u.s. DEPARTMENT OF TRANSPORTATIJmECEIVED 

FEDERAL AVIATION ADMINISTRATION APR 1 8 '11113 

OFFICE OF HEARINGS ~ 

WASHINGTON, DC HEARING DOCKET 

In the Matter of: 

Martinaire Aviation, LLC 

Respondent 

JUDGE GOODWIN 

FAA DOCKET No. FAA-2013-0040 

FAA Case No.2011SW700189 

(Civil Penalty Action) 

FDMS No. FAA-2013-0040 

COMPLAINANT'S REPLY TO RESPONDENT'S RESPONSE TO 

COMPLAINANT'S MOTION FOR PROTECTIVE ORDER 

NOW COMES the Complainant, acting through his Regional 

Counsel, and replies to respondent's response to Complainant's 

Motion for Protective Order pursuant to Section 26 (c) (1) (D) of 

the Federal Rules of Civil Procedure regarding deliberative 

process involving materials, data, information and testimony 

requested by Respondent in his Notice of Deposition. In support 

of its reply Complainant states the following: 

1. Subpart G-Rules of Practice in FAA Civil Penalty Actions, 14 

CFR § 13.220 (h) Protective orders. states: 

A party or a person who has received a request for 

discovery may 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 law judge may: 

(3) Limit the scope of discovery or preclude any inquiry into 

certain matters 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 in Air 

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 specified below: 

DEPONENT: Paul Klimas, Hazardous Materials Specialist. 

TOPIC OF KNOWLEDGE: The purpose and intent of 49 CFR Section 

175.31, Shipping paper and notification of pilot-in command, as 

it applies to this matter, specifically the 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 penalty under 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, any history of prior 

violations, the ability to pay, and any effect on the ability to 

continue to do business; and (3) other matters that justice 

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 agency must assert the 

privilege in an affidavit. To assert the deliberative process 

doctrine, there is no requirement mentioned in Marriott 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 agency has not stated "with 

particularity what information is subject to the privilege.n 

The agency claims any deliberations pertaining to how it arrived 

at its civil penalty in this case is subject to deliberative 

process. Thirdly, respondent claims the agency has not provided 

information that is privileged; (ii) information that is an internal 

memorandum, note or writing prepared by a person employed by the FAA or 

another government agency; (iii) information that would disclose the identity 

of a confidential source; (iv) information of which applicable law prohibits 

disclosure; (v) Sensitive security information, as defined at 49 U.S.C. 40119 

and 49 CFR 15.5." 

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"the court with precise 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 civil penalty. 

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 17th day of April 2013. 

ERIC E. ANDERSON 

Regional Counsel 

Southwest Region 

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CERTIFICATE OF SERVICE 

Re: Martinaire Aviation, 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: 

Federal Aviation Administration 

Attention: Hearing Docket, AGC 430 

600 Independence Avenue, SW 

Washington DC 20591 

Wilbur Wright Building-Suite 2W1000 

Washington, DC 20591 

(original plus one copy) 

(Federal Express) 

I 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: 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

Department of Transportation 

1200 New Jersey Avenue, S.W. 

Washington, DC 20590 

FAX: (202) 366-7536 

(Federal Express) 

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I 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 and Associates 

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, Agency Attorney 

222-5074 

5 

April 17, 2013