## SERVED: JULY 16,2013 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC
In The Matter Of: 

### ) ) ) ) 

### ) ) AVIATION ENGINEERING CONSULTANTS, INC. Respondent DocketNo. FAA-2013-0284
Case No. 2012CE440003

ORDERGRANTING THE RESPONDENT'S MOTION FORA MORE DEFINITE STATEMENT IN PART, AND GRANTING/DENYING OTHERRELIEF

OnApril22, 2013, the Respondent, Aviation Engineering Consultants, Inc., ("Respondent") filed a Request for Hearing. On May 7, 2013, the Federal Aviation Administration's Regional Counsel for the Central Region ("FAA") filed its Complaint. On June 3, 2013, the Respondent filed a Motion for More Definite Statement ("Motion") alleging thatthe lack ofinformation inthe Complaint would hinder the_preparation ofan answer and the defense ofits cause. On June 10, 2013, the FAA filed Complainant's Response in Oppositionto Respondent's Motion for More Definite Statement fResponse"). BRIEFDISCUSSION: Section 13.208(c) ofthe Rules ofPractice in FAA civil penalty actions, 14 C.F.R. Part 13, subpart G, provides, "A complaint shall set forth the facts alleged, any regulation allegedly violated by the respondent, and the proposed civil penalty in sufficient detail to provide notice of any factual orlegal allegation and proposed civil penalty." 14 C.F.R. 

### § 13.208(c).**~!:** ;,**:~** .-""The Respondent's Motion asserts that the FAA's Complaint fails to include essential factual allegations to support the alleged violation of 14 C.F.R. 

### § 21.303(a). (Mot. 1.) In response, the FAA asserts that the Respondent has ample informal notice ofthe facts involved in this case, based on settlement discussions and other communicationspreceding the filing ofthe Complaint. In addition, the FAA argues that the Respondent's failure to request discovery, and/or to file a Freedom ofInformation Act (FOIA) request, demonstrates that the Respondent has sufficient information to formulate an answer to the Complaint. (Resp. 6.) Before reaching the parties' dispute regarding what factual allegations are necessary to supportthe FAA's May 7, 2013 Complaint, and how those factual allegations need be plead, the legal allegation in the Complaintmust be identified. The FAA's May 7, 2013 Complaint asserts the following: Byreason ofthe foregoing facts and circumstances, Respondent violated Section 21.303(a) ofthe Federal Aviation Regulations whichprovides that, except as provided inparagraph (b) ofthis section, no person may produce a modification orreplacement part for sale for installation on a type certificated product unless it is produced pursuantto a Parts Manufacturer Approval issued underthis subpart [Title 14 ofthe Code ofFederal Regulations (CFR), Section 21.303(a)]. (Compl. 2 (brackets in original).) However, the legal language cited inthe FAA's May 7, 2013 Complaintis notthe regulatory language contained in Section 21.303(a). Instead, Section 21.303(a) states the following (inpart): The applicant for a PMA must apply in a form and mannerprescribed by the FAA, and include the following: (1) The identity ofthe product on which the article is to be installed. (2) The name and address ofthe manufacturing facilities at whichthese articles

· are to be manufactured. (3) The design ofthe article, which consists of--- [remaining regulatory language omittedherein].

Page 2 of5In essence, the FAAhas cited regulatory language in its May 7, 2013·Complaint that no longer exists. Section 21.303(a) was revised in April2010. As ofthe effective date ofApril14, 2010, Section 21.303(a) no longer contained the language identified and relied upon by the FAA in its' May 7, 2013 Complaint. See 74 Fed. Reg. 53368, 53390 (Oct. 16, 2009), effective date amended by 75 Fed. Reg. 9095 (Mar. 1, 2010). This April2010 revision occurred approximately eight (8) months priorto the alleged December 2010 violation in this case, and approximately three (3) years prior to the FAA's filing ofthe May 7, 2013 Complaint. Thus, the FAA's Complaint fails to set forth the regulation allegedly violated in sufficient detail to provide notice ofthe legal allegation. Itis unclear whether the FAA is alleging a violation of 14 C.F.R. § 21.303(a) as effective on all dates stated inthe Complaint; ora violation of 14 C.F.R. § 2l.9(a), which is a revision ofthe former requirements in 14 C.P.R.§ 21.303(a) and (b), see 74 Fed. Reg. 53368, 53373; or ofan as yet unidentified regulation that contains the language cited inthe Complaint

- ifsuch a regulation exists. The Respondent has requested that the FAAplead with specificity six detailed factual allegations. (Mot. 1.) In light ofthe deficient legal citation cited in the Complaint, it is impossible to determine at this time the specific factual allegations necessary to supportthe Complaint. Thus, the Respondent's Motion should first be granted in part, to allowthe FAAto correctthe deficient legal citation and any alleged factual support relevant to the actual legal citationthat the FAAbelieves the Respondent has violated. However, the FAA shouldbe mindful, when preparing its more definite statement (or amended complaint), that informal conferences and private settlement discussions betweenthe parties prior to the filing ofa complaint inno way alleviates the FAA'sresponsibility to adhere to the pleading requirements of 14 C.F.R. § 13.208(c). Notice pleading, as the name suggests, requires actual notice in the pleading. A properpleading informs not only the named Respondent, but also the administrative court and members ofthe public. See, Steven BaickerMcKee, et.al, Federal Civil Rules Handbook, West Publishing (2012)(Rule 12(e)-Motion for More Definite Statement)(Both the court and the litigants are entitledto know, atthe pleading stage, who is being sued, why, and for what), See also, In re Delaware Skyways, LLC, FAA

Page 3 of5,r Order 2005-6 at 7 (Mar. 8, 2005) (Fed. R. Civ. P. 12(e) cited as additional guidance inreviewing sufficiency ofcomplaint filed in an administrative proceeding). Properpleading, which includes pleading sufficient factual allegations in support ofthe legal citation, does notplace a heavy burden onthe FAA or any complainingparty that seeks formal relief. In an administrative proceeding, a complaint mustprovide sufficient information so that the respondent 'understoodthe issue' and 'was affordedfull opportunity' tojustify its conduct during the course ofthe litigation."'

### AlohaAirlines, Inc. v. 

### CivilAeronauticsBd, 598 F.2d 250, 262 (D.C. Cir. 1979) (quoting

### NLRB v. 

### Mackey Radio & 

### Tel. Co., 304 U.S. 333, 350 (1938)). It is well-established that a pleading is not a substitute for discovery. Likewise, discovery is not a S\lbstitute for aninsufficient complaint. A sufficient complaintmustbe filed before a respondent is tasked withthe burden ofdiscovery. 

### See, Steven Baicker-McKee, et.al, 

### Federal Civil RulesHandbook, West Publishing (2012)(Rule 12(e)-Motion for More Definite Statement)(whenthe pleading's "meaning is unclear, the properremedy is a motion for a more definite statement"). Based onthe forgoing, and after reviewing all relevant caselaw, statutory authority, regulations, other authorities, and being fully advised;



### IT IS HEREBY ORDERED: 1. The Respondent's Motion for More Definite Statement is granted inpart. 2. Pursuantto 14 C.F.R. 

### § 13.218(f)(3)(i), the FAA shall file a more definite statement of the legal allegation contained inthe Complaint, and also provide any alleged facts supporting that legal allegation, or file an amended complaintprovidingthe same, no laterthan fifteen (15) days afterthe service date ofthis Order (i.e., on orbeforeJuly 31, 2013).

. Page 4 of 5

### ·' 3. The Respondent's remaining part ofthe Motion for More Definite Statement, in which the Respondent specifically requested either clarification on six (6) different factual matters or an order striking the allegations, is reserved. 4. Pursuantto 14 C.F.R. 

### § 13.209(a), no later than thirty (30) days afterthe FAA serves the more definite statement (or amended complaint), the Respondent shall file either a written answer, or a renewed motion for reliefto the FAA's supplemental or amended Complaint (i.e., on orbefore August 30, 2013). 

### 5. Should the Respondent file an Answer to the FAA's more definite statement (or amended complaint), thenthe Respondent's Answer will be deemed a waiver ofpart ofthe Respondent's motion herein, that was reserved pending supplemental filing, regarding the sufficiency ofthe FAA's supplemental pleading.

Attachment: Service List

Page 5 of5•'



### SERVICE LIST- BY U.S. MAIL

Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 ORIGINAL & 

### ONE COPY

Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 1



### Mark G. Camacho, Complainant's Counsel 

### Federal Aviation Administration ONE COPY

Senior Enforcement Attorney, Central Region, ACE-7 Room 506, DOT Building 901 Locust St. Kansas, MO 64106-2641 TEL: 816-329-3765 FAX: 816-329-3771 Douglas J. Barnard, Esq., Respondent's Counsel 

### Mr. Karnran Rouhani Respondent 

### FDMS No. FAA-2013-0284

14695 Airport Parkway, 2nd Floor Clearwater, FL 33762 Aviation Engineering Consultants, Inc 2750 Sunset Point Road TEL: 727-259-0224 FAX: 727-259-0223 Judge J. E. Sullivan US. AdministrativeLawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2132 FAX: 202-366-7536 Clearwater, FL 33759

1 Service was byU.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2Wl000, Washington, DC 20591; Attention: HearingDocket Clerk, AGC-430.