Would a NASA form help?

Gary Drescher wrote:

So even though the President has to obey the judiciary, the NTSB doesn't? Is
there a documented example of such defiance by the NTSB?

Tons. The procedure if you are charged with a violation is that your case is
heard first by an FAA board. If you object to their ruling, you can appeal it to
a law judge. If either you or the FAA objects to the judge's ruling, you or they
can appeal to the 7 member National Transportation Safety Board. Their ruling is
final -- there is no appeal.

Remember that you have not been charged with a crime. You have been charged with
violation of the FAA rules instituted for the safety of the American public. The
judicial branch does not have the final say.

The NTSB is infamous in pilot circles for reversing the judges' decisions and
reinstituting (at least in part) the original penalty applied by the FAA.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

"George Patterson" wrote in message
news:E5che.41$Vu6.14@trndny03...
Gary Drescher wrote:

So even though the President has to obey the judiciary, the NTSB doesn't?
Is there a documented example of such defiance by the NTSB?

Tons.

Even one will suffice. But can you cite any documentation, please?

If either you or the FAA objects to the judge's ruling, you or they can
appeal to the 7 member National Transportation Safety Board. Their ruling
is final -- there is no appeal.

What leads you to believe that?

Thanks,
Gary

Gary Drescher wrote:

Even one will suffice. But can you cite any documentation, please?

A Ramp Check
(adopted from May 1996 AOPA Pilot)

A legal decision of the National Transportation Safety Board provides a look at
an actual FAA ramp check. The case shows us how a few technical violations,
coupled with some prior antagonism, can escalate into a serious problem for the
pilot of the flight being checked - in this case, a 90-day suspension of the
pilot's ATP certificate. The Board's decision leaves the pilot's
responsibilities in a ramp inspection cloudy.

It was the day before Thanksgiving, 1993. The pilot was captain of a Learjet
carrying some cargo from Sparta, Tennessee, to Monroe, Michigan. It was a
commercial flight operated under Part 135 of the Federal Aviation Regulations.
The flight made a refueling stop at Smyrna, Tennessee — which is only some 45
miles from Sparta — because of the low price of fuel at the airport there. The
pilot had called ahead to arrange with the fixed base operator at Smyrna for a
"quick turnaround." The stop was to take no more than 10 minutes. As it turned
out, it took much longer, and the second stage of the flight was eventually
canceled.

At the time that the Lear landed at Smyrna, there were two inspectors from the
Nashville Flight Standards District Office who were at the airport to talk to a
woman who owned a flight school that was having some problems. She wasn't
available, and as they saw the Lear taxi in, the inspectors decided to do a ramp
check on the Lear.

As the airplane parked, they approached it, and at least one of them presented
his credentials to the pilot, announcing the ramp inspection. According to the
captain, one of the inspectors refused to present his credentials. There had
been some prior antagonism between the inspectors and the company operating the
flight, and some litigation in federal court, but the decision gives no details.

It was an unusually thorough inspection. At the request of the inspectors, the
pilots presented their pilot and medical certificates, the aircraft registration
and airworthiness certificates, the operations manual and the operations
specification of the FAR Part 135 operator, the minimum equipment list, the load
manifests, and the shipping papers for the cargo being carried. According to the
evidence, one of the inspectors was going through the operations manuals page by
page. The inspectors were allowed into the aircraft, and they even rummaged
through the cargo. The pilots provided everything the inspectors asked for,
though things got a bit testy as the inspectors seemed to be taking their time
in an obviously time-critical situation, and the captain overheard some negative
comments. The estimates of how long the inspection took ranged from 40 to 50
minutes to as long as an hour.

After that thorough review of the documents, the inspectors found two problems
that I call "technical." They found errors in the load manifest for the flight
from Sparta to Smyrna, and they found that an IFR flight plan had not been filed
for that flight.

Even though, on the flight to Smyrna, the Lear was more than 3,000 pounds under
allowable gross weight and well within center-of-gravity limits, the load
manifest was technically in error. The copilot erroneously used the standard
average weights of 165 pounds for each of the crewmembers (as allowed on a
larger airplane he had been flying), for a total of 330 pounds, instead of their
actual weights which totalled about 490 pounds. Also, the weight of the cargo
was listed as 330 pounds instead of the actual weight of 520 pounds. The weight
of the cargo listed on the shipping papers was in kilograms, and the 330-pound
figure used by the crew was given to them by the person who delivered cargo to
the airplane - which was the usual practice. In any event, technically, the load
manifest was wrong.

As for the absence of an IFR flight plan, the operations specification did
require that turbojet airplane flights conducted under Part 135 must be operated
under IFR though there seemed to be some confusion in the ops specs. However,
the flight, as short as it was, was in constant communication with air traffic
control during the entire flight, under radar contact, utilizing flight
following, but, technically, not IFR.

The problems really became exacerbated when one of the inspectors wanted to
check the fuel load for the next leg of the flight. The drivers of the FBO's
fuel trucks, under instructions to top off the tip tanks, refueled the airplane.
The Lear has a fuselage tank — a "trunk" tank, and filling the tip tanks did not
necessarily mean that the fuselage tank would also be full. To determine the
amount of fuel in the fuselage tank, the inspector asked the pilot to turn on
the aircraft's Master switch so that the fuel gauge could be read. The pilot
refused, telling the inspector that he was in a hurry. The pilot later testified
to his understanding that while he was under obligation to allow access to the
airplane and the paperwork, he was not under obligation to do anything like
turning on the Master switch.

He had not been asked to do anything like that in previous ramp checks. And, his
understanding had been confirmed in conversations that he had with other pilots
and FAA inspectors.

The inspector then demanded an en route inspection, presumably to be on board
when the Master switch had to be turned on and the gauge could be read. The
pilot, now with the added fuel, refused to conduct the flight with the inspector
on board, saying that the aircraft would be over gross weight if it took off
with the inspector on board. The inspector suggested that the pilot burn off 200
pounds of fuel before takeoff. The pilot didn't consider that suggestion viable
and walked away from the aircraft. The flight was canceled. Another jet was
dispatched to complete the flight. The crew repositioned the Lear to another
airport in Tennessee and then got in their cars to try to make it home for
Thanksgiving.

The inspectors sent out three letters, to the pilots and the operator, notifying
them that this incident was under investigation. When the operator received the
letter, the operator sent a fax to the pilots, who were on a trip, grounding
them and telling them to report to Houston for an employment evaluation
interview and retraining. Company officials believed that if they were tough on
the pilots, that would satisfy the FAA and the matter would be dropped. That was
not to be, at least not for the captain. The decision does not tell us what
action was taken against the company or the copilot.

Ultimately, the FAA issued an order suspending the captain's ATP certificate for
90 days, charging him with several regulatory violations, including preparing an
inaccurate load manifest, failing to operate the flight IFR as required by the
operations specifications, and failing to allow the inspectors to conduct the
ramp inspection. The FAA also charged the pilot with carelessly endangering life
or property.

The captain appealed the suspension to the NTSB. A hearing was held before an
administrative law judge, who affirmed the FAA in part and reduced the
suspension to 45 days. While the judge found that the FAA request to turn on the
Master switch was reasonable, he also found that the captain's refusal was also
reasonable. He did not think it reasonable for the FAA to expect the captain to
burn off 200 pounds of fuel in order to accommodate the en route inspection. He
threw out the two charges related to interfering with the ramp inspection and
reduced the suspension. Both the captain and the FAA further appealed the law
judge's decision to the full five-member Board. The full Board granted the FAA's
appeal and reinstated the 90-day suspension. It denied the captain's appeal.

The full Board agreed with the FAA that by refusing to turn on the Master
switch, the pilot prevented the inspectors from completing the inspection. The
Board rejected the pilot's argument that he was not required by regulation to
assist the FAA in its inspection. The Board also said that the expense to the
carrier of burning off 200 pounds of fuel was "minimal." The fact that "both
sides may have become impatient with one another" does not warrant a reduction
of the sanction. It affirmed the FAA position that the violations "potentially"
endangered others. It reinstated the 90-day suspension.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

"George Patterson" wrote in message
news:l8dhe.75$4d6.71@trndny04...
Gary Drescher wrote:

Even one will suffice. But can you cite any documentation, please?

A Ramp Check
(adopted from May 1996 AOPA Pilot)
...

Thanks. But there's no assertion there that the full Board's decision is not
subject to judicial review (let alone any *evidence* for such an assertion).
Think about it--how could the NTSB possibly have acquired such an
astonishing power? Neither Congress nor the President has such a power, nor
the ability to confer such a power on any other person or group.

By the way, here's what the NTSB itself says about it: "If either the FAA or
the airman is dissatisfied with the judge's decision, a further appeal may
be taken to the NTSB's full five-member Board. If the airman or FAA is
dissatisfied with the full Board's order, either may obtain judicial review
in a federal appeals court. However, the FAA can only appeal the Board's
order in cases that it determines may have a significant adverse impact on
the implementation of the Federal Aviation Act."
(http://www.ntsb.gov/abt_ntsb/olj.htm)

--Gary

George Patterson wrote:
As for the absence of an IFR flight plan, the operations
specification did
require that turbojet airplane flights conducted under Part 135 must
be operated
under IFR though there seemed to be some confusion in the ops specs.
However,
the flight, as short as it was, was in constant communication with
air traffic
control during the entire flight, under radar contact, utilizing
flight
following, but, technically, not IFR.

Not filing IFR, as required, is not the same as getting lost. Apples
and oranges. This is would be an intentional violation, IMO.

If either you or the FAA objects to the judge's ruling, you
or they can appeal to the 7 member National Transportation
Safety Board. Their ruling is final -- there is no appeal.

I thought you could take it to Federal Appeals Court...

http://www.kscourts.org/ca10/cases/2001/09/00-9500.htm

....and thence to the Supreme Court, although I don't think SCOTUS has
ever accepted such a case...

"George Patterson" wrote:
... If either you or the FAA objects to the judge's ruling, you or
they
can appeal to the 7 member National Transportation Safety Board.
Their ruling is final -- there is no appeal.


Yes there is -- to the Circuit Courts of Appeal, and to the Supreme
Court.

Fred F.

George Patterson wrote:
Remember that you have not been charged with a crime. You have been
charged with violation of the FAA rules instituted for the safety of the
American public. The judicial branch does not have the final say.

The judicial branch has the final say in both civil and criminal
matters. You could appeal your case all the way up to the Supreme
Court, if you wanted to pay for the lawyers all the way up. (There's no
guarantee that any of the courts would hear your case, but even their
decision to hear your case or not is a form of judicial review.)

Here is a case where the U.S. Court of Appeals overrules the judgment of
the FAA and the NTSB. Especially note this paragraph:

---
The FAA and the NTSB argue that this Court does not have
jurisdiction to hear Reder's appeal. We disagree.

Judicial review of FAA or NTSB orders is contemplated by 49
U.S.C.  44709(f) (1994) of the Federal Aviation Act's Safety
Regulations. Section 44709(f) directs that orders of the NTSB or
the FAA be reviewed pursuant to 49 U.S.C.  46110 (1994).
---

http://caselaw.lp.findlaw.com/cgi-bi...ase&no=962438p

Charles.
-N8385U

"Charles O'Rourke" -net wrote in message
news:lUghe.13514$iU.12603@lakeread05...
The judicial branch has the final say in both civil and criminal matters.
You could appeal your case all the way up to the Supreme Court, if you
wanted to pay for the lawyers all the way up. (There's no guarantee that
any of the courts would hear your case, but even their decision to hear
your case or not is a form of judicial review.)

Yup.

What concerns me most about these threads is that so many pilots are willing
to believe--on the basis of mere rumors and urban legends--that we actually
live under a totalitarian system in which a minor administrative authority
routinely and openly operates without even nominal regard for due process,
and is so powerful as to be invulnerable to the judiciary! And these pilots
are willing to acquiesce to this (fortunately imaginary) totalitarianism
without mounting significant resistance. Their willingness serves as an
unwitting invitation to actually bring about such a state of affairs.

In other walks of life, of course, the Patriot Act, and US practices of
disappearance and torture, pose far more dire threats to due process and
other Constitutional and international human-rights guarantees. But at least
there *is* resistance being mounted--politically, and through litigation by
groups such as the ACLU. And there is no doubt that the judiciary has the
final say in these matters, although they have limited their intervention so
far.

--Gary

"Gary Drescher" wrote in message
...
What concerns me most about these threads is that so many pilots are
willing
to believe--on the basis of mere rumors and urban legends--that we
actually
live under a totalitarian system in which a minor administrative authority
routinely and openly operates without even nominal regard for due process,
and is so powerful as to be invulnerable to the judiciary!

IMHO, part of the problem is that the "minor administrative authority" does
"routinely and openly operate without even nominal regard for due process".
That is, they act as though there is no judicial review, and are not
challenged on those actions nearly often enough. They may not actually be
"so powerful as to be invulnerable to the judiciary", but they sure act like
it on a regular basis.

Perhaps another part of the problem is that the judiciary so infrequently
chooses to review decisions made by the "minor administrative authority".
When an administration is permitted to interpret their own rules as they see
fit, and the judiciary makes the assumption that the actions of the
administration are entirely appropriate for their charter to ensure aviation
safety, without regard for their charter to promote aviation, it's easy to
see how some folks might get the wrong idea.

Pete