SERVED: JANUARY 31,2013 

U.S . DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON. DC 

IN TI-lE MATTER OF 

AERO-WELD. INC. 

Respondent 

FAA DOCKET NO. [TO BE ASSIGNED] 

(Civil Penalty Proceeding) 

FDMS NO. F AA-20 12-0909 

NOTICE OF ASSIGNMENT AND ORDER OF CHIEF ADMJNISTRA TIVE LAW JUDGE 

DENYING MOTION TO DISMISS REQUEST FOR HEARING 

This proceeding (heretofore designated as Case No. 20 11 SW170132) has been assigned 

to the undersigned. !\II future pleadings and other communications regarding this proceeding 

shall be served on the Judge, the FAA Hearing Docket. and the other persons on the attached 

Service List. 

By ··Complai nant" s Motion to Dismiss the Request for a Hearing .. served November 9. 

2012. ('"Motion .. )

1 Complainant seeks to dismiss Respondent" s Request tor Hearing. arguing that 

Respondent failed to timely request a hearing 2 because it- (a) responded to the Notice of 

Proposed Civil Penalty ( .. Notice .. )

3 with an untimely request tor informal conference pursuant to 

1 The Motion. with Respondent· s answer. dated November 14. ~0 12 ("Answer .. ). was received here on 

December 18. 2012. attached to an email from the Hearing Docket. stati ng . .. I faxed this document to your office on 

I 1115/1 2. and have not received [a Notice of Assignment].'' Though the Federal Docket Management System shows 

the Motion posted therein on November 15. 201 2. no such fax was received in the Office of Hearings. 

" "Respondent's request for hearing dated August 15. 20 12. was untimely. Pursuant to 14 C. F. R 13 .16(g)(2 ). 

Respondent has a second opportunity to Request a hearing after issuance of a Final Notice of Proposed Civil 

Penaltv. which Respondent failed to do ... Motion pt. II. at 3. 

-' :.Complainant issued a Notice of Proposed Civil Penalty (Notice) to Respondent on January 26. 20 12." 

Motion pt. I. at I. No copy of the Notice accompanies the Motion. 
14 C.F.R. ~ 13. 16(t)(2)(iii):4 (b) responded to Complainant's settlement o1Te r

5 with a request for 

hearing that Complainant failed to noti ce or act on and simply placed in the enforcement fil e:(' 

and (c) did not make a second request for hearing within 15 days after receiving the Final Notice 

of Proposed Civil Penalty c·Final otice-·).

7 Respondent answers that ··it is known that \\"e ha,·e 

requested the formal llearing:·s 

The rules governing FAA in\'estigati\'e and enforcement proceedings are set forth in Part 

13 ofthe Federal Aviation Regulations (14 C.F.R. Part 13 (201 2)). The rules permit a 

respondent. at each stage of the notice procedure. at least

9 two options- (a) to ··Submit the 

amount or the proposed ci,·il penalty or an agreed-upon amount. in which case either an order 

assessing civil penalty or compromise order shall be issued in that amounC: 10 or (b) to ··Request 

a hearing. in which case a complaint shall be tiled \ovith the hearing docket clerk:· II Either 

~··on or about April 23. 20 I 2. [having received no retum receipt. no returned regular mail. and no rep ly.] 

Complainant mail ed a Final Notice of Proposed Civil Penalty to Respondent:· ld. at 2. No copy or the Final Notice 

accompanies the Motion. ··o n Apri I 26. 20 12. the agency attorney received. as an anachment to an e-mail. a Reply 

Form dated January 2 1. 20 12. which requested a telephonic informal confe rence:· !d. (citing Exhibit 

A). ·_-Complainant \\ ithdrew the [Final Notice) ... !d. (citing Ex hibit B). Exhib it A actually renects .. Date J-3 1- 12:· 

' ··compl ainant held an informal conference with Respondent on June 5. 20 12 ... !d. .. An offer to sett le the 

matter \\'aS ma iled to Respondent on July 25. 2012." Jd (cit ing Exhibit C). 

" .. On or about August 17. 20 12. Complainant received from Respondent a second Reply Form. dated August 

15. 20 I 2. ot having received a response to her settlemen t offer. agenc) counse l placed this second Reply Form in 

the enforcement fil e:· hi . .. On or about September 17. 20 12. the agency attorney placed a cnll to Respon dent 

regard ing the settlement offer made on July 25th . She was told by Respondent that they had made a request for 

hearing. Complainant then\\ aited for confinnation that a request for hearing had in fact been made by Respondent. 

either in the form of a letter or \Hiting. not realizing that Respondent was referring to the second Reply Form dated 

August I 5. 20 I 2.'· !d. 

' On September 18. 2012 ... agency counsel then issued a Final mice of Proposed Civil Penalty (Final Notice) 

to Respondent:· !d. . at 3 ... On ovcmbcr 8. 20 I 2. \\ hen no response to the Final otice was received from 

Respondent. and before [Complainant issued] an Order Assessing a Civil Penalt;. ... Respondent was called to 

determ ine whet her or not any response to the Final Notice had been sent. Respondent. instead. sent Complainant n 

copy of the second Reply Form dated August 15. 20 1 ::?. ... !d. (citing Exhibit D). Exhibit Dis. as Complainant states. 

a .. Reply Form [upon \l hich is] checked paragraph 7 on the second page ofthe form. requesting a hearing:· !d. X 

. AllS\1 cr. at I. 

q At the notice stage. respondent may also submit one of three types of wrirten requests. 14 C.F.R. 

~ 13 .16( 1)(2). In this case. Respondent requested an informal conference with the ag,ency anorney. Though 

Complainant states. and Respondent does not contest. that the request was untimely. an informal conference 

proceeded and produced a settlement offer. S{!e supra note 5. 

10 ~ 13. 16(1)( I). (g)(2)(i). 

II ~ 13.16(t)(3). (g)(2)(ii). See also ~ 13. 16(h) c· Any person charged with il violation may request a hearing. 

pursuant to paragraph (1)(3) or paragraph (g)(2)( ii) or th is section. to be conducted in accordance with the 

procedures in subpart G of this pa11 ... ): ~ 13. 16(i) ( .. If the person charged with a violation requests a hearing 

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option must be exercised within 30 days of receipt of a notice of proposed civi l penalty 1

:! or 

within 15 days of receipt of a linal notice of proposed civil penalty.

13 Failure to timely request a 

hearing can. under certain circumstances. result in an order assessing ci\·il pcnalty.

14 The rules 

do not require an order assessing civil penalty or even a final noti ce of proposed civil penalty 

when one requests a hearing he(hre receiving the final notice of proposed civil penalty: however. 

they do require ti ling of a complaint or a motion to dismiss the request lo r hearing --not later than 

20 days a fter receipt by the agency allorney o r a request fo r hcaring."" 15 

Though fa ilure to file a complaint ,.~, ithin the 20-day tiling period is not a j urisdictional 

bar to a civil penalty action. failure to timely file a complaint or move to dismiss the request tor 

hearing will not be excused absent a demonstration of good cause

16 

and could result in dismissal 

of the complaint 17 or denial of the motion to dismiss the request for hearing.

1

R Good cause to 

accept a late-fil ed complaint has been fo und '"·hen the earlier-filed complaint omitted 

respondent" s name but was sent to respondent"s counsel and was essentially the same. including 

the case number. as the tinal notice of proposed civil penalty: 

19 when a complainant .. attempted 

lin good faithj to tile the document .. but !'ailed because the FAA hearing docket ncYer received 

pursuant to paragraph (1)(3} or paragraph (g)(2Xii) of this ection. the original complaint shall be fi led with the 

hearing docket clerk and a copy shall be sent to the person requesting the hearing.") 

~ 13.16(f). 

l ;l ~ 13.16(g)(2). 

~ ~ 13 .16(d)(2) prov ides that ··an order assessing civil penalty may be issued if a person charged with a 

vio lation does not request a hearing under paragraph (g)(2 )(ii) o!'this section with in 15 days ateer receipt of a frnal 

notice of proposed civil penalty ... 

~ ~ 13.208(a). 11' Eric It'. 1/ereth. FAA Order No. 9-1-7. at3--l n.9 (Mar. 10. 1994): Emns Air Corporation. FDMS No. FAA200 1-9000. Order of Chie f Administrative Law Judge. at -1 (Aug. 28. 200 I). 

" l'ill(:ent .1. Medel. FAA Order o. 93-1 3. at 8-9 (Mar. 25. 1993) (dismissal oflate-liled complaint affirmed 

when request for hearing was mistakenly liled 1\'ith the hearing docket clerk. who fOI'\Iarded it to complainant" s 

counsel three months later): Francis Taylor. FDM o. FAA-199-1-18227. Order of Admin istrative Law Judge. at 

3-4 (Aug. 15. 199-1) (complaint fi led 57 da) s after complainant" s counsel received the request for hearing dismissed 

with prej udice when complainant" s counsel's on ly excuse 11as fai lure to notice that respondent had checked boxes to 

request both an informal conference and a formal hearing). oppect! dismissed. FAA Order o. 9-1--1~ (Dec . 16. 

1994). 

IX Tony Ri::utu. F AI\ Docket No. CP98WP005 7. Order of Acting Chief Administrative La\\' Judge. I 999 FAA 

I.E X IS I 036. at *4-5 (Oct. 29. 1999) (motion to dismiss request tor hearing den ied as untimely. even though the 

request for hearing was " not timely or carefully articul ated"). 1

'

1 £\"£117.1'. supra note 16. at 5. 

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the complaint:20 or ,,·hen a request for hearing ··was not phrased \•;ith precision:.:!! 

This case re flects a substantial lack of communication by both sides: 

.l an.26. 20 12 

o/a Apr. 23. 20 12 

April 26. 2012 

April 27. :2012 

.June 5. 20 12 

.July 25. 20 12 

Aug. 17. 2012 

o/a Sept. 17. 20 12 

Sept. 18. 20 12 

NO\ ". 8. 2012 

0\". 9. 20 12 

Complainant issued otice to Respondent22 

Respondent did not reply: Complainant mailed Final Notic ~ 

Respondent emai led Complainant a Reply Form dated .January 3 !. 20 12. 

requesting telephonic informal conference

24 

Complainant withdrcv.: Final tice ~ 

Complainant held informal conference with Respondent26 

Complainant mailed settlement otTer to Respondent27 

Complainant received a second Reply Form from Respondent. dated August 

15. 2012. which requested a hearing. but failed to notice or act on the 

Request for Hearing and placed it in the enforcement ft le

2

s 

Complainant called Respondent about settlement o tTer: Respondent said it 

had requested a hearing: Complainant awaited contirmation of Request for 

Hearing. ··not realizing that Respondent was re fe rring to the second Reply 

Form dated August 15. 20 I 2""29 

Complainant issued Final otice to Respondent

30 

Complainant called Respondent to determine whether it responded to the 

Final Notice: Respondent cmailcd to Complainant ··copy of the second Reply 

Form dated August 15. 20 12:· which is a ··Reply Form ... requesting a 

hearino··JI 

Motio~ served32 

On August 17. 20 12-204 days after issuing the otice. but 32 days before issuing the 

Final otice to Respondent-Complainant receiYed the Request for Hearing. If. under these 

circumstances. the Request for Hearing was untimely. we tind good cause for such un timeliness. 

The law docs not favor defaults. and \-VC understand that 14 C.F .R. ~ 13 .16( d)(2) is intended to 

ensure that a respondent will tile a timely request tor hearing and not as a default trap lor the 

"

11 Rcm!/1 Paul Sheldon. PDMS No. FAA-200 1-900 I. Order of Acting Ch ief Administrati ve Law Judge. at 2 

( Mav 9. 200 I). 1 Ri::uro. supra note 18. at-+ (good cause found to permit fil ing of complaint). 

""See supra note 3. 

~-' See supra note .f. 

~I /d. 

~' I d. 

~"See supra note 5. 

"- /d. 

~s See supra note 6. 

"') !d. 

'

0 See supra note 7. 

'I f£1. 

·'~ See supm note I and accompanying, text. 

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unwary.

33 This appears to be another instance in which a prose respondent has been confused by 

the technica l requirements of these proceedings.3-l 

Having received the Request for Hearing. Complainant filed neither a complaint nor a 

motion to dismiss until 84 days later. November 9. 2012. Respondent's request for hearing in 

response to the Notice of Proposed Civil Penalty required Complainant"s compliance with 

~§ 13.208(a) and 13.218(J)(2)(i). 35 Hence. Complainant's motion to dismiss Respondent's 

Request for Hearing is untimely and is denied:'() 

Absent good cause. failure to tile a complaint or motion within 20 days after receiving a 

request for hearing leads to dismissa1. 37 However. Respondent has not claimed prejudice and 

should not.3x since Respondent did not timely respond to the Notice. did not directly respond to 

Complainant's settlement o!Ter. and did not ackno-v.·ledge the Final Notice of Proposed Civil 

Penalty. Complainant gave Respondent an additional opportunity to respond to the Notice. 

withdrew the Final Notice, and held an informal conference with Respondent: tiled away the 

Request for Hearing to await a response to the settlement offer: and called Respondent to 

ascc11ain \vhether it had responded to the Final Notice. While we arc reluctant to accept 

J' .'iee. e.g .. LanJ"s F~1·ing, Se1'1'ice. Inc.. FAA Order No. 98-4. at 7 (Mar. 12. 1998) (citing Suji:ty Equipme/11 

und Sign Co .. Ltd .. FAA Order No. 92-76. at 5 (Dec. 21. 1992)): Dm·id Lloyd Cormm/1. FAA Order No. 92-4 7. at 7 

(J uly 22. 1992). See also Swpleton fmemationu/.4irporl. FAA Docket No. CP94CNM0258. Order of 

Administrative Law Judge. at 3 (Jan. 25 . 1995) (the history of the rul es· initial adoption "emphasized that they ·were 

dralied so that individuals who represent themse lves are not misled by overly-technical procedural requirements ... ) 

(quoting Rules of Practice for FAA Civil Penally Actions. 53 Fed. Reg. 34.646. 3-1.649 (Sept. 7. 1988) (to be 

codified at 14 C.F.R. pt. 13)). 

'J 5iee. e. g .. Roher/ /-farris. FDMS No. F AA-2002-14236. Order of Ch ief Admin istrative Law Judge. at 5-6 . ~ 

(Aug. 27. 2003) ("Respondent was confused about the technical requirements relating to these proceedings and 

about his right to have the claim against him adjudicated by a neutral and independent administrative law judge.") 

(citing Ri:.:.uto. supra note 18: Stapleton/11/ernationa/ Airporl. supra note 33: Lany R. Huhher/. FDMS No. FAA1994-1 8235. Order of Admin istrative Law Judge (Feb. I. 1994 )). 

-'

5 Cf Ri::::ulo. supra note 18, at 7 ("Defective requests tor hearings do not absolve FA/\ counsel from irs 

requirements under~~ 13 .208(a) and 13.218 (t)(2)(i)."). 

,(,See id. at 4 (motion den ied as untimely when tiled a lmost six months after request for hearing). 

,- !d. , at 4 & n.l I (citing USAir. Inc .. FAA Docket No. CP95EAO I 00. Order of Administrative Law Judge (Oct. 

19. 1995). appeal dismissed. FA A Order No. 96-10 (Mar. II. 1996)). 

~ See Emns. supra note 16. at 7 ("Complainant has not and should not claim prejudice when its own complaint 

was deficient and late ... ). 

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Compla inant" s mistakes as good cause for late filings. Complainant" s failure to appreciate the 

import or the Request for Hearing and to timel y tile a complaint or motion appears to have 

resulted li·om confusion rather than neglect.39 Accordingly. we tind good cause to accept a latefiled complaint. and IT IS ORDERED TIIJ\ T-

(I) The Motion is denied: 

(2) Complainant shall tile a complaint not later than 10 days after service of this order: ..to 

and 

(3) Respondent ··shall file a written ansv,·cr to the complaint. or may fil e a written motion 

pursuant to ~ 13.208( d) or § 13.218(1)( 1-4) not later than 30 days after service of the 

complaint. ··..t 1 

SO ORDERED. 

Attachment - Sen·icc List 

R nnie A. Yoder ,L 

Chic!" Administrative Law (a~ 

''>See id. (late-tiled complaint and late-tiled answer accepted under similar circumstances). 0 * I J.2 18(f)(2)(i). 11 * I J.209(a). 

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Federal Aviation Administration 

800 Independence /\venue. S.W. 

Washington. DC 2059 1 

SERVICE LIST 

ORIGINAL & ONE COPY 

Attention: llearing Docket Clerk. /\GC-430 

Wilbur Wright Building - Suite 2W I 000-12 

ONE COPY 

Jelhey S. Ruth. Re.\ptmdem ·s Represenwlin! 

Aero-Weld. Inc .. Respondent 

43 3 Breesport 

San Antonio. TX 78216 

TEL: 2 1 0-590-7888 

FAX: 2 10-366-26 18 

Yo landa Aya la Berna!. Complainant ·s ( 'ounse/ 

O rticc or the Regional Counse l 

Southwest Region 

Federa l A, ·iation Administration 

260 I Meacham Blvd .. Room 663 

Fort Worth. TX 76 193-0007 

TEL: 8 17-222-5070 

F 1\X: 8 17-222-5945/5092 

FDMS o . F /\/\-20 12-0909 

(Civil Penalty Action) 

The Honorable Ronnie A. Yoder. ( 'hiefAdministmtil·e Lml' Judy,e 

U .. Department ofTransportati on 

Office or Hearin gs. M-20 

1200 Nev> .lcrsey Avenue. S.E. (E 11-3 1 0) 

Washington. DC 20590 

T EL: 202-366-2 142 

FAX: 202-366-7536 

I! Serv ice was by U.S. Mail. For service in person or by ex ped ited courier. use the fo liO\\ ing address: Federal 

Aviation Administration. 600 Independence Avenue. . W .. Wilbur Wright Building - Su ite 2W I 000. Washington . 

DC 2059 1. Attention: Hearing Docket Clerk. AGC-430. 

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