U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF BAER AIR, INC. Respondent FAA CASE NO. 2011S0150234 (Civil Penalty Proceeding) ADMINISTRATIVE LAW JUDGE NOT YET ASSIGNED Hearing Date: NOT YET ASSIGNED Hearing Location: NOT YET ASSIGNED 

# RECEIVED APR 1 5 2014 

## HEARING DOCKET

RESPONDENT'S ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Baer Air, Inc. (hereinafter "Baer Air"), by and through undersigned counsel, pursuant to Rule 209 ofthe Rules ofPractice (14 C.F.R. 

### § 13 .209) and hereby files the following Answer and Affirmative Defenses to the Administrator's "corrected Complaint," served on April4, 2014. ANSWER 1. BAER AIR admits the allegations contained in paragraph number 1 ofthe Complaint. 2. BAERAIR admits the allegations contained in paragraph number 2 ofthe Complaint. 3. BAERAIR admits the allegations contained in paragraph number 3 ofthe Complaint. 4. BAER AIR admits only that on or about May 24, 2011, to May 26, 2011, FAA Aviation Safety Inspectors conducted an inspection ofBAER AIR's facility. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe remaining allegations inparagraph 4, and therefore denies same and demands strict proofthereof.5(a). BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 5(a) ofthe Complaint and therefore, denies same and demands strict proofthereof. 5(b). BAERAIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 5(b) ofthe Complaint and therefore, denies same and demands strict proofthereof. 5(c). BAERAIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 5(c) ofthe Complaint and therefore, denies same and demands strict proofthereof. 5(d). BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained inparagraph number 5(d) ofthe Complaint and therefore, denies same and demands strict proofthereof. 5(e). BAERAIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained inparagraph number 5(e) ofthe Complaint and therefore, denies same and demands strict proofthereof. 5(f). BAERAIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 5(f) ofthe Complaint and therefore, denies same and demands strict proofthereof. 2 [SIC]. BAER AIR denies the allegations contained in paragraph number 2 ofthe Complaint and demands strict proofthereof. 3 [SIC]. BAER AIR denies the allegations contained in paragraph number 3 ofthe Complaint and demands strict proofthereof.

24(a) [SIC]. BAERAIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(a) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(b) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained inparagraph number 4(b) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(c) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(c) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(d) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(d) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(e) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(e) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(f) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(f) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(g) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(g) ofthe Complaint and therefore, denies same and demands strict proofthereof.



### 34(h) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(h) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(i) [SIC]. BAERAIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(i) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(j) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(j) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(k) [SIC]. BAERAIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(k) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(1) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(1) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(m) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(m) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(n) [SIC]. BAERAIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(n) ofthe Complaint and therefore, denies same and demands strict proofthereof.

44(o) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(o) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(p) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(p) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(q) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(q) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(r) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(r) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(s) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(s) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(t) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(t) ofthe Complaint and therefore, denies same and demands strict proofthereof. 4(u) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(u) ofthe Complaint and therefore, denies same and demands strict proofthereof.



### 54(v) [SIC]. BAER AIR lacks knowledge or information sufficient to form a beliefas to the truth or falsity ofthe allegations contained in paragraph number 4(v) ofthe Complaint and therefore, denies same and demands strict proofthereof. 5 [SIC]. BAER AIR denies the allegations contained in paragraph number 5 ofthe Complaint and demands strict proofthereof 6 [SIC]. BAER AIR denies the allegations contained in paragraph number 6 ofthe Complaint and demands strict proofthereof. 7 [SIC]. BAERAIR denies the allegations contained in paragraph number 7 ofthe Complaint and demands strict proofthereof. 8 [SIC]. BAER AIR denies the allegations contained in paragraph number 8 ofthe Complaint and demands strict proofthereof. 9(a) [SIC]. BAER AIR denies that it violated 14 C.P.R. § 91.409(1)(2). 9(b) [SIC]. BAER AIR denies that it violated 14 C.P.R. § 119.5(1). BAER AIR denies that pursuant to 49 U.S.C. § 46301, it is subject to a civil penalty not to exceed $11,000 for each ofthe violations alleged. BAERAIR denies that under the facts and circumstances ofthis case, a civil penalty of $22,000 is appropriate. Any other allegations not specifically numbered by paragraph are hereby denied. AFFIRMATIVE DEFENSES 1. In determining the civil penalty amount, the Complainant has failed to consider (1) the nature and circumstances ofthe violation; (2) the extent and gravity ofthe violation; (3) the respondent's degree ofculpability; (4) the respondent's history ofprior violations, ifany; (5) the respondent's ability to pay the civil penalty; (6) the effect on the entity's ability to stay in

6business; and (7) other matters asjustice may require. See 49 U.S.C. §4630 1 ( e)(2); See also Folsom'sAirService, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 11. 2. In determining the civil penalty amount, the Complainant has failed to determine whether the violation was inadvertent or deliberate. 3. 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. 4. The proposed civil penalty fails to reflect the totality ofthe circumstances surrounding the violations. See Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 12; EasternAir Center, Inc., FAA Order No. 2008-3 (January 28, 2008). 5. 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). 6. BAERAIR does not have the financial ability to pay the proposed civil penalty. 7. The proposed civil penalty would have a detrimental effect on the ability ofBAER AIRto continue doing business. 8. BAERAIR relies upon the equitable doctrine oflaches because (a) there was a lack of diligence by the FAA in this matter, (b) the FAA was inexcusably and unreasonably dilatory in pursuing its case, and that the delay has resulted in a loss ofevidence or witnesses supporting BAER AIR's position, (c) BAER AIR has changed its position in a manner that would not have occurred but for the delay, and (d) there was other actual prejudice to BAER AIR caused by the FAA's lack ofdiligence. 9. BAER AIR relies upon the affirmative defense ofreasonable reliance.

710. The Federal Aviation Administration's (FAA's) interpretation ofits Federal Aviation Regulations in this case is arbitrary, capricious, an abuse ofdiscretion, 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). 11. The FAA's interpretation ofits aviation regulations is unconstitutionally vague. See Thomas v. Hinson, 74 F.3d 888, 889 (8th Cir. 1996); see also Trans StatesAirlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006); Heath v. SEC, 2009 U.S. App. LEXIS 24128 at 53-55. 12. The FAA's application ofits Federal Aviation Regulations inthis 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 StatesAirlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006). 13. BAER AIR asserts that the Complainant has failed to state a claim upon which the reliefrequested may be granted. 14. BAERAIR asserts that the Complainant lacks substantial basis in law and fact to continue prosecution ofthis matter against it. Dated: Aprill4, 2014 Respectfully submitted,



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# f#P**~::;;J ~;:XREGORY**  S. WINTON, ESQ. ,/ JARED M. ALLEN, ESQ. The Aviation Law Firm One Research Court, Suite 450 Rockville, MD 20850 Tel: (301) 294-8550 Fax: (866) 568-9886 JAllen@A viationLawExperts.com Counsel for Respondent

8CERTIFICATE OF SERVICE I hereby certify that I have this date sent via Federal Express, postage pre-paid, an original and one copy ofthe foregoing Reopondent'sAnswer andAffirmative Defenses addressed to: ORIGINAL AND ONE COPY Federal Aviation Administration 600 Independence Avenue, SW. Wilbur Wright Building--Suite 2Wl000 Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 And, further, that I have this date sent by electronic mail and by Federal Express, postage prepaid, a copy ofthe foregoing addressed to: ONE COPY Vincent Bennett Office ofthe Regional Counsel, ANE-7 12 New England Executive Park Burlington, MA 01803 ATTN: Vincent 

### J. Bennett Tel: (781) 238-8044 Fax: (781) 238-7055 Vincent.bennett@faa.gov ONE COPY (VIA FEDEX ONLY) Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Ave, S.E. Washington, D.C. 20590 Dated: April14, 2014

. Allen, Esq.

, // The Aviation Law Firm

9 One Research Court, Suite 450 Rockville, MD 20850 Tel: (301) 294-8550 Fax: (866) 568-9886