Commercial flying???

[Sam Snead]

Sam,

Unfortunately, listening to me and listening to the FSDO will get you just about as far. Neither of us, collectively, can provide you with more than an opinion...something that carries no weight.

What I posted above comes from the FAA chief legal counsel, and that does carry weight, as it represents the official position of the FAA Administrator, and therefore the official policy of the FAA.

The FSDO can only offer you an opinion, and that opinion is not defensible...if the FSDO tells you something and it's wrong, you can't go back later during enforcement proceedings and say that the FSDO told you...it won't help you.

ASA puts out a disc by Summit Publications that contains all the FAA pubs on one disc, and more...it's about eighty bucks, and it will have all your legal interps, AC's, everything. It's the Pro Pilot CD, and it's worth getting.

avbug,

I tend to read your posts and you bring stuff to light that's good for an aviator to know.

In my opinion, your opinion is better than the FSDOs opinion. And since they are now on my (*&(*&)# list, the forums.flightinfo opinion, often yours, is what I'm going with.

Now hopefully I don't get in trouble so I have to delve more deeply into Counsel opinions, than is available on forums.flightinfo.

Flightinfo is a chamber in my church. I can feel the love all around!

Ahem....

 

[avbug]

If you really want to get serious about regulation discussions, Doc's FAR Forum at propilot.com is the place to go. "Doc" has dedicated a great deal of time that forum and it's far and away light years beyond any other forum on the topic. I used to participate there as a study motivator, but it was too much to keep up. I have to wonder how Doc does it, sometimes.

There's a search feature available, and you can get some good, serious answers on any subject related to flying regulation you can possibly imagine or conjure up.

Incidentally, the prop pilot disc noted earlier is the same one the FAA inspectors at your local FSDO are probably using...I know a lot that do.

Good luck!

 

[aussiefly]

Hey Avbug,

Is that opinion that was provided by the Chief Counsel legally binding upon the FAA?

And has the precident been tested in court as to aircrew depending upon the legal weight of an written opinion tendered by the FSDO as a representative of the FAA?

I wonder because out here in Australia the court would likely rule that an official communication (in writing) from CASA (our FAA) would likely be considered to be a binding ruling. And I was sort of wondering aloud if that would operate similarly in a US jurisdiction.

Anyway enough legal musings

 

[avbug]

Aussie,

In the US, it works a little differently. First, when the FAA takes enforcement action, you're guilty until proven innocent. You don't have the opportunity of fighting to avoid enforcement action, only to appeal it. The FAA does the enforcing, and it's the FAA that sets the rules and regulation, and issues the pilot certificate. The FAA Chief Legal Counsel speaks on behalf of the FAA Administrator, who is the person responsible for all FAA action and policy. In other words, the voice of the FAA.

The FAA Chief Legal Counsel interpretation or opinion is the official policy of the FAA, and represents the manner in which the regulation will be applied. When a legal interpretation is issued, the FAA has spoken, collectively, with the authority of the Administrator (the person appointed through an Act of Congress to promote and regulate aviation in the United States), through the Chief Legal Counsel (or representatives). In many cases the Regional Legal Counsel also issues interpretations of the regulation which may be used.

Yes, the statements are defensible in court. In the US, FAA enforcement matters are handled in Administrative court, which is different than criminal or civil court. The FAA holds most of the cards, and has the ability to interpret the regulation during the court action or while the matter is being considered...because it's FAA regulation. The Administrative Law Judge (ALJ) isn't there to determine right or wrong, but only compliance with the regulation.

The best effort for an airman is to ensure understanding of the regulation before enforcement action takes place, and a tool to do this is the Chief Counsel Legal interpretations...these spell out the regulation as it is and will be applied. This information may be considered correct and has authority, whereas statements at the local Flight Standards District Office do not.

 

[aussiefly]

wow thats pretty different to how our legal system works ( we are still fairly old school under really strict english common law). Our Administrative Appeals Tribunal hears any intial federal jurisdiction matters (im most cases its the first appelate jurisdiction). And they hae the ability to interpret the legal intention of the regulation.

Generally the AAT is quite arbitrary but after that its to the next court level and then it comes down to an interprestaion of the act or regulation which the issuing body doesnt get the opportunity to interpret on behalf of the court.

What that big mouthfull really means is that CASA is not judge, jury and executioner rolled up into one. But it sure sounds like the FAA holds all the cards in these cases and are really fulfilling the courts legal role in interpreting points of law. It sort of goes against standard law practice and forces the court into more of a point of fact role.

Rather than does the REG apply to the airmans violation it will initially be ruling on weahter a violation against the reg or act occured and what the interpretaion of such is. But in the US it sounds like the FAA determines a breach and if you appeal the court is more making a decision on points of fact.

Clear as mud

Cheers
p.s thanks for the info. interesting stuff that i havent thought about since law school....no im not practicing law at all

 

[avbug]

You're a step ahead of me. I never went to school.

During enforcement proceedings, the Administrative court is presided over by an Administrative Law Judge...who does not work for the FAA, nor is the administrative court operated by the FAA.

The FAA still holds most of the cards, though.