UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

IN THE MATTER OF: 

WINGS AIR, LLC. 

Respondent 

Tuesday, 

March 18, 2014 

FDMS No. 

FAA-2013-0849 

The conference call took place via 

telephone, pursuant to notice, at 1:30 p.m. 

BEFORE: 

THE HONORABLE J.E. SULLIVAN, 

Administrative Law Judge 

RECEIVED 

APR -2 2014 

HEARING DOCKET 

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APPEARANCES: 

On Behalf of the Complainant: 

ZACHARY M. BERMAN, ESQ. 

of: Office of the Regional Counsel 

Eastern Region 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, New York 11434 

(718) 553-3258 

(718) 995-5699 (fax) 

On Behalf of the Respondent: 

JARED M. ALLEN, ESQ. 

GREG WINTON, ESQ. 

of: The Aviation Law Firm 

One Research Court, Suite 450 

Rockville, MD 20850 

(301) 294-8550 

(301) 294-2525 (fax) 

Also Present: 

CODY L. SMITH, DOT Staff Attorney 

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1 P-R-0-C-E-E-D-I-N-G-S 

2 1:32 p.m. 

3 JUDGE SULLIVAN: Okay. We're on 

4 the record in the matter of Wings Air, LLC. 

5 This is Docket Number FAA-2013-0849. Today is 

6 Tuesday, March 18, 2014. And the parties have 

7 -- are appearing by telephone for a Rule 16 

8 litigation scheduling conference. 

9 The Federal Aviation 

10 Administration which I' 11 hereinafter 

11 abbreviate by its initials the FAA, is 

12 represented by its attorney of record, Zachary 

13 M. Berman. 

14 The Respondent Wings Air, LLC is 

15 represented by its attorney of record, Jared 

16 M. Allen. Also present with Mr. Allen is a 

17 Mr. Gregory Winton who is going to be 

18 appearing as co-counsel in behalf of the 

19 Respondent. 

20 Good afternoon to you all. I'll 

21 simply note a couple of different things 

22 before we get into the bones of the Rule 16 

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1 conference. 

2 It appears that there was a 

3 complaint filed by the FAA in this matter on 

4 or about December 24, 2013. The matter was 

5 referred to the Office of Hearings for 

6 litigation on January 6, 2014, with a Notice 

7 of Assignment of Proceeding was filed, 

8 assigning the case to me. 

9 On January 9, 2014, the FAA filed 

10 its first set of Interrogatories, Request for 

11 Production and Request for Admission. On 

12 January 30, 2014, an Order setting Rule 16 

13 litigation scheduling conference and directing 

14 Rule 26 (f) planning and submission was filed. 

15 And then I have on February 10, 

16 2014, a procedural -- a proposed procedural 

17 schedule filed by the parties. I need to just 

18 do a couple of preliminary questions. And as 

19 always, I'll start with the FAA first. And 

20 then turn to the Respondent second. 

21 Mr. Berman, have you received an 

22 Answer yet from the Responding party? 

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1 MR. BERMAN: To the discovery 

2 requests? 

3 JUDGE SULLIVAN: No. Have you 

4 received an Answer to the complaint? 

5 MR. BERMAN: Yes. 

6 JUDGE SULLIVAN: Okay. When did 

7 you receive that? Do you have that at 

8 before you? 

9 MR. BERMAN: When did -- I'd have 

10 to go through the records here . I know that 

11 they sent it by I think they've been 

12 sending everything by email and also by first 

13 class mail. 

14 Yes, it was mailed on January 3, 

15 2014, and received by our office in the mail 

16 on January 6, 2014. 

17 JUDGE SULLIVAN: Okay, thank you. 

18 My next question to is going to be 

19 addressed to you Mr. Allen. Would you be so 

20 kind as to send the Court a copy of your 

21 answer. 

22 MR. ALLEN: Yes Judge, we will 

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1 serve the Court a copy of our Answer. 

2 JUDGE SULLIVAN: Okay. And when 

3 do you think you'll be able to do that? 

4 MR. ALLEN: We can do that today 

5 Judge. I do show that one was sent to the 

6 Hearing Docket Clerk. Is there a particular 

7 address you would like this one sent to? 

8 JUDGE SULLIVAN: Yes. The 

9 Hearing Docket Clerk basically is the Hearing 

10 Docket Clerk for the FAA. So they don't 

11 forward any materials that you send to them to 

12 this office. You have to individually serve 

13 me. And I don't get it until you file it with 

14 me. So --

15 MR. ALLEN: We'll get that to you 

16 today then Judge. 

17 JUDGE SULLIVAN: If you look at 

18 the service list that's attached to my Rule 16 

19 Order, you'll see my name, my address, my 

20 telephone number and the fax number. And the 

21 telephone number probably needs to be updated. 

22 I'll update that. The general telephone number 

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1 to the office is now 2142, the last three 

2 numbers. And I'll update that. 

3 So essentially when you serve Mr. 

4 Berman and you serve a copy to the Hearing 

5 Docket Clerk, you also need to serve me with 

6 a copy directly to my office. And service 

7 should be by U.S. mail and it should also come 

8 by fax. 

9 And the reason that is because we 

10 now have all of our mail irradiated. So there 

11 can be a delay of up to three weeks before we 

12 receive something that you put in the post 

13 office box. So people also fax us a copy so 

14 that you can make your due dates as directed 

15 by the Court. 

16 So if you could service a copy of 

17 your answer by the close of business today by 

18 fax, my fax number is 202-366-7536. 

19 MR. ALLEN: Okay Judge, I will fax 

20 that to you today. 

21 JUDGE SULLIVAN: Okay, thank you 

22 so much. Now let's chat a little bit about 

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1 the proposed procedural schedule. And Mr. 

2 Berman I'm going to start with you. 

3 And I'm going to start on page 

4 three which has the proposed hearing date of 

5 November 4 to 6, 2014 in New York, New York. 

6 MR. BERMAN: Yes. 

7 JUDGE SULLIVAN: According to my 

8 calendar and maybe you can advise me of 

9 something that you know and I don't, you and 

10 I are already scheduled to appear in New York, 

11 New York for another trial on November 4th 

12 and sth. 

13 MR. BERMAN: Right. I believe 

14 there was a mix up because I may have prepared 

15 this before -- if I submitted that before that 

16 hearing was set. But if that's the case, then 

17 obviously we can't have this hearing on 

18 November -- the Wings Air hearing on November 

19 4"h. 

20 JUDGE SULLIVAN: Well I thought 

21 perhaps you had a -- you had a way of trying 

22 cases concurrent. 

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1 MR. BERMAN: No, no. 

2 JUDGE SULLIVAN: If that's not the 

3 case, we need to talk about a different 

4 hearing date. 

5 MR. BERMAN: Right. 

6 JUDGE SULLIVAN: That probably 

7 will change some of the dates that the parties 

8 have proposed. So I'm going to start with you 

9 Mr. Berman and then I'll turn to the 

10 Respondents for some suggestions as well. 

11 But as I looked at my calendar and 

12 what I have set right now, I'm going to go to 

13 that. I think I could try the case in the 

14 early part of December if the parties were 

15 willing. If that doesn't work, then we're 

16 looking at setting it in 2015, early 2015. 

17 So I wanted to start with your 

18 calendar Mr. Berman. Do you have some early 

19 December 2014 dates that would work for you? 

20 MR. BERMAN: My schedules open in 

21 December -- in early December. 

22 JUDGE SULLIVAN: Okay . Mr . All en, 

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1 I'll turn to you. Would the week of December 

2 gth through the 12th be a potentially good 

3 alternate time period for a trial? 

4 MR. ALLEN: That would work for us 

5 Judge. However we would prefer January if 

6 possible. 

7 JUDGE SULLIVAN: Well January's 

8 not available at all. So when I say early 

9 2015, I'm talking about probably the later 

10 part of February 2015. 

11 MR. ALLEN: That's fine, I have 

12 objection to that either Your Honor. 

13 JUDGE SULLIVAN: Mr. Berman do you 

14 have any objection to moving this into the 

15 later part of February 2015? 

16 MR. BERMAN: No, no. 

17 JUDGE SULLIVAN: Okay, then let's 

18 look at that period and then we can backtrack 

19 and see if you want to keep to the same 

20 schedule or use a little bit more time. So 

21 let me go to February. 

22 Starting with your Mr. Berman, 

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1 would the week of February 23, 2015 be 

2 acceptable? 

3 MR. BERMAN: Yes. I don't know 

4 when President's Day is, but other than that, 

5 we're -- my schedule is open. 

6 JUDGE SULLIVAN: I can tell you 

7 that President's Day in the year 2015 falls on 

8 the previous Monday, February 16, 2015. 

9 MR. BERMAN: Thank you. Yes, I'm 

10 we're available on the week of the February 

11 23, 2015. 

12 JUDGE SULLIVAN: Okay, Mr. Allen 

13 is that acceptable you? 

14 MR. ALLEN: Yes that's acceptable 

15 Judge. 

16 JUDGE SULLIVAN: Okay. It looks 

17 like you had asked -- the two of you had 

18 agreed to a three day hearing, Mr. Berman is 

19 that correct? Or are you looking at something 

20 other than that? 

21 MR. BERMAN: Well I don't think it 

22 should be any more than three days. Probably 

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1 two days is more like it. Because I don't 

2 think there are that many facts in dispute. 

3 But there should be -- that my guess should be 

4 at most three days. 

5 JUDGE SULLIVAN: Mr. Allen, is 

6 that your understanding as well? 

7 MR. ALLEN: Yes Judge. 

8 JUDGE SULLIVAN: Okay. Then let's 

9 plan on utili~ing Monday May I'm sorry, 

10 Monday, February 23, 2015 as a travel day. 

11 We'll use February24, 2015, February25, 2015 

12 and February 26, 2015 as the trial dates with 

13 a return travel day of February 27, 2015. 

14 That having been said, it looks 

15 like if the parties are interested, we can 

16 either keep to the original pre-hearing 

17 schedule, or we can stretch some of the dates 

18 out. Mr. Berman, what's your preference? 

19 MR. BERMAN: In light of the fact 

2 o that the hearing will be scheduled later, I'd 

21 prefer to stretch out the dates a little more. 

22 JUDGE SULLIVAN: Okay. Mr. Allen, 

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1 how about you? 

2 MR. ALLEN: That would be fine 

3 Judge. 

4 JUDGE SULLIVAN: Okay. Well then 

5 I'm going to backtrack a little bit as we do 

6 this and start with your October 15, 2014 

7 written stipulation proposal as well as your 

8 October 1, 2014 exchange of witness lists. So 

9 we'll take a look here. 

10 Why don't we set -- why don't we 

11 set February 6, 2015 for the written 

12 stipulations and/or motions in limine. And 

13 then, excuse me -- have the parties exchange 

14 a witness lists and exhibits by January 16, 

15 2015. Mr. Berman would that work for you for 

16 those two deadlines? 

17 MR. BERMAN: That would be fine. 

18 JUDGE SULLIVAN: And Mr. Allen is 

19 that acceptable? 

20 MR. ALLEN: Yes Judge. 

21 JUDGE SULLIVAN: Okay. Let me 

22 just make some notes. Okay. Then let's talk 

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1 about filing dispositive motions and setting 

2 up that time period. And why don't we do 

3 this. We' 11 set a telephone conference first. 

4 Mr. Allen just so that you know, I 

5 always schedule a telephone conference to 

6 follow the filing of any dispositive motions. 

7 That way if there are any kinds of Motions for 

8 Summary Judgment or to limit the issue that's 

9 in dispute, I can have the parties available 

10 to answer questions. 

11 If there are no motions filed, or 

12 motions that don't require a lot of oral 

13 argument or any oral argument, then I' 11 

14 convert that conference to a pre-hearing 

15 status conference and just check in with the 

16 parties on whether or not they're actually 

17 going to be proceeding to trial. 

18 So with a January 15, 2015 

19 exchange of witness exhibits, I want to give 

20 myself enough time to hear oral arguments and 

21 issue a meaningful decision if in fact there's 

22 a summary judgment motion for me. So let me 

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1 take a look at this. 

2 Looking for all the different 

3 holidays. Mr. Berman, starting with you, do 

4 you have any blackout times for the week of 

5 November 16"h through the 22'd, 2014? 

6 MR. BERMAN: My schedule is open 

7 that week. 

8 JUDGE SULLIVAN: And Mr. Allen, 

9 how about you? 

10 MR. ALLEN: My schedule is open as 

11 well Judge. 

12 JUDGE SULLIVAN: Okay. Why don't 

13 we set the telephone conference for November 

14 18, 2014. Mr. Berman do you have a preference 

15 for morning or afternoon? 

16 MR. BERMAN: Either is fine. 

17 JUDGE SULLIVAN: Mr. Allen, how 

18 about you? 

19 MR. ALLEN: We prefer the 

20 afternoon. 

21 JUDGE SULLIVAN: Okay. Why don't 

22 we say 1:30 to 3:00p.m. then on November 18, 

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1 2014. With that, then I'm going to backtrack 

2 a bit more. Let's put October 28, 2014 for 

3 the deadline for filing any reply to summary 

4 judgment response and October well 

5 actually let me just -- well, yes that sounds 

6 right. 

7 Let's say October 17 for filing a 

8 reply then how about September 26, 2014 for 

9 filing a dispositive motion. Mr. Berman does 

10 that look like an adequate amount of time to 

11 either file or respond to a motion? 

12 MR. BERMAN: Yes it does. 

13 JUDGE SULLIVAN: And Mr. Allen, 

14 how about for you? 

15 MR. ALLEN: Yes Judge. 

16 JUDGE SULLIVAN: Okay. Then why 

17 don't we set-- what's next? The deadline for 

18 completing general discovery a little past 

19 your original due date. You had indicated May 

20 21, 2014 with a June 7 June 12, 2014 

21 deadline for supplemental material. And I'm 

22 redoing my litigation order at this current 

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1 time. 

2 What I'm going to do is set a 

3 deadline for completing general discovery. 

4 And then basically direct the parties to 

5 supplement pursuant to the Regulations as soon 

6 as possible once information is known. 

7 So the general discovery would be 

8 extended past May 21, 2 014, past the proposed 

9 June 12, 2014 deadline for taking supplemental 

10 depositions. And we could make it a date in 

11 August I think. We could make it say either 

12 August sth or 15'h. Mr. Berman do you have a 

13 preference? 

14 MR. BERMAN: Either one would be 

15 fine. 

16 JUDGE SULLIVAN: Mr. Allen how 

17 about you? 

18 MR. ALLEN: No preference Judge. 

19 JUDGE SULLIVAN: Okay. Why don't 

20 we just say August 15, 2014 for completing 

21 general discovery. That will give you all a 

22 little bit of time to enjoy the Labor Day 

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1 holiday and still have approximately one month 

2 to decide based on the discovery that's 

3 completed, whether or not you have enough to 

4 pursue motions for dispositive relief. 

5 Let's talk about during the period 

6 of discovery. Discovery is ongoing obviously. 

7 And I like to ask the parties to exchange 

8 initial disclosures that are commonly 

9 described in Rule 26A (1) (a). And those are 

10 basic disclosures that most people do without 

11 even thinking about it. But I like to include 

12 that in my order nonetheless. 

13 You had indicated an April1, 2014 

14 deadline to begin discovery. And it looks 

15 like you've already initiated some which is 

16 fine. Mr. Berman it's now March 18, 2014. 

17 Two weeks from now is April 1, 2014. Would 

18 you be able to meet an April 1, 2014 deadline 

19 for just, voluntarily just providing 

20 disclosures? 

21 MR. BERMAN: Yes. 

22 JUDGE SULLIVAN: Okay, Mr. Allen, 

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1 how about you? 

2 MR. ALLEN: Yes Judge. 

3 JUDGE SULLIVAN: Okay. Then what 

4 I'll do is I'll set April 1, 2014 for the 

5 deadline for initial disclosures. And I'll 

6 simply note that on or before April 1, 2014, 

7 general discovery should begin. 

8 And I do that in part because I 

9 have a number of people who appear before me 

10 who are not as familiar as the two of you 

11 might be with discovery exchange. And they 

12 have waited until discovery is closed before 

13 they begin to exchange discovery. And so I 

14 want to make sure everybody's on the same 

15 page. Discovery begins no later than two 

16 weeks from today. 

17 Let's talk then about an interim 

18 date in that period of time in discovery. I 

19 do want to the parties to specifically 

20 disclose if they are retaining or hiring an 

21 expert. Or if they have an expert witness on 

22 staff that they're planning to use. 

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1 That's different from having the 

2 cadre of people that work in your office that 

3 occasionally have expertise that you draw 

4 upon. But I am interested in setting a date 

5 for the parties to disclose if they're going 

6 to be using a special expert. 

7 If discovery starts on April 1, 

s 2014 and concludes no later than August 15, 

9 2014, it would seem reasonable to me to 

10 disclose a special expert if the parties are 

11 planning to use one, on or before June 30, 

12 2014. Mr. Berman is that an acceptable date, 

13 or do you prefer a different date? 

14 MR. BERMAN: That would be fine. 

15 JUDGE SULLIVAN: And Mr. Allen? 

16 MR. ALLEN: That's acceptable to 

17 us Judge. 

18 JUDGE SULLIVAN: Okay. Then with 

19 that, let me ask you about the proposed 

20 specific location for the hearing. You had 

21 indica ted New York, New York. I have had some 

22 good success in finding a Federal District 

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1 Courthouse in Islip, New York. That doesn't 

2 mean that I would be precluded from looking in 

3 downtown New York City. But I want to see if 

4 the parties would be willing to allow me the 

5 option. Because we do sometimes have trouble 

6 finding courthouse days. 

7 Mr. Berman, starting with you, is 

8 there any -- would you have any objection to 

9 allowing the Court the flexibility if you 

10 will, of looking in both the downtown New York 

11 area as well as in the Long Island area? 

12 MR. BERMAN: No, either location 

13 would be fine. 

14 JUDGE SULLIVAN: Okay. And Mr. 

15 Allen, how about you? 

16 MR. ALLEN: For the Respondent, 

17 Islip is a bit too far for us. We would 

18 suggest the White Plains U.S. District Court 

19 as a possibility. 

20 JUDGE SULLIVAN: And where is 

21 that? 

22 MR. WINTON: Westchester County, 

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1 White Plains is the name of the city. And 

2 Judge this is Greg Winton. I personally 

3 appeared there before. 

4 The hallways were always empty. 

5 It's a wonderful court facility. It's never 

6 crowded. Just like Islip is, but its much 

7 closer to where my client is. And it's 

8 located north of New York City. 

9 JUDGE SULLIVAN: Okay. And Mr. 

10 Winton, just so that you know, typically only 

11 one counsel appears and speaks at any given 

12 time. So if you are going to be the speaker 

13 in the future, you should be the one speaking 

14 throughout the conference. 

15 If you are not going to be the one 

16 speaking, then I will ask you to consult 

17 privately with Mr. Allen who currently is the 

18 attorney of record. 

19 MR. WINTON: We'll do so. Sorry 

20 Your Honor. 

21 JUDGE SULLIVAN: Okay, thank you 

22 so much. Mr. Allen, let me dovetail onto 

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1 that. Mr. -- your colleague Mr. Winton has 

2 made a recommendation for a White Plains, New 

3 York facility. Do you know anything more 

4 about that other than what Mr. Winton has said 

5 already? 

6 MR. ALLEN: I do not Your Honor, 

7 other than that our client would prefer that 

8 location. 

9 JUDGE SULLIVAN: Okay. Mr. Berman 

10 are you familiar with the White Plains, New 

11 York area? 

12 MR. BERMAN: I have a general 

13 knowledge as to where it is. I would have no 

14 objection to having the hearing in White 

15 Plains. 

16 JUDGE SULLIVAN: Okay. Part of --

17 part of my consideration is how easy or how 

18 difficult it is to travel to a location. So 

19 Mr. Allen do you know whether there are 

20 airport facilities in White Plains, New York. 

21 MR. ALLEN: I do not Your Honor. 

22 JUDGE SULLIVAN: Okay. I' 11 

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1 simply take that under advisement and I will 

2 have my staff check into it. If it is 

3 possible to have it in White Plains, New York, 

4 and we can get a courthouse there, I'm happy 

5 to do that. 

6 If there are no easy ways to get 

7 to White Plains by plane or Amtrak for example 

8 from D.C., then I'll default to the next 

9 available location, which would be either 

10 downtown New York or central Islip. 

11 So and I will be providing 

12 notice of where we find a courthouse space 

13 probably around December 2014. So it won't be 

14 done immediately. Part of that is because 

15 it's very time consuming for the staff to do. 

16 And often times when we contact the federal 

17 courthouses, they're not willing to schedule 

18 that far in advance because they don't know 

19 what their own schedules are. 

20 So we usually are able to confirm 

21 and get courtroom space about two months ahead 

22 of this hearing. And so if this case doesn't 

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1 settle for example, that's when you're going 

2 to be receiving a firm notice of where we're 

3 going to be. 

4 But I will start with White 

5 Plains, New York. If that doesn't work out 

6 for any reason, I'll move into either downtown 

7 New York or Islip. 

8 Mr. Berman, turning back to you. 

9 Is there anything else that we need to address 

10 or set up for your client today? 

11 MR. BERMAN: No Judge. 

12 JUDGE SULLIVAN: Okay. Mr. Allen, 

13 on behalf of your client, anything we need to 

14 set up or take care of? 

15 MR. ALLEN: Nothing further Judge. 

16 JUDGE SULLIVAN: Okay. Then I 

17 will thank you both very much or excuse me, 

18 thank you all very much for your time and your 

19 presence today. It appears our business is 

20 complete. 

21 I'll be sending out a litigation 

22 procedure order either today or tomorrow that 

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1 codifies all the dates that we've talked about 

2 and agreed to. With that, I' ll wish you very 

3 good luck in your discovery exchange and your 

4 settlement discussions. I'll look forward to 

5 talking to you, gosh it's going to be some 

6 time from now. Let me see my calendar date. 

7 November 18, 2014 at 1:30 to 3:00 p.m. for 

8 either pre-hearing status conference or a 

9 dispositive motion conference. 

10 If you need other assistance prior 

11 to that time, the litigation procedure order 

12 will give you instructions on how to contact 

13 my office to schedule any other kind of 

14 conference on my calendar. It will also give 

15 you the name and phone number of the attorney 

16 on my staff who works on the -- who will be 

17 working on this case. And his name is Mr. 

18 Smith. And he can help either party with any 

19 kind of procedural questions that you might 

20 have between now and November 2014. 

21 With that we can go off the record 

22 and I wish you all a good day. Thank you so 

NEAL R. GROSS 

(202) 234-4433 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
27 

1 much. 

2 MR. BERMAN: Thank you. 

3 MR. ALLEN: Thank you. 

4 JUDGE SULLIVAN: All right, bye, 

5 bye. 

6 (Whereupon, the above-entitled 

7 proceeding was concluded at 2:00p.m.) 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
A 

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Neal R. Gross and Co., Inc. 

(202) 234-4433 

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Neal R. Gross and Co., Inc. 

(202) 234-4433 

Page 29 

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Neal R. Gross and Co., Inc. 

(202) 234-4433 

Page 30 

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Neal R. Gross and Co., Inc. 

(202) 234-4433 

Page 31 

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C E R T I F I C A T E 

This is to certify that the foregoing transcript 

In the matter of: wings Air, LLC 

Before: DOT Office of Hearings 

Date: 03-18-2014 

Place: Conference Call 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

(202} 234-4433 

Court Reporter 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISlAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com