i 

U.S. DEPARTMENT OF TRANSPORTATION 

· OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION \ . 

FEDERAL AVIATION ADMINISTRATION, . ' '" ' 

JUL 1 7 2012 

HEARING DOCKET . I ~ 

Complainant, FAA Docket N:o: F AA-2011 -1!~5 . ,. ' ( t~-;,:,:-;~1 

v. Case No. ,2010S0150236 

ELITE AIR, Judge J.E. Sullivan 

Respondent, 

----------------------------~/ 

RESPONDENT'S REPLY IN SUPPORT OF RESPONDENT'S MOTIO&;;FOR 

SUMMARY JUDGMENT 

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 of FAR §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 of noncompliance". '.. ,· '· ' . 

The FAA is incorrect in both of its 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 of Form 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 summary judgment and is not supported by any materials in the record, depositions, 

documents, electronically stored information, affidavits or declarations, stipulations, 

admissions, interrogatory answers, or other materials as required by Fed.R.Civ.P. 56. The 

FAA simply has not established where the copies of the forms came from, how many 
IN THE MATTER OF ELITE AIR, INC., Docket No.: 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 of the documents. Without authenticating the documents, which are the sole 

basis for the alleged violations, the FAA cannot prevail. At the very least, the authenticity 

of the documents and whether the copies are accurate copies of the final forms is a 

question of fact. 

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 if the Court accepts the unauthenticated copies of the 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 

Summary Judgment, the blank for "next date 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 of the 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 of the 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 in the status sheet? 

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IN THE MATTER OF ELITE AIR, INC., Docket No.: FAA-2011-1125, FAA Case No. 

201080150236 

The FAA relies 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 actually Part 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 of the 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, was justified 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 crew had made a scrivener's error. 

The point is two-fold. First, the 2008 warning was not similar to the issues in this 

case. In fact, in 2008, the crew HAD completed the blanks in the form. Secondly, it is 

respectfully submitted, that a single error by a different crew almost two years prior to the 

issues in this case arising hardly constitutes "a trend of noncompliance" as required by 

the FAA Order. Further, the alleged violation did not result "from the same repeated 

misconduct" as required by the Order. Finally, the alleged violation in this case was not 

by the "same individual (the 2008 warning was due to an error by a different crew), or by 

the same department, section or group of a small entity's organization" as discussed in 

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IN THE MATTER OF ELITE AIR, INC., Docket No.: FAA-2011-1125, FAA Case No. 

201080150236 

the Order. In short, administrative action or informal action was appropriate in this case 

and the FAA abused its discretion in ignoring the directive found in FAA Order 8900.1. 

The FAA's argument that the Subsection of FAA 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 ofN444CW had not properly completed the flight manifest forms could easily have 

corrected the issues "on the 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 of noncompliance" which is clearly a question of fact. 

Based on the foregoing, the Plaintiff respectfully requests that the Court enter an order granting 

summary judgment in favor of the Respondent. 

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-· IN THE MATTER OF ELITE AIR. INC .. Docket No.: FAA-2011-1125, FAA Case No. 

201080150236 

Dated this//~ay of July, 2012. 

B. GRAY BS ESQUIRE 

B. GrayGi s,P.A. 

100 Second Avenue South, Suite 1202 

St. Petersburg, FL 33701 

(727) 892-9901; (727) 892-9902 (fax) 

Fla. Bar No. 232955 

gibbs@gibbslawgroup.com 

CERTIFICATE OF SERVICE 

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 

Priority Mail, postage prepaid, addressed to: 

Mr. Ryan M. Landers 

Office of the Regional Counsel, AEA-7 

Southern Region 

Federal Aviation Administration 

Post Office Box 20636 

Atlanta, GA 30320 

I hereby certify that I have this date provided a copy, via United States Priority Mail, postage 

prepaid, a copy, addressed to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, D.C.20590 

I hereby certify that I have this date caused to be furnished via United States Priority Mail, 

postage prepaid, the original and a copy addressed to: 

Hearing Docket Clerk 

FAA AGC-430, Suite 2W1 000 

Wilbur Wright Building 

800 Independence A venue, SW 

Washington, D.C. 20591 

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