Flying through known or forecast icing

"T o d d P a t t i s t" wrote in message
...
"Gary Drescher" wrote:

I think of the AIM as a layman's "interpretation" of the FAR's.

Sure, that's one way to think of it. But it's something else too: it's
also
official guidance from the FAA as to what the FARs mean. And that has to
figure into a court's appraisal of whether some proposed FAA
interpretation
of the FARs meets the standard of reasonableness.

I don't think of the AIM as either a layman's
"interpretation" of the FAR's or "official guidance from the
FAA as to what the FARs mean." Interpretations and official
guidance as to what the FAA thinks regulations mean come
from the FAA's Chief Counsel's Office.

Yes, that's another source. But (for example) when the AIM defines terms
that are used in the FARs but not defined in the FARs, then it's offering
pilots guidance as to what the FARs mean.

Moreover, I don't
think of any certificated pilot as a 'layman," there's way
too much training, study and testing for that label to apply
to pilots.

I took Matt to mean that we're laypersons with regard to matters of law.

--Gary

"T o d d P a t t i s t" wrote in message
...
"Gary Drescher" wrote:

Interpretations and official
guidance as to what the FAA thinks regulations mean come
from the FAA's Chief Counsel's Office.

Yes, that's another source.

Saying it's "another source" implies (at least to me) that
they are roughly equivalent sources of interpretation.
They aren't. If there's any conflict, the Chief Counsel's
interpretation overrides anything in the AIM.

Well, whether that's true or not is one of the main points of disagreement
that's come up in this thread.

My argument is that 1) by common sense, it would not meet the legal standard
of reasonableness for the FAA to publish an explicit definition in the AIM
(for example, the AIM's new definition of "known icing conditions", which
unambiguously excludes *forecast* conditions) and then have the Chief
Counsel insist that the legally valid interpretation of the term is
something else entirely; and 2) empirically, there seem to be no known cases
in which the FAA has ever even *tried* to bust a pilot for interpreting a
regulatory term in a way that irrefutably accords with the AIM's explicit
definition of that term.

For those reasons, I don't believe that the Chief Counsel has carte blanche
to "override" the AIM. But if you have evidence or arguments to the
contrary, I will gladly consider them.

--Gary

Gary Drescher wrote:
"George Patterson" wrote in message
news:lMBof.168$CL.5@trnddc04...

Matt Whiting wrote:


But isn't it the NTSB that usually makes the final determination on the
appeal?

Used to be that way. Congress added the possibility of an appeal to the
U.S. Appeals court some years ago.


George, I have a different understanding of the three branches' separation
of powers. Neither the administration nor the Congress has the
Constitutional authority to make a federal agency's decisions categorically
immune to judicial review. Congress may have formalized the appeal process
at some point, but I don't think it could have previously been the case that
NTSB decisions were exempt from all judicial appeal. The NTSB may formerly
have taken that position, but that didn't make it true. Was there ever a
case that an appeals court refused to hear on the grounds that NTSB
decisions were inherently unappealable?

It has been a long time since my high school American Government class,
but I thought that this only applied to constitional rights, not
so-called privileges. If your state pulls your driver's license, can
you really appeal that through the Federal court system?


Matt

"Matt Whiting" wrote in message
...
It has been a long time since my high school American Government class,
but I thought that this only applied to constitional rights, not so-called
privileges. If your state pulls your driver's license, can you really
appeal that through the Federal court system?

I suspect the (initial) appeal would be in state court rather than federal,
but there is certainly a judicial remedy if the denial of your license is
unreasonable. (The FAA, of course, is a federal agency, so no state courts
are involved.)

The so-called right vs. privilege distinction is beside the point, because
there is unquestionably a constitutional right to not have a privilege
unreasonably withheld. Your state could not, for example, deny you a
driver's license just because they don't like your race or religion. If they
tried, you could certainly get the courts to intervene.

--Gary

Gary Drescher wrote:

George, I have a different understanding of the three branches' separation
of powers. Neither the administration nor the Congress has the
Constitutional authority to make a federal agency's decisions categorically
immune to judicial review. Congress may have formalized the appeal process
at some point, but I don't think it could have previously been the case that
NTSB decisions were exempt from all judicial appeal. The NTSB may formerly
have taken that position, but that didn't make it true. Was there ever a
case that an appeals court refused to hear on the grounds that NTSB
decisions were inherently unappealable?

Absolutely. This lack of appeal to the judicial branch was a big bone of
contention for AOPA in the early 90s. The latest article I found recently in
AOPAs files describing this dates from 1994, so it was changed sometime after
that. A later Yodice (IIRC) article states that this was changed by decree of
Congress.

George Patterson
Coffee is only a way of stealing time that should by rights belong to
your slightly older self.

"George Patterson" wrote in message
news:bPKof.1392$eI5.1003@trnddc05...
Gary Drescher wrote:
Was there ever a case that an appeals court refused to hear on the
grounds that NTSB decisions were inherently unappealable?

Absolutely.

Perhaps I'm mistaken then. Do you have a pointer to the case?

Thanks,
Gary

Gary Drescher wrote:

Perhaps I'm mistaken then. Do you have a pointer to the case?

Cases. Not tonight. If you're in a hurry, search the AOPA site for "NTSB
appeal". Look for older articles.

George Patterson
Coffee is only a way of stealing time that should by rights belong to
your slightly older self.

"George Patterson" wrote in message
news:gjNof.1095$7f3.16@trnddc01...
Gary Drescher wrote:

Perhaps I'm mistaken then. Do you have a pointer to the case?

Cases. Not tonight. If you're in a hurry, search the AOPA site for "NTSB
appeal". Look for older articles.

Sorry, I haven't been able to find any example of the sort I asked about
(namely, an appeals court refusing to hear a case on the grounds that NTSB
decisions were inherently unappealable). I'll wait until you have a chance
to provide a pointer.

Thanks,
Gary