In The Matter Of: 

F,'e'S'fu,-, 

U.S. DEPARTMENT OF TRANSPORTATIONf~i OFFICE OF HEARINGS 

WASHINGTON, D.C. DEC 1 6 2015 

HEARING DOCf<ET 

BIRMINGHAM FLIGHT CENTER, INC. 

Docket No. FAA-2014-0867 

Judge J.E. Sullivan 

Respondent. 

FAA Case No. 2012S0090053 

RESPONSE IN OPPOSITION TO MOTION FOR SANCTIONS 

On November 18, 2015, Respondent filed a Motion for Sanctions concerning the FAA's 

non-production of e-mails between third-party witness Alan Long and FAA Aviation Safety 

Inspector Yancey Rushton. Respondent accuses the FAA of having these documents and 

deliberately withholding them. Respondent additionally accuses the FAA of violating Rule 26, 

the Judge's Scheduling Orders, and the FAA's own orders. Respondent further accuses the FAA 

of failing to provide the releasable portions of the EIR. As a result of these supposed misdeeds, 

Respondent seeks to have the entire case against it dismissed. However, Respondent's 

accusations have no basis in fact or law. The FAA did not have the e-mails in its possession at 

any time in this litigation prior to Dr. Long's production of the e-mails, and so could not have 

withheld those documents. The FAA did not violate Rule 26, did not violate the Judge's 

Scheduling Orders, and did not violate its own orders (and, regardless, the FAA staff manual 

cited by Respondent carmot form the basis for sanctions). Further, as the evidence attached to 

Respondent's own motion demonstrates, the FAA did provide the releasable portions of the EIR 

before litigation commenced (and, regardless, even if the FAA had not done so, this could not 

form the basis for sanctions). Respondent's Motion must be denied. 

1 
Factual Background 

On or about September 18, 2012, Respondent operated civil aircraft N525LP, scheduled 

for customer and passenger Dr. Alan Long. These flights were reported to the FAA as suspected 

illegal charter flights, and the FAA began an investigation. During the course of this 

investigation, Inspector Rushton exchanged e-mails with Dr. Long. Exhibit A ~ 4. At the time:, 

Inspector Rushton was stationed at the Flight Standards District Office in Birmingham, Alabama. 

Id. ~ 2. Inspector Rushton transferred to the Denver FSDO in the fall of 2013. I d. ~ 2. 

At the time of the investigation and until early 2014, the FAA e-mail syDtem, which used 

Lotus Notes, was set up with a hard cap on the amount of space that the employee had available 

for e-mail storage. Exhibit A 'j[ 3; Exhibit B ~ 2. If an employee's e-mail exceeded this limit, then 

the employee's e-mail would go into "mail jail," locking the employee out of e-mail until the 

employee contacted technical support and was able to delete e-mails until the total amount stored 

fell below the hard cap. Exhibit A~ 3; Exhibit B ~ 2. Each individual employee had to manage 

how to work with this system. For Inspector Rushton, this meant routinely deleting all e-mails to 

stay under the hard storage cap, with hard copies made of significant e-mails. Exhibit A~ 3. 

On March 16, 2013, Respondent requested that the FAA produce the releasable portions 

of the EIR. See Motion Exhibit A. 1 The FAA produced the releasable portions of the EIR, 

including all of the Items of Proof with a table of contents, and then produced them again as Rule 

26 disclosures. See Motion at 1; Motion Exhibit C. 

On or about April 20, 2015, Respondent e-mai!ed requests for production to the FAA. 

Motion Exhibit E. These requests for production included any statements given in the case, e1 Respondent had previously requested the releasable portions of the EIR from Inspector Rushton on December 26, 

2012. See Motion Exhibit A-1. However, there is no such thing as a releasable portion of an EIR prior to the 

conclusion of the investigation, which occurs when the FAA closes the case without action, takes an action (such as 

a warning letter or Emergency Order), or formally notifies the Respondent of a proposed action (such as with a 

Notice orProposed Civil Penalty). 

2 
mails to or from Dr. Long concerning the subject flight, and any documents generated by 

Inspector Rushton related to this case. !d. ~~ 2, 18, 25. Due to confusion relating to a change in 

agency counsel, the status of the FAA's response to this discovery request was unknown. See 

generally FAA's Motion to Amend S.;;hedule (dated August 20, 2015). On August 19, 2015, 

Respondent for the first time informed the undersigned that these discovery requests had not yet 

been complied with. See id. at 2. 

Although the FAA was under no obligation to obtain documentation from third parties, 

the undersigned telephonically contacted Dr. Long to inform Dr. Long of t.iie request, and ask Dr. 

Long if he had any responsive documents. On August 21, 2015, Dr. Long e-mailed the 

undersigned 11 pages of documents. See Motion Exhibit L. The undersigned produced the first 

seven of these pages to Respondent, but did not include the final four as they were not related to 

the subject flight as requested in Respondent's Request for Production '1[18. See Exhibit B ~ 5; 

Motion Exhibits E, L; 

On August 24,2015, the undersigned sent an e-mail to various FAA personnel, including 

Inspector Rushton, asking if they had any documents other than those contained in the EIR 

Exhibit A ~ 8; Exhibit B ~ 3; Exhibit F. The categories of documents identified included 

statements and/or records of conversation, any e-mails to or from Dr. Alan Long, and any 

document you personally generated about the case. Exhibit B '1!3; Exhibit F. Inspector Rushton 

telephonically contacted the undersigned, and informed the undersigned that he did not have any 

documents. Exhibit A~ 8; Exhibit B ~ 4. 

General discovery in this case closed on August 21, 2015. See Motion Exhibit B. By 

Order dated September 1, 2015, the schedule in this matter was amended to, among other things, 

3 
provide the parties with additional time to respond to outstanding discovery requests, and file 

motions concerning those requests. See Motion Exhibit D ~ 4. 

On or about September 15, 2015, the FAA responded to Respondent's request for 

production. See Motion Exhibit F. Included with this response were the 7 relevant pages of 

documents Dr. Long had provided to the undersigned on August 21, 2015. Compare Exhibit C 

with Motion Exhibit G. In the response to requests for production, the FAA informed 

Respondent that all statements in the FAA's possession had been produced. Motion Exhibit F, 

Responses to Request for Production at "if 2. With regards to Respondent's request for documents 

generated by FAA inspectors, the FAA objected on the basis that the request covered privileged 

documents, such as attorney-client privileged communications and deliberative process 

materials. Id. ~ 25. Not waiving that objection, the FAA noted that all non-privileged materials 

had been produced. Id. 

Although the deadline to issue subpoenas in this matter was June 19, 2015, see Response 

Exhibit B ~ 8, on September 22, 2015, Respondent requested a subpoena against Dr. Long, and 

this subpoena was issued by the hearing docket on September 23, 2015. Response Exhibit H at I. 

The undersigned notified Dr. Long that he may receive a subpoena, and also noted possible 

responses to that subpoena. Motion Exhibit N. 

On September 29, 2015, Respondent sent the undersigned a letter identifYing purported 

deficiencies in the FAA's September 15, 2015, discovery responses. Exhibit C. Respondent 

made no reference to requests for production 2 or 18. See id. With regards to request for 

production 25, Respondent requested a privilege log. I d. at 2. With regards to request for 

production 25, the undersigned informed Respondent that the information required by Rule 

26(b)(5)(A) had already been provided. Response Exhibit P at 2. The FAA noted that it had 

4 
withheld e-mails between counsel and client, and asserted that no further description was 

necessary for Respondent to conclude that the privilege asserted was valid. Id. With regards to 

the deliberative process privilege, the und-orsigned informed Respondent that the only 

deliberative process documents withheld were portions of the EIR. Id. 

On October 21, 2015, Respondent's counsel served the subpoena on Dr. Long. Response 

Exhibit H at 3. The undersigned again contacted Dr. Long about the subpoena, and possible 

responses to it. Response Exhibit 0. Although the subpoena was issued four months after the 

deadline to issue subpoenas, and two months after the close of general discovery, the FAA did 

not move to quash the subpoena. See Exhibit B ~ 10. 

The documents produced by Dr. Long pursuant to the subpoena included e-mail 

exchanges between Dr. Long and Inspector Rushton. See generally Motion Exhibit J. The 

subpoena also included a request for copies of any documents sent by Dr. Long to the 

undersigned, and Dr. Long produced document in response to this request as well. Compare 

Motion Exhibit K with Motion Exhibit G. 

When the subject of October 2012 e-mails between Dr. Long and Inspector Rushton was 

raised in November 2015, Inspector Rushton said that he thought he had printed these e-mails 

out and included them i:J. the investigative file kept at the Birmingham FSDO. Exhibit A~ 4, 9. 

Review of the investigative file at the Birmingham FSDO revealed no e-mail printouts, except 

the items of proof from the EIR. Exhibit D ~ 4. As such, it appears that, at the time Inspector 

Rushton deleted the e-mails them as part of his routine course of conduct, either he erroneously 

believed that he had already printed out and preserved the e-mails, or that he had not identified 

the e-mails as ones that needed to be preserved. See Exhibit A '1[1 0. As a result, at no relevant 

time during this litigation has the FAA had these e-mails in its possession. 

5 
Argument 

Respondent Did Not Engage In Good Faith Efforts To Resolve This Dispute 

In :ts Motion, Respondent invokes Rule 3 7, and includes a Rule 3 7 certification. See 

Motion at 5-6 and Rule 37 Certification. However, Respondent engaged in no good faith 

discussion- or discussion of any sort- concerning the subject of its Motion. 

It is unclear whether a Rule 3 7 certification is required under these circumstances, as 

Respondent is not filing a Motion to Compel under Rule 37(a) or a motion under Rule 37(b) 

concerning failure to produce a person for deposition. Rather, Respondent's motion appears to 

fall under the scope of Rule 37(c)(l), which does not specifically require a good faith 

certification. Further, the Judge's scheduling Order only requires a good faith effort to confer 

before filing a motion to compel, not a motion for sanctions. 

However, as Respondent did include a Rule 37 certification, it is troubling that this 

certification and Respondent's discussion in the body of its motion misrepresents that a relevant 

discussion of discovery matters took place. While Respondent clearly contacted the undersigned 

about some discovery matters, none of those matters touched on whether the FAA had produced 

all e-mails between Dr. Long and Inspector Rushton. See Exhibit C; Motion Exhibit P. 

Respondent did ask about interrogatory #25, but only with regards to withholding of deliberative 

process and attorney-client privileged materials (which obviously do not include e-mails between 

an FAA inspector and a third-party witness). Exhibit C. If Respondent had engaged in good faith 

efforts to resolve this situation, Respondent would have learned that the central assertion 

underpinning its motion - that the FAA had documents and did not disclose them - was 

incorrect, and thus avoided additional motion practice. 

6 
Additionally, Respondent's certification that the FAA failed to provide a complete copy 

of the releasable portions of the EIR is blatantly false, as evident from Respondent's own motion 

- the FAA produced every item of proof from the EIR. Compare Rule 3 7 Certification (claiming 

that FAA failed to provide releasable portions of the EIR) with Motion Exhibit C (table of 

contents ofltems of Proof in EIR and accompanying documents). 

The FAA Did Not Have TheE-mails At Any Relevant Time During This Litigation 

As discussed in the factual background above, the documents at issue in Respondent's 

motion were not in the possession of the FAA at any ?Oint in time during this litigation, until Dr. 

Long produced them in response to Respondent's subpoena. See Exhibits A, B. Although 

Respondent repeatedly claims in its motion that th~ FAA had, but did not produce, these 

documents during initial disclosures or during discovery, see, e.g., Motion at 6, 8, 13, 19, this 

claim is simply mistaken. The appropriate consequences, or lack thereof, of this failure to 

preserve - which has proved harmless - are addressed later in this Response. But the central 

premise of Respondent's motion- that the FAA had but withheld pertinent documents - is 

simply inaccurate. 

In addition to generally removing the primary premise of Respondent's motion, the fact 

that the FAA did not have these documents - and that the undersigned did not know that these 

documents had ever existed - defeats Respondent's assertion that the undersigned in some way 

violated Rule 26(g). See Motion at 19 (arguing without any discussion that Rule 26(g) sanctions 

are warranted). The FAA's discovery responses have all been complete and correct, to the best of 

the undersigned's knowledge, at any time the undersigned has signed a discovery response in 

this case. See Exhibit B ~ 12. Indeed, not only were those responses complete to the best of the 

7 
undersigned's knowledge, they were in fact complete, because the FAA could not have produced 

documents it no longer possessed. 

The FAA Did Not Seek To Prevent Dr. Long From Complying With the Subpoena 

Respondent also complaints that the FAA attempted to prevent Dr. Long from complying 

with Respondent's subpoena. See Motion at 4-6. It appears that, in Respondent's opinion, the 

undersigned even mentioning to Dr. Long the pos3ibility of a response other than complying 

with the subpoena constitutes some sort of impermissible desire on the part of the undersigned to 

prevent Dr. Long's compliance. See id. at 5-6. ~s~JOndent's suggestion is preposterous, and flies 

in the face of the evidence. If the undersigned had opposed Dr. Long's compliance with the 

subpoena, the FAA would have moved to quash the subpoena, the severely untimely subpoena 

would most likely have been quashed, and Dr. Long would never have been required to comply 

with it. Far from being indications of bad faith, the undersigned's interaction with Dr. Long (and 

his attorneys), and the FAA's decision not to file a Motion to Quash, are evidence of good faith. 

Respondent focuses on what Respondent describes as the undersigned "urging" Dr. Long 

to move to quash the subpoena. See Motion at 5. As an initial matter, the undersigned did not 

know that these e-mails existed, and so could not possibly have been motivated by a desire to 

prevent their release. See Exhibit B ~ 11, 13. Additionally, not only is Respondent's view a 

facially inaccurate reading of the undersigned's e-mails to Dr. Long, it ignores the fact that the 

FAA could have, but did not, file a motion to quash the subpoena. See 14 C.F.R. § 13.228(b) 

(authorizing either party to move to quash a subpoena served on ~third party to the litigation). 

Since Respondent did not serve the subpoena until October 21,2014- over four mont.hs after the 

deadline to issue subpoenas and two months after the close of general discovery - it is 

reasonably likely that, had a motion to quash been filed, it would have been granted. See Motion 

8 
Exhibits B, H. Further, Dr. Long's attorney had specifically informed the undersigned that, if the 

FAA moved to quash the subpoena, then Dr. Long would not comply with the subpoena until 

that motion was resolved by the court. Exhibit B ~ 7. If the FAA had sought to conceal these emails from Respondent, the FAA could have filed a Motion to Quash with every expectation that 

it would be granted, and that the e-mails would never be disclosed by Dr. Long. But the FAA did 

not file a Motion to Quash. 

In short, if the FAA and/or the undersigaed had sought to prevent the release of 

documents in the possession of Dr. Long, there is every reason to believe that those documents 

would not have been released. While the Respondent accuses the FAA of see!<ing to prevent 

access to these documents, the facts demonstrate that this assertion is false - the FAA could 

easily have prevented the release of documents in Dr. Long's possession, but took no action to 

prevent Respondent's access. 

The FAA Fully Complied With Rule 26 and the Judge's Scheduling Order 

Respondent asserts that the FAA did not comply with Rule 26, or the Judge's Order 

implementing Rule 26 disclosures. See Motion at 2, 18-19. Respondent appears to misunderstand 

the scope of Rule 26(a)(1)(A)(ii), which does not cover the documents at issue in Respondent's 

Motion. See Respondent's Motion at 2 (incorrectly describing the FAA's Rule 26 disclosures as 

identifying that there existed no other relevant documents). The FAA did fully comply with Rule 

26 and the Judge's April 7, 2015 Order enforcing Rule 26? 

Rule 26(a)(1)(A)(ii) requires disclosures of "all documents, electronically stored 

information, and tangible things that the disclosing party has in its possession, custody, or 

control and may use to support its claims or defenses, urJess the use would be solely for 

2 Indeed, the only apparent violation of the court's discovery orders present in these circumstances were committed 

by Respondent, most notably when Respondent sought and then served subpoenas months after the last date on 

which this was permitted by the court's orders. 

9 
impeachment." Agency counsel was unaware of the documents at issue in Respondent's Motion 

and thus those documents could not possibly have been documents the FAA was considering 

using in support of its claims and defenses. Indeed, while the undersigned has not taken a 

substantive review of the ultimate significar1ce of the documents, Respondent i:self asserts that 

these documents are damaging to the FAA's case and, therefore, would presumably not have 

been identified as documents the FAA "may use to support its claims," even if agency counsel 

had been aware of their existence. Rule 26(a)(l)(A)(ii) does not, contrary to Respondent's belief, 

see Motion at 2, require the disclosure of all relevant documents and a Rule 26 disclosure does 

not assert that there exist no other possible relevant documents. See F .R.C.P. 26(a)(l )(A)(ii). 

The fact of ultimate importance, however, is that the FAA did not have the e-mails, and 

so could not possibly have violated Rule 26 by failing to disclose them. 

The EIR Was Appropriately Assembled 

Although it is unclear what relevance it has in a motion concerning non-production of 

documents during discovery, Respondent complains that the reporting inspector, in assembling 

the EIR, did not place in it every single e-mail sent to or from Dr. Long during the investigation? 

Motion at 6-12. Respondent is correct that not every single e-mail sent to or from Dr. Long 

during the investigation was placed as an item of proof in the EIR, but such inclusion was not 

required, or even expected. 

As an initial matter, it is noteworthy that Respondent has cited to no case, regulation, or 

other legal principle to tie its contentions on this front into its Motion for Sanctions. Even if it 

was true that the reporting inspector should have, but did not, include more communications as 

3 Of even less apparent relevance, Responder.t complains about the contents of Inspector Rushton's e-mails. See 

Motion at 12. Suffice it to note that, simply because the FAA does not charge Respondent with lack of insurance 

(because that is not a violation of the FARs), 'Nith engaging in a pattern of improper conduct (because the FAA has 

to charge and prove specific acts cfviolation, not general patterns), or of being motivated by profit at the expense of 

safety (because that is not a violation of the!' ARs), does not mean that these things are untrue. See Exhibit A 'If 7. 

10 
Items of Proof in the EIR, Respondent makes no argument as to why this would result in some 

sort of sanction against the FAA. And, indeed, Respondent could make no vaJ.id argument on this 

front, for there is no case or other legal principle that would support such a contention. 

Regardless, however, there was nothing impermissible about the scope of the EIR. Just as 

Rule 26(a)(l)(A)(ii) does mt require a pa.'Ty to disclose every possibly relevant document, no 

FAA Order or legal principle requires an FAA inspector to include in the EIR every single 

document bearing any possible relation to the investigation. Here, the documents singled out by 

Respondent' consist of e-mails between the inspector and Dr. Long in which the inspector is 

asking Dr. Long to provide complete information on the flight. See Motion at 10-12, Motion 

Exhibit J at 442, Motion Exhibit R. Respondent identifies no principle mandating their inclusion 

Respondent seeks to rely on provisions of FAA Order 2150.3, see Motion at 13-17, but 

these arguments are unavailing - first because Respondent identifies no basis for concluding that 

a violation of 0:-der 2150.3B is conduct for which the FAA can be sanctioned, and second 

because there were no violations ofthe Order. 

FAA Order 2150.3B is the FAA's general order on its Compliance and Enforcement 

Program. Its purpose is to describe the authority, responsibilities, policies, guidelines, 

procedures, objectives, and legal aspects of the FAA's compliance and enforcement program. 

FAA Order 2150.3B at 1-1.5 Order 2150.3B is "a staff manual" providing general guidance to 

FAA employees in the exercise of their discretion in handling enforcement matters. !d. Order 

4 Respondent also ignores the fact that Inspector Rushton had to engage in these e-mail exchanges at all only 

because Respondent had, after the flight, contacted Dr. Long and attempted to convince him that to pretend that it 

had really been a demonstration flight and that Respondent would "take care of it." See Response Motion Exhibit J 

at 442. It appears that, to Respondent, it is acceptable for Respondent to try to cover up its violation, but 

unacceptable for an FAA investigator to encourage a witness to provide a full accounting of the violation. 

5 All citations to FAA Order 2150.3B are made to Change 4, which became effective May I, 2012, and was in effect 

for the rest of2012 and all of2013. A copy of the pertinent sections of the Order is attached as Exhibit E. 

11 
2150.3B "does not create any right or l:enefit, substantive or procedural, enforceable at law by 

any party against the FAA, its officers, or its employees." Id Respondent does not provide any 

argument or citation as to why a failure to adhere to the guidance in this staff manual could result 

in sanctions against the FAA because no such citation exists. Even if an FAA investigator fails to 

dot his 'i's and cross his 't's as explained in Order 2150.3B, this does not somehow provide a 

Respondent with a 'get out of jail free' card. There is no enforceable benefit here in any way, 

shape, or form - much less one enforceable by the dismissal Respondent requests. 

Further, there was no violation of Order 2150.3B. Respondent argues that h1spector 

Rushton violated Order 2150.3B by not seeking to "understand the apparent violator's position." 

Motion at 13-14. It is difficult to see how one would assess compliance with such a general 

suggestion, and it is also difficult to see how having a better "understanding" of Respondent's 

position would have affected the outcome of the investigation. Where, as here, a Respondent 

deliberately violates the regulations (and then tries to cover it up), there is very little to 

"understand" that will rebound to the benefit of the Respondent. 

Respondent notes that FAA investigators are to gather relevant evidence, and include in 

the EIR evidence that tends to prove or disprove the allegations. Response at 14-15. Respondent 

seems to believe that the referenced e-mails are in the "disprove" category, but does not explain 

how, and it is not apparent that they do, given that they consist primarily ofthe inspector asking 

a witness to provide a full and complete statement of events.6 Certainly an inspector is not 

required to include in the EIR each and every document or communication sent or received 

during an investigation. Respondent is effectively asking the court to re-examine the entire 

6 If anything, the statement by Dr. Long that Respondent only identified the subject flight as a demonstration flight 

after Respondent became aware that another company was aware of the improper nature of the flight would tend to 

prove that the flight was not a demonstration flight, and that this was simply a cover story invented by Respondent 

after the fact. The Inspector did not include the statement because it was duplicative of other statements. Exhibit A 

1f5. 

12 
investigation, decide for itself what evidence an investigator needed to include in a file, and then 

sanction the FAA if the court thinks that a document was important enough to include, but the 

investigator did not. There is no legal basis for such an examination. 

Respondent asserts that the inspector was prohibited from making promises of 

confidentiality, but the supposed promises of confide:1tiality cited by Respondent are nothing of 

the sort. See Motion at 15-16. Respondent's first example is a statement by Inspector Rushton 

that enforcement action would not be taken against Dr. Long - hardly a shocking notion, since 

Dr. Long was the primary victim of Respondent's violation, in that Dr. Long was provided with 

charter services that did not meet the safety stan<!ards required for such operations. See Motion at 

15-16; Exhibit J at 445. The second statement is a request 0y Inspector Rushton that Dr. Long 

not provide Respondent with information on the investigation. See Motion at 16. Neither is a 

promise of confidentiality, and reading either as a promise of confidentiality is somewhat strange 

given that this motion arises out of a subpoena serve0. on Dr. Long, whose identity has not been 

kept confidential in any way. Indeed, even if there was a promise of confidentiality, and even if 

there was some enforceable provision here, it is difficult to see how that enforcement would 

rebound to Respondent's benefit, when the supposed promise of confidentiality was made to 

Respondent's victim. 

Finally, Respondent spends extensive time discussing guidance on how FAA 

i.1westigators should authenticate evidence, see Motion at 16-17, but it is difficult to see how this 

pertains to this situation - how an inspector authenticates an e-mail is not guidance on whether 

the inspector should include the e-mail as an item of proof in the first place. 

In sum, the reporting inspector here did not violate the general guidance provided in FAA 

Order 2150.3B. More significantly, however, Order 2150.3B is a staff manual that provides 

13 
general guidance to FAA employees on how to conduct investigations - it is not a document that 

creates any sort of enforceable right for Respondent, or any other member of the public. 

The FAA Produced the Releasable Portions of the EIR 

Respondent claims that the FAA failed to produce the releasable portions of the EIR. 

Motion at 17-18. This assertion is false. Further, Respondent's basis for asserting the relevance 

of the releasable portions of the EIR does not apply in this forum. 

Respondent asserts that the FAA did not provide the releasable portions of the EIR, but 

this contention is shown to be false by ~spondent' s ovm motion, which includes the table of 

contents of all of the items of proof from the EIR, and then copies of all of those items of proof, 

and a statement that they were provided by the FAA. Motion at 1; Exhibit C. 

Further, the provision that Respondent cites - 49 C.F.R. § 821.19(d) - is part of the 

NTSB' s Rules of Practice and Procedure. This case is not being litigated before the NTSB, and 

§ 821.19( d) has no force or effect here. It is not surprising that there is no similar provision in 14 

C.P.R. Part 13, which governs these proceedings, because that provision of the NTSB's rules 

was enacted specifically because of the Pilot's Bill of Rights, Pub. L. No. 112-53, 126 Stat. 1159 

(August 3, 2012), which applies only to airmen who are the subject of an investigation that could 

affect their airman certificates. See 78 F.R. 57527-01 (September 19, 2013) (enacting 49 C.F.R. 

§ 821.19(d)). The NTSB has jurisdiction to hear appeals concerning certificate actions. By 

contrast, this forum has no jurisdiction to hear appeals of certificate actions. 

No Sanction Is Warranted For The FAA's Failure to Preserve the Documents at Issue 

Most of Respondent's motion is based on the unfounded conjecture that the FAA was in 

possession responsive documents and willfully chose not to produce them. See generally Motion. 

However, as discussed above, Respondent's assumption is inacc-.rrate. Rather, this motion 

14 
presents a situation where an FAA employee deleted e-mails pursuant to a routine retention 

practice, either not identifying the particular e-mails as needing to be preserved, or thinking that 

they had been preserved in the form of a printout. The deleted e-mails were later replaced 

through additional means, in this case from the other individual involved in the e-mail exchange. 

Federal Rule of Civil Procedure 37 specifically addresses this situation: 

(e) Failure to Preserve Electronically Stored Information: 

If electronically stored information that should have been preserved in the 

anticipation or conduct of litigation is lost because a party failed to take 

reasonable steps to preserve it, and it cannot be restored or replaced through 

additional discovery, the court: 

FRCP 37(e). 

(1) upon finding prejudice to another party from loss of the information, 

may order measures no greater than necessary to cure the prejudice; or 

(2) only upon finding that the party acted with the intent to deprive 

another party of the information's use in the litigation may: 

(A) presume that the lost information was unfavorable to the party; 

(B) instruct the jury that it may or must presume the information 

was unfavorable to the party; or 

(C) dismiss the action or enter a default judgment. 

Under the express terms of Rule 37(e), no sanction is appropriate under the sequence of 

events presented in this situation. Even assuming that the FAA should have preserved these emails in anticipation of litigation, Rule 37(e) authorizes court action only where the 

electrD'lically stored information "cannot be restored or replaced through additional discovery." 

The lost information- the e-mails -has already been replaced through additional discovery. As 

such, any sanction would be inappropriate in this situation. 

15 
In its motion, Respondent does not reference Rule 37(e), but Respondent does reference 

Rules 37(b)(2) (failure to coml)ly with a discovery order) and Rule 37(c) (failure to disclose). 

Motion at 18-19. Neither of these provisions is applicable here, as their citf.tion is based on 

Respondent's unfounded assumption that the FAA possessed certain documents and then chose 

not to disclose them. 

Further, Respondent has cited no applicable authority in support of its request that the 

court dismiss the Complaint. The one case cited by Respondent where dismissal of action was 

imposed, Wade v. Sao Line R.R. Corp.,500 F.3d 559 (7th Cir. 2003), was vastly more egregious 

than even Respondent's inaccurate allegati;ms in this case. In Wade, the plaintiff in a case 

seeking damages relating to an injury deliberately withheld documents that admitted that he was 

not, in fact, injured. Jd.at 561-62. Not only were the documents initially withheld, but when it 

was noticed that there were additional documents available and the defendant specifically asked 

for them, plaintiffs attorney then removed some of those documents and presented the 

remainder as if it was the entire production. !d. at 560-561. Plaintiff then obtained an order 

compelling production of the documents, and the documents were still not timely produced. Id. at 

562. The district court dismissed the case as a sanction for the attorney's misconduct, and also 

imposed monetary sanctions on the attorney for the litigation costs occurring after the failure to 

disclose, noting that there was no prejudice in this to the plaintiff because the information 

contained in the withheld documents would have resulted in summary judgment being granted to 

the defendant anyway. !d. In Wade, it was undisputed that plaintiffs attorney had repeatedly and 

deliberately withheld evidence. Here, even assuming the counterfactual scenario where the FAA 

even had these documents, there is no evidence of bad faith or willful misconduct, as opposed to 

simple error. In Wade, the withheld documents contained direct admissions that the plaintiffs 

16 
case was unfounded. Here, the cited documents consist of e-mails from an FAA inspector 

encouraging a witness to provide a complete statement, and an e-mailed statement in which the 

witness specifically diswss~s how the first reference to the subject flight as a "demonstration" 

flight came only after Respondent had been alerted that others were aware of the improper 

operation. See Motion a~ 10-12, Motion Exhibit J at 442, Motion Exhibit R. The documents at 

issue here do not resemble the "smoking gun" present in Wade. In short, the one case cited by 

Respondent where dismissal was found to be appropriate is not at all like the situation alleged by 

Respondent,'much less the actual facts, and Respondent presents no argument why it is. 

The other citations concerning less severe sanctions are similarly unavailing. Respondent 

cites Second Chance Body Armor, Inc. v. American Body Armor, Inc., 177 F.R.D. 633 (N.D. Ill. 

1998) for the notion that striking a portion of a pleading can be imposed, but the court in Second 

Chance found that striki_ng an affirmative defense would be inappropriate, in part noting that 

"Plaintiff has not really suffered any injury because it has already received the information it 

requested." Id. at 637. Respondent cites Patterson v. State Auto Mut. Ins. Co., 105 F.3d 1251, 

1252 (8th Cir. 1997) about the notion of deeming matters admitted, but the only sanctions 

involved in that case related to failure to disclose part of the basis for an expert's opinions (and 

the sanctioit was that the expert was not permitted to testify about that basis). Id. at 1252-53. 

None of the factual patterns in those cases bear any resemblance to the situation in this case. 

In sum, the actual facts of the situation are that the FAA did not produce these documents 

in discovery because it did not have them. The electronic records were deleted pursuant to a 

mutine document retention practice employed by Inspector Rushton to deal with the limitations 

of the FAA's e-mail system at the time. Even assuming that the documents were ones that should 

17 
have been preserved in anticipation of litigation, the documents in question have been produced 

from another source, and any sanction would be inappropriate. See F.R.C.P. 37(e). 

Conclusion 

The pnmary gravamen of Respondent's Motion for Sanction is that the FAA had 

documents in its possession and willfully and in bad faith withheld them during the discovery 

process. The scenario, however, has no evidentiary basis, but rather represents conjecture on the 

part of Respondent. Rather, this situation involves loss of electronically stored information as 

part of a routine retention practice, anci the lost inror.nation has been recovered from elsewhere. 

Additionally, Respondent's complaints about the original assembly of the EIR are mistaken, and 

even if they were not, alleged violations of the staff manual contained in FAA Order 2150.3B do 

not represent any sort of procedural protections for an outside party such as Respondent. 

Respondent's Motion should be denied in full, and no sanction imposed. 

vX~ 

Respectfully submitted this _0_ day of December, 2015. 

CHRISTOPHER R STEVENSON 

Attorney 

Office of the Chief Counsel 

Enforcement Division- Southern Team 

18 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Reply in Support of Motion to Deem Admitted was sent: 

original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

one copy via Federal Express to: 

The Honorable J .E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310} 

Washington, DC 20590 

facsimile: (202) 366-7536 

Paul R. Borth, Esq. 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025 

facsimile: (815) 356-7042 

!DfC ..: 9 

Dated 

19 
In The Matter Of: 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

BIRMINGHAM FLIGHT CENTER, INC. 

Docket No. FAA-2014-0867 

Judge J.E. Sullivan 

Respondent. 

FAA Case No. 2012S0090053 

DECLARATION OF YANCEY RUSHTON 

COMES NOW the Declarant, Yancey Rushton, and states as follows: 

1. I am over the age of 18 and I understand the obligations of an oath. 

2. I am Aviation Safety Inspector (Operations) at the Federal Aviation Administration. 

When I began working at the FAA in 2007, I was stationed at the Birmingham FSDO, and 

worked there until the fall of2013, when I transferred to the Denver FSDO. 

3. I was the reporting inspector for EIR No. 2012S0090053. When I was investigating this 

case, and during all of 2013, my e-mail had a strict limit on the amount of e-mail I could store. 

Going over this limit meant that my e-mail would shut down until I got back under the limit. In 

order to deal with this, I would routinely delete all e-mail, printing out anythlng that seemed 

important. The FAA no longer uses this e-mail system, and I no longer have this limit on my email storage, but I was not on the new system until sometime in 2014. 

4. During my investigation into this case, I exchanged e-mails with Dr. Alan Long. My 

recollection was that I had printed these e-mails out and put them in the investigative file at the 

Birmingham FSDO, and eventually deleted the e-mail itself in order to avoid going over the email limit. I do not know exactly when I deleted these particular e-mails, but I know that it would 

have been before I left the Birmingham FSDO in the fall of 2013, because I know that I did not 

keep any e-mails about Birmingham business when I transferred to Denver. 

5. I have reviewed the portions of thee-mails between Dr. Long and I that are printed in the 

"Motion for Sanctions." I did not include these e-mails as Items of Proof in the EIR because, in 

my judgment, the e-mails where I encourage Dr. Long to tell the whole truth about the flight 

didn't prove or disprove anythlng about the case, and Dr. L:mg's initial written statement was 

incomplete and duplicative of his more complete, later written statement. We do not include 

every single e-mail exchange as Items of Proof in our EIRs, only those that add something to the 

evidence. 

GOVERNMENT 

EXHIBIT 

A 
6. I did not make any promises of confidentiality to Dr. Long. I did assure him that he 

would not be the subject of an enforcement action. 

7. All of my statements to Dr. Long in my e-mails were true to the best of my knowledge at 

the time, and are true to the best of my knowledge now. My investigation into this flight had 

uncovered evidence that Birmingham Flight Center had conducted other illegal charter 

operations, including at least one using Dr. Long's Baron, had used unqualified pilots, and had 

pressured one of the pilots of this flight into making false entries in his pilot logbook. 

Birmingham Flight Center's violations in this case were part of a systemic issue, not a one-time 

event. One of the pilots on this flight, and a flight the week before with Dr. Long's wife and 

child on board, was not qualified at all on the aircraft used on this flight, and did not meet the 

insurance experience standards for the flight the week before with Dr. Long's wife and child (the 

pilot did meet the minimum FAA standards for that aircraft). Birmingham Flight Center was 

aware of the pilot's lack of qualification (which was why it had pressured the pilot to make false 

entries in the logbook). If there had been an accident or incident on one of these flights, with an 

unqualified pilot (by FAA standards on one flight and by the insurance experience standards on 

the other), I do not believe that any aviation insurance would have paid out on that claim. The 

violations in this case, and these sorts of violations generally, are committed out of a desire to 

turn a profit and without regard for the safety risks involved. Sometimes the passengers on these 

sort of illegal flights know what is going on, but it was clear here that Dr. Long did not. 

8. On August 24, 2015, attorney Stevenson sent me an e-mail asking if I had certain 

documents on this case (other than what was in the EIR). I called him and told him that I did not 

have any documents. I told him this because I did not have any documents. 

9. When attorney Stevenson called me about the Motion for Sanctions, I told him what I 

describe above - that I had printed out copies of the e-mails and put them in the investigative 

file, and that I had later deleted the e-mails as I always did in order to stay under the e-mail size 

limit. 

10. I have seen the declaration of my former supervisor, Pat Bruce, stating that the e-mails 

are not in the investigative file. My recollection must have been mistaken. Given that my 

recollection of the specifics of this situation was incorrect, I carmot be sure of what actually 

happened, but at the time I deleted these e-mails, probably either did not realize I needed to keep 

them, or thought I had already printed them out, and then deleted them not realizing that there 

was no hardcopy. 

Further declarant sayeth naught. 

I, Yancey Rushton, declare this sif day of December, 2015, under penalty of perjury that 

the above state nts are true and correct. 

2 
In The Matter Of: 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASIDNGTON, D.C. 

BIRMINGHAM FLIGHT CENTER, INC. 

Docket No. FAA-2014-0867 

Judge J.E. Sullivan 

Respondent. 

FAA Case No. 201280090053 

DECLARATION OF CHRISTOPHER STEVENSON 

COMES NOW the Declarant, Christopher Stevenson, and states as follows: 

1. I am over the age of 18 and I understand the obligations of an oath. 

2. At all times during 2012 and 2013, the FAA used Lotus Notes for the employee e-mail 

client. The way Lotus Notes was set up, each employee had a hard cap on the amount of data that 

could be kept in the employee's local e-mail storage. I do not recall what the particular data cap 

was, but it was quite low. Each employee had to individually manage their e-mail to avoid going 

over this cap. Going over the cap would result in the employee's e-mail account being placed in 

"mail jail," with the account locked down until IT could reopen access for the purpose of 

deleting e-mails to get back below the data cap. 

3. On August 24, 2015, I sent an e-mail to Aviation Safety Inspector Yancey Rushton (and 

others) asking for copies of (among other things) any statements taken about the case, any emails to or from Dr. Alan Long, and any documents created by the inspector about the case. I 

noted that I did not need copies of documents contained as items of proof in the EIR. 

4. Inspector Rushton telephonically responded to this e-mail. During that conversation he 

informed me that he did not have any responsive documents. 

5. Around that time, I also reached out to Dr. Long to see if he had any e-mails regarding 

the flight in this case. Dr. Long initially had me speak with his attorney, but after explaining that 

Dr. Long was a witness in the case, not the target of an investigation, I was able to speak with 

Dr. Long personally. Dr. Long produced 11 pages of documents. I provided 7 of those in 

discovery. I did not provide the other four because they had no relation to this case. 

6. I contacted Dr. Long when the subpoena was requested and again when it was served. As 

can be seen in my e-mails, I did note the possibility of filing a motion to quash. At no time did I 

urge or encourage Dr. Long to file a motion to quash. I had a similar conversation wuJ'.§J~~·--.... IIIo 

GOVERNMENT 

EXHIBIT 

6 
at Aviation Services Group about the subpoena that Respondent served on them (I did not 

contact ASG when Respondent first requested the subpoenas). 

7. Dr. Long's original attorney referred the subpoena matter to Richard Monk, a litigation 

attorney at the firm. I spoke with attorney Monk about the subpoena. Ultimately, Mr. Monk 

informed me that it would be easiest for Dr. Long to comply with the subpoena. Mr. Monk 

explicitly stated that, if the FAA wanted to file a motion to quash, Dr. Long would not produce 

any documents while that motion was pending. I informed Mr. Monk that I wanted to speak with 

ASG before making a decision. 

8. During my conversation with Bob Kent at ASG, he also informed me that it would be 

easiest for ASG to comply with the subpoena. Mr. Kent expressed concern about the scope of the 

subpoena, and I agreed with him that it was overbroad, but indicated that I did not know if 

Respondent would seek to enforce the entire subpoena. Mr. Kent ultimately re-iterated his 

original conclusion that he would prefer to simply comply with the subpoena. 

9. I informed Mr. Kent, and then informed Mr. :tvionk, that the FAA would not be filing a 

motion to quash the subpoenas. 

10. I had considered filing motions to quash for two reasons. First, because the subpoenas 

were overbroad in several ways, and I thought this was unfair to the third-party witnesses. 

Second, on general principle, because Respondent had requested and served these subpoenas not 

just after the deadline to serve subpoenas, but after the close of general discovery. However, as 

the third-party witnesses thought it was easier for them to simply comply, I ultimately did not 

file motions to quash. 

11. At no time during any of the abo-ve-described conversations or considerations was I 

aware of the e-mails to or from Dr. Long that are the subject of Respondent's motion for 

sanctions. 

12. All discovery responses in this case were complete and correct to the best of my 

knowledge at the time I signed the responses. 

13. I was not aware of thee-mails until I received Respondent's motion for sanctions (I had 

received from Mr. Monk a copy of the documents provided to Respondent in response to the 

subpoena, but I had not yet had an opportunity to review them). 

Further declarant sayeth naught. 

. c;.}\..A.. 

I, Christopher Stevenson, declare this _D_ day of December, 2015, under penalty of 

perjury that the above statements are true and correct. 

~c21- Christopher ZSln 

2 
~BARNETT& 

li~i~ Bo~r!!,·I;~£ 

800 Waukegan Road, Suite 200 • Glenview, Illinois 60025 

847-809-9520 

September 29, 2015 

Christopher Stevenson 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 Southern Region 

1701 Columbia Avenue College Park, GA 30337 

Via E-mail: Chris.Stevenson@faa.gov 

Re: In Re Birmingham Flight Center Discovery 

Mr. Stevenson: 

prb@barnettlegal.com 

I have had the opportunity to review your discovery responses and have the following 

comments.ln response to respondent's expert interrogatories you state that "the FAA has not 

identified any expert witnesses at this time." In addition, you object claiming privilege in 

response to Respondent's expert requests for production numbers 2, 3, 4 and Respondent's 

request for production numbers 5, 6, 7, 10, 12, 24, and 25. A review of the documents disclosed 

by Administrator demonstrate that Mr. Rushton and Mr. Hargett were both involved in the 

investigation of this case on behalf of the FAA and both wrote reports concerning their 

investigation. 

It is our position that both Mr. Rushton and Mr. Hargett are experts in the eyes of the 

Federal Rules subject to rule 26 and, accordingly, your objections and claims of privilege 

respecting response requests for expert discovery are unfounded. You have identified Mr. 

Rushton as an individual who will provide testimony at the hearing but have merely disclosed 

that "Mr. Rushton will provide testimony respecting all FAA allegations contained in the 

administrator's complaint for which he has personal knowledge". Your answer to Respondent's 

interrogatory number 7 states that the FAA anticipates calling the three FAA aviation safety 

inspectors who were involved in the investigation as well. 

The allegations of the administrator's complaint concern CFR's that one would assume 

Mr. Rushton has studied and for which Mr. Rushton holds opinions vis-a-vis the factual scenario 

involved in this case drawing on his experience as a former owner of a charter service (Rushton 

Air). Federal Rule of Civil Procedure Rule 26 (2) Disclosure of Expert Testimony dictates that: 

(A) In General. In addition to the disclosures required by Rule 

26(a)(l), a party must disclose to the other parties the identity of 

any witness it may use at trial to present evidence under Federal 

Rule of Evidence 702, 703, or 705. 

GOVERNMENT 

EXHIBIT 

l[Page L. 
(B) Witnesses Who Must Provide a Written Report. Unless 

otherwise stipulated or ordered by the court, this disclosure must 

be accompanied by a written report-prepared and signed by the 

witness-if the witness is one retained or specially employed to 

provide expert testimony in the case or one whose duties as the 

party's employee regularly involve giving expert testimony. 

The report must contain: 

(i) a complete statement of all opinions the witness will express 

and the basis and reasons for them; 

(ii) the facts or data considered by the witness in forming them; 

(iii) any exhibits that will be used to summarize or support them; 

(iv) the witness's qualifications, including a list of all publications 

authored in the previous I 0 years; 

(v) a list of all other cases in which, during the previous 4 years, 

the witness testified as an expert at trial or by deposition; and 

(vi) a statement of the compensation to be paid for the study and 

testimony in the case. 

(C) Witnesses Who Do Not Provide a Written Report. Unless 

otherwise stipulated or ordered by the court, if the witness is not 

required to provide a written report, this disclosure must state: 

(i) the subject matter on which the witness is expected to present 

evidence under Federal Rule of Evidence 702, 703, or 705; and 

(ii) a summary of the facts and opinions to which the witness is 

expected to testify. (Emphasis supplied). 

Both Mr. Yancey and Mr. Hargett meet the criteria of"one whose duties as the party's 

employee regularly involve giving expert testimony". They are both employees of the FAA and 

their positions with the FAA likely involve regularly providing expert testimony in cases such as 

the present one. Accordingly the Administrator has failed to comply with Rule 26 (2)(B) in all 

respects and notwithstanding Rule 26(2), Respondent would be severely prejudiced by being 

forced to cross examine an expert whose opinions have not been previously disclosed. We would 

appreciate it if you would reconsider your objections and purported privileges and provide us 

with full disclosure of the opinions and documents requested in respondent's discovery requests. 

fu addition to your purported privileges have not been accompanied by a privilege log. 

Since 1993, FRCP 26(b)(5) has included the following language: "When a party withholds 

information oiherwise discoverable by claiming that the information is privileged or subject to 

protection as trial preparation material, the party must: i) Expressly make the claim; and ii) 

Describe the nature of the documents, communications, or tangible things not produced or 

disclosed -- and do so in a manner that, without revealing information itself privileged or 

protected, will enable other parties to assess the claim. The language of Rule 26(b)(5) is 

"commonly satisfied by filing a privilege log." Wolk v. Green, No. C06-5025 BZ, 2007 WL 

3203050, at *1-2 (N.D. Cal. 2007). We would appreciate it if at your earliest convenience, you 

would file a privilege log that meets the above criteria so that an in camera inspection may be 

conducted. 

With respect to your answers to Respondent's non-expert interrogatories, interrogatory 

number 7 requests a brief summary of the facts and opinions of which each identified witness 

will testify. Absent from your answer is any indication of the facts and opinions that will be 

expressed by the three FAA aviation safety inspectors. At your earliest convenience please 

provide a more thorough answer to this interrogatory. 

21Page 
Interrogatory number 8 asks the Administrator to provide a list of the documents that will 

be used to support the Administrators claim that respondent violated aviation regulations. While 

the Respondent is in possession of the EIR, he is not cognizant of which documents contained in 

the EIR will be used by the Administrator to support his case. While it is true that the 

Respondent "can read the documents for itself' the Respondent is uncertain of which documents 

the Administrator deems supportive of his case. Please provide a more thorough answer to this 

interrogatory. 

Based on the Administrator's answer to interrogatory number 10 and 11 and the 

Administrator's response to respondent's request for production numbers 16, the Respondent 

assumes that the Administrator has no affirmative responses to these requests and is waving the 

potential use of responsive documents related to these requests. Please advise if the Respondent 

is mistaken in this regard. 

With respect to the Respondent's responses to the Administrator's discovery, Respondent 

stands by the answers and responses previously served upon the Administrator and disagrees 

with the arguments to the contrary set forth in your undated letter on this subject. 

PRB/tbm 

31Page 
In The Matter Of: 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

BIRMINGHAM FLIGHT CENTER. INC. 

Docket No. FAA-2014-0867 

Judge J.E. Sullivan 

Respondent. 

FAA Case No. 2012S0090053 

DECLARATION OF J>AT BRUCE 

COMES NOW the Declarant. Pal Bruce. and states as follows: 

l. I am over the age of 18 and I understand the obligations of an oath. 

2. I am the Front Line Manager {Operations) as the Alabama and Northwest Florida Flight 

Standards District Office (Birmingham FSDO}. and I have held that position since before the 

beginning of the investigation into EIR No. 20 12S0090053. 

3. When Inspector Yancey Rushton Jell the Birmingham FSDO. the office tile for EIR No. 

20 I 2S0090053 remained here. ' 

4. I have reviewed the Binningham FSDO office tile for EIR No. 20 12S0090053. It does 

not contain any e-mails to or ti·om Dr. Alan Long, except those that are included as items of 

proof in the EIR. 

5. To the best of my knowledge. no documents have been removed ti·mn the lile since 

Inspector Yancey Rushton left the FSDO. and I have no reason to believe that any documents 

might have been removed. 

Fut1her declarant sayeth naught. 

~~ ~ 

I. Pat Bruce, declare this _3_ day of December, 2015, under penalty of perjury tlmt the 

above statements are true and correct. 

; /~~'? ~ Bmce-""· """'""'-'"--"'--"----

GOVERNMENT 

EL)BIT 
10/01/07 2150.38 

Chapter 1. Introduction 

1. Purpose ofthis Order. This order describes the authority, responsibilities, policies, 

guidelines, procedures, objectives, and legal aspects of the Federal Aviation Administration's 

compliance and enforcement program. The policies and procedures described in this order 

explain how the FAA generally intends to exercise its discretion in carrying out statutory and 

regulatory enforcement responsibilities. 

2. Whom This Order Affects. 

a. This order applies to the compliance and enforcement programs and activities of all FAA 

offices that have regulatory responsibilities. These offices include the Flight Standards Service, 

Aircraft Certification Service, Office of Aerospace Medicine, Office of Airports, Office of 

Security and Hazardous Materials, and Office of Commercial Space Transportation. 

b. This order is a staff manuaL It guides FAA enforcement personnel in the exercise 

of their discretion in handling compliance and enforcement matters. However, it does not cover 

every situation, and there will be situations where deviation is warranted, and FAA personnel are 

expected to use their experience and sound judgment in carrying out their compliance and 

enforcement responsibilities. 

c. This order does not create any right or benefit, substantive or procedural, enforceable at 

law by any party against the FAA, its officers, or its employees. 

3. Distribution. The FAA distributes this order as follows: 

a. To the associate administrator and assistant administrator level in Washington, D.C., the 

regional administrator level, the center director level, and the Chief Operations Officer of the Air 

Traffic Organization. 

b. To the director level in the offices of the Associate Administrator for Aviation Safety; the 

Associate Administrator for Airports; the Assistant Administrator for Security and Hazardous 

Materials; the Assistant Administrator for Aviation Policy, Planning, and Environment; and the 

Assistant Administrator for International Aviation, and the Vice President level in the Office of 

the COO, Air Traffic Organization. 

c. To the division level in the regional Air Traffic Organization offices and the field offices 

oftheATO. 

d. To the branch level in the regional Airports, Aerospace Medicine, Security and 

Hazardous Materials, and Flight Standards Divisions, and Aircraft Certification Directorates. 

e. To the branch level at the Civil Aerospace Medical Institute, Airmen and Aircraft 

Registry, FAA Academy, and in the Security and Investigations Division at the Aeronautical 

Center. 

1-1 

GOVERNMENT 

EXHIBIT 

E 
Stevenson, Chris (FAA) 

From: 

Sent: 

To: 

Subject: 

Importance: 

Clay, Yancey, Dave, 

Stevenson, Chris {FAA) 

Monday, August 24, 2015 8:42AM 

Rushton, Yancey (FAA); Hargett, David W {FAA); Perkins, Clay (FAA) 

Birmingham Flight Center, 201250090053 

High 

are so any 

documentation on thetase that did not end up as an lOP in the Elll. The parti<;'utar categories they are looking for are: 

Statements and/or records of conversations; 

Any documentation relatlngto Bob Kent, Aviation services Group, or N525lP; 

Any e-mails to or from Dr. Alan tong; 

Any e-mails.to or fr!lmAviation Sel'\iices Group; 

Any dDcuments relating to Birmingham Fligjlttenter (orallyone else) storing long's aircraft; 

Any financial documentation aboutthe flight; 

Any written agreements between Lot\g and Birmingham ~lioht ,·,.~t ... Anv doooum,entvou pen;onally gE~net,~ted abautthe 

Thank you, 

Christopher Stevenson 

Attorney 

Office of the Chief Counsel. 

Enforcement Division-Southern Team 

(404) 305·5208 

1 

GOVERNMENT 

EXHIBIT 

p