SERVED: March 13; 2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In the Matter of: ) 

) 

) 

) 

) 

Docket No. FAA-2013-0855 

DAVID ALLEN DRAVES 

Case No. 2012-GL-25-0058 

Respondent 

ORDER DENYING FAA'S MOTION TO DISMISS AND SETTING 

DEADLINE FOR THE RESPONDENT TO FILE AN ANSWER 

On February 7, 2014 the FAA filed by facsimile with the Office of Hearings ("OH") a 

cover page with the following fifteen (15) pages of material, which the FAA had filed with the 

FAA Hearing Docket the previous day, on February 6, 2014: 

1) A two (2) page FAA letter; 

2) A five (5) page FAA Complaint dated January 30, 2014; 

3) A one (1) page Facsimile cover page, dated January 28, 2014; 

4) A five (5) page FAA Motion to Dismiss Respondent's Request for Hearing ("Motion") 

dated January 28, 2014; 1 and 

5) A two (2) page letter from Respondent David Allen Draves dated January 9, 2014,

2 

which had also been previously filed by the Respondent with the FAA Hearing Docket on 

January 13, 2014, requesting a hearing ("Request").3 

1 Although the FAA Motion referenced and attached "Exhibit A", this attachment contained only a one-page email, 

and did not include either the Final Notice of Proposed Civil Penalty, or proof of the date of service. 

2 The Respondent's Request is dated January 9, 2014; however, the FAA submitted a copy of the envelope in which 

the received Request shows a postmark of January 13,2014. Pursuant to 14 C.F.R. § 13.210(b), a request for 

hearing submitted by mail for filing, and without a certificate of service, is deemed filed on the date shown on the 

postmark. In the Matter of Ryan International Airlines, Inc., FAA Order No. 2000-2 (February 3, 2000). 

3 Although the Respondent's Request references two attachments, including an "original letter requesting a formal 

hearing at my local Flight Standards District Office in Cleveland, Ohio," the FAA did not include these attachments 

in its February 7, 2014 facsimile filing with the OH. In addition, these Respondent attachments are not contained in 

the Hearing Docket's public file. 
On February 11, 2014, this proceeding was assigned to the undersigned Judge by Notice 

of Assignment of Proceeding. 

As oftoday's date, March 13, 2014, the prose Respondent has not filed any response to 

the FAA's Motion to Dismiss. 

I. Discussion of the Motion to Dismiss 

The FAA's Motion asserts that the FAA served the Respondent with a Final Notice of 

Proposed Civil Penalty ("FNPCP") on December 5, 2013, by both certified and regular mail 

(Motion, 1 ). It should be noted that the FAA did not file either the FNPCP or proof of service in 

support of this assertion. 

For the sake of argument, if the FAA had served the Respondent on December 5, 2014 

with the FNPCP, then pursuant to 14 C.F .R. § 13 .16(g)(2), 4 the deadline for the Respondent to 

file a request for hearing was December 20, 2013. 

It was undisputed that on December 20, 2013, the Respondent had "sent" a letter to the 

FAA counsel requesting a "hearing with Ms. Chris Paucho, the Flight Standards District Office 

Chief' (Motion, 2). 5 That same day, on December 20, 2013, the FAA attorney and the pro se 

Respondent spoke on the telephone about the Respondent's Request (Motion, 2). It was 

undisputed that the FAA was aware, during this ·conversation, that the pro se Respondent wanted 

a hearing, and had attempted to formally request a hearing by written letter. 

It was also undisputed that during this December 20, 2013 telephone conversation, the 

FAA attorney explained to the Respondent that there were "proper channels" (undescribed) for 

filing a Request, and then offered to email the Respondent "another copy" of the FNPCP, which 

"included the instructions" for requesting a hearing (Motion, 2). The record is silent regarding 

the parties' mutual understanding, during this telephone conversation, regarding any deadline 

attaching to another written request filed by the Respondent. 

That same day on December 20,2013, according to the FAA's Exhibit A, a FAA legal 

assistant emailed to the Respondent (at 12:41pm) a copy ofthe FNPCP. The FAA did not 

provide any proof of delivery or "read receipt" for this email, or any information showing that 

the email address utilized could be deemed an accurate delivery address for the Respondent. The 

FAA's Exhibit A also did not include a copy of the attached FNPCP, so the record is silent 

regarding what the scope and type of "instructions" it offered to the Respondent regarding filing 

a request for hearing. 

4 The FAA's Motion to Dismiss incorrectly cites to 14 C.F.R. § 13.16(g)(ii)- instead of 14 C.F.R. § 13.16(g)(2)(ii)) 

-but the FAA's quoted language from the regulation is accurate. 

5 The record is silent regarding how this letter was sent (e.g., by U.S. regular mail, by facsimile, by email, etc.), 

when it was actually received, or when the letter- if sent by U.S. regular mail --was postmarked. 

Page 2 of3. 
~· 

It is undisputed that the Respondent filed with the FAA Hearing Docket a written 

Request for hearing on January 13, 2014. In its Motion, the FAA asserts that this Request was 

was filed 24 days late, because it had been due no later than December 20, 2013. 

II. Analysis 

Pursuant to 14 C.F.R. § 13.218(f)(2)(i), the FAA may file a motion to dismiss a request 

for hearing instead of filing a complaint. The issue is whether the Respondent filed a timely 

request for hearing. Based on the documents and evidence in the record, the FAA has failed to 

prove that the Respondent failed to file a timely request for hearing. 

14 C.F.R. § 13.16(g)(2) provides: 

Not later than 15 days after receipt of the final notice of proposed civil penalty, 

the person charged with a violation shall do one of the following-(i) Submit the 

amount of the proposed civil penalty or an agreed-upon amount ... or (ii) Request 

a hearing, in which case a complaint shall be filed with the hearing docket clerk. 

Thus, pursuant to 14 C.F.R. § 13.16(g)(2), the operative date for calculating the due date 

of any request for hearing is not the service date of the FNPCP, but rather the date a respondent 

receives the FNPCP. In re Ryan International Airlines, Inc., FAA-1999-5805, FAA Order No. 

2000-2, at 4 (Feb. 3, 2000). The FAA bears the burden of proof to show the date of receipt. 14 

C.F.R. § 13.224(b). 

There is no evidence in the record demonstrating proof of when the Respondent .received 

the FNPCP. The FAA asserts that the FNPCP "was sent via Certified Mail and Regular Mail," 

but it did not submit any evidence of such service. There is also no evidence of the 

Respondent's receipt of such attempted service. This lack of evidence extends even to the 

FAA's method of calculating the due date-the date of service of the FNPCP plus 15 days-in 

that no copy of the FNPCP showing the purported service date of December 5, 2013 appears in 

the record. The only evidence relating to service of the FNPCP is a December 20, 2013 e-mail to 

the Respondent stating that the FNPCP is attached. (Motion, Ex. A.) 

It is also undisputed that the pro se Respondent orally communicated on December 20, 

2013 with the FAA attorney, and expressed a desire to have a hearing in this proceeding. 

According to the materials in the record, the Respondent also communicated this desire in 

writing on December 20, 2013 by a letter sent to the FAA "counsel" (name/address unstated) 

requesting a hearing in Cleveland, Ohio (Req. Hr'g 1; Motion, 2.) The FAA did not explain why 

it declined to accept this letter as a sufficient request for a hearing from a pro se litigant pursuant 

to 14 C.F.R. § 13.16(g)(2). 

When possible, cases should be decided on their merits. See In re Robert Harris, FAA2002-14236, Order of Chief Administrative Law Judge (Aug. 27, 2003) (citing In re Larry's 

Flying Service, Inc., FAA Order No. 98-4 at 7 (March 12, 1998) and Safety Equipment and Sign 

Co., Ltd, FAAOrder No. 92-76 at 5 (December 21, 1992)). 

Page 3 of3 
In the case herein, it is impossible to determine what the Respondent's December 20, 

2013 letter actually said, because the letter does not appear in the record. Although not 

specifically stated by the FAA, it appears that this letter may have been rejected by counsel as a 

request for hearing because it had not been filed directly with the FAA's hearing docket clerk, 

pursuant to 14 C.F.R. § 13.16(h). While the facts herein could lead to a discussion regarding 

actual notice and congressional intent, given the record herein, this is not required. 

Based on the record, it is not necessary to determine whether Respondent first requested a 

hearing on December 20, 2013 (orally or in writing) or on January 13, 2014 (when the 

Respondent filed his Request with the FAA Hearing Docket clerk), or whether the Respondent 

had good cause for filing his Request on January 13, 2014. The calculation of the 15 days of time 

does not begin until the date the Respondent actually received the FNPCP has been established. 

In this case, the FAA has failed to prove, by preponderance of the evidence, when the 

Respondent received the FNPCP. 

Based on the foregoing, and pursuant to 14 C.F.R. §§ 13.205(a)(8), 13.218(f)(2)(i), 

13.209, and after revjewing all relevant caselaw, regulations, statutory authority, and being fully 

advised; · 

IT IS HEREBY ORDERED: 

1) The FAA's Motion to Dismiss Respondent's Request for Hearing is denied. 

2) The FAA's January 30,2013 Complaint is accepted. 

3) On or before April15, 2014, the Respondent shall file a written Answer to the FAA's 

January 30, 2013 Complaint. 

4) Pursuant to 14 C.F.R. § 13.209, the Respondent's Answer shall address each numbered 

paragraph in the FAA's January 30, 2013 Complaint, by admitting, denying, or stating 

lack of knowledge regarding the content of each paragraph. 

5) Pursuant to 14 C.F.R. § 13.211, the Respondent shall serve his Answer, with a Certificate 

of Service, on the undersigned, the FAA attorney, and the FAA Hearing Docket clerk. As 

an example, a copy of a Certificate of Service, with all needed names and addresses, is 

attached to this Order. 

6) Failure of the Respondent to file a timely Answer on or before April15, 2014 may result . 

in findings of admissions and/or of default entered against him. 

Attachment: Service List 

Page 4 of3 
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 0006 

Ms. Kate Barber 

Complainant's Counsel 

Office of Regional Counsel 

Great Lakes Region, AGL-7 

Federal Aviation Administration 

2300 East Devon A venue 

Des Plaines, IL 60018 

TEL: 847-294-7862 

FAX: 847-294-7498 

Mr. David A. Draves 

Respondent 

1780 Foust Road 

Xenia, OH 45385 

TEL: NOT PROVIDED 

FAX: NOT PROVIDED 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

ONE COPY 

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

Washington, DC 20590 

TEL: 202-366-6941 

FPC(: 202-366-7536 

FDMS No. FAA-2013-0855 

(Civil Penalty Action) 

6 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.