U. S. DEPARTMENT OF TRANSPORTATION rr^. 

OFFICE OF HEARINGS V!^ 

WASHINGTON, D.C. 

IN THE MATTER OF 

EMPIRE FLIGHT ACADEMY 

Respondent 

FDMS NO. FAA-2010-0290 

HONORABLE RONNIE A. YODER 

CHIEF ADMINISTRATIVE LAW JUDGE 

r 

iRECfciVEt 

HEARING rM^CKEl 

Hearing Date: NONE ASSIGNED — -•^J ^ 

Hearing Location: NONE ASSIGNED -- ^'p.^ J 

ANSWER TO AMENDED COMPLAINT AND AFFIRMATIVE DEFENDS ? §^ ' 

rs— o5 

COMES NOW, EMPIRE FLIGHT ACADEMY, by and through undersigned counsel, 

pursuant to Rule 209 of the Rules of Practice (14 C.F.R. §13.209), and hereby files the following 

Answer to the Amended Complaint dated May 12,2011. 

ANSWER 

1. EMPIRE FLIGHT ACADEMY denies that it violated 14 C.F.R. §91.7(a). 

2. Any matter not specifically admitted by EMPIRE FLIGHT ACADEMY shall be deemed 

denied. 

AFFIRMATIVE DEFENSES 

1. EMPIRE FLIGHT ACADEMY was not the owner of the aircraft in question. 

2. EMPIRE FLIGHT ACADEMY was not the operator of tiie aircraft in question. 

3. EMPIRE FLIGHT ACADEMY is not the entity that performed the aircraft maintenance 

in question. 

4. EMPIRE FLIGHT ACADEMY did not operate the aircraft in an unairworthy condition. 
5. The subject aircraft was not in an unairworthy condition. 

6. EMPIRE FLIGHT ACADEMY relies upon the affirmative defense of reasonable 

reliance. 

7. In determining the civil penalty amount, the Complainant has failed to consider (1) the 

nature and circumstances of the violation; (2) the extent and gravity of the violation; (3) 

the respondent's degree of culpability; (4) the respondent's history of prior violations, if 

any; (5) the respondent's ability to pay the civil penalty; (6) the effect on the entity's 

ability to stay in business; and (7) other matters as justice may require. See 49 U.S.C. 

§46301(e)(2); See also Folsom'sAir Service, Inc., FAA Order No. 2008-11 (November 6, 

2008), p. 11. 

8. In determining the civil penalty amount, the Complainant has failed to determine whether 

the violation was inadvertent or deliberate. 

9. In determining the civil penalty amount, the Complainant has failed to consider the 

Respondent's size, particularly in determining the alleged offender's ability to absorb the 

sanction. 

10. The proposed civil penalty fails to reflect the totality of the circumstances surrounding 

the violations. See Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6, 

2008), p. 12; Eastern Air Center, Inc., FAA Order No. 2008-3 (January 28, 2008). 

11. Finding multiple violations for the same offense would constitute '"piling on' [that] 

should be avoided except under the most egregious circumstances." In the Matter of 

Carr, FAA Order No. 1998-2 at 11-12 (March 12,1998). 

12. EMPIRE FLIGHT ACADEMY does not have the financial ability to pay the proposed 
civil penalty, 

13. The proposed civil penalty would have a detrimental effect on the ability of EMPIRE 

FLIGHT ACADEMY to continue doing business. 

14. The Federal Aviation Administration's (FAA's) interpretation of its Federal Aviation 

Regulations in this case is arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law. See 5 U.S.C. § 706(2) (A); Watkins v. NTSB, 178 F.3d 959,961 

(8th Cir. 1999), 

15. The FAA's interpretation of its aviation regulations is unconstitutionally vague. See 

Thomas v. Hinson, 74 F.3d 888, 889 (8th Cir. 1996); see also Trans States Airlines, Inc. 

V. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006); Heath v. SEC, 2009 U.S. App. LEXIS 

24128 at 53-55. 

16. The FAA's application of its Federal Aviation Regulations in this case is contrary to the 

regulation's plain language. See Advanta USA, Inc. v. Chao, 350 F.3d 726, 728 (8th Cir. 

2003), quoting Gardebring v. Jenkins, 485 U.S. 415,430, 108 S. Ct. 1306,99 L. Ed. 2d 

515 (1988). See also Trans States Airlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 

2006). 

17. EMPIRE FLIGHT ACADEMY asserts that the Complainant has failed to state a claim 

upon which the relief requested may be granted. 

18. EMPIRE FLIGHT ACADEMY asserts that the Complainant lacks substantial basis in 

law and fact to continue prosecution of this matter against it. 
Dated this 13th day of May 2011. 

Respect itted, 

GREeWl^^^^xWINTON, ESQ. 

The AXaation Law Firm 

On^iResearch Court, Suite 450 

R^kville, MD 20850 

Tel: (301) 294-8550 

Fax: (301) 294-2525 

Greg@AviationLawExperts.com 

Counsel for Respondent 
CERTIFICATE OF SERVICE 

I hereby certify that I have this date served by regular U.S. mail, postage prepaid, an original 

and one (1) copy of the foregoing Answer to Amended Complaint and Affirmative Defenses 

addressed to: 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Room 2014 

Washington, D.C. 20591 

I hereby certify that I have this date sent via facsimile and first class mail a copy of the foregoing 

Answer to Amended Complaint and Affirmative Defenses addressed to: 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

U. S. Department of Transportation 

1200 New Jersey Ave., S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

Tel: 202 366-3212 

Fax: 202 366-7536 

Zachary M. Berman, Esq. 

FAA Eastern Region, AEA-7 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

Tel: 718 553-3258 

Fax:718 533-5699 

Dated this 13th day of May 2011. 

Respec; 

GREGORYS. WINTON, ESQ. 

Th^ Aviation Law Firm 

One Research Court, Suite 450 

Rockville,MD 20850 

Tel: (301) 294-8550 

Fax: (301) 294-2525 

Greg@AviationLawExperts.com 

Counsel for Respondent