U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

DEC 29 2809 

RECEIVED 

FEDERAL AVIATION ADMINISTRATION, HEARING DOCKET 

Complainant, 

vs. FAA Docket No. , ^ -v^tU 

Judge Cf^HS^^^'^ 

Executive Office of the State of Texas c^. < C)i^ 

Respondent. (( ^ °^ ^ 

RESPONDENT'S ORIGINAL ANSWER AND AFFIRMATIVE DEFENSES 

Respondent, the TEXAS ARMY NATIONAL GUARD, by counsel, files this its 

Original Answer and Affirmative Defenses pursuant to Rule 209 (14 C.F.R. § 13.209) ofthe 

Rules of Practice and shows: 

A. Admissions & Denials 

1. Respondent denies the allegations of this paragraph. Respondent denies its 

designation as the "Executive Office ofthe State of Texas". Such a state agency does 

not exist. Respondent's name is the "Texas Army National Guard." The 

Complainant agency. Federal Aviation Administration (FAA), for whatever reasons, 

refuses to use the proper designation, although this designation has been brought to 

its attention at least twice. Respondent should be identified as "Texas National 

Guard" or "Texas Guard", rather than simply "Texas." Respondent admits the 

remainder of the paragraph. 

II. 

2. Respondent admits the allegations of this paragraph. 

3. Respondent admits the allegations of this paragraph. 

4. Respondent admits the allegations of this paragraph. 

5. Respondent admits the allegations of this paragraph. 

6. Respondent admits the allegations of this paragraph. 
7. Respondent admits the allegations of this paragraph. 

8. Respondent admits the allegations of this paragraph, 

9. Respondent admits the allegations of this paragraph. 

10. Respondent admits the allegations of this paragraph. 

11. Respondent admits the allegations of this paragraph. 

12. Respondent admits the allegations of this paragraph. 

13. Respondent admits the allegations of this paragraph, 

14. Respondent admits the allegations of this paragraph. 

15. Respondent admits the allegations of this paragraph. 

16. Respondent admits the allegations of this paragraph, 

17. Respondent admits the allegations of this paragraph. 

18. Respondent admits the allegations of this paragraph. 

19. Respondent admits the allegations of this paragraph. 

20. Respondent admits the allegations of this paragraph. 

21. Respondent admits the allegations of this paragraph. 

III. 

22. This paragraph is a statement of law that Respondent need not respond to. 

Crowley/FAA/Respondent's Original Answer and Affirmative Defenses Page 2 of 5 
23. Respondent denies that the proposed civil penalty of $30,000.00 is appropriate. 

Respondent presented detailed documentation of its corrective actions to the FAA on 

June 10,2009. The FAA did not question or otherwise express dissatisfaction with 

this response until November 17, 2009, when it stated in correspondence that "the 

materials were insufficient to meet the relevant training requirements." The FAA's 

Final Notice of Proposed Civil Penalty, dated October 14, 2009, did not raise any 

concerns about the Guard's corrective action; it simply states the proposed "amount 

includes consideration of any corrective action implemented as a result of these 

allegations." The FAA has not applied any objective criteria in determining the 

proposed penalty, especially in the area of remedial efforts taken by the Guard. 

BECAUSE the incident made the subject of this complaint was a first time incident, 

and because significant remedial action has been taken, the Texas Guard requests that the 

Administrative Law Judge assess a penalty reflecting the one time nature ofthe incident, and 

the Guard's efforts at remediation, and impose a penalty of significantly less than 

$30,000.00. 

B. Affirmative Defenses 

24. The penalty the FAA would impose is arbitrary and capricious and an abuse of 

discretion. The FAA has not addressed the fact that the incident before this 

Administrative Law Judge was a first time incident and that the Guard procedures 

have been changed. Complaint states corrective action was given effect while the 

FAA correspondence of November 17,2009 states it has not. Clearly the FAA has 

not applied any objective standards in determining the amount ofthe civil penalty to 

be imposed. 

25. Respondent would show that it has sought to reach a settlement with the FAA since 

the beginning of these proceedings. 14 C.F.R. § 13. lb(n) permits such settlements by 

the FAA. Resolving this matter should not require formal administrative adjudication, 

and if the agency would negotiate with the Guard in good faith it will not. Its decision 

not to do so is arbitrary, capricious and an abuse to discretion. 

Crowley/FAA/Respondent's Original Answer and Affirmative Defenses Page 3 of 5 
WHEREFORE, because the incident made the subject of this complaint was a first 

time incident, and because significant remedial action regarding the Guard shipping 

procedures has been implemented, the Texas Guard requests that the Administrative Law 

Judge take these factors of negotiations into account, and assess a civil penalty significantly 

less than $30,000.00. 

Respectfully submitted, 

GREG ABBOTT 

Attorney General of Texas 

KENT C. SULLIVAN 

First Assistant Attorney General 

DAVID S. MORALES 

Deputy Attorney General for Civil Litigation 

BARBARA B.DEANE 

Chief/AdministratiVo^aw Ddviai< 

, ^ 

[CHAEL C. CROSBY 

Assistant Attorney/General 

State Bar No. 05170300 

OFFICE OF THE ATTORNEY GENERAL OF TEXAS 

Environmental Protection and Administrative 

Law Division 

P.O. Box 12548, Capitol Station 

Austin, Texas 78711-2548 

Phone: (512)475-4208 

Fax: (512)474-1062 

Crowley/FAA/Respondent's Original Answer and Affirmative Defenses Page 4 of 5 
CERTIFICATE OF SERVICE 

I certify that a true and correct copy ofthe above and foregoing instrument has been 

served on this the.2-!^ day of December 2009 on the following counsel of record: 

Hearing Docket Clerk 

FAA, AGC-430, Suite 2W1000 

Wilbur Wright Building 

800 Independence Avenue, SW 

Washington, DC 20591 

Gerald A, Ellis, Attorney 

U.S. Department of Transportation 

Office ofthe Regional Counsel, Southern Region 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, Georgia 30320 

Attorney for Complainant 

:HAEL C. CROWLEY 

Assistant Attorney General 

Crowley/FAA/Rcspondent' s Original Answer and Affirmative Defenses Page 5 of 5