U.S. DEPARTMENTOFTRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION Complainant 

# RECEIVED AUG 262014 

## HEARING DOCKET

Vs. Docket No. FAA-2013-1086 FAA Case No. 2011S0190181 PUERTO RICO POLICE DEPT. Respondent JudgeJ. E. Sullivan

SUPPLEMENTAL OPPOSITION TO MOTION TO DEEM ADMITTED Hereby appears Respondent, Puerto Rico Police Department, represented by the subscribing counsel, and states, alleges and requests as follows: I. RELEVANT FACTS Dated March 3, 2014 the Federal Aviation Administration (hereinafter referred as "FAA") sent Respondent by certified mail a letter regarding it's "Final Notice of Proposed Civil Penalty". Through said letter the FAA warned Respondent that, unless it mailed or personally delivered in writing, a request for a hearing in this matter, on or before fifteen (15) days after receipt of the Final Notice, an order Assessing Civil Penaltywill be issued and Respondent will not have further right to

a hearing. On March 15, 2014, and within the established term, Respondent sent by certified mail a letter requesting hearing. The FAA filed on March 19, 2014 the Complaint and on March 26, 2014 the case was assigned toJudge J.E. Sullivan. An OrderwasPage 2 of6

sent on May 16, 2014 Setting Rule 16 and scheduling the Litigation Conference for July 15, 2014. Later on, this Litigation Conference was re-scheduled for July 23, 2014. The parties held aconference call on July 16, 2014 to discuss theJointScheduling Discovery Plan. On this date the parties also discussed other pending matters, specifically the request by the FAA of certain documents related with the results to date of Respondent's internal adjudicative procedures against the concerning parties. At no time during this call did the FAA raise the issue thatthe Complaint had not been answered. The documents requested were sent tothe FAA on July, 22, 2014, with the intention of trying to reach a settlement agreement, as previously discussed by the parties. Nevertheless, on this same date, the FAA filed aMotion to Deem Admitted and immediately Respondent filed it's "Answerto Complaint and/orMotion to Dismiss and Opposition to Motion to Deem Admitted". On July 23, 2014 the scheduled conference took place, and after reviewing the motions submitted by the parties, Judge J.E. Sullivan granted Respondent an additional time to supplement it's Opposition to Motion Deem Admitted. In compliance with said order, Respondent hereby submits it's supplemental opposition. II. APPLICABLE LAW

The FederalAviation Administration has the discretion to grant a respondent leave tofile a response toacomplaint outoftimefor good cause. 14C.P.R. §13.209(£);

see also In the Matter of Cornwall, FAA Order No. 92-47 (July 22, 1992). Cases interpreting Federal Rule of Civil Procedure and cited in FAA Chief Counsel"sPage 3of6 opinions provide guidance on when itis appropriateto permit an outoftimefiling. In determining whether there is good case, the administrative law judge may considerthreefactors: (1) whythe defaulting partyfailed to submit an answer; (2) whether the party has a meritorious defense, and (3) whether granting leave to file a late response will prejudicethe other party. In the present case, Respondent satisfies allthree ofthese factors. As stated above, Respondent filedwithintime it's request for hearing. During this period Respondent has been in communication with Complainant regarding the issues ofthe present case in a good faith attempt to delimitate the controversies and reach a possible settlement. Respondent has been conducting an internal adjudicative procedure regardingthe present Complaint and has even sent the FAA the documents and letters regarding the results to date of said investigation. Respondent was under the impression that Complainant tacitly consented that Respondent could complete said internal investigation in order to responsibly

answerthecomplaint at hand ifasettlementcould notbe reached. As demonstrated in the Answer to the Complaint submitted on July 22, 2014, Respondent has meritorious defenses tothe Complaint. We hereby incorporate by reference the Answers to the Complaint and Affirmative Defenses there stated. The FAA has recognized that ""cases should be disposed of on the merits after a hearing, rather than summarily because of a procedural defect." In the Matter of Cornwall, FAA Order No. 92-47 at 7. These defenses, as well as the FAA"s claims, should be adjudicated rather than summarily dismissed due to an inadvertent procedural defect like Respondent"s failure totimelyfile an answer.Page 4of6 Finally, accepting Respondent's Answer to Complaint out of time does not prejudice the FAA in this matter. In determining whether prejudice exists, courts have identified the following risks to consider: loss of evidence, increased difficultiesofdiscovery, oran enhanced opportunityforfraud or collusion. FDIC v. Francisco Investment Corp., 873 F.2d 474,4 79. As stated above, here none of those risks exists as this matter is in its infancy. As a result, Complainant's ability to conduct discovery and obtain evidence is completely intact and the delay will have no impact on Complainant's ability to prosecute its case. On the contrary, during this time Respondent has sent Complainant documents requested by the latter. In the Matter of Safety Equipment and Sign Co. LTD, FAA Order No. 92-76 (December 21, 1992) the FAA decision maker found good cause for the late filing of an answer where the respondent's counsel's paralegal failed to properly receive and calendar the Complaint. The decision maker also recognized that "wherever possible, thecases should be disposed ofon the meritsafterahearing, ratherthan summarily because of a procedural defect." As stated in said case by the FAA decision maker, "[a]s a general rule, counsel are expected to know and meet procedural deadlines... [n]evertheless aclose examination ofall the circumstances of this case, viewed with aforgiving eye, leads to the conclusion that good cause is present. Ill. CONCLUSION Before and afterthe filing ofthe Complaintthe herein appearing party has been in communication with Complainant regarding the issues of the present case in aPage 5of6 good faith attempt to delimitate the controversies and try to reach a settlement. On July 22, 2014 Respondent received a motion filed by Complainant titled "Motion to Deem Admitted" and took immediate action upon receiving the same and in said date filed it's Answer to Complaint. As stated on the Answer to Complaint and for the reasons hereby indicated, the same was not filed with the intention of delaying the administrative proceedings before the Federal Aviation Administration, but because responsibly was not possible to file an answer to complaint until Respondent finished it's internal adjudicative procedures against theconcerning parties. In lieu of the above, and in the interest of fairness, Respondent hereby respectfully request the "Motion to Deem Admitted" be denied and Respondent's Answer to Complaint be accepted. Respectfully submitted this 22 dayofAugust 2014.



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# I )**"Na~i'~~'~ !~~u~~~hman** **~:l~** Attorney OfficeofLegal Affairs PO Box71200 San Juan, PR 00936 Phone 787-793-1234 ext. 3067, 2203 Fax. 787-781-7993 nmabdulrahn:J_<'jn@policia.pr"gov

CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing SUPPLEMENTAL OPPOSITION TO MOTION TO DEEM ADMITTED has been sent bythefollowing methods:Page 6of6

Originaland onecopyviacertified mailon August 22, 2014: FederalAviationAdministration 800 IndependenceAvenue SW WilburWright Building Suite 2W1000 Washington, DC 20591 One copyviacertified mailon August 22, 2014: Christopher R. Stevenson Attorney Officeofthe Regional Counsel Southern Region P.O. Box 20636 Atlanta, GA 30320 Fax: (404)-305-5223 HonorableJudgeJ.E. Sullivan OfficeofHearings, M-20 U.S. DepartmentofTransportation 1200 NewJerseyAvenue, S.E. (e11-310) Washington, de 20590 Fax: (202) 366-7536