"LWG" wrote in message
...

It's no usenet legend, it's FAA v. Merrell. The standard is absolute,
abject deference.
http://www.aviationlawcorp.com/conte...s.html#appeals

No, absolute deference is not the standard, but thanks for the pointer to
that article. You may have identified the source of the legend!

Here is the text of the appeals court decision in FAA v. Merrell:
http://www.ll.georgetown.edu/federal.../98-1365a.html

Nowhere in that decision will you find a requirement for absolute deference
by the NTSB or by the appeals court to FAA interpretations. On the contrary,
the qualifications are quite clearly stated: the NTSB is "bound by all
validly adopted interpretations of laws and regulations the Administrator
carries out ... unless the Board finds an interpretation is arbitrary,
capricious, or otherwise not according to law". And the appeals court's
deference is similarly qualified.

In FAA v. Merrell, the court addressed an aspect of the regulations that had
not been the subject of written guidance by the FAA, and concluded that the
FAA was thereby free to impose whatever *reasonable* interpretation it chose
(that is, an interpretation that is not arbitrary, capricious, or otherwise
contrary to law).

In contrast, the question under discussion in this thread concerns whether
the FAA can offer explicit, unambiguous written guidance in the AIM, and
then interpret a regulatory term in a manner exactly *opposite* to that
guidance. *That* would certainly be arbitrary and capricious, and would not
be upheld on appeal; nothing in FAA v. Merrell suggests otherwise.

--Gary

--------
The Court of Appeals Relegates the NTSB to Rubber-Stamping
On appeal, The FAA argued that the NTSB is required to defer to the FAA's
litigation interpretation of its own regulations. The NTSB refused to
defer to the FAA in this case. The Board ruled that the Agency had offered
no evidence of any validly adopted written policy guidelines on the issue.
The NTSB believed that the agency had merely offered the "litigation
statements" of FAA enforcement lawyers on the question of how to interpret
the regulations pertinent to a misunderstood ATC clearance. The Board felt
that the interpretation of the regulation about whether the captain was
careless under the circumstances was factual in nature and it has always
been within the prerogatives of the Board to reverse factual findings
regarding alleged violations of the rules.
The D.C. Circuit Court of Appeals overruled the decision of the NTSB and
held that the refusal of the Board to defer to the FAA on this question of
agency interpretation was "error." The circuit justices ruled that:
The FAA is not required to promulgate interpretations through rule making
or the issuance of policy guidelines, but may instead do so through
litigation before the NTSB .... The fact that this mode of regulatory
interpretation necessarily is advanced through the litigation statements
of counsel does not relieve the NTSB of its statutory obligation to
accorded due deference. FAA v. Merrell at 577-578.
The Circuit Court went so far as to tell the Board that because the FAA is
entitled to launch new policies through administrative adjudication, "it
may sometimes be necessary for the NTSB to accommodate such policies by
changing its jurist prudential course." Even more amazingly, the Court
held that "because the Board is bound to follow such interpretations, it
may at times be both necessary and proper for the Board to depart from its
prior case law."
-------
"Gary Drescher" wrote in message
...
"Jose" wrote in message
news
requiring absolute, unconditional deference to the FAA's
interpretations

You'll never find that. However, it would certainly be sufficient to
find a case where an unreasonable definition was upheld.

It depends. That would still be troubling, but nowhere near as troubling
as the absolute-deference requirement that some people believe exists.
The important difference is that upholding a particular unreasonable
interpretation would not automatically generalize to requiring all
unreasonable interpretations to be upheld. But so far, no one here has
documented even a single instance of a blatantly unreasonable FAA
interpretation of the FARs being upheld.

--Gary

Jose
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