i-A* + nM<! 0)001/007 

n/29/201 0 11:15 FAX 2024935142 FAA * 0^^ ^ ' 

^•rPARTMENT OF 

hiANSPORWiON • 

•.:r(Er OPERATIONS 

U.S. DEPARTMENT OF TRANSPORTATION '-'"' - " - ' ^'^ " ' ^u 

OFFICE OF HEARINGS 

WASHINGTON, DC. 

IN THE MATTER OF 

NEBO AVIATION SERVICES, LLC 

FAA Dockoi No. 2009tA030038 

(Civil Penalty Aciion) 

DMSNo. I'AA xxx-xxxx t-flbtkOUX 1^0^^^/^^? 

Judge Noi Assigned 

Hearing Location: Not assigned 

1 learing Date: Not assigned 

ANSWER AND AFFIRMATIVE DEFENSES 

I. 

COMES NOW, NEBO Aviation Services, LLC (hereinafter ^'NEBO AVIATION"), by 

and ihrough undersigned counsel pursuant to Rule 209 of the Rules of Practice (14 C.F.R, 

§ 13.209), and hereby files its Answer to the Complaini filed by the Federal Aviation 

Administration dated October 26, 2010. 

On October IS, 2010, NEBO submitted a written request foi a hearing pursuant to 14 

C.F.R. §13.16. 

II. 

1. NEBO AVIATION admits the allegations contained in paragraph 1 of the Complaini. 

2. NEBO AVIATION admits the allegations contained in paragraph 2 of the Complaint. 

3. NEBO AVIATION admits the allegations contained in paragraph 3 of the Complaint. 

4. NEBO AVIATION denies the allegations contained in paragraph 4 of the Complaint. 
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5. NEBO AVIATION lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 5 of the Complaint and therefore, 

denies same and demands strict proof thereof, 

6. NEBO AViAllON lacks knowledge or information sufficient to form a belief as to the 

trutli or falsity of the allegations contained in paragraph 6 of the Complaint and therefore, 

denies same and demands strict proof thereof 

7. NEBO AVIATION lacks knowledge or information sufficient to form a belief a;; to the 

truth or falsity olthc allegations contained in paragraph 7 of the Complaint and therefore, 

denies same and demands strict proof thereof 

8. NEBO AVIATION denies the allegations contained in paragraph 8 of the Complaint. 

9. NEBO AVIATION denies the allegations contained in paragraph 9 of the Complaint. 

10. NEBO AVIATION denies the allegations contained in paragraph 10 of the Complaint. 

11. NFBO AVIATION denies the allegations contained in paragraph 11 of the Complaint. 

12. NEBO AVIATION lacks knowledge or information sufficient to fomi a belief as to the 

truth or falsity of the aIlegation.s contained in paragraph 12 of the Complaint and therefore, 

denies same and demands strict proof thereof 

13. NEBO AVIATION lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 13 of the Complaini and therefore, 

denies same and demands strict proof thereof. 

14. NEBO AVIA nON denies the allegations contained in paragraph 14 of the Comphiint. 

15. NEDO AVIATION admits the allegations contained in paragraph 15 of the Complaint. 

16. NEBO AVIATION lacks knowledge or information sufficient to form a belief as to the 
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21 

27 

truth or falsity of the allegations contained in paragraph 16 of the Complaint and therefore, 

denies same and demands strict proof thereof. 

17. NEBO AVIATION denies the allegations contained in paragraph 17 of the Complaint, 

18. NEBO AVIATION denies the allegations contained in paragraph 18 of the Complaint, 

19. NEBO AVIATION lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 19 of ihe Complaint and therefore, 

denies same and demands strict proof thereof. 

20. NEBO AVIATION denies the allegations contained in paragraph 20 of the Complaint. 

NEBO AVIATION denies the allegations contained in paragraph 21 of the Complaint. 

NEBO AVIATION denies the allegations contained in paragraph 22 of the Complaijit. 

ni. 

a. NEBO AVIATION denies that it violated 14 C.F.R. §145.201(c)(l). 

b. NEBO AVIATION denies that it violated 14 C.F.R. §43.13(a). 

IV. 

1. NEBO AVIATION denie.s that pursuant to 49 U.S.C. §46301(a)(l), it is liable lor a civil 

penalty not to exceed $25,000 for each of the violations alleged, or, for a small business 

concern, pursuant to 49 U.S.C. §46301 (a)(5), it is subject to a civil penally not to exceed 

$11,000 for each of the violations alleged. 

2. NKBO AVIATION denies that under the facts and circumstances of this case, a civil penalty of 

$22,000.00 is appropriate. 

Any matter not specifically admitted by NEBO AVIATION shall be deemed denied. 
* DMS 121004/007 

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AFFIRMATIVE DEFENSES 

1. In determining the civil penalty amount, the Complainant has failed to consider (1) the 

nature and circumstances of the violation; (2) the extent and gravity of the violation; (3) the 

respondent's degree of culpability; (4) the respondent's history of prior violations, if any; 

(5) the respondent's ability to pay the civil penalty; (6) the effect on the cntity'.s ability to 

stay in bu.siness; and (7) other matters as justice may require. See 49 U.S.C. §46301 (e)(2); 

See also Folsom'sAir Service, Inc.. FAA Order No. 2008-11 (November 6, 2008), p. 11 . 

2. in determining the civil penalty amount, the Complainant has failed to determine whether 

the violation was inadvenent or deliberate. 

3. In determining the civil penalty amount, the Complainant has failed to consider the 

Re.spondent's size, particularly in determining the alleged offender's ability to absorb the 

sanction. 

4. The proposed civil penalty fails to retlect the totality of tiic circumstances surrounding the 

violations. See Fol.som's Air Service, Inc., FAA Order No. 2008-11 (November 6,2008), p. 

12; Eastern Air Center. inc., FAA Order No. 2008-3 (.lanuary 28,2008). 

5. NEBO Aviation docs not have the financial ability to pay the proposed civil penally. 

6. The proposed civil penalty would have a detrimental effect on the abi lity of NEBO 

Aviation to continue doing business. 

7. NEBO Aviation relies upon the afTirmative defense of reasonable reliance. 
* DMS @l005/007 

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8. The Federal Aviation Administration's (FAA's) interpretation of its Federal Aviation 

Regulations in this case is arbitrary, capricious, an abui5e of discretion, or otherwise not in 

accordance with law. See 5 U.S.C. § 706(2) (A); PVatkins v. NTSB, 178 F.3d 959,961 (8ih 

Cir. 1999). 

9. rhe FAA's interpretation of its aviation regulations is unconstitutionally vague. See 

Ihoma.s- v. Hinson, 74 F.3d 888, 889 (8th Cir, 1996); .sec also Trans Stale.-! Airline.'!. Inc. v. 

FAA, 439 F.3d 863, 864-865 (8th Cir. 2006); Heath v. SEC. 2009 U.S. App. LEXIS 24128 

at *53-55. 

10. The FAA's application of its Federal Aviation Regulations in this case is contrar>' to the 

regulation's plain language. StcAdvanta USA. Inc. v. Chuo, 350 F.3d 726, 728 (8th Cir. 

2003), quoting Gardebringv. Jenkins. 485 U.S. 415,430,108 S. Ct. 1306, 99 L. Ed. 2d 515 

(1988). See also Trans States Airlines, Inc. v. FAA, 439 F.3d 863,864-865 (8th Cir, 2006). 

11. Respondent asserts that the Complainant has failed to state a claim upon which the relief 

requested may bo granted. 

12. Respondent asserts that the Complainant lacks substantial basis in law and fact to continue 

prosecution of this matter against it. 
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Dated: November 16, 2010 

Respectfull 

TON, ESQ. 

Firm 

GI 

The Avjktik 

One: 

Suite/450 

Rockvillc, MD 20850 

Tel; (301) 294-8550 

Fax:(301)294-2525 

Greg@AviationLawExperts.com 

Counsel for Respondent 
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CERTIFICATE OF SERVICE 

T hereby certify that I have tiiis date served by regular U.S. mail, postage prepaid, an original and 

one (1) copy of the foregoing Answer addressed to: 

Attemion: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Suite 2 Wl 000 

Waiihington, D.C. 20591 

And, further, that I have this date served via facsimile and regular U.S. mail, postage prepaid, a 

copy of the foregoing Answer addressed to: 

Stephen W. Brice, Esq. 

FAA Eastem Region, AEA-7 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

Fax: 718 995 5699 

Dated: November 16, 2010 

GKSGOJiY SJi^lNTON, ESQ. 

The Aviandffl.aw Firm 

mc Research Court 

Suite 450 

Rockvillc. MD 20850 

Tel: (301) 294-8550 

Fax:(301)294-2525