### SERVED: February 21, 2017 

### U.S. DEPARTMENT OF 

## TRANSPORTATIONOEPARTMENT OF OFFICE OF HEARINGS 

## TRANSPORTATION

.WASHINGTON, DC 

## 28ll fEB 22 p 

## 12: 00

In The Matter Of: 

## DOCKET OPERATIONS DocketNo. FAA-2016-4266 PREMIERNAIL SOURCE, INC. ) ) ) ) ) Case No. 2015S0700062 Respondent

ORDER SETTING DEADLINE FOR SUBMISSION OF SUPPLEMENTAL MATERIAL On September26, 2016, the FAA filed both a Notice ofAmendment ofComplaint and an Amended Complaint. On November 10,2016,the FAA and the Respondent, PremierNail Source, Inc., filed a Joint Motion to Amend Schedule ("Joint Motion"). Among otherthings, this Joint Motion requested thatthe discovery phase oflitigation be deemed finished, and that the dates set for filing and arguing a summaryjudgmentmotion be accelerated. That same day, November 10, 2016, the FAA filed a Motion for Summary Judgment ("Motion"). On November 15, 2016, an Order Granting Joint Motionto Amend the Litigation Schedule was filed. Among otherthings, this November 15, 2016 Order set a December 15, 2016 deadline for the Respondent to file an Answer to the FAA's Motion, and set February 16, 2017 (1 :30 p.m. ET) for the parties to appear at a Telephone Motion Conference and present oral argument. On December 15,2016,the Respondent failed to file an Answerto the FAA's Motion. , On February 16, 2017, a Motion Conference was convened. The FAA appeared, but the Respondent did not. There was no explanation for the Respondent's absence. During this Motion Conference, the FAA discussed with the Court its request for summaryjudgment, the content ofits evidentiary submissions, and the arguments it had presented in its Motion regarding the calculation oftheproposed civil penalty. As oftoday'sdate, February 17, 2017, the Respondent has failed to file an Answerto the Amended Complaint, failed to file a Response to the FAA's Motion, and failed to provide any explanation for its absence from the February 16, 2017 Motion Conference. A. BriefDiscussion The FAA'sMotion seeks complete dispositive reliefon the merits ofthe alleged violations in the September26, 2016 Amended Complaint. This is a request for ajudgmentthat all violations alleged in the Complaint should be deemed proven, and that the FAA is entitled to judgmentas a matter oflaw on the FAA'sproposed, total civil penalty of$57,500. Pursuant to 14 C.F.R. 

### § 13.218(f)(5), a party may file a motion for a decision on the merits, in advance ofa hearing, when a party asserts that there are no genuine issues ofmaterial fact in dispute and the partyis entitled to a decision as a matter oflaw. A motion for a decision on the meritspriorto a testimonial hearing is analogousto a motion for summaryjudgment underRule 56 ofthe Federal Rules ofCivil Procedure. HorizonAirIndustries, Inc., FAA Order ,No. 96-24, n.3 (Aug. 13, 1996); StebbinsAviation, Inc., Docket No. FAA-2000-7576-16. n.3 (Aug.JO, 2004). Because summaryjudgment (ifgranted) eliminates the need for a trial, a party moving for summaryjudgment bears the initial burden ofproof. This includes offering fact evidence in support ofthe summaryjudgmentrequest that is capable ofbeing deemed admissible at trial. Fed. R. Civ. P. 56(c)(1)(A); See also, Steven Baicker-McKee, et al., Federal CivilRules Handbook, 1167-68, 1178, and 1195 (West Publishing 2016). In ruling on a motion for summaryjudgment, all proffered evidence must be construed in a light most favorable to the non-moving party, and all reasonable inferences must be drawn in the non-movingparty'sfavor. /d. at 1168 and 1171. Even ifa non-moving party fails to contest orrespond to a summaryjudgmentmotion, the reviewing court must exercise vigilance in ensuring that the movant has met the necessary standard ofevidentiary proof. Baicker-McKee, et al., supra, at 1165-66 and 1194-95. The court may not weigh evidence, nordraw factual Page 2 of4inferences from proffered materials. ld. at 1169

.. Further, a movant's brief, orassertions in a legal memorandum, ormade during oral arguments, may not be considered as a substitute for evidentiary proof. ld at 1178-79 and 1188. In the instant case, the FAA has proffered as evidence certain Respondent responses to discovery (Mot., Att. A), as well as selectportions ofF AA Order2150.38 (Mot., Att. B). In its Motion, the FAA also presented detailed argument and explanations regarding how it examined and considered a variety offacts and circumstances in the case, which ultimately led it to propose atotal civil penalty of$57,500 for the alleged violations. During oral argument at the February 16, 2017 MotionConference, the FAA also provided additional oral explanation regarding the numberofviolations alleged, how such violations should be categorized into five groupings for penalty assessment, and why it had calculated the proposed civil penalty within the upperthird ofthe applicable penalty range. The FAA did not, however. provide any fact evidence to support its factassessments and analysis regarding the calculation ofthe proposed $57,500 civil penalty amount. Instead, the FAA asserted that its arguments and explanations regarding the proposed civil penalty should be deemed sufficient for entry ofsummaryjudgment. Pursuant to FAA Order2150.38, Appendix C, the FAA's determination ofa sanction is not the result ofa mathematical calculation. FAA Order2150.38, Appendix C, C-4(6)(b). Instead, it is the result ofa subjective evaluation and weighting ofmultiple factors, id. at C4(6)(a)-(d)), which often involvesjointreview and consideration by FAA personnel ofindividual case circumstances. (/d. at C-4(7).) Essentially, the proposed $57,500 amount is based on a variety offacts that are subject to interpretive and discretionary analysis and decision-making. Pursuant to established federal practice and Rule 56(e), as well as FAA Administrator decisions, 

### see, e.g., National Power Corp., FAA OrderNo. 2016-3 (Sept. 30, 2016); FAA Order 2150.38, Appendix C, C-8(d)-(e), the FAA's fact arguments, without supportive evidence, are insufficient to support a finding that the FAA is entitled tojudgment as a matter oflaw. Pursuantto Rule 56(e), ifa party fails to properly support an assertion offacts, the court may allowtheparty an opportunityto properly support or address the material. In the instant case, the FAA should be allowed to supplementits Motion to provide additional admi,ssible evidence (testimonial or otherwise) to support its fact arguments. This evidence should include Page 3 of4admissible evidence regarding how many regulatory violations the FAA is asserting have been proven; howthe FAA has categorized those proven (or unopposed) violations in five categories for purposes ofa penalty calculation; and howthe FAA reviewed, considered, weighted, and assessed the facts in this case (as argued by the FAA in its Motion) in compliance with FAA guidelines to support its asse1iion that the total civil penalty of$57.500 is appropriate. and that the FAA is entitled tojudgment as a matteroflaw. 

### 8. Conclusion Pursuant to 14 C.F.R. 

### § 13.218(f)(5), and Rule 56(c) and (e), and after reviewing all pleadings and documents, as well as all relevant caselaw, decisions, regulations, statutory authority, and beingfully advised: 

### IT IS HEREBY ORDERED: I. The FAA'sNovember I0, 2016 Motion for Summary Judgment is reserved. 2. 

### March 10, 2017 Deadline- Supplemental Material: On orbefore March I0, 2107, the FAA may file Supplemental Material that provides evidence, capable ofbeing deemed admissible at the hearing, in supp011 ofthe arguments it has offered regarding the alleged violations and the facts utilized to calculate its the proposed $57,500 civil penalty. ln the alternative, the FAA may file a Memorandum ofAuthority in support ofits argument that it is entitled to summaryjudgment as a matter oflawwithout such fact evidence. 3. Any questions regarding otherprocedures contained in this Order should be directed to Ms. Kelly Ort, Judicial Assistant at the Office ofHearings (202-366-5121).

Attachment: Service List

Page 4 of4Docket No. FAA-2016-4266 (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 2W1000 1

Mr. Christopher R. Stevenson Complainant's Counsel Federal Aviation Administration Enforcement Division, Southern Team 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5208 FAX: 404-305-5223 Mr. Daniel Kerzner Respondent'sRepresentative PremierNail Source, Inc. 5454 W. Crenshaw Street Tampa, FL 33634 TEL: 813-390-0700 Judge J.E. Sullivan U.S. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTranspmiation ONE COPY

1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536

1 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 2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC--430.