## SERVED: JULY23, 2013

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### 3l UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

) FEDERAL AVIATION ADMINISTRATION, ) ) Complainant, ) FAA DOCKET No. [TO BE ASSIGNED] )

v. )

. (Civil Penalty Action) ) MOUNTAIN AVIATION, INC., ) ) Respondent. ) OMS No. FM-2012-0875 )



# ____________________________ )

INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN

Found: 1) Respondentviolated 14 C.F.R. §§135.63(a)(4)(vi), 135.95(b) and 135.339(a)(2) as charged intheComplaint; 2) Respondentis assessed a civil penaltyof$21,450.



### I. The Complaint

This action stems from the circumstances ofcertain flight checks administered by
a Mountain Aviation pilot acting as a check**airman~** A check airman for aircraft is defined underthe Federal Aviation Regulations ("FARs") as a "person who is qualified to conductflight checks in an aircraft,

..." (14 C.F.R. §135.337(a)(1)).

The Federal Aviation Administration ("Complainant," "FAA," or "agency") contends that the pilot in question, Rodney Getty, had been unqualified to perform the flight checks. The agency asserts that Respondent Mountain Aviation ("Respondent" or "the carrier"), a Part 135 certificate holder located in Broomfield, CO, violated regulations by employing Mr. Getty as a check airman when he had failed to satisfactorily conduct a properly supervised proficiency or competency check during the preceding 24 months. The allegations ofthe agency's Complaint stem from that assertion (Tr. 65-66):

The Complaint sets outthree FAR violations: 1) section 135.63(a)(4)(vi), alleging the failure to keep a record containing the date and result ofevery initial and recurrent2

competency test and proficiency and route check required by Part 135; 2) section 135.95(b), charging the use ofan unqualified airman; and 3) section 135.339(a)(2), for assertedly using a check airman when that person had not satisfactorily conducted a proficiency orcompetency check underthe observation ofan agency inspector or an aircrew designated examiner in Mountain Aviation's employmentwithin the previous 24 months. The agency requests a total civil penalty of$21,450. 1 Respondent denied the charges.

I held a hearing on November27, 2012, in Denver, CO. Briefs have been filed and the matter now is ready for decision. 2



### II. Discussion

Airman Getty had qualified as a Part 135 check airman on August 13, 2008 by administering a competency and proficiency check to airman David G. Mosswhile underthe observation of FAA Principal Operations Inspector ("POl") Alvin (AI) Hankins. To remain qualified, FAR §135.339(a)(2) obligated Gettyto obtain biennial surveillance. That is, he needed to conduct a competency or proficiency check underthe observation ofeither an FAA inspector or a Respondent-employed "aircrew designated examiner"
no laterthan 24 months afterthe date of his competency and proficiency check to airman Moss. The deadline is defined as the last day ofthe month following the 24- month period; to retain his qualifications Gettytherefore required biennial surveillance
no laterthan September 30, 2010 (Exh. C-1; Tr. 22-23, 90-91).

It is not disputed that Mr. Getty administered competency and proficiency checks to airman John

### A. Kuzneski on December 16, 2010 (Exh. C-2; Tr. 25-26); to airman**St~phanie** 

### A. Wells on December 21, 2010 (Exh. C-3; Tr. 27); and to airman Jeremy 

### L. Sumpteron December26, 2010 (Exh. C-4; Tr. 28-29). It also is agreed that Sumpter flew as second-in-command ("SIC") for Respondentthe following month (Exh. C-5; Tr. 30). These checks each were outside the biennial surveillance deadline ofSeptember 30, 2010. Respondent, however, asserts that airman Getty had received the necessary §135.339(a)(2) observation check on March 26, 2010, within the 24-month window (see Tr. 117). Complainant demurs. Therein lies the nub ofthe controversy.
Respondent's argument rests on its assertion thatwhen airman Getty administered the competency and proficiency checks to the three airmen in December 2010, he had been clothed with the authority of, and was in fact, an aircrew designated examiner ("ADE"). Gary Emmerson, Mountain Aviation's Chief Pilot atthe time, appeared as a witness. Hewas credible. Mr. Emmerson explained thatthe basis for Respondent's conclusion stemmed from the intersection oftwo events. Thefirst
concerns telephone conversations he had had with POl Hankins in which he attempted

1Tr. 12-14. The Complaint, sectionIII, paragraph 3, had setout a different amount which turned outtobe a typographical error. The errorwas corrected atthe hearingto conform to the $21,450 amount Complainant is seeking. Tr. 8. 2 Complainant'sBriefwillbe cited as "Compl. Br."; Respondent'sHearingBriefas "Resp. Br."; andComplainant's Reply Briefas "Compl. ReplyBr."3

to arrange for Hankins' observation ofairman Getty. Hankins, as an agency inspector, would constitute a qualified observer under §135.339(a)(2). Emmerson testified that Hankins had asked ifa Respondent check airman had administered a check ride to another check airman in the preceding 24 months. Emmerson replied "Yes." Airman Getty had administered a competency and proficiency check to airman Oren C. (Chip) Taft on March 26, 2010, and airman Taft had done the same for airman Gettythe same day. Each recorded that the other satisfactorily completed the check (Exhs. R-4, R-5, and R-6, p. 2, ,-r4). Inspector Hankins, according to Emmerson, then told Emmerson to allowthe check airmen to "continue checking" until he, Hankins, became available for
an observation check. Emmerson acknowledged that Hankins had not used the specific words "aircrew designated examiner" (Tr. 125-26, 142; Exh. R-6; p. 1,**~2).** The second eventforming the basis for Respondent's conclusion was that airmen Taft and Getty each had held agency letters designating and certifying them as check airmen. The letters, dated September 5, 2006 for Getty and January 18, 2008 for Taft, and signed on behalfofthe agency by POl Hankins, authorized them as check pilots to perform "all checks" (Exhs. R-2 and R-3). The two circumstances- the inferred permission to "continue checking" from Hankins in the phone conversations and the certifying letters

-- together suggested to Mr. Emmerson that the pilots had attained the position ofAD

### E. The check rides of March 26, 2010, then, constituted the required observation check, Emmerson, and Respondent, concluded (Tr. 122-29, 132, 139-41; Exh. R-6, p. 2,**~5).** Richy Bjelkevig, Respondent's President and a pilot as well, supported Emmerson's testimony. He stated that he understood the "all checks" designation to
mean that Mountain Aviation was authorized to accomplish any check requirements the company needed through its check airmen (Tr. 151).
Inspector Hankins appeared for the Complainant. Ifound him credible. Hankins denied that he had asked the then-Chief Pilot of Mountain Aviation, Emmerson, ifthe check airmen had flown with each other in satisfaction ofthe §135.339(a)(2) requirement (Tr. 63-65, 71-72). He also denied that the agency's certification ofairman Getty as a check airman in his letter ofSeptember 5, 2006 designated airman Getty as an aircrew designated examiner. Hankins' authorization and certification for Chip Taft
was similarly circumscribed, he added (Tr. 56-59; Exh. C-9, pp. 1, 2). Mountain Aviation's operation simply does not have ADEs, inspector Hankins emphasized. He explained that only designated pilot examiners may be ADEs, and these airmen were not so designated (Tr. 58-60, 66). He had never, inspector Hankins insisted, advised Mountain Aviation thatthey had an ADE (Tr. 77).

Aviation safety inspector Peter Popp also appeared for Complainant. Inspector Popp was credible. He testified concerning the nature ofthe ADE program. Popp stated thatthe ADE program is created between the FAA and an operator bywhich check airmen are given the authority to certify other pilots as check airmen under §135.339(a)(2). The Inspector's Handbook, FAA Order 8900.1, specifies how an ADE program is created (Tr. 84, 103; Exh. C-11). Typically, the witness said, the air carrier approaches the FAA and seeks it. Permission normally is based on need; a program will be created when the agency does not have enough inspectors to check and rate the4

pilots {Tr. 86-87). For a valid program an air carrier mustfirst employ an "aircrew program designee." FAA inspectors train these designees. The process takes anywhere from six months to two years {Tr. 88-89, 106; 

### see Exh. C-11, p. 22).
Inspector Popp also supported POl Hankins' interpretation ofthe letters certifying airmen Getty and Taft as check airmen. The designation "All Checks," he said, grants permission to a check airman to do proficiency checking in a simulator and in an aircraft, and line checking in an aircraft- but no more. It does not, he insisted, confer ADE status on a check airman {Tr. 89-92; Exh. C-9, p. 2).



### III. Decision

Ifind and conclude that Complainant has proven the violations alleged.
Complainant showed that airman Rodney Getty had not obtained the biennial surveillance necessary to maintain his qualifications as a check airman when he administered competency and proficiency checks to three airmen in December2010. Respondent's contention that airman Getty had been constituted an aircrew designated examiner atthattime- an affirmative defense which Respondent must prove {see Compl. Reply Br., p. 4) --missesthe mark.

In view ofthe recognized process by which the FAA normally creates ADEs, it
was unreasonable and improperfor Mountain Aviation to have concluded that airman Gettywas an ADE because on March 26, 2010 he had exchanged competency and proficiency checks with airman Chip Taft. The evidence showed thatthe agency establishes ADEs through a number ofsteps. Substantial education and training is involved. The process takes a minimum ofsix months and as long as two years. The carrier is aware ofthis pattern. Against this background -and assuming, without deciding, that Chief Pilot Emmerson's version ofthe telephone conversations with inspector Hankins is correct

-- Respondent read fartoo much into the agency's words and actions. The agency had taken none ofthe steps typically involved in creating an ADE. The structure Respondent claims to have seen in fact lacked the basic building blocks necessaryfor its completion.

Mountain Aviation, moreover, concedes that the agency had never advised itthat the carrier, in terms, employed an ADE. Respondent drew its conclusion by inference. As Mr. Emmerson put it, the ADE designation "fit in the context ofthe conversation we had" {Tr. 139). This simply is not enough. Emmerson noted that Respondent regularly contacted the agency's POl by telephone (Tr. 123), yet no one at Mountain Aviation attempted to clarify with the agency bythat method of communication, or any other, whetherthe carrier in fact employed an ADE. It offered no reason why. Respondent in these circumstances had no legitimate basis to deduce that it employed an ADE 

### (see Compl. Br., pp. 5-6).
Respondent notes in its defense that neitherthe term "aircrew designated examiner" is defined in the FARs nor is the agency's establishment oftheADE program5

specifically contemplated there. Butthese observations do not avail it (see Tr. 93-95, 103-04; Exh. C-11, p. 22; Resp. Br., pp. 3-4). The agency had initiated a safety-based program whose broad outlines were duly established in the FARs. This it was permitted to do. The FAA maytap its expertise to create and implement programs furthering its Congressional mandate to establish, oversee, and promote safety in aviation. See, e.g., Aircraft Owners andPilotsAssociation v. FederalAviation Administration, 600 F.2d 965 (D.C. Cir. 1979).

Mountain Aviation alsoargues that Complainant is estopped from denying that airmen Getty and Taftwere ADEs. In support, it contends that the elements ofestoppel
were met: the carrier reasonably relied on POl Hankins' representations in his conversations with Emmerson to the carrier's detriment (Resp. Br., pp. 6-7). This contention fails as well. Estopping the government requires the successful scaling ofa formidable barrier. The private litigant bears "an extraordinarily high burden." Wertz v. U.S., 51 Fed.CI. 443 (Fed.CI. 2002). At minimum the party making the assertion must show "affirmative misconduct" by government representatives. Henry v. U.S;, 870 F.2d 634, 637 (Fed.Cir. 1989). Even a false statement may not constitute affirmative misconduct ifit is.not part ofa "deliberate lie

... or a pattern offalse promises." Mukherjee v. Immigration andNaturalization Service, 793 F.2d 1006, 1009 (9 Cir. 1986). Assuming without deciding that Emmerson's version ofthe conversations is true, it is clear that Hankins' rather opaque statements fail to rise to the level of affirmative misconduct. Estoppel may not be invoked in any event because foreclosing the governmentfrom denying that airman Getty effectively was an ADE when he administered the December2010 checks would undermine the agency's paramount mission to promote and enhance air safety without a sufficiently compelling countervailing reason. It would in effect permit an unsafepractice to stand. That outcomewould be unacceptable. 3 Forall these reasons, Respondent's plea ofestoppel mustfail.

All additional arguments the parties have made have been considered and are · rejected as without merit.

In view ofthe foregoing, Ifind and conclude that Respondent Mountain Aviation, Inc. violated FAR §§135.63(a)(4)(vi), 135.95(b), and 135.339(a)(2) as charged in the agency's Complaint. Complainant proved a violation of§135.63(a)(4)(vi) in view ofthe fact that no records existed showing that airman Getty had received the required §135.339(a)(2) inspection since, indeed, he had not. The agency proved the §135.95(b) allegation because the evidence showed that Respondent had used an unqualified airman, Jeremy Sumpter. Finally, Complainant proved a violation of §135.339(a)(2) through showing that airman Gettyfailed to obtain the required biennial surveillance bythe deadline of September 30, 2010.

3 Itis noteworthy in this connectionthatour sister agency, theNational Transportation Safety Board("NTSB"),has held thatthe where the public interest and safety in air commerce andtransportation are implicated, the government may neverbe estopped. RonaldG. Fisher, EA-2986, 6NTB 1292, 1294 (1989), aff'dsub. nom. Fisherv. Departmentof Transportation, 917 F.2d27 (9 Cir. 1990); ErikMilton Poole, EA-4425, 1996 NTSB Lexis 11 (February 7, 1996). NTSB decisions, while notbinding on the FAA, maybepersuasive. Westair Commuter Airlines, Inc. d/b/a UnitedExpress, FAA OrderNo. 93-18, 1993 WL 833102 (June 9, 1993).6



### IV. Penalty

Iwill assess a civil penalty against Respondent of$21,450.

The agency's guidelines forthe computation ofsanction, FAA Order No. 2150.3B, consider Mountain Aviation to be a "small business concern."4 Further, Complainant contends, the nature ofthe infractions warrant a civil penalty in the moderate to maximum range. A moderate-to:-maximum sanction for a small business
concern would result in a civil penalty between $3,300, atthe low end ofthe moderate range, and $11,000, the top figure in the maximum range offines, for each violation. Complainant cites neither mitigating nor aggravating circumstances. According to the sanction guidelines, the "middle ofeach recommended sanction range would be for a single violation without aggravating or mitigating factors" (Exh. C-8, p. B-2). The median of$3,300 and $11,000 is $7,150 (Exh. C-8, p. B-4; Tr. 37-38). Because airman Getty checked three airman outside the biennial-evaluation deadline for 12types of flight checks in total, Complainant stated, it could have suggested an assessment of $7,150 times 12, or $85,800. 5 However, it considered in its computation that Mountain Aviation violated the regulation driving this proceeding, FAR §135.339(a)(2), three times, and committed two other FAR violations, for a total offive. The average assessment of$7,150 perviolation times five violations totals $35,750. Butthe agency opted to askfor a "significantly" lowerfigure, $21,450. Thatfigure equals $7,150 times three. Complainant argues that a sanction amount any lowerthan that would fail to provide a sufficient deterrent (Tr. 39; Campi. Br., pp. 9-10).
Respondent did not address the FAA's suggested civil penalty amount directly. It argues that it moved quicklyto remediate the problem once it learned ofthe agency's
concerns. It suspended Mr. Getty and conducted an audit to determine ifthe carrier's other check airmen were qualified. I subscribe to the import ofthe testimony of Complainant's witness Christopher Lang, an FAA aviation safety inspector, who stated that Respondent's reaction would be expected ofany carrier. It warrants no mitigation of penalty. Moreover, as inspector Lang also noted, using an unqualified check airman forflight checks is an inherently unsafe practice (Tr. 39-40).
Againstthis background, Ifind that a civil penalty of$21 ,450 is appropriate. It is warranted bythe totality ofthe circumstances. Mountain Aviation acted unreasonably and irresponsibly in concluding that airman Getty was an ADE. Respondent's actions compromised safety needlessly. The penalty in this situation should be substantial. It will, Ifind, act as a fitting deterrentto Respondent and similar entities. The assessment will fulfill the statutory purpose.

On the basis ofthe foregoing, I hereby assess a civil penalty of$21,450 against

4 Appendix B to OrderNo. 2150.3B, atExh. C-8, p. B-3; Tr. 37. Itookjudicial notice ofthe guidelines. Tr. 35-36. I will use the exhibitnumberdenominatedbyComplainant. 5The kinds offlight checks include so-called 299 checks (administeredunder§135.299), which are line checks; 297 checks (administeredunder §135.297), instrumentproficiency checks; and 293(a) and 293(b) checks (§135.293(a) and (b)), respectively currentknowledge and competencytests. Tr. 57-58; Exh. C-1.7



### Respondent Mountain Aviation, Inc. for a violation of 14 C.F.R. §§135.63(a)(4)(vi), 135.95(b), and 135.339(a)(2),6



### Attachment

- Service List

6 This decisionmay be appealedto the Administrator ofthe FAA. The notice ofappeal mustconformto sections 13.210, 13.211(e) and 13.233 ofthe Rules ofPractice, whichrequire that anotice ofappeal 1)befiled notlaterthan 10 days (plus an additional five days ifmailed)from the service date ofthisdecision, and 2)beperfected witha written brieformemorandum not laterthan 50 days (plus an additional five, ifmailed) from the service date ofthis decision. Thenotice ofappeal andbrieformemorandum must eitherbe a) mailed tothe Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 20591, Attn: Hearing DocketClerk, AGC-430, Wilbur WrightBuilding-Suite2W1000, orb) deliveredpersonally orvia expeditedcourierservice tothe Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur WrightBuilding-Suite2W1000, Washington, D.C. 20591, Attn: HearingDocket Clerk, AGC-430. A copy ofthenotice ofappeal andbrieformemorandum also mustbe sentto agency counsel. Service uponthe presidingjudge is optional.

### 8

SERVICE LIST

ORIGINAL & ONE COPY



### FederalAviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite2W10001



### Kent S. Jackson, Respondent's Counsel 

### Jackson & Wade, LLC 2168 Midland Drive Shawnee, KS 66218 TEL: 913-338-1700 FAX: 913-338-1755 ONE COPY



### Kyle E. Lomazow, Complainant's Counsel 

### Attorney, Office ofRegional Counsel Northwest Mountain Region, ANM-7 Federal AviationAdministration 1601 Lind Avenue, S.W. Renton, WA 98057 TEL: 425-227-1847 FAX: 425-227-1007

The Honorable Richard C. Goodwin,AdministrativeLawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAX: 202-366-7536 FDMS No. FAA-2011-0875 (Civil Penalty Action)

1 Service was by U.S. Mail. For service in person orby expeditedcourier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2WIOOO, Washington, DC 20591; Attention: Hearing DocketClerk, AGC-430.