Reichert v. FAA-(Drone Registration Class Action Lawsuit)


drone-lawsuitsQuick 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:

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.