RECEIVED 

DEC 1 2 2013 

HEARING DOCKET 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

- - - - - - X 

In the Matter of 

NORTHEASTERN AVIATION CORP., Docket No.: FAA-2012-1264 

Respondent. 

- - - - X 

U.S. Department of Transportation 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

(E11-310) 

Washington, D.C. 20590 

Thursday, November 14, 2013 

PREHEARING STATUS CONFERENCE (TELEPHONIC) 

The above-entitled matter came on for hearing at 

10:32 a.m., pursuant to notice. 

BEFORE: HON. J.E. SULLIVAN, U.S. Administrative Law Judge 

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APPEARANCES: 

For the Respondents: 

JAMES EHRIG, ESQ. (By telephone) 

KATE MOORE, ESQ. (By telephone) 

Eckert Seamans Cherin & Mellot, LLC 

1717 Pennsylvania Avenue, N.W., 12th Floor 

Washington, D.C. 20006-4604 

(202) 659-6672 

For the Agency: 

ZACHARY M. BERMAN, ESQ. (By telephone) 

Office of the Regional Counsel (AE-7) 

Federal Aviation Administration 

Eastern Region 

l Aviation Plaza 

Jamaica, New York 11434 

(718) 553-3258 

Observer: 

CODY L. SMITH, Attorney-advisor 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 

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1 P R 0 C E E D I N G S 

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JUDGE SULLIVAN: We are on the record in the matter 

of Northeastern Aviation Corporation. This is Docket Number 

4 FAA-2012-1264. Today is Thursday, November 14, 2013, and the 

5 parties have convened for a prehearing status conference. 

6 Just in terms of recent history, note that on May 

7 14, 2013, there was an order issued resetting the Rule 16 

8 Litigation Scheduling Conference from May 20, 2013, to 

9 Tuesday, June 4, 2013. The parties then appeared on June 4, 

10 2013, for the Rule 16 Litigation Scheduling Conference; and, 

11 subsequently, there was a June 5, 2013 corrected order 

12 setting litigation dates and procedures, which, among other 

13 things, set today's date and time for a telephone conference. 

14 Mr. Berman, I'm going to turn to you first. There 

15 were no dispositive motions filed by either party. We do 

16 have a trial scheduled for January 28, 2014, through January 

17 29, 2014, and in the New York City area. Can you apprise me 

18 on the status of the case at this point. 

19 MR. BERMAN: Well, the status of the case is that 

20 we've exchanged discovery. I just spoke a few minutes ago 

21 with Mr. Ehrig, and we've discussed the possibility of 

22 settlement. And I'm disappointed it doesn't look like we are 

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1 going to settle. 

2 JUDGE SULLIVAN: Okay. Then can you tell me if 

3 you're still going to need 1-1/2 days for hearing time? Is 

4 that a safe estimate? 

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MR. BERMAN: It sounds like an accurate estimate. 

JUDGE SULLIVAN: Okay. Anything else that you 

7 would like to note before I turn to Mr. Ehrig? 

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s MR. BERMAN: No, just that we are going to -- well, 

9 I spoke to Mr. Ehrig, as I said, a few minutes ago, and 

10 there's one witness that we both want to have testify. And 

11 we were talking about how we do that. And I would like to --

12 I'm going to request a subpoena for that witness. So how do 

13 I know if Mr. Ehrig also wants to -- if I do that, if he also 

14 wants to request a subpoena? But, that's all. 

15 JUDGE SULLIVAN: Okay. Mr. Ehrig, turning to you 

16 next, the case is still planned for trial, as I understand 

17 it, in the New York City area. And was there anything you 

18 would like to add to what Mr. Berman has just said, or 

19 correct or change? 

20 MR. EHRIG: I agree with everything Mr. Berman just 

21 said. I think the length of the hearing is probably 

22 accurate. It might even just take a day, but let's reserve 

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1 it the second day just in case. And, we as well want to 

2 subpoena Mr. Kalish, both the FAA and my client would like to 

3 subpoena him. So just how would Your Honor like to handle 

4 that as far as I'm not sure it makes sense to issue you 

5 two requests for a subpoena. 

6 JUDGE SULLIVAN: No. I don't think it makes sense 

7 either. So let me just take a look at the rule. And, Mr. 

8 Berman, I'm going to turn to you. Do you want to point me to 

9 the rule, the specific rule right away, or should I just kind 

10 of hunt a little bit on my own? 

11 MR. BERMAN: I don't have it off the top of my 

12 head, and I don't even have it. 

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14 

JUDGE SULLIVAN: Okay. Well, in that time I was 

able to find it. Thank you. It's 14 C.F.R. § 13.228, so I'm 

15 just looking to see if there's anything in particular. 

16 [Pause.] 

17 JUDGE SULLIVAN: I think, probably, after looking 

18 at the regulation, what I'm going to suggest to the parties 

19 is this. You can either move jointly for the issuance of the 

20 subpoena, or you can have Mr. Berman do it, since he's the 

21 prosecuting agent. In any event, you would need to submit a 

22 request in writing with the name of the individual, the 

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1 address of the individual, the purpose of his testimony for 

2 the FAA, in general the purpose of his testimony for the 

3 responding party. It would be helpful if you also identify 

4 whether or not you have come to an agreement about paying 

5 this individual's cost for attendance, particularly if he's 

6 outside of New York City Metro area. 

7 Any person who is subpoenaed should have costs, 

8 attendant costs paid for by the subpoenaing party. If 

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9 there's particular language that you would like to have as 

10 part of subpoena in terms of notifying this individual about 

11 how to challenge the subpoena, that should be included in 

12 your motion, since that particular language should be 

13 included in any subpoena that's issued from this office. 

14 If you have a preferred subpoena form, you're 

15 welcome to proffer it. That's not necessarily an indication 

16 that I would accept it. I have a bank of subpoena forms that 

17 I generally use; but, if there's something that is preferred 

18 for the locale in which this person is going to get served 

19 in, that's helpful to know. 

20 MR. BERMAN: Should this be in the form of a motion 

21 to you, Your Honor? Or, in the past, what I've done is 

22 written an e-mail to Stephanie McLain, the hearing docket 

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1 clerk. Would that suffice to just write an e-mail to Ms. 

2 McLain with that information? 

3 JUDGE SULLIVAN: You can do that, but she would 

4 still need to -- you can do that, and the hearing docket 

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5 clerk can issue the subpoena, but I can also issue it, if you 

6 look at the rule. So, essentially it says, and I quote, "The 

7 hearing docket clerk shall deliver the subpoena signed by the 

8 hearing docket clerk or an administrative law judge, but 

9 otherwise in blank to the party." 

10 MR. BERMAN: Okay. 

11 JUDGE SULLIVAN: So you can pursue a subpoena 

12 through the hearing docket clerk, if you like, or you can 

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pursue it through me. 

MR. BERMAN: Thank you. 

JUDGE SULLIVAN: Okay. Next question. Since the 

16 case is proceeding to trial, I wanted to get an idea from 

17 both of you as to preferred locales, either within New York 

18 City area or outside the general New York City area. And I'm 

19 going to start with you, first, Mr. Berman. 

20 In the past, what has been a readily available 

21 locale, since I will need to have my staff start looking for 

22 a location for the trial? 

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1 MR. BERMAN: In general, in the past we've had 

2 hearings at 26 Federal Plaza in Manhattan. But there's also 

3 -- I've never done a hearing there, but there's also space 

4 available, I understand -- although I'm not sure, 

5 necessarily, the date that we have in mind -- at Central 

6 Islip Federal Courthouse. 

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JUDGE SULLIVAN: Okay. 

MR. BERMAN: Which would be, actually, probably 

9 more convenient for my witnesses, because it's in Long 

10 Island. 

11 JUDGE SULLIVAN: Right. We've had good luck 

12 getting court space there, as well. 

13 Mr. Ehrig, do you have any preferred locales or 

14 recommended locales for my staff? 

15 MR. EHRIG: Well, Manhattan's preferable, but if 

16 the FAA thinks that their witnesses will be easier for the 

17 Long Island, that's fine. We're not going to object to that. 

18 JUDGE SULLIVAN: Okay. We'll see what we can come 

19 up with, and we'll notify you both in writing as soon as 

20 possible. In terms of exhibits, I know in the litigation and 

21 procedural order, I indicated on page 3 of 4 in paragraph e, 

22 as in egg, that you should bring at least three copies of any 

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1 documents you intend to offer for exhibits. And I just want 

2 to make one change to that. I will take the original and one 

3 copy, and then the court reporter will actually get the third 

4 copy, so that you know that I'll be taking two, and the court 

5 reporter will only be taking one. 

6 Other than that, is there is any thing else, Mr. 

7 Berman, that we need to discuss or take care of before we see 

s each other next year in 2014 on this case? 

9 MR. BERMAN: I just have a question. There's a 

10 prehearing, the order setting the procedures gives a deadline 

11 for motion in limine after the exhibits are submitted. Would 

12 that include objections to any exhibits? And, if so, is that 

13 something that might be resolved before the hearing, if 

14 anybody has any objections to exhibits? 

15 JUDGE SULLIVAN: That's an interesting question. 

16 It actually didn't anticipate that, but we can talk about 

17 that now. 

18 Mr. Ehrig, do you have any particular comment or 

19 response to that? 

20 MR. EHRIG: Yes, Your Honor. I'm just curious what 

21 exhibits, in particular, the FAA is going to object to? 

22 MR. BERMAN: Well, I don't anticipate -- from what 

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I've seen, I don't anticipate objecting to any exhibits. I'm 

just anticipating that, perhaps, my exhibits would be 

objected to by the respondent. 

JUDGE SULLIVAN: Okay. Well, why don' we do this? 

I haven't seen any of the discovery and I didn't expect to. 

I don't know what exhibits or objections you might have to 

such exhibits would encompass. And given the short time 

between January 21, 2014, and January 28, 2014, I'm not sure 

that I would have time to make rulings on objections since 

they're lengthy. And I don't want to cut the parties off 

from making all objections during the course of the trial. 

If there is obvious objections that you can see and 

you can put together in writing to meet that January 21, 2014 

deadline, that probably would be helpful, although I don't 

want to limit the parties to simply those objections, when in 

fact sometimes you have authenticity and custody issues that 

you need witnesses to address during trial. 

So, Mr. Berman, let me get back to you. I presume, 

and perhaps I presume in error, that Mr. Ehrig has received 

copies of any and all documents that you are potentially 

planning to submit as exhibits at this point. Would that be 

a fair presumption? 

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1 

2 that. 

MR. BERMAN: Actually, just this morning, I thought 

It just occurred to me this morning documents that I 

3 haven't submitted yet, haven't received until a couple days 

4 ago. And, for the most part, he has all my exhibits. It's 

5 pretty much what's in the original enforcement investigator 

6 file. There's one document. I could tell them now. It's an 

7 84-10 form that reflects the check rides that Mr. Kalish 

8 received, and I don't think that check ride is in dispute. 

9 But I will provide Mr. Ehrig with a copy of that. 

10 JUDGE SULLIVAN: Okay. Once that's provided, Mr. 

11 Ehrig, will you be able to address that informally if you 

12 have any concerns about the foundation or the authenticity, 

13 or the use of the document with Mr. Berman prior to the 

14 January 21, 2014 deadline that's in the current corrected 

15 order setting litigation dates and procedures? 

16 MR. EHRIG: Yes, Your Honor. That shouldn't be a 

17 problem. And it was at this time Doug anticipated to 

18 objecting to any of the exhibits that we've seen so far. 

19 can't comment on the ones that I haven't seen yet, Your 

20 Honor. 

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21 JUDGE SULLIVAN: Okay. Then why don't we leave it 

22 at this, instead? If the parties wish to file written 

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1 objections to any and all exhibits, they may do so on or 

2 before January 21, 2014, but I don't want to use that as a 

3 date of finality, because I think things come up at trial 

4 that no one can anticipate. But, if there are obvious 

5 disagreements that you know about, it would be helpful to 

6 alert me in advance. And then I will address those 

7 objections and any others that come to my attention when we 

8 convene in New York State on January 28, 2014. And I will 

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9 try for the Manhattan location first, and then I will try for 

10 the Central Islip location, as well. 

11 Well, let me change that. I will try for the 

12 Central Islip location first, since that's more convenient 

13 and there's no objection; and, if that doesn't work, I will 

14 go to the Manhattan location. So we'll go from Islip to 

15 Manhattan, if Islip's not available, and then I will get that 

16 notice out to you as soon as possible so that you can arrange 

17 for .your witnesses accordingly. 

18 With that, and let me just double-check one other 

19 thing. I should mention, and this again goes back to the 

20 June 5, 2013, corrected order, page 3, paragraph e, as in 

21 egg. I did not list that in this document, but I have been 

22 listing it since this document was filed in other orders. 

Diversified Reporting Services, Inc. 

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1 would like both of you to provide me when you give me your 

2 exhibits a cover sheet identifying the exhibits so that it's 

3 an index sheet. As an example, the index sheet would say, 

4 "Index sheet for respondent's exhibits." And then on the 

5 left-hand side, it would say "R-1." On the right-hand side 

6 it would say, "Copy of driver's license for Bob Jones." 

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MR. BERMAN: Okay. 

JUDGE SULLIVAN: Yeah, that kind of thing so that I 

9 have a quick reference to all of the exhibits as we move 

10 through the trial. And I can keep a more accurate record of 

11 what's been moved for admission, what's been admitted, what's 

12 been denied, and so forth, so that we have a good appellate 

13 record to work from, if needed. 

14 With that, Mr. Berman, is there anything else that 

15 we can address for your client today? 

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MR. BERMAN: No, Your Honor. 

JUDGE SULLIVAN: Okay. And, Mr. Ehrig, anything we 

18 can address for your client? 

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MR. EHRIG: No, 

JUDGE SULLIVAN: 

thank you, Your Honor. 

Okay. Then I look forward to 

21 seeing you all in about 2-1/2 months. 

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1 With that, we can go off the record, and I wish you 

2 all a good day. Thank you. 

3 [The prehearing telephone conference was concluded 

4 at 10:50 a.m.] 

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