InThe Matter Of: 

### SERVED: February 6, 2014 U.S. DEP ARTMENTOF TRANSPORTATION

OFFICE OFHEARINGS WASHINGTON, DC

DocketNo. FAA-2012-0477 LIBERTY FOUNDATION, INC. ) ) ) ) ) ) Case No. 2011 GL-03-0070 Respondent


### ORDERDENYING RESPONDENT'S MOTION .i!; : :i**:·~-**

.._,_;t'i .:



### FORCONTINUANCE, AND GRANTING/DENYING OTHERRELIEF

On January 14, 2014 an Order Reserving Ruling onMotion to Continue and Directing the Parties to File Supplemental Materials 

### was filed. OnJanuary 22, 2014 an Order Granting Respondent's Motion for a One-Week Extension ofTime 

### was filed. On February 5, 2014 the FAA filed the FAA's Supplemental Response concerning Motionto Continue ("Supplemental Response"). That same day, onFebruary 5, 2014 the Respondent filed Respondent's Response to the Court's OrderReserving Ruling onRespondent's Motionto Continue Trial Date, Etc ("Supplemental Materials"). 

### I. SHORT STATEMENT OF CASE STATUS This case

### was assignedto the undersigned Judge on July 6, 2012. It has been set for Hearingthree (3) times. The case 

### was originally set for hearing in May 2013. After venue was established and a newFAA attorney 

### was assigned to the case, the parties agreed in January 2013 to continue the May 2013 Hearing to November 2013. New Hearing Dates were setin November 2013, and a revised litigation procedural schedule

### was issued (1122/13 Order Granting Continuance ofMay 2013 Hearing to November 2013 and SettingNew Procedural Deadlines). OnJuly 31, 2013 the FAA filed an Amendment to Complaint. OnAugust 7, 2013 the Respondent filed multiple motions, including a motion to stay orrevise the scheduling order. The parties presented written materials onall the motions, with oral arguments presented atthe August 23, 2013 Motion Conference.On August 27,2013 an Order CancelingNovember 2013 Hearing and Granting/Denying Other Reliefwas filed. Among other things, this Ordercodifiedthe parties' agreement that newHearing dates should be scheduled for April22, 2014-April 25,2014 inAtlanta Georgia. OnDecember 27, 2013 the Respondent filed a Motionto Continue Trial Date ("Motion"), seeking a continuance ofthe April2014 Hearing onthe grounds that it's Executive Director and ChiefPilot, Mr. Raymond Fowler, would be unavailable for the period from April18, 2014 through December 6, 2014.

. OnJanuary 6, 2014 the FAAfiled its Response in Oppositionto Respondent's Motion to Continue Trial Date ("Response"). As noted earlierherein, on February 5, 2014 both parties filed supplemental materials pursuant to court direction.

II. 

### BRIEF DISCUSSIONAND ANALYSIS This discussion is limited to certain matters. Not all motions orarguments are discussed. However, all motions for relief, all documents submitted, and all party arguments have been fully considered. A. Service Members Civil ReliefAct- Not Applicable Itwas undisputed that

### Mr. Raymond Fowler, the Respondent's Executive Director and chiefpilot, is a Major inthe Alabama AirNational Guard. On or aboutNovember 1, 2013, Mr. Fowlerreceived deployment orders for the period ofApril18, 2014- December 6, 2014 (Motion, Exh. A). The Respondent statedthat Mr. Fowlerwouldbe overseas during his deployment (Motion, 1 ). The Respondent asserted in its 12/27/13 Motionthat the Service Members Civil ReliefAct (108 P.L. 189; 117 Stat. 2835) of2003 "may" be applicable. However, the Respondent conceded in its 2/5/14 Supplemental Materials thatneither Mr. Fowler northe Respondent could claim party protection under the Service Members Civil ReliefAct ("ReliefAct"). The FAAproperly pointed out in its 1113/14 Response that while the ReliefAct serves an importantpurpose, that purpose is to protect active service members who are parties in litigation. The ReliefAct is not designed to protect corporate entities, noris it a protective shield for service members who maybe identified as witnesses in civil litigation. There is no doubt that Mr. Fowler, as a member ofthe National Guard, is engaged in important national defense work wheneverhe is called into active duty. ButMr.
Page 2 of5Fowler is not a partyto this litigation, and the protections provided inthe ReliefAct do not apply. B. Mr. Fowler's Participation as a Witness and as a Representative In its 12/27/13 Motion, the Respondent alleged that "serious prejudice" would result ifa continuance was not granted (Motion, 3). Mr. Fowler's absence at the Hearing would deprive the Respondent ofMr. Fowler's experience and expertise, both as the Respondent's trial representative and as a witness. (Motion, 3). His presence was "required" in order for the Respondent to present a defense. (Motion, 3). The FAAdisagreed. Among other things, the FAA argued thatthe safety violations herein involved aircraft maintenance, about which Mr. Fowlerhad no demonstrated expertise (Response, 2). The FAA noted that Mr. Fowler's deposition had already been taken, and that such deposition could potentially be converted to a perpetuation deposition in lieu ofhis live testimony (Response, 2). The FAA also argued that the Respondent had failed to provide good reasons as to why someone else could not substitute as the representative at the Apri12014 Hearing in Mr. Fowler's absence. 

### i) Witness Testimony May Be Preserved Itis clearly the Respondent's preference to have Mr. Fowler available at its Hearing. That is understandable. However, in regards to Mr. Fowler's participation as a witness, the FAA is correctthat the Respondent has not shown that Mr. Fowler's live presence is "required" orthat the Respondent's case suffers substantial prejudice ifMr. Fowler does not present live testimony at the Hearing. Given the facts herein, it would appear preferred and prudentto preserve Mr. Fowler's testimony before he leaves for his tour ofduty. According to the Respondent, Mr. Fowler is leaving the country. He has been assigned to an Air Combat Commandto perform duty with a fighter squadron (Motion, Exh. A). While it is hoped that Mr. Fowler'stour ofduty is a benign experience, it is a fact that the United States is still involved inmultiple conflicts overseas - which have resulted in many injuries and deaths. Thus, using Mr. Fowler's discovery deposition as the FAA suggests, or allowing the Respondent to take and present a newperpetuation deposition, would address the very real concern ofensuringthat Mr. Fowler's testimony has beenpreservedbefore he leaves for military service. The FAA is correctthat Mr. Fowler's discovery deposition may be converted into a perpetuation deposition in lieu ofhis live testimony. In the alternative, a new perpetuation deposition could be taken prior to the April 2014 hearing date, at a time when Mr. Fowler is still in the country. The entire case need notbe continued in orderto preserve and present Mr. Fowler's testimony.

Page 3 of5

### ii) RespondentDoesNot SufferSubstantialPrejudice As for 

### Mr. Fowler's "required"presence as the Respondent's representative, the same concern- and others

- must be raised. Mr. Fowlerhas accepted a tour ofactive duty. According to the material submitted by the Respondent, Mr. Fowlerwill be participating in a military combat operation overseas. He will be unavailable from at least April18, 2014 through December 6, 2014. During that time and in

### Mr. Fowler's absence, this litigationremains active. Thus, the Respondent must still designate someone else to participate inthis litigation, and to consult/advise with Respondent's attorney on all matters that arise. Someone else from Liberty Foundation must appear as representative in Mr. Fowler's absence. As previously noted, there is no guarantee that Mr. Fowler will return. Inthe alternative, ifMr. Fowler experiences a benign deployment, there is no guarantee that Mr. Fowler's tour ofduty will end as ofDecember 6, 2014. Like many other soldiers, 

### Mr. Fowler may experience an extension ofhis tour ofduty- for anunspecifiedtime. He might also volunteer for additional duty. Ifthat occurs, this case could be in limbo for another year, ifnot longer. Even ifMr. Fowler does return- either onDecember 6, 2014 or another date- there is also no guarantee that he will return withthe same memory capacity or skill setthat he had when he left. In its Supplemental Materials, the Respondent asserted that 

### Mr. Fowler was "the only person associated with Liberty with a detailed knowledge ofits institutional history, it's B-17 aircraft, and the operations management." (Supplemental Materials,3). While this clearly demonstrates Mr. Fowler's dedication to the Respondent's organization, it does not follow that 

### Mr. Fowler is the onlyperson qualified to serve as the Respondent's representative atthe Hearing. Indeed, while Mr. Fowler is gone onmilitary deployment, someone else must assume his B-17 teaching duties, manage the Respondent's aviation operations, pilot the aircraft, oversee the aircraft maintenance, and serve as the Respondent's representative. 

### III. CONCLUSION While clearly the Respondent would prefer Mr. Fowler'spresence at the Hearing, both as a witness and as a representative, this court is not persuadedthat the Respondent would be substantiallyprejudiced by Mr. Fowler's absence. Mr. Fowler'stestimony may be preservedpriorto his deployment. During Mr. Fowler's military service, the Respondent must still find a replacement for Mr. Fowler, to continue handling Mr. Fowler's duties inhis absence. The Respondent has already had the benefit ofMr. Fowler'shelp and expertise since the inception ofthis litigation, to provide Respondent with guidance and oversight in the Respondent's preparation and defense against these safety violations. Indeed, Mr. Fowler may continue advising the Respondent and its counsel- and his potential replacement

- until he leaves for active duty onApril 18, 2014. The Respondent has not shown good cause to continue this case.

Page 4 of5-•

Pursuantto 14 C.F.R. §13.218, and after reviewing all relevant caselaw, decisions, regulation, statutory authority, motions, pleadings, andbeing fully advised;


### IT IS HEREBY ORDERED: 1. The Respondent's Motion to Continue the April2013 Hearing is denied. 2. The Hearing dates ofApril22, 2014 through April25, 2014 inAtlanta, Georgia are reconfirmed. 3. Because ofMr. Fowler's extended overseas military deployment, the Respondent shall take and preserve Mr. Fowler'stestimony out-of-order, priorto Mr. Fowler's April 18, 2014 deployment. This deposition testimony maythenbe proffered by the Respondent at the April2014 Hearing in lieu oflive testimony. 4. The parties shall worktogether to schedule and take Mr. Fowler'stestimony by perpetuation deposition. This deposition shall be scheduled and taken immediately (i.e., taken no later than March 7, 2014), in orderto give Mr. Fowler time to receive, review, correct, and approve the deposition transcript before he leaves for military duty onApril18, 2014. 5. Ifthere are any problems with scheduling the perpetuation deposition, the parties shall immediately notify the court ofsuch concerns (i.e., priorto the February 27, 2014 Motion Conference). 6. As an alternative to taking and proffering a newperpetuation deposition, the Respondent and the FAA may agree to convert Mr. Fowler's discovery deposition to a perpetuation deposition, for proffer bythe Respondent during the April 2014 Hearing.

Attachment: Service List

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FDMS No. FAA-2012-0477 (Civil Penalty Action) 

### SERVICE LIST- BY U.S. 

### MAIL 

### ORIGINAL & 

### ONE COPY Federal Aviation Administration1 

### 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000

Mr. Christopher Stevenson Complainant's Counsel 

### Office ofthe Regional Counsel P.O. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Stuart A. Goldstein Respondent's Counsel 

### Stuart A. Goldstein, P.A. 7300 North Kendall Drive, Suite 380 Miami, FL 33156 TEL: 305-670-1222 FPC(: 305-670-7065 Judge J.E. Sullivan

. U. S. AdministrativeLawJudge 

### Office ofHearings, M-20 U.S. Department ofTransportation 

### ONE COPY

1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2132 FPC(: 202-366-7536

1 Service was byU.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.