Howard Fried started flying with the Army Air Corps in WWII, where he
served both as a multi-engine instructor pilot and in combat piloting B-17s.
After a stint teaching sociology and on-the-air and management jobs in the
radio business after the war, he turned to teaching flying again full-time.
Over 40,000 general aviation hours later, he is still instructing
and running his own flight school. Along the way he administered over 4,000 flight tests
as a Designated Examiner until victimized by rogue FAA
officials.
He has authored two popular flying books aimed at student pilots and
instructors, Flight Test Tips and Tales and Beyond The Checkride, and a
series of audio tapes, Checkride Tips from
Flying's Eye Of The Examiner.
While
I was at EAA AirVenture '99 at Oshkosh this year, I ran into a friend of mine
named W. Roger Mullins, better known as Judge Mullins. For those of you who may
not remember or know, he's the Administrative Law Judge (ALJ) for the National
Transportation Safety Board (NTSB) who restored Bob Hoover's medical certificate
when the FAA first took it away. The board overruled him and the battle was
joined, but that's another story. While I was standing and chatting with Roger, who
should come along but two more mutual friends of Roger and mine, John Yodice and
his lovely daughter Kathy. Both Judge Mullins and John Yodice made valuable
contributions to my latest book, VIOLATION!
Turns out all three were about to go into one of the Forum Tents and conduct
a mock trial, so what choice did I have but to enter the tent and watch the
proceedings? The case was based on an actual trial resulting from an FAA
enforcement action. All the participants had granted permission to use their
case for demonstration purposes in the form of a mock trial. No one present
(except the attorney who represented the two pilots charged with the violations)
knew the outcome of the actual case and she was not an active participant in the
mock trial. The real trial lasted two full days, but the participants in the
mock trial managed to get all the salient facts in and the judge rendered his
decision at the mock trial in two and one half-hours.
Since my latest book, VIOLATION!,
dealing with the process and the interpretation of the regulations by the ALJs,
the NTSB, and the courts, was released at Oshkosh, I found the presentation very
interesting. There were several unique features in the mock trial. For example,
John Yodice, who is one of the country's foremost lawyers representing
airpersons charged with violating the regulations, played the part of an FAA
attorney prosecuting the two airmen charged here. Kathy Yodice, another
prominent defense attorney in her father's office in Washington, took the role
of the FAA Inspector who investigated the matter and initially brought the
charges. The only two people who played their actual real life roles were Judge Mullins and the defense attorney, who represented the
pilots, although he was not the lawyer in the actual case, nor was Mullins the
actual judge.
The characters in this little drama were: Moderator, Sandy McDonough (the
defense attorney who tried the actual case); FAA Inspector Gary Skycop (played
by Kathy Yodice); FAA Attorney (played by John Yodice); civilian complainant Sam
Adams (played by Art Wasserman); the two pilots, Jeff Trueblood and Davis S.
Perfect (played by Jim Cooling and Susan Hofer); the pilot's defense attorney,
Don Quixote (played by Pat Phillips); expert witness for the pilots Aaron Stead
(played by Harry Riggs), and finally The Hon. William R. (Roger) Mullins,
Administrative Law Judge, National Transportation Safety Board himself.
Two pilots received identical Orders of Suspension after an informal hearing
(meeting) with an attorney from the regional office of the FAA.
This is the actual order issued in the real case upon which this exercise is
based:
U.S. Department
of Transportation
Federal Aviation
Administration
New England
Region
12 New England Executive Park
Burlington, Massachusetts 01803
Tel (617) 238-7046 FAX
(617) 238-7055
94NE050004
April 25, 1995
CERTIFIED MAIL - RETURN RECEIPT REQUESTED
ORDER OF SUSPENSION
On April 7, 1994, you were advised
by mail through a Notice of Proposed Certificate Action of the reasons
why we propose to suspend your Airline Transport Pilot Certificate No.
XXXXXXXX, with airplane multiengine land, airplane single engine land,
airplane single engine sea, and glider aero tow ratings, and Flight
Instructor Certificate No. XXXXXXXX, with airplane single and
multiengine and instrument airplane ratings.
After consideration of all the
evidence presently a part of this proceeding, including an informal
conference held on September 7, 1994, and March 1, 1995, it has been
determined that you are in violation of the Federal Aviation Regulations
hereinafter specified by reason of the following circumstances:
1. You are the holder of Airline
Transport Pilot Certificate No. XXXXXXXX, with airplane multiengine
land, airplane single engine land, airplane single engine sea, and
glider aero tow ratings, and Flight Instructor Certificate No.
XXXXXXXX, with airplane single and multiengine and instrument airplane
ratings.
2. On or about October 26, 1993,
you were pilot in command of a Swearingen SA-227 Metroliner aircraft,
civil registration NXXXXX, owned by another, on XXXXX Flight #XXXX
from Bangor, Maine to Norfolk, Virginia.
3. During said flight, when not
necessary for takeoff or landing, you operated said aircraft in the
area of Prospect, Maine at an altitude which would not have allowed an
emergency landing to be made without undue hazard to persons or
property on the surface in the event of a power unit failure.
4. During said flight, in the area
of Prospect, Maine, you operated said aircraft at an altitude of less
than 500 feet above the surface and less than 500 feet from an
individual and/or structure.
5 . Your operation of an aircraft
in the manner and under the circumstances described above was careless
and/or reckless so as to endanger the life and property of another.
By reason of the foregoing facts and
circumstances, you violated the following Federal Aviation Regulations:
(a) Section 91.119(a), in that,
when not necessary for takeoff or landing, you operated an aircraft at
an altitude which did not allow an emergency landing to be made
without undue hazard to persons or property on the surface in the
event of a power unit failure.
(b) Section 91.119(c), in that you
operated an aircraft at an altitude of less than 500 feet above the
surface and less than 500 feet from a person and/or structure.
(c) Section 91.13(a), in that you
operated an aircraft in a careless and/or reckless manner so as to
endanger the life or property of another.
By reason of the foregoing, the
Administrator has determined that safety in air commerce or air
transportation and the public interest require the suspension of your
Airline Transport Pilot Certificate No. XXXXXXXX, and Flight Instructor
Certificate No. XXXXXXXX.
NOW, THEREFORE, IT IS ORDERED,
pursuant to the authority vested in the Administrator by Section 44709
of Title 49 of the United States Code (originally enacted as section
609(a) of the Federal Aviation Act of 1958) that:
(1) Any pilot certificate now held
by you, including Airline Transport Pilot Certificate No. XXXXXXXX,
and Flight Instructor Certificate No. XXXXXXXX, be and hereby are
suspended for a period of one hundred eighty (180) days.
(2) Said suspensions shall be
effective on May 15, 1995, and shall continue in effect until said
certificates have been suspended for a period of one hundred eighty
(180) days.
(3) You shall surrender said
certificates on or before the effective date of this Order, by mail or
delivery to
Assistant Chief Counsel, New
England Region Federal Aviation
Administration, ANE-7
12 New England Executive Park, Room 401 Burlington, Massachusetts
01803
(4) If you fail to surrender said
certificates on or before the effective date of this Order, said
suspensions shall become effective as of that date and shall continue
in effect until
one hundred eighty (180) days subsequent to your actual surrender
thereof.
(5) If you surrender said
certificates prior to the effective date of this order, the periods of
suspension shall commence upon such surrender and continue in effect
for a period of one hundred eighty (180) days.
(6) If you fail to surrender said
certificates pursuant to the terms of this Order, you may be subject
to civil penalties of up to $1,000 per day.
AMY L. CORBETT Assistant Chief
Counsel
BY:
MELISSA M. DER
Attorney, ANE-7
APPEAL
You may appeal this Order by filing
an original and four copies of a Notice of Appeal with the National
Transportation Safety Board, Office of Judges, Room 5531, 490 L'Enfant
Plaza East, S.W., Washington, DC 20594, telephone (202) 382-0650, FAX
(202) 382-0658. Any Notice of Appeal must be filed within twenty (20)
days of the day this order was served. You must also mail a copy
of your Notice of Appeal to this office. Such an appeal will stay the
effectiveness of this Order. You are hereby advised that if you appeal,
a copy of this Order will be filed with the National Transportation
Safety Board and will be considered the Administrator's Complaint.
CC: Sandra M. McDonough, Esq.
Just The Facts, Please
The factual situation is as follows: Two pilots left Bangor, Maine on a ferry
flight to reposition their company's Swearingen Metro III to Norfolk, Va. It was
a beautiful day and they opted to go VFR, following the Penobscot River to the
Atlantic Ocean, where they climbed to cruise altitude. Mr. Adams called the FAA
some time after the Metro flew by, saying the plane was no more than 160 feet
above his house, where he was on a ladder replacing siding at the time the plane
flew by. FAA Inspector Skycop investigated Mr. Adams' complaint and the FAA
charged the two pilots with flying too low, careless and reckless operation, and
endangering the public if an engine failed. The pilots claimed to have timely
filed ASRS (Aviation Safety Reporting System Reports — so-called NASA
Reports).
The FAA issued an order suspending both pilots' ATP certificates. Attorney
Quixote appealed on behalf of the pilots and the matter went to trial in the
Mock Trial demonstration before ALJ Mullins.
See You In Court!
The FAA Attorney, John Yodice, made an opening statement in which he first
attempted to dispose of the immunity claim of the pilots by virtue of having
filed NASA reports. He pointed out that the timely filing of ASRS reports grants
immunity only in cases where the violation is inadvertent and not deliberate,
and in this case the actions of the pilots was deliberate. He then said he would
prove that the Metro was below the legal minimum by the introduction of chart,
photo and expert testimony evidence.
Attorney Quixote said he would reserve his opening statement until after the
FAA put in its case.
John Yodice, still representing the FAA, called Mr. Sam Adams as his first
witness. A sectional chart, a topographic map of the area, and two photos of Mr.
Adams' house were introduced in evidence and Mr. Adams identified his home and
its location on the charts. John Yodice then attempted to qualify Mr. Adams as
an expert at judging distances by establishing that he is a building contractor
and used to estimating distance in connection with his profession. Mr. Adams
testified that the airplane flew over his home at a height no greater than 160
feet.
Attorney Don Quixote, representing both pilots, cross-examined Mr. Adams. In
the foreground of the picture of the Adams house, just behind the house is a
stand of very tall trees, and in the background, some distance beyond the trees
is a tall tower. Quixote asked the witness over how long a period of time he
observed the airplane and its relationship to the trees and the tower when he
first saw it. Adams was uncertain just where it was when he first observed it,
and he said it was going so fast that he only saw it for a couple of seconds.
Adams was then dismissed and John Yodice called Gary Skycop to the stand.
Skycop testified as to the length of time he had worked as an Aviation Safety
Inspector for the FAA, and to his experience with the Swearingen Metro III
aircraft, most of which knowledge came from reading the aircraft manual. He
described his investigation of Mr. Adams' allegations, his two phone
conversations with Adams and his two personal visits with him. He also described
his examination of the scene, the roof of the Adams home, the location of the
ladder on which Mr. Adams stood when he claimed to see the low-flying airplane.
He testified that he had interviewed Adams' neighbors in an effort to find
another witness to the incident. One of the neighbors thought she might have
heard the airplane go by, but nobody claimed to have seen it except Adams.
Skycop testified that in his opinion at the altitude that Mr. Adams claimed
to observe the airplane it could not have remained in the air in the event of an
engine loss. This contributed to the charge of reckless and careless and made
the flight potentially hazardous to persons and property on the surface.
On cross-examination, Quixote got Skycop to acknowledge that the Metro III is
a particularly noisy airplane, and that his personal knowledge of that specific
make and model aircraft is very limited. He admitted that his "expert"
opinion was based on a reading of the airplane manual. Skycop also testified as
to the location of the radar antenna, and he located the site on the
topographic map and the aeronautical chart. This concluded the FAA's case, and
now it was the turn of the defense to put in its evidence.
The Defense
Both pilots testified that at no time during the flight did they operate at
an altitude below that specified in the regulations. They maintained that the
flight was in full compliance with all the regulations at all times.
The defense expert, Aaron Stead, was then called and properly qualified as an
expert. He testified that under the conditions of weight, etc. that existed on
the day of the flight the airplane was quite capable of maintaining altitude and
even climbing on one engine in the event of a catastrophic engine loss, thus
countering the FAA claim that the flight endangered persons or property on the
surface. He further testified using the topographic map and the location of the
radar antenna that the reply signal would likely be unreliable at the minimum
legal altitude. He also pointed out that since the aircraft is a particularly
loud and noisy machine it was likely that Mr. Adams heard rather than saw it as
it flew over, and because of the noise he assumed that it was at an extremely
low altitude.
The Outcome
Both sides then summarized what they each thought they had proved, and the
judge rendered his decision. He decided in favor of the FAA and affirmed the
penalty imposed by the agency! He chose to rely on the testimony of Skycop
rather than that of Aaron Stead. This outcome, although typical of NTSB
Administrative Law Judges' decisions, is particularly unusual in that the
outcome of the actual case on which this Mock Trial was based had exactly the
opposite outcome. In real life, the good guys really won.
Usual Boilerplate: If you have a comment regarding this column, please
post it here rather than sending it to me by direct email. That way others may benefit
from your input.
Email this article
While
I was at EAA AirVenture '99 at Oshkosh this year, I ran into a friend of mine
named W. Roger Mullins, better known as Judge Mullins. For those of you who may
not remember or know, he's the Administrative Law Judge (ALJ) for the National
Transportation Safety Board (NTSB) who restored Bob Hoover's medical certificate
when the FAA first took it away. The board overruled him and the battle was
joined, but that's another story. While I was standing and chatting with Roger, who
should come along but two more mutual friends of Roger and mine, John Yodice and
his lovely daughter Kathy. Both Judge Mullins and John Yodice made valuable
contributions to my latest book, VIOLATION!
Turns out all three were about to go into one of the Forum Tents and conduct
a mock trial, so what choice did I have but to enter the tent and watch the
proceedings? The case was based on an actual trial resulting from an FAA
enforcement action. All the participants had granted permission to use their
case for demonstration purposes in the form of a mock trial. No one present
(except the attorney who represented the two pilots charged with the violations)
knew the outcome of the actual case and she was not an active participant in the
mock trial. The real trial lasted two full days, but the participants in the
mock trial managed to get all the salient facts in and the judge rendered his
decision at the mock trial in two and one half-hours.
Since my latest book, VIOLATION!,
dealing with the process and the interpretation of the regulations by the ALJs,
the NTSB, and the courts, was released at Oshkosh, I found the presentation very
interesting. There were several unique features in the mock trial. For example,
John Yodice, who is one of the country's foremost lawyers representing
airpersons charged with violating the regulations, played the part of an FAA
attorney prosecuting the two airmen charged here. Kathy Yodice, another
prominent defense attorney in her father's office in Washington, took the role
of the FAA Inspector who investigated the matter and initially brought the
charges. The only two people who played their actual real life roles were Judge Mullins and the defense attorney, who represented the
pilots, although he was not the lawyer in the actual case, nor was Mullins the
actual judge.
The FAA Attorney, John Yodice, made an opening statement in which he first
attempted to dispose of the immunity claim of the pilots by virtue of having
filed NASA reports. He pointed out that the timely filing of ASRS reports grants
immunity only in cases where the violation is inadvertent and not deliberate,
and in this case the actions of the pilots was deliberate. He then said he would
prove that the Metro was below the legal minimum by the introduction of chart,
photo and expert testimony evidence.
