In The Matter Of: · 

### SERVED NOVEMBER29, 2012
U.S. DEPARTMENT.OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC
) ) DocketNo. FAA-2012-0.477 LIBERTY FOUNDATION, INC. )) ) ) ·CaseNo. 2011-GL-03-0070 Respondent

ORDERSETTINGVENUE IN ATLANTA, GEORGIA

On June 21, 2012, the Federal Aviation Administration (FAA) filed a Complaint charging the Respondent; Liberty Foundation, Inc., with violating three FederalAviationRegulations (FAR), i.e., 14 C.P.R.§§ 91.405(b), 91.407(a), and 91.7(a). As part ofthis Complaint filing, the FAArequestedthe hearing venue to be set inChicago, Illinois. · On July 13,2012,the Respondent filed the Respondent's Suggestion ofHearing 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 ofHearing Location. On July 18,2012, the Respondent filed the Respondent's Reply to the Administration's Opposition to Respondent's Suggestion

## ofHearing Location. On September 20, 2012 the parties appeared by telephone for a Rule 16 Litigation Scheduling Conference. Atthat time, the parties generally addressed the disputed issue ofvenue. 9/20/12 TR at 27-37. The parties were directed to file supplemental materials onorbefore October 24, 2012, and to reappear onNovember 2, 20.12 for oral argument on the disputed issue. On September 24, 2012,

# an Order SettingLitigation Dates and Procedures was filed, which codifiedthe venue deadlines orally provided atthe September 20,·2012 Rule 16 Conference. On Oqtober 23, 2012, theRespondent filed the Respondent's Supplemental Materials on the Venue Issue. On October 24, 2012, the FAA filed the Administrator's Supplemental Materials onthe Disputed Veriue Issue. OnNovember 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 oftheir proposed hearing venue requests, neitherprovided any legal authority or discussion in their materials. The Rules ofPractice, 14 C.F.R. part 13, subpart G, govern the setting ofvenue in FAA civil penalty proceedings. The authority to setthe location ofthehearing is vested solely in the administrative lawjudge, after considering any suggestions by the parties. 14 C.F.R. § 13.221(b); 

### See also, 55 Fed. Reg. 27548, 27561 (discussion offinal rule July 3, 1990, "Location of Hearing"). In setting venue, the administrative lawjudge is notruling for or against a party, but rather utilizingjudicial 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 lawjudgeto whom the proceedings have been assigned shall set a reasonable date, time, and location for the hearing

... The administrative lawjudge shall give due regard to the convenience ofthe parties, the location where the majority ofthe witnesses reside or work, and whetherthe lqcation is servedby a scheduled air carrier. Section 554(b) ofthe 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 ofthe· parties." 5 U.S.C. 

### § 554(b). The Rules ofPractice under 14 C.F.R. part 1'3, subpart G, do not specifically define the factors involved in considering the convenience ofthe parties. Fortunately, there is ample guidance onthe issue in federal caselaw. When considering the convenience ofthe parties for the purpose ofdetermining 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 ofthe parties); 

### In re Volkswagon of America, Inc., 371 F.3d 201, 203 (5th Cir. May 18, 2004)(bothpublic 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 orthe witnesses involved in a particular case." 54 Fed. Reg. 11914, 11916 (disposition ofcomments Mar. 22, 1989, "Location ofHearings"}. In addition, any other factors deemed relevant by the administrative lawjudge may also be considered, in orderto address the needs ofthe parties, the needs'ofthe witnesses involved, and to avoid hardship. 54 Fed. Reg. 11914, 11916 (disposition ofcomments Mar. 22, 1989, "Location ofHearings"). 

### See, e.g., Baicker-McKee et al., 

### Federal CivilRules 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) theavailability 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 offinal rule July 3, 1990) ("Ifthe place where the incident occurred is a relevant factor

...eitherparty is free to raise that



# . ")

. . ISSUe...

.

. Although not required 

### by the Rules ofPractice, in a venue dispute the parties "are encouraged to explain or support their suggested venue location so that the administrative law judge is aware ofthese considerations at the time ofthe [venue] determination." 55 Fed. Reg. 27548, 27561 (discussion offinal rule July 3, 1990, "Location ofHearing"). 

### B. Undisputed Facts

. Itwas undisputed that the Resp.ondent owned and operated a World War II B-17 G Boeing aircraft registered as N-390TH. On orabout February 24, 2011,.the Respondent· performed maintenance onthis B-17 G aircraft in the Georgia, Atlanta area. During oral argument, theFAA 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 thatthe 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 atleast 12 or m0re times, to various parts ofthe**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 ofat least eleven (11) ormore ofthese flights were not relevant to the issue ofvenue. · On June 13, 2011, the Respondentperformed additional maintenance onthe B-17 G

.aircraft in the Chicago,. Illinois area. That same day, after the June 13, 2011 maintenance, the Respondent again operatedthe B-17 G ·aircraft. There was an in-flight fire onthe aircraft during the June**13~** 2011 flight. This resulted ip. an emergency landing ofthe aircraft inthe Chicago, Illinois area. The aircraft was destroyed by the fire. ·

. Itwas undisputed that afterthe June 13, 2011 airplane fire and destruction ofthe aircraft, boththeFAA andthe 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 offive witnesses.'Three ofthese witnesses (two experts and one lay witness) are located in the**Chicag~,** Illinois area. The othertwo witnesses (one expert and one lay witness) are located in Colorado, and New Mexico, respectively. The FAA witnesses located in Colorado andNewMexico 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 ofsix (6) witnesses (all experts). Five (5) ofthe six (6) witnesses were located in the Atlanta, Georgia area. The other witness was located inNew SmyrnaBeach, Florida, which was located within a four hour automobile drive from Atlanta, Georgia. Page 3 of10C. · BriefDiscussion oftheParties' PrimaryArguments All ofthe parties' factual argulllents, both oral and written, were considered. This·

.discussion focuses Qnly onthe parties' primary arguments.

1. Convenience ofthe Parties As previously notedherein, pursuant to 14 C.P.R.§ 13.221(b), the convenience ofthe parties is a primary factor in cQnsidering venue. Federal caselawprovides guidance onthe multiple factors that may bereviewed in consiqering the convenience ofthe parties. Four (4) of those factors are discussed herein: (a) the·ease ofaccess to evidence; (b) th.e cost ofattendance for willing witnesses; (c) other factors thatmight shortenthe hearing'or make itless expensive; and (d) whether the place where the incident occurred is a relevant factor. · (a) The ease ofaccess 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 thatany documentary evidence would be difficult to obtain,orrelated tothe issu.e ofvenue setting. It appeared undisputed that all the identified witnesses were willing**to·t~stify.** Bothparties argued for venue based on the ease ofaccess to their named live witnesses who were physically located in their preferred venue location. Ror the FAA, that meant easier access to thethree witnesses physically located in Chicago Illinois. Forthe 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 ofaccess factor demonstrates that six (6) ofthe eleven (11) named witnesses ide1itified bythe parties live in or near Atlanta, Georgia. Only three 

### (3) ofthe.eleven (II) witnesses live in Chicago, I.Uinois. Two (2) ofthe witnesses will need totravel long distance regardless ofwhether the venue is set in Chicago or in Atlanta. Taken as a whole, ease ofaccess to the majority oflive witnessesis in the Atlanta, Georgia area. · (b) The cost ofattendancefor willing witnesses. The parties·.tiled ample material on (he cost oftravel for their witnesses. Both the FAA and Respondent have argued, with supporting documentation, that 

### itwill be expensive for them to travel to the other's proposed location. A large**port~on** ofthat expense comes from the cost ofattendance 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 ofwhom 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 ofwhether 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 ofits witnesses should venue be set in Atlanta instead of Chicago. The FAA asserted that the total costto transport its three Chicago basedwitnesses 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 othertwo "traveling" witnesses, would all stay aminimum'offour 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 thatthe FAA would need all five witnesses (3 expert and 

## i lay) to remain. in attendance after the presentation ofits own case-in-chief. It mustbe noted that the FAA appeared to provide the most expensive version ofwhat travel costs might be needed for its witnesses. Nevertheless, for purposes ofthis dispute, the FAA'.s costs were accepted. The Respondent plans to call six witnesses, five ofwhom are located in the Atlanta, Georgia area.. 'theRespondent's sixth witness is located in New SmyrnaBeach, Florida, which

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

.. The travel.cost information provided by Respondent was not as detailed as the FAA's information. The Respondent is encouragedto 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 Atlantato 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 atotal travel cost for the Respondent of$8,106 without including any ground travel costs.2 

### It should be pointed outthat this $8, 1 06 amount does not reflect the total expenses likely to be incilrred by Respondent's New SmyrnaBeach, Florida witness. The Respondent did notprovide any data for such ground or air travel from New Smyrna Beachto Atlanta. Given the fact that the Respondent would need to coverthat cost if the venue was set in Atlanta, it was not included. Based on the raw numerical data submittedby the parties, it**~s** 

### clearthe Respondent would'bear the greater cost ofwilling**witne~s** 

### travel, should the venue be set in Chicago, Illinois' instead ofAtlanta, Georgia (i.e., $8,106 Respondent witness travel cost to Chicago, versus $3,894 FAA witness travel cost to 

### Atlanta). The Respondent wouldpay, at minimum, $4,212 more than the.FAA for travel costs ifvenue was setin Chicago. As aresult, this factor weighed. in favor ofAtlanta, Georgia for venue.

1The FAA noted that its costto 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** totransportthese 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/nightx 4 nights) x 6 witnesses)+ (($71/day x 5 days) x6 witnesses). No taxi orrental·car costs were included in this formula. · Page 5 of 10(c) Other factors that might shorten trial or makeit less expensive. The parties also discussed the costoftravel for- 'their counseL · In some circumstances, butnot all, the·location and convenience ofcounsel has been included as a factor in the convenience ofthe parties. 

### See, LiquorSalesmen's Union v. NLRB, 664 F.2d 1200, 1205 (D.C. Cir. 1981) (factors considered in trahsferring venue under 28 U.S.C. § 2112); 

### Butsee, In re VolkswagonAG; Volkswagon of America, Inc., 371 F.3d 201 at 203 (rejecting location and convenience ofcounsel in a convenience ofthe parties analysis under 28 U.S.C. 

### § 1404(a))

.

.The FAA asserted that setting venue in the Atlanta, Georgia areawould create "financial challenges to the Administrator." This was because oftheinherent travel expenses that would occur ifthe FAA sent its .five witnesses.and two Chicago, Illinois FAA attorneys to the Athinta, Georgia areato litigate the case. The.FAA then providedtravel cost information for two attorneys. (FAA's.October 24,2012 Supplemental Materials).· While it is certainly the choice ofa party to develop a litigation strategythat includes ·the use ofmultiple attorneys, such litigation choice should not automatically warrant greater cost weight in the consideration ofvenue. Itwas 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, ifmultiple FAA attorneys were necessary to try this case, a partnership with local FAA Atlanta counsel (which would reduce FAA Chicago cou.rlsel travel costs) wouldnot serve equally well. As a result,.consideration ofthe FAA's Chicago counsel travel expenses was basedonly on the cost oftravel for one (1) FAA attorney. In contrastto 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). Itwas undisputed that the Respondent's attorney was located in Miami, Florida, and wouldbe required to travel in any event. However, the Respondent's attorney orally asserted that he**plann~d** to personally bearthe bruntofall travel costs. The Respondent also argued

-- without submitting any documentary evidence in· support ofsuch argument

-- that as a non-profit corporation it had no funds to support any litigation costs ortravel costs. In addition, the Respondent argued that the FAA had more·resources,' and could more easily bearthe financial burdens.oftravel cost.

. The Respondent's arguments oforganizational 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 oforganizational 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 ofitself, is not determinative ofa client's financial status. Absent any proofoforganizational financial status, the Respondent's arguments offinancial·

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 FAAthen explained thatthe 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. 11/2/12TR 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 oflOinability cannot be given serious weight. In addition, the argument that the FAA has a deeper pocketis not persuasive, particularly since the Respondent chose not to provide.any documentary information about the state ofits own finances. A party asserting hardship must demonstrate it through an offer ofreliable proof, as o.pposed to anecdotal argument.

. Taking all matters into account, the cost to the FAA for attendance ofone attorney at an Atlantahearing 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 groundtransportation (Respondent's October 23, 2012 Supplemental Materials).4 This Respondenttravel cost of$1 ,545 to Atlanta, whether borne by the Respondent orby Respondent's counsel, would he necessary in any event. Incontrast, 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. 5Thus, the Respondent's costs for travel to Chicago, instead oftravel to Atlanta, would result in only an increase by an amount ofapproximately$237. Clearly, the FAA bears the greater cost ofcounsel travel (i.e., $1,545 v. $327). Nevertheless, while the convenience ofcounsel weighs in favor ofvenue in Chicago, Illinois, the overall convenience ofthe parties still weighed towards holding the hearing inAtlanta, Georgia. (d) W,hether the place where the incident occurred is a relevant factor. The inquiry under this prong is whether where the allegedviolations 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 destructionjust6 to 7miles from the Aurora, Illinois Airport in the Chicago, Illinois area. Subsequently, boththe FAA and the NTSB conducted investigationsinthe Chicago, Illinois-area. (July 17,2012 FAA Response to Respondent's Suggestion o.fHearing Location). TheFAA did.not assert that there was any physical evidence located inChicago (e.g.,

### the destroyed aircraft, records, etc) that would require venue to be set in that area. The FAA also did not clearly demonstrate howmuch the June 13, 20i 1 Chicago, Illinois events were related to the alleged 14 

### +violations in its Complaint. .Based upon a review ofall the materials and arguments, it appeared that the June 13, 2011 events would be utilized in large partto support and lend credence to the FAA's allegationthat 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 ofthe 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 oflOThe record shows that the FAA is alleging that the Respondent committed one violation of 14 C.F.R. § 91.405(b) (regarding the maintenance ofthe aircraft) on or about February 24, 2011 in ornear Atlanta, Georgia (11/2/12 TRat 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 ofthe 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 ofthe aircraft when the FAA alleges the aircraft was not airworthy. Theparties agreed, however, that the arrival/departure locations of11 ofthese 12 or more flights were notrelevantto the issue ofvenue. Only one ofthese flights, the flight that ended inthe destruction ofthe aircraft on or about June 13, 2011, was allegedto 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" fortwo ofthe 14 or more alleged violations. It was noteworthy .that neither party argued thatvenue in one location as opposed to the otherwould 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 ofa 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 ofthe 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 ofthe Witnesses Pursuantto 14 C.P.R. § 13.221(b), another primary factor for consideration in setting· venue is the location··where the majority ofthe 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 inNewMexico, one (1) witness located in Colorado, five (5) witnesses located inAtlanta, Georgia, and one. 

### (1)witness located inNew Smyrna Beach, Florida. In this case there was no location 'in which a majority (i.e., 6) ofthe witnesses lived or worked. However, the clearplurality (i.e., 5) ofthe 11 witnesses resided inthe Atlanta, Georgia area. Thus, this factor weighs in favor ofAtlanta, Georgia for the setting ofvenue.

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. Bothparties agreed that a scheduled air carrierprovided 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 andknowledgably 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 orboth ofthe FAA Chicago attorneys to travel. According to the FAA, such an elective managementtransfer ofthe case litigation to FAA attorneys in Georgia could result in a loss ofattorney expertise, since the substitute FAA counsel would notbe as familiar withthe complexities ofthe case. (July 17, 2012 FAAResponse to Respondent's Suggestion ofHearing Location;· 11/2/12 TR at 22 (lines 1- 19), 23 (lines 12-25), 24 (lines l-5)).

. · In orderto showprejudice the FAA must first prove that the event causing the prejudice (I.e. the transfer ofthe case to different FAA office), will occur, and that the FAA should be deemedto sufferprejudice by that elective event. The FAA did notprovide proofofeither factor. Instead, the FAAhas only argued that 

### it is possible that the case might be transferred to the FAA's Southern**R~gion** Office ifvenue was· set in Atlanta, Georgia, andthat it was possible that the representation might suffer as a result (11/2/12 TRat 22 (lines 9-10) and 24 (lines 3-5). Itwas noteworthy thatthe FAA did not assert that its FAA attorney employees located in Atlanta, Georgia were unable to handle complex litigation, orthat such Atlanta FAA attorneys were not as highlycompetent as its FAA attorney staffworking inthe Chicago, Illinois area. The FAA simply arguedthat 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 inthe legal commU.nity. Itshouldbe noted that inmany public agencies and private law firms throughout the country, attorneys are routinely reassigned cases set for litigation for a wide variety ofreasons, without any loss ofquality representation. The FAAhas failed to make a compelling argument that an alleged loss ofquality liiigation might occur in this case (ifat all) ifthe case was reassigned to AtlantaFAA counsel. In addition, the FAA has also not demonstrated prejudice. IfF AA management chooses to reassign litigation ofthis case to another attorney, thi's decision is an elective decision. Itmust be presumed that management makes such a decision only after fully consideringthe consequences to thepresentation ofits case-in-chief. Case assignments or reassignments are a management prerogative, and should be deemed an internal litigation strategy choiceby a party absent strong contrary proof. Taken as a whole, the FAA's argument ofpotential prejudice is not persuasive. The FAA's argument of"prejudice" was not given weight as a relevant factor in considering the setting ofvenue.

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 ofthe Hearing in Atlanta, Georgiawill be provided to the parties priorto the Hearing.

Attachment: Service List

Page 10of 10SERVICE 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-Suite2Wl000

Ms. Adrianne Wojcik, Esq. Complainant's Counsel 

### Office ofthe 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. AdministrativeLawJudge 

### Office ofHearings, M-20 U.S. DepartmentofTransportation 1200 New Jersey Avenue, S.E. (E11-:310) Washington,DC 20590 'TEL: 202-366-2132 FAX:· 202-366-7536 ONE COPY 

### FDMSNo.**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.,WilburWright Building-Suite 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.