WilliamA.Curtright 

### Respondent POBox1350 Jefferson,OR97352 Telephone:(503)209-7388 Fax:(503)485-0812 

# RECEIVED JAN

# 232017 

# HEARINGDOCKET UNITEDSTATESOFAMERICA DEPARTMENTOFTRANSPORTATION OFFICEOFHEARINGS

WASHINGTON,D.C. InTheMatterOf: DocketNo.FAA-2015-1319 WILLIAMA.CURTRIGHT,DBA CaseNo.2014NM090046 Respondent JudgeJ.E.Sullivan



### RESPONDENTSSUBMISSIONOFADDITIONALAUTHORITYANDMOTIONTO DISMISS 

### COMESNOWRespondent,WilliamA.Curtright,DBArespectfullyfilesandsubmits additionalauthorityinsupportofitsMotionforSummaryJudgment,filedOctober26,2016. andRespondentsReplyMemoranduminSupportofMotionandMemorandumforSummary JudgmentfiledNovember10,2016.Respondentherebyincorporatesbyreferencethe aforementionedmotionsandaddsthefollowing: l.

### PursuanttotheALJ'sOrderofDecember14,

### 2016Respondentsubmitsfor considerationthatintheALJ'sOrderofDecember14,2016theORDERmakesthe followingreference:"Disputeisalegalissue:specificallywhethertheRespondentmade theaircraftandenginelogbooks

### "availableforinspection'asrequiredby14C.F.R.§ 91.407(c)....

### page6of8paragraph4oftheORDER".HereinAttachedas(Exhibit"1") RESPONDENT'SSUBMISSIONOFADDITIONALAUTHORITY DocketNo.FAA-2015-1319 CaseNo.2014NM0046 Page

# 1lf5 WilliamA.Curtright,DBA Respondent Telephone:(503)209-7388 Fax(503)485-0812

### RespondentrespondstothisportionoftheORDERofDecember14,

### 2016that14 C.F.R.§91.407(c)hasnothingtodowithmakingaircraftandenginelogbooksavailable forinspectionandrequeststhiscourttograntRespondentsMotionforSummary JudgmentfiledOctober26,2016initsentiretyandwouldshowthecourtthat14

### C.F.R.§ 91.407(c)isregardingtheOperationaftermaintenance,preventivemaintenance, rebuilding,oralteration.HereinAttachedas(Exhibit"2.") 2.RespondentwouldarguethataftermanyhoursofresearchoftheFAAdatabasethatis availableforsearchingforpreviousordersbytheFAAthatthereisnocaselawthat specificallyaddresses14C.F.R.91.417(c)orspecificallyaddressestheissueoftime, whatthetimeperiodisforaRespondentmakingaircraftandenginelogbooksavailable. RespondentwouldsubmittothecourtthatRespondentproducedtheaircraftandengine logbooksavailableinareasonabletimeinthedatabaseavailabletothepublicregarding theissue;specificallywhethertheRespondentmadetheaircraftandenginelogbooks "availableforinspection"asrequiredby14C.F.R.§

### 91.417(c)andthatthisissueisa precedentcasefortheFAAandallpilots.Thereisnocaselawregardingthespecific issueof

### whendoesonehavetomaketherecordsavailableandwhatisconsidered reasonablepursuantto14

### C.F.R.§

### 91.417(c).Respondentwouldsubmittothiscourtthat 14C.F.R.§

### 91.417(c)doesnotgiveaspecifictime,date,oramountofdays,thata Respondenthasforsubmittingtheaircraftandenginelogbooks"availablefor inspection."RespondentwouldarguetothiscourtthatRespondentmadeavailablefor inspectiontheaircraftandenginelogbooksinareasonableamountoftimeforinspection. RESPONDENT'SSUBMISSIONOFADDITIONALAUTHORITY DocketNo.FAA-201S-1319 CaseNo.2014NM0046 WilliamA.Curtright,DBA Respondent Telephone:(503)209-7388 Fax(503)485-08123. In addition, Respondent would argue that the aircraft and engine logbooks were made available for inspection as soon as they were located. In the motion for Summary Judgment, Respondent cited to the case In the Matter Of: PREMIER JETS, INC., with FAA ORDER NO. 99-7 and Docket No. CP97NM0005 that was served on August 31, 1999. Premier Jets, Inc., was also sent to FAA attorney David F. Shayne with Respondents Request for Admissions No. 7 and is herein attached as (Exhibit "3"). In that case, the FAA "(T)his appeal involves flight time recordkeeping by Part 135 air carriers. It raises the issue of which records Federal Aviation Administration (FAA) inspectors may use to determine compliance ..." "The FAA inspectors requested Premier's flight logs to check the accuracy of the crew ...... " The law judge assessed a

$375.00 penalty for ..... the ... violation." 4. Respondent would argue before this court that all case law that Respondent could find on the FAA website the administrative law judges lowered the assessed penalties amounts brought and sight by the Complainants and would request that this court do the same in lowering any penalties if penalties are awarded. Respondent would further request that a time period for making aircraft and engine logbooks available for inspection be added to 14 C.F.R. § 91.417(c). 5. Respondent would additionally, argue before this court that Complainant's Submission of Additional Authority of case In Re Schuman Aviation Co. LTD, FAA Order 2016-2(2016) RESPONDENT'S SUBMISSION OF ADDITIONAL AUTHORITY Docket No. FAA-2015-1319

Case No. 2014NM0046 William A. Curtright 1 DBA Respondent Telephone: (503) 209-7388 Fax (503)485-0812and Administrator v. Weinstein, NTSB Order EA-3675 (1992) do not have anything to do with a violation under 14 C.F.R. § 91.417(c). 6. Furthermore, Respondent would argue before this court that Complainant's Submission of Additional Authority of case Administrator v. Weinstein, NTSB Order EA-3675 (1992)1321. In this cases, the Respondent refused to produce his logbooks, not failed to produce as Complainant claims in his submission of additional authority. Respondent

would argue that he did not refuse or fail to produce his aircraft and engine logbooks and

they were inspected pursuant to 14 C.F.R.§ 91.417 (c). Respondent would argue before this court that Complainant's Submission of Additional Authority of case In Re Schuman Aviation Co. LTD, FAA Order 2016-2(2016). In that case the Respondent again, refused to produce his logbooks, under violation of 14 C.F.R.§ 135.73 not 14 C.F.R.§ 91.417 (c). Respondent would argue that he did not refuse or fail to produce his aircraft and engine logbooks and they were inspected pursuant to 14 C.F.R. § 91.417 (c). 7. Respondent submits to this court that Complainant has failed to meet his burden of corning forward with specific admissible evidence to support the elements of his claims for which he bears the burden of proof at trial. 8. Respondent would request this court grant Respondents Motion for Summary Judgment and other relief filed on October 26, 2016. WHEREFORE, Itis appropriate for this Court to grant Respondent's Motion for Summary Judgment. RESPONDENT'S SUBMISSION OF ADDITIONAL AUTHORITY Docket No. FAA-2015-1319

Case No. 2014NM0046 Page Lf**~S** William A. Curtright,DBARespondent Telephone: (503) 209-7388 Fax (503)485-0812'"' Dated this b_ day of January 2017 Respectfully submitted, )Dr. Wm. Ames Curtright, DBA Docket No. FAA-2015-1319(Civil Penalty Action) SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration (Fax and Certified First Class Mail) Attn: Hearing Docket Clerk, AGC-430

800 Independence Avenue SW Washington, DC 20591 Wilbur Wright Building, Suite 2W1000 Fax: (202) 267-1293 ONE COPY Judge J.E. Sullivan (Fax, Email, and Certified First Class Mail)

U.S. Administrative Law Judge Office of Hearings, M-20

U.S. Department of Transportation 1200 New Jersey Avenue, SE (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 David F. Shayne, FAA Attorney (Fax, Email, and Certified First Class Mail) Complainant's Counsel Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Ave. SW Renton, W A 98057 TEL: 425-227-1847 FAX: 425-227-1007 RESPONDENT'S SUBMISSION OF ADDITIONAL AUTHORITY Docket No. FAA-2015-1319

Case No. 2014NM0046 PagE>**5~5** William A. Curtright,DBARespondent Telephone: (503) 209-7388 Fax (503)485-08122016·12·)4 09:11 1 1 n SERVED; December 14, 2016 U.S. DEPARTMENT O:F TRANSPORTATlON OFFICE OF HEARINGS WASHINGTON, DC In The Matter Of: ))))) Docket No. FAA-20 15-1319 W!LLJAM A. CURTRIGHT Respondent Case No. 20 14NM090046 ORDER SETTING NEW TELEl'HONE CONFERENCE :FOR SUMMAlW JUDGMENT ARGUMENTS, SETTING DEADLINE FOR SUPPLEMENTAL MATERIALS, AND GRANTING/DENYING OTHER RELIEF

p 1/9 On Novemoer 18, 20115, an Order Reserving the Respondent's Motion for Summar-y Judgment. Setting Deadlines. and Adding Agenda to the Telepllone Conference ("November· 18. 201 G O•·der'') was filed. 1 Among othc•· things,**thi~** Order c:o\panded the Telephone Conference pt·cviously set on Thw·sday. Decembe1· 8. 201 G(1 :30 P·"'·- 3:00p.m. ET) to include va,·ious matters raised by the parties' summm·y judgment cross-motions. (Nov. 18, 2016 Orde1·. 3**~~~12·4.)** On November 22,2016, the prose Respondent, Mr. William A. Curtright, filed the Respondents' (sic] Response a11d Objection to Complainant's Motion for Partial Dccisio11 (Stnnn1ru·y Judgment). On December 6, 2016, the Respondent filed Respondents [sic] Motion to Compel. On December 8. 201 G(1 :30 p.m. ET), the parties convened for a Telephone Conference and discussed**v~u·ious** matters**,·ai~cd** by the parties' sumrn<li'Y _judgmcm matel'ials. as well as other matters pending. in the pt·oceeding. 1 This Novembe1· 16,. 20 16 Order identi lies tile prio1· summary judt;ment and other motion filings by the parties. du1·ing the period of October 31, 2016 through Novc111bcr 16, 20 \6.**2016·12-~4** 09:11 1 1 ,.,. p 2/9 That same day, on Decombe1' 8, 2016 (2:58p.m. ET), the FAA filed ')lith this Court by fax 2a complete copy (i.e., with al.lattachments included) of the Complainant's Motion for Partial Decision (Sun1mary JudQIM"t) ("Cross-Motion"). This Order codifies and **~upplements** the oral ntlings issued during tbe Oii:cember 8, 2016

Telephone Conference. Certain **matte~** resarding the pending svmmary

**j~dgemcnt** motion **~re** also briefly highlighted herein. On November 16, 20 16, the FAA filed by fux a couttesy copy ofa four (4) page document titled Complainant's Motionibr Partial Decision (Sun'lmary

**.Tud~:mem)** (.. CrossMotion'). The cover sheet to the FAA's faxed material statc:d, ''The **attachment:~** are **volumlnou.~.** so they will be in the U.S. Mail." (Nov, 16,2016 FAA Fax Covet' **Shc~:t).** On November 21, 2016, the FAA tiled by U.S. Mall a four (4}

**pa~e** duplicate oflts fa,xed Cross-Motion. There \Yert: no **att!!Ohm~:nts** included in the mailing. Neither the fa.xed court<:;5y copy of the FAA's Ct·oss-Motion, nor the mailed filins of the FAA's Cross-Motion. rcfercnc.::d

any atta<::hments or exhibits within tho four-pase document. At the beginning of the Decembe1· 8, 2016 Telephone Co11fcrence. the FAA alerted **thi~** Co11rt and Mr. CurtriGht that its Cross-Motio11 acMtlly Included approximately 39 pases of atrachments. However, neither the Court nor Mr. Cuttright had received any attachments. The FAA orally moved to continue the summary judgment argumen1s toa !low it tim"' to supplemenl its cross-motion material$ to include the missi11g attachments. The FAA'$ oral motion was granted

**ov~r** Mr. Curtright's obJection. 8. Complaint and Proposed Civil Pcm11ty On ot· about May 27. 201 S. the FAA Hearing Docket filed with the U.S. Ocpartmertt of Transportation's Office ofHearin!),Jl a copy of the FAA's unsislled Complaint (dated May 19. 2 The FAA **~srced** during the OoQomber S, 2016 Telcphom:
**Conf~rt!noo** to $¢rv¢ \he Slime motcrials on Ml', CiJttri,;.ht by both u.s. mail and cerrlfied mall. Page 2 ora2016-12-14 09:11 1 1 n p 3/9 20 1.5). 3 According to tbe Complai•1t, the FAA had sent the Respondent a Letter on ot· about July 1, 2014, aski11g tho Respond.:mt to· provide its maintemmce records for inspectio,,. (Com pl. 2-3 § ll ,[2.) Although the Respondent aclmowledged •·eceipt of the Lette•·, he did not immediately produce all the requested records. (Campi. 3 §II, 3.) On May 19,2015. approximately eleven (II) months after send inc the Lettet·, the FAA charged the Respondellt with a violation of 14 C.F.R. § 91.417(c). The FAA's May 19. 2015 Complaint asserted that tl1e Respondent ''failed to

make allmaintena11ce •·ecords required w be kept by this section [14 C.F.R. § 91.417(c)] -**availaillc~forinspectton"as** 1'etWi1'ed. (Compl. 3 §Ill 111.) Tl1c J'AA rcqireste<:l a-civil penalty in the amount of $11,000 ibnhe violation.**purs~1ant** to 49 U.S.C. § 46301 (a) and (d). (Compl. 3§ Ill, 3.)

C.**Respondent'~** Motion f'or Summary .Judgment On October 26,2016, the prose Respondent. Mr. William A. Curtt'igl1t. filed mulliple documents, including the Respondems' [sicJMotion and Memorat1dum for Summary Judgment (''Motion"). 4In essence, the Rcspo11dent SOltght dismissal asa matter of law of**th~** entire Complaint, on the gt•ounds that be did pt·oduce the documents the FAA had·t·cqucstcd. In suppot·t of his Motion, the Respondent submitted**twelv~** (12) Exhibits, identified as Exhibits I tbt·ough 12. The Respondent also pt·offered an additional three (3) Reply Exhibits, identified as**R~ply** Exhibits 1 through 3.**Th~** FAA did not object to the admissibility of any of the**Respondc•H·~** Exhibits. 'On November: 17. 201S. the Respondent raised objections to the validity of the unsigned Complaint. (Show Couse Stmt. I.) Sl:lvonteGn ( 17)' days Intel". on DocumbllH' 4, 20 IS. the PAA 's**Rc~ponsc** to Show Couac wns filed, which included a signed version of tile May 19.2015 Complaint. (FAA Resp. I. Attach.) On May IS. 2016 this Couo·•**~bund** thar the FAA'$ action to file o signed vcl'$ion of it$" Complaint constiluu:d a prompt corrective nc£ion, pursuant lO Federal Rule of Civil P1·acedure ll(a). gince**th~C** signed Complai11t was**l~ll.}d** prio1· to the Dr:cembt}t' IS. 2015 doodlino sot by the Coun lbr the fAA to nle o**Rcspons~.** (May 18. 20 IG OrUcl'7.) Thus. the FAA's Complaint is cotuidctcd lobe volidly filed with the FAA**H~rll'ing** Dookul und**toOI'~Iold** on rhe Respondcnl on Mny 19. 20 IS. even tl1ougl1 it was unsigned at the \'ime of filing and service. (lei,) ., On October 26. 2016. the Respondent also tiled the (,,flowing: IJn [Po·opoood) Oo·deo· Grunting R•spondonr< [sic] Motion fo•· Summilry**Judgm~:nr;** 2) Ruspondenrs (sic] Requesl for tl Ruling on Motion ana M!.!morandum 1'01' Stm1nuu·y Judgment; ;md 3)a (P1·oposeJd] Or·der Ct•a,ui,,g**Rc~>pond~nls** (sic] Request !"or f'l**Rulin~** on Motion t01· Summat·y Judgmcnl.**Pa~e** S of 82016-12-14 09:11 1 1 » p 4/9 D. Undisputed Mntcrinl Fncts Undca·lying the Alleged

**Viol~tion** During the December 8, 2016 Telephone Conference_, the 1mdisputed facts **underlyio~s** the

Respondent's

**motioo~** for summal'y judgment wc!'e briefly reviewed, to help the parties prepal'e for oral **arsun~e11t** scheduled on Jaouary 25,2017. Based on the paa·ties' submissions. it appeao·ed that there was no genuine dispute as to most (if not all) of the n,ateo·ial facts undel'iying the alleged violation ofl4 C.F.R. § 91.417(c). - --------fn-brief. **acoordia~s** to 14 C.F.R. § 91.417(o). the owneo· oa· **opea·ato•cofs.a~** aircraft shall ---- -- make all maintenance •·ecords i·equio·ed to be kept by 14 C.F.R. § 91.417 av;oilable lor iMpection by the Adminiwator or **ao~y** authorized repo·esentative of the National Transpol'!ation Safety Board. Tn the instant case, as bl'iet1y summarized by this Cmu1 dur·ing the December 8, 2016 Conference/ the parties asreed that Ma·. Curtl'igbt was at allr·elevant times the owner ofa Pipco· Model PA-18135 civil aircraft, with registration number N949JP ("N949JP"). (Com pl. 1 ,11;

Ans. 1**~** l.) On July l, 2014, FAA Inspector Mattin Conroy asked Mr. Cunrightto provide by July 17, 2014 "aircraft and engine maintenance logbooks'' ofN949JP (among other documents)

for the FAA's review. (Compl. 1·2 112: Ans. I 112: Ex. 7m3.) lnspccto•· Cono·oy·, a·equcst for **ia~spection** of M1·. Cuo·trisht's airoo·aft maintenance logbooks was part of the 1:A A's Portland Flight Stanclao·ds District Office official investigation of an aircraft accident involving N949JP. (Com pl. 1-2 **~**2: Ans. 1112; Ex. 7 lH 3.) On July 7. 2014. lnspectoo· Coni'Oy o·enewed his **reque~l.** asking Ma·. Cunright foo· a date cel'tain to ''inspect the aio·cr·an weight/balao1ce and airl1·amc/cngine maintenance logbooks." (Mot., Ex. 12 at7.) Tilat same day. on July 7. 2014. Mr. Curtright told Inspector Colll'oy that the "[r]est of the documents are norrh in Canada" (Mot., Ex. 12 at 7), and Mr. Cunrighr needed "some time to get them." (kl.) Approximately, seven (7) weeks later·. on August 28,2014, Mr. Curtright advised Inspector Conroy via email that he wo.,Jd not be tl'lweling to Canada for the 1·emaindeo· of the yeaa·. (Jd. at 8.) !i The ftlot5 pt·oft'bred in·the FAA's Ct·oss-Motion **w1:1'~** not **di~cul:i~od** duri11g th\} December 8, 2016 Telophone Confel'{:)nce. bccnus:c none of the PAA 's c,·oss-Motion anachml!nls. which I)I'C$UI113bly protTCt'!!d admiS$ilJI1! fuct:s. lli.ld been received by either rhc Coun or Mr. Cuttriglu. As **no1ctl~:nrli~r.** dw-ing

**th~** 0\::cc,,,bcr 8. 2016 **T,;h;phot,~** Confe1·enoe, the FAA **w:;~.~** ¥''l;tnt\!d lhc opp(ll'tunily to **SUJ)t)l~::tneiH** lts. Ct·oss .. Mot.ion nnd tilo **it~** J'&c.:t L!Xhibiu. <Hld the summili'Y judG,ment oro! tH'gwnl.:lnl wiiS **,·cs~.:l** to JatlLH:'II'Y 2,, 2017. Page 4 of 82016·12·J4 09:11 1 1 ,.,. p 5/9 About one (1) week late•·, on Septembe1· 9. 2014. Me. Ctll'tl'ight agai11 informed the FAA that the aircraft and enginG logbool{$ were at his residence in Canada. (fix. 12m !.) Approximately eleven (11) n1onths latet•, on A"sust 13, 2015, the parties <Ogreed that Mr. Curtright made the reco\'(is available to the FAA at Mr. Curtright's place of business in Salem.

Oregon. 6at which time FAA Inspecrors C1.1rt Cowley and Terry Juran inspected the aircraft maintenance records ofN949JP. (Mor. 5;

**s~.** 2at 2.) The following day. on August 14. 2015, InspectOr Cowley reported that Mr. Currright's "records were well organized and complete. hack **to-th~-birth-ofthc** airc1·aft;" (Mot.. Ex.S·at 2;) E. Disputed Issue. Time l'o•• Roguhl!ory Compli,\ncc Acco•xlit1[; to the record herein. on May 6. 2015, the FAA issued a final Notice ol' Proposed Civil Penalty ("FNPCP''), charging M1·. Curtright with the violation of 14 C.J".R. § 91.4!7(c). {Cornpl. 1., !.). On May 11, 2015. Mr. Curtright contest&d the FNPCP by submitting a **Req~•ett** for Hearing. (Jd.) On May l9. 2015, the FAA tiled its **Complain~** On All!;ll!St 13,201 S. the FAA inspected Mr. Curttight's aircraft l'ecords and found them tO be satlsl'llctory. As noted supra. the FAA does 11ot dispute that M1'. Ccnwisht ultimately p•·oduced the reco•·ds fo•· inspection, on or about August 13, 201 S. Rathel'. the FAA asserts that the undisputed fact timeline. which demonstrates a deliiy of ove•· one {1) year after the FAA's July 1. 2014 initial request for **produ~;tion.** is per se evidence of the **char~cd** records violatioo'l. Ina recent supplemental pleadinll.. the FAA also asserted that the **alle~:ed** violation of 14 C.F.R.. § 19.417(c) "commenced on orabout.h>ly 18. 2014." 7 (Aug. 23,2016 FAA Statement. 1.) M1·. Curtright agreed that as of September 4, 2014, the FAA. had advised him, via a **Lett~•·** of Investigation ("LOI''), that his fail11i-e to p•·odl.•ce the t•equested "airc1·aft and engine maintenance locbooks" ofN949JP could be "contrary to the federal Aviation Reg.ulations:· (Mot., Ex. 5at 1.) The FAA's September 4, 2014 LOI also advised Mr. Curtright that if he <·Inits Answer. !he R.c.<pondcnt

**oS$~rtcd** thoi these "losl" recon:l5 were \lltlmotely found nnd "presented" 10 the FAA one: month cnrlic1· vin t;mnil Ot) July IS, 2015. **{Ar~a.** l.1 2.)

**Th~** PAA dbpvtcd

**rhi~ p~rtlculttr**  **F~1t:t t1~crtion.** 

1 The "violation elate" of July IS. 2014 immedimety Follows tile f•'AA 's t,OI demand deadline date of July 17. 2016. Page 5 of82016·12·14 09:11 1 1 >:> p 6/9 "fail[ed) to supply the requested informacion'' (Mot:., Ex. 7at 1). the FAA would "make determinations about possible onforo<ilment action" without seeking any further participation ft'Om Mr. Curtright. (Mot .. Ex. 7at 2.) However, in his Motion, Mr. Curtright asse!'tS that tile language of 14 C.F.R. § 91.417{c) docs not t'Cquirc owners to sto•·e maintenance rt:cords on the: ain:raft, and instead o!lly requires that the maintenance records "be pred.,ced for inspection ina reasonable amount of time when _____ **requested_~:,-theFAA.l>JTSB** or law Mforcen1Emt." (Mot., S.) Mr. Curtright explained that some ofhis reeot•ds, which the FAA had **o-eque~ted** in ,July 2014. had been "lost" for a time. (Ans. 1. 'll'lf 1 and 3.) He also emphasized that these "lost" recoo·ds were ultimat-ely found and "presented" tO the FAA. (Ans. l. **~** 2,) Since itis **undisp~ted** that Mr. Curtright ultimately produced its aio·craft maintcnarocc logbooks for FAA inspection on **A~•gust** 13,2015 (i.e .. approximately thr00 (3) months a'ii¢r the FAA filed its Complaint), Mr. Curtright asserts that his actions were reasonable and in compllance with the regulatory requirements.

**r~us,** asa mattel' of law, he caJ'l110t.be found to nave commi.tted a violation ofl4 C.F.R. § 9l.417(c). (Mot. 5: r::x. 2.) In essence, based on the undisputed facts, the **iM~•e** in dispute isa legal issue; specifically,

whether the Respondent made the aircraft and engitle logbooks "available for inspection'' as required by 14 C.F.R. § 91.407(c). when he provided the logbooks thirteen (13) months after the FAA Invest! gator reqvested production of the logbooks. Neither the Respondent nor the FAA specifically addressed this narrow legal issue in their materials. F. Conclusion The parties are remi11dcd that each motion foo· summary judgment is reviewed sepamtely. **Stc:v~n** Baicker-McKee, et al., Fe®ral CIVIl Rules /1andboo/c, II 63·1)4 and 1171 (Thomson Reuters 2016). In oonsidcl'ing each motioo1, the Court onay 'consid<:r not only the rcq\ocstcd relict: but also consider g.rantingjvdgment on behalf of the non-movin.g party, andJor pl'Ovide relief on gl'Ounds different from what the parties r!Cquested. See, Federal R\ole of Civil Procedure 56(t)( l): and Steven Bnicker.McKee, et al.. supra 3! } 197-1198. Page Iii of!!2016·12·14 09:12 11 >:> p 7/9 The parties should be given ti111e to st•pplement their •••awials with legal al.lthority in support of their **St~mmary** judgment l'ositions, Oul'i11g the December 8, 2016 Telephone Conf<Wi:nce, M1·, Curtright orally provided the fol!owitlg authority: In 1he Mtillqr f!{Genqral Aviatlon, FAA Order 98-18 (October 8, 1998). The pa•·ties were also provided a Jam1a1')' 13, 2017 deadline to me any further legal authority. with the summary judgment oral arguments continued to January 25, 20\7, In addition. during the Decem bet' 8. 2016 Telephone Conference. certain oral rulingo on Mr. Curtright's November 19, 2016 Motion to Dismiss were issued and '*Plainodri'hoseruli"SB a•·e also codified in this Ot'C!cr. Pursuant to 14 C.F.R. §§ 1}.205, 13.218, a11d Rule 56, and after reviewing all relevont easelaw, regulations. statutory authority. and being fully advised; IT IS HEREBY ORD.E.RED: l. The FAA's oral motion. to continue rhe summary judgment arguments and to allow lrro S\lpplement its **ct·oss·motio.~** materials to include missing attachments. is granted ovc•· the Respondent's objection. 2. Thc{tcspol\dertt's rm1ltiple requests for Sllmmary judgment and other **relict~** contained in theRQspondent's Octobe•• 26, 201 G Motion, are reserved. 3. January 13, 2017 Supplement J)cadllne: On or before January 13, 2017, rhc parries may file supplemental matco·ial. specifically any legal authority and argument. in support

of their positions regarding thf;) Respondent's Motion fo•· Sun; mary Judgme11t on the violation charged u11d0r 14 C.F.R. § 9l.417(c). 4, Janunry 25, 2017 (I :30 p.m.-3:00p.m. ET): Motion Conference. Oral argumell\ will be heard on Wednesday. Ja,uary 25, 2017 (I :30 p.m.-3:00p.m. Eastern time) regarding both the Respondent's Motion for Summary **Jt~dsment** and th!lFAA 's Cross-Motion. Should tin1e permit, final $Latus of discovery as well as potentialltearing dates (in the

event the matters herein are not fully resolved by sumrnary judgment) will also be addressed. To access the Courrs Conference line. the parties shall dial 888·278·0296 and enter code 5851842.2016·12·14 09:12 1 1 » p 8/9 S. The Respond11nt's November 19, 2016 Motion to Dismiss, on the grovnds that the "actual date ofvioiQtion" in this case is 11ot identi'fied. is denied. 6. The Novembet' 19. 2016 Motion to Dismiss, on **th~** grounds **thatth~** FAA's complete copy of its Enforcement li1VO$tisation Repot't has not been provided to the Respondent,

**i~** denied. 7. The Respondent's November 19, ZO1G Motion to Dismiss. oo 'the: grounds that the FAA , **--·~tllHlot-fully** explained to the Respondent the **b~sis** for its proposc:d$11,000 civil· penalty.--'· is denied, 8. The RespOI'Ide>,t' s November 19, 2016 Motion to Dismiss. on the grounds that the Respondent provided a majority of **it~** t-ecords on or before .Tvly 7, 2014,

**i~** denied. 9. The Respondent's November 19,. 2016 Motion to Dismiss', on tile !li'Ouncls that the fAA lacks evidence to pt·ove the alleged violation. is de11ied. J0. The Respondent's November 19. 2016 Mmion 10 Dismiss, on the c,rounds ll1at he produced his aircraft records within a reasonable time, is reserved afi part of the pending sul'l'lma•-y judsment pl'OOeeding. II. The Respondent's November 19, 2016 Morion to Dismiss, on the c,rounds tllatthe FAA ·s proposed civil penalty of$) 1,000 violates the Eighth Amendment prohibition against cruel ami unusual punishn\ent, is denied. I2. l'or clarifications of this order or questions with resard to the procedures to be followed in this oase, ple<>sc contact Mr. Cody L. Smith. Attor11ey-Advisor at the Office of Hea,·ings (202-366-6941 ). .ludgu.s' A:Qij:l.I.!;Wil>'trti Attachment: Setviee List Page a of82016·12·14 09:12 1 1 >> p 9/9 Docket No. FAA-2015-1319

(Civil Penalty Action) SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Admlnlstt·tuion 800 Independence Avenue, S. W, . Washington, DC 20591 Atten<ion: Hearing Docket Clerk, AOC-430 Wilbur Wright **Building~Suite** 2W I 000« Mr. David F. Shayne Complainant s Counsel l:ederal Aviation Administrmion Northwest Mountain Region, ANM· 7 160 I Lind Avenue S. W, Renton, WA 96057 TEL: 425·227·1847 FAX: 42S-227-1007 Ot·. William Ames Cut'tt·lght. DBA RespondentP.O. Bo;.; 1350

Jefferson. OR 97352 TEL: 503-209·7388 FAX: 503·485-0812 Judge J.E. Sullivan

U.S. Administr«liWJ Law Judge U.S. Oeparcment ofTranspot·tation Oflice of Hearings, M-20 1200NewJerseyAvenue, S.E. (Ell-310) Washington. DC 20590 TEL; 202-366·6941 FAX: 202·366-7536

ONE COPY

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Sc **~o** i'rorndoctc.pdf.corr CFR Toolbox Ul on your phone: ('t\tfn /!lt,.wwE ,apple.OO!l1/ws/app:laY.fireld4ll3807 492) lal>,' aOOuL Ar'Fcle11 from wox (/Wex!wex_aricles) View eCFR (hf!p-:!Mww **.ectr.gt;v/cgi-biril:f!xHt'x?e=eclr&lpl~/aclrbm•Nt:«lTitle** 14/14clr91_mair_02Jpf) T.ab!e cf Papu'ar f\lamO$ **~'lopn)** Para!Wi T&bre at AJttoorttics (!ptoa; (I' UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC In the Matter of: FAA Order No, 99-7 PREMIER JETS, INC. Served: August 31, 1999 Docket No. CP97NM0005 DECISION AND ORDER 1 This appeal involves flight time recordkeeping by Part 135 air carriers. It raises the issue of which records Federal Aviation Administration (FAA) inspectors may use to determine compliance with the flight time limitations. This case does not involve any allegation that Premier violated the flight time limits themselves; only recordkeeping isat ISSUe. Premier Jets, Inc. (Premier) has appealed the law judge's decision finding that Premier committed three offour alleged recordkeeping violations• This decision denies Premier's appeal and affirms the law judge's decision assessing a civil penalty of$1, 125. Premier isa Part 135 operator located in Oregon that employs about 30 pilots, Premier transports transplant teams and donor organs for several hospitals. The FAA conducted an in-depth inspection of Premier's operation from March 25 1 The Administrator's civil penalty decisions are available on LEXIS, WestLaw, and other computer databases. They are also **avai!abl~:** on CD-ROM through A&oflight Publications.

Finally, they can be found in Hawkins's Civil Penalty Cases Digest Sllfvice and Clark Boardman Callaghan's Federal Aviation Decisions. For additional information, see 64 Fed. Reg. 43,236, 43,250 (August 9, 1999). 2A copy of the law judge's written initial decision is attached. tlG **h~bit** 5 i/2 through March 29. 1996. At the start of the inspection, Premier provided FAA inspectors with its individual records of pilot flight time, which consisted solely of"crew duty time sheets. "3 After noticing that one pilot's record indicated that he had not logged flight

time since March 3. 1996, the FAA inspectors requested Premier's flight logs to check

the accuracy of the crew duty time sheets. The inspectors discovered discrepancies between the crew duty time sheets and the flight logs. Some errors were in the crew duty time sheets and some were in the flight logs. Complainant FAA initiated the instant civil penalty action, alleging that Premier committed several violations of the following regulation:

§ 135.63 Recordkeeping requirements. (a) Each certificate holder shall keep at its principal business office or at other places approved by the Administrator, and shall make available for inspection by the Administrator, the following- (4} An individual record of each pilot used in operations under this part, including the following information: (vii) The pilot's flight time in sufficient detail to determine compliance with the flight time limitations of this part. 14 C.F.R. § 135.63(a)(4)(vii) (1996). After a hearing, the law judge found that the record supported a finding of violation on three of the four counts in the complaint. The law judge noted as follows: • Count 1. Premier's chief pilot conceded that one of Premier's pilots 2 A copy of the law judge's written initial decision is attached.

3A crew duty time sheet isa weekly compilation ofa pilot's on-duty, flight, crew-rest, and offduty time.3 recorded 2A hours flying time on his crew duty time sheet for the wrong day for March 1 instead of March 2, 1996. Regarding Count I. the law judge found a violation of Section 135. 63(a)(4)(viij. • Count 2. The complaint alleged that Premier failed to maintain an individual record ofa pilot in sufficient detail regarding a January 14, 1996, flight At the hearing, however, the FAA inspector acknowledged that the pilot incorrectly wrote down the wrong date on the flight log (January 14, 1996, instead of March 14, 1996) and that the crew duty time sheet was correct. The law judge concluded that the flight with questionable recordkeeping occurred on March 14, 1996, and that Complainant improperly drew up Count 2 of the complaint by alleging a January I4,I 996, flight. As a result, the law judge dismissed Count 2. • Count 3. Premier's chief pilot conceded that its pilots entered the wrong date on the flight log (March 19 instead of March 18, 1996). The crew duty sheets were correct. Regarding Count 3, the law judge found a violation of Section 135.63(a){4)(vii). • Count 4. The flight time on the crew duty time sheets for two pilots for March 8, 1996, appeared to be incorrect Regarding Count 4, the law judge found a violation of Section 135.63 (a)( 4)(vii). The law judge said that Premier must direct attention to its pilots' recordkeeping practices to **elimina~e** errors. He pointed out that accurate records must be kept if the operator is to know when to schedule pilots within the permissible limits and if the FAA is to know whether the operator has done so. The law judge concluded that Premier's recordkeeping violated Section !35.63(a)(4)(vii) because it did not consist of both the flight logs and the crew duty time sheets. According to the law judge, Premier's recordkeeping was inadequate both for containing inaccuracies and for necessitating cross-checking, The law judge assessed a $375 penalty for each of the three violations he found, for a total of$1,125. Premier has appealed the law judge's initial decision. In its appeal brief, Premier presents two mutually exclusive arguments. First,••
4 Premier argues that the FAA inspectors should not have examined the flight logs because they were not part of the "individual record" of each pilot. Without the flight logs, FAA inspectors would not have been able to determine conclusively that the crew duty time sheets contained errors. Second, Premier argues that it committed no violation because the flight logs were part of the "individual record" of each pilot's flight time. Premier notes that the inspectors were able to determine the pilots' true flight time by comparing the crew duty time sheets with the flight logs. Thus, Premier contends, its recordkeeping met the requirements of the rule. Contrary to Premier's contentions, the inspectors acted appropriately when they examined the flight logs. Indeed, if the inspectors had chosen to ignore or overlook any compliance concerns raised by their examination of the crew duty time sheets, they would have been abrogating their critical safety duties. The inspectors acted appropriately in conducting a searching and thorough review of Premier's records, including the flight logs. Nor does the record support Premier's other argument- i.e., that no violation occurred because the flight logs were part of the "individual record" of each pilot. The law judge found that Premier should have kept the flight logs as part of the "individual record" of each pilot, because Premier was using the flight logs rather than the crew duty time sheets to schedule its pilots.' As the law judge noted, the flight time recordkeeping 4 Although the law judge's decision may suggest that if Premier had kept the crew duty time sheets and the flight logs together as the individual pilot records, Premier would not have committed any violations, itis unclear that this is true. First, there were still errors in both types of records. Second, a record-keeping practice that requires inspectors routinely to review two..•
5 provision has a dual purpose first, to ensure that in scheduling, an air carrier complies with the flight time limits, and second, to ensure that the FAA can readily monitor the air carrier's compliance with the flight time limits. Premier. however, did not keep the flight logs as part of the individual record of each pilot. Instead: the flight logs for all of Premier's pilots for a single month were kept in the same file. \Vhere there was more than one pilot for a flight, multiple pilots appeared on a single flight log. Moreover, when Premier gave the inspectors its individual records, it gave them only the crew duty time sheets and not the flight logs. Section 135.63 requires air carriers to keep individual records of pilots used in air carrier operations in part so that FAA inspectors may determine, without an undue expenditure of time and resources, whether an air carrier is complying with the safety regulations. See 43 Fed. Reg. at 46,764, stating that "[a] primary objective of the rule is to produce the minimum records needed for the FAA to objectively judge compliance ... and thus insure safety .... [fhe rule] is necessary for operators to maintain a safe operation and for the FAA to monitor the **operator.~** When an air carrier has failed to keep records that are accurate and that are by individual pilot, then an air carrier's recordkeeping is inadequate. See In the Matter of South Aero, FAA Order No. 96-4 at 11 (February 13, 1996) (affirming the law judge's finding that South Aero's recordkeeping was inadequate, and noting that South Aero had conceded that it was only through types of documents as the individual pilot flight time record may be too time-consuming, undermining one purpose of the rule, which isto facilitate and speed safety oversight by consolidating the relevant information in one record for each pilot. Itis unnecessary to reach the issue of the appropriateness of keeping the crew duty time sheets and flight logs together as the individual pilot record because the record indicates that Premier did not do so.•. 6 signitlcant time and resoun:es that FAA inspectors were able to piece together the pilots' flight and duty time}. In conclusion, the law judge did not err in finding Premier's recordkeeping inadequate. This decision denies Premier's appeal and affirms the law judge's decision

assessing a civil penalty of$1,125.' Issued this 23rd day of August, 1999. 5 Unless Respondent files a petition for review with a Court of Appeals of the United States within 60 days of service of this decision {under 49 U.S.C. § 46110), this decision shall be considered an order assessing civil penalty. See 14 C.F.R. §§ 13.16{b)(4) and 13.233(i)(2) (1998).