05/30/2012 09:05 FAX 2024935142 FAA -. OMS 

UNITED STATES DEPARTMENT o•· TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: LISA GAMACHE-WORTMAN 

FAA Order No. 2012-4 

Docket No. CPIOAL0005 

FDMS No. FAA-2010-1081 1 

Served: May 22, 2012 

ORDF:R REVERSING THE ORin:R GRANTING 

COMPLAINANT'S SECOND MOTION FOR JnX~ISION 

AND REMANDING TO THE 

ADMINTSTRATIVJi~ LAW JUDGE2 

I. Introduction 

( 

-·' 

Respondent Lil>a Garnachc-Wortman ("Gamache-Wortrnan") failed to respond to 

the discovery request served by Complainant FAA ("Complainant") and to the "Order 

Requiring Respondent to Answer Discovery Request or Risk Sanctions" issued by 

Administrative Law Judge ("ALJ") Richard C. Goodwin. On July 8, 2011, the ALJ 

incongruously both dismissed Gamache-Wortn1an' s request for hearing and granted 

Complainant's second motion for decision.J The ALJ entered a judgment against 

-- -~--------

1 Materials filed in the FAA Hearing Docket (except for mat.~.:rials tiled in security cases) 

are also available tor viewing at the following lntemct address: www.regulariom;.goy_. 

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: 

wwwjaa.gov/abouf.loJJice_orp,!headquarters_office.flagc/pol_adjudicationJA(JC400/ 

Civil Penalr:y. In addition, Thomson Reutersi\Vest Publishing publishes Fe~eral Aviation 

Qecisions. Finally, the decisions are available through LEXJS (TRANS library) and Wci:ilLaw 

(FTRAN-FAA d~:~tahasc). For additional information, see the Web site. 

:l A rc4uc:;;t tor hearing is a prerequisite for a complaint (see 14 C . .F.R.. § 13.208(a)), 

which, is a prerequisite for a decisitm on the merits. Thus, if a request for hearing is dismissed, 

the ALJ should nor l'each a decision on the merits,ofthe allegations in the complaint. 

141001/009 
05/30/2012 09:05 FAX 2024935142 FAA + OMS 

G~unachc-Wortman in the amount of$2,500.1 Gamache-Wortman appealed. 

The ALJ's order is reversed because, as explained in this decision, ihe ALJ 

exceeded his authority under 14 C.P.R.§ 13.220(n) by dismissing the request for hearing 

due to Gamache-Wortman's failure to comply with a discovery request and order. Also, 

Complainant failed to prove that genuine issues of material fact no lottger existed, 

making the ALJ's granting of Complainant's second motion for decision improper under 

14 C.F.R. § 13.218(e)(5). 5 

11. History of the Case 

Garnache~ Wortman requested a hearing by letter postmarked on November 4, 

2010. Subsequently, on November 23,2010, Complainant tlled its Complait"lt, alleging 

thal Gamache-Wort\11an knowingly offered a shipment containing undeclared ha.:t:ardous · 

materials-- two aerial flares and five 20-gaugc shotgun shells·- to Alaska Airlines for air 

transportation from Ancl1orage, Alaska, to Seattle, Washington: Complainant alleged 

that Gamache-Wortman violated multiple sections of the Hazardous Materials 

RegulaLions (HMRt and sought a $2,500 civil penalty_ 

Under Section 13.209(a) ofthe Rules ofPracticc in Civil Penalty Proceedings, 

14 C.F .R. § 13.209, a respondem must file a written answer to the complaint, or may file 

a written motion no later than 30 days afler service of the complaint. Also, tUldcr the 

<'mailing rule," a party has an additional 5 days in which to respond to a document served 

4 The Order Granting Complainant's Second Motion for Decision is attached. 

5 Sec pages 6-7 infra for the full text of Sections 13.218(e)(5) and 13.220(n). 

u Specifically, Complainant alleged that Gamache-Wortman violated 14 C.F.R. 

§§ 171.2(e), I72.200(a), 172.20l(d), 172.202(a)(l), 172.202(a)(2), 172.202(<i)(3), 172.204(a) or 

(c)(l ), 172.204(c)(2), 172.204(c)(3), 172.300, J 72.JOl(a), 172.400(a), and 172.600(c)(l) and 

(c)(2). 

2 

Ia! 002/009 
05/30/2012 09:05 FAX 2024935142 FAA "' OMS 

by mail. 14 C.P.R.§ 13.211(eV Hence, Gamache-Wortn1an was required to file her 

answer or an appropriate motion no later than December 28, 2010 (35 days after service 

of the complaint on November 23, 2010.) 

On December 30, 2010, Complainant filed a motion for decision, or, in the 

alternative, a motion for summary judgment limiting the hearing to the issue of sanction. 

Complainant alleged in its motion 1l1at: 

• it had sent the complaint to Gamache-Wortman by certified mall, that a notice 

pertaining to tllis certified letter was left at her address 011 Novembt:r 24, 

2010, and that she had not claimed the letter a~ ofDecetnber 29, 2010; 

• it had sent a copy ofthe complaint to Gamache-Wortman by regular mail and 

that this copy had not been returned; and 

• Gamache-Wortman had failed to file an answer and to communicate good 

cause Jor that failure. 

On February 9, 20 II, the ALJ issued an Order to Show Cause, directing 

Gamache-Wortman to explain ,why the relief requested in Complainant's motion should 

not be granted, a11d to file an answer to the complaint on or before February 25,201 L 

On March 7. 2011, Complainant filed a document entitled "Renewed Motion for 

Decision" because Gamache-Wmtman had not yet filed an answer to the complaint and 

because, according to Complajnant, no genuine issues of fact existed. 

On March 21, 20 II, the 1 Iearing Docket received an 8-page, handwritten letter 

@ 003/009 

entitled '"Answer" from Gamache-Wortman. The attachments to her answer included two 

Alaska Air Cargo air waybills, dated May 14,2009, at 18:51, for shipment 027-

71326603. However, one of these air waybills indicated that the shipment C()nsistcd of 

7 Complainant summarized the requirement to file an answer within 30 days at the end of 

the complaint. The ALJ in tht: procedural Ol'der, dated December 13, 2010, also summarized the 

requirement to file an answer. 

3 
05/30/2012 08:05 FAX 2024835142 FAA ~ OMS 

14 pieces, and the other indicated that there had been 16 pieces. Another attachment 

indicated that Lisa M. Gamache received the 16-piecc shipment on May 19, 2009. In her 

answer, Gamache-Wortman wrote that she did not knowingly ship any dangerous goods, 

and that the Alaska Airlines representative helped her stack thtl bo.xcs on the pallet and 

told her that the pallet would be okay to ship. She wrote that to her knowledge, the 14-

piece shipment that she offered did not include any amn.mnition. She explained further 

that she had not riled her answer on time because she is husy caring for her tbrec sons and 

her disabled husband and that she has had difficulty understanding the documents sent to 

her. She noted further that her husband and she are unemployed and rely upon disability 

payments and food stamps. 

On March 23, 2011, the ALJ issued an order 1inding that Gamache-Wortman's 

submission constituted an answer, ami that she had demonstrated good cause.Jor her 

failure to file it in a timely fashion. TheAL.T denied Complainant's motions for decision. 

On March 30. 2011, Complainant sent Gamache-Wortman a discovery request, 

including 16 intenogatorics, and five related requests for production, as well as two 

requests for admission pertaining to other naJ11CS that Gamache-Wortman may have 

uscd.g After not receiving a response from her, the agency attorney sent her a letter 

explaining that he had extended her deadline to comply with the discovery requests until 

May 12, 2011, but ifhe did nol receive her response by then, he wouldfile a motion to 

compel and request that the AU preclude her from introducing evidence at the hearing. 

Gamache-Wortman did not respond to Complainant's discovery requests. 

K The ncxl day, the ALJ issued an amended procedural order, to the etJect that discovery 

shall be concluded on or before August 1, 2011, and setting the hearing date for August 15-17, 

2011. 

4 

141004/008 
05/30/2012 08:05 FAX 2024835142 FAA + OMS 

On May 13,2011, Complainant filed its "'Motion to Deem Admitted 

Complainant's Requests for Admissions and Motion to Con1pel Discovery." 

Complainant requested that the ALJ deem the requests for admissi011s as admitted unless 

the ALJ found that <Jarnache-Wortman's failure to respond was due to circumstances 

beyond her control. Further, Complainant requested that the ALJ issue an order 

compelling Gamache~ Wortman to comply with her discovery obligation or face 

sanctions. Gamache-Wortman did not respond to this motion. 

On June 8, 2011, the ALJ ordered that Gamache· Wortman respond to the 

discovery requests and warned about the potential consequences of failure to comply with 

this order, as follows: 

Ms. Gamache-Wortman, t11e Respondent, ... is hereby required to 

completely and separately answer truthfully each and every request contained in 

Complainant's Initial Discovery Request by June 20, 2011 (mailing date). Should 

Respondent fail to respond fully by that date, I will entertain a request by 

Complainant for sanctions against Resp(mdent. Such sanctions may include, but 

not be limited to: 1) all matters unanswered or incompletely answered may be 

deemed admitted; 2) Respondent may be precluded from introducing any 

evidence at the hearing uthcr than its own testimony; andJor 3) a Default 

Judgment may be entered against Respondent in the amount of the fine requested 

by the Complainant in its Complaint. 

(Order Requiring Respondent to Answer Discovery Request or Risk Sanctions, dated 

June 8, 2011, at 2.) Gamache-Wortman did not respond to this order. 

Complai11ant filed a ''renewed" motion for decision on June 24, 2011~ arguing that 

Gmnache-Wortman "should be precluded from presenting evidence, her pleadings should 

be stricken, and Complainant's Motion for Decision should be granted." Gamache· 

Wortman did not respond to the motion. On July 8, 2011, the ALJ granted the motion, 

1inding that G·amache~ Wortman had "repeatedly failed in her pretrial responsibilities to 

5 

141005/008 
05/30/2012 09:05 FAX 2024935142 FAA + OMS 

Complainant and to this Court." Accordingly, Lhe ALJ dismissed Gamache-Wortman's 

request for hearing with prejudice and entered a judgment for $2,500. 

Gamache· Wortman appealed from the ALJ's order, arguing that: 

• she was not responsible for the shipment bt:(;ausc Alaska Airlines Cargo had 

told her that the shipment was okay; 

• she had told the agency attorney that she had mental health issues, was 

unemployable, and could not afford any civil penalty; and 

• she had no additional documents to send to the agency attorney_ 

In its reply brie1~ Complainant argued that Gamache-Wortman had had her chance to 

argue about the merits and to prove financial hardship, but had failed to do so. 

III. Discussion 

The Rules of PractiCe in Civil Penalty Proceedings do not speci(y that an ALJ 

may dismiss a respondent's request for hearing as a sanction l()r a respondent's failure tb 

respond to a discovery order or order to compel. Section 13 .220(n) ofthe Rules of 

Practice in Civil Penalty Proceedings, 14 C.F.R. § 13.220(n), provides as follows: 

.F'aiiure to comply with a discovery order or order to compel. If a party fail!> to 

comply with a discovery order or an order to compel, the administrative law 

judge, limited to extent of the party's failure to comply with a discovery order or 

motion to compel, may: 

(1) Strike that portion of a party's pleadings; 

(2) .Preclude prehearing or djscovery motions by that party; 

(3) Preclude admission of that portion of a party's evidence at the hearing; or 

(4) Preclude that portion of the testimony of that party's witnesses at the hearing. 

In cases in which a party fails to respond to a request ibr admissions, the ALJ may deem 

that failure as an admission ofthe truth of the statement contained in each requt:Jst under 

6 

141008/009 
05/30/2012 08:06 FAX 2024835142 FAA -. OMS 

certain circumstances9 14 C.F.R. § 13.220(1)(1) but is 11ot authorized to dismiss the 

request for hearing. 

If the respondent admits sufficient facts such that no genuine issue of fact 

remains, theu under 14 C.F.R. § 13.218(e)(5), thcALJ may grant a motion for decision. 

Specifically, Section 13.218(e)(5) provides: 

Motion for decision. A party may make a rnotion for decision, regarding aU or 

any part ofthe proceedings, at any time before the administrative law judge has 

issued an initial decision in the proceedings. The administrative law judge shall 

grant a party's motion for dt:cision if the pleadings, depositions, answers to 

int~rrogatorles, admi~sions, matters that Lhe adminlstrative law judge has 

officially noticed, or evidence introduced during the hearing show that there is no 

genuine jssue of material fact and that the party making the motion is entitled'to a 

decision as a matter of law. The party making the motion for deci~ion has the 

burden of showing that there is no genuine issue of material fact disputed by the 

parties. 

In this case, there were only two requests lor admission (to which Gamache-Wortman 

failed to respond.) Complainant requested that Gamache-Wartman admit that she had 

also gone by the names Lisa Stedman and Lisa Rantala. TI1e ALJ could have deemed 

these statements as admitted under Section 13.220 due to Gamache-Wortman's failure to 

respond to the requests for admissions. However, these were not facts n1entioned in the 

complaint, and therefore, these admissions did not prove any material facts necessary to 

prove that Gamache.;. W<mman had violated the HMR, as alleged. 

Further, in her answer, 10 Gamache-WoJiman denied knowingly offering 

hazardous materials to Alaska Airlines in her shipment of"household goods," (Answer,~ 

9

Sec1 ion 13 .:220(1)(1) provides: 

Time. A party's failure to respond to a request for admission ... not later than 30 day~ 

after service oftherequesl, is deemed an admission ofthe truth of the statement or 

slatcmcnt.s contained in the request for admission, The administrative law judge may 

detennine that a failure to retipond to a request tor admission is not deemed an admission 

of the truth if a pa1ty shows that the failure was due 10 circumstances beyond the control 

of the party or the party's attorney. 

7 

141007/008 
05/30/2012 08:06 FAX 2024835142 FAA + OMS 

l) and specifically stated that to her knowledge tl1ere was no aiillnunition in any of the 14 

pieces that she offered to Alaska Airlines (Answer,~ 5). She did not admit the critical 

allegation in the complaint that the ~hipmcnt included aerial flares and a box containing 

five 20wgauge shotgun shells. ln Section IT, paragraph 3 orthc Complaint, the 

Complainant alleged: "This shipment consisted, in part, oftwo Orion Skyblazer Red 

Aerial Flares and a box containing five 20-gauge shotgun shells." Gamache-Wortman 

wrote in her Answer that she was "without sufficient knowledge" to admit or deny that 

allegation, and explained as follows: 

I singed (sic) for 14 peices (sic) of cargo and went thru (sic) the shipment 

extensively. Beleiving (sic) that there was No Dangerous Cargo in my 14 peices. 

Then there was 16 pieces (sic) in Seatle (sic), how or who's (sic) other 2 peices 

(sic) of cargo may there have been and did it contain the s1wtgun shells and airel 

(sic) flares? 

(Answer,~ 3.) 

Complainant had the burden of proving that there was no genuine issue of 

material fact under 14 C .. F.R. ~ 13.218(c)(5). Tnthe absence of an admission by 

Gamache-Wortman that she had offered boxes containing the alleged hazardous materials 

for shipment or a discovery sanction deeming such facts admitted, Complainant failed to 

prove that a genuine i:Ssue of material fact did not exist. Consequently, the ALJ should 

not have granted Complainant's second moti(m tor decision. 11 

10 The ALJ did not. strike the answer when he dismissed the request for hearing under 

14 C.F.R. § 13.220(n). Hence, the answer w~s still valid. There would have be~n no reason to 

strike 1hc answer because Gamache-Wortman attached documents regarding the confusion over 

how many boxes she offered for shipment. 

11 Also Section 13 .224(b) provides that "Except. a.s othe1wise provided by stahtte or rule, 

the proponent of a motion, request, or l)rdcr has the burden of proof." 14 C.F.R. § 13.224(b). 

8 

141008/008 
05/30/2012 09:06 FAX 2024935142 FAA -. OMS 

Conclusion 

Accordingly, the ALJ's Order granting complainant's Second Motion for 

Decision is reversed. This matter is remanded to the ALJ for fw1her proceedings, as 

appropriate. 

Federal Aviation Administration 

9 

141009/009