SERVED: IVIAY 1, 2013 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

MARTINAIRE AVIATION, LLC 

DOCKET No. [TO BE ASSIGNED] 

(Civil Penalty Action) 

FDMS No. FAA-2013-0040 · 

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ORDER GRANTING MOTION FOR PROTECTIVE ORDER 

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Complainant Federal Aviation Administration ("Complainant" or "the agency") has filed 

a Motion for Protective Order ("Motion") under Rule 220(h) of the Rules of Practice in FAA 

Civil Penalty Actions, 14 C.F.R. §13.220(h). The agency seeks the order to prevent discovery 

into how it arrived the amount it proposes to assess as a civil penalty. In support it invokes the 

deliberative process privilege. The objection of Respondent Martinaire Aviation, LLC 

("Respondent" or "Martinaire") asserts that Complainant has not satisfied the requirements for 

invocation of the privilege. Complainant has turned over its Enforcement Investigative Report 

("EIR"), but it contains so many redactions that "[t]his is hardly the full disclosure contemplated 

under the Rules," Martinaire contends. The proposed penalty, further, exceeds the maximum 

penalty amount suggested by the agency's own sanction policy (FAA Order 2150.3B), 

Respondent states; it is "gross[ly] disproportionate" to the amount suggested by the policy's 

tables. This suggests, Respondent concludes, that the penalty is without basis. 

I will grant Complainant's Motion. 
2 

The deliberative process privilege attaches to pre-decisional internal communications 

within governmental agencies. Senate of Puerto Rico v. United States Department of Justice, 823 

F.2d 574, 585 (D.C. Cir. 1987). The policy behind the privilege is to encourage agency 

employees to provide candid advice without fear of embarrassment or retribution. It furthers an 

agency's legitimate need to protect its investigative and prosecutorial functions. Properly 

upholding the policy warrants that, except in the most exigent circumstances, such 

recommendations be kept confidential. The Administrator has stated that the privilege could be 

overcome if a respondent demonstrates a particularized need for disclosure which would 

outweigh the potential harm resulting to the agency from the disclosure. American Airlines, FAA 

Order No. 89-0006 (December 21, 1989), pp. 7 -8; Continental Airlines, FAA Order No. 90-0012 

(April25, 1990), p. 9. 

In this matter, I find, Respondent has failed to meet that high threshold. It has not shown 

that its needs outweigh the compelling policy promoting confidentiality in predecisiorial agency 

discussions and deliberations. Respondent may probe and inquire into matters respecting the 

agency's suggested civil penalty without compromising the policy. I note, moreover, that the 

decision in the American Airlines case cited above arrived at a similar result: the Administrator 

held that documents and information regarding "selection of the sanction" which had been relied 

upon prior to the final determination of the sanction were protected from discovery by the 

deliberative process privilege. 1 

Complainant's Motion is hereby GRANTED. 

Richard C. Goodwin 

Administrative Law Judge 

Attachment - Service List 

1 At 8. Accord, Braniff, Inc., FAA Docket CP89CE0020, Order on Motion to Compel Discovery per administrative 

law judge Burton S. Kolko, October 13, 1989. 
3 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl0001 

ONE. COPY 

Michael L. Dworkin, Re,~JJondent 's Counsel 

Michael L. Dworkin and Associates Law Offices 

465 California Street, Suite 210 

San Francisco, CA 941 04-1808 

TEL: 415-411-2500 

FAX: 415-421-2560 

James Archier, Complainant's Counsel 

Agency Attorney, Office ofthe R.egional Counsel 

Southwest Region 

Federal Aviation Administration 

2601 Meacham Blvd., Suite 6E 

Fort Worth, 1X 76137 

TEL: 817-222-5074 

FAX: 817-222-5092 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E 11-31 0) 

Washington, DC 20590 

TEL: 202-366-2139 Attomey-'Advisor 

202-366-5121 Staff Assistant 

FAX: 202-366-7536 

FDMS No. FAA-2013-0040 

(Civil Penalty Action) 

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.