07/18/2012 13:52 FAX 2024835142 FAA 

P NNACI.F. 

1\ I 11. L I r~ I· '·, (. (I 1'\ P. 

July 17, 2012 

Office ofthc Clerk 

United StaLes Court of Appeals for the Sixth Circuit 

540 l~otter Stewmt U.S. Courthouse 

100 E. Fifth Street 

Cincinnati, Ohio 45202-3988 

Re: Petiti\)ll tor Rcview 

FAA Case No. 200780950331 

Dear Clerk: 

+ OMS 

20 q: 18 

~001/023 

F'lonaclc AirliMs Corp. 

Legal Oepartmenl 

1689 Nonconnah Blvd. 

Sulze 111 

Memphl$, TN 38132 

901.348.4100 

Fax 901.346.2493 

Enclosed please find an original and one (1) copy of Pinnacle Airllne Tnc. 's Petition for 

Review in the above-referenced matter. Please file stamp the copies and retum to me in the 

enclosed self-addressed stamped envelope. · 

If you need tinther inton:nation, please feel free to contact rnc. 

Sincerely, 

Vice President of Labor Relations 

WCH/krp 

Enclosures RECEIVED 

JUl l 8 2012 

HEARING DOCKET 
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UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT 

Pinnacle Airlines, Inc., ) 

Petitioner ) 

v_ ) 

) United States Department of Transportation ) 

Federal Aviation Administration, ) 

) 

Respondent. ) 

-- --·-·····-·-·-· ... . .. . . -... 

PETITION FOR REVII£W 

Pinnacle Airlines, Inc., hereby petitions the court for review of the Order of 

the Federal Aviation Administration, entered on the 22 day of May, 2012, Order 

No. 2012-2 before such agency, which order assessed a Two-hundred thousand 

dollar ($200,000.00) civil penalty against Pinnacle Airlines, lnc. for violations of 

certaiu Federal A viaii~n Regulations pertaining to drug and a.1coho1 lesting 

regulations. 

This the I 7th day of July, 2012. 

k~ 

AIRLINES, INC. 

W. Chris Harrisou TN Bar# 18689 

Attomey for Petitioners 

40 South Main St. Ste. 1400 

Memphis, TN 38103 

CHanison@pncL com 

141002/023 
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CERTIFICATE OF SERVICE 

The undersigned certit1es that a true and correct copy of the foregoing l1as 

be sent via FedEx to the following: 

Hearing Docket Clerk 

Federal Aviation Administration 

AGC-430 

Wilbur Wright Building- Suite 2WI 000 

600 Independence A venue, S. W. 

Washington, D.C. 20591 

And by e-mail and regular U.S. Mail to the foUowing: 

Michael Huerta 

Acting Administrator 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Laura Ponto, Attorney 

Enforcement Division/ AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence A venue, S.W. 

Washington, D.C. 20591 

Laura.Ponto@faa.gov 

This the 17rh day of July, 20'12. 

~ 003/023 
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UNITEl> STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASIIINGTON, DC 

In the Matter of: PINNACLE AIRIJNES, INC. 

FAA Order No. 2012-2 

Docket No. CP09S00002 

l;DMS No. FAA-2009-01801 

Served: May 22, 2012 

DECTSlON AND ORDER2 

I. Introduction 

Respondent Pinnacle Airlines, Inc. (Pinnacle), a regional airline providing service for 

~ 004/023 

Northwest Airlines ai1d Delta Airlines, has appealed3 the written initial decision of 

Administrative Law Judge (ALJ) Isaac D. Benkin. 4 Thu ALJ assessed Pinnade a $200,000 civil 

pt:malty for 19 violaLions of certain drug and alcohol t~sting regulations applicable to air carri~rs. 

On appeal, Pinnacle is contesting one of the ALJ's findings of violations- i.e., the 

I 

finding that Pinnacle violated 14 C.F.R. § 121.457(a) and Part 121, Appendix I,§ V.A.l (2007) 

by hiring a mechanic before conducting a DOT pre·cmployment drug test and b~fore receiving 

1 Materials filed in I he FAA Hearjng Dl)Ckl:t (.except for materials filed in security cases) arc at'iO 

availaole fol' viewing at the following Jnternet a.ddruss: Wl~'(!.rr:~wlation~',g_ov. 

~The Adminif.ltmtor's civil penalty dcci::dons, along with indexes of the decisions, the rule:~ of 

practice, and other infonmttion, arc availabl~ on the lntcrncl at the following addrc::;~: 

www.faa.gov/ctboutloffice orglheadquarlers_offices/agc/po(_'-ldjudication/AGC400/ 

Civil _Penalty. In addition, Thomson Reuters/WesT. Publishing publishes Fc~cr~l Avi_@.tionDecisio~\~. 

Finally, the dcci~ions arc available through LEXIS (TRANS library) and WestLaw (FTRAN-FAA 

database). For additional information, see the Web site. 

3 Pinnacle has requested oral argument This requc:>l is denied, as oral argument is not necessary 

for proper disposition of' Pinnacle"s appenl. 

4 A copy of the AU's decision is attached. 
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ve1ified negative d111g test result::;, 

The rernainder of Pinnacle's appeal involves the sanction. Specifically, Pinnacle argues 

that the civil penalty should. be reduced from $2oo;oo(> to $54,0005 for the following reasons: 

• The ALJ cn·ed in asse,<;sing a maximum civil penalty for violations that involved a 

low material risk of harm to the flying public. 

• The ALJ erred in findi11g that Pinnacle's remedial efforts did not wan-ant a lower 

civil pcr1alty. ' 

• The ALJ ened in relying on infonnation not in the record.· 

• The ALJ erred in holdingthat the maximum civil penally for each violatio11 was 

$25,000, because Complainant asserted in the complaint that it was seeking a civil 

penalty l.Hldcr 49 U.S.C. § 4630l(a)(5), which, in conjunction with 14 C.P.R. 

§ l3.305(d), authorizes a maximum civll penalty of unly $11,000 per violation by 

a small business concern. 

Thls decision aft1nns the civil penalty assessed by the ALJ. 

H. Background 

A. The DOT/FAA Anti-Drug }tnd Alcohol Misuse Prevention Programs 

The Ornnibus Transportation Employee Testing Act of 1991,49 U.S.C. §§ 45101-45107, 

requires drug and alcohol testing of safety-sensitive transportation employees in aviation and 

other transportation industries. Under the Act's autholity, the Department of Transportation 

(DOT) promulgated regulations requiring pre-employment, random, and post-accident dmg and 

alcohol tests for employees throughout the transportation industry. 49 C.P.R. Pmt 40. These 

regulations addJ'css who must conduct drog and alcohol tests, how to conduct those tests, and 

what procedures to usc when testing. 

In addition, the FAA promulgated drug and alcohol testing regulations specific to 

aviation. In 2007, the drug and alcohol testi11g regula\ions applicable to air c1:trri(jr~ operaling 

s rinnaclc does not explain in its appeal briefthe reasoni11g behind its selection or$54,000 as the 

amount to whkh the penalty should be reduced. 

2 
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under Pa1t 121 were l(mnd in Pmt 121 and Part 121, Appendices 1 (drug testing program) and J 

(alcohol misuse prevention program). Section 121.4576 required each certificate holder or 

operator operating under Part 121 to test each of its employees who performed a safety-sensitive 

function for ce1tain dmgs in accordance with the standards forth in Part 121, Appendix L Air 

carriers operating tmder Part 121 also were required to test employees performing safetysensitive tun.clions for alcohol misuse in accordance with the standards set forth in Appendix J 

under Section 12l.459(b).7 

Regarding pre-cmploym.ent drug testing, Appendix 1 provided that no employer may hite 

any in.clividtlal ~o~ a .s~fety-:sensitivc function<?~ trq_nsfer ~ ~mployee from a nonsafety-sensitive 

to a safety-sensitive function unless the employer first conducted a pre-employment test and 

received a verified negative drug test result for that individual. 14 C.F.R. Pmi 121, Appendix I, 

§§ V.A.1 8 and V.A.2<J (2007). 

6 Section 121.457(a) provided, "Each certificate hold\:r or operator shall test each of its 

employees who performs a funclion listed in appendix l to this part in ac~,;ordance with that appendix." 

14 C.F.R. § 121.457(a) (2007). 

In 2009, the drug and alcohol testing rugulations for Part 119 certificate hl'lldcr::; w~o:ru 

t:c..msolidated in a new 14 C.F.R. l

1<n1 120. 74 Fed. Reg. 22563 (May 14, 2009). The requirements of 

~ 121.457(a) arc now set forth in the Federal Aviation Regltlations (FAR) at 14 C.F .R. § 120.35. 

7 Section 121.459(b) provided, "No certificate holder :shall use any person who rnct:ts the 

dclinition of covered employee in appendix J to this pmi to perfmm a safety-sensitive function listed in 

tha.t appendix unless such person is suqject to testing for alcohol mis\ISe in accordance with the provision~ 

of appendix J." 11 C.F.R. § 121.459(b) (2007). The requirements of this section are now set forth in 

14 C.P.R. § 120.3?. 

ll Appendix 1, § V.A.1 provided, "No employer may hire tlny i11dividual for a safety-sensitive 

function listed in section Ill of this appendix unless the employer first conducts a pre-employment test 

and receives a verified negative drug test result for that individual." This requit·emcnt now appears at 

14 C.F.R. § 120.1 09(a)( I). 

0 Appendix 1, § V.A.2 provided, "N<) employer may allow an individual tn tnlnsfer from a 

nt)rJ$afety-scnsitive to a safety-sensitive func~ion unlcRA t.hc employer first conducts a pre-employmcnl 

test and rcct:ives a verified negative drug t~st result for the individual." This requirement now appears at 

14 C.P.R. & 120.1 09(a)(2). . 

3 
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Regarding both random drug and alcohol t0sting, Appendix I and Appendix J provided 

that an employer must use a random s~lection process in which "each covcnxl employee shaH 

have an equal chance of being tested each time selections are made.') 14 C.F .R. Part 121, 

Appendix I, § V.B.S, 10 and Appendix J, § lll.C.S (2007).1l 

B. Allegations in this Case 

The FAA cQndLtcted an inspection of Pinnacle's antidmg and alcohol misuse prevention 

programs in September 2007 10 determine whether Pinnacle was in compliance with the 

pc1iinent regulations. FAA inspectors discovered discrepancies which fon11ed the ba.sis of this 

action. 

Cornplainan.t tiled a coniplaint alleging that Pinnacle had: 

(a) hiTed two employees for safety-sensitive positions (a mechanic and an aircran 

dispatcher) before Pinnacle had received :'erificd negative drug tests for the employe~s; 

(b) transfened sixteen employees into safety·scnsitive positions (ground security 

coordinators) before Pinnacle had received verified negative pre-employment drug test 

results for the employees; and 

(c) failed to place one employ~e (an aircraft dispatcher) into random pools for both drug 

and alcohol testing. 

Complainant alleged that Pinnacle violated 14 C.P.R.§ l21.457(a) (2007); 14 C.P.R. Palt 

121, Appendix T, § V.Al (2007); 14 C.F.R. Part 121, Appendix I,§ V.A.2 (2007); 14 C.F.R. 

Part 121, Appendix I,~ V.13.5 (2007); and 14 C.P.R. Part 121, Appendix J, § III.C.5 (2.007). 

Complainant sought a $200,000 civil penalty, etsserting that Pinnacle Wf.lS subject to a 

10 Section § V.B.5 of Appendix I provided in pet1inent part, "Under the se:lc~.:tion process used, 

each coverc~i employee shall ~ave <:ln equal chance of being tested C;Jach time selections are made." This 

t;landard currently appears at 14 C.F.R. § 102.1 09(b)(5). 

n Section § III.C.5 of Appendix J provided in pertinent part, ''Under the selection proccs~ used, 

each covered employ~e shall have an equal ch<-lnce ofbc;-ing tested each time selections are made.'' This 

standard cun·ently appea1·s at 14 C.F .R. § 120.217( c )(5). · 

4 
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civil penalty of up to $25,000 for each violation. The FAA has the authority to assess a civil 

penalty of up to $25,000 per violation against a person (other than an individual or small 

business concern) under 49lJ.S.C. § 46301(a)(l); however, in its complaint, instead of 

. referencing 49 U.S.C. § 46301(a)(l), Cornplainant cited Section ~6301 (a)(5), 12 which in 

coqjunc1ion with the inflation-adjustme11t l'egulation. 14 C.F.R. § 13.305(d), authorized tho FAA 

to assess a civil penalty of up to $11,000 per alleged vi<>lation against an individual or small 

business concem. 

Alth()ugh Pinnacle denied that it had committed these violations in it~ Answer, at the 

hearing Pinnacle only contested the alleged violations regarding the failure to receive the verified 

negative pre-employment drug test results oftwo.employees. Pinnacle's attomey conceded that 

the other violations had OCCUlTed, ascalleged. (Exhibit A-1. Stipulation ofFacts dated Augt1St 19, 

2009.) 

JII. The Initial Decision 

The ALJ held that 19 violations occurred, as alleged in the complaint, and rejected 

Pinnacle's arguments that the $200,000 civil penalty sought hy Complaimmt was too high. 

The ALJ r0jected Pinnacle's arguments concerning sanction mitigation. Pinnadu had 

argued that its employees were subjected to the company•s non·D01'pre-employmen1 drug 

testing prior to hiring for, or lransfcn-ing to, a safety-sensitive function, and therefore, the 

violations regarding DOT pre-employment tcsling were only technical in nature. The ALT found 

that the evidence was lnsullicient to ptove that Pinnacle's testing program wa~ adequate under 

the regulations, and fm1:her ''the notion that a carrier's failure to comply with a regulation· 

-------· -- 12 49 U.S.C. § 1630l(a)(S)(A) provides that "[ajn indivi~lual (except an airman serving a~ an 

airrn:-m) or small busincs8 concem is liabJe to the Governmet~t for a civil penalty of not more than 

$10,000" ror violations of listed sl:-:tltltory provisions or· regulations issi1ed under those provic:ions. 

5 
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because it was doing something else 'just as good' is anathema to the rule of law in ~1 regulated 

industry." (Initial Decision at 5.) Ile concluded that Pinllacle's use ofits own drug testing 

program fhr the employees involved in this case was entitled to little weight in assessing the civil 

penalty. (Initial Decision at 6.) 

Pinnacle also argued that it had sent the ernployees in question lor training before they 

performed a11y salety~sensitive function~ and it received verified negative test results befor~ any 

of these employees were assigned to safety-sensitive duties. However, as the ALJ noted in his 

decision, the Adtninistrator specifically decided that testing al1Cl rhe receipt of ncgati ve lest 

results rnus! precede the date of hiring, as opposed to the date on which job perfonnance 

bcgins.

13 

r lencc~ he was not persuaded by this argument regarding trainillg afi.er the date of hire. 

The ALl also rejected the argum~nt that the violations we.r.e inadvertent, writing as 

follows: 

.lf lt [Pinnacle] had taken such precautions and one or two transferred employees had 

"slipped through the cracks" and had begun training a day or so before the negative test 

result was received, we might perhaps have;, a basis for considering the can-ier to have 

committed one or two "inadvertent'' violations. But we simply cam1ot reach that 

conciu~ion, either as a matter of logic or regulatory discretion, when the selfsame 

violation turns up sixteen tinws. 

(Jnilial Decision at 10.) 

Th~ ALJ acknowledged that corrective actions may at times be mitigating, but he rejected 

Pinnacle's arguments that it had taken corrective actions that warranted a lower civil penalty. 

Phmacle had introduced evidence that it had replaced its computer program for tracking 

compliance with tlw lesting requirements~ had introduced a system of auditing compliaJ1ce, had 

13 

H C.P.K. l)art 1.21, Appendix I, § V.A.l (:2007) (emphasis added) provided: "No employer 

may hire any individual for a safety-Mmsitive function ... unless lhe employer first conducts a pteemployment test and receives a verified negative drug test result for that individul:ll." 
07/19/2012 13:54 FAX 2024935142 FAA -+ OMS ~010(023 

introdu~ed a new computer~based training program for managers, etc. The ALJ found that 

Pinnacle had not carried its burde11 of proving that its corrective actions were suilicicnt, speuific 

or swift as required in the case law. (Initial Decision at 11-12.) ~ 

The ALJ rejected Pinnacle's argument in its post-hearing brief that it should be treated as 

a small b11siness com;ern to which a lower maximum civil penalty is authorized ll!ldcr the 

Federal aviation statute~ bccaus~ there was no evidence that Pinnacle is a small business. He 

wrote that a $25~000 civil penalty per count is applicable to Pinnacle under 49 U.S.C. 

§ 46JOl(a)(5)(A). (Initial Decision a116.) 

The ALJ found that Pinnacle's vic)lation. history. consisting of 11vl:) civil penalties ranging 

fl·om $5,000 to $27,000 between 1997 and 2006, for violati()ns~oftesting regulations, constituted 

an aggravating factor. He found that the past civil penalties l1ad not been high enough to induce 

Pinnacle to comply with the regulations and he "llope[ d] lhat, upon collection of a $200;000 civil 

penalty, the "I:"AA will have finally gotten this carrier's attention." (Initial Decision at17.) 

IV. Pinnncle's At"guments on Appeal 

Each of Pinnacle's argurnents for reducing the $200,000 civil penalty is discussed below. 

A. Allegedly Incorrect Hire Date 

Mechanic Stewart filled out an application with Pinnacle and went to take his drug lest on 

September 29, 2006. (Tr. 220.) At some point during or after the inspection of Pinnacle in 

Scpkmber 2007, Pinnacle provided Complainant with an "Employee Action Notice" indicating 

that on September 29, 2006, Pinnacle J1ircd Stewart Lo perform maintenance or preventive 

maintenance as an A&P [Airframe & Poweiplant] mechanic. (Exhibit A-3; Tr. 99.) Stewart and 

a Pinnacle manager had each signed the notice. In addition, there was testimony at the hearing 

14 

The ALJ r~jected Pinnacle's other arguments in mitigation as well but, due to the natt1rc of the 

appeal .. there is no need lo discuss those aspects ofthe initial <kdsion. 

7 
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that the ~ire date for Stewart entered in Pinnacle's computer system was September 29, 2006. 

(Tr. 221.) Pinnacle received Stewart's veri1ied negative DOT dp.1g test results for Stewart on 

September 30, 2006. (Ex. A-13; Tr. 221.) Hence, Complainant concluded, Pinnacle violated tl1e 

regulations in that it did not receive the verified negative drug test result until the day after 

Stewmi was hirtJd. 

Pilmacle argues, however. that there was no violation because September 29, 2006, was 

not the conect hire date. Pinnacle's Vice President of People, Mary Ann Morrow, testified that 

the hire date tor Stewaii was aclually October 16, 2006, the day he started work. (Tr. 222.) 

Ms. Morrow testified that September 29, 2006. should not have been the hire date entered in the 

system because Pilmacle would not have pllt someone to work the same day that the person filled 

out his or her application and was interviewed. (Tr. 221.) According to Ms. Morrow, an error 

must have been made by the Human Resources clerk, who picked up the date from the 

application. (/d.) According to Pinnacle, "[u]nder Pinnacle's policies at the- time, it [wasJ highly 

lmproba?Ic that Stewart was extended an offer of employment on the same day be filled out his 

' ' 

application, because any otrcr of employment would have been conditional upon his passing a 

criminal background check and DOT drug test." (Appeal Brief at 7.) 

The ALJ indicated that Ms. Morrow was not persuasive because she had no personal 

knowledge of when Stewart was hired. Nor did she provide any documentation to show that 

Pinnacle's records were in error. TheA LJ pointed O\.lt that Pi11nacle did not call to 1<:.1sti1y at the 

hearing either Stewart, the manager, or the htu11an resources clerk who purportedly made the 

mistake, even though all these individual~ were under Pinnacle's contn)l. (Initial Decision at 4.) 

Th~:: ALJ cow~c1ly resolved this issue. Pinnacle's p<)licy may have been to receive 

verified negative drug tests before hiring or transfening employees, but there. is no evidence that 

8· 
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it followed that policy. The hire date, as indicated on the Notice of Employinent, which was 

sigmxl by both Stewart and a Pinnacle n1anager, shows that there was not merely a computer data 

entry error. Hence, there is no reason to reverse the ALJ' s finding of a violation involving 

Stewart. 

Pinnacle argues that if a violation is found, then only a minimum civil penalty should be 

assessed because Pinnacle received the negative drug result weeks before Stewart started work, 

and therefore, any violation was no lTiore than a "mere paperwork" violation. Pinnacle cites no 

aulhority ii1dicating that a violation is less egregi9us if the employee did not yet start work. 

B. Statutory Authority for Civil Penalty 

Pinnacle argues on appeal that the ALJ erred in assessing a civilpenalty under a statute 

that Complainant did not assert in the complaint. Complainant alleged in the complaint that 

Pinnacle was subject to a civil penalty for its violations under 49 U.S.C. § 46301 (a)(5), whlch 

Complainant alleged authorized a civil pcmt.lty not exceeding $25,000 per violation. However, 

Section 4630l(a)(5), in conjunction with the inflation-adjustment provision in 14 C.F.R. 

§ 13.305(d), authorizes an a'5sessmcnt of up to $11,000 for violations of listed statutory 

provisions against an iridividual or small busi11css concern. Section 4630I(a)(5) is not applicable 

Lo large air carriers. The ALJ was mistaken in writing that Section 46301(a)(5) was the authority 

for assessing Pinnacle a civil penalty of up lo $25,000 per violation. 

Complainant's position·is that Pinnacie ls a large air carrier, not a small businlJs.s concern. 

(Reply Brief at 29.) Complainant explained that it actually intended to cite 49 U.S.C. 

§ 46301 (a)(l), 15 which authorizes an assessment of up to $25,000 against a person, including a 

15 

In pertinent part, 49 U.S.C. § 4630I(a)(I) Jmwides: "A person is liabJeto the lJnitcd States 

Govemment fnr Cl civil penalty of not more 1·han $25,000 (or $1,100 if the person is an individual or smal1 

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large air carrier, for certain statutory and rcgu.latory violations, or a maximtlm of $1,100 for an 

individual <..n· a small business concem .. 16 

The failure on the part of Complainant a,nd the ALJ to cite the com~ct statutory provision 

as the a1.1thority for assessing $25,000 per violation was hannless error. The authority to a:-;sess a 

civil penalty of up to $25,000 per violation did exist in 49 U.S.C. § 4630 l(a)( 1). Pinnacle was 

on notice that it was subject Loa civil penalty of up to $25,000 per violation, because although 

Complainant had cited the wrong statutory provision in the Comp1aint, it had stated con·ectly the 

extent of its authority to assess a civil penalty against Pinnacle. ! 

C. Non-DOT Drug Tc.stin~tPrognm 

Pinnacle admits that it violated the regulations by transferring 16 of its employees trom 

business concern for.violating" ce1tain statutory provisions of the Federal aviation act and n..:gulal.ions is~ued thereunder. " .:, 

JG Pinnacle also argues that Complainant Jailed to show that it was a large air carrier that would 

be su~jcct to a $25,000 civil penalty per violation. Actually, small business status was an affirmative 

defen::;C;) that Pinnacle had the burden of proving. J!l C.F.R. § 13.224(c) (party who has asserted 

afflnnative defense has the burden of proving it). Pinnacle did not assert that it was a small business, let 

alone prove it. · 

For the definition of small bu!$iness concem, see 15 U .S.C. § 632. The maximum number of 

employees for a small business concem in scheduled air passenger transpmtation is 1500. 13 C.F.R. 

§ 121.20 I (specifically, Subscctor 481, Air Transportation; 4R 111 Scheduled Air "Pass~nger '1'ransportation). 

The record docs not. c<.mtain evidence regarding how rnany employees Pinnacle had in 2007, 

when the in1>pection was conducted. However, sl.atements ma.de by Pinnacle'.-:; attornc:y at the hearing, 

although not evidence, appear to indicate tl1at Pinnacle was not a small business concern in 2007. 

Pinnacle's attorney stated in his opening statement that Pinnacle had I 000 ground handlers scattered in 30 

cities. (Tr. 80.) He stated that Pinnacle has 30 informatioii technology (TT) employees. (Tr. 87.) Also, 

Pinnacle's publicly filed 2007 Annual Report, p. 11, available on the Internet but not. in(,;luded in the 

record of this case, state.~ t.hat. l-IS of December 31, 2007, Pinm1cle Airlines, Inc. bad 4,00S employees. The 

final report is part of Pinnacle's Form I 0-K Iil~:d with the "U.S. ~ecuritics and Rxchange Commission. 

See http;//nt~<;lja.comorate-ir.neV..!nedia 111es/irq1/l 3!_131 072/PNC.!:- 200? AR n~w.p<;lf. 

See ufso Exhibit R-2 (Pinnacle's. Form 10-Q) at 7, staling that "[On] June 30, 2009, Pinnacle operated 124 

Canadai1; Regional Jet (CRJ) ·200 under Delta brands with approx.i~ately 695 daily departures to 116 

cities in 34 ... tales, the District of Columbia, and four Canadian pnwinces. Pini1aclc al~(> operated a fleet 

of 16 CRJ-900 aircraft a:> a Delta Connection can·icr with app1·oximately 9 I daily departures to 34 cities 

in 17 statcfl, thu District of Columbia, Beli7.c, Mexico, Turks and Caicos Island~:: lind the U.S. Virgin ll:llands.'' 

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nonsafety-scnsitive positions to safety-sensitive ground security coordinator (GSC) positions 

before it had received negative DOT drug test results concerning the employees. But Pinnacle 

· argues that tl1ere was a low material risk to the flying public from these violations because all 

16 of the GSCs were tested in Pinnacle's non-DOT drug testing program and had received 

negative rC::>lllt:>, and therefore, a lclwei· dvi1 penalty per violation was appropriate. 

' Actually, only 15 of the 16 GSCs were subject to non-DOT pre-employment dmg tests. 

(Tr. 195.) Even if they all had been subject to it~ the ALJ correctly gave little wejght to this 

argument. There was inadequate proofto suppoi"t Pi1macie's claim that its program "mimed" the 

DOT program. For exi.tmple, there was t~;stimony that for non-DOT tests, unlike lor DOT tests, 

the testers do not take anti-tampering measures such as blueing the water in the restroom and 

requiring the employee to remove his or her outer ganuents before ente1ing the restroom. 

(Tr. 548.) Further, although Pinnacle claimed that its contracts- with coJleclors, the laboratory, 

the third party administrator, and Medical Review Officers (MROs)- provided for following 

DOT requirements, Pinnacle failed to introduce the contracts into the record. Also~ there was 

testimony on cross-cxarnination from Pinnacle's Vice President of People, Mary At111 Morrow, 

that Pinnacle does not audit its laboratories to detcnnine whether they an~ following DOT 

requirements fo1- non-DOT tests. (Tr. 406, 409.) 

In any event, some of the non-DOT pre-employment drug tests occurred more than 

180 days before the employee was transfened. Const;quently, even if Pinnacle's non-DOT pre· 

employment drug testing was Cl!Lrivalent to a DOT pre-employment urug test, the non~ DOT drug 

tests were too old because pre-employment tests are valid under DOT regulations for only 

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180days. 14C.F.R.Part 12l,Appendixl, § V.A.3 (2007);see, e.g., Tr. 195,386. 17 

For these reasons, the ALJ did not err in declining to reduce the civil penalty based on 

Pinnacle's nott-DOT drug testing program. 

D, Results Received Before Training 

Pinnacle admits that it hired Dispatcher Jeremy Hcinbach before receiving hi~ negative 

DOT urug test results. Specifically, Pinnacle admits that it hired Heinbach on July 30, 2007 and 

received Heinbach' .s verified negative DOT; drug test results on August 2, 2007 (Exhibit R-11 ), 

and that Heinbach began company indoctrination-training on August 14,2007. However, 

Pinnacle states that there was a low risktrom this violation to the flying public because Hcinbach 

did not begin training until approximately 2 weeks after Pinnacle received his verified negative 

DOT prc~cmp1oymcnt drug test result$. Therefore, according to Pinnacle, the civil penalty for 

this violation should be reduced. 

According to the regulations~ no employer may hire any individual for a safety-sen,sitive 

function unless the employer first receives a ve1ified negative drug test result for that individuaL 

( 

14 C.P.R. Part 121, Appendix I,§ V.A (2007). The date of hire is what is relevant, not the date 

of training. (Exhibit A-6 at 1.) 18 

·Further, contrary to Pinnacle's asscrlion in its brief, the ALJ did not assess a rnaximum 

17 

Por example, Pinnacle employee Brenda Sweat had a non-DOT dl'Ug tc.st on July 21, 2006, 

(Tr. 3!:12.) A n~gative result was reported on July 25, 2006. (/d.) Sweat began G:;)C training on June 29, 

2007, about I 1 months after the non-DOT drug test. (TI'. 385; Exhibit R-16.) 

18 

Exhibit A-6 is a letter from Rebecca B. MacPherson, FAA Assistant Chief Counsel, 

Regulations Division, to Deborah McElroy, President, Regional Airline: Association, May 31, 2005, 

advising that "pre-employrncnl testing must be condw.:t.cd and a negative drug test result received before 

. an individual is hired for a safety sensitive function or transferred from a non-safety-sensitive functiou to 

a safety-sensitive function." (Emphasis in the origin~!.) 

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civil penalty for the violation hwolving Heinhacl~,- 19 The ALJ as::;~:s.sed a $200,000 civil penalty 

for 19 violations, which, on average, amounts to .Jess than $11_,000 per violation. The ma.:x:imum 

civil penalty per violation~ as discussed above on p. S, was $25,000. Such a civil penalty reflects 

not only the gravity of the violation, but as w111 be discussed further, the aggravating factors in 

this ca~e. 

E. Random nrug and Alcohol Testing Pools 

Pinnacle admits that it failed to place Dispatcher Michael Sampson into the random drug 

and alcohol testing pools, due to what Pinnacle ~tates 'was an inadvertent computer <:llTOr. 

However, Pinnacle argues that its error posed a low material risk to the flying public because 

Sampson would not have known about the error and, consequently, the goal of detenence was 

still met. 

1. Alcohol Testing Pool 

Regarding the failure to place Sampson into the random alcohol testing pool,· 

CompJainaut only alleged in the Complaint that Pim1a.c!e failed to comply with 14 C.F.R. 

Part 121, Appendix J> § III.C.5 (2007), which provided that: 

The ~election of employees for random alcohol testing shall be made by a 

scientifically valid method, such as a random-number table or a computer-based random 

nmnbcr generator that is matched with employees' Social Security numbers~ payroll 

identification numbers, or other comparable id,entifying numbers. Under the selection 

process used, each covered employee shall 'have an equal chance of being: tested each 

time selections are made. 

19 

Appendix 4 ofthe Compliance and Enforcement 01·d0r, FAA Order No. 2150.3A, which was 

in effect at the time, provided that th~ ma!'{imum civil .penalty range for ~:~.nair can·i~.:r w<~s $7,500 to 

$10,000. Appendix 4 was modified by the Compliance/Enf()rccmcnt Bulletin, No. 92-1, which was 

issued on JaOnuary 16, 1992, and provided that the maximum range civil penalty for Pa11 121 air caniers 

was either $7,500 to $10,000 or $6,500 to $J 0,000, depending upon whether the Part l2l air caiTier had 

an armual operating revcnu~:: of more or less than $100,000,000. However, these ranges, with the 

rnaximum civil penalty Ofllp to $10,000, were obsolete because Congress amended the Federal aviation 

statute in 2003 to auihtJrL:::c the imposition of up to ~l $25,000 civil penalty per viohttion, 

13 
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This provi::;ioil alone is merely a specification for the random alcohol misuse testing protocol that 

' 

must be re11ected in the carrier's program. It cannot, in itself, provide a basis for the violation of 

a regulation. A -violation f()r failure by a certificate holder to comply with this standard would 

require a showing that the certificate l1older.'s program failed to include the typ~ of selection 

process described in 14 C.F.R. Part 121, Appendix .T, § TTT.C.5. The regulation that must be 

alleged as violated would be 14 C.P.R.§ 121.459(b) (2007), which provided that: 

No cert(ficare holder shall use any person who meets the definition of covered 

employee in appendix J to this part to perform a safety-sensitive functjon listed in 

that appendix unless such person is .w~;ect to testing for alcohOl mi.\"U5e in 

accordance with the provisions of appendix .1. 

(Emphasis added.) However, Complainant 1:ailed to allege a violation of 14 C.F.R. § 121.459(b) 

in the Co1nplaint. Hence, the ALJ's 1inding of a violation involving random alc<,hol mjsuse 

testing of Sampson is reversed. : 

Complainant intended to allege 20 violations in the complaint (FAA Reply Brief at 6),, 

one of which jnvolved the failure to include Sampson ,ill its random alcohol testing pool. 

' However, Complainant failed to allege a violation of Section 121.459(b ). As a result of this 

failure, Complainant actually alleged only 19 violations. Tn his decision. the ALJ statuti that h!! 

assessed a $200,000 civil penr.~lty for 19 violation~. This decision also fi11ds that there were 19 

violations. 

. 2. Dl·ug Testing Pool 

Regarding the failure to place Sampson into a random dmg testing pool, which was a 

violation of 14 C . .F.R. § 121.457, Pim1acle's argument that the sanction was too high is not 

' 

co1upclling. The violation was egregious because there was no oppo1tunity to detect drugs 

during random testing. On three occasions ~iver the course of 7 rnonths, Sampson performed 

safety.scnsitive functions as an aircraft dispatcher for Pbmacle without being included in the 

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random drug testing pool. A penalty that is less than hl:l.ll' of tl1e maximum $25,000 civil penalty 

per violation is appropriate, and ret16ct~ lhe gravity of this violation as well as the aggravating 

factors present in this case. 

K Remedial Actions 

Pil1naclc argues that-the ALJ failed to take account of Pinnacle's remedial actions. The 

'Ad)ninistratol' has held that "swift, comprehensive, and positive ?OrrccLive action may warrant a 

reduction i~ an otherwise reasonable civil penalty.'' Mole-Master Services Corporation, FAA 

Order No. 2010-11 al 11 (Novcmber22, 2011) (citing TiVhitley, FAA Order No. 2009-4 at 10 

(January 14, 2009)). 

Pinnacle asse11s thi:lt it took the following remedial actions that it argues were mitigating: 

fR Jetraining managers on drug and alcohol testing, redesigning the training 

resources available to those managers to make them more accessible ('fran. 

24&:~ 1-249:8), implementing a two-tiered audit system for ~nsuring intem.al 

compliance (Tran. 247:2-248:1 0), est.f.lblishing new procedures for ensuring 

safety~sensitivc employees have received verified negative DOT dmg tei'it results 

prior to training (Tran. 252: 1-253:4 ), and implcrnenting a new Human Re~ources 

management system thaL allows for better tracking of employees' drug testing, 

hire, and training dates. (Tran. 219:12-15; 219:21-220:3.) 

(Appeal Brief at 23.) 

Although Pjnnacle states that it retra,ined its m~nagers regarding ~!rug and alcohol tes6ng, 

it cites to nothing in the record to support that claim. As for changing the manager training from 

a lecture format to an electronic fonnat, that 1s hardly a substantial change. Althm1gh Pinnacle 

states that some of its employees like the new format, the change is not significant enough to 

merit any reduction in the civil penalty that wa~ assessed. 

Regarding Pjnnacle's two-tiered audit system, whereby it now audits both its own 

compliance and that M.its third-party contractor, se]f ... monitoring is a change that Pinna.cJc should 

have realized it n~e-ded when its violations began year~:; ago. i\s the A LJ stated, it is difficult to 

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know whether Pinnacle's actions represent a real change or an effort simply to pacify the F.Ai\., 

to create "smoke and mirmrs." (Initial Decision at 12.) 

Regarding the new procedures for ensuri11g that safety~sen!iitive employees have received 

verified negative DOT dn1g test restllts before tra1n1ng, this involved :>imply checking to see that 

the class roster includes only individual!:; who have received negative drug tests and that only 

individuals on the ro~Ler are il1 the class. (Tr. 252-253.) It is unclear why Pinnade was not 

doing these simple things trom the start. They do not wan-ant a reduction in the civil·pcnalty _ 

But more importantly> the primary issue in this case is n()t whether 11egative drug test rl:sults 

were in hand before training commenced, but rather whether individuals were hi.red or 

transferred before the receipt of test results . 

. , 

Finally, regarding Pi1macle's implementation of a new Human Resources computer 

system, which Pinnacle states was intended to allow bl.:ttcr tracking of employees' drug tc~Ling, 

hiri11g, nnd training dates, the A.LJ stated that it was a re]atively C<'IS)' step. He questioned why zm 

airline of Pinnacle's size and resources would continue to .depend or1 a computer program that its 

own staff described as old and antiquated. He further stated that acquisition of new software 

wou1d not correct the problem without a change in .Pilu1aclc's laissez-faire approach to preemployment drug testing .. (Initial Decision at 12.) Whether this wa~ a relatively easy step, as the 

ALJ fbund, cannot be detennincd on this record. However, as the ALJ found, Pinnacle's 

rcpl,tcement of an old and antiquated system does not justify a redtJction of the civil penalty 

asscsst~d in this case because Pinnacle should not have been using an inf.ldcquatt'l system to 

' 

monitor compliance with the FAA's dmg and alcohol testing regulations. The burden of 

persuasion was on Pinnacle, and it failed to iritroducc evidence that waJTanted mitigation. 

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G. Prior VioJadons 

Pinnacle argues that the ALJ relied on inadequate evidence of prior violations anJ 

therefore the sanction of $200,000 is excessive. 

At the hearing, Complainant called Amy frankel, FAA Field Operations l3ranch 

Manager, to introduce the following repo11 summaries from the FAA's Enforcement Infonnation 

System (ElS\ which is ''an automated management infom1ation system that tracks the FAA's 

enforcement actions on a nationwide basis." (PAA Order 2150.3B, 9-1 (2)(a).) The EIS "is the 

FAA's primary database for tracking infom1ation ahout enforcement actions for statutory or 

regulatory violations." (.!d.)· 

Ms. Frankel personally reviewed Complainant's computer records containing informati()n 

about Pinnacle's violation history, and she found the following entries: 

1. ORD [ORDER] ASSESSING CP [CIVIL PENALTY] $5,000 (2000) (Exhibit. 

A-8.) 

2. ORD AS~rESSfNG CP $11,000 (2000) (Exhibit A-9.) 

3. CIVIL PENALTY $27>000 (2005) (Exhibit A"lO.) 

4. ORD ASSESSING CP $10,000 (2006) (Exhibit A-11.) 

5. ORD ASSESSING CP $10,000 (2007) (ExhjbitA-12.) 

The doctlmentation sh()wed that these civil penalties were assessed for noncompliance 

with the drug and alcohol testing regulations. (Tr. 161.) 

Pinnacle's counsel admitted during opening argument at the hearing that there were prior 

violations. (Tr. 78.) However, on appeal, Pinnacle argues that Complainant's proof of prior 

violations was inadequate. According to Pinnacle, Complainant should have provided the actual 

orders assessing civil penalty because the summaries contained abbrcviatt~d langtlage and limited 

information. 

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Pinnacl~ failed to make thi~ objection at the hearing and to preserve this argument for 

appeal. In any event, any abbreviations were explained (Tr. 165) and there was sufficient 

infonnatioil- disposition, amount, types ofvioJations, year. There was no need to lmow 

specifica.lly what happened to cause these prc~cmployment violations or the exact number of 

' 

violations in each civil penalty case. 

Pinnacle also argues that the report summaries may have actually rp11ected compromise 

orders with findings of no violations under 14 C. y.R. § l3.16(n)( 1 )(2007). llowever, nothing in 

the report so indicares. Tt was up to Pinmicle to bring out, if it could, findings of no violations, 

for example on. cross-examination of Complainant's witness. Pinnacle failed to rebut the 

evidence offered at the hearing. 

Although Pinnacle argues that it haclm) oppoltunity to review the report summaries 

before the hearing, it apparently failed to ask Complainant for any repmts of prior violations. 

(Tr. 156.) .t\s the ALJ :.aid, Pinnacle's counsel shoulci have known- if he had read the statute 

and the criteria that Complainant must follow in dcterrnining the civil penalty amounts- that 

Pinnacle's prior history was going to he an issue in this matter. (Tt·. 158.) 

Conclusion 

As discussed above~ Pinnacle's argument regarding the ALJ's finding of a violation 

involving lts failure to conduct pre~employment testing of St~wa11 and to receive negative dn~g 

test results prior to hiring him is rc_j(;ct~d. While there was evidence that Sampson was not 

included in the pool I<.>r random alcohol testir1g, Complainant failed to allege a violation or 

14 C.F.R. § 121.459, anu, consequently, it failed to allege a regulatory violation. Hence, as the 

ALJ held, a total of 19 violations were pr~ven in this case. 

Pinnacle ~:~rguccl for a reduction of the $200,000 dvH penalty. As discussed EJbovc, the 

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FAA had the authority to assess a civil penalty not exceeding $25,000 per violation. Hence, for 

19 violations, a maximum civil penalty of$475,000 col.Lld have been assessed. The $200,000 

civil penally imposed by the ALJ is less than half of $475,000. 

Dntg and alcohol testing violations put lives in danger and thus wan-ant significant civil 

penalties. When the tests do not occur as they ought, employees in safety-sensitive positions and 

potential einployt:e-s for these positicms who would have test~d po~itive for drugs or alcohol or 

both arc not d~tected?0 Pinnacle's argument regarding mhigating factors, as discussed, is 

rejected. 

Turning now to aggravating factors, a respondent's history of prior violations is an 

aggravating factor. The FAA's Enfor~ement Sanction Guidance Table that was in effect at the 

time, FAA Order No. 2l50.3A, Appendix 4, stated, «Alleged violations will fall within the 

nOlmal range only when the violator has no prior violations." As discussed above, Pinnacle had 

'five prior violations. 

Further, the existence of systemic violations is another aggravating factor. Ilere, we do 

not have an isolated, single violation. Instead. 19 separate violations took place, and asthe ALJ 

pointed oul, Pinnacle's failure to bring its drug testing program into compliance with the 

regulations in this case lasted nearly a year. (lniti~l Dbci.sion at 9}1 

:w Drug and alcohol testing has been proven to b~ an effective detection tooL Aviation employers 

have reported t() the FAA large numbers of positive tests. 69 Fed. Reg. 1840, 1840 (January 12, 200tl). . 

/.J This decision will be considered an order assessing t:ivil penalty unless Pinnacle fi'les a petition 

for review within 60 days of service of this decision with tho U.S. Cou1t of Appeals for the Pist.ric1. uf 

Columbia Circuit or·th<.: U.S. Court of Appeals tor the circujt in which Pinnacle resides l)r has its principal 

place ofbusiness. 14 C . .F.R. 9§ l3.16(d)(4), J3.233(j)(2), 13.235 (2011). See 71 F~.:d. Reg. 70465 

(December 5, 2006) (regardingpcti~ions tor review of 1in<1l agency decisions in civil penalty cases). 

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In the absence of any mitigating factors, and in the presence of certain aggravating 

factots, the civil penally assessed by the ALJ~OO,OOO ormed. 

~EL~A ACTING ADMfNISTRA TOR 

Federal Aviation Administration 

20 

141023/023