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UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

^TOr mm\ 

Federal Aviation Administration, 

Complainant, 

Sunquest Executive Air Charter, Inc. 

Respondent. 

FAA Docket No CPO8WP0004 

(Civil Penalty Action) 

RESPONDENT'S APPEAL BRIEF 

DMS No. FAA-2008-0238 

RESPONDENT'S APPEAL BRIEF 

Respondent files its brief in response to the appeal on file by the 

Complainant. 

STATEMENT OF THE CASE AND RELEVENT LSSUES 

The sole issue raised by the Complainant in its appeal and brief deals 

with flights by one of Respondent's employees, Mark Smith, who flew a helicopter 

for the Los Angeles Police Department on his own time. The action is not brought 

for any alleged violation by pilot Mark Smith. It is only against Respondent, the 

air carrier for whom Mr. Smith worked when he was not flying helicopters for the 

L.A.P.D. 

Without explaining how or in what manner an all' carrier is supposed 

to know what all of its pilots are doing in their off duty time. Complainant's 
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position appears to be that Mr. Smith's off duty flying is required to be tracked by 

the air carrier. Interestingly, the Complainant fails to allege how or in what 

manner air carriers are supposed to be able to ascertain what its pilots do in their 

off duty time. 

The Complainant appears to be attempting to arrogate to itself the 

rules regarding "public aircraft" in the teeth of the statutory definitions and 

F.A.A/s earlier opinions. This they cannot do. If the Complainant wishes to 

change the rules, it either has to convince Congress to change the statute or comply 

with the Legal Procedures Act (including Notice of Proposed Rulemaking, etc.) or 

botli. 

The complaint charges that Respondent committed a violation because 

its records did not track Mr. Smitii's Los Angeles Police Department flying. 

However, by stipulation, the Complainant agrees that Mr. Smith's flight time for 

the Los Angeles Police Department referred only to Mr. Smith's flying a police 

helicopter owned and operated by the Los Angeles Police Department which had 

operational control over initiating, conducting or terminating all flights in its 

helicopters. Administrative Law Judge Richard C. Goodwin properly ruled that 

within the meaning of the F.A.R.'s Mr. Smith's flying for the L.A.P.D. did not 

constitute "other commercial flying" under the applicable duty time regulations 

imposed on air carriers. 
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'^ * DMS 0003/009 

Clearly, the F.A.A. has a statutory right and duty to regulate air carrier 

pilots' activity including its flight time and rest period time. However, there is no 

regulation, statute or rule by which the F.A.A. has previously undertaken to 

manage or control the activities of the air carrier's employees outside of their 

employment. Analysis of the regulatory scheme as well as common sense dictates 

otherwise. Applying the complainant's position to its logical conclusion would 

require air carriers to take control of, supervise, patrol, spy on and/or pry into what 

each of its pilots does in his off duty time. 

Apparently this is a test case by which the Complainant is attempting 

to seize authority it does not have. It has put together multiple arguments. As 

detailed hereafter, none of these arguments fall within the statutory scheme or 

historical background which exists regarding this case. 

I. 

STATUTORY AUTHORITY 

The statute which created the F.A.A. specifically extends the authority 

of the F.A.A. to regulate flying machines other than "public aircraft". 491JSC 

401021 [Emphasis added] 

Congress made it clear that the F.A.A. could only regulate aircraft that 

were not "public aircraft". The statute defines a public aircraft is one " . . used 

exclusively for the service of any government [not] carrying persons or property 
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'^'^'^ * DMS 0004/009 

for commercial purposes." The stipulation upon which Administrative Judge 

Richard C. Goodwin relied states that all of Mr. Smith's flying for the L.A.P.D. 

was flight of a police helicopter owned and operated by the Los Angeles Police 

Department which had operational control over the initiating, conducting and 

terminating all flights in its helicopters. 

The Complainant appears to be attempting to renege on its stipulation, 

arguing that all flying for a governmental agency is not, necessarily, public flying 

because theoretically a government could use the aircraft for commercial purposes. 

Clutching this straw, the Complainant argues that flights, even if by a 

governmental agency, might not be public flying, for example, if the aircraft was 

being used to transport passengers or run errands for a chief of police. 

The trouble with this position is that there is absolutely no evidence to 

support it. In this appeal, neither the Complainant nor the Respondent can go 

outside of the stipulated facts. For example, the Complainant now suggests in its 

brief that there is no evidence that Mr. Smith's flying for the L.A.P.D. did not 

include running errands for the Chief of Police or carrying passengers for "hire". 

By a parity of reasoning, there is also no evidence in the record to even show that 

he was even paid for his L.A.P.D. flight status. 

The Complainant's position is not logical. Mr. Smith was a 

policeman, doing police work. For example, he could just as well have been 
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'^'"^ * DMS 0005/009 

driving a patrol car or walking a beat yet no one, not even the Complainant, would 

have argued that any time so spent had to be tracked by the air carrier. 

The Complainant's ivory tower recital of the history behind the 

statutory scheme is incorrect, irrelevant and borders on intellectual dishonesty. 

The true facts are these: in 1957, two airliners crashed over the Grand 

Canyon killing all passengers. Congress had hearings and, eventually, enacted the 

Federal Aviation Act. The purpose of the statute, which created the F.A.A. and 

specifically excluded public aircraft, was to make sure that such a tragedy v»^ould 

never happen again. Complainant's argument regarding legislation later 

introduced by Senator Larry Pressler, and the F.A.A.'s Advisory Circulars 

pursuant thereto, deal only with use of government aircraft when it is not used for a 

governmental function. Their reading of 49USC 40125 and F.A.A. Advisory 

Circular "Government Aircraft Operations" No. 00-1.1, dated April 19, 1995, 

enable F.A.A. regulatory oversight only as (quoting from the Complainant's brief) 

to "some government aircraft operations". 

With this background, reconciliation of two key cases is simple. In 

U.S. vs. Aero Specialties, the Court of Appeal, as in this case, rejected an F.A.A. 

attempt to regulate NASA's use of transport aircraft for the space shuttle. In that 

case, following black letter law, the Court rejected the F.A.A.'s attempt to seize 

such authority. Unlike the foregoing, U.S. v. Christensen, 49 Fed 2'"^ 1401, holds 
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that the F.A.A. does have the right and the duty to control flights in U.S. airspace. 

The Complainant fails to understand that the F.A.A. Act gives it authority of the 

airspace but not over public aircraft in a non-airspace issue. 

This case does not deal with regulation of aircraft in airspace. There 

is no evidence that operation of the police helicopter could, would or did endanger 

the operation of civil aircraft of any kind, whether owned or operated by the 

Respondent or anybody else. Hence, the Agency's "parade of horribles" 

regarding flights over Camp David, prohibited areas, and the like, whether military 

aircraft or otherwise, are specious. They all deal with use of airspace. As pointed 

out by the Agency's own brief (page 10, commencing at line 12) the rules require 

the F.A.A. to forward its investigative materials to the appropriate military for 

appropriate handling. This is because military flying is public flying and the 

F.A.A. itself docs not have authority to deal with such violations. In the case of 

public aircraft, the governmental agency which operates the public aircraft itself is 

the one who controls an alleged operating error on the part of govermnental 

aircraft, while the F.A.A. has the control over airspace. 

IL 

L,A.P.D. FLYING IS NOT COMMERCIAL FLYING 

The Complainant takes a sentence out of context from an opinion in 

F.A.A. interpretation 1991- 45. Their answer to Issue # 3 in the opinion does 
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indeed state that "other commercial flying" includes any non-military flying. By 

some leap of faith, the Complainant attempts to broaden that singular sentence into 

meaning that all government flying other than military is commercial flying. Of 

course that is not correct. With respect to the specific issue presented here, namely 

the responsibilities of an air carrier's duty for tracking of flight or rest periods of a 

pilot on the pilot's off duty time do not fall on the commercial operator; tliey fall 

on the pilot. 

In another opinion of the F.A.A.'s chief counsel, on August 9, 1989, 

he squarely deals with the issues presented here. He states: 

"Technically, it is not a violation of 135.267(b) for a pilot 

to fly during the required rest period if the flying is not 

assigned bv the certificate holder. [Emphasis added] 

"However, it is a violation of Section 91.13 'if the certificate holder 

allows a crewmember to perform flying when the pilot's lack of rest may endanger 

others.'" 

No one suggests that Mr. Smith's flights with the L.A.P.D, were 

assigned by Sunquest. Nor is there any evidence that Respondent allowed any of 

its pilots to fly with lack of rest or otherwise endanger the public. 

Likewise, F.A.A,'s chief counsel explained (F.A.A. chief counsel's 

opinion of May 9, 2003): 
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"The prohibition against performing other commercial flying 

during required rest period only applies when the same entity 

that assigns the Part 135 flying is also assigning the 'other 

commercial flying'." 

That is not the case here. This Respondent neither required nor 

assigned Mr. Smith's flying with the L.A.P.D. Mr. Smith and only Mr. Smith 

made that determination. 

IIL 

CONCLUSION 

Respondent urges that the well reasoned opinion and conclusion of the 

Administrative Law Judge be affirmed. 

Respectfully submitted. 

^ ARTHUR WASSERMAN, Attorney for 

Sunquest Executive Air Charter, Inc. 
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CERTIFICATE OF SERVICE 

I hereby certify that on this date I placed in the United States Mail, 

postage prepaid, the original of the attached document (Respondent's Appeal 

Brief) and 2 copies, addressed to: 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2W1000 

And a copy sent United States Mail, postage prepaid, a true copy addressed to: 

Joseph A. Conte, Manager 

Air Carrier & Operations Law 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

Washington, DC 20591 

Dated: May 7, 2010 

Christina Merrick 

LAW OFFICE OF ARTHUR WASSERMAN 

16380 Roscoe Boulevard, Suite 120 

Van Nuys, California 91406-1221