SERVED: October 1, 2020

U.S. DEPARTMENT OF TRANSPORTATIONOFFICE OF HEARINGS

WASHINGTON, DC

In the Matter of:

FELTS FIELD AVIATION, INC.Docket No. FAA-2016-9210

Case No. 2013AL910020Respondent

ORDER DENYING THE FAA'S REQUEST

FOR INTERLOCUTORY APPEAL FOR CAUSE

On July 31, 2020, an Order Striking Certain Pleadings and Denying Felts Field's Motion

to Dismiss was filed ("July 31, 2020 Order").

On August 10, 2020, the Respondent, Felts Field Aviation, Inc. ("Felts Field") filed the

Respondent's Answer to the Federal Aviation Administration's Amended Complaint.

On August 21, 2020, an Order Setting a Rule 16 Litigation Scheduling Conference, and

Directing the Parties to Confer and File a Rule 26(1) Discovery Plan was filed. Among other

things, this Order set an October 13, 2020 deadline for the parties to file a joint discovery plan

and ordered the parties to appear by telephone on October 20, 2020, for the Rule 16 Litigation

Scheduling Conference.

Later that same day, August 21, 2020, the FAA filed by email a Request for Interlocutory

Appeal for Cause ("Request") directed at the July 31, 2020 Order.

On September 3, 2020, Felts Field filed by email the Respondent's Answer to the FAA's

Request for Interlocutory Appeal for Cause or Alternatively Objection and Motion to Strike

("Answer" and "Alternate Motion to Strike").

On September 17, 2020, the FAA filed by email a Response to Motion to Strike

("Response")

A. PRELIMINARY MATTERS

1. The FAA's Request, Felts Field's Answer, and the FAA's Response

¯ In its August 21, 2020 Request, the FAA cites to 14 C.F.R. § 13.219(b), and asks the

Court to grant an interlocutory appeal because "delaying an appeal of this issue" would be

detrimental to the public interest and cause undue prejudice to the FAA. (Req. 2-3). In its

September 3, 2020 Answer, Felts Field argues that it has a right to file an answer, and that the

FAA's Request should be denied, primarily because the Request is untimely, but also because

the FAA has not shown that delay of the appeal would be detrimental to the public interest or

cause undue prejudice to either party. (Ans. 5.) Alternatively, Felts Field objects to the FAA's

Request and moves to strike it under 14 C.F.R. § 13.218(f)(4). In its September 17, 2020

Response, the FAA primarily argues that Felts Field has no authorization to file an answer or an

alternate objection to its Request, but alternatively, if Felts Field's arguments are allowed and

considered, they are without merit. Further, the FAA reasserts that it will suffer prejudice if an

interlocutory appeal is denied on that portion of its Request involving the striking of pleadings

involving another FAA investigation that did not result in any charges. (Resp. 6.)

2. A "Request" is a Motion

In its Response, the FAA asserts that the FAA's Rules of Practice ("ROP") do not

"reference any response being permitted to a request for interlocutory appeal for cause." (Resp.

1.) Therefore, the FAA argues, no response from Felts Field (or any nonmovant) should be

allowed. The FAA is incorrect in its argument.

It is true that Section 13.219(b) of the ROP does not specify that a request for

interlocutory appeal is a motion, or that a response is permitted to such a request. However, a

motion is defined as "a request to the court for an order." Steven Baicker-McKee et al., Federal

Civil Rules Handbook, 331 (Thomson Reuters, 2020). A motion "must be in writing" unless it is

orally presented during a hearing or trial. (Id. at 332); see 14 C.F.R. § 13.218(a)-(c); 5 Charles

Alan Wright & Arthur R. Miller, Fed. Prac. & Proc. Civ. § 1191 (3d ed.2020).

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Pursuant to both the FAA's ROPs and general federal litigation practice, a motion should

"state the relief sought" and the "particular grounds supporting that relief." 14 C.F.R.

§ 13.218(b)1; see also, Fed. R. Civ. P. 7(b)(1)(B); 21 Kenneth W. Graham, Jr., Federal Practice

and Procedure Evidence § 5036.3 (2d ed., May 2020 Update); Mountain Air Cargo, Inc., Docket

No. FAA-2014-0111, Order, 2014 WL 3786745, at *2 (July 28, 2014); Airbase Services, Inc.,

Docket No. FAA-2016-6409, Order, 2020 WL 4443406, at *4 (July 31, 2020). In response to a

party's motion, "[a]ny party may file an answer, with affidavits or other evidence in support of

the answer, not later than 10 days after service of a written motion on that party." 14 C.F.R. §

13.218(d); see Baicker-McKee et al., supra, at 334; see also Fed. R. Civ. P.7 (a party may

oppose a motion by filing an answer or a brief or a memorandum).

In the instant case, the FAA' s Request was submitted in writing. The FAA states the

relief it seeks-permission to file an interlocutory appeal for cause-and the particular grounds

supporting that relief-avoiding undue prejudice and protecting the public interest. The FAA

requests that the Court issue an order allowing the FAA to file an interlocutory appeal for cause

with the FAA decisionmaker. The FAA's Request is a motion, regardless of whether it is titled a

"request," "petition," or "motion." See, e.g., Alpine Aviation, Inc., Docket No. FAA-2005-22218,

Order, 2005 WL 3353396, at *1 (Nov. 14, 2005) (to the extent that FAA's motion seeks leave to

file an interlocutory appeal, that motion is denied).

Thus, the FAA's ROPs, as well as fundamental due process, allow Felts Field (or any

non-movant) an opportunity to file a response, in which it may agree with or oppose the request

for interlocutory appeal. See, e.g., CVS Corp., Docket No. CPO3S00014, Order, 2004 WL

1167930, at * 1 (May 6, 2004) (the FAA's objection to respondent's request for interlocutory

appeal considered and discussed); Valletta, Docket No. FAA-2005-22675, Order, 2006 WL

754845, at * 1 (respondent's response to the FAA's request for interlocutory appeal considered).

'Pursuant to 14 C. F.R. § 13.218(b), a motion filed in these proceedings should "state the relief sought" and the"particular grounds supporting that relief." In addition, any factual evidence in support of the motion, "includingaffidavits," should be attached. The evidentiary provision of 14 C.F.R. § 13.218(b) mirrors the evidentiary motionrequirement contained in Fed. R. Civ. P. 6(c)(2). in federal proceedings, in lieu of an affidavit, a declaration,certification, or other factual statement which is signed under penalty of perjury may also be utilized. 28 U.S.C. §1746; see also, 1-9 Moore's Answer Guide: Fed. Pretrial Civil Litigation, §9.05(6).

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3. Automatic Stay Does Not Preclude Response

In its Response, the FAA correctly states that litigation action in this civil penalty

proceeding is automatically stayed when it filed its request for interlocutory appeal. (Resp. 1-2.)

The FAA then draws the conclusion that as soon as it filed a request for interlocutory review, the

automatic stay of litigation action precluded the non-movant, Felts Field; from filing any

response to the FAA's Request. (Resp. 2.) The FAA's conclusion is incorrect.

The automatic stay serves to delay the litigation action and conserve party resources,

while the movant's request for interlocutory appeal relief is pending.

A stay, without automatic dissolution by operation of the rule, serves the interestsof both the adjudicators and the parties in these cases by conserving the resourcesof both the parties and adjudicators, and ensuring final resolution of an issueimportant enough to warrant interlocutory appeal.

Rules of Practice for FAA Civil Penalty Actions, 55 Fed. Reg. 45980, 45981 (Oct. 31, 1990)(Discussion of Interlocutory Appeals).

In short, the stay "freezes" the parties' places in the litigation proceeding,2 while

argument and a decision on the movant's request for interlocutory appeal is pending. But the

automatic stay does not impact the non-movant' s right to challenge the appealability issue.

Instead, the stay acts to give both parties the time needed to address the appealability issue.

Although the arguments and any material submitted to the law judge may be verysimilar to the arguments prepared for the Administrator, the rule should notoperate to truncate either the time provided to a party to prepare arguments or thetime provided to a law judge to review such arguments.

Id.

4. Felts Field's Alternate Motion to Strike

As explained supra, Felts Field has a right to voice agreement or opposition to the FAA's

pending request for interlocutory appeal relief. Thus, Felts Field's September 3, 2020 Answer is

2 For example, in this case, the parties may not conduct informal discovery during this stay period. Until the stay islifted, the parties are not bound to the current deadline of October 13, 2020, to file a Joint Scheduling/DiscoveryPlan, nor are they expected to appear on October 20, 2020, for a Rule 16 Litigation Conference.

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accepted, and Felts Field's Alternate Motion to Strike is rendered moot, and will not be further

discussed.

5. The FAA's Response to Alternate Motion to Strike

Because Felts Field's Alternate Motion to Strike is rendered moot, that portion of the

FAA's Response that addresses the Alternate Motion to Strike (see, Resp. 2, paras. 2 and 3) is

also rendered moot and will not be discussed.

6. The FAA's Untitled and Unsolicited Reply Material

In its September 3, 2020 Answer, Felts Field made clear (both in title and content) that it

was submitting both an Answer to the FAA's Request, and an Alternate Motion to Strike. In the

FAA's September 17, 2020 Response, the FAA acknowledged that the majority of Felts Field's

Answer was "a direct response to the FAA's Request:" (Resp. 1.) The FAA briefly responded to

the Alternate Motion to Strike (see, Resp. 2, paras. 2 and 3), and then utilized the majority of its

Response to offer an unsolicited and untitled reply3 to Felts Field's Answer, primarily on the

following issues: a) the timeliness of the FAA's Request (Ans. 7-12; Resp. 2); b) the FAA's

assertions of prejudice (Ans. 12-13, 16-20; Resp. 3); c) the prejudice that Felts Field alleged it

would suffer if the request for interlocutory appeal was granted (Ans. 8-9; Resp. 3-4); and, d) the

FAA'S assertions that the Court's interpretation of 14 C.F. R. § 13.208(d) was "novel" and

needed to be immediately addressed to avoid detriment to the public interest. (Ans. 13-20; Resp.

4-6).

a) Replies are a Matter of Court Discretion

The FAA's ROP do not specifically provide for replies or reply briefs. 14 C.F.R. §

13.218. This is generally consistent with the Federal Rules of Civil Procedure, which appear to

remain silent as to replies fr motion practice. Wright & Miller, supra, § 1185; Skydive Myrtle

Beach, Inc., FAA-2016-8488, Order, 2018 WL 1234312 at *2 (Feb. 28, 2018).

A party submitting motion materials is required, by both the FAA ROP and general federal litigation practice, toproperly title its submitted materials so that both this Court and the opposing party are provided fair and clear noticeof the submission. For detailed discussion on fair and clear notice requirements in motion practice, see Curtright,Docket No. FAA-2015-1319, Order, 2016 WL3035632, at*2 (May 20, 2016).

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Nevertheless, it is well established that in the absence of statutory provision or court rule,

allowing a party to file a reply to a motion is a matter of court discretion.4 56 Am. Jur. 2dMotions, Rules, and Orders § 25 (2d ed., Aug. 2020 Update); 5 Fed. Prac. & Proc. Civ. § 1185.

A party must move for leave to file a reply. American Airlines, FAA Order No. 89-0006, 1989

WL 550062, at *4, fn. 3 (Dec. 20, 1989) (There is no provision for a reply to an answer to a

motion in 14 C.F.R. 13.218. Hence, it was inappropriate for respondent to file such a reply

without leave of the judge). The court may order a reply either by permission (ruling upon a

motion) or sua sponte when the court seeks further party assistance in deciding a disputed matter.5 Fed. Prac. & Proc. Civ. § 1185; See, Schumann v. CollierAnesthesia, P.A., No. 2:12-CV-347 -

FTM-29CM, 2014 WL 1230644, at *4 11.3 (M.D. Fla. Mar. 25, 2014) (motion for leave to file

reply brief denied, on the grounds it would not benefit the court in resolution of the pending

motion).

b) Untitled Motion Materials May be Struck

Because untitled motions are improper practice, the court may strike or dismiss such

flawed request(s), without consideration on the merits, because they violate clear notice

requirements. See Baicker-McKee et al., supra, at 332-33; Woolpert LLC, Docket No. FAA-

2015 -0211, Order, 2019 WL 3492266, at *2 (July 31, 2019).

c) Unsolicited Reply May Be Struck or Disregarded

The Court may also strike, or refuse to consider, unsolicited replies. See, 61A Am. Jur. 2d

Pleading § 365 (2d ed. 2020)("a reply is superfluous and improper where.. .the court has not

ordered a reply to be made. Although the court may consider such a reply if it wishes, it may be

stricken, or the court may simply disregard it.)

' The Federal Rules of Civil Procedure do not specifically provide for the filing of a reply during motionproceedings. Fed. R. Civ. P. 7(a)(7)). However, pursuant Rule 7(b)(2), the "captions and other matters" of form forinitial pleadings also apply to motion practice. While the language of Rule 7 does not clearly state the scope ofapplicable "other matters" referenced,courts and legal authorities have long recognized replies as allowable inmotions practice. 56 Am. Jur. 2d, supra, § 23-25.

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d) FAA Untitled and Unsolicited Reply Material Accepted

In the instant case, Felts Field's Alternate Motion to Strike was limited in scope (Ans. 20-

22). As a consequence, it was fairly clear to this Court that the FAA's Response was primarily an

unsolicited and untitled reply to the Felts Field's Answer. Without establishing a precedent for

future untitled and unsolicited replies, the Court accepts and will consider the reply content of

the FAA's Response in this case.

B. SUMMARY OF JULY 31, 2020 ORDER

The FAA seeks interlocutory appeal of the Court's July 31, 2020 Order. Felts Field

opposes the FAA's request for interlocutory appeal.

In its July 31, 2020 Order, the Court denied Felts Field's Motion to Dismiss the

Complaint pursuant to 14 C.F.R. § 13.208(d).5 (July 31, 2020 Order 25, ¶ 3.) However, the Court

found that the FAA's fact allegations in its Amended Complaint (Am. Cmpl. 4, § II. ¶ 12(a)-(d))

that preceded the date of December 11, 2011 were outside the two (2) year limitations period.

These allegations were stale ("Stale Allegations") and were struck.

Further, the language in the Amended Complaint 4, § II. ¶ 13 that states: "Inregard to paragraph 12 above' is limited to fact allegations within the two yearlimitations period, for facts alleged as of December 11, 2011 and going forward.All other language in the FAA' s Amended Complaint which references the year2011 is deemed to reference the date of December 11, 2011 going forward, withany on-going violation(s) to be proved limited to the two-year time betweenDecember 11, 2011 and December 13, 2013.

(Id. at 24-25, ¶ 1

The Court also found that the fact allegations in the Amended Complaint regarding an

attempted April 9, 2013 inspection of Felts Field and Felt's Field drug and alcohol testing

records ("record inspection allegations") were facts that arose from a separate, April 9, 2013

investigation, identified as "Case 0011." It was undisputed that the FAA had closed that separate

investigation by notifying Felts Field, in a September 4, 2013 Warning Notice, that the FAA had

Section 13.208(d) provides: "Instead of filing an answer to the complaint, a respondent may move to dismiss thecomplaint, or that part of the complaint, alleging a violation that occurred on or after August 2, 1990, and more than2 years before an agency attorney issued a notice of proposed civil penalty to the respondent." 14 C.F.R.§ 13.208(d).

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"decided not to take legal enforcement action" in regard to the "apparent [record providing]

violation" that had occurred on April 9, 2013. (Id. at 3-4.) It also appeared undisputed that the

fact allegations in Case 0011 were irrelevant to proving the violations charged in the Amended

Complaint. (Id. at 20-21.) Therefore, the Court ordered "[t]he fact pleadings . . . regarding the

attempted April 9, 2013 inspection of records. . . (Am. Compl. 2, § II ¶J 3-6)" be "struck." (Id.

at 25, IJ 2.)

C. STANDARD FOR REQUEST FOR INTERLOCUTORY APPEAL FOR CAUSE

1. Legal Authority and Procedure

Generally, a party may not appeal from judicial rulings while the case is being litigated

by the parties. 14 C.F.R. § 13.219(a). Felts Field is therefore correct that interlocutory appeals

not favored, either in general federal litigation or in in FAA civil penalty enforcement

proceedings. (Ans. 5-6); see, Lane, FAA Docket No. CP93EA0078, Order, 1993 WL 13036574,

at 1, fn. 1 (April 21, 1993); Wyatt, FAA Docket No. CP91AL0517, 1992 WL 12036792, at *1

(Jan. 29, 1992).

However, the ROPs do provide for limited interlocutory appeal during a pending case if

the party can assert cause, 14 C.F.R. § 13.219(b), or a legal right, 14 C.F.R. § 13.219(c).

Airborne Maintenance and Engineering Services, Docket No. FAA-2013-0291, Order, 2015 WL

1816955, at *2 (Apr. 10, 2015).

In the instant case, the FAA seeks interlocutory appeal on the basis of cause. Pursuant to

Section 13.219(b), the FAA must show "that delay of the appeal would be detrimental to the

public interest or would result in undue prejudice to any party." 14 C.F.R. § 13.219(b); Valletta,

Docket No. FAA-2005-22675, Order, 2006 WL 754845 at *1 (March 20, 2006). If the Court

denies the request for interlocutory appeal, the FAA must proceed with the case litigation and

renew its appellate issues after the Court issues an Initial Decision. 14 C.F.R. § 13.233(a); see,

Keller, Docket No. FAA-2006-25869, Order, 2006 WL 3851158, at *1 (Dec. 15, 2006)

(interlocutory appeal request denied, in part because movant's interests are adequately protected

by an appeal from an initial decision).

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2. No Entitlement to Interlocutory Appeal for Cause

The FAA asserts that it is "entitled" to an interlocutory appeal for cause in this case.

(Req. 1, 2, 5.) Felts Field disagrees, citing to prior cases in which this tribunal denied a movant's

request for interlocutory appeal. (Ans. 6.)

Felts Field is correct. A party is never "entitled" to a discretionary appeal. The decision is

left to the sole discretion of the Judge. See Ponsford, FAA Order No. 20 10-3, at 3 (April 28,

2010) (noting difference between "entitle[ment] to file an interlocutory appeal of right" and

"obtain[ing] the AU's permission to file an interlocutory appeal for cause."); Alpine Aviation,

Inc., Docket No. FAA-2005-22218, Order, 2005 WL 3353396, at *1(Nov. 14, 2005)(to the

extent the motion seeks leave to file an interlocutory appeal, that motion is denied); see also,

Ruggeri v. Boehringerlngelheim Pharm., Inc., Civ. No. 3:06cv1985, 2009 WL 1505580, at *1

(D. Conn. May 26, 2009) (applying different and stricter standard of 28 U.S.C. § 1292(b), "Even

where these statutory criteria are met, certification for interlocutory appeal may be denied in

light of the 'basic tenet of federal law to delay appellate review until a final judgment has been

entered." (quoting Koehler v. Bank ofBermuda Ltd., 101 F.3d 863, 865 (2d Cir.1996))).

D. BRIEF DISCUSSION

All arguments and materials have been considered. This section discusses only certain

issues raised and argued by the parties.

1. Time Taken During Post-Hearing Appeal

The FAA asserts undue prejudice to itself and to Felts Field, because if the FAA's

Request is denied, "it is reasonably likely that the [FAA] Decisionmaker would not have the

opportunity to rule on this issue for at least several years." (Id. at 3.)

First, the FAA did not proffer any evidentiary fact or citation to prior caselaw, to show

that the FAA decisionmaker would not have the opportunity to rule on the issue for several

years. Second, even if such proffer of fact was made, the FAA cites to no legal support for its

argument that the time it takes to litigate a case, or any time taken by an appellate decision-

maker to issue a post-hearing decision, may serve as "undue prejudice" grounds to support

granting an interlocutory appeal for cause to the appellate decision-maker during the hearing

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proceeding. See, e.g., CVS Corp., Docket No. CP03S00014, Order, 2004 WL 1167930, at *1

(May 6, 2004) (finding that the time and effort "required to litigate the matter" does not

constitute "undue prejudice" in considering a request for interlocutory appeal).

2. Future Hearing Proceedings on Remand

The FAA asserts undue prejudice on the basis that, if it later succeeds on a post-hearing

appeal to the FAA decisionmaker, both parties may find themselves back in this Court on

remand, engaging in additional discovery and a second hearing which would cause the parties

additional time and expended resources. (Req. 2-3).

Even if it is assumed that this case is later appealed, and may potentially be remanded

back to this tribunal, it has long been established that the possibility of post-hearing proceedings

is not per se prejudicial. See, e.g., Administrator v. Minter, NTSB Order No. EA-4729, 1998 WL

834524, at *1 (Dec. 3, 1998) (finding prospect of repeated hearings, "however inefficient and

inconvenient it might be in a given case, neither creates a substantial detriment to the public

interest nor amounts to undue prejudice to a party"); see, CT/S Corp., supra, at * 1. To find

otherwise would allow 14 C.F.R. § 13.219(b) to swallow up the general rule disfavoring

interlocutory appeals. 14 C.F.R. § 13.2 19(a) ("Unless otherwise provided in this subpart, a party

may not appeal a ruling or decision of the administrative law judge to the FAA decisionmaker

until the initial decision has been entered on the record."); see generally, 16 Edward H. Cooper,

Federal Practice and Procedure Jurisdiction § 3920 (Apr. 2020 Update) (final judgment rule in

federal courts "reflects general policy of discouraging interlocutory appeals").

3. Record Inspection Allegations as Aggravating Evidence

In its July 31, 2020 Order, the Court struck certain record inspection allegations from the

FAA's Complaint. The FAA argues undue prejudice will result from that ruling, because it will

not be allowed to raise and prove these fact allegations as "aggravating" evidence (i.e., to allege

and prove that Felts Field has a poor compliance disposition) at the hearing, to support its

proposed $44,000 civil penalty for the five (5) alleged violations. (Am. Compl. 5-7, § III. ¶ 1.

(a)-(e); Resp. 4-5.)

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It should be noted that in its underlying motion materials,6 the FAA acknowledged that

the record inspection allegations were "separate" from the instant case, and involved different

"regulatory allegations." (Jan. 11, 2017 FAA Resp. 7.) The FAA also acknowledged that it had

closed this separate record inspection case without bringing any charges against Felts Field. (Id.

at 8.) Further, in the underlying motion, the FAA did not provid any explanation why it had

pled these inspection record facts or why they were relevant to the proceeding. (July 31, 2020

Order 20-2 1, § J.)

Despite the silence of both its underlying motion materials and of its pleadings,7 the FAA

now asserts that it will suffer undue prejudice if these struck record inspection allegations are not

allowed. In this "undue prejudice" assertion, the FAA appears to infer that, utilizing the FAA's

Sanction Guidance, the FAA cannot reach a prima facie case on its proposed civil penalty

amount of $44,000 absent presentation of these record inspection facts as aggravating evidence.

However, the FAA does not make any offer of proof, in either its Request or Response, to show

that it needs such "aggravating" evidence (or alternatively, any finding of aggravation on any

other facts), to reach its proposed $44,000 civil penalty amount for the five alleged violations (if

proven). Thus, the FAA' s assertion that undue prejudice exists in this regard, to support its

Request for Interlocutory Appeal, is without merit.

4. Novelty of Court Ruling and Detriment to Public Interest

The FAA argues that this Court engaged in a "novel interpretation" of 14 C.F. R. §

13.208(d) in its July 31, 2020 Order, by "expanding a prohibition on alleging any 'violation'

occurring more than 2 years before the issuance of the Notice of Proposed Civil Penalty (NPCP)

to anyfactual allegation as well" (Req. 2 (emphasis in original)). The FAA then provides three

6 The July 31, 2020 Order lists all the parties' underlying motion materials. (July 31, 2020 Order, 1-2.)

The FAA's Amended Complaint does not provide any Sanction Guidance calculation showing that the FAAutilized the struck record inspection allegations as part of its sanction assessment. Nor does the FAA's AmendedComplaint allege that the proposed $44,000 civil penalty is based on any aggravating factors (either the recordinspection allegations or other alleged facts).

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hypothetical scenarios8 where it suggests how the Court's "novel" interpretation could negativelyimpact FAA enforcement adjudications and be detrimental to the public interest. (Req. 3-4.)

In its Answer, Felts Field points out that the Court's ruling is not "novel," but based on

both the plain language of Section 13.208(d) and 49 U.S.C. §46310(d)(7)(C). (Ans. 13-14.) Felts

Field also noted that this Court has previously explained in depth why fact allegations in the

pleadings (i.e., alleging or supporting charged violations) that are more than two (2) years prior

to the issuance of a Notice of Proposed Civil Penalty are stale and not allowed. (Ans. 14, citing

MississippiAir Express, LLC, FAA-2014-0866, Order, 2015 WL 4548850, at *6 (July 22,

2015). Further, Felts Field complains that the FAA is inconsistently following and relying upon

the Court's interpretation of the two (2) year limitations rule in a separate pending appeal

involving Felts Field. (Ans. 14-15 (citing Felts FieldAviation, Inc., Docket No. FAA-2015-

3307).

As Felts Field pointed out in the instant case, the FAA appears to assert that the record

inspection allegations in its Amended Complaint should be allowed to fall outside the two (2)

year limitation, but the FAA does not cite to any legal authority that provides such an exception

to the FAA's long-standing two (2) year limitation. (Ans. 14.) In the absence of strong legal and

factual bases, the FAA' s arguments do not support a grant of interlocutory appeal on the grounds

of detriment to the public interest.

5. Timeliness of Request

Both parties agree that 14 C.F.R. § 13.219 does not specify a time limit for filing a

request for an interlocutory appeal for cause or by right. However, Felts Field argues in its

Answer that there is "an implicit requirement that the request" be timely. (Ans. 7.) Felts Field

8 Felts Field correctly states that the FAA's hypotheticals do not reference any actual cases that might be impacted,and appear speculative and self-serving. Further, the FAA seems to combine both alleged facts with established casehistory in its hypotheticals and arguments.

For example (not inclusive), in 1990, the FAA emphasized it was committed to initiating civil penalty actions (i.e.,by issuing a Notice of Proposed Civil Penalty ("NPCP")) within the two (2) year time limitations period. 55 Fed.Reg. 27548, 27555 (Jul. 3, 1990) (Discussion of Final Rule). One of the many reasons for the adoption of the two(2) year limitation in FAA civil penalty enforcement proceedings is to give the respondent timely notice of theFAA's alleged facts and law, so that the respondent has a meaningful opportunity to obtain and preserve"documentary and testimonial evidence relevant to the charges ((14 C.F.R. § 13.16(f)(2)(i)), and to] raise questionsand objections regarding the content of the NPCP." Mississippi Air Express, 2015 WL 4548850, at *6.

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also argues that such an implicit requirement should be limited to ten (10) days after service of

an adverse ruling, because such a ten (10) day requirement exists in the ROPs for filing an appeal

on other grounds. (Ans. 7- 12.) In its Response, the FAA asserts that the Court cannot "invent" a

time to file interlocutory appeals. (Resp. 3.) The FAA agrees that in the Ayala case, FAA Order

No. 20 14-2, 2014 WL 2624204 (June 10, 2014), a "10-day time limit to file the interlocutory

appeal" was "prompted" when the Court offered the FAA and apro se respondent an opportunity

with deadlines to file an interlocutory appeal prior to case closure. (Resp. 3.) The FAA asserts,

however, that this Court cannot insert a time limitation into the ROPs where none exists. (Id.)

In the Ayala case, the FAA Administrator discussed with approval the fact that this Court

had provided the parties a ten-day time limit to file the interlocutory appeal, based on time limits

provided in 14 C.F.R. § 13.219(d) and 13.210(e) of the FAA ROPs. Ayala, 2014 WL 2624204, at* 1. The FAA Administrator also appeared to adopt the Court's application of the ten-day limit

(with five additional days if service is by U.S. mail) for the filing of requests for interlocutory

appeals, when he held that neither party had filed a "timely" interlocutory appeal request before

the Court dismissed the proceeding. (Id. at 2.)

It is undisputed that the FAA was served the Court's July 31, 2020 Order by U.S. Mail.

Applying the time limits of 14 C.F.R. §S 13.219(d), and 13.210(e) to this case, the FAA filed its

Request twenty-one (21) days after service of the Court's July 31, 2020 Order. Pursuant to the

cited ROPs and the FAA Administrator's analysis in the Ayala case, the FAA's Request is

untimely and should be denied.

E. CONCLUSION

PUrsuant to 14 C.F.R. §S 13.205(a)(8) and 13.219(b) and(d), and after reviewing all

pleadings and documents, as well as all relevant caselaw, decisions, regulation, statutory

authority, and being fully advised;

IT IS HEREBY ORDERED:

1. Felts Field's September 3, 2020 Answer is accepted for consideration.

2. Felts Field's September 3, 2020 Alternate Motion to Strike is moot.

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3. The portion of the FAA's September 17, 2020 Response (i.e., Resp. 2, ¶IJ 2, 3), which

addresses Felts Field's Alternate Motion to Strike is moot.

4. The remaining portion of the FAA's September 17, 2020 Response is accepted as an

untitled reply to Felts Field's Answer.

5. The FAA's Request for Interlocutory Appeal for Cause is untimely and is denied.

6. The automatic stay of the proceedings is lifted, effective immediately.

7. November 10, 2020 Deadline: The October 13, 2020 deadline for the parties to file a

Joint Scheduling/Discovery Plan is continued to November 10, 2020.

8. November 17, 2020 Rule 16 Litigation Conference: The October 20, 2020 Rule 16

Litigation Conference is continued to November 17, 2020 at 1:30pm Eastern Time. The

parties shall access the Conference by dialing 888-278-0296, and when prompted,

entering access code 5851842.

9. If either party needs an extension of time as to any of the deadlines in this Order, the

party may file a request for an extension of time.

10. For any questions about the procedures in this Order, please contact Mr. Charles

Boebinger, Judicial Assistant, at 202-366-2132.

eJ.E.Su11aU.S. dmi rative Law Judge

Attachment: Service List

Page 14 of 14

Docket No. FAA-2016-9210(Civil Penalty Action)

FILING AND SERVICE LIST

Federal Aviation Administration800 Independence Avenue, S.W.Washington, DC 20591Attention: Hearing Docket Clerk, AGC-430

Wilbur Wright Building-Suite 2W1000'EMAIL: 9-AGC-FAA-HearingDocketfaa.gov

Judge J.E. SullivanUS. Administrative Law JudgeU.S. Department of TransportationOffice of Hearings, M-201200 New Jersey Avenue, S.E. (El 1-3 10)Washington, DC 20590TEL: 202-366-6941FAX: 202-366-7536EMAIL: M20.HrgDocsdot.gov

SERVED BY U.S. MAIL

Mr. Christopher StevensonComplainant's CounselFederal Aviation AdministrationOffice of the Chief Counsel, Enforcement Division800 Independence Avenue, SWWashington, DC 20591TEL: 202-267-3223FAX: 202-267-5106EMAIL: No Consent Filed

Mr. Mark J. ConlinMr. Benjamin L. WyborneyRespondent's Co-CounselConlin, Maloney & Miller421 W. Riverside Ave., Suite 911Spokane, WA 99201TEL: 509-624-3020FAX: 509-623-1650EMAIL: No Consent Filed

This address is for service by U.S. Mail. For service in person or by expedited courier, use the followingaddress: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2W 1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.