* 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this opinion should not be published and is not precedent except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.

1 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 re view 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 an2

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 Instru ment Flight Rules

(IFR) plan for a flight from Tupelo Municipal Airport, Tupelo,

Mississippi, to Fulton County-Brown Field Airpo r t 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

a lleged that Harris, while operating an aircraft on a passengercarrying 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 betwee n 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,3

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 d eclined 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,

c apriciousness, an abuse of discretion, or otherwise no t in

accordance with law. J anka 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).4

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

pr oposition that a deviation constitutes careless and potential

endangerment and that conduct inc idental to the violation is

immaterial. A dministrator v. Kearney, 6 N.T.S.B. 348, 349 (1988);

Administrator v. Jobe

, 5 N.T.S.B. 1446 (1986); Adm inistrator v.

Haines

, 1 N.T.S.B. 769 (1970), aff’d

, 449 F.2d 10 73 (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 this5

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 vio lated an altitude

clearance, and th at 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.