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U.S . DEPARTHENT OF TEIANSPO 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

RECEIVED 

FEDERAL AVIATION, INC. 

Complainant 

AIR CHARTER, INC. 

Respondent 

AP: ^ 0 7 2010 

HEARING Dcx:;Rirr 

FAA DOCKET NO. CP09SSO008 

DMS NO. FAA-2009-0100 

Hon. Isaac D. Benkin 

RESPONDENT^ S REPLY BRIEF 

Respondent, through its undersigned attorney, hereby replies 

to Complainant's appeal brief. In what follows, Respondent will 

debunk the fallacies of Complainant's assault on the probative 

value of the evidence evinced at trial and the absolute lack of any 

material errors on the part of the Administrative Law Judge, as 

contained in his initial decision served on January 8, 2010. 

Further, it will be shown that Complainant's recitation of facts 

are nothing but a tergiversation of the testimony elicited at the 

hearing and of the credibility granted by the trier of fact to the 

witnesses who gave that testimony. 

The Air ^Ambulance Issue 

Complainant would have its judgement substitute that of the 
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medical personnel and the physician who examined the patient and 

determined to airlift her to the mainland. At the time the decision 

was made, no one knew of the existence of the fracture which was 

ultimately discovered at the medical facility to which she was 

taken on the mainland. Regardless, the testimony was ample as to 

the decision to send her by regular air rather than by an air 

ambulance or the U.S. Coast Guard, who provided that service when 

the contracted certified air ambulance operator was unavailable. 

Again, it is of the essence to be fully aware of the following 

underlying facts: The passenger in question was sent to the 

mainland on orders from Dr. Marangely Rodriguez. She testified that 

she did not consider the passenger's condition such as would 

warrant transportation by air ambulance. That the symptoms which 

she complained of were of pain in the hip and that she was a 

frequent visitor to the medical facility, having come to it 

previously on the same date. As there were no radiographic 

facilities at the medical center, she was sent to the mainland for 

further evaluation. Transportation from the Culebra medical center 

to the airport was by ambulance with the patient on a stretcher 

since this is the only means available. The flight was, likewise^ 

the only one available at the time and was scheduled to leave 

Culebra for the mainland at the time the passenger was evaluated at 

the medical center. 

It is significant to note that there was no medical personnel 

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or equipment on board the aircraft, that not one of Complainant's 

witnesses examined the aircraft and that all the evidence asserted 

were some photographs taken at a distance showing the passenger 

being offloaded. In fact. Complainant's witness Eugene Jester gave 

a statement {Exhibit 9) to the effect that he did not observe any 

Respondent personnel assisting the patient or on in the aircraft. 

The mendacity of Complainant's witness Joel Rodas was amply 

demonstrated when he testified that he determined that the flight 

was operated on the basis of the photographs and of the statement 

by the administrator of the Culebra medical center. This an 

outright falsehood inasmuch as the complaint based on Rodas' 

investigation is dated May 27, 2009 and the statement in question 

was issued on August 24, 2009 and submitted to Complainant's 

counsel subsequently as a result of discovery. Therefore, Rodas 

could not have seen the statement until several months after he 

made the determination on which the air ambulance charge in the 

complaint was based. 

When the flight arrived at Isla Grande the passenger which was 

being transported to the P.R. Medical Center got off, of her own 

accord, and climbed onto the stretcher provided by the ambulance 

which met the aircraft. Again, she was not assisted by any of 

Respondent's personnel nor was any medical equipment observed on 

the aircraft, much less by Rodas, who was not even in Puerto Rico 

at the time. 

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In sum and substance, the determination that the flight in 

question operated as an air ambulance was erroneously based on the 

observation of a stretcher being offloaded from Respondent's 

passenger flight from Culebra to Isla Grande. This determination 

flies in the face of the undisputed facts which evidenced that the 

Culebra medical center did not deem the passenger's condition such 

as would require her transport by air ambulance, that there was no 

medical personnel or equipment assisting the passenger and that her 

transport on a stretcher was simply a matter of convenience due to 

the fact that she was transported in that manner to the Culebra 

airport. 

The Careless or Reckless Allegation 

There was no evidence presented at trial that could 

conceivably show that the Respondent, on June 8, 2008, operated 

aircraft N906GD in a manner such as would endanger the life or 

property of another. The aircraft was loaded well within its weight 

and balance envelope and the fact that there was a stretcher 

installed had no bearing on the safety of the flight. Of cardinal 

importance is the fact that Complainant's ^^expert", Joel Rodas, was 

incompetent to the extent of being unable to make any weight and 

balance calculations-^ such as would sustain the charge that there 

was something amiss. At no time were the lives of the passengers or 

As a matter ot fact/ the Adminii^trar i ve Law Judge asked Rodas to perform the 

calculations and gave him ample time to do so, after which Rodas grudgingly 

admitted that he was incapable of doing what had been requested of him. 

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crew of N906GD endangered, from takeoff at Culebra to landing at 

Isla Grande, It is likewise ludicrous to have alleged that the 

property of anyone was endangered during that flight. 

The Administrative Law judge correctly characterized as 

"outrageous" Complainant's depiction of the passenger as someone 

akin to a raving lunatic. Once more. Complainant, in its unbounded 

zeal directed at creating facts out of thin air, sought to weave 

into its interpretation of the events a picture totally at odds 

with the testiiTLony of the witnesses. The most eloquent example of 

this is its obstinate attempt to create the impression that the 

fracture was known to those ressponsible for sending the lady to the 

mainland for examination. The testimony of the witnesses coi:rectly 

stated that she was unattended during the flight, precisely because 

she did not need any attention, because it was not an air amh>ulance 

which was being operated. 

The Safety Belts 

There was some testimony seemingly directed at the issue of 

the stretcher's belts. While acknowledging that the belts were not 

installed crosswise as the manufacturer indicated, there was no 

evidence presented as to how this compromised the operation of the 

aircraft on the flight in question. Moreover, on June 30, 2 008 

Complainant, through Joel Rodas, issued a letter of investigation 

regarding the alleged conversion of the subject aircraft to an air 

ambulance. This letter was identified as case number EIS 

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2008SO190256 (Exhibit 24). On April 9, 2009 a warning notice 

(Exhibit 23) was issued for the alleged violation in case number 

EIS 2009SO190256 deeming that ''this matter does not warrant legal 

enforcement action". Yet, Complainant would have this matter 

revisited. 

The Administrative Law Judge's Analysis 

The initial decision rendered by the Administrative Law Judge 

in the case at caption is fully supported by the testimony he 

heard, his observation of the demeanor of the witnesses who 

appeared before him, of the documentary evidence presented, and by 

the facts elicited by him throughout the hearing. There is nothing 

to be gained by further penalizing Respondent. Complainant's appeal 

brief should be considered as a wishful attempt to prove at this 

stage what it could not establish at trial. The facts do not 

support a finding other than that set forth in the initial decision 

which is the subject of the instant appeal. 

Conclusion 

Wherefore, premises co:nsidered. Respondent respectfully 

requests that the instant appeal be dismissed and that the initial 

decision dated January 10, 2010 be allowed to stand in its 

entirety, 

In Guaynabo, P.R., this e''^ day of April, 2009. 

I certify that before filing the above, a copy hereof was this 

day mailed with postage fully prepaid thereon to Gerald A. Ellis, 

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Esq., t o his address of record. 

^^:> -

GABRIEL I. PESAGARICANO 

120608 

PMB 239 

405 Ave. Esmeralda, Ste. 102 

Guaynabo, P.R. 00969 

287-9024, Fax, 731-0679 

gipsl934?hotmail.com 

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