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OrPI OMR ;;o>=On!/tJJPi DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

EMPIRE AIRWAYS 

Respondent 

FAA DOCKET NO. CP10EA0002 

(Civil Penalty Proceeding) 

DMSNO. FAA-2010-0191 

HONORABLE ISAAC D. BENKIN 

ADMINISTRATIVE LAW JUDGE 

Hearing Date: June 29, 2010 

Hearing Location: Islip, NY 

AMENDED ANSWER AND AFFIRMATIVE DEFENSES 

COMES NOW, EMPIRE AIRWAYS, by and through undersigned counsel, pursuant to 

Rule 214 of the Rules of Practice (14 C.F.R. §13.214), and hereby Amends its Answer and 

Affirmative Defenses filed in this matter on March 12, 2009, as follows: 

ANSWER 

1. EMPIRE AIRWAYS denies the allegations contained in paragraph 1 of the Complaint. 

2. EMPIRE AIRWAYS lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 2 of the Complaint and therefore, 

denies same and demands strict proof thereof. 

3. EMPIRE AIRWAYS denies the allegations contained in paragraph 3 of the Complaint. 

4. EMPIRE AIRWAYS denies the allegations contained in paragraph 4 of the Complaint. 
5. EMPIRE AIRWAYS lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 5 of the Complaint and therefore, 

denies same and demands strict proof thereof 

6. EMPIRE AIRWAYS lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 6 of the Complaint and therefore, 

denies same and demands strict proof thereof. 

7. EMPIRE AIRWAYS lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 7 of the Complaint and therefore, 

denies same and demands strict proof thereof 

8. EMPIRE AIRWAYS lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 8 of the Complaint and therefore, 

denies same and demands strict proof thereof 

9. EMPIRE AIRWAYS lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 9 of the Complaint and therefore, 

denies same and demands strict proof thereof 

10. EMPIRE AIRWAYS lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph 10 of the Complaint and 

therefore, denies same and demands strict proof thereof 

11. EMPIRE AIRWAYS denies the allegations contained in paragraph 11 of the Complaint. 

12. EMPIRE AIRWAYS denies the allegations contained in paragraph 12 of the Complaint. 

13. EMPIRE AIRWAYS denies the allegations contained in paragraph 13 of the Complaint. 

14. EMPIRE AIRWAYS denies that it violated 14 C.F.R. §43.13(a). 

15. EMPIRE AIRWAYS denies that it violated 14 C.F.R. §43.13(b). 
16. EMPIRE AIRWAYS denies that it violated 14 C.F.R. §91.405(a). 

17. EMPIRE AIRWAYS denies that it violated 14 C.F.R. §91.407(a)(1). 

18. EMPIRE AIRWAYS denies that it violated 14 C.F.R. §91.407(a)(2). 

19. EMPIRE AIRWAYS denies that it violated 14 C.F.R. §91.7(a). 

20. EMPIRE AIRWAYS denies that pursuant to 49 U.S.C. §46301(a)(l) it is liable for a civil 

penalty not to exceed $25,000 for each of the violations alleged, or, pursuant to or 49 

U.S.C. §46301(a)(5), it is liable for a civil penalty not to exceed $11,000 for each of the 

violations alleged. 

21. EMPIRE AIRWAYS denies that under the facts and circumstances of this case, a civil 

penalty of $20,000.00 is appropriate. 

22. Any matter not specifically admitted by EMPIRE AIRWAYS shall be deemed denied. 

AFFIRMATIVE DEFENSES 

1. EMPIRE AIRWAYS relies upon the affiraiative defense of reasonable reliance. 

2. EMPIRE AIRWAYS is not the entity that operated the flight in question. 

3. EMPIRE AIRWAYS is not the entity that performed the aircraft maintenance in 

question. 

4. In determining the civil penalty amount, the Complainant has failed to consider (1) the 

nature and circumstances of the violation; (2) the extent and gravity of the violation; (3) 

the respondent's degree of culpability; (4) the respondent's history of prior violations, if 

any; (5) the respondent's ability to pay the civil penalty; (6) the effect on the entity's 

ability to stay in business; and (7) other matters as justice may require. See 49 U.S.C. 

§46301(e)(2); See also Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6, 

2008), p. 11. 
5. In determining the civil penalty amount, the Complainant has failed to determine whether 

the violation was inadvertent or deliberate. 

6. In determining the civil penalty amount, the Complainant has failed to consider the 

Respondent's size, particularly in determining the alleged offender's ability to absorb the 

sanction. 

7. The proposed civil penalty fails to reflect the totality of the circumstances surrounding 

the violations. See Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6, 

2008), p. 12; Eastern Air Center, Inc., FAA Order No. 2008-3 (January 28, 2008). 

8. Finding multiple violations for the same offense would constitute '"piling on' [that] 

should be avoided except under the most egregious circumstances." In the Matter of 

Carr, FAA Order No. 1998-2 at 11-12 (March 12, 1998). 

9. EMPIRE AIRWAYS does not have the financial ability to pay the proposed civil penalty. 

10. The proposed civil penalty would have a detrimental effect on the ability of EMPIRE 

AIRWAYS to continue doing business. 

11. The Federal Aviation Administration's (FAA's) interpretation of its Federal Aviation 

Regulations in this case is arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law. See 5 U.S.C. § 706(2) (A); Watkins v. NTSB, 178 F.3d 959,961 

(8th Cir. 1999). 

12. The FAA's interpretation of its aviation regulations is unconstitutionally vague. See 

Thomas v. Hinson, 74 F.3d 888, 889 (8th Cir. 1996); see also Trans States Airlines, Inc. 

V. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006); Heath v. SEC, 2009 U.S. App. LEXIS 

24128 at 53-55. 
13. The FAA's application of its Federal Aviation Regulations in this case is contrary to the 

regulation's plain language. SeeAdvanta USA, Inc. v. Chao, 350 F.3d 726, 728 (8th Cir. 

2003), quoting Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S. Ct. 1306, 99 L. Ed. 2d 

515 (1988). See also Trans States Airlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 

2006). 

14. EMPIRE AIRWAYS asserts that the Complainant has failed to state a claim upon which 

the relief requested may be granted. 

15. EMPIRE AIRWAYS asserts that the Complainant lacks substantial basis in law and fact 

to continue prosecution of this matter against it. 

Dated this 2nd day of June 2010. 

GREGq^;^ . WINTON, ESQ. 

TheA.viatK)n Law Firm 

One Research Court, Suite 450 

Rockville,MD 20850 

Tel: (301) 294-8550 

Fax:(301)294-2525 

Greg@AviationLawExperts.com 

Counsel for Respondent 
II 

CERTIFICATE OF SERVICE 

I hereby certify that I have this date served by regular U.S. mail, postage prepaid, an original 

and one (1) copy of the foregoing Amended Affirmative Defenses addressed to: 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Room 924A 

Washington, D.C. 20591 

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

Amended Affirmative Defenses addressed to: 

The Honorable Isaac D. Benkin 

Administrative Law Judge 

Office of Hearings, M-20 

U. S. Department of Transportation 

1200 New Jersey Ave., S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

Tel: 202 366-3212 

Fax: 202 366-7536 

r' 

Zachary M. Berman, Esq. 

FAA Eastern Region, AEA-7 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

Tel: 718 553-3258 

Fax:718 533-5699 

>nd Dated this 2"" day of June 2010. 

I 1 

Respectful 

GREGORYS. WINTON, ESQ. 

TheA.vi5tlon Law Firm 

Om Research Court, Suite 450 

Rockville,MD 20850 

Tel: (301) 294-8550 

Fax:(301)294-2525 

Greg@AviationLawExperts.com 

Counsel for Respondent