[I did not type the following.]
What follows is a copy of the decision of the NTSB in a case involving the propriety of a pilot not having formally listed an alternate airport on an IFR flight plan when he was advised by Ground Control, prior to departure, that his primary destination was closed and he thereupon requested a clearance to his originally filed alternate. It has some significance in the context of pop-up IFR clearances, and the SoCal Golf routes. Typographical errors are probably mine, and the paragraph structure is loosely based on the original decision. The text itself should be verbatim.
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Administrator
v.
BRIAN P. GATELY, RESPONDENT
Docket No. SE-5050
Adopted October 16, 1981
3 N.T.S.B. 3968
OPINION AND ORDER
Respondent has filed a pro se appeal from the oral initial decision Administrative Law Judge Thomas W. Reilly issued in this proceeding on June 9, 1981, following evidentiary hearings conducted on that date and on April 2, 1981.* The initial decision affirms an order of the Administrator suspending respondent's pilot certificate, but reduces the suspension period from 90 to 30 days. ** The law judge concluded that the respondent had, as alleged in the suspension order, violated sections 91.38(a)(9) and 91.5(a) of the Federal Aviation Regulations (14 CFR Part 91, FAR) in connection with an instrument flight rules (IFR) flight he made on June 8, 1980. *** The law judge dismissed an allegation that respondent had failed to maintain a continuous radio watch in violation of section 91.125. On appeal respondent contends that the law judge's finding that he violated section 91.83(a)(9) by failing to list an alternate airport in his flight plan is erroneous.
The basis for respondent's contention is his belief that he had been authorized by air traffic control (ATC) to operate pursuant to an abbreviated flight plan and, therefore, he was not required to list an alternate. A brief review of the facts is necessary in order to assess respondent's claim. The record shows that respondent, by telephone, filed an IFR flight plan for a trip from Danbury to Bridgeport, Connecticut. He listed Waterbury-Oxford Airport as an alternate.
Prior to his takeoff, however, respondent, while awaiting his IFR clearance, was advised by Ground Control at Danbury that the airport at Bridgeport was closed due to an air show. When asked his intention in light of this development, respondent advised that he would like to go direct to Waterbury-Oxford. Ground Control processed this request and shortly thereafter issued respondent an IFR clearance to the new destination. Respondent's failure, during or after this exchange, to specify a new alternate airport forms the basis for the section 91.83(a)(9) charge the law judge affirmed.****
Respondent maintains that he had a new alternate in mind when the change in destination was filed, but that he did not give it to ATC because that information was not requested. ***** He asserts in effect that ATC's failure to request that information amounted to an authorization to operate pursuant to an abbreviated flight plan. ****** We find ourselves unable to accept respondent's view of the matter. Although we do not believe that an abbreviated flight plan must be expressly authorized if the facts demonstrate an implied or constructive authorization, we do not think the facts of this case warrant the conclusion that such an authorization was present here. Alternate airport information is only required to be filed when destination weather does not meet the conditions specified in section 91.83(b). Thus, the fact that ATC issues a clearance on a flight plan that does not list an alternate cannot automatically be viewed as an authorization not to file one, for the omission may simply reflect the pilot's judgment that the listing of an alternate was unnecessary given the weather forecasts for his destination.
While we do not accept respondent's contention that he had been authorized not to file an alternate, his violation may be to some degree understandable in light of the unexpected circumstance that forced him to alter his travel plans at the last minute. In view of this factor, and the law judge's dismissal of one of the violation allegations, there appears to be sufficient justification for the reduction in sanction the law judge ordered. The respondent has not challenged the term of suspension the law judge found warranted, and we perceive no basis for disturbing his judgment on the issue. ******* His findings are hereby adopted to the extent they are consistent with this opinion and order.
ACCORDINGLY, IT IS ORDERED THAT:
1. Respondent's appeal is denied;
2. The order of suspension, as modified by the initial decision, is affirmed; and
3. The 30-day suspension of respondent's pilot certificate shall commence within 30 days after service of this order. [FN8]
KING, Chairman, DRIVER, Vice Chairman, McADAMS, GOLDMAN and BURSLEY, Members of the Board, concurred in the above opinion and order.
* An excerpt from the hearing transcript containing the initial decision is attached.
** The Administrator has not filed an appeal, but has filed a reply opposing respondent's appeal.
*** Sections 91.83(a)(9) and 91.5(a) provide as follows:
Section 91.83 Flight plan; information required.
(a) Information required. Unless otherwise authorized by ATC, each person filing an IFR or VFR flight plan shall include in it the following information:
[* * *]
(9) In the case of an IFR flight plan, an alternate airport except as provided in paragraph (b) of this section."
[* * *]
Section 91.5 Preflight action.
Each pilot in command shall, before beginning a flight, familiarize himself with all available information concerning that flight. This information must include:
(a) For a flight under IFR or a flight not in the vicinity of an airport, weather reports and forecasts, fuel requirements, alternatives available if the planned flight cannot be completed, and any known traffic delays of which he has been advised by ATC."
**** The law judge viewed this charge as overlapping the section 91.5(a) charge.
***** The airport respondent contends was to be his new alternate was Stewart Field, Newburgh, New York. We note that when respondent executed a missed approach at Waterbury-Oxford he requested a clearance to Newburgh. The record also demonstrates that Stewart was a legal alternate and that respondent had the necessary fuel reserves.
****** The Airman Information Manual Glossary states that an abbreviated IFR flight plan is an "authorization by ATC requiring pilots to submit only that information needed for the purpose of ATC. It includes only a small portion of the usual IFR flight plan information. In certain instances, this may be only aircraft identification, location, and pilot request. Other information may be requested if needed by ATC for separation/control purposes. It is frequently used by aircraft which are airborne, desire an instrument approach, or by aircraft on the ground which desire a climb to VFR on top."
******* The law judge concluded that the decision on sanction here should be guided by precedent involving various preflight planning - related violations which have typically resulted in suspensions of from 30 to 60 days.
******** For purposes of this order, respondent must physically surrender his certificate to an appropriate representative of the Federal Aviation Administration pursuant to section 61.19(f), FAR.
INITIAL DECISION OF JUDGE THOMAS W. REILLY
This has been an evidentiary proceeding under Section 609 of The Federal Aviation Act of 1958 as amended, 49 U.S.C. 1429, conducted pursuant to the Board's rules of Practice in Air Safety Proceedings, 49 CFR Part 821. The Administrator was represented by Counsel by the respondent appeared pro se. The hearing today (this was the second session) was the result of an appeal of the Administrator's Order of Suspension, issued through his New England Regional Counsel on December 24, 1980, which Order of Suspension became the complaint in this proceeding pursuant to the Board's Rules of Practice. The Order of Suspension sought to suspend the respondent's Airman Certificate, including this Commercial Pilots Certificate, for a period of 90 days because of the facts alleged in the complaint. As in all proceedings under Section 609 of the Act, the Administrator has the burden of proof.
Briefly paraphrasing the complaint, it alleged that on June 8, 1980, Respondent was pilot-in-command of a Cessna 177, otherwise known as Cardinal N2906X on a passenger carrying flight from Danbury Airport to an intended destination of Waterbury-Oxford Airport. It was alleged that at no time prior to commencing the flight from Waterbury- Oxford Airport did he file any airport as a flight plan alternate nor did he familiarize himself with available alternate airports.
The complaint further alleges that after executing a missed approach at Waterbury-Oxford Airport, that the Respondent proceeded to the vicinity of the Igor Sikorsky Memorial Airport at Bridgeport, Connecticut, where he operated the aircraft in controlled airspace for approximately 14 minutes without monitoring the controlling frequency. By virtue of those facts the Administrator charged violations of three F.A.R.'s: Federal Avaition Regulations, Section 91.83A9, for filing an I.F.R. flight plan without listing an alternate.
91.5A, for Commencing an I.F.R. flight without familiarizing himself with alternate airports available, and Section 91.125, for operating an aircraft as the pilot-in-command under I.F.R. in controlled airspace when the Respondent did not maintain a continuous watch on the appropriate frequency. I will not attempt to parapharse the testimony but I will recite who the witnesses were at least.
First witness for the F.A.A. (that was at the April 2nd session) was Inspector Robert F. Sullivan of the F.A.A./G.A.D.O. That is General Aviation District Office in Westfield. He's a Principal Operations Safety Inspector. He investigated Mr. Gately's flight on the day in question and the aircraft in question.
Mr. Leo Spencer, the second witness for the F.A.A., is the Team Supervisor and Flight Data Position in the Danbury F.A.A. Tower.
Third witness for the F.A.A. was Bertrom G. Marien, and he works in the control tower at the Sikorsky Airport, Bridgeport or Stratford, Connecticut. He was a Supervisor in charge of the Tower Cab operation that day. About all that he testified to, it appears, is the fact that the Bridgeport Airport was closed that day due to an airshow, but respondent on the radio kept asking if the airport would open and if he could land there.
The last witness for the Administrator was William L. Haran, The Chief Air Traffic Controller at Bridgeport Sikorsky Airport. The Respondent testified on is own behalf today. He also had his wife to testify to corrorborate his testimony. But when we discussed what she would testify to, we determined that it would be unnecessary for her to testify since she would only repeat or corroroborate what the Respondent had already testified to.
It turns out that from the testimony that the flight on that day, the Cessna Cardinal had four people on board, three of whom were pilots. The Respondent was the pilot-in-command. His wife was on board and she is a pilot. One of the other two passengers was also a pilot. It is pretty clear from the evidence and I am convinced, I think the Respondent fairly well admits that at no time prior to commencing the flight to Waterbury-Oxford did he file any airport as a flight plan alternate. Although he testified that he did check the weather and did familiarize himself with several different airports as being available alternate airports.
I also find that with regard to Paragraph No. 4 in the complaint, which specifically alleges that there were 14 minutes that the Respondent did not monitor the controlling frequency, the evidence establishes pretty clearly to my satisfaction that there was no 14 minute period involved. There were three separate periods: one approximately two minutes long; another approximately three-and-a-half minutes long; and one, something less than five minutes.
It is also clear from the transcript that every time the Respondent left the frequency before he did so he requested permission to do so, and in fact he was delayed in leaving the frequency at the request of Air Traffic Control on at least one or two occasions. And he did stay on the frequency until he was granted permission to leave the frequency.
So I find under those circumstances that Paragraph No. 4 of the complaint has not been proven and therefore F.A.R. Section 91.125, I find has not been proven to have been violated by the Respondent.
However, I find that the other two sections are rather-they're really only two numbered paragraphs in the complaint that allege violations. Paragraphs No. 1 and 2 set forth facts that are really not in dispute. But the two paragraphs alleging violations, three and four are the only ones, as I say, alleging violations. I find that four was not proven, therefore only three is left. And I find that paragraph three was proven. So I find that Respondent did violate F.A.R. Section 91.83(a)(9), failing to file an I.F.R. flight plan with an alternate.
The other F.A.R. Section I think is pretty much overlapping that first section, failing to familiarize yourself with alternate airport information. This is tied in with failing to file an alternate in the first place.
With regard to sanction I had the time between the two sessions of the hearing to do a little research on sanctions that have been approved by the Board, affirmed by the Board, over the years in similar cases, although the pre-flight action charge covers a whole gamut of pre-flight failures. And I find that the sanctions are somewhat lower than what the F.A.A. is looking for in this particular case. For example, in more serious cases, quite obviously I think are the fuel exhaustion cases where you have an on-instrumented rated pilot flying into unexpected I.F.R. conditions and having to be saved by Air Traffic Control and he finally lands safely. I think that is a more blatant violation than what we have here. Most cases have yielded a 30 to 60 day suspension of private pilot certificates. Some few have yielded 90-day suspensions. In the case of Schoonoven 2NTSB page 2174, Board Oder EA-862, we had a V.F.R.- only pilot entering a control zone, and in instrument weather conditions, and contrary to A.T.C.'s refusal of a clearance and instruction to her to remain clear of the control zone. In that case she received a 120-day suspension. That is a 1976 case. So looking at some 20 or 30 cases in the Board's reports, it appears to me that the appropriate sanction in this case would be 30 days instead of 90 days and that's what I order in this particular case.
I do want to make one little comment here for the benefit of the Respondent. I sincerely hope that the Respondent doesn't really believe that the proper, accepted or appropriate way for filing a flight plan is just mentioning a new alternate, a new destination rather, with ground control or with A.T.C. in the air. There are certain ways of doing it and if a pilot really believes that that's the way to file an I.F.R. flight plan then there is some serious question of his instrument competency. Under more blatant circumstances, an instrument competency recheck would be in order. I don't think that's the case here. I think Respondent merely took a strategic legal position for this case only. And the only accepted way of filing a flight plan is through the flight service station, and if you're in the air you have to request specifically the relay of that flight plan to the flight service station, and from the flight service station back through A.T.C. for an A.T.C. clearance or amended clearance.
An I.F.R. flight plan above all flight plans is a very formal document with a lot of requirements, and it is not just done by happening to mention to the ground control frequency, or some controller handling traffic in the air, that you have decided on a new destination, at least this does not fulfill the alternate requirement. But that is no way to conduct I.F.R. operations. It is a violation of the regulations. I don't care how many people get away with it.
After due consideration of all the evidence I find that the Administrator had met his burden of proof and has proven by a clear preponderence of the reliable and credible evidence that his Order of Suspension should be affirmed, but only as reduced to a 30-day suspension of the Respondent's Airman Certificate. And so the Administrator's Order of Suspension is modified to that extent.
I find that safety in air commerce or air transportation and the public interest require affirmation of the Administrator's Order as modified and reduced to a 30-day suspension. The suspension period will begin twelve days after today's date, which would make it the 21st of June, unless the case is further appealed, and I will now read the appeal provisions.
