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UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of; SUN QUEST EXECUTIVE AIR CHARTER, INC. 

FAA Order No. 2011-1 

Docket No. CP08WP0004 

FDMS No. FAA-2008-0238 

Served: January 5, 2011 

RESPONDENT'S REPLY BRIEF 

This brief is in response to the Administrator's Order dated January 

5, 2011, enabling a brief in reply to the Complainant's opening brief on the issue 

of*... other commercial flying..." By this reply brief, Respondent deals solely 

with the issues raised in complainant's brief 

Throughout its arguments Complainant appears to be using the terms 

"other commercial flying" and "public aircraft" in its brief interchangeably. By 

doing so, it hag done a masterful job in mixing apples and oranges. 

SUMMARY OF THIS BRIEF 

Complainant's arguments fail for the following reasons; 

1. Much of the authority that forms the basis for Complainant's 

brief was created long after the complaint in the instant case and, of 

course, long after the alleged acts, errors or omissions on the pzurt of 

Respondent took place. Some, but not all, of tliese are as follows: 

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(a.) The legislative history up to and until the dates of 

the alleged violation by Respondent clearly support 

Respondent's position and the decision of the Administrative 

Law Judge, The 1991 statutory definition of public aircraft and 

the 2001 change did not alter the key definition of the F-A.A.'s 

role in the Aviation Act, namely that tlie authority of the F.A.A. 

regarding airplanes extends only lo flying machines ".. . other 

than public aircraft..." 

49USC 40102. 

The statutory change was only for further 

amplification and clarification as to military aircraft regarding 

the rules applicable as lo the Armed Services or for otherwise 

use of aircraft by the Department of Defense for national 

interest. 

(b) The Agency's attempt to bootstrap its argument by a 

Notice of Proposed Rule Making dated September 14,2010, 

cannot be used as a predicate for acts, errors or omissions of 

this respondent which allegedly took place many years before 

diat date, Respondent's argument boils down to an 

administrative attempt to create an ex post facto law. 
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(c) The same thing is true regarding statutory 

amendments effective January 28, 2008. The complaint against 

this respondent deals with allegedly improper tracking of fights 

during the year 2005, three years before the stamte Tvas 

amended.' 

2. TTie complainant now argues that ".. . there is no evidence 

that Mr. Smith's flights for the Los Angeles Police Department were 

public aircraft operations..." The cynicism of that argument helps 

manifest just how specious the complainant's position really is. 

First of all, the entire case, from the First Notice of Proposed 

Violation through the stipulations of facts, and until the submission of 

complainant's brief were all based, without question, that the flights for 

the L.A.P.D. were public aircraft operations. It must be recalled that this 

case was submitted to the Administrative Law Judge on the basis of 

stipulated facts. If the facts were other than stipulated (and of course they 

were not) that issue should have been raised at least by the time of the 

stipulation, made about June 9,2009. The stipulation included the 

following: 

' Moreover, the redefinition of public aircraft does not change the situation in this case. As applicable to 

lh)3 case, the redefinition merely requires that the aircraft be used by the public agency for at least 90 

continuous days for tiie public aircraft exception to be applicable. 
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". .. 25. Legal determination will have to be made as to 

whether the helicopter in question was a "public aircraft" 

within the meaning of 49USC 40102 (4])(C). .." 

The case was tied pursuant to and in accordance with the 

stipulated facts. No evidence was produced and there was no suggestion 

that the L.A.P-D- flights were anything other than flights in public 

aircraft. 

Interestingly, by a parity of reasoning (or lack of reasoning) the 

record fails to disclose any possible basis for the flights by Mr. Smith for 

the L.A.P.D. to have been commercial flights. Thct-e is no evidence that 

he received any compensation or benefits at all. After all, there is such a 

thing as volunteer public service. Volunteer fire departments are 

common. Likewise volunteer helicopter flights for humanitarian purposes 

exist For example, had Mr. Smith used his off duty time from Sun Quest 

for the purpose of aiding victims of earthquakes, hurricanes or the like, 

would that, of necessity, have been commercial flying within the meaning 

of the tracking requirements applicable to Sun Quesf? For all that 

appears, such flights could be made for the Red Cross or, nowadays, for 

Japanese Relief 
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CONCLUSION 

Contrary to the government's artful wording in its brief, the 

Administrative Law Judge did not "create" a new interpretation of an existing rule. 

Instead, it is the F.A.A., by administrative fiat, attempting to change the statute. 

This case was decided favorably to respondent because of the statutory exclusion 

of the F.A.A.'s jurisdiction over all aircraft involved in public flying not just 

military flying. Later amplifications of the statute to quasi military flying does not 

change the statute or to this case. The statute means what it says and there is no 

case that has held otherwise. 

Dated: April 5, 2011 Respectfully submitted, 

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ARTHUR WASSERMAN 

Attorney for Respondent 
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Certificate of Service 

I hereby certify that on this date I both faxed and mailed by Certified Mail the 

original of the attached document (FJESPONDENT'S REPLY BRIEF) in the 

Matter of Sun Quest Executive Air Charter, Inc., Docket No CP08'WP0004 and 2 

copies, addressed to: 

Federal Aviation Administration 

600 In dependence Avenue, SW 

Washington, DC 20591 

Attn: HearingDocket Clerk, AGC-430 

Wilbur Wright Building, Suite 2WI000 

Facsimile: (202)493-5142 

And, I hereby certify that a copy of that document was sent by facsimile and 

certified United States Mail, postage-prepaid, to: 

Peter J. Lynch 

Assistant Chief Counsel for Enforcenient, AGC-300 

C/O Joseph A. Come 

Counsel for complainant 

Enforcement Division, AGC-300 

800 Independence Avenue, SW 

Washington, DC 20591 

Facsimile: (202)267-5106 

Dated: April 5,2011