Accident / FAA wants my Certificate
Mark S Conway
See NTSB Report ......
The inspectors and everyone said i did a great job landing the airplane,
and actually said they will recommend that i don't have to take a 709 check
ride.
Well, a week later i get a certified letter in the mail from Boston
FSDO stating that i need to call the office within 10 days to schedule
the check ride or they will begin the process of revoking my license.
They also stated that my competency was in question. I called right away.
I stated that i have no airplane to use for a check ride but i will call
them as soon as i settle with the insurance company and find another plane.
In the meantime my right wrist was in a cast for a possible fracture (3
weeks) CT scan showed it was not... just a bad sprain i guess....
I received a check from the insurance co. on Feb. 14, 2002 .... and i started
looking for a plane...
Friday March 8th Boston FSDO called again, asking me how things are
going and if i found a plane yet... i said maybe, but it's a complex
this time and i'll need to be very comfortable before i take a check ride.
He said is 30 days enough time? i replied i guess so.... he
then said, you need to come here to Bedford, Ma and surrender your private
certificate and i'll issue you a Student Pilot Certificate, I don't want
you carrying passengers while this is pending. Your competency is in question
and i really need you to take that check ride, but in the meantime, no
passengers. I said this isn't fair, i haven't been found to be at
fault, it was engine failure due to low RPM and carb heat. Besides
didn't i pass a check ride landing in that field without killing anyone?
He said for now its standard procedure that everyone involved in an accident
will immediately surrender the license till they get a check ride....
i said whatever... i'll get there when i can....
OK... so what do i do? do i call AOPA legal... or what?
Thanks, Mark
Mark S. Jennings
It may be SOP to do what they're doing. I make no comment about whether it
is right or wrong, just SOP.
In any event, while you may be right in principle that you shouldn't be
forced to take this checkride and/or shouldn't be forced to find an airplane
right away to do it, it also sounds like you're making your life unusually
difficult. Why not rent an airplane for a couple hours and do the
checkride? Get this taken care of and move on. You dodged a bullet with
the forced landing - you're being given lots of time to get out of the way
of the next one.
- Mark
John Gaquin
"Mark S Conway" <mark....@attbi.com> wrote in message
> On January 12, 2002 I had an engine out 1 mile from the airport.
>
> OK... so what do i do? do i call AOPA legal... or what?
>
Mark.....
It seems that your simplest course would be to rent an airplane and take the
checkride, but first I would talk to an aviation lawyer, either your own or
AOPA. The Feds sound innocuous at this point, but I will tell you
unequivocally that the most dangerous thing you can do is trust them
implicitly and/or deal with them without legal representation. Talk to a
lawyer before you do anything else!
Regards,
John Gaquin
Mark S Conway
FSDO?
They go right through that thing, and will surely ground it.....
My mechanic has a Cherokee 140, and he said NO WAY are you taking my plane up
there....I;ll never get it back...
Peter Gottlieb
"Mark S Conway" <mark....@attbi.com> wrote in message
news:3C8A5134...@attbi.com...
Mike Spera
Guilty until proven innocent by a bureaucrat........ I LOVE a democracy.
Good Luck,
Mike
comanche driver
do is surrender your cert. my guess is that he does not have a basis to
revoke your cert and thinks he can get you to surrender it. i am the first
to rap lawyers but when you need one you need one and you need a good one
that is experienced with the FAA.
R. Burns
"John Gaquin" <jga...@earthlink.net> wrote in message
news:dysi8.1798$P4.1...@newsread2.prod.itd.earthlink.net...
Judah
one surrendering their certificate? And if he asks you to surrender it,
and you say no, then what?
I thought a 44709 checkride is just that - a check ride, where they
determine if remedial training is necessary. Admittedly, I was surprised
when the original poster said he was going to have to give up his PPL for
a student pilot's certificate. But wouldn't it be "reasonable" (if not
particularly considerate) for the FAA to want to check his proficiency in
emergency procedures after what happened, and if necessary recommend some
additional training if they found it appropriate?
Or am I just too altruistic and the FAA is out to get us all?
"comanche driver" <fight...@hotmail.com> wrote in
news:Hhvi8.1340$972.20...@newssvr17.news.prodigy.com:
Dick Steel
this discussion).The FAA examiner met me at the FSDO where I rented the
airplane,the check ride took a little over an hour ( he held me to the highest
standards of the ratings I held) and that was that!I got a letter in the mail
saying I had been found competent to exercise the priveleges of my license and
ratings.No big deal get yours out of the way and move on.
Dick
Unknown
recommended you get a good aviation lawyer. I concur! AOPA ran an
article about a year ago on just this very subject. There in they
stated that the first mistake pilots make is responding to the letter,
well a late on that point. Please get in touch with AOPA and get some
qualified help before the FED's rake you over the coals!
______________________________________________________________________
Posted Via Uncensored-News.Com - Still Only $9.95 - http://www.uncensored-news.com
With NINE Servers In California And Texas - The Worlds Uncensored News Source
Ron Parsons
Mark S Conway <mark....@attbi.com> wrote:
>I said this isn't fair, i haven't been found
>to be at fault, it was engine failure due to low RPM and carb heat.
You won't like this, but losing an engine to low RPM and not enough
power to provide carb heat could well be determined to be a pilot error
and may well require more than a check ride on your part to return to
the air.
--
Ron
John Gaquin
JG
Rick Cremer
Can't imagine what he'd say. <G>
"John Gaquin" <jga...@earthlink.net> wrote in message
news:TiKi8.3612$P4.3...@newsread2.prod.itd.earthlink.net...
C J Campbell
you a student certificate. Personally I would tell him to either start the
revocation process or shut up. If he wants to revoke your certificate he has
to give a reason. He has no reason, so he can't revoke your certificate
unless you surrender it like he asked.
"Judah" <Ju...@spamfree.com> wrote in message
news:Xns91CCC9A83...@66.114.74.35...
Judah
But I do agree with your point - I don't think he has a right to pull the
guy's PPL either... But I think the 44709 is legit.
Judah
"C J Campbell" <christoph...@NOSPAMhotmail.com> wrote in
news:u8nulg...@corp.supernews.com:
Doug
see if the FAA guy would sign off on it. Then go ahead and train with an
instructor and get it out of the way. I think I'd rather deal with an
instructor than the FAA checkride guy (or what ever they are called).
"Judah" <Ju...@spamfree.com> wrote in message
news:Xns91CDE5150...@66.114.74.35...
CraigA
Hi Mark, let me say think carefully before or even if you want to
respond to this, but I read the NTSB report and I may have a guess as to
what the Feds may be after if it helps.
I have several hundred hours of dual given in warriors and it appears to
be the use of the carb heat that has them flustered.
Unfortunately, the report doesn't give any detail of the weather that
day. Unlike Cessnas it is not required to apply carb heat in Pipers in
the descent unless it is really needed. It's very possible in my
opinion that between the use of the carb heat and low fuel flow the
mixture became too lean and stalled the engine. At such a low power
setting you may not have even noticed the engine was gone until it came
time to add power. Yes it still makes noise when it's dead. No
throttle control because the engine is already dead. The only question
that remains is why didn't it fire back up after the carb heat was
turned off?
Is it somewhere in the book that says this will happen? No. But it does
happen. With those old carburetors it is really not that surprising.
You can see why they are barking up your tree. Some Fed got it stuck in
his head that you did something horribly wrong when you were just
operating it by the book. The ironic part about it is they can't answer
the last question either.
Well I hope that helps....
Take Care..
Craig
http://www.v1rotate.com
View this thread: http://www.v1rotate.com/portal/forums/showthread.php?threadid=8884
Craig Prouse
According to the NTSB report the mixture was full rich. When adding carb
heat, the intake air becomes less dense. This effectively enriches the
mixture even further. Perhaps the engine died because the mixture was too
rich, rather than too lean, as you speculate?
Craig (Prouse)
RT
Craig Prouse <cra...@apple.com> wrote in message
news:B8B1A6E7.46A9F%cra...@apple.com...
> According to the NTSB report the mixture was full rich. When adding carb
> heat, the intake air becomes less dense. This effectively enriches the
> mixture even further. Perhaps the engine died because the mixture was too
> rich, rather than too lean, as you speculate?
>
> Craig (Prouse)
That's correct. Should be demonstrated to new pilots on the ground. Apply
carb heat and then lean to regain rpm.
Not something to fool with on short final of course, unless you are an
accomplished organ player :-)
Ron Natalie
Judah wrote:
>
> Can you explain this theory better? How does a 44709 check ride lead to
> one surrendering their certificate? And if he asks you to surrender it,
> and you say no, then what?
>
The 709 ride isn't, but what the FSDO weenie asked him to do is come in
and trade in his certificate for a student.
CraigA
Oops you're right... That's what I get for typing so late at
night....
:rolleyes:
Later..
Brien K. Meehan
news:a6i9d4$4lo$1...@spider.cqu.edu.au...
> Not something to fool with on short final of course, unless you are an
> accomplished organ player :-)
... or at least a registered organ donor.
--
NOTICE TO HIJACKERS - Any attempt to assume control of an aircraft of which
I am Pilot In Command or an occupant will be interpreted as an act of
terrorism and an imminent mortal threat to myself and others, and will be
met with lethal force to oppose that threat.
Gene Seibel
Mark S Conway <mark....@attbi.com> wrote in message news:3C8A3451...@attbi.com...
Larry Dighera
Clearly, we don't have enough information to come to any sort of
definitive conclusion about this mishap, but....
On Mon, 11 Mar 2002 08:12:21 GMT, Craig Prouse <cra...@apple.com>
(Craig Prouse) wrote in Message ID <B8B1A6E7.46A9F%cra...@apple.com>:
>According to the NTSB report the mixture was full rich.
IMO unless one is attempting to land at an airport above 5,000' in
elevation, positioning the mixture control to full rich is the correct
procedure for a PA28 approaching to land.
The Cherokee POH under emergency ENGINE POWER LOSS IN FLIGHT also
mentions placing the mixture into the full RICH position, carburetor
heat ON, and primer LOCKED. (The NTSB report doesn't mention the
position of the primer, but from experience, an unlocked primer pump
can substantially reduce engine power output.)
>When adding carb heat, the intake air becomes less dense. This
>effectively enriches the mixture even further. Perhaps the engine
>died because the mixture was too rich, rather than too lean, as
>you speculate?
>
>Craig (Prouse)
Your deduction seem consistent with the NTSB preliminary findings
(despite the fact that the pilot did not state that he felt the cause
of the loss of power was due to too lean a mixture in either of his
two messages on my ISP's nntp server nor in the NTSB report):
Excerpt from the NTSB preliminary report:
http://www.ntsb.gov/NTSB/brief.asp?ev_id=20020204X00167&key=1
"According to a Federal Aviation Administration inspector, an
engine run was performed after the accident. During the run, the
engine ran "normally," but the idle speed was set between 450 and
500 rpm, instead of the recommended 750 rpm. The inspector added
that with carburetor heat "ON" and the throttle in the idle
position, the engine "almost quit."
But, the pilot has not indicated that the engine "died" nor has he
stated that the propeller was stopped (in fact, I find the pilot's
account a trifle vague regarding that point: "it was engine failure
due to low RPM and carb heat."). Running the engine while stationary
does not prove that it would have died while the propeller was
rotating in a ~76 knot breeze as it surely was during the approach.
From the FAA's engine run, it would seem that the carburetor was not
operating/adjusted in conformance to the type certificate
specifications at the time of the mishap, and certainly was not when
the FAA inspector made the above engine run. While that may be the
result of a foreign matter obstruction in the fuel system, it also
could have other causes. I would think that the AI who signed off the
last annual inspection may share culpability in this mishap, but it is
the responsibility of the pilot to check that the engine idle speed is
correct before taking the aircraft aloft (despite that fact not being
mentioned in the POH check lists). ...
Because the pilot mentions:
... "but who in there right mind will let me take there [sic]
airplane to the FSDO? They go right through that thing, and will
surely ground it.....
My mechanic has a Cherokee 140, and he said NO WAY are you taking
my plane up there....I;ll never get it back..."
it tends to support the notion that perhaps substandard maintenance is
routinely being performed by that mechanic.
In any event, without quantified information regarding the atmospheric
temperature and dew point at the time of the mishap, it is not
possible to know if the pilot's application of carburetor heat during
the approach was appropriate and in accordance with the normal
procedures set forth in the POH:
"DESCENT
NORMAL ... The throttle should be set for 2500 RPM, mixture full
rich and maintain an airspeed of 122 KIAS. In case carburetor ice
is encountered apply full carburetor heat.
POWER OFF If a prolonged power off descent is to be made, apply
full carburetor heat prior to power reduction if icing conditions
are suspected. Throttle should be retarded and mixture control
leaned as required. Power response should be verified
approximately every 30 seconds by partially opening and then
closing the throttle(clearing the engine). When leveling off
enrichen mixture, set power as required and select carburetor heat
off unless carburetor icing conditions are suspected."
"APPROACH AND LANDING ... The mixture control should be kept in
full RICH position to insure maximum acceleration if it should be
necessary to open the throttle again. Carburetor heat should not
be applied unless there is an indication of carburetor icing,
since the use of carburetor heat causes a reduction in power which
may be critical in case of a go-around. Full throttle operation
with carburetor heat on can cause detonation.
... Normally ... use full flap and enough power to maintain the
desired airspeed and approach flight path. Mixture should be full
RICH. fuel on the fullest, and electric fuel pump ON. ..."
The Cherokee POH recommends the use of carburetor heat _only_ when
carburetor ice is suspected, during a _prolonged_ power off descent
(not approach), or in-flight loss of power emergency. In practice it
is very rare that carburetor heat is used at all in a Cherokee
(Calif.), but the temperature in Massachusetts in January could be a
factor. The pilot did not mention that he applied carburetor heat due
to indications of induction icing, so its application would _only_
seem appropriate in conjunction with the emergency procedure cited in
the POH or if ice was suspected.
With regard to making statements to an FAA inquisitor, er... inspector
(or a Highway Patrol officer, or any LEO for that matter) without your
legal council present, decline. Period. Request them to submit their
questions in writing. Tell them you intend to cooperate fully, and
offer to respond to their questions when your emotional state has
returned to normal, you have had time to reflect on the event, and you
have had benefit of legal council. As soon as possible make personal
notes (for your _exclusive_ use) of every detail that you are able to
recall.
I'm sure the AOPA Legal Plan will be useful, and it is important to be
fully educated in the particulars of the process:
http://netnow.micron.net/~kbumsted/
"Please Call the Tower: A Pilots Guide to
the FAA Enforcement Program will help
you achieve a more complete understanding
of the process, your rights and options
every step of the way in preserving your
hard-earned pilot and medical certificates."
Michael
Archers. Not just any flight school, though - a big impersonal flight
school, probably at a big towered airport, where the people behind the
desk don't even fly. The kind of place that's got a maintenance shop
with clean floors and jet airplanes. Yes, it's going to be expensive.
Yes, you may have a long drive. If it's the airport where the FSDO
is based, that's even better. If it's the flight school where the FAA
people rent planes, that's best.
Get checked out in the plane. Be prepared for a longer than usual
checkout - these places often have ridiculous checkout requirements.
Once you are checked out, rent the plane for a day and schedule the
checkride. Come in early in the morning to get the plane. Ask for
the logbooks - tell the person behind the counter that you are taking
a checkride and need to have them. Then take your 709 ride.
Yes, this is going to cost you money - but nothing like the money
hiring the aviation attorney will cost. New airplanes are pretty hard
to ground, since there really isn't much of a paper trail, everything
in the plane is factory installed, and the placards are all clear.
What's more, this will work. The fed will decide you are displaying
an attitude of compliance, he'll fly with you, he'll sign off the
paperwork and close the file, and all will be well with the world.
The reason this is causing you problems is because you are messing
with his nice clean world. You are keeping a file open that he would
like to close. To him, it seems like you are stalling, and that makes
him worried. It makes him think maybe you are really unsafe and
trying to get out of flying with him.
Hiring an aviation lawyer is about the worst thing you can do. You
can't win that game. All you are going to do is piss the fed off.
The moment you hire a lawyer, this stops being about safety and
becomes about enforcement. And guess what - he holds all the cards.
You have no due process of law rights. He can pull your ticket for
whatever reason he deems fair. Your only option is to go to an
administrative law judge (ALJ). The judge is bound by precedent to
accept the fed's interpretation of the rules. Even if the ALJ decides
the fed is totally wrong and reverses his decision, the FAA will only
appeal to the NTSB. The NTSB will overrule the ALJ. You will lose.
This is a game that nobody wins.
You will pay for your end of this process out of your own pocket. It
will probably swallow that entire insurance check. The fed will have
the legal department on his side, all paid with your tax dollars. You
will do this on your own time. The fed will do this on the clock,
while being paid with your tax dollars.
Michael
Mark S Conway <mark....@attbi.com> wrote in message news:<3C8A3451...@attbi.com>...
> --
mike regish
Stephen C. Robbins
primary concern of the FAA. Does anyone feel that being on a turn from
downwind to base, and NOT being able to make the field could be a concern??
A power failure in the pattern should be a no brainer. Turn to the field
and land. I suspect the FAA's concern is that he "just happened to notice"
he was 200 ft low on base. I still remember 30 years ago practicing making
the field with simulated engine out. It popped up again in a bi annual
review (made the field no problem) but the examiner said he did it cuz he
felt I was a bit low and probably would not make the field.
All things said, it seems Gene got some excellent advice and I suspect he
will be back up with us soon. Congrats on the great off field landing Gene
and good luck.
Steve
"Gene Seibel" <ge...@pad39a.com> wrote in message
news:e56j8.7352$P4.6...@newsread2.prod.itd.earthlink.net...
Ron Natalie
"Stephen C. Robbins" wrote:
>
> Was curious, most posters have commented on possible power management as the
> primary concern of the FAA. Does anyone feel that being on a turn from
> downwind to base, and NOT being able to make the field could be a concern??
No. While it is nice to try to be within gliding distance of an airport
at all times, it is not always possible. It's quite possible that he was
following other traffic. Nantucket also has some rather involved noise
abatement procedures.
Kent
was voluntarily surrendering his medical certificate. At the time he
thought he had to and in the spirit of cooperation he did. and looked what
it got him.
Mark S Conway
"it tends to support the notion that perhaps substandard maintenance
is
routinely being performed by that mechanic. "
oh larry, you were doing so good....but thanks anyway....
i take the checkride next week, with no certificate being yanked....
thanks to all the great info..... and not so great!!!
Mark
Roger Halstead
"Stephen C. Robbins" <srobbin...@netacc.net> wrote in message
news:3c8d...@news.netacc.net...
> Was curious, most posters have commented on possible power management as
the
> primary concern of the FAA. Does anyone feel that being on a turn from
> downwind to base, and NOT being able to make the field could be a
concern??
In mine? You'd make it about half way.
There are many high performance singles and light twins that just don't do
well with the "stay within gliding distance" of the runway philosophy.
> A power failure in the pattern should be a no brainer. Turn to the field
> and land.
That works very well with a Cherokee. At least it did with the one I used
to fly.
I always stayed close in and make rather steep power off descents. Friend
of mine used to like the flat, gentle final. We'd come in to land with me
flying and he'd be looking out and down, saying "Wer're a tad high, ain't we
Roger?". If he was flying I'd have my feet up in the seat and say, "We're
gettin' a tad low, ain't we Bill?"
If I had a power failure in the Deb when I extend the gear at the end of the
runway outbound, I can make the runway with little sweat...any later than
that and just take half the distance from your present location to the
runway.
>I suspect the FAA's concern is that he "just happened to notice"
> he was 200 ft low on base. I still remember 30 years ago practicing
making
> the field with simulated engine out. It popped up again in a bi annual
> review (made the field no problem) but the examiner said he did it cuz he
> felt I was a bit low and probably would not make the field.
>
I practice them about once a month.
Some years back I had an instructor pull the power in the pattern. I pulled
into a turn to get the airspeed down to best glide and pointed at the
runway.
With the gear up that sucker will come down, or slow down, but it ain't very
good at doing both. <:-)) I skirted the trailer park next to the
airport...which added a little distance (but I always figured that was a
poor place to land and besides, it'd probably ruin the relationship with the
neighbors) I was still high and it took a rather steep turn to line up with
the runway...This is where I hit the gear switch too. (and full flaps). It
took nigh onto half the runway to get it set down.
Sure I could always stay within gliding distance of the runway, but I'd
scare the crap out of my passengers with the the down wind to base and base
to final turns along with the rate of descent which makes it a devil to slow
down.
Also, if I kept the gear up I could easily make the field from any where in
the pattern, but extending the gear feels like some one stepped on the
brakes.
BTW, cycling the gear adds a lot more drag than with the gear down. So...it
all depends...If high enough you can raise the gear and "get the nose down".
If you are close and it looks like you aren't gonna make it, you don't touch
the switches. Best glide is near 120 MPH while Vy is about 90. Man, it's
difficult to keep that nose down when it looks like you aren't going to make
it...but as the speed stabilizes around 120 you can see the plane is
covering more ground per foot of descent.
I just have to remember to put the gear down when I get there. <:-))
--
Roger (K8RI EN73)
WWW.RogerHalstead.com
N833R, World's Oldest Debonair? S#CD-2
Dick Steel
should realize that the pig likes it!!!
Dick
IFLYFR8
exactly the way to go. It worked well for a friend who lost his A36 on
takeoff, after forgetting the autopilot would trim nose down as long as he
had it engaged during taxi. The only suggestion I might add would be to
schedule time with an instructor to discuss engine and carburetor systems
and carb ice and document the training time in the log book. It also
wouldn't hurt to fly with an instructor practicing dead stick landings so
you can ace that portion of the inevitable ride.
"Michael" <crwd...@hotmail.com> wrote in message
news:449a3d6e.02031...@posting.google.com...
Michael
No, in this particular case I have managed to learn from the mistakes
of others, not my own. But I have had friends who went through this.
Both passed their 709 rides and are happily flying.
One of them merely got poor initial taildragger instruction - the
problem has been remedied and he is now competent.
The other one is clearly unsafe. We all know that a fourth (sic!)
crash is only a matter of time.
Michael
Michael
No, in this particular case I have managed to learn from the mistakes
Kevin Brown
[excellent analysis of the situation deleted]
There's one other thing that everyone here should be aware of: the result
of FAA v Merrell was that the U.S. Circuit Court (I think...might have
been the Court of Appeals but I don't think so) ruled that the NTSB is
bound by the FAA's interpretation of the regulations AND THAT THE FAA
LAWYER PROSECUTING THE CASE IS THE FAA's OFFICIAL REPRESENTATIVE IN
THAT CAPACITY.
(Sorry about the all caps but that just *had* to be emphasized)
Bottom line is that the NTSB ALJ now has to say "yes, sir, whatever you
say sir" to whatever wild interpretation of the regs the FAA lawyer comes
up with at the time. And remember, the FAA lawyer's whole mission in life
is to win his case at all costs. Since he can now interpret the regs in
whatever way he sees fit (he doesn't even need to be consistent from case
to case!), you're GUARANTEED to lose at the NTSB level NO MATTER WHAT.
*This* is why, today, it doesn't matter *what* kind of trouble you're in
with the FAA, the only course of action that will work is to do whatever
it takes to make the FAA inspector happy, because once it gets into the
FAA's legal department it's all over with, and it's only a matter of time
(and your money) before that becomes clear.
I'm fortunate to not have personal experience with any of this, but it
*is* the logical conclusion of the Merrell ruling.
There are some people (even aviation attorneys!) who believe the FAA
won't abuse their power in that way. I have no such optimism.
--
Kevin Brown ke...@sysexperts.com
This is your .signature virus: < begin 644 .signature (9V]T8VAA(0K0z end >
This is your .signature virus on drugs: <>
Any questions?
Paul Baechler
<ke...@sysexperts.com> wrote:
> There's one other thing that everyone here should be aware of: the result
> of FAA v Merrell was that the U.S. Circuit Court (I think...might have
> been the Court of Appeals but I don't think so) ruled that the NTSB is
> bound by the FAA's interpretation of the regulations AND THAT THE FAA
> LAWYER PROSECUTING THE CASE IS THE FAA's OFFICIAL REPRESENTATIVE IN
> THAT CAPACITY.
> Bottom line is that the NTSB ALJ now has to say "yes, sir, whatever you
> say sir" to whatever wild interpretation of the regs the FAA lawyer comes
> up with at the time. And remember, the FAA lawyer's whole mission in life
> is to win his case at all costs. Since he can now interpret the regs in
> whatever way he sees fit (he doesn't even need to be consistent from case
> to case!), you're GUARANTEED to lose at the NTSB level NO MATTER WHAT.
"Circuit Court" is the former title of the federal courts of appeals.
The decision of a federal Court of Appeals is binding only in the
circuit for which it sits. It is not uncommon for different Courts of
Appeal to reach opposite conclusions about statutes or regulations.
Kevin Brown
> "Circuit Court" is the former title of the federal courts of appeals.
Ah, okay. Thanks.
> The decision of a federal Court of Appeals is binding only in the
> circuit for which it sits. It is not uncommon for different Courts of
> Appeal to reach opposite conclusions about statutes or regulations.
Right, but which Court gets jurisdiction depends on the geographic
location of the court whose decision is being appealed, right? So since
the NTSB court is in a single location (isn't it?), doesn't that mean
that only one Court of Appeals will get all FAA enforcement action cases?
Michael
> of FAA v Merrell was that the U.S. Circuit Court (I think...might have
> been the Court of Appeals but I don't think so) ruled that the NTSB is
> bound by the FAA's interpretation of the regulations AND THAT THE FAA
> LAWYER PROSECUTING THE CASE IS THE FAA's OFFICIAL REPRESENTATIVE IN
> THAT CAPACITY.
Right. I wasn't going to go into legal precedent, but since you did,
this is the correct precedent. Your explanation (which I have
snipped)
is also correct.
What you are sort of missing is that it's VERY rare for an aviation
matter to go that far up. In most cases the circuit court will not
review the NTSB's decision at all. That's right - you're NOT entitled
to a day in court, and will rarely get one. In theory, a significant
point of law must be at issue. In practice, the reason this
particular case was reviewed is that the apellant had political clout.
In the case of FAA v Merrell, the FAA's interpretation of its own
regulations was so egregiously wrong that even the NTSB refused to
affirm it. The FAA's position in the appeal was that the NTSB had to
accept the FAA's interpretation, and the court agreed. I can assure
you that had the NTSB ruled in favor of the FAA (as it usually does)
and Merrell appealed, the Circuit Court would not have heard the
appeal.
Thus while this case theoretically sets only a local precedent, in
practice the possibility of overturning it or even establishing
contrary precedent is essentially nil.
> There are some people (even aviation attorneys!) who believe the FAA
> won't abuse their power in that way.
Aviation attorneys MUST believe that, if only publicly. After all, if
they admit otherwise, who will ever retain one?
This is the key thing to be understood. Under the current system, the
holder of a certificate issued by the FAA has no legal rights as we
understand them. The FAA makes the rules, interprets the rules (on a
case-by-case basis with no requirement to be consistent from case to
case), and asesses the punishments. Certificates can (and have been!)
lost on a whim. You can't win.
Michael
Newps
where the FAA made the AIM regulatory. I know it's been done, but I wonder if
it is accessable online.
Fred Fillinger
>
> What you are sort of missing is that it's VERY rare for an aviation
> matter to go that far up. In most cases the circuit court will not
> review the NTSB's decision at all. That's right - you're NOT entitled
> to a day in court, and will rarely get one. In theory, a significant
> point of law must be at issue. In practice, the reason this
> particular case was reviewed is that the apellant had political clout.
> In the case of FAA v Merrell, the FAA's interpretation of its own
> regulations was so egregiously wrong that even the NTSB refused to
> affirm it. The FAA's position in the appeal was that the NTSB had to
> accept the FAA's interpretation, and the court agreed. I can assure
> you that had the NTSB ruled in favor of the FAA (as it usually does)
> and Merrell appealed, the Circuit Court would not have heard the
> appeal.
>
>
> This is the key thing to be understood. Under the current system, the
> holder of a certificate issued by the FAA has no legal rights as we
> understand them. The FAA makes the rules, interprets the rules (on a
> case-by-case basis with no requirement to be consistent from case to
> case), and asesses the punishments. Certificates can (and have been!)
> lost on a whim. You can't win.
Under what circumstances can a U.S. Court of Appeals refuse to hear a
case? They can rule on a motion to dismiss on procedural grounds, but
otherwise I believe you're thinking of the Supreme Court.
In the Merrell case, the pilot clearly erred; you don't comply with a
clearance issued to another aircraft. The FAA felt very strongly that
a precedent would have been set shifting too much of a burden to ATC.
The NTSB literally concluded that "everyone makes mistakes," and
forgave the pilot for "mishearing" a clearance. Not through the cabin
speaker of a loud single, but within an airline cockpit staffed by 2
ATP's. And so argued by FAA.
And how does the appellant, the FAA, have "political clout" with a
nonpolitical judiciary? If they had any with the political functions
within the White House, it isn't working lately.
Fred F.
Rick Cremer
Yes it is.
>> Can you pull up any part of a case where the FAA made the AIM
regulatory.<<
Yes you can.
>> I wonder if it is accessable online.<<
Yes it is.
Best
Rick Cremer
"Newps" <scn...@attbi.com> wrote in message
news:3C98CB11...@attbi.com...
Kevin Brown
> Under what circumstances can a U.S. Court of Appeals refuse to hear a
> case? They can rule on a motion to dismiss on procedural grounds, but
> otherwise I believe you're thinking of the Supreme Court.
If the Court of Appeals refuses to hear a case, who's going to slap them
if they're wrong in doing so?
> And how does the appellant, the FAA, have "political clout" with a
> nonpolitical judiciary? If they had any with the political functions
> within the White House, it isn't working lately.
Well, the White House is different now than it was then. And I was
interpreting "political clout" to mean "personal connections".
But the FAA will have "political clout" over the Court of Appeals if
any member of the Court of Appeals happens to be a pilot, right?
Kevin Brown
> ke...@sysexperts.com (Kevin Brown) wrote
> > There's one other thing that everyone here should be aware of: the result
> > of FAA v Merrell was that the U.S. Circuit Court (I think...might have
> > been the Court of Appeals but I don't think so) ruled that the NTSB is
> > bound by the FAA's interpretation of the regulations AND THAT THE FAA
> > LAWYER PROSECUTING THE CASE IS THE FAA's OFFICIAL REPRESENTATIVE IN
> > THAT CAPACITY.
>
> Right. I wasn't going to go into legal precedent, but since you did,
> this is the correct precedent. Your explanation (which I have
> snipped) is also correct.
>
> What you are sort of missing is that it's VERY rare for an aviation
> matter to go that far up. In most cases the circuit court will not
> review the NTSB's decision at all.
I'm not surprised by this. But it's not the Circuit Court that matters
here, but the NTSB itself. That the Circuit Court won't even bother to
look at most cases appealed from the NTSB level just makes the NTSB's
decision that much more binding, and makes the result of the Merrell
case that much more important and chilling.
> That's right - you're NOT entitled
> to a day in court, and will rarely get one. In theory, a significant
> point of law must be at issue. In practice, the reason this
> particular case was reviewed is that the apellant had political clout.
Yeah, that figures.
> In the case of FAA v Merrell, the FAA's interpretation of its own
> regulations was so egregiously wrong that even the NTSB refused to
> affirm it. The FAA's position in the appeal was that the NTSB had to
> accept the FAA's interpretation, and the court agreed. I can assure
> you that had the NTSB ruled in favor of the FAA (as it usually does)
> and Merrell appealed, the Circuit Court would not have heard the
> appeal.
No doubt.
> Thus while this case theoretically sets only a local precedent, in
> practice the possibility of overturning it or even establishing
> contrary precedent is essentially nil.
Right. But my point is that the situation is even worse than that, namely
that while it used to be the case that the NTSB would occasionally find
against the FAA, those days are gone. This ruling forces the NTSB to
side with the FAA *every time* no matter what it might actually think
of the FAA's interpretation. So if you know that you're going to lose
when you get to the NTSB, and the NTSB is the only "independent" review
of the case you're going to get, then you may as well not even start
down the path of a certificate action: all that will happen is that
you'll pay a ton of money and STILL lose. And worse, you'll now have
a pissed-off FAA to contend with, so the consequences are likely to be
much worse for you (even if you *didn't* have to pay the legal costs)
than they would be if you were to simply comply with whatever they ask
(or negotiate yourself a more reasonable deal with the inspector).
> > There are some people (even aviation attorneys!) who believe the FAA
> > won't abuse their power in that way.
>
> Aviation attorneys MUST believe that, if only publicly. After all, if
> they admit otherwise, who will ever retain one?
>
> This is the key thing to be understood. Under the current system, the
> holder of a certificate issued by the FAA has no legal rights as we
> understand them.
No rights at all, I'd say. Only "privileges" which can be revoked
at the FAA's whim. A situation which, I might add, is in *direct*
violation of the U.S. Constitution.
> The FAA makes the rules, interprets the rules (on a
> case-by-case basis with no requirement to be consistent from case to
> case), and asesses the punishments. Certificates can (and have been!)
> lost on a whim. You can't win.
Right.
Which means there is only one possible solution: get pilots to
start working for the FAA as inspectors. Since inspectors are the
frontline guys and the rest of the process is (from the discussion
above) "automatic", it's the decision of the inspector that counts.
Put aviation-friendly people in the inspector positions and the problem
changes dramatically for the better (though the situation's Constitutional
standing remains as bad as ever).
Guess there's not much of a chance of that happening, though, is there?
Rick Cremer
changes dramatically for the better (though the situation's Constitutional
standing remains as bad as ever).<<
Gee, makes me glad now that I did my aviation career as an inspector and not
just one of you pilots. <go> Please do continue this thread however, I'm
enjoying the discussion. Although I don't think you know what you're talking
about.
Best
"Kevin Brown" <ke...@sysexperts.com> wrote in message
news:knva7a...@dimwit.sysexperts.com...
Robert M. Gary
about the FARs are usually FAA (FSDO) employees.
The following is a REAL converstion with a FSDO pilot examiner. The pilot
needed the checkride to reobtain his medical after some leg work.
Pilot: "So, will you be able to be PIC since I don't have a medical, right?"
FSDO: "Uh, no we aren't allowed to server as PIC, my supervisor made that
clear to me"
Pilot: "But I can't get a medical until you ok my flying (with my foot)
and therefor am not legal to be PIC"
FSDO: "Ok, let me talk to my supervisor".
Next day...
FSDO: "Ok, my supervisor said I can't be PIC for the whole flight but
I can be PIC if something goes wrong and I have to take over."
Pilot: "Uh, ok sounds good (knowing that logic will do nothing but cause
problems for his checkride)".
So the flight will be made with the FSDO pilot examiner, and a non-medical
pilot. The flight will be WITHOUT a legal PIC with the blessing of the FAA!!!!!
crwd...@hotmail.com (Michael) wrote in message > This is the key thing to be understood. Under the current system, the
Rick Cremer
Best
"Robert M. Gary" <rm...@my-deja.com> wrote in message
news:4252c371.02032...@posting.google.com...
Gary L. Drescher
test even though there's someone else aboard, because 61.74(c) exempts the
exam flight from the carriage-of-passengers limitation for student pilots.
But I don't see how 61.47 addresses Robert's scenario, where the pilot
lacked a current medical certificate and therefore couldn't be PIC, with or
with out a passenger.
--Gary
"Rick Cremer" <rcr...@compuserve.com> wrote in message
news:a7b4c2$s3b$1...@suaar1ac.prod.compuserve.com...
Kevin Brown
> >>Put aviation-friendly people in the inspector positions and the problem
> changes dramatically for the better (though the situation's Constitutional
> standing remains as bad as ever).<<
>
> Gee, makes me glad now that I did my aviation career as an inspector and not
> just one of you pilots. <go>
Well, seriously, don't you think the fact that you were also a pilot
gave you some insight into what the people you were regulating were
going through, and therefore gave you the ability to be wiser in the
way you carried out your job?
> Please do continue this thread however, I'm
> enjoying the discussion. Although I don't think you know what you're talking
> about.
Well, it's possible that what I write are merely the ravings of a paranoid
lunatic, but I'd rather be paranoid and keep my certificate than not be
paranoid and lose it as a result, if that's okay with you. :-)
Fred Fillinger
>
> On Wed, 20 Mar 2002 20:07:46 GMT, Fred Fillinger <fill...@ameritech.net> wrote:
> > Under what circumstances can a U.S. Court of Appeals refuse to hear a
> > case? They can rule on a motion to dismiss on procedural grounds, but
> > otherwise I believe you're thinking of the Supreme Court.
>
> If the Court of Appeals refuses to hear a case, who's going to slap them
> if they're wrong in doing so?
I don't know, the American Bar Association? The Congress in
impeachment proceedings? I worked for 30 yrs in fed civil/crim law
enforcement, and never read/heard of such a thing. Look up the
Federal Rules of Civil Procedure, or whatever called, and come back
with cited provision. Like a unilateral dismissal order can say, we
read the trial court's decision, and don't see the need the need to
hear an appeal.
> > And how does the appellant, the FAA, have "political clout" with a
> > nonpolitical judiciary? If they had any with the political functions
> > within the White House, it isn't working lately.
>
> Well, the White House is different now than it was then. And I was
> interpreting "political clout" to mean "personal connections".
>
> But the FAA will have "political clout" over the Court of Appeals if
> any member of the Court of Appeals happens to be a pilot, right?
Subject to answer above. And you'd have a hard time finding an
attorney who'd claim that these justices are easily biased by nonsense
like that. In an extreme example and just for fun, ask an attorney if
it would be productive, in a criminal appeal of a rape case, to ask
that a female justice recuse herself.
Fred F.
Newps
matters, then it is. Could someone post a link to a case where the FAA
introduced the AIM and had it made effectively regulatory. Would be nice to
bookmark for the future.
Kevin Brown
> Some knotheads claim the AIM is not regulatory. And I 'spose it ain't, until it
> matters, then it is.
The AIM *itself* claims that it's not regulatory. From paragraph (a)
subparagraph (4) of the "Flight Information Public Policy" section
(at the beginning of the AIM):
"This publication, while not regulatory, provides information which
reflects examples of operating techniques and procedures which may be
requirements in other federal publications or regulations. It is made
available solely to assist pilots in executing their responsibilities
required by other publications".
R i i i i g h t ...
So I guess the AIM isn't regulatory as a whole (else it would never
contradict itself with such a statement, and we all know the FAA would
*never* allow that, right?), only for those parts that the FAA decides
it is, and only when the FAA decides it should be...
Fred Fillinger
>
> I'm not surprised by this. But it's not the Circuit Court that matters
> here, but the NTSB itself. That the Circuit Court won't even bother to
> look at most cases appealed from the NTSB level just makes the NTSB's
> decision that much more binding, and makes the result of the Merrell
> case that much more important and chilling.
Asked and answered on "won't even bother to look" part. What's this
"chilling" stuff? Maybe you're referring to the Sport Aviation
article on the Merill case? Classic lawyer advocacy. Throw enough
trees at the reader and hope they won't see the forest. There was
nothing new in the Merill decision that I can see, as NTSB has
considered FAA's right to interpret rules as they see fit many times
and conceded it. The case involved an unusual fact pattern and hinted
of a food fight at trial. So much so the NTSB said (twice - FAA
petitioned for rehearing) it's OK to "mishear" a clearance, as even
professional pilots "make mistakes." That would sure work for us
private pilots in about any violation case. I thought I could squeeze
a takeoff in front of the guy on short final. So I made a mistake. I
ain't even an ATP. FAA didn't like that for a precedent and appealed
to the DC Circuit.
> Which means there is only one possible solution: get pilots to
> start working for the FAA as inspectors.
Great idea. Only taxpayers can work for IRS. Law abiding citizens
for FBI. Seriously, with 25 yrs. supervising federal law enforcement
employees, any anti-agency bias for a silly reason like being a pilot
is rare. Including bias in the opposite, as objectivity is the
desired standard, and either bias is dealt with. Our field has its
"snitches" to FSDO. On only one occasion recently did FAA react to
the violation as warranting commitment of too-few resources. It's so
easy to fault gov't, at times deservedly, but also erroneously if you
don't know how it really works.
Fred F.
Fred Fillinger
>
> I'm not surprised by this. But it's not the Circuit Court that matters
> here, but the NTSB itself. That the Circuit Court won't even bother to
> look at most cases appealed from the NTSB level just makes the NTSB's
> decision that much more binding, and makes the result of the Merrell
> case that much more important and chilling.
Asked and answered on "won't even bother to look" part. What's this
"chilling" stuff? Maybe you're referring to the Sport Aviation
article on the Merill case? Classic lawyer advocacy. Throw enough
trees at the reader and hope they won't see the forest. There was
nothing new in the Merill decision that I can see, as NTSB has
considered FAA's right to interpret rules as they see fit many times
and conceded it. The case involved an unusual fact pattern and hinted
of a food fight at trial. So much so the NTSB said (twice - FAA
petitioned for rehearing) it's OK to "mishear" a clearance, as even
professional pilots "make mistakes." That would sure work for us
private pilots in about any violation case. I thought I could squeeze
a takeoff in front of the guy on short final. So I made a mistake. I
ain't even an ATP. FAA didn't like that for a precedent and appealed
to the DC Circuit.
> Which means there is only one possible solution: get pilots to
> start working for the FAA as inspectors.
Great idea. Only taxpayers can work for IRS. Law abiding citizens
Larry Dighera
(Kevin Brown) wrote in Message ID
<47fb7a...@dimwit.sysexperts.com>:
>On Thu, 21 Mar 2002 01:28:44 GMT, Newps <scn...@attbi.com> wrote:
>> Some knotheads claim the AIM is not regulatory. And I 'spose it ain't, until it
>> matters, then it is.
>
>The AIM *itself* claims that it's not regulatory. From paragraph (a)
>subparagraph (4) of the "Flight Information Public Policy" section
>(at the beginning of the AIM):
>
>"This publication, while not regulatory, provides information which
>reflects examples of operating techniques and procedures which may be
>requirements in other federal publications or regulations. It is made
>available solely to assist pilots in executing their responsibilities
>required by other publications".
>
>
>R i i i i g h t ...
Right. Apparently, airmen have responsibilities to comply with
"requirements in other federal publications or regulations [in
addition to Parts 91 & 61]." Perhaps that alludes to FAA Orders
7110.65, 8400.10, 2150.3A, 7610.4 and others, Advisory Circulars,
Airworthiness Directives, ... It seems that airmen need to know the
contents of, and comply with, all the regulations and requirements
published in all the documents which permit the NAS to function in an
orderly manner. While that makes sense, it probably isn't a realistic
expectation despite FAA instruction and testing of airman for
certification.
Fred Fillinger
>
> Some knotheads claim the AIM is not regulatory. And I 'spose it ain't, until it
> matters, then it is. Could someone post a link to a case where the FAA
> introduced the AIM and had it made effectively regulatory. Would be nice to
> bookmark for the future.
>
If you can find Del Balzo v. Distad, Order EA-3947. I would have the
link, but NTSB's search engine's got carb ice right now.
A mechanic violated a long list of Advisory Circular methods to fix a
pranged wing. Do we want to fly an aircraft where some mech fixed as
he damn well pleased, cause an AC ain't "regulatory?" In a similar
case I recall, with no Advisory Circular, FAA merely called on expert
testimony as to whether the repair could kill somebody.
Fred F.
Newps
Kevin Brown wrote:
>
>
> The AIM *itself* claims that it's not regulatory. From paragraph (a)
> subparagraph (4) of the "Flight Information Public Policy" section
> (at the beginning of the AIM):
That's just a dodge. A non regulatory document can be changed over lunch, just
because. Then when we haul your ass into court the first thing we do is enter it into
the record. Bingo, a document that means as much as the FAR's, and your chair isn't
even warm yet.
Peter Gottlieb
so if someone does not follow enough of it, and has no good explanation why,
it is considered bad practice of piloting skills.
"Newps" <scn...@attbi.com> wrote in message
news:3C99600A...@attbi.com...
Kevin Brown
> Kevin Brown wrote:
> >
> > I'm not surprised by this. But it's not the Circuit Court that matters
> > here, but the NTSB itself. That the Circuit Court won't even bother to
> > look at most cases appealed from the NTSB level just makes the NTSB's
> > decision that much more binding, and makes the result of the Merrell
> > case that much more important and chilling.
>
> Asked and answered on "won't even bother to look" part. What's this
> "chilling" stuff? Maybe you're referring to the Sport Aviation
> article on the Merill case? Classic lawyer advocacy.
Actually I was referring to http://www.avweb.com/articles/merrell/.
Is that the same article that you refer to here?
> Throw enough
> trees at the reader and hope they won't see the forest. There was
> nothing new in the Merill decision that I can see, as NTSB has
> considered FAA's right to interpret rules as they see fit many times
> and conceded it.
But that's different from being forced to agree with the FAA's
interpretation every time, isn't it? What I've read of the Merrell
case says that the NTSB now *must* agree with the FAA, no matter what.
An appeal on the basis of the FAA's interpretation being "arbitrary" or
"capricious" isn't going to work if the Circuit Court refuses to hear it,
and as noted elsewhere, they tend not to be interested in such appeals
unless there's some interesting matter of law involved.
> The case involved an unusual fact pattern and hinted
> of a food fight at trial. So much so the NTSB said (twice - FAA
> petitioned for rehearing) it's OK to "mishear" a clearance, as even
> professional pilots "make mistakes." That would sure work for us
> private pilots in about any violation case. I thought I could squeeze
> a takeoff in front of the guy on short final. So I made a mistake. I
> ain't even an ATP. FAA didn't like that for a precedent and appealed
> to the DC Circuit.
The NTSB had an answer to this:
The premise of our approach is this human beings make
mistakes, and there is no regulatory action, remedial or
otherwise, that can eliminate all mistakes.... [W]here
an inevitable error of perception does occur, the pilot
should not face sanction if he has acted responsibly and
prudently thereafter....
and
If a pilot makes a mistake and mishears a clearance or
ATC direction, follows all prudent procedures that would
expose the mistake (e.g., reads back the clearance), and
then acts on that mistaken understanding having heard
no correction from ATC, the regulatory violation will be
excused if that mistake is not shown to be a result of
carelessness or purposeful failure of some sort.
What's the problem with that? If the FAA can show that the airman in
question failed to act prudently, was careless, committed the action on
purpose, or failed to act prudently afterwards, then the NTSB will rule
in their favor. After all, that *is* what "innocent until proven guilty"
is all about, isn't it? Do you believe that this simple maxim shouldn't
apply to airmen the way it applies to everyone else?
The Circuit Court seems to fixate on the fact that Merrell had no
"reasonable explanation" (such as radio failure) for his failure to
"properly hear" the clearance from ATC, and seems to rule against him
largely on this basis. But who among us here believes that simple human
error requires, or even *has*, a "reasonable explanation"? Do you?
Who here believes that making the regulations less forgiving is an
effective way of reducing the number of instances of human error?
The FAA obviously does, as stated in the Circuit Court's decision in
the Merrell case. Do you?
And just because the FAA had been overruled by the NTSB in the
Merrell case doesn't mean that they would be overruled by the NTSB
in all subsequent cases! You would prefer that everybody be held
to a "no mistakes" standard? Because that's the only alternative,
and it's the alternative that we now have to deal with. This kind of
thinking is *exactly* why product liability is such a mess these days
(manufacturers and individuals are held to a "no mistakes" standard).
Do you think that people are machines that, when they make an error,
are thus shown to be flawed and must be punished for it? Don't you
realize where that train of thought leads?
Just because the FAA's position on this issue has always been one of
"no mistakes" doesn't mean that the FAA's position is reasonable, even
when it hides behind the cry of "public safety!". The whole *point*
behind having cases like this go to the NTSB is for the NTSB to act as
a check on the FAA, to provide at least *some* level of justice in an
arena in which the FAA is otherwise the "judge, jury, and executioner".
The Merrell case turns that on its head.
And you wonder why some of us have an "anti-agency bias"??
Ron Rapp
wrote:
>Right. Apparently, airmen have responsibilities to comply with
>"requirements in other federal publications or regulations [in
>addition to Parts 91 & 61]." Perhaps that alludes to FAA Orders
>7110.65, 8400.10, 2150.3A, 7610.4 and others, Advisory Circulars,
>Airworthiness Directives, ... It seems that airmen need to know the
>contents of, and comply with, all the regulations and requirements
>published in all the documents which permit the NAS to function in an
>orderly manner. While that makes sense, it probably isn't a realistic
>expectation despite FAA instruction and testing of airman for
>certification.
It's not realisitc. And I don't think it makes sense, because you're
referring to thousands of pages of data, perhaps tens of thousands. I
don't even know how one would determine what "all the regs and
requirements" are, since as you noted, they're not all specifically
spelled out.
The problem is that this allows the FAA to bust anyone at anytime for
anything no matter how big or small.
If there are enough pages of rules and regulations, then it's going to
be impossible for anyone to ever make a flight without violating one
of them. We're spending so much time fighting the paperwork (or
living in fear of it) that it gets in the way of aviation safety.
--Ron
Dave Stadt
Ron Rapp <ron...@hotmail.com.nospam.please> wrote in message
news:3c9a2b25...@news.west.cox.net...
Even if you do follow all regulations as written the FAA can just interpret
as they see fit. One has no recourse.
Fred Fillinger
>
> But that's different from being forced to agree with the FAA's
> interpretation every time, isn't it? What I've read of the Merrell
> case says that the NTSB now *must* agree with the FAA, no matter what.
> An appeal on the basis of the FAA's interpretation being "arbitrary" or
> "capricious" isn't going to work if the Circuit Court refuses to hear it,
> and as noted elsewhere, they tend not to be interested in such appeals
> unless there's some interesting matter of law involved.
I give up arguing whether a court can refuse to hear an appeal if it
will cut into their golfing afternoons, or the case just isn't
interesting. *Must* agree with FAA is not the rule. Still must be
reasonable, and the standard is abuse of discretion. Forget the
legalese. As court noted, the pilot could not argue what he would
have done differently, had FAA published a list of circumstances
permitting one to "mishear" a clearance.
What sensible exception would there be to hearing and precisely
reading back another guy's clearance? Should it be distinguished from
botching an odd clearance that is yours? Is it different where it
involves an airline crew - plural? What's the proper agency action
against a controller who "mishears" my clear but erroneous readback?
You're arguing to absolve the pilot, but what of the controller safely
on the ground and be justice?
> ...
> The NTSB had an answer to this:
>
> The premise of our approach is this human beings make
> mistakes, and there is no regulatory action, remedial or
> otherwise, that can eliminate all mistakes.... [W]here
> an inevitable error of perception does occur, the pilot
> should not face sanction if he has acted responsibly and
> prudently thereafter....
>
> and
>
> If a pilot makes a mistake and mishears a clearance or
> ATC direction, follows all prudent procedures that would
> expose the mistake (e.g., reads back the clearance), and
> then acts on that mistaken understanding having heard
> no correction from ATC, the regulatory violation will be
> excused if that mistake is not shown to be a result of
> carelessness or purposeful failure of some sort.
>
> What's the problem with that?
Works if applied to me. Maybe even for all the other guys at a busy
airport, "mishearing" tower instructions and turning collision course
toward me. I can yank and bank to evade a Lear 55 with the best.
> After all, that *is* what "innocent until proven guilty"
> is all about, isn't it? Do you believe that this simple maxim shouldn't
> apply to airmen the way it applies to everyone else?
Innocent until proven guilty does not apply to civil law. But for
your info, fed attorneys have told me they wouldn't mind if it were
your way. They'd have full control of the sandbox at trial, net gain
in victories.
> Who here believes that making the regulations less forgiving is an
> effective way of reducing the number of instances of human error?
> The FAA obviously does, as stated in the Circuit Court's decision in
> the Merrell case. Do you?
I believe selective, heavy-handed law enforcement is unproductive.
ATC comm flubs happen every day. There was no suggestion in Merrell
that a hazard was created. Even if a degree of hazard, at a tower
they often chew out and move on.
> The whole *point*
> behind having cases like this go to the NTSB is for the NTSB to act as
> a check on the FAA, to provide at least *some* level of justice in an
> arena in which the FAA is otherwise the "judge, jury, and executioner".
They're no check on FAA. A safety agency ruling on alleged safety
violations, miffed that not all their safety recommendations are
adopted by FAA. Read other NTSB cases. Like on min safe altitude,
where the only witness to alleged 400AGL is an ordinary citizen, so
they let FAA argue 91.119(a) because the guy's engine could have
quit. A clear hazard to people and property down there. Catch-22.
Fred F.
Dave Stadt
Fred Fillinger <fill...@ameritech.net> wrote in message
news:3C9A5669...@ameritech.net...
> Kevin Brown wrote:
> >
> > But that's different from being forced to agree with the FAA's
> > interpretation every time, isn't it? What I've read of the Merrell
> > case says that the NTSB now *must* agree with the FAA, no matter what.
> > An appeal on the basis of the FAA's interpretation being "arbitrary" or
> > "capricious" isn't going to work if the Circuit Court refuses to hear
it,
> > and as noted elsewhere, they tend not to be interested in such appeals
> > unless there's some interesting matter of law involved.
>
> I give up arguing whether a court can refuse to hear an appeal if it
> will cut into their golfing afternoons, or the case just isn't
> interesting. *Must* agree with FAA is not the rule. Still must be
> reasonable, and the standard is abuse of discretion. Forget the
> legalese. As court noted, the pilot could not argue what he would
> have done differently, had FAA published a list of circumstances
> permitting one to "mishear" a clearance.
>
> What sensible exception would there be to hearing and precisely
> reading back another guy's clearance? Should it be distinguished from
> botching an odd clearance that is yours? Is it different where it
> involves an airline crew - plural? What's the proper agency action
> against a controller who "mishears" my clear but erroneous readback?
> You're arguing to absolve the pilot, but what of the controller safely
> on the ground and be justice?
It has been ruled that if a pilot incorrectly reads back a clearance and the
controller knows there has been a mistake in the read back but says nothing
it is the pilots fault. The agency action is against the pilot if a
controller mishears your clear but erroneous readback.
Paul Baechler
<ke...@sysexperts.com> wrote:
> On Wed, 20 Mar 2002 17:13:53 -0500, Rick Cremer <rcr...@compuserve.com>
> wrote:
> > >>Put aviation-friendly people in the inspector positions and the problem
> > changes dramatically for the better (though the situation's Constitutional
> > standing remains as bad as ever).<<
> >
> > Gee, makes me glad now that I did my aviation career as an inspector and not
> > just one of you pilots. <go>
>
> Well, seriously, don't you think the fact that you were also a pilot
> gave you some insight into what the people you were regulating were
> going through, and therefore gave you the ability to be wiser in the
> way you carried out your job?
Kevin, do you have any idea of the minimum experience requirements for
an inspector? (Hint: there's an open continuous job announcement for
Aviation Safety Inspector.)
Michael
> case? They can rule on a motion to dismiss on procedural grounds
Of course. The FAA ALWAYS makes such a motion when an NTSB decision
is appealed by an airman. It is almost always granted. The supreme
court can refuse to hear a case out of hand. The effect is the same -
the difference is procedural, not substantive.
> In the Merrell case, the pilot clearly erred
That is exactly correct - the pilot erred. There was absolutely no
intent to violate any regulation or cause an unsafe condition, and
nobody claimed otherwise.
The NTSB saw nothing to be gained by punishing someone for making an
honest mistake. The FAA felt otherwise, and strongly enough to fight
it out. That tells you everything you need to know about the FAA.
> And how does the appellant, the FAA, have "political clout" with a
> nonpolitical judiciary?
There are only two kinds of people who profess belief in a
nonpolitical judiciary - the extremely naive and lawyers who know
better but pretend not to.
Michael
Kevin Brown
> I give up arguing whether a court can refuse to hear an appeal if it
> will cut into their golfing afternoons, or the case just isn't
> interesting. *Must* agree with FAA is not the rule. Still must be
> reasonable, and the standard is abuse of discretion. Forget the
> legalese. As court noted, the pilot could not argue what he would
> have done differently, had FAA published a list of circumstances
> permitting one to "mishear" a clearance.
That the pilot would not have done anything differently under different
rules isn't the issue. What's at issue is whether or not the pilot should
be held liable for what he did given the circumstances. The very *nature*
of human error is such that when it happens, the person erring CANNOT
do anything differently -- the circumstances simply don't allow for it.
If you hear one thing when someone says something else, that's something
you have no control over. You don't control when it happens, how
it happens, or the circumstances under which it happens. There are
mechanisms in place (the readback) to reduce the likelihood that this
will result in an error but those mechanisms aren't 100% foolproof.
One of the reasons those mechanisms aren't as foolproof as they could
be is *because* of the radio technology that the FAA forces us to use.
So in the case of botched clearances, some of the blame sits squarely
on the FAA.
Prosecuting someone who ends up screwing up despite those mechanisms is
the same thing as claiming that those mechanisms are foolproof. It's a
denial of reality, just like punishing someone for an honest mistake is
to deny the reality that people aren't perfect and will never be.
> What sensible exception would there be to hearing and precisely
> reading back another guy's clearance? Should it be distinguished from
> botching an odd clearance that is yours? Is it different where it
> involves an airline crew - plural? What's the proper agency action
> against a controller who "mishears" my clear but erroneous readback?
> You're arguing to absolve the pilot, but what of the controller safely
> on the ground and be justice?
What makes you think I'd treat these situations differently from one
another? They're all the same! Look, you seem to be proceeding on the
assumption that if an error occurs, someone must be punished for it.
That is *precisely* the thinking I'm arguing against. Just because
someone screws up doesn't mean they should be punished for it. Whether
they should or not depends on the circumstances. It's one thing if it's
a screwup that happens as a result of someone's willful negligence, and
another thing entirely if it happens DESPITE the reasonable efforts of
those involved. The former deserves punishment, the latter does not.
> > The NTSB had an answer to this:
> >
> > The premise of our approach is this human beings make
> > mistakes, and there is no regulatory action, remedial or
> > otherwise, that can eliminate all mistakes.... [W]here
> > an inevitable error of perception does occur, the pilot
> > should not face sanction if he has acted responsibly and
> > prudently thereafter....
> >
> > and
> >
> > If a pilot makes a mistake and mishears a clearance or
> > ATC direction, follows all prudent procedures that would
> > expose the mistake (e.g., reads back the clearance), and
> > then acts on that mistaken understanding having heard
> > no correction from ATC, the regulatory violation will be
> > excused if that mistake is not shown to be a result of
> > carelessness or purposeful failure of some sort.
> >
> > What's the problem with that?
>
> Works if applied to me. Maybe even for all the other guys at a busy
> airport, "mishearing" tower instructions and turning collision course
> toward me. I can yank and bank to evade a Lear 55 with the best.
It's one thing for someone to mishear an instruction once. It's another
thing entirely for someone to do so consistently. You seem to be
arguing that the latter will happen if we do not punish the former.
Is this really what you want to argue?
> > After all, that *is* what "innocent until proven guilty"
> > is all about, isn't it? Do you believe that this simple maxim shouldn't
> > apply to airmen the way it applies to everyone else?
>
> Innocent until proven guilty does not apply to civil law.
Well, then I guess it's just blind luck that "innocent until proven
guilty" applies to our "privilege" of driving, isn't it?
And don't confuse "innocent until proven guilty" with "proof beyond
reasonable doubt". The latter is required of criminal cases but not
civil cases, but the former applies to both civil and criminal cases,
else in lawsuits (civil law) the court would assume the defendant to be
"guilty" unless he could prove otherwise.
Furthermore, the citizens of the U.S. have the *right* to fly, according
to Title 49, Subtitle VII, Part A, subpart i, chapter 401, section 40103,
subsection (a)(1) of the U.S. civil code.
The U.S. government cannot remove the right of a U.S. citizen without
due process. To do so would be to violate the U.S. Constitution.
This is why you have the right to contest something as trivial as a
parking ticket in court, and you can even demand a trial by jury.
Furthermore, even if it *is* a civil proceeding, the 7th Amendment to
the Constitution guarantees the right of citizens to a trial by jury in
all civil cases.
Looks to me like the FAA's process is in violation of the Constitution.
> But for
> your info, fed attorneys have told me they wouldn't mind if it were
> your way. They'd have full control of the sandbox at trial, net gain
> in victories.
How would they have full control in a way that they do not already?
If they already have full control then the rules that apply to the
defendant don't matter one bit, hence no net gain in victories (unless
the change of rules encouraged people to try to go the distance in their
own defense).
> > Who here believes that making the regulations less forgiving is an
> > effective way of reducing the number of instances of human error?
> > The FAA obviously does, as stated in the Circuit Court's decision in
> > the Merrell case. Do you?
>
> I believe selective, heavy-handed law enforcement is unproductive.
> ATC comm flubs happen every day. There was no suggestion in Merrell
> that a hazard was created. Even if a degree of hazard, at a tower
> they often chew out and move on.
I agree. The Merrell case should never have happened to begin with.
But still, you didn't really answer the question. :-) :-)
> > The whole *point*
> > behind having cases like this go to the NTSB is for the NTSB to act as
> > a check on the FAA, to provide at least *some* level of justice in an
> > arena in which the FAA is otherwise the "judge, jury, and executioner".
>
> They're no check on FAA. A safety agency ruling on alleged safety
> violations, miffed that not all their safety recommendations are
> adopted by FAA. Read other NTSB cases. Like on min safe altitude,
> where the only witness to alleged 400AGL is an ordinary citizen, so
> they let FAA argue 91.119(a) because the guy's engine could have
> quit. A clear hazard to people and property down there. Catch-22.
Oh, I'll not disagree with you here, except to say that even if the
NTSB's role as a check on the FAA is weak (and much of this is the result
of them being forced to defer to the FAA's interpretation of the regs,
combined with them not having any ability to steer the regs), it still
beats not having any check at all.
Kevin Brown
> Kevin, do you have any idea of the minimum experience requirements for
> an inspector? (Hint: there's an open continuous job announcement for
> Aviation Safety Inspector.)
Ah, you're right! The requirements seem to depend on the job, but the
requirements for a GA Operations Inspector seem to include experience
as a pilot (and a decent amount of it, at that). Same for the Air
Carrier Operations Inspector.
So I stand corrected.
In fact, in looking over the various prerequisites for the various types
of inspector, it appears that the requirements are quite reasonable and
tend to make sense. I'm impressed.
(I looked at
http://jobs.faa.gov/announcement_detail.asp?vac_id=27152
if anyone's interested in reading this stuff themselves).
Okay, so it raises the obvious question of why an FAA inspector would
*want* to cause trouble for those he's responsible for overseeing without
having a damned good reason, when he's been there himself and knows what
kind of trouble he's causing.
(I'm not saying this happens very often. It almost certainly doesn't.
But you can't deny that it *does* happen from time to time)
Dick Steel
Dick
Dick Steel
Paul Baechler wrote:
I don't know about minimum qualifications,but I do know for a fact that we have a
maintainace inspector working out of our FSDO who only went to work for the FAA
after he had his IA yanked for falsifying maintainance records.What does that tell
you about the system?
Dick
Kevin Brown
> So I guess what your saying is that the AIM isn't regulatory except when it is.
Right...and when it is or isn't is solely up to the FAA at the time
of prosecution. If you were following the AIM at the time the incident
occurred, the FAA can claim that the AIM isn't regulatory and bust you
for the incident. Similarly, if you aren't following the AIM at the
time of the incident, the FAA can bust you for not following the AIM.
It wouldn't surprise me if they could get away with both of those
simultaneously (across two different cases, of course), with respect to
exactly the same part of the AIM.
Larry Dighera
(Kevin Brown) wrote in Message ID
>On Thu, 21 Mar 2002 16:49:01 -0800, Dick Steel <nob...@nowhere.nohow> wrote:
>> So I guess what your saying is that the AIM isn't regulatory except when it is.
>
>Right...and when it is or isn't is solely up to the FAA at the time
>of prosecution. If you were following the AIM at the time the incident
>occurred, the FAA can claim that the AIM isn't regulatory and bust you
>for the incident. Similarly, if you aren't following the AIM at the
>time of the incident, the FAA can bust you for not following the AIM.
>It wouldn't surprise me if they could get away with both of those
>simultaneously (across two different cases, of course), with respect to
>exactly the same part of the AIM.
The recommendations espoused in the AIM are largely a synthesis of
other regulatory documents. So, while the letter of the AIM is not
regulatory, its spirit is by virtue of those documents.
Fred Fillinger
>
> The very *nature*
> of human error is such that when it happens, the person erring CANNOT
> do anything differently -- the circumstances simply don't allow for it.
I remember you're the one who detests airline travel. Can't say as I
blame, now. You're on Northwest 1024, and the pilot flies a clearance
issued to American 94 (Merrell case). At 17,000 the other guy up
front must have been real busy too. But there's a principle here
based on human fallibility that you prefer. Stuart Smalley: and
thats...ok - but don't fly airlines.
> It's one thing if it's
> a screwup that happens as a result of someone's willful negligence, and
> another thing entirely if it happens DESPITE the reasonable efforts of
> those involved. The former deserves punishment, the latter does not.
Look, officer, I just wasn't looking at the speedometer. Safety
demands I keep my eyes on the road, no?
> > Works if applied to me. Maybe even for all the other guys at a busy
> > airport, "mishearing" tower instructions and turning collision course
> > toward me. I can yank and bank to evade a Lear 55 with the best.
>
> It's one thing for someone to mishear an instruction once. It's another
> thing entirely for someone to do so consistently.
Consistently?? FAA then must have statistics that show the first time
a guy does that he misses another aircraft; the second time he whacks
somebody. Or really don't no stats.
> And don't confuse "innocent until proven guilty" with "proof beyond
> reasonable doubt". The latter is required of criminal cases but not
> civil cases, but the former applies to both civil and criminal cases,
> else in lawsuits (civil law) the court would assume the defendant to be
> "guilty" unless he could prove otherwise.
No...guilt means crime. Civil cases mean whether defendant is liable
for damages. Or the landlord gotta get rid of the roaches. Court
doesn't presume anything. One needs 51% of the evidence/argument.
Unlike a criminal case, it's not smart for the defendant to put on no
case at all, if the plaintiff's case is bogus. 1% vs. 0% wins -
theoretically, motion to dismiss better.
> This is why you have the right to contest something as trivial as a
> parking ticket in court, and you can even demand a trial by jury.
Point me to a link that says that. Else there are many links to
state/county/city describing various court procedures. Except for
misdmeanors, traffic laws generally are "hybrid law" moving and
nonmoving, and rules don't favor the defendant much. If a cop says you
didn't come to a complete stop, you need an independent, more credible
witness. Pay the fine.
> Furthermore, even if it *is* a civil proceeding, the 7th Amendment to
> the Constitution guarantees the right of citizens to a trial by jury in
> all civil cases.
Your going score your first point on the bar exam one of these days,
Kevin. 7th Amendment applies to "suits at common law." FAA Reg.
violations are not common law.
> > But for
> > your info, fed attorneys have told me they wouldn't mind if it were
> > your way. They'd have full control of the sandbox at trial, net gain
> > in victories.
>
> How would they have full control in a way that they do not already?
> If they already have full control then the rules that apply to the
> defendant don't matter one bit, hence no net gain in victories....
Because when you (that is gov't) don't have the burden of proof, you
lose some control, for a variety of procedural reasons, like looser
rules of evidence. More important factor is that having the burden
forces investigative $$ spent to meet it. Spending the $$ can then
win more cases than are lost/dropped for lack of proof. If you've
locked up all the relevant evidence, all the party w/o the burden can
usually do is argue like hell. Can bore the judge. Like re traffic
cop above. Sorry, but 30 yrs exp in trial prep, expert testimony, and
settlement negotiations - burden both ways.
Fred F.
Kevin Brown
> The recommendations espoused in the AIM are largely a synthesis of
> other regulatory documents. So, while the letter of the AIM is not
> regulatory, its spirit is by virtue of those documents.
This is true. I don't want to open a can of worms, but which parts
are derived from those documents and which parts aren't? For instance,
the AIM talks about pattern entry procedures at uncontrolled airports,
but many believe those procedures to be recommendations only. How is
one to know for sure?
The problem is that the FAA may well claim those procedures to be
regulatory simply by their inclusion in the AIM, even if they *aren't*
derived from other regulatory documents.
Kevin Brown
> Kevin Brown wrote:
> >
> > The very *nature*
> > of human error is such that when it happens, the person erring CANNOT
> > do anything differently -- the circumstances simply don't allow for it.
>
> I remember you're the one who detests airline travel. Can't say as I
> blame, now. You're on Northwest 1024, and the pilot flies a clearance
> issued to American 94 (Merrell case). At 17,000 the other guy up
> front must have been real busy too. But there's a principle here
> based on human fallibility that you prefer. Stuart Smalley: and
> thats...ok - but don't fly airlines.
Harsh interpretation of the regs didn't prevent the Merrell incident
from happening, did it? Nuff said.
> > It's one thing if it's
> > a screwup that happens as a result of someone's willful negligence, and
> > another thing entirely if it happens DESPITE the reasonable efforts of
> > those involved. The former deserves punishment, the latter does not.
>
> Look, officer, I just wasn't looking at the speedometer. Safety
> demands I keep my eyes on the road, no?
If the officer is going to make me *choose* between looking at the
speedometer and keeping my eyes on the traffic, which do you think would
be better for safety?
> > > Works if applied to me. Maybe even for all the other guys at a busy
> > > airport, "mishearing" tower instructions and turning collision course
> > > toward me. I can yank and bank to evade a Lear 55 with the best.
> >
> > It's one thing for someone to mishear an instruction once. It's another
> > thing entirely for someone to do so consistently.
>
> Consistently?? FAA then must have statistics that show the first time
> a guy does that he misses another aircraft; the second time he whacks
> somebody. Or really don't no stats.
Not my fault they don't keep stats on stuff like this. They easily could.
ATC knows the callsigns of all the airplanes involved and keeps tapes of
the exchanges as well as the radar tapes. The FAA could *easily* hire
people for the purpose of going through the tapes and recording what
happened, or hire people whose purpose is to monitor the situation and
note any unusual activity. With ADS-B that might happen automatically.
That could be quite easily abused, of course (and this is one of the
reasons some people have concerns about ADS-B), but it's not impossible
to do.
> > And don't confuse "innocent until proven guilty" with "proof beyond
> > reasonable doubt". The latter is required of criminal cases but not
> > civil cases, but the former applies to both civil and criminal cases,
> > else in lawsuits (civil law) the court would assume the defendant to be
> > "guilty" unless he could prove otherwise.
>
> No...guilt means crime. Civil cases mean whether defendant is liable
> for damages.
Then what do you call revocation of someone's certificate? "Liability
for damages"?? Sounds like "guilt" to me...
> Or the landlord gotta get rid of the roaches. Court
> doesn't presume anything. One needs 51% of the evidence/argument.
> Unlike a criminal case, it's not smart for the defendant to put on no
> case at all, if the plaintiff's case is bogus. 1% vs. 0% wins -
> theoretically, motion to dismiss better.
>
> > This is why you have the right to contest something as trivial as a
> > parking ticket in court, and you can even demand a trial by jury.
>
> Point me to a link that says that.
Looks like it depends on the locality.
http://www.cookcountycourt.org/traffic_court/your_rights.html shows an
example of where you would have that right, but other localities seem
to differ with regard to this, at least for those cases where the only
penalty is a fine.
> Else there are many links to
> state/county/city describing various court procedures. Except for
> misdmeanors, traffic laws generally are "hybrid law" moving and
> nonmoving, and rules don't favor the defendant much. If a cop says you
> didn't come to a complete stop, you need an independent, more credible
> witness. Pay the fine.
Yeah, and the same thing is true in criminal cases, too, no? The cop
*is* a recognized witness, yes? But I'm not arguing that you need "proof
beyond reasonable doubt" in civil cases, only that the court isn't going
to find against the defendant if they fail to prove their innocence unless
the prosecution sufficiently proves their guilt (to whatever degree is
necessary, be it the 51% required in a civil case or beyond reasonable
doubt in a criminal case).
Whether you need 51% of the evidence/argument or 95% is independent of
whether the proceeding starts off assuming guilt or innocence. So for
civil proceedings, it seems to me that in the U.S., 51% is *still*
"innocent until proven guilty", just not as much as "proof beyond
reasonable doubt". The opposite, where guilt is presumed, means that the
*defense* has to prove innocence, either using the 51% rule or the "proof
beyond reasonable doubt". In other words, these two concepts (amount
of proof versus presumption of guilt/innocence) are orthogonal, yes?
> > Furthermore, even if it *is* a civil proceeding, the 7th Amendment to
> > the Constitution guarantees the right of citizens to a trial by jury in
> > all civil cases.
>
> Your going score your first point on the bar exam one of these days,
> Kevin. 7th Amendment applies to "suits at common law." FAA Reg.
> violations are not common law.
If the authority the FAA operates under isn't common (civil) law, and
it isn't criminal law, then what is it?
Whichever, the fact remains that flight is a *right* of U.S. citizens,
and the law itself acknowledges as much. Doesn't removal of a person's
rights require due process? If not, then at what point in the history
of the U.S. did that requirement disappear?
> > How would they have full control in a way that they do not already?
> > If they already have full control then the rules that apply to the
> > defendant don't matter one bit, hence no net gain in victories....
>
> Because when you (that is gov't) don't have the burden of proof, you
> lose some control, for a variety of procedural reasons, like looser
> rules of evidence.
Not sure I understand. Looser rules of evidence would make the
government's job of showing guilt easier, wouldn't it?
If the government doesn't have the burden of proof, then the defense
does, right? Doesn't that mean that the defense has to do all the work,
then? How does that relate to how much control the government has over
the situation? Wouldn't those two things be independent?
> More important factor is that having the burden
> forces investigative $$ spent to meet it. Spending the $$ can then
> win more cases than are lost/dropped for lack of proof.
But if the government is interested in winning cases (that's the job
of the FAA's prosecuting attorney, after all), then won't they still do
whatever it takes to win? Seems to me the only difference is how much
effort they have to expend. Looser rules means less effort they have
to expend in order to win, right?
> If you've
> locked up all the relevant evidence, all the party w/o the burden can
> usually do is argue like hell. Can bore the judge. Like re traffic
> cop above.
But the most powerful party is usually the one with all the evidence!
The side with the burden of proof is the side that's in need of the
evidence. The fact that the government is always the most powerful entity
combined with the fact that it's always in the role of the prosecution
(for our discussion, at any rate) means that the situation in which the
burden of proof is on the (less powerful) defense is the worst possible
situation, right? Isn't that exactly the situation we have with respect
to the FAA?
Don't you think that such a situation is *wrong*? Especially in light
of the fact that the entire POINT of the government is to protect the
rights of its citizens (who, on an individual level, are always less
powerful than the government)?
> Sorry, but 30 yrs exp in trial prep, expert testimony, and
> settlement negotiations - burden both ways.
I'll defer to your expertise on this, but I still don't understand how
it all ends up working the way you say it does...
Paul Baechler
<ke...@sysexperts.com> wrote:
> If the authority the FAA operates under isn't common (civil) law, and
> it isn't criminal law, then what is it?
Common law isn't civil law (by definition). Common law is the system of
jurisprudence, originating in England, which is based on judicial
precedent rather than statutory laws. Civil law is based on statutes.
Kevin Brown
The U.S. Constitution doesn't talk about anything called "civil law"
at all.
So let me get this straight: if the government wants to bypass
Constitutional protections (with the exception of those clauses in
which the Constitution explicitly says "Congress shall make no law..."),
all it has to do is create a type of law that the Constitution doesn't
address and then create laws of that type?
Dick Steel
Kevin Brown wrote:
There ya go,it's legal except when it isn't.
Dick
Paul Baechler
<ke...@sysexperts.com> wrote:
> The U.S. Constitution doesn't talk about anything called "civil law"
> at all.
>
> So let me get this straight: if the government wants to bypass
> Constitutional protections (with the exception of those clauses in
> which the Constitution explicitly says "Congress shall make no law..."),
> all it has to do is create a type of law that the Constitution doesn't
> address and then create laws of that type?
The US Government did not create civil law; it was well established at
the time of the Romans. Article I, Section 8 of the US Constitution
gives the Congress authority to make laws, the 7th amendment provides
that cases decided under common law will remain under common law on
appeal. If the writers of the Constitution had wanted to further deal
with civil law, they would have.
Kevin Brown
Given the founders' concern about freedom, rights, etc. (to such a
degree that they even state that one of the primary purposes of the
U.S. government is to protect the liberty of the people), I find it
difficult to believe that they would intentionally ignore an entire body
of law that, if misused, is just as capable of violating a person's
rights and removing a person's freedoms as those they did address,
especially in light of the 9th and 10th Amendments.
Nevertheless, even if they *had* addressed civil law in the Constitution,
my question is still valid: is it sufficient for Congress to create a new
type of law in order to be able to get away with bypassing Constitutional
protections? The arguments I'm seeing here say that the answer must be
"yes", for if the protections of the Constitution don't apply to civil
law, surely they cannot apply to any new type of law created?
Herb Martin
> are derived from those documents and which parts aren't? For instance,
> the AIM talks about pattern entry procedures at uncontrolled airports,
> but many believe those procedures to be recommendations only. How is
> one to know for sure?
>
Well, in that specific example the FAR technically makes
the 45 degree entry illegal for uncontrolled airports, unless
they have a other practices marked at that airport. <grin>
The FAR states:
§ 91.126 Operating on or in the vicinity of an airport in
Class G airspace.
(a) General. Unless otherwise authorized or required,
each person operating an aircraft on or in the vicinity of
an airport in a Class G airspace area must comply with
the requirements of this section.
(b) Direction of turns. When approaching to land at an
airport without an operating control tower in a Class G
airspace area -
(1) Each pilot of an airplane must make all turns of that
airplane to the left unless the airport displays approved
light signals or visual markings indicating that turns should
be made to the right, in which case the pilot must make
all turns to the right; and
"All turns" is very specific, with a left hand pattern the 45
degree entry is a "right turn" while all others are "left turns."
Apparently, people have been busted on this rule -- if not
for a 45 degree entry, then at least many miles from the
airport when they turned opposite it was determined to be
a "right base turn" or "a right turn to final."
Most everyone accepts that the above is just a poorly worded
restriction that doesn't "really" apply -- or does it?
Herb Martin, PP-SEL
(...and still a student pilot)
Try ADDS for great Weather too:
http://adds.aviationweather.noaa.gov/projects/adds
Rick Cremer
FAA can bust you for not following the AIM.<<
That is NOT correct. The AIM is NOT regulatory and can not be cited in an
enforcement action as the regulatory basis for the action. All enforcement
actions (i.e. Enforcement Investigative Reports - EIRs) MUST cite one or
more sections from Title 14 CFR and/or Title 49 USC. Guidance in the AIM can
be cited as an aggravating (or mitigating) circumstance as part of the
evidence package but can not be cited alone. Having been through the FAA's
Compliance and Enforcement school (both Basic and Advanced) and having
prepared many EIRs in my 35 year career in the FAA I can assure you that the
AIM is NOT regulatory.
Best
Rick Cremer
FAA Safety Inspector (Ret.)
Aviation regulatory and Enforcement Consultant
FAA Order 2130.3A Expert
"Kevin Brown" <ke...@sysexperts.com> wrote in message
news:gv1e7a...@dimwit.sysexperts.com...
Rick Cremer
you some insight into what the people you were regulating were going through,
and therefore gave you the ability to be wiser in the way you carried out
your job?<<
Yes, that's why I rarely took enforcement action against those I regulated
vice simply requiring some retraining or other minimal administrative action.
That includes pilots and mechanics who I knew actually violated some part of
a regulation but, in my opinion, would benefit more from some course action
other than a legal enforcement action. I never had our legal folks question
one of my recommendations.
Best
Rick Cremer
Airline Transport Pilot DC-9
Flight Instructor
Ground Instructor
Aircraft Dispatcher
A&P Mechanic
Air Traffic Controller
FA Safety Inspector (Ret.)
"Kevin Brown" <ke...@sysexperts.com> wrote in message
news:v3bb7a...@dimwit.sysexperts.com...
| On Wed, 20 Mar 2002 17:13:53 -0500, Rick Cremer <rcr...@compuserve.com>
wrote:
| > >>Put aviation-friendly people in the inspector positions and the problem
| > changes dramatically for the better (though the situation's
Constitutional
| > standing remains as bad as ever).<<
| >
| > Gee, makes me glad now that I did my aviation career as an inspector and
not
| > just one of you pilots. <go>
|
| Well, seriously, don't you think the fact that you were also a pilot
| gave you some insight into what the people you were regulating were
| going through, and therefore gave you the ability to be wiser in the
| way you carried out your job?
|
| > Please do continue this thread however, I'm
| > enjoying the discussion. Although I don't think you know what you're
talking
| > about.
|
| Well, it's possible that what I write are merely the ravings of a paranoid
| lunatic, but I'd rather be paranoid and keep my certificate than not be
| paranoid and lose it as a result, if that's okay with you. :-)
Kevin Brown
> >>Similarly, if you aren't following the AIM at the time of the incident, the
> FAA can bust you for not following the AIM.<<
>
> That is NOT correct. The AIM is NOT regulatory and can not be cited in an
> enforcement action as the regulatory basis for the action. All enforcement
> actions (i.e. Enforcement Investigative Reports - EIRs) MUST cite one or
> more sections from Title 14 CFR and/or Title 49 USC. Guidance in the AIM can
> be cited as an aggravating (or mitigating) circumstance as part of the
> evidence package but can not be cited alone. Having been through the FAA's
> Compliance and Enforcement school (both Basic and Advanced) and having
> prepared many EIRs in my 35 year career in the FAA I can assure you that the
> AIM is NOT regulatory.
But can't they claim a violation of 91.13 and cite failure to follow
the AIM as the reason it's a violation of 91.13? Wouldn't that give
the AIM regulatory status even if that's not said in so many words?
les_I...@waitforit.com
<rcr...@compuserve.com> wrote:
>>>Similarly, if you aren't following the AIM at the time of the incident, the
>FAA can bust you for not following the AIM.<<
>
>That is NOT correct. The AIM is NOT regulatory and can not be cited in an
>enforcement action as the regulatory basis for the action. All enforcement
>actions (i.e. Enforcement Investigative Reports - EIRs) MUST cite one or
>more sections from Title 14 CFR and/or Title 49 USC. Guidance in the AIM can
>be cited as an aggravating (or mitigating) circumstance as part of the
>evidence package but can not be cited alone. Having been through the FAA's
>Compliance and Enforcement school (both Basic and Advanced) and having
>prepared many EIRs in my 35 year career in the FAA I can assure you that the
>AIM is NOT regulatory.
>
>Best
>
>Rick Cremer
>FAA Safety Inspector (Ret.)
>Aviation regulatory and Enforcement Consultant
>FAA Order 2130.3A Expert
>
Jesus. Can this be accepted as definitive at last?
No more pissing contests?
G.R. Patterson III
Herb Martin wrote:
>
> Well, in that specific example the FAR technically makes
> the 45 degree entry illegal for uncontrolled airports, unless
> they have a other practices marked at that airport. <grin>
This is not true. The FAR states "when approaching to land", which means
when it's in the approach pattern. The 45 degree entry is not part of the
approach; it is the entry _to_ the approach. Otherwise you could argue
that an entire cross-sountry flight is "approaching to land."
George Patterson, N3162Q.
Peter Gottlieb
<les_I...@waitforit.com> wrote in message
news:3c9ddc17...@netnews.att.net...
In law, nothing is definitive.
And, like in many fields, the people who are reasonable, who have common
sense, are retiring.
les_I...@waitforit.com
Exactly what I said when I retired.
Rick Cremer
AIM as the reason it's a violation of 91.13?<<
A pilot could be cited for 91.13 (No person may operate an aircraft in a
careless or reckless manner so as to endanger the life or property of
another) and the AIM could be used as an item of aggravating evidence in
building the case. The NTSB law judges have said, in previous cases that they
"...recognize that the AIM...is not regulatory. It is advisory. But it's
very strong, positive advice." Also they've said "the AIM certainly
recommends, I know it's not regulatory, but certainly very strong
recommendation by the FAA".
Sometimes the use of the AIM does not work in favor of the FAA. In one case
the NTSB stated "He was, however, unaware of, and the general information in
AIM would not have advised him of the powerline intersecting the runway
threshold. In sum, we conclude that the Administrator has not proved specific
acts of carelessness and has not established that carelessness on
respondent's part is the only reasonable inference that can be drawn from the
evidence of record." In this case the NTSB found for the pilot and against
the FAA in a case involving the use of the AIM and 91.13.
The above quotes, made by Administrative Law Judges come from:
BARRY LAMBERT HARRIS, Acting Administrator, Federal Aviation Administration,
Complainant, v. ROBERT W. HAHN and WILLIAM C. BOURKE, Respondents NUMBER:
Order EA-3493; Dockets SE-9621, SE-9626;
BARRY LAMBERT HARRIS, Acting Administrator, Federal Aviation Administration,
Complainant, v. DENNIS SCHWANDT, Respondent NUMBER: Order EA-3465; Docket
SE-9547; and
ANTHONY JOHN DELCAVO, RESPONDENT NUMBER: Order EA-1025; Docket SE-3268
>>wouldn't that give the AIM regulatory status even if that's not said in so
many words?<<
No. The AIM, nor Advisory Circulars, are regulatory. Those documents are
advisory only. The FAA must, as I said, cite a regulation and it must stand
on its own merits in any enforcement action. The AIM, Advisory Circulars, FAA
Orders (e.g. PTSs) can be used to reinforce the FAA's allegations against an
airman but the NTSB will not necessarily find for Administrator in all cases
as I have shown above.
I hope this has helped clarify the issues.
Best
"Kevin Brown" <ke...@sysexperts.com> wrote in message
news:nd4k7a...@dimwit.sysexperts.com...
Rick Cremer
sense, are retiring<<
Or HAVE retired....<G>
"Peter Gottlieb" <pe...@NewYorkNERD.com> wrote in message
news:ANnn8.5165$n8....@nwrddc02.gnilink.net...
Kevin Brown
> >>wouldn't that give the AIM regulatory status even if that's not said in so
> many words?<<
>
> No. The AIM, nor Advisory Circulars, are regulatory. Those documents are
> advisory only. The FAA must, as I said, cite a regulation and it must stand
> on its own merits in any enforcement action. The AIM, Advisory Circulars, FAA
> Orders (e.g. PTSs) can be used to reinforce the FAA's allegations against an
> airman but the NTSB will not necessarily find for Administrator in all cases
> as I have shown above.
Okay, thanks, that makes sense.
I wonder if this has changed any in light of FAA v Merrell...
Rick Cremer
I don't think so Kevin. With respect to the NTSB's deferring to the FAA's
interpretation the Federal appeals court (FAC) ruled that deference "...does
not mean blind obedience. The agency's interpretation still must not be
"plainly erroneous or inconsistent with the regulation" it is interpreting."
In its decision the FAC the examined whether the FAA's interpretation was a
reasonable construction of its regulation including the FAA's interpretation
of the two subsections of section 91.123 that Merrell was charged with
violating.
The FAC went on to say that "There is no conflict between the FAA's
interpretation of subsections 91.123(b) and (e) and the language of section
91.123(a). The latter provision refers to "clarifications," not readbacks,
and the two are not the same. A request for clarification--which is mandatory
when a pilot is "uncertain" about his clearance--requires ATC to transmit an
affirmative clarifying response. If ATC fails to provide one, the pilot must
renew his request until one is forthcoming."
Finally, the FAC ruled that "Because the NTSB failed to defer to the FAA's
reasonable interpretation of its own regulations, we conclude that the
Board's ruling was not in accordance with law. We therefore grant the
petition for review, reverse the Board's decision, and remand the case for
further proceedings consistent with this opinion."
The FAA, as you may know, issued an Interpretive Rule on April 1, 1999 which
was based on the Merrell decision and clarified that "Pilots operating in
areas in which air traffic control is exercised are required by regulation to
comply with the clearances and
instructions of air traffic controllers except in very narrow circumstances."
The FAA put in writing the interpretation it had been using for years.
If you don't have a copy of that ruling I'll post it here. Let me know.
Best
"Kevin Brown" <ke...@sysexperts.com> wrote in message
news:s4hl7a...@dimwit.sysexperts.com...