SERVED: SEPTEMBER 11, 2012 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

MOUNTAIN AVIATION 

FAA DOCKET NO. [TO BE ASSIGNED] 

(Civil Penalty Action) 

FDMS NO. FAA-2012- 0875 

PROCEDURAL ORDER 

· In order to expedite the hearing in this matter, the parties shall comply with the 

Procedural Schedule set forth hereinbelow1

. The Rules of Practice for this proceeding 

are set forth in 14 C.P.R. Part 13, Subpart G, of the Federal Aviation Regulations2

• 

Those rules provide, inter alia, that the Respondent must file a written Answer or motion 

within thirty (30) days after service of the Complaint (14 C.P.R. § 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, absent agreement of the parties, a party seeking an extension of 

time must file a written motion not 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 person filing an answer shall admit, deny, or state that the person is without 

sufficient knowledge or information to admit or deny, each numbered paragraph 

of the complaint. Any statement or allegation contained in the complaint that is · 

not specifically denied in the answer may be deemed an admission of the truth of 

that allegation. A general denial of the complaint is deemed a failure to file an 

answer. 

Under FAA Order 2150.3B and the Rules governing these proceedings, the 

Agency attorney and the Respondent are encouraged to consider the possibility of 

1 Materials filed in the FAA Hearing Docket (except for materials filed in security cas~) are also available 

for viewing at http://w;vw.regulations.gov. 

2 The Administrator's civil penalty decisions, along with indexes of the decisions, the Rules of Practice, as 

well as other materials relating to civil penalty cases, are available on the internet at: . http://wwwfaa.gov/aboutloffice _ org/headquarters _ officeslagclpol_ adjudicationlagc400/civi I _penalty/; see 

also: http:llecfr.gpoaccess.govlcgiltltextltext-idx?c=ecfr&tpl =/ecfrbrowse!Title 14/ 14tab _ 02. tpl. In 

addition, Thomson .Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions 

are available through LEXIS (TRANS library) and WestLaw 9FIRAN-F AA database). For additional 

information, see the Web site. · 

1 
settlement and compromise of this matter. 3 Compromise may be effected with or 

without a finding of violation (l1 .. C.:E.R. . ..§13 ... HHntO.U. 

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 Mr. 

Ira Leibowitz at (202) 366-2139 Qra.Leibowitz@dot.gov). Administrative matters may 

be addressed to Staff 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 Denver, CO.; 

2. On or before November 9, 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 

November 9, 20125

, subject to the availability of courtroom facilities. The 

specific date and·time for the hearing will be forthcoming in a sepatate 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 any rebuttal 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 Comoration. 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." (ld.) 

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. Settle.d cases wil~ not be ~-emoved fr~n:t the hearing docket tmtil the proper written 

. pleadmg(s), consistent WJth the applicable n\les, 6 is received by the presiding · · J~~7 • 

6. . -~~- ~-~~- ·~~~ ad'1sed tk/ ~ubrrrlssi~ri~ ·sent -~o the street. address of the U.s. J?~~m.~en~.?fTi'~po~tatioll, Office ofH;'&~ing~ •.. may be delayed due to· 

,~cr~9ll7:g ~ond,t~gt¥.,1JY the U.S. Po~l Service ·and/qf oth~r·sebUrit)' agenCies and ~Y. ~cr..~~ t~ ~otu· ( 4). weeks to be deliy~red.. Addi~on~ly; ~~binissioiis may be 

~~-~~, whip~affectsthequ~ty; of.~~p~si<?ns •. Thepartiesru.·e: ;,:·· .. ·. ·: 

en.~~~ed, l;>~t ·~ot ·reqt1:ir~ to_,file subpli_§~~DS;·by·:B~lY,at¢ qelivezy· seryic~/ • · fa~·~r' or emap.. n.e ~ertifi~ate of s~rvice shall reflect ·the liiaiiner bf s.ervice. 

The pru.iies are encouraged to provi~e email adciresses to expedite -serv-i~€ of 

plea!iings. '"' 

Attachment- Setvice List 

6 14 C.F.R § 13.215 states: At any time before or during. a hearing, an agency attorney may withdraw a 

complaint or party may withdraw a request for a hearing without the consent of the administrative law 

judge. If an agency attorney withdraws the complaint or a party withdraws the request for a hearing and the 

answer, the administtative Jaw judge shall dismiss the proceedings under this subpart with prejudice. 

7 See: In the Matter of Lewis Drake & Associates. FAA Docket No. CP03S00045, DMS. No. F AA-2003-

16379, "Order Terminatipg Proceeding'', served Februmy 26, 2005; citing Kcrrv James Eldridge, FAA 

Docket CPS9GL0458, "Order Canceling Hearing and Terminating Proceeding", served January 16, 1991, 

at 1; In lJ!.e Matter ofRq_~rt Harris FAA Dqcket NQ. CPQJpAO,illU. DMS No. F AA-2002-14236., Orders 

dated October 18, 2004 and October 27,2004. US1\1B.JP._q .. F~ Doc.!<~tCP90~.Q.35~ :r.ws World 

Airlines. Inc .• FAA Dockets CP90GL0085. CP90CE0110. CP90CE0114. CP90CE0134, Order of 

Administrative Law Judge Burton S. Kolko, served AprilS, 1992, p. 2. See "Order J?ismissing 

Complainant's Appeal". In The MatterofRobertHanis, FAA Docket No. CP03EA0001. DMS No. FAA2005-14, August 15, 2005. 

3 

I 

I 

/ 
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 2W10001 

KentS. Jackson, Respondent's Counsel 

Jackson & Wade, LLC 

2168 Midland Drive 

Shawnee, KS 66218 

TEL: 913-338-1700 

FAX: 913-338-1755 

ONE COPY 

Kyle E. Lomazow, Complainant's Counsel 

Attorney, Office of Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue, S.W. 

Renton, WA 98057 

TEL: 425-227-1847 

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. (Ell-31 0) 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Staff Assistant 

FAX: 202-366-7536 

FDMS No. FAA-2011-0875 

(Civil Penalty Action) 

1 Service was by U.S. Mail. For service in person or by e":pedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, 

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