u.s. DEPARTMENT OF TRANSPORTATION R E c E I v ED 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

AUG -6 2014 

HEARING DOCKET 

In the Matter of: FAA DOCKET No. FAA-2013-0040 

Martinaire Aviation, LLC 

Respondent 

THE HONORABLE RICHARD C. GOODWIN 

ADMINISTRATIVE LAW JUDGE 

FAA Case No.2011SW700189 

(Civil Penalty Action) 

FDMS No. FAA-2013-0040 

COMPLAINANT'S POST HEARING BRIEF 

COMES NOW the Federal Aviation Administration ("FAA"), by 

and through its attorney, and files its post hearing brief. 

This brief seeks a civil penalty against Martinaire Aviation LLC 

of $206,550.00. 

I. STATEMENT OF THE CASE 

On January 15, 2013, the FAA filed a Complaint against 

Martinaire Aviation, LLC ("Martinaire") seeking a civil penalty 

of $206,550.00 for violation of the Federal hazardous material 

transportation Law and hazardous material regulations. The 

violations arose from a comprehensive hazardous materials 

inspection conducted by FAA Special Agents on July 8, 2011. The 

inspections revealed numerous violations that involved 

Martinaire's failure to provide notice to the pilot-in-command 

regarding 17 shipments containing hazardous materials. 

<~1_-J 

On June 17, 2013, the FAA filed Complainant's Motiott'i for ·, '~ .,, 

Decision. Martinaire's Answer to the Complaint admitted each of 

the facts underlying the allegations of the Complaint. On July 

8, 2013, Judge Goodwin found and concluded that Respondent 

Martinaire violated 49 C.F.R. §§ 175.33(a) (1), 175.33(a) (1) (i), 

and 17 5. 33 (a) ( 7) of the hazardous material regulations. On 

Complainant's Motion for Decision, Judge Goodwin granted 

Complainant's Motion for Decision as to the allegations in the 

Complaint and denied Complainant's argument for the proposed 

civil penalty. 
II. Issue 

The sole issue before this Court is whether a civil penalty of 

$206,550.00 is appropriate for the facts and circumstances of 

this case. The FAA contends that based on the totality of 

circumstances in this case a civil penalty of $206,550.00 is 

warranted and reasonable. 

III. Legal Standard 

To determine an appropriate civil penalty to be assessed 

under 49 U.S.C.A. § 5123(c) Penalty considerations, nine factors 

must be taken into consideration. These factors are (1) nature, 

(2) circumstance, (3) extent, and (4) gravity of the violation; 

(5) the degree of culpability of the violator; (6) any history 

of past violations; the violator's (7) ability to pay, and (8) 

ability to continue to do business; and (9) other matters as 

justice may require. 

"The FAA has the burden of proving the first five factors. 

The FAA has established policy guidance for determining these 

five factors and assigning them weight. 64 Fed. Reg. 19443 

(Apr.21, 1999); FAA Order 2150 38, Appendix C, FAA Sanction 

Guidance, Hazardous Materials Enforcement (October 1, 2007). A 

penalty calculated in accordance with the FAA's policy guidance 

should stand, absent a showing of the Respondent's inability to 

pay, inability to continue to do business, or some other matter 

required by justice. See In re Villamos Tabula, FAA Order No. 

2010-6 (June 15, 2010); In re Rushmore Helicopters, Inc., FAA 

Order No. 2012-8 (Oct. 11, 2012). Financial hardship is an 

affirmative defense that the respondent bears the burden of 

proving. In re TWA, FAA Order No. 1999-120; In re Dominion 

Concepts, Inc., FAA Order No. 2005-4, 10, n.l6 (Mar. 10, 2005). " 1 

The FAA is entitled to substantial deference in 

establishing an appropriate civil penalty. The United States 

Court of Appeals for the District of Columbia Circuit in NL 

Industries, Inc. v. Department of Transportation, Federal 

Aviation Administration, 901 F.2d 141 (1990), enunciated the 

standard by which to evaluate the reasonableness of a civil 

penalty assessed under the Federal hazardous material statute. 

The court held that the agency's "choice of a sanction is not to 

be overturned unless 'it is unwarranted in law' or 'without 

justification in fact.'" NL Industries at p .144 (quoting 

1 In the Matter of Nouveau Laboratories, LLC d/b/a Covermark USA, Docket No. 

FAA-2011-0488 at p. 3. 

2 
Panhandle Cooperative Ass'n v. EPA, 771 F.2d 1149, 1152 (8th Cir. 

1985) (quoting Butz v. Glover Livestock Comm'n Co., 411 U.S. 

182, 185-186, 93 S.Ct. 1455, 1457-58, 36 L.Ed. 2d 142 (1973)). 

Thus, the amount of civil penalty assessed in a particular case 

is a matter of administrative discretion. See, Beall 

Construction Co. v. Occupational Safety & Health Review 

Commission, 507 F.2d 1041, 1046 (8th Cir.l974); Tempo Trucking & 

Transfer Corp. v. Dickenson, 405 F. Supp. 506, 514 (E.D.N.Y. 

197 5) . 

IV. Respondent's Affirmative Defense Arguments 

Martinaire has (7) seven affirmative defenses. These 

affirmative defenses are stated in detail in Respondent's answer 

to the FAA's complaint. First, Martinaire claims the sanction 

the FAA seeks "far exceeds policy, precedent and Complainant's 

own Sanction Guidance Table." Secondly, it claims the FAA's 

case is without "basis or jurisdiction in law or fact." In its 

third affirmative defense, Martinaire argues that "audits have 

shown that compliance has been achieved." In its fourth 

affirmative defense the Respondent outlines its corrective 

action. Its fifth affirmative defense claims that Respondent 

"has taken all necessary corrective action to avoid repeated 

mishaps .... " The sixth affirmative defense claims that the civil 

penalty in this case is inconsistent with the 2150.3B Order. 

Respondent's seventh affirmative defense claims that "as a small 

company that operates only small aircraft with less than 100 

employees, the burden on Martinaire caused by a $206,550.00 

penalty would be unsurmoutable." The arguments set forth below 

demonstrate that these affirmative defenses have no merit. 

V. Nature and Circumstances of the Violation 

The comprehensive hazardous material inspection on July 8, 

2011 by the FAA Special Agents revealed numerous violations that 

involved Martinaire's failure to provide notice to the pilot-incommand regarding 17 shipments containing hazardous materials. 

Martinaire failed to include the correct proper shipping name, 

the proper shipping name, the complete proper shipping name, the 

correct basic hazardous material description, hazard class, 

packing group, identification number and correct identification 

number on Notices to the Pilot-in-Command ("NOPICs") . 

Four of the (17) seventeen shipments that contained a risk 

Category "A" hazardous material were incorrectly listed on the 

NOPICs. A risk category "A" hazardous material poses a 

catastrophic risk to the safe flight of an aircraft when 

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released on an aircraft. 2 Four of the shipments that contained a 

risk category "B" hazardous material were incorrectly listed on 

the NOPICs. A risk category "B" hazardous material does not 

pose an immediate risk to the flight of an aircraft, but it can 

cause death or injury if released in the confines of an 

aircraft. 3 Four of the shipments that contained a risk category 

"C" were incorrectly listed on the NOPICs. A risk category "C" 

are hazardous materials that present the least amount of risk to 

the transportation system. 4 Five of the shipments contained risk 

category "A", "B", or "C" hazardous materials and were 

incorrectly listed on the NOPICs. 5 

VI. Extent and Gravity 

Improperly completed NOPICs pose a serious threat to the 

health and safety of the pilot who flies the aircraft and the 

first responders who have to react to a crash or a fire aboard 

the aircraft. In the event of an emergency, a Martinaire pilot 

would not be able to inform its dispatch facility, an air 

traffic tower or emergency response team of the kind of 

hazardous material aboard the plane. In addition, the dispatch 

office for Martinaire receives copies of the NOPICs which the 

pilot-in-command completes. In the event of an emergency the 

dispatch office would not be able to inform first responders of 

the nature of the hazardo~s material aboard a Martinaire 

aircraft. Without knowledge of the specific properties of a 

hazardous material, first responders would be incapable of 

responding to an emergency in a safe manner. 

On direct examination, Special Agent Paul Klimas described 

the conditions of the NOPICs as "horrible". 6 The NOPICs Special 

Agent Paul Klimas reviewed were only a sampling of the 

violations he observed. 7 

2 See Order 2150.3B, Appendix C. Sanction Guidance Hazardous Materials 

Enforcement, RISK CATEGORIES, (Figure C-2) at p. C-17. 3 Id. at C-17. 4 Id. at C-17. 5 Martinaire did not retain copies of the shipping papers concerning these 

five shipments. As a result the FAA does not know the packing group of two 

hazardous material shipments at issue. In each instance, the risk category 

is dependent on the packing group. For example, packing group I would result 

in a risk category "A" material, packing group II would result in a risk 

category "B" material; and packing group III would result in a risk category 

"C" material. 6 Transcript of Martinaire hearing on June 18, 2014 at p. 83. 7 Id. at p. 90. 

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VII. The Degree of Respondent's Culpability 

Martinaire holds an Air Carrier Certificate issued under 

part 119 of the Federal Aviation Regulations ("FAR") and 

operations specifications issued under part 135 of the FAR. 

Martinaire operates (34) thirty four airplanes. It owns twenty 

one of the aircraft and leases the remainder. 

Martinaire is an American cargo airline that operates 

feeder flights for overnight package delivery services for UPS 

and DHL. Martinaire regularly accepts and transports hazardous 

materials. Because it is a 135 cargo carrier, it is held to the 

highest standard of care. It owes a higher duty of care to its 

pilots, first responders and the public at large. Moreover, 

Alan Rusinowitz, an executive vice president and chief operating 

officer for Martinaire, is a licensed airline transport pilot. 8 

Therefore, Martinaire's personnel knew or should have known the 

specific information that should be provided to pilots-incommand, via a NOPIC, prior to the departure of each flight. 

Consequently, the degree of culpability for Martinaire is 

extremely high. 

VIII. The Respondent's Prior Violations 

In June 2009, Martinaire was assessed a civil penalty of 

$20,000.00 for failing to properly complete NOPICs. 9 On May 18, 

2012, the FAA assessed a $15,000.00 civil penalty against 

Martinaire for the illegal shipment of hazardous material. 10 As 

recently as December 2013, a FAA Special Agent conducted an 

inspection at the Martinaire facility. 11 This inspection 

revealed that any previous corrective action by Martinaire had 

not solved the improper completion of NOPICs. Clearly 

Martinaire's continued violation history and its lack of 

effective corrective action demonstrates its conduct of 

violating the hazardous material regulations is systemic. This 

systemic conduct poses a serious threat to the health and safety 

of Martinaire's pilots, first responders and the public at 

large. 

8 Id. at p.l20. 9 See FAA Case No. 2009NM700058, attached to Complainant's Motion for Judicial 

Notice, dated June 2, 2014. 

10 See FAA Case No. 2011-GL-70-0205, attached to Complainant's Motion for 

Judicial Notice, dated June 2, 2014. 11 Transcript of Martinaire hearing on June 18, 2014 at p. 61. 

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IX. Respondent's Ability to Pay 

In Martinaire's seventh affirmative defense, it claims that 

"as a small company that operates only small aircraft with less 

than 100 employees, the burden on Martinaire caused by a 

$206,550.00 penalty would be insurmountable." Respondent bears 

the burden of proving its inability to pay and an inability to 

continue in business. See Giuffrida, FAA Order No. 1992-72 

(December 21, 1992). During the hearing Mr. Rusinowitz 

testified that for the year 2011 the company earned 

approximately $197,169.00. 12 Mr. Rusinowitz testified that for 

2012 and 2013 the company did not earn a profit. 13 In his 

testimony before the Administrative Law Judge, Mr. Rusinowitz 

attributed Martinaire's earnings in the most recent years to a 

sluggish economy. 14 Although Martinaire's earnings in the last 2 

years have been flat, these earnings are not indicative of its 

ability to pay a civil penalty of $206,550.00. Respondent 

failed to submit into evidence any financial statements or tax 

returns to support its assertions that a civil penalty of 

$206,550.00 would be insurmountable to the company. 

Consequently, Respondent has failed to show a nexus between the 

proposed civil penalty and a negative effect on the company. 

X. Effect Ability to Continue in Business 

Another factor under 49 U.S.C.A. § 5123(c) which the FAA 

considers in assessing a civil penalty is "respondent's ability 

to continue in business." Respondent did not put any evidence 

on during the hearing to show that a civil penalty of 

$226,550.00 would put Martinaire out of business. During Mr. 

Rusinowitz's deposition on May 16, 2013, counsel for the FAA 

asked Mr. Rusinwitz, the following question: 

FAA Counsel: "Will a $206,550.00 civil penalty put 

Martinaire Aviation, LLC out of business?" 

Mr. Dworkin: "Objection. Speculative" 

Mr. Rusinowitz: Well, we lost money in 2012. I believe we 

provided a partial year at the time of submittal, the end result 

was a bigger loss. We have lost money in the first quarter of 

2013. So any not-in-the-ordinary-course-of-business payments 

that Martinaire has to do, including attorney's fees for this 

matter, and any possible civil penalty, whatever the amount, 

12 Transcript of Martinaire hearing on June 18, 2014 at p. 122. 13 Transcript of Martinaire hearing on June 18, 2014 at p. 123-124. 14 I d. at p. 124. 

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could be extremely harmful and 

of Martina ire Aviation, LLC. " 15 

did not show a nexus between a 

detrimental to the survivability 

During the hearing Respondent 

civil penalty of $226,550.00 and 

Martinaire's ability to remain in business. No financial 

statements were offered into evidence and no tax returns were 

provided by the respondent. 

Such Other Matters as Justice May Require 

The final factor which the FAA must consider in assessing a 

civil penalty is "such other matters as justice may require." 

The FAA requests that the Court give deference to the FAA's 

Order 2150.3B, Appendix C, Sanction Guidance Hazardous Materials 

Enforcement ("Order 2150.3B.") The civil penalty of $206,550.00 

is reasonable based on the totality of circumstances in this 

case. Under the agency sanction guidance, the failure to 

provide the pilot-in-command with an accurate and complete NOPIC 

warrants a civil penalty for each individual shipment between 

$5000.00 and $16,000.00. 16 The midpoint of the range is 

$10,600.00. A civil penalty of $206,550.00 based on the totality 

of circumstances in this case does not exceed the civil penalty 

sanction guidelines set forth in the 2150.3B Order. 

The Respondent claims in its affirmative defenses that it 

has done specific corrective action. Unfortunately, as the FAA 

witnesses, Paul Klimas and Bryan Buchanan testified, any 

corrective action has not eliminated the systemic problem. 

Secondly, Respondent has not performed any corrective action 

that exceeds the legal minimum requirement which would justify a 

reduction in civil penalty. 

CONCLUSION 

In short, Martinaire is an American cargo airline that 

operates feeder flights for overnight package delivery services 

for UPS and DHL. Under the Order 2150.3B, Martinaire is 

classified as a Group II Air Carrier because it has an annual 

operating revenue of less than $100,000,000, has 50 or more 

pilots, and operates 25 or more aircraft. Martinaire regularly 

accepts and transports hazardous materials. Martinaire has a 

history of non-compliance and its conduct is systemic. Because 

it is an airline, it is held to a higher standard of safety. 

15 A copy of the deposition excerpt is attached as exhibit A. 16 See Order 2150.3B, Appendix C. Sanction Guidance Hazardous Materials 

Enforcement, AIR CARRIER AND OTHER AIRCRAFT OPERATOR VIOLATIONS, E.Group I & 

II Air Carriers and Other Aircraft Operators, Failure to provide notice to 

the pilot-in-command, at p. C-13. 

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Martinaire's personnel knew or should have known the specific 

information that should be provided to pilots-in-command, via a 

NOPIC, prior to the departure of each flight. Based on the 

totality of circumstances, the FAA requests a civil penalty of 

$206,550.00 be rendered against Martinaire. 

Respectfully submitted this 5~ day of August 2014. 

ERIC E. ANDERSON 

Regional Counsel 

Southwest Region 

~~~~~wca"'~Lc_j Archier, Agency Attorney 

(817) 222-5074 

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FEDERAL AVIATION ADMINISTRATION v. MARTINAIRE 

Deposition of: ALAN RUSINOWITZ 5/16/2013 

44 

is we have to consider the ability of the respondent to 

pay a civil penalty. And the other is the effect on the 

respondent's ability to continue in business. 

Will a $206,000 -- $206,550 civil penalty put 

Martinaire out of business? 

MR. DWORKIN: Objection. There are other 

factors, which include compliance disposition, 

corrective action, and 

MR. ARCHIER: I'll read all of them if you 

want me to. I'll go through all of them. I just 

mentioned three, but there are other factors. 

MR. DWORKIN: There are a whole bunch of 

other factors. 

Q. (BY MR. ARCHIER) Yeah. Let me mention the other 

factors. I don't want to seem like I'm-- but the first 

factor is the nature and circumstances of the violation. 

The other is the extent and gravity of the violation. 

The degree of respondent's culpability, the respondent's 

prior violations, the respondent's ability to pay, the 

effect on respondent's ability to continue in business 

and such other matters as justice may require. That's 

all of them. 

But I'm asking you with regard to F, the effect 

on respondent's ability to continue in business. Will a 

$206,550 civil penalty put Martinaire Aviation, LLC, out 

U.S. LEGAL SUPPORT - DALLAS, TEXAS 

214-741-6001 ~ GOVERNMENT ~ EXHIBIT I A 
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FEDERAL AVIATION ADMINISTRATION v. MARTINAIRE 

Deposition of: ALAN RUSINOWITZ 5/16/2013 

of business? 

MR. DWORKIN: Objection. Speculative. 

Q. (BY MR. ARCHIER) You may answer. 

A. Well, we lost money in 2012. I believe we 

provided a partial year at the time of submittal, the 

end result was a bigger loss. 

We have lost money in the first quarter of 2013. 

So any not-in-the-ordinary-course-of-business payments 

that Martinaire has to do, including attorney's fees for 

this matter, and any possible civil penalty, whatever 

the amount, could be extremely harmful and detrimental 

to the survivability of Martinaire Aviation, LLC. 

Q. And I believe based on the documentation that you 

showed me for the first quarter of, I believe, 2013, I 

think you said you had a loss, right? 

A. Yes. 

Q. Okay. And I want to make sure I have this loss 

number right, but was.that loss in the neighborhood of 

300, 000? 

A. I don't believe we provided any financial data 

for calendar year 2013. 

Q. Okay. So that would have been -- the loss would 

have been for up -- at the time, that would have been 

for 2012? 

A. I'd have to review the documents --

U.S. LEGAL SUPPORT - DALLAS, TEXAS 

214-741-6001 

45 
CERTIFICATE OF SERVICE 

Re: Martinaire Aviation, LLC, FAA Case No. 2011SW700189 

I hereby certify that on this date, I have sent via Federal 

Express an executed original and one copy of the COMPLAINANT'S 

POST HEARING BRIEF addressed as follows: 

Federal Aviation Administration 

Attention: Hearing Docket Clerk, AGC 430 

600 Independence Avenue, SW 

Washington DC 20591 

Wilbur Wright Building-Suite 2W1000 

Washington, DC 20591 

(original plus one copy) 

(Federal Express) 

I further certify that on this date, I have sent via 

Federal Express a true copy of the COMPLAINANT'S POST HEARING 

BRIEF addressed as follows: 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: (202) 366-5121 Staff Assistant 

FAX: (202) 366-7536 

(Federal Express) 

9 
I further certify that on this date, I have sent via 

Federal Express a true copy of the COMPLAINANT'S POST HEARING 

BRIEF addressed as follows: 

Mr. Michael L. Dworkin and Associates 

Law Offices 

465 California Street, Suite 210 

San Francisco, California 94104-1808 

(Federal Express) 

Telephone: (415) 421-2500 

Facsimile: (415) 421-2560 

August 5, 2014 

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