A recent NTSB case reveals an FAA enforcement action against an airman that resulted from an FAA air safety investigator’s chance drive past an airport at the time the airman was landing. In Administrator v. Schwandt the inspector was driving by an airport and observed the airman make a 60° pitch approach and then pull up at a 60° angle and make a 90° “knife edge” bank after which the aircraft then came around in the flight pattern and landed. However, he did not see the aircraft when it was very close to the ground because it was obscured by trees and structures. Although the airport was not the inspector’s destination, the inspector diverted to the airport and spoke with the airman. According to the inspector, the airman acknowledged that the maneuvers he had performed were not necessary for normal flight and then stated: “it’s been a long, wet spring and this is our chance to get out and fly.” As you might guess, an enforcement action followed.
The FAA issued an order alleging that the airman had violated FAR’s 91.119(c)(minimum safe altitudes), 91.303(c), (d), and (e)(aerobatic flight), and 91.13(a)(careless and reckless) and seeking to suspend the airman’s airline transport certificate for 180 days. After a hearing, Judge Mullins affirmed the violations as alleged by the FAA, but reduced the sanction from 180 days to 90 days. The airman then appealed to the full NTSB Board.
On appeal, the airman argued that the inspector’s testimony was not credible because the airman was not aware prior to the hearing that the inspector would testify as to the 90 degree and 60 degree banks and because the FAA did not provide any supporting testimony from other witnesses. He also argued that the inspector either misperceived the attitudes of the aircraft or misrepresented them and that he did not make the admission claimed by the inspector.
The Board rejected the airman’s arguments. It first held that the airman’s failure to interpose “a well framed discovery request” seeking the inspector’s intended testimony, which the airman could have given to the FAA, could not form the basis for appeal of the decision. It also noted that the FAA’s failure to call any witnesses with testimony supporting the inspector was not required because “[i]t is the Administrator’s choice in her discretion as to how she chooses to prosecute the case.” Finally, the Board held that the inspector’s testimony proved the FAA’s case and the airman could offer no valid reason why Judge Mullins’ crediting of the inspector’s testimony was arbitrary or capricious.
I suspect, as Judge Mullins probably suspected, that it is quite likely that the airman was doing something unusual to attract the inspector’s attention and convince him that he needed to deviate to the airport to investigate. Whether the airman actually flew the aircraft in a manner as testified to by the inspector truly boiled down to a credibility determination between the airman and the inspector. Unfortunately for the airman, he was neither able to introduce evidence beyond his own testimony to counter the testimony of the inspector nor was he able to sufficiently discredit the inspector’s testimony.
