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: " •'tlNITED STATES OF AMERICA 

DHPARIMHNT OF TRANSPORTATION O '.„ f^ r ^ « ^ . , ^ 

FEDERAL AVIATION ADMINISTRATION ^ ' ''-'• '*--'' *-*'i I V^|— r \ 

WASHINGTON, D.C. '^^ ^ mnim 

Tnlhe Matter of ^-'b^^p-VQ DOCKE T 

DIAMOND AIR CHARTER, INC. 

FAA Docket No. 201 OEAl 10008 

(Civil Penalty Proceeding) 

Administrative Law .ludge (Not yet assigned) 

ANSWER AND AFFTRMATTVE DEFENSES 

1 

COMES NOW, Diamond Air Charter, Inc., by and rhrougli undersigned counsel, 

and hereby llie.s its Answer, pursuant to Rule 209 of the Rules of Practice (14 C.F.R. 

§13.209). In support thereof. Diamond Air Charter, Inc., states the following: 

ANSWER 

II 

1. DIAMOND AIR CHARTER, INC. adnnils the allegations contained in paragraph 

1 of the Complaint. 

2. DIAMOND AIR CHARTER, INC. 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 dcmand.s strict proof thereof 

3. DIAMOND AIR CHARTER, INC. denies the allegations contained in paragraph 

3 of the Complaint. 

4. DIAMOND AIR CHARTER, INC. denie.s the allegations contained in paragraph 

4 of the Complaint. 
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5. DIAMOND AIR CHARTER, IMC. denies the alleeations contained in paragraph 

5 of the Complaint. 

Ill 

6. DIAMOND AIR CHAR'IER, INC. denie.s that it violated 14 C.F.R. § 119.5(k). 

IV 

7. DIAMOND AIR CHARTER, INC. denies that pursuant to 49 U.S.C 

§46301 (a)(1) 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. 

8. DIAMOND AIR CHARTER, INC. denies that under the facts and circumstances 

of this case, a civil penalty of $1,100 is appropriate. 

9. Any matter not specifically admitted by DIAMOND AIR CHARIER, INC. shall 

be deemed denied. 

AFFIRMATIVE DEFENSES 

1. DIAMOND AIR CHARTER, INC. relies upon the alTirmative defense of 

reasonable reliance. 

2. 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 hisioiry 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 a.s justice 

may require. See 49 IJ-S.C. §46301(e)(2); See also Folsom's Air Service. Inc.. 

FAA Order No. 2008-11 (November 6, 2008), p. 11. 
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3. In dctemiining the civil penalty amount, the Complainant has failed to determine 

whether the violation was inadvertent or deliberate. 

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

the Respondenf.s size, particularly in determining the alleged offcnder'.s ability to 

absorb the sanction. 

5. The proposed civil penaltj' fails to reflect the totality of the circumstances 

surrounding the violations. See Fohom's Air Service, Inc., FAA Order No. 2008-

11 (>Jovcmber 6, 2008), p. 12; Eastern Air Center Inc., FAA Order No. 200S-3 

(January 28, 2008). 

6. DIAMOND AIR CHARTER, INC. does not have the iinanciai ability to pay the 

proposed civil penalty. 

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

DIAMOND AIR CHARTER, INC. to continue doing business. 

8. 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); Watkinn v. 

NTSB, 178 F.3d 959, 961 (8th Cir. 1999). 

9. The FAA'S interpretation of its aviation regulations is unconstitutionally vague. 

See Thoma.'i v. Himon. 74 F.3d 888, 889 (8th Cir. 1996); see also Tram' States 

Airline.^. Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006); Heath v. SF.C, 2009 

U.S. App. LEXIS 24128 at 53-55. 
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10. The FAA's application of its Federal Aviation Regulations in this ca.se is contrary 

to the regulation's plain language. SceAdvanta USA, Inc. v. Chao, 350 F.3d 726, 

728 (8th Cir. 2003), quoting Gardehring v. Jenkim, 485 U.S. 415, 430, 108 S. Ct. 

1306. 99 L. Ed. 2d 515 (1988). See also Tranx State.s Airlin<;.s. Inc. v. FAA^ 439 

F.3d 863, 864-865 (8th Cir. 2006). 

11. DIAMOND AIR CHARTER, INC. asserts that the Complainant has failed to state 

a claim upon which the relief requested may be granted. 

12. DIAMOND AIR CHARTER, INC. asserts that the Complainant lacks .substantial 

ba.sis in law and fact to continue prosecution of thi.sj^t^ against it. 

Dated this 22"'^ day of June 2010. 

ubmitted. 

S. WINTORESQ. 

ition Law Firm 

;h Court, Suite 450 

Rockville, MD 20850 

Tel: (301) 294-8550 

Fax; (.301)294-2525 

Grcg@ A viationLawExperts, com 

Counsel for Respondent 
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CERTIFICATE OF SERVICE 

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

original and one (T) copy of the foregoing Answer and 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 1 have this date sent via facsimile iind first class mail a copy of the 

foregoing Aiiswer and Affirmative Defenses addressed 

Zachary M. Bermaa, Esq. 

FAA Eastern Region, AEA-7 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

Tel: 718 553-3258 

Fax:718 533-5699 

Dated this 22'"^ day of June 2010. 

mitted. 

GREGORY S. WINTON, ESQ. 

The Aviation Law Firm 

One Research Court, Suite 450 

Rockville, MD 20850 

Tel; (301) 294-8550 

Fax:(301)294.2525 

Greg(5jAviationLawExperts.com 

Counsel for Respondent 

t.a.