Looking for FAR web site based on legal rulings

[Bernoulli]

I have heard of a web site that answers the majority of questions about the FAR's and the answers are backed up by FAA court cases... so the answers to the questions are not simply based on someone's interpretation of what the FAR's mean, but what a court ruling has decided what the regs mean. Does anyone here know where I can find this web site. Thanks in advance for any comments.

 

[A Squared]

I don't know of any website quite lik you describe. The one that comes closest is DOC's FAR forum http://www.propilot.com/doc/bbs/

It is a discussion forum dedicated to Aviation Regulations. Doc is a pilot, not a lawyer, although he is very well informed about legal issues. His website has no official status. However, Doc goes above and beyond the call in ferreting out the correct answer to legal questions. Where he can, he backs up his answer with legal interpretations from the FAA's Chief Counsel. It is a very informative website.

A couple of points regarding legal issues.

The court in which you face enforcement proceedings is an NTSB court, not an FAA court. However, the judges in the NTSB court are bound by law to accept the FAA's interpretation of what a regulation means. So, the official interpretation issued by the FAA will prevail in any enforcement against you. These interpretations may only be issued by FAA counsel ... that is to say, FAA lawyers. The interpretation may be issued either by the Chief Counsel (head lawyer in DC) or by one of the regional Counsels. Something written by an operations inspector has no offical status and is not worth the paper it is printed on.

Anyway, the regulations mean what the FAA's lawyers say it means, and the Judge is required to accept thier interpretation. In light of this, the actual court decisions are much less relevant, as they don't often establish law, like a real court would. There is no comprehensive source that I know of for legal interpretations. Many, but not all are available in the Summit Aviation CD.

If you are interested, you can read all the NTSB decisions from 1992 on at :

http://www.ntsb.gov/O_n_O/query.asp

It should be noted that only decisions of the board are available there. Normally, an enforcement goes before an Administrative Law Judge (ALJ) in the NTSB court and that judge rules on the case. If either you or the FAA doesn't like the ruling, it is appealed to the board, meaning the members of the National Transportation Safety Board. (a group of political appointees) They review the case and the appeal and issue a ruling. It is those rulings which are on this website. I don't know of a source for the ALJ rulings.

 

[lawfly]

Good info from A Squared. Allow me to add the following: There is also potential judicial review of full NTSB decisions, by petition for review to the United States District Court of Appeals. 49 U.S.C. Sec. 1153. (There is also possible--but generally unlikely--Supreme Court review. 49 U.S.C. Sec. 1153(a)(5)). In fact, the early caselaw pertaining to deference to FAA interpretation of regulations was a 1999 District of Columbia Court of Appeals case in which the FAA filed the petition for judicial review, after it lost before the full Board. The court relied in part on 49 U.S.C. Sec. 44709(d). That case is strongest in the DC district and arguably persuasive elsewhere. That court did impose some general requirements on the FAA interpretations--requirements generally favoring the FAA. The materials I am relying on at the moment are 2 years old, so do not know if there has been any further development or change since then. This is just a starting point for your own research, if you wish. Again, good info from A Squared.

 

[midlifeflyer]

That court did impose some general requirements on the FAA interpretations--requirements generally favoring the FAA. The materials I am relying on at the moment are 2 years old, so do not know if there has been any further development or change since then.

Well, it didn't really give any special status to the interpretation letters themselves, but I think you're referring to the general rule of deference to agency interpretations as it applies to the FAA.

The case you're probably thinking of is FAA v. NTSB and Merrill, 190 F.3d 571 (DC Cir 1999) where the NTSB disagreed with an interpretation that the FAA was placing on a regulation. In addition, the first time the FAA had offered the interpretation was during the proceeding itself. The DC Circuit Court of appeals reversed the NTSB saying that (1) the NTSB has to defer to the FAA's interpretation unless it's completelyunreasonable and (2) the FAA can make it's interpretation for the first time in the course of an enforcement proceeding.

In the case of the FAA and NTSB, the rule is also statutory. The appeals parts of 49 USC § 46301 (Civil penalties), 44709 (Amendments, modifications, suspensions, and revocations of certificates), 44703 (refusal to grant airman certificate), 44710 (Revocations of airman certificates for controlled substance violations) all contain language that is similar to (quoted from §46301) this saying that the NTSB

==============================
is bound by all validly adopted interpretations of laws and regulations the Administrator carries out and of written agency policy guidance available to the public related to sanctions to be imposed under this section unless the Board finds an interpretation is arbitrary, capricious, or otherwise not according to law.
==============================

The issue of whether the FAA is bound or whether we, as pilots, can =really= rely on those interpretation =letters= is a bit different. Although they are good for guidance on what the FAA is thinking, they pretty much have the same status as IRS interpretive letters - they only legally apply to the people they are written to. The most recent general statement of the principles surrounding interpretive letters is from Air Brake Sys. v. Mineta, 357 F.3d 632(6th Cir, 2004), saying that the interpretive letter process is simply too informal to be accorded deference.

 

[A Squared]

The most recent general statement of the principles surrounding interpretive letters is from Air Brake Sys. v. Mineta, 357 F.3d 632(6th Cir, 2004), saying that the interpretive letter process is simply too informal to be accorded deference.

Mark,

I think you're reading a great deal more into this decision than is warranted.

As I read it, Counsel for the National Hiway Traffic Safety Administration expressed an opinon that a specific product (an antilock brake) did not meet a certain safety standard, before the compliance or non-compliance had been determined through the apropriate process. The manufacturer sought an injunction, and the court refused to review that opinion as it was not a final determination (final determination had not yet been made through apropriate procedures) and as it wasn't a "final agency action", the court didn't have the jurisdiction to review.

".......saying that the interpretive letter process is simply too informal to be accorded deference."

That is a very broad statement, and I don't see any support for it in the decision. This case does not address the issue of deference in any way that I can detect. The court found that those particular letters were not final agency action, and thus not subject to judicial review. I think that it is a stretch to conclude that all interpretive letters are informal in nature and thus are not due deference.

The situation is analogous to the FAA chief counsel opining that a certain GPS receiver didn't meet a TSO, before the compliance process had been completed. That is a very different situation thant the FAA's CHief Counsel stating that a CFI checkride does not fulfil the requirement for a flight review (for example)

Nor is it logical to claim that a CFI checkride does not suffice *only* for Scott Dennestedt, the person to whom that letter was addressed.

 

[lawfly]

Looking for an FAR web site...

I didn't say anything about "letters". Was talking about the deference rule and was just offering a starting point for additional research. Carry on, gentlemen.

 

[midlifeflyer]

I think you're reading a great deal more into this decision than is warranted.

You're certainly entitled to think that.

Nor is it logical to claim that a CFI checkride does not suffice *only* for Scott Dennestedt, the person to whom that letter was addressed.

Think so? So now we have a pilot in an accident. A review of the logbooks shows that the last FR was 3 years earlier, but that the pilot obtained both her CFI and CFII in the interim, either one of which is within the 24 month period. The Inspector begins certificate action. The case is assigned to an FAA attorney.

Now that there is something at stake other than just jawing with Scott, I would hope and expect that the FAA counsel would take a second look at the issue. Vice versa as well, something that FAA Legal said was "okay" in a letter may turn our to sound not that okay when real issues are at stake.

Clearly the letter opinions tell us what the FAA is thinking. And after 20+ years saying the exact same thing over and over again about, say, logging PIC, it is doubtful that the FAA would suddenly change it's mind at a hearing. But real issues in a real hearing, like the rule making process with it's comment procedure, focus the FAA's attention in a very different way than answering one person or company in a letter.

I've never seen anything to suggest that the FAA's Legal Counsel interpretive letter opinions have any greater legal status than the IRS's.

 

[Lead Sled]

I know of no website with the information that you mentioned. Jeppesen, however, publishes a couple of pretty good books - "Federal Aviation Regulations Explained" - by Kent S. Jackson that include cross references, advisory circulars, and FAA Chief Counsel opinions.

Lead Sled

 

[A Squared]

You're certainly entitled to think that.

So show me the error of my thinking. The decision seems primarily concerned with the appellate court's jurisdiction to review the legal counsel's opinion....the answer being no, they do not have the jurisdiction to review. I don't see how that speaks to the deference due or not due a counsel's interpretation by an administrative court. Am I missing something? if so, what?

Now that there is something at stake other than just jawing with Scott, I would hope and expect that the FAA counsel would take a second look at the issue. Vice versa as well, something that FAA Legal said was "okay" in a letter may turn our to sound not that okay when real issues are at stake.

OK, you've lost me there. why would the FAA reconsider the interpretation? Presumabley it was formed with knowledge of the history and intent of the regulation and in accordance with the rules of construction ... so why, when push comes to shove, would they change? Just to be nice guys?

Let's say Mr. Jones asks if it is a requirement for him have an high altitude to log PIC as sole manipulator of hte controls of a King-Air. FAA counsel responds with a leter saying that no, the high altitude endorsement is not required. Ms. Smith comes into possesion of this letter, and following that guidance, logs a whole bunch of King Air pic (sole-manipulator) .... sooo, in a logbook review a sharp eyed inspector sees that and issues a LOI. Ms. Smith shows up at the hearing with a copy of the letter. If what you are saying is true, the FAA would be the choilce of saying either:

a). I'm sorry, that letter only applies to Mr Jones, We're going to violate you anyway.

or, if they preferrred:

b) I'm sorry, we've changed our minds, we're going to violate you anyway.

In the first case, I have a hard time wrapping my mind areound a legal system that allows laws to be applied to one individual one way, but differently to a different individual in a substantially similar situation.

In the second case, It seems that a system which allows the FAA to officially change it's mind on a whim isn't much of a system at all.

It would seem that if a person acted in accordance FAA Counsel's interpretation of a regulation, they could hardly be then be found to be in violation of that regulation. Perhaps I am being hopelessly naive

I've never seen anything to suggest that the FAA's Legal Counsel interpretive letter opinions have any greater legal status than the IRS's.

OK, I'm completely ignorant on the subject of IRS letters, maybe you could explain what you mean by that statement, maybe that will help me see what you're saying here.

 

[midlifeflyer]

The decision seems primarily concerned with the appellate court's jurisdiction to review the legal counsel's opinion....the answer being no, they do not have the jurisdiction to review. I don't see how that speaks to the deference due or not due a counsel's interpretation by an administrative court. Am I missing something? if so, what?

Maybe just a larger context. (I'm =not= trying to be sarcastic)

The Air Brake Systems case doesn't stand alone. It's only one of a whole bunch of cases on a more general principle. In lay terms, an appellate court can only review a "final agency action" of some sort - an agency's final, enforceable word on a subject. Something that is binding on both the agency and the people the agency deals with. The flip side is that only final agency actions are entitled to deference - have some legally enforceable status. It's a principle that goes far beyond FAA law.

An interpretation made in an enforcement action is a final action - the FAA has had to state a solid position at an adjudicatory hearing to have that position enforced. A regulation itself is also final action - it has gone through the rule making process. In either case, someone can challenge it precisely because the agency has made a final, enforceable, binding statement about the subject. That's the jurisdictional issue.

But an interpretive letter is not a "final action" precisely because (quoting Air Brake Systems)

==============================
the Chief Counsel's legal interpretations have no claim to deference of any sort. For one reason, they are too informal. Congress does not generally expect agencies to make law through general counsel opinion letters.
==============================

There's no jurisdiction in the case precisely because there is nothing legally biunding on anyone in front of the court. The two pieces go hand in hand. Legally enforceable agency action = something reviewable by a court. And vice versa.

In the first case, I have a hard time wrapping my mind areound a legal system that allows laws to be applied to one individual one way, but differently to a different individual in a substantially similar situation.

The legal system just recognizes that an FAA attorney answering a question in a letter does not rise to the level of something that is final and legally enforceable. The regulations are subject to a comment period. Most interpretive law is the result of two sides arguing things back and forth. The interpretive letter is completely one-sided - no countervailing input at all from someone with an interest in an opposing interpretation.

That doesn't mean that an agency can apply the exact same thing differently to different people on a "whim". There are countervailing policies that, even if not legally enforceable, are pretty strong. The legal system relies on some level of predictability - that's why these interpretive letters are published to begin with instead of being kept private - they let the interested public know what is most likely to happen in a given situation. If agencies regularly went back later and said "never mind" there would be social and political consequences.

 

[A Squared]

Mark,

Thanks for the explanation. A couple of questions:

==============================
the Chief Counsel's legal interpretations have no claim to deference of any sort. For one reason, they are too informal. Congress does not generally expect agencies to make law through general counsel opinion letters.
==============================

I don't see that quote in the docket I've read. I'm looking at what I believe to be the desicion on the Michigan Bar assn's website

http://www.michbar.org/opinions/district/2002/042502/14898.html

Is this the one you're referencing, or is there another docket?

An interpretation made in an enforcement action is a final action - the FAA has had to state a solid position at an adjudicatory hearing to have that position enforced.

So you are saying that a lettter of interpretation issued by the CHief COunsel is not a "validly adopted interpretation" But if that same interpretation is advanced in an enforcement action than it does become a "validly adopted interpretation"

 

[midlifeflyer]

http://www.michbar.org/opinions/district/2002/042502/14898.html

That was the District Court decision. It went up to the 6th Circuit on appeal:

http://pacer.ca6.uscourts.gov/cgi-bin/getopn.pl?OPINION=04a0044p.06

So you are saying that a lettter of interpretation issued by the CHief COunsel is not a "validly adopted interpretation" But if that same interpretation is advanced in an enforcement action than it does become a "validly adopted interpretation"

That's one way of putting it, though it's a little more technical than that. I've been loose on the technicalities in an effort to keep as much jargon as I can out of it (try teaching antitrust law to management majors ). Actually, the "deference" rule doesn't really give the interpretation binding status. All the deference rule does is tell the NTSB it has to follow the FAA's lead when making it's ruling (with some exceptions). In it's broadest sense, the deference rule comes down to (my definition, not a court's):

An agency is presumed to be an expert on it's own regulations. When a court is asked to interpret an agency regulation, the agency's own interpretations are entitled to great weight and should be followed unless the interpretation is unreasonable.

Ultimately, it's the NTSB order using the intrepretation and the results on any appeal from that order that finally give the interpretation the force of law.