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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 America 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 the City complies with an Interim Cease and

Desist Order (“Order”) issued by the Acting Director of the Office of Airport

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1

 As explained below, after the issuance of the initial Order, the Acting

Director has issued a Supplemental Interim Cease and Desist Order, which

addresses comments submitted to the agency by 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 “effective 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, entered a temporary restraining order

directing the City to comply with the 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, or set 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 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 its response to this Court’s show cause 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

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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 with the Order, force the Plaintiffs to seek

injunctive relief from this Court, and thereby 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 an appropriate court of appeals. 

Background

This Court is already familiar with the 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 issued, the undersigned counsel spoke by

telephone with counsel for the City. In that conversation, the City’s counsel

declined the Plaintiffs’ request for voluntary compliance with the Order, absent

relief from this Court. The City’s counsel, however, agreed (both in that

conversation and in a telephone conversation the next day) that the City would

forswear enforcement of the ordinance until 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 the City to comply with the Order, and

further ordered the City to show cause why a preliminary injunction should not

issue. 

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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 response, 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 administrative proceedings. (Declaration of

Byron K. Huffman, attached hereto.) 

Argument

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 voluntarily

with its clear obligation to obey the Order, 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 requirement of showing an irreparable injury is

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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 when it issued its temporary restraining

order (TRO at 3), 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 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 cause 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 that Congress 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 that the Plaintiffs will succeed on their

claim, it is certain. The Acting Director’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, absent direction from this Court that it must do

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so. 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.

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 such relief 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 filed with that court. As no such petition

has yet been filed, the City argues, this Court is free to look underneath the Order

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3

 As discussed above, the City has notified 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 least 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 administrative 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, in the context of the Hobbs Act – which,

like the Federal Aviation Act, provides for exclusive jurisdiction in the court of

appeals for review of certain administrative orders – it is well understood that

district courts may not intrude on that exclusive jurisdiction, even where no

appellate petition for review has been filed, 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 the 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

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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 informed 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, 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. As noted both in the Interim Cease and Desist Order and the

Supplemental Interim Cease and Desist Order, there currently are approximately

9,000 aircraft operations of C and D aircraft 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, 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 Angeles area. In addition, the effect of the

ordinance, if other airport operators were to follow suit, would multiply the impact

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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 reason that the City fails in its (legally

irrelevant) claim that the balance of equities 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 basis 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 aircraft. 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 the 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 less likely to overrun runways than are A and B aircraft. (See Supplemental

Interim Cease and Desist Order at 8, attached 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 regional 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 Order, which seeks only to preserve the

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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 preliminary injunction that will enjoin the Defendant, the City of Santa

Monica, California (“the City”):

1. To comply with the Supplemental 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 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.

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 28
v.

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 28
have 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.

2

03cv143

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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

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