UNITED STATES DEPARTMENT OF TRANSPORTATION , 7 5^-, 

FEDERAL AVIATION ADMINISTRATION ^^^ ' '*TM 

HEARING DOCKET 

Federal Aviation Administration, 

Complainant, 

V. 

Sun Quest Executive Air Charter, Inc. 

Respondent. 

FAA Docket No CP08 WP0004 

(Civil Penalty Action) 

DMS No. FAA-2008-0238 

Complainant's Appeal Brief 

Pursuant to 14 CFR Section 13.233, the Complainant files this brief 

perfecting its appeal of the written initial decision in this matter that was 

issued on January 26, 2010. 

Statement of the Case And Relevant Stipulated Facts 

The Complainant alleged in its Amended Complaint dated March 31, 

2008 the following: Respondent at all times mentioned in the Amended 

Complaint held an air carrier certificate authorizing it to operate under part 

135 of the Federal Aviation Regulations. After an inspection, conducted on 

March 18, 2005, several problems were found with the flight and duty time 

records for Respondent's pilots. It was alleged that during the months of 

January, February £ind March of 2005, Mark Smith — who was the 

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President, Chief Pilot, Check Pilot and Line Captain for Respondent and 

who was a Los Angeles Police Department police helicopter pilot - was 

used as a pilot by Respondent in part 135 operations. It was also alleged that 

Frank Kratzer (now deceased) who was the Respondent's Director of 

Operations was used as a pilot in Respondent's part 135 operations. 

The Complainant alleged that Respondent's aircraft flight logs and the 

flight and duty time records for Mark Smith revealed that on January 24, 

2005, he was on duty with the Respondent for 11 hours, flew 3.8 hours 

charter and gave flight training to another of Respondent's pilots for 1.3 

hours. It was alleged that the 1.3 hours of flight training was not recorded 

on Mr. Smith's Sun Quest flight and duty time record for January 24, 2005. 

Thus, it was alleged that Respondent's records failed to provide accurate 

information in sufficient detail to determine whether Mr. Smith was in 

compliance with the part 135 flight and duty limitations for that date. 

Complainant also alleged that the March 9, 2005 flight logs for 

aircraft "N717HT" showed that Mark Smith spent 1.5 hours givmg a check 

ride to another company pilot and later that day operated the aircraft on a 

1.9-hour charter flight. It was alleged that Respondent's records for pilot 

flight time only reflected the 1.9-hour charter flight on that date and thus. 

Respondents records failed to provide accurate information in sufficient 
detail to determine whether Mr. Smith was in compliance with the part 135 

flight and duty time limitations for that date. 

It was also alleged (and these are the allegations relevant to this 

appeal) that Respondent's flight and duty time records for Mr. Smith did not 

reflect any of his pilot flight time for the Los Angeles Police Department 

(LAPD). It was alleged that flight time flown by Mr. Smith for the LAPD 

constituted "other commercial flying" and must be tracked by Respondent. 

The Complainant alleged that during the month of February 2005, Mr. Smith 

served as pilot for the LAPD on several dates with a total flight time for the 

month of 50.4 hours. It was alleged that Respondent's failure to keep a 

record of Mr. Smith's pilot flight time for the LAPD made Respondent 

unable at any time to determine if Mr. Smith was in compliance with the 

flight and duty limitations found in part 135. 

The Complainant alleged that Respondent violated section 

135.63(a)(4)(vii) which provides, in pertinent part, that each certificate 

holder shall keep at its principal business office ... an individual record of 

each pilot used in operations under this part, including the following 

information - the pilot's flight time in sufficient detail to determine 

compliance with the flight time limitations of this part. 
On April 23, 2008, Respondent filed its Amended Answer. In regard 

to the issues that are the subject of Complainant's appeal now, Respondent 

admitted that Mr. Smith flew a helicopter for 50.4 hours in February 2005 

for the LAPD and that the Respondent did not track those flight-time hours. 

However, Respondent asserted that it was not required to keep a record of 

those hours because such operations for the LAPD were "public aircraft" 

operations. Respondent likened flights in LAPD aircraft to flights by Air 

Force National Guard pilots in military aircraft. Respondent asserted that 

previous FAA principal operations inspectors "approved" of Mr. Smith's 

flights in the LAPD helicopters and advised Mr. Smith that such flying was 

not a "commercial flight." Respondent stated that it did not have a duty to 

keep records of Mr. Smith's LAPD flying. 

A hearing was to be conducted on January 26, 2009 before 

Administrative Law Judge Richard C. Goodwin. However, on that date, the 

judge and the parties agreed that the parties would submit a stipulated 

statement of the facts and written briefs to the judge on the legal issues. 

The parties each submitted opening briefs, reply briefs and pursuant to 

the judge's order, supplemental briefs on the legal issues in this case. On 

January 26, 2010, Judge Goodwin served his initial decision in this matter. 

In sum, the judge found that Respondent failed to maintain records of pilot 
flight/duty time in sufficient detail to determine compliance with the flight 

time limitations in two ways: First he found that Respondent's records 

concerning its pilots' flight time failed to record when flight time began and 

ended and thus the Respondent could not determine what rest was required 

(in terms of when it had to begin and how long the rest period had to be). 

Second, the judge found that Respondent's failure to track training and 

check rides as "other commercial flying" done by Mark Smith, for 

Respondent, violated section 135.63. 

As is relevant to this appeal, the judge found that Mark Smith's 

service, as a pilot for the LAPD for 50.4 hours in February 2005, did not 

have to be tracked or recorded by the Respondent. The judge found that the 

LAPD aircraft was a "public aircraft" and that"... as such, is not subject to 

FAA jurisdiction." See ALJ initial decision at page 6. In support of his 

decision, the ALJ cited 49 USC Section 40102(a)(41)(D) and U.S. v. Aero 

Spacelines, Inc, 361 F.2d 916, 921 (9* Cir. 1966). 

The law judge reduced the civil penalty to $5000 due to the totality of 

the circumstances. 

The Regional Counsel for the Western-Pacific Region filed a timely 

notice of appeal of Judge Goodwin's decision. 
Issues 

1. Whether Judge Goodwin erred in finding that the FAA does not 

have any jurisdiction over public aircraft operations? 

2. Whether Judge Goodwin erred in finding that the LAPD aircraft 

were "public aircraft" in view of a misunderstanding of the law 

and in view of the absence of any evidence — on a flight by flight 

basis - that Mark Smith's LAPD helicopter flights in February 

2005 were eligible for "public aircraft" status? 

3. Whether an air carrier must track and record flight time - as 

"other commercial flying" ~ accumulated by one of its pilots 

when such flying is conducted for a police department (regardless 

of whether the particular flight is public aircraft or civil aircraft) 

and the pilot is paid by the police department for such flight? 

4. Whether the ALJ erred in reducing the civil penalty amount? 

Argument 

1. Judge Goodwin erred in finding that the FAA does not have any 

jurisdiction over public aircraft operations. 

Judge Goodwin erred in finding that "public aircraft" operations are not 

subject to FAA jurisdiction. See ALJ initial decision at page 6. Based on 

his erroneous conclusion, he found that Respondent did not have to comply 

with section 135.63(a) with regard to recording Mark Smith's flight on 

behalf of the LAPD. Id. 

As a threshold matter, nothing in Title 49 of the US Code bars the FAA 

fi-om regulating public aircraft operations — especially if such operations 
could endanger "civil aircraft" operations. The FAA has the statutory 

authority to "... promote the safety of civil aircraft in air commerce ..[by 

adopting rules] that the [Administrator] finds necessary for safety in air 

commerce and national security." See, 49 USC section 44701(a)(5). If a 

public aircraft operation would endanger the operation of civil aircraft, the 

FAA has the statutory authority to adopt rules governing public aircraft 

operation if such rules are necessary for the safety of civil aircraft 

operations. 

While it is true that the FAA has chosen not to impose airman 

certification requirements or airworthiness certification requirements on the 

pilots or the aircraft used in public aircraft operations, it would be a mistake 

to conclude that the FAA has no statutory authority to regulate public 

aircraft operations and it would be a mistake to conclude that the FAA has 

not issued regulations that apply to any "aircraft" operation — including 

public aircraft operations — in US airspace. 

A. The FAA Has Issued Rules That Apply To Operators of All 

Aircraft Conducting Flights in US Airspace, Including Public 

Aircraft Operations. 

It is important to note that although a flight that has "public aircraft" 

status is not subject to many safety regulations — e.g., the pilot does not 

have to hold an FAA pilot certificate and the aircraft need not have an FAA 
airworthiness certificate — it is nonetheless subject to those FAA 

regulations that are addressed to the operators of "aircraft". In other words, 

while some FAA regulations are only directed to the operators of "civil 

aircraft" (e.g., 91.701, 91.7, 91.17) other FAA rules are directed to the 

operators of "aircraft" (e.g., 91.13, 91.11, 91.111,91.115, 91.119) and thus 

apply to all operators of aircraft regardless of whether a particular flight does 

or does not have public aircraft status. Rules that apply to the operators of 

"aircraft" (i.e., rules that do not distinguish between "civil aircraft" 

operations and "public aircraft" operations) generally speaking, regulate how 

the operator of any aircraft would maneuver and operate in airspace. See 

e.g., 14 CFR sections 91.111,91.113, 91.115, 91.117, 91.119, 91.121, 

91.130, 91.131, 91.133, 91.135, 91.137, 91.139(c), 91.141, 91.173, 91.177, 

91.179 91.181, and 91.183 of the Federal Aviation Regulations. 

If government aircraft operations ~ that happen to have public aircraft 

status on a particular flight ~ did not have to comply with the regulations 

listed in the previous paragraph, that would be a prescription for deadly 

chaos. For example, occasionally, the FAA will issue a NOT AM forbidding 

the operation of aircraft over or in the vicinity of any area visited by the 

President of the United States. See 14 CFR section 91.141. The prohibition 

in that section is not limited to the operators of civil aircraft. It applies to the 
operators of "aircraft." It is simply a mistake to think that the FAA does not 

regulate public aircraft operations - albeit to a lesser extent than civil aircraft 

operations. 

Furthermore, even in regard to external load operations and agricultural 

operations, which are governed by FAA parts 133 and 137 respectively, the 

FAA specifically uses the phrase "public aircraft" in order to excuse those 

operations from the certification standards of those parts, but not the 

operating rules of those parts. Thus, in section 133.1(c)(5), the FAA 

provides that the certification rules of part 133 do not apply to "a Federal, 

State or local government conducting operations with public aircraft". 

Necessarily, that means that only subpart B of part 133 does not apply to 

public aircraft operations whereas provisions in subparts C of that part 

would apply to public aircraft external load operations. See also FAA 

Interpretation 1991-25, issue number 1 generally. Federal Aviation 

Decisions (Clark, Boardman, Callaghan, 1991). 

In regard to agricultural operations, the FAA specifically excuses "public 

aircraft" operations from some, but not all, of the safety rules in part 137. 

See e.g., 14 CFR sections 137.11(c) and 137.29(d)(which excuses pubUc 

aircraft operations from some, but not all of the operating rules in subpart C 

to part 137). 
10 

By way of one final example, the FAA rules establishing Prohibited 

Areas and Restricted Areas forbid any person from operating "an aircraft" in 

those areas contrary to the terms in the regulations establishing those areas. 

See e.g. 14 CFR sections 73.13 and 73.83. If Judge Goodwin is correct that 

the FAA does not have the statutory authority to regulate any aspect of 

public aircraft operations, then state and local government aircraft operations 

would not be prohibited from flying over Camp David and certain military 

bases that have airspace designated as Prohibited Areas or Restricted Areas. 

The FAA rules regarding Prohibited Areas and Restricted Area apply to all 

aircraft operations, including public aircraft operations. Furthermore, when 

military pilots, who fly military aircraft which have public aircraft status, 

violate FAA safety rules. Congress specifically provided that the FAA 

forward the results of its investigation of such violations to the military for 

appropriate handling. See 49 USC section 46101(b). If FAA rules did not 

apply to those public aircraft operations conducted by the military in US 

airspace, there would be no need to have a statutory provision instructing the 

FAA to forward complaints about members of the Armed Services to the 

appropriate military official. 
11 

B. The FAA Had and Has the Statutory Authority To Issue Safety 

Rules Governing the Operation of All Aircraft in US Airspace, 

Including Those Flights That Have Public Aircraft Status. 

The FAA was created in 1958 in large measure to provide a centralized 

focus for aviation and replace an ineffective system of diffused authorities 

that had evolved over time.' The legislative history of the Federal Aviation 

Act of 1958 (now substantially recodified under Title 49 of the United States 

Code), makes clear that Congress was creating an independent agency with 

"plenary authority" over the nation's airspace. See S. REP. NO. 1811, 85* 

Cong., 2d Sess. 7 (1958). The report notes, on page 10, that the bill to create 

the FAA is intended to address two ftindamental deficiencies in the Federal 

Government's aviation responsibilities, one of which is a "lack of clear 

statutory authority for centralized airspace management...." Id. Pages 13 

- 15 of the report, concerning "Centralized Airspace Management," provide 

a clear perspective of the Congressional intent in creating the FAA - "The 

present legislation proposes to clear away this ambiguity once and for all by 

vesting unquestionable authority for all aspects of airspace management in 

the Administrator of the new agency." (page 14); "[T]he Administrator is 

' Prior to 1958, the functions of the FAA were splintered - the Civil Aeronautics Authority under the 

Department of Commerce possessed day-to-day air traffic control responsibilities; the Civil Aeronautics 

Board possessed accident investigation and safety regulatory responsibilities; and Airways Modernization 

Board had responsibility for planning and developing a system of air navigation facilities; and an 

interagency Au" Coordinating Committee had, until shortly before, reviewed all matters involving the use of 

airspace. 
12 

also given plenary authority in the matter of air traffic rules ... " (page 15); 

[T]he bill proposes to vest in a single Administrator plenary authority for 

airspace management. If such authority is once again fractionalized and 

made subject to committee or panel decision, the evil will be continued." 

(page 15). Id. 

Furthermore, 49 U.S.C. § 40103(b), states that the Administrator of the 

Federal Aviation Administration shall develop plans and policy for the use 

of the navigable airspace and assign by regulation or order the use of 

airspace as necessary to ensure the safety of aircraft and the efficient use 

of airspace. The statute ftjither states that the Administrator shall prescribe 

air traffic regulations on the flight of aircraft for: (1) navigation, protecting, 

and identifying aircraft; (2) protecting individuals and property on the 

ground; (3) using the navigable airspace efficiently; and (4) preventing 

collision between aircraft, between aircraft and land or water vehicles, 

and between aircraft and airborne objects, (emphasis added). 

Based on the plain language of the statute, the Administrator is 

charged with "ensuring the safety of aircraft," both civil and public, in the 

use of U.S. airspace. In view of the foregoing, the FAA had the statutory 

^ The "evil" that the Senate Report alludes to included the chaos that developed before 1958 when it was 

not clear who, i.e., a particular civilian agency or the military, had the sole authority over air traffic, 

airspace and other aviation safety issues. The chaos led to aviation accidents, including midair collisions. 
13 

authority to regulate how all aircraft operators operate in US airspace in 

order to avoid midair collisions and in order to protect people on the ground. 

Section 40103 of Title 49 provides both adequate authority for the rules 

listed earlier in this brief that apply to the operation of "aircraft", and for 

imposing operating requirements on anyone, including public aircraft 

operators, to ensure the safety of civil aircraft operations. Section 

44701(a)(5) of Title 49 requires the Administrator to promote safe flight of 

civil aircraft in air commerce by prescribing regulations and minimum 

standards for other practices, methods, and procedures the Administrator 

finds necessary for safety in air commerce and national security. 

The FAA promotes the safe flight of civil aircraft by regulating any 

aircraft operation that directly affects or may endanger safety in air 

commerce. Relying on this authority, and the authority in section 40103, 

the FAA established operating rules for rotorcraft external load operations in 

part 133, and agricultural aircraft operations in part 137. It is true that the 

certification rules in Subpart B of parts 133 and 137 expressly exclude 

public aircraft operators."^ However, a similar exception does not exist for 

the operating rules. Public aircraft operators are required to comply with the 

' See Federal Aviation Decisions, 1992-21, 1991-25 (West Publishing Co.). 

* Sections 133.1(c)(5) and 137.11(c) exempt public aircraft operators from the requirement to hold an 

operating certificate when conducting public aircraft operations. 
14 

many of the operating rules in parts 133 and 137 in the same way that they 

are required to comply with many of the flight rules in Subpart B of part 91.^ 

When Congress authorized the FAA to prescribe regulations and standards 

for "the operation of aircraft that directly affects or may endanger safety in 

air commerce" it made no distinction between whether the regulated aircraft 

was civil or public. 

C. Judge Goodwin Misread the Ninth Circuit's Decisions. 

Judge Goodwin cited U.S. v. Aero Spacelines, Inc., 361 F.2d 916, 921 (9"" 

Cir. 1966) as authority for his finding that the FAA "... does not have 

jurisdiction over public aircraft." See ALJ initial decision at p. 6. Judge 

Goodwin's reliance on Aero Spacelines for this proposition is misplaced. In 

a decision subsequent to Aero Spacelines, the Ninth Circuit recognized the 

limitations of its holding in that case. See U.S. v. Christensen, 419 F.2d 

1401, 1403 (9* Cir. 1969). The Ninth Circuit characterized its language in 

Aero Spacelines as "dicta" when the Court, in Christensen, wrote: 

[T]his court was not concerned in Aero Spacelines, Inc. with 

regulations of the FAA relating to flight rules, nor with instructions 

form Air Traffic Control. Dicta from that case should not be 

controlling on our present analysis. We therefore distinguish it. Our 

research has revealed that Congress recognized the important need for 

' See the first paragraph under part A of this argument for a list of some of those rules in Part 91. 
15 

flight rules and instructions fi*om Air Traffic Control to be applicable 

uniformly to all aircraft. 

U.S. V. Christiansen. 419 F.2d 1401, 1403 (9* Cir. 1969). (emphasis added) 

While it might be true that the FAA did not have a regulation, in 1966, 

that explicitly used the phrase "public aircraft", it is highly likely that the 

FAA had regulations in 1966 that regulated the operation "aircraft" without 

any qualifying or limiting language like "civil aircraft" or "public aircraft". 

Furthermore, whether years ago or currently, the implication of writing some 

rules that are limited to the operators of "civil aircraft", means that other 

rules that are not so limited also apply to "public aircraft" operations. Thus, 

a flight that has "public aircraft" status is only excused from the rules that ~ 

on their face ~ are solely directed to operators of "civil aircraft". Operators 

of public aircraft flights are not excused today (and were not excused in 

1966) from rules that apply to operators of "aircraft". Moreover, as 

previously discussed, today where the FAA explicitly use the phrase "public 

aircraft" in its safety rules, it does so to specifically excuse such operations 

from some, but not all, of the relevant regulations. See e.g. 14 CFR Sections 

133.1(c)(5), 137.11(c), and 137.29(d). 

Thus, the judge erred in concluding that the FAA lacks statutory 

authority to regulate public aircraft operations. Furthermore, to the extent 
16 

that the judge's decision can be read that the FAA cannot require an air 

carrier to track and count nonair carrier activities by its pilots, which could 

adversely fatigue its pilots, simply because that nonair carrier activity 

possibly was activity related to the operation of a public aircraft flight 

(wherein the pilot was paid for his services), the judge misconstrues the 

purpose of the safety regulations cited by the FAA. 

The purpose of the 135.63(a) rule cited against the Respondent and the 

purpose for the flight time limitations imposed on Respondent, as a part 135 

operator, are not to enhance the safety of "public aircraft" operations. 

Instead, those safety rules, which mandate the tracking and counting of 

"other commercial flying" are designed to enhance or maintain the safety of 

Respondent's part 135 operations and the part 121 and part 135 operations 

of other employers, that might use pilots like Mark Smith who are 

moonlight-pilot-employees for others. As the United States Court of 

Appeals for the Second Circuit recognized in construing the Federal 

Aviation Act of 1958 (most of which has been codified into Title 49 of the 

US Code), 

"The Administrator did not act unreasonable in placing greater 

limitations on ... pilots flying planes carrying large numbers of 

passengers who have no opportunity to select a pilot of their own choice. 

The Federal Aviation Act contemplates just such distinctions between 

regulations governing "air commerce" and those governing other air 

transportation." 
17 

Air Line Pilots Association v. Quesada, 276 F.2d 892 (2""^ Cir 1960). 

Thus, it was error for the judge to rule that the FAA has no jurisdiction 

over public aircraft operations and it was error for the judge to, in essence, 

rule that FAA air carrier safety rules cannot force air carriers to count toward 

the flight time limitations in part 135 that flight time accrued by their 

moonlighting pilots, for compensation or hire, as "other commercial flying". 

2. Judge Goodwin erred in finding that the LAPD aircraft were 

"public aircraft" in view of a misunderstanding of the law and in 

view of the absence of any evidence — on a flight by flight basis -

that Mark Smith's LAPD helicopter flights in February 2005 

were eligible for "public aircraft" status. 

Judge Goodwin seems to mistakenly believe that any and all police 

department aircraft are "public aircraft." In support of his decision he cites 

only one of two relevant statutory provisions dealing explicitly with "public 

aircraft" and he cites dicta in the Aero Spacelines decision by the Ninth 

Circuit. As previously discussed, the judge misconstrued the impact of that 

decision, as limited by the Ninth Circuit itself in the Christensen case. 

Moreover, in the decades since Aero Spacelines, Congress has amended the 

"public aircraft" statutory provisions a number of times. The judge's finding 

that all of the LAPD flights were "public aircraft" was is erroneous for 

several reasons. 
19 

operations undergo a flight by flight analysis to determine whether the 

purpose of the flight was "for commercial purposes" (if it is for "commercial 

purposes" then that flight operated by a governmental entity does not have 

public aircraft status) and whether the purpose of the flight was for some 

statutory governmental purpose (as set forth in 49 USC Section 40125 — in 

which case a noncommercial governmental flight would get "public aircraft" 

status).^ 

When the governor of a state was killed in an aircraft operation in the 

1990s and when, under the then existing law, it was determined that the 

aircraft had "public aircraft" status. Senator Larry Pressler introduced 

legislation to amend the law. See FAA Advisory Circular "Government 

Aircraft Operations" No. 00-1.1, dated April 19, 1995 which is available to 

everyone on the FAA website and which provides some of the legislative 

history concerning this mater. The state governor was killed was on an 

aircraft operated by his state and the flight's purpose was to transport the 

governor to a meeting. Senator Pressler did not like the idea that a 

government aircraft operation would -at the time and in those circumstances 

* This is not an exhaustive discussion of the exceptions to public aircraft status, including changes made to 

the law at the urging of the Department of Defense to make most troop transport charter operations by air 

carriers "civil aircraft" operations, where before such military charter operations had "public aircraft" 

status. 
18 

It appears that the judge erroneously believes that in order to correctly 

apply the law in order to make a "public aircraft" flnding, he had to look at 

the situation on an aircraft by aircraft basis to determine whether a 

Governmental entity operated a particular aircraft. Thus, it appears that the 

judge held that if a Governmental entity, here the LAPD, operates aircraft, 

then those aircraft are "public aircraft." This was error because under the 

current statutory provisions (and those that existed in 2005 when the 

violations at issue arose) dealing with public aircraft, many governmental 

aircraft operations are not eligible for "public aircraft" status. In other 

words, today (and in 2005) the inquiry on whether a situation is a "public 

aircraft" situation or a "civil aircraft" situation, does not turn solely on who 

(or what) operates the aircraft. Instead, the inquiry - very generally 

speaking - has three parts: First, is the Government (directly or in some 

instances by contract) conducting the aircraft operation? Second, is the 

aircraft operation "for commercial purposes" or not? And, third does that 

operation meet a "governmental fimction" purpose as outlined in 49 USC 

Section 40125? In other words, many governmental aircraft operations have 

"civil aircraft" status. The analysis is not whether the government owns the 

aircraft or whether the government operates the aircraft. The aircraft itself is 

not a "public aircraft". Instead, the law requires that government aircraft 
20 

- merely have a "public aircraft" level of safety. He wanted governmental 

aircraft operations to have "civil aircraft" status — even in noncommercial 

situations — unless the governmental aircraft operation was to accomplish a 

governmental ftmction. See generally 49 USC Section 40125 which is titled 

"Qualification for Public Aircraft Status" and see FAA Advisory Circular 

"Government Aircraft Operations" No. 00-1.1, dated April 19, 1995. 

The FAA's Advisory Circular 00-1.1 was issued in major part to explain 

the FAA's interpretation of the amendments that Senator Pressler and others 

made to the law regarding public aircraft by enactment of the Independent 

Safety Board Act Amendments of 1994 (P.L. 103-411). As the FAA 

explained it its advisory circular, the general purpose of the 1994 

amendments was to "extend FAA regulatory oversight to some government 

aircraft operations." Advisory Circular 00-1.1 at page 2. Significantly, the 

FAA stated that"... Congress determined that government-owned aircraft, 

which operate for commercial purposes or engage in the transport of 

passengers, should be subject to regulations applicable to civil aircraft." Id. 

(italics added to emphasize the point that if the LAPD helicopter operation 

' As has been discussed in more detail in the Complainant's argument concerning issue number 1, it should 

be noted that although a flight that has "public aircraft" status is not subject to many safety regulations — 

e.g., the pilot does not have to hold an FAA pilot certificate and the aircraft need not have an FAA 

airworthiness certificate — it is nonetheless subject to those FAA regulations that are addressed to the 

operators of "aircraft". In other words, while some FAA regulations are only du-ected to the operators of 

"civil aircraft" (e.g., 91.701, 91.7, 91.17) other FAA rules are directed to the operators of "aircraft" (e.g., 

91.13, 91.11, 91.111, 91.115, 91.119) and thus apply to all operators of aircraft regardless of whether a 

particular flight does or does not have public aircraft status. 
21 

was merely to transport the Chief of Police fi"om one point to another point 

for a meeting — and if that did not meet the "governmental fimction" 

analysis in the statute, then that flight would now (and since 1994) have 

"civil aircraft" status). 

For purposes of the legal issues on appeal here, the FAA advisory 

circular cited above provides the FAA's interpretation of the relevant 

statutory fi-amework. At the time of the 1994 amendments and at the time 

the advisory circular was published in 1995, the definition for "public 

aircraft" and the "governmental fimction" language were all contained in 

then Section 40102(a)(37) of Title 49 of the US Code. Since that time, 

Congress edited Title 49 in regard to the public aircraft provision (and added 

some other provisions, especially in regard to certain airline flights chartered 

by the DOD to carry soldiers to have "civil aircraft" status that are not 

relevant for this case) by moving the law about public aircraft into two 

sections of that Title of the US code, to wit: 49 USC sections 40102(a)(41) 

and 40125. 

In view of the FAA's own Advisory Circular interpreting statutory 

provisions. Judge Goodwin erred to the extent that he found that the LAPD 

flights by Mark Smith were "public aircraft" solely because they were 

conducted by a governmental entity (and not "for commercial purposes" as 
22 

that phrase has been interpreted over the years). In fact, the law requires a 

flight by flight analysis such that some flights by a governmental entity — 

even the LAPD — could have civil aircraft status if the purpose of the flight 

is simply to transport passengers (e.g., the Chief of Police or the Mayor) to a 

speaking engagement and the flight is not type of flight that would get 

"public aircraft" status under the examples listed as "governmental function" 

and as expounded upon by the FAA. ^ 

Furthermore, the record does not reflect that the judge had any 

evidence before him that the purpose for each of the LAPD flights 

conducted by Mark Smith met the "governmental function" test in 49 USC 

section 40125. The Respondent raised the "public aircraft" issue as an 

affirmative defense. The Respondent, therefore, should have presented 

evidence in support of his affirmative defense that such flights had public 

aircraft status under 49 USC section 40125. As the ALJ noted in footnote 5 

of his decision, the Complainant did not stipulate that Mark Smith's LAPD 

flights were "public aircraft." 

' It is important to note here that even before the 1994 statutory amendment, if a governmental entity 

operated its aircraft for a "commercial purpose" — even under the old statutory provisions dealing with 

"public aircraft"— such "commercial purposes" flights by governmental entities would not have public 

aircraft status, but would instead have "civil aircraft" status. Thus, to the extent that Judge Goodwin found 

that an aircraft operation's status as "public aircraft" or "civil aircraft" turns solely on whether a 

governmental entity operates the flight or not, he was mistaken under the current law and even under the 

pre-1994 law wherein "commercial purposes" flights by the government were considered "civil aircraft" 

operations. 
23 

Finally, if an aircraft operation had "public aircraft" status and if a 

pilot, like Mark Smith, was compensated for that flight by a public entity 

like the LAPD, then that flight was "other commercial flying". Since that 

flying would be "other commercial flying", air carriers are required to track 

and record that flight time under section 135.63(a)(4(vii). The inquiry does 

not turn on whether a flight had "civil aircraft" status or "public aircraft" 

status" in order for the flight to be considered "other commercial flying" as 

to the pilot. Instead, the inquiry turns on whether the pilot was a required 

pilot for the flight and whether the pilot was paid for his piloting services. 

3. A an air carrier must track and record flight time - as ''other 

commercial flying" ~ accumulated by any of its pilots when such 

flying is conducted for a police department (regardless of whether 

the particular flight is public aircraft or civil aircraft) and when 

the pilot is paid by the police department for such flight. 

The focus by Judge Goodwin on whether or not Mark Smith's flights, 

as a police officer/pilot, for the LAPD, were "public aircraft" created a redherring. It is true that the FAA has not issued any rules that limit the 

Federal, State or Local governments in to regard flight time for government 
24 

pilots who are conducting any part 91 operations for their 

government/employers (civil aircraft or public aircraft operations).' 

But this is a red-herring because the actual regulation promulgated by the 

FAA and cited by the Complainant in this matter was directed to the 

Respondent as a Part 135 operator. 

The FAA has the statutory authority to require those engaged in air 

commerce to consider, evaluate, track and deal with things that occur, for 

example, outside of the aviation environment because those things could 

adversely affect aviation safety later. Consequently, the FAA tests for the 

presence of certain illicit drugs in safety sensitive personnel. Evidence of 

the presence of such drugs, even if ingested hours, days or weeks ago, is a 

basis for preventing that person firom engaging in safety sensitive air carrier 

work until it can be demonstrated that the person has not suffered adverse 

effects fi*om such drug use. Similarly, in the area of anti-fatigue rules for 

pilots, the FAA has issued safety rules that limit the daily, quarterly and 

annual on-demand part 135 flight time that any one air carrier pilot can 

' However, it should be kept in mind that if a State or Local government 

conducts a common carriage operation in which it carries the people or 

property of another for compensation or hire, such operations are governed 

by parts 119 and 135 or 121. Consequently, such operations are directly 

subject to part 121 and part 135 flight time limitations for the benefit of the 

revenue passengers and revenue cargo. For example, some States engage in 

compensation or hire air ambulance operations. Such operations are subject 

to part 119 and parts 135 or 121. 
25 

perform for the on-demand air carrier. Included in the "flight time" 

limitations calculations is that flight time that is classified as "other 

commercial flying". Part 135/121 flying plus "other commercial flying" 

counts toward the daily, quarterly and annual flight time limits imposed on 

part 135 on-demand air carriers. See 14 CFR Section 135.267(a) and (b). 

That "other commercial flying" could be part 91 ferry or positioning 

flights that the pilot performs for the air carrier when no revenue passengers 

or cargo are on board. Such other commercial flying when done, for 

example, at the beginning of the air carrier pilot's duty day, counts toward 

the daily flight time limits. See FAA Interpretation 1993-9, Federal 

Aviation Decisions (Clark, Boardman, Callaghan 1993). It counts toward 

the daily limits because the agency wants to avoid or reduce the dangers of 

fatigue that might develop later in the pilot's duty day when revenue 

passengers or cargo are on board the aircraft being operated under parts 121 

or 135. 

Similarly, "other commercial flying" includes any nonmilitary flying 

(other than air transportation) that the pilot performs as a required flight 

crewmember and for which he or she is paid for her piloting services. See 

FAA Interpretation 1991-45, Answer to Issue #3, Federal Aviation 

Decisions ( Clark, Boardman, Callaghan, 1991). Thus, if a pilot moonlights 
26 

by flying a corporate aircraft operating under part 91, that flying is 

considered "other commercial flying" as to the pilot when that pilot is a 

required flight crewmember and when that pilot is compensated for the 

piloting services. 

Thus, the judge erred in finding that Mark Smith's LAPD flying was not 

subject to being counted by the Respondent, a part 135 operator, for 

purposes of complying with section 135.63. The purpose for the 

recordkeeping rule cited in this case and the purpose for the underlying 

flight time limitations in part 135 is to reduce the chances of flight time 

fatigue in the Respondent's part 135 operations when it used Mark Smith. 

In issuing flight time limitations, that included "other commercial flying", 

the FAA undoubtedly was concerned that a nonpart 119 employer or even a 

part 119 employer (e.g., a part 119 employer using its pilots at the beginning 

of the day or the middle of the day for "ferry" flight or positioning flights) 

and possibly the pilot himself would put private economic gain or flnancial 

considerations over the potential dangerous consequences of a lot of "other 

commercial flying"). Thus, the FAA requires part 135 operators to track and 

count (for purposes of part 135 flight time limits) other commercial flying 

conducted by its pilots. See e.g., South Aero, FAA Order No. 96-4 

(February 13, 1996), p.7. 
27 

4. The ALJ erred in reducing the civil penalty amount. 

The ALJ reduced the amount of the civil penalty because he did not find 

that the regulations were violated in regard to the failure by Respondent to 

track and record Mark Smith's LAPD flights as "other commercial flying". 

He also stated that he believed that the FAA had allowed the Respondent to 

ignore such LAPD flights as other commercial flying earlier. 

The Complainant believes that the judge erred in regard to the "public 

aircraft" red-herring and that this error caused him to mistakenly conclude 

that Respondent did not violate section 135.63(a) regarding Mark Smith's 

LAPD flying. If the Decisionmaker agrees that the Respondent violated 

section 135.63(a) for failing to track and record Mark Smith's LAPD flying 

as "other commercial flying" for purposes of adhering to part 135 "flight 

time" limitation provisions, then Complainant submits that the civil penalty 

amount should be more than the $5000 amount set by the judge. In view of 

the judge's findings regarding sanction and in view of the totality of the 

circumstances, the Complainant submits that a $20,000 civil penalty for all 

the violations found should be imposed by the Decisionmaker. 

Conclusion 

In view of the foregoing, the Complainant respectfiilly requests that the 

Administrator find that Respondent violated the section 135.63(a)(4)(vii) by 
28 

failing to track and count Mark Smith's LAPD flights as "other commercial 

flying" for purposes of keeping records in sufficient detail to determine 

whether Mr. Smith's flight time under part 135, and his other commercial 

flying, would or would not exceed the flight time limitations in section 

135.267. Moreover, the Complainant requests that the Administrator reverse 

the judge's findings regarding "public aircraft" and requests that the 

Administrator find that he has the statutory authority to regulate "public 

aircraft" operations, that the FAA has rules in place that regulate aircraft 

operations, including public aircraft operations, and that even in Mr. Smiths 

LAPD flights were "public aircraft' in nature — they nonetheless are "other 

commercial flying" and should have been tracked and counted by 

Respondent. Finally, the Complainant requests that if the Decisionmaker 

grants this appeal, that the Decisionmaker impose a civil penalty of $20,000. 

Respectfiilly submitted, 

Joseph A. Conte 

tManager, Air Carrier and Operations Law 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

Washington, DC 20591 

202 267 7381 

Counsel for Complainant 
29 

Certificate of Service 

I hereby certify that on this date I placed in the United States Mail, 

postage prepaid, the original of the attached document (Complainant's 

Appeal Brief) and 2 copies, addressed to: 

Federal Aviation Administration, 

800 Independence Avenue, SW 

Washington DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building — Suite 2W1000 

And a copy sent by fax and by United States Mail, postage prepaid, a true 

copy addressed to 

Arthur Wasserman, Esq. 

Wasserman & Miller 

16380 Roscoe Blvd., Suite 120 

VanNuys,CA 91406-1221 

Fax: 808 895 0675 

Dated: March 16,2010 

Donna M. Davis