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•,, .,**.,.~..,** 1 ·' (**~** U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS PRE-HEARING CONFERENCE

+ + + + +
IN THE MATTER OF: FEDERAL AVIATION ADMINISTRATION COMPLAINANT,

v. COASTAL AIR TRANSPORT, INC. RESPONDENT

. FDMS NO. FAA-2011-1005

Thursday, March 1, 2012 Via Teleconference 1

The above-entitled matter came on for hearing, pursuant to notice, at 11:00 a.m.
BEFORE:

(202) 234-4433 THE HONORABLE J.E. SULLIVAN, ADMINISTRATIVE LAW JUDGE 

# RECEIVED 'MAR 232012 

# HEARING DOCKET

NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.comAPPEARANCES:

On Behalf of the Complainant: RASHAWN RICH GEORGE, ESQ. of: Office of the Regional Counsel Federal Aviation Administration PO Box 20636 Atlanta, Georgia 30320 (404) 305-5200

NEAL R. GROSS 2

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1 P-R-0-C-E-E-D-I-N-G-S 2 11:09 a.m. 3 ADMIN. JUDGE SULLIVAN: We're on the 4 record in the matter of Coastal Air Transport 5 Inc. Today is Thursday, March 1, 2012. And the 6 parties have convened for a litigation scheduling 7 conference. 8 The Federal AviationAdministration is 9 represented by Ms. Rashawn Rich George, the 10 attorney of record. She is present by telephone. 11 The Respondent, Coastal Air Transport 12 Inc., is represented by its president, Michael 13 Foster. He is a pro se litigant. He's not 14 present this morning. There is no explanation 15 for his absence. 16 I'll note that a order setting Rule 16 17 litigation scheduling conference and directing 18 Rule 26 Subsection (f) , as in Frank, planning and 19 submission, was filed on January 4th, 2012. And 20 served on all the parties that same day. 21 The notice of service to Michael 22 Foster, president, was sent to his address of

(202) 234-4433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 W-NW.nealrgross.com4 1 record which was P.O. Box 3985, Christiansted, 2 that's spelled C-H-R-I-S-T, as in Tom, I-A-N, as 3 in Nancy, S as in Sam, T as in Tom, E-D, as in 4 David, St. Croix, Virgin Islands, 00822. 5 In addition, a copy of the same order 6 was sent to George Logan, agent for service for 7 Coastal Air Transport Inc. That was sent to Mr. 8 Logan's address of record, which was 1131 King 9 Street, Suite 204, Christiansted, St. Croix, 10 Virgin Islands, 00820. 11 Prior to going on the record today, 12 the Office of Hearing staff tried to reach Mr. 13 Foster three different times by telephone. The 14 telephone number of record that we have on file 15 is, area code, 340-773-6862. The Office of 16 Hearing staff tried to reach Mr. Foster on three 17 different occasions, at 10:58 a.m., 11:01 a.m., 18 and 11:03 a.m, with no success. 19 I'll note that Ms. Mays just entered 20 the hearing room. And she's advising me that 21 they have left a message on his, Mr. Foster's, 22 phone voice mail giving him a phone number to

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### 1 call. And that would be Ms. Mays' personal line 2 in case Mr. Foster gets that message and wants to 3 join us. 4 Thank you Ms. Mays. 5 I'll note for the record that Ms. Mays 6 is leaving my office at this time. 7 

### In addition, I should note that the 8 third phone call that was made by the Office of 9 Hearing, which was done at 11:03 a.m. today, Ms. 10 Mays left a phone message for Mr. Foster advising 11 him in this phone message that the Office of 12 Hearings was trying to reach him to try to obtain 13 his presence for this schedule conference. And 14 unfortunately, the phone message did not include 15 

### a phone number. And so I directed the staff to 16 call him back and leave a second message leaving 17 a phone number for him to reach. 18 

### They just did that. And the phone 19 number they gave him was Ms. Mays' personal line, 20 which is 202-366-2132. 21 Ms. Mays, my legal assistant, will be 22 monitoring that phone. And if at any time during

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### 1 this conference proceeding Mr. Foster calls, 2 she'll make sure that he gets conferenced in. 3 I'll also note that prior to going on 4 the record today that this Court received two 5 different filings from the FAA. 6 On February 23rd, 2012, the FAA filed 7 

### a Rule 26(f) report. In which it noted that it 8 was filing that by itself since it has not a 9 chance to communicate with Mr. Foster as per the 10 directive in the January 4, 2012 order setting 11 Rule 16 litigation scheduling conference. 12 In addition, the FAA filed a separate 13 

### document on February 23rd, 2012. That document 14 

### was entitled "Motion for decision on the 15 pleadings," or on the alternative, "Motion for 16 hearing on sanctions" only. 17 

### At this point, Ms. George, what we 18 should probably talk about is a couple of 19 preliminary matters. 20 Clearly, according to my file, there 21 has been no formal written answer from the 22 Respondent.

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1 MS. GEORGE: That's correct, Your 2 Honor. 3 ADMIN. JUDGE SULLIVAN: The Respondent 4 appears not to have engaged in any CR 26 5 Subsection (f), planning discussion with you 6 prior to today? 7 MS. GEORGE: Your Honor, Mr. Foster 8 did not, was not available then. 9 He did leave a message on my voice 10 mail on February 24th. I was out of the office 11 on travel. And he indicated that he himself was 12 out of the country and away from his telephone. 13 He did not, he left me the same number 14 that you have, the 340-773-6862 number. 15 And I have not been able to personally 16 speak with him. 17 ADMIN. JUDGE SULLIVAN: When you say 18 that he left a message saying that he was out of 19 the country and not available by phone, was that 20 for the date of February 24, 2012 or for this 21 date? Or did he clarify that in any way? 22

(202) 234-4433 MS. GEORGE: I attempted to reach Mr.

NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com8

1 Foster by telephone on February the 21st. And 2 his message indicated that at the time of my call 3 on February the 21st, he was out of the country 4 and away from his telephone. 5 ADMIN. JUDGE SULLIVAN: Okay. He did 6 not call you? You just received a message from 7 his phone service? 8 MS. GEORGE: No. He left a, he 9 himself left a personal voice mail message on 10 February the 24th, at 8:30 a.m. 11 ADMIN. JUDGE SULLIVAN: And in that 12 message, did he indicate how long he was out of 13 the country? Where he was? When he was coming 14 back? Why he would be unavailable by phone? Any 15 of those things? 16 MS. GEORGE: His message just 17 indicated that he was on a trip on the February 18 21st date when I attempted to contact him. 19 He's an airline pilot and the owner of 20 Coastal Air Transport. So he was out on a trip 21 during that time. 22 He did not indicate what his schedule

(202) 234-4433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005·3701 www.nealrgross.com9 1 would be for this week in that telephone message. 2 3 ADMIN. JUDGE SULLIVAN: So in essence, 4 if I understand your statement, you called Mr. 5 Foster on February 21st, 2012. And received a 6 voice mail message saying that he was not 7 available and not accessible by telephone because 8 of a trip he was on. 9 MS. GEORGE: February the 21st. When 10 I had called him. 11 ADMIN. JUDGE SULLIVAN: And then on 12 February 24, 2012, Mr. Foster responded to the 13 message you left him three days prior, on 14 February 21, 2012. And Mr. Foster stated in his 15 message on February 24, 2012, that he had not 16 been available because of this prior travel 17 arrangement he had on the 21st, 2012. 18 Ms. George, could you respond to that? 19 20 21 exactly 22 correct.

(202) 234-4433 MS. GEORGE: Your Honor, I said your recitation of the facts is

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1 

### ADMIN. JUDGE SULLIVAN: Okay. Since 2 February 24, 2012, have you had any contact with 3 Mr. Foster? 4 

### MS. GEORGE: Have not. 5 

### ADMIN. JUDGE SULLIVAN: Well then 6 let's talk about the CR 26 (f) submission that 7 you gave. 8 I think then it's premature at this 9 point to set any further due date for litigation 10 since we may have a pro se litigant who, 11 potentially, is defaulting on the notice of 12 complaint. 13 

### MS. GEORGE: Okay. 14 ADMIN. JUDGE SULLIVAN: You had 15 indicated in your materials that you have had 16 some type of settlement conference with Mr. 17 Foster prior to the issuance of the complaint. 18 When was the last time that you actually had a 19 discussion about this case with Mr. Foster? 20 MS. GEORGE: We had a telephonic 21 informal conference on May 11th, 2011. And at 22 that time, we discussed the facts of this

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1 particular case. And discussed settlement at, 2 during that conference. 3 That conference was followed up with 4 a letter from Mr. Foster on August 30th, 2011 5 rejecting our offer of settlement. And 6 indicating that he was interested in proceeding 7 to the formal hearing stage. 8 ADMIN. JUDGE SULLIVAN: Okay. So the 9 last time the two of you actually spoke was on 10 May 11, 2011? 11 MS. GEORGE: Exactly. 12 ADMIN. JUDGE SULLIVAN: Okay. Okay. 13 Well then what I would suggest that we do is 14 this, I do need to get some information from you 15 about your complaint just so that I have an idea 16 of where it would be best to go from here. 17 As I understand it, you're alleging 16 18 violations of Title 49. And it's from a shipment 19 that occurred on October 21, 2009? 20 Ms. George? 21 MS. GEORGE: That's correct, Your 22 Honor.

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1 ADMIN. JUDGE SULLIVAN: Okay. And so 2 that the 16 violations all accrue, according to 3 your complaint, from that one shipment? 4 MS. GEORGE: Yes. 5 ADMIN. JUDGE SULLIVAN: Okay. 6 MS. GEORGE: The HMR, the Hazardous 7 Material Regulations. Each of the regulation 8 violations we are assessing is based upon his 9 shipment of hazardous materials while he was not 10 authorized to do so as a Part 135 air carrier. 11 ADMIN. JUDGE SULLIVAN: Okay. 12 Normally, when I have a pro se litigant like 13 this, I will do some extra work on the case to 14 make sure that full and fair notice has been 15 provided to the litigant. So that if the 16 litigant continues to ignore the Court's summons, 17 ignores the Court's direction, that it's clear on 18 its face that the plaintiff or the litigant is 19 making that kind of choice. 20 In this particular instance, what I'm 21 going to propose, and I want to hear your 22 feedback about this, is to do a couple of

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1 

### different things. 2 I can send out an order that basically 3 directs the Respondent specifically to file a 4 

### written answer to all of the allegations in the 5 

### notice of complaint by date certain. Within this 6 

### same order, I can also do an order to show cause, 7 

### that directs the Respondent to specifically 8 

### address and answer the motion that you have filed 9 

### to, for decision on the pleadings. 10 

### In addition, I would simply note for 11 

### you that at this point, I don't believe that your 12 

### motion is analogous to a summary judgement 13 

### motion. I think your motion is analogous to a 14 

### default judgement. Because we have no response 15 

### from the claimant at all. And the motion that 16 

### you have filed before me has no testimonial 17 

### evidence attached, which is the general 18 requirement for summary judgement proceedings. 19 

### In other FAA cases that I've heard, 20 in this kind of scenario, we proceeded with, you 21 

### know, looking at the motion in terms of a partial 22 default.

(202) 234-4433 

### And then giving the FAA a chance to

NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

### 14 1 file a second motion for default on the penalty 2 phase and/or to decide whether or not it would 3 prefer to move for summary judgement on the 4 penalty phase. 5 Particularly in complaints like this, 6 where it doesn't appear clear on its face, either 7 in the complaint or in the motion for decision, 8 how you reached the penalty that you reached. 9 It's clear on its face both in your complaint and 10 in your motion that you have 16 violations you 11 are alleging. I'm not able to discern easily, or 12 perhaps at all, how you reached the sum of 13 $59,600.00 as a maximum penalty for those 16 14 violations. 15 So, that's what I would be looking at 16 doing at this point. And then deferring the CR 17 16/26 (f) proceedings farther out. 18 

### So that if, in fact, we still don't 19 get an answer from the Respondent either to the 20 notice of complaint or to the motion to for 21 decision, we can go forward and clear the plate, 22 essentially, for what's really essentially still

(202) 234-4433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com15 1 missing or still in contest. 2 If the Respondent does file an answer, 3 if the Respondent does file a response to the 4 motion for decision on the pleading, my order can 5 then get parties back on track since I could 6 ideally set out, past the due dates for the 7 answer and the response, a second CR 16/26 (f) 8 litigation conference. So that the parties can 9 come together and start talking about the merits 10 of what's before the court. 11 Do you have any feedback, or comment, 12 or alternate suggestion that you'd like to 13 propose? 14 MS. GEORGE: Your Honor, what you 15 have proposed I have no objection to. 16 So I will file a second motion and 17 clearly outline how the penalty was calculated, 18 while we are awaiting the Respondent's responses. 19 ADMIN. JUDGE SULLIVAN: I don't think 20 you even nee to do that at this point, Ms. 21 George. 22

(202) 234·4433 I'm saying that that's probably in

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### 1 your future if the Respondent doesn't file an 2 answer and doesn't file a response to your motion 3 

### for decision on the pleading. 4 

### MS. GEORGE: All right. 5 

### ADMIN. JUDGE SULLIVAN: I think it's 6 

### premature to ask you to do that right now because 7 

### we're still in the process of trying to see if 8 

### the Respondent truly wants to participate or not 9 

### in these proceedings. Since this particular 10 

### litigant is pro se, I always give people a little 11 

### extra breathing room to show up. 12 

### MS. GEORGE: I understand. 13 

### ADMIN. JUDGE SULLIVAN: Yes. I can 14 give you, I have a case I'm just looking at now, 15 I can give you the name of another FAA attorney 16 who's appeared before me on something that's 17 quite similar. And if you want to chat with him 18 

### privately, you're welcome to. And he might be 19 able to show you some of the things that he's 20 done in the case before me. 21 

### Would you have any interest in that? 22

(202) 234-4433 

### MS. GEORGE: That would be great.

NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 WWN.nea!rgross.com17 1 Thank you. 2 ADMIN. JUDGE SULLIVAN: Okay. His 3 name is Mark Camacho, C as in cat, A as in apple, 4 M as in Mary, A as in apple, C as in cat, H as in 5 happy, 0 as in orange. And he's in the Kansas 6 City, Missouri FAA office. 7 MS. GEORGE: Yes. I'm familiar with 8 Mr. Camacho. 9 ADMIN. JUDGE SULLIVAN: Okay. You can 10 chat with him about a case that has some similar 11 flavor about what he has been doing. Just so 12 that you have that in your tool kit. 13 And what I will do is chat with you 14 now about some due dates that I would want to set 15 for Mr. Foster to file an answer, and to file a 16 response to your motion for decision. And then 17 also, to set potentially another telephone 18 conference with you. 19 So if you give me just a moment. I'll 20 21 22 unlock my computer. Okay. Okay. According to my time line, at the very maximum,

(202) 234·4433 after your service, Mr.

NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLAND AVE.• N.W. WASHINGTON. D.C. 20005·3701 Foster's

www.nealrgross.com18 1 material, his answer should have been filed on 2 October 2011. And clearly it was not. 3 MS. GEORGE: Correct. 4 ADMIN. JUDGE SULLIVAN: So let's talk 5 about a fairly short time frame for him to file 6 an answer from today's date. 7 According to motion practice, even in 8 a motion practice, he has 30 days. I'm not sure 9 that we need to give him another 30 days. 10 But given your own practice and cases 11 that you have argued on appeal, do you have a 12 preference? 13 MS. GEORGE: Your Honor, since I have 14 filed the motion on the 21st of February, my 15 preference would be for him to provide a response 16 at least by the 16th of March. 17 ADMIN. JUDGE SULLIVAN: Okay. And 18 when you say 'a response' you're talking about 19 both a response to the decision, motion for 20 decision on the pleadings as well as a written 21 answer? 22 MS. GEORGE: Correct.

NEAL R. GROSS
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1 ADMIN. JUDGE SULLIVAN: Okay. I'm 2 just taking a look at my calendar to see when 3 I'll be in the office to actually act on things. 4 Because that makes a bit of a difference for us 5 too. 6 I'm currently scheduled to be in trial 7 for the week of March 12th, the week of March 8 19th, and the week of March 26th. So I'm not 9 going to be in the office much at all during that 10 period of time. 11 MS. GEORGE: Okay. 12 ADMIN. JUDGE SULLIVAN: And it does us 13 no good, essentially, to set a due date for the 14 Respondent that's short in time and then not have 15 me present to initiate action after that due date 16 is passed. 17 So how about if we do this? I'm going 18 to suggest that we set a response date of March 19 23rd, 2012. 20 And then I'm going to note that I will 21 be back ln the office by March, I'm sorry, by 22 April 2nd, 2012. And I can act on any matters

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### 1 that have been filed or not filed by April 2nd, 2 2012. 3 And then, essentially, what I will do, 4 if I find that there has been no action by Mr. 5 Foster in either filing a written answer or 6 filing a response to the motion for decision on 7 the pleadings, I will grant your motion for 8 decision in part. And I will basically grant an 9 admission on all the things that are in the 10 notice of complaint. 11 But I will defer ruling on this, the 12 civil penalty portion. And give you a due date 13 to decide whether or not you want to file for a 14 

### default. And I'll give you some statutory and 15 civil rule authority to look at as to whether 16 default would work for you or whether you want to 17 supplement your materials in a different way and 18 move for summary judgement on the penalty. 19 Because it doesn't make sense to schedule hearing 20 on the matter, if in fact, we have a litigant 21 22 who's not responding. Yes. And then if Mr. Foster does respond by

(202) 234-4433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com21 1 March 23rd, 2012, I'll have within the order, you 2 know, a due date for a new litigation hearing. 3 That, we can talk about that again. 4 Let me take a look at and I am 5 going to take a minute to look up something for

- 6 - I'm having a little trouble with my computer. 7 And it doesn't recognize the direction I am 8 giving it. So I'm going to try again. Okay. 9 What I'11 do is, I will at, March 10 23rd, 2012 is the due date for Mr. Foster to file 11 a written answer. I'll also set that as the same 12 date for Mr. Foster to file an answer to the 13 motion to deem, the motion for the decision. 14 If he does not, I will simply reserve 15 your motion to the date of April 2nd, 2012 to act 16 on. And then I'll make some, I'll note in the 17 order that if the Respondent doesn't reply then 18 I'll grant the motion. 19 And then set a due date for you to 20 notify me in writing as to what motions you want 21 to pursue to further resolve the matter. And 22 I'll give you some ideas about that in the order

(202) 234-4433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com22 1 I send. 2 I'm not sure at this point it's even 3 meritorious to set a new telephone conference 4 until we hear from Mr. Foster on or before March 5 23rd, 2012. 6 If we do, then I'll set up a second 7 litigation scheduling conference with a due date 8 for the two of you to talk to each other. 9 Does that sound okay to you? 10 MS. GEORGE: That sounds great. Thank 11 you. 12 ADMIN. JUDGE SULLIVAN: Okay. Then is 13 there any thing else that we need to address on 14 behalf of your client today? 15 MS. GEORGE: I think that's all, Your 16 Honor. 17 ADMIN. JUDGE SULLIVAN: Okay. Thank 18 you very much for your presence today. 19 I'll try and get that order out today 20 if it's possible. If not today, tomorrow at the 21 latest. 22

(202) 234-4433 And I'll look forward to either

NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com23 1 talking with you in person at a different time or 2 communicating further in writing. 3 With that, we can go off the record. 4 And I wish you a good day. 5 MS. GEORGE: Thank you. Have a good 6 day. 7 (Whereupon, the above-entitled 8 matter was concluded at 11:35 a.m.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22

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Neal R. Gross & Co 202-234-4433 Page 27



### .' Inc

.28
C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Coastal Air Transport

Before: US DOT

Date: 03-01-12

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

### ~-./!----~> 

## f

(202)234-4433 Court Reporter

NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www_nealrgross.com