U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATION ADMINISTRATION FEDERAL AVIATION ADMINISTRATION, Complainant, FAA DocketNo: FAA-2011-1125

v. CaseNo. 2010S0150236 ELITE AIR, Respondent,

### --------------------------~/ REsPoNDENT's REsPoNsE IN opposiTioN To

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. MOTION FOR SUMMARY JUDGMENT Respondent, Elite Air, Inc. responds to the motion for Summary Judgment filed by the FAAinthis case and states as follows: STANDARD OF REVIEW SummaryJudgmentis appropriate ifthemovant shows thatthere is no genuine dispute as to any material fact and the movant is entitled tojudgment as a matter oflaw. Fed. R. Civ. P. 56(a). The Court must draw a inferences from the evidence inthe light most favorable to the non-movant and resolve all reasonable doubt inthat party's favor. Porter vRay, 461 F.3d. 1315, 1320 (lith Cir. 2006). The moving party bears the initial burden ofshowing the Court, by reference to materials

on file, that there are no genuine issues ofmaterial fact that shouldbe decided at trial. 

### I d. Fed.R.Civ P. 56(a) refers to "the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, ifany," that maybe used to show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Mere allegations are not suffieicent. ARGUMENT I THE FAAHAS NOT SUBMITTED ANY PLEADINGS, DEPOSITIONS, ANSWERS TO INTERROGATORIES AND ADMISSIONS OR AFFIDAVITS TO SUPPORT ITS MOTION, AND ACCORDINGLY IS NOT ENTITLED TO SUMMARYJUDGMENTIN THE MATTER OF ELITE AIR, INC.,DocketNo.: FAA-2011-1125, FAA CaseNo. 201080150236 In support ofits motion for summaryjudgment, the FAA has cited seven exhibits, none of which meet the standard required under Fed.R.Civ.P. 56 to support it's motion. The FAA is relying on a statement ofInspector Meehan that is not signed under penalties ofpeJjury and is based on hearsay. The FAA also relies on copies of documents that have not (and Respondent believes cannotbe) authenticated. In light of the fact that the FAA has not presented any pleadings, depositions, answers to interrogatories and admissions or affidavits to supports its motion, the FAA is not entitled to summaryjudgment. II EVEN IF THE EXHIBITS SUBMITTED BY THE FAA IN SUPPORT OF ITS MOTION WERE APPROPRIATE, THE FAA STILL WOULD NOT BE ENTITLED TO SUMMARY JUDGMENT

Even ifthe exhibits submitted by the FAA in support ofits motion were appropriate, they would not support summaryjudgment. The FAAhas not shown that the flights were actuallypart 135 flights. Further, the FAA's argument that the Respondent violated the FARbecause a pilot failed to fill in a blank on the company's manifest fails ifthe blank was not applicable, and the FAAhas not shown that the alleged blanks were applicable. Finally, the FAAhas not shown that it is entitled to ignore FAA Order 8900.1 which clearly provides that it is inappropriate to propose a violation when a task has been performed and the personnel simply fails to fill in a blank on a form. It is noteworthy that Inspector Meehan's statement is patently false on its face. Inspector Meehan represents that he "observed" that Elite Airwas not following procedures set forth in the company GOM. In fact, on the day Meehan conducted his inspection, the aircraft was not flying. Inspector Meehan's "observations" related to flights that had occurred more than 2 months prior to his inspection. By then, Elite Air no longer had documents that could have proven Meehan wrong. Page 2 of4IN THE MATTER OF ELITE AIR,INC.• Docket No.: FAA-20!1-1125, FAA Case No. 20IOSO 150236

Based on the foregoing, the FAA's motion for summaryjudgment shouldbe denied. CoNCLUSION

Based on the foregoing, the Respondent respectfully requests that the court enter an order denying the FAA's motion for summaryjudgment. 

### d h./) ' d f Date t 

### IID't> ay o June, 2012. Respectfully submitted, .7

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### ··:B. GRAY**GIBB~**

B. Gray Gibbs, I". 100 Second Avenue South, Suite 1202 St. Petersburg, FL 33701 (727) 892-9901; (727) 892-9902 (fax) Fla. BarNo. 232955 gibbs@gibbslawgroup.corn

Page 3of4IN THEMATTEROF ELITE Affi. INC., DocketNo.: FAA-2011-1125, FAA Case No. 201080150236 CERTIFICATE OF SERVICE I hereby certify that I havethis date provided a copy ofRespondent's Response In Opposition To FAA's Motion for Summary Judgment to the below named addressee, via United States Priority Mail, postageprepaid, addressed to: Mr. Ryan M. Landers Office ofthe Regional Counsel, AEA-7 SouthernRegion Federal Aviation Administration Post Office Box 20636 Atlanta, GA 30320 I hereby certify that I have this date provided a copy, via United States Priority Mail, postage prepaid, a copy, addressed to: TheHonorable J.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200New Jersey Avenue, S.E. Washington, D.C.20590

I hereby certify that have this date caused to be furnished viaUnited States PriorityMail, postage prepaid, the original and a copy addressed to: Hearing Docket Clerk FAAAGC-430, Suite 2Wl000 WilburWright Building 800 Independence Avenue, SW Washington, D.C. 20591 /j Dated this:xu)day ofJune, 2012.

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