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U.S. DEPARTMliNT01' TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C , _^ g ^ ^"v 

IN THE MATTER OF MAY ' '• 2 ^ 

BEARING DOCKET EMPIRE FLIGHT ACADEMY 

Respondent 

FDMS NO. FAA-2010-0290 

HONORABLE RONNIE A. YODKR 

CHIEF ADMINISTRATIVE LAW JUDGI 

Hearing Date: NONE ASSIGNED 

Hearing Location: NONE ASSIGNED 

ANSWER AND AFFIRMATIVE DEFENSES 

COMES NOW, EMPIRE FLIGHT ACADEMY (hereinafter "EMPIRE), by and through 

undersigned counsel, pursuant to Rule 209 ol'ihc Rules orPractice (14 C.F.R. § 13.209), and 

hereby files the following Answer and Affumative Defense.? to the Complaint dated April 8, 

2011, filed in this matter. 

ANSWER 

1. EMPIRE denies the allegations contained in paragraph 1 of the Complaint. 

2. EMPIRE lackis knowledge or information sufficient to form a belief as to the truth or 

falsity of ihc allegations contained in paragraph 2 of the Complaint and therefore, denies 

same and demands strict proof thereof 

3. EMPIRE lacks knowledge or information sufficient to form a belief as to the truth or 

falsity of the allegations contained in paragraph 3 of the Complaint and therefore, denies 

same and demands strict proof thereof. 
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4. EMPIRE denies the allegations contained in paragraph 4 of the Complaint. 

5. EMPIRE lacks knowledge or information sufficient to forni 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. EMPIRE denies the allegations contained in paragraph 6 of the Complaint. 

7. EMPIRE lacks knowledge or information sulTicient to form a belief as to the truth or 

falsity of the allegations contained in paragraph 7 of the Complaint and therefore, denies 

same and demands strict proof thereof 

8. EMPIRE lacks knowledge or information sufficient to form a belief as to the truth or 

falsity of the allegations contained in paragraph 8 of the Complaint and therefore, denies 

same and demands strict proof thereof 

9. EMPIRE lacks knowledge or information sufficient to form a belief as to the truth or 

falsity of the allegations contained in paragraph 9 of the Complaint and therefore, denies 

same and demands strict proof thereof 

10- EMPIRE denies the allegations contained in paragraph 10 of the Complaint. 

11. EMPIRE denies that it violated 14 C.F.R. §91.405(b). 

12. EMPIRE denies that it violated 14 C.F.R. §91.407(a)(1). 

13. EMPIRE denies thai ii violated 14 C.F.R. §91.407(ct)(2). 

14. EMPIRE denies 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, pursuant to or 49 U.S.C. 

§46301(a)(5), it is liable for a civil penalty not to exceed $11,000 for each of the 

violation.s alleged. 

15. EMPIRE denies thai under the facts and circumstances of this case, a civil penalty of 
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$15,300.00 is appropriate. 

16. Any matter not speciReally admitted by EMPIRE shall be deemed denied. 

AFFIRMATIVE DEFENSES 

1. EMPIRE FLIGHT ACADEMY was not the owner of the aircraft in question. 

2. EMPIRE FLTGH'f ACADEMY was not the operator of the aircraft in question. 

3. EMPIRE FLIGHT ACADEMY is not the entity that performed the aircraft maintenance 

in question. 

4. EMPIR E FLIGHT ACADEMY relies upon the affmnative defense of reasonable 

reliance. 

5. In detemiining the civil penalty amount, ihc 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 entity's 

ability to stay in business; and (7) other matters as justice may require. Sec 49 U.S.C. 

§46301(e)(2); See also Fol.som's Air Service. Inc., FAA Order No. 2008-11 (November 6, 

2008), p. 11. 

6. In determining the civil penalty amount, the Complainant has failed t(^ determine whether 

the violation was inadvertent or deliberate. 

7. In detemiining the civil penalty amount, the Complainant has failed to consider ilie 

Respondent's size, particularly in determining the alleged offender's ability to ab.sorb the 

sanction. 
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8. 'fhe proposed civil penalty fails to rellect the totality of the circum.'itances surrounding 

the violations. See folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6, 

2008), p. 12: Eastern Air Center, Inc., FAA Order No. 2008-3 (January 28, 2008). 

9. Finding multiple violations for the same offen.se would constitute '"piling on' fihat] 

should be avoided except under the most egregiou.s circumstances." In the Mailer of 

Carr, FAA Order No. 1998-2 at 11-12 (March 12, 1998). 

10. [:;MPIRE FLIGHT ACADEMY does not have the financial ability to pay the proposed 

civil penally. 

11. The proposed civil penalty would have a detrimenial effect on the ability of EMPIRE 

FLIGHT ACADEMY to continue doing business. 

12. 'ihe Federal Aviation Administration's (FAA's) interpretation of its Federal Aviation 

Regulations in this case is arbitrary, capricious, an abuse of discretion, or othci"wise not in 

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

(8th Cir. 1999). 

13. The FAA'S interpretation of its aviation regulations is unconstitutionally vague. See 

Thomas v. Hinson, 74 F.3d 888, 889 (8th Cir. 1996); see aJ.50 Trans States Airlines, Inc. 

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

24128 at 53-55. 

14. The FAA'S application of its Federal Aviation Regulations in this case is contrary to the 

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

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

515 (1988). See also Trans States Airlinas, Inc. v. FAA^ 439 F.3d 863, 864-865 (8th Cir. 

2006). 
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15- EMPIRE; FLIGH T ACADEM Y asserts that the Complainant has failed to state a elaini 

upon which the relief requested may be granted. 

16. EMPIRE FLIGHT ACADEMY asserts that the Complainant lacks substantial basis in 

law and fact to continue pro.secution of this matter ag^i^i it. 

Dated this 5th day of May 2011. 

Respcctfulfy^ubm itted. 

5.Y S. WINTON, ESQ. 

ition Law Firm 

^search Court, Suite 450 

^ville, MD 20850 

Tel: (301) 294-8550 

Fax:(301)294-2525 

Greg(2^^Aviationl..awExperts.com 

Counsel for Respondent 
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CERTIFICATE OF SERVICE 

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

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

Aiicntion: Hearing Docket Clerk, AGC^30 

Wilbur Wright Building 

Federal Aviation Administration 

800 hidependence Avenue, S.W. 

Room 2014 

Washington, D.C. 20591 

1 hereby certify that I have this date sent via facsimile and first class mail a copy of the foregoing 

Answer and Affirmative Defenses addressed to: 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

U. S. Department of Transportation 

1200 New Jersey Ave., S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

Tel: 202 366-3212 

Fax: 202 366-7536 

Zachary M. Berman, Esq. 

F AA Eastern Region, AEA-7 

1 Aviation Plaza, Room 561 

,Tamaica,NY 11434 

Tel; 718 553-3258 

lax: 718 533-5699 

Dated this 5th day of May 2011. 

Respect. 

GREGORY S. WINTON, ESQ. 

The Aviation Law Firm 

One Research Court, Suite 450 

Rockville, MD 20850 

Tel; (301) 294-8550 

Fax:(301)294-2525 

Greg(rt),AviationLawExpcrts.com 

Counsel for Respondent