( 

SERVED: FEBRUARY 17, 2011 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

MICHAEL KILDUFF 

FAA DOCKET NO. [TO BE ASSIGNED] 

(Civil Penalty Action) 

FDMS NO. FAA-2011-0063 

ORDER OF CHIEF ADMINISTRATIVE LAW JUDGE 

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 law judge was assigned to this proceeding by Notice 

served,February 17,2011. 

The Rules of Practice for this proceeding are set forth in Part 13, Subpart G, of the Federal Aviation Regulations (14 C.F.R. §§ 13.201-13.235 (2010)). Those rules provide, inter alia, 

that Respondent must file a written answer or motion within 30 days after service of the 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 of each allegation in the 

complaint (§ 13 .209(f)); and that a party seeking an extension of time must file a written motion 

at least seven days before the document is due, absent agreement of the parties or good cause 

shown (§ 13.213(a), (b)). 

To expedite the hearing in this matter, Complainant and Respondent, on or before March 
17,2011, shall file (I) any amendment of the 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 of witnesses, a summary of their 

proposed testimony, and for (b) exchanging exhibits and discovery, if any; (3) a statement concerning the status of settlement efforts; and (4) a proposed hearing site and, absent agreement of 

the parties, ajustification of the proposed site. See 14 C.F.R. § 13.217. 

Under FAA Order 2150.3B (Oct. 1,2007) and the Rules governing these proceedings, 

Complainant and Respondent should continue to consider the possibility of settlement and compromise of this 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 of this 

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 of Sanctions), pages 

B-I-B8 (Pati One - Abbreviations and Definitions) at1d those portions of Part 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 of Respondent, 

Complainant shall provide Respondent a copy of the 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 of that provision would prevent orderly preparation for a hearing and could prevent any hearing at all, because notice of a hearing must be given 60 days in advance. 

§ 13 .221 (a). An amendment that might be filed 15 days prior to the hearing would entitle the other party up to 20 days in 

which to reply (§ I 3.2 I 4(c)), and could generate a new round of schedules (§ 13.217), motions (§ 13.218), and discovery 

(§ 13.220), necessitating a postponement ofthe hearing, a new 60-day notice, el celera ad infinitum. 

2 See Linda Joyce Goodman, FAA Docket No. CP89WP0061, DMS No. FAA-2004-18292, at II (May 30, 

1989), available al www.regulations.gov (concluding that "the prosecuting agency attorney must consider settlement and that the Rules do not permit the Chief Counsel to exercise policy control or decisionmaking in this case or 

in civil penalty cases generally so as to deny prosecutorial discretion with respect to settlement and compromise to 

the agency attorney as defined in the rules"). See also Exec. Order No. 12,988,61 Fed. Reg. 4729 (Feb. 5, 1996), 

which refers to facilitating the just and efficient resolution of civil claims involving the United States Government 

and directs Federal agencies and their litigation counsel to, "as soon as practicable after ascertaining the nature of a 

dispute in litigation, and throughout the litigation, ... evaluate settlement possibilities 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; By Number," then 

"2150.3B I 0/01/2007 FAA Compliance and Enforcement Program (Change I included)." 

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Submissions sent to the street address of the U.S. Department of Transportation, 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, or personally deliver 

those submissions. A certificate of service, reflecting the above caption, the title of the submission, and the date and manner of service, shall be attached to each individual submission. 

Compromise may be effected with or without a finding of violation (§ 13.16(n)). Each 

party's filing shall include a telephone number where the party can be reached by the Judge for 

prehearing telephone conferences. 

SO ORDERED. 

/-/ 

/' )~ L--- ) .. ' 

Ronnie A. (Y od 

Chief Administrati'vt aw Judge 

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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 2WI 0004 

Michael Kilduff, Respondent 

430 Jackson Street 

Woodstock, VA 22664 

TEL: 

FAX: 

ONE COPY 

Yolanda Ayala Bernal, Complainant's Counsel 

Safety Enforcement Branch 

Southwest Region, ASW-7E3, YAB 

Office of the 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 Law Judge 

U.S. Department of Transportation 

Office of Hearings, M-20, Room E12-320 

1200 New Jersey 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-Suite 2W1000, Washington, 

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

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