### ( 

### SERVED: FEBRUARY 17, 2011 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC
IN THE MATTER OF MICHAEL KILDUFF FAA DOCKETNO. [TO BEASSIGNED] (Civil Penalty Action) FDMS NO. FAA-2011-0063


### ORDEROF CHIEFADMINISTRATIVE LAWJUDGE ESTABLISHING PROCEDURES This proceeding arises from a complaint served January 26, 2011, alleging violation of the Federal Aviation Act/Regulations, and Respondent's request for hearing dated August 24, 2010. The undersigned administrative lawjudge was assignedto this proceeding byNotice served,February 17,2011. The Rules ofPractice for this proceeding are set forth in Part 13, Subpart G, ofthe Federal Aviation Regulations (14 C.F.R. §§ 13.201-13.235 (2010)). Those rules provide, 

### inter alia, that Respondent mustfile a written answer or motion within 30 days after service ofthe complaint (§ 13.209(a)); that a general denial is deemed a failure to file an answer (§ 13.209(e)); that failure to file an answer without good cause is deemed an admission ofeach allegation in the complaint (§ 13.209(f)); and that a party seeking an extension oftime mustfile a written motion at least seven days before the document is due, absent agreement ofthe parties or good cause shown 

### (§ 13.213(a), (b)). To expedite the hearing in this matter, Complainant and Respondent, on orbefore March

### 17,2011, shall file (I) any amendment ofthe complaint or answer;! 

### (2) an agreed or separate proposed procedural schedules, including proposed dates 

### (i.e., specific dates, not merely numbers or days before the hearing) for (a) filing stipulations, a list ofwitnesses, a summary oftheir proposed testimony, and for (b) exchanging exhibits and discovery, ifany; (3) a statement concerning the status ofsettlement efforts; and (4) a proposed hearing site and, absent agreement of the parties, ajustification ofthe proposed site. See 

### 14 C.F.R. § 

### 13.217. Under FAA Order 

### 2150.3B (Oct. 

### 1,2007) and the Rules governingthese proceedings, Complainant and Respondent should continue to considerthe possibility ofsettlement and compromise ofthis matter. 2 In connection with such discussions, the parties should note that FAA Order 

### 2150.3B, which establishes standards for the Complainant's conduct and settlement ofthis proceeding, is available on the Internet.3 See, in particular, chapter 6 (Legal Enforcement Actions and Legal Counsel Responsibilities); and either (a) Appendix B (Table ofSanctions), pages 

### B-I-B8 (Pati One

- Abbreviations and Definitions) at1d those portions ofPart Two

- Sanction Guidance Tables, which apply to patiicular allegations not involving hazardous materials; or (b) Appendix C, which pertains to hazardous materials cases. Upon request ofRespondent, Complainant shall provide Respondent a copy ofthe applicable referenced provisions.

I Fmther amendments are not anticipated absent good cause shown. Though 14 C.F.R. § 13.214(b)(l) permits amendments at any time more than 15 days before a hearing, utilization ofthatprovision would prevent orderly preparation for a hearing and could prevent any hearing at all, because notice ofa hearing must be given 60 days in advance. § 13.221(a). An amendment that might be filed 15 days priorto the hearing would entitle the otherparty up to 20 days in which toreply (§ I3.2I4(c)), and could generate a new round ofschedules (§ 13.217), motions (§ 13.218), and discovery (§ 13.220), necessitating a postponement ofthehearing, a new 60-day notice, el celera adinfinitum. 2 SeeLindaJoyce Goodman, FAA DocketNo. CP89WP0061, DMS No. FAA-2004-18292, at II (May 30, 1989), available al www.regulations.gov (concludingthat "the prosecuting agency attorney must consider settlement and thatthe Rules do not permitthe ChiefCounsel to exercise policy control or decisionmaking in this case or in civil penalty cases generally so as to deny prosecutorial discretion with respectto settlement and compromise to the agency attorney as defined in the rules"). See also Exec. OrderNo. 12,988,61 Fed. Reg. 4729 (Feb. 5, 1996), which refers to facilitating thejust and efficientresolution ofcivil claims involvingthe United States Government and directs Federal agencies and their litigation counsel to, "as soon as practicable after ascertaining the nature ofa dispute in litigation, and throughout the litigation,
... evaluate settlementpossibilities and make reasonable effOlts to settle the litigation." See also FAA Order 2150.3B at paragraph 6-2. 3 Accessed at http://rgl.faa.gov by selecting "Orders/Notices," then "Current Orders; ByNumber," then "2150.3B I0/01/2007FAA Compliance and EnforcementProgram (Change I included)." 

### -2-Submissions sent to the street address ofthe U.S. Department ofTransportation, Office of Hearings, by regular mail may be delayed up to four weeks due to postal screening, and may be "irradiated," which may result in pages being fused together. Accordingly, parties who serve submissions on the Judge by regular mail should also fax, express carrier, orpersonally deliver those submissions. A certificate ofservice, reflecting the above caption, the title ofthe submission, and the date and manner ofservice, shall be attached to each individual submission. Compromise may be effected with or without a finding ofviolation (§ 13.16(n)). Each party's filing shall include a telephone numberwhere the party can be reached by the Judge for prehearing telephone conferences.
SO ORDERED. 

# /-/ /'

# )~ L--- )
.. ' Ronnie A.(Yod ChiefAdministrati'vt awJudge



### -3-

### SERVICE 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 2WI0004



### Michael Kilduff, Respondent 

### 430 Jackson Street Woodstock, VA 22664 TEL: FAX: 

### ONE COPY

YolandaAyalaBernal, Complainant's Counsel 

### Safety Enforcement Branch Southwest Region, ASW-7E3, YAB Office ofthe Regional Counsel Federal Aviation Administration 2601 Meacham Blvd., Room 663 Fort Worth, TX 76137-0007 TEL: 817-222-5070 FAX: 817-222-5945/5092 

### The Honorable Ronnie A. 

### Yoder,

Chief Administrative LawJudge 

### U.S. Department ofTransportation Office ofHearings, M-20, Room E12-320 1200 NewJersey Avenue, S.E. Washington, DC 20590 TEL: 202-366-2142 FAX: 202-366-7536 FDMS No. FAA-2011-0063 (Civil Penalty Action)

4 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-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430. -4-