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### GREGORY G. KATSAS 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. ) No. CV 08-02695 GW (Ex) 1. Plaintiffs’ Reply Memorandum in Support of Application for Preliminary Injunction; and 2. Declaration of Byron K. Huffman

Plaintiffs’ Reply Memorandum in Support of Application for Preliminary Injunction The Plaintiffs, the United States of Am erica and Mary E. Peters, the United States Secretary of Transportation, respectfully submit this reply memorandum in support of their application for a preliminary injunction, and in response to this Court’s order directing the Defendant, the City of Santa Monica, California (“the City”) to show cause why a preliminary injunction should not issue. As the Plaintiffs demonstrated in their initial memorandum, a preliminary injunction is necessary to ensure that th e City complies with an Interim Cease and Desist Order (“Order”) issued by the Ac ting Director of the Office of Airport Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 1 of 281 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 1 

### As explained below, after the issu ance of the initial Order, the Acting Director has issued a Supplemental In terim Cease and Desist Order, which addresses comments submitted to the agencyby the City in response to the initial Order and restates the grounds for the Order.

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### Safety and Standards of the Federal Aviation Administration (“FAA”). 1 

### The Order directs the City to refrain from enforcing an ordinance that attempts to ban the operation of certain categories of aircraft at Santa Monica Airport (“SMO”). Although the FAA’s Order is “effectiv e under its own terms” under 49 U.S.C. § 46105, the City has indicated that it will not abide by the Order unless this Court enjoins it to do so. This Court has already, correctly, en tered a temporary restraining order directing the City to comply with th e Order. (Order Granting Temporary Restraining Order (“TRO”), Apr. 28, 2008, at 3-4.) This Court should enter a preliminary injunction for the same reasons that it entered the temporary restraining order. First, the Plaintiffs are not only likely, but are certain, to succeed on the only issue that is properly before this Court – namely, whether the City must abide by the terms of 49 U.S.C. § 46105(a), which requires compliance with the FAA’s Order until it is amended, modified, orset aside either by the agency or by a court of appeals. Second, no showing of irreparable harm is needed here, because in an enforcement action such as this onewhere Congress has authorized injunctive relief as part of the statutory scheme , irreparable harm from the denial of enforcement is presumed to occur. In its response to this Court’s show cau se order, the City raises a series of arguments addressed to the substantive or procedural merits of the FAA’s Order. As this Court recognized in issuing the temporary restraining order, the merits of the Order are not before it. The City is welcome to file a petition for review asking a court of appeals to consider its arguments as to the merits of the Order. It may Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 2 of 281 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 2 

### In its response to the Order that it submitted to the FAA, the City asserted that the ordinance came into effect on April 24, and that the City only declined to enforce the ordinance beginning on April 25. The Plaintiffs understand this to be an inadvertent misstatement, rather than a deliberate effort to avoid representations made to the government in this matter

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### not, however, simply refuse to comply withthe Order, force the Plaintiffs to seek injunctive relief from this Court, and ther eby create a second vehicle for its attempt to defeat the FAA’s regulatory efforts. This Court accordingly should enter a preliminary injunction directing the City to comply with the Order, absent relief from that Order by the agency or by anappropriate court of appeals. Background This Court is already familiar with th e factual and legal background that led to the Plaintiffs’ filing of their complaint and application for a temporary restraining order. This memorandum addresses developments in this case subsequent to those addressed in the Plaintiffs’ initial filings. The Acting Director of the Office of Airport Safety and Standards of the FAA issued an Interim Cease and Desist Order to the City on April 23, 2008. On the same date that the Order was i ssued, the undersigned counsel spoke by telephone with counsel for the City. Inthat conversation, the City’s counsel declined the Plaintiffs’ request for vol untary compliance with the Order, absent relief from this Court. The City’s counsel, however, agreed (both in that conversation and in a telephoneconversation the next day) that the City would forswear enforcement of the ordinance un til a hearing on the Plaintiffs’ application for a temporary restraining order would be held. 2 

### This Court held a hearing on April 28. After the hearing, this Court entered a temporary restraining order directing th e City to comply with the Order, and further ordered the City to show causewhy a preliminary injunction should not issue. Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 3 of 281 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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### The Interim Cease and Desist Order, by its own terms, afforded the City the opportunity to submit a response to the FAA, whereby it could present any reasons it believed that the Order should not remain in effect. The City submitted a response to the FAA on May 5; in that re sponse, the City indicated that it intends to file (at some unspecified time after May 9) a petition for review in a court of appeals seeking relief from the Order under 49 U.S.C. § 46110. The FAA has considered the arguments raised by the City in its administrative response. The Acting Director issued a Supplemental Interim Cease and Desist Order on May 12, in which he addressed the City’s comments and restated the reasons that, in his judgment, the City may not enforce its ordinance during the pendency of the FAA’s admini strative proceedings. (Declaration of Byron K. Huffman, attached hereto.) Argument The City is placing itself squarely in vi olation of a valid and effective Order of the FAA by refusing to comply withthe 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. Becau se the City refuses to comply voluntarily with its clear obligation to obey the Or der, the Plaintiffs are entitled to a preliminary injunction. As a general matter, preliminary injunctive relief 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). However, in statutory enforcement actions brought by the federal government, such as the present case, where an injunction is authorized by the statute, the requirementof showing an irreparable injury is Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 4 of 281 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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### 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). 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). As this Court correctly recognized whenit issued its temporary restraining order (TRO at 3), this rule, that the fe deral government need not show irreparable injury to gain injunctive relief, applie s fully to enforcement actions under the Federal Aviation Act pursuant to49 U.S.C. §§ 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 of their claim for enforcement of the Order. In its response to this Court’s show cau se order, the City raises a series of arguments that are apparently directed to the questions of irreparable harm, or of the balance of hardships. The City fails entirely, however, to address this Court’s (correct) holding that the federal government need not make a showing on these questions to gain the injunctive relief thatCongress has authorized. In any event, the Plaintiffs easily satisfy even the traditional test for injunctive relief. I. The Plaintiffs Are Likely to Succeed on the Merits In this case, it is not only likely th at the Plaintiffs will succeed on their claim, it is certain. The Acting Direct or’s Interim Cease and Desist Order (as restated in the Supplemental Interim Cease and Desist Order) instructs the City to cease and desist all efforts to enforce its ordinance. The City insists that it will refuse to comply with the Order, absentdirection from this Court that it must do Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 5 of 281 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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### so. The City, however, may not determine on its own initiative whether it will obey this Order. The Plaintiffs are acco rdingly entitled to relief from this Court enjoining the City to comply with the Order. 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 superseded the Order. The Order thus is valid and binding. The City’s statement of its intent to enforce its ordinance violates the Order, and thus violates the terms of Section 46105, which require compliance with the Order while it is in effect. The City is free to file a petition for review with the court of appeals, which would have “exclusive jurisdiction” to review the Order, or to award any “interim relief” from the Order’s terms. 49 U.S.C. § 46110(c). No provision of law, however, permits the City to violate the Order absent suchrelief either from the FAA or the Court of Appeals. And no provision of law permits the City to justify violations of the Order by questioning the Order’s merits in this Court. See Federal Maritime Comm’n v. South Carolina Ports Auth. , 535 U.S. 743, 762 (2002) (discussing foreclosure of district court review of merits in action to enforce FMC order); see also United States v. Daylight Dairy Prods. , 822 F.2d 1, 2 (1st Cir. 1987) (Breyer, J.) (discussing foreclosure of district court review of merits in action to enforce order under the Agriculture Marketing Agreement Act). The City acknowledges that the court of appeals would hold exclusive jurisdiction to consider any challenges to the validity of the Order. It argues, however (at page 7 of its response), that the appellate court’s exclusive jurisdiction would apply only if a petition had been file d with that court. As no such petition has yet been filed, the City argues, this Court is free to look underneath the Order Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 6 of 281 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 3 

### As discussed above, the City has notif ied the FAA of its intent to file a petition for review of the Order in a court of appeals at an unspecified date after May 9. Given the nature of the City’s arguments in this Court, the Plaintiffs understand the City to concede that, at leas t once such a petition is filed, this Court could not consider the merits of the FAA’s Order, and could only enforce that Order while it remains in effect.

4

### The City also suggests (at page 4 of its response) that the Order is not “proper or valid,” citing to Air California v. Dep’t of Transp. , 654 F.2d 616 (9th Cir. 1981). That case, however, concerned the court of appeals’ dismissal of a petition for review of a non-final order of the FAA. In this case, the Interim Cease and Desist Order has a direct and immediate effect on the City, and the FAA demands immediate compliance with the Order. The Order therefore is a final order for purposes of establishing the court of appeals’ jurisdiction to review it, even though there will be continued admini strative dealings between the City and the FAA on related matters. See generally Mace v. Skinner , 34 F.3d 854, 857 (9th Cir. 1994).

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### and to rule on its merits. 3 

### As this Court recognized when it issued the temporary restraining order (TRO at 2-3), this conclusion does not follow. The fact that a court of appeals has not yet been given the opportunity to exercise its exclusive jurisdiction over review of the Order does not mean that any other court would be empowered to do so. To the contrary, inthe context of the Hobbs Act – which, like the Federal Aviation Act, provides fo r exclusive jurisdiction in the court of appeals for review of certain administrative orders – it is well understood that district courts may not intrude on thatexclusive jurisdiction, even where no appellate petition for review has been file d, and even where the time for filing such a petition has expired. See, e.g., Electromedical Prods., Int’l v. Kessler , 949 F. Supp. 30, 32 (D.D.C. 1997). 4 

### At bottom, the City argues (at page 8 of its response) that it is “high-handed” for the FAA to seek to enforce th e Order while precluding the City from questioning that Order. But the City is in no sense precluded from raising its arguments against the validity of the Order. It was afforded the opportunity to Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 7 of 281 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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### respond to the FAA, and it has exercised that opportunity. It also may, at any time, file a petition for review with the court of appeals, as both the Plaintiffs and this Court (see TRO at 2), have repeatedly info rmed it. The City has not yet exercised that right, but no action either by the Plaintiffs or this Court has prevented it from doing so. 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, howev er, 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 ar e certain, to succeed on their claim for enforcement of the Interi m 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 cleardanger 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. As noted both in th e Interim Cease and Desist Order and the Supplemental Interim Cease and Desist Or der, there currently are approximately 9,000 aircraft operations of C and D aircraftat 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, have their own limitations on the capacity that they can absorb. The ban would create congestion and delays, and interfere with safe and efficient use of the air space in the Los Ange les area. In addition, the effect of the ordinance, if other airport operators wereto follow suit, would multiply the impact Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 8 of 281 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 5 

### This Court has correctly recognized that the Plaintiffs do not ask it to approve or disapprove of the substance of the Order. (TRO at 3.) The Plaintiffs pause only to note that, for the same reas on that the City fails in its (legally irrelevant) claim that the balance of equitie s lies in its favor, the City also is likely to be ultimately held in violation of its various obligations under the Federal Aviation Act, for example, its obligation under 49 U.S.C. § 47107(a) as a federal grant recipient to make its airport available for use on reasonable conditions and without unjust discrimination.

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### of local efforts to interfere with the uniform operations of the federal aviation system. The City attempts to justify this interference with the federal aviation system by claiming a safety need for a ban on Category C and D aircraft. Its arguments on this score, however, fail to show any basi s to conclude that these aircraft pose a greater safety hazard than do Category A or B planes. As the City correctly acknowledges (at page 20 of its memorandum), all of the overruns to date at SMO have involved only Category A or B airc raft. Although the City has submitted a declaration that purports to list overruns at other airports, it fails to acknowledge that several of the incidents in its list involved A or B aircraft. The City’s list demonstrates the wisdom of th e adage that “the plural of ‘anecdotes’ is not ‘data’”; a complete review of the data on overruns shows that, nationally, C and D aircraft

are lesslikely to overrun runways than are A and B aircraft. (See Supplemental Interim Cease and Desist Order at 8, attach ed to Huffman Declaration.) The City’s purported distinction between these categories of aircraft, therefore, simply lacks a factual basis. 5 

### The ordinance’s interference with re gional and national aviation operations presents a possibility 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 Or der, which seeks only to preserve the Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 9 of 281 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28

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### status quo in which Category C and Cate gory D aircraft have operated without incident for over twenty years. Conclusion For the foregoing reasons, the Plaintiffs respectfully request that the Court enter a preliminary injunction that will en join the Defendant, the City of Santa Monica, California (“the City”): 1. To comply with the Supplementa l 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 May 12, 2008; 2. To cease and desist from the en forcement of Santa Monica, Cal., Mun. Code § 10.04.06.220 (2008) during the pe ndency 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. Dated: May 12, 2008 Respectfully submitted, GREGORY G. KATSAS Acting Assistant Attorney General THOMAS P. O’BRIEN United States Attorney ARTHUR R. GOLDBERG Assistant Branch Director

/s/ Joel McElvain JOEL McELVAIN Trial Attorney United States Department of Justice Civil Division, Federal Programs Branch 20 Massachusetts Ave., NW, Room 7130 Washington, D.C. 20001 Telephone: (202) 514-2988 Fax: (202) 616-8202 Email: Joel.McElvain@usdoj.gov Attorneys for the Plaintiffs Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 10 of 28v. Declaration of Byron K. Huffman GREGORY G. KATSAS cting Assistant Attorney General THOMAS P. O'BRIEN nited States Attorney RTHURR. GOLDBERG ssistant Branch Director OEL McELVAIN, D.C. Bar No. 448431 Trial Attorney .S. Department of Justice Civil Division, Federal Programs Branch 

## o Massachusetts Ave., NW Washington, DC 20001 Telephone: ~202U 14-2988 ax: 202 616-8202 mail: oel. cElvain@usdoj.gov

ttorneys for the Plaintiffs

IN THE UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA

WESTERN DIVISION ITED STATES OF AMERICA, and ARY E. PETERS, United States Secretary of Transportation, No. CV 08-02695 GW (Ex)

Plaintiffs,

CITY OF SANTA MONICA,

Defendant.

1. I, Byron K. Huffman, Acting Director of the FAA Office of Airport Safety and Standards at the Federal Aviation Administration, hereby declare as follows pursuant to the provisions of

28 U.S.C. § 1746. 2. I have been employed with the Federal Aviation Administration ("FAA") since September

2001. I have been acting Director since May 5, 2008. Prior to serving as Acting Director, I

1 03cv1438 Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 11 of 28have been the Manager of the Airports Division in the FAA Alaskan Region with offices in

Anchorage, Alaska for 6 1/2 years.

3. On May 12,2008, I issued a Supplemental Cease and Desist Order, ordering the City of

Santa Monica (City) to immediately suspend enforcement of its Ordinance, (effective April 24,2008), banning Category C and D aircraft operations from Santa Monica Municipal Airport (SMa). A true copy of the executed Interim Cease and Desist Order is attached

hereto as Exhibit 1.

I declare, under penalty of perjury, pursuant to 28 U.S.C. § 1746, that the foregoing is true and correct.



### ,~ , cting Director FAA Office of Airport Safety and Standards

Executed on the 12 day of May, 2008, at Washington, D.C.

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### CERTIFICATE OF SERVICE I hereby certify that, on May 12, 2008, I caused the foregoing documents to be filed with the Court through its electronic case filing system. The electronic filing of these documents constitutes service on the following: Martin T. Tachiki, Esquire Deputy City Attorney 1685 Main Street, Room 310 Santa Monica, California 90401

/s/ Joel McElvain JOEL McELVAIN Attorney Case 2:08-cv-02695-GW-E Document 16 Filed 05/12/2008 Page 28 of 28