Academic journal article Washington Law Review

Courts as Gatekeepers: The Case for Minimal Deference to Agency Interpretations of the Common Law

Academic journal article Washington Law Review

Courts as Gatekeepers: The Case for Minimal Deference to Agency Interpretations of the Common Law

Article excerpt

INTRODUCTION

Imagine Jack and his partner want to travel from Seattle, Washington to Walla Walla, Washington for a quick, three-day weekend wine-tasting getaway. They can make the trip by car, but spending nine hours roundtrip travelling during a short weekend does not seem appealing. Jack looks at airline tickets, but spending several hundred dollars and dealing with the hassle of airport parking, check-in, and baggage collection does not sound like fun either. Jack wishes that there was an easier way; he wishes that they could just ride along with a private pilot leaving Seattle and headed to Walla Walla this weekend. After all, if he can hail a taxi to the airport using Uber, and find a place to stay in Walla Walla using AirBnB, why is Jack's desire to use the "sharing economy" to book a flight for their weekend getaway unreasonable?

The short answer is, before the D.C. Circuit's Flytenow, Inc. v. FAA1 opinion, Jack could use the "sharing economy" to reserve and share flights with private pilots. In Flytenow, the D.C. Circuit upheld a Federal Aviation Administration (FAA) determination that Flytenow, an internetbased flight-sharing service, violated FAA regulations because it permitted private pilots to advertise their itineraries to website members.2 The FAA determined, and the court agreed, that private pilots that used Flytenow were "common carriers" that did not have the proper credentialing to conduct flights with paying passengers.3 The FAA's definition of the common-law term "common carriage," and the D.C. Circuit's deference to the FAA's definition, played a vital role in the FAA's determination that Flytenow's business model was impermissible.4

Federal agencies like the FAA are given significant latitude to promulgate regulations and define ambiguous terms in order to implement and execute federal statutory regimes.5 Title 49 of the United states Code charges the administrator of the FAA with maintaining safety of air commerce within the United States.6 It provides the administrator with the power to promulgate rules, orders, and circulars to carry out the FAA's regulatory functions.7 Flying is an inherently dangerous activity, and ensuring the safety of the flying public is inherent in the wide grant of power delegated to the FAA by Congress.8 Between 1990 and 2003, general aviation (non-commercial aviation) accounted for eighty-two percent of flying accidents and eighty-three percent of aircraft fatalities in the United States.9 Between 1983 and 1996, the National Transportation Safety Board (NTSB) assigned pilot error as the cause of eighty-five percent of general aviation crashes.10 These bleak statistics for general aviation, coupled with the fact that the average general aviation pilot flies fewer than 100 hours in a year,11 could lead a reasonable observer to agree with the FAA's position that Flytenow's pilots must have more than private pilot licenses to transport paying passengers.

The D.C. Circuit based its decision in Flytenow on the reasonableness of the FAA's determination-that is, the reasonableness of its definition of the common-law term "common carriage."12 This Comment argues that the D.C. Circuit, while ultimately reaching the correct decision, missed an important opportunity to authoritatively speak to the proper level of deference that courts should extend to agency interpretations of commonlaw terms. Many scholars and judges have written about the various deference doctrines, but none clearly discuss the issue of when the common law is a part of an agency's regulatory decision-making process. This Comment is not solely about whether the FAA reasonably and correctly disallowed Flytenow's business. Instead, it uses Flytenow to analyze the decision-making process courts use when determining the correct level of deference to agency interpretations of common-law terms. This Comment argues that when agencies interpret the meaning of common-law terms (for example, when the FAA interpreted the meaning of "common carrier" in Flytenow), courts should, as a rule, only afford those interpretations a minimal level of judicial deference. …

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