CFI is PIC ALWAYS

[SCCutler]

David, thanks for your post; it is chilling to see what can happen when you are accused, and are stuck with the procedurally-deficient administrative law system, it is especially painful to hear of it from the perspective of the accused.

Please, stick around and feel free to drop in anytime.

 

[Palmpilot]

In conclusion, back to the text of Ron's post: The instructor DID NOT allow the "trainee" (an instrument rated private pilot ASEL) to bust the ADIZ - at all, not once, not twice. The outbound flight was squawking properly (at least by every indication in the airplane) and, if not, complied with the NOTAM in effect at the time to exit the ADIZ. The inbound flight was filed with FSS and a squawk code was assigned by ATC - again, all indications in the airplane that the transponder was functioning). Radio contact with ATC was maintained throughout both flights - so, where is the problem? Herein lies the depth of the case . . .

Was that information provided to the administrative law judge? In the ALJ's decision he stated "The Respondent chose not to put on any evidence at all."

 

[David Moeslein]

One lesson that may have been learned from all of this is that an attorney may take a different approach than you would take. So - the very experienced and well respected, as well as recommended and known by AOPA and the FAA - attorney took the approach of 1) first address WHO was PIC before anything else, and; 2) it is the government's responsibility to produce evidence so say nothing. I will always wonder how matters would have progressed had I simply dealt with this myself just like it used to be. BUT - I was told by AOPA and the FAA that this was a serious matter, things had changed, and that I had better be represented by the best attorney out there. [NO - I was not a member of AOPA's Legal Services Plan --- given my experience, the last thing I expected was to be involved in an ADIZ snarl and my other flying was pretty much "corporate routine" with a big company's legal department behind me]

 

[Palmpilot]

Are you satisfied with the quality of legal representation you got?

Based on the information available here, I wouldn't be.

 

[murphey]

In other words, I should never invite friends who just happen to be CFIs? The fact that I have no intention on receiving instruction from them is irrelevant?

 

[Everskyward]

One lesson that may have been learned from all of this is that an attorney may take a different approach than you would take. So - the very experienced and well respected, as well as recommended and known by AOPA and the FAA - attorney took the approach of 1) first address WHO was PIC before anything else, and; 2) it is the government's responsibility to produce evidence so say nothing.

Now wait a minute. If you're saying there really was no ADIZ bust why wasn't that your defense? The way it was, even if you were found not to be responsible, the other guy would still be in trouble.

 

[PittsDriver]

I guess I'm wondering where the rationale comes from that says a CFI would always be PIC. Is the presumption that the CFI is the more experienced and capable airman in the cockpit? That's certainly not always the case. I've taken instruction from CFIs that were qualified by the FARs but not remotely skilled or as fresh in the bird we were flying. Conversely, I've done check outs in some flight school's rental plane in which I had way more experience than the CFI checking me out. In the case of an emergency, I made it clear in both cases that it would be my airplane to fly and to keep their hands and feet off the controls. If they weren't happy with that arrangement, I'd find another CFI.

And on an IFR flight, is the PIC not the person who's name appears on the plan regardless if the other person sitting behind the controlls is Barry Schiff or Chuck Yeager?

 

[David Moeslein]

Well . . . we never know what would have happened had we taken the alternative course of action. So, all I can say is that I took the course of action that was recommended and here is where we are. To answer the direct question, I am satisfied with the quality but disappointed and surprised at the outcome.

Are you satisfied with the quality of legal representation you got?

Based on the information available here, I wouldn't be.

 

[David Moeslein]

In other words, I should never invite friends who just happen to be CFIs? The fact that I have no intention on receiving instruction from them is irrelevant?

I'm not sure that itis your inviting them that is the issue; rather, it is whether they accept the invitation. For me - now - anybody who wants to do a $100 hamburger run, I tell them to go fly and have fun and I'll meet them afterwards for lunch!

 

[poadeleted20]

I think I should point out that while Dave (whom I've known a very long time and whom I chose to be my wife's instrument instructor) has disputes with the findings in the case against him, as a matter of law, the findings in that case are findings of fact under the law. The burden of proof is now on him to have a superior court overturn those findings. I know he is pursuing that, but until the US Court of Appeals says otherwise, as a matter of law, he busted the ADIZ twice.

 

[Palmpilot]

Well . . . we never know what would have happened had we taken the alternative course of action. So, all I can say is that I took the course of action that was recommended and here is where we are. To answer the direct question, I am satisfied with the quality but disappointed and surprised at the outcome.

What leads you to believe that the quality of representation was adequate?

Sometimes I think people have a tendency to be overawed by expert opinion, and forget who is the employer and who is the employee.

I'm having a hard time understanding what the downside would have been to presenting the evidence that no regulations were violated, IN ADDITION to the technicalities that were pursued.

 

[RotorAndWing]

I'm not sure that itis your inviting them that is the issue; rather, it is whether they accept the invitation. For me - now - anybody who wants to do a $100 hamburger run, I tell them to go fly and have fun and I'll meet them afterwards for lunch!

Absolutely. I do the same when I see someone working on their airplane, I don't get anywhere near the hangar so I can't be accused of "supervising" their maintenance.

 

[David Moeslein]

At the time, the risk was that a 90-day certificate suspension was being threatened and I could not take that chance!

 

[SCCutler]

It is always easy to question the strategic choices made in any battle, after the fact, whether the battle be fought by armies, or by attorneys.

There are times when "throwing it all against the wall" creates a presumption on the part of the fact-finder (jury or judge, as the case may be) that nothing you are proffering is credible.

Wasn't there, could not possibly comment further, but I can tell you this: when someone comes to me after a trial with which they were not as successful as they had hoped, and asks me to critique the prior counsel's work, I rarely engage in the process. There are so many different ways many cases can be tried, and the only way you can know which one is perfect is to try it every way, and see which one works best. Until we get an effective time machine, that is not happening.

One cautionary note, though: do not ever deceive yourself, when engaged in the act of administrative law litigation, into believing you are going to get a fair trial before an impartial judge- it simply isn't set up that way.

 

[RotorAndWing]

It is always easy to question the strategic choices made in any battle, after the fact, whether the battle be fought by armies, or by attorneys.

There are times when "throwing it all against the wall" creates a presumption on the part of the fact-finder (jury or judge, as the case may be) that nothing you are proffering is credible.

Wasn't there, could not possibly comment further, but I can tell you this: when someone comes to me after a trial with which they were not as successful as they had hoped, and asks me to critique the prior counsel's work, I rarely engage in the process. There are so many different ways many cases can be tried, and the only way you can know which one is perfect is to try it every way, and see which one works best. Until we get an effective time machine, that is not happening.

One cautionary note, though: do not ever deceive yourself, when engaged in the act of administrative law litigation, into believing you are going to get a fair trial before an impartial judge- it simply isn't set up that way.

Agreed. Administrative law at best is a kangaroo court. The facts have nothing to do with the outcome.

And also agree with your assessment of battles especially within the legal community. Too many amateur lawyers on this board doing Monday morning armchair quarterbacking.

 

[Everskyward]

Too many amateur lawyers on this board doing Monday morning armchair quarterbacking.

What's wrong with that? It's like analyzing an accident. Somebody's strategy didn't work so well this time so maybe it's something that you might think twice about trying next time.

 

[Palmpilot]

Too many amateur lawyers on this board doing Monday morning armchair quarterbacking.

So we non-attorneys are not allowed to question the work of the holy ones?

The subject of lessons learned was brought up, and I'm participating in that discussion. Sorry if that upsets you.

 

[Palmpilot]

What's wrong with that? It's like analyzing an accident. Somebody's strategy didn't work so well this time so maybe it's something that you might think twice about trying next time.

Exactly.

Another possibility is seeking a second opinion from another attorney.

If I were the respondent in an enforcement action in which the regulations applicable to transponder failure in an ADIZ had, in fact, been complied with, I would want to hear some very good reasons from my attorney if he/she was proposing to not present the evidence of that at the hearing.

 

[RotorAndWing]

So we non-attorneys are not allowed to question the work of the holy ones?

The subject of lessons learned was brought up, and I'm participating in that discussion. Sorry if that upsets you.

Doesn't upset me at all, I just find it foolish when people that aren't attorneys begin questioning strategies of those that are especially not knowing all the facts of the case. I think Mr. Cutler gave an excellent response a few post back.

Like you I'm "participating" in the discussion. Sorry if that upsets you.

 

[Everskyward]

I just find it foolish when people that aren't attorneys begin questioning strategies of those that are especially not knowing all the facts of the case.

Attorneys, even experienced ones, are not infallible, just the same as pilots. Some pilots are more than willing to throw other pilots under the bus at the drop of a hat, while other pilots will not admit that their fellow pilot made a mistake when the evidence is staring them in the face. I think both extremes are not useful when trying to find out what actually happened and the way to mitigate the problem the next time.

 

[RotorAndWing]

Some pilots are more than willing to throw other pilots under the bus at the drop of a hat..............

Ya got that right.

 

[SCCutler]

Whoa, Nellie!

I never cloaked anyone's work in any fog of infallibility; my point was simply that, after the fact and without the benefit of both facts and context, I can never say whether what he did was right, or wrong.

And even with the facts, and a description of the context (what was happening, who the prosecuting attorney was, the nature and inclinations of the ALJ), I'd still be pulling an opinion of of a warm and steamy place.

When something is blatantly obvious (missed a filing deadline, failed to raise an essential legal issue), it's one thing, but trial strategy (what to put on and when, how, what arguments, that sort of thing) is so fundamentally unique to each matter.

It is always germaine to evaluate what worked and what didn't, after the fact- this is how we learn. I just believe we can rarely reach a conclusive answer about whether the prior counsel- the one who was there, then, in the midst- did it wrong.

 

[David Moeslein]

Yes - Ron & I go back a number of years: Let's not forget that CFII [05/27/97] for Ron either !

Now - this law stuff is very troubling and you read through the case and I can't imagine that anyone wouldn't scratch their head and say "WTF?" (e-mail me if you need that acronym explained). But - it is what it is! The real issue at hand before the COURT is now this whole PIC issue where, in MOESLEIN the FAA/NTSB said that the instructor was PIC but, in BLUM the FAA/NTSB said that the pilot (under CFI instruction) was PIC. This will be very interesting! Our tax dollars hard at work for the past 5 years (as of July 10).

As a matter of law, they say he busted the ADIZ twice. As a matter of fact - he, nor anyone on board the airplane, did anything of the sort --- but the conclusions are what they are!

I think I should point out that while Dave (whom I've known a very long time and whom I chose to be my wife's instrument instructor) has disputes with the findings in the case against him, as a matter of law, the findings in that case are findings of fact under the law. The burden of proof is now on him to have a superior court overturn those findings. I know he is pursuing that, but until the US Court of Appeals says otherwise, as a matter of law, he busted the ADIZ twice.

 

[Everskyward]

Now - this law stuff is very troubling and you read through the case and I can't imagine that anyone wouldn't scratch their head and say "WTF?"

I might be misunderstanding something but I would think the (much) bigger issue would have been if there was an ADIZ bust or not. The "who is PIC?" question seems just like a technicality. But then I am not an attorney (even though I've stayed at a lot of Holiday Inns) and I don't know all the details of the case.

 

[David Moeslein]

The Washington ADIZ checkout case is Administrator v. Blum

http://www.ntsb.gov/alj/alj/O_n_O/docs/aviation/5371.PDF

Here, the pilot was held responsible and the CFI was not cited.

 

[David Moeslein]

You are right except that the attorney didn't approach it in this direction. So, the ADIZ thing kind of went off in it's own direction - unchallenged - and with its outcome. The PIC thing was the issue that the attorney focused on and, well, the FAA/NTSB didn't buy it one bit. BUT - now they have a real issue to deal with because, in a very similar set of circumstances, in BLUM they held the pilot responsible and did not go after the CFI. That is what the attorney is pursuing before the Court of Special Appeals.

I might be misunderstanding something but I would think the (much) bigger issue would have been if there was an ADIZ bust or not. The "who is PIC?" question seems just like a technicality. But then I am not an attorney (even though I've stayed at a lot of Holiday Inns) and I don't know all the details of the case.

 

[bbchien]

Thank you for the citations. Wow. Capricious and arbitrary.

 

[David Moeslein]

I was curious ---- since Judge Fowler was the same judge in both MOESLEIN and BLUM ---- I was certain that he was experienced but I was curious about his background. One thing for certain . . . he's OLD!

http://www.ntsb.gov/alj/fowler.htm

Graduated law school in 1952 --- let's just say he was 25 then . . . makes him 82 now? Isn't that a little old to sort out all the details? I was wondering this because I get confused when I read what he says --- almost like doublespeak. Further, it seems as though he sets up a great outline for a case and THEN concludes/decides counter to the argument that he has just set up! So then, I go back to the age thing --- could he not be getting all of this confused in his own mind? The end result is that people's lives (and in my case - livelihood) are being impacted!

If airline pilots have to retire at 60, why can judges who decide their fate practice long after that?

Thank you for the citations. Wow. Capricious and arbitrary.

 

[Palmpilot]

Doesn't upset me at all, I just find it foolish when people that aren't attorneys begin questioning strategies of those that are especially not knowing all the facts of the case.

Just curious: Does that apply when the non-attorney involved is your client/employer?

Like you I'm "participating" in the discussion.

Only one of us has called the other foolish for the mere act of expressing an opinion on a message board.

 

[Everskyward]

I was curious ---- since Judge Fowler was the same judge in both MOESLEIN and BLUM ---- I was certain that he was experienced but I was curious about his background. One thing for certain . . . he's OLD!

I think it's even more curious that the respondents' representative was the same in both cases.

On behalf of the Respondent:
JAY FRED COHEN

The PIC thing was the issue that the attorney focused on and, well, the FAA/NTSB didn't buy it one bit. BUT - now they have a real issue to deal with because, in a very similar set of circumstances, in BLUM they held the pilot responsible and did not go after the CFI.

From what is written here in Administrator v. Blum it seems that the respondent (Blum) did not try to blame his CFI in his defense.

Whether the Administrator could prove that a pilot is the PIC in a case like this is another question, but we have long held that an instructor is the PIC on an instructional flight, and that the PIC is not necessarily the pilot who operates the controls or directs the course of a flight. As respondent points out, the other pilot on this flight was a CFI who filed the flight plan, signed respondent’s logbook as CFI, and then,3 months and 6 flights following the flight at issue, signed respondent’s logbook with the notation: “SR20 transition trng [training] complete-BFR (biannual flight review).” Exh. R-2.

Whether respondent relied on his instructor is a defense that respondent did not affirmatively raise. Respondent might have relied on the pilot with the superior certificate to obtain the discrete transponder beacon code and to ensure that the aircraft was squawking that code; to comply with the conditions, authorizations, and terms of the NOTAM; to comply with the special security instructions of the ADIZ; and to receive an ATC clearance before entering Class B airspace. But he fails to make that argument. Respondent might have raised an affirmative defense of reasonable reliance. We do not normally entertain, however, arguments that are not presented to us.

It's also interesting when they talk about your case, that it doesn't seem to matter who was PIC.

At the hearing, respondent’s counsel referred to an ADIZ case he had recently defended, and which this Board has since decided. In that case, the respondent was a certified flight instructor (CFI) on an instructional flight and respondent’s counsel argued that respondent was not the PIC. Although we found that respondent was the PIC, and we discussed the issue at some length, we must point out that the PIC issue was not the determinative issue in that case because, regardless of whether the respondent was the PIC, he committed a violation by his operation of the aircraft, without regard to whether he was “in command.” For the same reason, the PIC issue is also not determinative in our decision here.

 

[write-stuff]

Got another resource for you. NAFI has a streaming video online entitled "Instructor Liability: An Analysis". This is a roundtable between the exec. director of NAFI, an insurance V.P., and an aviation attorney. It runs just under 40 minutes and is definitely worthwhile.

It's on the homepage at www.NAFILive.com.

- Russ

 

[David Moeslein]

Thanks for the resource; I just checked it out. A number of things come to mind. First, the program dealt mainly with things that go wrong when an airplane is damaged, people are hurt, etc. However, from 33:00 to 36:00 they address the issue of instructors and FAA enforcement actions. Of course, here the famous term (in my life) comes up --- that of inadvertent actions. There was alos the mention of filing a NASA report - but no mention that if the FAA finds that your action was not inadvertent, the NASA form is worthless.

Of course, plugs were made for an instructor to have insurance and participate in the AOPA Legal Plan. Talk of reviewing policies, having statements signed and - the scary thing - what happens if years down the road somebody has an accident and you (as the CFI) get sued? I've given 5,000+ hours of dual --- makes me think I need to contact everybody I've ever instructed and make them sign some 10-page lawyer drafted waiveer and hold harmless agreement!

As for me - I'm probably never setting foot in an airplane again --- after all, the FAA is going to hold me responsible as the senior pilot even if I am in the back seat!

Got another resource for you. NAFI has a streaming video online entitled "Instructor Liability: An Analysis". This is a roundtable between the exec. director of NAFI, an insurance V.P., and an aviation attorney. It runs just under 40 minutes and is definitely worthwhile.

It's on the homepage at www.NAFILive.com.

- Russ