by Bob Worthington
Published in Midwest Flyer – June/July 2020 issue
Piloting an aircraft is fraught with rules and regulations, which can result in the pilot being the subject of an investigation. In 40 years of flying, I have been in this position three times. Two investigations only took a week or so to conclude, while one consumed over six months. Usually the first inkling that there may be an investigation is via a personal visit or phone call, which may be followed by an official letter notifying you of a pending investigation into an incident (or accident) involving the operation of your aircraft in a manner which may be contrary to Federal Aviation Regulations (FARs). Usually this letter will be mailed a few days after the cited incident.
I am not an attorney, so I am not providing legal advice. Rather, I am sharing with you my response to each of the investigations I was subjected to because of something that happened when I was piloting my plane.
The first incident involved an unscheduled, off-airport landing (some call this a crash); the second incident was an illegal flight incursion into the Washington, DC Air Defense Identification Zone (ADIZ), and the third incident resulted when, upon landing my retractable-gear airplane, the nose gear collapsed.
For the first and last incident, shortly after the incident (an hour or so), I was approached by an FAA and National Transportation Safety Board (NTSB) investigator in person, while the second incident began with the Air Traffic Controller (ATC) giving me a phone number to call at my next landing. Three days after the phone call, I received a letter from the FAA. In all three incidents, I was asked to provide a written account of what happened.
The investigation has several purposes: 1) Did the pilot do something wrong or was he/she the victim of an accident? 2) Are there any safety lessons to be learned or safety issues which need addressing? 3) What happened and how can it be prevented from occurring again? This all begins with what transpired and your written description of what you believed happened.
At this point, I will cover what I did and why, but first I must provide a caveat. My suggestions are based on the premise that you, as the pilot-in-command, did nothing to incur or aggravate the incident, or you did everything possible to avoid or negate the incident. In short, I am saying that you did nothing wrong or bad that resulted in the incident, and sometimes this may be almost impossible to prove. Therefore, here is what I did.
First, since everyone who flies an airplane is regulated by the FARs, and sometimes one FAR may dictate one rule to follow, and another FAR may state exactly the opposite, I believe that legal assistance and advice should always be sought. One way to make this happen (if you are rich enough) is to have an aviation attorney on retainer. Since this is beyond the pocketbooks of most of us general aviation pilots, I highly recommend signing up for AOPA’s “Legal Services Plan.” This service is very affordable and provides excellent legal assistance.
Flying with AOPA’s “Legal Services Plan” means it is readily accessible when or if needed. Another resource which is obtainable and should be used is the “Aviation Safety Reporting System.” If something happens while you are piloting an aircraft and you believe a safety issue is involved, immediately file an Aviation Safety Report with the National Aeronautics and Space Administration (NASA), the third-party recipient of these reports. Usually the report must be filed within 10 days of the incident or when the issue is first noticed. For more information, refer to FAA Aviation Circular 00-46E.
Another resource I have found very helpful are fellow pilots who have had experience in this matter or in dealing with the FAA. I contacted these friends when I was being investigated, explained what happened, and asked them how best to proceed. We discussed the incidents and what choices I may have in responding to the investigations. Just talking with my friends made me more cognizant of what the FAA wanted or needed to know and understand regarding each incident. In my case, this review by friends provided me with clarity as to what to do and what not to do, and how best to proceed.
In every incident I was involved in, I believed that I had done nothing wrong… that I was not the person who initiated the cause of the incidents, but rather, I was a “victim” of what happened. This means that in the investigation, I will have to provide proof or evidence that I did everything possible to avoid the incident, but was unable to do so.
Now comes the time when you need to write your version of what happened. I do believe that at this point, I have an advantage most pilots do not. As an aviation writer, I am used to employing words to explain or convince readers to understand issues about aviation. Therefore, I can utilize these skills to expertly describe what happened and try to convince the investigator that what ensued was not because of any fault of mine. If you were the cause of the incident because what you did was wrong, then you probably really need legal help from the get-go.
My first suggestion is to go to the FARs and find out what the rules and regulations state. Determine what guidelines define the parameters of the incident; what policies cover what is allowed, authorized or required (or perhaps prohibited); and specifically, how these directives relate to or control the incident being investigated. Understanding the pertinent regulations governing what happened allows you to better understand the legal ramifications of what happened (and what the instigator will focus on).
If the regulations clearly state you cannot do what you did, then you should know why it was necessary to ignore this regulation. Understanding the law helps to better describe what you did and why.
For example, you are flying over an abandoned airport and on both ends of the runway is a bright yellow “X.” This means you cannot land there and if you do, then you are subject to an FAA investigation as to why you violated the law. The fact that you did not know what the “X” meant, and you just decided to land, is probably not a good defense. On the other hand, if you landed because of engine failure, this is allowed by another FAR. Remember I said that often the FARs may contradict each other. In this case the “X” means you cannot land there, while another FAR may allow the pilot to ignore the “X” in an emergency.
Here is the advice I received from both my friends and the AOPA legal team regarding how to write my report of what happened. Stick to the facts, describe what happened, but do not place blame or state your belief that someone else screwed up. Stick to just describing what happened, what you did, and why.
In my ADIZ incursion, it was suggested that at the end of my report, I indicate my aviation background as an FAA Safety Counselor (today a FAASTeam Representative), all the safety seminars I have created and taught, and my background as a senior officer and search and rescue pilot in the Civil Air Patrol, as well as my ratings, certificates, and flight hours. This was to emphasize my extensive safe experience in aviation and as a pilot.
Two incidents (the crash and collapsed nose gear) did not require help in my reports, but the airspace incursion did. I sent my draft of the report to the AOPA legal team, suggestions were made and were returned to me, and I made edits as necessary. In all three incidents, I was honest and reported everything that happened. Some aviation writers have suggested that a pilot being investigated not talk to an investigator without legal representation present, reflecting on the FAA issues encountered by airshow performer, Bob Hoover. In my case, I knew what I did was not the cause of the incidents, so I did not fear any reprisals, explaining everything.
In the first incident, my engine quit on climb out, somewhat close to the ground. My wife and I walked away from the accident, but our airplane was totaled. After the crash, the FAA/NTSB investigator arrived and shook my hand saying, “Congratulations! Usually when an engine fails this close to the ground, I do not have a pilot to talk to.” He said before coming to the crash site, he listened to the tapes of my calls to departure control explaining my problem and that I was going to land in a cotton field. He learned I was not panicked, and calmly described what had happened (I flew the airplane until it stopped on the ground). That night I wrote my version of what happened (I had no idea of why the engine quit), and the next day handed it to the investigator.
A few days later, the investigator called me to explain that the engine quit due to a dubious design of the engine and what I did was right because no one was killed. He said my report aided his investigation into why the engine quit.
The second incident involved me entering the DC ADIZ without a discrete transponder code. My explanation was that air traffic control (ATC) would not give me the transponder numbers. I was on an IFR flight plan and when ATC refused to give me my clearance, I obtained it, in the air (at that time I was VFR), from a ground Flight Service Station (FSS). They did not have the code for me and told me ATC had it. But ATC would not give it to me. I was flying my flight plan knowing that a transponder code was not a required part of an IFR clearance, and once I received the clearance, it had to be flown until I received an amendment or I needed to avoid hitting something. I entered the ADIZ just before receiving the code and I was talking to ATC and they did not tell me to turn to avoid the ADIZ.
This investigation was very complex and impossible for me to prove what I did. The ATC was the U.S. Navy and as soon as they got wind of the investigation, they destroyed the radio communication tapes. The FSS was operated by Lockheed Martin and they refused to share their tapes because they were a private enterprise.
The FAA radar tapes showed me entering the ADIZ, squawking the VFR code, which was a violation of the FARs. But my written report (and numerous telephone conversations with the FAA investigator) convinced him that my version of what happened was probably correct. While tapes were absent, the investigator did speak with ATC and FSS personnel who I had talked to, and their verbal reports verified what I had claimed. The final FAA report stated that nothing ever happened, therefore no violation!
The third incident involved a collapsed nose gear on rollout after landing. Again, after the incident, I met with the FAA investigator and the question was, did I accidently move the landing gear switch to the “up” position after landing. I explained (verbally and in writing) that was almost impossible to do. To move the gear up or down, the handle must first be pulled out and then positioned up or down. This procedure requires a conscious effort to reposition the gear handle and an innocent passage of the hand could not move it. My written report covered this and why the gear collapsed was never determined (yet there were other reports of this happening elsewhere). Again, the FAA determined that I did not in any way contribute to the failed nose gear.
In all three incidents and subsequent investigations, I am convinced that by being honest, being able to provide in writing my version of what happened and expert legal advice (in the case of the incursion), all served me well. In all three incidents, the investigations concluded that I was not guilty of any wrongdoing!
EDITOR’S NOTE: Pilot, Viet Nam veteran and former university professor, Bob Worthington of Las Cruces, New Mexico, is the author of “Under Fire with ARVN Infantry” (https://mcfarlandbooks.com/product/Under-Fire-with-ARVN-Infantry/), and producer of the 2019 film “Combat Advisor in Vietnam” (www.borderlandsmedia.com). Facebook: Bob Worthington Writer (www.BobWorthingtonWriter.com).
DISCLAIMER: The information contained in this column is the expressed opinion of the author only, and readers are advised to seek the advice of their personal flight instructor, attorney and others, and refer to the Federal Aviation Regulations, FAA Aeronautical Information Manual and instructional materials before attempting any procedures or following any advice discussed herein.