In The Matter Of: · 

SERVED NOVEMBER 29, 2012 

U.S. DEPARTMENT.OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

) 

) Docket No. FAA-20 12-0.4 77 

LIBERTY 

FOUNDATION, INC. 

) 

) 

) 

) 

·Case No. 2011-GL-03-0070 

Respondent 

ORDER SETTING VENUE IN ATLANTA, GEORGIA 

On June 21, 2012, the Federal Aviation Administration (FAA) filed a Complaint charging 

the Respondent; Liberty Foundation, Inc., with violating three Federal Aviation Regulations 

(FAR), i.e., 14 C.P.R.§§ 91.405(b), 91.407(a), and 91.7(a). As part of this Complaint filing, the 

F AArequested the hearing venue to be set in Chicago, Illinois. · 

On July 13,2012, the Respondent filed the Respondent's Suggestion of Hearing 

Location, in which the Respondent objected to Chicago, Illinois as the venue location, and · 

recommended instead Atlanta, Georgia. 

On July 17, 2012, the FAA filed the Administrator's Response to Respondent's 

Suggestion of Hearing Location. 

On July 18,2012, the Respondent filed the Respondent's Reply to the Administration's 

Opposition to Respondent's Suggestion of Hearing Location. 

On September 20, 2012 the parties appeared by telephone for a Rule 16 Litigation 

Scheduling Conference. At that time, the parties generally addressed the disputed issue of venue. 

9/20/12 TR at 27-37. The parties were directed to file supplemental materials on or before 

October 24, 2012, and to reappear on November 2, 20.12 for oral argument on the disputed issue. 

On September 24, 2012, an Order Setting Litigation Dates and Procedures was filed, which 

codified the venue deadlines orally provided at the September 20,·2012 Rule 16 Conference. 

On Oqtober 23, 2012, the Respondent filed the Respondent's Supplemental Materials on 

the Venue Issue. 

On October 24, 2012, the FAA filed the Administrator's Supplemental Materials on the 

Disputed V eriue Issue. 

On November 2, 2012, the parties convened by telephone for the scheduled Venue 

Motion Conference, and presented oral arg_ument on the disputed venue issue. 
A. Legal Standards for Setting Venue 

While both parties presented factual arguments in support of their proposed hearing 

venue requests, neither provided any legal authority or discussion in their materials. 

The Rules of Practice, 14 C.F.R. part 13, subpart G, govern the setting of venue in FAA 

civil penalty proceedings. The authority to set the location of the hearing is vested solely in the 

administrative law judge, after considering any suggestions by the parties. 14 C.F.R. § 13.221(b); 

See also, 55 Fed. Reg. 27548, 27561 (discussion of final rule July 3, 1990, "Location of 

Hearing"). In setting venue, the administrative law judge is not ruling for or against a party, but 

rather utilizing judicial discretion in considering the factors contained in Section 13.221 (b), the 

Administrative Procedure Act (APA), and any other factors deemed relevant in each individual 

case. 

14 C.F.R.§ 13.221(b) provides in part: 

The administrative law judge to whom the proceedings have been assigned shall 

set a reasonable date, time, and location for the hearing ... The administrative 

law judge shall give due regard to the convenience of the parties, the location 

where the majority of the witnesses reside or work, and whether the lqcation is 

served by a scheduled air carrier. 

Section 554(b) of the Administrative Procedure Act also provides in part: "[i]n fixing the 

time and place for hearings, due regard shall be had for the. convenience and necessity of the· 

parties." 5 U.S.C. § 554(b). 

The Rules of Practice under 14 C.F.R. part 1'3, subpart G, do not specifically define the 

factors involved in considering the convenience of the parties. Fortunately, there is ample 

guidance on the issue in federal caselaw. When considering the convenience of the parties for the 

purpose of determining venue, many private and public interest factors may be considered. 

Envtl., Safety & Health Consulting Servs., Inc. ·v. Magnablend, Inc. 2012 U.S. Dist. Lexis 

161940 (November 9, 2012)(both public and private factors should be considered in addressing 

the convenience of the parties); In re Volkswagon of America, Inc., 371 F.3d 201, 203 (5th Cir. 

May 18, 2004)(both public and private factors considered); and Baicker-McKee et al., Federal 

Civil Rules Handbook, §2.14 (Venue) and§ 2.15 (Forum.Non Conveniens)(19th ed. 2012)(public 

and private factors identified and discussed). 

The factors specified in 14 C.F.R. § 13.221 were intended to be "flexible enough to avoid 

hardship to either the respondent or the witnesses involved in a particular case." 54 Fed. Reg. 

11914, 11916 (disposition of comments Mar. 22, 1989, "Location of Hearings"}. 

In addition, any other factors deemed relevant by the administrative law judge may also 

be considered, in order to address the needs of the parties, the needs' of the witnesses involved, 

and to avoid hardship. 54 Fed. Reg. 11914, 11916 (disposition of comments Mar. 22, 1989, 

"Location of Hearings"). See, e.g., Baicker-McKee et al., Federal Civil Rules Handbook, §2.14 

(Venue) and§ 2.15 (Forum Non Conveniens)(19th ed. 2012)(private factors in considering venue 

may include the following: l) easeofaccessto evidence; (2) the cost for witnesses to attend trial; 

Page 2 of 10 
(3) the availability of c~mpulsory process; and ( 4) other factors that might shorten trial or make 

it less expensive); See, also, 55 Fed. Reg~ 27548, 27561 (discussion of final rule July 3, 1990) 

("If the place where the incident occurred is a relevant factor ... either party is free to raise that . ") . . ISSUe... . 

. Although not required by the Rules of Practice, in a venue dispute the parties "are 

encouraged to explain or support their suggested venue location so that the administrative law 

judge is aware of these considerations at the time of the [venue] determination." 55 Fed. Reg. 

27548, 27561 (discussion of final rule July 3, 1990, "Location of Hearing"). 

B. Undisputed Facts 

. It was undisputed that the Resp.ondent owned and operated a World War II B-1 7 G 

Boeing aircraft registered as N-390TH. On or about February 24, 2011,.the Respondent· 

performed maintenance on this B-17 G aircraft in the Georgia, Atlanta area. During oral 

argument, the FAA asserted that the Respondent had violated 14 C.F .R. § 91.405(b) once on 

February 24, 2011 in performing thts maintenance. The FAA also asserted that the Respondent 

had violated 14 C.P.R. § 91.407(a) once, but did not specify in it.s Complaint where or on what 

date. 

After February 24, 2011 the Respondent flew the B-17G aircraft at least 12 or m0re 

times, to various parts of the country~ During oral argument; the FAA asserted that the 

Respondent had viplated 14 C.F.R. § 91.7(a) at least 12 or more times after February 24, 2011. 

The parties agreed that the arrival/departure ·locations of at least eleven ( 11) or more of these 

flights were not relevant to the issue of venue. · 

On June 13, 2011, the Respondent performed additional maintenance on the B-17 G 

. aircraft in the Chicago,. Illinois area. That same day, after the June 13, 2011 maintenance, the 

Respondent again operated the B-17 G ·aircraft. There was an in-flight fire on the aircraft during 

the June 13~ 2011 flight. This resulted ip. an emergency landing of the aircraft in the Chicago, 

Illinois area. The aircraft was destroyed by the fire. · 

. It was undisputed that after the June 13, 2011 airplane fire and destruction of the aircraft, 

both the FAA and the NTSB (National Safety Transportation Board) conducted investigations in 

the Chicago, Illinois area. At one point, the FAA also engaged in mediation discussions with the · 

Respond.ent at the FAA Regional office located in the Atlanta, Georgia area. 

The FAA intends to call a total of five witnesses.'Three of these witnesses (two experts 

and one lay witness) are located in the Chicag~, Illinois area. The other two witnesses (one 

expert and one lay witness) are located in Colorado, and New Mexico, respectively. The FAA 

witnesses located in Colorado and New Mexico would need to fly to the venue location, whether · 

it was set in Chicago, Illinois or Atlanta, Georgia. 

The Respondent intends to call a total of six (6) witnesses (all experts). Five (5) ofthe six 

( 6) witnesses were located in the Atlanta, Georgia area. The other witness was located in New 

Smyrna Beach, Florida, which was located within a four hour automobile drive from Atlanta, 

Georgia. 

Page 3 of10 
C. · Brief Discussion of the Parties' Primary Arguments 

All of the parties' factual argulllents, both oral and written, were considered. This· 

. discussion focuses Qnly on the parties' primary arguments. 

1. Convenience of the Parties 

As previously noted herein, pursuant to 14 C.P.R.§ 13.221(b), the convenience ofthe 

parties is a primary factor in cQnsidering venue. Federal caselaw provides guidance on the 

multiple factors that may be reviewed in consiqering the convenience of the parties. Four ( 4) of 

those factors are discussed herein: (a) the· ease of access to evidence; (b) th.e cost of attendance 

for willing witnesses; (c) other factors that might shorten the hearing 'or make it less expensive; 

and (d) whether the place where the incident occurred is a relevant factor. · 

(a) The ease of access to evidence. Most ofthe hearing evidence in this case will 

likely be testimonial, with some doctm1entary exhibits introduced (e.g., aircraft logs, 

maintenance records, registration certificates, etc). The parties did not note that any documentary 

evidence would be difficult to obtain, or related to the issu.e of venue setting. It appeared 

undisputed that all the identified witnesses were willing to·t~stify. 

Both parties argued for venue based on the ease of access to their named live witnesses 

who were physically located in their preferred venue location. Ror the FAA, that meant easier 

access to the three witnesses physically located in Chicago Illinois. For the Respondent, that 

meant easier access tO its five witnesses physically located·in Atlanta Georgia. The respondent 

also argued that Atlanta, Georgia was n1ore easily accessible to its sixth witness as well. · 

In essence, the ease of access factor demonstrates that six ( 6) of the eleven (11) named 

witnesses ide1itified by the parties live in or near Atlanta, Georgia. Only three (3) ofthe.eleven 

(II) witnesses live in Chicago, I.Uinois. Two (2) of the witnesses will need to travel long distance 

regardless of whether the venue is set in Chicago or in Atlanta. Taken as a whole, ease of access 

to the majority of live witnesses is in the Atlanta, Georgia area. · 

(b) The cost of attendance for willing witnesses. The parties· .tiled ample material on 

(he cost of travel for their witnesses. 

Both the FAA and Respondent have argued, with supporting documentation, that it will 

be expensive for them to travel to the other's proposed location. A large port~on ofthat expense 

comes from the cost of attendance for witnesses. (FAA's October 24, 2012 Supplemental 

Materials; Respondent's .October 23,2012 Supplemental Materials.) 

As noted previously herein, the .FAA plans to call five witnesses, three of whom are 

located in the Chicago, Illinois area. The FAA's two other witnesses, located in Colorado and 

N.ew Mexico, respectively, will need to travel regardless of whether the venue is set in Chicago 

or Atlanta. The FAA did not de~onstrate that there was any appreciable difference in the travel 

costs for the two."traveling" witnesses, should venue be set in Chicago, Illinois rather than in . 

Page 4 of 10 
Atlanta, Georgia~ 1 The FAA also did not assert that it would be paying any greater cost in 

witness time orper diem for any of its witnesses should venue be set in Atlanta instead of 

Chicago. 

The FAA asserted that the total cost to transport its three Chicago based witnesses to 

Atlanta will be $3,894. (FAA's October 24, 2012 Supplemental Materials, "Total E?Cpenses 

Chart") In calculating expenses, the FAA also asserted, without explanation, that these th.ree 

witnesses, as well as the other two "traveling" witnesses, would all stay a minimum 'of four 

nights and five days in Atlanta, Georgia (!d). While no doubt all theF AA witnesses are 

important, the entire hearing is scheduled to last only three (3) days.· See, September 24, 2012 

Order Setting Litigation Dates and Procedures. Based on general litigation history, it seems 

highly unlikely that the FAA would need all five witnesses (3 expert and i lay) to remain. in 

attendance after the presentation of its own case-in-chief. It must be noted that the FAA appeared 

to provide the most expensive version of what travel costs might be needed for its witnesses. 

Nevertheless, for purposes of this dispute, the FAA'.s costs were accepted. 

The Respondent plans to call six witnesses, five of whom are located in the Atlanta, 

Georgia area .. 'the Respondent's sixth witness is located in New Smyrna Beach, Florida, which 

. the Respondent noted was only a four-hour drive from Atlanta, Georgia .. 

The travel. cost information provided by Respondent was not as detailed as the FAA's 

information. The Respondent is encouraged to be more detailed in the future. Fortunately, a 

price comparison can be made using the following: a) the median airline ticket price of $312 

provided by Respondent for travel from Atlanta to Chicago (Respondent's October 23, 20 12 

Supplemental Materials); and b) the hotel and per diem figures provided by the FAA for its 

Colorado based Witness of$171 and $71 per day, respectively (FAA's October 24,2012 

Supplemental Materials, "Per Diem"). · 

Applying these figures to the Respondent's six witnesses; using the same four night/five 

day schedule used by the FAA, gives a total travel cost for the Respondent of $8,106 without 

including any ground travel costs. 2 It should be pointed out that this $8, 1 06 amount does not 

reflect the total expenses likely to be incilrred by Respondent's New Smyrna Beach, Florida 

witness. The Respondent did not provide any data for such ground or air travel from New 

Smyrna Beach to Atlanta. Given the fact that the Respondent would need to cover that cost if 

the venue was set in Atlanta, it was not included. 

Based on the raw numerical data submitted by the parties, it ~s clear the Respondent 

would'bear the greater cost of willing witne~s travel, should the venue be set in Chicago, Illinois' 

instead of Atlanta, Georgia (i.e., $8,106 Respondent witness travel cost to Chicago, versus 

$3,894 FAA witness travel cost to Atlanta). The Respondent would pay, at minimum, $4,212 

more than the.FAA for travel costs if venue was set in Chicago. As a result, this factor weighed. 

in favor of Atlanta, Georgia for venue. 

1 The FAA noted that its cost to transport its Colorado and New Mexico witnesses to Atlanta weuld be $2,705. It 

did not identify what cost it would need to p~y to transport these two witnesses to Chicago. . . . 2 The Respondenfs travel costs for six witnesses, from Atlanta to Chicago,. were calculated as follows ($312 x 6 

witnesses).+ (($171/night x 4 nights) x 6 witnesses)+ (($71/day x 5 days) x6 witnesses). No taxi or rental·car costs 

were included in this formula. · 

Page 5 of 10 
(c) Other factors that might shorten trial or make it less expensive. The parties 

also discussed the cost of travel for- 'their counseL · 

In some circumstances, but not all, the ·location and convenience of counsel has been 

included as a factor in the convenience of the parties. See, Liquor Salesmen's Union v. NLRB, 

664 F.2d 1200, 1205 (D.C. Cir. 1981) (factors considered in trahsferring venue under 28 U.S. C. 

§ 2112); But see, In re Volkswagon AG; Volkswagon of America, Inc., 371 F.3d 201 at 203 

(rejecting location and convenience of counsel in a convenience of the parties analysis under 28 

U.S.C. § 1404(a)) . 

. The FAA asserted that setting venue in the Atlanta, Georgia area would create "financial 

challenges to the Administrator." This was because ofthe inherent travel expenses that would 

occur if the FAA sent its .five witnesses. and two Chicago, Illinois FAA attorneys to the Athinta, 

Georgia area to litigate the case. The .FAA then provided travel cost information for two 

attorneys. (FAA's.October 24,2012 Supplemental Materials).· 

While it is certainly the choice of a party to develop a litigation strategy that includes ·the 

use of multiple attorneys, such litigation choice should not automatically warrant greater cost 

weight in the consideration of venue. It was noteworthy that the FAA did not provide any 

persuasive explanation as to why two FAA attorneys were required to litigate this civil penalty 

proceeding.3 The FAA also did not explain why, if multiple FAA attorneys were necessary to try 

this case, a partnership with local FAA Atlanta counsel (which would reduce FAA Chicago 

cou.rlsel travel costs) would not serve equally well. As a result,.consideration ofthe FAA's 

Chicago counsel travel expenses was based only on the cost of travel for one ( 1) FAA attorney. 

In contrast to the FAA's multiple attorney strategy, the Respondent argued that it only 

had one attorney, and that its' attorney was acting pro bono. 1112/12 TR at 35 (lines 20-24), 36 

,(lines 7-8). It was undisputed that the Respondent's attorney was located in Miami, Florida, and 

would be required to travel in any event. However, the Respondent's attorney orally asserted 

that he plann~d to personally bear the brunt of all travel costs. The Respondent also argued --

without submitting any documentary evidence in· support of such argument -- that as a non-profit 

corporation it had no funds to support any litigation costs or travel costs. In addition, the 

Respondent argued that the FAA had more· resources,' and could more easily bear the financial 

burdens. of travel cost. 

. The Respondent's arguments of organizational financial hardship were not persuasive. 

As this administrative court noted during the November 2, 2012 oral argument, the fact that an 

. organization is incorporated as a charitable foundation does not automatically demonstrate 

institutional financial hardship, or a lack of organizational funds. In addition, the Respondent's 

attorney may choose to offerpro bono services .at his discretion to any client, for any number of 

reasons. Pro bono work, in and of itself, is not determinative of a client's financial status. 

Absent any proof of organizational financial status, the Respondent's arguments of financial· 

3 During oral argument, the FAA stated that the two Chicago attorneys had been working on the case for a total of 

fifteen (15) months. The FAA then explained that the case herein was a "separate issue" from the original case, 

which had been charged against the Respondent mechanic. The attorneys in Chicago had "studied" the case. 

11/2/12 TR at 20 (lines 14-25), 21 (lines 1-6). The FAA did not provide any further explanation as to why two 

attorneys were required to litigate the case herein. 

Page 6 oflO 
inability cannot be given serious weight. In addition, the argument that the FAA has a deeper 

pocket is not persuasive, particularly since the Respondent chose not to provide.any documentary 

information about the state of its own finances. A party asserting hardship must demonstrate it 

through an offer of reliable proof, as o.pposed to anecdotal argument. . 

Taking all matters into account, the cost to the FAA for attendance of one attorney at an 

Atlanta hearing location would be $1,635 (FAA's October 24, 2012 Supplemental Materials) 

while the cost to the Respondent for counsel travel would be approximately $1,545, including 

ground transportation (Respondent's October 23, 2012 Supplemental Materials).4 This 

Respondent travel cost of $1 ,545 to Atlanta, whether borne by the Respondent or by 

Respondent's counsel, would he necessary in any event. 

In contrast, assuming venue in Chicago, the FAA attorney would have no travel cost 

burden and the Respondent col.:lllsel 's cost would be approximately $1,782, including ground 

transportation. 5 Thus, the Respondent's costs for travel to Chicago, instead of travel to Atlanta, 

would result in only an increase by an amount of approximately $237. 

Clearly, the FAA bears the greater cost of counsel travel (i.e., $1,545 v. $327). 

Nevertheless, while the convenience of counsel weighs in favor of venue in Chicago, Illinois, the 

overall convenience of the parties still weighed towards holding the hearing in Atlanta, Georgia. 

(d) W,hether the place where the incident occurred is a relevant factor. 

The inquiry under this prong is whether where the alleged violations occurred is a 

relevartt'factor in setting venue. 

The FAA emphasized that on or about June 13, 2011, the B-17 G aircraft suffered an inflight fire, an emergency landing, and complete destruction just 6 to 7miles from the Aurora, 

Illinois Airport in the Chicago, Illinois area. Subsequently, both the FAA and the NTSB 

conducted investigations in the Chicago, Illinois-area. (July 17,2012 FAA Response to 

Respondent's Suggestion o.fHearing Location). 

The FAA did.not assert that there was any physical evidence located in Chicago (e.g., the 

destroyed aircraft, records, etc) that would require venue to be set in that area. The FAA also did 

not clearly demonstrate how much the June 13, 20i 1 Chicago, Illinois events were related to the 

alleged 14 + violations in its Complaint. .Based upon a review of all the materials and 

arguments, it appeared that the June 13, 2011 events would be utilized in large part to support 

and lend credence to the FAA's allegation that the Respondent failed to comply with FAA 

maintenance and operation requirements. It appeared undisputed that neither Chicago, Illinois 

nor Atlanta, Georgia was the "place where the incident occurred" for a majority of the alleged 

violations herein. · 

4 Respondent's cost= $338 median airfare+ $455 hotel'+ $252 per diem+ $150 hotel parking+ $300 car rental+ 

$ 50 carry-on luggage fee 

5 Respondent's cost= $487 median airfare+ $640 ho.tel + $355 per diem+ $300 car rental 

Page 7 oflO 
The record shows that the FAA is alleging that the Respondent committed one violation 

of 14 C.F.R. § 91.405(b) (regarding the maintenance of the aircraft) on or about February 24, 

2011 in or near Atlanta, Georgia (11/2/12 TR at 6, lines S-6; and at 14, lines 7-23). The FAA 

also alleges one violation of 14 C.F.R. § 91.407(a), which concerned the operation of the aircraft 

its unauthorized return to service, and defipient record entry following the February 24, 2011 

maintenance in Georgia, Atlanta. (11/2/12 TR at 14 (lines 24-25) and 15 (lines 1-6); FAA 

Compl. 4, ~). Additionally, the FAAis alleging "at least" 12 violations of 14 C.F.R. § 91.7(a) 

concerning the operation of the aircraft when the FAA alleges the aircraft was not airworthy. 

The parties agreed, however, that the arrival/departure locations of 11 of these 12 or more flights 

were not relevant to the issue of venue. Only one of these flights, the flight that ended in the 

destruction ofthe aircraft on or about June 13, 2011, was alleged to have taken place in Chicago. 

(1112112 TR at 15 (lines 14-18), and 16 (lines 11-21; Compl. 4, ~17; Answer 2, ~17). 

Taken as a whole, Chicago and Atlanta were each identified, respectively, as a "place of 

incident" for two of the 14 or more alleged violations. It was noteworthy .that neither party 

argued that venue in one location as opposed to the other would prevent its attendance at the 

hearing or violate its due process rights. See, Gerald W. Keller, FAA-2006-25869 (Dec. 5, 2006) 

(Order Setting Venue for Hearing) (venue set in Atlanta because "the scheduling of a hearing in 

Milwaukee means that there will be no hearing at all ... "). In addition, the FAA also 

acknowledged during oral argument that in an earlier meeting of the parties in the case herein, 

the parties had met in the Atlanta, Georgia area. Given consideration to all the facts, this factor 

appeared to be weighted equally for both venue locations. 

2. Location of the Witnesses 

Pursuant to 14 C.P.R. § 13.221(b), another primary factor for consideration in setting· 

venue is the location·· where the majority of the witnesses reside or work. This factor has already 

been discussed in detail, supra. In essence, there are three (3) witnesses located in Chicago, 

Illinois, one (1) witness located in New Mexico, one (1) witness located in Colorado, five (5) 

witnesses located in Atlanta, Georgia, and one. (1) witness located in New Smyrna Beach, 

Florida. 

In this case there was no location 'in which a majority (i.e., 6) of the witnesses lived or 

worked. However, the clear plurality (i.e., 5) of the 11 witnesses resided in the Atlanta, Georgia 

area. Thus, this factor weighs in favor of Atlanta, Georgia for the setting of venue. 

3. Service by a Scheduled Air Carrier 

Pursuant to 14 C.F .R. § 13.221 (b), another primary factor for consideration in setting 

venue is whether an area is serviced by a scheduled air carrier. Both parties agreed that a 

scheduled air carrier provided service to both Atlanta, Georgia and Chicago, Illinois. Thus, this 

factor weighed equally for both venue locations. 

Page 8 of 10 
. 4. Other Alleged Factors 

The FAA alleged that setting venue in Atlanta, Georgia would potentially prejudice the 

FAA's ability to adequately and knowledgably litigate the issues in the case. The FAA asserted 

that this prejudice might arise should the FAA management choose to transfer the case litigation 

to' FAA attorneys in Atlanta, Georgia, rather than pay the cost for' one or both of the FAA 

Chicago attorneys to travel. According to the FAA, such an elective management transfer of the 

case litigation to FAA attorneys in Georgia could result in a loss of attorney expertise, since the 

substitute FAA counsel would not be as familiar with the complexities of the case. (July 17, 

2012 FAA Response to Respondent's Suggestion of Hearing Location;· 11/2/12 TR at 22 (lines 1-

19), 23 (lines 12-25), 24 (lines l-5)). . · 

In order to show prejudice the FAA must first prove that the event causing the prejudice 

(I.e. the transfer of the case to different FAA office), will occur, and that the FAA should be 

deemed to suffer prejudice by that elective event. 

The FAA did not provide proof of either factor. Instead, the FAA has only argued that it 

is possible that the case might be transferred to the FAA's Southern R~gion Office if venue was· 

set in Atlanta, Georgia, and that it was possible that the representation might suffer as a result 

(11/2/12 TRat 22 (lines 9-10) and 24 (lines 3-5). It was noteworthy that the FAA did not assert 

that its FAA attorney employees located in Atlanta, Georgia were unable to handle complex 

litigation, or that such Atlanta FAA attorneys were not as highly competent as its FAA attorney 

staff working in the Chicago, Illinois area. The FAA simply argued that FAA counsel in Atlanta 

would not be as familiar with the case. 

There is no doubt that a newly assigned attorney would need to acquaint him or herself 

with the case. However, case re-assignment is riot a foreign concept or rare occurrence in the 

legal commU.nity. It should be noted that in many public agencies and private law firms 

throughout the country, attorneys are routinely reassigned cases set for litigation for a wide 

variety of reasons, without any loss of quality representation. 

The FAA has failed to make a compelling argument that an alleged loss of quality 

liiigation might occur in this case (if at all) if the case was reassigned to Atlanta FAA counsel. In 

addition, the FAA has also not demonstrated prejudice. IfF AA management chooses to reassign 

litigation of this case to another attorney, thi's decision is an elective decision. It must be 

presumed that management makes such a decision only after fully considering the consequences 

to the presentation of its case-in-chief. Case assignments or reassignments are a management 

prerogative, and should be deemed an internal litigation strategy choice by a party absent strong 

contrary proof. 

Taken as a whole, the FAA's argument of potential prejudice is not persuasive. The 

FAA's argument of "prejudice" was not given weight as a relevant factor in considering the 

setting of venue. 

Page 9 oflO · 
D. Conclusion 

Having reviewed the case file, all pleadings and motions, all relevant caselaw, statutes, 

regulations,· rules, l;Uld authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. Pursuant to 5 U.S.C. § 554(b),l4 C.F.R. § 13.22l(b), and all relevant caselaw and 

authority, venue in this matter is set in Atlanta, Georgia. 

2. The specific location of the Hearing in Atlanta, Georgia will be provided to the parties 

prior to the Hearing. 

Attachment: Service List 

Page 10 of 10 
SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration1 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl 000 

Ms. Adrianne Wojcik, Esq. 

Complainant's Counsel 

Office of the Regional Counsel 

Great Lakes Region, AGL-7 

Federal Aviation Administration 

2300 East Devon Avenue 

Des Plaines, IL 60018-4696 

TEL: 847-294-7109 

FAX: 847-294-7498 

Mr.' Stuart A. Goldstein, Esq. 

Respondent's Counsel 

Stuart A. Goldstein, P .A. 

9350 South Dixie Highway, lOth Floor 

Miami, FL 33156 

TEL: 305-670-1222 

FAX: 305~670-7065 

Judge J.E. Sullivan 

U. S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-:310) 

Washington, DC 20590 

'TEL: 202-366-2132 

FAX:· 202-366-7536 

ONE COPY 

FDMS No. FAA-2012~0477 

(Civil Penalty Action) . 

1 Servi~e was by ~.S. Mail. For service in person or by expedited courier, use the following address: Federa1 

Aviation Administration, 600 Independence Aven\}e, S.W.,Wilbur Wright Building-Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.