In The Matter Of: CLIFFORD PRESS Respondent 

### SERVED: DECEMBER 14, 2012 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC ) ) ) ) ) DocketNo. FAA-2011-1006 Case No. 2011EA150045



### ORDERSETTING VENUE IN ISLIP, NEW YORK

On September 8, 2011, the Federal Aviation Administration (FAA) filed a Complaint charging the Respondent, Mr. Clifford Press, with violating three Federal Aviation Regulations (FAR), i.e., 14 C.F.R. 

### §§ 121.317(f), 121.317(k), and 121.580. As part ofthis Complaint filing, the FAA requested the hearing venue be set in the New York, New York area. On October 16, 2011, the Respondent, through counsel, filed 

### "Mr. Press' Answer to FAA Complaint", in which the Respondent requested the hearing be held in Washington, DC; OnFebruary 29, 2012, the parties appeared bytelephone for a Rule 16 Litigation Scheduling Conference. At that time, the parties discussed their calendar availability, hearing dates, and other litigation procedural matters. The issue ofvenue was not addressed inthe parties' Rule 26(f) Plan, nor discussed during the February 29, 2012 Rule 16 Conference. Immediately after the Rule 16 Conference, the Office ofHearings (OH) attorney stafftelephoned boththe FAA andthe Respondent to ask ifthe parties haddiscussed the issue ofvenue. The OH staffnoted that ifvenue was set in the New York area, there was a possibility the matter couldbe heard in the new Islip courthouse. Both the FAA and the Respondent stated that Islip, New York might be acceptable, but thatthey wished to further discuss the issue, and make a recommendation after discovery was finished. On March 1, 2012, an Order Setting Litigation Dates and Procedures was filed. Among otherthings, this Order adopted and set a deadline ofNovember 30, 2012 (which was also the deadline for completing all supplemental discovery) for the parties to provide written notification ofthe place ofvenue for the hearing, or, ifthe parties remained in dispute, to contactthe OH and schedule a telephone conference onthe matter. OnNovember 30, 2012, the Office ofHearings received a one page fax from the FAA, requesting that the hearing take place in New York City or Islip, NY. This document indicated that the Respondent's counsel was cc'd, but itcontained no certificate ofservice and did not indicate that it was filed with the FAA's Hearing Docket.On December 6, 2012, Office ofHearings attorney stafftelephoned the FAA, and requested that the November 30, 2012 faxed document be filed with the FAA's Hearing Docket. As oftoday's date, December 14,2012,the Respondent has submitted no further information orrecommendations regarding the issue ofvenue.


### 1. Legal Standardfor SettingVenue The Rules ofPractice, 14 C.F.R. part 13, subpart G, govern the setting ofvenue in FAA civil penalty proceedings. The authority to set the location ofthe hearing is vested solely inthe administrative lawjudge, after considering any suggestions bythe parties. 

### See 14 C.F.R. 

### § 13.22l(b);

### See also, 55 Fed. Reg. 27548,27561 (discussion offinal rule July 3, 1990, "Location ofHearing"). In setting venue, the administrative lawjudge is notruling for or against a party, but rather utilizingjudicial discretion in considering the factors contained in Section 13.221(b), the Administrative Procedure Act (APA), and any other factors deemed relevant in each individual case. Section 554(b) ofthe APA also provides inpart: "[i]n fixing the time and place for hearings, due regard shall be had for the convenience and necessity ofthe parties." 5 U.S.C. 

### § 554(b) (2006). In addition, any other factors deemed relevant bythe administrative lawjudgemay also be considered, inorder to address the needs ofthe parties, the needs ofthe witnesses involved, and to avoid hardship. 

### See 54 Fed. Reg. 11914, 11916 (disposition ofcomments Mar. 22, 1989, "Location ofHearings"). 

### See generally., Baicker-McKee et al., 

### supra,§§ 2.14 and 2.15 (private factors in considering venue may include the following: 1) ease ofaccess to evidence; (2)the cost for witnesses to attend trial; (3) the availability ofcompulsory process; and (4) other factors that might shorten trial or make it less expensive); 

### See also, 55 Fed. Reg. 27548, 27561 (discussion offinal rule July 3, 1990) ("Ifthe place where the incident occurred is a relevant factor

...either party is free to raise that issue

..."). Although not required bythe Rules ofPractice, the parties "are encouraged to explain or support their suggested venue location so that the administrative lawjudge is aware ofthese considerations at the time ofthe [venue] determination." 55 Fed. Reg. 27548, 27561 (discussion offinal rule July 3, 1990, "Location ofHearing").


### 2. Facts Considered in SettingVenue It is undisputed that the alleged violations took place on or about March 27, 2011, while the Respondent was a passenger aboard United Airlines Flight 341. (Compl. 1,**~II-I;** Answer 1,**~** 1.) Flight 341 departed from Denver, CO and terminated at LaGuardia Airport in Flushing, NY. (!d.)

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### Itis undisputed thatthe FAA is represented by counsel from the Office ofthe Regional Counsel, Eastern Region, located inJamaica, NY. (Notice ofAssignment ofProceeding 2). It is also undisputed that the Respondent's counsel is located in Frederick, MD. (!d.) While less clear, it appears undisputed that the Respondent currentlyresides inNew York,NY. 1 It is also undisputed that Respondent's counsel is located in Frederick, MD. Based on the location ofthe apparent location ofthe Respondent (NewYork, NY), the location ofthe FAA's counsel (Jamaica, NY), and the fact thatthe flight on which the alleged violations occurred terminated at LaGuardiaAirport inFlushing, NY, themajority offacts support holding the Hearing in the New York, New York area. Having reviewed the case file, all pleadings and motions, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised;


### IT IS HEREBY ORDERED: 1. Pursuantto 5 U.S.C. 

### § 554(b) and 14 C.P.R.§ 13.221(b), venue inthis matteris set in Islip, New York. 2. The parties will be notified at a later date as tothe exact location ofthe hearing in Islip, New York.

Attachment: Service List

1 The Respondent's Request for Hearing provides an address of 1120 Fifth Ave. but gives no city, state, or zip code. It does provide a phone number with a 212 area code; the area code for New York, New York. Page 3 of4

## ..

SERVICE LIST FDMS NO. FAA-2011-1006 (Civil Penalty Action)

ORIGINAL 

### & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W10002

Ms. Judith 

### L. Vaughan, Esq. 

### Complainant's Counsel Office ofthe Regional Counsel, AEA-7 Eastern Region Federal Aviation Administration 1Aviation Plaza, Room 561 Jamaica, NY 11434 TEL: 718-553-3255 FAJ(: 718-995-5699 Ms. Kathleen 

### A. Yodice, Esq. 

### Respondent's Counsel Yodice Associates 411 Aviation Way, Suite 245 Frederick MD 21701 TEL: 301-695-2300 FAJ(: 301-695-2151 Judge J.E. Sullivan 

### U.S. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2132 FAX: 202-366-7536 ONE COPY

Mr. Clifford Press 

### Respondent 1120 Fifth Avenue New YorkNY 10128 TEL: 212-427-2323

2 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430; Page 4 of4