U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

-----~RECEIVED IN THE MATTER OF 

BAER AIR, 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 

RESPONDENT'S ANSWER 

MAY 2 0 2014 

HEARING DOCKET 

AND MEMORANDUM IN OPPOSITION TO THE AGENCY'S 

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 

COMES NOW, Baer Air, Inc. (hereinafter "Baer Air"), by and through undersigned 

counsel, pursuant to Rule 218(d) of the Rules of Practice (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 in the above-captioned matter. As set forth by 

the Rules of Practice 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 pursuant to 14 C.F.R. § 13.35 on March 26, 2014. Furthermore, the Agency's 

motion to dismiss is untimely. 

Therefore, Baer Air respectfully requests that the Honorable Administrative Law Judge 

deny the Agency's motion as improper and untimely or, in the alternative, find that good cause 
exists 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 of a Federal Aviation Administration inspection conducted on May 24, 

25, and 26, 2011. 

2. Almost two years later, on April30, 2013, the Agency served a Notice of Proposed Civil 

Penalty upon Baer Air, alleging a violation of the Federal Aviation Regulations. 

3. On July 15,2013, Baer Air, by and through Jeffrey L. Levy, Esq., its counsel of record at that 

time, sent via electronic mail, a notice of representation concerning this matter to Agency 

counsel, Vincent Bennett, Esq. Mr. Levy's email stated the following, in part: 

Dear Mr. Bennett, 

I represent Baer Air, Inc. in connection with the Notice of Proposed Civil Penalty in 

FAA Case No. 201ISOJ50234. 

See Affidavit of Jeffrey L. Levy, attached hereto as Exhibit A, at ~4. 

4. Thereafter, on September 18,2013, Mr. Levy attended an informal conference in person at 

the FAA Office of Regional Counsel, New England Region, with Agency counsel, to discuss 

a settlement concerning the above-referenced Notice of Proposed 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 I d. at ~6. 

6. During the informal conference, Mr. Levy advised Mr. Bennett that if a settlement agreement 

was not reached, Baer Air was requesting a formal hearing in this matter pursuant to 14 

C.P.R.§ 13.35. See Id. at ~7. 

2 
7. No settlement agreement was reached during or after the informal conference. See !d. at ~8. 

8. As such, Agency counsel had been advised by Mr. Levy personally that Baer Air, Inc. was 

requesting a hearing in this matter pursuant to 14 C.F.R. § 13.35. See !d. at ~9. 

9. Moreover, Agency counsel was advised that Baer Air was, at all relevant times, represented 

in this matter by Mr. Levy as counsel of record. See !d. at ~I 0. 

10. Even though Agency counsel was aware of Mr. Levy's representation ofBaer Air in this 

matter, Mr. Levy did not receive from the FAA a copy of the Final Notice of Proposed Civil 

Penalty dated March 5, 2014. See !d. at ~11. 

11. On March 26, 2014, Mr. Levy 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, Colorado, and had discovered an unopened envelope containing the Final Notice of 

Proposed Civil Penalty, which had been addressed to him personally and delivered during his 

absence on or about March 10, 2013. See !d. at ~12. 

12. Since Baer Air was represented by counsel in this matter, at all relevant times, it was 

understood by Baer Air, Inc. and Mr. Levy that all communications from the FAA 

concerning this matter, including a Final Notice of Proposed Civil Penalty, would be served 

upon and directed to the attention of Mr. Levy. See !d. at ~13. 

13. Nevertheless, Agency counsel, without good cause, failed to serve a copy of the Final Notice 

of Proposed Civil Penalty upon Mr. Levy, as counsel of record for Baer Air. 

14. Immediately after being informed of the Final Notice of Proposed Civil Penalty by Baer Air, 

Mr. Levy contacted Agency counsel to advise him again that Baer Air, Inc. was requesting a 

hearing in this matter pursuant to 14 C.F.R. § 13.35. See !d. at ~14. 

3 
15. On March 26, 2014, Baer Air, Inc., proceeding prose, filed a request for hearing in this 

matter pursuant to 14 C.P.R.§ 13.35. See Exhibit B, attached hereto. 

16. Thereafter, on March 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 "Motion To Dismiss For Failure To State A Claim (i.e., the present motion)." 

ARGUMENT 

I. The Federal Aviation Administration Waived Its Opportunity To Challenge The 

Timeliness Of Baer Air's Request For a Hearing. 

Once the Agency counsel filed a Complaint in this matter, the Agency waived its 

opportunity to challenge the timeliness ofBaer Air's request for a hearing. Clearly, the plain 

language of the Ru1es of Practice establish that instead of filing a complaint the Agency may file 

a motion to dismiss the request for hearing. As such, the plain language of the Ru1es of Practice 

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 of the complaint with 

the hearing docket clerk, or may file a written motion pursuant to§ l3.218(f)(2)(i) ofthis 

subpart instead of filing a complaint, not later than 20 days after receipt by the agency 

attorney of a request for hearing. 

14 C.P.R. § 13.208(a) (emphasis added). 

Furthermore, Section 13.218(f)(2)(i) entitled Motion to dismiss a request for a hearing 

states the following: 

4 
An agency attorney may file a motion to dismiss a request for a hearing instead of filing 

a complaint. If the motion to dismiss is not granted, the agency attorney shall file the 

complaint and shall serve a copy of the complaint on each party not later than 10 days 

after service of the administrative law judge's ruling or order on the motion to dismiss. If 

the motion to dismiss is granted and the proceedings are terminated without a hearing, the 

respondent may file an appeal pursuant to§ 13.233 of this subpart. If required by the 

decision on appeal, the agency attorney shall file a complaint and shall serve a copy of 

the complaint on each party not later than l 0 days after service of the decision on appeal. 

14 C.P.R.§ 13.208(a) (emphasis added). 

In FAA v. HarbonAirlines, FAA Docket No. CP96NM0250 (1996 FAA LEXIS 1534) 

(1996), the Court1 denied the Agency's motion to dismiss because the Agency had already filed 

its Complaint. In Harbon Airlines, the Agency filed a Complaint and, at the same time, filed a 

motion to dismiss the request for a hearing pursuant to section 13.218(f)(2)(i), based upon the 

respondent's alleged failure to file a timely appeal of the final notice of proposed civil penalty. 

In denying the motion to dismiss, the Court held that "[ o ]nee the agency filed the Complaint, it 

effectively waived it's right to challenge the timeliness of the request for hearing." Order 

Denying Motion to Dismiss at 1. The Court reasoned that "Section l3.218(f)(2)(i) states that the 

agency may file a 'motion to dismiss a request for a bearing instead of filing a Complaint." 

I d. (emphasis in original). 

Similar to Agency counsel in the Harbon Airlines case, Agency counsel in the present 

matter, waived the opportunity to challenge the timeliness of Baer Air's request for hearing by 

filing the Complaint instead of filing a motion to dismiss the request for hearing. There is no 

dispute that the record reflects a Complaint in this matter was filed on March 31, 2014, and a 

"corrected Complaint" filed on April4, 2014. Baer Air answered the corrected Complaint on 

April14, 2014. It was not until May 1, 2014, that the Agency filed its motion to dismiss the 

request for hearing. 

1

"14 C.P.R.§ 13.2330)(3) provides that decisions by judges are not precedent unless they are 

5 
Allowing the Agency to challenge the timeliness of Baer Air's request for hearing after 

the Complaint has 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 of undersigned counsel to review the Enforcement 

Investigative Report (EIR), file an Answer and Affirmative Defenses, in addition to conducting 

motion practice to set the hearing location in this matter. These resources would not have been 

expended had Agency counsel properly filed a motion to dismiss Baer Air's request for hearing 

instead of filing the Complaint, as the Rules of Practice dictate. 

Accordingly, the Agency's motion to dismiss Bear Air's request for hearing must be 

denied as improper because 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 of Practice provide that when an Agency attorney files a motion to dismiss a 

request for hearing under Section 13.218(f)(2)(i), instead ofthe complaint, the motion to dismiss 

must be filed within 20 days after receipt by the Agency attorney of the request for hearing. In 

the present case, the Agency attorney waited thirty-six (36) days after receiving Baer Air's 

request for hearing before filing a motion to dismiss. Therefore, the Agency's motion must be 

denied as untimely. 

It is well established that even if the request for hearing is untimely, the Agency's failure 

to file a motion to dismiss the request for hearing within the 20-day filing period of Section 

13.208(a), will result in the motion being denied as untimely. Specifically, "[f]ailure to timely .. 

. move to dismiss the request for hearing will not be excused absent a demonstration of good 

cause and could result in . . . denial of the motion to dismiss the request for hearing. " See In the 

6 
Matter of Aero-Weld, Inc. FDMS No. FAA-2012-0909 (2013 FAA LEXIS 30) (2013). See also 

FAA v. Tony Rizzuto, FAA Docket No. CP98WP0057, (1999 FAA LEXIS 1036) (1999) (Chief 

ALJ denying as untimely Agency's motion to dismiss request even though the request for 

hearing was "not timely or carefully articulated"). 

Furthermore, "[ s ]ince the administrative law judge, not the agency attorney, determines 

whether a request for hearing was late-filed, the 20-day period established by § 13.208(a) applies 

whether requests appear to be timely or late filed." FAA v. Tony Rizzuto, FAA Docket No. 

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 Ray Houston, FAA Order 94-37 (1994). 

Here, there can be 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 Baer Air 

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 of service, is dated May 1, 

2014. Therefore, the Agency's motion was filed thirty-six (36) days after Agency counsel 

received Baer Air's request for hearing. As such, the Agency's motion to dismiss is untimely 

pursuant to Section 13.208(a), and must be denied. 

Significantly, the Agency's motion to dismiss fails to offer, let alone demonstrate, any 

good cause for the significant delay. In any event, the service of an Order Assessing Civil 

Penalty in this matter, on the same day that the Agency received Baer Air's request for hearing, 

is not good cause to excuse the Agency's lack of diligence in filing the motion to dismiss. In 

fact, "[t]he issuance of an Order Assessing Civil Penalty does not relieve the FAA of its duty to 

file a complaint or motion under§ 13.208(a) after it receives a request for hearing." FAA v. Tony 

Rizzuto, FAA Docket No. CP98WP0057, (1999 FAA LEXIS 1036) (1999) (citing In the Matter 

7 
of Ben Rayner, FAA Order 95-19 (1995) and In the Matter of Ray Houston, FAA Order 94-37 

(1994). 

Likewise, as set-forth above, the Agency's filing of its Complaint waived any opportunity 

to challenge the timeliness ofBaer Air's request for hearing. Moreover, the improper practice of 

filing the Complaint prior to a motion to 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 established by Section 13.218(f)(2(i). Furthermore, as no good cause exists to 

justifY the Agency's improper and unreasonable delay, the motion to dismiss Baer Air's request 

for hearing must be denied. 

III. Good Cause Exists For Baer Air's Belated ProSe Request For Hearing. 

A close examination of all the circumstances of this case demonstrates that good cause 

exists for Baer Air's belated prose request for hearing because Baer Air, Inc. had taken all 

appropriate measures to protect against the danger of default in this matter. Specifically, Baer 

Air retained Jeffrey L. Levy, as counsel, to represent the company in this matter. Furthermore, 

Mr. Levy properly sent notice of his representation to Agency counsel, and met in person with 

Agency counsel to conduct the informal conference ofthis matter. At all relevant times, William 

Baer, President ofBaer Air, was kept apprised of the progress of this matter by and through Mr. 

Levy, as counsel. Accordingly, Mr. Baer did not know, and had no reason to know, that 

approximately six ( 6) months after Mr. Levy attended the informal conference with Agency 

counsel, a Final Notice of Civil Penalty, addressed to him personally, would be sent to his office 

while he was away flight training in Denver, CO. Furthermore, Mr. Baer did not know, or have 

8 
reason to know, that Agency counsel would not also send a copy of the Final Notice of Civil 

Penalty to Mr. Levy, as Baer Air's counsel of record. 

"The Administrator has held that an untimely request of hearing will be excused only if 

good cause is sllown." In the Matter of Ryan International Airlines, FAA Order No. 2000-2 at 3 

(2000). "The facts of each case must be evaluated to determine if good 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 brief to the National 

Transportation Safety Board instead of to the FAA Hearing Docket Clerk). 

The facts of the present case establish that good cause exists to excuse Baer Air's belated 

request for hearing because Baer Air relied upon its counsel to communicate with the Agency, 

and unbeknownst to both Baer Air and its counsel, Agency counsel sent the Final Notice of 

Proposed Civil Penalty only to William Baer, as President of Baer Air, Inc., approximately six 

( 6) months after the informal conference. Furthermore, Agency counsel, without good cause, 

failed to copy Mr. Levy, as Baer Air's counsel of record, even though Agency counsel knew that 

Mr. Levy was the only representative for Baer Air to attend the informal conference. 

The record is clear that prior to issuing the Final Notice of Proposed Civil Penalty, 

Agency counsel was advised that Baer Air was represented by counsel in this matter, and that 

Baer Air would request a formal hearing in this matter if a settlement agreement was not reached 

at the informal conference. Further, it is undisputed that on July 15,2013, Mr. Levy, as counsel 

for Bear Air, sent a notice of representation to Agency counsel, Vincent Bennett, Esq. 

On September 18,2013, Mr. Levy attended an informal conference in person at the FAA 

Office of Regional Counsel, New England Region, with Vincent Bennett, Esq., to discuss a 

settlement concerning the above-referenced Notice of Proposed Civil Penalty. See !d. at ~5. 

9 
Mr. Levy was the only representative ofBaer Air to attend the informal conference on 

September 18,2013. See Id at ~6. 

During the informal conference, Mr. Levy advised Mr. Bennett that Baer Air was 

requesting a formal hearing in this matter in accordance with Part 13 of the Federal Aviation 

Regulations, if a settlement agreement was not reached. See !d. at ~7. No settlement agreement 

was reached during or after the informal conference. See ld at ~8. 

As such, Agency counsel had been advised by Mr. Levy personally that he represented 

Baer Air, and that Baer Air was requesting a hearing in this matter. See !d. at ~9 & ~1 0. 

Nevertheless, even though Agency counsel had knowledge of Mr. Levy's role as counsel of 

record for Baer Air in this matter, Agency counsel, without good cause, failed to serve Mr. Levy 

with a copy of the Final Notice of Proposed Civil Penalty dated March 5, 2014. See !d. at ~11. 

On March 26,2014, Mr. Levy was advised by William Baer, President ofBaer Air, that 

he had returned to his office on that day, after an extended absence for flight training in Denver, 

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

Civil Penalty, which had personally addressed to him and delivered during his absence on or 

about March 10,2013. See Id at ~12. 

Since Baer Air was represented by counsel at all relevant times, it was understood by 

both Mr. 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 has been 

found when 'respondents may have been confused by technical requirements of these 

proceedings."' In the Matter of Mary E. Bochiardy, FAA Docket No. F AA-2013-0853 (2014 

FAA LEXIS 88) (2014) (quoting In re Robert W Wiedle, FAA Docket No. CP99WP0015, Order 

of Acting Chief ALJ (2000)). 

10 
Here, there was nothing to suggest to Mr. Baer that six (6) months after Mr. Levy 

attended the informal conference in this matter, a Final Notice of Civil Penalty would arrive at 

Mr. Baer' s office during his absence, or that Agency counsel would not to send a copy ofthe 

Final Notice of Proposed Civil Penalty to Mr. Levy, as Baer Air's counsel of record. 

Significantly, after becoming aware ofthe Final Notice of Proposed Civil Penalty, Baer 

Air, proceeding pro se, immediately filed its request for hearing. See Exhibit B, attached hereto. 

As such, Baer Air took immediate action to cure the default in its untimely request for hearing 

pursuant to 14 C.P.R.§ 13.35 on March 26, 2014. Therefore, good cause exists for the one-day 

delay. See In the Matter of Safety Equipment and Sign Co., Ltd FAA Order No. 92-76 (1992) 

(FAA Administrator considered Respondent's actions to promptly to cure the default upon 

learning of it in fmding good cause existed for delay in filing Answer). Likewise, after being 

informed ofthe Final Notice of Proposed Civil Penalty by Baer Air, Mr. Levy contacted Mr. 

Bennett to advise him again that Baer Air was requesting a hearing in this matter. See Id at ~14. 

Finding good cause to excuse Baer Air's belated request for hearing will not prejudice the 

Agency. In fact, the Agency counsel has not claimed that any prejudice will occur if the motion 

to dismiss the request for hearing is denied, nor can he. See In the Matter of Safety Equipment 

and Sign Co., Ltd FAA Order No. 92-76 (1992) (FAAAdministrator considered lack of 

prejudice to Agency in finding good cause existed for delay in filing Answer) (citing FDIC v. 

Francisco Investment Corporation, 873 F.2d 474,479 (1st Cir. 1989), considering whether the 

non-defaulting party had been prejudiced by the default, and stating that the issue was not mere 

delay, but rather its accompanying dangers: loss of evidence, increased difficulties of discovery, 

or an enhanced opportunity for fraud or collusion). See also In the Matter of Cornwall, FAA 

Order No. 92-4 7 (1992) (FAA Administrator found good cause for a respondent's late answer as 

11 
respondent acted quickly upon learning of error to cure the default, and as respondent's late 

answer was filed early in the proceedings, the Agency had not been prejudiced by 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 Order No. 98-4 at 7 (1998); In the Matter of 

Safety Equipment and Sign Co., Ltd., FAA Order No. 92-76 at 5 (1992); In the Matter of David 

Lloyd Cornwall, FAA Order 92-4 7 at 7 (1992) ("Wherever possible, cases should be disposed of 

on the merits after a hearing, rather than summarily because of a procedural defect."). 

Accordingly, a close examination of all the circumstances in this case demonstrates that 

good exists for Baer Air's belated pro se request for hearing, because Baer Air had taken all 

appropriate measures to protect against the danger of default in this matter. As such, the 

Agency's motion to dismiss should be denied. 

CONCLUSION 

As set forth above, the Agency's motion to dismiss Baer Air's request for hearing is 

improper and untimely pursuant to Sections 13.208(a) and 13.218(f)(2)(i) of the Rules of 

Practice. For these reasons, Baer Air respectfully requests that the Honorable Administrative 

Law Judge deny the Agency's motion to dismiss the request for hearing, or, in the 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 w Firm 

,0ne Rese Court, Suite 450 

/Rockville, MD 20850 

Tel: (301) 294-8550 

Fax: (866) 568 9886 

Counsel for Respondent 

13 
EXHIBIT A 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

BAER AIR, 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 of the following facts and 

events, and I make the following statements under the penalties of perjury. 

2. I am an attorney admitted to practice law in the Commonwealth of Massachusetts and the 

State of Minnesota, with an office located in Providence, Rhode Island. 

3. At all times relevant herein, I was counsel for Baer Air, Inc., concerning a Notice of 

Proposed Civil Penalty dated April30, 2013, Federal Aviation Administration ("FAA") Case 

No. 20llSOl50234, concerning an alleged violation of the Federal Aviation Regulations. 

4. On July 15, 2013, I sent via electronic mail, a notice of my representation ofBaer Air, Inc. 

concerning the above-referenced Notice of Proposed Civil Penalty to Vincent Bennett, Esq., 

agency counsel. The communication stated the following, in part: 
Dear Mr. Bennett, 

I represent Baer Air, Inc. in connection with the Notice of Proposed Civil Penalty in 

FAA Case No. 2011S0150234. 

See Exhibit A at page 3, attached hetero. 

5. On September 18,2013, I attended an informal conference in person at the FAA Office of 

Regional Counsel, New England Region, with Vincent Bennett, Esq., to discuss a settlement 

concerning the above-referenced Notice of Proposed 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. Bennett that Baer Air, Inc., was requesting a 

formal hearing in this matter in accordance with Part 13, Subpart G of the Federal Aviation 

Regulations, if a 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 by me personally that Baer Air, Inc. was 

requesting a hearing in this matter. 

10. Moreover, agency counsel was advised that Baer Air, Inc. was represented in this matter by 

me as counsel. 

11. Even though agency counsel was aware of my representation ofBaer Air, Inc. in this matter, 

I did not receive from the FAA a copy of the Final Notice of Proposed Civil Penalty dated 

March 5, 2014. 

12. On March 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 had been delivered during his absence on or about March 10,2013. 

· 13. As Baer Air, Inc. was represented by counsel in this matter, it was understood by Baer Air, 

Inc. and myself that all communications from the FAA concerning this matter would be 

directed to my attention. 

14. Immediately after being informed of the Final Notice of Proposed Civil Penalty, 1 contacted 

Mr. Bennett to advise him again that Baer Air, Inc. was requesting a hearing in this matter. 

See Exhibit C. 

15. On Mareh 26, 2014, Baer Air, Inc., proceeding prose, filed a request fur hearing in this 

matter pursuant to 14 C.F.R. § 13.35. 

!6. I am competent to testify as to the matters stated herein. 

,ESQ. 

3 
Affidavit of Jeffrey L. Levy, Esq. 

EXHIBIT A 
Jared 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 you then. 

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. 

1 
Regards, 

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 of touch. I have been trying to coordinate schedules with Bill Baer, which 

has been challenging. In the end, I will just come in to see you without him for the informal. Do 

you have any availability on August 14th? 

Thanks 

Jeff 

On Jul17, 2013, at 9:46AM, Jeff Levy <jefflevy18@me.com> wrote: 

Vince, 

He is still in training on the 12th and 13th, check ride on the 14th. I'll give you a call. What is 

your number? 

Jeff 

On Jul17, 2013, at 8:32AM, Vincent.Bennett@,faa.gov wrote: 

2 
Jeff: 

So the 12th is good? Your client seems available. He can be here and back in plenty oftime. 

If this 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, 

Date: 07/15/2013 05:36PM 

Subject Re: Case No. 201180150234 

Mr. Bennett, 

Thanks for getting back to me. Unfortunately, the week of August 12 is only four weeks away 

(the summer is flying by). Mr. Baer tells me his check ride is in Denver is August 14, and I 

leave for Europe on the 16th. Is there any possibility we can push it to the week of 9/9? 

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 of August 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 

3 
correspondence 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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Checked by A VG- www.avg.com 

Version: 2013.0.3469/ Virus Database: 3722/7480- Release Date: 05/12/14 

4 
Affidavit of Jeffrey 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 

Begin forwarded 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: Baer Air, 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, 

1 
Date: ·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 in the 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 also just scheduled something for the morning of 9/26 so that is out. The rest of the week is still OK with the 

exception of the 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, 

2 
Date: 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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Checked by AVG- www.avg.com 

Version: 2013.0.3469 I Virus Database: 3722/7480- Release Date: 05112114 

3 
Affidavit of Jeffrey 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: Baer Air 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. 

1 
While 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 if you 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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Checked by AVO- www.avg.com 

Version: 2013.0.3469 I Virus Database: 3722/7480- Release Date: 05/12/14 

2 
EXHIBIT B 
Mr. 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 of the 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 hearing to 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 of the foregoing RESPONDENT'S ANSWER AND MEMORANDUM IN OPPOSITION TO 

THE AGENCY'S MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM 

addressed to: 

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 2Wl 000 

And, further, that I have this date sent by U.S. Mail, postage prepaid, a copy of the foregoing 

addressed to: 

ONE COPY 

Vincent Bennett 

Office of the Regional Counsel, ANE-7 

12 New England 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 of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey 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 Law Firm 

0 Research Court, Suite 450 

Rockville, MD 20850 

Tel: (301) 294-8550 

Fax: (866) 568-9886