02/07/2011 15:47 FAX 2024935142 FAA •> DMS 12001/009 

^•:PARTMENT OF 

i":,':]SP0RW10N 

IJNTTED STATES OF AMERICA / •: f OprR,^TiONS 

DEPARIMENT OF TRAKSPORTATION 

FEDERAL AVfATION ADMINISTRATION ; -rn . -j p > 14(3 

WASHINGTON,B.C. - -'•' .. ."..:: V 

In the Matter of 

DIAMOND AIR CHARIER, INC. 

FAA Docket No. 201 OEAl 10008 

(Civil Penalty Proceeding) 

The Honorable Ronnie A. Yoder 

Chief Administrative Law 

Hearing Location: New York, NY 

Hearing dates: TBD 

t^\b^hwt>i ^oMa o 

RESPONDENT'S ANSWER TO AGENCY'S MOTION 

TO LIMIT HEARING TO ISSUE OF SANCTION 

COMES NOW, Diamond Air Charter, Inc. (hereinafter ^'Diamond Air"), 

Respondent herein, by and through undersigned counsel, pursiiant 10 Rule 13.218(d) of 

the Procedural Rules (14 C.F.R. Pan 13), and hereby an.swers the Agency's Motion to 

Limit Hearing to Issue of Sanctions. As more fully discussed herein, genuine issues of 

material fact remain in dispute and therefore, the Agency's motion should be denied. 

The only issue to be determined by the law judge is whether there is a violation of 

14 C.F.R. §1119.5(k), which states that "no person may advertise or otherwise ofler 10 

perform an operation subject to this part unless that person is audiorizcd by the Federal 

Aviation Administration (FAA) to conduct that operation." (See 14 C.F.R. § 119,5(k), 

emphasis added). However, genuine issues of material fact remain in dispute concerning 

the "operation" that Diamond Air was authorized to conduct by the FAA, as well as the 

"operation" that Diamond Air allegedly advertised or otherwise offered to perform. 
I 02/07/2011 15;47 FAX 2024935142 FAA * OMS 12002/009 

As .such, summary disposition is not appropriate and the Agency's motion must 

be denied. In support thereof. Respondent states the following; 

PROCEDURAL HISTORY 

On July 28. 2010. the Complainant, FAA, filed a Second Amended Complaint in 

this matter, iilleging a single violation of 14 C.F.R §119.5(k).' Specifically, the Agency 

alleged that Diamond Air advertised or otherwise offered to perfomi an operation, subject 

to Pai't 119 of the Federal Aviation Regulations (FARs), when it was not authorized by 

the FAA to conduct that operation. On August 3, 2010, Respondent filed an Answer to 

the Second Amended Complaint. 

Respondeat denied paragraphs 2-5 for lack of knowledge or information sufficient 

to form a belief as to the truth or falsity of the iUlegations: denied paragraphs 6-8 of the 

Complaint, and raised twelve (12) affirmative defenses, one of which was reasonable 

reliance. 

ISSTJE PRESENTED 

Whether a Genuine Issue of Material Fact Exists Concerning Whether 

Diamond Air Charter Advertised or Otherwise Offered to Fcrform »n 

Operation Subject to Part 11*> When it Was Not Authorised by The FAA to 

Conduct Such Operation? 

Contrary to the FAA's present argument, genuine issues of material fact exists as 

to whether Diamond Air advertised or otherwise offered to perform an operation for 

which it was noi authorized by the 1"AA. Specifically, at all times relevant herein, 

' 14 C.F.R. §119.5(k) states the following: 

No person may adverti.se or otherwise offer to perform an t)peration subject to tliis 

part unless that person is authorized by the 1-ederal Aviation Administration to 

conduet that operation. 
•A 02/07/201 1 15:4 7 FAX 2024935142 FAA + DMS 0003/009 

Diiimond Air was authorized by the l/\A to conduct flight operations subject to 14 

C.F.R. Part 119, for compensation or hire in accordance wiih 14 C.F.R. Part 135. 

Furlhemiore, according to Anthony Debany. advertising agent tor the company, at 

no time did Diamond Air advenise or otherwise offer to perform an operation subject to 

14 C.F.R. Part 119, when it was not authorized by the FAA to conduct tliat operation. 

(See Exhibit 1 attached hereto and incorporated by reference). 

In fact, at all times relevant heroin. Diamond Air was ihe holder of Air Carrier 

Certitlcale No. D9CA27611. (Amended Complaint at paragraph 1). ITne Air Carrier 

Ccnificaie issued by the FAA, authorized Diamond Air to advertise or oihei-wise offer to 

perform operations subject to Part 119 of the Federal Aviation Regulations (i.e., air 

charier flights pursuant to Pail 135). 

Thus, a genuine is.sue of material fact exists as to whether Diamond Air advertised 

or oihei-wise oifcrcd to peiform an operation subject to Part 119 of the J'cdcral Aviation 

Regulaiions when it was not authorized by the FAA to conduct that operation. 

MATERIAL FACTS IN DISPUTE 

1. Who did Diamond Air allegedly advertise or offer to conduct operaiion(s) for 

without authority by the FAA to perform such operation(s)? 

2. What operation(s) was Diamond Air authorized by the FAA to perform? 

3. What opcration(s) was Diamond Air not authorized by ihe FAA to perform? 

4. What operation(s) did Diamond Air allegedly advertised or oiler, for which it 

allegedly did not have authority by the FAA to perform? 

5. Where did Diamond Air allegedly advertise or offer to conduct operations for 

which ii did not have authority by the FAA to perform? 
02/07/2011 15:48 FAX 2024935142 FAA * DMS 121004/009 

6. When did Diamond Air allegedly advertise or offer to conduct operations for 

which it did not have authority by the FAA to perform? 

7. How did Diamond Air allegedly advertise or offer to conduct operations for 

which ii did not have authority by the FAA to perform? 

The Agency's present motion seeking to limit the hearing to sanction is 

completely silent with regard to the above-referenced genuine issues of material fact, 

which clearly remain in dispute in this case. As such, genuine issues of material faci 

remain in dispute as to whether Diamond Air violated 14 C.F.R. §119.5(k). 

Therefore, suinmai7 disposition is not appropriaie under the circuinsiauces and 

the Agency's motion must be denied. 

LEGAL STANDARD 

Pursuaiit to 14 C.F.R. § 13.218(f)(5), a party may make a motion for decision, 

regarding all or any part of the proceedings, at any time before the administrative law 

judge has issued an initial decision in the proceedings. The administrative law judge 

shall grant a party's motion for decision if the pleadings, depositions, answers to 

interrogatories, admissions, matters that the zidministrativc law judge has officially 

noticed, or evidence introduced during the hearing show that there is no genuine issue of 

material fact and that the party making the motion is entitled to a decision as a matter of 

law. 

It is axiomatic ihat a motion for decision in an FAA civil penalty case is to be 

decided under the same rules that apply to a motion for summary judgment under Rule 56 

of the Federal Rules of Civil Procedure. In a ca.se, such as this one. where the burden of 

proof shifts to the nonmoving party, the standard for deciding a motion for summary 
02/07/2011 15:48 FAX 2024935142 FAA + DMS @l005/009 

judgment was set out by the Supreme Court in the case of Celotex Corp. v. Cairett, 477 

0.3-317,322-23(1986): 

In our view, the plain language of Rule 56(c) mandates the entry of 

summary judgment, after adequate time for discovery and upon motion, 

against a party who fails to make a showing sufficient to establish the 

existence of an element essential to that party's case, and on which that 

party will have the burden of proof at trial. In such a situation, there can be 

n(j "genuine issue as to any material fact," since a complete failure of 

proof concerning an essential element of the nonmoving pany'.s; case 

necessarily renders all other facts immaterial. 

See Celolex Corp. v. Calrell, All U.S. 317, 322-23 (1986). 

On a motion for summary decision, all evidence and inferences are to be viewed 

in the light most favorable to the nonmoving party; however, a nonmoving party may not 

rest upon mere denials, allegations in pleadings or lawyers' arguments, but must come 

forward with evidence sufficient to raise one or more genuine issues for trial. See, e.g., 

Ciiizem State Bank of Bi^ Lake v. Tran.'samenca Co., 815 F. Supp. 309 (D. Minn. 1993). 

The FAA's case lacks any basis in law or fact. Specifically, the only reported 

cases involving an allegation of 14 C.F.R. §119.5(k) involve aircraft operators who have 

advertised or otherwise offered to perlbrm air cairicr operations subject to Pari 119, when 

ihey did not hold any such authority from the FAA. See In ihe Mailer of Island .iir 

Relicoplcrs Intcrmitonal. Lid. FAA Docket No. CP08SO0013: DMS No. FAA-2008-

0693 (2010) (Respondent lacked any authority from the FAA to conduct charter 

operations for hire); see also In the Matter of John Iluiion Corporation ct/'h/a Tora Flight 

Adventure Cluh, I'AA Docket No. CPO8WP0013; DMS No. FAA-2008-0780 (2010) 

(Respondent offered brochures and sponsored a web site which constituted advertising 

and offers to perform operations for which Respondent lacked authority from the FAA). 
02/07/2011 15:48 FAX 2024935142 FAA * DMS 21006/009 

However, in the present case. Diamond Air was fully authorized by tlie FAA lo 

conduct the llighL operation(s) in question (i.e., flight operations for compensation or hiie 

pursuant to 14 C.F.R. Pan 135). Thus, there is no legal or factual basis to the Agency's 

claim and therefore, its motion should be denied. 

WHEREFORE, since Diamond Air Chaiter, Inc. has provided an affidavit from 

its advertising Agent, Anthony Debany, which specifically stales that at no time did 

Dianiond Air advcrii.se or otherwise offer to perform an operation subject lo 14 C.F.R. 

Part 119, when it was not authorized by the Federal Aviation Administration to conduct 

that operation, a genuine issue of material fact remains in dispute and the Agency's 

Motion to Limit Hearing to Issue of Sanction must be denied. 

As such. Respondent respectftilly requests a full hearing on the merits, including 

its affirmative defenses. 

Dated: January 13, 2011 

Respectful sji^Aiitted, 

ORH^ORY S. WiNTON, ESQ. 

Tht/AviationTE::aw Firm 

Ope Research Court, Suite 450 

Rockville, MD 20850 

Tel: (301) 294-8550 

Fax:(301)294-2525 

Cn-eg@AviationLawHxpcris.com 

Counsel for Respondent 
02/07/201 1 15:4 8 FAX 2024935142 FAA + DMS @l007/009 

EXHIBIT 1 
PiA - DMS 21008/009 

02/07/2011 15:48 FAX 2024935142 FAA 

X;NirED STATES OF AMERICA 

DEPARTMENTT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASfflNGTORD.C. 

la the Matter of 

DIAMOND AIR CHARTER, INC. 

FAA Docket No. 2O10EA110O08 

(Civil Penalty Pntceeding) 

The Houoiable Ronnie A. Yodar 

Chief Administiative Law 

Hearing Locadon: NewYoi4(, NY 

Hearing dates: TBD 

AFFIDAVIT OF ANTHONY DEBANY 

I vaake die following statements to the best of my knowledge and ander the 

pesahies of peijuiy: 

1. My name is Anthony Dd^any, and at all times lekvant to the above-captioned 

matter. I was the Advenlamg Agent for Dianond Air Charts, Inc. 

2. At all times relevant to ^ above-capuooed matter. Diamond Air Chwter, Inc. 

was authonaed by the Federal Aviation Adnnnistraiion to conduct fli^c opeiations 

subject to 14 C.F.R. Part 119, for campensaiiOD or hiie in accocdance with 14 CJ'.R. Part 

135. 

3. At no time did Dianiond Air Charter advertise or otherwise offer to peifonn an 

operation subjea to 14 C f.R. Pan 119, when it was not authorized by the Federal 

Aviation Administration to condua that opoation. 

4. I am conqjetent to testify as to the matters stated herein. 

Respectfully submitted. 

Anthony Debany 
02/07/2011 15:48 FAX 2024835142 FAA DMS §1009/009 

CERTIFICATE OF SERVICE 

T 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 Agency's Motion to Limit 

Hearting to Issue of Sanction addressed to: 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 

Federal Aviation Administration 

800 liidependence Avenue, S.W. 

Room 924A 

Washington, D.C. 20591 

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

foregoing Answer to Agency's Motion to Limit Hearting to Issue of Sanction addressed 

to: 

Honorable Ronnie A. Voder, 

Chief Administrative Law Judge 

U. S. Department of Transportation 

Office of Hearings, M-20, Room El 2-320 

1200 New .Jersey Ave., S.E. 

Washington, DC 20590 

TEL: 202 366-2142 

FAX: 202 366-7536 

Zachary M. Bennan, Complainant s Counsel 

Attorney, Office of the Regional Counsel, AEA-7 

F AA Eastern Region 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

TEL: 718 553-3258 

FAX: 718 533-5699 

Dated: .January 13,2011 

Respe' mitled. 

S. WINTON, ESQ. 

! Aviation Law Firm 

le Research Court, Suite 450 

Rockvillc, MD 20850 

Tel; (301) 294-8550 

Fax:(301)294-2525 

Greg@AviationLawExperts.com 

Counsel for Respondent