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Before (he U.S. DeparCinent of Transporlutiun 

Federal Aviation Administration 

In the matter of ) 

) 

PINNACLE AIRLINES, INC. ) 

) 

) 

DMSNo. FAA-2009-0180 

FAA Docket No. CP09SO0002 

COMPLAINANT'S REPLY BRIEF 

Pursuant to 14 C.F.R. § J 3.233(e), Complainant, Federal Aviation Administration 

(FAA), files this Reply Brief in response to the briefof Appellant Pinnacle Airlines, Inc., 

(Appellant or Pinnacle). 

Statement of the Case 

The FAA conducted an inspection ol" Pinnacle Airlines aiitidrug and alcohol 

misuse program for compliance with 49 C.F.R. Part 40 and 14 C.F.R. Part 121, 

Appendices I and J in September of 2007. As a result ofiis inspection and 

delemnination thai repealed violalions of FAA and DOT regulations had occurred, the 

agency proposed a civil penalty of $200,000.'^ On September 10, 2008, the h"AA issued a 

Notice of Proposed Civil Penalty. Exhibit A-15. 

Pursuant to 14 C.F.R. §13.16(g)(l )(ii), having participated in informal 

proceedings but unable to compromise the action, the agency issued a Final Notice of 

Proposed Civil Penalty on l"'ebruary 11, 2009. Pinnacle Airlines requested a hearing on 

This inspection took place or September 10-14, 2007. Para. 3 of Coinplaint, admitted in Answer. 

^ Pursuant to 14 C,1-'.K, 1 J. 16(f)(2), Pinnacle was afforded the opportunity to respond to the Notice and the 

company elected to participate in an informal conference, Bxhibit A-17. Pinnacle also submitted written 

infonnarion for consideration by the FAA. An informal confcrunce was held with undersigned counsel on 

December 3, 2008. 
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February 19, 2009. The agency filed its Complamt on March 5, 2009, alleging twenty 

violHtions of Federal Aviation Regulations and requesting tbai a civil penalty of $200,00 

be ordered. Pinnacle filed its Answer and Affimiative Defenses on March 31, 2009. 

A hearing was held before Administrative Law Judge Isaac D. Benkin on 

September I and 2, 2009, in Memphis, Tennessee. Two witnesses testified on behalf of 

the Administrator: Amy Frankel, Manager of the Field Operations Branch, Office of 

Aerospace Medicine, Drug Abatement Division, and Virginia Lozada, Manager of the 

Eastern Region Compliance and Enforcement Center, Federal Aviation Administration, 

The Administrator introduced seventeen (17) exhibits into evidence. Pinnacle Airlines 

presented testimony from two witnesses: Mary Ann Morrow, Vice President of People, 

and Marva Steed, Senior Manager of People Siandaids and Compliance, Pimiaclu 

Airlines. Pinnacle introduced thirty-two (32) exhibits into evidence. At the close ofthe 

hearing, Adminisirative Law .Tudgc Benkin ordered the parties to submit post-hearing 

briefs. Both parties submitted post-liearing briefs before the ALJ issued his miiial 

decision. 

Statement of Facts 

The FAA alleged twenty violations of Federal Aviation Regulations (FARS) 

alleged in the Complaint. As a commercial air carrier, Respondent is required to comply 

with the Drug imd Alcohol te.sting requirements set forth in 49 CFR Part 40 and 14 CFR 

Part 121, Appendices I and J. Complaint para. 1 and 2, admitted in Answer. Following 

the FAA'S September 2007 inspection, the agency initiated enforcement action for ttiree 

general categories of violations. Tr. 97. 
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First, the agency identified two pre-employment testing violations Ibr new hires. 

Tr. 97, Pursuant to 14 C.F.R. Part 121, Appendix 1, Section V.A.I, Pimwcle was 

prohibited from hiring any individual for a safety-sensitive function unless it had first 

conducted a Department of Tran.sportation ("DCI'")-required pre-employment lest and 

received a verified negative drug test result for that individual. Complaint para. 6, 

admitted in Answer. In the course of the FAA's inspection of air carriers, it relies upon 

internal documents provided by the company to assess compliance with the regulations, 

Tr. 108. Tlie FAA's inspection revealed violations related to the hiring of two 

employees, Adam Siewari and Jeremy Heinbach. Tr. 99, 102. On September 29, 2006, 

Respondent hired Mr. Stewart Lo perform maintenance or preventive maintenance duties, 

which is a safety-sensitive function, if. 99, F,xhibit A-3, Mr. Stewart was administered 

a DOT-required pre-employment drug test on or about September 29, 2006, but 

Respondent did not receive a verified negative diiag test result for him until September 

30, 2006. Complaint para 8, admitted in Answer, see also Tr. 100. On or about July 30, 

2007, Respondent hired Mr, Heinbach to perform aircraft dispatcher duties, wliich is also 

a safely-sensitive flinction, Tr. 102-103, Exhibit A-4. While Mr. Heinbach was 

administered a DOT-required pre-employment drug test on or about July 2, 2007, 

Pinnacle did not receive a verified negative drug test result for him until August 2, 2007. 

Complaint para 11, admilied in Answer. Under DOT drug testing regulations, Pinnacle 

was required to conduct pre-employment drug testing and receive a verified negative test 

result prior to the date it hired these individuals lo perform safety-sensitive functions, but 

it failed to comply with the regulations, Tr. 104, 100, 103; 14 CF.R. Part 121, Appendix 

I, Section V.A.I. 
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The second category of violations involved the transfer of sixteen employees, who 

had not been previously performing safety-sensitive functions at Pimtacle Airlines, irto 

the safety-sensitive function of Ground Security Coordinator (GSC). Complaint para. 13-

61; see also Exhibit A-1, Stipulation of Facts. Pursuant to 14 C.F.R. Part 121, Appendix 

I, Section V.A.2, Pinnacle was prohibited from allowing an individual lo bo transferred 

from a nonsafety-sensitive fiinction lo a safety-sensitive function without first conducting 

a DOT-required pre-employment test and receiving a verified negative drug test result for 

the individual. Complaint para. 13, admitted in Answer; see also Tr. 111. Under FAA 

regulations, allowing an individual to attend training for a safety-sensitive function is 

deemed to be a transfer into a safety-sensitive function. Tr. 111-112, Companies are in 

violation of FAA regulations if they allow an individual to attend training for a safetysensitive function prior to conducting and receiving a verified-negative DOT-required 

pre-employment drug test. Exhibit A-6, Tr. 120. Pinnacle allowed sixteen individuals to 

attend training to perform safely-sensitive functions prior to Pinnacle receiving a verified 

negative DOT-required pre-employment drug test result, in violation of FAA regulations. 

Exhibit A-], Stipulation of Facts, Tr. 120. This constitutes sixteen separate violations of 

FAA regulations, which occurred in numerous cities throughout the country over a period 

of approximately eight months. Tr. 121-122. 

The third category of violations involved Pinnacle's failure to conduct its random 

drug and alcohol testing program in accordance with the regulations. Complaint para. 

62-66. Under 14 C.F.R. Part 121, Appendix T, § V.B.5, Pinnacle is required to conduct 

random drug testing of each person performing a safety-sensitive function by a process 

that ensured each covered employee had an equal chance of being tested each time 
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random selections for drug testing were made. Similarly, under 14 C.F.R. Part 121 

Appendix J, § II1.C.5, Pinnacle is required to conduct random alcohol testing of covered 

employees in a manner ihat ensured each covered employee had an equal chance of being 

tested each time random selections for alcohol testing were made. Respondent admitted 

to the violations of these regulations. Answer, admitting paragraphs 62-66. 

At the conclusion ofthe FAA'S September 2007 inspection of Pinnacle Airlines, 

FAA investigators developed an Enforcement Investigative Report (F.IR) containing 

evidence ofthe aforementioned violations. Tr. 95, 129. This EIR was forwarded to the 

field Operafions Branch ofthe FAA for civil penalty action. Tr. 129-130, 149. Ihe 

Field Operations Branch reviews all BTRs before a civil penalty is proposed lo ensure 

consistency of enforcement actions nationwide. Tr. 150. EI Ks are forwarded for legal 

enforcement action when they fail to meet the criteria for administrative action based on 

factors such as the presence of repeated violafions, a high ri.sk factor, or a high degree of 

hazard. Tr. 96-97. 

Complainant proposed a civil penalty of $200,000 for the twenty violations 

identified in the inspection in this case and contained in the 81R. Complaint § I. The 

agency determined that this was an appropriate civil penalty under all the facts and 

circumstances. Complaint § III.2. In arriving at this proposed civil penalty, the agency 

applied sanction guidance approved by the Administrator. Exhibit A-5, FAA Order 

2150.3A, Appendix 4, Enforcement Sanction Guidance Table; Tr. 152. Consistent with 

FAA Order 2150.3 A, the FAA considered the totality ofthe circumstances in proposing a 

civil penalty. Tr. 153, see A-5 at 2. Among the factors considered, the FAA took into 

account the violation history of Pinnacle Airlines. Tr. 153. Pinnacle had live prior 
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violafions of FAA and DO T drug and alcohol testing regulations. Exhibits A-8, A-9, A10, A-11, A-12, Tr. 160-171. The prior violations included pre-employment icsting 

violafions. Tr. 182, 183; see also Exhibit A-10, A-11, A-12. The agency also took "in 

very high regard" the degree of risk posed by ihe violations and the potential harm to ihe 

flying public. Tr. 194. The agency considered the violations to be systemic, due to the 

fact that five prior violafions ofthe drug and alcohol testing regulations had been found, 

including the exact pre-employment drug testing violations at issue in the present case, in 

prior enforcement actions. Tr, 201, The agency treated the pre-employment violations as 

falling within the maximum range for civil penalties. Tr. 196. The statutory maximum 

for each violafion is 525,000. 49 U.S.C. 46301(a)(1). However, the agency only 

proposed a civil penalty of $200,000 for the 20 violations set forth in the Complaint. 

The Administrative Law Judge's Initial Decision 

The ALJ found that Complainant presented evidence that established the 

violafions by a preponderance ofthe evidence. Inifial Decision at 3-4.'^ The ALJ 

Both the AfJ'S decision and Pinnacle's Initial Brief ."itaic thai the FAA propo.scd a civil penalty 

for 19 violations, when in fact, the FAA clearly alleged 20. /^/'-./Dcci.'iion at 1, Appellant'.^ Brief at 6, 

Complaint (alleging 20 violations), Tr. ai 38 (opening statement by agency counsel arguing that there were 

20 violations, Complainant's Po.st-hearin2 Brief at 3 (stating the complaint set forth 20 violations and 

arguing that all 20 were ciitablishcd by a preponderance ofthe evidence). The agency alleged two (2) preemploymem violations for employees tlie company failed to test prior to hire, sixteen (16) violations for 

employees Pinnacle failed to test prior to transfer and two (2) violations for failure to include employee 

Michael Sampson in ihc random drug and alcohol testing pools, i'ec complaint. 

The apparent discrepancy in the number of violations seems to be in regard ro Mr. Samp.son, As a 

result ofthe failure to include Mr. Sampson, a safety-scnsiitive employee, in the mndom drug and alcohol 

testing pools, Complainant alleged tvvo violations. First, Respondent failed to conduct random drug lesiing 

of each person performing a safely-sensitive function by a process that ensured each covered employee had 

an equal chance of being tested each time random selections for drug testing were made, in violation of 14 

C.F.R. Part 121, Appendix I, § V,B.5. Second, Complainant alleged that Respondent failed to conduct 

random alcohol testing of each person performing a safety-sensitive function by a process ihat ensured each 

covered employee had an equal chance of being tested each time random selections for alcohol testing were 

made, in violation of 14 C.F.R. Part 121 Appendix J, 5) III.C.5. These were TWO separate violations under 

different regulations, 

In lis brief, Pinnacle states thai there were only 19 violalions and discusses only a violation 

involving "failure to properly place dispatcher Michael Sampson...into the random drug testing pool 

pursuant to Appendix J." Appellant's Brief at 7 (.statement of facts). This statement confuses the 
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discussed the evidence related to the hiring and pre-employment testing of Adam Stewart 

at length and rejected Pinnacle's assertion that the internal documents it provided to the 

FAA contained an euor and that, in fact, no violafion had occurred. Id. The ALJ found 

the testimony presented by Pinnacle in defense to this violafion was not credible and that 

there was, in fact, a clear violafion ofthe FARS. Initial Decision at 4. The ALJ noted 

that Pinnacle did not attempt a serious challenge to rhe pre-employment testing violation 

regarding Mr. Heinbach and stipulated to facts demonstrating that the sixteen preemployment violations occurred when Pinnacle allowed iheso employees to attend safctysensiiive training without having first received verified negafive DOT-required preemployment drug tests. Id. Finally, the ALJ noted Pinnacle's admission that it violated 

the random drug and alcohol testing requirements with regard to Mr. Sampson. Id. Upon 

reaching the conclusion that the evidence established the violations alleged, the ALJ 

noted that the only remaining question was the amount of civil penalty warranied. Initial 

Decision at 3-4. 

Fhe ALJ considered and rejected every basis offered by Respondent for a 

rcducfion in civil penalty. Initial Decision at 5-14. The ALJ also considered matters in 

aggravafion and concluded that the proposed civil penally of $200,000 was appropriate. 

Inifial Decision at 15-17. 

Standard of Review 

violations, because Appendix J addresses not the drug testing requirements, but the alcohol testing 

requirements. These are separate regulatory provisions and violations. These were pled as separate 

allegations in the complaint and Pinnacle admitted to both of them. See Complaint, paragraphs 62-66; See 

Answer, admitting these allegations. The ALJ was very clear in his finding that both of these violations 

were admitted lo and, therefore, included ill his findings of fact. The AIJ stated that "Pinnacle did not at 

the hearing dispute the FAA's charge that it erroneously excluded one employee performing safetysen.sitive functions from the pool of Such employees considered for random drug and alcohol te.sting," 

Initial Decision at 4. Therefore, it cannot be disputed that the FAA alleged 20 vjolaiions and the A I.,) found 

that all violations had been proven or admitted. 
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Pursuant to 14 C.F.R. § 13.233(b), on appeal the FAA dceision-maker will only 

consider (1) whether each finding of faci is supported by a preponderance of reliable, 

probative, and substantial evidence, (2) whether the law judge comrnitted any prejudicial 

errors, and (3) whether each conclusion of law is made in accordance with applicable 

law, precedent, and public policy. 

Argument 

L The ALJ properly held that Pinnacle's repealed viuhitions of the FAA 

and DOT drug testing regulations posed a serious risk to aviation safety 

in accordance with law, precedent, and public policy. 

Pinnacle argues that "Judge Benkin's conclusions of law were nol in accordance 

with law, precedent, and public policy," and, in particular, argues thai "Judge Benkin 

erred by not considering the low material risk to the flying public,'' Appellant's Brief at 

13. This argument is deeply flawed. First and foremost, nothing in the record supports 

the conclusion that the violations commincd by Pinnacle posed a low material risk to the 

public. To the contrary, pre-employment drug testing violations are treated by the agency 

as a very serious violation precisely because they present such a significant risk to 

aviation safety. Policy statements, the regulatory preamble, decisions by the 

Administrator, and tesfimony in this case support the conclusion that the violations posed 

a significant risk to aviafion safely. See 69 Federal Register 1846 (Jan. 12, 2004), hi the 

Matter ofStebbins Aviarion. Inc., FAA Order no. 2006-3 at 11, FN 21 (2006), FAA Order 

2150.3B (Exhibit A-5), Tr, 132, 194. Pinnacle has not cited any support, legal or factual, 

for its argument that there was a low risk. 

a. The existence of a Non-DOT regulated testing program docs not 

substitute for compliance with the requirements of a DOT-required 

testing program. 
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Pinnacle argues that ihe violalions posed a "low material risk" because il had a 

non-DOT regulated drug testing program that it operated Internally.* Pinnacle asks the 

Decisionmaker to infer that the existence of an unregulated testing program creates a 

lower risk that safety will be compromised by drug and alcohol abuse, without any 

evidence to subsliintiale that claim. As the ALJ noted, "the problem with this argument is 

that [it] ignores the fact that all drug-tesfing programs are not equal." Initial Decision at 

5. The ALJ's recogniuon of this fact is premised on testimony about DOT drug testing 

requirements and controls and the lack of assurance that Piiuiaclc's in-house, unregulated 

testing program was administered in a comparable manner. See Initial Decision at 5-6. 

An unregulated drug testing program with no controls or assurances of its validity is no 

substitute for compliance with DOT-required drug testing, nor does it mifigate violations 

ofthe regulations. 

While Pinnacle argued that it "has its own non-DOT program that's pretty much 

exactly the same as the DOT program," Tr. 25, the evidence demonstrated significant 

differences between the two programs.^ DOT standards for drug and alcohol testing 

incorporate critical measures to ensure the validity of specimens and protect the integrity 

" In his closing argument. Pinnacle's counsel asked the rhetorical question "was there a veiy high 

risk lo ihc public safety in these in.stances? I \vould say certainly not." Tr. 637. Counsel did not elicit 

testimony fioin any witness qualified to render an opinion a.s to -whether the violation.": posed a high risk to 

public safety, nor did he present any evidence to support his personal belief that the violalions posed a low 

risk. 

^ Although Pinnacle presented evidence that it had conducted non-DOT pre-employment drug 

tests for some of ihe employees allovved to ancnd GSC training, the tests were conducted vvhen the 

individual was initially hired for a nonsafety-sensitive function at Pinnacle, not v^hen they were transferred. 

In many cases, there was a significant time period between even the date ofthe non-DOT drug rest and the 

dale the individuals were transferred into safety-sensitive functions. In some cases almost u year elapsed 

between the date employees were administered non-DOT tests and when they were transferred into safetysen.iitivc function.^, See, en, Tr, 385, Under DOT regulations, pre-employment drug tests remain valid 

only for a period of 180 duys, so Itiese would not be recognized as meeting the regulatory requirements, 

even if they had been conducted in accordance with DOT requirements. 14 C.F.R. part 121, Appendix 1, 

Section V.A.3: see also Tr. 386, 560. 
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ofthe entire testing process. DOT regulations set forth requirements that apply to the 

collection process under which a specimen is produced for DOT drug tesfing. See Tr. 

544-548. Colleciors musi be specifically Trained in DOT collection processes and meet 

other requirements. See, e.^. 49 C.F.R. §§ 40.31, 40.31; see also Tr.545. There are 

specific requirements and mandates for collection sites for DOT drug tests. See, e.g., 49 

C.F.R. § 40.41. Collection sites must, on DOT-required testes undertake a number of 

steps "to protect the security and integrity of urine collections." 49 C.F.R. § 40.43, see 

aho 49 C.F.R. § 40.61, 40.63, 40.65,40,73, Tr, 544-548. DOT regulations require the 

use of a Federal C'hain of Custody Form that also serves to document the collecfion and 

chain of custody ofthe specimen to ensure the validity ofthe test result. 49 C.F.R. § 

40.45. 

In addifion to regulations governing collection sites, DOT regulafions also specify 

the manner in which specimens must be sent to and processed by the laboratory. DOT 

regulations specify that all DOT-required tests must be sent to HHS approved 

laboratories, but they also require specific processes and steps that labs mu.st follow. See 

49 C.F.R, §§ 40.81, 40.83; see also Tr. 535-544. Of course, the laboratory is under no 

obligation to follow these steps in a non-DOT drug test. 

As the Administrator has previously noted, DOT regulations limii testing to five 

drugs, but all f^OT-required tests must include these five drug.s. 49 C.F.R. § 40.85; Seealso In the Matter ofStebbins Aviation, Inc., FAA Order no. 2006-3 at 4-5, FN 12 (2006). 

DOT requirements specify cutoff concentrations for each of ihese drugs, on initial and 

confirmafion tests, 49 C.F.R. § 40.87; see also Tr. 533-537. The Administrator also 

noted tliat a different result may be achieved on a test that is administered using different 

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cutoff levels. Siebbins at 5, FN 13. This means that a non-DOT test processed by the 

laboratory at cutoff levels varying from the DOT requirements would yield different 

results. A test may be negative under one set of cutoff levels, but positive under another. 

Therefore, the cutoff levels are important in determining the outcome ofthe test. 

DOT regulations also require that laboratories conduct validity testing on all 

DOT-required dmgtest^. 49 C.F.T<. §§ 40.89, 40.91. This imponani process determines 

whether a specimen is diluted, substituted, or adulterated, all of which would circumvent 

the DOT testing process and lead to unreliable results. See 49 C.F.R. §§ 40.93, 40.95; 

see also Tr. 535-541, As an additional measure in the testing process, DOT regulafions 

further provide for a review of all test results by a Medical Review Officer (MRO) and 

provide very specific requirements for the steps that an MRO must undertake to ensure 

that the result is verified appropriately. See 49 C.F.R. §§ 40.121, 40.123, 40.127, 40.129, 

AO. n \; see also Ix. S21 

The regulatory requirements governing DOT-required drug testing are 

voluminous, but they serve a crifical function. They ensure that DOT-required drug tests 

of individuals performing safety-sensitive functions are valid, reliable, and effeefive at 

detecting illicit drug use in the transportafion industry. Non-DOT drug tests may differ 

from DOT drug tests in many fundamental ways and are .<;imply not subject to the same 

controls and requirements. Even if the same collectors, same laboratories, and same 

MROs are used by a company for a non-DOT test and a DOT tcsi, there is no 

requirement or assurance that the collectors, laboratories, or MROs follow the same 

process. Virginia I.ozada, Eastem Region Compliance Manager, testified that based on 

F A A audits of collection facilities, there arc apparent differences in the collection process 

n 
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for DOT and non-DOT drug tests that could compromise the results of such tests. See, 

e.g, Tr. 547-548. It is conceivable that anywhere in the drug testing process - in 

collection, at the laboratory, or during ihc MRO verification - differences in the way a 

specimen is handled or processed could compromise the validity ofthe test and may lead 

to a different result than if a drug lest had been administered under DOT requirements. 

As a result, ihe FAA does not consider the results of drug tests that are not conducted in 

accordance with DOT standards. There is simply no assurance that such tests are 

conducted in a valid, reliable manner. 

Although Pinnacle asserts that it "requests its collection sites, MROs and third 

party administrators for the non-DOT program mime the DOT scheme as closely as 

possible," no evidence was offered lo establish this. See Appellant's Brief at 19. Al 

hearing, Pinnacle's witness Marva Steed tesfified that "we have an agreement with [the 

third party administrator] and our collectors that our DOT is the exact same as our nonDOT." Tr. 499-500, Another witness for Pinnacle, Mary Ann Morrow, testified that 

Pinnacle required the laboratory to test for the cutoff levels required by DOT regulations. 

Tr. 392. Ms. Morrow testified that "we hold them to the same standard," and that she 

believed the requirements were written into the contract with the laboratory. I'r. 392. 

However, on cross-examination, she admitted that .she had not personally spoken with the 

laboratory and that she was not familiar with the contract. Tr. 393. Ms. Morrow also 

tesfified that Pinnacle has conlracls wiih its collectors, Tr. 394, 394, and that they have 

"asked them" to follow DOT requirements, Tr. 399, but she could not specify whcthc:r 

Pinnacle's contracts with collecfion sites required collectors to follow the requirements 

set forth in DOT regulations on non-DOT tests. Tr. 397-399. Ms. Morrow conceded that 

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if the requirements were not set forth in the contract, the collectors would not be required 

to follow DOT standards on non-DOT tests. Tr. 400.'' Ms. Morrow also testified that 

Pinnacle's MRO's follow DOT-required processes for non-f:)OT tests. Tr. 408. Ms. 

Morrow also testified that Pinnacle has contracts with ils MROs, but she did not recall 

whether the contracts set forth requirements for the vcrificafion process that would 

comply with DOT regulations for non-DOT tests. Tr. 408-409. No contracts or 

agreements between Pinnacle and its collectors, laboratory, third party administrator, or 

MROs were provided by Pinnacle or introduced into evidence. There was no 

documentation or corroborafive testimony to substantiate Pirmacle's claims that there 

existed agreements between these enfities and the air carrier that DOT requirements 

would be followed for Pimiaclc's non-i.)0'J" testing program. 

Moreover, testimony that the non-DOT tests and DOT tests were the "exact 

same" was explicitly discredited. As the ALJ found, "cross-examination turned up 

evidence that the non-DO'T tests being conducted for Pinnacle did not comply with the 

Department's rules for drug tests." Initial Decision at 4. The evidence provided by 

Pinnacle revealed differences in both the collection and the laboratory processing ofthe 

specimens. See, e.g. Tr. 522 (a seven-panel test, rather than the DOT-required five-panel 

drug test was conducted by the laboratory), Tr. 506 (a split specimen was not collected 

for non-DOT tesfing, referring lo Exhibit R-13). Pirmacle's witness conceded that she 

did have any actual knowledge about many ofthe remaining collecfion or lab procedures 

for non-DOT tests, aside from what was on the Custody and Control Forms, which 

Although M.s, Morrow testified that Pinnacle audita its collectors, she did nol have any personal 

knowledge about those audits and could not testify that the same procedures were being followed, Tr. 401 

402. Pinnacle does not perform audits of its laboratories to determine whether DOl' procedures are 

followed for non-DOT tests, I'r. 406. Pinnacle does not audit or conduct any type of evaluation lo 

determine whether MROs are following DOT requirements for non-DOT tests. Tr. 409. 

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demonstrated obvious differences. Tr. 522 (no way of l-uiowing whai cutoff levels are 

tested for by the lab), Tr. 523 (witness had no way of knowing what collection 

procedures were followed). 

The AlJ, having considered all the evidence, found ihat "it is not possible to say, 

as Pinnacle seems to do, that its program was adequate." Initial Decision at 5. The ALJ 

correctly concluded based on the record before him that "the fact that Pinnacle had its 

own drug-resting program in effect is entitled to little weight in assessing the amount of 

civil penally."/c/. al 6. 

Just as with the argument about non-DOT testing, above, the argument that ihe 

violations in regard to Jeremy Heinbach and Michael Sampson posed a "low material 

risk" arc equally unavaihng. As the ALJ noted, "Pinnacle did not attempt a serious 

challenge to the FAA's thesis that Mr, Heinbach was hired for a safety-sensitive" 

fiincfion prior to the date upon which Pinnacle received a DOT-required verified negafive 

pre-employment drug test. Initial Decision at 4. Pinnacle, in fact, admits that 

Mr. Heinbach was not only hired, but allowed to start work, before a DOT-required 

negafive drug test result was received, Tr. 68; Appellant's Brief at 20. Pinnacle simply 

argues, again, that this violation posed "a low material risk" and, therefore, should not 

have led to the civil penalty ordered. See Id. There is no evidentiary or legal support for 

this argument. 

Piiuiacle asserts that Mr. Heinbach posed a "low risk" because he was in training 

during the fime at issue. See Appellant's Brief at 20; Tr. 459. However, the regulations 

explicitly state that an individual in a training status must be tested. Under 14 CF.R. Part 

121, Appendix I, § III entitled "Employees Who Must be Tested" includes any 

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"individual in a training status." The agency has also issued a written statement, which 

constitutes a duly adopted interpretation, that ''we believe that the wording ofthe 

regulation is very clear and employers must follow the language ofthe regulation. Exhibit 

A-6 at I. The statement explains that the DOT-required drug test must be completed 

prior to hire, not prior lo performance. Id. It also stales that, under the regulations, 

[w]e expect each employer to pre-employment test and receive the negative lest 

result prior to an employee being hired for safety-sensitive functions, even if the 

individual has not yet begun training. 

Id. at 2. The agency, at That time, recognized that companies may attempt to circumvent 

the regulations by arguing that individuals were merely in training, as Respondent has in 

the present case. Id. However, the agency flafiy rejected this as a potenfial defense to a 

violation ofthe regulations when it stated that an employer is 

in violafion ofthe rule by not performing a pre-employment test and receiving a 

negative test result prior to the irifiation of training the.se individuafs who have 

been hired for safety-sensitive functions. 

Id. Therefore, it is no defense to a violation ofthe Federal Aviation Regulations that an 

employee was merely in training or had not yet begun actually performing safetysensitive work. 

Not only is the regulatory language clear on ils face as to ihis point, the regulatory 

preamble specifically rejected the suggestion that a violation was less egregious if the 

individual was merely in training. 69 Federal Register 1840 (Jan. 12, 2004). During ihe 

Notice and Comment period for the 2004 amendments ofthe regulation, the agency 

received comments arguing that the agency should create an allowance for employees to 

begin training prior to having completed the DOT pre-employment tesfing. Id. at 1846. 

Members of the aviation industry explained that many individuals who are liired to 

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perform safety-sensitive fiinctions for airlines receive classroom or other training at 

corporate headquarters before they perform any work that could be considered safetysensitive. Id. However, the FAA, having considered all of this, rejected the suggestion 

that some allowance should be permitted for an employee to begin basic corporate 

training before tesfing was completed. The agency explicitly addressed this in the 

preamble and reiterated that the requirement is "prior to hire." Id. Therefore, tliat Mr, 

Heinbach may have been in training during his initial period of employment is irrelevant. 

And there is no support for Pinnacle's claim that this somehow warrants a reduced civil 

penalty. 

Pinnacle's arguments with regard to Mr. Sampson are equally misplaced. There 

is simply no basis upon which the Decisionmaker should find that an error occurred v/hen 

the ALJ included an admitted violation with regard to Michael Sampson in his finding 

and civil penalty. Under 14 C.F.R. Part 121, Appendix I, § V.B.5, Pinnacle is required to 

conduct random drug tesfing of each person performing a safely-sensitive function by a 

process that ensured each covered employee had an equal chance of being lesied each 

fime random selecfions for drug testing were made. Similarly, under 14 C.F.R. Part 121 

Appendix J, § ITI.C.S, Pinnacle is required to conduct random alcohol testing of covered 

employees in a manner that ensured each covered employee had an equal chance of being 

tested each time random selections for alcohol testing were made. Pinnacle admitted (o 

the violation of these regulafions. See .^Jiswer, admitting paragraphs 62-66 of Complaint. 

This violation was, in fact, quite egregious because for almost seven months (from 

February 12, 2007 and the date ofthe inspection in September of 2007), this employee 

actually performed safety-sensitive functions as an aircraft dispatcher for Pinnacle. See 

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Complaint paragraphs 64-66, admitted in Answer. Ihe FAA's inspection revealed 

evidence of performance of safety sensifive fiinctions by this employee on July 1, 2007, 

August 4, 2007, and September 1, 2007, at which fime he was not subject to DOTrequired random dnig and alcohol testing. Complaint paragraphs 65, admitted in 

Answer. 

In Appellant's Statement of Facts, it argues that this violation was inadvertent, 

that the company took remedial measures to prevent future violations and that "the 

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

against Pinnacle." Appellant's Brief at 10. Pinnacle failed to present any evidence with 

regard to its administration ofthe random drug and alcohol testing program or that it Look 

remedial measures in regard to random drug and alcohol testing. There is cenainly no 

legal support or evidence to support the iossertion thai failure lo include an employee 

perfonning safety-sensifive funcfions for an air carrier is "a minor violation," See Id. 

Pinnacle does not dispute that this violation occurred or that an aircraft dispatcher 

was performing safety-sensitive functions without being subject to DOf-required random 

drug testing for a significant period of time. Pinnacle argues "because the omission was 

the result of a computer eiTor, Michael Siunpson could not have possibly known that he 

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

in the random pool and ofthe random testing requirement were still satisticd." 

Appellant's brief at 21-22. However, there was not .sufficient evidence as to what caused 

the violation (nor is it relevant) because the violation was admitted prior to hearing. 

Moreover, what Mr. Sampson knew about his status is irrelevant as the obligation falls 

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squarely on Pinnacle to ensure that its safety-sensifive employees are subject to r.)OTrequired drug and alcohol testing. 

The testimony cited by Piimacle to support the aforementioned argument is that of 

Mary Ami Morrow, who tesfified tliat a computer error occurred. Tr. 216. She referenced 

documents thai demonstrated this purported error, but they were not introduced into 

evidence and are not part ofthe record. See Tr. 216-217.'' Althougli Pinnacle represented 

that Sampson was administered a DOT-required pre-employment drug test, there is no 

evidence lo support this in the record and it is completely irrelevant lo violafions ofthe 

random drug and alcohol testing regulations. There is also no support for Pinnacle's 

insinuation that the only purpose of DOT-required random drug and alcohol testing 

program is deterrence or that such a goal was somehow "satisfied" because Mr. Sampson 

may not have been aware ofthe fact thai he was nol included in the pool. Appellant's 

Brief at 21. The record is completely devoid of anything regarding Mr. Sampson's 

knowledge of whether he was included in the random pool. More impoitantly however, 

this argiiment fails to recognize that the goal of DOT-required drug testing is twofold: 

detection and deterrence. 69 Federal Register 1840, 1840 (Jan. 12, 2004). The goal of 

detecting drug or alcohol abuse cannot be said to have been "satisfied" when an 

individual was not subject to testing. 

^ In reality, even if ihe violation had resulled from the third party administrator's failure to include 

Mr. Sampson in the random pool or some computer error in the transmission of this information, the 

regulations clearly provide that Pinnacle remains responsible for the resulting omission and violation. 

Under 49 C.F.R. Pan 40.15(c), regulated entities "remain responsible for compliance with all applicable 

requirements of Ihi.s part and other DOT drug and alcohol testing regulations, even when you use a .service 

agent." The regulation goes on to state that "your good faith use of a service agent is nol a defense in an 

enforcement action." It \vould not, therefore, have proven to be a valid defense even if Pinnacle had 

presented reliable evidence that an error occurred n the computer transmission of information to its third 

party administrator, It is immaterial at this point, hovvever, because Pinnacle did not deny the violation,; 

and it is improper to now offer an unproven explai^aiion and argue that the ALJ erred in assessing the 

appropriate civil penalty for an admitted violatio:n. 

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b. Pinnacle's viulatiuns puse a significant risk to aviation safety. 

The vast majority ofthe violations in this case involved the failure to comply with 

DOT and FAA requirements for pre-employment drug testing of safety-sensitive 

employees. Such violations present a significant risk lo aviation safety. See 69 Federal 

Register 1846 (Jan. 12, 2004), In the Mailer of Stebbins Aviation, Inc., FAA Order no. 

2006-3 at 11, FN 21 (2006), FAA Order 2150.3B (Exhibit A-5), Tr. 132, 194. The 

regulatory preamble explicitly states that that "[pjrc-cmploymcnt violations are extremely 

serious because they indicate that an employee was placed into a safety-sensitive function 

without the proper testing." 69 Federal Register 1846, 1846 (Jan. 12, 2004). In practice, 

DOT-required pre-employment drug testing of safety-sensitive employees is 

fundamentally important because ofthe high incidence of drug use detected through ihis 

mechanism. In fact, "[sjtafistics show thai pre-employment testing yields the largest 

number and percentage of positive test results, a larger number than all other FAArequired drug testing combined," Id. Dy detecting drug use before an individual is hired 

to pe)"fonn a safety-sensitive function, "fpjre-eiriploymcnt testing functions as the 

gatekeeper" to the aviafion industry. Id. see also Tr. 132. The failure to conduct DOTrequired pre-employment testing and receive a verified negative result before an 

individual is even hired is critical safety measure for the flying public and "any preemployment violation poses the risk of pcnnilting ihe entry of an illegal drug user into 

the aviation inditstry." Id, see also Tr. 194. The Administrator has also recognized that 

for these types of violations, the FAA generally pursues the maximum civil penalty, 

"given the threat to aviation safety that these types of violations pose." In the Matter of 

Siebbins Aviation Inc., FAA Order no. 2006-3 at 11, FN 21 (2006). The Field 

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Operations Branch Manager at the FAA, Office of Aerospace Medicine, Drug Abatement 

Division testified ihat violations of DOT-drug testing regulations warrant the maximum 

civil penalty under agency policy. Tr. 196. 

In this case. Respondent committed eighteen violations ofthe pre-employment 

drug testing requirements; both with new hires and with individuals transferred into 

safely-sensitive fiinctions. These arc treated as separate violations because "each time is 

a separate risk." Tr. 121. Pinnacle also committed violations ofthe requirements that 

goveiTi ongoing random testing of employees performing safety-sensitive functions. 

Regardless of Pinnacle's assertions to the contrary, these violations pose a 

significant safety risk. The ALJ committed no err when he declined to accept Pirmacle's 

unsupported, unproven argument that xhey presented a "low material risk" to safety. 

There is no legal support for Pirmacle's suggestion that the ALJ was required to 

determine the risk posed by each violation, when the agency has ahready detennined that 

pre-employment testing violations, by nature, pose a serious risk to air safety. ITic 

agency reached this conclusion when it promulgated the regulations, as rclleeied in the 

regulatory history. See 69 Federal Register 1846, 1846 (Jan. 12, 2004). Therefore, the 

pre-employment testing violations involved in the transfer of the sixteen employees to 

safety-sensifive functions and the hire of Mr. Heinbach and Mr. Stewart all posed a 

significant risk in air safety. 

The violations of DO T-required random drug and alcohol testing requirements 

related to Mr. Sampson was also significant. Although Pinnacle argues tliat "the actual 

risk of harm associated with the risk rsic'j is minimal," there is no support for this 

assertion. See Appellant's Brief at 21. Pinnacle admits that for a period of seven months. 

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an aircraft dispatcher, Mr. Sampson, was allowed to perform safety-sensitive functions • 

without being subject lo DOT-required random drug and alcohol testing. Actual 

performance of a safety-sensitive function is considered be an aggravating factor in 

random coverage violations, Tr. 606. The risk inherent in this violation is obvious. 

n. The ALJ's finding that Fiunacie committed u violation when it hired 

Adam Stewart was supported by a preponderance of reliable, probative, 

and substantial evidence. 

Pinnacle urges the Administrator to overturn the Al.J's finding of fact on the basis 

that it is "highly improbable" that Adam Stewart was hired on the date the company's 

internal documents reflect. See Appellani's Brief (Statement of Facts) at 7. Pinnacle also 

argues that Mr. Stewart did not begin working until after his drug lest result was received, 

bul ihe regulations and law are clear that the date an individual first performs is 

irrelevant. The record demonstrates, by a preponderance of reliable, probative, and 

substantial evidence that Pinnacle violated the Federal Aviation Regulations w/hen il 

hired Adam Stewart without first conducting and receiving a verified negative test result 

on a DOT-required pre-employment violation. Pinnacle failed to present an adequate 

defense to this violation and, in fact, relies completely at hearing and on appeal, on 

unsupported inferences and testimony from a witness the ALJ found was not credible. 

Initial Decision at 3-4. By contrast, Complainant presented evidence, provided by 

Pinnacle itself, that established the date of hire. Exhibit A-3. Pinnacle does not dispute 

that a negative drug test result was not received prior to that date. 

In the course ofthe FAA's inspection of Pinnacle Airlines for compliance with 

F A A regulations in September of 2007, the FAA was provided with documents 

evidencing the date of hire for new employees and ihe date upon which pre-employment 
03/11/201 0 17:2 2 FAX 2024935142 FAA * DMS @j022/039 

drug testing was administered and a verified negative drug test result waf> received for 

these employees. To evidence the date of hire for Adam Stewart, Pinnacle provided an 

limployee Action Notice. Exhibit A-3; Tr. 99. This document established thai, on 

September 29, 2006, Pinnacle hired Adam Stewart lo perform maintenance or preventive 

maintenance duties as an A&P mechanic, which is specifically identified as a safetysensifive function under 14 C.F.R. Part 121, Appendix I. Section III. Exhibit A-3. Tlie 

Employee, Adam Stewart, signed this form on September 29, 2006. Id. It was also 

signed by a manager for Pinnacle Airlines on that date. Id. 'The Employee Action Notice 

is completed for a "New Hire" and in the box labeled "Hire Date" the following entry 

appears: "9/29/06." Id. Piruiacle did not in any way dispuic the authenticity of this 

document; in fact, at hearing, Pinnacle stipulated to its authenticity. Pinnacle never 

provided any information or evidence to FAA inspectors that these documents were 

inaccurate, although it was provided the opportunity to respond to the violations 

identified before legal enforcement action was initiated. Tr. 110; see aho fr. 108-110 

(process through which a company can address any errors on its paperwork during ihe 

inspection). 

The document provided by Pinnacle to establish the daie of hire for Mr. Stewart 

speaks for iiself; il identifies the hire date for Mr. Stewart as September 29, 2006. 

Pinnacle admits that it did not receive a verified negative DOT-required pre-employment 

drug test result prior to that date.^ See Answer, admitting to paragraph 8 of Complaint, 

see also Appellant's Brief at 7. The facts and evidence, ilierefore, establish that Pinnacle 

" Pinnacle admined paragraph 8 ofthe Complaint, which .set."; fonh the following facts: "Ste-wan 

waji administered a DOT-required pre-employment drug, test on or about September 29, 2006, and Pinnacle 

received a verified negative drug test result for him on or about September 30, 2006." On appeal, Pinnacle 

again admits that it did not receive the results until September 30, 2006. Appellant's Brief at 7. 

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hired Stewart lo perform a safely-sensitive I'unction without first conducting a DOTrequired pre-employment drug test and receiving a verified negative drug te.si result for 

him, thereby violating FAA and DOT drug testing regulations. 

While Pinnacle argues that evidence presented by it at hearing showed no 

violation occurred, the only evidence Pinnacle is relying on is testimony from its Vice 

President of People, Mary Arui Morrow, and payroll documents thai are irrelevant as a 

matter of law. See Appellant's Brief at 25-27. At hearing, Ms. Morrow testified that she 

reviewed Mr. Stewart's file and determined that he completed his application Ibr 

employment al Pinnacle Airlines on September 29, 2006.' Based on her review ofthe 

file, Ms. Morrow testified that she believed an error had been made by an HR clerk that 

"picked up the date from the application." Tr. 220. It is nol clear how she reached that 

conclusion. There was no testimony from any ofthe individuals involved in the hiring of 

this employee. As the ALJ recognized, the only witness offering testimony about this 

hiring had no personal knowledge and was not involved in the relevant events. Initial 

Decision at 4. The ALJ, therefore, concluded thai he was "unable to credit Ms. Morrow's 

explanation for what appears to be a clear violation ofthe FAR on the part of Pinnacle." 

Initial Decision at 4. 

While Pinnacle argues on appeal ihat the ALJ should have accepted its argument 

and the testimony of Ms. Morrow by virtue of her position at Pinnacle, ihis argument is 

without merit. The mere fact that Ms. Morrow is the Vice President of People and may 

'•' In lad, no documents were provided by Respondent ihai supported Ms. Morrow's .statements. 

The only documentation evidencing his date of hiire is the Employee Action Notice, On cross-exarninalion, 

Ms. Morrow slated that Mr. .Stewart wa.s extended an offer of employment on September 29, 2006 (the 

same date upon wliJch he completed hia application). Tr. 413. She le-srified that she did not know, nor did 

she have any documentation to show, when Mr. Stewart accepted the offer oremploymeni. Tr. 413, In 

fact, while Pinnacle evidenced the dale Mr. Stewart reported for work through payroll documents, il never 

offered any dale of hire other than the one reflected on tlie employee action notice: September 29, 2006. 

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have knowledge about Pinnacle's personnel policies does not entitle the speculative 

testimony she offered to more weight. See Appellant's Brief at 26. Ms. Morrow may be 

qualified to testify as to the general practices of her employer, but that does not qualify 

her to testify as to the facts of a situation she had no involvement in or personal 

knowledge about.'° The implausibility of her testimony and her lack of personal 

knowledge led the AlJ's findings, which should nol be overturned on appeal. See Initial 

Decision at 4. 

The AIJ also based his rejection of Pinnacle's defense on the fact ihal Pinnacle 

failed to present "any documentation to sustain [Pinnacle's] burden of showing that its 

own records were in error." Initial Decision at 4. The only document produced that 

provided a date of hire was Exhibit A-3, which is the Employee Action Notice relied 

upon by Complainant. Although Pinnacle introduced Mr, Stewart's time cards, the ALJ 

correctly held that "the employee's payroll record, standing alone, proves nothing." 

Initial Decision at 4. In fact, the date an employee first works or is paid is wholly 

irrelevant under the regulations. Scelx. 106. 

" On appeal. Pinnacle argues that "it is unrefiited that Pinnacle has a policy of conducting 

backfiiound checks on individuals prior to htrinj; them." See Appellant's Brief at 26. Pinnacle's policy as 

to conduct background checks was not at issue in this case, was nol entered into evidence, and was wholly 

unnecessary for the agency to "reflite" because it was irrelevant. Liven if Pinnacle had proven that it had a 

policy lo follow TSA regulations (an argument first made on appeal and not supported by the record) Ific 

mere existence of a policy pioves iiothinft. See Appellant's Brief at 26, To be sure, Pinnacle has also 

claimed that its policy is to follow DOT testing regulations, but ils violation history and the violalions 

found in the present case show that the mere existence of a policy provides no assurance that it is followed. 

There is no reason lo assume that Ma. Morrow's testimony about general business practices or policies 

mean."? that they were followed when Mr. Stewart wa.s hired. .9*^ Id. 

Ms. Morrow offered inconsisient testimony during the hearing in this case. Ms, Morrow testified 

that Pinnacle Airlines had no intent to hire Mr, Stewan on September 29, 2006, Tr. 222. However, she 

then testified that Pinnacle Airlines offered Mr. Stewart a position on September 29, 2006. Tr. 227. While 

thi,? obvious inconsistency calls into question the credibility of this witness, the documentary evidence 

resolves any question as to whether Pinnacle hired Mr. Stewart on September 29, 2006. It is, in fact, 

difficult to conceive of any other reason for which Respondent would generate an Employee Action Notice 

for a "New Hire" on that date. 

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Under the plain language ofthe regulations, the relevant date is the date upon 

which an employee is hired; not the date they first report for duty, are paid, or perfonn a 

safety sensitive function. 14 C.F.R. Part 121, Appendix I, Section V.A, In 2004, the 

F AA changed the language of this regulation to make it abundantly clear that DOTrequired pre-employment drug testing must be conducted and a verified negative test 

result received "prior to hire." 69 Federal Register 1840 (Jan. 12, 2004). The language 

had previously required that resting be completed "prior to performance." Id. at IS41, 

(Principle Changes - Appendix I (Drug Testing)).' In making this change to the 

regulation, ihe agency was specifically precluding the argument that Respondent is 

malcing wiih regard to Mr. Stewart. The ALJ correctly found that payroll records did not 

effectively refute the date of hire established by tlie Lmployce Action Notice and were 

irrelevant wiih regard to the violation. The weight ofthe evidence demonstrates ihal a 

violation ofthe regulations was committed when Pinnacle Airiincs hired Mr. Stewart 

without having received a verified negative drug test result on a DOT-required preemployment drug test. 

Pinnacle makes the unsupported assertion that "determining the hire date is wiihin 

the discretion ofthe airline," and, therefore, any testimony and/or date should be 

accepted. Appellani's Brief at 27. This argument is deeply flawed for many reasons. At 

hearing, an agency witness testified that :hc agency relies on "the company's internal 

documenis" to determine what the date of hire. Tr. 107-108. The agency must 

necessarily rely on internal documents and information provided the companies it 

regulates to assess compliance with FAA regulations. The FAA has no way of knowing 

when an individual is hired for a safety-sciisilive function, aside from the information 

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03/11/201 0 17:2 2 FAX 202493514 2 FAA •>• DMS 12026/039 

provided by an employer. However, relying on internal documents and infomiation 

provided by the company is noi the same as deferring to any interpretation offered by an 

air carrier. In this case, Pinnacle provided ihe date of hire for Mr. Stewart during the 

inspection. Its internal documents listed September 29, 2006 as the dale of hire. Exhibit 

A-3. Wliile Ms. Lo7.ada testified thai a company should be allowed to correct errors, see 

Tr. 227, it would indeed be iin absurd result if a company found to be in violation could 

simply make the unsupported assertion that the internal documents were wrong and avoid 

a finding of violation. Pinnacle had the opportunity to come forward with credible 

evidence to establish that the liirc document contained an error, but simply failed to. .See 

Initial Decision at 4. Moreover, Pinnacle's argument that it should be allowed to use its 

limecards to determine the hire date and that "Pinnacle's decision to consider this his hire 

date is not inconsistent with the regulation" has already been addressed. See Appellant's 

Brief at 27. The agency has tlaily rejected the assertion that one's first date of 

peifonnance is the date of hire. See discussion, .s-upra, at 15, 

Pursuant to 14 C.F.R, § 13.233(b)(1), on appeal, the FAA decision-maker will 

only consider " whether each finding of fact is supported by a preponderance of reliable, 

probative, and substantial evidence. In this instance, the finding of fact with regard to the 

regulatory violation involving the failure to conduct and receive a verified negative DOTrequired pre-employment drug test for Mr. Stewart is supported by unrebutted evidence 

that meets the requirement of 14 C.F.R. § 13.233(b)(1) and there is no basis upon which 

the Decisiomnaker should overturn the ALJ's finding." 

Although Pinnacle argues tliat tills violation wa,s a "mere paperwork discrepancy" for which 

only a minimum civil penalty should be a.ssessed, the case law cited by Pinnacle is wholly inapplicable. 

See Appellant's Brief at 27. Pinnacle relies on an ALJ decision involving violations that are markedly 

different from the case at hand and fails lo acknowledge that this serious pre-employment testing violation 

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111. The S200,000 civil penalty assessed in this case is re<i$unable based on the 

nature ofthe violations and the totality ofthe circumstances in this case. 

a. No prejudicial error was committed by virtue of a citation error to the 

wrong subsection ofthe appliciiblc .statute. 

On review of an ALJ decision, the FAA Decisioimiaker is to determine not 

merely whether any error occurred in the proceedings below or initial decision, but 

whether any such error caused prejudice. Pinnacle argues that it should receive a 

significant reduction in the civil penalty because of a citation error. Pinnacle argues that 

Judge Benkin committed an error of law in his initial decision when he cites 

49 U.S. C, § 46301(a)(5)(a), the small business section ofthe civil penalty statute. The 

correct subsection would have been § 46301(a)(1). 

Tlie controlling statute, 49 U.S.C. § 46301, sets forth civil penally liability for 

violations of federal regulations, including the Federal Aviation Regulations. Under 

49 U.S.C. § 46301 (a)(1) the maximum civil penalty for each violation is $25,000. 

I-Iowcvcr, 49 U.S.C. § 46301(a)(5)(A), provides that violations by an individual or small 

business concern are subject to a reduced civil penalty of only $11,000 per violation. In 

order to qualify for treatment as a small business concern in air transportation, under 15 

U.S.C. § 632, an air carrier must have fewer than 1,500 employees. 

The agency erroneously cited 49 U.S.C. § 46301(a)(5) in ihe ordering clause of 

the complaint, which may have led ihc ALJ lo refer to this provision. However, this was 

harmless error. In the Complaint, although 49 U.S.C. § 46301(a)(5) is cited, the same 

sentence cites the proper civil penalty amount of $25,000. The specific subsection cited 

in the complaint directed Pinnacle to the definition for small business concerns, located at 

was not a "mere papei-work error," See In the Maner of Eastem Air Center, HAA Order 2008-3 at 4 (Jan. 

28, 2008). 

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5 U.S.C. § 632. Pinnacle was, therefore, on notice at the time ofthe complaint that a 

small business can have no more than 1,500 employees. It was also, presumably aware, 

that it did nol meet that criteria. And, most importantly, it was on notice ofthe civil 

penalty sought by Complainant. 

Although Complainant did not put on specific evidence that Pinnacle was not a 

small business concern, it was never raised as an issue at any point in the proceedings, 

i-'innaclc never claimed, and does not argue now, ihai it is a small business or thai il 

legitimately qualifies for the reduced civil penalty afforded under 49 U.S.C. 46301(a)(5). 

Pinnacle did raise any argument or affirmative defense that the maximum $25,000 per 

violation did not apply or that the agency was seeking a statutorily inappropriate civil 

penalty. In ils answer and in discovery, when asked to set forth the specific bases for its 

denials, which would have included any denial that a maximum civil penalty of $25,000 

applied. Pinnacle did not articulate this argument. Pinnacle did not, at any point in the 

hearing before the Al .J, argue or present any evidence that it was not subject to ihe 

general civil penalty provision of $25,000 for each violation. Pinnacle waited until the 

record was closed and then pointed out in ils post-hearing brief, for the first time, a 

typographical error in the complaint. 

Although the A1..J was certainly aware ofthe error in the complaint, by virtue of 

post-hearing briefs on the subject, it appears that the ALJ picked up this error in his initial 

opinion. Initial Decision at 4, 16. The ALJ, however, correctly notes througliout the 

decision that Pinnacle is liable for a civil penalty of $25,000 in his final order. Id. The 

ALJ's en-or is hamiless as it does nol affcel ihe outcome ofthe case. Market St. Ry. Co., 

324 U.S. at 561-562; In the Matter of Toyota Motor Sales. USA, Inc.. FAA Order No 94-

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28 (1994). In other words, had the ALJ not made the mistake, the result would have been 

the saine. 

When the ALJ referred, during the hearing, to publicly available, widely-known 

information about Pirmacle as a large air carrier and publicly traded company that the 

judge believed the FiAA should have been aware of, Pinnacle's counsel made no 

objection, Tr, 58. In fact, Pinnacle's counsel later argued himself that the agency should 

have been aware of and accountable for publicly available information. See Tr. 63-64. '^ 

Pinnacle did not iniroducc any evidence, testimony, or aigument that it is a small 

business concern or that it was under the belief and impression thai il was subject to only 

$11,000 per civil penalty. Pinnacle did not enter into the record any evidence as to its 

size or even raise the issue before the ALJ who could have corujidered the argument and 

any evidence to support it. At hearing, when Complainant's counsel argued that the 

maximum civil penalty for each violation was $25,000, Pinnacle's counsel did not objeei 

or argue that any other civil penalty maximum applied. See, e.g., Tr. 198-199. 

Pinnacle argues that "Judge Benkin erred in assuming ihal Pinnacle was subject to 

the statute which encompasses a $25,000 maximum penalty for large size carriers." 

Appellant's Brief at 30. However, any error in this regard was harmless because, in fact, 

Pinnacle is a large air carrier. Information about Pinnacle's size and employee base is 

widely available. Pinnacle's own publicly-available website states that it has "4,400 

employees" http;//www.fiypinnacle.coni/site/about/facts.php (accessed 2/23/10). The 

'" Coun.sel for I'innacle argued at hearing thai informauon about the company that is "publicly 

available on ihe internet," wa.s not unfair surprise to the FAA, See Tr, 63-6'1 (discussing financial 

statements that had not been provided to the FAA until ju.st before the hearing in di.scovery), Ihe number 

of people Pinnacle Airlines employs is well known to Pinnacle and is easily confirmed through Ihe internet 

and publicly available sources pointed to by Pinnacle during the hearing. 

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FAA, in proposing the appropriate civil penalty, considered the publicly available 

information about the size of this company and proposed a civil penalty that was entirely 

consistent with the statutory mandates. 

The ALJ may have cited to the improper subsection, bui "the slalule authorizing 

the imposition of eivil penalties, 49 U.S.C § 43601," Initial Decision at 14, was always 

set forth in the pleadings. Pinnacle was on notice ofthe amount of civil penalty proposed 

and was in no way prejudiced in its rights lo refute the violations by this error. 1 he ALJ 

ordered a civil penalty that was appropriate under law and policy. 

It is well established that harmless error, which has no effect on the ultimate 

decision or outcome and does not prejudice the rights of the litigants, is not a basis for 

overturning a decision on appeal. See, e }i, Market St. Ry. Co. v. RR Commission of State 

ofCA, 324 U.S. 548, 561-562 (1945); In the Matter of Toyota Motor Saks, USA, Inc., 

FAA Order No 94-28 (1994). In this case, the typographical enor did not prejudice the 

rights of either party and had no effect on the amount of civil penalty ordered. Pirmacle 

clearly is not a small business. Pinnacle was on notice on September 10, 2008 (six 

months before the Complaint was even filed), that the FAA intended to seek a civil 

penalty of $200,000. See Notice of Proposed Civil Penalty, Exhibit A-15. A civil 

penalty of $200,000 would be appropriate even if the small business provision applied 

and the maximum civil penally weis $11,000 per violation, given that there were 20 

violations proven. The FAA Decisionmaker has previously held that even where an ALJ 

employs an unauthorized method of determining the sanction, the error was harmless if 

the ALJ arrived at an appropriate sanction anyway. In the Maner of Blue Ridge Airlines, 

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FAA Order 99-15 at 5 (1999). fhe civil penalty ordered in this case was entirely 

appropriate under the statute and should be upheld,'^ 

b. It was consistent with law and policy for the ALJ to consider 

Pinnacle's violation history, which was established by a 

preponderance ofthe reliable, probative, and substantive evidence. 

It was appropriate for the ALJ lo consider Pinnacle's hi-siory of violations when 

he ordered the civil penally in ihis case. F/VA Order 2150.3A expressly provides that any 

history of violations shall be considered when a civil penalty is proposed for violations of 

FAA regulations. Exhibit A-5, The Administrator has expressly held that the history of 

violations is an appropriate consideration in determining a civil penalty for violations ol" 

FAA regulations. See, e.g.. In the Matter of Folsom's Air Service, Inc., FAA Order No. 

2008-11 at 11, 12(2008). 

The evidence Complainant presented and proved by a preponderance ofthe 

evidence was that Pinnacle Airlines has a history of violating the FAA regulations, 

Complainant demonstrated that Pinnacle was found to have violated the FAA drug and 

alcohol testing regulations in five prior cases, ^fe-Exhibit A-8, A-9, A-10, A-11, A-12. 

Complainant introduced records into evidence that support this conclusion, as well as 

testimony from Amy Frankel, the Field Operations Branch Manager at the FAA, who 

Pinnacle claiiris, without citation to the transcript, that Complainant argued at hearing Ihat the 

small business exemption was anr^endcd lo inerea.se the civil penalty to $25,000. Pinnacle also claims that 

the same argument was made in the Complaint and in Ihc FAA's post-hearing brief. A review ofthe 

documents themselves reveals that no such argument was made. Al hearing, complainant argued that the 

civil penalty siaime, 49 U.S.C. § 46301, was amended to increase the maximum civil penalty fi-om $10,000 

to $25,000 after FAA Order 215U.3A was adopted. Tr. 198, This is accurale. On December 12, 2003 

through Public Law 108-176 (2003 HR 21 l,i), the maximum civil penalty for violations of FAA 

regulations was increased irom .SIO.OOO to 125,000. Prior to that change, 49 U.S.C. § 46301(a)(1) provided 

for u civil penalty of not more than $1,000 and § 40301 (2) provided that air carrier."; were liable for a civil 

penalty ofnoi more than $10,000, As Complainant's counsel explained at hearing, FAA Order 2150.3A 

was adopted prior to this statutory ehange and, therefore, the maximum ranges listed in the Order were 

actually higher than what was reflected in the order. Tr. 1Q8. 

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personally reviewed the FAA's computer records containing information with regard lo 

the company's violation history and offered competent testimony about that history. 

Pinnacle challenges, for the first time, the veracity ofthe documents used as 

evidence ofthe prior violations contained in the FAA's Enforcement Information System. 

The Enforcement Information System (EIS) Ms an automated management information 

system that tracks the FAA's enforcement actions on a nationwide basis." FAA Order 

2150.3B, 9-1 (2)(a). EIS "is the FAA's primary database for tracking information about 

enforcement actions for statutoty or regulaiory violalions." Id. See also Tr. 160-161, 

The documents introduced into evidence at hearing were official records kept in the 

ordinary course of business and tiiey were introduced through an agency witness who 

testified that she personally reviewed the infomiation contained in the ElS. I'r. 159-160. 

The EIS reports arc reliable and probative and demonstrate, by a preponderance ofthe 

evidence, that Pinnacle has a violation history. Pinnacle did not object to the 

admissibility or authenticity of these documents on imy foundational grounds.''* 

Moreover, the agency presented credible testimony about the prior violations. 

Ms. Frankel testified that she fully reviewed the violation history of Pinnacle Airlines on 

file with the FAA, Tr, 160,''^ She testified that the exhibits admitted into evidence to 

prove the violation history were generated from the EIS system and that it is the system 

through which all FAA enforcement cases are maintained, fr. 161. 

''' The only objection Pinnacle made at hearing that it al.'io makes on appeal was that the agency 

did not provide the lilS reports through discovery. Tr, 154, However, as the transcript clearly shows. 

Pinnacle's counsel could not identify any discovery request in which it specifically requested documents or 

evidence related to prior violations by Pinnacle Airlines, 'l"r. 156.'" The AIJ, therefore, overruled the 

objection. !d. 

" M.S. Frankel testified that, consistent with FAA Order 2I50.3A, the FAA considered Pinnacle's 

violation history as a factor in proposing the appropriate civil penally. Tr. 153. 

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Pinnacle does not dispute that a violation history exists. Counsel for Pinnacle 

Airlines freely adnutted to prior violations on the record at hearing. Tr. 78."^ Pinnacle 

also concedes on appeal that four ofthe EIS reports clearly state that an "ORD 

ASSESSfNIG CP" was issued, leaving no real dispute about whether a finding of 

violation was entered.''' Appellant's Brief al 33. Although Pinnacle argues ihat the 

reports contain "abbreviated language," Ms. Frankel testified to as to the meaning of this 

language. In particular, she testified that the reports reflected an "ORD - which is order 

- assessing civil penalty." Tr. 165. Vhe reports demonstrated everything that was 

necessary to establish; that a violation hi.story existed. The underlying facis of those 

violations were immaterial to the case at hearing.'* 

The ALJ correctiy found ihat the evidence established an "unenviable history of 

non-compliance with the FAR provisions pertaining to pre-employment and pre-transfei" 

"' Counsel for Respondent stated in his opening statement: "[l]ook into the facts, yes Pinnacle docs 

have some prior violations, and we acknowledge that and that goes to aggravating the amount ofthe 

penalty, I acknowledge that.' Tr. 78. 

'^ An Order Asses.sing Civil Penalty (OACP), as a maner of course, contains the Administrator's 

findings of violation, Stt, e.g., Tr. 166. In rare circumstances, under 14 C,F,R. § 13.16(n) (1) "[a]n agency 

attorney may compromise any civil penalty action where a person charged with a violation agrees to pay a 

civil penalty and the FAA agree.*! not to make a finding of violation," If a settlement agreement for the 

amount of civil penalty .simply results in an OACP, the violations will be considered in subsequent cases. 

Pinnacle admits that four of ihc EIS reports indicate ihat an OACP was issued. See Appellant's Brief at 33, 

referring to Exhibits AS, A-9, A-11 and A-12. Because OACPs contain findings of violation, there can be 

no dispute that a violation history wa.s proven by these repoiTS and the corresponding testimony. Pinnacle 

ha.s presented no evidence to counter the tcsLimony rhat the remaining violation also resulted in a finding of 

violation. See 'f r, 167, referencing A-10, Although Pinnacle argues thai the "different demarcation on rhe 

[remaining! EIS report may indicate that a different disposition was reached", he failed to elicit testimony 

to suppon this speculation during the hearing. Appellant's Brief at 33. On cros.'^-examination, counsel 

cenainly could have drawn oul any ambiguity. However, he did not ask Ms. Frankel what rhat demarcation 

meant or whether an Order of Compromise had been issued. He did not in any way refute her testimony 

thai a violation had been found. Pinnacle prescnicd no evidence that any of these matters were resolved in 

Orders of Compromise or without finding."; of violation. Pinnacle simply failed to rebut the credible 

evidence presented at trial. 

'" The witness did not need to know "specifically what happened to cause these pre-employment 

violations" or rhe specific number of violalions in each civil penalty action. See Tr. 183, Appellant's I3rief 

at 33, The violation.5 were established as a maner of record with the f-'AA. Similarly, it is iiiunaierial 

whether a finding of violation was reached through settiemeni or adjudication; they are treated the same for 

purposes of violation history. Tr 166, Appellant's Urief at 33. 

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testing of its employees." Initial Decision at 14. Credible evidence supported the ALJ' s 

finding that Pimiacle Airiincs had a history of violations which was appropriately 

considered in assessing a eivil penalty in this matter. 

c. Remedial Action was considered by the ALJ and found tu be 

ittsufticient to warranl a reductiun in civil penulty; this determination 

should be upheld. 

Pinnacle asserts ihat the ALJ erred by not reducing the civil penalty based on 

remedial action. Appellant's Brief at 22. AAer considering all the evidence presented by 

Pinnacle as to its corrective action, the -A.! .J held that 

[gjiven the fact that the burden of persuasion rests on the shoulders ofthe 

Respondent, it is not possible at this time to conclude to Pinnacle's effort to tfikc 

corrective action will achieve results that are sufficient or swift within the 

meaning of [law]. 

Initial Decision at 12, citing, Westair Commuter Airlines, FAA Order No. 1993-18 at 11 

(1993), American Air Network, FAA Order No. 2006-5, Docket No. CP40WP00I4 

(February 10, 2006). Pinnacle failed to demonstrate that it undertook corrective action 

sufficient to warrant a reduction in civil penalty. Pinnacle cites to several actions it look 

in response lo ihe violation. First, Pinnacle implemented a new computer system, since 

ils existing system was, by its own employees description "old and antiquated." Tr. 216, 

219, Piimacle takes issue with the ALJ's statement that "the acquisition of a new 

computer program is a relatively easy slep lo take; why would an airline of Pinnacle's 

size and resources continue to depend on a computer program that it's own staff 

characterizes as 'old and antiquated?'" Initial Decision at 12, Appellant's Brief at 31. 

However, Pinnacle's in-house counsel boasted at hearing that Pinnacle "ha[s] about 30 If 

people." I'r. 87. It is certainly reasonable for the ALJ to question why any company 

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would rely on an inadequate computer system and then expect a reduction in civil penalty 

when the computer system is replaced with a more appropriate, functional one. 

Implementing a new computer program that allows Pinnacle to "track whatever 

data we like, so it gives us an opportunity to track their [safety-sensitive hire] dates, their 

drug testing dates, lots of information," offers no assurance that compliance will be 

achieved. See Tr. 219-220. A new computer system may allow for more data input and 

greater tracking, but il does not, by itself, "promise to be effective in eliminating 

Pinnacle's heretofore laisse?:-faire approach to pre-employment drug testing without a 

change in attitude toward these requirements by its management as well." Initial 

Decision at 12. Data entry and tracking is perhaps one component that will assist a 

company in complying with the regulations, but it is by no means a guarantee of greater 

compliance when systemic problems exist in iis drug testing program. Tr. 201. 

Second, Pinnacle claims that it took "swift and comprehensive action" that 

warrants a I'eduction in civil penalty when it changed the format for training managers 

from a lecture to an online training. Tr. 248-249, There is no evidence to support the 

claim that online training will be, or is, any more effective than a lecture environment. 

The cases cited by Pinnacle to support its claim that changing its training format warrants 

a reduction in civil penalty are not precedential and do not support a reduction in this 

case. Appellant's Brief at 24, citing the Matter of Mole-Master Services Cor/?., DMS No 

FAA-2008-069] al 5 (Feb. 10, 2009), FAA v. Husky Corp., FAA 2007-0120 at 6 (Oct. 31, 

2008). Third, Pinnacle claimed ihat its correciive action included "retraining managers 

on drug and alcohol testing." Appellant's Brief at 23. There is no transcript citation or 

testimony to support this claim. 

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Fourth, Pinnacle claims that it implemented new procedures and audits in an 

effort to achieve compliance with the regulations. Id. However, the testimony about any 

new procedures was very limited and no internal policy was introduced into evidence. 

Pirmacle only presented testimony that it has new procedures for verifying negative 

DOT-required drug test results for Ground Security Coordinators (GSC) before allowing 

them to attend training. Tr, 251-252. As was previously discussed, there were three 

categories of violations in this case; pre-employment testing violations for new hires 

performing safety-sensitive functions (in this case, maintenance or preventive 

maintenance); pre-employment testing violations for individuals transferred into a safetysensiiive function (in this instance, GSC), and violations ofthe DOT requirements for 

random drug and alcohol testing (for a dispatcher). Pinnacle presented no evidence of 

any remedial action talcen lo ensure compliance with the regulations for new hires, for 

random drug and alcohol testing, or for any safety-sensitive functions other than GSC. 

The ALJ correctly concluded that the evidence presented regarding Pinnacle's 

remedial measures was unpersuasive. The ALJ observed that "Pinnacle is just taking 

steps it should have taken years ago." Initial Decision at 12. While corrective action 

may prevent fiiture violations and bring a company into compliance with the regulations, 

it docs not excuse violations thai have already occurred. In the Matter ofMauna Keci 

Helicopters, FAA Order No. 97-16 at 4, FN 13 (1997). 

d. The civil penalty ordered by the ALJ was consistent with law and 

policy and should be upheld. 

The civil penalty ordered in this case is appropriate. Under FAA policy, the 

violations in this case fell into the maximum range for civil penalties, fr. 196-197, Each 

ofthe violations in this case was subject to a maximum civil penalty of 525,000 per 

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violation, meaning that a total civil penalty of $500,000 could have been sought by 

Complainani. Complainant sought a civil penalty of $200,000 after considering all the 

facts and circumstances set forth in FAA Order 2150.3A. Tr. 153 (noting the factors set 

forth in FAA Order 2150.3A.). Ilic FAA Decisionmaker has recognized that "Law 

Judges must follow the sanction guidance contained in FAA Order 2150.3A," the purpose 

of which "is to promole nationwide consistency and fairness in the setting of civil 

penalties." In the Matter of Blue Ridge Airlines, FAA Order 99-15 at 3 (1999), citing 

FAA Order 2150.3A Appendix 4, p. 1, Eilxhibii A-5, The FAA Decisionmaker has 

stressed that ''it is incumbent upon law Judges to apply agency policy faithfully." In the 

Matter of Northwest Airlines, FAA Order No. 1990-37 at 8-9 (1990). 

The ALJ weighed the factors and evidence and determined that an appropriate 

civil penally had been proposed. Initial Decision at 4-17. Ihe ALJ provided a thorough, 

reasonable explanation ofthe amount of civil penalty assessed. See In the Matter of 

Toyota Motor Sales, USA. Inc., FAA Order No 94-28 (1994); In the Matter of Blue Ridge 

Airlines, FAA Order 99-15 at 3 (1999) ('Jaw judges are expected to give a reasoned 

explanation ofthe amount ofthe civil penalty selected''). Tlie ALJ's explanation 

accounts for all mitigating and aggravating factors and is in accordance with law and 

policy, 

CONCLUSION 

A preponderance of reliable, probative, and substantial evidence supports the 

ALJ's finding that Pinnacle committed the violations of tlie FAA regulations alleged in 

the Complaint in this matter. His conclusions were in accordance with law, precedent, 

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and policy, No prejudicial errors occurred and there is no basis upon which to reduce the 

civil penalty on appeal. Therefore, the AlJ's decision should be affiraied in its entirety. 

Respectfully submitted, 

Peter J. Lynch 

Assistant Chief Counsel 

Enforcement Division, AGC-300 

•^t/fa Ponto 

'Attorney, AGC-300 

Federal Aviation Administration 

Office ofthe Chief Counsel 

800 Independence Avenue, S.W. 

Washington, DC 20591 

(202) 267-9863 

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03/11/201 0 17:2 4 FAX 202493514 2 FAA * DMS 0039/039 

Certificiile of Service 

I hereby certify that on this date I have sent by Federal Express a copy of 

Complainant's Reply Brief/?? the Matter of Pinnacle Airlines, DMS No. FAA-2009-

0180. FAA Dockei No. CP09SO0002 addressed to; 

W. Chris Harrison 

Director of Legal Affairs 

Pinnacle Airiincs, Inc. 

1689 Nonconnah Boulevard 

Suite 111 

Mempliis, TN 38132 

I hereby ceitify that on this date I have sent by Federal Express a copy ofthe 

foregoing document to: 

F AA Decisionmaker 

Federal Aviation Adrtiinistration 

600 Independence Avenue, S.W. 

Wilbur Wright Building - Suite 2W1000 

Washington, O.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

I hereby certi Fy that on this date I have sent by U.S. Mail the original and two 

copies ofthe foregoing document to: 

FAA Decisionmaker 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Wilbur Wright Building - Suite 2W1000 

Washington, D.C. 20591 

Attn; Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building, Suite 2W1000 

- / : 

UJ,.4^^^ ^ 

Dated: March 10, 2010 

39