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U.S. DEPARTVfHNT OF TRANSPORTATION ' *r, ..:. 

OFFICE OF HEARINGS 

WASHINGTON. D.C 

• '^ .'•.'.-••j i 

ns' Tf IE MATTER OF 

FL£ET AVIATION, LLC 

Respondent 

FAA DOCKET NO. 2010EA11002' 

(Civil Pena[t>' Proceeding) 

DMSNO. FAA- ^( ) '' " '^ ' / 

ADMTKTSTRATIVE LAW JUDGE 

NOT YET ASSIGNED 

Hcanng Date: NOT YET ASSIGNED r?^^f^ 

Hearing Location: NOl" YET ASIGNED X) iS^^i^ 

^' Bp.^ 

RESPONPKNT^S ANSWER AND AFFIRMATIVE DEFENSES ^ 

1 

COMES NOW, FLEET AVIATION, LLC, by and through undersigned counsel, pursuant 

TO Rule 209 oflhe Rules of Practice (14 C.F.R. §13.209), and hereby files the ibliowing Answer 

and AtTirmative Defenses to the Complainant'^ Compliant dated September 23, 20] I. 

11 

1. FLEET AVIATION. LLC admits the allegations contained in paragraph number I of the 

Complaint. 

2. FLEET AVIATION, LLC admits the allegations contained in paragraph number 2 of the 

Complaini. 

3. FLEET AVIATION, LLC denies the allegations contained in paragraph number 3 of the 

Complaini. 
_10/2VJ0nn ^ FAX 202^9351.2 FAA ,OHS „,„,„„, 

4. FLEET AVIATION, LLC denies ihc allegations contained in paragraph number 4 of the 

Complaint. 

5. FLEET AVIATION, LLC denies the allegations coniained in paragraph number 5 of the 

Complaini, 

6. FLEET AVIATION, LLC denies the allegations contained in paragraph number 6 of the 

Complaint. 

7. FLEEl AVIATION. LLC denies the allegations contained in paragraph number 7 of the 

Complaint. 

Ill 

a. FLEET AVIATION, LLC denies that it violated 14 C.F.R. §135.323(a)(1). 

b. FLEET AVIATION, LLC denies that it violated 14 C.F.R. §135.33l(c). 

IV 

1. FLEET AVIATION. LLC denies that pursuant to 49 U.S.C. §46301 (a)(1) it is liable for a 

civil penalty not lo exceed 525,000 for each of the violations alleged, or, that pursuant to 49 

U.S.C. §46301 (a)(5), it is liable for a civil penally not to exceed SlLOOO for each of the 

violations alleged. 

2. FLEET AVIATION, LLC denies that under the facts and circumstances of this case, a civil 

penalty of S50,000.00 is appropriate. 

Any matter not specifically admitted by FLEET AVIATION, LLC shall be deemed denied. 
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AFFIRMATIVE DEFENSES 

1. FLEET AVIATION, LLC relies upon the affinnative defense of reasonable reliance. 

2. In determining the civil penalty amount, ihe Complainant has failed to consider (I) 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 maners as justice may require. See 49 U.S.C. §46301(c)(2); 

See also Folsom'a Air Service, Inc., FAA Order No. 2008-11 (November 6, 200K), p. 11. 

3. In determining the civil penalty amount, the Complainant has failed to determine whether, 

the violation was inadvertent or deliberate. 

4. In determining the civil pcnalt>' amount, the Complainant has failed to consider the 

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

sanction. 

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

violations. See Fohnm'.s Air Service, Inc., FAA Order No. 2008-11 (November 6. 2008), p. 

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

6. Finding multiple violations for the same offense would constitute '"piling on' fthal] should 

be avoided except under the most egregious circumstances." In (he Matter ofCarr., FAA 

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

7. FLEET AVIATION, LLC does not have the financial ability to pay the proposed civil 

penalty. 
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8. The proposed civil penalty would have a detrimental elTeci on the ability of FLEET 

AVIATION, LLC to continue doing business. 

9. 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); Uaikins v. NTSB, 178 F.3d 959. 961 (8th 

Cir. 1999). 

10. The FAA'S interpretation of its aviation regulations is unconstimtionally vague. See 

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

FAA, 439 l-.3d 863, 864-865 (8th Cir. 2006); Neath v. SEC, 2009 U.S. App. LEXTS 24128 

at 53-55. 

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

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

2003),quoting Gardehrinj^v. Jenkins,485 U.S. 415, 430,108 S. Ct. 1306.99L. Ed. 2d 515 

(1988). Sec also Trans Slates Airiines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006). 

12 FLEET AVIATION. LLC assen^j that the Complainant has failed to .state a claim upon 

which the relief requested may be granted. 

13. FLEET AVIATION. LLC asserts that the Complainant lack.s substantial basis in law and 

fact to continue prosecution of ihii; matter against it. 
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Dated: October?. 2011 

Respcctl 

GREGORrS. WINTON, ESQ. 

ITie A<qation Law Firm 

OneAescarch Court, Suite 450 

Ro/k\'iile, IvfD 20850 

T/1: (301) 294-8550 

Fix: (301) 294-2525 

Greg@Aviationr.awExperts.com 

Counsel for Respondent 
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CERTIFICATE OF SERVICE 

1 hereby certil^ thai I have this dale served by regular U.S. mail, postage prepaid, an original and 

one (1) copy of the foregoing Answer and Affinnative Defen.ses addressed lo: 

Attention: Hearing Docket Clerk, .AGC-430 

Wilbur Wright Building 

Federal Aviation Administration 

800 Independence Avenue. S.W. 

Room 2014 

Washington, D.C. 20591 

I hereby certify that 1 have this date sent via facsimile and first class mail a copy of the foregoing 

Answer and Affirmative Defenses addressed to: 

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 

Dated: October 7, 2011 

Respectfully 

»R&>^ WINTON. ESQ. 

iarion Law Firm 

;earch Coun, Suite 450 

Rockville, MD 20850 

Tel: (301) 294-8550 

Fax:(301)294-2525 

Greg@AviationLawExperts.com 

Counsel for Respondent