In the Matter of: 

SERVED: October 17, 2016 

U.S. DEPARTMENT OF TRANSPORTATION O.EPARTMEN'T OF 

OFFICE OF HEARINGS TRANSPORTATlOH 

WASHINGTON, DC 201b OCT 11 p 3: 3ll 

·DOCKET OPERATIONS 

Docket No. FAA-2015-1325 

BEACH AVIATION, LLC 

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Case No. 201380950071 

Respondent 

ORDER DENYING THE FAA'S MOTION TO STRIKE, 

DENYING THE FAA'S MOTION FOR JUDGMENT., 

AND GRANTING LEAVE TO ATTEMPT NEW SERVICE 

On September 28, 2015, the FAA filed a Motion to Deem Admitted and For Judgment on 

the Pleadings ("Motion"). 

On December 11,2015, an Order Setting Deadlines for the Respondent to Respond and 

Show Cause and the FAA to Reply, and Reserving Other Relief was filed. Among other things, 

this December 11,2015 Order set a deadline of January 12,2016 for Mr. Charles Brady, the lay 

owner of Respondent, Beach Aviation, LLC, to file an Answer and a Response, and a dead! ine of 

January 29, 2016, for the FAA to file a Reply to the Respondent's Response. (December 11 , 

2015 Order, 4 ~~ 2-4.) 

On January 12, 2016, the Respondent failed to file a timely Answer or a Response. 

Three days later, on January 15, 2016, Mr. Charles Brady, the lay owner of Respondent, 

filed an untitled two-page Letter dated January 14, 2016 ("Show Cause Response"), in which he 

explained his circumstances, provided responses to some of the allegations in the Complaint, and 

asked for leniency on a variety of grounds. 
On January 29,2016, the FAA filed the Agency's Response to the Respondent's January 

14,2016 Filing (hereinafter, "Reply"). 1 As part of this Reply, the FAA included a motion to 

strike the Respondent's January 15,2016 Show Cause Response as untimely. (Reply, 1.) 

I. MOTION TO STRIKE 

In its January 29,2016 Reply the FAA moved to strike Mr. Brady's January 15,2016 

Show Cause Response on the grounds of untimeliness. (Reply, 2.) As part of this motion, the 

FAA correctly pointed out that Mr. Brady filed his Show Cause Response three (3) days late 

(i.e., on January 15, 2016 instead of January 12, 20 16). However, in his January 15, 2016 Show 

Cause Response, Mr. Brady explained that he had not received the Court's December 11,2015 

Show Cause Order until January 14, 2016 (i.e., two (2) days after the January 12, 2016 deadline). 

Once received, Mr. Brady acted immediately (i.e., within 24 hours) to file his January 15, 2016 

Show Cause Response. The FAA's Motion to Strike should be denied. 

II. INTRODUCTION 

In its Complaint, the FAA alleges that the Respondent, Beach Aviation LLC, violated 

multiple safety regulations regarding its duty to register and implement drug and alcohol testing 

programs, and requests a total civil penalty in the amount of $15,400. 

In its September 28, 2015 Motion, the FAA asserts that the Respondent was served with 

a Complaint on July 1, 2015 and failed to file a timely Answer. As a result, the FAA seeks a 

default finding and judg1nent. The FAA asserts that each allegation in the Complaint (i.e., 

Sections I, II, and III) should be deemed uncontested and admitted, pursuant to 14 C.F.R. § 

13 .209(f). The FAA also asserts that the allegations in the Complaint are sufficient to 

demonstrate the appropriateness of the proposed $15,400 sanction. (Mot. 1.) 

1 When a party files a motion, it is the "movant." The party answering the motion is the "responding" party. Thus, a 

"responding" party typically files a "response" (or "opposition") to a motion. 56 Am. Jur. 2d Motions. Rules. and 

Orders§§ 7-39 (2013). If allowed by the court, the movant may thereafter file a "reply" to address matters in the 

opposing party's "response." 27 Fed. Proc., L. Ed. Pleadings and Motions § 62.360 (20 13). In the case herein, the 

FAA, as the movant, was invited by the Court to file a Reply to any arguments made by the Respondent in his Show 

Cause Response. (Dec. II, 2015 Order, 4 ~ 4.) Thus, the FAA, as the movant, has actually filed a Reply as invited 

by this Court, but mistitled its document as a "response". 

Page 2 of 13 
A. FAA Rules of Practice- Service of Complaint and Timely Answer 

The FAA's Rules of Practice ("ROP") require that the FAA "personally deliver or mail a 

copy of the complaint on the respondent, the president of the corporation or company named as a 

respondent, or a person designated by the respondent to accept service of documents in the civil 

penalty proceeding." 14 C.F.R. § 13.208(b). Upon personal delivery service ofthe FAA's 

complaint, a respondent must file a timely answer within 30 days of service. 14 C.P.R. § 13.209. 

However, a responding party served by mail has 35 days to file a timely answer after service of a 

complaint. 14 C.F.R. § 13.211(e), 

B. The FAA Has Initial Burden of Proof 

Pursuant to 14 C.F.R. § 13.224, the FAA has the initial burden of proof in demonstrating 

proper service of the complaint. This requirement to demonstrate proper service follows general 

federal litigation practice, which emphasizes that service of process is "primarily a notice-giving 

device," and "the propriety of service in each case should tum on its own facts." 4A Charles 

Wright & Arthur Miller, Federal Practice and Procedure§ 1083 (4th ed. 2016); Mann v. 

Castiel, 681 F.3d 368, 372 (D.C. Cir. 2012); Bazar ian Inti. Fin. Associates, L. LC. v. Desarrollos 

Aerohotelco, C.A., CV 13-1981 (BAH), 2016 WL 471273, at *8 (D.D.C. Feb. 7, 2016) (The party 

who has served the documents has the burden of establishing the validity of the service process); 

see also, Steven Baicker-McKee, et al., Federal Civil Rules Handbook, 241 (Thomson Reuters 

20 16) (Pursuant to Federal Rule of Civil Procedure 4, the burden of proof of service is on the 

party attempting service.) 

C. Untimely Answer: Good Cause Showing Required 

Pursuant to the FAA's ROP, if the respondent is properly served with a complaint. it 

must file a timely answer. 14 C.F.R. § 13.209. Any answer filed beyond the 30 (or 3'5) day 

period after service of the complaint is late (i.e. "untimely"), and can result in all the allegations 

in the complaint being admitted as true (14 C.F.R. § 13.209 (f)), which is the equivalent of a 

default finding. 

To avoid a default, a respondent who files a late answer to a complaint must petition for 

relief. Pursuant to 14 C.F.R. § 13.209(:£), a respondent must demonstrate good cause in support 

Page 3 of 13 
of its request for relief from a default action. "A showing of good cause is mandatory. Without it 

failure to file an answer by the deadline n1ay not be excused." Global Peace Initiative, Inc., FAA 

Order No. 2008-8 at 5 (Aug. 21, 2008) (quoting Atlantic World Airways, FAA Order No. 1995-

28 at 4 (Dec. 19, 1995). 

III. CALCULATION OF 35 DAY TIME PERIOD 

As noted above, pursuant to 14 C.F.R. § 13.209(a), a respondent is allowed 30 days after 

personal delivery service of the complaint to file a written answer to the complaint. Pursuant to 

14 C.F.R. § 13.211(e), five additional days are added to the 30 day time period whenever a 

complaint is served by mail. In addition, pursuant to 14 C.F.R. § 13.212(b), the date of service is 

not included in the calculation of time. 

In its Motion, the FAA asserts that the Respondent's thirty-five (35) day time clock for 

filing a timely Answer began to run on July 1, 2016. (Motion, 3.) Thus, according to the FAA, 

the last day for the Respondent to file a titnely Answer was August 4, 2015.2 (ld. at 4.) 

However, ifthe FAA establishes that service occurred on July 1, 2015, the FAA's 

assertion that August 4, 2015 was the Respondent's last day to file a timely a timely request is in 

error. Pursuant to 14 C.F.R. § 13.212(b), the date of service (i.e., July 1, 2015) is the act or event 

that the triggers the calculation of time. When counting the 35 days for the "designated time 

period," the date of service is not counted. Instead, the count of the 35 days "begins to run" afier 

the date of service. 14 C.F .R. § 13 .212(b ). 

Thus, assuming service occurred on July 1, 2015, the 35 day calculation oftime began on 

July 2, 2015. Since July 1, 2015 cannot be included in the calculation, the 35th day after the 

alleged July 1, 2015 date of service is actually August 5, 2015, instead ofthe FAA's asserted 

date of August 4, 2015. 

Page 4 of 13 
IV. PROOF OF SERVICE OF COMPLAINT 

All materials have been reviewed, but this discussion highlights only certain matters. 

Pursuant to 14 C.F.R. § 13.224, the first inquiry in review of the FAA's Motion is whether the 

FAA has submitted proof of proper service of the Complaint. 

The FAA presented evidence that it mailed a copy of the Complaint by certified mail to 

the Respondent on July 1, 2015. (Mot. Ex. A, Cert. Service). The certified mailing was sent to 

"Charles Brady Beach Aviation, LLC" at the following address: 3 700 Airport Road, Suite 405, 

Boca Raton, FL 33431. (/d.) It was undisputed that Mr. Charles Brady was the Respondent's 

owner and lay representative. It was also undisputed that the address listed by the FAA on its 

certified mailing was the Respondent's mailing address. 

The United States Postal Service ("USPS") Tracking for the FAA's certified mailing 

states that the mailing was not delivered. Instead, a notice about the certified mailing was 

delivered on July 8, 2015, at 11:24 a.m., because there was "No Authorized Recipient Available" 

to accept delivery of the mailing. (Mot., Ex. C, 1.) This USPS Tracking evidence also indicates 

that the USPS notified the Respondent that it would need to "arrange" with USPS for 

"redelivery" of the certified mailing. (!d.) If the item was not "pick[ ed] up" by the Respondent 

by August 7, 2015, USPS would return the "unclaimed" mailing to the sender (i.e., the FAA). 

(!d.) 

The FAA did not provide the certified mail receipt, or any further evidence, to show 

whether the July 1, 2015 certified mailing was redelivered, picked up, or refused by the 

Respondent, or alternatively, returned as unclaimed by the USPS.3 Based on this evidence, the 

FAA argued that the Respondent had been properly served with the Complaint. 

A. Brief Overview of "Mailbox Rule" and ~~Rebuttable Presumption" 

Pursuant to 14 C.F.R. § 13.212(g), a document is presumed to be ~·validly served" if it is 

mailed, even if the document is subsequently refused, unclaimed, or returned. 

3 In its Reply, the FAA agreed that the USPS Tracking document did not show confirmation of delivery. (Reply, 4.) 

It argued, however, that the USPS Tracking evidence on July 8, 2015 showed that the document would likely be 

listed as "unclaimed" and returned "38 days after the original mailing." (Reply, 4 and Reply, Ex. 4.) The FAA's 

arguments about what might have occurred after July 8, 2015 is not a substitute for evidence. 

Page 5 of 13 
The service shall be considered valid as of the date and the time that the document 

was deposited with a contract or express messenger, the document was mailed, or 

personal delivery of the document was refused. 

14 C.F.R. § 13.212(g). 

The FAA has defined the tern1 ''mailed" as "includ[ing]'' mail by "U.S. certified mail, 

U.S. registered mail, or use of an overnight express courier service."4 Mail, 14 C.F.R. § 13.202. 

While this definition emphasizes the use of personal delivery or special delivery mail, it does not 

preclude the use of regular mail for service. 14 C.F.R. § 13.208; 14 C.F.R. § 13.211(b) and (d). 

Thus, Section 13.212(g) regarding mail service in FAA civil penalty cases appears to 

codify the "mailbox rule" develbped by the federal courts. The "mailbox rule" allows for the 

rebuttable "presumption" that "physical delivery" of a properly mailed document to an addressee 

actually occurs in due course, pursuant to ordinary post office business. Maine Med. Ctr. v. 

United States, 675 F.3d 110, 114 (1st Cir. 2012). In other words, absent evidence to the 

contrary, proof of a properly mailed document creates a presumption that the document was 

delivered and was actually received by the addressee). Carroll v. Comm 'r, 71 F .3d 1228, 1231 

(6th Cir.1995). This mailing presumption appears codified in the FAA's ROP, since a 

"postmark" date or ''other mailing date" shown by proffered evidence may provide proof of 

service by mail. 14 C.F.R. § 13.212(d). 

B. Stronger Presumption of Service with Certified Mail 

In addition, the '·'mailbox rule" provides for a stronger presumption of service when 

certified mail delivery is utilized. Unlike service by first-class mail, service by certified mail is 

documented by the U.S. Postal Service with a return receipt requested. Thus, with documented 

proof of service with a return receipt, a stronger presumption5 of delivery and receipt of service 

by the addressee attaches to certified mail. 

4 Overnight express courier service would include DHL, Federal Express, USPS Express mail or other services that 

deliver packages the day after the package is deposited with the courier. 53 Fed. Reg. 34646, 34648 (Sept. 7, 1988). 

Personal delivery includes "use of a contract or express messenger service." Personal delivery, 14 C.F.R. § 13.202. 

"The terms 'contract or express messenger service,' ... include bicycle or automobile messengers who deliver 

packages within a local, specified area and individuals employed by firms or businesses that deliver documents for 

that business. 53 Fed. Reg. 34646, 34648 (Sept. 7, 1988). 

5 The presumption is still rebuttable, but greater evidence is required by the party asserting insufficient service. 

Page 6 of 13 
The strong presumption of delivery is justified for certified mail because of the 

extra assurances of effective delivery provided by the U.S. Postal service. When 

certified mail is used, the Postal Service's delivery efforts are documented: there 

is a return receipt or written proof of attempted delivery and notification to the 

addressee of certified mail. 

Nibagwire v. Gonzales, 450 F.3d 153, 156 (4th Cir.2006) (citation omitted). 

C. Proof of Certified Mailing- Return Receipt Required 

Because of the stronger presumption of delivery when certified mail is utilized, federal 

courts have held that a certified tnail return receipt, demonstrating delivery, is required to trigger 

the presumption ofservice. Moy~~-~-. United States, 35 F.3d 501,504 (lOth Cir. 1994). In 2002, 

the FAA Administrator adopted Mlis;proof requirement, by holding that the FAA must produce 

proof of the certified mail receipt as part of its evidence when asserting proper service has 

occurred by certified mailing. 

While a general presumption exists that a properly addressed letter that was 

placed in the U.S. Mail has been delivered, there is no such presumption of 

delivery when the sender did not receive the return receipt for a piece of certified 

mail. 

Tokyo Aircargo USA, FAA Order No. 2002-26 at 4 (Nov. 22, 2002) (citing Moya, 3 5 F .3d at 

504), reconsideration granted inpr;Jrt on other grounds, FAA Order No. 2004-7 (Sept. 22, 2004 ); 

Mulder v. Commissioner of Internal Revenue, 855 F.2d 208, 215 (5th Cir. 1988)). 

This requirement is based on the understanding that if the sender of the certified mail 

does not receive the return receipt for the certified mail, the sender is "on notice" that service by 

certified mail may not have been effective, and that the addressee may not have received the 

letter or document. Tokyo Aircargo USA, FAA Order No. 2002-26 at 4 (without a return receipt, 

"it cannot be determined with certainty that the complaint was served properly"); Lundy v. 

United States, CIV.A. V-06-69, 2007 WL 655756, at *5 (S.D. Tex. Feb. 27, 2007). In those 

circumstances, the requisite "notice" underlying the service rule has not occurred, and it is 

"incumbent upon the sender to inquire with the addressee or send the letter again." Moya, 35 

F.3d at 504. 

Page 7 of 13 
D. FAA Failed to Meet its Burden of Proof Regarding Service 

It is well-established that the primary purpose of the service rules is to ensure that the 

responding party is timely notified that "a legal action has been filed" and to ensure that the 

responding party has "a fair opportunity to answer the pleading and raise defenses and 

objections." Baicker-McKee, et al., supra, at 236; Fed. R. Civ. P. 4. The FAA ROPs 

acknowledge the importance of these two fundamental purposes of service, since the FAA is 

required to "personally deliver or mail" a copy of the complaint in civil penalty proceedings to 

the Respondent. 14 C.F.R. §§ 13)08(b) and 13.212(g). 

In the instant case, the FA-"~ made one attempt to serve the Respondent, by certified maiL 

with its July 1, 2015 Complaint_(~pt. Ex. A, Cert. Service). The FAA did not, however, submit 

· the USPS certified mail receipt for the July 1, 2015 mailing, to show that the July 1, 2015 ', . ', I ~ : . . ' 

Complaint was delivered to, picked up by, or refused by the Respondent. Instead, the FAA 

submitted a two-page "USPS Tracking" document, in which the USPS reported that it received 

the mailing on July 1, 2015 in Atlanta, Georgia. (Mot., Ex. C, 2.) Seven (7) days later, on July 8, 

2015, the USPS reported an attempt to deliver the mailing, but "no authorized recipient" was 

available at the Respondent's business address (no street address provided) to accept or refuse 

delivery. (Mot., Ex. C, 1.) Thus, the certified mailing was not delivered to the Respondent's 

business address. 

According to the USPS Tracking document, the USPS made no further attempts at 

delivery after July 8, 2015. (!d.) In its Reply, the FAA agreed that the USPS Tracking document 

did not show confirmation of delivery (Reply, 4.) Instead, the FAA pointed out that on July 8, 

2015, the USPS Tracking evidence stated that the certified mailing would be listed as 

"unclaimed" and "returned to sender" after August 7, 2015, if left unclaimed at the USPS local 

Post Office. (ld; Reply, Ex. 4.) The FAA did not submit any other evidence, so it is unknown 

whether the certified mail receipt, or the mailing itself, or both, were returned to the FAA by the 

USPS after August 7, 2015. 

Based on the evidence submitted, the FAA argued that its proffered USPS Tracking 

evidence was sufficient to show that proper service had occurred. (Reply, 4.) This argument was 

troubling, since it appeared to ignore the mailbox rule presumption regarding certified mail 

Page 8 of 13 
receipts as well as the FAA Administrator's decision in Tokyo Aircargo USA, FAA Order No. 

2002-26 at 4. 

In Tokyo Aircargo USA, the FAA Administrator explained that submitting the certified 

mail receipt as part of the FAA's proof of certified mail service in a civil penalty adjudication 

"protect[s]" the FAA's "litigation position" that the "complaint was served properly." Tokyo 

Aircargo USA, FAA Order No. 2002-26 at 4. When the FAA does not receive the certified mail 

receipt, the FAA is put on constructive notice that "there may have been a failure of service." !d. 

As a result, pursuant to the FA!\~dministrator's decision in Tokyo Aircargo USA, FAA Order . .. I .. ~ I ~ 

No. 2002-26, the FAA's failure herein to prove service by certified mail receipt means that "it 

cannot be determined with certainty that the complaint was served properly." (!d. at 4.) 

The FAA Administrator's holding in Tokyo Aircargo USA is consistent with well- .: I ··~ : • . 

established federal practice, in w~ich courts have held that a sender of a certified letter, who does 

not receive a return receipt, is on '~notice" that the addressee may not have received the letter. 

Moya, 35 F.3d at 504. In such t!lstances, the federal mailbox rule requires that the "tnailing 

cannot stand as effective service o_f process," and the plaintiff is required to make a ''subsequent 

endeavor at service." Combs v. Nick Garin Trucking, 825 F.2d 437, 448 (D.C. Cir. 1987 

In the case herein, it was undisputed that the FAA made no further efforts to serve the 

Respondent with the Complaint. 'J~us, instead of a strong presumption of service by proof of 

certified mail receipt, the FAA' s· evidence in this case shows a presumed lack of service. Tokyo 

Aircargo USA, FAA Order No. 2002-26 at 4. The USPS Tracking document, which was printed 

on September 21, 2015, provided the FAA with notice that its effort to serve the Respondent 

with the Complaint by certified mail had not been effective. Upon receipt of the USPS Tracking 

document, the FAA had an obligation to attempt to contact the Respondent, or resend the 

Complaint, as recommended by the FAA Administrator and as established by federal case law. 

The FAA failed to do so. Instead, the FAA filed its September 28, 2015 Motion, and argued that 

6 In contrast, as part of its January 29, 2016 Reply, the FAA submitted documentation to show that it made multiple 

etforts to serve its Reply [re the FAA's Motion to Dismiss] upon the Respondent. It served Mr. Brady, the lay 

Respondent representative, both by e-mail and by Federal Express. (Reply, Cert. Service.) The FAA also sent a copy 

of its Reply by Federal Express to the Respondent's registered agent, Mr. Ronnie D. Dykes. (!d.) 

Page 9 of 13 
the Respondent had been effectively served by certified mail on July 1, 2015, and should suffer 

default consequences for its failure to file a timely answer. 

The FAA's proffered evidence is insufficient to demonstrate proper service by certified 

mail; and its arguments that the Respondent should be deemed to have been properly served with 

its Complaint by certified mail on July 1, 2015, are not persuasive. Based on the evidence 

submitted, the FAA has failed to meet its burden of proof regarding service of its Complaint. As 

a result, the FAA's Motion for full dispositive relief, including judgment on the pleadings, 

should be denied. 

E. Remedies: DismissaCAltemate Service Date, or Allow New Service Attempt 

Insufficient service of proc~ss by the plaintiff typically warrants a court's dismissal of the 

plaintiffs claims without prejudi·~~:'Fed. R. Civ. P. 12(b)(5); see also, Mann, 681 F.3d at 371; 

Simpkins v. District of Columbia Gov't, 108 F.3d 366, 369 (D.C.Cir.l997). 

1. Alternate Date of Service Not Established by Case Record 

However, the provisions in 14 C.F.R. § 13.16(g) are very similar to the provisions in 

Federal Rule of Civil Procedure 4( e) and (h). These Federal Rule provisions provide guidance on 

both the underlying purpose of ~~rvice, as well as what the court might consider in reviewing 

whether any alternative and effec'tive service has undisputedly occurred. . ~ ... 

Thus, in recent FAA civil penalty adjudications involving attorney representatives of a 

business or government entity, this court has found that a specific alternate date of service could 

be established. See, e.g., Baer Air, Inc., Docket No. FAA-2014-0112 Order Denying FAA's 

Motion to Dismiss and Granting/Denying Other Relief (July 1, 2014); Puerto Rico Police, 

Docket No. FAA-2013-1086, Order Denying the FAA's Motion, Accepting the Respondent's 

Answer, and Granting/Denying O~her Relief (August 15, 20 16). 

In Baer Air and Puerto Rico Police, the attorney representative of the respondent had not 

been directly served with the complaint, but the undisputed facts demonstrated that the attorney 

representative had received the F ~A's complaint on a date certain, and thereafter immediately 

helped his/her client to file an answer. Thus, an alternate date of service on the respondent's 

Page 10 of 13 
designated representative, pursuant to FAA's ROP (14 C.F.R. § 13.208(b)) and in accordance 

with the general federal notice requirements for service (Fed. R. Civ. P. 4 (h)), could be found. 7 

In the instant case, however, the evidence is insufficient to demonstrate that analternate 

date of service could be established. For example, on January 15, 2016, the Respondent's lay 

owner, Mr. Charles Brady, filed a two-page Show Cause Response, attempting to address all the 

information required by the Court's December 11, 2015 Show Cause Order. Mr. Brady explained 

that he had moved to the Bahamas in July 2015 (exact moving date in July 2015 unspecified), 

and only received U.S. Mail w~en he "returned" (no date provided and no mail address stated). 

Mr. Brady explained that he had ju~t received the Court's December 11, 2015 Order that 

previous day, on January 14, 2016. He asserted that he had never received the FAA's mail 

(unspecified), and had not "knowihgly" missed any deadline. (Show Cause Response, 2.) 

/d. at 2. 

I am very sorry that 1 did n()t receive the mail, and that I am not able to afford an 

attorney to represent me. I would not knowingly miss any deadline and I 

apologize if this isn't the right way to respond. I don't know what I am supposed 

to do. 

In its Reply, the FAA co.rrectly pointed out that Mr. Brady failed to properly and fully 

answer the Complaint allegations in his January 15, 2016 Show Cause Response, as specifically 

directed by this Court. (Reply, 2; December 11, 2015 Order, 4 ~ 2.) This is not dispositive, 

however, since Respondent is no.t obligated to file an answer if it has not been properly served 

with a complaint. 

In his January 15, 2016 Show Cause Response, Mr. Brady did demonstrate some 

knowledge of the FAA's allegations against the Respondent (e.g., ''nobody told us we needed to 

do pre-employment drug testing". and "the FAA says I violated multiple safety regulations ... no 

way"). (I d.) While these statements indicate some awareness of the FAA's charges, it is 

insufficient to determine whether .Mr. Brady's knowledge of the allegations arises from a prior 

administrative notice (e.g., the Notice of Proposed Civil Penalty), an informal discussion with 

FAA personnel, or from possible review ofthe Complaint (date of receipt unknown). Even if Mr. 

7 These decisions did not encompass the issue of waiver of service, and do not purport to hold that a Respondent 

could be forced or required to waive its right to proper service. 

Page 11 of 13 

Brady's response had been based on a review of the Complaint, such response cannot be deemed 

proof of service on July 1, 2015, nor may it be considered a waiver of the Respondent's right to 

proper service. See Fed. R. Civ. P. 4 (d); Baicker-McKee, et al, supra, at 248. 

As a result, there are insufficient facts in the record to allow this court to find, under the 

FAA's ROPs or general federal authority, that the FAA's Complaint was served on the 

Respondent on an alternate date (i.e., other than July 1, 2015). 

2. Allow New Service Attempt 

As noted above, insufficient service of process by the plaintiff typically warrants a 

court's dismissal of the action without prejudice. Thus, in Tokyo Aircargo USA, the FAA 

Administrator initially dismissed the complaint for insufficient service. Tokyo A ircargo USA, 

FAA Order No. 2002-26, at 4. However, the FAA Administrator later reconsidered and reversed 

this dismissal ruling, utilizing th~, Federal Rules of Civil Procedure and federal case law factors as 

guidance. Tokyo A ircargo USA, FAA Order No. 2004-7, at 5-1 0 (Sept. 22, 2004 )). 

In the instant case, the prose Respondent has a general awareness of the alleged 

violations in the action. It also now knows that the FAA has made an attempt to serve it with a 

civil penalty complaint. In its Sh?w Cause Response, Mr. Brady proffered an email address for 

ease in informal communications with the FAA when it is out of the country. 8 The Respondent 

has also asserted an awareness regarding its litigation obligations, as well as a willingness to 

respond appropriately. 

When service of process is insufficient, but there is a reasonable possibility that 

proper service can be accomplished, the court should retain the case but quash the 

service ... with leave to plaintiffs to attempt valid service. 

Tokyo Aircargo USA, FAA Order No. 2004-7, at 10 (Sept. 22, 2004) (citations omitted). 

In the instant case, the FAA timely filed its Complaint in accordance with 14 C.F.R. § 

13.209(a). It made a good faith, albeit insufficient, attempt to serve the Complaint on the 

Respondent in July 2015. Given the Respondent's Show Cause Response, it now appears that 

the FAA can successfully communicate with the Respondent via email in order to help effectuate 

8 While not specifically addressed in the FAA's ROPs, litigants in FAA civil penalty proceedings often utilize email 

communications for informal discussions about the action. 

Page 12 of 13 
proper service of the Complaint. Thus, dismissal of the Complaint is not necessary. Based on the 

evidence adduced, the "better course of action" herein is to allow the FAA an opportunity to 

attempt to serve the Complaint again on the Respondent. 

V. CONCLUSION 

Having reviewed the case file, all relevant caselaw, statutes, regulations, rules, and 

authority, and being fully advised: 

IT IS HEREBY ORDERED: 

1. The FAA's January 29,2016 Motion to Strike the Respondent's January 15,2016 Show 

Cause Response on the grounds of untimeliness is denied. 

2. The Respondent's January 15,2016 Show Cause Response is accepted for consideration. 

3. The FAA's January 29,2016 Motion to Strike any reference(s) to settlement offers made 

by the Respondent in its January 15, 2016 Show Cause Response is granted. 

4. The FAA failed to meet its initial burden of proof to show that it properly served its 

Complaint on the Respondent by certified mail on July 1, 2015. 

5. The FAA's request for full dispositive relief in its September 28, 2015 Motion to Deem 

Admitted and for Judgment on the Pleadings is denied. 

6. Because there is a reasonable possibility that proper service can be accomplished, this 

case action shall remain open, and the FAA is granted leave to serve the Complaint again 

on the Respondent. 

7. The FAA shall, within 20 days of service of this Order, serve the Respondent with the 

Complaint. 

8. The Respondent shall file an answer to the Complaint no later than 30 days after service 

of the Complaint. 

Attachment: Service List 

Page 13 of 13 
Docket No. F AA-20 15-1325 

(Civil Penalty Action) 

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 2WI0009 

ONE COPY 

Mr. Brandon C. Goldberg 

Complainant's Counsel 

Office of the Regional Counsel, ASO-7 

Federal Aviation Administration, Southern Region 

1701 Columbia A venue 

College Park, GA 30337 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Charles Brady 

Beach Aviation, LLC 

Respondent 

3700 Airport Road, Suite 405 

Boca Raton, FL 33431 

TEL: 954-600-0260 

Chasbwi@gmail.com 

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 

Mr. Ronnie D. Dykes, Esq. 

Respondent Registered Agent 

55 NE 5th Ave, Suite 500 

Boca Raton, FL 33431 

9 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 2W1000, Washington, DC 

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