Flying Through the Turbulent Aftermath of an Unauthorized TFR or DC ADIZ Incursion
By Gregory J. Reigel
© June, 2009 All rights reserved.
As many of you already know, the Washington D.C. Air Defense Identification Zone ("DC ADIZ") has become permanent and corresponding training has become mandatory. Additionally, temporary flight restrictions ("TFRs") continue to "pop-up" throughout the country. Against this backdrop, a recent opinion by the National Transportation Safety Board provides a good opportunity to discuss what you can expect if the FAA catches you straying into the DC ADIZ or a TFR without authorization.
In Administrator v. Corrao
, the FAA charged the airman with entering the DC ADIZ without complying with NOTAM FDC 7/0206 (which prohibits entry into the DC ADIZ unless the aircraft operator has fulfilled certain requirements, including establishing
two-way radio communications with air traffic control (ATC), obtaining a discrete transponder code, and filing and activating an approved flight plan prior to entering the DC ADIZ).
The FAA's order alleged that the airman's unauthorized entry violated sections 91.139(c)3
(failure to comply with the authorizations, terms, and conditions prescribed in a NOTAM), 99.7
(requiring compliance with FAA special security instructions when operating in DC ADIZ) and 91.13(a)
(careless and reckless) of the Federal Aviation Regulations
("FARs"). The FAA's order also imposed a 30-day suspension of the airman's private pilot certificate. (These violations are the "standard" violations alleged by the FAA in connection with an unauthorized TFR or DC ADIZ incursion and the 30-day suspension is also the sanction most commonly sought, except when aggravating circumstances are involved.)
The airman appealed the FAA's order to the National Transportation Safety Board
("NTSB"). In his answer to the FAA's order, the airman admitted all of the factual allegations and only denied that he had violated FAR 91.13(a). He also stated that, "[t]he special procedures required pursuant to FDC NOTAM 7/0206 are unique, complex, and
ambiguous," and the proposed 30-day suspension was "disproportionate to the alleged violation." However, the airman's answer did not include any statements regarding whether he had filed a report pursuant to the Aviation Safety Reporting Program ("ASRP") in connection with the incident. (You can read one of my articles on the ASRP here
When it received the airman's answer, the FAA filed a motion for summary judgment arguing that no genuine issues of material fact remained. Based upon the airman's admissions, the FAA argued that the undisputed facts proved all of the alleged violations and the 30-day suspension was the lowest sanction available. The airman then filed a response to the motion and an amended answer. The airman contended that the Boardís
doctrine precluded a finding that respondent had violated FAR 91.13(a). He also stated that respondent had reported his entry into the DC ADIZ pursuant to the ASRP was thus eligible for a waiver of sanction. Finally, the airman contended that his statement that the requirements of FDC NOTAM 7/0206 were "unique, complex, and ambiguous" constituted an affirmative defense.
The NTSB administrative law judge ("ALJ") granted the FAA's motion. The ALJ determined that the airman's admissions, along with the FAA's imposition of the lowest possible sanction, supported the entry of summary judgment against the airman. The airman then appealed the ALJ's decision to the full Board and reiterated the arguments he had asserted before the ALJ.
With respect to the airman's Lindstam
argument, the Board noted that the FAA does not need to allege or prove specific acts of carelessness to support a violation of FAR 91.13(a). Rather, the FAA may use circumstantial evidence to establish a prima facie
case by creating a reasonable inference that the event would not have occurred but for respondentís carelessness. Once the reasonable inference has been established, the burden then shifts to the airman to prove an alternative explanation for the event that casts reasonable doubt on, or overcomes the inference of, the FAA's claim of carelessness.
In analyzing the airman's argument regarding the Lindstam
doctrine, the Board initially observed that the FAA's allegation of an FAR 91.13(a) violation was a "residual" violation because it was based upon other operational violations rather than being asserted as an independent act of carelessness or recklessness. It then confirmed its own precedent that a charge of carelessness or recklessness under FAR 91.13(a) is proven when an operational violation has been charged and proven. Additionally, since the operational violations were proven with the airman's admissions, the Board concluded that the Lindstam
doctrine did not apply.
Next, the Board addressed the airman's argument that he was eligible for a waiver of sanction under the ASRP. The Board observed that an allegation that an airman complied with the ASRP is an affirmative defense that must be included in an answer to the FAA's complaint. If it is not included, the Board will typically refuse to consider the defense if it is asserted in future pleadings. In this case, the airman did not include any indication that he may be eligible for a waiver of sanction under the ASRP until he submitted his reply to the FAA's summary judgment motion. As a result, the Board affirmed the ALJ's grant of summary judgment on the issue of sanction.
What can we learn from this case, other than the obvious conclusion that it is best to avoid unauthorized entry into the DC ADIZ or a TFR? First, keep in mind that most TFR/DC ADIZ violation cases do not end up in front of an NTSB ALJ. What usually happens, and certainly will happen if you are represented by an aviation attorney, which I highly recommend, when you receive the FAA's notice of proposed certificate action alleging a TFR or DC ADIZ violation is that you ask for an informal conference and request the releasable portions of the FAA's enforcement investigation report ("EIR").
The EIR will provide you with the factual information upon which the FAA is basing its claims (e.g. recordings of ATC communications, radar data, statements from law enforcement etc.). Analysis of the EIR will reveal the strength of the FAA's case and whether any potential defenses may be available. It is usually possible to use the EIR information to negotiate a resolution of the claims with the FAA attorney at the informal conference including, if you timely filed your ASRP report, a waiver of sanction.
Next, if you are not able to resolve the case at the informal conference and you appeal the case to the NTSB, be careful about the admissions you make in your answer to the FAA's complaint. If you have legitimate disputes with the factual allegations, you should definitely deny the disputed allegations. However, to the extent that you do not have an argument with the FAA's evidence, you may need to admit the undisputed allegations. Of course, if you find yourself admitting all of the factual allegations, as happened in this case, you need to really ask yourself why you are appealing the order, unless sanction is the issue.
Also, make sure you include all available affirmative defenses in your answer. If you fail to include a defense, you will likely have lost the ability to raise that defense at a later time. Use it or lose it, as they say.
The DC ADIZ and TFRs are with us for the long haul. Knowing the rules and making sure you are familiar with all available information prior to your flight will, hopefully, prevent you from finding yourself on the wrong end of an enforcement action. However, if you do find yourself accused of violating the DC ADIZ or a TFR, you will find yourself involved in a process that may be quite unfamiliar to you. Before you attempt to go it alone, keep in mind that the services of an aviation attorney can help you preserve your rights.
As always, fly safe and fly smart.