Electronic Privacy Information Center v. Federal Aviation Administration
2016 U.S. App. LEXIS 8553
| D.C. Cir. | 2016Background
- Congress enacted the FAA Modernization and Reform Act of 2012 directing the FAA to develop a plan and regulations for integrating civil unmanned aircraft systems; the Act did not address privacy.
- On February 24, 2012 EPIC petitioned the FAA to issue drone privacy regulations.
- On November 26, 2014 the FAA sent a letter stating it was "dismissing [the] petition for rulemaking" under 14 C.F.R. § 11.73 but also said it had begun a rulemaking and would consider EPIC’s comments as part of that project.
- EPIC filed for judicial review on March 31, 2015, 125 days after the FAA letter—missing the 60-day filing deadline in 49 U.S.C. § 46110(a).
- EPIC alternatively sought to treat the FAA’s February 23, 2015 NPRM (which stated privacy was beyond that rulemaking’s scope) as the operative agency act and challenged that; the court considered whether the NPRM or FAA letter triggered reviewability.
- The court dismissed EPIC’s petition: EPIC’s challenge to the FAA dismissal was time-barred and its challenge based on the NPRM was premature because an NPRM is not a final, reviewable agency order.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether EPIC’s petition for review of the FAA’s November 26, 2014 letter is timely or excused | EPIC: FAA letter was ambiguous/misleading enough to provide "reasonable grounds" to file late or, alternatively, the February 2015 NPRM effectively acted as the dismissal starting the 60-day clock | FAA: Letter was a dismissal triggering the 60-day limitations period; EPIC should have filed within 60 days; NPRM is not a final order and therefore unreviewable | Court: EPIC’s challenge to the dismissal is time-barred; no reasonable-ground justification for delay; Americopters and Safe Extensions principles apply (file protectively) |
| Whether the February 23, 2015 NPRM is a final, reviewable order or otherwise triggers review of the FAA’s intent to omit privacy provisions | EPIC: FAA’s statement in the NPRM that privacy is beyond its scope constitutes a reviewable action or shows the FAA’s intent such that review need not await a final rule | FAA: An NPRM is not final agency action; it does not consummate decisionmaking or impose legal obligations | Court: NPRM is not final and thus not reviewable; agency intent expressed only in an NPRM cannot be judicially reviewed under § 46110 |
Key Cases Cited
- Vill. of Bensenville v. FAA, 457 F.3d 52 (D.C. Cir. 2006) (§ 46110 jurisdiction requires a final agency order)
- Safe Extensions, Inc. v. FAA, 509 F.3d 593 (D.C. Cir. 2007) (equitable tolling when FAA affirmatively misrepresents that an order will be revised)
- Americopters, LLC v. FAA, 441 F.3d 726 (9th Cir. 2006) (attempting the wrong remedy or procedural missteps are not reasonable grounds for delay)
- Bennett v. Spear, 520 U.S. 154 (1997) (final agency action requires consummation of decisionmaking and legal consequences)
- In re Murray Energy Corp., 788 F.3d 330 (D.C. Cir. 2015) (NPRMs are non-reviewable because they are not final agency action)
- Agape Church, Inc. v. FCC, 738 F.3d 397 (D.C. Cir. 2013) (addresses final rule consistency with an NPRM but does not make NPRMs independently reviewable)
- Ass’n of Flight Attendants-CWA, AFL-CIO v. Huerta, 785 F.3d 710 (D.C. Cir. 2015) (application of § 46110 review to FAA actions)