UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

IN THE MATTER OF: 

CLEAR DAY AVIATION, INC. 

Respondent 

Wednesday, 

February 10, 2016 

FDMS No. 

FAA-2015-2439 

1 

The teleconference convened, pursuant 

to notice, at 2:30p.m. 

BEFORE: 

THE HONORABLE J. E. SULLIVAN, 

Administrative Law Judge 

·-

OR\G\NAL 

(202) 234-4433 

2 5 20!6 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
APPEARANCES: 

On Behalf of the Complainant: 

ZACHARY M. BERMAN, ESQ. 

of: Office of Regional Counsel, 

Eastern Region 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

718-553-3258 

zachary.berman®faa.gov 

On Behalf of the Respondent: 

H. BRUCE BRANDON, ESQ. 

of: Clear Day Aviation, Inc. 

3439 South Aviation Drive 

Burlington, North Carolina 27215 

336-358-6300 

hbrucebrandon®gmail.com 

NEAL R. GROSS 

2 

(202) 234-4433 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
3 

1 P-R-0-C-E-E-D-I-N-G-S 

2 (2:31p.m.) 

3 JUDGE SULLIVAN: Okay, we ' re on the 

4 record in the matter of Clear Day Aviation, Inc. 

5 This is Docket Number FAA-2015-2439. Today is 

6 Wednesday, February 10, 2016, and the parties 

7 have convened, by telephone, for a Rule 16 

8 litigation scheduling conference. 

9 The Complainant, the Federal Aviation 

10 Administration, which I '11 hereinafter referred 

11 to by its initials, the FAA, is represented by 

12 its Attorney of Record, Mr. Zachary M. Berman. 

13 The Respondent, Clear Day Aviation, Inc., is 

14 represented by its Attorney of Record, Mr. H. 

15 Bruce Brandon. 

16 I'll simply note that the last ordered 

17 issued in this case is dated January 11, 2016. 

18 That was an order setting a new deadline to file 

19 the Rule 26-F jointly proposed discovery plan and 

20 continuing the Rule 16 litigation scheduling 

21 conference. 

22 Thereafter, on February 3rd, 2016, the 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
4 

1 parties filed a proposed joint 

2 scheduling/discovery plan, and this morning there 

3 was a joint request by the parties to postpone 

4 the conference from the originally scheduled time 

5 of 1:30 p.m. Eastern Time to 2:30p.m. Eastern 

6 Time, today, which was certainly acceptable to 

7 this Court, and granted the informal email to 

8 both counsel by the Office of Hearings, its 

9 attorney staff. 

10 So let's just chat, very briefly. Mr. 

11 Berman, I'll address this, first, to you. We had 

12 originally continued this matter because the 

13 parties thought that the matter might settle. 

14 I'm presuming, perhaps, incorrectly that because 

15 you filed the joint discovery plan that you wish 

16 to proceed to trial, at this point? 

17 MR. BERMAN: No, actually, we're still 

18 discussing settlement. We just submitted the --

19 had this conference coming up and we hadn't 

20 resolved 

21 case. 

22 I 

(202) 234-4433 

still haven't totally resolved the 

think we're in 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 

agreement on 

(202) 234-4433 
5 

1 principle, it's just the terms of settlement, 

2 which the FAA is drafting up a settlement 

3 proposal and we're going to present, I hope to 

4 present it within a week or two to Mr. Brandon 

5 and Clear Day, and I'm pretty confident that we 

6 should be able to settle the case within the next 

7 couple of weeks. 

8 JUDGE SULLIVAN: Okay. Mr. Brandon, 

9 do you have anything to add, or correct, to that 

10 general summary? 

11 MR. BRANDON: No, Your Honor. We are, 

12 obviously, as Mr. Berman, I think, would also 

13 like to get it settled. And the FAA is going to 

14 do an enforcement policy and I think Mr. Berman's 

15 hands have been somewhat tied by the bureaucracy, 

16 until that enforcement policy has been completely 

17 revised, but he's waiting on guidance from them, 

18 from up on high. 

19 But we, pretty much, I think, we agree 

20 on everything. Of course, the proof in the 

21 pudding is to see what's there, but we're 

22 optimistic that there will be a resolution, by 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
6 

1 agreement. 

2 JUDGE SULLIVAN: Well, let me stay 

3 with you, then, Mr. Brandon, for the next 

4 question, then. Would your client be more 

5 interested in simply having another prehearing 

6 status conference set, or does your client want 

7 to have trial set right now? 

8 MR. BRANDON: We would much prefer to 

9 have it resolved without a trial, Your Honor. 

10 JUDGE SULLIVAN: Okay. Mr. Berman, 

11 would you be amenable to simply setting this back 

12 on the calendar for a prehearing status 

13 conference and reserving all the parties' 

14 suggested dates litigation and discovery, at this 

15 point? 

16 MR. BERMAN: Yes. Yes. 

17 JUDGE SULLIVAN: Yes, okay. When, Mr. 

18 Berman, do you think it would work to have 

19 another prehearing status conference? And, 

20 essentially, what I'm looking at is, hopefully, 

21 setting it out to a point where the parties can 

22 finish settlement discussions, at least for the 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
7 

1 time being, and if you can reach settlement, have 

2 that done before the next party conference. When 

3 do you think that might be? 

4 MR. BERMAN: I think, realistically, 

5 we should be able to resolve this matter by the 

6 end of February. 

7 JUDGE SULLIVAN: Okay. 

8 MR. BERMAN: So I would suggest to 

9 having them in early March, a conference. 

10 JUDGE SULLIVAN: Well, I have, as you 

11 know, from an earlier conference today, I have 

12 some time open on February -- I'm sorry, March 

13 2nd, 2016. Would that be available, or would you 

14 prefer to push to push this out a little longer? 

15 MR. BERMAN: March 2nd will be fine, 

16 I'd say. 

17 JUDGE SULLIVAN: Okay. Mr. Brandon, 

18 what about you, would some time on Wednesday, 

19 March 2nd, 2016 work for your calendar? 

20 MR. BRANDON: Yes, ma'am. If we have 

21 some flexibility, I might be traveling that day. 

22 

(202) 234-4433 

JUDGE SULLIVAN: Okay. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
8 

1 MR. BRANDON: But I can, certainly, in 

2 between, you know, getting it authorized, be 

3 available for that time. But I may not --

4 JUDGE SULLIVAN: Well, we could 

5 MR. BRANDON: But I may not travel at 

6 all. I may not be traveling at all, but I'm not 

7 sure yet. 

8 JUDGE SULLIVAN: Okay. Do you want to 

9 simply choose a different day to make your life 

10 less complex? 

11 MR. BRANDON: Let me just one second, 

12 Your Honor, if you would? 

13 JUDGE SULLIVAN: Okay. 

14 MR. BRANDON: I think Monday, March 

15 7th, there would be no conflict then. 

16 JUDGE SULLIVAN: Okay. Could I 

17 MR. BRANDON: Would that work? 

18 JUDGE SULLIVAN: Yes, could I ask you, 

19 if you have a particular time? 

20 MR. BRANDON: Oh no, ma'am, whatever 

21 suits Mr. Berman is fine with me. 

22 

(202) 234-4433 

JUDGE SULLIVAN: Okay. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 

Mr. Berman, 

(202) 234-4433 
9 

1 I'm looking in the afternoon of my calendar, 

2 because I have another matter in the morning. 

3 Would the afternoon work for you? 

4 MR. BERMAN: It would, which day is 

5 that, March --

6 JUDGE SULLIVAN: It's Monday, March 7, 

7 2016. 

8 MR. BERMAN: Yes, that would work. 

9 JUDGE SULLIVAN: Okay. Let's plan on 

10 2 o'clock in the afternoon on March 7, 2016. And 

11 then, folks, if you have not reached a 

12 settlement, but you think it's imminent and you 

13 want to postpone this particular conference, 

14 again, please feel free to contact my attorney 

15 staff, or my new judicial staff assistant, Ms. 

16 Brown, and they can certainly relay a joint 

17 request to me and we can take care of that as 

18 easily as we took care of the request this 

19 morning. 

20 So you would not necessarily need to 

21 appear if you get a joint request in to postpone 

22 for a little while longer, if needed. You do 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234·4433 
10 

1 need to appear, however, if there's been no 

2 continuance and no settlement. 

3 So I will, potentially, look forward 

4 to talking with you both on March 7, 2016, at 

5 2:00 p.m. Eastern Time, or in the alternative, 

6 receiving paperwork from you that resolves the 

7 case. 

8 With that, on behalf of the FAA, Mr. 

9 Berman, is there anything else we can take up for 

10 your client today? 

11 MR. BERMAN: No, Your Honor. 

12 JUDGE SULLIVAN: Okay. Mr. Brandon, 

13 same question to you, sir. 

14 MR. BRANDON: No, ma'am. 

15 JUDGE SULLIVAN: Thank you, both, and 

16 I wish you the best of luck in your private 

17 negotiations. With that, we can go off the record 

18 and I wish you all a good day. Thank you. 

19 MR. BERMAN: Thank you. 

20 MR. BRANDON: Thank you, Your Honor. 

21 (Whereupon, the above-entitled matter 

22 was concluded at 2:39p.m.) 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
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Washington DC www.nealrgross.com 
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Neal R. Gross and Co., Inc. 

Washington DC 

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www.nealrgross.com 
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C E R T I F I C A T E 

This is to certify that the foregoing transcript 

In the matter of: Clear Day Aviation, Inc. 

Before: DOT/OH 

Date: 02-10-16 

Place: teleconference 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

Court Reporter 

NEAL R. GROSS 

(202) 234·4433 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE .• N.W. 

WASHINGTON. D.C. 20005·3701 www .nealrgross .com