SERVED: JULY 23, 2013 

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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 LAW JUDGE RICHARD C. GOODWIN 

Found: 1) Respondent violated 14 C.F.R. §§135.63(a)(4)(vi), 135.95(b) and 135.339(a)(2) as charged 

in the Complaint; 

2) Respondent is assessed a civil penalty of$21,450. 

I. The Complaint 

This action stems from the circumstances of certain flight checks administered by 

a Mountain Aviation pilot acting as a check airman~ A check airman for aircraft is 

defined under the Federal Aviation Regulations ("FARs") as a "person who is qualified 

to conduct flight 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 of the agency's Complaint stem from that 

assertion (Tr. 65-66): 

The Complaint sets out three FAR violations: 1) section 135.63(a)(4)(vi), alleging 

the failure to keep a record containing the date and result of every initial and recurrent 
2 

competency test and proficiency and route check required by Part 135; 2) section 

135.95(b), charging the use of an unqualified airman; and 3) section 135.339(a)(2), for 

assertedly using a check airman when that person had not satisfactorily conducted a 

proficiency or competency check under the observation of an agency inspector or an 

aircrew designated examiner in Mountain Aviation's employment within the previous 24 

months. The agency requests a total civil penalty of $21,450. 1 Respondent denied the 

charges. 

I held a hearing on November 27, 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. Moss while 

under the observation of FAA Principal Operations Inspector ("POl") Alvin (AI) Hankins. 

To remain qualified, FAR §135.339(a)(2) obligated Getty to obtain biennial surveillance. 

That is, he needed to conduct a competency or proficiency check under the observation 

of either an FAA inspector or a Respondent-employed "aircrew designated examiner" 

no later than 24 months after the date of his competency and proficiency check to 

airman Moss. The deadline is defined as the last day of the month following the 24-

month period; to retain his qualifications Getty therefore required biennial surveillance 

no later than 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. 

Sumpter on December 26, 2010 (Exh. C-4; Tr. 28-29). It also is agreed that Sumpter 

flew as second-in-command ("SIC") for Respondent the following month (Exh. C-5; Tr. 

30). These checks each were outside the biennial surveillance deadline of September 

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 of the controversy. 

Respondent's argument rests on its assertion that when 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 at the time, 

appeared as a witness. He was credible. Mr. Emmerson explained that the basis for 

Respondent's conclusion stemmed from the intersection of two events. The first 

concerns telephone conversations he had had with POl Hankins in which he attempted 

1 Tr. 12-14. The Complaint, section III, paragraph 3, had set out a different amount which turned out to be a 

typographical error. The error was corrected at the hearing to conform to the $21,450 amount Complainant is 

seeking. Tr. 8. 2 Complainant's Brief will be cited as "Compl. Br."; Respondent's Hearing Brief as "Resp. Br."; and Complainant's 

Reply Brief as "Compl. Reply Br." 
3 

to arrange for Hankins' observation of airman Getty. Hankins, as an agency inspector, 

would constitute a qualified observer under §135.339(a)(2). Emmerson testified that 

Hankins had asked if a 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 Getty the 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 

allow the 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 

event forming 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 

behalf of the 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 of AD 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. I found him credible. Hankins 

denied that he had asked the then-Chief Pilot of Mountain Aviation, Emmerson, if the 

check airmen had flown with each other in satisfaction of the §135.339(a)(2) 

requirement (Tr. 63-65, 71-72). He also denied that the agency's certification of airman 

Getty as a check airman in his letter of September 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 that they had an ADE (Tr. 77). 

Aviation safety inspector Peter Popp also appeared for Complainant. Inspector 

Popp was credible. He testified concerning the nature of the ADE program. Popp 

stated that the ADE program is created between the FAA and an operator by which 

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 the 
4 

pilots {Tr. 86-87). For a valid program an air carrier must first employ an "aircrew 

program designee." FAA inspectors train these designees. The process takes 

anywhere from six months to two years {Tr. 88-89, 1 06; see Exh. C-11, p. 22). 

Inspector Popp also supported POl Hankins' interpretation of the 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 

I find 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 December 2010. 

Respondent's contention that airman Getty had been constituted an aircrew designated 

examiner at that time- an affirmative defense which Respondent must prove {see 

Compl. Reply Br., p. 4) --misses the mark. 

In view of the recognized process by which the FAA normally creates ADEs, it 

was unreasonable and improper for Mountain Aviation to have concluded that airman 

Getty was an ADE because on March 26, 2010 he had exchanged competency and 

proficiency checks with airman Chip Taft. The evidence showed that the agency 

establishes ADEs through a number of steps. Substantial education and training is 

involved. The process takes a minimum of six months and as long as two years. The 

carrier is aware of this pattern. Against this background -and assuming, without 

deciding, that Chief Pilot Emmerson's version of the telephone conversations with 

inspector Hankins is correct -- Respondent read far too much into the agency's words 

and actions. The agency had taken none of the steps typically involved in creating an 

ADE. The structure Respondent claims to have seen in fact lacked the basic building 

blocks necessary for its completion. 

Mountain Aviation, moreover, concedes that the agency had never advised it that 

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 of the 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 by that method of communication, or any other, 

whether the 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 neither the term "aircrew designated 

examiner" is defined in the FARs nor is the agency's establishment of the ADE program 
5 

specifically contemplated there. But these 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 may tap its expertise to create and implement programs furthering its 

Congressional mandate to establish, oversee, and promote safety in aviation. See, e.g., 

Aircraft Owners and Pilots Association v. Federal Aviation Administration, 600 F.2d 965 

(D.C. Cir. 1979). 

Mountain Aviation also argues that Complainant is estopped from denying that 

airmen Getty and Taft were ADEs. In support, it contends that the elements of estoppel 

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 of a 

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 if it is. not part of a "deliberate lie ... or a pattern of false promises." 

Mukherjee v. Immigration and Naturalization Service, 793 F .2d 1006, 1009 (9 Cir. 

1986). Assuming without deciding that Emmerson's version of the 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 government from denying that airman Getty effectively was an ADE when he 

administered the December 2010 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 unsafe practice to stand. That 

outcome would be unacceptable.3 For all these reasons, Respondent's plea of estoppel 

must fail. 

All additional arguments the parties have made have been considered and are · 

rejected as without merit. 

In view of the foregoing, I find 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 of the 

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 Getty failed to obtain the required biennial 

surveillance by the deadline of September 30, 2010. 

3 It is noteworthy in this connection that our sister agency, the National Transportation Safety Board ("NTSB"), has 

held that the where the public interest and safety in air commerce and transportation are implicated, the government 

may never be estopped. Ronald G. Fisher, EA-2986, 6 NTB 1292, 1294 (1989), aff'd sub. nom. Fisher v. 

Department of Transportation, 917 F.2d 27 (9 Cir. 1990); Erik Milton Poole, EA-4425, 1996 NTSB Lexis 11 

(February 7, 1996). NTSB decisions, while not binding on the FAA, may be persuasive. Westair Commuter 

Airlines, Inc. d/b/a United Express, FAA Order No. 93-18, 1993 WL 833102 (June 9, 1993). 
6 

IV. Penalty 

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

The agency's guidelines for the computation of sanction, FAA Order No. 

2150.3B, consider Mountain Aviation to be a "small business concern."4 Further, 

Complainant contends, the nature of the 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, at the low end of the moderate 

range, and $11,000, the top figure in the maximum range of fines, for each violation. 

Complainant cites neither mitigating nor aggravating circumstances. According to the 

sanction guidelines, the "middle of each 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 12 types 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 of five. The average 

assessment of $7,150 per violation times five violations totals $35,750. But the agency 

opted to ask for a "significantly" lower figure, $21,450. That figure equals $7,150 times 

three. Complainant argues that a sanction amount any lower than 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 quickly to remediate the problem once it learned of the agency's 

concerns. It suspended Mr. Getty and conducted an audit to determine if the carrier's 

other check airmen were qualified. I subscribe to the import of the testimony of 

Complainant's witness Christopher Lang, an FAA aviation safety inspector, who stated 

that Respondent's reaction would be expected of any carrier. It warrants no mitigation 

of penalty. Moreover, as inspector Lang also noted, using an unqualified check airman 

for flight checks is an inherently unsafe practice (Tr. 39-40). 

Against this background, I find that a civil penalty of $21 ,450 is appropriate. It is 

warranted by the totality of the 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, I find, act as a fitting deterrent to Respondent and similar entities. The assessment 

will fulfill the statutory purpose. 

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

4 Appendix B to Order No. 2150.3B, at Exh. C-8, p. B-3; Tr. 37. I took judicial notice of the guidelines. Tr. 35-36. 

I will use the exhibit number denominated by Complainant. 

5 The kinds of flight checks include so-called 299 checks (administered under§ 135.299), which are line checks; 297 

checks (administered under § 135.297), instrument proficiency checks; and 293(a) and 293(b) checks (§ 135.293(a) 

and (b)), respectively current knowledge and competency tests. 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 decision may be appealed to the Administrator of the FAA. The notice of appeal must conform to sections 

13.210, 13.211 (e) and 13.233 of the Rules of Practice, which require that a notice of appeal 1) be filed not later than 

10 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) be perfected with a 

written brief or memorandum not later than 50 days (plus an additional five, if mailed) from the service date of this 

decision. The notice of appeal and brief or memorandum must either be a) mailed to the Federal Aviation 

Administration, 800 Independence Avenue, S.W., Washington, DC 20591, Attn: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building-Suite 2W1 000, orb) delivered personally or via expedited courier service to the Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, 

D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice of appeal and brief or memorandum also 

must be sent to agency counsel. Service upon the presiding judge is optional. 
8 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W10001 

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 of Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, WA 98057 

TEL: 425-227-1847 

FAX: 425-227-1007 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Staff Assistant 

FAX: 202-366-7536 

FDMS No. FAA-2011-0875 

(Civil Penalty Action) 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.