U.S. DEPARTMENT OF TRANSPORTATION OFFICEOFHEARINGS 

# RECEIVED

WASHINGTON, D.C.

Inthe Matter of: Served: FAADocketNo. FDMS No. FAA-2011-1287 KELLY MCDOWELL FAA Case No. 2011CE700044 ----------------'Judge Richard C. Goodwin COMPLAINANT'S MOTIONFORDECISION 

## SEP- 52012 

## HEARING DOCKET

COMES NOWthe Complainant, the Federal Aviation Administration (FAA), by counsel for the Central Region, and, pursuantto Sections 13.209(a) and (f) and Section 13.218(£)(5) of the Rules ofPractice in FAA Civil Penalty Actions (14 C.P.R. Section 13.201 et. seq.), hereby
moves that the factual allegations contained in its Complaintbe deemed admitted and moves for
a decision. In supportthereof, the Complainant alleges and states: 1. Section 13.209(a) ofthe Rules ofPractice in FAA Civil Penalty Actions requires that
a written answer to the complaint, or a written motion, be filed no later than 30 days after service ofthe complaint on the Respondent. Section 13.209(f) states that: "Aperson's failure to file an answer without good cause shall be deemed an admission ofthe truth ofeach allegation in the complaint." (14 C.P.R.§ 13.209). 2. Inthe present case, the Complaint was sent to the Hearing Docket and a copy to the Respondent onNovember 21, 2011, as indicated onthe Certificate ofService for the Complaint. 3. The copy ofthe Complaint, which was sent by certified mailto the Respondent, was returned to the FAA Office ofRegional Counsel for the Central Region, marked "01/06/12 RETIJRN TO SENDER UNCLAIMED." (Exhibit 1: Affidavit ofDeborah Hervey).2
4. On March 28, 2012, the Complaint was remailed to the Respondent by both regular and certified mail, certified mail article number 7008 1300 0000 4603 5795 (Exhibit 1: Affidavit ofDeborahHervey). 5. The U.S. Postal Service certified mail "green card" receipt indicates that article number 7008 1300 0000 4603 5795, mailed to Kelly McDowell, 716 Hall Vale Drive, Fort Worth, Texas 76108, was delivered onMarch 30, 2012 (Exhibit 1: Affidavit ofDeborah Hervey; Exhibit 2: CertifiedMail Return Receipt). 6. The Complaintprovides as follows: Section 13.209(a) ofthe Ru1es ofPractice inFAA Civil Penalty Proceedings states, "Arespondent shall file a written answer to the complaint, or may file a written motionpursuantto Section 13.208(d) or Section 13.218(±)(1-4) instead of filing an answer, not later than 30 days after service ofthe complaint." Section 13.209(f) states, "Aperson's failure to file an answer without good cause shall be deemed an admission ofthe truth ofeach allegation contained in the complaint." 7. Notwithstanding that the Complaint providedthe Respondent the requirements of section 13.209(a) and the consequences for failing to comply as noted in section 13.209(f), the Respondent has never filed an Answer to the Complaint or a motion. 8. In addition, inthe Judge's Procedural Order served January 9, 2012, the Judge advised that, "the Respondent must file a written Answer or motion within thirty (30) days after service ofthe Complaint (14 C.F.R. § 13.209(a))," and "that failure to file an Answer without good cause is deemed an admission ofeach allegation in the Complaint(§13.209(f))". 9. As ofthe date ofthis Motion, August 28,2012, the Respondent has not filed an Answer or motion or submitted any response to the Complaint. 10. Therefore, the Complainantrespectfully requests that the truth ofthe allegations contained in the Administrator's Complaintbe deemed admitted by the Respondent. Inasmuch3

as the Respondent may be deemedto have admitted the truth ofthe allegations ofthe Complaint, there is no genuine issue ofmaterial fact and the Complainantrequests a decision in favor ofthe Complainant as a matter oflaw.

Dated this 28th day ofAugust, 2012. Respectfully submitted, A. Lester Haizlip Regional Counsel, Central Region By:
Mary EllenLoftus Directorate Counsel Federal Aviation Administration 901 Locust, Room 506, ACE-7 Kansas City, MO 64106 Phone: (816) 329-3764; Fax: 816-329-3771 ATTORNEY FOR COMPLAINANTAFFIDAVIT OF DEBORAH HERVEY STATE OF MISSOURI COUNTY OF JACKSON ) ) ss. 

### ) I, Deborah Hervey, being duly sworn under oath, state as follows: 1. I am employedbythe Federal Aviation Administration (FAA) as a Legal Assistant in the FAA Office ofthe Regional Counsel for the Central Region located at 901 Locust, Kansas City, Missouri. I have been employed inthat capacity since 1999. 2. Inthe course ofmy duties, onNovember 21, 2011, I mailed a copy ofthe FAA's Complaint in FAA Case No. 2011CE700044 by certified mail to Kelly McDowell, 716 Hall Vale Drive, Fort Worth, Texas 76108. 3. Thetracking number ofthe certified mail was 7008 1300 0000 4603 5290. 4. The certified mail letter was returned to the FAA marked "01/06/12 RETURN TO SENDER UNCLAIMED". 5. OnMarch 28,2012, I remailed a copy ofthe Complaint in FAA Case No. 2011CE700044 by both certified mail and regular mail to Kelly McDowell, 716 Hall Vale Drive, Fort Worth, Texas 76108. 6. The tracking number ofthe certified mail was 7008 1300 0000 4603 5795. 7. Subsequently, I received a "green card" certified mail return receipt for article number 7008 1300 0000 4603 5795. The green card showedthat the letter hadbeen delivered onMarch 30, 2012. 8. The letter that I had sentbyregular mail on March 28, 2012 was not returned to the FAA Office ofRegional Counsel. 9. This affidavit consists ofone (1) page. Itis true and correct to the best ofmy knowledge and recollection.

Subscribed and sworn to before me this 28th day ofAugust, 2012.

My Commission Expires: 

# J/;'-f 

# /r<f# ul~k-L NotaryPublic ( ALISA K. GAUSE Notary Public - Notary Seal State of Missouri Commissioned tor Jackson County My Commission Expires: February 14, 2014 Commission Number: 10437953 

## £X.1(!.811

## _LMarch 28, 2012 Remailed Regular, and Certified Mail the Complaint: Ms. Kelly McDowell 716 Hall Vale Drive Ft. Worth, TX 76108 Cert. No. 7008 1300 0000 4603 5795

D D D D D D rn r4 c(J D D ["'-

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# /i D. Hervey 

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Ms. Kelly McDowell 716 Hall Vale Drive Ft. Worth, TX 76108

SENDER:**COMPLI~TE** THIS SECTION • Complete Items 1, 2, and 3. Also complete item 4 if Restricted OeliveJY is desired. • Print your name and address on the reverse

so thjp.t we can return the card to you. 11 Attai!h this card tothe back ofthe mailpiece,

orol\ the front If space permits. )) · 1.**ArtidieA~<fo: R.err~**  -e( Ms. Kelly McDowell 716 Hall Vale Drive Ft. Worth, TX 76108 Postmark Hem ACE-7



# . . • 

## • •

C. Date of Dellvery 

### ,_7-o-\h D

..Is delivery address differentfrom Item 1? D Yes

If YES, enter delivery address below: D No

3. Se_rvle-9 Type

la'Certlfled Man q Express Mall 0**fleglster~** 0 RetUrn Receipt for Merchandise D Insured Mail 0 C.O.D. 4, Restricted Delvery? (Ex!m R>e) D Yes 2. Article Number (Transferfrom seJ. 7008 1300 DODD 46D3 5795 PS Form 381 

### i , February 2004 Domestic Return Receipt 10259&02-M-1540Kelly McDowell, FAA DocketNo.
___ _ FDMS No. FAA-2011-1287 FAA Case No. 2011CE700044
CERTIFICATE OF SERVICE I hereby certify that I have this date placed in the United States mail, certified, return receipt requested, a copy ofthe Complainant's Motion addressed to: The Honorable Richard C. Goodwin, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200New Jersey Avenue, S.E. Washington, DC 20590 Ms. Kelly McDowell 716 Hall Vale Drive Ft. Worth, TX 76108 In addition, I hereby certifY that I have this date placed inthe United States mail, certified, return receipt requested, the original and one copy, addressed to: Hearing Docket ATTN: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Room 2Wl000 Federal Aviation Administration 800 Independence Avenue, SW. Washington, DC 20591
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# k:le .·**f'•·~"'/U1) ~**  /\J .•.l.U!l
...··. ·Deborah Hervey )'

Legal Assistant () Datedthis 28th day ofAugust, 2012. 

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