IN THE MATIER OF

COASTALAIR TRANSPORT, INC.,
Respondent U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

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### ) ) ) ) ) FAA Docket No. FAA-2011-1005 Judge J.E. Sullivan 

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# ______________________ ) FAA CASE NO. 2010S0700037

RESPONDENTS RESPONSE TO FAA MOTION FOR HEARING ON SANCTION ONLY 

## ( Respondent, Coastal AirTransport files this response to Complainant's Motion for Hearing on Sanctions Only, and in support ofits Motion states:

1. It is appropriate to grant a Motion for Decision on the Pleadings only ifthe moving party demonstrates there are no genuine issues ofmaterial fact at dispute. See Elec. Service v. Pacific Elec. Contractors, 809 F.2d 626, 630(91hCir. 1987.) 2. The law further requires that any inferences made from the facts be made in the light most favorable to the non-moving party. See 

### id. at 631. See also Complainants's Motion, section 1. 3. Complainant's Motion at paragraph 5states that the allegations made in its Complaint are deemed admitted because the Respondent failed to Answer; their position is, accordingly, that because the facts are "deemed admitted" there remain no issues ofmaterial fact and that a judgment in its favor is therefore appropriate.



### ,, 4. Regardless ofthe Complainant's argument, there remain "facts" that cannot be admitted, "deemed" orotherwise, because oftheir impossibility or contradiction to Complainant's own evidence. 5. Examples ofthese facts are embodied in the following allegations: a) Paragraph 2states that shipment was in a non-specification fiberboard box. The Complainant's exhibit (R-1) clearly shows apicture ofsaid box with DOTapproved marking. b) Paragraph 3states that the cargo was unmanifested. Paragraph 8 states that the above shipment was listed and described on the bill of lading. Paragraph 9states that Mike Foster signed the bill of lading describing this shipment. c) Paragraph 4 states that the box was discovered on board Flight 413. This would have been a case ofsmuggling, aserious offense. The statement from CBP Officer Steele contradicts this in that the cargo was presented to Customs inside the airport inspection area.d) Paragraph 6 states that no MSDS packing slips were present. Exhibit (R-2) showscopies of these slips. e) Paragraph 15 states thatthe pilot-in command was not notified as to the nature ofthe cargo before the flight. Capt. Michael Foster was the pilot-in-command, hewas aware ofthe contents, and loaded it into the forward cargo compartment ofthe aircraft. It was not carried in the passenger cabin oron the flight deck as alleged. f) Paragraph 111/16 alleges thatthe cargo was carried in the passenger cabin or on the flight deck. Capt. Foster has stated in e) above thatthis was nottrue. Itwas carried in an approved cargo compartment separated from the passenger cabin.

6. These are notthe only "facts" that cannot be "deemed admitted" because oftheir implausibility. 7. Therefore, regardless ofwhetherfacts have allegedly been "deemed admitted" by the Respondent, because some "facts" on which this Complaint are simply impossible, genuine issues ofmaterial fact remain. Therefore, the Complainant's Motion should not be granted. 8. As an Officer ofthe Court, the Complainant's attorney has a mandate to refrain from alleging these numerous false charges. The Complainant's own evidence has clearly shown these alleged charges to be fabricated. Atty. George has attempted to limitthe Respondent'sdefense through the use ofsanctions. This incident by the Respondent was at most a minor infraction and could have been settled with a letterof reprimand. The Complainant has sought to inflatethe penalties beyond what is clearly reasonable. Because ofthis inappropriate behavior, we once again ask the Court to DISMISS this case. Because ofthe time and expense ofdefendingthis action, we ask for punitive damages in the amount of$59,600.

Respectfully submitted this 5th day of November2012

Michael Foster President Coastal AirU.S. DEPARTMENT OF TRANSPORTATION ; AVIATION

FAA Form 1600-32-1 (9-Sn)



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## O'Q~CERTIFICATE OF SERVICE

I herebycertifythat acopy ofthe foregoing correspondence was mailed by Priority U.S. Mail and facsimile to:

The Honorable J.E. Sullivan- by mail Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJerseyAve, S.E.(E12-320) Washington, D.C. 20590 Tel: 202-366-2132 Fax: 202-366-7536

Rashawn Rich George

- by mail & fax Office ofthe Regional Counsel, AS0-7 Federal Aviation Administration P.O. Box 20636 Atlanta, GA 30320 Tel: 404-305-5200 Fax: 404-305-5223

And the original and one copyto:
U.S. Department ofTransportation Docket Operations, M-30 Room Wl2-140 1200 NewJerseyAve, S.E. Washington, D.C. 20590

# ~ Michael Foster Respondent