Are you interested in learning more about the RaceDayQuads LLC v FAA lawsuit?
The lawsuit is seeking to strike down the drone remote identification regulations as illegal.
Table of Contents of Article
- 1 Background
- 2 Where We Are With Things:
- 3 Oral Arguments
- 4 Estimated Date of Opinion
- 5 Who Has Joined (Or Not) in the Lawsuit
- 6 Summary of Petitioner’s Arguments
- 7 Summary of FAA’s Counter Arguments
- 8 Summary of RaceDayQuads Reply Brief Arguments
- 9 Attorneys for RaceDayQuads LLC
- 10 Attorneys for the Government
- 11 Court Filings
December 31, 2019, the FAA proposed the remote identification regulations. 53,000+ people commented in response to this proposal. January 15, 2021, the FAA published in the Federal Register the final remote identification rule. On March 12, 2021, RaceDayQuads filed a petition for review in the United States Court of Appeals for the District of Columbia Circuit.
There were all sorts of shocking things that happened behind the scenes with this rulemaking such as multiple secret meetings the FAA with outside parties which were intentionally kept out of the public eye and were never fully disclosed on the record.
On top of that, the final rule largely ignored a particular group of unmanned aircraft flyers – the first person viewing drone flyers. All of this forced the hand of the FPV community to strike back in defense of their constitutional rights and freedoms.
For a complete breakdown on all of the FAA hidden meetings with private industry (T-Mobile, Airmap, Amazon, etc.) as well as the massive government surveillance plan that was exposed, head over to my article on remote identification. DHS and the FAA tried to keep all sorts stuff hidden but we obtained the documents.
RaceDayQuads has a dedicated page explaining things here.
Where We Are With Things:
Certificate as to Parties, Rulings, and Related Cases by April 15, 2021 Docketing Statement Form by April 15, 2021 Procedural Motions, if any by April 15, 2021 Statement of Intent to Utilize Deferred Joint Appendix by April 15, 2021 Statement of Issues to be Raised by April 15, 2021 Underlying Decision from Which Appeal or Petition Arises by April 15, 2021 Entry of Appearance Form by April 15, 2021 Procedural Motions, if any by April 15, 2021 Certified Index to the Record by April 30, 2021 Dispositive Motions, if any (Original and 4 copies) by April 30, 2021 RaceDayQuads Brief, Appendix, and Addenda – Filed – 8/4/2021 Department of Justice’s Filed – 10/4/2021 AUVSI as Amicus Curiae Brief Due – 10/12/2021 RaceDayQuads Reply Brief – Due 11/2/2021 Oral Arguments – 12/15/2021
- Court Opinion Published
The oral argument is archived on Youtube here.
Estimated Date of Opinion
I searched the resent opinions from the D.C. Circuit and put them into a spreadsheet so we can try and make an informed decision. Here are the results with the estimated opinion date.
|Oral Argument Date||Decided||Days Between|
|Average Day (Minus Outliers)||60.90909091|
|Our Oral Argument Date||12/15/2021|
|61 Days Date||2/14/2022|
Who Has Joined (Or Not) in the Lawsuit
- Academy of Model Aeronautics has been silent. They have not helped or done anything.
- AUVSI filed in as an Amicus Curiae.
Summary of Petitioner’s Arguments
II. UNLIMITED REMOTE ID VIOLATES FOURTH AMENDMENT
A. The Rule Infringes Upon Reasonable Expectations in Privacy
1. Warrantless Search of Curtilage
2. Infringes upon Privacy Interests of Small Drone Operators
3. Infringes upon Privacy Expectation in the Whole of People’s Movements
4. The Fourth Amendment is Violated by Unlimited Time Length of Tracking
B. Remote ID Utilizes More Intrusive Tracking Technology Than That Already Recognized as Unconstitutional
III. FAA ARBITRARILY AND CAPRICIOUSLY EITHER RELIED UPON UNDISCLOSED EX PARTE COMMUNICATIONS, OR FAILED TO CONSIDER RELEVANT INFORMATION, AND TO EXPLAIN OR SUPPORT CHANGES IN THE FINAL RULE
A. FAA Intentionally, Arbitrarily, and Capriciously Concealed Relevant and Significant Information
B. FAA Arbitrarily and Capriciously Failed to Consider Important Aspects of Remote ID and Changed the Final Rule with No Support from the Record.
IV. THE FINAL RULE WAS NOT A LOGICAL OUTGROWTH OF THE NPRM
A. Increasing Altitude Accuracy While at The Same Time Switching Sensor Technology Was Not a Logical Outgrowth of The NPRM.
B. NPRM Never Proposed Two Transmitters On the Same Unlicensed Radio Frequencies Transmitting Simultaneously.
V. FAA FAILED TO COMPLY WITH THE STATUTORY REQUIREMENT TO CONSULT WITH RTCA AND NIST IN CREATING REMOTE ID STANDARDS
VI. FAA IGNORED SIGNIFICANT CRITICAL COMMENTS
A. Failed to Explain Constitutional Authority Under the Commerce Clause to Regulate All Drones to the Ground
B. Failed to Justify and Explain Statutory Authority to Regulate Airspace Low to the Ground
C. FAA Completely Ignored Material Comments Challenging the Rule’s Legality
D. Refused to Accept Conflicting Evidence as to True Regulatory Costs.
E. No Consideration to an Exception for Model Aircraft
F. Failed to Explain Why Homeowners and Local Parks Cannot Apply for a FRIA
G. Failed To Respond To Comments On The Rule Not Being Safe .
1. Lack of Data Showing sUAS Are Unsafe or the Rule’s Safety Benefits.
2. Refused to Address Physical Assaults on Drone Pilots Flying Aircraft
The entire 70+ page brief full of all sorts of legal citations is located here. https://www.racedayquads.com/pages/faa-legal-battle-to-save-fpv
The FAA did ALOT of ex parte meetings during the rulemaking. Here is a graphs to just show the breadth of the ex parte collaboration that went on between the FAA and industry.
Summary of FAA’s Counter Arguments
I. The Remote ID Rule Does Not Violate The Fourth Amendment
A. The Remote ID Rule Does Not Violate A Reasonable Expectation of Privacy
B. Any Constitutionally Cognizable Search Would Be Minimally Intrusive And Not Require A Warrant. .
II. The Remote ID Rule Is Not Arbitrary And Capricious.
A. The FAA Did Not Consider Any Ex Parte Communications In Issuing The Remote ID Rule.
B. The Remote ID Rule Is A Logical Outgrowth Of The Proposed Rule.
C. The FAA Considered And Responded To All Material Comments.
D. The FAA Satisfied Statutory Requirements To Consult Radio Technical Commission for Aeronautics, Inc. And The National Institute Of Standards And Technology.
Summary of RaceDayQuads Reply Brief Arguments
II. REMOTE ID DOES VIOLATE THE FOURTH AMENDMENT
A. Reasonable Expectation of Privacy
1. Special Privacy Considerations for Aircraft in the Sky do Not Apply to Drones Low to the Ground.
2. Mandatory Installation of GPS is a Search .
3. Intended Law Enforcement Use .
B. No Special Needs Exception Applies
C. The Argument is Ripe for Consideration
III. THE RULE IS ARBITRARY AND CAPRICIOUS
A. Ex parte communications were considered
B. Lack of Transparency is Material and Standing is Not an Issue .
C. FAA Has Not Shown Changes in the Final Rule Were a Logical Outgrowth
1. Barometric to Geometric Altitude
2. Limited Remote ID to Broadcast Module ID
D. FAA Has Not Shown it Properly Considered or Responded to Material Comments
IV. FAA DID NOT SATISFY THE STATUTORY REQUIREMENT OF CONSULTATION
Attorneys for RaceDayQuads LLC
Ms. Kathleen Ann Barbara Yodice of Yodice Associates
From her page:
Kathy Yodice has been representing aviation legal interests for almost 30 years, beginning her career as an FAA prosecutor and regulatory lawyer, before then moving into private practice defending air carriers, commercial operators, repair stations, pilots, and mechanics against FAA enforcement actions and assisting entities and individuals in aviation compliance matters, medical certification concerns, and aviation-related business and transactional issues. Ms. Yodice is a frequent lecturer on aviation legal issues involving flight activities, aircraft acquisitions, airports, medical certification, maintenance, and insurance. In addition, Ms. Yodice regularly authors columns for the aviation community.
Ms. Yodice received her law degree from the University of Maryland School of Law and a Bachelor of Arts degree, cum laude, from Frostburg State University, where she concentrated her studies on psychology and mathematics. Ms. Yodice is admitted to practice in Maryland and the District of Columbia, as well as the U.S. Courts of Appeals for the 4th, 5th, 8th, 7th, 9th, 10th, 11th, and District of Columbia Circuits and the U.S. Supreme Court. She is an active member of the Maryland and D.C. Bar Associations, the Lawyer Pilots Bar Association, and the International Air & Transportation Safety Bar Association. Ms. Yodice is a Past President of the Lawyer-Pilots Bar Association and currently sits on their Board, and she served on AOPA’s Board of Aviation Medical Advisors and the Board of the Civil Aviation Medical Association. She was appointed to, and continues to serve on, the Editorial Board for the ABA Forum on Air and Space Law, and she is a former long-time panel member in the Transportation Research Board’s Airport Cooperative Research Program. She is also an active member of many aviation and legal organizations, including AOPA, NBAA, Civil Aviation Medical Association, Cub Club, United States Pilots Association, Aero Club of Washington, and Women In Aviation, International.
Ms. Yodice is an instrument rated private pilot. She learned to fly in the family’s 1946 Piper J-3 Cub, and formerly co-owned a 1968 Piper Cherokee 180 with her brother.
Mr. Jonathan Rupprecht
Jonathan Rupprecht is a drone lawyer and a FAA-certificated commercial pilot with single-engine, multi-engine, and instrument ratings. He is also a FAA-certificated airplane flight instructor and instrument flight instructor. He currently is a contributor to Forbes.com for Aerospace & Defense.
The American Bar Association has published a legal treatise on unmanned aircraft law that Jonathan co-authored with other drone attorneys called Unmanned Aircraft in the National Airspace: Critical Issues, Technology, and the Law. Jonathan wrote two chapters on administrative law, the FAA rule-making process, the special rule on unmanned aircraft, and a brief history of unmanned aircraft. Jonathan also authored another book called Drones: Their Many Civilian Uses and the U.S. Laws Surrounding Them.
He was first an advisor for one of the amicus briefs for the highly publicized Huerta v. Pirker case. Jonathan worked with John Taylor on the Taylor v. FAA case which in May 2017 resulted in the Federal District Court of Appeals for D.C. striking down the FAA’s registration regulations. He also briefly helped on the Singer v. City of Newton case.
More info here.
Mrs. Elizabeth Mae Candelario
From bio page:
Elizabeth Candelario is a partner with Parlatore Law Group who focuses on administrative law issues, aviation, and lobbying compliance. She brings her significant breadth of experience, knowledge base, and enthusiasm to each issue she tackles, whether it is providing guidance and advice, regulatory interpretation, or crafting an argument. Her thorough analysis and focus on the unique circumstances and legal nuance of each case make Ms. Candelario a zealous appellate advocate.
Ms. Candelario has over 11 years of experience representing individuals and organizations in appeals of administrative determinations. She works to help clients in matters involving the FAA, focusing primarily on appeals to the National Transportation Safety Board and the U.S. Courts of Appeal on behalf of FAA certificate holders defending against enforcement action or seeking review of a denial of certification. She also assists military members in appealing to the Board of Corrections of Military Records, and denials of BCMR determinations to the federal courts. She has successfully argued before the U.S. Court of Appeals for the D.C. Circuit Court of Appeals on issues involving the validity and interpretation of FAA procedural requirements. She has particular experience in defending against allegations of intentional falsification. She also represents entities seeking to intervene or participate in cases as amicus curia, both before the NTSB and federal courts. Additionally, Ms. Candelario is experienced in advising companies on regulatory compliance matters.
Ms. Candelario also assists clients in their advocacy efforts, including at the grassroots level, to comply with lobbying disclosure and ethics rules at the federal, state, and local levels. She has extensive knowledge of the requirements of the Lobbying Disclosure Act. She works with clients to provide training on registration triggers and disclosure obligations, provide advice and oversight of the preparation and submission of required filings, and to advise clients in an effort to ensure compliance with ethical requirements and limitations imposed by federal or state lobbying laws.
Ms. Candelario has also worked with non-profit associations to provide legal guidance, draft and review corporate documents, and assist with various issues that arise in the role of general counsel.
In addition to her work with Parlatore Law Group, Ms. Candelario volunteers in the Legal Assistance office at Camp Pendleton, providing advice and mediation services to military members and dependents. She lives in Oceanside, CA, with her husband and two little boys.
Ms. Candelario graduated in the top 10% of her class at Villanova University School of Law. She completed her undergraduate degree at La Salle University, where she was a member of the University Honors Program and graduated Magna Cum Laude.
Attorneys for the Government
Department of Transportation
JOHN E. PUTNAM Acting General Counsel
PAUL M. GEIER Assistant General Counsel
CHARLES E. ENLOE Trial Attorney
Federal Aviation Administration
MARK W. BURY Acting Chief Counsel
LORELEI PETER Assistant Chief Counsel for Regulations
JENNIFER D. AMBROSE Senior Attorney Federal Aviation Administration
Department of Justice
BRIAN M. BOYNTON Acting Assistant Attorney General
MICHAEL S. RAAB Attorney, Appellate Staff
CASEN B. ROSS Attorney, Appellate Staff