(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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** (202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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 --**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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 re 5 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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 --**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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,**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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?**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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** (202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 31 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 32 

### 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,**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 33 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 34 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 35 

### 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** (202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 36 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 37 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 38 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 39



### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 40 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 41 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 42



### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 43 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 44 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 45 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 46



### 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** (202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 47 

### 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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 48 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 49 

### 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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 50 

### 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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 51



### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 52 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 53 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 54 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 55 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 56 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 57 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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,**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 60 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 61 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 62 

### 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 --**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 63 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

### 68 

### 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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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.**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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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**(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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27:12 54:9 25 27:15,19 41:2(202) 234-4433 Washington DC www.nealrgross.com Neal R. Gross and Co., Inc. 

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25:17 26:13 35:5NEAL 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