AIM is pseudo-regulatory

In another thread ("Radio Procedure - Runway ID," which is now pretty
much a stale thread), some of us debated whether the AIM is regulatory.
I indicated that an article appearing in IFR magazine in the early 90s
that was authored by an attorney indicated that the AIM has become
pseudo-regulatory.

One of this newsgroup's more vocal (and sometimes controversial)
contributors asked for case citations in response to a contribution by
someone else. The following cases appear to indicate that violating
the AIM is sufficient to establish that the pilot breached his duty of
reasonable care, and thus operated his airplane negligently:

Management Activities, Inc. v. United States, 21 F.Supp.2d at 1175;
Dyer v. United States, 832 F.2d 1062, 1069 (9th Cir.1987);
First of America Bank-Cent v. United States, 639 F.Supp. at 453;
Associated Aviation Underwriters v. United States, 462 F.Supp. 674; and

Thinguldstad v. United States, 343 F.Supp. 551, 552-53 (S.D.Ohio 1972).


Like most older court cases, they are not easily available online, at
least for free. You can find them on www.westlaw.com,
www.lexisnexis.com for a fee, or perhaps at your nearest publicly
accessible law library. You could also request your attorney to
provide a copy.

This is AOPA counsel John Yodice's take on the subject:

http://www.aopa.org/members/ftmag/ar...m?article=4421

Better treat it as regulatory.

Bob Gardner

"rps" wrote in message
oups.com...
In another thread ("Radio Procedure - Runway ID," which is now pretty
much a stale thread), some of us debated whether the AIM is regulatory.
I indicated that an article appearing in IFR magazine in the early 90s
that was authored by an attorney indicated that the AIM has become
pseudo-regulatory.

One of this newsgroup's more vocal (and sometimes controversial)
contributors asked for case citations in response to a contribution by
someone else. The following cases appear to indicate that violating
the AIM is sufficient to establish that the pilot breached his duty of
reasonable care, and thus operated his airplane negligently:

Management Activities, Inc. v. United States, 21 F.Supp.2d at 1175;
Dyer v. United States, 832 F.2d 1062, 1069 (9th Cir.1987);
First of America Bank-Cent v. United States, 639 F.Supp. at 453;
Associated Aviation Underwriters v. United States, 462 F.Supp. 674; and

Thinguldstad v. United States, 343 F.Supp. 551, 552-53 (S.D.Ohio 1972).


Like most older court cases, they are not easily available online, at
least for free. You can find them on www.westlaw.com,
www.lexisnexis.com for a fee, or perhaps at your nearest publicly
accessible law library. You could also request your attorney to
provide a copy.

"Bob Gardner" wrote in message
. ..
This is AOPA counsel John Yodice's take on the subject:

(The article is by Kathy Yodice, not John Yodice).

http://www.aopa.org/members/ftmag/ar...m?article=4421

Better treat it as regulatory.

Hm, that's a peculiar article. It begins by asking if the AIM is regulatory
and it concludes, "Those cases suggest that you may be held responsible for
complying with FAA guidance". But of the only two cases mentioned, neither
description supports that conclusion. In the first case mentioned, an
unnamed pilot in an unspecified case "attempted to justify" a decision by
citing the AIM--but there is no mention of whether the "attempt" succeeded.
And the second case mentioned makes no reference at all to the AIM or any
other FAA publication.

--Gary

"Gary Drescher" wrote:
http://www.aopa.org/members/ftmag/ar...m?article=4421

Better treat it as regulatory.

Hm, that's a peculiar article.

Not peculiar, but basic adminsistrative law. The article is
referring to the recent Merrill csae, where a Court of Appeals
concluded that an agency (such as FAA) may interpret its own rules
as it wishes, under a principle called "due deference." This is
found throughout federal litigation. Agency publications (like the
AIM) may thus be cited in support of a FAR violation. "Regulatory"
is thus misleading in this regard. In all enforcement cases, you
have to violate a Reg. Much of the AIM does not involve FAR
mattters at all, except portions of it fall under the general
context of 91.13 (reckless operation) for failing to heed. Similar
also as to operating under IFR. Courts at times cite Black's Law
Dictionary or Webster's Dictionary in support of a finding. Nobody
would call those regulatory.

Fred F.

"TaxSrv" wrote in message
...
Not peculiar, but basic adminsistrative law. The article is
referring to the recent Merrill csae, where a Court of Appeals
concluded that an agency (such as FAA) may interpret its own rules
as it wishes, under a principle called "due deference." This is
found throughout federal litigation. Agency publications (like the
AIM) may thus be cited in support of a FAR violation.

It's the "thus" that I'm not following. The AIM purports to recommend best
practices; it does not, in general, purport to put forth interpretations of
the FARs (though it does occasionally make reference to particular FARs). So
deference to the FAA's reasonable interpretation of the FARs doesn't
immediately imply deference to the AIM's recommendations, as far as I can
tell.

--Gary

rps,

You can search the cases on the NTSB's website. It is the NTSB that
interprets the FARs.

The bottom line is that the AIM is looked at by the NTSB as extremely
strong evidence when looking at the question of whether a pilot
operation was "careless and/or reckless" and operating contrary to the
AIM has become the basis for sanction. While the world isn't black and
white, the shade of gray of the AIM is dark enough that it's wise to
treat it as regulatory.

All the best,
Rick

Thanks, but the cases I cite are federal court cases (most are at the
district level, and at least one was at the circuit appellate level).
Either party (FAA or pilot) can appeal an NTSB decision to the court
system. I don't believe the NTSB publishes courts' decisions, though I
may be wrong.

Further, I believe the FAA interprets the FARs and the NTSB merely
affirms or reverses the interpretation. If you read the AOPA article
Bob Gardner pointed to in an earlier post in this thread, you will
learn that a federal court decided that the FAA's interpretation of a
FAR is to be given broad discretion by the NTSB.

I agree that the AIM is to be treated with almost as much authority as
the FARs - other posters to another thread had an opposing viewpoint.

rps,

I understand you were citing federal court cases (appeals from the NTSB
go to the federal appellate courts, not district [trial] courts and it
is extremely rare for someone to appeal a matter from the full NTSB to
the federal courts because the FAA almost invariably has won). I was
referring to administrative actions by the FAA against pilots for
violations of the FARs. Those actions are heard by law judges employed
by the NTSB. The NTSB's responsibility, by statute, is to interpret
the FARs. However, if the FAA has published its own interpretation of
an FAR the NTSB is to give great weight to that interpretation unless
it is clearly unreasonable. In administrative actions against pilots,
the NTSB has used the AIM to determine what is careless and reckless,
which matches the title of this thread, making the AIM very close to
regulatory.

You cited civil actions, which vary a bit from the title of this
thread. None of them were actions by the FAA against a pilot accusing
him or her of violation of a regulation; they were actions involving
civil suits and the question of negligence of a pilot or air traffic
controller. There the issue is whether an action taken or not taken
constituted negligence. Whether the action or inaction was a violation
of an FAR is only evidence of negligence (not conclusive) and operating
contrary to the AIM has been used as evidence of negligence. In those
actions whether the AIM is regulatory is not an issue, a pilot's
certificate was not at stake. A pilot who choses to operate in a
manner contrary to the recommendations of the AIM faces two separate
issues: First, can the FAA use the operation as the grounds for a
certificate action? and second, if there is an accident and the pilot
is sued for negligent operation of the aircraft, is the operation
contrary to the AIM recommendations and therefore evidence of
negligence? One issue is an issue of compliance with the regulations
when it comes to a violation of the FARs and a certificate suspension
or revocation and the other is an issue of potential civil liability
should there be an accident.

Sorry for the long answer, but there are two distinct considerations.

All the best,
Rick