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StTRVED DECEMBER 30 , 201 1 

U.S. . DEPARTMENT OF TPJ1.NSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

DEC 3 0 2011 

IN THE MATTER OF 

RUSHMORE HELICOPTERS, INC. Z'. ^^ ^ 

FAA DOCKET NO. CPIOGL0002 ' C"-\--^^^ 

(Civil Penalry Action) rr;ZSD^, 

DMS No. FAA-201U-0023 __ HO' ^ 

en 

COMPLAINANT'S REPLY BRIEF 

Pursuant to 14 C.F.R. ^ 13.233, ConipiaindnL files rhis 

brief in leply to Ru.shmore Helicopter's ("Respondent" or 

"Rashmore") appeal of the Init'i al Decision, rendered by 

Administrative Law Judge ("ALJ") Richard C. Goodwin on 

October 3, 2011 -

_STATEMENT Ol:' THE CASE 

On Jc:nuary 19, 2010, Complainant issued a final notice of 

proposed civil penalty seeking a civil penalty of $25,000 

against Respondent. Respondent requested a hearing on the 

matter, and Complainant filed the coTiplaint in tho case on 

February 2, 2010. In the complain^:, Conpiaina.it: alleged that: 

1. At ail times relevan'C hereto Rushmore operated a 

commercial air tour operation (CAT operation) in the 

vicinity of Custer, South Dakota. 
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2. In it5 CAT operation Rushmore employed the services of 

a commercial pilot, Robert Leroy Leffert (Lcffert) and 

ooerated a Bell 206 helicopter, registered as N22b8W 

and owned by 63 Whiskey LLC. 

3. At all times relevant hereto Leffert acted as pilot in 

command and operated N226ew as a pilot of, and agent 

of, Rushmore in the CAT operation. 

A. At some point during the afternoon of August 6, 2009, 

Leffert discovered that the fuel cap was missing from 

N2268W. 

5. Rather than secure M2260W until a replacement fuel cap 

could be obtained, or seek the assistance of a 

certificatec mechanic to obtain a special flight 

(ferry) permit, Leffert put duct tape over the fuel 

filler port and flew N226ew, from Keystone, South 

Dakota to the Rushmore and Blac:-: Hills Aerial 

Adventures facility, near Custer, South Dakota, 

approximately 10 miles away. 

6. On August 1, 2009, Leffert operated N2268W in 

Rushmore's CAT operation, without the benefit of a 

fuel cap installed and with duct tape over the fuel 

filler port, on at least 10 passengers carrying air 

tour flights. 

7. N2268W did not moot the type design or type 

certificate for a Bell 2063 helicopter when it did not 

have a fuel cap and when it had duct tape over the 

fuel filler port. 

6. At no time relevant hereto was a special flight 

(ferry) permit issued that would allow for the 

operation of N2268W with duel tape over the fuel 

filler port rather than the appropriate fuel cap. 

9. AL all times that Rushmore operated N2263W without a 

fuel cap and with duct tape over the fuel filler port, 

N2268W was not in an airworthy condition. 

IC. Rushmore's operation of l^2Z6QV} without a fuel cap and 

with duct tape over the fuel tiller port, as described 

above was careless and endangered the lives and 

orooertv of others. 
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Complainant concluded that Respondent's conduct was in violation 

of 14 C.F.R. §§ 91.7(a) and 91.13(a).' 

On April 27, 2011 a hearing was held. Rushmore owner and 

President Michae] Jacob represented Respondent pro se . On 

October 3, 2011, the ALJ rendered his Initial Decision in which 

he determined that Complainant proved that Respondent violated 

14 C.F.R. §§ 91.7 and 91.13(a) as set forth in the Complaint. 

Initial Decision at 6. The ALJ assessed a civil penalty of 

$22,500. Respondent filed notice of appeal on October 14, 2011. 

STATEMENT OF FACTS 

Respondent is located in Keystone, South Dakota and 

operates helicopters in commercial air tour operations conducted 

under 1-^ C.F.R. part 91. (Tr. 18-19). Black Hills Aerial 

Adventures ("Black Hills") is Respondent's sister company and is 

located approximately ten miles aw=y in Custer, South Dakota. 

Michael Jacob is the owner and President of both. Rushmore and 

Black Hills, Employees who work for Rushmore also v/ork for 

Black Hills. (Tr. 13-19). 

Section 91.7 states: 

§ 91.7(a)- No person may operate a civil aircraft unless .it 

is in an airworthy condition. 

Section 91.13(a) states: 

§ 91.13 (a)- Aircraft operations for the purpose of air 

navigation. Mo person may operate an aircraft in a 
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On August 5, 2009, Robert Leffert, a pilot for. Respondent, 

refueled N2268W, a Bell 206 Jet Ranger, at Keystone. (Tr-. 70). 

Leffert then assisted a ground crewnember who was having trouble 

.stowing a fuel hose. (Tr. 70). As a result, Leffert became 

distracted, and ''the fuel cap didn't get put on." (Tr. 70). 

Leffert then relocated the helicopter across the ramp area to 

the loading pad, picked up passengers, and look off. (Tr. 70). 

Soon realizing hi^- mistake, Leffert returned to Keystone, 

unloaded the passengers, and searched for the fuel cap. (Tr. 70-

71), After failing to locate the fuel cap, Leffert placed duct 

tapfc over the fuel port, flew N2268W Lo Black Hills's hangar 

facility in Custer,, then loft the facility for the day. (Tr. 70-

/5) . 

On the morning of August 7, 2009 before Respondent began 

conducting commercial air lour.s for that day, Leffert and Jacob 

discussed the lack of a fuel cap. (Tr. 73). Jacob stated that 

he had a telephone conversation with a Bell design engineer on 

August 7, 7009 who opined that the fuel cap was not a structural 

componenL and that the lack ol a fuel cap did not present a 

safety issue. (Tr. 113). However, during the course of his 

investigation, FAA Inspector Gary Kwasniewski contacted a Bell 

engineer who stated to Kwasniewski in an email that the fuel cap 

careless or reckless manner so as to endanger the 1ife or 

property of another. 
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is an essential component and that operating the helicopter 

without a fuel cap compromises safety and renders the aircraft 

unairworthy. (Agency Exhibit 7). 

On August 7, 2009, Leffert decided to fly N2266W from 

Custer to Keystone, where he conducted commercial air tour 

operations that day. Upon receiving a complaint of a missing 

fuel cap from a-business owner located beside Respondent's 

facility in Keystone, Inspector Kwasniewski went to the facility 

on the afternoon of August 7 to investigate. (Tr. 20). 

Kwasniewski observed N2268W takeoff with passengers on board, 

without a fuel cap, and with duct tape covering the fuel filler 

port. He stated that he first observed that the fuel cap was 

missing as the aircraft was preparing to depart from the 

''farthest port" at the facility. (Tr. 26). For safety reasons, 

he did not prever:t the helicopter from taking off: "I didn't 

feel I should be running out to go in.front of the helicopter 

that was starting to take off." (Tr. 59). 

While Inspector Kwasniewski waited at the Keystone location 

for N2268W to return, he got a copy of the August 7 flight 

record from Rush-more employee, Mariah Weller. (Tr. 29, Agency 

Exhibit A) . Kwasniewski observed Weller rerriove the record from 

the binder, make a copy, then hand the copy to Kwasniewski. 
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(Tr. 66-67), Wilier told Kwasniewski that the record was the 

only record for that day, August 7, and that all previous flight 

records are taken to the Black Hills facility in Custer. 

(Tr. 37, 66-67). Kwasniewski then traveled to Custer to get a 

copy of the flight record for the previous day, August 6. 

(Tr. 33; Agency Exhibit 3): 

While enrout^ from Keystone'to CusLer, Inspector 

Kwasniewski notict^d Chat the record Weller provided him at 

Keystone was marked as August 6 instead of August 7. (Tr. 36-

37). Kwasniewski determined that the record was marked 

.incorrectly and should have been marked as August 7. (Tr. 37). 

Kwasniewski based his determination on his observations of, and 

conversation with, Weller as described in the preceding 

paragraph. (Tr. 36-37, 66-67). After Kwasniewski arrived at the 

Black Hills facility in CusLer, he spoke with Jacob, owner of 

Black Hills and Rushmore and got a copy of the August 6 flight 

record. (Tr. 41-42; Agency Exhibit 3). 

At hearing. Complainant called Rushmore pilot Leffert to 

testify. When ^.skfic. how many flights Leffert conducted on 

August 1, 2009, Leffert said ''[a] ccording to the records, there 

was about ten flights. I don't remember doing tnat many, but 

that was apparently, the casii " (Tr. 76-77). 

Also at hearing. Respondent president Jacob testified that, 

"[r]egarding the incident of August 6th and 7th, I do not deny 
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that the aircraft was operated.with duct tape placed over the 

fuel port when the gas cap was lost." (Tr. 118). Jacob also 

stated, "I admit to the fact that the aircraft was .operated." 

(Tr. 119).. On cross-examinat ion, . Compl ainant asked Jacob if he 

admitted that Rushjtore operated .the aircraft. Jacob respondent, 

''I adm.it that [Rushmore pilot] Lee Leffert operated the 

aircraft." (Tr. 120). 

STf^NDARD OF REVIEW 

On appeal, the FAA Decisionmaker considers only the 

following issues: "(1) Whether each finding of fact is supported 

by a preponderance of reliable, probative, and substantial 

evidence/ (2) Whether eac h conclusio n of law is .Tiade in 

accordance with applicable law, precedent, and public policy; 

and (3) Whether the administrative law judge committed any 

prejudicial errors that support the appeal." 14 C.F.R. 

§ T 3. 2.33(b) (l)-(3) . 

ISSUES 

1 . Whether the ALJ erred when he determined that Respondent 

operated ten flights on August 7, 2009 without a fuel 

filler cap and with duct tape covering the fuel port. 

2 . Whether the Decisionmaker should reduce the civil penalty 

where Respondent asserts financial hardship on appeal but 

did not raise the issue at hearing. 

ARGUMENT 

(1) The ALJ properly detenninad that Respondent operated 

tan flights on Augrust 7, 2009 based on a preponderance of 

the reliable, probative evidence. 

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Complainant proved by a preponderance of the evidence that 

Respondent conducted ten flights.on August 7, 2009. In his 

initial decision, the ALJ found: 

As noted. Respondent admitted the facts 

underlying the charges. Rushmore's witnesses 

each acknowledged that its Bell 206 helicopter 

known as 68 Whiskey had operated ten flights 

without a fuel filler cap and with, duct tape over 

the area (Initial Decision {''I. D.") , p. 2) . 

initial Deci .sion at b . While Respondent adrr.its that it operated 

the aircraft after substituting duct tape for the fuel filler 

cap. Respondent argues that the ALJ erroneously determined that 

"Rushmore's witnesses each acknowledged" that Rushmore operated 

the helicopter on ten flights. Therefore, according to 

Respondent, "the Initial Decision should be reversed as to its 

findings and conclusions that ten flights occurred on 

August 1, P009." (Respondent Brief at 8). 

Respondent's argument focuses only on the ALJ's finding of 

what Rushmore witnesses "acknowledged" while disregarding the 

totality of reliable, probaLive, and substantial evidence: In 

addition to testimony from Rushmore pilot Leffert and owner 

Jacob, the ALJ was entitled to rely on the testimony of FAA 

Inspector Kwasniewski, including his testimony regarding the 

Respondent' 3 flight , records for August 6 a.nd 7 entered into 

evidence as Agency EAhibi ts 3 and 4, respectively, to determine 
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that Complainant proved by a preponderance of the evidence that 

Respondent operated N2268W on ten flignts on August 7, 2009. 

a. FAA Inspector Kwasniewski'9 testimony supports the ALJ's 

finding that Rushmore conducted ten flights in N22 68W on 

August 7, 2009. 

On appeal, Respondent notes that Inspector Kwasniewski's 

testimony about.Mariah Weller's statement concerning the 

incorrect August 6 date on the August 7 flight record is 

hearsay. (Respondent Brief at 4). Respondent acknowledges that 

hearsay evidence is admis.sible and may be considered in an 

administrative proceeding but argues that Ms. Weller's statement 

is insufficient for Complainant to meet his burden of proving 

the ten flights. 

However, Respondent's argument, considers the hearsay 

statement in isolation while completely ignoring corroborating 

direct evidence. S_e_B Trans World Airlines, FAA Order No. 98-11 

at n.l8 (June 11, 1996) (stating that hearsay statements that 

are consistent with and corroborate testimony presented by 

witnesses at the hearing are worthy of consideration); cf. High 

Exposure, Inc., FAA Order No. 2003-7 at 5 (Sept. 10, 2033) 

(noting LhaL hearsay testimony in the absence of corroborating 

documentation constitutes uncompelling and unsubstantiated 

hearsay"). On August 7, Inspector Kwasniewski directly observed 

Ms, Weller remove the flight record from the folder at the 

Keystone location, turn around to make a copy, then hand 
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Inspector Kwasniewski the copy, (Tr. 66-67; Agency Exhibit 4] . 

Ms. Weller contemporaneous]y told Inspector Kwasniewski that it 

was the record for that day, August.. 7, and that the previous 

days' records are net kept at Key.^tone but are taken to the 

Custer location. (Tr. 66). . On that same day, August 7, 

Inspector Kwasniewski confirmed Weller's statement that previous 

days' record.s are- taken to Custer when he drove to Custer and 

did, in f cact, locate and get a copy of the flight record from 

August 6, the previous day. (Tr. 33; Agency Exhibit 3) . 

The preponderance of reliable, substantial, and probative 

evidence showed that the flight record that Ms. Heller gave to 

Inspector Kwasniewski on August 7, was in fact the August 7 

record incorrectly dated as August 6. That flight record for 

August 1, 2009 indicates that Respondent operated N2268W, on ten 

flights. r'ron this evidence, the ALJ properly concluded that 

Respondent operated N2268W on ten flights on August 7, 20C9. 

b. Pilot Robert Lefferfs testimony supports the ALJ's finding 

that Leffert conducted ten flights in N2268W on 

August 7, 2009. 

?,esponden~ cites Pilot Leffert's testirr.ony during 

Complainant's direct examination to support Respondent's 

contention that the .ALJ erred in finding the ten flights: 

Q: Do you know how many flights you took on 

August 7th of '0 9 with duct tape over the .fuel 

port? 

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A: According to the records, there was about ten 

flights. I don't remember doing that many, but 

that was, apparently the case. 

Respondent Brief at 4; Tr. 76-77. Respondent speculates that" 

Leffert's qualifying statement, ''according to the records," 

could indicaLe that Complainant'had put words in his mouth as to 

the number of flights. See Respondent Brief at 4. However, 

Respondent's speculation Is not supported by the case record. 

The case record shows that Complainant's counsel asked Leffert a 

clear, non-leading question as to the number of flights: "Do you 

know how many flights you took on August 7th of '05 with duct 

tape over the fuel port?" (Tr. 16-11]. Leffert answered tnat 

the records indicated ten flights, even though he did not recall 

specifically conducting ten flights. 

The flight records depicted in Agency Exhibits 3 and 4 are 

business records of Respondent's own creation and kept in the 

ordinary course of its business. Complainant introduced these 

exhibits into evidence without Respondent's objection.~ 

Respondent recorded the ten flights on the record for August 7, 

as depicted in Agency Exhibit 4. Therefore, in addition to 

Inspector Kwasniewski's testimony, the ALJ properly relied on 

Pilot Leffert's testimony and Respondent's flight record to 

' While H^spondent did not object at hearing, Hespo.-ident did note 

that both flight records were dated as August 6. (Tr. 35; Agency 

Exhibits 3 and 4). 

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determi ne that Rushmore witnesses-acknowledged the operation of 

ten flights on August 7, 2009.-^ 

c. Rushsxore President Michael Jacob's testimony supports the 

ALJ'3 finding that Respondent operated ten flights in 

N2268W on August 7, 2009. 

Complainant introduced into evidence Respondent's August 6 

and August 7 flight records, marked as Agency Exhibits 3 and 4, 

respectively. (Tr. 35, 37-33). While Jacob did not object, he 

noted that "'the flight schedules are dated August 6, instead of 

one being dated August 7." (Tr. 35). The ALJ then advised Jacob 

to "'make sure that you highlight that in your case in chief." 

(Tr. 3[>) . 

Jacob did not highlight that in his case-i n-chief a s 

advised by the ALJ. Rather, Jacob's narrative testimony 

consisted of (1) an admission that Respondent operated the 

aircraft with duct tape covering the fuel port on August 6 and 7 

(Tr. liy-119) and (2) his opinion that the duct tape did not 

render the aircraft unairworthy, and that Leffert, as pilot in 

command, was responsible for determining that the aircraft was 

safe to operate. (Tr. 118-119). Because Jacob failed to address 

the issue of the flight record dates as depicted in Agency 

^ Although Leffert was called by Complainant and therefore was 

not technically a witness for Respondent, the ALJ's error, if at 

all, was harmless when he implied that Leffert was a witness for 

Rushmore in determining that, "Rushmore's witnesse.= each 

acknowledged" that Rushmore operated the helicopter on ten 

flights. Initial Decision at 5. 
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F-xhioits 3 and 4 as ihe ALJ had suggest fed to him, Corapl ainant 

was not obligated to expand the scope of his cross-examination 

beyond Jacob's narrative testimony by asking Jacob about the 

flight records.' Therefore, Respondent's argument on appeal that 

so.iieone should hive questioned Jacob about the flight records is 

unavailing, especially in view of. the ALJ having cued him that 

.^e should address this issue in his case in chief if he wanted 

to cto so. 

Once Complainant met his burden of producing evidence that 

Respondent conducted ten flights, the burden of production 

shifted to Respondent to show that Respondent did not conduct 

ten flights. See Eniery Worldwide A.irlir.es^ Inc., FAA Order No. 

57^30 (Oct. 7, 1997) (determining that .AL J's finding that 

company operated aircraft v/ithout lens covers in the cargo 

comparLr[:ent wa.^ supported by a preponderance of the evidence 

when ALJ credited FAA inspector's testimony and maintenance logs 

showing that the lens covers were missing over Respondent's 

testimony that lens covers were ixn place] . Accordir^.gly, after 

Complainant produced evidence showing that Respondent operated 

Jacob raised the issue of the flight records only during his 

cross-examination of Inspector Kwasniewski, Inspector 

^''•asniewski's tesLlmony on cross-examination regarding the 

-light records was only that both flight records obtained on 

August 7, 2009, one from the Cu.ster location and the other from 

the Keystone location, were dated August 6. (Tr. 62). 
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•ten flights on August 7, Respondent had the burden of producing 

some evidence that it did not operate ten flights on that day. 

Respondent' failed to meet its burden. Respondent notes 

that Leffert testified for Complainant, and therefore that Jacob 

was the only witness for Rushmore. Respondent then implies that 

because Jacob did not specifically admit that Respondent 

conducted ten flights, the ALJ must have erred by finding that, 

''Rus.hrTiore' s wi-ness^s each acknowledged that its [helicopter] 

had operated ten flights ... " Respondent Brief at 3-4; Initial 

Decision at 5. While Jacob did not specifically state that 

Respondent operated ten flights in N22 66W on August '/, he 

adiTiitted that the flights were flown, and he neither objected to 

the admission of the flight records nor did he specifically 

contest the number of flights listed on the August 7 flight 

record when, as discussed above, the burden of production had 

shifted T.o Respondent to rebut Complainant' s allegation of ten 

flights. After Respondent admitted that it operated N2266W on 

August 7, 2009, Respondent failed to produce some evidence 

showing that it did not operate ten flights on that date. 

Therefore, the ALJ did not err when he found that Rushmore's 

v/itnesses acknowledged that its helicopter operated ten flights 

without a fuel filler cap and without duct tape covering the 

fuel port. 

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In sum, Complainant' proved by a preponderance of th*i 

evidence that Respondent conducted ten flights in N2268W on 

August 7, 2009. Complainant met its burden through testimony of 

E"AA Inspector Kwasniewski and Pilot Leffert that Respondent 

conducted the ten flights as depicted in the August 7 flight 

record, incorrectly dated as August 6, 3ee Agency Exhibit 4. 

Jacob's admission that the flights were flown and his failure to 

contest the ten f1ight entries on the flight record depicted in 

Agency Exhibit 4 further supported the P^LJ's determination that 

Respondent conducted ten flights. Respondent's efforts on appeal 

Lo cast the number of flights as an issue when he chose not to 

in his case in chief, is therefore unavailing. 

(2) The FAA Decisionmalcer should not reduce the civil 

penalty where Respondent failed to raise the issue of 

financia.1 hardship at the hearing. 

On appeal. Respondent concedes that it "would havo had the 

burden to prove any assertion of financial hardship." Respondent 

Bjrief at 6. However, Respondent goes on to assert that it 

"-=5hoL:ld onlybe incumbent on Rushmore to [bear the burden of 

ptoving financial hardship] if evidence is presented alleging 

that it had the ability to pay and that it would not affect its 

ability to stay in business." Respondent Brief at 6. 

Respondent's attempt to shift the burden of proving 

linancial hardship to Complainant ignores altogether 

longstanding precedent establishing that "financial hardship and 

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inability to pay are affirmative defenses that the respondent 

has the burden of proving by a preponderance of the reliable, 

probative, and substantial evidence." Atlas Frontiers, LLC, FAA 

Order Mo. PQIQ-IO at 6 (June 16, 2010); Salvatore Giuffrida, FAA 

Order Ho. 1992-72 at 2 (Dec. 21, 199?); see 14 C.F.R. 

§ 13.244(c) (providing that the respondent bears the burden of 

provin<3 affirmative, defenses) - -Thus, the burden of proving 

financial hardshi p falls squarely on Respondent.^ 

The Adrr.inistrator has explained that a respondent, not the 

FAA, i s 1-1 the best position of knovJing and producing evidence 

related t o a respondent' s' ability to pay. See Costello, FTlA 

Order No. 93-10 at 4 (Mar, 25, 1993] (upholding ALJ's assessment 

of civil penalty against the respondent, finding that the 

respondent failed to rai.se the issue of financial hardship at 

hearing and sLaLing that "the person who claiTns financial 

hardship bears the burden of proof because the financial 

information at issue is within his of her exclusive control"). 

•' Respondent suggests that new information regarding its 

financial condition has arisen since the hearing and should be 

considered on appeal. Respondent Brief at 7. However, the two 

affidavits Respondent attaches to its appeal brief show that 

Respondent's financial hardship claim is largely based on 

in format.: on that pre-dated the April 27, 2011 hearing. Micnael 

Jacob Affidavit at paragraphs 2, 4, 7, 8, and 9; Shelley Dykstra 

Affidavit showing profit and loss state.'T^ent. In fact, 

Pespo.ndent, through its affidavits, asserts that' it experienced 

financial hardship as long as one year before the April 27, 2011 

hearing. Jacob affidavit at paragraph 2 . Therefore, Respondent 

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Respondent was in exclusive control of its financial 

Information. However, at hearing. Respondent failed to raise 

the issue of, or produce any evi.dence relating to' financial 

hardship as required by precedent. See Tabula, FAA Order Uo. 

2010-6 (June 15, 2010} (upholding the ALJ's civil penalty 

assessment against the respondent, noting that "[a] respondent 

attempting to prove inability to pay must substantiate his 

claims at- the hearing with the types of records that a 

reasonable person would accept as probative on the issues of 

income and expenses"). Id. at 7; see Giuffrida, FA-A Order No. . 

1992,-72 (Dec. 21, 1 992) . 

Only now, on appeal, and with no opportunity for 

Complainant to cross-exam Respondent, does Rushmore raise the 

issue of financial hardship and attach documentation attempting 

to support its claim. In Tabula, the respondent on appeal 

attached documentation attempting to show financial hardship. 

However, the Administrator found that on appeal, it was too late 

for the respondent to submit evidence of financial hardship 

because the significance of such evidence "cannot be clarified 

through cross-examination." Tabula, FAA Order No. 2010-6 at 7, 

For the same reason. Respondent's production of documentation 

attempting to substantiate financial hardship i.s untimely. 

should have presented this information at hearing. On appeal, 

the Decisionrriaker should not consider this ''new" information. 

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In cases where a respondent fai.l ed to introduce evidence of 

financial hardship .at the hearing, the Administrator has upheld 

the civil penalty. See, e.g^, Folsom's Air Service, Inc., FAA 

Order l-^o. 2008-11 at 7-9 (Nov, 6, 2008); Costello, FAA Order No. 

93-10 at 4. In the present case. Respondent failed even to 

raise the issue of financial hardship at the hearing. Contrary 

to Respondent's assertions, the ALJ was not required to consider 

Respondent's ability to pay the civil penalty and the effect on 

the Respondent's ability to stay in business when Respondent 

never put the ALJ on notice at hearing that .financial hardship 

was an issue. Consequently, and i n accordance with precedent, 

t h e Decisionmaker must reject Respondent 's claiiu s of fina.tcial 

hardship as untimely and affirm the ALJ's civil penalty 

assessment. 

The ALJ thoroughly justified his civil penalty assessment 

of ^?.?., TiOO. Initial Decision 7 . He noted that Complainant 

determined the civil penalty under its sanction guidance. Id. 

The ALJ explained that the amount of civil penalty was wiLhin 

the TAA's sanction guidance found in FAA Order 21b0.3B and was 

appropriate given that Respondent's helicopter was "flown 

outside of the specifications of its type certificate and in an 

unsafe manner on ten occasions," and that "these actions placed 

the traveling public at a significant and unacceptable risk." 

Id. 

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CONCLUSION 

For all of the foregoing reasons. Complainant respectfully 

requests that the Administrator affirm the ALJ's Initial 

Decision and Order finding that Respondent violated 1^ C.F.R. 

§§ 91.7(a) and 91.13(a) as set forth in the Complaint, and 

uphold the ALJ's civil penalty assessment of $22,500. 

Respectfully submitted. 

Peter J. Lynch 

Assistant Chief Counsel 

Enforcement Division, AGC-300 

By: 

J#in C. Stuart, Jr. 

A^ t orne y, AGC- 3 0 0 

Federal Aviation Administration 

Office of the Chief Counsel 

8 00 Independence .Avenue, S . W. 

Washington, D.C, 20591 

(202) 267-9958 

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CERTIFICATE OF SF.RVICE 

I hereby certify that I. have sent via personal delivery, 

one original and two copies of the Complainant's Reply to 

Respondent's appeal of the .ALJ'3 initial decision, addressea to: 

Federal Aviation A.dn'.inistration 

600 Independence Ave, SW. . 

Wilbur Wright Building - Suite 2H1000 

Washington, DC 20o91 

Attention: Hearing Docket Clerk, AGC-430 

In addition, I hereby certify that I have on this date sent 

by certified mail, return receipt requested, one copy addressed 

to; 

Frank A Bettman, Esq. 

Bettmann Hoque s. Diedrich 

Counsel for Respondent 

1^06 Mountain View Road, Suite 101 

Rapid City, SD 57702-4349 

Dat'ed: December 30, 2011 

20