Drone Lawsuits

Interested in learning about drone lawsuits?

I have compiled the various drone lawsuits/litigation/prosecutions into the list below.

There has been a wide range of drone-related cases in the last couple of years ranging from flamethrowers mounted on drones to a drone crashing into a wedding guest.  I’m going to refer them collectively as drone lawsuits.

Some of the drone lawsuits I have written in-depth articles on, while other drone lawsuits I might just cite an article.  If you know of a drone lawsuit that I have NOT put up here, please send me an email! :)

The drone lawsuits list below is broken up into Federal courts, Federal administrative courts (e.g. NTSB), and then state courts. Note that for criminal cases, I ONLY included cases where the prosecutor has chosen to file charges. There are many more individuals who have been arrested for flying a drone but the prosecutors for whatever reason did not choose to file charges. I did not include any drug transportation or prison-drop related prosecutions since those really aren’t drone cases but just drug or contraband cases. 

Notice: I try to keep this drone lawsuits list up to date. This page MIGHT not be up to date with rulings. Think of this page more of a starting point to research further into the final outcomes. 

If you are a person who has a drone-related mater outside of Florida, but you want to work with me, hire a local attorney in your state and tell them to contact me. If you are an attorney and need my help for a drone-related matter, please contact me.

Quick Summary on Drone Lawsuits/Litigation:

Most of the criminal cases tend to be prosecuted under the state law equivalent of careless and reckless endangerment or something along those lines. The other batch of prosecutions has to do with violations of exporting technology associated with military drones.

DJI’s lawsuits involve them being on the receiving end of a class action or DJI being the plaintiff in a patent infringement lawsuit.

Then there is everything else. The civil drone lawsuits are all over the place (an Equal Protection Clause challenge against a state drone law, injured people suing drone flyers, products liability, breach of contract, etc.).

Drone Lawsuits in Federal Courts

Federal Circuit Court

• EPIC v. Department of Transportation– EPIC is suing claiming the Drone Advisory Committee’s use of sub groups that are meeting privately is a violation of the Federal Advisory Committee Act. There are other claims but that is the big one. The D.C. District Court ruled against them and EPIC is appealing it to the D.C. Circuit Court of Appeals.
• John Taylor v. FAA II  (4th case)- Adjudicated.
• John Taylor v. FAA I (Really 3 cases. Court consolidated them. ) –  Adjudicated. Taylor beat the FAA. D.C. Circuit held the drone registration rules were illegally created. Keep in mind the National Defense Authorization Act of 2017 overruled this case.
• Tech Freedom v. FAA – Voluntarily dismissed because this missed statutory time to file. They joined as an amicus brief to the Taylor I set of cases.
• EPIC v. FAA  II (2016) – Adjudicated.
• UAS AMERICA FUND, LLC, SKYPAN INTERNATIONAL INC., PETER SACHS (individually and d/b/a Drone Pilots Association), and FPV MANUALS, LLC (d/b/a GetFPV and Lumenier),  – This case has been in abeyance. The plaintiffs were challenging the FAA’s 2014 model aircraft interpretation as violating Section 336 of the FAA Modernization and Reform Act of 2012.
• Academy of Model Aeronautics v. FAA – This case has been in abeyance since 2014. Same thing as above.
• EPIC  v. FAA I (2015) – Dismissed.
• Texas Equusearch v. FAA – Dismissed by the court because an email from a FAA investigator was not the FAA’s final consummation on the issue.

Federal District Court

• United States v. Jason Muzzicato. Jason is alleged to have used a DJI Phantom 3 with explosives to terrorize his ex-girlfriends house. Failing to register the drone is one of the count.
• United States v. Eric Lee Brown. Prosecuted for a drone drug drop but what is really interesting is one of the criminal charges was for failing to register the drone. There was a plea agreement.
• Autel Robotics USA LLC v. DJI -patent infringement action case in US District Court for the Southern District of New York. Complaint here.
• EPIC v. FAA, Drone Advisory Committee RTCA, & more. – Lawsuit under the Administrative Procedures Act and the Federal Advisory Committee Act to obtain records from the the Drone Advisory Committee.
• Robert Taylor v. FAA – Class action lawsuit over the registration regulations currently being litigated in the D.C. Circuit seeking around $840 million in damages and fees. Dismissed.
• Reichert v. FAA – Currently being litigated. Class action lawsuit against the FAA seeking to destroy the FAA registry and get the money back to all those who have registered.
• Singer v. City of Newton – Struck down the local drone law as illegal.  Federal District Court of Massachusetts struck down the local drone ordinance as being unconstitutional. It was appealed by the City to the appeals court but the City asked for the case to be dismissed which the court granted.
• FAA v. Haughwout case (the kid with the gun and the drone) is currently being litigated a federal district court in Connecticut and the only order was that the FAA’s subpoena powers were very broad.
• Flores v. State of Texas -Southern Federal District Court of Texas  case on whether the Texas state drone law violates the Equal Protection Clause.
• FAA v. Skypan case in the federal North District Court of Illinois.
• Boggs v. Meredith case in the federal Western District Court of Kentucky which was dismissed. Boggs’ drone was shot down by Meredith. Boggs sued in federal court claiming the drone was in navigable airspace (which means he was not trespassing in Meredith’s airspace) and was entitled to compensation. The court dismissed the case because the court did not have the subject matter jurisdiction to decide the case and the case should be resolved in Kentucky state court.
• DJI v. Yuneec – DJI is suing Yuneec alleging patent infringement.
• DJI v. Autel –  DJI files a patent infringment lawsuit.
• Garmin v. uAvionix- Garmin filed suit against uAvionix for patent infringement.
• Sives v. DJI  – Class Action lawsuit against DJI regarding software update that allegedly damaged the drones.
• Bard College’s Center for the Study of the Drone published an article detailing multiple prosecutions under ITAR.
• Justice Laub v. Nicholas Horbaczewski et al – Laub alleges that Horbaczewski breached a contract. They are demanding $9,900,000 from Horbaczewski and Drone Racing League, Inc.  Both Horbaczewski and Drone Racing League, Inc. have sued in New York state court asking for a declaration that Laub is not an owner of Drone Racing League.
• United States v. Porrata – Defendant was sentenced to 5 years in prison and a $1.5 million fine for scamming investors with their sham drone manufacturing company.
• Hobbico is doing Chapter 11 banktupcy.
• Ehang filed for Bankruptcy. 
• The Inspector General for the Department of Transportation mentioned that their have been some investigations by the Department of Transportation against drone flyers.  “Finally, prosecuting UAS owners who violate FAA regulations or engage in illegal flight activities has been challenging. Since 2016, our Office of Investigations has opened 23 cases involving illegal operation of UAS. However, 10 of these cases were closed in the preliminary complaint phase, and were declined for prosecution for various reasons, such as the inability to prove criminal intent and a lack of prior prosecutions. Ultimately, further attention is needed to ensure FAA has strong oversight and enforcement mechanisms in place so it can effectively identify violations and mitigate the safety risks associated with increased UAS operations.”
• Philadelphia Indemnity Insurance Company v. Hollycal Production, Inc. et al. Filed April 16, 2018 in California Central District Court. Holly Cal Productions was hired to film a wedding which resulted in a patron being hit in the eye and going blind.  The lawsuit is surrounding the insurance policy’s aircraft exclusion.
• QFO Labs, Inc. v. Parrot, Inc., Parrot S.A., and Parrot Drones, S.A.S., – QFO sued Parrot for patent infringement.
• UNITED STATES OF AMERICA v. CORVUS EYE PRODUCTIONS LLC – FAA was investigating Corvus and the owner. They sent a subpoena to the owner of Corvus. One thing led to another and the FAA worked with a U.S. Attorney to request a federal judge to order Corvus and owner to comply with the subpoena. The judge ordered the subpoena because the owner defaulted.

United States Court of Federal Claims

• ADVANCED AEROSPACE TECHNOLOGIES, INC. v. THE UNITED STATES, THE BOEING COMPANY, and INSITU, INC – Patent infringement case.

FAA and/or National Transportation Safety Board

From the U.S. Government Accountability Office report dated October 17, 2019,

“Of the 158 enforcement investigations opened from October 2015 to October 2018, 98 resulted in administrative action or legal enforcement action, such as a warning notice or a civil penalty. Of the 98 completed actions, 51 involved the assessment of civil penalties, 44 resulted in administrative actions, and 3 resulted in the suspension or revocation of UAS remote pilots’ certificates, according to the data FAA provided. During this time frame, FAA levied civil penalties ranging from $250 to $55,000.”

From the U.S. Government Accountability Office May 2018 report,

• In the matter of Space-Crafting, Inc. – Before DOT Administrative Law Judge.
• FAA v. Pirker case that was all over the news was appealed only up to the full National Transportation and Safety Board (NTSB).
• See my  23 FAA enforcement actions analysis below.
• FAA v. Mical Caterina – FAA started investigating Mical for a flight. FAA subpoened him. Mical sent in some information. FAA prosecuted Mical for $55,000.
• FAA v. Ralph Rebaya– FAA revoked the private pilot certificate of Rebaya.
• Conflicting numbers:
  • At least 70 enforcement actions since 2014. A senior attorney from the FAA had this in this slide from the 2018 FAA Symposium.
  • 49 as evidenced from the GAO report on page 32.

Federal International Trade Commission

• Autel filed a complaint against DJI in the Federal International Trade Commission. on August 30, 2018.

Federal Communications Commission

• FCC went after Hobbyking with a 2.8 million fine for selling all sorts of illegal products. ARRL appears to have informed the FCC on these issues.
• Lumenier Holdco LLC f/k/a FPV Manuals LLC settled with the FCC with a $180, 000 fine along with some actions they will take because they sold non-compliant equipment.
• FCC went after Horizon Hobby. They ended up settling for $35,000.
• Hobby Lobby selling transmitters used in toy aircraft, boats, etc. 
• FCC going after ABC Fulfillment Services LLC d/b/a HobbyKing USA LLC and HobbyKing.com; and Indubitably, Inc. d/b/a HobbyKing Corp., HobbyKing USA LLC, HobbyKing, and HobbyKing.com regarding transmitters.
• Hobby Lobby marketing and selling Pilot View FPV 2400.

Other: (Because I don’t know anything else).

• Department of Transportation has been doing some investigations on some UAS operators.  The DOT IG’s office testified, “Since 2016, our Office of Investigations has opened 23 cases involving illegal operation of UAS. However, 10 of these cases were closed in the preliminary complaint phase, and 9 were declined for prosecution for various reasons, such as the inability to prove criminal intent and a lack of prior prosecutions.”  23-10-9= 4 still open?

Drone Lawsuits in State Courts

California 

• Mark Anderson v. Aerovironment Inc., Et. Al. – Wrongful termination case in Los Angeles Superior Court where Anderson he was wrongfully terminated because the defendant transported at least one drone with a live bomb on a Delta airlines flight. Bloomberg article on it. In-depth investor report on it.
• Telling v. DJI – Class action lawsuit against DJI in Los Angeles Superior Court
• City of San Francisco v. Lily – The district attorney for San Francisco is suing the company Lily for false advertising and unfair business practices.
• City of Los Angeles v. Arvel Chapel – Not Guilty. Criminal prosecution by the city under their city ordinance. The jury held Arvel not guilty.
• Joe v. McBay – Small claims case. McBay shot down Joe’s drone. The judge ordered McBay to pay for the shot-down drone.
• Pituch v. Pi Kappa Phi
• Pituch v. Perfect Event Inc. – Pi Kappa Phi of the University of Southern California hired Perfect Event to throw a party. One of the two defendants hired the drone operator who crashed the drone into the plaintiff’s head. She is suing both defendants for negligence and premises liability.
• Darshan Kamboj v. Hollycal Productions, et al. San Bernardino County Superior Court Case Number CIVDS1714762. This is the underlying action with the Philadelphia Indemnity Insurance Company v. Hollycal Production, Inc. et al. case. Basically,  Holly Cal Productions was doing a wedding shoot and the drone flew too low and struck a lady in the eye which resulted in blindness.

Colorado

• Boustred & Horizon Hobby v. Align Corporation – On appeal, court affirmed lower courts judgment denying Align’s motion to dismiss the case against them. Align is a Taiwanese company who sells model aircraft through Horizon Hobby. Boustred lost an eye when the toy helicopter broke and is now suing Align and Horizon Hobby under strict product liability. The appeals court affirmed the trial courts ruling that personal jurisdiction can be held over a Taiwanese company.
• Richard T. Jacky and Tamsin Jacky v. Parrot, S.A. et al. – Products liability lawsuit where a guy injured his eye with a Parrot rolling spider drone.

Connecticut

• Pedro Rivera, v. Brian Foley, Edward Yergeau, & Hartford Police Department– Plaintiff works for a TV station and responded to a police scene while NOT working (his own free time). Plaintiff flew his drone and the police officer responded to the plaintiff’s flight. Police officer called Plaintiff’s employer and made suggestions that Plaintiff should be disciplined to maintain goodwill. Plaintiff was suspended for a week. Plaintiff sued claiming his constitutional rights were violated.

Florida

• Prioria Robotics, Inc. v Condor Aerial, LLC – Prioria (a drone manufacturer) sued for breach of contract to get Condor to pay $90,000+ they believed Condor owed them.  Condor counterclaimed for conversion, tortious interference, civil theft, trade secret violations, breach of contract, deceptive trade practices, etc. The case went to trial and a jury returned a verdict that Condor suffered $1.3 million in damages.

Kentucky

• Commonwealth of Kentucky v. Meredith – The famous “drone slayer” case where Meredith shot down the drone. He was prosecuted for criminal mischief and wanton endangerment. The judge dismissed the case saying, “He had a right to shoot at this drone, and I’m gonna dismiss this charge[.]” Note: there is also a federal district court case associated with this case.

Nevada

• Nourmand v. Caesar’s Palace, Great Lakes Drone Company, Matthew Quinn. A drone crashed into a lady during a drone night show at Caesar’s Palace in Las Vegas. 

New Hampshire

• Ellis v. Billcliff
• Ellis v. Searles Castle – Billcliff, the groom, was getting married at Searles Castle. He was flying a drone. He went to go dance and put his drone down. Someone flew the drone and crashed it into a wedding guest, Ellis. She is now suing Billcliff and also the Searles Castle for damages.
• Eaton, the other girl injured along with Ellis, is also suing Billcliff and Searles Castles.

New Jersey

• Russel Percenti shot down a drone and was prosecuted for possession of a weapon for an unlawful purpose and criminal mischief.

New Mexico

• State of New Mexico v. Norman Davis – while not directly a drone case, the appeals and New Mexico court did discuss drones and the 4th Amendment.

New York

• State v. Beesmer – Adjudicated not guilty. Flew his drone outside a hospital and was charged with unlawful surveillance. Held not guilty by jury.
• State v. Daniel Verley –  New York City teacher crashed his drone into U.S. Open tennis match. He was prosecuted. They entered a plea deal to do community service.
• State v. Riddle –  Guy crashed into the Empire State Building. Was prosecuted. Pleaded guilty to disorderly conduct. He has to pay a $200 fine and complete two days of community service.

North Dakota

• State v. Turgeon – Adjudicated not guilty. Criminal prosecution for flying a drone allegedly near an airplane near the Dakota Pipeline protests. He was charged with a felony and two misdemeanors.
• State v. Dewey – Criminal prosecution for stalking. Dewey was flying a drone during the Dakota Pipeline protests.
• State v. Brossart – Not really a drone case, but a predator drone was used to track down a man. The crazy part is this was in 2012! This is more of a 4th amendment case.

Pennsylvania

• Commonwealth v. Roselli.  Adjudicated guilty and put on probation for 2 years. Roselli flew his drone  near a helicopter. He was charged with risking a catastrophe (felony) and recklessly endangering another person (misdemeanor).  He did a plea deal. He pleaded nolo contedere to the misdemeanor and the prosecutor dropped the charges for the felony. He was put on probation for 2 years and to pay court costs.

Tennessee

• State v. Haddox – Haddox was flying his drone during “CMA Fest activities and the Predators watch party on Broadway.” He was arrested and charged with reckless endangerment and trespass. The “reckless endangerment charge stems from Haddox being unable to maintain line of sight of the drone and flying it over a ticketed event with thousands of persons present.” The two dockets are here.

Washington State

• City of Seattle v. Skinner – First drone flyer ever to be sentenced to jail for flying a drone. He flew over a gay pride parade and the drone crashed into a woman.
• The woman who was injured is suing Skinner to recover damages for the crash.
• City of Seattle v. Kelley – This is the famous Seattle Space Needle crash that was all over the internet.  Kelley was charged with reckless endangerment. He pleaded guilty to reckless endangerment and “received a suspended jail sentence of 364 days after entering his guilty plea” and “was also fined $5,000 with $4,750 suspended.”

Wisconsin

• The Village of DeForest v. Alexei Strelchenko – Convicted by jury. He had two municipal citations for disorderly conduct in connection with flying a drone. The appeals court affirmed.

Other:

GoPro received a class action shareholder lawsuit. The lawsuit surrounds statements made by the CEO regarding their drone which was later canceled.  A second class action against GoPro was also filed. 

FAA Enforcement Actions Prior to June 2016.

Keep in mind that Part 107 or 101 was not in effect at this time.

(June 11, 2016)  – Recently released documents from a FOIA request reveal a total of 23 FAA enforcement actions against drone operators. Here are the important take-aways I’ve found with the cases that have been released via Jason’s great work over at Motherboard.

Quick Summary (Explanations and Graphs Below)

• Not everything was released.
• None of the regulations that are exempted in a typical Section 333 (now called Section 44807) exemption were cited.
• None of the notices or orders say anything about 333 exemptions.
• Two drone companies were targeted.
• Defendants received reduced penalties when an attorney was involved.
• No one had a 333 exemption in effect at the time of the flights.
• Two certificated pilots were targeted.
• 1 case started with a subpoena.
• 151 days is the average from the date of the first violation to a notice from the FAA.
• Phantoms were the most popular aircraft.
• Many of the flights occurredin Class B Airspace.
• The FAA enforcements appear to be spread out chronologically but not geographically.
• 4 of the flights were commercial.
• 5 notices or orders mentioned the loss of line of sight in the facts justifying a violation of the prohibition on careless and reckless flying.
• 9 of the cases also had some type of arrest or fine under state or local law for the flight.
• The FAA did NOT charge the defendants with all the regulations that were violated.

Note: I’m not going to be citing directly to legal sources because I don’t want to educate my competition. Take a look at my drone attorney bio and you’ll see a graph of the drone law firms with the number of 333 exemptions they have filed. You’ll see that a really large majority of them don’t have much drone law experience. Remember, when hiring an attorney, don’t hire a poser, hire an attorney who is a commercial pilot.

If you want to use the graphs, I only require that you leave the watermark intact. :)

Not everything was released.  There are more enforcement actions that I know of than what was released. I won’t say anything else so as to not “inflame” their situations due to media attention.

None of the regulations that are exempted in a typical Section 333 (now called Section 44807) exemption were cited. This is a very important point. A 333 would provide a defense to those charges, provided the operator was following the exemption, but you have to remember, all the regulations apply. The 333 only exempts you from some of the regulations, not ALL. The 333 exemption isn’t your own little world to operate in. The Federal Aviation Regulations still apply.

Compare with the regulations that are in an exemption:

• 14 C.F.R. § 61.23(a) & (c)
• 14 C.F.R. § 61.101(e)(4) & (5)
• 14 C.F.R. § 61.113(a)
• 14 C.F.R. § 61.315(a)
• 14 C.F.R. § 91.7(a)
• 14 C.F.R. § 91.119(c)
• 14 C.F.R. § 91.121
• 14 C.F.R. § 91.151(a)(1)
• 14 C.F.R. § 91.405(a)
• 14 C.F.R. § 91.407(a)(1)
• 14 C.F.R. § 91.409(a)(1) & (2)
• 14 C.F.R. § 91.417(a) & (b)

What is the take away here? Everyone of the flights could have been cited with many more violations of the regulations. The FAA left a lot on the table with charges. So why would anyone get a 333? Because the 333 exemption would keep additional charges from the second list above “off the table,” provided you were operating under the 333. It would be beneficial as a partial defense.

Another take away is that the FAA treats 91.13(a) like bacon, they put it on everything to make it better.

None of the notices or orders say anything about 333 exemptions. This does give us a clue of the future dynamics when everyone has a 107 certificate. A 107 certificate being suspended or revoked would be bad when mostly everyone has one in the future. Remember that suspension actions, civil penalties, and revocations go on your record.

Two companies were targeted. Most individuals think the FAA is targeting individuals only but they have targeted at least two companies here. Without getting into the distinctions of how involved the drone operators were involved in the companies fined, this is one of the reasons why large companies hire 333 operators so they are not “on the hook” for the flight of the drone operator. What is interesting is the FAA didn’t go after the individuals operating the drones as well! However, SkyCamUSA, LLC managed to escape this but their pilot David Quinones, the “mistletoe” pilot from back in 2014 who cut a reporters nose, received a pilot license suspension of 90 days while the company was not fined separately. Future enforcement actions could see the 333 operator AND the pilot on the receiving end of enforcement actions.

Defendants received reduced penalties when an attorney was involved. Except for Skypan, because it has not yet settled, every case that had an attorney representing the defendant resulted in a reduction in the proposed civil penalty from the original notice. In the following graph, the cases where an attorney was involved are navy blue while the pro se defendants are light blue.

One important thing to remember is that the attorney-client privilege applies to communications between an attorney and his client, not an attorney and a “consultant.” This is an important distinction because a prosecutor could subpoena the consultant to turn over documents or to testify as a witness in an enforcement action against you!

No one had a 333 exemption in effect at the time of the flights. Four of the flights were commercial but the operators didn’t have 333s in effect at the time. This means we don’t know if the FAA has or will pull a 333/COA as part of an enforcement action.

Two certificated pilots were targeted. Two of the cases involved people with pilot licenses. A student pilot license was voluntarily revoked for a reduction in fine from $5,000 to $3,000 and a commercial certificate was voluntarily suspended for 90 days. These will show up on their airmen records. As time goes on, many more people are obtaining manned aircraft certificates or their 107 certificate.

1 case started with a subpoena. There are three situations, at least that I know of, where subpoenas have been issued at the front end to go on fishing expeditions to figure out more evidence against the potential defendants. Skypan is the first example of this and the third instance is the Connecticut gun drone kid which is being fought out currently. The FAA might be switching up tactics to file a subpoena first and then use the evidence gathered as grounds for more violations. If they don’t “get” you on the civil penalty, they will at least get you to spend time and money on an attorney fighting the subpoena.

151 days is the average from the date of the first violation to a notice from the FAA. 

Note: Adam Rupeka’s says “0” because the scan of the document was so bad I could not determine the letter date.

Phantoms were the most used aircraft.  Yes, you guessed it. The majority of the aircraft involved in these enforcement actions were Phantoms. I just lumped them all into one category as opposed to breaking down into different models of the Phantom. The Phantom is starting to be like the AK-47 of the drone world.

Many of the flights occurred in Class B Airspace. Class B airports tend to be in major cities. The radius for Class B airspace extends 5 nautical miles out (10 NM diameter) and in some instances even more. Here is a graph of all the types of airspace that the defendants flew in. Notice that a defendant can fly in different types of airspace for one flight.

The FAA enforcements appear to be spread out chronologically but not geographically. Some of the notices appear to have been filed around the same date. Maybe the prosecutor “batched” them on the side of their desk.

4 of the flights were commercial.  The FAA is not targeting only recreational flyers but also commercial.

5 of the notices or orders mentioned the loss of line of sight in the facts justifying a violation of the prohibition on careless and reckless flying. This is an important distinction because Section 336(b) is the FAA’s good old fallback position in enforcements. FPV racers take note. The FAA explained its view in the 2014 Model Aircraft Interpretation and said that FPV racing is not compliant with Section 336’s definition of model aircraft requiring line of sight and therefore would not be protected.

9 of the cases also had some type of arrest or fine under state or local law for the flight. You can be prosecuted under state/local law as well as federal law at the same time for the same flight. Also, keep in mind that a 333/COA is helpful for getting local law enforcement off your back as they are generally trying to find operators who do not have 333s. A good example of this is with the City of LA’s ordinance. Law enforcement officers were going around asking people if they had a 333 or not. If you didn’t have one, you could be arrested.

The FAA did NOT charge the defendants with all the regulations that were possible. I went through the facts and noticed a lot of regulation violations. Each flight should have been a $5,500 fine at a minimum. Why? With a typical drone operator, at least 5 regulations are usually being violated in each flight. If the operator switched out batteries, that would be a 2x multiplier because they are violating each of those 5 a second time on the second flight. A two battery job could compile a fine of around $11,000 if a prosecutor really wanted to go after you. It appears that the FAA’s prosecutors were either disorganized as to how to fully prosecute these cases or they were too embarrassed to “throw the book” at the drone operator. As time goes on, I believe the prosecutors will get better at their game and there will be more and more pressure to vigorously prosecute violators. I asked my friend Craig Thompson, a Dallas Aerial Photographer, what he thought of this data and he said, “Given that more than a million drones have been sold in the U.S., the fact that only two dozen fines have been levied is surprising and likely reflects the FAA’s lack of resources, rather than a lack of desire.” I think his statement is correct. As time goes on, we can expect to see many more of these enforcement actions to be more fully prosecuted.

Potential Benefits to the Drone Community.  The FAA’s lack of enforcement has been the catalyst for many states, counties, cities, and towns enacting some laws governing drones. The release of this information can have a positive effect by
showing that the FAA IS doing something. I would suggest giving this article out to any of your elected officials who plan on doing something regarding regulating drones. Tell them to give the FAA time to get “up to speed” on the situation before they pass any laws that will stifle this industry.

Brief Summary of the Lawsuit:

April 2018, the Electronic Privacy Information Center (EPIC) sued:

• Federal Aviation Aministration
• Drone Advisory Committee
• RTCA
• Department of Transportation

in the United States District Court for the District of Columbia with counts alleging:

1. Violation of the FACA: Failure to Open Meetings to the Public
2. Violation of the APA: Agency Action Unlawfully Withheld
3. Violation of the APA: Unlawful Agency Action
4. Violation of the FACA: Failure to Make Records Available for Public Inspection
5. Violation of the APA: Agency Action Unlawfully Withheld
6. Violation of the APA: Unlawful Agency Action
7. Claim for Declaratory Relief Under 28 U.S.C. § 2201(a)

EPIC alleges, “Although the DAC has been regularly meeting and advising the FAA since September 2016, it has conducted much of its work in secret and released only a small number of committee records.” They are suing to obtain records not released and also to open the DAC’s sub-committees to public access.

EPIC has sued the FAA/DOT at least 3 other times over issues surrounding drones according to my drone lawsuit/litigation database. EPIC currently has another case pending  before the D.C. Circuit Court of Appeals which has consolidated with the 4th Taylor v. FAA case.

Actual Text of EPIC’s Complaint:

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ELECTRONIC PRIVACY INFORMATION CENTER

v.
DRONE ADVISORY COMMITTEE;

FEDERAL AVIATION ADMINISTRATION; DANIEL K. ELWELL, in his official capacity as Acting Administrator of the Federal Aviation Administration and Designated Federal Officer of the Drone Advisory Committee and RTCA Advisory Committee;

RTCA ADVISORY COMMITTEE;

UNITED STATES DEPARTMENT OF TRANSPORTATION; DAVID W. FREEMAN, in his official capacity as Committee Management Officer of the Department of Transportation;

Civ. Action No. 18-833

COMPLAINT FOR INJUNCTIVE RELIEF
1. This is an action under the Federal Advisory Committee Act (“FACA”), 5 U.S.C. app. 2; the Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551–706; and the Declaratory Judgment Act, 28 U.S.C. § 2201(a), for injunctive and other appropriate relief to compel the Drone Advisory Committee (“DAC” or “Committee”) to comply with its transparency obligations.

2. Plaintiff Electronic Privacy Information Center (“EPIC”) specifically challenges (a) Defendants’ failure to make advisory committee meetings “open to the public,” as required by 5 U.S.C. app. 2 § 10(a)(1); and (b) Defendants’ failure to make “available for public inspection and copying” the “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents” of the DAC, as required by 5 U.S.C. app. 2 § 10(b).

3. Access to these nonpublic meetings and records would reveal how, if at all, the Drone Advisory Committee has addressed the threat that the deployment of Unmanned Aerial Vehicles (“UAVs” or “aerial drones” or simply “drones”) would pose to the privacy rights of persons in the United States.

Jurisdiction and Venue
4. This Court has subject matter jurisdiction over this action pursuant to 28 U.S.C. § 1331, 5 U.S.C. § 702, and 5 U.S.C. § 704. This Court has personal jurisdiction over Defendants.

5. Venue is proper in this district under 5 U.S.C. § 703 and 28 U.S.C. § 1391. Parties

6. Plaintiff EPIC is a nonprofit organization, incorporated in Washington, D.C., established in 1994 to focus public attention on emerging privacy and civil liberties issues. Central to EPIC’s mission is oversight and analysis of government activities that impact individual privacy. EPIC is a membership organization. The Members of EPIC’s Advisory Board include distinguished experts in law, technology, and public policy.

7. EPIC is the leading organization in the United States addressing the privacy issues that arise from the deployment of drones in the National Airspace System (“NAS”). As early as 2005, EPIC warned the public and policymakers about the adverse impact that drone surveillance would have on individual privacy.1

8. EPIC filed a petition with the FAA in 2012—joined by over 100 organizations, experts, and members of the public—demanding that the agency issue privacy regulations to safeguard the interests of the American public.2 EPIC has also twice brought suit against the FAA to enforce the agency’s obligation to establish privacy protections against drone surveillance. EPIC first sued the FAA when the agency denied EPIC’s 2012 petition and failed to address privacy issues in its first drone rulemaking. EPIC v. FAA, 821 F.3d 39 (D.C. Cir. 2016). EPIC subsequently filed suit to challenge the FAA’s final rule on small drones, a case which is currently pending before the U.S. Court of Appeals for the D.C. Circuit. EPIC v. FAA, No. 16- 1297 (D.C. Cir. argued Jan. 25, 2018).

9. EPIC recently filed a Freedom of Information Act (“FOIA”) suit against the Department of Homeland Security to obtain the agency’s drone policies, reports, and procedures. EPIC v. DHS, No. 18-545 (D.D.C. filed Mar. 8, 2018). In 2016, EPIC obtained key documents through a FOIA request concerning the work of the FAA’s Drone Registration Task Force. And in 2015, an EPIC FOIA case identified significant privacy and maintenance problems with the Department of Defense JLENS program, in which the Department conducted domestic surveillance using blimp-mounted radar and video equipment. EPIC v. Dep’t of the Army, No.  14–776 (D.D.C. filed May 6, 2014). After a JLENS surveillance blimp broke free, downed multiple power lines, and crash-landed in Pennsylvania, the program was eventually cancelled.

10. EPIC maintains one of the most popular privacy websites in the world, https://epic.org, which provides EPIC’s members and the public with access to current information about emerging privacy and civil liberties issues. EPIC’s website includes extensive information about the privacy risks arising from drone surveillance. EPIC frequently posts documents obtained under the FOIA and other open government statutes in order to educate the public about the privacy implications of government programs and activities.

11. Defendant Drone Advisory Committee (“DAC”) is an advisory committee of the United States government within the meaning of 5 U.S.C. app. 2 § 3(2). Ex. 1 at 3.5 The DAC was established and is utilized by the Federal Aviation Administration (“FAA”) and the United States Department of Transportation (“DOT”). The DAC includes a Drone Advisory Subcommittee (“DACSC” or “Subcommittee”) and at least three task groups: Task Group 1, Task Group 2, and Task Group 3 (collectively, “DAC Task Groups” or “Task Groups”). The DAC, the DACSC, and the DAC Task Groups are all under and part of the RTCA Advisory Committee (“RTCA”).

12. Defendant RTCA Advisory Committee is an advisory committee of the United States government within the meaning of 5 U.S.C. app. 2 § 3(2). The RTCA is utilized—and was established as a federal advisory committee—by both the FAA and the DOT. The RTCA is also an umbrella organization comprising at least 26 constituent advisory committees, including the DAC.

13. Defendant Federal Aviation Administration is an agency within the meaning of 5 U.S.C. § 701, 5 U.S.C. § 551, and 5 U.S.C. app. 2 § 3(3). The FAA is also a sub-agency of the DOT.

14. Defendant Daniel K. Elwell is the Acting Administrator of the FAA. Mr. Elwell is also the Designated Federal Officer (“DFO”) of the DAC and the RTCA within the meaning of 5 U.S.C. app. 2 § 10(e)–(f).

15. Defendant United States Department of Transportation is an agency within the meaning of 5 U.S.C. § 701, 5 U.S.C. § 551, and 5 U.S.C. app. 2 § 3(3).

16. Defendant David W. Freeman is the Committee Management Officer (“CMO”) of the DOT within the meaning of 5 U.S.C. app. 2 § 8(b). Mr. Freeman is responsible for controlling and supervising the DAC, the RTCA, and the DFO of both committees (currently Mr. Elwell). Id.

Facts

The Growing Privacy Risks Posed by Drones

17. The integration of drones into the National Airspace System will adversely affect millions of Americans. Reports of drones threatening the safety of aircraft, civilians, first responders, and law enforcement officers—as well as reports of surveillance by drones on private property and “drone stalking”—are increasing.

18. Many operators enable their drones to surreptitiously observe, record, or otherwise collect information from individuals without their knowledge or consent, even through walls or from thousands of feet in the air.

19. Drones are routinely equipped with high definition cameras that greatly increase the capacity for domestic surveillance.9 Drones can also gather sensitive, personal information using infrared cameras, heat sensors, GPS, automated license plate readers, facial recognition devices, and other sensors.10 Drones are even “capable of locking-on to an individual and following them while shooting video and avoiding obstacles,” including in “a dense forest or urban environments like a warehouse.”

20. Drone use and drone sales are rapidly growing. U.S. drone sales more than doubled between 2016 and 2017,12 and commercial drones are representing an ever-larger share of the worldwide drone market.13 Meanwhile, President Trump has taken steps to effect a “quick and dramatic expansion of drone use” in the NAS.14 Unwelcome Visit, N.Y. Times (Jan. 27, 2016), https://www.nytimes.com/2016/01/28/style/ neighbors-drones-invade-privacy.html.

21. Despite these alarming trends, the FAA has refused to promulgate generally applicable regulations to address the privacy risks posed by drones—even ignoring a Congressional command to do so in the FAA Modernization and Reform Act of 2012.

22. The Drone Advisory Committee, which directly advises the FAA on drone deployment, has the obligation to present to the FAA proposals and recommendations to address widespread and obvious public concerns about the impending risks of drone surveillance in the United States.

23. Yet there is no evidence that the DAC has fulfilled its essential responsibility to assess these risks to the public interest. References to privacy are extremely sparse in the few public DAC records, while the vast majority of DAC records and subcommittee meetings remain closed to the public in violation of the FACA.

The Formation and Structure of the DAC

24. On May 4, 2016, then-FAA Administrator Michael Huerta stated that the FAA was “establishing” the DAC, which he described as “a broad-based advisory committee that will provide advice on key unmanned aircraft integration issues.” Ex 2.16

25. The DAC was in fact “established” by the FAA on or before August 31, 2016. Ex. 3.17 The DAC was “formed under the RTCA federal advisory committee.” Id.

26. The chairman and the original members of the DAC were appointed by the FAA on or before August 31, 2016. Id. The Committee held its first public meeting on September 16, 2016, in Washington, D.C. Ex. 4.18

27. As of March 2018, the DAC was comprised of thirty-two members. Ex. 14.19 Eighteen Committee members are affiliated with corporations or organizations engaged in the design, manufacture, operation, or management of drones. Id. Nine members are affiliated with traditional aircraft operators, airport authorities, or associations of aviation professionals. Id. Two members are university-affiliated researchers, and three members are public officials (only one of whom is elected). Id. No privacy, consumer safety, or other general public interest groups are represented on the DAC.

28. The DAC Terms of Reference—which the FAA “issued,” Ex. 10 at 420—charge the DAC with providing an “open venue” for Committee members to “identify and recommend a single, consensus-based set of resolutions for issues regarding the efficiency and safety of integrating UAS [unmanned aircraft systems] into the NAS and to develop recommendations to address those issues and challenges.” Ex. 1 at 2.

29. According to the FAA, DAC members are to “discuss key issues and challenges associated with integrating unmanned aircraft in the world’s busiest and most complicated airspace system.” Ex. 2. However, the Committee is to “conduct more detailed business through a subcommittee and various task groups that will help the FAA prioritize its activities, including the development of future regulations and policies.” Id.

30. The DAC Subcommittee was established at some point between the first full DAC meeting (September 16, 2016), Ex. 4, and the second full DAC meeting (January 31, 2017), Ex. 5.21 The date of the Subcommittee’s first meeting, as with nearly all DACSC proceedings, was not announced and is not publicly known.

31. The DACSC Terms of Reference—which the FAA “issued,” Ex. 10 at 4—state that the Subcommittee’s role is to “support” the DAC, to “present findings to DAC,” and to “[f]orward recommendations and other deliverables to DAC for consideration.” Ex. 6 at 1, 3.22 However, contrary to the DACSC Terms of Reference, FAA officials have repeatedly circumvented the full DAC and worked directly with the Subcommittee.

32. For example, FAA officials have “brief[ed]” and “educat[ed]” the DACSC, Ex. 10 at 8; provided “guidance and assistance to the DAC Subcommittee,” Ex. 11 at 2;23 and personally participated in multiple DAC meetings at which the Subcommittee delivered reports on its work. See, e.g., Ex. 5 at 2–3; Ex. 10 at 3–4, 8; Ex. 12 at 2, 7.24

33. Moreover, the DAC’s Designated Federal Officer—previously Acting FAA Deputy Administrator Victoria B. Wassmer, now Acting Administrator Elwell—is required by both the RTCA Charter and the FACA to be intimately involved in the proceedings of the DACSC. The “DFO or alternate” must “[c]all, attend, and adjourn all the committee/ subcommittee meetings”; “[a]pprove all committee/subcommittee agendas”; and “[c]hair meetings when directed to do so by the FAA Administrator.” Ex. 13 at 2–3;25 see also 5 U.S.C. app. 2 § 10(e)–(f).

34. The DAC also includes at least three “FAA-approved Task Groups,” each of which must “have a specific, limited charter” that is “approved by the FAA Administrator.” Ex. 1 at 2. According to the FAA, the agency’s “traditional way of providing tasking” to Task Groups is to “finalize and approve the tasking statement and forward it to the [Committee] to execute.” Ex. 5 at 10.

35. Task Group 1 was established at some point between the first full DAC meeting (September 16, 2016), Ex. 4, and the second full DAC meeting (January 31, 2017), Ex. 5. The FAA instructed Task Group 1 to “[d]evelop a set of consensus based recommendations” concerning “the roles and responsibilities of federal, state, and local governments in regulating and enforcing drone laws.” Ex. 7 at 7.26

36. Task Group 2 was also established at some point between the first full DAC meeting (September 16, 2016), Ex. 4, and the second full DAC meeting (January 31, 2017), Ex. 5. The FAA instructed Task Group 2 to “provide recommendations on UAS operations/missions beyond those currently permitted” and “define procedures for industry to gain access to the airspace.” Ex. 8 at 1.27

37. Task Group 3 was established sometime between the second full DAC meeting (January 31, 2017), Ex. 5, and the third full DAC meeting (May 3, 2017), Ex. 10. The FAA instructed Task Group 3 to “develop recommendations as to the UAS community’s preferred method(s) for 26 Tasking Statement from Victoria B. Wassmer, Acting Deputy Adm’r, FAA, to DAC Task Group 1 (Jan. 31, 2017).

38. The DACSC Terms of Reference nominally require the Task Groups to perform their work “at the direction of the DACSC,” Ex. 6 at 3, rather than at the direction of FAA officials. In October 2017, Mr. Elwell, then the FAA Deputy Administrator, explained to the Washington Post: “If we [the FAA] meddle, if we get in there, they’re not advising us.” Ex. 20.29 Nevertheless, FAA officials have personally directed, guided, participated in, and received the work and recommendations of the Task Groups.

39. For example, in early 2017, Acting Deputy Administrator Wassmer “issued” the detailed tasking statements for all three Task Groups. Ex. 10 at 4. The tasking statements included factfinding assignments for each Task Group, topics that each Task Group should advise on, and deadlines by which each Task Group should deliver its recommendations and reports. See Ex. 7; Ex. 8; Ex. 9. As Wassmer made clear to the DAC, “tasking statements from the FAA should guide the work of the DAC, DACSC, and TGs.” Ex. 10 at 4.

40. Wassmer and Acting Administrator Elwell also personally attended DAC meetings at which the Task Groups delivered substantive recommendations and reports. See, e.g., Ex. 10 at 2, 9–17; Ex. 11 at 1, 3–9; Ex. 12 at 2, 8–18.

41. And because the Task Groups constitute subcommittees of the DAC, Wassmer and Elwell were (or are) required to be intimately involved in the proceedings of the Task Groups in their capacity as Designated Federal Officer. Under the RTCA Charter, the “DFO or alternate” must “[c]all, attend, and adjourn all the committee/ subcommittee meetings”; “[a]pprove all committee/subcommittee agendas”; and “[c]hair meetings when directed to do so by the FAA Administrator.” Ex. 13 at 2–3; see also 5 U.S.C. app. 2 § 10(e)–(f).

The Transparency Obligations of the DAC

42. The DAC, according its Terms of Reference, must conduct its work in the “open, transparent venue of a federal advisory committee (FAC). As with all FACs, the Drone Advisory Committee (DAC) will be designed to: ensure transparency, include broad and balanced representation across the industry, encourage innovation and remain consistent with US anti-trust laws.” Ex. 1 at 1.

43. Under the FACA, the meetings of each advisory committee—defined as any “committee, board, commission, council, conference, panel, task force, or other similar group, or any subcommittee or other subgroup thereof” which is “established or utilized” by an agency—“shall be open to the public.” 5 U.S.C. app. 2 §§ 3(2), 10(a)(1).

44. The Charter of the RTCA—of which the DAC, the DACSC, and the DAC Task Groups are all part—confirms that “RTCA Advisory Committee and subcommittee meetings will be
open to the public, except as provided by section 10(d) of the FACA and applicable regulations. Meetings will be announced in the Federal Register at least 15 days before each meeting, except in emergencies.” Ex. 13 at 3.

45. The DAC Terms of Reference further underscore that “The DAC functions as a Federal advisory committee with meetings that are open to the public, unless otherwise noted as authorized by section 10(d) of the FACA and applicable regulations . . . .” Ex. 1 at 3.

46. Under the FACA, “the records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by each advisory committee shall be available for public inspection and copying at a single location in the offices of the advisory committee or the agency to which the advisory committee reports until the advisory committee ceases to exist.” 5 U.S.C. app. 2 § 10(b).

47. The RTCA Charter confirms that “[s]ubject to the Freedom of Information Act, 5 U.S.C. § 552, records, reports, transcripts, minutes, or meeting summaries, and other materials presented to or prepared for the RTCA Advisory Committee are available for public inspection.” Ex. 13 at 4.

48. The DAC Terms of Reference state that “[i]n accordance with the Federal Advisory Committee Act, meeting summaries and related information will be available to the public via RTCA’s website. Documents undergoing final review can be obtained by contacting RTCA.” Ex. 1 at 6.

49. The RTCA Charter also states that the “records of the committee, formally and informally established subcommittees, or other work or task subgroup of the subcommittee, shall be handled in accordance with the General Records Schedule 6.2, or other approved agency records disposition schedule.” Id.

50. General Records Schedule 6.2 “covers Federal records created or received by Federal advisory committees and their subgroups pursuant to the Federal Advisory Committee Act (FACA) of 1972 (5 U.S.C., Appendix, as amended) and records related to the management of these committees by their sponsoring agencies or departments.” Nat’l Archives & Records Admin., General Records Schedule 6.2: Federal Advisory Committee Records 130 (Sep. 2016), Ex. 15.

51. General Records Schedule 6.2 requires the “[p]ermanent” preservation of “records related to the establishment of the committee”; “records related to committee membership”; “records of committee meetings and hearings”; “records related to committee findings and recommendations”; “records created by committee members,” including “correspondence documenting discussions, decisions, or actions related to the work of the committee”; “records related to research collected or created by the committee”; “documentation of advisory committee subcommittees”; “records that document the activities of subcommittees that support their reports and recommendations to the chartered or parent committee.” Id. at 130–32.

52. The General Services Administration, which is “responsible for all matters relating to advisory committees,” and “prescribe[s] administrative guidelines and management controls applicable to advisory committees,” 5 U.S.C. app. 2 § 7, instructs that: “Whether subcommittees are open to the public or not, the agency must . . . [c]omply with recordkeeping requirements (i.e., minutes)” and “[a]llow public access to subcommittee records.” Federal Advisory Committee Act Training Course 192 (2017), Ex 16.

53. FACA regulations also dictate that a committee or agency “may not require members of the public or other interested parties to file requests for non-exempt advisory committee records under the request and review process established by section 552(a)(3) of FOIA.” 41 C.F.R. § 102-3.170.

The Activities of the DAC and DAC Subcomponents

54. On September 16, 2016, the DAC held its first full Committee meeting in Washington, D.C. Ex. 4. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.

55. DAC Secretary Al Secen presented the results of a survey of DAC members at the September 2016 meeting. DAC members identified privacy as the second-highest public concern around drones, narrowly trailing safety and reliability:

56. Yet in the same survey, DAC members ranked privacy dead last among their regulatory and policy concerns:

57. During the September 2016 meeting, the DAC identified as an action item: “Establish a WG to describe the privacy concerns, and to identify the respective roles and responsibilities for dealing with privacy concerns across local, state, regional and federal entities.” However, there is no public record of the DAC ever forming a working group focused on privacy.

58. During the same meeting, the DAC also identified “[e]stablishing a standing DAC Subcommittee,” “[e]stablish[ing] a task group” as action items. Ex. 4 at 2.

59. Between the DAC’s September 2016 and January 2017 meetings, the DACSC, Task Group 1, and Task Group 2 were formed and began engaging in official Committee business. See Ex. 5 at 2–7.

60. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any such meetings.

61. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its January 2017 meeting.

62. On January 31, 2017, the DAC held its second full Committee meeting in Reno, Nevada. Ex. 5. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.

63. The DACSC, Task Group 1, and Task Group 2 each delivered a progress report to the DAC at the January 2017 meeting. Id. at 2–7. Task Group 1 and Task Group 2 discussed their substantive recommendations to the FAA. Id. at 3–7. The DAC also “approved the DACSC to go through the process of creating TG3 [Task Group 3]” based on the tasking statement issued by the FAA. Id. at 10.

64. According to the publicly available records of the January 2017 meeting, the privacy implications of drones were referenced only once in passing.

65. Between the DAC’s January 2017 and May 2017 meetings, the DACSC, Task Group 1, and Task Group 2 continued engaging in official Committee business. See Ex. 10 at 8–14. Task Group 3 was also formed during this period and began engaging in official Committee business. See id. at 14–16.

66. Although members of the DACSC and the Task Groups met and conferred during this period, see Ex. 10 at 8–16, Defendants failed to publicly notice or announce any such meetings.

67. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its May 2017 meeting.

68. On May 3, 2017, the DAC held its third full Committee meeting in Herndon, Virginia. Ex. 10. Acting Deputy Administrator Wassmer, then the Committee’s DFO, attended the meeting and delivered remarks. Id. at 1.

69. The DACSC and each of the Task Groups delivered a progress report to the DAC at the May 2017 meeting. Id. at 8–16. Task Group 1 and Task Group 2 discussed their substantive recommendations to the FAA. Id. at 8–14.

70. According to the publicly available records of the May 2017 meeting, the privacy implications of drones were referenced only twice in passing.

71. Between the DAC’s May 2017 and July 2017 meetings, the DACSC and the Task Groups continued engaging in official Committee business. See Ex. 11 at 3–9.

72. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any such meetings.

73. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its July 2017 meeting.

74. On July 21, 2017, the DAC held its fourth full Committee meeting via digital conference. Ex. 11. Mr. Elwell, then the FAA Deputy Administrator, attended the meeting as the Committee’s newly appointed DFO. Id. at 2. Elwell also delivered remarks during the meeting. Id. at 2–3.

75. Task Group 1 and Task Group 3 both delivered a progress report and recommendations to the DAC at the July 2017 meeting. Id. at 3–9. Task Group 3 also presented an interim report intended for the FAA concerning funding mechanisms for the introduction of drones into the NAS. Id. at 3–7.

76. San Francisco Mayor Ed Lee, who served on the DAC until his death in December 2017, sent a representative to the July 2017 meeting to speak on his behalf. The representative told the DAC that Mayor Lee “remained concerned about privacy and ensuring broader input in the[DAC] discussion from partners such as law enforcement agencies and other local government representatives. The desire is to have an equal, one-to-one representation of local government to industry members.”

77. According to the publicly available records of the July 2017 meeting, Mayor Lee’s statement was the sole reference made by the DAC to the privacy implications of drones.

78. During the July 2017 meeting, the DAC approved the interim funding report presented by Task Group 3. The RTCA officially delivered the Task Group 3 report to then-Deputy Administrator Elwell on September 11, 2017. Ex. 17.30 The RTCA Advisory Committee does not appear to have collectively reviewed or approved the Task Group 3 report before transmitting it to the FAA.

79. Between the DAC’s July 2017 and November 2017 meetings, the DACSC and the Task Groups continued engaging in official Committee business. See Ex. 12 at 8–18.

80. Although members of the DACSC and the Task Groups met and conferred during this period, see id., Defendants failed to publicly notice or announce any meetings.

81. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection, apart from limited information presented to the DAC at its November 2017 meeting.

82. On October 23, 2017, the Washington Post published a report that Task Group 1—a group that includes “industry insiders with a financial stake in the outcome” of the Committee process—“has been holding confidential meetings to shape U.S. policy on drones, deliberating privately about who should regulate a burgeoning industry that will affect everything from package delivery to personal privacy.” Ex. 21.31

83. The Washington Post also reported that the Task Group 1 process had “been riven by suspicion and dysfunction” and that “[m]onths of tensions came to a head” when “an FAA contractor that manages the group told members they had to sign a far-reaching confidentiality agreement to keep participating. After some raised concerns, several groups were blocked from
30 Letter from Margaret Jenny, President, RTCA, to Daniel K. Elwell, Deputy Adm’r, FAA (Sep. 11, 2017).

84. On November 8, 2017, Mayor Ed Lee sent a letter to DAC Chairman Brian Krzanich warning that “Task Group 1’s process has been marred by a lack of transparency and poor management,” including “lack of agendas, last minute rescheduling of meetings, failure to have minutes of any proceedings, conflicting advice and guidance by RTCA and Requirements to sign documents that public employees cannot sign.” Ex. 19 at 1. Mayor Lee added: “Additionally, there is a stark imbalance of perspectives and viewpoints favoring industry interests at the expense of local and state governments and members of the public. Because the process was flawed, the recommendations produced by that process are also flawed.” Id.

85. On the same day—November 8, 2017—the DAC held its fifth full Committee meeting at the Amazon Meeting Center in Seattle, Washington. Ex. 12. Mr. Elwell, then the FAA Deputy Administrator, attended the meeting and delivered remarks. Id. at 2–6.

86. The DACSC and each of the Task Groups delivered a progress report to the DAC at the November 2017 meeting. Id. at 7–18. Each Task Group discussed its substantive recommendations to the FAA. Id. at 8–14.

87. Task Group 2 also presented a final report intended for the FAA concerning drone access to airspace. Id. at 12–16. The DAC approved the report. Id. at 16.

88. According to the publicly available records of the November 2017 meeting, the privacy implications of drones were referenced only four times: once in a question posed to Task Group 2 and three times in a presentation about local government views on drone deployment.

89. On information and belief, the DACSC and the DAC Task Groups have continued to meet, confer, and engage in official Committee business since the November 2017 meeting.

90. Defendants have failed to publicly notice or announce any meetings of the DACSC or the DAC Task Groups from this period.

91. Defendants have also failed to make any DACSC or Task Group records from this period available for public inspection.

92. On March 9, 2018, the DAC held its sixth full Committee meeting in McLean, Virginia. Sixth Drone Advisory Committee (DAC) Meeting, 83 Fed. Reg. 7,284, 7,284 (Feb. 20, 2018).

93. To date, Defendants have failed to release minutes from the March 2018 meeting. However, Acting Administrator Elwell was scheduled to attend and speak at the meeting as the Committee’s DFO. Id.

94. The DAC’s next full Committee meeting is scheduled for July 17, 2018. Drone Advisory Committee (DAC), RTCA (2018).32

EPIC’s Attempts to Obtain DAC Records

95. On March 20, 2018, EPIC sent a records request via email to Acting FAA Administrator Elwell, DOT Committee Management Officer David W. Freeman, DAC Secretary Al Secen, and the RTCA’s general information email address. Ex. 18.

96. In its request, EPIC stated that it wished to access “all ‘records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by’ the DAC or any DAC subcomponent. 5 U.S.C. App. 2 § 10(b).” Id.

97. EPIC asked the agency and Committee recipients to “direct EPIC to the URL or location where the full collection of DAC and DAC subcomponent records is available for public inspection and copying.” Id.

98. EPIC also advised the FAA, DAC, and RTCA of its records disclosure obligations under the FACA. Id.

99. As of April 11, 2018, EPIC has received no response to its request.

100. On April 6, 2018, EPIC Counsel John Davisson called and left a voicemail message for DAC Secretary Al Secen. Mr. Davisson reiterated EPIC’s desire to obtain access to DAC records and left a return number for Mr. Secen to call.

101. As of April 11, 2018, EPIC has received no response to this message.

Count I
Violation of the FACA: Failure to Open Meetings to the Public

102. Plaintiff asserts and incorporates by reference paragraphs 1–101.

103. Defendants have failed to open meetings of the DACSC and DAC Task Groups to the public.

104. Defendants’ failure to open DACSC and DAC Task Group meetings to the public is a violation of 5 U.S.C. app. 2 § 10(a)(1).

105. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. app. 2 § 10(a)(1). By failing to open DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

106. Plaintiff has exhausted all applicable administrative remedies.

Count II
Violation of the APA: Agency Action Unlawfully Withheld

107. Plaintiff asserts and incorporates by reference paragraphs 1–101.

108. Defendants have failed to open meetings of the DACSC and DAC Task Groups to the public, as required by 5 U.S.C. app. 2 § 10(a)(1).

109. Defendants’ failure to make these meetings open to the public constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. § 706(1).

110. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. § 706(1). By failing to open DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

111. Plaintiff has exhausted all applicable administrative remedies.

Count III
Violation of the APA: Unlawful Agency Action

112. Plaintiff asserts and incorporates by reference paragraphs 1–101.

113. Defendants have held numerous nonpublic meetings of the DACSC and DAC Task Groups in violation of 5 U.S.C. app. 2 § 10(a)(1).

114. By holding nonpublic meetings, Defendants have engaged in conduct that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(a) and short of statutory right under 5 U.S.C. § 706(2)(c).

115. Defendants’ conduct constitutes final agency action under 5 U.S.C. § 704.

116. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ actions. By holding nonpublic DACSC and DAC Task Group meetings, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

117. Plaintiff has exhausted all applicable administrative remedies.

Count IV
Violation of the FACA: Failure to Make Records Available for Public Inspection

118. Plaintiff asserts and incorporates by reference paragraphs 1–101.

119. Defendants have failed to make “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).

120. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.

121. Defendants’ failure to make these records available for inspection and copying is a violation of 5 U.S.C. app. 2 § 10(b).

122. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. app. 2 § 10(b). By failing to make numerous DAC records available for public inspection, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

123. Plaintiff has exhausted all applicable administrative remedies.

Count V
Violation of the APA: Agency Action Unlawfully Withheld

124. Plaintiff asserts and incorporates by reference paragraphs 1–101.

125. Defendants have failed to make “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).

126. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.

127. Defendants’ failure to make these records available to Plaintiff constitutes agency action unlawfully withheld or unreasonably delayed in violation of 5 U.S.C. § 706(1).

128. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ violation of 5 U.S.C. § 706(1). By failing to make numerous DAC records available for public inspection, Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

129. Plaintiff has exhausted all applicable administrative remedies.

Count VI
Violation of the APA: Unlawful Agency Action

130. Plaintiff asserts and incorporates by reference paragraphs 1–101.

131. Since September of 2016, Defendants have held multiple meetings of the DAC, the DACSC, and the DAC Task Groups; engaged in substantive deliberations within and between the DAC, the DACSC, and the DAC Task Groups; issued official recommendations, reports, findings, and conclusions on behalf of the DAC, the DACSC, and the DAC Task Groups; assigned “action items” on behalf of the DAC to the FAA, the RTCA Advisory Committee, the DACSC, and the DAC Task Groups; and undertaken other official DAC business.

132. Defendants have engaged in this conduct without making “available for public inspection and copying” numerous “records, reports, transcripts, minutes, appendixes, working papers, drafts, studies, agenda, or other documents which were made available to or prepared for or by” the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups. 5 U.S.C. app. 2 § 10(b).

133. Plaintiff sought to inspect and copy these records, but Defendants did not make them available to Plaintiff.

134. By undertaking official Committee business without publicly disclosing records covered by U.S.C. app. 2 § 10(b), Defendants have engaged in conduct that is arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law under 5 U.S.C. § 706(2)(a) and short of statutory right under 5 U.S.C. § 706(2)(c).

135. Defendants’ conduct constitutes final agency action under 5 U.S.C. § 704.

136. Plaintiff is adversely affected, aggrieved, and injured in fact by Defendants’ actions. By undertaking official Committee business without publicly disclosing numerous records covered by U.S.C. app. 2 § 10(b), Defendants have frustrated Plaintiff’s longstanding mission to educate the public about the privacy implications of drone deployment and about the federal government’s efforts (or lack thereof) to protect the public from drone surveillance.

137. Plaintiff has exhausted all applicable administrative remedies.

Count VII
Claim for Declaratory Relief Under 28 U.S.C. § 2201(a)

138. Plaintiff asserts and incorporates by reference paragraphs 1–101.

139. Plaintiff is entitled under 28 U.S.C. § 2201(a) to a declaration of the rights and other legal relations of the parties with respect to the claims set forth in Counts I–VI.

Requested Relief

WHEREFORE, Plaintiff requests that this Court:

A. Order Defendants to preserve all records prepared for or by the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups;

B. Order Defendants to produce an index of all records prepared for or by the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups;

C. Order Defendants to make available for inspection and copying all records prepared for or by the DAC, including but not limited to records arising out of the DACSC and DAC Task Groups;

D. Order Defendants to notice and open to the public all future meetings of the DACSC, DAC Task Groups, and any other DAC subcomponent hereafter established;

E. Enjoin the DAC, DAC subcomponents, DAC officers, and DAC members from holding meetings; conducting deliberations; issuing recommendations, reports, findings, or conclusions; and engaging in other official DAC business until Defendants are in full compliance with 5 U.S.C. app. 2 § 10(a)(1) and § 10(b);

F. Hold unlawful and set aside any actions, findings, and conclusions of the DAC, the DACSC, and the DAC Task Groups which predate Defendants’ full compliance 5 U.S.C. app. 2 § 10(a)(1) and § 10(b);

G. Award EPIC costs and reasonable attorney’s fees incurred in this action; and

H. Grant such other relief as the Court may deem just and proper.

Respectfully Submitted,
MARC ROTENBERG, D.C. Bar #422825
EPIC President and Executive Director
/s/ Alan Butler
ALAN BUTLER, D.C. Bar #1012128
EPIC Senior Counsel
JOHN DAVISSON, D.C. Bar #153191433
EPIC Counsel
ELECTRONIC PRIVACY
INFORMATION CENTER
1718 Connecticut Avenue, N.W.
Suite 200
Washington, D.C. 20009
(202) 483-1140 (telephone)
(202) 483-1248 (facsimile)
Attorneys for Plaintiff EPIC
Dated: April 11, 2018

Quick Summary:

This is NOT John Taylor who was instrumental in having the drone registration regulations vacated in the Taylor v. Huerta case. This is Robert Taylor who is John Taylor’s brother.  Just to mention, I’m NOT involved in this case. This is a class action lawsuit (of at least 836,796 members) against the FAA.

Count I is alleging that the FAA collected personal information and money under the Part 48 registration regulations which were declared illegal under the Taylor v. Huerta case. Even after the Taylor v. Huerta ruling, the FAA continued to collect and retain all of the personal information and money. They did not delete the registry or refund the money. “The Privacy Act mandates that agencies that maintain a ‘system of records’ must ‘maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.'” 5 U.S.C. § 552a(e)(1).” The FAA maintained the personal information of the individuals when the FAA lacked statutory authority, made clear by the Taylor v. Huerta case, and thus violated the Privacy Act. Because the FAA acted intentionally or willfully, each injured party is entitled to $1,000 in statutory damages.

Count II of the lawsuit alleges that under the Little Tucker Act, the Federal Government’s sovereign immunity is waived when the government takes money from individuals in violation of a statute. This is the same thing being alleged in another class action against the FAA, Reichert v. FAA, regarding the FAA illegally taking the $5 during registration. They want everyone’s $5 back.

Count III alleges that the FAA “violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule without any statutory authority to do so. Further, once the D.C. Circuit vacated the Registration Rule, the Defendants did not delete the private and personal information of Model Aircraft owners and did not refund their registration fees. In addition, the Defendants unlawfully continued the registration process and unlawfully maintained Plaintiff and the Class’s private and personal information even after the D.C. Circuit held that the Defendants were prohibited from doing so.” Basically, the constitutional right was the right to judicial review in Article III of the Constitution and the FAA just ignored the D.C. Circuit’s ruling.

Count IV alleges unjust enrichment by collecting over 4 million in fees.

The lawsuit is seeking $5 back for the class ($4,183,980), Privacy Act violation statutory damages of $1,000 EACH for the members of the class ($ 836,796,000).

In sum, we’re looking at almost 841 million PLUS attorneys fees.

Interested in more drone lawsuits? Check out my Drone Lawsuits and Litigation Database.

Brief Background to the Lawsuit:

In 2012, the FAA Modernization and Reform Act of 2012 was passed which provided a Section 336 that protected a certain group of model aircraft from regulation from the FAA.  The FAA in 2015 created the Part 48 registration regulations which governed this protected class of model aircraft. John Taylor filed suit in the D.C. Circuit Court of Appeals. That court ruled that the FAA violated Section 336 and that the Part 48 registration regulations as applied to model aircraft were illegal.

During this period AFTER the registration regulations were declared illegal, the FAA did not delete the database of registered names or refund the money. The FAA instead created a difficult process, using paper and requiring more sensitive data, to facilitate deregistration and refunds. This process was not well publicized until I posted about it. John Taylor then filed another lawsuit in the Federal District Court of Maryland for Robert Taylor seeking injunctive relief based on, among others things, the Privacy Act. The FAA argued that Taylor could not get injunctive relief under the Privacy Act and that Taylor could not seek remedies for others – only himself. John Taylor dismissed the Maryland case and the class action suit was filed in Washington, D.C. by a D.C. law firm.

In December 2017, the National Defense Authorization Act of 2017 was passed which overturned the Taylor v. Huerta ruling putting the registration regulations back into effect.

This lawsuit was filed on January 5, 2018.

If you are in need of help with filing Part 107 waivers, please contact me.  I have helped over 70 clients obtain waiver approvals.

Actual Text of the Lawsuit:

Robert C. Taylor

vs.

Federal Aviation Administration

and

Michael Huerta

CLASS ACTION COMPLAINT
Plaintiff Robert C. Taylor, on behalf of himself and all others similarly situated, by counsel, Carr Maloney P.C., brings this Class Action against Defendants Federal Aviation Administration (“FAA”) and Michael P. Huerta, in his official capacity as Administrator of the FAA, and states as follows:

PARTIES
1. Plaintiff is a natural person and a citizen of the United States, residing in the state of Maryland.
2. Defendant FAA is part of the United States Department of Transportation and is located at 800 Independence Avenue SW, Washington D.C. 20591. Defendant Huerta serves as the Administrator of the FAA.

JURISDICTION AND VENUE
3. This Court has jurisdiction over this matter because it involves federal questions pursuant to 28 U.S.C. § 1331. This is also a civil action arising under the United States Constitution. Furthermore, this Court has subject matter jurisdiction over this action under 28 U.S.C. § 1332. Plaintiff brings this Complaint on behalf of a nationwide class, and at least one Class member is a citizen of a state different from Defendants. The Class consists of at least 836,796 Class members and the matter in controversy exceeds $5,000,000.
4. Venue is proper in this Court under 28 U.S.C. § 1391 because the FAA and Huerta are located in the District of Columbia, and the FAA regularly conducts business in this District. Moreover, a substantial part of the events asserted in this Complaint occurred and continues to occur in this District. Venue is also proper pursuant to 5 U.S.C.A. § 552a(g)(5).

FACTUAL ALLEGATIONS
5. In 2012, Congress passed the FAA Modernization and Reform Act of 2012, 126 Stat. 11. The Act provided that the FAA could not “promulgate any rule or regulation regarding model aircraft” that meet certain criteria described in the Act. Pub. L. 112-95, § 336(a).
6. Section 336(c) of the FAA Modernization and Reform Act of 2012 defines a “Model Aircraft” as an “Unmanned Aircraft” that is “(1) capable of sustained flight in the atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown for hobby or recreational purposes.”
7. On December 16, 2015, despite Congress’s explicit prohibition against rulemaking involving Model Aircraft, the FAA promulgated the Registration and Marking Requirements for Small Unmanned Aircraft (the “Registration Rule”). The Registration Rule required that beginning December 21, 2015, owners of Model Aircraft operated for hobby or recreational purposes must register with the FAA. 80 Fed. Reg. 78593.
8. As part of the registration under the Registration Rule, owners of Model Aircraft were required to provide the FAA with personal information including their names, email addresses, and home addresses. They also had to pay a $5.00 registration fee. Model Aircraft Owners who did not register were subject to three years in prison and fines of up to $250,000. 80 Fed. Reg. 78593, 78630.
https://www.gpo.gov/fdsys/pkg/FR-2015-12-16/pdf/2015-31750.pdf
9. In fact, the FAA threatened that failing to register would result in civil penalties up to $27,500 and criminal penalties up to $250,000 and three years in prison. https://web.archive.org/web/20151224033152/www.faa.gov/uas/registration/faqs Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 3 of 16
10. Plaintiff is a Model Aircraft hobbyist who owns multiple Model Aircraft and uses them for hobby or recreational purposes.
11. Following the effective date of the Registration Rule, Plaintiff registered his Model Aircraft with the FAA, provided the required personal information, and paid the $5.00 registration fee.
12. No less than 836,796 owners of Model Aircraft registered their Model Aircraft for hobby or recreational purposes from December 21, 2015 through November 14, 2017. http://dronecenter.bard.edu/drone-registrations.
13. On May 19, 2017, the United States Court of Appeals for the District of Columbia
Circuit (“D.C. Circuit”) vacated the Registration Rule “to the extent that it applies to Model Aircraft,” because the Registration Rule was among those actions specifically prohibited by § 336(a). Taylor v. Huerta, 856 F.3d 1089, 1090, 1094 (D.C. Cir. 2017). “The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition.” Id. at 1090. Thus, the registrations that were based upon the promulgation of the invalid and vacated Registration Rule, had no lawful existence.
14. Also on May 19, 2017, the FAA issued a press release stating that the FAA will “continue to encourage registration for all drone operators,” despite the D.C. Circuit’s decision vacating the Registration Rule and making clear that the FAA had no authority to promulgate the Registration Rule. https://www.faa.gov/news/press_releases/news_story.cfm?newsId=21674
15. Despite the judicial vacatur of the regulation establishing the FAA’s model aircraft registry, the FAA did not delete Plaintiff’s personal information from the registry or refund his $5.00 registration fee. Nor did the FAA delete the other registered owners of Model Aircrafts’ personal information or return their registration fees. Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 4 of 16
16. Though it did not voluntarily delete the now clearly-unlawful registry, the FAA ultimately did create a form whereby registrants could seek to delete their registrations and receive a refund. However, the FAA did not distribute the form to registrants through their email or physical addresses on file with the FAA, or take other reasonable steps to make registrants aware of the process. Further, the form, without lawful justification, required registrants to make certifications as to how they “always” operate their Model Aircraft, and to provide personal banking information. The form is no longer available on the FAA website.
17. On December 12, 2017, President Donald Trump signed the National Defense Authorization Act. Section 1092(d) of the National Defense Authorization Act states that “The rules adopted by the Administrator of the Federal Aviation Administration in the matter of registration and marking requirements for small unmanned aircraft (FAA-2015-7396; published on December 16, 2015) that were vacated by the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Huerta (No. 15-1495; decided on May 19, 2017) shall be restored to effect on the date of enactment of this Act.” Plaintiff and the Class do not concede that the National Defense Authorization Act is valid. The National Defense Authorization Act, by its terms, is not retroactive. Therefore, any personal information and registration fees collected from owners of Model Aircraft pursuant to the Registration Rule between December 21, 2015 and December 11, 2017, was, and remains, unlawful.
19. The FAA’s actions were willful or intentional. Section 336(a) clearly prohibited the promulgation of the Registration Rule. As the court noted, “[s]tatutory interpretation does not get much simpler.” Taylor, 856 F.3d at 1092. The FAA knew, or should have known, that its actions were unlawful, but proceeded to act in willful and flagrant violation of the rights of hundreds of thousands of Model Aircraft hobbyists. The FAA’s actions were so patently egregious and unlawful that anyone undertaking the conduct should have known it to be unlawful. The FAA’s actions were committed without grounds for believing them to be lawful, and in flagrant disregard of the rights of those whom it unlawfully registered. Nor did the FAA relent when the Registration Rule was challenged in court. Lastly, despite an order of the Court of Appeals vacating the Regulation Rule to the extent that it applied to Model Aircraft, the FAA did not refund their $5.00 registration fees and continued not only to maintain, but to build upon its unlawful registry, knowing it to be illegal. In addition, the FAA’s unlawful, and uncirculated, “deregistration” process further reveals the intentional and willful nature of the FAA’s efforts to maintain its unlawful registry.

CLASS ACTION ALLEGATIONS
20. Plaintiff brings this action individually and on behalf of all others similarly situated individuals pursuant to Rule 23 of the Federal Rules of Civil Procedure. The proposed class is as follows:
All owners of Model Aircraft who registered with the FAA for hobby or recreational purposes from December 21, 2015 through December 11, 2017.
21. The Class is so numerous that joinder of all individual plaintiffs would be impracticable. Plaintiff avers that the class consists of at least 836,796 Class members, the number of individuals who registered Model Aircraft for hobby or recreational purposes as of November 14, 2017. The precise number of Class members is known by the FAA and can be ascertained through its own records.
22. There are questions of law and fact common to the Class that predominate over any questions affecting only individual Class members. All members of the Class have been subject to and affected by the same course of unlawful conduct. In violation of § 336(a) of the FAA Modernization and Reform Act of 2012, the FAA unlawfully registered Class members,
and in doing so, the FAA unlawfully collected and maintained personal information about Class members and unlawfully collected the same registration fees.
23. Plaintiff’s claims are typical of the claims of the Class, in that they arise from the same operative facts and course of conduct, are based on the same legal theories, and based upon the FAA’s violation of § 336(a) of the Modernization and Reform Act of 2012. In violating § 336(a), the FAA unlawfully registered Class members, and in doing so, the FAA unlawfully collected and maintained personal information about Class members and unlawfully collected the Class members’ registration fees.
24. Plaintiff will fairly and adequately represent and protect the interests of the Class. Plaintiff is committed to vigorously litigating this matter. Plaintiff has no interest antagonistic to those of other Class members. Plaintiff has secured counsel experienced in handling class actions. Neither Plaintiff nor his counsel have any interests which might cause them not to vigorously pursue the claims in this lawsuit.25. A class action is superior to other available methods of the fair and efficient adjudication of this controversy under Rule 23(b)(3). The expense and burden of individual litigation would make it impracticable or impossible for Class members to prosecute their claims individually. The interest of Class members in individually controlling the prosecution of separate claims against the FAA is relatively small, and such complex individual litigation against the federal government, who has unlimited resources, would be cost prohibitive if the suits were prosecuted individually. Further, such numerous individual suits (perhaps a number approaching one million or more) would burden the court system. Management of the Class’s claims is likely to present significantly fewer difficulties and is in the best interest of the Class members, judicial economy, and the court system. Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 7 of 16
26. Class certification is also appropriate under Rule 23(b)(2) given that the FAA acted or refused to act on grounds that apply generally to the class, so that final injunctive relief or corresponding declaratory relief is appropriate with respect to the Class as a whole. Despite a clear ruling by the D.C. Circuit Court that the FAA violated § 336(a) of the Modernization and Reform Act of 2012, the FAA continued to collect and did not return registration fees, and did not delete the unlawfully collected personal information.
27. Furthermore, this action should be maintained as a class action because the prosecution of separate actions by individual members of the Class would create a risk of inconsistent or varying adjudications with respect to individual members which would establish incompatible standards of conduct for the parties opposing the Class, as well as a risk of adjudications with respect to individual members which would as a practical matter be dispositive of the interests of other members not parties to the adjudications or substantially impair or impended their ability to protect their interests.

COUNT I: VIOLATION OF THE PRIVACY ACT OF 1974, 5.U.S.C.A. § 552a
28. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-27 of the Complaint as if fully set forth herein.
29. The Privacy Act mandates that agencies that maintain a “system of records” must “maintain in its records only such information about an individual as is relevant and necessary to accomplish a purpose of the agency required to be accomplished by statute or by executive order of the President.” 5 U.S.C.A. § 552a(e)(1).
30. Plaintiff and the Class meet the definition of an “individual” within the meaning of 5 U.S.C.A. § 552a(a)(2). Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 8 of 16
31. The FAA is an agency that must comply with 5 U.S.C.A. § 552a(e)(1) in its maintenance of records.
32. The personal information of Plaintiff and the Class collected and maintained by the FAA is a “system of records” within the meaning of 5 U.S.C.A. § 552a(a)(5). Moreover, the Plaintiff and the Class’s personal information was incorporated into a “system of records.”
33. The D.C. Circuit ruled that the FAA lacked statutory authority to promulgate the Registration Rule and thus vacated the Registration Rule. Taylor v. Huerta, 856 F.3d 1089, 1093-94 (D.C. Cir. 2017). As such, the FAA lacked authority to collect registration fees from Plaintiff and the Class and to collect from and maintain their personal information.
34. Thus, the maintenance of a “system of records” for Plaintiff and the Class from December 21, 2015 to December 11, 2017 was not only not relevant or necessary, but it was unlawful. Accordingly, the FAA violated 5 U.S.C.A. § 552a(e)(1) by promulgating the Registration Rule and maintaining a registry of Model Aircraft owners from December 21, 2015 to December 11, 2017 that was not relevant or necessary to accomplish a purpose required to be accomplished by statute or by executive order of the President.
35. Section 552a(g)(1)(D) provides that a civil action can be brought when an agency “fails to comply with any other provision of this section, or any rule promulgated thereunder, in such a way as to have an adverse effect on an individual.”
36. Plaintiff and the Class can bring and maintain an action for civil remedies against Defendants under 5 U.S.C.A. § 552a(g)(1)(D) for the FAA’s failure to comply with 5 U.S.C.A. § 552a(e)(1).
37. Plaintiff and the Class experienced adverse effects due to the FAA’s violation of 5 U.S.C.A. § 552a(e)(1), including actual damages. The damages suffered by Plaintiff and other Class members included pecuniary harm. The FAA charged Plaintiff and the Class a $5.00 fee to collect and unlawfully maintain information about Plaintiff and other Class members in the FAA’s system of records. In addition, the FAA deprived Plaintiff and other Class members of use of those funds.

38. Plaintiff and the Class do not need to exhaust their administrative remedies before bringing this claim under 5 U.S.C.A. § 552a(g)(1)(D).

39. The FAA acted willfully and intentionally within the meaning of 5 U.S.C.A. § 552a(g)(4) because it knew or should have known that it lacked the statutory authority for promulgating the Registration Rule, but it did so anyway. Further, once the D.C. Circuit vacated the Registration Rule, the FAA did not delete the personal information of Plaintiff and the Class members and did not refund their registration fees. In addition, the FAA continued the registration process even after the D.C. Circuit held that the FAA was prohibited from doing so.
40. Plaintiff and the Class members are each entitled to statutory damages in a sum of no less than $1,000 plus attorneys’ fees and costs. 5 U.S.C.A. § 552a(g)(4).

COUNT II: VIOLATION OF THE LITTLE TUCKER ACT, 28 U.S.C. § 1346
41. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-40 of the Complaint as if fully set forth herein.
42. The Little Tucker Act waives sovereign immunity for Plaintiff and the Class to bring this cause of action and this lawsuit against the federal government.
43. Plaintiff and the Class do not need to exhaust their administrative remedies before bringing this claim and lawsuit under the Little Tucker Act.
44. Courts routinely recognize illegal exaction claims when the government takes money from individuals in violation of a statute. Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 10 of 16
45. Plaintiff and the Class bring this claim under the Little Tucker Act for the Defendants’ illegal exaction of $5.00 registration fees and personal information from at least 836,7960 owners of Model Aircraft between December 21, 2015 and December 11, 2017, despite the lack of statutory authority to do so given the D.C. Circuit’s decision in Taylor v. Huerta.
46. As set forth above, Plaintiff and the Class have suffered damages and are each entitled to damages of not more than $10,000 each under 28 U.S.C. § 1346(a)(2).

COUNT III: CONSTITUTIONAL VIOLATION
47. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-46 of the Complaint as if fully set forth herein.
48. Defendants have a duty to Plaintiff and the Class to act in a manner consistent with their constitutional rights and to not deprive them of those rights.
49. Plaintiff and the Class have a right to be free from acts and omissions of Defendants that deprive Plaintiff and the Class of rights protected by the Constitution of the United States, including privacy rights guaranteed by the Constitution.
50. Plaintiff and the Class have a right to the protections afforded to them through the process of judicial review under Article 3 of the Constitution of the United States, which declared the FAA’s Registration Rule unlawful.
51. Plaintiff and the Class have a right not to be subject to the requirements of the Registration Rule from December 21, 2015 to December 11, 2017, which was declared unlawful by a court of competent jurisdiction.
52. Plaintiff and the Class have a right to be free from civil and criminal penalties for their failure to comply with a regulation that has been declared unlawful by a court of competent jurisdiction.
53. The Defendants violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule without any statutory authority to do so. Further, once the D.C. Circuit vacated the Registration Rule, the Defendants did not delete the private and personal information of Model Aircraft owners and did not refund their registration fees. In addition, the Defendants unlawfully continued the registration process and unlawfully maintained Plaintiff and the Class’s private and personal information even after the D.C. Circuit held that the Defendants were prohibited from doing so.
54. Plaintiff and the Class have exhausted any administrative remedies.
55. As a result of the Defendants’ violation of Plaintiff and the Class’s Constitutional and privacy rights, Plaintiff and the Class have suffered damages.

COUNT IV: UNJUST ENRICHMENT
56. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-55 of the Complaint as if fully set forth herein.
57. Plaintiff and the Class conferred a benefit to the Defendants through providing them their personal information and over $4,183,980 in ill-gotten registration fees.
58. The Defendants knowingly accepted and retained the benefit as they unlawfully maintained a registry of Plaintiff and the Class’s personal information and collected over $4,183,980 in registration fees in violation of the law.
59. Given the D.C. Circuit’s decision which declared that the Registration Rule was unlawful, it would be unjust for the Defendants to retain the personal information of over 836,796 owners of Model Aircraft and over $4,183,980 in registration fees.
60. The Defendants should not be permitted to maintain the personal information and registration fees of Plaintiff and owners of Model Aircraft from December 21, 2015 until December 11, 2017 because the Defendants unlawfully and unjustly received them as a result of its unlawful actions described herein.
61. As set forth above, the Defendants have waived sovereign immunity for this lawsuit.
62. Notwithstanding statutory damages for other claims, Plaintiff and the Class also seek restitution in an additional amount of no less than $4,183,980 for the Defendants’ unjust enrichment, as well as interest and attorneys’ fees and costs.

COUNT V: DECLARATORY RELIEF
63. Plaintiff and the Class incorporate by reference the allegations contained in Paragraphs 1-62 of the Complaint as if fully set forth herein.
64. There exists an actual controversy between Plaintiff and the Class, and the Defendants.
65. Pursuant to 28 U.S.C. § 2201, this Court may declare the rights and other legal relations of any interested parties seeking a declaration. Any such declaration shall have the force and effect of a final judgment.
66. The Registration Rule from December 21, 2015 to December 11, 2017 was unlawful. Therefore, the no less than 836,796 registrations of owners of Model Aircraft for
hobby or recreational purposes during the period of December 21, 2015 to December 11, 2017 were unlawful.
67. Thus, the collection and maintenance of personal information about Plaintiff and Class members and the collection of their registration fees from December 21, 2015 to December 11, 2017 was unlawful.
68. The Defendants violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule from December 21, 2015 to December 11, 2017.
69. The FAA violated the Privacy Act, 5 U.S.C.A. §552a(e)(1) by maintaining a registry of owners of Model Aircraft from December 21, 2015 to December 11, 2017 that was not relevant or necessary to accomplish a purpose required to be accomplished by statute or by executive order of the President. Further, it was unlawful. As such, Plaintiff and the Class are each entitled to statutory damages from the FAA in a sum of no less than $1,000 plus attorneys’ fees and costs. Moreover, Plaintiff and the Class are also entitled to restitution damages from the Defendants in the amount of no less than $4,183,980 for the FAA’s unjust enrichment of registration fees.

JURY DEMAND

Plaintiff and the Class request a trial by jury on all issues so triable.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff and the Class pray for an Order as follows:
A. Finding that this action satisfies the prerequisites for maintenance as a class action and certifying the Class defined herein; Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 14 of 16
15
B. Designating Plaintiff as the representative of the Class and undersigned counsel as Class Counsel;
C. Declaring that the Registration Rule from December 21, 2015 to December 11, 2017 was unlawful;
D. Declaring that there were no less than 836,796 registrations of owners of Model Aircraft for hobby or recreational purposes during the period of December 21, 2015 to December 11, 2017, which were unlawful;
E. Declaring that the collection and maintenance of personal information about Plaintiff and Class members and the collection of their registration fees from December 21, 2015 to December 11, 2017 was unlawful;
F. Declaring that the Defendants violated Plaintiff and the Class’s Constitutional and privacy rights by unlawfully promulgating the Registration Rule and enforcing the Registration Rule from December 21, 2015 to December 11, 2017;
G. Declaring that the FAA violated §552a(e)(1) of the Privacy Act and that Plaintiff and the Class are each entitled to an award of no less than $1,000 plus attorneys’ fees and costs;
H. Declaring that the Defendants violated the Little Tucker Act and that Plaintiff and the Class are each entitled to an award of up to $10,000;
I. Declaring that Plaintiff and the Class are also entitled to restitution damages from the Defendants in the amount of no less than $4,183,980 for the Defendants’ unjust enrichment of registration fees;
J. Ordering the deletion of records collected and maintained by the Defendants regarding Plaintiff and the Class collected between December 21, 2015 and December 11, 2017;
K. Entering judgment in favor of Plaintiff and the Class against Defendants; Case 1:18-cv-00035-APM Document 1 Filed 01/05/18 Page 15 of 16
16
L. Awarding Plaintiff and the Class a sum of no less than $836,796,000 for violations of the Privacy Act and the Little Tucker Act, and a sum of no less than $4,183,980 for the ill-gotten registration fees;
M. Awarding Plaintiff and the Class attorneys’ fees and costs, including interest, as allowed or required by law;
N. Granting all further and other relief as the Court deems just and appropriate.

ROBERT C. TAYLOR

Quick Summary of Reichert v. FAA:

The FAA created a set of registration regulations, contrary to law, which resulted in a lawsuit from John Taylor. The D.C. Circuit Court of Appeals struck down the law as being illegal. Now the FAA is getting sued in a class action lawsuit. The complaint is asking the court to (1) refund the illegal $5 registration fee that the class members paid to the FAA, (2) destroy all records illegally collected or created for each class member, (3) remove any reference to each proposed member’s registration, and (4) pay all costs and attorney fees.

Before we dive into some of the facts of the case, I just wanted to remind you that if you are needing help with waivers, authorizations, navigating drone law, or other legal matters relating to drones, please feel free to contact me.

Also, wanting to read more drone law cases? Go to my Drone Lawsuit/Litigation Database. :)

Table of Contents

• Background of Reichert v. FAA
• Summary of the Reichert v. FAA Argument
• Actual Text of Complaint

Background of Reichert v. FAA:

The FAA Modernization and Reform Act (“FMRA”) of 2012 created a special protection on model aircraft that restricted the FAA’s regulation of them. The Section of the FMRA that outlined the restriction on the FAA is in Section 336. The FAA created a new set of regulations in Part 48  governing the Section 336 protected model aircraft. John Taylor filed a lawsuit against the FAA challenging the FAA’s Part 48 regulations. The D.C. Circuit Court of Appeal agreed with Taylor and held the drone regulations to be illegally created. (Note there were MANY reasons why it was illegal but the court only ruled on one of them). If you want to get into the details, here is my complete guide to the Taylor v. Huerta lawsuits.

The FAA eventually came out with a de-registration and refund process somewhat discreetly. The FAA’s reasoning for how they chose to do things was explained in a FAA memo I have a copy of:

“Although it is possible to collectively identify those who registered as ‘hobbyists’ in the registration database, the FAA is continuing to encourage voluntary registration by all small UAS owners for purposes of continuing education, which is essential to the purpose of the agency. It would therefore be counterintuitive to automatically delete the entire subset of ‘hobbyist’ owners without allowing those who are already registered the opportunity to remain registered.”

The de-registration and refund process appears to be intentionally designed to be difficult and also designed to dissuade potential applicants. See my article on the 5 evidences of this. 

After the Taylor v. Huerta ruling, Reichert called 844-FL Y-MY-UA for assistance to get refunded and de-registered. He left a message. As of the filing date, Reichert had not received a return call. On June 12, 2017, Reichert’s attorneys filed a class action lawsuit in federal district court. It is currently being litigated.

After Reichert filed, on December 12, 2017, the National Defense Authorization Act of 2017 “restored the Part 48 registration regulations for model aircraft” which basically amounted to Congress overuling the court in the Taylor v. Huerta case.

Note: that there is an even bigger class action lawsuit going on right now with the Robert Taylor v. FAA case regarding the drone registration regulations.

Summary of the Reichert v. FAA Argument:

The Little Tucker Act, 28 USC Section 1346, removes sovereign immunity from the FAA and “provides jurisdiction to recover an illegal exaction by government officials when the exaction is based on an asserted statutory power.” Aerolineas Argentinas v. U.S, 77 F.3d 1564, 1573 (Fed. Cir. 1996).

Section 336 told the FAA to not create a regulation governing model aircraft. The FAA did that and the Taylor v. Huerta ruling confirms that the FAA illegally created it.  Thus, all money and information collected pursuant to it were illegally obtained.

Actual Text of Reichert v. FAA Complaint

MICHAEL REICHERT, et al.
Plaintiffs,
v.
MICHAEL P. HUERTA, AS ADMINISTRATOR,
FEDERAL AVIATION ADMINISTRATION,

JURY TRIAL DEMANDED
CLASS ACTION COMPLAINT

1. In 2012, Congress directed the Administrator of the Federal Aviation
Administration (“FAA”) not to “promulgate any rule or regulation regarding model aircraft” flown
for recreational or hobby use under the FAA Modernization and Reform Act of 2012. Pub. L. 112-
95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note) (hereafter “FAA
Modernization and Reform Act of 2012”). Contrary to this clear directive, the FAA has been
exacting money and personal data illegally since at least December 21, 2015, from the very
hobbyists Congress expressly exempted from FAA regulatory jurisdiction, by requiring the
registration of model aircraft for recreational or hobbyist purposes. Taylor v. Huerta, 856 F.3d
1089 (D.C. Cir. 2017).

2. Pursuant to the Little Tucker Act, 28 U.S.C. § 1346, Plaintiff Michael Reichert, on
behalf of himself and all members of the proposed Class of all owners of model aircraft who
registered their model aircraft with the FAA, seeks an order requiring the FAA to: (a) refund the
$5 registration fee that each proposed Class member paid; (b) destroy all records collected or
created for each proposed Class member; ( c) remove any reference to each proposed Class
member’s registration and ( d) pay all costs, disbursements and reasonable attorneys’ fees incurred
by the proposed Class in this action per 28 U.S.C. § 2412 or 28 U.S.C. § 1346.

THE PARTIES

3. Plaintiff Michael Reichert is a resident of Pulaski County, Arkansas.

4. Michael P. Huerta is the administrator of the FAA and is the appropriate individual
to sue in his official capacity on behalf of the FAA, which is part of the U.S. Department of
Transportation. The FAA’s address is 800 Independence Avenue SW, Washington, D.C. 20591.

JURISDICTION AND VENUE

5. This Court has original subject-matter jurisdiction over this action because it
involves a federal question under 28 U.S.C. § 1331 and a civil claim of not more than $10,000 per
claimant against the United States founded upon an act of Congress or a regulation of an executive
department under 28 U.S.C. § 1346(a)(2) of the Little Tucker Act.

6. Venue is proper under 28 U.S.C. § 1391 because the FAA is subject to personal
jurisdiction here and regularly conducts business in the Eastern District of Arkansas and because
a substantial part of the claims asserted herein occurred and continue to occur in this district.

FACTUAL ALLEGATIONS

7. In 2012, Congress put an end to the “debate over regulation of unmanned aircraft”
and passed the FAA Modernization and Reform Act of 2012, which “codified the FAA’s
longstanding hands-off approach to the regulation of model aircraft” under § 3 3 6 of the Act, called
the “Special Rule for Model Aircraft.” Taylor, 856 F.3d at 1091.

8. The FAA Modernization and Reform Act of2012 § 336(a) says, “Notwithstanding
any other provision of law relating to the incorporation of unmanned aircraft … the Administrator
of the Federal Aviation Administration may not promulgate any rule or regulation regarding model
aircraft …. “FAA Modernization and Reform Act of 2012.

9. The FAA Modernization and Reform Act of 2012 § 336(c) defines model aircraft
(hereafter “Model Aircraft”) as “unmanned aircraft” that is “( 1) capable of sustained flight in the
atmosphere; (2) flown within visual line of sight of the person operating the aircraft; and (3) flown
for hobby or recreational purposes.” FAA Modernization and Reform Act of 2012.

10. In direct violation of Congress’s explicit prohibition against such rule-making, the
FAA promulgated rules or regulations December 16, 2015, to require all Model Aircraft hobbyists
to register online their Model Aircraft, pay a $5 registration fee, provide detailed information on
the owner and be subject to criminal jail time up to three years and fines up to $250,000 for not
registering these toys. Registration and Marking Requirements for Small Unmanned Aircraft, 80
Fed. Reg. 78594 (Dec. 16, 2015), which amended Title 14 of the Code of Federal Regulations
(“Registration Rule”).

11. Effective December 21, 2015, the Registration Rule requires “[a]ny small
unmanned aircraft to be used exclusively as [M]odel [A]ircraft that have never been operated” to
be registered with the FAA. Id.

12. Effective February 19, 2016, the Registration Rule requires “[s]mall unmanned
aircraft to be used exclusively as Model Aircraft and have been operated by their owner prior to
December 21, 2015,” to be registered with the FAA. Id.

13. After Plaintiff registered his Model Aircraft, paid a $5 registration fee and provided
the required personal information, the FAA issued him a Small UAS Certificate of Registration on
February 19, 2016.

14. As of December 21, 2016, more than 616,000 members of the proposed Class had
registered their Model Aircrafts with the FAA, paid the FAA a $5 registration fee and provided
personal information to the FAA. www.faa.gov/news/updates/?newsld=87049 (December 21,
2016).

15. On May 19, 2017, the U.S. Appeals Court forthe District of Columbia held, “The
FAA’ s 2015 Registration Rule, which applies to Model Aircraft, directly violates that clear
statutory prohibition . . . [so we] vacate the Registration Rule to the extent it applies to Model
Aircraft.” Taylor, 856 F.3d at 1090.

16. On May 19, 2017, the FAA issued a press release stating it would continue to
regulate Model Aircraft and continue to accept registrations.
https://www.faa.gov/news/press_releases/news_story.cfm?newsld=21674. The FAA stated, “We
continue to encourage registration for all drone operators.” Id.

17. Upon learning of the D.C. Circuit Court’s holding, Plaintiff electronically
communicated a request to the FAA on June 2, 2017, for a refund of his $5 registration fee and for
his name to be removed from the FAA’s databases. Later that day, the FAA through its
[email protected] address emailed the Plaintiff: “We recommend contacting
the FAA directly via [email protected] or by calling 844-FL Y-MY-U A for assistance. You can
also visit https://www.faa.gov/uas/faqs/ for more information.” As directed by the FAA email,
Plaintiff called the FAA that same day and left a message substantially similar to his email request.
As of the filing date, Plaintiff has not received a return call.

18. Despite having its rules against requiring Model Aircraft registration vacated by
Taylor, the FAA’s website as of today’s filing continues to require hobbyists to pay money
(www.faa.gov/uas/faqs/#reg) to register their Model Aircraft weighing more than 0.55 pounds and
to disclose personal information when the owners want to “fly for fun.”
https://www.faa.gov/uas/ getting_ started/.

CLASS ALLEGATIONS

19. Plaintiff brings this action individually and on behalf of all others similarly situated
under the Federal Rules of Civil Procedure, Rule 23. This action satisfies the numerosity,
commonality, typicality and adequacy prerequisites under Rule 23(a). In addition, this action
satisfies the requirements of rule 23(b)(3) and, alternatively, Rule 23(b)(2).

20. The proposed Class is defined as the following:
All owners of Model Aircraft who registered their Model Aircraft
with the FAA

21. Plaintiff reserves the right to modify or amend the definition of the proposed Class
before the Court determines whether certification is appropriate.

22. Proposed Class counsel, any judge who hears this case, and the United States and
its agencies and instrumentalities are excluded from the proposed Class.

23. The members of the proposed Class are so numerous that joinder is impractical.
The proposed Class consists of hundreds of thousands of members, the identity of whom is within
the knowledge of the FAA and can be ascertained by access to FAA records.

24. The claims of the representative Plaintiff are typical of the proposed Class
members’ claims. Each registered his or her Model Aircraft, paid the FAA a $5 registration fee
and disclosed personal information. The FAA’ s misconduct violated federal statutes that
specifically prohibit the agency from making the rules or regulations above, which similarly
damaged the representative Plaintiff and all members of the proposed Class.

25. Furthermore, the factual basis of the FAA requiring hobbyists to register their
Model Aircraft violates § 33 8 of the FAA Modernization and Reform Act of 2012. The FAA’ s
illegal conduct is common to all members of the proposed Class and represents a common thread
of illegal conduct resulting in injury to all members of the proposed Class.

26. There are multiple questions of law and fact common to the proposed Class, and
those common questions predominate over all questions affecting only individual proposed Class
members. Among the questions of law and fact common to the proposed Class are:

a. Whether the FAA’s actions applied generally to the proposed Class under
Rule 23(b )(2) because the FAA imposed the same illegal requirements on each Model Aircraft
owner: a registration fee, disclosure of personal data, and display of an FAA-issued unique
identifier on each Model Aircraft;
b. Whether the Registration Rule violated§ 336 of the FAA Modernization
and Reform Act of2012;
c. Whether the FAA continues to commit wrongdoing through its failure to
comply with§ 336 of the FAA Modernization and Reform Act of2012;
d. Whether restitution of registration fees is an appropriate remedy;
e. The proper method or methods by which to measure damages; and
f The proper injunctive relief

27. Plaintiffs claims are typical of the claims of other proposed Class members in that
they arise out of the same failure on the part of the FAA to comply with federal law, and Plaintiff
and all members of the proposed Class paid the same registration fee, had to disclose personal
information as part of the registration process, and are required to affix a unique identification
number to their Model Aircraft.

28. Plaintiff has suffered the harm alleged and has no interests antagonistic to the
interests of any proposed Class member.

29. Plaintiff is committed to the vigorous prosecution of this action and has retained
competent counsel experienced in the prosecution of class actions. Thus, Plaintiff is an adequate
representative and will fairly and adequately protect the interests of the proposed Class.

30. A class action is superior to other available methods for the fair and efficient
adjudication of this controversy. Because the claim amount for each proposed Class member is
very small relative to the complexity of the litigation and the United States Government has
virtually unlimited financial resources, no proposed Class member could afford to seek legal
redress individually for the claims alleged herein. Therefore, absent a class action, each proposed
Class member will continue to suffer losses, expend needless energy resolving one’s claim and
protecting one’s privacy, and be at the mercy of the FAA’ s misconduct without remedy.

31. Even if each proposed Class member could afford to litigate individually, the court
system could not. Given the complex legal and factual issues involved, individualized litigation
would significantly increase the delay and expense to all parties and to the Court. Individualized
litigation also would create the potential for inconsistent or contradictory rulings. By contrast, a
class action presents far fewer management difficulties, allows claims to be heard which might
otherwise go unheard because of the relative expense of bringing individual lawsuits and provides
the benefits of adjudication, economies of scale and comprehensive supervision by a single court.

32. Alternatively, class certification is appropriate pursuant to Rule 23(b )(2). In acting
as alleged above, and in failing and refusing to cease and desist despite contrary directives from
Congress and rulings by the D.C. Circuit, Defendant has acted on grounds generally applicable to
the entire proposed Class, thereby making final injunctive relief and corresponding declaratory
and equitable relief appropriate with respect to the proposed Class as a whole. The prosecution of
separate actions by individual proposed Class members would create the risk of inconsistent or
varying adjudications with respect to individual proposed Class members that would establish
incompatible standards of conduct. In addition, injunctive relief is necessary to prevent further
unlawful and unfair conduct by Defendant. Money damages, alone, could not afford adequate and
complete relief, and injunctive relief is necessary.to restrain Defendant from continuing to commit
its illegal acts.

CLAIM FOR RELIEF: ILLEGAL EXACTION
(Violation of Little Tucker Act, 28 U.S.C. § 1346)

33. Plaintiff repeats paragraphs 1through32 above.

34. Plaintiff and the proposed Class bring this action under the Little Tucker Act, 28
U.S.C. § 1346, which waives sovereign immunity and “provides jurisdiction to recover an illegal
exaction by government officials when the exaction is based on an asserted statutory power.”
Aerolineas Argentinas. United States, 77F.3d 1564, 1572-74 (Fed. Cir. 1996)(allowing an illegal exaction
claim for excess user fees).

35. Regardless of whether a statute creates an express cause of action, courts have a
history of recognizing such illegal-exaction claims when the government takes money from a
claimant in violation of a statute. Norman v. United States, 429 F.3d 1081, 1095 (Fed. Cir. 2005).

36. Here, hundreds of thousands of people were forced to pay a registration fee, give
up personal information and suffer other indignities with little, if any, public gain because of aJ.)
overreaching administrator at the FAA who acted in violation of§ 338 of the FAA Modernization
and Reform Act of 2012.

3 7. Plaintiff and members of the proposed Class have sustained damages from the
FAA’ s disregard for Congressional authority forbidding the FAA from regulating hobbyist and
recreational use of Model Aircraft as alleged herein, which continues to also violate privacy rights
and has exacted money from hundreds of thousands of Model Aircraft owners.

3 8. Plaintiff, on behalf of himself and proposed Class members, demands a jury trial.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff, on behalf of himself and all Class Members, request that
judgment be entered against Defendant and that the Court grant the following relief:

A. An order determining that this action may be maintained as a class action
pursuant to Rule 23(b)(3), or alternatively Rule 23(b)(2), of the Federal Rules of
Civil Procedure, that Plaintiff is a proper class representatives, that Plaintiff’s
attorneys be appointed Class counsel pursuant to Rule 23(g) of the Federal Rules
of Civil Procedure, and that Class notice be promptly issued;
B. Judgment against Defendant for Plaintiffs’ and Class Members’ asserted causes of
action;
C. Appropriate declaratory relief against Defendant;
D. An award of damages to Plaintiff and Class Members and restitution of all monies
collected during the registration process;
E. Preliminary and permanent injunctive relief against Defendant, including but not
limited to destruction of all records collected or created on every Class member
and removal of any reference to each Class member’s registration;
F. An award of reasonable attorney’s fees and other litigation costs reasonably
incurred pursuant to 28 U.S.C. § 2412, 28 U.S.C. § 1346 and any other applicable
law; and
G. Any and all additional relief to which Plaintiff and Class Members may be
entitled.