2017-02-10 09:31 

In the Matter of: 

AWP7 - Legal Office 3107256816 >> 2022671293 

U.S. DEPARTMI'NT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

DocketNo: FAA-2015-3307 

FELTS FIELD AVIATION 

) 

) 

) 

) 

) 

CaseNo: 2015WP910090 

Respondent 

--------____ ) Judge J.E. Sullivan 

COMPLAINANT'S OPPOSITION TO RESPONDENT'S 

MOTION FOR PRECLUSION OF EVIDENCE 

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Complainant, by and through counsel, files this opposition to the Motion for Preclusion 

of Evidence filed by Respondent on January 31,2017. 

J<'ACTUAL BACKGROUND 

On December 15, 2016, Judge Sullivan, verbally Ordered Complainant to provide 

Respondent a detailed calculation of its proposed civil penalty by January 17,2017. Pursuant to 

Judge Sullivan's Order, C~nnplainant provided a detailed wlculation of the proposed civil 

penalty llJ Respondent's cuunsel by facsimile and U.S. First Class Mail on January 17, 2017. 

Additionally, ptlrsuant to 14 C.F.R. § 13.210, the Complainant filed a copy of its calculatiun of 

the proposed civil penalty with Judge Sullivan and the Federal Aviation Administration Hearing 

Docket Clerk on January 17, 2017. 1 After receiving Complainant'~ calculation, on January 17, 

2017, Respondent filed a Motion to Dismiss; and on January 24, 2017, Complainant filed an 

Opposition to Respondent's Motion to Dismiss. In response to Complainant's oppusition, on 

January 31, 2017, Respondent filed a Motion to Dismiss-Supplemental Brief On February 3, 

2017, the parties participated in a conference call with Judge Sullivan. During the conference 

I See Cornpta[uant1

S Calculation of the Proposed Civil Penalty with Certificate of Service and Transmisslon Logs 

(Attachment I). 
2017-02-10 09:31 AWP7 - Legal Office 3107256816 >> 2022671293 p 3/14 

2 

call Judge Sullivan interpreted Respondent's Motion to Dismi~s-Supp1cment<~l Brief to include 

an altemalive Motion for Preclusion of Evidence. On February 6, 2017, Judge Sullivan issued an 

Order denying Respondent's Motion to Dismiss and reserving Respondent's Alternative Motion 

for Preclusion of Evidence pending the Complainant's submission of a response. 

ARGUMENT 

Respondent's Motion for Preclusion should be denied because Complainant provided 

Respondent with a calculation of the proposed civil penalty in compliance with 14 C.F.R. § 

13.220(n). On January 17, 2017, Complaimmt provided Respondent with a detailed calculation 

of the proposed civil penalty. The calculation of the proposed civil penalty clearly explained that 

pursuant to FAA Order 2150.3B, Appendix B, fig. B-5-b(l), a maximum civil penalty was 

wan-anted in thi~ case because Respondent failed to include a safety-sensitive employee in its 

drug and alcohol program for years and allowed that employee to operate over 60 part 135 flights 

on its behalf. Respondent's (ai!ure to inclLtde a ~afety sensitive ~mployee in its random drug and 

alcohol testing program for such an extended period of" time and allowing that employee to 

operate part 135 flighh on its behalf were careless acts that posed a substantial threat to air 

safety. Under the facts and circumstances of this case, a maximum civil penalty is consistent 

with the FAA's guidance in FAA Order 2150.3B. 

In Accordance with Judge Sullivan's December 15, 2016, verbal Order, Complainant 

provided Respondent with a calculation of the proposed civil penalty that explained the factors 

the Agency considered when cvalLLating this case. Although Complainant did not provide the 

calculation in a chart format with headings and duplicative information as Respondent suggest; it 
2017-02-10 09:31 AWP7 - Legal Office 3107256816 >> 2022671293 p 4/14 

3 

nonethele~~ disclosed the rel<;Jvant information to Respondent. For example, Complainant clearly 

explained that the degree of hazard lor this case was ~ignificant because Respondent's failure to 

subject a pilot to random drug and alcohol testing for years could have Jed to the p\lrfonnance of 

safety-sensitive work in an impaired statc.2 Additionally, Compl~inant explained that 

Respondent allowed an employee to operate over 60 part 135 tlights in violation of regulatory 

requirements. As a result, Respondent committed multiple acts that were considered aggravating 

factors. 

Complainant also highlighted that the proposed civil penalty was consistent with the 

Agency's guidance in FAA Order 2150.3R, and assessed Re~pondent's ability to absorb the 

proposed sanction. When the Agency assesses an cntiti~s ability to absorb a sanction the Agency 

classifies the entity based on its size to ensur~ that the sanction is substantial enough to be a 

deterrent and not merely the cost of doing business. J In its calculation Complainant states that 

Felts field is considered a Group IV operator; and the sanction range fbr a maximum civil 

penalty is $4,400 lo $11,000 4 From the face of Respondent's Motion, it appears that Respondent 

misunderstands the Agency's enf:'orcement process and is confusing the analysis of the ability to 

absorb sanction with the aualysis of the inability to pay affirmative defense. However, the 

Agency is not required lo establish Respondent's inability to pay the proposed civil penalty; but 

rather, the burden of proof for the inability to pay affirmative defense lies with Respondent. 

Fmthermore, Respondent's argument that Complainant's calculation of the proposed civil 

penalty is incomplete because the calculation is less voluminous than the enforcement 

2 !d. at p. 2. 

3 FAA Order 2l50.3B, Ch.7. para_ 4.j. 

4 Complaimnt's Calculation of the Proposed Civil Penalty at p.l. 
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4 

investigative report (EIR) is without merit. On January 26, 2017, this court determined that 

Respondent was not entitled to the redacted intonnation in the EIR because those provisions are 

protected under the work product privilege. 5 Specifically, this court stated that "because an FAA 

investigator's work is preliminary to a regulatory legal enforcement action and subject to review 

and modification (or abandonment), it qualifies as protected under an attorney 'work product' 

privilege."6 As a result, Complainant withheld privikge information from its calculation of the 

proposed civil penalty and disclosed the facts, data, and opinions utilized by the Agency to 

support the allegations in the Complaint. This ultim<~tely led to Complaint's calculation of the 

proposed civil penalty being shorter in length than the redacted portions of ElR. But, despite 

being shorter in lent,>ih, Complaint's calculation of the proposed civil penalty nevertheless 

complies with Judge Sullivan's Order and clearly articulates the facts and circumstances 

considered by the Agency. Consequently, Respondent's assertion that Complaimmt's calculation 

of the proposed <.Oivil penalty is incomplete is erroneous and should not be given much weight. 

Lastly, Respondent has failed to demonstrate that it has suflered any prejudice or harm. 

Since its substitution of counsel, Complainant has timely responded to all of Respondent's 

motions and requests for information. Specifically, Complainant has provided Respondent with 

the following information: ( l) a redacted copy of the E!R; (2) a modified copy of the redacted 

EIR with a privilege log; (3) all of the items M proof utilized by the Agency to support the 

allegations against Respondent; (4) responses to all discovery intenogatories, request tor 

admissions, and request for productions; and (5) a detailed calculation of the proposed civil 

penalty. Respondent has been provided sufficient infonnation to adequately and fairly defend its 

5 Judge J.E. Sullivan's Order Granting in Part and Denying in Part the R.espondent 1

S Motion to c,)mpd~ served Jan. 

26, 20l7 at p. 9. 

6 !d. 
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5 

case. The only information Complainant has not disclosed to Respondent 1s privileged 

in [ormation. 

CONCLUSION 

For the foregoing reasons, Complainant respectfully requests the Judge deny Respondent's 

Motion for Preclusion of Evidence. 

Rcspedfully submitted, 

Naomi Tsuda 

Assistant Cbief Counsel for Enforcement 

Fatimah 

~------=:__..> Stokley 

Enforcement Division, Western Team 

P.O. Uox 92007 

Los Angeles, CA 90009-2007 

Email: fatimah.stokley@faa.gov 

Telephone: (3\0) 725-7112 

Facsimile: (310) 725-6816 

Date: February 10,2017 
2017-02-10 09:31 AWP7 - Legal Office 3107256816 >> 2022671293 

Docket No. FAA-2015-3307 

Case No. 2015WP910090 

CERTIFICATE OF SERVICE 

p 7/14 

6 

I hereby cettify that on this date l have sent by Facsimile and U.S. First Class Mall, the 

COMPLAINANT'S OPPOSITION TO RESPONDENT'S MOTION FOR PRECLUSION OF 

EVIDENCE, addressed as follows: 

JLLdge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave, S.E. 

East Rldg., Room Ell-3 I 0 

Washington, D.C. 20590 

Fax: 202-366-7536 

Federal Aviation Administration 

Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2Wl 000 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Fax: 202-267-1293 

Mark J. Conlin 

421 W. Riverside Ave., Suite 911 

Spokane, WA 99201 

Fax: 509-623-1650 

Also by Email: mc<mlin@aviation-law.com 

Antonia Garcia, Mgmt. and Program Analyst 

Enforcement Division 

National Enforcement Prob'Tilltl 

Westem Team 

Federal Aviation Administration 

Lawndale, California 

Dated: Februaty 10,2017 
2017-02-10 09:31 

In the Matter of: 

AWP7 - Legal Office 3107256816 >> 2022671293 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARiNGS 

WASHINGTON, D.C. 

Docket N,,: FAA-2015-3307 

FELTS FIELD A VlATlON 

) 

) 

) 

) 

) 

Case No: 2015WP910090 

Respondent ___ ) Judge J.E. Sullivan 

COMPLAINANT'S CALCULATION OF THE PROPOSED CIVIL PENALTY 

p 8/14 

Complainant, by and through cOLmsel, provides the following calculation ofthe proposed 

civil penalty pursuant to Judge Sullivan's Order on December 15,2016. 

During the Federal Aviation Administration's (FAA) investigation of Case No. 

20 15WP91 0090, the FAA discovered that Felts Field Aviation (Felts Field) failed to comply 

with the requirements of 14 C.F.R. Part 120 and 49 C.F.R. Part 40 for its drug and alcohol testing 

progrant. Specifically, Felts f'ield hired Richard Webber -a pilot- in 2008, but failed to add 

Mr. Webber to its random dmg and alcohol testing pool until April 6, 2015. Mr. Webber was nut 

Included in tl1e random selection pool during selections made in July 2013, October 2013, 

January 2014, April 2014, July 2014, October 2014, and January 201 5. Prior to adding Ricl1ard 

Webber to its random drug and alcohol testing pool, Felts Field allowed Mr. Webber to perform 

over 60 part l35 flights. 

According to FAA Order 2150.38, Appendix B, fig. B-5-b(!), a mode1·atc to maximum 

civil penalty is recommended for failing to include a safety-sensitive employee in FAA 

mandated drug and alcohol testing programs. A pilot is a safety-sensitive employee. Under the 

f-AA's classifications of operators, Felts Field is considered a Group IV operator; and the 

sanction range for a moderate civil penalty is $2,200 to $4,399 and a maximum civil penalty is 

$4,400 to $11,000. FAA Order 2150.38, Appendix B, p. B-3- BA. In this case, Felts Field 

Pagel of7 Anachment 1 
2017-02-10 09:32 AWP7 - Legal Office 3107256816 >> 2022671293 p 9/14 

!ailed to include Richard Webber in its drug and alcohol progrem for ye~rs and allowed Mr. 

Webber to operate over 60 part 135 flights on its behalf. Failing to subject a flight crew member 

to rarrdom drug arrd alcohol testing for years could lead to the performance of safety-sensitive 

work in an impaired state. Felts Field's failure to include Richard Webber in its random drug 

and alcohol testing program for such an extended period of time and allowing Mr. Webber to 

operate part 135 flights on its behalf were cureless acts that posed a substantial threat to air 

safety. As a result, such acts are considered aggravating !actors. See !d. at Ch. 7, para. 4, 

Consequently, the FAA assessed a maximum civil penalty of $11,000 for this case. Under the 

facts and circumstances of this case, a maximum civil penalty is consistent with the FAA's 

guidance in FAA Order 2150.38. 

Respectfully submitted, 

Naomi Tsuda 

Assistant Chief Counsel for Enforcement 

Fatitnah 

~£S? Stokley 

Enforcement Division, Western Team 

P.O. Box 92007 

Los Angeles, CA 90009-2007 

Email: fatimah.stokley@faa.gov 

Telephone: (31 0) 725-7112 

Facsin>ile: (310) 725-6816 

2 

Page 2 of7 Anachmen1 l 
2017-02-10 09:32 AWP7 - Legal Office 3107256816 >> 2022671293 

Docket No. FAA-20 15-3307 

Caoe No. 2015WP910090 

CEKT!FlCATE OF SERVICE 

p 10/14 

I hereby cettify that on this date l have sent by U.S. First C:l~ss Mall and facsimile, the 

COMPLAINANT'S CALCULATION OF THE PROPOSED C!VJL PENALTY, addressed as 

follows: 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Oftlce of Hearings, M-20 

US. Department of Transportation 

1200 New Jersey Ave, S.E 

East l3ldg., Room El1-31 0 

Washington, D.C. 20590 

Fax: 202-366-7536 

Federal Aviation Administration 

Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2Wl 000 

800 Independence Ave., S. W. 

Washington, D.C. 20591 

Fax: 202-267-1293 

Mark J. Conlin 

421 W. Riverside Ave., Suite 911 

Spokane, W A 9920 l 

Fax: 509-623-1650 

Debbie 

1}Q..~-lf~ Reed 

Management Program Analyst 

Federal Aviation Administration 

Office of the Chief Counsel 

Lawndale, California 

Dated: January !7, 2017 

Page) of7 Attachment 1 
2017-02-10 09:32 

To: 

Phone: ···-·-·-·· Fax:_ 

From: 

Title: 

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Date: --···- ''" 

Pages w/cover: 

AWP7 - Legal Office 3107256816 >> 2022671293 p 11/14 

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Page 7 of7 Allachmcnt l 
2017-02-10 09:31 AWP7 - Legal Office 3107256816 >> 2022671293 p 1/14 

To: The Honorable JE Sullivan, ALJ 

Company: U S. DOT, Offioe of Hearings, M-20 

Phone: 

Fax. 202-366-7536 

From: FAA, Enforcement Division- Western Team 

Title: Complainants Opposition to Respondent's Motion For 

Predusion of Evidence, In the matter of Felill Field Aviation, 

Docket No. FAA-2015-3307, FAA Case No. 

2015WP91000J 

Date: 2/10/2017 

Pages wlcover 14 

cc: Mark J. Colin, Counsel for the Respondent. 

Facsimile 509-623-1650 

FAA, Hearing Docket Clerk, Facsimile 

202-267-1293 

Federal Aviation 

Administration 

Enforcernent DJv\sfon- W~m Te;;~.m 

Po Box92007 

Los Angeles, CA 90009-2007 

T 310-725-7112 

F 310-725-6816 

E Fatiman.Stokley@faa.gov 

Facsimile 

0 U.S. Oepartmecn1 ofTranspanat'ion