In The Matter Of: 

SERVED: May 16,2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

) 

Docket No. FAA-2013-1085 

EXECUTIVE FLITEW A YS, INC. 

) 

) 

) Case No. 2012S0950377 

Respondent ) 

ORDER DENYING MOTION TO DEEM ALLEGATIONS 

ADMITTED ON THE GROUNDS OF UNTIMELINESS, ACCEPTING 

THE AMENDED ANSWER, AND GRANTING OTHER RELIEF 

On April 1, 2014, an Order Setting Rule 16 Litigation Scheduling Conference and 

Directing Rule 26(f) Planning and Submission was filed. 

On April 25, 2014, the Executive Fliteways, Inc. ("Respondent") filed a one-page letter 

("Response") responding to an FAA Motion to Deem Allegations Admitted. 

On April 28, 2014 the FAA filed a Motion to Deem the Allegations in the Complaint 

Admitted, to Enter an Order Assessing Civil Penalty for $15,400 or, Alternatively, Limit the 

Hearing to the Issue of Sanction ("Motion"). The FAA had served this Motion on the 

Respondent on April23, 2014. 

On April29, 2014, the Respondent's lay representative, Mr. Kenneth S. Gray, telephoned 

the Office of Hearings ("OH") attorney-staff, to ask some procedural questions about the scope 

of the hearing, and the scope of a Respondent's admissions or denials in answering the 

Complaint. The OH attorney-staff informed Mr. Gray that the OH could not :provide legal 

advice, but in civil proceedings in general, the appropriateness of the proposed civil penalty was 

a separate issue from whether the violations occurred. 

On April30, 2014, the Respondent filed a three-page letter ("Amended Answer"). The 

Respondent requested that the l~tter be considered an "amended written response to the 

Complaint that we received on March 11, 2014." The letter admitted each of the alleged 
violations contained in the Complaint. It provided provided mitigating factors for each violation, 

and requested a hearing on the issue of the proposed civil penalty. 

I. Brief Discussion and Analysis 

In essence, a failure to file a timely answer to a complaint can result in a default finding 

or judgment against the non-responding party pursuant to C.F.R. § 13.209(f). The FAA's 

primary Motion is a request for a default finding on the alleged violations, and a default 

judgment on the proposed civil penalty of$15,400, on the grounds that the Respondent failed to 

file a timely answer to the Complaint as required by 14 C.F.R. § 13.209(a). In the alternative, the 

FAA seeks a default finding on the allegations, with a hearing limited to the issue of the 

proposed fine. (Mot. 3.) In response, the Respondent requests that the Motion be denied because 

the Respondent's Answer was timely filed. (Resp. 1.) 

A. The Respondent Filed a Timely Answer to the Complaint. 

Pursuant to 14 C.F.R. § 13.209(a), a respondent is required to file a written answer to the 

complaint thirty (30) days after service ofthe complaint. Pursuant to 14 C.F.R. § 13.211(e), five 

(5) additional days are added to the 30 day time period whenever a complaint is served by mail. 

Pursuant to 14 C.F .R. § 13 .212(b ), the date of service is not included in the calculation of time. 

In this case, the FAA Complaint was served by mail upon the Respondent on March 11, 

2014. (Mot. 1; Compl. 5.) Although the FAA asserts that the Answer was required to be filed 

by April20, 2014 (Mot. 2.), this appears to be incorrect. 

Pursuant to 14 C.F.R. § 13.209(a) and 14 C.F.R. § 13.211(e), the Respondent's answer 

was required to be filed on or before April15, 2014 (i.e., 30 days+ 5 days). The record 

demonstrates that on March 19, 2014, eight days after service ofthe Complaint, the Respondent 

filed its Answer with the Hearing Docket Clerk. The Hearing Docket Clerk forwarded a copy of 

the Answer, dated March 19,2014 and stamped "RECEIVED MAR 26 2014, HEARING 

DOCKET," to the OH on March 27, 2014. (Ans. 1; Resp., Att. 1.) 

The FAA asserts that prior to filing its Motion, it contacted the Hearing Docket (date of 

contact unspecified), and the Hearing Docket told the FAA that no answer had been filed. This 

appears to have been incorrect information, upon which the FAA relied. 

Page 2 of4 
As part of its Response to the Motion, the Respondent provided a copy of the Certified 

Mail Return Receipt, which shows service on the Hearing Docket, with the certified receipt 

signed on March 26,2014. (Resp., Att. 2.) The Hearing Docket then posted the Respondent's 

Answer on its website March 31,2014. 

It is clear that the pro se Respondent did not file its Answer with either this court or the 

FAA. This was an error. For all future submissions, the Respondent must file its materials with 

both the court and the FAA. Nevertheless, for purposes of the FAA's Motion, the record shows 

that Respondent filed a timely Answer on March 19, 2014. As a result, the FAA's Motion to 

Deem Allegations Admitted on the grounds of default must be denied. 

B. The Respondent's April30, 2014 Amended Answer is Timely Filed 

As noted earlier herein, on April30, 2014, the Respondent filed an Amended Answer. A 

party may amend its pleadings by filing the amendment with the Judge and serving a copy of the 

amendment on all parties to the proceeding. 14 C.P.R.§ 13.214(a). A party may amend its 

pleading without the consent of the Judge when the amendment is filed not later than 15 days 

before the hearing 'date. 14 C.F .R. § 13 .214(b )( 1 ). 

In the instant proceeding, no hearing date has been set. Therefore, the Respondent's 

Amended Answer is timely filed. It also has an effect on the proceeding. 

C. The Hearing is Limited to the Issue of Civil Penalty. 

In its April30, 2014 Amended Answer, the Respondent admitted to the four (4) alleged 

Federal Aviation Regulations violations contained in the Complaint. (Am. Ans. 2) However, the 

Respondent continues to dispute the appropriateness of the proposed civil penalty. (!d. at 1.) As 

a result, the hearing should be limited to the appropriate civil penalty to be imposed for the 

admitted violations 

D. The Respondent must properly file and serve all documents. 

"A person filing an answer shall serve a copy of the answer on the agency attorney who 

filed the complaint." 14 C.P.R.§ 13.209(c). Additionally, "[a] person shall serve a copy of any 

document filed with the Hearing Docket on each party at the time of filing." 14 C.P.R. 

Page 3 of4 
§ 13.211(a). Parties to these proceedings are put on notice of this service requirement and 

further ordered to serve the assigned Judge with a copy of any document. (See Notice of 

Assignment ofProceeding, Mar. 19, 2014.) 

As noted earlier herein, the Respondent failed to file its original Answer with the Judge, 

and failed to serve a copy upon the FAA attorney. The Respondent also did not attach a 

certificate of service. See 14 C.F .R. § 13.211 (c). 

For all future submissions in this case, the Respondent must properly file its documents 

with the Judge, and attach a certificate of service showing that both the the FAA attorney and the 

Hearing Docket have received copies. 

II. Conclusion 

Based on the foregoing, and pursuant to 14 C.F.R. §§ 13.205(a)(8), and 13.211, and after 

reviewing all relevant caselaw, regulations, statutory authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The FAA's Motion to Deem the Allegations Admitted is denied. 

2. The Respondent's April30, 2014 Amended Answer is accepted as timely filed. 

2. The hearing in this proceeding shall be limited to the amount of civil penalty assessed for 

the violations. 

3. The May 22, 2014 deadline for the parties to submit their jointly written, proposed 

scheduling/discovery plan is reconfirmed. 

4. The Rule 16 Litigation Scheduling Conference set for Thursday, May 29,2014, at 

11:00 a.m. Eastern time is reconfirmed. The parties shall access the Conference by 

dialing 202-493-2343. 

Attachment: Service List 

Page 4 of4 
Docket No. FAA-2013-1085 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 0001 

Mr. Michael F. McKinley 

Complainant's Counsel 

ONE COPY 

Senior Attorney, Office ofthe Chief Counsel, AGC-300 

Federal Aviation Admi'nistration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

TEL: 202-267-7100 

FAX: 202-267-5106 

Mr. Kenneth S. Gray 

Respondent's Representative 

Director of Operations, Executive Fliteways, Inc. 

One Clark Drive 

Ronkonkoma, NY 11779 

TEL: 631-588-3480 ext. 128 

FAX: 631-588-5527 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Mr. John W. Grillo, President 

Executive Fliteways, Inc. 

Respondent 

One Clark Drive 

Ronkonkoma, NY 11779 

1 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.