The NTSB recently upheld the FAA’s suspension of an ATP’s certificate for violating the Washington ADIZ. In Administrator v. Jolly, the FAA alleged that the airman had flown through the Washington ADIZ in violation of FARs 91.13(a) (careless and reckless), 91.139(c)(violating a NOTAM), and 99.7 (failure to comply with ADIZ instructions). The FAA issued an order suspending the ATP’s certificate for 30 days (the standard sanction for a typical ADIZ or TFR violation). The airman appealed and, after a hearing, the ALJ affirmed the FAA’s order of suspension. The airman then appealed the decision to the full Board.
On appeal, one of the defenses reiterated by the airman was that he reasonably relied upon his co-pilot, acting as second in command on the flight, to ensure compliance with the ADIZ NOTAM (e.g. to oversee all communications with ATC and to obtain clearance to enter the ADIZ), and that his reliance absolved him of the violations charged by the FAA. In affirming the ALJ’s rejection of the defense, the Board noted that the doctrine of reasonable reliance is a narrow one and may apply to cases “involving specialized, technical expertise where a flight crew member could not be expected to have the necessary knowledge.” It also observed that the airman asserting the defense must establish that the reliance was reasonable.
The Board then went on to discuss the circumstances that supported the ALJ’s finding that the airman’s reliance was not reasonable. First, the airman knew that he was adjacent to the ADIZ, and knew that he had to be on an IFR flight plan or cleared to enter the ADIZ prior to entering the restricted airspace. However, he did not ensure that he had fulfilled this duty. Next, in spite of the fact that the airman had never operated an aircraft in the area under VFR conditions, he did not question his co-pilot to ensure that they were operating the aircraft in compliance with the requirements of the NOTAM nor did he establish that he did not have the ability to ascertain whether the co-pilot had brought them into compliance with the NOTAM. (The Board felt that the airman was required to question the co-pilot based upon the fact that the airman had never operated an aircraft near the ADIZ under VFR conditions).
Finally, the Board concluded that, under FAR 91.3, the PIC of an aircraft is ultimately responsible for the operation of the aircraft. Interestingly, in a footnote to this conclusion, the Board also noted that “we will defer to the Administrator’s interpretation of her own regulations, unless her interpretation is arbitrary, capricious, or not in accordance with the law.” I am not sure whether the Board was somehow trying to indicate that the FAA could interpret FAR 91.3 to override the reasonable reliance defense and that it would then be required to defer to that interpretation. If so, that would potentially open the door for the FAA to override board precedent on many issues. Such excessive deference to the FAA would certainly change the complexion of enforcement actions.
However, at least as far as this case is concerned, the outcome and the sanction are not a surprise. An airman’s burden of proving the reasonable reliance defense is fairly heavy and, as with all things “reasonable”, the airman’s success will depend upon the facts and circumstances of the case.