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 

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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.gov 
02/21/2013 05:49 4252271007 ANM7 

1 Kyle E. Lomazow 

2 FAA Offi.ce of Regional Counsel 

3 160 l Lind Ave., SW 

4 Renton, Washington 98057 

s Telephone: (425) 227-1847 

6 Facsimile: (425) 227-1007 

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UNITED STATES OF AMERICA 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

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l6 In the Matter of 

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1s MOUNTAIN AVIATION, INC. 

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DMS NO. F AA-20 12-0875 

FAA Case No. 2011NM030039 

COMPLA.INANT'S BRIEF 

PROCEDURAL SUMMARY 

On August 16, 2012, Complainant issued a Complaint to which Respondent filed an 

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Answer. 1 In its 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 and the 

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allegations in Section ill, paragraphs 1, 2 and 3 of the Complaint.3 On November 7, 2012 the 

hearing in this matter was held in Denver, Colorado. 

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so 1 See Complaint and Answer. 

s 1 1 Complaint II.! and Answer 

s 2 ' Complaint Section II and III and Answer 

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CoMPLArnANT'S H£.\R!NG BRIE.F 

MOUNTAIN AVIATION- FDMS No F AA-2012-0875l'AA 

CASE No. 2011NM030039 

Pnge) ofl3 

/C;YLF- B-. .l .. QMAZOW, FAA ATTORNEY 

TEL: (425)227-1847.: l'AX: (425)227·1 007 
02/21/2013 05:49 4252271007 ANM7 PAGE 03/14 

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STATEMENT OF FACTS 

Mountain Aviation (Mo\Ultain) is the holder of Ai.r Carrier Certificate No. VQMA053W 

and conducts its operations under Part 135 of the Federal Aviation Regulations. 4 On 

J.o December 16, 2010, Mountain directed Rodney Getty to administer three flight checks to 

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John A. Kuzenski. 5 On December 21, 2010, Mountain directed Rodney Getty to administer a 

flight check to Stephanie A. Wells.6 On December 26,2010, Rodney Getty administered two 

flight checks to Jeremy L. Sumpter.7 Mountain used Rodney Getty to administer these flight 

checks when he had not satisfactorily conducted a proficiency or competency check under the 

observatioll of a Federal Aviation (FAA) inspector or an Aircrcw Designated Examiner (ADE) 

employed by Mountain within the preceding 24 calendar months as required by 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. 

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Additionally, Mountain operated as a d)l:ect air carrier for compensation or hire without keeping 

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at its principle place of business records showing that Rodney Getty has completed the required 

training under 14 C.F .R. in order to administer flight checks.9 

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Complaint has alleged that Motmtain violated the following regulations under 14 C.F.R, 

all of which were denied by Respondent in its Answer: 

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a. Section !35.63(a)(4)(vi), Jn that Mountain failed to keep at its principal business 

office a record of a 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 

4 9 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: 

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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)227·1007 
02/21/2013 05:49 4252271007 PAGE 04/14 

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result of each of the initial and recurrent competency tests and proficiency and route 

checks required by 14 C.F.R Part 135, 

b. Section 135 .95(b ), in. that Mountain used the services of an airman who was not 

qualified for the operation for which the airman was used. 

c. Section 135.339(a)(2), .in tb.at Mountain used a person as a check airman when that 

person had not satisfactorily conducted a proficiency or competency under the 

observation of a Federal Aviation Administration inspector or an Aircrew Designated 

Examiner employed by Mmmtain within the precedi!lg 24 calendar months. 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 of Mountain's training records and check airman records he discovered that Rodney 

Getty had not undergone the 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 observation by 

September 30, 2010 and Mountain never submitted proof to 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 airman John A. Kuzneski ,

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4 9 10 Complaint, Section Ill and denied in 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, 

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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)227-1007 
02/21/2013 05:49 4252271007 ANM7 PAGE 05/1

1 December 21, 2010, Mr. Getty gave one flight check to airman Stephanie A. Wells14 and on 

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December 26, 2010, M:r. Getty gave multiple flight checks to airman Jeremy L. Sumpter.15 All of 

6 these flight checks were conducted when Mr. Getty was not legally able to perform flight checkS, 

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8 due to the fact that he had not received the required observation under C.P.R. l35.339(a)(2). On 

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January 18, 20 I 1, Jeremy Sumpter acted as second in command (SIC) of a Part 135 flight on 

behalf of Mountain when he was not qualified to act as SIC due to the fact that he had received a 

flight check from Mr. Getty, who at the 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 argument below. 

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

EXAMINER 

Mountain argued at the hearing that one of their own check airman, Or<>n Taft, was 

designated an ADE by Al Hankins, their Principle Operations Inspector, but they did not produce 

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 of the cross-examination testimony of their Chief Pilot, Gary Emerson, ;eveals how weak 

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Mountain's defense is: 42 

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Q: Does Mountain Aviation Employ an Aircrcw Designated Examiner. 

A· Yes 

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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. 

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Co'MPLAIN.ANT'S HnAR.mG BRTE.F 

MOUNTAW AVIATION- PDMS No FAA·2012·0875 FAA 

CAsBNo. 20lll'iM030039 

Page 4 of 13 

KYLE'& ;LQMAI';OW. FAA ATIOR}i'EY 

TEL: (425)227-184-7; FAX. (425)227-1007 
02/21/2013 05:49 4252271007 PAGE 05/14 

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Q. And when did you start believing that Mountain Aviation employed an Aircrew 

Designated Examiner? 

A: When 1 had the conversation with Mr. Hankins and I read this and got the direction to 

continue checking, the Aircrew Designated Examiner fit in the context of the 

conversation we had. 17 · 

However, lvir. Emerson admitted that during his telephone conversation with AI Hankins that he 

never asked AI Hankins if Mountain actually did employ an r\DE and that the topic never came 

up in the conversation. 18 Instead, Mr. Emerson testified, "as I previously stated, after ihat 

conversation I went and looked at the LOAs and reread l35.339(a)(2) and logically concluded 

that was in the context of the conversation." 19 The cross examination continued with tbe 

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Q: You concluded based on your own thought process? 

A: No. I concluded that based on what Al Hankins told me. 

Q: Okay. But you never called up AI Hankins and said, 'by the way, 

1 want to make sure I have this right; I believe we have an Aircrew 

Designated Examiner; is that what you meantry' You never had this . 'th him, 20 conv ersatwn WI • 

A: The question wasn't about the Aircrew Designated Exru:ni11er. 

He had told me to continue checking. So I had no reason to have that 

conversation with him. 

Mr. Emerson's testimony falls apmt. On one hand he argues that based on his conversation with 

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 that their conversation was 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 that they employed ru.1 ADE. Mountain never 

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so 17 Tr. at 139, lines ll-21 

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CoMPLAINANT's 1-!:M.R.tNo BRII!'F 

MoTJ«TAlN AVIATION- FDMS No FAA-2012-0875 FAA 

CASE NO. 2011NM030039 

Page 5 ofl} 

KYLe; E. LOMA.ZOW, F A.A. ATTORNEY 

TEL; (425)227-1847; FAX.: (425)2n-J007 
02/21/2013 05:4S 4252271007 ANH7 PAGE 07/14 

1 applied for an ADE program, never saw any certificates indicating their check airman were 

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A DEs and the FAA never advised Mountain that they did, in fact, employ an ADE. 21 

Expert witness Peter Popp testified that the process for acquiring an. ADE Program has 

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

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Mountain argued that the language "all checks" in the Letter of Authorization they received from 

Al HwJkins somehow conferred ADE status upon them, 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 behalf was Mr. Richy Allen Bjelkevig, the 

President and Director of Operations of Mountain. Mr. Bjelkevig testified that a meeting with 

FAA inspectors took place after this enforcement action was instituted, and admitted that none of 

n the inspectors present advised Mountain that they employed an ADE. 

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Mountain's conclusion that they employed an ADE simply has no basis in reality. It 

would be no different if a patrol offi.cer decided one day that he had made detective without 

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was being promoted to detective. In short, it was simply not reasonable for Mountain to assume 

they employed an ADE without taking any steps to confi.un. this behef. Air carriers are held to a 

high standard in order to ensure the safety of the 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 of their aircrew. Mountain's argument that they 

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so 20 Tr. at 140, lines 12-24, Tr. at 141m lines 1-13. 

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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 

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COJ\.lPLAINANT'S HEARJNQ B~TEF 

MolJNTAlN AVJAT!ON-FDMS No FM-2012-0875FAA 

CASE NO. 2011 NM030039 

Page 6 of 13 

iCYL'E. E. 10MAZOW, FAA ATTORNSY 

TEL: (425)2;17-1847; FAX: (425)227-1007 
02/21!2013 05:49 4252271007 ANH7 PAGE 08!1

~ "logically concluded on their OVv'!l" that they employed an ADE falls far below th:: standard of 

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what is to be expected from a reasonable, diligent air carrier. 

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 published policy 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's penalty detennination through a Sanction Guidance Matrix. The Matrix sets out 

specific penalty ranges for each type of violation and provides a range within which an 

appropriate sanction should be sought. Complainant's sanction determination nevertheless does 

not merely reflect a fJXed mathematical oomputatio11 but considers a multitude of factors set forth 

in Chapter 7, paragraph 4. Using these factors, the Complainant adjusts the sanctioJ:l either 

upward or downward from middle of the recommended sanction range?5 The Complainant has 

identified thirteen (13) factors to consider when determining the appropriate sanction for the 

violations associated with this case?6 In Folsom's Air Service .. Jnc:, FAA Order No 2008-11 

4.o "Tr. at.89,1ines 16-22, Tr. at 90, lines 1-8. 

41 " If Respondent 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 civil penalty proceeding rather than employing some lesser fonn of sanction (s11ch as a 

4 3 letter ofcorrection) is a matter committed to the Agency's sound discretion. See In the matler of Off 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)(initial decision), 

47 25 !be guidance provides that the middle of each 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 of experience; 

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CO}..tt>i..AJNANT'S H!.AR.'INO Bltlm' 

MoumAJN A viA noN- FDMSNoFAA-2012-0875 FAA 

CASE No. 2011NM030039 

Page 7 of ll 

ICYT...:E E.. T-O"M"A?..OW, F A.A.. ATTO.'RNZ'Y 

TEl-: (425)227-1847; FAX: (4;l.5)Z27-1007 
02/21/2013 05:49 4252271007 ANM7 PAGE 0'3/14 

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(November 6, 2008), the Administrator held that FAA Order reflects the Adminlstr:ator's general 

views about the civi.l penalty ranges that ar:e appropriate for different types of violations. In short, 

6 a civil penalty must reflect the totality of the circumstances surrounding the violations. Folsom's, 

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The ALJ is bound to follow Agency guidance and the Administrator has asserted the 

power to impose the agency's sanction policy on appeal if an ALJ assesses a civil penalty that is 

not consistent with the policy. See In the matter ofWarbelow's Air Ventures, Inc., FAA Order 

No. 2000-3 (February 3, 2000), at 20; In the matter of.Northwest Airlines, FAA Order No. 1990-

37 (November 7, 1990), at 8"10. 

From the outset, the Complainant acknowledges that it has the burden to justifY the amount of 

civil penalty it seeks. In the Matter of Luxemburg, FAA Order 1994---18 (June 22, 1994). 

However, it is also well established that ''[aJn administrative agency is entitled to substantial 

deference in assessing the civil penalty appropriate for a violation of its regulations. Th.e 

Agency's choice of a sanction is not to be overturned unless it is unwarranted in law or without 

justUidtion in fact." NL Industries, Inc. v. Dept. of Transportation, 901 F.2d 141, 144 (D.C. Cir, 

d. The attitude of the 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 of the certificate; 

h. Violation history; 

L Decisionallaw; 

j_ Ability to absorb the sanction; 

k. Consistency of Sanction; 

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 

TEL: (425)227·1847; fAX: (425)227-1007 
02/21/2013 05:49 4252271007 PAGE 10/14 

1 1990), 27 In this case, the sanction is not only appropriate but fully supported under the 

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Administrator's sanction guidance."8 

By statute- Title 49, Section 4470l(d)(l)(A), Air carriers are held to a high duty of care. 

s Indeed, they are obligated to perform their services with "the highest possible standard of care." 

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See, e.g., Folsom's, ~ p. 16. This degree of care 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 of experience may be held to a higher standard.';z9 

For sanction purposes, the Administrator has identified what an appropriate sanction 

would be for each type of violation alleged in thi.s case. Mountain is considered a Class III 

business concern under the sanction guidance aud is liable for a sanction of up to $11,000 per 

violation. Beginning at the mid-range, prior to any further evaluation, the initial sanction would 

be $7,150 per violation. Here, Mountain v:iolated CFR 135.339(a)(2) three times and has two 

other violations for a. total of 5 altogether, which equals a total of $3 5, 750. The sanction sought 

in this case is $21,450, which is a significant downward deviation. 

If the five regulatory violations were considered as being bound together 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 factors justifying the reduction of an otherwise reasonable 

44 civil penalty, Complainant's u•e of the sanction guidance to determine the appropriate ci.vil penalty should not be 

45 disturbed." In the Marter of Blue Ridge Airlines, FAA Order No. 99-15, 1999 \IlL 1279832 (Dec. 22, 1999) citing 

46 Tran.' World Airlines, Inc., FAA Order No. 98"11, at 2,1 (.T~>ne 16, 1988). Accord FAA v. Don Bessette Aviation, 

47 2006 WL 1624325, at 5, 7 (initial decision ofJudge GoodWin). 

~.s "'"When sanction is an issue, the law judge is expected to give a reasoned explanation of the amount of the civil 

4 9 penalty selected, whether or not the penalty is reduced. The Administrative Procedure Act requires articulation of the 

5o law judge's sanction decision." ln the Matter of Toyota Motor Sales, lnc., FAA Order No. 94-24, 1994 WL 89966 

51 (Sept. 30, 1994)(citing to 5 U.S.C. §557(c)). 

52 29FAA Order 2150.3B, cbap. 4, para. 4(c)(l)[p. 7-5] 

53 

COMl'LAINANT' S IJR'JUNG BRIEF 

MOUNTAIN AV!ATION-FDMSNo F AA-2012-0875 FAA 

CASE NO. 2011NM030039 

Poge 9 of\3 

KY1...:t;.p_ J.OMAZOW. FAA ATTORNEY 

TEL; (425)Z27-1847.: FAX: (425)227-1007 
02/21/2013 05:49 4252271007 ANH7 PAGE 11/14 

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

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do'Ntlward deviation from the Administrator's sanction guidance. Any sanction below the 

proposed sanction would not provide a sufficient deterrent. In their response to the Letter of 

s Investigation, Mountain indicated that Mr. Getty was immediately suspended, that Mountain 

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conducted an external audit to ensure all their check airman were qualified and that they had 

grounded Mr. Sumpter until he could be rechecked by another check airman. 30 However, 

15 Mountain never offered any evidence or testimony indicating that they had instituted any new 

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procedure or protocols to ensure they do not lose track of the qualification status of their check 

ainuen .in the future. 

In conclusion., the Agency is in the best position to determine what sanction should be 

imposed for a given violation and absent a finding that the 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 of the sanction guidance. 

CONCLUSION 

Mountain failed to present any evidence that Rodney Getty was qualified to give the 

above-mentioned flight checks. Though Mountain attempted to argue that they employed an 

41 ADE, their Chief Pilot at the time and President of the Company readily admitted that no one 

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44 from the FAA ever advised Mountain that they djd in fact employ one. As ChiefPilot Gary 

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46 Emerson testified, he came to the conclusion that MoW1tain employed an ADE on bis own 

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4 8 without any guidance though he knew full well that MoW1tain had never applied for an ADE 

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s 2 " See Bxhibit 7. 

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CoMYLAJNANT's HEARJNG BRTEF 

MoUNTArN AvtADON-FDMS NoFAA-20l2-087SFAA 

CASE NO. 201JNM030039 

Page 10ofl3 

"KV1.~_:r;, LOlvlAZOW, FAAA':r'tORNBY 

TEL (425)227-1847; FAX; (425)227-1007 
02/21/2013 05:49 4252271007 ANM7 PAGE 12/14 

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

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presented no evidence at the hearing in the form of applications, certificates, licenses, etc., that 

they ever applied for or employed an AD.E. 

The reason that 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 of the requireme:ots 

ofCFR 135.339(a)(2) considering Mr. Getty underwent a valid observation by an FAA inspector 

in August of 2008. However, Mountain failed to ensure that Mr. Getty received a follow-up 

observation by September of20) 0 and because they failed to keep track of Mr. Getty's status 

Mountain used an unqualified airman to perform mnltlple flight checks. 

The Complainant therefore has proven the following violations for the reasons stated 

above and below: 

Section 135.63{a){4)(vi): 

Mountain never produced any records during ASI Lang's initi.al inspection or at 

the hearing showing that Rodney Getty had rec6ved 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, Complainant has proven thls violation. 

CoMPLA.lNANT'S HEARING Bl'..ffir 

MoUNTAIN AV1ATION-FDMS No F AA·2012-0S75 FAA 

CASE NO. 2011NM03Q039 

Page JJ oflJ 

KYlE E.. LOMAZOW. FAA. ATTORNEY 

TEL: (425)227-!847; FAX: ( 425)227,\007 
02/21/2013 05:49 4252271007 ANH7 PAGE 13/14 

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Section135.339(a)(2) 

This violation is the heart of the 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 of proof by a preponderan.ce of the evidence, we 

ask that a verdict be entered finding respondent Hable for the above-mentioned violations and 

san.ction. 

RESPECTFULLY SUE .MITrED this 21st day of February 2013. 

/ 

34. K~Lomazow 

3 s FA.A Attorney 

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COt.1PLi\TNANT'.r; Hf!..I\,"RTN(} BR'IEF 

MOUNTA.!N AVIATION- FDMS No F AA"2012-0875 F !v\ 

CAsE No. Z011NM030039 

.?age 12 of 13 TEL: (425)227-1847; fAX: (425)227·1007 
02/21/2013 05:49 

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4252271007 ANM7 

CERTIFICATE OF SERVICE 

4 I hereby certifY that the foregoing Complainmt's Brief, has been served via Facsimile and 

s Certified Mail this date, to the following: 

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$3 

\he Honorable Richard C. Goodwin 

Office of hearings, 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 

Dated this 21" day ofJanuary, 2013. 

L.{dd ~:.£~I-£btl)t;;. DANA STEPHE SON . 

Office of Regional 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, F 1\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)227-1007 
02/21/2013 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. 

* 

"' 

* 

* * FAA Docket No. CPl!GLOOOO 

D & M Custom Injection 

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 LAW JUDGE RICHARD C. 

GOODWIN 

The Complainant moves to strike the 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 on the 

PAGE 02/04 

August 9, 2012 hearing, pursuant to 14 C.F.R. § 13.232(c) of the Rules of Practice 

in FAA Civil Penalty Actions. 

2. On January 30, 201.2, the Respondent filed a document ti.tled Response Brlefto 

Initial Decision of Administrative Law Judge Richard C. Goodwin. 

3. The Respondent did not file a NotJ.ce of Appeal. 

4. Pursuant to 14 C.P.R. § 13.233(a), a Noti.ce of Appeal must be filed in the fAA 

Hearing Docket within 10 days after the service of the written initial decision. 
02/21/2013 09:35 8472947498 FAA GLRC PAGE 03/04 

2 

Th!lRulesofPra,gtiqein.FAA Civil.Penalty,A.ctionsdonotallow the filingofa .......................................... . 

Response Brief to Initial Decision. 

WHEREFORE, Complainant requests that if the Administrative Law Judge considers the 

filing of the Response Brief as 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 of Practice in FAA Civil Penalty Actions. 

Respectfully submitted, 

Jeffrey A. Klang 

Regional Counsel 

Kate Barber 

Federal Aviation Administration 

Office of Regional Counsel 

2300 East Devon Avenue 

Des Plaines, Illinois 60018 
02/21/2013 09:35 8472947498 FAA GLRC 

CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Motion has been faxed and mailed to the following: 

The Honorable Rich!lrd C. Goodwin 

Administratl,ve Law Judge 

Office of Hearings, M-50 

Room. 5411 

U.S. Department of Transportation 

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 

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