Would a NASA form help?

[Jesse Wright]

Just had a thought... could the two pilots who busted the DC restricted
airspace avoid a certificate action by filing an ASRS report? Here's
my thought process on this.

Was the violation inadvertant? Probably so. From the limited reports
that I have seen, they were aware of the restricted zones and they had
a plan to navigate around them. They just were unable or did not
follow their planned route. Did the violation cause an accident? No.
Probably the gotcha will be committing a criminal offense. White House
+ Fighter Jet + People Running Chaotically Through DC = You're S.O.L.
I'm sure that there is some sort of criminal negligence involved,
although I don't specifically know what they would be charged with.

But, could they still keep there licenses?

Of course, the NASA form will only hold water with respect to the FAA.
These guys still have all of the other acronyms to answer to, in
addition to everyone else involved in GA. Personally, I find that
mistake unexcusable. Ultimately, we will all feel the backlash from
this.

[Gary Drescher]

"Jesse Wright" > wrote in message
oups.com...
> Just had a thought... could the two pilots who busted the DC restricted
> airspace avoid a certificate action by filing an ASRS report? Here's
> my thought process on this.
>
> Was the violation inadvertant? Probably so. From the limited reports
> that I have seen, they were aware of the restricted zones and they had
> a plan to navigate around them. They just were unable or did not
> follow their planned route. Did the violation cause an accident? No.
> Probably the gotcha will be committing a criminal offense. White House
> + Fighter Jet + People Running Chaotically Through DC = You're S.O.L.
> I'm sure that there is some sort of criminal negligence involved,
> although I don't specifically know what they would be charged with.
>
> But, could they still keep there licenses?

The AP is reporting that since the incursion was inadvertent, no charges are
being filed. In the absence of any other source of culpability, merely
getting lost cannot be a criminal offense. If they file ASRS reports on
time, and have not been found to have violated other FARs within the past
five years, then they have guaranteed immunity against any civil penalties
or license suspensions. If they sell their story to the infotainment
industry, they could even come out ahead on the whole deal. :)

--Gary

[Maule Driver]

I'd bring lube. Selling it could require lots of lube.

"Gary Drescher" > wrote in message
...
> The AP is reporting that since the incursion was inadvertent, no charges
are
> being filed. In the absence of any other source of culpability, merely
> getting lost cannot be a criminal offense. If they file ASRS reports on
> time, and have not been found to have violated other FARs within the past
> five years, then they have guaranteed immunity against any civil penalties
> or license suspensions. If they sell their story to the infotainment
> industry, they could even come out ahead on the whole deal. :)
>
> --Gary
>
>

[George Patterson]

Jesse Wright wrote:
> Just had a thought... could the two pilots who busted the DC restricted
> airspace avoid a certificate action by filing an ASRS report?

No.

George Patterson
There's plenty of room for all of God's creatures. Right next to the
mashed potatoes.

[Gary Drescher]

"George Patterson" > wrote in message
news:fdzge.1518$1f5.1398@trndny01...
> Jesse Wright wrote:
>> Just had a thought... could the two pilots who busted the DC restricted
>> airspace avoid a certificate action by filing an ASRS report?
>
> No.

Why not? The government has extended a written, binding guarantee of
immunity. How can that be abrogated if the specified conditions are met?

--Gary

[Viperdoc]

Filing a NASA form does NOT guarantee immunity. If, for example, an
individual performed an intentional or willful violation of the FAR's, a
NASA form will not protect the pilot from prosecution or enforcement action.

[Gary Drescher]

"Viperdoc" > wrote in message
...
> Filing a NASA form does NOT guarantee immunity. If, for example, an
> individual performed an intentional or willful violation of the FAR's, a
> NASA form will not protect the pilot from prosecution or enforcement
> action.

That's why I said "if the specified conditions are met". Inadvertency is one
of those conditions.

--Gary

[George Patterson]

Gary Drescher wrote:
>
> Why not? The government has extended a written, binding guarantee of
> immunity. How can that be abrogated if the specified conditions are met?

My understanding is that that contract does not apply to violations of the ADIZ.

George Patterson
There's plenty of room for all of God's creatures. Right next to the
mashed potatoes.

[[email protected]]

The kicker is that those guys *knew* they would be flying in very close
proximity of the ADIZ and were so ill-prepared for it.

Did they even have as much as a handheld GPS with them? How about a
backup handheld radio?

Considering the extreme seriousness of how the feds view that
particular ADIZ, why *any* VFR pilot flying within 20 miles of the
perimeter of it doesn't call up for flight following, is just
mind-bogglingly idiotic to me.

For those folks who'll cry that they have an antique nordo airplane and
wish to fly it near the ADIZ... sorry, but for all practical purposes
you've lost that freedom years ago. Unfair? Hell yes it is unfair as
hell, but it is the harsh reality and all the ****ing and moaning about
it will never change the way it is.

I've never even been within 500 miles of DC in my entire life, and have
minimal experience flying in big city controlled airspaces, yet I've
got enough functioning brain cells to know that if I had to fly
anywhere near to the DC ADIZ, that I'd need to have both my airplane
and myself fully-equipped for dealing with that abnormal situation
there before I'd even consider flying within 100 miles of the place.

[Gary Drescher]

"George Patterson" > wrote in message
news:4yAge.1558$1f5.595@trndny01...
> Gary Drescher wrote:
>>
>> Why not? The government has extended a written, binding guarantee of
>> immunity. How can that be abrogated if the specified conditions are met?
>
> My understanding is that that contract does not apply to violations of the
> ADIZ.

The written immunity policy does not provide for any exception concerning
ADIZs.

--Gary
..

[George Patterson]

Gary Drescher wrote:
>
> The written immunity policy does not provide for any exception concerning
> ADIZs.

No, things work the other way 'round. The rules about the ADIZ provide for an
exception to the immunity policy. Violate it, you get a suspension.

George Patterson
There's plenty of room for all of God's creatures. Right next to the
mashed potatoes.

[Gary Drescher]

"George Patterson" > wrote in message
news:E2Vge.4953$1f5.4341@trndny01...
> Gary Drescher wrote:
>>
>> The written immunity policy does not provide for any exception concerning
>> ADIZs.
>
> No, things work the other way 'round. The rules about the ADIZ provide for
> an exception to the immunity policy. Violate it, you get a suspension.

If the government explicitly says "I promise you immunity from sanctions if
you meet conditions A, B, C", and you go ahead and meet conditions A, B, C,
then the government can't turn around and say "But wait! We've also decided
that there's an exception unless you also meet condition D, so we're going
ahead and imposing sanctions". That would just be a blatant violation of the
stated promise; if they could get away with that, then immunity promises
would be meaningless. And as I pointed out, our legal system depends heavily
on the integrity of immunity promises. It's not something the courts would
allow the government to abandon just to impose a minor penalty on some
pilot. So it's not surprising that no one has been able to cite an actual
example where an ASRS immunity promise was broken (due to an accidental ADIZ
incursion, or for any other reason).

--Gary

[George Patterson]

Gary Drescher wrote:
>
> If the government explicitly says "I promise you immunity from sanctions if
> you meet conditions A, B, C", and you go ahead and meet conditions A, B, C,
> then the government can't turn around and say "But wait! We've also decided
> that there's an exception unless you also meet condition D, so we're going
> ahead and imposing sanctions".

Of course it can.

> That would just be a blatant violation of the
> stated promise; if they could get away with that, then immunity promises
> would be meaningless.

So?

> And as I pointed out, our legal system depends heavily
> on the integrity of immunity promises.

This is not our legal system. This is the TSA giving orders to the FAA.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

[Gary Drescher]

"George Patterson" > wrote in message
news:Ew4he.422$mv5.82@trndny07...
> This is not our legal system. This is the TSA giving orders to the FAA.

Until there's a coup d'etat, the FAA's actions are subject to judicial
review.

What puzzles me is why you think the government is simultaneously so blasé
about the incursion that they don't even press any criminal charges, yet so
determined that they would try to jettison due process by abrogating a
legally binding ASRS promise of immunity merely in order to impose a minor
administrative penalty.

--Gary

[Charles O'Rourke]

Gary Drescher wrote:
> If the government explicitly says "I promise you immunity from
sanctions if
> you meet conditions A, B, C", and you go ahead and meet conditions A,
B, C,
> then the government can't turn around and say "But wait! We've also
decided
> that there's an exception unless you also meet condition D, so we're
going
> ahead and imposing sanctions". That would just be a blatant violation
of the
> stated promise; if they could get away with that, then immunity
promises
> would be meaningless. And as I pointed out, our legal system depends
heavily
> on the integrity of immunity promises. It's not something the courts
would
> allow the government to abandon just to impose a minor penalty on
some
> pilot. So it's not surprising that no one has been able to cite an
actual
> example where an ASRS immunity promise was broken (due to an
accidental ADIZ
> incursion, or for any other reason).

I don't know if it's true that ASRS immunity isn't available for ADIZ
incursions -- but just because it isn't, that doesn't mean a promise is
being broken. Due process is only being interfered with if they change
the rules after the fact. The ASRS immunity policy lays out specific
exceptions beforehand, one of them being that the action in question
didn't disclose "a lack of qualification or competency."

IMO, being so lost that someone ends up 3 miles from the White House
shows a lack of qualification or competency. The immunity policy
references 49 U.S.C. Sec. 44709, and that says that the FAA
Administrator can make that decision after an investigation or a
re-examination.

So there's no blatant violation of the stated promise. The stated
promise is that you get immunity if you file a report, and your action
didn't fall under several specific exceptions.

(Admittedly, wouldn't most mistakes that could get your certificate
revoked show some lack of qualification or competancy? I don't know
what the standard is for the FAA to decide you need a re-examination.)

The links to the ASRS immunity policy and 49 U.S.C. Sec 44709:

http://asrs.arc.nasa.gov/immunity_nf.htm

http://www4.law.cornell.edu/uscode/html/uscode49/usc_sec_49_00044709----000-.html

Charles.
-N8385U

[George Patterson]

Gary Drescher wrote:
>
> Until there's a coup d'etat, the FAA's actions are subject to judicial
> review.

And if the FAA doesn't like the results of that review, they take it to the
NTSB, who will almost always overrule the judge.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

[Gary Drescher]

"Charles O'Rourke" > wrote in message
ups.com...
> (Admittedly, wouldn't most mistakes that could get your certificate
> revoked show some lack of qualification or competancy? I don't know
> what the standard is for the FAA to decide you need a re-examination.)

Yes, this was discussed under the "Cessna over DC--NASA Form?" thread. The
thing is that Section 44709 only permits certificate action if a pilot is
reasonable judged to be unable to fly safely in the *future*. It can't be
used to impose a punishment or deterrent. So at worst, it could be invoked
here to require some remedial navigational training.

--Gary

[Gary Drescher]

"George Patterson" > wrote in message
news:ea5he.93$n95.6@trndny08...
> Gary Drescher wrote:
>>
>> Until there's a coup d'etat, the FAA's actions are subject to judicial
>> review.
>
> And if the FAA doesn't like the results of that review, they take it to
> the NTSB, who will almost always overrule the judge.

Overrule the judge? Are you claiming that the NTSB is exempt from oversight
by the judiciary?

--Gary

[Charles O'Rourke]

Gary Drescher wrote:
> Yes, this was discussed under the "Cessna over DC--NASA Form?"
thread. The
> thing is that Section 44709 only permits certificate action if a
pilot is
> reasonable judged to be unable to fly safely in the *future*. It
can't be
> used to impose a punishment or deterrent. So at worst, it could be
invoked
> here to require some remedial navigational training.

Right, but if the FAA can impose some remedial navigational training
(or other such re-examination), doesn't that specifically fall under
the ASRS immunity exceptions? So in other words, the re-examination
under Section 44709 isn't the punishment, but the fact that it happens
removes your ASRS immunity and leaves you open to the possibility of
certificate action.

I guess the easiest way to figure this out would be to find some
FAA/court decision where a pilot filed an ASRS form but still was
punished because his action fell under one of the exceptions. I'll
look around.

Charles.
-N8385U

[George Patterson]

Gary Drescher wrote:
>
> Overrule the judge? Are you claiming that the NTSB is exempt from oversight
> by the judiciary?

Absolutely.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

[Jesse Wright]

"...IMO, being so lost that someone ends up 3 miles from the White
House shows a lack of qualification or competency..."

Using this analogy, a pilot would be exhibiting a "lack of competency"
and would not be covered by ASRS immunity if they busted a Class Bravo
airspace. But, isn't immunity granted for that type of offense?

Yes, the DC ADIZ is the most sensitive of all airspaces. But, with
lack of criminal charges, this incident boils down to a highly
publicized airspace incursion.

Jesse

[Gary Drescher]

"Charles O'Rourke" > wrote in message
oups.com...
> Right, but if the FAA can impose some remedial navigational training
> (or other such re-examination), doesn't that specifically fall under
> the ASRS immunity exceptions? So in other words, the re-examination
> under Section 44709 isn't the punishment, but the fact that it happens
> removes your ASRS immunity and leaves you open to the possibility of
> certificate action.

That interpretation is certainly arguable. The main counter-argument, I
think, is that on that interpretation, almost any violation disclosed in an
ASRS form could be construed as an "exception" to the immunity promise,
which would make the promise essentially a hoax. So it's hard to see how
that exception could be applied except when a pilot is reasonably deemed to
be irremediably unsafe.

> I guess the easiest way to figure this out would be to find some
> FAA/court decision where a pilot filed an ASRS form but still was
> punished because his action fell under one of the exceptions. I'll
> look around.

Thanks, that'd be helpful.

--Gary

[Dave Stadt]

"George Patterson" > wrote in message
news:Ew4he.422$mv5.82@trndny07...
> Gary Drescher wrote:
> >
> > If the government explicitly says "I promise you immunity from sanctions
if
> > you meet conditions A, B, C", and you go ahead and meet conditions A, B,
C,
> > then the government can't turn around and say "But wait! We've also
decided
> > that there's an exception unless you also meet condition D, so we're
going
> > ahead and imposing sanctions".
>
> Of course it can.
>
> > That would just be a blatant violation of the
> > stated promise; if they could get away with that, then immunity promises
> > would be meaningless.
>
> So?
>
> > And as I pointed out, our legal system depends heavily
> > on the integrity of immunity promises.
>
> This is not our legal system. This is the TSA giving orders to the FAA.

Both of which march to their own drummers and follow no rules but their own
which are made up on the spot if need be.

>
> George Patterson
> "Naked" means you ain't got no clothes on; "nekkid" means you ain't
got
> no clothes on - and are up to somethin'.

[Gary Drescher]

"George Patterson" > wrote in message
news:um5he.122$n95.38@trndny08...
> Gary Drescher wrote:
>>
>> Overrule the judge? Are you claiming that the NTSB is exempt from
>> oversight by the judiciary?
>
> Absolutely.

So even though the President has to obey the judiciary, the NTSB doesn't? Is
there a documented example of such defiance by the NTSB?

--Gary

[Dave Stadt]

"Gary Drescher" > wrote in message
...
> "George Patterson" > wrote in message
> news:ea5he.93$n95.6@trndny08...
> > Gary Drescher wrote:
> >>
> >> Until there's a coup d'etat, the FAA's actions are subject to judicial
> >> review.
> >
> > And if the FAA doesn't like the results of that review, they take it to
> > the NTSB, who will almost always overrule the judge.
>
> Overrule the judge? Are you claiming that the NTSB is exempt from
oversight
> by the judiciary?

Certainly, where you been?

>
> --Gary
>
>

[Charles O'Rourke]

Jesse Wright wrote:
> "...IMO, being so lost that someone ends up 3 miles from the White
> House shows a lack of qualification or competency..."
>
> Using this analogy, a pilot would be exhibiting a "lack of competency"
> and would not be covered by ASRS immunity if they busted a Class Bravo
> airspace. But, isn't immunity granted for that type of offense?
>
> Yes, the DC ADIZ is the most sensitive of all airspaces. But, with
> lack of criminal charges, this incident boils down to a highly
> publicized airspace incursion.

True, I don't know just how incompetant the pilot has to be before they
lose their ASRS immunity. Is there a distinction between getting a
little too close to the Class Bravo, and blasting right through the
center of it without talking to anyone? It's easier to understand the
former as an honest mistake, the latter shows a real lack of proficiency
with navigation and would create some serious doubt as to whether the
offender is a safe pilot. The latter is more like the current case,
where they ended up right over the center of the FRZ.

Personally, I'm not sure I understand why the ASRS immunity is granted
in the case of airspace busts. Isn't the idea to have pilots come clean
so the system can be repaired if something is broken? If a pilot just
messes up and enters the Class Bravo without talking to ATC, the system
didn't fail, the pilot did. But I guess that's a different discussion.

Charles.
-N8385U

[Jesse Wright]

"...Is there a distinction between getting a little too close to the
Class Bravo, and blasting right through the center of it without
talking to anyone.."

Sure there is a distinction. The two scenarios have two very different
consequences. If you graze the edge of Class B, you may not cause any
disturbance. If you fly directly over the departure end of the
runways, then you would probably close the airport down. But, if you
are truly lost and bust the airspace unintentionally, ASRS doesn't
define a threshold of error within its rules.

Jesse

[Jesse Wright]

"..Isn't the idea to have pilots come clean so the system can be
repaired if something is broken... "

Agreed.

[Gary Drescher]

"Jesse Wright" > wrote in message
oups.com...
> Yes, the DC ADIZ is the most sensitive of all airspaces. But, with
> lack of criminal charges, this incident boils down to a highly
> publicized airspace incursion.

I emailed the NASA ASRS folks today to ask them if there was any DC ADIZ
exception to the ASRS immunity policy. I received the following reply:

"This had come to our attention numerous times when the TFR/ADIZ first
became a focus after 9/11. We received a clarification that the ASRS
limited immunity provisions would apply without difference. However, there
are still some FAA people who think that there is some higher power over
these type of violations, but we had the FAA Legal Office weigh in and this
was not true."

--Gary

[Charles O'Rourke]

Jesse Wright wrote:
> "...Is there a distinction between getting a little too close to the
> Class Bravo, and blasting right through the center of it without
> talking to anyone.."
>
> Sure there is a distinction. The two scenarios have two very different
> consequences. If you graze the edge of Class B, you may not cause any
> disturbance. If you fly directly over the departure end of the
> runways, then you would probably close the airport down. But, if you
> are truly lost and bust the airspace unintentionally, ASRS doesn't
> define a threshold of error within its rules.

Well, I realize there is a distinction safety-wise. But ASRS does
define a threshold of error, doesn't it? The "lack of qualifications or
incompetance" test. It seems you'd be a lot more likely to meet that
test if you cross right over the departure end of the runways without a
clue than if you accidentally bust the edge of the Class Bravo.

Charles.
-N8385U

[Jesse Wright]

> I emailed the NASA ASRS folks today to ask them if there was any DC
ADIZ
> exception to the ASRS immunity policy. I received the following
reply:
>
> "This had come to our attention numerous times when the TFR/ADIZ
first
> became a focus after 9/11. We received a clarification that the ASRS

> limited immunity provisions would apply without difference. However,
there
> are still some FAA people who think that there is some higher power
over
> these type of violations, but we had the FAA Legal Office weigh in
and this
> was not true."
>
> --Gary

That was a quick response from NASA. Thanks for passing on the info.

Jesse

[Jesse Wright]

Charles O'Rourke wrote:
> Well, I realize there is a distinction safety-wise. But ASRS does
> define a threshold of error, doesn't it? The "lack of qualifications
or
> incompetance" test. It seems you'd be a lot more likely to meet that

> test if you cross right over the departure end of the runways without
a
> clue than if you accidentally bust the edge of the Class Bravo.
>
> Charles.
> -N8385U


I may be wrong, but I think that the wording regarding lack of
qualifications or incompetence comes from 49 CFR 44709. After reading,
my interperetation is that you must be found to be deficient via an
inspection. I'm thinking a ramp check instance. The other
qualifications for action under 44709 are a sonic boom violation (not
in a 150...) or violating the fish & wildlife act of '56.

I'd be curious to know if this interperetation is correct.

JW

[George Patterson]

Gary Drescher wrote:
>
> So even though the President has to obey the judiciary, the NTSB doesn't? Is
> there a documented example of such defiance by the NTSB?

Tons. The procedure if you are charged with a violation is that your case is
heard first by an FAA board. If you object to their ruling, you can appeal it to
a law judge. If either you or the FAA objects to the judge's ruling, you or they
can appeal to the 7 member National Transportation Safety Board. Their ruling is
final -- there is no appeal.

Remember that you have not been charged with a crime. You have been charged with
violation of the FAA rules instituted for the safety of the American public. The
judicial branch does not have the final say.

The NTSB is infamous in pilot circles for reversing the judges' decisions and
reinstituting (at least in part) the original penalty applied by the FAA.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

[Gary Drescher]

"George Patterson" > wrote in message
news:E5che.41$Vu6.14@trndny03...
> Gary Drescher wrote:
>>
>> So even though the President has to obey the judiciary, the NTSB doesn't?
>> Is there a documented example of such defiance by the NTSB?
>
> Tons.

Even one will suffice. But can you cite any documentation, please?

> If either you or the FAA objects to the judge's ruling, you or they can
> appeal to the 7 member National Transportation Safety Board. Their ruling
> is final -- there is no appeal.

What leads you to believe that?

Thanks,
Gary

[Mike Granby]

> If either you or the FAA objects to the judge's ruling, you
> or they can appeal to the 7 member National Transportation
> Safety Board. Their ruling is final -- there is no appeal.

I thought you could take it to Federal Appeals Court...

http://www.kscourts.org/ca10/cases/2001/09/00-9500.htm

....and thence to the Supreme Court, although I don't think SCOTUS has
ever accepted such a case...

[George Patterson]

Gary Drescher wrote:
>
> I emailed the NASA ASRS folks today to ask them if there was any DC ADIZ
> exception to the ASRS immunity policy. I received the following reply:
>
> "This had come to our attention numerous times when the TFR/ADIZ first
> became a focus after 9/11. We received a clarification that the ASRS
> limited immunity provisions would apply without difference. However, there
> are still some FAA people who think that there is some higher power over
> these type of violations, but we had the FAA Legal Office weigh in and this
> was not true."

Interesting. From AOPA --

FAA enforcement action likely

Hard to believe, but the media got it wrong. Again. Despite some news reports to
the contrary, the FAA has not issued any action against the pilot of the Cessna
150 that wandered into the country's most restricted airspace on Wednesday. Not yet.

In an exclusive interview, the FAA's spokesman, Greg Martin, told AOPA: "The
seriousness of the incident merits the most thorough and careful examination
possible of all pertinent information related to this incident. Once that has
been completed, we will take all appropriate steps with respect to enforcement
action."

On the basis of that, it sounds like just a matter of time before the pilot,
Hayden Shaeffer, will be served with the papers indicating the FAA's intentions
regarding his flying privileges. AOPA has received a very high volume of calls
and e-mails regarding the incident. By far, the vast majority of the sentiment
favors the strongest possible action against the pilot.

Martin indicated that the final outcome is likely to occur next week. The most
serious action the FAA could take would be an emergency revocation of Shaeffer's
certificate. In that case, he could appeal the emergency revocation to an NTSB
administrative law judge, or he could apply for a new certificate in a year,
which would only be issued if he passes knowledge and practical tests.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

[Gary Drescher]

"George Patterson" > wrote in message
news:RQche.357$KQ6.183@trndny02...
> Gary Drescher wrote:
>>
>> I emailed the NASA ASRS folks today to ask them if there was any DC ADIZ
>> exception to the ASRS immunity policy. I received the following reply:
>>
>> "This had come to our attention numerous times when the TFR/ADIZ first
>> became a focus after 9/11. We received a clarification that the ASRS
>> limited immunity provisions would apply without difference. However,
>> there are still some FAA people who think that there is some higher power
>> over these type of violations, but we had the FAA Legal Office weigh in
>> and this was not true."
>
> Interesting. From AOPA --
>
> FAA enforcement action likely

Naturally the FAA will want to come down hard on this guy. But that has no
bearing on whether they can take any action against him if he meets the
stated ASRS immunity conditions. (I hope for his sake that he submits an
ASRS report by the deadline.)

--Gary

[George Patterson]

Gary Drescher wrote:
>
> Even one will suffice. But can you cite any documentation, please?

A Ramp Check
(adopted from May 1996 AOPA Pilot)

A legal decision of the National Transportation Safety Board provides a look at
an actual FAA ramp check. The case shows us how a few technical violations,
coupled with some prior antagonism, can escalate into a serious problem for the
pilot of the flight being checked - in this case, a 90-day suspension of the
pilot's ATP certificate. The Board's decision leaves the pilot's
responsibilities in a ramp inspection cloudy.

It was the day before Thanksgiving, 1993. The pilot was captain of a Learjet
carrying some cargo from Sparta, Tennessee, to Monroe, Michigan. It was a
commercial flight operated under Part 135 of the Federal Aviation Regulations.
The flight made a refueling stop at Smyrna, Tennessee — which is only some 45
miles from Sparta — because of the low price of fuel at the airport there. The
pilot had called ahead to arrange with the fixed base operator at Smyrna for a
"quick turnaround." The stop was to take no more than 10 minutes. As it turned
out, it took much longer, and the second stage of the flight was eventually
canceled.

At the time that the Lear landed at Smyrna, there were two inspectors from the
Nashville Flight Standards District Office who were at the airport to talk to a
woman who owned a flight school that was having some problems. She wasn't
available, and as they saw the Lear taxi in, the inspectors decided to do a ramp
check on the Lear.

As the airplane parked, they approached it, and at least one of them presented
his credentials to the pilot, announcing the ramp inspection. According to the
captain, one of the inspectors refused to present his credentials. There had
been some prior antagonism between the inspectors and the company operating the
flight, and some litigation in federal court, but the decision gives no details.

It was an unusually thorough inspection. At the request of the inspectors, the
pilots presented their pilot and medical certificates, the aircraft registration
and airworthiness certificates, the operations manual and the operations
specification of the FAR Part 135 operator, the minimum equipment list, the load
manifests, and the shipping papers for the cargo being carried. According to the
evidence, one of the inspectors was going through the operations manuals page by
page. The inspectors were allowed into the aircraft, and they even rummaged
through the cargo. The pilots provided everything the inspectors asked for,
though things got a bit testy as the inspectors seemed to be taking their time
in an obviously time-critical situation, and the captain overheard some negative
comments. The estimates of how long the inspection took ranged from 40 to 50
minutes to as long as an hour.

After that thorough review of the documents, the inspectors found two problems
that I call "technical." They found errors in the load manifest for the flight
from Sparta to Smyrna, and they found that an IFR flight plan had not been filed
for that flight.

Even though, on the flight to Smyrna, the Lear was more than 3,000 pounds under
allowable gross weight and well within center-of-gravity limits, the load
manifest was technically in error. The copilot erroneously used the standard
average weights of 165 pounds for each of the crewmembers (as allowed on a
larger airplane he had been flying), for a total of 330 pounds, instead of their
actual weights which totalled about 490 pounds. Also, the weight of the cargo
was listed as 330 pounds instead of the actual weight of 520 pounds. The weight
of the cargo listed on the shipping papers was in kilograms, and the 330-pound
figure used by the crew was given to them by the person who delivered cargo to
the airplane - which was the usual practice. In any event, technically, the load
manifest was wrong.

As for the absence of an IFR flight plan, the operations specification did
require that turbojet airplane flights conducted under Part 135 must be operated
under IFR though there seemed to be some confusion in the ops specs. However,
the flight, as short as it was, was in constant communication with air traffic
control during the entire flight, under radar contact, utilizing flight
following, but, technically, not IFR.

The problems really became exacerbated when one of the inspectors wanted to
check the fuel load for the next leg of the flight. The drivers of the FBO's
fuel trucks, under instructions to top off the tip tanks, refueled the airplane.
The Lear has a fuselage tank — a "trunk" tank, and filling the tip tanks did not
necessarily mean that the fuselage tank would also be full. To determine the
amount of fuel in the fuselage tank, the inspector asked the pilot to turn on
the aircraft's Master switch so that the fuel gauge could be read. The pilot
refused, telling the inspector that he was in a hurry. The pilot later testified
to his understanding that while he was under obligation to allow access to the
airplane and the paperwork, he was not under obligation to do anything like
turning on the Master switch.

He had not been asked to do anything like that in previous ramp checks. And, his
understanding had been confirmed in conversations that he had with other pilots
and FAA inspectors.

The inspector then demanded an en route inspection, presumably to be on board
when the Master switch had to be turned on and the gauge could be read. The
pilot, now with the added fuel, refused to conduct the flight with the inspector
on board, saying that the aircraft would be over gross weight if it took off
with the inspector on board. The inspector suggested that the pilot burn off 200
pounds of fuel before takeoff. The pilot didn't consider that suggestion viable
and walked away from the aircraft. The flight was canceled. Another jet was
dispatched to complete the flight. The crew repositioned the Lear to another
airport in Tennessee and then got in their cars to try to make it home for
Thanksgiving.

The inspectors sent out three letters, to the pilots and the operator, notifying
them that this incident was under investigation. When the operator received the
letter, the operator sent a fax to the pilots, who were on a trip, grounding
them and telling them to report to Houston for an employment evaluation
interview and retraining. Company officials believed that if they were tough on
the pilots, that would satisfy the FAA and the matter would be dropped. That was
not to be, at least not for the captain. The decision does not tell us what
action was taken against the company or the copilot.

Ultimately, the FAA issued an order suspending the captain's ATP certificate for
90 days, charging him with several regulatory violations, including preparing an
inaccurate load manifest, failing to operate the flight IFR as required by the
operations specifications, and failing to allow the inspectors to conduct the
ramp inspection. The FAA also charged the pilot with carelessly endangering life
or property.

The captain appealed the suspension to the NTSB. A hearing was held before an
administrative law judge, who affirmed the FAA in part and reduced the
suspension to 45 days. While the judge found that the FAA request to turn on the
Master switch was reasonable, he also found that the captain's refusal was also
reasonable. He did not think it reasonable for the FAA to expect the captain to
burn off 200 pounds of fuel in order to accommodate the en route inspection. He
threw out the two charges related to interfering with the ramp inspection and
reduced the suspension. Both the captain and the FAA further appealed the law
judge's decision to the full five-member Board. The full Board granted the FAA's
appeal and reinstated the 90-day suspension. It denied the captain's appeal.

The full Board agreed with the FAA that by refusing to turn on the Master
switch, the pilot prevented the inspectors from completing the inspection. The
Board rejected the pilot's argument that he was not required by regulation to
assist the FAA in its inspection. The Board also said that the expense to the
carrier of burning off 200 pounds of fuel was "minimal." The fact that "both
sides may have become impatient with one another" does not warrant a reduction
of the sanction. It affirmed the FAA position that the violations "potentially"
endangered others. It reinstated the 90-day suspension.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

[George Patterson]

Gary Drescher wrote:
>
> Naturally the FAA will want to come down hard on this guy. But that has no
> bearing on whether they can take any action against him if he meets the
> stated ASRS immunity conditions. (I hope for his sake that he submits an
> ASRS report by the deadline.)

Well, they've done it before.

From AvWeb 11/13/03

TFRs, ASRS, And Avoiding Enforcement Action...

The pilot who plodded along in a Mooney M20 above the Potomac River on Monday
morning (11/10/03) flew within eight miles of the White House, and managed to
intrude not only into the Air Defense Identification Zone, but also its inner
ring, the Flight Restricted Zone, which extends in a radius of 15 nm from the
Washington Monument.

In some cases of piloting errors, filing a reporting form within the Aviation
Safety Reporting System can sometimes offer some level of "immunity" -- against
sanctions, not against prosecution.

FAA, spokesman William Shumann told AVweb, "In those cases where a penalty was
imposed even though an ASRS report was filed, it might be because the pilot
didn't check NOTAMs or otherwise comply with FAR 91.103, which requires a pilot
to 'become familiar with all available information concerning that flight.'" As
for satisfying those requirements, "If one wants to be legalistic, the Automated
Flight Service Stations are the only 'official' source of information, and DUAT
is the only 'authorized' source outside of AFSS," but that applies only to Part
121 and 135 -- not Part 91 operators.

Part 91 operators "can use whatever sources of weather and other information
they wish to meet the requirement of getting all the information necessary for a
safe flight," said Shumann. Concerned Part 91 operators may feel more
comfortable using only the "official" sources listed above -- regardless of the
type of operation.

The Washington ADIZ has been there for six months now, and while it has not been
decreed a permanent fixture, "There is no indication that it is going to go away
anytime soon," says Shumann. So for pilots not only in the Northeast, but
anywhere, it goes without saying: check NOTAMS and choose your information
sources wisely. And if you ever do find an otherwise friendly F-16 off your
wing, don't forget your intercepting signals, and intercept procedures.

....In The Aftermath Of Another Incursion

Could Monday's incursion of White House airspace by a Mooney pilot actually be a
blessing in disguise? It may turn out that way if it highlights what's becoming
an increasing frustration for the FAA -- and GA pilots. Since Feb. 10, when the
ADIZ was put in place in Washington, it has been violated more than 600 times.
"Frankly, we're a bit frustrated that pilots are still violating it, and we
don't know why," the FAA's William Shumann told AVweb yesterday. "It's on the
charts, it's on our Web site."

Pilots who violate the ADIZ (so far none have been discovered to be full-fledged
evil-doers, or even to harbor any ill-intent) generally get a 30- to 90-day
suspension of their certificate, Shumann said, but each case is handled
individually. The range of possibilities does include revocation. It might be
more understandable that pilots can be tripped up by Temporary Flight
Restrictions that appear with no warning (like those that follow the president),
but it seems it would be tough to miss the ADIZ and the FRZ. The FRZ has been
violated much less often than the ADIZ, Shumann said.

Jean Mitchell, a spokeswoman for the Secret Service, told The New York Times the
pilot had thought he was abiding by the flight restrictions around Washington,
not realizing they had been changed after the terrorist attacks. The Secret
Service was satisfied that he had not intended any harm, Mitchell told the Times.

George Patterson
"Naked" means you ain't got no clothes on; "nekkid" means you ain't got
no clothes on - and are up to somethin'.

[Gary Drescher]

"George Patterson" > wrote in message
news:l8dhe.75$4d6.71@trndny04...
> Gary Drescher wrote:
>>
>> Even one will suffice. But can you cite any documentation, please?
>
> A Ramp Check
> (adopted from May 1996 AOPA Pilot)
> ...

Thanks. But there's no assertion there that the full Board's decision is not
subject to judicial review (let alone any *evidence* for such an assertion).
Think about it--how could the NTSB possibly have acquired such an
astonishing power? Neither Congress nor the President has such a power, nor
the ability to confer such a power on any other person or group.

By the way, here's what the NTSB itself says about it: "If either the FAA or
the airman is dissatisfied with the judge's decision, a further appeal may
be taken to the NTSB's full five-member Board. If the airman or FAA is
dissatisfied with the full Board's order, either may obtain judicial review
in a federal appeals court. However, the FAA can only appeal the Board's
order in cases that it determines may have a significant adverse impact on
the implementation of the Federal Aviation Act."
(http://www.ntsb.gov/abt_ntsb/olj.htm)

--Gary

[TaxSrv]

"George Patterson" wrote:
>... If either you or the FAA objects to the judge's ruling, you or
they
> can appeal to the 7 member National Transportation Safety Board.
> Their ruling is final -- there is no appeal.
>

Yes there is -- to the Circuit Courts of Appeal, and to the Supreme
Court.

Fred F.

[Gary Drescher]

"George Patterson" > wrote in message
news:qwdhe.458$mv5.380@trndny07...
> Gary Drescher wrote:
>>
>> Naturally the FAA will want to come down hard on this guy. But that has
>> no bearing on whether they can take any action against him if he meets
>> the stated ASRS immunity conditions. (I hope for his sake that he submits
>> an ASRS report by the deadline.)
>
> Well, they've done it before.
>
> From AvWeb 11/13/03
>
> TFRs, ASRS, And Avoiding Enforcement Action...

No, that article doesn't say they've done it before. The article does not
assert that any pilot who met the ASRS immunity conditions was denied
immunity for busting an ADIZ or FRZ. True, the article does quote an FAA
spokesperson as *guessing* that some pilots who filed ASRS reports "might"
have been denied immunity because they failed to get proper preflight
briefings (rather than because they failed to meet the stated immunity
conditions). But even if the quote is accurate (which is uncertain), all we
have is an implausible speculation by a random spokesperson; there is no
assertion (as opposed to a mere guess)--and certainly no evidence--that any
such denial of promised immunity has ever succeeded, or has even been
attempted, or that it could withstand judicial review.

--Gary

[Charles O'Rourke]

George Patterson wrote:
> Remember that you have not been charged with a crime. You have been
> charged with violation of the FAA rules instituted for the safety of the
> American public. The judicial branch does not have the final say.

The judicial branch has the final say in both civil and criminal
matters. You could appeal your case all the way up to the Supreme
Court, if you wanted to pay for the lawyers all the way up. (There's no
guarantee that any of the courts would hear your case, but even their
decision to hear your case or not is a form of judicial review.)

Here is a case where the U.S. Court of Appeals overrules the judgment of
the FAA and the NTSB. Especially note this paragraph:

---
The FAA and the NTSB argue that this Court does not have
jurisdiction to hear Reder's appeal. We disagree.

Judicial review of FAA or NTSB orders is contemplated by 49
U.S.C.  44709(f) (1994) of the Federal Aviation Act's Safety
Regulations. Section 44709(f) directs that orders of the NTSB or
the FAA be reviewed pursuant to 49 U.S.C.  46110 (1994).
---

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=8th&navby=case&no=962438p

Charles.
-N8385U

[Gary Drescher]

"Charles O'Rourke" -net> wrote in message
news:lUghe.13514$iU.12603@lakeread05...
> The judicial branch has the final say in both civil and criminal matters.
> You could appeal your case all the way up to the Supreme Court, if you
> wanted to pay for the lawyers all the way up. (There's no guarantee that
> any of the courts would hear your case, but even their decision to hear
> your case or not is a form of judicial review.)

Yup.

What concerns me most about these threads is that so many pilots are willing
to believe--on the basis of mere rumors and urban legends--that we actually
live under a totalitarian system in which a minor administrative authority
routinely and openly operates without even nominal regard for due process,
and is so powerful as to be invulnerable to the judiciary! And these pilots
are willing to acquiesce to this (fortunately imaginary) totalitarianism
without mounting significant resistance. Their willingness serves as an
unwitting invitation to actually bring about such a state of affairs.

In other walks of life, of course, the Patriot Act, and US practices of
disappearance and torture, pose far more dire threats to due process and
other Constitutional and international human-rights guarantees. But at least
there *is* resistance being mounted--politically, and through litigation by
groups such as the ACLU. And there is no doubt that the judiciary has the
final say in these matters, although they have limited their intervention so
far.

--Gary

[Larry Dighera]

On Fri, 13 May 2005 23:34:53 -0400, "Gary Drescher"
> wrote in
>::

>
>> From AvWeb 11/13/03
>>
>> TFRs, ASRS, And Avoiding Enforcement Action...
>
>No, that article doesn't say they've done it before. The article does not
>assert that any pilot who met the ASRS immunity conditions was denied
>immunity for busting an ADIZ or FRZ. True, the article does quote an FAA
>spokesperson as *guessing* that some pilots who filed ASRS reports "might"
>have been denied immunity because they failed to get proper preflight
>briefings (rather than because they failed to meet the stated immunity
>conditions). But even if the quote is accurate (which is uncertain), all we
>have is an implausible speculation by a random spokesperson; there is no
>assertion (as opposed to a mere guess)--and certainly no evidence--that any
>such denial of promised immunity has ever succeeded, or has even been
>attempted, or that it could withstand judicial review.

I assume you are referring to this part of the article:

FAA, spokesman William Shumann told AVweb, "In those cases where a
penalty was imposed even though an ASRS report was filed, it might
be because the pilot didn't check NOTAMs or otherwise comply with
FAR 91.103, which requires a pilot to 'become familiar with all
available information concerning that flight.'" As for satisfying
those requirements, "If one wants to be legalistic, the Automated
Flight Service Stations are the only 'official' source of
information, and DUAT is the only 'authorized' source outside of
AFSS," but that applies only to Part 121 and 135 -- not Part 91
operators.

Part 91 operators "can use whatever sources of weather and other
information they wish to meet the requirement of getting all the
information necessary for a safe flight," said Shumann. Concerned
Part 91 operators may feel more comfortable using only the
"official" sources listed above -- regardless of the type of
operation.

Actually, it says Part 91 operators needn't obtain a weather briefing
from official sources. Given it is being reported that the PIC did
not receive a weather briefing, he may still fall under the ASRS
immunity the way I read it.

Don't get me wrong. If the PIC did indeed freeze at the controls to
the point that the student had to land the aircraft, as is being
reported, he should have his certificate revoked, IMO.

[Ron Natalie]

George Patterson wrote:
> Gary Drescher wrote:
>
>>
>> Until there's a coup d'etat, the FAA's actions are subject to judicial
>> review.
>
>
> And if the FAA doesn't like the results of that review, they take it to
> the NTSB, who will almost always overrule the judge.
>
That's not the judicial review. You never see a true judge until after
the NTSB appeal has been exhausted.

[Ron Natalie]

Gary Drescher wrote:
> "George Patterson" > wrote in message
> news:ea5he.93$n95.6@trndny08...
>
>>Gary Drescher wrote:
>>
>>>Until there's a coup d'etat, the FAA's actions are subject to judicial
>>>review.
>>
>>And if the FAA doesn't like the results of that review, they take it to
>>the NTSB, who will almost always overrule the judge.
>
>
> Overrule the judge? Are you claiming that the NTSB is exempt from oversight
> by the judiciary?
>
He's confusing the ALJ with the real judiciary.

[Jesse Wright]

George Patterson wrote:
> As for the absence of an IFR flight plan, the operations
specification did
> require that turbojet airplane flights conducted under Part 135 must
be operated
> under IFR though there seemed to be some confusion in the ops specs.
However,
> the flight, as short as it was, was in constant communication with
air traffic
> control during the entire flight, under radar contact, utilizing
flight
> following, but, technically, not IFR.

Not filing IFR, as required, is not the same as getting lost. Apples
and oranges. This is would be an intentional violation, IMO.

[Jesse Wright]

Gary Drescher wrote:
> Naturally the FAA will want to come down hard on this guy. But that
has no
> bearing on whether they can take any action against him if he meets
the
> stated ASRS immunity conditions. (I hope for his sake that he submits
an
> ASRS report by the deadline.)
>
> --Gary

Exactly. Just because someone does something that you (in this case,
the collective 'you' would be everyone associated with GA, myself
included) you can't change the rules just to punish them. Point
forward, make the appropriate laws and punishments for this type of
incident and prosecute the next guy who does this.

[Gary Drescher]

"Larry Dighera" > wrote in message
...
> Don't get me wrong. If the PIC did indeed freeze at the controls to
> the point that the student had to land the aircraft, as is being
> reported, he should have his certificate revoked, IMO.

Yup. *That* should certainly count as a Section 44709 exception to ASRS
immunity, as set forth in the written ASRS policy.

--Gary

[Peter Duniho]

"Gary Drescher" > wrote in message
...
> What concerns me most about these threads is that so many pilots are
> willing
> to believe--on the basis of mere rumors and urban legends--that we
> actually
> live under a totalitarian system in which a minor administrative authority
> routinely and openly operates without even nominal regard for due process,
> and is so powerful as to be invulnerable to the judiciary!

IMHO, part of the problem is that the "minor administrative authority" does
"routinely and openly operate without even nominal regard for due process".
That is, they act as though there is no judicial review, and are not
challenged on those actions nearly often enough. They may not actually be
"so powerful as to be invulnerable to the judiciary", but they sure act like
it on a regular basis.

Perhaps another part of the problem is that the judiciary so infrequently
chooses to review decisions made by the "minor administrative authority".
When an administration is permitted to interpret their own rules as they see
fit, and the judiciary makes the assumption that the actions of the
administration are entirely appropriate for their charter to ensure aviation
safety, without regard for their charter to promote aviation, it's easy to
see how some folks might get the wrong idea.

Pete

[Gary Drescher]

"Peter Duniho" > wrote in message
...
> They may not actually be "so powerful as to be invulnerable to the
> judiciary", but they sure act like it on a regular basis.

Perhaps. Still, it's troubling if people falsely believe the NTSB is
*literally* impervious to judicial appeal, and yet are resigned to accepting
such an astonishing state of affairs.

--Gary