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The Petitioners in the Brennan v. FAA Remote ID lawsuit

Chip

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Wednesday, December 15, 2021 9:30 A.M. USCA Courtroom 31 - Assigned Judges: Pillard, Wilkins, Walker

Three cases set for hearing that morning, starting at 9:30 am, Tyler Brennan v Steven Dickson is 3rd case in line. Will confirm likely start time on Friday.


 
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Chip

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Meet the three judge panel who will hear this case.


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JUDGE CORNELIA T.L. PILLARD

Judge Pillard was appointed to the United States Court of Appeals in December 2013. She graduated from Yale College in 1983 and Harvard Law School in 1987. Following graduation, she served as a law clerk to Judge Louis H. Pollak (1987-1988), and held the Marvin M. Karpatkin fellowship at the American Civil Liberties Union (1988-1989). From 1989 to 1994 she was Assistant Counsel at the NAACP Legal Defense and Education Fund, Inc. She served as an Assistant to the Solicitor General of the United States from 1994 to 1997. In 1997, Pillard joined the tenure-track faculty at Georgetown Law. She served from 1998 to 2000 as Deputy Assistant Attorney General in the Office of Legal Counsel. Pillard returned to Georgetown Law, received tenure, and served from 2008 to 2009 as inaugural Academic Co-Director and Professor at the Center for Transnational Legal Studies, a London-based, Georgetown-led law study program conducted in collaboration with law schools from many different countries. Pillard was an active member of the Georgetown Law Supreme Court Institute (SCI) from its founding in 2003, and became SCI Faculty Co-Director in 2011. She was a Fellow at the Woodrow Wilson International Center for Scholars during 2012-2013. Pillard remained a full professor at Georgetown Law until her appointment as U.S. Circuit Judge. Pillard and her husband and teenage children live in Washington, D.C.

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JUDGE ROBERT L. WILKINS

Judge Wilkins was appointed to the United States Court of Appeals for the District of Columbia Circuit on January 15, 2014. A native of Muncie Indiana, he obtained a B.S. in Chemical Engineering from Rose-Hulman Institute of Technology in 1986 and a J.D. from Harvard Law School in 1989. Following law school, Judge Wilkins served as a law clerk to the Honorable Earl B. Gilliam of the United States District Court for the Southern District of California. In 1990, he joined the Public Defender Service for the District of Columbia, where he served first as a staff attorney in the trial and appellate divisions and later for several years as Special Litigation Chief. In 2002, he joined the law firm of Venable LLP as a partner, handling white-collar defense, intellectual property, and complex civil litigation matters. During his tenure with the Public Defender Service and in private practice, Judge Wilkins served as the lead plaintiff in Wilkins, et al. v. State of Maryland, a landmark civil rights lawsuit that inspired nationwide legislative and executive reform of police stop-and-search practices and the collection of data regarding those practices. Judge Wilkins also played a key role in the establishment of the Smithsonian National Museum of African American History and Culture (opened in September 2016 on the National Mall), serving as the Chairman of the Site and Building Committee of the Presidential Commission whose work led to the Congressional authorization of the museum and the selection of its location. As a practicing lawyer, he was named one of the “40 under 40 most successful young litigators in America” by the National Law Journal (2002) and one of the “90 Greatest Washington Lawyers of the Last 30 Years” by the Legal Times (2008). In 2019, Judge Wilkins received the Harvard Law School Association Award and the Washington Bar Association Charles Hamilton Houston Medallion of Merit. On December 27, 2010, Judge Wilkins was appointed United States District Judge for the District of Columbia, where he served until his appointment to the D.C. Circuit.

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JUDGE JUSTIN R. WALKER

Judge Walker was appointed to the United States Court of Appeals in September 2020. A graduate of Duke University and Harvard Law School, he clerked for then-Judge Brett Kavanaugh and Justice Anthony Kennedy. In 2019, he was appointed to the U.S. District Court for the Western District of Kentucky. Prior to that, he practiced at Gibson Dunn & Crutcher (D.C.) and Dinsmore & Shohl (Louisville). He has taught law in several states and foreign countries.
 

Chip

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Excerpt from Judge Wilkins bio:

During his tenure with the Public Defender Service and in private practice, Judge Wilkins served as the lead plaintiff in Wilkins, et al. v. State of Maryland, a landmark civil rights lawsuit that inspired nationwide legislative and executive reform of police stop-and-search practices and the collection of data regarding those practices.

Judge Wilkins has unique experience with the 4th Amendment.

 
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Chip

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The Association for Unmanned Vehicle Systems International (AUVSI), the world's largest nonprofit organization dedicated to the advancement of unmanned systems and robotics, represents corporations and professionals from more than 60 countries involved in industry, government and academia. AUVSI members work in the defense, civil and commercial markets.

AUVSI filed an amicus curiae or friend of the court brief. In the brief, AUVSI argues that any 4th Amendment challenge to Remote ID is not ripe (or is premature) until someone actually uses it to track you or your drone. Here is the quote:

AUVSI RIPENESS ARGUMENT

Petitioners’ 4th Amendment Claims Are Unripe.


“[t]he rule merely requires that [drones] broadcast certain information[.] … The rule does not address how various government agencies may subsequently use that information,” and thus in and of itself does not constitute a search. Because the Final Rule does not constitute a search, Petitioners’ Fourth Amendment claims are not only meritless, they are nonjusticiable because they are not ripe.

My question to AUVSI is this: Judge Wilkins said that in his lawsuit against the state of Maryland in the 1990s they found buried in discovery a written state patrol policy that sanctioned racial profiling on one stretch of highway. Is AUVSI saying that having such a policy in the file is no problem unless or until someone acts on it? It was not until a particular state trooper acted on the policy and pulled over Judge Wilkins that the constitutional violation occurred and became ripe for consideration? Maybe that is too abstract. Let us ask AUVSI this one. Could DOT mandate installation of broadcast GPS trackers on all motor vehicle operated anywhere in the country? No way to challenge because unless or until the tracker is activated and used by someone, you have nothing ripe in your hands.
 

Chip

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Remember John Taylor, the guy who beat the FAA in 2017 at the DC Court of Appeals?

The court of appeals ruled that the FAA had zero legal authority to require drone hobbyists to register their drones. The three judge panel included Judge Brett Kavanaugh (now of US Supreme Court) and Judge Robert Wilkins.

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Decided May 19, 2017
No. 15-1495

JOHN A. TAYLOR, PETITIONER, PRO SE
v.
MICHAEL P. HUERTA, AS ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, RESPONDENT


On Petitions for Review of Orders of the Federal Aviation Administration

Before: BRETT KAVANAUGH and ROBERT L. WILKINS, Circuit Judges, and EDWARDS, Senior Circuit Judge.
Opinion for the Court filed by Circuit Judge KAVANAUGH.

Petitioner John Taylor is a model aircraft hobbyist who is now required to register with the FAA. Taylor does not think that the FAA had the statutory authority to issue the Registration Rule and require him to register. Taylor is right. In 2012, Congress passed and President Obama signed the FAA modernization and Reform Act. Section 336(a) of that Act states that the FAA “may not promulgate any rule or regulation regarding a model aircraft.” Pub. L. No. 112–95, § 336(a), 126 Stat. 11, 77 (2012) (codified at 49 U.S.C. § 40101 note). The FAA’s 2015 Registration Rule, which applies to model aircraft, directly violates that clear statutory prohibition. We therefore grant Taylor’s petition and vacate the Registration Rule to the extent it applies to model aircraft.