Never, ever, ask the chief counsel a question!

[MAKG1]

Will someone please tell me why it might be a good idea for a pilot to ask the chief counsel a question in writing?

In a nutshell, to prevent sanctions for doing something you didn't realize (or didn't want to realize) was not allowed, because something in the regulations is ambiguous.

 

[midlifeflyer]

Seems like we should be listening to you on this matter then. Or at least, you can be expected to point us the person who does know.

I don't know whether anyone should be listening to me just because I happen to be a lawyer. But, FWIW, I gave information on the question earlier in a response to one of JimNTexas' posts.

 

[midlifeflyer]

I can find nothing in the Administrative Procedure Act where it states that the courts must give "near-complete deference" (or any sort of deference) to an agency's interpretation. If you could point to where that deference is stated in the statute that would help - otherwise it was always my understanding that the deference was an adopted judicial rule.

I don't know for sure but I suspect you are correct. A statute requiring the courts to defer to an administrative agency would likely be ignored stuck down as a violation of separation of powers.

 

[JimNtexas]

I don't know for sure but I suspect you are correct. A statute requiring the courts to defer to an administrative agency would likely be ignored stuck down as a violation of separation of powers.

As I mentioned before, I'm not a lawyer but I am an Enrolled Agent, which licenses me to represent clients to the IRS on the same basis as an Attorney right up to the Tax Court door.

From this background I know of many cases in which the Tax Court has overruled the opinions of the IRS counsel as to what the Tax Code really means. Taxpayers are treated way better than pilots by this system, which is why from my non-lawyer view the FAA/NTSB administrative law system looks like it was imported from North Korea.

Which is why disregarding FAA Counsel letters is risky and shouldn't be done lightly.

And I also mentioned the super high profile case (in the tax world anyway) of Loving V IRS in which Federal district and appeals courts absolutely slammed the door on a major IRS initiative because the black letter law written by Congress never gave the IRS the authority to implement the regulations they published. Because neither 'letters' or even official agency regulations are themselves 'laws'.

====

MAKG provides a rational reason to consider asking for an FAA legal interpretation:

In a nutshell, to prevent sanctions for doing something you didn't realize (or didn't want to realize) was not allowed, because something in the regulations is ambiguous.

OK, that's sounds reasonable. Just realize that you may open Pandora's box concerning the 'something' that you're not sure about doing. If you consult an aviation attorney, and he helps you craft the question in such a way that the answer will hopefully be narrowly construed to affect only the unique aspects of your situation, then fine, go ahead and ask.

If, on the other, you just want to explore some corner of the rules/laws/regulations/letters/dictates etc out of general curiosity,

PLEASE DON'T ASK IN WRITING.

Asking your question to an FAA lawyer in writing may generate an answer that adds new restrictions on pilots, restrictions that are unvetted by anybody outside the FAA.

That's a bad thing!

 

[denverpilot]

Nate, who do you think should write such things? Craig Fuller?

What do you think staff is for? They do a lot more than haul coffee.

The statements that there is no review are just false. There may (or may not) be no external review, but the process does not allow a single staffer to draft a rule and have it entered into the Federal Register. There is review up the chain of command.

Oh, as corrupt as they are, I have this aversion to agencies making up their own laws, instead of lawmakers doing it.

A single staff attorney, even if you believe the approvals required in their chain of command are given more than a passing thought and a rubber stamp, does not constitute a Republic nor a representative form of government.

We have a process to change laws. It includes the NPRM process. Many of these "interpretations" of badly written laws have changed long-standing interpretations of everyone with skin in the game.

Perhaps instead of giving any legal weight to these letters, the correct answer is that the opinion should be sent to lawmakers to decide if it's what they intended the law to be, or so that appropriate NPRM'd changes can be done?

The absence of a properly written and clear law shouldn't be filled in by an Attorney and their staff. The law should be changed via the appropriate law change procedure.

 

[midlifeflyer]

From this background I know of many cases in which the Tax Court has overruled the opinions of the IRS counsel as to what the Tax Code really means. Taxpayers are treated way better than pilots by this system, which is why from my non-lawyer view the FAA/NTSB administrative law system looks like it was imported from North Korea.

An analogy to North Korea (for virtually anything in the US) is extreme.

But the point about deference is well-taken. There are differences, of course. For a simple one, the Tax Court is kind of a hybrid. The NTSB, which reviews the FAA's decisions in enforcement cases, is just a fellow administrative agency. And, at least until the Pilots Bill of Rights, the NTSB was required by statute to defer to the FAA.

The Tax Court is an Article I federal court. At the same time, the Tax Court is a specialized court with subject expertise. It's not surprising that a Court with the same (or better) expertise in the subject would not defer to a junior administrative agency. That specialization is not true of most federal agencies and the federal courts that review their decisions.

As I said, though, the point is well-taken. With the FAA and NTSB, we had an avenue of pilot appeal to a hearing before a Administrative Law judge who was required to defer to the FAA's interpretation. One of the things the Pilots Bill of Rights did was take away that required deference. Whether it will have the hoped-for effect remains to be seen.

btw, I assume you found the error in referring to Tile 14 of the US Code as the embodiment of aviation law