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 

Docket No. FAA-2016-4266 

PREMIER NAIL SOURCE, INC. 

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Case No. 2015S0700062 

Respondent 

ORDER SETTING DEADLINE 

FOR SUBMISSION OF SUPPLEMENTAL MATERIAL 

On September 26, 2016, the FAA filed both a Notice of Amendment of Complaint and an 

Amended Complaint. 

On November 10,2016, the FAA and the Respondent, Premier Nail Source, Inc., filed a 

Joint Motion to Amend Schedule ("Joint Motion"). Among other things, this Joint Motion 

requested that the discovery phase of litigation be deemed finished, and that the dates set for 

filing and arguing a summary judgment motion 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 Motion to Amend the Litigation 

Schedule was filed. Among other things, 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 Answer to 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 summary judgment, the content of 
its evidentiary submissions, and the arguments it had presented in its Motion regarding the 

calculation ofthe proposed civil penalty. 

As oftoday's date, February 17, 2017, the Respondent has failed to file an Answer to 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. Brief Discussion 

The FAA's Motion seeks complete dispositive relief on the merits of the alleged 

violations in the September 26, 2016 Amended Complaint. This is a request for a judgment that 

all violations alleged in the Complaint should be deemed proven, and that the FAA is entitled to 

judgment as a matter of law on the FAA's proposed, 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 of a hearing, when a party asserts that there are no genuine issues of material 

fact in dispute and the party is entitled to a decision as a matter of law. A motion for a decision 

on the merits prior to a testimonial hearing is analogous to a motion for summary judgment 

under Rule 56 of the Federal Rules of Civil Procedure. Horizon Air Industries, Inc., FAA Order 

,No. 96-24, n.3 (Aug. 13, 1996); Stebbins Aviation, Inc., Docket No. FAA-2000-7576-16. n.3 

(Aug.JO, 2004). 

Because summary judgment (if granted) eliminates the need for a trial, a party moving 

for summary judgment bears the initial burden of proof. This includes offering fact evidence in 

support of the summary judgment request that is capable of being deemed admissible at trial. 

Fed. R. Civ. P. 56(c)(1)(A); See also, Steven Baicker-McKee, et al., Federal Civil Rules 

Handbook, 1167-68, 1178, and 1195 (West Publishing 2016). 

In ruling on a motion for summary judgment, 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-moving party's favor. /d. at 1168 and 1171. Even if a non-moving party fails to contest 

or respond to a summary judgment motion, the reviewing court must exercise vigilance in 

ensuring that the movant has met the necessary standard of evidentiary proof. Baicker-McKee, 

et al., supra, at 1165-66 and 1194-95. The court may not weigh evidence, nor draw factual 

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inferences from proffered materials. ld. at 1169 .. Further, a movant's brief, or assertions in a 

legal memorandum, or made 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 select portions ofF AA Order 2150.38 (Mot., Att. B). In its 

Motion, the FAA also presented detailed argument and explanations regarding how it examined 

and considered a variety of facts and circumstances in the case, which ultimately led it to 

propose a total civil penalty of $57,500 for the alleged violations. During oral argument at the 

February 16, 2017 Motion Conference, the FAA also provided additional oral explanation 

regarding the number of violations alleged, how such violations should be categorized into five 

groupings for penalty assessment, and why it had calculated the proposed civil penalty within the 

upper third of the applicable penalty range. The FAA did not, however. provide any fact 

evidence to support its fact assessments and analysis regarding the calculation of the 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 of summary judgment. 

Pursuant to FAA Order 2150.38, Appendix C, the FAA's determination of a sanction is 

not the result of a mathematical calculation. FAA Order 2150.38, Appendix C, C-4(6)(b). 

Instead, it is the result of a subjective evaluation and weighting of multiple factors, id. at C4(6)(a)-(d)), which often involves joint review and consideration by FAA personnel of individual 

case circumstances. (/d. at C-4(7).) Essentially, the proposed $57,500 amount is based on a 

variety of facts 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 Order No. 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 to judgment as a matter of law. 

Pursuant to Rule 56( e), if a party fails to properly support an assertion of facts, the court 

may allow the party an opportunity to properly support or address the material. In the instant 

case, the FAA should be allowed to supplement its Motion to provide additional admi,ssible 

evidence (testimonial or otherwise) to support its fact arguments. This evidence should include 

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admissible evidence regarding how many regulatory violations the FAA is asserting have been 

proven; how the FAA has categorized those proven (or unopposed) violations in five categories 

for purposes of a penalty calculation; and how the 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 to judgment as a matter of law. 

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 being fully advised: 

IT IS HEREBY ORDERED: 

I. The FAA's November I 0, 2016 Motion for Summary Judgment is reserved. 

2. March 10, 2017 Deadline- Supplemental Material: On or before March I 0, 2107, the 

FAA may file Supplemental Material that provides evidence, capable of being 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 of Authority in support of its argument that 

it is entitled to summary judgment as a matter oflaw without such fact evidence. 

3. Any questions regarding other procedures contained in this Order should be directed to 

Ms. Kelly Ort, Judicial Assistant at the Office of Hearings (202-366-5121 ). 

Attachment: Service List 

Page 4 of 4 
Docket No. FAA-20 16-4266 

(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 Columbia Avenue 

College Park, GA 30337 

TEL: 404-305-5208 

FAX: 404-305-5223 

Mr. Daniel Kerzner 

Respondent's Representative 

Premier Nail Source, Inc. 

5454 W. Crenshaw Street 

Tampa, FL 33634 

TEL: 813-390-0700 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department ofTranspmiation 

ONE COPY 

1200 New Jersey Avenue, S.E. (E 11-31 0) 

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.