In The Matter Of: SERVED: DECEMBER24, 2014 

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2013-0291 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES ) ) ) ) ) ) Respondent Case No. 2011S0290032

ORDER CONFIRMING THAT RESPONDENT'S DEADLINE TO FILE RESPONSE IS JANUARY 5, 2015 On December 18, 2014, an Order Granting Respondent's Motion to Modify Litigation Schedule and Extend Two Dispositive Motion Deadlines was filed On December 19, 20 14, the FAA filed its Response to Renewed Motion for Sanctions and Motionto Compel and Exclude ("Response" and "Motionto Compel"). On December 23, 2014, the Respondent filed Respondent's Motionfor Extension of Time ("Motion"). Inthis Motion, the Respondent noted that the FAA had filed new Motions in its December 19, 2014 Response, and it sought an extension oftimeto answer such requests. BriefDiscussion In its Motion, the Respondent agrees that on December 19, 2014 itreceived a copy ofthe FAA's Response and Motion to Compel. This receipt was by facsimile ("fax"). Attachedto the FAA's Response and Motionto Compel was a Certificate ofService, stating that a hard copy of the FAA'smaterials had also been served on the Respondentby certified mailthat same day, December 19, 2014. The Respondent was still waiting to receive the certified mail copy. (Mot., 1-2.) The Respondent requests clarificationregarding what constitutes valid service. This clarification is requested during the FAA's absence from the proceedings. Accordingto the Respondent, ifthe FAA's fax service is not considered valid service under the regulations, then**~**... .:**t~!** '""!its motion is moot, since it can add five days for service by certified mail, pursuantto 14 C.F.R. 

### § 13.211(e). (ld. at 1, fn 1.) However, ifthe FAA's fax service is considered valid service, then the Respondent seeks an extension oftime from December 29, 2014 to January 5, 2015, so that it may file a Response to the FAA's newly made discovery motions. In the pasttwo decades, parties in litigationhave increasingly agreed to the use of alternate electronic service by email orfax. However, the Rules ofPractice ("Rules") inthese proceedings specifically provide for only two types ofvalid service betweenthe parties: personal delivery (including expedited courier service) and U.S. Mail. 14 C.F.R. 

### § 13.211(b) and 14 C.F.R. 

### § 13.210(a) (equating delivery in person with delivery viaexpedited courier service). The Rules were adopted priorto the proliferation ofelectronic alternatives (i.e., email or fax), and priorto the September 11, 2001 attacks, which changed the method andtiming ofhowfederal government offices receive, process, and deliver U.S. mail. It shouldbe noted, however, thatthroughoutthese and other FAA proceedings, this Court has directed the partiesto file withthis Court a courtesy copy ofall documents by fax orpersonal delivery on or before the court-ordered deadline date. The Court has also expressly advisedthe parties that "filing"withthis' Court means date-stampedreceived by the Court. This filing method enables the Courtto timely receive filings, ensure compliance with court-ordered deadlines, andto efficiently and effectively rule on motions within time periodsprovided inthe Litigation Schedule. In addition, the September 30, 2014 Order Modifying the Litigation Dates and Procedures in this case directs that "[s]tatements in oppositionto discovery motions mustbe filed within ten (10) calendar days after service ofthe motion." (9/30/14 Order, pages 3-4**~G.)** This generally follows the Rule thatprovides a party may file an answerto a discovery motion "not laterthan 10 days after service ofa motion" (14 C.F.R. 

### § 13.218(d)). However, the September 30, 2014 Orderprovides a clarificationthat "10 days" means calendar days, not working days. The goal of"service" is to provide the defending party with "notice in such a manner and at such a time that the defending party will have a fair opportunity to answer." Steven BaickerMcKee, et.al, Federal CivilRules Handbook, West Publishing (2012) (Rule 4). Itmightbe arguedthat actual notice by fax might meet such goals. However, inthe absence ofanyPage 2 of3participation from the FAA inthis case (see, 12/15/14 FAA Notice ofUnavailability), the issue ofwhether fax service shouldbe deemed to meet the goals ofservice

- when it is not specifically provided for in the Rules

- shouldbe deferred. The Certificate ofService attached to the FAA's Motion to Compel shows a service date by certified mail on December 19, 2014. (Mot. to Compel, Cert. ofService.) Thus, the mailing rule contained in 14 C.F.R. § 13.2ll(e) applies in this case to the Respondent's answerto the Motion to Compel. Consequently, the Respondent's answerto the FAA's Motion to Compel is due 15 days from the date ofservice ofthe Motionto Compel. Pursuant to 14 C.F.R. 

### § 13.212(b), ."[t]he date ofan act, event, or default, after which a designated time period begins to run, is not included in the computation oftime[.]" Calculating 15 days from December 20, 2014, ineans that the last day for the Respondent to file an answer would be Saturday, January 3, 2015. Pursuant to 14 C.F.R. § 13.212(c), "[t]he last day ofa time period is included in a computation oftimeunless it is a Saturday, Sunday, or a legal holiday. If the last day ofthe time period is a Saturday, Sunday, orlegal holiday, the periodruns until the end ofthe next day that is not a Saturday, Sunday, or legal holiday." Because January 3, 2015 is a Saturday, the Respondent's time for filing an answer to the FAA's Motion to Compel runs until Monday, January 5, 2015. Pursuantto 14 C.F.R. §§ 13.205(a)(6), (8), and afterreviewing all relevant caselaw, regulations, statutory authority, andbeing fully advised; 

### IT IS HEREBY ORDERED: 1. January 5, 2015 is confirmed to be the Respondent's deadline for filing a Response to the FAA's Motionto Compel.

Attachment: Service List

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J ! SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W1000 1

Mr. Christopher R. Stevenson Complainant's Counsel Federal Aviation Administration ONE COPY

Office ofthe Regional Counsel, Southern Region P. 

### 0. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Robert P. Silverberg Respondent's Counsel Silverberg, Goldman & Bikoff, LLP Georgetown Place, Suite 120 1101 30th St., N.W. Washington, DC 20007 TEL: 202-944-3300 FAX: 202-944-3306 Judge J.E. Sullivan US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 FDMS No. FAA-2013-0291 (Civil Penalty Action)

1 Service was by U.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.