### SERVED: IVIAY 1, 2013

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC

IN THE MATTER OF MARTINAIRE AVIATION, LLC DOCKETNo. [TO BE ASSIGNED] (Civil Penalty Action)
FDMS No. FAA-2013-0040 · ··;**~:** ,·**·~i ~**  !

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ORDERGRANTING MOTION FORPROTECTIVE ORDER r-,_r· lit"**Th~)f\f !.il)J-.,:~~**  

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Complainant Federal Aviation Administration ("Complainant" or "the agency") has filed a Motion for Protective Order ("Motion") under Rule 220(h) ofthe Rules ofPractice inFAA Civil Penalty Actions, 14 C.F.R. §13.220(h). The agency seeks the orderto 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 ofRespondent Martinaire Aviation, LLC ("Respondent" or "Martinaire") asserts that Complainant has not satisfied the requirements for invocation ofthe privilege. Complainant has turned over its Enforcement Investigative Report ("EIR"), butit 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 bythe agency's own sanctionpolicy (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. UnitedStates 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 ofembarrassment orretribution. Itfurthers an agency's legitimate need to protect its investigative and prosecutorial functions. Properly upholding the policy warrants that, except inthe most exigent circumstances, such recommendations be kept confidential. The Administrator has stated that the privilege could be overcome ifa respondent demonstrates a particularized need for disclosure which would outweighthe potential harm resulting to the agency from the disclosure.AmericanAirlines, FAA Order No. 89-0006 (December 21, 1989), pp. 7-8; ContinentalAirlines, FAA OrderNo. 90-0012 (April25, 1990), p. 9. In this matter, I find, Respondent has failed to meet that high threshold. Ithas not shown that its needs outweigh the compelling policy promoting confidentiality inpredecisiorial 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, thatthe decision in theAmericanAirlines case cited above arrived at a similarresult: the Administrator held that documents and informationregarding "selection ofthe sanction" which had beenrelied upon priorto the final determination ofthe sanction were protected from discovery bythe deliberative process privilege. 1 Complainant's Motion is hereby GRANTED.

Richard C. Goodwin Administrative LawJudge Attachment

- Service List

1At 8. Accord, Braniff, Inc., FAA DocketCP89CE0020, Order on Motion to Compel Discovery per administrative lawjudge 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 2Wl000 1
ONE. COPY Michael L. Dworkin,**Re,~JJondent** 's Counsel Michael L. Dworkin and Associates Law Offices 465 California Street, Suite 210 San Francisco, CA 94104-1808 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,AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2139 Attomey-'Advisor 202-366-5121 StaffAssistant 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.