UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

IN THE MATTER OF: FDMS No. 1

BIRMINGHAM FLIGHT CENTER, LLC FAA-2014-0867 Respondent Wednesday, April 13, 2016

The teleconference convened, pursuant to notice, at 10:30 a.m. BEFORE: THE HONORABLE J.E. SULLIVAN, Administrative Law Judge

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NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-44332 APPEARANCES: On Behalf of the Complainant: CHRISTOPHER R. STEVENSON, ESQ. of: Federal Aviation Administration Office of the Regional Counsel, AS0-7 Southern Region 1701 Columbia Avenue College Park, Georgia 30337 404-305-5200 404-305-5223 (Fax) On Behalf of the Respondent: PAUL R. BORTH, ESQ. of: Barnett & Borth, LLC

(202) 234-4433 800 Waukegan Road, Suite 200 Glenview, Illinois 60025-4387 847-724-5520 815-356-7042 (Fax) prb®barnettlegal.com

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1 P-R-0-C-E-E-D-I-N-G-S 2 10:28 a.m. 3 ADMIN. JUDGE SULLIVAN: We're on the 4 record in the matter of Birmingham Flight Center, 5 Inc. That's docket number FAA-2014-0867. Today 6 is Wednesday, April 13, 2016, and the parties 7 have convened by telephone for a motion 8 conference. The Federal Aviation Administration, 9 which I'll hereinafter refer to as the FAA, is 10 represented by its attorney of record, Mr. 11 Christopher R. Stevenson. 12 The Respondent, Birmingham Flight 13 Center, Inc., is represented by its attorney of 14 record, Mr. Paul R. Borth. Also present at the 15 Court's hearing room is Mr. Cody L. Smith, an 16 attorney advisor in this Court administration, 17 and he is sitting in as an observer only. Good 18 morning to you all. 19 MR. STEVENSON: Good morning, Judge. 20 ADMIN. JUDGE SULLIVAN: I will simply 21 note that the last order that was issued in this 22 case was on March 30, 2016. It was an order

(202) 234-4433 NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-44334 1 setting motion conference for today's proceeding. 2 This particular conference was set up for 3 discussion of the Respondent's motion for 4 alternate sanctions, since there was a February 5 22, 2016 order denying Respondent's motion to 6 dismiss and reserving ruling on other sanctions. 7 We have limited time, as you know, and there's a 8 great deal of material to get through. What I 9 thought I would do is talk to each of you a 10 little bit about certain questions that I have, 11 and hopefully we can have a full discussion today 12 about those questions, so that I can finish 13 issuing orders on this particular motion. 14 To do that, I want to start with 15 Respondent's counsel. Mr. Borth, in your 16 original motion, which, as we know, was filed 17 with the Court on November 18, 2015, you had 18 primarily addressed the issue of dismissal, which 19 the Court has denied. In the motion that you 20 filed, you also requested that the Court consider 21 any alternate motions that it deemed appropriate, 22 and I'm referring specifically to Page 19 and 20

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-44335 1 of the motion. 2 MR. BORTH: Okay. 3 ADMIN. JUDGE SULLIVAN: As you and Mr. 4 Stevenson are no doubt aware, there are some 5 limitations in what sanctions the Court can grant 6 under the Rules of Practice, but I'm going to 7 focus you in on the sanctions that are listed 8 under 14 C.F.R. Section 13.217F and 14 C.F.R. 9 Section 13.220N, as in Nancy, in part because the 10 sanctions under both are exactly the same, and 11 you had sanctions under all the Rules of 12 Practice, so I thought it might be easiest to 13 start there. 14 MR. BORTH: Okay. 15 MR. STEVENSON: I apologize, Your 16 Honor. This is Mr. Stevenson. I'm getting some 17 sort of noise in the background. It was making 18 it hard for me to hear you. I'm not sure if 19 anyone else was hearing that. 20 ADMIN. JUDGE SULLIVAN: I was hearing 21 it, too, Mr. Stevenson, and I was just about to 22 inquire. Mr. Borth, is that coming from you, by

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-44336 1 any chance? 2 MR. BORTH: I don't think so, Judge. 3 I'm not hearing anything, and I don't think 4 anything is being generated from my office that 5 would make a noise like what you're describing. 6 I don't know. 7 ADMIN. JUDGE SULLIVAN: That leaves us 8 with the court reporter. Mr. Court Reporter, if 9 you're rolling or doing something with your 10 equipment, can you finish doing that now? 11 COURT REPORTER: No, that wasn't on 12 this end, sorry. 13 ADMIN. JUDGE SULLIVAN: If we hear 14 anything more, or if any one of us hears 15 anything, please interrupt the Court or the 16 speaker, and we'll try and take care of it and 17 make sure it doesn't happen again. Mr. 18 Stevenson, turning to you, did you miss anything 19 that the Court said in its setup just before you 20 talked about the noise disruption? 21 MR. STEVENSON: I'm not sure. I heard 22 you reference 14 C.P.R. Sections 13.217F and

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-44337 1 220N, and then I think you were explaining why 2 you were referencing those, but that

-- whatever 3 explanation came after those citations I was not 4 able to hear. 5 ADMIN. JUDGE SULLIVAN: Okay, I can 6 repeat that easily. Essentially, I thought it 7 would be best to start with those two sections 8 because the sanctions that are listed are 9 identical. We can address just those sanctions, 10 in terms of what the Respondent thinks might be 11 appropriate, in lieu of dismissal. Mr. Borth, I 12 know we didn't talk about this, or I didn't give 13 you a heads up about it, but I wanted to check 14 and see if you are able to talk about that this 15 morning? 16 MR. BORTH: Yes, to a certain degree 17 I am, Judge. You're correct. I wasn't quite 18 sure what would transpire in this hearing or 19 whether this was a fact-finding situation for you 20 or full argument on the motions. I really wasn't 21 22 quite certain. I apologize. ADMIN. JUDGE SULLIVAN: I know that I

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1 did not make that clear. It's something that we 2 can talk about as part of this conference today. 3 I would certainly be willing to identify for both 4 of you all of the questions that I have for both 5 of you and give you a short time to think about 6 that, and then reconvene, if that's preferable. 7 MR. BORTH: Judge, that will be 8 preferable to me. That would be very helpful. I 9 think it would make for a more meaningful 10 discussion if I know your questions, and then I 11 can have a little time to address those 12 internally, and then if we could reconvene and I 13 can address your questions point by point, to the 14 best of my ability, I would appreciate that. 15 ADMIN. JUDGE SULLIVAN: Okay. Mr. 16 Stevenson, what's your thought on that? 17 MR. STEVENSON: It's easy for me to 18 say, at this point, that I'm okay going ahead 19 because the Court hasn't addressed anything to me 20 yet that I would have to respond to, but I can 21 understand why Mr. Borth would want to have some 22 time to consider that before responding.

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1 ADMIN. JUDGE SULLIVAN: Okay. Do you 2 have any objection to a general discussion of 3 some of the Court's inquiry, and then reconvening 4 at a mutually convenient time, say next week or 5 the week after? 6 MR. STEVENSON: I have no objection to 7 that. 8 ADMIN. JUDGE SULLIVAN: Okay. Then 9 let me talk a little bit about what I think the 10 Court needs from the parties in this alternate 11 motion for sanctions, and then give you a chance 12 to tell me what you think is reasonable to do, in 13 terms of you sitting and thinking about these 14 questions, and then reconvening. You may want to 15 simply do oral argument on them, which is fine 16 from the Court's perspective, or you may want to 17 put together very short materials if you feel the 18 need. Obviously, both of you have presented a 19 variety of materials already that are fairly 20 comprehensive, and the Court has gone over them 21 multiple times. Let me just identify, in 22 general, some of the concerns I have, and some of

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1 the questions that I think the parties should 2 address on behalf of their client before I make a 3 ruling on this. 4 I'll start with the Movant, this 5 particular motion, Mr. Borth. I think it would 6 be very helpful for you to identify for the 7 Court, either under the two regulations that I've 8 already talked with you about, or the sanctions 9 that are listed under 14 C.F.R. Section 13.207, 10 Subsection C, what you think is actually 11 appropriate as an alternate sanction from 12 dismissal in this particular case and why. 13 MR. BORTH: Okay. 14 ADMIN. JUDGE SULLIVAN: In all of 15 these sanction sections they do specify that the 16 sanction should be limited to the extent of the 17 problem, if you will. This Court has a certain 18 idea of what sanctions might be appropriate to 19 impose, but I want to hear from the Movant about 20 what the Movant thinks is appropriate, based on 21 the evidence before the Court. 22

(202) 234-4433 MR. BORTH: Okay.

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443311 1 ADMIN. JUDGE SULLIVAN: In addition, 2 there has been what I would consider to be three 3 separate time periods that are involved in the 4 Respondent's allegation that the FAA has engaged 5 in a persistent, repeated, and unconscionable 6 behavior during this action. 7 And those three periods, I think, have 8 meaning, particularly given the response that has 9 been filed by the FAA. So I will identify what I 10 think are those three periods, and then I'm going 11 to be talking to you both about them. 12 It appears that there is, No. 1, an 13 initial enforcement investigative period; No. 2, 14 a period of time during formal enforcement 15 proceedings, and I date that from the notice of 16 proposed civil penalty, to the point that the 17 case has been referred to the Office of Hearings 18 for adjudication, and I'll talk a little bit 19 about the specific dates that I see in the 20 materials in just a moment. The third and final 21 period of time is during the administrative 22 adjudication of the action before this Court. If

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443312 1 we're looking at those three distinct time 2 periods

-- and it may be you disagree with me, 3 but I'm going to set up the discussion, at least 4 for now, with those three time periods the 5 first time period, which is the initial 6 enforcement investigation period, appears to run 7 from September 20, 2012 through March 7, 2013. 8 I say it appears to run from that 9 point because according to the materials that 10 have been presented, September 20, 2012 is the 11 first time that Inspector Rushton, the primary 12 FAA investigator in this case, contacted a 13 witness to discuss the alleged violation that 14 occurred on or about September 18, 2012. 15 If we start with September 20, 2012, 16 then the end date for the initial enforcement 17 investigation would be March 7, 2013, which is 18 the date preceding the issuance of the March 8, 19 2013 notice of proposed civil penalty. The 20 second period of time then begins with the March 21 8, 2013 date, which is the issuance of the notice 22 of proposed civil penalty, and it would run until

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443313 1 December 4, 2014, the day preceding the date this 2 office gets the referral to begin administrative 3 adjudication on the case. The third date, then, 4 beginning December 5, 2014, with the filing by 5 the FAA hearing docket of the request for hearing 6 and the complaint in this case, asking for formal 7 adjudication, and the beginning of the process 8 where the Rules of Practice are being implemented 9 by the Court and formal discovery is ordered. 10 It appears to me, and you may correct 11 me, either at the end of this summary or during 12 our next conference, that there are allegations 13 by the Respondent against the FAA within each of 14 those three time periods. For example, during 15 the initial enforcement investigation, from 16 September 20, 2012 through March 7, 2013, there 17 is an allegation of witness tampering, that being 18 the communications by Inspector Rushton with Dr. 19 Long, and the potential destruction or spoliation 20 of documentary evidence during that period of 21 time, that being those communications that Dr. 22 Long produced pursuant to the Respondent's

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1 subpoena. 2 It's unclear exactly when most of that 3 material was deleted or destroyed or lost because 4 the declaration by Inspector Rushton doesn't 5 point to a particular period of time. He simply 6 indicates that he periodically deleted email, and 7 then ultimately deleted all emails before he 8 transferred to the Denver, Colorado office in the 9 fall of 2013. That being the case, it appears 10 that there's a destruction of potential evidence 11 both during the initial investigation, and during 12 formal enforcement proceedings. I •ve kind of 13 listed that allegation in both time periods. 14 We have the two primary allegations by 15 the Respondent in the initial enforcement 16 investigation time period and what appears to be 17 one allegation of continuing destruction of 18 evidence during the period of time of March 8, 19 2013 through December 4, 2014, because according 20 to Inspector Rushton's declaration, the emails 21 that he had deleted, that Dr. Long had saved, he 22 deleted up to and through the fall of 2013.

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1 The third time period is the time 2 period when the case is brought for formal 3 adjudication before this Court. During that time 4 period, it appears that the Respondent has 5 identified possibly three separate activities for 6 possible sanction review. One, the obstruction 7 of discovery by the Respondent by FAA Counsel in 8 the communications by Counsel to Dr. Long and/or 9 his attorney about the Respondent's subpoena. 10 Two, a general allegation of the FAA failing to 11 provide full discovery, pursuant to both the 12 Court Order dated April 7, 2015, and the Court 13 Order dated September 1, 2015. And three, a 14 general allegation of the FAA improperly 15 withholding disclosable documentary evidence in 16 its possession during that time. That' s how I 'm 17 looking at the case. 18 For Mr. Borth, first and foremost, I 19 want to know what sanctions you are asserting 20 should be considered by this Court as appropriate 21 22 if, in fact, you prove, to the Court's satisfaction, any individual allegation or

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1 combination of allegations? No. 2, it would be 2 helpful to the Court, particularly given the 3 response of the FAA, if the Respondent could 4 identify more fully, or explain a little bit 5 more, in relation to the materials currently 6 before the Court, what evidence supports the 7 assertion that the FAA withheld discovery that it 8 had in its possession? 9 Because as I read these materials, it 10 appears that there is a disconnect, potentially, 11 between the FAA investigating team and FAA 12 Counsel. FAA Counsel asserts, in its materials, 13 it didn't even know about it, and didn't know 14 that there was a destruction of evidence. It's a 15 little unclear to me from the Respondent's 16 materials what it thinks the FAA did have in its 17 possession, when it possessed it, and when it 18 failed to disclose it. Any questions about that 19 so far, Mr. Borth? 20 21 22 MR. BORTH: No, Judge. With a little bit of time, I can address these, and I appreciate the outline. I will be able to

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443317 1 with your outline, I can fill in the skeleton 2 here and provide you with responses for all of 3 this, given a little bit of time. 4 ADMIN. JUDGE SULLIVAN: Okay. Well, 5 just so long as you understand the Court's 6 inquiry. I'm not sure that we need to have any 7 additional evidentiary material provided. We can 8 talk about that before we close. I want to turn 9 to Mr. Stevenson, at this point. 10 Mr. Stevenson, in your materials, I'm 11 going to talk about a variety of different 12 things. You indicated and emphasized that the 13 Court does not have the power to impose sanctions 14 for any activity that precedes the formal 15 commencement of litigation. I'm curious, since 16 you did not identify what date you thought 17 litigation commenced, if you would be so kind as 18 to take a position on that. It appears to me, 19 through all of the material that I've read in 20 this and other cases, that it's fairly well 21 established that the formal adjudication or 22 litigation of a case starts with the issuance of

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443318 1 the notice of proposed civil penalty, but you may 2 take a different stance, and if so, I'd like to 3 know about it. 4 Secondly, you've indicated that the 5 Court has no sanction authority before the formal 6 commencement of litigation, and I'm not sure I 7 find that persuasive, and you have not submitted 8 any authority in support of that, so I would like 9 to hear from the FAA about what authority 10 actually supports that broad-based statement. 11 I would say to you, just from my 12 review of this case, and the Federal Register in 13 particular, that is an interesting argument to 14 make, particularly since if I took that argument 15 and found it persuasive, the FAA could engage in 16 all kinds of reprehensible conduct and 17 vilification of the Respondent throughout a 18 period of an investigative period that could last 19 up to two years, and then not be held accountable 20 for it in any way, shape, or form. I find that a 21 very troubling stance for the FAA to take, 22 particularly since the FAA administrator has

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1 publicly endorsed a process, from the 2 investigative inception, of any civil penalty 3 action, that it should be fair, even handed, and 4 that it provides the Respondent not only the 5 perception of fairness, but the reality of 6 fairness. 7 I would like you to address that 8 particular inquiry for me. In addition, in the 9 materials that the FAA has provided, the FAA 10 asserts that the Respondent behaved badly when it 11 obtained the subpoena from the FAA hearing clerk, 12 and when it served the subpoena upon Dr. Long. 13 I find that a troubling argument, in 14 large part because the FAA continually refers to 15 a June 15, 2015 deadline that was contained in 16 the Court's earliest litigation procedural order, 17 which was amended at the FAA's request, by Court 18 Order, on September 1, 2015. The suppositions 19 and assumptions that the FAA has made in its 20 arguments about what the Court would have done 21 had the FAA brought a motion to quash that 22 subpoena are wildly speculative, particularly in

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443320 1 light of the fact that this Court granted the 2 parties the opportunity in its September 1, 2015 3 Order, to discuss and propose a completely new 4 discovery plan, which the parties, by the way, 5 never finalized. I would like the FAA to tell me 6 why it thinks that the Respondent should have 7 been bound by an old deadline that appears, in 8 this Court's opinion, to have been nullified by 9 the September 1, 2015 Court Order, if you can. 10 I would also like to ask the FAA about 11 its relationship with Dr. Long or have the FAA 12 talk a little bit about that because it appears, 13 from the evidence in this case, that Dr. Long was 14 an independent, third-party witness, who had 15 counsel. Under that definition, it does not 16 appear to me that any material produced by Dr. 17 Long would be privileged and not disclosable. 18 It would also appear to me that the 19 FAA would not have a basis for contacting Dr. 20 Long or for providing Dr. Long any opinion or 21 recommendations on how to respond or react to a 22 Respondent's subpoena. I am unaware of any

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-443321 1 supportive authority for such action, but perhaps 2 Counsel may enlighten me about that. I do have a 3 question for the FAA in terms of what the FAA's 4
-- and you may not want to discuss this, and I 5 certainly appreciate that it may be something 6 that the FAA would decline to discuss

-- how much 7 oversight the FAA attorney has for its 8 investigative team. Because the investigative 9 team speaks and acts, in part, under the 10 supervision of the attorney in litigation, and 11 under the Model Rules of Professional Conduct, 12 they are required to act and speak in a way that 13 is ethical in the litigation process, even during 14 an investigation. 15 It is deeply troubling, as I hope we 16 all understand, to see the kinds of comments and 17 rhetoric and viciousness that were coming out of 18 an FAA inspector's email exchange with Dr. Long. 19 It is deeply troubling to see that kind of 20 material surface. It's deeply troubling that it 21 may not be an isolated incident. 22 It would be helpful for the Court to

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443322 1 know about that. I'm going to ask you one or two 2 other questions. I'm going to look at my notes a 3 little bit. I think the FAA might also want to 4 talk about, if it chooses, what remedy other than 5 sanctions would be appropriate in this kind of 6 case for what I consider to be such reprehensible 7 conduct in witness tampering, in particular. If, 8 in fact, the FAA is correct that this Court, in 9 its adjudicative authority, does not have 10 oversight over the fairness and due process of 11 this entire action, then how is the Respondent to 12 be remedied? 13 How is the administrator's program 14 supposed to be run in a way that inspires 15 confidence by the aviation community and the 16 public at large if this Court cannot take action, 17 as the FAA has argued in its materials? 18 It appears to me that argument does 19 not serve the published program goals of the FAA 20 administrator, nor does it serve the FAA's goal 21 of enhanced education and partnership with the 22 aviation community for the mutual goal of public

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443323 1 safety in this country in the aviation community, 2 but I may not know everything that the FAA knows, 3 and I would be glad to be educated as to that 4 point. 5 It appears to me that the Respondent 6 is saying that sanctions are appropriate because 7 there is no other way to cure the harm that has 8 been done to this Respondent, regardless of what 9 the Respondent has been alleged to have done at 10 this point, but perhaps I am mistaken. Mr. 11 Stevenson, any questions from you about the 12 Court's inquiry to your client? 13 MR. STEVENSON: I do, Your Honor. I 14 apologize. I know it's been a while since I 15 wrote this, but I do not recall making the 16 arguments that the Court has absolutely no 17 authority to consider actions prior to the 18 commencement of litigation. Would it be possible 19 for the Court to identify where that argument was 20 made? 21 ADMIN. JUDGE SULLIVAN: I looked at 22 your entire argument. It appears to be

-- there

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1 is argument that says, on Page 1 of the response, 2 that, "The Staff Manual cited by the Respondent 3 cannot form the basis of sanctions." I 4 understand where that argument comes from that 5 there's no basis provided by the Respondent for 6 sanctions. 7 Let's see if I can find-- I have a 8 bunch of things highlighted. You argue that some 9 of the rules cited by the Respondent weren't 10 applicable, which I saw. I'm looking through 11 page by page, so let me see if I can find what I 12 saw. No authority, I would agree with that. I 13 may have been over-broad in that statement, and 14 if so, I apologize. I have some notes about how 15 and I'm looking at your materials. The 16 documents in question have been produced from 17 another source. Any sanction would be 18 inappropriate. If I misstated your entire 19 argument, I apologize. 20 I would say that it appears that the 21 FAA's argument certainly encompasses an assertion 22 that no sanctions are warranted in this case, and

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443325 1 I would like you to address that. If sanctions 2 are not warranted for this kind of email conduct, 3 in particular, then how does the FAA suggest that 4 harm to the Respondent be cured? How do you cure 5 that? Or is it the FAA's position that it 6 shouldn't have to? 7 MR. STEVENSON: It would be the FAA's 8 position that no harm occurred. 9 ADMIN. JUDGE SULLIVAN: None at all? 10 MR. STEVENSON: The FAA would disagree 11 with the notion that the inspector's comments 12 were vicious or reprehensible or constituted 13 witness tampering. 14 ADMIN. JUDGE SULLIVAN: How would you 15 frame

-- I know you said, at one point, that this 16 was -- and I'm going to look at your materials. 17 This is Page 11, Footnote 4, you asserted that 18 the FAA, through Inspector Rushton, engaged in 19 this email exchange only because it was the 20 Respondent's fault for having contacted Dr. Long, 21 and then apparently tried to co-opt him in some 22 way as a witness. Then you asserted that it was

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443326 1 simply a way for the FAA to, and I quote, 2 "Encourage a witness to provide a full accounting 3 of the violation. " You're certainly free to take 4 that position and continue it, but I can tell you 5 right now that I find that deeply troubling. Any 6 other questions, Mr. Stevenson? 7 MR. STEVENSON: No, that was my -- 8 that was the question I had, and then I will 9 reserve any responses to the Court's question 10 until we reconvene. 11 ADMIN. JUDGE SULLIVAN: Okay. Then 12 Mr. Borth, starting back with you as the Movant. 13 MR. BORTH: Yes. 14 ADMIN. JUDGE SULLIVAN: What would you 15 like to do, or what do you think would be most 16 profitable for your client, in terms of 17 responding, and then reconvening? Do you want to 18 simply look at this material, and then procure an 19 oral response? Do you want to provide a very 20 short written response before we reconvene? 21 What's preferable to you and your client? 22

(202) 234-4433 MR. BORTH: Judge, I think that this

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1 is an important issue for both my client and just 2 general jurisprudence. I would like to have an 3 opportunity to briefly write some responses. I'd 4 like to look at this transcript I've taken 5 notes, of course, but

-- so that I can address 6 the Court's inquiries point by point. 7 I can do it in a brief way, as brief 8 as I can, but I think it's important that I make 9 a record that way. That way, I address the 10 Court's issues one by one, and the Court has 11 something to refer to when we do reconvene, so if 12 there are further questions respecting my 13 client's position, they can be addressed in full. 14 That would be my request of the Court, 15 if I could have maybe two weeks to do that. I 16 have a big case down in Kansas City that's going 17 to take me, in depositions, most of next week, so 18 it kind of knocks out next week for me, but the 19 following week, if I could have that time around 20 early May to respond, I would very much 21 appreciate that. 22

(202) 234-4433 ADMIN. JUDGE SULLIVAN: I will not be

NEALR. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443328 1 in my office for most of the week of April 25th, 2 or at least part of the week, so let's talk about 3 the week of May 1st. We'll just talk about a 4 date for reconvening, and then I'll turn to Mr. 5 Stevenson. Do you have a time the week of May 6 1st? 7 MR. BORTH: Let me take a quick look. 8 The week begins on May 2nd, so the 3rd or the 5th 9 would be best for me -- 3rd, 5th, or 6th. 10 ADMIN. JUDGE SULLIVAN: Okay. Then 11 Mr. Stevenson, let's turn to you. Same question 12 to you, sir. What would work best for your 13 client, and what's your time availability? 14 MR. STEVENSON: At this point, I do 15 not think that the FAA would be making a written 16 submission. I can be available at the Court's 17 convenience, but specifically in the week of May 18 1st, I would also be available on May 5th or May 19 6th. On Tuesday, May 3rd, I have but I do 20 already have

-- 21 22

(202) 234-4433 ADMIN. JUDGE SULLIVAN: Mr. Stevenson. MR. STEVENSON: conferences both

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1 the morning and the afternoon. If we 2 ADMIN. JUDGE SULLIVAN: Mr. Stevenson, 3 I'll interrupt. 4 MR. STEVENSON: later in the 5 afternoon, after 3:00 or so, I would be available 6 on Tuesday, but otherwise, I wouldn't be. 7 ADMIN. JUDGE SULLIVAN: Okay, why 8 don't we talk about May 5th, when everybody's 9 available? Mr. Borth, starting with you, could 10 you reconvene at 10:30 again, like we did today, 11 on May 5th? 12 MR. BORTH: That would be fine, Judge. 13 ADMIN. JUDGE SULLIVAN: Okay. Mr. 14 Stevenson, how about for you? 15 MR. STEVENSON: That would work for 16 me, as well, Your Honor. 17 ADMIN. JUDGE SULLIVAN: Okay. Then 18 Mr. Borth, let's talk to you a little bit about a 19 filing date for any written materials your client 20 wants to file prior to May 5th. What would you 21 like to have as your filing date? 22

(202) 234·4433 MR. BORTH: I guess I'd have to ask

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443330 1 you, Judge, how much time you need to read it. 2 That would be

-- 3 ADMIN. JUDGE SULLIVAN: If you want to 4 file it on Monday, for example, the 2nd, that's 5 fine because apparently, we're only going to be 6 looking at your written materials, and not the 7 FAA's. 8 MR. BORTH: Okay, so I will file my 9 materials I don't know what we're going to 10 call this. I guess this

-- 11 ADMIN. JUDGE SULLIVAN: I think this 12 would simply be supplemental material. 13 MR. BORTH: Okay. So I will file that 14 on May 2nd. I will provide would you like me 15 to I can send that to you FedEx, Judge. I 16 want to make sure you have it in ample time, but 17 if I'm filing it May 2nd, do you want it to be in 18 your hand on May 2nd? 19 ADMIN. JUDGE SULLIVAN: Yes, so you 20 can do a regular U.S. mailing, if you like, and 21 then fax me a courtesy copy, and I'll accept the 22 courtesy copy if you fax it.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-443331 1 MR. BORTH: Very good. I'11 do the 2 fax, then, and I will FedEx. 3 ADMIN. JUDGE SULLIVAN: Yes, I'll ask 4 you to either fax or email Mr. Stevenson a 5 courtesy copy, as well, the same day. Mr. 6 Stevenson, do you have a preference on how you 7 receive that kind of material? 8 MR. STEVENSON: No, Your Honor, as 9 long as I receive it at least a few days before 10 the conference call, so I'll have the chance to 11 review it. 12 ADMIN. JUDGE SULLIVAN: Okay. It'll 13 be coming in to you on or before May 2, 2015. 14 Mr. Borth, I'll leave it to you to decide whether 15 you fax it or email it to Mr. Stevenson. 16 MR. BORTH: Okay, thank you, Judge. 17 ADMIN. JUDGE SULLIVAN: Okay, with 18 that, Mr. Borth, starting with you, is there 19 anything else we need to address for your client 20 today before we close? 21 MR. BORTH: I don't think so, Judge. 22 I would just request the court reporter to

(202) 234-4433 NEALR. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443332 1 provide me a transcript as soon as possible. 2 ADMIN. JUDGE SULLIVAN: Okay. I'll 3 address that before we close today. Mr. 4 Stevenson, any inquiry or questions on behalf of 5 your client? 6 MR. STEVENSON: I did have one, Your 7 Honor. I wanted to clarify that if the Court it 8 would be helpful for the FAA to make a written 9 submission, the FAA could, but also, I think that 10 I can certainly address the questions that the 11 Court asked at the next conference call. I can 12 submit something in writing if the Court would 13 prefer that. 14 ADMIN. JUDGE SULLIVAN: It's perfectly 15 fine to do it orally, Mr. Stevenson. I've looked 16 at all of the materials in front of me. If you 17 want to simply make an oral argument, that's 18 acceptable. 19 MR. STEVENSON: Thank you, Your Honor. 20 ADMIN. JUDGE SULLIVAN: You're 21 welcome. Going to the court reporter, Mr. Court 22 Reporter, is it possible for you to expedite the

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202) 234-443333

1 transcript? 2 COURT REPORTER: Yes, that should not 3 be a problem. 4 ADMIN. JUDGE SULLIVAN: Okay. When we 5 say expedite, what does that mean to you? 6 COURT REPORTER: On my end, I'll just 7 inform the office that you need the transcript 8 expedited. I don't handle the actual 9 transcription, but the office does. 10 ADMIN. JUDGE SULLIVAN: Okay. What 11 I'll say is that if you can get it to us in the 12 normal way, within the next five days, that would 13 be very helpful. 14 COURT REPORTER: Within the next five 15 days. I'll inform the office. 16 ADMIN. JUDGE SULLIVAN: Okay. Mr. 17 Borth, will that meet your needs? 18 MR. BORTH: I believe so, Judge. 19 ADMIN. JUDGE SULLIVAN: Okay, then I'm 20 going to thank everybody for your presence today. 21 It appears our business is complete. I'll look 22 forward to talking to you all again on May 5,

(202) 234-4433 NEALR. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443334

1 2016, at 10:30 Eastern Time. Until then, it's 2 the same conference line, as far as I know. If 3 it changes we're in the process of our 4 changing our conference lines

-- I'll be sure to 5 let you know. I'll issue an order about that. 6 With that, we can go off the record, and I wish 7 you all a good day. 8 (Whereupon, the above-entitled 9 teleconference was concluded at 11:11 a.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22

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www.nealrgross.com40 C E R T I F I C A T E

This is to certify that the foregoing transcript

In the matter of: Birmingham Flight Center

Before: DOT/OH

Date: 04-13-16

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

(202)234-4433 NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www,nealrgross.com