465 California Street 

Suite 210 

• 

San Francisco 

California 94104 

• 

(415) 421-2500 

F'"' (415) 421-2560 

www.avialex.com 

law@avialex.com 

Michael L. Dworkin and Associates 

Law Offices RECEIVED 

FED EX: 

Federal Aviation Administration 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building -Suite 2W1000 

800 Independence Avenue SW 

Washington, DC 20591 

RE: Martinaire Aviation, LLC 

FAA Case No. 2011SW700189 

DMS No. FAA-2013-0040 

Dear Hearing Docket Clerk: 

OCT 1 8 2013 

HEARING DOCKET 

October 17,2013 

Enclosed herewith for filing is the following document: 

Martinaire Aviation, LLC's Reply in Opposition to 

Complainant's Agency's Motion for Continuance of Trial (original plus one 

copy). 

cc: The Honorable Richard C. Goodwin 

Administrative Law Judge 

james Archier, Esq. 

FAA,ASW-7 

Very truly yours, 

Caitlin M. Miller 

Legal Assistant 
Michael L. Dworkin (CA Bar# 64047) 

MICHAEL L. DWORKIN and ASSOCIATES 

465 California Street, Suite 210 

San Francisco, CA 94104 

Telephone: 415-421-2500 

FAX: 415-421-2560 

Email: law@avialex.com 

Counsel for MARTINAIRE AVIATION, LLC 

RECEIVED 

OCT 1 8 2013 

HEARING DOCKET 

UNITED STATES OF AMERICA 

DEPART ME NT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

MARTINAIRE AVIATION, LLC 

FAA Case No. 2011SW700189 

DMS No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S 

REPLY IN OPPOSITION TO 

COMPLAINANT'S AGENCY'S 

MOTION FOR CONTINUANCE OF 

TRIAL 

Judge: The Honorable Richard C. Goodwin 

TO THE DEPARTMENT OF TRANSPORTATION, THE HONORABLE RICHARD C. 

GOODWIN, ADMINISTRATIVE LAW JUDGE, AND TO THE ADMINISTRATOR, 

FEDERAL AVIATION ADMINISTRATION AND HIS ATTORNEYS OF RECORD: 

In accordance with 14 C.F.R. Section 13.200, et seq. and the Federal Rules of 

Civil Procedure, Martinaire (Respondent) files this reply in opposition to Complainant's 

Agency's Motion for Continuance of Trial, served via FAX on Thursday morning, 

October 17,2013, and as grounds therefor states: 
FACTS 

Complainant issued a Notice of Proposed Civil Penalty (NOPCP) on May 20, 

2012. A Final NOPCP was issued on January 7, 2013 from which Respondent appealed 

and the Final NO PCP was filed as the complaint in DMS No. FAA-2013-0040 on 

January 15, 2013 seeking a civil penalty of$206,550.00 for 12 alleged Notice to Pilot In 

Command (NO PIC) violations Complainant discovered during an inspection of several 

hundred NOPIC's Respondent provided covering a 90 day period. 

Respondent timely Answered the Complaint, raising a number of affirmative 

defenses. 

On March 25 and March 27, 2013, Respondent noticed the depositions of 

Complainant's persons most knowledgeable. In response, Complainant filed a Motion 

for Protective Order, which the Administrative Law Judge granted on May I, 2013. 

Subject to the limitations set forth in said Protective Order, Depositions of Complainant's 

most knowledgeable persons, Bryan Buchanan, Manager, Hazardous Materials Section, 

and Paul Klimas, Hazardous Materials Specialist (and the investigating inspector in this 

matter) were taken at Arlington, Texas on May I 7, 2013 1 2 

This civil penalty is unprecedentecl. Complainant's witnesses testified at 

deposition that to their best recollection and knowledge, Complainant has never sought 

1 Transcripts of those depositions were previously been filed on or about June 26, 

2013 as Exhibits F and G to Respondent's Response and Objections to Complainant's 

Motion for Decision and Transmittal of Exhibits. 

2 Complainant also took the depositions of Respondent's most knowledgeable 

persons, Executive Vice President and Director of Operations Alan Rusinowitz, Chief 

Pilot Michael Bates and Assistant Chief Pilot Cory Smith on May 15 and 16 at Fort 

Worth, Texas. 

2 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINATRE AVIATION, LLC'S REPLY IN OPPOSITION TO COMPLAINANT'S AGENCY'S 

MOTION FOR CONTINUANCE OF TRIAL 
civil penalties of this size for alleged NOPIC violations and, in fact, this civil penalty is 

several times the size of the maximum civil penalty that Complainant has ever sought for 

a NO PIC violation against any air can·ier, large or smalL 

Subsequent to those depositions, on June 17, 2013 Complainant served its 

Responses to Respondent's First Set oflnterrogatories in which it stated: 

I. It intended to call only two (2) witnesses, Bryan Buchanan, Manager, 

Hazardous Materials Section, and Paul Klimas, Hazardous Materials 

Specialist (Responses to Interrogatory Nos. 2.1 and 2.7); 

2. Complainant did not intend to call any expert witnesses (Response to 

Interrogatory Nos. 2.4 and 2.5); and 

3. No documents have been prepared or reviewed by any expert witnesses 

(Response to Interrogatory No. 2.5). 

At no time subsequent to serving these Responses, has Complainant amended 

them. 

Also on June 17, 2013, Complainant filed its Motion for Decision seeking to have 

all findings of violation affirmed and the $206,550.00 penalty assessed. Respondent, in 

its reply of June 26, 2013 objected to Complainant's Motion, citing its affirmative 

defenses and arguments as to the appropriateness of the civil penalty, which 

Complainant's Motion had not addressed. 

On July 8, 2013, the Honorable Richard C. Goodwin issued an Order granting in 

part and denying in part Complainant's Motion for Decision. Judge Goodwin found 

Respondent in violation of the cited provisions of 49 CFR Section 175 but determined 

3 

FAA Case No. 2011 SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S REPLY IN OPPOSITION TO COMPLAINANT'S AGENCY'S 

MOTION FOR CONTINUANCE OF TRIAL 
that the issue of the appropriateness of the civil penalty is genuinely controverted as 

Respondent had raised several valid defenses to Complainant's arguments in favor of its 

proposed penalty amount. 

Since the granting of the Order, Complainant has not disclosed any additional 

witnesses and has not designated any experts. Had Complainant done so, Respondent 

would have taken their depositions long in advance of the hearing. 

With the issuance of the Order, the allegations of fact and violation in the 

Complaint are now uncontroverted and established. The sole issues remaining to be 

adjudicated are Respondent's affirmative defenses and sanction. There is no need for any 

testimony of Complainant's witnesses or any other evidence to prove the facts and 

violations that have been alleged in the Complaint. 

To the extent that the Protective Order, and Complainant's attorney during 

depositions of Complainant's witnesses, has precluded Respondent from discovery of 

Complainant's methodology in computing the sanction, any evidence propounded by 

Complainant or its witnesses relating to how Complainant computed the civil penalty 

should not come in at this late date. Any such evidence adduced by Complainant would 

come as an unfair surprise and would prejudice Respondent. 

In essence, as the allegations of fact and violation have been established, there is 

nothing to which Complainant's two designated witnesses could testify. There is no need 

for Complainant's witnesses to testify; there is no need for Complainant's counsel to 

prepare witnesses or exhibits for the hearing. From Complainant's standpoint, this is a 

very simple case that should require minimal, if any, preparation. 

4 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S REPLY IN OPPOSITION TO COMPLAINANT'S AGENCY'S 

MOTION FOR CONTINUANCE OF TRIAL 
Also worthy of note is the fact that Complainant's counsel's supervisor, its 

Regional Counsel, telephoned Respondent's counsel shortly after the government 

shutdown commenced and advised that a continuance was going to be sought. 

Respondent's counsel advised the Regional Counsel that assuming the government 

returned to work on or before October 25, there would be no need for a continuance, 

given the fact that the alleged facts and violations have been deemed established and that 

the only issue remaining was the appropriateness of sanction, and that Respondent would 

object to such a motion or request. Respondent's counsel further advised the Regional 

Counsel that nonrefundable airline tickets had already been purchased for the trip to and 

from Dallas to try this case. 

CONCLUSION 

For the foregoing reasons, Respondent asks that the Administrative Law Judge 

deny Complainant's Motion for Continuance. 

Dated this 17th day of October, 2013 

sprrfu~y/ submitted, 

J..L tJ,.___ Pol... 

Michael L. Dworkin 

Attorney for Respondent, 

MARTINAIRE AVIATION, LLC 

5 

FAA Case No. 2011 SW700189/FAA Docket No. FAA-2013-0040 

MARTINAJRE AVIATION, LLC'S REPLY IN OPPOSITION TO COMPLAINANT'S AGENCY'S 

MOTION FOR CONTINUANCE OF TRIAL 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this 17 day of October, 2013, a true and correct 

copy of the foregoing 

MARTINAIRE AVIATION, LLC'S REPLY IN OPPOSITION TO 

COMPLAINANT'S AGENCY'S MOTION FOR CONTINUANCE OF TRIAL 

was served as follows: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-

320 

Washington, D.C. 20590 

FAX: 1-202-366-7536 

{FAX and Federal Express) 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

{Federal Express} 

James Archier, Esq. 

Federal Aviation Administration 

Office ofthe Regional Counsel, AS We 7 

2601 Meacham Boulevard, Suite 6E 

Fort Worth, TX 76137 

FAX: 1-817-222-5092/5945 

{FAX and Federal Express) 

CAITLIN M. MILLER 

6 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTTNAIRE AVIATION, LLC'S REPLY IN OPPOSITION TO COMPLAINANT'S AGENCY'S 

MOTION FOR CONTINUANCE OF TRIAL