POTUS TFR-busted

Everskyward said:
People here are actually suggesting that you deny you were piloting the airplane when you were?
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No. I would simply not respond. There is no requirement to respond, so I wouldn't.

Do whatever you want but I think there is a lot of paranoia going around and the "don't make the call" advise is just as silly as the advice not to hand your certificate to an inspector to look at. I have done both, more than once with no bad results.
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There IS a requirement to show your certificate when requested, so I would do just that.
 
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AlwaysBlue said:
Update: FAA wants 60 days suspension for my friend the PP and 90 days for CFII. It appears a lawyer has been retained and the informal hearing is next. We have found some NTSB cases that say essentially anytime a CFI is in the airplane as a CFI, he is the PIC, regardless of the 'student's ratings'.
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Best they can do is deal down the suspensions, unless there are seriously mitigating circumstances. Had they filed the NASA forms the FAA might have had an excuse to let them off for good behavior, but not without.

I'm not even certain I would bother with a lawyer, even if it was my livelihood. The FAA lawyers have all the proof they need. I doubt the pilots' lawyer will achieve anything, and might even make things worse. There was a pilot on the board who ran afoul of this and had a multiyear legal battle; he lost big time in the end.
 
my friends recent experience with Presidential TFR busts indicates that there is no dealing down involved. The secret service is involved and the FAA has no latitude for relaxing any punishments.
 
Steve Foley said:
No. I would simply not respond. There is no requirement to respond, so I wouldn't.
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If we are merely talking busting presidential TFRs, that is one thing, but if that is the standard you apply to any possible deviation, it may be worth re-considering.

When ATC gives you a number to call, it is usually to the ATC facility, not the FSDO. While you are certainly within your rights to not call on the grounds that you do not want something you say used against you, that phone call may be the only chance you have of avoiding the issue being referred to the FSDO for action.

Some incidents are required to be reported by the controller to the FAA (like loss of separation). But if the controller is not required to report it and you do call and are cooperative, the controller can let it go without involving the FSDO. No guarantee that will happen, but that phone call may be your one chance to avoid getting the FSDO involved.

If you don't make the call - the controller has no choice but to refer it.

Something to keep in mind.
 
For those who think hearsay evidence can't be used in a FAA investigation, please refer to Order 2150.3B, Chapter 2, paragraph 10(b) "Hearsay Evidence".

I would suggest reading the Order 2150.3B if you are interested in how these investigation and enforcements are handled.
 
steingar said:
Best they can do is deal down the suspensions, unless there are seriously mitigating circumstances.
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Quite possibly correct
Had they filed the NASA forms the FAA might have had an excuse to let them off for good behavior, but not without.
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Don't know if that made any difference, but wouldn't count on it.

I'm not even certain I would bother with a lawyer, even if it was my livelihood. The FAA lawyers have all the proof they need. I doubt the pilots' lawyer will achieve anything, and might even make things worse.
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I don't disagree, but think I'd spend the money on the attorney and let the attorney tell me to proceed without him. I'd hate to look back and wish I'd done/known about something and not pursued it. The attorney may give some advice and then suggest the pilots proceed on their own. In any event, an individual call.
 
On a side note. If the ASRS form is truly anonymous how can you refer back to it if there is an FAA enforcement action?????
 
Rotor&Wing said:
For those who think hearsay evidence can't be used in a FAA investigation, please refer to Order 2150.3B, Chapter 2, paragraph 10(b) "Hearsay Evidence".

I would suggest reading the Order 2150.3B if you are interested in how these investigation and enforcements are handled.
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I stand corrected.

In administrative hearings, such as those before the NTSB or DOT ALJs, hearsay evidence may be used to prove violations.
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AlwaysBlue said:
Has anyone been to an informal hearing? What happens there?
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From Order 2150.3B (As suggested above)

Informal Conferences. After FAA legal counsel issues the notice of proposed action, informal conferences between FAA legal counsel and alleged violators, including their representatives, are offered in civil penalty and certificate action cases, except emergency certificate actions. FAA investigative personnel representing the program office are asked to participate in the informal conference when possible. The purpose of the informal conference is to hear any information the alleged violator wishes to present, and to consider whether this information should affect the proposed action. The proposed sanction is not raised above the amount originally proposed. Any violations charged that are disproved by the information presented at this conference are withdrawn. If the proposed sanction is determined to be excessive, it is reduced. Normally the proposed penalty is not changed unless information is presented that was not taken into consideration when the notice was issued.
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Violations of the SFRA and Presidential TFRs carry "minimum mandatory" suspensions that appear to have been worked out with the Secret Service and the FAA (and believe me, the FAA is on OUR side on this issue).

Violations of the SFRA or FRZ (and maybe presidential TFRs too) CAN be treated as criminal matters if they choose to - says so right in the NOTAM.

I've heard from a lot of folks at Washington and Baltimore FSDOs - nobody likes the situation. Even a minor "clipped the SFRA by .2NM" violation if called to the FAA's attention by the NCRCC gets the full treatment. They've got inspectors from all over working these cases.
 
murphey said:
Same way the TSA does, implied consent.
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Well, travel is a right, but it's not specified how. You see this kind of thing with people that think they don't need a driver's license either.

I hate to say it but, the Constitution of the United States say you can travel, but doesn't specify that you can use a car, plane, et al. The most common means of travel at that time was your two feet.
 
JesseD said:
Well, travel is a right, but it's not specified how. You see this kind of thing with people that think they don't need a driver's license either.

I hate to say it but, the Constitution of the United States say you can travel, but doesn't specify that you can use a car, plane, et al. The most common means of travel at that time was your two feet.
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Actually there's plenty of case law defending the "right" the travel.

Common law preceded the Constitution.
 
It is the FAA's general practice (endorsed by the NTSB ) to hold the instructor accountable for violations which occur during an instructional flight. However, the FAA also holds accountable other crewmembers (required or not) who could/should have been able to prevent the event. So, if the rated trainee didn't get a brief, either, I'd expect the FAA to bag them both. If the trainee were a Student Pilot, s/he'd probably skate.

BTW, I heard at least one plane bust the TFR around State College last week. Too bad they weren't listening on 121.5 as I was, because the first call came before they hit the wall.
 
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Rotor&Wing said:
Certainly your choice to make. But by not cooperating will this pass by the wayside.
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R&W's right -- the FAA has a lot of ways to identify the PIC, and they need only prove it "more likely than not" rather than "beyond reasonable doubt" that Joe Pilot was PIC of N12345 on that day. That's not hard to do if Joe owns, rented, or borrowed the plane. Here are two of the several examples on the NTSB website.

http://www.ntsb.gov/alj/alj/O_n_O/docs/aviation/3831.PDF
http://www.ntsb.gov/alj/alj/O_n_O/docs/aviation/4075.PDF
 
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murphey said:
When dealing with the FAA (or the SS) the laws of incrimination as they relate to criminal investigations do not apply.
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Some of those laws do. Your Fifth Amendment right to remain silent and to refuse to answer questions does exist. However, unlike criminal cases, they don't have to advise you of that. Further, your failure to make the call can be used as evidence of a "non-compliant attitude," and that can lead to a decision not to let you off lightly with an administrative rather than enforcement action. And no, that's not considered using your silence against you.
 
dmccormack said:
Actually there's plenty of case law defending the "right" the travel.

Common law preceded the Constitution.
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I stated there was a right to travel (although I chose to highlight it was enshrined by the founders) and merely pointed out that this doesn't give you a "right" to fly or drive.
 
Steve Foley said:
Again, based on your standard, if the only evidence submitted is a hunch that the FAA goon thinks I did it, that is enough if I don't submit any evidence. That's not how it works.
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In this court, that is exactly how it works. The ALJ may accept unrebutted testimony as proven.

Sure it is. It's an out of court statement, and cannot be cross examined. You would need to FBO manager to testify in court that he saw you sign the aircraft out.
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Again, not in this court. This is administrative law, not criminal, and hearsay is admissible subject to the ALJ's determination of credibility, and they pretty much always consider FAA Inspectors to be credible.
 
JesseD said:
I hate to say it but, the Constitution of the United States say you can travel, but doesn't specify that you can use a car, plane, et al. The most common means of travel at that time was your two feet.
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Where? I don't find the word "travel" anywhere, and the only close is about Congresscritters "going to and returning from the same".
 
Steve Foley said:
My understanding is that even if you do make the call, the controller has no choice but to refer it.
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My experience indicates otherwise. Although in my case it was the controller's supervisor whom overrode the controller and elected not to refer it.
 
steingar said:
Had they filed the NASA forms the FAA might have had an excuse to let them off for good behavior, but not without.
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jnmeade said:
Quite possibly correct Don't know if that made any difference, but wouldn't count on it.
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It can, especially if you demonstrate a complaint attitude and the airspace bust was indeed inadvertent. They don't have to, though.
 
As been mentioned numerous times on this and other forums, there is recognized a pseudo-Constitutional right to travel freely among and within the states, but there is no unlimited right to use whatever method and means one finds either convenient or desirable.
 
AlwaysBlue said:
Update: FAA wants 60 days suspension for my friend the PP and 90 days for CFII. It appears a lawyer has been retained and the informal hearing is next. We have found some NTSB cases that say essentially anytime a CFI is in the airplane as a CFI, he is the PIC, regardless of the 'student's ratings'...
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Yep. Ron will cite the cases.

Thurmond Munson took his CFI for a ride in his new jet. The CFI's estate was sued.

Corey Lisle. Ditto.

One CFI was in the back seat and declared PIC.
 
Ron Levy said:
R&W's right -- the FAA has a lot of ways to identify the PIC, and they need only prove it "more likely than not" rather than "beyond reasonable doubt" that Joe Pilot was PIC of N12345 on that day. That's not hard to do if Joe owns, rented, or borrowed the plane. Here are two of the several examples on the NTSB website.

http://www.ntsb.gov/alj/alj/O_n_O/docs/aviation/3831.PDF
http://www.ntsb.gov/alj/alj/O_n_O/docs/aviation/4075.PDF
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Thanks for those links. I had used the search term "rent", which excluded those two.

Again, not in this court. This is administrative law, not criminal, and hearsay is admissible subject to the ALJ's determination of credibility, and they pretty much always consider FAA Inspectors to be credible.
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Yup. I learned that too today.

Actually, it does. You need to become more familiar with administrative law as opposed to criminal law.
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Ditto

In this court, that is exactly how it works. The ALJ may accept unrebutted testimony as proven.
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Interesting. That appears to be consistent with Andrade, yet Order 2150.3B talks of "more likely than not" standard.

Burden and Standard of Proof. In prosecuting both certificate actions and civil penalty actions, the FAA has the burden of proof, by a preponderance of the reliable, probative, and substantial evidence, to establish all facts necessary to satisfy each element of a statutory or regulatory violation. The preponderance of evidence standard requires that the FAA’s evidence shows that it is more likely than not the respondent committed the violation. When a respondent asserts an affirmative defense at a hearing, the respondent has the burden of proof and must establish the elements of the defense by a preponderance of the reliable, probative, and substantial evidence
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While all this applies to certificate action, could they use this standard of proof to litigate civil or criminal penalties? Lets say I was flying an aircraft sans license. Could they level fines with an administrative level of proof? Couldn't I protest claiming a lack of due process?
 
steingar said:
While all this applies to certificate action, could they use this standard of proof to litigate civil or criminal penalties? Lets say I was flying an aircraft sans license. Could they level fines with an administrative level of proof? Couldn't I protest claiming a lack of due process?
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Civil, yes. Essentially the same burden of proof, but at least you'd be able to get it in front of a real judge, and if >$20 a jury.

Criminal needs to meet the "reasonable doubt" standard, however.
 
Ron Levy said:
I agree. Call, listen, and take notes. Say thanks, and then see what happens next.
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The issues I see with that are:

"Hi, this is Steve Foley, you asked me to call this number" is an admission that I was piloting the aircraft who's pilot was asked to call the number.

"Hi, you asked me to call this number", although not identifying me by name, may allow the person on the other end to identify my voice as the one making the call, hence identifying me as the pilot.

Thanks, but I'll ignore the request and wait for the letter.
 
so call the number but don't say anything lol
 
Steve Foley said:
The issues I see with that are:

"Hi, this is Steve Foley, you asked me to call this number" is an admission that I was piloting the aircraft who's pilot was asked to call the number.

"Hi, you asked me to call this number", although not identifying me by name, may allow the person on the other end to identify my voice as the one making the call, hence identifying me as the pilot.

Thanks, but I'll ignore the request and wait for the letter.
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This is a case where R&W's Dr. House avatar is really appropriate.

When they tell you in the air to call the number, they have it on tape that they told WHOEVER was pic of that tail number to call. If you don't call, the FAA will find it very easy to figure out who was in the airplane (at least to the applicable standard of proof), and now you're not only presumed guilty, you're presumed to be an asshat too. You can therefore probably forget the informal conference route and plan on getting it socked to you.
 
TMetzinger said:
When they tell you in the air to call the number, they have it on tape that they told WHOEVER was pic of that tail number to call. If you don't call, the FAA will find it very easy to figure out who was in the airplane (at least to the applicable standard of proof), and now you're not only presumed guilty, you're presumed to be an asshat too. You can therefore probably forget the informal conference route and plan on getting it socked to you.
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I know someone who has routinely -- (all the time) -- buzzed, done impromptu aerobatics, and the rest and consistently avoided sanction.

We all know it, the FSDO guys know it, and yet the activity continues.
 
TMetzinger said:
This is a case where R&W's Dr. House avatar is really appropriate.

When they tell you in the air to call the number, they have it on tape that they told WHOEVER was pic of that tail number to call. If you don't call, the FAA will find it very easy to figure out who was in the airplane (at least to the applicable standard of proof), and now you're not only presumed guilty, you're presumed to be an asshat too. You can therefore probably forget the informal conference route and plan on getting it socked to you.
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I consider it being the same asshat who lets the police search because "otherwise, you must have something to hide".

The FAA has too many petty tyrants on their payroll for me to simply roll over and hope they're nice to me. I don't trust them, and will not help them nail me.
 
JesseD said:
Well, travel is a right, but it's not specified how. You see this kind of thing with people that think they don't need a driver's license either.

I hate to say it but, the Constitution of the United States say you can travel, but doesn't specify that you can use a car, plane, et al. The most common means of travel at that time was your two feet.
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The Supreme Court has said that restrictions or burdens on the right to travel must be reasonable. In this day and age, telling someone that they couldn't use air travel without due process seems unreasonable to me, but I don't know if the supremes have ever ruled on that point.

As for requiring driver's licenses (or pilot certificates, for that matter), I don't see that as unreasonable, as long as the requirements to get one are reasonable.
 
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