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#41
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"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. |
#42
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"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 |
#43
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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 |
#44
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"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 |
#45
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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. |
#46
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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. |
#47
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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. |
#48
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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. |
#49
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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. |
#50
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"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 |
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