In The Matter Of: 

SERVED: March 13, 2017 

DEPARTMENT OF TRANSPORTATIO~I 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

1111 HAR 1 5 p 4: lJ l 

DOCKET OPERATIONS 

Docket No. FAA-2015-0639 

Kenneth Ray Rumberger 

) 

) 

) 

) 

Respondent ) 

Case No. 2015WP270015 

ORDER OF DISMISSAL DUE TO 

RESPONDENT'S CONSTRUCTIVE WITHDRAWAL 

On AprilS, 2015, the Respondent requested a hearing to resolve this matter. 

On April22, 2015, the Complainant filed a timely complaint as required by 14 C.F.R. 

§ 13.208. The Respondent failed to submit an answer (or a written motion to dismiss the 

complaint) within 30 days of service ofthe complaint as required by 14 C.F.R. § 13.209. 

On June 23, 2015, the Complainant served its first set of discovery upon the Respondent. 

After the Respondent failed to provide a response, the Complainant filed a Motion to Compel 

Answers to Complainant's First Discovery Request on August 20, 2015. 

On March 21, 2016, the above captioned case was reassigned to the undersigned judge. 

On April 6, 2016, the undersigned judge issued an Order Directing the Parties to Meet and 

Confer Regarding Litigation and Scheduling Issues ("Meet and Confer Order"). The order 

required, inter alia, the parties to submit a joint report to the undersigned judge within 30 days of 

that order. Neither the Complainant nor the prose Respondent1 submitted a report or request for 

additional time before that deadline. 

On May 17, 2016, the undersigned judge issued an Order to Show Cause and Provide 

Requested Information ("Show Cause Order"). The order required the parties to explain the 

cause of their failure to comply with the Meet and Confer Order and provide the information 

requested in that same order by June 1, 2016. The order stated that "i[f] a party fails to file this 

1 In a letter dated March 23, 2016, Respondent's counsel, Negar Pirzadeh, submitted a notice of disassociation of 

counsel of record for the Respondent, effective July 2015. After receipt of this letter, all documents served by the 

undersigned judge and the Complainant were sent to the Respondent directly at his 2451 Church Lane, SPC 38, 

San Pablo, CA 94806 address. 
statement by the above deadline, the undersigned judge may issue a subsequent order finding the 

non-responsive party has constructively withdrawn from these proceedings and, pursuant to 

14 C.F.R. § 13.215, dismiss the case with prejudice."2 

On May 27, 2016, the Complainant filed a statement explaining that the parties had yet to 

meet despite the Complainant's repeated efforts to reach the prose Respondent by telephone. 

The prose Respondent failed to respond to the May 17, 2016 Show Cause Order. 

On June 29, 2016, the undersigned judge held a prehearing conference, During the 

conference, the parties agreed to meet and submit a joint report by July 29, 2016, and were 

reminded of the need to comply with the undersigned judge's future orders. 

On August 1, 2016, the Complainant submitted a draft joint status report that was unsigned 

or agreed to by the prose Respondent, despite the Respondent's receipt of the report on July 27, 

2016. 

On August 12, 2016, the prose Respondent submitted a three-page letter with attached 

exhibits; this submission was non-responsive to the undersigned judge's request at the prehearing 

conference. Within the letter, however, the pro se Respondent for the first time moved to 

dismiss the complaint. 3 

On August 29, 2016, the undersigned judge issued an Order to Show Cause directing the pro 

se Respondent to file a written statement explaining the cause for his untimely motion no later 

than October 3, 2016. The prose Respondent submitted a timely response. 

On November 18, 2016, the undersigned judge denied the prose Respondent's motion and 

directed him to file a written answer, in compliance with 14 C.F .R. § 13 .209( e), by November 

28, 2016. The prose Respondent failed to file an answer. 

On January 17, 2017, the undersigned judge held a second prehearing conference. The 

undersigned judge walked through the process of drafting an answer and directed the pro se 

Respondent to file an answer by January 20, 2017. Further, the undersigned judge directed the 

parties to file any discovery requests by January 31, 2017. 4 The parties were also required to 

respond to any filed discovery requests by February 28, 2017. 

2 May 17, 2016 Show Cause Order at 2. 3 The prose Respondent requested that the undersigned judge "dismiss all civil penalties against me at this time." 

Mot. Dismiss at 2. 4 During the prehearing conference, the undersigned judge addressed the prose Respondent's concern regarding 

outstanding discovery raised in his motion to dismiss. After walking through the process of filing a discovery 
The pro se Respondent has yet to file an answer. Further, despite stating that he required 

additional discovery from the Complainant, the pro se Respondent did not file any requests for 

discovery. Additionally, the prose Respondent failed to respond to the Complainant's timely 

January 31, 2017 discovery request. 

Discussion 

The Respondent has had minimal participation in these proceedings. While the Respondent 

requested a hearing, filed two documents related to his motion to dismiss, and appeared at both 

prehearing conferences, he has failed to comply with multiple orders. 

During a January 17, 2017 prehearing conference, which was scheduled to discuss the 

Respondent's failure to file an answer, the undersigned judge reiterated the importance of the 

Respondent's participation in the proceedings. 5 After discussing in detail the requirements of a 

sufficient answer, 6 the undersigned judge asked the Respondent how long he needed to prepare 

such a document, to which the Respondent replied "[t]wo days."7 Based upon the January 17, 

2017 date of the prehearing conference, the undersigned judge confirmed that the Respondent 

would have his answer in the mail by January 20, 2017.8 At the end of the prehearing 

conference, the undersigned judge again confirmed that the Respondent understood the January 

20, 2017 deadline to file a sufficient answer.9 This deadline was then confirmed in writing in a 

January 18, 2017 pre hearing conference report that was both mailed and emailed to the 

Respondent. 10 

request, the undersigned judge directed both parties to file any discovery requests upon the opposing party by 

January 31, 2017. See January 17, 2017 Transcript at 15-19. 

5 The undersigned judge stated, "[w]e discussed previously ... that to not respond at all would be the wrong course 

of action." I d at 5. After reemphasizing that the most "incorrect thing to do was to ignore me," the undersigned 

judge noted that the service list contained on every document served in this case, contains contact information for 

the Office ofHearings, as well as Complainant's counsel. See id at 8-9. 6 See id at 11 7 See id at 12. 8 The undersigned judge explained the Respondent's answer, "must be postmarked January 20th,, to which the 

Respondent replied "[c]ertainly." /d. at 13. To eliminate any potential confusion for the prose Respondent, the 

undersigned judge clarified, "[s]o y'ou, sir, will draft your answer and put it in the mail to me by this Friday, January 

20th," to which the Respondent answered"[ o ]f course." Jd 

9 The Respondent replied "[m]m-hmm" after the undersigned judge asked "[a]nd do you understand what you need 

to be doing is that by filing your written answer no later than this Friday, which can be very simple for you, 

admitting or denying all the paragraphs of the complaint ... " Id at 25. 10 To ensure the Respondent received the prehearing conference report in a timely manner, it was emailed to the 

email address the Respondent provided during the preheaTing conference, and he was advised to check that email. 

See id at 26-27. 
The Respondent has failed to participate in several other aspects of this case, including 

failing to comply with the undersigned judge's Meet and Confer Order and the May 17, 2016 

Show Cause Order. The Respondent has also failed to respond to the Complainant's discovery 

requests. 

Applicable Law 

Among other reasons, a Respondent may be deemed to have constructively withdrawn a 

request for a hearing if the Respondent fails to respond to a judge's orders 11 or is silent. 12 

Additionally, if a Respondent fails to respond to documents sent to them by the ALJ or the 

Complainant, then such failure shall be construed as an abandonment of the hearing process. 13 

Pursuant to 14 C.F.R. § 13.215, a party may withdraw a request for a hearing without the 

consent of the administrative law judge at any time before or during a hearing. Upon such 

withdrawal, the administrative law judge shall dismiss the case with prejudice. 

Therefore, based upon a review of the record, and consideration of the applicable statutes, 

regulations, and case law, IT IS HEREBY FOUND: 

I. The Respondent submitted a request for hearing in this matter on April 8, 2015. 

2. The Respondent has been served all relevant filings. 

3. The Respondent failed to respond to the Complainant's initial discovery request. 

4. The Respondent failed to comply with, or respond to, the Meet and Confer Order. 

5. The Respondent was advised in the May 17, 2016 Show Cause Order that further 

failure to participate in the proceedings may be deemed a constructive withdrawal of 

the request for hearing. 

6. The Respondent failed to respond to the May 17, 2016 Show Cause Order. 

7. The Respondent failed to file an answer by November 28, 2016, despite being 

ordered to do so on November 18,2016. 

1l In re Blankson, Docket No. CP97EA0024 (Order Assessing Civil Penalty, Sep. 11, 1997) (ALJ found failure to 

respond to previous orders constituted constructive withdrawal), aff'd, FAA Order No. 1998-21 (Order Dismissing 

or Alternatively Denying the Appeal, Oct. 9, 1998). 12 See, e.g., In re IAL Power Supply, Docket No. CPOIS00015 (Initial Decision, Aug. 7, 2001) (ALJ construed 

Respondent's silence as a constructive withdrawal of request for a hearing), appeal dismissed, FAA Order No. 2002-

10 (Decision and Order, Apr. 17, 2002); In re McDermott, FAA Order No. 1999-8 at 1 (Order Denying Appeal, 

Aug. 31, 1999); In re Pierre, FAA Order No. 2001-8 at 5 (Order Denying Appeal, May 16, 200 I). 13 In re Nissen, FAA Order No. 2005-15 at 5 (Order, Dec. 15, 2005). 
8. The Respondent failed to file an answer by January 20,2017, despite being ordered to 

do so on January 17, 2017. 

9. The Respondent failed to file a discovery request by January 31, 2017, despite 

previously claiming he required additional discovery. 

10. The Respondent failed to respond to the Complainant's January 31,2017 discovery 

request by·February 28, 2017, despite being ordered to do so. 

11. The Respondent's failure to participate fully in the proceedings in this case, in 

particular his failure to file an answer despite repeated orders to do so, constitutes a 

constructive withdrawal of the Respondent's request for hearing. 

AND ORDERED that, pursuant to 14 C.P.R.§ 13.215, these proceedings are dismissed with 

prejudice. 14 

Administrative 

~ALD Law Judge 

Attachment: Service List 

14 The case now reverts to the Final Notice of Proposed Civil Penalty stage. See In re Apollo A & HS Co., FAA 

Order No. 2011-4 at 4-5 (Decision and Order, Jan. I4, 20 II). Should either party wish to appeal this decision, they 

are instructed to file a notice of appeal with the FAA decisionm.aker no later than I 0 days from the service of this 

order. See I4 C.F.R. § 13.233(a). The party must also file the notice of appeal with the FAA Hearing Docket using 

the appropriate address listed in 14 C.F.R. § 13.2IO(a). Finally, the party must perfect their appeal by filing, not 

later than 50 days from service of this order, an appeal brief with the FAA decisionmaker. See 14 C.F.R. 

§ 13.233(c). 
SERVICE LIST -BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 0001 15 

Kenneth Ray Rumberger, Respondent 

2451 Church Lane, SPC 38 

San Pablo, CA 94806-5945 

TEL: 510-234-1750 

Email: kennethrumberger@gmail.com 

Lisa Toscano, Complainant's Counsel 

Enforcement Division, Western Team 

Federal Aviation Administration 

P. 0. Box 92007 

Los Angeles, CA 90009-2007 

TEL: 310-725-7110 

F}L[: 310-725-6816 

ONE COPY 

The Honorable Douglas M. Rawald, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

F}L[: 202-366-7536 

Docket No. FAA-2015-0639 

(Civil Penalty Action) 

15 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.