Greg Reigel's Aero Legal Services

Proving "Inadvertence" To Support An ASRP Waiver Of Sanction: Not As Easy As You Might Think

By Gregory J. Reigel

© August, 2011 All rights reserved.

In another blow to the Aviation Safety Reporting System ("ASRP") and the benefit it was intended to provide airman, the NTSB affirmed an administrative law judge's ("ALJ") finding that an airman's conduct, although not deliberate, was not inadvertent as required by the program.

The Program

Under the ASRP, as explained in Advisory Circular 00-46D if an airman files an ASRP form (also somewhat inappropriately referred to as the "NASA form" since NASA is only the administrator of the ASRP) within 10 days of an incident, any sanction that may be imposed in a subsequent enforcement action can be waived. The program does not affect an actual finding of violation against the airman. Rather, it simply provides a waiver of any sanction the FAA might seek to impose for the violation.

The sanction waiver will be available provided that (1) the violation was inadvertent and not deliberate; (2) the violation did not involve a criminal offense, accident, or action found at 49 U.S.C. § 44709; (3) the person has not been found in any prior FAA enforcement action to have committed a regulatory violation for the past 5 years; and (4) the conduct of the airman giving rise to the violation did not exhibit incompetence or lack of qualification.

A Case Lacking Proof Of Inadvertence

In Administrator v. Ricotta, the FAA alleged that the airman busted an altitude clearance in violation of FARs 91.123(a) (unauthorized deviation from an ATC clearance) and 91.13(a) (careless and reckless). When the FAA issued an order suspending the airman's airline transport certificate for 45 days, the airman appealed and asserted that any deviation was the result of equipment failure. He also raised his ASRP filing as an affirmative defense, entitling him to waiver of any sanction that may be imposed.

After a hearing, the ALJ concluded that the airman violated the regulations as charged. The ALJ determined that the FAA had successfully rebutted the airman's contention that a failure of his equipment prevented him from complying with the ATC instruction to climb to and maintain 11,000 feet altitude MSL. He also found that, although the airman filed a timely ASRP report, he did not carry the burden of proof to show that his violation was inadvertent. As a result, the ALJ also affirmed the FAA's sanction. The airman then appealed the ALJ's decision to the full Board. On appeal, the Board initially remanded the case to the ALJ for clarification concerning his determination that the airman had failed to show his conduct was inadvertent because the ALJ's decision "lacked precision" on that issue.

After the remand, the ALJ clarified the basis for his finding that the airman’s actions were not inadvertent. The ALJ stated the airman must establish that his or her actions were both not deliberate and inadvertent. In support of his decision, the ALJ noted that the airman "received and acknowledged the ATC instruction; the aircraft instrumentation was functioning properly; and inattention does not excuse failure to comply with an ATC instruction, because “a reasonable and prudent pilot is expected to be continuously aware of and to utilize all relevant instrument data available.” The ALJ also found that the airman had not presented any evidence to support his claim that inattention was the reason why he deviated from the ATC instruction.

On appeal of the ALJ's amended decision, the airman argued that the ALJ incorrectly analyzed the "not deliberate and inadvertent" prong of the ASRP defense because the evidence showed that the airman "did not ignore his instruments, but simply misread them." The Board disagreed. First, the Board observed that the airman "only offers his own self-serving testimony as evidence that he misunderstood his instruments" and "does not explain how he misread both his altimeter and his copilot’s altimeter, which are two separate instruments, independent of one another." Further, the Board observed that the airman didn't use the other instruments, such as the vertical speed indicator and attitude indicator to determine that the aircraft was climbing or was not level at a certain altitude.

The Board then held that a pilot’s failure to comply with ATC instructions was not inadvertent unless the airman presented some compelling evidence to show that the failure occurred due to a mistake which, the Board determined the airman did not do in this case. Not only did the airman fail to show a mechanical defect, but he also failed to explain why he did not attempt to utilize other instruments nor did he present evidence that he incorrectly perceived his altimeter. As a result, the Board affirmed both the finding of violation and the imposition of sanction against the airman.

The Dissent

Board member Sumwalt found the case "troubling" and issued a concurring opinion. He initially stated his belief that "for the most part, a professional pilot does not intentionally deviate from his or her assigned altitude; in my opinion, the vast majority of such deviations are inadvertent and not deliberate. However, he then questioned why that was not the situation in this case.

He answers the question by first noting that an airman has the opportunity and the obligation to explain the circumstances of the violation and why they support the ASRP affirmative defense. Member Sumwalt then observed that the airman in this case "did not attempt to prove that his altitude deviation was inadvertent and not deliberate, but instead continued to assert an unproven claim that an instrument malfunction led to the altitude deviation." He went on to state that the airman "missed an opportunity to learn from his error" by blaming his equipment and, as a result, "he failed to focus on what was necessary to prove from a legal perspective – showing that his actions were inadvertent and not deliberate." Member Sumwalt concluded his concurrence by stating "if the FAA does pursue an enforcement action, it is incumbent on an individual to be forthright and to focus on proving that the actions were inadvertent and not deliberate. The respondent in this case failed to do either."

Conclusion

Was this simply a case of incorrectly choosing to defend against liability rather than sanction? Maybe. Would the airman have been better off presenting evidence of inattention, or at least some evidence of inadvertence? In hindsight, probably. Unfortunately, based upon the Board's findings, the bar for proving inadvertence seems to be set fairly high. Even if the airman in this case had presented evidence of inadvertence, I doubt whether it would have been sufficient for the Board.

In future cases it will be imperative for airmen to provide evidence of inadvertence if an ASRP affirmative defense is asserted. However, we will have to wait to see whether an airman will be able to present evidence that is actually compelling enough for the Board to find that a violation was inadvertent.