In The Matter Of: 

SERVED: February 17,2016 

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 

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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 in this proceeding, either as the FAA 

Complainant or as the Court. 

For example, the Respondent's November 18,2015 Motion and January 7, 2016 Reply 

both assert in argument that the FAA Administrator is the complainant litigant in this 

proceeding, or, in the alternative, serves as the court tribunal in these proceedings. (See; e.g., 

Motion, 1-2; Reply, 11.) Some of the FAA's materials, attached as exhibits to the Respondent's 

Motion, also repeat these assertions. (See, e.g., Mot., Ex. C.) 

A. Clarification of Both FAA Party Identity and Independent Court 

The parties' perception that the FAA Administrator is the complainant in this proceeding, 

or that the FAA Administrator serves as the tribunal in this proceeding, is incorre~t. It is an error 

that keeps occurring in FAA civil penalty cases, despite having been previously addressed by 

this Court. See, e.g., Jet Logistics, Inc., Dkt. FAA-2013-0290, Order Granting Protective Relief 

and Directing Procedural Compliance (May 29, 2014). The error is not insignificant, and should 

be corrected by both parties in all future filings. 
Pursuant to 14 C.P.R.§§ 13.16(h)-(i), and the FAA's Rules ofPractice,1 when the 

Respondent requests a hearing, the FAA refers the case to the Office of Hearings for independent 

adjudication. Upon such referral, the FAA Administrator is separated from the proceedings. 

Thereafter, throughout the litigation before this Court, the FAA Administrator is neither the 

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, in FAA 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 

behalf of the 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 independent U.S. 

Administrative Law Judge, serving within the Office of the Secretary, who is appointed to 

provide impartial adjudication over the FAA's administrative adjudication, pursuant to 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 of the FAA, promotes the FAA's wellestablished public goal of fair and impartial decision-making: 

[U]der the rules of practice, the adjudication function is performed initially by 

administrative law judges employed by the Office of the Secretary of the Department of 

Transportation .... Under the rule's [sic] separation requirements ... [the judges 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 of fairness? It also 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 Law Judge 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, 27 551 (Jul. 3, 1990) (Discussion of Final 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 of 3 
Administrator-who has not been involved in any way in the adjudication-may then serve as 

the first appeal tribunal if either the FAA Regional 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 of the FAA Administrator from the adjudication presumptively allows the parties to 

maintain confidence in any appellate review by the 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 of issues with the U.S. Court of Appeals. 14 C.F .R. 

§13.235. 

In short, for the parties in this case (or any other FAA civil penalty case referred to this 

Court) to assert that the FAA Administrator is either the complainant or the Court herein is 

erroneous, and easily results in the respondent litigants (or members of the public) forming the 

mistaken belief that the adjudication itself is biased, and/or the appellate review with the FAA 

Administrator might be a meaningless, foregone conclusion. To avoid such error, the parties 

herein should scrupulously avoid referencing the FAA Administrator as either the FAA 

complainant or as the Court tribunal in all future documents in this proceeding. 

Conclusion 

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 parties shall stop identifying the FAA Administrator as either the complainant or as 

part of the Court in this action. 

2. The parties shall also utilize the proper jurisdictional caption for all future filings (see, 

e.g., the jurisdiction caption on page 1 of this Order). 

Attachment: Service List 

Page 3 of 3 
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 0003 

ONE COPY 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 

Southern Region 

1701 Columbia A venue 

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 ofHearings, M-20 

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 

3 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.