InTheMatter Of: U.S. DEPARTMENT OFTRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

BIRMINGHAMFLIGHT CENTER, INC. DocketNo. FAA-2014-0867 Judge J.E. Sullivan Respondent. 

## DEC 01

FAACaseNo. 2012S0090053
REQUEST TO SET MOTIONRESPONSE DEADLINE OnNovember 17, 2015, Respondent mailedto the Judge andhearing docket aMotionfor Sanctions againstthe FAA. Thatmotionrelates to communications between athird-party witness and FAA Aviation Safety Inspector (ASI) Yancey Rushton. Due to issues with Inspector Rushton's and the undersigned's availability, quickly responding to that motion is problematic. Ordinarily, this request would be filed as a motion to extend the response deadline. However, since Respondent has not properly served the FAA with its Motion, it is unclear that a response deadline exists. Accordingly, the FAA requests that the Judge set a response deadline of December 14, 2015. The rules ofpractice for these proceedings provide for service by personal delivery or mail. 14 C.P.R. § 13.211(b). The date ofservice is the date ofpersonal delivery or the mailing date. 14 C.P.R. § 13.2ll(d). Five days are added to any response deadline when service is by mail, rather than personal delivery. 14 C.P.R. § 13.211(e). The default response deadline for a motion is 10 days. 14 C.P.R.§ 13.218(d). Ifthe FAAhadbeen served viapersonal delivery, the deadline to respond would have beenNovember 27, 2015. Ifthe FAA hadbeen served by mail, the response deadlinewouldhavebeenDecember 2, 2015.


### 1Respondent's Motion concerns e-mails communications between Dr. Alan Long, a thirdparty witness, and Inspector Rushton. 

### See generally Respondent's Motion for Sanctions. In particular, Respondent's motion accuses the FAA ofhaving possession ofthese e-mails, but not disclosingthem. 

### See id This accusationis false andRespondent's motion appears to be based on suppositionrather than evidence, but properlyresponding to itwill require evidence, including a declaration from Inspector Rushton and possibly other FAA personnel. Due to Inspector Rushton's pre-existing travel schedule, a brisk response to the motion will be difficult, ifnot impossible, andthe undersigned's upcoming emergencyhearing schedule adds further difficulty. Inparticular, the undersigned received Respondent's motionvia e-mail onNovember 18, 2015 1 Inspector Rushton is currently stationed atthe Flight Standards District Office (FSDO) in Denver, Colorado. However, during the week ofNovember 16, 2015, Inspector Rushton was in the field performing inspections in Wyoming. This week, the week of November 23, 2015, Inspector Rushton is in Dallas, Texas, for three days oftraining, and the latter halfofthis week contains the Thanksgiving holiday. For practical purposes, the undersigned will not have a meaningful opportunity to review the situation with InspectorRushton and prepare a declaration until the week of November 30, 2015. On November 20, 2015, the National Transportation Safety Board (NTSB) issued a notice for an emergency hearing, to be held in Miami, Florida, from December 7-10, 2015. Accordingly, the undersigned anticipates that his availability to work on this matter will be extremely limited during the weeks ofNovember 30 and December 7, 2015. Had Respondent's motion been properly served on the FAA, the above-described circumstances would constitute a basis to extend the response deadline, and the FAA would

1Respondent's e-mail was on November 17, 2015, but itwas after close ofbusiness and after the undersignedhad leftthe office. 2

### move the court to extend the response deadline to December 14, 2015. This would be sufficient time for the undersigned to review the situation with Inspector Rushton after he is available and have a declaration prepared. Here, however, the Respondent did notproperly serve the FAA with the motion

- e-mail is not a proper method of service and there is no 'date of service' from which to count a response period. The FAA does not wish to simply ignore the improperly served motion, however. Accordingly, the FAArequests thatthe court set December 14, 2015, as the FAA'sresponse deadline for Respondent's motion.

'l

# :y-" Respectfully submittedthis_t.-_day ofNovember, 2015.

# ~~ON Attorney Office ofthe ChiefCounsel, Enforcement Division, Southern Team

3CERTIFICATE OF SERVICE I hereby certify that the foregoing Request to Set Motion Response Deadline was sent: original and one copy via certified mail to: Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2W1 000 one copy via Federal Express to: The Honorable J.E. Sullivan Administrative Law Judge Office of Hearings, M-20

U.S. Department of Transportation 1200 New Jersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 Paul R. Borth, Esq. Barnett & Borth, LLC 800 Waukegan Road, Suite 200 Glenview, IL 60025 facsimile: (815) 356-7042**dtMA~Mr** KIMBERLY HOBBS Management and Program Analyst NOV 2 3 2015J Dated 4