InThe Matter Of: F,'e'S'fu,-, U.S. DEPARTMENT OF

## TRANSPORTATIONf~i OFFICE OF HEARINGS

WASHINGTON, D.C. 

## DEC 16 2015 

## HEARING DOCf<ET

BIRMINGHAM FLIGHT CENTER, INC. DocketNo. FAA-2014-0867 Judge J.E. Sullivan Respondent. FAA Case No. 2012S0090053
RESPONSE IN OPPOSITION TO MOTION FORSANCTIONS 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 ofviolating Rule 26, the Judge's Scheduling Orders, and the FAA's own orders. Respondent further accuses the FAA offailing to provide the releasable portions ofthe EIR. As a result ofthese 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 ofthe 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 staffmanual 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 ofthe EIR before litigation commenced (and, regardless, even ifthe FAA had not done so, this could not form the basis for sanctions). Respondent's Motionmustbe denied.

1FactualBackground 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 inBirmingham, Alabama. 

### Id.

**~** 2. Inspector Rushtontransferredto the DenverFSDO inthe fall of2013. 

### I d.

**~** 2. At the time ofthe investigation and until early 2014, the FAA e-mail syDtem, which used Lotus Notes, was set up with a hard cap onthe amount ofspace that the employee had available for e-mail storage. ExhibitA 'j[ 3; ExhibitB

**~** 2. Ifan employee's e-mail exceededthis 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 howto work withthis system. For Inspector Rushton, this meantroutinely deleting all e-mails to stay under the hard storage cap, withhard copies made ofsignificant e-mails. Exhibit

**A~** 3. On March 16, 2013, Respondent requested that the FAAproduce the releasable portions of the EIR. 

### See Motion Exhibit 

### A. 1 The FAA produced the releasable portions of the EIR, including all ofthe Items ofProofwith atable ofcontents, and thenproducedthem again as Rule 26 disclosures. 

### See Motionat 1; MotionExhibit 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, e1Respondenthadpreviously requested the releasable portions ofthe EIRfrom Inspector Rushton on December 26, 2012. See MotionExhibit A-1. However, there is no such thing as a releasable portion ofan EIRpriorto the conclusion ofthe investigation, which occurs when the FAA closes the case without action, takes an action (such as a warning letter orEmergency Order), orformally notifies the Respondent ofa proposed action (such as with a Notice orProposedCivil Penalty). 2mails 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 ofthe 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 contactedDr. Long to informDr. Long oft.iie request, and ask Dr. Long if he had any responsive documents. On August 21, 2015, Dr. Long e-mailed the undersigned 11 pages ofdocuments. See Motion Exhibit L. The undersigned produced the first
seven ofthese pages to Respondent, but didnot 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; MotionExhibits E, L; On August 24,2015, the undersigned sent an e-mail to various FAApersonnel, 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 nothave 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 inthis matter was amendedto, 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 hadbeen 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 subpoenawas issuedbythe 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. MotionExhibitN. 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



### 4withheld 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 deliberativeprocess documents withheld were portions ofthe 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 ofgeneral discovery, the FAA did notmove to quashthe 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 MotionExhibit K with MotionExhibit G. When the subject ofOctober 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 ofthe investigative file at the Birmingham FSDO revealed no e-mail printouts, except the items ofproof from the EIR. Exhibit D**~** 4. As such, it appears that, at the time Inspector Rushton deleted the e-mails them as part ofhis routine course ofconduct, 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[10. As a result, at no relevant time during this litigationhas the FAAhadthese e-mails in its possession.



### 5Argument RespondentDidNotEngage In GoodFaith 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 ofany sort- concerning the subject ofits 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 amotion for sanctions. However, as Respondent did include a Rule 37 certification, it is troubling that this certification and Respondent's discussion in the body ofits motion misrepresents that a relevant discussion ofdiscovery matters took place. While Respondent clearly contacted the undersigned about some discovery matters, none ofthose 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 ofdeliberative process and attorney-clientprivilegedmaterials (which obviously do not include e-mails between
an FAA inspector and athird-party witness). Exhibit C. IfRespondent 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.

6Additionally, Respondent's certification that the FAA failed to provide a complete copy ofthe releasable portions ofthe EIRis blatantly false, as evident from Respondent's ownmotion

- the FAA produced every item ofprooffrom 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 ofProofinEIR and accompanying documents). The FAA DidNotHave TheE-mailsAtAnyRelevant Time During This Litigation As discussed in the factual background above, the documents at issue in Respondent's motion were not inthe possession ofthe FAA at any ?Oint intime 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 ofRespondent'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 ofthe

7undersigned's knowledge, they were infact complete, because the FAA couldnothave produced documents itno longerpossessed. The FAA DidNot Seek To PreventDr. LongFrom 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 ofimpermissible desire onthe part ofthe 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 beenrequired to comply with it. Far from being indications ofbad faith, the undersigned's interactionwithDr. Long (and his attorneys), and the FAA's decision notto file a Motion to Quash, are evidence ofgoodfaith. 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 ofthe 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 subpoenauntil 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 likelythat, had a motionto 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, ifthe 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. Ifthe FAA had sought to conceal these emails from Respondent, the FAA could have filed aMotion to Quashwith every expectation that it would be granted, and thatthe e-mails would never be disclosedbyDr. Long. Butthe 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 ofDr. 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 ofdocuments in Dr. Long's possession, but took no action to prevent Respondent's access. The FAA Fully Complied With Rule 26andthe 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 ofRule 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 thatthere 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 ofthe court's discovery orders present inthese circumstances were committed by Respondent, mostnotably whenRespondent sought andthen served subpoenas months afterthe last date on which this was permittedby the court's orders. 

### 9

### impeachment." Agency counsel was unaware ofthe 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 ofthe ultimate significar1ce ofthe documents, Respondent i:selfasserts 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 ifagency counsel had been aware oftheir existence. Rule 26(a)(l)(A)(ii) does not, contrary to Respondent's belief,

see 

### Motion at 2, require the disclosure ofall relevant documents and a Rule 26 disclosure does not assertthatthere existno otherpossible relevant documents. See 

### F.R.C.P. 26(a)(l)(A)(ii). The fact ofultimate importance, however, is that the FAA did not have the e-mails, and
so couldnotpossibly have violated Rule 26 by failing to disclose them. The EIR WasAppropriatelyAssembled 

### 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 notplace initevery single e-mail sentto 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 ofproofin 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 ifit
was true that the reporting inspector should have, but did not, include more communications as

3 Ofeven less apparentrelevance, Responder.t complains aboutthe contents ofInspectorRushton's e-mails. See Motion at 12. Suffice itto notethat, simply because theFAA does not charge Respondent with lack ofinsurance (because thatis not a violation ofthe FARs), 'Nith engaging in a pattern ofimproperconduct (because the FAA has to charge andprove specific acts cfviolation, not generalpatterns), or ofbeingmotivatedbyprofitat the expense of safety (because thatisnot a violation ofthe!' ARs), does notmeanthatthese things are untrue. See Exhibit A

### 'If 7. 

### 10

### Items ofProofin the EIR, Respondent makes no argument as to why this would result in some sort ofsanction againstthe FAA. And, indeed, Respondent couldmake 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 ofthe 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 ofFAA 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 staffmanual" providing general guidance to FAA employees in the exercise oftheir discretion in handling enforcement matters. !d. Order

4 Respondent also ignores the fact thatInspector Rushton hadto engage in these e-mail exchanges atall only becauseRespondenthad, afterthe flight, contactedDr. Long and attemptedto convincehimthatto pretendthatit hadreally been a demonstration flight and thatRespondentwould "take care ofit." See ResponseMotionExhibit J at 442. Itappears that, to Respondent, it is acceptable for Respondentto try to coverup its violation, but unacceptablefor an FAA investigatorto encourage a witness to provide a full accounting ofthe violation. 5 All citations to FAA Order 2150.3B are made to Change 4, whichbecame effective May I, 2012, and was in effect for therest of2012 and all of2013.A copy ofthe pertinent sections ofthe Order is attached as Exhibit E.
112150.3B 

### "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 staffmanual couldresult in sanctions againstthe FAAbecauseno such citation exists. Even ifan 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 ofjail free' card. There is no enforceable benefit here in any way, shape, or form

- much less one enforceable bythe dismissal Respondentrequests. 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" ofRespondent'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" thatwillreboundto the benefitofthe 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 itis not apparent thatthey do, giventhat 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 Ifanything, the statementbyDr. LongthatRespondent only identifiedthe subject flight as a demonstration flight after Respondentbecame aware that another company was aware ofthe impropernature ofthe flight would tendto provethatthe flight was not a demonstration flight, and thatthis was simply a cover story inventedby Respondent after the fact. The Inspector did not includethe statementbecause itwas duplicative ofother statements. ExhibitA 

### 1f5. 12investigation, decide for itselfwhat evidence aninvestigator neededto include in a file, and then sanction the FAA ifthe court thinks that a document was important enough to include, but the investigator did not. There is no legal basis for such anexamination. Respondent asserts that the inspector was prohibited from making promises of confidentiality, butthe supposed promises ofconfide: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 ofRespondent's violation, inthat Dr. Long was provided with charter services that didnotmeetthe 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 ofconfidentiality, andreading either as a promise ofconfidentiality is somewhat strange given that this motion arises out ofa subpoena serve0. on Dr. Long, whose identity has notbeen kept confidential in any way. Indeed, even ifthere was a promise ofconfidentiality, 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, butit is difficultto see howthis pertains to this situation

- how an inspector authenticates an e-mail is not guidance on whether the inspector should includethe e-mail as an item ofproofinthe first place. Insum, the reporting inspector here did notviolatethe general guidance provided in FAA Order 2150.3B. More significantly, however, Order 2150.3B is a staff manual that provides



### 13general guidance to FAA employees on how to conduct investigations

- itis not a document that creates any sort ofenforceable rightfor Respondent, or any othermember ofthe public. The FAA Producedthe 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 ofthe releasable portions ofthe EIR does not apply inthis forum. Respondent asserts that the FAA did not provide the releasable portions ofthe EIR, but this contention is shown to 

### be false by

**~spondent'**s ovm motion, which includes the table of contents ofall ofthe items ofprooffrom the EIR, and then copies ofall ofthose items ofproof, and a statementthatthey were providedbythe 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 ofPractice and Procedure. This case is not being litigated before the NTSB, and 

### § 821.19(d) has no force or effecthere. Itis not surprising that there is no similar provision in 14 C.P.R. Part 13, which governs these proceedings, because that provision ofthe NTSB's rules
was enacted specifically because ofthe Pilot's Bill ofRights, Pub. L. No. 112-53, 126 Stat. 1159 (August 3, 2012), which applies only to airmen who are the subject ofan investigationthat 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 nojurisdictionto hear appeals ofcertificate actions. No SanctionIs WarrantedFor The FAA's Failure to Preserve the Documents atIssue

Most ofRespondent's motion is based on the unfounded conjecture that the FAA was in possession responsive documents and willfully chose notto produce them. See generallyMotion. However, as discussed above, Respondent's assumption is inacc-.rrate. Rather, this motion

14presents 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, orthinking that they had been preserved in the form of a printout. The deleted e-mails were later replaced through additional means, inthis case from the other individual involved in the e-mail exchange. Federal Rule ofCivil 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 ofthe information, may ordermeasures no greaterthannecessaryto curethe prejudice; or (2) only upon finding that the party acted with the intent to deprive anotherparty ofthe information's use inthe litigationmay: (A) presumethatthe lostinformationwas unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorableto theparty; or (C) dismissthe action or enter a defaultjudgment.

Under the express terms ofRule 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 sanctionwould be inappropriate inthis situation.



### 15In 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 FAApossessed 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 ofaction 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 ofthe 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 onthe 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 inthe withheld documents would have resultedin summaryjudgmentbeing grantedto the defendant anyway. 

### !d. In 

### Wade, it was undisputedthat plaintiffs attorney hadrepeatedly and deliberately withheld evidence. Here, even assuming the counterfactual scenario where the FAA

evenhadthese documents, there is no evidence ofbad 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 likethe situation allegedby Respondent,'much less the actual facts, and Respondentpresents no argumentwhy it is. The other citations concerning less severe sanctions are similarly unavailing. Respondent cites Second Chance BodyArmor, Inc. v. American BodyArmor, Inc., 177 F.R.D. 633 (N.D. Ill. 1998) for the notion that striking aportion ofapleading canbe imposed, but the court in Second Chance found that striki_ng an affirmative defense would be inappropriate, in part noting that "Plaintiffhas 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 inthat case related to failure to disclose part ofthe 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 ofthe factual patterns inthose casesbear any resemblance to the situation in

### this case. In sum, the actual facts ofthe situation are thatthe FAA did notproduce 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 ofthe FAA's e-mail system atthe time. Even assumingthatthe documents were onesthat should

17

### have beenpreserved in anticipation oflitigation, the documents in question have been produced from another source, and any sanctionwouldbe 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, butrather represents conjecture on the part of Respondent. Rather, this situation involves loss of electronically stored information as part ofa routine retention practice, anci the lost inror.nation has been recovered from elsewhere. Additionally, Respondent's complaints aboutthe original assembly ofthe EIR are mistaken, and
even ifthey were not, alleged violations ofthe staffmanual contained inFAA Order 2150.3B do not represent any sort of procedural protections for an outside party such as Respondent. Respondent's Motion shouldbe denied infull, and no sanctionimposed.



### vX~ Respectfully submittedthis

### _0_day ofDecember, 2015.

CHRISTOPHER

### R STEVENSON Attorney Office ofthe ChiefCounsel EnforcementDivision- SouthernTeam

18CERTIFICATE OF SERVICE I hereby certifythatthe foregoing Reply in Support ofMotionto DeemAdmitted was sent: original and one copy via certifiedmailto: Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWrightBuilding- Suite 2W1000
one copy viaFederalExpress to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, SE(Ell-310} Washington, DC 20590 facsimile: (202) 366-7536 Paul R. Borth, Esq. Barnett & Borth, LLC 800 WaukeganRoad, 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. DocketNo. 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 Iunderstand the obligations ofan 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 Itransferred to the Denver FSDO. 3. I was the reporting inspector for EIRNo. 2012S0090053. When I was investigating this case, and during all of2013, my e-mail had a strict limit on the amount ofe-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 Iwas not onthe new systemuntil 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 itselfin order to avoid going over the email limit. I do notknow exactly when I deleted these particular e-mails, but Iknowthat it would have been before I left the Birmingham FSDO in the fall of2013, because I know that I did not keep any e-mails about Birminghambusiness when Itransferred to Denver. 5. I have reviewed the portions ofthee-mails between Dr. Long and Ithat are printed in the "Motion for Sanctions." I did not include these e-mails as Items ofProofin the EIR because, in myjudgment, 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 ofProofin our EIRs, only those that add something to the evidence. 

### GOVERNMENT EXHIBIT 

# A6. I did not make any promises of confidentiality to Dr. Long. I did assure him that he wouldnotbethe subject ofan enforcement action. 7. All ofmy statements to Dr. Long in my e-mails were true to the best ofmyknowledge at the time, and are true to the best ofmy 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 ofa systemic issue, not a one-time event. One ofthe 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 weekbefore withDr. Long's wife and child (the pilot did meet the minimum FAA standards for that aircraft). Birmingham Flight Center was aware ofthe pilot's lack ofqualification (which was why ithad pressured the pilot to make false entries inthe logbook). Ifthere had been an accident or incident on one ofthese flights, with an unqualified pilot (by FAA standards on one flight and bythe 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 ofviolations generally, are committed out of a desire to turn a profit and without regard for the safety risks involved. Sometimes the passengers onthese sort ofillegal flights knowwhat is going on, but it was clearhere 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 inthe EIR). I called him and told himthat I did not have any documents. I told himthis because I didnothave 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 ofthe 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 ofmy 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 ofthe 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 ofDecember, 2015, underpenalty ofperjurythat the above state nts are true and correct.

2In

### The Matter Of: U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS



### WASIDNGTON, D.C.



### BIRMINGHAM FLIGHT CENTER, INC. DocketNo. FAA-2014-0867 Judge J.E. Sullivan Respondent. FAA Case No. 201280090053
DECLARATION OF CHRISTOPHER STEVENSON 

### COMES NOWthe Declarant, Christopher Stevenson, and states as follows: 1. I am overthe age of 18 and I understand the obligations ofan 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 setup, each employeehad a hard cap onthe amount ofdatathat 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 getbackbelowthe 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 ofdocuments contained as items ofproofinthe EIR. 4. Inspector Rushton telephonicallyresponded to this e-mail. During that conversationhe informed me thathe did nothave any responsive documents. 5. Around that time, I also reached out to Dr. Long to see ifhe had any e-mails regarding the flight inthis 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 ofan 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 otherfour because theyhad 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 offiling a motion to quash. At no time did I urge or encourage Dr. Long to file a motion to quash. Ihad a similar conversation**wuJ'.§J~~·--** 

### .... IIIo GOVERNMENT EXHIBIT



# 6at Aviation Services Group about the subpoena that Respondent served on them (I did not contact ASGwhenRespondent 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, ifthe FAA wanted to file a motion to quash, Dr. Long would not produce any documents while thatmotion was pending. I informed Mr. Monkthat I wanted to speak with ASGbefore 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 withthe subpoena. Mr. Kent expressed concern aboutthe scope ofthe 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 conclusionthat he wouldpreferto simply comply withthe subpoena. 9. I informed Mr. Kent, and then informed Mr. :tvionk, that the FAA would not be filing a motionto quashthe 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 ofgeneral 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 atthe time I signedthe responses. 13. I was not aware ofthee-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, butI had not yet had an opportunityto review them). Further declarant sayethnaught.



### . c;.}\..A.. I, Christopher Stevenson, declare this _D_ day ofDecember, 2015, underpenalty of perjurythatthe above statements are true and correct.



# ~c21- Christopher ZSln

2

# ~BARNETT&

**li~i~ Bo~r!!,·I;~£**  800 WaukeganRoad, Suite 200 • Glenview, Illinois 60025 847-809-9520 September 29, 2015 Christopher Stevenson Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue College Park, GA 30337 ViaE-mail: Chris.Stevenson@faa.gov Re: In Re BirminghamFlight CenterDiscovery Mr. Stevenson: prb@barnettlegal.com

I have hadthe opportunity to review your discovery responses and have the following comments.lnresponse to respondent's expert interrogatories you state that "theFAAhas not identified any expert witnesses atthis time." In addition, you object claimingprivilege 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 ofthe documents disclosed byAdministrator demonstrate that Mr. Rushton and Mr. Hargett were both involved inthe investigation ofthis case on behalfofthe FAA and bothwrote reports concerning their investigation. Itis ourpositionthat both Mr. Rushton and Mr. Hargett are experts inthe eyes ofthe Federal Rules subjectto rule 26 and, accordingly, your objections and claims ofprivilege respecting response requests for expert discovery are unfounded. You have identified Mr. Rushton as an individual who will provide testimony atthe hearing buthave merely disclosed that "Mr. Rushton will provide testimony respecting all FAA allegations contained in the administrator's complaintfor whichhe has personal knowledge". Your answer to Respondent's interrogatory number 7 states that the FAA anticipates callingthethree FAA aviation safety inspectors who were involved in the investigation as well. The allegations ofthe 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 onhis experience as a former owner ofa charter service (Rushton Air). Federal Rule ofCivil Procedure Rule 26 (2) Disclosure ofExpertTestimony dictates that: (A) In General. In addition to the disclosures requiredbyRule 26(a)(l), a party must disclose to the other parties the identity of any witness it mayuse at trial to present evidence under Federal Rule ofEvidence 702, 703, or 705. 

### GOVERNMENT EXHIBIT l[Page 

# L.(B) Witnesses Who MustProvide a Written Report. Unless otherwise stipulated or orderedbythe court, this disclosure must be accompaniedbya writtenreport-prepared and signed bythe witness-ifthewitness is one retained or specially employed to provideexpert testimony in the case or onewhose duties as the party's employee regularly involve giving expert testimony. Thereport mustcontain: (i) a complete statement ofall opinionsthe witness will express and the basis andreasons for them; (ii) the facts or data considered bythe witness in forming them; (iii) any exhibitsthat will be usedto summarize or supportthem; (iv) the witness's qualifications, including a list ofall publications authored intheprevious I0 years; (v) a list ofall other cases in which, during theprevious 4 years, the witness testified as an expert at trial orby deposition; and (vi) a statement ofthe compensationto bepaid for the study and testimony inthe case. (C) Witnesses WhoDoNotProvide a Written Report. Unless otherwise stipulated or orderedbythe court, ifthe witness is not required to provide a writtenreport, this disclosure must state: (i) the subject matter on which the witness is expectedtopresent evidence underFederal Rule ofEvidence 702, 703, or 705; and (ii) a summaryofthe facts and opinions to whichthewitness is expectedtotestify. (Emphasis supplied). BothMr. Yancey andMr. Hargett meetthe criteria of"onewhose duties as the party's employeeregularly involve giving experttestimony". Theyare both employees ofthe FAA and theirpositions withthe FAA likely involve regularly providing experttestimony in cases such as the presentone. Accordinglythe Administrator has failed to complywith Rule 26 (2)(B) in all respects and notwithstanding Rule 26(2), Respondentwould be severelyprejudiced bybeing forced to cross examine an expert whose opinions have notbeenpreviously disclosed. We would appreciate it ifyou wouldreconsider your objections andpurportedprivileges andprovide us with full disclosure ofthe opinions and documents requested 

### in respondent's discoveryrequests. fu addition to your purportedprivilegeshave not been accompaniedby a privilege log. Since 1993, FRCP 26(b)(5) has included the following language: "When a party withholds information oiherwise discoverable byclaimingthatthe information isprivileged or subjectto protection as trialpreparationmaterial, thepartymust: i) Expresslymakethe claim; and ii) Describe the nature ofthe documents, communications, ortangible things notproduced or disclosed

-- and do so in a mannerthat, withoutrevealing information itselfprivileged or protected, will enable otherpartiesto assess the claim. The language ofRule 26(b)(5) is "commonly satisfiedby filing a privilege log." Wolk v. Green, No. C06-5025 BZ, 2007 WL 3203050, at *1-2 (N.D. Cal. 2007). Wewould appreciate it ifat your earliest convenience, you would file a privilege logthatmeets the above criteria so that an in camera inspection maybe conducted. Withrespectto your answers to Respondent's non-expert interrogatories, interrogatory number7 requests a briefsummary ofthe facts and opinions ofwhicheach identified witness will testify. Absentfrom your answer is any indication ofthe facts and opinions thatwill be expressedbythethree FAA aviation safetyinspectors. Atyour earliestconvenience please provide a more thorough answer to this interrogatory. 21PageInterrogatory number 8 asks the Administrator to provide a list ofthe documents that will be used to supportthe Administrators claim thatrespondent violated aviation regulations. While the Respondent is in possession oftheEIR, he is notcognizant ofwhich documents contained in the EIRwill be usedbythe Administratorto supporthis case. While it is true that the Respondent "canreadthe documents for itself'the Respondent is uncertain ofwhich documents the Administrator deems supportive ofhis case. Please provide a morethorough answerto this interrogatory. Based ontheAdministrator's answerto interrogatorynumber 10 and 11 and the Administrator's response to respondent's request forproductionnumbers 16, the Respondent assumes thattheAdministratorhas no affirmative responses tothese requests and is waving the potential use ofresponsive documents related to these requests. Please advise ifthe Respondent is mistaken inthis regard. With respecttothe Respondent's responses to the Administrator's discovery, Respondent stands bythe answers andresponses previously serveduponthe Administrator and disagrees with the arguments tothe contrary setforth in your undated letter onthis subject.

PRB/tbm

31PageIn 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 Iunderstand the obligations ofan 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 ofthe investigation into EIR No. 20 12S0090053. 

### 3. When Inspector Yancey Rushton Jell the Birmingham FSDO. the office tile for 

### EIR No. 20I2S0090053 remained here. ' 4. I have reviewed the Binningham FSDO office tile for EIR No. 20 12S0090053. It does not contain any e-mails to orti·om Dr. Alan Long, except those that are included as items of proofin the EIR. 5. To the best ofmy 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 ofDecember, 2015, under penalty ofperjury tlmt the above statements are true and correct.



## ;



# /~~'?

**~** Bmce-""·"""'""'-'"--"'--"----

GOVERNMENT EL)BIT10/01/07 2150.38 Chapter 1. Introduction
1. Purpose ofthis Order. This order describes the authority, responsibilities, policies, guidelines, procedures, objectives, and legal aspects ofthe Federal Aviation Administration's compliance and enforcementprogram. The policies and procedures described in this order explain how the FAA generally intends to exercise its discretion in carrying out statutory and regulatory enforcementresponsibilities. 2. Whom This OrderAffects.
a. This order applies to the compliance and enforcement programs and activities ofall FAA offices that have regulatory responsibilities. These offices include the Flight Standards Service, Aircraft Certification Service, Office ofAerospace Medicine, Office ofAirports, Office of Security andHazardous Materials, and Office ofCommercial SpaceTransportation. b. This order is a staffmanuaL Itguides FAA enforcement personnel inthe exercise oftheir discretion inhandling compliance and enforcementmatters. However, it does not cover every situation, and there will be situations where deviation is warranted, andFAApersonnel are expected to use their experience and soundjudgment in carrying outtheir compliance and enforcementresponsibilities.
c. This order does not create any right or benefit, substantive or procedural, enforceable at law by any party againstthe 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 ChiefOperations Officer ofthe Air Traffic Organization. b. To the director level in the offices ofthe Associate Administrator for Aviation Safety; the Associate Administrator for Airports; the AssistantAdministrator for Security and Hazardous Materials; the Assistant Administrator for Aviation Policy, Planning, and Environment; andthe AssistantAdministrator for International Aviation, andthe Vice President level inthe 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 CertificationDirectorates.
e. To the branch level atthe Civil Aerospace Medical Institute, Airmen and Aircraft Registry, FAAAcademy, and in the Security and Investigations Division atthe Aeronautical Center. 1-1 GOVERNMENT EXHIBIT 

# EStevenson, Chris (FAA) From: Sent: To: Subject: Importance: Clay, Yancey, Dave, Stevenson, Chris {FAA) Monday, August24, 2015 8:42AM Rushton, Yancey (FAA); Hargett, David W {FAA); Perkins, Clay (FAA) Birmingham Flight Center, 201250090053 High

are so any documentation on thetasethatdid notend upas an lOPin the Elll.The parti<;'utarcategoriesthey are looking for are: Statements and/or records ofconversations; Any documentation relatlngto BobKent, Aviation services Group, orN525lP; Any e-mails toorfrom Dr. Alan tong; Any e-mails.to orfr!lmAviation Sel'\iices Group; Any dDcuments relatingtoBirmingham Fligjlttenter(orallyone else) storing long's aircraft; Any financial documentation aboutthe flight; Anywritten agreements between Lot\g and Birmingham

**~lioht ,·,.~t** 

## ... Anv doooum,entvou pen;onally

**gE~net,~ted** abautthe

Thank you, Christopher Stevenson Attorney Office ofthe ChiefCounsel. Enforcement Division- Southern Team (404) 305·5208 1 GOVERNMENT EXHIBIT 

# p