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UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

}n the Matter of; DARBY AVIATION 

FAA Order No, 2010-5 

Dockei No. CP08SO0025 

FDMSNo. FAA-2008-1191' 

Served: June 14,2010 

DECISION AND ORDERS 

Complainant Federal Aviation Administration ("FAA") has appealed 

Administrative Law Judge ("AIAI") Isaac D. Benkin's written initial decision/ which 

granted the motion for decision of Respondent Darby Aviation ("Darby"), d/b/a Alpha Jet 

International. 

On appeal, the FAA argues that the AIJ erred in granting Darby's motion for 

decision. Specifically, the FAA contests the ALJ's finding that a Darby pilot wa.s 

qualified as a check pilot vvhen he conducted certain check rides. ITiis decision grants the 

FAA's appeal, reverses the AFJ's initial decision, and remands this case lo the ALJ for a 

determination of the appropriate sanction amount. 

Materials filed in the FAA Hearing Docket (except for materials filed in security cases) arc 

available for viewing at http://www.regulations.^ov. 

^ The Administraior's civil penally decisions, along with indexes of the deci-sions, the rules of 

practice, and other information, are available on the Internet at the foUovving address; 

hitp://faa.gov/about/officejDr^/hecuiquarters _ofrice5/agc/poljidjudication/AGC400/Civil_Penalty. 

In addition, Thom.son Reuters/Wesi Publishing publishes Federal Aviation Decisions. Finally, the 

deci.sions are available through FFXIS (TRANS library) and WcslLaw (FTRAN-FAA database). 

For additional information, see the Web site. 

This decision, which is entitled, "Adminisiraiivc Law Judge's Order Graniing Motion for 

Summary Disposition and Severing Proceeding," is attached. 
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1. Background 

This case involves two types of recurring pilot qualification checks: 

(1) competency checks that under 14 C.F.R. § 135.293 must be administered before a 

pilot may be used in operations under 14 C.F.R. Part 135 ("293 competency checks"); 

and (2) instrument proficiency checks required by 14 C.F.R. § 135.297 ("297 instrument 

checks")-

The FA A filed a complaint on November 13, 2008, alleging that Darby used one 

of its pilots, Dane Rheinschmidt, as a check pilot when he was not qualified because he 

had not completed the necessary check(s), violating 14 C.F.R. § 135.337(b)(2).'' The 

complaint further alleged that Darby used another of its pilots, Jerry Standridge, who had 

taken a 293 competency check administered by the unqualified Rheinschmidt, thereby 

violating 14 C.F.R. § I35.293(b).^ ITic FAA souglit a $44,000 civil penalty from Daihy. 

" 14 C.F.R. § 135.337(b)(2) provides: 

(b) No certificate holder may use a person ... as a check airman (aircraft) in a 

training program established under this subparl unless, with respect to the iiircrafl type 

involved, tliat person— 

(2) Has satisfactorily completed the training phases for the aircraft, including 

recurrent training, that are required to serve as a pilot in command in operations under 

this part... 

Although the FAA's complaint alleged that Darby had violated paragraph (2), paragraph (3) is 

more appropriate. Paragraph (3) provides as follows: 

(b) No certificate holder may use a person ... as a check airman (aircraft) in a 

training program established under this subpart unless, with respect to the aircraft type 

involved, that person— 

(3) Has satisfactorily completed the proficiency or competency checks that are 

required to serve as a pilot in command in operations under this part. 

In its reply to Darby's motion for decision and in its appeal brief, the FAA referred to 

paragraph (3). (FAA Reply to Motion for Decision at 3-4 n.2; Appeal Brief at 2 n.4.) In its 

appeal brief, however, it continues to refer to paragraph 2 as well. (FAA Appeal Brief at 1, 3.) 
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On December 11, 2008, Darby filed a motion for decision in which il argued that 

Rheinschmidt was, in fact, qualified when he administered the checks at issue to 

Standridge. Darby's rationale was that, under 14 C.F.R. § 135.293(c), the 297 instrument 

check that Rheinschmidt had received substituted for his 293 competency check.'* On 

January 27,2009, the ALJ issued an order consolidating the instant proceeding with 

another case against Darby. However, following a prehearing conference, the ALJ on 

February 26, 2009, issued a written initial decision severing the two proceedings, 

granting Darby's motion for decision in the instant case, and dismissing the case. Tlie 

ALJ found that the 297 instrument check substituted for a 293 competency check; 

therefore, he held, Rheinschmidt was qualified to serve as a check pilot at the times in 

question. 

IT. Fact-} 

Darby is an air carrier operating at all relevant times under 14 C.F.R. Part 135. 

On September 7, 2005, an FAA inspector administered a 293 competency check to 

Rheinschmidt in a PA-3IT aircraft. (Darby Motion for Decision, Exhibit C.) A 

293 competency check is valid until the end of the 12**" month after it is taken. 14 C.F.R. 

14 C.F.R. § 135.293(b) provides; 

(b) No certificate holder may u.sc a pilot... in any aircraft unle.s.'?, .since the 

beginning of the 12"' calendar month before that service, that pilot has passed a 

competency check given by the Administrator or an authorized check pilot in that class of 

aircraft ... to determine the pilot's competence in practical skills and techniques in the 

aircraft or class of aircraft. 

14 C.F.R. § 135.293(c) provides: 

(c) Tlie in.strumcnt proficiency check required by § 135.297 may be substituted 

for the competency check required by this section for the type of aircraft used in the 

check. 
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§ 135.293(b). As a result, Rheinschmidt's competency check on September 7, 2005, 

expired on September 30, 2006.^ 

On March 22, 2006, the FAA inspector administered a 297 instrument check to 

Rlieinschmidt in the same PA-31T aircraft. (Darby Motion for Decision, Exhibit A.) A 

297 instrument check is valid only tmlil the end of the 6"' month after the date of the 

check. 14 C.F.R. § 135.297(a). As a result, the instrument check also expired on 

September 30, 2006,' 

On November 27, 2006, R.heinschmidt, who was a properly designated check 

pilot for Darby, administered a 293 competency check to Standridge using the PA-3 IT 

aircraft. (Darby Motion for Decision, Exhibit B.) Subsequently, Darby used Standridge 

to operate the PA-3If aircraft under Part 135 on eight occasions between December 10, 

2006, and May 16, 2007.' 

On May 24, 2007, Rheinschmidt also administered a 297 instrument check in the 

PA-3 IT aircraft to Standridge. (FAA Response to Motion for Decision, Item 3.) 

' 14 C.F.R. § 135.301(a) provides: 

If a ci-ewmember who is required to take a test or a flight check under this part, 

completes the test or flight check in the calendar month before or after the 

calendar month in which it is required, that crcwmember is considered to have 

completed the test or check in the calendar month in which it is required. 

Under 14 C.F.R. § 135.301(a), if Rheinschmidt had successfully completed the 293 competency 

check in October 2006, it would have been considered as having been completed in 

September 2006, the month in whieh it was required. 

' As with the 293 competency check, under 14 C.F.R. § 135:30l(a), if Rheinschmidt had 

successfully completed the 297 instrument check in October 2006, it would have been considered 

as having been completed in September 2006, the month in which it wa.s required 

^ The A U incorrectly wrote that "[tjhe flights for which [Darby] was cited all took place within 

1 year after May 24, 2007." (Initial Decision at 4.) Each flight, in fact, took place before 

May 24, 2007. (FAA R.cspon.se to Motion for Decision, Item 4,) 
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ra. The ALJ's Decision 

In his decision, the ALJ did not address whether Rheinschmidt was qualified to 

give Standridge the 293 competency check on November 27, 2006, and focused sole)y on 

the 297 instrument check on May 24,2007. He found that Rheinschmidt was qualified to 

give Standridge the 297 instrument check. In reaching this conclusion, the ALJ 

explained that when Rheinschmidt administered the 297 instrument check on May 24, 

2007, Rheinschmidt's competency check, based on the September 7, 2005, examination, 

had expired; nevertheless, in the interim, Rheinschmidt had successfully completed a 297 

instrument check on March 22, 2006, which could be substituted for a 293 competency 

check under the regulations. Specifically, 14 C.F.R. § 135.293(c) provides as follows: 

The instrument proficiency check required by § 135.297 [297 instrument 

check] may be substituted for the competency check required by this 

section 1293 competency check] for the type of aircraft used in the check. 

Consequently, the period for Rheinschmidt's competency check dated from March 2006. 

The ALJ held that the substituted 297 instrument check covered Rheinschmidt when he 

administered the 297 instrument check to Standridge on May 24, 2007. 

The ALJ rejected the FAA's argument that the successful completion of the 

297 instrument check does not meet the requirements of 14 C-F.R. § 135.293 unless the 

297 instrument check includes all the elements of the 293 competency check. The ALJ 

stated that there was no basis in the regulation for the FAA's argument, and the FAA's 

analysis would read paragraph (c) out of the regulation. 

IV. Discussion 

On appeal, the FAA argues thai even if Darby could substitute the 297 instrument 
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check for a 293 competency check,'" the 297 instrument check sUll had expired when 

Rlieinschmidt Eidminisiered the check rides to Standridge. The FAA is correct, and tlie 

AIJ erred in several respects. A 297 bstrument check is valid until the end of the 6''' 

month after the date of the check." 14 CF.R. § 135.297(a). Consequently, the ALJ erred 

in finding that the 297 instrument check was valid until the end of the 12* month after the 

date of the check. The March 22, 2006, instrument check was valid only until 

September 30, 2006, unless Rheinschmidt look another 297 instrument check, which he 

did not. Thus, the 293 competency check Rheinschmidt administered to Standridge on 

November 27,2006, as well as the 293 competency check he administered on May 24, 

2007, were performed when RJieinschmidt had no current instrument check. 

By using Rhein-schmidt as a check pilot when he was not current. Darby violated 

14 C.F.R. § 135.337(b)(3), which prohibits using a person as a check pilot unless that 

person has satisfactorily completed all of the checks required to serve as pilot in 

command.'^ Darby also violated Section 135.293(b) by using Standridge when his 

competency check had been given by Rheinschmidt at a time when he was not qualified 

' ' The FAA states that ii does not agree with the ALJ's finding that a 297 instrument check can be 

substituted for a 293 competency check, but on appeal, the agency is not challenging this finding. 

(Appeal Brief at 3 n.5.) 

"14 C.F.R. § 135.297(a) provides: 

No certificate holder may use a pilot... as a pilot in command of an 

aircraft under IFR [Instrument Flight Rules] unless, since the beginning of the 6* 

calendar month before that service, that pilot has passed an instrument 

proficiency check under this section administered by the Administrator or an 

authoriz.ed check pilot. 

'^ See supra note 4 for the text of 14 C.F.R. § 135.337(b)(3). 
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to be a check pilot.'-' 

Conclusion 

The ALJ erred in granting Darby's motion for decision and in dismissing the 

FAA's complaint. Darby violated 14 C.F.R. §§ 135.337(b)(3) and 135.293(b). This case 

is remanded for a determination of the appropriate civil penalty, '^ 

RANDOLPH BABBITT 

ADMINISTRATOR 

Federal Aviation Administration 

'•' Darby argues in its reply brief that the FAA raised the 6-month argument for the first time on 

appeal and it should therefore not be considered. Even if the FAA should have brought it up 

below, matters raised for the first time on appeal will be considered only in "most unusual 

circumstances," such as when the "public interest is implicated ... or manifest injustice would 

result." Federal Express Corp.. FAA Order No. 2003^2 at 1 (May 6,2003), quoting Procter & 

Gamble v. Haugen. 222 F.3d 1262, 1271 (lO"" Cir. 2000), quoting Smith v. Rogers Galvanizing 

Co.. 128 F.3d 1380, 1386 (10''' Cir. 1997). "Where the issue 'is purely a matter of law ... and ... 

its proper resolution is certain,'" however, it may be considered on appeal from an ALJ's 

decision. Federal Express. FAA Order No. 2003-2 at 1, quoting Procter & Gamble. 222 F.3d at 

1271. quoting^ Ross v. United States Marshal. 168F.3d 1190, 1195 n.5 (lo"'Cir. 1999). In the 

instant case, the public interest is implicated, the issue is a matter of law, and its resolution is 

certain. 

'* Any arguments not addressed have been considered and found unworthy of discussion. 
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SERVED FEBRUARY 26,2009 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

DARBY AVL\TION, 

Respondent. 

FAA DOCKET NO. CP08SO0026 

DMS NO. FAA-2008-1192 

IN THE MATTER OF 

DARBY AVM.TION, 

Respondent. 

FAA DOCKET NO. CP08SO0025 

DMS NO. FAA-2008-1191 

EPIC F ;•••••;> . ; lir'.ii ^ 

ADMINISTRAXrS^ LAW JUDGE»S ORDER GRANTING 

MOTION FOR SUMMARY DISPOSITION AND 

SEVERING PROCEEDING 

This order grants the motion of the Respondent for summary disposition of 

the issues pending in Docket No. CP08SO0025 and severs that proceeding from 

the proceeding pending in Docket No. CP08SO0026. The severance will allow an 

immediate appeal from this order, notwithstanding the fact that I earlier denied a 

motion by the Respondent for summary disposition in Docket No. CP08SO0026. 
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In this case, the Respondent, an air carrier conducting operations under Part 

135 of the FedetaJ Aviation Regulations (FAR), has been charged with using a 

pilot, Jerry Standridge, who had not successfully passed a competency check 

within one year of his use as a pilot. Mr, Standridge had passed a competency 

check given by another Darby-employed pilot by the name of Dane RheJnsclimidt, 

a competency check that in all respects was consistent with applicable provisions 

of the FAR The question that animates this case, however, is whether 

Rheinschmidt was himself eligible to serve as a person who could give the 

requisite tests to Standridge. According to the charges launched by the Federal 

Aviation Administration (FAA), Rheinschmidt was not entitled to serve as check 

pilot for Standridge's testing because Rheinschmidt had not himself passed his 

required proficiency test within the preceding year. 

The relevant regulations are found in § 135.293 of the FAR, 14 C.F.R, 

§ 135.293. In pertinent part, they read as follows; 

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

a pilot, unless, since the beginning of the 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) The appropriate provisions of parts 61,91, and 135 of this chapter 

and the operations specifications and the manual of the certificate holder; 

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

powerplant, 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, as 

applicable; 

(3) for <each tj^je of aircraft lo be flown by the pilot, 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; 
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(5) Air traffic control procedures, including IFR procedures when 

applicable; 

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

systems, icing, fog, thunderstorms, and windshear, and, if appropriate for the 

operation of die certificate holder, high altitude weather; 

(7) Procedures for -

(i) Recognizing and avoiding severe weather situations; 

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

encounters, including low-altitude windshear (except that rotorcraft pilots 

are not required to be tested on escaping from low-altitude windshear); and 

(iii) Operating in or near thunderstorms (including best penetrating 

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

potentially hazardous meteorological conditions; and 

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

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

a pilot, in any aircraft unless, since the beginning of the 12th calendai' month 

before that service, that pilot has passed a competency check given by the 

Administrator or an authorized check pilot in that class of aircraft, if singleengine airplane other than turbojet, or that type of aircraft, if helicopter, 

multiengine airplane, or turbojet airplane, to determine the pilot's 

competence in practical skills and techniques in that aircraft or class of 

aircraft. The extent of the competency check shall be determined by the 

Administrator or authorized check pilot conducting the competency check. 

The competency check may include any of the maneuvers and procedures 

currently required for the original issuance of the particular pilot certificate 

required for the operations authorized and appropriate to the category, class 

and type of aircraft involved. For the purposes of this paragraph, type, as to 

an airplane, means any one of a group of airplanes determined by the 

Administrator to have similar means of propulsion, the same manufacturer, 

and no significantly different handling or flight characteristics. For the 

purposes of this paragraph, type, as to helicopter, means a basic make and 

model. 

(c) The instrument proficiency check required by § 135.297 may be 

substituted for the competency check required by this section for the type of 

aircraft used in the check. 
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The undisputed facts are as follows: The aircraft flown by Standridge was a 

Piper PA-31-T, twin-engine, turboprop machine, Standridge had passed a 

proficiency check in this type of aircraft on November 27, 2006. This meant that 

he was due for another proficiency check in the PA-31 -T type of aircraft on or 

before December 1, 2007. He took and passed another proficiency check, 

administered by Rheinschmidt, on May 24, 2007. The flights for which the 

Respondent was cited all took place within one year after May 24, 2007. 

Rheinschmidt had last passed a proficiency check on September 7, 2005, He had, 

however, taken and passed an instrument proficiency check on March 22,2006. 

The instrument proficiency check had been administered by an FAA Inspector at 

the local Flight Standards District Office. Hence, at the time Rheinschmidt 

administered the proficiency check to Standridge (May 24, 2007), he was out of 

time for his general proficiency check but was within a year of successfully 

completing his instrument proficiency check. 

The Complainant's motion for summary disposition was opposed by the 

FAA, principally on the ground that Rheinschmidt had not passed his annual 

proficiency check in the same "type" of aircraft on which Standridge was tested. 

That is, the FAA claimed that Rheinschmidt's test had taken place in a Lear Jet 

Model 35, a multi-engine turbo-jet powered aircraft, also owned and operated by 

the Respondent, rather than the Piper PA-31-T turboprop aircraft on which he 

purported to qualify his colleague, Standridge. But by the time the FAA's counsel 

argued the motion during a pnrehearing conference on February 24, 2009, the FAA 

had apparently changed its poskion;- It no longer argued that Rheinschmidt's 

proficiency had been checked in the wrong type of aircraft. Dtiring the conference, 

counsel for the FAA argued that Rheinschmidt was not qualified as a check pilot 

on May 24,2007 because his successfU completion of the instrument proficiency 

test did not qualify him under § 135.293 of the FAR to perfonn in that capacity. 

The Respondent, on the other hand, claims that Rheinschmidt's successful 

completion of the instrument proficiency test within a year of the date he 

administered the geaeral proficiency test to Standridge made him eligible in this 

respect to serve as Standridge's check pilot. 

The controversy turns upon the meaning of the language of § 135.295(c): 

"The instrument proficiency check required by § 135.297 may be substituted for 

the competency check required by this section for the type of aircraft used in the 

check." It is the Respondent's position that this exception to the general rule of 

§ 135,295(a) covered Rheinschmidt at the time he administered the general 

proficiency test to Standridge. 
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As a matter of pure construction of the language of § 135.295(c), it appears 

that the Respondent is correct. Rheinschmidt's case, as of the date he administered 

the proficiency test to Standridge, fell squarely within the meaning of that 

language: He was substituting his successful completion of an instrument 

proficiency check given under § 135.297 for the general proficiency test specified 

in § 135.295. 

According to the argiraient of Complainant's counsel at the prehearing 

conference, Rheinschmidt's successful completion of the instrument proficiency 

test could not be substituted for successful completion of the general proficiency 

test This is the case, the Complainant argued, because the instrument proficiency 

test did not cover all of the subjects that are required to be tested in a general 

proficiency test under § 135.295(a)(l)-(8). Proof of that, says the FAA, can be 

seen if we examine the test score sheet. Form 8410-3, that the person who 

administered the test filled out when he examined Rheinschmidt to detennine 

whether he would pass the instrument proficiency test. Several of the blocks are 

not filled in to show that Rheinschmidt met applicable requirements for the general 

proficiency test. Hence, his successful completion of the instrument proficiency 

test provides no assurance that he met all of the general proficiency requirements 

set forth in § 135.295(a)(]>(8) and (b). 

In short, it is the FAA's position that successful completion of the 

instrument proficiency test does not satisfy the requirements of § 135.295 unless 

the instrument proficiency test includes all of the elements of the general 

proficiency test. 

There are two significant problems with the FAA's approach. 

First, there is no basis for it in the language of the regulation. Paragraph (c) 

of § 135,293, while not a model of skillful draftsmanship, is clear enough in the 

context of this contrpversy. It allows a pilot who has successfully completed an 

instrument proficiency check imder § 135.297 to substitute that achievement for 

successful completion of the general proficiency check under § 135.293. There is 

nothing in the language of paragraph (c) that suggests that in order to use the 

instrument proficiency check as a substimte for the general proficiency check, the 

pilot must have been tested on those subjects which, although irrelevant to an 

instrument proficiency check, would be subjects tested during a general 

proficiency check. 
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The second problem with the FAA's analysis is that, as a practical matter, it 

would read paragraph (c) out of the regulation. If successful completion of an 

instrument proficiency check is insufficient to qualify a pilot as having passed the 

general proficiency requirements unless the instrument proficiency check includes 

all of the elements of a general proficiency check, there would appear to be no 

purpose in allowing those who pass the instrument proficiency check to substitute 

it for the general proficiency check. That is the case because the instrument 

proficiency check would include all of the elements of the general proficiency 

check, so a pilot seeking to demonstrate his proficiency in IFR operations might 

just as well take both tests. If paragraph (c) has any purpose, it is to avoid such 

unnecessary multiple testing. 

This is not to say that the FAA's position is totally unwarranted. For an 

agency concerned with maximizing the safety of flight, the possibility of licensing 

a pilot who is capable of passing the instrument proficiency test but who cannot 

successfiilly complete the general proficiency check might be a matter of concern. 

If that is the case, it might be advisable to require someone like Mr. Rheinschmidt 

lo demonstrate his general proficiency at least once every year even though he may 

also during that year become qualified as an instrument pilot. To do so, however, 

one would have to change the language of the regulation, That is something that 1 

cannot do, nor is it something the FAA can accomplish through the medium of 

prosecuting a civil penalty claim. 

For the foregoing reasons, and subject to review by the Administrator as 

provided in § 13.233 of the Rules of Practice, 14 CF.R. § 13.233, IT IS 

ORDERED that -

1. The proceeding in Docket No. CP08SO0025 is severed from the proceeding 

in Docket No. CP08SO0026; 

2. The Respondent's motion for summary disposition in Docket No. 

CP08SO0025 is granted; and 

3. The complaint in Docket No. CP08SO0025 is dismissed with prejudice. 

Isaac D. Benkin 

Administrative Law Judge 

Attachment-Service List 
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[Note: This decision may be appealed to the Administrator of the FAA. Tbe Notice of 

Appeal must be filed not later than 10 days after service of this deciBion. The appeal roust 

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

this decision. The Notice of Appeal and brief or memorandum must cither be mailed to the 

Federal Aviation Administration, Wilbur Wright Building, 800 Independence Avenue, 

S.W., Waehington, D.C. 20591, Attention; Docket Clerk, or delivered personally or via 

expedited courier service to the Federal Aviation Administration, 600 Independence Ave., 

S.W. Washington, D.C. 20591, Attention: Hearing Docket Clerk, AGC-430. A copy of the 

Notice of Appeal and brief or memorandum should also be sent to counsel for the FAA in 

this proceeding.)