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UNITED STATES DEPARTMENT OF TRANSPORTATION 

' OFFICE OF HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

DARBY AVIATION 

FAA Docket No. CP08SO0026 

FAA Case No. 2008SO090020 

DMSNO.FAA-2008-1192 

BECBIVEO 

JUfJ 10 2010 

HEARING DOCKET 

Administrative Law Judge Isaac D. Benkin 

AGENCY'S OPPOSITION TO RESPONDENT'S MOTION 

COMES NOW, the Agency and, by and through its undersigned counsel, opposes 

the Motion to allow Respondent to file a brief, said Motion served June 4,2010, as 

follows: 

In his bench order on March 16, 2010, and again in his written Order served 

March 18, 2010, the Administrative Law Judge set the time for submitting initial posthearing briefs on May 25, 2010. Because the transcript was delayed the Judge, in an 

Order served April 21,2010, extended the time for filing transcript corrections, but he did 

not extend the time for filing the initial post-hearing briefs. In fact, in a telephone 

conference call set up to determine the deadline for the transcript corrections, the Judge 

specifically asked the parties if the post-hearing brief deadline needed to be changed. 

Both parties agreed that the May 25,2010, deadline would remain effective. In an e-mail 

dated April 20,2010, the Judge specifically wrote, "If this delay causes a need to extend 

the briefing deadlines, please let me know ASAP." Respondent's Counsel acknowledged 
the Judge's e-mail on April 20,2010, but did not oppose the deadline of May 25,2010, 

set for the submission of post-hearing briefs. Respondent's Counsel never communicated 

to the Agency a need to extend the post-hearing brief deadline until May 20,2010, when 

David B. Anderson copied the Agency in an e-mail to Judge Benkin asking if he could 

have some additional time to file the brief' The Agency received no further 

communications firom either the Judge or the Respondent's Counsel and, thereafter, the 

Agency filed its timely post-hearing brief 

The Agency filed its post-hearing brief on the due date of May 25, 2010. The 

Respondent's Counsel did not file a post-hearing brief Rather, she filed a Motion to 

Amend Post Trial Briefing Schedule on June 3,2010.^ The Motion incorrectly states in 

paragraph 4 that the Agency's brief contains no references to the hearing transcript. The 

Agency's brief is replete with references to the transcript. 

Contrary to the Judge's verbal and written orders the Respondent's Counsel states 

that it does not need to file a post-hearing brief. Counsel argues that because the Agency 

has the burden of proof she should be allowed to file a reply brief to the Agency's closing 

brief Such an argument is dilatory and propounded solely to justify the Respondent's 

failure to files its brief as ordered by the Judge. The Respondent should not be allowed to 

create the rules at this point - the Judge has established the hearing procedures with good 

reason and those procedures should govern the conduct of the hearing practices. 

Respondent's Counsel has offered no explanation of why she could not file a 

timely post-hearing brief. Rather, she relies upon the argument that the procedures should 

' Respondent's Motion states that the Court would not grant an extension because Agency Counsel did not 

consent to an extension. Agency Counsel was never asked to agree to an extension. 

^ The certificate of service states that the e-mail and fax copies were served June 3,2010, and the certified 

mail copies were served June 4, 2010. 

page 2 of 4 pages 
be changed so as to allow her to file a reply brief She did not suggest in her Motion that 

the late receipt of the transcript prevented her from filing a post-hearing brief ^ Without 

good cause offered the Respondent should not be allowed additional time to files its brief 

In the matter of Peter Houtenbos, FAA Order 2002-11, April 17, 2002. 

The Agency requests that the Court strike any brief that the Respondent may 

submit in this matter. The Respondent has failed to follow the Judge's order in this 

matter, has not offered any good cause why it failed to file a post-hearing brief, and 

should not be allowed an opportunity to file a brief at this point. 

Respectfully submitted this 7* day of June, 2010. 

<^ 

RAYMOND VEATCH 

Attorney 

Federal Aviation Administration 

Office of the Regional Counsel 

P.O. Box 20636 

Atlanta, GA 30320 

telephone (202) 267-9676 

facsimile (404) 305-5223 

^ Notwithstanding, such an argument would be without merit - the Agency had the same amount of time as 

the Respondent to file a post-hearing brief after receiving the transcript and the Agency's brief was timely. 

page 3 of 4 pages 
1 

CERTIFICATE OF SERVICE 

I hereby certify that a copy of this Agency opposition has been mailed this date by email, regular mail, and internal distribution (as indicated below): 

The Honorable Isaac D. Benkin 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room E12-320 

Washington, D.C. 20590 

e-mail: david.benkin@dot.gov 

Deanna L. Weidner, Esq. 

David Anderson Esq. 

Anderson & Associates, LLC 

595 N. 20* Street, Suite 1450 

Birmingham, AL 35203 

e-mail: DLWeidner@davidbandersonlaw.com, DBAnderson@davidbandersonlaw.com 

Hearing Docket (internal distribution only) 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright^uildin^A Room 2014 

^^RAYMOND VEATCH 

Attorney 

date 

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