; 

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 DOCKET NO. [TO BE ASSIGNED] 

(Civil Penalty Action) 

FDMS NO. FAA-2012-04691 

ORDER OF CHIEF ADMINISTRATIVE LAW JUDGE 

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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)/and Respondent's request for a hearing 

dated May 4, 2012. The undersigned administrative law judge was assigned to this proceeding 

by order served May 21, 2012. 

By motion served July 13, 2012, Respondent seeks to strike the Amended Complaint 

because Complainant failed to show good cause for filing it after the June 22, 2012, deadline in 

1 This order pertains only to the case originally identified as Case No·. 20 I I WP350005. The joint response of 

the parties to our May 2I, 20I2, Order Establishing Procedures, pertained to both FAA-2012-0468, which refers to 

the case originally identified as Case No. 2011 WP350018, and FAA-2012-0469, and was so captioned. See Proposed Procedural Schedule, Statement ReSettlement Efforts, 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-

"Each person to whom a manual or appropriate parts of it are furnished under paragraph (a) of this 

section shall keep it up-to-date with the changes and additions furnished to that person and shall 

have the manual or appropriate parts of it 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 of the manual to-

(1) Its appropriate ground operations and maintenance personnel; 

(2) Crewmembers; and 

(3) Representatives of the Administrator assigned to it." 
our Order Establishing Procedures. 4 Complainant opposes the motion. 5 For the reasons set forth 

below, we deny Respondent's motion .. 

BACKGROUND 

On or about July 6, 2011, Complainant issued a Notice of Proposed Civil Penalty (NPCP) 

to Respondent,6 alleging a violation of subsection (a).7 On August 3, 2011, Respondent sent to 

Complainant's Counsel a letterd~scussing the circumstances of the outdated manuals discovered 

on December 8, 2010. 8 Respondent argued that action against it was inappropriate because the 

manager of flight crewmember training was not an employee of Respondent but "a vendor 

providing an FAA approved training service to our company" and "is required to have 

appropriate [up-to-date] manuals. "9 

On April24, 2012, Complainant addressed a Final NPCP to Respondent, alleging a 

violation of subsection (b ). 10 The request for hearing11 and Complaint alleging a violation of 

subsection (b) 12 ensued. 

On June 15, 20 12, Respondent moved for dismissal of the 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 between the responsibility of 

the certificate holder to supply certain personnel with the manual," and "the 'responsibility of the 

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 of your 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 of Proposed Civil 

Penalty dated April24, 2012). 11 Letter, Michael R. Quinn, President, Asia Pacific Airlines, to Complainant's Counsel, Subject: Case No. 

2011 WP3 50005 (May 4, 20 12). 12 Complaint pt. 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 on Aero Micronesia, the certificate 

holder, beyond that required by [subsection (a)] to furnish the appropriate manual parts and 

changes and revisions." 15 Complainant replied that, because "Respondent contended that it 

timely furnished copies of the manual updates to the person responsible for maintaining and 

updating the manuals, ... Complainant ... issued an Amended NPCP to cite t subsection (b)] as 

the apparent violation," conceded that subsection (a) "appears to 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 amendment to the 

Complaint was to be filed by June 22, 20 12"; 17 that "Complainant cannot ignore our order 

without showing good cause"; that Complainant could have alleged a subsection (a) violation in 

the Complaint but "chose to proceed un_der subsection (b)" after Respondent "established that 

there was no violation" of subsection (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 orderly preparation for a hearing and could prevent any hearing at 

all, because notice of a hearing must be given 60 days in advance. § 13.22l(a). An amendment 

that might be. filed 15 days prior to the hearing would entitle the other party up to 20 days in which 

to reply(§ 13.214(c)), and could generate a new round of schedules(§ 13.217), motions 

(§ 13.218), and discovery(§ 13.220), necessitating a postponement of the hearing, a new 60-day 

notice, etcetera ad infinitum." 

Order of Chief Administrative Law Judge Establishing Procedures at 2 n.l (emphasis in original). 18 Motion to Strike at I. 

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Citing 14 C.F.R. § 13.214,19 Complainant argues that, when the amendment was filed 

"merely 3 days beyond the date imposed by the Order," no answer had been filed, discovery had 

not commenced, and the agreed hearing date was almost six months in the future; and asserts that 

"the factual allegations remain the same ... that the person in charge of Respondent's training 

had outdated manuals."20 

DISCUSSION 

The Rules of Practice for FAA Civil Penalty Proceedings permit amendment of a 

complaint "not later than 15 days before the scheduled date of a hearing ... without the consent 

. of the administrative law judge."21 Because permitting amendments at an advanced stage in the . 

proceedings could have unacceptable consequences, we do not anticipate amendments beyond 30 

days after service of the procedural order absent good cause.22 Since the amendment was served 

only 3 days after the deadline for amendments stated in the procedural order, Respondent has 

claimed no lack of notice of the legal or factual bases forthe Amended Complaint, and the 

amendment occurred within the two-year statute of limitations 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-

"A party shall file an amendment to a complaint or an answer within the following: 

(1) Not later than 15 days before the scheduled date of a hearing, a party may amend a 

complaint or an answer without the consent of the administrative law judge." · 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 2W1 00023 

ONE COPY 

Michael R. Quinn, President 

Aero Micronesia, Inc. dba Asia 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 of the Regional Counsel, A WP-7 

PO Box 92007 

Los Angeles, CA 90009-2007 

TEL: 310-725-3454 

FAJ(: 310-725-6816 

The Honorable Ronnie A. Yoder, 

Chief Administrative Law Judge 

U.S. Department of Transportation 

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 in person 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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