U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF Air Medical Resource Group, Inc. Respondent FAA DocketNO. 2014NM070012 (Civil Penalty Proceeding) DMS NO. FAA-2014-0552 ADMINISTRATIVE LAW JUDGE Honorable Richard C. Goodwin Hearing Date: NOT YETASSIGNED Hearing Location: Salt Lake City, Utah 

# RECEIVED SEP t 

## 6 2014 

## HEARING DOCKET

RESPONDENT'S OPPOSITION TO THE AGENCY'S MOTION TO DEEM ALLEGATIONS ADMITTED OR, IN THE ALTERNATIVE, STRIKE RESPONDENT'S ANSWER COMES NOW, Respondent, Air Medical Resources Group, Inc. (hereinafter "AMRG"), by and through undersigned counsel pursuant to Rule 218 ofthe Rules of Practice (14 C.P.R.§ 13.218), and respectfullyrequests that the Court deny, as moot, the Agency's Motion To Deem Allegations Admitted Or, In The Alternative, Strike Respondent's Answer. As a result ofRespondent's filing an Amended Answer and Affirmative Defenses on September 11, 2014, (a copy ofwhich is attached hereto as "Exhibit A"), the Agency's present motionhas been rendered moot. Therefore, Respondent respectfully requests that the Agency's motionbe denied. In support thereof, Respondent states as follows:PROCEDURAL HISTORY 1. OnAugust 18, 2014, AMRG filed a request for hearing pursuantto 14 C.F.R. § 13.16, concerningthe allegations raised in the Agency's Final Notice ofProposed Civil Penalty dated August 6, 2014. 2. OnAugust 26, 2014, the Agency filed a Complaint. 3. On August 27,2014, AMRG filed an Answer and Affirmative Defenses. 4. On September 2, 2014, the Agency filed a Motionto Deem Allegations Admitted, or inthe Alternative, Strike Respondent's Answer. 5. On September 11, 2014, AMRG filed an Amended Answer and Affirmative Defenses. See Exhibit A, attached hereto. ARGUMENT RESPONDENT'S AMENDED ANSWERMOOTS THE AGENCY'S PRESENT MOTION TO DEEM ALLEGATIONS ADMITTED OR TO STRIKE RESPONDENT'S ANSWER. A. RESPONDENT'S AMENDED ANSWER HAS BEEN TIMELY FILED. Pursuant to Rule 13.214 (14 C.F.R. § 13.214), AMRGproperly filed an Amended Answer and Affirmative Defenses on September 11, 2014. Rule 13.214,Amendment of pleadings, states the following in relevant part: (a) Filing and service. A party shall file the amendment with the administrative lawjudge and shall serve a copy ofthe amendment on all parties to the proceeding. (b) Time. A party shall file an amendment to a complaint or an answer within the following: (1) Not later than 15 days before the scheduled date ofa hearing, a party may amend a complaint or an answer without the consent ofthe administrative lawjudge. 2(2) Lessthan 15 daysbeforethe scheduled date ofa hearing, the administrative lawjudgemay allow amendment ofa complaint or an answer only for good cause shown in a motionto amend. 14 C.P.R.§ 13.214. As set forth by Rule 13 .214(b)(1 ), a party may amend its pleading withoutthe consent ofthe lawjudge whenthe amendment is filed not laterthan 15 days before the hearing date. Inthe instant proceeding, no hearing date has been set. Therefore, the Respondent's Amended Answer was timely filed on September 11, 2014. 

### See ExhibitA, attached hereto. 

### B. THE AGENCY'S PRESENT MOTION HAS BEEN RENDERED MOOT BY THE FIRST AMENDED COMPLAINT. The Agency's present motion is moot because the Amended Answer supersedes the original Answer. "As a general rule, an amendedpleading ordinarily supersedes the original and renders itofno legal effect." Young v. City of MountRanier, 238 F.3d 567, 572 (4th Cir. 2001) (citation omitted); see also 6 Charles Alan Wright, ArthurR. Miller & Mary Kay Kane, Federal Practice & Procedure§ 1476 (2d ed. 1990) ("A pleading that has been amended

... supersedes the pleading it modifies

.... Once an amendedpleading is interposed, the original pleading no longer performs any function inthe case ...."). Therefore, as the original Answer has been superseded and nullified, there is no longer a live dispute as to the responses contained therein. Accordingly, any motion concerningthe original Answer is nowmoot.

3CONCLUSION In light ofRespondent's Amended Answer, AMRGrespectfully requests that the Honorable Law Judge deny as moot the Agency's present motion to deem allegations admitted or strike Respondent's answer. Dated: September ll, 2014



### 4 Respectfully submitted, 

# ""· regory S. Winton, Esq. Jared M. Allen, Esq. The Aviation Law Firm 1997 Annapolis Exchange Parkway Suite 300 Annapolis, MD 21401 Tel: (301) 294-8550 Fax: (301) 294-2525 Counsel forRespondentCERTIFICATE OF SERVICE I hereby certifythat I have this date sent via facsimile and byU.S. Mail, postage pre-paid, the foregoing Respondent's Opposition To The Agency'sMotion To DeemAllegations Admitted Or. In The Alternative, Strike Respondent'sAnswer addressed to: ORIGINAL AND ONE COPY Federal AviationAdministration 800 Independence Avenue, SW. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Suite 2W1000 Fax: (202) 493-5142 And, further, that I have this date sentby electronic mail and by U.S. Mail, postage prepaid, a copy ofthe foregoing addressed to: ONE COPY Jeffrey M. Harper, Esq. Office ofthe Regional Counsel FAANorthwest Mountain Region, ANM-7 1601 Lind Avenue S.W. Renton, Washington 98057 Tel: (425) 227-2161 Fax: (425) 227-1007 Jeffrey.harper@faa.gov ONE COPY The Honorable Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave, S.E. (Ell-310) Washington, D.C. 20590 Richard.Goodwin@dot.gov Dated: September 11, 2014

5 lien, Esq. The Aviation Law Firm 1997 Annapolis Exchange Parkway Suite 300 Annapolis, MD 21401 Tel: (301) 294-8550 Fax: (301) 294-2525

# EXHIBIT AU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF Air Medical Resource Group, Inc. Respondent FAA DocketNO. 2014NM070012 (Civil Penalty Proceeding) DMS NO. FAA-2014-0552 ADMINISTRATIVE LAWJUDGE Honorable Richard C. Goodwin HearingDate: NOT YETASSIGNED Hearing Location: Salt Lake City, Utah

RESPONDENT'S AMENDED ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Respondent, Air Medical Resources Group, Inc. (hereinafter "AMRG"), by and through undersigned counsel, pursuantto Rule 209 and Ru1e 214 ofthe Ru1es ofPractice (14 C.P.R.§§ 13.209, 13.214) and hereby files the following Amended Answer and Affirmative Defenses inresponse to the Administrator's Complaint, served onAugust 26,2014. ANSWER I. Section I ofthe Complaint does not contain any allegations requiring a response. II. 1. AMRG admits the allegations contained in section II, paragraphnumber 1 ofthe Complaint.2. AMRG admits only that General Operations Manual (GOM), Revision 03-15-13/R-2

was effective from April29, 2013, through August 18,2014. AMRG lacks knowledge or information sufficientto form a beliefas to the truth or falsity ofthe remainder ofthe allegations contained in section II, paragraph number 2 ofthe Complaint andtherefore, denies same and demands strictproofthereof. 3. AMRG admits only that AMRG's GOM, Revision 03-15-13/R-2, at Chapter 4, Paragraph 4.8, states that "Pilots are responsible to ensure theyrecord all commercial flight time and rest periods in the FlightVector Flight and Duty Tracker within 24-hours ofthe completion ofeach duty period." AMRG lacks knowledge or information sufficientto form a beliefas to the truth orfalsity ofthe remainder ofthe allegations contained in section II, paragraphnumber 3 of the Complaint andtherefore, denies same and demands strictproofthereof. 4. AMRG admits only that Gallup Flying Service, Inc. is the holder ofAir Carrier Certificate No. GNMA391E. AMRG lacks knowledge or information sufficient to form a belief

as to the truth orfalsity ofthe allegations contained in section II, paragraph number 4 ofthe Complaint and therefore, denies same and demands strict proofthereof. 5. AMRG admits only that Mr. Ryan Krissman was qualified to act as pilot-in-command for operations conducted by AMRG under Part 135. AMRG lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe remainder ofthe allegations contained in section II, paragraph number 5 ofthe Complaint and therefore, denies same and demands strict proofthereof. 6. AMRG admits onlythatMr. Ryan Krissman was qualified to act as pilot-in-command for operations conducted by GFS underPart 135. AMRG lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe remainder ofthe allegations contained in

2section II, paragraphnumber 6 ofthe Complaint and therefore, denies same and demands strict proofthereof. 7. AMRG admits the allegations contained in sectionII, paragraphnumber 7 ofthe Complaint. 8. AMRG denies, as stated, the allegations contained in section II, paragraph number 8 ofthe Complaint. 9. AMRG denies, as stated, the allegations contained in sectionII, paragraph number 9 ofthe Complaint. 10. AMRG denies, as stated, the allegations contained in section II, paragraphnumber 10 ofthe Complaint. 11. AMRG denies, as stated, the allegations contained in section II, paragraphnumber 11 ofthe Complaint. 12. AMRG denies, as stated, the allegations contained in section II, paragraph number 12 ofthe Complaint. 13. AMRG denies, as stated, the allegations contained in section II, paragraph number 13 ofthe Complaint. 14. AMRG admits only thatMr. Wysowski was approved to act as a check airman for AMRG in the BE-90 aircraft. AMRG lacks knowledge or information sufficientto form a belief

as to the truth or falsity ofthe remainder ofthe allegations contained in section II, paragraph number 14 ofthe Complaint andtherefore, denies same and demands strictproofthereof. 15. AMRG admits only that Mr. Wysowski was qualified to act as pilot-in-command for operations conducted byAMRG under Part 135. AMRG lacks knowledge orinformation sufficient to form a beliefas to the truth or falsity ofthe remainder ofthe allegations contained in



### 3section II, paragraphnumber 15 ofthe Complaint and therefore, denies same and demands strict proofthereof. 16. AMRG admits the allegations contained in sectionII, paragraphnumber 16 ofthe Complaint. 17. AMRG denies, as stated, the allegations contained in section II, paragraph number 17 ofthe Complaint. 18. AMRG denies, as stated, the allegations contained in section II, paragraph number 18 ofthe Complaint. 19. AMRG denies, as stated, the allegations contained in section II, paragraphnumber 19 ofthe Complaint. III. !(a). AMRG denies that it violated 14 C.F.R. § 135.21(a). !(b). AMRG denies that it violated 14 C.F.R. § 135.63(a)(4)(vii). 2. AMRG denies that pursuant to 49 U.S.C. § 46301(a) and (d), it is subject to a civil penalty not to exceed $11,000 for each ofthe violations alleged. 3. AMRG denies thatunder the facts and circumstances ofthis case, a civilpenalty of $12,000 is appropriate. Any other allegations not specifically numbered by paragraph are hereby denied. AFFIRMATIVE DEFENSES 

### 1. In determining the civil penalty amount, the Complainant has failed to consider (!) the nature and circumstances ofthe violation; (2) the extent and gravity ofthe violation; (3) the respondent's degree ofculpability; ( 4) the respondent's history ofpriorviolations, ifany; (5) the respondent's ability to pay the civil penalty; (6) the effect onthe entity's ability to stay in



### 4business; and (7) other matters asjustice may require. See 49 U.S.C. §46301(e)(2); See also Folsom'sAirService, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 11. 2. AMRG relies upon the affirmative defense ofreasonable reliance. Respondent further

asserts that given the facts ofthis case and the entire circumstances, the alleged violations must be dismissed. 3. Indetermining the civil penalty amount, the Complainant has failed to determine whether the violation was inadvertent or deliberate. 4. Indetermining the civil penalty amount, the Complainant has failed to consider the Respondent's size, particularly in determining the alleged offender's ability to absorb the sanction. 5. The proposed civil penalty fails to reflect the totality ofthe circumstances surrounding the violations. See Folsom'sAirService, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 12; EasternAir Center, Inc., FAA Order No. 2008-3 (January 28, 2008). 6. Finding multiple violations for the same offense would constitute "'piling on' [that] should be avoided except under the mostegregious circumstances." In the Matter of Carr, FAA OrderNo. 1998-2 at 11-12 (March 12, 1998). 7. AMRG does nothave the financial ability to pay the proposed civil penalty. 8. The proposed civilpenalty would have a detrimental effect onthe ability ofAMRG to continue doing business. 9. The Federal Aviation Administration's (FAA's) interpretation ofits Federal Aviation Regulations inthis case is arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance with law. See 5 U.S.C. § 706(2) (A); Watkins v. NTSB, 178 F.3d 959, 961 (8th Cir. 1999).



### 5I0. The FAA's interpretation ofits aviation regulations is unconstitutionally vague. See Thomas v. Hinson, 74 F.3d 888, 889 (8th Cir. 1996); see also Trans StatesAirlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006); Heath v. SEC, 2009 U.S. App. LEXIS 24128 at 53-55. II. The FAA's application ofits FederalAviationRegulations 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 Gardebringv. Jenkins, 485 U.S. 415,430, !08 S. Ct. 1306,99 L. Ed. 2d 515 (1988). See also Trans StatesAirlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006). 12. AMRG asserts that the Complainanthas failed to state a claimupon whichthe relief requested maybe granted. 13. AMRG asserts that the Complainant lacks substantial basis in law and fact to continue prosecution ofthis matter against it. Dated: September II, 2014

6 Respectfully submitted,

egory S. Winton, Esq. Jared M. Allen, Esq. The Aviation Law Firm 1997 Annapolis Exchange Parkway Suite 300 Annapolis, MD 21401 Tel: (301) 294-8550 Fax: (30I) 294-2525 Counsel for RespondentCERTIFICATE OF SERVICE I hereby certify that I have this date sent viafacsimile and by U.S. Mail, postage pre-paid, an original and one copy ofthe foregoing Respondent'sAnswer andAffirmative Defenses addressed to: ORIGINAL AND ONE COPY Federal AviationAdministration 800 Independence Avenue, SW. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Suite 2Wl000 Fax: (202) 493-5142 And, further, that I have this date sentby electronic mail and by U.S. Mail, postage prepaid, a copy ofthe foregoing addressedto: ONE COPY Jeffrey M. Harper, Esq. Office ofthe Regional Counsel FAA Northwest Mountain Region, ANM-7 1601 Lind Avenue S.W. Renton, Washington 98057 Tel: (425) 227-2161 Fax: (425) 227-1007 Jeffrey.harper@faa.gov ONE COPY The Honorable Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave, S.E. (Ell-310) Washington, D.C. 20590 Richard.Goodwin@dot.gov Dated: September 11,2014

# ~r1·/k4 ed M. Allen, Esq. ::v:nLawFirm

7 1997 Annapolis Exchange Parkway Suite 300 Annapolis, MD 21401 Tel: (301) 294-8550 Fax: (301) 294-2525