Your thoughts - Surrender my certificate for 90 days?

D

David Moeslein

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DAVID
... or take it to the Supreme Court?

This boondoggle with the FAA:

Administrator v. Moeslein
http://www.ntsb.gov/alj/O_n_O/docs/AVIATION/5354.PDF

It has been 5+ years!!! It has been ruled on by the FAA, supported by the NTSB, and refused to be reviewed by the Court of Special Appeals. The only remaining step is the Supreme Court based on a similar case where the ruling was different than mine --- a private pilot was receiving dual and busted the ADIZ but the instructor was not held responsible!
See Administrator v. Blum
http://www.ntsb.gov/alj/O_n_O/docs/AVIATION/5371.PDF

So, you go to the Supreme Court with a Writ of Certiorari asking them to look at both cases and make a determination. The Supreme Court gets 7,000 requests a year and looks at 300! So - I wonder why they'd be inclined to look at mine? Also, even though the attorney has agreed to represent me at no charge except out of pocket costs, I wonder what it costs to proceed with the Supreme Court (given that it cost $2,500 to file with the Court of Special Appeals). Further, I looked at some history and the Supreme Court has stood behind the FAA/NTSB pretty historically --- the most visible case being the Bob Hoover revocation. Again, based on this I am not optimistic. Of course, this would postpone everything and keep my certificate in my pocket but I'm already 1/2-screwed because of simply being "under investigation" and that keeping me out of 135 flying with the ARG/US and WEYVERN rating stuff. Further, I time-out on 6-month training on July 31 and can't justify spending $15,000+ to do that "just because" since the bulk of my contract pilot revenue was 135 flying.

At this point, I am inclined to not take the 3% chance that the Supreme Court will even review my case and then the big chance that they will reverse the decision ---- it just seems soooo unlikely. It seems it may be time to suck it up, surrender the certificate, take the violation with the 90-day suspension, and then it is all behind me (even though 90 days seems like an eternity, it actually passes rather quickly) --- no more waiting in suspense ---- no more surprises. Things in aviation are about as flat as they can get -- maybe now is a good time to take the hit.

I would certainly like to see this whole thing backfire on the FAA/NTSB ---- but I just don't think that's going to happen. Do you? What do you think and what is your advice?

Thanks . . .

David
 
I'd like to see you take down the FAA/NTSB and that bastard CFI that screwed you, personally.

But you gotta do what you gotta do.
 
“If a violation was committed then, yes, I committed it ... I was flying the plane and I was in control of the airplane."

That is all that should matter to the FAA. F'ing scumbags.

BTW, I think you have a decent case, if taken to the Supreme Court. Bob Hoover did not because he was in the wrong. You are clearly in the right, and maybe it will take a court that isn't biased by their buddies in a partner organization to make that decision.

It seems to me that the Supreme Court would be a good option, if they take your case.

Edit: Either way - make sure to thank an airline pilot for the FAA's necessary presence.
 
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dmccormack said:
Why the perjorative?

The student made a statement that he was PIC and would accept whatever sanction.
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Because the student made a dumb mistake that caused Moeslein to lost his certificate and fall to the ire of the gestap....errr...FAA/NTSB.

The ADIZ is big. It can't be that hard to avoid.

edit: Oh, and the "student" was a Private Pilot.
 
SkyHog said:
Because the student made a dumb mistake that caused Moeslein to lost his certificate and fall to the ire of the gestap....errr...FAA/NTSB.
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If you're going to fling perjoratives, fling them appropriately -- in this case, at the FAA for being inconsistent in the application of the PIC rule.

The CFI and the student (anyone receiving instruction is a "student") made a dumb mistake, which I'll wager every pilot with more than 10 hours has made.

(If you have never taken off with Transponder on OFF or SBY you haven't flown enough)

The fact that it happened in the ADIZ literally made it a federal case.
 
So, just so I understand, you were instructing on a flight where the ADIZ was busted not once, but twice in one day. You made the call when you got the, "I've got a number for you to call" message from the controller and you said that you were the PIC.

Why didn't the student make the call?

Where can we see the ASRS form you submitted?


Trapper John
 
dmccormack said:
(If you have never taken off with Transponder on OFF or SBY you haven't flown enough)
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BTDT, but I think it's hard to excuse in this case where they know they are taking off from within the ADIZ. That, to me, is a little different from taking off from dogpatch and forgetting to turn on 1200...

The fact that it happened in the ADIZ literally made it a federal case.
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Doing it twice in one day probably didn't help, either.


Trapper John
 
SkyHog said:
I'd like to see you take down the FAA/NTSB and that bastard CFI that screwed you, personally.

But you gotta do what you gotta do.
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I think you got a bit confused Nick. The OP based upon the case was the CFI and the gov't is holding him responsible for the ADIZ bust. He is citing a case where the Gov't did not hold the CFI responsible.
 
Trapper John said:
BTDT, but I think it's hard to excuse in this case where they know they are taking off from within the ADIZ. That, to me, is a little different from taking off from dogpatch and forgetting to turn on 1200...

Doing it twice in one day probably didn't help, either.

Trapper John
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Agreed -- but this case hinges on one important -- though not clearly expressed -- point of law: Who is PIC?

(In my opinion, CFIs must assume that he/she is anytime he/she is on board an airplane for which there is evidence of "superior knowledge and skill.")
 
Trapper John said:
So, just so I understand, you were instructing on a flight where the ADIZ was busted not once, but twice in one day. You made the call when you got the, "I've got a number for you to call" message from the controller and you said that you were the PIC.

Why didn't the student make the call?

Where can we see the ASRS form you submitted?


Trapper John
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The wording of the ASRS report didn't matter and it appears they didn't even consider it as the gov't said it was an intentional bust and ASRS waivers don't apply to such actions.
 
AdamZ said:
The wording of the ASRS report didn't matter and it appears they didn't even consider it as the gov't said it was an intentional bust and ASRS waivers don't apply to such actions.
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I saw that, but I was just curious to see if the CFI claimed to be PIC on the ASRS form. Consistency of story, I guess...


Trapper John
 
AdamZ said:
The wording of the ASRS report didn't matter and it appears they didn't even consider it as the gov't said it was an intentional bust and ASRS waivers don't apply to such actions.
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I wonder how the Govt came to that conclusion? What evidence was there for intent?
 
dmccormack said:
Agreed -- but this case hinges on one important -- though not clearly expressed -- point of law: Who is PIC?

(In my opinion, CFIs must assume that he/she is anytime he/she is on board an airplane for which there is evidence of "superior knowledge and skill.")
Click to expand...

It was an overtly instructional flight. It's hard to see how the CFI can claim he wasn't PIC if that was the case.


Trapper John
 
Trapper John said:
It was an overtly instructional flight. It's hard to see how the CFI can claim he wasn't PIC if that was the case.


Trapper John
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The OP CFI is claiming that Instructional flight does not automatically confer PIC status based on the rulling in Admin. v Blum.

(I'm not agreeing with this premise, as I think Blum is a weaker case, and that the presumption "active CFI is PIC" is a good one)
 
OK, not legal advice, but I'd say your odds of getting Cert granted are somewhere between the snowball in hell and never.

Decide your subsequent course accordingly.
 
dmccormack said:
The OP CFI is claiming that Instructional flight does not automatically confer PIC status based on the rulling in Admin. v Blum.

(I'm not agreeing with this premise, as I think Blum is a weaker case, and that the presumption "active CFI is PIC" is a good one)
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Reading Blum, it seems that they completely dodged the PIC issue. They did not decide who was PIC, as they ruled that the issue was moot. It's really not of any precedent value in terms of determining PIC.
 
FWIW, the FAA examiner I met with last Thursday said in no uncertain terms that if any airspace was busted while I was giving instruction (once I passed my CFI ride) that I should expect to receive any penalties that go along with it. Even when I'm flying with friends who are better pilots than I am, I pay attention to the radios and such in case they miss something (I know I do from time to time). As has been explained to me, a CFI is expected to check to make sure that students aren't making those mistakes.

The whole ADIZ thing is ridiculous, and we all know it. In reading the case, it seems to me the standard thing about the government going overboard. Anywhere else, what happened wouldn't have been an issue. You would have gotten a warning and that would have been it. In reading through the report, it sounds to me like you're pretty much out of luck. You can either accept the penalty and surrender your cert for 90 days, or quite likely expect more action for failure to surrender it. I'd say the Supreme Court will almost certainly not bother looking at it. I'd suck it up and surrender the cert, and put it all behind me.
 
David Moeslein said:
It has been 5+ years!!!
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David Moeslein said:
Of course, this would postpone everything and keep my certificate in my pocket but I'm already 1/2-screwed because of simply being "under investigation" and that keeping me out of 135 flying with the ARG/US and WEYVERN rating stuff. Further, I time-out on 6-month training on July 31 and can't justify spending $15,000+ to do that "just because" since the bulk of my contract pilot revenue was 135 flying.
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According to the Wyvern site they only look at the last five years anyway. I would think that means five years from the day it happened not the day it is finally resolved.

David Moeslein said:
At this point, I am inclined to not take the 3% chance that the Supreme Court will even review my case and then the big chance that they will reverse the decision ---- it just seems soooo unlikely. It seems it may be time to suck it up, surrender the certificate, take the violation with the 90-day suspension, and then it is all behind me (even though 90 days seems like an eternity, it actually passes rather quickly) --- no more waiting in suspense ---- no more surprises. Things in aviation are about as flat as they can get -- maybe now is a good time to take the hit.
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I would be inclined to put it behind me but that is just me. 90 days is really nothing in the grand scheme of things and you are certainly not the only professional pilot with a violation in your history. If you can explain it in an interview without sounding like you were the victim (even if you feel that you were) you will probably be OK.
 
AdamZ said:
The wording of the ASRS report didn't matter and it appears they didn't even consider it as the gov't said it was an intentional bust and ASRS waivers don't apply to such actions.
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The NTSB said that there are 4 criteria for an ASRS report and the OP only defended one (intentional), so he must be deemed guilty of violating the other 3.

Moreover, in asserting an affirmative defense, the respondent must fulfill his or her burden of proving the factual basis for the affirmative defense, as well as the legal justification.21 Therefore, based on this standard, respondent must fulfill his burden of establishing that he has met all criteria of the ASRP, and is therefore eligible for a waiver of sanction. Here, respondent has not met this burden; respondent did not present evidence to prove that he fulfilled all four criteria,22 and instead argues only that his violation was inadvertent.
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BTW, I think you screwed up by not mounting a strong defense in the beginning. You should not rely on the confusion caused by a father and son having the same name. Also, ATP trumps IFR rating. As an instructor, you should have made sure the transponder was squawking. Take your lumps.
 
Sometimes it's best to just lie - the authorities do it quite often in order to get a conviction.

"My medical was left on my desk at work, I could not have legally been PIC."
"Damn circuit breaker kept popping on the transponder."
:rolleyes:

I would also go find a part time job for 90 days. Reading through the appeal decision there is no way you are going to win this. Although reading it does throw water on a few of the arguments of a few people around here in regards to who is PIC, and who the FAA says is PIC - which all that really matters.

All that said, you seriously were in a plane with someone who busted the ADIZ not once, but twice, and did nothing to stop it?
 
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You should fall to your knees and cry praises and thanks to your god in heaven for only having to do 90 days. ~Seriously! Get it done and over behind you closing one door always opens many more.
 
David Moeslein said:
What do you think and what is your advice?
Click to expand...

Correct me if I'm wrong....

You = No transponder code outbound, until ATC asked. No transponder code AND no radio call inbound. 2 violations - same flight.

Blum = No transponder code inbound, until ATC asked. Entered Class B during the confusion.

One difference is the 2 incidents of ADIZ violations during the same flight vs. 1 incident. But I think the big difference is the absense of a radio call on the return flight inbound.

You have 0 chance of the SCOTUS reviewing. Take your lumps and move on.
 
David Moeslein said:
... or take it to the Supreme Court?

This boondoggle with the FAA:

Administrator v. Moeslein
http://www.ntsb.gov/alj/O_n_O/docs/AVIATION/5354.PDF

It has been 5+ years!!! It has been ruled on by the FAA, supported by the NTSB, and refused to be reviewed by the Court of Special Appeals. The only remaining step is the Supreme Court based on a similar case where the ruling was different than mine --- a private pilot was receiving dual and busted the ADIZ but the instructor was not held responsible!
See Administrator v. Blum
http://www.ntsb.gov/alj/O_n_O/docs/AVIATION/5371.PDF
Click to expand...

Blum doesn't actually hold at the instructor was not PIC. They simply said that PIC didn't matter. You bust the ADIZ if you are the PIC or you operate the plane in the ADIZ in defiance of the NOTAM. Deciding to go after the student and/or the instructor is actually a matter of "prosecutorial discretion" on the part of the FAA...

Let me put it this way, if you and 3 friends hold up a liquor store, and they catch you and one other guy, the fact that they didn't prosecute the other two is not a defense for you.

Blum said that they can go after the student. It did not hold that they cannot go after the instructor. It doesn't really help your case that much if at all.
 
Please someone correct me if I understand this wrong:

-There was an airplane
-There was a student pilot
-There was an instructor in the airplane with student pilot
-Airplane busted airspace twice

[If the above is true]
You should be responsible. You're in the airplane with the STUDENT PILOT for reasons -- one of which is to make sure the student pilot understands airspace and does not bust it.

Man up, be responsible, and take the 90 day suspension. Be thankful it wasn't worse.
[/If the above is true]
 
jesse said:
Please someone correct me if I understand this wrong:

-There was an airplane
-There was a studentprivate pilot instrument student
-There was an instructor in the airplane with studentprivate pilot
-Airplane busted airspace twice

I'm sorry man. If those are the details -- you should be responsible. You're in the airplane with the STUDENT PILOT for reasons -- one of which is to make sure the student pilot understands airspace and does not bust it.

Man up, be responsible, and take the 90 day suspension. Be thankful it wasn't worse.
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A couple of your facts are in error, and actually impact on he ability of the left-seater to act as PIC.
 
JeffDG said:
A couple of your facts are in error, and actually impact on he ability of the left-seater to act as PIC.
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Thanks for correcting me. I just read that it was logged as instruction given. If the CFI logged it as DUAL given then I still believe my statement above is fair.
 
jesse said:
Please someone correct me if I understand this wrong:

-There was an airplane
-There was a student pilot
-There was an instructor in the airplane with student pilot
-Airplane busted airspace twice

[If the above is true]
You should be responsible. You're in the airplane with the STUDENT PILOT for reasons -- one of which is to make sure the student pilot understands airspace and does not bust it.

Man up, be responsible, and take the 90 day suspension. Be thankful it wasn't worse.
[/If the above is true]
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You have one fact wrong - it wasn't a student pilot, but a private pilot in the plane with him.


edit: The reason I'm so against the FAA here is that the real PIC admitted to being the PIC, and the FAA still holds it against him.

They also are holding it as an intentional act, and I cannot think of any reason a certificated pilot of any skill level would INTENTIONALLY bust the ADIZ.
 
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I guess the only defense for a CFI is to sit in the back seat and fall asleep.
 
SkyHog said:
They also are holding it as an intentional act, and I cannot think of any reason a certificated pilot of any skill level would INTENTIONALLY bust the ADIZ.
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So our 5000 plane bust is on hold?
 
David Moeslein said:
The only remaining step is the Supreme Court based on a similar case where the ruling was different than mine --- a private pilot was receiving dual and busted the ADIZ but the instructor was not held responsible!
See Administrator v. Blum
http://www.ntsb.gov/alj/O_n_O/docs/AVIATION/5371.PDF



David
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I commiserate with you because of the position the FAA and NTSB is taking on whether violations are "inadvertant." But your understanding of Blum is less-than-satisfactory or else you are being obtuse in order to help your case. Sorry :nonod: Your case and Blum are entirely compatible with one another from a legal standpoint. One might ask why the FAA did not go after BLUM and also his istructor (perhaps they did for all I know); one might also ask why the FAA did not go after your student as well as you (maybe they did, I don't know that either) but what they make clear in BLUM is that the person manipulating the controls AS WELL AS the legal PIC are both liable for part 91 violations, and which one of them will actually be held responsible by the FAA for such is entirely at the agency's discretion.
 
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What is the "Court of Special Appeals"? Never heard of it. And if its the US Court of Appeals, I don't understand "refused to be reviewed by."
 
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