## SERVED: MAY 10, 2012

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC 'lit 

### ! l "'·**sr~** L· 

### .:i

IN THE MATTER OF
SCOTT NOVAK
FAADOCKETNO. [TO BE ASSIGNED] (Civil Penalty Action)
FDMS NO. FAA-2012- 0206

PROCEDURAL ORDER
In orderto expedite the hearing inthis matter, the parties shall comply withthe Procedural Schedule set forth hereinbelow1• The Rules ofPractice for this proceeding are set forth in 14 C.F.R Part 13, Subpart G, ofthe Federal Aviation Regulations2• Those rules provide, inter alia, that the Respondent must file a written Answer ormotion withinthirty (30) days after service ofthe Complaint (14 C.F.R 

### § 13.209(a)), that a general denial is deemed a failure to file anAnswer(§ 13.209(e)), that failure to file an Answer without good cause is deemed an admission ofeach allegation inthe Complaint (§13.209(±)), andthat, absent agreement ofthe parties, a party seeking anextension of time must file a written motionnot less than seven (7) days before the document is due, absent good cause shown(§ 13.213(a) and (b)):
More specifically, 14 CFR 

### § 13.209 (e) states: A personfiling an answer shall admit, deny, or state thatthepersonis without sufficientknowledge orinformationto admit or deny, eachnumbered paragraph ofthe complaint. Any statement or allegation contained inthe complaintthatis not specifically denied inthe answer maybe deemedanadmission oHhetruth of that allegation. A general denial ofthe complaintis deemed a failure to file an answer. UnderFAA Order 2150.3B andthe Rules governingthese proceedings, the Agency attorney andthe Respondent are**~ncouraged** to considerthe possibility of

1Materials filed inthe FAAHearingDocket (exceptfor materials file4 in security cases) are also available for viewing at http://www.regulations.gov. 2 The Administrator's civilpenalty decisions, along withindexes ofthe decisions, the Rules ofPractice, as well as othermaterialsrelating to civil penalty cases, are available on the internet at: http://www faa.gov/ about/office_orglheadquarters _offices/ agc/poCadjudication/ agc400/civil _penalty/; see also: http://ecfr.gpoaccess.,gov/cgiltltextltext-idx?c=ecfr&tpl=l ecfrbrowse/Titlel4/14tab

_02.tpl. In addition, ThomsonReuters/WestPublishingpublishes FederalAviationDecisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw 9FTRAN-FAA database). For additional information, seethe Web site. 1settlement and compromise of this matter. 3 Compromise may be effected with or without a finding of violation (14 C.F.R. §13.16 (n) (1)). NOTE: This presiding Judge does not require "Discovery" to be served on the Judge. Other Judges have different policies, but as long as this case is assigned to the undersigned presiding Judge the parties may, but are not required, serve discovery on the undersigned. The judge will not discuss the case with any party, 4 or its representative on an ex parte basis. If a party has a non-substantive matter to discuss, they should contact the judge's attorney-advisor, Mr. Ira Leibowitz at (202) 366-2139 (lra.Leibowitz@dot.gov). Administrative matters may be addressed to the judge's, Legal Assistant, Pat Matthews [202-366-5121] (Patricia.Matthews@dot.gov). WHEREFORE, the parties be and are hereby ORDERED to adhere to the following procedural schedule: 1. Venue shall be Juneau, AK; 2. On or before July 1, 2012, the parties shall conclude all discovery including, but not limited to, depositions, document production, responses to production requests and/or interrogatories. If the parties cannot resolve a discovery dispute they shall submit the dispute to the undersigned for resolution in a timely manner; 3. The parties shall be prepared to present this case at a hearing on or after July 1, 2012 5 , subject to the availability of courtroom facilities. The specific date and time for the hearing will be forthcoming in a separate Order. 4. The parties will have the opportunity to file Post-Hearing briefs and arguments pursuant to a schedule to be determined at the hearing. For guidance, the following schedule is typically used: Complainant shall file its brief fifteen (15) days after receipt of the transcript; Respondent shall its brief fifteen ( 15) days thereafter; and anyrebuttal brief by the Complainant shall be filed seven (7) days thereafter. 3 See Linda Joyce Goodman, FAA Docket No. CP89WP0061, Order dated May 30, 1989. 4 "The public policy of favoring and encouraging settlement makes necessary the inadmissibility of settlement negotiations in order to foster frank discussions". (Fiberglass Insulators. Inc. v Dupuy, et al, (856 F. 2d 652, 26 Fed. R. Evid. Serv. 1225, 1988. See also Coakley & Williams Construction, Incorporated v Structural Concrete Equipment, Incorporated, 973 F.2d 349, 1992; 2 McCormick on Evid. §266 (6th ed.); Rule 68 of the Federal Rules of Civil Procedure.). Rule 408 of the Federal Rules of Evidence " ... prohibits the admission of statements made in compromise negotiations ... " (In the Matter of Africa Air Corporation, FAA Order No. 99-5). "Rule 408's public policy purpose of encouraging frank settlement discussions is as compelling in FAA civil penalty proceedings as it is in Federal Trials. Hence, its guidance will be followed in these proceeds." (Id.)

5 14 C.F.R. § 13.221 states: "The administrative law judge shall give each party at least 60 days notice of the date, time and location of the hearing." 2**~** \<5. Settled cases will not be removed from the hearing docket until the proper written pleading(s), consistent withthe applicable rules,6 is received bythe presiding judge.7
6. The parties are advised that submissions sentto the street address ofthe U.S. Department ofTransportation, Office ofHearings, may be delayed due to screening conducted by the U.S. Postal Service and/or other security agencies and may take up to four (4) weeks to bedelivered. Additionally, submissions maybe "irradiated", which affects the quality ofsubmissions. The parties are encouraged, butnot required, to file submissions by private delivery service, facsimile, or email. The certificate ofservice shall reflectthe manner ofservice. The parties are encouraged to provide email addresses to expedite service of pleadings.

Attachment

- Service List _ 

## ______.,
chard C. Gooawin

# ~---, .S. Administrative LawJudge

6 14 C.F.R. § 13.215 states: At any time before or during a hearing, an agency attorney may withdraw a complaint orpartymay withdraw a request for a hearing without the consent ofthe administrative law judge. Ifan agency attorney withdraws the complaint or a partywithdraws the request for a hearing andthe answer, the administrative lawjudge shall dismiss the proceedings underthis subpart with prejudice. 7 See: Inthe Matter ofLewis Drake & Associates, FAADocketNo. CP03S00045, DMS. No. FAA-2003- 16379, "OrderTerminatingProceeding", servedFebruary 26, 2005; citing Kerry James Eldridge, FAA Docket CP89GL0458, "OrderCancelingHearing and TerminatingProceeding", servedJanuary 16, 1991, at 1; InThe Matter ofRobertHarris FAA DocketNo. CP03EAOOOl. DMS No. FAA-2002-14236., Orders dated October 18,2004 and October 27,2004. USAIR, Inc., FAA Docket CP90NE0359, Trans World Airlines, Inc., FAA Dockets CP90GL0085, CP90CEO110, CP90CEO114, CP90CEO 134, Order of Administrative Law Judge Burton S. Kolko, served April 8, 1992,p. 2. See "OrderDismissing Complainant's Appeal". In The Matter ofRobert Harris, FAADocketNo. CP03EA0001. DMS No. FAA2005-14, August 15,2005.
3SERVICE LIST ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1 000 1 ONE COPY Joseph W. Geldhof, Respondent's Counsel 2 Marine Way, Suite 207 Juneau, AK 99801 TEL: 907-586-8193 MOBILE: 907-723-9901 E-mail: joeg@alaska.com Howard L. Martin, Jr., Complainant's Counsel Regional Counsel, Office ofRegional Counsel, AAL-7 Alaskan Region

Federal Aviation Administration 222 W. ih Avenue #14 Anchorage, AK 99513-7587 TEL: 907- 271-5269 FAX: 907- 271-2800

FDMS No. FAA-2012-0206 (Civil Penalty Action) The Honorable Richard C. Goodwin, 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: 202-366-2139 Attorney-Advisor 202-366-5121 Staff Assistant FAX: 202-366-7536

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S. W., Wilbur Wright Building-Suite 2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.**~ -~**  -.,