# u.s. DEPARTMENT OF TRANSPORTATIJmECEIVED FEDERALAVIATIONADMINISTRATION 

## APR1

## 8'11113 OFFICE OF HEARINGS**~** WASHINGTON, DC 

# HEARING

# DOCKET

In theMatterof:

MartinaireAviation, LLC Respondent

JUDGE GOODWIN FAADOCKETNo. FAA-2013-0040

FAA CaseNo.2011SW700189 (Civil PenaltyAction)

FDMS No. FAA-2013-0040



### COMPLAINANT'S REPLY TO RESPONDENT'S RESPONSE TO COMPLAINANT'SMOTIONFOR PROTECTIVE ORDER

NOW COMES the Complainant, acting through his Regional Counsel, and replies to respondent's response to Complainant's Motion for Protective Orderpursuant to Section 26 (c)(1)(D) of the Federal Rules of Civil Procedure regarding deliberative process involvingmaterials, data, information and testimony requested byRespondent in his Notice of Deposition. In support of its replyComplainant states the following:

1. Subpart G-Rules of Practice in FAA Civil PenaltyActions, 14 CFR § 13.220 (h) Protective orders. states:

A party or a person who has received a request for discoverymay file a motion for protective order with the administrative law judge and shall serve a copy of the motion for protective order on each party. The party or person making the motion must show that the protective order is necessary to protect the party from annoyance, embarrassment, oppression, or undue burden or expense. As part of the protective order, the administrative lawjudgemay: (3) Limit the scope of discoveryorpreclude any inquiry into certainmatters during discovery1•

1This section is almost identical to Section 26(c)l)(D) of the Federal Rules of Civil Procedure. In addition, Title 49, Part 821-Rules of Practice inAir Safety Proceedings, § 821.19(d)(2) provides "The releasable portion of the EIR shall include all information in the EIR, except for the following: {i)2. Complainant requests that the court limit the scope of discovery in the depositions of Paul Klimas and Bryan Buchanan to the areas specifiedbelow:

DEPONENT: Paul Klimas, Hazardous Materials Specialist. TOPIC OF KNOWLEDGE: Thepurpose and intent of 49 CFR Section 175.31, Shippingpaperandnotification ofpilot-in command, as it applies to this matter, specificallythe purpose and ends that a notification of pilot-in command is intended to serve. DATE/TIME: May 17, 2013 at 9:00 a.m. LOCATION: 2000 East Lamar Boulevard, Suite 600, Arlington, Texas 76006, Telephone (817) 462-4000.

DEPONENT: Bryan Buchanan, Manager Hazardous Materials Specialist. TOPIC OF KNOWLEDGE: 49 USCS § 5123 (c) Penalty considerations. In determining the amount of a civil penaltyunder this section, the Secretary shall consider-(1) the nature, circumstances, extent, and gravity of the violations; (2) with respect to the violator, the degree of culpability, anyhistory ofprior violations, the abilityto pay, and any effect on the ability to continue to do business; and (3) othermatters thatjustice requires. DATE/TIME: May 17, 2013 at 11:00 a.m. LOCATION: 2000 East Lamar Boulevard, Suite 600, Arlington, Texas 76006, Telephone: (817) 462-4600.

3. In his response, respondent's attorney claims that to assert the deliberative process doctrine, the agencymust assert the privilege in an affidavit. To assert the deliberative process doctrine, there is no requirement mentioned inMarriott Int'l Resorts, L.P. v. United States, 437 F.3d 1302, 1308 (Fed. Cir. 2006) that requires the agency to assert this privilege in an affidavit.

4. Secondly, respondent states the agencyhas not stated "with particularitywhat information is subject to the privilege.n The agency claims any deliberations pertaining to how it arrived at its civilpenalty in this case is subject to deliberative process. Thirdly, respondent claims the agencyhas not provided

information that is privileged; (ii) information that is an internal memorandum, note or writingpreparedbya person employedby the FAA or another government agency; (iii) information that would disclose the identity of a confidential source; (iv) information of which applicable lawprohibits disclosure; (v) Sensitive securityinformation, as defined at 49 U.S.C. 40119 and 49 CFR 15.5."
2"the court withprecise and certain reasons for maintaining the confidentiality of the information." The agency seeks to maintain the confidentiality of discussions involving the how the agency arrived at its civilpenalty.

WHEREFORE the agency requests a protective order limiting the scope of discovery involving sanctions to the purpose and ends that a notification of pilot-in-command is intended to serve and the factors stated in 49 USCS § 5123(c) Penalty considerations and that the respondent be precluded from discovery into the agencies deliberative process involving how the agency arrived at its civil penalty in this case.

Respectfully submitted this 17thday ofApril 2013.

ERIC E. ANDERSON Regional Counsel Southwest Region

3

### CERTIFICATE OF SERVICE

Re: MartinaireAviation, LLC, FAA Case No. 2011SW700189

I hereby certify that on this date, I have sent via Federal Express an executed original and one copy of the COMPLAINANT'S REPLY TO RESPONDENT'S RESPONSE TO COMPLAINANT'S MOTION FOR PROTECTIVE ORDER addressed as follows:

FederalAviationAdministration Attention: Hearing Docket, AGC 430 600 IndependenceAvenue, SW Washington DC 20591 WilburWright Building-Suite 2W1000 Washington, DC 20591 (originalplus one copy) (Federal Express)

I further certifythat on this date, I have sent via Federal Express a true copy of the COMPLAINANT'S REPLY TO RESPONDENT'SRESPONSE TO COMPLAINANT'S MOTION FORPROTECTIVE ORDER addressed as follows:

The Honorable Richard C. Goodwin Administrative Law Judge Office of Hearings, M-20 Department of Transportation 1200 New JerseyAvenue, S.W. Washington, DC 20590 FAX: (202) 366-7536 (Federal Express)

4I further certify that on this date, I have sent via Federal Express a true copy of the COMPLAINANT'S REPLY TO RESPONDENT'S RESPONSE TO COMPLAINANT'S MOTION FOR PROTECTIVE ORDER addressed as follows:

Mr. Michael L. Dworkin andAssociates Law Offices 465 California Street, Suite 210 San Francisco, California 94104-1808 (Federal Express) Telephone: (415) 421-2500 Facsimile: (415) 421-2560**8;;~:7·· ..:::2.__:::_---~-** **~~u~~~~'---** es Archier, AgencyAttorney 222-5074



### 5 April 17, 2013