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. OnApril22, 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 ofservice ofthe complaint as required by 14 C.F.R. § 13.209. On June 23, 2015, the Complainant served its first set ofdiscovery 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. OnMarch 21, 2016, the above captioned case was reassigned to the undersignedjudge. OnApril 6, 2016, the undersignedjudge 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 ajointreport to the undersignedjudge within 30 days of that order. Neither the Complainant nor the

### prose Respondent 1 submitted a report orrequest for additional time before that deadline. On May 17, 2016, the undersignedjudge issued an Order to Show Cause and Provide Requested Information ("Show Cause Order"). The order required the parties to explainthe

cause oftheir failure to comply with the Meet and Confer Order and provide the information requested inthat 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 ofdisassociation of counsel ofrecord for the Respondent, effective July 2015. After receipt ofthis letter, all documents served bythe undersignedjudge and the Complainant were sent to the Respondent directly at his 2451 Church Lane, SPC 38, San Pablo, CA 94806 address.statement bythe above deadline, the undersignedjudge may issue a subsequent order finding the non-responsive party has constructively withdrawn from these proceedings and, pursuantto 14 C.F.R. 

### § 13.215, dismiss the case with prejudice."2 On May 27, 2016, the Complainant filed a statement explaining thatthe 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 undersignedjudgeheld a prehearing conference, During the conference, the parties agreed to meet and submit ajointreport byJuly 29, 2016, and were reminded ofthe need to comply with the undersignedjudge's future orders. OnAugust 1, 2016, the Complainant submitted a draftjoint status report that was unsigned

or agreed to by the

### prose Respondent, despite the Respondent's receipt ofthe report onJuly 27, 2016. OnAugust 12, 2016, the

### prose Respondent submitted a three-page letterwith attached exhibits; this submission was non-responsive to the undersignedjudge's request at the prehearing conference. Withinthe letter, however, the

### pro se Respondent for the first time moved to dismiss the complaint.3 OnAugust 29, 2016, the undersignedjudge 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. OnNovember 18, 2016, the undersignedjudge denied the

### prose Respondent's motion and directed 

### him to file a written answer, in compliance with 14 C.F.R. 

### § 13.209(e), byNovember 28, 2016. The

### prose Respondent failed to file an answer. OnJanuary 17, 2017, the undersignedjudgeheld a second prehearing conference. The undersignedjudge walked through the process ofdrafting an answer and directed the

### pro se Respondent to file an answer by January 20, 2017. Further, the undersignedjudge directed the parties to file any discovery requests byJanuary 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 TheproseRespondent requested that the undersignedjudge "dismiss all civil penalties against me atthis time." Mot. Dismiss at 2. 4 During the prehearing conference, the undersignedjudge addressed theproseRespondent's concern regarding outstanding discovery raised in his motion to dismiss. After walking through the process offiling a discoveryThe

### pro se Respondent has yet to file an answer. Further, despite stating thathe 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 withmultiple orders. During a January 17, 2017 prehearing conference, which was scheduled to discuss the Respondent's failure to file an answer, the undersignedjudgereiterated the importance ofthe Respondent's participation inthe proceedings.5 After discussing 

### in detail the requirements ofa sufficient answer,6 the undersignedjudge 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 ofthe prehearing conference, the undersignedjudge confirmedthat the Respondent would have his answer in the mail by January 20, 2017. 8 Atthe end ofthe prehearing conference, the undersignedjudge 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 undersignedjudge directed both parties to file any discovery requests upon the opposing partyby January 31, 2017. See January 17, 2017 Transcript at 15-19. 5 The undersignedjudge stated, "[w]e discussed previously

... that to not respond at all wouldbe the wrong course ofaction." 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 undersignedjudge explained the Respondent's answer, "mustbe postmarked January 20th,, to whichthe Respondent replied "[c]ertainly." /d. at 13. To eliminate any potential confusion for theproseRespondent, the undersignedjudge clarified, "[s]oy'ou, sir, will draft your answer and put it in the mail to me bythis Friday, January 20th," to which the Respondent answered"[o]fcourse." Jd 9 The Respondent replied "[m]m-hmm" after the undersignedjudge asked "[a]nd do you understand what you need to be doing is that by filing your written answer no laterthan this Friday, which canbe very simple for you, admitting ordenying all the paragraphs ofthe complaint

..." Id at 25. 10 To ensure the Respondentreceived 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 checkthat email. See id at 26-27.The Respondent has failed to participate in several other aspects ofthis case, including failing to comply withthe undersignedjudge'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 otherreasons, a Respondent may be deemed to have constructively withdrawn a request for a hearing ifthe Respondent fails to respond to ajudge's orders11 or is silent. 12 Additionally, ifa Respondent fails to respond to documents sentto them by the ALJ orthe Complainant, then such failure shall be construed as an abandonment ofthe hearing process. 13 Pursuant to 14 C.F.R. 

### § 13.215, a party may withdraw a request for a hearing withoutthe consent ofthe administrative lawjudge at any time before or during a hearing. Upon such withdrawal, the administrative lawjudge shall dismiss the case with prejudice. Therefore, based upon a review ofthe record, and consideration ofthe 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, orrespond to, the Meet and Confer Order. 5. The Respondent was advisedin 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 byNovember 28, 2016, despite being ordered to do so onNovember 18,2016.

1l In re Blankson, DocketNo. CP97EA0024 (Order Assessing Civil Penalty, Sep. 11, 1997) (ALJ found failure to respond to previous orders constituted constructive withdrawal), aff'd, FAA OrderNo. 1998-21 (Order Dismissing orAlternatively Denyingthe Appeal, Oct. 9, 1998). 12 See, e.g., In re IAL Power Supply, DocketNo. CPOIS00015 (Initial Decision, Aug. 7, 2001) (ALJ construed Respondent's silence as a constructive withdrawal ofrequest for a hearing), appeal dismissed, FAA OrderNo. 2002- 10 (Decision and Order, Apr. 17, 2002); In reMcDermott, FAA OrderNo. 1999-8 at 1 (Order Denying Appeal, Aug. 31, 1999);In re Pierre, FAA OrderNo. 2001-8 at 5 (Order Denying Appeal, May 16, 200I). 13 In reNissen, FAA OrderNo. 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 byJanuary 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 inthis case, in particular his failure to file an answer despite repeated orders to do so, constitutes a constructive withdrawal ofthe Respondent's request for hearing. 

### AND ORDERED that, pursuantto 14 C.P.R.§ 13.215, these proceedings are dismissed with prejudice. 14

# ~ALD Administrative LawJudge

Attachment: Service List

14 The case nowreverts tothe Final Notice ofProposed Civil Penalty stage. SeeIn reApolloA & HS Co., FAA OrderNo. 2011-4 at 4-5 (Decision and Order, Jan. I4, 20II). Should eitherparty wish to appeal this decision, they are instructed to file a notice ofappeal with the FAA decisionm.aker no laterthan I0 days from the service ofthis order. See I4 C.F.R. § 13.233(a). The party must also file the notice ofappeal with the FAA Hearing Docket using the appropriate address listed in 14 C.F.R. § 13.2IO(a). Finally, the party mustperfecttheir appeal by filing, not laterthan 50 days from service ofthis order, an appeal briefwith 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 ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-5121 StaffAssistant F}L[: 202-366-7536 DocketNo. FAA-2015-0639 (Civil Penalty Action)

15 Service was byU.S. Mail. For service in person orby 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.