Case 2:08-cv-02695-GW-E Document 22 Filed 05/22/2008 Page 1 of 2

Form 6. Civil Appeals Docketing Statement USCA DOCKET # (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 MA TIER 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 a preliminary 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 have judicially 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 in this matter.

EXHIBIT

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

J!I J\q

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 Page 2 of2

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 I JURISDICTION SOUGHT s

0 DISMISSAL I MERITS AWARDED (

o DIVERSITY IiJINTERLOCUTORY 0 SUMMARY JUDGMENT ~ INJUNCTIONS:

DECISION 0 JUDGMENT I COURT DECISION m PRELIMINARY

o OTHER APPEALABLE AS OF 0 JUDGMENT I JURY 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 I JUDGMENT APPEALED FROM ARE ATTACHED.

2. A CURRENT SERVICE LIST OR REPRESENTATION STATEMENT WITH TELEPHONE AND FAX NUMBERS IS

ATTACHED ( SEE 9

TH CIR. RULE 3-2

3. A COpy OF THIS CIVIL APPEALS DOCKETING STATEMENT WAS SERVED IN COMPLIANCE WITH FRAP 25.

4. IUNDERSTAND THAT FAILURE TO COMPL Y WITH THESE FILING REQUIREMENTS MA Y RESULT IN SANCTIONS,

INCLUDING DISMISSAL OF THIS APPEAL.

/~77~r- .

May 22, 2008 •

Signature Date

COUNSEL WHO COMPLETED THIS FORM

NAME: MARTIN T. TACHIKI

FIRM: CITY AITORNEY'S OFFICE, CITY OF SANTA MONICA

ADDRESS: 1685 Main Street. 3rd Floor

Santa Monica, CA 90401

E-MAIL: marty.tachiki@smgov.net .....

TELEPHONE: 310-458-8336

FAX: 310-395-6727

" THIS DOCUMENT SHOULD BE FILED IN THE DISTRICT COURT WITH THE NOTICE OF APPEAL"

" II' FILED LATE, IT SHOULD BE FILED OIRECTL Y WITH THE U.S. COURT OF APPEALS"

Effective 7/1/2000

A-Ila (10100) CIVIL APPEALS DOCKETING STATEMENT Page I of2
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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)

City Attorney

JOSEPH LAWRENCE (SBN 99039)

Assistant City Attorney

LANCE S. GAMS (SBN 125487)

MARTIN 1. TACHIKI (SBN 83044)

Deputy City Attorneys

1685 Main Street, Third Floor

Santa Monica, 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 for Defendant and Appellant

CITY OF SANTA MONICA

UNITED STATES OF AMERICA, and

MARY E. PETERS, United States Secretary

of Transportation,

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 OF APPEAL; 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

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NOTICE OF APPEAL

Notice is hereby given that the CITY OF SANTA MONICA, the defendant and

appellant herein, appeals to the United States Court of Appeal for the Ninth Circuit from the

Preliminary Injunction of the 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 OF APPEAL; 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 of the 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 OF APPEAL; 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 Of America, 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 of Justice

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)

City Attorney

JOSEPH LAWRENCE (SBN 99039)

Assistant City Attorney

LANCE S. GAMS (SBN 125487)

MARTIN T. TACHIKI (SBN 83044)

Deputy City Attorneys

1685 Main Street, Third Floor

Santa Monica, 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

[Counsel list continued on next page]

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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

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UNITED STATES OF AMERICA, et aI., )

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12 Plainti ffs, )

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14 CITY OF SANTA MONICA, )

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15 Defendant. )

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ase 2:08-cv-Q2695-GW-E Document 20 Filed OSnW2008 Page s of 16

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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 by plaintiffs United States of America

19 and Mary E. Peters, the United States Secretary of Transportation (collectively "Plaintiffs"), 2) the

20 Opposition to the TRO filed by the defendant City of Santa Monica ("City"), 3) the City's Opposition

21 to Plaintiff s Application for a Preliminary Injunction, and 4) Plaintiff's Reply Memorandum, and after

22 considering the oral arguments of counsel at the April 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 of this action:

27 1) To comply with the Supplemental Interim Cease and Desist Order issued by the Acting

28 Director ofthe Office of Airport Safety and Standards of the Federal AviationAdministration
2

3

2) To cease and desist from the enforcement of Santa Monica Municipal Code § 10.04.06.220

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

Case 2:08-cv-Q2695-GW-E Document20 Filed 05/~W2008 Page 1.of 16

(" FAA ") on May 12,2008;

4 validity ofthat ordinance (or during any such proceedings before the District of Columbia or,

5 Ninth Circuit Court of Appeals, 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 to the extent that such aircraft are permitted to do so under federal

8 law.

10 the preliminary injunction are delineated in its Order Granting Temporary Restraining Order filed on

9 The findings of fact and conclusions of law upon which this Court bases its decision to grant

11 April 28, 2008 (see Docket Entry No. 10), in its "Initial Thoughts on Filings Submitted in Advance

12 of Preliminary Injunction Hearing" which was provided to counsel for the parties prior to the hearing

13 on May 15,2008, and as supplemented in part by the Court's statements on the record at the TRO and

14 preliminary injunction hearings. Copies of both 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.

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Dated: This Ir'- day of May, 2008

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Filed 05/~W2008 Page 8 of 16

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17 This matter is before the Court on the Ex 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 has jurisdiction 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-D269

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5-GW-E Document 20

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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 )

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12 Plaintiffs, )

)

13 v. )

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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 to forestall pending the instant hearing on Plaintiffs' Application.

See Soleo Decl., Exh. 1 at 29-31. The City's ordinance affects the classes of airplanes which may
Case 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 a settlement 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 of the 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 of the

9 administrative process of the FAA. The Interim Order further requires the City to provide copies'

10 to the FAA of the notification sent to users (and a list of users to whom the notification was sent),

11 and notifies the City of its 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 of the FAA, who in turn 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, it remains in effect "under

15 its own terms or until superseded." 49 U.S.C. § 461 05(a). It may be amended, modified or suspended

16 by the Secretary or Administrator pursuant to 49 U.S.C. § 461 05(a), or the City may apply for review

17 of the Interim Order by filing a petition 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 of the court sends

20 a copy of the petition to the necessary governmental official. See 49 U.S.C. § 461 l Ofb) and (c);

21 Foster v. Skinner, 70 F.3d 1084, 1087-88 (9th Cir, 1995); Friends of Gateway 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 it has not filed such a petition, the exclusive jurisdiction of the

24 D.C. or Ninth Circuits has not taken effect. While that may be true here, that does not mean that, as

25 a result, this Court has jurisdiction to consider the procedural or substantive merits of the Interim

26 Order. The statutory scheme plainly rests that power with the Department of Transportation, the FAA

27 or, iftbe City files a petition, with the Courts of Appeal. Thus, until the City files a petition 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 or the procedural regularity leading up

3 to the issuance of the Interim Order and the City's arguments in that respect in response to Plaintiffs'

4 Application are misplaced. Cf Federal Maritime Comm 'n v. 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 in venues other than this Court, as discussed above. See 49 U.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, by way ofthis action, that the Court approve of the 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 of Appeal should the :

"

13 City elect to proceed down that route. Therefore, this Court is in no position, either under the lawor

14 by invitation, to forecast the merits of the 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 of irreparable injury' prong because the passage of the statute is itself an implied finding

19 by Congress that violations will harm the public."); Civil Aeronautics Bd. v. Carefree Travel, Inc.,

20 513 F.2d 375, 385 (2d Cir. 1975).

21 In light of the above discussion, the City is ordered:

22 1) To comply with the Interim Order the Acting Director issued on Apri123, 2008;

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Were 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. 0

See Americopters, LLC v. FAA, 441 F.3d 726, 735 (9th Cir. 2006) ("[I]fan FAA order is not final, neither we nor the

district court have jurisdiction over the case [under the APA]."); cf Village of Bensenville v. FAA, 457 F.3d 52, 69 "

(D.C. Cir. 2006); but see Mace v. Skinner, 34 F.3d 854, 857 (9th Cir. 1994). Here, the Interim Order isjust that,

interim, and it remains in effect "under its own terms or until superseded," and may be amended, modified or

suspended by the Secretary or Administrator pursuant to sections 46105{a) and 4611O(a). See Promptair, Inc. v.

Hinson, 1996 U.S, dist. LEX1S 17366, *11-12 (N.D. IlJ., Nov. 21, ]996) ("The fact that the review sought here is ofa

contemplated FAA action, rather than a completed action, is of no effect. Congress intended that any review of FAA

action take place in the courts of appeals.") (Emphasis in original).

3
United States of America, et at v. City of Santa Monica, Case No. CV 08-2695

Initial Thoughts on Filings Submitted in Advance of Preliminary Injunction Hearing

A review of the parties' further briefing on this matter in advance of the preliminary

injunction hearing has generated the following initial thoughts from the 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 all aeronautical users of the Airport that the ordinance's ban

on Class C and Class D aircraft is not in effect.

2) The City argues that the Interim Order itself was unlawfully issued and is facially

invalid, arguing that the statutory scheme under which it was issued only allows such a

hearing where either a hearing was held or there is a "clear safety emergency." Plaintiffs do

not address this argument at all in their Reply papers, presumably because they consider it to

be just one more type of procedural challenge that this Court has no jurisdiction to entertain.

Indeed, even Plaintiffs' argument concerning the facial invalidity of the Interim Order would

arguably be outside of this Court's bailiwick underthe terms of 49 V.S.c. § 46110. As noted

in the Court's TRO, that statute grants exclusive jurisdiction to the Courts of Appeal if and

when Plaintiff files a petition therein, I whereas jurisdiction remains at the agency level

otherwise (other than for purposes of the instant enforcement action).

Of course, the City's objections to Plaintiffs' process are not cavil; the Airport's

operations undoubtedly affect the relative safety of those living within close proximity of it,

and the residents' umbrage should not be surprising. However, even assuming that this Court

may determine whether the Interim Order was, at least on its face, issued in conformity with

the FAA's own procedures and powers, the City has not persuasively demonstrated any flaws

in that respect.

I In its response to the Interim Order at the agency level, the City indicated that it planned to file a petition

for review in a United States Court of Appeals pursuant to 49 U.S.C. § 46110 at some point in time after

May 9, 2008. See Supplemental Order at 3. If such a petition has now been filed, it is unclear just what

power the City believes this Court would retain, even under its own - misguided, in the Court's viewunderstanding of how the jurisdictional scheme operates. In fact, it would seem that this preliminary

injunction proceeding would be moot.
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 a person 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 a purported 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 if the 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 a hearing 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 of time the FAA's investigation is taking, there are methods by

which they may, potentially, be able to challenge that process. See 5 U.S.c. § 555(b) ("With

due regard for the convenience and necessity of the parties or their representatives 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 safety in air commerce." The City also notes that

section 46105(c) is not cited as authority for a 14 C.F.R. § 16.11 order. 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 14 C.F.R. § 16.11(a) effectively allows).

Most importantly, the City has not cited to any case law which supports its limitation

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

"exclusive jurisdiction" provision of section 46110).

2 Rather, as noted in the Court's TRQ, the proper authority for such order would appear to be 14 C.F.R §

16.11(a). Section 16.11 is titled "Expedition and other modification of process." Section 16.J I(a) states

that "[ujnder the authority of 49 U.S.C. 40113 and 47121, the Director may conduct investigations, issue

orders, and take such other actions as are necessary to fulfill the purposes of this part .... " See also Wilson

Air Center, LLC v. FAA, 372 FJd 807, 815 & n.4 (6th Cir. 2004) (noting that "[tjhe regulations provide the

[FAAJ with considerable discretion in choosing how best to fulfill its investigatory duties" and citing,

among other regulatory provisions, section] 6.11); 1ckes v. FAA, 299 F.3d 260, 265 (3d Cir. 2002) ("As to

the FAA's authority to respond to an emergency, Congress has conferred broad power upon the FAA

Administrator to conduct investigations and to issue orders that the Administrator 'considers necessary' to

carry outthe FAA's mandate."); GATXlAirlog Co. v. Evergreen Int'l Airlines, Inc., 81 F.Supp.2d 1003,

1007 (N.D. Cal. 1999) ("The Administrator may prescribe regulations and issue orders she 'considers

necessary' to carry out the 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 also Americopters, 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 of the 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

3 For this proposition, one case the City cites to is Clark v. Busey, 959 F.2d 808, 811 (9th Cir. 1992).

Clark, however, works against the City in at least one respect. It indicates that because the court of

appeals' jurisdiction to review the FAA's final disposition ofa petition is exclusive, "its jurisdiction to

review at that time any procedural irregularities ... is also exclusive." Id. Thus, under Clark, all of the

City's arguments regarding purported procedural irregularities in the FAA' 5 process would be off-limits for

this Court.

4 The City's argument that Plaintiffs' claims are arbitrary and capricious is therefore misguided.

4
Case 2:08-cv-Q2695-GW-E Document 20 Filed OSnW2008 Page 16 of 16

implied finding by Congress that violations will harm the public," the Court need not engage

in any balancing of the 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