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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
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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.
P e r h a p s t h e m o r a l •o f t h e s t o r y i s t o monitor your instruments at all times, but misread them whenever possible. Please do not tell anyone, especially the FAA, I said that. T&T
Jerry H. Trachtman is a board- certified aviation attorney who has been practicing law since 1976. He is a Piper Meridian owner-pilot and regularly speaks on aviation legal topics at aviation events.
David Clark
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