Inthe matter of: PREMIERJETS, INC. 

# RECEIVED

U.S. DEPARTMENT OF TRANSPORTATION 

## JUL 102012

FEDERAL AVIATION ADMINISTRATION 

# HEARING DOCKET ) 

### ) ) ) FAA DocketNo. [to be assigned] Case No. 2011WP910359 Judge Richard C. Goodwin



### MOTION TO DEEM THE ALLEGATIONS IN THE COMPLAINT ADMITTED, TO ENTERAN ORDER ASSESSING CIVIL PENALTYFOR $9,850 OR, ALTERNATIVELY, LIMIT THE HEARING TO THE ISSUE OF SANCTION, AND TO STAY THE DISCOVERY DEADLINE PENDING RESOLUTION OF THE ISSUE RAISED IN TillS MOTION Pursuantto Sections 13.209(f) and 13.218 ofthe Rules ofPractice inFAA Civil Penalty Actions, 14 C.F.R. §§ 13.209(f), 13.218, the Complainanthereby files this motion to deemthe allegations inthe complaint admitted, to enter an order assessing civil penalty for $9,850 or, alternatively, to limitthe hearing to the issue ofsanction, and to staythe discovery deadline pending resolution ofthe issues raised in this motion. In support ofthis motion, the Complainant states as follows: 1. OnMay 17, 2012, the Complainant filed the complaint inthe above-captioned matter withthe Hearing DocketbyU.S. CertifiedMail and served a copy ofthe complaint on Respondentby Certified Mail (tracking number 7006 0810 0000 4553 5255). See Attachment 1 (copy ofU.S. Certified Mail Receipt pertaining to the service copy ofthe complaint sentto Respondent onMay 17, 2012). See also Attachment 2 (U.S. Postal Service email confirmation thatthe article bearing tracking number 7006 0810 0000 4553 5255 was delivered on May 21, 2012). In addition to the complaint, the undersigned mailed a cover letter to the Respondent that containedthe following statement: Youmustfile a written answer to the Complaintnotlater than thirty (30) days after service ofthe Complaint. Service is defined in Section 13 .211 ofthe Rules ofPractice inFAA Civil Penalty Actions (14 C.P.R. Section 13.211), a copy ofwhich was sent to you with the Notice ofProposed Civil Penalty. The answer mustbe dated and signed in accordance with Section 13.209 ofthe Rules ofPractice (14 C.P.R. Section 13.209). See Attachment 3. 2. On June 11, 2012, U.S. Administrative Law Judge Richard C. Goodwinissued a Procedural Order (hereinafter "ALJ's Procedural Order") inthis matter advising the parties that, among other things, they must comply withtheprocedural schedule set forth therein and thatthe applicable Rules ofPractice inthis case were set forth in 14 C.P.R. Part 13, Subpart G. 1 ALJ Procedural Order at 1. The ALI's Procedural Orderreiterated that 14 C.P.R.§ 13.209(f) requires Respondent to "file a written Answer or motion withinthirty (30) days after service ofthe Complaint" and warnedthat failing to do so "without good cause is deemed an admission ofeach allegation inthe Complaint

...." Id. The ALJ's Procedural Order specified whatthe Rules of Practice require in answering a complaint and that a general denial ofthe complaint is deemed a failure to answer. Id. (quoting 14 C.P.R. § 13.209(e) in its entirety). 3. On June 20, 2012, the undersigned, having notreceived the answer from the Respondent, sent ane-mail to the Respondent's Presidentreminding him ofthe requirement under 14 CFR Section 13.211 and inviting himto scan and sent the answer in response to the email. See Attachment 4. 4. The date ofservice ofthe complaint in this case was May 17, 2012, and was accomplished by U.S. Certified Mail. See Compl. at 5 (Certificate ofService attached to the complaint). See also 14 C.P.R. § 13.2ll(d) (defining the date ofservice under the applicable Rules ofPractice). But "[w]henever a party has a right or a duty to act orto make any response within a prescribedperiod after service by mail, or on a date certain after service by mail, 5 days

1 The ALJ's Procedural Order specified the internet addresses where the Rules ofPractice to this proceeding could be found. !d. at I n.l. 2

### shall be added to the prescribed period." 14 C.F.R. § 

### 13.2ll(e).2 

### Accordingly, Respondent's written answer to the complaint was due no later than June 21, 2012. 5. As ofthe date ofthis motion, undersigned counsel has not received a service copy ofRespondent's answer to the complaint. Prior to filing this motion, undersigned counsel checked the Hearing Docket and was informed no answer hadbeenreceived for filing. The last docketed event at http://www.regulations.gov for FDMS No. FAA- 2012-0470 is the ALJ's Procedural Order, which the electronic docket shows was posted on June 13, 2012. 6. Respondent has failed to file an answer within 30 days after service ofthe complaint. 7. Under 14 C.F.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 ofthe answer. The Administrator has held that Section 13.209(f) "is clear, and does not permit exceptions." In the matter ofPlayter, FAA Order No. 90-15, 1990 WL 656268, at * l (F.A.A. Mar. 19, 1990), affd Playter v. FAA, 933 F.2d 1009 (61h 

### Cir. 1991). Furthermore: The Rules ofPractice and the Administrator's precedent require the lawjudge 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 lawjudges are without authority to extend the deadline for filing an answer without a showing of good cause. . . . "A showing ofgood cause is mandatory. Without it, failure to file an answer bythe deadline may not be excused." Inthe matter ofLarry's Flying Service, Inc., FAA OrderNo. 98-4, 1998 WL 158281, at *l (F.A.A. Mar. 10, 1988) (quoting Atlantic World Airways, FAA OrderNo. 95-28 at 4)). 8. It

### is Respondent's burden to "show good cause for an untimely answer ifit wishes to avoid defaultjudgment." Larry's Flying Service, 1998 WL 158291, at *4. Yet, despite the clear warning inthe ALJ's Procedural Order ofthe attendant consequences for failing to answer

2 This 5-day grace period ensures that "aparty will notbe penalized for unanticipated or unexplained delays in the mail during the grace period." 53 Fed. Reg. 34646, 34649 (Sept. 7, 1988). 3

### the complaint and that the ALJ's Procedural Order directs all discovery in this case be concluded "[

o]n orbefore August I0, 2012," Respondent has made no attempt to show good cause for failing to file its answer inthis case. WHEREFORE, the Complainantrespectfully requests that the allegations inthe complaintbe deemed admitted under 14 C.P.R. 

### § 13.209(f). In addition, the Complainant further requests that the lawjudge issue an order assessing civil penalty for $9,850 as sought in the complaint or, alternatively, issue an order limiting the hearing inthis matter to the issue of sanction. Lastly, because discovery is currently scheduled to close onAugust 10,2012 absent further action by thejudge inthis case, the Complainant requests thatthe discovery schedule be stayed pending resolution ofthe issues raised inthis motion.

Dated: July 9, 2012 Respectfully submitted, Peter J. Lynch Assistant ChiefCounsel Enforcement Division, AGC-300

Michael F. McKinley Senior Attorney Enforcement Division, AGC-300 Federal Aviation Administration Office ofthe ChiefCounsel 800 Independence Ave., S.W. Washington, D.C. 20591 Telephone: (202) 267-7100 Facsimile: (202) 267-5106

4m LI1 LI1 ::r D D D D D r'l <0 

### U.S. Postal Service,. CERTIFIED MAib. RECEIPT (DOmestic Mail On/Y; No Insurance Coverage Provided) Roger B Kelsey President Premier Jets, Inc. 2140 N.E. 25th Avenue Hillsboro, OR 97124 Postmark Here

D Tot1 Premier Jets/MM 5/17/12 2011WP910359 Complaint ..tl D D 1'-SENDER: COMPLETE THIS SECTION

• Complete items 1, 2, and 3. Also complete item 4 if Restricted Delivery is desired. • Print your name and address on the reverse

so that we can return the card to you. • Attach this card to the back of the mailpiece,

or on the front if space permits. 1. Article Addressed to: Roger B Kelsey President Premier Jets, Inc. 2140 N.E. 25th Avenue Hillsboro, OR 97124 3. Service Type D Certified Mail D Registered D Insured Mail D No

D Express Mail D Return Receipt for Merchandise D C.O.D. 4. Restricted Delivery? (Extra Fee) DYes 2. Article Number (Transferfrom service- labeO 

### 7006 0810 DODO 4553 5255 PS Form 3811, February 2004 Domestic Return Receipt 102595-.92-M-154? i·U.S. Department of Transportation Federal Aviation Administration 

### May 17,2012 CERTIFIED Roger B. Kelsey President Premier Jets, Inc. 2140NE25thAvenue Hillsboro, OR 97124 Office of the Chief Counsel Enforcement Division



### Re: In the Matter ofPremier Jets, Inc. FAACaseNo.: 2011WP910359 800 Independence Ave., SW. Washington, DC 20591



### Area Code 202-267-7100

Enclosed herewithplease find one copy each ofthe transmittal letter, the request for hearing, and the complaint inthe above-referenced proceeding. The FAAhas requested that the hearing in this matter be held inPortland, OR, and expects that the hearing will last one day. Youmust file a written answer to the Complaint not later than thirty 

### (30) days after service ofthe Complaint. Service is defmed in Section 13 .211 ofthe Ru1es ofPractice inFAA Civil Penalty Actions (14 C.P.R. Section 13.211), a copy ofwhich was sentto you with the Notice ofProposed Civil Penalty. The answer must be dated and signed in accordance with Section 13.209 ofthe Rules ofPractice (14 C.P.R. Section 13.209). PeterJ. Lynch Assistant ChiefCounsel By: 

### Michael F. McKiu1ey Senior Attorney Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591 Ph: 202-267-7100 Fax: 202-267-5106 E-mail: michael.f.mckinley@faa.gov EnclosuresAnswer to complaint Michael F McKinley to: RBKelsay 06120/2012 09:47AM AGC-300,' Enforcement Division From: Michael F McKinley/AWNFAA To: RBKelsay@premierjets.com Mr. Kelsay: On May 17, 2012, we mailed you a copy ofthe Agency's Complaint in this matter, along with a cover letter that stated, in part, thatyou were required to file an answer to that complaint no later than thirty (30) days from the date we mailed itto you, in accordance with 14 CFR Section 13.211. That regulation states, in part: Date ofservice. The date of service shall be the date of personal delivery; or if mailed, the mailing date shown on the certificate of service, the date shown on the postmark ifthere is no certificate of service, or other mailing date shown by other evidence ifthere is no certificate of service or postmark. Your answer, if it has no already been mailed, is late and Premier is subject to a defaultjudgment for its failure to timely file that answer. Ifyou have mailed it, please scan and attach a copy by return e-rnail or fax a copy to me, as soon as possible, along with any proof of mailing.

Michael F. McKinley SeniorAttorney Office of the Chief Counsel, Enforcement Division Federal Aviation Administration National Headquarters (FOB 1OA), Room 918-E 800 Independence Avenue, S.W. Washington, DC 20591 202-267-7100 202-267-5106 (fax) michael.f.mckinley@faa.gov

### CERTIFICATE OF SERVICE I hereby certify that on this date, I have sent by U.S. certified mail, a copy ofthe foregoing motion inthe matter ofPremier Jets, Inc., FDMS No. FAA-2012-0470, Case No. 2011WP910359, to: Roger B. Kelsey President Premier Jets, Inc. 2140 NE 25'h Avenue Hillsboro, OR 97124 AND The Honorable Richard C. Goodwin,Administrative Law Judge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave., S.E., Room Ell-310 Washington, DC 20590 In addition, I hereby certify that on this date, I have sent byU.S. certified mail the original and one copy ofthe foregoing documentto: 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 2Wl000



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