act, then perhaps the conclusion mightbe otherwise, althoughthe Court does not decide that atthis stage.

0 SeeAmericopters, LLCv.FAA, 441 F.3d 726, 735 (9th Cir. 2006) ("[I]fan FAAorder isnot final, neither wenor the district courthavejurisdiction overthe case [underthe APA]."); cf VillageofBensenville v.FAA, 457 F.3d 52, 69 " (D.C. Cir. 2006); butseeMace v.Skinner, 34F.3d 854, 857 (9th Cir. 1994). Here, theInterim Order isjust that, interim, and itremains ineffect "under itsownterms oruntil superseded," andmay be amended, modified or suspended bythe Secretary orAdministrator pursuant to sections 46105{a)and4611O(a). SeePromptair, Inc. v. Hinson, 1996U.S, dist.LEX1S 17366, *11-12 (N.D. IlJ.,Nov. 21, ]996) ("The factthatthereview soughthere is ofa contemplated FAA action, rather than a completed action, is ofnoeffect. Congress intended that anyreview ofFAA action take place inthecourts ofappeals.") (Emphasis in original). 

### 3

### United States ofAmerica, etat v. City ofSanta Monica, CaseNo. CV08-2695

Initial Thoughts onFilings SubmittedinAdvance ofPreliminary Injunction Hearing

Areview ofthe parties' furtherbriefing on this matter in advance ofthe preliminary injunction hearing has generatedthefollowing initialthoughts fromthe Court: 1) It is noted that on May 12,2008, Plaintiffs issued a Supplemental Interim Cease and Desist Order ("Supplemental Order"). The Supplemental Order obligates the City to continue to cease and desist from enforcing its ordinance until a final agency decision is issued and to continue to notify allaeronautical users oftheAirport that the ordinance's ban on Class C and Class D aircraftisnotineffect. 2) The City argues thatthe Interim Orderitselfwasunlawfully issued and is facially invalid, arguing that the statutory scheme under which it was issued only allows such a hearing where either ahearing washeld or there is a "clear safety emergency." Plaintiffs do not address this argument atallintheirReplypapers, presumably because they consider itto bejust one more type ofprocedural challenge thatthis Courthas nojurisdiction to entertain. Indeed, even Plaintiffs' argument concerning the facial invalidity ofthe Interim Orderwould arguably be outside ofthisCourt's bailiwick underthe terms of49 V.S.c. §

### 46110. Asnoted in the Court's TRO, that statute grants exclusivejurisdiction to the Courts ofAppeal ifand when Plaintiff files a petition therein, I 

### whereas jurisdiction remains at the agency level otherwise (otherthan forpurposes ofthe instantenforcement action). Of course, the City's objections to Plaintiffs' process are not cavil; the Airport's operations undoubtedly affectthe relative safety ofthose living within close proximity ofit, andtheresidents' umbrage shouldnotbesurprising. However, even assuming thatthis Court may determine whether the Interim Orderwas, atleast onits face, issued in conformity with the FAA's own procedures andpowers, the Cityhas notpersuasively demonstrated anyflaws inthat respect.

IIn its response tothe Interim Order atthe agency level, theCity indicated that itplanned to fileapetition forreview in aUnited States Court ofAppeals pursuant to 49 U.S.C. §46110 atsome point intime after May 9, 2008. See Supplemental Order at3. Ifsuch apetition has now been filed, itisunclearjust what power the City believes this Court wouldretain, even under itsown - misguided, inthe Court's viewunderstanding ofhow thejurisdictional scheme operates. Infact, itwould seem thatthis preliminary injunction proceeding would bemoot.The City argues that there is no provision for the issuance of interim orders other than

in connection with emergency safety issues. However, the City recognizes that Plaintiffs have justified the Interim Order by way of reference to 14 C.F.R. 

### § 16.11 and 49 U.S.C. 

### §§ 401l3(a) and 46105(c). Section 401l3(a) provides that the Administrator of the Federal Aviation Administration "with respect to aviation safety duties and powers designated to be carried out by the Administrator[] may take action the Secretary [of Transportation], Under Secretary [of Transportation], or Administrator, as appropriate, considers necessary to carry out this part, including conducting investigations
... and issuing orders." That section does not specify that orders issued are to be final (i.e., non-interim) orders, nor does it specifically preclude interim cease and desist orders. The City argues that the true source of the power to issue the Interim Order is 49 U.S.C. § 4610l(a)(4), which requires notice and a hearing. Although section 46101(a)(4) provides for the issuance of "an order to compel compliance
... if the
... Administrator finds in
an investigation under this subsection that aperson is violating this part," there is nothing in that provision which indicates that it is the sole source of such authority (to the exclusion of, for instance, section 401 13(a». In addition, that statutory language applies only to investigations pursuant to subsection 46l01(a), which governs when a person has filed a complaint concerning apurported violation. 

### See 49 U.S.C. § 46l01(a)(1). The City has not cited any evidence that section 46101 (a) was the legislative wellspring of the FAA's investigation. That section is not referenced in either the Interim Order or the Supplemental Order. The City also cites to 14 C.F.R. § 16.109(a), which references an opportunity for a hearing. However, that section by its plain terms applies to "initial determinations issued under § 16.31 that provide the opportunity for a hearing." Section 16.31 is titled "Director's determinations after investigations." The Interim Order and Supplemental Order make clear that the FAA has not issued an "initial determination" yet and that the agency process is ongoing. 

### See Supplemental Order at 3 ("All of the issues raised by the City are being addressed in the on-going investigation, and will be decided in the FAA's forthcoming initial determination."); 

### see also Penobscot Air Servs., Ltd. v. 

### FAA, 164 F.3d 713, 721 (Ist Cir. 1999) ("A hearing is required under the regulations only ifthe initial determination 'finds the respondent in noncompliance and proposes the issuance of a compliance order. "') (emphasis

2

### added); cf Ickes v. FAA, 299 FJd 260, 266 (3d Cir. 2002) ("Ickes complains that he was

deprived of notice and an opportunity for ahearing before the FAA issued the Emergency Order. While FAA regulations ordinarily contemplate prior notice before the agency will issue a cease and desist order, an exception is understandably provided in the case of an emergency.") (emphasis added). As such, Plaintiffs' reliance upon these regulations as authority for the Interim Order appears premature.' At the same time, however, the City's reliance thereon for the requirement of a hearing is likewise untimely. If the City is dissatisfied with the amount oftime the FAA's investigation istaking, there are methods by which they may, potentially, be ableto challenge thatprocess. See 5U.S.c. § 555(b) ("With dueregard forthe convenience andnecessity oftheparties ortheirrepresentatives and within a reasonable time, each agency shall proceed to conclude a matter presented to it.") (emphasis added). The City also focuses on the provision in 49 U.S.C. § 

### 46105(c) which specifically permits the Administrator to issue immediate orders when the Administrator "is of the opinion that an emergency exists related to safetyinaircommerce." The City also notes that section 46105(c) isnot citedas authority fora 14C.F.R. § 16.11order. But section 46105(c) is not the only basis for the Administrator's Interim Order here. The Interim Order is also based upon section 401 13(a), which as noted above does not appear to preclude interim orders (which 14C.F.R. § 

### 16.11(a)effectively allows). Most importantly, the Cityhas not cited to anycase lawwhich supports itslimitation on the Administrator's power to issue interim cease and desist orders (or this Court's authority to review the procedural regularity of the Interim Order in the face of the "exclusivejurisdiction" provision ofsection46110).

2 Rather, as noted inthe Court's TRQ, the proper authority forsuchorder would appear tobe 14C.F.R § 16.11(a). Section 16.11 istitled "Expedition and othermodification ofprocess." Section 16.J I(a) states that "[ujnder the authority of49 U.S.C. 40113 and47121, theDirector may conduct investigations, issue orders, and take such other actions as arenecessary to fulfillthepurposes ofthispart.... " See also Wilson Air Center, LLC v.FAA, 372 FJd 807, 815 & n.4 (6th Cir. 2004) (notingthat "[tjhe regulations provide the [FAAJ with considerable discretion inchoosing how besttofulfill itsinvestigatory duties" and citing, among otherregulatory provisions, section] 6.11); 1ckesv. FAA, 299 F.3d 260, 265 (3d Cir. 2002) ("As to the FAA's authority to respond to an emergency, Congress has conferred broadpower uponthe FAA Administrator to conduct investigations and to issueorders thattheAdministrator 'considers necessary' to carry outthe FAA's mandate."); GATXlAirlog Co. v. Evergreen Int'lAirlines, Inc., 81 F.Supp.2d 1003, 1007 (N.D. Cal. 1999) ("The Administrator may prescribe regulations and issueorders she 'considers necessary' to carry outthe agency's function.").
3

### 3) Plaintiffs take the position that the Interim Order is a final order, notwithstanding

the fact that the Supplemental Order refers to the Interim Order and Supplemental Order together as "ensur[ing] orderly continuation of the status quo during the existing administrative process and until a final decision is issued with appeal rights to the United Court [sic] of Appeals pursuant to 49 U.S.C. 

### § 46110." Supplemental Order at 14; 

### see also id. at 15 (ordering the City to continue to cease and desist "until a final agency decision is issued in this matter pursuant to 14 C.F.R. 

### §§ 16.33 or 16.241 (c)"). The City takes the position that this Court lacks subject matter jurisdiction over this matter (and thus may not enforce the Interim Order) because jurisdiction over final FAA orders lies exclusively with the federal appellate 

### courts.' In the Court's Temporary Restraining Order, it noted that "[w]ere the Interim Order a final agency action and were the matter before this Court under the Administrative Procedure Act, then perhaps the conclusion might be otherwise, although the Court does not decide that at this stage." TRO at 3 n.l (emphasis added); 

### see alsoAmericopters, 

### LLC v. FAA, 441 F.3d 726, 735 (9th Cir. 2006) ("The dilemma is this: if the Zeigler Email and Kanae Letter are final orders relating to 'aviation duties and powers,' § 46110 preempts the district court from considering these claims. But if they are not final, then the Administrative Procedure Act.
..bars the district court from hearing the case for lack of jurisdiction."). Even if Plaintiffs are correct that the Interim Order is in fact a final order (again, a position the Court does not need to resolve at this stage), the matter is not before the Court pursuant to the 49 U.S.C. §46110 or the judicial review provisions of the Administrative Procedure Act4• The matter is before the Court pursuant to 49 U.S.C. §§ 46106, 46107(b) and 471 I1(t), which plainly allow Plaintiffs to seek enforcement ofthe Interim Order in this Court. 4) Finally, the City asserts that it, not Plaintiffs, is acting to protect public safety. However, because in statutory enforcement actions the passage of the statute "is itself an

3For this proposition, one casethe City citesto is Clarkv.Busey, 959 F.2d 808, 811 (9th Cir. 1992). Clark, however, works against the Cityin atleast onerespect. Itindicates thatbecause the court of appeals' jurisdiction toreview the FAA's final disposition ofa petition isexclusive, "itsjurisdiction to review atthat time anyprocedural irregularities
...isalso exclusive." Id. Thus, under Clark, all ofthe City's arguments regarding purported procedural irregularities inthe FAA' 5process would be off-limits for this Court.

4The City's argument that Plaintiffs' claims are arbitrary andcapricious istherefore misguided.
4Case 2:08-cv-Q2695-GW-E Document 20 Filed OSnW2008 Page 16 of 16



### implied finding by Congress that violations willharmthe public," the Courtneed not engage in any balancing 

### ofthe harms. United States 

### v. Nutri-Cology, Inc., 

### 982 F.2d 394, 398 (9th Cir. 1992). Whether the proprietor's exception applies to permit the City's ordinance is an issue that is best resolved by a body with power to review the substantive merits 

### of the Interim Order.

5