iSERVED: JANUARY 9, 2012 

Orl^ARTMENTOr 

iRANCPORlATiON 

U.S. DEPARTMENT OF TRANSPORTATION • '•: ;k;F"! QI'LRATIONS 

OFFICE OF HEARINGS 

WASHINGTON, DC /"i? j^Ni G ^^ 1- '-^0 

[N THE MATTER OF 

KELLY MCDOWELL 

FAA DOCKET NO. [TO BE ASSIGNED] 

(Civil Penalty Action) 

FDMSNO. FAA-20II - 1287 

PROCEDLIRAL ORDER 

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

Procedural Schedule set forth hereinbelow'. The Rules of Practice for this proceeding 

are set forth in 14 C.F.R. Part 13, Subpart G, of the Federal Aviation Regulations^. 

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.F.R. ij 13.209fa)). that a 

general denial is deemed a failure to t1le 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(0); 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, 14CFR§ 13.209 (e) states; 

A person filing an answer shall admit, deny, or state that the person is without 

sufficient knowledge or infomiation 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 

' Materials filed in the FAA Hearing Docket (except for materials filed in security cases) are also available 

for viewing at hnp://www.reiiu/iJiioiis.sov-

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

well as other materials relating to civil penaltj' cases, arc available on the internet at: 

liftp:/Ai^\'wJcu-i.gov/aboiit/oJJlcL'_org/hL'aJc/uaritTs_uffict\s/agc/po/_adJudi see 

also; h{}p://ecfr.gpoaccess.gov/cgi/l/lex(/lexi-idx?c^ecfrAtpl^/ecfrhrowse/Tillel4/l4lab_i)2.(pl. In 

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

are available through LEXIS (TRANS library) and WestLaw 9FTRAN-FAA database). For additional 

information, see the Web site. 

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

without a finding of violation (140.F.R. ^13.16 (n) (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, or its representative on an ex 

parte basis. If a party has a non-substantive matter to discuss, they should contact the 

judge's attorney-advisor, Mr. Ira Lcibowitzat (202) 366-2139 (lra.Leibowitz(g',dot.'zov). 

Administrative matters may be addressed to the judge's. Legal Assistant, Pat Matthews 

[202-366-5121] (Patrieia.Matthews(gjdot.^dv). 

WHEREFORE, the parties be and are hereby ORDEREID to adhere to the 

following procedural schedule: 

1. Venue shall be Kansas City, MO.: 

2. On or before April 16, 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 camiot 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 April 16, 

2012% subject to the availability of courtroom facilities, fhe specific date and 

time for the hearing will be forthcoming in a separate Order. 

4. The parties will have the opportunity to file Post-Hearing briefs and arguments 

ptirsuant to a schedule to be detennined 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. 

' See Linda Joyce Goodman. FAA Docket No. CP89WP0061, Order dated May 30. 1989. 

•* "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 Dupuv. et al, 

(856F. 2d652, 26Fed. R. Evid. Serv. 1225, 1988. See also Coakley & Williams Construction, 

Incorporated v Shuctural Concrete Equipment, Incorporated, 973 F.2d 349. 1992; 2 McCorhiick 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 MaUer of 

Africa Air Corporation; 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." (Id.) 

^ 14 C.F.R. § 13.221 slates: "The administrative law judge shall give each party at least 60 days notice of 

the date, time and location of the hearing." 
5. Settled cases will not be removed from the hearing docket until the proper written 

pleading{s). consistent with the applicable rules,'' is received by the presiding 

judge.^ 

6. The parties are advised that submissions sent to the street address of the U.S. 

Department of Transportation, Office of Hearings, 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. Additiotially. submissions may be 

"irradiated", which affects the quality of submissions. The parties are 

encouraged, but not required, to file.submissions by private delivery service, 

facsimile, or email. The certificate of service shall reficct the t'nanner of service. 

.>.^iiaiu ^ . wJodwin 

U.S. Administrative Law Judge 

Attacliment - Service List 

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 administrative law judge shall dismiss the proceedings under this subpart with prejudice. 

^ See: In the Matter of Lewis Drake & Associates. FAA Docket No. CP03SO0045, DMS. No. FAA-2003-

163'79. "'Order Terminal'mg Proceeding", served February 26. 2005: citing Kerry James Eldridge. FAA 

Docket CP89GL0458. "Order Canceling Hearing and Tenninating Proceeding", served January 16, 1991, 

al I: In The Matter of Robert Harris FAA Docket No. CP03EA0001. DMS No. FAA-2002-14236., Orders 

dated October 18, 2004 and October 27. 2004. USAIR. Inc.. FAA Docket CP9QNE0359. Trans World 

Airlines. Inc., FAA Dockets CP9QGL0085, CP90CE0110, CP90CE01 14. CP90CE0134, Order of 

Administrative Law Jtidge Burton S. Kolko, served April 8, 1992, p. 2. See "Order Dismissing 

Complainant's Appeal". In The Matter of Robert Hanis. FAA Docket No. CP03EA000L DMS No. FAA2005-14. Augusl 15.2005. 
FDMS No. FAA-2011-1287 

(Civil Penalty Action) 

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' 

ONE COPY 

Kelly McDowell, Respondent 

716 Hall Vate Drive 

Ft. Worth, TX 76108 

Mary Ellen Loftus, Complainants Counsel 

Attorney, Office of the Regional Counsel 

Central Region, ACE-7 

Federal Aviation Administration 

Room 506, DOT Building 

91 Locust 

Kansas City, MO 64106-2641 

TEL: 816-329-3764 

FAX: 816-329-3771 

The Honorable Richard C. Goodwin, Adminisiralive LOH'Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

TEL; 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

' Service was by U.S. Mail. For service in person or by expedited courier, use tlie following address: Federal 

Aviation Adiniiiislration, 600 Independence Avenue, S.W., Wilbur Wright Building—Suite 2W1000, Wasliington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-4.^0.