U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

LITIGATION SCHEDULING CONFERENCE 

IN THE MATTER OF: 

FEDERAL AVIATION 

ADMINISTRATION 

COMPLAINANT, 

v. 

EMPIRE FLIGHT ACADEMY, 

RESPONDENT. 

Thursday 

August 9, 2012 

FAA No. 

CP10EA0004 

FDMS NO. 

FAA-2011-0290 

Via Teleconference 

The above-entitled matter came on 

for hearing, pursuant to notice, at 11:00 a.m. 

BEFORE: THE HONORABLE J.E. SULLIVAN, 

U.S. ADMINISTRATIVE LAW JUDGE 

RECEIVED 

AUG 2 2 2012 

HEARING DOCKET 

NEAL R. GROSS 

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APPEARANCES: 

On Behalf of the Complainant: 

ZACHARY M. BERMAN, ESQ. 

of: Office of the Regional Counsel, 

AEA-7 

Eastern Region 

Federal Aviation Administration 

1 Aviation Plaza, Room 561 

Jamaica, NY 11434 

(718) 553-3258 

On Behalf of the Respondent: 

GREGORY S. WINTON, ESQ. 

of: The Aviation Law Firm 

One Research Court 

Suite 450 

Rockville, MD 20850 

(301) 294-8550 

ALSO PRESENT: 

John Zaremba 

Priya Krishna 

NEAL R. GROSS 

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

2 (11:00 a.m.) 

3 JUDGE SULLIVAN: We're on the 

4 record in the matter of Empire Flight Academy. 

5 This is Docket Number FAA-2011-0290. Today is 

6 Thursday, August 9, 2 012, and the parties have 

7 convened by telephone for a pre-hearing status 

8 conference. 

9 The FAA is represented by its 

10 attorney of record, Zachary M. Berman. The 

11 Empire Flight Academy is represented pro se by 

12 an owner, John Zaremba. Good morning to 

13 everyone. 

14 I'll note that this matter was 

15 originally scheduled for 2:00 p.m. Eastern 

16 Standard Time. We have convened as of 11:00 

17 a.m. Eastern Standard Time by request of Mr. 

18 Berman and by agreement of the parties. 

19 So let's talk a little bit about 

20 the status of this case. This telephone 

21 conference, as you all know, was set up during 

22 our CR 16 second litigation conference that 

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1 was held on March 22, 2012. 

2 An Order setting new litigation 

3 dates and procedures was served on the parties 

4 on March 23, 2012. 

5 This essentially codified and 

6 supplemented the oral rulings that were issued 

7 on March 22, 2012, when the parties appears 

8 for the litigation scheduling conference. 

9 In essence, this conference was 

10 scheduled at that time for the purposes of 

11 either oral argument on dispositive motions 

12 or, if no dispositive motions were filed, as 

13 a pre-hearing status conference. 

14 No dispositive motions were filed, 

15 as you both know, and so we're convened today 

16 to talk about the status of the case. 

17 And I'm going to start with you 

18 first, Mr. Berman, because essentially on 

19 March 14, 2012, we also convened by telephone 

20 to address the Respondent attorney's motion to 

21 withdraw and, at that time, Mr. Zaremba 

22 appeared and took over representation for 

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1 Empire Flight Academy. 

2 In addition, at that time, there 

3 was some discussion between the parties about 

4 continuing settlement discussions. 

5 And Mr. Zaremba indicated that he 

6 would make the company's accountant available 

7 to you, Mr. Berman, for private discussions. 

8 Have you pursued that particular line of 

9 inquiry? Is that all finished? 

10 MR. BERMAN: Well, I didn't assume 

11 that he would provide me the financial 

12 records. I wouldn't need to speak to his 

13 accountant. 

14 But Mr. Zaremba did provide me 

15 with financial records that I requested. It's 

16 been a while, I must admit, like a week ago. 

17 I haven't gotten to it but we're 

18 in the process of reviewing the financial 

19 information for purposes of determining 

2 0 whether we' d be willing to, you know, see how 

21 much we'd settle for in terms of a civil 

22 penalty. 

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1 So we are in the process of 

2 reviewing it. He's provided everything that 

3 we've requested. 

4 JUDGE SULLIVAN: Okay, and how 

5 long do you think that's going to take you? 

6 Because we currently have a hearing scheduled 

7 for October 16, 2012, for three days in the 

8 New York City area and we also have September 

9 12, 2012, as the deadline for pre-hearing 

10 briefs. 

11 MR. BERMAN: About a week or two. 

12 I'd say it should take a week or two before we 

13 make a decision or still have it proceed in 

14 terms of settlement. 

15 JUDGE SULLIVAN: Okay. Let me 

16 turn to you, Mr. Zaremba. According to the 

17 March 23, 2012, Order setting litigation dates 

18 and procedures, you had a deadline of July 1, 

19 2012, to file your witness list and exchange 

20 your evidentiary exhibits with Mr. Berman in 

21 preparation for trial. 

22 Mr. Berman filed all of his 

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1 materials. You didn't file anything. Why is 

2 that? 

3 MR. ZAREMBA: I was really in the 

4 firm belief that submitting the paperwork that 

5 I did, the financials of the company, a couple 

6 of months ago that we were going to resolve it 

7 well before that. 

8 JUDGE SULLIVAN: Okay. 

9 MR. ZAREMBA: Hello? Did I lose 

10 you? 

11 JUDGE SULLIVAN: No, you didn't. 

12 I'm making a --

13 (Crosstalk) 

14 JUDGE SULLIVAN: Thank you. So 

15 let me ask you this, Mr. Zaremba. Are you 

16 prepared to file that information soon if, in 

17 fact, Mr. Berman reviews your financial 

18 information and either, A, provides a 

19 settlement offer that you cannot accept or, B, 

20 chooses not to provide any settlement offer, 

21 leaving you with a trial on your hands? 

22 MR . ZAREMBA: No I'm not, Your 

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1 Honor. 

2 JUDGE SULLIVAN: Okay. Well, you 

3 need to catch up because 

4 MR. ZAREMBA: Yes. 

5 JUDGE SULLIVAN: settlement 

6 occurs concurrently with trial preparations 

7 and one can never guarantee that settlement 

8 will occur. 

9 So what I'm going to suggest is 

10 this. Mr. Berman, I would like you to give me 

11 a due date for when you can finish reviewing 

12 the financial records and respond to Mr. 

13 Zaremba. 

14 And then once I get a due date 

15 from you, I can set up a new deadline for Mr. 

16 Zaremba to file his witness list and 

17 evidentiary exchange materials. 

18 And then I may also, depending on 

19 the parties' preferences, set up a second pre20 hearing status conference prior to the trial 

21 just to keep everybody on track. 

22 So, Mr. Berman, how much time 

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1 reasonably do you think you need, looking at 

2 your own calendar, to finish the review of the 

3 financial records you've received? 

4 MR. BERMAN: Well, I need to allow 

5 time for discussion with management in my 

6 office. I'm going on vacation the week of 

7 August 2 0 through 2 7. Would it be too much to 

8 ask until the end of the month, August 31? 

9 JUDGE SULLIVAN: Let me turn to 

10 Mr. Zaremba. Mr. Zaremba, Mr. Berman is 

11 suggesting an August 31 due date for 

12 discussing potential settlement with you. 

13 If settlement does not work, then 

14 that means after, say, August 31 I'm going to 

15 be looking at giving you a new deadline for 

16 serving Mr. Berman and this Court with a list 

17 of your witnesses and a copy of any of your 

18 exhibits. 

19 So we had a due date of September 

20 12, 2012, for filing pre-hearing briefs. I 

21 can tweak that due date a little bit so that 

22 you folks aren't overburdened with too many 

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1 fast deadlines. 

2 What would your position be, Mr. 

3 Zaremba, about a September 12, 2012, deadline 

4 for you to file your witness list and e~hibit 

5 list and documents and then moving the pre6 hearing brief deadline out a little farther 

7 beyond September 12, 2012? 

8 MR. ZAREMBA: I think that would 

9 be reasonable, Your Honor. 

10 JUDGE SULLIVAN: Mr. Berman, would 

11 that be acceptable to you as well? 

12 MR. BERMAN: Yes. 

13 JUDGE SULLIVAN: Okay, then what 

14 we're going to do is I'm going to accept Mr. 

15 Berman's request for an August 31, 2012, 

16 deadline to not only review the documents that 

17 he has in his possession but also to discuss 

18 with his colleagues and then talk further with 

19 Mr. Zaremba about it. 

20 And then, Mr. Zaremba, I'm going 

21 to extend your July 1, 2012, deadline for 

22 filing witness lists and evidentiary materials 

NEAL R. GROSS 

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to September 12, 2012. 

And then I will also extend the 

September 12, 2012, deadline for submitting 

pre-hearing briefs. And I will look at my 

calendar for just a moment. I'm going to set 

that out until September 26, which is two 

weeks beyond September 12, 2012. 

And then, because the hearing lS 

currently set for the week of October 16, I 

think it would be advisable then to have a 

final pre-hearing conference set for the week 

of October 1. 

Actually if we could actually 

maybe do it even the week of September 24, 

that would probably be helpful. Mr. Berman, 

what's your availability on September 27, 

2012, if at all? 

MR. BERMAN: Let me just check my 

calendar here. That should work, yes. 

JUDGE SULLIVAN: Okay. Mr. 

Zaremba, do you have any blackout times during 

the day of Thursday, September 27, 2012, that 

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1 would prevent you from attending a telephone 

2 conference? 

3 MR . ZAREMBA: I'm available any 

4 time after 10:00 a.m. 

5 JUDGE SULLIVAN: Okay, then let's 

6 try for 1:30 in the afternoon on Thursday, 

7 September 27, 2012, for a final pre-hearing 

8 status conference. 

9 And I will send out an Order 

10 regarding these new deadlines so that you have 

11 them in writing. 

12 Mr. Berman, is there anything else 

13 we can address for you or your client today? 

14 MR. BERMAN: No, no thank you. 

15 JUDGE SULLIVAN: Okay. And, Mr. 

16 Zaremba, do you have any questions about how 

17 to put together a witness list or your 

18 exhibits since you are a pro se litigant? Do 

19 you have any questions about how to do that or 

20 what that means? 

21 MR. ZAREMBA: I understand what it 

22 means and I may have some questions from when 

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1 I get the data lined up. At the moment, no. 

2 JUDGE SULLIVAN: Okay. What I'm 

3 going to do is I'm going to give you the name 

4 of the attorney who is assigned to help on 

5 this particular case ln my office. I'll put 

6 his name and phone number in the Order that I 

7 send to both of you. 

8 He can't give either of you 

9 advice, but he can answer some simple 

10 procedural questions if you have them. So his 

11 name is Cody L. Smith, S-M-I-T-H. 

12 And I'll put his phone number into 

13 the Court Order so if you have some questions 

14 that you can't figure out you can call him and 

15 he may be able to help you. 

16 But he cannot act as your 

17 attorney, Mr. Zaremba, he can't give you 

18 advice and he can't advocate for you, just so 

19 that you're aware of that. 

20 MR. ZAREMBA: I am, Your Honor. 

21 JUDGE SULLIVAN: Okay, and then 

22 for the pre-hearing briefs Mr. Berman, I 

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1 believe, has already filed his pre-hearing 

2 brief and that was filed with this office on 

3 May 3, 2012, and you can take a look at it and 

4 see an example of what a pre-hearing brief can 

5 look like. 

6 This particular pre-hearing brief 

7 is fairly specific about different issues. 

8 You don't have to do it exactly the way that 

9 Mr. Berman has done it, but it's a good 

10 example. 

11 In addition, Mr. Zaremba, just so 

12 that you know, and you may already know this 

13 from the time that you spoke with your 

14 attorney before he withdrew, on November 21, 

15 2011, we had our first CR 16 conference. 

16 And at that time, your attorney 

17 said that he would provide all the needed 

18 legal authority to this Court for the 

19 Respondent's affirmative defense, that an 

20 independent mechanic hired by Glass Cockpit 

21 Aviation was solely liable for the maintenance 

22 problems that are asserted in this case. 

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1 So in your legal brief that is now 

2 due on September 12, 2 012, you want to try and 

3 address that as part of your legal brief if 

4 you still maintain that you have an 

5 affirmative defense that somebody else is 

6 completely liable and you're not essentially. 

7 If you don't pursue that 

8 particular affirmative defense, then obviously 

9 you wouldn't need to provide argument ln 

10 support of it. 

11 So just so that we're all clear, 

12 you folks are free to continue your settlement 

13 discussion. That's not my business. 

14 But I will be sending out an Order 

15 amending the March 23, 2012, litigation 

16 schedule so that we're back on track with 

17 everybody responding to litigation deadlines 

18 just in case settlement does not work out. 

19 So, Mr. Zaremba, anything else 

20 that we can address for you on behalf of your 

21 client today? 

22 MR. ZAREMBA: Just one question, 

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1 Your Honor. You said on the brief it was 

2 September 12. I thought originally it was 

3 September 26. 

4 JUDGE SULLIVAN: Oh, I'm so sorry. 

5 You're absolutely right. I'm trying to read 

6 too many papers at one time. Let me correct 

7 that. 

8 The Respondent's witness list and 

9 exhibits are due on September 12, 2012. The 

10 parties' pre-hearing briefs are due on 

11 September 26, 2012. 

12 I'll simply note that I've already 

13 received the FAA's pre-hearing brief that was 

14 filed with this office on May 3, 2012. 

15 So essentially, Mr. Zaremba, these 

16 two dates are for you because Mr. Berman has 

17 filed his witness list, his exhibits and his 

18 pre-hearing brief already, okay? 

19 MR. ZAREMBA: Yes. 

20 JUDGE SULLIVAN: Yes, thank you 

21 for correcting me. Your pre-hearing brief is 

22 not due until September 26, 2012, and I will 

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1 be talking to both of you for our last 

2 telephone conference on Thursday, September 

3 27, 2012, at 1:30 if the case has not settled. 

4 Okay, Mr. Berman, I added some 

5 information since I last asked you. Anything 

6 else we need to add or correct for the record 

7 for your client? 

8 MR. BERMAN: No. 

9 JUDGE SULLIVAN: And, Mr. Zaremba, 

10 anything else we need to add or correct or 

11 discuss on behalf of your client? 

12 MR. ZAREMBA: No, Your Honor. 

13 JUDGE SULLIVAN: Okay, thank you 

14 both for your presence today and for your 

15 willingness to be flexible about the time. 

16 It appears our business is 

17 complete. Good luck with your settlement 

18 negotiations. With that, we can go off the 

19 record and I wish you all a good day. 

20 (Whereupon, the litigation 

21 scheduling teleconference ln the above22 entitled matter was concluded at 11:18 a.m.) 

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202-234-4433 

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Neal R. Gross & Co., Inc. 

202-234-4433 

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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: FAA v. Empire Flight Academy 

Before: us DOT 

Date: 08-09-12 

Place: Teleconference 

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 

1>23 RHODE ISLAND AVE .. N.W. 

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