VenturaAir Services, Inc.,
Petitioner,


### v. FEDERAL AVIATION ADMINISTRATION, Respondent. 

## NOV 115 

## 2D1Z



# ____ CLERK ) 

### ) ) ) ) ) ) ) ) ) 

### ) ) ) Petition for Review 

# 12-1451

PETITION FORREVIEW Ventura Air Services, Inc., Petitionerherein, by and through undersigned counsel, hereby files a petition to this Court for review ofa final agency Order rendered by the Administrator of the Federal Aviation Administration (hereinafter the "FAA") in The Matter ofVenturaAir

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 OrderNo. 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 FEDERALAVIATION ADMINISTMTlON WASIDNGTON, :OC IntheMatter of: VENTURA AIR SERVICES, INC. FAA Order No. 2012-12 Docket No. CP08EA0008 FDMS No, FAA-2008-0505 1

Served: November 1,2012 DECISION AND O!IDER 2 PAGE 01/29 Page 4 of 33

Administrative LawJudge ("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 atimely fashion. The ALJ assessed anominal $1.00 civil penalty! 

### theFAA and Ventura filed cross-appeals, On appeal, Ventura argued that(!)the ALJ's fwdings offact we:re not supported by apreponderance ofthe 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 experttestimony. The fAA, on appeal, argued thatthe ALJ should have found that Ventura also

1Generally, materials filed in the FAA HearingDocket (except for m&terlals filed in security cases) 

### are also available 

### for viewing athrtp:llwww.regulations.gov. 14 C.F.K § !3.210(e)(i). 2The Administrator's civil penalty decisions, along with lnde:xes ofthe decisions, the rules of practice, and other**informatio~t,** are availllble on thelntemot atthe 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 availablethrough LEXIS (TRANS library) and WestLaw (FTRANFAA database). For additionallnfonnation, see the Web site. 3 See Appendix Ifor the full telct ofSections 135.293(a)(l) and (4)-(8).
4Atwo-day hearing was held on April 7-8, 2009.• 2.9.42525.. GREGORY S WINTON, ESQ**e~/ll~~A ~str**  #12

# 3 n,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 appliedto the facts ofthis case.

. 

### ' As explained in this decision, Ventura's appeal is denied. This decision holds that the preponderance ofthe evidence supports·the ALJ's decision 

### tliat yentura used 

### apilot 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 InspectorRoy 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**  

### writtentesting of

### apilot's non-aircraft· specific 

### knowledge, including pertinentregulations, piovisions ofthe carrier's operations specifications andmanual, navig>ttion, air

### traffic control procedures, 

### and meteorology. Sections 135.293(a)(2)-(3) 

### require written

### or~;~!**te~\ing -~fa**  pilot's knowledge about theparticular type of 

### aircraft

### that the pilotwill 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 

### ofaircr11ft 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 apllot, nor may any person serve as a

### pilot, unless since the beginning ofthe 12111 

### calendarmonth before that service, 

### thatpilot has passed" awritten

' ' See Appendix I

### for the full text 

### ofSection .135.2iJ(a). 'SeeAppendix II for the full text ofSection 135.293(b). 2/, 20•35**.36.12~42525** GREGORY S WINTON, ESQ**111**

### l3~A 

### case #1L-14t:>l

. Document #1405654 F·iled: ll/16/2012 PAGE 63/29 Page 6 of 33



### or oral test and aflight check. This requirement mustbe read in conjunction with Section !35.30l(a), 

### whichprovides as 

### follows: Ifa crewtnemberwho is required to take atest or aflight check under this part, completes the test orflight check in 

### the calendar'monthbefore 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),lfapilotpassed a written or oral test 

### on all the areas covered by Section 135.293(a) in February ofYear I, the pilot could satisfy Section !35.293(a)'s xecurrent oral or written test requirement by completing a !mowledge test 

### ' ' 

### no laterthan the end ofthe "grace month," March ofYear 2. (See Tr. 39, 42.) In this example, February would be the "base month" and, under Section 135.301, ifthe pilotcompleted the I 

### recurrent !eating during the following January, February,**o~** 

### March ofYear 2, the testing would be considered as accomplished in February ofYear 2. (Tr. 42.) This 3-month period, comprised ofthe 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 FAAAssistant ChiefCounsel Rebecca MacPhersonto Gregory Winton, Esq., dated


# ., ' 

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

### FMInspectorMark 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 ofthe oral or written test, the Sections 135.293(a)(2) and (3) (aircraftspecific) portions ofthe ornl or written test, and the Section 135,293(b) flight check.·. (Tr. 118- 119.) ' 

### In 2004, Ventura, the holder ofanair carrier certificate, hired Nicholas Tarascio to serve
as second in command ofaLear 25 and Lear 55. (Tr. 176-177.) Before that, Tarascio worked · 3• 4252ll GREGORY S WINTON, ESQ '**11**

### \J~~~**C~s~ #12-1%31**  uocument#1405654 Filed: 11116/2012 PAGE 04/29 Page 7 of 33**fo~** AirEastManagement, another company operating under l'art 135, 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 Veritura, 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 

### CHECKAIRMAN 12/08/2004 (a)(!) & (4)-(8) Not Applicable InspectorMauro 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 InspectorRogers

flights un<lerPart 135 onApril! and 2, 2006 in aLear 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) atthe
I time, for the oral or written testrl'qnired under SQQ"tio)is 135.293(a)(l) and (4)-(8), 8 (Tr. 29-30.)

7Differences 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 acrewmember serves in the same papacity**on~** particularvariation ofthat aircraft." 14 C.F.R. § 135.32l(a)(4). Tarascio testified thatVentura was goingto operate a**Le~~r** 25, not aLear 35, aircraft. (Tr. 190.) Hence, after his Lear 35 simulatorrecurrenttraining and tesdng, he took differences training in the Lear 25 and laterthe Lear 55. 'Because Rogers was not rated in the Lear, he could not give the Sections 135.293(a)(2) and (3) portions oftho oral orwritten test. (Tr. 31-32, 37,38.) 4,, I !. -20•35 3012942525 GREGORY S WINTDN,ESQ

### ~**1J~l\** L-ase #12-l4bl uocument #1405654 Filed: 11116/2012 PAGE 05/29 Page 8 of 33



### :Rogers testified thatbefore administering the test, hereviewed 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 ofoperations, Gould Ryder, whether there were anyrecords to showthat Tara.<Jcio had completed the**non-~rcraft** 

### specific knowledge, test by 

### the end ofMarch 2006, but Ryder neverprovided 

### 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 ofthe l'AA 

### Form 8400-3, that 

### a"new base month [is] established for 135.293(a)(I), (4·8) 

### only," (Complainant's Exhibit 

### 1page 6; 

### Tr. 64.) The FAA argued that Tarascio was overdue for the non-aircraft specific portions ofthe I 

### oral or written testrequired 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 ofthe test again no later

### than the last day ofMarch 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 testrecords that 'l'arascio had completed arecurrenttest as required by Sections 135.293(a)(l)**m~d** 

### (4}-(8) priorto 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 recurronltraining and a Sections 135.293(aX2)-(3) 

### test pertainingto 

### the LearJnthe simulator 

### at SIMCOM in March 2005. 

### (Tr. 154-155.) 

### 5'0,\l/11/2008 _.20: 35 3012942525 GREGORY S_,WINTQN, !';SJ;l U::>CA case #12-14!:>1 uocument #1405654 Hiett 11/1ti/2012 PAG!': 05/29 Page 9 ot 33



### Ventu:ra argued that 

### Tarascio was current on his Sections 135.293(a)(l) and (4H8) testl11g when he served on 

### the revenue flights inApril 

### 2006 because, in Ventu:ra'

### sview, Tarascio's testing 

### date should have been deemed to be 

### in March, not February. Ventura's argument was based on its interpretation ofguidance in FAA OrderNo. 8400.10. Areview of training programs implementedby 

### Parll35 carriers generally and Ventura's training program" in particular is necessary to understandVentura's arguments. Crewmembertraining requirements are 

### set forth in 14 C.F.R. §§ 

### 135.321-135.353. Section 135.343 provides that: No certificate holder may use aperson, normay 

### any person serve, as a 

### crewrnember in operations under this

### part unless 

### that**~rewmember** 

### has completed the appropriate initial orrecurrent training phase 

### ofthe 

### training program appropriate to the type ofoperation in which 

### the crewmember 

### is to 

### serve since the beginning o:fthe l21 h 

### calendar month before that service. Section I35

### .323(b) provides a 

### "grace month" for training, similarto 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, InspectorRoy Sees, 11 

### whom the 

### AUfound qualified as an expert in pilottraining'• and testing, (Tr. 398·399),**te~tified** 

### about

### training programs. He testified that 

### acarrier'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 hoide; 

### must obtain initial and·final FAA approval ofatraining 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 atthe FAA Academy atthe Mike Monroney Aeronautical Center i(t Oklahoma City, Oklahoma. (Tr. 388.) Priorto his assignment atthe FAA Academy, he served as the supervisor ofthe Scottsdale, Arizona Plight

### Standards District Office (FSDO). He testified that lie has taught all ofthe FAA**Acad~:my** courses, butprimarily those related to aircarriertraining progmms, pilot testing, proving flights and air carrier certification. (fr. 388-391.) 13 See Append!» Ill for definitions ofthe following terms as 

### set forth In FAA Order 

### 8400.10: training program, modular training, categories oftraining, cuiTiculum, cun!oulum segment, training module, element, element, and checking and qualification module.
6 ''**~·**1**0~/Ul2ll08** 20: 3o. 3012942o2o GREGORY S WINTON, ESQ · USCA Case #12--JA!J1 Document #1405654 · Filed: 11/16/2012 PAGE 07/29 Page 10 of 33



### crewmember for aparticulartype 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 ofany curriculum. (Tr. 431.) 

### Curxiculum segments are divided into modules, 15 

### which are composed ofelements and 

### events." Section 8ofVentura's training manual describes the Qul\lification Segmentfor Ventura pilots. (Respondent's Exhibit 9,) 

### Completion "ofall the curriculum segments lis listed for the initial newhire curriculum" is aprerequisite 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 ofSections 

### 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 apilot serving as second in command, according to the manual excerpt iptroduced 

### at the hearing, requkes the completion ofthe 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 awritten training program curriculum for e..chtype ofaircraft for each crewmember req11ired for thattype aircraft." 

### 14 C.P.R.§ J35.327(a). Each 

### curriculum must include ground and flight training

.. i "Forexample, 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 7at 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 FlightTraining shall consist ofthe Operator Specific modules (l3IO-I through Bl0-3)**ofth<~** Basic Indoctrination Curriculum and the 

### RecurrentTraining Modules ofother 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 newhire curriculum to train him. (Tr. I80-181, 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 oftraining aids 18 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 ofwhich 

### is taught 

### in 

### aclassroom and some ofwhich Is taught in 

### asimulator. 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 expertin air carrier operations. (Respondent's Exhibit 8; "J;r. 252, 254-255.) Since 2005, Peckhas boon a consultllnt for the law firm representing Ventura in this litigation. In 2005, Peck retired from the FAA, after 33 years ofemployment, 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 ofoperations for Ventura but no mention ofthis position was made ln his teBtimony atthe heating. He did not claim to testifY based upon personal knowledge ofthe**ev~;:ntll.** · 18 See 14 C.P.R. § 6J,I(b)(7) for the definition of"flighttraining device." 19 See !4 C.P.R. § 6l.l(b)(5) for the definition of"flightsimulatot." 8' • 35 3B1294252!:i GREGORY S WINTON, ESQ

.**~f,lllJtj~ C~Beli12-T4bl**  uocument #1405654 Filed: 11116/2012 PAGE 09/29 Page 12 of 33

Under its operations specific&tions dated March 3, 2005, Ventura was**authoriz~d** to send its jlilots to SlMCOM, aPart 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 aportion 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, 

### ori-equalification training program within 

### a3-calendar month 

### period, the month 

### in which the qualifio4tion curriculum segment 

### is completed**~~** then considered to be that crewmember's training/checl<ing month. 

### Ifthe 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 ofrecurrent traini.ng

## may then be bas<)d on the training/checking month

..... (Respondent's Exhibit I.) Based on this guidance, Peck testified that ifa 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 aLear 25 previously, and therefore, it is likely that It had not had authority to use SMCOlV! for Lear 25 training priorto the approval ofthese operations specificallons. 21 Peck testified thathe comparedthe pertinent language in the current order, FAA OrderNo. 8900.1 with the now superceded FAA OrderNo. 841)o,JO,**.~ncl** found that the pertinent lan!l"age is practically identical in the two orders. (Th. ;!61.)
9· LZ942525 GREGORY S WINTON,ESQ

### El!I**11**

### U3~,&_**clfli~1nz-1a::;l** uocument #1405654 Filed 11/16/2012 PAGE 10/29 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 Februarywithin 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,) Atthatpoint, 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 ofthe 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 orthe Section J35.293(b) flight checkthat 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 

### recurrenttraining

### 'cour~e that Tarascio took satisfi'ed 

### arequirement in Ventura's reduced 

### Initial
new hire traiuing program. (Tr. 226, 245-246.) Consequently, according to Ventura's witnesses, TarMcio completedthe Section 135.293 checking module ofhis 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 thathe "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 ofinitial orrecu!'l'ent\raining. 10/11/?li08 20· 35. 30L2942525 GREGORY S WINTON, ESQ

### ·~ uSc!-\ Case tt12-l4!:Jl Document #1405654 Filed: 11116/2012

i PAGE 11/29 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'srecords, Peck testified that Tarascio completed the first phase ofhis in-bouse ttalning and the first phase ofthe Section 135.293 checking**modt~le** on February 

### 3, 2005 (Tr, 279-280, 284), and completed the lastphase ofhis 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 ofthe test and check with Fraher]. (Tr. 284.) "And he is good fox the next twelve months which would be Maxch of '06**plu~** 

### athirty-day grace period." (Tr. 284-285.) Consequently, according to Peck, Tarasdo was eligible to fly until the end ofApril 2006, even though he had not completedthe 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 checkride should not be given before 

### apilothas completed all ofhis 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 priorto 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 offlights

- "proving runs""

- in that aircraft

23 Section ll9.33(c) provides in 

### J'll!i thlll

### "(e]ac~ appliclUJt for a certificate underthis pal'! and each applk,.nt for operations speclt1cations authorizing anew l<inct ofoperation that is subjectto 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 countthe time spent on a check dde as part ofthe 25 hours of required proving 

### runs. (Tr. 347.)

. I ' On rebuttal, Sees testified, based upon 

### his.review ofthe documentary evidence that had been introduced at the hearing 

### and that 

### was included in the eti:forcement package, that Tarascio served as apilotonflights !nApril2006 whenhe had notpassed 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) checkin february of2005. He received a partial checl<; in March of2005. 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 himthe Section !35.293(a) test and Section 135.293(b) flight checkunless Tarnscio hadcompleted all ofhis training. (Tr. 418, 475.) Consequently, he assumed that Tarascio had .completed 

### all ofhis 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 beencompleted and adding or**cherr~·picking** portions ofthat into the next month's training that's being conducteif.'' (Tr. 418.)

§ 121.163 or§ 135.145 ofthis chapter**shall_cond!l~t** proving le•ts as authorized by the Administrator duringthe application**proc~ss** for authorityto conduct operations under part 121 or part 135 ofthis**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 aflight crewmember ofa 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. Fraherfound 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 officerfor 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 ofthe case, the ALJ wrote, "The principal problem with the Respondent's theory is that it is not rooted in the language ofthe governing regulation." (Initial Decision at 9.) He wrote:

13

## ' PAGE 14/29 Page 17 of 33



### Nothing in the text of§ l35.293(a) supports the notion that arequirement for an annual test ofa crewmember's knowledge really**allow~** 

### a crewmemberto be tested once in a period of 15 

### months. Yet, that is 

### the result

### we would reach 

### ifthe**Re~pondent's** 

### theory 

### were adopted. Ifa crewmemberwere tested on 

### the first day ofthe year and completed the testing program on March 

### 31, for example, under the Respondent's version ofthe ''modular" hypothesis and glvi'\g effect

### to ti:Je :Respondent's thesis that only the last event inthe 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 ofthe following year. Indeed, 

### ifwe combine the :Respondent's view of how the "modular" hypothesis is applied with the notion ofaone-month "grace" period, the deadline would extend to the end ofApril 

### ofthe 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 arequirement for "annual" tests to allow thatresult constitl)tes quite a stretch. (Initial Decision at 9-10.) The AU

### also found that Ventura's theory qft):le 

### case was flawed because ithad failed to define the term ''module'' satisfactorily.' (Initial Decision at 1,0.) The AU wrote 

### that Ventura.

### cot~ld notrely upon any

### guidanc~;: in F.A..A:OrderNo. 8400.10 or Ventura's training manual "to



### . ' 

### ' change the unambiguous meaning ofaregulation." (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"iiff

### fJ The ALJ held that Tarascio was out oftime when he made the three flights 

### in April 2006, because "one-year-plus-a-grace-monthhiatus for testing under§ l35.293(a)(l) and (a)(4)-(8) had expired at 

### the end ofMarch 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 aheavy financial liability upon Ventura for several reasons, includil)g that "Venturamade 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'! B8/ll/20.B8 2B: 35 3B12942525 GREGORY S WINTON,ESQ ' U::OCA Case #12-1451 Document #1405654 Filed: 11/16/2012 PAGE 15/29 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, rejectingthe $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 ofJaw were made in accordancewith**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-monthrequil:ement ofSection 135,293, however, is modified by Section 135.301, which allows atest taken either the month before orthe 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 ofFAA OrderNo. 8400.10, the Orderthat implements the regulations, providedthat even 

### ifthe required reCUIT<)nttestis not taken during the base month the following year, there is no violation for flight activities that

---- 

### occru: within the grace month. This system oftesting is relatively stralghi forward in circumstances where the bru;e month or the "checking month" for aparticularpilot is already established

### ~cause the

[T]he FAA had published "guidance" that was virtually atwar wlth the tel>tofits regulation. While § 135.293 told the aviation community thatflight deck crewmembQrs must be trained and tested on an annual basis, another section oftho FAR
... went on to say thatthe annual test of tlight check ('llquirement can be fulfilled once every 13 months. Then, to add further ambiguity to the requirementfor annual testing, the FAA published § 10 ofOrderNo. 8400,JO, which appears to say thatthe requirementfor an annual test ofpiloting skills (meaning atest every 13 months) can be met in certain circ\llllstances by "adopt[in!l) a modular approach," perfonnlng the training, testing, or both, over athree-month**perio~** and then treating ali ofthe testing as iflt had been done on the l11$t day ofthatthree-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 cycleto some 15 months! 

### 15PAGE 16/29 Page 19 of 33



### detenuination ofwhen testing "is due" is a simple matter. The difficulty in 

### the instant caso; arises in connection with determining the checkingmonth for apilot, 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) ofFAA OrderNo. 8400.10, regarding the establishment ofthe "training/checking" month. Paragraph 603A(l) ofthat 

### 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 operatormay make a single record of the entire cun:iculum without noting when individual events occurred." Ifthe 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 overmore than the last month, which is what Ventura claims happened in this
case. Nor does the Ordermake 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 InspectorFraherduring 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 Venturawould be within regulatory

" Ventura's argumentthat Fraher administered an incomplete flight test because**~he** 

### did not have Tarascio perform 

### aV-1 cut Is frivolous because, as Inspector Sees explained, aV-1 cut is not required by 

### the FAA or by

### Venturn's training program. SeeRespondent's Exhibit 9, 

### at page 8-3, which Indicates that apilot must demonstrate atakeoffwith apowerplant {allure only in amultiengine aircraft butthis "may be

### tested by**altem~tive**

### means ifthe**p~rfonnance** 

### characteristics ofthe alroraft make this event hazardous,n 

### 16 ' iPAGE 17/29 Page 20 ot 33

compliance for any flights Tarascio flew as second in command through the end ofMarch ofthe following year, but would not be within the regulations for any flights, such as the ones in '


### . controversy here, in April ofthe 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 ofthe 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. lfthatwere the case, then Tarascio's flights in April were within the grace period. Itis not necessary to parse thepotential conflictbetween 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 ofthe same curriculum, and because even ifthey were part ofthe

### ~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 ofthe evidence supportS a

### determi~tion that February was Tarascio's checking month for those sections, and consequently,

### th~t the flights he made inApril 2006 were after the expiration ofthe eligibilityperiod for Section 135.293 testing, Ventura failed to offer sufficient proofthat 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 6weeks referred only to the time between the tests with Fraher and at SIMCOM. Ventura neverpresented a comprehensive explanation ofTarascib's training orwhen such training began. Ventura's only fact witness was tatascio, who testified that

# he 'tookthe test with Fraher on February 3, 2005,

17**0~/UJ--2ila8** 20' 35. 3012942525 GREGORY S WINTON,ESGI • u:::.-cf-\ Cas·e 1+12-14!:>1 uocument #1405654 Filed: 11116/2012 PAGE 18/29 Page 21 of 33



### after completingthe basic indoctrination tnrlning. 'Tarasclo, however, did not provide the date(s) ofhis 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 orreduced initial new hire training, depending upon how Venturakept its records aod how long it tookTarasc!o to complete that curriculum. IfVentura only recorded the date on which Tarascio completed the initial or reduced lnithd new hire curriculumbecause 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 afact witness, such 8$ the chiefpilot orthe chiefoperations 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 ofhiiwlong 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 ofa "training program" longer thao the threemonth period described in 

### FAA OrderNo. 8400.I0. Further, the preponderance ofthe 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 InspectorFraher. Ventura contends that Inspector Frllber gave Tarascio the February check rutd testbefore he complete'd his Part 135 training because he**0,~/11/2008** 20:35 3012942525 GREGORY S WINTON, ESQ 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 ofamanagement 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 thetiming ofthe 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 ifhe 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 ofanother 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 ofitslogic, depth and persuasiveness. 

### Griffin Avionics, FAA Order No. 2007-9, at 10, n. 16 (Au;ust 2, 2007); 

### Stambaugh'sAirService, FAA Order No, 2001-7 (May 16, 

### 200l);Metcalf, FAAOrderNo. 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 ofthtl 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 ofpart 121 or 135 ofthis 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]ll9ofthis chapter, when <;<Jnducting proving tests." l9 ' 

## !PAGE 20/29 Page 23 of 33

and when he began serving as apilotfor Ventura. More importantly, as the AU found, Peck l wasunable to explain satisfactorily what amodule 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 OrderNo. 8400.1 0 27 butPeck showed no familiarity with these definitions. In contrast, the description ofarnodulEU' training program, includJ.ng curriculums, segments, modules, elements and events, given by Inspector Sees was consistent withthe definitions ofthese terms inthe FAA Orders. (See Appendix III.) Further, Peck's testimony was unpersuasive in light ofhis incorrecttestimony thatproving flights are conducted under Part 91 and 

### that Tarascio's flight test with Fraher was incomplete. " In light ofthe above, it is held that Ventura failed to prove its affirmative defense that Tarascio hRd completed hisreduced initial new-hire training and testing within a 3"monthperiod,



# . ' 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, TheALJ Did NotErrlu Recelvlug Iuspector**See~** As An E,.pertWitness. Ventura argued thatthe 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. "Peckopined that Tarascio's flight test In February200S was incomplete beca,.se Tarascio did notperform aV-I cut, which "is where you Jose an engine right after the speed ofV -1" while "[y]ou are still on the runway." ('l'r. 283·284). However, aV"l cut is not**requit~d** underVentura's trai,ning manual, whicb provides that takeoffwith powerplant failure in amultlcngine aircraft "may be tested by alternative means ifthe performance characteri..tics ofthe aircraft make this eventhazardous.'' (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 PAGE 21/29 Page 24 of 33

In 

### Kumho, the Suprem<) Courtheld that trialjudges were required under Fed.R.Evid. 702 I to determine whether expert opinion testimony based upon 

### technical or otherspecialized knowledge was sufficiently reliable to 

### l'!dmit. Previously, in

### Daubertv. Merrell 

### Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), the Courthad held that trialjudges were required to perform such a "gatekeeping" function regarding·sc/entific expert testimony. The Courtin 

### ' Daubert gave examples offactors for trialjudges to consider including whether a theory or tech.nique can be tested, has been subjected to peer review and publication, has 

### ahigh known or potential error rate, and has been generally accepted withthe relevant community ofexperts. In 

### Kumho, the Court considered

### whethe~ the 

### Dcziibert factors should be considered by trialjudges regarding technical experts. The Courtheld that itcould "neitherrule out, nor rule in, for all cases and for all time the applicability ofthe factors mentioned in 

### Daubert

..." because )**~** '( I ! "[t]oo much depends upon the panicular circumstances ofthe 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 ofexperts are inapplicable, " Agency proceedings are governed by the Administrative Procedure Act (APA) and the



## .. agency's individual procedural rules. The APAprovides that "[a)ny 

### oral or documentary

29 Moreover, while the Federal Rules ofEvidence govern the admission ofevidence injury trials, ALJs in agency proceedings are not bound to follow those roles. Bennett v. NTSB, 66 F.3d 1130, J137 (IO'h Cir, 1995). "Agencies**rela>~** the roles ofevidencebecause they believe thatthey have the skill needed to handle evidence that might mislead ajury." 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 whetherto admit expert evidence, they ate not required to follow the t"st" for exclusion ofexgert 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 ofEvidence do not apply to the admission ofevidence in Social Security administrative proceedings" an<! because

### Daubert and Kumbo rest upon an interpretation ofRule 702, neither**decisio~.** govems the admlsoibility ofevidence before an ALJ In administrative proceedi11g in aSoolai 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.) · 

### ,, 21PAGE 22/29 Page 25 ol33

evidence may be received butthe agency as amatter ofpolicy shall provide for the exclusion of ittelevant, immat<:rial or unduly repetitiOUJj evidence." 5 U.S.C. § 556(d). Section 13.222(b) of theFAA'sRules ofPractice 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 aparty but shall exclude irrelevant, imtnaterial, or unduly repetitiou$ <:lVidence. Inspector Sees'stestimony 

### was not irrelevant, immaterial orunduly**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 ofthe regulation," it did not have fair warning ofthe rule's requirements. Hence, Ventura urges, the Administrator should reverse the ALJ's initial decision and dismiss this CEISe. (Appeal Briefat 23, 25.) Under the void for vagueness doctrine, 

# a law**~r** regulation !hat_doesnotfairly infonn !!

---**·-·---~** ' ·. ), ' ·' person ofwhat is commanded orprohibited orthat encolir&ges arbitrary and discriminatory

• i I \ ' enforcement is unconstitutional because it violates due process. 

### Trans StatesAirlines, Inc., FAA Order No. 2005-2 at 9-10 (March 9, 2005). When evaluating avoidforvagueness argument, a I court will require only a reason11ble degree ofcertainty, 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 Administratorhas

3

# °

Finally, Ventur& argued that "the circumstances ofhis [Sees's]late involvement in this case casts a large dark shadow over the logic and depth ofhis testimony," and, thereforo, "his testimony should be disregarded." (Appeal Briefat 31.) Such hyperbole is unpersuasive and unwi!Winted. While the FAA did not infonn Venturathat itplanned 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 priorto the hearing in April. (SeeTr. 479.) '• A.t'2.842525 GREGORY S_ WINTON, ESQ**e~/ll{S~A c~~W12-i'fJJ:**  vocument #1405654 f"iled: 11/16/2012



### ' PAGE 23/29 Page 26 of 33



### <!eclined to considercertain constitutional challenges, such as a challenge to the rules ofpractice " 

### as awhole, because aFederal Court ofAppeals is the appropriate forum for such appeals.'' 

### ContinentalAirlines, FAA Orde!' No. 1990-12 at 

### 6(Apri125, 1998). The Administrator has considered certain claims ofvagueness to ensure that aregulation**<:~llegedly** 

### violated is defined ' 

### with a sufficient degree ofspecificity so as to supportthe imposition of

### apunitive sanction. 

### AmericanAirlines, 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 veryplain and straightforward that 

### no operator may use a 

### pilotnor may apilot serve as 

### apilotfor an 

### operator 

### ifthey 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 

### ifthey 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

### AUmade 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 &trisk in April 2006 when Tarascio flew as second in command. The FAA argues on appeal that "[b)elngthat 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 orpropertyof

### another." 14 C.F.R. § 

### 9l.l3(a). Absent extraordinary circumstances, aresidual or derivative violation ofSection 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 ofan agendy rJgulation

... lie outsldo the cognizance of thaUgency." Howardv. FAA, 17 F.3d 1213,1 1218 (9" <:;ir. 1994). 

### 23• 'U'lW942520.. GREGORY S WINTON, ESQ**lil.?/ 11** **~®\ @lit~#l2:r'lol**  uocument#1405654 Flied: 1111612012 PAGE 24/29 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 ofSection 9!.13(a)); USAIR, Inc., 

### FAA Order No. 1992·70 (December 21, 1992) (operation ofan unalrworthy aircraft constitutes aviolation of 14 C.P.R. §§ 121.153(a)(2) and 

### aresidual violation ofSection 91.13); 

### Administrarorv. 

### 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 ofSection 9],

### 13); 

### Administrator v. Rogers, NTSB OrderEA-4428 (February 20, 1996) (operating 

### an aircraft wi01
an inaccurate load manifest coustituted a violation ofSection 135.63 and a residual violation of Section 9l.I3(a)). Proofofactual danger is not necessary to establish 

### aviolatiou ofSection 91.13(a) because that regulation prohibits auy carele.ss orireckless practice which is inhereutly dangerous and 

### has the potential 

### tojeopardize safety ofpersons 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'dsub 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 ofothers arises from 

### the finding that Ventura violated Section 135.293(a)(l) and (4r(8), and no specific evidence ofcarelessness or actual or potential danger was required. Permitting apilot 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 orhire constitutes a careless endangerment ofthe safety ofpassengers 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 

### ofa residual violation ofSection 91.1

## :i does not warrant an iucrease in the civil penaliy, 

### OoJet, 

### FAA Order No. 2012-5 at 15-16 (May 22, 2012),

24**25~** · GREGORY 5. WINTON, ESQ**[)B/lVS~A c!lil3ei'i#12-1~:fl** **4** uocument

### #1405654 Hied: 

### 11116/2012 PAGE 25/29 Page 28 of 33



### E. The$1.00 Assessed By 

### Tbe ALJIs 

### NotConsistentWith ApplicableLaw, Precedent, and Public**l'~;~licy.** !. The ALJ's Failm:e To ConsiderFAA Sanction Guidance Was Arbitrary And 

### An Abuse OfDiscretion. :Rogers testified that he had relied upon p11ragraph 

### Ci ofthe Sanction Guidance Table in FAA Order No. 2150.3A, Appendix 

### 4, part 

### 1. (Tr. 110-111.) The FAA soughtto introduce 

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

### ·rather than 

### au excerpt from FAA No, Order 2150.3A, which 

### was in effect atthe time of

### the flights in this case, The ALJ noted at the hearing that he co1.1ld have takenjudicial notice ofthe pertinentportion ofFAA Order No. 2150.3A. Instead, the ALJ gave the FAA leave to submit the pertinentportion from FAA Order No, 2l50.3A as 

### alate-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 offiling 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 thatthe 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 Underthe circumstances, 

### it was**arbitra~y** and an abuse ofdisc(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 ofthe 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%20215O.JA. 25

### 0!B/dJ~~**Clill$a5#12<lJilll51l!425~ocument** #140565f!REGDRY

### ~lfJWCJtlf:&/2012 E'GlGE 26/29 Page <:\! of 33



### which portions ofthat orderthe FAA considered relevll!lt. Importantly, Venturahad an opportunity to comment aboutthe 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 adisadvll!ltage by the submission ofthe excerpt

### as w attacbmentto 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 Administratorhad the authority to**ass~ss** 

### an $11,000 civil penalty per violatio11 ofthe 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 ofcivil penalty authority.) An appropriate civil penalty mustreflectthe totality ofthe circumstances sun:01mding the violations." The Administratorprovided policy guidance for agency**empl~{'(;'()ll!O** 

### foll_o_w regarding sanctions for different types ofviolations ofthe Federal aviation statute and the 

### FAR in the Compliance and Enforcement Order, FAA 

### OrderNo. 2150.3A. The 

### Sanction Guida11ce 'fable, COI:J!ained in Append!){ 4 

### ofthat order, was 

### designed to provide "general guidance for the exercise ofthe agency's prosecutoriai discretion"

# to "assure nationalconsistency in enforcingthe 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 ofthe violation; (3) the 

### person's degree ofculpability; (4) the person's history ofviolations, ifany; (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 asjustice may**req~ire.** Warbelow'sAir 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 

### OrderNo. 2000·]6 (August 

### 8, 2000),petltlonfor review denied, Warbelow 'sAir Ventur?s v. FA.A., No. 00-70423 (91 hCir, September 20, 2001). 

### 26• 42525. C>REGORY S WINTON, ESQ**1'})!/ll(j~~ ~s~#12-l045!**  Document#1405654 Filed: 11/16/2012 PAGE 27/29 Page 30 of 33



### Guidance Table in FAA 

### Order 2150.3A, 

### Appendix 4, 

### recommends aminimum, moderate a!ldlor maximum range sanctions for diffel:o;nt types ofviolations committed by air carriers. When the I FAA 

### formulated 

### these sanctionranges for different types ofviolations, the 

### agency considered the nature, extent and gravity ofeach general type 

### ofviolation**~:~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 

### OrderNo. 2008-11 

### at 12 

### (November 6, 2008); Schultz, 

### FAA OrderNo. 1989-5 

### at 12 

### (November 13, 1989). 

### The FAA later modified these ranges through the issuance ofthe Compliance/Enforcement :Bulletin No. 

### 92-1, included,in Appendix 

### 1ofFAA 

### OrderNo. 2150.3A. The guidelines in Compliance/EnforcementBulletin 92·1 

### were issued as "ameans of placing a relatively equivalentdeterrent effect on each 

### air carrier·that violates the same FAR, by



### . considering the size ofthe 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 ofthe 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 ofan 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 ofairorllft, 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 Icanier (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 smallestPart 135 air carriers) was $4,000 to $11,000 per violation. 27 'PAGE 28/29 Page 31 of 33

applythe xnaximuro civil penalty range for a Group IV operator. At the tixne ofthese vlolations, the maximum civil penaltyrange 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 soughtby'the FAA is consistent with the sanction guidance in •, effect atthe time for Ventura's vlolations ofSections l35.293(a)(IH4)-(8) on three flights. No additional penalty is appropriate for the violations ofSection 

### 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 ifan AUassesses a civil penalty that is not consistent with agency sanction policy, the**Admini~trator** on appeal may reverse the AU, 

### Folsom'sAirService, FAA Order 2008-11 at 14. The ALJ gave several xeasons for assessing only a nominal $1.00 civil penalty. The ALJ explained that "inthe final analysis, aswe 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 ofit."

------- ------·-·-·------ (Initial Decision 

### at 15.) However, Ventura introduced no evidence to prove that any member 

### of ' ' its man!lgement l.'elied upon 

### FAA OrderNo. 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 ofSections 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, whenj1.1stifying the $1.00 civil penalty, that It was significant th11t Tarascio was "at all relevanttixnes knowledgeable and skillful enough to pass all of**th~:** tests set

28. GREGORY S-WINJONiESQ ntlliLIOO!!'\**~s~#123p4S'!4252e>ocurnent#140565'1.** riled: 1 /16/2012 PAGE 29/29 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 atbest,justifies apenalty atthe lower end ofthe appropriate penalty range. The $15,000 civil penalty amounts 

### to 11 

### $5,000 civil penalty for the violations on each ofthree 

### flights, and consequently, is at the low end ofthe 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 ofthe periodic testing requirement which is to ensure that apilot retains the \mowledge th11t he

..orshe needs to fly persons 

### orproperty for compensation or hire before flying. The ALJ alsojustified the imposition ofanominal $1.00 civil penalty on the fact that the FAA 

### did I)Ot introduce evidence ofprior violations by 

### Ventura. The sanction ranges set forth in FAA 

### guidance, however, reflect the appwpriate civil penalties for persons without ahistory of violations. FAA 

### OrderNo. 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 FederalAviation Administration

36**Thi~** ordershall be considered an order assessing civil penalty unleos Respondent tiles a petition for review within 60 days ofservice ofthis decision with the U.S. Court 

### ofAppeals for the District ofColumbia Circuit

### or theU,S. court ofappeals for the circuit in which the respondent resides or has 

### its principal place ofbusiness, 

### 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 offinal 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 ofthe foregoing_ Petition for Review addressedto: Christian Lewerenz, Esq. Office ofAssistant ChiefCounsel 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 LawFirm One Research Court, Suite 450 Rockville, MD 20850 T<;Jl: 301 294 8550 · Fax: 301 294 2525 

### Counsel for Petitioner

3 -·-··-**---------------------~~~~~-**