e 

U.S. Departinent 

of Tronsf>orlntion 

Federal Avialion 

Administration 

New England Region 

Office of Ihe Regional Counsel 

mm 

12 New England Executive Park 

Burlington. MA 01603-5299 

Telephone: (7ei)238-70't5 

FAX: (7S1)238-705G 

May 11,2010 

FEDEl^X LXP1<1£SS AND FACSIMILE (202) 366-7536 

The Honorable Isaac D, 13enkin 

Adminisirative Law Judge 

Office of Hearings, M-20 

U-S. Department of Transportation 

East Building Ground Floor, Kooin E12-320 

1200 New Jersey Avenue, S.E. 

Washingion, D.C. 20590 

' (f >' • •,,., 

cim^mi 

Re: Federal Aviation Administialion v. Cily of Bridgeport. Connecticut 

Docket No. CP09NE0001 

Dear Judge Ben kin: 

Enclosed, please find Complainanr.s Motion for Decision in the abovc-capiioned Civil Penalty 

Action. 

Sincerely, 

'' /JOHN R. DONNELLY 

' Senior Attorney 

Enclosures 

cc: Richji^ Kascak, Jr., Esquire 

-JdiJaring Docket 

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> 

UNITED STATES OF AMERICA ; 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C 

J. RANDOLPH BAI3131T, Administrator, 

Federal Aviation Administration, 

Complainant, 

CITY OF BKJDGEPORT, CONNECTICUT. 

Respondent, 

es 

Docket No. CP09NE0001 

Adininistraiive Law Judge 

Isaac D. Benkin 

Dale: May 11.2010 

COMPLAINANT'S MOTION FOR DECISION 

The Federal Aviation Administration ("FAA"), through counsel, moves, pursuant to 

§13.2 IS(0(5) of the Rules of Practice in FAA Civil Penalty Actions (14 C.F.R. 13.218(f)(5)) for 

a decision in that there arc no genuine issues of material fiict and ihe moving parly is entitled to a 

decision as a matter of law, 

1. Respondent's Failure to Specify in Di.scovcrv Its Evidentiary and Factual Basis for Full 

or Partial Denial of Administrator's Complaint Results in Admission 

1. On March 30, 201U. the Complainant, FAA. tiled a Motion to Compel Discovery. 

2. The Respondent failed to object or respond to the Motion to Compel. 

3. Thu.s, on April 15, 2010, the Adniinislralive Judge issued an Order Setting Deadline for 

Reply to Motion to Compel which states, in pcrtinenl part, the following: 

"If by April 20, 2010, the Respondent has not supplied in good faith the 

material sought by Complainant's di.scovery requests or demonstrated that 

some or all of these requests are noi well-taken, 1 will have no choice except 

lo grant Complainant's motion and impose sanction.^ upon the City." 

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4. Respondent failed to comply witii this Order. 

5. As such, on April 29, 2010, the Administrative Judge issued an Order Imposing 

Sanction.'? for Failure to Provide Responses to Discovery Requests which stales, in pertinent part 

that; 

In consideration of the foregoing, and pursuant to § 13.220 of the Rules of 

Practice and Procedure, the Respondent will not be permitted to introduce any 

evidence or sponsor any witnesses at the hearing on the subjeci of its liability for 

a civil penalty by reason of die violations of the Federal Aviation Regulations 

with which it is charged. Its participation in the hearing will be limited to crossexamination of the witness or witnesses sponsored by the Complainant and the 

presentation of evidence bearing solely upon the i.ssue of the amount of the civil 

penalty to be assessed against it. 

6. Notably, during discovery. Respondent failed to provide its evidentiary and factual basis 

for its full or partial denials to allegations contained in the Complaint. 

7. As such. Respondent's blanket unsupported denials should be stricken and deemed 

admitted. 

8. For example, the Complainant's First Set of InteiTOgatories and Request for Production 

of Documents requests, in pertinent part, that Respondent specify the evidentiary and factual 

basis for Respondent's full or partial denial (o Ihe following paragraphs in the 

Administrator's Complaint: 5, 6, 7, 8,10,11, 13, 16, 18, 20, 22, 23, 24, 25, 26, 27, and 28, 

(Please see Exhibit A attached, paragraph (9). Respondent admitted to the remainder 

paragraphs). 

9. Respondent completely failed to respond to these requests. As a result, Respondent has 

failed to supply a definite statement of its unfounded denials. Said failure results in deemed 

admission of unanswered allegations in the Complaint. (See e.g.. 14 C.F.R. §13.218{3)(ii)). 

10. In that by Order the Respondent is precluded from providing testimony or evidence at 

hearing (including the evidentiaiy and factual basis for its blanket denials). Respondent should 

now he deemed to have admitted lo each of the allegations contained m the Administrator's 

Complaint. 

11. Consequently, given Respondent's complete admi.ssion to the Complaint, there are no 

genuine issues of material fact. 

12. Accordingly, the Complainant is entitled to a decision in its favor as a matter of law. 

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II. Respondent's Failure to State Any Affirmative Defenses Results 

in a Waiver to Contest the Civil Penalty 

13. The burden of providing the affirmative defense of tlnancial hardship falLs on the 

Respondent who claims inability to pay a civil penalty. 14 C'.E.R. § 13.224(c); (Sec, also. In the 

Matter of Salvator Giuffrida. Civil Penalty Decision 1992-72. CP91EA0289 (December 21, 

1992)). 

14. In this case. Respondent failed to state any alTimiative defenses in its Answer filed on 

February 1, 2010, as required by §13.209(d) which states: 

§13.209 Answer 

(d) Contents. An answer shall specifically state any affirmative 

defense that the respondent intends lo assert at the hearing. A 

person filing an answer may include a brief statement of any relief 

requested in the answer (emphasis added), 

15. Despite this inandatoiy requirement, Respondent has completely failed to provide any 

affirmative defenses or relief requested in its Answer. 

16. Likewise, Respondent failed to provide a brief summaiy of all proposed affirmative 

defenses and the factual and legal basis for each as requested by Complainant in discovei-y. 

(Exhibit A, paiagiaph (6)). 

17. Furthermore, Complaint paragraphs 27 and 28 correctly .state that the maximum penalty 

per violation as adjusted under 14 C.K.R, 13.305 is !E25,000 and that under the facts and 

circumstances that a $77,000 civil penalty is appropriate. 

18. The Complaint alleges sixteen (16) separate violations of various sections of Part 139 (14 

C.F.R. 139). Complaint, Paragraph 26. 

19. Accordingly, the City of Bridgeport's potential liability in this case is $400,000. (16 

violations multiplied by $25,000 equals $400,000). 

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20- The proposed penalty of $77,000' however, is quite modest when compared with the 

potential maximum liability of $400,000 (indeed, it is less than 25%) yet reasonably reflects the 

nature and seriousness of these violaiion.<;. 

21. Nevertheless, Respondent has completely failed to assert any affirmative dcfen.ses in 

these proceedings, including financial hardship or inability to pay and has therefore waived 

its right to contest the civil penalty. 

22. Even if Respondent had claimed any affirmative defenses, the FAA ha.'? already taken 

such matters under consideration in reducing a maximam potential civil penalty of $400,000 

down to a far more moderate penalty of S77,000. 

23. As provided by 14 C.F.R. §13.218(0(5), the Administrative Judge shall grant a party's 

motion for decision if the pleadings, ..., answers to interrogatories, admissions, [orj matters the 

Administrative Law Judge has ollicially noticed,.,.show thai there is no genuine issue of 

material fact and that the parly making the motion is entitled to a decision as a mailer of law. 

WHEREFORE, the Complainant, |-"AA, hereby moves for a decision under 14 C-F.R. 13. 

218(i)(5) because there are no genuine issues of material fact and the moving party is entitled to 

a decision as a matter of law. 

Respectfully Submitted, 

JOHN R. DONNEIXY, Senior Attorn 

'ederal Aviation Administration 

Office of Regional Counsel 

12 New England Executive Park 

Burlington. MA 01803-5299 

Tel: 781-238-7045 

Fax:781-238-7055 

Email: John.DonneJlv('(t'faa.i;o_v 

May 11,2010 

' The FAA ba.scd its pioposed sanction on .seven (7) topical ;n-cas of violations (I. ACM Conienis; |1, 

Opcralions/PcrisonncI; III. Paved Areas; IV. Safety Arc;i.s; V. Fiic Safety iti Aviation l-uci; V( Fueling Agent Truiiiinu;: 

nod V||. Wildlife Hazard Management) and iiiiikiplicd these seven (7) .•^^lbiec^ areas of violations times a far JiiOie 

moderate penalty of $11,000 resulting in the proposed civil penalty of .1!77,000. 

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CERTIFICATE OF SERVICE 

I hereby certify that today. May 11, 2010, I have .sent via Federal Express and Facsimile an 

original of Complainant's Motion for Decision in the matter of FAA v. City of Bridgepon, 

("onnccticut. FAA Docket No. CP09NE0001 addressed to the following: 

The Honorable Isaac D. Benkin 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave., S.E. 

Washington. D.C. 20590 

Fax:(202)366-7536 

I iiho certify that today. May 11. 2010,1 have sent via Certified Mail-Return Receipt 

Requested and U.S. First Class Mail, a copy of said document addressed lo die following: 

Mr, Richard G. Ka.scak, Jr. 

Associate City Attorney 

Office of the City Attorney 

999 Broad Street, 2"^ Floor 

Bridgeport, Connecticut 06604-4328 

Fax: (203) 576-8252 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Wilbur Wriglit Building-Suiie 2W1000 

800 Independence Avenue, SW 

Washington, DC 20591 

XCfvArL 

DONT^A SORENSEN 

Program Analyst 

liM.-^ 

Dated: May 11,2010 

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