SERVED JUNE 3,2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

DARBY AVIATION, INC. 

Respondent. 

FAA DOCKET NO. CP08SO0026 

(Civil Penalty Proceeding) 

DMS NO. FAA-2008-1192 

ADMINISTRATIVE LAW JUDGE'S INITIAL DECISION 

Darby Aviation, Inc. is a firm that is certificated to conduct flight 

operations under Part 135 of the Federal Aviation Regulations (FAR) fi-om 

the airport at Muscle Shoals, Alabama. It operates several aircraft, including 

a Lear Jet Model 35, a Gulfstream model GA-1159 and a Bell model 206B 

helicopter. One of its pilots is Elton H. Darby. Mr. Darby is rated in all 

three of the types of aircraft. As a pilot for a carrier that carries passengers 

for hire, Mr. Darby is required by the FAR to pass a number of tests as 

prescribed by the regulations. There is the annual test of a pilot's knowledge 

prescribed by § 135.293(a) of the FAR, the annual test of the pilot's 

competency prescribed by § 135.293(b) of the FAR, the semiannual check of 

the pilot's proficiency in operations under instrument flight rules as 

prescribed by § 135.297 (applicable only to pilots that operate under IFR 

conditions) and, as prescribed in § 135.299 of the FAR, the aimual check of 

the pilot's ability to fly to and from the airports and over at least one of the 

routes he will use during the upcoming period of time. 

In this proceeding, we are primarily concerned with Mr. Darby's 

qualifications under the requirement for an annual test of his knowledge, as 

prescribed in § 135.293(a) of the FAR. His employer is charged with 

violating § 135.293(a) by using Mr. Darby as a pilot during periods when his 

qualifications to serve in that capacity had lapsed. Specifically, the 

complaint in this proceeding charged the Respondent with using Mr. Darby 

W!ON 
as a pilot during a period when he was overdue for the annual test of his 

knowledge prescribed by § 135.293(a). A civil penalty of $32,200 was 

sought. 

A hearing was held before me in Washington, D.C. on March 15-16, "^ 

2010. At the conclusion of the hearing, I asked the parties whether they 

wished to submit post-hearing briefs. Counsel for the Complainant indicated 

that he would be satisfied to rest his case on post-hearing closing oral 

argument; however, counsel for the Respondent insisted that she would 

prefer to file a written brief Acceding to her request, I set deadlines for 

submission of simultaneous post-hearing briefs. The Complainant's brief 

was received on time. But the Respondent, in spite of its insistence at the 

hearing on written briefing, did not submit a timely brief. Hence, there will 

be no reply briefs, and the case is now ripe for decision. 

To understand the issues raised by the parties, it is necessary to 

consider §135.293 as a whole. Section 135.293 reads as follows: 

(a) No certificate holder may use a pilot, nor may any person 

serve as a pilot, unless, since the beginning of the 12**^ calendar 

month before that service, that pilot has passed a written or oral 

test, given by the Administrator or an authorized check pilot, on 

that pilot's knowledge in the following areas— 

(1) The appropriate provisions of parts 61, 91, and 135 of 

this chapter and the operations specifications and the manual of 

the certificate holder; 

(2) For each type of aircraft to be flown by the pilot, the 

aircraft power-plant, major components and systems, major 

appliances, performance and operating limitations, standard and 

emergency operating procedures, and the contents of the 

approved Aircraft Flight Manual or equivalent, as applicable; 

(3) For each type of aircraft to be flown by the pilot, the 

method of determining compliance with weight and balance 

limitations for takeoff, landing and en route operations; 

(4) Navigation and use of air navigation aids appropriate 

to the operation or pilot authorization, including, when 

applicable, instrument approach facilities and procedures; 

(5) Air traffic control procedures, including IFR 

procedures when applicable; 
(6) Meteorology in general, including the principles of 

frontal systems, icing, fog, thunderstorms, and windshear, and, 

if appropriate for the operation of the certificate holder, high 

altitude weather; 

(7) Procedures for— 

(i) Recognizing and avoiding severe weather situations; 

(ii) Escaping from severe weather situations, in case of 

inadvertent encounters, including low-altitude windshear 

(except that rotorcraft pilots are not required to be tested on 

escaping from low-altitude windshear); and 

(iii) Operating in or near thunderstorms (including best 

penetrating altitudes), turbulent air (including clear air 

turbulence), icing, hail, and other potentially hazardous 

meteorological conditions; and 

(8) New equipment, procedures, or techniques, as 

appropriate. 

(b) No certificate holder may use a pilot, nor may any 

person serve as a pilot, in any aircraft unless, since the 

beginning of the 12* calendar month before that service, that 

pilot has passed a competency check given by the 

Administrator or an authorized check pilot in that class of 

aircraft, if single-engine airplane other than turbojet, or that 

type of aircraft, if helicopter, multiengine airplane, or turbojet 

airplane, to determine the pilot's competence in practical skills 

and techniques in that aircraft or class of aircraft. The extent of 

the competency check shall be determined by the Administrator 

or authorized check pilot conducting the competency check. 

The competency check may include any of the maneuvers and 

procedures currently required for the original issuance of the 

particular pilot certificate required for the operations authorized 

and appropriate to the category, class and type of aircraft 

involved. For the purposes of this paragraph, type, as to an 

airplane, means any one of a group of airplanes determined by 

the Administrator to have a similar means of propulsion, the 

same manufacturer, and no significantly different handling or 

flight characteristics. For the purposes of this paragraph, type, 

as to a helicopter, means a basic make and model. 
(c) The instrument proficiency check required by 

§135.297 may be substituted for the competency check required 

by this section for the type of aircraft used in the check. 

(d) For the purpose of this part, competent performance" 

of a procedure or maneuver by a person to be used as a pilot 

requires that the pilot be the obvious master of the aircraft, with 

the successftil outcome of the maneuver never in doubt. 

(e) The Administrator or authorized check pilot certifies 

the competency of each pilot who passes the knowledge or 

flight check in the certificate holder's pilot records. 

(f) Portions of a required competency check may be 

given in an aircraft simulator or other approved training device, 

if approved by the Administrator. 

A few noteworthy points emerge from a facial analysis of 

§135.293. 

First. The section prescribes two different testing regimes. The 

first is a test of the prospective pilot's knowledge. The items to be 

tested are described in paragraph (a) of the section. Paragraph (b) of 

§ 135.293 provides for a test of the pilot's competency. A pilot who 

successfiilly completes one of the tests is not qualified unless and until 

he passes the second test, and a Part 135 carrier that uses such a pilot 

is in violation of the FAR. 

Second. The provisions of § 135.293(a) and (b) are disjunctive. 

There is no language in the regulation that requires both tests to be 

taken at the same time or to be administered by the same person. 

Although, the knowledge test prescribed by § 135.293(a) is often given 

during the pilot's annual "check ride," to determine his or her 

proficiency under § 135.293(b), there is nothing in the language of the 

regulation, or elsewhere, that requires the two tests to be administered 

on the same occasion. The Complainant's sedulous insistence that 

§ 135.293(a) requires the knowledge test to be passed on the occasion 

of the putative pilot's annual "check ride" finds no support in the 

language of the regulation. Nor is there any fiinctional reason why the 

two tests cannot be administered separately, as long as each is 
administered by a representative of the Administrator (i.e., an 

authorized FAA employee) or an authorized "check pilot." 

Third. Section 135.293(a) does not require a written test or 

require the questions asked and answers given to be preserved by the" 

certificate holder that employs the pilot. As the regulation plainly 

states, the test of the pilot's knowledge may be either oral or written, 

so that in the event of an oral test, there may be no paper trail created. 

This does not mean, however, that there would be no evidence that the 

test was given or passed. Paragraph (e) of § 135.293 requires the 

person who administers a test that the pilot has passed to certify that 

fact "in the certificate holder's pilot records." 

Fourth. The requirement for an annual test of a pilot's 

"competency" can be waived if the pilot has taken and passed the 

instrument proficiency test required under § 135.297 for the same type 

of aircraft that would otherwise be used for the pilot's check ride 

under §135.293(b). That is the clear mandate of paragraph (c) of 

§135.293 ("The instrument proficiency check required by §135.297 

may be substituted for the competency check required by this section 

for the type of aircraft used in the check.") Contrary to the argument 

of Respondent's counsel during her opening statement at the hearing, 

there is no provision in the regulation for substitution of the 

instrument proficiency test in lieu of the test of the pilot's knowledge 

under § 135.293(a). This means that even though a pilot may have 

passed the instrument proficiency check to determine his or her 

qualifications to fiy under instrument fiight rules, he or she must still 

pass the annual knowledge test prescribed by § 135.293(a). 

Fifth. Section 13 5.293(c)'s provision for substitution of the 

instrument proficiency test under §135.297 for the competency check 

under §135.293(b) contains a major ambiguity. The ambiguity 

derives from the fact that while the competency check must be passed 

on an annual basis, successftil completion of the instrument 

proficiency check is good for only six months. The parties are at 

loggerheads over the question whether a pilot who has satisfied the 

requirement for an annual competency check under § 135.293(b) by 

substituting his or her successftil completion of the §135.297 

instrument proficiency check must thereafter pass another competency 

check six months later, when the currency of the pilot's instrument 
proficiency check expires.' This is not an issue that must be decided 

in the current proceeding. However, it arises with respect to an allied 

case that was decided on cross-motions for summary judgment and is, 

at this writing, pending on appeal before the Administrator. 

Both parties agree that Mr. Darby had successfully passed the 

tests required by §§ 135.293(a) and 135.293(b) on September 14, 2006 

and September 12, 2006. The tests were given for the purpose of 

qualifying Mr. Darby to fly his employer's helicopter (the September 

14, 2006 check) and its two turbo-jet powered aircraft (the September 

12. 2006 check).^ This established September as Mr. Darby's "base" 

month for purposes of his annual tests. 

Under §135.301 of the FAR, a crewmember who is required to 

take an annual test or flight check is allowed to do so during the 

calendar months before, during and after his or her "base" month. 

This created a three-calendar-month window for Mr. Darby to satisfy 

his annual testing and flight check requirements. If he passed the 

knowledge and proficiency tests at any times between August 1, 2007 

and October 31, 2007, he was considered to have satisfactorily 

completed both tests. This "grace month" provision meant that Mr. 

Darby was due for another annual test of his knowledge (and 

competency) on or before October 31, 2007. If a pilot passes one or 

both of the tests during the "grace" month, his compliance with the 

regulation reverts back to his "base" month. Thus, if Mr. Darby had 

passed the knowledge test in October 2007, he would be deemed to 

have complied with the testing requirement as of September 30, 2007. 

If, on the other hand, a pilot passes the test during the month before 

the base month (e.g., during August 2007, in Mr. Darby's case, his 

employer may elect to adjust his base month to the earlier month in 

which the tests were completed or to leave the base month where it 

was before the test or tests were completed. But if a pilot fails to 

comply with the testing requirement during the year plus the grace 

period, his non-compliance with § 135.293(a) begins on the last day of 

his or her base month. In Mr. Darby's case, according to the FAA, he 

' The FAA's position at the hearing was that the substitution is good for only six months, after which the 

pilot must either pass a § 135.293(b) proficiency test or another IFR competency check. 

See Darby Aviation et al. Docket Nos. CP08SO0026 etal., "Administrative Law Judge's Order Granting 

Motion for Summary Disposition and Severing Proceeding," served February 6,2009. 

^ The tests were administered by two check pilots employed by the Respondent. Shortly afterward, the 

FAA revoked the authority of these men to serve as check pilots. 
was in violation of the FAR with respect to any Part 135 flight he 

made as a pilot on or after October 1, 2007 and before he successfully 

completed the test of his knowledge as required by § 135.293(a). 

At the hearing, the FAA presented irrefragable evidence, in the" 

form of Respondent's Flight Operations Records, showing that Mr. 

Darby had been the pilot of flights under Part 135 during the period 

after the end of September 2007.^* The records are Exhibits C-l, C-2, 

C-3 and C-4; twenty Part 135 flights are documented. It appears that 

Mr. Darby was the pilot in command on all but one of these flights. 

Aviation Safety Inspector James Fox,^ who sponsored these 

documents, testified that there might be as many as 29 or 30 illegal 

flights. Tr. 117, 197. His testimony is confusing on this point, 

however, because it appears that he was testifying about alleged 

violations of both subsection (a) and (b) of §135.293, while the 

charges leveled against the Respondent in the FAA's complaint 

involved only alleged violations of subsection (a) of that section of the 

FAR. 

The FAA also placed into evidence the Table of Sanctions 

found in FAA Order No. 2150.3B (Ex. C-l 1). Its witness Fox, the 

Inspector who investigated the Respondent's alleged non-compliance 

with the FAR, testified that the offense with which the Respondent 

was charged, "Use of unqualified crewmember," was assigned a 

"Maximum" civil penalty in Figure B-l-a, found on page B-15 of the 

Order and that, in turn, generated a penalty range of $850-$ 1,100 per 

violation in accordance with the instructions pertaining to a "Group I" 

small business concern found on page B-3 of the same Order. The 

Respondent did not sponsor any evidence that would tend to 

contradict Mr. Fox's analysis on this point. 

As would normally be the case with any Chief Pilot who is 

rated in three different aircraft, Mr. Darby went through a number of 

training and testing programs at or about the time his § 135.293(a) 

knowledge test took place. Many of these programs are documented 

in Form 8410's found in his training file or otherwise elucidated in 

"SeeTr. 110-12. 

' Inspector Fox was, at the time of the hearing, employed at the FAA's Alabama-Northwest Florida Flight 

Standards District Office and was the Principal Operations Inspector in charge of the Respondent's 

compliance. 
preparation for the hearing in this case. In January 2007, Mr. Darby 

attended simulator training conducted at CAE SimuFlite and was 

certified to have successfiilly completed training under §135.297 of 

the FAR, i^ , his instrument proficiency test. See Ex. C-6. In her 

opening statement at the hearing, counsel for the Respondent 

strenuously asserted that the provisions of § 135.293(c) allow this 

achievement to be substituted for the § 135.293(a) test that the FAA 

now says was overdue when Mr. Darby piloted the flights in question. 

On this issue, the Respondent is clearly wrong. 

As we have noted above, the two test requirements are quite 

distinct and separate. As the Administrator said when he adopted the 

rules that we now see in §§135.293(a) and 135.293(c), "the subjects of 

these tests are not identical and the two oral or written tests are not 

given for the same purpose." 

The test under § 135.293(a) covers subjects which are generally 

applicable, such as ground training requirements. The test 

under § 135.297(c) is an equipment test related to operational 

procedures in which the pilot must demonstrate competency 

before being used under IFR. 

43 Fed. Reg. 36774 (1978). 

It is true, as the Respondent points out, that in an allied case 

involving a civil penalty claim against Darby Aviation in Docket No. 

CP08SO0025,1 granted Respondent's motion for summary 

disposition and held, in an order issued February 26, 2009, that 

successful completion of the IFR proficiency check could be 

substituted for the competency check mandated by § 135.293(b) of the 

FAR.^ But the February 26, 2009 order did not rule that the IFR 

competency check could be substituted for the knowledge test 

required by § 135.293(a). As indicated above, the language of the 

regulation, as well as the preamble issued when the regulation was 

* Darby Aviation. Docket Nos. CP08SO0026 et al. "Administrative Law Judge's Order Granting Motion 

for Summary Disposition and Severing Proceeding." I also ruled, at least implicitly, that the substitution 

allowed under § 135.293(c) would last for the full year during which a competency check is required, 

notwithstanding the fact that the instrument proficiency test must be taken and passed at six-month 

intervals. I adhere to that view now (notwithstanding the Complainant's contrary position), on the theory 

that a "substitution" is in lieu of the requirement for which it is substituted. 
adopted, make it abundantly clear that the requirement for a test of a 

pilot's knowledge is distinct from the requirement of a check of the 

pilot's proficiency. The regulatory provision in § 135.293(c) refers to 

substitution of the IFR proficiency test for only the competency check 

found in § 135.293(b). It does not permit a pilot who, like Mr. Darby;* 

had successfully completed the competency check to omit the 

knowledge test for any period of time. That was my ruling at an 

earlier stage of this proceeding, when I denied another dispositive 

motion by the Respondent.^ I adhere to that ruling now. 

At the hearing, the Respondent contended that Mr. Darby 

satisfied the requirement for an annual test of a pilot's knowledge 

when, in January 2007, he attended a SimuFlite simulator training 

program. However, the record of simulator checks documenting Mr. 

Darby's training and testing at SimuFlite does not indicate that he was 

tested on all of the subjects described in § 135.293(a) while he 

attended that program. The form has spaces for the testing 

organization to record completion of the § 135.293(a) test, either on all 

subjects or on the two subjects that are specific to a particular type of 

aircraft. Neither of those boxes is checked on Exhibit C-6. Hence, I 

must conclude that the requisite tests were not administered while Mr. 

Darby was at SimuFlite. 

The next occasion to which we come is a check recorded on 

Exhibit C-9. This Form 8410-3 documents a check that was 

undertaken in a helicopter (a Bell 206). The check pilot's name was 

Richard E. Parker who, so far as the record shows, was an authorized 

check pilot. See Ex. C-l for the designation of Mr. Parker as a check 

airman.^ The form states that Mr. Darby "Demonstrated Current 

Knowledge" as required under FAR 135.293(a) as of April 26, 2007. 

The form also indicates that another test of Mr. Darby's knowledge 

would be due as of April 30, 2008. It clearly refers to a test under 

§ 135.293(a). There is also in the record a statement by Mr. Parker 

saying that he gave Mr. Darby a test "conducted in accordance with 

' Administrative Law Judge's Order Ruling on Cross-Motions for Summary Disposition, issued January 7, 

2010. 

* On July 7, 2007, the FAA rescinded the authority of three of Respondent's pilots, Messrs. Darby, John 

Morrison and Dane Rheinschmidt, to act as check airmen. See Ex. R-9. Although the FAA's letter 

indicates that the reason for the rescission was that the Respondent did not have enough checking activity 

to warrant a check airman, nothing was said about the status of Mr. Parker who, presumably, remained 

authorized to continue as a check pilot for the helicopter in Respondent's fleet. 
FAR 135.293(a) 1 through 8 and FAR 135.299(a) in a VFR Bell 206 

helicopter, N28ED." Ex. R-13. 

It is clear, however, that the April 26, 2007 testing could not 

have covered all of the subjects listed in § 135.293(a). This is the cas& 

because two of those subjects, found in subparagraphs (a)(2) and 

(a)(3), require the person being tested to expound correctly upon 

certain subjects pertaining to "each type of aircraft to be flown by the 

pilot." In order to examine Mr. Darby on those subjects, the person 

administering the test - Mr. Parker in this case - would have to have 

been rated in the type of aircraft Mr. Darby was to have flown in his 

capacity as Chief Pilot for the Respondent. While it is clear that Mr. 

Parker was qualified to test Mr. Darby on his knowledge of the 

subject-matter of subsection (a)(2)^ and subsection (a)(3)'° with 

respect to the Bell 206 helicopter, there is no evidence that Mr. Parker 

was authorized to administer a test on these subjects with respect to 

either of the two turbo-jet aircraft Mr. Darby was to fly. And it is Mr. 

Darby's operations in the turbo-jet aircraft that are the gravamen of 

the FAA's charges in this case. 

This brings us to the third of the checks administered to Mr. 

Darby after the date when, according to the FAA, he successfully 

completed his most recent test under § 135.293(a). 

This was a June 25, 2007 check ride in the Learjet 25 

administered by John Morrison, one of the Respondent's erstwhile 

check pilots. The Form 8410-3 documenting this testing is in 

evidence as Exhibit C-8. According to Mr. Morrison's testimony as a 

witness for the Respondent, he tested Mr. Darby on the subjects 

prescribed by §135.297(a) during this check ride. Tr. 501. And, 

indeed, a written test said to have been contemporarily completed by 

Mr. Darby with 100% accuracy was offered and received in evidence 

as Exhibit R-3. As the Complainant points out, however, the 

purported written test is dated April 2, 2007, more than two months 

prior to the date on the Form 8410-3. More to the point, however, is 

' Le., "the aircraft powerplant, major components and systems, major appliances, performance and 

operating limitations, standard and emergency operating procedures, and the contents of the approved 

Aircraft Flight Manual or equivalent...". 

'° Le,, "the method of determining compliance with weight and balance limitations for takeoff, landing and 

en route operations." 

10 
the fact that the box labeled "Type of Check" on the form is marked to 

indicate that Mr. Morrison believed that he was testing Mr. Darby 

only with respect to the subjects covered by § 135.299 of the FAR. i.e., 

to determine whether Mr. Darby was capable of flying one of the 

routes he would fly in the Learjet. The box labeled "FAR 135.293" is 

not checked, as it would be if Mr. Morrison believed he was 

administering the requisite test of Mr. Darby's knowledge during the 

check flight. Hence, I must conclude that this piece of evidence is 

insufficient to prove that Mr. Darby took and passed the § 135.293(a) 

test during the April 25, 2007 flight check. 

The next candidate for consideration is a training-and-testing 

session Mr. Darby attended in August of 2007 at a school operated by 

a firm called SimCom in Orlando, Florida. The primary purpose of 

the school was to allow pilots who flew corporate-type jet aircraft to 

be checked out on SimCom's flight simulator.'' Mr. Darby attended 

the July-August 2007 session for checks on his proficiency to fly the 

Learjet operated by the Respondent. Before the program started, 

SimCom insisted on obtaining the approval of the Respondent's FAA 

Principal Operations Inspector for the attendance of its pilots. A 

form, entitled "Record of Approved Instructors/TCE's/Check Pilots," 

was sent to FAA Inspector James Fox (Respondent's Primary 

Operations Inspector), who signed it on July 31, 2007 and returned it 

to the school. See Ex. R-15, p. 2. The form Usted the names of nine 

instructor-pilots, six of whom were indicated as check pilots. At the 

conclusion of the training-and-testing session, one of the SimCom 

check pilots (Richard Romero by name) certified that he had tested 

Mr. Darby on the subjects specified in §135.293(a)(2) and (a)(3) of 

the FAR, as well as those called out in §135.297. See Ex. C-R-18. 

The Respondent says that if we put the SimCom training 

together with the testing performed previously, when Mr. Parker 

checked Mr. Darby out in the helicopter, we will find that Mr. Darby 

had fully satisfied the requirements of § 135.293(a). The FAA raises 

several objections to this argument. The Complainant insists that the 

" Note that §135.293(f) of the FAR provides that part of the required competency check may be given in 

an aircraft simulator "if approved by the Administrator." I do not interpret this language as prohibiting the 

administration of the knowledge test required under § 135.293(a) during a pilot's simulator training, 

providing that the person administering the test is a representative of the Administrator or an authorized 

check pilot. 

11 
SimCom training did not qualify under § 135.293(a) because Richard 

Romero, the SimCom check pilot was not an "authorized check pilot" 

within the meaning of that provision of the FAR. I do not find this 

argument persuasive. 

Although Inspector Fox, during his testimony, sedulously 

insisted that his approval of the SimCom training session did not 

include approval of Romero or his colleagues as check pilots, it is 

difficult to draw any other conclusion upon reading the form (Ex. R18) that he signed. It appears on its face to approve Romero and some 

other SimCom employees as authorized to administer the tests 

prescribed by § 135.293 of the FAR. Mr. Fox's testimony was that his 

signature on the form was intended only to signify his approval for 

use of the SimCom facilities but did not approve the check pilots 

listed on that same form.'^ However, it is difficult to think of any 

reason why each of the SimCom check pilots would have to be listed 

individually unless it was to allow Inspector Fox to review the 

abilities of each one of them. Inspector Fox said that if he had really 

done so, he would have signed the space provided beside each name;'"* 

it seems to me, however, that that type of designation would be used 

only in a case where the POI had determined to approve some, but not 

all, of the check pilots on the list. Certainly, SimCom, the party that 

devised the form, thought that Inspector Fox's intent was to approve 

as check airmen all of the instructors whose names appeared on the 

form. See Ex. R-14. So did Darby Aviation's Director of Operations, 

John Morrison, who had sent the form to Inspector Fox.'^ At the very 

least, the form is ambiguous. And the Complainant in this quasicriminal proceeding must bear the onus of the ambiguity. I find, 

therefore, that Mr. Romero had been duly designated as a check pilot, 

qualified to administer to Mr. Darby the test of his knowledge in 

accordance with §135.293(a) of the FAR. 

The FAA also claims that an instructor, such as Mr. Parker, 

who is approved only for the purpose of checking a pilot's skills at the 

control of a helicopter is somehow unqualified to test the same pilot's 

knowledge under § 135.293(a). There is, however, no basis for this 

'^ E.g. Tr. 90-94; Tr. 188-90. 

" Id. at 90,96-98. 

"'Seee^,Tr. 269,283. 

" See Mr. Morrison's testimony at Tr. 515. 

12 
claim in the language of the regulation. It is clear, moreover, that 

paragraphs (a)(1) and (a)(4)-(8) of the prescribed knowledge test need 

not be given repeatedly each time the pilot qualifies in a different type 

of aircraft. That is the case because the phrase "[fjor each type of 

aircraft to be flown by the pilot" appears only in paragraphs (a)(2) and 

(a)(3) of § 135.293. Once a year is enough. For this reason, I find and 

determine that Mr. Darby was adequately tested on his knowledge of 

the subjects specified in paragraphs (a)(1) and (a)(4)-(8) during his 

check ride with Mr. Parker on April 6, 2007. 

I also find that at various times during the period from the end 

of September 2006 to August of 2007, Mr. Darby did in fact pass the 

testing required by § 135.293(a). The subjects specified in 

§ 135.293(a)(1) and (a)(4)-(8) appear to have been tested in April 

2007, while the ones described in § 135.293(a)(2) and (a)(3) were 

tested when Mr. Darby attended the SimCom school at the end of July 

and the beginning of August of 2007. These testing requirements 

appear to have been successfully completed prior to the dates when 

Mr. Darby served as a pilot of the flights with which the Respondent 

was charged. 

So we now come to the question that forms the core of this 

case: Can a pilot, consistent with the FAR, complete some 

§ 135.293(a) questions at one sitting and, at a later date several months 

off, pass the remaining questions on the subsection (a) test, thereby 

qualifying with respect to the "knowledge" requirement of 

§135.293(a)? 

The FAA argues strenuously that a pilot cannot "piece 

together" two or more testing sessions to achieve compliance with the 

knowledge requirement. It appears to be the Complainant's theory 

that a pilot must qualify by passing a written or oral test in the context 

of a single "check ride." See Inspector Fox's testimony at Tr. 173-78. 

The problem with this theory is that, as the Inspector reluctantly 

conceded, there is nothing in the text of the regulations that lends 

credence to it. See Id. at 177. On its face, § 135.293(a) seems to allow 

a pilot to pass the several required tests of his or her knowledge at any 

time they are administered, so long as they are administered, and 

passed, before the end of the 12* calendar month prior to the date the 

pilot is used to fly an operation that falls under Part 135 of the FAR. 

13 
The only restriction on the place and time of the testing that can be 

found in the regulation is set forth in paragraphs (2) and (3) of 

§ 135.293(a). Those two paragraphs require the person being tested to 

exhibit his or her knowledge "[f|or each type of aircraft to be flown 

by the pilot." Presumably, the quoted language requires the person 

being tested to demonstrate the requisite knowledge in the context of a 

flight of the aircraft he or she will operate or, as was the case with Mr. 

Darby, in a flight simulator approved by the Administrator's 

representative. Compare 49 C.F.R. § 135.293(f). The remaining 

subjects, however, can be tested on the ground, in a classroom or in 

any other place the prospective pilot and the check pilot or FAA 

representative may find themselves. The absence of the phrase "[fjor 

each type of aircraft to be flown by the pilot" in subparagraphs (1) and 

(4)-(8) of §135.293(a) seems to make this clear. There is simply no 

basis in the language of the regulation for finding that the testing for 

all subjects must take place during a single check flight, much less the 

same check flight in which the pilot is given the competency test 

required under § 135.293(b). 

Section 135.293(a) of the FAR contains no time limit, other 

than the requirement that the test be fully and satisfactorily completed 

within a year after the candidate has successfiilly completed his or her 

previous test. (Plus, of course, the "grace" month.) There is in the text 

of the regulation itself virtually no basis for holding that the test must 

be taken all at one time or within any specific period of time other 

than the one-year period. It may be possible to derive such a rule 

from § 135.301(a) of the FAR, which provides that a crew member 

who is required to take a test may complete it in the calendar month 

before or the calendar month after the completion is required. But this 

language speaks only to completion of the test. It is designed to 

provide a "grace" period, as its title clearly says and it does not by its 

terms prohibit portions of the test from being completed outside of the 

three-month period it describes. FAA Order No. 8400.10, which was 

in effect during the relevant period, also refers, albeit obliquely, to a 

time limit of 90 days for completion of the knowledge test.^^ In 

connection with the recurrent testing of pilots, the Order (which is in 

evidence as Ex. R-16) deals with the requirement for recurrent 

training and testing of crewmembers who, like Mr. Darby, had 

'* Order No. 8400.10 was repealed on September 13, 2007. 

14 
previously been training and qualified for their jobs. Paragraph 603 

speaks of an "eligibility period" of three months, consisting of the 

month before the pilot's "base" month, the "base" month and the 

month thereafter (i.e., the "grace" month). The Order also seems to 

give operators an option either to adopt a "modular" approach to 

periodic training-and-checking of their airman or simply to allow the 

events, including testing, to fall wherever they may. It seems clear 

that the Respondent did not make a "modular" election; if it had, this 

case would never have arisen. 

There are a number of intractable problems with reliance on 

Order No. 8400.10 to support its thesis that Mr. Darby's several 

§ 135.293(a) tests did not fall within the 90-day window. For one 

thing, the Order did not at any point explicitly require the test to be 

completed within a period of 90 days. For another, the Order was, as 

Inspector Fox was obliged to concede, simply a directive issued to 

employees of the FAA who were authorized to administer the tests 

required under §§135.293, 135.297 and 135.293.299. By its terms, 

the Order did not apply to other check pilots who were authorized to 

administer the knowledge and proficiency tests. See Ex. 16 at ^ 281. 

It is one thing for the Administrator to instruct FAA personnel in the 

methods they will use to conduct tests under § 135.293(a) of the FAR. 

It is quite another to require operators, at peril of substantial civil 

penalties, to implement a methodology that has never been adopted 

with the protections of notice-and-comment rule-making under the 

Administrative Procedure Act.'^ And, finally, we are met once again 

with the most serious impediment to adoption of the FAA's theory of 

the case: the complete absence of any mandatory time-limit, other 

than the requirement for an annual test, in the language of §135.293(a) 

of the FAR. 

" The question of what a "modular" training regimen consists of is now pending before the Administrator 

on appeal from my initial decision in Ventura Air Services. Inc.. Docket No. CPEA0008 (September 24, 

2009). 

" See Tr. 390. 

" The FAA's hypothesis that the § 135.293(a) testing requirements must all be completed at once (or within 

a 90-day window) falls afoul of the APA's requirement for publication of such requirements in the Federal 

Register. See 5 U.S.C. §552(a)(l)(D). The statute goes on to state that "a person fe.g.. Darby Aviation] 

may not in any maimer be require to resort to, or be adversely affected by, a matter required to be published 

in the Federal Register and not so published." 

15 
The FAA has argued that, as an administrative law judge, I 

should "give deference" to its view that the § 135.293(a) test must be 

given with the § 135.293(b) proficiency test and cannot be given 

separately or at various times and places. In support of this argument, 

it cites language from Garvey v. NTSB and Merrell, 190 F.3d 571, '" • 

580 (D.C. Cir. 1999) to the effect that in a split-enforcement setting, 

the NTSB was required to defer to the FAA's interpretation of its own 

safety regulations, i^ , the FAR. The issue in the instant case, 

however, is not whether I am required to give deference to the 

agency's interpretation of its regulations. Ofcourselam. The issue, 

rather, is what the FAA's interpretation of its pilot-testing requirement 

shall be in the first instance. What the Complainant cites as "the 

FAA's interpretation" is nothing more than the construction given the 

regulations by the agency's enforcement arm in this very case, a case 

which, so far as the record shows, is one of first impression. To hold 

that the interpretation of the enforcement staff should carry the day 

because the enforcement staff now says so is an exercise of circular 

reasoning. The enforcement staffs view is unsupported by any 

precedent it has cited and, more importantly, is without any basis in 

the language of the regulation itself 

In my judgment, this impediment cannot be overcome - though 

the case is a close one. Granted, there are serious adminisfrative 

problems that arise if we agree with the Respondent's assertion that 

two testing sessions, some six months apart, satisfied Mr. Darby's 

obligation to pass a test of his knowledge under § 135.293(a). As 

Inspector Fox pointed out, permitting a Part 135 operator to give its 

pilots tests outside the normal context of their "base" months makes it 

difficult for the FAA's Operations Inspectors to monitor compliance 

with the testing requirements of the FAR. Nevertheless, the fact 

remains, and it will not go away, that nothing in the FAR expressly or 

by inference prohibits a carrier from administering the requisite tests 

at intervals other than every twelve months. Nor is there anything in 

the FAR which requires the test of a pilot's knowledge as specified in 

§ 135.293(a) to be completed in one sitting or one session. Indeed, a 

legal opinion issued by the FAA's Office of Chief Counsel and found 

in the record as Exhibit R-17, seems to indicate that the agency is 

comfortable with the administration of the tests before they are 

^° See Tr. 467-68. 

16 
previously been training and qualified for their jobs. Paragraph 603 

speaks of an "eligibility period" of three months, consisting of the 

month before the pilot's "base" month, the "base" month and the 

month thereafter (i.e., the "grace" month). The Order also seems to 

give operators an option either to adopt a "modular" approach to 

periodic training-and-checking of their airman or simply to allow the 

events, including testing, to fall wherever they may. It seems clear 

that the Respondent did not make a "modular" election; if it had, this 

case would never have arisen. 

There are a number of intractable problems with reliance on 

Order No. 8400.10 to support its thesis that Mr. Darby's several 

§ 135.293(a) tests did not fall within the 90-day window. For one 

thing, the Order did not at any point explicitly require the test to be 

completed within a period of 90 days. For another, the Order was, as 

Inspector Fox was obliged to concede, simply a directive issued to 

employees of the FAA who were authorized to administer the tests 

required under §§135.293, 135.297 and 135.293.299. By its terms, 

the Order did not apply to other check pilots who were authorized to 

administer the knowledge and proficiency tests. See Ex. 16 at ^ 281. 

It is one thing for the Administrator to instruct FAA personnel in the 

methods they will use to conduct tests under §135.293(a) of the FAR. 

It is quite another to require operators, at peril of substantial civil 

penalties, to implement a methodology that has never been adopted 

with the protections of notice-and-comment rule-making under the 

Administrative Procedure Act.'^ And, finally, we are met once again 

with the most serious impediment to adoption of the FAA's theory of 

the case: the complete absence of any mandatory time-limit, other 

than the requirement for an annual test, in the language of § 135.293(a) 

of the FAR. 

'^ The question of what a "modular" training regimen consists of is now pending before the Administrator 

on appeal from my initial decision in Ventura Air Services. Inc.. Docket No. CPEA0008 (September 24, 

2009). 

'^ See Tr. 390. 

" The FAA's hypothesis that the § 135.293(a) testing requirements must all be completed at once (or within 

a 90-day window) falls afoul of the APA's requirement for publication of such requirements in the Federal 

Register. See 5 U.S.C. §552(a)(l)(D). The statute goes on to state that "a person [e.g.. Darby Aviation] 

may not in any manner be require to resort to, or be adversely affected by, a matter required to be published 

in tiie Federal Register and not so published." 

15 
technically due at or near the expiration of the one-year period. That 

is what appears to have happened here in the case of Mr. Darby. 

For the foregoing reasons, I find and conclude that Elton H. 

Darby, a pilot employed by the Respondent as the pilot-in-command " 

of operations under Part 135 of the FAR, was not, as charged in the 

complaint, in violation of §135.293(a) of the regulations when he 

served in that capacity during the flights at issue in this case. 

In consideration of the foregoing, and subject to review by the 

Administrator on appeal or on his own motion as provided in §13.233 

of the Rules of Practice and Procedure, 14 C.F.R. §13.233, that the 

charges against the Respondent Darby Aviation, Inc. in the complaint 

flled by the Complainant in this docket must be, and they hereby are, 

dismissed with prejudice. 

IT IS SO ORDERED. 

Isaac D. Benkin 

Administrative Law Judge 

[Note: This decision may be appealed to the Administrator of the FAA. 

The Notice of Appeal must be filed not later than 10 days after service 

of this decision (plus five additional days, if this decision is served by 

mail). 14 C.F.R. §§13.233(a), 13.211(e). The appeal must be perfected 

with a written brief or memorandum not later than 50 days after service 

of this decision (plus five additional days, if this decision is served by 

mail). 14 C.F.R. §§13.233(c), 13.211(e). The Notice of Appeal and brief 

or memorandum must be either (a) mailed to the Federal Aviation 

Administration, 800 Independence Avenue, S.W., Washington, DC 

20591; Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright 

Building—Suite 2W1000, or (b) delivered personally or via expedited 

courier service to the Federal Aviation Administration, 600 

Independence Ave., S.W., Wilbur Wright Building—Suite 2W1000, 

Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430. 14 

C.F.R. §§13.233(a), 13.210(a)(2), (1). A copy of the Notice of Appeal and 

17 
brief or memorandum should also be sent to counsel for the FAA in this 

proceeding. 14 C.F.R. §13.233(a).] 

18 
FAA Docket No. CP08SO0026 

(Civil Penalty Action) 

UPDATED 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 2W1000' 

ONE COPY 

Deanna L. Weidner, Respondent's Counsel 

Anderson & Associates, LLC 

505 20th Street North 

Financial Center, Suite 1450 

Birmingham, AL 35203 

TEL: 205-324-1230 

FAX: 205-322-3890 

E-MAIL: dlweidner@davidbandersonlaw.com 

Raymond Veatch, Complainant's Counsel 

Office of the Regional Counsel 

Federal Aviation Administration 

800 Independence Ave. S.W. 

Washington DC 20591 

TEL: 202-267-9676 

E-MAIL: Raymond.Veatch@faa.gov 

The Honorable Isaac D. Benkin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

TEL: Attorney 202-366-2139 

Legal Assistant 202-366-2132 

FAX: 202-366-7536 

E-MAIL: David.Benkin@dot.gov 

' Service was by U.S. Mail. For service in person or by expedited courier, use the follovi^ing address: Federal 

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

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