UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

IN THE MATTER OF: 

TANGO AIR, INC. d/b/a 

SCHUBACH AVIATION 

Respondent 

Tuesday, 

April 12, 2016 

FDMS No. 

FAA-2015-337 

1 

2 7 2016 

The teleconference convened, pursuant 

to notice, at 1:30 p.m. 

BEFORE: 

THE HONORABLE J.E. SULLIVAN, 

Administrative Law Judge 

ORIGINAL 

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APPEARANCES: 

On Behalf of the Complainant: 

ROBERT SPITZER, ESQ. 

of: Office of the Regional Counsel, ANM-7 

Federal Aviation Administration 

Enforcement Division, Western Team 

1601 Lind Avenue SW 

Renton, WA 98057 

spitzer®faa.gov 

On Behalf of the Respondent: 

MICHAEL L. DWORKIN, ESQ. 

of: Michael L. Dworkin and Associates 

465 California Street, Suite 210 

San Francisco, CA 94104 

877-217-9214 

(202) 234-4433 

law®avialex.com 

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1 P-R-0-C-E-E-D-I-N-G-S 

2 1:32:58 PM 

3 JUDGE SULLIVAN: Okay. We are on the 

4 record in the matter of Tango Air, Inc. doing 

5 business as Schubach Aviation. This is docket 

6 number FAA-2015-3317. Today is Tuesday, April 

7 12, 2016 and the parties have convened by 

8 telephone for a litigation scheduling conference. 

9 The Federal Aviation Administration, 

10 which I will here and after refer to as the FAA, 

11 is represented by its attorney of record Mr. 

12 Robert Spitzer. 

13 The Respondent, who I have already 

14 identified in the reading of the docket title is 

15 represented by its attorney of record, Mr. 

16 Michael L. Dworkin. Also present is the court 

17 reporter, Ms. Colleen Herbert from Neil R. Gross 

18 & Company, a court reporting firm. Assisting her 

19 and sitting in partially as an observer is Mr. 

20 Tony Porreco. So, good afternoon to you all. 

21 MISTER SPITZER: Good afternoon, your 

22 honor. 

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1 MISTER DWORKIN: Good afternoon, your 

2 honor. 

3 JUDGE SULLIVAN: What I'm going to do 

4 is just briefly identify what's occurred since 

5 the last court order that leads us to today's 

6 proceeding. On February 12, 2 o 16, the court 

7 issued an order setting a Rule 16 litigation 

8 scheduling conference and directing the parties 

9 to confer and file a Rule 26(f) proposed 

10 discovery plan. Thereafter on, let's see. I'm 

11 just looking at my notes. 

12 On April 4, 2016, the parties filed a 

13 joint status report pursuant to order setting 

14 litigation scheduling conference and directing 

15 parties to file proposed discovery plan. 

16 In addition, I' 11 simply note that 

17 there was, prior to this time, a filing on 

18 February 19, 2016 from the Respondent that 

19 included some propounded discussion of discovery 

20 and that same day on February 19, 2016 there was 

21 an email informally provided to both counsel in 

22 this case by the attorney advisor from the office 

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1 of hearing working on this case, Mr. Cody L. 

2 Smith, just reminding the parties that discovery 

3 did not need to be served upon the court absent a 

4 motion regarding such discovery. 

5 So, we are here today to talk a little 

6 bit about a proposed plan and what I'd like to do 

7 is just talk a little bit about some of the 

8 material that you submitted on April 4, 2016. 

9 And I'm going to start the question addressing 

' 10 them to Mr. Spitzer, he's the prosecuting 

11 attorney in this action. Mr. Spitzer, as I 

12 understand it, the parties want to have a hearing 

13 in San Diego, California. And I'm looking at 

14 page one of the three page document when I say 

15 that. 

16 MISTER SPITZER: Yes, that's correct, 

17 your honor. 

18 JUDGE SULLIVAN: Okay. When you say 

19 that the hearing may take two to three days, are 

20 you including any and all defense witnesses in 

21 time for the defense case? 

22 

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MISTER SPITZER: Yes, 

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1 That's, both of the parties have agreed that 

2 three days is appropriate. 

3 JUDGE SULLIVAN: Okay. You have 

4 indicated and as the record reflects the 

5 Respondent has already initiated discovery as of 

6 February 19, 2016 and as of the date of the joint 

7 order or the joint status report of April 4, 

8 2016. The FAA planned to initiate discovery as 

9 well. Can you tell me if the FAA has, in fact, 

10 by today's date, started its own discovery 

11 process? 

12 MISTER SPITZER: It hasn't, your honor. 

13 But we anticipate doing that by this week. 

14 JUDGE SULLIVAN: Okay. Typically what 

15 I do in my litigation scheduling orders is set a 

16 due date for the parties to exchange, 

17 voluntarily, information that's covered under 

18 Rule 26(a). My materials here, have you and your 

19 friend across the aisle done any of that kind of 

20 voluntary exchange yet? 

21 MISTER SPITZER: Your honor, the Agency 

22 has responded to the Respondent's request for 

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1 discovery which in substantive part requesting 

2 information that would have been released 

3 pursuant to 26(a) 

4 JUDGE SULLIVAN: Okay, thank you. 

5 Let's talk a little bit about the discovery 

6 responses and the depositions you indicated might 

7 be forthcoming. This is actually a fairly scant 

8 status report because it doesn't include very 

9 much information for the court to get an idea 

10 where the parties are and where you want to be. 

11 So, let's talk first about 

12 interrogatories and discovery problems. So are 

13 you planning to submit any types of, or propound 

14 any kinds of interrogatories to the Respondent? 

15 And if so, if you have an anticipated deadline 

16 for doing that? 

17 MISTER SPITZER: Yes, your honor. We'll 

18 give the customary thirty days. 

19 JUDGE SULLIVAN: When do you plan to do 

20 that? 

21 MISTER SPITZER: Within the week, your 

22 honor. 

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1 JUDGE SULLIVAN: Okay. And then let's 

2 just say for the sake of argument that there's a 

3 discovery dispute, just on the interrogatory. 

4 And you want to file a motion of some sort. 

5 You've indicated here that you want to have all 

6 depositions taken and discovery concluded on or 

7 around November 30, 2016. Which looks like it 

8 could take into account that type of time line. 

9 Typically what I do is I set a time 

10 limit of about ten days after service of a 

11 disputed discovery request for filing a motion to 

12 limit discovery and I also set the same type of 

13 ten day time period for motions to compel 

14 discovery if you receive a deficient response or 

15 no response. Do you have any objection to the 

16 court setting that standard default time or would 

17 you like to have a different kind of time frame? 

18 MISTER SPITZER: No objections to the 

19 ten days, your honor. 

20 JUDGE SULLIVAN: Okay. In the new, the 

21 modification of the civil rule that occurred in 

22 December 2015, there was a strong recommendation 

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1 and changed the rules about the court offering to 

2 the parties an opportunity to have a pre-motion 

3 conference of some type. On discovery disputes, 

4 prior to the parties needing to file a formal 

5 motion, do you take a position about that? 

6 MISTER SPITZER: No, your honor. The 

7 Agency has no posit ion on whether such a 

8 pre-discovery conference would be required. 

9 JUDGE SULLIVAN: Well, then let me ask 

10 you this. Have you had a chance to utilize that 

11 kind of process in any of your other cases, 

12 either, say at the district court level? 

13 MISTER SPITZER: Your honor, we 

14 typically do a paper motions practice with 

15 respect to most of our cases when we have 

16 discovery disputes. 

17 JUDGE SULLIVAN: Okay. So nobody has 

18 offered you this opportunity. 

19 MISTER SPITZER: No, your honor. 

20 JUDGE SULLIVAN: Okay. Then I'm going 

21 to switch over to counsel for the Respondent and 

22 ask a little bit about that to you, Mr. Dworkin. 

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1 Have you had a chance to utilize that particular 

2 option that the court is talking about? 

3 MISTER DWORKIN: I have not, your 

4 honor. In most cases in my forty-some odd years 

5 of practicing law, I have always been able, or 

6 generally been able to resolve discovery disputes 

7 with opposing counsel. 

8 JUDGE SULLIVAN: Okay, well that speaks 

9 very highly of you. My question, and I'm asking 

10 both of you about this because it looks to me 

11 like it may be a good idea. And I certainly have 

12 been reading a lot about it in judicial journals 

13 and other materials. And I'm happy to add that 

14 to your particular litigation plan if you would 

15 like to try it. If you don't want to try it, 

16 that's fine. I won't include it. But it's 

17 supposed to be something that would allow you to 

18 potentially avoid the greater time and expense of 

19 filing a motion after say, a good faith effort to 

20 resolve it by yourselves. 

21 MISTER DWORKIN: Respondent would have 

22 no problem to it being included. 

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1 JUDGE SULLIVAN: Okay. Mr. Spitzer, 

2 what's your thought about that? 

3 MISTER SPITZER: No objection from the 

4 Administrator, your honor, from the Agency. 

5 JUDGE SULLIVAN: Okay. Okay. And just 

6 to remind you, you do not remind the Administrator 

7 in these kinds of hearings because the 

8 Administrator has been separated. 

9 MISTER SPITZER: Yes, your honor. 

10 JUDGE SULLIVAN: Okay. Thank you. So 

11 I'll include that, just in your preliminary 

12 materials and I'll tell you just now that the way 

13 to do that, if you need to schedule something 

14 without filing a motion, is to contact my judicial 

15 assistant and just tell her to put you on my 

16 calendar. With the understanding that you're 

17 invoking the right to have a short pre-motion 

18 conference to try and resolve a discovery dispute. 

19 And we'll see how it goes. You may not use it at 

20 all, but I thought I would give you the option and 

21 it really is, the great saving device that I've 

22 read about. 

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1 Back to you, Mr. Spitzer. You've had 

2 a variety of dates that you've identified where 

3 the parties are not available. Have you and your 

4 friend across the aisle talked or considered the 

5 possibility of filing any kinds of dispositive 

6 motions prior to a hearing date? 

7 MISTER SPITZER: I don't believe the 

8 Agency has any intention of filing dispositive 

9 motions in this case. 

10 JUDGE SULLIVAN: Okay. 

11 MISTER DWORKIN: Neither does 

12 Respondent, your honor. 

13 JUDGE SULLIVAN: Okay. Have you talked 

14 at all about a due date or disclosing who your 

15 expert witnesses might be? So that you can depose 

16 them prior to November 30, 2016? Mr. Spitzer? 

17 MISTER SPITZER: No, we haven't your 

18 honor. 

19 JUDGE SULLIVAN: Do you intend to call 

20 any FAA inspectors or any other types of expert 

21 witnesses in this case? 

22 MISTER SPITZER: Yes, most likely, your 

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1 honor. 

2 JUDGE SULLIVAN: Okay. Mr. Dworkin. 

3 Same question to you, sir. 

4 MISTER DWORKIN: I may very well take 

5 the deposition of the FAA's designated experts. 

6 In terms of Respondent having any experts at this 

7 time, we have not retained any experts nor do I, 

8 at least as I sit here right now, envision the 

9 need for any of our own experts. 

10 JUDGE SULLIVAN: Okay. You've indicated 

11 that there's a blackout time for counsel between 

12 October 31 and November 4, 2016. And that 

13 depositions, including experts, would need to be 

14 concluded by November 30, 2016. And that 

15 conclusion date in my understanding would include 

16 also getting a copy of the deposition itself, and 

17 any follow-up that occurs after the deposition has 

18 been taken. So knowing that, or if that is your 

19 intent I should say, at what point do you think 

20 it's reasonable to require the parties to provide 

21 each other with expert witness identification and 

22 any reports that might be attached to that 

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1 disclosure? 

2 MISTER DWORKIN: Well, I would hope that 

3 the experts would be disclosed in connection with 

4 discovery. Now, we've received the FAA's 

5 discovery responses and to the best of my 

6 recollection, you have not designated any experts. 

7 MISTER SPITZER: No, not yet. 

8 MISTER DWORKIN: Yes. 

9 JUDGE SULLIVAN: And I note that there 

10 was call between the parties, I'll accept that for 

11 today' s proceedings. But in the future, Mr. 

12 Dworkin. If you can address your comments to me? 

13 MISTER DWORKIN: Yes. 

14 JUDGE SULLIVAN: So there ' s been no 

15 designation yet of any experts. Mr. Dworkin, 

16 staying with you, when do you think it would be 

17 reasonable to obtain that information? 

18 MISTER DWORKIN: Probably we have just 

19 received the FAA's response to our discovery. 

20 Literally, I received them last week and I was on 

21 the road. And I'm on the road this week. But I 

22 plan on requesting expert information from the FAA 

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1 within the next couple of weeks. 

2 JUDGE SULLIVAN: Okay. So it's your 

3 preference not to identify any expert closure 

4 deadline at this time? 

5 MISTER DWORKIN: Yes. 

6 JUDGE SULLIVAN: Okay, Mr. Spitzer. Is 

7 that your preference as well? 

8 MISTER SPITZER: Yes, your honor. 

9 JUDGE SULLIVAN: Okay. Let's talk about 

10 the hearing date. You have indicated that you are 

11 hoping to have a hearing, sometime apparently 

12 after November 30, 2016. And I'm going to look at 

13 my calendar and give you an idea of when that 

14 could actually occur. I'm way too far into 2017. 

15 I just had a case settle today, so I think I have 

16 some time open that I didn't have before. How 

17 about the week of March 13th through the 17th, 

18 2017? Mr. Spitzer, starting with you? 

19 MISTER SPITZER: Works for the Agency, 

20 your honor. 

21 JUDGE SULLIVAN: And Mr. Dworkin? 

22 

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1 this point in time. 

2 JUDGE SULLIVAN: Okay. If the hearing 

3 is for three days, we could set it for Tuesday the 

4 14th, Wednesday the 15th, an Thursday the 16th, 

5 leaving Monday the 13th and Friday the 17th as 

6 travel days. Mr. Spitzer, would that work for 

7 you? 

8 MISTER SPITZER: Yes it would, your 

9 honor. 

10 JUDGE SULLIVAN: And Mr. Dworkin? 

11 MISTER DWORKIN: Yes, your honor. 

12 JUDGE SULLIVAN: And so why don't we 

13 plan on that. And I always have a pre-hearing 

14 conference prior to the trial date because I do 

15 have cases where the parties are close to settling 

16 and it really helps me to know that, so that my 

17 staff can prioritize what they're doing on the 

18 case. So let's look at the pre-hearing status 

19 conference about two months before March 12th. 

20 I'm looking at the week of January 15, 2017. 

21 So Mr. Spitzer, starting with you, I 

22 have Wednesday the 18th and Thursday the 19th and 

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1 Friday the 20th all open for a one-hour or less 

2 than one hour status conference. Do you have any 

3 time open those three days? 

4 MISTER SPITZER: I have no conflict on 

5 any of those days, your honor. 

6 JUDGE SULLIVAN: Same question to you, 

7 Mr. Dworkin. 

8 MISTER DWORKIN: Yes, your honor. I 

9 would prefer that it be Wednesday, the 18th if at 

10 all possible. 

11 JUDGE SULLIVAN: And you are both on the 

12 west coast, are you both not? Mr. Spitzer? 

13 MISTER SPITZER: Yes. 

14 JUDGE SULLIVAN: And Mr. Dworkin? 

15 MISTER DWORKIN: Yes. 

16 JUDGE SULLIVAN: So let me think about 

17 that. How about using the same time as today, 

18 1:30, on Wednesday January 18th? Would that work 

19 for you, Mr. Spitzer? 

20 MISTER SPITZER: Yes, your honor. 

21 JUDGE SULLIVAN: Okay, and Mr. Dworkin? 

22 MISTER DWORKIN: Yes, your honor. 

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1 JUDGE SULLIVAN: Okay. Mr. Spitzer, 

2 starting with you. Let's go to, let's talk about 

3 a list of witnesses in exchange of exhibits for a 

4 deadline period. How far in advance of the 

5 hearing do you want to have those done? 

6 MISTER SPITZER: Any time two months 

7 prior to the hearing would be acceptable for the 

8 Agency. 

9 JUDGE SULLIVAN: Okay and Mr. Dworkin, 

10 same question? 

11 MISTER DWORKIN: I concur with Mr. 

12 Spitzer. As a matter of fact, perhaps maybe the 

13 best thing would be to have disclosure of 

14 witnesses and exhibits maybe just prior to the 

15 pre-hearing conference. 

16 JUDGE SULLIVAN: May I suggest something 

17 a little different and say how about, a week 

18 after? And the reason I say that is because if 

19 you're close to settlement, it might be helpful to 

20 have the pre-hearing status conference first. But 

21 I'm happy to do it either way. Mr. Spitzer, any 

22 thoughts? 

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1 MISTER SPITZER: Yeah, I agree with 

2 that, your honor. I think having it after the 

3 pre-hearing status conference would be helpful. 

4 JUDGE SULLIVAN: Mr. Dworkin, any 

5 consideration to that? 

6 MISTER DWORKIN: No objection to that, 

7 your honor . 

8 JUDGE SULLIVAN: Okay. Then let's plan 

9 on having, let's say Friday January 27, 2017 as 

10 the deadline for exchanging witness lists and 

11 exhibits. And I' 11 have in the pre-hearing status 

12 - I'm sorry. I'll have in the litigation order 

13 what that all entails. And I typically use that 

14 same date for the filing of any written 

15 stipulation or agreed motions in limine if you 

16 want to make them. That would be January 27, 2017 

17 as well. About six months, or not six months. 

18 About sixty days prior to the hearing 

19 is when I'll send out the information about where 

20 the hearing is going to be in San Diego. I know 

21 that Judge Goodwin has previously covered that 

22 area and I'm just handling this particular case in 

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1 part because he is now gone. 

2 But typically what my staff and I do is 

3 we look first to the us Tax Court which is housed 

4 in the us District Court to see if they have a 

5 space available. If they don't, we'll go next to 

6 the US District Court and see if we can borrow one 

7 of the District Court judges or magistrates' 

8 courtrooms. And if that doesn't work, we sometimes 

9 will try the state trial court and see if they 

10 have a courtroom available. 

11 If we run out of luck on all those 

12 different options, I'll be talking to you about 

13 potentially changing the venue. To someplace 

14 nearby where we have been able to find a 

15 courtroom. But typically, we were able to find 

16 something with those three different options. I 

17 will also include in the order setting litigation 

18 date, information about how to bring exhibits to 

19 the hearing. 

20 What to do, Mr. Dworkin, if you for 

21 some reason need to withdraw and how to do it, how 

22 to request modification of the order. How to get 

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1 on my calendar for other matters. For example, if 

2 you decide, excuse me, that you want to file a 

3 summary judgment motion and you don't have it in 

4 your litigation order. But you think that 

5 something, your client would benefit from how to 

6 go about doing that and setting up those deadlines 

7 and dates. 

8 With that, it's my understanding that 

9 counsel are together in the same room today. Mr. 

10 Spitzer, is that correct? 

11 MISTER SPITZER: It is. 

12 JUDGE SULLIVAN: It's an amazing 

13 coincidence. So it's delightful that you're both 

14 together and have a chance to meet each other in 

15 person before trying the case. Mr. Spitzer, on 

16 behalf of your client, is there anything we need 

17 to address for you prior to going off the record 

18 today? 

19 MISTER SPITZER: No, your honor. 

2 0 JUDGE SULLIVAN: Okay, Mr. Dworkin. Same 

21 question to you, sir. 

22 MISTER DWORKIN: Nothing, your honor. 

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1 JUDGE SULLIVAN: Okay, then I'll thank 

2 you both very much for your time and attention 

3 today. I'll be issuing a litigation order either 

4 this afternoon or tomorrow morning at the latest. 

5 Good luck in all of your discovery exchange. I 

6 look forward to seeing you early next year. If 

7 the case goes to trial. With that, we can go off 

8 the record and I wish you all a good day and thank 

9 you. 

10 MISTER SPITZER: Thank you, your honor. 

11 MISTER DWORKIN: Thank you, your honor. 

12 JUDGE SULLIVAN: Okay. Goodbye. 

13 (Whereupon, the above-entitled matter 

14 went off the record at 1:55 p.m.) 

15 

16 

17 

18 

19 

20 

21 

22 

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(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC 

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Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www. nealrgross.com 
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Neal R. Gross and Co., Inc. 

Washington DC 

26 

www.nealrgross.com 
C E R T I F I C A T E 

This is to certify that the foregoing transcript 

In the matter of: Tango Air, Inc. dba 

Schubach Aviation 

Before: DOT/OH 

Date: 04-12-16 

Place: teleconference 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

Court Reporter 

27 

(202) 2344433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE .. N.W. 

WASHINGTON, D.C. 20005·3701 www.nealrgross.com