02/21/2013 05:4g 4252271007**ANI~7**



### FACSIMILE MESSAGE FEDER<\L AVIATION ADMINISTRATION OF.FlCE OF REGIONAL COUNSE.L 

### ANM-7 1601 LIND AVENUE 

### S.W. RENTON, WASIDNGTON 98057 PAGE 01/14



### The information contained inthis facsimile message .is legally privileged and confidential information and is intended only for the use ofthe individual namedon this cover sheet. Ifthe reader ofthis message is notthe intended recipient, you arc hereby notifiedthat any use, dissemination, distribution, or copy ofthis facsimile is strictly prohibited. Ifyou have received this facsimile in error, please immediately notify us by telephone at 425-227-2007'



### DATE: 

### TO: FAX NO.: PHONE NO.:



## RE: February 21, 2013 Hearing Docket Clerk 

## 202-493-5020

Mountain Aviation, Inc FAA No. 201J.NM030039 DMS No. FAA-2012-0875 

### Complainant's Brief. NO. PAGES: FROM: FAX NO.: PHONE NO.: EMAIL: 

## 14 including cover 

## Kyle Lomazow. 425-227-1007 425-227-1847 Kyle.lomazow@faa.gov02/21/2013 05:49 4252271007 ANM7

1 Kyle E. Lomazow 2 FAA Offi.ce ofRegional Counsel 3 160

### l Lind Ave., SW 4 Renton, Washington 98057 s Telephone: (425) 227-1847 6 

### Facsimile: (425) 227-1007 7 .6

9 10 ll 12 

### UNITED STATES OF AMERICA FEDERAL AVIATION ADMINISTRATION OFFICE OFHEARINGS

WASHINGTON, D.C. 13 14 15 l6 In the Matter of 17 

### 1s MOUNTAIN AVIATION, INC. 19 20 ;a 22 23 24 25 26 27 28 DMS NO. FAA-20 12-0875 FAA Case No. 2011NM030039 COMPLA.INANT'S BRIEF



### PROCEDURAL SUMMARY

OnAugust 16, 2012, Complainant issued a Complaintto which Respondent filed an PAGE 02/14

29 30 3l. 32 33 34 35 Answer. 1 

### Inits Answer Respondent admitted to Section I oftbe Complaint; Section II, paragraphs l, 2, 3, and 4. 2 Respondent denied the allegations in Secti.on 

### IT, paragraphs 5, 6, and 7 andthe

36 37 38 39 4.0 allegations in Section

### ill, paragraphs 1, 2 and 3 ofthe Complaint.3 OnNovember 7, 2012 the hearing 

### in thismatterwas held in Denver, Colorado.

4l 42 43 44 45 46 47 48 49 so 1See Complaint and Answer. s 1 1 Complaint II.! and Answer s 2 ' Complaint Section II and III and Answer 53 CoMPLArnANT'S H£.\R!NG BRIE.F MOUNTAIN AVIATION- FDMSNo FAA-2012-0875l'AA CASE No. 2011NM030039 Pnge) ofl3 /C;YLF- B-
..l
..QMAZOW, FAA ATTORNEY

TEL: (425)227-1847.: l'AX: (425)227·1 00702/21/2013 05:49 4252271007 ANM7 PAGE 03/14

). 2 3 4 5 6 7 8 9 

### STATEMENT OF FACTS Mountain Aviation (Mo\Ultain) isthe holder ofAi.r Carrier CertificateNo. VQMA053W
and conducts 

### its operations under Part 135 ofthe Federal Aviation Regulations. 4 

### On
J.o December 16, 2010, Mountain directed Rodney Getty to administerthree flight checks to 11 12 13 14 15 16 17 18 ).9 20 21 22 23 24 ?.5 26 27 26 

### John A. Kuzenski. 5 

### On December 21, 2010, Mountain directed Rodney Getty to administer a flight check to Stephanie 

### A. Wells. 6 

### OnDecember 26,2010, Rodney Getty administered two flight checks to Jeremy 

### L. Sumpter.7

### Mountain used Rodney Getty to administerthese flight
checks when he had not satisfactorily conducted a proficiency or competency checkunder the
observatioll ofa Federal Aviation (FAA) inspector or an Aircrcw DesignatedExaminer (ADE) employed by Mountainwithinthe preceding 24 calendar months as requiredby Title 14, Code of
Federal Regulations (C.F.R.) 135.339(a)(2).8 

### Mountain failed to verify Mr. Getty's qualifications

29 

### and training records when. 

### it assigned him to perform the above-listed flight checks. 30 31 32 33 

# ,. Additionally, Mountain operated as a d)l:ect air carrierfor compensation or hire without keeping

35 36 37 

### at its principle place ofbusiness records showing thatRodney Getty has completed the required training under 14 C.F.R. in order to administer flight checks. 9

33 39 40 41 42 

### Complainthas allegedthat Motmtain violated the following regulations under 14 C.F.R,
all ofwhich were denied by 

### Respondent in 

### its Answer:**~,** 44 45 46 

### a. Section !35.63(a)(4)(vi), Jn that Mountain failed to keep at its principal business office a record ofa pilot used in operations under Part l35 that coJJtal.ned the date and

47 4 Complaint Section .U.l and Answer 48 5 Comp1aint1 Section 11.2 and Answer 49 6 Complaint, Section 11.3 and Answer so 7 Co))lp\aint, Sect\on 11.4 aD.d Answer 51 'Complaint, Section U.S an.d denied in Answer 52 9 Complaint,, Section TJ.7 and denied in Answer: 53 COM'M..ATNANi'S Hl!AR.INC B:RtEJl KYLE E. LOMAZOW, F AAATTORNEY MoUNTAIN AVlATION- FDMS No FAA-2012-0875 FAA C'-SENO. 2011NM030039 Page2 of 13 "tEL: (425)227·1847; FAX: (425)227·100702/21/2013 05:49 4252271007 PAGE 04/14

1 2 3 4 5 6 7 8 9 10 11 12 l3 H 15 16 17 18 19 20 21 22 2> 24 25 26 27 28 29 30 

# " :\2 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 result ofeach ofthe initial and recurrent competency tests and proficiency androute checks required 

### by 14 C.F.R 

### Part 135,
b. Section 135.95(b), 

### in. that Mountain used the services ofan airmanwho was not qualified for the operationfor which the airman was used.



### c. Section 135.339(a)(2), 

### .in tb.at Mountainused 

### a person 

### as a check airman whenthat person had not satisfactorily conducted a proficiency or competency under the observation ofa Federal Aviation Administration inspector or an Aircrew Designated Examiner employed by Mmmtain within the precedi!lg 24 calendarmonths. 10

I. ARGUMENT MOUNTAIN AVIATION USER AN UNQUALIFIED CHECK AIRMAN TO ADMINISTER FLIGHT CHECKS Aviation Safety Inspector (ASJ) Chri.stopher Lang testified that during routine $Utveillance ofMountain'straining records and check airman records he discoveredthat Rodney Gettyhad notundergonethe required observation by the FAA on a biannual basis. 11 As ASI Lang testified, Mr. Getty underwent the required C.F.R. 1. 35.339(a)(2) observation on August 13, 2008 and his next 135.339(a)(2) observation was due no later than September 30, :2010, 12 Mx. 

### Getty failed to undergo tius required observationby September 30, 2010 and Mountain never submitted proofto ASI Lang

### that he had undergone the required obsentation by an. FAA inspector or ADE
The September 30,2010 date on which Mr. Getty's 135.339(a)(2) observational check

was due came and went, yet Mr. Getty continued to give flight checks to Mountain's pilots. On
December 16, 2010, Mr. Getty gave multiple flight checks to airmanJohn A. Kuzneski , 13 on

49 10 Complaint, Section Ill and deniedin Answer, so 11 Tr, at 21, lines 15-19, 5J. " Tr- at :22, lines 5·20, Tr, at ?-3, lines 1-18. 52 "Tr. at 25, lines 6-22, Tr. at 26, lines 1-6, &hibit C-2, 53**CoM:PT~AJNANTjs** HE-ARING BRmF MOUNTAIN AVlATlON**~** FDMS NO FAA.-201 2-0875 FAA CASE No. Z011NM030039 ?age 3 of !3 TEJ-; (42S)Z27-1847; FAX: (425)227-100702/21/2013 05:49 4252271007 ANM7 PAGE 05/14

1 December 21, 2010, Mr. Getty gave one flight check to airman Stephanie A. Wells 14 and on 2 

# , 4 5 December 26, 2010,

### M:r. Getty gave multiple flight checks to airman Jeremy 

### L. Sumpter.15 All of

6 these flight checks were conductedwhen

### Mr. Getty was not legally able to perform flight checkS, 7 8 due 

### to the fact thathe hadnot received the required observation under C.P.R. l35.339(a)(2). On 9 10 ll 12 13 14 15 16 17 18 19 20 21 22 

### n 24 25 26 27 28 29 3D 3l 32 33 34 35 36 37 36 39 January 18, 20 I 1, Jeremy Sumpter acted as second 

### incommand (SIC) ofa Part 135 flight on behalfofMountain when he was not qualifiedto act as SIC due to the fact that he had received a flight check from Mr. Getty, who atthe time was an unqualified check ainnan. 16
Mountain never presented documents tci ASI Lang that Mr. Getty bad received a C.F.R. 135.339(a)(2) observation by an FAA inspector or Aircrew Designated Examiner (ADE) beyond
his last observation

### by an FAA inspector on August l3, 2008. Mountain has argued in defei)Se
that they did, in fact, employ an AD

### E. The FAA

### will address this argumentbelow. 

### II. tv!OUNTAJN HAS NEVER EMPLOYED AN AIR CREW DESIGNATED 

### EXAMINER
Mountain argued at the hearing that one oftheir own check airman, Or<>n Taft, was designated an ADE 

### by Al Hankins, their Principle Operations Inspector, butthey did notproduce
any evidence showing that they ever applied for or employed an ADB. More importantly,
Mountain admitted they were never advised 

### by the FAA that they employed an AD

### E. A review

40 ofthe cross-examination testimony oftheir ChiefPilot, Gary Emerson, ;eveals how weak 41 Mountain's defense is: 42 43 44 45 46 47 Q: Does MountainAviation Employ anAircrcw Designated Examiner. 

### A· Yes

48**;,~** so "Tr. at27, lines 3-21, Tr. at28, lines 1-7, ExhibitC-3. 51 15 Tr. at 28, Jines l.\·:22, Tr. at 29, lines 1·17, Exbibit C-4. 52 "Tr. at 30, lines 2-22, Exhibit C-5. 53 Co'MPLAIN.ANT'S HnAR.mG BRTE.F MOUNTAW AVIATION- PDMSNoFAA·2012·0875 FAA CAsBNo. 20lll'iM030039 Page 4 of 13 KYLE'& ;LQMAI';OW. FAA ATIOR}i'EY

TEL: (425)227-184-7; FAX. (425)227-100702/21/2013 05:49 4252271007 PAGE 05/14**~** 2 3 4 5 6 7 8 9 10 ll l2 l:l l4**~5** 16**~7** 18 l9 20 

### Q. Andwhen did you start believingthat Mountain Aviation employed an Aircrew Designated Examiner? A: When 

### 1had the conversation with 

### Mr. Hankins and 

### I read

### this and gotthe direction to continue checking, the Aircrew DesignatedExaminer 

### fit in the context ofthe conversation 

### we had. 17 ·


### However, 

### lvir. Emerson admitted that during his telephone conversationwith AI Hankins that he

never asked AI Hankins ifMountain actually did employ 

### an r\DE and that the topic never came
up inthe conversation. 18 

### Instead, 

### Mr. Emersontestified, "as 

### I previously stated, afterihat
conversation

### I went 

### and looked at the LOAs andreread l35.339(a)(2) and logically concluded
that was in

### the context ofthe conversation." 19 

### The cross examination continued withtbe

21. 

### following exchange: 22 23 24 25 26 27 28 29 30 

### :n 32 33 34 35 36 37 :OS 39 40 4·1 42 43 44 45 

### Q: You concluded based on your own thought process? A: 

### No. I 

### concluded thatbased on what Al Hankins told me. Q: Okay. Butyou never calledup AI Hankins and said, 'by the way, 

### 1want to make sure 

### I have this right; 

### I believe we have an Aircrew Designated Examiner; is that what you meantry' Younever had this

. 'th

### him, 20 

### conversatwn WI • 

### A: The question wasn't aboutthe Aircrew Designated Exru:ni11er. He had toldme to continue checking. So I had no reasonto have that conversation with him.

Mr. Emerson'stestimony falls apmt. On one hand he argues that based onhis conversationwith
Al Hankins he determined that Mountain employed an ADE, but when pressed as to why he
didn't confi.rm this withAl Hankins Mr. Emerson responds thattheir conversationwas not about
the ADE program. This is a circular argument and exposes the fact tllat Mountain had no

46 

### legitimate basis for concluding on their own thatthey employed ru.1 ADE. Mountainnever 47 48 49 so 17 Tr. at 139, lines ll-21 Sl. "Tr. at 140, lines 4-8, 52 "Tr- at 140, lines IZ-20. 53 CoMPLAINANT's 1-!:M.R.tNo BRII!'F MoTJ«TAlNAVIATION- FDMS NoFAA-2012-0875 FAA CASE NO. 2011NM030039 Page 5 ofl} KYLe; E. LOMA.ZOW, FA.A. ATTORNEY

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1 

### applied for an ADE program, never saw any certificates indicating their check airman were 2 3 4 5 6 7 

### A DEs and the FAA never advised Mountainthatthey did, infact, employ an ADE. 21 

### Expert witness Peter Popp testifiedthat the process for acquiring an. ADE Program has

s many requirements and would take anywhere from six months to two years to complete?" 9 w n 12

14 1'; l. 6 17 18 ),9 2Q 2). 22 23 24 25 26 

### Mountain argued that the language "all checks" in theLetter ofAuthorizationthey received from
Al HwJkins somehow conferred ADE status uponthem, but as Inspector Popp testi.fied, the language "all checks" does not confer ADE status, but simply allows for proficiency checks in a simulator, proficiency checking in an aircrafi, or line checking i.n an aircraft.21


### The last witness Mountain called on its behalfwas 

### Mr. Richy Allen Bjelkevig, the
President andDirector ofOperations ofMountain. Mr. Bjelkevig testifiedthat a meeting with 

### FAA inspectorstookplace after this enforcement action was instituted, and admitted that none of



### n the inspectors present advised Mountainthat they employed an ADE. 28 29 30 31 32 33 

### Mountain's conclusion that they employedan ADE simply has no basis in reality. It


### would be no different 

### ifa patrol offi.cer decided one day that he had made detective without

34 

### applying for detective status, taking any tests to become a detective or evenbeing notified that he 35 36 37 36 39 40**~1,** 42 43 44 45 

### was being promoted to detective. In short, it was simply notreasonable for Mountain to assume they employed an ADE without taking any stepsto confi.un. this behef. Air carriers are heldto a high standardin orderto ensurethe safety ofthe traveling public. In the s:llXIe m.anner that pilots

are prohibited from simply making assnmptions about the weather, air carriers cannot be allowed

46 

### to make assumptions about the regulatory status oftheir aircrew. Mountain's argument thatthey 47 4S 49 so 20 Tr. at 140, lines 12-24, Tr. at 141m lines 1-13. 51 '' Tr at 142, lines 6-7, Tr. at 144, lines 3-4 52 22 Tr. at 87, Jines :2-:22, ir. at 88, lines 1-22, Tr. at 89, Hneo 1-7, E.xl:liblt C-11 53 COJ\.lPLAINANT'S HEARJNQ**B~TEF** MolJNTAlNAVJAT!ON-FDMS No FM-2012-0875FAA CASENO. 2011 NM030039 Page 6 of 13 iCYL'E. E. 10MAZOW, FAA ATTORNSY

TEL: (425)2;17-1847; FAX: (425)227-100702/21!2013 05:49 4252271007 ANH7 PAGE 08!14**~** "logically concluded on their OVv'!l" thatthey employed an ADE falls far below

### th:: standard of

3 4 5 6 7 

### e 9 J. 0 ll D 13 14 15 16 17 18 l9 20 2l 22 23 24 25 26 27 26 29 30 3l 32 33 34 35 36 37 38 39 what is to be expected from a reasonable, diligent aircarrier.

III. 

### THE PROPOSED SANCTION lS SUPPORTED BY THE 

### FACTS AND THE ADMINISTRATOR'S SANCTION GUIDANCE SET FOURTH IN FAA ORDER 2150.3B. The Administrator 

### has provided publishedpolicy guidance for 

### Agency employees to
follow when determining an appropriate civil penalty for a given case?4 This guidauce is
contained in 

### FAA Order 

### 2150.3B, in particular Chapter 

### 7 and Appendix 

### B. The guidelines aid Complainant'spenalty detennination through a Sanction Guidance Matrix. The Matrix sets out specific penalty ranges for eachtype ofviolation and provides a range within whichan appropriate sanction should be sought. Complainant's sanction determination nevertheless does

not merely reflect 

### afJXed mathematical oomputatio11 

### but considers a multitude offactors setforth
in Chapter 7, paragraph 4. Using these factors, the Complainant adjusts the sanctioJ:l either upward or downward from middle ofthe recommended sanction range?5 The Complainanthas
identified thirteen 

### (13) factors to considerwhen determining the appropriate sanction for the
violations associated withthis case?6 In

### Folsom'sAirService

.. Jnc:, FAA OrderNo 

### 2008-11

4.o "Tr. at.89,1ines 16-22, Tr. at 90, lines 1-8. 41 " IfRespondent attempts to claim fuat some other sanction .is appropnate iXI this case, k is weU-sett1ed that the FAA's 4 

### z determination to institute a civilpenalty proceeding ratherthan employing some lesser fonn ofsanction (s11ch as a 4 3 letter ofcorrection) is amatter committedto the Agency's sound discretion. See In the matler ofOff Shore Air, FAA 44 Order 2002-7, 2002 \VL 1042304 (April 15, 2002)illld In the matter a/Wyatt, FAA Order 92"73, 1992 WL 733220 <IS (Dec. :Ll, 199:2-). See also In the mat:ler of Boston-Maine Airways, FAA No. CP08S00002, 2008 WJ.. 3485801. 46 (AugustS, 2008)(initialdecision), 47 25 !be guidance provides that the middle ofeach recommended sanction range is where one begins for a single 4S violation without aggravating or mitigating factors. FAA Order 2150.3B, app. B, para. 3(o) 

### fil. B-2] 49 26 Those factors are: 50 a. NatureoftheviolatioD;**s~** b. '\Vhetber tbe vio1atlon was inadvertent and not deHberate; 52 c. The certificate holder's level ofexperience; 53 CO}..tt>i..AJNANT'S H!.AR.'INO Bltlm' MoumAJN A viAnoN- FDMSNoFAA-2012-0875 FAA CASENo. 2011NM030039 Page 7 of ll ICYT...:E E.. T-O"M"A?..OW, FA.A.. ATTO.'RNZ'Y

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l 2 3 4 5 (November 6, 2008), the Administratorheld thatFAA Order reflects the Adminlstr:ator's general
views about the civi.l penalty ranges that ar:e appropriate for differenttypes ofviolations. In short,

6 a civil penalty must reflect the totality of

### the circumstances surrounding the violations.

### Folsom's, 7 8 9 10 11 12 13 14 ).5 ).6 17 lB 19 20 2:L 22 23 24 25 26 27 2B 29 30 3'- 32 33**3~** 35 36 '!7 38 39 40 u 42 43 44 45 46 47 48 49 so 51 52 53 The 

### ALJ is bound to follow Agency guidance and the Administrator has assertedthe
power to impose the agency's sanction policy on appeal if

### an ALJ assesses 

### a civil penalty that 

### is

not consistent withthe policy. 

### See In the matter ofWarbelow'sAir Ventures, Inc., FAA Order
No. 2000-3 

### (February 3, 2000), at 20; 

### In the matter of.NorthwestAirlines, FAA Order No. 1990- 

### 37 (November 

### 7, 1990), at 8"10.
Fromthe outset, the Complainant acknowledges that 

### ithas the burden tojustifY the amount of
civilpenalty it seeks. 

### In the Matter of Luxemburg, FAA Order 1994---18 (June 22, 1994). However, itis also well established that ''[aJn administrative agency is entitled to substantial
deference in assessing the civil penalty appropriate for a violation ofits regulations. Th.e Agency's choice ofa sanction is notto be overturned unless it is unwarranted in law or without justUidtionin fact." 

### NL Industries, Inc. v. Dept. ofTransportation, 901 F.2d 141, 144 (D.C. Cir,

d. The attitude ofthe violator; e. The degree ofhawrd; f_ Whether there was action taken by the employcror other authOrity for against the employee that committed the violation(s); g. Use ofthe certificate; h. Violation history; L Decisionallaw; j_ Ability to absorb the sanction; k. Consistency ofSanction; l. Whether the violation was Reported Voluntarily; and, m, Corrective Action.

Co:MPLAINANT's**H~AIUNG** BRrEF MOUNTAIN AVIATIDN-FDMSNo FAA-2012·0P5 FAA CASE NO. 2011NM030039 Page 8 of13 KYLE E. J
...OMAZOW, PA.l'l:. ATIORNE'l

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1 

### 1990),27

### In this case, the sanction is not only appropriate butfully supported under the 2 3 4 5 6 7 

### Administrator's sanction guidance." 8 

### By statute- Title 49, Section4470l(d)(l)(A), Air carriers are held to a high duty ofcare.

s Indeed, they are obligatedto performtheir services with "the highestpossible standard ofcare."
10 l;l 12 13 14 15 16 17 lB 19 20 ?.1 22 23 24 :15 26 27 23 29 30 31 3Z 33 34 35 36 37 38 39 40 41 42 

### See, e.g., Folsom's,**~** 

### p. 16. This degree ofcare devolves from the carriers' responsibility to

assure.• to the maximum extent possible, the safety and well-being of

### its passengers, crew, and
others involved in transportation by air. The Administrator has made it clear that "[c]ertificate
holders with a greater level ofexperience may be held to a higher standard.';z9


### For sanction purposes, the Administrator has identified what an appropriate sanction
would be for eachtype ofviolation alleged in thi.s case. Mountain is considered a Class III business concern under the sanction guidance aud is liable for a sanction ofup to $11,000 per violation. Beginning at the mid-range, prior to any further evaluation, the initial sanctionwould
be $7,150 per violation. Here, Mountainv:iolated CFR 135.339(a)(2) three times and has two other violations for a. total of5 altogether, which equals a total of$3 5,750. The sanction sought
inthis case is $21,450, which is a significant downward deviation.
Ifthe five regulatory violations were considered as being boundtogether for sanction
purposes, $7,150 per violation would equal $21,450, which is the sanctio.n**Co~plainant** 

### is in fact

43 27 "[T]here is precedent indicating that unless there are factorsjustifying the reduction ofan otherwise reasonable 44 civil penalty, Complainant's u•e ofthe sanction guidance to determine the appropriate ci.vil penalty shouldnot be 45 disturbed." In the Marter of Blue RidgeAirlines, FAA OrderNo. 99-15, 1999 \IlL 1279832 (Dec. 22, 1999) citing 46 Tran.' WorldAirlines, Inc., FAA Order No. 98"11, at 2,1**(.T~>ne** 16, 1988). AccordFAA v. Don BessetteAviation, 47 2006 WL 1624325, at 5, 7 (initial decision ofJudge GoodWin).**~.s** "'"When sanction is an issue, the lawjudge is expectedto give a reasoned explanation ofthe amount ofthe civil 49 penalty selected, whether ornot the penalty is reduced. The Administrative Procedure Act requires articulation ofthe 5o lawjudge's sanction decision." ln the Matter of Toyota Motor Sales, lnc., FAA Order No. 94-24, 1994 WL 89966 51 (Sept. 30, 1994)(citingto 5 U.S.C. §557(c)). 52 29FAA Order 2150.3B, cbap. 4, para. 4(c)(l)[p. 7-5] 53 COMl'LAINANT'SIJR'JUNG BRIEF MOUNTAIN AV!ATION-FDMSNo FAA-2012-0875 FAA CASENO. 2011NM030039 Poge 9 of\3 KY1...:t;.p_ J.OMAZOW. FAAATTORNEY

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1 seeking. Mountain presented no evidence either before or at the bearing that warrants a

3 4 5 6 7 do'Ntlward deviation from the Administrator's sanction guidance. Any sanctionbelow the proposed sanctionwould not provide a sufficient deterrent. In their response to the Letter of

s Investigation, Mountain indicated that Mr. Getty was immediately suspended, thatMountain
10 ll 12 13 14 conducted an external audit to ensure all their check airmanwere qualified and that they had grounded Mr. Sumpter until he could berechecked by another check airman. 30 However,

15 Mountain never offered any evidence or testimony indicatingthat they had instituted any new 16 17 18 l. 9 20 21 22 23 :<4 45 2<:: 27 28 29 30 31 32 33 34 35 36 37 38 39 40 procedure or protocols to ensure they do not losetrack ofthe qualification status oftheir check
ainuen .in the future.
Inconclusion., the Agency is in the best positionto determine what sanction should be imposed for a given violation and absent a finding thatthe Administrator is acting arbitrarily or capriciously, the ALJ should give deference to the sanction proposed by the Agency, particularly
when the sanction proposed is at the lower end ofthe sanction guidance.

CONCLUSION
Mountain failed to present any evidence thatRodney Getty was qualified to give the
above-mentioned flight checks. ThoughMountain attempted to argue thatthey employed an

41 ADE, their ChiefPilot at the time and President ofthe Company readily admitted that no one 42 -:1,:; 44 from the FAA ever advised Mountainthat they djd in fact employ one. As ChiefPilot Gary 45 46 Emerson testified, he came to the conclusionthat MoW1tain employed an ADE on bis own 47 4 8 without any guidance though 

### he knew full wellthat MoW1tain had never applied for an ADE 49 50 5 J, s 2 " See Bxhibit 7. 53 CoMYLAJNANT's HEARJNG BRTEF MoUNTArN AvtADON-FDMS NoFAA-20l2-087SFAA CASE NO. 201JNM030039 Page 10ofl3**"KV1.~_:r;,** LOlvlAZOW, FAAA':r'tORNBY

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### ·). program or had ever been toldby the FAA that they had such a program. Furthermore, Mmmtain

?. 3 4 5 6 7 8 9 10 n**~.2** 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27
29 30 31 32 33 34 35 36 37 38 :)9 40 41 42 43 41 45 46 47 48 49 so Sl 52 53 

### presented no evidence at the hearing 

### inthe form ofapplications, certificates, licenses, etc., that they ever applied for or employed an AD.E.
The reasonthat Mountain was not able to do so is very simple:. They have never applied .for nor employed an ADE. Mountain cannot argue that they were not aware ofthe requireme:ots ofCFR 135.339(a)(2) considering Mr. Getty underwent a valid observationby an FAA inspector
in August of2008. However, Mountain failed to ensure that Mr. Gettyreceived a follow-up observation by September of20)0 andbecausethey failed to keep track ofMr. Getty's status Mountain used an unqualified airman to perform mnltlple flight checks.
The Complainanttherefore has proven the following violations for the reasons stated
above andbelow: Section 135.63{a){4)(vi): 

### Mountain never produced any records during ASI Lang'siniti.al inspection or at the hearing showing that Rodney Getty hadrec6ved the required 135.339(a)(2) check. These documents do not exist because 

### :M:r. Getty never received the proper observation check and therefore Complainant has pmven this allegation.
Section 135.95(b) 

### Mountain. Avi.ation used Jeremy Sumpter as a SIC on a Part 135 flight when Mr. Sumpter had previously been given a flight check by an unqualified check ai.rman. Therefore, Complainanthas proven thls violation.

CoMPLA.lNANT'S HEARING Bl'..ffir MoUNTAIN AV1ATION-FDMS NoFAA·2012-0S75 FAA CASE NO. 2011NM03Q039 Page JJ oflJ KYlE E.. LOMAZOW. FAA. ATTORNEY

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l 2 3 4 5 6 7 8 9 10 n 12 l3 l4 ,,5 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 

### Section135.339(a)(2) 

### This violation is the heart ofthe case and for the many reasons indicated above Mountain has failed to present any evidence that Rodn.ey Getty was ever given tl1e 

### appropriate observation by an FAA 

### employee or Aircrew Designated Examiner. Mor<:"over, Mountain failed to present any evidence at all that employed au Aircrew Designated Examiner at

### the time.



### .As Complainant has satisfied the burden ofproofby 

### apreponderan.ce ofthe evidence, we ask thata 

### verdict be 

### entered finding respondent Hable for the 

### above-mentioned violations and san.ction.

RESPECTFULLY SUE.MITrED this 21st day ofFebruary 2013.

/

34.**K~Lomazow** 3

### s FA.A 

### Attorney 36 37 36 :"l9 40 41 42 43 44 45 46 47 46 49 50 5). 52 53 COt.1PLi\TNANT'.r; Hf!..I\,"RTN(} BR'IEF MOUNTA.!N AVIATION- FDMSNo FAA"2012-0875 F !v\ CAsENo. Z011NM030039 .?age 12 of 13 TEL: (425)227-1847; fAX: (425)227·100702/21/2013 05:49

1 2 3 4252271007 ANM7



### CERTIFICATE OF SERVICE

4 I hereby certifY thatthe foregoing Complainmt's Brief, has been servedvia Facsimile and s Certified Mail this date, to the following: 6 7 B**~** l,Q

. ll

12 13 14 15 16 17 lB**1~** 20 21 22 23 24 2S 26 27 2B 29 30 31 32 33 34 :JS 36 37 38 39 40 4;L 12 43 44 <S 46 47 4.8 49 

### so 51 52 $3 \he Honorable Richard C. Goodwin Office 

### ofhearings, M-20 1200 New Jersey Avenue, S.E. East Building Ground Floor, Rm EJ2-320 Washington, D.C. 20590 FAX: (202) 366-7536

Federal Aviation Admiu.i.stration Attn: Hearing Docket Clerk, AGC-430 800 Independence Ave SW Wilbur Wright Bldg.- Suite 2Wl000 Washington, D.C. 20591 FAX: (202) 493-5142 KentS. Jackson, Esq. Attorney for Respondent Jackson & Wade, LLC 2168 Midland Drive Shavmce, KS 66218 

### TEL: (913) 338-1700 FAX: (612) 977-8650

Datedthis 21" day ofJanuary, 2013.


## L.{dd

# ~:.£~I-£btl)t;;. DANA STEPHE SON

. Office 

### ofRegional Counsel (A.l\JM-7) Federal Aviation Administration 1601 Lind Ave. SW Renton, WA 98057 TEL: (425) 227-2164**F.~'C:** (425) 227-1007 PAGE 14/14

Cm.iPLAINANi"'S HEARlNG BRl:l:F RYLE E. LOMA.ZOW, F1\A. A TIORl'ffiY MOUNrt.rN AVJI<TION- FDMS**NOFAA-~012-0875** FAA CASE NO. 2011NM030039 Page 13 ofl3 TEL: (425)227-1847; FAX: (425)227-100702/21/2013 0g:35

To: 

### Hearing Docket, AGC-400 Company: Phone: Fax: 

### (202) 493-5020

From: 

### Kate Barber Title: 

### FAA Attorney

Date: 

### February 21, 2013 Pages w/cover:



### Message: FAA GLRC PAGE 01/04



# Federal Aviation

Office of the Regional Counsel Great Lakes Region 2300 East Devon Des Plaines, IL 60018 Telephone. 847-294-7862 Fax No_ 847-294-8293 E-mail: Kate.barber@faa.gov


### Facsimile



### Please find attached Complainant's Motion to Dismiss Appeal and Strike Response Brief to Initial Decision of Administrative Law Judge Richard C. Goodwin.

# sr~~

# $)~~~02/21/2013 09:35 8472947498 FAA GLRC



### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS WASHINGTON, DC

Federal Aviation Administration Complainant 

## v. 

## * "' 

## * * 

# * FAADocket No. CPl!GLOOOO D & M CustomInjection Molding CoJ1loration Respondent 

## * * 

# "'. * *************************************·~~** 

### Judge Richard C. Goodwin DMS No. FAA-2011-0679



### MOTION TO DISMISS APJ>EAL AND STRIKE RESPONSE BRIEF TO INITIAL DECISION OF ADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN

The Complainant moves to strikethe Respondent's unauthorized appeal brief from the record and asks that an Order be entered dismissing the untimely appeal filed by the Respondent, based upon the following: l. On December 

### 13, 2012, the Honorable Judge issued a written decision onthe PAGE 02/04



### August 

### 9, 2012 hearing, pursuant to 

### 14 C.F.R. § 13.232(c) ofthe Rules ofPractice in 

### FAA Civil Penalty Actions.
2. On January 30, 201.2, the Respondent filed a document ti.tled Response Brlefto Initial Decision 

### ofAdministrative Law Judge Richard C. Goodwin. 

### 3. The Respondent did not file a NotJ.ce ofAppeal.
4. Pursuant to 14 C.P.R. § 13.233(a), a Noti.ce ofAppeal mustbe filed inthe fAA Hearing Docket within 10 days after the service ofthe written initial decision.02/21/2013 09:35 8472947498 FAA GLRC PAGE 03/04



### 2 Th!lRulesofPra,gtiqein.FAA Civil.Penalty,A.ctionsdonotallowthe filingofa

........................................... Response Briefto Initial Decision. WHEREFORE, Complainant requests that ifthe Administrative Law Judge considers the filing ofthe Response Briefas an 

### Appeal that the Appeal be dismissed on the grounds that a Notice was never filed with the Hearing Docket. 

### In the alternative, Complainant requests that the Response Briefbe stricken as 

### it 

### is not 

### an authorized pleading in 

### the Federal Rules ofPractice in FAA Civil Penalty Actions.

Respectfully submitted, Jeffrey A. 

### Klang Regional Counsel

Kate Barber Federal Aviation Administration Office ofRegional Counsel 2300 East Devon Avenue Des Plaines, Illinois 6001802/21/2013 09:35 8472947498 FAA GLRC



### CERTIFICATE OFSERVICE
I hereby certify that the foregoing Motion hasbeenfaxed and mailed to the following:



### The Honorable 

### Rich!lrd C. Goodwin Administratl,ve LawJudge Office ofHearings, M-50 

### Room. 5411 

### U.S. Department 

### ofTransportation 400 

### Seventh Street, SW Washington, DC 20590 

### FAX: (202) 

### 366-7536
And by CERTIFIED MAIL to: 

### Mr. Scott Hagen Vice Preside11t D&M Custom Injection Molding Corpor&tion !50 French Ro&d 

### P.O. Box 

### 158 Burlington, IL 60109


### Hearing Docket 

### FAA, AGC-400 600 

### Independence Ave., SW Room 2014 Washington, DC 20590 

### PAX: (202) 493-5020 TEL: (202) 385-8229

Dated I PAGE 04/04



### 3