U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

/( 

/^• ' ' 

IN THE MATTER OF 

SCENIC AVIATION, INC. 

FAA Docket No. CP09NM0011 

(Civil Penalty Action) 

DMSNo. FAA-2009-0974 

The Honorable Richard C. Goodwin IS 

Administrative Law Judge <^^ 

Hearing Location: Salt Lake City, UT - ,/^ 

— 1 

AMENDED AFFIRMATIVE DEFENSES £5 

COMES NOW, Scenic Aviation, Inc. (hereinafter "SCENIC AVIATION"), by and 

through undersigned counsel and hereby Amends its Affirmative Defenses filed in this matter. In 

support thereof. Scenic Aviation states the following: 

AFFIRMATIVE DEFENSES 

1. In determining the civil penalty amount, the Complainant has failed to consider (1) the 

nature and circumstances of the violation; (2) the extent and gravity of the violation; (3) the 

respondent's degree of culpability; (4) the respondent's history of prior violations, if any; 

(5) the respondent's ability to pay the civil penalty; (6) the effect on the entity's ability to 

stay in business; and (7) other matters as justice may require. See 49 U.S.C. §46301(e)(2); 

See also Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6, 2008), p. 11. 
2. In determining the civil penalty amount, the Complainant has failed to determine whether 

the violation was inadvertent or deliberate. 

3. In determining the civil penalty amotmt, the Complainant has failed to consider the 

Respondent's size, particularly in determining the alleged offender's ability to absorb the 

sanction. 

4. The proposed civil penalty fails to reflect the totality of the circumstances surrounding the 

violations. See Folsom's Air Service, Inc., FAA Order No. 2008-11 (November 6,2008), p. 

12; Eastern Air Center, Inc., FAA Order No. 2008-3 (January 28,2008). 

5. Scenic Aviation does not have the financial ability to pay the proposed civil penalty. 

6. The proposed civil penalty would have a detrimental effect on the ability of Scenic 

Aviation to continue doing business. 

7. Count II, allegation number 9 of the Complaint concerns allegations of an incident that 

occurred more than 2 years before the agency attorney issued a Notice of Proposed Civil 

Penalty to Scenic Aviation, and therefore, should be dismissed as untimely in accordance 

with 14 C.F.R.§ 13.208(d). 

8. Respondent relies upon the affirmative defense of reasonable reliance. 

9. The Federal Aviation Administration's (FAA's) interpretation of its Federal Aviation 

Regulations in this case is arbitrary, capricious, an abuse of discretion, or otherwise not in 

accordance with law. See 5 U.S.C. § 706(2) (A); Watkins v. NTSB, 178 F.3d 959,961 (8th 

Cir. 1999). 
10. The FAA's interpretation of its aviation regulations is unconstitutionally vague. See 

Thomas v. Hinson, lA F.3d 888, 889 (8th Cir. 1996); see also Trans States Airlines, 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 of its Federal Aviation Regulations in this case is contrary to the 

regulation's plain language. SeeAdvanta USA, Inc. v. Chao, 350 F.3d 726, 728 (8th Cir. 

2003), quoting Gardebringv. Jenkins, 485 U.S. 415,430,108 S. Ct. 1306,99 L. Ed. 2d 515 

(1988). See also Trans States Airlines, Inc. v. FAA, 439 F.3d 863, 864-865 (8th Cir. 2006). 

12. Respondent asserts that the Complainant has failed to state a claim upon which the relief 

requested may be granted. 

13. Respondent asserts that the Complainant lacks substantial basis in law and fact to continue 

prosecution of this matter against it. 

Dated: May 28, 2010 

RespectfiiUy^Submifted, 

CMGORY S. WINTON, ESQ. 

Lviation Law Experts, LLC 

330 Aviation Way 

Frederick, MD 21701 

Tel: (301) 294-8550 

Fax:(301)294-2525 

Greg(a),AviationLawExperts.com 

Counsel for Respondent 
CERTIFICATE OF SERVICE 

I hereby certify that I have this date served by regular U.S. mail, postage prepaid, an original and 

one (1) copy of the foregoing Amended Affirmative Defenses addressed to: 

Attention: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Suite 2W1000 

Washington, D.C. 20591 

And, further, that I have this date served via facsimile and regular U.S. mail, postage prepaid, a 

copy of the foregoing Amended Affirmative Defenses addressed to: 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

Tel: 202-366-2139 

Fax: 202-366-7536 

Scott R. Morris, Esq. 

Office of Regional Counsel, ANM-7 

FAA Northwest Mountain Region 

1601 Lind Avenue, SW 

Renton, WA 98057 

Tel: 425 227-1417 

Fax:425 227-1007 

Dated: May 28, 2010 

JREGORY S. WINTON, ESQ. 

Aviation Law Experts, LLC 

330 Aviation Way 

Frederick, MD 21701 

Tel: (301) 294-8550 

Fax:(301)294-2525