In a recent civil penalty case, an administrative law judge (“ALJ”) rejected the FAA’s attempt to limit the ability of an air carrier to substitute an instrument proficiency check in lieu of a general proficiency check that must otherwise be passed by line pilots under FAR 135.295. The case of In the Matter of Darby Aviation arose when the FAA issued an order assessing civil penalty against the FAR Part 135 air carrier alleging that a line pilot was not properly qualified to operate certain flights because the check airman who administered the line pilot’s general proficiency check under FAR 135.293 had not himself completed a general proficiency check within the previous year. Although the check airman had completed an instrument proficiency check under FAR 135.297 within the previous year, which substituted for the general proficiency test under FAR 135.295(c), the FAA argued that the substitution was not proper because the instrument proficiency check did not cover all of the subjects that are required to be tested in a general proficiency check.
In response to the air carrier’s motion to dismiss, the ALJ agreed with the air carrier. First, the ALJ observed that none of the language in FAR 135.295(c) “suggests that in order to use the instrument proficiency check as a substitute for the general proficiency check, the pilot must have been tested on those subjects which, although irrelevant to an instrument proficiency check, would be subjects tested during a general proficiency check.”
Second, the ALJ determined that the FAA’s analysis, as a practical matter, would read paragraph (c) out of the regulation. If the FAA were correct, the ALJ surmised, allowing those who pass the instrument proficiency test to substitute it for the general proficiency would serve no purpose because the instrument proficiency check would include all of the elements of the general proficiency check. Under this scenario, a pilot would then simply take both tests. In rejecting the FAA’s arguments, the ALJ concluded that the very purpose of FAR 135.295(c) is to avoid such unnecessary multiple testing.
Finally, the ALJ sympathized with the FAA’s position to the extent that it is concerned with “the possibility of licensing a pilot who is capable of passing the instrument proficiency test but who cannot successfully complete the general proficiency check.” However, he then went on to note that if the FAA wanted a line pilot to complete a general proficiency check on an annual basis, regardless of whether the pilot also completes an instrument proficiency check, then it would have to change the language of the regulation. He then state that “[t]hat is something that I cannot do, nor is it something the FAA can accomplish through the medium of prosecuting a civil penalty claim.”
This appears to be a back-door attempt by the FAA to “interpret” a regulation in a way that is more beneficial for it in the litigation. Although “due deference” is typically granted to an agency, that deference isn’t without limits. In light of the clear language in FAR 135.295(c), it may not be too hard to convince a court that the FAA’s position isn’t entitled to deference because it is arbitrary, capricious and inconsistent with the clear language of the regulation. It will be interesting to see whether the FAA appeals the decision which, strange as it may sound, would initially be decided by the Administrator and later, if it makes it that far, by the U.S. Court of Appeals.