UNITED STATES COURT OF APPEALS
For the Fifth Circuit
No. 96-60670
Summary Calendar
CARLYLE S. HARRIS,
Petitioner,
VERSUS
DAVID R. HINSON, Administrator, FEDERAL AVIATION ADMINISTRATION,
NATIONAL TRANSPORTATION SAFETY BOARD,
Respondents.
On Petition for Review of an Order
of the National Transportation Safety Board
(NTSB EA-4475)
March 19, 1997
Before GARWOOD, JOLLY, and DENNIS, Circuit Judges.
PER CURIAM:*
Carlyle Harris petitions for review of the order of the
National Transportation Safety Board (NTSB) upholding the Federal
Aviation Adminstration’s (FAA) determination that Harris had
deviated from an air traffic control clearance and operated an
*
Pursuant to Local Rule 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in Local Rule 47.5.4.
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aircraft in a careless or reckless manner. Harris claims that the
action taken by the FAA was excessive under the circumstances; that
the FAA failed to honor the settlement of the charged violations;
that material issues of fact should have precluded granting summary
judgment; and that the administrative law judge (ALJ) and the NTSB
failed to rule on Harris’ motion to dismiss. We affirm the NTSB’s
order.
FACTS
On April 26, 1995, Harris filed an Instrument Flight Rules
(IFR) plan for a flight from Tupelo Municipal Airport, Tupelo,
Mississippi, to Fulton County-Brown Field Airport in Atlanta,
Georgia. Air traffic control gave Harris IFR clearance and
instructed him to level at 6,000'. When Harris began to climb to
7,000', he was notified by the air traffic controller because this
ascent caused the aircraft to lose the standard five miles of
separation from another aircraft operating on an IFR plan.
On August 28, 1995, the administrator of the FAA ordered
Harris’ commercial pilot certificate suspended. The administrator
alleged that Harris, while operating an aircraft on a passenger-
carrying flight under IFR, ascended 700 feet above the altitude to
which air traffic control cleared him. Further, the administrator
alleged that this deviation resulted in a loss of the required
separation between his aircraft and another, which was operating
300 feet above Harris’ aircraft.
The administrator found that Harris deviated from an air
traffic control clearance without obtaining an amended clearance,
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in violation of § 91.123(a) of the Federal Aviation Regulations
(FAR), 14 C.F.R. § 91.123(a)(1995); and that Harris had operated
the aircraft in a careless or reckless manner so as to endanger the
life or property of another, in violation of § 91.13(a) of the FAR.
The FAA declined to enforce the suspension, however, pursuant to
the FAA’s Aviation Safety Reporting Program.
Harris appealed the order of the FAA to the NTSB. Harris did
not dispute that he was only cleared to ascend to 6,000', and that
he ascended beyond 6,500'. Harris, however, claimed that he
mistakenly believed he was cleared to 7,000'. The ALJ granted
NTSB’s motion for summary judgment on the basis that Harris had
violated the FAR. The ALJ also concluded that the FAA’s waiver of
the penalty of suspension left no factual issues for determination
by a trial. Following the ALJ’s denial of Harris’ motion to
reconsider, Harris filed a notice of appeal with the full NTSB. On
August 16, 1996, the NTSB denied Harris’ appeal and upheld the
FAA’s order. Petitioner timely appealed.
DISCUSSION
We review a decision of the NTSB for arbitrariness,
capriciousness, an abuse of discretion, or otherwise not in
accordance with law. Janka v. Department of Transp., 925 F.2d
1147, 1149 (9th Cir. 1991). Harris concedes that the scope of
review is narrow, and that our sole task is to determine whether
the agency could fairly and reasonably find the facts as it did.
Chritton v. National Safety Transp. Bd., 888 F.2d 854, 856 (D.C.
1989).
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Harris claims that the FAA’s actions were not justified.
Specifically, Harris argues that “if this same mistake were made by
another pilot and there were no other inappropriate reasons for the
FAA to seek maximum sanctions, that pilot would have received a
warning, counseling, or remedial training, and there would be no
enforcement action on his permanent record.” Harris’ December 22,
1995, Motion to Dismiss.
Harris also claims that the deviation itself does not carry a
presumption of carelessness and endangerment of others. The NTSB
argues that it may exercise its own judgment in concluding that
operating an aircraft in violation of the FAR is careless and
endangering to others even if the danger is only potential, not
actual. Harris attempts to distinguish his situation by noting the
professional corrective actions he took, but the NTSB responds that
the initial deviation from the altitude clearances is the focus for
determining a violation.
The NTSB cites authority analogous to Harris’ actions for the
proposition that a deviation constitutes careless and potential
endangerment and that conduct incidental to the violation is
immaterial. Administrator v. Kearney, 6 N.T.S.B. 348, 349 (1988);
Administrator v. Jobe, 5 N.T.S.B. 1446 (1986); Administrator v.
Haines, 1 N.T.S.B. 769 (1970), aff’d, 449 F.2d 1073 (D.C.Cir.
1971). Harris concedes that he committed an operational violation
of § 91.123(a). This violation reduced the distance between his
aircraft and another to 2.75, instead of the standard five miles
of separation. The NTSB did not clearly err in finding that this
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action was careless and endangering. The NTSB’s determination that
the potential hazard in this situation justified a finding that §
91.13(a) is neither arbitrary nor capricious.
We decline to discuss Harris’ arguments regarding rejection of
a settlement offer and a failure to rule on his first motion to
dismiss, as we find these claims lack merit.
CONCLUSION
The NTSB’s conclusion that Harris violated an altitude
clearance, and that this deviation constituted careless and
endangering operation of an aircraft, was neither arbitrary not
capricious. Accordingly, the NTSB’s order affirming the ALJ’s
decision is AFFIRMED.
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