“Inadvertent” in the ASRS/NASA Reporting Rules is just “Plain Vanilla” English

As most pilots know, the FAA and NASA have a joint program to enhance aviation safety. The Aviation Safety Reporting System asks pilots and other users of the air traffic system to voluntarily report safety issues. In exchange, the FAA gives the reporter a number of benefits, a major one of which is partial immunity from violations. If the FAA brings a successful enforcement action against a pilot for violating a federal aviation regulation (FAR), the penalty associated with the violation (typically pilot certificate suspension) is waived when certain conditions exist. One of those conditions is that the violation was “inadvertent.”

On August 4, 2016, the US Court of Appeals for the Fifth Circuit partially reversed an NTSB decision upholding certificate suspension in a case involving a pilot who flew in RVSM airspace without proper authorization. The court agreed there was a violation but reversed the NTSB’s refusal to waive the suspension for filing an ASRS report. Unlike the FAA and the NTSB, the court found the pilot’s actions to be inadvertent:

“Inadvertent” is neither a technical legal term nor a FAA term of art. Rather, it is a “plain vanilla” English adjective and must be interpreted here as such.

In defining the “plain vanilla” word, “inadvertent,” the court looked at English language dictionaries as well as some legal sources. “Unintentional,” “accidental,” “not duly attentive,” ““an accidental oversight; a result of carelessness” are the terms it found. Applying those definitions, the Boeta court found the pilot’s actions to be inadvertent and directed the NTSB to waive the pilot’s 60-day certificate suspension.

More Detail

The case, Boeta v. FAA (5th Cir. 2016), presents a somewhat intricate set of facts. It involves the complexities of so-called “dry lease” arrangements, in which “operational control” of an aircraft is transferred among businesses as a way of splitting the costs of ownership, usually among noncommercial operators, although this case also involves a commercial operator. It is helpful to have a basic understanding of the difference between noncommercial FAR “Part 91” operations and commercial “Part 135” operations. It requires some familiarity with the concept of “Reduced Vertical Separation Minimums” (RVSM), which permits Air Traffic Control to reduce the amount of space separating aircraft for specially-equipped aircraft with specially-trained crews. Important to understanding the case is that authority to fly RVSM is generally documented in one of two ways. For Part 91 noncommercial operators, it is an FAA “Letter of Authorization” (LOA).  For a Part 135 operator, the authorization is typically included in the company’s FAA-approved “Operations Specifications” (OpSpecs).

To liberally summarize, here are the main players. Capital Aerospace was a Part 91 (noncommercial) operator that provided flight services for a related company, Redi-Carpet. USAC Airways was a Part 135 commercial operator which dry-leased the airplane, a BeechJet 400, for commercial purposes.  The airplane was RVSM approved under USAC’s OpSpecs; Capital did not have a separate RVSM LOA. Boeta was a RVSM trained pilot who worked for all three companies. Under the arrangement with USAC, flights were conducted under USAC’s operating certificate, including its RVSM authorization. All was properly done.

Confused? Good. Then you can easily imagine Boeta’s predicament when no one bothered to tell him the relationship with USAC had ended and he was only flying for Capital! Which, you will recall, did not have any RVSM authorization.

So, one day after the end of the relationship with USAC,, Boeta is happily flying the BeechJet under RSVM and lands at Palm Beach, Florida He is met with an FAA ramp check (which may have been instigated by a complaint from an unhappy USAC). This, of course leads to the discovery that the flight was not RSVM-authorized and this enforcement action. Being a wise pilot, Mr. Boeta filed a timely ASRS report.

The FAA certificate action, upheld by the NTSB, charged Boeta with operating RSVM without authority (FAR 91.180(a) and Part 91, Appendix G, Section 4). His pilot certificate was suspended for 60 days. Waiver of the suspension under the ASRS rule was refused, the NTSB agreeing with the FAA that the violation was not “inadvertent” because Boeta didn’t check on the current status of the RSVM authorization himself immediately before the flight. The appeal to the Fifth Circuit Court of Appeals followed. The Court of Appeals agreed with the FAA that the violation took place – Boeta in fact flew RVSM without authorization. The court also rejected Boeta’s defense that he reasonably relied on the previously existing authorization. But when it came down to the applicability of the ASRS waiver, the court had a very different view.

With quotations and examples from another case, the Boeta court said:

an inadvertent act is one that is not the result of a purposeful choice.

***

[A] person who turns suddenly and spills a cup of coffee has acted inadvertently… [A] person who places a coffee cup precariously on the edge of a table has engaged in purposeful behavior… [T] he 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.

Applying these principles, the court decided Boeta’s RSVM flight was inadvertent for purposes of the sanction under the ASRS rules. First, the Fifth Circuit found no regulation requiring a pilot to monitor and confirm the RVSM eligibility of an aircraft. Second, the Court, applying a general principle, found it was reasonable for Boeta to presume “an existing condition [RVSM approval] continues in existence, unless there is some indication there has been a change [no one told him]”. Ultimately, though, the Court applied a reality check:

But candidly, it defies common sense to conclude that Boeta was anything but inadvertent when he, as a pilot capable of flying in restricted airspace, flew an airplane capable of flying in restricted airspace, without checking the paperwork evidencing that the operator (not the pilot!) of that craft was still authorized to commission such flights (emphasis and exclamation in the original).

Takeaway

It is difficult to get a clear takeaway from the case. As the Boeta court itself points out, whether an act or omission (like failing to check on the RVSM status) “is ‘inadvertent’ depends on the exact nature of the act or omission in question and the discrete facts and details of the situation…” Like many other cases, this one is very fact-intensive.

But we do know that at least one federal circuit Court of Appeals takes the position the “inadvertent” is not a special regulatory term with an FAA definition but just plain old every day, or “plain vanilla,” English.

The decision of the Court of Appeals may be viewed at http://bit.ly/2aOdYRF. The NTSB decision it partially reversed is at http://bit.ly/2aCrhbh

 

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