In The Matter Of: 

SERVED: February 22, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2014-0867 

BIRMINGHAM 

FLIGHT CENTER, INC. 

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Case No. 2012S0090053 

Respondent 

ORDER DENYING RESPONDENT'S MOTION TO DISMISS 

AND RESERVING RULING ON OTHER SANCTIONS 

On November 18, 2015, the Respondent, Birmingham Flight Center, Inc., filed the 

Respondent's Motion for Sanctions ("Motion"). 

On December 10, 2015, the FAA filed a Response in Opposition to Motion for Sanctions 

("Response"). 

On December 16, 2015, the Respondent filed the Respondent's Motion for Protective 

Order and Request to Delay the Filing of a Reply to the Administrator's Response [sic] 

Respondent's Motion for Sanctions. 

On December 17, 2015, an Order Granting the Respondent's Request to File a Reply, but 

Denying Motions for Protective Order and Leave to Take Depositions Before Filing a Reply was 

filed. 

On January 15, 2016, the Respondent filed the Respondent's Reply to the Striking the 

FAA's Response in Opposition to Motion for Sanctions ("Reply"). 

A. Short Summary of Dispute 

Only certain matters will be highlighted in this discussion, which addresses only the 

Respondent's Motion for Dismissal as a sanction. Other requested sanctions are reserved, and 

will be addressed in a separate Order. 
The Respondent generally alleges that "[f]rom the inception" ofthe FAA's investigation 

in this case, the FAA has engaged in "improper, sanctionable conduct." (Motion, 1, ~I.) The 

Respondent more specifically asserts that the FAA has violated the following: a) the FAA's own 

internal guidelines in investigating a civil penalty case; b) the Court's April 7, 2015 Order 

Setting Litigation Dates and Procedures; and c) the discovery procedures identified in Federal 

Rule of Civil Procedure ("Rule") 26 (Motion, 18, ~II (b); Reply, 1-3.) The Respondent requests 

dismissal with prejudice as a sanction, or in the alternative, other "sanctions as the Court deems 

proper and just." (Motion, 20.) 

In response, the FAA asserts that it did not engage in most of the behavior that the 

Respondent has alleged. Further, the FAA argues that even if it were proved that it failed to 

follow some of its own internal guidelines for investigation of a civil penalty case, such error 

would not be grounds for either dismissal or alternately plead sanctions. (Response, 1.) 

B. Authority for Dismissal and Sanctions 

In FAA civil penalty proceedings, a party may file a motion to dismiss, specifying the 

grounds for dismissal, at any time during the litigation. 14 C.P.R.§ 13.218(£)(2). The proponent 

of such a motion has the burden of proof. 14 C.F .R. § 1 ~ .224 (b). 

In addition, the FAA's Rules ofPractice ("ROP"), 14 C.P.R. Part 13, Subpart G, 

specifically provide, in four (4) separate sections, directions regarding the imposition of 

sanctions as follows: 1) sanctions involving filed documents, 14 C.F.R. § 13.207; 2) limitations 

regarding sanctions, 14 C.P.R.§ 13.205(b); 3) sanctions involving agreed joint schedules, 14 

C.P.R.§ 13.217(£); and, 4) sanctions for failures to comply with general discovery, 14 C.P.R.§ 

13.220(n). 

C. Arguments Regarding Dismissal as a Sanction 

In its request for dismissal, the Respondent acknowledges that none of the four ( 4) 

separate sections in the ROP specifically include dismissal as an allowable sanction. (Reply 11.) 

The Respondent argues, however, that dismissal is a sanction allowed by a) the Federal Rules, 

specifically Rules 26 and 37, (Motion, 1); b) the Court's inherent authority to manage litigation 

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(Reply, 9); and, c) by using as guidance decisions issued by the National Transportation Safety 

Board ("NTSB") (Reply, 11). 

In response, the FAA argues, in part, that dismissal as a sanction is not warranted, 

because it did not violate Rule 26 (Resp. 7). The FAA further argued that dismissal under Rule 

37(b)(2) and (c) would be inapplicable, because the Respondent has made unfounded allegations 

not supported by its materials. (Resp. 16.) 

D. Discussion 

All pleading and arguments submitted by both parties on the dismissal issue were fully 

considered. However, only certain matters will be highlighted in this discussion. 

1. General Federal Litigation Sanction Authority and Purpose 

It is well established in general federal litigation practice that a court has broad discretion 

to impose discovery sanctions, either for violation of discovery rules or orders, or under the 

court's inherent power to prevent abuse of the judicial process. 33 Am. Jur. Proof of Facts 3d 

459 (Dec. 2015); Phelps v. Wyeth, Inc., 280 F.R.D. 572 (D. Or. 2012); Rule 26(a) and Rule 

3 7( c). This may include sanctioning a party who violates court orders designed to enable judges 

to control their dockets and manage the flow of litigation. 33 Am. Jur. Proof of Facts 3d 459 § 6 

(Dec. 2015); Goldstein v. Co/borne Acquision Co .. LLC, 873 F. Supp.2d 932 (N.D. Ill. 2012); 

Mya Saray, LLC v. Al-Amir, 831 F. Supp. 2d 922 (E.D. Va. 2011). 

The purpose for imposing sanctions is multifold: 1) to punish a party for improper 

discovery or other conduct and assure that it will not profit from it; 2) to compensate the other 

party(s) for the expense and/or difficulties caused by any impropriety; 3) to specifically deter the 

offending party from future misconduct, and secure its compliance with a particular court order 

and/or other litigation duties; and, 4) to generally deter others from engaging in litigation abuses. 

33 Am. Jur. Proof of Facts 3d 459 § 1 (Dec. 2015). 

2. Authority of Administrative Court in FAA Civil Penalty Cases 

The authority of this Court to regulate proceedings in FAA civil penalty cases originates 

from Section 556 of the Administrative Procedure Act ("APA"), 5 U.S.C. § 556. The APA 

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provides in part that a U.S. Administrative Law Judge presides over administrative adjudication 

"[s]ubject to published rules of the agency and within its powers." The "published rules of the 

agency" governing this and all FAA civil penalty proceedings are the FAA's Rules of Practice 

("ROP") found in 14 C.P.R. Part 13, Subpart G. These rules are binding in FAA civil penalty 

proceedings. 

3. Federal Rules "Instructive" in FAA Civil Penalty Cases 

When the FAA promulgated its ROP in 1990, the FAA wanted to maintain a "less 

formal" administrative process. 55 Fed. Reg. 27563 (Jul. 3, 1990) (Discussion of Final Rule). As 

a result, it declined to adopt as controlling the Federal Rules of Civil Procedure. !d. at 27563. 

However, the FAA Administrator explained that its own rules regarding discovery, 

although not as detailed as the Federal Rules, were "already roughly parallel ... [to] the Federal 

Rules." !d. Thus, adding additional discovery safeguards, as urged by commentators, was 

unnecessary. The FAA Administrator also assured the public that the Federal Rules-and case 

law construing them-would be "instructive" in administrative civil penalty cases, for any 

discovery disputes or alleged abuses that might arise. !d. 

In short, the Federal Rules and case law are instructive, but "do not supercede [sic]" the 

FAA's ROP. See, e.g., Tokyo Air Cargo USA, FAA Order No. 2004-7, at 5 (Sept. 22, 2004); 

KDS Aviation Inc., FAA Order No. 91-17 (May 30, 1991) (Complainant's reference to Federal 

Rules "does not change the fact that it is the order itself-issued pursuant to the authority to 

"[r]egulate the course of the hearing in accordance with the rules of [14 C.P.R. Part 13, Subpart 

G]" contained in 14 C.P.R. § 13.205(a)(6)-that is binding on the parties). 

4. Dismissal as a Sanction- Not Authorized by the ROP 

As noted briefly above, both parties agreed that under the Federal Rules, dismissal may 

be utilized as a sanction for discovery violations. Generally, in imposing sanctions, the "court 

need not find that the party or its counsel acted willfully or in bad faith ... unless the sanction is 

dismissal ofthe complaint or entry of default judgment." 33 Am. Jur. Proof of Facts 3d 459, §§ 2 

and 9 (Dec. 2015); Bray & Gillespie Management LLC v. Lexington Ins. Co., 259 F.R.D. 568 

(M.D. Fla. 2009); Ulyanenko v. Metropolitan Life Ins. Co., 275 F.R.D. 179 (S.D. N.Y. 2011); 

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Rule 37; and Wallace v. McGlothan, 606 F. 3d 410 (ih Cir. 2010). It is also well-established in 

general federal practice that dismissal of a complaint is a "severe sanction" that should be 

granted only "sparingly" upon a finding that a serious violation or violations have occurred. 33 

Am. Jur. Proof of Facts 3d 459 § 21 (Dec. 2015); Montblanc-Simplo GmbH v. Colibri Corp., 

692 F. Supp. 2d 245 (E.D. N.Y. 2010.) 

a) FAA's ROP Limitation Regarding Sanctions 

However, pursuant to 14 C.F .R. § 13 .205(b ), the FAA's ROP limit the types of sanctions 

U.S. Administrative Law Judges may impose when presiding over FAA civil penalty cases. 14 

C.F.R. § 13.205(b) provides in part: 

The administrative law judge shall not issue an order of contempt, award cost to any 

party, or impose any sanction not specified in this subpart. If the administrative law judge 

imposes any sanction not specified in this subpart, a party may file an interlocutory 

appeal of right with the FAA decisionmaker pursuant to § 13 .219( c)( 4) of this subpart. 

14 C.F.R. § 13.205(b). 

As noted earlier, sanctions are specified in the ROP in four (4) separate sections. The 

Respondent has identified all four (4) sections in pleading for relief. (Reply, 9.) However, the 

ROP has expressly limited the use of sanctions, and dismissal as a sanction is not specifically 

allowed. Thus, even if a movant files a general motion for dismissal under 14 C.F.R. § 

13.218(£)(2), and the grounds alleged is improper conduct that should be sanctioned by dismissal 

(or default judgement), the specific limitation language under 14 C.F.R. § 13.205(b) prohibits 

dismissal or dispositive relief as relief. 

b) Recent FAA Administrator Decision -Dismissal not Allowed as Sanction 

The issue of dismissal as a discovery sanction was recently addressed by the FAA 

Administrator in the case of Gamache-Wortman, FAA Order No. 2012-4 (May 22, 2012). In this 

case, the Judge "incongruously" dismissed the respondent's request for hearing as a discovery 

violation sanction, and simultaneously entered a civil penalty finding and judgment for $2,500 

based on the allegations in the FAA's complaint. The FAA Administrator reversed both 

decisions, holding in part: 

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The Rules ofPractice in Civil Penalty Proceedings do not specify that an ALJ [sic] may 

dismiss a respondent's request for hearing as a sanction for a respondent's failure to 

respond to a discovery order or order to compel. 

Id. at 6. 

The FAA Administrator also noted that other sanctions, as specified under 14 C.F.R. § 

13.220(n), should have been considered and utilized for the respondent's discovery violations. 

!d. at 6-7. 

5. NTSB Decision- Not Controlling or Instructive 

The Respondent's alternate argument for dismissal based on decisions issued by the 

National Transportation Safety Board ("NTSB") must also be rejected. (Mot. 17.) The rules 

governing proceedings at the NTSB, or other administrative forums, do not supersede the FAA's 

ROP. It is also noteworthy that, unlike the NTSB rules (e.g., 49 C.F.R. § 821.19), the FAA's 

ROP do not place an affirmative duty on the FAA to provide the releasable portion of the 

Enforcement Investigative Report to a respondent by the time the FAA serves a complaint. 

E. Conclusion 

Although the FAA's ROP are "roughly parallel" to the Federal Rules, there are some 

exceptions and differences. Pursuant to 14 C.F.R. § 13.205(b), the FAA Administrator has found 

that dismissal may not be utilized as a discovery sanction in FAA civil penalty proceedings. 

Pursuant to 14 C.F.R. § 13.205, and after reviewing all relevant caselaw, regulation, statutory 

authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The Respondent's Motion for dismissal as a sanction is denied. 

2. The Respondent's Motion for alternate sanctions is reserved, and a further Order will 

issue shortly. 

Attachment: Service List 

Page 6 of 6 
Docket No. FAA-2014-0867 

(Civil Penalty Action) 

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-430 

Wilbur Wright Building-Suite 2W1 0001 

ONE COPY 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Office ofthe Regional Counsel, AS0-7 

Southern Region 

1701 Columbia Avenue 

College Park, GA 30337 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Paul R. Borth 

Respondent's Counsel 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025-4387 

TEL: 847-724-5520 

FAX: 815-356-7042 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M:..2o 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Birmingham Flight Center, Inc. 

Respondent 

4243 East Lake Blvd. 

Birmingham, AL 35217 

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 2W1000, Washington, 

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