SERVED: February 6, 2017 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In The Matter Of: ) 

) 

) 

) 

) 

Docket No. FAA-2015-3307 

FELTS FIELD AVIATION 

Case No. 2015WP91 0090 

Respondent 

ORDER DENYING THE RESPONDENT'S MOTION TO DISMISS 

AND RESERVING THE RESPONDENT'S ALTERNATE 

MOTION FOR PRECLUSION OF EVIDENCE 

On December 15, 2016, the pm1ies convened by telephone for a continued Motion 

Conference. The parties addressed the Respondent's Motion to Compel. This Court then made 

immediate oral rulings on the Motion, which included setting specific litigation deadlines. These 

oral rulings are contained in the December 15,2016 transcript ofthe Motion Conference. Among 

other things, after consultation with the FAA about its calendar availability, the FAA was 

directed to provide certain fact and opinion evidence to the Respondent, on or before January 17. 

2017. (Dec. 15,2016 Tr. 66:21-67:4.) The parties were also directed to appear for a Scheduling 

Conference on Friday, February 03,2017 at 1:00 p.m. Eastern time. (Dec. 15,2016 Tr. 73:3-13) 

On January 17, 2017 the Respondent, Felt's Field Aviation, filed the Respondent's 

Motion to Dismiss ("Motion"). 

On January 24,2017, the FAA filed the Complainant's Opposition to Respondent's 

Motion to Dismiss ("Opposition"). 
On January 26, 20 1 7, an Order Granting in Part and Denying in Part the Respondent's 

Motion to Compel was filed. This January 26, 2017 Order codified and supplemented the oral 

rulings contained in the December 15, 2016 transcript of the Motion Conference. 1 

That same day, on January 26,2017, the FAA filed the Complainant's Calculation ofthe 

Proposed Civil Penalty ("Calculation"). 

On January 31, 2017 the Respondent filed a Motion to Dismiss, Supplemental Brief 

("Supplemental Brief''). In this January 31, 2017 Supplemental Brief, the Respondent amended 

its January 17, 2017 Motion by adding an alternate request for relief: specifically to preclude the 

FAA from admitting certain evidence, pursuant to 14 C.F.R. § 13.220(n)(3). 

On February 03, 2017 at 1:00 p.m. Eastern time, the parties appeared by telephone for the 

Scheduling Conference ("Conference"). During this Conference, pursuant to 14 C.F.R. § 

13.218(d), the FAA was provided a February 10, 2017 deadline to file its written Response to the 

Respondent's January 31, 2017 alternate request for relief. The parties presented oral argument 

on that part of the Respondent's Motion that specifically asked for dismissal of the proceeding. 

The parties also discussed other pending litigation matters. This written Order codifies and 

supplements the oral rulings contained in the February 3, 2017 Scheduling Conference transcript. 

A. Respondent's Motion to Dismiss and Alternate Request for Preclusion 

In its Motion and Supplemental Brief, the Respondent moved to dismiss the entire action 

under 14 C.F.R. § 13.218(±)(2), on the combined grounds that the FAA's "delays, late 

submission ... withdrawal of expert witnesses, and ... refusal to comply with a Court Order" 

(Motion, 7) had resulted in unnecessary and unfair expenses oftime and money by the 

Respondent. In essence, the Respondent sought dismissal as a sanction on the grounds of 

wrongful delay and noncompliance by the FAA since September 22, 2015, when the Respondent 

was served with the FAA's Complaint. 

In its written Opposition, the FAA asserted that since the substitution of new FAA 

counsel on July 6, 2016, the FAA had promptly responded to all Court-ordered deadlines. 

1 The January 26, 2017 Order erroneously references the December 15, 2016 transcript of the Motion Conference as 

the December 16, 2016 transcript. (Jan. 26, Order, 2 and 14 ~ 1.) This was a clerical error. The correct date is 

December ll, 2016. 

Page 2 of 4 
(Oppos. 1.) During the February 03, 2017 Conference, the FAA also orally asserted that the 

Respondent had not been harmed by the various pre-litigation problems codified in the record of 

proceedings, and that the Respondent was partially at fault for any added litigation costs as well 

as any delays. 

Pursuant to 14 C.F.R. § 13.205(b), the FAA's ROP limit the types of sanctions U.S. 

Administrative Law Judges may impose when presiding over FAA civil penalty cases. The Court 

has addressed the Court's dismissal authority in other cases, and hereby incorporates by 

reference the lengthy discussion and analysis on this issue contained in Birmingham Flight 

Center, Inc., FAA-2014-0867, February 22,2016 Order, 2-6 ~~(B) (D). 

It should also be noted that in the recent case of Gamache-Wortman, FAA Order No. 

2012-4 (May 22, 2012), the FAA Administrator held that dismissing a case in its entirety, when a 

party has failed to comply with discovery requests or an order compelling discovery, is not 

preferred. Jd. at 6. Instead, other sanctions, as specified under 14 C.F.R. § l3.220(n), should be 

considered and utilized for discovery violations. !d. at 6-7. 

In the instant case, the Respondent's request for dismissal should be denied. As this Court 

previo,usly has noted, "[ e ]ven when if a movant files a general motion for dismissal under 14 

C.F.R. § 13.218(f)(2), and the grounds alleged is improper conduct that should be sanctioned by 

dismissal (or default judgement), the specific limitation language under 14 C.F .R. § 13 .205(b) 

prohibits dismissal." Birmingham Flight Center,Jnc., supra at 5 ~ (D)(4)(a). 

The Respondent's alternate request, for preclusion of evidence as a discovery sanction, 

should be reserved pending the FAA's submission of a Response on or before February I 0, 

2017. The FAA should also be given an opportunity to provide proof of filing by fax a copy of 

its Calculation. 

B. Conclusion 

Having reviewed the case file, all pleadings and motions, all relevant case law, statutes, 

regulations, rules, and authority, and being fully advised; 

Page 3 of 4 
IT IS HEREBY ORDERED: 

I. The Respondent's Motion to Dismiss is denied. 

2. The Respondent's Alternate Motion for an order precluding evidence is reserved. 

3. On or before February 10,2017, the FAA shall file a written Response to the 

Respondent's Alternate Motion. 

4. On or before February 10, 2017, the FAA may also file proof of filing with this Court 

by fax a copy of its Calculation. 

5. The parties shall appear by telephone on Wednesday, l•'ebruary 15, 2017, at 1:30 p.m. 

Eastern time for a Motion and Scheduling Conference. The parties shall be prepared to 

present oral argument on the Respondent's Alternate Motion, as well as schedule exact 

dates of the Hearing, deadlines to file dispositive motions (if any), witness lists ~md 

exhibits, written stipulations, and other litigation matters. The pm1ies shall access the 

Court's Conference line by dialing 1-888-278-0296, and when prompted, entering access 

code 5851842. 

6. If either party needs clarification or has any questions regarding the procedures contained 

in this Order, contact Ms. Kelly Ort, Judicial Staff Assistant, at the Office of 

Hearings (202-366-5121 ). 

Attachment: Service List 

Page 4 of 4 
Docket No. 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 Wright Building---Suite 2W1 0001 

Ms. Fatimah Stokley 

Complainant's Counsel 

Federal Aviation Administration 

Enforcement Division- Western Team 

P.O. Box 920007 

Los Angeles, CA 90009-2007 

TEL: 310-725-7112 

FAX: 310-725-6816 

Mr. Mark J. Conlin 

Mr. Benjamin L. Wyborney 

Respondent's Counsel 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Suite 911 

Spokane, WA99201 

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 ofTransportation 

ONE COPY 

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

Washington, DC 20590 

TEL: 202-366-5121 

FAX: 202-366-7536 

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.