### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON,D.C. 

# RECEI\/Fn**~·** ''"q,;l'



### Inthe Matter of: FELTS FIELD AVIATION Respondent ) ) ) ) )



## _________________________) 

## FEB 022017 HEARING DocketNo: FAA-2015-3307 CaseNo: 2015WP910090 Judge J.E. Sullivan

COMPLAINANT'S OPPOSITIONTO RESPONDENT'S MOTION TO DISMISS 

### Complainant, by and through counsel, files this oppositionto the Motionto Dismiss filed by Respondent on January 17, 2017. In its Motion to Dismiss Respondent argues that Complainant withheld the calculation of the proposed civil penalty in violation of Judge Sullivan's verbal Order. ARGUMENT 

### Respondent's Motion to Dismiss should be deniedbecause Complainant's Calculation of the Proposed Civil Penaltywas served on Respondent onJanuary 17, 2017. Since its substitution ofcounsel on July 6, 2016, Complainant has met all deadlines set by Judge Sullivan. By verbal Order dated December 15, 2016, Judge Sullivan, ordered Complainant to provide Respondent a detailed calculation of its proposed civil penalty by January 17, 2017. Pursuant to Judge Sullivan's Order, Complainant provided a detailed calculation ofits proposed civil penalty to Respondent's counsel by facsimile and U.S. First Class Mail onJanuary 17, 2017. 1 

### Additionally, the Complainant emailed a courtesy copy ofthe Calculation ofthe Proposed Civil Penalty to Respondent's counsel on January 18, 2017? In its Motion to Dismiss Respondent asserts that Complainant withheld how it calculated the proposed civil penalty in violation of Judge Sullivan's verbal Order. However, Respondent''s**~ssertions** 

### are erroneous. Respondent has

I See Complainant's Calculation ofthe Proposed CivilPenaltywith Certificate ofService and TransmissionLog (Attachment I).----------·-- --**-·-------~---**



### received multiple copies ofthe Complainant's Calculation ofthe Proposed Civil Penalty in a timely manner. CONCLUSION 

### For the foregoing reasons, Complainant respectfully requests the Judge deny Respondent's Motionto Dismiss.
Respectfully submitted, NaomiTsuda Assistant ChiefCounsel for Enforcement

Fatimah Stokley Enforcement Division, WesternTeam P.O. Box 

### 92007 Los Angeles, CA 90009-2007 Email: fatimah.stokley@faa.gov Telephone: (310) 725-7112 Facsimile: (310) 725-6816
Date: January 24, 2017

2 SeeEmail dated Jan. 18, 2017 (Attaclnnent2). 2

### DocketNo. FAA-2015-3307 CaseNo. 2015WP910090 CERTIFICATE OF SERVICE I hereby certifY that on this date I have sent by Facsimile and U.S. First Class Mail, the COMPLAINANT'S OPPOSITION TO RESPONDENT'S MOTION TO DISMISS, addressed as follows: Judge J.E. Sullivan U.S. Administrative LawJudge Office ofHearings, M-20 U.S. DepartmentofTransportation 1200NewJerseyAve, S.E. EastBldg., Room Ell-310 Washington, D.C. 20590 Fax: 202-366-7536 FederalAviationAdministration HearingDocket Clerk, AGC-430 WilburWrightBuilding, Suite 2Wl000 800 Independence Ave., S.W. Washington, D.C. 20591 Fax: 202-267-1293 Mark J. Conlin 421 W. Riverside Ave., Suite 911 Spokane, WA 99201 Fax: 509-623-1650 Also by Email· mconlin@aviation-law.com

# W~L. Antonia Garcia, Mgmt. and ProgramAnalyst EnforcementDivision NationalEnforcementProgram WesternTeam Federal AviationAdministration Lawndale, California
Dated: January24,2017 3

### In the Matter of: U.S. DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS

WASHINGTON,D.C. **------~--------.**

) ) ) ) ) 

### Docket No: FAA-2015-3307 FELTS FIELD AVIATION Case No: 2015WP910090 Respondent



### ----~-------------------) Judge J.E. Sullivan COMPLAINANT'S CALCULATION OF THE PROPOSED CIVIL PENALTY



### Complainant, by and through counsel, provides the following calculation ofthe proposed civil penaltypursuant to Judge Sullivan's Order on December 15,2016. During the Federal Aviation Administration's (FAA) investigation of Case No. 2015WP910090, the FAA discovered that Felts Field Aviation (Felts Field) failed to comply withthe requirements of 14 C.F.R. Part 120 and 49 C.F.R. Part 40 for its drug and alcohol testing program. Specifically, Felts Field hired Richard Webber-a pilot- in 2008, but failed to add Mr. Webberto its random drug and alcohol testing pool until April6, 2015. Mr. Webber was not included in the random selection pool during selections made in July 2013, October 2013, January 2014, April 2014, July 2014, October 2014, and January 2015. Prior to adding Richard Webber to its random drug and alcohol testing pool, Felts Field allowed Mr. Webber to perform
over 60part 135 flights. According to FAA Order 2150.38, Appendix B, fig. B-5-b(l), a moderate to maximum civil penalty is recommended for failing to include a safety-sensitive employee in FAA mandated drug and alcohol testing programs. A pilot is a safety-sensitive employee. Under the FAA's classifications of operators, Felts Field is considered a Group IV operator; and the sanction range for a moderate civil penalty is $2,200 to $4.399 and a maximum civil penalty is $4,400 to $11,000. FAA Order 2150.3B, Appendix B, p. B-3- B-4. In tllis case, Felts Field

1of4 Attachment 1failed to include Richard Webber in its drug and alcohol program for years and allowed Mr. Webber to operate over 60 part 135 flights on its behalf. Failing to subject a t1ight crew member to random drug and alcohol testing for years could lead to the performance ofsafety-sensitive work in an impaired state. Felts Field's failure to include Richard Webber in its random drug and alcohol testing program for such an extended period oftime and allowing Mr. Webber to operate part 135 flights on its behalf were careless acts that posed a substantial threat to air safety. As a result, such acts are considered aggravating factors. 

### See !d. at Ch. 7, para. 4. Consequently, the FAA assessed a maximum civil penalty of$11,000 for this case. Under the facts and circumstances of this case, a maximum civil penalty is consistent with the FAA's guidance in FAA Order 2150.3B.
Respectfully submitted, Naomi Tsuda Assistant ChiefCounsel for Enforcement



# -~~ Fatimah Stokley Enforcement Division, Western Team P.O. Box 92007 Los Angeles, CA 90009-2007 Email: fatimah.stokley@faa.gov Telephone: (310) 725-7112 Facsimile: (310) 725-6816

2

2 of4 Attachment IDocket No. FAA-2015-3307 Case No. 2015WP910090 CERTIFICATEOF SERVICE I hereby certify that on this date I have sent by U.S. First Class Mail and facsimile, the COMPLAINANT'S CALCULATION OF THE PROPOSED CIVIL PENALTY, addressed as follows: .Tudge J.E. Sullivan U.S. Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave, S.E. East Bldg., Room Ell-310 Washington, D.C. 20590 Fax: 202-366-7536 Federal AviationAdministration Hearing Docket Clerk, AGC-430 WilburWright Building, Suite 2Wl000 800 Independence Ave., S.W. Washington, D.C. 20591 Fax: 202-267-1293 Mark J. Conlin 421 W. Riverside Ave., Suite 911 Spokane, W A 99201 Fax: 509-623-1650 

# l

**11/~La/(_**___ / Debbie Reed Management Program Analyst Federal Aviation Administration Office ofthe ChiefCounsel Lawndale, California
Dated: January 17, 2017



### 3

3 of4 Attachment I

# ransmission Log

AWP7 Legal Office Tuesday, 2017-01-17 14:47 3107256816 Date Time Type Job # Length Speed Fax Name/Number Pgs Status 2017-01-17 14:46 SCAN 00047 0:39 28800 915096231650 4 OK

-- V.34 AB31



## ro: ;2() 

# - -··--·. ;..,,_, '•7-179>W..-7$-XZ.. Federal Aviation Administration

Office of the Regional counsel, AWP-7 PO Box92007 Phone: ,nf_,.t. 9.}1--1,).1'
...**~,,s-a** LosAngeles, CA**90009~2007 J~.**  

### '
From;**)'!,;~,** ..;.**J/,kJ~ ~"··-**  Title: F:_t!J..-.."1' A-/lr:Jy""t

Date: 1-17-1"7 Pages w/cover:
0 Peryour Request

0 ForCoordination NOTES/COMMENTS: ·-·-· TelephOne: (310) 725-7100 Facsimile· (310) 725--6816 Email: Facsimile
Description ofitem betngtransmitted:**S.~** 3e/;w 0 For Review D Please Comment 9( Hard Copy to Followvia US MAIL

The information contained in this facsimile message is Intended for the use ofthe designated addressee only The information transmitted may be subject to the attorney-clie"t privilege or may be protected underthe Privacy Act_ Ifyou are not the designated addressee and you rece1ve this documentthrough inadvertent error, any further review, dissemination, distribution orcopying of this communlcaUDt1 is strictly prohibited. IF YOU RECEIVE THIS COMMUNICATION IN ERROR, PlEASE NOTIFY THE SENDER IMMEDIATELY BY TELEPHONING (310) 725- 7100 AND DESTROYTHE ORIGINAL OF THIS COMMUNICATION. Thank You.

4 of4 Attachment IStokley, Fatimah (FAA) From: Sent: To: Subject: Attachments:
Markand Ben, Stokley, Fatimah (FAA) Wednesday, January 18, 2017 10:24 AM mconlin@aviation-law.com; 'Ben Wyborney' Felts Field Aviation, Case No. 2015WP910090 Complainant's Calculation of Civil Penalty.pdf

Attached is a courtesy copy ofthe Complainant's Calculation ofthe Civil Penalty. This documentwas faxed and mailed toyou yesterday. Please let me know ifyou guys are available next weekto discuss this case. Thank you, Fatimah Stokley Office ofthe Chief Counsel Enforcement Division Western Enforcement Team Federal Aviation Administration Phone: (310) 725-7112 Fax: (310) 725-6816 IMPORTANT: This message, and any attachments thereto, is intended solelyforspecific recipients. Ifyou are not an intended recipient ofthis communication, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. This message may be confidential, an attorney-client communication, part ofthe agency's deliberative process, or attorney-work product and must not be forwarded or otherwise shared without express permission. Ifyou have received this e-mail in error, please notify me immediately by e-mail ortelephone, discard any paper copies and delete all electronic files ofthis e-mail.

1 1of! Attachment2