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>>Put aviation-friendly people in the inspector positions and the problem
changes dramatically for the better (though the situations Constitutional
standing remains as bad as ever).<<

Gee, makes me glad now that I did my aviation career as an inspector and not
just one of you pilots. Please do continue this thread however, Im
enjoying the discussion. Although I dont think you know what youre talking
about.

Best



"Kevin Brown" wrote in message
news:knva7a.00b.ln@dimwit.sysexperts.com...
| On 20 Mar 2002 07:46:47 -0800, Michael wrote:
| > kevin@sysexperts.com (Kevin Brown) wrote
| > > Theres one other thing that everyone here should be aware of: the
result
| > > of FAA v Merrell was that the U.S. Circuit Court (I think...might have
| > > been the Court of Appeals but I dont think so) ruled that the NTSB is
| > > bound by the FAAs interpretation of the regulations AND THAT THE FAA
| > > LAWYER PROSECUTING THE CASE IS THE FAAs OFFICIAL REPRESENTATIVE IN
| > > THAT CAPACITY.
| >
| > Right. I wasnt going to go into legal precedent, but since you did,
| > this is the correct precedent. Your explanation (which I have
| > snipped) is also correct.
| >
| > What you are sort of missing is that its VERY rare for an aviation
| > matter to go that far up. In most cases the circuit court will not
| > review the NTSBs decision at all.
|
| Im not surprised by this. But its not the Circuit Court that matters
| here, but the NTSB itself. That the Circuit Court wont even bother to
| look at most cases appealed from the NTSB level just makes the NTSBs
| decision that much more binding, and makes the result of the Merrell
| case that much more important and chilling.
|
| > Thats right - youre NOT entitled
| > to a day in court, and will rarely get one. In theory, a significant
| > point of law must be at issue. In practice, the reason this
| > particular case was reviewed is that the apellant had political clout.
|
| Yeah, that figures.
|
| > In the case of FAA v Merrell, the FAAs interpretation of its own
| > regulations was so egregiously wrong that even the NTSB refused to
| > affirm it. The FAAs position in the appeal was that the NTSB had to
| > accept the FAAs interpretation, and the court agreed. I can assure
| > you that had the NTSB ruled in favor of the FAA (as it usually does)
| > and Merrell appealed, the Circuit Court would not have heard the
| > appeal.
|
| No doubt.
|
| > Thus while this case theoretically sets only a local precedent, in
| > practice the possibility of overturning it or even establishing
| > contrary precedent is essentially nil.
|
| Right. But my point is that the situation is even worse than that, namely
| that while it used to be the case that the NTSB would occasionally find
| against the FAA, those days are gone. This ruling forces the NTSB to
| side with the FAA *every time* no matter what it might actually think
| of the FAAs interpretation. So if you know that youre going to lose
| when you get to the NTSB, and the NTSB is the only "independent" review
| of the case youre going to get, then you may as well not even start
| down the path of a certificate action: all that will happen is that
| youll pay a ton of money and STILL lose. And worse, youll now have
| a pissed-off FAA to contend with, so the consequences are likely to be
| much worse for you (even if you *didnt* have to pay the legal costs)
| than they would be if you were to simply comply with whatever they ask
| (or negotiate yourself a more reasonable deal with the inspector).
|
| > > There are some people (even aviation attorneys!) who believe the FAA
| > > wont abuse their power in that way.
| >
| > Aviation attorneys MUST believe that, if only publicly. After all, if
| > they admit otherwise, who will ever retain one?
| >
| > This is the key thing to be understood. Under the current system, the
| > holder of a certificate issued by the FAA has no legal rights as we
| > understand them.
|
| No rights at all, Id say. Only "privileges" which can be revoked
| at the FAAs whim. A situation which, I might add, is in *direct*
| violation of the U.S. Constitution.
|
| > The FAA makes the rules, interprets the rules (on a
| > case-by-case basis with no requirement to be consistent from case to
| > case), and asesses the punishments. Certificates can (and have been!)
| > lost on a whim. You cant win.
|
| Right.
|
| Which means there is only one possible solution: get pilots to
| start working for the FAA as inspectors. Since inspectors are the
| frontline guys and the rest of the process is (from the discussion
| above) "automatic", its the decision of the inspector that counts.
| Put aviation-friendly people in the inspector positions and the problem
| changes dramatically for the better (though the situations Constitutional
| standing remains as bad as ever).
|
| Guess theres not much of a chance of that happening, though, is there?
|
|
| --
| Kevin Brown kevin@sysexperts.com
| This is your .signature virus: < begin 644 .signature (9V]T8VAA(0K0z end >
| This is your .signature virus on drugs: <>
| Any questions?

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