SERVED MAY 28, 2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARING 

WASfflNGTON, D.C. 

OFFICE OF HEARINGS - ; ^^i:;^ :n,iU:\l 

IN THE MATTER OF 

CITY OF BRIDGEPORT, CONNECTICUT, 

Respondent. 

DOCKET NO. CP09NE0001 

(Civil Penalty Proceeding) 

DMS NO. FAA-2009-0977 

ADMINISTRATIVE LAW JUDGE'S ORDER DENYING 

COMPLAINANT'S MOTION FOR DECISION 

The Complainant filed a motion on May 11, 2010, asking for a 

decision in its favor on the merits of the case as well as the amount of the 

civil penalty to which it claims it is entitled. The case is scheduled for a 

hearing on June 10, 2010. The substance of the case is the Federal Aviation 

Administration's claim that a civil penalty in the amount of $72,000 should 

be imposed on the Respondent, the City of Bridgeport, Connecticut (City) 

because the condition of Sikorsky Memorial Airport, which the City owns 

and operates, was in violation of the Federal Aviation Regulations (FAR) 

(and the Airport Certification Manual provisions incorporated by reference 

into the FAR) when the FAA inspected the Airport in March 2007. 

The City has not specifically responded to the Complainant's motion. 

However, in a pre-hearing conference held on May 27, 2010, the City's 

attorney asked that the contents of another pleading it submitted - a request 

for reconsideration of an order imposing sanctions upon it for failing to 

provide material sought during pre-hearing discovery - be considered in 

reply to the pending dispositive motion. I shall do so. 

The Complainant's motion is grounded on two points. The first is that 

by failing to respond in a timely manner to the FAA's discovery requests, 

the Respondent has, in effect, admitted the allegations of the complaint to 
which those requests were directed. It is true, as the Complainant says, that 

an administrative law judge is entitled under the Procedural Rules to rule 

that a party failing to provide discovery material and that ignores an order 

compelling it to do so may be deemed to have admitted the facts that would 

have been elicited if it had so responded. But that is only one of the 

sanctions that may be chosen under 14 C.F.R. §13.220(n). It was my 

decision to go a different route and chose another sanction, precluding the 

Respondent from introducing evidence on its own behalf and on the merits 

at the hearing. I continue to believe that the sanction I chose was the proper 

one, all things considered. Other things being equal, I am very reluctant to 

issue a decision on the merits in one of these civil penalty cases without 

ascertaining that the FAA can present a prima facie case and without giving 

the adverse party the opportunity for cross-examination of the FAA's case. 

These are, in my judgment, essential elements of due process, and they 

should not be lightly dispensed with on a point of pleading. 

The FAA's second ground for its motion deals with the Respondent's 

failure to set forth any affirmative defenses in its answer. The Rules of 

Practice do obligate a Respondent to "specifically state any affirmative 

defense that the respondent intends to assert at the hearing." 14 C.F.R. 

§ 13.209(d). The answer filed by the City in this case denied the allegations 

of the complaint that set forth grounds for believing that the City had 

violated the Federal Aviation Regulations and the terms of its own Airport 

Certification Manual. The City was given the opportunity to, and did, set 

forth its position at length during the pre-hearing conference of May 27, 

2010. Hence, the Complainant is on notice of the (truncated) case it must 

meet at the hearing. The purpose of the technical rules of pleading, which 

the Complainant has invoked, is to give notice to the adverse party. The 

FAA has had ample notice of the Respondent's position. 

Here, again, I am reluctant to deprive the Respondent of any 

semblance of a hearing on the basis of what appear to be extremely technical 

arguments based on the detailed rules of pleading. 
For these reasons, the motion of the Complainant for a decision in its 

favor on the merits as well as on the issue of quantum is denied. 

IT IS SO ORDERED. 

Isaac D. Benkin 

Administrative Law Judge 
; 

FAA Docket No. CP09NE0001 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

ONE COPY 

Honorable Bill Finch, Mayor 

City of Bridgeport, Respondent 

City Hall Annex 

999 Broad Street 

Bridgeport, CT 06604 

Mark T. Anastasi, Respondent's Counsel 

City Attorney, City of Bridgeport 

999 Broad Street 2"'' Floor 

Bridgeport, CT 06604-4328 

TEL: 203-576-8082 

FAX: 203-576-8252 

The Honorable Isaac D. Benkin, 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

TEL: Attorney 202-366-2139 

Legal Assistant 202-366-2132 

FAX: 202-366-7536 

Richard G. Kascak, Jr. 

Associate City Attorney 

Office of the City Attorney 

999 Broad Street, 2"" Floor 

Bridgeport, CT 06604-4328 

TEL: 203-576-3928 

¥AKi 203-576-8252 

John R. Dormelly, Complainant's Counsel 

Office of the Regional Counsel, ANE-7 

New England Region 

Federal Aviation Administration 

12 New England Executive Park 

Burlington, MA 01803-5299 

TEL: 781-238-7043 

FAX: 781-238-7055