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## SERVED: APRIL 10, 2015 U.S. DEPARTMENT OF TRANSPORTATION!;\.iENT 

## OF OFFICE OF HEARINGS

# _;"C<Js~;P~1.~~~~-9~~~~f\ WASHINGTON, DC ·_:...,.\.:
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In The Matter Of: Docket No. FAA-2013-0291 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES ) ) ) ) ) ) Case No. 2011S0290032 Respondent



### ORDERACCEPTING RESPONDENT'S PROFERRED STIPULATION, CANCELLING THE HEARING, DENYING ANY INFERRED REQUEST FOR INTERLOCUTORY APPEAL, AND GRANTING OTHER RELiEF

On March 30, 2015, an OrderDenying Respondent's Cross-Motion for Summary Judgment was filed ("March 30, 2015 Order"). On April 1, 2015, an OrderGranting In Part and Denying In Part the FAA's Motion for Summary Judgment was filed ("April 1, 2015 Order"). Amongother things, this April I, 2015 Order denied the FAA' Motion for SummaryJudgment onthe proposed civil penalty. This April 1, 2015 Order also notified the FAA and the Respondent that they would be "informally contacted by the Office ofHearings" to determine the amount oftime still needed for Hearing 

### qn the remaining issue in dispute, and whether the venue ofthe Hearing still needed to be Orlando, Florida. (4/1/5 Order, 31.) On Friday, April 3, 2015 the Office ofHearings ("OH") attorney staffinformally contacted both the FAA and the Respondent by email, asking for information on how the parties wished to proceed onthe remaining issue ofthe proposed civil penalty. On both Friday-, April 3, 2015, and Monday, April6, 2015, the parties communicated by e-mail with the OH attorney staff about setting a Hearing to address the remaining issue ofthe proposed civil penalty. 

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On Wednesday, April 8, 2015, the Respondent filed Respondent's Stipulation Regarding the Amount ofthe FAA's Proposed Civil Penalty or, In Lieu Thereof, Partial Withdrawal of Request for a Hearing on the Amount ofthe Proposed Civil Penalty was filed ("April 8, 2015 Stipulation").

That same day, on April 8, 2015, the Respondent also filed two Notices ofAppeal in this case, in whichthe Respondent requested appellate review by the FAA Administrator ofboth the March 30, 2015 Order and the April 1, 

### 2015 Order. The Respondent also requested "consolidation"ofits two appeal notices. (4/8/15 Notices ofAppeal, 1.) BriefDiscussion 

### The March 30,2015 Orderdenied the Respondent's Cross-Motion for Summary Judgment. In addition, the April 1, 2015 Order only granted part ofthe FAA's Motion for Summary Judgment. Among other things, the April I, 2015 Order found that there was a genuine dispute as to material facts regarding the appropriate civil penalty for the violations. As a result, this case was not fully resolved, and the case was not ripe for the**issu~nce** 

### ofan Initial Decision. This briefdiscussion will address the Respondent's proffered Stipulation, and what appears to be premature Notices ofAppeal. I) Proffered Stipulation A party may waive a rightprovidedby statute or regulation. 14 C.F.R. 

### § 13.216. "Waiver is the intentional relinquishment or abandonment ofa known right." Wood v. 

### Milyard, 132 S. Ct. 1826, I835 (2012) (quoting Kontrick v. Ryan, 540 U.S. 443,458, n. 13 (2004)). "A party may waive any provision, either ofa contract or ofa statute, intended for his benefit."Shutte v. 

### Thompson, 82 U.S. 151 (1872); 28 Am. Jur. 2nd Estoppel & 

### Waiver,§ 200 (2012); 57 A.L.R. 2d 302 (2012) (A "statutory provision" is a right orprivilege which "maybe waived" by the beneficiary ofsuch right). In the case herein, the Respondent has proffered a stipulation waiving its right to submit evidence and argument onthe FAA'sproposed civil penalty. The Respondent also has proffered a stipulation acceptingthe FAA'sproposed total amount of$6I,875 (i.e., $20,625 per aircraft) as appropriate. The Respondent's proffered stipulation appears knowing and voluntary and may be Page 2of5**~-**

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accepted. As a result, the Hearing set in Orlando, Florida for four (4) days, from May 5, 2015 through May 8, 2015 may be cancelled. 2) Two Methods ofAppeal: The Federal Aviation Rules ofPractice provide for two methods ofappeal: interlocutory appeal while case litigation is pending, 14 C.F.R. 

### § 13.219, and appeal from an Initial Decision, which is issued atthe conclusion ofcase litigation, 14 C.F.R. 

### § 13.233. 

### a) fnlerlocutoryAppeal As a general rule, a party "may not" appeal fromjudicial rulings made while the case is being litigated by the parties. 14 C.F.R. 

### § 13.219. However, the Federal Aviation Rules of Practice do provide for limited interlocutory appeal during a pendingcase, ifthe party can assert cause, 14 C.F.R. 

### § 13.232(a), or legal right 14 C.F.R. 

### § 13.219(c). A party asserting cause must submit a request for interlocutory appeal to the Judge for review and decision. Ifthe Judge denies the request for interlocutory appeal, the.party mustproceed with the case litigation and
renew its appellate issues after the Judge issues an Initial Decision. 14 C.F.R. 

### §§ 13.21913.233(a). When seeking interlocutory review by legal right, a party may file directly with the FAA Administrator, but this direct "legal right" appeal request must involve one ofthese three allegations: 1) an orderbarring a person from the pendingproceeding; 2) a failure ofthe Judge to dismiss the proceeding in accordance with 14 C.F.R. 

### § 1-3.215; or 3) ajudicial ruling in violation of 14 C.F.R. 

### § 13.205(b) (i.e., findings ofcontempt, unauthorized sanction, oraward of fees). 

### b) AppealfromInitial Decision Pursuant to 14 C.F.R. 

### § 13.232, a Judge issues an Initial Decision after all disputed matters in the proceeding have been addressed or after the conclusion ofa Hearing and the closure ofthe evidentiary record. The Initial Decision provides the Judge's decision on all issues. It also includes all necessary discussion on matters that supportthe Judge's decision, as well as "the amount ofany civil penalty" the Judge found to be "appropriate." 14 C.F.R. 

### § 13.232(a). Alternatively, in lieu ofa written Initial Decision, the Judge may issue an on-the-record**or~l** Initial Decision. 14 C.F.R. § 13.232(b).

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Once an Initial Decision is issued, any party may appeal from it, pursuant to 14 C.F.R. 

### § 13.233. The appeal must be filed within ten (10) days after "service ofthe written initial decision" or after "entry ofthe oral initial decision." 14 C.F.R. 

### § 13.233(a). 3) The Respondent's4/8/15 Notices ofAppeal: As noted above, the Respondent has filed two Notices ofAppeal in.this case, in which the Respondent has requested appellate reviewby the FAA Administrator ofthe March 30, 2015 and April 10,2015 Orders. Both ofthe Respondent's 4/8115 Notices ofAppeal were.filed prior to these proceedings being finalized with the issuance ofan Initial Decision. Based on the time offiling (i.e., while the case is still being litigated) the'Notices ofAppeal could be construed as requests for interlocutory appeals. However, neitherofthe Notices ofAppeal asserted interlocutory review
was needed on a causal basis, 14 C.F.R. § 13.219(b), or as amatterofright, 14 C.F.R. 

### § 13.219(c). As a result, insofar as the Notices ofAppeal are intended to request from this Court interlocutory appeal, there are no groundsto grant the appeal requests while the proceeding is still pendingbefore this Court. Insofar as the Notices ofAppeal are intended for the FAA Administrator, they are not before this Court. However, it should be noted that pursuantto 14 C.F.R. 

### § 13.233, the Notices ofAppeal appearpremature. Once an Initial Decision_is filed, the Respondent has the right to file
a Notice ofAppeal with the FAA Administrator (14 C.F.R. 

### § 13.233(a) and (c)), and then discuss any and all "specific objections to the initial decision orrulings." 14 C.F.R. 

### § 13.233(d). Pursuantto 14 C.F.R. 

### § 13.205, and afterreviewing all relevantcaselaw, regulations, statutory authority, and being fully advised;



### IT IS HEREBY ORDERED: 1. The Respondent's 4/8115 Proffered Stipulation in which it waives its rights to submit evidence and argument on the FAA'sproposed civil penalty appears knowing and voluntary and is accepted.

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2. The Respondent's 4/8/15 Proffered Stipulation in which it accepts as appropriate the FAA's proposed total amount of$61,875 (i.e., $20,625 per aircraft) appears knowing and voluntary and is accepted. 3. The Hearing set in.Orlando, Florida for four (4) days, from May 5, 2015 through May 8, 2015 is cancelled. 4. To the extent that the Respondent's 4/8115 Notices ofAppeal might be perceived as inferred requests for interlocutory appeal on the basis ofcause pursuant to 14 C.F.R. 

### § 13.219(b), suchNotices ofAppeal are denied onthe grounds that no cause has been shown that support**int~rlocutory** appeal while the case is pending. 5. This proceeding is now·ready for the issuance ofan Initial Decision, which will be issued shortly by separate filing. Once an Initial Decision is issued, either party may file a Notice of**Appe~l,** pursuantto 14 C.F.R. § 13.233. in;::·:; 6. Forclarifications ofthis orderorquestions with regard to the procedures to be followed in this case, please contact Mr. Cody 

### L. Smith, Attorney-Advisor, at the Office ofHearings (202-366-6941).

Attachment: Service List

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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~30** Wilbur Wright Building-Suite2W1000 1

Mr. Christopher R. Stevenson · 

### Complainant's Counsel Federal Aviation Administration· ; : ONE COPY

Office ofthe Regional Counsel, Southern Region P. 

### 0. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Robert P. Silverberg 

### Respondent's Counsel Silverberg, Goldman & Bikoff, LLP Georgetown Place, Suite 120 · 1101 301h St., N.W. Washington, DC 20007 TEL: 202-944-3300 FAX: 202-944-3306 .JudgeJ.E. Sullivan

U.S. 

### Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 FDMS No. FAA-2013-0291 (Civil Penalty Action)

1 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-Suite2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.