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_ • . 1 I L ' ' • : 1 " • ' • 'J 

U-S:. IpEPARTMENT OF TRANSPORTATION r^.^-" 

FEDERAT AVIATION ADMINISTRATION 

m25m 

Ha'ARiNG DOCKET 

) 

In ihc Maiter of Wisconsin Aviation, Inc. ) Judge Richard C, Goodwin 

) 

) FAA. Docket No. 2007S W910050 

) DMS No. 2010-0542 

AGENCY'S RESPONSE TO MOTION TO DISMISS 

Pursuant to 14 C.F.R 13.218(d), the Federal Aviation Adminislration (FAA) 

hereby files its Response Lo Respondent's Motion to Dismiss in the above-captioned 

matter, and .states as follows: 

Respondent assert that this case should be dismissed on the grounds that (1) the 

length of time the case has been pending is excessive; (2) the agency failed to answer all 

ol"Respondent's questions; (3) the four individuals initially hired/transfeired do not faJl 

under the auspices of 14 C.F.R. Part 135.251(a) or 14 CFR Part 121 Pari 121, Appendix 

I; (4) the four employees were drug tested and negative results obtained prior to their 

hiring/iran.sferring from non-salety-sensitive fiinctions to safety-sensitive functions; and 

(5) there were no Pan 121/Part. 135 drug-related regulations violated. Each argument 

fails. 

First, Respondent appears to argue this matter is barred by at the doctrine of 

lache.s. The elements of a laches defense arc inexcu.sable delay in asserting a right or 

claim, and undue prejudice to the other party resulting from that delay. Armco. Inc. v. 
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Armco Buri/lar Alarm Co., Inc. 693 F. 2d 1155, 1161 (5"" Cir. 1982); Gull Airborne 

Instruments. Inc. v. Wcinbertier. 694 F. 2d 838, 843 (D.C. Cir. 1982). The alleged 

violations occurred on May 25, 2005, September 11, 2005, May 1, 2006, and February 6, 

2006. After an informal conference, numerous conversations and correspondence, 

Including unsuccessful efforts to settle the case, the agency issued a Final Notice of 

Proposed Civil Penalty on April 27, 2010. Respondent requested a hearing on May 11, 

2010, and the complaint was filed on May 18, 2010. Respondent has not shovvnthat any 

delay was unreasonable or inexcusable. Nor has he shown that the delay cost him crucial 

witnesses or documents. Indeed, over the course of these proceedings. Respondent has 

provided the agency witli numerous records that purport to absolve the company of the 

violations alleged in the complaint. In addition, the defense of laches is not available 

against the United States when acting In its sovereign capacity to enforce a public right or 

protect the public interest. See, U.S. v. St. John's General Hospital. 874 F. 2d 1064, 1071 

(3d Cir. 1989); United States v. Popovich, 820 F. 2d 134, 136 (5"' Cir.) cert, denied. 4R4 

U.S. 976 (1987) See also. In the Matter of John J. Carroll. FAA Order No. 90-21 at 3-9 

(Aug. 16, 1990).) 28 U.S.C. § 2462 is the only applicable statute of limitations and 

imposes a five (5) year limitations period on the government to enforce a civil penalty. 

In the instant case, the complaint was filed within the statutoiy timeframe. In short, 

Respondent has Ikiled to establish the elements of a laches defense. 

Second, although, the undersigned discus.sed the applicable regulations in this 

matter with representatives of the Respondent during and after the informal conference, 

any outstanding questions regarding the regulations are not a ba.sis to dismiss the 

complaint. 
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Third, whether the individuals identified in the complaint are covered employees 

in accordance with 14 C.F.R 135-(a) and 14 C.F.R. Part 121, Appendix I is a question of 

fact that must be decided by the administrative law judge. Furthermore, Respondent has 

already admitted that at least one employee identified in the complaint may have 

performed a .safety-sensitive function prior to receiving a drug test in accordance with 14 

C.F.R. Pan 121, Appendix I. Sec Exhibit A. 

Fourth, whether the individuals identified in ihe complaint were dnig ttjsied and 

negative results obtained prior to their hiring/transferring from non-safcty-.sensitivc 

functions to safety-sensitive functions is a question of fact to be decided by the 

administrative law judge. 

Finally, whether regulations referenced in 14 C.F.R. Part 135 and 14 C.F.R. Part 

121 were violated are ultimate issues of law to be determined by the administrative law 

judge. In sum. Respondent has merely summarized what he intends to prove dui-ing the 

hearing in this matter and has not provided grounds to dismiss the complaint. At the 

hearing, KcspondenL will be afforded the opportunity to present testimony and offer 

exhibits into evidence to support his position that he did not violate the regulations 

alleged in the complaint. 

WIIHREFORE, the FAA respectfially reque.sts that Respondent's Motion to Dismiss be 

denied. 

Peter J Lynch 

Assistant Chief Counsel 

for Enforcement 

A^mifllirKillingham 

Office of the Chief Counsel 

(202) 267-7728 
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CERTIFTCATE OF SERVICE 

1 hereby certify that the foregoing Agency's Response to Motion lo Dismiss, in the 

matter of Wisconsin Aviation, Inc. FAA Ca.se No. 2007SW910050 has been mailed this 

date by Certified Mail-Return Receipt Requested and to: 

Jeffrey D. Baum 

President/CEO 

Wisconsin Aviation, Inc. 

1741 River Drive 

Walei-lown, WI 53094 

Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

US. Department of TransporLation 

1200 New Jersey Avenue, SE. 

East Building, Ground Floor, Room El2-320 

Washington, D.C. 20590 

The original and one copy was also hand delivered to the Hearing Docket at: 

Hearing Docket, Room 2014, AGC-430, 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wiishington, D.C. 20591 

^(k^M^a.- lOoViv 

June 24, 2010 
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EXHIBIT A 
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Additional In formation and Explanations 

Relative to Case #2007SW910050 

In the case of Mr. Adam L. West (reference paragraphs 14 and 15): 

Initial-f:lired, Part-Time Position Line/Ramp Technician 

Date of Initial Hiring 11/01/05 

Date Transfenred to Full-Timc Position 02/06/06 

(Part-Time Line/Part-Time Maintenance) 

Date Transferred to Part 91 (non-Safety-Sensiiive) 02/06/06 

Date Administered Drug Test 02/28/06 

Date Negative Drug Test Result Received 03/02/06 

Date Assigned to Part 135 (Safety-Sensitive Position) 03/02/06 

Supporting Documents: 

Mr. West's TotaWBO Billable Hours Report, 02/06/06 through 03/02/06 (Attachmeni 5a). 

As shown above, Mr, West was initially hired as a Line/Ramp Technician on a part-time basis. 

Because of his knowledge and work ethics, he was hired ftill-time with a split assignment that 

simultaneonsly included line tasks and engaging in our apprentice (shadow) program in the 

maintenance department, as he is pursuing a career in missionaty aviation. Mr. West wjis to 

apprentice and learn, but in an oversight and unbeknown to him, may have performed a task 

tmder the direct supervision of a qualified (and tested) technician on one aircraft (fiom 02/07/06 

throtigh 02/16/06) that is listed on our charter certificate (Attachment 5b). This aircialL, 

N214PN, was flown 90H-% Part 91, and this may have caused some confijsion that led to the 

oversighL This was prior to having a drug test administered to him or the negative results thereof 

received. All other aircraft Mr. West apprenticed with prior to receipt of his negative drug test 

result were Part 91. On 03/02/06, Mr. West worked on N441BW, a Part 135 aircraft, after we 

received his negative drug test result. 

Mr. West's Time Cards for the Period 02/06/06 through 03/02/06. 

His time clock records are attached at Attachment 5c. 

Enclosure 5 
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11:45AM 

Wisconsin Aviation, Inc. 

Billable Hours Report 

For The Period: 2/06/2006 Through: 3/02/2006 

Page: 1 

West, Adam L 

Pay Rale: 0 Shop Rate 

Reference #yTvpe 

06-0024 S 

06-0024 S 

06-0024 S 

06-0024 S 

06-0024 S 

06-0024 S 

06-0024 S 

06-0024 S 

06-0024 S 

06-0024 S 

06-0024 S 

06-0073 S 

06-0073 S 

06-0024 S 

06-0072 S 

Date 

2/17/2006 

2/17/2006 

2/27/2006 

2/27/2006 

2/27/2006 

2/27/2006 

2/28/2006 

2/28/2006 

. 3/01/2006 

3/01/2006 

3/01/2006 

3/01/2006 

3/01/2006 

3/02/2006 

3/02/2006 

Customer i\ 

Badger Midwest h^oldings i_LC (Mainl) 

Badger Midwest Holdings LLC (Maint) 

Hours For 2/17/2006 

Badger Midwest Holdings LLC (Maint) 

Badger Midwest Holdings LLC (Maint) 

Badger Midwest Holdings LLC (Maint) 

Badger Midwest Holdings LLC (Maint) 

Hours For; 2/27/2006 

Badger Micfwest Holdings LLC (Main!) 

Badger Midwest Holdings LLC (Maint) 

Hours For 2/28/2006 

Badger Midwest Holdings LLC (Maint) 

Badger Midwest Holdings LLC (Maint) 

Badger Midwest Holdings LLC (Maint) 

Sponsler Frederic L Trustee 

Sponsler Frederic L Tnjstee 

Hours For: 3/01/2006 

Badger Midwest Holdings LLC (Maint) 

WA:Charter Maint (Turbine) #7125.2 

Hours For 3/02/2006 

Hours For Pay Rate: 0 Shop Rate 

Pay Rate: Basic Pay/Line 

Reference #/Type 

06-0044 S 

06-0044 S 

06^0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

08-0044 S 

06-0044 S 

06-0044 S 

05-0044 S 

06-0044 S 

Date 

2/07/2006 

2/O7/20O6 

• 2/Oe72'0d6 

2/08/200B 

2/09/2006 

2/09/2006 

2/10/2006 

2/10/2006 

2/10/2006 

2/10/2006 

2/13/2006 

2/13/2006 

2/13/2006 

2/13/2006 

2/13/2006 

Customer 

Rhilmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Hours For: 2/07/2006 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Hours For: 2/06/2006 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Hours For 2/09/2006 

Philmar LLC (Maintenance Accl) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Hours For. 2/10/2006 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Hours 

2.12 

1.43 

3.55 

1.83 

1.01 

1.00 

0.17 

4.01 

1.68 

2.38 

4.06 

1.88 

0.30 

1.63 

2.00 

-2.00 

3.86 

2.04 

0.90 

2.94 

18.42 

Hours 

1.54 

2.28 

3.82 

2.02 

0.68 

2.70 

2.22 

1.46 

3.68 

0.62 

1.00 

1.32 

0.43 

3.37 

1.46 

0.32 

0.48 

0.48 

0.38 

Aircraft Paid? 

N199MA 

N199MA 

N199MA 

N199MA 

N199MA 

N199MA 

N199MA 

N199MA 

N199MA 

N199MA 

N199MA 

N56FS 

N56FS 

N199MA 

N441BW 

Aircraft Paid? 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

hJ214PN 

N214PN 

N214PI^ 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

Attachment 5a 
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11:45AM 

Wisconsin Aviation, Inc. 

Billable Hours Report 

F<ir The Period: 2/06/20O6..Thrpugh: 3/02/2ft06. 

Page: 2 

Hours For 2/13/2006 

06-0044 

06-0044 

06-0044 

06-0044 

06-OD44 

06-0044 

S 

S 

S 

S 

S 

S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0044 S 

06-0024 S 

06-0065 S 

06-0065 S 

2/14/2006 

2/14/2006 

2/14/2006 

2/14/2006 

2/14/2006 

2/14/2006 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Hours For, 2/14/2006 

2/15/2006 Philmar LLC (Maintenance Acct) 

2/15/2006 Philmar LLC (Maintenance Acct) 

2/15/2006 Philmar LLC (Maintenance Acct) 

2/15/2006 Philmar LLC (Maintenance Acct) 

Hours For. 2/15/2006 

2/16/200S 

2/16/2006 

2/16/2006 

2/16/2006 

2/16/2006 

Philmar LLC (Maintenance Acct) 

Philmar II-C (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

Philmar LLC (Maintenance Acct) 

06-0024 S 2/20/2006 

HoursFor -2/16/2066— 

Badger Midwest Holdings LLC (Maint) 

Hours For 2/20/2006 

2/21/2006 

2/21/2006 

2/21/2006 

Badger Midwest Holdings LLC (Maint) 

BJ Aviation 

BJ Aviation 

06-0065 S 2/22/2006 BJ Aviation 

06-0064 S 2/23/2006 Conquest LLC (MAINT) 

06-0054 S 2/23/2006 Conquest LLC (MAINT) 

06-0063 S 2/24/2006 Schachtner, Charies 

06-0063 S 2/24/2006 Schachtner, Charies 

06-0063 S 2/27/2006 Schachtner, Charies 

Hours For: 2/27/2006 

.. .Hours_For..Pay Rate:_Basic Pay/Line 

Pay Rate: SI Break 

Reference #/Type Pats Customer 

3.12 

1.39 

0.55 

0.24 

0.89 

0.26 

0.26 

3.59 

0.24 

1.86 

0.71 

0.77 

3.58 

0.36 

0.32 

1-27 

0.30 

1.53 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

N214PN 

-3:78 

1.48 N199MA 

1.48 

2.27 

2.27 

1.68 

Hours For: 

Hours For. 

Hours For: 

Hours For 

2/21/2006 

2/??/2006 

2/23/2006 

2/24/2006 

6.22 

0.44 

0.44 

1.13 

1.50 

2.63 

2.15 

1.90 

4.05 

0.26 

N199MA 

N88646 

N88646 

N88646 

N92JQ 

N92JQ 

N51147 

N51147 

N51147 

0.26 

42-72 _.. 

Hours Aircralt Paid? 

06-0057 S 2/07/2006 Wa:Shop Internal Service 0.26 

Hours For 2/07/2006 

06-0057 S 2/08/2006 Wa:Shop Internal Service 

0.26 

0.38 

Hours For: 2/08/2006 

06-0057 S 2/09/2006 Wa:Shop Interna) Service 

0.38 

0.32 
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Run: 5/30/2007 WiSCOHSln AvIatlOn, Inc. page: 3 

11:45AM Billable Hours Report 

For The Period: 2/06/2006 Through: 3/02/2006 

06-0057 S 

06-0057 S 

06-0057 S 

06-0057 S 

06-0057 S 

06-0057 S 

06-0057 S 

06-0057 S 

06-0057 S 

06-0057 S 

06-0057 S 

06-0057 S 

06-0076 S 

05-0076 S 

-

Hours For 

2/10/2006 Wa:Shop Internal Seivice 

Hours For. 

"2/1V20'66 Wa:SFop Intemal Service 

Hours For. 

2/14/2006 Wa:Shop Internal Service 

Hours For: 

2/15/2006 Wa:Shop Intemal Service 

Hours For: 

2/16/2006 Wa:Shop Internal Service 

Hours Fon 

2/17/2006 Wa:Shop Intemal Service 

Hours For 

2/20/2006 Wa;Shop Intemal Service 

Hours For 

2/21/2006 Wa:Shop Intemal Sen/ice 

Hours For: 

2/22/2006 Wa:Shop Intemal Service 

Hours For 

2/23/2006 Wa-Shop Internal Service -

Hours For; 

2/24/2006 Wa.Shop Intemal Service 

Hours For 

2/27/2006 Wa:Shop Intemal Service 

Hours For: 

3/01/2006 Wa:Shop Intemal Service 

Hours For: 

3/02/2006 Wa:Shop Intemal Service 

Hours For: 

Hours For Pay Rate: SI Break 

Pay Rate: SI2 Admin 

Reference #/Type 

06-0076 S 

Pay Rate: S2 Meet! 

Reference #/Type 

Date Customer 

3/02/2006 Wa:Shop Intemal Service 

Hour^s For: 

Hours For Pay Rate; SI2 Admin 

ng/Training 

Date Customer 

2/09/2OO6 

2/10/2006 

2/13/2006 

2/14/2006 

2/15/2006 

2/16/2006 

2/17/2006 

2/20/2006 

2/21/2006 

2/22/2006 

-

2/23/2006 

2/24/2006 

2/27/2006 

3/01/2006 

3/02/2006 

3/02/2006 

0.32 

0.30 

0.30 

'a36 

0.36 

0.22 

0.22 

0.35 

0.35 

0.25 

0.25 

0.25 

0.25 

0.4O 

0.40 

0.22 

0.22 

0.29 

0.29 

- -0:29 • 

0.29 

0.23 

0.23 

0.30 

0.30 

0.38 

0.38 

0.33 

0.33 

5.13 

Hours Aircraft Paid? 

0.35 

0.35 

0.35 

Hours Aircraft Paid? 
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Run: 5/30/2007 Wl'SCOnSin AViatlOn, Inc. page; 4 

11:45AM Billable Hours Report 

For The Period: 2/OS/2006 Through: 3/02/2006 

06-0057 S 2/06/2006 WaiShop Internal Servic^ 4.15 

HoursFor: 2/06/2006 4.15 

06-0057 S 2/08/2006 Wa:Shop Intemal Service 0.87 

Hours For: 2/08/2006 0,87 

06-0057 S 2/10/2006 Wa;Shop Intemal Service 0.09 

06-0057 8 2/10/2006 Wa;Shop Intemal Service 0.16 

Hours For 2/10/2006 0.25 

06-0057 S 2/13/2006 Wa:Shop Intemal Service 0.28 

HoursFor; 2/13/2006 _ _0^28 _ 

06-0057 S 2/17/2006 Wa;Shop Internal Service OJO 

Hours For; 2/17/2006 0.10 

Hours For Pay Rate: S2 Meeting/Training 5.65 

Pay Rate; S4 Shop Cleanup 

Reference #/Type Date Customer ^ . Hours Aircraft Paid? 

06-0057 S 2/23/2006 Wa:Shop Internal Service 09 0 

Hours For: 2/23/2006 0.90 

Hours For Pay Rate: S4 Shop Cleanup 0.90 

HoursFor; West, Adam L 73.17 

Total Hours Reported: 73.17