Preparing for an FAA Civil Penalty Action - ABA YLD 101 Practice Series

By Chris Fortier

The FAA has three different types of actions it can take: one for pilots, mechanics, flight engineers, and repairmen, one for airports, and one for all other civil penalty violations. 1

This checklist will focus on procedures for all other civil penalty violations in the pre-trial phase including where to file answers, how to intervene into an FAA civil penalty case, whether these procedures apply, what motions are available to you and other parties, and interlocutory appeals.

Applicability and Jurisdiction
You can use these procedures for certain types of violations. Check the proposed order or complaint. These chapters and sections of Title 49 of the U.S. Code and rulings resulting out of these chapters and sections are adjudicated through these procedures:

  • Chapters 401, 441, 447 2
  • Sections 44502(b) or (c), 46301(b), 46302, 46303, 46318, or 47107(b) 3
  • Sections 47528, 47529, 47530 (The National Aviation Noise Policy) 4

These procedures may also apply for cases that involve hazardous materials violations as found in 49 USC chapter 51 or in any rulings, regulations, or orders stemming from those laws. The FAA will consider these factors in determining whether proceed:

  • The nature, circumstances, extent, and gravity of the violation;
  • With respect to the violator, the degree of culpability, any history of prior violations, the ability to pay, and any effect on the ability to continue to do business; and
  • Such other matters as justice may require. 5

Any case that exceeds the limits defined in this section will be in the exclusive jurisdiction of a federal court 6. As defined in 14 CFR Section 13.16(b), cases outside these limits will fall into federal court (either in Washington, DC or in your client's district if he or she is not a third party to the suit):

  • Money in suit: $50,000 maximum when individual or small business is involved and $400,000 when anything else is involved.
  • The action is not in rem or not related to another in rem action.
  • The action does not involve a seized aircraft that was subject to a lien.
  • There is and never was another action for an injunction on the same violation.

Here is a brief run down on who is who in these proceedings:

  • A party is your client, the FAA, and other affected entities seeking resolution for the problem in dispute.
  • The agency attorney is the lawyer that represents the FAA in these proceedings
  • An Administrative Law Judge (ALJ) is the person who oversees the proceedings for your case
  • The FAA decisionmaker is the Administrator of the FAA and acts as the final decision making authority in the case. This person will be the authority you appeal to if you wish to file an interlocutory appeal for a decision of the ALJ. 7

These proceedings can go with more than two parties. Additional parties may join in on the case by filing for a leave of intervention. Unless the third party shows a good cause, no one can move to leave to intervene after ten (10) days before the trial. 8

  • Your participation does not burden the proceedings AND
  • That you will be bound by any order or decision entered in the action OR
    Your client has a property, financial, or other legitimate interest that may not be addressed adequately by the parties

The ALJ may determine your role and the extent of your participation in the proceedings. 9

Answer In civil penalty actions, you have the option of answering the complaint or filing a number of motions. 10 Answers are similar to what you have to do for answering a complaint in a state or federal court situation with a few exceptions. You have thirty (30) days to answer the complaint in writing from the FAA.

  • State all affirmative defenses you intend to use in the proceedings. 11
  • Serve a copy of the answer onto the agency attorney who wrote the complaint. 12
  • Answer each specific allegation in the complaint. Anything not answered will be deemed "admitted." 13
  • Include a short, plain statement of the facts 14
  • State what you want the court to do 15
  • Mail your answer to these addresses: 16

Federal Aviation Administration
800 Independence Avenue, SW.
Washington, DC 20591
Attention: Hearing Docket Clerk, AGC - 430,
Wilbur Wright Building - Suite 2W1000.

Federal Aviation Administration
600 Independence Avenue, SW.
Wilbur Wright Building - Suite 2W1000
Washington, DC 20591
Attention: Hearing Docket Clerk, AGC - 430.

Motions You Can File
You have the option of filing the following motions with the administrative law judge along with, in lieu of, or after filing an answer. Bear in mind that the FAA also has these motions at their disposal and if they file these motions, you will have ten (10) days to respond to their motions. Depending on the timing of your motion filing, the administrative law judge will rule on your motion either before or during the hearing.

  • Motion to Dismiss for Insufficiency 17
    It is critical to show in this motion that the FAA failed to state a violation of a Federal Aviation (listed in the first sentence in 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531) or Hazardous Material Transport laws(49 U.S.C. 5121 - 5128) listed in the U.S. Code or any rule, regulation, or order interpreting, implementing, or expounding on those laws.
  • Motion for a more definite statement 18
    Here, you will need to specifically state which allegations are "uncertain or indefinite" and submit details you believe will make that particular allegation "certain or definite." If no "more definitive" statement results from the other side, the ALJ will strike the allegation from the pleading.
  • Motion to Strike 19
    You can move the court to take out any insufficient, redundant, immaterial, or irrelevant allegations or material from the pleadings. File the motion with the ALJ and serve a copy on to the FAA before your response is required to be turned in, or if no response is required then no later than 10 days from the time the pleading was served to you.
  • Motion to Dismiss Allegations or Complaint 20
    This motion is similar to a statute of limitations defense where you assert the FAA acted too late on your client. The FAA needs to issue a proposed order of action within two (2) years of the violation date. You can move to dismiss all or part of a complaint with this motion. Unless the FAA can show good cause, the ALJ will dismiss the complaint.
  • Motion to Dismiss 21
    Any party may file a motion to dismiss. Make sure you specify the grounds for dismissal.
  • Motion for Decision 22
    Similar to a federal court's motion for a summary judgment, you are saying there is no issue of material fact, therefore, you ask the ALJ to make a decision based on the law. The party making this motion has the burden of proof to show that there are no issues of material fact.
  • Motion for Disqualification 23
    Here you are trying to disqualify the ALJ who is overseeing your case. Any party can file anytime in the proceedings before the ALJ files an "initial decision in the proceedings." In the written motion, you will need to demonstrate that the ALJ has a "personal bias, pecuniary interest, or other factors showing disqualification." You will need to attach an affidavit specifically demonstrating the matters that would disqualify the ALJ. 24 If you receive this type of motion from another party, you have five (5) days to respond. 25 The ALJ must rule on this motion within fifteen (15) days or else he or she is removed 26.

The ALJ will rule on your motions. Should the ALJ rule not in your favor, you will have ten(10) additional days to answer the complaint from the FAA. 27

Want to Appeal?
There are limited situations where you are allowed to appeal. The FAA Rules of Practice allow for interlocutory appeal either by right or for cause. Most appeals will be appeals for cause. These appeals go to the FAA decisionmaker, who is above the ALJ:

  • I nterlocutory Appeal for Cause
    These appeals need the permission of the ALJ in order to proceed. Here, the ALJ would decide whether to stay the proceedings in order for the appeal to run its course. Here, you have the burden of proof to "show that delay of the appeal would be detrimental to the public interest or would result in undue prejudice to any party." 28
  • Interlocutory Appeal by Right
    These appeals go straight to the FAA decisionmaker without any consent from the ALJ. The proceedings are stayed when the party notifies the ALJ of the appeal. You can file this appeal by right only in the cases of:
    • An ALJ ruling barring someone from the proceeding 29
    • An ALJ failing to dismiss a case when the FAA files to withdraw the request for a hearing or their complaint 30
    • An ALJ goes outside of the duties specified in 14 CFR 13.205 (the role of an ALJ) 31

Appeal Procedure

  • File notice of interlocutory appeal with
    • The FAA decisionmaker and the hearing docket clerk
    • Each party in the proceeding
    • The ALJ in your proceeding
  • You have a time limit of ten (10) days from either the permission of the ALJ in appeals for cause or the decision forming the appeal by right.
  • Include supporting documents in your notice.

If another party files an interlocutory appeal, you will have ten (10) days after the appeal notice is served on you to file a reply brief. You must file your reply brief with the FAA decisionmaker and serve copies to all other parties involved. The FAA decisionmaker will then make a decision on the briefs. 32

Be careful in using your appeals! The FAA decisionmaker will reject appeals that are frivolous, dilatory, or repetitive and may punish you and your client if you annoy him or her with your appeals. The FAA decisionmaker may be able to bar you from making further interlocutory appeals during the proceedings. 33


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About the Author

Chris Fortier is Chair of the ABA Young Lawyers Division's Public Utilities, Telecommunications, and Transportation Committee for the bar year 2006-2007 and Young Lawyer Liaison to the Section of Public Utilities, Communications, and Transportation Law. He is admitted to the Virginia and Washington, DC bars.

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