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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 

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Respondent. ) 

RESPONDENT'S REPLY BRIEF 

Pursuant to 14 C.F.R. & 13233 (e), Respondent files this brief in support of its 

reply to the appeal of tbe initial decision iss11ed by Administrative Law judge 

Richard C. GoodWin (ALJ) on August 31, 2015 in the above-captioned matter. 

I. STATEMENT OF THE CASE 

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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 of the 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. 
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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 attempt to settle this matter and finally on November 30, 2015 spoke 

to attorney for the Complainant, who related, that the 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 of justice, 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 of the U.S. into law on 

August 3, 2012. 

1!. STATEMENT OF FACTS 

Respondent again substantially agrees with Complainant's version of the 

facts, with one glaring exception: the ALJ did not "summarily" state that the 

"'totality of the facts and circumstances warranted a $10000 civil penalty'", he 

made an informed decision supported by a careful a,nalysis of the facts & 

circumstances. Naturally, Office of Chief Counsel tota,lly ignores section, XIV, 
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XlV A and B of the initial decision of Administrative Law Judge, 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 by Respondent 

below. The ALJ made his decision based on the totality of the facts and 

circumstances that he adduced from hearing the witnesses and seeing the evidence 

on December 4, 2014. Every party agrees that the FAA has the burden ofjustizying 

the amount of civil 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 seeks to have the case retried on appeal by the very same 

agency that brought the original charges. 

JV, STANDARD OF REVIEW 

The standard of review cited by the ComplaJnant, is simply not accurate and 

is rendered moot by the Pilot's Bill of Rights, "The Pilot's Bill of Rights strikes from 

49 USC s. 44709(e) language requiring the Board defer to all validly adopted 

interpretation oflaws and regulations the Administrator carried out and of written 

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". 

Administrator vs. Jason L. Tones: NTSB Order No. EA5647. The opinion of the ALJ in 

the Jones case was cited; "While I am no longer bound to give deference to the FAA 

by statute, that agency is entitled to judicial deference due to all other federal 

administrative agencies under the Supreme Court decision in Martin vs. 
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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 of Jaws, regulations and policies that the acting administration 

carries out, I must analyze and weigh the facts and circumstances in each case to 

determine if the sanction selecteg by the acting adminjstrgtor is appropriate". 

(emphasis added). This is exactly what ALJ Goodwin did. 

V.ARGUMENT 

PAGE 04/08 

Complainant complains that the sanction, $10,000 was a result of the AL) 

ruling that the Complainant failed to meet its burden on the grounds that the 

Complainant failed to: (1) prove to the ALJ how it used agency sanction guidance to 

arrive at the proposed civil penalty; (2) "prove the existence of aggravation factors 

and failed to show how it used aggravation factors or mitigation factors to adjust the 

suggested sanction"; [3) present evidence that it considered the nature, 

circumstances, and gravity of Respondent's violation; and ( 4) present evidence as to 

"whether Regent's (sic) ability to pay was taken into account", While this is correct, 

it does not matter. 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 that the ''civil penalty must reflect the totality of the 

~;ircumstances surrounding: the violations" (emphasis added) citing Eastern Air 

Center. Inc. FAA Order No. 2008-3 (lanuary 28, 2008). 

Complainant goes into a spasm of arguments in its brief that the conclusions 

reached by the AI.J were deficient or erroneous, but it ignores one salient fact that 

both sides agreed to: there were no safety issues involved in the violations. As a 
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matter of fact, Complainant never pointed to aggravating facts only those in 

mitigation stating that, "there were a number of aggravating factors which could 

have been used to increase the amount of the sanction Complainant's dosing 

argument at p 10, but didn't specifically do so. The ALJ points out in his decision 

that the Complainant in its closing argument and rebuttal, did not point out a.ny 

aggravating factors, and further pointed out that, "the FAA must also prove the 

existence of aggravating factors, and must show how it used aggravating or 

mitigating factors to adjustthe suggested sanction evidence of swift comprehensive 

corrective action must be considered as a mitigation factor. Significant weight has 

been given to Respondent's efforts to ensure that a violation will 11ot reoccur." 

Decision at 15. Ironically, the Complainant pointed out the mitigating factors, 

agreeing with the ALJ, but never explained why the initial sanctions used were 

appropriate. Complainant relied solely on the fact that they were contained in FAA 

Order 2150.3B. Under case law, cited above, the ALJ may require more andjor 

ignore this order. 

Further, the complainant complains that: ALJ's opinion provides no rationale 

or explanation as to how he determined the penalty amounts were appropriate for 

Respondent's violations. Rather, his opinion states simply that he took" the totality 

of the facts and circumstances into account", and cites the rules and practice 

governing civil penalty actions. According to the Administrator v. jason L. Jones. ID, 

he does not have to. This required adherence has been superceded by law. the 

Pilot's Bill of Rights. Law trumps FAA orders, 
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VI. CONCLUSION 

The ALl did not err. The ALJ's decision was way ahead of the FAA mindset, in 

his interpretation of the mandates contained in the Pilot's Bill of Rights. The 

Complainant states in its Conclusion that the penalty amount is correct because it 

"derived its proposed $27,800 civil penalty using FAA Order 2150.3b and its 

incorporated Sanction Gu.idance Tables, and, as such, the penalty reflects the pQlicy 

of the ggency .... " The Pilot's Bill of Rights is )illy, superceding all orders and 

policies, "strikes from 49 U.S.C. s. 44709 (e) language requiring the Board defer to all 

validly adopted interpretC\tions oflaws and regulations the administrator carried 

out and of written 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 of the ALJ's adjudication. 

Dated: January 8, 2016 

~espectfully submitted, 

Christopher D. Ferrara 

Attorney for the Respondent 
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CERTIFICATE OF SERVJ~E 

l hereby certifY that on this date I have sent the foregoing Respondent's 

Reply Brief by facsimile, email, and by U.S. mail, postage prepaid, to: 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1 000 

Federal Aviation Administration 

· 600 Independence Ave., SW 

Washington, DC 20591 

Casey E. Gardner, Attorney 

Enforcement Division, AGC-300 

Federal Aviation Administration 

Office of the Chief Counsel 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Telephone: (202) 267-5964 

Facsimile: (202) 267-5106 

~ra 

/2?~­

Attorney for the Respondent 

Dated: January 8, 2016 

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CERTIFICATE OF SERVICE 

I hereby certify that on this date l have sent the foregoing Respondent's 

Reply Brief by facsimile, email. and by U.S. mail, postage prepaid, to: 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright 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 of the Chief Counsel 

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 

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