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UNITED STATES DEPARTMENT

# o•· TRANSPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, DC In the Matter of: LISA GAMACHE-WORTMAN FAA OrderNo. 2012-4 

### DocketNo. 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~** LAWJUDGE2 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 ajudgment against



## --**-~--------** 1 Materials filed in the FAA Hearing Docket (except for**mat.~.:rials** tiled in security cases) are also available

### tor viewing atthe following lntemct address: www.regulariom;.goy_. 2 The Administrator's civil penalty decisions, along with indexes ofthe decisions, the rules ofpractice, 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, ifa request for hearing is dismissed, the ALJ should nor l'each a decision on the merits,ofthe allegations in the complaint. 141001/00905/30/2012 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, Complainantfailed to prove that genuine issues ofmaterial fact no lottger existed, making the ALJ's granting ofComplainant's second motion for decision improper under 14 C.F.R. § 13.218(e)(5). 5 

### 11. History ofthe Case**Garnache~**Wortman requested ahearing 

### by letter postmarked onNovember4, 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 violatedmultiple sections ofthe Hazardous Materials RegulaLions (HMRt and sought a $2,500 civil penalty_ Under Section 13.209(a) oftheRules ofPracticc in Civil PenaltyProceedings, 14 C.F.R. § 13.209, a respondem must file 

## awritten answer to the complaint, ormay file
a written motion no laterthan 30 days afler service ofthe complaint. Also, tUldcr the <'mailing rule," aparty has anadditional 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 ofSections 13.218(e)(5) and 13.220(n).

u Specifically, Complainant allegedthat 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, J72.JOl(a), 172.400(a), and 172.600(c)(l) and (c)(2).

2 

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### bymail. 

### 14 C.P.R.§ 13.211(eV Hence, Gamache-Wortn1an was required to file her
answer or an appropriate motion no later than December28, 2010 (35 days after service ofthe complaint on November 23, 2010.) 

### On December 30, 2010, Complainant 

### filed amotion for 

### decision, or, in the alternative, a motion for summaryjudgment limiting the hearing to the issue ofsanction. Complainant alleged in itsmotion 1l1at:
• it had sentthe 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 complaintto 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 reliefrequested in Complainant's motion should not be granted, a11d to file an answer to the complaint on or before February 25,201L 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 offact existed. On March 21, 20II, the 1 Iearing Docketreceived an 8-page, handwritten letter @003/009

entitled '"Answer" from Gamache-Wortman. The attachments to her answer included two AlaskaAir Cargo air waybills, dated May 14,2009, at 

### 18:51, for shipment 027- 71326603. However, one ofthese air waybills indicated that the shipment C()nsistcd of

7 Complainant summarized the requirementto file an answer within 30 days atthe end of the complaint. The ALJ intht: procedural Ol'der, dated December 13, 2010, also summarized the requirement to file an answer.


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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, andthat the Alaska Airlines representative helped her stack thtl bo.xcs on the pallet and toldher that the pallet would be okayto ship. She wrote thatto herknowledge, the 14- piece shipment that she offered did notinclude any amn.mnition. She explained further that she had not riledher 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 relyupon disability payments and food stamps. On March 23, 2011, the ALJ issued an order 1inding thatGamache-Wortman's submission constituted an answer, ami that she had demonstrated good cause.Jorher failure to file 

### itin atimely 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 aletter explainingthat he had extended her deadline to comply with the discovery requests until May 12, 2011, but ifhe did nol receive herresponse 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.

KThe ncxl day, the ALJ issued an amended procedural order, to the etJectthat discovery shall beconcluded on or before August 1, 2011, and setting the hearing date for August 15-17, 2011. 4 141004/00805/30/2012 08:05 FAX 2024835142 FAA + OMS

On May 13,2011,Complainantfiled its "'Motion to Deem Admitted Complainant's Requests for Admissions and Motion to Con1pel Discovery." Complainantrequested 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 respondtothis motion. On June 8, 2011, the ALJ ordered that Gamache·Wortman respond to the discovery requests and warned about the potential consequences offailure to comply with this order, as follows: Ms. Gamache-Wortman, t11e Respondent,
... is herebyrequired 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, Iwill entertain arequest 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) aDefault Judgment may be entered against Respondent in the amount ofthe fine requested by the Complainant in its Complaint. (Order Requiring Respondent to Answer Discovery Request orRisk Sanctions, dated June 8, 2011, at 2.) Gamache-Wortmandid notrespond to this order. 

### Complai11ant filed a ''renewed" motion 

### for decision on June 24,**2011~** arguing 

### that Gmnache-Wortman "should be precluded from presenting evidence, herpleadings 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~**Wortmanhad "repeatedly failed in herpretrial responsibilities to



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Complainant and to this Court." Accordingly, Lhe ALJ dismissed Gamache-Wortman's request for hearing with prejudice and entered ajudgment 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 toldher that the shipment was okay;
• she had toldthe agency attorney that she had mental health 

### issues, was unemployable, and could not afford any civil penalty; and
• she had no additional documents to sendto 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 ofPractiCe in Civil Penalty Proceedings do not speci(y that anALJ may dismiss 

### arespondent's request for hearing as 

### a sanction l()r arespondent'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 complywith a discovery order or order to compel. Ifa party fail!> to comply with a discovery order or an orderto compel, the administrative law judge, limitedto extent ofthe party's failure to comply with a discovery order or motion to compel, may: (1) Strike that portion ofaparty's pleadings; (2) .Preclude prehearing or djscovery motions 

### by that party; (3) Preclude admission ofthat portion ofaparty's evidence at the hearing; or (4) Preclude thatportion ofthe testimony ofthat party's witnesses atthe 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 ofthe statement contained in each requt:Jst under

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certain circumstances9 14 C.F.R. § 13.220(1)(1) but is 11ot authorizedto dismiss the request for hearing. Ifthe respondent admits sufficient facts such that no genuine issue offact remains, theu under 14 C.F.R. § 13.218(e)(5), thcALJ may grant amotion for decision. Specifically, Section 13.218(e)(5)provides: Motionfor decision. Aparty may make a rnotion for decision, regarding aU or any part oftheproceedings, at any time before the administrative lawjudge has issued an initial decision in the proceedings. The administrative lawjudge 

### shall grant a party's motion for dt:cision 

### ifthe pleadings, depositions, answers to**int~rrogatorles, admi~sions,**  matters that Lhe adminlstrative lawjudgehas officially noticed, orevidence introduced during the hearing show that there is no genuine jssue ofmaterial fact and that the party making the motion is entitled'to a decision as a matter oflaw. The party making the motion for**deci~ion** has the burden ofshowing that there is no genuine issue ofmaterial fact disputed by the 

### parties. In this case, there were onlytwo requests loradmission (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 notprove 

### 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,~**
9Sec1ion 13.:220(1)(1) provides: Time. A party's failure to respondto arequest for admission
... not laterthan 30**day~** after service oftherequesl, is deemed an admission ofthetruth ofthe statementor slatcmcnt.s contained in the request for admission, The administrative lawjudgemay detennine that a failure to retipond to a request 

### tor admission is not deemed an admission ofthe truth ifa pa1ty showsthatthe failure was due 10 circumstances beyond the control ofthe party or the party's attorney. 

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### l) and specifically stated that to herknowledge tl1ere was no aiillnunition in any ofthe 14 pieces that she offered to Alaska Airlines**(Answer,~** 

### 5). She did not admitthe critical allegation in the complaint that the**~hipmcnt** 

### included aerial flares and a box containing five 

### 20wgauge shotgun shells. ln Section IT, 

### paragraph 3 orthcComplaint, the Complainant 

### alleged: "This shipment

### consisted, inpart, 

### oftwo Orion 

### SkyblazerRed 

### Aerial Flares and abox containing five 20-gauge shotgun shells." Gamache-Wortman wrote in her Answerthat she was "without sufficientknowledge" to admit or denythat allegation, and explained as follows: 

### I singed (sic) for 14 peices (sic) ofcargo 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) ofcargo may there 

### have been and did it containthe s1wtgun shells and

### airel (sic) 

### flares?**(Answer,~** 3.) 

### Complainant had the burden ofproving that there was no genuine issue of material fact under 14 C
.. F.R.**~** 

### 13.218(c)(5). Tnthe absence ofan 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 ofmaterial 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 answerbecause 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 orrule, the proponentofa motion, request, orl)rdcr hasthe

### burden ofproof." 

### 14 C.F.R. § 13.224(b).

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### Conclusion Accordingly, the ALJ's 

### Order granting complainant's Second Motion for Decision is reversed. This matter is remandedto the ALJ for fw1her proceedings, as appropriate.



### Federal Aviation Administration

9 141009/009