What's the latest on "forecast icing = known icing"

"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
--
Nothing takes longer than a shortcut.
for Email, make the obvious change in the address.

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

--------
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
--
Nothing takes longer than a shortcut.
for Email, make the obvious change in the address.

"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
--
Nothing takes longer than a shortcut.
for Email, make the obvious change in the address.

I don't think you have any idea how the system works. The FAA is going to
charge you with careless and reckless in addition to the regs pertaining to
known ice. They're going to argue longstanding precedent, and you're going
to argue that precedent is not on point *because a non-regulatory
administrative manual* had a definition changed. The ALJ is going to look
at FAA counsel and ask "Well?" FAA counsel is going to say "So what, there
is a well-established body of prior decisions which support the enforcement
action." The ALJ, and the NTSB on appeal, are bound to accept the
interpretation of the FARs which is advanced by the Administrator, unless
the interpretation is arbitrary and capricious.

I don't know that I've seen many cases on the "arbitrary or capricious"
standard as it would be applied to an interpretation of law. I've seen lots
of administrative appeals and petitions for writs of mandamus where it was
alleged that the agency's findings of fact were arbitrary and capricious
because they were not supported by substantial evidence, but that's an
entirely different matter. Case law applicable to cases where there is no
statutory right of appeal adds "illegal" as a basis for issuing a writ of
mandamus, as do many statutes which confer a right of appeal in
adminstrative cases. The point is here FAA counsel gets to tell the ALJ was
is legal and what is illegal, and usually it is the other way around.

"Gary Drescher" wrote in message
. ..
"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
--
Nothing takes longer than a shortcut.
for Email, make the obvious change in the address.

The point is here FAA counsel gets to tell the ALJ what is legal and what
is illegal, and usually it is the other way around.

Your original point was much stronger, and turns out to be incorrect:
contrary to your assertion, FAA v. Merrell does not require absolute
deference to FAA interpretations, but rather requires holds FAA
interpretations to a standard of reasonableness, as I had claimed to begin
with.

I don't think you have any idea how the system works. The FAA is going to
charge you with careless and reckless in addition to the regs pertaining
to known ice.

I addressed this point earlier in the thread. If you have a reply to what I
already argued, please post it and I'll be glad to respond.

They're going to argue longstanding precedent, and you're going to argue
that precedent is not on point *because a non-regulatory administrative
manual* had a definition changed.

Not changed, added. There was no previous written definition. In FAA v.
Merrell, the appeals court addresses the significance of "written guidance"
(or the lack thereof) from the FAA about interpreting the regs; the court
does not limit its discussion to guidance contained in the regs themselves.

The ALJ, and the NTSB on appeal, are bound to accept the interpretation of
the FARs which is advanced by the Administrator, unless the interpretation
is arbitrary and capricious.

Yes; again, that's exactly what I've been saying: the interpretation can be
overturned if it's blatantly unreasonable (arbitrary, capricious, or
otherwise illegal).

I don't know that I've seen many cases on the "arbitrary or capricious"
standard as it would be applied to an interpretation of law.

Then on what basis do you dispute the commonsense claim that it would be
arbitrary and capricious for the FAA to tell pilots, in its main advisory
publication for pilots, that a given regulatory term is correctly
interpreted a certain way, and then to turn around and argue in an
enforcement action that that's the wrong interpretation? (And why wouldn't
it constitute entrapment for the government to publish a manual that
persuades a pilot to commit an infraction, and then bust him for it?)

--Gary

Entrapment is a concept applicable only to criminal prosecutions. It does
not apply to enforcement actions. You do not have a right to counsel, a
right against self-incrimination, or other rights associated with criminal
prosecutions in enforcement actions.

"Gary Drescher" wrote in message
...
The point is here FAA counsel gets to tell the ALJ what is legal and what
is illegal, and usually it is the other way around.

Your original point was much stronger, and turns out to be incorrect:
contrary to your assertion, FAA v. Merrell does not require absolute
deference to FAA interpretations, but rather requires holds FAA
interpretations to a standard of reasonableness, as I had claimed to begin
with.

I don't think you have any idea how the system works. The FAA is going to
charge you with careless and reckless in addition to the regs pertaining
to known ice.

I addressed this point earlier in the thread. If you have a reply to what
I already argued, please post it and I'll be glad to respond.

They're going to argue longstanding precedent, and you're going to argue
that precedent is not on point *because a non-regulatory administrative
manual* had a definition changed.

Not changed, added. There was no previous written definition. In FAA v.
Merrell, the appeals court addresses the significance of "written
guidance" (or the lack thereof) from the FAA about interpreting the regs;
the court does not limit its discussion to guidance contained in the regs
themselves.

The ALJ, and the NTSB on appeal, are bound to accept the interpretation
of the FARs which is advanced by the Administrator, unless the
interpretation is arbitrary and capricious.

Yes; again, that's exactly what I've been saying: the interpretation can
be overturned if it's blatantly unreasonable (arbitrary, capricious, or
otherwise illegal).

I don't know that I've seen many cases on the "arbitrary or capricious"
standard as it would be applied to an interpretation of law.

Then on what basis do you dispute the commonsense claim that it would be
arbitrary and capricious for the FAA to tell pilots, in its main advisory
publication for pilots, that a given regulatory term is correctly
interpreted a certain way, and then to turn around and argue in an
enforcement action that that's the wrong interpretation? (And why wouldn't
it constitute entrapment for the government to publish a manual that
persuades a pilot to commit an infraction, and then bust him for it?)

--Gary

"LWG" wrote in message
...
Entrapment is a concept applicable only to criminal prosecutions. It does
not apply to enforcement actions.

Can you say why you believe entrapment only applies to criminal cases? Here
are a couple of reasons to believe the contrary:

1) In Sorrells v. US, the US Supreme Court wrote "The doctrine of entrapment
in criminal law is the analogue of the same rule applied in civil
proceedings".
http://caselaw.lp.findlaw.com/script...=287&invol=435

2) In Patty v Board of Medical Examiners, a California superior court
sustained a defendant's entrapment defense in an administrative proceeding,
writing "the majority of our sister states which have passed on the legal
question at issue recognize entrapment as a defense in administrative
disciplinary proceedings".
http://online.ceb.com/CalCases/C3/9C3d356.htm

--Gary

"Gary Drescher" wrote in message
...
The point is here FAA counsel gets to tell the ALJ what is legal and
what is illegal, and usually it is the other way around.

Your original point was much stronger, and turns out to be incorrect:
contrary to your assertion, FAA v. Merrell does not require absolute
deference to FAA interpretations, but rather requires holds FAA
interpretations to a standard of reasonableness, as I had claimed to
begin with.

I don't think you have any idea how the system works. The FAA is going
to charge you with careless and reckless in addition to the regs
pertaining to known ice.

I addressed this point earlier in the thread. If you have a reply to what
I already argued, please post it and I'll be glad to respond.

They're going to argue longstanding precedent, and you're going to argue
that precedent is not on point *because a non-regulatory administrative
manual* had a definition changed.

Not changed, added. There was no previous written definition. In FAA v.
Merrell, the appeals court addresses the significance of "written
guidance" (or the lack thereof) from the FAA about interpreting the regs;
the court does not limit its discussion to guidance contained in the regs
themselves.

The ALJ, and the NTSB on appeal, are bound to accept the interpretation
of the FARs which is advanced by the Administrator, unless the
interpretation is arbitrary and capricious.

Yes; again, that's exactly what I've been saying: the interpretation can
be overturned if it's blatantly unreasonable (arbitrary, capricious, or
otherwise illegal).

I don't know that I've seen many cases on the "arbitrary or capricious"
standard as it would be applied to an interpretation of law.

Then on what basis do you dispute the commonsense claim that it would be
arbitrary and capricious for the FAA to tell pilots, in its main advisory
publication for pilots, that a given regulatory term is correctly
interpreted a certain way, and then to turn around and argue in an
enforcement action that that's the wrong interpretation? (And why
wouldn't it constitute entrapment for the government to publish a manual
that persuades a pilot to commit an infraction, and then bust him for
it?)

--Gary

Sorrells quote:

"Suggested analogies from procedure in civil cases are not helpful. When
courts of law refuse to sustain alleged causes of action which grow out of
illegal schemes, the applicable law itself denies the right to recover".

This hardly suppports your argument.

Patty quote:

"it is entrapment to lure a person into the commission of a crime he did not
himself intend to commit." Patty was a professional license revocation based
upon an act which amounted to criminal conduct.

Entrapment cases talk about the government's "overbearing of the will" of
the defendant, to the point where the defendant did not have the mens rea to
commit the offense.

Remember you are asking an agency to act fairly and reasonably. This is the
same agency that treatens to shoot you down (in my neighborhood, anyway) if
you don't make contact with the controlling authority, but then
*steadfastly* refuses to provide timely and accurate information about the
frequencies you need to contact that authority.

But go ahead, make that argument and tell us how it works out for you.


"Gary Drescher" wrote in message
. ..
"LWG" wrote in message
...
Entrapment is a concept applicable only to criminal prosecutions. It
does not apply to enforcement actions.

Can you say why you believe entrapment only applies to criminal cases?
Here are a couple of reasons to believe the contrary:

1) In Sorrells v. US, the US Supreme Court wrote "The doctrine of
entrapment in criminal law is the analogue of the same rule applied in
civil proceedings".
http://caselaw.lp.findlaw.com/script...=287&invol=435

2) In Patty v Board of Medical Examiners, a California superior court
sustained a defendant's entrapment defense in an administrative
proceeding, writing "the majority of our sister states which have passed
on the legal question at issue recognize entrapment as a defense in
administrative disciplinary proceedings".
http://online.ceb.com/CalCases/C3/9C3d356.htm

"LWG" wrote in message
...
Sorrells quote:

"Suggested analogies from procedure in civil cases are not helpful. When
courts of law refuse to sustain alleged causes of action which grow out of
illegal schemes, the applicable law itself denies the right to recover".

This hardly suppports your argument.

It doesn't bear on my argument at all; I wasn't proposing to draw any
conclusion about criminal law by analogy to civil law. I was simply quoting
a US Supreme Court reference to the existence of an entrapment concept in
noncriminal law, directly contradicting your (unsupported) claim that
entrapment applies exclusively to criminal cases.

Patty was a professional license revocation based upon an act which
amounted to criminal conduct.

It was an administrative (noncriminal) case, and any putative criminal
status of the conduct was not essential to the reasoning by which the
entrapment defense was deemed applicable. For example, the decision
approvingly quoted the Florida Supreme Court "that '[i]t is contrary to law
and public policy for an officer or member of an administrative board to
induce the commission of a wrong or a crime for the purpose of securing a
pretext to punish it.' (Peters v. Brown (Fla. 1951) 55 So.2d 334, 336.)".

Note the words "a wrong *or* a crime"; there is no restriction to criminal
offenses as opposed to other infractions. Nor would such a restriction be
germane to the decision's stated rationale for recognizing an entrapment
defense, namely, the erosion of public confidence in justice that would
ensue if authorities can induce the commission of infractions (by persons
not otherwise so inclined) and then prosecute those infractions.

Entrapment cases talk about the government's "overbearing of the will" of
the defendant, to the point where the defendant did not have the mens rea
to commit the offense.

That's one of several forms of entrapment (not the one that's relevant to
what we're discussing).

But go ahead, make that argument and tell us how it works out for you.

I've already offered to report back here if I ever get in trouble. But
meanwhile (since it's likely to be a *very* long wait), it would be helpful
if you could cite even a single example, ever, of the FAA busting a pilot
for trusting a definition of a regulatory term (or any other information)
that the FAA has published in the AIM.

I've already shown here that, contrary to legend, appeals court rulings
require FAA interpretations to meet a standard of reasonableness that would
overturn any such capriciousness; and even if not, the concept of entrapment
would still be applicable. Those due-process safeguards, combined with the
absence of any precedent for busting a pilot for abiding by the AIM, make it
difficult to see why anyone would take seriously the possibility that they
might become the first pilot in the history of aviation to be ensnared by
such a trap.

--Gary

It doesn't bear on my argument at all; I wasn't proposing to draw any
conclusion about criminal law by analogy to civil law. I was simply
quoting
a US Supreme Court reference to the existence of an entrapment concept in
noncriminal law, directly contradicting your (unsupported) claim that
entrapment applies exclusively to criminal cases.

But you haven't shown where it *does* apply to enforcement action.

Patty was a professional license revocation based upon an act which
amounted to criminal conduct.

It was an administrative (noncriminal) case, and any putative criminal
status of the conduct was not essential to the reasoning by which the
entrapment defense was deemed applicable. For example, the decision
approvingly quoted the Florida Supreme Court "that '[i]t is contrary to
law
and public policy for an officer or member of an administrative board to
induce the commission of a wrong or a crime for the purpose of securing a
pretext to punish it.' (Peters v. Brown (Fla. 1951) 55 So.2d 334, 336.)".

Note the words "a wrong *or* a crime"; there is no restriction to criminal
offenses as opposed to other infractions. Nor would such a restriction be
germane to the decision's stated rationale for recognizing an entrapment
defense, namely, the erosion of public confidence in justice that would
ensue if authorities can induce the commission of infractions (by persons
not otherwise so inclined) and then prosecute those infractions.

Entrapment cases talk about the government's "overbearing of the will" of
the defendant, to the point where the defendant did not have the mens rea
to commit the offense.

That's one of several forms of entrapment (not the one that's relevant to
what we're discussing).

But go ahead, make that argument and tell us how it works out for you.

I've already offered to report back here if I ever get in trouble. But
meanwhile (since it's likely to be a *very* long wait), it would be
helpful
if you could cite even a single example, ever, of the FAA busting a pilot
for trusting a definition of a regulatory term (or any other information)
that the FAA has published in the AIM.

But you haven't shown where a pilot was exonerated in reliance upon a
regulatory term that differed from a position advanced by the FAA.

I've already shown here that, contrary to legend, appeals court rulings
require FAA interpretations to meet a standard of reasonableness that
would
overturn any such capriciousness; and even if not, the concept of
entrapment
would still be applicable.

No, you haven't, and no, it wouldn't. There is nothing but dicta talking
about reasonableness. Please cite one holding which mandates that the FAA's
position meet a standard of reasonableness. Please cite one holding which
establishes that reliance upon and AIM provision gives rise to an entrapment
defense if the FAA asserts an interpretation of an FAR to the contrary.

Those due-process safeguards, combined with the
absence of any precedent for busting a pilot for abiding by the AIM, make
it
difficult to see why anyone would take seriously the possibility that they
might become the first pilot in the history of aviation to be ensnared by
such a trap.

--Gary