Flying through known or forecast icing

Gary Drescher wrote:
"George Patterson" wrote in message
news:_Qpof.17301$Jz6.14963@trnddc06...

Bob Gardner wrote:


Gary, the most recent case was in 2005. That's what George was linking
to.

No, that's the date of the article. The most recent ruling on the forecast
icing issue was about 12 years ago. There were earlier ones as well. If,
however, the AIM is in conflict with case law (and it is), the AIM is
wrong.


The AIM presents the FAA's current official definition of "known icing
conditions". So any case law decided on the basis of prior explicit or
implicit definitions is no longer applicable.

But isn't it the NTSB that usually makes the final determination on the
appeal?

Matt

"Matt Whiting" wrote in message
...
Gary Drescher wrote:
The AIM presents the FAA's current official definition of "known icing
conditions". So any case law decided on the basis of prior explicit or
implicit definitions is no longer applicable.

But isn't it the NTSB that usually makes the final determination on the
appeal?

No, the courts do. Our system of government has independent executive,
legislative and judicial branches that provide checks and balances on one
another. No executive or legislative agency is invulnerable to judicial
review.

Here's what the NTSB itself says about it: "If either the FAA or
the airman is dissatisfied with the [administrative law] 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

Matt Whiting wrote:

But isn't it the NTSB that usually makes the final determination on the
appeal?

Used to be that way. Congress added the possibility of an appeal to the U.S.
Appeals court some years ago.

George Patterson
Coffee is only a way of stealing time that should by rights belong to
your slightly older self.

"George Patterson" wrote in message
news:lMBof.168$CL.5@trnddc04...
Matt Whiting wrote:

But isn't it the NTSB that usually makes the final determination on the
appeal?

Used to be that way. Congress added the possibility of an appeal to the
U.S. Appeals court some years ago.

George, I have a different understanding of the three branches' separation
of powers. Neither the administration nor the Congress has the
Constitutional authority to make a federal agency's decisions categorically
immune to judicial review. Congress may have formalized the appeal process
at some point, but I don't think it could have previously been the case that
NTSB decisions were exempt from all judicial appeal. The NTSB may formerly
have taken that position, but that didn't make it true. Was there ever a
case that an appeals court refused to hear on the grounds that NTSB
decisions were inherently unappealable?

Thanks,
Gary

Gary Drescher wrote:
"George Patterson" wrote in message
news:lMBof.168$CL.5@trnddc04...

Matt Whiting wrote:


But isn't it the NTSB that usually makes the final determination on the
appeal?

Used to be that way. Congress added the possibility of an appeal to the
U.S. Appeals court some years ago.


George, I have a different understanding of the three branches' separation
of powers. Neither the administration nor the Congress has the
Constitutional authority to make a federal agency's decisions categorically
immune to judicial review. Congress may have formalized the appeal process
at some point, but I don't think it could have previously been the case that
NTSB decisions were exempt from all judicial appeal. The NTSB may formerly
have taken that position, but that didn't make it true. Was there ever a
case that an appeals court refused to hear on the grounds that NTSB
decisions were inherently unappealable?

It has been a long time since my high school American Government class,
but I thought that this only applied to constitional rights, not
so-called privileges. If your state pulls your driver's license, can
you really appeal that through the Federal court system?


Matt

"Matt Whiting" wrote in message
...
It has been a long time since my high school American Government class,
but I thought that this only applied to constitional rights, not so-called
privileges. If your state pulls your driver's license, can you really
appeal that through the Federal court system?

I suspect the (initial) appeal would be in state court rather than federal,
but there is certainly a judicial remedy if the denial of your license is
unreasonable. (The FAA, of course, is a federal agency, so no state courts
are involved.)

The so-called right vs. privilege distinction is beside the point, because
there is unquestionably a constitutional right to not have a privilege
unreasonably withheld. Your state could not, for example, deny you a
driver's license just because they don't like your race or religion. If they
tried, you could certainly get the courts to intervene.

--Gary

Gary Drescher wrote:

George, I have a different understanding of the three branches' separation
of powers. Neither the administration nor the Congress has the
Constitutional authority to make a federal agency's decisions categorically
immune to judicial review. Congress may have formalized the appeal process
at some point, but I don't think it could have previously been the case that
NTSB decisions were exempt from all judicial appeal. The NTSB may formerly
have taken that position, but that didn't make it true. Was there ever a
case that an appeals court refused to hear on the grounds that NTSB
decisions were inherently unappealable?

Absolutely. This lack of appeal to the judicial branch was a big bone of
contention for AOPA in the early 90s. The latest article I found recently in
AOPAs files describing this dates from 1994, so it was changed sometime after
that. A later Yodice (IIRC) article states that this was changed by decree of
Congress.

George Patterson
Coffee is only a way of stealing time that should by rights belong to
your slightly older self.

"George Patterson" wrote in message
news:bPKof.1392$eI5.1003@trnddc05...
Gary Drescher wrote:
Was there ever a case that an appeals court refused to hear on the
grounds that NTSB decisions were inherently unappealable?

Absolutely.

Perhaps I'm mistaken then. Do you have a pointer to the case?

Thanks,
Gary

Gary Drescher wrote:

Perhaps I'm mistaken then. Do you have a pointer to the case?

Cases. Not tonight. If you're in a hurry, search the AOPA site for "NTSB
appeal". Look for older articles.

George Patterson
Coffee is only a way of stealing time that should by rights belong to
your slightly older self.

"George Patterson" wrote in message
news:gjNof.1095$7f3.16@trnddc01...
Gary Drescher wrote:

Perhaps I'm mistaken then. Do you have a pointer to the case?

Cases. Not tonight. If you're in a hurry, search the AOPA site for "NTSB
appeal". Look for older articles.

Sorry, I haven't been able to find any example of the sort I asked about
(namely, an appeals court refusing to hear a case on the grounds that NTSB
decisions were inherently unappealable). I'll wait until you have a chance
to provide a pointer.

Thanks,
Gary