SERVED MAY 19, 2010 

U.S. DEPARTMENT OF TRANSPORTATION -p] QFIH ASPORWION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

P ""••'!'7 0 

IN THE MATTER OF 

AIRTRAN AIRWAYS, INC., 

Respondent. 

DOCKET NO. CP10SO0002 

(Civil Penalty Proceeding) 

DMS NO. FAA-2010-0193 

ADMINISTRATIVE LAW JUDGE'S ORDER DENYING MOTION 

FOR DECISION ON THE PLEADINGS AND GRANTING 

MOTION FOR HEARING ON SANCTION ONLY 

In this case, the Federal Aviation Administration ("FAA" or 

"Complainant") has sought to recover a $15,000 civil penalty from the 

Respondent, AirTran Airways, Inc. ("Respondent" or "AirTran"). The FAA 

has charged AirTran with violating the hours-of-service restrictions 

applicable to the use of one of its flight attendants. Those restrictions are 

found in §121.467 of the Federal Aviation Regulations ("FAR"), 14 C.F.R. 

§121.467. 

The Respondent filed an answer to the FAA's complaint. The answer 

admitted all of the factual allegations of the complaint but interposed an 

affirmative defense. The affirmative defense claimed that the civil penalty 

sought by the FAA was "excessive and unwarranted." The Respondent also 

requested an administrative hearing. The case was assigned to me for the 

purpose of providing the hearing sought by AirTran and issuing an initial 

decision based on the evidence acquired during the hearing. 

The FAA then filed a motion for a decision on the pleadings or, in the 

alternative, for a determination that the hearing would deal only with the 

issue of the appropriate amount of the civil penalty to be assessed. The 

Respondent submitted an opposition to the motion. The Respondent's 
opposition conceded that on the merits of the complaint's claim that AirTran 

had violated the hours-of-service rules with respect to the flight attendant 

identified by the FAA, there were no issues of material fact to be decided. 

AirTran in effect agreed that it had required the flight attendant to exceed the 

limitations in §121.467 of the FAR. However, AirTran also argued that the" 

($15,000) sanction sought by the FAA was excessive, and that the agency 

improperly elected to use its authority to exact a civil penalty for the 

violation. "Respondent believes that the factors traditionally relied upon by 

Complainant to arrive at an appropriate sanction in matters similar to the one 

before this Court call for the imposition of a Letter of Correction or a civil 

penalty much less than the $15,000 sought." 

The Complainant's motion papers purport to show that the amount of 

the penalty it has sought was calculated in accordance with FAA Order 

2150.3B, effective October 1, 2007. The FAA points out that Order 

2150.3B contains guidance on the matter of sanctions for use by FAA 

employees involved in the investigation and prosecution of enforcement 

cases. It also notes that in Folsom's Air Service, Inc., FAA Order No 2008-

11 (November 6, 2008), the Administrator held that Order No. 2150.3B 

reflects the Administrator's general views about the civil penalty ranges that 

are appropriate for different types of violations. 

True as that may be, it remains clear that administrative law judges 

are not bound by the contents of Order 2150.3B,' and that the Respondent is 

entitled to a hearing on the question whether $15,000 or some lesser sum is 

the appropriate sanction for the violation it committed. This means that 

there are disputed issues of material fact that must be plumbed in order to 

arrive at the appropriate sanction. It follows that, although the FAA's 

motion to limit the hearing to the issue of sanctions must be granted, there 

remains an issue of the appropriate sanction that can be decided only after 

the hearing on that issue is held. 

I so ruling, I wish to make it clear that the only issue remaining is the 

amount of the civil penalty to be assessed. It is well-settled that the FAA's 

determination to institute a civil penalty proceeding rather than employing 

some lesser form of sanction (such as a letter of correction) is a matter 

' See Eric Salcido. 2008 DOT Av. Lexis 16 (initial decision); Lambton Doors. FAA Docket No. 

CP03SO0013 (May 7, 2004) (initial decision); Airways Freight Corp.. FAA Docket No. CP990021 

(December 29, 2000 (initial decision); Stebbins Aviation. Inc.. FAA Docket No. CP00SW0014 (August 30, 

2004 (initial Decision). 
committed to the agency's sound discretion. It cannot, and will not, be 

reviewed by an administrative law judge conducting the hearing under the 

rules in Subpart G of Part 13 of the FAA's regulations. Offshore Air, FAA 

Order No. 2002-7, 2002 WL 1042304 at 1 (Apr. 16, 2002); Glenn E. Wvatt. 

FAA Order No. 92-73, 1992 WL 733220 (Dec. 21, 1992); Boston-Maine " 

Airwavs Corp., FAA Docket No. CP085, 2008 WL 3485802 at 2 (Aug. 8, 

2008) (initial decision). For this reason, evidence regarding the FAA's 

decision to use its civil penalty power rather than some other sanction will 

not be relevant in the upcoming hearing. 

For the reasons set forth above, the FAA's motion for decision on the 

pleadings is denied, and the FAA's motion to limit the hearing to the issue of 

the appropriate amount of the civil penalty to be assessed is granted. 

IT IS SO ORDERED. 

f ' 

Isaac D. Benkin 

Administrative Law Judge 
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-430 

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 

Rashawn 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.