InThe Matter Of: 

## SERVED: February 17,2016 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2014-0867 BIRMINGHAM FLIGHT CENTER, INC. ) ) ) ) ) ) Case No. 2012S0090053 Respondent .·- i

ORDER CLARIFYING FAA PARTY AND THE COURT'S JURISDICTION,

AND DIRECTING PROCEDURAL COMPLIANCE IN FUTURE FILINGS The record demonstrates that the FAA and the Respondent, Birmingham Flight Center, Inc., have filed multiple pleadings and motions, and in many ofthese materials have mistakenly identified the FAA Administrator as actively involved inthis proceeding, either as the FAA Complainant or as the Court. For example, the Respondent'sNovember 18,2015 Motion and January 7, 2016 Reply both assert in argument that the FAA Administrator is thecomplainant litigant inthis proceeding, or, inthe alternative, serves as the court tribunal in these proceedings. (See; e.g., Motion, 1-2; Reply, 11.) Some ofthe FAA'smaterials, attached as exhibits to the Respondent's Motion, also repeatthese assertions. (See, e.g., Mot., Ex. C.) A. Clarification ofBoth FAA Party Identityand Independent Court The parties' perceptionthat the FAA Administrator is the complainant in this proceeding, orthat the FAAAdministrator serves as the tribunal inthis proceeding, is**incorre~t.** Itis an error that keeps occurring inFAA civil penalty cases, despite having beenpreviously addressed by this Court. See, e.g., JetLogistics, Inc., Dkt. FAA-2013-0290, Order Granting Protective Relief and Directing Procedural Compliance (May 29, 2014). The error is notinsignificant, and should be corrected bybothparties in all future filings.Pursuant to 14 C.P.R.§§ 13.16(h)-(i), and the FAA'sRules ofPractice, 1whenthe Respondent requests a hearing, the FAArefers the case to the Office ofHearings for independent adjudication. Upon suchreferral, the FAA Administrator is separated from the proceedings. Thereafter, throughout the litigationbefore this Court, the FAA Administrator is neitherthe complainant litigant in the proceedings, nor does he, or any other FAA employee, serve as the Court in any capacity. 14 C.P.R.§ 13.203. In short, inFAA civil penalty cases referred to this Court, the FAA's Regional Counsel or other designated agency attorney is the complainant litigant, and prosecutes the civil action on behalfofthe FAA. See, 14 C.P.R. §§ 13.202 and 13.203. The case is not heard by either the FAA Administrator or by an FAA employee. Instead, the case is referred to an independentU.S. Administrative LawJudge, serving withinthe Office ofthe Secretary, who is appointed to provide impartial adjudication over the FAA's administrative adjudication, pursuantto 14 C.P.R. § 13.202 and 5 U.S.C. § 554. The FAA Administrator has explained that referring the case to an independent, U.S. Administrative Law Judge, who is not an employee ofthe FAA, promotes the FAA's wellestablishedpublic goal offair and impartial decision-making: [U]der the rules ofpractice, the adjudication function is performed initially by administrative lawjudges employed by the Office ofthe Secretary ofthe Department of Transportation

.... Under the rule's [sic] separation requirements

...[thejudges are not] subject to the [FAA's] control or supervision. 55 Fed. Reg. 27548,27551 (Jul. 3, 1990) (Discussion ofFinal Rule). This bright line separation is necessary to maintain not only a fair adjudication system but also to preserve the appearance offairness? Italso promotes confidence that any subsequent appellate involvement by the FAA Administrator will be thoughtful and fair. Thus, the FAA regulations provide that after a U.S. Administrative LawJudge fully and independently adjudicates the civil penalty proceeding and issues an Initial Decision, the FAA

1 The Rules ofPractice for this proceeding are set forth in Part 13, Subpart G, ofthe Federal Aviation Regulations (14 C.F.R. Part 13). 2 See, 55 Fed. Reg. 27548, 27551 (Jul. 3, 1990) (Discussion ofFinal Rule) ("[I]t is important that a system of adjudication be perceived as fair by those who are subject to it, not simply that it actually operate fairly.") Page 2 of3Administrator-who has not been involved in any way in the adjudication-maythen serve as the first appeal tribunal ifeitherthe FAARegional Counsel or the Respondent files an appeal from the Judge's Decision. See, 14 C.F.R. §§ 13.202, 13.203, and 13.233. This procedural separation ofthe FAA Administrator from the adjudication presumptively allows the parties to maintain confidence in any appellate review bythe FAA Administrator. See, 14 C.F.R. §§ 13.233, 13.234, & 13.235. Then, once the FAA Administrator issues an appellate decision, either party may pursue any further appeal ofissues with the U.S. Court ofAppeals. 14 C.F.R. §13.235. In short, for the parties inthis case (or any other FAA civil penalty case referred to this Court) to assert that the FAA Administrator is either the complainant orthe Court herein is erroneous, and easily results in the respondent litigants (or members ofthe public) forming the mistakenbeliefthatthe adjudication itselfis biased, and/or the appellate review with the FAA Administrator mightbe a meaningless, foregone conclusion. To avoid such error, the parties herein should scrupulously avoid referencing the FAA Administrator as eitherthe FAA complainant or as the Court tribunal in all future documents in this proceeding. Conclusion Pursuantto 14 C.F.R. § 13.205, and after reviewing all relevant caselaw, regulation, statutory authority, andbeing fully advised; IT IS HEREBY ORDERED: 1. The parties shall stop identifying the FAAAdministrator as eitherthe complainant or as part ofthe Court in this action. 2. Theparties shall also utilize the properjurisdictional caption for all future filings (see, e.g., thejurisdictioncaption onpage 1 ofthis Order).

Attachment: Service List

Page 3 of 3

### DocketNo. 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 2W10003 ONE COPY 

### Mr. Christopher R. 

### Stevenson Complainant's Counsel 

### Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue 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 LawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey 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

3 Service was by U.S. Mail. For service in person orby 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.