### UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF NORTHEASTERN AVIATION CORP.

Case No. 2012EA110030

FDMS No. FAA-2012-1264

Judge 

### I.E. Sullivan

ANSWER TO AMENDED COMPLAINT



### Respondent Northeastern Aviation Corp. ("Respondent"), by its undersigned counsel,

hereby answers the Amended Complaint ofthe Federal Aviation Administration

("Complainant") as follows:



### I.

Respondent neither admits nor denies being "advised through a Final Notice of Proposed

Civil Penalty that the FAA proposed to assess a civil penalty in the amount of $5,225" as alleged

in Section I of the Amended Complaint, except denies that it violated any statute or regulation,

committed any wrongdoing, or is subject to a civil penalty in any amount. Respondent admits

that on December 24, 2012, it submitted a written demand for a hearing.



### II.

1. Respondent admits the allegation contained in paragraph 1 of Section II of the

Amended Complaint (that Northeastern was the holder of a Part 135 Air Carrier On demand

CertificateNumberAOYA206C). 

# RECEIVED

FEB 2 2 2013



# HEARING DOCKET

### 2. Respondent admits the allegations contained in paragraph 2 of Section II of the

Amended Complaint (that "On or about August 23, 2011, AOYA assigned pilot, one Michael

Kalish, to act as pilot-in-command of a Part 135 flight in a Gulfstream Givx aircraft,

identification number N451CM, on a flight from Teterboro Airport, NJ, to San Francisco, CA),

except otherwise denies that it violated any statute or regulation, or**c~mmitted** 

### any wrongdoing

to the extent alleged therein.

3. Respondent denies the allegations contained in paragraph 3 of Section II of the

Amended Complaint.

4. Respondent denies the allegations contained in paragraph 4 of Section II of the

Amended Complaint.

III.

Respondent denies the allegations contained in Section III of the Amended Complaint,

and respectfully refers all issues of law and applicable regulations to the Administrative Law

Judge assigned to this action and proceedings.

IV.



### 1.. Respondent denies the allegations contained in paragraph 1 of Section IV of the

Amended Complaint, and respectfully refers all issues oflaw and applicable regulations to the

Administrative Law Judge assigned to this action and proceedings.

2. Respondent denies the allegations contained in paragraph 2 of Section IV of the

Amended Complaint.

Defenses & 

### Affirmative Defenses

First Defense/ Affirmative Defense

### On August 22, 2011, pilot Michael Kalish flew four check rides for Sundance Aviation

with the FAA. The last check ride started at 1405 UTC and ended at 1445 UTC (See 

### Exhibit 1 ).

At that time, Respondent was not aware of Mr. Kalish's flight activity for Sundance Aviation.

Mr. Kalish did not report this flying time to Respondent Mr. Kalish should have entered his

flight activity for Sundance Aviation on his Northeastern Flight and Duty Time Record as

required by Respondent's procedures. On August 23,2011, Mr. Kalish reported for duty at 0130

UTC to fly a Part 135 charter flight for Respondent (See 

### Exhibit 2).

Mr. Kalish's rest period between his flights for Sundance and Respondent was 10 hours

and 15 minutes. However, through a clerical error, 

### Mr. Kalish mistakenly entered 1600 UTC as

his duty off time in the Sundance Aviation Pilot Duty and Flight Time Record.



### Mr. Kalish has affirmed that he had more than 10 hours of rest, in compliance with

applicable regulations, before accepting the assignment for Respondent on August 23, 2011, and

that he had made a clerical error (See 

### Exhibit 3). 

### Mr. Kalish told FAA inspectors that his flight

for Sundance Aviation ended at 1445 UTC; and 

### Mr. Kalish also has indicated that FAA

inspectors confirmed this time 

### (See id.).

Second Defense/ Affirmative Defense



### Respondent takes seriously its duty to make sure that pilots assigned to its flights comply

with all applicable regulations. Respondent requires pilots to report any Part 135 flying activity

that would interfere with the required rest period before accepting an assignment. At the time,

however, Respondent was unaware that 

### Mr. Kalish had not complied with the requisite rest

period when it assigned the subject flight to Mr. Kalish on August 23, 2011. Respondent did notviolate the applicable rest-period regulation, because Mr. Kalish did in fact satisfy the required

rest time, despite the clerical error.



### Third Affirmative Defense

Complainant fails to state a cause of action or claim upon which relief can be granted.



### Fourth Affirmative Defense

Complainant's allegations as set forth in the Amended Complaint, which are expressly

denied, are due to the affirmative, wrongful, improper, unreasonable, fraudulent, illegal and

inequitable conduct, breaches of duty, lack of diligence, poor judgment, misconduct or omissions

by other parties, persons or entities not under Respondent's control.



### Fifth Affirmative Defense

Complainant's allegations, which are expressly denied, are the result, in whole or 

### in part,

from intervening, superseding, affirmative, wrongful, improper, unreasonable, fraudulent, illegal

and inequitable conduct, breaches of duty, lack of diligence, poor judgment, misconduct or

omissions by other parties, persons or entities not under Respondent's control.



### Sixth Affirmative Defense

Complainant's claims may be barred, in whole or in part, by the doctrines of collateral

estoppel and/or 

### res judicata.

Seventh Affirmative Defense

Complainant's claim may be barred, 

### in whole or in part, by the failure to join a necessary

and/or indispensible party.

I



### Eighth Affirmative Defense

At all times relevant to the allegations set forth in the Amended Complaint, Respondent

has acted in good faith and complied with all applicable statutes and regulations.Ninth Affirmative Defense



### Respondent reserves the right to assert and rely upon such other and further defenses as

may be supported by the facts to be determined by full and complete discovery.

WHEREFORE, 

### Respondent Northeastern Aviation Corp. respectfully requests that the

Amended Complaint be dismissed with prejudice, and that it be awarded, fees, costs, expenses,

and such other and further relief as is just and proper.

Dated:

February2/, 2013

Respectfully submitted,

Eckert Seamans Cherin & 

### Mellott, LLC

Evelyn D. Sahr, Esq.

James G. Ehrig, Esq.

1717 Pennsylvania Avenue, N.W., 12th Floor

Washington, DC 20006

(302) 425-0430

Fax: (302) 425-0432

esahr@eckertseamans.com

jehrig@eckertseamans.com

Attorneys for Respondent

Northeastern Aviation Corp.. .......... .. ..... . .. ............ . '

. . .. . . ..



# EXHIBIT 1AIRCRAFTFLIGHTLOG-FUELFromNo.ofPexFitUP-DATEI91Code!5P.TIME.UFTOUT•1€1??--?S1JTo:RIJ;-/OS'J2III·-rTo:I'}HJ31[I7To:L5Plts4o4III....,.To:fi/J.:,i4of"5ITo:6To:7ITo:(A}Aeromedical(P)Positioning(C)Charter(0}Owne;1TransportiTiTralnlnoirvflMalntanance_lS)Sa!esJlemoiRlRenaCarefuOyPrinttheNumbersAIRCRAFTHOURSAIRCRAFTF!-IGHTLOGForm86-401c(01127104)File:B5-4D1.doc...............··-....;............-·r·-·A.,t·n".·..·r}!r.-..f1.._..,....·VJzato._;·L...f:r1:...11.4.•..-..•(J#"'·-T!ME(UTC}FlightBlockIFRNightI•!IGHTTimeTimePilotTypeofTimeTimeFlyingApproachHobbsOffHobbsOnTIMEIN(1Gths)(10ths)•T/0LdgsI(}o,z.l'lurr.ri,5/'1!Cthf'JildJZV·8rJ.etoJ?,'2.il1rct'JtJ-J'fttrJS-:'7-.41'2lr'"<4til'!J3/.2JI114f']'I,2.I/f&>f51Pr\./ITOTALI,.ENGINEVORCHECKDUE@r!rlrrIIDATE___TYPE:AIR_GNDVOTTimeCyclesN0.1VORNO.2VORcertifythattheenlliasonthislogeretrueandecquratetothebestofmyknowledge:Date:8/22/r/?!fllc

# EXHIBIT2DUJ)'STAJUS•PlaceanXInthaappropri•t•oaJumnS:SchvduledrarDFlightNS=NoJSdledufedforaFlightRemorlnOVemighlorl:ayovero=otr(Vat:ation,Sick.PersonalDay,ale.}A:1:1!AdminlslratlveOLIIy{OfflceWori(,.Maatfng,Sk:."WG•Trainln.s(Schoolcrtcompeny}NORTHEASTERN····ilvit..TioNcoRFi.-···AIRCRAFT.DllTYSTATUSDUTYTl:yPILOTFUGHTTIME""""'TAILIIFARo•'.._•""'"---""_.,_""-""•-'TOTAL-·--·---TOTALWTAlSle1f#NsIRoNIsmoNjoIAITNGOC!TOTAL!Xx0.00.00.0.Q.;QQ_0:000.0x0:000.00,0xO:DO0.00.0x0:00o.oo.ox0:000.00.0x0:000.00.0xxo.o0.0.Q.;QQ_0:000.00,0x0:00o.o0.0xO:OO0.00,0xO:Doo.o0.0xO:Oo0:00.0xD:iiO0.00.0xD:iiO0.00.0XIIXI0.0.1:.iO:Oo11:4517:005:15II1.40.01.4X0:000.01.4:=c18:0022:304:301.81.83.2Xo:oo0.03.2xO:Oo0,03.2xI_,........,0:000.03.2IIXX6.40.01;3Q14:4513:1516.4I'-./0:009.69.8JO:OO0.010:30I5.95.9zrIIXIIIIIIIIIIo:ooIIIIo.oI15.528IIXIIIIIIIIIIo:ooIIIIo.oI15.529IIXIIIIIIIIIIo:ooIIIIo.oI15.530IIXIIIIIIIIIIo:ooIIIIo.oI15.5II.lfI.LI..L.lJ....I....·:,I..>·..........-:......·.·..·..-.r'·DELAYCODES•1=ATCDelay2:WeaUterDehty3=LalaArrivalPAX/RelumLegPt.51-41!1MaintenanceDelayS=AUgmentedem.RONS!Tl!&COMMENTS""-"'............cYULCYUl......y.....TOTA(IocOMMENTS

# EXHIBIT3Submitted by: Michael Kalish

Certificate #:1729649 Statement to Northeastern Aviation Corp.

Re: _Discrepancy in Record of Rest Period

On August 22, 20111 flew Sundance Aviation aircraft N345MJ for the purpose of conducting,a Part

135.293,297,299 check ride, I blocked In after the check ride at 1445 UTC and left the airport off duty at

1515 UTC.

I reported for duty to fly a Part 135 charter for Northeastern Aviation on the Gulfstream N451CM 10

hours and 15 minutes after going off duty from the**previ~s** flight on N345MJ.

When I filled out the Sundance Aviation flight and duty log I inadvertently entered'1600 UTC for the duty

off time from the Sundance Aviation check ride. When I filled out the Northeastern Aviation flight and

duty log I copied the information from the Sundance Aviation log and carried over the mistake to the

Northeastern log again entering the**wr~ng** time of 1600.

The flight and duty records from both Sundance Aviation and Northeastern Aviation are wrong because

of my clerical error. I knew at the time that I reported for duty for the Northeastem.charter that I did

have more than 10 hours of rest between the two flights. I told the FM about this when they

interviewed me and I again confirm in this statement that this was the case.

### CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing was served by Federal

Express this 22nd day of February 2013 on:

Zachary M. Berman, Esq., Complainant's Counsel

Federal Aviation Administration

Office of Regional Counsel

1 

### Aviation Plaza

Jamaica, New York 11434

(718) 553-3258

Fax: (718) 995-5699

Hon. 

### I.E. Sullivan, Administrative Law Judge

Office ofHearings, M-20

U.S. Department of Transportation

1200 New Jersey Avenue, S.E. (Ell-310)

Washington, D.C. 20590

(202) 366-2132

Fax: (202) 366-7536