UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D. C. ../: ;..,,.., • '• %^^ i% U 1'^^ ? r-

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Federal Aviation Administration, 

Complainant, 

vs. 

Air Charter Inc., 

Respondent. 

MAR 

;(r A . r •f'^s/l 

2.0tO 

i/OCKET 

FAA Docket No. CP09SO0008 

DMS No. FAA-2009-0100 

FAA Case No. 2008SO190254 

Judge Isaac D. Benkin 

COMPLAINANT'S APPEAL BRIEF 

Complainant, the Federal Aviation Administration (FAA), by and through the 

undersigned counsel, pursuant to section 13.233(d) of the Rules of Practice in FAA Civil 

Penalty Actions, 14 C.F.R. § 13.233(d), hereby files this brief in support of its appeal of 

the oral initial decision and order served by the Honorable Isaac Benkin, Administrative 

Law Judge (ALJ), on January 8, 2010. In accordance with section 13.233(b), the FAA 

Appeals the initial decision because the preponderance of the reliable and probative 

evidence in the record shows material errors of fact and conclusions of law in the ALJ's 

decision. 
STATEMENT OF THE CASE 

On May 6, 2009, the Federal Aviation Administration ("Complainant") issued a 

Notice of Proposed Civil Penalty (NPCP) to Air Charter Inc., d/b/a Air Flamenco 

("Respondent"). The NPCP alleged that Respondent had violated three Federal Aviation 

Regulations (FAR) as a result of operations on or about June 8, 2008, and proposed to 

assess a civil penalty of $11,000. On May 19, 2009, after Respondent received the 

NPCP, it requested a hearing. Respondent did not request an informal conference 

pursuant to 14 C.F.R. § 13.16(f)(3). Complainant filed its Complaint in this May 27, 

2009. 

The Complaint alleged the following factual allegations: 

1. At all times material herein Air Charter Inc., d/b/a Air Flamenco ("Air Charter") 

was and is now the holder of Air Carrier Certificate No. UOIA831U. 

2. On or about June 8, 2008, Air Charter operated civil aircraft N906GD, a BrittenNorman, BN-2A-26 (serial no. 3008) at Isla Grande, Puerto Rico. 

3. FAA inspectors observed a ground ambulance in attending to N906GD. 

4. The ground ambulance was attended by people who appeared to be paramedics. 

5. A person who appeared to be a patient was off-loaded fi-om N906GD onto a 

stretcher. 

6. The above-mentioned stretcher was installed backwards on N906GD (per BrittenNorman Manual Supplement #16 to Chapter 2.4). 

7. The above-mentioned stretcher had an improper number of safety belts (four) and 

therefore did not meet the standards of the Technical Standard Order (TSO-C22f). 

Britten-Norman Maintenance Manual, Supplement 16 to Chapter 2.4. 

8. Air Charter operated the above-described aircraft without a ciurent flight manual 

in the aircraft (FM/20 applicable (per Britten-Norman service letter, Issue #9)). 

9. The operations described above are in violation of Air Charter's approved 

operations specifications. 
Based on the foregoing. Complainant determined that Respondent violated three 

separate sections of the FAR: 14 C.F.R. Section 91.13(a), Section 119.5(g), and 

91.9(b)(1).' 

On July 9, 2009, the case was assigned to ALJ Isaac D. Benkin. On July 29, 2009 

Respondent filed its Answer. Respondent admitted the first two factual allegations listed 

above and denied the remainder. Prior to the hearing, both parties served and answered 

discovery. On October 23 and 26, 2009, a hearing was held on the matter in San Juan, 

Puerto Rico. At the request of Respondent, the parties submitted post-trial briefs of their 

closing arguments. On January 8, 2010, for reasons we will discuss below, ALJ Benkin 

issued a written decision in the case finding a violation of 14 C.F.R. Section 119.5(g), but 

not Sections 91.13(a), or 91.9(b)(1). The ALJ also reduced the civil penalty to $550. On 

January 9"', 2001, Complainant filed its Notice of Appeal of the ALJ's Initial Decision 

appeal with the FAA Decisionmaker. 

STATEMENT OF THE FACTS 

The preponderance of the reliable and probative evidence and testimony of the 

witness at the hearing revealed the following facts. In August of 2005, Respondent's 

' a. Section 91.13(a) in that no person may operate an aircraft in a careless or 

reckless manner so as to endanger the Ufe or property of another. 

b. Section 119.5(g) in that no person may operate as a direct air carrier or as 

a commercial operator without, or in violation of, an appropriate certificate and 

appropriate operations specifications. 

c. Section 91.9(b)(1) in that no person may operate a U.S.-registered civil 

aircraft for which an Airplane or Rotorcraft FUght Manual is required by Sec. 21.5 of this 

chapter unless there is available in the aircraft a current, approved Airplane or Rotorcraft 

FUght Manual or the manual provided for in Sec. 121.141(b). 
aircraft, N906GD, was "converted for ambulance role by the installation of a single 

stretcher...". Ex. 38. After that. Respondent began being paid $7600 per month to be 

available on-demand to transport patients fi-om Culebra to the main island of Puerto Rico. 

Transcript ("Tr"), p. 440, 441. 

On June 8, 2008, Ms. Joan Blizzard Todd came to the Culebra Health Center with 

a health condition. Ex. 21. Culebra is an island off the east coast of Puerto Rico. Ibid. 

Dr. Marangely Rodriguez is an emergency room physician in the Center of Diagnosis and 

treatment at Culebra Health Center ("CHC"). Tr., p. 266. According to her testimony, 

Ms. Todd, a patient the doctor knew, was between 60 and 70 years old. Tr., p. 270. She 

came to CHC complaining of pain on one of her hips. Ibid. She was therefore referred to 

Dr. Rodriguez for diagnosis. Ibid. Ms. Todd "could not stand up by herself. Tr., p. 270-

271. Ms. Todd was put on a stretcher and taken to the emergency room. Dr. Rodriguez 

asked Ms. Todd to move to a wheelchair to see how bad the pain was. Tr., p. 270. Ms. 

Todd told Dr. Rodriguez that she could not do that. Ibid. Based on that medical 

observation. Dr. Rodriguez decided to send her to the main island for an X-Ray in the 

same stretcher in which she came to the emergency room. Tr. p. 271. Dr. Rodriguez later 

confirmed that Ms. Todd had a fi^actured femur, that she was transferred to another 

hospital, and that she was given surgery for the fi-acture. Tr. p. 272. Ms. Todd's fi-acture 

was a result of a fall in her apartment. Tr., p. 273. Dr. Rodriguez testified that when Ms. 

Todd came to the emergency room on Culebra, she was accompanied by a fiiend. Tr., p. 

273). 

Dr. Rodriguez testified that she called Respondent in Culebra to check the 

availability of flights. Tr., p. 273-274. She tried to synchronize the flight with the arrival 
of the terrestrial ambulance. Tr., p. 274. Dr. Rodriguez gave Respondent "the name of 

the doctor and the institution where the patient is going". Ibid. She referred Ms. Todd to 

UPR, Carolina Hospital because Culebra didn't have an X-Ray. Ibid. Ms. Todd left 

CHC in an ambulance headed to Culebra airport. Tr., p. 276. Dr. Rodriguez' specific 

testimony was: 

".. .1 call... to the counter of Flamenco Air in Culebra, to see about the 

availability of flights at that moment. After that, I synchronize the hour in which the air 

(sic) is going to come here, to the main island, together with the terrestrial ambulance, the 

ambulances on the road here. 

And I try to quantify (phonetic) both to be at the same hour. And, first of all 

that, the patient had to be accepted in an institution here. 

So I had the name of the doctor and the institution where the patient is going. 

And, with that information, I call the ambulance and tell them to come here." Tr., p. 273-

74. 

Ms. Aida Maldonado, the Chief Administrator for CHC, testified that Ms. Todd 

came to CHC twice on June 8. Tr., p. 453. The first time she told the doctors, "I am 

shaking, and I need assistance". CHC sent her back home. Tr., p. 454. Maldonado 

testified that Todd also had "schizophrenia". Maldonado stated in a letter provided to the 

FAA, that patients in "critical condition" need to be transported by the Coast Guard or 

Aeromed, which have the capabiHties of emergency medical services. Ex. 21. When 

asked to define "critical condition", Maldonado testified that patients with "a broken 

bone" are included in the definition of critical condition. Tr., p. 458. 

When Respondent's aircraft arrived on the main island, FAA Inspector Eugene 

Jester was there performing surveillance with agents firom several other Federal agencies. 

Tr., p. 41. What drew his attention to Respondent's aircraft was that an ambulance pulled 

up to the aircraft with its ambulance lights on. Ibid. Jester observed the aircraft being 

unloaded and took pictures. Tr., p. 42-43; Ex. 3A and 3B. The photos show Ms. Todd 

being attended to by as many as eight people including the pilot and ambulance 
personnel. Inspector Jester asked the pilot for Respondent's Load Manifest, his flight 

manual, and the operations manual. Tr., p. 42. The weight and balance document for 

N906GD for the subject flight fi-om Culebra showed that there were people in Row 1 of 

the aircraft (estimated as weighing 250 pounds), a person on the stretcher (estimated at 

130 pounds), and a person in Row 5 of the aircraft (estimated at 140 pounds). Ex. 6. 

Respondent's witnesses indicated that the aircraft was carrying four people - two in Row 

1 (the pilot and a passenger named Robert Emeric), Ms. Todd, and a fourth unidentified 

person. Tr., p. 427-28; 328-329. Inspector Jester also stated that he saw about 100 

people getting off about 30 aircraft that day, but he thinks he saw another female 

passenger exit the aircraft. Tr., p. 91, 77. The paramedics transferred the patient from 

the stretcher to a wheeled gumey, put her in an ambulance and drove away. Tr., p. 43,91. 

Because the passenger seats have to be removed to put the stretcher in, the only other 

available seat in the aircraft was the attendant seat next to the stretcher, or, in the next 

row behind the stretcher (Row 5). 

The flight manual Respondent gave to Inspector Jester at the airport was Flight 

Manual FM/7. Ex. 12. The current flight manual applicable to N906GD was Flight 

Manual FM/20. Ex. 14, 15, 36 (under Equipment, paragraph 4(i)). According to the 

Type Certificate Data Sheet applicable to N906GD, FM/20 has been the current flight 

manual for the BN-2A-26 aircraft since June 1, 1976. Exhibit 36. Respondent's 

witnesses admitted FM/20 was the current flight manual. Tr., p. 353, 418, 429. 

Inspector Jester's first-hand observation was that the person on the stretcher was 

removed with her head facing the fi"ont of the aircraft. Tr., p. 53; Exhibits 3A and 3B. 

Inspector Joel Rodas later determined that based on Jester's observations and the photos 
he took, the above-mentioned stretcher was installed backwards on N906GD (per BrittenNorman Manual Supplement #16 to Chapter 2.4). Ex. 5. This document (Ex. 5) is also 

described specifically in the Major Repair and Alteration Form (Form 337) within the 

Blue Ribbon Package on aircraft N90GD. Ex. 38. Hearing Exhibit 5, figures 1-3, show 

that the patient's headrest on the stretcher must face the rear (cargo) section of the 

aircraft. The Form 337 states the stretcher must be "installed with the headrest looking 

after the baggage stowage area..." Ex. 38. Exhibit 3B (specifically, photograph 4) shows 

Ms. Todd being removed from the aircraft facing the fi-ont of the aircraft. The diagrams 

in Exhibit 5 don't show enough room to turn around the stretcher inside the aircraft. 

Respondent presented no credible testimony or evidence contradicting the inspector's 

testimony that the stretcher was installed backwards inside the aircraft before being 

unloaded. 

Inspector Jester inspected the stretcher taken out of the aircraft, found that it had 

no TSO (Technical Standard Order) tags on the stretcher. Tr., p. 54, 56-57; Ex. 6, 15, and 

16. He found that there were four seats belts on the stretcher instead of two. Ex. 3B, 

photos 5 and 6. The four-belt seat belts were horizontally installed instead of crisscrossed as the Britten-Norman documents require. Ex. 6,15, and 16; Ex. 3B, photos 5 

and 6. When inspector Joel Rodas continued the investigation, he verified this fact with 

the manufacturer, Britten-Norman, who, after being shown photos of Respondent's 

installation, unequivocally verified that a four-belt, non-TSO system of belts, such as the 

ones used by Respondent were not cleared for use. Ex. 15 and 16. 
ALJ INITIAL DECISION 

The ALJ's Initial Decision stated the following findings: 

I. Complainant Has Not Sustained Its Burden Of Proving that Respondent 

Performed an Illegal Air ambulance Service. 

n. The Charge of Operating an Aircraft In a Careless or Reckless Manner So 

As to Endanger Life or Property was Unproven 

III. Respondent is Liable for Not Carrying a Current FAA-Approved Flight 

Manual 

IV. A Civil Penalty of $550 is Appropriate. 

SUMMARY OF ARGUMENT 

I. THE ALJ'S INITIAL DECISION CONTAINS MATERIAL FACTUAL 

ERRORS THAT ARE NOT SUPPORTED BY THE PREPONDERANCE 

OF RELIABLE. PROBATIVE, AND SUBSTANTIAL EVIDENCE 

n. THE CONCLUSIONS OF LAW IN THE ALJ'S INITLy;. DECISION 

WERE NOT MADE IN ACCORDANCE WITH APPLICABLE LAW. 

PRECEDENT. AND PUBLIC POLICY 

ARGUMENT 

I. THE ALJ'S INITIAL DECISION CONTAINS MATERIAL FACTUAL 

ERRORS THAT ARE NOT SUPPORTED BY THE PREPONDERANCE 

OF RELIABLE. PROBATIVE. AND SUBSTANTIAL EVIDENCE 

[For the purpose of analysis, Complainant will describe the ALJ's material factual 

errors chronologically as they appear in the initial decision. Complainant will illustrate 

the materiality of the errors as it analyzes them. ] 
A. There Were Factual Errors and Omissions in the ALJ's Analysis of the Air 

Ambulance Issue. 

In his analysis of the air ambulance issue, the ALJ described the person on the 

stretcher captured in the photos in evidence as a "recumbent woman", implying that the 

patient was merely lying down. Initial Decision ("ID") at 2. In doing so, the ALJ did not 

consider the evidence of the condition of the patient. The testimony of the emergency 

room physician, Dr. Rodriguez, was that the patient, Ms. Todd, "could not stand up by 

herself. Tr., p. 270-271, Ms. Todd was put on a stretcher and taken to the emergency 

room. Dr. Rodriguez asked Ms. Todd to move to a wheelchair to see how bad the pain 

was. Tr., p. 270. Ms. Todd told Dr. Rodriguez that she could not do that. Ibid. Based on 

that medical observation. Dr. Rodriguez decided to send her to the main island for an XRay in the same stretcher in which she came to the emergency room. Tr. p. 271. Dr. 

Rodriguez later verified that Ms. Todd had di fractured femur, that she was transferred to 

another hospital, and that she was given surgery for the fi-acture. Tr. p. 272. The ALJ 

erred by describing the patient's illness as a "fi-actured tibia". ID at 4. Objectively, a 

broken femur is a more threatening condition for an elderly person than a broken tibia. 

Ms. Todd also had osteoporosis. Tr. p. 276. Dr. Rodriguez gave Respondent "the name 

of the doctor and the institution where the patient [was] going". Tr., p. 274. Ms. Todd 

left CHC in an ambulance headed to Culebra airport. Tr., p. 276. 

When the patient arrived on the main island, an ambulance pulled up to the 

aircraft with its ambulance lights on. Tr., p. 42-43. Inspector Jester observed the aircraft 

being unloaded and took pictures. Tr., p. 42-43; Ex. 3A and 3B. The photos show Ms. 

Todd being attended to by as many as eight people including the pilot and ambulance 
10 

personnel. The ALJ also ignored the evidence that there was another person on the 

aircraft seated in the row behind or next to the passenger. The weight and balance 

document for N906GD for the subject flight fi-om Culebra showed that there were people 

in Row 1 of the aircraft (estimated as weighing 250 pounds), a person on the stretcher 

(estimated at 130 pounds), and a person in Row 5 of the aircraft (estimated at 140 

pounds). Ex. 6. Respondent's witnesses indicated that the aircraft was carrying four 

people - two in Row 1 (the pilot and a passenger named Robert Emeric), Ms. Todd, and a 

fourth unidentified person. Tr., p. 427-28; 328-329. Inspector Jester also stated that he 

thought he saw a female passenger, other than the patient, exit the aircraft. Tr., p. 91, 77. 

These facts prove that the patient was seriously injured and unable to move on her 

own. They do not support the ALJ's assertion that the patient was merely "recumbent". 

B. There Were Factual Errors and Omissions in the ALJ's Analysis of the 

"Careless or Reckless" Allegation 

The ALJ materially erred by stating, "the complaint alleged that the stretcher was 

installed with only two safety belts, whereas four safety belts were required", and that 

Complainant alleged the stretcher installed in Complainant's aircraft had "an insufficient 

number of safety belts". This was not the allegation in the Complaint. The allegation in 

the Complaint was: 

The above-mentioned stretcher had an improper number of safety belts (four) and 

therefore did not meet the standards of the Technical Standard Order (TSO-C22f). 

Britten-Norman Maintenance Manual, Supplement 16 to Chapter 2.4. 

The ALJ also did not mention the evidence in the record supplied by the 

manufacturer after inspector Rodas showed the manufacturer a photo of 

Respondent's 4-belt seat belt installation. Ex. 15. In this evidence, the 
11 

manufacturer stated that having four non-TSO horizontal belts instead of two 

crisscrossed belts did not meet the requirements of the TSO. Ibid. 

("Unfortunately, we do not have a modification for four belts directly traversing 

the body, therefore we do not have clearance for a four-belt non-TSO system, and 

we have to advise you that they are currently imacceptable.") Inspector Jester 

also testified that the seat belts had no TSO tags on them at all to identify their 

compliance with any appHcable TSO. Tr., p. 54-59. 

The ALJ again materially erred by ignoring Inspector Jester's testimony 

that he actually saw the stretcher being removed fi-om the aircraft headfirst. Tr., p. 

53. None of Respondent's witnesses actually testified that the stretcher was not 

installed backwards inside the aircraft. They simply testified that it didn't matter. 

Tr.,p. 412. 

In its Brief of Closing Argument, Complainant described the patient on 

Respondent's aircraft as "an immobilized allegedly schizophrenic human 

passenger with a medical condition". The ALJ materially erred by describing this 

description as "outrageous" when it is completely supported by the record. 

Respondent's own witnesses testified to these facts. Robert Emeric testified that 

the patient unbelted herself fi-om the stretcher after the flight which she could not 

have done if she were not belted to the stretcher during the flight. Tr. p. 325. Ms. 

Aida Maldonado, the Chief Administrator for CHC testified that the patient, Mrs. 

Todd was schizophrenic and that she had been treated many times at CHC for the 

condition. Tr. p. 455-56. Since the patient had a broken femur, she had been 

admitted to an emergency room in Culebra and a hospital on the main island, she 
12 

clearly had a medical condition. Respondent's witness, Francisco Torres, also 

testified that Respondent doesn 't ask any questions about the patients it transports 

in its aircraft. Tr., p. 424-434. Emeric testified that no one tended to the patient 

during the flight. Tr., p. 316. Therefore, the record supports everything in the 

Complainant's description of the operation. The ALJ materially erred by stating 

there were no facts to support the Complainant's statement. 

C. There Were Factual Errors and Omissions in the AU's Civil Penalty 

Analysis. 

The ALJ erred when he stated, "there was no evidence placed in the record 

bearing on the size of the Respondent, either in terms of its gross annual revenues 

or the number of aircraft in its inventory or the number of employees on its staff. 

Respondent's Op Specs were one of Complainant's primary exhibits. Ex. 4. 

According to Respondent's Op Specs, it has at least 8 aircraft on its certificate. 

Ex. 4, paragraph D485-1, Table 1. The Op Specs also Usted three Part 135 

management employees. Ex. 4, p. A006-1. Also in evidence were pertinent 

sections of FAA Order 2150.3B including the FAA's sanction guidance and 

Respondent's Air Carrier Certificate. Ex. 18 and 3. Therefore, the evidence 

supported the categorizing of Respondent as a small business in Group m, and 

prescribes a minimum civil penalty of at least $825 for each regulatory violation. 

Ex. 18, p. B-3, B-4. The ALJ materially erred by failing to acknowledge the 

existence of these exhibits, especially after being reminded of their relevance to 

the sanction in Complainant's written closing argument. 
13 

The judge also materially erred by failing to consider Respondent's 

violation history. Inspector Rodas testified that Respondent paid a $6500 civil 

penalty recently in 2005 for violation of the FARs. Tr., p. 132-133, 240-243. 

Contrary to FAA Order 2150.3B. Respondent's violation history was not part of 

the ALJ's analysis at all. 

n. THE CONCLUSIONS OF LAW IN THE ALJ'S INITIAL DECISION 

WERE NOT MADE IN ACCORDANCE WITH APPLICABLE LAW. 

PRECEDENT. AND PUBLIC POLICY 

A. The ALJ's Analysis of Respondent's Air Ambulance Operations Is Not In 

Accord With Public Policy. 

The ALJ's first finding was that Complainant did not prove Respondent 

performed an illegal air ambulance operation. Complainant alleged a violation of 14 

C.F.R. § 119.5(g) which reads as follows: 

"No person may operate as a direct air carrier or as a commercial operator without, or in 

violation of, an appropriate certificate and appropriate operations specifications. No 

person may operate as a direct air carrier or as a commercial operator in violation of any 

deviation or exemption authority, if issued to that person or that person's representative." 

The cited regulation is intended to proscribe all operations conducted in violation of the 

appropriate Operations Specifications. The Administrator, through the FAA's flight 

standards division issues Operations Specifications, or "Op Specs", to air carriers who 

have been authorized to hold air carrier certificates. Op Specs contain, "the 

authorizations, limitations, and certain procedures under which each kind of operation, if 

applicable, is to be conducted". 14 C.F.R. §119.7(a) (1). 

By citing § 119.5(g), Complainant, the FAA, alleged that Respondent was 

operating in violation of its Op Specs, not that Respondent actually was a properly 
14 

operating an air ambulance. The Op Specs prevent Respondent fi-om the conduct 

of any air ambulance operations under 14 C.F.R. Part 135. 

Under the ALJ's analysis, the only way an aircraft can be an "air 

ambulance aircraft" is by having every piece of equipment an air ambulance is 

required to have. And the only thing that would make an operation an "air 

ambulance operation" would be to have and a nurse attending to the passenger on 

the flight. This is not the intent of the Op Specs restriction against operating as an 

air ambulance. The practical definition of "air ambulance" does not comply with 

the ALJ's limited vision. The doctor in this matter decided that the patient 

required more medical attention than she could provide in her emergency room. 

The patient was transported via regular, fiilly equipped ground ambulances to and 

firom Respondent's aircraft. Therefore, there was never any time the patient did 

not need the same medical attention that the ground two ambulances could 

provide. The doctor is not required to know what equipment the air carrier has on 

board. But the air carrier should. 

A stretcher is one of the primary pieces of medical equipment necessary 

for proper air ambulance operations. FAA Order 8900.1, Change 22, Vol. 4, 

Chapter 5, paragraph 4-918 (B). The stretcher in this case was primarily used for 

the patient's safety during the flight, not for her comfort. Obviously, the doctor 

did not want the patient, whom she suspected to have a broken bone, to fiirther 

injure herself by falling out of the stretcher during ground or air transportation. 

To avoid liability, by having the pilot or a passenger considered to be a nurse or 

attendant. Respondent's witnesses testified that no one said a word or tended to 
15 

the patient during the flight. Ironically, Respondent's very lack of care of the 

patient is what the ALJ used to find no violation of the regulation. This kind of 

operation is not safe for patients in the condition of Mrs. Todd, nor is it safe or 

advisable for improperly equipped air carriers to carry patients in such a 

condition.^ The regulation is intended to prohibit this kind of operation without 

the FAA having oversight through the Op Specs issued to the air carrier. 

In effect. Respondent used its aircraft as an air ambulance. In August of 

2005, Respondent's aircraft, N906GD, was "converted for ambulance role by 

the installation of a single stretcher...". Ex. 38. Sometime after that. Respondent 

began being paid $7600 a month to be available on-demand to transport patients 

firom Culebra to the main island of Puerto Rico. Tr., p.440, 441. The 

Administrator's interpretation of what constitutes "air ambulance operations" is 

clarified in FAA Order 8900.1, Change 22, Chapter 5 ("Air Ambulance 

Operations"). Ex. 22. A fiilly-equipped air ambulance needs to have "medical 

oxygen, suction, and a stretcher, isolette [for infants], or other approved patient 

restraint/containment device". Ex. 22, paragraph 4-917(B). This does not mean 

however, that that a aircraft operated with an infant in an isolette is not an air 

ambulance. It simply means it is an air ambulance flight that is being operated 

without all the proper medical equipment. That is the case here. Further, the order 

states,".. .a scheduled air carrier who transports a person or persons requiring 

medical persoimel and/or equipment on an imscheduled flight (charter) is 

engaged in air ambulance operations." Ex. 22 (at paragraph 4-921 (A)(1)). 

^ Respondent did follow its own Operations Manual, which states, "only the person who needs the stretcher 

and/or relatives of him will be allowed on this flight." Ex. 28. Emeric and Torres testified that Emeric did 

not know the patient and was not related to her. Tr., p. 323.427. 
16 

Finally, the order states that, "Operators holding part 135 Op Specs without 

paragraphs A021 or A024 may transport medical personnel as passengers who are 

accompanying a sick or injured person, but must meet the following 

requirements:.. .(2) Any in-flight patient care equipment and medical personnel 

that accompany the passenger must be provided solely for the patient's 

comfort. Ex. 22, paragraph 4-921(C)(2). 

The Administrator has clearly proven, and public policy dictates that the medical 

operation conducted by Respondent should not be conducted with out proper Op Specs 

issued by the Administrator. 

B. The ALJ's Analysis Of FAR 91.13 Was Contrary To Applicable Law, 

Precedent And Public Policy. 

An "independent" violation of §91.3(a) is proven by a showing of actual 

or potential endangerment. Administrator v. Seyb, NTSB Order No. EA-5024 at 2, 

Administrator v. Nix, NTSB Order No. EA-5000 (2002) at 3, Administrator v. 

Pierce, NTSB Order No. EA-4965 (2002) at n. 2. Complainant thoroughly 

explained the potential medical dangers of transportation of an elderly patient 

with a broken femur, osteoporosis, and unapproved seat belts in its Brief of 

Closing Argument. The facts show that, at the very least, potential dangers to an 

elderly passenger in such a condition existed. Potential danger exists for patients 

flown without approved seat belts as well. Seat belts on aircraft exist only for the 

purpose of preventing injuries to passengers during transportation. A Technical 

Standard Order is a minimum performance standard issued by the Administrator 

for specified articles used on a civil aircraft. See, Legal Interpretation, 2009 WL 
17 

2421799, July 31, 2009. The apphcable air carrier operating rules prohibit the 

operation of an airplane unless each person has a safety belt properly secured 

about him or her at appropriate times. 14 C.F.R. § 135.128(a). The airworthiness 

standards for transport category airplanes also require that each seat and seat belt 

"must be designed so that a person making proper use of [them] will not suffer 

serious injury in an emergency landing as a result of.. .intertia forces". See, 25 

C.F.R. § 785(b). 

Shoulder seat belts were added to cars to increase the safety of the seat 

belt system. It stands to reason that two seat belts criss-crossing the upper torso 

of a body on a stretcher is more stable that a four-belt system of horizontal belts. 

This was certainly the position of the manufacturer who did not approve the fourbelt system Respondent used. Clearly, the air transportation of the elderly patient 

with a broken femur and unapproved belts was not safe. 

Despite the actual dangers described above, it is not necessary for the 

Complainant to establish actual danger or a flight suddenly in peril in order to 

prevail in proving that a respondent has operated an aircraft in a careless or 

reckless manner. Osmus, Acting Administrator v. Martz, NTSB Order No. EA5447 (2008); Administrator v. Lorenz, NTSB Order No. EA-5205, at 2-3 (2006); 

Roach V. Nat'l Transp. Safety Bd, 804 F.2d 1147, 1157 (10* Cir., 1986) (finding 

that it is not necessary to prove actual endangerment in order to sustain a 

carelessness charge); Haines v. Dept. of Transp., 449 F.2d 1073, 1076, n. 10 

(D.C. Cir. 1971): Administrator v. Szabo, NTSB Order No. EA-4265 at 4, (1994) 

(stating that "innumerable Board cases make clear that no more than potential 
18 

endangerment is required" in order to find a violation of §91.13). Therefore, 

based on the proven facts, the Respondent's operation was clearly careless. Dr. 

Rodriguez gave Respondent "the name of the doctor and the institution where the 

patient [was] going". Tr., p. 274. Respondent knew the patient was being 

transported for fiirther medical evaluation. Tr. 440-41. The patient needed an 

ambulance to travel to and fi:om Respondent's aircraft. When this information 

was given to them, along with immobiUzed elderly patient. Respondent chose to 

operate the aircraft without any care about whether they were properly equipped 

to perform loading, care during flight, and unloading of the patient/passenger. If 

the doctor didn't know better, Respondent, the air carrier, should have. If the 

patient went into shock or cardiac arrest, or if she was improperly loaded, secured, 

or unloaded, there would have been nothing Respondent could do about it because 

it had none of the basic equipment or persoimel necessary to take of care of such a 

patient. According to the testimony of it witnesses. Respondent's employees had 

no medical training and paid no special attention whatsoever to the patient on the 

stretcher. These actions do not demonstrate the level of care required of an ondemand, passenger air carrier. 

C. The ALJ Improperly Analyzed The Sanction Issue. 

Perhaps the most egregious error in this case involved the ALJ's 

calculation of the civil penalty. As described above in the material errors of fact, 

the ALJ failed to recognize the evidence in the record that supported the 

Complainant's recommended sanction. Additionally, none of the reasons given 
19 

for reducing the civil penalty to a minimum are supported by the record, agency 

poUcy, or case law. Pursuant to 49 C.F.R. §46301(a)(5)(a) the maximum sanction 

for each of the pleaded violations is $11,000. Therefore the maximum sanction in 

this matter could have been $33,000. That is where the sanction analysis should 

have begun. 

As stated above, the Op Specs, which are in evidence, provided all the 

evidence the ALJ found to be missing including the size of Respondent, number 

of aircraft and number of pilots Respondent had. Additionally, the ALJ's reasons 

for reducing the CP are insufficient to reduce the CP. Intent is not an element of 

the cited violations. The fact that the violation was not intentional is not 

mitigating. The regulation requires the flight manual to be current not just 

"serviceable". The evidence may not show fiill extent of the potential safety of 

flight issues presented by Respondent's use of the wrong manual. However, 

Respondent's expert witness did testify that the maximum weight limitations in 

the manuals were different by at least one hundred pounds. That amount is not 

insignificant. 

The ALJ completely ignored Respondent's violation history. That omission is 

contrary to the sanction guidance. A violation history can justify imposing a sanction at 

the higher end of the normal range or a sanction beyond the normal range. FAA Order 

2150.3B, p. 7-7. The Administrator has both the authority and duty to impose the 

agency's policy on appeal. In the Matter of Warbelow 's Air Ventures, FAA Order No. 

2000-3, Docket No. CP97AL0012 (2000). The ALJ's penalty of $550 is below the 

minimum amount in the sanction guidance for one violation ($850). The proposed 
20 

penalty of $11,000 was nowhere near the statutory maximum penalty of $33,000 

Complainant could have proposed for each of the regulations cited in the complaint. 

Finally, Complainant is not required to present evidence of Respondent's ability 

to pay the proposed civil penalty. Folsom 's Air Service, Inc., FAA Order No. 2008-11 

(2008); In the Matter of Conquest Helicopters, FAA Order No. 1994-20 at 3 (1994). 

Respondent's ability to pay the proposed civil is in the nature of an affirmative defense. 

Toyota Motor Sales, USA Inc., FAA Order No. 1994-28 at 10 (1994). For the above 

reasons, the proposed penalty of $11,000 should be reinstated. 

CONCLUSION 

The preponderance of reliable, probative, and substantial evidence in the record 

proved the Complainant's allegations discussed above and supported the Complainant's 

proposed civil penalty. 

WHEREFORE, for the reasons set forth above, Complainant requests the FAA 

Decisionmaker issue an Order reversing the decision of the ALJ and assess a penalty of 

$11,000 against Respondent. 

Respectfully submitted this -^Z)/ Ao/f? d da; y of March, 2010 

GERALD A. ELLIS 

Attorney 

Office of the Regional Counsel 
21 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing COMPLAINANT'S APPEAL BRIEF has been sent by 

Federal Express to: 

Attention: Hearing Docket Clerk, 

AGC 430, Wilbur Wright Building - Suite 2W1000 

Federal Aviation Administration 

800 Independence Avenue 

Washington, DC 20591 

FAX: 202-493-2251 

Gabriel I. Penagaricano, Esq. 

PMB239 

405 Ave., Esmeralda, Ste. 102 

Guaynabo, Puerto Rico 00969 

TEL: 787-287-9024 

FAX: (787) 731-0679 

OMJL q^^g»^ ^ 

WAR 0 2 2010 

Dated ^