Legally Speaking: Unintended Consequences

Legally Speaking: Unintended Consequences

Avoid turning an inadvertent act into enforcement action.

You have received your clearance for an IFR departure from your home airport, which includes “climb and maintain 5,000 feet.” The tower clears you for takeoff, and adds, “Amend your initial altitude, climb and maintain 1,500 feet.”

You take off, and the tower tells you to contact departure. You contact departure, and the first thing the controller says is, “Radar contact, say altitude.” You look at your altimeter and see you are approaching 3,000 feet. You tell the controller, “Sorry, do you want me to descend?” He replies with a heading change to avoid a traffic conflict, and clears you to 5,000 feet. He tells you, “Possible pilot deviation call (555) 555-5555 when you land.”

You are familiar with the Aviation Safety Reporting Program and decide you need to file a NASA report, because that will get you off the hook for an altitude bust if an enforcement action is initiated against you – or will it?

FAA Advisory Circular 00-46E describes the Aviation Safety Reporting Program (ASRP), and talks about what is well known among pilots as a “NASA report.” Under the ASRP, if there is a violation of FAA regulations and the pilot proves that within 10 days after the violation (or the date the pilot became aware or should have been aware of the violation) he or she delivered or mailed a written report to NASA (the “NASA report”), a finding of a violation can be made but there will be no certificate suspension imposed.

The only catch is that there are exceptions. The violation cannot involve a criminal offense, an accident, or an action under 49 USC 44709 (a “709 re-examination”), which discloses a lack of qualification or competency. In addition, there cannot have been a prior enforcement action resulting in a finding of a violation of regulations within the previous five years. Finally, and what seems to result in the most FAA challenges to using a NASA report (using it is not the same as filing it), the violation must be “inadvertent and not deliberate.”

You properly completed your NASA report and filed it on time, and you are hoping that if an enforcement action is brought against you and you decide to use it, the FAA will accept it and agree to a waiver of sanction. Your altitude bust was certainly inadvertent and not deliberate, right?

Not so fast. According to the FAA, “inadvertent” and “not deliberate” are two entirely different things, and a violation must be both to qualify for an ASRP waiver of sanctions. According to the FAA, even if a violation is “not deliberate,” it can still fail to qualify for immunity because it is not “inadvertent.” Are you still with me?

In coming to this conclusion, the FAA usually hangs its hat on a 1982 case decided by the Ninth Circuit Court of Appeals. In that case, a scheduled airline flight unknowingly landed at the wrong airport. The FAA brought an enforcement action against the captain and issued an order suspending his ATP certificate for 60 days. The captain had timely filed a NASA report and claimed he was entitled to a waiver of the suspension because landing at the wrong airport was “inadvertent and not deliberate.”

The FAA disagreed. An evidentiary hearing was held before an NTSB administrative law judge (the first level of appeal of an FAA order of suspension) and the 60-day suspension was upheld. On the next level of appeal to the full NTSB, the 60-day suspension was again upheld. The NTSB decision was then appealed to the Ninth Circuit Court of Appeals. In its decision, the Court of Appeals acknowledged that the FAA had agreed landing at the wrong airport was not deliberate. The captain argued that “not deliberate” and “inadvertent” mean the same thing, but the Court of Appeals disagreed and stated:

“It is evident an inadvertent act is one that is not the result of a purposeful choice. Thus, 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.”

The Court of Appeals concluded that since the captain purposely chose not to examine his charts to verify the location of the airport, and purposely chose not to use available navigation aids to positively identify the airport, landing at the wrong airport was the result of purposeful choices and therefore was not inadvertent.

While the FAA would agree your altitude bust was not deliberate, since you did not monitor your altitude in the climb the FAA can say it was not inadvertent, and a NASA report will not give you immunity from a suspension if an enforcement action is brought against you.

Perhaps the moral of the story is to monitor your instruments at all times, but misread them whenever possible. Please do not tell anyone, especially the FAA, I said that.

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