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 UNITED STATES OF AMERICA

 DEPARTMENT OF TRANSPORTATION

 OFFICE OF HEARINGS

_________________________

 :

IN THE MATTER OF: :

 : FDMS No.

WILLIAM A. CURTRIGHT, : FAA-2015-1319

 :

Respondent :

_________________________:

 Thursday,

 December 8, 2016

 The teleconference convened, pursuant

to notice, at 1:30 p.m.

BEFORE:

 THE HONORABLE J. E. SULLIVAN,

 U.S. Administrative Law Judge
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APPEARANCES:

 On Behalf of the Complainant:

 DAVID F. SHAYNE, ESQ.

 of: Federal Aviation Administration

 1601 Lind Avenue S.W.

 Renton, WA 98507

 425-227-2165

 david.f.shayne@faa.gov

 On Behalf of the Respondent:

 DR. WILLIAM A. CURTRIGHT, DBA, pro se

 P.O. Box 1250

 Jefferson, OR 97352

 503-209-7388

 ames@amesresearch.com

ALSO PRESENT:

 SUSAN BIRD

 JEFFREY KAMBERG

 CODY SMITH
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 CONTENTS

RESPONDENT

NO. MRK'D REC'D

1 - 12 Compendium of

 Respondent's Exhibits

 attached to Respondent's

 motion for summary

 judgment

 dated 26 October 2016 7 7

RESPONDENT'S REPLY

NO. MRK'D REC'D

1 - 3 Respondent's reply to

 Complainant

 dated 14 November 2016 8 9
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1 P-R-O-C-E-E-D-I-N-G-S

2 1:35 p.m.

3 JUDGE SULLIVAN: We're on the record

4 in the matter of William A. Curtright. This is

5 Docket No. FAA-2015-1319. Today is Thursday,

6 December 8, 2016 and the parties have convened by

7 telephone for a motion conference combined to a

8 litigation scheduling conference.

9 The Federal Aviation Administration,

10 which I'll hereinafter refer to as the FAA, is

11 represented by its Attorney of Record, Mr. David

12 F. Shayne. The Respondent, Mr. William A.

13 Curtright, is present and acting as a pro se

14 litigant.

15 Also present with the FAA is a Mr.

16 Jeff Kamberg, a paralegal with the agency. 

17 Appearing as an observer with the Respondent, Mr.

18 Curtright, is Susan Bird, his executive

19 assistant. In addition, sitting in as an

20 observer at the Office of Hearings is Mr. Cody L.

21 Smith, an attorney advisor with this office. So

22 good afternoon to you all.
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1 What I'm going to do is I'm going to

2 briefly identify what brings us here today by

3 referencing the last order that was issued by the

4 Court. On November 18, 2016, there was an order

5 issued reserving the Respondent's motion for

6 summary judgment, setting deadlines, and adding

7 agenda to the previously scheduled telephone

8 conference that was set for today's date and

9 time. And essentially, in this particular order,

10 there was an identification of the four documents

11 that Mr. Curtright had filed on October 31, 2016

12 as well as the recognition of the FAA's response

13 filed on November 3rd, 2016.

14 There was, subsequently, on November

15 14, 2016, a reply memorandum filed by the

16 Respondent in which the Respondent had attached

17 three new reply exhibits. And then on November

18 16, 2016, the FAA filed its own motion for a

19 partial decision which was a cross motion for

20 summary judgment. And subsequently, on November

21 22nd, 2016, Mr. Curtright filed his response and

22 objection to that particular motion.
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1 So we have a lot to discuss because we

2 also had on our plate prior to these motions

3 being filed, the reserved motion to dismiss that

4 had been filed by the Respondent on September 19,

5 2015 and reserved by this Court in an earlier

6 proceeding. And then we also have a very recent

7 motion filed by the Respondent, that being on

8 December 6, 2016 earlier this week, a motion to

9 compel. So I'm going to try and utilize our 90

10 minutes very, very expeditiously. I'll ask the

11 parties to help with that expedition.

12 So let's start first with the

13 Respondent's motion for a summary judgment and

14 that particular motion had a variety of different

15 exhibits, 1 through 12, and there was no

16 objection filed in writing to those exhibits.

17 Mr. Shayne, do you have any oral

18 objection at this time that you would like to

19 make, if any?

20 MR. SHAYNE: Well, not to Your Honor

21 considering the exhibits. I don't think any of

22 them prove anything, but in terms of --
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1 JUDGE SULLIVAN: We're only talking

2 about it --

3 MR. SHAYNE: -- having them, no, I

4 have no objection.

5 JUDGE SULLIVAN: Yes. I'm only

6 talking about admissibility at this point.

7 MR. SHAYNE: No, no objection.

8 JUDGE SULLIVAN: Okay. So what I'll

9 do is I'll simply note that there is no objection

10 by the FAA to the Respondent's Exhibits

11 identified as 1 through 12 attached to the

12 Respondent's motion for summary judgment filed

13 with this office on October 26, 2016. 

14 (Whereupon, the above-referred to

15 documents were marked as Respondent's Exhibits 1

16 through 12 for identification and received into

17 evidence.)

18 JUDGE SULLIVAN: The FAA's response to

19 the Respondent's motion dated and filed November

20 3rd, 2016 did not contain any exhibits, so I'm

21 going to move then to the Respondent's reply

22 filed on November 14, 2016. This particular
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1 reply contained three new exhibits identified as

2 Exhibits 1, 2, and 3. And what we need to talk

3 about is whether we should just reference them as

4 Reply Exhibits 1, 2, and 3 or consider re5 designating them as Exhibits 13, 14, and 15.

6 Mr. Curtright, you are the proponent

7 of these exhibits. Do you have a preference?

8 DR. CURTRIGHT: No, Your Honor, not at

9 this point.

10 JUDGE SULLIVAN: Okay.

11 Mr. Shayne, do you have any thoughts

12 on that?

13 MR. SHAYNE: No, Your Honor.

14 JUDGE SULLIVAN: Why don't we just

15 then identify them as the Reply Exhibits 1, 2,

16 and 3.

17 (Whereupon, the above-referred to

18 documents were marked as Respondent's Reply

19 Exhibits 1 through 3 for identification.)

20 JUDGE SULLIVAN: And I think that will

21 make it easiest in terms of referencing, we won't

22 have to remark them, and the appellate body will
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1 then know what we're talking about if we

2 reference a reply exhibit versus a motion --

3 primary motion exhibit.

4 JUDGE SULLIVAN: Mr. Shayne, the Court

5 had given you a deadline of December 1, 2016 to

6 file any objection to the admissibility of these

7 three new reply exhibits. And my file record

8 shows that there was no objection filed. Is that

9 correct?

10 MR. SHAYNE: That's correct, Your

11 Honor. It's all part of the FAA Order 2150.3(b)

12 which Your Honor could take judicial notice of

13 anyway, so I saw no point in objecting.

14 JUDGE SULLIVAN: Okay. And then I

15 will note that Respondent's Reply Exhibits 1

16 through 3 are hereby deemed admissible without

17 objection.

18 (Whereupon, the above-referred to

19 documents were received into evidence as

20 Respondent's Reply Exhibits 1 through 3.)

21 JUDGE SULLIVAN: And if I did not make

22 that clear regarding Respondent's Exhibits 1
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1 through 12, I will do so now. Those are also

2 deemed admissible without objection.

3 Let's talk then a little bit about the

4 exhibits in terms of the FAA's cross motion, and

5 I need to move some files to do that. So the

6 FAA's cross motion was filed November 16, 2016

7 and it, again, contains no attachments or

8 exhibits. So I'll look then at --

9 MR. SHAYNE: I'm sorry, Your Honor. 

10 This is David Shayne. It did. We did submit

11 exhibits with this.

12 JUDGE SULLIVAN: I have a motion for

13 partial decision on summary judgment and --

14 MR. SHAYNE: Yes. There were six

15 exhibits attached.

16 JUDGE SULLIVAN: I see none, so --

17 MR. SHAYNE: Well --

18 JUDGE SULLIVAN: -- let me ask you

19 this. Let me ask you this. In terms of the body

20 of your motion, there didn't appear to be any

21 reference to exhibits. Can you show in the body

22 of your motion where there are references to the
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1 exhibits?

2 MR. SHAYNE: Well, I don't know that

3 I did, but there were, in fact, six attachments.

4 JUDGE SULLIVAN: There were none filed

5 either by fax or by mail, sir.

6 MR. SHAYNE: Okay. Mr. -- I'm going

7 to ask Mr. Kamberg to address that. There's --

8 JUDGE SULLIVAN: Well, I'm certainly

9 willing to give you a chance to talk to him

10 privately, but he has no standing to speak before

11 the Court. So we'll wait patiently if you want

12 to consult quietly.

13 MR. SHAYNE: Thank you, Your Honor.

14 JUDGE SULLIVAN: Sure.

15 DR. CURTRIGHT: Your Honor, Ames here. 

16 I don't have the exhibits here either in

17 reference to that.

18 JUDGE SULLIVAN: Mr. Curtright. I'll

19 wait -- if you'll wait patiently, I'll get to

20 you.

21 DR. CURTRIGHT: Yes, ma'am.

22 JUDGE SULLIVAN: Thank you.
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1 (Pause.)

2 MR. SHAYNE: Your Honor, I think I've

3 cleared up the mystery. When Mr. Kamberg faxed

4 the copy that he faxed, he said there were

5 attachments, but they were not included in the

6 fax because they're voluminous. So my guess is -

7 - and I bet you didn't get the hard copy yet,

8 correct?

9 JUDGE SULLIVAN: Incorrect.

10 MR. SHAYNE: Oh, you did get the hard

11 copy?

12 JUDGE SULLIVAN: The hard copy was

13 mailed and then received by this office on

14 November 21, 2016 and there's no attachments to

15 that either.

16 MR. SHAYNE: Well, there should've

17 been. I have a certificate of service, says that

18 --

19 JUDGE SULLIVAN: And if you look at

20 the certificate of service that says, motion for

21 partial summary -- motion for partial decision

22 summary judgment has been served. And there's no
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1 reference to attachments, either in the body of

2 the document or on the certificate of service.

3 MR. SHAYNE: How about -- does Your

4 Honor have the fax that says, the attachments are

5 voluminous so they will be in the U.S. Mail? 

6 Does Your Honor see that document?

7 JUDGE SULLIVAN: I do see the cover

8 sheet that says so and they were not.

9 MR. SHAYNE: Well, I have no

10 explanation for that. We do, however, have a PDF

11 of the document. I believe we have a -- can I

12 have a moment, Your Honor, with Mr. Kamberg?

13 JUDGE SULLIVAN: Sure.

14 (Pause.)

15 MR. SHAYNE: Your Honor, we have a PDF

16 that has everything on it. I could simply attach

17 this to an email right now if you would like. 

18 But Mr. Kamberg is very insistent that what I

19 have here in my office is an exact replica or

20 duplicate of what was put in the mail. So we

21 have no explanation as how or why they got

22 separated, but we maintain that when this
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1 document was hard copied out of our office, the

2 attachments were there.

3 JUDGE SULLIVAN: Well, thank you for

4 that and I appreciate your offer to serve the

5 Court by email, but we have no email server for

6 you to send it to.

7 MR. SHAYNE: Well, I have Mr. Smith's

8 email. I can just attach it and email to him.

9 JUDGE SULLIVAN: Well, Mr. Smith is

10 not an email recipient for service of documents

11 here.

12 MR. SHAYNE: Your Honor, the -- okay. 

13 Again, then the only thing is we would ask

14 permission to re-serve the document. It was

15 served. We do maintain it was served. We

16 maintain that something happened to it in transit

17 or on the recipient end; however, we'd be more

18 than happy to serve it again. And then perhaps

19 we should continue this until Your Honor has

20 received and has a chance to review the

21 attachments as well.

22 JUDGE SULLIVAN: Let me ask you, Mr.
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1 Shayne. And thank you for making that offer. 

2 You indicate the attachments are voluminous. How

3 many pages are you talking about?

4 MR. SHAYNE: So I think 40 -- well,

5 wait a second -- 40 -- there are 43 total, so

6 less then motion itself which I think was 4, so

7 it appears that there would be 39 pages.

8 JUDGE SULLIVAN: Okay.

9 And I'm going to turn to you, Mr.

10 Curtright. Did your copy that received, either

11 by fax or by mail or if you accept email service

12 from the FAA, did you receive any attachments to

13 the FAA's motion?

14 DR. CURTRIGHT: No, Your Honor,

15 absolutely nothing on November the 21st, 2016.

16 JUDGE SULLIVAN: Since November the

17 21st of 2016, did you receive anything after

18 that?

19 DR. CURTRIGHT: No, no ma'am.

20 JUDGE SULLIVAN: Okay. So you're

21 missing the attachments as well?

22 DR. CURTRIGHT: Yes ma'am.
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1 JUDGE SULLIVAN: Okay. And how do you

2 usually get served by the FAA? Is it by U.S.

3 Mail?

4 DR. CURTRIGHT: Yes, certified mail.

5 JUDGE SULLIVAN: Okay.

6 All right. Well, Mr. Shayne, it

7 appears that something happened. We don't know

8 what, but both Mr. Curtright and I need to get a

9 copy of the attachments. And yes, I think it

10 would be good for all of us to have the same

11 materials. So let's talk a little bit about

12 giving you the time to get those --

13 DR. CURTRIGHT: Your Honor.

14 JUDGE SULLIVAN: -- in the mail.

15 Mr. Curtright, yes.

16 DR. CURTRIGHT: Yes, I object.

17 JUDGE SULLIVAN: I'm sorry. What is

18 it that you're objecting to?

19 DR. CURTRIGHT: I -- I object that

20 basically we have not received these documents. 

21 It's been a pattern, Your Honor, all the way

22 along.
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1 MR. SHAYNE: Well --

2 DR. CURTRIGHT: I object. We

3 should've gotten --

4 MR. SHAYNE: Your Honor, actually, the

5 exact same documents were provided on our initial

6 --

7 JUDGE SULLIVAN: I'm interrupting both

8 of you. When you hear me speak and I say I'm

9 interrupting you, stop talking. So I'm

10 interrupting you, Mr. Shayne, and I'm

11 interrupting you, Mr. Curtright. I can only

12 listen to one person at a time, and there will be

13 times when I interrupt you and I want you to stop

14 and listen to what I have to say.

15 So Mr. Curtright, you were saying that

16 you object to any allowance given to the FAA to

17 make sure that the materials are submitted. And

18 what is the basis of your objection?

19 DR. CURTRIGHT: Well, Your Honor, this

20 -- this has been going on for a long time.

21 JUDGE SULLIVAN: You say this has been

22 going on --
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1 DR. CURTRIGHT: I object. There seems

2 to be --

3 JUDGE SULLIVAN: -- for a long time. 

4 I'm stopping you, sir. When you say this has

5 been going on for a long time, what exactly are

6 you talking about?

7 DR. CURTRIGHT: I'm talking about

8 documents that we were supposed to have get --

9 get -- supposed to acknowledge. Like, for

10 instance, sending documents to Mr. Shayne, they

11 always ignore the fact that we sent it to him. 

12 And then now we have another situation here where

13 we haven't received documents, and this case

14 should be dismissed, Your Honor.

15 My motion to dismiss was filed on

16 9/19/2016 waiting for Your Honor's response, and

17 my motion for summary judgment was filed on

18 10/26/2016 requesting for ruling under 78(b), the

19 Federal Rules of Civil Procedure. I haven't

20 received any -- any -- you know, I haven't

21 received the responses back in reference to our

22 complaints. And now we have another situation
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1 with Mr. Shayne has not, again, provided us with

2 documents. Now, he wants forgiveness of that and

3 he wants to proceed.

4 And anyway, this seems like this goes

5 on and on and on. It's like a nightmare with Mr.

6 Shayne.

7 MR. SHAYNE: Your Honor, can I respond

8 to that?

9 JUDGE SULLIVAN: You may.

10 MR. SHAYNE: Those are outrageous and

11 false accusations. Mr. Curtright has gotten

12 everything. I don't -- frankly, Mr. Curtright

13 told us he didn't get a whole bunch of documents,

14 and Mr. Kamberg had to sit and spend over an hour

15 with one of his employees to prove, in fact, he

16 did. His statement simply lacks the credibility

17 on that regard.

18 I have -- it is usually our practice

19 to email Mr. Curtright on most documents. But

20 let me just say, regardless of whether he got the

21 attachments to the motion for partial summary --

22 partial decision, they were the identical motion
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1 documents provided to him in the initial

2 disclosures anyway. It's just the same set of

3 documents, so he has them and he has always had

4 them.

5 JUDGE SULLIVAN: Okay. Thank you.

6 both for your argument.

7 This is what I'm going to do. Number

8 one, I need to see the full motion that's been

9 filed by the FAA, and I think Mr. Curtright has

10 the right to see it as well. So I will be happy

11 to grant the FAA's motion over the Respondent's

12 objection to re-serve the documents upon both

13 this Court and Mr. Curtright. And the question

14 is, is how much time do you need to do that?

15 Mr. Shayne.

16 MR. SHAYNE: An hour.

17 JUDGE SULLIVAN: Well --

18 MR. SHAYNE: I mean, it will go out in

19 today's mail. I can still email it. In fact --

20 well, I will email it to both Mr. Smith and Mr.

21 Curtright as well. I understand Your Honor does

22 not accept that as valid service. I get that,
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1 but --

2 JUDGE SULLIVAN: Then I'm directing

3 you not to email it to this office. Mr. Smith is

4 not an email recipient for filed documents.

5 MR. SHAYNE: Very well. We will email

6 --

7 JUDGE SULLIVAN: You are welcome, sir,

8 to fax --

9 (Simultaneous speaking.)

10 JUDGE SULLIVAN: Mr. Shayne, if I'm

11 interrupting you, please stop talking. You are

12 welcome to fax it to this office, and we have a

13 fax machine that does accept faxes that are even

14 up to 39 pages long.

15 MR. SHAYNE: We will fax it as well.

16 JUDGE SULLIVAN: You are welcome to

17 express deliver it. You are welcome to mail it

18 by the U.S. Mail. But I do not have an email

19 server available to you or any other party to

20 serve documents by email. I recognize how

21 wonderful that would be, but our office doesn't

22 have that capacity right now.
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1 MR. SHAYNE: Your Honor, I completely

2 understand. It will be both faxed and mailed

3 today.

4 JUDGE SULLIVAN: Okay. Thank you.

5 Then let's talk about some of these

6 other things because I think we can get a variety

7 of things resolved today that clears up the

8 calendar for our next conference where we talk

9 about the meat of what's going on in the dispute

10 between the parties.

11 And so let's talk a little bit about

12 the summary judgment motion that has been made by

13 the Respondent because based on what I had read

14 in everybody's materials that I have so far, it

15 appears to me that the issue is very narrow in

16 scope, in reality. And when we can talk a little

17 bit about some of the motions for dismissal that

18 the Respondent has made and has been waiting on

19 that were made on September 19, 2016 and we can

20 also talk about the most recent motion to compel,

21 if we have the time. We have up until 3 o'clock

22 today, so I'm keeping an eye on the calendar and
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1 on the clock for that purpose.

2 MR. SHAYNE: Your Honor, can I ask

3 that we dispose of the motion to compel right now

4 because mainly frivolous.

5 JUDGE SULLIVAN: Well, why don't I ask

6 you to hold that in your hand for a moment and

7 I'm going to finish out looking at my calendar

8 and asking the parties to look at their calendars

9 for resetting this conference. I think that's

10 one of our first goals.

11 So in looking at the calendar, our

12 next week is -- okay. I'm going to be looking at

13 my calendar and my vacation schedule which is

14 going to interfere with some of the scheduling

15 for the rest of the month. I could reset this

16 case as early as January 4th, 2018 or I could set

17 it the week of January 9th.

18 Mr. Curtright, starting with you, do

19 you have a preference?

20 DR. CURTRIGHT: Well, January the 4th

21 is right in the middle of the holidays, isn't it? 

22 It'd be better if it was -- if you have to -- if
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1 we have to stretch it out, Your Honor, it'd be

2 more like --

3 JUDGE SULLIVAN: Well, would January

4 9th work?

5 DR. CURTRIGHT: Maybe around the 10th

6 -- the 10th on -- I got to check a calendar, Your

7 Honor, on this.

8 JUDGE SULLIVAN: Okay. Please do.

9 DR. CURTRIGHT: I will. Just give me

10 a moment.

11 JUDGE SULLIVAN: Okay.

12 (Pause.)

13 JUDGE SULLIVAN: Mr. Curtright, have

14 you had a chance to look at your calendar? Mr.

15 Curtright? I'm hearing no response.

16 MS. BIRD: Your Honor, we're looking

17 at it right now.

18 JUDGE SULLIVAN: And who's speaking,

19 please?

20 MS. BIRD: This is Susan Bird.

21 JUDGE SULLIVAN: Ms. Bird, you don't

22 have speaking authority. Is Mr. Curtright there?
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1 DR. CURTRIGHT: Yes, I'm here, ma'am. 

2 I just went out of the room for a moment.

3 JUDGE SULLIVAN: Well, Mr. Curtright,

4 you cannot leave the room while the Court is in

5 progress. So looking at your calendar is one

6 thing, walking out of the Court is another. So

7 don't leave the room again without asking for

8 permission to do so.

9 DR. CURTRIGHT: Right. I actually

10 just stepped in the hallway. Okay, ma'am. The -

11 -

12 JUDGE SULLIVAN: Do you --

13 DR. CURTRIGHT: I understand.

14 JUDGE SULLIVAN: Okay. Do you have --

15 DR. CURTRIGHT: Tuesday the 10th. I

16 have the calendar. Tuesday the 10th would be --

17 on January the 10th, probably 9th or the 10th,

18 Your Honor, would be good.

19 JUDGE SULLIVAN: Do you have time on

20 the 11th or 12th or 13th as well because I need -

21 -

22 DR. CURTRIGHT: Yes. I'll be out of
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1 town on the 11th, 12th, and 13th.

2 JUDGE SULLIVAN: Okay.

3 Mr. Shayne, turning to you, would

4 January the 10th work?

5 MR. SHAYNE: Yes, Your Honor.

6 JUDGE SULLIVAN: Okay. Let's plan on

7 January the 10th, which is a Tuesday, 2017, same

8 time, 1:30 p.m. Eastern time, for a second motion

9 conference.

10 DR. CURTRIGHT: Your Honor.

11 JUDGE SULLIVAN: Yes.

12 DR. CURTRIGHT: I see that I'm

13 actually traveling to Florida here on the 9th,

14 10th, and 11th as well. I won't be back so I

15 won't be -- I'll be gone for all of that week.

16 JUDGE SULLIVAN: Well, then tell us

17 what your availability is --

18 DR. CURTRIGHT: The -- the 16th to the

19 20th --

20 JUDGE SULLIVAN: -- for the week of

21 January 23rd.

22 DR. CURTRIGHT: Anywhere from the 16th
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1 to the 20th would be workable.

2 JUDGE SULLIVAN: Tell us again -- tell

3 us, if you would, what your availability is for

4 the week of January 23rd, 2017.

5 DR. CURTRIGHT: That would be

6 somewhere workable in there, I believe.

7 JUDGE SULLIVAN: Is there any day that

8 week, January 23rd, 2017, where you have blackout

9 time?

10 DR. CURTRIGHT: I -- I -- I would be

11 -- any time after the -- it would be -- any time

12 after the 23rd would be fine in January.

13 JUDGE SULLIVAN: Okay.

14 Mr. Shayne, looking at your calendar,

15 would you be available on Wednesday, January 25,

16 2017?

17 MR. SHAYNE: Yes, Your Honor.

18 JUDGE SULLIVAN: Okay. Then let's

19 plan on Wednesday, January 25, 2017, 1:30 p.m.

20 Eastern time for our second motion conference.

21 Now, let's look very briefly at just

22 the Respondent's motion for summary judgment. 
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1 And it appears from this Court's review of all of

2 the material, that the issue before the Court, at

3 least in this particular motion, is really

4 narrow. And I'm going to talk a little bit about

5 that and see if everybody agrees. And if they

6 don't agree, then that will help you focus your

7 argument and your discussion about your motion

8 next month.

9 So in looking at the allegation that

10 is before the Court, there's one allegation and

11 it's whether or not the Respondent violated

12 Section 91.417(c). And there appear to be no

13 disputes about the facts underlying the

14 allegation.

15 For example, it appears that nobody

16 disagrees that the Respondent was the owner of a

17 Piper model civil aircraft with a registration

18 number identified as N as in Nancy, 949, J as in

19 Jan, P as in Paul. It appears that nobody

20 disagrees and, in fact, the Respondent's exhibits

21 prove that on July 1, 2014 an FAA inspector by

22 the name of Martin Conroy asked the Respondent to
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1 provide aircraft and engine maintenance logbooks

2 of the aircraft for his review and that there was

3 a request for that documentation to be provided

4 by July 17, 2014.

5 It also appears that everybody agrees

6 that the Respondent advised Inspector Conroy that

7 the aircraft and engine logbooks were at the

8 Respondent's residence in Canada and that on

9 August 13, 2015, two FAA inspectors inspected the

10 aircraft maintenance logs at the Respondent's

11 place of business in Salem, Oregon.

12 And in all of those undisputed facts,

13 it appears that the only issue, at least to this

14 Court's initial review of the material, is

15 whether or not -- under the regulation that the

16 Respondent has been charged with, whether or not

17 the Respondent complied with the regulation in

18 its language and that means whether an owner who

19 provides maintenance records has a certain time

20 period to make them available to be in compliance

21 with this regulation.

22 And from what I can see, the
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1 Respondent is saying that he made the records

2 available, and so he cannot be held liable for

3 this regulation. And I hear from the FAA that,

4 yes, Mr. Curtright made the records available,

5 but he made them available far too late and,

6 therefore, he has violated the regulation.

7 If that's the case, then what I really

8 need from the parties is some legal material and

9 legal reference material supporting your

10 particular positions. For example, does Mr.

11 Curtright have some legal information in the form

12 of a regulation, case law, federal registered

13 discussions, something that says that his actions

14 between July 1, 2015 and August 13, 2015 were

15 reasonable in terms of the statute's language? 

16 It also means that the FAA presumptively might

17 have regulations, case law, federal registered

18 information that supports its position when it

19 says that it wasn't reasonable -- a reasonable

20 response for the request for information.

21 So Mr. Curtright, I want to turn to

22 you first because we're talking about your
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1 motion. You're taking the position, as I

2 understand it, that because you made the records

3 available and they were seen and reviewed on

4 August 13, 2015, the FAA does not have a case. 

5 Is that, in fact, part of your motion?

6 DR. CURTRIGHT: Yes, Your Honor. 

7 Also, in the beginning of this thing, we were

8 asked for the -- we claimed that we had -- don't

9 know where the documents were -- are at and they

10 were lost right off the bat. But they -- they

11 seemed to ignore that, that the -- those

12 documents were lost. We were trying to recover

13 them. They probably -- well, we thought they

14 would be in Canada.

15 And so anyway -- so we were basically

16 cited, I think, to -- in reference to the weight

17 and balances. So we didn't know right away what

18 was going on. So when they asked for weight and

19 balance, that was the complaint, apparently, we

20 got to begin with. And then, in fact, later on 

21 their complaint that they never signed and their

22 motion was that basically that the complaint was
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1 unsigned. So it's not even a valid complaint if

2 it wasn't then signed -- wasn't signed.

3 (Simultaneous speaking.)

4 JUDGE SULLIVAN: -- just a minute. 

5 But my question to you is it sounds like that

6 this is part of your motion for summary judgment. 

7 And if it is, what law or authority do you have

8 to back up this factual claim?

9 DR. CURTRIGHT: Well, could you hold

10 for a moment? I'm going to --

11 JUDGE SULLIVAN: Sure.

12 DR. CURTRIGHT: -- try to find a

13 document here, Your Honor. Give me a second, if

14 I might.

15 JUDGE SULLIVAN: Sure.

16 DR. CURTRIGHT: Okay. That would be

17 FAA Order No. 98-18 from my research here in

18 reference to --

19 JUDGE SULLIVAN: And what does that

20 say, in your opinion?

21 DR. CURTRIGHT: Well, for one, the --

22 the fine in reference to General Aviation,
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1 Incorporated was an example of a company up in

2 Portland, Oregon which was fined, like, $200, I

3 believe, and --

4 (Simultaneous speaking.)

5 JUDGE SULLIVAN: We're not talking

6 about a fine. We're talking about what legal

7 authority, what case law, what regulation do you

8 have that says that you acted reasonably and on

9 time in compliance with the regulatory language

10 of 14 CFR Section 91.417?

11 DR. CURTRIGHT: Of all the cases, Your

12 Honor, that we could find in doing the research,

13 this was it. General Aviation, Incorporated, FAA

14 Order No. 98-18. Otherwise, there's no other

15 case law.

16 JUDGE SULLIVAN: Okay. So there's no

17 legal authority other than this FAA order that

18 you're referencing that supports --

19 DR. CURTRIGHT: Yes.

20 JUDGE SULLIVAN: -- your position?

21 DR. CURTRIGHT: This is the closest we

22 could ever find. There was nothing -- no other
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1 case law. In fact, it was to my amazement that

2 in doing the research that I done -- that I done

3 referenced to case after case after case after

4 case where no one ever tries to fight the Federal

5 Aviation Administration. It seems that they just

6 roll over and play. And in fact, it comes under

7 some cases are hundreds of thousands of dollars

8 in fines. They just pay it.

9 And to me, that's when I talked to you

10 once before, the lopsided part of the justice

11 system is that the scales of justice have tipped

12 to the Government rather than the justice of

13 being equal to the person or the pilot or the

14 company or whatever we're dealing with. But

15 there was -- this is the only case that we could

16 find in reference to doing the research.

17 JUDGE SULLIVAN: Well, I can assure

18 you that there are many cases that are being

19 litigated before this Court on a daily basis. 

20 Perhaps not on this particular regulation but

21 quite a few involving the FAA, so you're not

22 alone. Can you tell me, specifically, the -- you
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1 had the FAA Order No. 98-18. Can you give me the

2 date that was issued and the name of the case?

3 DR. CURTRIGHT: Yes. That's in matter

4 of the General Aviation, Incorporated served on

5 October the 9th, 1998 and the docket number,

6 would that do it for you?

7 JUDGE SULLIVAN: Yes, that would be

8 helpful, so it --

9 DR. CURTRIGHT: It was, like --

10 JUDGE SULLIVAN: -- was served when?

11 DR. CURTRIGHT: Docket No. CP96,

12 November, Mike, 0112. I'll repeat that to you

13 again. That's Charlie, Papa, 96, November, Mike,

14 0112.

15 MR. SHAYNE: Your Honor, I'm sorry. 

16 I didn't catch the name of the case, and I didn't

17 --

18 JUDGE SULLIVAN: Yes.

19 MR. SHAYNE: -- notice that that was

20 -- what was the name of the case?

21 JUDGE SULLIVAN: I'm having a little

22 bit of trouble too. Can you tell me -- it's in
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1 re: the matter of what, Mr. Curtright?

2 DR. CURTRIGHT: What's your question

3 again, ma'am?

4 JUDGE SULLIVAN: What's the name of

5 the case again, please?

6 DR. CURTRIGHT: In the matter of

7 General Aviation, Incorporated, and the date is

8 on the 8th day of October 1998.

9 JUDGE SULLIVAN: Okay. Thank you. 

10 Okay. Thank you.

11 Mr. Shayne, let me go to you. Do you

12 have a legal authority in support of what appears

13 to be your position?

14 MR. SHAYNE: Yes, Your Honor. And in

15 fact, it is cited on Page -- well, I just gave --

16 I don't have the page right in front of me, but

17 it's cited, I think, on Page 2 or 3 of my motion

18 for summary judgment, and it's the case of in re:

19 Shepard M. Weinstein.

20 JUDGE SULLIVAN: And --

21 MR. SHAYNE: And in that particular --

22 now, it is an NTSB case and I understand that's
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1 persuasive authority only. I did not find any

2 administrator cases at all on this particular

3 regulation that were directly pertinent to this. 

4 But what I thought was pretty interesting about

5 the Weinstein case is that it's almost the exact

6 issue. The Respondent came to court and said,

7 here, I've got all of my records, and the NTSB

8 was like, well, yes, it's a little late now, Mr.

9 Weinstein. You were supposed to produce the

10 records in a timely fashion.

11 JUDGE SULLIVAN: But what defines

12 timely?

13 MR. SHAYNE: I don't think I can --

14 there's no rule or regulation that says --

15 specifically signifies X number of days, weeks,

16 or months. I think that judges treat this issue

17 on a case by case basis.

18 I do know that on a different issue --

19 and I didn't cite these cases because this case

20 was far more pertinent. But I had a recent case

21 where I litigated where a pilot was required to

22 show his certificate to the -- to inspectors who
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1 had ramp checked his aircraft, and he refused to

2 so for six weeks. And in that case, I did find a

3 couple of cases, and I'd be happy to submit a

4 supplemental pleading with those cases, although

5 it's a different issue, where the NTSB said, if

6 an FAA inspector demands to see your airline

7 certificate, the duty to produce is prompt,

8 meaning on the spot.

9 Now, we're not saying -- this is

10 91.417. It's not -- it's a different reg. It's

11 a different record. We don't say, on the spot,

12 but -- although I can't articulate a particular

13 time frame, I would certainly articulate in the

14 facts of these -- of this case, waiting until not

15 only after the Notice of Proposed Civil Penalty

16 has been issued, but after the Final Notice of

17 Proposed Civil Penalty issued and after the case

18 is in litigation do we have the Respondent

19 finally complying. And I think that's very

20 similar to the facts in Weinstein and I'd invite

21 Your Honor to read Weinstein.

22 And then the second legal authority I
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1 would have is law of the case is that Your Honor

2 addressed this issue in denying Mr. Curtright's

3 earlier motion to dismiss. And Your Honor said,

4 the fact that Respondent allowed inspection of

5 its records on August 13, 2015 -- i.e.

6 approximately three months after being charged of

7 the violation -- does not in any way raise a

8 factual defense to the allegations in the FAA

9 complaint. And then Your Honor goes on to say,

10 however, it could be grounds for mitigation.

11 Yes, I certainly will readily

12 acknowledge that Mr. Curtright is entitled to

13 some mitigation for finally coming into delayed

14 compliance. But that goes to mitigation of

15 sanction which is why I only move for a partial

16 summary judgment, not for a full summary

17 judgment.

18 JUDGE SULLIVAN: And I will simply

19 tell the -- thank you, Mr. Shayne. I'll simply

20 tell the parties that the Court was not making a

21 ruling as a matter of law in its preliminary

22 issuance of an order denying dismissal. You both
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1 have used that order quite liberally, I think,

2 and it was not a finding as a matter of law as

3 the Court must make in a summary judgment motion

4 proceeding.

5 So the Court is very interested in

6 hearing from the parties about their legal

7 authority supporting their factual position. Mr.

8 Curtright is saying that there is no time frame

9 for producing the records. They have been

10 produced and, therefore, no violation can exist

11 as a matter of law. And the FAA, in response,

12 saying there's no time frame in the regulation,

13 but certainly if one takes an interpretive view

14 of other decisions or of the facts from a

15 reasonable person's standpoint, the Respondent

16 was dilatory.

17 So Mr. Shayne, I will certainly accept

18 your offer to supplement your pleading and give

19 some additional argument with supported case law. 

20 And I would also offer the same thing to Mr.

21 Curtright, if he chooses to take advantage of

22 that. And if we need to make another change to
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1 the motion conference that we just set on January

2 25, 2017, I'm happy to do that because I think we

3 can take a great deal of work off the table for

4 everyone if we address with great focus what is

5 the real dispute between the parties on this

6 matter.

7 So Mr. Curtright, let me go back to

8 you. You were telling me that you're going to be

9 in and out of town. Do you want to take

10 advantage of taking a little bit more time to do

11 research on the legal issue here and supplement

12 your pleading? Or do you want to simply rest on

13 this one case that you provided to both Mr.

14 Shayne and myself orally this afternoon?

15 DR. CURTRIGHT: Your Honor, I'm not

16 sure what to do with this. I know I objected and

17 mentally here against Mr. Shayne's -- you know,

18 the case that he's referring to. I don't think

19 it has any relationship to his basis.

20 Anyway, I'd sure like to bring this --

21 I'm not sure what to -- you know, I filed a

22 number of motions. I hate to slow down the
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1 motions that we have that we've asked for.

2 JUDGE SULLIVAN: Well, and I think I

3 can address most of them before we leave today.

4 DR. CURTRIGHT: Yes, because it's just

5 -- I mean, we're just piling them up, motion

6 after motion after motion, and much of it's from

7 mistakes and things that Mr. Shayne has made. 

8 And anyway, I think they -- I think they might

9 solve the -- the case.

10 But if you're going to -- here, if I'm

11 going to slow the whole process down by asking if

12 you -- because you want more -- more case work,

13 then there's a lot more research involved, and I

14 provided the -- you know, the only case I have in

15 reference to this. And Mr. Shayne hasn't

16 provided anything, so what I guess I'm saying, I

17 wish -- wish we could move right on --

18 JUDGE SULLIVAN: Okay. That's fine.

19 DR. CURTRIGHT: -- if that's your

20 decision.

21 JUDGE SULLIVAN: What I will do is I

22 will simply set a date for both of you and you
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1 can both file if you want, or if it's only Mr.

2 Shayne, that's fine too.

3 So Mr. Shayne, would you be able to

4 get something -- a supplemental pleading to the

5 Court by January 13, 2017?

6 MR. SHAYNE: Yes, Your Honor.

7 JUDGE SULLIVAN: Okay. I will note

8 that any supplemental pleadings regarding the

9 legal issue that has been identified by the Court

10 and briefly discussed by both parties should be

11 filed on or before January 13, 2017. So we'll

12 take care of that right now.

13 Now, in terms of the other motion,

14 let's start a little bit with the comments that

15 Mr. Curtright had about the unsigned complaint,

16 and that has arisen since then in motions to

17 dismiss that he has filed from -- I'm sorry,

18 September 19, 2016, and it also appears in some

19 of the other materials that were more recently

20 filed.

21 So I am going to reference the parties

22 back to some other materials that the Court has
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1 issued so that we can put some things to bed. 

2 Let's see. And I have to take a minute to take a

3 look for it. Okay.

4 I'm going to reference the May 20,

5 2016 order denying the Respondent's motion to

6 dismiss and granting, slash, denying other

7 relief. And this is the order that both parties

8 have utilized to support certain issues that

9 they've raised before the Court.

10 First and foremost, this order was

11 fairly narrow in scope. And what it says is that

12 the Respondent's January 19, 2016 motion to

13 dismiss is denied. And the other motions that

14 had been addressed briefly, the Respondent's

15 August 5, 2015 untitled motion to dismiss and the

16 January 6, 2016 renewed untitled motion to

17 dismiss, were struck for failure of the

18 Respondent to follow fair notice motion practice.

19 So that took care of a variety of

20 different motions that had been put before the

21 Court by the Respondent. But perhaps even more

22 importantly, I'm going to turn to the earlier
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1 order that was dated May 18, 2016. And I'm going

2 to give the parties a moment to look for that so

3 they have it before them as we talk.

4 Mr. Curtright, do you have that with

5 you right now?

6 DR. CURTRIGHT: I'm looking for it,

7 Your Honor, as we speak.

8 JUDGE SULLIVAN: Take a minute and

9 look for it because I think it'll make it easier

10 as we discuss some of your complaints.

11 DR. CURTRIGHT: Okay.

12 (Pause.)

13 JUDGE SULLIVAN: Do you see that, Mr.

14 Curtright, by any chance?

15 DR. CURTRIGHT: Yes. I have it and

16 I'm going to try to go over it again.

17 JUDGE SULLIVAN: Well, so long as you

18 have it in front of you, I'm going to refer you

19 to certain pages, and I hope this will be

20 helpful. So do you have it with you now?

21 DR. CURTRIGHT: Yes ma'am, I do.

22 JUDGE SULLIVAN: Okay. I want you to
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1 go to Page 6 of the 11-page document that was

2 issued by this Court on May 18, 2016.

3 DR. CURTRIGHT: All right. I'm on

4 Page 6.

5 JUDGE SULLIVAN: At the top of this

6 document on Page 6 is a paragraph that's

7 entitled, quote, "The validity of unsigned

8 complaint," end quote. Do you see that?

9 DR. CURTRIGHT: I have here the

10 Respondent's reply on top of Page 6, so validity

11 --

12 JUDGE SULLIVAN: I'm sorry. Then I

13 apologize. It should be Page 7. Excuse me.

14 DR. CURTRIGHT: I thought I was losing

15 my mind for a second.

16 (Laughter.)

17 JUDGE SULLIVAN: No, you're not.

18 DR. CURTRIGHT: All right. Okay. 

19 Give me a second. I'm going to read it here. 

20 And let's see here.

21 JUDGE SULLIVAN: Well, I don't need to

22 have you read it right now. I'm just tagging
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1 this for your edification.

2 DR. CURTRIGHT: I see it.

3 JUDGE SULLIVAN: Okay. This

4 particular order on Page 7 addressed your

5 complaint about the unsigned complaint. And this

6 particular order found, unequivocally, that your

7 assertion that this was grounds for dismissal was

8 not meritorious because of case law that this

9 Court cites on Page 7 which you're welcome to

10 read.

11 So all of the renewed attempts that

12 you have made since May 18, 2016 to have the

13 FAA's complaint against you dismissed on the

14 grounds that it had not signed the original

15 complaint are simply a renewed request for this

16 Court to revisit a decision it made on May 18,

17 2016. And you have provided no basis on which to

18 show that the Court was in error with its May 18,

19 2016 decision. So it's unclear to this Court why

20 you have continued to raise this issue when the

21 Court spent time trying to explain clearly the

22 reason it was rejecting that particular motion.
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1 So I would encourage you to read this

2 material on Page 7 of the May 18, 2016 order. 

3 You may not like the decision and there are times

4 when people don't. You may not agree with it,

5 but the Court did look at that particular issue

6 when you raised it, and the Court has rendered a

7 ruling on it based on case law and authority that

8 seems still to be relevant to this day.

9 So with that, the September 19, 2016

10 motion that you made renewing a motion to dismiss

11 on the grounds that the complaint was not signed,

12 that it has no validity, that, again, has to be

13 denied because the Court has made a ruling on

14 that issue. And if you think the ruling is wrong

15 and you want the Court to reconsider, you must

16 show why these cases that are listed in this

17 particular order are no longer valid.

18 And I suspect that you won't find such

19 legal authority because the Court is very careful

20 when it uses case law authority to make sure that

21 it's still current and effective. But simply to

22 ignore the Court and ignore the Court's ruling is
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1 not effective for you. And it's a waste of your

2 time and it's a waste of everybody's time simply

3 to pretend that the Court didn't issue a ruling. 

4 The Court did and the Court stands by it.

5 Do you have any questions about that

6 particular issue?

7 DR. CURTRIGHT: All right. I

8 understand.

9 JUDGE SULLIVAN: Okay. So no

10 questions.

11 Now, let's talk about one other thing. 

12 We're going to -- I'm going to reference you to

13 Page 9 of the same order.

14 DR. CURTRIGHT: Page 9.

15 JUDGE SULLIVAN: And this is entitled,

16 quote, "The FAA's public rulemaking and rules of

17 practice," end quote. And you reraised some of

18 these concerns today when you talked about how

19 matters are weighted towards the Government. The

20 FAA is railroading people. Nobody is objecting

21 to what they do, and it's unfair, patently

22 unfair.
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1 I would say to you that I think that

2 litigation for anybody is hard. This Court has

3 been in the litigation field a very long time. 

4 Let me think for a minute what year it is. A

5 calculator. I want to remember how long it's

6 been, a minute. This Court has been in

7 litigation for 33 years now, and it is hard.

8 It's hard for lawyers. It's hard for

9 lay representatives. It's hard because there are

10 rules to follow, there are things to know, and

11 sometimes the issues are just complex, and we all

12 have to work together to kind of figure them out.

13 In any litigation, it always seems to

14 the responding party who is sent to court against

15 their will that it's unfair because they don't

16 want to be there in the first place. And I can

17 tell you that in the 33 years that I have been in

18 litigation, I have been a witness in cases, I

19 have been a plaintiff myself, and I've also been

20 served as a responding party with litigation

21 documents. I've had the whole experience and

22 it's never fun.
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1 But that doesn't mean that it's

2 automatically unfair. And this Court and the

3 process by which this Court was created via

4 Congress years ago aspires as best it can to

5 level the playing field and make sure that

6 everybody has as fair and just an opportunity to

7 present their arguments and their perceptions and

8 positions to the Court before the Court makes a

9 ruling. And then, of course, the process allows

10 you to appeal if you do not like what the Court

11 itself has done.

12 So I don't want you to labor under the

13 belief that somehow you have been denied, before

14 a decision has even been reached, the right to

15 fair process. This Court's goal is to ensure

16 that everybody has a fair shot at the forum. I

17 shouldn't use the word "shot". 

18 DR. CURTRIGHT: Yes. 

19 JUDGE SULLIVAN: But a fair shake, a

20 fair shake. Now, that doesn't mean that all

21 arguments are equal. If you don't have legal

22 authority, if you don't have factual basis for
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1 things, sometimes it's not going to work to your

2 favor. But that's part of litigation, and that's

3 part of learning what other peoples' positions or

4 perceptions might be.

5 And I think it is remarkable that our

6 process in this country is set up so that people

7 can learn and grow and change in their perception

8 while they're in litigation. So our process of

9 litigation allows us to hear from the other side,

10 to hear from an independent, impartial decision

11 maker, and to even hear ourselves when we talk

12 about things that are important to us, what is

13 being said and where it might lead us. So we not

14 only have the chance to talk about what we think

15 has happened, but we also have a chance to learn

16 what someone else perceives has happened and

17 perhaps come closer together to an understanding

18 of the totality of what happened.

19 So even though you are not a lawyer

20 and even though you are not experienced in the

21 world of litigation, you are being given an

22 opportunity as best that this Court can offer to
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1 present your arguments and to get rulings on

2 them. And again, as I say, sometimes you'll like

3 what I do and sometimes you won't like it, the

4 same is true for Mr. Shayne, but the Court is

5 available and is open to what both of you have to

6 say.

7 So having said that, you have in your

8 September 19, 2016 motion for dismissal, on Page

9 2, a motion to dismiss on the grounds that the

10 complaint did not have the actual date of the

11 violation identified. First and foremost, that's

12 really not a basis for a motion to dismiss. It's

13 a basis for a more definite statement in the

14 complaint. And this Court recognized the

15 validity of your concern when it asked the FAA to

16 provide a specific date of when the violation, in

17 their opinion, allegedly started after the July

18 1, 2015 letter was issued.

19 Did I say that -- is it 2014 letter? 

20 What year was that letter issued originally, Mr.

21 Shayne?

22 MR. SHAYNE: The letter? Is Your
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1 Honor asking about the letter from the Portland

2 office or the Notice of Proposed Civil Penalty?

3 JUDGE SULLIVAN: Let me just -- it was

4 the letter, excuse me. It was the July 1, 2014

5 letter.

6 MR. SHAYNE: Right. That is from the

7 Portland office.

8 JUDGE SULLIVAN: Yes, thank you.

9 So essentially, on August 23rd, 2016,

10 the FAA filed a statement of commencement of the

11 violation at issue, and it settled on the July

12 18, 2014 date. So the Respondent's motion to

13 dismiss on the grounds that the actual date of

14 violation was not identified in the complaint is

15 it must be denied.

16 Number one, it's not a basis for

17 dismissal. It's a basis for a more definite

18 statement, and the Court heard that underlying

19 request and addressed it, and the Respondent now

20 has a date certain from which to look at the

21 alleged violation.

22 On Page 3 of the September 19, 2016
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1 motion for dismissal, the Respondent moves to

2 dismiss on the grounds that the full content of

3 the FAA's Enforcement Investigative Report was

4 not fully provided. And again, the Respondent is

5 making a request for relief that is not

6 proportional to the error that the Respondent

7 claims has occurred. And this is, in many

8 regards, a -- it is a lack of understanding of

9 litigation practice.

10 There are certain reasons and bases

11 for moving to dismiss a complaint in its

12 entirety. And when you are moving to dismiss on

13 the grounds of bad behavior, which is what this

14 underlying motion is, those kinds of motions to

15 dismiss are extraordinarily rare to begin with,

16 and they are rare to grant because the remedy

17 that you're asking for is extreme.

18 And there is case law that is rampant

19 throughout the United States in both the federal

20 jurisdiction and in the state jurisdiction that

21 agree that when you're asking for dismissal on

22 the grounds of bad behavior, that's something
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1 pretty special and only certain cases would rise

2 to that level. You're supposed to be looking at

3 all the other different options for remedies if

4 there's something amiss before you go to

5 dismissal for those things.

6 So if, as you say, you have a right to

7 discovery that was not provided yet voluntarily

8 to you, that being information in the FAA's EIR,

9 your proper remedy is to move to compel, which

10 you've just done. And in that motion to compel,

11 you have to identify what it is that's missing,

12 what efforts you made to try and get it, and why

13 you have a right to it, and we can talk about

14 that a little bit more in just a moment. But

15 because the motion to dismiss is not proportional

16 to the matter that you've listed as a basis for

17 dismissal, and it's really not the right remedy

18 for what you say is a problem, it must be denied.

19 That puts me into Page 3 again of the

20 Respondent's September 19, 2016 motion for

21 dismissal. And again, you make a motion to

22 dismiss this time on the grounds that the
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1 Proposed Civil Penalty was not fully explained.

2 This, again, is a misunderstanding of

3 when you use the tool of a dismissal motion in

4 response to a problem in the case, you have a

5 problem because you want an explanation about the

6 Proposed Civil Penalty and you haven't gotten it,

7 at least as of September 19, 2016. Well,

8 dismissal is not the remedy. A request for

9 discovery is the remedy. And if you make a

10 request for discovery and it's ignored or not

11 responded to appropriately, then you move to

12 compel. So the motion to dismiss because you

13 haven't gotten discovery on this particular

14 matter must be denied. It's not the correct

15 remedy for your problem.

16 You have in this September 19, 2016

17 motion for dismissal on Page 3, moving into Page

18 4. Again, a motion to dismiss on the grounds

19 that the --

20 MR. SHAYNE: Excuse me, Your Honor. 

21 I apologize terribly for interrupting you, but I

22 need, if I could, take a two or three minute
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1 break.

2 JUDGE SULLIVAN: Oh, of course.

3 What I will do, folks, is I will then

4 say we'll go off the record for about five

5 minutes, and I will reconnect with you at 2:45.

6 Is that acceptable, Mr. Shayne?

7 MR. SHAYNE: Thank you so much. And

8 again, I apologize both to yourself and Mr.

9 Curtright, for the interruption.

10 JUDGE SULLIVAN: Okay. I will simply

11 put -- I'll put everybody on hold. I won't be

12 listening to you, so you can talk amongst

13 yourself at this point.

14 MR. SHAYNE: Thank you, Your Honor.

15 JUDGE SULLIVAN: Thank you.

16 (Whereupon, the above-entitled matter

17 went off the record at 2:43 p.m. and resumed at

18 2:49 p.m.)

19 JUDGE SULLIVAN: We're back on the

20 record in the matter of William A. Curtright. 

21 This is Docket No. FAA-2015-1319. We're

22 reconvening after, approximately, a five-minute
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1 recess. It's now 2:47 p.m. by the Court's clock.

2 All parties previously identified have

3 returned to the telephone conference, and we're

4 going to pick up where we left off. I'll note

5 that I have 12 minutes left, and so I'm going to

6 try and address as much as I can in those last 12

7 minutes.

8 Prior to recessing, the Court was just

9 beginning to talk about the motion that was made

10 by the Respondent on Pages 3 and 4 of his

11 September 19, 2016 motion for dismissal. And in

12 this particular section of the Respondent's

13 material, the Respondent is asserting that the

14 Respondent did, in fact, provide the FAA with the

15 documentation it requested within six days of the

16 July 1, 2014 letter issued by the FAA to Mr.

17 Curtright, referencing Exhibit 8.

18 And the problem with this particular

19 part of the motion is that the Respondent's

20 exhibits actually don't support this. And the

21 Respondent's exhibits, in fact, state that

22 certain documents were not provided because,
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1 according to the Respondent, they were lost or

2 either in Canada, which is part of the issue that

3 the Court talked a little bit about earlier today

4 in terms of what the summary judgment motions are

5 about.

6 So I would have to find that this

7 particular motion to dismiss has to be denied

8 because it is not consistent with the facts that

9 are undisputed in this case. There certainly is

10 on dispute the material that shows that the

11 Respondent substantially complied with much of

12 the material coming in right away to the FAA. 

13 But that's not the same as fully complying which

14 is why the parties are still in dispute.

15 In terms of Page 5 of the September

16 19, 2016 Respondent's motion to dismiss, there

17 are two different motions to dismiss. And the

18 first one is a motion to dismiss because the

19 Respondent produced records as soon as he located

20 them and, therefore, has met the reasonable

21 standard. And that is actually the crux of the

22 dispute between the parties and the summary
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1 judgment motion material, which the Court is

2 going to be looking forward to hearing more about

3 on January 25, 2017 at 1:30 p.m. Eastern time,

4 and that crux of dispute is really a legal issue.

5 It's really an issue of whether or not

6 there is grounds for the Court either to land on

7 the Respondent's side of the issue, which the

8 Respondent says, there's no time line really, or

9 the FAA's side of the issue where the FAA says,

10 well, the regulation doesn't give a time, but

11 there are some case law that says that you can

12 interpret reasonable in a certain way. So that

13 motion really has to be reserved because it is

14 part of the summary judgment motion process that

15 the parties are still in dispute about and we'll

16 be addressing later next month.

17 Finally, on Page 5 of the Respondent's

18 September 19, 2016 motion for dismissal, there is

19 a motion to dismiss on the grounds of a

20 constitutional violation, the Eighth Amendment

21 specifically, regarding the Proposed Civil

22 Penalty of $11,000. There are two problems with
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1 this particular motion.

2 Number one, first and foremost, there

3 has been no imposition of any civil penalty in

4 these proceedings. So even if the Eighth

5 Amendment applied, it would be premature because,

6 so far, the Proposed Civil Penalty is simply a

7 suggestion by the FAA to this Court and to the

8 Respondent about what the appropriate penalty

9 might be, so nothing has been imposed.

10 But more importantly, number two, the

11 Eighth Amendment applies to criminal matters, not

12 civil matters. And even though it doesn't say

13 that in the Constitution, the has been a number

14 of cases going all the way up to the U.S. Supreme

15 Court that make that very important distinction

16 that the right to be free from cruel and unusual

17 punishments really is addressed -- addresses only

18 criminal matters, and it's not applicable to this

19 particular type of action. So a motion to

20 dismiss on that grounds must be denied.

21 Now, that doesn't mean that the

22 parties -- and Mr. Curtright in particular --
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1 doesn't mean that he cannot, at a later time, say

2 either in a hearing or another motion conference

3 that the proposed $11,000 amount by the FAA seems

4 extraordinarily high, is not appropriate, and is

5 not supported by the facts in these proceedings. 

6 You can always make those arguments. But to

7 assert that you have a right to a dismissal on

8 the grounds of a constitutional violation really

9 is not applicable, and it must be denied.

10 So having said that, I think I've

11 dealt with most of the motions to dismiss that

12 were in the -- if not all, all of the motions to

13 dismiss that were in the September 19, 2016

14 Respondent's motion for dismissal. And I will

15 simply say that any of those that were repeated

16 after September 19, 2016, the rulings would be

17 the same.

18 Let's talk then very briefly about the

19 motion to compel. And Mr. Shayne, you had

20 offered to make some comment about the motion to

21 compel. Your due date for a written response is

22 December 21, 2016, but you wanted to say
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1 something today. So what is it that you want to

2 say today?

3 MR. SHAYNE: Well, Your Honor, it's

4 frivolous because he got the discovery. I did

5 make a mistake. I did make an oversight. It was

6 -- Mr. Cartright is -- or Curtright, sorry, is

7 correct that I should've had it to him by

8 December 2nd. I got it to him by December 6th.

9 Now, on top of that, there was nothing

10 in that -- there was nothing that had been

11 requested that would've been supplied or needed

12 to be supplied with that discovery request that

13 hadn't already been -- that had not already been

14 supplied with our initial disclosures. In other

15 words, all of the evidence that we required to

16 turn over to Mr. Curtright, it already had been

17 turned over.

18 So given the fact that he's got my

19 discovery responses now and he had the documents

20 from before, it's a frivolous motion. That's all

21 I have to say. I'm not planning to file a

22 written response.
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1 JUDGE SULLIVAN: Okay.

2 Mr. Curtright, do you have anything

3 you would like to respond to on that? You may. 

4 You don't need to. Would you like to say

5 anything about that?

6 DR. CURTRIGHT: Yes, Your Honor. So

7 I would object it being called frivolous when he

8 doesn't give it on time when we ask him for

9 documents. We had documents that we asked him

10 for that he wouldn't provide, blocked out

11 documents that referenced -- he had blocked out,

12 you know, that we asked for, and he didn't even

13 supply those. But, you know, we didn't get

14 anything in response to this and then that's why

15 we filed.

16 JUDGE SULLIVAN: Well, I would say to

17 you that if you did not get materials on the day

18 that it was required, then your motion to compel

19 is appropriate. And I will take a much closer

20 look at this and see if there's any particular

21 remedy that needs to be addressed based on what

22 the motion is.
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1 But I think what we need to do for the

2 time being is to focus on the summary judgment

3 issue because that will potentially isolate and

4 resolve matters that can be addressed and then

5 laid to rest in this case. And the summary

6 judgment motion in the Respondent's case really

7 does not address the Proposed Civil Penalty.

8 The focus that I have in the

9 Respondent's motion that we talked about is the

10 violation itself, and I'm presuming at this point

11 that the Proposed Civil Penalty will be addressed

12 separately. I didn't see anything in the

13 Respondent's motion that would allow me to grant

14 summary judgment for the Respondent in terms of a

15 dismissal on the Proposed Civil Penalty if there

16 is a finding against the Respondent.

17 Now, obviously, if there's a finding

18 for the Respondent, then the case would get

19 dismissed in its entirety. But I just want the

20 parties to be aware that the real focus for the

21 Court on the summary judgment motion at this

22 point is the violation itself that's been alleged
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1 and whether or not as a matter of law there is --

2 there can be a finding regarding the reasonable

3 time period, the time period as a whole.

4 So it looks like our time is up. I

5 will simply repeat to the parties I will look

6 forward to any materials that the parties choose

7 to file on or before January 13, 2017 in support

8 of their legal argument. The summary judgment

9 should be granted as a matter of law. And then I

10 will look forward to reconvening with you both on

11 January 25, 2017 at 1:30 p.m. Eastern time for

12 oral argument on that matter.

13 MR. SHAYNE: Your Honor, the

14 Government just has one matter. I was informed

15 during the conference by Mr. Kamberg that he, as

16 far we know, successfully faxed over the entire

17 summary judgment motion again together with 39

18 pages of exhibits. I was wondering, does Your

19 Honor have those or can Your Honor acknowledge

20 that it's been received?

21 JUDGE SULLIVAN: I don't have a fax in

22 my chambers, but if we do not -- if we did not
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1 get it, I'll have a staff person contact you.

2 MR. SHAYNE: Thank you.

3 JUDGE SULLIVAN: You're welcome.

4 DR. CURTRIGHT: Your --Your Honor, may

5 I --

6 JUDGE SULLIVAN: Yes, Mr. Curtright?

7 DR. CURTRIGHT: Well, I think Mr.

8 Shayne thinks he can do everything with emails

9 and things. And really, as you already probably

10 can see, I -- we need to have these things sent

11 certified with return receipt. I'm not always

12 around to receive emails like Mr. Shayne would

13 like to have done, and I'm -- and we get a lot of

14 junk emails in reference to doing what we do. So

15 that would be my request. If you would put that

16 forth, I would appreciate it very much.

17 JUDGE SULLIVAN: Well, he's not

18 required by the regulations to serve you by

19 certified mail. So he certainly can volunteer to

20 do that, but he's not required to do it, and it

21 costs money, so --

22 MR. SHAYNE: Your Honor, we have not
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1 served anything using email as a primary manner

2 of service. If I'm sending documents via email,

3 they are courtesy copies alone.

4 JUDGE SULLIVAN: Okay. And then how

5 are you actually serving the underlying document? 

6 Is it by U.S. Mail or some other means?

7 MR. SHAYNE: Hang on a second, Mr. --

8 but, yes, I believe just to by way of example,

9 complainant's responses. Let's see, first class,

10 and actually we do send it via certificate. We

11 do exactly what Mr. Curtright just complained we

12 don't do.

13 JUDGE SULLIVAN: Well --

14 MR. SHAYNE: We send it to him first

15 class and certified mail.

16 JUDGE SULLIVAN: Well, thank you. 

17 That's -- I'm sure Mr. Curtright appreciates

18 that.

19 So Mr. Curtright, anything else we

20 need to address for you before we close today?

21 DR. CURTRIGHT: Right. We

22 communicated, Your Honor, was U.S. certified.
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1 JUDGE SULLIVAN: Okay. Very good.

2 Then it looks like our business today

3 is complete. I'm going to wish all of you a very

4 happy holiday season in the interim. With that,

5 we can go off the record, and I wish you all a

6 good day. Thank you.

7 MR. SHAYNE: Your Honor, Your Honor.

8 DR. CURTRIGHT: Okay. Thank you,

9 ma'am.

10 (Whereupon, the above-entitled matter

11 went off the record at 3:03 p.m.)

12

13

14

15

16

17

18

19

20

21

22
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A

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absolutely 15:15

accept 15:11 20:22

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acceptable 58:6

accusations 19:11

acknowledge 18:9

39:12 67:19

acted 33:8

acting 4:13

action 62:19

actions 30:13

actual 53:10 54:13

adding 5:6

addition 4:19

additional 40:19

address 11:7 41:4

42:3 59:6 66:7

69:20

addressed 39:2

44:14 47:4 54:19

62:17 65:21 66:4

66:11

addresses 62:17

addressing 61:16

Administration 2:4

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Administrative

1:15

administrator 37:2

admissibility 7:6

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admissible 9:16

10:2

advantage 40:21

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advised 29:6

advisor 4:21

afternoon 4:22

41:14

agency 4:16

agenda 5:7

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agree 28:6 48:4

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agrees 28:5 29:5

aircraft 28:17 29:1

29:2,7,10 38:1

airline 38:6

allegation 28:9,10

28:14

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alleged 54:21 66:22

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allow 66:13

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2:10

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amount 63:3

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apparently 31:19

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APPEARANCES

2:1

Appearing 4:17

appears 15:7 16:7

22:15 28:1,15,19

29:5,13 36:12

43:18

appellate 8:22

applicable 62:18

63:9

applied 62:5

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appreciate 14:4

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appreciates 69:17

appropriate 62:8

63:4 65:19

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57:11

approximately 39:6

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argument 20:6 28:7

40:19 67:8,12

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53:1 63:6

arisen 43:16

articulate 38:12,13

asked 28:22 31:8

31:18 42:1 53:15

65:9,12

asking 23:8 25:7

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assert 63:7

asserting 59:13

assertion 47:7

assistant 4:19

assure 34:17

attach 13:16 14:8

attached 3:5 5:16

7:11 10:15

attachments 10:7

11:3 12:5,14 13:1

13:4 14:2,21 15:2

15:12,21 16:9

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attempts 47:11

attorney 4:11,21

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31:4 39:5 44:15

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authority 24:22

32:7 33:7,17

36:12 37:1 38:22

40:7 48:7,19,20

51:22

automatically 51:2

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27:15 29:20 30:2

30:4,5 31:3 53:5

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balances 31:17

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basically 16:20

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basis 17:18 34:19

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54:16,17 56:16

bat 31:10

bed 44:1

beginning 31:7

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behavior 55:13,22

belief 51:13

believe 13:11 27:6

33:3 69:8

best 51:4 52:22

bet 12:7

better 23:22

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bit 10:3 16:11 22:11

22:17 28:4 35:22

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60:3

blackout 27:8

blocked 65:10,11

body 8:22 10:19,21

13:1

Box 2:9

break 58:1

briefly 5:2 27:21

43:10 44:14 63:18
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bring 41:20

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capacity 21:22

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Cartright 64:6

case 18:13 23:16

30:7,12,17 31:4

33:7,15 34:1,3,3,3

34:4,15 35:2,16

35:20 36:5,18,22

37:5,17,17,19,20

38:2,14,17 39:1

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48:7,20 55:18

57:4 60:9 61:11

66:5,6,18

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34:18 37:2,19

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50:18 56:1 62:14

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45:19 54:20 55:10

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38:13 39:11 40:13

40:17 60:9 68:19

certificate 12:17,20

13:2 37:22 38:7

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certified 16:4 68:11

68:19 69:15,22

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chambers 67:22

chance 11:9 14:20

24:14 45:14 52:14

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change 40:22 52:7

charged 29:16 39:6

Charlie 35:13

check 24:6

checked 38:1

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cite 37:19

cited 31:16 36:15

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civil 18:19 28:17

38:15,17 54:2

57:1,6 61:21 62:3

62:6,12 66:7,11

66:15

claim 32:8

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class 69:9,15

clear 9:22

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clearly 47:21

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closest 33:21

Cody 2:14 4:20

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coming 39:13

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comment 63:20

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communicated

69:22

company 33:1

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compel 6:9 22:20

23:3 56:9,10

57:12 63:19,21

65:18

Compendium 3:4

Complainant 2:2

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complainant's 69:9

complained 69:11

complaint 31:19,21

31:22 32:1 39:9

43:15 46:8 47:5,5

47:13,15 48:11

53:10,14 54:14

55:11

complaints 18:22

45:10

complete 70:3

completely 22:1

complex 50:11

compliance 29:20

33:9 39:14

complied 29:17

60:11

complying 38:19

60:13

concern 53:15

concerns 49:18

conference 4:7,8

5:8 22:8 23:9 26:9

27:20 41:1 59:3

63:2 67:15

Congress 51:4

Conroy 28:22 29:6

consider 8:4

considering 6:21

consistent 60:8

Constitution 62:13

constitutional

61:20 63:8

consult 11:12

contact 68:1

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contained 8:1

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content 55:2

CONTENTS 3:1

continue 14:19

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convened 1:11 4:6

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copy 12:4,7,11,12

15:10 16:9

correct 9:9,10 12:8

57:14 64:7

costs 68:21

country 52:6

couple 38:3

course 51:9 58:2

court 5:4 6:5 9:4

11:11 14:5 20:13

25:4,6 28:2,10

34:19 37:6 39:20

40:3,5 43:5,9,22

44:9,21 46:2 47:9

47:16,18,19,21

48:5,6,13,15,19

48:22 49:3,4,4

50:2,6,14 51:2,3,8

51:8,10 52:22

53:4,14 54:18

59:8 60:3 61:1,6

62:7,15 66:21

Court's 28:1 29:14

48:22 51:15 59:1

courtesy 69:3

cover 13:7

CP96 35:11

created 51:3

credibility 19:16

criminal 62:11,18

cross 5:19 10:4,6

cruel 62:16

crux 60:21 61:4

current 48:21

Curtright 1:5 2:8

4:4,13,18 5:11,21

8:6,8 11:15,18,21

15:10,14,19,22

16:4,8,13,15,16

16:19 17:2,11,15

17:19 18:1,7

19:11,12,19 20:9

20:13,21 23:18,20

24:5,9,13,15,22

25:1,3,9,13,15,22
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26:10,12,18,22

27:5,10 30:4,11

30:21 31:6 32:9

32:12,16,21 33:11

33:19,21 35:3,9

35:11 36:1,2,6

39:12 40:8,21

41:7,15 42:4,19

43:15 45:4,6,11

45:14,15,21 46:3

46:9,14,18 47:2

49:7,14 51:18

58:9,20 59:17

62:22 64:6,16

65:2,6 68:4,6,7

69:11,17,19,21

70:8

Curtright's 39:2

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NEAL R. GROSS

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 

C E R T I F I C A T E

This is to certify that the foregoing transcript 

In the matter of: 

Before: 

Date: 

Place: 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

 

 ----------------------- Court Reporter 

83

William A. Curtright

U.S. Dept of Transportation Office of Hearings

12-08-16

Teleconference