Chevron, FAA, and you

[PT20J]

Hey, question for our attorneys here: Since SCOTUS overturned the Chevron deference doctrine, what is the effect on FAA enforcement based on its interpretation of the often vague FARs, and what weight do chief counsel legal opinions carry, and what about appeals to the NTSB? It kind of sounds like the FAA (and NTSB) might have to be much more circumspect about enforcement, but I don’t know. 

[N201MKTurbo]

You missed the party on this.

 

[midlifeflyer]

There may be minor changes to the way they are looked at, but I don’t expect much change in the results except in some edge cases.
 

For example, someone in the BeechTalk forum asked whether this would have change the result in Trent Palmer’s case. My answer was, the DC Circuit didn’t defer to the FAA .  The DC Circuit agreed with the FAA   

[Z W]

It will be interesting, and will depend on what the FAA does.

The Jarkesy case says if they want to fine you for regulation violations, they may have to bring the case originally in a federal district court, and the accused has a right to a jury as the finder of fact.  I say may because it's not quite a blanket ruling that all civil penalties involve a 7th amendment right to a jury trial, but that some certainly do.

That may make a huge difference in some cases.  Right now, the hearing is done before a FAA-employed administrative law judge.

However, most FAA enforcement cases aren't really about the civil penalties / fines. The FAA will still have the option to not seek those penalties and instead just seek suspension or revocation of the pilot's certificate before the administrative law judge. My prediction is this will be what they do.

Now, after they've continued doing what they've always done, there is a chance that when you appeal the case to the district courts and on up to the court of appeals, those regular judges will no longer give the FAA as much deference on their interpretation of their own regulations, based on the Jarkesy court's criticism of the Chevron doctrine, and instead will try to interpret the regulations as written. FAA counsel opinion letters should receive about zero weight.

That is, in my opinion, probably a good thing, but maybe also a bad thing for the pilot.  The opinion letter authorizing a lot of what we call owner maintenance comes to mind. If the courts aren't going to give that any weight, and instead limit us to doing only the maintenance the regulations allow, I'm not sure owners can inflate their own tires any more. This was probably intended by the court, to encourage agencies to write better regulations and not just rely on things like counsel opinion letters, but may be messy to deal with in the short term.

All things considered, though, the facts of the case will still be determined by the FAA-employed administrative judge with no right to a jury. And, just so everyone is clear, it is far more likely that the facts of the case will decide whether you keep your license than the interpretation of any law. Judges of all kinds are very good at deciding cases in ways so they are not overturned on appeal, and the best way to do that is to find the facts as you want them to be.

I'm sure someone is going to ask for a jury trial on a FAA license revocation action under Jarkesy, and then we'll find out how much of it applies. It will be a few years (or a decade) before we get an appellate decision to really let us know.  So all of this is just speculation. But at least in theory, it should now be harder for the FAA to revoke a pilot certificate unless they can point to a regulation that was violated as written, and not just as they interpret it.

[midlifeflyer]

4 hours ago, Z W said:

However, most FAA enforcement cases aren't really about the civil penalties / fines. The FAA will still have the option to not seek those penalties and instead just seek suspension or revocation of the pilot's certificate before the administrative law judge. My prediction is this will be what they do.

That's a good bet since the use of civil penalties against pilots is already very rare. They tend to be reserved for entities - you don't necessarily want to suspend or revoke an Part 135 or 121 certificate  for a violation unless it's exceedingly serious or repetitive.  There are probably others, but the civil penalties I see against humans usually involve those who don't have a certificate to suspend or revoke, refuse to surrender a revoked or suspended certificate, or or engage in conduct that is not a pilot deviation. That general; policy, while not specifically stated, is reflected in the Sanction Guidance Tables in FAA Order 2150.3

Jakesey definitely raises interesting questions on the civil penalty side. It remains to be seen whether it will be limited to the Court's "known in the common law" analysis. which I think was a large part of the decision against the SEC.

[Schllc]

On 7/5/2024 at 6:56 AM, midlifeflyer said:

There may be minor changes to the way they are looked at, but I don’t expect much change in the results except in some edge cases.
 

For example, someone in the BeechTalk forum asked whether this would have change the result in Trent Palmer’s case. My answer was, the DC Circuit didn’t defer to the FAA .  The DC Circuit agreed with the FAA   

I can think of one case that will almost certainly come back quickly, the ruling the FAA made about warbirds, and instructors benefiting from the flights, even if they aren’t paid for instruction.  
this basically shot down a whole lot of little guys that toured air shows. And was an excellent example of the bureaucracy interpreting the rules the way they want to read them, even when the plain language says otherwise, and has always been interpreted differently. 

Bureaucracy across the board is long overdue for a stern hand slap.  

[midlifeflyer]

12 hours ago, Schllc said:

I can think of one case that will almost certainly come back quickly, the ruling the FAA made about warbirds, and instructors benefiting from the flights, even if they aren’t paid for instruction.  
this basically shot down a whole lot of little guys that toured air shows. And was an excellent example of the bureaucracy interpreting the rules the way they want to read them, even when the plain language says otherwise, and has always been interpreted differently. 

Bureaucracy across the board is long overdue for a stern hand slap.  

Edited after reading the case again:

I saw it as one of those cases where the FAA used interpretation to get at conduct they couldn’t get at under a different theory because of evidence problems. There will probably be some cases like that affected but in that case it was also agreement by the Court of Appeals rather than deference.  The court specifically rejected deference as inapplicable because it found the regulation was not ambiguous, and ended up saying:

***

We agree with Warbird that the regulation is unambiguous, but we do not agree that “carry” does not include flight instruction. Like the Administrator and the ALJ, we find that “carry” has a broad meaning and includes flight instruction.

***

IOW, the Court read the “plain language” the same as the FAA .

[Schllc]

2 hours ago, midlifeflyer said:

I saw it as one of those cases where the FAA used interpretation to get at conduct they couldn’t get at under a different theory because of evidence problems.

Exactly, the bureaucracy “decided” after years of interpretation, where people had made investments, plans, and operated businesses, until one day some person inside, decided they didn’t like the way it was interpreted. Why?  Why do they have the power to do this without legislation?

Ben Franklin said “Those who would give up essential Liberty, to purchase a little temporary Safety, deserve neither”.  

[jetdriven]

Thing is, now, you’re gonna have a judge that has no experience at all in the subject matter, making making the determination instead of the agency. And you may have different courts and different districts ruling in different ways. So Warbird guys can give instruction in California, but not Texas. Then people are moving the airplanes to California to get instruction. This may not be as good as  we think it will. 

[Schllc]

27 minutes ago, jetdriven said:

Thing is, now, you’re gonna have a judge that has no experience at all in the subject matter,

Isn’t this the reality in all judicial matters?  Judges or juries are seldom experts in the field of the litigation. 
I am not smart enough to tell anyone how this will come out in the end, but a course correction was needed. The bureaucrats are not supposed to be making law, period. 
time will tell…

[dkkim73]

2 hours ago, jetdriven said:

 you may have different courts and different districts ruling in different ways. So Warbird guys can give instruction in California, but not Texas. Then people are moving the airplanes to California to get instruction. 

Seems like the example might go the other way around...

There might be an interesting argument about federal pre-emption. Can make a good argument that operational aviation laws need to be uniform. OTOH your example is more about intra-state commerce, so maybe we will see some heterogeneity. 

We are seeing an interesting experiment in federalism now with heterogeneity among the states. 

[jetdriven]

1 hour ago, Schllc said:

Isn’t this the reality in all judicial matters?  Judges or juries are seldom experts in the field of the litigation. 
I am not smart enough to tell anyone how this will come out in the end, but a course correction was needed. The bureaucrats are not supposed to be making law, period. 
time will tell…

It is squarely in the purview of the agency of creating the law. Thats the reason for the existence of it.  But the interpretation will not default to these agencies, it will now be decided by judges and perhaps juries.  Remember that OJ got off because "lots of people have the same blood type".  Anyways, lets see how it goes before we pop champagne.

[dkkim73]

1 hour ago, Schllc said:

but a course correction was needed. The bureaucrats are not supposed to be making law, period. 
time will tell…

That is the central point. Legislature exists to craft law, and make appropriations. Judiciary exists to resolve statutory ambiguity. 

The appeal to the idea of having "experts" decide everything has unintentionally expanded into an effectively unaccountable administrative class. While we all know examples of excellent, thoughtful, technical bureaucrats, many are not. And institutional inertia tends to cement decisions. The deference doctrine set the bar arguably too high for many years in challenging decisions. 

 

[midlifeflyer]

1 hour ago, dkkim73 said:

Seems like the example might go the other way around...

There might be an interesting argument about federal pre-emption. Can make a good argument that operational aviation laws need to be uniform. OTOH your example is more about intra-state commerce, so maybe we will see some heterogeneity. 

We are seeing an interesting experiment in federalism now with heterogeneity among the states. 

It's not a pre-emption issue.  The "different courts and different districts ruling in different ways" would be federal, not state, courts which might come to different conclusions. Those kinds of splits definitely happen but outside of  politically charged issues, they aren't all that common. 

[midlifeflyer]

1 hour ago, jetdriven said:

it will now be decided by judges and perhaps juries. 

Probably not juries, at least not officially. Keep in mind the separate roles of judges and juries. Interpretation of statues and regulations is a judicial function; juries apply the the judge's instructions on what the law is to the facts the jury finds are more probably the truth. (civil standard).  I say "not officially" because there is always a chance of jury nullification, although I don't see that happening much in this area.

There are definitely administrative areas where cases like this will make a difference. I guess we'll see whether there is much impact on ours.

[Schllc]

1 hour ago, dkkim73 said:

That is the central point. Legislature exists to craft law, and make appropriations. Judiciary exists to resolve statutory ambiguity. 

The appeal to the idea of having "experts" decide everything has unintentionally expanded into an effectively unaccountable administrative class. While we all know examples of excellent, thoughtful, technical bureaucrats, many are not. And institutional inertia tends to cement decisions. The deference doctrine set the bar arguably too high for many years in challenging decisions. 

 

The bigger problem with where the administrative state has gone, is that there is no check and balance, and no consequence for abuses. 
you can’t reprimand them, you can’t fire them, and they can beat most opponents with a war of attrition because they have unlimited budgets, paid for by their victims. 

[Scott Ashton]

The bigger problem with where the administrative state has gone, is that there is no check and balance, and no consequence for abuses. 
you can’t reprimand them, you can’t fire them, and they can beat most opponents with a war of attrition because they have unlimited budgets, paid for by their victims. 

You also cannot force the government to enforce their own regulations, if they choose not to. We found this out in our litigation against the town of East Hampton. If the FAA chooses to not enforce Grant Assurances, citizens have no course of action to force them to do so.


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