OG/11/2010 10:28 FAX 2024935142 FAA * DMS @100V004 

U.S. DEPARTMENT OF TRANSFORATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS D ^f^ ' 

tJVED 

MU - 2 2m 

HEAf;;NG DOCKET 

WASHINGTON, D.C. 

TN THE MATTliK OF 

AIR EVAC, INC. 

FAA DOCKET NO. CP10CE0002 

(Civil Penalty Action) 

DMS No- FAA - 2010 - 0024 

v.? L 

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HE' 

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•OCKgf 

IN THE MATTER OF 

AIR EVAC, INC:. 

FAA DOCKET NO. CPlflCEOOOl 

(Civil Penalty Action) 

DMS No- FAA ' 20J 0 - 0022 

- C3 

r~'5 

AIR EVAC EMS'S RESPONSE lO COMPLAINAN J^S ANSWER IN 

OPPOSITION TO RESPONDENT'S MOTION FOR DECISION 

(MOTION TO DISMISS) 

FAA INVESTIGATION 2007CEO30026 

Although the rules of 14 CFR Part 13 Rules of Practice in FAA Civil Penalty 

Proceedings do not specilically allow for a reply they do in many ways incorporate by 

reference the Federal Rules of Civil Procedure which do provide for reply motions. In 

any event, Complainant's Answer in Opposition to Respondent's Motion for Decision 

(Motion to Dismiss) [hereinnHer, "FAA's Opposition"] is so confusing thai it is apt to 

J7ii5]ead the reader, therefore, Respondent respcctfiilly requests that the Court consider 
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this reply. In its opposition, the FAA continually attempts to merge the two actions 

which it initially separated. 

As explained in the Respondent's Motion for Decision, the FAA has brought 

two (2) separate actions against Air Evac EMS Inc., one tliat relates to its Pari 135 

Certificate, FAA investigation 2007CE030026, FAA Docket No. CPlOCROOl; and one 

against its Repair Station's Certificate, FAA investigation 2007CE03O008, FAA Docket 

CP10CE0002. 

Respondent's Motion for Decision involved only the claim against the Pait 135, 

Docket No. CPlOCEOOOl. Wlien the FAA brought the two actions, all of the 

allegations in the Amended Complaints ("Complaints") were the same, except the Part 

135 action claimed that AJJ- Kvac EMS flew Part 91 with an aircraft that was 

unairworthy. The remainder of the allegations in both Complaints related to the 

conduct of the Repair Station and iis mechanic Aaron Rogers, 

Although in its Answers Respondent denied some allegations; for the purpose of 

the Motion for Decision regarding the Part 135 Certificate, Respondent at P. 7, 

"Statement of Uncontroverted Facts," accepted as true each and every factual allegation 

of the FAA in their Complaint in that case. Tlierefore, contrary to the FAA position, 

there can be no i.'isue of material fact arising from Respondent's Answer to the 

Complaint. 

The allegation.s supporting the alleged violation of 14CFR § 135,21 (a) and 

14CFR §135,419(g) were pled against the Repair Station as is clear from comparingH'o 

allegations of the Amended Complaint against the Repair Station. 
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With regard to the remaining allegation of 14 CFR §91.7, operating an 

unairworthy airplane, the FAA omitted an essential fact upon which they bear the proof, 

that movant had knowlcdce of or should have known the aircraft was unainvorthy. 

Swan V. Hinson, 1994 WL 719863 (NTSB) December 28, 1994, 

Under the Rules for Summary Judgment, once there has been sufficient time lor 

discovery and upon motion against a party who fails to make a showing sufficient to 

establish the existence of an essential element to that party's case on which the party 

will bear the Burden of truth, summary judgment is inandatedagainst that parfy. Set 

Celotex Corp, v. Catrett, All U.S. 317, 321 (1986). In this instance, the FAA must 

show by specific facts that Air Evac RMS, Inc.. knew or should have known that the 

aircraft wat; unairworthy. They have not even alleged such facts and certainly have not 

shown by specific facts that Respondent had such knowledge. Since they have not done 

so, Respondent is entitled to summary judgment. 

CONCLUSION 

Since Respondent has not, for the purpose of its Motion, denied any allegations 

raising an issue of fact and the FAA failed to make a sufficient showing on the 

existence of an essential element of its case upon which the FAA will bear the burden of 

truth at trial, Respondent is entitled to dismissal of the Amended Complaint against its 

Part 135 operations with prejudice, and no trial on this matter i.'i warranted. 
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Respectfully submitted. 

COOLING & BERBERS 

1 Wj6i4ain ^ti^et. Suite 24^ 

^isasCity, MO 64105 

Telephone: (816)474-0777 

Facsimile: (816)472-0790 

jramsev(a)coolinKlaw.com. 

ATTORNEYS FOR RESPONDENT 

AIR EVAC EMS, INC. 

CERTIFICATE OF SERVICE 

1 hereby certify that on the 28"' day of May 2010,1 forwarded one (1) copy of the 

foregoing via fax transmission and United States regular mail, postage prepaid to: 

The Honorable Richard C. Goodwin 

Acfminisrrarive I -aw Judge 

Office of Hearings, M-20 

U.S. Depanniemof Tran.'iportation 

1200 New Jersey Avenue, S.E, 

East Building Ground Floor, Room E12-320 

Washington, D.C. 20590 

lAX: 202-366-75-36 

Federal Aviatioa Administration 

800 Independence Avenue, SW 

Wilbur Wright Building, Room 2014 

AtrentJon; Hearing Deckel Clerk, AGC-43 0 

Washingion, D.C. 20.^91 

FAX: 202^93-5142 

Mark G. Camacho 

Senior Enforcement Attorney 

Federal Aviation Administration 

Office of Regional Coun,5el 

901 Locust, Room 506 

Kansas City, MO 64106-2641 

FAX: S16-.129-.3771