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COGR Motion for Abeyance

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COGR Motion for Abeyance
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    IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT  UAS AMERICA FUND, LLC, et al. , Petitioners , v. FEDERAL AVIATION ADMINISTRATION,  Respondent  .  Nos. 14-1156, et al.   MOTION TO HOLD PETITIONS IN ABEYANCE The Council on Governmental Relations (“COGR”), 1  petitioner in No. 14-1157, respectfully requests that this Court hold in abeyance these consolidated  petitions for review and direct the parties to provide periodic 90-day status reports on the Federal Aviation Administration’s (“FAA”) consideration of public comments on the order under review (“Order”). The FAA has indicated that it does not oppose this motion. Petitioners in Nos. 14-1156 and 14-1158 have indicated that they do not consent to the motion and intend to respond in writing. In the Order, 79 Fed. Reg. 36,172 (June 25, 2014), the FAA stated that it was providing its “interpretation of [the] statute and regulations relevant to model 1  As explained in its petition for review, COGR is an association of 188 U.S. research universities and their affiliated academic medical centers and research institutes that concerns itself with the impact of federal regulations, policies, and  practices on the performance of research and other sponsored activities conducted at its member institutions. USCA Case #14-1156 Document #1514260 Filed: 09/26/2014 Page 1 of 5    2 aircraft,” effective as of June 23, 2014; it nevertheless solicited comments from the  public and indicated that it “may modify this interpretation based on comments received.”  Id.  at 36,172. The FAA srcinally set July 25, 2014 as the due date for comments. See id. It later extended that due date to September 23, 2014. See 79 Fed. Reg. 43,240 (July 25, 2014). As of the date of this motion, regulations.gov showed a total of 33,480 comments received on the relevant docket, of which 7,011 comments were publicly available on the website. 2  Many commenters have urged the FAA to modify or abandon positions set forth in the Order. Whether or not the agency is open to doing so, its response to those comments may lead at least to a more detailed expression of the agency’s  position on important issues that will facilitate effective judicial review. Based on a brief review of the voluminous comments, COGR believes that they address a number of points that are likely to be important to these consolidated petitions, including the FAA’s statutory authority to regulate model aircraft; the consistency of the agency’s new interpretation of its statutory authority with its past  pronouncements; and the heavy burden placed by the FAA’s new interpretation of 2   See Docket Folder Summary,  Interpretation of the Special Rule for Model  Aircraft  , http://www.regulations.gov/#!docketDetail;D=FAA-2014-0396 (last visited Sept. 26, 2014) (showing 33,480 comments received and 7,011 comments available). A date-limited search indicates that 6,337 of the currently publicly available comments were received on or before the due date of September 23, 2014. COGR itself did not file comments. USCA Case #14-1156 Document #1514260 Filed: 09/26/2014 Page 2 of 5    3 its authority on the research and teaching activities of nonprofit educational institutions such as COGR’s members. As a practical matter, the present situation is similar to a situation in which some parties have sought immediate review of an agency order, while other parties seek reconsideration before the agency. Under those circumstances, it is this Court’s longstanding practice to “hold [the] petition[s] for review in abeyance  pending ... further [agency] proceedings.” Teledesic LLC v. FCC  , 275 F.3d 75, 82-83 (D.C. Cir. 2001). 3  Here, although the FAA has not indicated an intent to revise the Order, its apparent willingness to accept and consider comments may  play a functionally similar role. If abeyance is granted, however, the Court should require regular status reports from the parties to ensure that the FAA’s consideration of the comments is  progressing at an appropriate pace. As COGR indicated in its petition for review, the Order was issued together with a new national enforcement policy that imposes immediate hardship on COGR’s members, who have used and intend to use model aircraft technology to engage in teaching, research, and other scientific and educational activities that the Order now asserts are subject to or even prohibited 3   See also ,  e.g. ,  Northpoint Tech., Ltd. v. FCC  , No. 02-1194, 2002 WL 31011256 (D.C. Cir. Aug. 29, 2002) (per curiam) (holding case in abeyance pending agency resolution of a petition for administrative reconsideration);  American Trucking  Ass’ns, Inc. v. EPA , No. 97-1440, 1998 WL 65651 (D.C. Cir. Jan. 21, 1998) (per curiam) (same);  B.J. Alan Co. v. ICC  , 897 F.2d 561, 562 (D.C. Cir. 1990) (describing an earlier grant of a motion to hold in abeyance on the same ground). USCA Case #14-1156 Document #1514260 Filed: 09/26/2014 Page 3 of 5    4  by federal aviation regulations. If the FAA delays in responding to the comments it receives, and especially if it does so while pursuing the enforcement agenda apparently contemplated by its new policy, the balance of “prudential considerations” may shift in favor of immediate judicial review. Teledesic , 275 F.3d at 83 (citing  MCI Telecomms. Corp. v. FCC  , 143 F.3d 606, 608 (D.C. Cir. 1998)). COGR respectfully suggests that a 90-day status reporting cycle would be appropriate under the circumstances. Respectfully submitted,  /s/    Sean A. Lev  S EAN A.   L EV  G REGORY G.   R  APAWY  K  ELLOGG ,   H UBER  ,   H ANSEN ,   T ODD , E VANS &   F IGEL ,   P.L.L.C. 1615 M Street, N.W., Suite 400 Washington, D.C. 20036 (202) 326-7900 Counsel for Council on Governmental Relations September 26, 2014 USCA Case #14-1156 Document #1514260 Filed: 09/26/2014 Page 4 of 5
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