**~** 

### SERVED: AUGUST 27, 2012

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC

IN THE MATTER OF SKYWEST AIRLINES FAA DOCKET NO. [TO BEASSIGNED] (Civil Penalty Action) FDMS NO. FAA-2012

- 0868

PROCEDURAL ORDER 

### 28

In orderto expedite the hearing in this matter, the parties shall complywith the Procedural Schedule set forth hereinbelow 1• The Rules ofPractice for this proceeding are set forth in 14 C.P.R. Part 13, Subpart G, ofthe Federal Aviation Regulations2• Under FAA Order 2150.3B and the Rules governing these proceedings, the Agency attorney and the Respondent are encouraged to consider the possibility of settlement and compromise ofthis matter. 3 Compromise may be effected with or without a finding ofviolation (14 C.P.R. §13.16 (n) 

### (1)). NOTE: This presiding Judge does notrequire "Discovery" to be servyp_ onthe Judge. OtherJudges have differentpolicies, but as long as this case is assigned to the undersigned presiding Judge the parties may, but are notrequired, serve discovery onthe undersigned. Thejudgewill not discuss the case with any party,4 or its representative on an ex parte basis. Ifa party has abon-substantive matter

### to discuss, they should contactMr.

1 Materials filed in the FAA Hearing Docket (except for materials filed in seci.rrity cases

### 2are also available for viewing at http://www.regulations.gov. 2 The Administrator's civilpenalty decisions, along with indexes ofthe decisions, the Rules ofPractice, as well as other materials relating to civil penalty cases, are available onthe internet at: http:1 /www.faa.gov/ about/ office_org/headquarters _offices/ age/pol_acijudicationl agc400/civil _penalty/; see . also: http://ecfr.gpoaccess.gov/cgi/tltextltext-idx?c=ecfr&tpl=lecfrbrowse/Titlel4/ 14tab

_02.tpl. In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and Westlaw 9FTRAN-FAA database). For additional information, see the Web site. 3 See LindaJoyce Goodman, FAA DocketNo. CP89WP0061, Order dated May 30, 1989. 4 "Thepublic policy offavoring and encouraging settlement makes necessary the inadmissibility of settlement negotiations in orderto 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 ofthe Federal Rules ofCivil Procedure.). Rule 408 ofthe Federal Rules of 1 

### q: 

## 12Ira Leibowitz at (202) 366-2139 (Ira.Leibowitz@dot.gov). Administrative matters may be addressed to StaffAssistant, 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 Salt Lake City, UT.; 2. On orbefore November 9, 2012, the parties shall conclude all discovery including, but not limited to, depositions, document production, responses to production requests and/or interrogatories. Ifthe 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 orafter November 9, 20125

, subject to the availability ofcourtroom facilities. The specific date and time for the hearing will be forthcoming in a separate Order. 4. The parties will have the opportunityto file Post-Hearing briefs and arguments pursuant to a schedule to be determined attJ:le hearing. For guidance, the following schedule is typically used: Complainant shall file its brieffifteen (15) days after receipt ofthe transcript; Respondent shall its brieffifteen (15) days thereafter; and any rebuttal briefby the Complainant shall be filed seven (7) days thereafter. 5. Settled cases will not be remoyed from the hearing docket untii'the proper written pleading(s), consistent with the applicable rules,6 is received by the presidingjudge.7

Evidence "

...prohibits the admissl'on ofstatements made in compromise negotiations

..." (In the Matter of Africa Air Corporation, FAA OrderNo. 99-5). "Rule408'spublic policypurpose ofencouragingfrank 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 lawjudge shall give each party atleast 60 days notice of the date, time and location ofthe hearirig." 6 14 C.F.R. § 13.215 states: At any time before or during a hearing, an agency attorney may withdraw a complaint orparty may withdraw a request for a hearing without the consent ofthe administrative law judge. Ifan agency attorneywithdraws the complaint or a party withdraws the request for a hearing and the answer, the administrative lawjudge shall dismiss the proceedings under this subpart withprejudice. 7 See: In the Matter ofLewis Drake & Associates, FAA DocketNo. CP03S00045, DMS. No. FAA-2003- 16379, "Order Terminating Proceeding", served February 26, 2005; citing Kerry James Eldridge, FAA Docket CP89GL0458, "OrderCanceling Hearing and Terminating Proceeding", servedJanuary 16, 1991, at 1; In TheMatterofRobertHarrisFAA Docket No. CP03EA0001. 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, CP90CE0110, CP90CE0114, CP90CE0134, Order of Administrative Law Judge Burton S. Kolko, served April 8, 1992, p. 2. See "OrderDismissing 26. The parties are advised that submissions sent to 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 be delivered. Additionally, submissions may be "irradiated", which affects the quality ofsubmissions. The parties are encouraged, but not required, to file submissions byprivate delivery service, facsimile, or email. The certificate ofservice shall reflect the manner ofservice.

U.S. Administrative Law Judge Attachment

- Service List

.,

Complainant's Appeal". In The Matter ofRobert Harris, FAA Docket No. CP03EAOOOI. DMS No. FAA2005-14, August 15, 2005. 

### 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 2W1000 1

Todd C. Emerson, 

### Respondent's Counsel Director- Government and Legal Affairs SkyWest Airlines 444 South River Road St. George, UT 84790 TEL: 435-634-3530 FAX: 435-634-3505 

### ONE COPY

Jeffrey M. Harper, 

### Complainant's Counsel Attorney, Office ofRegional Counsel Northwest Mountain Region, ANM-7 Federal Aviation Administration 1601 Lind Avenue, S.W. Renton, WA 98057 TEL: 425-227-2161 FAX: 425-227-1007 The Honorable Richard C. Goodwin,

### Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant FAX: 202-366-7536 FDMS No. FAA-2012-0868 (Civil Penalty Action)



# ..

1 Service was by U.S. Mail. For service in person orby expedited courier, use the followingaddress: Federal Aviation Administration, 600 Independence Avenue, S.W., WilburWright Building-Suite 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.