04/10/2012 13:57 8472947498 FAA GLRC 

SERVED: April 10,2012 

U.S. DEPARTMENT OF TRANSPORTION 

OFFICE OF' :HEARINGS 

WASHINGTON, D.C. 

IN THE MATTER OF 

Midwest .Jet Charter, Inc. 

FAA DOCKET NO. unassigned 

(Civil Penalty Action) 

DMS No. unassigned 

Agency Case No. 2011-GL-19-0024 

Complainant's Motion to Deem Allegations Admitted and 

Motion for Judgment 0)1 the Pleadings or, 

in the Alternative. Motioll to Limit the Issues at Hearing to Sanction 

PAGE 02/14 

NOW COMES the Complainant, the Federal Aviation Adm.inistration (hereinafter 

"FAA" or "Agency", by cotmsel, and pursuant to the Rules of Practice set forth in 14 C.F.R. Part 

13, Subpart G, of the Federal Aviation Regulations, and for the reasons set forth below, moves 

the Judge for an order deeming the allegations set forth in the Agency's Complaint admitted. 

The Agency further moves for judgment on the pleadings or moves to limit the issues at hearing 

to sanction. In support of its motion, the Agency states as follows: 

FACTS 

1. On January 18, 2012, the Agency issued a Final Notice of Proposed Civil Penalty to 

Respondent for a violation of 14 C.P.R.§ 91.180(a). 

2. On February 1, 2012, the Agency received Respondent's notice of appeal dated January 

28, 2012. Exhibit A-1 

l 
04/10/2012 13:57 8472947498 FAA GLRC PAGE 03/14 

3. On february 16, 2012, the Agency served the Complaint in this matter on Respondent, as 

well as tbe Administrator. Exhibit A-2 

4. ln its February 16, 2012 transmittal letter, the Agency further advised Respondent that it 

"must file a written answer to the Complaint not later than thirty (30) days after service of 

the Complaint." Exhibit A-2 

5. Pursuant to 14 C.F.R. § 13.209(a), a respondent shall file a written auswer to the 

complaint not later than 30 days after service of the complaint. 

6. Moreover, "failure to file an answer without good cause shall be deemed an admission of 

the truth. of each allegation contained in the complaint." 14 C.F.R. § 13.209(f). 

7. Based on the foregoing, Respondent was required by 14 C.F.R. § 13.209 to file its answer 

with the Hearing Docket as well as the agency attorney no later than March 19, 2012. 

8. To date, the Respondent has failed to file an answer to the Agency's Complaint. 

ARGUMENT 

The Regulations at 14 C.F.R. § 13.209 provide that a respondent shall file an answer to 

the complaint within 30 days after service of the complaint. This language, clear on its face, 

places an affirmative duty upon the Respondent to ftle an answer in a timely manner. The 

necessity to file a timely answer is not an option for a respondent but a duty imposed by 

regulation. Furthermore, there is no discretion provided by regu.lations for the Respondent to file 

an answer beyond the stated deadline. This section also provides that failure to file an answer 

"without good chase shall be deemed an adm.ission of the truth of each allegation contained in 

the complaint." Again, the regulations provide for little to no leniency in this matter. 

Respondent has yet to file an answer to the Agency's Complainant, clearly disregarding 

its responsibility under 14 C.F.R. § 13.209(a). Additionally, Respondent has not filed any 

2 
04/10/2012 13:57 8472947498 FAA GLRC PAGE 04/14 

request for an extension of time or demonstrated that it had good cause for its failure to file a 

timely answer. The Agency timely served its complaint on the Respondent on february 16, 

2012, by certified m.ail. Agency Counsel evel) outlined the requirement for Respondent to 

provide a timely m1swer when she served Respondent with the complaint on February 16, 2012. 

RespoDdent's lack of compliance with the established regulations makes the Agency a hostage of 

the Respondent's whim in that the Agency is unable to develop a trial strategy or commence any 

pretrial preparation because it does not know what proof it must put on or refute without an 

answer to the allegations on file. 

Under the above circumstances, and in light of the Administrator's precedent, See, e.g., 

In the Matter of Donald M Missirlian. FAA Order No. 97"19 at 1 (May 22, ) 997), In the Matter 

o_f Barnhill, FAA Order No. 92-32 at 6, (May 5, 1992), In The Matter of Michael Kilduffi, 2011 

WL 1483974 (April 18, 2011 ), which found no error with a law judge granting a motion on the 

pleadings when an answer to a complaint is untimely filed (coupled with the absence of good 

cause for the failure of a Respondent to timely file an answer), the allegations in the present 

complaint should be deemed admitted. 

Additionally, under FAA Order 2150.3A, ColJl.pliance and Enforcement Program, 

Appendix 4, Sanction Guidance Table, the Agency is seeking a six thousand six hundred dollar 

($6,600) civil penalty, which is within the range of allowable sanction for the violations alleged. 

By Respondent's fai.lure to timely file an answer, the Respondent has provided no mitigating 

circumstances such that any reduction ofthe proposed sanction may be found. 

3 
04/10/2012 13:57 8472947498 FAA GLRC PAGE 05/14 

WHEREFORE, the Administrator hereby respectfully requests 

(a) the issuance of an Order granting the Administrator's motion deeming the admission 

by the Respondent of the t\Utb of the allegations contained in the complaint; 

(b) judgment on the pleadings be entered or, in the alternative, the Administrator 

requests that any hearing in this matter be limited to the issue of sanction only. 

Respectfully submitted, 

~~ ibo/:MJ'2 ~B~n~.a~n~a=~~a~r~ti~n~o~~~~~-----D-a~te---

Complainant's Counsel 

Great Lakes Region, AGL-7M 

Federal Aviation Administration 

2300 E. Devon A venue 

Des Plaines, IL 60018 

Phone: 847-294-7313 

FAX: 847-294-7498 

4 
04/10/2012 13:57 8472947498 FAA GLRC PAGE 05/14 

CERTIFICATE OF SERVICE 

I hereby certify that I have, this date, served the foregoing Motion by mailing copies 

thereof, as follows 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2WI 000 

FAX: 202-493-51.41. 

Tim Lodes 

Director of Human Resources 

Midwest Jet Charter, Inc. 

412 Airport Road 

Mattoon, niinois 61938 

Dated this 1 O'h day of April, 2012 

5 

Regular Mail & Facsimile 

Regular Mail & Certified 
04/10/2012 13:57 8472947498 

January, 28 2012 

Hearing Docket 

Federal Aviation Administt3.tion 

800 Independence Avenue; s:w:, 

Washington, DC 20591 

, Inc. 

FAA GLRC 

412 Airport Rd. 

Mattoon, IL 61938 

Phone (217) 234-7109 

Mobilo (217) 254-225S 

Fax (217) 234-7109 

I 

Attention: Hearing Docket Ck<k, ; . .GC-430, Wilbur Wright Buil,g-Suite 2Wl.OOO 

De:u: Hc.~ting Doe:ket. Clerk, ! 

I 

PAGE 07/14 

I am i.n receipt of a letter dated Janll.ary 18111 2012 from Attorney knana Martino, .r::cfcrcndu.g ~ .final notice of 

proposed civil penalty with a reference of AGL-7M 2011-GL-19Joo24. The letter proposes a civil penalty of 

$6<100 ~or viohtting Section 91.180(-a). I Rm reque~ting a hca.cing ot tbo5C events on J~nua:cy 20, 201. L 

Sinc:erdy:. 

Tim JAde~ 

Director of Hllman Resources 

l\fidwest]er C'...harr.er Inc. 

Cc: Br.b.na Ma:r:tino 

EXHIBIT 

4-\ 

D>~· tit 

V /) I 
04/10/2012 13:57 

u.s. Department 

of Transportation 

Federal AvlaHon 

Administration 

8472947498 

February 16, 2012 

In Reply 

Refer to: AGL-7M 

FAA GLRC 

®COPY 

Great Lakes Region 

2300 E. Devon Avenue 

Des Plalnes, ll 80018 

PAGE 08/14 

Area Code 847/294-7313 

CERTIFIED 

Tim Lodes 

Director of Human Resources 

Midwest Jet Charter Inc. 

412 Airport Road 

Mattoon, Illinois 61938 

Re: In the Matter of Mictkest Jet 

FAA Case No.: 2011-GL-lS-0024 I 

Charter Inc. 

Enclosed herewith please find one copy eadh of the transmittal letter, 

the request for hearing, and the complain~ in the above-referenced 

proceeding. · ! 

The FAA has requested that the hearing injthis matter be held in 

Springfield or Chicago, Illinois, and exp ,cts that the hearing will 

last one day. ! 

You must file a written answer to the Com~laint not ·later tha.n thirty 

(30) days after service of the Complaint. ! Service is. defined in 

section 13.211 of the Rules of Practice iJ FAA Civil Penalty Actions 

(14 c.F.R. Section 13.211), a copy of whidh wa.s sent to you with the 

Notice of Proposed Civil Penalty. The ansJer must be dated and signed 

in accordance with Section 13.209 of the ~ules of Practice (14 C.F.R. 

Section 13.209). I 

Enclosures 

Jeffrey AI. Klang 

Regional Counsel 

Briana Maktino 

Attorney 1 

EXHIBIT 

A-2-
04/10/2012 13:57 

u.s. Deportment 

of lransportotlon 

Federal Aviation 

Administration 

8472947498 

February 16, 2012 

In Reply 

Refer to: 

CERTIFIED 

Hearing Docket 

AGL-7M 

Federal Aviqtion Administration 

BOO Independence Avenue, s. W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk 

AGC-430, Wilber Wright Building 

Suite 2W1000 

FAA GLRC 

Great lakes Region 

2300 E. DevonA venue 

Dea P!a.IMs, IL 60018 

Area Code 847/294-7313 

Re: Midwest Jet Charter Inc. 

FAA Case No.: 2011-GL-19-0024 

PAGE 09/14 

Enclosed herewith please find a copy of a request for hearing and the 

original and one copy of the Complaint in the above-referenced 

proceeding. 

The FAA requests that the hearing in this matter be held in 

Springfield or Chicago, Illinois, and expects that the hearing will 

last one day. 

Please address all communications for the FAA to the undersigned at: 

Enclosures: 

Federal Aviation Administration 

Regional Counsel (AGL-7) 

2300 East Devon Avenue 

Des Plaines, IL 60018 

Sincerely, 

'~~~~ 

t Briana Martino 

Attorn"'y 

Requ~st for aring 

Complaint 

cc: Respondent (w/copy of Complaint) 
04/10/2012 13:57 8472947498 FAA GLRC 

CERTIFICATE OF SERVICE 

I hereby certify that I have, this date, served the foregoing 

Complaint by mailing the :t:ollowing copies, Certified Mail (Return 

Receipt Requested) : 

Original and 1 Copy: 

One Copy: 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, s. 'il. 

Washington, DC 20591 

Attn: Hearing Docket Clerk 

AGC~430, Wilber Wright Building 

Suite 2W1000 

Tim Lodes 

Directo~: of Human Resources 

Midwest Jet Cha~:te~: Inc. 

412 Airport Road 

Mattoon, Illinois 61938 

Dated this 16th day of February, 2012. 

?i~~ci4 FAA, Great· Lakes Region 

PAGE 10/14 
04/10/2012 13:57 8472947498 FAA GLRC 

U. S. DEPARTMENT OF TRANSI?Ol'.TATION 

OFFICE OF HEARINGS 

~HINGTON, D.C. 

IN THE MATTER OF 

Midwest Jet Charter, Inc. 

Fl'\_A DOCKET NO. (not assigned) 

(Civil Penalty Action) 

DMS NO. (not assigned) 

FAA CASE NO. 2011-GL-19-0024 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, hereby 

PAGE 11/14 

hles its Complaint, pursuant to Rule 208 of the Rules of Practice (14 

C.F.R. 13.208), and states as follows: 

I 

1. On January 18, 2012, Respondent Midwest Jet Charter Inc. 

was advised through a Final Notice of Proposed Civil Penalty that the 

FAA proposed to assess a civil penalty in the amount of $6,600. On 

vanuary 30, 2012, Respondent submitted a written request for a 

hearing. 

2. At all relevant times herein, Midwest Jet Charter, Inc. 

(Midwest) was the holder of Air Carrier Certificate Number HMOA452K 

and authorized to conduct common carriage operations. 

3. Midwest is tne registered owner and operator of civil 

aircraft N350RK, a Beech Model B300. 
04/10/2012 13:57 8472947498 FAA GLRC PAGE 12/14 

4. In its air carrier operation Midwest employed the services 

of a commercial pilot, David D. Cole (Cole), and operated a N350RK. 

5. At all times relevant hereto, Cole acted as pilot in 

command and operated N350RK as a pilot of, and agent of, Midwest. 

6. On January 20, 2011, Cole operated N350RK on a flight under 

'In.strument Flight Rules (IE'R) from Henderson Executive Airport (Y,HND) 

in Nevada to Des Moines International Airport (KDSM) in Iowa. 

7. Prior to the January 20, 2011 flight, Cole filed a flight 

plan indicating the flight was authorized for Reduced Vertical 

Separation Minimum (RVSM) operations. 

8. The flight plan filed for N350RK from KHND to KDSM on 

January 20, 2011 included a planned cruising altitude of Flight Level 

(FL) 290. 

9. During the flight, N350RK climbed to a cruise altitude of 

FL 290 and entered RVSM designated airspace controlled by Los Angeles 

and Denver Centers. 

10. At all times relevant hereto, N350RK did not comply with 

the minimum standards in A)?pendix G of Part 91, to operate in RVSM 

airspace. 

11. At all times relevant hereto, Midwest did not comply with 

Appendix G of Part 91 and was not authorized by the Administrator ·to 

conduct operations in RVSM airspace. 
04/10/2012 13:57 8472947498 FAA GLRC PAGE 13/14 

rr 

By reason of the foregoing facts and circumstances, Respondent 

violated Section(s) 91.180(a) of the Federal Aviation Regulations. 

1. Pursuant to Title 49 of the United States Code, Section 

46301 (49 U.S.C. §46301), Respondent is subject to a civil penalty not 

to exceed $11,000 for each violation alleged. 

2. Onder the facts and circumstances of this case, a civil 

penalty of $6,600 is appropriate. 

WHEREFORE, the Agency, by counsel, respectfully requests that the 

Administrative Law Judge enter an Order that Respondent be assessed a 

civil penalty in the amount of $6,600. 

Respectfully submitted this 16th day of February, 2012. 

Sriana Martino· 

Attorney 

Federal Aviation Administration 

Great Lakes Region, AGL-7 

2300 East Oevon Avenue 

Des Plaines, IL 60018 

(847) 294-7313 

FAX: (847) 294-7498 

AGL-7M 
04/10/2012 13:57 8472947498 FAA GLRC 

I hereby certify that the foregoing Complaint has been mailed this 

date by Certified Mail, Return Receipt Requested, to: 

Original and One Copy: 

One Copy: 

Hearing Docket 

Federal Aviation Administration 

800 Independence Avenue, s. W. 

Washington, DC 20591 

Attn: Hearing Pocket Clerk 

AGC-430, Wilber Wright Building 

Suite 2W1000 

Tim Lodes 

Director of Human Resources 

Midwest Jet Charter Inc. 

412 Airport Read 

Mattoon, Xllinois 61938 

Dated this 16th day of February, 2012. 

FAA Great Lakes 

PAGE 14/14