i

U.S. DEPARTMENT OF TRANSPORTATION
· OFFICE OF HEARINGS FEDERALAVIATION ADMINISTRATION \ . FEDERAL AVIATION ADMINISTRATION,

. ' '" ' 

## JUL 

## 1

## 72012 

# HEARING DOCKET

. I**~** Complainant, FAADocketN:o: FAA-2011**-1!~5** . ,. ' (**t~-;,:,:-;~1** 

### v. CaseNo. ,2010S0150236 ELITE AIR, Judge J.E. Sullivan Respondent,

### ----------------------------~/ RESPONDENT'S REPLYIN SUPPORT OFRESPONDENT'S MOTIO&;;FOR SUMMARYJUDGMENT In its Response To Respondent's Motion For Summary Judgment, the FAA argues that ,·, blanks appearing on a copy of a company form establishes 

### a violati<:n ofFAR §135.21(a) and that one di.ssimilar warning letter from the FAA eighteen**month~** pri<;>r to the**fl~ghts** in issue in ' >i ' this case constitutes a "trend ofnoncompliance". '.. ,· '· ' . TheFAAis incorrect inboth ofits assertions. A. THE COPIES OF FLIGHT·MANIFESTS RELIED UPON.BY THE FAA ARE NOT AUTHENTICATED, WERE NOT ACCQUIRED FROM THE RESPONDENT AND SHOULD NOT BE ADMISSABLE UNDER THE RULES OF EVIDENCE. The FAA asserts that "Meenan requested and obtained from Elite Air representatives copies ofForm EAI-301 for N444CW flights between June 15, 2010, and August 12, 2010". (Complainant's Response page 2). That assertion is critical to the FAA's motion for summaryjudgment and is not supported by any materials in the record, depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, interrogatory answers, orothermaterials as required byFed.R.Civ.P. 56. The FAAsimplyhas not established wherethe copies ofthe forms came from, howmanyIN THE MATTER OF ELITE AIR, INC., DocketNo.: FAA-2011-1125, FAA Case No. 201080150236 times they had been copied before they got the copies, or whether the copies were accurate copies of the original manifests. Certainly, Respondent has not admitted the authenticity ofthe documents. Without authenticating the documents, which are the sole basis for the alleged violations, the FAAcannotprevail. Atthe veryleast, the authenticity of the documents and whether the copies are accurate copies of the final forms is a question offact. B. EVEN IF THE FLIGHT MANIFESTS ARE ACCEPTED BY THE COURT, THE FAA HAS NOT ESTABLISHED THAT THE BLANKS WERE REQUIRED TO BE FILLED OUT OR THAT THE FLIGHTS WERE CONDUCTED UNDERPART 135. Even ifthe Court accepts the unauthenticated copies ofthe flight manifests, the record does not establish that there are blanks that were applicable to that flight. On each copy, the form contains a completed item for the next action due. For example, on the flight on June 15, 2010 (Exhibit 6 to Complainant's Response to Respondent's Motion for SummaryJudgment, the blank for "nextdate limited" inspection is completed.) The FAA has not shown that other inspection dates being left blank constitutes a violation of §135.21(a). Respondent's General Operations Manual states that as part ofthe preflight duties, the PIC will "note the date and the aircraft time and compare them with the inspection due dates and times listed in the Elite Air, Inc. Status Sheet (EAI-106) which is maintained in the Aircraft Flight Log Book. These inspection due dates and times shall be entered by the PIC in the appropriate blocks on the Aircraft Flight Manifest". (FAA Exhibit 1 to the FAA Response to Respondent's Motion for Summary Judgment). Without producing a copy ofthe aircraft status sheets which the PIC was to use to enter the inspection due dates, how can the Court determine that the PIC did not enter all the inspection dates noted inthe status sheet? Page 2 of5

### ..
IN THE MATTEROF ELITEAIR, 

### INC., DocketNo.: FAA-2011-1125, FAA CaseNo. 201080150236 The FAArelies on the unauthenticated flight manifests to "prove" that the flights in issue were conducted under Part 135. That reliance is misplaced. A Part 135 flight is a flight that is conducted for revenue. Whether or not a flight is designated as a Part 135 flight simply does not make it so. The FAA has not established that the flights in issue
were actuallyPart 135 fights. 

## c. THE FAA'S DECISION TO VIOLATE THE RESPONDENT FOR WHAT WAS CLEARLY AT MOST A "LOW RISK" VIOLATION WAS IN

### VIOLATION OF FAA ORDER 8900.1 The FAA seems to admit that at most the Respondent committed a low risk violation of§135.21(a) as a result ofthe crew ofN444CW leaving a field incomplete on
an otherwise satisfactorily completed record or form. But the FAA argues that the decision to ignore the FAA order to use administrative action or informal action, and resolve the matter with an oral or written warning, wasjustified based on one warning issued in 2008 that was dissimilar to the issue in this case. In 

### 2008, a records review found that a flight crew had entered an inspection date, but that they had inadvertently entered the wrong date. Effectively, in 2008, the Respondent received a warning because
a crewhad made a scrivener's error. The point is two-fold. First, the 2008 warning was not similar to the issues inthis
case. In fact, in 2008, the crew HAD completed the blanks in the form. Secondly, it is respectfully submitted, that a single errorbya different crew almost two years priorto the issues in this case arising hardly constitutes "a trend ofnoncompliance" as required by the FAA Order. Further, the alleged violation did not result "from the same repeated misconduct" as required bythe Order. Finally, the alleged violation in this case was not 

### by the "sameindividual (the 2008 warning was due to an errorby a different crew), orby the same department, section or group of a small entity's organization" as discussed in Page 3 

### of5INTHEMATTEROF ELITEAIR, INC.,

### DocketNo.: FAA-2011-1125, FAA

### Case No. 201080150236 

### the Order. In short, administrative action or informal action was appropriate in this case and theFAA abused its discretion inignoringthe directive found inFAA Order 8900.1. The FAA's argument that the Subsection ofFAA Order 8900.1 dealing with lowrisk violations does not apply because the section deals only with low-risk violations "corrected on the spot" is also misplaced. The FAA inspector that concluded that the
crew ofN444CWhad not properly completed the flight manifest forms could easilyhave corrected the issues "onthe spot".

CONCLUSION


### Viewed in light most favorable to the FAA, there is no fact in issue which would sustain the FAA's case. The FAA has not produced any evidence to sustain a violation because the alleged violations are based solely on unauthenticated documents where the originals were no longer available by the time the FAA inspector conducted its inspection. Even if the unauthenticated records were acceptable in evidence, the alleged violations were "low-risk" as defined by FAA Order 8900.1 and the FAA has produced no evidence of a "trend of noncompliance". On the other hand, the FAA's case is reliant on a number of facts that are in issue, including the authentication of the flight manifests, the information that should have been included on the manifests (to be taken from the Aircraft Status sheet), and whether the Respondent's conduct indicated a "trend ofnoncompliance" which is clearly a question offact. Based on the foregoing, the Plaintiffrespectfully requests that the Court enter an order granting summaryjudgmentin favor ofthe Respondent.

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### -· INTHEMATTEROFELITEAIR.INC
.. DocketNo.: FAA-2011-1125, FAACaseNo. 201080150236 Dated

## this//~ay ofJuly, 2012.

B. GRAY BS ESQUIRE B. GrayGi s,P.A. 100 Second Avenue South, Suite 1202 St. Petersburg,FL33701 (727) 892-9901; (727) 892-9902 (fax) Fla. BarNo. 232955 gibbs@gibbslawgroup.com 

### CERTIFICATE OFSERVICE I hereby certify that I have this date provided a copy of Respondent's Reply in Support of Respondent's Motion for Summary Judgment to the below named addressee, via United States PriorityMail, postageprepaid, addressed to: Mr. Ryan M. Landers Office oftheRegional Counsel, AEA-7 SouthernRegion Federal AviationAdministration Post Office Box 20636 Atlanta, GA30320 I hereby certify that I have this date provided a copy, via United States Priority Mail, postage prepaid, a copy, addressed to:TheHonorableJ.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJerseyAvenue, S.E. Washington, D.C.20590 I hereby certify that I have this date caused to be furnished via United States Priority Mail, postageprepaid, the original and a copyaddressed to: HearingDocket Clerk FAAAGC-430, Suite 2W1000 WilburWright Building 800 Independence Avenue, SW Washington, D.C. 20591

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