### UNITED STATES OF AMERICA U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS, WASHINGTON, DC '

-- ,,



### In the Matter of: ) ) ) 

### ) ) 

### DocketNo. FAA-2014-0867 BIRMINGHAMFLIGHT CENTER, INC. 

### Judge J.E. Sullivan Respondent. CaseNo. 2012 SO 090053 RESPONDENT'S MOTIONFORDECISION Now Comes the Respondent, BirminghamFlight Center, byits attorneys, Barnett & 

### Borth, LLC, andpursuantto 14 CFR §13.218(f)(5)hereby files its MOTIONFOR DECISIONinthe instant matter, and in supportthereofstates as follows: 

### I. Introduction and Background: OnDecember 15, 2014, the FAA served a Complaint on theRespondent, a flight school operating in Birmingham, Alabama. (A copy ofthe FAA Complaint is attached as ExhibitA). The FAA's Complaint was filedpursuantto 14 C.P.R.§ 13.208, thereby invoking this Court'sjurisdiction. The FAA's Complaint alleged thatonorabout September 18, 2012, the Respondenthad operated a passengerflight for compensation or hire withouta certifiedpilot. Pertinentto the presentmotion,the FAA specifically allegedthat: 2. On or about September 18,2012,you [The Respondent] operatedN525LP, a Cessna CitationJet, as a passenger carrying flight from Birmingham, AL (KBHMJ) to Destin, FL (KDTS) (hereinafter "Flight"). 3. The Flight was operated for compensationorhire. (SeeExhibit A

**at~** 

### II. §§ 2 and 3). Based onthesetwo factual allegations, the FAA asserted the Respondenthad violated seven (7) FAA safetyregulations. (See Exhibit A

**at~** 

### II. §5 a-g). The FAAthen

### proposed a total civil penalty of$11,000. (See ExhibitA

**at~** 

### 6). OnDecember 18,2014, the Respondentfiled its Answer denyingthe factual allegations set outinthe FAA's Complaint

**at~** 

### II. §§ 2 and 3. (See ExhibitB). Thetwo factual allegations set outinits Complaint

**at~** 

### II. § § 2 and 3 serve as the only foundation from which a finding maybe madethattheRespondentviolated anyof alleged violations ofthe Federal Aviation Regulations set out inthe FAA's Complaint at

**at~** 

### II. §5 a-g orthatthe Respondent is subjectto any civil penalty. OnNovember 18,2015,the Respondent, BirminghamFlight Center, Inc., filed its Motionfor Sanctions whichincluded arequest for alternate sanctions. OnDecember 10,2015,the FAAfiled a Response in Oppositionto Motion for Sanctions. OnJanuary 15,2016,the Respondent filed the Respondent's Replytothe Striking the FAA'sResponse in Oppositionto Motionfor Sanctions. OnFebruary 22,2016 an OrderDenyingRespondent's Motionto Dismiss and Reserving Ru1ing on Other Sanctions was filed. OnMarch 30, 2016 an Order SettingMotion Conference was filed bythis Court. OnApril 13, 2016, theparties convened for a Motion Conferenceto discuss the legal andprocedural questions raisedbythe Respondent's MotionforAlternate Sanctions. Consistentwiththe agreements ofthe parties, this Court entered an Order SettingDeadlinefor Respondentto file Supplemental Material and Continuingthe MotionConference for May, 5, 2016. OnMay2, 2016, the Respondent filed a Supplemental BriefConceruing Respondent's Motion for Sanctions 

### 21Pagcc

### OnMay5, 2016, thepartiesconvenedfor a SecondMotion Conference and presentedtheirrespective oral argument concerningthe Respondent's Motionfor Alternate Sanctions. OnJune 3, 2016, this Conrt servedits Order Granting Respondent's MotionFor Alternative Sanctions. (See Exhibit C/. Relevantto thepresentmotion, this Conrtheld: This Conrthas engaged

### ina very careful considerationoftherecordto determine what sanction(s) wouldbe proportional and appropriate,not onlyto address the proven misconductbutalso to deterany future misconduct ofa similarnature. Allthe facts inthis case, the well- established legal andprofessional standards inthe litigationprocess, case law, legal sources, andthe possibilityofimposing various less severe sanctions have beenreviewed andconsidered indepth. This Conrthas also consideredthe seriousness ofthe conduct, the impactthe conducthas had onboththe case and inthe administration of justice, and whetherthere was apattern ofwrongdoing throughoutthe proceeding. As detailed fully inthis Order, the FAAhas engagedin discoverymisconduct. This misconduct should nothave occurred. It

### should never occur again. As a result, this Conrtagrees withthe Respondentthatthe appropriate andproportionalresponsetothe discoveryviolations and misconducthereinisto strikethe applicable portion ofthe FAA'spleadings. Pursuantto J 4 C.F.R. §§ !3.217(f)(l) and !3.220(n)(l), the instructive guidance ofRule 37, and after reviewing allrelevant caselaw,regulation, statutory authority, andbeingfully advised;

1 The Court's June 3, 2016 OrderGranting Respondent's MotionforAlternative Sanctions provides a comprehensive and accurate recitation ofthe facts, arguments, andlegal authority concerningthis matteras well as this Court's well-reasoned decision andis adoptedhere as though more fully set forthherein.

### IT IS HEREBY ORDERED: 1. The Respondent's Motionfor alternate Sanctions is granted. 2. The following portions oftheFAA'sDecember 15, 2014pleadings arehereby strickenas a sanction for the FAA'smisconductinthis case: Paragraph II,

### page 1§§ (2) and (3). Nofacts regardingthese two struck pleadings maybe introduced into evidence. 3. Uponreceipt ofthis Order, eitherpartymaymove for additionalrelief. (See Exhibit C at p.41-42). Nohearing onthismatterhas yetbeenheld andthis Courthas not issued an initial decision inthis matter. Onthe basis ofthis Court's striking ofParagraph II, page 1§§ (2) and (3) ofthe FAA's Compliant andthe Court's Orderthat: "No facts regardingthese two struck pleadings maybe introduced into evidence", the Respondentbringsthis Motionto Decision. 

### II. Argument: 14 CFR 

### §13.218(f)(5) specificallyprovidesthat: A partymay make amotion for decision, regarding all or anypartofthe proceedings, atany timebefore the administrative lawjudgehas issued aninitial decision in the proceedings. 

### The administrative lawjndge shall grant a party's motion for decision ifthepleadings, depositions, answers to interrogatories, admissions, matters thatthe administrative lawjudge has officially noticed, orevidence introduced duringthe hearing show that there is no genuine issue ofmaterial fact and that the party makingthe motion is entitled to a decision as a matter oflaw." 14 CFR 

### §13.218(f)(5)(emphasis supplied).

### Onthebasis onthis Court's Order ofJune 3, 2016, striking ofParagraphII, page I §§ (2) and (3) ofthe FAA's Compliant andholdingthatthe FAAis barred from introducing any facts or evidence regardingthese two struckpleadings atthe hearing of this case, the FAAcannotpresentany question ofmaterial fact atthe proposedhearingof this matter concerningthe any alleged violationofany FederalAviationRegulation regardingthe Respondent, cannotpresent a prima facie showing ofanyviolationand cannotprevail atthe proposedhearingofthismatter. Eachofthe FAA's allegations concerning violations ofthe Federal Aviation Regulations delineated in the FAA's Complaint

**at~** 

### II. §5 a-grequire either operation of
a flight or operationofa flight for hire orboth. Withoutthe factual allegations previously setforth inParagraph II, page 1§§ (2) and (3) ofthe FAA's Compliant, there are no facts to supportthe allegedviolations ofthe Federal AviationRegulations andthe FAA's complaintfails to set out any cause ofaction againstthe Respondent. Accordingly, since there is no questionofmaterial facts, no material facts are now contained inthe FAA's Complaint, andthe FAAhas no abilityto raise a genuine issue ofmaterial fact from whichthefactfinder could fmd inthe FAA's favor athearing, the Respondent is entitled tojudgmentinits favor as a matteroflaw. WHEREFORE, for the foregoing reasons and pursuantto 14 CFR §13.218(f)(5) theRespondentrespectfullyrequests thatthis Court enter anorder granting the Respondentjudgmentin its favor as a matter oflawand for suchotherrelieforfinding thatthis Court deemsjustan appropriate.

### Respectfully submitted, BARNETT 

### & BORTH, LLC

au Counsel for Respondent, BirminghamFlight Center, Inc. Barnett & 

### Borth, LLC 800WaukeganRoad Suite 200 Glenview, IL 60025 Tel. (847) 724-5520 Fax (815) 356-7042 prb@bamettlegal.com

611'''".'"**~-** J:: "-'

### CERTIFICATE OF SERVICE 

### I hereby certifYthat I have sentviaFec!Ex the foregoing RESPONDENT'S MOTION FORDECISION addressedto: The HonorableJ.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJerseyAve. SE (Ell-310) WashingtonD.C. 20590 Fax 202·366-7536 Christopher Stevenson Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel, ASO-7 Southern Region 1701 ColumbiaAvenue College Park, GA 30337 ORIGINAL AND ONE COPYTO: FederalAviationAdministration 600 Independence Avenue, S.W. Wilbur Wright Building-Suite 2W1000 Washington, DC 20591 Attention: Hearing Docket Clerk. AGC-430.
Dated:

**J~t<-13,~16.**

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### R. Boffli /'/ Counsel for Respondent Barnett & 

### Borth, LLC 800WaukeganRoad Suite 200 Glenview, IL 60025 Tel. (847) 809-9520 Fax (815) 356-7042 prb@barnettlegal.com



### 7["Page

### Jun 24 00 10:05p



### U.S. 

### DEPARTMENT OFTR-\NSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION p.3



### FEDERALAVIATION ADMINISTRATJON, 

### Complainant,
vs. Birmingham Plight Cerrter, Irrc. Respondent.
JUDGE NOT YET 

### ASSIGNED FAADocket No. 

### Judge



### COMPLAINT TheFederal Aviation Administration (FAA), by counsel, hereby files its Complaint, pursuant to Rule 

### 208 ofthe Rules ofPractice (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 Penaltythatthe FAA

### proposed to assess 

### a civil penalty in the amount of$11,000. On November 26,2014, the Agency Attorneyreceive-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 14C.F.R. 

### Part 61 andPart 141 flight schooL 2. On or about September 18,2012, you operated N525LP, a Cessna Citation Jet, as a passengercarrying flight from Birmingham, AL (KBHM) 

### to Destin, FL {KDTS) 

### (hereinafter "Flight"). 

### 3. The Flight was operated for compensation 

### orhire. 4. At the time ofthe Flight, the BirminghamFlight Centerdidnot:
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 ofTransportation; 

### c. Conduct the flight with 

### a qualified pilotunder 14 C.F.R. 135; 

### d. Pass a written ororal test given by the Administrator or an authorized check pilotto conduct the Flight; or 

### e. Pass orcomplete the training, tests, and checks required to act as 

### a pilot under 14 C.F.R. Part 135. 

### Ill. 5. By

### reason oftheforegoing facts arrd circumstances, Respondent violated the following sections oftheFederal 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 carrieror as a commercial operator in violation ofanydeviation or exemption authority, ifissued to that person or that person'srepresentative. 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, underthis chapter, for the operation for which the person istobe 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 ofthe 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 specifiedin 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 ofthe 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, ifsingle-engine airplane other than turbojet, or that type ofaircraft, 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 2400 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 ofthe types ofaircraft which that pilot is to fly. The ±1ight check shall- (I) Be given by an approved checkpilot orbythe Administrator: (2) Consist ofat 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-airwayroute, or a portion ofeither ofthem. 6 Pursuantto 49 U.S.C. Sections 46301(a)-(d), Respondent is subject to a civil penaltynotto exceed $1,100 for each ofthe violations alleged. Underthe facts and circumstances ofthis case, a civil penaltyof$11,000 is appropriate. WHEREFORE, the Agency, 

### by counsel respectfullyrequeststhat theAdministrative 

### Law htdgc enter an orderthat Respondent be assessed a civil penalty in the amount of$11,000. Respectfully submittedthis

# ~ dayofDecember, 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 ifappropriate, not laterthan 30 days afterthe date shown on the Certificate ofService which follows.Jun2400 10:06p



### CERTIFICATE OFSERVICE 1hereby certify that a 

### copy Gfthe foregoing Complainthas been mailed this date by Certified Mail, Return ReceiptRequested, to the following: Birmingham Flight Center 4243 East Lake 

### Blvd. Birmingham, AL 

### 35217 Charles R. Barnett Barnett & 

### Borth, LLC 

### 800 Waukegan Road, Suite200 Glenview, IL 60025-43&7 Hearing Docket Clerk 

### FAA, AGC-430, Suite 2WIOOO Wilbur WrightBuilding 800 Independence Avenue, SW Washington, DC 20591



# Jj~ 

# 6.LL.. 

# t DONNAE.



# s~MJiY Legal Assistant Office ofthe 

### 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. DOCKETNO. (CP09GL0008) (Civil PenaltyAction)



### RESPONDENT'SANSWERTO COMPLAINT COMES NOWthe 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. throughg.: DENIES 6. DENIES
Respondentrespectfully requests theAdministrative Law Judge denytheAdministTator's requestto enteran orderpursuantto the FinaJ Notice ofProposed Civil Penaltyproposing a civil penaltyinthe atnount of$11,000.00 datedNovember 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 

# /.

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# / {_ /. ;:..·

**~·** 

### Attorney"tor'RetpOOdllt BilminghamFlight Center,Inc.

### CERTIFICATE OF SERVICE The undersigned certifies that the foregoing Answer was served via Certified Mail, ReturnReceiptRequested

### as follows: ORIGINALAND ONE COPY Federal Aviation Administration llOO 

### h1dependence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWrightBuilding-Suite2W1000 

### FAJ(: 202-493-5142 ONECOPY DeitrickH. Johnson, Complainant's Counsel 

### Federal AviationAdministration Office ofthe Regional Counsel, AS0-7 SouthernRegion 1701 CoiumbiaAve Atlanta, GA 30337 TEL: 404-305-5200 F

AJ(: 404-305-5223 The Honorable J. 

### E. Sullivan,AdministrativeLawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 

### 202-366-6941 FAX: 202-366-7536 Datedthis 

### 18'h day ofDecember, 2014.



# /-/~~ i ' ./ .s".-<;,/

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## ~harl~SR:ame;

Attorneyfor Respondent

3

### In The Matler Of: 

## SERVED: .JliNE 3, 2016 U.S. DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS WASHINGTON, DC

Docket No. FAA-2014-0867 

### Bl!UvlfNGHAM FLIGHT 

### CENTER, INC. ) ) 

### ) ) Case No. 2012S009005} 

### Respondent
ORDER GRANTING RESPONDENT'S MOTION .FOR ALTERNAn: 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 OrderDenying Respondent's Motion to Dismiss and Reo;erving Ruling on Other Sanctions was filed. On March 30. 2016 an Orde: Setting MotionConference 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\ngRespondem'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. Complaintand Answer On December 15, 2014, 

### the FAA served a Complaint 

### on the Respondent, a fligb school operating 

### in Birmingham. Alabama. 

### ln this Complaintthe 

### FAA alleged that on or aboUl September 18, 2012, the 

### Respondent had operated a 

### passenger flight for 

### compensation orhire 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$

## r1,000. 

### The Respondent filed 

### aDecember 18,2014Answer and denied the allegations. 

### B, Short Summary ofRespondent's Motion The Respondent's November 

### 18, 2015 Motion fol' Sanctions all.eged that '·[f]rorn the inception
.. ofthe FAA's investigation in 

### this case, the FAA had engaged in ·'improper, sanctionable conduct." 

### (Motion,

# l,, L) The Respomlenl urged either dismissal ofthe case or, altematively, other sanctions 

### as the court deemed approptiate, 

### Because dismissal is not an available sanction under the FAA Rules ofPractice, the Respondent's request for dismissal was

'This April 13 1 2016 dt·det' enoneous!y idenrfFied the date ofthe 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, 10f6 OrderSelting Motion Conference). and the April lJ, 20 I6 Order was filed and served on the_same day the purlies convened fm the Motion Conference (see, Apri! I}. 20 16 Order, l, and CerL ot-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 of41

.. ··-

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**'··-················~---·---···-···--**

### denied on February 22,20164 However, 

### as part ofits Motion the Respondent alternatively requested "sanctions asthe Comi deems proper andjust." (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 thatthe 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 September2012 through December 2014, which included all cbree distinct time periods involved 

### in the fAA's safety 

### enforcementaction: 

### 1. lnitiallnvestigation (September20, 20P- March 7. 2013)



### a. "Polluted'' the perceptionsand 

### testimony ofDr. 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 ofCommenc-ement ofCivi! Penalty Adion. § (C).
6 Specifically, [he April 7._ 20 JSOrder Setting Lltigation Dates and

**Procedmes~** and, the Septe-mber 1, 20 I5 Ordt::r Granting the Molion to Amend, Continuing the November 20 _!5 Hearing to September 20 16,. and Granting Other Relief Page 3 of41

',,_

**~~- ~-"-'**  **,,,,,,~ ~----~,** c. Deliberately vv'ilhheld relevant, disclosable, documentary evidence in its possession. ()\!lot. 

### 3-4. 6-9} C. 

### Short Summary ofFAA's Response ln Responseto the Motion, the FAA assetted that 

### it had not engaged in mostofthe 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 ofa civil penalty case.. or that itfailed topreserve certain evidence, such error(s) would not be gmunds 

### tor sanctions or dismissaL (Resp., l.) Some ofthe Respondem's most serious allegations imolved e-mails authored 

### by FAA Inspector YanceyRushton, who served as the primary investigator in the case. (Resp. Ex. A, 1.) The FAA denied thatInspector Rushtonhad engaged in any impropercondttct 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 

### arguedthat

### lnspector Rushton's destruction of

### his e-mail cotTespondence with Dr. Long had been part ofa ''routine"purge ofe-mail (Resp. 5), and should not be deemed problematic. since these 

### e,mails "did not add 

### something to theevidence.'' (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 attemptto gather evidencevia subpoena, the FAA asserted that 

### ithad done neither. II. LEGAL AUTHORITY FOR SANCTIONS In partial support for altemate sanctions, the Respondent cited to multiple sections in the FAA's Rules ofPractice, 14 C.F.R. Part 13, Subpart G ("FAA Rules"). The FAA Rules specifically address the imposition ofsanctions 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) ofthe sections,

In one ofthese 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 of41A. Sanctions forlmproperly Signed and Filed Documents (14 C.F.R. 

### § 13.207) Pursuant to 

### 14 C.F.R. 

### § I3.207(a), all filed docwnents must be signed. The signing ofany document is a certitlcation8 that the docnment has been read and is in compliance wrth the 11Jies ofpractice. 

### 14 C.F.R. 

### § l3.207(a). 

### ifany document is signed or certitled in violation of 14 C.F.R. 

### § !3.207, then six (6) different sanctionsmay be considered tor imposition. 14C 

### .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 ajoint 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 

### aparty should "comply with a motion" or with a "discovery request": 

### (t) Sanctionsforfailure to complywith joint schedule. 

### !faparty fails to 

### comply with the administrative lawjudge's orderestablishing ajoint schedule, the administrative law

### judgemay directthat party 

### to comp(vwith a 

### moiion {l"ic} to di.;·covery requesl 

### [1iL) or, 

### llmited to 

### the extent ofthe 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 requestby a party in litigation, made to the couri, seeking certaincotn1-ordered relief. 

### See, e.g., 14 CF.R. 

### § 13.218; Fed. R. Civ. 1'. 7(b)( 1) I"A request for a court order must be made 

### by motion
...''). The motion itselfdoes not carry authoritative weight, nor may it bind an opposing party in any way. Steven Baicker-McKee. 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 atier 

### 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 ofpractice (-i·1 C"F.R, § 13.207(b)(!)); warranted by existing Jaw or by agood faith argument about existing law ( !4- CJ'.R.

**~** 13.207(b)(2)), and nor made for anyimproper

**purpose~** 14 C.FK § 13.207(b)(3).
Page 5 of41Thus, the language of 14 CF.R. 

### § \3.2I7(f) contains error. Fortunately, in FAA civiI penalty cases, theFederal Rules-and case law construing them-may be used as guidance when nceded.9 lnthe instantcase, the language of 14 C.F.R. § 13.21 7(f) appears to synthesize cenain components ofboth Federal Rule ofCivil Procedure 16 ("Rule 16''), 10 and Federal Rule ot'Civil Procedure 37 ("Rule 37"). 11 A comparison ofthe similar languagc 12 between 14 

### CFR. § I3.217(f) and Rules 16 and 37 demonstrate that the most reasonable interpretation ofthe problematic text of 14 C.F.R. § 13.217(i) is as follows: (!) 

### Sanctionsforfailwe IQ 

### comply wilhjoint schedule. Ifa party fails to compi) with

### the administrative 

### Jawjudge's orderestablishing

### ajoint schedule, the administrative lawjudge may direct that party to eomply with 

### a motion to discovery request or, limited to tbe extentofthe party's failure to comply with a 

### metietH>l' discovery request

### or order directing discovery, the administrative 

### law judge may ... [sanctions listed]. I4 C.F.R, 

### § 13.217(1) (emphasis and alterations added) Utilizing this interpretation, 

### ifa violation of 14 C.F.R. 

### § 13.217 is found, rbe Court may impose four (4) different sanctions: 

### 1. Su·ike that portion 

### ofa party's pleadings; 

### 2. Preclude prehcaring or

### discovery motions by 

### that patty; 3. Preclude admission ofthatportion ofa party's evidence at the hearing, or 4. Preclude that portion ofthe testimony ofthat party's witnesses at the hearing.**·~When** the PAA promLdgated the }{ules ofPractice in !990, Ehe FAA wante-d !Cl rnalmain a "less formal'. adrninisrratlve process. 55 Fed. Reg. 2756:) (Jul. J, 1990) (Discussion ofFinal Rule). As a result+ h declined to adopt as controlling the Federal Rules ofCivil 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 37 identifies various sanctions for instances ordiE>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 courtto 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, orthe pad:ies may voluntarily agree to cOnfer without prior e:outt direclive andjoinlly file a proposed discovery schedule for court appcoval. 14 C.FJC § 13.217(a)'(dl. Page 6 of4114C.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) ifnojoint discovery schedule is entered in a case, then pursuant to 14 C.F.R. 

### § 13.220, sanctionsmay be imposed in those instances when a party fails to act pursuant to a discovery order, or when a pariyfails to comply with a court's order to compel discovery. 14 14 C.F.R. 

### § lJ.220(n). However, thelanguage in this section is again problematic, and echoes the problen1s in 14 C.F.R. 

### § 13.217(f) as discussed above. (n) Failureio comply with a discovery order ororder 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 ofthe 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 sanelions listed in 14 C.F.R. 

## 013.217tf), and should also be '·limited to the extent ofthe 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 ofthe 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 ofRule 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 of41

### IU. DATE OF COMMENCEMENT OFClVlL PENALTV ACTION Pat1 ofthe Respondent's Motion alleges improper conduct and communications 

### by the FAA during its initial investigation 

### stage, which occurred prior lO 

### the tiling ofboth 

### the FAA

### ·s March 

### 8. 2013 Notice ofProposed Civil Penalty ("NPCP") and December 

### 15, 2014 Complaint. As partofits Response, the FAA generally asserted thatdiscovery 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 itconsidered the '"litigation" to have "commenced" for the purpose of sanction review, nm·did it identify !he date that ithad issued its NPCP. (Resp. 1-18.) As a result, thevarious phases ofthis case, andwhen the;se phases "commenced" 

### will first be identified, followed 

### by a briefdiscussion ofthe scope ofcourt oversight. 

### A. September20, 2012- FAA investigation Pursuantto 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 ofa 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 FA.A. Order 

### 2150.3B, Chapter ) '(. "J 17**~.J** ..**~**.. 

### B. March 8, 1013- Formal Civil Penalty Action The "commencement" ofa 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 September2 L 2012, Inspector Rushton met with Dr. Long, a third party witness. (Mot. Exs. J and R; Reply; Ex. A). 19 Priorto 1992y the FAA Administrator interpreted the term "con-unenced" in civil penalty proceedings1 contained in 28 U.S.C § 2462. to mean the issuance ofa nortce ofproposed c.!vll'penalty (''NPCP"). See 55 Fed. Re-g. 27548. 27552 (Discussion ofFinal 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 ofaNPCP, See RoyalAl'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 41cases20 In essence, to ensure compliance with the FAA's two year limitations period (14 CF.R. § 13.208(d)), the issuance ofa 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 ofthe 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 ofthe Final Notice ofProposed 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 

### aresult, 

### the date the formal civil penalty action ··commenced"was March 8, 2013. C. November 26, Z0l4- Formal Adjudication Whilethe 

### FA.i'\.'s fmmal civil penalty action is initiated by issuinga NPCP (see, \4 C.F.R. 

### § l3.!6(t) and 14 C.F.R. 

### § 13.208),the tormal 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. Il\, 2015)("the complaintis filed as a responsive document. whollydependent 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 Denyingthe 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 ofthe Request., the FAA had twenty (20) days to file the original an<' one copy ofits 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:ssippiAir Express, LLC Docket No. FAA-2014-0866, Order Graming the ResponrJent'·s J\,1orioll to Dismiss ; .. \ct1on (July 22, 20

**15)~** and, PazAviation, Docket No. FAA-20 !4-0807., Order Denying-the Respondent's Motions 

### w Dismiss (Sept. 18, 20 15).
-:!I See RoyalAvionics 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 ofFinal Rule) (codified at 14 c.r,R.

# s13.208(d)). Page 9 of41Complaint. On December 10,2014- (i.e., fourteen (14) days after tbe Request was filed) the FAA liled a copy ofits Complaint, along with an attached copy ofthe Request, with the FAA Hearing Docket. 

### As aresult. the formal adjudication 

### (or ''litigation") phase 

### ofthis action commenced on November26, 2014, the dare the Respondentfiled its Request. 

### IV. COURT OVERSIGHT OF ENTIRE ACTION Itmust be emphasized, however, that neitherthe date the NPCP was issued (i.e. March 8, 2013) 1101' the date the Respondentfiled its Request (i.e
.. November 26,2014) is dispositive in determining rhe scope ofthe court's oversight ofthe case. As briefly discussed above. the two-year limitations period 

## tor issuance ofthe NPCP in civil penahy litigation satistles the FAA's requirements that enforcement action occurs expeditiouslyafter 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 ofFinal Rule). The FAA's adoption ofa two-year statute oflimitations to ensure expeditious ..litigation**commeneemenc~** has nev_er**meant~** ho\vever, that the investigation period prior Lo isswmce ofthe NPCP was exempt from court c>versight in civil penalty adjudicationsY 

### 55 Fed. 

### Reg. 27548,27556-57 (JuL 

### 3, 1990) (Discussion ofFinal Rule') (codified at 14 C.F.R. 

### § 13.208((!)).

### See also, PazAviation, DocketNo. 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 Administratoremphasized that both parties had responsibilities that preceded both the formal civil penalty action "commencement" date and the adjudication ofthe case. The collection and preservation ofevidence during the investigative stages ofthe 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 ofthe civil penalty adjudication included the lnvestigalhe smge ofthe action. (April U. 20!6 Tr. 23:13-25:8). Page 10 of41Thus, well before legal enforcementaction is initiated by the.issuance ofa notice [i.e,, the NPCPJ the respondent is usually aware ofcharges
... 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. Bothjudicial and appellate oversight ofthe civil penalty enforcement action would help prevent "overzealous prosecution" and be the ''proof' offaimess in FAA civil penalty actions. 55 fed, Reg. 27548,27551 (Jul. 3, !990) (Discussion afFinal Rule). The FAA Administrator was "confident" that the independentadministrative lawjudges adjudicating civil penalty cases would "exet"cise 

### their discretion appropriately andjudiciously 

### to ensure fairness to the parties'' intheproceedings. 

### !d. at 27549. Thus, the scope ofthe court"s oversight ofthe ''fairness" ofthese proceedings begins at the inception ofthe civil penalty action and continues tmtil an initial decision is issued. 

### V, BRIEF OVERVIE\V OFFAIR ADVERSARlAL PROCESS Aspart ofits supportfor 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 briefoverview offair adversarial process, utilizing material in FAA Order2!50.3B, the Federal Register; and the American Bar Association's ('ABA") Model Rules ofProfessional Conduct ("'Model Rules"), is provided. 

### A. FAA's Goat 

### ofFair and Reasonable Process Pursuant to FAA Order 2150.3B, Chapter 

### 2.J(g), the FAA's enforcement**process~~** throughoutthe**proceedjng~must** 

### be "fair and reasonable," and ''perceived as fair by those subject to regulation" in order to be ••effective." FAA Order 

### 2150JB. Chapter 2.3(gJ. This tairness policy includes: [T]beright ofan apparent violatorto be given objective, evenhanded consideration ofall circumstances surroundingthe allegations before final action is taken. Italso requires good faith efforts to understand the apparent violator's position and take it into account. Page 11 of41.FAA Order2150.3B, Chapter 2.3(g). 

### B. 

### FAA Goa!- Objective, Unbiased, and Accurate Investigation When conducting initial investigations, FAA investigative personnel must "gather. and 

### accurately andcompleJely report al!jixts.,. i.11 

### an unbiasedand 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 ofthe investigation, the FAA investigator is supposed to exercise '·common sense and goodjudgment." 

### !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;\ Order2150.3B. 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. ifwitness statements are obtained by an investigator, such statements should identifY the facts the witness "perceivedby his orher 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 ofthe 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 

### ofthe 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 cxlrajudiciulcummenls llmt hav"

### a substantial 

### likelihood ofheighkning public condemnation ofthe accusecl
.
, . and exercise reasonabk careto 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 careto 

### prevent investigators, law enforcement personnel. employees orother 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 ProhibitingMisconduct 

### In addition. according to the Model Rules, 

### fairness in litigation proceedings is <echieved in 

### part by identifying and prohibiting misconduct: 

### [1] The procedure

# orthe 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 offairness and-objectivity in speech that govern all governmen1 prosecutions. Page 13 of41

### com:ealment ofevidence. 

### improperly influencing

**\Vitnesses~** 

### obstructive tactics in discovery procedure, and tbc like. Model Rules ofProf! 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 ofthe volume ofmaterials submilled, onlycertain matters will be discussed. As part of

### its Motion, theRespondent asserted that the I'AA 

### has "polluted" witnesses, including 

### DL Long, 

### a third party witness. (Mot., ll.) 

### ln supportofthisassertion, the Respondent presented written e-mail communications, preserv¢d by Dr. Long, 25 which codilied some ofhis eurly communications with Inspector Rushton during the initial investigation ofthis case (i.e., September 21, 2012 through October 13, 2012), During this time InspectorRushton w£cs seeking Dr. Long's cooperation in the FAA's investigationand 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, orshare information with. the Respondent. Did !he 

### F'AA improperly "pollute" the percepti!ms and testimony ofDe 

### Long, a thi:rd-party witness? YES. Beginning on September 21, 2012, inspectorRushton 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-mall communications were obtained by aSubpoena 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 ofDiscovery 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 14of41Long'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 ithad been proffered. He failed to preserve it in the FAA's investigative 

### file. lR Inspector Rushtonthen 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. Longhad conversed with Inspector Rushton several times, had 

### read the materials29 

### Inspector Rushton had given to him, and 

### was echoingInspectorRushton'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 ofthe t1ighl." (Mot, Ex. 

### J, Oct. 3, 2012, 7:49am e-mail). As partofthis e-mail request, Inspector Rushton advised Dr. Long that ''this is not a one time mistake 

### [by the Respondent]. This is a systemicissue and 

### it needs to be 

### corrected." (ld.) Shortly thereafter, Inspector Rushton asked Dr. Longto provide a copy ofthe "fake offer" given to 

### Dr. Long by the Respondent. (Mot., Ex. 

### J, Oct. 3, 20!2, 8:21am e-mail). That
same day, Dr. Longprovided a sbot1 supplemental statement. (Mot., Ex. J, Oct. 3, 2012 Dr. Long

n AccordinglO the emails., 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 ofsuch coh11iltin !cations. ?B During the May 5. 2.01-6 Motion Confetence, the FAA initially excused thls lack ofpresetvation 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, ifit was. o-nly a "duplicate" Ofthe first stateinent. the FAA proffered that the October r_, 20I2 Swtement had been an '"Incomplete duplicate" ofthe 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 ofthe "atrplarw craS.h 1' 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 of41Statement). Uponreceipt ofthis supplemental statement, Inspector Rushton e-mailed Dr. Long. and continued to disparagethe Respondent: Weall 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 ofa 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 specinc fact evidence the 

### FAA needed in orderto help prove the accusations againstthe 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 ordated by Dr. Long, and do not identify who actually wrote the materiaL (hi.) ln his multiplee-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, I0-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, 20I6
.. II:l0 am e-mail): 

### J. The Respondent was a repeat offender (i.e., "this is nothis 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, l0:57am e-mail); Page 16 of415. The Respondent needed

### to be"takendown."(Mo\, Ex.J, Oct. 12,2016, 10:57 

### am email): 6. The Respondent Wmild repeat the oftense(s) iftheRespondent 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. InspectorRushton e-mailed Dr. Longagain, 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. 11, 2016, 3:08pm email). ln this October 11,2012 e-mail, InspectorRushton informedDr. 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 answerthirteen (13) additional and 

### specill.c fact questions in writing, based on the unrecorded Octobet- I0, 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 ofthis 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 theproofofthe 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 2150.38, but argued Umt this did not give riseto 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, accordingto the FAA, 

### it wastheRespondent'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 of41**arg~ed** that Inspector**R~sbton's** e-mail communications were necessary in order to "encourage" DL Long to give a ''full accounting" ofhis experience with the Respondent. 

### (!d.). Thus, Inspector Rushton's multiple e-mail communications to Dr. Long should simply be viewed as "asking a witnessto provide a full and complete statement ofevents." (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 ofthe word ''tampering" was erroneous, because no criminal witness tampering had taken place, 

### 2. Witness Polluting Did Occur This Courtagrees that Inspector Rushton did not engage in acts amounting to cnminal wituess tampering. However, thefact that tlte polluting ur tamperiug ofDr. Long did not rise lo a level ofa chargeable crime"' is not dispositive ofthe 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, InspectorRushton was successful in all those efforts. ln his zeal to "catch" a possible safety oflender, lnspector Rushton abandoned the FAA Administrator's public promise thmthe 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** urpervening changes; as, to tamper with a document or a**lext~** to inteJ1'ere**improper~)i.'** 10Jn(!dd(e:-lo busyon;,;•se(jrashly.,." 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 § I512 (2014). Page 18 of41administered fairly <md objectively37 He did not conducthis investigation with any "good faith" or "even-handed consideration" of

### the Respondent's position or circumstances. Instead, Inspector Rushton rushed 

### tojudgment, and repeatedly expressed condemningjudgn1ents 

### and opinions about the Respondent with Dr. Long. 38 Inspector Rushton persuaded Dr. LOtcg to share his vilification ofthe Respondent, and to provide infonnation 

### as shaped and directed by the FAA. 

### This is a "polluting·· of, 

### or tampering with, 

### awitness. It is deliberately altering and shaping tbe perceptions and testimcny ofa potential witness to suit one's own goals. Such tampering destroys the credibility and 

### value ofany 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

### ofDr. Long 

### as a credible witness, 

### and also demonstrated his own lack ofobjectivity and fairness. Inspector Rushton's statements, as preserved by Dr. Long, are prohibited by both FAA Order 2150.38 and the ABA Model Rules45 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 badthat 

### the Respondent would be treated fairly 

### in !his particular enforcement proccss46 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 

## orproof is on me not tbem''), he did no[ role-model orimplement these standards lnllis invosiigaUon process.**-(~It** is we!! established thaL such conduct is prohibited. An attorney and ll!s staffmust 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.mberofhis staffsbou!'d "state a personal opinion**a~** to thejustness :JCa cause. rhe credibility ofa witness, for] the culpability ofa civil litigant" Model Rules ofProf'IConduct r. 3.4(e)
. ..;s The ABA M-ode! Ru!es specifically recognizes and discusses the '\miquc dangers ofimproper e.xtrajudicia! statemems" tCwgovernmem.prosecutors and their investigators. and provides specific direction on how w avoid such error. See. eg., 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**  Iit:.- "1 u t:.\er·c!::)c· n.::Jsundhk care" 10 pn .**.:l·el-~i** hu(h lu\-\
..**yt.-r~** md nun-LJH-') ere; -·,-\-;_-.;Iqin_;.: 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 ofthe 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 of41

### VII. INITIAL**lNH~RFERENCE** 

### \'I'ITH RESPONDENT'S RIGHTTO DISCOVERY The Respondentgenerally 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'sinvestigation 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 shapingDr. Long's opinions and perceptions." as well as promising to 

### "keep" Dr. Long ''out" ofthe 

### 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 ifyot; signed something, 1give you my word that you will be left out ofthis
_ .! 

### know you 

### don'twantto be involved and l will keep you out ofthis[.] 

### Mot., Ex. 

### J, 

### Oct. 3, 2012 e-mail. One day later, on October 4, 2012, Inspector Rushton asked Dr. Long to "keep all ofthis to yourselfto belp us.'' 

### (Mot Ex.

### J, Oct. 4, 2016, 3:36pm email.) He also told Dr. Long thatthe 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: Long 1sfirst 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 of41confirmed 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 ofthe 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 InspectorRushton (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 J2, 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 "thehammer is about to fall''(ld.) Inspector Rushton encouraged Dr. Longto believe that the Respondent had deliberately endangered Dr. Long's wife and family. 

### (Id.) The Respondent had "played" with sal'ety olDr Long's fa'Tlily, becausethe Respondent was greedy and selfish and guilty. Ud.) 

### This is about greed, and a complete lack ofconcern for others and safety all in the interests ofmaking a buck. He proved to me that he doesn't care and that's why he needs to betaken 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 orhow he shm1!d respond to the Respondent's subpoeita
.

. \()See, in the Matter of RoyalAvionicsSys., Inc.,. CP99WP0021, 2002 WL 1042303, m

## *3 (Apr. 15, 2002) ("'Although a letter ofinvestigation does not sat_isfy the limitation pe:rlod sel forth in 49 U
..S.C. 

### S4630i(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 Mallerof Wede, FAA OrderNo. 97-20 at 8-9 (May 23, 1997)). Page 21 of41InspectorRushton also subtly wamed Dr. Longthatthere could be negative consequences 

### ifDr. Longspoke to theRespondent: Do what you wantand I don't care, but understand this, this is not his i1rst rodeo. Ifhe walks he will do this again to somebody elsejust 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 preservedrecords, InspectorRushton 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 testimonyabout the Respondent secret (Mot. 11; Ex. 

### J, Oct. 

### 4, 2016,3:36 am email), and successfully persuading Dr. Longto 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 offairness tor the civil penalty enforcementprogram. The FAA in this case has failed to abide by the fundamental concept, well-established in Americanjurisprudencethat an accused person is innocent until proven otherwise, and that such person has the right ofaccess to discovery. This concept was tlDtonly adopted by the FAA Administrator when he establishe,d I he safety

su Neither Inspector Rushton nor Dr. Long kept atelephone record log t·egardi-ng_ Inspector Rushtonjs voicemai! message. It must be presumed, on beba\fufthe Respondent, that the voicemail message contained simlJar condemnations ofthe 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 inthe ABA ModelRules.52 Sanctions shouldbe imposed. 

### Vlll. ALLEGATION OF PHYSICAL EVIDENCE DESTRUCTION The Respondent's allegation ofphysical evidence destruction54 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 destroyedand/or lost cettain electronic investigative material. including all (or most) ofInspectorRushton's e-mail CotTespondence with DL Long. (Resp. 2). The FAA first argued thatInspector Rushton s e-mail communications were not relevant, and so their destruction or loss was not relevant. Altematively, the FAA argued that even ifInspector Rushton's e-mail communications
were relevant to the case, theirdestruction was inadvertent. As part ofthis argument, Inspector Rushton testified thathe 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 ofsize 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 ofthe electronic evidence had been routine and inadvertent 

### A. FAA's Goal • Pnset•vation ofRelevant

### Evidence Accordingto 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 ofProf' I Conduc-r r. 3.8 ..:mt. (''[1] .'\

**;~n·~:.,.,'-·culur** lw:j tlK'

**rr~·:-;jwt~sibilily** \. 1

### i'

**~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 ofdestroyed evidence

**i~** often referred to as "spoliadon" ofevidence
.. Jay-E. Grenig & JeffreyS. Kinsler, Federal Civil Discovety and Disdosure, § 16: I (3d ed. 201 5). Page 23 of41Investigative Report" ("EIR"), 

### which "initiates"

### the EIS database record55 

### for the case. (FAA Order2150.3B, Chapter 9.3(a).) The EIR is the critical "meansfor documenting, assembling, organizing, and presenting all evidence and other relevantinfommtion obtained during an investigation." FAA Order2150.3B, 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, Chapter4.2(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 ofthe event" (!d. at 9.3(u)), and maintained for a minimum period offive (5) years afterthe civ[l penalty has been paid (or waived). FAA Order 2150.3B, Chapter 2.lO(b)(2). In addition, during all phases ofthe investigation. the FAA investigator is supposed to exercise ·'common sense and goodjudgment."' (FAA Order 2150.3B. Chapter4. l .) 

### B. 

### Preservation Even Before Formal Litigation Commences The FAA's preservation guidelines durrng the initial investigation, as outlined in FAA Order 215DJB, 

## 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." lfa 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. ProofofFacts 3d 1 (Originally 

### published in 2012) (footnote omitted). 

### This requrrement for preserl'ation and disclosure ofevidence ·'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 of41E. Grenig 

### & Jdrrey S. KinskL. 

### Federal Cidl 

### DiscoveJ)' and Di.ldO.I'I!re. 

### § 1:1516:1 

### (3d cd. 

### 20151. ft cannot be overemphasized that 

### anywriting ororher mauer relating 

### tv a ease, which is either in the possession or control ofan adversary. is subject to disclosure. The type ofmaterial subject to preservation anddisclosure "must be liberally construed.'' 

### '27 C.J.S. 2d 

### § l04 (2011). This obligation ofa party to preserve and disclose what 

### it has under its control is "based on ancient principles ofequity," 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 otherpotential 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 reviewprocess, documents mightbe added to, or selectively deleted tram. tbe !File, Ifthe 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 duringthe adjudication phase ofthe case. might (or might not) include all ofthe preserved !File materiaL (May 5,2016 Tr. 49:2-22.)

Page 25 of 41The 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 gatherand preserve "all evidence and otherrelevantintonnation obtained during an investigation" (FAA Order 2150.3B, Chapter 8.1 ). the FAA counsel Would be unaware ofsuchomission. (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 

### ifI 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 ofthose emails he detenninedto 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 ofthe ''relevant" e-mails he exchanged with Dr. Long5 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

# ,! I0.)Among other arguments, the FAA asserted that Inspector Rushton's destmction of evidence was part ofa routine deletion, because ofemail storage limitations with anold computer program. This argmnent

### by the FAA was unpersuasive.

56 This internal disconnect between FAA counsel and lhe; FAA investigative staffappears to deviate from recoti1mended practicein fair adVersaria! proceedings. See. e.g.. l\·todd 1\t;!es of Pmi''l Condud 1·. ·ut cnL 6 :md Fn :17_

**:..:~rpr;_L**

**~~I!** is notcwonhy that neither Inspector Rushton nor FAA counsel everspecified which, ifany. ofDL Long's pteserv-ed ernails lnspec:tor Rushton thought he had saved-as "relevaht" to the ca;;e Page 26 of41All partiesto the litigation are required to preserve ... evidence, Therefore ... once the plaintiffhad access to the relevant infonnation, the plaintiffneeds to take aflinnative steps to preserve the information and cannot blame the defendant ifit is destroyed. 126 Am. 

### Jur. ProofofFacts 3d 

### 1(Originallypublished in2012) The FAAhad the responsibility,just as the respondenthas dming the investigatioil phase, to preserve relevant data tor litigation. 

### In the Matter ofRoyal

### AvionicsSys.. Tnc., CP99WP0021, 2002 WL 1042303, at *3 (F.A.A. Apr. 15, 2002)("Aithough a letter ofinvestigaiion does not satisfy the limitationperiod set forth in49 U.S.C. 

### §46301(d)(7)(C) or in 14 C.F.R. 

### § 13.208ld), it does notify a respondentthat preserving evidence may become necessary" citing In the Mailer 

### o(W('I'le, FAA OrderNo. 97-20 at 8-9 (May 23, 1997)). Tile F.AA has a variety ofoptions and resoHrces to ensureretention oflitigation data, but it failed to preserve il in this case. The FAA also arguedthat the destroyed e-mails were not relevant, because they did no! directly prove or disprove the allegations againstthe 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 ofdiscovety includes any non-pri\·ileged maUcr that is 

### relevanl ro any 

### p-arty·sclairn 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, eitherdirectly or 

### by inl'erencc between the evidence and a 

### l'ad lobeproved. 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 orretain every document in its possession ... it is under a duty to preserve what it knows. orreasonably should kn<)". is relevant in the aclion. is reasonably ealculaled to lead to tl1e discovery ofadmissible 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 of41**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 

### ofpreservation 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 ofevidentiary 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 ofourjudicial system, whose goal is to lind the truth through honest and orderly production ofevidence under established discovery rules. Grenig &Kinsler, 

### supra, § 

### 1:1 I, Inspector Rushton's lack oftraining 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 ofwhat actually happened, but at the lime l deleted these emails, 

### pmbobly eirher 

### didnotrealize !neededto keep them, orthought 

### I had already prinlelllln-:m 

### out, and

### then deleted 

### them not realizing that there was no hardcopy. Resp., Att. A, Declaration 

### ofYancey Ruston, 2,

**~** 10 (italics added).) 5. I have reviewed rhe portiDns oftheemails between Dr. Long and I that are printed inthe "Motion for Sanctions." I did not include these e-mails as 

### Ttems of

### Proofin the EIR because, in my

### judgment thee-mails where l encourage Dr. Longto tell the whole truth about the flight dido't prove or disprove anything aboutthe case, and Dr. Long's initial writ!en statement was incomplete and duplicative ofhis more complete, later written statement. We 

### ·do not include every single e-mail exchange as Items of

### Proofin our ElRs
.. only those that add somethingto 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 Respondentand that he believed "seemed 

### important'' lothe FAA's

### proofof

59 Based on [he record, it [s_ unknown what ·:::::mmal_l .communications (ifany) Inspector

**Ru;~hton** ultimately did preserve and lnclude In the EIR a5 ;'relevant' materiaL Page 28 of41the 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 thatmight have 

### been helpful to the 

### opposing side. 

### See, e.g., ABA 

### Model Code Rules 3.4 and 

### 53. Therefore, 

### it 

### must be asswned on behalfofthe

**Respondent~the** disadvantaged

**pat1y~that** InspectorRushton 

### 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 adjudicationtime period (December

### 5, 2014- present). In its Motion, the Respondent alleged that the "behavior andconduct" ofthe FAA counsel "completely compromised the integtity of the case." (Mot, 

### Jl.) As part ofthe 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. Longto consider hem he might avoid disclosing information requested 

### by the Respondent's 

### subpoena. For example, on August 21, 2015, the FAA attorney notifiedDr: Long via e-mail that
even though discovery '"teclmically ends today" tbe partieswere going to continue to "provide each 

### other with infonnation pastthe close ofdiscovery," IMoL, Ex. M, August 21, 20164:

### J0 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 ofthe Respondent was not accurate,60 nor was il necessary. Approximately onemonth 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 t5 Order Setting Litigatlon Dates and Pr<1cedurcs schedul-;;: for period oftime. 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 ofAugust 21. 2015, It ·was the "FAA who still had not yet

**re~ponded** to the Respondt-lil's April 20, 20 i4 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 41CF.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 September30, 20 !6 e-mail, the FAA attorney notified Dr. Long**tha~** the Respondent had requested a subpoena. The F.I-\A attomey then opined thatthe Respondent was acting improperly in seekingthe subpoena. The FAA attorney recommended to Dr. Long thathe and/or his attomey might look for ways to avoid answering the subpoena on mu!iiple grounds: 

### IF and when youreceive such a subpoena, please contact me (orhave your attorney contact me). The requests appearto 

### be improper in whole or in part in that 

### we are past

### thepoint 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, ofcourse, be able 

### to identify other problems with regards to this request. Ifyou reeeive the subpoena, you will be**r~guired** to comply withit w1less something is filed with the 

### comt seeking relieftromthe 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 subpoenapursuant to 14 C.F.R. 

### § 13.228(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 ofthe subpoena, and opined that the Respondentwas asking for ''a lot or information." (Mot.. Ex. K: Oct 27,2015 10:00 am e-mail). That same dav, on October27, 2015, the FAA attoroev responded to Dr. Long. The FAA 

## - . 

### - attorneycriticized the Respondent's action in obtaining the subpoena, and re-recommended that Dr. Long or his attorney consider avoiding answering the subpoenaon multiplegrounds: 1would like to speakwith you and/oryour attomey (at your option) about responding to this subpoena. As 1mentioned thelast 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 41how burdensome they would be withom your input An objection andior motion to quash to 

### SO!Tre or all ofthe 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 October27, 2015. (1\'lot., Ex. K, Oct. 

### 17. 2016 1:23p.m. Dr. 

### Long e-maiL) The record does not reflect whether suchcontact occutTed, and ifitdid, 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 ofdiscovery obstruction, the FAA asscJted 

### that it 

### had done nothing improper. The FAA 

### assened that the Respondent's requestand service ofthe 

### subpoe!la 

### on Dr. Long was untimely, and in violation ofthe 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 thecourt'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 FA/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 offairness 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 duringboth the April 

### !3, 2016 and :vlay 5, 2016 Motion Conferences, this Court mmnot agree with

**th~** FAA's assertion thatthe 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 ofthe 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. 2016I Page 31 of41to allow the parties to complete discoveryexchange, file and argue any needed pre-hearing motions, and to propose a new litigationplan 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 anyjoint 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 ofthe April 7, 2015 Order. In fact, the June 19, 2015 deadline wasprovided for the part1es to "issue subpoenas and/or mutually arrange 

### for !he depusitium

### ofwimesses andexperts'' priorto 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 thirdparty 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. 

### Ifdiscussion 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 ofa subpoena on Dr. Long was not a violation ofa court discovery deadline. lt was not an untimely anemptto schedule a deposition with Dr. Long. The subpoen& was not directed to the FAA or any employeeor agent ofthe FAA. The subpoe!1a was not attempting to compel the FAA to·'disgorgc whatever !acts'' it had its "'possession·· as pan ofa 

### 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 of41Instead, the Respondent was engaged in independent investigation and fact gathering fl-om two (2) third patty witnesses, Or. Longand Aviation Services Group.62 The Respondent·s subpoena for Dr. Long was obtained from the Hearing DocketClerk on September 23,2015, which was only three (3) weeks after the Court had continuedthe November 2015 Hearing to September

### 2016, and directed 

### the parties to complete their discovery63 

### 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 ofthat 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 competitiverelationship 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 ofmaterial to the opposing side. 

### See also, DiversifiedI!?dustries, Inc" v. Meredilh, 

### 572 F.2d 596. 604 (8th

### Cir.1977) ("Prudent pat1ies anticipate litigation. and begin preparation priorto the time suit is formally

62 The Respondenthad 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 ajoint proposed p!'an on orL1e-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 ofthepanies' mutual obligation to conduc-t tactual investigations is contained In A{rh0n!e

**Mainh~nanc.:::** andEngine-eringServices, FA!\ Dockel FAA-20 13-0291 (Order DenyingResponde-nt's Motion to Compel Discovery ofFAA Attorney's Work Product) !Allg. 19, 20 14). M, The. I'Vork ProductDoctrine is acomprchtmsive- study ofthe history and deve.!opmern ofthe work product doctrine anC the application ofRule 26(b)(3), from cnrnmon knv to !983 (the date- ofpublication). While- nor ful1y comprehensive for t.oday's cases in 2016, itremains a valuable resource for practltloners. "See, 55 Fed. Reg. 27548,27556 (Jul. 3, 1990) (Discussion ofFinal Rule), and Fn. 46,supra. Poge 33of41commenced,"), [tisrecognized, however, that investigations may be ongoing. In such circumstances, the panies have an obligation lo supplementdiscovery 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, butalso to affirmativelyprotect their opponent's right to conduct anindependent investigation. Model Rules ofProf'

### IConduct at r. 

### J.4(a). The ABA Model Rules specifically mandate thata la\Vyer "shall 

### not ...connsel or assist" anyone (other than a client) to "refrainfrom 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. Certainlya lavvyermay render "candidadvice" to his own client. Model Rules ofProf! Conciuc:t r. 2_ 1 (Am. BarAss'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 lawyermust 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 ofthis 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 obstructthe 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 of41

### X. ALLEGATIONS OF OTHERDISCOVERY 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 panof its Motion. the Respondent alleged that even 

### ifthe FAA counsel had been ignorant ofInspector Rushton's earlier destruction ofrelevantevidence, Dr. Long provided his email records to the FAA by August24, 20J

### 5, and the FAA failed to disclose those records. (Mot., Ex. M. Dr. Long's Aug. 21.2016,5:04pm email). The Respondent's argument regarding what the FAA attorney knew, and/or had in his actual possession from Dr. Longbetween the dates ofAugust 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 ofAugust24, 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, onorabout August24, 2015 Dr. Long had provided only eleven (11) documents, seven (7) 

### ofwhich 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 ofDr. Long's additional materials duringtbis 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 ofmaterials be produced in response tu the Respondent's sttbpoena in November 2015. The Respondent asserts that FAA cow1sel failed to n1ake ''reasonableinql.liry" regardingthe documents. (Supplement, 5.) There is meritto

### this argument. Based on the FAA counsel's testimony, 

### it appears he ti"amed his August 20l5 discovery request to Dr. Longto limit materiaL Specifically, his request to Dr. Long was narrowly focuse.d Page 35 of41

### on obtaining "emails aboutthe flight" (Resp. Ex. B, 1**~** 

### 5), instead ofhis more expansive request to [nspector Rushton (and others), asking for "any statements taken about the case, any emails to orfrom 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 whythe Respondent made certain assumptions. Hovv·ever, absent any other evidence by the Respondent this Court accepts the FAA's coc,nsel's testimonial statementas dispositive on this issue, and the Respondent's allegation is deemed notproven, B. 

### Did the FAAfail 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 ofInspector Rushton's preserved EJR (i.e
.. the materials thatInspector Rushton chose to preserve) have twice been released to the Respondent: 1) 

### sometime (date unspecified) alter receipt ofthe Respondent's informal March 16, 

### 20I3 request (i.e., filed eight (8) days after the issuance ofthe March 8. 2013 NPCP); and, 

### 2) on April I7, 

### 2015 as partofthe FAA's discovery response. (Resp. 

### 2.) Jn audition, the FAA counsel submitteci a Declaration identifyingthe 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 ofdata that InspectorRushtonchose to preserve in the E!R 

### is no! dispositive. TheFAA 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 I5 Hearing to September20 I6, and Granting Other Re-lief Page 36 of 41preserve 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 ofDr. 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 preservationofevidence 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 datacreated. 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 ignorantof its actions. Instead, the FAA attorney'sjob 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 ofsanctions under multiple FAA Rules. based in part on both discovery violations after CourtOrders were issued and for generc.l discovery 

### "lon-compliance. It 

### is well-established that the imposition ofsanctions 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 ofthe court. 

### !d. 

### §§ I:96, 

### J2.3. In order to be effective, sanctions must be 

### applied diligently to 

### penaLize those whose conduct

### wanants such action. 

### lei. § 12:1. Page 37 of41/

Inadversariallitigation, sanctions may range from merely drawing anadverse inference 

### limn the suppression ofthe evidence 

### to very serious preclusions, including dismissal ofthe o!Tendingparty's case. 71} 

### /d.§ J:ll;seealso,27 CJ.S. 2d 

### §§ !04-117 (2011). Ifdiscovery sanctions are imposed, shmi ofdismissal ofthe case, such sanctions are generally not reviewable until the end ofthe 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 negligentor willfi.tlly; 2) the efficacy oflesser sanctions; 3) the importance ofthe information 

### sought in discovery; 

### 4) whether 

### the offending party everprodtmed the 

### inlormatiun and how; 5) the 

### public policy aspects ofthe 

### litigation; and 6) the remorsefulness ofthe 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 withits 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 ofcourt orders. 71 C.,LS. 2d 

### § 683 (20l1 ). Obviously certain e-mails exchanged between 

### Inspector Rushton and Or, Long, although destroyed by Inspector Rushton, have been recovered from Dr. Long via subpoena. Ifthe recovery ofthis 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 ofthe 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 ofourjudicial 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 ofthe 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 emails were exchange-d- long after the Respondent) sopportunity [0 gather

**~'fresh"** and C-Omple-te evidence during the investigation phase had expired. Page 38 of41enforcement program-totreat an accusedfairly and objectivelythroughout all stages ofa proceeding;71 2)the FAA willfully influenced and tainted theperceptions 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 ofthe proceeding; 5) the FAA willntllyand persistently condemned 

### and disparaged 

### the Respondent from the initial investigation 

### stage through the adjudication phase ofthis action; 

## anti 6) 

### the FAA actively obstructed discovery during the adjudication phase of

### the proceedingwhen it encouraged 

### DL Long and

### his attomey to avoid answering the 

### Respondent's subpoena< The entirerecord 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 notjust individual discovery failures in non-compliance 

### with Cmut orders and discovery requests, they are a demonstration ofwillful 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 ofthe enormity ofthe FAA'stask 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 ofwhom either ignorantly or willinglytry to avoid compliance witt1 safety regulations< lt is a difficulttasL But it is a task that is possible to accomplish withoutviolating or circumventing the due process faimess standards thatarelhe bedrock ofboth the FAA Administrator's enforcement program and federal litigation a;; 

### whole< It might be hoped thai the fucts ofthis particular case highlight an isolated incidenl and
rare exception in the FAAinvestigation Field Offices, instead ofa hidden 

### nom1< However, the FAA's casual dismissal oflnspector Rushton's conduct and communications as "necessary" (Rcsp< 11. fn< 4), its argumentsthat 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.** ltcannot be talcu!ated how many people have now heard some varlation ofInspector Rushton's viliilcation ofthe Respondent, in the three and a half(3_5) years-since the investigation ofthls case firs( began. Page 39 of41Long were simply pmt ofany FAA investigator'sjob when "asking a witness to provide a full and complete statement of**events~,** (Resp. 12), its failure to preserve relevant evidence, its persistentvilit1cation ofthe Respondentduring a pending action, its ongoing attempts to obstruct tl1e Respondent's right to discovery, 

### and its lack ofany 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 thatthe aviation community and members ofthe public. who had filed written concerns about an FAA internally administered program. would 

### be won over with the FAA's administration ofa fair civil penalty enforcement program: [T]he agency believes the civil penalty assessment authority has been administered fairly and in goodfaith from its inception, and fully expects to win the confidence ofthe aviation community, as well 

### as the general public
__ 55 Fed. Reg. 27548,27551 (Jul. 3, 1990) (Discussion ofFinal Rule). The FAA Administrawr's expressed hope did notmaterialize in this particular case. The FAA's ''no harm", 

### it was ''necessary", it was the Respondent's fault, it wasjust 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 contraryto both the FAA Administrator's published goals offairness in administeringthe 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 enforcementprogram as a whole. This Cou1t has engaged in a very careful consideration ofthe record to determine what sanction(s) would be propottional and appropriate, not onlyto address the provenmisconduct 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. 27548 7 2755l (JuL 3, 1990) {Discussion of-Flnal Ru!e)(the respondent'S rights offaimess and due process begins.at the inception ofthe FAA's inves-tigation and continues lhrough 10 Lhe final resolution ofany accusation} " As noted e0 r·lie.rherein. the FAA asserted that FAA counsel had only a 111arginal role in the fAA Field Ofl1ces investig;nion practices, except to actas an occasional consultant. (May 5, :ZO 16Tr. 52: 1-18) Assurnirlg thi:s is accurate, il: means that the FAA enforcementprograrn 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 ofits-**inv~stigative** employees w ensure due process compliance. Mode-l Rules ofProf! Conduct r.-3.8. Page 40 of41

### also to 

### deter any future misconduct 

### llfa similarnature. All the facts in this case, the wellestablished legal and professional standards in the litigation process, caselaw, legal sources. and the possibility ofimposing various less severe sanctions have been reviewed and considered in depth. This Court has also considered the seriousness ofthe conduct, the impact the conducthas had on both the case and in the administration of justice, and whetherthere was a pattern of wrongdoing throughout the proceeding. As detailed fully inthis 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 strikethe applicable portion ofthe FAA'spleadings_ Pursuantto 14 CF.R. 

### §§ 13.217(1)(1) and 13.220(n)(l), ihe instructive guidance ofRule 37, and afterreviewing 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 oftheFAA's December 15,2014pleadings are hereby stricken as a sanction 

### loo· the FAA's misconduct in this case: Paragraph It page 1 

### §§ (2) and 

### (3). No facts regardingthese two stru.ckpleadings may be introduced into evidence. 3. Upon receipt ofthis Order, either pany may move 

### lor additim1al relief.

Attachment: Service List

Page 41 of41DocketNo. FAA-2014-0867 (Civil Penalty Action) SERVICELIST- BY U.S. MAIL ORIGINAL 

### & ONECOPY Federal Aviation Administmtion 80() Independence Avenue, S.W. Washingtcon, DC 20591 Attention: Hearing DocketClerk, AGC-430 Wilbur Wright Building-Suite 2W1 000 1



### Mr. Christopher 

### R. Stevenson 

### Complainant's Counsel Federal Aviation Administration Oftlce ofthe 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·LawJudge Office ofHea.Iings, M-20 U.S. Department ofTransportation 

### ONE COPY

Birmingham Flight Center, Inc. 

### Respondent 4243 East Lake Blvd. Bim1ingham, AL35217

1200NewJersev Avenue, S.E. (Ell-310) 

## -

. . Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536

1 Service**~.vas** bjl U.S. Mail. Furservice 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,