UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

_________________________________________ ) ROBERT C. TAYLOR, ) ) Plaintiff, ) ) v. ) Case No. 18-cv-00035 (APM) ) FEDERAL AVIATION ) ADMINISTRATION, et al., ) ) Defendants. ) _________________________________________ )

MEMORANDUM OPINION AND ORDER

I. INTRODUCTION

Plaintiff Robert Taylor is a model aircraft enthusiast who owns multiple model planes and

flies them as a hobby and for recreational purposes. He brings this action on behalf of himself and

a putative class of all model aircraft owners who paid $5 to register their aircraft with the Federal

Aviation Administration (FAA) under a rule later struck down by the D.C. Circuit. Plaintiff claims

that the registration requirement violated the Privacy Act and the Little Tucker Act. He also

advances against the FAA a violation of his constitutional right of privacy, as well as the common

law tort of unjust enrichment. Plaintiff demands that the agency return the more than $4 million

it collected in registration fees and pay over $836 million in statutory penalties.

Defendant FAA now moves to dismiss, arguing that (1) Plaintiff lacks standing to sue,

(2) the D.C. Circuit has exclusive jurisdiction over this matter, and (3) the Complaint fails to state

a claim upon which relief can be granted. For the reasons stated herein, the court holds that, as

presently pleaded, Plaintiff lacks standing to bring this action. Defendant’s Motion to Dismiss is

therefore granted. II. BACKGROUND

A. Factual Background

The Federal Aviation Administration (FAA) is tasked with “promot[ing] safe flight of civil

aircraft in air commerce[.]”

. Invoking this authority, on December 16, 2015,

the FAA issued an interim final rule (the “Registration Rule”), requiring owners of small

unmanned aircraft, including model aircraft, to register their aircraft with the FAA “to facilitate

compliance with the statutory requirement that all aircraft register prior to operation.” 80 Fed.

Reg. at 78,594 (Registration Rule); see also Pl.’s Compl. and Demand for Jury Trial, ECF No. 1

[hereinafter Compl.], ¶ 7; Def.’s Mot. to Dismiss, ECF No. 23 [hereinafter Def.’s Mot.], at 4. The

Registration Rule required a registrant to supply her name, address, and email address.

See

(b). The registration was good for three years,

§48.11(c), and the fee to

register was $5, id. § 48.30(b).

On May 19, 2017, the D.C. Circuit struck down the Registration Rule insofar as it mandated

registration of model aircraft. Taylor v. Huerta,

(D.C. Cir. 2017). The Circuit’s

decision rested on Section 336(c) of the FAA Modernization and Reform Act, Pub. L. No. 112-

95,

(2012), which provides that the FAA “may not promulgate any rule or regulation

regarding a model aircraft” flown for recreational use and meeting certain additional criteria, see

Taylor, 856 F.3d at 1092–93. The Circuit succinctly explained why the Registration Rule as

applied to model aircraft could not stand:

In short, the 2012 FAA Modernization and Reform Act provides that the FAA “may not promulgate any rule or regulation regarding a model aircraft,” yet the FAA’s 2015 Registration Rule is a “rule or regulation regarding a model aircraft.” Statutory interpretation does not get much simpler. The Registration Rule is unlawful as applied to model aircraft.

2

. The Circuit rejected the FAA’s various arguments attempting to justify its exercise of

regulatory authority over model aircraft. See

at 1092–93.

Following the D.C. Circuit’s decision, the FAA ceased enforcing the Registration Rule and

took steps to enable model aircraft owners to undo their registrations. Compl. ¶ 16; Def.’s Mot. at

5–6. The FAA made available on its website a form, titled “Section 336 Aircraft Owner Request

to Delete Registration/Receive Refund,” which allowed registrants to seek a refund and ask that

their personal information be deleted. Compl. ¶ 16; Def.’s Mot. at 5–6; Def.’s Mot., Ex. 1, ECF

No. 23-2, Section 336 Aircraft Owner Request to Delete Registration/Receive Refund [hereinafter

“Refund Form”]. The Refund Form required owners to certify that they operated their model

aircraft in compliance with various statutory requirements and, if they sought a refund, to supply

bank account information. Compl. ¶ 16. Plaintiff did not submit a Refund Form.

The relief afforded model aircraft owners under Taylor was short lived. On December 12,

2017, the President signed into law the National Defense Authorization Act for Fiscal Year 2018,

(“NDAA”), which revived the Registration Rule. Section 1092(d) of the NDAA provides:

The rules adopted by the Administrator of the Federal Aviation Administration in the matter of registration and marking requirements for small unmanned aircraft (FAA-2015-7396; published on December 16, 2015) that were vacated by the United States Court of Appeals for the District of Columbia Circuit in Taylor v. Huerta (No. 15-1495; decided on May 19, 2017) shall be restored to effect on the date of enactment of this Act.

Stat. 1283 (2017). Thus, the NDAA granted the FAA the statutory

authority to require registration of model aircraft that the D.C. Circuit in Taylor held the FAA did

not possess.

With the Registration Rule reinstated, the FAA provided guidance to model aircraft

owners. As to owners who had registered their aircraft prior to Taylor, the FAA did not require

3 them to re-register, unless the owner had completed the refund/deletion process offered by the

agency. Def.’s Mot. at 6–7. 1 Additionally, the FAA made all pre-Taylor registrations effective

until December 12, 2020, thus treating those registrations as if having occurred on the date of the

NDAA’s enactment.

.

B. Procedural Background

Plaintiff brought the instant suit as a class action on January 5, 2018. See generally

Compl. 2 The crux of his Complaint is that the FAA lacked the statutory power to demand and

retain his personal information and the $5 registration fee until Congress passed the NDAA on

December 12, 2017. Compl. ¶¶ 15,18,19. This unlawful exercise of authority, Plaintiff maintains,

violated the Privacy Act (Count I), the Little Tucker Act (Count II), and his “Constitutional and

privacy rights” (Count III). He also alleges that the agency was unjustly enriched by the

unauthorized fees collection (Count IV). Plaintiff seeks declaratory relief, a refund of the

registration fees collected before December 12, 2017 (totaling $4,183,980), and over $836,796,000

in statutory penalties for each violation of the Privacy Act (the equivalent to $1,000 for every

putative class member). Compl. at 15–16 ¶¶ C – L.

Defendant then moved to dismiss, arguing (1) Plaintiff does not have standing to assert his

claims, (2) the D.C. Circuit has exclusive jurisdiction over this action, and (3) the Complaint fails

to state a legally cognizable cause of action. See generally Def.’s Mot. 3 Because the court finds

that Plaintiff lacks standing, it does not reach the second and third arguments.

1 Citing FAA, Unmanned Aircraft Systems Frequently Asked Questions, https://www faa.gov/uas/faqs/. 2 Plaintiff first brought the claims raised here on August 3, 2017, in a separate action commenced in the District of Maryland. Def.’s Mot. at 7–8. However, Plaintiff voluntarily dismissed that action after passage of the NDAA.

3 Plaintiff moved to certify the class, see ECF No. 6, but the court stayed the question of class certification until it resolved Defendant’s Motion to Dismiss, see Minute Order granting Motion to Hold in Abeyance, ECF No. 12.

4 III. LEGAL STANDARD

A motion to dismiss for lack of standing arises under Federal Rule of Civil Procedure

12(b)(1). See Food & Water Watch, Inc. v. Vilsack,

(D.C. Cir. 2015).

Every plaintiff in federal court bears the burden of showing that she meets the “irreducible

constitutional minimum” of Article III standing: (1) injury in fact, (2) causation, and

(3) redressability. See Lujan v. Defenders of Wildlife,

, 560–61 (1992). At the motion

to dismiss stage, a plaintiff “must state a plausible claim that [she has] suffered an injury in fact

fairly traceable to the actions of the defendant that is likely to be redressed by a favorable decision

on the merits.” Food & Water Watch,

(quoting Humane Soc’y of the U.S. v.

Vilsack,

(D.C. Cir. 2015)). The court must accept as true all well-pleaded factual

contentions and draw all reasonable inferences therefrom, but it need not accept thread-bare

recitals of the elements of standing or legal conclusions couched as factual averments. See Arpaio

v. Obama,

(D.C. Cir. 2015). In deciding a Rule 12(b)(1) motion, the court “may

consider materials outside the pleadings[.]” Jerome Stevens Pharm., Inc. v. Food & Drug Admin.,

(D.C. Cir. 2005) (citation and alteration omitted).

IV. DISCUSSION

With these standards in mind, the court proceeds to consider whether Plaintiff has carried

his burden of establishing standing. He has not. Plaintiff satisfies neither the injury-in-fact nor

redressability elements of standing.

A. Injury in Fact

To satisfy the injury-in-fact requirement, plaintiff must show that his alleged injury was

both concrete and particularized. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,

(2000). Further, an injury in fact must be “actual or imminent, not conjectural

5 or hypothetical.” Lujan,

. And, as here, in the class-action context, named plaintiffs

“must allege and show that they personally have been injured, not that injury has been suffered by

other, unidentified members of the class to which they belong and which they purport to represent.”

Warth v. Seldin,

(1975) (emphasis added).

Plaintiff is quite clear as to what he believes constitutes a cognizable injury in fact in this

case. He asserts two forms of injury. First, “he lost the use of funds during the period in which

the FAA lacked statutory authority to collect such registration fees” and “had not been

compensated for the lost use of funds at the time he filed suit.” Pl.’s Opp’n to Def.’s Mot., ECF

No. 24 [hereinafter Pl.’s Opp’n], at 8; see also Compl. ¶ 37 (alleging that he was “deprived . . . of

the use of those funds”). Second, he suffered the “intangible harm of Defendants’ unlawful

maintenance of his personal information.” Pl.’s Opp’n at 9. The court considers each of these

claimed injuries in turn.

1. Interest and the Time Value of Money

The “time value of money” is the notion that money available today is worth more than the

same amount of money in the future. See, e.g., Stephens v. U.S. Airways Grp., Inc.,

(D.C. Cir. 2011) (Kavanaugh, J., concurring). That principle is premised on the idea that

money can earn interest over time or be put to some other income-generating use, if invested.

See

Neither the Supreme Court nor the D.C. Circuit has determined whether the lost time value

of money is a harm concrete enough to satisfy the injury-in-fact requirement. Indeed, only one

circuit court appears to have even come close to embracing such a theory, and there the alleged

lost use was for a sum of money ($10,000) far greater than at issue here. See Habitat Educ. Ctr.

v. U.S. Forest Serv.,

(7th Cir. 2010) (stating that “[e]very day that a sum of

6 money is wrongfully withheld, its rightful owner loses the time value of the money,” creating a

harm sufficient for standing). The only other circuit to have faced the question declined to reach

it. See Kawa Orthodontics, LLP v. Sec., U.S. Dep’t. of Treasury,

(11th Cir.

2014). And some district courts have rejected the notion that lost time value of money is

constitutionally sufficient to satisfy standing when the amount wrongfully taken or withheld was

discharged before filing suit—a circumstance comparable to this case, as Plaintiff now must pay

the $5 fee to register his model aircraft. E.g., Amirhamzeh v. Chase Bank USA, N.A., No. CV 13-

00527 BRO FFMX,

, at *4 (C.D. Cal. Oct. 7, 2013); Holaway v. Protective Life

Ins. Co., No. 4:07-CV-109 (CDL),

, at *2 (M.D. Ga. Oct. 3, 2007). Thus,

accepting the lost time value of money as a cognizable constitutional injury is far from well

established.

The court need not, however, venture down this rabbit hole. For even if the lost time value

of money could suffice to make out an Article III injury, the “bare allegation that [a plaintiff] has

lost the value of the time and resources . . . sets out an injury that is too abstract and indefinite to

confer Article III standing.” Kawa Orthodontics,

(cleaned up). Here, Plaintiff

does not allege any facts to suggest that if he had not paid the $5 registration fee he would have

invested the $5 in some way to increase its value. See generally Compl. At most, he offers only

generalizations that he was “deprived . . . of [the] use of those funds” and is entitled “to be

compensated for his lost use of funds.” Compl. ¶ 37; Pl.’s Opp’n. at 9. Such conclusory

proclamations are not the kind of clear allegations of fact necessary to establish an injury in fact,

even at the motion to dismiss stage. See Spokeo, Inc. v. Robins,

, __,

(2016). Other courts have reached the same conclusion. See Kawa Orthodontics,

(finding that where plaintiff did not mention interest or suggest “specific plans to invest its

7 money into an interest-bearing asset,” the court could not “hypothesize or speculate about the

existence of an injury [plaintiff] did not assert”); Barber v. Lincoln Nat’l Life Ins. Co.,

(W.D. Ky. 2017) (“The complaint makes no particularized allegation that [plaintiff]

lost the time value of money . . . It may be implied by the nature of [plaintiff’s] allegations

that . . . he lost the opportunity to grow that money through investment. But the Court cannot find

injury via implication[.]”).

Therefore, as pleaded, Plaintiff does not allege a sufficient injury in fact to support standing

based on the lost time value of money. 4

2. Unlawful Maintenance of Personal Information

Plaintiff’s contention that the FAA’s unlawful acquisition and maintenance of his personal

information constitutes a cognizable injury suffers from similar problems. Presumably, this

asserted injury arises from the FAA’s alleged violation of the Privacy Act. See Compl. ¶¶ 33–34,

37. In Doe v. Chao, the Supreme Court explained that the Privacy Act’s reference to “adverse

effect” in 5 U.S.C. § 552a(g)(1)(D)—the statutory section under which Plaintiff asserts his Privacy

Act claim, see Compl. ¶ 36—“acts as a term of art identifying a potential plaintiff who satisfies

the injury-in-fact and causation requirements of Article III standing, and who may consequently

bring a civil action without suffering dismissal for want of standing to sue.” Doe v. Chao,

(2004). The Court in Doe did not supply a definition of “adverse effect,” and this

court has not found a decision from the D.C. Circuit, or any other circuit, that does so. Whatever

4 The court recognizes that the D.C. Circuit has said that a “dollar of economic harm is still an injury-in-fact for standing purposes.” Carpenters Indus. Council v. Zinke,

(D.C. Cir. 2017). But how about less than a dollar? The court need not resolve that question. Nevertheless, by the court’s rough calculations, using the current approximate benchmark interest rate of 2.25%, an investment of $5 over two years’ time (assuming Plaintiff paid his registration fee on the very day the FAA adopted the Registration Rule) would yield 23 cents in lost interest. Is that enough harm to establish Article III standing? Some courts have said unpaid interest in similar circumstances is not enough to confer standing. See Friedman v. Dollar Thrifty Auto. Grp., Inc.,

(D. Colo. 2017) (holding that a person made whole as to the amount allegedly wrongfully withheld and whose only claimed injury is “he was not paid interest on the amount” lacks sufficient injury to establish standing) (citing cases).

8 the term may include, it cannot sweep so broadly as to encompass Plaintiff’s claimed injury—the

mere improper maintenance of Plaintiff’s name, address, and email address by the FAA. Indeed,

one circuit court has rejected more meaningful claimed injuries as failing to satisfy the “adverse

effect” standard. See, e.g., Beck v. McDonald,

(4th Cir. 2017) (rejecting

“emotional upset” and “fear [of] identity theft and financial fraud” resulting from a data breach as

sufficient to confer Article III standing for a Privacy Act violation). Cf. In re Sci. Applications

Int’l Corp. (SAIC) Backup Tape Data Theft Litig.,

, 28–29 (D.D.C. 2014) (finding

no injury, awarding no statutory damages, and dismissing under Rule 12(b)(1) a Privacy Act

violation claim for a data breach resulting from the theft of tapes containing the data of 4.7 million

members of the U.S. military and their families where plaintiffs alleged no harm other than the

theft of their data); Speaker v. U.S. Dep’t of Health & Human Servs. Centers for Disease Control

& Prevention,

(11th Cir. 2010) (finding standing where the plaintiff alleged

such harms as strain on his marital relationship, public criticism, death threats, and damage to

reputation because of unauthorized disclosure of medical information). Thus, the wrongful

possession of Plaintiff’s personal information, without more, does not establish an injury in fact.

Plaintiff’s claimed injury arising from the FAA’s keeping of his personal information also

runs aground on Circuit precedent. Recently, the D.C. Circuit held in Owner-Operator

Independent Drivers Ass’n, Inc. v. U.S. Department of Transportation, that the mere existence of

inaccurate information about truckers’ driving records in an agency database does not amount to

a sufficiently concrete injury to confer standing, even where the agency had a statutory obligation

to keep accurate records. See

, 344–45 (D.C. Cir. 2018); cf.

(holding that the

disclosure of inaccurate information to a potential employer was a sufficient injury). If the mere

maintenance of inaccurate information is not sufficient to confer standing, surely an agency’s

9 retention of prosaic personal information is not either. Plaintiff therefore lacks standing to assert

his claim under the Privacy Act.

B. Redressability

“The redressability inquiry,” to which the court now turns, “poses a simple question:

‘If plaintiffs secured the relief they sought, . . . would [it] redress their injury’?” The Wilderness

Soc'y v. Norton,

(D.C. Cir. 2006) (quoting Mountain States Legal Found. v.

Glickman,

(D.C. Cir. 1996)). To demonstrate that a claimed injury is

redressable requires a plaintiff to show that the court possesses the authority to grant the remedy

requested. See Swan v. Clinton,

(D.C. Cir. 1996) (stating that the

“‘redressability’ element of standing” asks “whether a federal court has the power to grant [the

plaintiff’s requested] relief”); accord M.S. v. Brown,

(9th Cir. 2018) (stating

that “even where a plaintiff requests relief that would redress her claimed injury, there is no

redressability if a federal court lacks the power to issue such relief”). Here, Plaintiff asserts that

the court can redress his claimed injuries by (1) refunding his $5 registration fee, (2) compensating

him for the lost use of the $5 fee, and (3) awarding him statutory damages under the Privacy Act

“as a result of the FAA’s unlawful, intentional, and willful conduct.” Pl.’s Opp’n at 9. The court

lacks the power to grant these forms of relief.

The court cannot award Plaintiff a $5 refund, or some lesser amount, to compensate him

for the lost time value of money. As the FAA correctly points out, making Plaintiff whole for the

lost use of $5 over a two-year period would be tantamount to an award of interest. See Holland v.

Bibeau Const. Co.,

(D.C. Cir. 2014) (“Interest merely equalizes the time value of

money, making the same amount similarly valuable when paid at different times.”); Motion Picture

Ass’n of Am., Inc. v. Oman,

(D.C. Cir. 1992) (observing that “interest

10 compensates for the time value of money”). But, absent an express waiver of sovereign immunity,

an award of interest cannot be recovered against the United States. See Library of Congress v.

Shaw,

(1986) (holding that “interest cannot be recovered in a suit against the

Government in the absence of an express waiver of sovereign immunity from an award of

interest”); accord Thompson v. Kennickell,

(D.C. Cir. 1986) (“Absent a

clearly manifested congressional decision to waive the traditional ‘no-interest rule’ in government

suits, we cannot award . . . interest in this case.”). Neither the Privacy Act nor the Little Tucker

Act—the only statutory claims advanced by Plaintiff—provide such a waiver. Moreover, Plaintiff

cannot avoid the bar of the “no-interest” rule by recharacterizing his claimed injury as

compensatory “damages.” “[T]he character or nature of ‘interest’ cannot be changed by calling it

‘damages,’ ‘loss,’ ‘earned increment,’ ‘just compensation,’ ‘discount,’ ‘offset,’ or ‘penalty,’ or any

other term, because it is still interest and the no-interest rule applies to it.” Shaw,

(quoting United States v. Mescalero Apache Tribe,

(Ct. Cl. 1975)). Plaintiff’s

claim for the lost use of the $5 fee is a demand for interest. Therefore, the court lacks the power

to redress Plaintiff’s asserted injury of the lost time value of money.

The court likewise lacks the power to redress Plaintiff’s purported harm arising out of the

FAA’s unauthorized retention of his personal information. As discussed, Plaintiff does not allege

that he suffered any actual harm stemming from the FAA’s collection of his information. Instead,

what he appears to assert is that the agency’s mere violation of the Privacy Act entitles him to a

statutory award of at least $1,000 plus attorney’s fees and costs. See Compl. ¶ 40 (citing 5 U.S.C.

§ 522a(g)(4)). The Supreme Court, however, squarely foreclosed that possibility in Doe v. Chao.

There, the Court held that “[t]he ‘entitle[ment] to recovery’ necessary to qualify for the $1,000

minimum is not shown merely by an intentional or willful violation of the Act producing some

11 adverse effect. The statute guarantees $1,000 only to plaintiffs who have suffered some actual

damages.”

. Later, in FAA v. Cooper, the Court clarified that the term “actual

damages” as used in the Privacy Act refers only to “proven pecuniary or economic harm.”

(2012).

Here, Plaintiff’s Complaint contains no factual basis from which the court can plausibly

infer that it would have the power to award him the minimum $1,000 statutory award to redress

his claimed injury. Having made no allegation whatsoever of pecuniary or economic harm caused

by the alleged Privacy Act violation, the court is foreclosed from granting the $1,000 statutory

award he seeks.

C. Causation

A brief word about causation before concluding. As to that element, a plaintiff must allege

an injury that is “fairly traceable to the defendant’s allegedly unlawful conduct.” Lujan,

. He cannot, however, “manufacture standing merely by inflicting harm on [himself] . . . ”

Clapper v. Amnesty Int’l. USA,

(2013); accord Nat’l Family Planning and

Reproductive Health Ass’n, Inc. v. Gonzales,

(D.C. Cir. 2006) (“We have

consistently held that self-inflicted harm doesn’t satisfy the basic requirements for standing.”).

Here, to some degree, Plaintiff has brought harm upon himself. He did not avail himself

of the opportunity that the FAA afforded registrants post-Taylor to request both a refund and

removal of his personal information from the agency’s database. Had he done so, Plaintiff would

have achieved much of what he now seeks, at least on his own behalf, through this lawsuit. The

return of the $5 application fee when the FAA offered it would have reduced the lost time value

of money, and the deletion of his personal information would have ended the agency’s possession

12 of it. There would have been little to remedy at the time he filed suit. Thus, the injury he now

claims feels manufactured.

In any event, the court forgoes making any finding as to causation, because the FAA has

not argued that the element is lacking and the absence of the remaining two elements is sufficient

to conclude Plaintiff does not have standing.

V. CONCLUSION AND ORDER

For the foregoing reasons, Defendant’s Motion to Dismiss is hereby granted. Unless

Plaintiff seeks to amend his Complaint within 14 days, the court will enter a final, appealable order.

Dated: November 26, 2018 Amit P. Mehta United States District Judge

13