08/11/2014 14:23 8472947498 FAA GLRC

SERVED: August 11, 2014 U.S. DEPARTMENT OFTRANSPORTION OFFICE OFHEARJNGS

WASHINGTON, D.C. TN THEMATTER OF ChristopherMcCann.

DMS No. 2014-0405 Agency Case No. 2013-GL-15-0056 Complainant's Motion to Dismiss Respondent's RequestforHearing. or, in the Alternative, Complainant'sMotion to Deem Allegations Admitted arid Motion forJudgment on the Pleadings or, in theAlternative, Motion to Limitthe IssuesatHearing to Sanction PAGE 02/22

NOW COMES the Complainant, the Federal Aviation Adm.ini.stration (herei.naftcr "FAA" or "Agency", by counsel, and pursuantto the Rules ofPractice set forth in 

### 14 C.F.R. Part 13, Subpart G, ofthe Federal Aviation Regulations, and**fo~** the reasons set**fo~** below, moves the Judge for an order dismissing Respondent's request for hearing. In the alternative, the Agency moves for an order deeming the allegations set forth in the Agency's Complaint admitted and forjudgment on the pleadings or, in the alternative, an Order limiting the issues at hearing to sanction. In support ofitsmotions,theAgency states as follows: FACTS 1. On June 5, 2014, the Agency issued a Final Notice ofProposed Civil Penalty (FNOPCP) to Respondent for a violationof 14 C.P.R. § 121.306, 14 C.F.R. § 121.580, and 49 U.S.C. § 46318. 

### Exhibit A-1. The FNOPCP included explicit instructions on how to request a formal hearing in accordance with 14 C.F.R. 

### § 13.16. Jd at 3.08/11/2014 14:23 8472947498 FAA GLRC PAGE 03/22



### 2. United States Postal Service certified receipt shows that the FNOPCP was delivered on June 7, 2014. Exhibit 

### A-1, page 5. 3. On June 23, 2014, the Agency received Respondent's response to the FNOPCP. Exhibit 

### A-2. The two page response included the following statement: "I amrequesting a formal hearing because aspects ofthe proposed sequence are blatantly false." !d. 

### at 2. 4. TI1e above response was only submitted to the Agency and was not filed with the hearing docket clerk. Respondent did not request a hearing pursuant to 14 C.F.R
.. §13.16(h) which provides that "[a] person requesting a hearing shall file a written request for a hearing with the hearing docket clerk
..." 

### (emphasis added). This request was required to be filed with the hearing docketclerknotlater than 15 days after Respondentreceived the FNOPCP. See 14 C.F.R. !3.16(g)(2)(ii). Therefore, the hearing request was required to be filed withthe hearing docket clerk by June 23, 2014. 5_ On July I, 2014, the Agency served the Complaint in this matter on Respondent, as well
a5

### on. the Hearing Docket. Exhibit

### A-3- 6. Pursuant to 14 C.F.R. 

### § J 

### 3.209(a), a respondent shall file a written answer to the complaint not laterthan 30days after service oHhe complaint. 7. Moreover, "failure to file an answer without good cause shall be deemed an admission of the truth ofeach allegation contained in the complaint." 14 C.F.R. 

### § l3.209(f). 8. On July 16, 2014, Administrative Law Judge Goodwin issued a Procedural Order in this
case which reiterates the requirements of 14 C.F.R. § 

### 13.209 and explicitly explains that "Respondentmust file a written Answer ormotion within.thirty (30) days after service of the Complaint
...[and] failure to ·me an Answer without good cause is deemed an admission ofeach allegation inthe Complaint
..."

208/11/2014 14:23 8472947498 FAA GLRC PAGE 04/22



### 9. Based on the foregoing, Respondent wa$ required to file his answer no laterthanJuly 31, 2014. 1

Q_ 

### To date, the Respondent has failed to :flle an answer to the Agency's Complaint. ARGUMENT I. Motionto Dismiss Respondent's Requestfor Hearing 

### Respondent failed to properly perfect his request for hearingpursuant to 14 C.F.R. § 

### 1 3.16(h) by filing a hearing request with the hearing docket clerk- The regulations clearly state that auy person requesting a hearing "shall 

### file a written request for a hearing with the hearing docket clerk
...and shall mail a copy ofthe request to the agency attorney. The request for a hearing may be in the form ofa letter but must be dated and signed by the personrequesting a hearing." 14 C.F.R. 

### § l3.16(h)(emphasis added). As stated above, pursuant to 14 C.F.R. § 

### l3.16(g)(2)(ii), Respondent's request for a hearing was required to be filed no later than 15 days after receipt of the FNOPCP. By June 7, 2014, the FNOPCP had been. delivered to Respondent 

### Exhibit J_ 

### Therefore, his request for hearing ueeded to be filed with the hearing docket clerk no later thanJune 23, 2014. The FNOPCP specifically explained the 15 day deadline and further explained that he must request the headng with the hearing docket clerk. ld. at 3. Moreover, the regulations contained at 14 C.F.R. § 

### 13.16 were sent to Respondent as an attachment to the Notice ofProposed Civil Penalty which was issued on April 10, 2014. 

### See ExhibitA-1, page 3, .final paragraph. The regulations are clear and the Agency outlined for the Respondent the exact requirements for requesting a heariug in the FNOPCP. Furthermore, although currently 

### pro se, Respondent admits to consulting with an attorn<::y inthis matter. See.ExhibitA-2.

308/11/2014 14:23 8472947498 FAA GLRC PAGE 05/22

However, Respondent failed to comply with the regulations and properly perfect his request for hearing. On June 23, 2014, the Agency received Respondent's response to the FNOPCP which included a statement that Respondent was "requesting a fom1al hearingbecause aspects of the proposed sequence are blatantly false.'' However, Respondent failed to file a written request for a hearing with the hearing docket clerk or submithis response to the hearing docket clerk, as required by 14 C.F.R. § 13.16(h). Consequently, Respondent failed to properly perfect his request for a hearing and, as such, thi.s case should be dismissed in its entirety. II. In the Alternative, Motion to Deem Allegations Admitted & Motion for ;Judgment onthePleadings, orin tbe altenrative; 

### to LimitHeating

### to Sanction In the alternative, the allegations in the Complaint should be deemed admitted because the Respondent has failed to file an answer to the Complaint in a timely manner. The Regulations at 14 C.P.R. § 13.209 p>ovide thata respondentshallfile an answerto the complaint within 30 days after service of the complaint. This language, clear on its face, places an affirmative duty upon the Respondent to file an answer ina timely manner. The necessity to file
a timely answeris not an. option for arespondentbut a duty imposed by regulation. furthermore, there is no discretion provided by regulations for the Respondent to file an answer beyond the stated deadline. This section also provides that failure to file an answer "without good cause shallbe deemed anadmission ofthe truth ofeach allegation contained inthe complaint'' Again, the regulations providefor little to no leniency in this matter. Respondent has yet to file an answer to the Agency's Complainant, and is clearly disregarding his responsibility under 14 C.F.R. § 13.209(a). Additionally, Respondent has not filed any request for an extension oftime or demonstrated that he had good cause for his failure to file a timely answer. The Agency timely served its complaint on the Respondent on July 1,
408/11/2014 14:23 8472947498 FAA GLRC PAGE 05/22

2014, by certified mail. Respondent's lackofcompliance with the established regulations makes the Agency a hostage ofthe Respondent's whim in that the Agency is unable to develop a trial strategy or commence any pretrial preparation because it does notknow what proofit must put
on or refute withoutan answerto the allegations onfile. Under the above circumstances, andin light ofthe Administrator'sprecedent, See, e.g., Jn the Matter ofDona/dM Missirlian. 

### FAA OrderNo. 

### 97-19 at 1(May 22, 

### 1997), In the Matter o.fBarnhill, 

### FAA OrderNo. 92-32 at6, (May 5, !992),In The Matter of Michael Kilduffi, 2011 WL 1483974(April18, 2011), which found no errorwith a lawjudge granting a motion onthe pleadings whenan answerto a complaint is untimely filed (coupled with the absence ofgood
causeforthe failure ofa Respondent to timely 

### file an answer), the allegations inthe present complaintshouldbedeemed admitted. Additionally, under FAA Order 2150.3B, Compliance and Enforcement Program, Sanction Guidance Table, the Agency is seeking an eight thousand dollar ($8,000) civil penalty, whi.ch is within the recommended sanction range for the violations alleged. 

### By Respondent's failme to timely file an answer, the Respondent has provided no mitigating circumstances such that any reduction ofthe proposed san.ction may be found. 

### WHEREFORE, the Administrator hereby respectfully requests (a) the issuance ofan Order dismissing Respondent'srequest for a hearing; (b) the issuance ofan Order granting the Agency'smotion deeming the admission by the Respondent ofthetruthofthe allegations contained in the complaint;

508/11/2014 14:23 8472947498 FAA GLRC PAGE 07/22

(c) judgmentonthe pleadingsbe enteredin favor oftheAgencyor, in the alternative, the Agency requests that any hearing in this matter be limited to the issue of sanction only. Respectfully submitted,



### Complainant's Counsel Great Lakes Region, AGL-7M Federal Aviation Administrati.on 2300E. DevonAvenue DesPlaines, IL 60018 Telephone: Facsimile: Electronic Mail:

Exhibit 847-294-7313 847-294"7498 briana.martino@faa.gov 

### Doc11ment l Final Notice ofProposed Civil Penalty and USPS Certified Mail Tracking 2 Respondent'sResponseto FNOPCP 3 Complaint

6 

### Date ofDoc11ment N11mber of l'a2es June 5, 2014 5 Received June 23, 2014 2 July I, 2014 7