In The Matter Of: 

SERVED: JULY 31, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2014-0119 

SPIRIT AVIONICS, LTD. 

) 

) 

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Case No. 2012-GL-07-0056 

Respondent 

ORDER GRANTING THE FAA'S MOTION TO 

FILE A LATE RESPONSE AND GRANT~~G THE RESPONDENT'S MOTIONS 

FOR EXTENSION AND TO STRIKE THE FAA'S MOTION FOR DECISION 

On August 27, 2014, an Order Setting Litigation Dates and Procedures was filed. Among 

other things, this Order set the following filing deadlines with the Office of Hearings: 1) June 1, 

2015 for any Dispositive Motions; 2) June 22, 2015 for Answers to any Dispositive Motions, and 

3) July 13,2015 for filing a Reply (if any). The August 27,2014 Order also set August 11,2015 

(1 0:00-11 :30am) for oral argument on any Dispositive Motions (8/27 /14 Order, 3 ~~ 10 and 11 ). 

On June 1, 2015, the Respondent, Spirit Avionics, Ltd., filed a Motion for Decision 

("Motion"). Nine days later, on June 10, 2015, the Respondent's co-counsel, Mr. Patrick J. 

Moro, filed a Notice of Appearance (dated May 28, 2015). 

On June 22,2015 the FAA failed to file an Answer to the Respondent's June 1, 2015 

Motion. 

On July 1, 2015 the FAA filed a combined Response to Respondent's Motion for 

Decision ("Response") and Complainant's Motion for Decision in Favor of the Complainant 

("FAA Motion"). 1 

On July 7, 2015 the FAA filed a Response to Respondent's Motion to Strike, in which it 

also requested leave to file a late Response to the Respondent's Motion. 

1 The July I, 2015 date of filing with the Office ofHearings ofthe FAA's Response and FAA's Motion will be 

addressed infra in the body of this Order because of conflicting service dates included in the filing . 

.. 
Six (6) days later, on July 13, 2015, the Respondent filed a Motion to Strike 

Complainant's Response to Respondenfs M~ti,?n,f9r Decision and Complainant's Motion for 

Decision ("Motion to Strike"). 

That same day, on July 13, 2015 the Respondent filed a Motion for Extension of Time to 

Respond to Complainant's Motion Pending the Decision of Respondent's Motion to Strike Filed 

on 7-1-2015 [sic] ("Motion for Extension").2 

The Respondent did not file any Reply on or before July 13, 2015. 3 

BRIEF DISCUSSION 

All materials have been read and considered, but only certain matters will be discussed in 

this Order. 

1. Office ofHearings' Filing Deadline 

The deadline dates given to the partiesJor :lliling documents with the Court represents the :_! ,,, • 

last date (i.e., deadline date) that the documents must be date-stamped as received and filed at the 

Office of Hearings. While parties may certainly mail via first class mail their documents for 

court filing, there is no guarantee that such mailing will only take five days, because after the 

September 2001 attacks, all documents mailed to federal offices undergo screening prior to 

delivery to the federal addressees. This screening and delivery by a federal mail center can 

sometimes take two weeks or longer. 4 Thus, a party seeking to comply with court filing 

deadlines solely by mailing documents to the Office of Hearings may not be successful, since it 

is difficult for the parties to anticipate a filing date by mailing. 5 

2 This document was dated July 6, 2015, mailed by U.S. Mail, and was received and date-stamped at the Office of 

Hearings seven (7) days later on July 13,2015. 

3 In its July 13,2015 Motion to Strike, the Respondent requested an extension of time to file a Reply, since if its 

Motion to Strike the FAA's late Response was granted, no Reply would be necessary. (Mot. Extension, 1.) 

1 ,., . ,, ~11~~ 4 For example, the U.S. Department ofTransportation's·rnail center is sited in a location separate from the Office of 

Hearings, and is not under the Office of Hearings' control and authority. Thus, once mail screening is finished, 

additional time must be added for the mail center to deliver the mail to the Office of Hearings. 

5 A _good example ofthis mandatory mail screening time lag is demonstrated in the filings herein, where the 

Respondent's Motion to Strike was mailed on July I, 2015, but took 12 days before it was date-stamped received 

and filed by the Office of Hearings on July 13,2015. 

Page 2 of7 
As a result, to ensure that the parties meet court filing deadlines, and to assist in the 

Court's timely management of the case, this Court has strongly encouraged the parties to file 

documents with the Office of Hearings by fax, express delivery, or personal delivery. (6/9/14 

Order, 2; 8/11/14 Tr. 6:22-17). The Court has also encouraged the parties to file court 

documents by fax, and provided the parties with the Court's fax number orally (8/11/14 Tr. 8:5-

11) and in writing with every service list (see, Service Lists dated 6/9/14, 7116/14, 8/11/14, and 

8/17/14). 

In short, although it is the partie(' choice re~,~rding how they file documents with the 

Court, the parties are on notice that an:/ court fiiirig deadline date given in this, and any other 

Orders issued by this Court, is the date the document is date-stamped received at the Office of 

Hearings. 

2. Filing Date with the Office of Hearings re: FAA Response and Motion 

The FAA's July 1, 2015 materials, which contained a combined Response and Motion, 

attached a Certificate of Service dated June 29,2015. However, it also included a fax cover 

sheet, addressed to the Office of Hearings, which was dated the following day, on June 30, 

2015. 6 Despite these two June 2015 dates, the FAA's materials were actually faxed to the Office 

of Hearings on July 1, 2015. Thus, the court filing date for both the FAA's Response and Motion 

is July 1,2015. 

3. Respondent's Motion to Strike the FAA Response t. . .. ' :\1 .•. ~ 

·:· . il 

', .i i 

It was undisputed that the deadline for filing any dispositive motions was June 1, 2015. 

The deadline for filing any answer to such dispositive motions was June 22, 2015. (8/27/14 

Order, 3 ~~ 10 and 11). The Respondent timely filed its Motion on June 1, 2015. It was 

undisputed that the FAA did not file a timely Response on or befo~e June 22, 2015. 7 Instead, the 

FAA filed its materials on July 1, 2015- nine (9) days late. 

6 Not surprisingly, this erroneous cover sheet date led the Respondent to believe that the FAA had filed the 

document with the Office of Hearings on June 30,2015 (Mot. Strike, 1). 

7 The Respondent argued that pursuant to 14 C.P.R.§ 13.218(d), the FAA's response was due no later than ten (10) 

days after service of its written motion on the FAA. (Mot. Strike, I.) According to the Respondent, because the 

Page 3 of 7 
In response to the Motion to Strike the F A~ts. Response, the FAA admitted that the 

FAA's Response was untimely. It asserted, however, that there was go()d cause for the untimely 

filing, because "counsel was not aware she had missed the deadline until the Motion to Strike 

was received [by the FAA] via United States Postal Service on July 6, 2015." (Resp. Mot. Strike, 

1.) 

In addition, the FAA asserted that counsel was "in the middle of a hearing" when the 

Respondent's Motion for Decision "was served and subsequently suffered a medical issue that 

kept her out of the office." (Jd.) No specific dates or further information was provided. 8 The 

FAA argued, however, that the Respondent was not prejudiced by the nine day delay, and 

requested that it not be punished for "counsel's failure to appreciate the deadlines involved." 

(I d.) 

It is unclear to this Court how the FAA could be unaware of the dispositive motion 

deadlines, since these were discussed, and agreed tiD~, by the FAA during the August 27,2014 ., '";:.· 

Litigation Scheduling Conference. (8/27114 Tr~ 1'0:22-13:10.) In addition, these same deadlines 

were then codified in writing in the August 27, 2014 Order (8/27 /14 Order, 3 ~~ 10 and 11 ). This 

August 27, 2014 Order was then both faxed and separately mailed (by U.S. mail) to both parties 

on August 27, 2014. Ideally, such duplicative notice of the deadline dates provides each party 

ample opportunity to know the deadlines, calendar them, and comply with them. 

Nevertheless, as this Court has noted in the past, as humans we each have unique 

challenges in our lives, and imperfection by busy counsel can sometimes occur. The FAA 

counsel has filed a Response, apologized for the delay, and has asserted, as an officer of the 

court, that a medical issue prevented a timely filing of the Response. In this particular case, given 

the short nine (9) day delay and counsel's asserted medical condition, the FAA has made a 

minimal showing of good cause, which is hereby deemed sufficient to excuse the FAA's delay in 

FAA had been served on June 1, 2015 with the Respondent's&fotion, the FAA's Response was due "no later than 

June 11, 2015." (Jd.) However, this argument ignores''the litig1i'hon record, and the fact that the specific deadline of 

June 22, 2015 was set by Court Order, after disCussion withrand agreement by the parties. (8/27/14 Order, 3 'lf'lf 10 

and 11). The Respondent did not provide any legal support for inferring that the August 27, 2014 Court Order 

should be deemed to be invalid or, alternatively, should just be ignored. While the Respondent is welcome to 

research and provide authority for this type of argument in future motions, it will not be given any further attention 

here. 

8 The lack of specificity provided by the FAA in support of its good cause assertion was troubling, and in a different 

case could easily result in a finding that insufficient facts were provided. 

Page 4 of7 
filing its Response. As a result, the FAA's untimely filed July 1, 2015 Response to the 

Respondent's Motion should be accepted and considered. 

4. Respondent's Motion for Extension to file Reply 

As noted earlier, in its July 13, 2015 Motion to Strike, the Respondent requested an 

extension oftime to file a Reply beyond July 13,2015, since if the FAA's late Response, filed 

July 1, 2015 was not considered, no Reply would be necessary. (Mot. Extension, 1.) ..;:.~., . • ~:' .. ! 1\:. .. •. :·;) ~ !'' 

Ideally, the Respondent should have filed its• Motion with this Court immediately upon 

receipt of the FAA's late filed July 1, 2015 Response, and certainly prior to the Respondent's 

own July 13, 2015 Reply deadline date. Although the record shows that the Respondent mailed 

(by U.S. Mail) its Motion for Extension on July 6, 2015, this Motion was not received and filed 

with the Office of Hearings until seven days later- on July 13, 2015. Therefore, a ruling on the 

Motion for Extension could not be made prior to the Respondent's July 13, 2015 deadline for 

filing a Reply, because the Court was not notified of the Motion until the deadline date. This 

situation is a perfect example of why this Court strongly encourages parties to fax, express mail, 

or personally deliver documents to the Office of Hearings in addition to, or as an alternative to, 

regular U.S. mailing. 

However, there is still time for the Court to consider the Motion for Extension, and for 

the Respondent to file a Reply (if any) prior to the August 11, 2015 Motion Conference. Based 

on the material filed in this case, and th~ fact thattlfe.'Respohdent has had time to review the ••·• ' 1 .. 1. ~ ! 

FAA's Response since July 1, 2015, the Respondent's Motion for Extension should be granted, 

and its Reply deadline should be extended from July 13, 2015 to August 7, 2015. 

5. Respondent's Motion to Strike the FAA's untimely Motion for Decision 

The deadlines set forth in the Order Setting Litigation Dates and Procedures were 

unambiguous. The parties were required to file any dispositive motions no later than June 1, 

2015. (8/27/14 Order, 3 ~ 10.) The FAA failed to meet this deadline, and instead filed its 

dispositive Motion on July 1, 2015, which was 30 days late. 

As noted above, an untimely filing may be excused where a party can show good cause. 

In.the instant case, the FAA did not provide any good cause excuse for its failure to timely file 

Page 5 of7 

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the FAA's own dispositive Motion. It is noteworthy that the FAA counsel only requested relief 

to untimely file "the Response to Respondent's Motion for Decision." (Resp. Mot. Strike, 1.) 

The reasons provided for such late filing of the Response (i.e., counsel attendance in a hearing, 

and then subsequently suffering a medical issue), are inapplicable to the FAA's 30 day delay in 

filing its' dispositive Motion, because the stated good cause events took place after the June 1, 

2015 deadline had expired. · 

Thus, the FAA has presented no good cause grounds for its late filing of the Motion. In 

this case, even if good cause had been offered, allowing the FAA to file such a late Motion 

would require scheduling new response and reply dates, a new telephone Motion date, and 

potentially require a continuation of the hearing date itself, which is currently set to begin on 

October 20,2015. Taking all facts into consideration, the Respondent's Motion to Strike the 

FAA's cross Motion for Decision should be granted . 

CONCLUSION . .. ~J' . t'. ·, i'' 

'I 

Having reviewed the case file, all pleadings and motions, all relevant caselaw, statutes, 

regulations, rules, and authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The FAA has shown good cause for the nine (9) day delay in filing its late Response to 

the Respondent's Motion for Decision. 

2. The FAA's motion to file an untimely Response to the Respondent's Motion for Decision 

is hereby granted. The FAA's Response is accepted and will be considered. 

3. The Respondent's Motion for Extension of Time to file a Reply to the FAA's accepted 

Response is granted. 

4. On or before August 7, 2015, the Respondent shall file its Reply (if any) to the FAA's 

Response. The Respondent is also directed to fax a courtesy copy of its Reply to both 

I 

this Court and the FAA, on or before August 7, 2015, to ensure that the Reply may 

considered and meaningfully discussed during the August 11, 2015 oral argument. 

Page 6 of7 
5. The FAA has not demonstrated good cause for failing to comply with the June 1, 2015 

court-ordered dispositive motion deadline, or for its thirty (30) day delay in filing its July 

1, 2015 Motion for Decision. 

6. The Respondent's Motion to Strike the FAA's untimely July 1, 2015 Motion for Decision 

is granted. The FAA's untimely Motion for Decision will not be considered. 

7. The previously scheduled Telephone Motion Conference for presentation of oral 

argument on dispositive motions, set for August 11,2015, at 10:00 a.m. Eastern time, 

is re-confirmed. The parties shall access the Motion Conference by dialing 202-493-

2343. 

Attachment: Service List 

Page 7 of7 
Docket No. FAA-2014-0119 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W10007 

ONE COPY 

Ms. Kate Barber 

Complainant's Counsel 

Federal Aviation Administration, AGL-7 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

TEL: 847-294-7862 

FPC(: 847-294-7498 

Mr. Jerry A. Eichenberger 

Respondent's Counsel 

Eichenberger & Associates 

6037 Frantz'Road, Suite 107 

Dublin, OH 43017 

TEL: 614-798-1600 

FPC(: 614-798-1620 

Judge J .E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Mr. Patrick J. Moro 

Respondent's Co-Counsel 

Eichenberger & Associates 

603 7 Frantz Road, Suite 1 07 

Dublin, OH 43017 

TEL: 614-798-1600 

FPC(: 614-798-1620 

E-mail: pmoro@ehlawyers.com 

7 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 2Wl000, Washington, 

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

to'- t. ~ .. '.