InThe Matter Of: 

### SERVED: July 22, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2014-0866 MISSISSIPPI AIREXPRESS, LLC ) ) ) ) ) · Case No. 2013S0950114 Respondent
ORDER GRANTING THE RESPONDENT'S MOTION TO DISMISS ACTION On February 2, 2015, an Order Adopting Proposed Briefing Schedule and Reserving Motion Conference was filed. Pursuantto this February 2, 2015 Order, the parties filed the following materials: 1) on February 19, 2015the Respondent, Mississippi Air Express, LLC, filed its Motion to Dismiss ("Motion");12) on



## Ma1~h 11, 2015 the FAA filed the Administator's [sic] Response [to] Respondent's Motionto Dismiss ("Response"); and, 3) onMarch 24, 2015 the Respondent filed Respondent's Rebuttal to Administrator's Response to Motionto Dismiss ("Rebuttal"). On April 15, 2015, the FAA and the Respondent convened bytelephone for a scheduled Motion Conference to present oral argument on the Respondent's February 19,2015 Motion. During the Motion Conference, the parties agreed to file supplemental material onthe issue of whether the FAA had complied with the two year time limitation period pursuant to 14 C.F.R. § 13.208(d), and ifnot, whether the FAA had good cause for any untimely filing. The parties also discussed a schedule for submitting supplemental materials and a new date to re-convene for a Second Motion Conference. On April17, 2015, an Order Setting

**Seco~d~Motion** Conference and Deadlines for
I Supplemental Filings was filed. Pursuantto this April 17, 2015 Order, the parties filed the following materials: 1) onMay 1, 2015, the FAA filed the Administator's [sic] Supplemental Response [to] Respondent's Motionto Dismiss ("FAA Supplement"); and 2) on May 18,2015,the Respondent filed the Respondent's Rebuttal to Administrator's Supplemental Response to Respondent's Motion to Dismiss ("R's Supplement"). The FAA did notfile a reply. On June 17, 2015, the parties convened by telephone for a second Motion Conference, and presented additional oral argument on the Respondent's Motion. All materials and responses, supplemental briefs, and arguments have been considered. Because ofthe volume ofmaterials, this discussion only highlights certainmatters. 

### A. Clarification ofF AA Party IdentitY The FAA'sMarch 11, 2015 Response and May 1, 2015 Supplementboth assert, intitle and content, that the FAAAdministrator is the complainant litigant inthis proceeding. This is an error. In civil penalty cases litigated before the Office ofHearings, the FAA Administrator is not the FAA litigant in the proceedings. Instead, the Regional Counsel or other designated agency attorney prosecutes the civil action on behalfoftheFAA. See, 14 C.P.R.§§ 13.202 and 13.203. The FAA Administrator remains separate from the proceedings. 14 C.P.R.§ 13.203. This separation is necessary in order to maintain not only a fair adjudication systembutalso to preserve the appearance offairness. 1Thus, once this Court issues an Initial Decision in a civil penalty case, the FAA Administrator-who has not been involved inthe prosecution-is the first appeal tribunal ifeither theFAA orthe Respondent files an appeal. See, 14 C.P.R. §§ 13.202, 13.203, and 13.233. After the FAA Administrator issues an appellate decision, the next appellate review is provided bythe U.S. Court



## ofApp~als,**sh~uld** either party pursue a further appeal. 14 C.P.R. §13.235. 

### B. Motion to Dismiss Issues 1. Didthe FAA fail to timely initiate this action? 2. Ifthe action was untimely initiated, has the FAA demonstrated good cause to excuse its failure to timely initiate this action?

1 See, 55 Fed. Reg. 27548, 27551 (Jul. 3, 1990) (Discussion ofFinal Rule) ("[I]t is importantthat a system of adjudication be perceived as fair by those who are subjectto it, not simply that it actually operate fairly.") Page 2 of 18 ,j
.... ' .•3. Ifthere was a timely initiation ofthis action, or, in the alternative, ifgood causehas been shownto excuse an untimely initiation, has the Respondent alternatively demonstratedprejudice under the defense oflaches? 

### C. Short Summary ofCase Facts Onor about January 30,2013,the FAA conducted an inspection ofthe Respondent's Antidrug andAlcohol Misuse Prevention Program. (Resp. 4.) Fourteen (14) months later, on March 26,2014, the FAA issued a Notice ofProposed Civil Penalty ("NPCP") tothe Respondent. (Resp. 4; Resp., Exh. 1.) The FAA's March 26,2014NPCP allegedthat Mr. Matthew Couch was the Respondent's owner and pilot. (FAA Resp., Exh. 1, 2

**~** 4(b).) The FAAthen allegedthat betweenthe dates of"January 1, 2012 and June 1, 2012" anindividual named Dante Abb*** 2 had performed "safety-sensitive functions while he was not inthe required Sprit [sic] random drug and alcohol pool." (Resp., Exh. 1, 2

**~** 4(c)-(f).) TheNPCP further alleged that "Between on or about [sic] December 6, 2011 and on or about October 16, 2011, Sprit [sic] Airlines failed to follow the recommendations ofthe SAP [sic]." (Resp., Exh. 1, 2

**~** 5.) Based onthese allegations, the NPCP then charged the Respondent, Mississippi Air Express LLC, with violations of 14 C.F.R. §§ 120.109(a)(1),3 120.223(a)(1)(i);4 and 120.115(b)(1).5· (Resp., Exh. 1, 2-3.) TheNPCP recommended a penalty of$2,200 for the violations. (Resp., Exh. 1, 3.) One month later, on April25, 2014, the Respondentrespondedto the March 26, 2014 NPCP by serving the FAAwith a one (1) page Letter, identifying its newly hired counsel and

2 The FAA'sNPCP allegations about Dante Abb*** were subsequently retracted, so the full name ofthis individual is not included in this Order. 3 14 C.F.R. § 120.109(a)(l)provides that no employer may hire any individual for a safety-sensitive function listed in§ 120.105 unless the employer first conductsa pre-employmenttest and receives a verified negative drug test result for that individual. ·· , ... 4 14 C.F.R. § 120.223(a)(l)(i)provides that each employer shall provide educational materials that explain these alcohol testing requirements and the employer's policies and procedures with respect to meeting those requirements.
5 14 C.F.R. § 120.115(b)(l)provides that each Employee Assistance Program education program must include at leastthe following elements: (i) Display and distribution ofinformational material; (ii) Display and distribution ofa community service hot-line telephone number for employee assistance; and (iii) Display and distribution ofthe employer's policyregarding drug use in the workplace. Page 3 of 16requesting a forty-five day extension oftimeto respond. (FAA Supp., Exh. 5.) The FAAagreed to the request for additional time. (FAA Supp., 3.) Seven weeks later, on June 13,2014,the Respondent servedthe FAA with athree (3) page Letter, with multiple attachments. (FAA Supp., Exh. 6.) In this June 13, 2014 Letter, the Respondent explainedthatMatthew Couch, its owner and pilot, was its only employee, and he had taken andpassed his alcohol and drug tests: 6 QFAA Supp., Exh. 6, 2

**~** 4.) The Respondent further explained that Dante Abb*** 7was not, and had never been, one ofits employees. (FAA Supp., Exh. 5, 2

**~** 3.) In addition, the Respondent pointed out thatthe FAA's allegations all involved "Sprit" Airlines, which was a different airline business, over which the Respondent had no authority or responsibility: In the letter dated March 22, 2014, to Mississippi Air Express, LLC, there are continuing references to Donte Abb***, who has never worked for Mississippi Air Express, LLC and references to Spirit Airlines random drug testing pool list and drug testing program. Apparently there is some confusion and it is my beliefthat your notice ofproposed civil penalty should be addressed to SpiritAirlines·rather thanMississippi Air Express, LLC. (FAA Supp., Exh. 5, 2

**~** 5.) Approximately three (3) weeks later, on July 7, 2014, the FAAissued an Amended Notice ofProposed Civil Penalty ("ANPCP"). (FAA Supp., Exh. 2.) Inthis ANPCP, the FAA removed all referencesto Dante Abb**·*, rando.rn cifug testing, "SpritAirlines", and the dates of January 1, 2012- June 1, 2012. 

### (!d.) The FAA's'ANPCP asserted newfactual allegations, involving Mr. Matthew Couch, pre-employment drug testing, alcohol and drug testing education requirements, and a June 20, 2012 date ofhire. 

### (!d. at 2

**~** 4(c) and (d).) The ANPCP then charged the Respondent with the same regulatory violations alleged inthe originalNPCP

6 The Respondent also provided a copy ofMr. Couch's "February 1, 2013" [sic] drug and alcohol lab test results. While notmaterial to the ruling herein, it should be noted that the Respondent's reference t9 a "February 1, 2013" date appears to be in error. The date ofFebruary 1, 2013 was the date the lab tests were "printed." (FAA Supp., Exh. 5, Art. C.) An examination ofthe test results attached to the Respondent's June 13, 2014 Letter demonstrate that the date test sample results were dated over ayear earlier, on January 23, 2012. (!d.)
7 While the spelling ofthis name is not material in ruling on these issues, it should be noted that the parties identified this individual's name differently. The FAA identified the individual as "Dante Abb***" in its NPCP, whereas the Respondent identified the individual as "Dante Abb*** in its communications (italics added). For consistency in this Order, the individual will be identified as "Dante Abb***" unless a direct quote from the Respondent's materials is utilized. Page 4 of 18'·' :!': ,,, ,,f "' (compare FAA Supp., Exh. 1, 3

**~** 1-3, with Exh. 2, 3

**~** 1-3), butbasedthese charges onthe new factual allegations. (FAA Supp., Exh. 2, 2

**~** 4(c)-(h)). Approximately four (4) months later, onNovember 18,2014, the FAA issued a Final Notice ofProposed Civil Penalty ("FNPCP"). (FAA Supp., 3; FAA Supp., Exh. 3.) Shortly thereafter, onNovember 26, 2014, the Respondent served the FAA with a Request for Hearing. On December 5, 2014, the FAA filed its Complaint, in which it repeated the allegations it had made in the July 7, 2014 ANPCP. (Compl. 2-3; Mot. 3.) D. Short Identification ofParty Arguments The Respondent is seeking dismissal based onthree primary arguments: 1) the prosecution is untimely; 2) the proceeding is barred by the defense oflaches;8 and 3) the Complaint fails to state a claim for relief.

**(N.~.: Th~Respondent's**  arguments regarding the sufficiency ofthe Complaint, and its inferredrequest for summaryjudgment on the pleadings are not addressed in this Order because ofmootness.) In response, the FAA argued (among other things): 1) the action was timely initiated; 2) the Respondent had sufficient notice ofthe allegations withinthe two year allotted period; and 3) the defense oflaches did not apply since the Respondenthad not demonstrated it suffered any actual prejudice.9 E. Two-Year Statute ofLimitations Applicable Intheir supplemental materials, both parties agreed that a two year limitation period applied. However, because ofmultiple filings onthis issue inrecent cases, a briefdiscussion about the two year limitation period is includedhere.

8 The defense oflaches was raised by inference in the Respondent's written arguments: "The [FAA] has delayed prosecution ofthis case to the detriment of[Respondent]; has prejudiced [Respondent] in the Defense ofits case, and therefore the Complaint must be dismissed." (Mot., 4.) The Respondent also specifically discussed laches in its oral argument. (See, e.g., 6/17/15 Tr. 18: 13-19:25.) 9 The FAA's written documents did not respond to the Respondent's laches arguments, but the FAA supplemented its written materials with oral argument on the issue. (6/17/15 Tr. 21:20-23.) Page 5 of 16Whenthe FAApromulgatedthe Rules ofPractice in 1990, the only statute oflimitations applicable to FAA civil penalty proceedings was found at 28 U.S.C. § 2462, whichprovided for a five (5) year limitations period: Except as otherwise provided by Act ofCongress, an action, suit orproceeding for the enforcement ofany civil fine, penalty, or forfeiture, pecuniary or otherwise, shall notbe entertained unless commencedwithin five years from the date when the claim first accrued if, within the same period, the offender orthe property is found withinthe United States in order that proper service maybe made thereon. 28 U.S.C. § 2462 (1990) (emphasis added). However, in 1990 the FAA examinedthis five-year statute oflimitations when it discussed the adoption ofthe Rules ofPractice. After consideration ofpublic comments, the FAA adopted a shortertwo (2) year limitations period. 55 Fed. Reg. 27548, 27553 (Jul. 3, 1990) (Discussion ofFinal Rule) (codified at 14 C.P.R. § 13.208(d). In adopting this self-imposedtwo (2) year limitations period, the FAA made clear that "the critical event" to commence an action "whichmustbe taken by the agency" was to issue "anotice ofproposed civil penalty within two years from the date ofthe alleged violations." 

### ld. Two years later, in 1992, Congress incorporatedthe FAA'stwo (2) year limitations period into the organic statute by amending

**se~tion'~01(a)(3)** oftheFederal Aviation Act of ·( . :

**~·, 1.~**  ) 1958 (49 U.S.C. § 1471(a)(3)) to provide in part: "Except for good cause, a civil penalty action shall not be initiated ... after 2 years from the date the violation occurred." FAA Civil Penalty AdministrativeAssessmentActof 1992, Pub. L. 102-345, § 2(a) (Aug. 26, 1992) (codified at 49 U.S.C. § 1471(a)(3)(E)(iii)) (revised andrecodified at49 U.S.C. §46301(d)(7)(C) byRevision of Title 49, UnitedStates Code Annotated, "Transportation, "Pub. L. 103-272, § 1 (Jul. 5, 1994) (emphasis added).

, Agency regulations implement statutes. 14 C.P.R.§ 13.208(d) implements 49 U.S.C. § 46301(d)(7)(C). Inpromulgating implementing regulations, an agency's interpretation ofthe organic statute is entitled to deference. Prior to the 1992 statutory enactment ofthe two year limitations period, the Administrator interpreted the term "commenced' contained in 28 U.S.C. 

### § 2462 to meanthe issuance ofa notice ofproposed civil penalty by an agency attorney. See 55 Fed. Reg. 27548,27552 (Discussion ofFinal Rule).. ,When Congress chose to codify the FAA's
i...' . ·;'·

**~~,'..., (~'-**  '/' I Page 6 of 18,. two (2) year limitations period in 1992, 

### itdid so without reference to the FAA's interpretation of "commenced'' in the statute. 10 Nevertheless, since 1992, the Administratorhas similarly interpretedthe word "initiated' in 49 U.S.C. §46301(d)(7)(C) to mean the issuance ofa notice ofproposed civil penalty. See RoyalAvionics Systems, Inc., FAA OrderNo.2002-6 at 7-8 (Apr. 16, 2002); High Exposure, Inc., FAA Order No. 2003-7 at 8 (Sept. 12, 2003). Based onthe foregoing, the applicable statute oflimitations for this proceeding is 49 U.S.C. 

### § 46301(d)(7)(C), not 28 U.S.C. 

### §2462. 11 The two (2) year statute oflimitationsruns from the date ofthe alleged violationto the date oftheNotice ofProposed Civil Penalty. 14 C.P.R. § 13.16(£). 12 Thus, 49 U.S.C. §46301(d)(7)(C) and 14 C.P.R. § 13.208(d) require the FAAto initiate a civil penalty proceeding no later thantwo years after the violation occurred unless the FAA can show good cause for any delay beyondtwo years.

·. ,\ 

### F. Defense ofLaches in Civil Penalty Cases The defense oflaches is an equitable defense. Laches is not generally available as a defense againstthe United States when it is acting in its sovereign capacity to enforce a public right or protectthe public interest. 13 See, e.g., St. John's GeneralHospital, 875 F.2d at 1071; Popovich, 820F.2d at 136 (5th Cir.1987), cert. denied, 484 U.S. 976 (1987). Nevertheless, when

1

## °Commence is defined as: to begin; to enter upon. Initiate is defined as: to begin, commence, enter upon; to introduce, set going, give rise to, originate, start. Oxford English Dictionary Online, http://www.oed.com (last visited Jul. 6, 2015). Therefore, the choice ofverb between 49 U.S.C. § 4630l(d)(7)(C) and the subsequently adopted 28 U.S.C. §2462 does not indicate congressional disapproval ofthe FAA's interpretation.
11 Based on the language of49 U.S.C. §4630l(d)(7)(C), the two-year statute oflimitations only applies to the administrative imposition ofcivil penalties. Section 2462 ofTitle 28 still applies to FAA civil penalty actions for which the U.S. district courts have exclusivejurisdiction under 49 U.S.C. §46301(d)(4) and 14 C.P.R. § 13.16(a). See also, 55 Fed. Reg. 27548,27553 (Jul. 3, 1990) (Discussion ofFinal Rule) ("the adoption ofa limitations period applicable to any case for which the agency does not have general assessment authority is outside the scope ofthis rulemaking.") · ::'
12 See, 55 Fed. Reg. 27548,27556 (Jul. 3, 1990) (Discussion ofFinal Rule) ("the FAA has always considered legal enforcement action to be initiated with the issuance ofa notice ofproposed civil penalty.")
13 The Federal circuits are split as to whether laches is applicable to any suits at law that are authorized under a legislative statute oflimitations. Compare Lyons Partnership, L.P v. Morris Costumes, Inc., 243 F.3d 789, 797 (4th Cir. 2001) (in federal copyright suit laches is not a defense to actions at law), and Ivani Contracting Corp. v. City of New York, 103 F.3d 257,260 (2d Cir. 1997) ("when aplaintiffbrings a federal statutory claim seeking legal relief, laches cannotbarthat claim, at least where the statute contains an express limitation period within which the action is timely"), with Chirco v. Crosswinds Communities, Inc., 474 F.3d 227, 234 (6th Cir. 2007) (laches can apply equally to claims at law and equity in federal copyright suit). Page 7 of 16the FAA adopted the Rules ofPractice in 1990, the FAA decidedthat a limited laches defense in civil penalty proceedings should be allowed: While not unmindful ofthis [laches] case law, considerations ofdue process, and a fair construction ofsection 555 ofthe Administrative Procedure Act, lead the agency to allow for a showing ofactual prejudice in an appropriate case. 55 Fed. Reg. 27548, 27556 (Jul. 3, 1990) (Discussion ofFinal Rule). The FAA's willingness to allow a laches defense appeared to.be a response to concerns raised by many public commentators, who urged expediency in FAA actions, and recommended thatthe FAA utilize a much shorter, six-month time periodto initiate safety enforcement actions with the filing ofa complaint. 55 Fed. Reg. 27548, 27555 (Jul. 3, 1990) (Discussion ofFinal Rule). The FAA declinedto adopt a six-monthtime limit for initiating an action, and also declined to utilize the two year limitationsperiod as a deadline for filing a complaint. 14 However, the FAA acknowledged that in "rare" cases, agency delay in prosecuting an action could result in "actual prejudice" to a respondent's case. 

### !d. Therefore, in such cases, dismissal ofthe action, or a portion ofthe action, could be requested: [I]t is possible that a respondent would be unable adequately to defend a civil penalty action because documents or witnesses becomeunavailable due solely to the agency's unreasonable or excessivedelay in initiating a case. Insuch a case, it is possible that a respondent cbuld make· such a showing ofactual prejudice and petition...to dismiss...onthe basis ofsuchprejudice. Id. at 27556 (emphasis added). In its 1990 discussion ofwhen the defense oflaches could be raised, the FAA did not distinguish between actions brought by the FAA withinthe two year limitations period versus outsidethe two year limitations period. 

### Id. at 27553-56. Thus, the laches defense may be raised by the Respondent in cases where the FAA has initiated the action withinthe two year limitations period, or inthose rare cases where the FAA initiates the action outside the two year limitations period and has proved good cause for its delay in initiating the case outside the

14 The FAA explained that requiring the complaintto be filed within the two-year period would eliminate the FAA's ability to engage in flexible negotiations and communications after the case was initiated. (!d.) Itwould also be detrimental to the Respondent, ifthe agency "issue[d] a complaint first and ask[ed] questions later." 55 Fed. Reg. 27548,27556 (Jul.

**3~** 1990) (Discussion ofFinal Rule).

..f
...... Page 8 of 18**·~I;:** limitations period. In either situation, the affirmative defense oflaches, ifraisedby a respondent, requires the respondent to make a showing of"actual prejudice" to the defense ofits case. 16 55 Fed. Reg. 27548, 27553-27556 (Jul. 3, 1990) (Discussion ofFinal Rule); John J. Carroll, FAA Order 90-21 (Aug. 16, 1990) at 3 (the respondent must show "undue prejudice")(citingArmco, Inc. v. Armco BurglarAlarm Co., Inc., 693 F.2d 1155, 1161 (5th Cir. 1982) and GullAirborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 843 (D.C. Cir. 1982)).


### G. Discussion As discussed above, and pursuantto 14 C.F.R. § 13.16(f), a civil penalty case is initiated by the FAA with the issuance ofa NPCP. Althoughthe FARs do not include the NPCP in its definition ofa "pleading",17 the NPCP ser\res as the,;first official notice to the respondent of alleged regulatory violations. Pursuantio 14



### C~F.R. § 13.16(f), the NPCP must specifically provide the respondent with the following information: 1) that a formal FAA civil penalty action has been initiated; 2) a "statement ofthe charges" (i.e., the basis ofthe action or nature of objectionable conduct), 3) the "amount ofthe proposed civil penalty" (i.e., the reliefrequested), and4) the limited time (i.e., 30 days) to respond. This required information in the NPCP appears to follow the general "pleading" 18 notice in federal civil litigation, whichrequires that a clai.m for reliefstate: 1) the court's grounds forjurisdiction; 2) a "short and plain" statement ofthe claim; and 3) a "demandfor relief." FRCP 8(a).
To ensure fair notice, the FAA has asserted that the specificity containedin the NPCP is as important as the specificity in any subsequently issued complaint. 55 Fed. Reg. 27560 (Jul. 3, 1990) (Discussion ofFinal Rule)("as a matter ofpractice and policy, the FAA's notices and complaints...in civil penalty actions comply [with this goal ofspecificity]"(emphasis added)).

··:: i 16 The FAA noted in its 1990 discussion, however, that typically an FAA letter ofinvestigation ("LOI") precedes the NPCP, and serves to notify the respondent that evidence needs to be collected and preserved. While the LOI did not replace the FAA's obligation to timely initiate the action by filing the NPCP, itdid "reduce... the chance" that a Respondent was "prejudiced by delay, especially where legal enforcement action is initiated within two years." 55 Fed. Reg. 27548,27556 (Jul. 3, 1990) (Discussion ofFinal Rule).
17 Pursuant to 14 C.F.R. § 13.202, a "pleading" in FAA administrative adjudication is defined as a complaint, an answer, or any amendmentto those documents. 18 In general, a "pleading" in federal civil litigation is a document that states "aclaim for relief." FRCP 8(a). Page 9 of 16The FAA's internal guidance to agency personnel also emphasizes the need for specificity inthe NPCP. The NPCP must set "forththe facts alleged, the regulations violated, andthe civil penalty proposed" andthe facts must be "setforth innumberedparagraphs and in sufficient detail that the allegedviolator has notice of the charges." FAA Order 2150.3B, at 6-19 (emphasis added). ,,, The purpose for such specific notice in theNPCP (and in federal civil pleading) is to provide the respondent clear and fair notice ofthe moving party's allegations and an opportunity to answer. E.g., Steven Baicker-McKee etal., Federal Civil Rules Handbook 345 (West Publishing 2012) ("Although encouraging brevity, t}Je federal pleading duty isfar from trivial; the pleading must still contain "enough"to give defendants fair notice ofa complaint's claims and the grounds for them.") In civil penalty cases, the respondent must answer the NPCP withinthirty (30) days, or a FNPCP will issue. 14 C.P.R. §13.16(t). Within that 30 day window, specificity in the NPCP allows the respondent to do the following (not inclusive): investigate the factual and legal allegations contained in theNPCP (14 C.P.R.§ 13.16(t)(2)(i)); consult with orhire counsel (14 C.P.R. § 13.16(t)); research any necessary law, obtain and/or preserve documentary and

. +l. testimonial evidence relevant to the charges 

### ((1'4 c;.F.R. § 13.16(t)(2)(i)); raise questions and objections regarding the content ofthe NPCP (Id.); obtain and submit any needed financial records (14 C.P.R. § 13.16(t)(2)(ii)); request an opportunity to engage in meaningful compromise or settlement discussions withthe FAA (14 C.F.R. § 13.16(t)(2)(iii)); or request further administrative review (14 C.P.R.§ 13.16(t)(3)). Iftherespondent files a timely response, as provided in 14 C.P.R. § 13.16(t), additional time may also be agreedto and utilized bythe parties to complete investigations and discussions. 1. Did the FAA fail to timely initiate this action? YES. Inthe instant case, as noted supra, it was undisputed that on or about January 30,2013, the FAA conducted an inspection ofthe Respondent's Antidrug and Alcohol Misuse Prevention Program. (Resp. 4; FAA Supp. 1.) Based onthat inspection, the FAA issued a NPCP one year and two months later, on March 26, 2014, alleging .t?atthe Respondent had committedrandom ti "1
. ( ,. Page 10 of 18-'.)· drugtesting violations from January 1, 2012 throughJune 30,2012. 19 (Resp. 4; Resp., Exh. 1, 2

**~** 4.) TheNPCP also asserted that "Sprit" Airlines had failed to follow the recommendationsof "the SAP" in the year 2011. (Resp., Exh. 1, 2

**~** 5.) 

### a) NPCP SignificantFactual Errors- InsufficientNotice The FAA arguedthatthe March 26, 2014 NPCP, which hadbeen issued within the two year statute oflimitations (for violations ultimately allegedto have occurred on, about, orprior to June 20, 2012), had been sufficient notice to the Respondent ofthe charges, despite the multiple factual errors it contained. However, the factual errors in the NPCP were significant and pervasive. For example, the March 26, 2014 NPCP asserted that "the F M's;inspection" 20 hadrevealed the following facts: I< , .

c. On or about January 1, 2012, Dante Abb*** became eligible for random drug testing. d. From on or about [sic] January 6, 2012 to June 30, 2012, Dante Abb*** performedthe duties ofa flight crewmember whenhe operated approximately onehundred sixty-six (166) flights. e. On or about June 1, 2012, Dante Abb*** name appeared on Spirit's random drug testing pool list. 

### f. Betweenthe dates ofJanuary 1, 2012 and June 1, 2012, Dante Abb*** performedthe above safety-sensitive functions while he was not in the required Sprit [sic] random drug and alcohol pool. (Resp., Exh. 1, 2

**~** 4(c)-(f).) As stated above, these factual allegations focused on violations ofrandom drug testing 

### ,,

.

**·~** :

**,:~** ... \ procedures involving Dante Abb***. The NPCP:next asserted:

19 Because the factual allegations in the NPCP did not pertain to the Respondent in this case, the fact that part ofthe time period initially alleged (i.e., January 1, 2012- March 25, 2012) appeared outside the two year time limitation for the March 26,2014 NPCP need not be addressed here.
20 It shouldbe noted thatthe FAA's NPCP did notprovide any information to the Respondent aboutthe date ofthe FAA inspection or who had conducted it. In addition, no specific information aboutthe inspection was contained in subsequently issued pleadings (i.e., the ANPCP, FNPCP, orthe Complaint) even though each documentreferenced an FAA investigation as the source ofdiscovery for the regulatory violations. There was also a briefreference in the NPCPregarding a "report ofinvestigation" that also remained undescribed. (FAA Supp., Exh. 1, 1.) Page 11 of 164. Between on or about [sic] December 6, 2011 and on or about October 16, 2011, Sprit [sic] Airlines failed to follow the recommendations ofthe SAP [sic]. 

### (!d. at 2

**~** 5.) 21 The NPCP then alleged that

**the·Respo9.d~nt,** Mississippi Air Express, Inc., had failed to ' ' comply with the FAA's regulations "for its antidrug and alcohol misuse preventionprograms." 

### (!d. at 2-3.) Itchargedthe Respondent withthree regulatory violations oftheFAA'sDrug and Alcohol Testing Requirements, 14 C.P.R. Part 120, SubpartE, and proposed a civil penalty of $2,200 for those violations. (Resp., Exh. 1.) Upon receipt ofthe NPCP, the Respondent immediately consulted with and hired counsel. On April25, 2014, the Respondent answered the NPCP withinthe 30 day window, and requested an additional 45 days to investigate. The FAA agreed to the request. Sevenweeks later, on June 13, 2014,'the Respondent filed athree (3) page Letter, with multiple attachments, explainingthat itwas fully compliant with the FAA's antidrug and alcohol requirements and random drug testing procedures. According to.the Respondent, the NPCP had not alleged any facts that were attributable to its business or its single owner/employee. (FAA Supp., Exh. 6.) The Respondent also suggestedthatthe FAAhad n;istakenly charged it with anotherbusiness's '•'1._1, l:'l\·':' possible violations. The FAA did not disagree that the fact allegations inthe NPCP were erroneous, orthat they pertainedto a different business. (Resp., 2.) The FAA argued, however, that the March 26, 2014NPCP should be deemed sufficient notification ofthe allegations againstthe Respondent because the NPCP had contained the following: 1) the Respondent's name; 2) the Respondent's Air Carrier Certificate Number; 3) the aircraft authorized for use bythe Respondent; 4) the name ofthe Respondent's owner and pilot; 6) the regulations the Respondent was requiredto follow; 5) the FAR sections allegedly violated; and 7) the proposed $2,200 civil penalty. (Id. at 2-3.) This argument was not legally supported or persuasive. As discussed 

### supra, the NPCP is supposed to provide specific and fair notice oftheFAA's allegations and the factual grounds supporting them, so thatthe Respondent can promptly investigate both the alleged facts andthe

21 The abbreviation "SAP" can mean different things

**in~diffe~~nt** contexts. The NPCP did not define what it intended by the abbreviation "SAP", although it might havebeen a reference to a Substance Abuse Professional. Page 12 of 18law, and preserve evidence ifneeded.22 Among otherthings, the NPCP is supposedto be specific enoughto give a respondent reliable and relevant information about what it should be investigating, ortaking steps to change, ifneeded. Telling the Respondent its ownbusiness name and certificate number, or the names ofits own aircraft and employees, or a list ofregulations allegedly violated, does notprovide sufficient factual data or fair notice ofthe FAA's inspection results or accusations. The NPCP inthis case did not provide the essential factual grounds to support its charges ofregulatory misconduct. Thus, the factually erroneous NPCP was insufficient. Itdid not provide timely notice to the Respondent ofessential facts and information that supported the FAA'sregulatory allegations. 

### b) ANPCPwas not issuedwithin the twoyear limitationperiod ·;\, 

### ''· Itwas undisputed that the subsequently issued July 7, 2014 ANPCP was the first notice the Respondent had ofany ofthe actual facts the FAA was specifically alleging, including allegations ofnewviolation dates. In the ANPCP, the FAA alleged that "on or about June 20, 2012" the Respondent had committed several regulatory violations. (Compl. 2-3

**~~** 4(f)-(g).) The ANPCP also alleged a general time period of"priorto" June 20, 2012, inregardto Mr. Couch's hiring date. (Jd., 3

**~~** 4(g)). Based onthe June 20, 2012 and "priorto" date allegations in the ANPCP, the two year statute oflimitations expired on June 19, 2014. Thus, the July 7, 2014 ANPCP was issued over two years after alleged violation dates. 23 (4/15/15 Tr. 13:5-15.) The FAA did not dispute that the ANPCP was issued untimely, outside the two year statute of limitations period, for the three charged regulatory violations. (4/15/15 Tr. 13:1-10.)

22 While an FAA letter ofinvestigation ("LOI") typically precedes the NPCP, and serves to notify the respondent that evidence needs to be collected and preserved, itdoes not replace the need for timely initiation ofthe NPCP. While not dispositive, it should be noted that neither party in this case offered that any LOI was ever issued, or that ifit was issued, that it contained accurate factual information.
23 Itshould be noted that in March 11,2015 Response, the FAA asserted that additional factual errors in the ANPCP alleging violations occurring on or about the dates ofJanuary 20-22,2012, should have "reasonably" been assumed as intended to be a different year, i.e., January 20-22,2013. (Response, 3.) Subsequently, however, the FAA acknowledged that whether or not Mr. Couch flew aircraft in January 2012 or January 2013 was "not necessary" to support the charges filed. (4115/15 Tr. 12:3-14.) Page 13 of 16

### c) The ANPCP didnot relate back in time to the NPCP 's issuance date The FAA argued, however, that ithad accurately given notice to the Respondent ofthe three regulations it allegedhad beenviolated, inboththeNPCP and inthe ANPCP.24 As a result, the Respondent had "sufficient" and timely notice ofthe regulatory allegations whenthe FAA issued its March 26,2014NPCP within the two year limitation time. (6/17/15 Tr. 11:4- 12:1.) This part ofthe FAA's arguments appeared to inferthatthe ANPCP shouldbe deemedto "relate back"to the time the NPCP was issued. In federal civil litigation, the "relationback" doctrine enables a plaintiffto correct a pleading error and/or add a newclaim, afterthe statutory period has expired, ifthe original notice has suffici'ently notified the respondent ofthe charges. 54 C.J.S. 

### Limitation of Actions§ 328 (2015).



### (!d.) The rationale for relation back is that a party who has been notified oflitigation concerning a particular occurrence has been giveri all the notice that statutes of limitations were intended to provide.

There is no FAArule ofpractice that specifically addresses a "relationback" argument. In such circumstances, the Federal Rules ofCivil Procedure maybe used as guidance. Rule 15(c) permits an amended pleading to relate back to the date ofthe original pleading in any ofthree circumstances: (1) whenthe statute oflimitations governing the cause of actionpermits relation back; (2) when the claim or defense inthe amended pleading arose from the same transaction or occurrence as that set forth inthe original pleading; or (3) when a newparty isjoined and it is not unfair .... Baicker-McKee et al., 

### supra, at 560. .. · u. . (·.n Inthe instant case, the firstcircumstance is inapplicable, because 49 U.S.C. § 46301(d)(7)(C) does not address relationback. Thethird circumstance is inapplicable, because the named, charged respondent, Mississippi Air Express, LLC, remained the same.

24 Although the NPCP focused its factual information on random drug testing violations, the regulatory violations charged were for pre-employment testing (14 C.F.R. § 120.109(a)(l)), and alcohol and drug testing education requirements (14 C.F.R. §§ 120.223(a)(l)(i), 120.115(b)(l)). These same regulations were cited again in the ANPCP. Page 14 of 18•\.. ,. Thus, the FAA's "sufficiency" argumentrises from the second circumstance- thatthe original pleading in the NPCP is sufficientto allow an amendment after the time limitation periodhas lapsed. However, itis well-established that charging the same regulatory violations inthe NPCP and ANPCP is not dispositive in determining whether an amended pleadingmay relate back. The "standard" for granting relationback amendments "is measuredbythe facts plead.... not ... onthe legal theory." Baicker-McKee et al., supra, at 561; See US. ex rel. Miller v. BillHarbertIntern. Canst. Inc., 608 F. 3d 871,881 (D.C. Cir. 2010) (relationback is improper when amendment seeks to fault defendants for conduct different from that factually alleged inthe original complaint). [T]he relationback ofthe amendments ofpleadings contemplates that parties may correct technical deficiencies or expand facts alleged in the original pleading, [but] it does not permit an entirely different

**tran~action)o b~:.alleged**  by amendment. 54 C.J.S. Lim'itation of Actions§ 332 (2015). Like the earlierNPCP, the July 7, 2014 ANPCP generally alleged the Respondent was required to complywiththe FAA's regulations "forits antidrug and alcohol misuse prevention programs." (FAA Supp. Exh. 2, 1 1

**~** 2.) Butthe ANPCP thenreplaced all the previously alleged factual charges. 25 It completely removed allegations regarding Dante Abb***, Sprit Airlines, random drug test violations, and SAP recommendations, and insertedbothnew violation dates and newly alleged facts?6 The ANPCP thenre-proposed the same penalty of $2,200 for the violations. (Resp., Exh. 2, 3.) Thus, the ANPCP did not assert "aclaim that arose outofthe conduct, transaction, or occurrence set out-or attemptedto be set out"-inthe NPCP. Fed. R. Civ. P. 15(c)(1)(B). Itwas not an amended notice that "expandedfacts" thathad already been alleged inthe NPCP. Instead, the ANPCP was a newnotice that cannotbe deemed to "relate back" to the NPCP.

**:~** )1,' >tt

25 Itis undisputed that multiple new facts alleged in the ANPCP were also erroneous, and irrelevantto the charged violations. (ANPCP, 2

**~** 4 (e)). This was discussed briefly during oral argument and will notbe further addressed here. (4/15/15 Tr. 11:17-12:19). 26 For example, even though the ANPCP continued to assert that the Respondenthad committed the previously identified regulatory violations, itdid not continue to allege that the Respondenthad violated random drug and alcohol testing requirements. Instead, the FAA asserted that the Respondent had failed to comply with preemployment drug testing (Resp., Exh. 2, 2

**~** 4(f)). In addition, the ANPCP alleged thatthe Respondent had not met the minimum requirements of"an EAP [sic] program" as required by the regulations. (!d. at 2

**~** 4(h).)Page 15 of 162. Ifthe action was untimely initiated, has the FAA demonstrated good cause to excuse its failure to timely initiate the action? NO. In 1990, the FAA emphasized it was committedto initiating civil penalty actions within the two year time limitations period. Itadopted this statutory time period to balance three primary interests: "(1) a respondent's iriterests intihlely notice and adjudication;" (2) the FAA's interest "inhaving sufficienttime to initiate a case onpain of dismissal or forfeit"; and "(3) the public interest inpromoting compliance with, and initiating enforcementaction ifnecessary..." 55 Fed. Reg. 27548, 27555 (Jul. 3, 1990) (Discussion ofFinal Rule) (emphasis added) The FAA also adopted a "good cause" standard that, "ona case-by-case basis," might excuse the issuance ofan untimelyNPCP after the two yeartime period. !d. at 27553. The FAA explained thatthis good cause exception was based onthe "firstprovision in 49 CPR 821.33(a)(1), the NTSB's articulation ofan exception to its stale complaintrule in certificate actions." (!d.) The FAA is adopting a "good cause" standard to account for delays attributable to the agency's inabilityto issue a notice within the 2-year period because the agency was not, or could not be reasonably expectedto be aware ofa possible violation. This exception is particularly critical where violations are discovered only as a result ofan accident or an incident that occurred long aftet;1 a

**viol,(trion,~pat** may have contributed to the accident or incident. · · '· Id. at 27555. In the instant case, FAA did not allege that it had been unable to issue a factually correct NPCP withinthe two yearperiod. The FAA did not allege that ithad not, or could not have been reasonably expected to be aware of, the Respondent's alleged June 20, 2012 violations within two years ofthat alleged date. Nor did the FAA argue that its January 30,2013 inspection had failed to uncover the facts it ultimately alleged in its ANPCP. To the contrary, it was undisputed thatthe FAAbasedthe factual allegations in the ANPCP on facts discovered during its January 30, 2013 investigation oftheRespondent's business. The FAA argued, however, that good cause existed to excuse the untimeliness ofthe ANPCP because the Respondenthad requested an extension oftime after receipt ofthe NPCP, which had delayed the proceeding. (FAA Supp. 3; BAA Supp., Exh. 5.) '• . ';''" :

**:~h** Page 16 of 18Forthe Respondentto argue and request this Complaintbe dismissed, seems unjust as the delay was caused byhim. The Administator [sic] graciously allowed an extension of time and amended its [NPCP] shortly thereafter. (FAA. Supp. 3-4.) In essence, this argument asserts thatthe FAA could not act during any agreed extension oftimerequestedby the Respondent. In addition, the FAA arguedthat ittookreasonably prompt action to issue the ANPCP after the Responden,t notified it ofall the NPCP omissions and errors. (FAA Supp. 3; FAA Supp. Exh. 2.) The FAA also asserted thatthe Respondenthad failed to prove any prejudice by the lack oftimely filing. The FAA's arguments are notpersuasive. First, it appeared undisputedthat the FAA's January 30, 2013 inspection ofthe Respondent's. Arttidrug and Alcohol Misuse Prevention Programhad discovered all the needed fact informationthat was contained in the ANPCP. (Resp. 4.) Thus, there was no factual or legal support for the FAA's assertionthat it could not act to correct its own errors in theNPCP at any time throughoutthe statutory two year period, much less during the sevenweeks utilizedby the Respondent (by agreement) to investigate and respond to the erroneous NPCP factual allegations. Second, even ifthe information the Respondenthad provided on June 13, 2013 had beennewto the FAA, and had served to further inform the FAA about its own allegations, there was no evidence presentedto show why the FAA could not have issued atimely ANPCP priorto the lapsing ofthe two year period (i.e., on June 19, 2014). Third and last, it should be pointed outthatthe Respondent is notrequired to show prejudice when it moves to dismiss for untimely initiation ofa civil penalty proceeding. Pursuant to 14 C.F.R. 

### § 13.208(d), a respondent need only shoyv thatthe FAAissued theNPCP more than ;·; ' l.i '
...{-.j', two years after the alleged violation(s) occurred. Once it is proventhatthe FAA failed to timely initiate the action withinthe two year time period, the burden shifts to the FAAto either prove good cause for the delay (14 C.F.R. § 13.208(d)(1)), or suffer 

### "thepain of dismissal or forfeit." 55 Fed. Reg. 27548,27555 (Jul. 3, 1990) (Discussion ofFinalRule)( emphasis added); 14 C.F.R. § 13.208(d)(2). Inthis case, the FAAhas failed to prove good cause for the delay, and must suffer the "painofdismissal."
Page 17 of 163. Ifthere was a timely initiation ofthis action, or, inthe alternative, ifgood cause has been shownto excuse an untimely initiation, has the Respondent alternatively demonstrated actual prejudice underthe defense oflaches? MOOT. It should be noted that ifthe FAA inth,is

**~as~** had proven good cause to excuse an untimely initiation, thenthe Respondent's



### alte~ate motionto dismiss onthe grounds oflaches wouldhave been considered. As correctly noted by bothparties, a Respondent thatraises a laches defense must demonstrate that it has sufferedprejudice rising to a level that itis "unable to adequately defend a civil penalty action." (55 Fed. Reg. 27556, (Jul. 3, 1990) (Discussion of Final Rule). Giventhe rulings inthis case, however, the respondent's alternate laches argument is rendered moot. 

### H. Conclusion Pursuantto 14 C.F.R. § 13.208, andhaving reviewed and considered the case file, all pleadingsand motions, all relevant caselaw, statutes, regulations, rules, and authority, andbeing fully advised; IT IS HEREBY ORDERED: '

**~d**... 1. Based onthe foregoing discussion, the FAA failed to initiate this action withinthe two year limitationperiod pursuantto 49 U.S.C. § 46301(d)(7)(C) and 14 C.P.R. § 13.208(d). 2. The FAAhas failed to prove good cause for initiating the action beyond the two year limitationperiod. 3. The Respondent's Motionto Dismiss, onthe grounds thatthe initiation ofthe FAA's action fell outsidethe two year statute oflimitations, is granted. 4. This Order shall be a final.order unless either party files a notice ofappeal within 10 days ofservice ofthis Order pursuantto 14 C.F.R. 

### § 13.233.

Attachment: Service List Page 18 of 18DocketNo. FAA-2014-0866 (Civil Penalty Action) SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY
Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWrightBuilding-Suite2W100027

Mr. Christopher Stevenson 

### Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel, ASO-7 SouthernRegion 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5208 FAX: 404-305-5223 Mr. Wayne E. Ferrell, Jr. 

### Respondent's Counsel Law Offices ofWayne E. Ferrell, Jr. P.O. Box 24448 405 Tombigbee St. Jackson, MS 39228-4448 TEL: 601-969-4700 FAX: 601-969-7514 Judge J.E. Sullivan 

### US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 ONE COPY

Mr. Matthew Couch, President Mississippi Air Express, LLC, 

### Respondent 233 ClarkFarms Rd. Madison, MS 39110

27 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-Suite2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC---430.