Here are the ASRS Enforcement restriction limitations:
Enforcement Restrictions. The FAA considers the filing of a report with NASA concerning an incident or occurrence involving a violation of 49 U.S.C. subtitle VII or the 14 CFR to be indicative of a constructive attitude. Such an attitude will tend to prevent future violations. Accordingly, although a finding of violation may be made, neither a civil penalty nor certificate suspension will be imposed if:
The violation was inadvertent and not deliberate;
The violation did not involve a criminal offense, accident, or action under 49 U.S.C. § 44709, which discloses a lack of qualification or competency, which is wholly excluded from this policy;
The person has not been found in any prior FAA enforcement action to have committed a violation of 49 U.S.C. subtitle VII, or any regulation promulgated there for a period of 5 years prior to the date of occurrence; and
The person proves that, within 10 days after the violation, or date when the person became aware or should have been aware of the violation, he or she completed and delivered or mailed a written report of the incident or occurrence to NASA.
Before we dive into an argument about what constitutes "a lack of ... competency", let's look at Transport Canada's enforcement manual (admittedly a different organization) and what it has to say about incompetence":
incompetent—Lacking the knowledge, ability or fitness necessary for effective action; unable to meet
specified requirements; not legally qualified.
A judgement of incompetence doesn't mean you did the wrong thing - once, or even twice. It means the
inability to do it right, ever.
And also let's look at Staff Instruction SI SUR-014 (
https://www.tc.gc.ca/ca-opssvs/si-sur-014.pdf) on the subject of "Suspension or Cancellation of Canadian Aviation Documents for Safety Reasons"
(3) For the purpose of this SI, incompetence is the inability to perform activities that are authorized in
a CAD in compliance with the regulations and standards applicable to that type of activity. An
assemblage of evidence that collectively demonstrates an inability to comply, over a reasonably
lengthy period of time, demonstrates a state of incompetence.
(4) Repeated non-compliant behaviour and a history of non-compliant acts on behalf of a CAD holder
may be an indication of incompetence; however, it should not be assumed that this is the case. In
order to support a certificate action based on the incompetence of a CAD holder, it must be
demonstrated that the repetitive non-compliant acts are the result of an inability to comply rather
than an unwillingness to comply or a desire or need to be non-compliant in order to further other
needs such as a business or financial goal.
These pilots had not demonstrated incompetence, unless you believe they were basically incapable of navigating the flight correctly.
DId you hear the one about the jurisprudence fetishist? He got off on a technicality.
