### In The Matter Of: WOOLPERT LLC Respondent 

### SERVED: June 3, 2015 

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEAIUNGS WASHINGTON, DC ) ) ) ) ) 

### DocketNo. FAA-2015-0211 Case No. 2013EA250068

ORDER DENYING THE FAA'S MOTION TO DISMISS 1'



### On March 4, 2015, the Respondent, Woolpert LLC, servedthe FAA with a Request for Hearing pursuantto 14 C.F.R. 

### § 13.16 ("Request"). On March 23,2015, the FAA filed with the Office ofHearings ("OI-l") the Respondent's Request, as well as the FAA'sMotionto Dismiss ("Motion") and a Notice ofAppearance. 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, aNotice ofProceedingwas filed, which assigned this case to the undersigned. 

### A. Undisputed Factual Background It was undisputedthaton June 18, 2014, the FAA servedthe Respondent, Woolpert LLC, with a Notice ofProposed 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 ofthe Federal Aviation Regulations. TheNPCP further proposed atotal 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). Althoughthe informal conference was initially scheduled for August 6, 2014 (Resp.Exh. 3), it appears that the parties mayhave actually participated inthe 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 providedthe FAA with some additional written information about the allegations. (Resp. 5; Resp. Exh. 4.) One· (1) week later, on September5, 2014,the FAA notifiedthe 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 thatthe Respondent did not make any settlementoffers between September 5, 2015 and January 16, 2015. On January 16,2015,the Respondent provided additional information to the FAA by email, and requested that the FAA withdrawthe NPCP. (Resp. 1 0; Resp. Exh. 6.) On February 6, 2015 and February 17, 2015, the Respondent emailedthe FAA, and requestedthatthe FAA provide information onthe status ofthe case. 

### (!d.) On February 18, 2015, the FAA replied by email thatit would respond "nextweek." (Resp. Exh. 6.) Subseque11tly, the Respondent emaileothe 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, statingthat it was "working"to get "an opinion" onthe matter. (Id.) Five days later, on March 4, 2015, the Respondent served the FAA with its Request. (Mot. 2; Resp. 2; Resp. Exh. 5.) Itwas undisputed that the FAA has never issued a Final Notice ofProposed Civil Penalty ("FNPCP") in this action. B. J?AA's Motion to Dismiss TheFAA asserts thatthe Respondent's March4, 2015 Request2 shouldbe dismissed as untimely. (Mot. 3.) The FAA argues that the NPCP was received by the Respondent on June 23,

1The 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 Iist, attached to its Request for Hearing, is dated March 4, 2015. (Req. Hr'g 3; Resp. EX:h. 5.) Page 2 of52014. (!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'stime 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 rightto subsequentlyrequest a formal hearing. (Mot. 11.) 

### D. BriefDiscussion 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 triggeredby the issuance ofthe NPCP (i.e., the initiation ofthe civil penalty action). The FAA's arguments thatthe Respondent was time-barred afterJuly 24, 2014 from filing a request were not persuasive. In its Motion, the FAA has not proven-by legal, policy, or other persuasive support-whythe right to a hearing, whichthe Respondent has otherwise preserved by complying with 14 C.F.R. § 13.16, cannotbe asserted afterthe Respondent pa1iicipates 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 laterthan July 24, 2014. Instead, it was required to choose one ofthethree (3) options provided for in 14 C.F.R. 

### § 13.16(£). The Respondent metthat 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 caselawthat indicatesthat once the Respondent opts for an informal conference under 14 C.F.R. § 13.16(£), it has waived its rightto a hearing pendingfurther FAA action, orthat 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 ofservice ofthe Respondent's Request is deemed a clerical error. Page 3 of5To the contrary, the commentary accompanying the FAA's final rules contained in part 13 states that 

### afterparticipating in an informal conference, a respondent can render the issuance ofa FNPCP unnecessarybyrequesting a hearing. 55 Fed. Reg. 27559 (Jul. 3, 1990) ("[A] 'final notice ofproposed civil penalty' 

### maybe issued ifa civil penalty action still is unresolved (by paymentofa civil penalty, compromise ofthe action or amount ofa civil penalty, 

### or bya person's requestfor a hearing) afterparticipation in informal proceedings.") (emphasis added). In this case, the Respondentparticipated in an informal conference pursuantto paragraph (£)(3). The conference did not result in a settlement, or in an agreement by the FAA to withdraw the NPCP. While the majority ofrespondents may wait until after the FAA files a FNPCP to file arequest for hearing, it is not required. Eitherthe FAA orthe 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 rightto request a hearing. (Resp. 11; Resp. Exh. 1**~~** 6 and 8.) Thus, when eightmonths passed afterthe parties' informal August 2014 conference, andthe FAA had not acted (i.e., agreed to a settlement, withdrawnthe 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.) Itis well-establishedthat informal settlement negotiations are a "determination by agreement"3 from which a party may withdraw. 2 Fed. Proc., 

### L. Ed. 

### § 2.243 ("Alternate means ofdispute resolution are voluntary procedures which supplementrather than limitother agency dispute resolution techniques.") Withdrawal might occur for many reasons, includingthe desire for expedition ofthe 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 settlementagreements. 

### See, 55 Fed. Reg. 27559 (Jul. 3, 1990) (an FAA attorney "hasthe discretion and authority"to engage in additional settlementconferences afterthe §13.16(£) informal proceedings have ended.) Thus, in the caseherein, the FAAremains free to evaluate the material submitted by the Respondent at the informal conference (and/orthereafter)

3 Black's Law Dictionary, 5111 Ed. (1979). Page 4 of 5and, ifthat evaluation results in a determination that no enforcementaction or less enforcement action is necessary, take appropriate action. In its Response, the Respondent also asserted thatprejudice would occur ifit was not allowed to terminate or withdraw from the § 13.16(£) informal conference proceedings. (Resp. 7.) This argumentneed notbe addressed herein, since no showing ofprejudice is necessary. 

### E. Conclusion Based orithe foregoing and afterhaving 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. Pursuantto 14 C.F.R. 

### § 13.218(f)(2)(i),the FAA shall file the complaint not laterthan ten (10) days after service ofthis Order. 3. Pursuantto 14 C.F.R. § 13.209, the Respondent shall file an answerto the complaint not laterthan thi1iy (30) days after service ofthe complaint.

Attachment: Service List

Page 5 of5SERVICE 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-Suite2Wl0004

Mr. Dan Kohlmeyer Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel 1Aviation 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 LawJudge Office ofHearings, M-20 U.S. Department ofTransportation ONE COPY

1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 DocketNo. FAA-2015-0211

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.