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:"No Defects" Article in May 2013 AOPA Pilot Magazine

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On page 24 of the AOPA Pilot Magazine is an article by John Yodice talking about minor damage - a scratch (no more than a scratch - no other damage) to paint on a wingtip, in which the NTSB has taken the position in that flying the airplane without an A&P inspection, and repair or determination, grounds the aircraft. To fly the airplane, according to the FAA and NTSB, make the aircraft unairworthy (Far 91.7) because; "he took off when the aircraft was in an unknown condition"  .

 

The article is very much worth reading, and more than a bit disconcerting.  It didn't matter that when the aircraft was inspected by an A & P at his home field (and the paint touched up), it was determined that the scratch did not affect the airworthiness of the aircraft.

 

The FAA always seems to have a "gotcha" when they want to dump on you. Hard to follow their logic for a mere paint scratch, but I suggest you read the article for yourself.

 

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As is usually the case with these sorts of things, there is more to the story.  I too read the Yodice article, and then I also read the NTSB decision and part of the law judge's factual findings.  Yodice simplified the facts to make the FAA look more unreasonable than it actually was, IMHO.  This pilot was uncooperative after he ran into the jet, refused several times to provide his personal information, and had to be stopped by a golf cart driven in front of his plane.  He took off in a hurry afterwards.  There was abundant evidence that he did not carefully inspect the damage on his airplane before taking off.  For the airport to get the FAA after this guy he must have made a complete ass of himself.

 

So, it appears once again that "bad facts make bad law." 

 

Read the whole thing and make up your own mind:  http://www.ntsb.gov/legal/o_n_o/docs/Aviation/5646.pdf

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The sanctioned pilot appears to be an attorney.  He apparently has a character flaw or two.

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I read the two decisions in the NTSB link, and unless I missed something, there has been no sanction issued, or rather, the Ad Law Judge issued a sanction but it was not upheld on appeal. It was remanded to the Ad Law Judge for further proceedings. As I read the appellate decision I got the distinct impression that the Ad Law Judge committed error. The legal standard was whether the pilot knew or should have known that the aircraft was not in an airworthy condition. The Ad Law Judge intentionally stretched that to "knew or should have known that the aircraft might not be in an airworthy condition, and that is simply the wrong standard. There was no evidence that the aircraft was in fact unairworthy. The correct standard applies when the aircraft is not airworthy and the pilot knew or should have known that. So the case was remanded to the Ad Law Judge to make a determination, and to provide specific factual findings, that the aircraft was in fact not airworthy.

Fairly clear that the Ad Law Judge went off campus with that decision.

So nobody got "gotchaed" not at this point in the proceedings anyway. There is more to come.

Bad judges make bad law, and in this case the Ad Law Judge clearly failed to follow the law.

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I read the two decisions in the NTSB link, and unless I missed something, there has been no sanction issued, or rather, the Ad Law Judge issued a sanction but it was not upheld on appeal. It was remanded to the Ad Law Judge for further proceedings. As I read the appellate decision I got the distinct impression that the Ad Law Judge committed error. The legal standard was whether the pilot knew or should have known that the aircraft was not in an airworthy condition. The Ad Law Judge intentionally stretched that to "knew or should have known that the aircraft might not be in an airworthy condition, and that is simply the wrong standard. There was no evidence that the aircraft was in fact unairworthy. The correct standard applies when the aircraft is not airworthy and the pilot knew or should have known that. So the case was remanded to the Ad Law Judge to make a determination, and to provide specific factual findings, that the aircraft was in fact not airworthy.

Fairly clear that the Ad Law Judge went off campus with that decision.

So nobody got "gotchaed" not at this point in the proceedings anyway. There is more to come.

Bad judges make bad law, and in this case the Ad Law Judge clearly failed to follow the law.

Their whole argument against the pilot was that the aircraft "might not be in airworthy condition or conform to its Type Design".  Turns out it was. However, the pilot in command is the person who returns the aircraft to service and is responsible for airworthiness, the complete definition is the two terms above.  The pilot inspected the airplane for 30 minutes and noticed no defects, then flew. He should have had a better lawyer.

 

I knew a guy who got ramp checked while flying a Cessna 210. They gave him some crap about cracks eminating from the plastic wingtip which were stop drilled. They argued that the airplane was unairworthy because the cracks may propagate under the paint beyond the stop drills, which is a weak argument, and they tagged it. Well, he was an A&P.  First thing he did was walk over to their rented Bonanza and find a couple smoking rivets, and pointed out their machine was unairworthy.  Satisfied they were grounded, he filled out the card "Inspected wingtip, no defects noted, aircraft returned to service", handed it back to them, and took off, left them sitting in Topeka with their Bonanza.  He never had trouble from those guys again.

 

Can't wait to get my A&P, and run across an inspector in that situation.

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I knew a guy who got ramp checked while flying a Cessna 210. They gave him some crap about cracks eminating from the plastic wingtip which were stop drilled. They argued that the airplane was unairworthy because the cracks may propagate under the paint beyond the stop drills, which is a weak argument, and they tagged it. Well, he was an A&P.  First thing he did was walk over to their rented Bonanza and find a couple smoking rivets, and pointed out their machine was unairworthy.  Satisfied they were grounded, he filled out the card "Inspected wingtip, no defects noted, aircraft returned to service", handed it back to them, and took off, left them sitting in Topeka with their Bonanza.  He never had trouble from those guys again.

 

Can't wait to get my A&P, and run across an inspector in that situation.

 

OMG, that would be hilarious.  

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Remanded to the same Law Judge who found the pilot and mechanic not to be credible. Hmmm, wonder how that will turn out?

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I admit to not having a large amount of experience appearing before administrative law judges, but from the experience I have had, I have concluded that for the most part, they are rubber stamps for whatever administrative agency is bringing the action. The ones I have appeared before have taken the position that "the agency has nothing to gain by bringing this action" and is therefore credible. On the other hand, the respondent has a vested interest in not having the court rule against him, and is therefore biased and not credible.

Then when an appeal is taken, the next court takes the findings of the administrative judge regarding credibility as true (since they were sitting there listening and watching the witnesses). This puts a terrible burden on those of us running afoul of agency regulations.

I am well aware that cops don't generally go out of their way to arrest innocent people, and most often they defendant actually committed a crime. But when he goes to court, he gets the "presumption of innocence" and has at least a fair chance. Not so for pilots.

What we probably need to take away from this is that "being right" doesn't mean you will win, and it makes a lot of sense to avoid antagonizing the FAA. Discretion being the better part of valor, and all that stuff.

Rant off; sorry about that.

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By the way, can the people doing a ramp check deem your aircraft to be unairworthy?

I thought I read in a recent AOPA pilot that they cannot.

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As is usually the case with these sorts of things, there is more to the story.  I too read the Yodice article, and then I also read the NTSB decision and part of the law judge's factual findings.  Yodice simplified the facts to make the FAA look more unreasonable than it actually was, IMHO.  This pilot was uncooperative after he ran into the jet, refused several times to provide his personal information, and had to be stopped by a golf cart driven in front of his plane.  He took off in a hurry afterwards.  There was abundant evidence that he did not carefully inspect the damage on his airplane before taking off.  For the airport to get the FAA after this guy he must have made a complete ass of himself.

 

So, it appears once again that "bad facts make bad law." 

 

Read the whole thing and make up your own mind:  http://www.ntsb.gov/legal/o_n_o/docs/Aviation/5646.pdf

Thanks for the other side of the story. Looks as if he was trying to leave the scene of an accident regardless of who was at fault. Hey my car is fine I'm leaving!

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The sanctioned pilot appears to be an attorney.  He apparently has a character flaw, or two:

 

As such, it may be a good idea for us to not mention this any further for risk of him coming after someone for defamation.

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Well, a couple of thoughts. First, it is not correct that cops generally don't go out of their way to arrest innocent people. There are cops who do, and there are many more cops who, when they get on the witness stand, don't remember anything about the event that lead to a citation or arrest, but they have been prepared by the prosecutor and they know the script, they say what they are supposed to say not what actually happened. Those "cops" who do these things, are relying on being able to hide in among the honest cops and therefore be believed.

Second, one cannot assume that the facts as stated in an Ad Law Judge's opinion, are the actual facts, or even what the evidence was. Most Judges are analytical about the facts, they state what was presented by both sides and apply the law. It is the Judge who writes the opinion, and if a Judge wants to "cook" a case or justify a particular result, then don't expect all of the facts to be laid out accurately. Like the "cop" who hides among honest cops, this type of Judge hides among honest judges, expecting to be believed because everyone thinks Judges are honest.

We do not know "the rest of the story" here, what is in the opinion may be accurate or it may not.

Third, the issue here is not whether the pilot deserved some kind of punishment, it is whether the FAA and its Ad Law Judges has any jurisdiction over what appears to have been a parking lot accident with at most minor damage. If there is a reg. that covers it, fine. Making the regs. cover it just because the Ad Law Judge thought he should do something, is not fine.

Fourth, it is certainly a concern that the case goes back to the Ad Law Judge who screwed it up in the first place. However, in this instance, what the NTSB is saying, is that there must have been an actual airworthiness issue with the aircraft. The Ad Law Judge went to the lengths he did to stretch the law for the exact reason that he could not find an airworthiness issue. Having tried and failed once, I don't think there is much concern he will find one the second time around. A paint scratch is not an airworthiness issue.

Last, and by far the most important point about this decision, is whether the law interpreting the regulations really ought to be that a pilot is reckless and careless if he knew or should have known that there might be an airworthiness issue with the aircraft. "Might be"? There always, every single time you fly, "might be" an airworthiness issue. This Judge stretched the law far beyond its bounds. And the other important point that follows from that is whether the jurisdiction of the FAA should be boundless, to find a way to violate a pilot any time they wish, or whether it should fall within the bounds of some rational set of laws that the FAA and government is bound to follow.

I don't want anyone to think that I have an agenda when it comes to the FAA, in fact just the opposite, but this was a bad decision by a very overreaching Judge, which we do not need.

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Of course there are multiple views of any given situation (well probed in the Japanese movie Rashomon), and I am not so naive  as to take the AOPA article at face value, but I am terribly concerned that both the FAA and NTSB have taken the position that the Administrative Law Judge could "stretch" the non-airworthiness for an aircraft to include a paint scratch, and then deem the aircraft as unairworthy because "he took off with an unknown condition".  Sorry, but I see this is a "gotcha", and we should not have to have this sort of vindictiveness from the FAA and NTSB.  The pilot may well have acted poorly in that circumstance, and I like to think I would have been less confrontational (but still wary), but how do you fight against "unknown conditions"?.  Not being a perfect pilot, just human, I think it is hard enough to make any lengthy flight without some suspicion that I might have inadvertently broken some FAR - nothing overt, of course, and I would hate to have that Administrative Law judge, or another like him, decide what, if anything, I did wrong.  Yesterday, I cleaned out some old files, and found about a dozen or more old NASA Safety Reporting forms I had filed over the thirty years or so I have been a FAA certificated pilot,  (never had a license in my military days).  None of them were ever invoked, but I think the NASA reports are a great safety net, and I encourage their use. 

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That's some cynical stuff, Jlunseth.  I will hire you the next time I get arrested.   ;)

 

No question that setups happen, but I don't see that here.  I guess the bottom line for me is that if the guy had been cooperative at the airport and had his airplane examined by a mechanic before he took off with passengers, we wouldn't be reading about him.    

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That's some cynical stuff, Jlunseth.  I will hire you the next time I get arrested.   ;)

 

No question that setups happen, but I don't see that here.  I guess the bottom line for me is that if the guy had been cooperative at the airport and had his airplane examined by a mechanic before he took off with passengers, we wouldn't be reading about him.    

 

 

There is no requirement for a pilot to be well-behaved and cooperative in order for the aircraft to be airworthy. Although better behavior can be expected of any one, the point remains the aircraft was found un-airworthy by "magic" - that's the issue

 

Sure he may be guilty of a hit and run kind of thing if he hit another aircraft and made a run for it - but the aircraft airworthiness is an orthogonal issue.

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I must agree. My attitude should not affect the airworthiness of my airplane. And since when, as PIC, can I not make the final call to the airworthiness of my plane? Aren't I required by the FARs to do so for every flight?

 

This guy apparently behaved poorly, but does bad manners create an airworthiness issue? How about the chips in your leading edges from bug impacts or flying through rain? Do they make the airplane not airworthy, or as in this case, in a state of unknown airworthiness because each chip has not been inspected by an A&P/IA? Had he been less confrontational, would the "unknown airworthiness" of his plane been acceptable?

 

Looks to me like he upset people, and they were out to get him a ny way they could. Taxiing on a taxiway, towards an active runway, with tower taxi clearance and an IFR flight plan filed, and the FAA is uncertain if he was operating his aircraft on the airport for the purposes of air navigation? Really? What does it take to "prove" that you are in a movement area for the purpose of air navigation?

 

A bad case of FAA and Judge Advocate overreaching . . . . I understand their desire to punish the reported bad manners, but to do so like this means that all of us could face similar charges on every flight. What happens when I taxi for a VFR departure from an untowered field? Am I operating on the airport for the purpose of air navigation? Or if something happens, should I not have been operating my airplane there at all??? And is the jet hanging out beyond the line acceptable? In [vehicle] traffic court, there would be some shared responsibility for blocking the taxiway, but in this case it was all hung on the man following the approved yellow line and none on the person hanging into the traffic right-of-way.

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That's some cynical stuff, Jlunseth.  I will hire you the next time I get arrested.   ;)

 

No question that setups happen, but I don't see that here.  I guess the bottom line for me is that if the guy had been cooperative at the airport and had his airplane examined by a mechanic before he took off with passengers, we wouldn't be reading about him.

Yes, I guess so, sorry. I have tried noncriminal lawsuits for a long time, seen it all.

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Sorry for the soapbox. The biggest problem with our society is the lack of accountability and the willingness to sue everyone for everything regardless of whether you are in the right or wrong. I shall say no more...

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It is about power. Once a cop said to me that the worst thing someone could do was commit "stupidity in my presence" we were at a social party and he defined that as not bowing to his authority. Too many see THEMSELVES as the power. Any one who questions that authority gets squashed. Too many people in positions of authority are there for the sake of power. Cowards behind a badge. Cowards in black robes. Cowards clear up to POTUS himself.

Any time any one says "I am" the power instead of I have some authority they are already over the line.

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I too read this article with great interest as I have had a similar event happen with my Mooney.  I got a call from the FBO letting me know that while putting the plane away they rubbed a wingtip (actually the plastic around the strobe) and there was a blemish with zero damage.  In this case I just happened to have my A&P go over and look at it before I flew it again but that was unintentional.  I would not have given a second thought to flying the airplane after they notified me of the blemish and would have been in the same boat.

 

On the face of it this seems absurd to the maximum but ever since the death of common sense in this country this type of situation happens all too often.  Wouldn't it be nice if the FAA, apparently legally correct, could have shown some judgment in this case.

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