### SERVED: December 14,2016 U.S. DEPARTMENT OF TRANSPORTATION 

## DEPARTMENT OF OFFICE OF HEARINGS 

## TRANSPORTATION WASHINGTON, DC 

## l"l' u 

## DEC IS p 

## 2: 

## 31 In The Matter Of: ) ) ) ) ) 

## DOCKET OPERATIONS Docket No. FAA-2015-1319 WILLIAM A. CURTRIGHT Respondent Case No. 2014NM090046


### ORDER SETTING NEW TELEPHONE CONFERENCE FOR SUMMARYJUDGMENT ARGUMENTS, SETTING DEADLINE FOR SUPPLEMENTALMATERIALS,AND GRANTING/DENYING OTHERRELIEF OnNovember 18, 2016, an Order Reservingthe Respondent's Motion for Swnmary Judgment, Setting Deadlines, and Adding Agendato the Telephone Conference ("November 18, 2016 Order") was filed. 1A1nong otherthings, this Order expanded the Telephone Conference previously set on Thursday, December 8, 2016 (1:30 p.m. - 3:00 p.m. ET) to include various matters raised by the parties' summaryjudgtnentcross-n1otions. (Nov. 18, 2016 Order, 3

**~~** 2-4.) OnNovember22, 2016, theprose Respondent, Mr. William A. Curtright, filed the Respondents' [sic] Response and Objectionto Complainant'sMotion for Partial Decision (SummaryJudgment). OnDecember 6, 2016, the Respondent filed Respondents [sic] Motionto Compel. On December 8, 2016 (1 :30 p.m. ET), the parties convened for a Telephone Conference and discussed various matters raised by the parties' swnmaryjudgment materials, as well as othermatters pending in the proceeding.

1This November 18,2016 Order identifies the prior summaryjudgment and other motion filings by the parties, during the period ofOctober 31, 2016 through November 16, 2016.That same day, onDecember 8, 2016 (2:58p.m. ET), the FAAfiled withthis Courtby fax2 a complete copy (i.e., with all attachments included) ofthe Complainant'sMotion for Partial Decision (SummaryJudgn1ent) ("Cross-Motion"). This Ordercodifies and supplementsthe oral nllings issued duringthe December 8, 2016 Telephone Conference. Certain matters regarding the pending summaryjudgementmotion are also briefly highlighted herein. A. FAA's Oral Motion for Supplementation and Continuance OnNovember 16, 2016, the FAA filed by fax a courtesy copy ofa four (4) page document titled Complainant'sMotion for Partial Decision (Summary Judgment) ("CrossMotion"). The cover sheetto the FAA's faxed n1aterial stated, "The attachments are voluminous, so they will be in the U.S. Mail." (Nov. 16, 2016 FAA Fax Cover Sheet). OnNovember21,2016, the FAA filed by U.S. Mail a four (4) page duplicate ofits faxed Cross-Motion. There were no attachments included in the matiling. Neitherthe faxed courtesy copy ofthe FAA's Cross-Motion, nor the mailed tiling ofthe FAA's Cross-Motion, referenced any attachments or exhibits within the four-page docun1ent. At the beginning ofthe December 8, 2016 Telephone Conference, the FAA alerted this Court and Mr. Curtright that its Cross-Motion actually included approximately 39 pages of attachments. However, neitherthe CourtnorMr. Curtright hadreceived any attachments. The FAA orally moved to continue the sun1maryjudgment arguments to allow it time to supplement its cross-motion materialsto include the tnissing attachn1ents. The FAA's oral motion was granted overMr. Curtright's objection. B. Complaint and Proposed Civil Penalty On or about May 27, 2015, the FAA Hearing Docket filed with the U.S. Department of Transportation's Office ofHearings a copy ofthe FAA's unsigned Complaint (dated May 19,

2The FAA agreed during the December 8, 2016 Telephone Conference to serve the same materials on Mr. Curtright by both U.S. mail and certified mail. Page 2 of82015).3 According to the Complaint, the FAA had sent the Respondent a Letteron orabout July 1, 2014, askingthe Respondentto provide its maintenance records for inspection. (Compl. 2-3 §

**II~** 2.) Although the Respondent acknowledged receipt ofthe Letter, he did not immediately produce all the requested records. (Con1pl. 3

**§II~** 3.) On May 19, 2015, approximately eleven (11) months after sendingthe Letter, the FAA charged the Respondent with a violation of 14 C.P.R.§ 91.417(c). TheFAA'sMay 19,2015 Con1plaint asserted that the Respondent "failed to make all maintenance records required to be kept by this section [14 C.F.R. 

### § 91.417(c)] available for inspection" as required. (Compl. 3 

### § Ill

**~** 1.) The FAA requested a civil penalty in the amount of$11,000 for the violation, pursuant to 49 U.S.C. §46301(a) and (d). (Compl. 3 

### §

**III~** 

### 3.) C. Respondent's Motion for Summary Judgment On October26, 2016, theprose Respondent, Mr. William A. Curtright, filed multiple documents, includingthe Respondents' [sic] Motion and Memorandum for Summary Judgment ("Motion").4 In essence, the Respondent soughtdismissal as a n1atter oflaw ofthe entire Complaint, onthe grounds that he did produce the documents the FAA had requested. In support ofhis Motion, the Respondent sub1nitted twelve (12) Exhibits, identified as Exhibits 1through 12. The Respondent also proffered an additional three (3) Reply Exhibits, identified as Reply Exhibits 1through 3. The FAA did not object to the admissibility ofany ofthe Respondent's Exhibits.

3 On November; 17, 2015, the Respondent raised objections to the validity ofthe unsigned Complaint. (Show Cause Stmt. 1.) Seventeen (17) days later, on December4, 20I5, the FAA's Response to Show Cause was filed, which included a signed version ofthe May 19, 2015 Complaint. (FAA Resp. I, Attach.) On May 18, 2016 this Court found that the FAA's action to file a signed version ofits Complaint constituted a prompt corrective action, pursuant to Federal Rule ofCivil Procedure I I(a), since the signed Complaint was tiled prior to the December 15, 2015 deadline set by the Court for the FAA to tile a Response. (May 18, 2016 Order 7.) Thus, the FAA's Complaint is considered to be validly filed with the FAA Hearing Docket and served on the Respondent on May 19, 2015, even though it was unsigned at the time offiling and service. (!d.) 4 On October 26, 2016, the Respondent also filed the following: I) a [Proposed] Order Granting Respondents [sic] Motion for Summary Judgment; 2) Respondents [sic] Request for a Ruling on Motion and Memorandum for Summary Judgment; and 3) a [Proposed] Order Granting Respondents [sic] Request for a Ruling on Motion for Summary Judgment. Page 3 of8D. Undisputed Material Facts Underlying the Alleged Violation Duringthe December 8, 2016 Telephone Conference, the undisputed facts underlying the Respondent's motion for summaryjudgmentwere briefly reviewed, to help theparties prepare for oral argument scheduled onJanuary 25, 2017. Based onthe parties' submissions, it appeared that there was no genuine dispute as to most (ifnot all) ofthe tnaterial facts underlying the alleged violation of 14 C.P.R.§ 91.417(c). In brief, according to 14 C.P.R.§ 91.417(c), the owner oroperator ofan aircraft shall tnake all n1aintenance records required to be kept hy 14 C.F.R. 

### §91.417 available for inspection by the Administrator or any authorized representative ofthe National Transportation Safety Board. In the instant case,as briefly smnn1arized by this Court during the December 8, 2016 Conference,5 the parties agreed that Mr. Curtright was at all relevanttimes the owner ofa Piper Model PA-18135 civil aircraft, withregistration numberN949JP ("N949JP"). (Compl. 1

**~** 1; Ans. 1

**~** 1.) OnJuly 1, 2014, FAA InspectorMartin Conroy asked Mr. Curtright to provide by July 17, 2014 "aircraft and engine maintenance logbooks" ofN949JP (an1ong other documents) for the FAA'sreview. (Compl. 1-2

**~** 2; Ans. 1

**~ 2~**  Ex. 7 at 3.) Inspector Conroy's request for inspection ofMr. Curtright's aircraft tnaintenance logbooks was part ofthe FAA's Portland Flight Standards District Office official investigation ofan aircraft accident involving N949JP. (Compl. 1-2

**~** 2; Ans. 1

**~** 2; Ex. 7 at 3.) On July 7, 2014, Inspector Conroy renewed his request. asking Mr. Curtright for a date certain to '"inspect the aircraft weight/balance and airframe/engine maintenance logbooks." (Mot., Ex. 12 at 7.) That same day, on July 7, 2014, Mr. Curtrighttold Inspector Comoythatthe "[r]estofthe documents are north in Canada" (Mot., Ex. 12 at 7), and Mr. Curtright needed "sometin1e to getthem." (Jd.) Approximately, seven (7) weeks later, on August 28, 2014, Mr. Curtright advised Inspector Conroy viaen1ail that he would not be traveling to Canadafor the remainder ofthe year. (Id. at 8.)

5The facts proffered in the FAA's Cross-Motion were not discussed during the December 8, 2016 Telephone Conference, because none ofthe FAA's Cross-Motion attachments, which presumably proffered admissible facts, had been received by either the Court or Mr. Curtright. As noted earlier, during the December 8, 2016 Telephone Conference, the FAA was granted the opportunity to supplement its Cross-Motion and file its fact exhibits, and the summaryjudgment oral argument was reset to January 25, 2017. Page 4 of 8About one (1) week later, on Septen1ber 9, 2014, Mr. Curtright again inforn1ed the FAA thatthe aircraft and engine logbooks were at his residence in Canada. (Ex. 12 at 1.) Approxin1ately eleven (11) months later, on August 13,2015,the parties agreed that Mr. Curtright made the

**reco~ds** available to the FAA at Mr. Curtright'splace ofbusiness in Salen1, Oregon,6 at whichtime FAA Inspectors Curt Cowley and TerryJuran inspected the aircraft maintenance records ofN949JP. (Mot. 5; Ex. 2 at 2.) Thefollowing day, on August 14,2015, Inspector Cowleyreported that Mr. Curtright's "records were well organized and complete, back to the birth ofthe aircraft." (Mot., Ex.5 at 2.) E. Disputed Issue- Time for Regulatory Compliance According to the record herein, on May 6, 20 15, the FAA issued a Final Notice of Proposed Civil Penalty ("FNPCP"), charging Mr. Curtright with the violation of 14 C.F.R. § 91.417(c). (Compl. 1,

**~I.).** On May 11,2015, Mr. Curtright contested the FNPCP by submitting a Request for Hearing. (Id.) On May 19, 2015, the FAA filed its Cotnplaint. On August 13, 2015, the FAA inspected Mr. Curtright's aircraft records and found them to be satisfactory. As notedsupra, the FAA does not dispute that Mr. Curtright ultimately produced the records for inspection, on orabout August 13,2015. Rather, the FAA asserts that the undisputed fact timeline, which demonstrates a delay ofover one (1) year afterthe FAA'sJuly 1, 2014 initial request for production, isperse evidence ofthe charged records violation. In a recent supplemental pleading, the FAA also asserted that the alleged violation of 14 C.F.R.

**~** 19.417(c) "commenced on or about July 18, 2014."7 (Aug. 23,2016 FAA Statetnent, 1.) Mr. Curtright agreedthat as ofSeptember4, 2014, the FAAhad advised him, via a Letter ofInvestigation ("LOI"), that his failure to produce the requested "aircraft and engine maintenance logbooks" ofN949JP could be "contrary to the Federal Aviation Regulations." (Mot., Ex. 5 at 1.) The FAA's September4, 2014 LOI also advised Mr. Curtrightthat ifhe

6 In its Answer, the Respondent asserted that these ''lost" records were ultimately found and "presented'' to the FAA one month earlier via email on July 15, 2015. (Ans. I,,[2.) The FAA disputed this pa11icular fact assertion. 7The "violation date" ofJuly 18,2014 immediately follows the FAA's LOI demand deadline date ofJuly 17,2016. Page 5 of8"fail[ed] to supply the requested information" (Mot., Ex. 7 at 1 ), the FAA would "make detern1inations aboutpossible enforcement action" without seeking any further participation from Mr. Curtright. (Mot., Ex. 7 at 2.) However, in his Motion, Mr. Curtright asserts that the language of 14 C.F.R. 

### §91.417(c) does notrequire ownersto store maintenancerecords onthe aircraft, and instead only requires that the maintenance records "beproduced for inspection in a reasonable amount oftin1e when requested by the FAA, NTSB or law enforce1nent." (Mot., 5.) Mr. Curtright explained that some ofhis records, which the FAA had requested in July 2014, had been "lost" for a time. (Ans. 1,

**~~** 1and 3.) He also emphasizedthat these "lost"records were ultiinately found and "presented" to the FAA. (Ans. 1,

**~** 2.) Since it is undisputed that Mr. Curtright ultimately produced its aircraft maintenance logbooks for FAA inspection onAugust 13, 2015 (i.e., approximately three (3) n1onths after the FAA filed its Complaint), Mr. Curtright asserts that his actions were reasonable and in cmnpliance withthe regulatory requiren1ents. Thus, as a matter oflaw, he cannot be found to have committed a violation of 14 C.F.R. 

### §91.417(c). (Mot. 5; Ex. 2.) In essence, based onthe undisputed facts, the issue in dispute is a legal issue; specifically, whether the Respondent made the aircraft and engine logbooks "available for inspection" as required by 14 C.F.R. 

### §91.407(c), when he provided the logbooks thirteen (13) months after the FAA investigator requested production ofthe logbooks. Neitherthe Respondent nor the FAA specifically addressed this narrow legal issue in their materials. F. Conclusion Theparties are reminded that eachmotion for sutninaryjudg1nent is reviewed separately. Steven Baicker-McKee, et al., Federal Civil Rules Handbook, 1163-64 and 1171 (Th01nson Reuters 2016). In considering each n1otion, the Comi n1ay considernot only the requested

**relief~** but also consider grantingjudgmenton behalfofthe non-moving party, and/orprovide reliefon grounds different from whatthe parties requested. See, Federal Rule ofCivil Procedure 56(t)(1 ); and Steven Baicker-McKee, et al., 

### supra at 1197-1198.

Page 6 of8The parties should be given tin1e to suppletnent their n1aterials with legal authority in support oftheir summaryjudgtnentpositions. During the Decen1ber 8, 2016 Telephone Conference, Mr. Curtright orally provided the following authority: 

### In the Matter of General Aviation, FAA Order 98-18 (October 8, 1998). The parties were also provided a January 13, 2017 deadline to file any further legal authority, with the swnmaryjudgmentoral arguments continued to January 25, 2017. In addition, during the Decetnber 8, 2016 Telephone Conference, certain oral rulings onMr. Curtright'sNovember 19, 2016 Motionto Dismiss were issued and explained. Those rulings are also codified in this Order. Pursuant to 14 C.F.R. §§ 13.205, 13.218, and Rule 56, and afterreviewing all relevant caselaw, regulations, statutory authority, and being fully advised; IT IS HEREBY ORDERED: 1. The FAA's oral n1otion, to continue the sumn1aryjudgn1ent argun1ents and to allow it to supplement its cross-motion 1naterials to include missing attachments, is granted over the Respondent's objection. 2. The Respondent's multiplerequests for sumtnaryjudgmentand otherrelief, contained in theRespondent's October26, 2016 Motion, are reserved. 3. January 13, 2017 SupplementDeadline: On orbefore January 13, 2017, the parties may file supplemental material, specifically any legal authority and argument, in support oftheir positions regarding the Respondent's Motion for Su1nn1ary Judgment on the violation chargedunder 14 C.F.R. § 91.417(c). 4. January 

### 25, 2017 (1:30 p.m.-3:00p.m. ET): Motion Conference. Oral argun1ent will be heard on Wednesday, January 25, 2017 (1 :30 p.m.-3:00p.m. Eastern time) regarding boththe Respondent's Motion for Su1nn1ary Judgn1ent and the FAA's Cross-Motion. Shouldtime permit, final status ofdiscovery as well as potential hearing dates (inthe event the matters herein are not fully resolved by sun11naryjudgment) will also be addressed. To access the Court's Conference line, the parties shall dial 888-278-0296 and enter code 5851842.
Page 7 of 8

### 5. The Respondent's November 19, 2016 Motion to Dismiss, on the grounds that the "'actual date ofviolation" in this case is not identified, is denied. 6. The November 19, 2016 Motion to Dismiss, on the grounds that the FAA's complete copy ofits Enforcement Investigation Report has not been provided to the Respondent_ is denied. 7. 

### The Respondent's November 19, 2016 Motion to Disn1iss, on the grounds that the FAA has not fully explained to the Respondent the basis for its proposed $11,000 civil penalty, is denied. 8. The Respondent's November 19, 2016 Motion to Dismiss, on the grounds that the Respondent provided a majority ofits records on or before July 7, 

### 2014, is denied. 9. The Respondent's November 19, 2016 Motion to Dismiss, on the grounds that the FAA lacks evidence to prove the alleged violation, is denied. 10. The Respondent's November 19, 2016 Motion to Dismiss, on the grounds that he produced his aircraft records within a reasonable time, is reserved as part ofthe pending summaryjudgment proceeding. 11. 

### The Respondent's November 19, 2016 Motion to Dismiss, on the grounds that the FAA's proposed civil penalty of$11,000 violates the Eighth A1nendment prohibition against cruel and unusual punishn1ent, is denied. 12. For clarifications ofthis order or questions with regard to the procedures to be followed in this case, please contact Mr. Cody L. 

### Smith, Attorney-Advisor at the Of1-ice of Hearings (202-366-6941).

Attachn1ent: Service List .ludg 

### U.S.

Page 8 of 8DocketNo. FAA-2015-1319 (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-Suite2W10008

Mr. David F. Shayne 

### Complainant's Counsel Federal Aviation Administration Northwest Mountain Region, ANM-7 1601 Lind Avenue S.W. Renton, W A 98057 TEL: 425-227-1847 FAX: 425-227-1007 Dr. Willimn An1es Cwiright, DBA 

### Respondent P.O. Box 1350 Jefferson, OR 97352 TEL: 503-209-7388 FAX: 503-485-0812 Judge J.E. Sullivan 

### U.S. Administrative LawJudge U.S. Departn1ent ofTransportation Office ofHearings, M-20 1200NewJerseyAvenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 ONE COPY

8 Service was by U.S. Mail. For service in person orby 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.