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 

# RECEIVED Law Offices



### FEDEX: FederalAviation Administration Attn: Hearing DocketClerk, AGC-430 WilburWrightBuilding -Suite 2W1000 800 IndependenceAvenue SW Washington, DC 20591
RE: MartinaireAviation, 

### LLC FAA Case No. 2011SW700189 DMS No. FAA-2013-0040



### Dear HearingDocket Clerk: 

## OCT 1 82013 

## HEARING DOCKET
October 17,2013

Enclosedherewithfor filing is the following document: MartinaireAviation, LLC's Replyin Oppositionto Complainant's Agency's Motion for Continuance ofTrial (originalplus one copy).

cc: The Honorable Richard C. 

### Goodwin Administrative Law Judge jamesArchier, Esq. FAA,ASW-7 Verytrulyyours,

Caitlin M. Miller Legal AssistantMichael 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 82013 

## HEARING DOCKET

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
In the Matter of:

MARTINAIRE AVIATION, LLC FAA CaseNo. 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, THEHONORABLE 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, etseq. and the Federal Rules of Civil Procedure, Martinaire (Respondent) files this reply in oppositionto Complainant's Agency's Motion for Continuance ofTrial, served via FAX on Thursday morning, October 17,2013, and as grounds therefor states:FACTS Complainant issued aNotice ofProposed Civil Penalty (NOPCP) on May 20, 2012. A Final NOPCP was issued on January 7, 2013 from which Respondent appealed and the Final NOPCP was filed as the complaint in DMSNo. FAA-2013-0040 on January 15, 2013 seeking a civil penalty of$206,550.00 for 12 allegedNotice to Pilot In Command (NOPIC) violations Complainant discovered during aninspection ofseveral hundredNOPIC's Respondent provided covering a 90 day period. Respondent timely Answered the Complaint, raising a number ofaffirmative 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 LawJudge granted on May I, 2013. Subjectto the limitations set forth in said Protective Order, Depositions ofComplainant's mostknowledgeable persons, BryanBuchanan, Manager, Hazardous Materials Section, and Paul Klimas, Hazardous Materials Specialist (and the investigating inspector inthis matter) were taken atArlington, Texas on May I7, 2013 1 2 This civil penalty is unprecedentecl. Complainant's witnesses testified at depositionthat to their bestrecollection and knowledge, Complainanthas never sought

1Transcripts ofthose depositions were previously been filed on or about June 26, 2013 as Exhibits F and Gto Respondent's Response and Objections to Complainant's Motion for Decision and Transmittal ofExhibits.
2 Complainant also took the depositions ofRespondent's most knowledgeable persons, Executive Vice President and Director ofOperations Alan Rusinowitz, Chief PilotMichael Bates and Assistant ChiefPilot Cory Smith on May 15 and 16 at Fort Worth, Texas. 2 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINATRE AVIATION, LLC'S REPLY IN OPPOSITION TO COMPLAINANT'S AGENCY'S MOTION FOR CONTINUANCE OF TRIALcivil penalties ofthis size for alleged NOPIC violations and, infact, this civil penalty is several times the size ofthe maximum civil penalty that Complainanthas ever sought for
a NOPIC violation against any air can·ier, large or smalL Subsequentto those depositions, on June 17, 2013 Complainant served its Responses to Respondent's First Set oflnterrogatories in which it stated: I. Itintended to call only two (2) witnesses, BryanBuchanan, Manager, Hazardous Materials Section, and Paul Klimas, Hazardous Materials Specialist (Responses to Interrogatory Nos. 2.1 and 2.7); 2. Complainant did not intendto call any expertwitnesses (Response to Interrogatory Nos. 2.4 and 2.5); and 3. No documents have beenprepared 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 seekingto have all findings ofviolation affirmed and the $206,550.00 penalty assessed. Respondent, in its reply ofJune 26, 2013 objected to Complainant's Motion, citing its affirmative defenses and arguments as to the appropriateness ofthe civil penalty, which Complainant's Motion had not addressed. OnJuly 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 ofthe cited provisions of49 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 TRIALthatthe issue ofthe appropriateness ofthe civilpenalty is genuinely controverted as Respondent had raised several valid defenses to Complainant's arguments in favor ofits proposedpenalty amount. Since the granting ofthe Order, Complainant has not disclosed any additional witnesses and has not designated any experts. Had Complainant done so, Respondent would have takentheir depositions long in advance ofthe hearing. With the issuance ofthe Order, the allegations offact and violation inthe 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 ofComplainant'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 ofComplainant'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 offact 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, ifany, preparation.
4 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S REPLY IN OPPOSITION TO COMPLAINANT'S AGENCY'S MOTION FOR CONTINUANCE OFTRIALAlso worthy ofnote is the fact that Complainant's counsel's supervisor, its Regional Counsel, telephoned Respondent's counsel shortly after the government shutdown commenced and advisedthat a continuance was going to be sought. Respondent's counsel advised the Regional Counsel that assuming the government returnedto 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 ofsanction, and that Respondentwould objectto 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 Dallasto try this case. CONCLUSION Forthe foregoing reasons, Respondent asks that the Administrative LawJudge deny Complainant's Motion for Continuance.

Datedthis 17thday ofOctober, 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 FORCONTINUANCE OFTRIAL

### CERTIFICATE OF SERVICE The undersigned hereby certifies that on this 17 day ofOctober, 2013, a true and correct copy ofthe foregoing 

### MARTINAIRE AVIATION, LLC'S REPLY IN OPPOSITION TO COMPLAINANT'S AGENCY'S MOTION FOR CONTINUANCE OFTRIAL
was served as follows: The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 New Jersey Avenue, S.E. East Building Ground Floor, Room El2- 320 Washington, D.C. 20590 FAX: 1-202-366-7536 {FAXandFederal Express) Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 {Federal Express} James Archier, Esq. Federal Aviation Administration Office ofthe Regional Counsel, ASWe7 2601 Meacham Boulevard, Suite 6E FortWorth, TX 76137 FAX: 1-817-222-5092/5945 {FAXandFederal Express)

CAITLIN M. MILLER

6 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTTNAIRE AVIATION, LLC'S REPLY IN OPPOSITION TO COMPLAINANT'S AGENCY'S MOTION FOR CONTINUANCE OF TRIAL