In The Matter Of: 

## SERVED: February 23, 2016 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2015-0206 NORTHEASTERN AVIATION CORPORATION ) ) ) ) ) ) Case No. 2011EA110045 Respondent ORDERCLARIFYINGFAA PARTYAND THE COURT'S JURISDICTION,

AND DIRECTING PROCEDURAL COMPLIANCE INFUTURE FILINGS On April 15, 2015 and June 18, 2015, this Court issued Orders 1thatprovided both parties withthe Court's correctjurisdictional caption: U.S. Department ofTransportation Office ofHearings

Washington, DC However, the record demonstrates thatthe FAA has filed multiple pleadings and motions, and in some ofthesematerials has mistakenly identified the FAA Administrator as the complainant litigant inthis case, and/or the FAA as part ofthis Court. For example, onJune 30, 2015 the FAA filed anAdministrator's More Specific Statement ofNumber ofViolations, in which it asserted that the FAA Administrator was the complainant litigant in this proceeding. Subsequently, on December 3, 2015, the FAA also filed an Amended Notice ofAppearance, in which it asserted in thejurisdictional caption that this Court was an employee ofthe FAA. 

### A. Clarification Regardingthe Court andJurisdiction The FAA's written materials that mistakenly identifythe FAA Administrator as the complainant litigant in this case, and/or the FAA as part ofthis Court are incorrect. Itis an error

1April15, 2015 Order Setting a Rule 16 Litigation Scheduling Conference, and Directing the Parties to Confer and File a Rule 26(f) Proposed Discovery Plan; and June 18, 2015 Order Setting Litigation Dates and Procedures.thatkeeps occurring inFAA civil penalty cases, despite havingbeen previously addressed by this Court? The error is not insignificant, and should be correctedbythe FAA in all future filings. Pursuant to 14 C.F.R. §§ 13.16(h)-(i), and the FAA's Rules ofPractice,3 whenthe Respondent requests a hearing in FAA civil penalty proceedings, the FAArefers the case to the Office ofHearings for independent adjudicationpursuant to 14 C.F.R. § 13.202 and 5 U.S.C. § 554. The Office ofHearings is part ofOffice ofthe Secretary for the U.S. Department of Transportation. Itis not an office within the FAA, or under the FAA's control or supervision. In addition, upon referral ofthe case to the Office ofHearings, the FAA Administrator is separated from the proceedings. Instead, the FAA's Regional Counsel or other designated agency attorney is the FAA's complainant litigant, and prosecutes the civil action on behalfofthe FAA. See, 14 C.F.R. §§ 13.202 and 13.203. Thereafter, throughout the litigationbefore this Court, the FAA Administrator is neither the complainant litigant inthe proceedings, nor does he, or any other FAA employee, serve as the Court in any capacity. 14 C.F.R. § 13.203. [A]dministrative lawjudges

...are completely independent ofthe ChiefCounsel, and in fact, independent ofthe FAA. 55 Fed. Reg. 27548, 27552 (Jul. 3, 1990) (Discussion afFinal Rule). The FAAAdministrator has explainedthat referring the case to an independent, U.S. Administrative LawJudge, who is not an employee ofthe FAA, promotes the FAA's wellestablished public goal offair and impartial decision-making: [U]der the rules ofpractice, the adjudication function is performed initially by administrative law judgesemployed bythe Office ofthe Secretary ofthe Department of Transportation

.... Under the rule's separation requirements

...[the Judges are not] subject to the [FAA's] control or supervision. 55 Fed. Reg. 27548, 27551 (Jul. 3, 1990) (Discussion afFinal Rule).

2See, e.g., Birmingham Flight Center, Inc., Dkt: FAA-20 14-0867, Order Clarifying FAA Party and the Court's Jurisdiction, and Directing Procedural Compliance in Future Filings (Feb. 27, 2016); Compass Systems & Sales, Inc., Dkt: FAA-2015-2440, Order Clarifying Court Jurisdiction and Directing Procedural Compliance in Future Filings (Feb. 18, 2016); JetLogistics, Inc., Dkt. FAA-2013-0290, Order Granting Protective Reliefand Directing Procedural Compliance (May 29, 2014). 3 The Rules ofPractice for this proceeding are set forth in Part 13, Subpart G, ofthe Federal Aviation Regulations (14 C.F.R. Part 13). Page 2 of4This bright line separation is necessary to maintain not only a fair adjudication systembut also to preserve the appearance offairness.4 Italso promotes confidence that any subsequent appellate involvement bythe FAA Administrator will be thoughtful and fair. Thus, the FAA regulations provide that after a U.S. Administrative LawJudge fully and independently adjudicates the civil penalty proceeding and issues an Initial Decision, the FAA Administrator-who has notbeen involved in any way as a litigant in the adjudication-may then serve as the first appeal tribunal ifeitherthe FAA Regional Counsel or the Respondent files an appeal from the Judge's Decision. See, 14 C.F.R. §§ 13.202, 13.203, and 13.233. This procedural separation ofthe FAA Administrator from the adjudication presumptively allows the parties to maintain confidence in any appellate review by the FAA Administrator. See, 14 C.F.R. §§ 13.233, 13.234, & 13.235. Then, once the FAA Administrator issues an appellate decision, eitherparty may pursue any further appeal ofissues withthe U.S. Court ofAppeals. 14 C.P.R. §13.235. In short, the FAAinthis case (and any otherFAA civil penalty case referred to this Court) should stop identifying the FAA Administrator as eitherthe Complainant or as the Court inthese proceedings. This Court'sjurisdictional caption should be utilized inthis case, and in all its future filings. This allows the respondent litigants (and members ofthe public) to be confident that Court is independent, and that the FAA Administrator and his regional counsel remain committed to an administrative adjudication system that is fair and impartial. B. Conclusion Pursuantto 14 C.F.R. § 13.205, and after reviewing all relevant caselaw, regulation, statutory authority, and being fully advised;

4 See, 55 Fed. Reg. 27548, 27551 (Jul. 3, 1990) (Discussion ofFinal 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 3 of4IT IS HEREBY ORDERED: 1. The FAA shall stop identifying the FAA Administrator as the Complainant or as part of the Court inthis action.
2. The FAA shall also utilize the properjurisdictional caption for all future filings (see, e.g., thejurisdiction caption on page 1ofthis Order).

Attachment: Service List

Page 4 of4DocketNo. FAA-2015-0206 (Civil Penalty Action) 

### SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 1

Ms. Camille J. Castillo Complainant's Counsel Enforcement Division, Northeast Team 1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3278 FAX: 718-995-5699 Mr. Edward J. Longosz, II Ms. Evelyn D. Sahr Respondent's Counsel ONE COPY

Eckert, Seamans, Cherin, & Mellot, LLC 1717 Pennsylvania Avenue, N.W., Suite 1200 Washington, D.C. 20006 TEL: 202-659-6619 I 202-659-6622 FAX: 202-659-6699 Judge J.E. Sullivan U.S. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 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 orby 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.