In The Matter Of: 

SERVED: January 24, 2017 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASIDNGTON, DC 

Docket No. FAA-2014-1116 

Pacific International Skydiving Center 

) 

) 

) 

) 

) 

Respondent ) 

Case Nos. 2014WP130012 & 

2014WP130023 

ORDER DENYING RESPONDENT'S MOTION TO DISMISS 

The undersigned judge conducted a hearing in the above captioned case from December 13 

to 15, 2016. At the start of the hearing, the Respondent orally moved to dismiss the case due to a 

lack of subject matter jurisdiction, without providing any authority for the motion to dismiss. 1 

The undersigned judge took the matter under advisement and proceeded with the hearing due to 

the parties having traveled to Honolulu, Hawaii, for the purposes of the hearing. At the close of 

the hearing, the undersigned judge set deadlines for the parties to submit briefs on the 

jurisdiction issue. 

On December 27, 2016, the Respondent filed a brief in support of its motion to dismiss due. 

to lack of subject matter jurisdiction ("Motion to Dismiss"). 

On January 10, 2017, the Respondent filed a brief in support of its renewed and amended 

motion to dismiss due to lack of subject matter jurisdiction and to vacate the order setting a 

deadline for posthearing briefs ("Renewed Motion to Dismiss")? 

On January 12, 2017, the Complainant filed a brief opposing the Respondent's Motion to 

Dismiss, as well as its Renewed Motion to Dismiss ("Complainant's Reply"). 

1 After Respondent's counsel briefly discussed its lack of jurisdiction argument, the undersigned judge specifically 

asked, "what's the rule you're citing to for the fact that it would-- the case would be void? Do you have regulation 

for me, or that citation?" Respondent's counsel responded, "I don't. It's case law and I don't have it handy. I have 

it in my notes but it would take a while to find it." Following this exchange, the undersigned judge requested that 

counsel find authority in support of his motion while the hearing continued. See transcript at 1-17-18. 2 On January 11,2017, the Complainant filed a motion to strike the Respondent's Renewed Motion to Dismiss, 

arguing that this motion was filed after the undersigned judge's December 29, 2016 deadline. The Complainant's 

motion to strike is moot, as the relief sought in the Respondent's Motion to Dismiss and Renewed Motion to 

Dismiss is denied. 
For the reasons explained below, the Respondent's Motion to Dismiss is denied.3 

1. Pertinent Procedural History 

On March 27,2014, the Complainant mailed the Respondent a Notice of Proposed Civil 

Penalty ("First NPCP") in the amount of$22,000 in Case No. 2014WP130012. The proposed 

civil penalty stemmed from alleged violations of 14 C.F.R. §§ 91.13(a) and 105.17 as a result of 

skydiving activities that occurred on December 8, 2013 and January 5, 2014.4 

On October 30, 2014, the Complainant mailed the Respondent a second Notice of Proposed 

Civil Penalty ("Second NPCP") in the amount of$33,000 in Case No. 2014WP130023. The 

proposed civil penalty stemmed from alleged violations of 14 C.F.R. §§ 91.13(a) and 105.17 as a 

result of skydiving activities that occurred on March 22 and 25, 2014.5 

On December 18, 2014, the Complainant mailed the Respondent a Final Notice of Proposed 

Civil Penalty ("FNPCP"), which referenced both the First NPCP in the amount of $22,000 for 

Case No. 2014WP130012, as well as the Second NPCP in the amount of$33,000 for Case No. 

2014WP130023. In response, the Respondent filed its request for one hearing in both cases on 

December 29,2014.6 

On January 7, 2014, the Complainant filed its complaint seeking a total civil penalty of 

$55,000. In addition to referencing Case Nos. 2014WP130012 and 2014WP130023 in the 

subject line, the body of the complaint explained that the $55,000 civil penalty sought was 

comprised of$22,000 for Case No. 2014WP130012 and $33,000 for Case No. 2014WP130023.7 

2. Legal Authority 

The governing statute for these proceedings states in relevant part: 

(d) ... ( 4) ... the district courts of the United States have exclusive jurisdiction of a civil action 

involving a penalty the ... Administrator initiates if-(A) the amount in controversy is more than 

... (iii) $50,000 if the violation was committed by an individual or small business concern ... 8 

3 On January 11, 2017, the undersigned judge denied the Respondent's Renewed Motion to Dismiss in part in that 

the request to vacate the Order Setting Deadline for Posthearing Briefwas denied. The remaining requested relief in 

the Renewed Motion to Dismiss mirrors that within the Motion to Dismiss and, as such, is denied by this order. 4 See Complainant's Reply, Ex. 1. 

5 See Complainant's Reply, Ex. 2. 

6 Notably, the document indicated that the Respondent filed this "Request for Hearing in the matters of the Final 

Notice of Proposed Civil Penalty, Case Nos. 2014WP130012 & 2014WP130023 ... seek[ing] to impose a civil 

penalty in the amount of$22,000 in Case No. 2014WP130012 and a civil penalty in the amount of$33,000 in Case 

No. 2014WP130023, for alleged violations of 14 C.F.R. 105.17 and 14 C.F.R. 91.13(a)." See Respondent's Request 

for Hearing. 7 See Complaint. 8 49 U.S.C. § 46301(d)(4)(A)(iii). 

Docke~ No. FAA- 2014-1116 Order Denying Respondent's Motion To Dismiss, page 2 
This statutory language is implemented at 14 C.F.R. § 13.16(b)(3), which states: 

(b) .. ; the United States district courts have exclusive jurisdiction of any civil penalty action 

initiated by the FAA for violations described in those paragraphs, under 49 U.S.C. 4630l(d)(4), if 

... (3) The amount in controversy is more than $50,000 for a violation committed by an individual 

or a small business concern on or after December 12, 2003.9 

3. Analysis 

Complainant has conceded that Respondent is a small business concern. Specifically, during 

discovery the Complainant stated ''the Respondent was determined to be a small business."10 

Further, at the start of the hearing, Complainant's counsel stated ''we've always figured that 

Pacific International Aviation was a small business concern .. .''11 The question, then, is whether 

the amount in controversy in these cases dictates that they must be heard in a United States 

district court. It does not. 

The governing statute at 49 U.S.C. § 46301(d)(4)(A)(iii) directs that the amount pertinent to 

determining proper jurisdiction is the amount when the Administrator "initiates" the civil penalty 

action. Jurisdiction is exclusive to the United States district courts if the amount in controversy 

when the civil penalty action was initiated exceeds $50,000. 

Pursuant to 14 C.F.R. § 13.16(f), "[a] civil penalty action is initiated by sending a notice of 

proposed civil penalty to the person charged with a violation ... " Therefore, under the regulation, 

the dispositive amount for determining jurisdiction is the amount contained in the notice of 

proposed civil penalty. The Administratorhas, in past cases, reiterated this interpretation of the 

meaning of "initiated" in the context of civil penalty actions. 12 

When the notices of proposed civil penalties were issued in Case No. 2014WP130012 and 

Case No. 2014WP130023, they each sought civil penalties below the $50,000 threshold for 

exclusive jurisdiction by United States distri.ct courts. Therefore, the rule conferring exclusive 

jurisdiction to the United States district courts did not apply when each case was initiated. 13 

These cases could be, and were, properly brought to a hearing before an Administrative Law 

Judgepursuantto 14C.F.R. § 13.16(i). 

9 14 C.F.R. § 13.16(b)(3). 10 Respondent's Mot. to Dismiss, Ex. 2. 

11 See Transcript at 1-14. 12 See In re Royal Avionics Systems, Inc., FAA Order No. 2002-6 at 7-8 (Decision and Order, Apr. 16, 2002). See 

also In re High Exposure, Inc., FAA Order No. 2003-7 at 8 (Decision and Order, Sept. 12, 2003) (fmding a case 

"initiated" at the time the agency issues the notice of proposed civil penalty to the Respondent). 13 The initiated dates correspond with when the Notice of Proposed Civil Penalty was served upon the Respondent in 

each case. See Complainant's Reply, Ex. 1 and 2. 

Docket No. FAA- 2014-1116 Order Denying Respondent's Motion To Dismiss, page 3 
It is worth discussing the fact that Complainant in this case did not follow the guidance found 

in Chapter 6 of FAA Order 2150.38, which states in relevant part: 

Legal counsel may initiate separate [Enforcement Investigative Reports] EIRs in one legal 

enforcement action provided consolidating these EIRs does not change the jurisdictional forum of 

any one of the EIRs. For example, if there are three separate EIRs regarding unrelated inspections 

proposing to assess civil penalties of $30,000 each against a small business concern, legal counsel 

cannot combine them into a single civil penalty action because that would change the forum from 

the DOT Office of Hearings to a U.S. district court. Once complaints have been filed, legal 

counsel may move to consolidate the cases for litigation purposes. 14 

The Complainant's decision to consolidate Case No. 2014WP130012 and Case No. 

2014W0130023 prior to filing the complaint was inconsistent with this guidance. However, 

FAA Order 2150.3B is regulatory guidance that is not binding, 15 and does not alter the law which 

states that the amount in controversy at the initiation of a civil penalty action, which occurs when 

the notice of proposed civil penalty is served, determines jurisdiction. 

Accordingly, the undersigned judge retains jurisdiction in these cases. 

Pursuant to 14 C.F.R. § 13.205(a)(8), IT IS HEREBY ORDERED: the Respondent's 

Motion to Dismiss is denied. 16 

Attachment: Service List 

14 FAA Order 2150.3B, at 6-5, ~ 6 (Oct. I, 2007). 

;;;;<----

DOUGLAS M. RAW ALD 

Administrative Law Judge 

15 See In re Delta, FAA Order No. 2014-814 at 9 (Order Denying the Respondent's Motion to Dismiss for 

Insufficiency of Pleadings, Apr. 19, 2016) (finding the FAA Administrator expressed an intent that FAA Order 

2150.3B should not be deemed binding); see also FAA Legal Interpretation at 2 (May 6, 2011), 2011 WL 1874485 

(finding that as a general principle, guidance material such as FAA Order 8900.1 does not have the force and effect 

of a regulation, and to the extent material in the FAA Order conflicts with a binding regulation, the regulation takes 

precedence). 

16 At the start of the hearing, the Complainant orally moved to amend the complaint. In particular, Complainant's 

counsel stated that he "wanted to issue an amended complaint to separate the cases back into their original form 

where there's two separate cases." Transcript at 1-13. Both parties addressed the issue of the Complainant 

amending the complaint in their briefs regarding the jurisdictional issue. The Respondent argued that the 

Complainant lacked the good cause required under 14 C.F.R. § 13.214(b)(2) to amend a complaint less than 15 days 

before the scheduled hearing date, and that the Complainant's proposed amendment would prejudice its case. In 

addition to noting the undersigned judge's September 29, 2016 deadline for filing all motions, the Complainant 

argued that the correction was minor and would not prejudice the Respondent. Given the finding that the 

undersigned judge retains jurisdiction over these cases despite their being filed with the Office of Hearings together 

in one complaint, Complainant's motion to amend the complaint is moot. 

Docket No. FAA- 2014-1116 Order Denying Respondent's Motion To Dismiss, page 4 
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 2W100017 

ONE COPY. 

Robert L. Feldman, Respondent's Counsel 

8900 SW 107th Avenue, Suite 203 

Miami, FL 33176 

TEL: 305-598-4841 

FAX: 305-598-4842 

Don Bobertz, Complainant's Counsel 

Office ofthe Regional Counsel, AWP-7 

Federal Aviation Administration 

Western-Pacific Region 

P. 0. Box 92007 

Los Angeles, CA 90009-2007 

TEL: 310-725-3454 

FAX: 310-725-6816 

The Honorable Douglas M. Rawald, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

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

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

FAX: 202-366-7536 

Docket No. FAA-2014-1116 

(Civil Penalty Action) 

17 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviati9n Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

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