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^pp. •ARTMENTOF 

^HANSFORTATiON 

"CUKET OPERATIONS 

Uh4ITED STATES OF AMERICA ur_,,.i!j. o 

DEPARTMENT OF TRANSPORTATION iq,, ISMO-. -^ > , r 

OFFICE OF HEARINGS ^I^JAN.^B M I UO 

WASHINGTON, D.C. 

*•*•*««•«»••*«« • «tt«»«B* 4 **«••*• * tk«A*«A*«HHHt** It « 

In the Matter of Sun Quest Executive * FAA Docket No.: CP08WP0004 

Air Charter, Inc. * DMS No. FAA-2008-O238 

Applicant. * FAA Region: Western-Pacific 

*" Judge: Richard C. Goodwin 

*-*-**-*"»^»****««» * »********««« » <a  «»»»>»**  » i»> 

COMPLAINANT'S REPLY OPPOSING RESPONDENT'S "APPLICATION FOR 

AWARD OF ATTORNEY FEES AND OTHER EXPENSES PURSUANT TO THE 

EQUAL ACCESS TO JUSTICE ACT <EAJA)" 

To: AtJminisTrfltiv«? Law.ludg^ Richard C. Ooodwin and Respondent: 

On December 22, 2011 the Federal Aviation Administration ("FAA"') Regional 

Counsel received Sun Quest Executive Air Charter. Inc.'s (hereinafter. "Sun Quost," 

"Applicant/' or "Respondent") application for an award of aiiomey fees jnd other 

expenses soughi under tJic Equal Access to Justice Act (EAJA). 5 U.S.C. >; 504.' 

Complainant hereby respectrully submits its Reply opposing. Respondenrs 

application. 

PROCEDRUAL HISTORY: 

OD October 17, 2005. the FAA' S Regional Counsel issued its Notice of Froposed 

Civil Penally (NOPCP) in this.matter. That NOPCP included the allegations anti charges 

of \'iolaiions of 14 C.F.R. ^ 135.63(a)(4)(vii). Respondent responded to that >sfo:icc by 

requesting an informal conference, which was held with Respondent and irs counsel on 

Applicam 2^'^,o eiT0Tiec>u5l> cites 14 C.F.R. "§ ?21C.l ex seq.'" as authority for its request. 
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June 7, 2006, Respondent-s counsel and the Regional Counsel were unable co reach a 

mutually accepiable resolution to the matter, and a Final Notice of Proposed Civ'l Penalty 

was issued on February 12, 2008. The factual alJegations and cited regulatory violations 

were the same in the NOPCP and FNOPCP. Respondent requested a hearing on 

Febtaary 25, 2008. The Regional Counsel filed ihe Con'^plaini in this matter on l-^bruary 

27. 2008; the factual allegations and cited re^ijulaiory vinlations in the Complaint were the 

same as in the FNOPCP. 

On MdTch 13, 2008, Respondent moved to dismiss the Complaint as stale and 

moot. Respondent (erroneously) claimed th;il the NOP(T was not issued until February 

of 2008 and cLaimed, therefore, tha^ the factual alIeg,atioDS (of acts \r\ 2005) x'^ere stale. 

Respondent also claimed that the resignation, of Respondent's president, Mark Siniih. 

from the Los Angeles Police Department (LAPD) and the death of Respondent's director 

of operations, Frank K.rat::er in 2007 (the "afitors" cited in the Complaint) served lo 

"'moot the issues" and prejudice Respondent. AL J Goodwin denied that motion on April 

28,2008. 

By N4arch 31. 2008, Complainant had amended ihc- Complaint 10 delete die 

allegations that the failures to record tlie flights by Mr. iOatzer were violations of Section 

135.6,'^(a)(4)(vii). On April 23, 2008, Respondent filed its Answer to the Amended 

Complaint; thai Answer will be discussed "m more detail below. 

In the underlying Amended ComplaJTit. the Administrator contended that Sun 

Quest failed to maintain records in sufficieni detail to determine compliance with; the 

llighi time limitations, pursuant TO the following 4 charges: 

• Charge 1: Respondent's records caiegorically excluded thght time data 

indicating when a flight started and ended within a pilot's duty time or shift, wnich 
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made Sun Quest's record keeping insufficiently detailed to determine Ilighi time 

limitation compliance. 

- Charge 2: Respondent failed to properly record 1.3 hours of tliglu training 

provided to a company piloi by Mark Smith ofSun Quest on January 24, 2005. 

. Charge 3: Respondent failed to properly record a 1,5 hour check ride b;,' Mr. 

Smith given to a company pilot on March 9, 2005. 

< Charge 4; Respondent failed to properly record Mr. Smith's 50.4 hours of flight 

time on 17 dates, during February 2005, ai; a helicopter pilot for LAPD. 

It should be noted that, with respect to Charijc 4, the NOPCP, Final NOPCP, oriijinal 

Complaint and Amended Complaint all contained the allegation, "Pilot time flov/n by Mr. 

Smith for the l.APD constitutes 'other comn^crcial Jlying' and must be tracked by Sun 

Quest." 

ALJ Goodwin set the heaiing in this matter first for June of 2008, ihen for July of 

200S. HoiA^ever, the parties entered into a stipulated motion for continuance, in which 

they stated, "The parlies have determined that they may be able to stipulate to ih-: facts in 

this matter, which would promote judicial economy by requiring this tribunal lo -i.-^.^ess 

only the remaining issues of law in dispute t'etween the parties." A hearing was held on 

January 26, 2009; however, the proceeding was limited to the Parties and the .A.l_ J 

memorializing that the matter could be decided on stipulations and trial briefs. 

Representations by counsel for Respondent al that hearing will be discussed in more 

detail below. 

The parties entered into a number of stipulations that, ultimately, resulted in the 

A y issuing his initial decision without an e\Hdentiarv hearinc The Stipulated Facts 

were tiled by Respondent's counsel on July 3, 2009. Those stipulations will be (lisr.ussed 

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in more detail below. The ALJ ordered trial, briefs, replies thereto, and .supplemental 

briefs, which the Parties submitted. (Respondent's Trial Brief, daied August 7. .^009, 

Rcply Brief, dated August 17, 2009, and Supplemental Brief, dated October 5, 2009; 

Complainant's Trial Brief, dated August 7. 2009, Reply Brief, dated August 17. 2009, 

and Supplemental Brief, dated September 21. 2009.) The subslance of those briits will 

be discussed in more detail below. 

INITIAL DECISION: 

In his Initial Decisiuu, ALJ Goodwin mled ihal Sun Quest violated Cliar/^e? I and 

3. but not 2 or 4. With respect to Charg*t 1, the ALJ i^und tlvAV Respondent's "Log Sheet 

does not record when flight time (as opposed to duty time) begins and ends,'' (l.D- at 3.) 

He, thus, found the violation of Section 135.63(a)(4)(vij). ({.D. at 3.) 

With respect to Charge 2, the January 24. 2005, flight (gaining, the ALJ iDund tfi.'it 

that Mr. Snaitli had not perfonncd oiher commercial flying as thai term is used in ihe 

flight and duty requirements of part 135, (l.D. at 5.) He found that Mr. Smith did not aci 

as a recjuircd crcwmember on that flight, reasoning that: 

.. .Sun Que.it's tlight training record shows that Capiain Smith ser-'cd as check 

airman (Compl. Br,, Exh. C). He did not tly the itircrafr. Since the trainee-pilot 

did not wear a view-limiting device, Smith was never required to. assume any 

responsibilities of a sole pilot. As such, he was not a required crew-member... 

(l.D. fit 5.) 

Except 10 the extent that the ALJ found Mr.' Smith was not PIC (see Stipulated 

Facts N'os. 17 ad 18, reproduced below), his finding of no violation wasr^ot inconsistent 

with the applicable Stipulated ficis, which stated, in total: 

13- The 1.3 hours of tlight training was not recorded on Mr. Smith's Sun 

Quest flight time but was included in his duty time record for January 24. 2005. 

14: The aircraft that was used for the flight training was cenificd for single 

pilot operations. 
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1.5, Mark Smith was on board th(; aircrdfr during the 1.3 hour llighi. Mis 

status, whether as a pilot, crew or otherwise, is an issue of law to bo decided in 

this case. 

16. Whether Mark Smith was a pilot or necessary crew member during the i 3 

hour flight is an issue of law. 

17. The 1.3 hour referred to by tlie AdministraTor [sic] was recorded by Mark 

Smith's Sun Quest duly time record. The 1.3 hours to which the Administrator 

[sic] Tefers were recorded as part of the training record for the pilot in command. 

18. The 1.3 hours to which the Administraior [sic] refers were recorded as pan 

[of| the training record only for the pilot.in command. A legal issue reniiiins as lo 

whether or not it could be recorded as flight time by Mark Smith.. He coviends 

that he was not pilot in command. He also contends that it could not recorded as 

second in command pilot because the airplane is a single pilot airplane. 

(Stipulated Facts at 4-5.) Thus, the ALJ found no violation of Section 135.63(a)(4Kvii) 

for that flight. I mere singly, there was no stipulation—<me way or the other—that Mr. 

Smith was paid for the January 24, 2005, flii;ht. Not-withstanding, the .A.LJ foun^: that Mi. 

Smith was paid for that flight. (ID. at 5.) 

With respect to Charge 3, regarding the March 9. 2005. check ride flight, the ALJ 

found that Mr. Smith had performed oiher commercial flying. (Id.) The AL J found; 

The circumstanres of the March 9 check ride lead to the opposite conclusion. A 

key difference is that Captain Smith gn this flight was required crewmeni>er. He 

was the assigned captain (Compl. Br., Exh. D). /\nothcr critical factor is that 

check rides require the trainee pilot to have vision-reducing devices in place. 

Smith would have had to observe u-aflic while the trainee pilot was "under the 

hood." Smith thus attained the status of a required crewmembcr (Cotnpl. Or., pp. 

S-9). Captam Smith was compensated for serving as a crewmember. Tht cheek 

ride should have been logged as tlight time. 

(Id. At 6.) 

Thus, the AL J "S fmding was not 7ncoasistent with the applicable Stipulated Facts, 

which stated, in total: 

20. Sun Quest's records of pilot time for Mr. Smith only reflected the 1.9 hour 

chaner flight on March 9, 2005. 
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21. Mark Smiih was aboard the aircraft during the 1.5 hours :o which the 

Administrator [sic] refers, giving a check ride. 

22. Mark Smith recorded all duty time and his activities on March 9, 2005, 

including the check ride referred to in Item 21. 

(Stipulated Facts at 5-6. Tints, the ALJ found that Respondent had violated Section 

J 35.63(a)(4)(vii) by not counting, towards flight time limitations, Mr. Smicl":"s giving of a 

check ride as other commercial /lying. Interestingly, there was no stipulation—cme way 

or the other—that Mr. Smitli was paid for the March 9, 2005, flii^jhl. Notwithstanding. 

the .\LJ specifically found that Mr. Smith was paid for that flight. (l.D. at 5 and 6.) 

With respect TO Charge 4, Mr, Smith's flying 17 flights for the LAPD during the 

month of February, 2005. the ALJ found that Mr, Smith's flights in LAPD helicopters 

were not other commercial flying. On thai charge, the .ALJ framed the argunienrs as 

follows; 

Complainant argues that Captain Smith's LAP D flying constituted '"othej 

commercial flying" which should have been recorded by Sun Quest for the 

purpose of calculating his flight time limitations. Smith was a required 

crewTnem.ber and received pa>'ment. Since Respondent did not record Smith's 

LAP D operations: its records were "rleficient," the agency contends. Thi i 

omission constituies another violatioa of § I35.63(a)(4)(\ii) (Compl. Br., p. S>: 

Compl. Reply, p. 2). Respondent counters that Smith's tlying was performed as a 

police officer. The L.APD-owned and -operated heUcopier was properly 

considered a ''public aircraft" exempt trom the ;igency's reach. 

(1,D. at 6.) The Stipulated Facts applicable to Charge 4 were os follows, in total: 

23. Sun Quesu;' flight and duty time records for Mr. Smith did not rellect any 

of its [sic] pilot time for the LAPD. 

24. Mr. Smith's pilot flight time for the L^.P.D. as alleged in the Complaint 

refers to Mr. Smith piloting a Police helicopter owned and operated by th.? Los 

Angeles Police Department. 

25. Legal determination will have to be made as to whether the helicopter in 

question was a "public aircraft" within the meaning of 49 USC 40102(41HC) 

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26. The L,APD had operation control uvar initiating, conducting or terminating 

all nights of its helicopters. 

(Stipulated Facts at 6.) The ALJ then found thai Mr. Smith's LAPD flights wer<; l1ighr.s 

of public aircraft; he also found that the FAA did not have the auiho.rity lo enfor;c a rule 

thai requires an operator to count, lowards part 135 flight time limitation?, fligl^ts of 

public aircraft. (l.D. at 6.) Interestingly, the stipulations on which the ALJ madr these 

findings included no stipulation—one way or the other—that Mr. Smith was paid for the 

LAPD flights. 

Perhaps more interestingly, tlie ALJ concluded that, "All arguments havo been 

considered. Those not expiicitlv addressed in this Initial Decision arc denied as without 

merit...." (l.D. at 7, emphasis added.) 

The .'\LJ reduced the civil penalty from $20,000 to S5,000. Complainam 

appealed the ALJ's decision on Charge 4 (aiid the resultant reduction in the penalty); 

Complainant did not appeal the other aspects of the l.D. Respondent did not appeal any 

aspect of the ID. 

DECISIONMAKER'S DECISION: 

The Administrator, in hi.s capacity as Decisionmaker, permitted the pariicr to brief 

whether the longstanding FAA imeiprctation of of/tet- commercial ;7vm^ had changed or 

should be changed, given statutory changes in the detinition of "public aircrait." See 

FAA Order No. 201 l-l (January 5, 2011). Both panics submitted briefs and replies 

thercito. Complainant asserted that no statutory changes justified a change in th,-

definition of orfur commercial flying. {Sep. discussion beginning at p. 7 of Complainant's 

Supplemental Brief.) In fact. Complainant recognized that a change in the definition 

could be inappropriate for establishment by adjudication and could require 

noticc-and-comracnt rulemaking, (id, at 14-T6.) Complainant, thus, continued tn a.ssert 

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that the interpretation oioiJip.r commercialjlyitigin^y include flying in a public incraf: if 

the pilot was paid for the flying. (Complainant's Appeal Brief at 23.) 

In his Decision and Order served November 22, 2011, the FAA Administrator 

affirmed the .ALJ'S decision In Sun Quest's favor regarding the LAPD flights, "but not 

fur the reasons cited by the ALJ." (Order No. 2011-13 at 3.) The Decisionraaker decided 

that there was no reason to disturb the FAA s longstanding interpretation oforhir 

commerciaiflying: "any nonmilitary flying as a required crewmember. other than in air 

transporration^ for which the crewmember i,^ paid for his or her services." (Id. ai 6-7.) 

The Decisiomnaker also held ihai the FA.A. was correct in arguing tliai it has juri'jdiction 

over some public aircraft operations. (Id. at 6.) The Decisionmaker stated: 

., -Sections 135.63(a)(4)(vii) and 135.267(b) and (c)(2) do iioi regulate pubiic 

aircraft operations, but instead regulate civil aircraft operations. The F.A.^'s case 

was against Sun Qxiest. a civil operator. Hence, the FAA was not seekinj^ to 

regulate public aircraft or an operator of public aircraft. Consequently, there is no 

need to address the issue whether Sun Quest pn^ved that Smith's flights for the 

LAP D constituted public aircraft flights." (Order No. 2011-13 at 6, fn. 1 0, 

emphasis in original.) 

Instead, the Decisionmaker found that the record did not contain 3 siipulLvtiou or 

admission that Mr. Smitli was compensated for his work with the LAP D (Id. ai 7.) 

Thus, the Decisionmaker held that Complainant "did not bear its burden of proving 

compensation to the pilot, an element another commercial/lying.'' (Id. at 8.) The 

Decisionmaker took judicial notice of a page from the LAP D website 

(wwu.lapdonline.of;^), which indicated that the LAP D does, in fact, use volunteer police 

officers.. (Order No. 2011-13 at 8.) 

RESPONDENT'S EAJA APPLICATION: 

Applicant claims that it is entiiJed to fees and expenses under the HAJA. i?ascd 

upon ihe iudiciaJ disposition of clanns 1, 2, ;ind 4, as.described above. The EAJA statute 
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at 5 U.S.C. j; 504 and the FAA's rules at 14 CFR part 14. are clear that only ^preraHing 

party may receive an award for fees and expenses incuired in eormection with the 

proceeding. However, the EA,TA and the rules do not award fees or expenses if :he 

position of the agency over which the applicant has prevailed was snbstaritially j'usiified, 

ot'yf special circumsionces would make the award sought unjusi. {See 14 CFR i 14.04(a) 

and (b),) 

Applicant appears to claim that it wpjs the prevailing party as follows: 

• Charge 1; Applicant appears lo claim that it was only in ''technical 

non-compliance'' with Section 135.63(a)(4)cvii) and that F.AA inspectors had 

previously "accepted" its form for logging pilot flight time. Thus, it claiJns that 

these were mitigating factors. 

• , Charge 2: Applicant appears to claim that the ALJ found that the Januar/ 24, 

2005, training flight could not be coi^sidered other commercial flyirj^. 

• Charge 3: It is not apparent from the. application why Applicant bchcves it 

prevailed. 

• Charge A: Applicant appears to claim that the ALJ's decision wiili rcspe^-.t to Mr. 

Smith flying public aircraft operations, and the resultant legal conclusion, weie 

''affirmed" by the Decisionmaker. It also appears to claim that Complainant did 

not establish a basic element ofciher cotnmercial flying, namely that Mr. Smith 

wiis paid for his L.A.P.D. flying. 

Applicant did not submit an accounting of the claimed 525,200.53 in fees and expenses: 

it did state that it would present a detailed exhibit at a hearing of the application •?r 

sooner.-
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For the reasons discussed below, Complainant submits that Appliean: w,-.^ not a 

prevailing party, that Complainant's positions were substantially justified, and thai ihere 

are special circumstances that woidd make em award to Applicant unjust. Compiainanl 

also submits that Applicant's application is defective. 

I. ARGUMENT: 

A. Applicant Was Not A "Frevailing Party" Regarding Charge 1. 

As to Charge 1, the ALJ found Applicant violated 14 CFR ^135 63(a)(4 )(vii]: 

Compiainanl has shown that Sim Quest'.s records fur its pilots do not 

provide the iuformatioiv necessary to detitmine oompliance with the FAR' S 

limitation on flight time. (l.D. at 3.) 

Accordingly, the ALJ assessed a penalty against Applicant. In doing so, the AL.'. cited 

the safety implications of not having a system of flight and duty time records from which 

the FAA could monitor compliance; the ALJ also recognized the factors cited as 

mitigation by Applicant. (LD. at 7.) It is not apparent that the fmdings of the AlJ. which 

Applicant did not appeal, make Applicant a prevailing party on this charge. Applicant's 

violation was found to have "unacccptably increased the risk that pilots would operate 

aircraft without sufficient rest." (Id.) Complainant submits that Applicant is nor a 

"prevailing party" and is not entitled to attorney fees or expenses under EAJ A for Charge 

1. 

B. The Agency Was Substantially Justified In Pursuing Action Und«r 

Charge 2, 1 here are special circumstances that would make an r..AJ.A 

award to Applicant for the flmjing on Charge 2 unjust. 

Section 504 of the EAJA and pan 14 generally pcovide that a prevailing pany is 

entitled to fees and expenses unless the adjudicative officer finds that the positior of rhe 

agency was "substantially justified."' In turn, the Supreme Court has clariflcd that an 

^ 5 U.S.C 5504(aVJ), l-l CFR ^^ 14.04. 

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action is "substantially justified" when an ai^ency had a "reasonable basis fof 

proceeding/' that is. the basis ''must bejustified to a degree that would saiisi}' a 

reasonable person."'* 

The detennination of "substantial iuiUincation" encompasses a re^^ew• of the 

entire proceeding, h is decided "on the basis of the administrative rpcord. as a v^hole, 

which is made in the adversary adiudicaiion ...'"* An agency's failure to prevail docs not 

raisL' a. presumption of a lack of substantial justification. It must not be assumed that the 

government's position was not substantially justified simply because it lost on tlio merits "' 

Kor must the agency demonstrate that it had a substantial likcliliood of prevailinu to 

prove that its litigation position was substantially justified,^ 

Courts have noted that, where the underlying decision against an Agency turned 

on an interpretation of a regulation, ''[f]or the agency to prevail in fa subsequent li.AJA 

application,] it must show a reasonable basis for the legal theory propounded." By 

contrast, the government cannot show substantial justification if its legal position "clearly 

offend[ed] established prcccdem.'''* 

1. The FAA Had A Reasonable Basis For Propounding That 

Applicant Had Flowa As PIC As Alleged Under Charge 2. 

Regarding Charge 2, the Agency asserted that Sun Quest president and chief pilot 

Mark Smith failed to comply with flight duty time limitations by providing flight training 

On January 24, 2005, but did not record the time as "flight time" or "other commercial 

' See Piercr. ^. Underwood. 487 U.S. 552, i6i (1988) and MCFR. \4.04(a): Neel v. Administraior. NTSB 

Order NO. EA-45f7. D. 5 r,. 6(1996). 

•'5U.5.C. g504i:a)(n 

•'• Morgan v. Pcn>-. 142 F.3d 670, 685 f3rd Cir. I99S): Mictiael Edvi'ard Wendt. KAA Order 93-9 (March 25. 

1993). p. 3. 

^Application of recurrent training CcniL-r inc.. 2011 V/L 30280. pp.l -2, citing ivtUit^al Ed^-ard \\^en4l. 

FAA Order 93-9. 

' .AppHi-'atiQn.Of Recurrent Training Center Inc. ai2.. i:i[ing V3II6V air services ln.g.. FAA orJei runihcr 

95-27 (December 19. 199,'>), pet. for rcconsid. denied. FAA order numbei 96-15 (May "J. 1996V -Smith V. 

NaiionalJIVansPortation Safety Board. 992 F.2d 349 (arli Cir. 1993} 

"See id. 

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flying" for purposes of determining flight time limitation under Section 135.65. 

SpccificaUy, the agency argued thai because Sun Quest's flight training record li>led ihc 

trainee as "Second in Command"" (see Complainant's Trial Brief, E)chibit C) and Captain 

Smith a5 the •"check airman" (Id.). Captain Smith had to have been PIC. and he wa^ . 

required to log such PIC time as flight time. (See Stipulated Facts, Number 13-' 8.) 

SpeeifieaJIy: 

17. The 1.3 hour referred to by the Administrator fsic] was recorded by Mark 

Smith's Sun Quest duw time record. The 1.3 hours to which the .^dministrato^ 

[sicj refers were recorded as part of the training record for the nilol in command. 

18. The 1.3 hours to which the Administi-ator [sic] refers were recorded as part 

[ofj the training record otily for the pilot in command. .A. legal issue reriiains as to 

whether or not it couid be recorded as flight time by Mark Smith. He cortcnds 

that he was not pilot in command. He also contends that it could noi recorded as 

second in command pilot because the airplane is a single pilot airplane. 

(Emphasis added.) 

The AL J rejected this argument, concludmg thaL "While the flight tniimng record 

lists the trainee as "SIC (second-in-command). Smith did not thereby assume the role of 

PIC." But the agency -was substantially jusiiGed; it had a reasonable basi.s for proceeding. 

Someone has to be PIC; and the records li.'ited the only other pilot as SIC. AppH^^ani 

stipulated that its o-wii records refer TO Smith as being PIC on that training flight. Thus, 

the Agency reasonably concluded ihat Captain Smith had been PIC. 

2. There are special circumstances thiit would make an award to 

the. Applicant for the findiag on Charge 2 unjust. 

AS described above. Applicant's Training Record stated that the trainee \\as SIC; 

Applicant's records also appeared to establisli that Mr. Smith was PIC. The ALJ clearly 

stated, in his Initial Decision, that Applicant's training record contained wrong 

information, i.e., tiiat Applicant's recordkeeping incorrectly slated ihat the trainee was 

SIC when he was PIC. Under the circumstances that the Applicant's own iceord^ 

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established tlic iciiionablc cvidenliary basis for Charge 2, it would be unjust to a'.vard 

fees and expenses under EAJA based on a finding, essentially, that the Applicam may 

benefit by faulty recordkeeping. The Agency should not be faulted for this: Applic.^sni's 

claim for fees and expenses related to Charge 2 sHould he denied. 

B. Applicant was not a prevailia^r party with respect to Charge 3, 

In its application. Applicant does not articulate why it believes IT is a prc\ ailing 

pany. Ir merely describes the ALJ's finding of violation. (Application at 3.) Applicant 

did not appeal thai finding, and did not prevail with respect to Charge 3. 

C. The FAA had a reasonable basis for propounding that Sniith'5 

LAPD helicopter flights as PIC were *'other commercial flying/' which Sun 

Quest was obligated to record, a:) alleged in Charge 4. There are 

circumstances that would make an award to the Applicant for th« tlndiDg 

on Charge 4 unjust. 

Courts have noted that, even if the govL'rruiienl's legal argument is ullimai.ely 

rejected, it also may meet the "substantial justification" test if'"there i:s a genuine 

dispute,"'^ or of it can show that the "question involved was close or unsettled.""'^ 

Here, there were no cases, inieipreiaiions, or opinions addressing the specific 

question of whether police helicopter flight constiiuted 'other commercial flying." or was 

an ex^rmpt public aircraft. Sun Quest's own counsel acknowledged this at the iniiial 

hearing: 

[Tjhe "'gut issue" in this case is, I think, there's never been a case deciding; 

whether the flight by a police officer in a hehcopter constimtes flying 

within the meaning of section 135.'"' 

Later, he stated: 

'' Fierce ^ S6$. 

"^ Application QT Recurrent TT^ining Centar Inc. at 2.. cfrina Edge v. Schwejker. Sl4 F.2d 125, l.fSC.Vd 

Cir. I9ft7) 

" Tranfcript orH«i:aring Before Administrative Law .Judge Richard C. Ooodwin, dated January It:. 2009. 

page 8. 

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[T]here are no cases discussing whether or not police officer flying falls 

within the other commercial flying rtiles of the federal aviation 

regulations,"''' 

The issue's unsettled posture prompted the parties to develop a stipulated statcmenl oi~ 

facts, and try by ^^-ritien brief the remaining issues of law. 

On appeal, the Administrator ordered the parlies to further brief the unsetiiled 

issue: "what should now be the definition of'other commercial flying"''"^ The Order 

noted that ^'neitlier the statute nor the regulations define the term 'other commeiciij! 

flying.'" and that legal interpretations issued by the regulation.s divi.sion of the ofnce of 

the FAA chief counsel did not "directly address the circumstances of the insiani t:asc.~''^ 

Finally, the Order requested the parties address ""the original inlerpre[aiion seitint: forth 

the defmition of'other commercial flying/ which is quire old and on which the other 

interpretations were based, siill applies, given changes in the statute and regulations."" 

In sum, the recoid shows that specific mailer was Linsettied and the Agency^- while 

ultimately unsuccessful— was substantially justified in pursuing it. 

L Compiainanl h^td a reasonan>le basis for propounding that Smith':^ 

LAPD helicopter flights as JPIC Here '*other commercial flyinj;," 

which Sun Quest wras obligHtcd to record, a<^ alleged in Charge 4. 

Complainant had a reasonable basis in fact and in law Tor propounding ihai 

Smith's LAP D helicopter flights as PIC were; other commercial/lyi^ig. The reasr.nable 

basis in law was borne out by the Decisionmaker's order. ("Consequently, ihere is no 

need lo address the issue whether Sun Quest proved that Smith's flights for the L \r D 

constituted pubiic aircraft flights." (Order No. 2011-13 at 6, fo. 10.)) 

'-Id., page 12. 

'-^ See FA A Ord^rNo. 201 1-1, Docket No. CP08WP00004; FDMS No. rAA-::00(!-02.1(l Requesting 

Fufihtr Bricllng dawd January' S. 3010. page 2. 

'"Id. 

'-' Id. 

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'l"hc reasonable basis in fact is addressed by review of the whole record. Contrary 

10 the ALJ'SLD: , The Deci.sionmaker concluded that the ^"F.'^A simply did not bear its 

burden of proving compensation to the pilot, an element of'other commercial Hying'." 

(Order No. 2011 -13 at 8.) TTie Decisionmaker recognized that an admission or 

stipulation ihnt the LAP D paid Smith would suffice. (Id. at 7.) 

Compiainanl notes ihai there was no evidentiary hearing in this matter. The 

Stipulated Facts were intended to serve as aji integral part of the record. Becaus<: 

Applicant did not raise any issue of LAP D compensation to Smith until well after the 

Stipulated facts were finalized, the Decisionmaker'seonclusion that Complainajit 'did 

not bear its burden of proving compensation to the pilot" should not be the basis to 

conclude that the Complainant was not subsrantially jutitificd in fact to pursue Charge 4. 

Comploinatit submits the following. 

First, as noted above. Complainant's submissions, from the 2005 NOPCF. 

through the 2008 Final NOPCP. and the 200? Complaint and Amended Complainr stated: 

Sun Quest's llight and duly time rcc<irds for Mr. Smith did not retVct any of his 

pilot llight time for the LAPD . 

Pilot flight time flo^^Ti by Mr. Smith for the LAP D constitutes "oilier commercial 

flying" and must be tracked by Sun Quest. 

Because the FAA' S longstanding interpretation of other commercial flying inducted the 

element thai the pilot is paid for his or her services, Applicant was on notice that the 

payment of Mr. Smith by the LAPD could be an issue when it received the NOPCP in 

2005. However, at no time in responding to the 2005 NOPCP. did .Applicant raise any 

question whether there was evidence that the LAP D paid Smith for the alleged flights. 

Second, Applicant's responses to the above-described subniissions did net raise 

any question whether there was evidence that the LAPD paid Smith. In .Applicant's 

15 
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01/19/2012 13:20 ¥flX 3107256916 .4WP-7 @0l7 

Motion to Dismiss, filed in 2008, Applicant could have raised thai issue. It did not. even 

though, as recognized in the FAA's longstanding interpretation of other commercial 

flying, establishing that the pilot was not paid would resolve that a.'^pect of ihc Complaini. 

In fact. Applicant only raised Uic argument that Smith's LAPD flights were public 

aircraft flights and that the FAA did not havt the authority to enforce a rule to compel a 

part 135 to log its pilots' public aircraft tlight^. 

Similarly, in its Answer to the 2008 .^mended Complaini, Applicant stated the 

following with respect to the first allegation quoted above; 

Admit Mark Smith" s flights for the LAPD were all in Public Aircraft within the 

meaning of 49 USC, Section 40102(41 )(e) [sic]. Flights in an L.AJ'D aircraft were 

no different than if he had flown a "Warthog airplane for the Air Force as -o^n of 

the National Guard. Neither a Warthog nor an LAPD aircraft is a private aircriift. 

Moreover, Mark Smith's flights m L.\PD helicopters were specifically approved 

by all of the company's prior Principal Operations Inspectors. Indeed, at least one 

of Mr. Smith's Principal Operations inspectors advised Mr Smith that hi:i Hying 

of an LAP D helicopter was not even a commerciaJ flight; It was private tlight in 

the same manner as if he was driving a patrol cai."' 

(.Answer lo Amended Complaint at 3-4.) Applicant then stated Ihe following with respect 

to the second allegation quoted above: 

Deny. The government's position on tliis issue appears the same as it was in 1966 

when the federal courts ruled against it. It is con&ary to the express definition of 

49 USC, Section 40l02(aX41)CC). 

(Answer to Amended Complaini at 4.) 

The above from Applicant's Answer reflected its dcfense-'-in totaJ--to thc: 

allegation that Smith's LAP D flights constituted other commercial /lying. Applii-inl was 

making a purely legal argument that the F.A<^. did not have statutory' authority to compel a 

part 135 operator to log public aircraft flights: by its pilots. 

'•* Wc not*.- thui ont- uyuld construe Applicant's alluiicns Lo National Guard flights in a Warthog a.'i an 

admission thai Smith u-ai paid by the LAPD. it unduly stretches the imaginmion to assen that zmy National 

Guard pilot could be issigncd xo My a Wdrthog without receiving hazardous duly pay. in addition lo thuii 

usual Guard pav. 

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01/19/2012 13:20 F.\I 3107256816 .\Wp-7 rglOlS 

Third, in the hearing held on January 26, 2009, counsel for Applicant did not even 

hint that Applicant disputed whether the LAPD paid Smith for those flights. For 

example, counsel for Applicant specifically recogni7,td that "the gut issue''' with -cspcct 

10 Smith's LAP D flights was a legal issue: whether the flight by a police officer .-n a 

helicopter constitutes flying within the meaning of the fligln and dur>' requiTtLinenis in 

part 136. (January 26;: 2009. Hearing Transcript at 7-8.) Counsel for Applicant 

specifically recognized that the detinition of other commercial /lying included ih't 

element of payment to the pilot. (Tr. at 9, 1S.) Even though the transcript clearly shows 

thai counsel for Applicant was given the opportunity to raise ail factual and legal U5\ies 

still in dispute (see, e.g., Tr. At 29-31, 40, 43), he never attempted to represent lo the AL.I 

that ihere was a question about Smith receiving payment from the l.AJ^D. Similerly, 

counsel for Applicant did not attempt to represent that Complainant was changing the 

definition of other commercial/lying lo eliminate the element of payment to the pilot. 

Fourth, the Stipulated Facts, filed on .luly 8, 2009, similarly did not reflect that 

there was any dispute whether the LAPD paid Smith for those flights. In fact, as 

described above under Initial Decision, Stipulated Facts Nos. 23-26 reflected Applicant's 

now well-worn legal argument that the F.AA did not have ihe statutory authority lo 

compel a part 135 operator to log public aircraft flights by its pilots. .Again. Applicant's 

posture was that the lodging of Smith's LAP D flights were beyond the reach of the 

FA_A.'S authority; its posture had nothing to do with nny question whether Smith v-as paid 

for those flights. 

It should be noted that, during the January 26 hearing, the AlJ instructed ihe 

Parties to also identify the issues on which thii Panics could not agree and, therefore, 

could not reach a stipulation. (Tr. At 36.) It is signifrcar.t that the Stipulated Facts did 

I? 
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01/19/2012 13:20 F.OL 3107256816 AWP-7 EgOlO 

not identify- pavonem lo Smith by the L.APD as an issue upon which the Panies c->uld not 

agree. 

Fifth, the ALJ's order for the Parties to submit trial briefs for his consideration 

similarly gave no hint that Applicant disputed whether the LAPD pnid Smith 

Applicanl's Trial Brief argument regarding Smith's LAP D flights is reproduced---in its 

entirety—-as follows: 

Iv has been stipulated that the helicopter which Mark Smith flew for the L..^.P.D. 

was a "public aircraft."'^ The L.A.P.D. had operational control over initiating, 

conducting or terminating all flights in iLs helicopters. Except for obvioui 

necessities such as air traffic separation, the F.A.A. has no jurisdiction over the 

operation, maintenance, use or control of public aircraft. Indeed, such aiicraft arc 

commonly acquired form the militar' and do not even hold an airworthiness 

certificate. 

(Respondent's Trial Brief at 4.) There was no discussion of the longstanding defmition 

of other commercial flyings other than Applicant's restating that the Complaint contended 

that Smith's LAPD flying was within the sc<ipe of the detinition. Certainly,.then; was no 

accusation that Compiainanl was aTcempiing lo eliminate from that definition the element 

of pav-mcnt to the pilot. 

It was not until August 17, 2009—nearly 6 weeks after the Stipulated Fact,*; were 

finalized, when Applicant submitted its brief in reply to Compiamant's Trial Brief—that 

Applicant even tirsl hints at any dispute whether the LAPD paid Smith for his flying. 

(Respondent's Trial Reply Brief at 9.) This hint was a suigle sentence sandwiched within 

a lengthy argument that Smith's LAPD flights were flights of public aircraft, thai tlie 

FAA has no statutory authority to regulate public aircraft, that the LAPD helicopters were 

not used for "commercial purposes'" or transportafion of passengers, and thai 

Complainant's position failed lo difterentiaie between fligjii/duty time assigned ty the 

'^ This is especially significant when one also notes thiat the Stipulated Facts contained two issue'- on whirh 

tht Panict "agreed 10 disagree.•• 5^^ Stipulated Facts, Nos. IS and 25. 

" li was nor so ii^ipiijated. See Sripulaccd Facts, p. 6. No. 25. 

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01/19/201 2 l.?:20 FAX 3107256516 .\.Vi?-7 ©02 0 

certificate holder and time that the pilot independently '"does." (Respondent's R'^ply 

Brief at 7-11.) Ther« was little or no discusnonoflhe longstanding definition oVothar 

commercial/lying, and certainly no accusation that Complainant was nnempting to 

eliminate horn that defmition the element of payment to the pilot. 

Sixth, it would be speculation to conclude that there was no basis for the ^LJ's 

January 26, 2010, Initial Decision that the L.^XPD paid Smith. If the ALJ even suspected 

that the issue of payment to Smith was in doubt, he would not have issued a decision in 

that regard. He would have required tlie Parties to clarify the record before issuing his 

decision, e.g., by scheduling an evidentiary hearing. Based on the representations by 

Applicant —or lack thereof—the AL.I reasonably concluded that there was no dispute on 

thai issue. 

Funhemiore. it is telling that the ALJ, in his Initial Decision, slated thai *"A.!I 

arguments have been considered. Those nol explicitly addressed in tliis Initial D-eision 

are denied as without merit." (LD. at 7.) Complainant submits that the .^LJ considered 

Applicant's ^aigument" that "there is not any evidence that Mr. Smith was paid ibr the 

flight." (Respondent's Trial Reply Brief at 9.) Based on the representations by 

Applicant—or lack ihereof—tlie ALJ reasonably found .Applicant's argument to not have 

nncrit. 

Seventh, il should be noted thai, had rhe Parties been required to clarif>' the issue 

of LAP D payment to Smith, Complaicant wcmld have oiTered documentary "evidence 

that Mr. Smith was paid for the [L.A.PD] fli6ht[s].'" In fact, that documentary evidence 

was provided by Applicant—in 2005. In resjwnse to a meeting with the FAA during the 

investigation of the mailers eventually alleged in the Complaint, Applicant sent a Icncr on 

its own lertcriicad, dated June 6, 2005, to the Van Nuys, CA, Fiiaht Standard Disirici 

19 
01/23/201 2 13:43 FAX 2024935142 FAA ^ DMS @]02l/02B 

Ji/ia/iui. ; iJ::; u fAA Jluvi5b8i y AlVP-7 (2]0->l 

Office. The Icilcr was signed by Mark Smith. A copy of the letter, from the YAiCs 

enforcement investigative report, is attached as E.\hibit A. 

The letter specifically states that LAPD "[pjilots feceive compensation as police 

officers." (F.xhibil A, Paragraph III.) The letter undermines Applicant's fisscrtion in 

20Uy that "there is not any evidence that Mr. Smith was being paid for ihe flight." The 

letter also undemiines Applicant's speculation, in replying to Complainant's Trial Brief 

and in replying co Complainant's appeal to tlie Decisionmaker Thai Smith could have 

been acting as a volunteer. (Respondent's Reply Brief, served Augu'it 17.. 2009, at 9; 

Respondent's Reply Brief, served January 5, 201 l.a[4.)'^ 

2. The above circumstances make an award to the Applicant for the 

finding on Charge 4 clearly unjust. 

In summary. Applicant did not raise iiny issue of LAPD payment to Smith until 

Aug[j,<;i of 2009. That was years after the NOPCP in this matter weis issued and, moie 

importantly, weeks after the Stipulated Facts were finalized. Applicam knew of rhe 

FAA's longstanding interpreiation of other commercial /lying; Applicant knew that 

Complainant was nol deviating from it; in preliminary proceedings. Applicant ditl not 

raise the issue of payment to Smith; after tiling of the Complaints. Applicant did noi raise 

the issue of payment to Smith in its Answer or in its Motion to Dismiss; the ALJ then 

insttucted Applicant and Complainam to identify issues on which the Pnitie? disagi eed, 

and the Stipulated Facts did not reflect any disagreement on the issue of paymem to 

Smith; rhe .ALJ reasonably understood—based on Applicant's representations (or lack 

thtjreof)—that there was no issue regarding payment to Smith and ruled accordingly in 

his Initial Decision; both before and after the Initial Decision, Applicant continued to 

Indeed, it is qui:c possible that, had there been on evidentiary hearing in this niaaer. Applicani \isc\i 

would have offered the June 6, 2005, leucr. In its earlier submissions. Applicam attempted to ar^ue 

(somewhat abstructly) thai Smiih was paid for being n police olTicer. no[ for being apilor. Mr. Snith 

exprvss<js Thar argument in the letter. 

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01/19/201 2 10:2 1 FA.t 3107256816 AWP-7 21022 

focus its defense on the areumenlthai enforcement of Section 135.63(a)(4)(vii) rbrthe 

L.API) flights was beyond the FA.A's authority; Applic^mt was aware ihat. in 2005. it 

provided a letter lo the FA A admitting that the LAPD had paid Smith; that letter clearly 

was ''evidence that Mr. Smith was paid" (and was not a volunteer), notwithstanding 

Applicant's later assertions to the contrary. 

Whether the above was due to Applicant's error or due to its litigation "'sirategy" 

is not dctcrminaiive; an award lo Applicant for fees and expenses related :o Charge 4 

under the above circumstances would be clearly unjust. 

D. Sun Quest's EAJ A Application i» defective because it fails to comply 

with 14 CFR part ]i . 

Pajt 14 of the CFR implements the F.AA's EAJ A requirements. Section 14.11 

requires an applicani to include with the application a detailed exhibit showing the net 

worth of the applicant and any affiliates whtn the proceeding was initiated. (14 ZVR 

§ 14.11(a).) Section 14.12 requires an applicant to include: 

full documgniation of the fees and expenses, including the cost of any study. 

analysis, engineering rcpon, test, project or similar matter, for which an .-iward is 

sought. A separate itemized statement shall be submitted for each profes.sional 

firm or mdividual whose services are covered by the applic^on, showin.u the 

hours speul in connection with the proceedings by each individual, a description 

of the specific services pwrfomicd, the rate at which each fee has been computed, 

any expenses for which reimbursement is soughi, the total amount claimed, and 

the total amount paid or payable by the applicant or by any other person or 

entity for the services provided. 

(14 CFR § 14.12, emphasis added.) 

The application in this mailer does nol include any of the above. Accordingly, 

Sun Quest's EAJ A application here is detective and should be denied. 

::i 
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IL CONCLLfSrON; 

Regarding Charge 1, Applicant was not a prevailing party: the AL.I found that Sun 

Qucsi had violated the regulation charged. The fact thai the AL J may IIQN-C mitigated the 

civil penalt>' amoiuit does not mean thai Applicant is a prevailing party under EA.IA. 

Regarding Charge 2, Complamant was substancialiy justified in fact and in law in 

pursuing this charge. It would be imjust for .applicant to be awarded fees or e;^p<:nses 

related to this charge, inasmuch as .Applicani's own records provided the substantial 

evidentiary iustificntion tor the charge. 

Regarding Charge 3. Applicam has nol articulated even an unconvincing reason 

iha; it could be considered a prevailing party. Thus, no award under the EAJA is 

justified. 

Regarding Charge 4, Complainant w£is substantially justified in fact and in law in 

pursuing this charge. The Amended Complaint (and all other preceding agency 

enforcement documents) clearly articulated that Smitli's LAPD flying constituted o/her 

commercial /lying. Complainant, in all brief; and other submissions, clearly stated that it 

was applying it:i longstanding interpretation that, inter alia, the pilot would have -.o be 

paid (or flying for il to constitute other commercial /lying. Applicani did not rais-r an 

issue of evidence of Smith being paid until months (in some cases years) after the 

NOPCP, Final NOPCP. Complaints, its own Motion to Dismiss, and its o^vn Ans A'er 

were filed. More importanily, Applicant did not raise an issue of Smith being paid until 

weeks after the Stipulated Facts were finalized, even though the ALJ instructed \ht 

Panitis to identify unresoWed issues in the Stipulated Facts. The ALJ found in hi.-^ Initial 

Decision thai Smith was paid for the LAPD flights; he made this finding because he 
01/23/2012 13:44 FAX 2024935142 FAA - QMS ia024/028 

01/19/2012 13-.21 FAl 3107256816 A'fl?-! Soj-l 

reasonably believed—based in large part on .Applicant's posturing—that there wt•.:^ no 

triable issue of tact in that regard. In 2005, Applicant itself provided documentary 

evidence to the F.^A that the L.APD paid Smith; in August of 2009^ Applicani argued thai 

"'there is not any evidence that Mr. Smith was being paid...." All the above also describe 

the special circumstances under which it would be unjust to award lees and expenses. 

That Applicant was aware of, and even provided, documentation of LAPD's payment to 

Smith only emphasizes how unjust an award would be. 

Finally, tlie application is defective, as measured against the FA.A-'s tiAJ.-^. 

regulafions. It does not include an e^Jiibit of Applicant'.s net worth in any detail, and it 

does not include full documentation of fees and expenses sought. 

Accordingly, Sun Quest's "Application For Award Of Attorney Fees And Other 

Expenses Pursuant To The Equal Access To Justice Act (E.AJA)' ' should be DENIED. 

Rcspectfijlly submitted, 

Naomi Tsuda 

Regional Counsel 

Christopher 1. Merrill, Attorney 

Carex^W. TcrasaEi, Deputy Regional Counsel 

Federal Aviation Administration 

Western-Pacific Region 

La«.Tndale, California 

Dated: January (9.2012 

7 s 
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01/19/2012 13:21 FA.X 0107256816 .WP-7 [2)025 

CoMf^LAiN^NJ Is 

SUN QUES T ^^ ^ ^ 

EzocuMv e Ai r Cnarte r 

June 6,2005 

Insp. DcMariini 

Van Nuys F.S.D.O. 

16501 Sherman Way 

Van Nuys Ca. 91406 

This Ictier is in response to our meeting on June 1, regarding the Icuer of invcstigaiion 

sent 3/31/05. In your letter you allege that on .i continuing basis 1 have failed to record 

the commercial tlight tune while acting as a helicopter pilot for the Los Angeles Police 

Department (LAPD). I submit that my flight for the LAPD is not cotnniercial in nauire 

and that I have uot recorded the flight time as eonunercial flight for ihe following 

reasons. 

Nature of flight for the LAPD. 

The flighu conducted for LAPD are a direct extension of law enforcement ;£round 

operations LE- aerial police patrol and .-surveillance. No passengers are carried for 

compensation or hire. The aircraft is operated to monitor criminal activity en the 

ground and support other law enforcement related requests where an airborne 

observation platform is needed. These operations are public service in nature. 

II Nature of erew^ 

All pilots for the LAPD are swom police officers. Operators of LAPD aircratt 

must have a minimiun oj'5 years police experience before they can even apply to 

operate police aircraft. Pilots are select^ tor their knowledge and experience as 

police officers not on flight experience. In fact, several of its pilots had no license 

prior to selection to the pilot position by LAPD. 

UI Nature of compensation 

Pilots receive compensation as police officers. Their job is not dependant on their 

ability to fly. If they can no longer fly or the dcpartrricnt chooses to eliminate 

aircraft, they are still employed as police officers and will continue lo work for 

the department in another capacity. 

7436 Hayvenhyrst Avenue. Van Nuys, CA 91406 

Phone (818) 778-6520 Fax (818) 778-6526 ToU Free (800) 529-7595 

www.sunquestexec.coin 
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01/19/201 2 13:2 1 FAX 3107256816 AlVP-7 :2i026 

IV FAA Opinion 

In 1998 Sun Quest's Principal Operations Inspector David Volker (Van Nuys 

FSDO) advised that my flying for the police dcpariinenl was not commercial 

flight for the reasons.listed above, arid did nol require that I list thai flying as 

coirmercial flight. Each additional Principal Operations Inspector assigned to Sun 

Quest, has been aware of my occupation as a police officer and the flying I do for 

the department. Not recording my police flight time was never questioned 

although we have undergone annual base inspections and review of company 

documentation 

As Chief Pilot I am very aware of the F.AA'^ concern regarding duty times and c-ew rest 

forFARPart 135 Carriers. I at no lime have . jver allowed my fliglits for the police 

department to adversely impact my duties for Sim Quest under FAR Part 135. 

Thank You 

;:L'li\ .; , .it; 
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01/19/2012 13:21 FAT J107256816 AW'P-7 0027 

Certificate of Service 

1 hereby certify that on this date 1 have sent by facsimile and placed in the United 

States mail, postage prepaid, certified mail - reium receipt requested, ihe executed original of 

the Complainant's Reply Opposing Respondent's "Application for Award of Aucmey Fees 

and Other Expenses Pursuant to the Equal Access lo Justice Act (EAJA)", addressed as 

follows: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Atm: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

Facsimile: (202"» 493-5142 

and a copy to; 

Honorable Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Depanmeut of Transportation 

1200 New Jersey Avenue, S.E. 

East Bldg., Ground Floor, Room El2-320 

Washington, D.C. 20590 

Fax: 202-366-7536 

Arthur Wasserman, Esq. 

Law Offices oi Wasserman & Miller 

16380 Roscoc Blvd., Stc. 120 

Van Nuys. CA 91406 

(808) 895-0675 Facsimile 

Dated: JAN 1 9 2012 

Jeff Kamber| 

Legal Technician 

Office of tlie Regional Counsel 

Federal Aviation Administration 

Western-Pacific Region 

Lawndale, California