## SERVED: SEPTEMBER 28, 2012

IN THE MATTER OF 

### JOHN CROFT FAA DOCKETNO. [TO BE ASSIGNED] (Civil Penalty Action) FDMS NO. FAA-2012- 0903



### PROCEDURAL ORDER**·~** 

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### In orderto expedite the hearing in this matter, the parties shall comply withthe Procedural Schedule set forth hereinbelow 1• 

### The Rules ofPractice for this proceeding are set forth in 14 C.F.R. Part 13, Subpart G, ofthe Federal Aviation Regulations2

. 

### Those rules provide, inter alia, that the Respondent must file a written Answer ormotion within thirty (30) days after service ofthe Complaint (14 C.F.R. 

### § 13.209(a)), that a general denial is deemed a failure to file an Answer(§ 13.209(e)), that failure to file an Answer without good cause is deemed an admission ofeach allegation inthe Complaint 

### ( §13.209( f)), 

### and that, absent agreement ofthe parties, a party seeking an extension of time must file a writtenmotionnot less than seven (7) days before the document is due, absent good cause shown(§ 13.213(a) and (b)). More specifically, 14 CFR 

### § 13.209 (e) states: A person filing an answer shall admit, deny, or state that the person is without sufficient knowledge orinformation to admit or deny, eachnumbered paragraph ofthe complaint. Any statement or allegation contained in the complaintthat is not specifically denied in the answer may be deemed an admission ofthe truth of that allegation. A general denial ofthe complaint is deemed a failure to file an answer. Under FAA Order 2150.3B andthe Rules governing these proceedings, the Agency attorney and the Respondent are encouraged to considerthepossibility of

1 Materials filed in the FAA Hearing Docket (except for materials filed in security cases) are also available for viewing at http://www.regulations.gov. 2 The Administrator's civil penalty decisions, along with indexes ofthe decisions, the Rules ofPractice, as well as other materials relating to civil penalty cases, are available on the internet at: http:!lwww.faa.gov/about/ojjice

_org/headquarters

_ojjices!agc/pol_ adjudication/ agc400/civil_penalty/; see also: http://ecfr.gpoaccess.gov!cgiltltextltext-idx?c=ecfr&tpl=lecfrbrowse/Titlel4/14tab _02.tpl. In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw 9FTRAN-FAA database). For additional information, see the Web site. 1settlement and compromise ofthis matter. 3 Compromise may be effected with or without a finding ofviolation (14 C.F.R. §13.16 (n) (1)). 

### NOTE: This presidingJudge does notrequire "Discovery" to be served onthe Judge. OtherJudges have differentpolicies, but as long as this case is assigned to the undersigned presiding Judge the parties may, but are notrequired, serve discovery onthe undersigned. Thejudge will not discuss the case with anyparty,4 or its representative on an ex parte basis. Ifa partyhas a non-substantive matterto discuss, they should contact Mr. Ira Leibowitz at (202) 366-2139 (lra.Leibowitz@dot.gov). Administrative matters may be addressed to StaffAssistant, PatMatthews [202-366-5121] (Patricia.Matthews@dot.gov). WHEREFORE, the parties be and are hereby ORDERED to adhere to the following procedural schedule: 1. Venue shall be Sitka, AK; 2. On or before January 4, 2013, the parties shall conclude all discovery including, butnot limited to, depositions, document production, responses to production requests and/or interrogatories. Ifthe parties cannotresolve a discovery·dispute they shall submitthe dispute to the undersigned for resolution in a timely manner; 3. The parties shall be preparedto present this case at a hearing on or after January 4, 20125

, subjectto the availability ofcourtroom facilities. The specific date and time for the hearing will be forthcoming in a separate Order. 4. The parties will have the opportunity to file Post-Hearing briefs and arguments pursuantto a scheduleto be determined at thehearing. For guidance, the following schedule is typically used: Complainant shall file its brieffifteen (15) days after receipt ofthe transcript; Respondent shall its brieffifteen (15) days thereafter; and any rebuttal briefbythe Complainant shall be filed seven (7) days thereafter.

3 See Linda Joyce Goodman, FAA DocketNo. CP89WP0061, Order dated May 30, 1989. 4 "The public policy offavoring and encouraging settlement makes necessary the inadmissibility of settlementnegotiations in order to foster frank discussions". (Fiberglass Insulators, Inc. v Dupuy, et al, (856 F. 2d 652, 26 Fed. R. Evid. Serv. 1225, 1988. See also Coakley & Williams Construction, Incorporated v Structural Concrete Equipment, Incorporated, 973 F.2d 349, 1992; 2 McCormick on Evid. §266 (6th ed.); Rule 68 ofthe Federal Rules ofCivil Procedure.). Rule 408 ofthe Federal Rules of Evidence"

...prohibits the admission ofstatements made in compromise negotiations

..." (In the Matter of Africa Air Corporation, FAA Order No. 99-5). "Rule 408's public policy purpose ofencouraging frank settlement discussions is as compelling in FAA civil penalty proceedings as it is in Federal Trials. Hence, its guidance will be followed in these proceeds." (Id.) 5 14 C.P.R. § 13.221 states: "The administrative lawjudge shall give each party at least 60 days notice of the date, time and location ofthe hearing." 

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### 5. Settled cases will not be removed from the hearing docket until theproper written pleading(s), consistent withthe applicable rules,6 

### is received by the presiding judge.7

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### 6. The parties are advised that submissions sentto the street address ofthe U.S. Department ofTransportation, Office ofHearings, may be delayed due to screening conducted bythe U.S. Postal Service and/or other security agencies and maytake up to four (4) weeks to be delivered. Additionally, submissions maybe "irradiated", which affects the quality ofsubmissions. The parties are encouraged, but not required, to file submissions by private delivery service, facsimile, or email. The certificate ofservice shall reflect the manner ofservice. The parties are encouraged to provide email addresses to expedite service of pleadings.

# e-~c\~{61 Richard C. Goodwin U.S. Administrative Law Judge Attachment

- Service List

6 14 C.F.R. § 13.215 states: At any time before orduring a hearing, an agency attorney may withdraw a complaint orparty may withdraw a request for a hearing without the consent ofthe administrative law judge. Ifan agency attorney withdraws the complaint or a party withdraws the request for a hearing and the answer, the administrative lawjudge shall dismiss the proceedings under this subpart with prejudice. 7 See: In the Matter ofLewis Drake & Associates, FAA DocketNo. CP03S00045, DMS. No. FAA-2003- 16379, "Order Terminating Proceeding", served February 26, 2005; citing Kerry James Eldridge, FAA Docket CP89GL0458, "Order Canceling Hearing and Terminating Proceeding", served January 16, 1991, at 1; In The Matter ofRobert Harris FAA Docket No. CP03EA0001. DMS No. FAA-2002-14236., Orders dated October 18,2004 and October 27,2004. USAIR, Inc., FAA Docket CP90NE0359, Trans World Airiines, Inc., FAA Dockets CP90GL0085, CP90CE0110, CP90CE0114, CP90CE0134, Order of Administrative Law Judge Burton S. Kolko, served April 8, 1992, p. 2. See "OrderDismissing Complainant's Appeal". In The Matter ofRobert Harris, FAA DocketNo. CP03EAOOO 1. DMS No. FAA2005-14, August 15, 2005. 

### 3

### SERVICE LIST ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention:. Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2W1000 1



### John Croft, 

### Respondent 134 Lincoln Street ·Sitka, AK 99835 TEL: 907-738-1256 

### ONE COPY

Howard L. Martin, Jr., 

### Complainant's Counsel Regional Counsel, Office ofRegional Counsel, AAL-7

.Alaskan Region

Federal Aviation Administration 222 West 7th Avenue , Box14 Anchorage, AK 99513-7587 TEL: 907-271-5273 FAX: 907-271-2800 The Honorable Richard C. Goodwin,

### Administrative LawJudge U.S. Department ofTransportation Office ofHearings, M-20, 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: Attorney-Advisor 202-366-2139 StaffAssistant 202-366-5121 FAX: 202-366-7536 FDMS No. FAA-2012-0903 (Civil PenaltyAction)

1 Service was by U.S. Mail. For service inperson or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.