In The Matter Of: 

WOOLPERT LLC 

Respondent 

SERVED: June 3, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEAIUNGS 

WASHINGTON, DC 

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Docket No. F AA-20 15-0211 

Case No. 2013EA250068 

ORDER DENYING 

THE FAA'S MOTION TO DISMISS 

1' 

On March 4, 2015, the Respondent, Woolpert LLC, served the FAA with a Request for 

Hearing pursuant to 14 C.F.R. § 13.16 ("Request"). 

On March 23,2015, the FAA filed with the Office of Hearings ("OI-l") the Respondent's 

Request, as well as the FAA's Motion to Dismiss ("Motion") and a Notice of Appearance. 

On March 31,2015, the Respondent filed Respondent's Answer to the FAA's Motion to 

Dismiss Respondent's Request for Hearing Pursuant to 14 C.F.R. § 13.16 ("Response"). 

On April 1, 2015, a Notice ofProceeding was filed, which assigned this case to the 

undersigned. 

A. Undisputed Factual Background 

It was undisputed that on June 18, 2014, the FAA served the Respondent, Woolpert LLC, 

with a Notice of Proposed Civil Penalty ("NPCP"). (Mot. 1; Resp. 1; Resp. Exh. 1.) The NPCP 

alleged that on or about July 31, 2013, the Respondent had committed multiple violations of the 

Federal Aviation Regulations. The NPCP further proposed a total civil penalty of $7,000. (Resp. 

1; Resp. Exh. 1). 

On June 23, 2014, the Respondent received the NPCP. (Mot. 2, Att. C.) Two days later, 

on June 25, 2014, the Respondent timely requested an informal conference (Mot. 1; Resp. 5 and 

Exh, 2). Although the informal conference was initially scheduled for August 6, 2014 (Resp. 
Exh. 3), it appears that the parties may have actually participated in the informal conference on 

August 8; 2014. 1 (Mot. 1; Resp. Exh. 4.) The parties did not reach a settlement during this 

informal conference. (Mot. 1.) Three (3) w~eks later, on August 29,2014, the Respondent 

provided the FAA with some additional written information about the allegations. (Resp. 5; 

Resp. Exh. 4.) One· (1) week later, on September 5, 2014, the FAA notified the Respondent by 

email that it would "proceed with issuing the final notice" unless the Respondent wished to make 

a settlement offer. (Resp. 9-1 0; Resp. Exh. 6.) It appears undisputed that the Respondent did not 

make any settlement offers between September 5, 20 15 and January 16, 20 15. 

On January 16,2015, the Respondent provided additional information to the FAA by 

email, and requested that the FAA withdraw the NPCP. (Resp. 1 0; Resp. Exh. 6.) On February 

6, 2015 and February 17, 2015, the Respondent emailed the FAA, and requested that the FAA 

provide information on the status ofthe case. (!d.) On February 18, 2015, the FAA replied by 

email that it would respond "next week." (Resp. Exh. 6.) 

Subseque11tly, the Respondent emaileo the FAA both on February 23,2015, and February 

27,2015, and repeated its requests for a case status report. (Resp. Exh. 6.) On February 27,2015, 

the FAA emailed a status response, stating that it was "working" to get "an opinion" on the 

matter. (Id.) 

Five days later, on March 4, 2015, the Respondent served the FAA with its Request. 

(Mot. 2; Resp. 2; Resp. Exh. 5.) It was undisputed that the FAA has never issued a Final Notice 

of Proposed Civil Penalty ("FNPCP") in this action. 

B. J?AA's Motion to Dismiss 

The FAA asserts that the Respondent's March 4, 2015 Request2 should be dismissed as 

untimely. (Mot. 3.) The FAA argues that the NPCP was received by the Respondent on June 23, 

1 The FAA asserted that the parties' conference date was August 8, 2014, while the Respondent alternatively 

referred to the informal conference as having occurred on both August 6, 2014 and August 8, 2014. (Resp. at 2 and 

5). Given the totality ofthe material, the August 6, 2014 reference is presumed to be a clerical error. In any event, 

the exact date in August 20 14 that the parties convened for an informal conference is not material in ruling on this 

motion. 

2 The FAA asserted that the Respondent filed "a demand for a hearing" on March 3, 2015. (Mot. 2.) However, the 

Respondent's service I ist, attached to its Request for Hearing, is dated March 4, 20 15. (Req. Hr' g 3; Resp. EX: h. 5.) 

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2014. (!d. at 2.) Therefore, pursuant to 14 C.F.R. § 13.16(£), the Respondent was required to file 

a request for a hearing in response to the NPCP no later than July 24, 2014. Thus, according to 

the FAA's time calculation, the Respondent's March 4, 2015 Request for Hearing was over 

seven months late. (!d.) 

C. Respondent's Opposition to Motion 

The Respondent asserts that it timely filed its Request for Hearing on March 4, 2015. It 

argues that its earlier request under 14 C.F.R. § 13.16 to participate in an informal conference did 

not affect its right to subsequently request a formal hearing. (Mot. 11.) 

D. Brief Discussion 

An FAA civil penalty action is initiated by issuing a NPCP. 14 C.F.R. § 13.16(f). A 

respondent's right to a hearing is triggered by the issuance of the NPCP (i.e., the initiation of the 

civil penalty action). 

The FAA's arguments that the Respondent was time-barred after July 24, 2014 from 

filing a request were not persuasive. In its Motion, the FAA has not proven-by legal, policy, or 

other persuasive support-why the right to a hearing, which the Respondent has otherwise 

preserved by complying with 14 C.F.R. § 13.16, cannot be asserted after the Respondent 

pa1iici pates in an informal conference but before the FAA issues a FNPCP. 

The Respondent was not required to file a request for a hearing in response to the NPCP 

no later than July 24, 2014. Instead, it was required to choose one ofthe three (3) options 

provided for in 14 C.F.R. § 13.16(£). The Respondent met that requirement by submitting a 

timely, written request for an informal conference with the agency attorney. 14 C.F.R. § 

13.16(f)(2(iii). There is nothing in 14 C.F.R. part 13, or in regulatory history, or in caselaw that 

indicates that once the Respondent opts for an informal conference under 14 C.F.R. § 13.16(£), it 

has waived its right to a hearing pending further FAA action, or that its right to request a hearing 

is barred until after the FAA issues a FNPCP. 

As a result, the FAA's asse11ion that March 3, 2015 is the date of service ofthe Respondent's Request is deemed a 

clerical error. 

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To the contrary, the commentary accompanying the FAA's final rules contained in part 

13 states that after participating in an informal conference, a respondent can render the issuance 

of a FNPCP unnecessary by requesting a hearing. 55 Fed. Reg. 27559 (Jul. 3, 1990) ("[A] 'final 

notice of proposed civil penalty' may be issued if a civil penalty action still is unresolved (by 

payment of a civil penalty, compromise of the action or amount of a civil penalty, or by a 

person's request for a hearing) after participation in informal proceedings.") (emphasis added). 

In this case, the Respondent participated in an informal conference pursuant to paragraph 

(£)(3 ). The conference did not result in a settlement, or in an agreement by the FAA to withdraw 

the NPCP. While the majority of respondents may wait until after the FAA files a FNPCP to file 

a request for hearing, it is not required. Either the FAA or the respondent may act to end the 

informal settlement conference elected under 14 C.F.R. § 13.16(£). 

It is undisputed that the FAA's Information, which accompanied the NPCP, clearly stated 

that the Respondent retained the right to request a hearing. (Resp. 11; Resp. Exh. 1 ~~ 6 and 8.) 

Thus, when eight months passed after the parties' informal August 2014 conference, and the 

FAA had not acted (i.e., agreed to a settlement, withdrawn the NPCP, or issued a FNPCP), the 

Respondent exercised its option to end the§ 13.16(t) informal proceedings by filing its March 4, 

2015 Request. (Resp. at 13.) 

It is well-established that informal settlement negotiations are a "determination by 

agreement"3 from which a party may withdraw. 2 Fed. Proc., L. Ed. § 2.243 ("Alternate means 

of dispute resolution are voluntary procedures which supplement rather than limit other agency 

dispute resolution techniques.") Withdrawal might occur for many reasons, including the desire 

for expedition of the proceedings. It should be noted, however, that either party's termination of, 

or withdrawal from, a§ 13.16(£) informal conference does not preclude future informal 

discussions or settlement agreements. See, 55 Fed. Reg. 27559 (Jul. 3, 1990) (an FAA attorney 

"has the discretion and authority" to engage in additional settlement conferences after the 

§13.16(£) informal proceedings have ended.) Thus, in the case herein, the FAA remains free to 

evaluate the material submitted by the Respondent at the informal conference (and/or thereafter) 

3 Black's Law Dictionary, 5111 Ed. (1979). 

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and, if that evaluation results in a determination that no enforcement action or less enforcement 

action is necessary, take appropriate action. 

In its Response, the Respondent also asserted that prejudice would occur if it was not 

allowed to terminate or withdraw from the § 13.16(£) informal conference proceedings. (Resp. 

7.) This argument need not be addressed herein, since no showing of prejudice is necessary. 

E. Conclusion 

Based ori the foregoing and after having reviewed the case file, all pleadings and motions, 

all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised 

IT IS HEREBY ORDERED: 

1. The FAA's Motion to Dismiss is denied. 

2. Pursuant to 14 C.F.R. § 13.218(f)(2)(i), the FAA shall file the complaint not later than ten 

(1 0) days after service of this Order. 

3. Pursuant to 14 C.F .R. § 13.209, the Respondent shall file an answer to the complaint not 

later than thi1iy (30) days after service of the complaint. 

Attachment: Service List 

Page 5 of 5 
SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl 0004 

Mr. Dan Kohlmeyer 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: 718-553-3266 

FAX: 718-533-5699 

Mr. Gregory S. Winton 

Respondent's Counsel 

The Aviation Law Firm 

1997 Annapolis Exchange Parkway 

Suite 300 

Annapolis, MD 21401 

TEL: 301-294-8550 

FAX: 301-568-9886 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

ONE COPY 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Docket No. FAA-20 15-0211 

4 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 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.