The NTSB recently determined that an airman’s incursion into the Washington, D.C. Air Defense Identification Zone (“D.C. ADIZ”) was not inadvertent and, as a result, the airman was not eligible for waiver of sanction under the Aviation Safety Reporting Program (“ASRP”). In Adminstrator v. Schwarzmann, the FAA alleged that the airman violated FARs 91.139(c) (compliance with airspace NOTAM), 91.13(a) (careless and reckless) and 99.7 (compliance with ADIZ security instructions) when he operated within the D.C. ADIZ while squawking a transponder code of 1200 (applicable NOTAMs require a discrete transponder code other than 1200 must be used during operations within or egress from the D.C. ADIZ). The FAA sought to suspend the airman’s commercial pilot certificate for 30 days as a sanction for the alleged violations.
After a hearing before an NTSB administrative law judge (“ALJ”), the ALJ determined that the FAA had proved the violations as alleged. Although the airman had asserted an affirmative defense that his transponder malfunctioned and transmitted the wrong code, the ALJ decided that the FAA had rebutted this affirmative defense. The ALJ deferred to the FAA’s choice of sanction and ordered the 30-day suspension of the airman’s certificate. However, the airman then appealed the ALJ’s decision to the full NTSB.
On appeal, the airman argued that the FAA was at fault for his incursion because it failed to provide a means for the airman to verify that his transponder was transmitting the correct code before taking off; that the ADIZ is a restricted area that includes aircraft sitting on the ground, and that such an inclusive definition amounts to entrapment; that because ATC cleared him for takeoff, and that he believed his transponder was transmitting the correct code he was therefore neither careless nor reckless; that he was eligible for a waiver of sanction under the ASRP; and, finally, that the FAA’s actions violated his rights to equal protection and due process.
The Board rejected all of the airman’s arguments. Initially, the Board observed that the airman did not cite any regulations or authority indicating that the FAA was responsible for verifying a code that a pilot is transmitting before the pilot takes off. Rather, it found that case law and the FARs provide “that pilots are the responsible parties for ensuring that their aircraft contain equipment that functions appropriately, so as to comply with all regulatory requirements.”
Next, the Board held that the airman’s entrapment argument was without merit since FAR 91.139(c) provides that the special requirements apply to pilots in “airspace.” It went on to conclude that the finding of an operational violation under FAR 91.139(c) was per se careless and reckless in violation of FAR 91.13(a). The Board further rejected the airman’s constitutional arguments since the airman received due process when the ALJ allowed him the opportunity to present and cross-examine witnesses and, with respect to equal protection, the Board does not have authority to consider issues of selective prosecution by the FAA.
With respect to the airman’s argument that he was entitled to waiver of sanction under the ASRP, the Board initially noted that it imposes a strict standard with regard to the ASRP’s requirements and, in order to be eligible, the violation at issue must be inadvertent and not deliberate (in addition to satisfying the other program requirements). It further observed that an airman’s “exercise of poor judgment, even when the [airman] alleges that he or she believed that they chose the safest action, may amount to a deliberate action under the ASRP.”
The Board reiterated the deliberate/inadvertent distinction from an earlier case that “[a]person who turns suddenly and spills a cup of coffee has acted inadvertently. On the other hand, a person who places a coffee cup precariously on the edge of a table has engaged in purposeful behavior. Even though the person may not deliberately intend the coffee to spill, the conduct is not inadvertent because it involves a purposeful choice between two acts——placing the cup on the edge of the table or balancing it so that it will not spill. Likewise, a pilot acts inadvertently when he flies at an incorrect altitude because he misreads his instruments. But his actions are not inadvertent if he engages in the same conduct because he chooses not to consult his instruments to verify his altitude.”
It then concluded that the airman’s conduct was not inadvertent. According to the Board, the airman “did not consider obtaining a ferry permit, contacting the local FSDO, or cancelling his flight in order to ensure that his transponder was functioning” and “[t]o the extent that respondent believed that his transponder may have mechanical problems, he should not have operated the aircraft with the transponder in the ADIZ until he was certain that his transponder was operating properly.” Add to this the fact that the FAA had rebutted the airman’s affirmative defense and the Board affirmed the ALJ’s refusal to waive sanction under the ASRP.
This explanation of the deliberate/inadvertent distinction recited by the Board is troubling. It seems to me to be, to some extent, semantics and, in practice, will be dictated by a subjective determination of which “act” is the focus of the inquiry. I would expect the FAA’s focus to be on an act that lends itself to a characterization of “deliberate”, although the FAA should still need to establish a direct connection or causal link between the “act” and the “violation”. Unfortunately, this opens the door to more litigation regarding this issue and reduces some of the incentive for participation in the ASRP, which certainly isn’t in the interests of air safety. Not a good thing.