SERVKl): FEBRUARY 17,2012 

.::jyi^^)RMNTOF 

U.S. DEPARTMENT OF TRANSPORTATION .i!>;V'J^vQf^];^TO^^ 

OFFICE OF HEARINGS .'---^El OKERAlJUiNS 

WASHINGTON, DC 

M 'ii^ ?! A !(> 03 

IN THE MATTER OF 

LIGHTNING AIRCRAFT CORPORATION 

Respondent 

FAA DOCKET NO. |TO BE ASSIGNED] 

{Civil Penalty Proceeding) 

FDMS NO: FAA-20II-I 124 

ORDER OF CHIEF ADMINISTRATIVE LAW JUDGE GRANTING MOTION TO 

DISMISS REQUEST FOR HEARING AND ASSESSING A CIVIL PENALTY 

By their "Motion to Di.sniiss Request for A Hearing" doled September 9. 2011. 

Complainant seeks to dismiss Respondent's request for a hearing, arguing that Respondent failed 

to file its request within 15 days of receipt of the Final Notice of Proposed Civil Penalty 

C'FNPCP'") as required by 14 C.F.R. §13.218(0(2)(i).' On December 10. 2010. the Complainant 

issued a Notice of Proposed Civil Penally against Respondent in the amount of S6.600.00 for 

alleged violations of the Federal Aviation Regulations, and included information regarding 

Respondent's options for responding to the Notice." On May 5, 2010. Complainant issued the 

FNPCP . which was served upon Respondent via certified and regular US mail, and was served 

upon Respondent's counsel via same day facsimile and regular US mail. According lo 

Complainant's Motion, the certified mailing was received by Respondent on May 9. 2011. 

' Complninum's Moiion lo Dismiss Request tor u Hearing, at 1. Under 14 C.F.R. i? l3.21S(r)(2Hi) an agency aitnrney 

may tHe a motion lo dismiss a request for hearing instead of filing a complaint. See In the Mailer of Susan 

Richardson. DMS No. FAA-2()!()-l 2 10. Order Granting Moiion lo Dismiss Request for Hearing and As.sessing 

Civil Penalty (January 11. 20II). 

' Noliu'e of Propttsed Civil Penalty, ni 3. 

•' Final Notice of. Proposed Civil Penally, at 1. 

"* Complainant's Moiion lo Dismiss Request for a Hearing, at 1. 
Included in the FNPCP was a descrijjtion of the procedure to request a hearing, and 

directions tiiat a request for a Iiearing must be made within 15 days of receipt of tlie Final 

Notice.' On June 21. 201 1. the Complainant issued an Order Assessing Civil Penalty.' On 

August 31. 201 I. Respondent, through counsel, requested a hearing in this matter.^ 

The procedural rules require that Respondent pay the proposed civil penalty or file a 

request for hearing with the Federal Aviation Administration docket clerk within 15 days of 

receipt of a final nolicc of proposed civil penally.^ Failure to file a timely request for hearing can 

result in an order assessing civil penalty. Since the Respondent received the FNPCP on May 9. 

201 I, the request for hearing was due on or before May 24, 2011. Consequently. Respondent's 

August 31. 2011. request forbearing was untimely. 

Respondent has not filed an answer to Complainant's motion, but in its request for 

hearing Respondent argued that the untimely request should be granted, because its counsel's 

office had undergone "a number of unforeseen problems" beginning on or around April I, 

2011. Respondent argues that these problems prevented them from filing a timely request for 

hearing, and that the circumstances constitute "excusable neglect and inadvertence, justifying 

Respondent's untimely filing."" According to the request for hearing and an accompanying 

affidavit, around April I, 2011. Respondent's counsel's office lost four attorneys and became 

severely understaffed.'" The affidavit alleges that around this time Respondent's counsel drafted 

a request for hearing and gave it to one of his associate attorneys with instmctions to 'Tile and 

^ See Final Notice of Proposed Civil Penalty, at 3. 

" Order Assessing Civil Penalty at 1. 

^ Respondent's Request for a Hearing/Answer, at 2. 

^See I4C.RR. §13.16(d)(2). 

* 14 C.F.R. §13.16(d)(2) provides that "an order assessing civil penalty may tie is.sued if a person charged with a 

violation does not request a hearing under paragraph (g){2)(ii) of this section within 15 days after receipt of a final 

notice of proposed civil penalty* 

'° Respondent's Request for a Hearing/Answer, at I. 

"W. 

'•W. al2. 
. l ^ ' 

serve it on all parties." The associate atioiney subsequently left the firm, and the document was 

not served. Respondent further contends that on May 4. 201 I. its Counsel began a trial that 

lasted "many weeks longer than anticipated" and kept him from working in the office. 

Res])ondent contends tiiat Counsel only received notice that the request had not been filed when 

they were served with the Administrator's Order Assessing Civil Penalty."' 

An untimely request for hearing may only be excused for good cause.'^ In deciding 

I X 

whether good cause exists, we look to the reason why the document was late-filed. Good cause 

has been found to exist where the respondent did not understand that two civil penalty actions 

were pending against him and requested only one hearing because the nolicc in the second was 

virtually identical to the notice in the first. The Administrator has also found good cause lo 

exist where respondent's counsel miscalculated the deadline for perfecting an appeal, noting that 

counsel had taken "steps lo protect against the danger of default." such as reviewing the Rules of 

Practice and drafting an internal memorandum for others in his firm regarding calendaring of the 

appeal." On the other hand, good cause has not been found to exist, and civil penalties have been 

assessed, where a respondent neglected to explain an untimely request for hearing." 

The law does not favor defaults, and we understand that 14 C.F.R. !j 13.16(e)(2) is 

intended to ensure that a respondent will file a timely request for hearing - not to set a default 

'' Declaratitm of Charles Mathews in Support of Respondent's Untimely Request for a Hearing/Answer, at 2. 

'"' Respondent's Request lor a Hearing/Answer, at 2. 

'^ Dcclaralion (if Charles Mathews in Support of Respondent's Untimely Request for a Hearing/Answer, at 2. 

"* Respondent's Request for a Hearing/Answer, at 2. 

'"^ See In ihe Matter of Carl P. Uinf-hm. FAA Order No. 93-12 (March 25. 1993). 

'^ See In the Matter of Alpine Aviation, hic.. FAA Docket No. CP05NM0026. Order Served November 2. 2005 at 2; 

hi the Mattel af Michael John Costello. FAA Order No. 92-1 at 5 (January 9. t992f. R\an International Airline.w 

FAA Dockci No. CP99GL00I I. Order served July 20. 1999. at l.affd. FAA Order NO. 2000-2 (Fehruary 3. 2000). 

'^ Sec In the Matter of Robert Harris. FAA Docket No. CP03FA0()K Order Served August 27, 2003 at 2; //; the 

Matter of Raymoiul B. Strohl. FAA Order No. 94-6 (March 10. 1994). 

-" In the Mailer of Warheloxv's Air Veniiacs. Inc.. FAA Order No. 99-4 at 2-3 (July t. 1999). 

-' See. e.i;.. Ryan hiiernational Airlines. FAA Docket No. CP99GLOOI I. Order served July 20. 1999. at i.ajf'd. 

FAA Order No. 2(K)0-2 (February 3. 2000). 

3 
trap for the unwary."" Accotdingly. we have refused to grant defaitit juilgmcnts when 

respotidents tiiay have been confused by the technical requiiemcnls of these proceedings." 

However. Respondent is represented by counsel: iherefore. this is not a situation where 

Respondent may be said to be confused by a techtiical requiicnient. Indeed. Respondent and its 

coun.sel were warned in the Final Notice that a request for a hearing must be "mailed or 

personally delivered, on or before 15 days" after receipt of the Final Notice." Respondent's 

argument that unforeseen problems resulted in excusable tieglect are not persuasive. The 

timelines for filing a request for hearing were made clear lo Respondent at every stage of the 

proceedings. Additionally. Respondent provides no explanation for why after learning of its 

failure to file a timely rcqitest on June 21. 2011, it delayed an additional two months before filing 

its request. "Mere negligence of counsel cannot constitute good cause."" Absent an explanation 

for this additional delay, good cause has not been presented. Moreover. Respondent failed to 

reply to Complainant's motion to dismiss Respondent's request for hearing, and thereby waived 

any objection to the motion. 

Accordingly, the Complainant's motion lo dismiss Respondent's request for a hearing is 

granted, and Respondent is assessed a civil penalty in the amount of $6,600.00. Respondent may 

appeal this decision pursuant to 14 C.F.R. ij 13.233(a) by filing a Notice of Appeal with the 

Appellate Docket Clerk, Federal Aviation Administration. AGC-430. Wilbur Wright Building -

Suite 2W1000. SOO Independence Avenue. S.W.. Washington DC 2059 L not later than 10 days 

"' See. e.};.. Robert Harri.s.. FAA Docket No. CP03EAU01. Order served August 27. 2003. at 3: Spirit Airline.w Inc.. 

FAA Docket No. CP02GL0044, Order served April 23. 2002. at 3. 

-^ See e.g.. Robert Harris.. FAA Docket No. CP03EAn{)l. Order served August 27. 2003. at 3. 

•"' Final Notice of Proposed Civil Penalty at 3. 

'^ In the Matter of Spirit Airtine.s. Inc. FAA Docket No. CP02GL0()44. Order served April 23. 2002. at 2. citing In 

the Matter of Carl P. Langton. FAA Order 93-12 (March 25. 1993)(agency attorney's failure to return a telephone 

call from Respondent's counsel does not excuse Respondent's counsel's failure to file a timely hearing request). See 

also In the Matter of David Llo\(l Cornwall. FAA Order No. 92-47 (July 22. I992)(unfamiliarity with the rules of 

practice is not good cause). 
after service oi' this order by filing an appeal brief with the FAA decisionmaker 

SO OUnKRED. 

Ronni^^A. Yodei 

Chief Administrative U: 

Attachment - Service List 

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FDMS NO: FAA-20: 24 

SERVICE LIST 

ORIGINAL & ONE COPY 

U.S. Deparlmeni of Transportation 

Docket Operations. M-30 

West Building Ground Floor 

Room W12-140 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

ONE COPY 

Charles Mathews. Esq. 

Jeffrey Nakao. Esq. 

Hespoitdenl 's Counsel 

2596 Mission Street. Suite 204 

SanMarino. CA91108 

FAX; 626-683-8295 

Federal Aviation Administration 

Wilbur Wright Building -Suite 2WI000 

Attn: Hearing Docket Clerk, AGC-430 

800 Independence Avenue. SW 

Wa.shington. DC 20591 

Larry Buchanan 

Lightning Aircraft, Inc.. Rcspoiuleni 

4233 North Santa Anita. 

El Monte, CA 91731 

Lisa Toscatio. Cluinuml's Counsel 

Attorney. Office of the Regional Counsel 

Federal Aviation Administration 

P.O. Box 92007 

Los Angeles. CA 90009-2007 

TEL: 310-725-7100 

FAX: 310-725-6816 

The Honorable Ronnie A. Yodcr. 

Chief Adtnini.slrarive Law Jttili>e 

U.S. Depailment of Transportation 

Office of Hearings. M-20 

1200 New Jersey Avenue. S.E. 

Washington. DC 20590 

TEL: 202-366-2142 

FAX: 202-366-7536 

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