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DFPTOFTR/^NSPORWK)N 

DOCiniS U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

1 0 A. ;:21 OFFICE OF HEARINGS r , ^'-i\fr'r% 

WASHINGTON. D.C. • ''. •, /' C li V %Z U 

APR 2 3 2010 

In the Matter of Helicopters Flite, Inc. 

FAA Docket No. CP09EA0015 

AGENCY'S REPLY BRIEF 

COMES NOW the Agency, by and through its designated 

representative, the Regional Counsel for the Eastern Region and his duly 

designated agents, and submits, in accordance with 14 CFR § 13.233(e), its 

brief in reply to the appeal brief that was filed by Helicopters Fllte (Appellant) 

on March 23, 2010 or thereabouts. 

PROCEDURAL HISTORY 

The Agency issued a Notice of Proposed Civil Penalty on January 29, 

2009, and then a Final Notice of Proposed Civil Penalty on April 28, 2009. 

On June 11, 2009, Appellant requested a hearing. At about that time, 

Appellant started to be represented by Christopher T. Powell, Jr., Esq. On 

June 30, 2009, the Agency filed its Complaint, which was subsequently 

amended on September 23, 2009 and again on January 7, 2010. In the 

Second Amended Complaint, dated January 7, 2010, the following was 
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alleged: 

(1) At all times relevant herein, Helicopters Flite, Inc., was the holder of 

Air Carrier Certificate No, 09HA. 

(2) During the entire period from February 12, 2008 to September 15, 

2008 or thereabouts, the only aircraft listed in the operations 

specifications of Helicopters Flite, Inc., as being authorized for air 

carrier operations was a Bell 407 helicopter, identification number 

N407Z (hereinafter "the N407 aircraft"). 

(3) During the entire period from February 12, 2008 to September 15, 

2008 or thereabouts, Helicopters Flite, Inc., did not have exclusive use 

of the N407Z aircraft. 

(4) It was not until September 15, 2008 or thereabouts that the Federal 

Aviation Administration discovered, through its own inspection, that 

Helicopters Flite, Inc., did not have exclusive use of at least one 

aircraft under its operations specifications. 

By virtue of the above allegations, the Agency charged Appellant with 

violating 14 CFR Section (Federal Aviation Regulation [FAR]) §135.25(b), which 

states, inter alia, that each certificate holder must have the exclusive use of at 

least one aircraft that meets the requirements for at least one kind of operation 

authorized In the certificate holder's operations specifications. In the Second 

Amended Complaint, the Agency requested the Administrative Law Judge In the 

proceeding (ALJ) to enter an order assessing Appellant a civil penalty of 

$11,000. In Its answer to the Second Amended Complaint, Appellant admitted to 

Paragraphs (1) and (2) of said Complaint. 

In the ALJ's Prehearing Order Establishing Procedures served on July 28, 

2009, the hearing was scheduled for December 22, 2009 and the pariiies were 
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ordered to exchange witness lists and proposed exhibits by December 8, 2009. 

In the ALJ's Order Postponing Hearing served on August 14, 2009, the hearing 

was postponed to January 26, 2010, and the deadline for exchange of witness 

lists and proposed exhibits was extended to January 12, 2010. On January 19, 

2010, the Agency, based on Appellant's failure to date to provide a witness or 

exhibit list or copies of proposed exhibits, filed a motion In limine to exclude 

Appellant from calling witnesses or offering exhibits at the hearing. On January 

20, 2010, Mr. Powell filed a motion to withdraw as counsel for Applicant. Prior to 

the January 26, 2010 hearing, the ALJ did not rule on either the motion in limine 

or motion to withdraw as counsel. 

At the beginning of the hearing on January 26, 2010, the ALJ allowed Mr. 

Powell to withdraw as counsel. Transcript (TR) 4-5. Appellant was then 

represented by its president, Floyd Hoffman (hereinafter "Mr. Hoffman"). TR 10-

11. Mr. Hoffman requested a postponement of the hearing, but the ALJ denied 

his request. TR 8-9. This was the first request for a postponement by either 

party since the hearing was rescheduled to January 26, 2010. The Agency 

renewed its motion in limine to exclude Appellant from calling any witnesses or 

offering any exhibits, and the ALJ granted the motion, ruling that "the respondent 

will not be entitled to put on a case in chief." TR 11-12. 

At the hearing, two wrtnesses testified on behalf of the Agency, Aviation 

Safety Inspectors (ASI) Eugene McCoy and Frank Alotta, Jr. Nine agency 

exhibits were accepted into evidence: excerpts from Appellant's operations 

liiMBtaMiiiliM 
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specifications (A-1 and A-2); Inspector Statement, dated September 3, 2008 (A3); record reflecting sale of N407Z in May 2008 (A-4); records reflecting sale of 

N407Z in February 2008 (A-5); Lease Agreement between Air Chopper and 

Appellant (A-6), Letter of Investigation (A-7); letter from Mr. Hoffman to ASI Alotta 

(A-8); and excerpts from FAA Order 2150.3B (A-9), Following the hearing, on 

February 4, 2010, the ALJ found in the Agency's favor on all counts and issued 

an initial decision assessing an $11,000 civil penalty. In determining the amount 

of civil penalty, the ALJ took into consideration the sanction guidelines in FAA 

Order 2150.38 (Exhibit A-9) and his finding that Mr. Hoffman, on behalf of 

Appellant, "knowingly and deliberately tried to mislead the local FSDO, and the 

agency as a whole, about the provenance of his asserted exclusive right to the 

use and possession of N407Z." Initial Decision, p. 8. 
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ISSUES 

(1) Whether the ALJ's decision not to grant Appellant's request for a 

postponement of the hearing was in accordance with the law? 

(2) Whether the ALJ's decision to grant the Agency's motion in limine was in 

accordance with the law? 

(3) Whether the ALJ's assessment of an $11.000 civil penalty was in 

accordance with the lav/? 

ARGUMENT 

(1) The ALJ's decision not to grant Appellant's request for a postponement of the 

hearinq was in accordance with the law. 

There is no dispute that the ALJ, on August 14, 2009, set a reasonable date, 

time, and place for the hearing, and gave the parties adequate notice thereof, as 

required by 14 CFR 13.55, when he scheduled the hearing for January 26, 2010 in 

Allentown, PA. Despite the advance notice of more than five months, Appellant 

waited until the date of the hearing to request the postponement of the hearing, 

when, as the ALJ pointed out, "there were assembled FAA witnesses and counsel, 

as well as the reporter and administrative law judge, several of whom had come 

great distances to Allentown, a location chosen to suit Mr, Hoffman's 

convenience." Initial Decision, p. 9. It's true that Mr. Powell did not move to 

withdraw as counsel until January 20, 2010, six days before the hearing, but even 

then Appellant did not move for a postponement of the hearing. As pointed out by 

the ALJ, "the discharge of an attorney on the eve of the hearing is an oftenattempted gambit on the part of parties who want to protract the proceeding as long 
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as possible," and given the ALJ's lack of authority to deny a motion to withdraw as 

counsel, the "remedy for the dilatory tactic of discharging an attorney within days of 

the scheduled start of a hearing is simply to require the hearing to go forward and 

the Respondent to be represented by a designated representative." Initial 

Decision, p. 9. 

On appeal, Appellant argues that by denying the request to postpone the 

hearing, the ALJ effectively denied it of the right to effective assistance of counsel. 

A constitutional right to effective assistance of counsel in civil cases may arise 

from the Due Process Clause of the Fifth Amendment, "but the only context in 

which courts have recognized a constitutional right to effective assistance of 

counsel in civil litigation is in immigration cases. Nelson v. Boeing. 446 F. 3d 1118, 

1120 (10* Cir. 2006). See also Ponce-Leiva v. Ashcroft. 331 F. 3d 369, 381-82 (3'^ 

Cir. 2003) (because attorneys in immigration proceedings are held to a 

constitutionally imposed minimum level of proficiency, "[ajliens, like criminal 

defendants and unlike parties in normal civil disputes, may obtain relief from the 

ineffective assistance of counsel"); Meiia Rodriguez v. Reno, 178 F. 3d 1139, 1146 

(11*^ Cir. 1999) (aliens have a right to effective assistance of counsel under the Due 

Process Clause because deportation proceedings Implicate an alien's interest). 

Thus, Appellant did not have a constitutional right to effective assistance of 

counsel, and the ALJ's declining Appellant's request to postpone the hearing was 

not a violation of Appellant's constitutional rights. 
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(2) The ALJ's decision granting the Agency's motion in //m/'ne was in accordance 

with the law. 

Under the ALJ's Order Postponing Hearing sen/ed on August 14, 2009, the 

parties were required to exchange witness lists and proposed exhibits by January 

12, 2010, Appellant not only failed to submit any a witness list or copies of exhibits 

(or a list thereof), but never requested an extension of time for these submissions. 

Allowing Appellant to produce evidence at the hearing would have been prejudicial 

to the Agency in that it would have enabled Appellant to conduct, in the ALJ's 

words, a "trial by ambush." TR 12. It is also noted that by the time the deadline for 

submitting the witness and exhibit list had already lapsed (i.e., January 12, 2010), 

Appellant was still represented by counsel, who did not even attempt to withdraw 

as counsel until January 20, 2010. And absent a constitutional right to effective 

assistance of counsel, Appellant is bound by the acts and omissions of the attorney 

chosen to represent it. See Pioneer Inv. Serv. Co. v. Brunswick Assoc;.-. Ltd. 

PshiE, 507 U.S. 380, 396 (1993). 

(3)THE ALJ's DECISION TO ASSESS A $11.000 CIVIL PENALTY WAS 

APPROPRIATE. 

The maximum civil penalty for a single violation by small business 

under 49 USC §46301 (a) (5) (A) is $11,000. As noted in the Initial Decision, the 

Agency, through its testimony, characterized Appellant as a small business air 

carrier. TR 139; Initial Decision, p. 8. Thus, the sanction range under FAA Order 

2150.38 calls for either a minimum civil penalty ($550-32,199), moderate ($2,200-
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$4,399), or maximum ($4,400-$11,000). Exhibit A-9, p. B^. In assessing a civil 

penalty, each day theoretically can be counted as a separate violation. In the 

Matter of Stebbins Aviation. FAA Docket No. CPOOSW0014 (2004). The violation 

continued from February 12, 2008 to September 15, 2008, or about 216 days, 

and thus Appellant theoretically could have been assessed a civil penalty of at 

least $118,800 by statute ($550 times 216 days). In effect, the FAA - as well as 

the ALJ - gave Appellant the benefit of the doubt in calculating a single maximum 

civil penalty. As noted by the ALJ, there were aggravating circumstances 

justifying the maximum civil penalty, including the fact that Mr. Hoffman knowingly 

and deliberately tried to mislead the FSDO with respect to the status of the N407 

aircraft. Initial Decision, p. 8. Thus, the assessment of an $11,000 civil penalty 

was appropriate. 

On appeal. Appellant argues that an $11,000 civil penalty is excessive 

for a small business. However, the Agency, when promulgating its sanction 

guidelines in FAA Order 2150.30, already took the size of a business into 

consideration and determined that a small business can be subject to a maximum 

civil penalty of $11.000, as allowed by statute. The agency's choice of a sanction 

is not to be overturned unless it is unwarranted in law or without justification of 

fact. NL Industries, Inc., v. DOT, 901 F. 2d 141, 144 (D.C. Cir. 1990). Thus, the 

ALJ's deference to the FAA Order 2150.38 sanction guidelines and the FAA's 

application of these guidelines to determine the sanction in this case was 

appropriate. 
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CONCLUSION 

The ALJ's denial of the postponement of the hearing, granting of the 

Agency's motion in limine and assessment of an $11,000 civil penalty were 

appropriate. Notwithstanding the above, the Agency would submit that 

remand of the case for a re-hearing, to give Appellant the opportunity for 

further preparation of the case (with our without counsel, at its discretion), 

would be appropriate. 

Respectfully submitted, 

Alfred R. Johnson, Jr. 

Regional Counsel 

By: 

Zachary/M. Berman 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

PH: (718)553-3258 

FAX: (718)995-5699 

Date: ^hfr 
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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Agency's Reply to Appeal Brief been sent via 

Federal Express mail on this date to the following: 

Floyd Hoffman 

President 

Helicopters Flite, Inc. 

190 Decker Lane 

Weatherly, PA 18255 

Federal Aviation Administration (Original and one copy) 

600 Independence Avenue, S.W. 

Washington. D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014 

Date: 

APR 2 2 2010 

L i ^ Hooks 

'aralegal Specialist 

Federal Aviation Administration 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

10