### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

# -----~RECEIVED IN THE MATTER OF BAERAIR, INC. Respondent FAA CASE NO. 2011S0150234 (Civil Penalty Proceeding) ADMINISTRATIVE LAWJUDGE Honorable J.E. Sullivan Hearing Date: NOT YET ASSIGNED Hearing Location: NOT YET ASSIGNED
RESPONDENT'S ANSWER 

## MAY 2

## 0 2014 HEARING DOCKET

AND MEMORANDUM IN OPPOSITION TO THE AGENCY'S MOTION TO DISMISS FORFAILURE TO STATE A CLAIM COMES NOW, Baer Air, Inc. (hereinafter "Baer Air"), by and through undersigned counsel, pursuant to Rule 218(d) ofthe Rules ofPractice (14 C.F.R. § 13.218(d)) and hereby submits this Answer and Memorandum in Opposition to the Federal Aviation Administration's Motion to Dismiss Baer Air's request for hearing inthe above-captioned matter. As set forth by the Rules ofPractice for FAA Hearings (14 C.F.R. Part 13, Subpart D), once the Federal Aviation Administration (hereinafter "FAA" or Agency") filed a Complaint in this matter, the Agency waived its opportunity to challenge the timeliness ofBaer Air's

### prose request for a hearing filed pursuantto 14 C.F.R. § 13.35 on March 26, 2014. Furthermore, the Agency's motion to dismiss is untimely. Therefore, BaerAir respectfully requests that the Honorable Administrative LawJudge deny the Agency's motion as improper and untimely or, in the alternative, find that good causeexists to excuse Baer Air for filing its request for hearing pursuant to 14 C.P.R.§ 13.35, only
one day late. In support thereof, Baer Air states the following: STATEMENT OF FACTS 1. This matter arises out ofa Federal Aviation Administration inspection conducted onMay 24, 25, and 26, 2011. 2. Almosttwo years later, onApril30, 2013, the Agency served a Notice ofProposed Civil Penalty upon Baer Air, alleging a violation ofthe Federal Aviation Regulations. 3. OnJuly 15,2013, Baer Air, by and through Jeffrey L. Levy, Esq., its counsel ofrecord atthat time, sent via electronic mail, a notice ofrepresentation concerning this matter to Agency counsel, Vincent Bennett, Esq. Mr. Levy's email stated the following, in part: DearMr. Bennett, I representBaerAir, Inc. in connection with the Notice of Proposed Civil Penalty in FAA Case No. 201ISOJ50234. See Affidavit ofJeffrey L. Levy, attached hereto as Exhibit A, at**~4.** 4. Thereafter, on September 18,2013,

### Mr. Levy attended aninformal conference inperson at the FAA Office ofRegional Counsel, NewEngland Region, withAgency counsel, to discuss
a settlement concerning the above-referencedNotice ofProposed Civil Penalty. See Id. at

5. 

### Mr. Levy was the only representative ofBaer Air, Inc. to attend the informal conference on September 18,2013. See Id. at**~6.** 6. During the informal conference, Mr. Levy advised Mr. Bennett that ifa settlement agreement
was notreached, BaerAir was requesting a formal hearing in this matter pursuant to 14 C.P.R.§ 13.35. See Id. at**~7.** 27. No settlement agreement was reached during or after the informal conference. See 

### !d. at**~8.** 8. As such, Agency counsel had been advisedby Mr. Levypersonally thatBaerAir, Inc. was requesting a hearing inthis matterpursuantto 14 C.F.R. 

### § 13.35. See 

### !d. at**~9.** 9. Moreover, Agency counsel was advised thatBaerAir was, at all relevant times, represented inthis matterby Mr. Levy as counsel ofrecord. See 

### !d. at**~I**0. 10. EventhoughAgency counsel was aware ofMr. Levy's representation ofBaerAir inthis matter, Mr. Levy did notreceive from the FAA a copy ofthe Final Notice ofProposed Civil Penalty datedMarch 5, 2014. See 

### !d. at**~11.** 11. OnMarch 26, 2014, Mr. Levy was advisedby Bill Baer, President ofBaerAir, Inc. thathe hadreturned to his office on that day, after an extended absence due to flight training in Denver, Colorado, andhad discovered anunopened envelope containingthe Final Notice of Proposed Civil Penalty, whichhadbeen addressed to himpersonally and delivered during his absence on or about March 10, 2013. See 

### !d. at**~12.** 12. Since Baer Air was represented by counsel inthis matter, at all relevanttimes, it was understoodby Baer Air, Inc. andMr. Levy that all communications from the FAA concerning this matter, including a Final Notice ofProposed Civil Penalty, wouldbe served upon and directed to the attention ofMr. Levy. See 

### !d. at**~13.** 13. Nevertheless, Agency counsel, without good cause, failed to serve a copy ofthe Final Notice ofProposed Civil PenaltyuponMr. Levy, as counsel ofrecord for BaerAir. 14. Immediately after being informed ofthe FinalNotice ofProposed Civil Penalty by BaerAir, Mr. Levy contacted Agency counsel to advise him againthat BaerAir, Inc. was requesting a hearing inthis matter pursuantto 14 C.F.R. 

### § 13.35. See 

### !d. at**~14.**

3

### 15. On March 26, 2014, Baer Air, Inc., proceedingprose, 

### filed a request for hearing in this matter pursuantto 14 C.P.R.§ 13.35. See 

### Exhibit B, attached hereto. 16. Thereafter, onMarch 31, 2014, the Agency filed its Complaint in this matter. 17. On April4, 2014, the Agency filed a "Corrected Complaint." 18. On Aprill4, 2014, Baer Air, through undersigned counsel, filed its Answer and Affirmative Defenses. 19. On May 1, 

### 2014, the Agency filed a motion to dismiss Baer Air's request for hearing, styled
as a "MotionTo Dismiss For Failure To State A Claim (i.e., the present motion)." ARGUMENT 

### I. The FederalAviation Administration Waived Its Opportunity To Challenge The Timeliness OfBaer Air's Request For a Hearing. 

### Once the Agency counsel filed a Complaintin this matter, the Agency waived its opportunity to challenge the timeliness ofBaer Air's request for a hearing. Clearly, the plain language ofthe Ru1es ofPractice establish that insteadof filing a complaint

### the Agency may file
a motionto dismiss the request for hearing. As such, the plainlanguage ofthe Ru1es ofPractice and well-settled case law require that the Agency's motion to dismiss be denied as improper. More specifically, Section 13.208 entitled Complaint 

### states the following: (a) Filing. The agency attorney shall file the original and one copy ofthe complaint with the hearing docket clerk, or

### may file a written motion pursuant to§ l3.218(f)(2)(i) ofthis subpartinsteadof filing a complaint, 

### not later than 20 days after receipt by the agency attorney ofa request for hearing. 14 

### C.P.R. § 13.208(a) (emphasis added). Furthermore, Section 13.218(f)(2)(i) entitledMotion to dismiss a request for a hearing 

### states the following:

4An agency attorney may file a motionto dismiss a request for a hearing 

### insteadof filing a complaint. Ifthe motion to dismiss is not granted, the agency attorney shall file the complaint and shall serve a copy ofthe complaint oneachparty not later than 10 days after service ofthe administrative lawjudge's ruling or order onthe motion to dismiss. If the motionto dismiss is granted and the proceedings are terminated without a hearing, the respondent may file an appeal pursuantto§ 13.233 ofthis subpart. Ifrequired by the decision onappeal, the agency attorney shall file a complaint and shall serve a copy of the complaint on eachparty notlater than l0 days after service ofthe decision on appeal. 14 C.P.R.§ 13.208(a) (emphasis added). In

### FAA v. 

### HarbonAirlines, FAA DocketNo. CP96NM0250 (1996 FAA LEXIS 1534) (1996), the Court1 denied the Agency's motion to dismiss because the Agency had already filed its Complaint. In

### HarbonAirlines, the Agency filed a Complaint and, atthe same time, filed a motion to dismiss the request for a hearing pursuantto section 13.218(f)(2)(i), based upon the respondent's alleged failure to file a timely appeal ofthe final notice ofproposed civil penalty. In denying the motionto dismiss, the Courtheld that "[o]nee the agency filed the Complaint, it effectively waived it's right to challenge the timeliness ofthe request for hearing." Order Denying Motion to Dismiss at 1. The Courtreasoned that "Section l3.218(f)(2)(i) states that the agency may file a 'motion to dismiss a request for a bearing instead offiling a Complaint." 

### I

d. (emphasis in original). Similar to Agency counsel inthe 

### HarbonAirlines case, Agency counsel inthe present matter, waived the opportunity to challenge thetimeliness ofBaer Air's request for hearing by filing the Complaint 

### insteadof filing a motionto dismiss the request for hearing. There is no dispute that the record reflects a Complaint inthis matter was filed on March 31, 2014, and a "corrected Complaint" filed onApril4, 2014. BaerAir answered the corrected Complaint on April14, 2014. 

### Itwas notuntil May 1, 2014, thatthe Agency filed its motion to dismiss the request for hearing.
1"14 C.P.R.§ 13.2330)(3) provides that decisions byjudges are not precedentunless they are 5Allowing the Agency to challenge the timeliness ofBaer Air's request for hearing after the Complainthas been filed, will unduly prejudice the Respondent. Specifically, Baer Air has already expended substantial time and financial resources in responding to the Agency's Complaint, including the retention ofundersigned counsel to review the Enforcement Investigative Report (EIR), file an Answer and Affirmative Defenses, in addition to conducting motionpractice to set the hearing location inthis matter. These resources would not have been expended had Agency counsel properly filed a motion to dismiss BaerAir's request for hearing instead offiling the Complaint, as the Rules ofPractice dictate. Accordingly, theAgency's motionto dismiss Bear Air's request for hearing mustbe denied as improperbecause it was not filed instead of the Complaint, and as set-forth below, must also be denied as untimely. 

### II. The Agency's Motion To Dismiss Is Untimely. The Rules ofPractice provide that when an Agency attorney files a motionto dismiss a request for hearing under Section 13.218(f)(2)(i), instead ofthe complaint, the motion to dismiss mustbe filed within 20 days after receipt by the Agency attorney ofthe request for hearing. In the present case, the Agency attorney waited thirty-six (36) days after receiving BaerAir's request for hearing before filing a motionto dismiss. Therefore, the Agency's motion mustbe denied as untimely. 

### Itis well established that even ifthe request for hearing is untimely, the Agency's failure to file a motionto dismiss the request for hearing within the 20-day filing period ofSection 13.208(a), will result inthe motionbeing denied as untimely. Specifically, "[f]ailure to timely
..

. move to dismiss the request for hearing will not be excused absent a demonstration ofgood
cause and couldresult in
. . . denial ofthe motion to dismiss the request for hearing. " 

### See In the

6Matter of Aero-Weld, Inc. FDMS No. FAA-2012-0909 (2013 FAA LEXIS 30) (2013). See also FAA v. Tony Rizzuto, FAA DocketNo. CP98WP0057, (1999 FAA LEXIS 1036) (1999) (Chief ALJ denying as untimely Agency's motion to dismiss request even though the request for hearing was "nottimely or carefully articulated"). Furthermore, "[ s]incethe administrative lawjudge, not the agency attorney, determines whether a request for hearing was late-filed, the 20-dayperiod establishedby § 13.208(a) applies whether requests appear to be timely or late filed." FAA v. Tony Rizzuto, FAADocketNo. CP98WP0057, n.7 (1999 FAA LEXIS 1036) (1999) (citing In the Matter of Ben Rayner, FAA Order 95-19 (1995) and In the Matter of RayHouston, FAA Order 94-37 (1994). Here, there canbe no dispute that the Agency did not file its motion within the 20-day period established by Section 13.208(a). The Agency's motion to dismiss admits that BaerAir made a written request for hearing on March 26,2014. See Agency Mot. at 1. Furthermore, the Agency's motion to dismiss, as well as its accompanying certificate ofservice, is dated May 

### 1, 2014. Therefore, the Agency's motion was filed thirty-six (36) days after Agency counsel received BaerAir's request for hearing. As such, the Agency's motion to dismiss is untimely pursuantto Section 13.208(a), and mustbe denied. Significantly, the Agency's motionto dismiss fails to offer, let alone demonstrate, any good cause for the significant delay. Inany event, the service ofan Order Assessing Civil Penalty in this matter, on the same day that the Agency received BaerAir's request for hearing, is not good cause to excuse the Agency's lack ofdiligence infiling the motion to dismiss. In fact, "[t]he issuance ofan Order Assessing Civil Penalty does not relieve the FAA ofits duty to file a complaint ormotion under§ 13.208(a) after it receives a request for hearing."FAA v. Tony Rizzuto, FAA DocketNo. CP98WP0057, (1999 FAA LEXIS 1036) (1999) (citing In the Matter



### 7

### of Ben Rayner, FAA Order 95-19 (1995) and

### In the Matter of RayHouston, FAA Order 94-37 (1994).Likewise, as set-forth above, the Agency's filing ofits Complaint waived any opportunity to challenge the timeliness ofBaerAir's request for hearing. Moreover, the improperpractice of filing the Complaintpriorto a motionto dismiss the request for hearing does not serve as good
cause to excuse the untimely motion to dismiss. Accordingly, the Agency's motion to dismiss is untimely because it was not filed within the 20-day period establishedby Section 13.218(f)(2(i). Furthermore, as no good cause exists to justifY the Agency's improper and unreasonable delay, the motionto dismiss BaerAir's request for hearing must be denied. 

### III. Good Cause Exists For Baer Air's Belated

### ProSe Request For Hearing. A close examination ofall the circumstances ofthis case demonstrates that good cause exists for Baer Air's belated

### prose request for hearing because BaerAir, Inc. hadtaken all appropriate measures to protect against the danger ofdefault in this matter. Specifically, Baer Airretained Jeffrey L. Levy, as counsel, to represent the company in this matter. Furthermore, Mr. Levy properly sent notice ofhis representation to Agency counsel, and met inperson with Agency counsel to conduct the informal conference ofthis matter. At all relevant times, William Baer, President ofBaerAir, was kept apprised ofthe progress ofthis matterby andthrough Mr. Levy, as counsel. Accordingly, Mr. Baer did not know, and had no reasonto know, that approximately six (6) months after Mr. Levy attended the informal conference withAgency counsel, a Final Notice ofCivil Penalty, addressed to him personally, would be sentto his office while he was away flight training in Denver, CO. Furthermore, Mr. Baer did notknow, or have

8reason to know, that Agency counsel would not also send a copy ofthe FinalNotice ofCivil Penaltyto Mr. Levy, as BaerAir's counsel ofrecord. "The Administrator has held that anuntimely request ofhearing will be excused only if good cause is sllown." In the Matter of Ryan InternationalAirlines, FAA OrderNo. 2000-2 at 3 (2000). "The facts ofeach case mustbe evaluated to determine ifgood cause exists in each case." In the Matter of William J Esau, FAA Order 91-24 at 2 (1994) (finding good cause existed when secretary, unbeknownst to counsel, mailed the appeal briefto the National Transportation Safety Board instead ofto the FAA Hearing Docket Clerk). The facts ofthe present case establish that good cause exists to excuse BaerAir's belated requestfor hearing because BaerAirrelied upon its counsel to communicate with the Agency, andunbeknownst to both Baer Air and its counsel, Agency counsel sentthe Final Notice of Proposed Civil Penalty only to William Baer, as President ofBaerAir, Inc., approximately six (6) months after the informal conference. Furthermore, Agency counsel, without good cause, failed to copy Mr. Levy, as BaerAir's counsel ofrecord, even though Agency counsel knew that Mr. Levy was the only representative for Baer Air to attend the informal conference. The record is clearthatprior to issuing the Final Notice ofProposed Civil Penalty, Agency counsel was advised that BaerAirwas represented by counsel inthis matter, and that BaerAir wouldrequest a formal hearing inthis matter ifa settlement agreement was not reached atthe informal conference. Further, it is undisputed that on July 15,2013, Mr. Levy, as counsel for Bear Air, sent a notice ofrepresentation to Agency counsel, Vincent Bennett, Esq. On September 18,2013, Mr. Levy attended an informal conference inperson at the FAA Office ofRegional Counsel, NewEngland Region, with Vincent Bennett, Esq., to discuss a settlement concerning the above-referencedNotice ofProposed Civil Penalty. See 

### !d. at**~5.**
9Mr. Levy was the only representative ofBaerAir to attend the informal conference on September 18,2013. 

### See Id at**~6.** During the informal conference, Mr. Levy advised Mr. Bennettthat BaerAirwas requesting a formal hearing inthis matter in accordance with Part 13 ofthe Federal Aviation Regulations, ifa settlement agreement was notreached. 

### See 

### !d. at**~7.** No settlement agreement
was reached during or after the informal conference. 

### See ld at**~8.** As such, Agency counsel hadbeenadvised by Mr. Levy personally that he represented BaerAir, and that BaerAirwas requesting a hearing in this matter. 

### See 

### !d. at**~9** &**~1**0. Nevertheless, eventhough Agency counsel had knowledge ofMr. Levy's role as counsel of record for Baer Air inthis matter, Agency counsel, without good cause, failed to serve Mr. Levy with a copy ofthe Final Notice ofProposed Civil Penalty dated March 5, 2014. 

### See 

### !d. at**~11.** On March 26,2014, Mr. Levy was advised by William Baer, President ofBaerAir, that he hadreturned to his office onthat day, after an extended absence for flight training in Denver, Colorado, and had discovered anunopened envelope containing the Final Notice ofProposed Civil Penalty, which hadpersonally addressed to him and delivered during his absence on or about March 10,2013. 

### See Id at**~12.** Since BaerAir was represented by counsel at all relevant times, it was understood by bothMr. Baer and Mr. Levy that all communications from the FAA concerning this matter would be directed to Mr. Levy's attention. 

### See 

### !d. at**~13.** "Good cause for late filings hasbeen found when 'respondents may have been confusedby technical requirements ofthese proceedings."' 

### In the Matter of Mary E. Bochiardy, FAA Docket No. FAA-2013-0853 (2014 FAA LEXIS 88) (2014) (quoting

### In re Robert W Wiedle, FAA DocketNo. CP99WP0015, Order ofActing ChiefALJ (2000)).

10Here, there was nothing to suggest to Mr. Baer that six (6) months after Mr. Levy attended the informal conference inthis matter, a FinalNotice ofCivil Penalty would arrive at Mr. Baer's office during his absence, orthat Agency counsel would notto send a copy ofthe Final Notice ofProposed Civil Penalty to Mr. Levy, as Baer Air's counsel ofrecord. Significantly, after becoming aware ofthe Final Notice ofProposed Civil Penalty, Baer Air, proceedingpro se, immediately filed its request for hearing. See ExhibitB, attached hereto. As such, Baer Air took immediate actionto cure the default in its untimely request for hearing pursuant to 14 C.P.R.§ 13.35 onMarch 26, 2014. Therefore, good cause exists for the one-day delay. See In the Matter of Safety Equipment andSign Co., Ltd FAA OrderNo. 92-76 (1992) (FAA Administrator considered Respondent's actions to promptly to cure the defaultupon learning ofitin fmding good cause existed for delay in filing Answer). Likewise, after being informed ofthe Final Notice ofProposed Civil Penalty by Baer Air, Mr. Levy contacted Mr. Bennettto advise him again that Baer Air was requesting a hearing inthis matter. See Id at**~14.** Finding good cause to excuse BaerAir's belatedrequest for hearing will not prejudice the Agency. In fact, the Agency counsel has not claimedthat any prejudice will occurifthe motion to dismiss the request for hearing is denied, nor canhe. See In the Matter of Safety Equipment andSign Co., Ltd FAA OrderNo. 92-76 (1992) (FAAAdministrator considered lack of prejudice to Agency in finding good cause existed for delay infiling Answer) (citing FDICv. Francisco Investment Corporation, 873 F.2d 474,479 (1st Cir. 1989), considering whether the non-defaulting party hadbeenprejudicedby the default, and stating thatthe issue was not mere delay, butrather its accompanying dangers: loss ofevidence, increased difficulties ofdiscovery,
or anenhanced opportunity for fraud or collusion). See also In the Matter of Cornwall, FAA OrderNo. 92-47 (1992) (FAA Administrator found good cause for a respondent's late answer as



### 11respondent acted quickly upon learning oferror to cure the default, and as respondent's late
answer was filed early in the proceedings, the Agency had notbeenprejudicedby the late filing). Finally, the interests of justice require that good cause be found to excuse Baer Air's belated request for hearing because established precedent does not favor defaults. See, e.g., In the Matter of Larry's Flying Service, Inc., FAA OrderNo. 98-4 at7 (1998); In the Matter of SafetyEquipment andSign Co., Ltd., FAA Order No. 92-76 at 5 (1992); In the Matter of David LloydCornwall, FAA Order 92-47 at 7 (1992) ("Wherever possible, cases should be disposed of
onthe merits after a hearing, rather than summarily because ofa procedural defect."). Accordingly, a close examination ofall the circumstances inthis case demonstrates that good exists for Baer Air's belatedpro se request for hearing, because BaerAir hadtaken all appropriate measures to protect against the danger ofdefault in this matter. As such, the Agency's motion to dismiss should be denied. CONCLUSION As set forth above, the Agency's motionto dismiss BaerAir's request for hearing is improper and untimely pursuant to Sections 13.208(a) and 13.218(f)(2)(i) ofthe Rules of Practice. Forthese reasons, Baer Air respectfully requests that the Honorable Administrative Law Judge deny the Agency's motion to dismiss the request for hearing, or, inthe alternative, find that good cause exists to excuse Baer Air's belated request for hearing.

12

### Dated: May 14,2014

Grego S. Jare len, q. 

### T\)e A via· n 

### wFirm ,0ne Rese Court, Suite 450 /Rockville, MD 20850 Tel: (301) 294-8550 Fax: (866) 568 9886 Counsel for Respondent

13

# EXHIBIT AU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
IN THE MATTER OF BAERAIR, INC. Respondent FAA CASE NO. 2011S0150234 (Civil Penalty Proceeding) ADMINISTRATIVE LAW JUDGE Honorable J.E. Sullivan Hearing Date: NOT YET ASSIGNED Hearing Location: NOT YET ASSIGNED
AFFIDAVIT OF JEFFREY L. LEVY, ESQ. IN SUPPORT OF RESPONDENT'S MEMORANDUM IN OPPOSITION TO THE AGENCY'S MOTION TO DISMISS 1. My name is Jeffrey L. Levy, and I have personal knowledge ofthe following facts and events, and I make the following statements under the penalties ofperjury. 2. I am an attorney admittedto practice law inthe Commonwealth ofMassachusetts and the State ofMinnesota, with an office located inProvidence, Rhode Island. 3. Atall times relevant herein, I was counsel for BaerAir, Inc., concerning a Notice of Proposed Civil Penalty dated April30, 2013, Federal Aviation Administration ("FAA") Case No. 20llSOl50234, concerning an alleged violation ofthe Federal Aviation Regulations. 4. OnJuly 15, 2013, I sent via electronic mail, a notice ofmy representation ofBaerAir, Inc. concerning the above-referenced Notice ofProposed Civil Penalty to Vincent Bennett, Esq., agency counsel. The communication stated the following, in part:DearMr. Bennett, I representBaerAir, Inc. in connection with the Notice of Proposed CivilPenalty in FAA Case No. 2011S0150234. See Exhibit A at page 3, attached hetero. 5. On September 18,2013, I attended an informal conference inperson at the FAA Office of Regional Counsel, NewEngland Region, with Vincent Bennett, Esq., to discuss a settlement concerning the above-referenced Notice ofProposed Civil Penalty. See Exhibit B, attached hereto. 6. I was the only representative ofBaer Air, Inc., to attend the informal conference on September 18, 2013. 7. During the informal conference, I advised Mr. Bennettthat Baer Air, Inc., was requesting a formal hearing inthis matter in accordance with Part 13, Subpart G ofthe Federal Aviation Regulations, ifa settlement agreement was not reached. 8. No settlement agreement was reached during or after the informal conference. 9. As such, agency counsel had been advised bymepersonally that BaerAir, Inc. was requesting a hearing in this matter. 10. Moreover, agency counsel was advised that BaerAir, Inc. was represented in this matter by
me as counsel. 11. Even though agency counsel was aware ofmy representation ofBaer Air, Inc. inthis matter, I did notreceive from the FAA a copy ofthe Final Notice ofProposed Civil Penalty dated March 5, 2014. 12. OnMarch 26,2014, I was advised by Bill Baer, President ofBaer Air, Inc. that he had returned to his office on that day, after an extended absence due to flight training in Denver,

2

### Colorado, and had discovered an unopened envelope containing the Final Notice of

### Proposed Civil Penalty which hadbeen delivered during his absence on or about March 10,2013.

· 13. As BaerAir, Inc. was represented by counsel in this matter, it 

### was understoodbyBaerAir, Inc. and myselfthat all communications from the FAA concerningthis matterwouldbe directed to my attention. 14. Immediately afterbeing informed ofthe Final Notice ofProposed Civil Penalty, 1

### contacted Mr. Bennett to advise him again that BaerAir, Inc. was requesting ahearing in 

### this matter. 

### See Exhibit C. 15. On 

### Mareh 26, 2014, BaerAir, Inc., proceeding

### prose, filed arequest fur hearing inthis matterpursuant to 14 C.F.R. § 13.35. !6. I am competentto 

### testify as to

### the matters stated herein.

,ESQ.

3

# Affidavit ofJeffrey L. Levy, Esq.
EXHIBIT AJared Allen From: Sent: Gregory Winton <greg@aviationlawexperts.com> Tuesday, May 13, 2014 2:38 PM To: Jared Michael Allen Subject: Fwd: Case No. 201150150234 

### Gregory S. Winton, Esq. The Aviation Law Firm One Research Court Suite 450 Rockville, MD 20850 greg@aviationlawexperts.com Toll free: 1-877-4-AIR LAW Local: (301) 294-8550 Cell: (301) 529-5660 Fax: (301) 294-2525 Fax: (866) 568-9886 Begin forwarded message: 

### From: 

### Jeff Levy <jefflevy18@me.com> Subject: Fwd: Case No. 2011S0150234 Date: 

### May 13,2014 2:35:25 PM EDT To: 

### Gregory Winton <greg@aviationlawexperts.com>
Begin forwarded message: 

### From: 

### Jeff Levy <jefflevy18@me.com> Subject: Re: Case No. 2011 S0150234 Date: 

### August 5, 2013 4:02:44 PM EDT To: 

### "Vincent.Bennett@faa.gov" <Vincent.Bennett@faa.gov> Great, thanks. See youthen. Jeff On Aug 5, 2013, at 4:01PM, Vincent.Bennett@faa.gov wrote: Yes, but building three, not 12; renovations. Second floor. I'll tell the guard to let you in. 1Regards, Vince

From: To: Date: Jeff Levy <jefflevy18@me.com> ANE-007, Office of Regional Counsel

Vincent Bennett!ANEIFAA@FAA,

08/05/2013 03:45 PM Subject: Re: Case No. 201180150234

Let's say 10 am. You are in the Burlington office, right? On Aug 5, 2013, at 3:40PM, Vincent.Bennett@faa.gov wrote: Jeff: Which is easier for you; afternoon or AM? AM around 9 or 10, afternoon around 2:30 work well. Let me know. Regards, Vince

From: Jeff Levy <jefflevy18@me.com> To: Date:ANE-007, Office of Regional Counsel Vincent Bennett/ANEIFAA@FAA,

08/04/2013 09:14PM Subject: Re: Case No. 201180150234

Vince, Sorry I have been out oftouch. I have been trying to coordinate schedules with Bill Baer, which has been challenging. In the end, I willjustcome in to see you without him for the informal. Do you have any availability on August 14th? Thanks Jeff OnJul17, 2013, at 9:46AM, JeffLevy <jefflevy18@me.com> wrote: Vince, He is still in training on the 12th and 13th, check ride onthe 14th. 

### I'll give you a call. What is your number? Jeff OnJul17, 2013, at 8:32AM, Vincent.Bennett@,faa.gov wrote:
2Jeff: So the 12th is good? Your client seems available. He can be here and back in plenty oftime. Ifthis doesn't work, please call. Regards, Vince

From: Jeff Levy <jefflevy18@me.com> To: ANE-007, Office of Regional Counsel Vincent Bennett/ANE/FAA@FAA,

07/15/2013 05:36PM Date: Subject Re: Case No. 201180150234

Mr. Bennett, Thanks for getting backto me. Unfortunately, the week ofAugust 12 is only four weeks away (the summeris flying by). Mr. Baertells me his checkride is 

### inDenver is August 14, and I leave for Europe onthe 16th. Is there any possibility we canpush it to the week of9/9? Thanks Jeff On Jul15, 2013, at 2:50PM, Vincent.Bennett@.faa.gov wrote: Mr. Levy, good afternoon. Five weeks from today is the week of 12 August. From what you indicated, anytime that week should likely work as your client will be back form upgrade. That week should also be far enough out that he can bid out the time too. If so, when during the week ofAugust 12 would he be available to do the IC? That way we avoid all vacation schedules
... Regards, Vincent Bennett, Esq. (781) 238 7044

From: Jeff Levy <jefflevy18@me.com> ANE-007, Office of Regional Counsel To: Vincent Bennett/ANEIFAA@FAA, Date: 07/15/2013 02:03PM Subject Case No. 201180150234

Dear Mr. Bennett, I represent Baer Air, Inc. in connection with the Notice of Proposed Civil Penalty in FAA Case No. 201180150234. My client has received your 3correspondence dated July 9, 2013 scheduling an Informal Conference for July 17, 2013. I am writing to request that the FAA reschedule the Conference. Baer Air's President and DO, Bill Baer, is employed as a pilot by United Airlines, and he is in 777 training in Denver for the next four weeks. I will also be away on vacation during the last two weeks of August. Would it be possible to find a mutually convenient date in September (which would also allow Mr. Baer to bid his United schedule accordingly)? Please feel free to contact me if you have any questions. My cell phone is (401) 529-8126. Thank you. Jeff Levy

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4

# Affidavit ofJeffrey L. Levy, Esq.
EXHIBITB

### Jared Allen From: Sent: Gregory Winton <greg@aviationlawexperts.com> Tuesday, May 13, 2014 2:39 PM To: Jared Michael Allen Subject: Fwd: Baer Air, FAA Case No. 201150150234 

### Gregory S. Winton, Esq. The Aviation Law Firm One Research Court Suite 450 Rockville, MD 20850 greg@aviationlawexperts.com Toll free: 1-877-4-AIR LAW Local: (301) 294-8550 Cell: (301) 529-5660 Fax: (301) 294-2525 Fax: (866) 568-9886 Beginforwarded message: 

### From: Jeff Levy <jefflevy18@me.com> 

### Subject: Fwd: Baer Air, FAA Case No. 2011S0150234 Date: May 13, 2014 2:35:46 PM EDT To: Gregory Winton <greg@aviationlawexperts.com>
Begin forwarded message: 

### From: Vincent.Bennett@faa.gov 

### Subject: Re: BaerAir, FAA Case No. 2011S0150234 Date: September 16, 2013 10:35:43 AM EDT To: Jeff Levy <jefflevy18@me.com> OK. Same place as last time
... R, 

### v

From: Jeff Levy <jefflevv18@me.com> ANE-007, Office of Regional Counsel To: Vincent Bennett!ANE/FAA@FAA, 1Date: ·89/16/2013 08:40AM**~;ubject:** Re: BaerAir, FAA Case No. 201150150234

Yes, no problem. See you then. On Sep 

### 16,2013, at 

### 8:33AM, Vincent.Be1mett@,faa.gov wrote: 1430 would work for me. Does that give you enough time to get here?

From: To Date: Jeff Levy <jeffievy18@me.com> ANE-007, Office of Regional Counsel

Vincent BennetVANE/FAA@FAA,

09/16/2013 08:28 AM Subject Re: Baer Air, FAA Case No. 201150150234

I have something scheduled inthe morning now but I could do afternoon- anytime after around 

### 12:30. On Sep 

### 16, 2013, at 

### 8:26AM, Vincent.Bennett@faa.gov wrote: Jeff: How about this Wednesday, the 18th? R, Vince

From: Jeff Levy <jefflevv18@me.com> ANE-007, Office of Regional Counsel To: Vincent Bennett/ANE/FAA@FAA, Date·. 09/13/201311:16 AM Subject: Re: Baer Air, FAA Case No. 201180150234

VinceI alsojust scheduled something for the morning of

### 9/26 so that is out. The rest ofthe week is still OKwith the exception ofthe afternoon of

### 9/25. Jeff On Sep 

### 12, 2013, at 

### 3:50PM, vincent.bennett@faa.gov wrote: So Wednesday 25 Sep at 1430 works? Phone or in person? R, 

### v

From: Jeff Levy <jefflevy18@me.com> ANE-007, Office of Regional Counsel To: Vincent BennetVANE/FAA@FAA, 2Date: D9/12/2013 02:20PM Subject: Re: Baer Air, FAA Case No. 2011S0150234

Vince, I am pretty open next week, except for Tuesday. The following week is OK too. Jeff On Sep 12, 2013, at 1:55PM, Vincent.Bennettcalfaa.gov wrote: Mr. Levy, good afternoon. I am looking to reschedule the IC in the case. What does your schedule look like in the next three weeks? Regards, Vincent Bennett, Esq.

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### I Virus Database: 3722/7480- Release Date: 05112114

3

# Affidavit ofJeffrey L. Levy, Esq.
EXHIBIT C

### Jared Allen From: Sent: Gregory Winton <greg@aviationlawexperts.com> Tuesday, May 13, 2014 3:10 PM To: Jared Michael Allen Subject: Fwd: Baer Air Case No. 201150150234 

### Gregory S. Winton, Esq. The Aviation Law Firm One Research Court Suite 450 Rockville, MD 20850 greg@aviationlawexperts.com Toll free: 1-877-4-AIR LAW Local: (301) 294-8550 Cell: (301) 529-5660 Fax: (301) 294-2525 Fax: (866) 568-9886 Begin forwarded message: 

### From: Jeff Levy <jefflevy18@me.com> Subject: Fwd: Baer Air Case No. 2011S0150234 Date: May 13,2014 2:17:47 PM EDT To: Gregory Winton <greg@aviationlawexperts.com>
Begin forwarded message: 

### From: Vincent.Bennett@faa.gov Subject: Re: BaerAir Case No. 2011 S0150234 Date: March 26, 201412:14:51 PM EDT To: Jeff Levy <jefflevv18@me.com> Mr. Levy: Thank you for your email. I do not have the statutory authority to extend the appeals period. Your client signed for his Final Notice on March 5, 2014. His 15 days to appeal runs from date of receipt, as he was so informed in the Final Notice. That 15 day period is now past. 1While the appeals period has run, the debt to the government has not yet been imposed; we have not yet issued the Order which does that, but the Order assessing the civil penalty will be issued shortly. Please contact this office to arrange payment, or ifyou or Mr. Baer have any questions. Regards, Vincent Bennett, Esq.

From: To: Date: Jeff Levy <iefflevy18@me.com> ANE-007, Office of Regional Counsel

Vincent Bennett/ANE/FAA@FAA,

03/26/201411:14 AM Subject Baer Air Case No. 2011 S0150234

Dear Mr. Bennett, My client informed me today that he received a Final Notice of Proposed Civil Penalty in this matter at his office in Florida. A copy of the Final Notice was not sent to me, even though the FAA is aware of my representation in this matter. My client intends to request a hearing in this matter, and requests an extension to submit its request until Friday, April 4, 2014. Please advise me of your response as soon as possible. Thank you. Jeff Levy



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### I Virus Database: 3722/7480- Release Date: 05/12/14

2

# EXHIBIT BMr. Michael P. Huerta, Administrator Federal Aviation Administration 600 Independence Avenue SW Wilbur Wright Building, Suite 2W1000 Washington, D.C. 20591 Attention: Hearing Docket Clerk AGC-430 In the matter of: Baer Air, Inc. Case #2011S0150234 March 26, 2014 Dear Administrator, In accordance with 14 CFR 13.16, Baer Air, Inc. is requesting a hearing before an Administrative Law Judge ofthe FAA in the matter of Case #2011S0150234. The President of Baer Air, William Baer, was made aware ofthis Final Notice of Proposed Civil Penalty on March 26, 2014 and responded immediately. Baer Air's representative in this matter, Mr. Jeffrey Levy, Esq., was not aware ofthe Final Notice until Mr. Baer contacted him on March 26, 2014. Mr. Levy, Baer Air's representative of record with Mr. Vincent J. Bennett, Senior Attorney with the Office of Regional Counsel ANE-7, was not notified by Mr. Bennett of the Final Notice decision. Baer Air never operated N959GM out of a current inspection cycle as alleged in Mr. Bennett's Final Notice of Proposed Civil Penalty and Baer Air is requesting this hearingto present the evidence as such. Thank you for your consideration. Respectfully, William Baer, President Copied: Mr. Vincent J Bennett Office ofthe Regional Counsel, ANE-7 Federal Aviation Administration 12 New England Executive Park Burlington, Massachusetts 01803 Mr. Jeffrey Levy, Esq. 170 Brown Street Providence, Rhode Island 02906

### CERTIFICATE 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'SANSWERANDMEMORANDUMINOPPOSITIONTO THEAGENCY'SMOTION TO DISMISSFOR FAILURE TO STATEA CLAIM addressedto: ORIGINAL AND ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building--Suite 2Wl000 And, further, thatI have this date sentby U.S. Mail, postage prepaid, a copy ofthe foregoing addressed to: ONE COPY Vincent Bennett Office ofthe Regional Counsel, ANE-7 12 NewEngland Executive Park Burlington,MA 01803 ATTN: Vincenti. Bennett Tel: (781) 238-8044 Fax: (781) 238-7055 ONE COPY Judge J.E. Sullivan 

### US. Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave, S.E. (Ell-310) Washington, D.C. 20590 Tel: (202) 366-6941 Fax: (202) 366-7536 Dated: May 14,2014

14 Greg S, 

## w· ton, Esq. ·"'--" 

### . The**~**

### viat10n LawFirm 

### 0 Research Court, Suite 450 Rockville, MD 20850 Tel: (301) 294-8550 Fax: (866) 568-9886