CFI is PIC ALWAYS

[Greg Bockelman]

I was listening to Gold Seal Live's episode number 7 of the 25 Zulu show. Aviation Attorney Alan Armstrong was a guest on that episode. He was talking about a case where a pilot was getting checked out with a CFI in operations in the DC ADIZ. I won't get into the details of case discussed, but the comment was made that if a CFI is onboard the airplane, the CFI will ALWAYS be considered the PIC by the FAA. The basis for that statement was a 1981 case called Administrator vs Hamry. Hamry may be misspelled. That is what it sounded like to me on the recording.

Huh? I can't find any information on that case. Any of you legal scholars able to point me to that case so I can see for myself what it says?

BTW, The episode aired on June 26, 2008 and can be downloaded from here:

http://www.goldseallive.com/ShowInfo7.aspx?id=7

and is at about the 1:04:00 point in the broadcast. That is one hour and four minutes into the cast.

 

[poadeleted20]

The case is too old to find on the NTSB web site, which goes back only to mid-92. Beyond that, you'd need Westlaw access or something like it, which I do not have. However, FAA Inspectors I've talked to about this say that while there is often a presumption that the CFI is PIC in a training situation, other factors must be examined before concluding that the CFI was the PIC. In fact, there can be situations in which the CFI cannot be the PIC, e.g., a CFI without a medical certificate instructing in a non-LS airplane. Based on that, I gave Mr. Armstrong a call.

He said that what he really said in the interview was that in the 1981 case of Administrator v. Hamre, the NTSB said they would always consider the instructor to be the PIC on any instructional flight. In the particular case he mentioned (Administrator v. Moeslein), the NTSB quotes Hambre:

See Administrator v. Hamre, 3 NTSB 28, 31 (1977) ("Regardless of who is manipulating the controls of the aircraft during an instructional flight, or what degree of proficiency the student has attained, the flight instructor is always deemed to be the pilot-in-command.");

It seems to me that there is a bit of a disconnect between the NTSB and FAA (and the FAR's) on this subject, but it is indeed enlightening to a this CFI. That said, in Moselein and also in Strobel (which was referenced in Moeslein, and which also references Hamre), there is considerable discussion about whether or not the FAA had sufficiently proved that it was an instructional flight.

In both Moeslein, it seemed pretty clear that Moesein was giving instruction. In Strobel, the issue seemed less clear to me, but the NTSB ultimately concluded that the ALJ who heard the case was justified in concluding that Strobel was giving instruction. It certainly appears, though, that a "duck test" will be applied to make that determination -- see the discussion about this under "Respondent was acting as a flight instructor" in Strobel.

I remember a flight with FlyingRon in his Navion. I got in the right seat and asked him whether he wanted me to be an instructor, a co-pilot, or a passenger. He said, "Passenger." From that point on, I kept my lip zipped as far as his flying was concerned. Had there been an accident or violation, what would have happened given my substantially greater experience and certificate levels? Would the FAA have gone after my ticket? Would Ron's family have gone after my assets? Would either have succeeded? Glad I didn't have to find out.

All in all, it makes me glad I've got both the NAFI CFI insurance policy from Falcon and the CFI version of the AOPA Legal Services Plan.

 

[stingray]

I think this is true as they are held accountable for the safety of the flight. They are not considered pilot at the controls though. My insurance agent said the insurance company only cares who is controling the plane. The FAA only cares that he flight is safe and legal.

Dan

 

[Pilawt]

Here's the Admin. v. Hamre opinion. It includes the following:

While the Board does not now, nor has it in the past, imposed strict liability on flight instructors for the safe outcome of their flights, these instructors must, nevertheless, exhibit and be held to, a considerable degree of responsibility while conducting instructional flights. Respondent, herein, argues that the fact that his student was a certificated pilot should lessen respondent's culpability in this incident. Respondent goes on to imply that since the student was operating the controls of the aircraft during the flight in question, and since the student's misjudgment at least contributed to the cause of the accident, the liability should lie with the student.

Respondent's theory, with respect to the foregoing, is without merit. Regardless of who is manipulating the controls of the aircraft during an instructional flight, or what degree of proficiency the student has attained, the flight instructor is always deemed to be the pilot-in-command. As such, he is the final authority on, and bears the ultimate responsibility for the safe outcome of the flight. A flight instructor's function is to teach. If he permits a flight to be placed in a situation where a mishap is inevitable, or even where the flight is subjected to potential danger, he has, in our opinion, exhibited carelessness within the meaning of FAR section 91.9.​

 

[poadeleted20]

Here's the Admin. v. Hamre opinion.

It's pretty clear that Hamre was instructing the pilot in the left seat -- a PP training for CP. That brings into play the "CFI giving instruction is PIC" finding.

 

[dmccormack]

A flight instructor's function is to teach. If he permits a flight to be placed in a situation where a mishap is inevitable, or even where the flight is subjected to potential danger, he has, in our opinion, exhibited carelessness within the meaning of FAR section 91.9.

This decision imposes an unattainable level of care....

"Potential danger?"

Wouldn't that be anytime the aircraft is "airborne"?

 

[TMetzinger]

I'm with you, Dan. According to this logic, spin training should no longer be required of CFI candidates - aerobatic instruction should be forbidden, and people shouldn't fly anything except simulators (and perhaps not even sims - it hurts when one of those things drops on it's jacks due to a hydraulic failure).

I believe it's reasonable for an instructor to be responsible for the safety of the flight while he is instructing (whether he's acting as PIC or not). The teacher/student or master/apprentice relationship adds burden to the teacher/master and shouldering that burden is one of the ways the teacher/master earns the respect of the student/apprentice.

It's a long way from that position to the position folks are worried about - that a CFI, even when NOT acting as an instructor or crew member, is somehow held liable for problems in the flight. That would be like holding a deadheading Q400 check airman seated in 4B responsible for the Buffalo crash. Or holding a pilot having a gear emergency at another airport responsible for "blocking the frequency"... oh, wait, that's already happened in our legal system, hasn't it?

Flight reviews are another gray area to me. On the one hand it's quite common for the "student" to have much more flight experience in general and in the particular airplane than the instructor does. On the other hand, if the instructor has any doubts about his ability to safely command that airplane as if the pilot getting the review was a primary student, he probably shouldn't give the review. So I think it's reasonable to expect a CFI to be in charge of a flight review as well, as long as only "normal" operations are being reviewed.

Note that my musings here are more in line with what I think is "right", NOT what I think the FAR actually say. I think the NTSB went WAY outside the box here.

 

[Ted]

This decision imposes an unattainable level of care....

"Potential danger?"

Wouldn't that be anytime the aircraft is "airborne"?

Agreed. Seeing as aircraft accidents can happen on the ground, being in the air wouldn't even be a requirement for potential danger as far as I can tell.

 

[poadeleted20]

This decision imposes an unattainable level of care....

"Potential danger?"

Wouldn't that be anytime the aircraft is "airborne"?

Read the cases -- it's pretty clear what it takes to get dinged. In Hamre, the CFI used a 900-foot sod runway to teach short/soft field landings in a C-150 near max gross. In Strobel, the instructor just sat there and did/said nothing while the trainee made a long, fast landing and botched the situation further from there (the instructor's argument that he was just a passenger being obviously disingenuous). In Moeslein, the instructor allowed the trainee to bust the ADIZ not once, but twice. The first bust of the flight might have been salvageable ("transponder failure") but busting back in without calling was unforgivable.

 

[mikea]

As far as the tort courts (not the NTSB/FAA) are concerned, two words, twice:

Thurmond Munson
Corey Lidle(?)

Maybe those are in the "too rich and famous to blame" category?

 

[poadeleted20]

As far as the tort courts (not the NTSB/FAA) are concerned, two words, twice:

Thurmond Munson
Corey Lidle(?)

Maybe those are in the "too rich and famous to blame" category?

Thurman Munson was flying it himself without an instructor in the plane and there was never a court finding against his instructor (settled out of court). The Cory Lidle case remains to be seen as far as tort law (the FAA not usually violating the dead).

 

[mikea]

Thurman Munson was flying it himself without an instructor in the plane and there was never a court finding against his instructor (settled out of court). The Cory Lidle case remains to be seen as far as tort law (the FAA not usually violating the dead).

Oh. I thought Munson was carrying his CFI aboard as a passenger.

Mebbe another lesson for CFIs: Never accept a ride with your old student.

 

[Missa]

After all is said and Dead... who is there to refute that you were giving instruction or just a passenger? A CFI as passenger had a duty to cover their own family by keeping the flight safe even if they are not instructing.

 

[midlifeflyer]

It seems to me that there is a bit of a disconnect between the NTSB and FAA (and the FAR's) on this subject, .

I've never been too concerned with the disconnect.

As you point out, it's obviously a fallacy to say the CFI is always the PIC on an instructional flight, given, foremost, the medical issue.

The reason that I've never been concerned about it is that I think all of the cases, both good and bad, that have discussed the principle, would have ultimately been decided exactly the same way if the principle did not exist.

 

[Dave Siciliano]

After all is said and Dead... who is there to refute that you were giving instruction or just a passenger? A CFI as passenger had a duty to cover their own family by keeping the flight safe even if they are not instructing.

I'm sorry, I disagree and have had several instances in my plane where someone rode along that was a CFI. They were not giving instruction and weren't being asked to. If I own the plane, I may not want a CFI to give instruction. Now, it would be stupid to not listen to a CFI or anyone that pointed out a problem, but to say the CFI is responsible doesn't work in someone else's plane that doesn't want instruction. I have more time in the P-Baron than any CFI with which I have flown. Maybe the CFI should be careful who he rides with, but I've found myself on more than a few occasions pointing things out to CFIs and showing them how my plane should be flown.

Ron has suggested in the past that if this is the case, we should leave a writing behind stating this to protect the CFI from liability and I'm willing to do that. I just really haven't had a problem flying with CFIs that aren't giving instruction, the problem is the second guessing that may occur even if the CFI and I are in agreement.

Just because someone is a flight instructor should not mean they should be ever vigilant; they may be flying with someone that is just as skilled or more skilled in that plane. I do much more instrument flight than several CFIs I've flown with; on trips in my plane, I'm way ahead of them, especially on routes I've flown many times before. Doesn't mean I don't listen if they have a good comment, but to say they are in charge just ignores relative skills, experiences and circumstances like ownership. If A CFI was concerned, leaving a simple written agreement behind sounds smart. A good crew brief is also important if the CFI is in front. Recently, the CFI along for the ride was in back and could not have been of much help as far as controlling the aircraft if something went wrong. Read about the accidents with two CFIs flying <g>

Best,

Dave

 

[poadeleted20]

Oh. I thought Munson was carrying his CFI aboard as a passenger.

Sorry for the confusion -- Munson's old multiengine instructor was in the right seat, but there was never any question about who was PIC, and it wasn't the old instructor, even though "[h]e noticed that the landing gear had not been lowered so he said, 'I don't think you want to land this airplane with the gear still up.'" The report goes on to say "The passenger was not rated in turbojet aircraft and had not flown previously in the Cessna Citation model aircraft. He was not trained or qualified to act as the pilot's instructor for the accident flight. According to his statement, he was a friend of the pilot and was aboard the aircraft solely as an observer." The NTSB accepted this entirely. See http://www.ntsb.gov/publictn/1980/AAR8002.pdf for details.

 

[dmccormack]

Read the cases -- it's pretty clear what it takes to get dinged. In Hamre, the CFI used a 900-foot sod runway to teach short/soft field landings in a C-150 near max gross. In Strobel, the instructor just sat there and did/said nothing while the trainee made a long, fast landing and botched the situation further from there (the instructor's argument that he was just a passenger being obviously disingenuous). In Moeslein, the instructor allowed the trainee to bust the ADIZ not once, but twice. The first bust of the flight might have been salvageable ("transponder failure") but busting back in without calling was unforgivable.

...and the case law implies a higher standard of care than imposed by "potential danger."

 

[KennyFlys]

Mebbe another lesson for CFIs: Never accept a ride with your old student.

On the recommendation of a FIRC instructor, never treat them as students... They're clients. They never stop being clients if taken care of properly. They may start out as students but you want them returning for future flight reviews and further training. That makes them forever a potential client.

Even if becoming good friends with them, they're still clients. If flying with a client for friendly sharing of a ride it would be a good idea to have that written agreement left behind. It should specify training flights would always be indicated in the scheduling of an aircraft.

As an aside, our school's policy is we're to always keep tabs on that "former student" or a current post-PPC student just off on a simple rental flight.

 

[Henning]

The case is too old to find on the NTSB web site, which goes back only to mid-92. Beyond that, you'd need Westlaw access or something like it, which I do not have. However, FAA Inspectors I've talked to about this say that while there is often a presumption that the CFI is PIC in a training situation, other factors must be examined before concluding that the CFI was the PIC. In fact, there can be situations in which the CFI cannot be the PIC, e.g., a CFI without a medical certificate instructing in a non-LS airplane. Based on that, I gave Mr. Armstrong a call.

He said that what he really said in the interview was that in the 1981 case of Administrator v. Hamre, the NTSB said they would always consider the instructor to be the PIC on any instructional flight. In the particular case he mentioned (Administrator v. Moeslein), the NTSB quotes Hambre:


It seems to me that there is a bit of a disconnect between the NTSB and FAA (and the FAR's) on this subject, but it is indeed enlightening to a this CFI. That said, in Moselein and also in Strobel (which was referenced in Moeslein, and which also references Hamre), there is considerable discussion about whether or not the FAA had sufficiently proved that it was an instructional flight.

In both Moeslein, it seemed pretty clear that Moesein was giving instruction. In Strobel, the issue seemed less clear to me, but the NTSB ultimately concluded that the ALJ who heard the case was justified in concluding that Strobel was giving instruction. It certainly appears, though, that a "duck test" will be applied to make that determination -- see the discussion about this under "Respondent was acting as a flight instructor" in Strobel.

I remember a flight with FlyingRon in his Navion. I got in the right seat and asked him whether he wanted me to be an instructor, a co-pilot, or a passenger. He said, "Passenger." From that point on, I kept my lip zipped as far as his flying was concerned. Had there been an accident or violation, what would have happened given my substantially greater experience and certificate levels? Would the FAA have gone after my ticket? Would Ron's family have gone after my assets? Would either have succeeded? Glad I didn't have to find out.

All in all, it makes me glad I've got both the NAFI CFI insurance policy from Falcon and the CFI version of the AOPA Legal Services Plan.

It appears then that my statement on the red board regarding a CFI requiring at least a third class medical is not wholly unfounded. If it goes to the NTSB, it sounds like they'll burn you without one.

 

[Henning]

I'm sorry, I disagree and have had several instances in my plane where someone rode along that was a CFI. They were not giving instruction and weren't being asked to. If I own the plane, I may not want a CFI to give instruction. Now, it would be stupid to not listen to a CFI or anyone that pointed out a problem, but to say the CFI is responsible doesn't work in someone else's plane that doesn't want instruction. I have more time in the P-Baron than any CFI with which I have flown. Maybe the CFI should be careful who he rides with, but I've found myself on more than a few occasions pointing things out to CFIs and showing them how my plane should be flown.

Ron has suggested in the past that if this is the case, we should leave a writing behind stating this to protect the CFI from liability and I'm willing to do that. I just really haven't had a problem flying with CFIs that aren't giving instruction, the problem is the second guessing that may occur even if the CFI and I are in agreement.

Just because someone is a flight instructor should not mean they should be ever vigilant; they may be flying with someone that is just as skilled or more skilled in that plane. I do much more instrument flight than several CFIs I've flown with; on trips in my plane, I'm way ahead of them, especially on routes I've flown many times before. Doesn't mean I don't listen if they have a good comment, but to say they are in charge just ignores relative skills, experiences and circumstances like ownership. If A CFI was concerned, leaving a simple written agreement behind sounds smart. A good crew brief is also important if the CFI is in front. Recently, the CFI along for the ride was in back and could not have been of much help as far as controlling the aircraft if something went wrong. Read about the accidents with two CFIs flying <g>

Best,

Dave

I run into much the same situation on boats. If I go for a joy ride with someone on their boat and they have an accident where injuries or substantial costs and damages, especially environmental occur, I am the one who ends up in front of the judge because I hold a Masters license and they don't, even though none is required for the operation of the vessel.

 

[jmaynard]

It appears then that my statement on the red board regarding a CFI requiring at least a third class medical is not wholly unfounded. If it goes to the NTSB, it sounds like they'll burn you without one.

I'm not going to get into the general case...just note that a CFI (either -SP or otherwise) instructing in an LSA does not need a medical, and so that exception does not apply.

 

[midlifeflyer]

It appears then that my statement on the red board regarding a CFI requiring at least a third class medical is not wholly unfounded. If it goes to the NTSB, it sounds like they'll burn you without one.

They won't burn you for not having one. They will burn you for what you did or did not do in your capacity as an instructor, whether or not they consider you PIC.

 

[gismo]

It appears then that my statement on the red board regarding a CFI requiring at least a third class medical is not wholly unfounded. If it goes to the NTSB, it sounds like they'll burn you without one.

If I understand you to mean that a CFI must have a valid medical cert to be legal as a passenger or even when providing instruction I'm certain you're wrong. Just because a CFI isn't legally acting PIC doesn't mean he cannot be held responsible for an implied duty. The medical cert is only required when the instructee isn't acting as the required PIC.

 

[4CornerFlyer]

I always make sure to down a beer or two before going up with a pilot friend. That way I can say I was unable to be PIC or act as an instructor.*

Jon


* Ron and others: Yes, that's a joke.

 

[poadeleted20]

It appears then that my statement on the red board regarding a CFI requiring at least a third class medical is not wholly unfounded. If it goes to the NTSB, it sounds like they'll burn you without one.

I can't see why -- the FAA gets to make and interpret the regs, and they have clearly stated that a Third Class is required to instruct only if the CFI is acting as a required pilot crewmember in an operation requiring a medical certificate.

 

[mikea]

Sorry for the confusion -- Munson's old multiengine instructor was in the right seat, but there was never any question about who was PIC, and it wasn't the old instructor, even though "[h]e noticed that the landing gear had not been lowered so he said, 'I don't think you want to land this airplane with the gear still up.'" The report goes on to say "The passenger was not rated in turbojet aircraft and had not flown previously in the Cessna Citation model aircraft. He was not trained or qualified to act as the pilot's instructor for the accident flight. According to his statement, he was a friend of the pilot and was aboard the aircraft solely as an observer." The NTSB accepted this entirely. See http://www.ntsb.gov/publictn/1980/AAR8002.pdf for details.

From the hearsay clues I could find by Googling, Munson's widow sued Cessna for letting a low time pilot BUY and fly A CITATION which is allegedly why makers now have a training requirement and they include factory training with the purchase.

I remember that they also named that CFI in the suit (as in the "CFI is PIC always") and I thought he was held liable for a few bucks. Mebbe one of our law types can find the case, but as Ron says it was settled out of court. The claims represented will be on the filing.

What is amazing is that it didn't help that the CFI was alive and breathing and able to state what happened while the pilot wasn't - and the CFI "lost."

 

[sheldon957]

I remember one case where there were 3 pilots on board. The CFI was in the back seat asleep. Pilots 1 & 2 were in the left & right seats. The CFI was held responsible for the other 2 violating airspace.

 

[poadeleted20]

I remember one case where there were 3 pilots on board. The CFI was in the back seat asleep. Pilots 1 & 2 were in the left & right seats. The CFI was held responsible for the other 2 violating airspace.

Got a reference? I'd be very interested in seeing that enforcement action.

 

[gismo]

I remember one case where there were 3 pilots on board. The CFI was in the back seat asleep. Pilots 1 & 2 were in the left & right seats. The CFI was held responsible for the other 2 violating airspace.

I've heard the same story more than once, but I've never seen anything like it in print. I suspect it's a fabrication.

 

[flyingcheesehead]

I've heard the same story more than once, but I've never seen anything like it in print. I suspect it's a fabrication.

I read one very much like that, only it wasn't airspace, it was a crash where at least one of the other two was killed.

I'm pretty sure it was on AvWeb, somewhere in the 2003-2005 timeframe. Unfortunately, I've been unable to find it via Googling. I do remember some other details though, I'll have a look through the NTSB database and see if I can't at least find the accident.

 

[dmccormack]

Got a reference? I'd be very interested in seeing that enforcement action.

Looking..IIRC it was in a Yodice column in the AOPA mag....

 

[poadeleted20]

Looking..IIRC it was in a Yodice column in the AOPA mag....

Let us know when you find it. That would settle an old question.

 

[midlifeflyer]

Got a reference? I'd be very interested in seeing that enforcement action.

Me too. I've been looking for for this particular piece of fiction for years.

 

[Everskyward]

After all is said and Dead... who is there to refute that you were giving instruction or just a passenger? A CFI as passenger had a duty to cover their own family by keeping the flight safe even if they are not instructing.

I don't know about a "duty", that's more like self-preservation isn't it? I have an unexpired CFI and I have no problem getting into an airplane as a passenger which I've done on a number of occasions. Am I going to let someone crash the airplane if I can prevent it just because I'm not PIC? Of course not. I'd be more concerned about the accident than any kind of legal or enforcement action.

Years ago I was involved in a nosegear up incident (mechanical) during an IPC. The FAA didn't even ask for the CFI's name let alone ask to meet or talk with her. I was clearly the PIC because she had never set foot in that type of airplane before that day and didn't know much about it.

 

[poadeleted20]

After all is said and Dead... who is there to refute that you were giving instruction or just a passenger?

If everyone is dead, obviously nobody can say who was doing what. However, in an enforcement action (assuming everyone's alive to tell their side of the story), there may be some "he said/she said" fingerpointing, as in the Strobel case, above, where the rated pilot in the left seat said he was receiving instruction, and where the CFI in the right seat said he was just a passenger. Then the FAA and NTSB apply the "duck test" to decide whose story is most credible as to whether the CFI was actually instructing or not. Note that in the cases discussed above, the issue hinges on the question of whether or not the CFI is giving instruction, not just the certificate in his/her pocket.

 

[gismo]

I have held a CFI certificate for close to 30 years and knowing what I have witnessed, in todays climate, I won't be put my name in a logbook or record as giving instruction for love nor money. That said, I will only sign my name while acting within the scope and authority of my current position as I am afforded some personal indemnity by law. Still, I am fully aware my actions can and will be subject to legal/professional scrutiny every time I do affix my signature to something I approve, accept or authorize.

I'd be interested in hearing more about what you've witnessed in regards to CFI liability. Care to elaborate a bit?

Am I paranoid of a lawsuit? Not in the least, but my eyes are open to the possibility.

Your words are at least slightly in conflict here. Then again sometimes there's a thin line between paranoia and
awareness.

Just like an accident, nobody plans on one happening to them, but they do seem to happen with some regularity and when you least expect it. By knowing the ground you stand on whether it be quick sand or bedrock should influence your actions and ultimately your ability to defend your decision making process in the event of an accident and subsequent legal scrutiny.

As a CFI, there are serious responsibilities and consequences when you pen "I Certify......." followed by your name and certificate number in some ones logbook. That is one additional responsibility I am unwilling to take on again at this time in my career outside of my regular work hours. Others freely accept this responsibility as I once did, which is OK, I simply choose not too any longer. I don't think I am right, wrong or alone by electing to take my present position. As a final gut check, I think all CFI's should think about the ramifications, good or bad, every time they get the pen out, I know I did.

I was under the impression that for the most part, CFI's were only liable to the extent that they did or didn't provide the prescribed training required and that proper documentation of said training is a substantial defense. How does your experience differ from that?

 

[KennyFlys]

I was under the impression that for the most part, CFI's were only liable to the extent that they did or didn't provide the prescribed training required and that proper documentation of said training is a substantial defense. How does your experience differ from that?

I keep a single sheet of paper documenting every flight as well as notes in the computer and the student's log book. There always needs to be more than just the student's log.

 

[poadeleted20]

The issue of civil liability for your actions as an instructor was well researched and presented in another thread here. In particular, read the legal research paper linked by Dan, to which you can go directly here. Unless you're actually in the plane (or otherwise directly supervising) when it happens, or you didn't play by the rules, the likelihood of an instructor being found liable for what happens to a former trainee does not seem particularly great.

OTOH, the FAA will eat your lunch (or at least your CFI ticket) on an enforcement action if they catch you not playing by their rules, and the records of that happening are easy to find on the NTSB Opinions & Orders web site. However, it really isn't that hard to play by the FAA's rules as long as you take the time to learn them and have a certain amount of integrity which you aren't willing to compromise just to do someone a favor or take a convenient short-cut.

 

[Everskyward]

Then again sometimes there's a thin line between paranoia and
awareness.

I think the thing is that everyone needs to make their own decision about this. I'm aware that I can get sued for things I do in an airplane. I can also get sued for things I might do in a car. I choose not to worry about it but people have different levels of risk tolerance. This can be based on their personality and also their prior life experiences.

 

[David Moeslein]

It's always good to see Ron pop up with his opinion. Now, from the source: What occurred in MOESLEIN (and what is still ongoing at the Court of Special Appeals level) is that the FAA is chasing a high-time pilot's ticket based on an infraction that has not been pursued nor proven by the FAA. The issue got derailed on that of "who is PIC" (this was a legal maneuver taken by the attorney) and it was never clearly determined that an ADIZ violation occurred; that was almost assumed. Based on the record, Ron can't help but make the same flawed assumption that the FAA made and yet fails to question or acknowledge why - an instructor based at, active at, and knowledgeable of the airport in which the alleged violation(s) occurred could possibly let this happen? The opposing case to this is Administrator v. BLUM where it was concluded that the CFI was not PIC and yet was more clearly giving instruction than in MOESLEIN. Unfortunately, the case as it has been preserved, does not address the real issues including deposition testimony from the pilot that he was PIC and that the flight was nothing more than a $100 hamburger run with a look at some commercial maneuvers occurring outside of the ADIZ. There are a lot of issues involved in this case which do not surface in the transcripts so, in all fairness to Ron, what he wrote is accurate.

Bottom line to CFIs is never ever get in an airplane unless you have every intention of providing instruction AND when you sign a logbook, only sign for that portion of the flight during which you provided instruction! IF you are requested to call an ATC facility - insure that the PIC makes the call and don't offer to do it because you "may be familiar with matters of this sort" [fatal error on my part].

Anybody who would like to know the details of this case, please let me know and I will provide you a copy of the ASRS report --- in there, you will know the FACTS. NOTE: The FAA/NTSB disallowed the relief provided by filing the ASRS because they felt that the infraction was not "inadvertent". One has to ask, "Does a pilot intentionally violate an ADIZ in which he was very familiar not once but two times?" If the government prevails in court, the premise and value of the ASRS will be seriously diminished. Let AOPA know that they need to get involved with this!

In conclusion, back to the text of Ron's post: The instructor DID NOT allow the "trainee" (an instrument rated private pilot ASEL) to bust the ADIZ - at all, not once, not twice. The outbound flight was squawking properly (at least by every indication in the airplane) and, if not, complied with the NOTAM in effect at the time to exit the ADIZ. The inbound flight was filed with FSS and a squawk code was assigned by ATC - again, all indications in the airplane that the transponder was functioning). Radio contact with ATC was maintained throughout both flights - so, where is the problem? Herein lies the depth of the case . . .

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In Moeslein, the instructor allowed the trainee to bust the ADIZ not once, but twice. The first bust of the flight might have been salvageable ("transponder failure") but busting back in without calling was unforgivable.