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BEFORE THE UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

CS 

In the matter of 

DMS No. FAA-2009-0180 

PINNACLE AIRLINES, INC. FAA Case No. 2007SO950331 

•••'-CD 

CD 

APPEAL FROM THE INITIAL DECISION OF ADMINISTI^TIVE LAW 

JUDGE ISAAC D. BENKIN 

BRIEF OF RESPONDENT-APPELLANT PINNACLE AIRLINES, INC. 

W. Chris Harrison (TN Bar #018689) 

PINNACLE AIRLINES, INC. 

IN HOUSE COUNSEL 

1689 Nonconnah Boulevard, Suite 111 

Memphis, Tennessee 38132 

Telephone: (901) 348-2494 

Attorney for Respondent-Appellant 

Pinnacle Airlines, Inc. 

r..!.q ^- ^, 2010 

HEARIHG DOCKET 
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TABLE OF CONTENTS 

Table of Contents ii 

Table of Authorities iv 

Statement Regarding Oral Argument 1 

Summary of Specific Objections to tlie Initial Decision of the Administrative Law 

Judge 2 

Statement of Case , .., 4 

Statement of Facts 6 

Basis for the Appeal to the Administrator of the FAA 13 

I. Standard of Review 13 

II. Judge Renkin's Conclusions of Law were not in Accordance with Law, 

Precedent and Public Policy 13 

A. Judge Benkin Erred by not Considering the Low Material Risk to the 

Flying Public 13 

1. Judge Benkin erred by failing to consider the low material risk 

of harm to the flying public because all sixteen ground security 

coordinators were tested under Pinnacle's non-DOT drug and 

alcohol testing program ,, , 14 

2. Judge Benkin erred in a.ssessing a maxiumum civil penalty for 

Jeremy Heinbach despite a low material risk to the flying 

public 20 

3. Judge Benkin erred in assessing a maxiumum civil penalty for 

Michael Sampson despite a low material risk to the flying 

public 21 
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B. Judge Benkin Erred by Finding that Pinnacle's Remedial Actions did 

not Substantiate a Lower Civil Penalty 22 

C- Judge Benkin Erred in Finding a Maximum Violation Regarding 

Adam Stewart ba.scd an a mere Paperwork Error 25 

D. Judge Benkin Erred in Assessing a Civil Penalty Under a Civil Penalty 

Statute which the FAA did not Assert 28 

III. Judge Benkin Committed Prejudicial Error when he Relied on Information 

Outside of the Record for his Decision 29 

A. Judge Benkin En-ed by Relying on Infoimation About Pinnacle's Size 

that was Outside of the Record 29 

B. Judge Benkin Erred by Relying on Information Outside of the Record 

Regarding Perceived Ease of Pinnacle's Remedial Actions 31 

IV. Judge Benkin Erred by Relying on Prior Violations that were not Supported 

by a Preponderance of Reliable, Substantial or Probative Evidence 32 

Conclusion and Relief Requested 35 

Certificate of Service 36 

in 
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TABLE OF AUTHORITIES 

Cases 

Administrator Decisions: 

In the Matter of Eastern Air Center, FAA Order No. 2008-3, 2008 WL 345386 

(Jan. 28, 2008) 27, 29, 30 

In the Matter of Northwest Airlines, FAA Order No. 90-37, 1990 WL 656278 

(Nov. 7, 1990) 14 

In the Matter ofStehhins Aviation, Inc., FAA Order No. 2006-3,2006 WL 465373 

(Feb. 7, 2006) 17, 18 

In the Matter ofWestair Commuter Airlines, Inc., TAA Order No. 93-18, 1993 WL 

833102 (June 10, 1993) 23 

Administrative Law Judge Decisions: 

FAA V. Husky Corp., DMS No. FAA-2007-0120, 2008 WL 4911175 (Oct. 31, 

2008) 24 

In the Matter of Mole-Master Services Corp., DMS No. FAA-2()08-0691, 2009 

WL 348181 (Feb. 10, 2009) 24 

Statutes 

49 U.S.C.§ 46301(a)(1) 3 

49 U.S.C. § 46301(a)(5)(A) 4, 28, 29 

Administrative Materials 

14 CF.R. Part 13,16(n) 33, 34 

14C.F.R.Partl3.16(n)(iii) 33 

14 CF.R. Part 121, Appendix 1 6, 7, 8, 9, 20, 25 

14 CF.R. Part 121, Appendix I(V)(A)(3) 15 

IV 
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14 CF.R. Part 121, Appendix J 6,7 

14 CF.R. § 13.224(a) 32 

14 CF.R. § 13.230 30 

14 CF.R. § 13.233 5, 30 

14 CF.R. § 13.233(b) 13 

14 CF.R. § 13.233(b)(1) 13 

14 CF.R. § 13.233(b)(2) 13 

14 CF.R. § 13.233(b)(3) 13 

49 CF.R. § 1544.229 26 
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STAI EMENT REGARDING ORAL ARGUMENT 

Respondent-Appellant Pinnacle Airlines, Inc. (hereinafter "Pinnacle") 

hereby respectfully requests oral argument of the issues presented in tliis appeal. 
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SUMMARY OF SPECIFIC OBJECTIONS TO THE INITIAL DECISION 

OF THE ADMINISTRATIVE LAW JUDGE 

1. The Administrative Law Judge's Initial Decision failed to properly account 

for the low material risk to the flying public, as required by law and agency 

regulations, despite a preponderance of reliable, probative, and substantial 

evidence in the record that proved Pinnacle's inadvertent errors created a 

low risk. 

2. The Administrative Law Judge's Initial Decision failed to properly account 

for Pinnacle's comprehensive remedial actions, as required by law and 

agency regulations, despite reliable, probative, and substantial evidence in 

the record showed that Pinnacle took action to prevent future violations. 

3. The Administrative Law Judge's Initial Decision reached an incoirect 

conclusion of law by finding a violation regarding Adam Stewart based 

solely on a paperwork error. 

4. The Administrative Law Judge's Initial Decision assessed a civil penalty 

under a civil penalty statute which the FAA did not assert in its Complaint or 

at any time prior to filing its Post-Hearing Reply Brief 
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5. I3y applying the maximum civil penalty assessable under 49 U.S.C § 

46301(a)(5)(A) to this case, despite the lack of any evidence in record as to 

Pinnacle's size, the Administrative Law Judge relied on information outside 

of the record to determine the applicable civil penalty statute. 

6. The Administrative Law Judge relied upon information outside of the record 

in reaching his conclusions about the perceived simplicity of Pinnacle's 

remedial actions, which resulted in his finding that Pinnacle's remedial 

actions were not comprehensive or sincere. 

7. The Administrative Law Judge erred by relying on evidence of prior 

violations that was not reliable, substantial, or probative and failed to satisfy 

the Agency's burden of proof. 
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STATEMENT OF THE CASE 

This case is to determine the appropriate amount of the civil penalty 

assessed for certain violations of the Department of Transportation's drug and 

alcohol testing requirements. Pinnacle's violations clearly presented a low material 

risk to the flying public, and the Company took comprehensive remedial action to 

correct the problems. Pinnacle also denies that a violation occurred regarding 

Adam Stewart. The Federal Aviation Administration (hereinafter "FAA") pled 49 

U.S.C. § 46301 (a)(5)(A) in its Complaint and asserted the same statute during the 

hearing. The FAA never introduced any evidence as to Pinnacle's size. According 

to the evidence introduced at trial, the appropriate civil penalty should have been 

approximately $54,000. 

From September 10-14, 2007, the FAA inspected Pinnacle's dnig and 

alcohol testing programs. Complaint ^ 3. At the conclusion of the inspection, the 

FAA proposed a $200,000 civil penalty against Pinnacle for its alleged violations 

of the drug and alcohol testing requirements of 14 C.F.R. Part 121, Appendices I 

and J. After the matter was not resolved through the administrative process, 

including an informal conference, the parties proceeded to a hearing before 

Administrative Law Judge Isaac D. Benkin (hereinafter "Judge Benkin") on 

September 1 and 2, 2009 in Memphis, Tennessee. 
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After the parties filed Post-Hearing Briefs and Post-Hearing Reply Briefs, 

Judge Benkin issued his Initial Decision Assessing a Civil Penalty of $200,000 on 

December 11, 2009. Pinnacle gave timely notice of appeal to the Administrator of 

the Federal Aviation Administration on December 15,2009. Pinnacle today 

perfects its Appeal by filing this Brief pursuant to 14 CF.R. § 13.233. 
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STATEMENT OF FACTS 

Pinnacle is a regional airline providing scheduled air transportation 

passenger service throughout the United States for Northwest Airlines and Delta 

Airlines. Pinnacle also provides ground service support to Northwest Airlines and 

Delta Airlines. From September 10-14, 2007, the Federal Aviation Administration 

inspected Pinnacle's drug and alcohol testing program. Complaint ^] 3. After the 

conclusion of the inspection, the FAA proposed a $200,000 civil penalty against 

Pinnacle for nineteen (19) alleged violations of the drug and alcohol testing 

requirements of 14 C.F.R. Part 121, Appendices I and J. After the matter was not 

resolved through the administrative process, the parties proceeded to a hearing 

before Judge Benkin on September 1 and 2, 2009. 

The evidence introduced at the hearing establishes three general categories 

of alleged violations by Pinnacle: 

1. Alleged failure to receive verified negative Department of Transportation 

(hereinafter "DOT") drug tests pursuant to Appendix I before hiring 

dispatcher Jeremy Heinbach (hereinafter "Heinbach") and mechanic Adam 

Stewart (hereinafter "Stewart"); 

2. Failure to receive a verified negative DOT drug test before transferring 

sixteen (16) current ground employees into the position of ground security 

coordinators (hereinafter "GSCs") pursuant to Appendix I; and. 
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3, Failure to properly place di.spatcher Michael Sampson (hereinafter 

"Sampson") into the random drug testing pool pursuant to Appendix J. 

None of Pinnacle's errors were deliberate, nor has the FAA alleged tliat they 

were anything more than inadvertent errors. Tran. 195:19-196:1. Pinnacle 

cooperated fully with the FAA inspection and as a result thereof took significant 

actions to prevent similar errors from occurring in the future. 

Mechanic Adam Stewart 

The FAA failed to prove a violation with respect to mechanic Stewan. 

Stewart's paperwork reflected a hire date of September 29, 2006, the same day 

Stewart took his DOT drug test. Exhibit A-3; Exhibit A-13. Pinnacle received the 

verified negative DOT drug test results the next day, September 30, 2006. Exhibit 

A-13. Stewart did not start work or training until October 16, 2006. Tran. 222:3-

7. Under Pinnacle's policies in place at the time, it is highly improbable that 

Stewart was extended an offer of employment on the same day he filled out his 

application, because any offer of employment would have been conditional upon 

his passing a criminal background check and DOT drug test. Iran. 227:9-11; 

413:7-13. Stewart began training and began working (and being paid) weeks after 

his negative results were received by Pinnacle, Tran. 224:10-17; Exhibit R-7, 

Pursuant to 14 C.F.R. Part 121, Appendix I, "-Hire means retaining an individual 
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for a safety-sensitive ftinction a.v a paid employee, as a volunteer, or through barter 

or other form of compensation." (Emphasis added). 

According to the undisputed testimony of Pinnacle's Vice President of 

People,' Mary Ann Morrow, the hire date for Stewart was actually October 16, 

2006. Tran. 222:1-8. The Human Resource clerk that processed Stewart's 

paperwork incorrectly entered a hire date of September 29, 2006. Tran. 221:4-22. 

Even under the guidance letter issued by Rebecca MacPherson, Assistant 

Chief Counsel of the FAA,' this timeline docs not establish a violation because 

"the employer is in the best position to know whether the individual has been 

hired," as long as that date is before the individual has begun training. Exhibit A6, page 2, \ 2. 

Dispatcher Jeremy Heinbach 

Pinnacle admittedly hired Heinbach on July 30, 2007, three days prior to 

receiving his verified negative DO T pre-employment drug test results. Exhibit A4; Exliibit R-Il. However, Heinbach did not begin work or training until August 

14, 2007, well after Pinnacle received his verified negative DOT pre-employment 

drug test results. Tran. 459:22; 460:14-20. Despite the "literal" violation involved 

in Heinbach's case, Heinbach posed no material risk to the flying public or the 

' Tlie People Dcpiirtnient is Pinnacle's equivalent of whai is tominonly called Human Resources-

^ Pinnacle disputes llic application and enforceability of this guidance letter. The guidance letter was only 

dislributed TO the Regional Airline Association and has never been made pan of the regulations under Appendix 1 or 

J, either in ii.'i entirety or via any change in the language of the regulations. 
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security of safety sensitive information. Heinbach had no training in his safety 

sensitive function, nor did he perform a safety sensifive fiinction, until after 

Pinnacle received his verified negative results. 

The Ground Security Coordinators 

The violations alleged by the FAA concerning the GSCs did not constitute a 

material risk to the flying public or the security and safety of the airline industry. 

Pinnacle administers a non-DOT pre-employment drug test to all new employees 

that do not fall under the DOT drug testing requirements. 'Iran. 242:21-243:6. 

Pinnacle's non-DOT test is designed to mirror the DOT test, Tran. 498:4-11. 

Pinnacle's non-DOT random testing program also tests the same percentage of 

employees as are required under the DOT random drug testing program. Tran. 

235:5-8; 235:14-21. With only two exceptions, the non-DOT test collection sites 

were instructed by Pinnacle to follow the same procedures and test for the same 

drugs as the DOT test. Tran. 518:6-14.^ Although the failure to administer the 

DOT drug test is admittedly a violation under of the letter of Appendix I, the 

policy rationale of protecting the flying public was largely met by Pinnacle's nonDOT drug testing program. 

^ In .some instances during the relevani time period. Pinnacle's non-DOT test exceeded the rcquireincnLs of the DOT 

drug test by testing for two additional substances. Tran. 234:5-9. Additionally, some of the samples were not taken 

using a "split" sample, as the DOT requires. Tran. 50<5:l-7; 508:16-21. The purpose of a "split" sample is to verify 

a po.<iiTive drug test result. Tran. 502:7-14. However, asplii sample was not necessary because all of the employees 

at issue received negative drug test results. Tran. 236:13-22; 333:22-334:2; 334:18-335:1. 
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Dispatcher Michael Sampson 

The violation concerning Sampson's omission from the DOT-random pool 

was the result of an inadvertent computer error. Tran. 215:20-216:13. Pinnacle 

has since implemented a new Human Resources management system, Lawson, that 

will prevent future submission errors of this nature. Tran. 216:14-16; 219:21-

220:3. Because of the inadvertent nature of the violafion and Pinnacle's remedial 

steps to correct the issue with Sampson and prevent future submission errors, the 

violation concerning Sampson is a minor violation that should not result in a large 

fine against Pinnacle. 

Pinnacle's Remedial Measures 

In addition to the absence of any material risk of harm to the public from 

these alleged violations, Pinnacle's remedial actions to ensure future compliance 

fijrther warrant a reduction in any civil penalty. Pinnacle implemented enhanced 

manager training on drug and alcohol testing requirements. Tran. 248:15-18. 

Pinnacle also began implementing its electronic training programs during the time 

of the FAA inspection. Tran. 249:14-17. Once the online system became 

available. Pinnacle changed the format of the training so that managers could 

access the training materials online at any time, without having to locate bard-copy 

handouts for reference. Tran. 248:21-249:8; 250:22-251:3. Managers have since 

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then commented positively on the convenience of referencing the online materials. 

Tran. 250:22-251:3. 

Pinnacle also implemented more processes to verify that all trainees for 

safety sensitive functions have passed the DO'I" drug rest. When individuals are 

selected for training, the training department sends that list to the drug and alcohol 

department. Tran. 252:1-5. The drug and alcohol program manager ensures that 

Pinnacle has received a verified negative pre-employment DOT drug test on those 

individuals and lets the training department know who is eligible to attend class. 

Trail. 252:5-14, Once the individuals actually arrive for their class, the drug and 

alcohol program manager again checks the actual roster of those present to be sure 

that Pinnacle has received a verified negafive pre-employment DOT test. Tran. 

252:17-21. If Pinnacle has not yet received a particular employee's verified 

negative drug test results, he or she is sent home and not allowed to attend training 

until the negative result is received. Tran. 253:2-4, 

In addition to these specific drug-testing improvements. Pinnacle upgraded 

its Human Resources technology to allow for better monitoring of drug test results 

and hire dates. Tran. 219:12-220:3. At the time of the F/VA inspection. Pinnacle 

was using an older computer system known as HRizon to track employee data. 

Tran. 218:22-219:5. Shortly after the inspection. Pinnacle replaced HRizon with a 

new system known as Lawson. Tran. 219:16-18. The primary difference between 

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the two systems is that Horizon had a very limited number of fields to track 

employee data; whereas, Lawson contains about 100 fields that can be customized 

to suit Pinnacle's needs. Tran. 219:6-220:3. Lawson gives Pinnacle the ability to 

better verify that employees have been DOT drug tested prior to hire and safety 

sensitive training and are properly placed in the random DOT pool. Tran. 219:21-

220:3. 

In addition, Pinnacle implemented a comprehensive two-tiered audit system 

to catch and resolve violations before they rise to a systemic level. Tran. 247:2-5. 

Pinnacle's third party administrator now audits the drug and alcohol program 

quarterly and Pinnacle's Safety Department conducts random audits on the drug 

and alcohol program. Tran. 247:7-16. These additional audits by the third party 

administrator were implemented within a few months of the FAA's inspection. 

Tran. 247:17-248:5. The Safety Department audits were implemented early the 

following year. Tran. 248:6-10. 

In assessing a civil penalty of $200,000, Judge Benkin failed to adequately 

consider the mitigating factors present in this case, as required by law, precedent, 

and public policy. Therefore, Pinnacle requests tliat the civil penalty amount be 

reduced to reflect the totality of the circumstances surrounding these alleged 

violations, including Pinnacle's non-DOT drug testing program, the real risk of 

harm to the flying public, and Pinnacle's subsequent remedial actions. 

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BASIS FOR APPEAL TO THE ADMINISTRATOR OF THE FAA 

I. STANDARD OF REVIEW. 

Pursuant to 14 C.F.R. § 13.233(b), there are three standards of review of an 

Initial Decision issued by an Administrative Law Judge, depending on whether 

findings of fact, conclusions of law, or prejudicial errors are implicated. For 

findings of fact, the FAA dccisiormiaker determines only whether the 

Administrative Law Judge's findings are supported by a preponderance of reliable, 

probative, and substantial evidence, 14 C.F.R. § 13.233(b)(1). For conclusions of 

law, the FAA decisionmaker determines whether they were made in accordance 

with law, precedent, and public policy. 14 C.F.R. § 13.233(b)(2). Finally, the 

FAA decisionmaker determines whether the Administrative Law Judge committed 

any prejudicial errors. 14 C.F.R. § 13.233(b)(3), 

II. JUDGE BENKIN'S CONCLUSIONS OF LAW WERE NOT IN 

ACCORDANCE WITH LAW. PRECEDENT. AND PUBLIC POLICY. 

A. Judge Benkin Erred by not Considering the Low Material Risk to 

the Flying Public. 

The FAA's internal guidelines require the agency to consider the risk of 

harm posed by the violation(s) in assessing and proposing a civil penalty. FAA 

Order 2150.3A, p. 2 (requiring the FAA to consider the "significance in degree of 

hazard to the safety of other aircraft, persons or property in the aircraft or on the 

ground, created by the alleged violation"). Although the ALJ is not bound by the 

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F/VA's internal regulations, failure to assess a penalty consistent with them is 

reversible error. See In The Matter of Northwest Airlines, FAA Order No. 90-37, 

1990 WL 656278, at *8-10 (Nov. 7, 1990), 

I. Judge Benkin erred by failing to consider the low material risk 

of harm to the flying public because all sixteen Ground Security 

Coordinators were tested under Pinnacle's non-DOT druiJ and 

alcohol testing program. 

By a preponderance of uncontested evidence. Pinnacle proved that it has in 

place a non-DOT drug testing program, that all sixteen of the GSCs at issue were 

tested within that non-DOT drug testing program prior to training in a safetysensitive position, and that the non-DOT dnig testing program in place at Pinnacle 

substantially reduced the risk of a drug user serving in a safety sensitive function. 

The reasons given by Judge Benkin for his failure to consider Pinnacle's 

non-DOT test results focus on the differences between the DOT and non-DOT 

drug testing programs and his fear that Pinnacle views its non-DOT program as a 

replacement of the DOT program. Initial Decision at 5-6, Pinnacle absolutely 

does not contend that the non-DOT program serves as a sufficient replacement for 

the DOT program, and has never so much as implied such an argument. Further, 

the differences between the tests identified by Judge Benkin are not relevant to the 

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substantially lower risk that a drug user will seive in a safety-sensitive flmction 

that the non-DOT drug testing program provides."* 

As a policy matter, the deterrent effects of the DOT drug testing program 

were largely satisfied by Pinnacle's non-DOT drug testing program. Once an 

employer receives a verified negative pre-employment DOT drug test result, that 

employee is never again subject to a scheduled DOT drug test and is instead only 

subjected to DOT random drug tests. Iran, 50:15-21 (admission by counsel for the 

FAA that the pre-employment test is "a one-time requirement" and is then in "a 

DOT-required random drug and alcohol testing program for their ongoing 

testing"). The GSCs all had received negative results from the non-DOT drug test 

{See Exhibits R-17 to R-34, R-36, and R-38 to R-4I) and were subject to random 

drug testing at the same rate as Pinnacle's DO'f employees. Tran. 235:5-21 (on a 

percentage basis, Pinnacle randomly drug tests the same amount of employees 

under both the DOT and non-DOT drug testing programs). 

Appendix T contains one excepfion in which an employee would be subject 

to another DOT drug test other than the random program. If the employee is not 

transferred to a safety sensifive function within 180 days of the verified negative 

DOT drug test result he or she should be rctested. 14 C.F.R. Part 121 Appx I 

' Complainant's Post-Hcaring Brief ai 16 references Virynia Lozada's testimony about FAA audits of collection 

facilities and diflcrences she allegedly observed. These comparisons arc irrelevant to Pinnacle's program .ind ^yere 

the subject of a smlaincd obieciion for ifrelevance, Lozada did not observe collection procedures for Pinnacle and 

testimony regarding other eompanys' programs with a given contractor is completely irrelevant. Indeed, Lozaia 

may have oh.'served non-aviation drug icsis, but her testimony did not establish the foundation for her speculation. 

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(V)(A)(3). The reason behind this re-testing requirement is that the individuals are 

not "brought under an FAA drug-testing program" until they are transferred to 

safety-sensitive functions. 14C.F.R. Part 121 Appx I (V)(A)(3). After a verified 

negafive pre-employment DOT drug test, the only element of the DOT drug testing 

program that continues to ensure drug users are not serving in safety-sensitive 

positions is the random drug testing requirement. Iran. 50:15-21. The GSCs were 

subject to random drug-testing under Pinnacle's non-DOT program at the same 

percentage as DOT-tested employees, Tran. 235:5-8; 235:14-21. Therefore, they 

were subject to the same accountability and deterrent effects as the DOT program 

would have produced. 

Judge Benkin also found that there were material differences between 

Pinnacle's non-DOT drug tests and the DOT program. Initial Decision at 5, 

Although differences do exist, those differences do not alter the dramafically 

decreased risk that a drug user will be employed in a safety sensitive function. The 

FAA pointed out that Pinnacle's non-DOT drug tests in some instances did not 

include a split sample. Tran. 506:1-7; 508:16-21. The split sample is used to 

verify a positive drug test result and can serve as a procedural safeguard to ensure 

that the employee is not denied employment without doubly verifying a positive 

result. Tran. 502:7-14. However, failure to use a split sample in tliis case did not 

in any way increase the risk to the flying public because all sixteen GSCs received 

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negative test results. As a result, the GSCs posed a significantly decreased risk to 

the safety and security of Pimiacle's customers compared to employees with no 

previous drug screening. 

Judge Benkin also noted that Pinnacle's non-DOT program in some 

instances tested for two additional substances than the DOT program allows. 

Initial Decision at 5. During the hearing on this matter, counsel for the FAA 

asserted that the Administrator has ruled that testing for additional drugs under the 

auspices of a DOT drug testing program is unacceptable. Tran. 389:22-390:5. The 

case the FAA's counsel proposed stood for that proposition, In the Matter of 

Stebbins Aviation, Inc., FAA Order No. 2006-3, 2006 WL 465373 (Feb. 7, 2006), 

is inapplicable to this case. In Stebbins, the carrier failed to implement its F AAapproved DOT drug testing program and failed entirely to establish an alcohol 

program. Id at *3. Stebbins also asserted that it could not find its drug testing 

records for the entire year of 1997, but that it had accomplished all required testing 

for that year. Stebbins, FAA Order No. 2006-3, at *2. The FAA additionally 

alleged a violation of the regulations because it asserted that the carrier tested for 

more than the permitted substances in one DOT pre-employment test and random 

drug tests and set "impermissibly restrictive" limits in random drug tests. Id. The 

Administrator stated only that the carrier's assertion that the FAA approved of its 

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more stringent drug testing was unsupported and that the ALJ did not wcigli 

heavily that particular violation in determining the sanction. Id. at *4. 

Pinnacle does not assert that the FAA approved its non-DOT drug testing, 

nor that the non-DOT program in any way should replace the DOT program. The 

most important distinction between Pinnacle and Stebbins is that Pinnacle's testing 

for additional drugs was not done under the auspices of a DOT drug testing 

program. Stebbins, FAA Order No. 2006-3, at *6. In Stebbins, the Administrator 

explained that Fourth Amendment and "other concerns" made it "inadvisable to 

permit employers to test the DOT sample for additional drugs" "though an 

employer could test for additional drugs using a second, separate sample." Id. at 

*6, n.l2. Because Pinnacle's non-DOT test was a separate, distinct, non-DOT 

sample that was not a replacement of the DOT test but merely mitigated the risk 

involved in this case, Stebbins does not control. Therefore, the FAA's argument 

on this point is wholly without merit. 

Ihe remainder of the distinctions between Pinnacle's non-DOT test and the 

DOT test fail to rebut the mitigation value of the non-DOT drug testing program in 

this case. The FAA asserts that the levels at which the dmgs were tested arc not 

indicated in Pinnacle's non-DOT program and therefore may not be the same, that 

the Ivlcdical Review Officer (hereinafter "MRO") does not certify the test as 

"conducted in accordance with 49 CRF Part 40," (Tran. 563:3-7) and that Pinnacle 

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does not know absolutely that all of its requests to its third party adjninistrators, 

MROs, and collection sites are being followed. See, e.g., Tran. 551:18-552:17; 

553:2-12, First, Pinnacle has modeled its non-DOT drug testing program after the 

DOT program and requested the levels be set at the DOT required levels. Tran. 

391:22-392:17. Second, there is no reason or requirement for an MRO to certify a 

non-DOT test as compliant with DOT regulations, and doing so may in fact put the 

MRO in violation of the FAA's regulations because the DO I" collection form is 

different from the non-DOT form, Tran. 571:17-18. Certifying a test conducted 

on a non-DOT form as DOT compliant would be a violation because simply using 

the different form makes the test non-DOT compliant. Tran. 571:17-18. Pinnacle 

requests its collection sites, MROs and third party administrators for the non-DO f 

program mime the DOT scheme as closely as possible and conducts audits to 

ensure its wishes in tills area are fulfilled. Tran. 400:19-401:3. In addition, 

Pinnacle uses the same collection sites, test centers, and MROs as Pinnacle's 

parallel DOT drug testing program (Tran. 230:14-19; 233:16-17), which ensures 

that the sites actually know the proper procedures. Pinnacle's decision to establi.sh 

a completely drug-firee workplace (Tran. 431:2-6) and to drug test all employees 

should not be completely ignored in assessing the risk involved with the GSCs at 

issue here, and Judge Benkin's failure to consider the non-DOT drug tests as 

mitigating is without basis in law or policy. 

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2. Judge Benkin erred in assessing the maximum civil penaltv for 

Jeremy Heinbach despite a low material risk to the flvin2 

public. 

With respect to I leinbach. Pinnacle has also shown a low material risk of 

harm to the flying public. Pinnacle admits that it hired Heinbach prior to receiving 

his negative DOT drug test results; however, Heinbach did not begin work or 

training until approximately two weeks after Pinnacle received his verified 

negative DOT pre-employment drug test results. Tran. 459:20-22. Wliile Pinnacle 

recognizes that this is a violation, it should not be considered a "maximum" 

violation because of tlic low material risk involved. 

Although a violation of Appendix I, Heinbach's situation posed no material 

risk to airline safety and Pinnacle still complied with the essential purpose of the 

regulation. Pinnacle admits that Heinbach was hired on July 30, 2007. Pinnacle 

received Heinbach's verified negative DOT drug test results on August 2, 2007. 

Exhibit R-11. He began company indoctrination training on August 14, 2007. 

Tran. 459:20-22. The letter to the Regional Airline Association from Rebecca 

MacPherson states that the creation of trainee positions to circumvent the prior-tohire drug testing requirement was inadequate because trainees were still exposed to 

safety sensitive information. Exhibit A-6, p. 2, ^ 2. Becau.se Heinbach did not 

receive any safety sensitive information before Pinnacle received his verified 

negative pre-employment drug test, Heinbach posed no material risk to aviation 

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safety and the purpose of the prior-to-hire requirement was still fiilfilled. 

Consequentiy, Pinnacle should not be assessed the maximum penalty for this 

violation. 

3. Judge Benkin erred in assessing the maximum civil penaltv for 

Michael Sampson despite a low material risk to the flying 

public. 

Sampson's omission fi-om the DOT random testing pool also posed a low 

material risk to the flying public. He was properly pre-employment tested and, 

because his omission was the result of an inadvertent computer error, there was no 

way he could have known he was not subject to random drug tests. As a result, the 

deterrent effects identified by Amy Frankel as the reasons for random drug testing 

were still largely satisfied. 

Sampson's omission from the random drug testing pool was in error, but the 

actual risk of harm associated with the risk was minimal. Sampson was properly 

administered the pre-employment DOT drug test. Despite being properly 

classified and entered into the system by Pinnacle, he was inadvertently not 

properly transmitted to the third party administrator by the human resources 

software Pinnacle used at the time. Tran. 216:8-10. Because the omission was the 

result of a computer error, Michael Sampson could not possibly have known that 

he was omitted from the random pool and therefore the deterrent effects of 

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knowing he was in the random pool and of the random testing requirement were 

still satisfied. 

B, Judge Benkin Erred by Finding that Pinnacle's Remedial Actions 

did not Substantiate a Lower Civil Penalty. 

While Judge Benkin acknowledged Pinnacle's many remedial actions to 

avoid drug testing violations in the future, he improperly dismissed them solely on 

the basis of Pinnacle's alleged violation history (itself based on unreliable, 

incomplete evidence, discussed below). However, Pinnacle has proven by a 

preponderance of reliable, probative and substantial evidence that it took 

comprehensive remedial actions to correct the violations alleged in this case 

(Detailed in the Facts, above, at 10-12). The FAA's assertions, which Judge 

Benkin apparently ascribes to (Initial Decision at 12), that Pinnacle's violation 

history "indicates that any corrective action taken by Pinnacle has not been 

effective (Complainant's Post-Hearing Brief at 26)," are unpersuasive and 

unsupported. The inspection at issue took place in 2007. Complaint ^ 3. The 

FAA has not introduced any evidence to corroborate its speculation that Pinnacle's 

remedial actions have been ineffective. Indeed, at tlie time ofthe hearing, Virginia 

Lozata testified that Pinnacle has recently been inspected. Tran. 133:15-134:1. 

There is not testimony that Pinnacle had any new violations since the 2007 

inspection. Additionally, Pinnacle's violation history shows only that Pinnacle had 

a history of some violations; it is not probative ofthe value of Pinnacle's actions in 

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response to the inspection at issue here or Pinnacle's behavior going forward. 

Indeed, considering alleged prior violations as not only aggravating but also as 

precluding unrelated mitigation, as the FAA suggests, is directly contrary to the 

Administrator's stated policy that sufficient corrective action can be mitigating. In 

the Matter ofWestair Commuter Airlines, Inc., FAA Order No. 93-18, 1993 WL 

833102, at *5 (June 10, 1993). 

Pinnacle took many steps, some swift and comprehensive, and others which 

required long-term implementation, to correct the issues revealed by the FAA's 

inspection. Such actions included retraining managers on drug and alcohol testing, 

redesigning the training resources available to those managers to make them more 

accessible (Tran. 248:21-249:8), implementing a two-tiered audit system for 

ensuring internal compliance (Tran. 247:2-248:10), establishing new procedures 

for ensuring safety-sensitive employees have received verified negative DOT drug 

test results prior to training (Tran. 252:1-253:4), and implementing a new Human 

Resources management system that allows for better tracking of employees' drug 

testing, hire, and training dates. Tran, 219:12-15; 219:21-220:3. 

Judge Benkin heavily criticized Pinnacle's remedial actions. In his decision. 

Judge Benkin points out that Pinnacle is just "taking the steps that it should have 

taken years ago..." and Pinnacle's corrective actions "merely represent a case of 

locking the bam door afler the horse has been stolen." Initial Decision at 12. This 

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criticism of Pinnacle's remedial actions is not in accordance with applicable 

precedent. "There is ample precedent for reducing the amount of a civil penalty to 

reflect the alleged violator's investment in better training for its employees..." In 

the Matter of Mole-Master Services Corp., DMS No, FAA-2008-()69l, 2009 WL 

348181, at *5 (Feb. 10, 2009) (reducing the penalty fi-om $29,100 to $25,000 when 

the defendant implemented a "sketchy" training program a year and seven months 

after the violations). In F ^ v. Husky Corp., FAA 2007-0 [20, lOOH WL4911175, 

at *6 (Oct. 31, 2008), Administrative Law Judge Richard C, Goodwin ruled that 

"swift action designed to better ensure future compliance may warrant a significant 

reduction in civil penalty." In that case. Judge Goodwin held that requiring 

employees to undergo hazardous materials training following an investigation by 

the FAA that proved Husky had transported hazardous materials without following 

the requisite safeguards was a sufficient remedial action. Id. As a result, a civil 

penalty of $8,000 was assessed against Husky as opposed to the $1.5,000 sought. 

Id 

Pinnacle's remedial actions, in the present case, far outweigh those taken in 

Husky, In addition to requiring training for its employees. Pinnacle also redesigned 

the training resources available to managers to make them more accessible (Tran. 

248:21-249:8), established new procedures for ensuring safety-sensitive employees 

have received verified negative DOT drug test results prior to training (Tran. 252:1-

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253:4), implemented a two-tiered internal audit system for ensuring compliance 

(Tran. 247:2-248:10), and put into operation a new computer program to better 

track relevant drug testing data. Consequently, Judge Bcnkin's harsh criticism of 

Pinnacle's remedial efforts was unwananted and not in line with the applicable 

precedent. 

C. Judge Benkin Erred in Finding a Maximum Violation Regarding 

Adam Stewart Based on a Mere Paperwork Error. 

Uncontested evidence establishes that Pinnacle received Stewart's verified 

negative DOT pre-employment drug test results before Stewart began training or 

work. Stewart's hire date was incorrectiy fisted as September 29, 2006 on 

Pinnacle's HR paperwork. Tran. 221:7-22. Pursuant to 14 C.F.R. Part 121, 

Appendix I, '""Hire means retaining an individual for a safety-sensitive function as 

a paid employee, as a volunteer, or through barter or other form of compensation." 

(Emphasis added). As Stewart was not "hired" prior to the receipt of his negative 

drug test by Pinnacle, there has been no violation ofthe regulation. 

Evidence from the hearing clearly demonstrated that Stewart could not have 

been hired on September 29,2006 as his paperwork mistakenly stated. Pinnacle's 

Vice President of People, Maiy Ann Morrow, explained that under Pinnacle's 

policies in place at the time, it is highly improbable that Stewart was extended an 

offer of employment on the same day he filled out his application because any 

offer of employment would have been conditional upon his passing the requisite 

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background check and DOT drug test. Tran. 227:9-11; 413:7-13. The FAA's 

Virgina Lozoto agreed that because the employer determines the hire date, the 

employer should also be able to correct errors in the hire date. Tran. 139:6-15. 

Judge Benkin suggested that Pinnacle's Vice President of People, Mary 

Ann Morrow, was not credible because she had no personal knowledge of when 

Stewart was hired. Initial Decision at 4. However, Ms. Morrow is the Vice 

President ofthe department in charge of hiring and can clearly speak to Pinnacle's 

ordinary business practices. Ms. Morrow was describing Pinnacle's regular 

business practice of requiring satisfactory completion of a drug test and a 

background check as a contingency of his ofTer of employment with Pinnacle. It is 

unrefuted that Pinnacle has a policy of conducting background checks on 

individuals prior to hiring them. Indeed, this practice is required by TSA 

regulations requiring a backgroimd check prior to giving an employee access to 

secure areas ofthe airport. See 49 C.F.R. § 1544.229 (detailing fingerprint based 

criminal history records check as prerequisite to unescorted access). Clearly, 

Pinnacle does not drug test every potential employee prior to interviewing them 

and even determining whether they are qualified candidates. Such a practice 

would be costly and wasteful, and clearly not what is contemplated under the 

regulations. 

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Judge Benkin's assessment of Ms. Morrow's credibility was based in part on 

what he viewed as a lack of corroborating documents regarding Stewart's hire date. 

Initial Decision at 4. Exhibit R-7, Adam Stewart's timecard, was introduced in 

support of Ms. Morrow's testimony. Judge Benkin dismissed this evidence as not 

corroborating because he observes that "an employee may be, and usually is, 

"hired" on a date before the employee receives his or her first pay check." Initial 

Decision at 4. However, Ms. Morrow testified that Pinnacle considered Stewart's 

hire date to be October 16th and determining the hire date is within the discretion 

ofthe airline. See Exhibit A-6. Stewart's timecard proves that he did not work or 

train before October 16th; therefore, Pimiacle's decision to consider that his hire 

date is not inconsistent with the regulations. 

Alternatively, if a violation regarding Stewart is found, only a minimum 

penalty should be assessed for that violation. In the Matter of Eastern Air Center, 

the Administrator stated that "there is no reason to impose more than a minimum 

civil penalty in cases involving a paperwork discrepancy when that discrepancy did 

not affect safety." FAA Order No. 2008-3, 2008 WL 345386, at *4 (Jan. 28, 2008) 

(assessing the minimum penalty for flying without the proper certification). In the 

present case, Stewart posed no threat to safety as he did not begin working until 

weeks after Pinnacle received his negative DOT-drug tests. Accordingly, Judge 

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Benkin erred by finding a violation against Pinnacle based on a mere paperwork 

discrepancy, 

D. Judge Benkin Erred in Assessing a Civil Penalty Under a Statute 

which the FAA did not Assert. 

In his Initial Decision at *4, Judge Benkin cites 49 U.S.C. § 46301(a)(5)(A) 

as the applicable statute, under which "Pinnacle is liable for a civil penalty not to 

exceed $25,000 for each violation," This is a clear error of law. 49 Ll.S.C. § 

46301(a)(5)(A) relates to small business concerns and individuals, and provides a 

maximum civil penalty of $10,000,"^ as modified by 14 C.F.R. 13.305 to account 

for inflation.^ In its Complaint, during discovery, at the hearing, and in its PostHearing Brief, the FAA continued to erroneously assert that 49 U.S.C. § 

46301(a)(5)(A) was amended to increase the penalty to $25,000, despite a 

complete lack of statutory support for that contention. 

The FAA has failed to produce any evidence in the record concerning 

Pinnacle's size for the court to determine whether the statute cited by the FAA is 

actually appropriate in this case, Tlierefore, the maximum civil penalty in this case 

should at most be $11,000 per violation pursuant to the statute cited by the FAA in 

its Complaint and the statute cited by Judge Benkin in his Initial Decision. 

M9 U.S.C. § 46301(1) iiKorporaies by reference the definition ofsmall business concern from 15 U.S.C. § 632. In 

accordance with 15 IJ.SC, § 632, the she standards for small business concerns are updated annually and currently 

published at l.3C.I'.R. § 121.201, Pinnaclc'.s industry classilkation is Subscclor481, "Air Transportation.'" Undei" 

The relevant North American Industry Classification System code, 481111 for "Scheduled Air Passenger 

Transportation," a small busine.s.s concern may have a maximum of 1,500 employees. 

* Bringing the maximum penally per violation to $11,000 pursuant lo 14 C.F.R, 13.305(a)(3). 

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When considering the available range of penalties, the Administrator should 

consider that $209,000 would have been the statutory maximum the FAA could 

have proposed under its cited statute if all alleged violations were true and the 

$200,000 assessed is very near the maximum availableIll. JUDGE BENKTN COMMITTED PREJUDICIAL ERROR WHEN HE 

RELIED ON INFORMATION OUTSIDE OF THE RECORD FOR 

HIS DECISION. 

A. Judge Benkin Erred by Relying on Information about Pinnacle's 

Size that was Outside of the Record. 

In discussing a civil penalty that will encourage future compliance, Judge 

Benkin states that "no evidence... suggests that [Pinnacle] can in truth be 

considered a small business." Initial Decision at 16. Pinnacle only contends that it 

is entitled to the treatment under the statute that both the FAA and Judge Benkin 

cited, 49 U.S.C. § 46301(a)(5)(A), which assesses a $10,000 maximum penalty. 

Further, proof of Pinnacle's size is the burden ofthe FAA, who failed 

entirely to introduce any evidence into the record as to Pinnacle's size. In Eastern 

Air Center, FAA Order No. 2008-.1, at *4-5, the Administrator held that a civil 

penalty handed down by Judge Benkin was inconsistent with agency policy when 

"meager evidence" was introduced about the carrier's size and reduced the fine 

accordingly. In that case, the Administrator found that Judge Benkin imposed the 

penalty based on an assumption ofthe carrier's size when the FAA failed to 

introduce adequate evidence. Id. at *4. As a result, the Administrator classified 

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the carrier in the smallest size category for purposes of determining the proper civil 

penalty. Id. In the present case, the FAA failed to introduce any evidence with 

respect to Pinnacle's size. Likewise, Judge Benkin erred in assuming that Pinnacle 

was subiect to the statute which encompasses a $25,000 maximum penalty for 

larger size carriers. 

More concerning is the fact that Judge Benkin apparently looked outside of 

the record for evidence of Pinnacle's size to determine that Pinnacle is not a small 

business concern and an amount of a civil penalty that would cause a "severe 

blow" to Pinnacle. In its Post-Hearing Reply Brief at 12, the FAA attempted to 

state how many employees Pinnacle had at the time ofthe violations. However, 

pursuant to 14 C.F.R. § 13.230, the Post-Hearing Reply Brief itself is not a part of 

the record and the notation contains no support from the record. The regulations 

require the ALJ to issue an initial decision "only if the decision or ruling is 

supported by, and in accordance with, the reliable, probative, and substantial 

evidence contained in the record." 14 CF.R. § 13.233 (emphasis added). 

Additionally, Judge Benkin's initial decision at 1, n.l, indicates Pinnacle's parent 

company's stock symbol, which is also outside ofthe record, further indicating that 

he sought out information outside the record regarding Pinnacle's size and 

fmancials. 

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Because the size ofthe company and maximum civil penalty available under 

the applicable statute speak loudly to the deterrent effects of any civil penalty 

amount, including such information outside ofthe record is higlily prejudicial and 

surely resulted in a higher civil penalty than would have been assessed had the 

record been the only source of information, 

B. Judge Benkin Erred by Relying on Information Outside of the 

Record Regarding Perceived Ease of Pinnacle's Remedial Actions. 

Despite a lack of any evidence in the record, Judge Benkin again references 

Pinnacle's size when discussing its remedial actions. Initial decision at 12. Judge 

Benkin states: "the acquisition of a new computer program is a relative |sicl easy 

step to take; why would an airline of Pinnacle's size and resources continue to 

depend on a computer program that its own staff characterizes as 'old and 

antiquated?'" Initial Decision at 12. 

The relative ease or difficulty of establishing a new computer program to 

manage such an essential part of a business as hiring, tenninations, drug testing, 

payroll, etc., is outside the record. Additionally, common sense would indicate 

that it would depend on the size ofthe business, how comprehensive the changes 

are, the technological knowledge of those charged with implementing the program, 

and various other factors. To draw a negative inference that Pinnacle did not care 

about drug testing because it had an old computer system, based on infomiation 

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outside the record about relative ease of establishing a new one, is arbitrary and 

prejudicial. 

IV. JUDGE BENKIN ERRED BY RELYING ON PRIOR VIOLATIONS 

THAT NVERE NOT SUPPORTED BY A PREPONDERANCE OF 

RELIABLE. SUBSTANTIAL. OR PROBATIVE EVIDENCE. 

Judge Benkin's conclusion that the five alleged prior violations should all be 

considered as aggravating in this case is inconsistent with applicable law, 

regulations, and public policy. The FAA carries the burden of proof in civil 

penalty actions, except for affirmative defenses. 14 C.F.R. § 13.224(a). The FAA 

failed to introduce a preponderance of reUable, substantial, or probative evidence 

into the record to support its allegations that Pinnacle had five instances of 

previous violations that should be considered aggravating in this case. 

The FAA produced only ambiguous summary reports firom the "EIS system" 

to support its contention tliat Piimacle had a history of violations. Tran 160:21; 

Exhibits A-8 through A-12. The reports contain abbreviated language and limited 

amounts of information regarding the purported violations and history ofthe 

actions. See, e.g., Exhibits A-8 to A-12 (Exhibits themselves demonstrating lack 

of clarity, abbreviations, and limited information); Tran. 181:5-15 (report docs not 

indicate how many violations were involved); Tran. 164:6-16 (FAA's Amy 

Frankel guesses that "final amount" indicates that Exhibit A-9 was a settlement). 

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02/22/201 0 14:0 0 FAX 202493514 2 FAA + DMS 0038/041 

Significantly, the largest alleged prior violation for $27,000, Exhibit A-10, is 

ambiguous with regard to the final action taken because it states "00 CIVIL 

PENALTY" instead ofthe consistent language from the other four reports which 

state "20 ORD ASSESSING CP." See, eg,. Exhibits A-8; A-9; A-11; and A-12. 

At 14 C.F.R. Part 13.16(n), the regulations discuss a compromise order in which 

the FAA makes no finding of a violation, but the alleged violator still pays. Such 

an order cannot be used as evidence of a prior violation in any subsequent civil 

penalty proceeding. 14 C.F.R. § 13.l6(n)(iii). The different demarcation on the 

EIS report may indicate that a different type of disposition was reached, but the 

insufficiency ofthe documents render any attempt to decipher them pure 

speculation. 

Despite the FAA's burden to establish prior violations, it failed to provide 

the actual Orders Assessing Civil Penalties that it claims establish prior violations, 

or any other non-ambiguous, reliable, substantial evidence to support its claims, 

and therefore failed to carry its burden of proof The FAA instead relied only on 

partial, unreliable, redacted reports that even the FAA's witness had difficultly 

deciphering. See, e.g., Iran. 162:15-19 (difficulty ascertaining the year of 

inspection); Tran. 164:6-11 (unclear whether final amount was a settlement); Tran. 

181:5-l 1 (unclear how many alleged violations were cited in Exhibit A-8), 

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Further, Pinnacle had no opportunity to review the alleged prior violations 

that the FAA used against it prior to the hearing. Objection at Tran. 154; 12-

155:12. Therefore, Pimiacle was not afforded an opportunity to produce its own 

reliable evidence in the record that tliese alleged prior violations may have, in fact, 

been consent orders without findings of violations or compromise orders as 

contemplated by 14 C.F.R. § 13.16(n). 

Because the FAA failed to introduce a preponderance of reliable, substantial, 

or probative evidence regarding Pinnacle's violation history, the civil penalty 

assessed by Judge Benkin was grossly excessive and should be reduced 

accordingly. 

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CONCLUSION AND RELIEF REOUESTED 

Based upon the foregoing, Pinnacle requests that the Administrator reduce 

the civil penalty proposed by Judge Benkin so that is in accordance with law and 

public policy and supported by a preponderance of reliable, substantial, and 

probative evidence in the record. 

WI lEREFORE, PREMISES CONSIDERED, Appellant respectfully 

requests that the Administrator issue an Order Assessing a Civil Penalty for not 

more than $54,000. 

Submitted: February 4, 2010. 

By: 

W. Chris I larnson (TN Bar #018689) 

PINNACLE AIRI.JNES, INC 

IM HOUSE COUNSEL 

1689 Nonconnah Boulevard, Suite 111 

Memphis, Tennessee 38132 

Telephone: (901) 348-2483 

Fax: (901)348-2493 

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02/22/201 0 14:00 FAX 2024935142 FAA + DMS 0041/04 1 

CERTIFICATE OF SERVICE 

The undersigned certifies that a true and correct copy ofthe foregoing will 

be sent via FedEx to the following: 

Hearing Docket Clerk 

Federal Aviation Administration 

AGC-430 

Wilbur Wright Building - Suite 2W1000 

600 Independence Avenue, S.W. 

Washington, D.C. 20591 

And by e-mail and regular U.S. Mail to the following: 

Isaac D. Benkin 

Administrative Law Judge 

Office of Hearings 

Department of Transportation (M-20) 

Room El 2-320 

1200 Ne Jersey Ave., S.E. 

Washington, D.C. 20590 

David.Bcnkin(^dot.gov 

Laura Ponto, Attorney 

Enforcement Di vision/AGC-3 00 

Office ofthe Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Laura.Ponto(^faa.gov 

This the 4'" day of February, 2010. 

W. Chris Harrison 

36