### SERVED: June 

### 29, 2016
U.S. DEPARTMENT OF TRANSPORTATION· OFFICE OF HEARINGS , ;_ WASHINGTON, DC

\



### -- \ In The Matter Of: Docket No.**FAA~2014-0405** Christopher McCann ) ) ) ) ) Respondent Case No. 2013-GL-15-0056

ORDER OFDISMISSAL DUE TO RESPONDENT'S CONSTRUCTIVEWITHDRAW AL

. On April 4, 2016, the undersignedjudge issued an Order Directing the Parties to Meet and Confer Regarding Litigation and Scheduling Issues ("Meet and Confer Order"). The order required, 

### inter alia, the parties to submit ajointreport to the undersignedjudge within 30 days of that order. On April 28, 2016, Complainant filed a unilateral report, stating that attempts to meet and confer with Respondent had failed. Respondent failed to submit a report orrequest for additional time before the deadline. On May 17, 2016, the undersignedjudge issued an Orderto Show Cause and Provide Requested Information ("Order to Show Cause"). The order required Respondent to explain the
cause ofits failure to comply with the Meet and Confer Order and provide the information requested in that same order. In the Orderto Show Cause, the undersignedjudge advised Respondent that failure to participate in the proceedings may be deemed a constructive withdrawal ofthe request for hearing. Respondent failed to submit a report orrequest for additional time before the deadline. Discussion Respondent has failed to respond to documents sent by both the ALJ and the FAA attorney and failed to respond to multiple orders. After Respondent filed a Request for Hearing and an Objection to Complainant's Motion to Dismiss, Respondent stopped complying with orders from the assigned Administrative LawJudge. Complainant filed a unilateral report onApril 28, 2016 indicating that attempts to meet and confer with Respondent had failed due to Respondent'sfailure to respond despite Complainant's multiple attempts to contact Respondent. Complainant sent letters to Respondent on April 7 and 20, 2016, asking Respondent to contact agency counsel byphone oremail to schedule a conference and providing Respondent with contact information for agency counsel. Additionally, Complainant sent two emails to Respondent's last known email address, neither ofwhiCh was returned as undeliverable. Further, Respondent has not notified eitherthe ALJ orthe FAA attorney ofany change of mailing address. None ofthe mail that has been sent to Respondent's address has been returned to the Office ofHearings, making it more likely than not that Respondent has received all ofthe recent orders and requests and yet has chosen notto comply. Despite receiving an Orderto Show Cause, Respondent has not provided any reason for its failure to comply with the Meet and Confer Order. Applicable Law Among other reasons, a Respondent may be deemed to have constructively withdrawn

## a request for a hearing ifthe Respondent fails to respond to ajudge's orders, 1is silent,2 or fails to appear at a hearing without good cause.3 Additionally, ifa Respondent fails to respond to documents sent to them by the ALJ orthe Complainant, then such failure shall be construed as
an abandonment ofthe hearing process.4 Pu.rsuant to 14 C.F.R. § 13.215, a party may withdraw a request for a hearing without the consent ofthe administrative-lawjudge at any time before or during a hearing. Upon such withdrawal, the administrative lawjudge shall dismiss the case with prejudice. Conclusion Based upon a reviewofthe record and consideration ofthe applicable statutes, regulations, and case law, the undersignedjudge makes the following findings offact:
1. Respondent submitted

### arequest for hearing in this matter onJune 15, 2014.

1 Blankson, DocketNo. CP97EA0024 (FAA Sep. 11, I997) (ALJ found failure to respond to previous orders constituted constructive withdrawal), aff'd, FAA Order No. 98-21 (Oct. 9, I998). 2 See, e.g., JAL PowerSupply, Docket No. CPOISOOOl5 (FAA Aug. 7, 2001) (ALJ construed Respondent's silence as a constructive withdrawal ofrequest for a hearing), appeal dismissed, FAA OrderNo. 2002-10.(Apr. 17, 2002); McDermott, FAA Order No. 99-8, at 1 (August 3I, I999); Pierre, FAA OrderNo. 2001-8, at 5 (May I6, 2001) 3 See InsteadBalloon Services, FAA OrderNo. 1998-23, at 3 (Nov. 24, 1998) (affirming ALJ's decision to find constructive withdrawal when a party failed to appear at thehearing without good cause);ApolloA & HS Company, FAA OrderNo. 2011-4, at 4 (Jan. 14, 2011) ("Apollo's failure to appear at the hearing and to pursue its request for · hearing without good cause constituted a constructive withdrawal ofits request for hearing."). · 4 Nissen, FAA OrderNo. 2005-15, at 5 (Dec. 15, 2005).

### 2. Respondent has been served all relevant filings, including the Meet and Confer Order and the Orderto Show Cause. 3. Respondent failed to comply with, orrespond to, the Meet and Confer Order. 4. Respondent was advised in the Orderto Show Cause that further failure to participate in the proceedings may be deemed a constructive withdrawal ofthe request for**hearing~** 

### 5. Respondent failed to respond to the Order to Show Cause. 6. Respondent's failure to participate in the proceedings in this case constitutes a constructive withdrawal ofthe Respondent's request for hearing. 

### THEREFORE, IT IS 

### ORDERED that these proceedirigs are dismissed with prejudice.5



### Attachment: Service List**~.**

# ~WALD Administrative Law Judge

5 The case now reverts to the Final Notice ofProposed Civil Penalty stage. SeeApollo at 4-5. Should either party wish to appeal this decision, they are instructed to file a notice ofappeal with the'FAA decisionmaker no later than IO days from the service ofthis order. 14 C.F.R. § 13.233(a). The party must also file the notice ofappeal in the FAA Hearing Docket using the appropriate address listed in 14 C.F.R. § 13.210(a). Finally, the party must perfect their appeal by filing, not later than 50 days from service ofthis order, an appeal briefwith the FAA decisionmaker. 14 C.F.R. § 13.233(c)

..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-Suite 2Wl0006

Christopher Mccann, Respondent 109 4th Avenue North Sartell, MN 56377 ONE COPY

Jonathan C. Bringewatt, Complainant's Counsel Federal Aviation Administration Office ofRegional Counsel (AGL-7J) 2300 East Devon Avenue Des Plaines, IL 60018 DESK: 847-294-7063 MAIN:847-294-7313 FAX: 847-294-7498 EMAIL:jonathan.bringewatt@faa.gov The Honorable Douglas M. Rawald,AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (El 1-310) Washington,DC 20590 TEL: 202:.366-5121 StaffAssistant FAX: 202-366-7536 DocketNo. FAA-2014-0405 (Civil Penalty Action)

6 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.