In The Matter Of: 

SERVED: February 6, 2014 

U.S. DEP ARTMENTOF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2012-0477 

LIBERTY 

FOUNDATION, INC. 

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Case No. 2011 GL-03-0070 

Respondent 

ORDER DENYING RESPONDENT'S MOTION 

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FOR CONTINUANCE, AND GRANTING/DENYING OTHER RELIEF 

On January 14, 2014 an Order Reserving Ruling on Motion to Continue and 

Directing the Parties to File Supplemental Materials was filed. 

On January 22, 2014 an Order Granting Respondent's Motion for a One-Week 

Extension of Time was filed. 

On February 5, 2014 the FAA filed the FAA's Supplemental Response concerning 

Motion to Continue ("Supplemental Response"). 

That same day, on February 5, 2014 the Respondent filed Respondent's Response 

to the Court's Order Reserving Ruling on Respondent's Motion to Continue Trial Date, 

Etc ("Supplemental Materials"). 

I. SHORT STATEMENT OF CASE STATUS 

This case was assigned to the undersigned Judge on July 6, 2012. It has been set 

for Hearing three (3) times. 

The case was originally set for hearing in May 2013. After venue was established 

and a new FAA 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 set in 

November 2013, and a revised litigation procedural schedule was issued (1122/13 Order 

Granting Continuance of May 2013 Hearing to November 2013 and Setting New 

Procedural Deadlines). 

On July 31, 2013 the FAA filed an Amendment to Complaint. On August 7, 2013 

the Respondent filed multiple motions, including a motion to stay or revise the 

scheduling order. The parties presented written materials on all the motions, with oral 

arguments presented at the August 23, 2013 Motion Conference. 
On August 27,2013 an Order Canceling November 2013 Hearing and 

Granting/Denying Other Relief was filed. Among other things, this Order codified the 

parties' agreement that new Hearing dates should be scheduled for April22, 2014-April 

25,2014 in Atlanta Georgia. 

On December 27, 2013 the Respondent filed a Motion to Continue Trial Date 

("Motion"), seeking a continuance of the April2014 Hearing on the grounds that it's 

Executive Director and Chief Pilot, Mr. Raymond Fowler, would be unavailable for the 

period from April18, 2014 through December 6, 2014. 

. On January 6, 2014 the FAA filed its Response in Opposition to Respondent's 

Motion to Continue Trial Date ("Response"). 

As noted earlier herein, on February 5, 2014 both parties filed supplemental 

materials pursuant to court direction. 

II. BRIEF DISCUSSION AND ANALYSIS 

This discussion is limited to certain matters. Not all motions or arguments are 

discussed. However, all motions for relief, all documents submitted, and all party 

arguments have been fully considered. 

A. Service Members Civil Relief Act- Not Applicable 

It was undisputed that Mr. Raymond Fowler, the Respondent's Executive Director 

and chief pilot, is a Major in the Alabama Air National Guard. On or about November 1, 

2013, Mr. Fowler received deployment orders for the period of April18, 2014-

December 6, 2014 (Motion, Exh. A). The Respondent stated that Mr. Fowler would be 

overseas during his deployment (Motion, 1 ). 

The Respondent asserted in its 12/27/13 Motion that the Service Members Civil 

Relief Act (108 P.L. 189; 117 Stat. 2835) of2003 "may" be applicable. 

However, the Respondent conceded in its 2/5/14 Supplemental Materials that neither Mr. 

Fowler nor the Respondent could claim party protection under the Service Members Civil 

Relief Act ("Relief Act"). 

The FAA properly pointed out in its 1113/14 Response that while the Relief Act 

serves an important purpose, that purpose is to protect active service members who are 

parties in litigation. The Relief Act is not designed to protect corporate entities, nor is it a 

protective shield for service members who may be identified as witnesses in civil 

litigation. 

There is no doubt that Mr. Fowler, as a member of the National Guard, is engaged 

in important national defense work whenever he is called into active duty. But Mr. 

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Fowler is not a party to this litigation, and the protections provided in the Relief Act 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 if a continuance was not granted (Motion, 3). Mr. Fowler's absence at the Hearing 

would deprive the Respondent of Mr. 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 FAA disagreed. Among other things, the FAA argued that the safety 

violations herein involved aircraft maintenance, about which Mr. Fowler had 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 of his 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 

It is 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 correct that the Respondent has not shown that Mr. Fowler's live 

presence is "required" or that the Respondent's case suffers substantial prejudice if Mr. 

Fowler does not present live testimony at the Hearing. 

Given the facts herein, it would appear preferred and prudent to preserve Mr. 

Fowler's testimony before he leaves for his tour of duty. According to the Respondent, 

Mr. Fowler is leaving the country. He has been assigned to an Air Combat Command to 

perform duty with a fighter squadron (Motion, Exh. A). While it is hoped that Mr. 

Fowler's tour of duty is a benign experience, it is a fact that the United States is still 

involved in multiple 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 of ensuring that Mr. Fowler's testimony has been preserved before he leaves 

for military service. 

The FAA is correct that Mr. Fowler's discovery deposition may be converted into 

a perpetuation deposition in lieu of his 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 not be continued in order to 

preserve and present Mr. Fowler's testimony. 

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ii) Respondent Does Not Suffer Substantial Prejudice 

As for Mr. Fowler's "required" presence as the Respondent's representative, the 

same concern- and others - must be raised. Mr. Fowler has accepted a tour of active 

duty. According to the material submitted by the Respondent, Mr. Fowler will 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 litigation remains active. Thus, the Respondent must still designate someone else to 

participate in this 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. In the 

alternative, if Mr. Fowler experiences a benign deployment, there is no guarantee that 

Mr. Fowler's tour of duty will end as of December 6, 2014. Like many other soldiers, Mr. 

Fowler may experience an extension of his tour of duty- for an unspecified time. He 

might also volunteer for additional duty. If that occurs, this case could be in limbo for 

another year, if not longer. Even if Mr. Fowler does return- either on December 6, 2014 

or another date- there is also no guarantee that he will return with the same memory 

capacity or skill set that 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 of its 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 only person qualified to serve as the Respondent's 

representative at the Hearing. Indeed, while Mr. Fowler is gone on military 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's presence at the Hearing, 

both as a witness and as a representative, this court is not persuaded that the Respondent 

would be substantially prejudiced by Mr. Fowler's absence. Mr. Fowler's testimony may 

be preserved prior to 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 in his absence. The Respondent has already had the benefit of Mr. 

Fowler's help and expertise since the inception of this 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 on April 18, 

2014. The Respondent has not shown good cause to continue this case. 

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Pursuant to 14 C.F .R. § 13.218, and after reviewing all relevant case law, 

decisions, regulation, statutory authority, motions, pleadings, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The Respondent's Motion to Continue the April2013 Hearing is denied. 

2. The Hearing dates of April22, 2014 through April25, 2014 in Atlanta, Georgia 

are reconfirmed. 

3. Because of Mr. Fowler's extended overseas military deployment, the Respondent 

shall take and preserve Mr. Fowler's testimony out-of-order, prior to Mr. Fowler's 

April 18, 2014 deployment. This deposition testimony may then be proffered by 

the Respondent at the April2014 Hearing in lieu of live testimony. 

4. The parties shall work together to schedule and take Mr. Fowler's testimony by 

perpetuation deposition. This deposition shall be scheduled and taken 

immediately (i.e., taken no later than March 7, 2014), in order to give Mr. Fowler 

time to receive, review, correct, and approve the deposition transcript before he 

leaves for military duty on April18, 2014. 

5. If there are any problems with scheduling the perpetuation deposition, the parties 

shall immediately notify the court of such concerns (i.e., prior to the February 27, 

2014 Motion Conference). 

6. As an alternative to taking and proffering a new perpetuation deposition, the 

Respondent and the FAA may agree to convert Mr. Fowler's discovery deposition 

to a perpetuation deposition, for proffer by the Respondent during the April 2014 

Hearing. 

Attachment: Service List 

Page 5 ofS 
.. 

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 of the 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. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

ONE COPY 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-2132 

FPC(: 202-366-7536 

1 Service was by U.S. Mail. For service in person or by 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.