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Old 11-27-2017, 05:54 PM   #1  
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Question Lack of Law in the FAA

Hello,

I've studied the law on my own for a few years. I've never gone to law school.

Based on what I've seen and heard in regards to the FAA, I have a lot of questions because it doesn't appear as if the FAA follows the law.

For example, due process. The FAA seems to "charge" people without evidence or due process. It appears that the initiation of some type of suspension or jeopardy action comes in the form of a letter which is usually an administrative order written by an FAA attorney and not a judge. I always thought judges issued orders and not attorneys.

It appears as if you are guilty and must prove yourself innocent.

Has anyone fought the FAA or any other administrations? If so, what course of action do you use?

Also, let's say the FAA accuses you of something and your employer places you on unpaid leave pending the outcome of the FAA actions. During that time, you are losing money. Has anyone sued the FAA for loss of income if the FAA prevents you working?

Just curious.
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Old 11-27-2017, 06:19 PM   #2  
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Originally Posted by Aviationluver View Post
Hello,

I've studied the law on my own for a few years. I've never gone to law school.

Based on what I've seen and heard in regards to the FAA, I have a lot of questions because it doesn't appear as if the FAA follows the law.

For example, due process. The FAA seems to "charge" people without evidence or due process. It appears that the initiation of some type of suspension or jeopardy action comes in the form of a letter which is usually an administrative order written by an FAA attorney and not a judge. I always thought judges issued orders and not attorneys.

It appears as if you are guilty and must prove yourself innocent.

Has anyone fought the FAA or any other administrations? If so, what course of action do you use?

Also, let's say the FAA accuses you of something and your employer places you on unpaid leave pending the outcome of the FAA actions. During that time, you are losing money. Has anyone sued the FAA for loss of income if the FAA prevents you working?

Just curious.
Go study the difference between criminal law, civil law and administrative law. The FAA falls under administrative law as do many government agencies.

Once you understand the concept of administrative law then evaluate your questions to fit in the framework given. It will be much clearer.

Here is a start: Chapter 3
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Old 11-27-2017, 07:08 PM   #3  
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What he said.

The fundamental issue is that you have no "right" to fly. The framers didn't include that (for obvious reasons).

So you're being granted a privilege by the government, and they'll administer that as they see fit (limited only congressional interventions such as PBR).

If they kept you from your profession, you might have the makings of a successful lawsuit but you'd probably have to prove malice or at the very least intentional indifference. You're not going to win unless they knew or should have known that you were clean. If they have reason to doubt that, they're allowed to take their sweet bureaucratic time sorting it out.
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Old 11-27-2017, 09:14 PM   #4  
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Originally Posted by Aviationluver View Post
Hello,

I've studied the law on my own for a few years. I've never gone to law school.

Based on what I've seen and heard in regards to the FAA, I have a lot of questions because it doesn't appear as if the FAA follows the law.

For example, due process. The FAA seems to "charge" people without evidence or due process. It appears that the initiation of some type of suspension or jeopardy action comes in the form of a letter which is usually an administrative order written by an FAA attorney and not a judge. I always thought judges issued orders and not attorneys.

It appears as if you are guilty and must prove yourself innocent.

Has anyone fought the FAA or any other administrations? If so, what course of action do you use?

Also, let's say the FAA accuses you of something and your employer places you on unpaid leave pending the outcome of the FAA actions. During that time, you are losing money. Has anyone sued the FAA for loss of income if the FAA prevents you working?

Just curious.
Welcome to what's commonly referred to as the "fourth branch of government" The one they conveniently forgot to teach you about in school...
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Old 11-27-2017, 09:27 PM   #5  
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Quote:
Originally Posted by Aviationluver View Post
Hello,

I've studied the law on my own for a few years. I've never gone to law school.

Based on what I've seen and heard in regards to the FAA, I have a lot of questions because it doesn't appear as if the FAA follows the law.

For example, due process. The FAA seems to "charge" people without evidence or due process. It appears that the initiation of some type of suspension or jeopardy action comes in the form of a letter which is usually an administrative order written by an FAA attorney and not a judge. I always thought judges issued orders and not attorneys.

It appears as if you are guilty and must prove yourself innocent.

Has anyone fought the FAA or any other administrations? If so, what course of action do you use?

Also, let's say the FAA accuses you of something and your employer places you on unpaid leave pending the outcome of the FAA actions. During that time, you are losing money. Has anyone sued the FAA for loss of income if the FAA prevents you working?

Just curious.
Like stated above, you need to get a grasp on the administrative law that the FAA operates under for starters.

You are "guilty until proven innocent" when the FAA administers an Emergency Suspension Order, which is different than a Suspension Order. The Emergency Order is issued to protect the public, because someone has done something so careless or reckless that their continued privilege is endangering the public. Often this stems from a situation where someone broke a slew of regulations, went out and had a bad accident that was the result of those regulatory violations, injuring or killing people, falsification, etc. Pretty serious stuff. In that case, the FAA still has to make a "case" that can be supported by evidence, but it is processed much faster and is usually a matter of days rather than weeks or months.

Otherwise, even regular "suspension orders" are "proposed" when sent to the airman, if you want to fight it, you can.

If you are going to do this, you best study the regulations, the NTSB law parts, the guidance that the inspectors and counsel uses to process these things. Most of the time, us inspectors just want to figure out how to fix the problems and ensure compliance in the future. That used to be by levying fines and suspensions, but now we are required to use compliance philosophy for airmen that are willing and violations that were inadvertent. Unfortunately, sometimes lawyers tell the airmen to not comply and stonewall everything, which means no communication until FAA legal sends a suspension notice. These days, that can usually be easily avoided except in the most egregious circumstances, but it cuts out lawyers, especially the ones that are all too willing to collect money from a client and not really help them in the situation (what I was referring to above). Most of the "aviation attorneys" I have encountered have been anything but, not understanding the regulations and processes. The information is all out there and if you use it, you can do the best thing for your client, but again, I almost never see this. Hopefully, if you are interested in it, you can do the research and become educated on it and be able to serve your client fairly. I am by no means advocating to anyone to not use a lawyer, just that seeing it from the other side, I can't say it's yielded any consistent good results, it usually seems to stem from a lack of understanding, either of aviation in general or the specific regulations. The last thing the opposing counsel wants is to learn about something that totally destroys the case while in court, usually the last thing they want is to even go to court, unless they are pretty damn sure they can win.

If you are unpaid leave pending something like you are discussing, either you "did" do it, or you "did not" do it. If you "did not" do it, you or your lawyer should tell the FAA investigators why you "did not" do it, so it can go away faster. If you "did" do it, you should work with counsel and the investigators to determine how to have it processed as fast as possible, compliance and positive safety attitude are taken into consideration in these cases, and again, very few go down the road of enforcement these days unless it was a willing/overt action to break the rules and not inadvertent, but assuming it was not inadvertent, fighting it when you "did it" is going to be drawn out, messy, possibly with a worse outcome, and most definitely more expensive for your lawyer-time. I'd assume this is what any decent lawyer wants from their client, to know what happened.

I hope you can do the best you can for your clients if this is the path you choose.

Last edited by JamesNoBrakes; 11-27-2017 at 09:42 PM.
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Old 11-28-2017, 07:40 AM   #6  
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I took a graduate Aviation Law class and the only thing I recall is that, "You have the right to remain silent".
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Old 11-28-2017, 02:10 PM   #7  
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What he said.

The fundamental issue is that you have no "right" to fly. The framers didn't include that (for obvious reasons).
Actually not true. The 9th and 10th Amendments pretty much recognize any rights the Constitution doesn't deny. So yes, we have a right to fly and pretty much almost anything else we want to do (without harming others). However the federal government ignores the Constitution and does whatever it wants such as restricting the right to fly and turning it in to a privilege.
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Old 11-28-2017, 02:43 PM   #8  
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Originally Posted by SonicFlyer View Post
Actually not true. The 9th and 10th Amendments pretty much recognize any rights the Constitution doesn't deny. So yes, we have a right to fly and pretty much almost anything else we want to do (without harming others). However the federal government ignores the Constitution and does whatever it wants such as restricting the right to fly and turning it in to a privilege.
I'm speaking practically, not theoretically. Jet airliners would never exist in an anarchist society, too many things would go wrong before you progressed that far.

But I suspect most aviation regulation came about because people got hurt.

Bicycle rights were not protected in the constitution either, and they are barely regulated because they rarely hurt anyone (but the rider).
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Old 11-28-2017, 03:11 PM   #9  
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Originally Posted by SonicFlyer View Post
Actually not true. The 9th and 10th Amendments pretty much recognize any rights the Constitution doesn't deny. So yes, we have a right to fly and pretty much almost anything else we want to do (without harming others). However the federal government ignores the Constitution and does whatever it wants such as restricting the right to fly and turning it in to a privilege.
Interesting observation. Ludicrous, but interesting none the less.

So are you advocating the abolishment of the FAA? Do we turn over standards and certification to individual states, or do we just abolish all aviation standards?
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Old 11-28-2017, 04:28 PM   #10  
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The constitution gives the right to travel - not the mode/method right?
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