703 684 7085 LeClalr Ryan 05:02:06 p.m. 03-23-2015 

UNITED STATES DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION * ADMINISTRATION 

Complainant, * 

* FAA-2015-0203 

Vs. Judge J.E. Sullivan 

* ROMNEY CYCLE CENTER 

Respondent * 

MOTION TO FILE OUT OF TIME ANSWER 

Comes now, Respondent Romney Cycle Center ("Respondent" or "Romney Cycle") and 

hereby files this motion to file an out oftime answer by six days, and states the following in 

support: 

I. ProcedUJ'al Historv 

Respondent Romney Cycle Center seeks permission from this Court to file an out of time 

answer in this matter. On January 22,2015, the FAA filed a Final Notice of Proposed Civil 

Penalty. On February 6, 2015 the FAA received a written request for a hearing from the 

Respondent. According to the date on the complaint, February I 0, 2015, the answer would have 

been due to this Court by March 17, 2015 pursuant to 14 C.F.R.§§ 13 .209(a), 13.211 (e). On 

March 23, 2015, counsel discovered an administrative error regarding service in this matter and 

immediately contacted the Court and filed the instant motion and the Answer herein. 

II. Argument 

As an initial matter, counsel is loathe to shift any blame on anyone other than himself for 

this administrative error because all receipt of correspondence to the Firm is counsel's ultimate 

responsibility and not the responsibility of other Firm personnel. Counsel also respects this 

Court's authority in this matter regarding accepting this answer out oftime and as an initial 

matter respectfully requests that the Comt view this administrative error with a "forgiving eye" 

based on all the information provided herein. See In the Matter of Safety Equipment and Sign 

Co., LTD., 1992 WL 753223, *2 (1992). This "forgiving eye" can enable the Respondent to 

have its day in Court notwithstanding the administrative error in this case that was no fault of its 

own. !d. (court holding that "[w]herever possible, cases should be disposed of on the merits after 

a hearing, rather than summarily because of a procedural defect.") (citing In the Matter of 

Cornwall, 1992 WL 753155)(1992).) 

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703 684 7085 LeClair Ryan 05:02:20 p.m. 03-23-2015 

Tn short, counsel himself did not see the complaint until today, March 23, 2015 and since 

that exact moment has taken steps to remedy the issue by calling the Court, calling FAA 

counsel 1

, and promptly filing the instant motion and the Answer to the Complaint. Counsel was 

concerned about the case status in this matter and went to www.regulations.gov on March 23, 

2015 to investigate why he had not been served with the complaint pursuant to the requirements 

of 14 C.F.R. § 13.208. Upon seeing the complaint on the website, counsel sought to determine 

why this was the first time this was seen. First, counsel was engaged in a significant matter out 

of town in San Francisco, California during the time frame in which the complaint was 

purportedly sent (February 10, 2015 according to the complaint) and counsel did not personally 

see or view any Federal Express mailings to his attention. Counsel can provide the Court with an 

affidavit containing travel documentation to demonstrate the travel. Second, upon return from 

California, counsel had several court hearings, depositions, and professional commitments, and 

then was out of town on business travel during the week of March 2 through 6, 2015 and was not 

personally receiving mail parcels but rather relied on Firm personnel to open parcels and place 

time-sensitive matters on appropriate calendars. 

Therefore, although again counsel has ultimate responsibility for what is delivered to the 

Firm, to the extent a package was delivered to the Firm, counsel did not see the Complaint in this 

matter until today. Counsel notes that his assistant is very efficient and detail oriented and 

normally calendars his events on a calendar promptly based on information received, but no 

calendared events were placed on the calendar regarding this matter. Nevertheless, as soon as 

the issue arose on March 23,2015, counsel took prompt action and made the instant filing to 

minimize the delay in this matter. These circumstances demonstrate the good faith under which 

counsel was operating in this case. See Safety Equipment, at *2 (holding that "[c]ounsel acted 

promptly to cure the default upon learning of it, and the default caused only minimal delay"). 

Furthermore, although counsel understands that the primary analysis for this Court is 

good cause for the late filing, there are several facts for the Court's consideration regarding 

prejudice to the parties and equity and fairness in this matter. See Saftty Equipment, at *2 

(noting the overall factual circumstances in connection with the filing including the lack of 

prejudice on the government in connection with the late filing). First, this matter has had a long 

procedural history before being in this Court. Counsel filed a prompt request for a hearing and 

has met all prior deadlines in this matter including an informal teleconference with the FAA. 

Counsel also had discussions and e-mail exchanges with the FAA attorney regarding this matter. 

Counsel also filed a lengthy position statement to the FAA detailing the significant defenses and 

facts in this matter. Therefore, there is no question that the Respondent and its counsel have been 

fully engaged with the process up until this point and wants to be able to contest the FAA's 

allegations in Court. See In the Matter of Cornwall, 1992 WL 753155)(1992) (holding that "The 

hearing is fundamental to the concept of administrative due process.") (emphasis added). This 

engagement is why counsel sought out why he had not received a Complaint which resulted in 

the prompt actions of today once the issue was identified. 

1 Counsel has called and left a voice mail with the FAA attorney and also sent her an e-mail today regarding her 

position on this Motion but has not received a response as of the filing of this Motion, 

2 

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703 684 7085 LeClair Ryan 05:02:40 p.m. 03-23-2015 

Second, there is no history of misconduct by this Respondent and in fact this its first time 

being involved with an FAA proceeding or with this Court. Also, although counsel again 

understands his responsibilities to understand the Court's rules, and has been in practice for 

approximately 16, this is counsel's first matter before this Court. This is a factor the Court can 

consider in the overall factual circumstances in this case. See In the Matter of Larry's Flying 

Service Inc., 1998 WL 158281, *2 (1998) ("stating that Larry's counsel has represented Larry's 

in two previous FAA AA civil penalty cases" and "narrowly escaped" a default judgment in two 

previous cases and therefore was not permitted to make a late filing based on that history). 

Finally, it should be noted that the government is not prejudiced in this matter as the 

subject shipment was in May 20 I 3, counsel discussed this matter with the FAA in an informal 

teleconference in August 2014, and did not receive a Final Notice of Proposed Civil Penalty until 

January 22, 2015. The six-day time frame in this case for this late filing does not prejudice the 

government. The Respondent identified the issue and sought to remedy it immediately, and it 

was not in response to the government's motion or any further effort the government had to 

expend. See Safety Equipment, at * l (government tlled a motion for decision after 15 days had 

passed without answer); see also Cornwall at *2 (holding that "[iJn addition, as the law judge 

found, although Respondent filed his answer late, it was still filed early in the proceedings, and 

Complainant did not appear to have been prejudiced by the late-filing"). 

In contrast to the lack of prejudice the government would suffer here, the Respondent, a 

small business with no history of infractions, would suffer significant prejudice if it were denied 

its opportunity to seek relief in this Court based on the administrative error in this case. See 

Cornwall at *2 ("[tJhe law judge's concern that Respondent would be penalized unfairly for an 

error not his own was appropriate."). 

Counsel does not want this six-day administrative error to negatively impact the 

Respondent's ability to seek a hearing on the merits. See Safety Equipment, at *2 ("a close 

examination of all the circumstances of this case, viewed with a forgiving eye, leads to the 

conclusion that good cause is present."); see also Cornwall, at *2 (holding that it was "equitable 

to reach the merits rather than to dispose of the case summarily due to procedural default"). It is 

respectfully requested that based on all the facts and circumstances in this case, that the Court 

permit the tiling of the Answer in this case. 

3 

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703 684 7085 LeClair Ryan 05:02:56 p.m. 03-23-2015 

III. Conclusion 

Wherefore, pursuant to 14 C .F .R. 13 .209(1), Romney Cycle respectfully requests that the 

Court permit the six-day out of time filing in this matter. 

Date: March 23,2015 

4 

Respectfully Submitted, 

Brian W. Stolarz 

LeClair Ryan 

2318 Mill Road 

Suite 1110 

Alexandria, Virginia 22314 

Telephone: (703) 647-5946 

Fax: (703) 647-5951 

brian.stolarz@leclai rryan .com 

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703 684 7085 LeClair Ryan 

Service List: 

Original and One Copy by Federal Expt·ess and by Facsimile 

Federal Aviation Administration 

600 Independence A venue, S. W. 

Wilbur Wright Building 

Suite 2Wl000 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk 

Fax: (202) 267-1293 

One Copy by Facsimile and by Mail 

Judge I.E. Sullivan 

United States Administrative Law Judge 

Office of Hearings, M-20 

United States Department of Transportation 

1200 New Jersey Avenue, SE (Eil-310) 

Washington, D.C. 20590 

Fax: (202) 366·7537 

One Copy by Mail and by Electronic Mail 

Rashwan Rich George 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel 

AS0-7 

Southern Region 

1701 Columbia Avenue 

College Park, GA 30337 

5 

05:03:02 p.m. 03-23-2015 11 /11 
703 684 7085 LeClair Ryan 05:01:10p.m. 03-23-2015 

LECLAIR~YAN 

Date: March 23, 2015 

To: Hearing Docket Clerk 

Number of pages including cover sheet: jJ_ 

From: Brian W. Stolarz 

Emp. No. 3540 

Remarks: 

Fax Number 

202.267.1293 

Fax Number 

703.647.5951 

Client/Matter No. 

Phone Number 

202.267.0377 

Phone Number 

703.647.5946 

46641.0001 

Please see attached in regards to Romney Cycle Center FAA Case No. 2013S0700320. 

NOTE: The informatidn contained in this facsimile message may be attorney privileged and confldentiallnformatiort, 

intended only for the use of the individual or entity named above. If the reader of this message is not the intended 

recipient, you are hereby notified that any d'1ssemlnation, distribution or copy of this communication is strictly prohibited. 

If you have received this communication in error, please notify us immediately by telephone and return the original 

message to us at the address below via the United States Pos\al Service. Thank you. 

FACSIMILE 2318 Mill Road, Suite 1100 

Alexandria, Virginia 22314 

Phone: 703.684.8007 \Fax: 703.684.8075 

ATTORNEYS AT LAW\ WWW.LECLAJRRYAN COM 

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