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d l J"'.~A\t I Un: " , ,\;, attorneys an counse ors • www.gardere.com 

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Email: pmclauchlan@garderc.com 

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Federal Aviation Administration 

600 Independence A venue, SW 

ZCIJ :~us 23 P l: ~·1 

August 14, 2013 

Wilbur Wright Building, Suite 2W1 000 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

RECEIVED 

AUG 1 4 2013 

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 or Madam: 

Enclosed please find an original and (1) one copy of Radio 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 not hesitate to contact me. 

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 C E \ V E 0 

FEDERAL AVIATION ADMINISTRATION' 1 . . 

OFFICE OF HEARINGS AUG 1 4 2013 

WASHINGTON, D.C. ET 

HEARING DOCK 

In the Matter of Radio Holland USA, Inc. 

FDMS No. FAA 2013-0286 

Civil Penalty Action 

The Honorable Richard C. Goodwin 

RESPONSE TO MOTION TO CHANGE VENUE 

COMES NOW Radio Holland USA, Inc. ("RH"), Respondent, and moves this Court to 

deny Complainant, Federal Aviation Administration ("FAA")' s Motion to Change Venue. 

I. 

On March 4 2011, Damon Cole ("Cole") a RH's employee, traveled for business onboard 

an US Airways commercial flight from Norfolk, Virginia to Jacksonville, Florida. 

As part ofhis engineering job, Cole travels to different U.S. destinations to service, repair 

and maintain electrohics and equipment on vessels and platforms. 

After completing a project in Norfolk, Virginia, Cole had in his checked baggage 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 

checked luggage on board of a passenger carrying flight. 

1 
It 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 onward travel 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. On May 30, 2013, this Court entered its 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 at the close of discovery and at the eve 

ofthe hearing; therefore the venue should stay Houston, Texas. 

Under 14 C.F.R § 13.221(b), an Administrative Judge should consider the convenience of 

the parties, location where the majority of witnesses 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 of factors deserves deference. The FAA's requested venue of Washington D.C. 

was made after the Court's designation of Houston 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 if it objects too late. In In the 

Matters of Bowden, FAA Nos. CP04EA0018 and CP04EA0017, 2005 WL 3279799 (D.O.T. 

2 
November 30, 2005), the Court set the venue in Philadelphia. The Court recognized that the 

only consideration tying the case to Philadelphia was the location of the 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 in Pittsburgh and that the Respondents were even 

from Pittsburgh. The Court, however, denied the Complainant's Motion, stating: 

Complainant's arguments for a change in the venue of the hearing would have had 

more force if they 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 of disputes such as the ones at issue here 

is to secure prompt and informal justice to the parties. It may be regrettable that 

some of the complainant's witnesses cannot, because of personal commitments, 

testify in Philadelphia on the date set for the hearing, but there is nothing in 

Complainant's motion papers which assured me that some other date 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 

1 While the FAA cites In 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 Washington D.C. 

3 
.. 

and informal justice for this Court to promptly hear 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 other relief at law or equity that Radio Holland USA Inc. may be 

justly entitled. 

Respectfully submitted, 

GARDERE WYNNE SEWELL LLP 

By ~dJt~ 

4 

Peter A. McLauchlan 

Texas Bar No. 13740900 

Anacarolina Estaba 

Texas Bar No. 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 

ATTORNEYS FOR RESPONDENT, 

RADIO HOLLAND USA, INC. 
-·· 

CERTIFICATE OF SERVICE 

I, Peter A. McLauchlan, do hereby certify that a true and correct copy of the foregoing 

instrument was served upon the following parties as indicated below on this 14th day of August, 

2013, via facsimile and UPS next day delivery: 

VIA UPS NEXT DAY DELIVERY & FACSIMILE 

Jeanine C. Gotimer 

Attorney at Law 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

Fax: 718-995-5699 

VIA UPS NEXT DAY DELIVERY & FACSIMILE 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, D.C. 20590 

Fax: 202-366-7536 

VIA UPS NEXT DAY DELIVERY ONLY 

Federal Aviation Administration (Original and one copy) 

600 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building -Suite 2W1 000 

GardereO I - 6348820v.l 

Peter A. McLauchlan 

5