U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

RECEIVED 

MAR 1 9 2014 

HEARING DOCKET 

vs. 

Docket No. FAA-2013-0291 

FAA Case No. 2011S0290032 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES, 

Respondent. 

Judge Sullivan 

RESPONSE INOPPOSltlON tO MOTION to COMPEL 

On March 10, 2014, Respondent moved the Judge to compel the FAA to further respond 

to certain discovery requests. As discussed in the FAA's objections to those discovery requests, 

Respondent's discovery requests were untimely, and the information sought is beyond the scope 

of discovery or privileged. Accordingly, Respondent's Motion to Compel should be denied. 

/ 

Untimeliness 

As Respondent notes in its Motion to Compel, but does not address, the FAA objected to 

Respondent's discovery requests as untimely filed. See Motion to Compel at 1 n.l; Motion 

Exhibit 1 at 1. Because Respondent failed to timely initiate discovery, in violation of the Judge's 

Order, and without any apparent reason, the Judge should not compel any response to the latefiled discovery requests. 1 

In the Judge's Order Setting Litigation Dates and Procedures, dated November 7, 2013, 

the Judge stated that the parties were to begin written discovery "on or before January 28, 2014." 

1 As a courtesy, the FAA has agreed to provide responses to Respondent's other aspects of Respondent's untimely 

discovery requests that did not consist of irrelevant personal attacks on the reporting inspector and/or delibeate 

requests for privileged information. 

1 
This was consistent with the discussions of the parties, which resulted in a joint submission 

proposing January 28, 2014 as the date on which initial written discovery requests would be due. 

See Joint Supplemental Rule 26(f) Schedule/Discovery Plan, dated November 4, 2013. 

Respondent, however, did not promulgate its initial written discovery requests until February 6, 

2014, nine days after that deadline. See Motion Exhibit 3 at Certificate of Service. When 

addressing this untimeliness (both in its e-mail and telephonically), Respondent has provided no 

reason for its failure to timely initiate discovery, but rather has insisted that there was no 

deadline to initiate written discovery. See Motion Exhibit 2 at 2. Respondent's position, it 

appears, is that the Order's statement that written discovery was to be initiated "on or before 

January 28, 2014" means that written discovery can be first initiated at any point after January 

28, 2014, through June 6, 2014. Respondent correctly noted that discovery continues until June 

6, 2014, see id., but this does not mean that the parties were permitted to simply delay the 

initiation of discovery for no reason, because the remainder of that discovery period is to be used 

for follow up on that initial written discovery, such as the taking of depositions, the submission 

of expert information, and (if necessary) the issuance of supplementary written discovery. For 

example, by not submitting its initial written discovery until February 6, 2014, the FAA's 

responses were not due until March 10, 2014,2 and we are already in the time period where 

depositions were to be conducted. 

Respondent's discovery requests were untimely, and Respondent has asserted no basis at 

all for that untimeliness, much less shown good cause for it. Accordingly, Respondent's Motion 

to Compel compliance with those discovery requests should be denied. 

2 They would have been due on March 8, 2014, but because that was a Saturday the deadline would not fall until the 

next weekday, which was Monday, March 10, 2014. 

2 
Personal Attacks on FAA Personnel Are Not Within the Scope of Discovery 

Almost half of Respondent's discovery requests did not concern the allegations in the 

Complaint, but instead consisted of Respondent's complaints about what it perceived as the 

"intimidating, harassing, abusive, and inappropriate conduct" of one of the FAA inspectors 

involved in this matter. See Motion Exhibit 3 at Interrogatories 1 0-12; Requests for Production 

4-10. The FAA objected to these requests as beyond the scope of discovery because they did not 

concern this litigation, but rather sough to air irrelevant complaints about the reporting inspector. 

See Motion Exhibit 1. 

Respondent now argues that these requests address the credibility and bias of the FAA 

inspector. See Motion at 2. The FAA does not dispute that the credibility ofwitnesses can be at 

issue in litigation. The problem is that Respondent's discovery requests have nothing to do with 

the credibility of any witnesses. Respondent asserts that its questions concern bias concerning 

Respondent because the Inspector advised Capital Cargo International Airlines (CCIA) to stop 

using Respondent's services, and "directed" Respondent to use the services of another repair 

station. See Motion at 3. However, even if these allegations were true it would not show bias, 

none of Respondent's discovery requests concern such an allegation, this is (contrary to 

Respondent's assertions) simply a "shot in the dark," and none of the discovery requests 

promulgated actually concern bias or credibility. 

As an initial matter, most of Respondent's discovery requests do not even relate to the 

alleged bias presented in its Motion. The alleged bias concerns disfavoring Respondent and 

favoring some other repair station. But that is not what the discovery requests concern. Request 

for Production #6 concerns any complaint by any party concerning intimidating, harassing, or 

abusive conduct. See Motion Exhibit 3 at 6. Interrogatory #12 and Request for Production #9 

3 
concern an allegation that the FAA Inspector "threatened" CCIA personnel by informing them 

(accurately) that their certificates could be in jeopardy if they did not comply with Airworthiness 

Directive (AD)3 documentation requirements. See Motion Exhibit 3 at 9-10. Interrogatories #10 

and 11 and Requests for Production 4 and 5 concern allegations of unspecified intimidating, 

harassing, and abusive conduct towards CCIA. See Motion Exhibit 3 at 9-12.Request for 

Production #7 concerns a more specific allegation that the Inspector made intimidating, 

harassing, and abusive statements, and expressed a negative opinion of Respondent. See Motion 

Exhibit 3 at 7-8. Except for Request for Production #7, none of these discovery requests have 

anything to do with Respondent or with this case. And none of them have anything to do with the 

arguments of bias raised by Respondent in its oWn Motion. Even if true (which they are hot); 

allegations of whether the Inspector was being "intimidating" have no relation to bias. 

Second, even if the new allegations made by Respondent in its Motion to Compel were 

accurate (which they are not), they would not show bias. Notably, all of the alleged matters 

raised in Respondent's discovery requests occurred in 2012, the year after the Notice of 

Proposed Civil Penalty in this case was issued, and two years after Respondent's improper 

maintenance was discovered. Respondent presents no explanation for how it would demonstrate 

bias for an Inspector to hold or express negative opinions about the competence of a repair 

station, after conducting investigations into maintenance performed by that repair station, after 

concluding that the repair station had violated multiple sections of the Federal Aviation 

Regulations on multiple occasions, after concluding that those violations were severe enough to 

warrant legal action, and after the issuance by the FAA of a civil penalty action for those 

violations. Indeed, it is unclear how an Inspector in such a situation could not have some 

negative views about the Respondent and its conduct. If this shows "bias," then every FAA 

3 There are no ADs at issue in this case. 

4 
Inspector in every civil penalty case would be subject to the same sort of harassing discovery 

propounded by Respondent in this case. 

Further, none of the alleged statements concern the Respondent's interactions with 

Respondent, but rather the Inspector's interactions with an air carrier for which he was a 

Principle Inspector. And all of those conversations occurred on or after the date of the issuance 

of a civil penalty letter against that air carrier as a result of (among other things) AMES's 

improper performance of maintenance. In the long-term relationship between a principle 

inspector and an air carrier, it would be entirely reasonable and appropriate for the inspector and 

the air carrier to discuss steps that the air carrier could take to ensure safe operation going 

··· forward;stepswhichmightincludeseveringa-relatiunship··with a· maintenance·contractorthat 

had resulted in numerous instances of the operation of aircraft in an unairworthy condition. 

Indeed, the approved list of maintenance contractors is something that an air carrier is required to 

submit to the FAA- it is not only appropriate for FAA personnel to have opinions on whether a 

maintenance provider is appropriate; it is part of their job to consider such things. 

That these questions are beyond the scope of discovery is further demonstrated by the 

explosion of irrelevant material that would consume this litigation if the Inspector's opinions 

about Respondent, and the manner in which he expressed those opinions, were ruled to be within 

the scope of discovery. For if the Respondent is allowed to "impeach" the inspector's credibility 

by seeking to present evidence that he made comments on the quality of Respondent's work and 

whether it was a good idea for CCIA to continue to use AMES, then it will become necessary for 

the FAA to present evidence of numerous maintenance failures by AMES, which otherwise have 

no relation to this case, and also evidence of complaints by CCIA personnel about the low 

quality of work performed by AMES, which CCIA was forced to use as a maintenance provider 

5 
by the parent corporation that owns both CCIA and AMES. As a practical matter, it should not 

be ruled that such a breadth of otherwise irrelevant material should come within the scope of this 

case, but it will become necessary if the Judge determines that an exploration of the Inspector's 

alleged negative opinions on AMES are somehow pertinent to the Inspector's credibility. 

Contrary to Respondent's assertions, this is simply a "shot in the dark." Respondent cites 

In re: Bald Mountain Air Services, but the ruling in that case concerned allegations of conduct 

(that the inspector had sent sexually explicit e-mails to the Respondent) that were "so bizarre and 

unprofessional" that they might indicate problems with the inspector, and involved allegations 

based on documentary evidence. See Motion at 2. No such allegations are present here. Rather, 

··Respondent make~r unverifiable·· accusations;·unsupported by any evidence, that the Inspector·· 

expressed negative opinions about Respondent, and on one occasion expressed a positive opinion 

about another repair station. The chasm between these allegations and some sort of bias is 

insurmountable. Respondent is not engaged in a legitimate exploration of bias, but rather in an 

attempt to use the discovery process to harass the FAA inspector who assembled the case against 

it. This is emphasized by Respondent's Request for Production #6 and the other requests noted 

above, which have no relation of any sort to AMES or to the facts of this case, but are simply 

unrelated accusations that the inspector was "intimidating" or used course language. 

In sum, Respondent has promulgated a series of discovery requests concerning whether 

the Inspector acted in an "intimidating" and "abusive" manner, and now seeks to compel 

responses to those requests based on a theory of bias that has no relation to the large majority of 

those requests. Most significantly, it seeks to compel responses based on a theory of bias that 

simply does not demonstrate any bias - whether the Inspector formed and expressed negative 

opinions of Respondent after years of investigating maintenance violations by Respondent has no 

6 
relation to whether the Inspector is credible or not when he testifies about those maintenance 

violations. Further, even if Respondent's theory of bias held water, at least eight of the ten 

discovery requests at issue bear no relation to that theory. 

The FAA Should Not Be Compelled to Produce Privileged Documents 

Respondent also seeks to have the Judge require the FAA to produce an unredacted copy 

of Section B of the EIR in this case. See Motion at 3-5. Section B of the EIR, and in particular 

the opinions expressed within that document, are covered by the attorney-client and deliberative 

process privileges. Each privilege independently precludes the production of the requested 

document. The FAA should not be required to produce the document, and no in camera review is 

··· ·neeessary;· ··· 

As an initial matter, it may be worth noting how an EIR is organized, and what Section B 

of the EIR is. An Enforcement Investigative Report contains three sections. See FAA Order 

2150.3B at 8-l to 8-3 (a copy of which is attached as Exhibit A). Section A of the EIR is Form 

2150-5, Section B is a Statement of the Case and Factors Affecting Sanction, and Section Cis 

Items of Proof (lOPs). See id. As noted in in Order 2150.3B, Section B is written by the 

reporting inspector and contains a statement of the facts that the Inspector believes are pertinent, 

along with the Inspector's feelings, opinions, and conclusions about the case, including 

recommendations about what appropriate action in the case is. See id. If the reviewing specialist 

at the regional office concurs that legal action is called for, then that specialist will also add a 

sanction recommendation memorandum to Section B. See id. The ultimate audience for Section 

B is agency counsel, who will consider those feelings, opinions, conclusions and 

recommendations in determining whether there was a violation (or violations) of the Federal 

7 
Aviation Regulations, whether legal action is appropriate, and what form the legal action should 

take. 

First, the document is covered by the attorney-client privilege. Respondent asserts that 

Section B was not produced at request of counsel, and was not for purposes of securing legal 

advice and is, therefore, not covered by the attorney-client privilege. Respondent is mistaken on 

both counts. Section B is produced at the request of counsel. FAA Order 2150.3B requires FAA 

personnel to prepare Section B when they are preparing an EIR to be sent to agency counsel. 

Order 2150.3B notes that it was "Initiated By: AGC-300," which is the enforcement division 

within the FAA's Office of Chief Counsel. Additionally, the EIR is made for the purpose of 

------- - ------- -- -----securing-legal advice-and-representation;-As discussed· a:bove, the-·EIR (including Section BJis --

presented to agency counsel so that counsel can determine whether and what legal action is 

appropriate. Just as a letter from Respondent to its attorney discussing the Notice of Proposed 

Civil Penalty and asking opposing counsel to represent it in this action would be privileged, so 

too is Section B privileged, for it serves the same role of informing the attorney about the case so 

that the attorney can make an appropriate legal decision. 

Second, the document is covered by the deliberative process privilege. Respondent does 

not dispute that Section B is privileged, but argues that the privilege should be disregarded here. 

In particular, Respondent argues for the first time that because it has made an allegation of bias 

against the reporting inspector, it should be permitted to review the entirety of Section B of the 

EIR. This argument is without foundation or merit. As an initial matter, it is worth noting that, if 

accepted, Respondent's position would mean the annihilation of the deliberative process 

privilege, because all that a litigant would have to do is allege bias, and would then get to review 

privileged documents, regardless of whether there was any foundation for or evidence in support 

8 
of that allegation. See Motion at 4-5. Even if the Judge only grants an in camera review, and then 

does not order any disclosure, such a ruling would mean that in most future FAA civil penalty 

litigations, the Judge may end up having to perform such a review, for there would be nothing 

stopping a Respondent from asserting without any foundation that the reporting inspector was 

overly harsh and that this demonstrates bias. 

Further, Respondent has not demonstrated any need to review the entirety of Section B, a 

high bar that Respondent does not make any significant effort to hurdle. Respondent provides no 

explanation of why it has any need of the documents, much less why its need is so strong that it 

can overcome the deliberative process privilege. Respondent asserts that it wants to see the 

········· -·----contents-of-Section B,···butdoes ·nutsaywhat evrdencecould··bec·ontained-witlllii tharitwouldneed or why it cannot obtain that evidence elsewhere. Nor does Respondent present any evidence 

of its own, which one would normally except to see when a party is requesting something so 

significant as the voiding of the deliberative process privilege. 

Respondent already has access to all of the information it needs for its defense of this 

case. Respondent has been provided with the factual portions of Section B, and asserts in its own 

Motion that the FAA's case is "easily contradicted by the facts." See Motion at 4. The 

Respondent has been provided with the factual observations of the reporting inspector, and other 

FAA personnel, and personnel from Respondent and CCIA had the opportunity to and did 

conduct their own inspections and review of the aircraft at the time the problems were 

discovered4 The Respondent is already aware of the aircraft maintenance manual sections at 

issue in this case, and why the FAA alleges that they were not followed. Knowing the Inspector's 

4 Respondent may no longer be satisfied with the reviews that it and CCIA conducted, inasmuch as they concluded 

that the maintenance had been improperly performed, but that is not a basis for removing the privilege. 

9 
opmwns, feelings, conclusions, and recommendations based on these matters will not add 

anything to Respondent's defense. 

Respondent's allegation of abrasive statements by the Inspector is, as discussed above, 

spurious and has no relation to bias. But even if it was taken to have any relevance to this case 

such that Respondent would be permitted to conduct discovery on the subject, Respondent has 

not demonstrated why it could only obtain information from privileged documents, as opposed to 

routine discovery requests or through talking to CCIA personnel who were allegedly present for 

the supposedly "intimidating" comments by the Inspector. Respondent has not even presented 

any evidence that these incidents occurred, merely the Respondent's own brief statements in its 

···· ········ · ·· motion-·andits··discoveryrequests; ·which(as·discussed-above}arenot·even·consistenrwtthea:chother. 

Additionally, requiring disclosure of Section B would have a substantial negative effect 

on the FAA's ability to conduct investigations. The FAA and agency counsel rely on frank and 

honest discussions between FAA personnel in order to properly investigate and assess potential 

aviation safety violations. To shred the privilege that shrouds these discussions would negatively 

impact the FAA's ability to conduction investigations, bring legal enforcement actions, and 

promote aviation safety. Respondent's request that the privilege be voided makes no 

consideration for the government's strong need to be able to conduct internal discussions in a 

frank manner. 

In sum, Respondent has made no serious, credible allegation of bias, nor has it identified 

any way in which is needs to review these privileged documents even if its "shot in the dark" 

allegations of bias were considered pertinent to this matter. Respondent admits that the 

10 
dellberative process privilege applies, but presents no sufficient basis for voiding that privilege in 

this case. 

Conclusion 

Respondent moves to compel the FAA to comply with certain discovery requests, those 

discovery requests bearing no relation to the allegations in the Complaint, but rather consisting 

of an effort by Respondent to harass the reporting inspector. Respondent's Motion to Compel 

should be denied. First, Respondent's discovery requests were untimely and Respondent has 

presented no reason for that untimeliness. Second, Respondent's allegations of bias, made for the 

first time in its Motion to Compel, would not show bias even if true. Third, Respondent's 

......... discoveryrequests.headittle,.ifany, relationtoitsallegationsofbias. Fourth,thedocumentsthat 

Respondent seeks are covered by the attorney-client privilege and, as Respondent admits, by the 

deliberative process privilege. But there is no exception to the attorney-client privilege, and the 

exception to the deliberative process privilege that Respondent raises is not applicable in this 

case. 

"(_ 

Respectfully submitted this U day of March, 2014. 

CHRIS£rH~R ~~ R. STEVENSON 

Attorney 

Office of the Regional Counsel 

II 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Response in Opposition to Motion to Compel was sent: 

original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

one copy via certified mail to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation ··l200NewJerseyAvenue;SE{EH~310) · ···· ·········· ······· ····· ······ ·················· --- - -----

Washington, DC 20590 

facsimile: (202) 366-7536 

one copy via certified mail to: 

Robert P. Silverberg, Esq. 

1101 301

h Street, NW, Suite 120 

Washington, D.C. 20007 

Facsimile: (202) 944-3306 

Le ssi tant 

Office of the Regional Counsel 

MAR 1 4 2014 

Dated 

12 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

National Policy 

SUBJ: FAA Compliance and Enforcement Program 

ORDER 

2150.38 

Effective Date: 

10/01/07 

This order contains policies, procedures, and guidelines for the Federal Aviation Administration's 

compliance and enforcement program. The order also articulates the FAA's philosophy for using 

various remedies, including education, corrective action, informal action, remedial training, 

administrative action, and legal enforcement action, to address noncompliance with statutory and 

regulatory requirements enforced by the FAA. It provides for the public a written statement of the 

Administrator's policy guidance for imposing sanctions for violations of such requirements. 

The order is used at all levels by agency personnel who are engaged in the investigation, reporting, 

and processing of enforcement actions. It applies to all offices with regulatory responsibilities. 

This revision of the order comprehensively updates policies, procedures, guidance, and assignments of 

responsibility.]t!'eorg1lnize~tl!e_()r<i<)ril11lJl1a_nllert110reuse[u)for"gencue!S()J111"laJ1djsayaila!Jl<O 

electronically to agency personnel and the public. The revision amends agency sanction guidance to 

conform to statutory changes resulting from Vision lOOCentury of Aviation Reauthorization Act and 

incorporates guidance into the agency's compliance and enforcement program order on policies and 

programs that have developed since the last comprehensive order revision in 1988. Those include 

policies relating to the FAA's exercise of its authority to administratively assess civil penalties and 

guidance on the agency's voluntary safety programs. 

A workgroup of agency personnel from the field and headquarters with extensive experience in 

statutory and regulatory enforcement reviewed the agency's policies and programs in this area to 

produce this comprehensive revision ofthe agency order on its compliance and enforcement program. 

Distribution: A-W-l;A-W (AT/PS/SM)-2;A-W (PP/AM/SF/ 

GCIFSIIAIVS)-3;A-XYZ (A T/AF/CS)-2;Z-X (AS/AM/GC/FS)-3; 

A-Y (AM/ARIGC)-3;A-Z (AM/AN/GC)-3;A-FAC/FACIFCS-O; 

A-F AF/FA T/FIA-O(L TD);ZFS-325 

Initiated By: AGC-300 

GOVERNMENT 

EXHIBIT 

& 
10/01/07 2150.38 

Chapter 8. Enforcement Investigative Report (EIR) 

1. Purpose for EIR. The Enforcement Investigative Report (EIR) is the means for 

documenting, assembling, organizing, and presenting all evidence and other relevant information 

obtained during an investigation. Because it is the record from which determinations of 

violations and sanctions are made, the report must be well prepared, factual, and provide the 

proof required to substantiate the enforcement actions contemplated. 

2. EIR Recommendations. If during an investigation, FAA investigative personnel determine 

that no violation occurred, they terminate the investigation and complete the appropriate sections 

of the ErR. If a letter of investigation was issued, FAA investigative personnel notify the 

recipient that the matter has been closed. IfF AA investigative personnel determine after 

evaluation of all the evidence obtained in the investigation that a violation appears to have 

occurred, then they recommend either administrative action or legal enforcement action in 

accordance with the guidance in chapter 5. FAA investigative personnel must exercise caution 

to ensure that neither the alleged violator nor any other unauthorized person is informed of their 

recommendations. - - ------------------ - -------- ------- - --------- --------------

3. Organization of an EIR. An EIR contains three sections labeled A, B, and C. The 

information contained in each section is described in chapter 8, subparagraphs 3.a., b., and c. 

FAA investigative personnel prepare an EIR in accordance with the guidance in this chapter. 

a. Section A. FAA Form 2150-5. Section A of the EIR contains a completed Form 

2150-5. FAA investigative personnel complete the information blocks on Form 2150-5 in 

accordance with the guidelines in chapter 8, paragraph 4. They enter information required on 

Form 2150-5 into the Enforcement Information System (EIS) using an interactive terminal that 

displays information as it is keyed. As a data element is completed, the EIS performs edit and 

validation routines to ensure the accuracy of each data element. The EIS edits user tables, 

performs range checks, and conducts omission detection and date validation to prevent erroneous 

information from reaching the EIS database. When an error is discovered, the terminal displays 

a descriptive error message and sounds an alarm. Two types of errors can be indicated by the 

system: fatal, which users must correct before they can continue, and warning, which is 

displayed to alert users to a potential error situation. After completion of all required fields on 

Form 2150-5, FAA investigative personnel print it for inclusion in the EIR. 

b. Section B. Statement of Case and Factors Affecting Sanction. The statement of case 

and factors affecting sanction is section B, the second part of the EIR, and is assembled as a 

separate item behind section A. In section B, FAA investigative personnel also provide any 

opinions and feelings they have about the case, evaluate the reliability of the evidence, and 

discuss any conflicting evidence in the case. They also state in this section their 

recommendations on sanction. 

(I) Statement of case. The statement 6f case is a concise statement of the facts and 

alleged statutory or regulatory violations found during the investigation and a discussion of how 

those facts establish the alleged violations. The statement of case identifies who did what, when, 

where, why, and how. FAA investigative personnel provide an orderly and logical statement of 

8-1 
10/01/07 2150.38 

the facts necessary to establish each element of each regulation believed violated and the related 

investigative action that established that fact. If the alleged violations involved one or a few 

flights, then each flight should be specifically identified with the aircraft, the origin, destination, 

place of landing, the name of the pilot in command, and the reasons why the FAA believes that 

individual was the pilot in command. If the flight involved an unairworthy aircraft, then each 

discrepancy needs to be stated. If the violation involved the failure to do something required or 

the doing of something prohibited, then the specific omission or commission is specifically 

stated. It is usually helpful to the reader if the summary of case is organized in chronological 

fashion. FAA investigative personnel support each factual statement by referring to an item of 

proof. The reference to the item of proof appears directly after the statement it supports, unless 

the item of proof supports an entire paragraph. If an item of proof supports an entire paragraph, 

FAA investigative personnel reference the item of proof at the end of the paragraph. FAA 

investigative personnel may briefly describe the origin or the basis of the investigation. They 

have latitude to go into as much detail as necessary given the complexity and nature of the 

particular case to assure an understanding of the investigation and apparent violations. When the 

investigation fails to establish a violation, FAA investigative personnel state this conclusion with 

an explanation of how the investigation led to this conclusion. 

· · · (2} Factonraffectingsarrctiorr. FAA investigative personnel afialyzeWliethefeachofllie 

factors in chapter 7, paragraph 4 or Appendix C is relevant and applies to the case. The factors 

in chapter 7, paragraph 4 are the nature of the violation, including how safety was affected; 

whether the violation was inadvertent and not deliberate; the certificate holder's level of 

experience; attitude of the violator; degree of hazard; action taken by employer or other 

authority; the use of the certificate; violation history; decisional law; ability to absorb sanction; 

consistency of sanction; whether the violation was reported voluntarily; and corrective action. 

The factors in Appendix C, which apply to hazardous materials cases, are found in paragraph 2 

and subparagraph 6 .d of that appendix. FAA investigative personnel address each factor in 

section B. If a factor is relevant to the case, FAA investigative personnel explain in section B of 

the EIR how the facts and circumstances support the applicability of that factor to the alleged 

violations. Using the guidance in chapter 7 or Appendix C, FAA investigative personnel explain 

whether the factor has a mitigating or aggravating effect on the amount of sanction for the 

apparent violations. FAA investigative personnel may support their analysis of the factors 

affecting sanction with reference to items of proof as appropriate. If a factor does not apply to 

the case, then FAA investigative personnel state in section B that the factor is not applicable. In 

each case, FAA investigative personnel summarize violation history information contained in 

EIS records. Printouts of violation history from the EIS or a program office-specific database, 

such as the Program Tracking and Reporting Subsystem (PTRS), are not included as items of 

proof in section C. 

(3) Other information. In section B, FAA investigative personnel also evaluate the 

reliability of the evidence and discuss any conflicting evidence in the case. If appropriate, they 

reference specific supporting items of proof. FAA investigative personnel fully analyze in 

section B any explanation provided by the apparent violator about the incident. Such 

explanation may appear in a record of interview of the apparent violator or a response to the 

letter of investigation. FAA investigative personnel set forth in section B any other mitigating, 

extenuating, or aggravating factors about the apparent violations. IfF AA investigative 

8-2 
10/23/09 2150.38 

Chg 1 

personnel have any opinions or feelings about the case, they state them in section B and 

label them as opinions. FAA investigative personnel state a conclusion, a recommendation 

about sanction, as appropriate, and set out the reasons justifYing their enforcement action 

recommendations and sanction recommendations. IfF AA investigative personnel receive any 

information after they forward the EIR to the next reviewing official, they prepare an analysis 

and an amendment to the EIR and forward them with the information to that reviewing official. 

Their analysis indicates whether, based on the information, they have changed their conclusions 

or recommendations about the facts, the alleged statutory or regulatory violations, or sanction. 

( 4) Enforcement Decision Process Worksheet. FAA investigative personnel include in 

section B of the EIR the Enforcement Decision Process Worksheet prepared in accordance with 

the guidance in Appendix F of this order. 

(5) Regional Program Office Sanction Recommendations. Regional program office 

personnel making a sanction recommendation about the amount of sanction, that is number of 

days or dollars, that should be sought in a case, prepare a separate written statement for such 

recommendation. In this written statement, Regional program office personnel state their 

specific sanction recommendation and the reasons supporting it. The written statement is 

·· · indndedtnsectionBoftb:eETR. 

c. Section C. Items of Proof. Section C consists of the items of proof and a numerical 

index of those items. The items of proof consist of originals or certified copies of each piece of 

evidence gathered to prove the apparent violations. When the size or nature of physical 

evidence precludes including it in the EIR, FAA investigative personnel include appropriate 

photographs of such evidence in the EIR and an explanation of where the physical evidence is 

located. The numerical index of the items of proof provides a brief statement of each item's 

content. Each item of proof is numbered consecutively. The items of proof are listed in a 

logical order to facilitate review. Each piece of documentary evidence referenced in section B 

ofthe EIR is included as an item of proof. The items of proof might include records of 

interview, witness statements, relevant portions of maintenance manuals or operations manuals 

pertinent to the violation, aeronautical charts current on the date of the violation, copies of 

logbooks, and photographs. Printed material about violation history from the EIS or a program 

office-specific database, such as the Program Tracking and Reporting Subsystem (PTRS) is not 

included as an item of proof in section C. FAA investigative personnel summarize relevant 

information from such database records and include it in section B of the EIR. 

4. Preparation of Form 2150-5. 

a. EIRNnmber. FAA investigative personnel enter the report number, which identifies a 

specific EIR, in the appropriate block on Form 2150-5. The report number is a 12-digit code 

consisting of the year, the region, the field office, and a sequential number as explained in 

chapter 9 (for example, 2005WPOIOOOI ). The block identified as related number refers to the 

report number for another EIR associated with the underlying incident. FAA investigative 

personnel enter the report number for the related EIR in the same code form. If there is more 

than one related case, FAA investigative personnel select a case to be the lead case and enter that 

case as the related EIR case number for all related cases. 

8-3