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bultaco956(at)yahoo.com
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 Posted: Wed Apr 11, 2012 1:06 pm Post subject: Pardue/Breckenridge - Flying is a right, . . .. right? |
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Dear fellow Yak listers:
As an all too frequent lurker I can't help weighing in on the flying is a "privilege" vs. right discussion that comes up repeatedly from time to time and resurfaced again with the Pardue accident.
It boils down to this: the FAA and Administration (DOT, TSA, etc.) have long asserted that a flying and a pilot's license is a "privilege." This use of the term in this manner by the FAA is, in my opinion, legally incorrect and plainly infensible. A privilege is legally defined as a benefit or advantage enjoyed by a person beyond the common advantage of other citizens; such privileges are typically legally waivable by the owner or holder (attorney-client privilege, doctor-patient privilege, executive privilege, marital privilege, privilege against self incrimination; or more commonly, the "privileged" class). Sometimes it is used in a more commmon manner to describe a right granted by others that is revocable at the will of the grantor (e.g., the privilege to pass across the lands of another).
I'm not sure where the misuse of the term with regard to flying started but the FAA has asserted that flying is "privilege" as long as I have been a pilot, some 30 years.
There is no support for the FAA's position in the law. A pilot certificate is a government issued "license," not a "privilege."
The Supreme Court and the other U.S. Court have long and correctly recognized that a pilot's license is a protected property "right" that may not be infringed without due process of law. It is well established in the law that individuals have a property interest in government issued licenses and permits. See Illinois v. Batchelder, 463 US 1112, 1116 (1983)(driver's license); Mackey v. Montrym, 442 US 1, 10 n.7 (1979)(same); Tur v. FAA, 4 F.3d 766, 769 (9th Cir. 1993)(airman certificate); Pastrana v. United States, 746 F.2d 1447, 1450 (11th Cir. 1984). The revocation or suspension of a pilot's license, or airman certrificate, implicates a consitutionally protected property interest and that interest may not be impaired in an arbitrary manner or without notice and hearing and upon substantial evidence. The importance of the protected interest is enhanced when one's vocation or advocation is involved (think commercial pilot license).
I have had the past "privilege" of representing the United States (and the FAA) in federal courts as a U.S. Department of Justice HQ Aviation Branch attorney and continue to practice aviation law today in another institution. I have been practicing and flying for over 25 years and have argued this issue a number of times, including not too long ago in the U.S. Court of Appeals for the DC Circuit. The federal judges don't even blink before treating pilot's licenses as a protected right and affording appropriate individual constitutional protections. The FAA is usually represented in federal court by the Department of Justice. You may hear FAA attorneys spout off outside of court about flying being a "privilege," but I do not recall ever hearing Department of Justice attorneys use that language, especially before Judges in federal court.
I tell the FAA attorneys that I deal with every chance I get (now that I am out of government) that they are flat wrong to describe flying as a "privilege."
You can argue about whether the FAA enforcement process could be handled better, but when FAA enforcement cases are subject to federal court review (as every enforcement case can be if the pilot chooses to push it), the FAA is strictly held to due process standards. I recently had an ATP revocation case thrown out by the U.S. Court of Appeals (for the 9th Circuit) for failure to follow due process. Such a result is not that unusual.
Flying is a constitutionally protected right (thanks to God and our founders) and in my view we will get more respect from federal officials, the public and the FAA if we start treating it as such.
Hope this helps.
Jay Wells, JD, LLM, CFI
1983 CJ6A
[PS - this is not a soliciatation. I don't take private clients. Disclaimer: Nor is it legal advice - your situaiton may differ.]
[quote][b]
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Jetj01(at)aol.com
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| Posted: Wed Apr 11, 2012 1:15 pm Post subject: Pardue/Breckenridge - Flying is a right, . . .. right? |
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Mr Wells,
Well played!
Jj
Sent from my iPhone
On Apr 11, 2012, at 4:03 PM, jay wells <bultaco956(at)yahoo.com (bultaco956(at)yahoo.com)> wrote:
[quote] Dear fellow Yak listers:
As an all too frequent lurker I can't help weighing in on the flying is a "privilege" vs. right discussion that comes up repeatedly from time to time and resurfaced again with the Pardue accident.
It boils down to this: the FAA and Administration (DOT, TSA, etc.) have long asserted that a flying and a pilot's license is a "privilege." This use of the term in this manner by the FAA is, in my opinion, legally incorrect and plainly infensible. A privilege is legally defined as a benefit or advantage enjoyed by a person beyond the common advantage of other citizens; such privileges are typically legally waivable by the owner or holder (attorney-client privilege, doctor-patient privilege, executive privilege, marital privilege, privilege against self incrimination; or more commonly, the "privileged" class). Sometimes it is used in a more commmon manner to describe a right granted by others that is revocable at the will of the grantor (e.g., the privilege to pass across the lands of another).
I'm not sure where the misuse of the term with regard to flying started but the FAA has asserted that flying is "privilege" as long as I have been a pilot, some 30 years.
There is no support for the FAA's position in the law. A pilot certificate is a government issued "license," not a "privilege."
The Supreme Court and the other U.S. Court have long and correctly recognized that a pilot's license is a protected property "right" that may not be infringed without due process of law. It is well established in the law that individuals have a property interest in government issued licenses and permits. See Illinois v. Batchelder, 463 US 1112, 1116 (1983)(driver's license); Mackey v. Montrym, 442 US 1, 10 n.7 (1979)(same); Tur v. FAA, 4 F.3d 766, 769 (9th Cir. 1993)(airman certificate); Pastrana v. United States, 746 F.2d 1447, 1450 (11th Cir. 1984). The revocation or suspension of a pilot's license, or airman certrificate, implicates a consitutionally protected property interest and that interest may not be impaired in an arbitrary manner or without notice and hearing and upon substantial evidence. The importance of the protected interest is enhanced when one's vocation or advocation is involved (think commercial pilot license).
I have had the past "privilege" of representing the United States (and the FAA) in federal courts as a U.S. Department of Justice HQ Aviation Branch attorney and continue to practice aviation law today in another institution. I have been practicing and flying for over 25 years and have argued this issue a number of times, including not too long ago in the U.S. Court of Appeals for the DC Circuit. The federal judges don't even blink before treating pilot's licenses as a protected right and affording appropriate individual constitutional protections. The FAA is usually represented in federal court by the Department of Justice. You may hear FAA attorneys spout off outside of court about flying being a "privilege," but I do not recall ever hearing Department of Justice attorneys use that language, especially before Judges in federal court.
I tell the FAA attorneys that I deal with every chance I get (now that I am out of government) that they are flat wrong to describe flying as a "privilege."
You can argue about whether the FAA enforcement process could be handled better, but when FAA enforcement cases are subject to federal court review (as every enforcement case can be if the pilot chooses to push it), the FAA is strictly held to due process standards. I recently had an ATP revocation case thrown out by the U.S. Court of Appeals (for the 9th Circuit) for failure to follow due process. Such a result is not that unusual.
Flying is a constitutionally protected right (thanks to God and our founders) and in my view we will get more respect from federal officials, the public and the FAA if we start treating it as such.
Hope this helps.
Jay Wells, JD, LLM, CFI
1983 CJ6A
[PS - this is not a soliciatation. I don't take private clients. Disclaimer: Nor is it legal advice - your situaiton may differ.]
[b]
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brian(at)lloyd.com
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| Posted: Wed Apr 11, 2012 1:45 pm Post subject: Pardue/Breckenridge - Flying is a right, . . .. right? |
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On Wed, Apr 11, 2012 at 2:03 PM, jay wells <bultaco956(at)yahoo.com (bultaco956(at)yahoo.com)> wrote:
| Quote: | Flying is a constitutionally protected right (thanks to God and our founders) and in my view we will get more respect from federal officials, the public and the FAA if we start treating it as such.
|
Thank you Jay. Clear, succinct, and well stated.
--
Brian Lloyd, WB6RQN/J79BPL
3191 Western Dr.
Cameron Park, CA 95682
brian(at)lloyd.com (brian(at)lloyd.com)
+1.767.617.1365 (Dominica)
+1.916.877.5067 (USA)
[quote][b]
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dsavarese0812(at)bellsout
Guest
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| Posted: Wed Apr 11, 2012 2:17 pm Post subject: Pardue/Breckenridge - Flying is a right, . . .. right? |
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VERY well written and very informative Jay. Thank you for your posting.
Dennis
A. Dennis Savarese
334-285-6263
334-546-8182 (mobile)
www.yak-52.com
Skype - Yakguy1
On 4/11/2012 4:03 PM, jay wells wrote:
| Quote: | Dear fellow Yak listers:
As an all too frequent lurker I can't help weighing in on the flying
is a "privilege" vs. right discussion that comes up repeatedly from
time to time and resurfaced again with the Pardue accident.
It boils down to this: the FAA and Administration (DOT, TSA, etc.)
have long asserted that a flying and a pilot's license is a
"privilege." This use of the term in this manner by the FAA is, in my
opinion, legally incorrect and plainly infensible. A privilege is
legally defined as a benefit or advantage enjoyed by a person beyond
the common advantage of other citizens; such privileges are typically
legally waivable by the owner or holder (attorney-client privilege,
doctor-patient privilege, executive privilege, marital privilege,
privilege against self incrimination; or more commonly, the
"privileged" class). Sometimes it is used in a more commmon manner to
describe a right granted by others that is revocable at the will of
the grantor (e.g., the privilege to pass across the lands of another).
I'm not sure where the misuse of the term with regard to flying
started but the FAA has asserted that flying is "privilege" as long as
I have been a pilot, some 30 years.
There is no support for the FAA's position in the law. A pilot
certificate is a government issued "license," not a "privilege."
The Supreme Court and the other U.S. Court have long and correctly
recognized that a pilot's license is a protected property "right" that
may not be infringed without due process of law. It is well
established in the law that individuals have a property interest in
government issued licenses and permits. See Illinois v. Batchelder,
463 US 1112, 1116 (1983)(driver's license); Mackey v. Montrym, 442 US
1, 10 n.7 (1979)(same); Tur v. FAA, 4 F.3d 766, 769 (9th Cir.
1993)(airman certificate); Pastrana v. United States, 746 F.2d 1447,
1450 (11th Cir. 1984). The revocation or suspension of a pilot's
license, or airman certrificate, implicates a consitutionally
protected property interest and that interest may not be impaired in
an arbitrary manner or without notice and hearing and upon substantial
evidence. The importance of the protected interest is enhanced when
one's vocation or advocation is involved (think commercial pilot license).
I have had the past "privilege" of representing the United States (and
the FAA) in federal courts as a U.S. Department of Justice HQ Aviation
Branch attorney and continue to practice aviation law today in another
institution. I have been practicing and flying for over 25 years and
have argued this issue a number of times, including not too long ago
in the U.S. Court of Appeals for the DC Circuit. The federal judges
don't even blink before treating pilot's licenses as a protected right
and affording appropriate individual constitutional protections. The
FAA is usually represented in federal court by the Department of
Justice. You may hear FAA attorneys spout off outside of court about
flying being a "privilege," but I do not recall ever hearing
Department of Justice attorneys use that language, especially before
Judges in federal court.
I tell the FAA attorneys that I deal with every chance I get (now that
I am out of government) that they are flat wrong to describe flying as
a "privilege."
You can argue about whether the FAA enforcement process could be
handled better, but when FAA enforcement cases are subject to federal
court review (as every enforcement case can be if the pilot chooses to
push it), the FAA is strictly held to due process standards. I
recently had an ATP revocation case thrown out by the U.S. Court of
Appeals (for the 9th Circuit) for failure to follow due process. Such
a result is not that unusual.
Flying is a constitutionally protected right (thanks to God and our
founders) and in my view we will get more respect from federal
officials, the public and the FAA if we start treating it as such.
Hope this helps.
Jay Wells, JD, LLM, CFI
1983 CJ6A
[PS - this is not a soliciatation. I don't take private clients.
Disclaimer: Nor is it legal advice - your situaiton may differ.]
*
*
|
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http://www.matronics.com/Navigator?Yak-List |
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dougsappllc(at)gmail.com
Guest
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| Posted: Wed Apr 11, 2012 2:42 pm Post subject: Pardue/Breckenridge - Flying is a right, . . .. right? |
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Geeze, a interesting, informative, timely post which is not angry or inflammatory, a very unique and most welcome post indeed.
Thanks Jay, well done!
Doug Sapp
On Wed, Apr 11, 2012 at 3:14 PM, A. Dennis Savarese <dsavarese0812(at)bellsouth.net (dsavarese0812(at)bellsouth.net)> wrote:
[quote] --> Yak-List message posted by: "A. Dennis Savarese" <dsavarese0812(at)bellsouth.net (dsavarese0812(at)bellsouth.net)>
VERY well written and very informative Jay. Thank you for your posting.
Dennis
A. Dennis Savarese
[url=tel:334-285-6263]334-285-6263[/url]
[url=tel:334-546-8182]334-546-8182[/url] (mobile)
www.yak-52.com
Skype - Yakguy1
On 4/11/2012 4:03 PM, jay wells wrote:
| Quote: | Dear fellow Yak listers:
As an all too frequent lurker I can't help weighing in on the flying is a "privilege" vs. right discussion that comes up repeatedly from time to time and resurfaced again with the Pardue accident.
It boils down to this: the FAA and Administration (DOT, TSA, etc.) have long asserted that a flying and a pilot's license is a "privilege." This use of the term in this manner by the FAA is, in my opinion, legally incorrect and plainly infensible. A privilege is legally defined as a benefit or advantage enjoyed by a person beyond the common advantage of other citizens; such privileges are typically legally waivable by the owner or holder (attorney-client privilege, doctor-patient privilege, executive privilege, marital privilege, privilege against self incrimination; or more commonly, the "privileged" class). Sometimes it is used in a more commmon manner to describe a right granted by others that is revocable at the will of the grantor (e.g., the privilege to pass across the lands of another).
I'm not sure where the misuse of the term with regard to flying started but the FAA has asserted that flying is "privilege" as long as I have been a pilot, some 30 years.
There is no support for the FAA's position in the law. A pilot certificate is a government issued "license," not a "privilege."
The Supreme Court and the other U.S. Court have long and correctly recognized that a pilot's license is a protected property "right" that may not be infringed without due process of law. It is well established in the law that individuals have a property interest in government issued licenses and permits. See Illinois v. Batchelder, 463 US 1112, 1116 (1983)(driver's license); Mackey v. Montrym, 442 US 1, 10 n.7 (1979)(same); Tur v. FAA, 4 F.3d 766, 769 (9th Cir. 1993)(airman certificate); Pastrana v. United States, 746 F.2d 1447, 1450 (11th Cir. 1984). The revocation or suspension of a pilot's license, or airman certrificate, implicates a consitutionally protected property interest and that interest may not be impaired in an arbitrary manner or without notice and hearing and upon substantial evidence. The importance of the protected interest is enhanced when one's vocation or advocation is involved (think commercial pilot license).
I have had the past "privilege" of representing the United States (and the FAA) in federal courts as a U.S. Department of Justice HQ Aviation Branch attorney and continue to practice aviation law today in another institution. I have been practicing and flying for over 25 years and have argued this issue a number of times, including not too long ago in the U.S. Court of Appeals for the DC Circuit. The federal judges don't even blink before treating pilot's licenses as a protected right and affording appropriate individual constitutional protections. The FAA is usually represented in federal court by the Department of Justice. You may hear FAA attorneys spout off outside of court about flying being a "privilege," but I do not recall ever hearing Department of Justice attorneys use that language, especially before Judges in federal court.
I tell the FAA attorneys that I deal with every chance I get (now that I am out of government) that they are flat wrong to describe flying as a "privilege."
You can argue about whether the FAA enforcement process could be handled better, but when FAA enforcement cases are subject to federal court review (as every enforcement case can be if the pilot chooses to push it), the FAA is strictly held to due process standards. I recently had an ATP revocation case thrown out by the U.S. Court of Appeals (for the 9th Circuit) for failure to follow due process. Such a result is not that unusual.
Flying is a constitutionally protected right (thanks to God and our founders) and in my view we will get more respect from federal officials, the public and the FAA if we start treating it as such.
Hope this helps.
Jay Wells, JD, LLM, CFI
1983 CJ6A
[PS - this is not a soliciatation. I don't take private clients. Disclaimer: Nor is it legal advice - your situaiton may differ.]
*
*
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crobin(at)skyvantage.com
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| Posted: Wed Apr 11, 2012 3:10 pm Post subject: Pardue/Breckenridge - Flying is a right, . . .. right? |
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RE: Jay Wells..
THAT is fresh air my friends!
fly RedStar
Cory.
[quote][b]
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cjpilot710(at)aol.com
Guest
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| Posted: Wed Apr 11, 2012 3:32 pm Post subject: Pardue/Breckenridge - Flying is a right, . . .. right? |
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So my license is better than a privilege - - - its a right? Yep. Thank our Founding Fathers for that.
Jim "Pappy" Goolsby (shit 57 years as a pilot, and I still haven't figured out the regs) :-]
In a message dated 4/11/2012 7:10:50 P.M. Eastern Daylight Time, crobin(at)skyvantage.com writes:
| Quote: | RE: Jay Wells..
THAT is fresh air my friends!
fly RedStar
Cory.
|
[quote][b]
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mark.bitterlich(at)navy.m
Guest
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| Posted: Wed Apr 11, 2012 6:44 pm Post subject: Pardue/Breckenridge - Flying is a right, . . .. right? |
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Concur.
"Fly your own airplane".
Mark
________________________________
From: owner-yak-list-server(at)matronics.com on behalf of cjpilot710(at)aol.com
Sent: Wed 4/11/2012 7:29 PM
To: yak-list(at)matronics.com
Subject: Re: Pardue/Breckenridge - Flying is a right, . . .. right?
So my license is better than a privilege - - - its a right? Yep. Thank our Founding Fathers for that.
Jim "Pappy" Goolsby (shit 57 years as a pilot, and I still haven't figured out the regs) :-]
In a message dated 4/11/2012 7:10:50 P.M. Eastern Daylight Time, crobin(at)skyvantage.com writes:
RE: Jay Wells..
THAT is fresh air my friends!
fly RedStar
Cory.
="http://www.matronics.com/Navigator?Yak-List">http://www.matronics.com/Navigator?Yak-List
s.matronics.com/">http://forums.matronics.com
p://www.matronics.com/contribution">http://www.matronics.com/contribution
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billaustin(at)blomand.net
Guest
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| Posted: Fri Apr 13, 2012 6:29 am Post subject: Pardue/Breckenridge - Flying is a right, . . .. right? |
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Thanks Jay.
From: jay wells [mailto:bultaco956(at)yahoo.com]
Sent: Wednesday, April 11, 2012 4:03 PM
To: yak-list(at)matronics.com
Subject: Pardue/Breckenridge - Flying is a right, . . .. right?
Dear fellow Yak listers:
As an all too frequent lurker I can't help weighing in on the flying is a "privilege" vs. right discussion that comes up repeatedly from time to time and resurfaced again with the Pardue accident.
It boils down to this: the FAA and Administration (DOT, TSA, etc.) have long asserted that a flying and a pilot's license is a "privilege." This use of the term in this manner by the FAA is, in my opinion, legally incorrect and plainly infensible. A privilege is legally defined as a benefit or advantage enjoyed by a person beyond the common advantage of other citizens; such privileges are typically legally waivable by the owner or holder (attorney-client privilege, doctor-patient privilege, executive privilege, marital privilege, privilege against self incrimination; or more commonly, the "privileged" class). Sometimes it is used in a more commmon manner to describe a right granted by others that is revocable at the will of the grantor (e.g., the privilege to pass across the lands of another).
I'm not sure where the misuse of the term with regard to flying started but the FAA has asserted that flying is "privilege" as long as I have been a pilot, some 30 years.
There is no support for the FAA's position in the law. A pilot certificate is a government issued "license," not a "privilege."
The Supreme Court and the other U.S. Court have long and correctly recognized that a pilot's license is a protected property "right" that may not be infringed without due process of law. It is well established in the law that individuals have a property interest in government issued licenses and permits. See Illinois v. Batchelder, 463 US 1112, 1116 (1983)(driver's license); Mackey v. Montrym, 442 US 1, 10 n.7 (1979)(same); Tur v. FAA, 4 F.3d 766, 769 (9th Cir. 1993)(airman certificate); Pastrana v. United States, 746 F.2d 1447, 1450 (11th Cir. 1984). The revocation or suspension of a pilot's license, or airman certrificate, implicates a consitutionally protected property interest and that interest may not be impaired in an arbitrary manner or without notice and hearing and upon substantial evidence. The importance of the protected interest is enhanced when one's vocation or advocation is involved (think commercial pilot license).
I have had the past "privilege" of representing the United States (and the FAA) in federal courts as a U.S. Department of Justice HQ Aviation Branch attorney and continue to practice aviation law today in another institution. I have been practicing and flying for over 25 years and have argued this issue a number of times, including not too long ago in the U.S. Court of Appeals for the DC Circuit. The federal judges don't even blink before treating pilot's licenses as a protected right and affording appropriate individual constitutional protections. The FAA is usually represented in federal court by the Department of Justice. You may hear FAA attorneys spout off outside of court about flying being a "privilege," but I do not recall ever hearing Department of Justice attorneys use that language, especially before Judges in federal court.
I tell the FAA attorneys that I deal with every chance I get (now that I am out of government) that they are flat wrong to describe flying as a "privilege."
You can argue about whether the FAA enforcement process could be handled better, but when FAA enforcement cases are subject to federal court review (as every enforcement case can be if the pilot chooses to push it), the FAA is strictly held to due process standards. I recently had an ATP revocation case thrown out by the U.S. Court of Appeals (for the 9th Circuit) for failure to follow due process. Such a result is not that unusual.
Flying is a constitutionally protected right (thanks to God and our founders) and in my view we will get more respect from federal officials, the public and the FAA if we start treating it as such.
Hope this helps.
Jay Wells, JD, LLM, CFI
1983 CJ6A
[PS - this is not a soliciatation. I don't take private clients. Disclaimer: Nor is it legal advice - your situaiton may differ.]
| Quote: | | http://www.matronics.com/Navigator?Yak-List |
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No virus found in this message.
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