A recent NTSB case discusses the standard of review utilized by the Board in analyzing appeals based upon alleged evidentiary errors. Administrator v. Nadal arose out of a runway incursion at LAX in which the airman failed to obey an ATC “hold-short” instruction and forced another aircraft to go around when he subsequently crossed runway 25L. The FAA charged the airman with violating FAR’s 91.123(b)(violation of an ATC instruction) and 91.13(a)(careless and reckless). After a hearing, Judge Geraghty found that the airman’s runway incursion violated the FAR’s as charged by the FAA and he affirmed the 60 day suspension.
On appeal, the airman did not dispute that he failed to hold short as instructed. Rather, he argued that Judge Geraghty’s decision should be reversed because Judge Geraghty “(1) should have admitted three exhibits that discuss runway 25L at LAX; (2) should not have allowed one of the Administrator’s witnesses to be present during the hearing, while other witnesses were ordered sequestered; and (3) should not have admitted a document that contained a statement from respondent’s co-pilot, when his co-pilot did not testify, nor a hypothetical question that did not have a proper foundation.”
The Board initially noted that the Federal Rules of Evidence are considered “non-binding” in NTSB hearings. It then stated that it “will only entertain evidentiary questions when they amount to prejudicial error.” An evidentiary error is only considered prejudicial when it actually affects the outcome of the case. The Board then addressed each of the airman’s arguments and concluded that none of the evidentiary issues raised by the airman would have affected the outcome of the case. As a result, the Board affirmed Judge Geraghty’s decision.
