In a recent NTSB decision, the Board upheld an ALJ’s finding of violation for an airman’s flight into Camp David (P-40) restricted airspace. In Administrator v. Goodman, the father and son were flying a Cessna 172 owned by the father when they were intercepted by F-16’s and forced to land. After landing the tower instructed the pilot in command (PIC) to call the FAA. According to the son, the father called the FAA. Of course, the father and son also had the mandatory chat with the secret service.
Subsequently, an FAA inspector contacted the father to discuss the airspace violation and possible enforcement action. The father then called the son who then called the FAA inspector. In that conversation the son stated that he had been the PIC. The son also sent a letter to the FAA to that effect.
However, when the expected certificate action was initiated, the son submitted an answer that simply denied that he was PIC and did not address any of the other allegations contained in the order. According to the son, he had earlier assumed responsibility for the flight to take the burden/pressure off of his father and because he did not believe the flight had actually encroached upon the restricted airspace.
At the hearing, the son and the FAA agreed that the only issue was whether the son was PIC for the flight. The son testified that when he realized the impact a certificate action would have on him, he then decided he was no longer willing to take responsibility for his father’s actions. The ALJ didn’t buy it. Although he thought the son might be protecting his father, the ALJ placed greater reliance upon the prior oral and written admissions made by the son. The ALJ affirmed the FAA’s order finding that the son had violated 14 C.F.R. 91.103 (airman’s duty in preflight to familiarize himself with all aspects of flight), 91.141 (prohibition against flying in vicinity of president), and 91.13(a) (careless and reckless) and imposed a 90 day suspension of the son’s airman certificate.
The son then requested reconsideration of the ALJ’s decision and included a letter (with a later postscript) from his father to Alabama Congressman Jo Bonner, stating among other things that he, not his son, had been the PIC. The ALJ denied the request for reconsideration. The son then appealed, continuing to argue that he was not PIC and that the Administrator failed to prove that the aircraft actually entered the expanded P-40 airspace.
The Board rejected the son’s appeals. Since the son did not respond to any of the FAA’s allegations regarding the airspace violation (other than him denying that he was PIC) and stipulated to only trying the PIC identity issue, the Board held that the son could not raise any of the other issues on appeal. The letter to the congressman was similarly rejected since it was not produced at the hearing, nor did his father testify at the hearing. The Board held that the record contained no basis for reversing the ALJ’s credibility determinations regarding the identity of the PIC.
It appears that this is a case in which the airman was trying to play the system by raising the PIC identity issue. He placed himself in a tough situation. Once he made his admissions, he either had to take the blame or try to shift it back to his father. Unfortunately, he wasn’t able to meet his burden of proof. Also, in hindsight, he probably made procedural errors in failing to respond to all of the FAA’s allegations and by stipulating to only presenting evidence at the hearing regarding the identity issue.
Although the procedural issues may not have ultimately been dispositive, an aviation attorney certainly could have preserved the issues and perhaps asserted additional defenses on behalf of the airman. Not to mention presenting a stronger argument regarding the PIC identity issue.
