08/11/2014 14:23 8472947498 FAA GLRC 

SERVED: August 11, 2014 

U.S. DEPARTMENT OFTRANSPORTION 

OFFICE OF HEARJNGS 

WASHINGTON, D.C. 

TN THE MATTER OF 

Christopher McCann. 

DMS No. 2014-0405 

Agency Case No. 2013-GL-15-0056 

Complainant's Motion to Dismiss Respondent's Request for Hearing. 

or, in the Alternative, 

Complainant's Motion to Deem Allegations Admitted arid 

Motion for Judgment on the Pleadings or, 

in the Alternative, Motion to Limit the Issues at Hearing to Sanction 

PAGE 02/22 

NOW COMES the Complainant, the Federal Aviation Adm.ini.stration (herei.naftcr 

"FAA" or "Agency", by counsel, and pursuant to the Rules of Practice set forth in 14 C.F .R. Part 

13, Subpart G, of the 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 for judgment on the pleadings or, in the alternative, an Order limiting the issues at 

hearing to sanction. In support of its motions, the Agency states as follows: 

FACTS 

1. On June 5, 2014, the Agency issued a Final Notice of Proposed Civil Penalty (FNOPCP) 

to Respondent for a violation of 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. 
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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 am requesting a formal 

hearing because aspects of the 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 docket clerk not later than 15 days after Respondent received the 

FNOPCP. See 14 C.F.R. !3.16(g)(2)(ii). Therefore, the hearing request was required to 

be filed with the 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 later than 30 days after service oHhe complaint. 

7. Moreover, "failure to file an answer without good cause shall be deemed an admission of 

the truth of each 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 

"Respondent must file a written Answer or motion within. thirty (30) days after service of 

the Complaint ... [and] failure to ·me an Answer without good cause is deemed an 

admission of each allegation in the Complaint ... " 

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9. Based on the foregoing, Respondent wa$ required to file his answer no later than July 31, 

2014. 

1 Q_ To date, the Respondent has failed to :flle an answer to the Agency's Complaint. 

ARGUMENT 

I. Motion to Dismiss Respondent's Request for Hearing 

Respondent failed to properly perfect his request for hearing pursuant 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 of a letter but must be dated and signed by the person requesting 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 than June 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 of Proposed Civil 

Penalty which was issued on April 10, 2014. See Exhibit A-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 in this matter. See .Exhibit A-2. 

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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 hearing because 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 submit his 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 on the Pleadings, or in tbe altenrative; to Limit Heating 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 that a respondent shall file an answer to 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 in a timely manner. The necessity to file 

a timely answer is not an. option for a respondent but 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 

shall be deemed an admission of the truth of each allegation contained in the complaint'' Again, 

the regulations provide for 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 of time 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, 

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2014, by certified mail. Respondent's lack of compliance with the established regulations makes 

the Agency a hostage of the Respondent's whim in that the Agency is unable to develop a trial 

strategy or commence any pretrial preparation because it does not know what proof it must put 

on or refute without an answer to the allegations on file. 

Under the above circumstances, and in light of the Administrator's precedent, See, e.g., 

Jn the Matter ofDona/d M Missirlian. FAA Order No. 97-19 at 1 (May 22, 1997), In the Matter 

o.fBarnhill, FAA Order No. 92-32 at 6, (May 5, !992), In The Matter of Michael Kilduffi, 2011 

WL 1483974 (April18, 2011), which found no error with a law judge granting a motion on the 

pleadings when an answer to a complaint is untimely filed (coupled with the absence of good 

cause for the failure of a Respondent to timely file an answer), the allegations in the present 

complaint should be deemed 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 of the proposed san.ction may be found. 

WHEREFORE, the Administrator hereby respectfully requests 

(a) the issuance of an Order dismissing Respondent's request for a hearing; 

(b) the issuance of an Order granting the Agency's motion deeming the admission by the 

Respondent of the truth of the allegations contained in the complaint; 

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(c) judgment on the pleadings be entered in favor of the Agency or, 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 

2300 E. Devon Avenue 

Des Plaines, IL 60018 

Telephone: 

Facsimile: 

Electronic Mail: 

Exhibit 

847-294-7313 

847-294" 7498 

briana.martino@faa.gov 

Doc11ment 

l Final Notice of Proposed Civil Penalty and 

USPS Certified Mail Tracking 

2 Respondent's Response to FNOPCP 

3 Complaint 

6 

Date of Doc11ment N11mber of 

l'a2es 

June 5, 2014 5 

Received June 23, 2014 2 

July I, 2014 7