UNITED STATES DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION

WASHINGTON, DC

In the Matter of: RIAN C. SEEMAN

FAA Order No. 2014-3

FDMS No. FAA-2012-01981

Served: October 29, 2014

ORDER DEEMING MOTION FOR LEAVE TO WITHDRAW COMPLAINT

AS A NOTICE OF APPEAL AND APPEAL BRIEF, 

GRANTING THE REQUEST TO WITHDRAW THE COMPLAINT, 

VACATING THE ALJ’S ORDER ASSESSING CIVIL PENALTY

AND DISMISSING THE PROCEEDINGS WITH PREJUDICE2

After Administrative Law Judge (ALJ) J.E. Sullivan issued an order entering a default 

judgment and assessing a $4,200 civil penalty against Rian Seeman (Respondent), Complainant 

filed its Motion for Leave to Withdraw the Complaint, in which Complainant requested that the 

ALJ vacate that order. Complainant argued that the ALJ should vacate the order because the 

parties settled before the ALJ issued the order. The ALJ referred Complainant’s motion to the 

Administrator for consideration as an appeal. As will be explained further, the Administrator 

construes the motion as a notice of appeal and appeal brief, grants the request to withdraw the 

complaint, vacates the ALJ’s order, and dismisses the proceedings with prejudice.

 

1 Generally, materials filed in the FAA Hearing Docket are also available for viewing at 

http://www.regulations.gov. 14 C.F.R. § 13.210(e)(1). 

2 The Administrator’s civil penalty decisions, along with indexes of the decisions, the rules of 

practice, and other information, are available on the Internet at the following address: 

www.faa.gov/about/office_org/headquarters_offices/agc/pol_adjudication/AGC400/Civil _Penalty/. See

14 C.F.R. § 13.210(e)(2). In addition, Thomson Reuters/West Publishing publishes Federal Aviation 

Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw (FTRANFAA database). For additional information, see the Web site.
2

A. Background.

On February 17, 2012, Complainant filed its complaint against Seeman, seeking a $4,200 

civil penalty for alleged violations of 14 C.F.R. § 121.317. Seeman neither filed an answer nor 

attended the two prehearing conferences held by the ALJ. After the second prehearing 

conference, the ALJ issued an order in which she directed that Complainant “may file a Motion 

to Deem Allegations Admitted and For Default Judgment on or before July 31, 2012.”

Complainant filed its motion on July 27, 2012. On August 31, 2012, the ALJ granted 

Complainant’s motion and assessed a $4,200 civil penalty against Seeman.

Five days later, Complainant sent the ALJ its Motion for Leave to Withdraw the 

Complaint, in which Complainant requested that the ALJ vacate the order assessing civil penalty. 

Complainant explained that the parties had settled this matter on August 3, 2012. The ALJ 

referred Complainant’s Motion for Leave to Withdraw the Complaint to the Administrator for 

consideration as a notice of appeal.

B. The Appeal.

The Administrator has held that once the ALJ issues an initial decision or order assessing 

civil penalty, the ALJ loses jurisdiction over the matter and does not have the authority to 

reconsider the initial decision, to dismiss the complaint without prejudice, Keller, FAA Order 

No. 2011-2 (January 11, 2011), or to vacate the initial decision, Degenhardt, FAA Order No. 

1990-16 at 6 (August 16, 1990).3 In past cases, the Administrator has construed motions to 

reconsider or to vacate that were filed with the ALJ as notices of appeal. E.g., Keller, FAA 

Order No. 2011-2 at 6-7. In this case, the Administrator construes Complainant’s motion for 

 

3 The precedent set in this line of cases is based upon Section 13.232(d) of the Rules of Practice 

in Civil Penalty Proceedings. Section 13.232(d) provides that “[u]nless appealed pursuant to § 13.233 of 

this subpart, the initial decision issued by the administrative law judge shall be considered an order 

assessing civil penalty if the administrative law judge finds that an alleged violation occurred and 

determines that a civil penalty, ... is warranted.” 14 C.F.R. § 13.232(d). 
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leave to withdraw the complaint and requesting that the ALJ vacate the ALJ’s order as a notice 

of appeal.

4

 Further, Complainant’s motion to vacate is sufficiently detailed to be construed as an 

appeal brief. Keller, FAA Order No. 2011-2 at 7 (“[t]he Administrator has construed notices of 

appeal as appeal briefs ... when the notice of appeal contained sufficient detail to explain the 

basis of the ... appeal.”)5 

C. Withdrawal of the Complaint.

Section 13.215 provides that the agency attorney may withdraw its complaint at any time 

before or during the hearing without the consent of the ALJ. 14 C.F.R. § 13.215. In this case, 

the ALJ did not hold a hearing. If the parties had withdrawn the request for hearing and the 

complaint at the time they settled, the ALJ would have been required under Section 13.215 to 

dismiss the proceedings with prejudice rather than issue a default judgment. 

Although the Rules of Practice do not provide specifically for withdrawals of the request 

for hearing or the complaint after the issuance of an initial decision or order assessing civil 

penalty, the Administrator in the past has accepted withdrawals of the complaint while an appeal

from an initial decision or order assessing civil penalty was pending.

6

 Accordingly, 

Complainant’s request in this case to withdraw its complaint is granted. 

 

4 Complainant filed the motion 5 days after the ALJ issued the order, within the timeframe for 

filing a notice of appeal. See 14 C.F.R. § 13.233(a) (requiring that a party file a notice of appeal within 

10 days after the issuance of an initial decision) and 14 C.F.R. § 13.211(e) (the “mailing rule”) providing 

an additional 5 days if, as in this case, the ALJ’s order was served by mail.) 

5 The Rules of Practice in Civil Penalty Proceedings require a party to perfect its appeal by filing 

an appeal brief not later than 50 days after service of the ALJ’s written initial decision on the party. 

14 C.F.R. § 13.233(c). 

6

See e.g., Wine Country Helicopters, Inc., FAA Order No. 2008-13 (December 19, 2008) (in 

which after the respondent filed a motion that was construed as a notice of appeal and appeal brief from a 

written initial decision, the agency attorney withdrew the complaint; the Administrator dismissed the 

appeal as moot and dismissed the proceedings with prejudice); Lewis, FAA Order No. 2005-11 (April 27, 

2005) (in which the Administrator dismissed the respondent’s appeal from an order assessing civil 

penalty as moot and the proceedings with prejudice after the parties settled and the agency attorney 
4

In light of the withdrawal of the complaint, the order assessing civil penalty lacks the 

force and effect of law. Wine Country, FAA Order No. 2008-13 (December 19, 2008); SONICO, 

FAA Order No. 2000-24 (December 21, 2000). 

D. The Request to Vacate the Order Assessing Civil Penalty.

The remaining question is whether the ALJ’s order assessing civil penalty should be 

vacated as requested by Complainant. The leading case on vacatur is United States v. 

Munsingwear, Inc., 340 U.S. 36 (1950). Under Munsingwear, when a case on appeal becomes 

moot, the “established practice ... is to reverse or vacate the judgment below and remand with a 

direction to dismiss.” Id., at 39. There are exceptions to this rule. For example, in U.S. Bancorp 

Mortg. Co., v. Bonner Mall P’ship, 513 U.S. 18 (1994), the Supreme Court held that absent 

exceptional circumstances, vacatur was inappropriate because the parties had settled while the 

appeal was pending. The Court explained that when parties settle a case while an appeal on the 

merits is pending, the matter has not become moot due to circumstances unattributable to the 

parties but instead:. 

the losing party has voluntarily forfeited his legal remedy by the ordinary processes of 

appeal or certiorari, thereby surrendering his claim to the equitable remedy of vacatur. 

The judgment is not unreviewable, but simply unreviewed by his own choice. 

Id., at 25.

In SONICO, the Administrator denied a request to vacate an initial decision when the 

parties settled the case while the appeal was pending. In that case, the ALJ had held a hearing 

and issued a written initial decision, from which both parties appealed. Prior to the due date of 

the parties’ reply briefs, the parties settled, the respondent withdrew the request for hearing and 

 

withdrew the complaint instead of filing a reply brief); Sutton, FAA Order No. 95-6 (April 26, 1995) 

(dismissing the Respondent’s appeal and dismissing the complaint with prejudice after the parties filed a 

document entitled “Joint Notice of Settlement” advising that the case had been settled and that the 

respondent’s appeal and the agency’s complaint had been withdrawn).
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its appeal from the initial decision, and the complainant withdrew its complaint, amended final 

notice of proposed civil penalty and appeal. The parties requested that the Administrator vacate 

the initial decision.

7 Relying upon U.S. Bancorp, the Administrator denied the request to vacate 

the initial decision.

8

The instant case differs from U.S. Bancorp and SONICO because the parties settled the 

case before the ALJ issued the default judgment. Hence, as explained in a case in which the 

court vacated a judgment entered after a settlement, Tembec, Inc. v. United States:

Thus, this is not a situation where a losing party has abandoned its right to review by 

entering into a postjudgment settlement.... Here, a party has not rendered its case 

unreviewable by its “own choice” upon surrendering its right to have an adverse 

judgment overturned. [citations omitted.] Rather, this is a case where the terms of the 

Agreement were agreed to before the judgment was entered, and more importantly, 

before the parties knew which would prevail.

Tembec, Inc., v. U.S., 475 F. Supp. 2d 1393, 1402 (Ct. Int’l Trade 2007) (emphasis added).

Nonetheless, in Tembec, the court vacated only the judgment that it entered about one 

month after the parties reached their agreement, but not the decision itself. The court explained 

that it was appropriate to vacate the judgment because “no case or controversy remains as the 

result of prejudgment and postjudgment9events.” Tembec, 475 F. Supp. 2d at 1401. However, 

 

7 The Administrator wrote that it was not clear whether the Rules of Practice gave him the 

authority to vacate an order of the ALJ. Section 13.233(j) explicitly gives the Administrator the authority 

to reverse an initial decision. 14 C.F.R. § 13.233(j). There is no practical difference between reversing 

and vacating a default judgment assessing a civil penalty.

8 But see Sutton, FAA Order No. 95-6 (April 26, 1995), in which the Administrator vacated the 

order assessing civil penalty issued by the ALJ without considering the circumstances in which vacatur 

would be appropriate. In that case, the respondent filed a timely notice of appeal from an ALJ’s order 

assessing a $1,000 civil penalty due to the respondent’s failure to file an answer. While the appeal was 

pending, the parties advised the Administrator that (1) they had settled the case, (2) Respondent was 

withdrawing his appeal and (3) Complainant was withdrawing the complaint. The Administrator 

dismissed Respondent’s appeal, vacated the order assessing civil penalty, and dismissed the proceedings 

with prejudice. 

9 The court held that at the time the judgment was entered, the case was not moot because part of 

the agreement was not put into effect until after the judgment was entered. The controversy was still live 
6

because the case was not moot at the time of the entry of the judgment, the court did not 

withdraw its decision. The court distinguished the decision, consisting of the findings of fact and 

conclusions of law, from the judgment, in which the court pronounces the decision and the act 

that gives it legal effect. The court wrote, “Judicial precedents are presumptively correct and 

valuable to the legal community as a whole. They are not merely the property of private litigants 

and should stand unless a court concludes that the public interest would be served by a vacatur.” 

Tembec, 475 F. Supp. 2d at 1402-1403, quoting U.S. Bancorp, at 513 U.S. at 26. 

In this case, the parties settled the matter before the ALJ ruled on Complainant’s Motion 

to Deem Allegations Admitted and for Default Judgment. Thus, neither party abandoned any 

right to review an unfavorable decision by the ALJ. The settlement ended the dispute between 

the parties, and had the ALJ been notified of the settlement in a timely fashion, she would not 

have issued the order assessing civil penalty. Further, the ALJ did not issue a separate decision 

and judgment in this matter. The ALJ’s order is of limited value in terms of public guidance 

because she found Respondent in default. Hence, the ALJ’s Order Granting Motion to Deem 

Allegations Admitted, Granting Default Judgment, and Assessing Civil Penalty is vacated in its 

entirety. 

Accordingly, the request to withdraw the complaint is granted, the Order Granting 

Motion to Deem Allegations Admitted, Granting Default Judgment, and Assessing Civil Penalty 

is vacated in its entirety, and the proceedings are dismissed with prejudice.

[Original signed by the Administrator]

MICHAEL P. HUERTA, ADMINISTRATOR

Federal Aviation Administration

 

until the Court of International Trade (CIT) modified injunctions against liquidation and the Bureau of 

Customs and Border Protection relayed additional liquidation instructions. 
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