Would a NASA form help?

"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 in message
news:qwdhe.458$mv5.380@trndny07...
Gary Drescher wrote:

Naturally the FAA will want to come down hard on this guy. But that has
no bearing on whether they can take any action against him if he meets
the stated ASRS immunity conditions. (I hope for his sake that he submits
an ASRS report by the deadline.)

Well, they've done it before.

From AvWeb 11/13/03

TFRs, ASRS, And Avoiding Enforcement Action...

No, that article doesn't say they've done it before. The article does not
assert that any pilot who met the ASRS immunity conditions was denied
immunity for busting an ADIZ or FRZ. True, the article does quote an FAA
spokesperson as *guessing* that some pilots who filed ASRS reports "might"
have been denied immunity because they failed to get proper preflight
briefings (rather than because they failed to meet the stated immunity
conditions). But even if the quote is accurate (which is uncertain), all we
have is an implausible speculation by a random spokesperson; there is no
assertion (as opposed to a mere guess)--and certainly no evidence--that any
such denial of promised immunity has ever succeeded, or has even been
attempted, or that it could withstand judicial review.

--Gary

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

On Fri, 13 May 2005 23:34:53 -0400, "Gary Drescher"
wrote in
::


From AvWeb 11/13/03

TFRs, ASRS, And Avoiding Enforcement Action...

No, that article doesn't say they've done it before. The article does not
assert that any pilot who met the ASRS immunity conditions was denied
immunity for busting an ADIZ or FRZ. True, the article does quote an FAA
spokesperson as *guessing* that some pilots who filed ASRS reports "might"
have been denied immunity because they failed to get proper preflight
briefings (rather than because they failed to meet the stated immunity
conditions). But even if the quote is accurate (which is uncertain), all we
have is an implausible speculation by a random spokesperson; there is no
assertion (as opposed to a mere guess)--and certainly no evidence--that any
such denial of promised immunity has ever succeeded, or has even been
attempted, or that it could withstand judicial review.

I assume you are referring to this part of the article:

FAA, spokesman William Shumann told AVweb, "In those cases where a
penalty was imposed even though an ASRS report was filed, it might
be because the pilot didn't check NOTAMs or otherwise comply with
FAR 91.103, which requires a pilot to 'become familiar with all
available information concerning that flight.'" As for satisfying
those requirements, "If one wants to be legalistic, the Automated
Flight Service Stations are the only 'official' source of
information, and DUAT is the only 'authorized' source outside of
AFSS," but that applies only to Part 121 and 135 -- not Part 91
operators.

Part 91 operators "can use whatever sources of weather and other
information they wish to meet the requirement of getting all the
information necessary for a safe flight," said Shumann. Concerned
Part 91 operators may feel more comfortable using only the
"official" sources listed above -- regardless of the type of
operation.

Actually, it says Part 91 operators needn't obtain a weather briefing
from official sources. Given it is being reported that the PIC did
not receive a weather briefing, he may still fall under the ASRS
immunity the way I read it.

Don't get me wrong. If the PIC did indeed freeze at the controls to
the point that the student had to land the aircraft, as is being
reported, he should have his certificate revoked, IMO.

George Patterson wrote:
Gary Drescher wrote:


Until there's a coup d'etat, the FAA's actions are subject to judicial
review.


And if the FAA doesn't like the results of that review, they take it to
the NTSB, who will almost always overrule the judge.

That's not the judicial review. You never see a true judge until after
the NTSB appeal has been exhausted.

Gary Drescher wrote:
"George Patterson" wrote in message
news:ea5he.93$n95.6@trndny08...

Gary Drescher wrote:

Until there's a coup d'etat, the FAA's actions are subject to judicial
review.

And if the FAA doesn't like the results of that review, they take it to
the NTSB, who will almost always overrule the judge.


Overrule the judge? Are you claiming that the NTSB is exempt from oversight
by the judiciary?

He's confusing the ALJ with the real judiciary.

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.

Gary Drescher wrote:
Naturally the FAA will want to come down hard on this guy. But that
has no
bearing on whether they can take any action against him if he meets
the
stated ASRS immunity conditions. (I hope for his sake that he submits
an
ASRS report by the deadline.)

--Gary

Exactly. Just because someone does something that you (in this case,
the collective 'you' would be everyone associated with GA, myself
included) you can't change the rules just to punish them. Point
forward, make the appropriate laws and punishments for this type of
incident and prosecute the next guy who does this.

"Larry Dighera" wrote in message
...
Don't get me wrong. If the PIC did indeed freeze at the controls to
the point that the student had to land the aircraft, as is being
reported, he should have his certificate revoked, IMO.

Yup. *That* should certainly count as a Section 44709 exception to ASRS
immunity, as set forth in the written ASRS policy.

--Gary