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### I Un: " , ,\;, attorneys an counse ors • www.gardere.com

Direct Dial: 713-276-5730 Direct Fax: 713-276-6730 Email: pmclauchlan@garderc.com

VIAUPS NEXTDAYAIR Federal AviationAdministration 600 Independence Avenue, SW 

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August 14, 2013

WilburWrightBuilding, Suite 2W1000 Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 

# RECEIVED AUG 142013 HEARING DOCKET

Re: FDMS No. FAA 2013-0286; 2011EA700202; In the Matter of Radio Holland USA, Inc.; U.S. Department of Transpmtation, Office of Hearings, Washington, D.C. Dear Sir orMadam: Enclosed please find an original and (1) one copy ofRadio Holland USA, Inc.'s Response to Complainant, Federal Aviation Admirlistration's Motion to Change Venue. I would appreciate your returning a date-stamped copy of the document to me in the enclosed self-addressed stamped envelope. Thank you for your assistance in tllis matter. If you have any questions or concerns, please do nothesitate to contactme.

PAM:seb Enclosure

GardereOI

- 6330270v.5 GARDERE WYNNE SEWELL llP Very truly yours,

# ~d.Ae~ Peter A. McLauchlan

1000 Louisiana, Suite 3400, Houston, Texas 77002-5011 • 713.276.5500 Phone • 713.276.5555 Fax Austin • Dallas • Houston • Mexico City

## us DEPARTMENT oF TRANSPORT

# AnoDE

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# V E 0 FEDERALAVIATION ADMINISTRATION' 1

. . OFFICE OF HEARINGS 

## AUG 142013

WASHINGTON, D.C. 

## ET HEARING DOCK In the Matter ofRadio Holland USA, Inc. FDMS No. FAA 2013-0286 Civil PenaltyAction The Honorable Richard C. Goodwin RESPONSE TO MOTION TO CHANGEVENUE COMES NOW Radio Holland USA, Inc. ("RH"), Respondent, and moves this Court to deny Complainant, Federal AviationAdministration ("FAA")'sMotionto Change Venue. I. On March4 2011, Damon Cole ("Cole") a RH's employee, traveled for business onboard
an US Airways commercial flight from Norfolk, Virginiato Jacksonville, Florida. As part ofhis engineeringjob, Cole travels to different U.S. destinations to service, repair and maintain electrohics and equipment onvessels andplatforms. Aftercompleting aprojectinNorfolk, Virginia, Colehadinhis checkedbaggage an Ultra Torch UT-lOOSI "Soldering Iron", an FAA non-prohibited tool. To Cole's surprise, upon arriving at his destination, he noticed that the Soldering Iron was seized by US Airways. Subsequent to its seizing, the Soldering Iron was tendered to FAA's Special Agent Louis Fernandez. On July 23, 2012, RH received a Notice of Proposed Civil Penalty and an Amended Notice on January 30, 2013. In these Notices, the FAA seeks to impose a civil penalty of $88,500.00 on RH alleging that Cole offered a Soldering Iron containing butane fuel inside a checkedluggage onboard ofapassenger carrying flight.
1It is Cole's practice and training that after he finishes a soldering job, he essentially releases all butane from the Soldering Iron's tank, as he well understands that butane is a hazardous material and only permitted aboard commercial flights in small quantities. This time
was not an exception. After fully releasing the butane from the Soldering Iron, Cole packed this tool in his checked baggage before he boarded US Airways flight 4804 from Norfolk, Virginia with onwardtravel to Jacksonville, Florida. II. On or about May 16, 2013 the FAA filed its request for the hearing to be held in Washington, D.C., along with its Complaint. OnMay 30, 2013, this Court enteredits Procedural Order, setting Houston, Texas as the venue. The Procedural Order also set the deadline for discovery in this matter to August 1, 2013. On July 29, 2013, two months after the Procedural Order was entered and three days before the close of discovery, the FAA filed its Motion to Change Venue (the "Motion"). The FAA's Motion comes atthe close ofdiscovery and atthe eve ofthehearing; therefore the venue should stayHouston, Texas. Under 14 C.F.R § 13.221(b), an Administrative Judge should considerthe convenience of the parties, location where the majority ofwitnesses reside or work, and whether the location is scheduled by an air carrier. This inquiry is completed when determining where venue should reside, not after the Court has already determined venue. Therefore, this Court's prior decision and weighing offactors deserves deference. The FAA's requested venue ofWashington D.C.
was made afterthe Court's designation ofHouston as the venue. Moreover, while a Court has the ability to alter the venue after it has entered the Procedural Order, a party can waive the ability to transfer venue ifit objects too late. In In the Matters ofBowden, FAA Nos. CP04EA0018 and CP04EA0017, 2005 WL 3279799 (D.O.T.

2November 30, 2005), the Court set the venue in Philadelphia. The Court recognized that the only consideration tying the case to Philadelphia was the location ofthe office of counsel for Respondent. 1 On the eve of the hearing, the Complainant filed a Motion to Change Venue, pointing to the fact that several witnesses were inPittsburgh andthat the Respondents were even from Pittsburgh. The Court, however, deniedthe Complainant'sMotion, stating: Complainant's arguments for a change inthe venue ofthe hearing wouldhavehad more force ifthey had been made several weeks ago. They are considerably less appealing when, as is here the case, they are first presented on the eve of the hearing. They lose all persuasive power when one takes into account, as I must, the fact that the Respondents have raised no objection to holding the hearing in Philadelphia. These cases have been pending for more than a year. One of the purposes of committing to an administrative hearing ofdisputes such as the ones at issue here is to secure prompt and informaljustice to the parties. It maybe regrettable that some ofthe complainant's witnesses cannot, because ofpersonal commitments, testify in Philadelphia on the date set for the hearing, but there is nothing in Complainant'smotionpapers which assured me that some otherdate would not be equally inconvenient for other witnesses, including those the Respondents intend to proffer. Just as in 

### In the Matters of Bowden, the FAA has waited too long to challenge
venue. The discovery period is now over, and the FAA sat on its hands for two months, while discovery was being conducted, before requesting this venue change. Respondent doed not object to Houston as the venue because its counsel is located in Houston, and unlike in D.C., Respondent maintains an office in Houston, Texas. This case has been pending for almost three (3) months, and accordingly, it is in the best interest ofprompt

1While the FAA citesIn the Matters ofTaughannnockAviation Corp., FAA Nos. CP08EA0001, CP08EA0002, and CP08EA0005, 2008 WL 2412566 (D.O.T. June 4, 2008) for the proposition that the location of Respondent's Counsel is not enough to justify venue, it is important to note that the court in that case heavily weighed Respondent's failure to file a response to Complainant's Motion to Change Venue. Radio Holland USA, Inc., however, vehemently opposes a venue change at this late date in the process. Moreover, Radio Holland USA, Inc. has additional ties to Houston, Texas beyond its counsel's location. For instance, Radio Holland USA, Inc. maintains an office in Houston, Texas. It, however, has no ties to WashingtonD.C. 3

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and informaljustice for this Courtto promptlyhear this case. To achieve this, the venue must remain Houston, Texas. PRAYER WHEREFORE PREMISES CONSIDERED, Radio Holland USA, Inc. respectfully requests this Court deny the FAA's Motion to Change Venue, and that venue remain in Houston, Texas, and for otherreliefat law orequitythat Radio Holland USA Inc. maybe justlyentitled. Respectfully submitted, GARDERE WYNNE SEWELL LLP 

### By

# ~dJt~

4 PeterA. McLauchlan Texas BarNo. 13740900 Anacarolina Estaba Texas BarNo. 24085298 1000 Louisiana Street, Suite 3400 Houston, Texas 77002 Telephone: 713.276.5370 Facsimile: 713.276.6370 Email: pmclauchlan@gardere.com Email: aestaba@gardere.com ATTORNEYSFORRESPONDENT, RADIO HOLLANDUSA, INC.-··

CERTIFICATE OF SERVICE I, Peter A. McLauchlan, do hereby certify that a true and correct copy ofthe foregoing instrument was served upon the following parties as indicatedbelow on this 14th day ofAugust, 2013, via facsimile andUPS next day delivery:

VIAUPS NEXT DAYDELIVERY & FACSIMILE Jeanine C. Gotimer Attorney at Law Federal AviationAdministration 1Aviation Plaza Jamaica, NY 11434 Fax: 718-995-5699 VIAUPS NEXT DAY DELIVERY & FACSIMILE The Honorable Richard C. Goodwin Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200New JerseyAvenue, S.E. (Ell-310) Washington, D.C. 20590 Fax: 202-366-7536 VIA UPS NEXT DAYDELIVERY ONLY Federal AviationAdministration (Original and one copy) 600 Independence Avenue, S.W. Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2W1000

GardereOI

- 6348820v.l PeterA. McLauchlan

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