### SERVED: June 29, 2012 U.S. DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, DC
IN THEMATTER OF COLGANAIR, INC. FAADOCKET NO. CP09EA0018 (Civil Penalty Actions) FDMS NO. FAA-2009-0582 

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### ORDER OF CHIEF ADMINISTRATIVE LAWJUDGE TO SHOW CAUSE WHY DEFAULT SHOULD NOT BEENTEREDFORFAILURE TO COMPLYWITH ORDERS This proceeding arises from a Complaint served June 26, 200?, bythe Regional Counsel, EastemRegion, Federal Aviation Administration ("Complainant"),1 and a Request for Hearing by Colgan Air, Inc. ("Respondent"), dated June 15, 2009.2 The undersigned was assigned to this proceeding by Notice served July 15, 2009. 3 '• A Prehearing Conference was held July 13, 2011, during which Complainant agreed to provide the record ofSturgell v. Angstadt 4 and agreed to reply to Respondent's briefs ordered at the pre- "" hearing conferencebyAugust 29, 2011.5 At the Prehearing Conference, Respondent was ordered to produce: (1) proposed factual con.: tentions and submissions differing from those made inSturgell v. Angstadt;6 (2) a Motion to

1Compl. FAADocketNo. CP09EA0018 (June 26, 2009). 2 Request for Hearing at 2, FAADocket No. CP09EA0018 (June 15, 2009). 3 Notice ofAssignment ofProceeding at 1, FAADocketNo. CP09EA0018 (July 15, 2009). 4 Transcript ofPrehearing Conference (PHC Tr.) at 83, FAA Docket No. CP09EA0018 (July 13, 2011); see NTSB DocketNo. SE-18404 (2008), Petitionfor Review ofanAdministrative Agency Action, D.C Cir. Docket No. 09- 1005, (2008),petition denied, 348 Fed.App'x 589 (D.C. Cir. 2009). 5PHC Tr. at 86, FAADocketNo. CP09EA0018 (July 13, 2011). Complainant and Respondent agreed to change the reply date to September 29, 2011 perRespondent's ConsentMotiontoModify Briefing Schedule, FAA DocketNo. CP09EA0018 (Aug. 8, 2011).Amend the Answer to conform to admissions and positions during the prehearing conference; 7 (3) the report or other documents relating to the internal investigation about the flight manifest; 8 (4) the load manifest allegedly prepared by First Officer Coats; 9 (5) the identity of Respondent's Chief Pilot at the time in issue; 10 (6) Mr. Schmidt's employment with Respondent; 11 (7) information concerning First Officer Coats; 12 (8) a brief on the responsibility of Respondent for the acts of its officers and pilots; 13 (9) a statement as to whether Respondent is asserting the applicability of the small business provisions in 49 U.S.C. § 46301(a)(5) for computing the proposed penalty; 14 (10) and, if so, a brief explaining how the provisions apply to Respondent and its affiliates. 15 Respondent failed to file any of the documents ordered. The Rules of Practice provide a Respondent with the opportunity to request a formal hearing to contest an enforcement action by the Complainant. 16 Such a hearing is provided for the benefit, and at the option, of the Respondent. To preserve this opportunity, a Respondent must comply with the Rules of Practice and the Judge's**Ord~rs** . 17 Respondent has not complied with the Judge's Orders at the Prehearing Conference. ·, Pinnacle Airlines, Corp., filed a Notice of Automatic Stay on June 22, 2012, stating that on April1, 2012, Pinnacle Airlines, Inc., along with its affiliate companies (including Respondent), had filed a voluntary petition fOr relief under Chapter 1 1 of Title 11 of the Unitea States Code 6 PHC Tr. at 26-27, FAA Docket No. CP09EA0018 (July 13, 2011). 7 Id. at 22-23. 8 Id. at 21-22. 9 Id. at 35-36. 10 Id. at47. 11 Id. 12 Id. at 59. 13 ld: at 84-85. 14 Id. at 83. 15 Id. at 71. 16 Rules of Practice in FAA Civil Penalty Actions, 14 C.F.R. § 13.16(t)(3) . 17 See Order to Show Cause of Chief Administrative Law Judge at 6, In re Redford Forwarding Co., Inc., FAA Docket No. CP01EA0002 (Oct. 3, 2002). -2-**~** :

### with the United States BanlauptcyCourt for the Southern District ofNew Yorlc 18 

### Although a bankruptcy filing creates an automatic stay ofadministrative actions against a debtor, 19 

### it does not apply to enforcement proceedings by a federal regulatory agency in cases involving safety and regulatory laws,20 

### such as this. 21 

### Accordingly, IT IS ORDERED THAT1. Respondent, on orbefore July 30, 2012, shall file and serve a response (a) indicating (1) why the case should not be dismissed for failure to comply with the Orders of the ChiefAdministrative Law Judge and (2} why Respondent should be permitted to late file the requested documents, and (b) attaching all documents ordered at the Prehearing Conference on July 13, 2011. 2. Absent such a filing byRespondent, the allegations ofthe Complaint shall be deemed admitted and the Complaint shall become an Order assessing a civil penalty in the amount of$22,000. 3. A copy ofthis order shall be sent to Respqndent's Counsel,**Pinna~le** 

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18 Pinnacle Airlines, Inc.'s Notice ofAutomatic Stay at 1, DocketNo. FAA-2009-0180 (June 22, 2012); see also In re PinnacleAirlines Corp., Case No. 12-11343-reg (Bankr. S.D.N.Y.) 19 11 U.S.C. § 362(a)(l) ("[Bankruptcy filing stays] the commencement or continuation, including the issuance of employment ofprocess, ofajudicial,...administrative, or other actionorproceeding against the·d@btor that was or could have beencommenced before the commencement ofthe case under this title, orto recover a claim against the debtor that arose before the commencement ofthe case under this title[.]").
. 20 Bankruptcy filing does not stay "the commencementorcontinuation ofan action orproceeding by a governmental unit
... to enforce such governmental unit's ororganization's police orregulatory power[.]" 11 U.S.C. §362(b)(4). See also S. Rep. No 989, 95th Cong., 2d Sess. 53. Reprinted in 1978 U.S. Code Cong. &Ad. News 5787,5838 ("Paragraph (4) excepts commencement or continuation ofactions and proceedings by governmental units to enforcepolice orregulatory powers. Thus, where a governmental unit is suing a debtor to prevent or stop violation offraud, environmental protection, consumerprotection, safety, or similarpolice orregulatory laws, or attempting to fix damages for violation ofsuch a law, the action orproceeding is not stayed under the automatic stay."). 21 See Order ofAdministrative LawJudge, In re RockyMountainAirways, Inc., FAADocket No. CP89NM0483 (Feb. 28, 1991); seeIn reOrderofAdministrative LawJudge, ContinentalAirlines, FAADocketNo. CP89SW0016 et al. (Jan. 9, 1991) at 3 ("This proceeding seeks to fix a civil penalty and determine issues offact and lawrelated to the FAA's regulatory functions and Respondent's regulated conduct. This proceeding does not seek to enforce orcollect a moneyjudgment
... and there is no reason to stay these proceedings."). AccordOrder ofthe ChiefAdministrative LawJudge,In re ContinentalAirlines, FAADocketNo. CP89SW0016 etal. (Dec. 18, 1990) at 1-2. See also In re ContinentalAirlines, Inc., FAADocketNo. CP89NE0031 et al., 199.1 FAALexis 310 at *7 ("The conduct ofdisciplinary proceedings against alleged violators ofthe safety regulations and the deterrence offuture violations ofthe [Federal Aviation Regulations] are undoubtedly within theregulatory power oftheFAA").


### -3-'t .. Corp.'s Counsel, and Respondent by registered or certified mail at the addresses provided in previous filings in this case.**-~~Q.** \?J Hon. Ronnie A. Yo Chief Administrative Attachment - Service List -4-SERVICE LIST ORIGINAL & ONE COPY Hearing Docket Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building

- Room 2W100022 ONE COPY Mark A. Dombroff& Charles W. Ryan, III, Respondent's Counsel DOMBROFF GILMORE JAQUES & FRENCH, P.C. 1676 International Drive- Penthouse McLean, VA 22102 TEL: 703-336-8700 FAX: 703-336-8750 W. Chris Harrison, PinnacleAirlines, Corp. Counsel In-House Counsel Pinnacle Airlines, Corp. 40 S. ·Main Street, 14th Floor Memphis, TN 38103 TEL: 901-348-2483 Colgan Air, Inc., Respondent One Commerce Square 40 S. Main St. Memphis, TN 38103 Christian L. Lewerenz, Complainant's Counsel Office ofthe Regional Counsel, EAL-7 Federal Aviation Administration 1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3273 FAX: 718-995-5699 FAA Docket No. CP09EA0018 (Civil Penalty Action)

22 Service was by U.S. Mail. For service in person or by expeditedcourier, use the followingaddress: Hearing Docket, Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building- Room 2Wl000, Washington, DC 20591, Attention: Hearing DocketClerk, AGC-430.


### -5-The Honorable Ronnie A. Yoder, Chief Administrative Law Judge U.S. Department of Transportation Office of Hearings, M-20, Room E12-320

1200 New Jersey Avenue, S.E. Washington, DC 20590 TEL: 202-366-2142 FAX: 202-366-7536

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