U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,**s~:p** 

### - 

## 8 2014 

## ;:\,RING DOCKET

vs. DocketNo. FAA-2013-1086 FAA CaseNo. 2011S0190181 PUERTO RICO POLICE DEPT., Respondent. Judge Sullivan
REPLY TO SHOW CAUSE RESPONSE Pursuant to the Judge's July 24, 2014, Order, the FAA hereby files its Reply to the Respondent's August 22, 2014, Show Cause Response, which concerned whether Respondent had shown good cause for its late-filed Answer. Respondent's Show Cause Response fails to present a good cause for Respondent's failure to timely file anAnswer. Inits ShowCause Response, Respondentrelies onIn the Matter of Cornwall, FAA Order No. 92-47 (1992). In Cornwall, the Administrator found that a Respondent had shown good
cause for his failure to timely file an answer where (1) the Complaint did not mention the requirement to file an Answer; (2) the mistake was made by Respondent's counsel, not Respondent; and (3) it was early in the proceedings. !d. at 2. Notably, the Administrator in Cornwall addressed aprior case, In the Matter of Playter, FAA OrderNo. 90-15 (1990), aff'dby Playter v. FAA, 933 F.2d 1009 (6th Cir. 1991), in which the Administrator had overturned the Judge's denial ofaMotionto DeemAdmitted. In distinguishing the two cases, theprimary factor relied upon by the Administrator was that the Complaint in Playter, unlike the Complaint in Cornwall, had informed the Respondent ofthe requirement to file an Answer. Cornwall at *3;

1see also In the Matter ofMetz, FAA Order 90-0003 (finding good cause for a pro se Respondent's failure to file an Answer where the FAA had not informed him ofhis obligation to file an Answer). 1 Here, like in Playter, the Complaint expressly informed Respondent of its obligation to file an Answer. Complaint at 2 ("PLEASE NOTE: Pursuant to Title 14 CFR Section 13.209(a), you are required to file a written answer to this Complaint, or a written Motionto Dismiss ifappropriate, not later than 30 days after the date shown onthe Certificate of Service") (emphasis in original). Respondent also relies on In the Matter of Safety Equipment and Sign Co., FAA Order No. 92-76 (1992). InSafety Equipment, the Administrator found good cause for a Respondent's failure to timely file an Answer when a member Respondent's counsel's stafffailed to notify counsel that the Complaint had beenreceived. That is notthe case here, as there is no indication that opposing counsel had not received and had an opportunity to review the Complaint. Additionally, inthe more recentIn the Matter of GlobalPeace Initiative, FAA OrderNo. 2008-8 (2008), the Administrator addressed a similar situation and concluded that good cause could not be shown where a member of Respondent's staff had mishandled the mail, resulting in Respondent's failure to timely file anAnswer. !d. at 7. In its Show Cause Response, Respondent also makes assertions regarding its "internal adjudicative procedures." Respondent appears to assert that the FAA had "tacitly" agreed that it could complete an internal investigationbefore filing an Answer, or that it "was not possible" to file an answer until an internal adjudicative procedures had been completed. See Show Cause Response at 3, 5. As an initial matter, the FAA notes that it does not have the authority to,

1Metz, as with several older cases, discusses whethertheFAA providedRespondentwith a copy oftheRules of Practice andProcedure. Unlike in the late 1980s and early 1990s, the internetnowmakesthe Rules ofPractice and Procedure readily availableto virtually all litigants, thus obviating any needfor the FAAto provide physical copies to Respondents.
2implicitly or explicitly, extend a Respondent's deadline to file an Answer- rather, this authority would lie only with the Judge. Further, the undersigned is unaware of any communications between the undersigned and opposing counsel that could be reasonably construed as giving
some marmer of "tacit" agreement with regards to Respondent's need to file an Answer. The undersigned notes that Respondent has referenced an internal investigation being conducted by Respondent, but these conversations pertained to settlement. In brief, information has been presented to the FAAthat Respondentretaliated against amechanic (or mechanics) who reported Respondent's safety violations to the FAA. Respondent has requested that the FAA reduce the proposed penalty, and the FAA has informed Respondent that it is unwilling to reduce the proposed penalty by any amount unless Respondent has demonstrated that there was no retaliation or that it had fully remedied any retaliation against the mechanic(s). Respondent requestedtime to conclude an investigationinto this matter (which has, according to Respondent, been repeatedly delayed by elections and intra-election changes inpolitical appointees), which is why there was such an extensive delay between the Notice in this case, issued on August 12, 2011, and the FinalNotice, issued on March 3, 2014. See FinalNotice ofProposed Civil Penalty, attachedto Respondent's Request for Hearing. Nothing inthese discussions inany wayrelatedto whether Respondenthad to file an Answer once litigationhad commenced. Respondent's argument in this regard is further foreclosed by Playter. As noted above,
one ofthe distinctions between Cornwall and Playter was that in Playter the FAAhad informed the Respondent ofthe requirement to file an Answer, while in Cornwall it had not. The second distinction was that in Playter the Respondent asserted that itbelieved that its representations to the FAA during the informal conference thatproceededthe sufficed as an Answer, and that it did not have to file the written Answer as required by the Rules ofPractice and Procedure (while in

3Cornwallthe failure to file an Answer was inadvertent). Similarly, Respondent argues here that it believed its conversations withthe undersigned, including atthe informal conference, meantthat it did not have to file a written Answer as required bythe Rules. This means that Respondent's failure to file an Answer was, according to its Show Cause Response, not inadvertent, but rather the result ofa conscious decision. With regards to whether Respondent could file an Answer before concluding its own internal investigation, Respondent presents no reasonwhy its investigationinto whether it should discipline its mechanic(s) for reporting safety violations to the FAA would have prevented it from admitting or denying the allegations in the Complaint, and even ifthe failure to complete the investigation had somehow denied Respondent full knowledge of the allegations in the Complaint, it could have simply filed an Answer denying particular allegations based on a lack ofknowledge sufficientto admit or deny (indeed, the Answer ultimately filed byRespondent did exactly that). Inthis case, the FAA explicitly informed Respondent ofits obligationto file an Answer. Respondent is not proceedingpro se, but rather is represented by counsel. Further, according to its representations in the original Opposition to Motion to Deem Admitted and in the Show Cause Response, Respondent did not simply fail to file its Answer through inadvertence, but rather chose not to file an Answer because it wanted to complete an internal investigation first. Underthese facts and circumstances, Respondenthas not showrt good cause. 

# !)"'A Respectfully submittedthis_[/_day ofSeptember, 2014,

# ~~ Christopher R. Stevenson Attorney Office oftheRegional Counsel

4CERTIFICATE OF SERVICE I hereby certifY that a copy ofthe foregoing FAA'sMotionto DeemAdmittedhas been sentthis date bythe following methods: original and one copyviacertifiedmail: Federal Aviation Administration 800 Independence Avenue, S.W. Attention: Hearing DocketClerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 Washington, D.C. 20591
one copy viacertifiedmail and facsimile: NazihraM. Abdulrahman Soler Office ofLegal Affairs Puerto Rico PoliceDepartment P.O. Box 70166 SanJuan, PR00936-8166 fax: (787) 781-7993 Honorable Judge I.E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJerseyAvenue, S.E. (Ell-310) Washington, DC 20590 fax: (202) 366-2131



# ~TA~g~

Legal Assistant Office oftheRegional Counsel

**S~P** 

### ? 

### 2014 Dated



### 5