[00:00:01] Speaker 00:
Case number 15-1075, electronic privacy information center petitioner versus federal aviation and registration at L. Mr. Rutenberg for the petitioner, Ms.

[00:00:12] Speaker 00:
Wright for the respondent.

[00:00:31] Speaker 03:
Let's wait until everybody gets out of their clothing.

[00:00:48] Speaker 05:
All right.

[00:00:48] Speaker 05:
Thank you.

[00:00:49] Speaker 05:
Good morning.

[00:00:50] Speaker 05:
My name is Mark Rotenberg for Petitioner Electronic Privacy Information Center.

[00:00:55] Speaker 05:
With me this morning are Kalia Barnes and Jeremy Scott.

[00:01:00] Speaker 05:
In 2012, President Obama signed the FAA Modernization and Reform Act.

[00:01:07] Speaker 05:
That law anticipated the rapid deployment of unmanned aerial vehicles, drones, in the United States.

[00:01:15] Speaker 05:
The FAA was tasked with developing a comprehensive plan to address the consequences of the act and to implement, by means of rulemaking, a public rule that would incorporate public comment.

[00:01:30] Speaker 05:
At the time the act was passed, privacy concerns about the deployment of drones were well known and widely understood.

[00:01:37] Speaker 05:
It is almost unique to this category of aircraft that they require cameras, which is to say you can put a helicopter in the air, you can put a crop duster in the air, you can shoot model rockets in the air.

[00:01:51] Speaker 05:
None of these crafts require cameras.

[00:01:54] Speaker 05:
But drones, in fact, do.

[00:01:56] Speaker 05:
And the cameras associated with drones, precisely because they observe objects at a distance, tend to be particularly sophisticated.

[00:02:05] Speaker 05:
And so shortly after the president signed this law, in fact, within 10 days, Epic, joined by more than 100 experts and organizations in the privacy field, submitted a petition to the agency.

[00:02:20] Speaker 05:
And in that petition, we asked the agency to undertake three very specific recommendations regarding public concerns about the privacy implications of drone deployment.

[00:02:34] Speaker 05:
A great deal of time passed.

[00:02:37] Speaker 05:
In November of 2014, almost two and a half years after the petition had been submitted, the agency responded.

[00:02:47] Speaker 05:
And it is this response, of course, that is the center of the dispute in this case.

[00:02:52] Speaker 04:
We have some jurisdictional questions to address, don't we?

[00:02:55] Speaker 05:
I would be happy to answer those, Your Honor, but could I proceed through the substantive argument?

[00:03:05] Speaker 04:
We don't have jurisdiction.

[00:03:06] Speaker 04:
We'll never get there.

[00:03:07] Speaker 05:
Well, we believe you do have jurisdiction under Section 46110 because the determination of the agency in the small drone rulemaking was, in fact, the final order.

[00:03:19] Speaker 05:
And that's what we're contesting.

[00:03:21] Speaker 05:
And that's the reason we believe the matters properly before this court.

[00:03:25] Speaker 04:
And so your statement on standing

[00:03:28] Speaker 05:
Our statement on standing is under both Havens Realty and Abigail Alliance of this circuit's decision.

[00:03:35] Speaker 05:
We have organizational standing that satisfies the three-factor requirement of Lujan.

[00:03:40] Speaker 04:
Which is the denial of your petition?

[00:03:45] Speaker 05:
Yes.

[00:03:46] Speaker 04:
And that's sufficient under this circuit's law?

[00:03:49] Speaker 04:
Because Havens Realty and the other case talk about a lot more.

[00:03:54] Speaker 05:
Yes, but the circuit has made clear that there is organizational standing where there is a programmatic harm to an organization like EPIC, which suffers... So what is the programmatic harm?

[00:04:05] Speaker 05:
The programmatic harm is simply that our opportunity to pursue our mission is directly now at loggerheads.

[00:04:12] Speaker 05:
with the agency's determination, and it will require us to pursue additional expenditures to try to address the public concerns about privacy.

[00:04:22] Speaker 05:
In fact, the FAA, precisely because it has jurisdiction over national airspace, in choosing not to exercise that jurisdiction with regard to the issues that EPIC has raised, has placed us in almost the most burdensome position

[00:04:36] Speaker 05:
to pursue our mission.

[00:04:37] Speaker 01:
But we have some cases that appear to stand for the proposition that expenditures that are in service of issue advocacy that's core to the organization aren't the sort of expenditures that give rise to standing because those are the kinds of expenditures that you would expect to do anyway.

[00:04:55] Speaker 05:
We're not talking in this instance about generalized expenditures or generalized issue advocacy.

[00:05:01] Speaker 05:
We're talking about an organization established for a specific purpose of addressing emerging privacy and civil liberties issues, confronting an agency that has chosen, even with a mandate from Congress and a petition properly before it, not to pursue that rulemaking.

[00:05:17] Speaker 05:
So we have been denied that opportunity, and as a consequence of having been denied that opportunity,

[00:05:22] Speaker 05:
will need to take additional steps, specifically in response to the agency's action.

[00:05:27] Speaker 05:
This is not an open-ended proposition for us.

[00:05:30] Speaker 05:
This is a consequence.

[00:05:31] Speaker 05:
This is the causation and redressability prongs of the Lujan test that we now confront.

[00:05:38] Speaker 05:
But if I may, I'm happy to answer the question further, but I would like to go to the central document.

[00:05:44] Speaker 04:
So just so I'm clear, I mean, this court has set a very high burden on standing.

[00:05:50] Speaker 04:
But that is what the court has done.

[00:05:56] Speaker 04:
And would you agree that, at least on this record, we don't have the type of record that we've had in those other cases where we found organizational standing in the context of denial of a petition?

[00:06:09] Speaker 05:
Yes.

[00:06:10] Speaker 05:
Well, certainly, Judge Rogers, the other side did not raise the standing issue.

[00:06:14] Speaker 04:
It doesn't matter.

[00:06:15] Speaker 05:
We understand that.

[00:06:16] Speaker 05:
We could supplement our briefing with affidavits and additional materials in support of standing if that were necessary.

[00:06:23] Speaker 05:
But I would point out that this circuit in 2014, I believe in Arc Alliance addressing a similar standing concern brought by environmentalists in roadless determination in the Snowmass Resort area.

[00:06:40] Speaker 05:
found standing without much difficulty simply based on an affidavit provided by one of the litigants that the decision by the agency to remove certain trees would be the type of adverse impact identified by the court in Lujan.

[00:06:55] Speaker 05:
I think we could do that here as well if that were necessary.

[00:06:58] Speaker 04:
And the nature of the affidavit would be what?

[00:07:01] Speaker 05:
The nature of the affidavit would establish that the agency's determination here would subject people to unwanted surveillance.

[00:07:09] Speaker 04:
I see.

[00:07:10] Speaker 04:
Get an affidavit from somebody whose property is.

[00:07:13] Speaker 05:
Yes.

[00:07:13] Speaker 04:
I see.

[00:07:14] Speaker 05:
And we have before the circuit brought a similar case against the TSA where we had affidavits establishing that members of our organization were subject to the body scanner program of the agency.

[00:07:25] Speaker 05:
And this circuit subsequently determined that a rulemaking was indeed appropriate.

[00:07:30] Speaker 05:
If I may then go to the November 2014 letter, because this is of course the crux of the case, and it must be read as against the agency's own regulation for the processing of petitions.

[00:07:45] Speaker 05:
Now the agency's regulation for the processing of petitions may be found in the administrative supplement on page 2.

[00:07:51] Speaker 05:
This is section 11.73.

[00:07:55] Speaker 05:
And the agency's response to EPIC may be found in the joint appendix, and this is on page 12.

[00:08:02] Speaker 05:
Now looking at the agency's process for processing petitions, the FAA says that when we have determined the disposition of your petition, we will respond in their words one of the following ways.

[00:08:15] Speaker 05:
And now they outline five different responses.

[00:08:18] Speaker 05:
And our contention is that paragraph C is precisely the response they gave us.

[00:08:25] Speaker 05:
Paragraph C says, if we have begun a rulemaking project in the subject area of your petition, we will consider your comments and arguments for a rule change as part of that project.

[00:08:35] Speaker 05:
We will not treat your petition as a separate action.

[00:08:37] Speaker 01:
So that argument makes some sense to me because of some of the language in it.

[00:08:41] Speaker 01:
Yes, precisely.

[00:08:42] Speaker 01:
But unfortunately for you, it also says we're dismissing.

[00:08:46] Speaker 01:
C, 11.73C doesn't talk about dismissal as the consequence, it talks about treating, we won't treat it as a separate action, and we'll treat it as part of the ongoing process.

[00:08:58] Speaker 05:
Yes, so let's try to understand how best to reconcile the fact that there is both some C language and some E language, E constituting the actual dismissal procedure by the agency in the response to the letter.

[00:09:14] Speaker 05:
So that paragraph on the bottom of 12 in the joint appendix says at the outset, after reviewing your request, we have determined that the issue you raised is not an immediate safety concern, and then goes on to restate

[00:09:27] Speaker 05:
precisely the language of C, which establishes the fact that the agency is now committed to consider the petition.

[00:09:37] Speaker 05:
So the question then becomes, how do we interpret the agency's subsequent use of the word dismissing your petition for rulemaking?

[00:09:45] Speaker 05:
And I think the simple way to understand this is that the agency has determined it is not going to undertake a separate rulemaking

[00:09:52] Speaker 05:
as had been requested by petitioners and is provided for under the regulation, but has chosen instead to consider the issues raised by the petitioners in the context of the related rulemaking, which is already underway, which is precisely what's contemplated by the agency's own regulation.

[00:10:12] Speaker 01:
First of all, it says moreover, which makes it seem like the primary ground is the one in the first sentence, which maps on directly to

[00:10:22] Speaker 01:
And then it says, moreover, we know you're saying some stuff about privacy, and we're going to take account of that in the context of rulemaking.

[00:10:39] Speaker 01:
is not an immediate safety concern per e. And so we're dismissing this.

[00:10:43] Speaker 01:
But privacy considerations will be taken into account as part of the rulemaking process.

[00:10:47] Speaker 05:
Yes, but let us also recognize that the agency says directly, we will consider your comments and arguments.

[00:10:55] Speaker 05:
Now, for us to come before this court and to say to you that was a final order denying our petition, I don't think we would have much traction.

[00:11:03] Speaker 05:
Because the agency has told us, in response to our petition, that they are planning to address

[00:11:08] Speaker 05:
concerns that we've raised, which is precisely the reason that having received this response from the agency, it didn't even occur to us that we were in a position where we might have been able to challenge this as a final order denying the petition.

[00:11:24] Speaker 05:
Now, I'd also like to point out, and also coming back to how we read C and E, if this were a true E determination, in other words, if the agency wanted to say we're exercising option five, they could have quoted explicitly seven, three, E. They never do.

[00:11:40] Speaker 05:
They simply refer to 7.3, which is the general provision.

[00:11:44] Speaker 05:
And they also would have said, consistent with E, not that they will consider our comments as part of the related rulemaking, but rather that they would have placed our comments for the rule change in a database.

[00:11:56] Speaker 05:
and consider in some future rulemaking, because that's the outcome under the agency's own regulation for the processing of petitions under this fifth option.

[00:12:06] Speaker 05:
So while we would agree this is not 100% unambiguous, we think it's closer to 90% clear than it is to a midpoint.

[00:12:19] Speaker 01:
Then how do you explain that it says we are dismissing?

[00:12:22] Speaker 05:
Because the agency interpreted our request for petition as a freestanding rulemaking, and the agency looking at its own regulations said, we are not going to go forward with a freestanding rulemaking, but we do have this related subject area where your issues can be considered.

[00:12:41] Speaker 05:
So the dismissal in its non-technical sense is simply meant to convey that the agency's decided to dismiss

[00:12:49] Speaker 05:
the petition for freestanding rulemaking.

[00:12:51] Speaker 05:
And as I said, just to flip things around for a moment, having received this letter, the thought of then trying to go forward and appeal this determination, I'm not even sure how we would have done that.

[00:13:02] Speaker 05:
I mean, we could have said, well, the agency could have been a little bit less ambiguous, which I guess is true.

[00:13:07] Speaker 05:
But we didn't take it as all that vague, given the agency's own regulation.

[00:13:13] Speaker 05:
And now, of course, what becomes most critical for us

[00:13:16] Speaker 05:
is having made this determination under 73C in the November 2014 response to us, the agency then announces in February of 2015 when it issues the rule that, quote, privacy concerns had been raised about unmanned aircraft operations, and then goes on to say these issues are beyond the scope of this rulemaking.

[00:13:44] Speaker 05:
These issues are beyond the scope of this rulemaking.

[00:13:47] Speaker 05:
Now, that is a final order.

[00:13:50] Speaker 05:
And that tells us that all of our efforts up to that point in time are for naught, because the agency has made this determination.

[00:14:00] Speaker 05:
Not only does it lack a reasoned decision-making basis, which this Court has certainly made clear, even under the brief statement rule in 55E as required, it actually contradicts

[00:14:13] Speaker 05:
its earlier position.

[00:14:15] Speaker 05:
And not only does it contradict its earlier position with regard to its response to EPIC's petition, it also contradicts numerous statements that the agency has made in the comprehensive plan, in the annual roadmap, in response to members of Congress.

[00:14:32] Speaker 01:
Do you think it contradicts what you're saying?

[00:14:34] Speaker 01:
The part that it contradicts is on JA-12 and the moreover couple of sentences?

[00:14:38] Speaker 05:
No, to be precise on this point, I'm referring now to the multiple places in the record where the agency says that it is going to address privacy issues.

[00:14:49] Speaker 05:
And it says this in many places.

[00:14:51] Speaker 05:
It says it when members of Congress write to the agency and say, how's the comprehensive plan going?

[00:14:56] Speaker 05:
What about privacy?

[00:14:57] Speaker 05:
It says privacy in the comprehensive plan that it provides to Congress.

[00:15:00] Speaker 05:
It says privacy in the roadmap.

[00:15:02] Speaker 01:
Can I ask you just a question?

[00:15:04] Speaker 01:
Is there a reason not to just file something protectively within the time limit?

[00:15:09] Speaker 05:
Under a reading that the November letter was a final order?

[00:15:14] Speaker 01:
Yeah.

[00:15:17] Speaker 05:
I'm not sure what it would have given us.

[00:15:20] Speaker 05:
I mean, if we made that argument in November, we might have been undoing what we believed we had achieved.

[00:15:26] Speaker 05:
Because as petitioner, seeking a rulemaking from an agency, and the agency saying in most simple terms, we will consider the issues you've raised in the related rulemaking,

[00:15:38] Speaker 05:
I'm now thinking, let's participate in that rulemaking.

[00:15:41] Speaker 05:
This is the way the APA process works.

[00:15:44] Speaker 05:
If I had to create a prophylactic, because the statement is not 100% certain, there would be a lot more litigation before this Court, and I don't think we want that.

[00:15:55] Speaker 05:
I think we have to rely

[00:15:57] Speaker 01:
Well, I'm glad you're looking out for us.

[00:15:59] Speaker 01:
I'm trying.

[00:15:59] Speaker 01:
I'm trying, Judge.

[00:16:02] Speaker 05:
And as I said, we're here on a very specific issue.

[00:16:04] Speaker 05:
I mean, this is not a broad, complex claim.

[00:16:08] Speaker 05:
This is a circumstance where the agency said it would do something pursuant to its own procedure.

[00:16:13] Speaker 05:
We're not going outside the record for a lot of extra textual material.

[00:16:17] Speaker 05:
We're simply saying to the agency, do what you said you would do.

[00:16:19] Speaker 05:
Now, I want to draw your attention, if I may, to one more critical point.

[00:16:24] Speaker 05:
which is the agency's conduct during this time period leading up till the February 23, 2015 rule, points entirely to the idea that they plan to consider privacy.

[00:16:38] Speaker 05:
So less than two weeks before they issue the rule, where they say privacy is beyond the scope of the rulemaking, this is what they say in their UAV fact sheet.

[00:16:50] Speaker 05:
And this is now in the Joint Appendix on 131.

[00:16:54] Speaker 05:
The agency will successfully meet the challenges posed by UAS technology in a thoughtful, careful manner that ensures safety and addresses privacy issues while promoting economic growth.

[00:17:06] Speaker 05:
They have said that they will address privacy issues, which of course is what we expected.

[00:17:11] Speaker 05:
Now, regarding the 7.3c analysis, I'd like to make one more point, if I could, in support of our interpretation.

[00:17:18] Speaker 05:
And this is referring to the agency's own regulation.

[00:17:21] Speaker 05:
You see, there was another organization similarly situated to EPIC, UAS America's Fund, that also sought to participate in this rulemaking.

[00:17:35] Speaker 05:
And they had specific recommendations with regard to microdrones that they wanted the FAA to consider.

[00:17:43] Speaker 05:
Apparently, the FAA made a similar determination, a 7-3C determination.

[00:17:50] Speaker 05:
And when they published the rule, this is 9558 in the Federal Register,

[00:17:57] Speaker 05:
attached as Exhibit 1 to our petition for review, this is what the agency says about the UAS America Fund.

[00:18:07] Speaker 05:
During the course of this rulemaking, the FAA also received a petition for rulemaking from UAS America Fund.

[00:18:13] Speaker 05:
The petition presented the FAA with an alternative approach to regulating micro drones.

[00:18:19] Speaker 05:
Because, here's the agency's language from the regulation, because the FAA was already in the process of rulemaking at the time this petition was filed, pursuant to 14 CFR 1173C,

[00:18:34] Speaker 05:
There it is.

[00:18:35] Speaker 05:
The FAA will not treat this petition as a separate action, but rather will consider it as a comment on this rulemaking.

[00:18:44] Speaker 05:
Accordingly, the FAA has placed a copy of UAS America Fund's rulemaking petition in the docket for this rulemaking and invites comments on the suggestions presented in this petition.

[00:18:57] Speaker 05:
Any comments received in response to the proposals in the petition will be considered in this rulemaking.

[00:19:03] Speaker 05:
That's exactly how the agency should have treated the epic petition.

[00:19:08] Speaker 05:
It's exactly what we would have expected under the agency's own regulation for the processing of a 7-3-C petition.

[00:19:18] Speaker 05:
Now, if I may, I'd like to turn to the issue of remedy, because I think this is the hard issue before the court.

[00:19:25] Speaker 05:
And we're well aware that courts are reluctant to instruct agencies to undertake rulemakings.

[00:19:34] Speaker 05:
It's an unusual circumstance.

[00:19:36] Speaker 05:
In fact, American Horse, which is the lead case in this area, looks back at an earlier case called Geller versus FCC.

[00:19:47] Speaker 05:
This is a fascinating case from 1979.

[00:19:49] Speaker 05:
And the question in Geller versus FCC

[00:19:55] Speaker 05:
was whether the agency had an obligation to undertake a rulemaking when there are substantial changes, in fact, that altered the circumstances that justified the initial rule.

[00:20:07] Speaker 05:
And the case was put before the DC Circuit as to why this required the rule.

[00:20:12] Speaker 05:
Ultimately, the court finds for the rule, but in subsequent decisions, pulls back a bit on Geller.

[00:20:18] Speaker 05:
I think in WWTH, which was a 1981 case,

[00:20:22] Speaker 05:
says this is really only for extraordinary circumstances that we would consider requiring an agency to undertake a rule.

[00:20:30] Speaker 05:
But here's the remarkable fact about this case.

[00:20:34] Speaker 05:
We are not asking you to order the agency to undertake a rulemaking in opposition to the agency's determination that it need not undertake the rulemaking.

[00:20:46] Speaker 05:
We are asking you to order the agency to undertake the rulemaking because the agency has already said it will undertake the rulemaking, and the agency has provided no reasoned basis or no substantial change in fact, though it justified its failure to undertake the rulemaking.

[00:21:04] Speaker 05:
This is arbitrary and capricious agency action under 706.82.

[00:21:09] Speaker 05:
It's a plain error of law.

[00:21:11] Speaker 05:
under the interpretation of the FAA Modernization Reform Act.

[00:21:15] Speaker 05:
But as Geller versus FCC also suggests, this is a plainly misguided decision by an agency.

[00:21:23] Speaker 05:
In this case, where an agency has committed to undertake a rulemaking and subsequently reverses that decision without providing any basis for that determination, we believe it's fully appropriate for the court to instruct the agency on remand to undertake the rule it said it would.

[00:21:46] Speaker 04:
Can I just ask you for information, and I don't want to take a lot of time on this, but there's this reference to this intra-agency DOT, FAA, et cetera.

[00:22:01] Speaker 04:
Is your issue, as it were, being addressed in that context, sort of an intra-agency effort, with the idea that there might be a rulemaking at the end of it?

[00:22:12] Speaker 05:
Right.

[00:22:12] Speaker 05:
So this is an important issue, and most likely the agency will argue in response that the reason it chose not to issue a rule is because it committed to participate in what it describes as a multi-stakeholder process, which was established by the president's memorandum in February of 2015.

[00:22:34] Speaker 05:
I'd like to make three points as to the argument.

[00:22:38] Speaker 05:
First of all, the act itself instructed the agency to undertake a rulemaking.

[00:22:44] Speaker 05:
There's no discussion in 2012 about a multi-stakeholder process.

[00:22:48] Speaker 05:
Second, the president's memorandum of 2015 doesn't even mention the FAA is playing any particularly significant role in that process.

[00:22:58] Speaker 05:
And third, the president's memorandum quite explicitly, as do most presidential memorandums,

[00:23:04] Speaker 05:
says it creates no new rights or obligations.

[00:23:08] Speaker 05:
Now, of course, if you are petitioning the agency because you believe that the agency has an obligation to undertake a rule in a subject matter of interest to you, the agency's participation in this related process is not a bad thing, but it's hardly a substitute for what we anticipated would result from the 2012 Act.

[00:23:27] Speaker 05:
All right.

[00:23:30] Speaker 05:
Thank you.

[00:23:32] Speaker 03:
Thank you.

[00:23:40] Speaker 02:
Good morning, Your Honor.

[00:23:41] Speaker 02:
Abby Wright on behalf of the FAA.

[00:23:43] Speaker 02:
I'm happy to start wherever you'd like, but I thought I would start with the jurisdictional questions before this court.

[00:23:48] Speaker 02:
I think we disagree on the reading of the letter.

[00:23:51] Speaker 02:
I think the last sentence of that letter.

[00:23:54] Speaker 01:
Can you just start with standing, though?

[00:23:56] Speaker 01:
Sure, yeah.

[00:23:56] Speaker 01:
So you didn't oppose standing in your brief.

[00:23:59] Speaker 02:
We didn't.

[00:24:00] Speaker 02:
And preparing for this argument, frankly, Your Honor, we do think there is a close question here.

[00:24:04] Speaker 02:
I want to be clear that they've only raised organizational standing in their brief.

[00:24:08] Speaker 02:
When discussing the affidavits, Council mentioned their members standing, and I don't think they've advanced an associational standing claim in their brief.

[00:24:17] Speaker 01:
So can I ask you to address one thing in the course of your response on standing, which is, I take it you agree that timeliness is non-jurisdictional?

[00:24:26] Speaker 02:
That's correct.

[00:24:27] Speaker 02:
The Senate itself contemplates reasonable grounds for delay.

[00:24:29] Speaker 01:
So then the question would be, if there's a standing issue and a timeliness issue, is timeliness the sort of threshold issue that the court can consider in advance of standing, like forum nonconvenience or something, where even though it's non-jurisdictional, it's still a threshold ground that we can reach?

[00:24:45] Speaker 02:
I don't think there's any case law on that issue.

[00:24:47] Speaker 02:
That seems to be an open question that the Supreme Court has left open in terms of what exactly can be the kind of thing that jumps in line.

[00:24:53] Speaker 02:
And so I don't have an answer.

[00:24:56] Speaker 02:
We haven't briefed it.

[00:24:58] Speaker 02:
It seems like it is a sort of threshold question that might.

[00:25:00] Speaker 02:
But it is an Article III question, obviously, for standing.

[00:25:03] Speaker 02:
So under steel code, unless there were some sort of other threshold issue, you would need to address standing first.

[00:25:09] Speaker 02:
And the reason it's a close question, I think, is under Haven's Realty and Abigail Alliance, it's a fine line between

[00:25:15] Speaker 02:
Is the agency doing something that just is against my mission, or does it affect my programmatic activities?

[00:25:20] Speaker 02:
And we read their brief to argue that the programmatic activity they were alleging was effective was they were going to go out to each state, sort of state by state, local government by local government, to work on privacy regulations versus a federal forum that they've asked for.

[00:25:35] Speaker 02:
I don't know if that's enough.

[00:25:37] Speaker 02:
I think Abbeal Alliance, the plaintiffs there, didn't say a whole lot more than that.

[00:25:41] Speaker 02:
And this court did find standing.

[00:25:43] Speaker 02:
So, you know, we would obviously have no objection to this case being dismissed on standing grounds or, you know, supplemental briefing on that if this court were interested.

[00:25:52] Speaker 01:
But you're not taking a position on standing.

[00:25:55] Speaker 01:
Your view now is it's a close question, but you haven't come down on one side or the other?

[00:25:58] Speaker 02:
I think, as I said, we have no objection.

[00:26:01] Speaker 02:
I think there are serious questions here, so it might be appropriate for additional affidavits to be submitted and then responses to those.

[00:26:09] Speaker 02:
Depending on what I've heard Castle say this morning was different than what I took their brief to say.

[00:26:14] Speaker 02:
So it might be a good thing to get more definite information on that.

[00:26:19] Speaker 02:
And then moving on to the threshold issue of timeliness and what the final agency action is here.

[00:26:24] Speaker 02:
Our reading of the letter is that it's a dismissal under 11.73E.

[00:26:29] Speaker 02:
It says in the very last sentence, we are dismissing your petition for rulemaking.

[00:26:33] Speaker 02:
I think council discusses the treatment of a different petition in a different way, which I think only underscores our point that FAA here was actually treating this as a sub-reaction and dismissing the petition, which would make this the final agency action.

[00:26:44] Speaker 02:
And then petitioners would have had 60 days from the dismissal in November to have challenged that timely.

[00:26:51] Speaker 01:
Do you know when the FAA does dismiss under what you assert to be 11.73 E?

[00:26:56] Speaker 02:
Yes.

[00:26:57] Speaker 01:
Do they always just say we are dismissing under 11.73 instead of adding E, which would have made this case pretty easy?

[00:27:03] Speaker 02:
I don't know.

[00:27:04] Speaker 02:
I haven't looked at.

[00:27:05] Speaker 02:
I've looked at sort of the categories of the things.

[00:27:07] Speaker 02:
I have not looked at the actual letters.

[00:27:09] Speaker 02:
that they send out.

[00:27:11] Speaker 02:
I don't know why they didn't say subsection E, that would have been helpful here.

[00:27:14] Speaker 02:
I think, but they do use the term dismiss, and then earlier, as your honor points out, they say we have determined the issue you have raised is not an, quote, immediate safety concern.

[00:27:22] Speaker 02:
That ties directly to 11.73E as well.

[00:27:25] Speaker 01:
But then, of course, the other side's absolutely right that the next two sentences couldn't be more squarely in the crosshairs of 11.73C.

[00:27:33] Speaker 02:
I think that is not a model of clarity.

[00:27:36] Speaker 02:
I think I can agree that it's not 100% unambiguous.

[00:27:39] Speaker 02:
But I think the important point to draw from that is even if petitioners were right, we don't think they are, about their confusion over 11.73C, they decided to then go forward in the rulemaking process.

[00:27:52] Speaker 02:
They would need to wait until that rulemaking process is complete.

[00:27:55] Speaker 02:
So they made the decision, as I think they were quite honest, they made the decision to wait to see what the rulemaking would do.

[00:28:01] Speaker 02:
They just need to wait till the final rule is issued now.

[00:28:03] Speaker 02:
So under FAA's reading of the letter, they were untimely.

[00:28:07] Speaker 02:
They were too late.

[00:28:08] Speaker 02:
But under their view of the rule, I think they're too early, because FAA has not had the opportunity to respond to their comments, the thousands of other comments that FAA has received on both sides of the issue, which FAA, as we stated in our brief, intends to do in the final rule, as they must under the APA.

[00:28:23] Speaker 02:
And that final rule is anticipated

[00:28:25] Speaker 02:
to be through FIA in just a few more months, and hopefully we'll quickly go through OMB as well.

[00:28:32] Speaker 02:
Petitioners, I think, at this point just need to wait, and then they can challenge within 60 days, assuming they can show standing, the final rule where FAA will have fully addressed their comments and all of the other comments they received on privacy issues, and then, of course, the host of other issues.

[00:28:46] Speaker 01:
I mean, there's a third alternative, which may not be the alternative that Epic would like, but the third alternative conceivably, I think, would be that it is a dismissal, but there was reasonable grounds under the statute.

[00:29:01] Speaker 02:
I don't think there are reasonable grounds for the reasons that I stated, which are that if they're not saying we were just very confused, they're saying we actually thought it was 11.73C.

[00:29:10] Speaker 02:
And if they're right about that, and that's why this case is different from safe extensions, if they're right about that, then they need to wait till the end of the rulemaking.

[00:29:19] Speaker 02:
I don't think there's grounds for delay in the same way there was in safe extensions, where those petitioners were actually going to be barred from raising the issues

[00:29:27] Speaker 02:
unless the order were enforced against them down the road, but they were out of time.

[00:29:32] Speaker 02:
Here, they just need to wait until we have a final agency order in the form of that rulemaking.

[00:29:37] Speaker 02:
I can move on to sort of the merits, just to respond to a few points.

[00:29:47] Speaker 02:
There is no place

[00:29:49] Speaker 02:
in this joint appendix or in the record where FAA committed to engage in a rulemaking.

[00:29:54] Speaker 02:
All the sites are statements by the FAA that privacy considerations are important, that they will work collaboratively with other agencies, and indeed they are based on the presidential direction.

[00:30:03] Speaker 02:
So I think it's just a misreading of the record to argue that FAA was at any point committed itself to engaging in a rulemaking.

[00:30:10] Speaker 02:
I think it's equally wrong to argue that the Modernization Act compelled FAA to engage in a privacy rulemaking

[00:30:16] Speaker 02:
You will look in vain to find the word privacy in the unmanned aircraft section.

[00:30:21] Speaker 02:
Congress provided the FAA with discrete requirements for that comprehensive plan.

[00:30:27] Speaker 02:
None of those mentioned privacy.

[00:30:30] Speaker 02:
And then the comprehensive plan is Congress ordered that the recommendations of that plan be implemented in a rulemaking.

[00:30:36] Speaker 02:
And again, as I stated before, there's no recommendation in that plan that FAA will engage

[00:30:40] Speaker 02:
in rulemaking to address privacy with unmanned aircraft.

[00:30:43] Speaker 02:
FAA has never regulated camera recording equipment on manned aircraft, and has chosen not to do so here.

[00:30:54] Speaker 04:
Well, FAA has done some things about recording equipment on public aircraft.

[00:31:00] Speaker 04:
But let me just ask you, what is the rulemaking that you're saying they ought to wait for?

[00:31:06] Speaker 04:
if you're not addressing privacy in a rulemaking.

[00:31:09] Speaker 02:
Well, the proposed notice of rulemaking stated that the privacy was beyond the scope, but the FAA did receive comments from petitioners and others on privacy saying it should be.

[00:31:19] Speaker 04:
I know, but I just want to be clear here.

[00:31:23] Speaker 04:
You want them to wait a couple of months until a rulemaking comes out that doesn't have anything to do with privacy, and then they could

[00:31:33] Speaker 04:
file another petition saying you should have addressed privacy.

[00:31:38] Speaker 02:
Well, I think that's right, Your Honor, and that's because that Notice of Proposed Rulemaking is not a final agency action.

[00:31:42] Speaker 04:
No, I understand that.

[00:31:43] Speaker 04:
But if you've already said in the Notice of Proposed Rulemaking, privacy is not part of our mission here in this rulemaking.

[00:31:53] Speaker 02:
Right.

[00:31:53] Speaker 04:
Logical outgrowth, you're going to discuss privacy in the final rule?

[00:31:57] Speaker 02:
Petitioners could come into this court frequently and say, based on a proposed rule, I can tell you're not going to do X. No, I'm not talking about coming into court on a notice of proposed rulemaking.

[00:32:10] Speaker 04:
You move fast, but as I understand your argument, you said they ought to wait a couple of months when FAA has completed its rulemaking.

[00:32:20] Speaker 04:
That's correct, yeah.

[00:32:22] Speaker 04:
But its rulemaking

[00:32:24] Speaker 04:
in moving ahead, FAA has at least signaled so far that it's not going to deal with privacy.

[00:32:30] Speaker 02:
And I think in that way, it's not different from any other things the agencies say in notices of proposed rulemaking that do not become final.

[00:32:36] Speaker 02:
So under 49 U.S.C.

[00:32:38] Speaker 04:
So I would like the agency to address point one in a statute.

[00:32:44] Speaker 04:
And the agency says, we're not going to address point one.

[00:32:48] Speaker 04:
It puts out a notice of proposed rulemaking saying, we're not going to address point one.

[00:32:54] Speaker 04:
Yet, in order to come to this court, you're saying they ought to wait until that final rulemaking that does not address point one, then come to this court and say the agency should have addressed rule point one.

[00:33:08] Speaker 02:
Yeah, I think that is our argument, Your Honor.

[00:33:10] Speaker 02:
I mean, agencies can promulgate supplemental notices of proposed rulemaking.

[00:33:15] Speaker 02:
Agencies do that frequently.

[00:33:16] Speaker 04:
So the only thing they could do would be to seek mandamus?

[00:33:19] Speaker 02:
Well, I don't think they would be successful, obviously.

[00:33:21] Speaker 02:
That's an issue.

[00:33:22] Speaker 04:
That's a different question.

[00:33:23] Speaker 04:
I'm just trying to understand.

[00:33:24] Speaker 04:
If the statute says the agency is supposed to do one, the agency is not doing it, it says it.

[00:33:30] Speaker 02:
They could bring a mandamus suit.

[00:33:31] Speaker 02:
They could bring an action for agency action unlawfully withheld.

[00:33:36] Speaker 02:
They haven't done that here.

[00:33:36] Speaker 02:
And again, I want to be clear.

[00:33:37] Speaker 02:
I don't think they could succeed on either of those.

[00:33:39] Speaker 02:
No, no.

[00:33:40] Speaker 04:
I just wanted to understand what their other options are.

[00:33:42] Speaker 04:
Other than waiting for rulemaking, it's not going to address the issue they think the statute requires the agency to issue.

[00:33:47] Speaker 04:
Okay, I get your point.

[00:33:50] Speaker 02:
Under 49 U.S.C.

[00:33:51] Speaker 02:
section 46-110, there has to be a final order, which is the consummation of the agency's decision-making in order to have legal effect.

[00:33:56] Speaker 02:
I think we're clear on all that.

[00:33:58] Speaker 04:
I just wanted to understand what you thought was the rationale for waiting two months.

[00:34:04] Speaker 02:
And I wanted to make the legal effect point, though, because it doesn't have legal effect yet, because it's part of a notice of proposed rulemaking.

[00:34:17] Speaker 02:
I'd be happy to answer any further questions.

[00:34:19] Speaker 02:
I didn't have any.

[00:34:21] Speaker 03:
All right.

[00:34:21] Speaker 02:
Thank you.

[00:34:21] Speaker 02:
Thank you.

[00:34:23] Speaker 03:
Does Mr. Rotenberg have any time?

[00:34:26] Speaker 03:
None.

[00:34:27] Speaker 03:
All right.

[00:34:27] Speaker 03:
Why don't you take a minute?

[00:34:31] Speaker 05:
Thank you.

[00:34:32] Speaker 05:
I wanted to make just three brief points.

[00:34:35] Speaker 05:
First of all, on the standing issue, this was not contested in the briefing.

[00:34:40] Speaker 05:
We relied on Havens Realty and Abigail Alliance.

[00:34:43] Speaker 05:
If this were to be an issue, we could have introduced affidavits in support of associational standing in addition to organizational standing.

[00:34:50] Speaker 05:
We didn't

[00:34:51] Speaker 05:
I think it was necessary, and it doesn't appear that the government is arguing this point, at least not as a basis to move forward.

[00:35:00] Speaker 05:
But the second point, which is quite critical, actually, is addressed in the EPIC reply brief.

[00:35:08] Speaker 05:
And this is that EPIC is not challenging the NPRM as the final order.

[00:35:13] Speaker 05:
We are challenging the text in the NPRM

[00:35:17] Speaker 05:
that effectively overturns the agency's earlier determination to undertake the rule on privacy.

[00:35:24] Speaker 05:
So there's no need for us to wait for the NPRM process to be completed.

[00:35:28] Speaker 05:
All we needed from the issuance of the proposed rule was the indication from the agency that it was not planning to do what we asked it to do.

[00:35:37] Speaker 05:
And finally, to be clear on this most important point,

[00:35:40] Speaker 05:
It's not the discretion with the agency whether to undertake a rulemaking on drones.

[00:35:46] Speaker 05:
That's what Congress mandated when it passed the Act in 2012.

[00:35:50] Speaker 05:
The issue that's in dispute is what should the scope of that rulemaking be?

[00:35:56] Speaker 05:
And we believe we've made a very good argument, and it reflects the Congressional intent.

[00:36:01] Speaker 05:
The word comprehensive, by the way, appears only six times in that entire Act.

[00:36:05] Speaker 05:
It runs 140 pages.

[00:36:08] Speaker 05:
And it says, at a minimum, the agency should consider these issues.

[00:36:12] Speaker 05:
So that, we believe, is the reason that the agency should undertake the privacy rulemaking.

[00:36:17] Speaker 00:
All right.

[00:36:18] Speaker 05:
Thank you.

[00:36:20] Speaker ?:
Thank you.