RECEIVED 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS AUG 2 4 2015 

WASIDNGTON, D.C. 

HEARING DOCKET 

In The Matter Of: 

BIRMINGHAM FLIGHT CENTER, INC. 

Respondent. 

Docket No. F AA-20 14-0867 

Judge J.E. Sullivan 

FAA Case No .. 2012S0090053 

MOTION TO AMEND SCHEDULE TO EXTEND DISCOVERY AND SET DEADLINES 

FOR DISPOSITIVE MOTIONS 

Pursuant to the Court's April 7, 2015, Scheduling Order, discovery in this matter is set to 

close tomorrow, August 21, 2015, with pre-hearing filings to begin shortly thereafter, and no 

time set aside for dispositive motions. However, as of this date, the parties have not yet 

completed discovery, and will not be able to complete it in the time allotted. Further, the limited 

discovery completed indicates that this case can likely be resolved by motion, without the need 

for the time and expense of a hearing. Accordingly, the FAA moves to extend the discovery 

period, set deadlines for the filing and consideration of dispositive motions, and continue the 

hearing to a future date consistent with these actions. 

Status of Discovery 

On July 1, 2015, the undersigned file a Notice of Appearance as the FAA's counsel of 

record in this case, noting that prior counsel was no longer with the FAA. That week, the 

undersigned telephonically contacted Respondent's counsel to discuss the case, including 

specifically whether there were any pending matters that the FAA needed to address. See 

I 
Exhibits A, B. The undersigned left a voice mail with Respondent's counsel to that effect, but 

received no call or other contact in response. See Exhibits A, B. 

On July 7, 2015, the undersigned served discovery requests on Respondent's counsel via 

certified mail and facsimile. See Exhibits C, D, E. 

On July 24, 2015, the undersigned sent a letter to Respondent's counsel. Exhibit A. That 

letter specifically sought information on "any outstanding obligations on the part of the FAA in 

this matter (e.g. discovery responses) and, if so, what they are." !d. The undersigned received no 

response to this letter. 

On August 1, 2015, Respondent provided responses to a set of discovery requests made at 

some time prior to July 2015. See Exhibit B. After reviewing those discovery responses, the 

undersigned sent Respondent's counsel an e-mail on August 10, 2015, again asking Respondent 

to identify what information Respondent believed the FAA had not yet provided. Exhibit B. 

Respondent's counsel did not respond to this e-mail. 

On August 17, 2015, Respondent's counsel for the first time contacted the undersigned in 

order to discuss unspecified discovery matters, which resulted in the undersigned and 

Respondent's counsel speaking for the first time on August 19, 2015. During that conversation, 

Respondent's counsel represented that Respondent had served discovery requests on the FAA in 

April2015, including requests that had not been previously available to the undersigned, and that 

the FAA had not responded to those requests. Respondent's counsel provided the undersigned 

with copies of those aspects of the discovery requests to which the undersigned had not 

previously had access. 

Also during that conversation, Respondent's attorney indicated that he had not been sure 

what the FAA's intent had been with regards to the July 7, 2015, discovery requests, and that he 

2 
had not yet begun to prepare responses to those discovery requests. The undersigned indicated 

that it did want responses to those discovery requests. 

As a result of these circumstances, the parties in this case have only just begun to work 

on providing discovery responses to full sets of discovery requests, 1 but discovery is presently 

set to close tomorrow, August 21,2015. Additionally, during the August 10, 2015, conversation, 

Respondent's counsel raised the possibility of wanting to take perpetuation depositions. It is, at 

this point, impossible for the parties to complete their discovery obligations during the set 

discovery period. Although Respondent disagrees and opposes this motion, it is difficult for the 

undersigned to see how the parties can complete discovery and still fulfill their obligations to 

exchange witness and exhibit lists by September 18, 2015, even assuming that both parties are 

fully satisfied with the other's discovery responses. 

Summary Judgment 

The current schedule for this matter does not include time for filing dispositive motions. 

At the time the schedule was made Respondent's counsel opined that a hearing would 

"definitely" be required in this case. April 7, 2015, Scheduling Conference, Tr. at 9. 

Respondent's counsel has indicated that this remains Respondent's position. At the scheduling 

conference, the FAA's, when asked about whether a dispositive motion period was needed, 

statated that "it's hard to make a decision since we haven't really gone through discovery yet ... 

at this time, the agency doesn't feel as if it would need that motion period. But again, it's hard to 

say without discovery, to be honest." !d. at 9-10. As discussed above, discovery in this matter is 

not yet complete. However, based on the information currently disclosed in discovery, it appears 

that the FAA does need a period to file a dispositive motion. 

1 The FAA's discovery requests include 15 interrogatories and 6 requests for production (the discovery requests also 

included requests for admission, which Respondent had already responded to). Respondent's discovery requests 

include 13 interrogatories and 33 requests for production. 

3 
In brief, the FAA alleges in this case that Respondent operated a charter flight that fell 

within the ambit of Part 135 of the Federal Aviation Regulations and, because Respondent is not 

an air carrier and does not have personnel qualified to operate under Part 13 5, violated a variety 

of the regulations pertaining to the requirements for Part 135 operations. See Complaint. 

Respondent does not dispute that the flight occurred, but asserts that it was not a charter flight, 

but rather a demonstration flight under 14 C.F.R. § 91.501. Respondent's discovery responses do 

indicate that there are factual disputes as to some of the details of the arrangements for the flight. 

However, these disputes appear to be immaterial because Respondent also concedes facts that 

prove that the flight was, as a matter of law, not a demonstration flight. 

As a result of the above, it is appropriate for a dispositive motion period to be set in this 

case. The parties so far have between them identified approximately a dozen potential witnesses, 

including at least 8 who seem likely. Holding a hearing will be a significant inconvenience to 

these witnesses, many of whom do not reside in the same state as the hearing location. And 

holding a hearing, of course, requires a significant commitment of time and treasure on the part 

of both parties and the Court. Where, as here, a case can likely be resolved on motions, the 

burden of a hearing should be avoided. 

Requested Actions 

As discussed above, although discovery in this case is set to close tomorrow, August 21, 

2015, the parties will not be able to complete discovery in that time frame. Although the 

procedural schedule currently set envisions a month between the close of discovery and the 

exchange of witness lists and exhibits, the parties are effectively only now beginning to address 

discovery requests, a process which is also usually assigned a month for completion (even if 

there are no disputes about the responses). Further, it appears that this case can be disposed of on 

4 
motion, without the need for a hearing at all. Accordingly, the FAA requests the following 

modifications to the current schedule: 

Discovery in this matter be extended for an additional month, to provide the parties with 

additional time to respond to currently pending discovery requests. No new. discovery 

requests would be permitted during this extended period. 

A date for dispositive motions be set, with initial motions due approximately one month after 

the close of discovery, with an additional month or less for responses in opposition and 

replies in support, and time as needed for a motion conference and the Judge's consideration 

of dispositive motions. 

The remainder of the current schedule to be time-shifted to accommodate these additions, 

with the hearing to take place in or after April2016. 

Based on prior experience, the undersigned anticipates that the primary factor controlling when a 

continued hearing could take place would be the Judge's existing hearing schedule. To the extent 

that additional time would be present in the schedule due to the Judge being unavailable in or 

before April 2016, additional time could be added to the discovery period to allow for any 

disputes to be resolved. If the Judge was available before April 2016, the dispositive motion 

schedule, and the current schedule, could be compressed to permit the parties to appear at a 

somewhat earlier hearing, in the event that the FAA's dispositive motion is denied in whole or in 

part. As noted above, Respondent opposes the FAA's request to modify the existing schedule. 

1""' 

ubmitted thi/ O day of August, 2015. 

CHRISTOPHER R. S EVENSON 

Attorney 

Office of the Chief Counsel, Enforcement Division, Southern Team 

5 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Motion to Amend Schedule to Extend Discovery and Set 

Deadlines for Dispositive Motions was sent: 

original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl000 

one copy via certified mail and facsimile to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Paul R. Borth, Esq. 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025 

facsimile: (815) 356-7042 

tAUG 2 0 2015\ 

Dated 

6 
./ 

U.S. Department 

of Transportation 

Federal Aviation 

Administration 

[JJJL 2_4 c~ 

VIA CERTIFIED MAIL 

Paul R. Borth 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025 

facsimile: (815) 356-7042 

Southern Region 

Office of the Regional Counsel 

Re: FAA v. Birmingham Flight Center, FAA-2014-0867 

Mr. Borth: 

P.O. Box 20636 

Atlanta, Georgia 30320 

( 404) 305-5200 

( 404) 305-5223 FAX 

20 12S0090053 

I am writing on several matters concerning the above-referenced case. As you are aware, I 

recently took over this case from the prior FAA attorney, who left the Agency. I have attempted 

to speak with you telephonically, but I have not received a return call. I wished to cover three 

matters in particular. 

First, I wanted to learn whether you believe there are any outstanding obligations on the part of 

the FAA in this matter (e.g., discovery responses) and, if so, what they are. In the absence of any 

such identification, I will presume that my predecessor provided you with all required 

information. 

Second, I wanted to inquire as to Respondent's initial disclosures in this matter. My review of 

the file does not reveal any initial disclosures by Respondent. Please advise whether initial 

disclosures were made by Respondent and the FAA's copy has simply been misplaced, or 

whether Respondent has riot yet made initial disclosures. 

Third, my review of the file does not reveal that any settlement offers had been extended in this 

matter. To the extent that my predecessor may have made any settlement offer of which I am not 

aware, and to the extent that any such offer may still be outstanding, any such pffer is hereby 

rescinded. Based on my review of the file, we are presently willing to accept a reduced civil 

penalty of $8,000 in full settlement of this matter. 

GOVERN""ENT 

EXHIBIT 

A 
Please do not hesitate to contact me if you have any questions or concems regarding this case. 

Sincerely, 

CHRISTOPHER R. STEVENSON 

Attomey 

Office of the Regional Counsel 

· · ostal Service'· 

Domestic 

CERTIFIED Mail MAIL® R Only ECEIPT 

' u y2014 SeeRe 

Postmaril" 

He<e 

C OtiS 

, 
Stevenson, Chris (FAA) 

From: 

Sent: 

To: 

Cc: 

Subject: 

Mr. Borth, 

Stevenson, Chris (FAA) 

Monday, August 10, 2015 2:42 PM 

'Paul Borth' 

Charles R. Barnett ill 

RE: Birmingham Flight Center Discovery Responses 

As you are aware, I recently took over this case after my predecessor, Deitrick Johnson, left this office. Shortly after 

taking over the case at the beginning of July, I called your office and, as you were unavailable, I left a message asking to 

speak with you about the case, including whether the Respondent was waiting on anything from the FAA in this case. I 

received no response to that call. I later sent you a letter about the case. One of the subjects addressed in that letter 

was to ask you to identify what, if any, outstanding obligations you believed there were on the part of the FAA in this 

matter. I have, to this date, received no response to that letter. 

I note that, in its response to Interrogatory #6, on page 5-6 of Respondent's discovery responses, there is a reference to 

Respondent awaiting answers to unspecified discovery propounded upon the Administrator. At this point, I can only 

reiterate the contents of my prior attempts to contact you- if you believe there are any outstanding obligations on the 

part off the FAA, please let me know what they are. I apologize if this was discussed with my predecessor, but in 

reviewing the file, I do not see any prior correspondence discussing any delinquent obligations on the part of the FAA, 

and I cannot work to provide you with the information if I do not know what it is you seek. 

Thank you, 

Christopher Stevenson 

Attorney 

Office of the Regional Counsel 

(404) 305-5200 

From: Paul Borth [mailto:prb@barnettleqal.com] 

Sent: Saturday, August 01, 2015 3:48PM 

To: Stevenson, Chris (FAA) 

Cc: Charles R. Barnett III 

Subject: Birmingham Flight Center Discovery Responses 

Chris: 

Please see attached answers to your discovery. Please give me a call should you have any questions. Have a nice 

weekend. 

Sincerely, 

Paul Borth, Esq. 

Barnett & Borth, LLC. 

800 Waukegan Road 

Suite 200 

1 

GOVERNMEIU 

EXHIBIT 

13 
Glenview, IL 60025 

Direct: 847-809-9520 

Office: 800-578-5512 

Fax: 815-356-7042 

prb@barnettlegal.com 

Alabama Office: 

460 I East Lake Boulevard 

Hangar# 29 

Birmingham-Shuttlesworth International Airport (KBHM) 

Birmingham, Alabama 35217 

2 
CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing FAA's First Discovery Requests was sent via certified mail 

and facsimile to: 

Paul R. Borth, Esq. 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025 

facsimile: (815) 356-7042 

Legal 

~g~N~J 

Assistant 

Office of the Regional Counsel 

ciUL 

Dated 

u s Postal Service'" 

c'ERTIFIED MAIL® RECEIPT 

M I Only 

~ ::o:o-:m .. :e.s; !c:; ~i~iii~~~~i-m· ~ii!ii~F~~~~~·~~IJ~- l/1 •• ·

0 F F 1 C I A L U S E J 

f 

15PSN753tkl2000-Sil47 See A e verse for lnstructtons 

GOVERNMENT 

EXHIBIT 

c 
DATE, TIME 

FAX NO. /NAME 

DURATION 

PAGE(S) 

TRANSMISSION VERIFICATION REPORT 

07/07 12:53 

918153557042 

00:02:47 

05 

07/07/2015 12:55 ~~~~ : FAA REGIONAL COUNSEL 

FAX 4043055223 

TEL · 4043055200 

SER.K; BROD9J925659 

CHECK RESULT READ ABILITY OF TRANSMITTED PAGE(S) OK 

05 

MODE 

Date: 

STANDARD 

Southern Region 

Office of the Reg-ional Counsel, AS0-7 

P. 0. Box 20636 

Atlanta, GA 30320 

TEl, (404) 305-5200 

FAX (404) 305-522.1 

From: P<lges: 

Tv Pet.o.\ e. ~r+n, E5ct . To 

g, ~-eue(l&ln, e£1{' · 

Finn 

Phone; 

Fax (~15)3'5h-161..\2. Phone: 

GH:::-ARD __ c_o_P_Y_T_O_F_OL_L_ow_,_l_-f_YI_'ee_''_l_I_N_o / __ I:;:H::-A-R-~I>c_o_P~Y-T __ oF_o_L_l_.o_"_'_: l_n_··--~~.a GOVER~MENT ·-:··_ EX~-IIBIT To L) 

Fi1·m· 

Firm: 

PhnnP· 
Engll:sh Customer Servh::e USPS Mobile 

iJIUSPS.COM' 

USPS Tracking® 

Tracking Number. 70150640000100875471 

Product & Tracking Information 

Postal Product: Features: 

Certified Mail,. 

DATE & TIME STATUS OF ITEM LOCATION 

July 10,2015,9:27 am Delivered GLENV1EW, IL 60025 

Your item was delivered at 9:27am on July 10, 2015 in GLENVIEW, IL 60025. 

July 9, 2015, 3:07pm Departed USPS Facility 

July 9, 2015 . 7:53am Arrived at USPS Facility 

July 8. 2015.3:31 pm Departed USPS Facility 

July 7, 2015,6:23 pm Arrived at USPS FacUlty 

Track Another Package 

Tracking (or receipt) number 

HELPFUL UNKS 

Contact Us 

Site Index 

FAQs 

Copyright 0 2015 USPS. All Rights Reserved. 

ON ABOUT.USPS.COM 

About USPS Home 

Newsroom 

USPS Service Updates 

Forms & Publications 

Government Services 

c .... ,. 

PALATINE, ll60095 

PALATINE, tl 60095 

NORTH METRO, GA 30026 

NORTH METRO, GA 30026 

Track It 

OTHER USPS SITES 

Business Customer Gateway 

Postal Inspector.; 

Inspector General 

Postal Explorer 

National Postal Museum 

Resources for Developer.; 

Register I Sign In 

Customer Service ' 

Have questlons? We're here to help. 

Get Easy Tracking Updates • 

Sign up for My USPS. 

Available Actions 

Text Updates 

Email Updates 

Manage Incoming Packages 

Track all your packages from a dashboard. 

No tracking numbers necessary. 

Sign up for My USPS> 

LEGAL INFORMATION 

Privacy Policy 

Tenns of Use 

FOIA 

No FEAR Act EEO Data 

GOVERNMENT 

EXHIBIT 

.. P: