SFRVED DECEMBER 13, 2010 

:;:FARTMENTOF 

• '''NSPORWION 

KKEI OPERATIONS 

UNITED STATES DEPARTMENT OF TRANSPORTAfidl^ ' 3 P 2- k 1 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

V. 

AMERICAN EAGLE AIRLINES, INC. 

Respondent. 

FAA DOCKET No. CP09SW0006 

(Civil Penalty Action) 

DMS No. FAA-2009-1042 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found; 1) Respondent violated 14 CFR §§119.5(1), 121.367(c), and 121.369(b) as 

charged; and 

2) Respondent is assessed a civil penalty of $20,000. 

I. Back2round 

This proceeding stems from maintenance performed by a Part 145 repair 

station, Eagle Aviation Services ("EAST'), on an Embraer 145 aircraft, N684JW, 

during the evening of January 31, 2008. 

The allegations of the Federal Aviation Administration ("Complainant," 

"FAA," or "the agency") concern a required maintenance task that EASI assertedly 

failed to perform (Tr. 22). The charges are rooted in the agency's conclusion that 

Respondent did not sterilize the lavatory water reservoir in accordance with 

applicable directives. The FAA filed a Complaint against the air carrier deemed 

responsible for the maintenance, Part 121 certificate holder American Eagle 

Airlines, Inc. of DFW Airport, TX ("Respondent" or "American Eagle") (seeExh. A-5). 

The FAA's Complaint, as amended,' alleges that Respondent violated three 

sections of the Federal Aviation Regulations ("FARs"): l) section 119.5(1), in that 

American Eagle operated contrary to its operations specifications,' 2) section 

121.367(c), which requires a carrier to ensure that aircraft released to service 

Complainant's Motion to Amend the Complaint {see Tr. 11-21) is granted. 
following maintenance is airworthy and has been properly maintained for operation! 

and 3) section 121.369(b), which obligated American Eagle to ensure that, when 

performing maintenance, its manuals had been followed. Complainant seeks a civil 

penalty of $47,400.2 

Respondent disputed the charges and the civil penalty proposed. 

A hearing was held in Arlington, TX on March 24, 2010. I determined that a 

written decision was reasonable and appropriate under the circumstances (Tr. 235). 

The parties filed post-hearing briefs and the matter now is ready for decision. 

I hold that the facts and circumstances of this case necessitate findings of 

violations on all counts and warrant an assessment against Respondent of $20,000. 

II. Discussion 

A. The Testimony 

Two FAA inspectors testified for Complainant: Respondent's principal 

maintenance inspector ("PMI"), Mitchell Wagster, and aviation safety inspector 

Ronald Stilwell (Tr. 27-28, 37, 85). Respondent's witnesses were its director of 

maintenance, Joseph Resnick, and Jeffrey Sands, who investigated the matter (Tr. 

170-71, 209-10). 

EASI is a contract vendor of American Eagle as well as a certificated repair 

station. There is Uttle question that American Eagle bears legal responsibility for 

EAST'S acts and omissions, and I so find {seeTr. 162). 

EASI had scheduled maintenance for the Embraer 145 aircraft for the 

evening of January 31, 2008, at its maintenance facility in Abilene, TX (Tr. 153, 161, 

173). Performance was governed ultimately by the aircraft's operations 

specifications ("op specs"). The Embraer's op specs require Respondent to maintain 

the aircraft through its continuous airworthiness maintenance program ("CAMP"). 

CAMP, in turn, obligates use of the aircraft's Engineering Specification Maintenance 

Manual ("ESM") (Tr. 29-30, 35-36, 128; Exhs. A-1, p. 1, and A-2, p. l). The ESM 

mandated a so-caUed Phase 3A check at stated intervals. Encompassed within the 

3A check was another check, known as a Phase lA check (Exh. C-13; Tr. 121-22, 

193). Phase lA tasks were to be performed at intervals no longer than every 500 

flight hours (Exh. A-1, p. 3; Exhs. C-6, C-7; Tr. 32-33, 202). A Phase lA task, the 

requirement to sterilize the aircraft's potable water reservoir, is what concerns us 

today. 

The task at issue was governed by a work card with the identifier 12-200-00, 

TR 07-77 (Exh. C-5; see alsoExhs. C-1, p. i; Exh. C-7; Tr. 99-100, 102-05). TR 

^See 49 U.S.C. §46301; Tr. 23. This matter had been consolidated with another in which American Eagle 

also had been the Respondent, FAA Docket No. CP09SW0007 ("0007"). Case 0007 was dismissed by 

Order of Dismissal served March 19, 2010. 
stands for "temporary revision;" the work card (also known as a task card) in effect 

on January 31, 2008 had been revised on December 30, 2007 (Exh. C-3; Tr. 93). A 

task card directs how work should be performed. John Ellis Nanney, 2002 WL 

31133002, EA-4996 (NTSB September 18, 2002). Task card 12-200-00, TR 07-77 

directed Respondent to sterilize the potable water re.servoir per engineering order 

EM-3800-007R4 Part B (Exhs. C-3, C-4; Exh. C-1, p. l; Exh. R-3, p. l; Tr. 97). 

An engineering order, or EG, spells out the process by which a task is to be 

completed (Tr. 95). EG EM-3800-007R4 Part B described the task as "sampling, 

testing, deactivating, cleaning, sanitizing, re testing, and re-activating the potable 

water system for positive results."^ The procedure is designed to neutralize the 

| | contaminants in the potable water system by placing a chemical mix into the potable 

{| water reservoir for a certain period of time (Tr. 41-42, 75, 79; Exh. C-1, p. 3). The 

if mix then is flushed out of the system (Tr. 79). The final step is to service the 

i| lavatory with water (Tr. 81). The EG estimated 8-12 "labor hours" for the task, 

j I while the "estimated time" — the time needed to actually complete the sterilization 

\: process - was projected at 16-24 hours (Exh. C-4, pp. 1, 9 (labor hours); Exh. C-4, p. 

\\ 1 (estimated time); Tr. 79, 98). 

\ '\ The aircraft was supposed to be out of service for scheduled overnight 

maintenance only. When the mechanic (also known as a maintenance technician) 

: r charged with performing the sterilization task realized that the EG estimated 16 to 

24 hours for completion, he informed his crew chief. EASI did not have enough time 

to complete the task and release the aircraft the next morning as scheduled. The 

crew chief then directed the mechanic to perform a "shorter" version of the task (Tr. 

41-42, 173-74, 196). 

The shorter version addressed sterilization of the potable water in the 

lavatory system before the December 30, 2007 revision. It is spelled out in a work 

I card with the same initial identifier as the "longer," post-revision version, 12-200-00. 

; Both the shorter and the longer version appeared on EASI's web site."* 

The repair station's crew chief in Abilene had checked the Phase lA web page 

and had found the work card which had been valid prior to the TR 07-77 revision, 

i.e. the shorter version. The longer, correct version was on the Phase 3A web page. 

The revision had added a requirement of completion per the EG. The new 

I requirement lengthened the estimated labor hours for completion of the sterilization 

! process from 1.5 hours (Exh. C-7; Tr. 105) to 8-12 hours (Exhs C-4, C-8; Tr. 164). 

But the crew chief had failed to address this discrepancy. In the words of 

Complainant's witness inspector Stilwell, the crew chief had "made a judgment caU" 

and told the maintenance technician that he need not comply with the EG. The 

technician was told to perform the shorter version (Exh. C-1, p. 3; Exh. R-3; see Exh. 

^ Exh. C-4, p. 1. "R4" refers to the revision number; the engineering order had last been revised on 

September 26, 2007. Part B is the section covering sterilization of the potable water system. Exh. C-4. 

* Exhs. C-2 and R-2; Tr. 78-79,176-77,198, 223. The parties agree that Exhibits C-2 and R-2, each 

representing a blank "shorter version" of work card 12-200-00, are identical. Tr. 81-82, 91. 
C-2 (pre-revision work card); Tr. 144, 176, andExh. C-3 (post-revision work card); 

Tr. 93, 144). The shorter version, of course, had set out a procedure which was out of 

date (Tr. 76-77, 173). It was not the task card in force for maintenance of the 

potable water reservoir (Tr. 79, 81-82, 158). The mechanic, according to Respondent, 

then performed the shorter version. But he did not sign off on it (Tr. 223). He did 

sign off on a non-routine work card (Exh. C-9). 

The task described by the non-routine work card constitutes hooking up the 

tank and filling it with water. It does not include sterilization (Exhs. C-9 and C-IO; 

Tr. 117). The task is normally accomplished following completion of the 

requirements of the phase check (Tr. 183). Performance is to ensure that the tank is 

full when returned to revenue service (Tr. 181-83). The i;ion-routine work card, 

dated February 1, 2008, states that the potable water was "serviced" in accordance 

with Embraer's Aircraft Maintenance Manual ("AMM"), task 12-15-01 (Exh. C-9; Tr. 

114). The referenced AMM section describes the task as "water tank - servicing" 

(Exh. C-IO). But the AMM section neither is referenced in the operative EG nor 

appears in the ESM (Exhs. C-1, p. 3; Exhs. C-4, C-5, C-9, and C-IO; Exh. R-3; Tr. 

109-10, 114-17, 149). The card noted that the mechanic had used .5 hours for the 

task (Exh. C-9; Tr. 182-83). 

The aircraft was released the morning after maintenance performance had 

begun, February 1, 2008 (Exh. C-1, p. 3; Tr. 42, 175, 189). The carrier elected to 

defer the potable water system per Minimum Equipment List ("MEL") 38-01 prior to 

resuming revenue flights (Exh. C-1, pp. 2, 3; Exh. C-16; Tr. 46, 125, 163-64, 175, 

198-99). This action deactivated the system. The water was drained out of the 

lavatory sink (Tr. 189, 199). Respondent notified the agency of the deferral (Tr. 71-

74). 

The potable water system remained deferred per the MEL for eleven days 

(Exh. A-5; Exh. C-14; Tr. 124-27, 201). Following that interval, on February 12, 

2008, at DFW, EASI signed off sterilization the potable water system according to 

the task card then in effect. The repair station cleared the MEL (Exh. C-14; Tr. 127, 

201-02). American Eagle had completed fifty-three flights during the intervening 

period (Tr. 118; Exh. C-ll). 

Respondent officials had learned of the situation the morning of February 1, 

2008, when the aircraft either was on its way to DFW or had already arrived (Exh. 

C-1, p. 3; Tr. 55). The carrier had notified the FAA under the agency's Voluntary 

Disclosure Reporting Program ("VDRP") (Exh. C-i; Tr. 37, 72, 175). The VDRP 

permits certificate holders Kke Respondent to avoid civil penalties for "covered 

instances of noncompliance" if the agency accepts its petition. Certain conditions 

must be met to ensure acceptance. As spelled out in the document implementing 

and setting out revised terms of the VDRP, Advisory Circular ("AC") 00-58A, these 

conditions include: l) the apparent violation must have been reported immediately 

following detection and before the agency has learned of it by other means; 2) the 

apparent violation must have been inadvertent; and 3) the carrier must have taken 

"immediate action, satisfactory to the FAA, .. . to terminate the conduct that 

resulted in the apparent violation." (Exh. A-3, p. 3; Tr. 38). If the carrier's 

disclosure meets with all the conditions and is otherwise satisfactory to the FAA, the 
apparent violation is closed with a letter of correction instead of civil penalty action 

(Exh. A-3, p. 3; Tr. 43). 

American Eagle's disclosure of February 1, 2008, known as an Initial 

Notification and considered by the agency to be prehminary in nature, stated that it 

had failed to complete a scheduled maintenance task -- sterilizing the Embraer 

aircraft's potable water reservoir (Tr. 36-37, 41; Exh. C-l). A skeptical PMI Wagster 

accepted Respondent's disclosure for the moment. He awaited the carrier's written 

report before making a "full decision" on whether to make the agency's acceptance 

permanent (Tr. 39, 63-64). 

The carrier submitted its full written report two and a half months later, on 

April 14, 2008.^ To the report were attached two work cards - the "shorter" (prerevision) version, 12-200-00, and the revised, "longer" version, 12-200-00 TR 07-77 

(Exhs. C-2 and C-3). Neither had been signed (Tr. 88-89, 92-93; Exhs. C-1, C-2, C-3, 

and R-2). Nor was the non-routine work card, which had been signed under date of 

February 1, 2008, attached (Tr. 110, 113, 116; seeExh. C-9). The carrier's report in 

fact never mentioned the non-routine work card (Tr. 113). 

In late April 2008, after a formal request to American Eagle, inspector 

Stilwell received a copy of a signed work card (Tr. 94-95, 106-09). It was not the 

non-routine work card, however. It was task card 12-200-00, TR 07-77 - the socalled longer version (Exh. C-8). This card, of course, mandated steriUzation of the 

potable water reservoir per the referenced EG, but EASI had not accomplished that 

task (Exh. C-8; Tr. 108, 143, 178; s'ee Initial Decision ("I.D."), p. 2). American 

Eagle's VDRP report in fact had acknowledged that the signoff had been 

inappropriate and that the task had not been performed.^ 

Gn May 1, 2008, following review of Respondent's written VDRP report and 

associated materials, PMI Wagster rescinded his conditional acceptance (Tr. 40, 52-

53; Exh. A-5; Exh. C-1, p. 8). In his view, the potable water reservoir should have 

been steriUzed per the EG at the time the Phase 1A/3A check had been performed 

(Exh. C-1, p. 8; Tr. 75, 77-78). Two of the conditions for VDRP acceptance, he said, 

had not been met: one, American Eagle had not taken action to rectify the 

noncompUance as soon as they learned of it; and two, the noncompliance had not 

been inadvertent (Tr. 43-46, 70-71). Inspector Wagster concluded that, after 

Respondent had learned of the failure to perform the required task, it had made a 

"conscious decision to postpone" immediate action (Tr. 46). This conduct foreclosed a 

finding of inadvertence. The carrier should have removed the aircraft from service 

upon arrival at DFW on February 1, 2008, Wagster said. At DFW Respondent had 

' Exh. C-1, p. 2; Tr. 40. The EASI technician in his individual capacity also submitted a report to the FAA 

pursuant to die agency's Aviation Safety Action Program ("ASAP"), a program paralleling the VDRP for 

mechanics and other air carrier employees. Tr. 68-69, 82. EASI, the repair station, submitted a VDRP as 

well. Tr. 68. 

^ Tr. 108, 207. The VDRP states: "On 2/1/08 a Maintenance Technician at EASI incon-ectly signed off 

completion of work card 12-200-00 without having accomplished EO EM-3800-007 Part B." Exh. C-1, p. 

1. 
the i-esources to effect the task, and was obligated to accomplish the maintenance 

then (Tr. 45-46, 53-54). 

B. Arguments of th e Partie s 

The nub of the inspectors' - and the agency's -- complaint in this matter is . 

that EASI's maintenance technician had failed to complete a scheduled maintenance 

task. The mechanic had not performed the sterilization of the potable water 

reservoir per the EG as required (Exh. C-l; Tr. 41, 70, 73-74, 143, 158-59, 206-07). 

The agency asserts that the technician failed to perform either the "shorter" (albeit 

incorrect) version or the "longer" version, ie . either the pre- or post-TR 07-77 task 

card. 

In support of Complainant's conclusion, inspector Stilwell testified that a 

Respondent official had told him that neither task card had been accomplished (Tr. 

147-48, 160). The fact that the "shorter" task card was unsigned also showed, 

inspector Stilwell said, that no sterilization had been performed under that card (Tr. 

143, 145, 160). Complainant holds that maintenance had been performed per the 

non-routine work card for .5 hours. In support, it states that the agency had 

received an e-mail showing that the non-routine work card had been completed. 

And it was that card which EASI had signed. EASI, Complainant concludes, had 

done nothing more the night of January 31, 2008 than accompHsh the task spelled 

out by the non-routine work card, i.e. service the potable water reservoir with water 

(Tr. 67, 76, 143-44). 

Respondent, by contrast, maintained that EASI in fact had accomplished 

sterilization of the potable water reservoir -- although not under the terms of the 

EG. 

Respondent had performed sterilization under the "short," or pre-revision, 

version of the work card (Exh. C-2), according to its witnesses, maintenance director 

Joseph Resnick and investigator Jeffrey Sands. The card, as noted, had not been 

signed; but Resnick testified that the maintenance technician had mistakenly signed 

off on the "long," post-revision work card - the card provided inspector Stilwell in 

late April 2008 (Tr. 178, 187-89, 195; Exh. C-8; I.D., p. 5). The mechanic's signoff on 

the long version, Resnick said, was in error, but it showed that the mechanic had 

performed the short version. EASI admittedly had not performed the task per the 

EG. But Resnick maintained that the mechanic had accomplished sterilization (Tr. 

179, 189; Exh. C-8). 

Mr. Resnick noted tha t the technician's individual ASAP had asserted tha t 

he had performed the sterilization per the short version. This document, moreover, 

had been accepted by the FAA (Tr. 177; seen. 5, p. 5). And the notation in the 

carrier's maintenance log (which had recorded the MEL deferral) stating that the 

"lav sink water needs to be cleaned" (C-16) is consistent with that conclusion, 

Resnick added; the log suggests that EASI, knowing that it had not performed 

sterilization per the EG, was indicating by that notation that it would have to 

resterilize under the EG terms (Tr. 189-91). Resnick further asserted that EASI's 

own self-disclosure stated that the short version had been performed (Tr. 177). 
Sterilization, Resnick also testified, had been performed consistent with the 

Phase lA master record card (Tr. 155). The master record card, a summary of tasks 

required every 500 flight hours under a Phase lA check, indicates that the time 

reserved for work under task card no. 12-200-00 — "SVC sterilize potable water 

reservoir" -- is 1.5 labor hours. That is the time allotted for completion of the 

shorter version (Exh. C-7; Tr. 105, 146, 180-81). EASI also had serviced the potabld 

system per the non-routine record card, Resnick said. The latter task ensured that 

the water tank was full before the aircraft resumed service (Tr. 181-83; Exh. C-9). 

The .5 labor hours hsted on the non-routine work card for servicing the system could 

have been expanded through paperwork to 1.5 hours, he said (Exhs. C-9, C-10; Tr. 

113, 147, 155-56). 

Respondent's second witness, Mr. Sands, supported Mr. Resnick's testimony. 

Sands testified that the EASI mechanic assigned the sterilization task had been 

confused by the amount of time necessary to accomplish it (Tr. 215). The prerevision method "was still available for review," Sands stated, but the mechanic's 

signoff on the work card incorporating the temporary revision was "inappropriate for 

the work he did" (Tr. 215-16). Sands acknowledged that the mechanic did not 

perform the task per the EG (Tr. 221-22). But the mechanic did perform 

sterilization by the previous method, he maintained (Tr. 216-17). The entry 

indicating that the mechanic had taken 1.5 hours to perform it is "consistent with 

the earlier method of accomphshing the sterilization" (Tr. 217). The mechanic had 

also signed a "separate non-routine work card for servicing a potable water system" 

and "that's appropriate," Sands testified (Tr. 217). Finally, Sands testified that he 

"was told [by EASI director of quality control] that that's what the mechanic said he 

did" (Tr. 218-19). 

C. Finding s and Conclusion s 

I find the violations. 

It is not disputed that sterilization of the potable water system per EG EM3800-007R4 Part B had not been performed. Each Respondent witness 

acknowledged it (Tr. 179 (Resnick); Tr. 221-22 (Sands)). Indeed, the admitted 

nonperformance was the basis for American Eagle's VDRP (Exh. C-i; I.D., p. 5 and 

n. 6 on p. 5). Thus Complainant's assertion underlying the charges was proved-' 

that American Eagle, through its repair station EASI, had failed on the evening of 

January 31, 2008 to accomplish steriUzation of the Embraer 145's potable water 

reservoir in accordance with the task card then in effect. It also is undisputed that 

the carrier operated fifty-three flights before performing the maintenance in 

accordance with the Embraer's ESM. 

As such, I find and conclude that American Eagle violated each of the 

agency's allegations. Between February 1 and 12, 2008, Respondent operated the 

Embraer 145 aircraft contrary to its operations specifications. The op specs had 

obligated the carrier to follow the ESM terms. By its actions, then. Respondent 

violated section 119.5(1) of the FARs, 14 C.F.R. §119.5(1) (^eel.D., p. l; Tr. 128). 

Further, by releasing the aircraft after failing to maintain it under the ESM, 

American Eagle violated FAR section 121.367(c), 14 C.F.R. § 121.367(c). Finally, 
faihng to follow the ESM constitutes a violation of FAR section 121.369(b), 14 C.F.R. | 

§ 121.369(b) (seeTr. 129; I.D., pp. 1-2). . | 

Respondent interposed various defenses to the charges, but none of them S 

avail it. is; 

' i j 

American Eagle claimed that EASI had in fact sterilized the potable water I; 

system, although not in accordance with the EG terms. The carrier asserted that its | 

repair station had accomplished maintenance under the "shorter," pre-revision I 

version of the work card addressing the task (Respondent Brief, pp. 13-14). While I 

the pre-revision version of the work card admittedly was no longer in effect at the I 

time of the repair. Respondent's action in choosing it had been understandable, | 

Respondent claims. EASI's web site had confused the two versions. I 

Accomplishment, moreover, had been pursuant to a method that had been valid 

httle more than a month earlier (I.D., p. 3). 

This argument is rejected. The evidence fails to demonstrate that EASI 

accomplished sterilization per the "shorter" version of task card 12-200-00. 

Respondent produced no such vahd, signed task card. Neither when the carrier first 

informed the FAA of its failure to abide the EG on February 1, 2008, nor when it 

sent the completed VDRP to the agency on April 14, 2008, did it provide evidence 

that it had performed the pre-revision version. It would be reasonable and natural 

to expect American Eagle to have submitted pertinent documentation, particularly 

in the more comprehensive and considered VDRP it sent in April, but the carrier 

had attached only unsigned work cards. In these circumstances. Respondent's 

failure to attach a signed work card suggests strongly that the underlying work had 

nat been performed. Gnly after the agency made a formal request - and nearly 

three months after the Phase lA check — did Respondent provide a signed work card, 

and that was for the post-revision task. Another indication that the short version 

had not been performed stemmed from the testimony of inspector Stilwell. He 

credibly stated that he had been informed that neither the pre- nor the post-revision 

version of the work card had been performed (I.D., p. 6). While StUwell's assertion 

constitutes hearsay, I find it trustworthy and give it credence. 

Against this background. Respondent's joos/^ Aoc explanations are suspect. It 

stretches credibility too far to endorse Respondent's contention that the signed postrevision card (proffered only after the agency's formal inquiry) shows that the prerevision task had been accomplished. Nor can I discern how the carrier's statement 

on the maintenance log that the "lav sink water needs to be cleaned" shows, as 

Respondent suggests, that some kind of sterilization had been performed, and that 

the notation signaled a need for resterilization per the EG.^ This interpretation is 

strained. It is not supported by the language in the maintenance log. 

Complainant's assertion that the quoted language simply records the need to 

sterilize the system - with the necessary impHcation that sterifization had not been 

^ Exh. C-16; Tr. 224-25; I.D., p. 6. At the hearing the question arose as to the fmal word in the quoted 

phrase. The parties agreed by communication dated May 21, 2010, that the word is, as stated in the text, 

"cleaned." 
performed -- is far more persuasive.^ Further, the Phase lA master record card 

cited by Respondent, which noted completion of work card 12-200-00 in 1.5 labor 

hours (Exh. C-7) - the time estimated for performance under the pre-revision work 

card - was not attached to the VDRP. Gne would expect that, as in the situation 

with the task cards, support for such a claim would have been made when 

Respondent submitted the VDRP on April 14. But the card was not sent to the 

agency until some time in late April (Exh. C-7; Tr. 102-05). 

The evidence shows that EASI on January 31, 2008 accomplished only the 

non-routine work card. It filled the tank with water under a procedure designed to 

take one-half hour (Tr. 67, 76). Respondent, I find, had failed to accomplish any sort 

of sterilization of the potable water reservoir prior to performing the task on 

February 12, 2008. 

Nor was American Eagle's deferral per the MEL an acceptable alternative to 

performing the task. Deferral simply was not an option. The ESM, whose 

provisions govern, did not permit deferral of maintenance of the aircraft's potable 

water reservoir (Exh. C-l, p. 8). 

Finally, 1 consider the question of whether it was proper for the agency to 

reject Respondent's VDRP filing. This action, of course, opened the door to a civil 

penalty action, while acceptance of the filing would have foreclosed it (^'eel.D., p. 4; 

Tr. 82-83). I find that the agency exercised lawful discretion in taking this action. 

Preliminarily, I agree with Judge Benkin, who has discussed this issue, that 

the discretion of an administrative agency in deciding whether to initiate an 

enforcement action generally is very broad, but not absolute. When the FAA, as 

here, has invited entities subject to its jurisdiction to "confess" in return for more 

favorable treatment, considerations of fairness and honest dealing suggest that the 

agency should be held to its end of the bargain. This idea in fact finds expression in 

the Administrative Procedure Act ("APA"). The APA prohibits federal agencies such 

as the FAA from acting in a manner that is arbitrary and capricious. ^ Applying this 

standard to the case at hand, I find that it was not arbitrary and capricious for the 

FAA to reject American Eagle's VDRP petition. The agency's opinion that 

Respondent's conduct in failing to take immediate action once it learned of the 

situation, and in postponing the required fix, prevented acceptance of Respondent's 

fifing, was reasonable. Nor was it arbitrary or capricious for the agency to conclude 

that a finding of inadvertence was foreclosed by Respondent's behavior following its 

discovery of EASI's nonperformance (seel.D., p. 5). 

All other arguments made by Respondent have been considered and rejected 

without further comment as lacking merit. 

Tr. 163-64. Moreover, the maintenance log was not attached to the VDRP. Tr. 119-20. 

^ 5 U.S.C. §706(2)(A). See discussion per Judge Benkin in Boston-Maine Airways Corporation, Order 

Granting in Part and Denying in Part Complainant's Motion for Summary Judgment, 2208 WL 3485802 

(August 8, 2008), pp. 2-4. 
10 

III. Penalty 

The FAA seeks a substantial civil penalty in the amount of $47,400. It bears 

the burden of proving the appropriateness of this amount. Phillips Building Supply, 

FAA Grder No. 2000-20 (August 11, 2000), p. 8. 

In support the agency asserts that an appropriate sanction can be derived 

from the FAA's Sanction Guidance Table, which may be found in Appendix B to FAA 

Grder No. 2150.3B (Exh. C-15). The Sanction Guidance Table is a basis for setting 

out the sanction policy that the Administrator intends to establish through the 

adjudication of individual cases. It reflects the Administrator's general views about 

the civil penalty ranges that are suitable for different types of violations. The policy 

is not binding. Nor does it reflect merely a fixed mathematical computation. It 

constitutes "useful guidance" in the exercise of the Administrator's broad discretion 

to assess a civil penalty. 

Administrative law judges ("ALJs") are not agency personnel and therefore 

are not expressly required to follow the guidance of Grder No. 2150.3B. The 

guidelines nonetheless must be respected as an expression of agency sanction policy. 

The Administrator has asserted the power to impose the agency's sanction pohcy if 

an ALJ assesses a civil penalty that is not consistent with the policy. See discussion 

in Folsom's Air Service, Inc., FAA Grder No. 2008-11 (November 6, 2008), pp. 12-14; 

Warhelow's Air Ventures, Inc., FAA Grder No. 2000-3 (February 3, 2000), p. 20. 

The Sanction Guidance Table contains ranges of penalty amounts deemed 

appropriate for each category of violation. The determination of penalty also 

considers the size of the carrier and, in this case, the agency's view that the 

violations were intentional and not inadvertent. Complainant notes that the failure 

to correct spanned eleven days. Passengers and crew did not have access to 

sterilized water in the lavatory sink during this period. This type of noncomphance. 

Complainant argues, "demands the maximum sanction" (Complainant's Brief, pp. 

29-30). 

Respondent made no argument directly on this issue. 

I cannot endorse the agency's recommendation. The proposed fine simply is 

disproportionate to the offense. There is no evidence suggesting that the matter 

touches on aircraft safety. It is not so grave as that. Nor did Respondent's inaction 

cause passengers or crew to assume an unreasonable risk to health and safety. The 

untreated water in the system had been drained. Passengers and crew simply were 

deprived of the use of the lavatory sink. A second reason that I cannot support the 

suggested assessment is because Complainant provided no mathematical basis for it. 

The agency did not explain specifically how its proposed penalty was derived. 

Perhaps the derivation is apparent to the FAA, but it is not apparent to me. I 

cannot agree to assess the amount urged without supporting evidence of this nature. 

Complainant is indeed correct that Respondent's failure to perform the 

proper maintenance should have been addressed at the carrier's earhest 
11 

opportunity. The defect should have not have been allowed to linger in violation of 

the aircraft's ESM and the carrier's CAMP and op specs. But those considerations 

fall short of necessitating a civil penalty in the amount suggested. 

I find that a civil penalty in the amount of $20,000 will adequately punish 

American Eagle for its failure to comply with the FARs charged in the Complaint. 

The amount will also, 1 find, suitably deter Respondent and similar entities from 

such violations in the future. 

In view of the foregoing, I find and conclude that Respondent American Eagle 

Airlines, Inc. has violated 14 C.F.R. §§119.5(1), 121.367(c), and 121.369(b) as 

charged in Complainant's Complaint. I further find and conclude that Respondent is 

liable for a civil penalty assessment in the amount of $20,000.'° 

lard Cl^GoodwIrr 

''Administrative Law Judge 

Attachment - Service list 

'° This decision may be appealed to the Administrator of the FAA. The notice of appeal must conform to 

sections 13.210, 13.211(e) and 13.233 of the Rules of Practice, which require that a notice of appeal 1) be 

filed not later than 10 days (plus an additional five days if mailed) from the service date of this decision, 

and 2) be perfected with a written brief or memorandum not later than 50 days (plus an additional five, if 

mailed) from the service date of this decision. The notice of appeal and brief or memorandum must either 

be a) mailed to the Federal Aviation Adminisfration, 800 Independence Avenue, S.W., Washington, DC 

20591, Attn: 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 

Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Washington, D.C. 20591, Attn: Hearmg Docket 

Clerk, AGC-430. A copy of the notice of appeal and brief or memorandum also must be sent to agency 

counsel. Service upon the presiding judge is optional. 
FAA Docket No. CP09SW0006 i 

(Civil Penalty Action) . t' 

SERVICE LIST 

ORIGINAL & ONE COPY ii 

h 

Federal Aviation Administration li 

800 Independence Avenue, S.W. | ? 

Washington, D.C. 20591 j | 

Attention: Hearing Docket Clerk, AGC-430 | | 

Wilbur Wright Building—Suite 2W1000' I; 

ONE COPY ? 

American Eagle Airlines, Inc., Respondent ; 

ATTN; Peter Bowler, President 

1700 W. 20* Street, MD 1200 ;: | 

P.O. Box 612527 1 

DFW Airport, TX 75261-2527 ; •! 

Francis C. Heil, Respondent's Counsel ,;| 

American Airlines, Inc., Legal Department 

P.O. Box 619616, Mail Drop 5675 3 

DFW Airport, TX 75261-9616 

TEL: 202-496-5642 

FAX: 202-496-5660 

Rena M. Price, Complainant's Counsel 

Safety Enforcement Branch, Office of the Regional Counsel 

Southwest Region, ASW-7E1, RMP 

Federal Aviation Administration 

2601 Meacham Blvd., Room 663 

Fort Worth, TX 76137-0007 

TEL: 817-222-5068 

FAX: 817-222-5945/5092 

The Honorable Richard C. Goodwin, Administrative law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room E12-320 

Washington, DC 20590 

TEL: Attorney-Advisor 202-366-2139 

Legal Assistant 202-3 66-5121 

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.