U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D. C. 

IN THE MATTER OF: 

?BIZ JUL l '1 IC\ 10: l~ 8 

DOCKET NO. FAA-2011-1125 

ELITE AIR, INC. FAA CASE NO. 2010S0150236 

Respondent Judge J.E. Sullivan 

COMPLAINANT'S REPLY BRIEF IN SUPPORT OF COMPLAINANT'S 

MOTION FOR SUMMARY JUDGMENT 

In its response to Complainant's summary judgment motion, Respondent asserts that (1) 

Complainant failed to comply with Federal Ru1e of Civil Procedure 56( a), (2) documents are not 

authenticated, (3) Complainant failed to show the flights were Part 135 flights, (4) Complainant 

failed to show that the blocks left blank by its pilots were required to be completed, (5) 

Complainant violated FAA Order 8900.1, and (6) Aviation Safety Inspector William Meenan 

provided patently false information. All of Respondent's assertions are without merit. 

I. FEDERAL RULE OF CIVIL PROCEDURE 56 

As an initial matter, Respondent misquotes Rule 56 in its response brief. Rule 56 

actually states that a party seeking summary judgment must cite to "particular parts of materials 

in the record, including depositions, documents, electronically stored information, affidavits or 

declarations, stipulations (including those made for purposes of the motion only), admissions, 

interrogatory answers, or other materials." Fed.R.Civ.P. 56( c). The Complainant complied with 

this requirement by citing to Respondent's admissions and other materials. Specifically, 

Complainant cited to Respondent's admission in the Answer that Elite Air's General Operations 

Manual requires its pilots to enter the inspection due dates and times in Form EAI-301. See 

1 
Answer, Paragraph 4. Complainant also cited to Respondent's General Operations Manual and 

relevant Forms EAI-301 to establish that Respondent failed to comply with its General 

Operations Manual. See Exhibit 2; Exhibit 6-8. Therefore, Respondent complied with.Rule 56 

in supporting its motion for summary judgment. 

With regard to Inspector Meenan's unsworn statement (Exhibit 4 to Complainant's 

Motion for Summary Judgment), the statement was merely provided for background to show 

why the FAA began its investigation into Respondent's violation of the Federal Aviation 

Regulations; it was not submitted to prove Respondent's violations in the case. Instead, 

Complainant submitted Respondent's own documents (i.e. Respondent's General Operations 

Manual and relevant Forms EAI-301) to establish Respondent's violation of the Federal Aviation 

Regulations. The Administrative Law Judge does not need to consider the statement to grant 

summary judgment in favor of the Complainant with regard to Respondent's violation of the 

Federal Aviation Regulation Section 135. 21(a). 

II. DOCUMENTS ARE AUTHENTICATED 

Contrary to Respondent's assertion, the relevant Forms EAI-301 were authenticated. 

Specifically, Inspector Meenan authenticated the forms via his certification on the back of 

Exhibits 6-8 that they are true and accurate copies of the Form EAI-301 held by Elite Air. See 

Exhibits 6-8. Furthermore, to the extent Respondent is asserting that the provisions of its 

General Operations Manual (Exhibits 1-2) are not authenticated, Respondent admitted that the 

manual required the pilot-in-command to enter the inspection due dates and times in Form EAI301. See Answer, Paragraph 4. However, out of an abundance of caution, Complainant is 

submitting authenticated copies of Respondent's General Operations Manual and Operations 

2 
Specifications relied upon in the motion for summary judgment. See Exhibit 1; Exhib)t 2; 

Exhibit 3; Exhibit 5.1 

III. RESPONDENT'S FORMS EAI-301 SHOW FLIGHTS WERE PART 135 FLIGHTS 

Respondent's Forms EAI-301 show that Respondent operated seven Part 135 flights as 

alleged in the Complaint. See Exhibits 6-8. The Forms EAI-301 establish that there were (a) 

two Part 135 flights on June 15, 2010, (b) two Part 135 flights on July 10, 2010, (c) two Part 135 

flights on August 11, 2010, and (d) one Part 135 flight on August 12, 2010. Id. Accordingly, 

Complainant has established that Respondent· operated N444CW on seven Part 135 flights as 

alleged in the Complaint. 

IV. RESPONDENT'S GENERAL OPERATIONS MANUAL PROVIDES THAT THE 

MISSING INSPECTION DUE DATES AND TIMES WERE REQUIRED TO BE 

COMPLETED BY THE PILOT-IN-COMMAND 

Contrary to Respondent's assertion, Complainant established that the inspection due 

dates and times missing in the Forms EAI-301 were required to be completed. First, Respondent 

admitted this fact in its Answer. See Answer, Paragraph 4. Second, Respondent's General 

Operations Manual provides that, as part of the preflight duties, the Pilot-in-Command "shall" 

enter the inspection due dates and times in the appropriate blocks of Form EAI-301. See Exhibit 

1, Paragraph 1. Respondent's General Operations Manual also provides an example Form EAI301 and instructions for completing each required block, which requires the missing inspection 

due dates and times to be completed. See Exhibit 2. Taken together, the relevant portions of 

Respondent's General Operations Manual establish that Respondent was required to enter the 

missing inspection due dates and times in the appropriate blocks of Form EAI-301. See Exhibit 

1 Inspector Meenan's certification that the copies are true and accurate copies of Respondent's General Operations 

Manual and Operations Specifications are on the back of the exhibits. There is no Exhibit 4; Complainant is 

maintaining the same exhibit numbers as in the summary judgment motion to avoid confusion. 

3 
1-2. These inspection due dates and times include the APU hours, Next Time Limited, Next 

Cycle Limited, and Next Date Limited blocks in Form EAI-301. Id. 

A review of the Forms EAI-301 at issue in this matter reveals that Respondent did not 

enter the inspection due dates and times as required by its General Operations Manual. See 

Exhibits 6-8. Specifically, Form EAI-301 for June 15, 2010, flights shows that Respondent 

failed to enter (1) the beginning and ending APU Hours, (2) the time for the Next Time Limited 

item due, and (3) the number of cycles of!he Next Cycle Limited item due. See Exhibit 6. Form 

EAI-301 for flights on July 20, 2010, and July 22, 2010, shows that Respondent failed to enter 

(1) the ending APU Hours, (2) the number of cycles of the Next Cycle Limited item due, and (3) 

the date for the Next Date Limited Item due. See Exhibit 7. Finally, Form EAI-301 for flights 

on August 11, 2010, and August 12, 2010, shows that Respondent failed to enter (1) the ending 

APU Hours, (2) the time for the Next Time Limited item due, (3) the number of cycles of the 

Next Cycle Limited item due, and (4)the date for the Next Date Limited Item due. See Exhibit 

8. 

Accordingly, Complainant established ·through Respondent's own admission and 

documents that Respondent failed to enter required inspection due dates and times as alleged in 

the Complaint. Therefore, Respondent violated Federal Aviation Regulation Section 135. 21(a) 

by not complying with its General Operations Manual. 

V. COMPLAINANT DID NOT VIOLATE FAA ORDER 8900.1 

Complainant relies on its response to Respondent's motion for summary judgment for 

why Complainant did not violation FAA Order 8900.1, but points out that FAA Order 8900.1 is 

irrelevant to the issue of whether Respondent violated the Federal Aviation Regulations. It only 

4 
becomes relevant to the issue of an appropriate sanction once the FAA determines that 

Respondent violated the Regulations. 

VI. INSPECTOR MEENAN DID NOr PROVIDE FALSE INFORMATION 

Contrary to Respondent's assertion, Inspector Meenan's statement (Exhibit 4 to 

Complainant's Motion for Summaiy Judgment) is not patently false on its face. A review of the 

statement does not demonstrate any falsities. Therefore, it cannot be patently false on its face by 

definition. Additionally, Respondent has presented no evidence to show that anything in the 

statement is false. Instead, Respondent merely relies on unsupported allegations to assert that the 

statement contains a falsity. Unsupported allegations are insufficient to establish the statement is 

false. More importantly, the exhibits submitted in support of Complainant's summary judgment 

motion establish the truthfulness of Inspector Meenan's statement, as Respondent was not 

complying with its General Operation Manual's requirements related to Form EAI-301. See 

Exhibits 1-2, 6-8. 

CONCLUSION 

No genuine issue of material fact exists that Respondent violated its General Operations 

Manual when it did not enter the inspection due dates and times on Form EAI-301 on seven Part 

135 flights between June 15, 2010, and August 12, 2010. Accordingly, summary judgment 

regarding the violations alleged in the Complaint is appropriate. 

Respectfully submitted this___§_ day of July , 2012. 

,rn,~ R AN M. LANDERS 

Attorney 

Office of the Regional Counsel 

5 
<' 

CERTIFICATE OF SERVICE 

I hereby certify that the Complainant's Motion For Summary Judgment has been mailed this date 

via regular and certified mail to: 

Federal Aviation Administration (original and one copy) 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2Wl 000 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20, Room E12-320 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE 

East Building Ground Floor 

Washington, DC 20590 

B. Gray Gibbs, Esq. 

100 Second A venue South 

Suite 101-S 

St. Petersburg, FL 33701 

JflotmflZfl) £ ~ ' ONNAiSTANLEY~ ~ 

Legal Assistant 

Office of the Regional Counsel 

JUL 6 2012 

Dated 

(one copy) 

(one copy) 

6 
ELITE AIR, INC. 

GENERAL OPERATIONS MANUAL 

AIRWORTHINESS INFORMATION 

[135.23(e)] 

ELITE AIR, INC. STATUS SHEET (EAJ-106) 

E-1/R-43/29-Jan-2009 

In order to advise the flight crews of the maintenance status of the aircraft, the Director of 

Maintenance will publish EAI-106 Status Sheet, which will be maintained in the Airpraft Flight 

Log Book. Tlie Director of Maintenance will be responsible for the creation and publication of 

this status sheet, but he may delegate that re?ponsibility to other maintenance personnel. 

REVIEW OF THE STATUS SHEET (EAI-106) BY THE PILOT-IN-COMMAND 

As part of the preflight duties, the assigned Pilot-in-Command (PIC) will: 

1. Note the dater and the aircraft time and compare them with the inspection due dates and 

times listect'in .the Elite Air, Inc. Status Sheet (EAI-1 06) which is maintained in the Aircraft 

Flight Log Book. These inspection due dates and times shall be entered by the PIC in the 

appropriate blocks on the Aircraft Flight Manifest (EAI-301 ). 

2. Determine whether the flight or series of flights can be completed without any required 

inspection coming due before the aircraft returns to home base. The applicable inspections 

are listed below along with when they must have been previously accomplished. 

A. Any applicable inspection; 

B. Transponder, encoder, pitot/static system, and altimeter inspections and calibrations 

within the preceding 24 calendar months; 

C. EL T battery replaced on or before the date listed by the manufacturer or after one hour 

of cumulative use, whichever comes first; and 

D. Multi-engined aircraft weighing, and current empty weight and center of gravity 

calculation within the preceding 36 calendar months. 

3. If the scheduled flight(s) cannot be completed without one of the aforementioned 

inspections becoming overdue, the PIC will immediately contact the Director of Operations 

(or designee) for instructions. Under no conditions will a PIC commence a flight if any 

required inspection time has been exceeded. 

4. Determine that for deferred and corrected mechanical irregularities the aircraft has been 

certified approved for return to service by an Airframe and Powerplant Mechanic or by the 

Director of Maintenance. This certification will appear on the Aircraft Maintenance Log 

(See SectionS, Page S-7, Form EAI-AML). 
Akcra:ft Flight Manifest 
ELITE AIR, INC. S-5/ R-42/15-May-2008 

GENERAL OPERATIONS MANUAL 

INSTRUCTIONS FOR COMPLETION OF EAI-301 

1. Enter the date(s) of flights. 

2. Enter the tail number of aircraft. 

3. Enter the designated PIC. for flight by indicating the first initial and last name. 

4. Enter the designated SIC for flight by indicating the first initial and last name. . If 

none is designated, then enter N/A. 

5. Enter the total hours on airframe prior to flights from the previous flight log. Time is 

entered in hours and tenths·. 

6. Enter the total landings on airframe prior to flights from the previous flight log. 

7. Enter the total hours on Engine No. 1 prior to flights from the previous flight log. 

Time is entered in hours and tenths. 

8. Enter the total cycles on Engine No. 1 prior to flights from the previous flight log. 

9. Enter the total hours on Engine No. 2 prior to flights from the previous flight log. 

Time is entered .in hours and tenths. 

10. Enter the total cycles on Engine No. 2 prior to flights from the previous flight log. 

11. Enter the total hours and cycles for this series of flights. Time is entered in hours 

and tenths. Landings and Cycles are entered in whole numbers. 

12. Enter the beginning APU hours prior to flights. Time is entered in hours and tenths. 

If the aircraft does not have an APU, enter N/ A 

13. Enter the ending APU hours after this series of flights. Time is entered in hours 

and tenths. If the aircraft does not have an APU, enter N/A. · 

14. Enter the total of hours and cycles after this series of flights. 

15. If necessary, enter the corrected hours and cycles (to be performed by 

maintenance or pilots at the direction of the Director of Maintenance). Time is 

entered in hours and tenths. Landings and Cycles are entered in whole numbers. 

16. Indicate particular operating rules for that leg by circling either 91 or 135 

17. Enter the date that particular flight began. 

18. · Enter the time in Zulu that duty day began for that series of legs. Pilots need not fill 

this segment if the leg is preceded by other flights conducted during the same duty 

day. 

19. Enter the airport of original for that particular leg. 

20. Enter the destination airport for that particular leg. 

21. Enter the time in Zulu that the aircraft begins taxiing. 

22. Enter the time in Zulu that the aircraft takes off. 

23. Enter the time in Zulu that the aircraft lands. 

24. Enter the time in Zulu that the aircraft stops taxiing. 

25. Enter the total hours of flight time. for· that leg. Enter the time in hours and minutes 

(e.g. 2+26). 

26. Enter the total minutes of flight time for that leg. Enter the time in hours and 

minutes (e.g. 2+26). 

27. . Enter the total hours of block time for that leg. Enter the time in hours and minutes 

(e.g. 2+38) 

28. Enter the total minutes of block time for that leg. Enter the time in hours and 

minutes (e.g. 2+38. 

29. Indicate the pilot flying that particular leg by circling either PIC or SIC. 

30. Enter the total instrument time for that leg in tenths of hours. 

31. Enter the type of instrument approach, i.e. ILS, VOR, NOB, RNAV. Visual 

approaches may be entered by the symbol "V." 

32. Enter the time in Zulu that duty day ended for that series of legs. Pilots need not fill 

this segment if the leg is followed by other flights conducted during the same duty 

day. 
ELITE AIR, INC. S-6/ R-42/15-May-2008 

GENERAL OPERATIONS MANUAL 

33. Last name of the lead passenger for that particular leg. If no passengers or freight 

is on-board during this flight, the pilot should indicate by writing none or by 

indicating otherwise that it is an empty leg. 

34. Number of passengers on-board. 

35. Enter the maximum gross take off weight for this leg., taking into consideration all 

limitations, including such limitations as temperature, airport elevation, runway 

length, landing weight at destination airport. 

36. Enter the actual take off weight for this leg if a Part 135 leg. Enter N/A if the leg is 

Part 911eg 

37. If the leg is a Part 135 leg, enter the actual computed center of gravity for the leg. 

Enter N/A if the leg is a Part 91 leg. 

38. If the leg is a Part 135 leg, enter the actual forward center of gravity for the leg. 

Enter N/A if the leg is a Part 91 leg. 

39. If the leg is a Part 135 leg, enter the actual aft center of gravity for the leg. Enter 

N/A if the leg is a Part 91 leg. 

40. Enter the fuel (in pounds) on board at engine start. 

41. Enter the fuel (in pounds} on board at engine shutdown. 

42. Enter the fuel burn (in pounds) for the leg. 

43. Enter the time in hours and tenths for the Next Time Limited Item due from the 

Status Sheet (EAI-106). 

44. Enter the number of cycles in whole numbers for the Next Cycle limited Item due 

from the Status Sheet (EAI-106}. 

45. Enter the date for the Next Date Limited .Item due from the Status Sheet (EAI-1 06). 

46. Enter the date that the VOR check is next due. 

47. Enter the facility used to conduct the VOR ops check if checked. 

48. Enter the frequency of the facility used to conduct the VOR ops check if checked. 

49. Enter the bearing to or from the facility for VOR Receiver #1. 

50. Enter the bearing to or from the facility for VOR Receiver #2. 

51. Enter the difference between VOR Receiver #1 and VOR Receiver #2. 

52. Enter the due date for the next VOR ops check, i.e. thirty calendar days from the 

date of the check. 
U.S. Department 

of Transportation 

Federal Aviation 

Administration 

A008 . Operational Control 

Operations Specifications 

HQ Control: l 0/19/2009 

HQ Revision: 030 

a. The system described or referenced below shall be used by the certificate holder that conducts 

operations under 14 CFR Part 135 to provide operational control for its flight operations. The essential 

elements of operational control described in subparagraph d. below must be included or described in that 

system. 

The system of operational control is described in Section A of the General Operations Manual of Elite 

Air, Inc. · 

b. Certificate Holder Responsibilities: 

(I) The certificate holder retains all responsibility for the operational control of aircraft operations, 

and thus the safety of each flight conducted under this certificate and operations specification, including 

the actions or inactions of all direct employees and agents of the certificate holder. 

(2) This responsibility is not transferable to any other person or entity. 

(3) The certificate holder's responsibility for operational control supersedes any agreement, 

contract, understanding or arrangement, either oral or written, expressed or implied, between any 

persons or entities. 

c. The certificate holder may not engage in any of the following practices and shall not: 

(I) Franchise or share the certificate holder's authority for the conduct of operations under its 

certificate and operations specifications to or with another person or entity. 

(2) Use a ''Doing Business As" (DBA) name in any way that represents an entity that does not 

hold an air carrier or operating certificate and operations specifications as having such a certificate and 

operations specifications. 

(3) Engage in a Wet Lease Contquy to 14 CFR Section 119.53. In accordance with 

Section 119 .53(b ), the certificate holder may not wet lease from or enter into any wet leasing 

arrangement with any person not authorized by the FAA to engage in common carriage operations 

under 14 CFR Parts 121 or 135 (as appropriate), whereby that other person provides an aircraft and at 

least one crewmember to the certificate holder. A lease, or other business. arrangement with a lease, is 

considered a wet lease if any of the following conditions exists: 

(a) The certificate holder and. the aircraft owner/lessor agree that the certificate holder is 

required to use the aircraft owner's/lessor's pilot in Part 135 operations, 

(b) The aircraft owner/lessor is obligated to furnish pilots to the certificate holder to operate the 

aircraft, or, 

(c) The aircraft owner/lessor has the power to veto who the certificate holder will use to pilot 

the aircraft in Part 135 operations, so as to limit the certificate holder to using only the owner/lessor's 

Print Date: 1/5/20 I 0 A008-l 

Elite Air, Inc. 

Certificate No.: EOY A592J 
U.S. Department 

of Transportation 

rederal Aviation 

Administration 

pilots. 

. ..,_ .( 

~. '-' 

·"' J 

Operations Specifications 

(4) Transfer, surrender, abrogate, or share operational control responsibility with any party. 

(5) Engage in any arrangement with an aircraft owner, lessor or any other person or entity, such as 

an aircraft management entity, which allows the use of an aircraft for operations under these operations. 

specifications without a complete, effective and sustainable transfer of operational control to the 

certificate holder for all Part 135 operations conducted under these operations specifications. 

d. Elements of Operational Control. The following items are essential elements of operational control 

and are required to be components of the operational control system, used by the certificate holder, and 

as described or referenced in subparagraph a. above: 

(1) Crewmember Requirements. The certificate holder may not conduct any operation under 

Part 135, unless each of the certificate holder's crewmembers is: 

(a) The certificate holder's direct employee or agent during every aspect of the Part 135 

operations, including those aspects related to any pre-flight and post-flight duties. The certificate holder 

is accountable for the actions and inactions of these persons during all its aircraft operations. 

(b) Currently trained and/or tested, qualified, and holds the appropriate airman and medical 

certificates to conduct flights for the certificate holder under Part 135, and is otherwise qualified to 

accept the specific flight assignment, considering flight and rest requirements, airspace qualification and 

the type of operation intended in the assignment. Each pilot must be specifically listed by name and 

airman certificate number on a list of pilots maintained by the certificate holder at its main base of 

operations or listed in operations specification A039 or A040, if applicable. This information must be 

available for inspection by the Administrator as specified in Section 135.63. 

(2) Aircraft Requirements. The certificate holder may not conduct any operation under Part 135 

unless each aircraft used in its Part 135 operations is: 

(a) Owned by the certificate holder and remains, without interruption in the certificate holder's 

legal and actual possession (directly or through the certificate holder's employees and agents) during all 

of its Part 135 flights; or 

(b) Leased by the certificate holder or otherwise in the legal custody of the certificate holder 

and remains in the certificate holder's exclusive possession or custody during all of its Part 135 flights. 

(c) For each aircraft which the certificate holder uses under these operations specifications, the 

aircraft owner or other lessee of the aircraft may operate the aircraft under Part 91, under the control 

and responsibility (including potential liability for an unsafe operation) of the owner or other lessee, as 

long as the following condition is met: 

- The certificate holder ensures that the maintenance of the aircraft continues to adhere to 

the certificate holder's maintenance program at all times or, 

- When the aircraft is returned to the certificate holder but before the aircraft is operated 

under Part 135 again by the certificate holder, that aircraft undergoes an appropriate airworthiness 

conformity validation check. 

(3) Exclusive Aircraft Use Requirements for Part 135 Operations. At least one aircraft that meets 

Print Date: 115/20 l 0 A008-2 

Elite Air, Inc. 

Certificate No.: EOY A592J 
U.S. Department 

of Transportation 

Federal Aviation 

Administration 

0085 . ·Aircraft Listing 

Operations Specifications 

HQ Control: 02/06/1998 

HQ Revision: 02a 

a. The certificate holder is authorized to conduct operations under 14 CFR Part 135 using the 

aircraft identified on this operations specification. 

Registration No. 

N789LB 

NIOIUD 

N50DS 

N458HC 

N444CW 

N383MB 

N994GP 

N6GD 

N3210N 

N761XP 

N773HR 

N288FF 

N929JH 

N996JS 

N173DS 

N42LG 

Print Date: 7/14/2010 

Serial No. Aircraft M/M/S 

258248 

20220 

9140 

RJ058 

64 

5568 

105 

14500983 

HB-10 

258761 

258836 

31A-108 

31A-132 

31A-119 

45-2092 

RB-259 

BAE-125-800A 

BD-100-IAIO 

BD-700-IAII 

BE-400-400 

CE-650~CIT A TION III 

CL-600-2816 

DASSAUL T-FALCON-2000EX 

EMB-135-BJ 

HAWKER-750 

HA WKER-850XP 

HA WKER-850XP 

LR-31-A 

LR-31-A 

LR-31-A 

LR-45-45 

RA-390-390 

0085-1 

Elite Air, Inc. 
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