### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS

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 BRIEFIN SUPPORT OF COMPLAINANT'S MOTION FOR SUMMARYJUDGMENT


### In its response to Complainant's summaryjudgment motion, Respondent asserts that (1) Complainant failed to comply with Federal Ru1e ofCivil 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 ofRespondent'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 summaryjudgment must cite to "particular parts ofmaterials
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 summaryjudgment. 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 ofthe 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 ofthe 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 SHOWFLIGHTS WEREPART 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 BYTHE 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 ofthe preflight duties, the Pilot-in-Command "shall"

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

1 Inspector Meenan's certification that the copies are true and accurate copies ofRespondent'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 inthe summaryjudgmentmotion to avoid confusion. 

### 3

### 1-2. These inspection due dates and times include the APU hours, Next Time Limited, Next Cycle Limited, and NextDate Limited blocks inForm EAI-301. Id.
A review ofthe 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 ofcycles of!heNext 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 ofcycles ofthe 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 ofcycles ofthe
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) bynot 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 summaryjudgment for why Complainant did not violation FAA Order 8900.1, but points out that FAA Order 8900.1 is
irrelevant to the issue ofwhether 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 NOrPROVIDE 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 ofthe

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 merelyrelies 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 ofComplainant's summaryjudgment
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 ofmaterial 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___§_ dayof July , 2012.

# ,rn,~ R AN M. LANDERS Attorney Office ofthe Regional Counsel

5<'



### CERTIFICATE OF SERVICE


### I hereby certify that the Complainant's Motion For SummaryJudgment 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 2Wl000

The Honorable J.E. Sullivan Administrative Law Judge Office ofHearings, M-20, Room E12-320 U.S. Department ofTransportation 1200 New JerseyAvenue, SE East Building Ground Floor Washington, DC 20590

B. Gray Gibbs, Esq. 100 Second Avenue South Suite 101-S St. Petersburg, FL 33701 

# JflotmflZfl) 

# £**~** 

# '**ONNAiSTANLEY~ ~**  Legal Assistant Office ofthe Regional Counsel 

## JUL 6 2012 Dated (one copy)

(one copy)



### 6ELITE 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 ofthe preflight duties, the assigned Pilot-in-Command (PIC) will:
1. Note the daterand 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. ELT 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:ftFlightManifestRev.12-tt.'''}"")G>mmrz-m-t::om)>:!:!:r::o.o:...,zmo::o·0zens)>zc:)>r::uIwm--_...(}1I000mELITE AIR, INC. 

### S-5/ R-42/15-May-2008 GENERAL OPERATIONS MANUAL 

### INSTRUCTIONS FOR COMPLETION OF EAI-301 

### 1. Enterthe date(s) offlights. 2. Enter the tail number ofaircraft. 

### 3. Enterthe 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. Enterthe total hours on airframe prior to flights from the previous flight log. Time is entered in hours and tenths·. 

### 6. Enterthe total landings on airframe priorto 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. Enterthe 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. Ifthe aircraft does not have anAPU, enter 

### N/ A 

### 13. Enter the ending APU hours after this series of flights. Time is entered in hours and tenths. Ifthe aircraft does not have an APU, enter N/A. · 

### 14. Enter the total of hours and cycles afterthis series offlights. 

### 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. · Enterthe time in Zulu that duty day began forthat series of legs. Pilots need not fill this segment ifthe 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 forthat 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. Enterthe 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 ofthe 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 ifthe leg is Part 911eg 37. Ifthe leg is a Part 135 leg, enter the actual computed center of gravity for the leg. Enter N/A ifthe 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 ifthe leg is a Part 91 leg. 39. Ifthe leg is a Part 135 leg, enter the actual aft center of gravity for the leg. Enter N/A ifthe 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. Enterthe 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 ifchecked. 48. Enter the frequency ofthe facility used to conduct the VOR ops check ifchecked. 49. Enterthe bearing to orfrom the facility for VOR Receiver #1. 50. Enter the bearing to orfrom 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 ofthe check.U.S. Department ofTransportation Federal Aviation Administration

A008 . Operational Control Operations Specifications

HQ Control: l0/19/2009 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 ofoperational control described in subparagraph d. below must be included or described in that system.

The system ofoperational control is described in Section A ofthe General Operations Manual ofElite Air, Inc. ·

b. Certificate Holder Responsibilities: (I) The certificate holder retains all responsibility for the operational control ofaircraft operations, and thus the safety ofeach flight conducted under this certificate and operations specification, including the actions or inactions ofall direct employees and agents ofthe 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 ofthe following practices and shall not: (I) Franchise or share the certificate holder's authority for the conduct ofoperations under its certificate and operations specifications to or withanother 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 ifany ofthe 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/lessoris 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: 1/5/20I0 A008-l Elite Air, Inc. Certificate No.: EOYA592JU.S. Department ofTransportation rederalAviation 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 orany other person or entity, such as an aircraft management entity, which allows the use ofan aircraft for operations under these operations. specifications without a complete, effective and sustainable transfer ofoperational control to the certificate holder for all Part 135 operations conducted under these operations specifications.
d. Elements ofOperational Control. The following items are essential elements ofoperational control and are required to be components ofthe 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 ofthe certificate holder's crewmembers is: (a) The certificate holder's direct employee or agent during every aspect ofthe 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 ofthese 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 ofoperation intended in the assignment. Each pilot must be specifically listed by name and airman certificate number on a list ofpilots maintained by the certificate holder at its main base of operations or listed in operations specification A039 or A040, ifapplicable. 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 andremains, without interruption in the certificate holder's legal and actual possession (directly or through the certificate holder's employees and agents) during all ofits Part 135 flights; or (b) Leased by the certificate holder or otherwise in the legal custody ofthe certificate holder and remains in the certificate holder's exclusive possession or custody during all ofits Part 135 flights. (c) For each aircraft which the certificate holder uses under these operations specifications, the aircraft owneror other lessee ofthe aircraft may operate the aircraft under Part 91, under the control and responsibility (including potential liability for an unsafe operation) ofthe owner or other lessee, as long as the following condition is met:

- The certificate holder ensures that the maintenance ofthe 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: 115/20l0 A008-2 Elite Air, Inc. Certificate No.: EOYA592JU.S. Department ofTransportation 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. AircraftM/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 DASSAULT-FALCON-2000EX EMB-135-BJ HAWKER-750 HAWKER-850XP HAWKER-850XP LR-31-A LR-31-A LR-31-A LR-45-45 RA-390-390

0085-1 Elite Air, Inc.&;;;;L-1I(,-OPERATIONSMANUAL(S-4/R-36/15-SEP-20f-oates::'0{1s1(0ITailNo.N444CW1-_--•,_..1No.:CW-00105...••EliteAir,Inc.EAI-301Rev.12'Ct00...._C')000...lOr·-o0**(')(')0ro0N--.NN'·0(.-.........------1Ei...iTi2Air\,MANUM----;---·.N.4.44CW.--.TatlNo.((:B-4/R-36/1ry-SFP-2006Dates:EliteAir,Inc.EAl-301Rev.12q00-......r00a.......,r--o0**N(')C>1'--C>C>N.....ELiTE(.\INC.OPE:RATI(lN$MANUALOates:e-ltd{0-f;:.•••Inc.(\TailNo.-N444CWS 4'R06'1.-.,r...r-I-...;I..•-r-.v(_EAI-301Rev.12