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 of the Rules of Practice (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 of the Complaint. 

2. BAER AIR admits the allegations contained in paragraph number 2 of the Complaint. 

3. BAER AIR admits the allegations contained in paragraph number 3 of the 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 belief as to the truth or falsity of the remaining 

allegations in paragraph 4, and therefore denies same and demands strict proof thereof. 
5(a). BAER AIR lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph number 5(a) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

5(b ). BAER AIR lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph number 5(b) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

5( c). BAER AIR lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph number 5(c) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

5( d). BAER AIR lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph number 5( d) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

5( e). BAER AIR lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph number 5( e) of the Complaint and 

therefore, denies same and demands strict proofthereof. 

5(f). BAER AIR lacks knowledge or information sufficient to form a belief as to the 

truth or falsity of the allegations contained in paragraph number 5(f) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

2 [SIC]. BAER AIR denies the allegations contained in paragraph number 2 of the 

Complaint and demands strict proof thereof. 

3 [SIC]. BAER AIR denies the allegations contained in paragraph number 3 of the 

Complaint and demands strict proof thereof. 

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4(a) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(a) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(b) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(b) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4( c) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4( c) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(d) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4( d) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4( e) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(e) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(f) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(f) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(g) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(g) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

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4(h) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(h) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(i) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(i) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(j) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(j) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(k) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(k) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(1) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(1) of the Complaint and 

therefore, denies same and demands strict proofthereof. 

4(m) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(m) of the Complaint and 

therefore, denies same and demands strict proofthereof. 

4(n) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(n) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

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4( o) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(o) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(p) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(p) of the Complaint and 

therefore, denies same and demands strict proofthereof. 

4(q) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(q) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(r) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(r) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(s) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(s) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(t) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(t) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

4(u) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4(u) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

5 
4(v) [SIC]. BAER AIR lacks knowledge or information sufficient to form a belief as to 

the truth or falsity of the allegations contained in paragraph number 4( v) of the Complaint and 

therefore, denies same and demands strict proof thereof. 

5 [SIC]. BAER AIR denies the allegations contained in paragraph number 5 of the 

Complaint and demands strict proof thereof 

6 [SIC]. BAER AIR denies the allegations contained in paragraph number 6 of the 

Complaint and demands strict proof thereof. 

7 [SIC]. BAER AIR denies the allegations contained in paragraph number 7 of the 

Complaint and demands strict proof thereof. 

8 [SIC]. BAER AIR denies the allegations contained in paragraph number 8 of the 

Complaint and demands strict proof thereof. 

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 of the violations alleged. 

BAER AIR denies that under the facts and circumstances of this 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 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 

6 
business; and (7) other matters as justice may require. See 49 U.S.C. §4630 1 ( e )(2); See also 

Folsom's Air Service, 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 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). 

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. BAER AIR 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 of BAER 

AIR to continue doing business. 

8. BAER AIR 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 of evidence 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 of diligence. 

9. BAER AIR relies upon the affirmative defense of reasonable reliance. 

7 
10. 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). 

11. 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. 

12. The FAA's application of its Federal Aviation Regulations in this case is contrary to 

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

2003), quoting Garde bring 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). 

13. BAER AIR asserts that the Complainant has failed to state a claim upon which the 

relief requested may be granted. 

14. BAER AIR asserts that the Complainant lacks substantial basis in law and fact to 

continue prosecution of this matter against it. 

Dated: Aprill4, 2014 

Respectfully submitted, 

/ //1 / j· .I 

.::::'--4~ifc:7) 1111 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 

8 
CERTIFICATE OF SERVICE 

I hereby certify that I have this date sent via Federal Express, postage pre-paid, an original and 

one copy of the foregoing Reopondent's Answer and Affirmative Defenses addressed to: 

ORIGINAL AND ONE COPY 

Federal Aviation Administration 

600 Independence Avenue, SW. 

Wilbur Wright Building--Suite 2Wl 000 

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 of the foregoing addressed to: 

ONE COPY 

Vincent Bennett 

Office of the 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 FED EX ONLY) 

Office of Hearings, M-20 

U.S. Department of Transportation 

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