Ventura Air Services, Inc., 

Petitioner, 

v. 

FEDERAL AVIATION 

ADMINISTRATION, 

Respondent. 

NOV 115 2D1Z 

____ CLERK 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

) 

Petition for Review 12 -14 51 

PETITION FOR REVIEW 

Ventura Air Services, Inc., Petitioner herein, by and through undersigned counsel, hereby 

files a petition to this Court for review of a final agency Order rendered by the Administrator of 

the Federal Aviation Administration (hereinafter the "FAA") in The Matter of Ventura Air 

hereto). 

Ventura Air Services, Inc. files this appeal pursuant to 49 U.S.C. § 46110(a). Petitioner 

is the affected party and therefore prays that this Court wilJ review and reverse the FAA 

Administrator's Decision and Order (FAA Order No. 2012-12, served on November l, 2012) 

(Exhibit 1, attached hereto). 
.:i USCA Case #12-1451 Documenl #1405654 Filed: 11/16/2012 Page 2 of 33 

DATED: November 16,2012 

------------------

Respectfully submitted, 

Original Signed By: 

Gregory S. W;nton 

GREGORY S. WINTON, ESQ. 

The Aviation Law Firm 

One Research Court, Suite 450 

Rockville, MD 20850 

Tel: 301 294 8550 

Fax: 301 294 2525 

Counsel for Petitioner 

-------------------- -- ----------------------

2 
·i USCA Case #12-1451 Document #1405654 Filed: 11/16/2012 Page 3 of 33 

EXHIBIT 1 
~8/11/2008 20:35 3012942525 GREGORY S WINTON,ESQ 

' USCA Case #12-1451 Document #1405654 Filed: 1111612012 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTMTlON 

WASIDNGTON, :OC 

In the Matter of: VENTURA AIR SERVICES, INC. 

FAA Order No. 2012-12 

Docket No. CP08EA0008 

FDMS No, FAA-2008-05051 

Served: November 1,2012 

DECISION AND O!IDER2 

PAGE 01/29 

Page 4 of 33 

Administrative Law Judge ("AW") Isaac D. Benkin issued a written initial decision 

finding that Ventura Air Services ("Ventura") violated 14 C.F.R. §§ 135.293(a)(l) and (4)-(8),' 

by usil)g " pilot on three revenue flights when the pilot hi'lcl not taken a written or oral test in the 

I 

subjects specified in those provisions In a timely fashion. The ALJ assessed a nominal $1.00 

civil penalty! 

the FAA and Ventura filed cross-appeals, On appeal, Ventura argued that(!) the ALJ's 

fwdings of fact we:re not supported by a preponderance of the evidence and each co!lclusion of 

------------ ----------------------------------" 

law was not made in accordance with applicable law, precedent and policy, (2) Section 

135.293(a) is void for vagueness, 'Uld (c) the ALJ eiTec! l11 admitting the fAA's rebuttal witness's 

expert testimony. The fAA, on appeal, argued that the ALJ should have found that Ventura also 

1 Generally, materials filed in the FAA Hearing Docket (except for m&terlals filed in security 

cases) are also available for viewing at hrtp:llwww.regulations.gov. 14 C.F.K § !3.210(e)(i). 

2 The Administrator's civil penalty decisions, along with lnde:xes of the decisions, the rules of 

practice, and other informatio~t, are availllble on thelntemot at the following address: 

wwwfaa.govfaboutlojjlce_orglheadquarters_oifices!agclpol_acf!udication!A.GC400!Civil _Penalty/. See 

14 C.P.R.§ 13.210(e)(2). Jn addition, Thomson Reuters/West l'ublishing publishes Federal Aviation 

Deci•ions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRANFAA database). For additionallnfonnation, see the Web site. 

3 See Appendix I for the full telct of Sections 135.293(a)(l) and (4)-(8). 

4 A two-day hearing was held on April 7-8, 2009. 
• 2.9.42525.. GREGORY S WINTON, ESQ e~/ll~~A ~str #123n,l uocument #1405654 Filed: 11116/2012 

PAGE 02/29 

Page 5 of 33 

violated Section 9!.13, and that a $15,000 civil pen<y is consistent with agency policy as 

applied to the facts of this case. 

. ' 

As explained in this decision, Ventura's appeal is denied. This decision holds that the 

preponderance of the evidence supports· the ALJ's decision tliat yentura used a pilot who was 

not cuuent on his Sections 135.293(a)(l) and (4)·(8) ~esting. Further, Ventura's arguments 

regarding the adm.issiou ofthe expert testimony ~fli'AA Inspector Roy Michael Sees and that 

Section 135.293 should be found void for vagueness are rejected. The FAA's cross-11ppeal is 

granted. A $15,000 civil penalty is assessed. 

I. Background 

Pilots who serve as required crewmembers in Part 135 operations a;~:e required under 

14 C.F.R. §§ 135.293(a)(1)·(8)5 to pass initial and recurrent oral or written tests in eight specified 

areas. Sections 135.293(a)(l) and (4)-(8) req11~re ~ral,or written testing of a pilot's non-aircraft· 

specific knowledge, including pertinent regulations, piovisions of the carrier's operations 

specifications and manual, navig>ttion, air traffic control procedures, and meteorology. Sections 

135.293(a)(2)-(3) require written or~;~! te~\ing -~fa pilot's knowledge about the particular type 

of aircraft that the pilot will operate for the air carrier. In addition, under Section 135,293(b), 

pilots are required to take competency tests, commonly referred to as "flight checks" in the 

aircraft or cl!ISS or type of aircr11ft th&t they will fly for the operator.' 

Regarding the timing ofthese oral or written tests and flight checks, Section 135.293 

i 

provides that "[n]o certificate holder may use a pllot, nor may any person serve as a pilot, unless 

since the beginning of the 12111 calendar month before that service, that pilot has passed" a written 

' 

' See Appendix I for the full text of Section .135.2iJ(a). 

'See Appendix II for the full text of Section 135.293(b). 

2 
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Page 6 of 33 

or oral test and a flight check. This requirement must be read in conjunction with Section 

!35.30l(a), which provides as follows: 

If a crewtnember who is required to take a test or a flight check under this part, completes 

the test or flight check in the calendar 'month before or after the calendar month in which 

it is required, that crewmember is considered tQ have completed the test or check in the 

calendar month in which it is required. 

14 C.P.R.§ 135.301(a). 

For example, under Sections 135.293(a) and l35.30l(a),lf a pilot passed a written or oral 

test on all the areas covered by Section 135.293(a) in February of Year I, the pilot could satisfy 

Section !35.293(a)'s xecurrent oral or written test requirement by completing a !mowledge test 

' ' 

no later than the end of the "grace month," March of Year 2. (See Tr. 39, 42.) In this example, 

February would be the "base month" and, under Section 135.301, if the pilot completed the I 

recurrent !eating during the following January, February, o~ March of Year 2, the testing would 

be considered as accomplished in February of Year 2. (Tr. 42.) This 3-month period, comprised 

of the base month, the month before and the month after the base month ofYear 2, is referred to 

___ _as the "eligi_bi!Lty_periud."- (See Respon.dent' s-Exhi~it_:l-at-HFAA Order-No: 8400;1 0~~603); · -----

Letter by FAA Assistant Chief Counsel Rebecca MacPherson to Gregory Winton, Esq., dated 

., ' 

September 6, 2006, Respondent's Exhibit 7 at 2.) 

FM Inspector Mark Rogers testified at the hearing that it is common for Part 135 

operators to establish separ~te base months for the Sections l35.293(a)(l) and (4)-(8) (non· 

aircraft specific) portions of the oral or written test, the Sections 135.293(a)(2) and (3) (aircraftspecific) portions of the ornl or written test, and the Section 135,293(b) flight check.·. (Tr. 118-

119.) 

' In 2004, Ventura, the holder of anair carrier certificate, hired Nicholas Tarascio to serve 

as second in command of a Lear 25 and Lear 55. (Tr. 176-177.) Before that, Tarascio worked · 

3 
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Page 7 of 33 

fo~ Air East Management, another company operating under l'art 13 5, as second in cotnm&nd 

:flying the same aircraft. ., 

Complainant's Exhibit 1, Tarascio's airman competency check records, FAA Form 

8410-3, showed that after Tarascio was hired l!y V eritura, he took oral or written tests and flight 

checks under Section 135.293 as summarized in the following chart: 

DATE SUBJECT- AIRCRAFT INSPll:CTORI 

'§ l35.293 CHECK AIRMAN 

12/08/2004 (a)(!) & (4)-(8) Not Applicable Inspector Mauro 

02/03/2005 (a) & (b) Lear25D Inspector Fraher 

' : 

03/15/2005 (a)(2)-(3) & (b) Le'!l' 35A Check Airman Boyd 

atSIMCOM 

03/16/2005 Lear 25 difference$' (illegible signatwe) 

atSIMCOM 

04/18/2005 Lear 55 differences Check Airman 

''· Santiago at 

SIMCOM 

05/08/2006 (a)(l) & (4)-(8) Not Applicable Inspector Rogers 

flights un<ler Part 135 on April! and 2, 2006 in a Lear 25 and on Aprill3, 2006, in a Lear 55. 

(Complainant's Exhibits 5 and 6; Tr. 88-90.) The next mollth, in May 2006, Ventura sent 

Tarascio to Inspector Rogers, who was Ventura's principal operations inspector (POI) at the 

I 

time, for the oral or written test rl'qnired under SQQ"tio)is 135.293(a)(l) and (4)-(8), 8 (Tr. 29-30.) 

7 Differences training is defined M "the training required for crewmembers who have qualified 

and served ()ll a particular typ,e aircraft, when the Administrator finds differences training is necessary 

be!ore a crewmember serves in the same papacity on~ particular variation of that aircraft." 14 C.F.R. 

§ 135.32l(a)(4). Tarascio testified that Ventura was going to operate a Le~~r 25, not a Lear 35, aircraft. 

(Tr. 190.) Hence, after his Lear 35 simulator recurrent training and tesdng, he took differences training in 

the Lear 25 and later the Lear 55. 

'Because Rogers was not rated in the Lear, he could not give the Sections 135.293(a)(2) and (3) 

portions of tho oral or written test. (Tr. 31-32, 37,38.) 

4 
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:Rogers testified that before administering the test, he reviewed Tarasclo's training 

records and did not notice anything "abnorma\,"9 (Tr.i 38.) However, he noticed "an area of 

discontinuity" in the test records because he could find no records to show that Tar&scio had 

completed aQ oral or writteQ test under Sections 135,293(a)(l) aQd (4)-(8) since he was tested by 

Inspector Susan Fraher in February zqos, approximately IS months earlier. (Tr. 29, 38-39.) 

Rogers testified that he asked Ventura's director of operations, Gould Ryder, whether there were 

any records to show that Tara.<Jcio had completed the non-~rcraft specific knowledge, test by the 

end of March 2006, but Ryder never provided him with any itdditional documentation on this .,, 

issue, (Tr. 44.) After giving the test to Tara~cio on May 8, 2006, Rogers wrote in the "Remarks" 

section of the l'AA Form 8400-3, that a "new base month [is] established for 135.293(a)(I), (4·8) 

only," (Complainant's Exhibit 1 page 6; Tr. 64.) 

The FAA argued that Tarascio was overdue for the non-aircraft specific portions of the 

I 

oral or written test required under Sections 135.293(a)(l) and (4)-(8) when he tlew as second in 

command on April I, 2, and 13, 2006. Rogers testified at the hearing that because Tarascio 

completed the non-aircra:l1: specific test With Inspector Fraher on February 3, 2005, he was 

! I\ '/ 

required to complete those portions of the test again no later than the last day of March 2006 

under Sections 135.293(a)(l) and (4)·(8}and 135.301. (Tr. 39, 43.) However, Rogers testified, 

he found no evidence in the o:fficial test records that 'l'arascio had completed a recurrent test as 

required by Sections 135.293(a)(l) m~d (4}-(8) prior to the three flights in April2006. (Tr. 39, 

44, 47, 75, 113.) 

9 Rogers testified, based upon his review of the records, that Tarascio completed his initial 

training and Section 135.293(a)(l)-(8) test in February 200$, and took recurronl training and a Sections 

135.293(aX2)-(3) test pertaining to the Lear Jn the simulator at SIMCOM in March 2005. (Tr. 154-155.) 

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Ventu:ra argued that Tarascio was current on his Sections 135.293(a)(l) and (4H8) 

testl11g when he served on the revenue flights in April 2006 because, in Ventu:ra' s view, 

Tarascio's testing date should have been deemed to be in March, not February. Ventura's 

argument was based on its interpretation of guidance in FAA Order No. 8400.10. A review of 

training programs implemented by Parll35 carriers generally and Ventura's training program" 

in particular is necessary to understand Ventura's arguments. 

Crewmember training requirements are set forth in 14 C.F.R. §§ 135.321-135.353. 

Section 135.343 provides that: 

No certificate holder may use a person, nor may any person serve, as a crewrnember in 

operations under this part unless that ~rewmember has completed the appropriate initial 

or recurrent training phase of the training program appropriate to the type of operation in 

which the crewmember is to serve since the beginning o:fthe l21

h calendar month before 

that service. 

Section I 35 .323(b) provides a "grace month" for training, similar to Section 13 5.301 's provision 

regarding oral or written tests and flight checks. 14 C.F.R § 135.323(b). 

' ' ,i ' 

The FAA's rebuttal witness, Inspector Roy Sees, 11 whom the AU found qualified as an 

expert in pilot training'• and testing, (Tr. 398·399), te~tified about training programs. He 

testified that a carrier's pilot training pl'\lgram13 is divided into six categories, including initial 

' new hire and recurrent training. Each category is divided into curriculums for each required 

10 A certificate hoi de; must obtain initial and ·final FAA approval of a training program before 

implemetJtlog it. 14 C.F.R. §* 13S.323(a)(l) and 135.425, FAA Inspector Sees testified that operators' 

training curriculums must be approved by the FAA. (Tr. 448-449.) 

11 Sees is as an instructor at the FAA Academy at the Mike Monroney Aeronautical Center i(t 

Oklahoma City, Oklahoma. (Tr. 388.) Prior to his assignment at the FAA Academy, he served as the 

supervisor of the Scottsdale, Arizona Plight Standards District Office (FSDO). He testified that lie has 

taught all of the FAA Acad~:my courses, but primarily those related to air carrier training progmms, pilot 

testing, proving flights and air carrier certification. (fr. 388-391.) 

13 See Append!» Ill for definitions of the following terms as set forth In FAA Order 8400.10: 

training program, modular training, categories of training, cuiTiculum, cun!oulum segment, training 

module, element, element, and checking and qualification module. 

6 '' ~· 
1 

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Page 10 of 33 

crewmember for a particular type aircraft operated by tbat operator." Currlculums are divided 

" -1 

in.to segments, including basic indoctrination,, aircraft ground, aircraft flight, and qualification 

segments, (Tr. 404.) The qualification segment is the final segment of any curriculum. 

(Tr. 431.) Curxiculum segments are divided into modules, 15 which are composed of elements and 

events." 

Section 8 of Ventura's training manual describes the Qul\lification Segment for Ventura 

pilots. (Respondent's Exhibit 9,) Completion "of all the curriculum segments lis listed for the 

initial new hire curriculum" is a prerequisite for enrolling in the qualification segment. 

(Respondent's Exhibit 9 at l.) The first-module in Ventura's Qualification Segment is entitled 

' "CM-1 Competency Check 135.293," (Respondent'~ Exhibit 9 at 2), which includes the testing 

elements ~d checking eve~t-s of Sections 135.2"93(a) and (b) respectively. (Respondent's 

Exhibit 9 at 2-4,) 

According to Ventura's training manual, Ventura may use a "reduced ixritial new hire 

traixring curriculum" to train flight deck crewmem~ers who have ''properly doCllmented Part 135 ----

employment eXperience and who are current and qualified on the same equipment and duty 

position." (Respondent's Exhibit 2 at 1). The reduced initial new hire curriculum for a pilot 

serving as second in command, according to the manual excerpt iptroduced at the hearing, 

requkes the completion of the following curricul~ ;~gments: Bwic Indoctrination; General 

Emergency; Aircraft GJ:ound; Aircraft Flight; and Qualification. (Respondent's Exhibit 2 at 2.) 

14 "Each certificate holder must prepare and keep cumont a written training program curriculum 

for e..ch type ofaircraft for each crewmember req11ired for that type aircraft." 14 C.P.R.§ J35.327(a). 

Each curriculum must include ground and flight training .. i 

"For example, Sees testified, an oporator'$ ground training cuniculum segment may include 

training module• regarding aircraft electrical and fuel systems. (Tr. 404.) . 

11 Re$pondent's Exhibit 7 at I. 

7 ,, 
' • Z9A2525.. GREGORY S WINTON, ESQ 0F,i/llt:}§@JA e%.~#12?!'lr:n uocurnent #1405654 Filed: 11116/2012 

PAGE 08/29 

Page 11 of 33 

Ventura's training manual also stated that for the reduced initial new hire training curriculum, 

\ 

"Ground and Flight Training shall consist of the Operator Specific modules (l3IO-I through 

Bl0-3) ofth<~ Basic Indoctrination Curriculum and the Recurrent Training Modules of other 

curriculllllJ.S as appropriate .. " . (Respondent's Exhibit 2 at 1, emphasis added.) 

' " Ventw:a's witnesses, Tarasclo and Richard Peck, whom the ALJ found qualified as an 

expert in air carrier operations,!' testified that Ventura hired Tarascio with credit for his past 

training and experience at Air East Management, and .used the reduced initial new hire 

curriculum to train him. (Tr. I 80-181, 288-291.) 

Peck testified that operators usually provide the following in-house training: Section 

135.293(a)(l) and (4)-(8) training, including weight and b~lance, logging duty times, filing flight 

plans, and first aid. He explained that operators usually send their pilots to a Part 142 training 

\ 

center classroom for aircraft-specific Sectiom 135.293'(a)(2) and (3) training. He testified that 

the Part 142 training center classroom has "all kinds of training aids18 and they teach the pilot 

how the hydraulics work, the electrical systems, fhe air conditioning, and so on." (Tr. 27~.) He l ·1 _ --~-------- __ .. 

testified that operators also provide tlight training at the Part 142 training center, some of which 

is taught in a classroom and some of which Is taught in a simulator. 19 (Tr. 275- 276,). 

17 Richard Peck, the safety officer and compliancesp~ialist for Universal Jet Aviation and the 

assistant manager for the Fort Lal!derdale International Airport; testified for Ventura as an expert in air 

carrier operations. (Respondent's Exhibit 8; "J;r. 252, 254-255.) Since 2005, Peck has boon a consultllnt 

for the law firm representing Ventura in this litigation. In 2005, Peck retired from the FAA, after 33 years 

of employment, inclu<!lng serving as the 'i'AA aircr~ft program manager for, Continental Expn>$S from 

1998·2005, 'i' AA PO! for Champlain Enterprises from 1994-1998, and FAA Operations Unit supervisor 

for the Albany, New York FSDO from 1989·1994. (Respondent's Exhibit 8; Tr. 249-250.) Peck's 

resume indicated that sino" 2005, he was also the asslstant,director of operations for Ventura but no 

mention of this position was made ln his teBtimony at the heating. He did not claim to testifY based upon 

personal knowledge of the ev~;:ntll. · 

18 See 14 C.P.R. § 6J,I(b)(7) for the definition of"flight training device." 

19 See !4 C.P.R. § 6l.l(b)(5) for the definition of"flightsimulatot." 

8 
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Page 12 of 33 

Under its operations specific&tions dated March 3, 2005, Ventura was authoriz~d to send 

its jlilots to SlMCOM, a Part 142 tralJJ.ing facility located in Orlando, Florida, for certain training 

and checking in the LR-35 (Lear 35) series approved simulator, as well as for differences 

' ' training for the LR-25 and LR-55 (Lear 25 and 55).~0 '(Complainant's Exhibit 4, Tr. 56, 80-83.) 

' 

In a letter dated Aprill3, 2005, to Ryder; Inspector Mauro, Ven~a's POI at the time, wrote that 

Ventura was authorized to use SIMCOM to. conduct 11lltralning and checking in LR-35 series . approved simulator with differences training for the LR·25 and LR-55, except for Sections 

' 

135.293(a)(l) and (4)-(8) testing. (Complainant's Exhibit 4 at 1.) 

Ventura introduced a portion ofthe Air Carrier Operations Inspector's Handbook, FAA 

Order 8400.10, in effect at the time. Pamgraph 603 oflhis order, provided:" 

A. Training/Checking Month. The training/checking month is that calendar 

month during which a flight crewmember is due to receive recurrent training. , .. 

(1} Designating the Training/Checking Month. When a crewmember completes 

an initial, transition, upgrade, or i-equalification training program within a 3-calendar 

month period, the month in which the qualifio4tion curriculum segment is completed ~~ 

then considered to be that crewmember's training/checl<ing month. If the training has 

----" __ _,b=-c"ompleted-withinthe~~month-periedithe-e:uerator-may-make-a·singl~necurdofthe 

entire cuniculum wlthout noting when individual ev<:mts occwred. Subsequent 

scheduling of recurrent traini.ng may then be bas<)d on the training/checking month ..... 

(Respondent's Exhibit I.) 

Based on this guidance, Peck testified that if a pilot completed the Sections 135 .293(a)( 1) 

and (4)-(8) test on January 20, the Sections 135.293(a)(2) and (3) test on January 25, and the 

20 Ventura's operations specifications (A03J ), dllted lV!ai'Qh 3, 2005, provided that SIMCOlV! was 

an approved training provider for pilot initial, recurrent, transidon, upgrade, requalification and 

differences txllining oo~rses in the LR-25 and LR-55, (Complainant's Exhibit 4 at 6.) Ventura had not 

operated a Lear 25 previously, and therefore, it is likely that It had not had authority to use SMCOlV! for 

Lear 25 training prior to the approval of these operations specificallons. 

21 Peck testified that he compared the pertinent language in the current order, FAA Order No. 

8900.1 with the now superceded FAA Order No. 841)o,J O, .~ncl found that the pertinent lan!l"age is 

practically identical in the two orders. (Th. ;!61.) 

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Page 13 of 33 

Section 135.293(b) flight test on February 4, the pilot's base month for rl:'current testing for the 

entire Section 135.293 test/check would be Februarybec11use the pilot completed the checking 

module in February within a 3-month period. (Tr. 263; see Tr. 277.) 

Tl!l'Mcio testified that he took the oral test and check ride with Inspector Fraher on 

February 3, 2005, after he completed the company-specific basic indoctrination training. (Tr. 

181-182,) At that point, he testined, he had not completed his reduced iuitial new hir~ training 

program because he needed to take simulator training 1"-nd checking at SI:MCOM. (Tr. 188-189.) 

According to Peck, on February 3, 2005, Tarascio was only qualified to take the Sections 

135.293(a)(l) and (4)-(8) portion of the oral or written test because he had not taken the training 

at SIMCOM. Thus, in Peck's view, TIU'ascio was not qualified to take the Sections 

135.293(a)(2) and (3) oral or written test or the Section J35.293(b) flight check that Fraher 

administered to 'I'IIl'ascio on that date. (Tr. 282.) 

' .. i 

According to a SIMCOM certificate introduced b'y the FAA, Tarascio completed a 

' "Specialty Curriculum Part 135 Lear 35 Recurrent Training course with [Lelll']25 differences" at 

SIMCOM in March 2005. (ComplaiuiU'It's Exhibit 3, Tr. 80-84.) Ventura maintains that this 

recurrent training 'cour~e that Tarascio took satisfi'ed a requirement in Ventura's reduced Initial 

new hire traiuing program. (Tr. 226, 245-246.) Consequently, according to Ventura's witnesses, 

TarMcio completed the Section 135.293 checking module of his reduced iuitlal new-hire training 

program in March 2005- not in February 2005. (Tr. 225.) Therefore, Ventura maintains, March 

was TarMcio's bMe month.22 

Tarascio testified that he "was under the impression it [the base month for recurring 

training and checking] was always March based on the traiuing ... in Mlll'ch." (Tr. 197.) He 

22 There was no evldence offered to explain whether th¢ April2005 Lear 55 differences testing 

that Tarascio took at SIMCOM was part of initial or recu!'l'ent \raining. 

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Page 14 of 33 

testified that he did not have different base months for Sections 135.293(a)(l) and (4).(8) testing ' . 

and Sections !35.293(a)(2) and (3) testing, (Tr. 197.) 

Bas.ed upon his review ofTarascio's records, Peck testified that Tarascio completed the 

first phase of his in-bouse ttalning and the first phase of the Section 135.293 checking modt~le on 

February 3, 2005 (Tr, 279-280, 284), and completed the last phase of his training and the Section 

135,293 checking module &t SIMCOM with the flight check on March 16. (Tt. 279, 284,) Peck 

testified that because Tarascio completed the checking module on March !6, 2005, which was 

"within the three-month block," March was the base month for recurrent testing, not February 

[the month of the test and check with Fraher]. (Tr. 284.) "And he is good fox the next twelve 

months which would be Maxch of '06 plu~ a thirty-day grace period." (Tr. 284-285.) 

Consequently, according to Peck, Tarasdo was eligible to fly until the end of April 2006, even 

though he had not completed the Sections 135.293(a)(l) and (4)-(8) test since February 2005. 

(Tr. 285.) Thus, in his opinion, Ventura did not. violate Section 135.293(a) when it used Tarascio 

as second in command in April2006. (Tr. 288.) He opined further that Ventura "operated the 

---------·--------------.-----'' ----·---------- ---- - -- - -------

aircraft to the highest standards and at no time did they [Ventura] risk anybody's life or damage . . 

property." ('l'r. 294-295.) 

Peck testified that a check ride should not be given before a pilot has completed all of his 

training. (Tr. 281.) Rowever, according to Peck and Tarascio, Tarascio took the check with 

Fraher In February 2005, although he bad not completed his tmining, because he had to 

demonstrate to FAA inspectors that he could operate. IJ:!e,, Lear 25 prior to serving as second in 

. ' l . 

command on "proving runs." (Tr. 198-199, 281-282.) Because Ventura had not operated this 

aircraft previously, it had to conduct 20 to 25 hours of flights - "proving runs"" - in that aircraft 

23 Section ll9.33(c) provides in J'll!i thlll "(e]ac~ appliclUJt for a certificate under this pal'! and 

each applk,.nt for operations speclt1cations authorizing a new l<inct of operation that is subject to 

ll 
· 5 30l2S42525 . . GREGORY S WINTON,ESQ B~lltJ~~)l, cls~ #12-14!:11 Document #1405654 Filed 11/16/2012 

.. , 

PAGE 12/29 

Page 15 of 33 

with fAA inspectors on board to demon~trate that it could operate the Lear 25 ~afely. (Tr. 131.) 

Peck testifjed that the FAA would count the time spent on a check dde as part of the 25 hours of 

required proving runs. (Tr. 347.) 

. I ' 

On rebuttal, Sees testified, based upon his. review of the documentary evidence that had 

been introduced at the hearing and that was included in the eti:forcement package, that Tarascio 

served as a pilot on flights !n April2006 when he had not passed a Sections 135.293(a)(l) and 

(4)·(8) knowledge test dwing the previous 13 months [12 months plus the grace month]. He ,. 

explained: 

Mr. Tarascio received a complete 135.293(a) m'd (b) check in february of2005. He 

received a partial checl<; in March of 2005. He did not receive the 293(a)(l) and (4)·(8) 

check at any time after February of2005 until May of2006. 

(Tr. 402·403.) 

Sees testified that the Tarascio's checking records showed that Tarascio completed the 

qualification segment in February 2005, when he succ.essfully completed the Section 135.293(a) 

\ 

test and the S<;>ction 135.293(b) flight check. He testified that Fraher should have checked ----- --- ------ -----_.___ --------------------------

Tarascio's records and should not have given him the Section !35.293(a) test and Section 

135.293(b) flight check unless Tarnscio had completed all of his training. (Tr. 418, 475.) 

Consequently, he assumed that Tarascio had .completed all of his prerequisite training before the 

cheQk ride on February 3, 2005. (Tr. 443, 476-477.) He testified that "there is no mechanism for 

reaching back to training and testing that's already been completed and adding or cherr~·picking 

portions of that into the next month's training that's being conducteif.'' (Tr. 418.) 

§ 121.163 or§ 135.145 of this chapter shall_cond!l~t proving le•ts as authorized by the Administrator 

during the application proc~ss for authority to conduct operations under part 121 or part 135 of this 

chapt~r. 14 C.P.R.§ 119.33(c). 

12 
··I eR/11/2008 20· 35. 3012942525 GREGORY S WINTON, ESQ .~ o::>cA Case #12-14bl Document #1405654 Filed: 11/16/2012 

II. The Initial Decision 

The ALJ' s factual findings included the following: 

I, Tarascio was hired by Ventura in 2004. (Initial Decision at 3.) 

PAGE 13/29 

Page 16 of 33 

2. Tarascio had previous experience as a flight crewmember of a Lear 25. (Initial 

Decision at 3.) 

3. VentU.J:a used its "Reduced lnitial New Hire Training Curriculum to train hJm. (Initial 

Decision at 3 .) 

4. Tarascio took a Section l35.293(a)(l)'dnd 1(4)·(8) test with MaU.J:o in December 2004. 

She did not test hlrn on the aircraft-specific topics covered under Section 

135.293(a)(2) and (3). (Initial Decision at 3.) 

5, Fraher gave Tarascio a Section ~35.293(a) test and Section 135.293(b) check ride in a 

Lear25 on February 3, 2005. Fraher found that "Tarascio possessed the knowledge 

required to pass the test in all respects (at least as a second-in-command.)" (Initial 

Decision at 3 .) 

6. The check ride with Fraher on February 3, 2005 was a "proving flight." (Initial 

Decision at 3.) 

7. Tatascio completed a specilllty curriculum Part 135 Lear 35 recurrent C\l\U'Se and a 

Lear 25 differences co\U'se at SIMCOM in March 2005, While at SIMCOM, Tarasclo 

successfully completed Section 135,293(a)(2) and (3) tests. (Initial Decision at 4.) 

8. Tarscio's next Section l35,293(a) testing was in May 8, 2006, when he passed a 

Section l35.293(a)(l) and (4)-(8) test administered by Rogers. (Initial Decision at 4.) 

9. Tarascio flew as first officer for Ventura on flights on April I, 2, and 13, 2006. 

(Initial Decision at 4-5), ; , ' . 

The ALJ rejected as. "nonsensical" Ventura's arg1,1ment that Tarascio' s testing under 

Sections 135.293(a)(l) and (4)-(8) sho~d be considered as having been accomplished in March 

2005, rather than in February 2005, when Tarascio actually took that test. (Initial Decision at 12-

13.) Regarding Vent\U'a's theory of the case, the ALJ wrote, "The principal problem with the 

Respondent's theory is that it is not rooted in the language of the governing regulation." (Initial 

Decision at 9.) He wrote: 

13 
' 

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Page 17 of 33 

Nothing in the text of§ l35.293(a) supports the notion that a requirement for an annual 

test of a crewmember's knowledge really allow~ a crewmember to be tested once in a 

period of 15 months. Yet, that is the result we would reach if the Re~pondent's theory 

were adopted. If a crewmember were tested on the first day of the year and completed 

the testing program on March 31, for example, under the Respondent's version of the 

''modular" hypothesis and glvi'\g effect to ti:Je :Respondent's thesis that only the last event 

in the three-month testing-and-training cycle counts in calculating when the next training· 

and-testing cycle must take place, the crewmember would not be due for re-testing until 

the end ofMarch of the following year. Indeed, if we combine the :Respondent's view of 

how the "modular" hypothesis is applied with the notion of a one-month "grace" period, 

the deadline would extend to the end of April of the following year, That means that 

almost 16 months will have elapsed since the crewrn.ember was previously tested on the 

material set forth in§ !35.293(a). Interpreting a requirement for "annual" tests to allow 

that result constitl)tes quite a stretch. 

(Initial Decision at 9-10.) 

The AU also found that Ventura's theory qft):le case was flawed because it had failed to 

define the term ''module'' satisfactorily.' (Initial Decision at 1,0.) The AU wrote that Ventura. 

cot~ld not rely upon any guidanc~;: in F.A..A:Order No. 8400.10 or Ventura's training manual "to 

. ' ' change the unambiguous meaning of a regulation." (Initial Decision at 11.) He held that the 

regulation reCJ,uires that the pilot complete va;'io).ls recurrent training and checking events within 

-·12-calendar-menths,-not-15-calendarmonthsplusTgrace month;-(1nftiarDec1sfoii"iif f fJ 

The ALJ held that Tarascio was out of time when he made the three flights in April 2006, 

because "one-year-plus-a-grace-month hiatus for testing under§ l35.293(a)(l) and (a)(4)-(8) had 

expired at the end of March 2006." (Initial Decision at 13.) Hence, he held, Ventura used an 

unqualified second-in-command pilot on three flights in April 2006. (lnitial Decision at 13.) 

:Regarding sanction, the ALJ found that it W&s 'unfair to impose a heavy financial liability 

upon Ventura for several reasons, includil)g that "Ventura made the wrong guess" when "faced . . 

with an ambiguous regulatory situation,"24 (Initial Decision at 14 and 15.) The violation, the 

24 He wrote in the htiti..l Decision at 14 ;s follows:· 

14 
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Page 18 of 33 

AU held, was "neither extraordinarily blameworthy, intentional nor deliberate." (Initial 

Deciaion at 15.) Consequently, the AU aaseaaed a $1.00 civil penalty, rejecting the $15,000 

civil penalty sought by Complainant. 

III. Anaylsis 

A. 'J'be AL.)'s findings offa~t were supported by a preponderamie ofthe l'eliable, probative 

and substantial eviden~e, ,and his conclusions of Jaw were made in accordance with th~ 

applicable law, precedent, lind policy. 

Although the issue in this case is relatively easy to describe, the necessary analysis is 

more difficult, Simply put, pursuant to 14 (:.F.R. §§ 135.293(a) and (b), Tarasc!o was required 

to complete certain testing and checking every 12 months. The 12-month requil:ement of Section 

135,293, however, is modified by Section 135.301, which allows a test taken either the month 

before or the month after (the "grace month'') to be deemed as havh:tg been taken during the 

month it ls due (the "base month"). Further, paragraph 603B of FAA Order No. 8400.10, the 

Order that implements the regulations, provided that even if the required reCUIT<)nt test is not 

taken during the base month the following year, there is no violation for flight activities that ----

occru: within the grace month. 

This system of testing is relatively stralghi forward in circumstances where the bru;e 

month or the "checking month" for a particular pilot is already established ~cause the 

[T]he FAA had published "guidance" that was virtually at war wlth the tel>t of its regulation. 

While § 135.293 told the aviation community that flight deck crewmembQrs must be trained and 

tested on an annual basis, another section of tho FAR ... went on to say that the annual test of 

tlight check ('llquirement can be fulfilled once every 13 months. Then, to add further ambiguity to 

the requirement for annual testing, the FAA published § 10 of Order No. 8400, JO, which appears 

to say that the requirement for an annual test of piloting skills (meaning a test every 13 months) 

can be met in certain circ\llllstances by "adopt[in!l) a modular approach," perfonnlng the training, 

testing, or both, over a three-month perio~ and then treating ali of the testing as iflt had been 

done on the l11$t day of that three-month period. To add an additional enigma to the regulatory 

program, the agency's o)liefcounsel then issued an interpretation which can be construed to 

extend the annuaftrainlng-and-testing cycle to some 15 months! 

15 
PAGE 16/29 

Page 19 of 33 

detenuination of when testing "is due" is a simple matter. The difficulty in the instant caso; arises 

in connection with determining the checking month for a pilot, such as Tarascio, who is newly 

hired by the Part 135 certificate holder, here VentUra, ano who does not have an established 

checking month. On their face, the regulations are not ambiguous with respect to the 

requirement to have accomplished the requixed testing every 12 months (with a grace period). 

The ambiguity arises from paragraph 603A(I) of FAA Order No. 8400.10, regarding the 

establishment of the "training/checking" month. Paragraph 603A(l) of that O!'der advised that 

"[w]hen a crewrnember c<>mpletes an initial ... training progr!llll within a 3-calendar month 

period, the month in which the quaiifi~atlon currl~ulum segment is completed is then considered 

to be that crewmember's training/checking month and the operator may make a single record of 

the entire cun:iculum without noting when individual events occurred." If the training program, 

includi11g the quali:6cation segment, extends beyond three months, the Order advises, the 

certificate holder must "schedule the accomplishment ofxecurring events S\lparately," The Order 

i 

does not provide any e1>press guidance regarding circumstances where the qualificE>tion segment ________ _. ___ __'______.._____.. ~·~-· - ---------- .- ----------·-···-·--- --

is accomplished over more than the last month, which is what Ventura claims happened in this 

case. Nor does the Order make any express distinctio.h between training and testing. 

! •' ' 

In the present case, there is no question th&tTarascio took a Section 135.293(a) and (b) 

test with Inspector Fraher during February 2005 .

2

' By itself, that fact would compel the 

conclusion that Tara$cio would be requir"'d to complete thll same testing again by the end of 

March th<' following year. And, it would follow, that Ventura would be within regulatory 

" Ventura's argument that Fraher administered an incomplete flight test because ~he did not have 

Tarascio perform a V-1 cut Is frivolous because, as Inspector Sees explained, a V-1 cut is not required by 

the FAA or by Venturn's training program. See Respondent's Exhibit 9, at page 8-3, which Indicates that 

a pilot must demonstrate a takeoff with a powerplant {allure only in a multi engine aircraft but this "may 

be tested by altem~tive means if the p~rfonnance characteristics of the alroraft make this event 

hazardous, n 

16 

' i 
PAGE 17/29 

Page 20 ot 33 

compliance for any flights Tarascio flew as second in command through the end of March of the 

following year, but would not be within the regulations for any flights, such as the ones in 

' . 

controversy here, in April of the following year, Ventura defends the April flights, arguing that, ., 

notwithstanding Taxascio's testing in February 2005, his initial training was not concluded until 

' 

he underwent further training and testing at SIMCOM in March 2005. Ventura points to the 

language of the FAA's Ordet in asserting that because Tarascio's training and testing extended 

into March, it is March, not February, which should be considered the base or c;hecking month. 

lfthat were the case, then Tarascio's flights in April were within the grace period. 

It is not necessary to parse the potential conflict between the regulations and the FAA . . 

order in this case because Ventw:a did not demonstrate that Tarascio's training and testing in 

February and March were part of the same curriculum, and because even if they were part of the 

~arne curriculum, Ventura ilid not proye that the entire training program - start to finish - was 

accomplished within three months so that Ventura should be allowed to use March, rather thf.ln 

February, as his checking month for Sectionsl35.293(a)(I) and (4)·(8) testing. The --------- -------·· .. --··--

------ preponderance of the evidence supportS a determi~tion that February was Tarascio's checking 

month for those sections, and consequently, th~t the flights he made in April 2006 were after the 

expiration ofthe eligibility period for Section 135.293 testing, 

Ventura failed to offer sufficient proof that Tarascio' s "training program'' was limited to 

three montl!s or that his initial training program was not completed until after he attended 

tralning at SIMCOM. Peck's testimony that everything was completed within 6 weeks referred 

only to the time between the tests with Fraher and at SIMCOM. Ventura never presented a 

comprehensive explanation ofTarascib's training or when such training began. Ventura's only 

fact witness was tatascio, who testified that he 'took the test with Fraher on February 3, 2005, 

17 
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Page 21 of 33 

after completing the basic indoctrination tnrlning. 'Tarasclo, however, did not provide the date(s) 

of his basic indoctrination training or explain how long before the February 3, 2005, test hi~ 

' 

basic indoctrination training occurred. Peck had no personal knowledge ofTarascio's training. 

His testimony was based on training records. Ventura did not introduce any ofTarascio's 

training records. The training records,might have shown the dates on which 'Tarascio started aod 

completed the initial or reduced initial new hire training, depending upon how Ventura kept its 

records aod how long it took Tarasc!o to complete that curriculum. If Ventura only recorded the 

date on which Tarascio completed the initial or reduced lnithd new hire curriculum because the 

training was completed in 3 months, then someone with personal knowledge regarding how the 

records were kept needed to testify to that "fact." Ventura needed a fact witness, such 8$ the 

chief pilot or the chief operations officer, to testify about how.the operator kept its training 

records generally and Tarascio's training records, in p\nticular, and to explain what trai~ing, 

·' 1.~ 

testing aod checking Tarascio completed on what dates. However, no one from Ventura's 

management testified, 

Although not dispositive ofthd issue ofhiiw long the training program lasted, the record· 

reflects that Tarascio completed some testing' under Sections l35.293(a)(l) and (4)-(8) on 

December 8, 2004, No reason for the December 8, 2004, test with Mauro was given: This 

testing constitutes at least circumstantial evidence of a "training program" longer thao the threemonth period described in FAA Order No. 8400. I 0. 

Further, the preponderance of the evidence does not support Ventura's theory that 

I , . 

Tar8$cio had not completed his training aod testing under Sections l35.293(a) and (b) before he 

'i 

took the test and check with Inspector Fraher. Ventura contends that Inspector Frllber gave 

Tarascio the February check rutd test before he complete'd his Part 135 training because he 
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USCA Case #12-1451 Docurn~nt #1405654 Filed: 11/16/2012 

PAGE 19/29 

Page 22 of 33 

needed to participate iu the provh~cfil runs. To prove this theory, Ventura needed to introduce the 

company's training records and the testimony of a management official to explain those records 

as well as the circumstances surrounding the proving ruhs. Ti!l'!lscio did not keep his own 

training records and he did not have first~ hand knowledge about the timing of the proving runs. 

Inspector Fraher should not have administered the CO!llplete test and flig)J.t check under Sections 

135.293(a) and (b) respectively to Taraicio if he had not completed his required training. Also, 

proving flights are governed by 14 C.P.R.§ 119.33(c),26 (Tr. 411), and therefore, Tarascio should 

not have flown on any proving nms (and Ventura should not have used him) until he had 

completed his Pi!l't 135 training. Since the evidence, in pi!l'ticular, the FAA testing forms, 

supports a finding that Tarascio completed his training, testing and checking for the initial or 

reduced initial new-hire curriculum on February 3, 2005, then any training and Sections 

135.293(a)(2) and (3) testing and Section 135.293(b) checking he took in March 2005 was pi!l't 

of another cumculm:n. Consequently, Tarascio's March 2005 testing and checking could not be 

combined with February testing and checking to determine when recurrent Sections 

135.293(a)(l) and (4)-(8) testing was due ill2006. c( 

i 

I 

Expert testimony is evaluated on the basis ofits logic, depth and persuasiveness. Griffin 

Avionics, FAA Order No. 2007-9, at 10, n. 16 (Au;ust 2, 2007); Stambaugh's Air Service, FAA 

Order No, 2001-7 (May 16, 200l);Metcalf, FAA Order No. 1993-17 at 6 (June 10, !993). 

Peck's ell:peli testimony that Tarascio's training aod testing in February lind MiU'ch 2005 were 

pi!l't of thtl same curriculum was oot persuasive. Despite his claims that he had thoroughly , 

exill'llined Tatascio's records, he was unable to testify about when Tarascio was hired by Ventura 

"S~tion ll9.33(c) provides ln pertinent part that "[all proving tests must be conducted under the 

appropriate operating and maintenance requirements of part 121 or 135 of this chapter that would apply lf 

the applic1111t were fully certificated." 14 C.F.R. § 119.33(c). See also 14 C.F.R, § 135.1(a)(7) which 

states that Pl\!1135 governs ''(e]ach person who is an applicant for an Air Carrier Certificate or an 

Operating Certificate under (Part]ll9 of this chapter, when <;<Jnducting proving tests." 

l9 ' ! 
PAGE 20/29 

Page 23 of 33 

and when he began serving as a pilot for Ventura. More importantly, as the AU found, Peck 

l 

was unable to explain satisfactorily what a module is. The tenns "modular training," "training 

module" and "checking and qualification module" are defined in the FAA Order No. 8900,1, and 

had the same definitions ill its predecessor, FAA Order No. 8400.1 0

27 but Peck showed no 

familiarity with these definitions. In contrast, the description ofa rnodulEU' training program, 

includJ.ng curriculums, segments, modules, elements and events, given by Inspector Sees was 

consistent with the definitions of these terms in the FAA Orders. (See Appendix III.) Further, 

Peck's testimony was unpersuasive in light of his incorrect testimony that proving flights are 

conducted under Part 91 and that Tarascio's flight test with Fraher was incomplete. " 

In light of the above, it is held that Ventura failed to prove its affirmative defense that 

Tarascio hRd completed his reduced initial new-hire training and testing within a 3"month period, . ' 

ending in March 2005, which allowed Ventura to use him in revenue service in April2006 

although he did not undergo recooent Sections 135.293(a)(l) and (4)--(8) testing wtil May 2006. 

)l, The ALJ Did Not Err lu Recelvlug Iuspector See~ As An E,.pert Witness. 

Ventura argued that the ALJ should not howe accepted Sees as an e«:pert witness in this 

case. According to Ventura, Sees's testimony did not meet the test for reliability set forth in 

Kumho Tire Co. v. Carmkhael, 526 U.S. 135 (1999), and therefore, the ALJ should h&ve 

excluded Sees's expert opinion testimony. 

27 S~e Appenili" Ill. 

"Peck opined that Tarascio's flight test In February200S was incomplete beca,.se Tarascio did 

not perform a V-I cut, which "is where you Jose an engine right after the speed of V -1" while "[y]ou are 

still on the runway." ('l'r. 283·284). However, a V"l cut is not requit~d under Ventura's trai,ning manual, 

whicb provides that takeoff with powerplant failure in a multlcngine aircraft "may be tested by alternative 

means if the performance characteri..tics of the aircraft make this event hazardous.'' (Respondent's 

Exhibit 9 at page 8-3.) See testimony ofinspector Sees at Tr. 444-447, and 449-500, 

20' 
0~/ll/-'llilfl8 ....20· 35. 31'!12942525 · GREGORY S WINTON,ESQ · u:sc-A c,Q',;e n12.-14t:>1 uocument#1405654 Filed: 11116/2012 

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In Kumho, the Suprem<) Court held that trial judges were required under Fed.R.Evid. 702 

I 

to determine whether expert opinion testimony based upon technical or other specialized 

knowledge was sufficiently reliable to l'!dmit. Previously, in Daubert v. Merrell Dow 

Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Court had held that trial judges were required to 

perform such a "gatekeeping" function regarding·sc/entific expert testimony. The Court in 

' Daubert gave examples of factors for trial judges to consider including whether a theory or 

tech.nique can be tested, has been subjected to peer review and publication, has a high known or 

potential error rate, and has been generally accepted with the relevant community of experts. 

In Kumho, the Court considered whethe~ the Dcziibert factors should be considered by 

trial judges regarding technical experts. The Court held that it could "neither rule out, nor rule 

in, for all cases and for all time the applicability of the factors mentioned in Daubert ... " because 

) 

~ '( I ! 

"[t]oo much depends upon the panicular circumstances of the particular case at issue." Kumho, 

526 U.S. at 150. In the present case, the questions about testing, peer review, publication, and 

error rate, and acceptance by the relevant community of experts are inapplicable, " 

Agency proceedings are governed by the Administrative Procedure Act (APA) and the .. 

agency's individual procedural rules. The APA provides that "[a)ny oral or documentary 

29 Moreover, while the Federal Rules of Evidence govern the admission of evidence in jury trials, 

ALJs in agency proceedings are not bound to follow those roles. Bennett v. NTSB, 66 F.3d 1130, J 137 

(I O'h Cir, 1995). "Agencies rela>~ the roles of evidence because they believe that they have the skill 

needed to handle evidence that might mislead a jury." Peabody Coal Company v. McCandless, 255 F.3d 

465 (1' Cit. ZOO!) (referring toRlchardson~. Pmrles,.402 U.S. 389 (1971). Kumho and Daubert are 

based upon Fed.R.Evld. 702. Hence, because ALJs in FAA civil penalty proceedings are not required to 

apply Fed.R.Evid. 702 when deciding whether to admit expert evidence, they ate not required to follow 

the t"st" for exclusion of exgert testimony set forth in Kumfto or Daubert either. See e.g., Bayliss v. 

Bamhart, 427 F.3<!1ZJ 1 (9 Clr. 2005) stating that the "Federal Rules of Evidence do not apply to the 

admission of evidence in Social Security administrative proceedings" an<! because Daubert and Kumbo 

rest upon an interpretation of Rule 702, neither decisio~. govems the admlsoibility of evidence before an 

ALJ In administrative proceedi11g in a Soolai Security case); Peabody v. McCandless, :!55 F.3d at 469. 

(Daubert does not apply directly in black lung cases, bec&use it Is based on Fed.R.Evid. 702, which 

agencies .need not follow.) · 

,, 

21 
PAGE 22/29 

Page 25 ol33 

evidence may be received but the agency as a matter of policy shall provide for the exclusion of 

ittelevant, immat<:rial or unduly repetitiOUJj evidence." 5 U.S.C. § 556(d). Section 13.222(b) of 

the FAA's Rules of Practice in Civil Penalty Proceedings, 14 C.F.R. § l3.222(b) similarly 

provides that an ALJ "shall admit any oral, documentary, or demonstrative evidence introduced :: '"I 

by a party but shall exclude irrelevant, imtnaterial, or unduly repetitiou$ <:lVidence. Inspector 

Sees's testimony was not irrelevant, immaterial or unduly repetitiou~. 30 

C. VeQturil's Argument that Section 135.293(a) is Void for Vagueness is Rejected, 

Ventura argues on appeal that S6ctlol). 13S.i93(a) is void for vagueness based upon the 

AU's finding that "Ventura, in deciding how to deal wlth Capt. Tar&scio's qualifiMtions, was 

faced with an ambiguous regulatory situ&tion." Ventura argues that because, as the ALI found, 

the "published guidance was virtually at w&r with the text of the regulation," it did not have fair 

warning of the rule's requirements. Hence, Ventura urges, the Administrator should reverse the 

ALJ's initial decision and dismiss this CEISe. (Appeal Brief at 23, 25.) 

Under the void for vagueness doctrine, a law ~r regulation !hat_does not fairly infonn !! 

--- ·-·---~ ' ·. ), ' ·' 

person of what is commanded or prohibited or that encolir&ges arbitrary and discriminatory 

• i I \ ' 

enforcement is unconstitutional because it violates due process. Trans States Airlines, Inc., FAA 

Order No. 2005-2 at 9-10 (March 9, 2005). When evaluating a void for vagueness argument, a 

I 

court will require only a reason11ble degree of certainty, and will require less precision for a 

regulation that does not govern First Amendmeut activities. ld, citing Throckmorton v. National 

Transportation Safety Board, 963 F.2d 441, 445 (D. C. Ck 1992). The Administrator has 

3

° Finally, Ventur& argued that "the circumstances of his [Sees's]late involvement in this case 

casts a large dark shadow over the logic and depth of his testimony," and, thereforo, "his testimony should 

be disregarded." (Appeal Brief at 31.) Such hyperbole is unpersuasive and unwi!Winted. While the FAA 

did not infonn Ventura that it planned to call Sees as an expert witness until shortly before the scheduled 

hearing date, the ALJ postponed the hearing, and Vontura was able to depose him prior to the hearing in 

April. (See Tr. 479.) ' 
• A.t'2.842525 GREGORY S_ WINTON, ESQ e~/ll{S~A c~~W12-i'fJJ: vocument #1405654 f"iled: 11/16/2012 

' 

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Page 26 of 33 

<!eclined to consider certain constitutional challenges, such as a challenge to the rules of practice 

" 

as a whole, because a Federal Court of Appeals is the appropriate forum for such appeals.'' 

Continental Airlines, FAA Orde!' No. 1990-12 at 6 (Apri125, 1998). The Administrator has 

considered certain claims of vagueness to ensure that a regulation <:~llegedly violated is defined 

' with a sufficient degree of specificity so as to support the imposition of a punitive sanction. 

American Airlines, FAA Order No. 1999-1 at 7-8 (March 2, !999). 

The regulations are reasonably clear. As Sees (testified: 

The regulations stipulate and they are very plain and straightforward that no operator may 

use a pilot nor may a pilot serve as a pilot for an operator if they have not, within the past 

twelve calendar months, received a 135.293(a) and (b) test and !35.301 specifies that 

there is a grace month period that if they took ~hat te~t in the eleventh or thirteenth month, 

it would be considered to have been taken in the twelfth month. That did not happen in 

this case. '· · 

(Tr. 403.) 

D. 'l'he ALJ Should Have Found That Veqtu~a Violated Section 91.13. 

The AU made no specific finding regarding whether Ventura violated Section 91.13 but 

-·- _he_tiidllnd.that'I'arasciQ-had-the-J.mowledge-neeessary-to pass-the Sectiun-115:293(a)-testSand --· ·· 

that public safety was not &t risk in April 2006 when Tarascio flew as second in command. The 

FAA argues on appeal that "[b)elng that Mr. Tar~s.cio~s qualifications were untested and 

' 

un.l<nown during those April2006 flights, it was error for the ALJ to concllJde that the publlc 

safety was never at risk .. , on the three flights." (Complainant's·Appeal Brieht 18.) 

Section 91.13(a) prohibits any person fraT operating an aircraft "in a careless or reckless 

manner so as to endanger the life or property of another." 14 C.F.R. § 9l.l3(a). Absent 

extraordinary circumstances, a residual or derivative violation of Section 9l.l3(a) is established 

once cerla.ln operational violations are proven. E.g., Ace Pilot Training, FAA Order No. 2005-12 

31 "Challenges to the constitutionality of an agendy rJgulation ... lie outsldo the cognizance of 

thaUgency." Howard v. FAA, 17 F.3d 1213,1 1218 (9" <:;ir. 1994). 

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Page 27 of 33 

(August 17, 2005) ( operntion of <m aircra!:l that.is not in compliance with airworthiness directives 

constitutes a violation of 14 C.F.R. § 39.3, and a residual violation of Section 9!.13(a)); USAIR, 

Inc., FAA Order No. 1992· 70 (December 21, 1992) (operation of an unalrworthy aircraft 

constitutes a violation of 14 C.P.R. §§ 121.153(a)(2) and a residual violation of Section 91.13); 

Administraror v. Seyb, NTSB Order EA-5024 (febru!lry 27, 2003) (deviation froru an air traffic 

control instruction is a violation of 14 C.F,R, § 91.123 and a residual violation of Section 9], 13); 

Administrator v. Rogers, NTSB Order EA-4428 (February 20, 1996) (operating an aircraft wi01 

an inaccurate load manifest coustituted a violation of Section 135.63 and a residual violation of 

Section 9l.I3(a)). Proof of actual danger is not necessary to establish a violatiou of Section 

91.13(a) because that regulation prohibits auy carele.ss orireckless practice which is inhereutly 

dangerous and has the potential to jeopardize safety of persons and property. Terry, FAA Order 

No, 1991-12 at 10 (Aprill2, 1991) (citing /iaines v. Dep'r ojTransp,, 449 F.2d 1073, 1076 

(D.C. Cir.l971)), afl'd sub nom, Terry v. Busey, [}72 F.2d 1445 (D.C. Cir. 1992). 

ln this case, the conclusion that Ventura viol~ted Section ~.l3(a) by acting in a careless. 

manner so as to endanger the lives and property of others arises from the finding that Ventura 

violated Section 135.293(a)(l) and (4r(8), and no specific evidence of carelessness or actual or 

potential danger was required. Permitting a pilot who has not demonstrated in a timely fashion 

that he has the knowledge required nuder the regulations to serve as a crewmember on flights for 

compensation or hire constitutes a careless endangerment of the safety of passengers and other 

crewmemberij, as well as ofp:l'operty. The fact that T:\rascio passed the test on May 6, 2006, 

with Iuspector Rogers does uot prove that Tarasdo h::n the requisite knowledge one ruouth 

earlier. However, the finding of a residual violation of Section 91.1 :i does not warrant an 

iucrease in the civil penaliy, OoJet, FAA Order No. 2012-5 at 15-16 (May 22, 2012), 

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E. The $1.00 Assessed By Tbe ALJ Is Not Consistent With Applicable Law, Precedent, and 

Public l'~;~licy. 

!. The ALJ's Failm:e To Consider FAA Sanction Guidance Was Arbitrary And An Abuse 

Of Discretion. 

:Rogers testified that he had relied upon p11ragraph Ci of the Sanction Guidance Table in 

FAA Order No. 2150.3A, Appendix 4, part 1. (Tr. 110-111.) The FAA sought to introduce a 

copy ofan,excerpt from FAA Order No. 2150.3B~ whic~ was in effect on the date of the hearing, 

·rather than au excerpt from FAA No, Order 2150.3A, which was in effect at the time of the 

flights in this case, The ALJ noted at the hearing that he co1.1ld have taken judicial notice of the 

pertinent portion of FAA Order No. 2150.3A. Instead, the ALJ gave the FAA leave to submit 

the pertinent portion from FAA Order No, 2l50.3A as a late-filed exhibit (Tr. 503), but did not 

specify a date certain for that submission. Also, the ALJ directed both parties to file posHearing 

initial briefs and post-hearing reply briefs simultaneously. (Tr. 501.) Instead of filing the 

e)(cerpt from FAA Orde~ No. 2150.3A separately, lhe:FAA attached the excerpt to its initial posthearing brief. The ALJ ruled in his decision that the FAA's sub~~SIJiOn W(IS to()Iate !Jecause "it_ .. 

deprived the Respondent o:f;'the opportunity to examine it and refer to it in its post-hearing initial 

brief." (Inltial Decision at 14.) 

j ·l 

Under the circumstances, it was arbitra~y and an abuse of disc(etion for the ALJ to reject 

the excerpt from FAA Order No. 2150,3A as filed too late for the following reasons. The ALJ 

dld not establish a firm due date fot the late-filed exhibit, and the fAA attorney had no reason to 

' 

believe that the ALJ expected the excerpt to be submitted prior to the filing of the initial posthearing brief. Mo(eover, although superseded by FAA Order No. 2150.3B, FAA Order No. 

21 S0.3A remains accessible to the public. 32 Ventura and the ALJ Jmew from :Rogers' testimony 

31 This order may be obtained at : . htrp:llr'il.fqa. gov/Regulatory and Guidance Ltbrarv!rgOrders. nsf(kel!(Order%2 0215 O.JA. 

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which portions of that order the FAA considered relevll!lt. Importantly, Ventura had an 

opportunity to comment about the excerpt when it filed its post-hearing reply briefin response to 

the FAA's arguments about swction in its initial post-hearing brief. Hence, Ventura was not 

placed at a disadvll!ltage by the submission of the excerpt as w attacbment to the FAA'spost· 

hearing initial brief. 

2. A $15.000 Civil Penalty ls Appropriate. 

The Administrator has broad authority to assess civil penalties against individuals for 

violations ofth;:: regulations. 1112006, when the violations in this case occurred, the 

Administrator had the authority to ass~ss an $11,000 civil penalty per violatio11 of the Federal 

Aviatio11 Regulations (FAR), with each violation on each flight constituting a separate violation. 

49 U.S.C. §§ 4630!(a)(2) and (a)(4); 14 C.P.R. § 13.305(d) (2006) (regarding inflation· 

adjustme11t of civil penalty authority.) 

An appropriate civil penalty must reflect the totality of the circumstances sun:01mding the 

violations." The Administrator provided policy guidance for agency empl~{'(;'()ll!O foll_o_w 

regarding sanctions for different types ofviolations of the Federal aviation statute and the FAR 

in the Compliance and Enforcement Order, FAA Order No. 2150.3A. The Sanction Guida11ce 

'fable, COI:J!ained in Append!){ 4 of that order, was designed to provide "general guidance for the 

exercise of the agency's prosecutoriai discretion" to "assure national consistency in enforcing the 

Federal Aviation Regulations." FAA Order No. 2150.3A, Appendix 4 at page I. The S!lllction 

33 The factors that the l'AA will conslder include; (I) the nature and circumstmces ofthe 

violation; (2) the extent and gravity of the violation; (3) the person's degree of culpability; (4) the 

person's history of violations, if any; (5) the person's ability to pay the civil penalty; (6) the effect on the 

person's ability to stay in business; and (7) other matters as justice may req~ire. War below's Air 

Ventures, Inc., FAA OnlerNo. 2000-3 at 16-17, n.22, and 21 (February 3, 2000), r?consid?rafion denied, 

FAA Order No. 2000-14 (June 8, 2000) and FAA Order No. 2000·]6 (August 8, 2000),petltlonfor 

review denied, Warbelow 's Air Ventur?s v. FA.A., No. 00-70423 (91h Cir, September 20, 2001). 

26 
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Page 30 of 33 

Guidance Table in FAA Order 2150.3A, Appendix 4, recommends a minimum, moderate a!ldlor 

maximum range sanctions for diffel:o;nt types of violations committed by air carriers. When the 

I 

FAA formulated these sanction ranges for different types of violations, the agency considered the 

nature, extent and gravity of each general type of violation ~:~s well as the individual's prior 

violation history (in that the table provides recommended penalties for first-time offenders.) 

Folsom'sAir Service, Inc., FAA Order No. 2008-11 at 12 (November 6, 2008); Schultz, FAA 

Order No. 1989-5 at 12 (November 13, 1989). 

The FAA later modified these ranges through the issuance of the 

Compliance/Enforcement :Bulletin No. 92-1, included ,in Appendix 1 of FAA Order No. 

2150.3A. The guidelines in Compliance/Enforcement Bulletin 92·1 were issued as "a means of 

placing a relatively equivalent deterrent effect on each air carrier· that violates the same FAR, by . 

considering the size of the carrier in determining an appropriate civil penalty."" I 

Compliance/Enforcement Bulletin No. 92-1, FAA Order 2150.3A, Appendix 1, at 103. Under 

Compliance/Enforcement Bulletin No. 92-1, the maximum, moderate, and minimum civil 

penalty ranges vary depending upon the size of the carrier. " 

The Sanction Guidance Table, paragraph 0, explains that a maximum range civil penalty 

is appropriate in cases Involving the use by an air carrier of an unqualifle<! creWmember. The 

fAA did not introduce any evidence regarding Ventura's size. Consequently, it is appropriate to 

34 This Bulletin established a system for classifYing air caniers by size. Under thatl3ulletin, air 

carriers were divided into four groups, with tbe largest air carriers belqng to Group I and the smallest air 

canlets included in Group IV. Group IV Included Part 135 operators having fewer than six aircraft or no 

more than thre~ different typos of airorllft, and employing fewer tb!Ul six pilots. Generally speaking, 

Group X camers are subject to higher civil penlllties than the carriers in Grouv I. 

' 

"for example, the maximum civil penally range (as ~djusted for inflation) in 2006 for a violation 

by a Group I canier (Part 121 and Patt 135 air carriers with annual operating rovenue of $1 00,000,000 or 

more) was $7,500 to $11,000. The maximum civil penally r!Ulge (as adjusted for inflation) in 2006 for a 

violation by a Group N canier (tbe smallest Part 135 air carriers) was $4,000 to $11,000 per violation. 

27 ' 
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apply the xnaximuro civil penalty range for a Group IV operator. At the tixne of these vlolations, 

the maximum civil penalty range for Gfoup IV operators, as >1djusted for inflation, was $4,000 to 

$11,000 per violation for each flight. Compliance/Enforcement Bulletin No. 92-1, FAA Order 

No. 2150.3A, Appendix l, at 106, and Appendix 4 at 6; 14 C.P.R.§ l3.305(d)(2006), 

The $15,000 civil penalty sought by' the FAA is consistent with the sanction guidance in 

•, 

effect at the time for Ventura's vlolations of Sections l35.293(a)(IH4)-(8) on three flights. No 

additional penalty is appropriate for the violations of Section 91.13 because they were residual 

violations. The Sanction Guidance Table, as modified by the Compliance/Enforcement Bulletin, 

express the Administrator's sanction policy, and if an AU assesses a civil penalty that is not 

consistent with agency sanction policy, the Admini~trator on appeal may reverse the AU, 

Folsom's Air Service, FAA Order 2008-11 at 14. 

The ALJ gave several xeasons for assessing only a nominal $1.00 civil penalty. The ALJ 

explained that "in the final analysis, as we have see'n, ventura made the wrong guess, but it can 

hardly be faultecl for having to guess; that is what the regulatory atmosphere required of it." ------- ------·-·-·------

(Initial Decision at 15.) However, Ventura introduced no evidence to prove that any member of ' ' 

its man!lgement l.'elied upon FAA Order No. 8400. 10, paragraph 603, when deciding whether 

Tarascio was qualified to fly as co-pilot on the fligh~ on April I, 2, and 13, 2006. The evidence 

in the record shows only that Ventura's expert witness thought that Ventura's use ofTarascio did 

not constitute violations of Sections 135.293(a)(l) and (4)-(8), Ventura's expert witness, 

however, did not assign Tarascio to those nights. Hence, there is no evidence that Ventura 

"made the wrong guess" based upon the ·~idance contained in FAA Order No. 8400.10, 

The AU i'llso stated, when j1.1stifying the $1.00 civil penalty, that It was significant th11t 

Tarascio was "at all relevant tixnes knowledgeable and skillful enough to pass all of th~: tests set 

28 
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Page 32 of 33 

out in§ !35.293(a)." (Initial Decision at 15.) However, the fact that Tarasciso passed the 

Sections 135.293(a)(l) and (4)-(8) testing approximately I month after the flights Is fortunate, 

and at best, justifies a penalty at the lower end of the appropriate penalty range. The $15,000 

civil penalty amounts to 11 $5,000 civil penalty for the violations on each of three flights, and 

consequently, is at the low end of the maximum penalty range for a Group IV carrier. It should . \ 

be noted that taking and passing the lomwledge t<:st required under Sections l35.293(a)(l) and 

(4)-(8) after the flights in question defeated the purpose of the periodic testing requirement which 

is to ensure that a pilot retains the \mow ledge th11t he .. or she needs to fly persons or property for 

compensation or hire before flying. 

The ALJ also justified the imposition of a nominal $1.00 civil penalty on the fact that the 

FAA did I)Ot introduce evidence of prior violations by Ventura. The sanction ranges set forth in 

FAA guidance, however, reflect the appwpriate civil penalties for persons without a history of 

violations. FAA Order No. 2150.3A, Appendix 4, at 1. 

Vl. Conclusion 

Ventura's appeal is denied, and the FAA's,appeal is granted in part. A $15,000 civil . '· 

penalty is assessed." 

~LPHUBRTA ACTING ADMINISTRATOR 

Federal Aviation Administration 

36 Thi~ order shall be considered an order assessing civil penalty unleos Respondent tiles a 

petition for review within 60 days of service of this decision with the U.S. Court of Appeals for the 

District of Columbia Circuit or the U ,S. court of appeals for the circuit in which the respondent resides or 

has its principal place of business, 14 C.P.R.§§ !3.16(d)(4), l3.233(j)(2), 13.235 (Z009). See 71 Fed. 

Reg. 70460 (December 5, 2006) (regarding petitions for reyiew of final agency decisions in civil penalty 

cases). 

29 ( 
'· '.! 

' USCA Case #12--1451 Document #1405654 Filed: 11/16/2012 Page 33 of 33 

CERTIFICATE OF SERVICE 

I hereby certify that I have this date, November 16,2012, mailed one copy of the 

foregoing_ Petition for Review addressed to: 

Christian Lewerenz, Esq. 

Office of Assistant Chief Counsel 

FAA Eastern Region, AEA-7 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

Tel: 718-553-3258 

Fax: 718-995-5699 Original Signed By: 

Gregory S. Winton 

GREGORY S. WINTON, ESQ. 

The Aviation Law Firm 

One Research Court, Suite 450 

Rockville, MD 20850 

T<;Jl: 301 294 8550 · 

Fax: 301 294 2525 

Counsel for Petitioner 

3 

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