UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS, WASHINGTON, DC 

' -- ,, 

In the Matter of: ) 

) 

) 

) 

) 

Docket No. FAA-2014-0867 

BIRMINGHAM FLIGHT CENTER, INC. Judge J.E. Sullivan 

Respondent. Case No. 2012 SO 090053 

RESPONDENT'S MOTION FOR DECISION 

Now Comes the Respondent, Birmingham Flight Center, by its attorneys, Barnett 

& Borth, LLC, and pursuant to 14 CFR §13.218(f)(5) hereby files its MOTION FOR 

DECISION in the instant matter, and in support thereof states as follows: 

I. Introduction and Background: 

On December 15, 2014, the FAA served a Complaint on the Respondent, a flight 

school operating in Birmingham, Alabama. (A copy of the FAA Complaint is attached as 

Exhibit A). The FAA's Complaint was filed pursuant to 14 C.P.R.§ 13.208, thereby 

invoking this Court's jurisdiction. The FAA's Complaint alleged that on or about 

September 18, 2012, the Respondent had operated a passenger flight for compensation or 

hire without a certified pilot. Pertinent to the present motion, the FAA specifically 

alleged that: 

2. On or about September 18,2012, you [The 

Respondent] operated N525LP, a Cessna Citation Jet, as a 

passenger carrying flight from Birmingham, AL (KBHMJ) 

to Destin, FL (KDTS) (hereinafter "Flight"). 

3. The Flight was operated for compensation or hire. 

(See Exhibit A at~ II. §§ 2 and 3). 

Based on these two factual allegations, the FAA asserted the Respondent had 

violated seven (7) FAA safety regulations. (See Exhibit A at~ II. §5 a-g). The FAA then 
proposed a total civil penalty of$11,000. (See Exhibit A at~ 6). On December 18,2014, 

the Respondent filed its Answer denying the factual allegations set out in the FAA's 

Complaint at~ II. §§ 2 and 3. (See Exhibit B). 

The two factual allegations set out in its Complaint at~ II. § § 2 and 3 serve as the 

only foundation from which a finding may be made that the Respondent violated any of 

alleged violations of the Federal Aviation Regulations set out in the FAA's Complaint at 

at~ II. §5 a-g or that the Respondent is subject to any civil penalty. 

On November 18,2015, the Respondent, Birmingham Flight Center, Inc., filed its 

Motion for Sanctions which included a request for alternate sanctions. 

On December 10,2015, the FAA filed a Response in Opposition to Motion for 

Sanctions. 

On January 15,2016, the Respondent filed the Respondent's Reply to the Striking 

the FAA's Response in Opposition to Motion for Sanctions. 

On February 22,2016 an Order Denying Respondent's Motion to Dismiss and 

Reserving Ru1ing on Other Sanctions was filed. 

On March 30, 2016 an Order Setting Motion Conference was filed by this Court. 

On April 13, 2016, the parties convened for a Motion Conference to discuss the 

legal and procedural questions raised by the Respondent's Motion for Alternate 

Sanctions. Consistent with the agreements of the parties, this Court entered an Order 

Setting Deadline for Respondent to file Supplemental Material and Continuing the 

Motion Conference for May, 5, 2016. 

On May 2, 2016, the Respondent filed a Supplemental BriefConceruing 

Respondent's Motion for Sanctions 

21Pagcc 
On May 5, 2016, the parties convened for a Second Motion Conference and 

presented their respective oral argument concerning the Respondent's Motion for 

Alternate Sanctions. 

On June 3, 2016, this Conrt served its Order Granting Respondent's Motion For 

Alternative Sanctions. (See Exhibit C/. 

Relevant to the present motion, this Conrt held: 

This Conrt has engaged in a very careful 

consideration of the record to determine what sanction(s) 

would be proportional and appropriate, not only to address 

the proven misconduct but also to deter any future 

misconduct of a similar nature. All the facts in this case, 

the well- established legal and professional standards in the 

litigation process, case law, legal sources, and the 

possibility of imposing various less severe sanctions have 

been reviewed and considered in depth. This Conrt has also 

considered the seriousness of the conduct, the impact the 

conduct has had on both the case and in the administration 

of justice, and whether there was a pattern of wrongdoing 

throughout the proceeding. 

As detailed fully in this Order, the FAA has 

engaged in discovery misconduct. This misconduct should 

not have occurred. It should never occur again. As a result, 

this Conrt agrees with the Respondent that the appropriate 

and proportional response to the discovery violations and 

misconduct herein is to strike the applicable portion ofthe 

FAA's pleadings. 

Pursuant to J 4 C.F.R. §§ !3.217(f)(l) and 

!3.220(n)(l ), the instructive guidance of Rule 37, and after 

reviewing all relevant caselaw, regulation, statutory 

authority, and being fully advised; 

1 The Court's June 3, 2016 Order Granting Respondent's Motion for Alternative Sanctions provides a 

comprehensive and accurate recitation of the facts, arguments, and legal authority concerning this matter as 

well as this Court's well-reasoned decision and is adopted here as though more fully set forth herein. 
IT IS HEREBY ORDERED: 

1. The Respondent's Motion for alternate Sanctions is 

granted. 

2. The following portions of the FAA's December 15, 

2014 pleadings are hereby stricken as a sanction for the 

FAA's misconduct in this case: 

Paragraph II, page 1 §§ (2) and (3). 

No facts regarding these two struck pleadings may be 

introduced into evidence. 

3. Upon receipt of this Order, either party may move 

for additional relief. (See Exhibit C at p.41-42). 

No hearing on this matter has yet been held and this Court has not issued an initial 

decision in this matter. 

On the basis of this Court's striking of Paragraph II, page 1 §§ (2) and (3) of the 

FAA's Compliant and the Court's Order that: "No facts regarding these two struck 

pleadings may be introduced into evidence", the Respondent brings this Motion to 

Decision. 

II. Argument: 

14 CFR § 13 .218(f)(5) specifically provides that: 

A party may make a motion for decision, regarding all or 

any part of the proceedings, at any time before the 

administrative law judge has issued an initial decision in 

the proceedings. The administrative law jndge shall 

grant a party's motion for decision ifthe pleadings, 

depositions, answers to interrogatories, admissions, 

matters that the administrative law judge has officially 

noticed, or evidence introduced during the hearing 

show that there is no genuine issue of material fact and 

that the party making the motion is entitled to a 

decision as a matter oflaw." 14 CFR 

§ 13 .218(f)( 5)( emphasis supplied). 
On the basis on this Court's Order of June 3, 2016, striking of Paragraph II, page I 

§§ (2) and (3) of the FAA's Compliant and holding that the FAA is barred from 

introducing any facts or evidence regarding these two struck pleadings at the hearing of 

this case, the FAA cannot present any question of material fact at the proposed hearing of 

this matter concerning the any alleged violation of any Federal Aviation Regulation 

regarding the Respondent, cannot present a prima facie showing of any violation and 

cannot prevail at the proposed hearing of this matter. 

Each of the FAA's allegations concerning violations of the Federal Aviation 

Regulations delineated in the FAA's Complaint at~ II. §5 a-g require either operation of 

a flight or operation of a flight for hire or both. Without the factual allegations previously 

set forth in Paragraph II, page 1 §§ (2) and (3) of the FAA's Compliant, there are no facts 

to support the alleged violations of the Federal Aviation Regulations and the FAA's 

complaint fails to set out any cause of action against the Respondent. Accordingly, since 

there is no question of material facts, no material facts are now contained in the FAA's 

Complaint, and the FAA has no ability to raise a genuine issue of material fact from 

which the factfinder could fmd in the FAA's favor at hearing, the Respondent is entitled 

to judgment in its favor as a matter oflaw. 

WHEREFORE, for the foregoing reasons and pursuant to 14 CFR §13.218(f)(5) 

the Respondent respectfully requests that this Court enter an order granting the 

Respondent judgment in its favor as a matter of law and for such other relief or finding 

that this Court deems just an appropriate. 
Respectfully submitted, 

BARNETT & BORTH, LLC 

au 

Counsel for Respondent, Birmingham Flight Center, Inc. 

Barnett & Borth, LLC 

800Waukegan Road 

Suite 200 

Glenview, IL 60025 

Tel. (847) 724-5520 

Fax (815) 356-7042 

prb@bamettlegal.com 

611'''".'" ~- J:: "-' 
CERTIFICATE OF SERVICE 

I hereby certifY that I have sent via Fec!Ex the foregoing RESPONDENT'S 

MOTION FOR DECISION addressed to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave. SE (Ell-310) 

Washington D.C. 20590 

Fax 202·366-7536 

Christopher Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, ASO-7 Southern Region 

1701 ColumbiaAvenue 

College Park, GA 30337 

ORIGINAL AND ONE COPY TO: 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building-Suite 2W1000 

Washington, DC 20591 

Attention: Hearing Docket Clerk. AGC-430. 

Dated: J~t<-13,~16. ~-

,/· 

/ .... 

~··f' ~,~-/~ .. ~ / / .... / / c>· .. r::? / ·'e•/' / _..>-'_./' <r;_J I -L-·( .. · • 1..-··Piiul R. Boffli /'/ 

Counsel for Respondent 

Barnett & Borth, LLC 

800Waukegan Road 

Suite 200 

Glenview, IL 60025 

Tel. (847) 809-9520 

Fax (815) 356-7042 

prb@barnettlegal.com 

7["Page 
Jun 24 00 1 0:05p 

U.S. DEPARTMENT OF TR-\NSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

p.3 

FEDERAL AVIATION ADMINISTRATJON, 

Complainant, 

vs. 

Birmingham Plight Cerrter, Irrc. 

Respondent. 

JUDGE NOT YET ASSIGNED 

FAA Docket No. 

Judge 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.208), and states as follows: 

I. 

1. On November 19,2014, Respondent, Birmingham Flight Center, Inc. was advised 

through a Final Notice of Proposed Civil Penalty that the FAA proposed to assess a civil penalty 

in the amount of$11,000. On November 26,2014, the Agency Attorney receive-d a written 

request for a hearing from the Respondent. 

II. 

I. At all times material herein you were and are an Federal Aviation Administration 

approved 14 C.F.R. Part 61 and Part 141 flight schooL 

2. On or about September 18,2012, you operated N525LP, a Cessna Citation Jet, as 

a passenger carrying flight from Birmingham, AL (KBHM) to Destin, FL {KDTS) 

(hereinafter "Flight"). 

3. The Flight was operated for compensation or hire. 

4. At the time of the Flight, the Birmingham Flight Center did not: 

a. Hold an air carrier or commercial operator certificate under 14 C.F.R. Part 

119; 

EXHIBIT 

A 
Jun 2400 10:06p p.4 

b. Hold economic authority from the Department of Transportation; 

c. Conduct the flight with a qualified pilot under 14 C.F.R. 135; 

d. Pass a written or oral test given by the Administrator or an authorized check 

pilot to conduct the Flight; or 

e. Pass or complete the training, tests, and checks required to act as a pilot under 

14 C.F.R. Part 135. 

Ill. 

5. By reason ofthe foregoing facts arrd circumstances, Respondent violated the 

following sections of the Federal Aviation Regulations: 

a. Section 119.5(g) in that no person may operate as a direct air carrier or as a 

commercial operator without, or in violation of an appropriate certificate and 

appropriate operations specifications. l\ o person may operate as a direct air 

carrier or as a commercial operator in violation of any deviation or exemption 

authority, if issued to that person or that person's representative. 

b. Section 119.5(i) in that no person may operate as a direct air carrier without 

holding appropriate economic authority from the Department of 

Transportation. 

c. Section 119.33(a)(2j in that a person may not operate as a direct air carrier 

unless that person obtains an Air Carrier Certificate. 

d. Section 135.95(b) in that no certificate holder may use the services of any 

person as an airman unless the person performing those services is qualified, 

under this chapter, for the operation for which the person is to be used. 

c. Section 135.293(a) in that no certificate holder may use a pilot, nor may any 

person serve as a pilot, unless, since the beginning of the 12th calendar month 

before that service, that pilot has passed a written or oral test, given by the 

Administrator or an authorized check pilot, on thm pilot's knowledge in the 

areas specified in this section. 

f. Section 135.293(b) in that no certiftcate holder may use a pilot, nor may any 

person serve as a pilot, in any aircraft unless, since the beginning of the 12th 

calendar month before that service, that pilot has passed a competency check 

given by the Administrator or an authorized check pilot in that class of 

aircraft, if single-engine airplane other than turbojet, or that type of aircraft, if 

helicopter, multiengine airplane, or tu~bojet airplane, to detennine the pilot's 

competence in practical skills and techniques in that aircraft or class of 

aircraft. 
Jun 24 00 1 0:06p p.5 

g. Section 135.299(a) in that no certificate holder may use a pilot, nor may any 

person serve, as a pilot in command of a flight unless, since the beginning of 

the 12th calendar month before that service, that pilot has passed a flight 

ci:J.cck in one of the types of aircraft which that pilot is to fly. The ±1ight check 

shall-

( I) Be given by an approved check pilot or by the Administrator: 

(2) Consist of at least one t1ight over one route segment; and 

(3) Include takeoffs and landings at one or more representative airports. In 

addition to the requirements of this paragraph, tor a pilot authorized to 

conduct IFR operations, at least one flight shall be tlown over a civil 

airway, an approved off-airway route, or a portion of either of them. 

6 Pursuant to 49 U.S.C. Sections 46301 (a)-(d), Respondent is subject to a civil 

penalty not to exceed $1,100 for each ofthe violations alleged. 

Under the facts and circumstances ofthis case, a civil penalty of$11 ,000 is appropriate. 

WHEREFORE, the Agency, by counsel respectfully requests that the Administrative Law 

htdgc enter an order that Respondent be assessed a civil penalty in the amount of $11,000. 

Respectfully submitted this ~ day of December, 2014. 

DEL TRICK H. JO 

Attorney 

PLEASE NOTE: 

Pursuant to Title 14 CFR Section 13.209(a), you are required to file a written answerto this 

Complaint. or a written Motion to Dismiss if appropriate, not later than 30 days after the date 

shown on the Certificate of Service which follows. 
Jun2400 10:06p 

CERTIFICATE OF SERVICE 

1 hereby certify that a copy Gfthe foregoing Complaint has been mailed this date by Certified 

Mail, Return Receipt Requested, to the following: 

Birmingham Flight Center 

4243 East Lake Blvd. 

Birmingham, AL 35217 

Charles R. Barnett 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025-43&7 

Hearing Docket Clerk 

FAA, AGC-430, Suite 2WIOOO 

Wilbur Wright Building 

800 Independence Avenue, SW 

Washington, DC 20591 

Jj~ 6.LL.. t DONNA E. s~MJiY Legal Assistant 

Office of the Regional Counsel 

DEC . 5 2014. 

Dated 

(original -i- 1 copy) 

p.6 
SERVED DECEMBER 18,2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

JN THE MATTER Of 

BIRMINGHAM FLIGHT CENTER, INC. 

DOCKET NO. (CP09GL0008) 

(Civil Penalty Action) 

RESPONDENT'S ANSWER TO COMPLAINT 

COMES NOW the Respondent, BIRMINGHAM FLIGHT CENTER., by and through its 

counsel, BARNETT & BORTH, LLC, pursuant to 14 CFR §13.209 and hereby files its 

ANSWER in the instant matter, and states as follows: 

L 

1. ADMITS 

IL 

l. ADMITS 

2. DENIES 

3_ DENIES 

4. Subparagraphs a. through e.: ADMITS 

EXHIBIT 

B 

---------- -~~~~-
III. 

5. Subparagraphs a. through g.: DENIES 

6. DENIES 

Respondent respectfully requests the Administrative Law Judge deny the AdministTator's 

request to enter an order pursuant to the FinaJ Notice of Proposed Civil Penalty proposing a civil 

penalty in the atnount of $11,000.00 dated November 19, 2014. 

Dated: December 18,2014 

Charles R. Barnett, HI 

BARNETT & BORTH, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025-4387 

(815) 356-8647 

(815) 356-7042 (FAX) 

2 

Respectfully submitted, 

BARNETT & BORTI-I, LLC 

//~-:;?L {_ /. /. :r~z& ;:..· ~· / 

Attorney "tor'RetpOOdllt 

Bilmingham Flight Center, Inc. 
CERTIFICATE OF SERVICE 

The undersigned certifies that the foregoing Answer was served via Certified Mail, 

Return Receipt Requested as follows: 

ORIGINAL AND ONE COPY 

Federal Aviation Administration 

llOO h1dependence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W 1000 

FAJ(: 202-493-5142 

ONE COPY 

Deitrick H. Johnson, Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 

Southern Region 

1701 CoiumbiaAve 

Atlanta, GA 30337 

TEL: 404-305-5200 

F AJ(: 404-305-5223 

The Honorable J. E. Sullivan, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

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

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

Dated this 18'h day of December, 2014. 

i 

/-/~~ ' ./ .s".-<;,/ ¥~ IJ 

~harl~SR:ame; Attorney for Respondent 

3 
In The Matler Of: 

SERVED: .JliNE 3, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2014-0867 

Bl!UvlfNGHAM 

FLIGHT CENTER, INC. 

) 

) 

) 

) 

Case No. 2012S009005} 

Respondent 

ORDER GRANTING RESPONDENT'S 

MOTION .FOR AL TERNAn: SANCTIONS 

On November 18,2015, the Respondent, Birmingham Flight Center, Inc., filed the 

Respondent's ll1otion for Sanctions {"Motion"), which included a request for alternate sanctions. 

On December 10,2015, the FAA i1led a Response in Opposition to Motion t(Jr Sanctions 

("Response"). 

On January 15,2016, the Respondent flied the Respondent's Reply to the Striking the 

FAA's Response in Opposition to Motion for Sanctions ("Reply''). 

On February 19, 2016 an Order Striking the Respondent's Response and Denying lhe 

FAA's Motion to Compel was tiled. 

On February 22,2016 an Order Denying Respondent's Motion to Dismiss and Reo;erving 

Ruling on Other Sanctions was filed. 

On March 30. 2016 an Orde: Setting Motion Conference was liled. 

On April !3, 2016, the parties convened for a Motion Conference to discuss the legal and 

proeeduml questions raised by the Respondenfs Motion tor Alternate Sanctions. That same c\ay, 

EXHIBIT 

c 

E 

8 

~ ti 

~ ------' 
on April 13,2016, an Order Setting Deadline for Respondent to lile Supplemental Material and 

Continuing the Motion Conference was tiled, 1 

On May 2, 2016, the Respondent !iled a Supplemental BriefConcem\ng Respondem's 

Motion for Sanctions ("Supplement"), 2 

On May 5, 2016, the pm1ies convened for a Second Motion Confen:>nce and presented 

oral argument on1he Respondent's Motion for Altemate Sanctions. 

I. BACKGROUND 

A. Complaint and Answer 

On December 15, 2014, the FAA served a Complaint on the Respondent, a fligb school 

operating in Birmingham. Alabama. ln this Complaint the FAA alleged that on or aboUl 

September 18, 2012, the Respondent had operated a passenger flight for compensation or hire 

without a certified pilot Based on this fact allegation. the FAA asserted ihe Respondent had 

v[o]ated seven (7) FAA safety regulations, and proposed a tom\ civil penalty of$ r 1 ,000. The 

Respondent filed a December 18,2014 Answer and denied the allegations. 

B, Short Summary of Respondent's Motion 

The Respondent's November 18, 2015 Motion fol' Sanctions all.eged that '·[f]rorn the 

inception .. of the FAA's investigation in this case, the FAA had engaged in ·'improper, 

sanctionable conduct." (Motion, l,, L) The Respomlenl urged either dismissal oft he case or, 

altematively, other sanctions as the court deemed approptiate, Because dismissal is not an 

available sanction under the FAA Rules of Practice, the Respondent's request for dismissal was 

'This April 13 1 2016 dt·det' enoneous!y idenrfFied the date of the Motion Confe.rence as "April 16, 2016:' (April 

!J, 2016 Order, r,) This is a clerical error, gi-ven thatthe Conference was set lbr Apr!\ 13, 1016 (se{[, March 30, 

10 f 6 Order Selting Motion Conference). and the April l J, 20 I 6 Order was filed and served on the _same day the 

purl ies convened fm the Motion Conference (see, Apri! I}. 20 16 Order, l, and CerL o t-Service ). 

2 During lhe- April ! 3, 2016 Motion Conference, the parties were offered the opportunity to supplement f1e record 

either in writing or by oral argument. The FAA did not tile a written supplement but did pre_sent oral argument at the 

May 5, 2016 Motion Conference, (April 13,2016 Tr. 32. 6-19,) 

Page 2 of 41 

.. ··- ~ •........ '··-················~---·---···-···--
denied on February 22,20164 However, as part of its Motion the Respondent alternatively 

requested "sanctions as the Comi deems proper and just." (Motion, 20.) 

During the April 13,2016 Motion Conference, the Respondent was directed to specify 

what altemate sanctions it was requesting. ln its May 2, 2016 Supplement (Supp. 7) and during 

the May 5, 2016 Motion Conference, the Respondent asserted that the appropriate alternate 

sanction was to strike the FAA's pleadings. (IVlay 5, 2016 Tr. 9.) 

Based on the materials submitted, the Respondent has alleged FAA wrongdoing from 

September 2012 through December 2014, which included all cbree distinct time periods involved 

in the fAA's safety enforcement action: 

1. lnitiallnvestigation (September 20, 20P- March 7. 2013) 

a. "Polluted'' the perceptions and testimony of Dr. Long, a third-party witness (Mot. 

9-13): and 

b. Failed to preserve reievarrt documental)' evidence. 

2. Formal Civil Penaltv Action (March 8. 7013- December 4. 2014) 

a. Failed to preserve relevant documentary evidence. 

3. Fom1al Adjudication (November 26. )0\4- Presenf)5 

a. Obstructed discovery by contacting Dr. Long, a third pmiy witness, and 

encouraging him and his attorney to object to or avoid responding to the 

Respondent's lawfi.•lly obtained Subpoena (Mol. 4-3); and 

b. Failed to provide full discovery pursuant to court orders6 (Mot. 1-2; 5-6): and 

4 See February 22.2016 Order Denying Rt;s.pondent's Motion to Dismiss a.nd Reserv-ing Ruling on Othe-r Sane! ions_, 

' During the April 13, 2016 and rvlay 5, 2016 Motion Conferences. the Cc•urt identiFied the adjudicatiol1 period as 

starting on December 4, 20 14; the date the Complain! was served< HOwever, the ad.iudicatlon period 1n civil penahy 

actions is triggered by the Respondem filing a Request for Hearing, which occurred on November 26, 2014. This is 

discussed In more detail infra. at Ill. Date of Commenc-ement ofCivi! Penalty Adion. § (C). 

6 Specifically, [he April 7._ 20 J S Order Setting Lltigation Dates and Procedmes~ and, the Septe-mber 1, 20 I 5 Ordt::r 

Granting the Mol ion to Amend, Continuing the November 20 _!5 Hearing to September 20 16,. and Granting Other 

Relief 

Page 3 of 41 

',,_ ~~- ~-"-' ,,,,,,~ ~----~, 
c. Deliberately vv'ilhheld relevant, disclosable, documentary evidence in its 

possession. 

()\!lot. 3-4. 6-9} 

C. Short Summary ofF AA 's Response 

ln Response to the Motion, the FAA assetted that it had not engaged in most of the 

behavior that the Respondent has alleged. Alternatively it argued that even if it were proved that 

it failed to follow some ofits own internal guidelines for investigation of a civil penalty case .. or 

that it failed to preserve certain evidence, such error(s) would not be gmunds tor sanctions or 

dismissaL (Resp., l.) 

Some of the Respondem's most serious allegations imolved e-mails authored by FAA 

Inspector Yancey Rushton, who served as the primary investigator in the case. (Resp. Ex. A, 1.) 

The FAA denied that Inspector Rushton had engaged in any improper condttct or 

communications, either while discussing the allegations with Dr, Long, a third-party witness or 

when gathet~ng testimonial evidence from Dr. Long, {April n, 2016 Tr. 25, !0-13.) The FAA 

argued that lnspector Rushton's destruction of his e-mail cotTespondence with Dr. Long had 

been part of a ''routine" purge of e-mail (Resp. 5), and should not be deemed problematic. since 

these e,mails "did not add something to the evidence.'' (Resp, Ex. A~ :5.) In response to 

allegations that it bad failed to disclose evidence pursuant to cotui order, or obstructed c.he 

Respondent's attempt to gather evidence via subpoena, the FAA asserted that it had done neither. 

II. LEGAL AUTHORITY FOR SANCTIONS 

In partial support for altemate sanctions, the Respondent cited to multiple sections in the 

FAA's Rules of Practice, 14 C.F.R. Part 13, Subpart G ("FAA Rules"). The FAA Rules 

specifically address the imposition of sanctions in four (4) different sections7 The three (3) 

sections applicable to the Motion for alternate sanctions are briefly outlined below, with some 

necessary discussion tegarding several substantive errors contained in tvvo (2) of the sections, 

In one of these fOur (4) sections, the FAA Rules limit the Court's sanction authority. l4 C.F.R. 9 13.205(b), This 

section was thoroughly addressed in lhe February 22. 2016 Order Denying Respondent's Motion to Di!imi:ss and 

Reserving Ruling on Other Sanctions, and wHl not be repeat.ed here. 

Page 4 of 41 
A. Sanctions forlmproperly Signed and Filed Documents (14 C.F.R. § 13.207) 

Pursuant to 14 C.F.R. § I 3.207(a), all filed docwnents must be signed. The signing of any 

document is a certitlcation8 that the docnment has been read and is in compliance wrth the 11Jies 

of practice. 14 C.F.R. § l3.207(a). if any document is signed or certitled in violation of 14 

C.F.R. § !3.207, then six (6) different sanctions may be considered tor imposition. 14 C .F. K § 

1 J .207(c)(l )-(6) 

R Sanctions for Violating .Joint Discovery Schedule (14 C.F.R. § 13,217) 

Pursuant to 14 C.F.R. § 13.217(1), a party who fails to comply with a joint discovery 

schedule is subject to sanctions. It should be noted, however, that the rule in this section is 

problematic, because it states in part that a party should "comply with a motion" or with a 

"discovery request": 

(t) Sanctions for failure to comply with joint schedule. !fa party fails to comply 

with the administrative law judge's order establishing a joint schedule, the 

administrative law judge may direct that party to comp(v with a moiion {l"ic} to 

di.;·covery requesl [1iL) or, llmited to the extent of the party'sfailure to comply 

Hiilh a 1no1ion [>ic) or discovery request, the administrative law judge may _ .. 

[sanctions listed]. 

14 C.F.R. § 13.217(f) (emphasis added). 

lt is well established that a Motion is a lummi request by a party in litigation, made to the 

co uri, seeking certain cotn1-ordered relief. See, e.g., 14 CF.R. § 1 3.218; Fed. R. Civ. 1'. 7(b)( 1) 

I" A request for a court order must be made by motion ... ''). The motion itself does not carry 

authoritative weight, nor may it bind an opposing party in any way. Steven Baicker-Mc Kee. et 

al.. Federal Civil Rules Handbook, 332 (West Publishing 2012) ("A motion is a requesc to the 

court usually submitted in writing, that seeks an order.") However, a cowt order issued a tier 

consideriEg and ruling upon a 1notion does catry binding authority. 

JJ The signing pany is certi-t).·ing that s/he has made ''reasonable inquiry" about the doctJmt:i1t(s), and "[O !he best or 

lhal person's knO\vledge, int"ixmati-on, and belief' the document(s) are: •lco_nslstent'. wilh the rules of practice (-i·1 

C"F.R, § 13.207(b)(! )); warranted by existing Jaw or by a good faith argument about existing law ( !4- CJ'.R. ~ 

13.207(b)(2)), and nor made for any improper purpose~ 14 C.FK § 13.207(b)(3). 

Page 5 of 41 
Thus, the language of 14 CF.R. § \3.2 I 7(f) contains error. Fortunately, in FAA civi I 

penalty cases, the Federal Rules-and case law construing them-may be used as guidance when 

nceded.9 ln the instant case, the language of 14 C.F.R. § 13.21 7(f) appears to synthesize cenai n 

components of both Federal Rule of Civil Procedure 16 ("Rule 16''), 10 and Federal Rule ot'Civil 

Procedure 37 ("Rule 37"). 11 A comparison ofthe similar languagc 12 between 14 CFR. § 

I 3.217(f) and Rules 16 and 37 demonstrate that the most reasonable interpretation of the 

problematic text of 14 C.F.R. § 13.217(i) is as follows: 

(!) Sanctionsforfailwe IQ comply wilhjoint schedule. If a party fails to com pi) 

with the administrative Jawj udge 's order establishing a joint schedule, the 

administrative law judge may direct that party to eomply with a motion to 

discovery request or, limited to tbe extent of the party's failure to comply with a 

metietH>l' discovery request or order directing discovery, the administrative law 

judge may ... [sanctions listed]. 

I 4 C.F.R, § 13.217(1) (emphasis and alterations added) 

Utilizing this interpretation, if a violation of 14 C.F.R. § 13.217 is found, rbe Court may 

impose four (4) different sanctions: 

1. Su·ike that portion of a party's pleadings; 

2. Preclude prehcaring or discovery motions by that patty; 

3. Preclude admission ofthat portion of a party's evidence at the hearing, or 

4. Preclude that portion of the testimony ofthat party's witnesses at the hearing. 

·~When the PAA promLdgated the }{ules of Practice in !990, Ehe FAA wante-d !Cl rnalmain a "less formal'. 

adrninisrratlve process. 55 Fed. Reg. 2756:) (Jul. J, 1990) (Discussion of Final Rule). As a result+ h declined to adopt 

as controlling the Federal Rules of Civil Ptocedure. The FAA explained, however, lhat its 0\vn rules regarding 

dlscovery, although not as detailed as the Federal Ru-les, \Vere "already rollghly para!!eL ... ttoJ the Federal Rules:' 

and lhus adding additional discovery safeguards, as urged by commentators, was unnecessary. ill. The FAA also 

noted that the Fe-deral Rules~and case law construing them-would be "instructive" in administrative dvi! penalry 

cases. /d, 

;u R.uie 16 provides- guidance on setting up pre~trial dbcovery schedules. 

~I Rule 3 7 identifies various sanctions for instances or diE>covery nonacomp!iance. 

nIt should be rmted Lhat there are some-diFferences between 14 CF.R. § ; J_217(f) and RuleS 16 and 37. For 

example (not inclusive): Rule ! 6 requires the federal district court to consult \vith the parties and, "'as soon as 

practicable'· set a discovery schedule. Fed. R. Civ. P, 16(b)( I ){2). In cpnt'rast, tl1e FAA's Rules l!llow:s f:Jr two 

options~ the Court may through its. presidir,g authority direct the parties ro confer and submit.£~ joint schedule, t "l 

C.F.R. § 13.205, or the pad:ies may voluntarily agree to cOnfer without prior e:outt direclive and joinlly file a 

proposed discovery schedule for court appcoval. 14 C.FJC § 13.217(a)'(dl. 

Page 6 of41 
14C.F.R. § J3.217(f){l)-(4). 

Further, any sanction(s), ifimposed,\J should be "limited to the extent ofthe party's 

failure to comply." 14 C.F.R. § l3.217(f)(l). 

C. Sanctions for Failure to Comply with Discovery Orders (14 C.F.R. § 13.220) 

if no joint discovery schedule is entered in a case, then pursuant to 14 C. F. R. § 13.220, 

sanctions may be imposed in those instances when a party fails to act pursuant to a discovery 

order, or when a pariy fails to comply with a court's order to compel discovery. 14 14 C.F.R. § 

lJ.220(n). 

However, the language in this section is again problematic, and echoes the problen1s in 

14 C.F.R. § 13.217(f) as discussed above. 

(n) Failure io comply with a discovery order or order to compel. !fa party fails to 

comply with a discovery order or an order to compel. the administrative law 

judge, limited to the extent afthe party's failure to comply with the discovery 

order or m01ion ro compel. may .. , 

14 C.F.R. § J3.220(n) (emphasis added). 

Thus, the discussion and analysis regarding the language in 14 C.F.R. § 13.217 is also 

applicable here. As a result, the problematic language of 14 C.F.R. § l3.220(n) should be 

similarly interpreted to read: ''to the extent of the party's 'failure to comply with the discovery 

order or order to compel." Thereafter, the four (4) sanctions identified in 14 C.F.R. § I J .220(n) 

are identical to the sane lions listed in 14 C.F.R. 0 1 3.217tf), and should also be '·limited to the 

extent of the party's failure to comply." 14 C.F.R. § 13.217(f';( 1). 

:-,The fi:wr {4) sanc.lions listed inS 13. 2 !7(0 are identical ro tJ)o&e listed in ~13.220(n). These sancr.lons mirror 

some of the sanctions identitied in both Ruf::J 16 and Rule 37, \-Vhicll are utilized vvhen a party engages in discovery 

failures or non~compliance with cowtorders. Fed. R. Civ, P. l6(f) • .37(b)~(,} 

~ The provisions of f4 C.F.R. § 13.220 appear to synthesize major components of Rule 37 as follows (not 

inclusive): J) failing to respond adequately to a discovery· reque~t, Fed. R. C!v. P. 37(a); 2) tailing. to comply wllh a 

court order directing discovery_, Fed. R. C[v. P_. 37(b); 3) failing to disclose or supplenr~nt discovery. Fed, R. Civ. P. 

3 7 ( c_ )~ and :H failing_ to _attend a deposit \on. prOvide E!nS\Ners to i.nterrog,atorles, or altow physical inspection, Fed. H., 

Civ, P. 37 {d( 

Page 7 of 41 
IU. DATE OF COMMENCEMENT OF ClVlL PENAL TV ACTION 

Pat1 of the Respondent's Motion alleges improper conduct and communications by the 

FAA during its initial investigation stage, which occurred prior lO the tiling of both the FAA ·s 

March 8. 2013 Notice of Proposed Civil Penalty ("NPCP") and December 15, 2014 Complaint. 

As part of its Response, the FAA generally asserted that discovery withheld or lost prior to 

"litigation commence[ment]" could not "form the basis for sanctions." (Resp. L) The FAA did 

not identify, however, what date it considered the '"litigation" to have "commenced" for the 

purpose of sanction review, nm·did it identify !he date that it had issued its NPCP. (Resp. 1-18.) 

As a result, the various phases of this case, and when the;se phases "commenced" will first be 

identified, followed by a brief discussion of the scope of court oversight. 

A. September 20, 2012- FAA investigation 

Pursuant to FAA Order 2!50.3B, Chapter 2.3(e), an FAA civil penalty investigation must 

begin "promptly." In the instant case, the alleged September 18, 2012 incident was brought to the 

FAA's attention via a September 19,2012 telephone message leti by Mr. Bob Kent, an employee 

of a business entitled Aviation Services Gwup. (Mot. Ex. C., Sept. 20, 2012 Record of 

Conversation). The next day, on September 20,2012, FAA Inspector Rushton promptly began 

the FAA icvestigation when he met with Mr. Kent, pursuant to F A.A. Order 2150.3B, Chapter 

) '(. "J 17 ~.J .. ~ .. 

B. March 8, 1013- Formal Civil Penalty Action 

The "commencement" of a fom1al FAA civil penalty action has previously been 

addressed by the FAA Administrator, 19 and has also been discussed by this Court in other 

17 That sa111e day, nn September 20,2012, Inspector Rushton ~lso mel with Mr. Justin M. Lollar, the co~pi1or of 

Respondent 1s September l8, 1012 flight (Reply, Ex. A<) The next day: on September 2 L 2012, Inspector Rushton 

met with Dr. Long, a third party witness. (Mot. Exs. J and R; Reply; Ex. A). 

19 Prior to 1992y the FAA Administrator interpreted the term "con-unenced" in civil penalty proceedings1 contained in 

28 U.S.C § 2462. to mean the issuance of a nortce of proposed c.!vll'penalty (''NPCP"). See 55 Fed. Re-g. 27548. 

27552 (Discussion of Final Rule). Then in 1992, when Congress enacted 49 U.S.C. § 46301 (d)(7)(C), it failed to 

reference [he fAA's interpretation of''commence.cf' ln the statute Instead, it utilized the word '~initiated." 

Nevertheless, since 1992, the Administrator has inrerpreted t·he word "initimecf' in 49 U,S.C. § 4630-1 (d)(7)(C"J to 

mean the same as ~'cl}mmenced'- -ihat is, to mean the issllance of a NPCP, See Royal A l'ionics S_ystems, Inc.. f/\A 

Order No. 2002c6 at 7-8 (Apr. 16,2002); and fligh Exposure. Inc., FAA Order No. 2003-7 at 8 (Sept. 12.20031. 

Page 8 of 41 
cases

20 In essence, to ensure compliance with the FAA's two year limitations period ( 14 CF.R. 

§ 13.208(d)), the issuance of a NPCP. and not the complaint, is the'·critical event" in 

comn1encing a fbn11al civil penalty proce.eding. 21 

ln the instant case, the Respondent did not include a copy of the NPCP in its Motion. 

Neither party specifically identified the date that the FAA had issued its NPCP. (Resp. 1 -18.) 

However, the Respondent did attach a copy of the Final Notice of Proposed Civil Penalty 

("FNPCP") to its November 26.2014 Request for Hearing. Tl1is FNPCP indicated that the FAA 

had issued its NPCP on March 8, 2013. (Req. 2.) As a result, the date the formal civil penalty 

action ··commenced"was March 8, 2013. 

C. November 26, Z0l4- Formal Adjudication 

While the FA.i'\.'s fmmal civil penalty action is initiated by issuing a NPCP (see, \4 

C. F.R. § l3.!6(t) and 14 C.F.R. § 13.208), the tor mal adjudication period is triggered when a 

Respondent exercises its right to adjudication by filing a request i'or hearing. See. Paz Aviation, 

Docket No. FAA~2014-0807, Order Denying the Respondent's Motions to Dismiss (Sept. I l\, 

2015)("the complaint is filed as a responsive document. wholly dependent on a respondent 

requesting a hearing. See 14 C.F.R. § !3.16(i)). Once a request for hearing is tiled, the matter is 

referred for adjudication. See, Woolperl LLC Docket No. FAA-10!5-0211, Order Denying the 

FAA's Motion to Dismiss (April30, 2015). 

In the instant case, on November 26,2014, the Respondent filed a Request for Hearing 

("Request") with the FAA Hearing Docket, pursuant to 14 C.F.R. § \3.16(h). Upon receipt of the 

Request., the FAA had twenty (20) days to file the original an<' one copy of its Complaint with 

the rAA Hearing Docket. 14 C.F.R. §13.208(a). On December4, 2014the FAA served its 

20 See, e.g., ,HL·:si:ssippi Air Express, LLC Docket No. FAA-2014-0866, Order Graming the ResponrJent'·s J\,1orioll to 

Dismiss ; ..\ct1on (July 22, 20 15)~ and, Paz Aviation, Docket No. FAA-20 !4-0807., Order Denying-the Respondent's 

Motions w Dismiss (Sept. 18, 20 15). 

-:!I See Royal Avionics Systems, Inc., FAA Order No. 20(j2-6 at 7-8 (Apr, 16, 2002)~ High Exposure, Inc·., FAA Order 

No. 2003·7 a! 8 (Sept. 12, 2003); 55 Fed. Reg. 27548,27553 (Jul. 3, 1990) (Discussion of Final Rule) (codified at 

14 c.r,R. s 13.208(d)). 

Page 9 of41 
Complaint. On December 10,2014- (i.e., fourteen (14) days after tbe Request was filed) the FAA 

liled a copy of its Complaint, along with an attached copy of the Request, with the FAA Hearing 

Docket. 

As a result. the formal adjudication (or ''litigation") phase of this action commenced on 

November 26, 2014, the dare the Respondent filed its Request. 

IV. COURT OVERSIGHT OF ENTIRE ACTION 

It must be emphasized, however, that neither the date the NPCP was issued (i.e. March 8, 

2013) 1101' the date the Respondent filed its Request (i.e .. November 26,201 4) is dispositive in 

determining rhe scope of the court's oversight of the case. 

As briefly discussed above. the two-year limitations period tor issuance of the NPCP in 

civil penahy litigation satistles the FAA's requirements that enforcement action occurs 

expeditiously after the date oflhe alleged violation. This two year period also allows all parties a 

meaningful opportunity to preserve evidence early in the action. 55 FeeL Reg. 27548, 27556 (Jul. 

3, 1990) (Discussion of Final Rule). The FAA's adoption of a two-year statute of limitations to 

ensure expeditious .. litigation commeneemenc~ has nev_er meant~ ho\vever, that the investigation 

period prior Lo isswmce of the NPCP was exempt from court c>versight in civil penalty 

adjudicationsY 55 Fed. Reg. 27548,27556-57 (JuL 3, 1990) (Discussion of Final Rule') (codified 

at 14 C.F.R. § 13.208((!)). See also, Paz Aviation, Docket No. FAA-2014-0807, Order Denying 

the Respondeni's Motions to Dismiss (Sept 18, 2015). 

When setting and explaining the NPCP as the date "commencing" the civil penalty 

action, the FAA Administrator emphasized that both parties had responsibilities that preceded 

both the formal civil penalty action "commencement" date and the adjudication of the case. The 

collection and preservation of evidence during the investigative stages of the case was a mutual 

responsibility for both the FAA and the respondent: 

11 During the April tJ, 20 !6 Motion Conten.<:nce1 the FAA appeared to agree that the- COL~ti's oversight of the civil 

penalty adjudication included the lnvestigalhe smge of the action. (April U. 20! 6 Tr. 23: 13-25:8). 

Page 10 of 41 
Thus, well before legal enforcement action is initiated by the .issuance of a notice 

[i.e,, the NPCPJ the respondent is usually aware of charges ... and that there may 

be a need to preserve evidence regat·ding a particular incident. 

55 Fed. Reg. 27548, 27556 (Jul. 3, 1990) (Discussion of" Final Rule). 

The FAA Administrator also assw·ed the aviation comtmmity and the public that if 

adjudication ofthe action occun·ed, it was the FAA's goal to ensure "a fair adjudication based on 

the facts 1md the law.'' Jd. at 27556. Both judicial and appellate oversight of the civil penalty 

enforcement action would help prevent "overzealous prosecution" and be the ''proof' of faimess 

in FAA civil penalty actions. 55 fed, Reg. 27548,27551 (Jul. 3, !990) (Discussion afFinal 

Rule). The FAA Administrator was "confident" that the independent administrative law judges 

adjudicating civil penalty cases would "exet"cise their discretion appropriately and judiciously to 

ensure fairness to the parties'' in the proceedings. !d. at 27549. Thus, the scope of the court" s 

oversight of the ''fairness" of these proceedings begins at the inception of the civil penalty action 

and continues tmtil an initial decision is issued. 

V, BRIEF OVERVIE\V OF FAIR ADVERSARlAL PROCESS 

As part of its support for sanctions, the Respondent cited to multiple sections in the FAA 

Rules, as well as to language. contained in FAA Order2150.3B (the FAA's published statr 

guidelines). To assist in this discussion, a brief overview of fair adversarial process, utilizing 

material in FAA Order 2!50.3B, the Federal Register; and the American Bar Association's 

('ABA") Model Rules of Professional Conduct ("'Model Rules"), is provided. 

A. FAA's Goat of Fair and Reasonable Process 

Pursuant to FAA Order 2150.3B, Chapter 2.J(g), the FAA's enforcement process~~ 

throughout the proceedjng~must be "fair and reasonable," and ''perceived as fair by those 

subject to regulation" in order to be ••effective." FAA Order 2150J B. Chapter 2.3(gJ. This 

tairness policy includes: 

[T]be right of an apparent violator to be given objective, evenhanded 

consideration of all circumstances surrounding the allegations before final action 

is taken. It also requires good faith efforts to understand the apparent violator's 

position and take it into account. 

Page 11 of 41. 
FAA Order 2150.3B, Chapter 2.3(g). 

B. FAA Goa!- Objective, Unbiased, and Accurate Investigation 

When conducting initial investigations, FAA investigative personnel must "gather. and 

accurately and compleJely report al!jixts.,. i.11 an unbiased and focused manner.'' FAA Order 

21 50.3B, Chapter 2.3(e)(emphasis added). This includes an FAA investigator's responsibility to 

treat the respondent with objectivity and understanding, id., and interview and gatheT evidence 

from witnesses about the respondent /d. at Chapter 4.1 O(c)(l )-(6). During all phases of the 

investigation, the FAA investigator is supposed to exercise '·common sense and good judgment." 

!d. at 4.1. The FAA goal is to conduct investigations that are Eot only designed to be fair. but that 

will also be perceived as fair, even by the accused. FA;\ Order 2150.3B. Chapter 2.3(gl. 

C. FAA Goal- Unbiased Witness Testimony 

FAA investigative personnel are also tasked with obtaining unbiased witness statements. 

Unbiased statements arise from the witness's own perceptions and accurately reflect the 

witness's own be\'iefs and opinions, without manipulation or coaching. For example, according 

to guidance in FAA Order2150.3B, Chapter4.10. if witness statements are obtained by an 

investigator, such statements should identifY the facts the witness "perceived by his or her 

senses:" !d. al4.10(c)(5). While an FAA investigator may assist a witness in drafting and 

ti·aming a statement, the investigator should never ''dictate the content of the statement." !d. at 

4.10(c)(6). The investigator should never discuss any possible sanctions regarding the alleged 

violation(s) with the witness. !d. at 4.10(c)(3). Fwther, an FAA investigator should not promise 

contldentiality to a witness23 ami s/he should affirmatively advise the witness that "any 

information provided may be used as evidence in subsequent enforcement proceedings." !d. at 

4.10(c)(3) 

3 In certain instances confidentiality may be promisee! to a witness, but only after the Investigator has obtained legal 

review and authorization for such a request. FAA Order 2150,38, Chapter 4.10 (c)(J). 

Page 12 of 41 
D. 1\'Iodel Rules- Fairness Requires Restraint in Speech 

The FAA Administrator's published guidelines and goals for conducting fair 

investigations anu obtaining unbiase<l witness testimony are almost i<lenlical ro those 

responsibilities identified by the ABA in its Model Rules for lawyers and their staffs. As 

explained by ABA. lVJodel Rule 3.8, fairness in adversarial proceedings requires restraint in 

speech while a case is pending, especially by government prosecutors and staff: 24 

( J'c except for statements that are necessary to inform the public of the nmw·c and 

cxt.cn1 of-llw _prosecutor's action and that senT a legitimate 1~1\·\i tnforc-cm_enl 

purpD:oe. [the proc;ecutor should] re!i·ain lh1111 making cxlrajudiciul cummenls llmt 

hav" a substantial likelihood of heighkning public condemnation of the accusecl . 

, . and exercise reasonabk care to prevent inv.:.·st:lgators. 1m.v enforct1ncnt 

personnel ernp1oyees or other persons assisting or uss·ociated \Vitl1 the prnsccutpr 

in a l'rirninal case- from muking: an extm_iudkia[ stalen·Q('JH lhal tht' prosecutor 

\\ould be prohibiied fmm making under !iuk 3.6 or this Ruk. 

Model Rules of Profl Conduct r. 3.8 (Am. Bar Ass'n 1983). 

Tbis emphasis on prosecutorial restraint, in order to ensnre fairness to the accused. 

extends to all persons working with the government prosecutor: 

!d. 

[The prosecutor should also] exercise reasonable care to prevent investigators, law 

enforcement personnel. employees or other persons assisting or associated with the 

prosecutor in a criminal case from making an extrajudicial statement that the prosecutor 

would be prohibited from making under Rule 3.6 or this Rule. 

E. Model Rules- Fairness Requires Prohibiting Misconduct 

In addition. according to the Model Rules, fairness in litigation proceedings is <echieved 

in part by identifying and prohibiting misconduct: 

[ 1] The procedure or the advers<1ry system contemph11es that Lhe evidence i11 a 

,;a~e is tu he marshalled competitively by the contending parties. fair competition 

in the ndvcrsm<!' system is secured h;-· prohibitions again.s1 ckstructinn l)r 

2

A \Vhlle RLle 3.8 is specificallY addressed to criminal actions, it is the Model Rule that mos[ cle-arly identilles and 

t:xplains th€.· underlying and well-established principles of fairness and-objectivity in speech that govern all 

governmen1 prosecutions. 

Page 13 of41 
com:ealment of evidence. improperly influencing \Vitnesses~ obstructive tactics in 

discovery procedure, and tbc like. 

Model Rules of Prof! Conduct r. JA cmt. (Am. Bar Ass'n l '183). 

VI. ALLEGATION OF ''POLLUTING" THE WITNESS 

For this and all subseqLrem sections, the evidence and arguments by both parties have 

been fully considered. However, because of the volume of materials submilled, only certain 

matters will be discussed. 

As part of its Motion, the Respondent asserted that the I'AA has "polluted" witnesses, 

including DL Long, a third party witness. (Mot., ll.) ln support of this assertion, the Respondent 

presented written e-mail communications, preserv¢d by Dr. Long, 25 which codilied some of his 

eurly communications with Inspector Rushton during the initial investigation of this case (i.e., 

September 21, 2012 through October 13, 2012), During this time Inspector Rushton w£cs seeking 

Dr. Long's cooperation in the FAA's investigation and attempting to persuade Dr. Long to 

provide mulripic tc.stimonial statements about the Respondent's alleged September 18,2012 

11ight. (Mol. 9-13.) Inspector Rushton was also instructing Dr. Long not to talk lo, or share 

information with. the Respondent. 

Did !he F'AA improperly "pollute" the percepti!ms and testimony of De Long, a 

thi:rd-party witness? YES. 

Beginning on September 21, 2012, inspector Rushton had multiple conversations with 

Dr. Long, and also exchanged multiple e-mails with him. The first conversation took place at Dr. 

Long's ofnce on September 21. 2012. 26 (MoL, Ex. J, Sept. 21,2012 email.) According to Or. 

15 These e-m all communications were obtained by a Subpoena and Rider served on Dr. Lorig by the Respondent. 

The Respondent's assertion that lhe FAA i111properly attempted to obstTuct and prevent tl1is. discovery is addressed 

infra, at IX. Allegation of Discovery Obstruction, 

16 Dr. Long's records did not include nqres from in person meetings or telephone- conversations, although the. 

preserved emai!s did occasionaHy reference that such meetings and calls had taken place. 

Page 14 of41 
Long's recovered e-mails,27 

a second conversation occurred at Inspector Rushton's otli.ce 

between September 21, 20!2 and October 3, 20!2. Dr. Long provided his first statement to 

Inspector Rushton on October!, 2012 (Mot. Ex. J, Oct. 1, 2012), but lnspec10r Rushton declined 

it, He made no note that it had been proffered. He failed to preserve it in the FAA's investigative 

file. lR 

Inspector Rushton then encouraged Dr. Long to read rep01is on airplane crashes as he 

anempted w persuade Dr. Long to provide a different statement tor the FAA investigative file. 

By October 3, 2012, Dr. Long had conversed with Inspector Rushton several times, had read the 

materials29 Inspector Rushton had given to him, and was echoing Inspector Rushton's 

condemnation of the Respondent (e.g.,"] have zero tole1·ancc forw·hat's happening at BFC''). 

(Mot., Ex. J, Oct. 3, 2012 3:37pm e-maiL) 

On October 3. 2012, Inspector Rushton asked Dr. Lollg ior a second statement to show 

(as Inspector Rushton characterized it) how the Respondent had tried ''to hide the nature of the 

t1ighl." (Mot, Ex. J, Oct. 3, 2012, 7:49am e-mail). As part of this e-mail request, Inspector 

Rushton advised Dr. Long that ''this is not a one time mistake [by the Respondent]. This is a 

systemic issue and it needs to be corrected." (ld.) 

Shortly thereafter, Inspector Rushton asked Dr. Long to provide a copy of the "fake 

offer" given to Dr. Long by the Respondent. (Mot., Ex. J, Oct. 3, 20!2, 8:21am e-mail). That 

same day, Dr. Long provided a sbot1 supplemental statement. (Mot., Ex. J, Oct. 3, 2012 Dr. Long 

n According lO the em ails., lnspector Rus.htl)l1l1ltt vvith Dr. Long several ti.mcs, and als.o calle-d hin1 on the 

re\ephone. These meetings and phone- cans were not recorded~ and the record remains incomplete: regarding tbe 

substance of such coh11iltin !cations. 

?B During the May 5. 2.01-6 Motion Confetence, the FAA initially excused thls lack of presetvation in the fAA'S 

invesllgative file by asserting no harm had occun·ed, because- the miss-ing October 1, 2012 Statement had slrnply 

been a duplicate oflhe subsel]Uently preserved October 12,2012 Stateme-nt. When asked \Vhy a second statement 

\Vas necessary, if it was. o-nly a "duplicate" Of the first stateinent. the FAA proffered that the October r_, 20 I 2 

Swtement had been an '"Incomplete duplicate" of the Oclober 12. 2.012 Statement. (May 5, 20! 6 Tr. 98:4-12) 

l'.l lt is uncle~r from the record whethenhe "FAA report~) (440.16 KB) that Inspector Rushton e-mai!ed to Dr. Long 

on October l, 2012 (Mot., Ex. J, Oct. 1, 20 16~ 1:23pm e-maH ·and attad11Tte.nt) was pa11 of the "atrplarw craS.h1

' 

material that lnspector Rushton re-commended to Dr. Long to read (MoL Ex. J. Oct 3, 2016,3:37 pm e-mail), Olsomething cls.e. 

Page 15 of 41 
Statement). Upon receipt ofthis supplemental statement, Inspector Rushton e-mailed Dr. Long. 

and continued to disparage the Respondent: 

We all make mistakes, bul p~•rposeful deception that pJls others [sic]live;; and asseu; at 

risk will not be tolerated. T11at is what has occurred here. This was not an innocent case 

of a misunderstanding. BFC knew what they were doing .... 

Mot., Ex . .T, Oct. 3, 2012,3:33 pm e-mail. 

On October 5,2012, Inspector Rushton e-mailed Dr. Long and .identified for him spec inc 

fact evidence the FAA needed in order to help prove the accusations against the Respondent. 

(lV[ot., Ex. J, Oet. 5, 2016 2:15pm e-maiL) Dr. Long immediately responded by e-mail with shon 

answers, responsive to the information Inspector Rushton sought. (Mot., Ex. J, OCl. 3, 2016 2:50 

pm and 2:56pm e-mails.) However, the EIR diselosed to the Respondent makes no mention of 

this exchange. Instead, the EIR contains a one-page document entitled ''Investigation Notes.·· 

(Mot., Ex. C, Oct. 3, 2016.) The Investigation Notes identify ''Alan Long" as the witness, and 

contains a handwritten statement- but these "Notes'' were no\ signed or dated by Dr. Long, and 

do not identify who actually wrote the materiaL (hi.) 

ln his multiple e-muils with 'Jr. Long seeking a ''compkte" statement. Inspector Rushton 

repeatedly maligned and vilitled the Respondent. For cx<~mple (not inclusive), Inspector Rushton 

told Dr. Long: 

l, The Respondent was willing to "burn . , . mutilate, , , and injure" innocent people 

solely in pursuit of"·the almighty dollar." (MoL, I 0-ll; Ex. J, Oct. 3, 2016, J :33 pm 

e-mail); 

2. The Respondent's actions were "careless," "disrespectful," "self-centered," 

"calculated," and "deceitful." (Mot. 12: Ex. J, Oct 12, 20 I 6 .. I I: l 0 am e-mail): 

J. The Respondent was a repeat offender (i.e., "this is not his first rodeo"). (Mot.. Ex. J. 

(Mot., Ex. J, Oct. 12,2016, )0:57 arn email); 

4. The Respondent had acted wrongly and willfully towardstlr. Long ("He played 'V'ith 

your assets and your family's safety"). (MoL Ex. I, Oct. 12, 2016, l 0:57am e-mail); 

Page 16 of 41 
5. The Respondent needed to be"takendown."(Mo\, Ex.J, Oct. 12,2016, 10:57 am email): 

6. The Respondent Wmild repeat the oftense(s) if the Respondent was allowed to 

"walk". (Mot., Ex. J, Oct. 12,2016, 10:57 am e-mail); 

7. Dr. Long needed to think about his "wife," "kids," "pt·actice," and "family" and "help 

stop" the Respondent (Mot., Ex. J, Oct. 3, 2016, 8;21 am e-mail). 

On October 11,2012. Inspector Rushton e-mailed Dr. Long again, in a follow-up to an 

unrecorded conversation he had had the previous day (i.e., October 10, 2012) with both Dr. Long 

and an FAA supervisor (unnamed). (Mm., Ex. J, Oct. 1 1, 2016, 3:08pm email). ln this October 

11,2012 e-mail, Inspector Rushton informed Dr. Long that Dr. Long's three (3) prior statements 

(not further identified) were lacking in "key details." (!d.) As a result, he asked Dr. Long to 

answer thirteen (13) additional and specill.c fact questions in writing, based on the unrecorded 

Octo bet- I 0, 2012 conversation between Dr. Long and the two fAA employees, because ''the 

better case I can make on paper, the more likely be will settle and all of this will be closed." (hi.) 

The next day, on October 12,2012, Dr. Long provided a fourth (4'") statement. Inspector 

Rushton accepted this fourth statement as "relevant" to the proof of the FAA "s case, and added it 

to the FAA's investigative. nte. (Mot., Ex. J, Oct 12, 2016, 6:04pm e-mail and attached 

Statement). 

1. FAA "s "No Harm" and Other A.rgumems 

In response to this recovered e-mail evidence, the FAA acknowledged that Inspector 

Rushton may not have kept "an open mind" as recommended by FAA Order 2150.3 8, but 

argued Umt this did not give rise to a sanctionable offense (M<.y 5, 2016 Tr. 89:9-16), and that 

"no harm'' had occurred to anyone. (Aprill3, 2016 Tr. 25:7-8.) Alternatively, the FAA blamed 

the Respondent for Inspector Rushton's communications, and minimized and excused Inspector 

Rushton's conduct and statements. 

For example, according to the FAA, it was the Respondent's fault that the FAA '·had to 

engage" in these e-mail eommunicadons with Dr. Long. (Resp. 11. fn. 4). The FAA fu11her 

Page 17 of 41 
arg~ed that Inspector R~sbton's e-mail communications were necessary in order to "encourage" 

DL Long to give a ''full accounting" of his experience with the Respondent. (!d.). Thus, 

Inspector Rushton's multiple e-mail communications to Dr. Long should simply be viewed as 

"asking a witness to provide a full and complete statement of events." (Resp. 12.) Inspector 

Rushton echoed this position in his testimonial statement, by describing his e-mails as "theemails where I encourage Dr, Long to tell the whole truth__ _" (Ex. A 1 ~[5.) 

This Court expressed concem abou± the FAA's arguments, during both the April 13, 2016 

and May 5, 2016 Motion Conferences. In response, the fAA argued: 1) the Court had sua 

spunle mised a curnpletely new issue when it referenced the issue uf ''witness polluting'· (as 

alleged by the Respondent) as witness tampering,33 and, 2) the Court's use of the word 

''tampering" was erroneous, because no criminal witness tampering had taken place, 

2. Witness Polluting Did Occur 

This Court agrees that Inspector Rushton did not engage in acts amounting to cnminal 

wituess tampering. However, the fact that tlte polluting ur tamperiug of Dr. Long did not rise lo 

a level of a chargeable crime"' is not dispositive of the issue. Dr. Long's preserved emails 

demonstrate that Inspector Rushton engaged in witness tampering. He deliberately and 

persistently condemned and vilified the Respondent in an attempt to shape Dr. Long·s 

perceptions, obtain his cooperation, and in±luence his testimony about the Respondent's alleged 

September 18, 20 !2 violation. He also provided information to Dr. Long to try and shape his 

testimony. Based on Dr. Long's resoonses, Inspector Rushton was successful in all those efforts. 

ln his zeal to "catch" a possible safety oflender, lnspector Rushton abandoned the FAA 

Administrator's public promise thm the FAA's safety enforcement program would be 

""Tamper l.s !cgaUy defined ir'1 parl as follows: ·Tamper. To meddle so m; lo alter atMng. especial~v to ma-ke illegaL 

c~orrupting ur pervening changes; as, to tamper with a document or a lext~ to inteJ1'ere improper~)i.' 10 Jn(!dd(e:-lo 

busy on;,;•se(j rashly.,." Tamperr B\ack~s Law Dictionary. (5th ed. l979)(emphasis added). In some instances. 

\'I! I! ness tampering catl be $0 egtcgious (e,g.: murder, kidnap, bribery, etc.) thar it .will result in !'edera! crimin.al 

char·ges. 18 USC.§ 1511(2014). 

~t• In some instances, witness tampering carr be so egregious (e.g .. mmdec "idnap, bribe:y etc.) rhm It wi·:r re_suh in 

federa! criminal charges. 18 U5.C § I 512 (2014). 

Page 18 of 41 
administered fairly <md objectively37 He did not conduct his investigation with any "good faith" 

or "even-handed consideration" of the Respondent's position or circumstances. Instead, 

Inspector Rushton rushed to judgment, and repeatedly expressed condemningjudgn1ents and 

opinions about the Respondent with Dr. Long. 38 Inspector Rushton persuaded Dr. LOtcg to share 

his vilification of the Respondent, and to provide infonnation as shaped and directed by the 

FAA. This is a "polluting·· of, or tampering with, a witness. It is deliberately altering and 

shaping tbe perceptions and testimcny of a potential witness to suit one's own goals. Such 

tampering destroys the credibility and value of any testimony such witness might offer. 

lu short, Inspector Rushton Lampered with the percept:ons, beliefs. and testimony or Dr. 

Long, a third party witness. He destroyed both the value of Dr. Long as a credible witness, and 

also demonstrated his own lack of objectivity and fairness. 

Inspector Rushton's statements, as preserved by Dr. Long, are prohibited by both FAA 

Order 2150.38 and the ABA Model Rules 45 lnspec\Or Rushton's conduct not only destroyed Dr. 

l~ong's potential as an evidentiary witness, but it undermined any belieC, perception, or hope that 

the Respondent Cor the public) might have bad that the Respondent would be treated fairly in !his 

particular enforcement proccss

46 Through Inspector Rushton, the FAA's conduct was improper. 

harmful, and should not be excused or minimized. Sanctions should be imposed . 

.n While Inspector Rushton. did occas.lonally identify due process standard3 as applicable ( Mot. .. Ex. J, Oct. 1_1, 

2016, J :2.7 pm e·muil ("we also live in /\merlctl. where people are innocen!.. firGt (thnnkfully) and the b-urden or proof 

is on me not tbem''), he did no[ role-model or implement these standards lnllis invosiigaUon process. 

-(~It is we!! established thaL such conduct is prohibited. An attorney and ll!s staff must vigilanlly practice restrain! in 

.any trial proceeding (civil or criminal), in order to ensure fairness to the opposing party and counsel. While a c:ase is 

pending, neither a lawyer nor any me.mber of his staffsbou!'d "state a personal opinion a~ to the justness :JC a cause. 

rhe credibility of a witness, for] the culpability of a civil litigant" Model Rules of Prof' I Conduct r. 3.4(e) . 

..;s The ABA M-ode! Ru!es specifically recognizes and discusses the '\miquc dangers of improper e.xtrajudicia! 

statemems" tCwgovernmem.prosecutors and their investigators. and provides specific direction on how w avoid such 

error. See. e g., Model Code 3.8. Comment 6. hll' (:\·~lml:le. i11 ;nv~-l-11m~·nt p~v-;-.:•.::.ill_lortc,. a pnr-1~'....-.ll\t)l" i" \<.b.ked '-1 1:h 

lh~: l"c:.;'SpOn~i!_lj I it:.- "1 u t:.\er·c!::)c· n.::Jsundhk care" 10 pn . .:l·el-~i hu(h lu\-\ .. yt.-r~ md nun-LJH-') ere; -·,-\-;_-.;I qin_;.: u1· a:.;:,oc iJl!..:'d · 

\\"ilh (·he prl:>St:.cutc"~r·':; o!Tict:· "l"com ITii.lldng impn1pBr cxr.rctiudkial sUllel11(nls. 1.:.'-Vt'il wh\:.'n >Udl p!:'I'SO!l:'. tlrl' nN unda 

\be direct Sl!pervbinn ot.thc pms.e.cmor." [\4oJd Rnles. of l)rofl Co-nduct r 3.X, crni. h. 

11' As noted by the Respondent (Supp. 5), Inspector Rushron's condemnation of the Respondent, as represented in his 

e-~mail communications. wolild have also influenced, overtly at!dsubliminally, an;mne else in the FAA or elsewhere 

with vvhom ''lt::. shared his views or who read his. e-mail:s or investigative cc-mmunications. 

Page 19 of 41 
VII. INITIAL lNH~RFERENCE \'I'ITH RESPONDENT'S RIGHT TO DISCOVERY 

The Respondent generally aileged the FAA had engaged in discovery obstruction 

throughout the proceedings_ Althottgh Jiol specifically highlighted by the Respondent in its 

Motion. the email records preserved by Dr. Long and produced by the Respondent in support of 

sanctions also demonstrated that Inspector Rushton promised Dr. Long cemtin contldentiality 

protections if he helped the FAA, and also insuucted Dr. Long not to talk to, or share 

information with, the Respondent. 

As noted earlier, the FAA's investigation began on September 20, 2016, and Dr. Long 

was interviewed for the first time by Inspector Rushton on September 21, 2016. As noted above_ 

during this critical time Inspector R~hton was shaping Dr. Long's opinions and perceptions." as 

well as promising to "keep" Dr. Long ''out" of the proceeding. (Mot Ex. J. Oct 3_ 2016. 8:21am 

e-maiL) 

Although Inspector Rushton testified in 2016 that he had never offered any promise of 

confidentiality to Dr. Long (Resp. Ex. A, 2 ~ 6), the Respondent's 2012 evidence from Dr. Long 

demonstrates that Inspector Rushton had indeed made such a promise: 

Even if yot; signed something, 1 give you my word that you will be left out of this _ .! 

know you don't want to be involved and l will keep you out of this[.] 

Mot., Ex. J, Oct. 3, 2012 e-mail. 

One day later, on October 4, 2012, Inspector Rushton asked Dr. Long to "keep all of this 

to yourself to belp us.'' (Mot Ex. J, Oct. 4, 2016, 3:36pm email.) He also told Dr. Long that the 

Respondent "does not need to know what we know." (!d.) Tn response, that same day, Dr. Long 

~~ Inspector Rushton's negative opinions about the Respondent may have been shared w-ith Dr. Long_ as early as their 

llrst meeting. It is note\Vorthy that immediately aRer Dr: Long1s first conversation with Inspector Rushton about the--

Respondent on September 2l, 2016, Dr. Long asked InspeCtor RushlQn to recommend "some people at KBHivl'' 

who could C.e "good alternatives" (i.e., o_ther rhan the Respondent's business) \vhere Dr. Long could take flight 

lessons and hangar his airplane. (Mot. Ex. J_\ Sept. 21,2016, l :41 pm e.mail.) 

Page 20 of 41 
confirmed with Inspector Rushton that he would refuse to speak to the Respondent about the 

FAA investigation!8 (Mot. Ex. J, Oct. 4, 2016,3:53 pm e-maiL) 

Six (6) days later, on OctOber 10, 2012, Inspector Rushton sent a Letter ofinvestigation 

("LOl") to the Respondent, stating that an FAA investigation was pending regarding the alleged 

September 18, 2012 flight. (Mot.. Ex. C.) This LOl was the Respondent's nrst notit1cation that 

an FAA investigation had already c0mmenced, and that the Respondent would need to begin 

preserving evidence for future litigation. 49 

Upon receipt of the LOI, the Respondent attempted to discover and preserve evidence. by 

contacting Dr. Long and asking to speak to him about the FAA's allegations. (MoL Ex. J, Oct. 4, 

20!6, 3:53pm e-maiL) Dr. Long did not respond to the Respondent. Instead, Dr. Long 

forwarded the Respondent's email to Inspector Rushton (Mot Ex. J,. Oct 12,2016, 9:27am 

email), and reaffirmed to Inspector Rushton that he would not speak to the Respondent. (MoL 

Ex. J, Oct J 2, 2016, 9:30am emaiL) 

Inspector Rushton responded immediately. (Mot Ex. J, Oct. 12,2016, !0:57pm e-mail.) 

Although Inspector Rushton first told Dr. Long to "do whatever you need,'' he then urged Dr. 

Long "to remember" that the Respondent was guilty and knew "the hammer is about to fall''(ld.) 

Inspector Rushton encouraged Dr. Long to believe that the Respondent had deliberately 

endangered Dr. Long's wife and family. (I d.) The Respondent had "played" with sal'ety ol Dr 

Long's fa'Tlily, because the Respondent was greedy and selfish and guilty. Ud.) 

This is about greed, and a complete lack of concern for others and safety all in the 

interests of making a buck. He proved to me that he doesn't care and that's why he needs 

to be taken down. 

Mot Ex. J, Oct. 12,2016, 10:57 pm e-mail. 

~~Or. Lan_g's ernail records only address the initial inve.stigatlon period \t\ 2012. Howeve-r, it appears from rhc case 

record that Dr. Long maintained his silence, and prod_uced his email correspondence fOr the Respondent In 

Novernber 20! 5 only after: I) the Respondent obtained and served Dr. Long with a subpoena <li'td ddeJ"; and 2) Dr_. 

Long had consl1lte.d with multipl-e attorneys about whether or how he shm1!d respond to the Respondent's subpoeita . 

. \()See, in the Matter of Royal Avionics Sys., Inc.,. CP99WP0021, 2002 WL 1042303, m * 3 (Apr. 15, 2002) 

("'Although a letter of investigation does not sat_isfy the limitation pe:rlod sel forth in 49 U .. S.C. S 4630 i(d)(7)(C) ur 

in 14 CF.R. § l3.208(d). it does nor!Fy a respondent that prese:rvlng evldenc.e may become necessary."·' (citing /11 

rile Maller of Wede, FAA Order No. 97-20 at 8-9 (May 23, 1997)). 

Page 21 of 41 
Inspector Rushton also subtly wamed Dr. Long that there could be negative 

consequences if Dr. Long spoke to the Respondent: 

Do what you want and I don't care, but understand this, this is not his i1rst rodeo. If he 

walks he will do this again to somebody else just like you. 

ld 

Thirteen (13) minutes later, Inspector Rushton senl a second email to Dr. Long, asserting 

that he was "just trying to protect" Dr. Long and everyone else. He then characterized the 

Respondent as a guilty party who was "careless .. disrespectful and self-eentere{i" and "calculated 

and deeeitful.'' (Mot., Ex. J, Oct. 12, 2016, ll: 10 pm email), The next day Dr. Long emailed 

Inspector Rushton and assured him: "We're all cool. l totally agree with everything in your 

emails and voicemai!."50 (Mot, Ex, J, Oct. 13,2016,6:13 pm email). 

As demonstrated by Dr. Long's preserved records, Inspector Rushton interfered with the 

Respondent's right to discovery during the initial investigation. He precluded the Respondent 

from obtaining evidence by advising Dr, Long to keep his potential testimony about the 

Respondent secret (Mot. 11; Ex. J, Oct. 4, 2016,3:36 am email), and successfully persuading Dr. 

Long to refuse to speak to the RespcndenL (!d.) 

In addition to the direct harm caused to the Respondent in this pa~iicular case, Inspector 

Rushton's conduct is in direct contlicl with the FAA Administrator's published goals of fairness 

tor the civil penalty enforcement program. The FAA in this case has failed to abide by the 

fundamental concept, well-established in American jurisprudence that an accused person is 

innocent until proven otherwise, and that such person has the right of access to discovery. This 

concept was tlDt only adopted by the FAA Administrator when he establishe,d I he safety 

su Neither Inspector Rushton nor Dr. Long kept a telephone record log t·egardi-ng_ Inspector Rushtonjs voicemai! 

message. It must be presumed, on beba\fufthe Respondent, that the voicemail message contained simlJar 

condemnations of the Respfmdent and warnings aboui: communicating v,·fth the Respondeni. 

Page 22 of41 

---~---·----~------·-- -- "' ~---------~- -
enforcement program and created i!s guidelines. it is also codit]ed in both FAA Order 2150.3B 

and in the ABA Model Rules. 52 Sanctions should be imposed. 

Vlll. ALLEGATION OF PHYSICAL EVIDENCE DESTRUCTION 

The Respondent's allegation of physical evidence destruction 5

4 spans both the initial 

investigation time period (September 20, 2012- March 7, 20 13) and the enforcement action time 

period (Marcb 8, 2013- December4, 2014). In its Motion, the Respondent alleged that the FAA 

destroyed relevant documentary evidence when Inspector Rushton failed lo preserve his e-mail 

communications with Dr. Long, which included (but is not limited to) earlier witness staten1ents 

provided by Dr. Long. 

In response, the FAA acknowledged that Inspector Rushton had destroyed and/or lost 

cettain electronic investigative material. including all (or most) of Inspector Rushton's e-mail 

CotTespondence with DL Long. (Resp. 2). The FAA first argued that Inspector Rushton s e-mail 

communications were not relevant, and so their destruction or loss was not relevant. 

Altematively, the FAA argued that even if Inspector Rushton's e-mail communications 

were relevant to the case, their destruction was inadvertent. As part of this argument, Inspector 

Rushton testified that he had routinely and periodically deleted electronic information fi·om his 

local computer database before he transfer,-ed to the FAA's Denver, Colorado Field Office in the 

"f3Jl of2013" because of size limits. (Resp. Ex. A, I ~ 4.) He thought hc.had saved all 

''relevant" materiaL (Resp. Ex./\.). The FAA argued ·that no sanctions should be imposed, 

because the deletion of the electronic evidence had been routine and inadvertent 

A. FAA's Goal • Pnset•vation of Relevant Evidence 

According to the FAA's published enforcement guidelines, when a safety enforcement 

action is initiated, the FAA office conducting the investigation "obtains an Enforcement 

52 See. e,g,, Model Rules of Prof' I Conduc-r r. 3.8 ..:mt. (''[1] .'\ ;~n·~:.,.,'-·culur lw:j tlK' rr~·:-;jwt~sibilily \. 1i' ~1 rnin•.,.,lvl· ~~t­

\u:;ti;.;c ill'll.i ill)\ '-iirr1pl;-lhat. oi' an udvl'!Ctltt:. T'his rc::;pnmibilily Ci'HTit.:::-~ w~th il :-;l')e-cirr~· iJh!i::;~Hinn.s 1u St.:t: that tlw 

de-kndaru i;.; <:1\.:o..:~Jt"dcd prot:~.:;:Jurat jltstic-:,., ._.) 

54 This accusation of destroyed evidence i~ often referred to as "spoliadon" of evidence .. Jay-E. Grenig & JeffreyS. 

Kinsler, Federal Civil Discovety and Disdosure, § 16: I (3d ed. 201 5). 

Page 23 of 41 
Investigative Report" ("EIR"), which "initiates" the EIS database record 5

5 for the case. (FAA 

Order 2150.3B, Chapter 9.3(a).) The EIR is the critical "means for documenting, assembling, 

organizing, and presenting all evidence and other relevant infommtion obtained during an 

investigation." FAA Order 2150.3B, Chapter 8. l. An FAA investigator is required to "gather all 

material, relevant evidence that either proves or disproves the potential violation."' FAA Order 

2l50.3B, Chapter 4.2(a). 

Pursuant to FAA Order 2150·.3B, the ElR is typically opened within 72 hours from the 

date the vrolation becomes known. (Jd. at 4.2(a).) Thereafter, data entlies in a civil penalty action 

"must be made within 48 hours oftl~e occurrence of the event" (!d. at 9.3(u)), and maintained for 

a minimum period of five (5) years after the civ[l penalty has been paid (or waived). FA A Order 

2150.3 B, Chapter 2. l O(b )(2). In addition, during all phases of the investigation. the FAA 

investigator is supposed to exercise ·'common sense and good judgment."' (FAA Order 2150.3 B. 

Chapter4. l .) 

B. Preservation Even Before Formal Litigation Commences 

The FAA's preservation guidelines durrng the initial investigation, as outlined in FAA 

Order 215DJ B, to !lows well-established litigation practice: 

The clmy to preserve evidenee may attach even beforeactuallrtigmion has 

t-ornmenccd. '"Once- a party reasonably anticipates l-itigation, it n1usr suspend its 

rLllltine document retention/destruction policy and put in place a 'litigation hold' 

to ·ensure Ute preservation ol' relevam documents." lf a party does not put rn place 

a ''litig(ttion hold~"' they dsk sanctions if any dcctronic e-vidence relevant to the 

litigation is deleted or destroyed sometimes even without culpability. 

126 Am. Jur. Proof of Facts 3d 1 (Originally published in 2012) (footnote omitted). 

This requrrement for preserl'ation and disclosure of evidence ·'applies to all potemially 

rdevanl iLerns'· known to a party, "\vhether or not supportive of1t::; contentions in the case:· Jay 

'·\ Purs:uaht to FAA Order 2150.JB, Chapter 9.1 and 2(a)_, Lhe FAA's Entbrcemcnt Information System c·E!S") is an 

automated. ,-'nationwide" information managemenr system. It !s the F AA~s "primary dmaba::~c" for "tracking 

!nfOnmttion about enforcement ac:tlons.t' Jd. AH FAA organi-za!ions have access to the ElS (FAA Order 2! SOJB, 

Chapter9. 2-(d)). All FAA offices. "[hilt have regulatory responsibilities" must use the EIS data record keeping 

system. (!d. at l(a),) 

Page Z4 of 41 
E. Grenig & Jdrrey S. KinskL. Federal Cidl DiscoveJ)' and Di.ldO.I'I!re. § 1:1516:1 (3d cd. 

20151. 

ft cannot be overemphasized that any writing or orher mauer relating tv a ease, which is 

either in the possession or control of an adversary. is subject to disclosure. The type of material 

subject to preservation and disclosure "must be liberally construed.'' '27 C.J.S. 2d § l 04 (2011). 

This obligation of a party to preserve and disclose what it has under its control is "based on 

ancient principles of equity," and is intended to assist in the fa~r administration of justice. !d. 

C. Did the FAA fail to preserve relevant documentary evidence? YES. 

Based on the FAA's published record-keeping guidelines, the ElR database for this ease 

should ha~c been opened (at the latest) within 72 hours ofSeptembet· 20,2012. Thereafter. 

Inspector Rushton should have uploaded his notes, email communications, witness statements. 

and other evidentiat·y documentation into the EIR within 48 hours after engaging in any 

investigative action on the case. TI1is iucludes any investigative communications with Dr. Long 

or other potential witnesses. 

HDwever. in the instant case, this did not happen. During the IVIay 5. 2016 Moti,)n 

Conference the FAA orally explained that in actual practice. the FAA Field Oftlce does not 

utilize the EIR system. Instead, it opens anlnvestigativc File (''!file"), into which an inspectorwho is not a lawyer- determines what qualifies as "relevant"' evidence to preserve in the !File 

fm future litigation. (May 5. 2016 Tr. 51: 15-l 8.) 

This !File is then potentially reviewed by multiple FAA employees (unidentified). 

During the investigation or review process, documents might be added to, or selectively deleted 

tram. tbe !File, If the case is ultimately refetTed to FA/\ counsel for tbnnal civil penalty 

enforcement action. a separate Enfo:·cement Investigative Report ("EIR") is opened. This 

separate E!R, which is utilized by counsel during the adjudication phase of the case. might (or 

might not) include all of the preserved !File materiaL (May 5, 2016 Tr. 49:2-22.) 

Page 25 of 41 
The FAA further orally explained during the May 5, 2016 Motion Conference that the 

FAA counsel did not exercise oversight regarding what evidence was preserved by the Field 

Office investigators% Thus, iflnspector Rushton did not gather and preserve "all evidence and 

other relevant intonnation obtained during an investigation" (FAA Order 2150.3B, Chapter 8.1 ). 

the FAA counsel Would be unaware of such omission. (May 5, 2016 Tr. 52: 1-18.) Inspector 

Rushton confirmed this when be explained why he didn't immediately tell FAA counsel about 

the missing e-mail evidence: 

8. On August 24,2015 attorney Stevenson sent me an e-mail asking if I had 

documents on this case (other than what was in the ElR). I called him and told 

him that! did not have any d8cmnents. I told him this because l did not have any 

documents. 

(Resp. Ex A, 2 ~11 8 and 9.) 

In the instant case, Inspector Rushton maintained multiple e-mails separately on his 

office computer. (Resp. 2.) He "rominely deleted'' emails, making ''hard copies'· only of those 

emails he detennined to be "significant" in !he investigation. (Jd.) Jn response to the FAA 

counsel's inquiry at1er the Respondent filed its :Motion, Inspector Rushton testified that he 

thought he had saved all the "relevant" communications from Dr. Long. However, Inspector 

Rushton acknowledged that he may have mistakenly not saved some of the ''relevant" e-mails he 

exchanged with Dr. Long 5 7 He thought he. bad printed out those e-mails and saved them, but he 

was not sure what had happened anc why they were not in the Field Office's !File. (Resp. Ex. A, 

1 ,! I 0.) 

Among other arguments, the FAA asserted that Inspector Rushton's destmction of 

evidence was part of a routine deletion, because of email storage limitations with an old 

computer program. This argmnent by the FAA was unpersuasive. 

56 This internal disconnect between FAA counsel and lhe; FAA investigative staff appears to deviate from 

recoti1mended practice in fair adVersaria! proceedings. See. e.g .. l\·todd 1\t; !es of Pmi''l Condud 1·. ·ut cnL 6 :md 

Fn :1 7_ :..:~rpr;_L 

~~I! is notcwonhy that neither Inspector Rushton nor FAA counsel ever specified which, if any. ofDL Long's 

pteserv-ed ernails lnspec:tor Rushton thought he had saved-as "relevaht" to the ca;;e 

Page 26 of 41 
All parties to the litigation are required to preserve ... evidence, Therefore ... once the 

plaintiff had access to the relevant infonnation, the plaintiff needs to take aflinnative 

steps to preserve the information and cannot blame the defendant if it is destroyed. 

126 Am. Jur. ProofofFacts 3d 1 (Originally published in2012) 

The FAA had the responsibility, just as the respondent has dming the investigatioil phase, 

to preserve relevant data tor litigation. In the Matter ofRoyal Avionics Sys .. Tnc., CP99WP0021, 

2002 WL 1042303, at *3 (F.A.A. Apr. 15, 2002)("Aithough a letter of investigaiion does not 

satisfy the limitation period set forth in49 U.S.C. § 46301(d)(7)(C) or in 14 C.F.R. § 13.208ld), 

it does notify a respondent that preserving evidence may become necessary" citing In the Mailer 

o(W('I'le, FAA Order No. 97-20 at 8-9 (May 23, 1997)). Tile F.AA has a variety of options and 

resoHrces to ensure retention of litigation data, but it failed to preserve il in this case. 

The FAA also argued that the destroyed e-mails were not relevant, because they did no! 

directly prove or disprove the allegations against the Respondent. This argument was also not 

persuasive. In litigation, "relevance" is broadly con,trued. It is anyihing that ''has c.ny tcmlencv 

to make a fact nwrc or less probable" Fed. It Fvid. 41llia). It is anything lhul ··;,of' cunsequcncc 

in deteemining the action." Id. al 401 (b). Relevant evidence also includes ''background" 

information, which may help understand disputed issues. (/d., Advisory Committee Notes. 1972 

Proposed Rules). 1)nkss otherwise limited by court orcier. the scope of discovety includes any 

non-pri\· ileged maUcr that is relevanl ro any p-arty· s clairn or dcfen::;e, 1 4 C. F._R. ~ 13. 2?.0( !::' )~ .\{"L" 

also, Fed. R. C:iv. P. 26(b)(1 ). Jftherc is some logical connection, either directly or by inl'erencc 

between the evidence and a l'ad lobe proved. the evidence is relevant. Svn.·. Uoyds Ins. Co. L 

A/arlin. SS5 S.W.}d 816.822 (Tcx.App.-Dallas l'-l93, no writ). 

[A]nyone who anticipate~ being a party or i~ a puny lll a lawsuit must not destroy 

tmique, relevant evidence that might be useful to an adversary. While: a litigant is 

under no duty to keep or retain every document in its possession ... it is under a 

duty to preserve what it knows. or reasonably should kn<)". is relevant in the 

aclion. is reasonably ealculaled to lead to tl1e discovery of admissible evidence. is 

reasonably likely to be requested during discovery and/or is the subject of~ 

pending discovery request. 

126 Am. Jm. ProofofFacts 3d l (Originally published in 2012) 

Page 27 of 41 
I"hu~. any FAA e-mail communications with a potential witness. which involve any 

discus~ion, inquiry~ statement_, or re~ponsc regarding. the investigation or the pco1:)-k involved in 

the investigation. is relevant and should be preserved. This duty of preservation is particularly 

important ,,Vht'-11 the individual tasked \Nith preserving the evidence is neither a \a\vyer nor 1egal1) 

trained to understand the broad scope of evidentiary value (bo!l1 inculpatory anJ e~culp:uc>ry) 

that any such communications might hold. It is critical to preserve such evidence lor litigation. 

especially when an opposing ]Xtrly might seek [o address the motivations. potential bias, and/M 

credibility of 8 potential witness. 11M preservation responsibility is a cornerstone of our judicial 

system, whose goal is to lind the truth through honest and orderly production of evidence under 

established discovery rules. Grenig &Kinsler, supra, § 1:1 I , 

Inspector Rushton's lack of training is cvidc;nt when he stales that he didn t realize his 

mulliple and substantive C"mail communications with Dr. Long might be imponant: 

I cannot be sure of what actually happened, but at the lime l deleted these emails, 

pmbobly eirher did not realize !needed to keep them, or thought I had already 

prinlelllln-:m out, and then deleted them not realizing that there was no hardcopy. 

Resp., Att. A, Declaration of Yancey Ruston, 2, ~ 10 (italics added).) 

5. I have reviewed rhe portiDns of the emails between Dr. Long and I that are 

printed in the "Motion for Sanctions." I did not include these e-mails as Ttems 

of Proof in the EIR because, in my judgment thee-mails where l encourage 

Dr. Long to tell the whole truth about the flight dido 't prove or disprove 

anything about the case, and Dr. Long's initial writ!en statement was 

incomplete and duplicative of his more complete, later written statement. We 

·do not include every single e-mail exchange as Items of Proof in our ElRs .. 

only those that add something to the evidence. 

(Resp. Ex A, 1 ~ 5.) ;

9 

[n the instam case, given the evidence Sltbmitted, this Coun must find that Inspector 

Rushton selectively preserved in the !File only material that strengthened the case he was 

pursuing against the Respondent and that he believed "seemed important'' lo the FAA's proof of 

59 Based on [he record, it [s_ unknown what ·:::::mmal_l .communications (if any) Inspector Ru;~hton ultimately did 

preserve and lnclude In the EIR a5 ;'relevant' materiaL 

Page 28 of 41 
the case. (Resp. Ex A, I 4]2.) Thus, Inspector Rushton l'a,iled to identify and preserve all relevant 

evidc:nce, particttlarly exculpatory or background information that might have been helpful to the 

opposing side. See, e.g., ABA Model Code Rules 3.4 and 53. Therefore, it must be asswned on 

behalf of the Respondent~the disadvantaged pat1y~that Inspector Rushton may have 

selectively withheld other relevant investigative infom1ation from the EIR as welL which is still 

unknown or which may never be recovered. Sanctions should be imposed. 

IX. ALLEGATION OF DISCOVERY OBSTRUCTION 

1l1e Respondent's allegation of discovery obstruction occurs during the formal 

adjudication time period (December 5, 2014- present). In its Motion, the Respondent alleged 

that the "behavior and conduct" of the FAA counsel "completely compromised the integtity of 

the case." (Mot, J l .) As part of the suppmi for this allegation, the Respondent focused on e-mail 

correspondence, preserved by Dr. Long, in which the FAA counsel initially blamed the 

Respondent for a delay in the discovery process, inferred wr011gdoing by the Respondent in 

<Jbtaining the subpoena and advised Dr. Long to consider hem he might avoid disclosing 

information requested by the Respondent's subpoena. 

For example, on August 21, 2015, the FAA attorney notified Dr: Long via e-mail that 

even though discovery '"teclmically ends today" tbe parties were going to continue to "provide 

each other with infonnation past the close of discovery," I MoL, Ex. M, August 21, 2016 4: J 0 pm 

e-mail.) As part ofthis e-mail notification, the FAA attorney specitleally faulted the Respondent 

for this delayed and ongoi1ig discovery exchange. (ld.) However. as the record in this case 

re11ects, this fauh-iinding of the Respondent was not accurate,60 

nor was il necessary. 

Approximately one month later, on September 23,2015, the FAA Hearing Docket Clerk 

properly issued a Civil Penalty Subpoena to Dr. Long at the R~spondent's request pursuant to 14 

(.IJ lh:.' record demohstrates that-shortly after the FAA sent its August21, 2-016 enrai\, lhis Court found that both 

parties had mutually abandoned the Apri I 7. 20 t 5 Order Setting Litigatlon Dates and Pr<1cedurcs schedul-;;: for period 

of time. The !'ecord also demonstrates that priort.o the FAA ~s Aug.ust 2\,2015 e-mail to Dr. Long, the Respondei1t 

had sen1ed responses to the FAA ··s multiple disc;overy requests on July U. 2015. August l, 20.15, and August 19: 

2015. However, as of August 21. 2015, It ·was the "FAA who still had not yet re~ponded to the Respondt-lil's April 

20, 20 i 4 discovery reque~ts. Se~, e.g.l September I, 2015 Order Granting the Motion to Amend, Continuing rhe 

November 2015 Hearing to- September 20 16~ and Granting Other Relief 

Page 29 of 41 
CF.R. § l3.228(a). This Subpoena included a Rider. requesting Dr. Long to produce for the 

Respondent all relevant documentation in his possession. (Mot., Ex. H.) The subpoena did not 

provide a specific date for Dr. Long to respond to rhe Rider. (Jd.) 

Seven (71 days later, on September 30,2016, the FAA attorney initiated contact (viaemail) clirectly with Dr. Long. In this September 30, 20 !6 e-mail, the FAA attorney notified Dr. 

Long tha~ the Respondent had requested a subpoena. The F.I-\A attomey then opined that the 

Respondent was acting improperly in seeking the subpoena. The FAA attorney recommended to 

Dr. Long that he and/or his attomey might look for ways to avoid answering the subpoena on 

mu!iiple grounds: 

IF and when you receive such a subpoena, please contact me (or have your 

attorney contact me). The requests appear to be improper in whole or in part in 

that we are past the point in this litigation where new discovery requests have 

been made. and in that the requests appear to seek documentation that is not 

relevant lO this case. You and your attorney may, of course, be able to identify 

other problems with regards to this request. If you reeeive the subpoena, you will 

be r~guired to comply with it w1less something is filed with the comt seeking 

relieftrom the subpoena. 

(Mot., E;<. N, Sept. 30, 2015 7:58am e-mail.) 

After this communication, the record reflects that the FAA did nol file any motwns with 

this Court to quash or limit the subpoena pursuant to 14 C.F.R. § 1 3.228(b). Approximately one 

month later. on October 27,2015, Dr. Long reported to FAA counsel (pursuant to the PAA 

attorney's September 30, 2016 e-mail request) that he had received the Respondem's subpoena 

He anached a copy of the subpoena, and opined that the Respondent was asking for ''a lot or 

information." (Mot.. Ex. K: Oct 27,2015 10:00 am e-mail). 

That same dav, on October 27, 2015, the FAA attoroev responded to Dr. Long. The FAA - . -

attorney criticized the Respondent's action in obtaining the subpoena, and re-recommended that 

Dr. Long or his attorney consider avoiding answering the subpoena on multiple grounds: 

1 would like to speak with you and/or your attomey (at your option) about 

responding to this subpoena. As 1 mentioned the last time we interacted, 

discovery was closed in this case (and was closed even before Respondent 

obtained the subpoena, which [ note is dated almost a month before it was 

served). iV!any oftbe questions seem overbroad as well, but I can't speak as to 

Page30 of 41 
how burdensome they would be withom your input An objection andior motion 

to quash to SO!Tre or all of the requests can come from my office or directly from . . you (presumably through your attomey). Please give me a call (and/or have your 

attorney give me a call) and we can discuss whatn,sponse (objection, motion, 

compliance, or other"·1se) is appropriate. 

(Mot.. Ex. K. Oct. 27.2016, l '20 p.m .. FAA e-maiL) 

Dr. Long immediately responded. and confim1ed that his attorney ("Jack") would contact 

the FAA attorney that same day, on October 27, 2015. (1\'lot., Ex. K, Oct. 17. 2016 1 :23p.m. Dr. 

Long e-maiL) The record does not reflect whether such contact occutTed, and if it did, what 

information was exchanged. Seven (7) days later. Dr. Long's attorney (Mr. Monk, II!) served the 

Respondent with all documents as demanded in the Respondent's Subpoena and Rider. (Mot., 

Ex. l.) 

In response to this allegation of discovery obstruction, the FAA asscJted that it had done 

nothing improper. The FAA assened that the Respondent's request and service of the subpoe!la 

on Dr. Long was untimely, and in violation of the Court's discovery deadlines. It argued that the 

"deadline to issue subpoenas" was June 19, 2015. (Resp. 4.) The FAA argued that it had acted to 

ensure compliance with the court's discovery orders. It also argued that it had every right to 

provide advice to its own witnesses. 

Did the FAA engage in diswvcry obstruction? Yes; 

First, it should be noted that during the FAA's email exchanges with Dr. Long. the F A/1 

continued :o accuse and blame the Respondent As noted earlier, this is not only unnecessary, it 

is contrary to both the FAA Administrator's published goals of fairness in administering the 

program, as well as to well-established ABA smndards tor ensuring due process faimess in 

adv~rsaria\. litigation practice. 

Second, as discussed during both the April !3, 2016 and :vlay 5, 2016 Motion 

Conferences, this Court mmnot agree with th~ FAA's assertion that the August 21. 2012 deadline 

for exchanging discovery, established by the April 7, 2015 Order (Order. 3 4i 9), remained in 

effect at!er the issuance of the September l, 2015 Order. Rather. the September 1, 2015 Order 

continued the bearing for ten ( 1 0) months (i.e., from November 18, 2015 to September 13. 2016 I 

Page 31 of 41 
to allow the parties to complete discovery exchange, file and argue any needed pre-hearing 

motions, and to propose a new litigation plan regarding any outstanding, detlcient discovery 

issues and other matters.61 As noted by this Court on May 5. 2016, the parties still had not filed 

any joint litigation plan, although the FAA did flle an untimely unilateral plan, which the Coun 

has not adopted. 

Third, the FAA's argument that thtc Respondent's subpoena fell outside the court's June 

19, 2015 deadline to "issue subpoenas" (Resp. 5) was a bwad misreading of the April 7, 2015 

Order. In fact, the June 19, 2015 deadline was provided for the part1es to "issue subpoenas and/or 

mutually arrange for !he depusitium ofwimesses and experts'' prior to the November 18, 2015 

Hearing. (April 7, 2015 Order, 3 ~ 9 (italics added)). Even ifthe FAA's assumption that this 

April 7, 2015 deposition deadline survived as part ofthe September 1, 2015 Order was correct it 

was inapplicable to the issue here. 

Fourth, this Court would disagree that the FAA's obligation to comply with a coui"l order 

allowed it to encourage third party witnesses to avoid responding to a la\\fully issued subpoena. 

IF the FAA believed thatthe Respondent had violated an August 21, 20 I 5 discovery deadline 

when the Respondent asked the FAA Hearing Docket Clerk to issue the September 23. 2015 

subpoena, the FAA had a responsibility to first informally discuss its concerns with the 

Respondent. If discussion with the Respondent did not resolve the matter, then the FAA should 

lmve immediately filed an objection or motion, with suppm1ing fact and legal authority, with this 

Court. 

Fifth, the FAA's discovery deadline arguments are a red belTing, because these 

arguments miss the actual issue. The Respondent's service of a subpoena on Dr. Long was not a 

violation of a court discovery deadline. lt was not an untimely anempt to schedule a deposition 

with Dr. Long. The subpoen& was not directed to the FAA or any employee or agent of the FAA. 

The subpoe!1a was not attempting to compel the FAA to·'disgorgc whatever !acts'' it had its 

"'possession·· as pan of a timed discovery exchange. Hickman''· Taylor. 319 U.S. 495. 507 

(1947). 

'" Septen1ber I, 2015 Order, 6~ 6: and Augu•t31, 2016 Tr. at64: 13-17 and 70: 1-3. 

Page 32 of 41 
Instead, the Respondent was engaged in independent investigation and fact gathering 

fl-om two (2) third patty witnesses, Or. Long and Aviation Services Group. 62 The Respondent· s 

subpoena for Dr. Long was obtained from the Hearing Docket Clerk on September 23,2015, 

which was only three (3) weeks after the Court had continued the November 2015 Hearing to 

September 2016, and directed the parties to complete their discovery 63 The subpoena was served 

on Dr. Long on October 2!, 2015-approximately eleven (11) months beh1re the newly set 

September 13, 2016 Hearing, and within the general time (rarne allowed by the September I. 

2015 Order for the parties to complete any discovery prior to the newly set September 2016 

II . 64 ·· eanng. 

The FAA's arguments ignore the fact that independent investigation tmd fact gathering is 

an absolute right held by each party in both civil penalty enforcements and in general federal 

litigationc,s As part of that right, each patty may conduct its own investigation, and dentify its 

own legal theories and arguments. T.~e Work Product Doctrine, 68 Cornell L. Rev. 760, 785 

(1983).66 "(T]he adversary system fosters a competitive relationship that motivates each party to 

marshal all the law and J'acls beneficial to its case." (!d.) 

Ideally_ as the fAA !\drninistrator has recognized, '

7 each party's independent 

investigation should start early to allow for full and early disclosure of material to the opposing 

side. See also, Diversified I!?dustries, Inc" v. Meredilh, 572 F.2d 596. 604 (8th Cir.1977) 

("Prudent pat1ies anticipate litigation. and begin preparation prior to the time suit is formally 

62 The Respondent had obtained and served two (2) subpaen_as. The subpoena served oh Aviation Services Gr\Hlfl, 

and its response to the subpo-ena, was not at issue in this motion. 

'' See September t. 20 15 Ordel'. 

~~· 1 A:s noted by this Court o-n May 5, 10 !6, the parti-~s •vere directed to file a joint proposed p!'an on or L1e-i"ore October 

15. 20 15. S(> that a ne~;v jolnl-procedural order !Tiight be. issued, but they titi!ed to do so. (Sept. I. 20 16 Order. 6 ~ 5. ·l 

65 A detaik:C discussion ofthe panies' mutual obligation to conduc-t tactual investigations is contained In A{rh0n!e 

Mainh~nanc.::: and Engine-ering Services, FA!\ Dockel FAA-20 13-0291 (Order Denying Responde-nt's Motion to 

Compel Discovery ofF AA Attorney's Work Product) !All g. 19, 20 14). 

M, The. I'Vork Product Doctrine is a comprchtmsive- study of the history and deve.!opmern ofthe work product 

doctrine anC the application of Rule 26(b)(3), from cnrnmon knv to !983 (the date- of publication). While- nor ful1y 

comprehensive for t.oday's cases in 2016, it remains a valuable resource for practltloners. 

"See, 55 Fed. Reg. 27548,27556 (Jul. 3, 1990) (Discussion of Final Rule), and Fn. 46, supra. 

Poge 33 of 41 
commenced,"), [tis recognized, however, that investigations may be ongoing. In such 

circumstances, the panies have an obligation lo supplement discovery disclosure as soon as 

practicable. 14 § l3.220(i); see also, Fed. R. Civ. Proc. 26(e); and Baicker-McKee, et al., supra, 

at 841. 

In addition, faimess in the adversarial system requires lawyers to not only conduct their 

own independent investigations, but also to affirmatively protect their opponent's right to 

conduct an independent investigation. Model Rules of Prof' I Conduct at r. J.4(a). The ABA 

Model Rules specifically mandate that a la\Vyer "shall not ... connsel or assist" anyone (other 

than a client) to "refrain from voluntarily giving relevant evidence to another party" !d. at r 

3.4(1). There is nothing in the FAA Administrator's published comments, guidelines, and goals 

that is inconsistent with this well-established standard. 

In arguing it has a right to "give advice" to irs own witnesses, the FAA is only partially 

correct. Certainly a lavvyer may render "candid advice" to his own client. Model Rules of Prof! 

Conciuc:t r. 2_ 1 (Am. Bar Ass'n 1983 ). However, the FAA's ability to provide counsel to its own 

clienL or to its own employees, is different tl·om its ability to offer advice to a third party 

witness. In that circumstance, a lawyer must be "'truthful" when interacting with non-clients. hi. 

at r. 4.1 However, _a lawyer should never obstruct the opposing party's access to third pa11y 

witnesses or evidence. 

In the instant case, the FAA tailed to protect and support the Respondent's right to 

independently investigate and JcJct gather. both at the initial and adjudication stages of this 

proceeding, The FAA was absolutely in error when it contacted Dr. Long, a third pmty witness, 

to criticize the Respodnent, imply that the Respondent was engaged in V<TDng-doing, and then 

recommend to Dr. Long and his attorney that they consider avoiding the subpoena by objecting 

to it or moving to quash, based on the multiple grounds offered by FAA counsel in support of 

that purpose. While the FAA's etlorts to obstruct the Respondent fi·om obtaining evidence from 

Dr. Long were not ultimately successful, it was ham1fttl, both to the. Respondent's perception of 

fairness and by the non-compliance with the well-established standards requiring adversarial 

counsel to support fuir proceedings. Sanctions should be imposed. 

Page 34 of 41 
X. ALLEGATIONS OF OTHER DISCOVERY VIOLATIONS 

A. l)id the FAA counsel deliberately withhold relevant, disclosable documents on or 

August24, 2015? Not Proven. 

The Respondent alleged that FAA counsel deliberately withheld physical evidence in his 

possession during the \ormal adjudication time period (December 5. 2014- present). As pan of 

its Motion. the Respondent alleged that even if the FAA counsel had been ignorant of Inspector 

Rushton's earlier destruction ofrelevant evidence, Dr. Long provided his email records to the 

FAA by August 24, 20 J 5, and the FAA failed to disclose those records. (Mot., Ex. M. Dr. 

Long's Aug. 21.2016,5:04 pm email). 

The Respondent's argument regarding what the FAA attorney knew, and/or had in his 

actual possession from Dr. Long between the dates of August 21, 2015 through approximately 

October 27,2015, is based on c.ircumstantial evidence and assumption. In essence, the 

Respondent argued that the FAA's subsequent attempts to persuade Dr. Long to avoid answering 

the subpoena, on both September 30,2015 and October 27,2016, presumptively indicated that 

the FAA knew, as of August24, 2015, the damaging content of Dr. Long's preserved material. 

In response, the FAA asserted that Dr. Long had not disclosed t6 it all the documents that 

Dr. Long possessed. Instead, on or about August24, 2015 Dr. Long had provided only eleven 

(11) documents, seven (7) of which the FAA deemed relevant and disclosed, (Resp. Ex. R l ,15.) 

The FAA's C(>W1sel testified that he did not have knowledge~ or possession of Dr. Long's 

additional materials during tbis time. (Resp. Ex, B, l ~~ JS) Once the FAA attorney received 

the subpoenaed materials from Dr. Long's altomey, he did not read them until he received thl' 

Respondent's Motion tor Sanctions. 

This leaves the question of why Dr. Long had not provided FAA counsel in August2015 

with the volume of materials be produced in response tu the Respondent's sttbpoena in 

November 2015. The Respondent asserts that FAA cow1sel failed to n1ake ''reasonable inql.liry" 

regarding the documents. (Supplement, 5.) There is merit to this argument. 

Based on the FAA counsel's testimony, it appears he ti"amed his August 20 l5 discovery 

request to Dr. Long to limit materiaL Specifically, his request to Dr. Long was narrowly focuse.d 

Page 35 of 41 
on obtaining "emails about the flight" (Resp. Ex. B, 1 ~ 5), instead of his more expansive request 

to [nspector Rushton (and others), asking for "any statements taken about the case, any emails to 

or from Or, Alan Long, and any documents created ... about the case.'' (Resp. Ex. B. I ~ 3; Ex. 

F). Shortly thereafter, Dr. Long spoke with FAA counsel on the telephone about the FAA's 

August 2016 request6B (Resp. Ex. B, I~ 5.) Dr. Long then submitted only eleven(\ 1) pages of 

materiaL Given the record in this case, it is understandable why the Respondent made certain 

assumptions. Hovv·ever, absent any other evidence by the Respondent this Court accepts the 

FAA's coc,nsel's testimonial statement as dispositive on this issue, and the Respondent's 

allegation is deemed not proven, 

B. Did the FAA fail in its duty to obtain and provide complete evidence fnun Dr, 

Long and/or lnspector Rushton? Yes. 

Finally. the Respondent asserted that the FAA had failed in its duty to obtain complete 

evidence from either DL Long or Inspector Rushton after th.is Court had issued two di!Terent 

discovery Orders ~ and the Respondent had propounded multiple discovery requests. 

ln response, the FAA asset1ed that all "'releasable" portions of Inspector Rushton's 

preserved EJR (i.e .. the materials that Inspector Rushton chose to preserve) have twice been 

released to the Respondent: 1) sometime (date unspecified) alter receipt of the Respondent's 

informal March 16, 20 I 3 request (i.e., filed eight (8) days after the issuance of the March 8. 

2013 NPCP); and, 2) on April I 7, 2015 as part of the FAA's discovery response. (Resp. 2.) Jn 

audition, the FAA counsel submitteci a Declaration identifying the August 24, 2015 discovery 

requests he made to both Inspector Rushton and Dr. Long, and the answers he received. (Resp. 

Ex. B, 1 ~~ 3-5.) 

The fact that the FAA counsel provided to the Respondent only certain po11ions of data 

that Inspector Rushton chose to preserve in the E!R is no! dispositive. The FAA is responsible to 

preserve and evidence in its possession for subsequent disclosure. Inspector Rushton failed tn 

65 The record does not inchJde any telephone log regarding lhe contenLofthis conversalion. 

(/!-See, AprH 7, 2015 Order Setting Litigation Date•s and Procednre.s; and, the September l, 2015 Order Granting the 

1\!lotion w Amend, Contin-uing the November 20 I 5 Hearing to September 20 I 6, and Granting Other Re-lief 

Page 36 of 41 
preserve t·elevant evidence. He also failed tc> promptly apprise co(lnsel. at any time prior to being 

advised about the Respondent's November 18, 2015 Motion, which contained all of Dr. Long's 

preserved evidence that the reason he ''did not have any responsive documents" in answer to the 

Respondent's requests for discovery (Resp. Ex. B. 1 '!j 4) was because he had already selectively 

ckstroyed (or lost) such material. 

Thereafter, is not surprising that FAA counseL who was not involved in the FAA's 

collection and preservation of evidence in this case, did not know about all the missing data. 

Thus, FAA counsel was cmaware he needed to press Inspector Rushton for answers about the 

mtssing in!Cumation. and FAA counsel failed to adequately phrase his discovery requests to Dr 

Long to try and obtain such missing material. 

Nevertheless,. the FAA's attorney's ignorance about the data created. collected. and then 

withheld fi·om the EIR by Inspector Rushton does not excuse the FAA from its discovery 

responsibilities. The FAA cannot escape sanctions because it kept its own counsel ignorant of 

its actions. Instead, the FAA attorney's job simply becomes harder. because coLlnsel cannot help 

prevent the hidden perils created in the case by his own client 

In the instant case, the FAA failed in its duty to obtain complete evidence from either 

Inspector Rushton or Dr. Long after this Court issued discovery orders and the Respondent 

propounded multiple discovery requests. Sanctions shollld be imposed. 

XI. SANCTIONS 

The Respondent has requested the imposition of sanctions under multiple FAA Rules. 

based in part on both discovery violations after Court Orders were issued and for generc.l 

discovery "lon-compl iance. 

It is well-established that the imposition of sanctions tor discovery violations or failures 

is "'extremely fact sensitive." Grenig and Kinsler, supra, g 12:1. lt must be done on a case-bycase basis, and rests in the sound discretion of the court. !d. §§ I :96, J 2.3. In order to be 

effective, sanctions must be applied diligently to penaLize those whose conduct wanants such 

action. lei. § 12:1. 

Page 37 of 41 
/ 

In adversariallitigation, sanctions may range from merely drawing an adverse inference 

limn the suppression of the evidence to very serious preclusions, including dismissal of the 

o!Tendingparty's case.

71} /d.§ J:ll;seealso,27 CJ.S. 2d §§ !04-117 (2011). If discovery 

sanctions are imposed, shmi of dismissal of the case, such sanctions are generally not reviewable 

until the end of the proceedings. Grenig & Kinsler, supra,§ 1:96. 

Before awarding sanctions, the court may look at many different factors. including (but 

not limited to) the following: l) whether the offending party acted innocently, carelessly, grossly 

negligent or willfi.tlly; 2) the efficacy oflesser sanctions; 3) the importance ofthe information 

sought in discovery; 4) whether the offending party ever prodtmed the inlormatiun and how; 5) 

the public policy aspects of the litigation; and 6) the remorsefulness of the offending party and/or 

its counsel. Grenig & Kinsler. supra, §12:3, 

In the instant case, the Respondent seeks an order slliking certain pleadings, whcch would 

essentially preclude the FAA from proceeding with its prosecution. Since public policy promotes 

deciding cases on their merits, striking pleadings that WOLlld effectively prec.lude the action 

should be used "cautiously." Jd. § !2:9. However, striking pleadings is:; well-established 

sanction imposed for disobedience of court orders. 71 C.,LS. 2d § 683 (20 l1 ). 

Obviously certain e-mails exchanged between Inspector Rushton and Or, Long, although 

destroyed by Inspector Rushton, have been recovered from Dr. Long via subpoena. If the 

recovery of this data was the only problem, striking the pleadings would not be waJTanted 

because the evidence has been found. See, Fed. R. Civ. P. 37(e); see. a/su, Baicker-Mcf(ec, ct al., 

supra, at 984,87. However, the ultimate recovery this evidence, in response to the Respondent's 

subpoena. is not fully dispositive of the issue. 7

' 

As previously discussed herein, Dr. Long's preserved e-mails demonstrate the following: 

I) the FAA failed to abide by a comerstone tenet of ourjudicial system and its own civil penalty 

7

(' However, as noted earlier herein, the FAA RUles in dvil pe.nalty proceedings do not a !low dismissal of the cnse as 

a sanction. See, supra, Section ILLegal Authority for Sanctions. 

71 Although neither party focused on this issue, !t should be note:d (hat this email recovery occurred three (3) ye-ars 

after the em ails were exchange-d- long after the Respondent) s opportunity [0 gather ~'fresh" and C-Omple-te evidence 

during the investigation phase had expired. 

Page 38 of 41 
enforcement program-to treat an accused fairly and objectively throughout all stages of a 

proceeding;71 2) the FAA willfully influenced and tainted the perceptions and beliefs of Dr< 

Long, a primary witness, in an effort to obtain drunaging evidence against the RespondenL 3) the 

FAA willfully interfered with and blocked the Respondent's right to discovery during the initial 

stages ofthe investigation: 4) the FAA investigator destroyed relevant evidence during both the 

investigative and enforcement stages of the proceeding; 5) the FAA willntlly and persistently 

condemned and disparaged the Respondent from the initial investigation stage through the 

adjudication phase of this action; anti 6) the FAA actively obstructed discovery during the 

adjudication phase of the proceeding when it encouraged DL Long and his attomey to avoid 

answering the Respondent's subpoena< The entire record also demonstrates that the FAA failed 

to take necessary precautions to ensure the. preservation of and the full disclosure of; relevant 

evidence. Taken as a whole, these are not just individual discovery failures in non-compliance 

with Cmut orders and discovery requests, they are a demonstration of willful non-compliance 

with the administration of justice, which should be sanctioned under both Section 13<217( f) and 

Section 13.120(n)< 

This Court is fully aware of the enormity ofthe FAA's task to enforce its regulations, as 

\Veil as the FAA's challenges in working with a wide swath of business partners in the aviation 

community-many of whom either ignorantly or willingly try to avoid compliance witt1 safety 

regulations< lt is a difficult tasL But it is a task that is possible to accomplish without violating or 

circumventing the due process faimess standards that are lhe bedrock of both the FAA 

Administrator's enforcement program and federal litigation a;; whole< 

It might be hoped thai the fucts of this particular case highlight an isolated incidenl and 

rare exception in the FAA investigation Field Offices, instead of a hidden nom1< However, the 

FAA's casual dismissal oflnspector Rushton's conduct and communications as "necessary" 

(Rcsp< 11. fn< 4), its arguments that Inspector Rushton's probkmatic communications with DL 

T:! lt shou~d also be noted, on be.halfofthe Respondent~ that once Or, Long adopted lnspecLor Rushron's- opinions 

about the RC'Spondent, it was highly likely that Dr. Long would share those opinions with others, especially as he 

consulted with different counsel and then transfen'ed his business interests ~lsewhere. lt cannot be talcu!ated how 

many people have now heard some varlation of Inspector Rushton's viliilcation of the Respondent, in the three and a 

half(3_5) years-since the investigation ofthls case firs( began. 

Page 39 of41 
Long were simply pmt of any FAA investigator's job when "asking a witness to provide a full 

and complete statement of events~, (Resp. 12), its failure to preserve relevant evidence, its 

persistent vilit1cation of the Respondent during a pending action, its ongoing attempts to obstruct 

tl1e Respondent's right to discovery, and its lack of any acknowledgement that its actions 

substantially deviated from well-esr.ablished due process standards, may indicate otherwise. 

When the PAA published its Rules in 1990, the FAA Administrator expressed 

high hopes that the aviation community and members of the public. who had filed written 

concerns about an FAA internally administered program. would be won over with the 

FAA's administration of a fair civil penalty enforcement program: 

[T]he agency believes the civil penalty assessment authority has been 

administered fairly and in good faith from its inception, and fully expects to win 

the confidence of the aviation community, as well as the general public __ 

55 Fed. Reg. 27548,27551 (Jul. 3, 1990) (Discussion of Final Rule). 

The FAA Administrawr's expressed hope did not materialize in this particular case. The 

FAA's ''no harm", it was ''necessary", it was the Respondent's fault, it was just routine 

destr-\-ldion, -and other arguments defending agaiJ"lSt the- allegations in this case, and argui-ng 

against sanctions, were not persuasive. In short, the FAA's actions in this case were completely 

contrary to both the FAA Administrator's published goals of fairness in administering the 

program/3 as well as to well-established ABA standards for ensuring due process l'aimess in 

litigation. 14 Han11 has occurred, both to the individuals involved in this case, and to the FAA's 

safely enforcement program as a whole. 

This Cou1t has engaged in a very careful consideration of the record to determine what 

sanction(s) would be propottional and appropriate, not only to address the proven misconduct but 

73 See, e.g., r:AA Order 2! . .50.38~ Chaptcr2.3(g) (an accused has a "right" to be trealed fairly) and 55 fed. Reg. 

275487 27 55l (J uL 3, 1990) {Discussion of-Flnal Ru!e)(the respondent'S rights of faimess and due process begins. at 

the inception of the FAA's inves-tigation and continues lhrough 10 Lhe final resolution of any accusation} 

" As noted e0r·lie.r herein. the FAA asserted that FAA counsel had only a 111arginal role in the fAA Field Ofl1ces 

investig;nion practices, except to act as an occasional consultant. (May 5, :ZO 16 Tr. 52: 1-18) Assurnirlg thi:s is 

accurate, il: means that the FAA enforcement prograrn does not ensure ac.c:.urme data colleetl'on in preparation for 

tftigarion, and it-does not follo·w ABA recomniended legal oVersight by· FAA counsel of its- inv~stigative employees 

w ensure due process compliance. Mode-l Rules of Prof! Conduct r.-3.8. 

Page 40 of41 
also to deter any future misconduct llf a similar nature. All the facts in this case, the wellestablished legal and professional standards in the litigation process, caselaw, legal sources. and 

the possibility of imposing various less severe sanctions have been reviewed and considered in 

depth. This Court has also considered the seriousness of the conduct, the impact the conduct has 

had on both the case and in the administration of justice, and whether there was a pattern of 

wrongdoing throughout the proceeding. 

As detailed fully in this Order, the FAA has engaged in discovery misconduct. This 

misconduct should not have occurred. lt should never occur again. As a result, this Court agrees 

with the Respondent that the appropriate and proportional response to the dis,:uvery viulatio11s 

and misconduct herein is to strike the applicable portion of the FAA's pleadings_ 

Pursuant to 14 CF.R. §§ 13.217(1)(1) and 13.220(n)(l ), ihe instructive guidance of Rule 

37, and after reviewing all relevant caselaw, regulation, statutory authority, and being fully 

advised; 

fT lS HEREBY ORDERED: 

J_ The Responclent"s Motion for alternate Sanctions is granted. 

2. The following portions of the FAA's December 15,2014 pleadings are hereby stricken as 

a sanction loo· the FAA's misconduct in this case: Paragraph It page 1 §§ (2) and (3). No 

facts regarding these two stru.ck pleadings may be introduced into evidence. 

3. Upon receipt of this Order, either pany may move lor additim1al relief. 

Attachment: Service List 

Page 41 of41 
Docket No. F AA-20 14-0867 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administmtion 

80() Independence Avenue, S.W. 

Washingtcon, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 000 1 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Oftlce of the Regional Counsel, AS0-7 

Southern Region 

1701 Columbia Avenue 

College Park, GA 30337 

TEL: 404-305-5200 

FAX: 404.305-5223 

[VIr, Paul R. Borth 

Respondent ·s Counsel 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, !L 60025-4387 

TEL: 847-724-5520 

F/\X: 815-356-7042 

.iLtdge J.E. Sullivan 

U.S. Administrative· Law Judge 

Office ofHea.Iings, M-20 

U.S. Department of Transportation 

ONE COPY 

Birmingham Flight Center, Inc. 

Respondent 

4243 East Lake Blvd. 

Bim1ingham, AL35217 

1200 New Jersev Avenue, S.E. (Ell-310) - . . 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

1 Service ~.vas bjl U.S. Mail. Fur service In person or by expedited courier, use the following address: federal 

Av[ation Adminfsrr-ation, 600 lndepende.nce Avenue, S.\V., Wtlbur-Wright Building-Suite 2WIOOO, \~/ashington, 

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