; SERVED: SEPTEMBER 12, 2012 

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC
IN THE MATTER OF AERO MICRONESIA, INC. dba ASIA PACIFIC AIRLINES, INC. FAA DOCKETNO. [TOBE ASSIGNED] (Civil Penalty Action) FDMS NO. FAA-2012-04691

ORDER OF CHIEF ADMINISTRATIVE LAWJUDGE ..._, = ,__, (/) p; \:) 

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DENYING RESPONDENT'S MOTION TO STRIKE AMENDED COMPLAINT 

### This proceeding arises from the Complaint served May 11, 2012, alleging a violation of the Federal Aviation Regulations, 14 C.F.R. § 121.137(b),2 

### the Amended Complaint served June 25,2012, alleging a violation of 14 C.P.R.§ 121.137(a)/andRespondent's request for a hearing dated May 4, 2012. The undersigned administrative lawjudge was assigned to this proceeding by order served May 21, 2012. Bymotion served July 13, 2012, Respondent seeks to strike the Amended Complaint because Complainant failed to showgood cause for filing it after the June 22, 2012, deadline in

1 This orderpertains only to the case originally identified as Case No·. 20IIWP350005. Thejointresponse of the parties to our May 2I, 20I2, OrderEstablishing Procedures, pertained to both FAA-2012-0468, which refers to the case originally identified as Case No. 2011WP350018, and FAA-2012-0469, and was so captioned. See Proposed Procedural Schedule, StatementReSettlementEfforts, and Proposed Hearing Site at I (June 22, 2012). Because no consolidation was requested or ordered, captions with both FDMS numbers in subsequent pleadings pertaining to only one case (including the motions and Amended Complaint in this case) are erroneous and should cease. 2 Subsection (b) of§ 121.137 provides- "Eachperson to whom a manual or appropriate parts ofit are furnished under paragraph (a) ofthis section shall keep it up-to-date with the changes and additions furnished to that person and shall have the manual or appropriate parts ofit accessible when performing assigned duties." 3 Subsection (a) of§ 121.137 provides- "Each certificate holder shall furnish copies ofthe manual required by§ 121.133 (and the changes and additions thereto) or appropriate parts ofthe manual to- (1) Its appropriate ground operations and maintenance personnel; (2) Crewmembers; and (3) Representatives ofthe Administrator assigned to it."our Order Establishing Procedures.4 Complainant opposesthe motion.5 Forthe reasons set forth below, we deny Respondent's motion
.. 

### BACKGROUND On or about July 6, 2011, Complainant issued a Notice ofProposed Civil Penalty (NPCP) to Respondent,6 alleging a violation ofsubsection (a). 7 OnAugust 3, 2011, Respondent sent to Complainant's Counsel a**letterd~scussing** the circumstances ofthe outdated manuals discovered
on December 8, 2010. 8 Respondent argued that action against it was inappropriate because the manager offlight crewmembertraining was not an employee ofRespondent but "avendor providing an FAA approved training service to our company" and "is required tohave appropriate [up-to-date] manuals."9 OnApril24, 2012, Complainant addressed a Final NPCP to Respondent, alleging a violation ofsubsection (b). 10 The request for hearing 11 and Complaint alleging a violation of subsection (b) 12 ensued. OnJune 15, 20 12, Respondentmoved for dismissal ofthe Complaint because it failed "to state a violation by Aero Micronesia," in that subsection (b)"does not apply to certificate holders." 13 Rather, Respondent argued,§ 121.137 "differentiates betweenthe responsibility of the certificate holder to supply certain personnel with the manual," and "the 'responsibility ofthe

4 Motion to Strike and Answer to Amended Complaint at 1. 5 Complainant's Reply to Respondent's Motion to Strike ("Opposition to Strike") at 2. 6 Complainant's Reply to Respondent's Motion to Dismiss ("Reply to Dismissal") Ex. 2, at 1 (Letter, Michael R. Quinn, President, Asia Pacific Airlines, to Complainant's Counsel, stating that "I am in receipt ofyour letter dated July 6, 2011," and that "attached to this letter is the Reply to Notice Form with Box 2 checked"). 7 Reply to Dismissal at 2 ("The original
...NPCP
... cited [subsection (a)]
... as the apparent violation."). 8/d. Ex. 2, at 1-2. 9/d. at 2. 10 See Complaint pt. I, at 1 (asserting that Respondent was advised through a Final Notice ofProposed Civil Penalty dated April24, 2012). 11 Letter, Michael R. Quinn, President, Asia Pacific Airlines, to Complainant's Counsel, Subject: Case No. 2011WP350005 (May 4, 20 12). 12 Complaintpt. III, at 2. 13 Motion to Dismiss para. 1, at 1. 

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person to whom a manual
... [is] furnished to keep that manual up-to-date,"' 14 and subsection (b) "does not confer any additional responsibility onAero Micronesia, the certificate holder, beyond that required by [subsection (a)] to furnish the appropriate manual parts and changes and revisions." 15 Complainantreplied that, because "Respondent contended that it timely furnished copies ofthe manual updates to the personresponsible for maintaining and updating the manuals,
... Complainant
... issued an AmendedNPCP to cite

# t subsection (b)] as the apparent violation," conceded that subsection (a) "appearsto be the more appropriate violation to cite for the certificate holder's responsibility," and submitted the Amended Complaint. 16 Respondent argu(!s that, under our Order Establishing Procedures, "any amendmentto the Complaint was to be filed by June 22, 2012"; 17 that "Complainant cannot ignore our order without showing good cause"; that Complainant could have alleged a subsection (a) violationin the Complaint but "chose to proceed un_der subsection (b)" after Respondent "established that there was no violation" ofsubsection (a); and that"Complainant switches the allegation again because Respondent has shown that subsection (b) is inapplicable." 18

14 Id para. 6, at 2. 15 Jd para. 7, at 2. 16 Reply to Dismissal at 2. 17 The accompanying footnote reads:

" 1Further amendments are not anticipated absent good cause shown. Though 14 C.F.R. § 13.214(b)(1) permits amendments at any time more than 15 days before a hearing, utilization of that provision would prevent orderlypreparation for a hearing and couldprevent any hearing at all, because notice ofa hearing must be given 60 days in advance. § 13.22l(a). An amendment that might be.filed 15 days priorto the hearing would entitle the otherparty up to 20 days in which to reply(§ 13.214(c)), and could generate a new round ofschedules(§ 13.217), motions (§ 13.218), and discovery(§ 13.220), necessitating a postponement ofthe hearing, a new 60-day notice, etceteraadinfinitum." Order ofChiefAdministrative Law Judge Establishing Procedures at 2 n.l (emphasis in original). 18 Motion to Strike at I. 

### -3-Citing 14C.F.R. 

### § 13.214, 19 Complainant argues that, when the amendment was filed "merely 3 days beyondthe date imposed by the Order," no answer hadbeen filed, discovery had not commenced, and the agreed hearing date was almost six months inthe future; and asserts that "the factual allegations remain the same ...thatthe person in charge ofRespondent's training had outdated manuals."20 

### DISCUSSION The Rules ofPractice for FAA Civil Penalty Proceedings permit amendment ofa complaint "not laterthan 15 days before the scheduled date ofa hearing
... without the consent

.ofthe administrative lawjudge."21 Because permitting amendments at an advanced stage inthe
. proceedings couldhave unacceptable consequences, we do not anticipate amendments beyond 30 days after service ofthe procedural order absent good cause.22 Since the amendment was served only 3 days after the deadline for amendments stated in the procedural order, Respondenthas claimedno lack ofnotice ofthe legal orfactual bases forthe Amended Complaint, and the amendment occurred within the two-year statute oflimitations for filing an NPCP, we find good
cause for filing the Amended Complaint. Accordingly;Respondent's motion is denied. 

### SO ORDERED.

19 Opposition to Strike at 2. Section 13.214(b)(l) provides- "Aparty shall file an amendment to a complaint or an answer within the following: (1) Not laterthan 15 days before the scheduled date ofa hearing, a party may amend a complaint or an answer without the consent ofthe administrative lawjudge." · 20 !d. at 1. 21
. . 14 C.F.R. § 13.214(b)(l). 22 See supra note 17. 

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SERVICE LIST ORIGINAL & ONE COPY. 

### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W100023 ONE COPY 

### Michael R. 

### Quinn, President Aero Micronesia, Inc. dbaAsia Pacific Airlines, Inc., Respondent 

### 156 Diablo Road, Suite 203 Danville, CA 94526 TEL: 925-362-4430 FAJ(: 925-362-4432 Don Bobertz, Complainant's Counsel 

### Office ofthe Regional Counsel, AWP-7 PO Box 92007 Los Angeles, CA 90009-2007 TEL: 310-725-3454 FAJ(: 310-725-6816 The Honorable Ronnie A. Yoder,

Chief AdministrativeLawJudge 

### U.S. DepartmentofTransportation Office ofHearings, M-20 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2142 FAJ(: 202-366-7536 FDMS NO. FAA-2012-0469 (Civil Penalty Action)

23 Service was by U.S. Mail. For service inperson or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430. 

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