In a recent NTSB opinion, Administrator v. Moeslein, the Board affirmed an ALJ’s finding that an airman holding an ATP certificate was pilot in command (PIC) during a flight in which the airman and another pilot violated the Washington, D.C. air defense identification zone (“ADIZ”). In its order seeking to suspend the airman’s ATP certificate for 90 days, the FAA alleged that the airman was PIC for the flight and did not comply with the operating requirements of NOTAM 3-2126 (the NOTAM establishing the DC ADIZ and corresponding operational requirements) in violation of FARs 91.13(a) (careless and reckless), 91.139(c) (failure to comply with emergency NOTAM), 91.215(c) (failure to use transponder), and 99.7 (compliance with security instructions), typical regulatory violations for an ADIZ incursion. After a hearing, the ALJ affirmed the FAA’s order on all counts.
On appeal, the airman argued that the ALJ had committed a number of errors in reaching his decision. In particular, the airman argued that the ALJ incorrectly determined that the airman was PIC for the flight. In rejecting the airman’s argument, the Board held that both the facts of the case, as well as the established case law on the subject, supported the ALJ’s decision. Specifically, when the airman contacted the FAA pilot deviation line after the flight, he identified himself as the pilot and did not mention a second pilot. Additionally, the private pilot with whom the airman was flying had 500 flying hours and was working toward a commercial pilot certificate, as opposed to the airman who had over 7,000 hours and was an ATP and a CFI. Further, the airman and the private pilot had an established instructor/student relationship in which the airman had provided many hours of instruction to the private pilot. Finally, the Board noted the absence of a designation of PIC by agreement between the airman and the private pilot. These facts indicated that the airman had “final authority and responsibility for the flight.”
The Board then reiterated its long-held precedent that “an instructor is always 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.” It also observed that “[a]s an ATP and CFI, [the airman] has the responsibility to make sure that he and the participants in the flight agree on such a designation of PIC. This, along with our holding that the instructor is always the PIC, promotes safety by avoiding confusion in the cockpit.” The Board also observed “that an ATP is ‘held to the highest degree of care,’ and must accept responsibility for the events of the flight” and, in this case, the airman’s “acquiescence, or even worse his obliviousness, to such violations was inexcusable.” Finally, it concluded that application of the established law to the facts of the case required a finding that the airman was PIC for the flight.
This case is, indeed, consistent with Board precedent and should be a reminder to ATP’s and CFI’s of the responsibility they will bear in the absence of clear facts and circumstances to the contrary.