U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASIDNGTON, DC 

IN THE MATTER OF 

EXECUTIVE FLITEWAYS, INC. 

FAA DOCKET NO. FAA-2013-1085 

(Civil Penalty Action) 

FAA CASE NO. 2012S0950377 

RECEIVED 

APR 2 8 2014 

HEARING DOCKET 

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 

Pursuant to Sections 13.209(f) and 13.218 of the Rules of Practice in FAA Civil Penalty 

Actions (14 C.P.R.§§ 13.209(f), 13.218), the Complainant hereby files this motion to deem the 

allegations in the complaint admitted, to enter an order assessing civil penalty for $15,400 or, 

alternatively, to limit the hearing to the issue of sanction. In support of this motion, the 

Complainant states as follows: 

1. On March 11, 2014, the Complainant filed the complaint in the above-captioned 

matter with the Hearing Docket by U.S. Certified Mail and served a copy of the complaint on 

Respondent by Certified Mail (tracking number 71791000164307201623). See Attachment 1 

(copy of U.S. Certified Mail Receipt pertaining to the service copy of the complaint sent to 

Respondent on March 11, 2014). See also Attachment 2 (U.S. Postal Service email confirmation 

that the article bearing tracking number 71791000164307201623 was delivered on March 14, 

2014). In addition to the complaint, the undersigned mailed a cover letter to the Respondent that 

contained the following statement: 
You must file a written answer to the Complaint not later than thirty (30) days after 

service of the Complaint. Service is defmed in Section 13.211 of the Rules of Practice in 

FAA Civil Penalty Actions (14 C.P.R. Section 13.211), a copy of which was sent to you 

with the Notice of Proposed Civil Penalty. The answer must be dated and signed in 

accordance with Section 13.209 of the Rules of Practice (14 C.P.R. Section 13.209). 

See Attachment 3. 

2. The date of service of the complaint in this case was March 12, 2014, and was 

accomplished by U.S. Certified Mail. See Compl. at 10 (Certificate of Service attached to the 

complaint). See also 14 C.P.R. § 13.211(d) (defining the date of service under the applicable 

Rules of Practice). But "[ w ]henever a party has a right or a duty to act or to make any response 

within a prescribed period after service by mail, or on a date certain after service by mail, 5 days 

shall be added to the prescribed period." 14 C.P.R. § 13.211(e). 1 Accordingly, Respondent's 

written answer to the complaint was due no later than April20, 2014. 

4. As of the date of this motion, undersigned counsel has not received a service copy 

of Respondent's answer to the complaint. Prior to filing this motion, undersigned counsel 

checked the Hearing Docket and was informed no answer had been received for filing. The last 

docketed event at http://www.regulations.gov for Docket No. FAA- 2013-1085 is the ALJ's 

Order Setting Ru1e 16 Litigation Schedule Conference and Directing Rule 26(f) Planning and 

Submission, which the electronic docket shows was posted on Aprill, 2014. 

5. Respondent has failed to file an answer within 30 days after service of the 

complaint. 

6. Under 14 C.P.R. § 13.209(f) an answer filed outside ofthe time prescribed under 

Section 13 .209( e) can only be accepted upon Respondent showing good cause for the late filing 

of the answer. The Administrator has held that Section 13.209(f) "is clear, and does not permit 

1 This 5-day grace period ensures that "a party will not be penalized for unanticipated or unexplained delays in the 

mail during the grace period." 53 Fed. Reg. 34646, 34649 (Sept. 7, I 988). 

2 
exceptions." In the matter ofPlavter, FAA Order No. 90-15, 1990 WL 656268, at *I (F.A.A. 

Mar. 19, 1990), aff'd Playter v. FAA, 933 F.2d 1009 (6th Cir. 1991). Furthermore: 

The Rules of Practice and the Administrator's precedent require the law judge to deem 

the allegations admitted unless [Respondent] shows good cause for the untimeliness of 

the answer. ... The Administrator has held, based on Section 13.209(f), that law judges 

are without authority to extend the deadline for filing an answer without a showing of 

good cause. . . . "A showing of good cause is mandatory. Without it, failure to file an 

answer by the deadline may not be excused." 

In the matter ofLarrv's Flying Service, Inc., FAA Order No. 98-4, 1998 WL 158281, at *1 

(F.A.A. Mar. 10, 1988) (quoting Atlantic World Airways, FAA Order No. 95-28 at 4)). 

7. It is Respondent's burden to "show good cause for an untimely answer if it wishes 

to avoid default judgment." Larry's Flying Service, 1998 WL 158291, at *4. Yet, despite the 

clear warning in the Rule of Practice of the attendant consequences for failing to answer the 

complaint, Respondent has made no attempt to show good cause for failing to file its answer in 

this case. 

WHEREFORE, the Complainant respectfully requests that the allegations in the 

complaint be deemed admitted under 14 C.P.R.§ 13.209(f). In addition, the Complainant further 

requests that the law judge issue an order assessing civil penalty for $15,400 as sought in the 

Complaint or, alternatively, issue an order limiting the hearing in this matter to the issue of 

sanction. 

Respectfully submitted, 

Peter J. Lynch 

Assistant Chief Counsel 

EyZ/7-iYjGC-300 

Michael F. McKinley~ Senior Attorney 

Enforcement Division, AGC-300 

Federal Aviation Administration 

3 
Dated: April23, 2014 

Office of the Chief Counsel 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Telephone: (202) 267-7100 

Facsimile: (202) 267-5106 

4 
. 

For de~ 'intorma\ion vis,itJI'UY~~;tb~~Pite at ww w.usps.com 

r-L _______ 7_1_7_9_1_0~0~0164307201623 

Sent To 

Batch#: 9 

Article #: 71791000164307201623 

Date/Time: 3/11/2014 11:53:26AM 

Code: FAA, AGC-300 

Code2: M, McKinley 

File: Executive Fliteways 

Internal File #: Complaint 

Internal Code: 201250950377 

Street Apt. No.; 

orPOBoxNo. 

City; State, Zip-+4 

John W. Gallo, President 

Executive Fliteways, Inc. 

One Clark Drive 

Ronkonkoma,NY11779 

PS Form 3800, ifil..nuaey 2013 ~ See Reverse (Qr Instructions 

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U.S. Department 

of Transportation 

Federal Aviation 

Administration 

March 11,2014 

CERTIFIED 

Office of the Chief Counsel 

Enforcement Division 

John W. Gallo, President 

Executive Fliteways 

One Clark Drive 

Ronkonkoma, NY 11779 

800 Independence Ave., SW. 

Washington, DC 20591 

Area Code 202-267-7100 

Re: In the Matter of Executive Fliteways 

FAA Case No.: 2012S0950377 

Enclosed herewith please fmd one copy each of the transmittal letter, the request for hearing, and 

the complaint in the above-referenced proceeding. 

The FAA has requested that the hearing in this matter be held in New York, NY, and expects that 

the hearing will last one day. 

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

Complaiot. Service is defined in Section 13.211 of the Ru1es of Practice in FAA Civil Penalty 

Actions (14 C.F.R. Section 13.211), a copy of which was sent to you with the Notice of Proposed 

Civil Penalty. The answer must be dated and signed in accordance with Section 13.209 of the 

Ru1es of Practice (14 C.F.R. Section 13.209). 

Peter J. Lynch 

Assistant Chief Counsel 

By: 

Michael F. McKinley 

Senior Attorney 

Office of the Chief Counsel 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Ph: 202-267-7100 

Fax: 202-267-5106 

E-mail: michael.f.mckinley@faa.gov 

Enclosures 

EXHIBIT 
CERTIFICATE OF SERVICE 

I hereby certify that on this date, I have sent by U.S. certified mail, a copy of the 

foregoing motion in the matter of Executive Fliteways, Inc., Docket No. F AA-2013-1 085, Case 

No. 2012S0950377, to: 

Mr. Kenneth S. Gray 

Respondent's Representative 

Director of Operations 

Executive Fliteways, Inc. 

One Clark Drive 

Ronkonkoma, NY 11779 

AND 

The Honorable J.E. Sullivan, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E., Room E11-310 

Washington, DC 20590 

In addition, I hereby certifY that on this date, I have sent by U.S. certified mail the 

original and one copy of the foregoing document to: 

Hearing Docket 

Federal Aviation Administration 

Orville Wright Building 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1 000 

Date: 

~1JV~ April23, 2014 

5