Can you believe this is a VIOLATED PILOT?

Everskyward said:
Is there a real example where you can prove that "it happens"? We've already had two (yours and mine) where it "didn't happen".
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The only cases of which I know where a pilot initially aboard only as a passenger and not giving instruction as a CFI was determined ex-post-facto to be the PIC and therefore responsible for an FAR violation involved that pilot taking physical control of the aircraft either before or after the initial violation occurred.

Of course, if the FAA doesn't find out that the other person in the plane was an instructor (or even a pilot), they're not going to act against that other pilot -- s/he is a tree falling in an empty forest. However, if the pilot flying starts pointing the finger, or the other pilot does something to indicate s/he was "the pilot" (as when Mr. Moeslein called ATC on the phone in response to their request), the FAA will take notice and investigate further to determine whether the other pilot was really acting as PIC. That's why, when I get in a plane with someone else other than a trainee, I ask them whether they'd like me to be an instructor, a co-pilot, or a passenger, and thereafter act accordingly. While I still might intervene if I thought my life was in danger or something like that and there was no alternative, I fully understand and accept that such an act would render me completely responsible for anything that happens after that.
 
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Ron Levy said:
The only cases of which I know where a pilot initially aboard only as a passenger and not giving instruction as a CFI was determined ex-post-facto to be the PIC and therefore responsible for an FAR violation involved that pilot taking physical control of the aircraft either before or after the initial violation occurred.
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And that would be pretty difficult from the back seat.

Ron Levy said:
Of course, if the FAA doesn't find out that the other person in the plane was an instructor (or even a pilot), they're not going to act against that other pilot -- s/he is a tree falling in an empty forest. However, if the pilot flying starts pointing the finger, or the other pilot does something to indicate s/he was "the pilot" (as when Mr. Moeslein called ATC on the phone in response to their request), the FAA will take notice and investigate further to determine whether the other pilot was really acting as PIC. That's why, when I get in a plane with someone else other than a trainee, I ask them whether they'd like me to be an instructor, a co-pilot, or a passenger, and thereafter act accordingly. While I still might intervene if I thought my life was in danger or something like that and there was no alternative, I fully understand and accept that such an act would render me completely responsible for anything that happens after that.
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All that seems reasonable. I think that sometimes people worry about events which have only a small probability of happening and they don't think as much about events which are more likely to occur. In my case I stand a much bigger risk of getting in trouble myself than in the few instances I might ride in someone's airplane as a passenger.
 
Everskyward said:
And that would be pretty difficult from the back seat.
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OTOH, I see no "back seat" exception to the Hamle doctrine. Lacking any case law on point, I'd be concerned if I were to give training from the back seat of anything but a tandem airplane (in which case I would have controls), but I do not foresee me doing that.
 
Obi Heed Kenobi said:
I wouldn't go so far as to say it's one-sided. Rather, and this is a very general statement, there is a presumption of validity in favor of the trial court's (in this case, the ALJ's) factual findings. It's the trial judge that sees the witnesses - hears the tone of their voices, observes the nervous fidgeting, and all of the other little things that are so important to credibility. On appeal, all that exists are the physical exhibits (i.e., ATC tapes, charts, etc.) and a written transcript. Trust me, you can't tell much from reading a transcript.

What that means is that factual findings are presumed on appeal to be correct, absent a complete lack of evidence in the record to support those findings. For instance, in a traffic case, say that the judge finds I was doing 70 miles an hour, even though the police officer specifically said I was doing 60 and there's no other evidence to indicate I was doing anything but 60 - in that case, that finding gets reversed, because there was no evidence to support the judge's finding. But, say that the cop said I was doing 70, but I said I was doing 60, and the judge finds I was doing 70 - that finding won't be reversed, because there's evidence in the record to support a finding that I was doing 60, and it's for the factfinder (the judge) to determine the credibility of the evidence presented.

So, that's how facts work on appeal.

Now, add in that appellate review of an agency's (be it the FAA, the NLRB, the FDA, whoever) is very deferential to the agency as a matter of law. Most appeals of agency enforcement actions are taken under the "Administrative Procedure Act", which provides that an agency is given the discretion of interpreting its own rules, and that absent a big mistake, the agency's own interpretation stands.

Them's the rules. What it comes down to is that, when dealing with adjudicatory matters, there has to be finality somewhere - in the interests of both society and the accused. What that means is, in the most general statement possible, a verdict or judgment is presumed to be correct absent a reason indicating it is incorrect.

In the case we're talking about, through 3 levels of review (the ALJ, the agency appeal, and the appeal to the D.C. Circuit), the accused was unable to show: 1) that the FAA was unable to prove its case (before the ALJ); and 2) that the ALJ made any mistakes of fact or law (on appeal).

And that's just how it works.
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Thanks David. I thought I had it close, and glad to have it the rest of the way.
 
From the category of "LESSONS LEARNED", I had a friend of mine have the same experience --- and he had no "problems" . . . Yes, they made an inquiry and all that sort of thing -- but he simply handled it himself, was humble and honest, and after things went their course and time, the matter was dismissed as a simple error with no harm done.

Not to say that the FAA has a reputation for being reasonable, but sometimes if you just explain yourself, things work out better. In retrospect, I wish that I would have done that because it was perfectly explainable! But my career was on the line and every "expert" told me to seek counsel. Now - the matter of finding the right attorney and determining your own fate is another issue . . . long discussed in here . . .



wabower said:
Local Citation 650 pilot was violated a couple years ago going into Manassas or Leesburg, can't remember which. On the descent with field in sight, Approach cleared him for the visual, instructed him to switch to local freq (don't remember if it was tower or unicom). He complied and also (out of habit) also switched squawk to 1200. Since he wasn't yet clear of the controlled airpspace by a few hundred feet, they busted him for changing squawks.

By my reckoning this ranks pretty high on the ******** meter, but they hold the cards.
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Everskyward said:
How is the FAA going to know that the person in the back seat is a CFI unless the pilot decides to tell them? They don't ask you about your passengers.
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Oh, when they interview all the survivors after the accident/incident, it'll come out.
 
You missed the point, so I'll state it. It has nothing to do with being immune from violation and penalty because of flying politicians around. The irony is that this matter has been going on for 5 years but, in the interim, the "bad guy" is allowed to fly [at all] and even these types of people.



Clark1961 said:
What??? You've flown politicians around so you think you can do no wrong???
That dog just won't hunt, better send it to another home.
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Everskyward said:
But we're not talking about accidents here.
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Actually, my question (about a CFI passenger being held accountable) was intended to be completely open-ended. Ron confirmed my impression that the FAA only goes after airmen who make mistakes while exercising their privileges (as pilots or instructors), not those who happened to be on the airplane at the time of the event with no "airman role".
 
TMetzinger said:
Actually, my question (about a CFI passenger being held accountable) was intended to be completely open-ended. Ron confirmed my impression that the FAA only goes after airmen who make mistakes while exercising their privileges (as pilots or instructors), not those who happened to be on the airplane at the time of the event with no "airman role".
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And I was just referring to whether or not they talk to the passengers, or even know who the passengers are. They probably would in an accident unless it's pretty minor but not in a potential airspace violation.
 
Here's an interesting story from the day the Cheney flight occurred. We were scheduled to depart Rifle CO for Easton MD with Cheney and his wife and some other lower-level dignitaries. We had done a standard briefing and got no special information about any NOTAMS or TFRs pertaining to Cheney being around. Then, we got word from the FBO that they had been told from some pilots trying to fly in that there was a "restriction" (not sure it was a NOTAM or TFR) that prohibited them from going into Rifle about the time we were leaving.

Since I was PIC of that flight (real sensitive to that now - and, of course - easier to define in this crew situation) - I put everything else on hold and got on the phone with FSS. They knew nothing about it but were a little confused as to where to look; they referred me to Denver Center. Again, they really didn't know where to look but told me that they didn't know anything about it. So then I called Washington Center and Potomac Approach [for our arrival into Easton MD] just to make sure nothing was brewing over there. They were even more clueless as to where to look and they told me there system wasn;t operating properly so they couldn't even begin to look for it but that they hadn't heard anything about it. So- back to FSS, I got another FULL BRIEFING just to make sure! Taking off out of Rifle and heading into Easton ---- I can tell you the pucker factor was pretty high but it made me realize that it is no wonder things get screwed up and people get violated.



TangoWhiskey said:
This is intended as humor:

It's a good thing you didn't bust that airspace with Cheney on board, or you might have been shot in the face instead of dealing with a 90-day suspension.

My actual thoughts:

You screwed up. Deal with it, take the suspension, go fly LSA's or something for 90 days --do something FUN with aviation. But stop griping about it.
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Actually, just to clarify, the airplane was never squawking 1200 inside the ADIZ. It was always squawking the assigned code. For the outbound flight, the question remains why the squawk was not being received upon departing MTN despite the reply light indicating interrogation; upon recycling, the transponder was received. The inbound flight is a bit more tricky since the flight plan was dropped and refiled in the air (a very busy Saturday in July). Contact was made with ATC and the code was issued and squawked. The appropriate frequency was monitored all the way to a left downwind for MTN 15 (above the Class D but below the Class B; at that time, when I requested a frequency change to get into MTN, there was a big question as to who I was and where I was! Unfortunately, none of this is known due to the way the legal case was handled . . . back to "lesson learned".

That raises another question - but acknowledged that it is not the FAA's position to "think", nonetheless, "How can a pilot who is smart enough to thread the needle of Class B, Class D, and R-4001B non-inadvertently bust the ADIZ on not one but two occasions?

Truly --- all the details of this, and how it went awry, would make for an interesting story. It will be outlined in the book I'm trying to write, but that may be the extent of it.

Dave



Ron Levy said:
If you read the case, you'll see that someone did something wrong, since the airplane was squawking 1200 inside the ADIZ -- the only questions are who did it, and whether or not the instructor was responsible. The FAA's position, upheld by the NTSB, with review denied by the USCA, is that it doesn't matter who did it because the instructor in this case was consodered to be the PIC, and thus responsible to make sure that the ADIZ procedures were complied with, which clearly they were not. You (and David) may not like that position, but that's the position the FAA and NTSB have held for more than 30 years since the Hamle case* when an instructor is giving instruction. Since it was admitted that this was an instructional flight, the only remaining defense would be that the trainee did something that the instructor couldn't prevent and couldn't stop (see Administrator v. Strobel, where the trainee chopped the throttle and hit the brakes at a critical moment on a botched landing), and I don't think you can make that argument in this situation. If you can't handle that, don't give flight instruction.

*"Our precedent makes clear that, '[r]egardless of who is manipulating the controls of the aircraft during an instructional flight, or what degree of proficiency the student has attained, the flight instructor is always deemed to be the pilot-incommand.' Administrator v. Hamre, 3 NTSB 28, 31 (1977). This principle was reaffirmed in Administrator v. Walkup, 6 NTSB 36 (1988)."
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BUT --- if you follow all procedures, NOTAMS, FARS, etc. (and are especially familiar with the airspace, and Ron, I don't think we'd disagree on my familiarity with the airspace, and you have every reason to believe you're doing everything right --- well, that's the tough pill to swallow.




Ron Levy said:
Guess you'd better choose wisely when deciding whether or not to be part of such an operation.
That was covered in the Strobel case, citing the Hamre case (Administrator v. Hamre, 3 NTSB 28, 31 (1977)).
If the student reaches for the IDENT and hits the VFR button by mistake but you correct it immediately, you can probably cite that one and skate. If you take off from an airport inside the SFRA with 1200 in the box because you didn't check it before taking the runway, and don't realize it until Potomac calls it to your attention, you're probably toast. And if you allow the student to enter the SFRA without calling Potomac at all, you are almost certainly going to get something like David got.
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Once again, a damned shame that the case wasn't presented properly and the facts in defense of the charge(s) are not known . . . so, for the record, I will respond:

1. "... N27GS departed MTN without transmitting its assigned discrete transponder code..."

That is correct as a stand-alone factual statement. Note that the aircraft was also not observed to be squawking 1200. In essence, perhaps something gone wrong with the sending or receiving equipment?

2. "the pilot" acknowledged his failure to squawk the required discrete beacon code, but said "now he was."

This, as a stand alone factual statement, is also true. What is more true is that "the pilot" speaking on the radio at the time was the "student" who looked over to the transponder after I had checked, verified, and recycled it and saw that all appeared to be working properly. His verbatim answer could lead one to believe that it was not set correctly but this is not the case (where is the transponder typically located on a Piper Arrow?)

3. "... N27GS departed MTN, situated within the geographical boundaries of the ADIZ, thereby entering the ADIZ without transmitting its assigned discrete beacon code."

Once again, factually correct, however, see (1) and (2) above and every effort, indication, and belief was that the transponder was functioning properly. Further, even if the transponder was not functioning properly, the track of the flight complied with NOTAM 4/5555 requiring an immediate exit of the ADIZ in the event of a transponder failure.

4. "... [the aircraft] re-entered without first establishing and maintaining two-way radio communication with PCT or squawking an assigned, discrete transponder code."

This is not true, but every indication that the FAA presented would make it true. The fact is that a flight plan was filed and was dropped when it was to be activated. So, it was refiled in the air. Contact was re-established with ATC and a squawk code was issued and the appropriate frequency was monitored. The flight then continued to MTN. When I contacted ATC to change frequency to MTN tower, they didn't know whe we were or where we were! Had the ATC tapes been available . . . all of this would have been known! Further, does the instructor pilot who "threads the needle below Class B, above Class D, and to the side of a restricted area but an ADIZ on not one but two occasions the same day? Admittedly, not for the FAA to conclude -- but these are the surrounding facts that the record does not reveal. The FAA had the facts they needed to make their case; defense counsel elected not to get any more evidence and, instead, charge off of the "Who was PIC" issue ---- I/we now see how very wrong that was!
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Ron Levy said:
Unless you're suggesting that three FAA witnesses all lied and produced falsified radar data and plots, then I feel confident in my statements.
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So the truth be known . . . the friend and "student pilot"

1. Was simply paying the bill for the aircraft because - not knowing what a minefield I was going to be walking on - I told him to do that while I made the telephone call to see what was going on and how we could resolve it;

2. In his own deposition, he said that he took full responsibility for the flight, had made all preparation, was the "pilot flying" at the time, and accepted full responsibility for the flight (regardless of the FAA's position of who is ultimately PIC);

3. PAID all of my legal expenses ($5,000+);

4. Now - during the period of suspension - has sent to me a sizable sum of money to help me through paying the bills that go on.

He is a good man and a good friend.


I guess the really sad thing is to look back at all of this and look at the time and energy (and ultimately money) that was expended for our government to pursue this and for it to be defended.












Ron Levy said:
Unless you're suggesting that three FAA witnesses all lied and produced falsified radar data and plots, then I feel confident in my statements.
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dmccormack said:
When money's at stake, friendships are quickly forgotten...

"I expected him to say something, after all, he is a CFI...."
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David Moeslein said:
From the category of "LESSONS LEARNED", I had a friend of mine have the same experience --- and he had no "problems" . . . Yes, they made an inquiry and all that sort of thing -- but he simply handled it himself, was humble and honest, and after things went their course and time, the matter was dismissed as a simple error with no harm done.

Not to say that the FAA has a reputation for being reasonable, but sometimes if you just explain yourself, things work out better. In retrospect, I wish that I would have done that because it was perfectly explainable! But my career was on the line and every "expert" told me to seek counsel. Now - the matter of finding the right attorney and determining your own fate is another issue . . . long discussed in here . . .
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You know, the old story about when a controller advises you to do something dumb...you're the Pilot In Command. When a lawyer tells you to do something dumb, you're in charge...

It's actually a very apt analogy. Lawyers rarely share the consequences of their bad advice, like the saying "What's the same between an Air Traffic Controller and a Pilot? If the pilot screws up, the pilot dies. If the controller screws up, the pilot dies."

Seeking counsel is never a bad thing. Keeping in mind that lawyers are fallible and you need to take their counsel with a grain of salt and your own judgment is a great lesson-learned.
 
David Moeslein said:
You missed the point, so I'll state it. It has nothing to do with being immune from violation and penalty because of flying politicians around. The irony is that this matter has been going on for 5 years but, in the interim, the "bad guy" is allowed to fly [at all] and even these types of people.
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And now you mistake due process for irony.

I think we can agree that someone is missing the point around here...
 
I'm thinking just "ignore person" more than "ignore thread."
 
wabower said:
Can Jesse be bribed to change the order of issues?
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I would suspect so, but there's already a feature to ignore individuals. Just ask Felix.
 
jesse said:
..and Felix won't even know Ted told you to ask! :)
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That's the best part! :D

He's got a really good "ignore person" feature. Extremely rude, but it seems to work for him.
 
gprellwitz said:
Well, unless someone not on his ignore list quotes him!:nonod:
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Now that makes me wonder, do quotes from ignored people get ignored? Hmm... the plot thickens.
 
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I don't use Firefox. I have a couple customers that designed their web applications to use only IE, and rather than switch back and forth between browsers all the time, I just stick with IE.
 
EdFred said:
I don't use Firefox. I have a couple customers that designed their web applications to use only IE, and rather than switch back and forth between browsers all the time, I just stick with IE.
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THAT, I totally understand. (But, I still switch back and forth as needed - which is even more fun at the office where I'm on a Mac. :rolleyes:)
 
EdFred said:
No, they don't, and the FAA is never wrong. Just ask......
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...the FAA. And more than that, the US Court of Appeals says the FAA is, by Act of Congress, never wrong (well, almost never -- see Administrator v. Merrell and NTSB, 190 F. 3rd 571, 577 (D.C. Cir, 1999). All I say is if you want to pick a fight, pick one you can win, and a legal fight with the FAA over their rules ain't one of them.
 
EdFred said:
I don't use Firefox. I have a couple customers that designed their web applications to use only IE, and rather than switch back and forth between browsers all the time, I just stick with IE.
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No need to switch back and forth. Just install "IE Tab" in FireFox and tell it which sites must run under IE. It will use the IE engine within a FireFox tab.
 
Please be advised that I haven't mistaken "due process for irony". In this case, in fact, they are clearly separate.

So, maybe it is best to say: "Isn't it ironic that while due process what being followed - and occurring - the same pilot who violated federal security airspace designed to protect all of us from terrorist acts was allowed to continue to fly (nice of them) and . . . five years later . . . surrendered his certificate for 90 days".

I think that many of the posters here are not career pilots so that, for them, a 90-day suspension would merely be an opportunity to save some money not flying! I am clearly aware of the system and all that went on but I still can't help but scratch my . . . [head] . . . and marvel in what our government spends its time and OUR money pursuing. 75 days from now, when all is said and done and my certificate is returned (and they've told me that they will return it in sufficient time so that I can fly on the 91st day --- little do they realize that will no longer be an easy option) what will REALLY have been accomplished? Maybe you feel safer knowing that I am not in the air now, but for five years I was flying along in the same airspace with you!


Clark1961 said:
And now you mistake due process for irony.

I think we can agree that someone is missing the point around here...
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You should have built up vacation time over the past 5 years, and then just take a 3 month vacation flying in non-FAA airspace like the Caribbean!
 
EdFred said:
You should have built up vacation time over the past 5 years, and then just take a 3 month vacation flying in non-FAA airspace like the Caribbean!
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Nice thought, but you can't fly anywhere if your certificate is suspended, unless you have another certificate from another country not based on your US ticket.
 
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