## SERVED: March 13; 2014
U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

In the Matter of: ) ) ) ) ) DocketNo. FAA-2013-0855 DAVID ALLEN DRAVES Case No. 2012-GL-25-0058 Respondent

ORDERDENYING FAA'S MOTION TO DISMISS AND SETTING DEADLINEFORTHE RESPONDENT TO FILE AN ANSWER

On February 7, 2014 the FAA filed by facsimile withthe Office ofHearings ("OH") a cover page with the following fifteen (15) pages ofmaterial, which the FAAhad filed with the FAA Hearing Docket the previous day, onFebruary 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 beenpreviously filed bythe Respondent withthe FAAHearing 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 FinalNotice ofProposed Civil Penalty, orproofofthe date ofservice.

2 The Respondent's Request is dated January 9, 2014; however, the FAA submitted a copy ofthe envelope in which the received Request shows a postmark ofJanuary 13,2014. Pursuant to 14 C.F.R. § 13.210(b), a request for hearing submittedby mail for filing, and without a certificate ofservice, is deemed filed on the date shown onthe postmark. In theMatter of RyanInternationalAirlines, Inc., FAA OrderNo. 2000-2 (February 3, 2000).

3 Although the Respondent's Request references two attachments, including an "original letterrequesting 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.OnFebruary 11, 2014, this proceeding was assigned to the undersigned Judge byNotice ofAssignment ofProceeding. As oftoday's date, March 13, 2014, the

### prose Respondent has not filed any response to the FAA's Motionto Dismiss. 

### I. Discussion ofthe 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 andregular mail (Motion, 1 ). It should be noted that the FAA did not file eitherthe FNPCP orproofofservice in support ofthis assertion. For the sake ofargument, ifthe FAA had served the Respondent onDecember 5, 2014 with the FNPCP, then pursuant to 14 C.F.R. § 13.16(g)(2),4 the deadline for the Respondentto file a request for hearing was December 20, 2013. Itwas undisputed that on December 20, 2013, the Respondent had "sent" a letterto the FAA counsel requesting a "hearingwith Ms. Chris Paucho, the Flight Standards District Office Chief' (Motion, 2).5 That same day, onDecember 20, 2013, the FAA attorney and the

### pro se Respondent spoke on thetelephone about the Respondent's Request (Motion, 2). Itwas 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. Itwas 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, andthen offered to email the Respondent "another copy" ofthe FNPCP, which "included the instructions" for requesting a hearing (Motion, 2). The record is silentregarding the parties' mutual understanding, during this telephone conversation, regarding any deadline attaching to another written request filed bythe 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 proofofdelivery or "readreceipt" 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 ofthe attached FNPCP, so the record is silent regarding whatthe 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)) -butthe FAA's quoted language from the regulation is accurate.

5 The record is silentregarding 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- ifsent by U.S. regular mail --was postmarked. Page 2 of3.**~·**

Itis undisputed that the Respondent filed with the FAA Hearing Docket a written Request for hearing onJanuary 13, 2014. In its Motion, the FAA asserts that this Request was was filed 24 days late, because ithad beendue no later than December 20, 2013.



### II. Analysis Pursuantto 14 C.F.R. § 13.218(f)(2)(i), the FAA may file a motionto dismiss a request for hearing instead offiling a complaint. The issue is whetherthe Respondent filed a timely request for hearing. Based onthe 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 ofthe final notice ofproposed civil penalty, the person charged with a violation shall do one ofthe following-(i) Submit the amount ofthe 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, pursuantto 14 C.F.R. § 13.16(g)(2), the operative date for calculating the due date ofany request for hearing is not the service date ofthe FNPCP, but rather the date a respondent receives the FNPCP. In re RyanInternationalAirlines, Inc., FAA-1999-5805, FAA OrderNo. 2000-2, at 4 (Feb. 3, 2000). The FAA bears the burden ofproofto showthe date ofreceipt. 14 C.F.R. 

### § 13.224(b). There is no evidence inthe record demonstrating proofofwhen 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 ofsuch service. There is also no evidence ofthe Respondent's receipt ofsuch attempted service. This lack ofevidence extends evento the FAA's method ofcalculating the due date-the date ofservice ofthe FNPCP plus 15 days-in that no copy ofthe FNPCP showing the purported service date ofDecember 5, 2013 appears in the record. The only evidence relating to service ofthe FNPCP is a December 20, 2013 e-mail to the Respondent stating that the FNPCP is attached. (Motion, Ex. A.) Itis also undisputed that thepro se Respondent orally communicated onDecember 20, 2013 withthe FAA attorney, and expressed a desire to have a hearing inthis proceeding. According to the materials inthe record, the Respondent also communicatedthis desire in writing onDecember 20, 2013 by a letter sentto 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 apro se litigantpursuant to 14 C.F.R. 

### § 13.16(g)(2). Whenpossible, cases should be decided ontheir merits. See In re RobertHarris, FAA2002-14236, Order ofChiefAdministrative LawJudge (Aug. 27, 2003) (citing In re Larry's Flying Service, Inc., FAA OrderNo. 98-4 at 7 (March 12, 1998) and Safety Equipment andSign Co., Ltd, FAAOrderNo. 92-76 at 5 (December 21, 1992)).
Page 3 of3In the case herein, it is impossible to determine what the Respondent's December 20, 2013 letter actually said, because the letter does not appear inthe 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 ithad not been filed directly with the FAA's hearing docket clerk, pursuantto 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 onthe 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 whetherthe Respondent had good cause for filing his Request onJanuary 13, 2014. The calculation ofthe 15 days oftime does notbeginuntil the date the Respondent actually received the FNPCP has been established. Inthis case, the FAAhas failed to prove, bypreponderance ofthe evidence, when the Respondent received the FNPCP. Based onthe 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) Pursuantto 14 C.F.R. 

### § 13.209, the Respondent's Answer shall address each numbered paragraph inthe FAA's January 30, 2013 Complaint, by admitting, denying, or stating lack ofknowledge regarding the content ofeach paragraph. 5) Pursuantto 14 C.F.R. § 13.211, the Respondent shall serve his Answer, with a Certificate ofService, onthe undersigned, the FAA attorney, and the FAA Hearing Docket clerk. As an example, a copy ofa Certificate ofService, with all needed names and addresses, is attached to this Order. 6) Failure ofthe Respondent to file a timely Answer on orbefore April15, 2014 may result

. in findings ofadmissions and/or ofdefault entered against him.

Attachment: Service List
Page 4 of3SERVICE 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 2W10006

Ms. Kate Barber 

### Complainant's Counsel Office ofRegional Counsel Great Lakes Region, AGL-7 Federal Aviation Administration 2300 East DevonAvenue Des Plaines, IL 60018 TEL: 847-294-7862 FAX: 847-294-7498 Mr. David A. Draves 

### Respondent 1780 Foust Road Xenia, OH 45385 TEL: NOTPROVIDED FAX: NOT PROVIDED Judge J.E. Sullivan 

### US. 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 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.