In a recent FAA civil penalty decision, the FAA has been put on notice that it needs to provide proof of Respondent’s receipt of the civil penalty complaint in response to Respondent’s appeal of an order entered by default. In In Re The Matter Of James Ray Lewis, the administrative law judge entered an order assessing a $16,500.00 civil penalty against Mr. Lewis because he failed to respond to the FAA’s complaint. Altough Mr. Lewis had sent a letter requesting a hearing after receiving the FAA’s final notice of proposed civil penalty, Mr. Lewis did not submit an answer to the FAA’s complaint.
Under the Rules of Practice for civil penalty actions (14 C.F.R. § 13.209(a)), a respondent is required to file an Answer, admitting or denying every allegation in the Complaint, no later than 30 days after the FAA served the Complaint. When no answer was filed, the ALJ “construed Mr. Lewis’s silence both as a constructive withdrawal of his request for hearing and as an admission of the Complaint’s allegations.”
After entry of the order assessing civil penalty, Mr. Lewis then sent a letter to the Appellate Docket Clerk, requesting assistance. He did not, however, submit an appeal brief as required by 14 C.F.R. § 13.233. Yet, in the absence of an appeal brief, the Administrator construed Lewis’s letter as a notice of appeal and an appeal brief because the letter contained enough information and argument to explain the basis of Lewis’s appeal: that he did not receive the Complaint.
The Order goes on to suggest that the FAA’s reply brief address: (1) whether the FAA has any evidence that Lewis received the complaint; (2) if not, whether the FAA properly address the complaint; and (3) if Lewis did not receive the complaint, should the ALJ’s order assessing a civil penalty be reversed so as to give the FAA an additional opportunity to serve the complaint and then give Lewis an opportunity to file an answer.
It is nice to see that, on occasion, respondents are given a break and the FAA is called to task for its actions. Maybe it had something to do with Mr. Lewis’s statement in his letter that he wanted to clear the matter up before re-deploying to Iraq. Regardless, if in fact he did not receive the complaint through no fault of his own, hopefully he will receive his opportunity to be heard on the underlying allegations.
