In the matter of: 

·-

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U.S. DEPARTMENT OF TRANSPORTATIO~ l 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

l I 

AUG 2 9 2016 

INI d 

ENDLESS MOUNTAINS 

AIR, INC., 

Docket No. FAA-2013-0848 

Respondent. 

COMPLAINANT'S REPLY BRIEF 

Pursuant to section 13.233(e) of the Rules of Practice, 14 C.F.R. § 13.233(e), and the Office 

of Adjudication's letter1 dated July 27,2016, Complainant files this brief in reply to Respondent 

Endless Mountains Air, Inc.'s (EMA) appeal of the Initial Decision issued by Administrative Law 

Judge J. E. Sullivan (ALJ) on May 20,2016, in the above-captioned matter. 

STATEMENT OF THE CASE AND FACTS 

The statement of the case and the statement of facts in Complainant's appeal brief, filed on 

July 14,2016, are incorporated by reference. 

STATEMENT OF THE ISSUE 

Whether the ALJ appropriately found that EMA failed to prove its affirmative defense of 

inability to pay the civil penalty. 

STANDARD OF REVIEW 

Under the Rules of Practice, the Administrator considers on appeal whether the ALJ's 

conclusions of law are in accordance with applicable law, precedent, and public policy. 14 C.F.R. 

§ 13.233(b)(2). Complainant bears the burden of proving the appropriateness ofthe civil penalty, but 

Respondent bears the burden of proof of an affirmative defense, such as inability to pay the proposed 

1 In that letter, the Office of Adjudication construed Respondent's notice of appeal as its appeal 

brief and directed Complainant to file a reply brief no later than August 31, 2016. 

L 'D 
civil penalty. See 14 C.F.R. § 13.224(a) and (c); Rushmore Helicopters, Inc., FAA Order No. 2012-8 

at 14 (October 11, 2012). 

ARGUMENT 

The ALJ properly found that EMA failed to prove that it was financially unable to pay 

a civil penalty. 

EMA appears to argue that the ALJ erred by rejecting its affirmative defense of inability to 

pay the civil penalty. R. Brief. EMA notes that it was unable to present its tax returns as evidence at 

the hearing because of a "large overdue balance with [its] accountants." EMA suggests that "with 

review of recent federal tax returns, the Administrator will find that [it] is clearly unable to pay such 

a large civil penalty." EMA states, however, that it is "only now beginning to work toward 

completion" of its tax returns, which it has not filed since 2012. Id. 

"[F]inancial hardship is an affirmative defense that a respondent has the burden of proving, 

because its financial records are within its sole control." Rushmore Helicopters, Inc., FAA Order 

No. 2012-8 at 14 (citing Atlas Frontiers, LLC, FAA Order No. 2010-10 (June 16, 2010)). At the 

hearing, the only evidence that EMA presented in support of its inability to pay defense was three 

W-2s showing the wages paid to Mr. Dobitsch as EMA's president. Tr. 158-162; Exh. R-E, R-F, 

R-G. EMA claimed at the hearing on March I 0, 2015, as it does now, that it had no other financial 

records available for review. 2 "A respondent attempting to prove inability to pay must substantiate 

his or her claims at the hearing with the types of records that a reasonable person would accept as 

reliable and probative on the issues of incomes and expenses." Villamor Tabula, FAA Order No. 

2010-6 at 13 (June 15, 2010) (citing Gil{ffrida, FAA Order No. 1992-72 (Dec. 21, 1992)). In this 

2 See Tr. 11 (stating that EMA had "not completed [its] 2012, '13, or '14 tax returns" and that it 

owed its accountant "in excess of 15,000 dollars[,]" but that it was "squared away, and [EMA 

was] going to work on [its] 2012 tax returns"); R. Brief (stating that EMA was "unable to pay for 

tax return preparation since 2012" but had "satisfied [its] outstanding balance ... and [was] only 

now beginning to work toward completion of [its] overdue returns."). 

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case, EMA did not present any evidence of its income or expenses, except for the wages it paid to 

Mr. Dobitsch. Accordingly, the ALJ properly found that the three W -2s were insufficient to prove 

EMA's inability to pay either the proposed $46,200 civil penalty or the $16,200 civil penalty she 

ultimately assessed. Tr. 205-206; Decision at 5? 

EMA's position on appeal is no different than it was at the hearing. Although EMA asserts 

that review of additional evidence-tax returns-will show that it is unable to pay either the 

proposed civil penalty of $46,200 or the $16,200 civil penalty assessed by the ALJ, it failed to 

produce that evidence at the hearing before the ALJ in March 2015. The fact that EMA asserts that 

its accountant had not (and apparently still has not) prepared its taxes does not explain why EMA had 

no other available financial records to present at the hearing on March 10, 2015. Indeed, tax returns 

are merely a presentation of information contained in the underlying financial records concerning the 

business' income, expenses, assets, and liabilities for the purpose of calculating the amount of tax 

owed or the amount overpaid. EMA gave no explanation for why it did not present this supporting 

information, which it would have had to provide to its accountant, at the hearing. And, even if EMA 

had submitted its tax returns with its appeal, "it is too late to submit these documents on appeal when 

their significance cannot be clarified through cross-examination." Tabula, FAA Order No. 2010-6 at 

13. See Rushmore Helicopters, FAA Order No. 2012-8 at 15 (quoting Tabula). 

3 The ALJ reduced the sanction for EMA's violation of 14 C.P.R.§§ 135.293(a) and 135.299(a) 

on other grounds, which Complainant has challenged in its cross-appeal. 

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For all these reasons, the Administrator should deny EMA' s appeal. 

Dated: August 29, 2016 

Respectfully submitted, 

Patricia A. McNall 

Acting Assistant Chief Counsel for Enforcement 

B '-, -P-IIA'Lfl.l' 

Amanda Bruchs eridan, Attorney 

Enforcement Division, AGC-300 

Federal Aviation Administration 

Office of the Chief Counsel 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Telephone: (202) 267-4761 (direct) 

(202) 267-5106 (fax) 

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CERTIFICATE OF SERVICE 

I certify that on this date I sent the foregoing Complainant's Reply Brief by certified mail 

return-receipt requested, first-class mail, and fax to: 

William Dobitsch, Jr. 

Endless Mountains Air, Inc. 

Seamans Airport 

727 Windsock Lane 

Factoryville, PA 18419 

Fax: (570) 945-5953 

I also certify that on this date I personally delivered the original and one copy of the 

foregoing to: 

Federal Aviation Administration 

ATTN: Hearing Docket Clerk, AGC-430 

600 Independence Avenue, SW 

Wilbur Wright Bldg., Ste. 2W1000 

Washington, DC 20591 

Dated: August 29,2016 

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