# RECEIVED U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION 

## MAY 18 2015 

## HEARING DOCKET
FEDERAL AVIATION ADMINISTRATION COMPLAINANT


## v. DOCKET NO. FAA-2014-0866 CASE NO. 2013S0950114 MISSISSIPPI AIR EXPRESS, LLC RESPONDENT RESPONDENT'S REBUTTAL TO ADMINISTRATOR'S SUPPLEMENTAL RESPONSE TO RESPONDENT'S MOTION TO DISMISS Respondent, files this its Rebuttal to Administrator's Supplemental Response to Respondent'sMotionto Dismiss, and in supportthereof, would show unto the Courtthe following: FIRST REBUTTAL Administrator has wholeheartedly failed to provide this tribunal with any new evidence detailing why it failed to file its action and notice within the applicable statute of!imitations. The facts initiallypresentedwere ambiguous andcontainednumerouserrors andreferencesto allegations that were patently false. Administrator, instead ofmeeting its burden ofproof, attempts to blame Respondent for its own delays.' A Notice was sent to Respondent dated March26, 2014. On April 25, 2014, counsel for Respondent forwarded arequestto the Administratorrequesting an extension oftime to review the matter and respond to the Notice. Administrator, in a "last ditch" effort to

cover its own error, blames this request as the reason for the delay in bringing its action. This is absolutely false. Not onlywas this action barred by the 2-year statute oflimitations, theNotice was sent out oftime as well. Itis inconsequential that Respondent's counsel requested additional time

1See Administrator's Supplemental Response at 

### § II wherein Administrator claims the delay was due exclusively to Respondent's request for an extension oftime to respond to Administrator's March 26, 2014 correspondence.(upon his being hired) to review the matter, speak to witnesses; and gather evidence because upon counsel's review, it was evident that the statute oflimitations had tolled. The applicable statute oflimitations for this case is 2 years. As the prosecuting agency, the Administrator bears the burden oftimely and accurately bringing it cases as well as the burden of proof. The Administratorhas failed inall these respects as ithas failed to timelybring its actionand has failed to meet the burden ofproofas it has presented no evidence supporting the allegations it declares. Therefore, Respondent's Motion to Dismiss should be granted. SECOND REBUTTAL The Federal Register, Vol. 55, No. 128 at page 27555, indicates that the FAA adopts a "goodcause" standard when addressingthe agency'sinabilityto issue a notice withinthe applicable 2-year statutoryperiod due to the agency's either couldnot or was not aware ofthe violation. Inthis case, not a shred ofevidence has been presented that the agency was not or could not have been

aware ofthe alleged violations committedby Respondent. Instead, Respondent has cited "clerical errors" as the reason the Notice was incorrecf and then attempts to blame Respondent for a delay it did not create (at a time when the original Notice was time barred). Clearly, the good cause standard has notbeen met. The Administrator has failed to meet its burden and is "aday late and a dollar short." Dismissal ofthis case is proper. THIRD REBUTTAL Allowing this matter to proceed when it was originally time barred; contained incorrect allegations againstRespondent (evenonesthatwere notcommitted); andbecause the Administrator has failed to provide good cause for its delay, flies in the face ofdue process for Respondent. The

2Not only did the Notice contain incorrect dates, but it also contained inaccurate allegations as the Notice referenced employee violations and the individual named as an employee was, in fact, NOT an employee ofRespondent.statutory period oflimitations was enacted for a reason and there is no evidence presented by the Administrator that it was not or could not be aware of the infractions allegedly committed by Respondent. Due process and public policy mandates that this matter be dismissed. It is the Administrator's duty to timely and effectively prosecute cases and inthis instance-it did neither. That is notthe burden ofRespondent and because the Administrator did not proceed inthe proper
manner proscribed by the Rules and Regulations, this matter should be dismissed. WHEREFORE,PREMISES CONSIDERED,RespondentrequeststhatitsMotionto Dismiss be granted. Respectfully submitted, this the 15th day ofMay, 2015.

OF COUNSEL: WAYNE E. FERRELL, JR. Mississippi BarNo. 5182 Attorney at Law Law Offices ofWayne E. Ferrell, Jr., PLLC 405 Tombigbee Street Post Office Box 24448 Jackson, Mississippi 39225-4448 (601) 969-4700CERTIFICATE OF SERVICE I, Wayne E. Ferrell, do hereby certifY that I have this day forwarded a true and correct copy ofthe above and foregoing document to the following: Via Federal Express Original and One Copy to: ATTN: Hearing Docket Clerk, AGC-430 Federal Aviation Administration 600 Independence Avenue SW Wilbur Wright Building, Suite 2W1000 Washington, DC 20591 Via U. S. Mail, postage, prepaid One Copyto: Hone. J. E. Sullivan, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 Mr. Deitrick H. Johnson Office ofRegional Counsel Southern Region Federal Aviation Administration P. 

### 0. Box 20636 Atlanta, GA 30320 Via Facsimile to: FaxNo. 202-366-7536 Hone. J. E. Sullivan, Administrative Law Judge Office of Hearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 

### Thi" tho IS'<hyofMay, 2015.



# ~ E E FERRELL, JR.