In The Matter Of: 

SERVED: OCTOBER 24, 2013 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

W ASIDNGTON, DC Zili1 ncr 2s A~ s= 32 

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Docket No. FAA-2013-0284 

AVIATION ENGINEERING 

CONSULTANTS, INC. 

Respondent 

Case No. 2012CE440003 

ORDER DENYING RESPONDENT'S MOTION TO DISMISS 

AND GRANTING/DENYING OTHER RELIEF 

On July 16, 2013, an Order Granting the Respondent's Motion for a More Definite 

Statement in Part, and Granting/Denying Other Relief was filed. Among other things, this Order 

set a deadline of July 31, 2013, for the Federal Aviation Administration ("FAA") to file a more 

definite statement or amended complaint, and a deadline of August 30,2013, for the Respondent, 

Aviation Engineering Consultants, Inc. ("Respondent") to file an answer to, or motion requesting 

relief from, the amended complaint. 

On July 31,2013, the FAA filed its Amended Complaint. 

On August 30, 2013, the Respondent filed a Motion to Dismiss for Failure to Join 

Indispensable Party ("Motion"). 

On September 13, 2013, the FAA filed Complainant's Response in Opposition to 

Respondent's Motion to Dismiss for Failure to Join Indispensable Party ("Response"). 

On September 17, 2013, the Respondent filed Respondent's Reply to Complainant's 

Response in Opposition to Respondent's Motion to Dismiss for Failure to Join an Indispensable 

Party and Request for Telephonic Status Conference ("Reply"). 

Legal Standard 

In its Motion, the Respondent provides a legal citation only to 14 C.F.R. § 218(f)(2)(ii)-

a rule which allows for filing a motion to dismiss in lieu of an answer. It is noteworthy that the 

Respondent provided no reference to any regulatory authority or caselaw governing the general 
concept of joinder in administrative proceedings, or any argtiment that such general concepts 

regarding party joinder should be extended to FAA civil penalty proceedings. 

The Rules of Practice, 14 C.P.R. part 13, subpart G, provide for the voluntary 

intervention of a party to protect the intervener's interests. The Rules do not provide, however, 

any instruction on party joinder. This may be because the concept of joining indispensable 

parties is rarely recognized in administrative proceedings. The Supreme Court has held that in 

an administrative proceeding enforcing public rights, the need to join parties is minimal. 

National Licorice Co. v. NLRB, 309 U.S. 350 (1940). 

In National LicoriCe, 309 U.S. 350, the Court found that the National Labor Relations 

Board ("Board") had the authority to prohibit an employer from engaging in unfair labor 

practices, without joining the impacted employees as parties to the proceeding. !d. The Court 

emphasized that the Board's administrative proceedings were different from litigation involving 

private rights. The Board "acts in a public capacity to give effect to the declared public policy of 

the Act." !d. at 362. The only necessary party was the employer charged with an unfair labor 

practice. Because the Board's proceedings were "narrowly restricted" to the "protection and 

enforcement of public rights," the Court found that there was "little scope or need for the 

traditional rules governing the joinder of parties." !d. at 3 63. 

However, this concept is not universal to all administrative proceedings. Indeed, in some 

limited circumstances, administrative tribunals have looked to Federal Rule of Civil Procedure 

19 for guidance in assessing the merits of a motion to join an indispensable party in civil penalty 

proceedings, when the tribunal's own rules of practice have not specifically provided for joinder. 

See e.g., In re Carbon Injection Systems LLC, et al., Docket No. RCRA-05-2011-0009, 2012 WL 

756519 at *4, Order of ALJ (Feb. 14, 2012) (Although the EPA rules of practice do not provide 

for impleading, Fed. R. Civ. P. 19 can be used as guidance.); cf In re Delaware Skyways, LLC, 

FAA Order No. 2005-6 at 7 fn. 12 (Mar. 18, 2005) ("Although the Federal Rules ofCivil 

Procedure are not binding in this forum, the Administrator may refer to them for guidance.") 

Federal Rule of Civil Procedure 19(a) provides in relevant part: "A person who is subject 

to service of process and whose joinder will not deprive the court of subject-matter jurisdiction 

must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief 

among existing parties[.]" If a party is found to be necessary under Rule 19(a) and joinder is 

feasible, i.e. it does not defeat jurisdiction or venue, the party is joined to the proceeding. If a 

party is found to be necessary under Rule 19( a), but joinder is not feasible, Rule 19(b) is used to 

determine whether the proceeding can continue without the party, or whether the party is 

indispensable and the proceeding must be dismissed. 

Page 2 of6 
Analysis 

The Respondent's Motion in unpersuasive, whether reviewed under the National Licorice 

or the Rule 19(a) standard. 

The analysis applied to the Board in National Licorice is similarly applicable to FAA 

civil penalty proceedings. In these proceedings, the FAA acts in a public capacity to give effect 

to the Federal Aviation Act of 1958, as amended, and other statutes. Airport and Airway Safety 

and Capacity Expansion Act of 1987, Pub. L. 100-223 § 204(g), 101 Stat. 1486, 1520 (1987) 

(providing civil penalty authority to the Administrator). The immediate object for the FAA in 

bringing the enforcement action is to protect the safety of the flying public in accordance with its 

statutory mandate. Federal Aviation Act of 1958, Pub. L. 85-726, § 601(a) (1958) ("The 

Administrator is empowered and it shall be his duty to promote safety of flight in civil air 

commerce[.]"). The only parties necessary to achieve this narrowly restricted goal are the FAA 

and the charged respondent, who has allegedly violated the regulations and thwarted the declared 

policy. 

In the alternative, and assuming the traditional rules governing required joinder of parties 

are applicable in this FAA civil penalty proceeding, the Respondent has failed to show that its 

proposed additional respondent, Avantair, Inc., is a necessary party under Federal Rule of Civil 

Procedure Rule 19(l:l.), let alone an indispensable party whose absence would require dismissal of 

the action under Rule 19(b ). 

For example, in the case herein, the FAA has alleged that the Respondent, and only the 

Respondent, has violated the cited regulations (Am. Compl. 2; Response 1-2, ~6). The FAA has 

proposed a $44,000 civil penalty as appropriate (Am. Compl. 2). In' response, the Respondent 

seeks a hearing on the record. Presumably the Respondent seeks either a finding that it did not 

commit the alleged violations, or in the event that violations are found, the opportunity to present 

evidence in mitigation ofthe FAA's proposed civil penalty. (Req. Hr'g 1.) 

The Respondent's argument that it "wishes to avoid total liability and monetary damages 

as against the Respondent and the 'empty chair"' (Reply 2, ~6) is unsupported by the facts as 

alleged in the Amended Complaint or the law. The question in this proceeding is whether the 

FAA's charges against the Respondent- in its production of a replacement or modification 

article- are in fact violations of 14 C.F .R. §§ 21.9(a)(2) and 21.9(b ). If any violation of public 

safety regulations is found, the Respondent is subject to a civil penalty not to exceed $11,000 per 

violation. 49 U.S.C. § 46301; Am. Compl. 5; If no violation ofpublic safety regulation is found, 

that the Respondent would not be subject to any civil penalty. This would remain true regardless 

of how many parties are joined as respondents. 

Page 3 of6 
Pursuant to Rule 19(a), existing parties in this action can be accorded complete relief 

without the joinder of Avantair, Inc. as a respondent. Avantair, Inc. is not a necessary party 

herein. 

Other Issues Raised by the Parties 

1) FAA's Allegation of"Stalling" Tactics 

In its Response, the FAA re-offered a Statement of the Case ("Statement"), which it 

previously filed with the Office of Hearings on June 10, 2013 as part of its Opposition to the 

Respondent's Motion for More Definite Statement. It should be noted that this FAA Statement 

did not outline a summary of the alleged facts supporting the charged violations in this case. 

Instead, it is a chronological summary of telephone calls, emails, and meetings between the 

parties conducted after the FAA's March 20, 2012 Notice of Proposed Civil Penalty ("NPCP") 

was filed and served upon the Respondent. 

As part of the FAA's Statement's chronological summary, the FAA points out that the 

FAA Regional Office held its first informal conference with the Respondent about the NPCP on 

December 6, 2012. However, between December 7, 2012 and March 11,2013, no action was 

taken by either party on the case. (Statement, 3). Then, on or about March 18, 2013, the parties 

appeared to have orally reached a settlement. However, no settlement actually occurred. 

(Statement, 3-4). As a result, shortly thereafter, the FAA filed its May 7, 2013 Complaint, and 

the case was referred to this tribunal for litigation. 

It is clear that no settlement occurred in the case. It is also clear that the FAA perceives 

the totality of events after its NPCP was filed, which include both the failed settlement 

negotiations and the Respondent's recent motions before this tribunal, as a "stalling" tactic by 

the Respondent. (Response, 2-3). 

Public policy supports informal resolution of disputes, and thus, private settlement 

negotiations between the parties during litigation is encouraged. Because free-flowing, informal 

discussion is often necessary to effectuate settlement, settlement negotiations are deemed 

confidential. Settlement negotiations - even when disappointing or disputed by the parties - are 

rarely ever proffered as evidence to the court, and only under very narrow exceptions. In 

particular, it is a long-standing legal policy that settlement negotiations may never be offered by 

an opposing party as evidence to prove the validity of a claim. Federal Rule of Evidence 408; 

Stephen A. Saltzburg; Michael M. Martin; Daniel J. Capra, Federal Rules of Evidence Manual, 

§408.02 (May 2013). 

In the case herein, the FAA's Statement serves only to show that the parties failed to 

reach a settlement. There is no evidence to show that the informal conference or the subsequent 

negotiations, set up and overseen by the FAA's Regional Office before filing a formal 

Page 4 of6 
Complaint, took an inordinate amount of time in comparison to other cases supervised by the 

FAA's Field Administrator. There is also no evidence that the Respondent's time requests were 

unusual. In fact, it appears that the parties worked amicably in setting mutually convenient time 

periods for discussing settlement. This can hardly be considered, in retrospect, as a "stalling" 

tactic engaged in by only the Respondent. 

Subsequently, once the FAA filed a formal Complaint on May 7, 2013, the parties 

quickly proceeded to litigation before the Office of Hearings. The record shows that this case 

was assigned to a Judge on May 23,2013. Fifteen days later, on June 3, 2013, the Respondent 

filed a Motion for More Definite Statement. That Motion was granted, over objection, on July 

16, 2013. Pursuant to the July 16, 2013 Order, the FAA filed an Amended Complaint on July 31, 

2013. Thereafter, the parties informally conferred, and the FAA declined to agree to the 

Respondent's informal request to extend the time for filing an Answer to the Amended 

Complaint. (Response, 3; Reply, 2). Thus- not surprisingly- the Respondent then filed on 

August 30,2013, its Motion to Dismiss herein. 

This sequence of events does not appear to demonstrate "stalling" by the Respondent. 

Indeed, each party has demonstrated in its recent filings that each is engaged in active and timely 

litigation. While the FAA may disagree with the Respondent's particular choice of motion (e.g., 

motion to dismiss v. motion for extension of time, etc), these are choices that are legally 

available to parties pursuant to the Federal Aviation Regulations, and such choices should be 

considered by a party representative in consultation with his/her client. 

The FAA correctly notes that the Respondent's Motion to Dismiss lacks legal authority 

or discussion. This certainly lends credence to the FAA's argument that the Respondent's 

Motion should be denied. It does not, however, automatically lead to the conclusion that the 

Respondent is "stalling." While there are certainly times when a party in litigation begins to 

demonstrate, through a pattern of actions, an attempt to delay or avoid trial, the facts herein do 

not rise to such a pattern. 

2) Respondent's Allegations of Prejudice and Request for Telephone Conference 

In its Reply, the Respondent argues that the FAA's submission of a newspaper clipping 

(FAA's Response Exhibit A), as well as the FAA's speculative arguments regarding the 

Respondent's motivations, are both "highly prejudicial" and "undermine the Respondent's hope 

for a fair and impartial proceeding." (Reply 3.) In addition, the Respondent requests a telephone 

hearing, to discuss "other concerns raised." (Reply 3.) The Respondent did not, however, 

identify what topics needed discussion, other than ruling on the issues raised in this Motion. 

Page 5 of6 
It should be understood that pursuant to 14 C.F.R. §13.223, the FAA is the party with the 

burden of proof. As such, it is the FAA's burden to prove its case (absent settlement or 

disposition on motion) by the presentation of"reliable, probative, and substantial evidence" at a 

hearing. 14 C.F .R. § 13.223. This administrative court will then consider such evidence, as 

contained in the hearing record, in order to issue a decision. 14 C.F .R. § 13.223. 

The Respondent may be assured that the newspaper clipping filed by the FAA (FAA's 

Response Exhibit A) has not prejudiced this trier of fact, or undermined the Respondent's hope 

for a fair and impartial hearing .. Only if a party moves for the admission of the newspaper 

clipping at the hearing, and such motion for admission is granted, will the hearsay information 

contained in the clipping be considered as evidence. Even then, such information is limited by 

weight, given its hearsay nature. 14 C.F.R. §13.222(c). 

Pursuant to 14 C.F.R. §13.205, §13.209 and §13.218, and after reviewing all pleadings 

and documents, as well as all relevant caselaw, decisions, regulation, statutory authority, and 

being fully advised; 

IT IS HEREBY ORDERED: 

1) The Respondent's Motion to Dismiss for Failure to Join Indispensable Partyis denied. 

2) The Respondent's Motion for a telephone hearing on other issues is denied. 

3) On or before November 15,2013, the Respondent shall file an Answer to the Amended 

Complaint. 

4) Upon receipt of the Respondent's Answer, a separate order will issue directing the parties 

to engage in a Rule 26(f) Scheduling and Discovery Plan, as well as setting a prehearing 

Rule 16 Telephone Conference. 

Attachment: Service List 

Page 6 of6 
FDMS No. FAA-2013-0284 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 0001 

Mr. Mark G. Camacho 

Complainant's Counsel 

ONE COPY 

Senior Enforcement Attorney, Central Region, ACE-7 

Federal Aviation Administration 

Room 506, DOT Building, 901 Locust St. 

Kansas, MO 64106-2641 

TEL: 816-329-3765 

FAX: 816-329-3771 

Mr. Douglas J. Barnard 

Respondent's Counsel 

14695 Airport Parkway, 2nd Floor 

Clearwater, FL 33762 

TEL: 727-259-0224 

FAX: 727-259-0223 

E-MAIL: dougb@planelaw.com 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-2132 

FAX: 202-366-7536 

Mr. Kamran Rouhani 

Respondent 

Aviation Engineering Consultants, Inc., 

2750 Sunset Point Road 

Clearwater, FL 33759 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation 

Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591; 

Attention: Hearing Docket Clerk, AGC-430.