In The Matter Of: 

SERVED: July 22, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2014-0866 

MISSISSIPPI AIR EXPRESS, 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. Pursuant to 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");

1 

2) on Ma1~h 11, 2015 the FAA filed the Administator's 

[sic] Response [to] Respondent's Motion to Dismiss ("Response"); and, 3) on March 24, 2015 

the Respondent filed Respondent's Rebuttal to Administrator's Response to Motion to Dismiss 

("Rebuttal"). 

On April 15, 2015, the FAA and the Respondent convened by telephone 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 on the issue of 

whether the FAA had complied with the two year time limitation period pursuant to 14 C.F .R. § 

13.208(d), and if not, 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. Pursuant to this April 17, 2015 Order, the parties filed the 

following materials: 1) on May 1, 2015, the FAA filed the Administator's [sic] Supplemental 

Response [to] Respondent's Motion to 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 not file 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 of the volume of materials, 

this discussion only highlights certain matters. 

A. Clarification ofF AA Party IdentitY 

The FAA's March 11, 2015 Response and May 1, 2015 Supplement both assert, in title 

and content, that the FAA Administrator is the complainant litigant in this proceeding. This is an 

error. In civil penalty cases litigated before the Office of Hearings, 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 behalfofthe FAA. 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 system but also to 

preserve the appearance of fairness. 1 Thus, once this Court issues an Initial Decision in a civil 

penalty case, the FAA Administrator-who has not been involved in the prosecution-is the first 

appeal tribunal if either the FAA or the Respondent files an appeal. See, 14 C.P.R. §§ 13.202, 

13.203, and 13.23 3. After the FAA Administrator issues an appellate decision, the next appellate 

review is provided by the 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. Did the FAA fail to timely initiate this action? 

2. If the 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 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 18 

,j .... ' .• 
3. If there was a timely initiation of this action, or, in the alternative, if good cause has 

been shown to excuse an untimely initiation, has the Respondent alternatively 

demonstrated prejudice under the defense of laches? 

C. Short Summary of Case Facts 

On or about January 30,2013, the FAA conducted an inspection of the Respondent's 

Antidrug and Alcohol Misuse Prevention Program. (Resp. 4.) Fourteen (14) months later, on 

March 26,2014, the FAA issued a Notice ofProposed Civil Penalty ("NPCP") to the 

Respondent. (Resp. 4; Resp., Exh. 1.) 

The FAA's March 26,2014 NPCP alleged that Mr. Matthew Couch was the 

Respondent's owner and pilot. (FAA Resp., Exh. 1, 2 ~ 4(b).) The FAA then alleged that 

between the dates of"January 1, 2012 and June 1, 2012" an individual named Dante Abb***2 

had performed "safety-sensitive functions while he was not in the required Sprit [sic] random 

drug and alcohol pool." (Resp., Exh. 1, 2 ~ 4(c)-(f).) The NPCP 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 of the SAP [sic]." (Resp., Exh. 1, 2 ~ 5.) Based on these 

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.) The NPCP recommended a penalty of$2,200 for the violations. (Resp., Exh. 1, 3.) 

One month later, on April25, 2014, the Respondent responded to the March 26, 2014 

NPCP by serving the FAA with a one (1) page Letter, identifying its newly hired counsel and 

2 The FAA's NPCP 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 conducts a pre-employment test 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 

least the following elements: (i) Display and distribution of informational material; (ii) Display and distribution of a 

community service hot-line telephone number for employee assistance; and (iii) Display and distribution of the 

employer's policy regarding drug use in the workplace. 

Page 3 of 16 
requesting a forty-five day extension oftime to respond. (FAA Supp., Exh. 5.) The FAA agreed 

to the request for additional time. (FAA Supp., 3.) 

Seven weeks later, on June 13,2014, the Respondent served the FAA with a three (3) 

page Letter, with multiple attachments. (FAA Supp., Exh. 6.) In this June 13, 2014 Letter, the 

Respondent explained that Matthew Couch, its owner and pilot, was its only employee, and he 

had taken and passed his alcohol and drug tests: 6 QFAA Supp., Exh. 6, 2 ~ 4.) The Respondent 

further explained that Dante Abb*** 7 was not, and had never been, one of its employees. (FAA 

Supp., Exh. 5, 2 ~ 3.) In addition, the Respondent pointed out that the 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 belief that your notice of proposed civil 

penalty should be addressed to Spirit Airlines· rather than Mississippi Air Express, LLC. 

(FAA Supp., Exh. 5, 2 ~ 5.) 

Approximately three (3) weeks later, on July 7, 2014, the FAA issued an Amended 

Notice of Proposed Civil Penalty ("ANPCP"). (FAA Supp., Exh. 2.) In this ANPCP, the FAA 

removed all references to Dante Abb**·*, rando.rn cifug testing, "Sprit Airlines", and the dates of 

January 1, 2012- June 1, 2012. (!d.) The FAA's 'ANPCP asserted new factual 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 in the original NPCP 

6 The Respondent also provided a copy ofMr. Couch's "February 1, 2013" [sic] drug and alcohol lab test results. 

While not material 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 of February 1, 2013 was the date the lab tests were "printed." (FAA Supp., Exh. 

5, Art. C.) An examination of the test results attached to the Respondent's June 13, 2014 Letter demonstrate that the 

date test sample results were dated over a year earlier, on January 23, 2012. (!d.) 

7 While the spelling of this 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. 

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'·' :!': ,,, ,,f "' 

(compare FAA Supp., Exh. 1, 3 ~ 1-3, with Exh. 2, 3 ~ 1-3), but based these charges on the new 

factual allegations. (FAA Supp., Exh. 2, 2 ~ 4(c)-(h)). 

Approximately four (4) months later, on November 18,2014, the FAA issued a Final 

Notice of Proposed Civil Penalty ("FNPCP"). (FAA Supp., 3; FAA Supp., Exh. 3.) Shortly 

thereafter, on November 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 of Party Arguments 

The Respondent is seeking dismissal based on three 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 of the Complaint, and its inferred request for summary judgment on the pleadings are 

not addressed in this Order because of mootness.) 

In response, the FAA argued (among other things): 1) the action was timely initiated; 2) 

the Respondent had sufficient notice of the allegations within the two year allotted period; and 3) 

the defense of laches did not apply since the Respondent had not demonstrated it suffered any 

actual prejudice. 9 

E. Two-Year Statute of Limitations Applicable 

In their supplemental materials, both parties agreed that a two year limitation period 

applied. However, because of multiple filings on this issue in recent cases, a brief discussion 

about the two year limitation period is included here. 

8 The defense oflaches was raised by inference in the Respondent's written arguments: "The [FAA] has delayed 

prosecution of this case to the detriment of [Respondent]; has prejudiced [Respondent] in the Defense of its 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 16 
When the FAA promulgated the Rules ofPractice in 1990, the only statute of limitations 

applicable to FAA civil penalty proceedings was found at 28 U.S.C. § 2462, which provided for 

a five (5) year limitations period: 

Except as otherwise provided by Act of Congress, an action, suit or proceeding 

for the enforcement of any civil fine, penalty, or forfeiture, pecuniary or 

otherwise, shall not be entertained unless commenced within five years from the 

date when the claim first accrued if, within the same period, the offender or the 

property is found within the United States in order that proper service may be 

made thereon. 

28 U.S.C. § 2462 (1990) (emphasis added). 

However, in 1990 the FAA examined this five-year statute of limitations when it 

discussed the adoption of the Rules of Practice. After consideration of public comments, the 

FAA adopted a shorter two (2) year limitations period. 55 Fed. Reg. 27548, 27553 (Jul. 3, 1990) 

(Discussion of Final Rule) (codified at 14 C.P.R. § 13.208(d). In adopting this self-imposed two 

(2) year limitations period, the FAA made clear that "the critical event" to commence an action 

"which must be taken by the agency" was to issue "a notice of proposed civil penalty within two 

years from the date ofthe alleged violations." ld. 

Two years later, in 1992, Congress incorporated the FAA's two (2) year limitations 

period into the organic statute by amending se~tion'~01(a)(3) ofthe Federal 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 

Administrative Assessment Act of 1992, Pub. L. 102-345, § 2(a) (Aug. 26, 1992) (codified at 49 

U.S.C. § 1471(a)(3)(E)(iii)) (revised and recodified at 49 U.S.C. § 46301(d)(7)(C) by Revision of 

Title 49, United States 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). In promulgating implementing regulations, an agency's interpretation of the 

organic statute is entitled to deference. Prior to the 1992 statutory enactment of the two year 

limitations period, the Administrator interpreted the term "commenced' contained in 28 U.S.C. § 

2462 to mean the issuance of a notice of proposed civil penalty by an agency attorney. See 55 

Fed. Reg. 27548,27552 (Discussion of Final Rule) .. ,When Congress chose to codify the FAA's i...' . ·;'· ~~,'..., (~'-

'/' I Page 6 of 18 
,. 

two (2) year limitations period in 1992, it did so without reference to the FAA's interpretation of 

"commenced'' in the statute. 10 Nevertheless, since 1992, the Administrator has similarly 

interpreted the word "initiated' in 49 U.S. C. § 46301(d)(7)(C) to mean the issuance of a notice 

of proposed civil penalty. See Royal Avionics Systems, Inc., FAA Order No.2002-6 at 7-8 (Apr. 

16, 2002); High Exposure, Inc., FAA Order No. 2003-7 at 8 (Sept. 12, 2003). 

Based on the foregoing, the applicable statute of limitations for this proceeding is 49 

U.S.C. § 46301(d)(7)(C), not 28 U.S.C. § 2462. 11 The two (2) year statute oflimitations runs 

from the date of the alleged violation to the date of the Notice 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 

FAA to initiate a civil penalty proceeding no later than two years after the violation occurred 

unless the FAA can show good cause for any delay beyond two years. ·. ,\ 

F. Defense of Laches in Civil Penalty Cases 

The defense of laches is an equitable defense. Laches is not generally available as a 

defense against the United States when it is acting in its sovereign capacity to enforce a public 

right or protect the public interest. 13 See, e.g., St. John's General Hospital, 87 5 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 of verb between 49 U.S.C. § 4630l(d)(7)(C) and the subsequently 

adopted 28 U.S.C. § 2462 does not indicate congressional disapproval of the FAA's interpretation. 

11 Based on the language of 49 U.S.C. § 4630l(d)(7)(C), the two-year statute of limitations only applies to the 

administrative imposition of civil penalties. Section 2462 of Title 28 still applies to FAA civil penalty actions for 

which the U.S. district courts have exclusive jurisdiction 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 of a limitations period 

applicable to any case for which the agency does not have general assessment authority is outside the scope of this 

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 of a 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 of limitations. 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 a plaintiff brings a federal statutory claim seeking legal relief, 

laches cannot bar that 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 16 
the FAA adopted the Rules of Practice in 1990, the FAA decided that a limited laches defense in 

civil penalty proceedings should be allowed: 

While not unmindful of this [laches] case law, considerations of due process, and 

a fair construction of section 555 of the Administrative Procedure Act, lead the 

agency to allow for a showing of actual 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 

that the FAA utilize a much shorter, six-month time period to initiate safety enforcement actions 

with the filing of a complaint. 55 Fed. Reg. 27548, 27555 (Jul. 3, 1990) (Discussion of Final 

Rule). The FAA declined to adopt a six-month time limit for initiating an action, and also 

declined to utilize the two year limitations period 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 

of the action, or a portion of the 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 become unavailable 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 of actual prejudice and 

petition ... to dismiss ... on the basis ofsuch prejudice. 

Id. at 27556 (emphasis added). 

In its 1990 discussion of when the defense of laches could be raised, the FAA did not 

distinguish between actions brought by the FAA within the two year limitations period versus 

outside the 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 within the two year 

limitations period, or in those 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 complaint to 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.) It would also be 

detrimental to the Respondent, if the 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 of laches, if raised by a 

respondent, requires the respondent to make a showing of "actual prejudice" to the defense of its 

case.

16 55 Fed. Reg. 27548, 27553-27556 (Jul. 3, 1990) (Discussion of Final Rule); John J. 

Carroll, FAA Order 90-21 (Aug. 16, 1990) at 3 (the respondent must show "undue 

prejudice")( citing Armco, Inc. v. Armco Burglar Alarm Co., Inc., 693 F.2d 1155, 1161 (5th Cir. 

1982) and Gull Airborne Instruments, Inc. v. Weinberger, 694 F.2d 838, 843 (D.C. Cir. 1982)). 

G. Discussion 

As discussed above, and pursuant to 14 C.F.R. § 13.16(f), a civil penalty case is initiated 

by the FAA with the issuance of a NPCP. Although the F ARs do not include the NPCP in its 

definition of a "pleading", 17 the NPCP ser\res as the, ;first official notice to the respondent of 

alleged regulatory violations. Pursuant io 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 of the charges" (i.e., the basis of the action or nature of 

objectionable conduct), 3) the "amount of the proposed civil penalty" (i.e., the relief requested), 

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, which requires that a clai.m for 

relief state: 1) the court's grounds for jurisdiction; 2) a "short and plain" statement of the claim; 

and 3) a "demand for relief." FRCP 8(a). 

To ensure fair notice, the FAA has asserted that the specificity contained in the NPCP is 

as important as the specificity in any subsequently issued complaint. 55 Fed. Reg. 27560 (Jul. 3, 

1990) (Discussion of Final Rule )("as a matter of practice 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 of investigation ("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, it did "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 of Final 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 amendment to those documents. 

18 In general, a "pleading" in federal civil litigation is a document that states "a claim for relief." FRCP 8(a). 

Page 9 of 16 
The FAA's internal guidance to agency personnel also emphasizes the need for specificity in the 

NPCP. The NPCP must set "forth the facts alleged, the regulations violated, and the civil 

penalty proposed" and the facts must be "set forth in numbered paragraphs and in sufficient 

detail that the alleged violator has notice of the charges." FAA Order 2150.3B, at 6-19 

(emphasis added). ,,, 

The purpose for such specific notice in the NPCP (and in federal civil pleading) is to 

provide the respondent clear and fair notice of the moving party's allegations and an opportunity 

to answer. E.g., Steven Baicker-McKee et al., Federal Civil Rules Handbook 345 (West 

Publishing 2012) ("Although encouraging brevity, t}Je federal pleading duty is far from trivial; 

the pleading must still contain "enough" to give defendants fair notice of a complaint's claims 

and the grounds for them.") 

In civil penalty cases, the respondent must answer the NPCP within thirty (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 the NPCP (14 C.P.R.§ 13.16(t)(2)(i)); consult with or hire 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 of the 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 with the FAA ( 14 C.F .R. § 13 .16( t)(2)(iii) ); or request 

further administrative review (14 C.P.R.§ 13.16(t)(3)). Ifthe respondent files a timely response, 

as provided in 14 C.P.R. § 13.16(t), additional time may also be agreed to and utilized by the 

parties to complete investigations and discussions. 

1. Did the FAA fail to timely initiate this action? YES. 

In the 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 on that inspection, the FAA issued a NPCP one year 

and two months later, on March 26, 2014, alleging .t?at the Respondent had committed random 

ti "1 . ( ,. 

Page 10 of 18 
-'.)· 

drug testing violations from January 1, 2012 through June 30,2012. 19 (Resp. 4; Resp., Exh. 1, 2 

~ 4.) The NPCP also asserted that "Sprit" Airlines had failed to follow the recommendations of 

"the SAP" in the year 2011. (Resp., Exh. 1, 2 ~ 5.) 

a) NPCP Significant Factual Errors- Insufficient Notice 

The FAA argued that the March 26, 2014 NPCP, which had been issued within the two 

year statute of limitations (for violations ultimately alleged to have occurred on, about, or prior 

to June 20, 2012), had been sufficient notice to the Respondent of the 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 had revealed 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*** 

performed the duties of a flight crew member when he operated approximately 

one hundred sixty-six (166) flights. 

e. On or about June 1, 2012, Dante Abb*** name appeared on Spirit's random 

drug testing pool list. 

f. Between the dates of January 1, 2012 and June 1, 2012, Dante Abb*** 

performed the 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 of random 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 of the 

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 should be noted that the FAA's NPCP did not provide any information to the Respondent about the date of the 

FAA inspection or who had conducted it. In addition, no specific information about the inspection was contained in 

subsequently issued pleadings (i.e., the ANPCP, FNPCP, or the Complaint) even though each document referenced 

an FAA investigation as the source of discovery for the regulatory violations. There was also a brief reference in the 

NPCP regarding a "report of investigation" that also remained undescribed. (FAA Supp., Exh. 1, 1.) 

Page 11 of 16 
4. Between on or about [sic] December 6, 2011 and on or about October 16, 

2011, Sprit [sic] Airlines failed to follow the recommendations of the 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 prevention programs." 

(!d. at 2-3.) It charged the Respondent with three regulatory violations ofthe FAA's Drug and 

Alcohol Testing Requirements, 14 C.P.R. Part 120, Subpart E, and proposed a civil penalty of 

$2,200 for those violations. (Resp., Exh. 1.) 

Upon receipt of the NPCP, the Respondent immediately consulted with and hired 

counsel. On April25, 2014, the Respondent answered the NPCP within the 30 day window, and 

requested an additional 45 days to investigate. The FAA agreed to the request. Seven weeks 

later, on June 13, 2014,'the Respondent filed a three (3) page Letter, with multiple attachments, 

explaining that it was 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 suggested that the FAA had n;istakenly charged it with another business's '•'1._1, l:'l\·':' 

possible violations. 

The FAA did not disagree that the fact allegations in the NPCP were erroneous, or that 

they pertained to a different business. (Resp., 2.) The FAA argued, however, that the March 26, 

2014 NPCP should be deemed sufficient notification of the allegations against the 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 by the Respondent; 4) the name 

of the Respondent's owner and pilot; 6) the regulations the Respondent was required to 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 ofthe FAA's allegations and the factual grounds 

supporting them, so that the Respondent can promptly investigate both the alleged facts and the 

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 have been a reference to a Substance Abuse Professional. 

Page 12 of 18 
law, and preserve evidence ifneeded.22 Among other things, the NPCP is supposed to be 

specific enough to give a respondent reliable and relevant information about what it should be 

investigating, or taking steps to change, if needed. Telling the Respondent its own business name 

and certificate number, or the names of its own aircraft and employees, or a list of regulations 

allegedly violated, does not provide sufficient factual data or fair notice of the FAA's inspection 

results or accusations. The NPCP in this case did not provide the essential factual grounds to 

support its charges of regulatory misconduct. Thus, the factually erroneous NPCP was 

insufficient. It did not provide timely notice to the Respondent of essential facts and information 

that supported the FAA's regulatory allegations. 

b) ANPCP was not issued within the two year limitation period 

·;\, ''· 

It was undisputed that the subsequently issued July 7, 2014 ANPCP was the first notice 

the Respondent had of any of the actual facts the FAA was specifically alleging, including 

allegations of new violation 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 "prior to" June 20, 2012, in regard to Mr. Couch's 

hiring date. (Jd., 3 ~~ 4(g)). Based on the June 20, 2012 and "prior to" date allegations in the 

ANPCP, the two year statute of limitations 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 of investigation ("LOI") typically precedes the NPCP, and serves to notify the respondent 

that evidence needs to be collected and preserved, it does not replace the need for timely initiation of the NPCP. 

While not dispositive, it should be noted that neither party in this case offered that any LOI was ever issued, or that 

if it was issued, that it contained accurate factual information. 

23 It should 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 of January 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 did not relate back in time to the NPCP 's issuance date 

The FAA argued, however, that it had accurately given notice to the Respondent of the 

three regulations it alleged had been violated, in both the NPCP and in the ANPCP.24 As a 

result, the Respondent had "sufficient" and timely notice of the regulatory allegations when the 

FAA issued its March 26,2014 NPCP within the two year limitation time. (6/17/15 Tr. 11:4-

12:1.) 

This part of the FAA's arguments appeared to infer that the ANPCP should be deemed to 

"relate back" to the time the NPCP was issued. In federal civil litigation, the "relation back" 

doctrine enables a plaintiff to correct a pleading error and/or add a new claim, after the statutory 

period has expired, if the original notice has suffici'ently notified the respondent of the charges. 

54 C.J.S. Limitation of Actions§ 328 (2015). 

(!d.) 

The rationale for relation back is that a party who has been notified of litigation 

concerning a particular occurrence has been giveri all the notice that statutes of 

limitations were intended to provide. 

There is no FAA rule of practice that specifically addresses a "relation back" argument. 

In such circumstances, the Federal Rules of Civil Procedure may be used as guidance. 

Rule 15(c) permits an amended pleading to relate back to the date of the original pleading 

in any of three circumstances: (1) when the statute of limitations governing the cause of 

action permits relation back; (2) when the claim or defense in the amended pleading arose 

from the same transaction or occurrence as that set forth in the original pleading; or (3) 

when a new party is joined and it is not unfair .... 

Baicker-McKee et al., supra, at 560. .. · u. . (·.n 

In the instant case, the firstcircumstance is inapplicable, because 49 U.S.C. § 

46301(d)(7)(C) does not address relation back. The third 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" argument rises from the second circumstance- that the 

original pleading in the NPCP is sufficient to allow an amendment after the time limitation 

period has lapsed. However, it is well-established that charging the same regulatory violations 

in the NPCP and ANPCP is not dispositive in determining whether an amended pleading may 

relate back. The "standard" for granting relation back amendments "is measured by the facts 

plead .... not ... on the legal theory." Baicker-McKee et al., supra, at 561; See US. ex rel. 

Miller v. Bill Harbert Intern. Canst. Inc., 608 F. 3d 871,881 (D.C. Cir. 2010) (relation back is 

improper when amendment seeks to fault defendants for conduct different from that factually 

alleged in the original complaint). 

[T]he relation back of the amendments of pleadings 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 earlier NPCP, the July 7, 2014 ANPCP generally alleged the Respondent was 

required to comply with the FAA's regulations "for its antidrug and alcohol misuse prevention 

programs." (FAA Supp. Exh. 2, 1 1 ~ 2.) But the ANPCP then replaced all the previously 

alleged factual charges. 25 It completely removed allegations regarding Dante Abb* * *, Sprit 

Airlines, random drug test violations, and SAP recommendations, and inserted both new 

violation dates and newly alleged facts?6 The ANPCP then re-proposed the same penalty of 

$2,200 for the violations. (Resp., Exh. 2, 3.) Thus, the ANPCP did not assert "a claim that arose 

out of the conduct, transaction, or occurrence set out-or attempted to be set out"-in the NPCP. 

Fed. R. Civ. P. 15(c)(1)(B). It was not an amended notice that "expanded facts" that had already 

been alleged in the NPCP. Instead, the ANPCP was a new notice that cannot be deemed to 

"relate back" to the NPCP. :~ )1,' >tt 

25 It is undisputed that multiple new facts alleged in the ANPCP were also erroneous, and irrelevant to the charged 

violations. (ANPCP, 2 ~ 4 (e)). This was discussed briefly during oral argument and will not be further addressed 

here. (4/15/15 Tr. 11:17-12:19). 

26 For example, even though the ANPCP continued to assert that the Respondent had committed the previously 

identified regulatory violations, it did not continue to allege that the Respondent had 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 that the 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 16 
2. If the 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 committed to initiating civil penalty actions within 

the two year time limitations period. It adopted this statutory time period to balance three 

primary interests: "(1) a respondent's iriterests in tihlely notice and adjudication;" (2) the FAA's 

interest "in having sufficient time to initiate a case on pain of dismissal or forfeit"; and "(3) the 

public interest in promoting compliance with, and initiating enforcement action if necessary ... " 

55 Fed. Reg. 27548, 27555 (Jul. 3, 1990) (Discussion of Final Rule) (emphasis added) 

The FAA also adopted a "good cause" standard that, "on a case-by-case basis," might 

excuse the issuance of an untimely NPCP after the two year time period. !d. at 27553. The FAA 

explained that this good cause exception was based on the "first provision in 49 CPR 

821.33(a)(1), the NTSB's articulation of an exception to its stale complaint rule in certificate 

actions." (!d.) 

The FAA is adopting a "good cause" standard to account for delays attributable to the 

agency's inability to issue a notice within the 2-year period because the agency was not, 

or could not be reasonably expected to be aware of a possible violation. This exception is 

particularly critical where violations are discovered only as a result of an 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 within the two year period. The FAA did not allege that it had 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 

that the FAA based the factual allegations in the ANPCP on facts discovered during its January 

30, 2013 investigation ofthe Respondent's business. 

The FAA argued, however, that good cause existed to excuse the untimeliness of the 

ANPCP because the Respondent had requested an extension of time after receipt of the NPCP, 

which had delayed the proceeding. (FAA Supp. 3; BAA Supp., Exh. 5.) '• . ';''" : :~h 

Page 16 of 18 
For the Respondent to argue and request this Complaint be dismissed, seems unjust as the 

delay was caused by him. The Administator [sic] graciously allowed an extension of 

time and amended its [NPCP] shortly thereafter. 

(FAA. Supp. 3-4.) 

In essence, this argument asserts that the FAA could not act during any agreed extension 

oftime requested by the Respondent. In addition, the FAA argued that it took reasonably prompt 

action to issue the ANPCP after the Responden,t notified it of all the NPCP omissions and errors. 

(FAA Supp. 3; FAA Supp. Exh. 2.) The FAA also asserted that the Respondent had failed to 

prove any prejudice by the lack of timely filing. 

The FAA's arguments are not persuasive. First, it appeared undisputed that the FAA's 

January 30, 2013 inspection of the Respondent's. Arttidrug and Alcohol Misuse Prevention 

Program had discovered all the needed fact information that was contained in the ANPCP. 

(Resp. 4.) Thus, there was no factual or legal support for the FAA's assertion that it could not 

act to correct its own errors in the NPCP at any time throughout the statutory two year period, 

much less during the seven weeks utilized by the Respondent (by agreement) to investigate and 

respond to the erroneous NPCP factual allegations. Second, even if the information the 

Respondent had provided on June 13, 2013 had been new to the FAA, and had served to further 

inform the FAA about its own allegations, there was no evidence presented to show why the 

FAA could not have issued a timely ANPCP prior to the lapsing of the two year period (i.e., on 

June 19, 2014). 

Third and last, it should be pointed out that the Respondent is not required to show 

prejudice when it moves to dismiss for untimely initiation of a civil penalty proceeding. Pursuant 

to 14 C.F.R. § 13.208(d), a respondent need only shoyv that the FAA issued the NPCP more than 

;·; ' l.i ' ... {-.j', 

two years after the alleged violation(s) occurred. Once it is proven that the FAA failed to timely 

initiate the action within the two year time period, the burden shifts to the FAA to either prove 

good cause for the delay (14 C.F.R. § 13.208(d)(1)), or suffer "the pain of dismissal or forfeit." 

55 Fed. Reg. 27548,27555 (Jul. 3, 1990) (Discussion ofFinal Rule)( emphasis added); 14 C.F.R. 

§ 13.208(d)(2). In this case, the FAA has failed to prove good cause for the delay, and must 

suffer the "pain of dismissal." 

Page 17 of 16 
3. If there was a timely initiation of this action, or, in the alternative, if good cause 

has been shown to excuse an untimely initiation, has the Respondent alternatively 

demonstrated actual prejudice under the defense of laches? MOOT. 

It should be noted that if the FAA in th,is ~as~ had proven good cause to excuse an 

untimely initiation, then the Respondent's alte~ate motion to dismiss on the grounds of laches 

would have been considered. As correctly noted by both parties, a Respondent that raises a 

laches defense must demonstrate that it has suffered prejudice rising to a level that it is "unable 

to adequately defend a civil penalty action." (55 Fed. Reg. 27556, (Jul. 3, 1990) (Discussion of 

Final Rule). Given the rulings in this case, however, the respondent's alternate laches argument 

is rendered moot. 

H. Conclusion 

Pursuant to 14 C.F.R. § 13.208, and having reviewed and considered the case file, all 

pleadings and motions, all relevant caselaw, statutes, regulations, rules, and authority, and being 

fully advised; 

IT IS HEREBY ORDERED: ' 

~d ... 

1. Based on the foregoing discussion, the FAA failed to initiate this action within the 

two year limitation period pursuant to 49 U.S.C. § 46301(d)(7)(C) and 14 C.P.R. § 

13.208(d). 

2. The FAA has failed to prove good cause for initiating the action beyond the two year 

limitation period. 

3. The Respondent's Motion to Dismiss, on the grounds that the initiation ofthe FAA's 

action fell outside the two year statute of limitations, is granted. 

4. This Order shall be a final.order unless either party files a notice of appeal within 10 

days of service of this Order pursuant to 14 C.F .R. § 13.23 3. 

Attachment: Service List 

Page 18 of 18 
Docket No. FAA-2014-0866 

(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 2W100027 

Mr. Christopher Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, ASO-7 

Southern Region 

1701 Columbia A venue 

College Park, GA 30337 

TEL: 404-305-5208 

FAX: 404-305-5223 

Mr. Wayne E. Ferrell, Jr. 

Respondent's Counsel 

Law Offices of Wayne E. Ferrell, Jr. 

P.O. Box 24448 

405 Tombigbee St. 

Jackson, MS 39228-4448 

TEL: 601-969-4 700 

FAX: 601-969-7514 

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 

ONE COPY 

Mr. Matthew Couch, President 

Mississippi Air Express, LLC, 

Respondent 

233 Clark Farms 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-Suite 2Wl000, Washington, DC 20591; 

Attention: Hearing Docket Clerk, AGC---430.