01/08/2015 01:04PM 8085221551 CHRIS FERRARA LAW

FEDERAL AVIATION ADMINISTRATION



### v. U.S. DEPARTMENT Of TRANSPORTATION FEDERAL AVIATION ADMINISTBATION

Complainant, FAA Case No. 2012WP130065 FDMS No. FAA 3013-1080 SCHUMAN AVIATION COMPANY, LTD ) ) ) ) ) ) ) ) ) ) ) Respondent.

RESPONDENT'S REPLY BRIEF Pursuant to 14 C.F.R. & 13233(e), Respondent files this briefin support ofits replyto the appeal oftbe initial decision iss11ed byAdministrative Lawjudge Richard C. GoodWin (ALJ) onAugust 31, 2015 in the above-captioned matter. I. STATEMENT OF THE CASE PAGE 01/08

Respondent substantially agrees with Complainant's version of the case, but would include that the ALJ ruled specifically that, ''The evidence and testimony did not

**~up**port the penalty requested. While the FAA was entitled to substantial deference in establishing the appropriate ciVil penalty we cannot ignore our role to evaluate the testimony ang evidence." (emphasis added), the AL), in his analysis stated, "taking the totalitv ofthe facts and circumstan<;es into accour1t we conclude a fine of $5000 for each of the two (2) violations is appropriate, for a total fine of $10,000.01/08/2015 01:04PM 8085221551 CHRIS FERRARA LAW PAGE 02/08

Further, Respondent's counsel, shortly after he received Complainant's Appeal Brief, contacted the attorney for Counsel for Enforcement With an offer to settle this case. The attorney, although she said she would talk with her superiors, never responded to Respondent's counsel, who had in the initial conversation, requested a counter offer or at least further discussion of the possibility of settlement. Respondent made several unanswered telephone calls to the Complainant's attorney in an attemptto settle this matter and finally on November 30, 2015 spoke to attorney for the Complainant, who related, thatthe present offer on the table was unacceptable. Respondent's counsel requested a counter offer. Complainant's counsel related that she would make one. To this date, counsel for the Respondent has heard nothing from the office of Chief Counsel. This apparent refusal to negotiate or participate in i1JlY meaningful discussion regarding the resolution of this matter, is not in the interests ofjustice, and expediency, nor is it in the interest of the FAA mandate from the U.S Congress and the Pilot's Bill of Rights, signed by the President ofthe U.S. into law on August 3, 2012. 

### 1!. STATEMENT OF FACTS Respondent again substantially agrees with Complainant's version ofthe facts, with one glaring exception: the ALJ did not "summarily" state thatthe "'totalityofthe facts and circumstances warranted a $10000 civil penalty'", he made an informed decision supported bya careful a,nalysis ofthe facts & circumstances. Naturally, Office ofChiefCounsel tota,lly ignores section, XIV,01/08/2015 01:04PM 8085221551 CHRIS FERRARA LAW

XlV A and B ofthe initial decision ofAdministrative LawJudge, because it did not like the ALJ's decision. III. STATEMENT OF THE ISSUES PAGE 03/08

There are no issues on appeal, according to case law cited byRespondent below. TheALJ made his decision based on the totality ofthe facts and circumstances thatheadduced from hearingthe witnesses and seeingthe evidence on December 4, 2014. Every party agrees thatthe FAA has the burden ofjustizying the amount ofcivil penalty sought. In the matter of: Phyllis Iones Luxemburg. 1994 WL899676 (1994) citing. In the matter ofNorthwestAirlines,FAA Order No. 90-37 at 7 (November 7, 1990). lt did not fulfill its burden in this case and the ALJ said why. The Complainant seeksto have the case retried on appeal bythe very same agency that broughtthe original charges. 

### JV, STANDARD OF REVIEW The standard ofreview cited bythe ComplaJnant, is simply not accurate and is rendered moot by the Pilot's Bill ofRights, "The Pilot's Bill ofRights strikes from 49 USC s. 44709(e) language requiring the Board defer to all validly adopted interpretation oflaws and regulations theAdministrator carried outand ofwritten agency policy guidance available to the public related to sanction, unless the Board found the interptetation arbitrary, capricious or other wise not according to law". Administratorvs. Jason L. Tones: NTSB Order No. EA5647. The opinion ofthe ALJ in theJones case was cited; "While I am no longer bound to give deference to the FAA by statute, thatagency is entitled tojudicial deference due to all other federal administrative agencies under the Supreme Court decision in Martin vs.01/08/2015 01:04PM 8085221551 CHRIS FERRARA LAW

OccupatiQnal Safety and Health ReviglW Commission. which can be found at 499U.S.144, 11S.CT.1171 (1991). In applying the principle of]udicial deference to the interpretation ofJaws, regulations and policies thatthe acting administration carries out, I must analyze and weigh the facts and circumstances in each case to determine ifthe sanction selecteg by the acting adminjstrgtor is appropriate". (emphasis added). This is exactly whatALJ Goodwin did. V.ARGUMENT PAGE 04/08

Complainant complains thatthe sanction, $10,000 was a result ofthe AL) ruling thatthe Complainantfailed to meet its burden on the grounds thatthe Complainant failed to: (1) prove to theALJ how it used agency sanction guidance to arrive at the proposed civil penalty; (2) "prove the existence ofaggravation factors and failed to show how it used aggravation factors or mitigation factors to adjust the suggested sanction"; [3) present evidence that itconsidered the nature, circumstances, and gravity ofRespondent's violation; and (4) presentevidence as to "whether Regent's (sic) ability to paywas taken into account", While this is correct, it does notmatter. The ALJ made the correct decision based on current administrative la,w and practice, Administrator vs. Jason L. Jones. 

### lq. The ALJ based his decision on the premise thatthe ''civil penaltymustreflect the totality ofthe

**~;ircumstances** surrounding: the violations" (emphasis added) citing Eastern Air Center. Inc. FAA Order No. 2008-3 (lanuary 28, 2008). Complainant goes into a spasm ofarguments in its briefthatthe conclusions reached by the

### AI.J were deficient or erroneous, but it ignores one salientfact that both sides agreed to: there were no safety issues involved in the violations. As a01/08/2015 01:04PM 8085221551 CHRIS FERRARA LAW PAGE 05/08

matter offact, Complainantnever pointed to aggravating facts only those in mitigation statingthat, "there were a number ofaggravating factors which could have been used to increase the amount ofthe sanction Complainant's dosing argument at p 10, but didn't specifically do so. The ALJ points outin his decision thatthe Complainantin its closing argument and rebuttal, did not point out a.ny aggravatingfactors, and further pointed outthat, "the FAA must also prove the existence ofaggravating factors, and must showhowitused aggravating or mitigatingfactors to adjustthe suggested sanction evidence ofswiftcomprehensive corrective action mustbe considered as a mitigation factor. Significantweighthas been given to Respondent's efforts to ensure thata violation will 11ot reoccur." Decision at 

### 15. Ironically, the Complainantpointed out the mitigatingfactors, agreeing with the ALJ, butnever explained whythe initial sanctions used were appropriate. Complainant relied solely on the fact that theywere contained in FAA Order 2150.3B. Under caselaw, cited above, theALJ may require more andjor ignore this order. Further, the complainant complains that: ALJ's opinion provides no rationale or explanation asto howhe determined the penalty amounts were appropriate for Respondent's violations. Rather, his opinion states simplythathe took" the totality ofthe facts and circumstances into account", and cites the rules and practice governing civil penaltyactions. According to theAdministratorv. jason L. Jones. ID, he does nothave to. This required adherence has been superceded by law. the Pilot's Bill ofRights. Law trumps FAA orders,01/08/2015 01:04PM 8085221551 CHRIS FERRARA LAW PAGE 05/08

VI. CONCLUSION TheALl did not err. The ALJ's decision was way ahead ofthe FAA mindset, in his interpretation ofthe mandates contained in the Pilot's Bill ofRights. The Complainant states in its Conclusion thatthe penalty amount is correctbecause it "derived its proposed $27,800 civil penaltyusing FAA Order 2150.3b and its incorporated Sanction Gu.idance Tables, and, as such, the penaltyreflects the pQlicy ofthe ggency...." The Pilot's 

### Bill ofRights is )illy, superceding all orders and policies, "strikes from 49 U.S.C. 

### s. 44709 (e) language requiringthe Board defer to all validly adopted interpretC\tions oflaws and regulations the administrator carried out and ofwritten ageucy policy guidance available to the public related

**~o** sanction
...." (emphasis

**<~dded)** Administrator vs. Jason L. jones, !d. Therefore, there is no

**justific<~tion** for increasing the amount ofthe ALJ's adjudication.

Dated: 

### January 8, 2016 **~espectfully** submitted,

Christopher D. Ferrara Attorney for the Respondent01/08/2015 01:04PM 8085221551 CHRIS FERRARA LAl''



### CERTIFICATE OF

**SERVJ~E** l hereby certifY thaton this date I have sentthe foregoing Respondent's Reply Briefbyfacsimile, email, and by U.S. mail, postage prepaid, to:
Attn: Hearing Docket Clerk, AGC-430 WilburWright Building

- Suite 2W1000 Federal Aviation Administration
·600 Independence Ave., SW Washington, 

### DC 20591
Casey E. Gardner, Attorney Enforcement Division, AGC-300 Federal Aviation Administration Office ofthe ChiefCounsel 800 Independence Ave., S.W. Washington, D.C. 20591 Telephone: (202) 267-5964 Facsimile: (202) 267-5106



# /2?~­

**~ra** Attorney for the Respondent Dated: January8, 2016 PAGE 07/0801/08/2015 01:04PM 8085221551 CHRIS FERRARA LAW



### CERTIFICATE OF SERVICE I hereby certify that on this date l have sentthe foregoing Respondent's Reply Briefbyfacsimile, email. and by U.S. mail, postage prepaid, to:
Attn: Hearing Docket Clerk, AGC-430 WilburWright Building- Suite 2W1000 Federal Aviation Administration 600 Independence Ave., SW Washington, DC 20591
Casey E. Gardner, Attorney Enforcement Division, AGC·300 Federal Aviation Administration Office ofthe ChiefCounsel 800 Independence Ave., S.W, Washington, D.C. 20591 Telephone: (202) 267-5964 Facsimile: (202) 267-5106

Christopher D. Ferrara Attorney for the Respondent Dated: January 8, 2016 PAGE 08/08