U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION 

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## MAR 25 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 Motionto Dismiss, and in support thereof, would show unto the Office ofHearings, as follows: FIRST REBUTTAL Respondent's Motion to Dismiss mustbe 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 himselfand 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 withthe applicable agencies; andplacedhimselfinto arandom drug testingpool. Matthew Couch, upon being chosen for drug screening, passed the drug test. Respondent has provided proofofsuccessful testing; shown that Matthew Couch passed the drug test; shown thatRespondent is ingood standing; and shownthatRespondentcompliedwithmandatoryrandom drug screening. What more could the FAA expect out ofMississippi Air Express, LLC? SECOND REBUTTAL (Incorrect Allegation Date) The Administrator did not make his facts clearly known in any ofthe Notice documents, specifically the Notice ofProposed Civil Penalty, the Amended Notice ofProposed 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 Complaintmustbe dismissed. The FAAwas placed on notice ofthese

errors and despite being made aware ofthe 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 andthe FAA Complaintis time barred as to any amendments. Therefore, the Complaint is untimely and should be dismissed. FOURTH REBUTTAL (Improper Allegations Concerning an Employee) Secondly,theNoticeofallegedviolations specifies actions committedbyDonteAbburzzese, who the FAAclaims is an employee ofMississippi Air Express, LLC. Counsel for Respondent has notifiedthe FAAthroughwritten correspondence thatDonte Abburzzese was not an employee at all ofMississippi Air Express, LLC but was in fact, an employee ofanother company, Spirit Airlines.
2The allegations ofthe FAA are false. The FAA was put on notice ofthis false allegation and yet, the FAAcontinuesto prosecutethis case. The FAA does nothave any proofthatDonte Abburzzese

was anemployee ofMississippi AirExpress andthe Respondent has proventhatDonteAbburzzese

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 andwas thereforeunqualifiedto serve as apilot. Respondenthas providedtheAdministrator with proofthat Matthew Couch did indeed submit to drug testing, registering with the applicable agencies and placing himselfinto the random drug testing pool. Upon being chosen for screening, Matthew Couch passed the screen. Respondent has provided proofofa successful screen and yet, this prosecutionpersisted. Itis 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 shownto the Administrator, Mississippi Air Express, LLC's educational program included at least the following elements:

a. display and distribution ofinformational materials b. display and distribution ofa community service hat-line telephone number for employee assistance;



### 3c. 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 correspondenceto the FAA. Counsel for MississippiAirExpress, LLC have clarified and explained to the FAA that no fault existed on the part ofMississippi 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 atimelyfashion. No events occurredin2012, andthe FederalAviationAdministration waited an excessive amount of time to submit the Final Notice of Proposed Civil Penalty to Mississippi Air Express, LLC. The Federal AviationAdministrationhas delayed prosecution ofthis

caseto the detriment ofMississippi AirExpress, LLC; has prejudicedMississippi AirExpress, LLC in the Defense ofits 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 ofaction, reason orjustification for Complaint. Respondent again requests that oral arguments be held onthis Motion to Dismiss. 

### 4Respectfully submitted, this the 24'h day ofMarch, 2015. MISSISSIPPI AIR.EXP'RESS! LLC

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# ~E. FERRELL,

# m: OF COUNSEL: WAYNE E. FERRELL, JR. Mississippi Bar No. 5182 Attorney at Law Law Offices ofWayne 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 ofthe 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 ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 Mr. Deitrick H. Johnson Office ofRegional Counsel Southern Region 

### 5Federal Aviation Administration P. 0. Box 20636 Atlanta, GA 30320 Via Facsimile to: FaxNo. 202-366-7536 Hone. J. E. Sullivan, Administrative Law Judge Office of Hearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 This the 24'• day ofMarch, 2015.



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