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

UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATIONADMINISTRATION FEDERALAVIATION 

### * ADMINISTRATION Complainant, 

## * 

## * FAA-2015-0203 Vs. Judge J.E. Sullivan 

## * ROMNEY CYCLE CENTER Respondent 

## * MOTION TO FILE OUT OF TIME ANSWER Comesnow, 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 Courtto file an out oftime answerinthis matter. OnJanuary 22,2015, the FAA filed a Final Notice ofProposed 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 I0, 2015, the answer would have been due to this CourtbyMarch 17, 2015 pursuantto 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 immediatelycontactedthe Court and filed the instant motion andthe Answer herein. II. Argument As an initial matter, counsel is loatheto shift any blame on anyone other than himselffor this administrative error because all receipt ofcorrespondence to the 

### Firm is counsel'sultimate responsibility and not the responsibility ofother Firm personnel. Counsel also respects this Court's authority in this matterregarding 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 SafetyEquipment andSign Co., LTD., 1992 WL 753223, *2 (1992). This "forgivingeye" canenable the Respondentto haveits day in Court notwithstanding the administrative error in this case that was no fault ofits own. 

### !d. (courtholding that "[w]hereverpossible, cases should be disposed ofonthe merits after a hearing, rather than summarily because ofa procedural defect.") (citing In the Matter of Cornwall, 1992 WL 753155)(1992).)
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Tn short, counsel himselfdid not see the complaint until today, March 23, 2015 and since that exactmomenthas taken steps to remedy the issue by calling the Court, calling FAA counsel 1, and promptlyfiling the instant motion and the Answerto 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 hadnot been served with the complaint pursuant to the requirements of 14 C.F.R. § 13.208. Upon seeing the complaint on the website, counsel soughtto determine why this was the first time this was seen. First, counsel was engaged in a significant matter out oftown 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 orview any Federal Express mailings to his attention. Counsel canprovide 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 oftown on business travel during the week ofMarch 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 apackage was delivered to the Firm, counsel did not see the Complaint inthis matteruntil today. Counsel notes thathis 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 placedon the calendar regarding this matter. Nevertheless, as soon as the issue arose onMarch 23,2015, counsel tookprompt action and madethe instant filing to minimize the delay in this matter. These circumstances demonstrate the good faith under which counsel was operating in this case. 

### See SafetyEquipment, at *2 (holding that "[c]ounsel acted promptlyto cure the default upon learning ofit, andthe 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 SafttyEquipment, 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 inthis Court. Counsel filed apromptrequest for a hearing and has met all priordeadlines 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 lengthyposition statement to the FAAdetailing the significant defenses and facts inthismatter. Therefore, there is no questionthatthe Respondent and its counsel have been fully engaged with the process up until this point and wantsto be able to contest the FAA's allegations in Court. 

### See In the Matter of Cornwall, 1992 WL 753155)(1992) (holding that 

### "The hearingis fundamentalto the conceptof administrative dueprocess.") (emphasis added). This engagement is why counsel sought out why he had not received a Complaint which resulted in the prompt actions oftoday 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 ofthe filing ofthis Motion, 

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Second, there is no history ofmisconduct 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'srules, and has beenin 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'sFlying 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 defaultjudgmentin two previous cases and therefore was notpermitted to make a late filing based on that history). Finally, it shouldbe noted thatthe government is not prejudiced in this matter as the subject shipmentwasinMay 20I3, counsel discussed this matter withthe FAA in an informal teleconference in August 2014, and did not receive a Final Notice ofProposed Civil Penalty until January 22, 2015. The six-day time frame in this casefor this late filing does notprejudicethe government. The Respondent identified the issue and soughtto remedy itimmediately, and it was not in response tothe government's motion orany further effortthe government hadto 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 lawjudge found, although Respondent filed his answer late, it was still filed early in theproceedings, and Complainant did not appear to have been prejudiced by the late-filing"). In contrast tothelack ofprejudice the government would sufferhere, the Respondent, a small business with no history ofinfractions, would suffer significant prejudice if

### itwere denied its opportunity to seekreliefin this Court based on the administrative error in this case. 

### See Cornwall at *2 ("[tJhe lawjudge's concernthatRespondent would be penalized unfairly for an error not his own was appropriate."). Counsel does not want this six-day administrative error to negatively impactthe Respondent's ability to seek a hearing onthe merits. 

### See Safety Equipment, at *2 ("a close examination ofall the circumstances ofthis case, viewed with a forgiving eye, leads to the conclusionthat good cause is present."); 

### see also Cornwall, at *2 (holding that it was "equitable to reach the merits rather than to dispose ofthe case summarily due to procedural default"). Itis respectfully requested that based on all the facts and circumstances in this case, thatthe Court permitthe tiling ofthe Answer in this case.



### 3 9III703 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 thatthe Court permitthe six-day out oftime filing in this matter.

Date: March 23,2015

4 Respectfully Submitted,

Brian W. Stolarz LeClair Ryan 2318 Mill Road Suite 1110 Alexandria, Virginia22314 Telephone: (703) 647-5946 Fax: (703) 647-5951 brian.stolarz@leclairryan.com 10/11703 6847085 LeClair Ryan

Service List: Original and One Copy by Federal Expt·ess and by Facsimile Federal Aviation Administration 600 Independence Avenue, 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 ofHearings, M-20 United States Department ofTransportation 1200NewJersey 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 ofthe Regional Counsel AS0-7 Southern Region 1701 Columbia Avenue College Park, GA 30337

5 05:03:02 p.m. 03-23-2015 11 /11703 684 7085 LeClair Ryan 05:01:10p.m. 03-23-2015

**LECLAIR~YAN** Date: March23, 2015 

### To: Hearing Docket Clerk Number ofpages includingcover sheet: 

## jJ_

From: BrianW. Stolarz Emp. No. 3540 Remarks: FaxNumber 202.267.1293

FaxNumber 703.647.5951 Client/MatterNo. PhoneNumber 202.267.0377

PhoneNumber 703.647.5946 46641.0001
Please see attached inregards to Romney Cycle Center FAA Case No. 2013S0700320.

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