U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION H 

MAR 2 5 2015 

lNG DOCKFT 

FEDERAL AVIATION ADMINISTRATION COMPLAINANT 

v. DOCKET NO. FAA-2014-0866 

CASE NO. 2013S0950114 

MISSISSIPPI AIR EXPRESS, LLC RESPONDENT 

RESPONDENT'S REBUTTAL TO ADMINISTRATOR'S 

RESPONSE TO MOTION TO DISMISS 

Respondent, Mississippi Air Express, LLC, files this its Rebuttal to Administrator's 

Response to Motion to Dismiss, and in support thereof, would show unto the Office ofHearings, as 

follows: 

FIRST REBUTTAL 

Respondent's Motion to Dismiss must be granted because Mississippi Air Express, LLC is 

a one member limited liability corporation; with one owner; and with no employees. The FAA 

claims that Mississippi Air Express, LLC should pay a civil penalty for an alleged failure to set up 

an anti -drug and alcohol misuse prevention program which would be set up the one owner; to test 

the owner for drug abuse; require the same owner to obtain his test results; and for the owner to 

report his drug test results to himself and the FAA. The FAA's contention is ludicrous and requires 

the Administrative Judge to dismiss this case. 

Matthew Couch, in an effort to comply with the drug testing regulation, submitted to drug 

testing; registered with the applicable agencies; and placed himself into a random drug testing pool. 

Matthew Couch, upon being chosen for drug screening, passed the drug test. Respondent has 

provided proof of successful testing; shown that Matthew Couch passed the drug test; shown that 
Respondent is in good standing; and shown that Respondent complied with mandatory random drug 

screening. What more could the FAA expect out of Mississippi Air Express, LLC? 

SECOND REBUTTAL (Incorrect Allegation Date) 

The Administrator did not make his facts clearly known in any of the Notice documents, 

specifically the Notice of Proposed Civil Penalty, the Amended Notice of Proposed Civil Penalty, 

and the Final Notice of Proposed Civil Penalty. All three (3) Notices claimed Mississippi Air 

Express, LLC committed violations on certain dates there were no violations committed on the 

alleged dates and the FAA's Complaint must be dismissed. The FAA was placed on notice of these 

errors and despite being made aware of the error in date, the FAA continued to prosecute the case 

and never corrected the dates in question. The Notices are unclear, not correct and defective, and 

therefore, the Complaint must be dismissed. 

THIRD REBUTTAL <Untimely Prosecution/Administrator's Claims are Time Barred) 

The Notices and Complaint allege certain violations occurred on certain dates. The FAA 

now admits that no violations occurred on the dates named in the Complaint. The Notices carmot 

be amended since the violations occurred well after the two year time limit for prosecuting alleged 

violations and the FAA Complaint is time barred as to any amendments. Therefore, the Complaint 

is untimely and should be dismissed. 

FOURTH REBUTTAL (Improper Allegations Concerning an Employee) 

Secondly, theN otice of alleged violations specifies actions committed by Donte Abburzzese, 

who the FAA claims is an employee of Mississippi Air Express, LLC. Counsel for Respondent has 

notified the FAA through written correspondence that Donte Abburzzese was not an employee at all 

of Mississippi Air Express, LLC but was in fact, an employee of another company, Spirit Airlines. 

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The allegations of the FAA are false. The FAA was put on notice of this false allegation and yet, 

the FAA continues to prosecute this case. The FAA does not have any proof that Donte Abburzzese 

was an employee ofMississippi Air Express and the Respondent has proven that Donte Abburzzese 

was not employed by Respondent and therefore, the Complaint should be dismissed. 

FIFTH REBUTTAL (Satisfactory Drug Testing and Passage) 

The Administrator claims that Respondent's pilot, Matthew Couch, failed to submit to drug 

testing and was therefore unqualified to serve as a pilot. Respondent has provided the Administrator 

with proof that Matthew Couch did indeed submit to drug testing, registering with the applicable 

agencies and placing himself into the random drug testing pool. Upon being chosen for screening, 

Matthew Couch passed the screen. Respondent has provided proof of a successful screen and yet, 

this prosecution persisted. It is has been shown that Respondent is in good standing and compliant 

with mandatory, random drug screens, and therefore, the Complaint must be dismissed. 

SIXTH REBUTTAL (Compliance with Policies and Procedures) 

Administrator has falsely claimed that Respondent has failed to comply with operating 

procedure by failing to have posted educational materials; materials explaining alcohol testing 

requirements; and the employer's policies and procedures with respect to meeting those 

requirements. As has been shown to the Administrator, Mississippi Air Express, LLC's educational 

program included at least the following elements: 

a. display and distribution of informational materials 

b. display and distribution of a community service hat-line telephone number 

for employee assistance; 

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c. display and distribution of employer's policy regarding drug use in the 

workplace 

All of the claims made by the FAA have been addressed and explained in previous 

correspondence to the FAA. Counsel for Mississippi Air Express, LLC have clarified and explained 

to the FAA that no fault existed on the part of Mississippi Air Express, LLC. 

The Complaint must be dismissed because the Complaint was not timely filed. The events, 

of which the Federal Aviation Administration complains, did not occur in 2012; the FAA has 

delayed in prosecuting this case; and the Complaint should be dismissed for failure to timely 

prosecute. 

A dismissal is proper in this case because Mississippi Air Express, LLC has not been 

afforded a speedy trial and the Complaint against Mississippi Air Express, LLC has not been 

prosecuted in a timely fashion. No events occurred in 2012, and the Federal Aviation Administration 

waited an excessive amount of time to submit the Final Notice of Proposed Civil Penalty to 

Mississippi Air Express, LLC. The Federal Aviation Administration has delayed prosecution of this 

case to the detriment of Mississippi Air Express, LLC; has prejudiced Mississippi Air Express, LLC 

in the Defense of its case, and therefore the Complaint must be dismissed. 

Further, the Complaint must be dismissed because Mississippi Air Express, LLC's actions 

did not endanger the pilot, the passengers or crew members of any aircraft and the actions of 

Mississippi Air Express, LLC were not detrimental to air safety. Lastly, the Complaint should be 

dismissed because the Complaint fails to state a claim, cause of action, reason or justification for 

Complaint. 

Respondent again requests that oral arguments be held on this Motion to Dismiss. 

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Respectfully submitted, this the 24'h day of March, 2015. 

MISSISSIPPI AIR.EXP'RESS! LLC 

"'~~ ·, ~E. FERRELL, m: 

OF COUNSEL: 

WAYNE E. FERRELL, JR. 

Mississippi Bar No. 5182 

Attorney at Law 

Law Offices of Wayne E. Ferrell, Jr., PLLC 

405 Tombigbee Street 

Post Office Box 24448 

Jackson, Mississippi 39225-4448 

(601) 969-4700 

CERTIFICATE OF SERVICE 

I, Wayne E. Ferrell, do hereby certify that I have this day forwarded a true and correct copy 

of the above and foregoing document to the following: 

Via Federal Express 

Original and One Copy to: 

ATTN: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

600 Independence Avenue SW 

Wilbur Wright Building, Suite 2W1000 

Washington, DC 20591 

Via U. S. Mail, postage, prepaid 

One Copy to: 

Hone. J. E. Sullivan, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

Mr. Deitrick H. Johnson 

Office of Regional Counsel 

Southern Region 

5 
Federal Aviation Administration 

P. 0. Box 20636 

Atlanta, GA 30320 

Via Facsimile to: 

Fax No. 202-366-7536 

Hone. J. E. Sullivan, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

This the 24'• day of March, 2015. 

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