04/10/2012 13:57 8472947498 FAA GLRC



### SERVED: April 10,2012 

### U.S. DEPARTMENT OFTRANSPORTION OFFICE OF' :HEARINGS

WASHINGTON, D.C. 

### IN THE MATTER OF Midwest.Jet Charter, Inc. FAA

### DOCKETNO. unassigned 

### (Civil PenaltyAction) 

### DMS No. unassigned 

### Agency Case No. 2011-GL-19-0024 Complainant's Motion to Deem Allegations Admitted and Motion forJudgment 0)1 

### thePleadings or, in theAlternative.Motioll to Limitthe

### Issues atHearingto Sanction PAGE 02/14



### NOW COMES the Complainant, the Federal Aviation Adm.inistration (hereinafter "FAA" or "Agency",by cotmsel, andpursuantto the Rules ofPractice setforth in 14 C.F.R. Part 13, Subpart G, ofthe 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 forjudgment on the pleadings ormoves to limit the issues at hearing to sanction. In support ofitsmotion, the Agency states as follows: FACTS 1. 

### On January 18, 2012, the Agency issued a Final Notice of Proposed Civil Penalty to Respondentfor aviolation of14 C.P.R.§ 91.180(a). 2. On February 1, 2012, the Agency received Respondent's notice ofappeal dated January 28, 2012. Exhibit

### A-1

l04/10/2012 13:57 8472947498 

### FAA GLRC PAGE 03/14



### 3. On february 16, 2012, the Agency servedthe Complaintinthis matteronRespondent, as well as tbe Administrator. Exhibit

### A-2 4. ln

### its February 16, 2012 transmittal letter, the Agency further advised Respondent that it "mustfile awritten answer to the Complaintnotlaterthanthirty (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 complaintnotlaterthan 30 days after service ofthe complaint. 6. Moreover, "failureto file an answer without good cause shall be deemed an admission of thetruth. ofeachallegationcontainedin the complaint." 14 C.F.R. 

### § 13.209(f). 7. Based onthe foregoing, Respondentwasrequired by 14C.F.R. 

### § 13.209 to file its answer with theHearing Docketas well as the agency attorney no laterthan March 19, 2012. 8. To date, theRespondenthas failed to file an answerto 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 ofthe 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 discretionprovidedbyregu.lations for theRespondentto 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 ofthe truth ofeach allegation contained in the complaint." Again, the regulationsprovide 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

204/10/2012 13:57 8472947498 FAA GLRC PAGE 04/14



### request for an extension oftime 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 ofcompliance with the established regulations makes the Agency a hostage of the Respondent's whim inthat 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 answerto the allegations onfile. Under the above circumstances, and in light ofthe Administrator'sprecedent, See, e.g., In the Matter of DonaldM Missirlian. 

### FAA OrderNo. 97"19 at 1 (May 22, )997), In theMatter 

### o_f Barnhill, 

### FAA OrderNo. 92-32 at 6, (May 5, 1992),In The Matter of MichaelKilduffi, 

### 2011 WL 1483974 (April 18, 2011 ), which found no errorwith a lawjudge granting amotiononthe pleadings whenan answerto acomplaintis untimely filed (coupled withthe absence ofgood
cause for the failure ofa Respondent to timely file an answer), the allegations in thepresent complaint shouldbedeemed 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 ofallowable sanction for the violations alleged. By Respondent's fai.lure to timely file an answer, the Respondent has provided no mitigating circumstances suchthatany reduction oftheproposed sanction may be found.

304/10/2012 13:57 8472947498 

### FAA GLRC PAGE 05/14



### WHEREFORE, theAdministratorherebyrespectfullyrequests (a) the issuance ofan Order granting the Administrator's motion deeming the admission bythe Respondent

### ofthe t\Utb 

### oftheallegations contained inthecomplaint; (b)

### judgment on the pleadings be entered or, in the alternative, the Administrator requests that any hearinginthismatterbelimitedto the issue ofsanction only. Respectfully submitted,

# ~~ 

# ibo/:MJ'2**~B~n~.a~n~a=~~a~r~ti~n~o~~~~~-----D-a~t e---**  

### Complainant's Counsel GreatLakes Region, AGL-7M Federal Aviation Administration 2300E.DevonAvenue Des Plaines, IL 

### 60018 Phone: 847-294-7313 FAX: 

### 847-294-7498

404/10/2012 13:57 8472947498 FAA GLRC PAGE 05/14



### CERTIFICATEOF SERVICE I hereby certify that I have, this date, served the foregoing Motion by mailing copies thereof, as follows
FederalAviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWright Building, Suite2WI000 FAX: 

### 202-493-51.41.
Tim 

### Lodes DirectorofHumanResources MidwestJet Charter, Inc. 412 AirportRoad Mattoon, niinois 61938

Dated this 1O'h 

### day ofApril, 2012



### 5 RegularMail & 

### Facsimile

RegularMail & 

### Certified04/10/2012 13:57 8472947498

January, 28 2012 HearingDocket FederalAviation 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: HearingDocketCk<k, ;. .GC-430,WilburWright Buil,g-Suite 2Wl.OOO De:u:**Hc.~ting** Doe:ket. Clerk, ! I PAGE 07/14

I am i.n receipt of a letter datedJanll.ary 1811 1 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

### ~orviohttingSection 91.180(-a). I Rm

### reque~ting a hca.cing ottbo5C 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 /) I04/10/2012 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 oflransportotlon 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

Greatlakes Region 2300 E. DevonAvenue 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 60018Sincerely,

# '~~~~ 

# 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 10/1404/10/2012 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-7M04/10/2012 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