01/2G/2010 16:48 FAX 2024935U2 FAA + DMS §1001/020 

UNITT-D STATES OF AMtRlCA 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVlA'^TlON ADMINISTRATION 

WASHINGTON, D.C. 

O ' ' 

i \H 2 2 2010 

•HEAR?MG DOCKET 

TN THE MATTER o r 

VENTURA AIR SERVlCl-S, INC. 

FAA Docket No- CP08EA0008 

(Civil Penalty Action) 

DMS NO. FAA-2008-0505 

Honorable Isaac D. Benkin 

Administrative Law Judge 

RESPONDENT/APPELLEE'S REPLY BRIEF 

COMES NOW, Vuntura Air Services, Inc. (hereinafter "Ventura"), 

Respondent/Appellee herein, by and through undersigned counsel, and hereby submiis 

the Jbllowing Brief in reply to the Complainant's Appeal oJ'the Administrative Law 

Judge's Initial Decision in this matter served on September 24, 2009'. 

In .support thereof, Ventura states the following: 

ISSUES ON APPEAL 

L IF THE LAW JUDGE'S FINDING OF VIOLATION IS UPHELD, THE 

CIVIL PENALTY ASSESSMENT OF $1,00 WAS IN ACCORDANCE 

WITH APPLICABLE LAW, PRECEDENT, AND PUBLIC POLICY. 

' Respondent, Ventura, also appealed the law judge's initial decision and filed an Appeal 

Brief on December 17, 2009. In its Appeal Brief, Ventura challenged the law judge's 

fmding of violation and civil penalty assessment oF$l .00. Among other things, Ventura 

challenged the constitutionality of the "ambiguous regulatory situation" created by the 

Complainant, FAA. Thus, Ventura hereby incorporates ifs Appeal Brief by reference. 

The ai'giunents made herein, are provided in the alternative and by no means are intended 

to abandon the arguments in its Appeal Brief 
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II. THE LAW JU UGE DID NOT ERR IN REFUSING TO FIND THAT 

VENTURA OPERATED AN AIRCRAFT IN A CARELESS OR 

RECKLESS MANNER IN VIOLATION OF 14 CE.R §9H3(a). 

PROCEDURAL IHSTORY 

On September 24, 2009, the Honorable Isaac D. Benkin, Administrative Law 

-ludge (ALJ), i.ssued a written initial decision in this matter. The issue in this ease is 

whether a second-in-command pilot employed by Respondent, Ventura Air Services 

(hereinafter "Ventura"), a 14 C.F.R. Part 135 air carrier, was fully qualified in April 

2006, when he served in that capacity as a .second-in-command pilot during three (3) 

llighl operations carrying passengers for hire. The Complainant. Federal Aviation 

Administi-ation (hereinafter "FAA"), charged that Nicholas Tarascio, the pilot in 

question, was not fully qualified because he had not timely and .successfully completed 

ceitain oral or written knowledge tests thai are required under § 135.29.'^(a) of the Federal 

Aviation Regulations (FAR). 

THE HEARING 

The two-day hearing took place in Islip, New York on April 7-8, 2009, during 

which the FAA introduced "virtually no evidence into the record on the subject of 

sanction." Initial decision at 13. As a result, the record is "devoid of any evidence in 

support of the $1.5,000 claimed by the FAA, or any other amoimt, as appropriate civil 

penalty." Initial decision at 14. 

WRITTEN INITIAL DECISION 

By written initial decision served on September 24, 2009, the Honorable Isaac D. 

fcjenkin held that '"the record of this ca.se makes it abundantly clear that Ventura, in 

deciding how to deal with Capt. Tarascio's qualifications, was faced with an ambiguous 
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regulatory situation." Initial decision at 14. Accordingly, he concluded that "as a 

technical matter, Captain Tarascio wa.s out of time when he made the three flights ir 

question in April of 2006.'" Initial decision at 1.'^. 

The ALJ also found that "'the gravity of Ventura's violation seems rather low, in 

that the safety of the public was never at risk during the few days early in April 200<"> 

when Capt. Tarascio acted as second-in-command of three of Ventura's flights." 

fherelbre, he held that a "nominal civil penalty" in the amount of $1.00 "will .«;erve the 

interests of justice." Initial decision at 15. 

THE COMPLAINANTS APPEAL 

On appeal, the Complainant only challenges the limited issues of (1) sanction; and 

(2) the ALJ's failure to find that Ventura violated 14 C.F.K. §91.13(a). However, in 

accordance with 14 C.F.R. §13.233, the Complainant failed to raise any proper objections 

to the ALJ's factual fmdings and conclusions as follows: 

1. WAS EACH FINDING OF FACT SUPPORTED BY A PREPONDERANCE OF 

RELIABLE, PROBATIVE, AND SUBSTANTIAL EVIDENCE? 

2. WAS EACH CONCLUSION OF I AW MADE IN ACCORDANCE WITH I HE 

APPLICABLE LAW, PRECEDENT, AND POLICY? 

3. DID THE ADMINISTRATIVE LAW JUDGE COMMIT PRFJT.Ii:)lClAL 

ERRORS THAT SUPPORT THE APPEAL? 

As result, all further challenges to the initial decision by the Complainant have 

been forever waived. According to Rule 13.233(i), if a party fails to object to any alleged 

error regarding the proceeding.s in an appeal brief, the party waives any objection to the 

alleged error. The FAA deeisioimiaker is not required to consider any objection in an 

appeal brief if a party'.s objection is based on evidence contained on the record and the 

party does not specifically refer to the pertinent evidence from the record in the brief. 
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Complainant has not adequately objected to the following lindings by the ALJ 

and therefore, such fmdings remain unchallenged and any objections thereto arc forever 

waived. See 14 C.F.R. §13.233(i). 

UNCHALLENGED FINDINGS BY THE LAW JUDGE 

1. The record is devoid of e-vidance in support of the $15,000 claimed by the FAA, 

or any oilier amount, as the appropriate civil penalty. Initial decision at 14. 

2. llie record of this case makes it abundantly clear that Ventura, in deciding how to 

deal with Capt. Tarascio''s qualifications, was faced with an cimbiguous regvialory 

Hiluiiiion. Initial decision at 14. 

3. In these circumstances it seems unfair and inequitable to fasten a heavy financial 

liability upon Ventura because it read the varioiLS "guidance" documents 

published and approved by the FAA in a manner that seemed to require the least 

amount of new training and testing of Capt. Tarascio that could be defended imder 

the existing authorities. Initial decision at 14-15 

4. Ventura can hardly be faulted for having to guess; that is what the regulatory 

atmosphere required of it. Initial decision at 15. 

5. Capt. Tarascio wa.s at all relevant times knowledgeable and skillful enough to pass 

all of the tests .set out in § 135.293(a). 

6. The gravity of Ventura's violation seems rather low, in ihat the safety oflht 

public was never ai rink during the first lew days early in April 2006 when C'apt. 

Tarascio acied as second-in-command of three of Ventura's flights. Initial 

decisional 15. 
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7. Ventura's violation was neither extraordinarily blameworthy, intentional nor 

deliberate. Initial decisional 15. 

8. A nominal civil penalty will serve the interests of justice. Initial decision at 15. 

ARGUMENT 

1. IF THE LAW .JUDGE'S FINDING OF VIOLATION IS UPHELD, THE 

CIVIL PENALTY ASSESSMENT OF Sl.OO WAS IN ACCORDANCE 

WITH APPLICABLE LAW, PRECEDENT, AND PUBLIC POLICY. 

Ventura contends that the regulation at issue (14 C.F.R. §155.293(a)) is void for 

vagueness and in violation of the Due Process Clause of the U.S. Constitution. 

Therefore, the law judge's initial decision must be rcvcr.sed and the case dismissed. See 

Heath v. SFXl, 2009 U.S. App. LEXIS 24128 at +53-55 (See Respondent's Appeal Brief). 

Nevertheless, if the Administrator upholds the law judge's llnding ofviolaiion 

concerning 14 C.F.R. §135.293(a) (1) and (4)-(8), the AfJ's civil penalty assessment of 

$1.00 must not be disturbedA. Complainant Failed to Offer the Sanction Guidance into the Record 

or to Ask the Law Judge to Take Judicial Notice of it. 

During the hearing. Complainant failed to introduce any evidence to .support the 

proposed .sanction amount of $15,000. As a result, the law judge properly found that "the 

record is devoid of evidence in support of the $15,000 claimed by the FAA, or any oilier 

amount, as the appropriate civil penally." Initial decision at 14. In fact, the only 

testimony regarding sanction came from Inspector Mark Rogers, who stated the 

following during the Complainant's case-in-chief: 

THE COURT: Let's start out this way. Inspector, you didn't choose the sanction 

here did you? 

THE WITNESS: Not the $15,000 amount, no, sir. 

Tr. 106. 
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Moreover, the Complainant failed lo introduce into evidence the FAA Order 

2150.3A, Sanction Guidance Table. As a result, the ALT stated the following in his 

initial decision: 

The FAA has introduced virtually no evidence into the record on the subject of 

the sanction. We also know that the agency's complaint sought a civil penalty of 

$15,000 based on the charge that Ventura had violated both subsection (a) and 

subsection (b) of § 135.293 of the FAR. The charge of violating sub.section (b), 

wliich deals with requirements for crewmember training was withdrawn, leaving 

the Respondent charged with violating only subsection (a), which deals with 

testing of erewmembers. Nevertheless, the amount of the penahy the FAA sought 

was not reduced. When a.sked about this apparent discrepancy, FAA witness 

Rogers, the person who initiated the case against Ventura, said that he had 

recommended that tiie claim against the carrier should amount to $ 33,000, or 

$11,000 per violation. He sought to justify this by pointing lo the FAA's Sanction 

Guidance, Order No. 2150.3B- It turned out, however, that Inspector Rogers was 

working with a version of Order No. 2150 that did not exist when the alleged 

violations took place. Hence, the version that the FAA had proffered for the 

record was not received in evidence. 

At the time this rather embarra.s.sing disclosure occurred, T offered to allow 

counsel for the Complainant to submit the correct version of Order No. 2150, or 

whatever sanction guidance the FAA had in force in April 2006, as a late-filed 

exhibit or to entertain a request to take judicial notice of its contents. He agreed to 

locate the document and provide it for the record on that basis. But he never did 

so. 

As a result, the record is devoid of evidence in support of the $15, t)()0 claimed by 

the FAA. or any other amount, as the appropriate civil penalty. 

hiitial Decision; 2009 FAA LEXIS 342 at 30-31 (emphasis added). 

It appears that Agency counsel is now attempting to challenge the Al ..Fs decision 

as a result of his own failure to offer evidence of sanction into the record during the 

hearing. Nevertheless, the record is clear that Complainant has not met its burden of 

proof by a preponderance of reliable, probative, and substantial evidence regarding the 

proposed $15,000 sanction, as required pursuant to 14 C.F.R. §13.223. fhcreforc, the 

Complainant's appeal must be denied. 
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B. On Appeal, Complainant May Not Properly Fault The Law Judge For 

Failing to Follow the Agency's Sanction Guidance, 

In -Support of its appeal. Complainant relies upon the Administrator's holding 

from In the Matter ofWarbelow 's Air Ventures, Inc., FAA Order No. 2000-3 (2000) to 

support its position that "the Adminisirator has both the authority and duty to impose the 

agency's [sanction] policy on appeal." See Complainant's Brief at 14. However, 

Complainant's reliance upon the holding in Warhelow's Air Ventures, Inc. is grossly 

misplaced, as it does not support the appeal. 

To the contrary, the holding in Warbelow 'sAir Venture.^, Inc. supports Ventura's 

position that if the fmding of violation is upheld, the AU's assessment of a $1.00 civil 

penalty should likewise be upheld. 

In Warbelow's Air Ventures, Inc., the Administrator held the following: 

Complainant must justify to the law judge the amount of the civil penalty it seeks. 

(See In the Matter of Luxemburg^ FAA Order No. 1994-18 (June 22, 1994), 

stating that Complainant bore the burden of justifying the amount of the civil 

penalty it sought and citing 14 C.F.R. §13.224(a), which provides that, except in 

the case of an aflin-native defense, the burden of proof is on the agency.) Here, 

Complainant failed to explain to the law judge, either ilirough witnesses or in its 

written closing argument, exactly how it used its sanction guidance to arrive at a 

figure of S20,000. 

Specifically, Complainant failed to explain to the law judge why, according to the 

Sanction Guidance Table, the fuel pump violations dcsei-ved a maximum civil 

penally, o\- what the minimum, moderate, and maximum ranges of a maximum 

civil penalty were for an air carrier the si/e of Warbelow's. Even on appeal, 

Complainant has not explained why the fuel pump violations represent a "Nonconformity which has an adverse effect (actual or potential) on safe operation," 

(FAA Order No. 2150.3A, Appendix 4, 1,L.3) which ordinarily calls for a 

maximum civil penalty, rather than a "Non-conformity which may have an 

adverse effect on safety of operation," (FAA Order No. 2150.3A, Appendix 4, 

I.L.2), wliich ordinarily calls for a moderate civil penalty. 
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Additionally, Complainant did not explain to the law judge that its sanction 

guidance provides for penalties proportional to the size of an air carrier, or that 

Warbelow's is a "Group 111" carrier, why, and what that means. Nor did 

Complainant explain to the law judge that its sanction guidance provides for a cap 

on civil penalties for violations involving multiple flights, or tell the law judge 

what the cap was in this case. 

By failing lo explain its proposed sanction adequately. Complainant in effect was 

asking the law judge simply to trust Complainant that its proposed sanction was 

appropriate. On appeal. Complainant may not properly fault the law judge for 

failing to follow the agency's sanction guidance, when Complainant failed to offer 

the sanction guidance into the record or to ask the law judge to take judicial notice 

of it. 

In the Matter ofWarbelow's Air Ventures. Inc., 2000 FAA LEXIS 300. 1 -72 (FAA 2000) 

at 30-32. 

Likewise, in the present case, Complainant did not explain to the law judge that 

its sanction guidance provides for penalties proportional to the size of an air carrier, or 

that Ventura is a "Group IV" carrier, why, and what that means. Nor did Complainant 

explain to the law judge that its sanction guidance provides for a cap on civil penalties for 

violations involving multiple flights, or tell the law judge what the cap was in this case. 

Thus. Complainant may not, on appeal, properly fault the law judge for failing to 

follow the agency's sanction guidance, when Complainant failed to offer the sanction 

guidance into the record or to ask the law judge to take judicial notice of it. Accordingly, 

the Complainant's appeal must be denied. 

C. The .$1.00 Civil Penalty is Appropriate in This Case in Light of the 

Lack Evidence in the Record »nd the Totality of the Circumstances. 

In In the Matter of Eastern Air Center, Inc., FAA Order No. 2008-3 (2008); 2008 

F AA LEXIS 391, Complainant appealed the ALJ's written initial decision. In that case, 

the AL.T held that Respondent, Eastern Air Center ("Eastern"), violated 14 C.F.R. §§ 

91.203(a) (I) and 135.25(a) (1) by operating 24 charter flights without having a current 
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and appropriate airworthiness certilicale. However, similar to the present ca.se, the \ U 

rejected the proposed $6,000 civil penally sought by Complainant. In.stead, he assessed a 

$2,400 civil penalty. 

On appeal. Complainant argued that the ALJ's asse.s.'iment of a $2,400 civil 

penalty was, inter alia^ contrary to the FAA's sanction guidance policy. 

Ihe Administrator granted the Complalnanfs appeal, but found that the $6,000 civil 

penally was too high, and instead, assessed a .$1,500 civil penalty. 

Unhke the present ca.se, the facts in Eastern Air Center, Inc., were relatively 

simple, 2008 FAA LEXIS 391 at 4. Eastern applied for and was issued a new special 

registration number for its aircraft. Subsequently, the new registration number was 

painted on the aircraft. However, during a ramp inspection, an FAA inspector noticed that 

the aircraft registration ccrliricale reflected the newly assigned number, while the 

airworthiness certificate rellected the formerly assigned registration number. As a result, 

the carrier was charged with operation of an aircraft without an appropriate and current 

airworthiness certificate, 

in his written initial decision, the ALJ held that Eastern violated Sections 

91.203(a)(1) and 135.25(a)(1). Based on his review of the flight log, the AlJ concluded 

that Eastern flew 24 flight segments in violation of the regulations. Regarding sanction, 

the Al J held that the S6,000 penalty sought by the Complainant was too high and too 

arbitrary a figure to be appropriate in that ease. He explained that he considered a penalty 

of $100 per flight as appropriate as it should provide .sufficient 'sting' to the Re.spondent 

and vindicate the public interest in strict compliance with the FARs. As a result, he 

a.ssesscd a $2,400 civil penalty against Eastern. 2008 FAA LEXIS 391 at 7. 
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The Complainant argued on appeal that the AlJ's sanction reduction was arbitrary 

and capricious because it was inconsistent with the FAA's sanction guidance and 

unsupported by the evidence in the record. In response, the Administrator stated the 

following; 

Preliminarily, it should he noted that technically, the ALJ did not "reduce" the 

.«;anction because until the ALJ Lssued the initial decision, no civil penalty had 

been assessed, ihe complaint is not an order but a statement of the alleged 

violations of the Federal aviation statute or the Federal hazardous materials 

transportation statute. 14 C.F.R. § 13.202 (definition of complaint.) The sanction 

soughl in the complaint is no more than a proposaJ or recommendation to the 

AlJ. 

Under 14 C.F.R. §13.224, Complainant has the burden of proving the 

appropriateness of the sanction that it seeks. In the Matter of Toyota Motor Sales, 

USA, Inc., FAA Order No. 94-28 at 6-7 (September 30, 1994). 

In the Matter ofEa.slern Air Center, Inc., 2008 FAA LEXIS 391 at 13. 

Furthermore, with regard to sanction, the Administrator in Eastern stated the 

following: 

[FlAA sanction guidance does not provide for a $ 100 civil penalty against an air 

carrier for a single violation arising from flying without a curtent and appropniate 

aiiworlhiness certificate. Finally, under FAA sanction guidance, the computation 

of a civil penalty should not be done by multiplying the sanction for a single 

violation by the number of flights, instead, "judgment should be exercised in 

determining the seriousness of the violations and applying a sanction that will 

deter future violations by the violator or others similarly situated, i.e., the totality 

ofthc circumstances surrounding the ca.se should be considered...." Compliance 

and Enforcement Program, FAA Order No. 2150.3 A, Appendix 4 at 1 -2. 

In the Matter of Eastern Air Center, Inc., 2008 FAA LEXIS 391 at 13-14. 

The Administrator in Eastern noted that the FAA had provided guidance 

regarding the meaning of "minimum" civil penalties for different size operators in its 

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Compliance/Enforcement Kullclin No. 92-1. 'Ihe Bulletin establishes a system for 

classifying air carriers by size, and divides air carriers into four different si/e groups. The 

larger air carriers are included in Groups I and 11; the smaller operators are included in 

Groups HI and IV. Further, the Bulletin provides maximum, moderate and minimum 

.sanction ranges for each air carrier group. 

With regard to Complianee/Hnforcement Bulletin No. 92-1, the Administrator in 

Eastern stated the following: 

In the introduction to the Sanction Guidance Table, the !• AA sets out minimum, 

moderate and maximum range sanctions for violations commitied by air carriers, 

FAA Order No. 2150.3 A, Appendix 4 at 3. I'hese ranges do not take into account 

the differences in the siiics of air cartiers. In Compliance/Enforcement Bulletin 

No. 92-1, issued on January 16, 1992, the FAA amended the sanction ranges for 

single violations committed by air carriers provided in the Sanction Guidance 

Table's introduction. The amendment was designed as a "mean.s of placing a 

relatively equivalent deterrent effect on each air cartier that violates the same 

FAR, by considering the size of the carrier in determining an appropriate amtiunt 

of civil penalty." Compliance/Enforcement Bulletin No. 92-1, FAA Order No, 

2150.3A, Appendix 1, at 103. 

Ihis Bulletin was not introduced or referred to at the hearing or in any of the 

briefs, and the ALJ did not mention it in his decision. Regardless, this bulletin is 

germane to the is.sues involved in this case, and the Administrator may rely upon 

it. 

In the Matter ofEa-;tern Air Center, Inc., 2008 FAA LEXIS 391 at 16-17. 

For puiposes of applying Bulleiin No. 92-rs guidance, Eastern was regarded as a 

Group IV carrier. Id. Under FAA Bulletin No. 92-1, the minimum sanction range for a 

single violation for Group IV operators is $500 to $2,000. In. Eastern a separate violation 

occurred on each ofthc 32 flights. However, because the Administrator found that the 

violations did not create a hazard to aviation safety, there was no need to assess a 

minimum range sanction for each of the 32 flights. Thus, the Administrator held as 

follows: 

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Indeed, due to the lack of impact on safely, a sanction at the higher end of the 

range for a single, inadvertent violation will have sufficient punitive effect and 

should deter Eastern and others from committing similar violations in the ftilure. 

A $1,500 civil penalty is appropriate in this case in light of agency sanction 

policy, the evidence in the record, and the totality of ihe circumstances, i.e., 

nature of the violation (operational violation), multiple llighls, no hayard posed, 

and Eastern's size. 

In the Matter of Eastern Air Center, Inc., 2008 FAA LEXIS 391 at 17-18 (emphasis 

added). 

Likewise, in the case at Bar, the Complainant has acknowledged that "for 

purposes of applying Bulletin No. 92-1 's guidance in this case, Respondent [Ventura] 

should be regarded as a Group IV earner." See Complainanfs Brief at 15. Thus, similar 

to the holding in Eastern. Bulletin No. 92-1, FAA Order No. 2150.3A, is germane to the 

issues involved and therefore, the Administrator may rely upon it. However, the 

Administrator must consider the lack of evidence in the record concerning sanction, us 

well as the totality ofthc circumstance.^, i.e., "technical" nature of the violation 

(ambiguous regulatory situation), no hazard posed, and Ventura's si/e. 

With regard lo the nature of the violation, the Al.J held as follows: 

It is also significant, in my view, that Capt. Tarascio was at all relevant times 

knowledgeable and skillful enough to pass all of the tests set out in §135.293(a). 

We have in the record of this case all of this aimian's training records. They show, 

without exception, that he never failed to pass a test of his knowledge and flying 

skills. His prior experience had equipped him with that knowledge and tho.se 

skills and, so far as the record shows, he never lost them. Hence, the gravity of 

Ventura's violation .seems rather low, in that the safety of the public was never at 

risk during the few days early in April 2006 when Capt. Tarascio acted as secondin-command of three of Ventura's flights. 

Initial Decision. 2009 FAA LEXIS 342 at 33-34. 

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Therefore, since the ALJ in the present case held that the safety of the public was 

never at risk as a result of ihe inadvertent regulatory violation by Ventura, the $1.00 civil 

penalty mu.st not be disturbed even if a finding of violation is affirmed. 

Notwith.'itandine the above, Ventura still contends that the ALJ erred in assessing 

a $1.00 civil penalty for the "technical" violation of an "ambiguous regulatory situation" 

which is constitutionally void for vagueness, fherelbre, Complainant's appeal must be 

denied. 

Nevertheless, if Complainant's appeal is granted, the case should be remanded to 

the ALJ for consideration of an appropriate sanction in light of the Administrator's 

holding \nln the Matter of Eastern Air Center, Inc., FAA Order No. 2008-3 (2008); 2008 

FAA LEXIS 391. 

11. THE LAW JUDGE DID NOT ERR IN REFUSING TO FIND THAT 

VENTURA OPERATED AN AIRCRAFT IN A CARELESS OR 

RECiCLESS MANNER IN VTOLATIOIN OF 14 C.F.R §9LI3(a). 

Complainant's objection to the ALJ's decision regarding his reftisal to find a 

violation of 14 C.I-.R. §91.13(a) consists of no more than one page of a lawyer's 

argument, lacking any basis in fact or law, and which includes one citation inapposite to 

the present case. As a result. Complainant's appeal concerning the AlJ's decision 

regarding §91.13(a) does not satisfy the requirements of Rule 13.233. Nevertheles.s, the 

ALJ's refusal to lind a violation of §91.13(a) was supported by a preponderance of 

reliable, probative, and substantial evidence and was made in accordance with the 

applicable law, precedent, and policy. 

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In Ihe Matter of Ace Pilot Training, FAA Order No. 2005-12 (2005); 2005 FAA 

LEXIS 699, the ALT declined to fmd a violation of §91.13(a) because there was no 

evidence of carelessness or reckle.s.sness. In that case, the Administrator granted the 

Complainant's appeal and stated the following: 

As for the alleged violations involving 14 C.F.R, § 91.13(a) (operating in a 

careless or reckless manner), the ALJ declined to find this violation because there 

was no evidence, other than that of AD-nonconipliance, of carelessness or 

recklessness. The ALJ cited In the Matter ofCarr, FAA Order No. 1998-2 at 11-

12 (March 12, 1998), for the proposition that finding multiple violations for the 

same offense would constitute '"piling on' [that j .should be avoided except under 

the most egregious circumstances." (Initial Decision at 4.) ITie Carr decision., 

however, involved whether violations of separate regulations counted for sanction 

purposes. FAA Order No. 1998-2 al 11-12. The decision .stated; "It would be a 

tieiion to say that Mr. Carr did not violate each and every regulation ... alleged in 

the complaint... However, there is no reason to count each separately for sanction 

purposes in this non-egregious case ...." Id. at 11 n.l4. 

The ALJ overlooked the "ample legal authority ... indicating that absent 

extraordinary circumstances, careless or reckless operation of an aircraft follows 

as a residual violation [once the agency establishes operation of an unairworthy 

aircraft j. " In the Matter ofUSAir. Inc., FAA Order No. 1992-70 at 6 (December 

21, 1992). The record in this case does not show any extraordinary circum.stances 

justifying a finding that Ace did not violate 14 C.F.R. §91.13(a) as well. Indeed, 

Ace acted in a careless or reckless maimer in this ease, jeopardizing the safety of 

both its student pilots and others by operating its aircraft without complying with 

ADs. 

In the Matter of Ace Pilot Training, 2005 FAA LEXIS 699 at 13-14. 

Similarly, in the present case, the AlJ declined to lind a violation of §91.13(a) by 

Ventura because there was no evidence of any careless or reckless operation of an aircraft 

so as to endanger the life or property of another. See 14 C.F.R. §91.13(a). 

Unlike/^ce Pilot Training. Complainant in the present ca.se did not introduce any 

evidence into the record that a charge of careless or reckless operation of an aircraft 

follow.s as a residual violation under the present extraordinary circumstances. Much to 

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the contrary, the unique circumstances in the present case dictate that a finding of 

violation concerning §91.13(a) should not follow as a residual violation. 

In fact, the ALJ found the facts of the present case to be extraordinary when he 

stated that "this is one of the rare cases in which the last criterion i.s, in my judgment, the 

most significant. The record of tliis ca.se makes it abundantly cleai- that Ventura, in 

deciding how to deal with Capt. Tarascio's qualifications, wa.s faced with an ambigtious 

regulatory situation." and that "Ventura can hardly be faulted for having to guess; that is 

what the regulatory atmosphere required of it." Initial decision at 14-15. If that does not 

define extraordinary circumstances resulting in a "technical" finding ofviolaiion, nothing 

else will. 

Thus, this is not similar to a situation in which the regulatory requirements wore 

clear and unambiguous as in the case relied upon by the Complainant in its Appeal Brief. 

See In the Matter of Air Solutions, LLC and Air Solutions Group, Inc., FAA Order No. 

2009-1 (2009). 

Therefore, Complainant's appeal regarding a violation of §91.13(a) must be 

denied. 

14 C.F.R. §9L13(a) i.s Not Residual to the Finding of an Inadvertent 

Technical Violation Concernin]v an Ambiguous Regulatory Situation. 

In support of its appeaL Complainant relies upon the holding from Air Solutions, 

LLC and Air Solutions Group, Inc., FAA Order No. 2009-1 (2009), for the proposition 

that "by virtue of its using an unqualified pilot in three air carrier operations, Respondent 

was careless in operating an aircraft so as to endanger tlie lives or property of others, and 

as a re.suh, there is also a violation of 14 C.F.R. §91.13.'' See Complainant's Brief at 18. 

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However, Complainant's reliance upon Air Solutions, IXC and Air Solutions 

Group, Inc. is grossly mi.splaced as that holding is wholly inapplicable to the facts of the 

present case. Specifically, xn Air Solutions. LLC and Air Solutions Group, Inc. it was 

undi.sputed that the two flights in question were charter flights operated contrary to the 

regulations. Rather, the issue was limited to the question concerning which of the two 

entities operated the flights. In that case. Air Solutions, LLC acknowledged that it was 

the operator of the flights in question. Based upon the admissions and other evidence, the 

FAA proved its ca.se by a ''preponderance of reliable, suKstantiaJ, and probative 

evidence." In the Matter of Air Solutiotrs. LLC, F/\A Order No. 2009-1 ai 8. In thai case, 

$1LOOO was the maximum civil penally per violation, because at issue were ''[v]iolations 

of FAA .statute or regulations by a person operating an aircraft for the transportation of 

passengers or property for compensation." Id. at 9-10. The FAA multiplied the four 

violation.^ by $11,000 (which was the maximum civil penalty per violation), in order lo 

arrive at $44,000, the amount sought at the hearing. With regard to sanction, the 

Administrator held as follows: 

The FAA'S requested civil penalty is reasonable under all the circumstances, 

particularly the gravity of the offenses. Operating as an air carrier without a 

certificate and operating with unqualified erewmembers arc serious violationsIn the Matter of Air Solutions, LLC. FAA Order 2009-1 at 10. 

In the case at Bar, the FAA's proposed civil penalty against Ventura (i.e.. 

$15,000) was not reasonable under all the circumstances, Unlike Air Solution.^, I.l.,C, 

Ventura neither operated as an air carrier without a certificate, nor operated with a 

crewmember who was otherwise not qualified under 14 C.F.R. Part 135. Ventura was 

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only found to have used a seeond-in-command pilot who had not been administered a 

written or oral knowledge test within the previous 12 nionths. 

Specifically, unlike Air Solutions, LLC, Ventura was a certificated air carrier 

authorized to conduct pas.senger cartying operations for compensation or liirc pursuant to 

14 C-l'.R. Part 135, Moreover, at all times relevant, Capt. Tarascio was fully qualified to 

operate as a second-in-command piloi in accordance 14 C.F.R. Part 135 for Ventura 

Thus, the cases are factually distingui.shable. fhe only issue in the present case involved 

whether he had been administered a written or oral test in accordance with 14 C.F.R, 

§]35.293(a)and(4)-(8)-. 

- Section 135.293(a) of the FAR reads as follows: 

(a) No ecriilicate holder may use a pilot, nor may any person serve as a pilot, 

unless, since the begiiming ofthc 12th calendar month before that service, that 

pilot has passed a written or oral test, given by the Administrator or an authorized 

check pilot, on that pilot's knowledge in the following areas— 

(1) fhe appropriate provisions of parts 61,91, and 135 of this chapter and the 

operation.^ specifications and the manual of the certificate holder; 

(2) For each type of aircraft to be flown by the pilot, the aircraft powcrplaut, 

major components and systems, major appliances, performance and operating 

limitations, standard and emergency operating procedures, and the contents of the 

approved Aircraft Flight Manual or equivalent, a.s applicable, 

(3) For each type of aircraft to be flown by the pilot, f'*3] the method of 

determining compliance with weight and balance limitations for takeoff, landing 

and en route operations; 

(4) Navigation and use of air navigation aids appropriate to the operation or pilot 

authorization, including, when applicable, instrument approach facilities and 

procedures; 

(5) Air traffic control procedures, including IFR procedures when applicable; 

(6) Meteorology in general, including the principles of frontal system, icing, fog, 

thunderstorms, and windshear, and, if appropriate for the operation of the 

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01/26/201 0 16:5 1 FAX 2024935142 FAA - DMS (2)018/020 

In fact, the record does not contain any evidence or testimony to suggest that 

Capt. Tarascio operated the Learjet in a careless or reckless manner so as to endanger 

lives or property of others during the three trips in April 2006. Therefore, 14 C.F.R. 

§9l.i3(.<3) is not a residual charge to a fmding ofviolaiion concerning 14 C.F.R. 

§135.293(a) (1) and (4)-(8) only. In fact, Capt. Tarascio could have acted as a pilot (.inder 

14 C.F.R- Part 91 flight operations and, as a result, no §91.13(a) would have occurred. 

Accordingly, if Ventura was responsible for the inadvertent violation of 

§135.293(a) (1) and (4)-(8) only, it would have been caused by a reasonable 

misunderstanding when faced with an "ambiguous regulatory situation" resulting in a 

purely "technical" violation. As such, there is no residual violation concerning the 

careless or reckless operation of an aircraft in violation of §91.13(a). 

certificate holder, higii altitude weather; 

(7) Procedures for~ 

(i) Recognizing and avoiding severe weather Situations; 

(ii) Escaping from severe weather sittuitions, in case of inadvertent encounters, 

including low-altitude windshear (except that roiorcraft pilots arc not required to 

be tested on escapmg from low-altitude windshear); and 

(iii) Operating in or near thunderstorms (including best penetratmg allitudes), 

turbulent air (including clear air turbulence), icing, hail, and other potentially 

hay:ardous meteorological conditions; and 

(8) New equipment, procedures, or techniques, as appropriate. 

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Since the Complainant's appeal iailed to adequately challenge the "technical" 

nature ofthc violation, as found by the ALJ, any further objection to such a finding has 

been forever waived. As a result, the ALJ's finding of a "technical" violation in light of 

these extraordinary circumstances must be upheld. 

Therefore, the ALJ's refusal to find a residual violation of §91,13(a) was 

supported by a preponderance of reliable, probative, and .substantial evidence; and was 

made in accordance with the applicable law, precedent, and policy. Accordingly, the 

ALJ did not commit prejudicial errors that support Complainant's appeal. See In the 

Matter qfVSAir, Inc., FAA Order No. 1992-70 al 6 (December 21, 1992), 

Thus, Complainant's appeal must be denied, 

WHERFFORE, Respondent, by and tlirough undersigned counsel, respcet.["ully 

requests that the Decisionmaker deny the Complainant's appeal, reverse the initial 

decision rendered by the Honorable Isaac D. Benkin, Administrative Law Judge, and 

dismiss the Complaint in this matter with prejudice. 

Dated: January 21,2010 

kespectfull 

Gy^ggCY S. WIN ION, ESQ. 

1 .aw Experts, LLC 

C)n'c Research Court. Suite 450 

Rockville, MD 20850 

Tel: (301) 294-8550 

Fax:(301)294-2525 

Counsel for Respondent 

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01/26/201 0 16:5 1 FAX 2024935142 FAA + DMS g)020/020 

CERFIFICATE OF SERVICE 

I hereby certify that 1 have this date served by FEDEX, postage prepaid, the original and 

two (2) copies of the foregoing Respondent's Reply Brief addressed to: 

Federal Aviation Admitiistration 

Attention: Hearing Docket Clerk, AGC^30. 

600 Independence Avenue, SW. 

Wilbur Wright Building—Suite 2W1000 

Washington, DC 20591 

Tek 202 267 7158 

1 hereby certify that 1 have this date served via FEDEX, postage prepaid, a copy of the 

foregoing Resptmdent's Reply Brief addressed to; 

Christian Lewerenz, E.sq. 

1 Aviation Plaza, 

Room 561 

Jamaica, NY 11434 

Fax: 718 995-5699 

Tel: 718 995-,3273 

Dated: January 21, 2010 

GjrtGOffV^. WINTON, ESQ. 

Lviatioiirliaw Experts, LLC 

One Research Court, Suite 450 

Rockville, MD 20850 

Tel: (301) 294-8550 

Fax:(301)294-2525 

Counsel for Respondent 

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