--. 

.· SERVED: APRIL 10, 2015 

U.S. DEPARTMENT OF TRANSPORTATION!;\.iENT OF 

OFFICE OF HEARINGS _;"C<Js~;P~1.~~~~-9~~~~f\ WASHINGTON, DC ·_:...,.\.: .. ..;, '-·''";'--•\0 

In The Matter Of: 

Docket No. F AA-20 13-0291 

AIRBORNE MAINTENANCE 

AND ENGINEERING SERVICES 

) 

) 

) 

) 

) 

) 

Case No. 2011S0290032 

Respondent 

ORDER ACCEPTING RESPONDENT'S PROFERRED STIPULATION, 

CANCELLING THE HEARING, DENYING ANY INFERRED REQUEST FOR 

INTERLOCUTORY APPEAL, AND GRANTING OTHER RELiEF 

On March 30, 2015, an Order Denying Respondent's Cross-Motion for Summary 

Judgment was filed ("March 30, 2015 Order"). 

On April 1, 2015, an Order Granting In Part and Denying In Part the FAA's Motion for 

Summary Judgment was filed ("April 1, 2015 Order"). Among other things, this April I, 2015 

Order denied the FAA' Motion for Summary Judgment on the proposed civil penalty. This April 

1, 2015 Order also notified the FAA and the Respondent that they would be "informally 

contacted by the Office of Hearings" to determine the amount of time still needed for Hearing qn 

the remaining issue in dispute, and whether the venue of the Hearing still needed to be Orlando, 

Florida. (4/1/5 Order, 31.) 

On Friday, April 3, 2015 the Office of Hearings ("OH") attorney staff informally 

contacted both the FAA and the Respondent by email, asking for information on how the parties 

wished to proceed on the remaining issue of the 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 of the proposed civil penalty. 

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On Wednesday, April 8, 2015, the Respondent filed Respondent's Stipulation Regarding 

the Amount of the FAA's Proposed Civil Penalty or, In Lieu Thereof, Partial Withdrawal of 

Request for a Hearing on the Amount of the Proposed Civil Penalty was filed ("April 8, 2015 

Stipulation"). 

That same day, on April 8, 2015, the Respondent also filed two Notices of Appeal in this 

case, in which the Respondent requested appellate review by the FAA Administrator of both the 

March 30, 2015 Order and the April 1, 2015 Order. The Respondent also requested 

"consolidation" of its two appeal notices. (4/8/15 Notices of Appeal, 1.) 

Brief Discussion 

The March 30,2015 Order denied the Respondent's Cross-Motion for Summary 

Judgment. In addition, the April 1, 2015 Order only granted part of the 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 of an Initial Decision. 

This brief discussion will address the Respondent's proffered Stipulation, and what appears to be 

premature Notices of Appeal. 

I) Proffered Stipulation 

A party may waive a right provided by statute or regulation. 14 C.F.R. § 13.216. "Waiver 

is the intentional relinquishment or abandonment of a 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 of a contract or of a 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 (20 12) (A "statutory provision" is a right or privilege which "may be waived" by the 

beneficiary of such right). 

In the case herein, the Respondent has proffered a stipulation waiving its right to submit 

evidence and argument on the FAA's proposed civil penalty. The Respondent also has proffered 

a stipulation accepting the FAA's proposed 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 2of 5 

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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 of Appeal: 

The Federal Aviation Rules of Practice provide for two methods of appeal: interlocutory 

appeal while case litigation is pending, 14 C.F.R. § 13.219, and appeal from an Initial Decision, 

which is issued at the conclusion of case litigation, 14 C.F.R. § 13.233. 

a) fnlerlocutory Appeal 

As a general rule, a party "may not" appeal from judicial 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 pending case, if the 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. If the Judge 

denies the request for interlocutory appeal, the. party must proceed 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 of these 

three allegations: 1) an order barring a person from the pending proceeding; 2) a failure of the 

Judge to dismiss the proceeding in accordance with 14 C.F.R. § 1-3.215; or 3) a judicial ruling in 

violation of 14 C.F.R. § 13.205(b) (i.e., findings of contempt, unauthorized sanction, or award of 

fees). 

b) Appealfrom Initial 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 of a Hearing and the 

closure of the evidentiary record. The Initial Decision provides the Judge's decision on all issues. 

It also includes all necessary discussion on matters that support the Judge's decision, as well as 

"the amount of any civil penalty" the Judge found to be "appropriate." 14 C.F.R. § 13.232(a). 

Alternatively, in lieu of a written Initial Decision, the Judge may issue an on-the-record or~l 

Initial Decision. 14 C.F.R. § 13.232(b). 

Page 3 of 5 
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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 of the written initial 

decision" or after "entry of the oral initial decision." 14 C.F.R. § 13.233(a). 

3) The Respondent's 4/8/15 Notices of Appeal: 

As noted above, the Respondent has filed two Notices of Appeal in. this case, in which the 

Respondent has requested appellate review by the FAA Administrator of the March 30, 2015 and 

April 10,2015 Orders. 

Both ofthe Respondent's 4/8115 Notices of Appeal were.filed prior to these proceedings 

being finalized with the issuance of an Initial Decision. Based on the time of filing (i.e., while 

the case is still being litigated) the 'Notices of Appeal could be construed as requests for 

interlocutory appeals. However, neither of the Notices of Appeal asserted interlocutory review 

was needed on a causal basis, 14 C.F.R. § 13.219(b), or as a matter of right, 14 C.F.R. § 

13.219(c). As a result, insofar as the Notices of Appeal are intended to request from this Court 

interlocutory appeal, there are no grounds to grant the appeal requests while the proceeding is 

still pending before this Court. 

Insofar as the Notices of Appeal are intended for the FAA Administrator, they are not 

before this Court. However, it should be noted that pursuant to 14 C.F.R. § 13.233, the Notices 

of Appeal appear premature. Once an Initial Decision _is filed, the Respondent has the right to file 

a Notice of Appeal 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 or rulings." 14 C.F.R. § 13.233(d). 

Pursuant to 14 C.F.R. § 13.205, and after reviewing all relevant caselaw, 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's proposed 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 of Appeal might be perceived as 

inferred requests for interlocutory appeal on the basis of cause pursuant to 14 C.F.R. 

§ 13 .219(b ), such Notices of Appeal are denied on the 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 of an 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, pursuant to 14 C.F.R. § 13.233. 

in;::·:; 

6. For clarifications of this order or questions with regard to the procedures to be 

followed in this case, please contact Mr. Cody L. Smith, Attorney-Advisor, at the 

Office of Hearings (202-366-6941 ). 

Attachment: Service List 

Page 5 of 5 
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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-Suite 2W1 0001 

Mr. Christopher R. Stevenson · 

Complainant's Counsel 

Federal Aviation Administration· ; : 

ONE COPY 

Office of the 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 

.Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department ofTransportation 

1200 New Jersey 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-Suite 2WIOOO, Washington, 

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