[00:00:00] Speaker 01:
Case number 20-1406, Wing Let Technology LLC petitioner versus Federal Aviation Administration.

[00:00:07] Speaker 01:
Mr. Schulte for the petitioner, Ms.

[00:00:09] Speaker 01:
Neumeister for the respondent.

[00:00:12] Speaker 04:
Good morning, Council.

[00:00:14] Speaker 04:
Good morning, Your Honor.

[00:00:15] Speaker 04:
Mr. Schulte, when you're ready, please proceed.

[00:00:17] Speaker 00:
Thank you, Your Honor.

[00:00:18] Speaker 00:
Again, my name is Robert Schulte.

[00:00:19] Speaker 00:
I'm counsel for Wing Let Technologies LLC, the petitioner's matter.

[00:00:24] Speaker 00:
Let me begin by saying what the petitioner is not seeking here, Your Honors.

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The petitioner is not asking this court to run the FAA.

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The petitioner is not asking the court to interfere with the FAA's congressional mandate to determine how best to allocate its resources to carry out that mandate.

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We're not asking anything of the sort.

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We fully concede that the FAA has enormous discretion in the matter in which it carries out its important function of ensuring air efficiency and air safety.

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But what we are asking for in this case is for the court to rescind the June 25, 2020 memorandum

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which is placed in the STC file in this particular application process and to remand the entire application process back to the Wichita Aircraft Certification Office or ACO.

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Now, I realize, of course, the court is probably thinking to itself, haven't you just contradicted yourself?

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And the answer is no, and here's why.

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The entire basis

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for sending this application process out to New York Aircraft Certification Office was a fiction.

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It was a fabrication.

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And that's the polite way of putting it.

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When an agency takes an action, as it has here, based on a fabrication, especially a fabrication of this type, and we'll come to that in a moment,

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then that action should find no refuge in this court.

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That action should find no refuge under the so-called discretionary function of the agency's defenses.

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The fact of the matter is, the Federal Aviation Administration in this case took this application process, the supplemental types certification process, and sent it to a foreign office 1,500 miles away based on something that was patently untrue.

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What was untrue?

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The fact that my client, WingLight Technologies LLC and Mr. Kaiser in particular, was a quote, threat to FAA employees and quote, a threat to air safety.

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Now, why are we so honed in on that?

[00:02:42] Speaker 03:
Mr. Schulte, I'm sorry, I didn't realize you would be so long dwelling on the facts of the case with which we're familiar.

[00:02:52] Speaker 03:
Okay.

[00:02:52] Speaker 03:
I really think the starting point here needs to be your standing.

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Where is the injury that has been experienced or is imminent?

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Any cognizable injury that is?

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Of course, Your Honor.

[00:03:04] Speaker 00:
Thank you for that question.

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Your Honor is referring, of course, to Article 3 standing.

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Certainly, under the various case laws cited in the briefs, the the company, Winnlick Technologies, is the object of the FAA order.

[00:03:18] Speaker 03:
Winnlick Technologies is dealing with the harm aspect here, the harm aspect of Article 3 standing.

[00:03:25] Speaker 00:
Sure.

[00:03:26] Speaker 00:
The injury in question, Your Honor, is the injury to the reputation of the company itself.

[00:03:31] Speaker 03:
Well, under the precedence, you know, publication doesn't occur with an intra-governmental communication.

[00:03:39] Speaker 03:
So that can't constitute reputational harm.

[00:03:43] Speaker 00:
That's not merely intergovernmental communication, Your Honor.

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That is a memorandum that will be published in the STC file, and that is very much accessible to the public, number one.

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But number two, the- It has not been published.

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It may be yet published, but your harm has not occurred.

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That harm, I should say.

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But as far as the STC process, Your Honor, that will happen.

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And this court certainly has the power to enjoin that from happening.

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But putting that aside, we also have the issue

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of the actual cost and expense involved in the removal of the STC application from the Wichita ACO out to New York ACCO.

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And the record is replete, and there's numerous emails in the briefs where Mr. Kaiser has documented and will articulate the harm that's going to ensue if, in fact, it is not returned to the Wichita ACO.

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And bear in mind, too.

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Do you have any case in which

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Any alteration on government procedures resulted in your in standing, supported standing?

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Not that we have found your honor.

[00:04:47] Speaker 02:
Right.

[00:04:48] Speaker 02:
Can I clarify something?

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You said you'd like this decision to transfer to the New York office to be invalidated by us and sent back to the Wichita office.

[00:05:01] Speaker 02:
Do you want it sent back to the same people?

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In the office or would it go to, because there was awful lot of complaints about the people with which the company was dealing, or is your, or is the relief you seek to be sent back to the office but to different people structure specialist be brought in.

[00:05:22] Speaker 00:
We would prefer that if you sent back to which saw a CEO and different individuals brought in.

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We do not dispute that there is bad blood between Mr Kaiser and a number of people down there.

[00:05:33] Speaker 02:
I'm sorry, I just want to clarify your, your word here you prefer is this.

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Do you ask us to send it back to different people or we just your only relief from us is overturning of that order, which in your view would return it to the Wichita office, the rescinding of the order would have.

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a couple of effects.

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Number one, it would delete from the file what we perceive to be rather harmful, libelous, slanderous statements you can't miss.

[00:06:04] Speaker 02:
How would you delete from the file?

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I don't understand.

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We don't erase agency files.

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Your petition for review just asked that the reconsideration order be overturned, not that we clean out files.

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The files will still be what they'll be.

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And much of it would be reproduced

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I may have been an oracle in my statement.

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Yes, we refer that the order be rescinded.

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Obviously, that would be in the file as such.

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That being said, yes, we'd like it sent back to the Wichita ACO and indeed have different people assigned, which is eminently possible.

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Are you suggesting, I'm sorry, is it that you want us to say new people should be assigned or all you ask from us is that the order be held invalid?

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and then you'll hope for different people.

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You don't want us to say that you should get new people.

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We want you to invalidate the order and have the application file sent back to Wichita ACO.

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We certainly concede that the FAA has the discretion to decide who is going to be on that application.

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If it were sent back,

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And they said, the people in Wichita said, well, you've already spent more than a year in New York.

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And so for efficiency sake, they don't repeat the same reason they did before.

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They just said for efficiency sake.

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And because New York has a structure specialist, which you've asked for all along, we're returning it to New York for those reasons.

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You would have no challenge to that.

[00:07:41] Speaker 00:
Well, Your Honor, I would say this is that the two events are inductively twined.

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I suppose, Your Honor could could say that yes, the FAA has the discretion to reassign the application to the New York ACO in a vacuum, but we're not in a vacuum.

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What happened in this case happened in this case.

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the folks at the Wichita ACO said some things that were demonstrably false.

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We know they were demonstrably false because the FAA conceded after the fact that they were demonstrably false.

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The things that the FAA said in those memorandums were very harmful to my client, both reputationally and otherwise.

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I understand that.

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I do understand.

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I hear your point on that.

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You've articulated it quite well.

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But when we review agency actions, if we were to find reasoning provided to be

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arbitrary and precretious, all we do is we send it back to the agency to take another stab at providing reasoned rationale for the transfer.

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And so there's nothing we would do, and I'm sure you're not asking us to do anything that would prevent them from sending it right back to New York, for example, for the reasons I articulated.

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And indeed, if they have good reason, that may not be a substantive challenge, but that's for another day, Your Honor.

[00:09:03] Speaker 00:
Today, we're here about what actually happened in this case.

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And what happened in this case was my client was slammered and aligned, and indeed, he was shot off to New York for no good reason.

[00:09:12] Speaker 02:
Did you raise that reputational harm in your opening brief?

[00:09:16] Speaker 00:
Yes.

[00:09:17] Speaker 02:
Where in your opening brief is it?

[00:09:18] Speaker 00:
Standby.

[00:09:20] Speaker 03:
So, Shelsey, what evidence is there in the record that there is anyone else in Omaha that could handle this?

[00:09:26] Speaker 00:
Forgive me, Your Honor.

[00:09:27] Speaker 00:
I think you mean Wichita.

[00:09:29] Speaker 03:
I'm sorry, Wichita.

[00:09:31] Speaker 00:
We're not sure of that, but certainly the FAA has significant resource to assign personnel from other branches.

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And bear in mind, too, Your Honor, under FAA guidance, they can certainly assign somebody from another branch, for example, a structural specialist from New York ACO to Wichita rather than moving the entire project out to New York.

[00:09:49] Speaker 03:
And you want us to tell them to do that?

[00:09:51] Speaker 00:
I want you to send the case back to Wichita so they have the opportunity to consider doing that.

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I don't believe it's within the court's purview to order the FAA to assign anybody to a particular project.

[00:10:05] Speaker 02:
You mentioned earlier costs that were associated with the transfer to New York.

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Did you submit any affidavit or declaration documenting those costs?

[00:10:17] Speaker 00:
Other than the emails from Mr. Kaiser himself, no, Your Honor.

[00:10:22] Speaker 02:
And those said what costs specifically?

[00:10:25] Speaker 00:
Well, the simple movement of personnel back and forth between Wichita and New York.

[00:10:29] Speaker 02:
Well, that's not happening in the COVID era, I shouldn't think.

[00:10:33] Speaker 00:
Well, it's going to have to happen, Your Honor, because FAA guidance specifically calls for face-to-face meetings during the SEC certification process.

[00:10:40] Speaker 02:
But have those been happening?

[00:10:42] Speaker 00:
No.

[00:10:42] Speaker 02:
I assume there's been an adjustment to that process for the pandemic.

[00:10:46] Speaker 00:
To some degree, yes.

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But with respect to what's happening in New York, they've already gone through three program managers, and the project is effectively stalled there.

[00:10:54] Speaker 02:
And that's, can you tell me what, so you have no declaration that shows any actual costs incurred as a result of this transfer to this point.

[00:11:02] Speaker 02:
I understand your point that it could happen in the future, but nothing at this point.

[00:11:06] Speaker 00:
There's no declarations per se, but again the FAA even in its own brief refers to these emails and adopts them as part of its argument as well.

[00:11:14] Speaker 02:
OK, and then at this point, you say it's largely stall, but I'm assuming that meetings have remained virtual and not in person.

[00:11:25] Speaker 00:
To the best of my knowledge, yes, ma'am.

[00:11:26] Speaker 02:
Have they given you any indication that in the foreseeable future, they're going to return to in-person meetings?

[00:11:33] Speaker 00:
Not that I'm aware of, Your Honor.

[00:11:35] Speaker 02:
Are you aware of them requiring in-person meetings when, for example, the head of the company is unable to travel?

[00:11:43] Speaker 02:
Or do they do accommodations under the Americans with Disabilities Act?

[00:11:50] Speaker 00:
I'm not aware of that, Your Honor.

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All I can tell you is, and again, this is cited in our brief, that the FA's own guidance requires face-to-face meetings for certain portions of the STC process.

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To suggest that face-to-face meetings can never happen or won't happen is inconsistent with their own guidance.

[00:12:07] Speaker 04:
Can I ask you one question, and then

[00:12:10] Speaker 04:
we'll give you a little bit of time for rebuttal.

[00:12:12] Speaker 04:
The issue of finality, we haven't talked about that yet this morning, but I just want to clarify a couple of things.

[00:12:18] Speaker 04:
First, you don't take issue with the notion that the normal APA finality principles apply here.

[00:12:24] Speaker 04:
I know you think it's final, the order that you want resented is final, but you don't take issue with either the applicability of those normal APA principles of finality or the notion that finality is an issue that we can properly address at this stage as to which you would have to prevail.

[00:12:41] Speaker 00:
I believe the court, I believe it's incumbent upon the court to address that issue.

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I believe the order is final for several reasons, not the least of which is because the FAA said it was.

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But more importantly, there is no other avenue to address this issue.

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There is no other procedure.

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There's no venue that my client can go to to have this issue aired.

[00:13:01] Speaker 00:
There's nothing beyond this.

[00:13:02] Speaker 00:
Now the administrator says in its brief that the certification process is not yet over but even when it's over the end result of that either there's an STC issue or not, but it does not deal with things that occur within the process itself.

[00:13:16] Speaker 04:
That's going to be often I'll just ask one last question and then we'll give the government, government a chance.

[00:13:22] Speaker 04:
That's going to be true a lot of times when you have interlocutory orders.

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There's going to be things in an interlocutory order that are necessarily non-final.

[00:13:29] Speaker 04:
There may not be any opportunity to address the issue in an interlocutory order, even if it's wrong.

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But if it's non-final, there's nothing anybody can do about it, especially if the party that would complain about it ends up prevailing at the end of the day anyway.

[00:13:42] Speaker 04:
That's just part of the deal.

[00:13:45] Speaker 00:
Yeah.

[00:13:45] Speaker 00:
Again, Your Honor, I would respectfully disagree to the extent that this is an interlocutory order.

[00:13:49] Speaker 00:
It's not.

[00:13:49] Speaker 00:
It has profound legal consequences for my client.

[00:13:52] Speaker 04:
Okay, understood.

[00:13:53] Speaker 04:
Thank you.

[00:13:54] Speaker 04:
Unless my colleagues have any further questions for you, Mr Schulte, at this point, maybe we'll hear from the government.

[00:14:00] Speaker 04:
Thank you.

[00:14:00] Speaker 04:
We'll give you a bit of time for rebuttal.

[00:14:02] Speaker 01:
Thank you, Your Honor.

[00:14:05] Speaker 01:
May it please the court, McKee Newmeister, on behalf of the government.

[00:14:08] Speaker 01:
As our brief explains, there are three independent threshold grounds for dismissing this petition for review, and I'm happy to answer any questions that the court may have.

[00:14:22] Speaker 03:
Well, I guess the question is, in your view, which is logically first for the court to address?

[00:14:32] Speaker 01:
Well, Your Honor, I think that the court has the ability to address any of the three threshold grounds.

[00:14:38] Speaker 03:
I agree, which is the most logical for us to begin with.

[00:14:43] Speaker 01:
I think because the court can address any, I think it doesn't necessarily have to start in any one place.

[00:14:50] Speaker 01:
I think that the court could start with standing or the court.

[00:14:53] Speaker 03:
Would that not be the usual place to start?

[00:14:56] Speaker 01:
It is the usual place, Your Honor, to establish court's jurisdiction if it's going to be.

[00:15:01] Speaker 03:
We don't do that.

[00:15:02] Speaker 03:
I mean, standing will make absolutely no law, right?

[00:15:06] Speaker 01:
That's correct, Your Honor.

[00:15:07] Speaker 03:
And if we say that a certain type of order is not final,

[00:15:14] Speaker 03:
or is committed by law agency discretion.

[00:15:18] Speaker 03:
It seems to me we are resolving a legal issue.

[00:15:23] Speaker 01:
I disagree that the court has to make law to conclude that this case does not involve a final order, Your Honor.

[00:15:30] Speaker 01:
I think it's squarely within the court's precedence, particularly the American trained dispatchers, the ICC case, which said that where there's a procedural ruling that just directs a party to proceed before an agency in one way rather than another, that that is not a final order.

[00:15:45] Speaker 03:
Remind me, was there a standing issue in that case?

[00:15:49] Speaker 01:
I don't believe the court addressed standing in that case, Your Honor.

[00:15:52] Speaker 03:
But in any event, said it was not a final order.

[00:15:55] Speaker 01:
Said it was not a final order.

[00:15:56] Speaker 01:
And because these are threshold issues, the court's already recognized finality in this context is at least a threshold issue that the court can resolve before it addresses jurisdiction.

[00:16:06] Speaker 03:
That's more clearly finality and possibly committed to agency discretion.

[00:16:12] Speaker 03:
I think they probably qualify as

[00:16:21] Speaker 03:
non merits threshold determinations.

[00:16:25] Speaker 01:
Yes, your honor.

[00:16:26] Speaker 03:
And the court to make more law or less law on these thresholds.

[00:16:31] Speaker 01:
That's that's true your honor and I'll just point out the court and the flight now case already characterized finality in the context of an FAA order as something that is is at least a non merits non jurisdictional issue.

[00:16:44] Speaker 01:
And so, because of that it's clear that the court can reach finality first here and we think it's squarely within.

[00:16:51] Speaker 01:
the court's precedence to say that this is a procedural ruling, an interim ruling in the course of an ongoing adjudication that doesn't determine any rights or obligations or legal consequences, and therefore that this is a non-final order.

[00:17:05] Speaker 02:
Well, in fact, we specifically so held in Enrique Aiken County that finality can be decided

[00:17:12] Speaker 02:
before jurisdictional questions, whether an agency decision is subject to judicial review as a paradigmatic threshold question, correct?

[00:17:19] Speaker 02:
So our circuit precedent answers this question.

[00:17:23] Speaker 02:
Right now, it wasn't actually a holding, but it was.

[00:17:26] Speaker 02:
And so that is our precedent.

[00:17:29] Speaker 01:
Thank you.

[00:17:30] Speaker 01:
Yes, I think it's clear that this is the kind of issue that can be addressed before the court addresses the issue of standing and that that would provide a clear ground for this court to dismiss the petition for review.

[00:17:41] Speaker 02:
Can you clarify for me what the FAA is doing under pandemic conditions?

[00:17:46] Speaker 02:
Are they requiring or have they suspended their rules about in-person meetings?

[00:17:52] Speaker 01:
My understanding, Your Honor, is that the FAA is not holding in-person meetings because of the pandemic, that meetings are being conducted remotely because of the pandemic.

[00:18:03] Speaker 01:
And is there any end date to that plan at this point?

[00:18:08] Speaker 01:
I'm not aware of any end date and what the status of that plan is.

[00:18:14] Speaker 02:
Do you have a view on their claim of reputational injury?

[00:18:20] Speaker 02:
Is that right?

[00:18:21] Speaker 02:
And I may have missed it, and I'm sure he'll correct me about that.

[00:18:24] Speaker 02:
But I didn't see it in the opening brief.

[00:18:25] Speaker 02:
I saw it clearly in the reply brief.

[00:18:27] Speaker 02:
But you obviously didn't have a chance to address.

[00:18:31] Speaker 02:
So would you like to address now the claims of their reputational injury and why that?

[00:18:37] Speaker 02:
why in your view that does or does not establish standing?

[00:18:40] Speaker 01:
Yes, Your Honor.

[00:18:41] Speaker 01:
We agree that this argument doesn't appear in the opening brief and it has less been forfeited.

[00:18:46] Speaker 01:
But addressing it on the merits, for the reason that came up, I believe, in opposing counsel's colloquy with Judge Ginsburg, to the extent that they are claiming reputational injury akin to a defamation injury,

[00:19:02] Speaker 01:
that's simply not something they can claim without showing that there has been publication, that this information has been shared with other individuals.

[00:19:12] Speaker 02:
I'm not so sure about that.

[00:19:14] Speaker 02:
If someone claims reputationally, their livelihood depends upon operation within a massive federal agency.

[00:19:22] Speaker 02:
And someone starts circulating in written form, memo form, hypothetically here, very scurrilous, damaging.

[00:19:33] Speaker 02:
And shall we say, again, this is hypothetical, something that was sort of libelous, per se, and circulates it around so that no one will ever want to do business with them again.

[00:19:46] Speaker 02:
I'm not sure that that would count as sufficient publication.

[00:19:51] Speaker 02:
because it's quite different from Trans-Union because Trans-Union wasn't making substantive decisions from the Supreme Court.

[00:19:56] Speaker 02:
Trans-Union wasn't making substantive decisions.

[00:19:59] Speaker 02:
This is communication of information and their theory that their theory is libelous slander has caused reputational harm within the very entity on which their livelihood depends.

[00:20:12] Speaker 02:
So I don't know that publication is your best place.

[00:20:17] Speaker 02:
Tell me I'm wrong.

[00:20:17] Speaker 02:
I'm not sure if that's the word you want to fall on.

[00:20:20] Speaker 01:
I think that, you know, it's a little unclear from the reply brief, but I think you could read them to be alleging two kinds of reputational harm.

[00:20:26] Speaker 01:
One is harm to their standing in the industry, which I think would require publication in order to show that under trans union and also this court's decision and owner operator supports that as well.

[00:20:40] Speaker 01:
To the extent they're claiming harm to their reputation purely within the FAA, I think your honor,

[00:20:46] Speaker 01:
has a point that it feels a little bit different than what's going on in those cases.

[00:20:51] Speaker 01:
But still, in order to demonstrate standing, they have to show a concrete harm based on the statements that they're challenging.

[00:20:59] Speaker 01:
And they simply haven't pointed to any evidence in the record demonstrating that there is a harm to their relationship with specific employees and that they can show that they're going to suffer a direct

[00:21:11] Speaker 01:
concrete, palpable harm as a result of these statements appearing in this letter.

[00:21:18] Speaker 02:
But ultimately... Is this memo subject to FOIA?

[00:21:24] Speaker 01:
I'm not certain, Your Honor, whether or not this particular information would... These are not public records?

[00:21:32] Speaker 01:
I think as a public record in this file, it would be subject to FOIA whether or not there's any kind of exception that applies, I'm not certain.

[00:21:42] Speaker 01:
I don't know off the top of my head, Your Honor, but ultimately, this all goes to standing and sort of

[00:21:53] Speaker 01:
The court really doesn't have to address these questions at all because it's very clear that this is not a final order because it's simply an interim procedural rule.

[00:22:02] Speaker 04:
Can I just ask one question about the reputational, the assertion of reputational injury in the opening brief.

[00:22:08] Speaker 04:
So on page 25 in the paragraph that's addressed the standing, there's a sentence that says, with Wangle technology has substantial interest in the FAAs.

[00:22:17] Speaker 04:
This is the opening brief, sorry.

[00:22:19] Speaker 04:
Wingwood Technology has a substantial interest in the FAA's final order, given that it denies a request to rescind baseless and defamatory allegations concerning the health and safety of FAA employees.

[00:22:31] Speaker 04:
That doesn't specifically talk about a reputational injury or refer to Mr. Kaiser in particular, but what else would it be referring to?

[00:22:38] Speaker 04:
What do you think when you read that statement?

[00:22:41] Speaker 01:
Your honor, I take that statement to to sort of be consistent with some things that they said in the record that they they don't like some of the statements that were made in the June 25 letter that they're not happy with some of the reasons that the FAA gave for.

[00:22:57] Speaker 01:
undertaking the transfer, but simply calling statements defamatory isn't sufficient to carry their burden of demonstrating a substantial probability of harm for purposes of Article III.

[00:23:10] Speaker 04:
I think you may well be right that there's a problem in terms of the evidentiary substantiation and proof.

[00:23:16] Speaker 04:
I'm just talking about the airing of the theory to begin with.

[00:23:21] Speaker 04:
If someone says, I've been defamed,

[00:23:24] Speaker 04:
just, I don't know how to construe that other than to say that I'm worried about the harm to my reputation.

[00:23:30] Speaker 04:
But maybe I'm wrong about that.

[00:23:31] Speaker 04:
Maybe there's something else that's connoted by the statement that there was baseless and defamatory allegations.

[00:23:37] Speaker 04:
Maybe they're baseless and defamatory in some other way.

[00:23:39] Speaker 04:
But I guess I'm just wondering, does the government have a way to construe that language that doesn't at least

[00:23:48] Speaker 04:
flag the prospect of reputational injury, independently of whether that was sufficiently substantiated.

[00:23:56] Speaker 04:
But in terms of just airing the theory, or is there some other way to read that?

[00:24:02] Speaker 01:
I can't think of anything, Your Honor, but I think just to say that something is defamatory.

[00:24:08] Speaker 01:
I see my time is up, sorry.

[00:24:10] Speaker 01:
Just to sort of use the term colloquially to describe a statement as defamatory isn't the same as claiming that you have sustained a concrete harm for purposes of Article 3 standing based on the statement.

[00:24:27] Speaker 01:
to call something defamatory or slanderous or baseless is a way to characterize an action that you don't like.

[00:24:35] Speaker 01:
But it doesn't demonstrate that you're saying that you have actually been defamed in a legal sense for purposes of tort law.

[00:24:41] Speaker 01:
It doesn't demonstrate that you're saying that you have sustained an Article III injury, which is not defamation.

[00:24:47] Speaker 01:
The Article III injury here is something else like reputational harm or financial harm as a result of statements.

[00:24:53] Speaker 01:
And so I think it's simply not clear that that

[00:24:57] Speaker 01:
that characterization of statements in a letter is enough to bring in the entire panoply of arguments about why something satisfies Article 3.

[00:25:07] Speaker 03:
It's an assertion, it's not an argument.

[00:25:12] Speaker 01:
Yes, Your Honor.

[00:25:14] Speaker 03:
We don't treat assertions without an argument as though they were really arguments.

[00:25:20] Speaker 01:
Correct, Your Honor.

[00:25:21] Speaker 01:
It's a bare assertion that doesn't contain any argument to demonstrate why it's assertion about certain facts is in fact correct and sufficient under the court's legal standards.

[00:25:31] Speaker 01:
But ultimately the court doesn't need to reach any of these questions about standing because it can resolve this case on finality grounds.

[00:25:39] Speaker 02:
I apologize.

[00:25:40] Speaker 02:
Can I just ask one more quick question on the 2020 Aircraft Certification Safety Act, which

[00:25:47] Speaker 02:
order sort of a new procedure for dealing with disputes about the certification process.

[00:25:54] Speaker 02:
Is that dispute resolution process set up yet with an FAA?

[00:25:57] Speaker 02:
Do you think it doesn't apply to pending proceedings?

[00:26:00] Speaker 02:
It's only prospective?

[00:26:01] Speaker 02:
It's not clear from the statute to me.

[00:26:03] Speaker 02:
And so I wasn't clear why that was just mentioned in the pass on by.

[00:26:08] Speaker 02:
I just want to make sure you don't have a process in place for it right now.

[00:26:12] Speaker 01:
That's correct, Your Honor.

[00:26:13] Speaker 01:
The FAA is working on setting up the process in response to the Act.

[00:26:17] Speaker 01:
It hasn't yet established the new process, and so I don't want to get out ahead of the agency with respect to how it understands the process is going to work and how it's going to apply.

[00:26:27] Speaker 02:
It does not apply to this case in the FAA's view.

[00:26:34] Speaker 01:
I'm not certain going forward with the position we would take on that, Your Honor.

[00:26:39] Speaker 01:
It's certainly not- Maybe narrow-minded and say this appeal, this case.

[00:26:42] Speaker 01:
It's certainly not in effect yet, Your Honor, and so there's no order in setting up this process that's not currently applied.

[00:26:51] Speaker 02:
Okay, thank you.

[00:26:53] Speaker 04:
Unless my colleagues have further questions for you, we'll go to Mr. Schulte for rebuttal.

[00:26:57] Speaker 04:
Thank you, Ms.

[00:26:58] Speaker 04:
Neumeister.

[00:26:59] Speaker 01:
Thank you, your honor.

[00:27:00] Speaker 04:
Mr. Schulte, I believe you wanted to reserve a minute and a half for rebuttal.

[00:27:04] Speaker 04:
We'll give you that time.

[00:27:06] Speaker 00:
A whopping one minute, 30 seconds.

[00:27:07] Speaker 00:
Thank you, your honor.

[00:27:09] Speaker 00:
Your honor, the petitioner well understands the court's concerns about standing.

[00:27:15] Speaker 00:
And certainly, those concerns are well taken.

[00:27:19] Speaker 00:
But the FAA does not seriously dispute the underlying gravamen of my client's case.

[00:27:28] Speaker 00:
Context is important here.

[00:27:31] Speaker 00:
The FAA's congressional mandate is to promote air safety and commerce.

[00:27:36] Speaker 00:
My client and his company has spent 40 years in that business.

[00:27:40] Speaker 00:
That's all they know.

[00:27:41] Speaker 00:
So when the FAA and its employees say that he is a threat to FAA employees, a physical threat, no less, and a threat to air safety, that is the scarlet letter of our industry.

[00:27:54] Speaker 00:
If you are unsafe, nobody wants anything to do with you.

[00:27:58] Speaker 00:
So to suggest, geez, we don't know what the harm is here is patently absurd in the context in which this is occurring.

[00:28:05] Speaker 00:
The harm is profound.

[00:28:08] Speaker 00:
And so we will only submit that there is no other remedy to deal with this situation.

[00:28:14] Speaker 00:
There is no other way for Mr. Kaiser to prove not only to the

[00:28:19] Speaker 00:
folks at the FAA, but the people that do business with the FAA, that he's not a threat to air safety, that he's not a threat to employees.

[00:28:26] Speaker 00:
And to counsel's earlier comment, this, you know, gee whiz, there's no identifiable harm vis-a-vis traditional port law, respectfully disagree.

[00:28:35] Speaker 00:
Threatening an employee in the performance of their official function is a federal crime.

[00:28:41] Speaker 00:
Mr. Kaiser has been effectively accused of committing a federal crime, and that is libelous per se under any measure of the law.

[00:28:48] Speaker 00:
So the harm is very real.

[00:28:50] Speaker 00:
So to suggest he has no Article III standing, I respectfully disagree with counsel.

[00:28:54] Speaker 02:
But unless the court has any questions on that.

[00:28:57] Speaker 02:
The memo, and I can't say the person's name.

[00:29:03] Speaker 02:
The memo to which you object.

[00:29:07] Speaker 00:
Yes, it's quarantine, Your Honor.

[00:29:09] Speaker 02:
That's my ignorance, I apologize.

[00:29:16] Speaker 02:
Was that included in the file of materials that were shared with the folks in the New York office?

[00:29:23] Speaker 00:
It's part of the STC file.

[00:29:26] Speaker 00:
I can't imagine that it would not be.

[00:29:29] Speaker 00:
And to your honor's point, that would be in the STC file and it would be subject to FOIA.

[00:29:35] Speaker 04:
Thank you, counsel.

[00:29:36] Speaker 04:
Thank you to both counsel.

[00:29:37] Speaker 04:
We'll take this case under submission.