In The Matter Of: 

WOOLPERT LLC 

Respondent 

SERVE]): September 2, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

) 

) 

) 

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Docket No. FAA-2015-0211 

Case No. 2013EA250068 

ORDER DENYING THE RESPONDENT'S MOTION 

FOR SUMMARY JUDGMENT, RESERVING THE I{AA'S MOTION TO AMEND, 

AND SETTING DEADLINE FOR RESPONDENT'S RESPONSE .• 

On June 3, 2015, an Order Denying the FAA's Motion to Dismiss was filed. 

On June 9, 2015, the FAA filed its Complaint. 

On July 8, 2015, the Respondent, Woolpert LLC, tiled the Respondent's Answer and 

Affirmative Defenses ("Answer"). 

On August 18, 2015, the Respondent filed the Respondent's Motion for Decision Seeking 

Dismissal with Prejudice ("Motion") . 

. On August 21,2015, the FAA filed the Agency's Response to Respondent's Motion for 

Decision ("Response"). This Response included an untitled motion to amend the pleadings, 

which is separately referenced herein as the "Motion to Amend." 

I. INTRODUCTION 

A. Complaint and Proposed Civil Penalty 

On June 9, 2015, the Regional Counsel for the FAA's Eastern Region filed a Complaint 

with the U.S. Department ofTranspotiation's Office of Hearings. The FAA's Complaint alleged 

that at "all times relevant" Respondent, Woolpert LLC, "owned and operated" a Cessna 4028 

aircraft. (Compl. 1, 'II II, 1.) The Complaint further alleged that "on or about July 31, 2013," the 
Respondent, Woolpert LLC, had operated a Cessna 402B aircraft on a flight from Eagle Creek 

Airpark in Indianapolis, Indiana to Essex County inCaldwell, New Jersey. (Compl. 1, ~II, 2.) 

The Complaint further alleged that the Respondent; as the "owner or operator" of the Cessna 

402B (Compl. 1-2, ~~II, 2-6) had committed multiple violations of the Federal Aviation 

Regulations (Compl. 2, ~II, a-c). 1 The Complaint further proposed a total civil penalty of 

$7,000. (Compl. 3, ~IV, 2.) 

B. Respondent's Motion for Summary Judgment 

The Respondent's Motion seeks complete dispositive relief on the merits of the alleged 

violations ofthe Federal Aviation Regulations ("FAR"), as well as the FAA's proposed total 

civil penalty of$7,000. (Motion, 5.) 

II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT 

Pursuant to 14 C.F.R. § 13.218, a party may file motions, including a motion for a 

decision on the merits, in advance ofa hearing when a party asserts that there is no genuine issue 

of material fact in dispute. Pursuant to 14 C.F.R. § 13.2.18(£)(5), any motion for a decision on the 

merits prior to a testimonial hearing is analogous to a motion for summary judgm~nt under Rule 

56 of the Federal Rules of Civil Procedure. Horizon Air Industries, Inc., FAA Order No. 96-24, 

n.3 (Aug. 13, 1996); Stebbins Aviation, Inc., DMS No. FAA-2000-7576-16, n.3 (Aug. 30, 2004) 

(Initial Decision). The purpose of summary judgment is "to isolate, and then terminate, claims 

and defenses that are factually unsupported." Steven Baicker-McKee, et al., supra, at 1122. 

Pursuant to Rule 56( a), a summary judgment motion may be granted if "the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter oflaw." See, Anderson v. Liberty Lobbylnc., 477 U.S. 242, 247-A8 (1986); 

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). In addition, pursuant to Rule 56(f), 

summary judgment may also be granted to a non-moving party, after all parties have had notice 

and a reasonable time to respond. 

1 The Complaint appears to have some clerical errors, since it provides three sections numbered "1, II, and IV" (i.e., 

missing section "Ill"). As a result, section "II" contains subsections with both Arabic numbers (i.e.," I, 2, 3, etc.) 

and English letters (i.e., "a, b, c, etc.). 

Page 2 of 7 
A fact is "material" if it is capable of affecting the substantial outcome of the litigation. 

Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at 248. A dispute is "genuine" if the 

evidence is such that a reasonable trier of fact could return a verdict for the non-moving party. 

See, Scott v. Harris, 5550 US 372, 380 (2007); Liberty Lobby Inc., 477 US at 248, Holcomb, 433 

F.3d at 895. 

On a motion for summary judgment, all evidence and inferences are to be viewed in the 

light most favorable to the non-moving party. However, a non-moving party (e.g., the FAA 

herein answering the Respondent's Cross-Motion) may not rest upon mere denials or allegations 

in the pleadings. Pursuant to Civ. R. 56( c), (d), and (e), a non-moving party who wishes to 

proceed to trial must respond to the motion for summary judgment, and set forth specific facts 

sufficient to show there is a genuine issue for trial. Celotex Corp. v. Catrett, 4 77 U.S. 317, 324 

(1986). See also, Citizens State Bank ofBig Lake v. Transamerica Ins. Co., 815 F.Supp. 309 (D. 

Minn. 1993); Baicker-McKee, et al., supra, at 1133-34 (a non-moving party may produce 

materials, and/or cite to materials produced or not produced by the movant in resisting the 

summary judgment motion). 

Pursuant to Rule 56 (c)( 1 )(A), specific facts alleged by either party may be asserted by 

submitting or citingto a variety of documents and declarations. Materials submitted during 

summary judgment proceedings must be capable of being offered at trial in an admissible form. 

See, Baicker-McKee, et al., supra, at 1135. Once the moving party has established a prima facie 

case, the burden shifts to the non-moving party to show, by affidavit or otherwise, that a genuine 

dispute of material fact remains for the fact-finder to resolve./d. at 1134 

On a summary judgment motion, the court does not rule on the weight of the evidence. 

See !d. at 1125 (The court never weighs the evidence, evaluates credibility or makes findings on 

disputed facts in summary judgment proceedings). 

Ill. EVIDENTIARY RULINGS 

A. Respondent's Factual Evidence in Support of Motion 

In support of its Motion, the Respondent submitted one (1) Exhibit, identified as Exhibit 

A. The FAA did not object to the admissibility of Exhibit A. As a result, Exhibit A is admitted 

for consideration in support of the motion. 

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B. FAA's Factual Evidence in Opposition to Motion 

The FAA submitted two (2) Exhibits, identified as "Attachments" A and B. The 

Respondent did not object to the admissibility of either FAA Exhibit A. As a result, FAA 

Exhibits A and B are admitted for consideration in opposition to the motion. 

IV. BRIEF DISCUSSION 

In its Complaint, the FAA alleged that when "Woolpert" had "operated the aircraft" on or 

about July 31,2013, it violated the following three sections ofthe FARs: 14 C.F.R. §§ 91.7(a), 

9l.407(a)(l), and 407.(a)(2). (Compl. 2, ~II, 4-6.) As noted in both the FAA's Complaint and 

the Respondent's Motion, the essential, common component of each of the charged regulations is 

that "no person may operate an aircraft" without compliance with the regulations' safety 

' 

requirements. (Compl. 2, ~II, a-c; Motion, 2.) 

The Respondent requested that the action be dismissed with prejudice. It presented 

unchallenged evidence that the Cessna 4028 aircraft had been registered to "Woolpert Inc." on 

February 12, 2013. (Mot. Exh. A). The Respondent then argued that it had conclusively 

"established" that "at all times relevant" the Cessna 4028 aircraft had been owned by "Woolpert 

Inc." instead ofthe Respondent, Woolpert, LLC and that "Woolpert Inc." was "separate and 

distinct" from Woolpert, LLC. (Mot. 3.) The Respondent also argued that it had produced 

"incontrovertible evidence" that "Woolpert, Inc" had been the "sole ... operator" of the Cessna 

4028 on or about July 31, 2013, and that the Complaint against Respondent, Wool pert LLC, 

should be dismissed. (Mot. 5.) 

In response, the FAA did not address the Respondent's Motion evidence or broad 

dispositive arguments. Instead, it asserted that "Woolpert Inc." and "Woolpert LLC" were not 

separate and distinct, and that it should be granted leave to amend its Complaint. (Resp. 3-5; 

Resp. Exhs. A and B.) 

In the materials presented, both parties appear to misunderstand the summary judgment 

process, and the evidentiary standard required in either making or opposing a summary judgment 

motion. For example, arguments are not a substitute for the critical and necessary submission of 

factual evidence in the motion or response; on each part of a claim or defense for relief. A party 

moving for or resisting summary judgment "must factually support their positions." BaickerPage 4 of 7 
McKee, et al., supra, at 1133. This obligation of factual support may be accomplished in either 

oftwo ways: 

First, they may cite the court to certain patis of the summary judgment record (which 

may contain depositions, documents ... affidavits or declarations, stipulations, admissions, 

interrogatory answers, or other materials). In doing so, their citation must be specific and 

to "particular parts" of the record materials. 

Second, they may show either (a) that the materials cited by their opponent do not 

establish the absence or presence of a genuine dispute or (b) that the opponent cannot 

produce admissible evidence to support the claimed fact. 

!d. (footnotes omitted). 

As noted above, the FAA did not address the Respondent's fact evidence, or the 

conclusions that the Respondent argued could be drawn from such evidence. As a result, the only 

question presented to this court is whether the Respondent has made a prima facie case 

suppotiing summary disposition of any part ofthe case. See !d. at 1133-34 (the party moving for 

summary judgment has the initial burden of proof.) 

In presenting its Motion, the Respondent exclusively focused on the initial Complaint 

allegation that it "owned and operated" the Cessna 402B during "all times relevant." (Compl. 1, 

~I; Mot. 3.) The Respondent ignored all the other allegations in the Complaint, which alleged 

that the Respondent had "operated" the Cessna 402B on or about July 31, 2013. (Compl. 1-2, ~ 

II, 2 and 4-6). The Complaint also alleged that the Respondent had been either an "owner or 

operator" of the aircraft. (Compl. 2, ~II, 5-6 (emphasis added).) Thus, the Complaint 

alternatively alleged that the Respondent owned and operated the Cessna 402B on or about July 

31,2013, or that the Respondent had operated the Cessna 402B on or about July 31,2013, in 

violation of the F ARs. 

It was undisputed, based on the unchallenged factual evidence presented by the 

Respondent, that a company named "Woolpeti Inc." had been the owner of the Cessna 402B 

when it registered the aircraft with the FAA on February 12, 2013. (Mot. Exh. A.) No other fact 

was established by this evidence,2 despite the vigorous arguments and conclusions made by the 

:~The Court is aware that Exhibit A has a "6/22/15" print date, and that it has an FAA web address at the top right 

hand corner of the page. However, these were not explained by fact evidence, and required certain assumptions, 

which should not be made in a summary judgment evaluation. It should also be noted that even if Exhibit A was 

Page 5 of 7 
Respondent in its Motion. (see, e.g., Mot. 3, ~~ 8, 9, 10, 11, and 12.) For example (not inclusive), 

the Respondent appeared to assume that Exhibit A was proof that "Woolpert Inc." maintained 

continuing ownership of the aircraft, up through the time of the alleged July 31, 2013 violations, 

without leasing or authorizing the aircraft's use by anyone else. No fact was submitted to support 

this assumption, or the conclusions drawn from it. Even if"Woolpert Inc.'s" continuing 

ownership of the aircraft had been proved, it would not have been dispositive, since the 

Respondent could have "operated" the aircraft with or without "Woolpert Inc.'s" 

"authorization." See 14 C.F.R. § 1.1. 

In summary, the essential common component of each of the charged regulations is 

operation of the aircraft. The definition of"operate," as acknowledged by the Respondent in its 

Motion, does not require proof of ownership to support the charges alleged. (Motion, 2; 14 

C.F;R. § 1.1.) Thus, whether the Respondent or the company named "Woolpert Inc." owned the 

Cessna 402B on February 12, 2013, when the aircraft was registered with the FAA, is not 

relevant to any of the three July 31, 2013 charged regulations in the Complaint. As a result, the 

fact established by the Respondent-that it did not own the Cessna 402B aircraft on February 12, 

21 03---is not material to the case. The Respondent did not present any fact evidence challenging 

the FAA's allegations that that it had "operated" the Cessna 402~ aircraft on July 31, 2013, the 

alleged date ofthe violations. The Respondent did not meet its prima facie burden ofprooffor 

summary judgment relief on any of the charged violations. 

V. CONCLUSION 

Based on the foregoing and after having reviewed the case file, all pleadings and motions, 

all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised; 

assumed to have been copied from a 2015 FAA public registry, Exhibit A still presented limited fact, since it 

qualified the potential accuracy of the data it provided, and recommended that another data base be checked to 

ensure accuracy. (Mot. Exh. A, 1.) 

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IT IS HEREBY ORDERED: 

1. The Respondent's Motion for Decision Seeking Dismissal with Prejudice is denied. 

2. The FAA's untitled Motion to Amend is reserved, and will be addressed in a separate 

Order. 

3. On or before September 18, 2015, the Respondent may file a response to the FAA's 

untitled Motion to Amend. 

Attachment: Service List 

Judge J 

U.S. Ad 

Page 7 of 7 
SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

F edei-al Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC--430 

Wilbur Wright Building-Suite 2W1 0003 

Mr. Dan Kohlmeyer 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: 718-553-3266 

FAX: 718-533-5699 

ONE COPY 

Mr. Gregory S. Winton 

Respondent's Counsel 

The Aviation Law Firm 

1997 Annapolis Exchange Parkway 

Suite 300 

Annapolis, MD 21401 

TEL: 301-294-8550 

FAX: 301-568-9886 

Judge J.E. Sullivan 

U.S. 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 

Docket No. FAA-20 15-0211 

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 2W I 000, Washington, 

DC 2059 I; Attention: Hearing Docket Clerk, AGC-430.