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Taylor v. Huerta

United States Court of Appeals, District of Columbia Circuit

May 19, 2017

John A. Taylor, Petitioner
Michael P. Huerta, as Administrator, Federal Aviation Administration, Respondent

          Argued March 14, 2017

         On Petitions for Review of Orders of the Federal Aviation Administration

          John A. Taylor, pro se, argued the cause and filed the briefs for petitioner.

          R. Ben Sperry was on the brief for amicus curiae TechFreedom in support of petitioner.

          Abby C. Wright, Attorney, U.S. Department of Justice, argued the cause for respondent. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General at the time the brief was filed, Michael S. Raab, Attorney, and Paul M. Geier, Assistant General Counsel for Litigation, Federal Aviation Administration. Richard H. Saltsman, Attorney, Federal Aviation Administration, entered an appearance.

          Before: Kavanaugh and Wilkins, Circuit Judges, and Edwards, Senior Circuit Judge.


          Kavanaugh, Circuit Judge.

         Congress has charged the Federal Aviation Administration with maintaining the safety of the Nation's air traffic. As small unmanned aircraft (sometimes known as drones) have become more popular, the number of unmanned aircraft-related safety incidents has increased. In 2015, in an effort to address that trend, the FAA promulgated a rule known as the Registration Rule. That Rule requires the owners of small unmanned aircraft operated for recreational purposes to register with the FAA. Unmanned aircraft operated for recreational purposes are known as "model aircraft, " and we will use that term throughout this opinion. Separately, the FAA published a notice, known as Advisory Circular 91-57A, announcing that model aircraft would be subject to certain flight restrictions in the Washington, D.C., area.

         Petitioner John Taylor is a model aircraft hobbyist who is now required to register with the FAA. He has operated model aircraft from his home in the Washington, D.C., area, and he wants to continue to do so without registering or complying with the new flight restrictions. Taylor filed petitions in this Court to challenge the FAA's Registration Rule and the Advisory Circular.

         To begin, Taylor does not think that the FAA had the statutory authority to issue the Registration Rule and require him to register. Taylor is right. In 2012, Congress passed and President Obama signed the FAA Modernization and Reform Act. Section 336(a) of that Act states that the FAA "may not promulgate any rule or regulation regarding a model aircraft." Pub. L. No. 112-95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA's 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition. We therefore grant Taylor's petition and vacate the Registration Rule to the extent it applies to model aircraft.

         Taylor challenges Advisory Circular 91-57A on the ground that the Circular likewise violates Section 336(a). That Circular prohibits the operation of model aircraft in various restricted areas, including the Flight Restricted Zone around Washington, D.C. But Taylor's petition challenging the Advisory Circular is untimely. By statute, a petitioner must challenge an FAA order within 60 days of the order's issuance unless there are reasonable grounds for delay. 49 U.S.C. § 46110(a). Taylor acknowledges that he filed his petition challenging the Advisory Circular outside the 60-day window. He did not have reasonable grounds for the late filing. His petition for review of Advisory Circular 91-57A is therefore denied.


         Congress has directed the FAA to "promote safe flight of civil aircraft" and to set standards governing the operation of aircraft in the United States. 49 U.S.C. § 44701(a). Congress has also required "aircraft" to be registered before operation. See id. §§ 44101, 44103. To register, aircraft owners must complete a registration process that is quite extensive, as one would imagine for airplanes.

         But the FAA has not previously interpreted the general registration statute to apply to model aircraft. Instead, the FAA has issued an optional set of operational guidelines for model aircraft. The FAA's Advisory Circular 91-57, titled Model Aircraft Operating Standards and published in 1981, provided suggestions for the safe operation of model aircraft. Under that ...

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