### .· SERVED NOVEMBER29,2012

.

# RECEIVED

U.S. DEPARTMENTOF TRANSPORTATION 

## NOV 302012 OFFICE OF HEARINGS WASHINGTON, DC 

# HeARING DOCKE-T

In The Matter Of: · DocketNo. FAA-2012-0477

I.._.,' LIBERTY FOUNDATION, INC. ) ) ) ) ) )**r·l·~**

### · · ··.**~** ·CaseNo. 2011-GL-03-0070 ' ,., . Respondent ·:) ORDER SETTINGVENUE INATLANTA, GEORGIA

. .i.

..· I On June 21,2012, the Federal Aviation Administration (FAA) filed a Complaint charging the Respondent, Liberty Foundation, Inc., with violating three FederalAviationRegulations (FAR), i.e., 14 C.P.R.§§ 91.405(b), 91.407(a), and 91.7(a). As part ofthis Complaint filing, the FAArequestedthe hearing venue to be set inChicago, Illinois. · OnJuly 13, 2012, the Respondent filed the Respondent's Suggestion ofHearing Location, in which the Respondent objected to Chicago, Illinois as the venue location, and · recommended instead Atlanta, Georgia. On July 17, 2012, the FAA filed the Administrator's Response to Respondent's Suggestion ofHearing Location. OnJuly 18,2012,the Respondent filed the Respondent's Reply to the Administration's Opposition to Respondent's Suggestion ofHearing Location. On September 20, 2012 the parties appeared by telephone for a Rule 16 Litigation Scheduling Conference. At that time, the parties generally addressed**th~** disputed issue ofvenue. 9/20/12 TR at 27-37. The parties Were directed to file supplemental materials onorbefore October 24, 2012, and to reappear on November 2, 2012 for oral argument on the disputed issue. On September 24, 2012, an Order Setting Litigation Dates and Procedures was filed, which codified the venue deadlines orally provided at the September 20,·2012 Rule 16 Conference. On Oc;tober 23, 2012, theRespondent filed the Respondent's Supplemental Materials on the Venue Issue. On October 24,2012, the FAA filed the Administrator's Supplemental Materials onthe Disputed Veriue Issue. OnNovember 2, 2012, the parties convened by telephone for the scheduled Venue Motion Conference, and presented oral argument on the disputed venue issue. . I

### A. Legal Standards for Setting Venue While bothparties presented factual arguments in support oftheir proposed hearing venue requests, neither provided any legal authority or discussion in their materials. The Rules ofPractice, 14 C.F.R. part 13, subpart G, govern the setting ofvenue in FAA civil penalty proceedings. The authority to setthe location ofthe hearing is vested solely in the administrative lawjudge, after considering any suggestions by the parties. 14 C.F.R. § 13.221(b); See also, 55 Fed. Reg. 27548,27561 (discussion offinal rule July 3, 1990, "Location of Hearing"). In setting venue, the administrative lawjudge is not ruling for or against a party, but rather utilizingjudicial discretion in considering the factors contained in Section 13.221(b), the Administrative Procedure Act (APA), and any other factors deemed relevant ineachindividual case. 14 C.F:R.§ 13.221(b) provides inpart: The administrative lawjudgeto whom the proceedings have been assigned shall set a reasonable date, time, and location for the hearing

... The administrative lawjudge shall give due regard to the convenience ofthe parties, the location where the majority ofthe witnesses reside or work, and whether the location is servedby a scheduled air carrier. Section 554(b) ofthe Administrative Procedure Act also provides inpart: "[i]n fixing the time and place for hearings, due regard shall be had for the convenience and necessity ofthe parties." 5 U.S.C. 

### § 554(b). The Rules ofPractice under 14 C.F.R. part 13, subpart G, do not specifically define the factors involved in considering the convenience ofthe parties. Fortunately, there is ample guidance on the issue in federal caselaw. When considering the convenience ofthe parties for the purpose ofdetermining venue, many private and public interest factors may be considered. Envtl., Safety & Health ConsultingServs., Inc. ·v. Magnablend, Inc. 2012 U.S. Dist. Lexis 161940 (November 9, 2012)(both public and private factors should be considered in addressing the convenience ofthe parties); In re Volkswagon of America, Inc., 371 F.3d 201, 203 (5th Cir. May 18, 2004)(bothpublic and private factors considered); and Baicker-McKee et al., Federal Civil Rules Handbook, §2.14 (Venue) and§ 2.15 (ForumNon Conveniens)(!9th ed. 2012)(public and private factors identified and discussed). · The factors specified in 14 C.F.R. § 13.221 were intended to be "flexible enough to avoid hardship to eitherthe respondent orthe witnesses involved ina particular case." 54 Fed. Reg. 11914, 11916 (dispositi.on ofcomments Mar. 22, 1989, "Location ofHearings"). In addition, any other factors deemed relevant by the administrative lawjudge may also be considered, in order to address the needs ofthe parties, the needs ofthe witnesses involved, and to avoid hardship. 5.4 Fed. Reg. 11914, 11916 (disposition ofcomments Mar. 22, 1989, "Location ofHearings"). See, e.g:, Baicker-McKee et al., Federal Civil Rules Handbook, §2.14 (Venue) and§ 2.15 (ForumNon Conveniens)(19th ed. 2012)(Private factors in considering venue may include the following: l) ease ofaccess to evidence; (2) the cost for witnesses to attend trial; Page 2 oflO(3) theavailability ofcompulsory process; and (4) other factors that might shorten trial or make it less expensive); 

### See, also, 55 Fed. Reg: 27548, 27561 (discussion offinal rule July 3, 1990) ("Ifthe place where the incident occurred is a relevant factor

...either party is free to raise that



## . ")

. . . lSSUe...

.

. Although not required by the Rules ofPractice, in a venue dispute the parties "are encouraged to explain or support their suggested venue location so that the administrative law judge is aware ofthese considerationsatthe time ofthe [venue] determination." 55 Fed. Reg. 27548,27561 (discussion offinal rule July 3, 1990, "Location ofHearing"). 

### B. Undisputed Facts Itwas undisputed thatthe Respondent owned and operated a World War II B-17 G Boeing aircraft registered as N-390TH. On orabout February 24,2011, the Respondent performed maintenance onthis B-17 G aircraft irt the Georgia, Atlanta area. During oral argument, theFAA asserted that the Respondent had violated 14 C.F.R. 

### § 91.405(b) once on February 24, 2011 in performing**th~s** maintenance. The FAA also asserted thatthe Respondent had violated 14 C.F.R. 

### § 91.407(a) once, but did not specify in its Complaintwhere or onwhat date. After February

## 24, 2011 the Respondent flew the B-170 aircraft at least 12 ormme · times, to various parts ofthe**country~** During oral argument; the FAA assertedthat the Respondenthadviplated 14 C.F.R. 

### § 91.7(a) at least 12 ormore times after February 24, 2011. The parties agreed that the arrival/departure locations ofat least eleven (11) ormore ofthese flights were notrelevant to the issue ofvenue. · OnJune 13, 2011, the Respondent performed additional maintenance onthe B-17 G

.aircraft inthe**Chicago~** Illinois area. That same day, after the June 13, 2011 maintenance, the Respondent again operated the B-17 G ·aircraft. There was an in-flight fire onthe aircraft during the June 13; 2011 flight. This

### res~lted**i~** an emergency landing ofthe aircraft inthe Chicago, Illinois area. The aircraft was destroyed by the fire. · Itwas undisputedthat after the June 13, 2011 airplane fire and destruction ofthe aircraft, boththe FAA and theNTSB (National Safety Transportation Board) conducted investigations in the Chicago, Illinois area. At one point, the FAA also engaged inmediation discussions withthe

. Respond.ent at theFAA Regional office located in the Atlanta, Georgia area. The FAAintends to call a total offive witnesses. Three ofthese witnesses (two**expert~** and one lay witness) are located in the Chicagq, Illinois area. The other two witnesses (one expert and ohe lay witness) are located in Colorado, and New Mexico, respectively. The FAA witnesses located in Colorado andNewMexico would need to fly to the venue location, whether it was set in Chicago, Illinois or Atlanta, Georgia. · The Respondent intends to call a total ofsix (6) witnesses (all experts). Five (5) ofthe six (6) witnesses were located inthe Atlanta, Georgia area. The other witness was located in New Smyrna Beach, Florida, which was located within a four hour automobile drive from Atlanta, Georgia. 

### Page 3 oflOC. BriefDiscussion oftheParties' Primary Arguments All ofthe parties' factual arguments, both oral and written, were considered. This ·discussion focuses only on the parties' primary arguments.

1. Convenience ofthe Parties As previously noted herein, pursuant to 

### l4 C.F.R. § 13.221(b), the convenience ofthe parties is a primary factor in consideringvenue. Federal caselaw provides guidanceonthe multiple factors that may be reviewed in consiqering the convenience ofthe parties. Four (4) of those factors are discussed herein: (a) the ease ofaccess to evidence; (b) the cost ofattendance for willing witnesses; (c) other factors that might shortenthe hearing.or make itless expensive; and (d) whetherthe place where the incident occurred is a relevant factor. (a) The ease ofaccess to evidence. Most ofthe hearing evidence in this case will likely be testimonial, with some documentary exhibits introduced (e.g., aircraft logs, maintenance records, registration certificates, etc). Theparties did notnote thatany documentary evidence would be difficult to obtain, or related tothe issue ofvenue setting. It appeared undisputedthat all the identified witnesses were willing**to·t~stify.** Both parties argued for venue based on the ease ofaccess to their named live witnesses who were physically located in their preferred venue location. Ror the FAA, that meant easier access to thethree witnesses physically located in Chicago Illinois. For the Respondent, that meant easier access to its five witnesses physically located·in Atlanta Georgia. The respondent also arguedthat Atlanta, Georgiawas more easily accessible to its sixth witness as well. · In·essence, the ease ofaccess factor demonstrates that six (6) ofthe eleven (11) named witnesses ideiitified bythe parties live in or near Atlanta, Georgia. Only three (3) ofthe eleven (11) witnesses live in Chicago, Illinois. Two (2) ofthe witnesses will need totravel long distance regardless ofwhether the venue is set in Chicago or in Atlanta. Taken as a whole, ease ofaccess to the majorityoflivewitnesses is inthe Atlanta, Georgia area. (b) The cost ofattendance for willingwitnesses. The parties·filed ample material on t.he cost oftravel for their witnesses. Boththe FAA and Respondenthave argued, with supporting documentation, that itwill be expensive for them to travel to the other's proposed location. A large portion ofthatexpense comes from the cost ofattendance for witnesses. (FAA's October 24, 2012 Supplemental Materials; Respondent's ,October 23, 2012 Supplemental Materials.) As noted previously herein, the FAA plans to call five witnesses, three ofwhom are located in the Chicago, Illinois area. The FAA's two other witnesses, located in Colorado and New Mexico,**r~spectively,** will need to travel regardless ofwhether the venue is set in Chicago or Atlanta. The FAA did notdemonstrate that there was any appreciable difference in the travel costs for the two."traveling" witnesses, should venue be set in Chicago, Illinois rather than in

Page 4 of 10Atlanta, Georgia; 1 The FAA also did not assert that it would be paying any greater cost in witness time orper diem for any ofits witnesses should venue be set in Atlanta instead of Chicago. TheFAA asserted that the totalcostto transport its three Chicago basedwitnesses to Atlanta will be $3,894. (FAA's October 24, 2012 Supplemental Materials, "Total Expenses Chart") In calculating expenses, the FAA also asserted, without explanation, that these three witnesses, as well as the other two "traveling" witnesses, would all stay a minimum'offour nights and five days in Atlanta, Georgia (!d). While no doubt all the FAA witnesses are important, the entire hearing is scheduled to last only three (3) days. ·See, September 24, 2012 Order Setting Litigation Dates and Procedures. Based on general litigation history, 

### it seems highly unlikely thatthe FAA would need all five witnesses (3 expert and 21ay) to remain. in attendance after the presentation ofits own case-in-chief. Itmustbe notedthat the FAA appeared to provide the most expensive version ofwhat travel costs mightbe needed for its witnesses. Nevertheless, for purposes ofthis dispute, the**FAA~s** costs were accepted. The Respondent plans to call six witnesses, five ofwhom are located inthe Atlanta, Georgia area. The Respondent's sixth witness is located inNew SmyrnaBeach, Florida, which

. the Respondent noted was oniy a four-hour drive from Atlanta, Georgia. the travel.cost information provided by Respondent was not as detailed as the FAA's information. The Respondent is encouraged to be more detailed in the future. Fortunately, a price comparison canbemadeusing the following: a) the median airline ticketprice of$312 providedby Respondent for travel from Atlanta to Chicago (Respondent's October 23, 2012 Supplemental Materials); and b) the hotel and per diem figures provided by the FAA for its Colorado based Witness of$171 and $71 per day, respectively (FAA's October 24,2012 Supplemental Materials, "PerDiem"). ·· Applying these figures to the Respondent's six**witnesses~** using the same four night/five day schedule used by the FAA, gives a total travel cost for the Respondent of$8,106 without including any ground travel costs. 2 It should be pointed outthat this $8,106 amount does not reflectthe total expenses likt:lY to be incilrred by Respondent's New SmyrnaBeach, Florida witness. The Respondent did notprovide any data for such ground or air travel from New SmyrnaBeachto Atlanta. Given the fact thatthe Respondent would need to cover that costif the venue was set in Atlanta, it was not included. Based on the raw numerical data submittedby the parties, it**~s** clear the Respondent wouldbear the greater cost ofwilling**witne~s** travel, should the venue be set in Chicago, Illinois

. instead ofAtlanta, Georgia (i.e., $8,106 Respondentwitness travel cost to Chicago, versus $3,894 FAA witness travel cost to Athmta). The Respondent wouldpay, at minimum, $4,212 more than the FAA for travel costs ifvenue was set in Chicago. As a result, this factor weighed. in favor ofAtlanta, Georgia forvenue.

1 The FAA noted that its costto transport its Colorado and New Mexico witnesses to Atlanta weuld be $2,705. It did not identifY what cost it would need to pay totransport these two witnesses to Chicago.

. 2 The Respondenfs travel costs for six witnesses, from Atlanta to Chicago, were calculated as follows ($312 x 6 witnesses).+ (($171/night x 4 nights)

### x6 witnesses)+ (($71/day x 5 days) x 6 witnesses). No taxi or rental car costs were included in this fonnula. Page 5 of 10

### (c) Otherfactors that might shorten trial ormake it less expensive. Theparties also discussed the costoftravel for-their counseL In some circumstances,·butnot all, the·location and convenience ofcounsel has been included as a factor in the convenience ofthe parties. See, Liquor Salesmen's Union v. NLRB, 664 F.2d 1200, 1205 (D.C. Cir. 1981) (factors considered in transferring venue under 28 U.S.C. § 2112); Butsee, In re Volkswagon AG; Volkswagon 

### o.f America, Inc., 371 F.3d 201 at 203 (rejecting location and convenience ofcounsel in a convenience ofthe parties analysis under 28 U.S.C. 

### § 1404(a)).

.

.The FAA assertedthat setting venue in the Atlanta, Georgia area would create "financial challenges to the Administrator." This was because. oftheinherenttravel expenses thatwould occur ifthe FAA sent its .five witnesses. and two Chicago, Illinois FAA attorneys to the Athinta, Georgia areato litigatethe case. The.FAA then provided travel cost information for two attorneys. (FAA's.October 24,2012 Supplemental Materials). · While it is certainlythe choice ofa party to develop a litigation strategy that includes ·the use ofmultiple attorneys, such litigation choice should not automatica1ly warrant greater cost weight in the consideration ofvenue. Itwas noteworthythatthe FAA did not provide any persuasive explanation as to why two FAA attorneys were required to litigatethis civil penalty proceeding. 3 The FAA also did not explain why, ifmultiple FAA attorneys were necessary to try this case, a partnership with local FAA Atlanta counsel (which would reduce FAA Chicago counsel travel costs) would not serve equally well. As a result, consideration ofthe FAA's Chicago counsel travel expenses was based only on the cost oftravel for one 

### (1) FAA attorney. In contrast to the FAA's multiple attorney strategy,the Respondent argued that it only had one attorney, and that its' attorney was actingpro bono. 11/2112 TRat 35 (lines 20-24), 36 .(lines 7-8). Itwas undisputed that the Respondent's attorney was located in Miami, Florida, and would be required totravel in any event. However, the Respondent's attorney orally asserted · thathe plannedto personally bear the brunt ofall travel costs. The Respondent also argued

-- without submitting any documentary evidence in· support ofsuch argument

-- that as a non-profit corporation it had no funds to support any litigation costs ortravel costs. In addition, the Respondent argued that the FAA had more resources,' and could more easily bearthe financial burdens.oftravel cost. The Respondent's arguments oforganizational financial hardship were notpersuasive. As this administrative court noted during the November 2, 2012 oral argument, the fact that an organizationis incorporated as a charitable foundation does not automatically demonstrate

·institutional financial hardship, or a lack oforganizational funds. 

### In addition, the Respondent's

attorney may choose to offerpro bono servicesathis discretion to any client, for any number of reasons... Pro bono work, in and ofitself, is not determinative ofa client's financial status. Absent any proofoforganizational financial status, the Respondent's arguments of.financial

.

3 During oral argument, the FAA stated that the two Chicago attorneys had been working on the case for a total of fifteen {15) months. The FAA then explained thatthe case herein was a "separate issue" from the original case, which had been charged against the Respondent mechanic. The attorneys in Chicago had "studied" the case. 11/2/12TR at 20 (lines 14-25), 21 (lines 1-6). The FAA did not provide any further explanation as to why two attorneys were required to litigate the case herein. Page 6 oflOinability cannot be given serious weight. In addition, the argument that the FAA has a deeper pocket is notpersuasive, particularly since the Respondent chose notto provide any documentary information about the state ofits own finances. A party asserting hardship must demonstrate it through an offer ofreliable proof, as opposed to anecdotal argument.

. Taking all matters into account, the cost to the FAA for attendance ofone attorney at an Atlantahearing location would be $1,635 (FAA's October 24, 2012 Supplemental Materials) while the costto the Respondent for counsel travel would be approximately $1,545, including groundtransportation (Respondent's October 23, 2012 Supplemental Materials).4 This Respondent travel cost of$1 ,545 to Atlanta, whether borne by theRespondent orby Respondent's counsel, would be necessary in any event.

· In contrast, assuming venue in Chicago, the FAA attorney wouldhave no travel cost burden and the Respondent COlJ.IlSel's cost would be approximately $1,782, including ground transportation. 5 Thus, the Respondent's costs for travel to Chicago, instead oftravel to Atlanta, wouldresult in only an increase by an amount ofapproximately $237. Clearly, the FAA bears the greater cost ofcounsel travel (i.e., $1,545 v. $327). Nevertheless, while the convenience ofcounsel weighs in favor ofvenue in Chicago, Illinois, the overall convenience ofthe parties still weighed towards holding the hearing in Atlanta, Georgia. (d) Whether the place where the incident occurred is a relevant factor. The inquiry under this prong is whether where the alleged violations occurred is a relevarit'factor in setting venue. The FAA emphasized that on or about June 13, 2011, the B-17 G aircraft suffered an inflight fire, an emergency landing, and complete destructionjust 6 to 7miles from the Aurora, Illinois Airport in the Chicago, Illinois area. Subsequently, boththe FAA and the NTSB conducted investigations inthe Chicago, Illinois area. (July 17; 2012 FAA Response to Respondent's Suggestion o'fHearing Location). The FAA did.not assert thatthere was any physical evidence located in Chicago (e.g., the destroyed aircraft, records, etc) that would require venue to be set inthat area. The FAA also did not clearly demonstrate how much the June 13, 20i 1Chicago, Illinois events were related to the alleged 14 

### + violations in its Complaint. .Based upon a review ofall the materials and arguments, it appearedthatthe June 13, 2011 events woUld be utilized in large partto support and lend credence to the FAA's allegation that the Respondent failed to comply with FAA maintenance and operation requirements. Itappeared undisputed that neither Chicago, Illinois nor Atlanta, Georgiawas the "place where the incident occurred" for a majority ofthe alleged violations herein.

4Respondent's cost= $338 median airfare+ $455 hotel+$252 per diem+ $150 hotel parking+ $300 car rental+ $ 50 carry-on luggage fee 5 Respondent's cost= $487 median airfare+ $640 hotel+ $355 per aiem + $300 car rental _Page 7 of 10Therecord shows thatthe FAA is alleging that the Respondent committed one violation of 14 C.F.R. 

### § 91.405(b) (regarding the maintenance ofthe aircraft) onor about February 24, 2011 in ornear Atlanta, Georgia (11/2/12 TR at 6, lines 5-6; and at 14, lines 7-23). The FAA also alleges one violation of 14 C.F.R. 

### §91.407(a), which concerned the operation ofthe aircraft its unauthorizedreturn to service, and deficient record entry following the February 24, 2011 maintenance in Georgia, Atlanta. (11/2/12 TR at 14 (lines 24-25) and 15 (lines 1-6); FAA Compl. 4,**~).** Additionally, the FAAis alleging "at least" 12 violations of 14 C.F.R. 

### § 9t.7(a) concerning the operation ofthe aircraft whenthe FAA alleges the aircraft was not airworthy. The parties agreed, however, thatthe arrival/departure locations of 11 ofthese 12 or more flights were not relevantto the issue ofvenue. Only one ofthese flights, the flight that ended inthe destruction ofthe aircraft on or about June 13, 2011, was alleged to have taken place in Chicago. (1112/12 TR at 15 (lines 14-18), and 16 (lines 11-21; Compl. 4,**~17;** Answer 2,**~17).** Taken as a whole, Chicago and Atlanta were each identified, respectively, as a "place of incident" fortwo ofthe 14 or more alleged violations. It was noteworthythat neither party argued that venue in one location as opposed to the other would prevent its attendance at the hearing or violate its due process rights. 

### See, Gerald W Keller, FAA-2006-25869 (Dec. 5, 2006) (Order Setting Venue for Hearing) (venue set in Atlanta because "the scheduling ofa hearing in Milwaukee means that there will be no hearing at all

..."). In addition, the FAA also

. acknowledged during oral argument that in an earlier meeting ofthe parties in the case herein, the parties had met in the Atlanta, Georgia area. Given consideration to all the facts, this factor appeared to be weighted equally for both venue locations.

2. Location ofthe Witnesses Pursuantto 14 C.F.R. 

### § 13.221(b), another primary factor for consideration in setting venue is the location··where the majority ofthe witnesses reside or work. This factor has already been discussed in detail, 

### supra. In essence, there are three (3) witnesses located in Chicago, Illinois, one (1) witness located in NewMexico, one (1) witness located in Colorado, five (5) witnesses located in Atlanta, Georgia, and one_(1) witness locatedinNew Smyrna Beach, Florida. Inthis case there was no location·in which a majority (i.e., 6) ofthe witnesses lived or worked. However, the clearplurality (i.e., 5) ofthe 11 witnesses resided in the Atlanta, Georgia area. Thus, this factor weighs in favor ofAtlanta, Georgia for the setting ofvenue. 1 3. Service by a Scheduled Air Carrier Pursuant to 14 C.F.R. 

### § 13.22l(b), another primary factor for consideration in setting venue is whether an area is serviced by a scheduled air carrier. Both parties agreed that a scheduled air carrier provided service to both Atlanta, Georgia and Chicago, Illinois. Thus, this factor weighed equally for both venue locations.

Page 8 of 104. OtherAlleged Factors The FAA alleged that setting venue in Atlanta, Georgia would potentially prejudice the FAA's ability to adequately and knowledgably litigate the issues in the case. The FAA asserted. that this prejudice might arise should the FAA management choose to transfer the case litigation to FAA attorneys in Atlanta, Georgia, rather than pay the cost for one orboth ofthe FAA Chicago attorneys to.travel. According to the FAA, such an elective management transfer ofthe case litigation to FAA attorneys in Georgia could result in a loss ofattorney expertise, since the substitute FAA counsel would not be as familiar with the complexities ofthe case. (July 17, 2012 FAA Response to Respondent's Suggestion ofHearing Location;·11/2/12 TR at 22 (lines 1- 19), 23 (lines 12-25), 24 (lines 1-5)). · In order to showprejudice the FAA must first prove that the event causing the prejudice (I.e. the transfer ofthe case to different FAA office), will occur, and that the FAA should be deemed to suffer prejudice by that elective event. The FAA did not provide proofofeither factor. Instead, the FAA has only argued that it is possible that the case might be transferred to the FAA's Southern**R~gion** Office ifvenue was· set in Atlanta, Georgia, andthat it was possible that the representation might suffer as a result (11/2/.12 TRat 22 (lines 9-10) and 24 (lines 3-5). Itwas noteworthy that the FAA did notassert that its FAA attorney employees located in Atlanta, Georgia were unable to handle complex litigation, orthat such AtlantaFAA attorneys were not as highly competent as its FAA attorney staffworking in the Chicago, Illinois area. The FAA simply arguedthatFAA counsel in Atlanta would not be as familiar with the case. There is no doubt that a newly assigned attorney would need to acquainthim orherself with the case. However, case re-assignment is riot a foreign concept or rare occurrence in.the legal commtinity. It should be noted that inmany public agencies and private lawfirms throughout the country, attorneys are routinely reassigned cases set for litigation for a wide variety ofreasons, without any loss ofquality representation. The FAA has failed to make a compelling argument that an alleged loss ofquality litigation might occur inthis case (ifat all) ifthe case .was reassigned to AtlantaFAA counsel. In addition, the FAAhas also not demonstrated prejudice. IfF AA management chooses to reassign litigation ofthis case to another attorney, this decision is an elective decision. It must be presumed that management makes such a decision only after fully considering the consequences to the presentation ofits case-in-chief. Case assignments or reassignments are a management prerogative, and should be deemed 

### ari internal litigation strategy choice by a

### party absent strong contrary proof. Taken as a whole, the FAA's argument ofpotential prejudice is not persuasive. The ·FAA's argument of"prejudice" was not given weight as a relevant factor in considering the setting ofvenue.

Page 9 of 10 ·

### D. Conclusion Having reviewed the case file, all pleadings and motions, all relevant caselaw, statutes, regulations,.rules, I;Uld authority, and being fully advised;



### IT IS HEREBY ORDERED: 

### 1. Pursuantto 

### 5U.S.C. 

### § 554(b), 14 C.F.R. 

### § 13.22l(b), and all relevant caselaw and authority, venue in this matter is set in Atlanta, Georgia. 2. The specific location ofthe Hearing in Atlanta, Georgia will be provided to the parties prior to the Hearing.

Attachment: Service List

Page 10 of 10.

# .

SERVICE LIST- BY 

### U.S. MAIL ORIGINAL & ONE COPY 

### Federal Aviation Administration1 

### 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2Wl000

Ms. Adrianne Wojcik, Esq. Complainant's Counsel 

### Office ofthe Regional Counsel Great Lakes Region, AGL-7 Federal Aviation Administration 2300 East Devon Avenue Des Plaines, 

### IL 60018-4696 TEL: 847-294-7109 FAX: 847-294-7498 Mr.' Stuart A. Goldstein, Esq. Respondent's Counsel 

### StuartA. Goldstein, P.A. 9350 South Dixie Highway, lOth Floor Miami, FL 33156 TEL: 305-670-1222 FAX: 305-670,;7065 Judge J.E. Sullivan U. S. Administrative LawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200

### New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2132 FAX: 202-366-7536 ONE COPY 

### FDMS No. FAA-2012-0477 (Civil Penalty Action)

.

1 Service was by U.S. Mail. For service in person or by expedited courier, use the foJiowingaddress: Federa1· Aviation Administration, 600 Independence Avenue, S.W.,Wilbur Wright Building-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.