JEFFREY HARPER FAA OFFICE OF REGIONAL COUNSEL 1601 LIND AVE., SW RENTON, WASH!NGTON 98057 TELEPHONE: (425) 227-2161 FACSIMILE: (425) 227-1007 

# RECEIVED SEP- 52012 

## HEARING DOCKET

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

In the Matter of: Leading EdgeAviation, Inc. FAA Case No. 2011NM070089 DMS No.: FAA-2012-0783 Honorable Richard C. Goodwin



### MOTION OPPOSING RESPONDENT'S REQUEST FOR DISMISSAL
The Federal Aviation Administration (FAA), by counsel, hereby opposes Respondent's Request for Dismissal contained in its Answerunder "Statement ofReliefSought." 

### Summary of Facts The Complaint was filed onJuly 25, 2012. Respondent filed its Answer on August 22, 2012. Respondent denies a number ofthe allegations in the Complaint and asserts 14 affirmative defenses. InAffirmative Defense #4, Respondent avers Complainant has failed to state a cause ofaction. Inthe Statement ofReliefSought, Respondent "requests that this matter be dismissed

...." At this stage ofthe. proceedings, Respondent's denials and Affmn.ative defenses are unsupported by any evidence in the record. 

### Argument The proponent ofa motion, request, or order has the burden ofproof. Rule 13 .224(b). The party with the burdenmustprove its case or defense by a preponderance ofreliable, probative, and substantial evidence. Rule 13.223. Respondent's Affirmative Defense #4 appears to request dismissal ofthe Complaint for insufficiency under Rule 13.218(£)(1). The Statement ofReliefSought appears torequest. dismissal ofthe Complaintunder Rule 13.218(f)(2)(ii).

### Insufficiency "A complaint shall set forth the facts alleged, any regulation allegedly violated by the respondent, and the proposed civil penalty in sufficient detail to provide notice ofany factual or legal allegation and proposed civil penalty." Rule 13.208(c). A complaint is sufficient if the respondent understands the issues and was afforded the full opportunity tojustifY its conduct during the course ofthe litigation. In the Matter of BrendanAirways, DMSNo.FAA2009-0032 (Order served June 7, 2010) at 3, citingAlohaAirlines, Inc. v. CivilAeronautics Bd., 598 F.2d 250,262 (D.C. Cir. 1979). On a Motionto Dismiss, the allegations in the complaint are assumed to be true. In the Matter of Riverdale Mills Corporation, FAA Order No. 2000-25 at 1, citing United States v. Gaubert, 499 U.S. 315, 327 (1991). The Complaint in this case is sufficient. It sets forth the facts alleged, which are asstuned to be true.**Complaint~~** 

### II.l-17. It 

### sets forth the regulations alleged to have been violated.**Complaint~** 

### III.l. It 

### sets forth the proposed civil penalty.**Complaint~** 

### III.3. It

### provides sufficient detail for respondent to understand the**issues~the** 

### case addresses Respondent's actions inperforming a 100 hour inspection on a particular date**(Complaint~** 

### II.l0) on a particularhelicopter for whichit was not rated to work on at the time**(Complaint~** 

### II.5), and its failure inperforming that inspection to follow its manual and the manufacturer's inspectionprogram as required**(Complaint~~** 

### II.6, 8, 11, 13, 14, 16). Respondent fails to offer any explanation ofwhythe alleged facts, iftrue, do not establishthe alleged violations. Respondent has had every opportunity to "justifY its conduct" Inresponse to the Notice of Proposed Civil Penalty, Respondent requested an Informal Conference under Rule 13.16(f)(2)(iii), which was held on May 16, 2012 with undersigned counsel. Exhibit 1. Respondent submitted written informationto the agency attorney as permitted by Rule 13.16(f)(2)(i). Exhibit 2. Respondent has requested a hearing under Rule 13 .16(g)(2)(ii). Exhibit 3. Respondent may dispute the allegations; that does not make the Complaint insufficient. On the contrary, the record establishes that Respondent both understands the issues and has been afforded the full opportunity tojustifY its conduct during the course ofthe litigation. Thus, the Complaint is sufficient and should not be dismissed.
Dismissal Respondent disputes a ntunber ofthe facts alleged inthe complaint. However, on a motion to dismiss, the facts alleged are assumed to be true. Riverdale Mills at 1. Merely disputing the facts does not warrant dismissal. The record is presently devoid ofany evidence. Respondent has presented no evidence to support dismissal ofthe complaint. It

### merely makes facial denials ofallegations inthe

MOTION OPPOSING RESPONDENT'S REQUEST FORDISMISSAL FAAv. Leading Edge, Inc. FAA Case No. 2011NM0700&9, DMS No. FAA-2012-0783 Page2 of4 JEFFREYM. HN<PER, FAAATTORNEY TEL: 425.227.1417; FAX: 425.227.1007complaint. Without evidence, Respondent cannot meet its burdenunder Rules 13.223 and 224(b). Dismissal ofthe complaint is therefore inappropriate. Respondent's denials and affirmative defenses serve only to create issues offact, the resolution ofwhich may require a hearing. 

### Exhibits 1) Respondent's Reply Formto Notice ofProposed Civil Penalty 2) Respondent's Letterto Agency Attorney in Response toNotice ofProposed Civil Penalty (Redacted as statements made during compromise negotiations. See F.R.E. 408(a)(2)). 3) Respondent's Request for Hearing. 

### Conclusion Respondent has requested the Complaintbe dismissed, but has failed to produce any evidence warranting dismissal or otherwise meeting its burden. Respondent's request fails to assert any facts or argue any law which would favor dismissal. Complaint moves the Administrative Law Judge to deny Respondent's request. Respectfully submitted this 29th day ofAugust, 2012.

# L-;!;~ FAA Attorney JMH/nm

MOTION OPPOSING RESPONDENT'S REQUEST FOR DISMISSAL FAA v. Leading Edge, Inc. FAA Case No. 2011NM070089, DMS No. FAA-2012-0783 hge 3 of4 JEFFREYM. HARPER, FAA ATTORNEY TEL: 425.227.1417; FAX: 425.227.1007

### CERTIFICATE OF SERVICE I hereby certify that the foregoing Motion Opposing Respondent's Request for Dismissal has been served viafacsimile and Certified Mail- Return Receipt Requested this date, to the following: The Honorable Richard C. Goodwin Office ofHearings, M-20 1200New Jersey Avenue, S.E. (Ell-310) Washington, D.C. 

### 20590 

### TEL: (202) 366-2139 FAX: (202) 366-7536 Federal Aviation Administration (Original and one copy) 800 Independence Avenue SW Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000 Fax: (202) 493-5142 Fred C. Begy, Esq. Chuhak & 

### Tecson 30 South Wacker Drive, Suite 2600 Chicago, IL 60606 Tel: (312) 855-5442 Fax: (312) 444-9027 Datedthis 29th day ofAugust, 2012.

# )\otat~-**;71arr~)j** Natalie Morrell Office ofRegional Counsel (ANM-7) Federal Aviation Administration 1601 Lind Ave. SW Renton, W A 98057 (425) 227-2914

MOTION OPPOSING RESPONDENT'S REQUEST FOR DISMISSAL FAAv. Leading Edge, Inc. FAA Case No. 2011NM070089, DMS No. FAA-2012-0783 Page 4 of4 JEFFREYM. HARPER, FAAATTORNEY TEL: 425.227.1417; FAX: 425.227.1007REPLY FORM NOTICE OF PROPOSED CIVIL PENALTY Case Name: --,-,--:---c:c:----- Case No. 

### ;iu!l/t/r/1 c'/7cJoff<j

In replytoyour Notice of 

### Civn Penalty, I elect to proceed as indicated by my check mark beside the numbered paragraph below: 1. [ ] l hereby submitthe amount ofthe proposed civil penaltywith the uriderstanding that an order assessing a civil penalty will be issued in thatamountwithoutfurther notice. l ALSO UNDERSTAND THAT I AM WAIVING MY RIGHT TO A HEARING. 2. [ ·] I have paid the proposed civil penaltywith a credit card overthe Internet atthe following website: https:/lwww.pay.gov. 

### I understandthat an 

### orderassessing 

### a civil

### penalty willbe issued fn the amount without furthernotice. IALSO UNDERSTAND THATI

### AM WAMNG 

### MYRiGHT TO A HEARING. 3. [ ] I hereby submit evidence and infonmation, demonstrating that a violation ofthe regulations did notoccur orthat the amount ofthe penalty is not warranted by the circumstances. 4. [ ] I hereby submit information and records showing that I am financially unable to pay the proposed civil penalty, orthat payment ofthe penaltywould prevent me from continuing in business, 5. [ ] I hereby requestthat a civil penalty be assessed in the amount of$.

__ -:':;:-;-;;:-;-:---;;:-;:-;-- and l submitthe reasons forthe reduction. My request constitutes my agreement !hat ifthe FAA acceptsthis offer, an order assessing civil penalty in the amount I have specified may be issued without further notice. MY REQUEST ALSO CONSTITUTES MY AGREEMENTTHAT l HAVE WAIVED MY RIGHT TO A HEARING IF MY OFFER IS ACCEPTED, IF THE FAA DOES NOT ACCEPT THIS OFFER, HOWEVER, MY RIGHT TO A HEARING IS NOT AFFECTED. 6.a, 

## 1><[ I hereby request a telephonic infonmal conference to discuss this matter with a FAA attorney. ·(An attorney will call you atthe telephone number you provide here:**(','IJL3fi}:_/i_9§_~~-:_.** You will

be provided at least2 weeks advance notice ofthe date and time ofthis conference.)· NOTE: Ifyou choose to discuss this matter1nfonmally by telephone, you ·Should provide any documents orother information you wish to have considered on your behalf before the date ofthe infonmal conference, 6.b. [ 

### ! hereby request an in-person infonmat conference with a FAAattorney to discuss this matter at (choose a FAA office from the attached list). 6.c. 

## ! ] I hereby request an in-person infonmal conference with a FAA attorney to discuss this matter at .· I am requesting an in-person informal conference atthis location because

. I have also indicated an alternate location from the attached list under item 6.b. in the event the FAA is unable to grant my request under this option, 7. [ ] I hereby request that the FAA impose a civil penalty withoutmaking findings ofviolations, and submit rny reasons. My request constitutes myagreement that ifthis offer is accepted, a compromise orderwill be issued in the amount setforth in the Notice of Proposed Civil Penalty. MY REQUEST 

## Exhibit 1ALSO CONSTITUTES MYAGREEMENT THAT IF THIS OFFER IS ACCEPTED, I HAVE WAIVED MY RIGHT TO A HEARING. 8. [ ] I hereby request a hearing in accordance with Subpart G ofPart 13 ofthe Federal Aviation Regulations with the understanding thata Complaint will be filed. l request that the hearing be held in :;::;--:::::-;-..:--'7::--=---,.--:-:::---77:--:,-· 

### I am sending th!s request both to the 

### F M attorney 

### at The Office ofthe Regional Counsel Northwest Mountain Region, and to the Federal Aviation Administration, 

### 800 IndependenceAvenue, SW., Washington, DC 

### 20591, Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright Building- Suite 2W1000. 9. [ ] I hereby claim entitlementto awaiver of penalty underthe Aviation Safety Reporting Program and enclose evidence that 

### a timely report was filed. As 

### to the allegations 

### offact and violations

- 

### [ ] I request that an order assessing civil penalty with waiver of penalty be issued and 

### I waive my right to 

### a hearing. 

### [ ] I request a hearing in this matter in accordance with paragraph 

### 8, above. Signature: Name: Address: Telephone: Date: Case No.:
[ ] I request that future documents in this case be sentto my rep-resentative: Name: Address: Telephone:23 April 2011 FederalAviation Administration Office ofRegional Counsel 1601 Lind Avenue SW Renton,WA 98057 RE: FAA Case No. 2001NM070089
Mr. Harper. 

### LHUJHG HIE

In response toyour letter dated March 15, 2012 we would like to providethe following information. 

## II

II

II

II



## Exhibit 2JO South Wacker**D~ive,** Suite 2600, Chicago, Illinois 60606 t:3124449300 [:3124449027 chllhilk.c"m

Fred C. Begy, Ill
Writer's Direct Line (312) 855-5442 Writer's E-mail fbegy@chuhak.com
July 12, 2012

VIA FIRSTCLASS U.S. MAIL, CERTIFIED MAIL-RETURNRECEIPT REQUESTED AND FEDERAL EXPRESS Federal Aviation Administration Attention: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2Wl000 800 Independence Avenue SW Washington, D.C. 20591 Jeffery M. Harper FAA Attorney Federal Aviation Administration Office ofRegional Counsel-ANM-7 Northwest Mountain Region 160I Lind Avenue, SW Renton, WA 98057

# ~1 CHUHAK&TECSON,,**""~- --:·-~----·--·-----**  attorneysat law

Re: Leading Edge Aviation, Inc.-Final Notice ofProposed Civil Penalty FAA Case No. 2011 NM 070089
Dear Hearing Docket Clerk and

### Mr. Harper: Please be advised that LeadingEdge Aviation, Inc. has retained our law fmn to represent it in connection with the referenced matter. Also, Leading Edge Aviation, Inc. hereby requests a hearing in connection with the referenced Final Notice ofProposed Civil Penalty, a copy ofwhich is enclosed. Enclosedplease find correspondence from Leading Edge Aviation, Inc. advising the FAAthat it requests a hearing and has retained our law firm to represent it in this matter.

Enclosures cc: Leading Edge Aviation, Inc

.. 

## Exhibit 3

1817939\1\99999199999Leading Edge Aviation, Inc. 63048 Powell Butte Road Bend, OR 9770I

July 12, 2012

VIA First Class US. Mail, CertifiedMail-Return ReceiptRequested andFederalExpress Federal Aviation Administration Attention: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2Wl000 800 Independence Avenue SW Washington, D.C. 20591 Jeffery M. Harper FAA Attorney Federal Aviation Administration Office ofRegional Counsel-ANM"7 Northwest Mountain Region 1601 Lind Avenue, SW Renton, W A 98057 Re: Leading Edge Aviation, Inc.-Final Notice ofProposed Civil Penalty FAA Case No. 2011 NM 070089 Dear Hearing Docket Clerk and Mr. Harper: This correspondence is to advise the FAA that Leading Edge Aviation, Inc. hereby requests a hearing in connection with the above referenced Final Notice ofProposed Civil Penalty, a copy of which is enclosed. Also, this correspondence is to advise the FAA that Leading Edge Aviation, Inc. has retained the law firm ofChuhak & Tecson, P.C. to represent it in connection withthis matter. Sincerely,

Travis Warthen Registered agent for Leading Edge Aviation, Inc.

1817918\1\99999\99999