Matthew
Touchdown! Greaser!
Back in 2022, the Supreme Court knocked down the OSHA vaccine mandate.
Supreme Court: Chevron Deference
- Thread starter AchillesLastStand
- Start date
Matthew
Touchdown! Greaser!
The only arguments I remember about changing definitions of “compensation” were regarding towing gliders as a private pilot.
There was a letter sent from someone inside FAA. I think it was unofficially called the “FAQs”. I might still have a copy somewhere. It said that logging time was a form of compensation, so a private pilot, even though allowed to tow, could not log the time otherwise it would require a commercial. That set off all kinds of alarms at clubs that rely on private pilots. Eventually the General Council cleared it up by saying that the regs clearly say that private pilots are able to tow, and since they are not carrying passengers or property for hire, that the compensation rules don’t apply. And that FAQ letter was scrubbed from the FAA website. I think the GC letter even said that FAQ was not authorized by that office.
Ed Haywood
En-Route
Dumb question just because it never occurred to me before. Once you get your commercial ticket, are all those rules about compensation out the window and it's anything goes for cost sharing? Or do you then get into 100 hour inspections and other for-hire compliance issues?
MauleSkinner
Touchdown! Greaser!
No…Commercial pilots can fly for compensation, but If “cost sharing” is part of the discussion, they’re probably exercising Private pilot privileges, so those regs still apply.
Last edited:
Including non-regulatory restrictions, like having the correct insurance in the event something bad happens.
Regulations can be ambiguous. Some of us will interpret the vagueness in our favor and others will interpret them the way to make it easy for the bureaucrats or to the way they think they "want" it.
Some will write to the FAA chief counsel for their version. There are many of these out there. You can search for them here.
Under Chevron knowing the Agency's interpretation will prevail, no matter how silly, many will treat them as de facto regulations or shadow regulations. Post Chevron, in a normal trial, both sides get to demonstrate their positions and a judge implements what the law and regulations actually say.
I doubt there will be many challenges to the real regulations, they have been through the NPRM process and are usually adjudicated in a reasonable manner. The de facto/shadow regulations will be the battle point. For example there is nothing in the medical regulations requiring you to ground or even report prostate cancer, but if you don't, they will smite thee. They could add a 15th prohibited condition, but even they would be too embarrassed to try to put something that silly through an NPRM and try to change it. So they use the shadow rules to make work for themselves.
This is a win.
Some will write to the FAA chief counsel for their version. There are many of these out there. You can search for them here.
Under Chevron knowing the Agency's interpretation will prevail, no matter how silly, many will treat them as de facto regulations or shadow regulations. Post Chevron, in a normal trial, both sides get to demonstrate their positions and a judge implements what the law and regulations actually say.
I doubt there will be many challenges to the real regulations, they have been through the NPRM process and are usually adjudicated in a reasonable manner. The de facto/shadow regulations will be the battle point. For example there is nothing in the medical regulations requiring you to ground or even report prostate cancer, but if you don't, they will smite thee. They could add a 15th prohibited condition, but even they would be too embarrassed to try to put something that silly through an NPRM and try to change it. So they use the shadow rules to make work for themselves.
This is a win.
In the Harrington letter, which discussed ferrying of CAF aircraft by private pilots who did not pay the expenses, they said that the pilot could avoid compensation by not logging the flight.
Last edited:
Matthew
Touchdown! Greaser!
Here's the Umphres (2010) letter regarding PP towing for compensation or hire. It does reference the FAQ.
There are references in there, too (Harrington - 1997), about logging time and if that's considered compensation.
I don't think ferry flights are something that a student pilot would be expected to engage in, and I doubt that the FAA intends to prohibit scholarships.
Even with a commercial ticket, you may be subject to part 135 if "holding out" for private carriage, or part 121 for public carriage (typically, scheduled service). What was a pro-rata sharing of costs among friends under part 91 when the pilot only had a private ticket may become part 135 private carriage if the friends pay all the costs. What a commercial ticket, without more, allows you to do is accept compensation when acting as PIC on a flight that is still within the confines of part 91. And 100-hour inspections are required if you are providing plight instruction in an aircraft you also provide. FAR 91.409(c)
Getting back to the crux of this thread -- is the administrative agency bound by the text of the law, or can it "interpret" its way to achieve desired ends. For example, the FAA says Trant Palmer was showboating to the annoyance of neighbors and want to ding him for violating the 500-foot rule (not to mention the all-encompassing "careless or reckless" sec. 91.13). He says 'I had permission to land on my friend's adjacent property and was conducting a low pass to inspect the landing site' -- which is permitted by the regs and recommended by the AIM (not required, only because the AIM is not binding regulation). What does the FAA have to prove to ding him?
Is he NOT allowed to land on private property because the FAA said so after the fact? Is he not allowed to do what would otherwise be permitted under the regulations, only because the neighbors complained? What is the right way to resolve the conflict between permissible off-airport landing and the 500-foot rule? Moreover, is a court reviewing the certificate action obligated to defer to the FAA's interpretation of the regulations that IT wrote? Or, can (even MUST) it take the regs at face value, as a pilot reading them might?
flyingcheesehead
Touchdown! Greaser!
Yup... But none of that represents an "ever increasing definition of what constitutes compensation" which was my point.
The FAQ file was useful for pilots in understanding the sometimes confusing nature of the FARs and their interpretations, but it was merely a document created by a guy named John Lynch at the FAA, and had no official weight behind it, so they got rid of it. Seems like an opportunity for someone who is *not* an FAA employee to make sense of the FARs. Hmmm.
Like with most things in aviation, the higher your certificate level and more ratings you get, the more nuance there is.
Let's take the following example: I'm going to fly down to Janesville for lunch at Bessie's Diner in my Mooney, with three friends along.
If I'm a Private pilot, I pay 1/4 of the costs and I'm good. Someone else can pay 3/4.
If I'm a Commercial pilot and I don't want to pay anything, well... Now it's for compensation or hire. But I have a Commercial, so I'm good, right? No. First, this operation cannot be Part 91 because it doesn't comply with 91.147(a) "...that begin and end at the same airport and are conducted within a 25-statute-mile radius of that airport." And even if it was just a sightseeing flight that took off, remained within 25sm, and landed at the same airport I'd have to be part of a drug testing program and have a Letter of Authorization from the FAA. The flight does meet the definition of noncommon carriage under 110.2 "aircraft operation for compensation or hire that does not involve a holding out to others" because they're still my friends so I'm not holding out to the public. Thus, per 119.1(a)(3), Part 119 applies. 119.23(b) says I must comply with Part 119, Subpart C, conduct the operation IAW part 135, and be issued operations specifications. So, yeah, this is gonna be a whole thing, and thus...
...nobody really does it and just exercises Private Pilot privileges and pays their quarter of the cost.
Really, the Commercial pilot certificate is what you need to fly *for somebody else*. Be that corporate, charter, or aerial work (cropdusting, pipeline/powerline patrol, banner towing, aerial survey, etc), you can get a job as a pilot *for somebody else*. If you are providing both your pilot services and the airplane, you are now an air carrier and that is a LOT more work.
MauleSkinner
Touchdown! Greaser!
false.
flyingcheesehead
Touchdown! Greaser!
You know somebody who has gotten an air carrier certificate so they could go for a $100 hamburger and have their friends pay that last $25???
MauleSkinner
Touchdown! Greaser!
No. I know people who choose to fly outside of work.
All,
Please remember to stay on topic and keep things civil, otherwise the thread will become locked permanently.
Please remember to stay on topic and keep things civil, otherwise the thread will become locked permanently.
Prior to this new ruling, a court was so obligated. Now a court may defer to the agency interpretation, but it may also consider whether the accused’s interpretation is valid.
This is a step in the right direction. A further step would be a principle in civil law similar to the “rule of lenity” in criminal law.
It was a pointed, somewhat hyperbolical response to the hyperbolical claim that agencies won't be able to do 'anything' going forward.
The decision changed an aspect of how they have to go about regulating and how explicit the legislators have to be when empowering an agency to write regulations. Agencies would probably be well advised to go back to congress and ask for specific authorization for things that they regulated while relying on Chevron deference. Their power to regulate is delegated by people through their elected representatives. And if they can't get specific direction from congress, well maybe it's not something they should write regulations about.
Last edited:
3393RP
En-Route
- Joined
- Oct 8, 2012
- Messages
- 4,219
- Display Name
Display name:
3393RP
Maybe not.
Judge Sean D. Jordan of the US District Court for the Eastern District of Texas cited Loper Bright when granting an injunction June 28 to temporarily freeze the Biden administration's overtime rule from going into effect for the state of Texas, just hours after the Supreme Court issued the ruling.
Businesses Quick to Deploy Chevron's End to Attack Labor Rules
The US Supreme Court’s landmark ruling curbing agencies’ rulemaking power is already cropping up in numerous legal challenges to US Labor Department rules less than a week after the decision.
Matthew
Touchdown! Greaser!
I just read the article.Maybe not.
Judge Sean D. Jordan of the US District Court for the Eastern District of Texas cited Loper Bright when granting an injunction June 28 to temporarily freeze the Biden administration's overtime rule from going into effect for the state of Texas, just hours after the Supreme Court issued the ruling.
Businesses Quick to Deploy Chevron's End to Attack Labor Rules
The US Supreme Court’s landmark ruling curbing agencies’ rulemaking power is already cropping up in numerous legal challenges to US Labor Department rules less than a week after the decision.news.bloomberglaw.com
It’s about the Department of Labor changing salary levels that are used to determine the cutoff between when an employee is eligible for overtime pay or is at an “executive” level and is not. About 23 States have been fighting this in courts since it was issued in April. The judge has said that it’s likely not legal, and that without Chevron he’s putting it on hold. Now Texas has a chance to take this into court and see if they can convince a court to see it their way.
I can’t cut and paste easily from my phone, but the judge said a plain reading of the law says job duties and responsibilities determine who’s executive and exempt, not salary.
Here’s the ruling:
Last edited:
Just read it. That would seem to be an excellent example of how the new ruling should be applied.
flyingcheesehead
Touchdown! Greaser!
I fly outside of work all the time - That doesn't mean I am going to get an air carrier certificate to not have to pay my quarter. So what is false about the original statement?
MauleSkinner
Touchdown! Greaser!
Your statement was that nobody cost shares once they have a Commercial certificate.I fly outside of work all the time - That doesn't mean I am going to get an air carrier certificate to not have to pay my quarter. So what is false about the original statement?
Nobody but you is talking about getting a 135 certificate.
flyingcheesehead
Touchdown! Greaser!
No, my statement was that:
This sentence was at the end of a whole block about getting an air carrier certificate, which is what the "this" was referring to, and I specifically said in the second quoted line, which I also quoted in the previous post, that people exercise their private pilot privileges and cost share...
So I'm not sure how you can read that as my "statement was that nobody cost shares". My statement was that *everybody* continues to cost share, even if they're commercial or ATP.
MauleSkinner
Touchdown! Greaser!
I would suggest not quoting something that has nothing to do with your post. Might reduce confusion.
flyingcheesehead
Touchdown! Greaser!
I'll be sure to agree with you in less obvious ways in the future.
It wasn’t “somewhat hyperbolic”, it was nonsense. What it changed was that prior to this ruling, you could sue the government if their policy was contrary to existing law, capricious, or arbitrary; now you can sue them because you don’t like the policy. And it isn’t elected officials with a constituency they’re accountable to making policy decisions, but unelected judges literally making policy.
It’s judicial activism at its finest and everything conservatives have been telling us judges should NOT be doing for the entirety of my lifetime.
MauleSkinner
Touchdown! Greaser!
I would appreciate that.I'll be sure to agree with you in less obvious ways in the future.
I think that’s disproven by the case linked in post #222 above. I believe that’s the first citing of the new ruling, and all the judge did was to hold the DoL to the law as passed by Congress rather their own created standard.
That’s exactly what the USSC ruling is supposed to bring about and I expect it to work well. It has nothing to do with who can sue whom; it’s all about not giving agencies carte blanche to do as they please.
Matthew
Touchdown! Greaser!
The unelected agencies had been allowed to make the laws, rather than congress.
I wonder how much is really going to change (like the number of lawsuits), now that the courts can consider both sides.
2-Bit Speed
Pattern Altitude
- Joined
- Nov 9, 2021
- Messages
- 1,553
- Display Name
Display name:
2-Bit Speed
Probably depends on the court.
2-Bit Speed
Pattern Altitude
- Joined
- Nov 9, 2021
- Messages
- 1,553
- Display Name
Display name:
2-Bit Speed
It supports (or re-affirms) separation of powers which is what liberals are telling us we need right now.
See here’s the funny part: I never said it had anything to do with who can sue whom; and under Chevron, as already shown, government agencies did not in any way, shape or form have carte blanche to do whatever they please. Once again, this shows a fundamental lack of understanding of what Chevron said:
The above-cited suit could have, and in fact was, brought under Chevron, and could have been won under Chevron (by my reading). What tossing Chevron does, as I mentioned in my initial comment, is to give the plaintiffs the opportunity not just to have a specific regulatory interpretation thrown out, but rather the entire regulation itself. Which, again, is the entire point.
That’s not even remotely true.
They could consider both sides before, on matters of interpretation rather than policy.
So?
If the regulation is contrary to Congressional authorization, shouldn't it be tossed? Understand that regulations are agency interpretations of the law.
In the cited suit, the DOL's rule made compensation the determining factor for whether an employee is exempt or non-exempt, and that's in conflict with what Congress enacted in the law. If compensation should be the determining factor, instead of the nature of the work itself, then Congress can address it.
All the court did was say that the DOL must follow the law as written, which is the court's proper role. The court didn't create its own regulation; that would be judicial activism.
Matthew
Touchdown! Greaser!
My point was, like the herring fishing companies in Loper Bright, the agency decided what the law is, “herring boats must bear the cost of the inspectors”, even though the law doesn’t say that.
Chevron would have tossed that challenge because the agency would have had the authority to do just that, the fleet wouldn’t have had a say.
Now the judicial system gets to do its job, hear both sides of the argument and interpret what the law says. Or, in the Loper Bright case, what it doesn’t say.
And for the third time, this has nothing to do with Chevron, nor the point in overturning it.
And again, that isn’t true. This is what Chevron said:
The point of overturning Chevron isn’t to reverse regulations that are “manifestly contrary to the statute” - that could be done under Chevron. The case cited above was brought under Chevron and could have been won under Chevron. The point of overturning Chevron is to reverse all regulations and to end agencies’ authority to produce any more.