In The Matter Of: 

SERVED: August 2, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. F AA-20 15-3307 

FELTS FIELD AVIATION 

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Case No. 2015 WP91 0090 

Respondent 

ORDER DENYING RESPON.DENT'S MOTION TO 

DISMISS AND FOR AN AWARD OF ATTORNEY FEES 

On July 1, 2016, the Respondent, Felts Field Aviation, filed Respondent's Motion to 

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 during the Informal Conference. 

Based on the July 12, 2014 Informal Conference, on July 14, 2016, an Order Extending 

Certain Litigation Deadlines was filed. Among other things, this July 14, 2016 Order noted that, 

pursuant to 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 or before July 18, 2016. (July 14. 2016 

Order, 1 fn.l; 3 ~ 1.) 

On July 18, 2016 the FAA did not file any written Response to the Respondent's Motion 

and Request. 

A. Short Summary of Dispute 

The Respondent alleged that the FAA had ''continuously disregarded" both the FAA's 

Rules of Practice ("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 of the proceeding, and/or an Inforn1al Conference, and attorney's fees 

pursuant to Federal Rule of Civil Procedure 37(d)(3) as a sanction for the FAA's failure to 

''comply with regulatory guidance and the intent, if not the letter, of this Court's orders." (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 a recent substitution of counsel had occurred. Among other arguments, 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 Order was issued that 

codified certain oral rulings issued during the Informal Conference. In addition, the July 14, 

2016 Order also reserved ruling on other requests raised by the Respondent unti I after 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. § 1 3.218(t)(2). The proponent 

of such a motion has the burden of proof. 14 C.F.R. § 13 .224(b ). 

In addition, the FAA's Rules of Practice ("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 agreed joint 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. Brief Discussion 

Although the FAA's ROP are "roughly parallel" to the Federal Rules, there are some 

exceptions and differences. Pursuant to 14 C.F .R. § 13 .205(b ), the FAA Administrator has 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-20 14-0867, Order 

Page 2 of 3 
·- Denying Respondent's Motion to Dismiss and Reserving Ruling on Other Sanctions(§ D. 

Discussion) (February 22, 20 16). 

ln addition, the FAA's ROP preclude the award of attorney fees. 14 C.F.R. § 13.205(b) 

provides in part: 

The administrative law judge shall not issue an order of contempt, award cost to any 

party, or impose any sanction not specified in this subpart. 

14 C.F.R. § 13.205(b). 

D. Conclusion 

Pursuant to 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 after reviewing all relevant caselaw, regulation, statutory authority, and being 

fully advised; 

IT IS 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 
•. 

Docket No. F AA-20 15-3307 

(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 Wright Building-Suite 2W 1000 1 

ONE COPY 

Ms. Fatimah Stokley 

Complainant 's Counsel 

Federal Aviation Administration, Office of the Chief Counsel 

Enforcement Division- Western Team 

P.O. Box 920007 

Los Angeles, CA 90009-2007 

TEL: 310-725-7112 

FAX: 3 1 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 Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

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

Washington, DC 20590 

TEL: 202-366-6941 

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 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.