In The Matter Of: 

## SERVED: August2, 2016 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2015-3307 FELTS FIELD AVIATION ) ) ) ) ) Case No. 2015WP910090 Respondent 

### ORDERDENYING RESPON.DENT'S MOTION TO DISMISS AND FORAN AWARD OFATTORNEY FEES OnJuly 1, 2016, the Respondent, FeltsField Aviation, filed Respondent's Motionto Dismiss or in the Alternative Request an Informal Conference ("Motion and Request"). On .July 12, 2016, the parties convened by telephone for an Informal Conference regarding the discovery disputes raised in the Respondent's Motion.The FAA responded orally to the Respondent's Motion and Request duringthe Informal Conference. Based on the July 12, 2014 Informal Conference, on July 14, 2016, an Order Extending Certain Litigation Deadlines was filed. Amongotherthings, this July 14, 2016 Ordernoted that, pursuantto 14 C.F.R. 

### §§ 13.218(d) and 13.211(e),the FAA still had the right to file a written response to the Respondent's Motion and Request on orbeforeJuly 18, 2016. (July 14. 2016 Order, 1fn.l; 3

**~** 1.) OnJuly 18, 2016 the FAA did not file any written Responseto the Respondent's Motion and Request. A. Short Summary ofDispute The Respondent allegedthatthe FAA had ''continuously disregarded" both the FAA's Rules ofPractice ("ROP")(l4 C.F.R. Part 13, Subpart G) regarding discovery exchange, as well as the deadlines set in this Court's April 14,2016 Order Settling Litigation Dates and Procedures. (Respondent's Motion and Request, 1.) Among other

**relief~** the Respondent

### requested dismissal ofthe proceeding, and/or an Inforn1al Conference, and attorney's fees pursuant to Federal Rule ofCivil Procedure 37(d)(3) as a sanction for the FAA's failure to ''comply with regulatory guidance and the intent, ifnot the letter, ofthis Court'sorders." (Mot. Dismiss, 4.) As noted above, an Inforn1al Conference was held on July 12, 2014. In oral response on July 12,2014,the FAA acknowledged that it not complied with certain discovery deadlines. It explained that arecent substitution ofcounsel had occurred. Among otherarguments, the FAA asserted that there had been no prejudice to the Respondent, and that the newly assigned FAA counsel would be responsive in all future matters. On July 14, 2016 an Orderwas issued that codified certain oral rulings issued during the Informal Conference. In addition, the July 14, 2016 Order also reserved ruling on otherrequests raised by the Respondent untiIafter July 18, 2016. (July 14, 2016 Order, 3

**~** 1.) B. Authority for Dismissal and Sanctions 

### In FAA civil penalty proceedings, a party may file a motion to dismiss, specifying the grounds for dismissal, at any time during the litigation. 14 C.F.R. 

### § 13.218(t)(2). The proponent ofsuch a motion has the burden ofproof. 14 C.F.R. § 13.224(b). In addition, the FAA's Rules ofPractice ("ROP"), 14 C.F.R. Part 13, Subpart G, specifically provide, in four (4) separate sections, directions regarding the imposition of sanctions as follows: 1) sanctions involving filed documents, 14 C.F.R. §

**13.207~** 

### 2) limitations regarding sanctions, 14 C.F.R. § 13.205(b); 3) sanctions involving agreedjoint schedules, 14 C.F.R. 

### § 13.217(f); and, 4) sanctions for failures to comply with general discovery, 14 C.F.R. 

### § 13.220(n). C. BriefDiscussion 

### Although the FAA's ROP are "roughly parallel" to the Federal Rules, there are some exceptions and differences. Pursuantto 14 C.F.R. § 

### 13.205(b), the FAA Administratorhas found that dismissal may not be utilized as a discovery sanction in FAA civil penalty proceedings. This distinctive limitation was more fully discussed in a recent order issued by the undersigned, which is adopted here by reference. See, Birmingham Flight Center, Inc., 

### FAA-2014-0867, Order Page 2 of3

### ·- Denying Respondent's Motion to Dismiss and Reserving Ruling on Other Sanctions(§ D. Discussion) (February 22, 2016). ln addition, the FAA's ROP preclude the award ofattorney fees. 14 C.F.R. § 13.205(b) provides in part: The administrative lawjudge shall not issue an order ofcontempt, award cost to any party, orimpose any sanction not specified in this subpart. 14 C.F.R. § 13.205(b). D. Conclusion Pursuantto 14 C.F.R. § 13.205, 14 C.F.R. § 13.207, 14 C.F.R. § 13.217, and 14 C.F.R. 

### § 13.220(n), and afterreviewing all relevant caselaw, regulation, statutory authority, and being fully advised; 

### ITIS HEREBY ORDERED: 1. The Respondent's Motion and Request for dismissal as a sanction for the FAA's failure to comply with discovery deadlines is denied. 2. The Respondent's Motion and Request for attorney fees for the FAA's failure to comply with discovery deadlines is denied.

Attachment: Service List livan

**n..c~~'Yl.O·I"r\Istrative** Law Judge

Page 3 of 3•. DocketNo. FAA-2015-3307 (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 WrightBuilding-Suite2W1000 1 ONE COPY Ms. Fatimah Stokley Complainant 's Counsel Federal Aviation Administration, Office ofthe ChiefCounsel Enforcement Division- WesternTeam P.O. Box 920007 Los Angeles, CA 90009-2007 TEL: 310-725-7112 FAX: 31 0-725-6816 Mr. Mark J. Conlin Mr. Benjamin L. Wyborney Respondent's Counsel Conlin, Maloney & Miller 421 W. Riverside Ave., Suite 911 Spokane, WA 99201 TEL: 509-624-3020 FAX': 509-623-1650 Judge J.E. Sullivan U.S. Administrative LawJudge Office ofHearings, M-20 U.S. DepartmentofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 Felts Field Aviation, Inc. ReJpondent 14 East Main Ave. Spokane, WA 99201-0405

1 Service was by U.S. Mail. For service in person orby expedited courier, use the following address: Federal· Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.