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UNITED STATES OF AMERICA :'i·,;~,J5PORlATION 

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OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF: 

FLEET AVIATION, LLC 

(Civil Penalty Action) 

Monday, 

July 9, 2012 

FDMS No. 

FAA-2011-1117 

--b P l:Sb 

The above-entitled matter came on 

for litigation scheduling via teleconference, 

pursuant to notice, at 1:30 p.m. 

BEFORE: THE HONORABLE J.E. SULLIVAN 

Administrative Law Judge 

(202) 234-4433 

RECEIVED 

JUL2·7 2012 

HEARING DOCKET 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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APPEARANCES: 

On Behalf of the Respondent: 

GREGORY S. WINTON, ESQ. 

of: The Aviation Law Firm 

One Research Court, Suite 450 

Rockville, MD 20850 

(301) 294-8550 

(301) 294-2525 fax 

On Behalf of the Complainant: 

of: 

(202) 234-4433 

ZACHERY M. BERMAN, ESQ. 

Federal Aviation Administration 

Office of Regional Counsel 

AEA-7 

1 Aviation Plaza 

Jamaica, NY 11434 

(718) 553-3258 

(718) 995-5699 fax 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 

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1 P-R-0-C-E-E-D-I-N-G-S 

2 (1:28 p.m.) 

3 JUDGE SULLIVAN: We are on the 

4 record in the matter of Fleet Aviation, LLC. 

5 This is Docket No. FAA-2011-117. Today is 

6 Monday, July 9, 2 012 and the parties have 

7 convened by telephone for a 1:30 p.m. 

8 litigation scheduling conference. 

9 The FAA attorney, Zachery M. 

10 Berman, is present. The Respondent attorney, 

11 Gregory S. Winton is also present. Both 

12 counsel are appearing by telephone. 

13 Also present at the Office of 

14 Hearings sitting as observers only are Melissa 

15 Ngo, a law student intern with this off ice, as 

16 well as Mark Soto, a law student intern with 

17 this office. 

18 Good afternoon, counsel. 

19 MR. WINTON: Good afternoon. 

20 JUDGE SULLIVAN: I'll just note 

21 that on July 3, 2012, I received the jointly 

22 proposed litigation scheduling and discovery 

NEAL R. GROSS 

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1 plan from the attorneys. Thank you very much. 

2 I do have a question to ask you 

3 and I'll address this question first to Mr. 

4 Berman. In the joint litigation schedule that 

5 you presented to me, you were asking a Court 

6 to essentially wait approximately four months 

7 before initial discovery lS even due with a 

8 litigation discovery plan that extends the 

9 actual hearing in this matter into next June 

10 2013. 

11 Given the fact that this matter 

12 has been continued several times up until 

13 today's date, you're talking about continuing 

14 the matter for almost two years from the date 

15 that it was referred to the Office of 

16 Hearings. And I wanted to know why that is, 

17 Mr. Berman. 

18 MR. BERMAN: Well, to tell you the 

19 truth, I originally -- my proposed plan that 

2 0 I submit ted to Mr. Winton was about two months 

21 earlier and he asked if we could push it back 

22 two months and you're right, it has been 

NEAL R. GROSS 

(202) 234-4433 

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1 postponed a lot. 

2 I do note that the U.S. Attorney 

3 is handling another case involving Fleet 

4 Aviation and they're on the verge of a 

5 settlement with Fleet Aviation that would 

6 include these two cases. The only problem is 

7 that the case looked like it was going to 

8 settle all three of these cases, including 

9 this one, but there's been a change in 

10 management at Fleet and for whatever reason, 

11 the settlement agreement is not going as 

12 smoothly as we all hoped. 

13 JUDGE SULLIVAN: So just so that I 

14 understand when you refer to the U.S. 

15 Attorney, you're talking about the U.S. 

16 Attorney working under the Department of 

17 Justice? 

18 MR. BERMAN: Yes. 

19 JUDGE SULLIVAN: Involving a case 

20 in the Federal District Court? 

21 MR. BERMAN: And we referred the 

22 case that was originally being handled by the 

NEAL R. GROSS 

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1 FAA, but since it was for over $50,000, the 

2 FAA doesn't have jurisdiction, so we referred 

3 it to the Justice Department for prosecution. 

4 JUDGE SULLIVAN: Okay. So 

5 essentially that portion of the disputes 

6 involving Fleet Aviation is currently in the 

7 Federal District Court being addressed by the 

8 U.S. Attorney? 

9 MR. BERMAN: Right, but the 

10 settlement agreements that is being worked on 

11 would include things that we have before us 

12 today, one is the subject of this conference. 

13 JUDGE SULLIVAN: When you say that 

14 the U.S. Attorney is involved, do you know if 

15 in that case there has been a trial date set 

16 or any type of pretrial conference deadline 

17 set while they're working on settlement? 

18 MR. BERMAN: I would have to -- I 

19 don't know. Maybe Mr. Winton would know the 

20 answer to that. 

21 JUDGE SULLIVAN: Okay, well, Mr. 

22 Winton, why don't I turn to you. Are you the 

NEAL R. GROSS 

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1 attorney who is also litigating in the Federal 

2 District Court with the U.S. Attorney 

3 involving your client? 

4 MR. WINTON: Yes, Your Honor. I 

5 am involved in that case. As far as 

6 litigating the case, the complaint has not yet 

7 been issued and that's why we're trying to 

8 resolve it pre-suit. 

9 So settlement agreement from the 

10 U.S. Attorney has been forwarded to my office, 

11 sent to my client. I'm waiting for approval 

12 on the settlement agreement and if and when 

13 it's approved, then a complaint, along with a 

14 voluntary dismissal would be filed together. 

15 So it's really not in litigation yet. 

16 JUDGE SULLIVAN: Okay, when you 

17 say that you're involved, does that mean that 

18 you are the primary counsel representing your 

19 client or you're simply being kept advised by 

20 someone else? 

21 MR. WINTON: I guess I'm the only 

22 counsel at this point so I would say primary, 

NEAL R. GROSS 

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1 certainly. But remember, if you do recall 

2 from our last conference there was counsel for 

3 the company that was dealing with the 

4 mediation, I'm sorry, arbitration. And I'm 

5 relying on that counsel to advise me when 

6 there's going to be a wind down of the 

7 corporation and anything else having to do 

8 with it. 

9 JUDGE SULLIVAN: Okay. I actually 

10 don't have that specific note in my last 

11 conference notes, so thank you for reminding 

12 me. Just so that I'm clear, you have pre13 settlement negotiations going on in which 

14 you're primary counsel, but you're consulting 

15 with an arbitration lawyer who is also doing 

16 an arbitration in this matter? 

17 MR. WINTON: Your Honor, Your 

18 Honor, and forgive me for the confusion. I 

19 have on my calendar today both Zachery Berman 

20 and yourself, two conferences scheduled for 

21 two different cases. I want to make sure 

22 we're all talking about the proper case. I 

NEAL R. GROSS 

(202) 234-4433 

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1 know you gave us the number. What is the 

2 caption of the case? 

3 JUDGE SULLIVAN: We're talking 

4 about the matter of Fleet Aviation. 

5 MR. WINTON: Fleet Aviation, 

6 correct, okay. 

7 JUDGE SULLIVAN: F-L-E-E-T 

8 Aviation. 

9 MR. WINTON: That is the one in 

10 which the U.S. Attorney has not filed a 

11 complaint and I'm waiting for an answer from 

12 the client for the settlement approval. So 

13 actually there were three different matters. 

14 Two, the FAA has filed; one is sitting with 

15 the U.S. Attorney, no complaint has been 

16 issued. 

17 JUDGE SULLIVAN: Okay. 

18 MR. WINTON: And the settlement 

19 agreement would resolve all three. 

20 JUDGE SULLIVAN: In general, not 

21 specifically for this particular case, but in 

22 general, based on your experience, how much 

NEAL R. GROSS 

(202) 234-4433 

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1 time does it usually take for a response to 

2 come back from your client and get forwarded 

3 to the U.S. Attorney's Office? 

4 MR. WINTON: Typically, and I've 

5 been working with this client now going on 

6 almost two years, I would have immediate 

7 response. My understanding, over the last 120 

8 days, the company has switched ownership or 

9 management twice, so the current management 

10 structure I am completely unfamiliar with. 

11 Nobody advised me of what was going on there . 

12 And two principals from which I 

13 understand I am waiting an answer for, I don't 

14 even have direct contact with. So when you 

15 ask me typically or normally, there is no more 

16 typical or normal because it's a completely 

17 different corporation as far as I know. 

18 JUDGE SULLIVAN: Well, there's a 

19 difference between switching management 

20 representatives and switching ownership. So 

21 let me ask you this, just in general, and in 

22 terms of your general experience, how long 

NEAL R. GROSS 

(202) 234-4433 

COURT REPORTERS AND TRANSCRIBERS 

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1 have you usually taken with a client to 

2 respond to the U.S. Attorney if you've had 

3 that experience before? 

4 MR. WINTON: This is the first 

5 client I've had where the case has been 

6 forwarded to the U.S. Attorney and again as 

7 Mr. Berman said, it was because the amount in 

8 controversy is in excess of the jurisdictional 

9 limitations of the FAA, $50,000. 

10 JUDGE SULLIVAN: The reason I'm 

11 asking you for some time responses, Mr . 

12 Winton, is to get a sense of whether this is 

13 going to take two days, two weeks, two months, 

14 or two years. I currently have a litigation 

15 scheduling plan signed by you and Mr. Berman 

16 suggesting that it may take up to a year and 

17 that seems somewhat unusual to me. Would you 

18 care to enlighten me? 

19 MR. WINTON: I would certainly, 

20 Judge. I just sent another email this morning 

21 to the client who emailed me 13 days ago 

22 saying that I will advise you as soon as I 

NEAL R. GROSS 

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1 know, meaning within a day or two. Needless 

2 to say two weeks have gone by and I haven't 

3 received a response. 

4 So the timeliness of the 

5 responsiveness from my client has been 

6 unintentional as far as what they're trying to 

7 accomplish, but I understand the frustrations 

8 that the key contact I have in dealing with 

9 the new management as provided to us in this 

10 litigation. 

11 So I don't have an answer as far 

12 as days, weeks, or months. I can tell you 

13 that if I don't have an answer within 30 days, 

14 a decision will have to be made as to whether 

15 I continue as their counsel or dissolve or 

16 find somebody else to represent them. 

17 Mr. Berman and I have been in 

18 discussion trying again to accomplish the 

19 ultimate goal of settlement and resolution of 

20 the cases. I think we both agreed that if we 

21 pushed all the dates out 120 days from what he 

22 had initially proposed, unfortunately, that 

NEAL R. GROSS 

(202) 234-4433 

COURT REPORTERS AND TRANSCRIBERS 

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1 did take us to the one year point with the 

2 understanding and the expectation that we 

3 would never get to that one year trial in June 

4 of 2013. 

5 So I apologize, Judge, if it looks 

6 like we're stringing this along, but we're 

7 just making it so that we don't have another 

8 conference in three months and you say to us 

9 again where are we, gentlemen? Why do we need 

10 again to delay it inevitably to get to where 

11 we need to be in a year from now? 

12 JUDGE SULLIVAN: Well, I 

13 appreciate that. My concern is that if you 

14 end up moving to withdraw in 30 days, we're 

15 going to end up having a conference anyway. 

16 MR. WINTON: Possibly. 

17 JUDGE SULLIVAN: Very possibly, 

18 particularly if your client has failed to 

19 respond to you and we need to perfect the 

20 record in terms of your withdrawal motion. 

21 So let me turn back to you, Mr. 

22 Berman. In terms of this litigation 

NEAL R. GROSS 

(202) 234-4433 

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1 scheduling plan that was filed on July 3, 

2 2012, was that your intent as well to just 

3 give the parties in this case a little bit 

4 more time to --

5 MR. BERMAN: Yes. 

6 JUDGE SULLIVAN: You anticipated 

7 me, but thank you. When you say yes, it's a 

8 little bit more time to figure out if 

9 settlement is going to occur or not? 

10 MR. BERMAN: Yes. 

11 JUDGE SULLIVAN: Okay, thank you. 

12 Counsel, what I think this Court would like to 

13 do is just continue this matter for another 

14 six weeks or so, rather than setting up an 

15 entire litigation schedule. The reason I say 

16 that is because once I set up an entire 

17 litigation schedule, that puts you on a 

18 completely different track and it puts your 

19 client, Mr. Winton, in a disadvantaged 

20 position if, in fact, settlement does not 

21 occur and you withdraw. So I'd much rather 

22 have one more continuance of this particular 

NEAL R. GROSS 

(202) 234-4433 

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1 case and if circumstances are such that Mr. 

2 Winton, you feel that you need to withdraw in 

3 30 days, we have a conference set up so that 

4 you can file your motion and appear with 

5 either your client or substitute counsel at 

6 the next conference. That way if your client 

7 does not settle, I will at least have the 

8 ability to find out who the contact person is 

9 going to be if you choose to move on to a 

10 different case and a different client. 

11 I don't want to be in a position 

12 where six months from now I find out that 

13 settlement didn't occur and nothing has been 

14 done on the case because the client either has 

15 essentially disappeared or doesn't have the 

16 funds to continue to pay for counsel. I'd 

17 rather find that out sooner rather than later. 

18 So let's talk about setting this 

19 matter up for one more time on our calendars 

20 and hopefully if all goes according to what I 

21 hear as the primary plan, this particular 

22 conference may not ever come to fruition. 

NEAL R. GROSS 

(202) 234-4433 

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1 Today is July 9th. Mr. Berman, 

2 looking at your calendar first, I will be out 

3 of the office for the last two weeks of 

4 September. Back in the office the first 

5 I'm sorry, the last two weeks of August, 

6 excuse me, and back in the office for 

7 Wednesday, Thursday, and Friday of September 

8 5th, 6th, and 7th. Do any of those days work 

9 for you? 

10 MR. BERMAN: Let me just check. 

11 Which dates in September? 

12 JUDGE SULLIVAN: This will be the 

13 week of September 2nd through the 8th. It's 

14 the first full week of September. And I'm 

15 talking about the days of Wednesday, September 

16 5, 2012; Thursday, September 6, 2012; and 

17 Friday, September 7, 2012. 

18 MR. BERMAN: Let me just check one 

19 thing. 

20 (Pause.) 

21 I'm available on September -- only 

22 on September 5th and 6th, not the 7th . 

NEAL R. GROSS 

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1 JUDGE SULLIVAN: When you say 

2 you're available, does that mean the world is 

3 our oyster and you have no blackout times? Or 

4 that you have some specific times you want to 

5 share? 

6 MR. BERMAN: All day, both days. 

7 JUDGE SULLIVAN: Thank you. Mr. 

8 Winton, turning to you, do you have any time 

9 available on either September 5, 2012 or 

10 September 6, 2012? 

11 MR. WINTON: Yes, Judge, I'm wide 

12 open on those two days at this point. If I 

13 may, I think I appreciate what you're 

14 offering to do and I think that's the best way 

15 to handle this case. I'm just wondering if 

16 six weeks is enough or we should realistically 

17 go for a 60 to 90-day period where I think 

18 realistically we're either going to wrap this 

19 up or I will have made that motion and we can 

20 get new representation in place. I would hate 

21 to do this again in six weeks. 

22 JUDGE SULLIVAN: We're talking 

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1 about eight weeks at this point. 

2 MR. WINTON: Is it eight? Okay. 

3 JUDGE SULLIVAN: We're talking 

4 about two months from now and quite frankly if 

5 your client is dilatory at this point in time 

6 in responding to you in terms of the 

7 settlement, presumptively you'll know in a 

8 month or less whether or not this settlement 

9 is going to go through. 

10 MR. WINTON: I could give them 

11 that deadline and certainly if I don't hear 

12 something in 30 to 45 days that will be fine 

13 before the conference. So I'm available all 

14 day the 5th and 6th of September. 

15 JUDGE SULLIVAN: I would encourage 

16 you to give them an even shorter deadline than 

17 that, but that's just my advice and an 

18 observation. 

19 How about if we plan on Thursday, 

20 September 6th at the same time as this 

21 conference, 1:30 in the afternoon, Eastern 

22 Standard Time? 

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1 MR. BERMAN: That works. 

2 MR. WINTON: That,s fine. 

3 JUDGE SULLIVAN: Then I, 11 plan on 

4 either talking to you on Thursday, 9/6/2012 at 

5 1:30 p.m. for a litigation scheduling 

6 conference or perhaps hearing from you prior 

7 to Thursday, September 6, 2012 that you don,t 

8 need my services any more. 

9 With that, Mr. Berman, on behalf 

10 of the FAA, is there anything else that you 

11 would like to add or discuss on the record 

12 today? 

13 MR. BERMAN: No, Your Honor. 

14 JUDGE SULLIVAN: Mr. Winton, on 

15 behalf of the Respondent, anything else you 

16 would like to add or discuss? 

17 MR. WINTON: Nothing, Judge, but 

18 thank you for the opportunity. 

19 JUDGE SULLIVAN: Thank you very 

20 much for your time. Counsel, it appears our 

21 business is complete. We can go off the 

22 record and I wish you all a good day. 

NEAL R. GROSS 

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1 MR. WINTON: Thank you. 

2 MR. BERMAN: Thank you. 

3 JUDGE SULLIVAN: Thank you, bye4 bye. 

5 (Whereupon, at 1:47 p.m., the 

6 teleconference was concluded.) 

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Neal R. Gross & co., I nc. 

202-234-4433 

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Neal R. Gross & Co., Inc. 

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year 11:16 13:1,3 

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• 

• 

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C E R T I F I C A T E 

This is to certify that the foregoing transcript 

In the matter of: Fleet Aviation 

Before: us DOT 

Date: 07-09-12 

Place: teleconference 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

(202) 234-4433 

Court Reporter 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com