U.S.DEPARTMENTOFTRANSPORTAT1l01NOCT ··I P f: 34 

OFFICE OF HEARINGS 

In The Matter Of: 

HELOAIR, INC. 

Respondent 

WASHINGTON, DC 

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Docket No. FAA-2012-0472 

Case No. 2011 EA-21-0081 

ORDER DENYING RESPONDENT'S MOTION TO DISMISS 

AND GRANTING/DENYING OTHER RELIEF 

On May 17, 2012 the Federal Aviation Administration (FAA) issued a Complaint, 

charging the Respondent, HeloAir, Inc., with multiple safety violations. 

On August 13, 2012 the Respondent, HeloAir, Inc, filed an Answer, and a Motion to 

Dismiss. 

On September 6, 2012 the FAA filed both an Amended Complaint and the Agency's 

Answer to Motion to Dismiss. · 

On September 19, 2012, the parties appeared by telephone for a Rule 16 Litigation 

Scheduling Conference, and discussed their calendar availability, hearing dates, and other 

litigation procedural matters. Among other things, the parties agree to reappear on September 

27, 2012 for oral argument on the Respondent's Motion to Dismiss. 

On September 24, 2012 an Order Setting Litigation Dates and Procedures was filed. 

Among other things, this Order adopted and confirmed the parties' nunc pro tunc Stipulation that 

the Respondent's August 13, 2012 Answer and Motion: to Dismiss was timely filed in response 

to the FAA's May 1 7, 20 12 Complaint. 

On September 27, 2012 the parties appeared by telephone for oral argument on the 

Respondent's Motion to Dismiss. Oral rulings were issued at the conclusion of oral argument. 

This written Order Denying Respondent's Motion to Dismiss codifies and supplements the 

September 27, 2012 oral rulings. 

IT IS HEREBY ORDERED: 

1. Pursuant to 14 C.F.R §13.208, 14 C.F.R. § 13.214, and Civ. R. 15(a), the Respondent's 

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August 13, 2012 Motion to Dismiss did not preclude the FAA from filing the September 6, 

2012 Amended Complaint. See, Am. Int'l Speciality Lines Ins. v. United States, 71 Fed: Cl. 

37, 39 (2007)(A motion to dismiss does not preclude the plaintiff from filing an amended 

complaint as a matter of course). 

2. The FAA's September 6, 2012 Amended Complaint superseded the FAA's May 17,2012 

Complaint. See, 3-15 Moore's Federal Practice~Civil § 15.17 (2012)(An amended pleading 

complete in itself supersedes the prior pleading). 

3. The Respondent's August 13,2012 Motion to Dismiss was not rendered moot by the FAA's 

September 6, 2012 Amended Complaint, given that the Respondent's Motion to Dismiss 

alleged purported defects that·remained in the FAA's Amended Complaint. See, Am. Int'l 

Specialty Lines Ins. Co. v. U.S., 71 Fed. Cl. 37, 39, Opinion and Order (May 5, 2006) ("If 

some of the defects raised in the original motion remain in the new pleading, the court simply 

may consider the motion as being addressed to the amended pleading." (quoting Charles 

Alan Wright et al., Federal Practice and Procedure § 1476 (2d ed. 1990)). 

4. Pursuant to 14 C.F.R §13.208(d), the Respondent's Motion to Dismiss on the grounds of 

staleness, addressed to the FAA~ s Amended Complaint, is denied. 

5. Pursuant to 14 C.F.R. § 13.214(b)(l), 14 C.F.R. § 13.208(d), and Civ. R. 15(c)(1)(A) and 

(B), the FAA's September 6, 2012 Amended Complaint was timely filed based on the 

Amended Complaint's asserted date of July 20, 2011 for the first alleged violation. 

6. Pursuant to 14 C.F.R. § 13.208(c), the FAA's September 6, 2012 Amended Complaint 

provides timely and·adequate notice to the Respondent of the alleged factual and legal safety 

violations, and the FAA's proposed civil penalty for the same. See, Aloha Airlines, Inc. v. 

CAB, 598 F. 2d 250, 262 (D.C. Cir. 1979)(An administrative pleading is sufficient if''the 

respondent 'understood the issue' and 'was afforded full opportunity' to justify its conduct 

during the course of the litigation"). 

7. The Respondent's alternate argument in its Motion to Dismiss of"reasonable reliance," is 

equivalent to the affirmative defense of equitable estoppel, and is denied at this time, since it 

has not yet been fully developed by the Respondent. See, e.g., Office of Personnel 

Management v. Richmond, 496 U.S. 414, 110 L. Ed. 2d 387,419 (1990)("equitable estoppel 

will not lie against the government as it lies against private litigants" and requires, among 

other proof, affirmative misconduct by the government to the detriment of the movant). 

Attachment: Service List 

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FDMS NO. FAA-2012-0472 

{Civil Penalty Action) 

SERVICE LIST~ BY U.S. MAIL and FAX . 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building-Suite 2Wl 0001 

John G. Butler, III, Respondent's Counsel 

SANDS ANDERSON PC · 

Bank of America Center 

1111 East Main Street, Suite 2400 

Richmond VA 23219 · 

TEL: 804-648-1636 

FAJ(: 804-783-7291 

Whit Baldwin, President 

Heloair, Inc., Respondent 

· 5721 Gulfstream Road 

Richmond, VA 23250 · 

ONE COPY 

. Zachery M. Berman, Complainant's Counsel 

Office of the Regional Counsel, AEA-7 

Eastern Region 

· Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: 718-553-3258 

FAJ(: 718-995-5699 

The Honorable J.E. Sullivan, Administrative Law Judge . Office of Hearings, M-20 

U.~. Department ofTransportation 

1200 New Jersey Avenue, S.K (i:H 1-310) 

Washington, DC 20590 · 

TEL: 202-366-2132 

FAJ(: 202-366-7536 

1 

For service in person or by expedited co~ier, use the following address: Federal Aviation Administration, 

600 Independence Avenue, s~w., Wilbur Wright auilding-8uite 2Wl000, Washington, DC 20591; Attention: 

Hearing Docket Clerk, AGC-43E>.