SERVED JUNE 23, 2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASfflNGTON, D.C. 

IN THE MATTER OF 

AIRTRAN AIRWAYS, INC., 

Respondent. 

DOCKET NO. CP10SO0002 

(Civil Penalty Proceeding) 

DMS NO. FAA-2010-0193 

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION 

The issue for decision in this civil penalty enforcement case is the 

amount of the civil penalty that should be assessed against AirTran Airways, 

Inc. (AirTran or Respondent) for a single isolated violation of a provision of 

the Federal Aviation Regulations (FAR) limiting the duty time of a flight 

attendant. The rules pertaining to maximum on-duty times of flight 

attendants are set forth in §121.467 of the FAR. Among other things, 

§121.467 prescribes that an airline such as the Respondent "must relieve 

each flight attendant from all further duty for at least 24 hours in any 7 

consecutive calendar days." See §121.467(b)(13). In its complaint, filed on 

February 24, 2010, the Federal Aviation Administration (FAA or 

Complainant) failed to comply with this requirement with respect to a flight 

attendant by the name of Christopher Martin during the 7-day period 

beginning on July 9, 2008 at 8:00 p.m. and ending on July 16, 2008 at 10:53 

p.m. The complaint sought to assess a civil penalty of $15,000 against 

AirTran. 

AirTran did not deny the claim that it violated the regulation. It did, 

however, object to the amount of the civil penalty sought by the FAA, 

contending that a $15,000 assessment was both "excessive" and 

"unwarranted." During the prehearing phase of the case, the FAA filed a 

motion for summary disposition or, in the alternative, for a ruling limiting 

the hearing to the issue of quantum. After reviewing the Respondent's 
opposition to the motion, I ruled, in an order issued May 19, 2010, that while 

AirTran had the right to a hearing on the issue of the appropriate amount of 

the civil penalty it must pay, the FAA was entitled to favorable action on its 

motion to limit the hearing to that issue. The hearing was held before me in 

Orlando, Florida on June 15, 2010. At the conclusion of the hearing, 

counsel for both parties were give the opportunity to make closing 

statements in lieu of briefs and took advantage of that opportunity. Hence, 

the case is now ripe for decision. 

At the hearing, both parties recognized that the starting point for 

analysis of the proper sanction was the FAA's sanctions policy statement 

embodied in FAA Order No. 2150.3B. The FAA presented the testimony of 

one witness, Thomas T. Frishe, a Safety Inspector assigned to the Technical 

Br£inch of the agency's Flight Standards Division for its Southern Region. 

Mr. Frishe was the supervisory official who recommended that a $15,000 

civil penalty be sought in this case, a recommendation which was approved 

by the FAA's legal staff Mr. Frishe said, in'substance, that his 

recommendation had its start in Appendix B, Figure B-11 of Order 2150.3B. 

He began with Figure B-l-n, which provides that for a violation of flight and 

duty time limitations with respect to a flight deck crew, a civil penialty in the 

"moderate" range was appropriate. Then he referred to paragraph (1) of 

Appendix B, which groups carriers into several Groups, depending on their 

annual gross operating revenue and the size of their fleets. AirTran was 

deemed to fall into the Group I, category, LC^ a large business concern with 

annual operating revenue of $100 million or more. For such a category, says 

Appendix B, a "moderate" civil penalty is in the range from $10,000 to 

$ 18,749. Chapter 7 of the Order prescribes that, once the range is -

determined, enforcement persormel should "begin with an amount in the 

middle of the range and increase that amount toward the higher eiid of the 

range for aggravating factors or decrease that amount toward the lower end 

of the range for mitigating factors." See paragraph 5b(3).' 

Mr. Frishe testified that he could find no mitigating or aggravating 

circumstances to have been present in this case. Hence, he determined that 

' This advice appears to apply only with respect to "Single, Fir$t-Time Inadvertent Violations" -^ a category 

that both witnesses agreed was applicable in this case. 
an appropriate penalty lay in the middle of the $10,000-$ 18,749 range. 

After calculating that figure ($14,374.50), he "rounded it up" to $15,000.^ 

Mr. Frishe testified that he gave no weight to the fact that the 

Respondent had a history free of violations of the FAR, saying that under 

Order No. 2150.3B, a violation-free history was deemed to be the norm and 

was not regarded as a mitigating factor. He also gave no weight to the 

carrier's claim that it had had several unprofitable years, since review of its 

gross revenues during that period indicated it had the ability to absorb the 

penalty he had recommended. He said that, in the case of a large 

respondent, such as AirTran, the FAA could not allow the penalties for 

violations of the FAR to be regarded as simply a cost of doing business. Mr. 

Frishe also conceded that he could find no aggravating circumstances in 

connection with the violation by AirTran. 

Mr. Frishe was extensively cross-examined on the question of why he 

began his analysis by consulting a provision of Appendix B that dealt with 

violations of fiight and duty time rules applicable to flight deck crew 

members. He testified that he saw no real difference between the treatment 

of violations with regard to flight attendants and violations involving pilots, 

co-pilots, flight engineers, etc. Both groups of employees have safety 

responsibilities, he noted, so there is no qualitative difference between the 

two types of violations. Mr. Frishe also testified that because the guidance 

in Order No. 2150.3B divided carriers by their gross revenues, he used only 

gross-revenues figures as the measure of the potential economic impact of 

the civil penalty. As of the time he had reviewed the file, said Mr. Frishe, he 

did not know whether or to what extent AirTran had instituted corrective 

action to ensure that this violation did not recur. Hence, he conceded that 

the carrier's corrective action, if any, did not play a part in his 

recommendation. Nor did he know, at the time he made his 

recommendation, whether Air Trans had admitted that the violation had 

taken place. He also acknowledged that the violation in question did not 

result from a "systemic" failure; in any event, Mr. Frishe said, the absence of 

a systemic failure would not be considered a mitigating factor. 

Mr. Frishe also conceded on cross-examination that he was not aware 

of the penalty assessed in other, similar cases, that he was not aware of how 

^ The actual midpoint of the range is $14,374.50. Since there is no magical quality inherent in a number 

that can be evenly divided by 5, one wonders why the FAA persists in "rounding" upward rather than 

downward or simply leaving the calculated midpoint alone. 
AirTran scheduled its flight attendants for work - except that he was certain 

the use of computers was involved - and that AirTran has a favorable 

reputation among FAA personnel assigned to monitor its safety 

performance. During his redirect examination, Mr. Frishe made itclearthat, 

in forming his $15,000 recommendation, he had not considered any factors^ 

which had arisen after the investigation was concluded. 

The sole witness for AirTran was Jeffrey A. Miller, the carrier's Vice 

President for Operations and Director of Gyrations. Mr. Miller explained 

that the reason why the violation occurred was because of a defect in the 

"Crew Trac" software that it had acquired from Sabre Corporation and that 

it, along with a number of airlines, used for the purpose of scheiJoKng the 

work of its flight attendants.^ During the seven-day period that the FAA had 

studied, Mr. Miller said. Flight Attendant Martin was scheduled to spend 24 

hours in a status denominated "home reserve." A flight attendant on home 

reserve was allowed to remain off the job, but was required to be Available 

by telephone in case his or her services were urgently needed. TTie FAA 

traditionally did not regard a flight attendant on home reserve as off duty and 

able to get the 24-hour respite that the regulations require. AirTran did not 

disagree with this view. However, once the flight attendant completed his or 

her home reserve assignment and was returned to full duty status, the Sabreprovided software automatically erased the flight attendant's home reserve 

status and, thus, did not signal managementthat the home reserve time 

should be treated as on-duty time. Hence, it appeared to AirTran's scheduler 

that, once Mr. Martin had begun a new on-duty shift, he had enjoj^ed the 24-

hours off duty that the regulations required. 

Once the "glitch" in the software was discovered, Mr. Miller testified, 

he immediately notified the AirTran schedulers and instructed them to check 

flight attendants' schedules to avoid repetition of the error. A bulletin to the 

same effect was issued throughout the airline. AirTran also brou^t tiie 

matter to the attention of Sabre and asked it to fix the software, a pit)ce8s 

that was ongoing at the time the hearing was held. This "fix" will^ &f course, 

apply to all of the airlines that use tiie Sabre-^produced scheduling program. 

' Under the FAR, an airline such as AirTran has the option, with the consent of the FAA, to treiit hours-ofservice for flight attendants in the same maimer as it scfaedulelt ite pilots and other flight'decl^^^ia^omiel. 

AirTran did not take advantage of this option. Hence, it scheifaled tbe work of its fligjhtattedlttiitsljy using 

a computer program that dealt only with them. 

4 
(One of the interesting points made in Mr. Miller's testimony is that 

there is no pencil-and-paper back-up system of records concerning the 

schedules of flight attendants; it is all computerized. Hence, when the 

FAA's inspector came to examine Air Trans' records, there was no way he 

or she could tell that the violation occurred. In short, the FAA's prosecution 

of this case had to have originated with a complaint.) 

As Mr. Miller testified, this violation appeared to be a single isolated 

incident. No other violations of the hours-of-service rules have been 

reported. 

Mr. Miller's direct testimony also addressed the financial condition of 

the airline. He testified that AirTran, though a major airline employing 

some 2,000 flight attendants and 1,600 pilots, has not been profitable. He 

sponsored Exhibit R-3, which shows that the carrier experienced a net loss 

of $266.3 million on revenues of $2.6 billion in 2008. In 2009, however, the 

result was net income of $134.7 million on revenues of $2.3 billion.'^ 

In Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6, 

2008), the Administrator ruled that the starting point for decisions on the 

amount of the civil penalty that should be assessed must start with 

consideration of the policies set forth in FAA Order No. 2150. See also, 

American Air Network. Inc.. FAA Order No. 2006-5, 2006 FAA LEXIS 181 

(2006). The version of that order applicable to this case is Order No. 

2150.3B. Both sides have paid homage to Order 2150.3B; however, their 

arguments make it clear that application of the Order to a particular fact 

situation is not a task to be taken lightly. 

To begin with. Order 2150.3 does not provide specific instructions 

pertaining to the violation with which we are here concerned. As we have 

seen, it refers to a violation of the hour-of-duty limitations with respect to 

flight-deck personnel, not flight attendants. FAA witness Frishe testified 

that, in his view, there should be no difference in the treatment of the two 

kinds of violations. This was the case, he said, because both members of the 

flight-deck crew and flight attendants have safety-related duties. True as this 

may be, there is a qualitative difference in the safety aspects of the two kinds 

* The relevance of a lot of the financial data introduced by the parties is questionable. No one has 

suggested that AirTran would be fmancially unable to pay the penalty sought by the FAA and remain a 

viable business. Nor does Air Trans contest the FAA's claim tiiat it is a Category I carrier. 
of jobs, one that would cause a rational administrative agency to treat the use 

of a pilot or co-pilot for excess hours as a more serious offense than 

violation of the maximum-hours rules for flight attendants. This notion 

gains support from the realization that Order No. 2150.3B calls for use of 

certificate revocation proceedings in the case of a pilot who works excessive 

hours but does not do so in the case of a flight attendant who commits a 

similar violation. 

Paragraph 4 of Order No. 2150.3B lists a number of factors that may 

be considered mitigating or aggravating circumstances. It notes that 

"[v]iolations that involve careless or reckless conduct in violation of 14 

C.F.R. §91.13 may warrant more severe sanctions." There is nO'claim that 

the violation committed by the Respondent in this case can be deemed either 

careless or reckless in nature. Similarly, the guidance states that a deliberate 

or intentional violation can be dealt with more harshly than one that is 

inadvertent or not deliberate. Here again, there is no basis for con^dering 

AirTran's violation to have been committed intentionally or deliberately, 

and, hence, no basis for increasing the penalty beyond the middle of the 

range otherwise authorized by the Order. The Order makes it clear, 

however, that AirTran's good compliance attitude and history is not to be 

regarded as a mitigating circumstance. 

Paragraph 4d(l) states, "[a] good compliance attitude is thfc norm and 

does not warrant a reduction in sanction." It goes on to say that a poor 

compliance history may be grounds for assessing a larger penalty. The 

"degree of hazard" resulting from the violation is another factor mentioned 

in Order No. 2150.3B. Here, again, the guidance deals with a factor that can 

increase the penalty but the absence of whicli cannot serve to mitigate it. 

"The sanction ranges," reads paragraph 4e(2), " reflect the degree of danger 

normally inherent in an average violation of a regulation, without 

aggravating circumstances." Paragraph 4h(l) reiterates a theme sounded in 

an earlier section of the Order: no credit is to be given to a violatorinerely 

because the entity has a good record. "A violation-^firee history is the 

expected norm, not the exception and, therefore, is not a mitigating factor. 

Sanction ranges in the table generally represent the normal range* of sanction 

for a single, first-time, inadvertent violation." Hence, it is not possible to be 

consistent with the terms of Order No. 2150.3B and give great weii^ht to the 

carrier's contention that it should be relieved of most of the penalty because 
this violation was a single, one-time occurrence which happened through 

inadvertence to a sound, safety-conscious air carrier.^ 

Despite its emphasis on aggravating factors, paragraph 4 of Order No. 

2150.3b does address three aspects of mitigation. The first is whether the 

violation was reported voluntarily. This factor is not relevant to our case 

because, as noted above, it is likely that the violations came to the FAA's 

attention as the result of a complaint. The second is whether corrective 

action was taken by the putative violator. "The FAA considers corrective 

action a mitigating factor in determining sanction provided the corrective 

action exceeds the minimum regulatory or statutory requirements." IdL at 

paragraph 4m. The third is the directive, found in paragraph 4i, to pay 

attention to decisions of the Administrator in individual civil penalty 

assessment cases. 

A review of those cases indicates that over the years, the 

Administrator has given significant weight to respondents' effort to take 

prompt steps to assure that the violation will not recur. See Toyota Motor 

Sales, FAA Order No. 1994-28, issued Sept. 30, 1994 at 8; Interstate 

Chemical Co.. FAA Order No. 2002-29, issued Dec. 6, 2002, at 18; TCI 

Corp., FAA Order No. 1992-77 at 21-22. Many of these cases involved the 

transportation of hazardous materials, a field in which training of employees 

has a somewhat special significance. Nevertheless, they indicate that 

corrective action is something that should be considered in determining the 

appropriate assessment. 

Mr. Frishe testified that he did not consider this factor because, at the 

time the file was forwarded to him for review, the conference between the 

parties, scheduled after the Respondent's receipt of the Letter of 

Investigation, had not taken place. It was at that conference that the 

Respondent set forth the remedial steps it had taken to ensure that the 

violation would not happen again. This recitation of the Complainant's 

logistical problems may explain why Mr. Frishe did not immediately 

circumscribe his recommendation to consider whether AirTran should be 

given credit for mitigation of the violation. It does not, however, excuse the 

failure to do so during the process of preparing the formal complaint. In 

prior cases construing Order No. 2150.3B, the Administrator specifically 

' During the hearing, counsel for the carrier was asked what figure it regarded as a sufficient assessment. 

His answer was $2,000. 
directed that the civil penalty assessed against a violator of the FAR should 

be modified to take account of prompt corrective action. In this case, the 

Respondent did all that it could logically be expected to do to make sure that 

the software defect that caused Flight Attendant Martin to be assigned to 

excessive hours of work did not affect any other flight attendant in its 

employ.^ If, at the time he reviewed the enforcement file, Mr. Frishe did not 

have the requisite information to determine whether AirTran had taken 

prompt corrective action, he should have asked the field investigator to 

secure that information and pass it along to him. He should not have, simply 

ignored this element of the case. 

I disagree with Mr. Frishe's view of the proper methodology for 

assessing the civil penalty against AirTran in three respects. First, there is 

the application to the carrier of the civil penalty ranges called for by Order 

No. 2150.3B in cases where a member of the flight deck crew is used in 

violation of the maximum flight and duty time rules. This case involves a 

flight attendant, not a member of the fli^t deck crew. There is a difference 

in the gravity of the violation when it affects only a flight attendjajt It is 

true, as Mr. Frishe testified, that flight attendants have safety-related duties 

just as do members of the flight deck crew. But there is also no question that 

an inattentive, overworked pilot or co-pilot poses a much graver hazard than 

an inattentive, overworked flight attendant. In as^ssing a civil penalties, 

this difference in the gravity of the two types of violations must be taken 

into account. This is the clear mandate of 49 U.S.C. §46301(e)(l), which 

requires the FAA to consider the "nature, circumstances and gravity of the 

violation" when it fastens liability for a civil penalty. 

My second disagreement with Mr. Frishe relates to the process of 

"rounding up" a penalty calculated in accorctence with Order No. 21S0.3B to 

the next larger amount that is divisible by five. In this case, Order No. 

2150.3B called for the person calculating the penalty to begin with an 

amount that was in the middle of the range of "Moderate" sanctions 

applicable to a Group I large business concern. ^ The range set forth in the 

* One cannot fault AirTran for Sabre's delay in putting a permanent "fix" into effect, since ibfi software is 

proprietary to Sabre, not An- Tran. 

No one questions the fact that AirTran was, by any measure, a large business concern. AiiTran did 

suggest that it was unfair to measure its size by looking only to its gross revenues, rather than its net 

income. But the use of gross revenues, rather than n^ income was a decision well within the 

Administrator's discretion and, hence, is unreviewable. 
Order is $10,000-to-$ 18,749. The middle of that range calculates to 

$14,374.50. But Mr. Frishe and the FAA did not start with that figure, as the 

Order required. Instead, they assumed that the middle of the range was 

$15,000, and that is the figure that emerged from their cogitations. There 

was no rational basis for that assumption. While it may be argued that the 

difference between the two amounts, $625.50, was de minimis in the eyes of 

this regulatory agency, we must also remember that it represents revenue for 

which some person or persons worked very hard and/or for which capital 

was placed at risk. I disapprove of the FAA's practice of "rounding up" 

calculated penalties to achieve the result its minions desire. 

Finally, I disagree with Mr. Frishe's failure to give AirTran any credit 

for prompt remedial action. As we have seen, many of the cases that deal 

with remedial action as a mitigating factor involved hazardous materials 

transportation; in such cases, additional training for employees is devoutly to 

be desired. Nevertheless, the principle is the same in this case: training 

employees to recognize and correct "glitches" in a computer program that 

would otherwise require flight attendants to work excessive hours is 

praiseworthy and ought to be taken into account in assessing a civil penalty. 

AirTran's efforts to put paid to the violation that occurred here - a one-time 

unintentional inadvertent occurrence - should serve to reduce the amount of 

the civil penalty that it must absorb. 

For these reasons, I conclude that AirTran should incur a civil penalty 

at the lower end of the range of moderate penalties applicable to Group I 

carriers under FAA Order No. 2150.3B. Subject to review by the 

Administrator, the penalty assessed against Air Tran in this case will be 

reduced fi-om $15,000 to $10,000. 

In consideration of the foregoing, and subject to review by the 

Administrator on appeal or on the Administrator's own motion, IT IS 

ORDERED that1. The Respondent, AirTran Airways, Inc. is liable to the United States 

of America as represented by the Federal Aviation Administration for 

a civil penalty in the amount often thousand dollars ($10,000.00); and 
2. The Respondent shall pay the amount for which it has been held liable 

herein to the Federal Aviation Administration forthwith. 

Isaac D. Benkin 

Administrative Law Judge 

[Note: This decision may be appealed to the Administrator of ifiie FAA. 

The Notice of Appeal must be filed not later than 10 days aftei* sek*vice 

of this decision (plus five additional days, if tliis decision is served by 

mail). 14 C.F.R. §§13.233(a), 13.211(e). The appeal must be perfected 

with a written brief or memorandum not later than 50 days after service 

of this decision (plus five additional days, if this decision is served by 

mail). 14 C.F.R. §§13.233(c), 13.211(e). TheNoticeof Appeal And brief 

or memorandum must be either (a) mailed to the Federal Aviation 

Administration, 800 Independence Avenue, S.W., Washington, DC 

20591; Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright 

Building—Suite 2W1000, or (b) delivered personally or via expedited 

courier service to the Federal Aviation Administration, 600 

Independence Ave., S.W., Wilbur Wright Building—Suite 2W1000, 

Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430. 14 

C.F.R. §§13.233(a), 13.210(a)(2), (1). A copy of the Notice of Appeal and 

brief or memorandum should also be sent to counsel for the FAA in this 

proceeding. 14 C.F.R. §13.233(a).l 

10 
FAA Docket No. CP10EA0002 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC^30 

Wilbur Wright Building—Suite 2W1000' 

ONE COPY 

Stephen J. Kolski, Executive Vice President 

Operations & Corporate Affairs 

AirTran Airways, Inc., Respondent 

9955 AirTran Blvd 

Orlando, FL 32827 

TEL: 407-318-5108 

FAX: 407-318-5901 

Rashavm Rich George, Complainant's Counsel 

Office of the Regional Counsel, ASO-7 

Southern Region 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

The Honorable Isaac D. Benkin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

TEL: Attorney 202-366-2139 

Legal Assistant 202-366-2132 

FAX: 202-366-7536 

' Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.