# The Aviation Law Firm

January 3, 2014 

### VIAREGULARU.S. MAIL Federal Aviation Administration 800 Independence Avenue, SW. Washington, DC 20591 One Research Court Suite 450 Rockville, MD 20850 1-877-4-AIR-LAW · 301-294-8550 866-568-9886 fax 301-294-2525 fax www.AviationlawExperts.com

Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building--Suite 2W1000 Re: Wings Air, LLC, FAA DocketNo. 2012EA110052 Dear Hearing Docket Clerk: Gregory S. Winton, Esq_ Admitted in MD, NY, PA, CT and D.C. Jared M. Allen, Esq.* *Admitted in FL and D.C. Only 

# RECEIVED JAN 10 2014 

## HEARING DOCKET

As you may recall, this office represents Wings Air, LLC, regarding the above-referenced matter. Enclosed please find an original andtwo copies ofRespondent's Answer and Affirmative Defenses. Kindly file stamp one copy and return it to this office inthe enclosed self-addressed, stamped envelope. Thankyou for yourprompt attentionto this matter. Sincerely, 

## !1

## ~~ . J**~** 

## rv\ !+ff:;e7V M. Allen Enclosure

cc: Zachary M. BermanU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

IN THE MATTER OF

WINGS AIR, LLC, Respondent FAA CASENO. 2012EA110052 (Civil Penalty Proceeding) ADMINISTRATIVE LAW JUDGE NOT YET ASSIGNED Hearing Date: NOT YET ASSIGNED Hearing Location: NOT YETASSIGNED 

# RECEIVED JAN 102014 

## HEARING DOCKET

RESPONDENT'S ANSWER AND AFFIRMATIVE DEFENSES COMES NOW, Wings Air, LLC, (hereinafter "Wings Air"), by andthrough undersigned counsel, pursuant to Ru1e 209 ofthe Ru1es ofPractice (14 C.F.R. § 13.209) and hereby files the following Answer and Affirmative Defenses to the Administrator's Complaint, served on December 24,2013. ANSWER I. WINGS AIR admits the allegation contained in sectionI ofthe Complaint. II. 1. WINGS AIR admits the allegations containedin sectionII, paragraph number 1, ofthe Complaint.

2. WINGS AIR admits the allegations contained in section II, paragraph number 2, of the Complaint.3. WINGS AIR admits the allegations contained in section II, paragraph number 3, ofthe Complaint. 4. WINGS AIR admits only that the aircraft sustained a bird strike on or about April28, 2012, and denies the remainder ofthe allegations contained in Section II, paragraph number 4, of the Complaint. 5. WINGS AIR admits only that the birdpenetrated the canopy nose skin ofthe aircraft, and lacks knowledge or information sufficient to form a beliefas to the truth orfalsity ofthe remainder ofthe allegations contained in section II, paragraph number 5, ofthe Complaint and therefore, denies same and demands strict proofthereof. 6. WINGS AIR denies the allegations as stated in section II, paragraph number 6, ofthe Complaint. 7. WINGS AIR denies the allegations as stated in section II, paragraph number 7, ofthe Complaint. 8. WINGS AIR admits the allegations contained in section II, paragraph number 8, ofthe Complaint. 9. WINGS AIR denies the allegations as stated in section II, paragraph number 9, ofthe Complaint. 10. WINGS AIR denies the allegations as stated in section II, paragraph number 10, of the Complaint. 11. WINGS AIR denies the allegations as stated in section II, paragraph number 11, of the Complaint. 12. WINGS AIR denies the allegations as stated in section II, paragraph number 12, of the Complaint.

213. WINGS AIR denies the allegations as stated in section II, paragraphnumber 13, of the Complaint. 14. WINGS AIR lacks knowledge orinformation sufficient to form a beliefas to the truth or falsity ofthe allegations contained in section II, paragraph number 14, ofthe Complaint and therefore, denies same and demands strict proofthereof. III. (a). WINGS AIR denies that it violated 14 C.F.R. § 43.5(a)(l). (b). WINGS AIR denies that it violated 14 C.F.R. § 43.9(a). (c). WINGS AIRdenies that it violated 14 C.F.R. § 43.13(a). (d). WINGS AIR denies that it violated 14 C.F.R. § 91.405(b). (e). WINGS AIR denies that it violated 14 C.F.R. 

### § 91.407(a)(2). (f). WINGS AIR denies that it violated 14 C.F.R. § 135.413(a). IV. 1. WINGS AIR denies that pursuant to 49 U.S.C. § 4630l(a)(l), it is subject to a civil penalty notto exceed $25,000 for each ofthe violations alleged, and further denies thatpursuant to 49 U.S.C. §4630l(a)(5), it is subject to a civil penalty notto exceed $11,000 for each ofthe violations alleged. 2. WINGS AIR denies that under the facts and circumstances ofthis case, a civil penalty of$22,000 is appropriate. Any other allegations not specifically numbered by paragraph are hereby denied.



### 3AFFIRMATIVE DEFENSES 1. In determining the civil penalty amount, the Complainant has failed to consider (1) the nature and circumstances ofthe violation; (2) the extent and gravity ofthe violation; (3) the respondent's degree ofculpability; (4) the respondent's history ofprior violations, ifany; (5) the respondent's ability to pay the civilpenalty; (6) the effect onthe entity's ability to stay in business; and (7) other matters asjustice may require. See 49 U.S.C. §4630I ( e)(2); See also Folsom'sAir Service, Inc., FAA OrderNo. 2008-11 (November 6, 2008), p. 11. 2. WINGS AIRrelies uponthe affirmative defense ofreasonable reliance. Specifically, Respondent asserts that itrelied upon the manufacturer's maintenance manual for the Aerospatiale AS350BA rotorcraft, registration numberN27W A, and authorized representatives ofthe manufacturer. Respondent further asserts that given the facts ofthis case and the entire circumstances, the alleged violation mustbe dismissed. 3. Indetermining the civil penalty amount, the Complainanthas failed to determine whetherthe violation was inadvertent or deliberate. 4. Indetermining the civil penalty amount, the Complainanthas failed to consider the Respondent's size, particularly in determining the alleged offender's ability to absorb the sanction. 5. The proposed civil penaltyfails to reflect the totality ofthe circumstances surrounding the violations. See Folsom'sAirService, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 12; EasternAir Center, Inc., FAA OrderNo. 2008-3 (January 28, 2008). 6. Finding multiple violations for the same offense would constitute '"piling on' [that] shouldbe avoided except under the most egregious circumstances." In the Matter of Carr, FAA OrderNo. 1998-2 at 11-12 (March 12, 1998).

47. WINGS AIR does nothave the financial ability to pay the proposed civil penalty. 8. The proposed civil penalty would have a detrimental effect onthe ability ofWINGS AIRto continue doing business. 9. The Federal Aviation Administration's (FAA's) interpretation ofits Federal Aviation Regulations inthis case is arbitrary, capricious, an abuse ofdiscretion, or otherwise not in accordance withlaw. See 5 U.S.C. § 706(2) (A); Watkins v. NTSB, 178 F.3d 959, 961 (8th Cir. 1999).10. The FAA's interpretation ofits aviationregulations is unconstitutionally vague. See Thomas v. Hinson, 74 F.3d 888, 889 (8th Cir. 1996); see also Trans StatesAirlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006); Heath v. SEC, 2009 U.S. App. LEXIS 24128 at 53-55. 11. The FAA's application ofits Federal Aviation Regulations inthis case is contrary to the regulation's plain language. See Advanta USA, Inc. v. Chao, 350 F.3d 726, 728 (8th Cir. 2003), quoting Gardebring v. Jenkins, 485 U.S. 415, 430, 108 S. Ct. 1306, 99 L. Ed. 2d 515 (1988). See also Trans StatesAirlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006). 12. WINGS AIR asserts that the Complainanthas failed to state a claim upon whichthe reliefrequested may be granted. 13. WINGS AlR asserts thatthe Complainant lacks substantial basis inlaw and fact to continue prosecution ofthis matter against it.

5Dated: January 3, 2014 Respectfully submitted,

GORY S. WINTON, ESQ. JARED M. ALLEN, ESQ. The AviationLawFirm One Research Court, Suite 450 Rockville, MD 20850 Tel: (301) 294-8550 Fax: (866) 568-9886 JAllen@AviationLawExperts.com Counsel for Respondent

6CERTIFICATE OF SERVICE I hereby certify that I have this date sent via U.S. Mail, postage pre-paid, an original and one copy ofthe foregoing Respondent'sAnswer andAffirmative Defenses addressed to: ORIGINAL AND ONE COPY Federal AviationAdministration 800 Independence Avenue, SW. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Suite 2Wl000 And, further, that I have this date sent by electronic mail and by U.S. Mail, postage prepaid, a copy ofthe foregoing addressed to: ONE COPY Zachary M. Berman, Esq. Office ofthe Regional Counsel FAA Eastern Region, AEA-7 1Aviation Plaza, Room 561 Jamaica, NewYork 11434 Tel: 718 553-3258 Fax: 718 995-5699 zachary.berman@faa.gov Dated: January 3, 2014

7 c 

### U10 

# M

..

# ~rJ ared M. Allen, Esq. The Aviation LawFirm One Research Court, Suite 450 Rockville, MD 20850 Tel: (301) 294-8550 Fax: (866) 568-9886