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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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 

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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, 2 015, 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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
26 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
27 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
28 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
29 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
30 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
31 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
32 

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 REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
33 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
34 

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 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
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www.nealrgross.com 
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12:9 16:5,9, 12,16 

17:10 19:9 22:17 

24:15 25:16 29:19 

30:6,9 32:16 

matter 1:4 3:4 

mean 33:5 

meaning 11:8 

meaningful 8:9 

meet 33:17 

misstated 24:18 

mistaken 23:10 

Model21 :11 

moment 11:20 

Monday 30:4 

morning 3:18,19 7:15 

29:1 

motion 3:7 4:1,3,5,13 

4:16,19 5:1 9:1110:5 

19:21 

motions 4:21 7:20 

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26:12 

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mutual 22:22 

mutually 9:4 

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need 9:18 17:6 30:1 

31:19 33:7 

needs 9:10 33:17 

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noise 5:17 6:5,20 

normal33:12 

note 3:21 

notes 22:2 24:14 27:5 

notice 1:13 11:15 12:19 

12:2118:1 

notion 25:11 

November 4:17 

nullified 20:8 

number 3:5 

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objection 9:2,6 

observer 3:17 

obstruction 15:6 

obtained 19:11 

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occurred 12:14 25:8 

office 1:2 2:4 6:4 11:17 

13:2 14:8 28:1 33:7,9 

33:15 

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9:1,8 10:13,22 17:4 

26:11 28:10 29:7,13 

29:17 30:8,13 31:12 

31:16,17 32:2 33:4,10 

33:16,19 

Neal R. Gross and Co., Inc. 

Washington DC 

37 

old 20:7 

opinion 20:8,20 

opportunity 20:2 27:3 

oral9:15 26:19 32:17 

orally 32:15 

order 3:21,22 4:5 15:12 

15:1319:16,18 20:3,9 

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outline 16:22 17:1 

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28:2 

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10:12 14:5 18:13 19:8 

22:7 25:3 

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18:14,22 19:22 

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18:1 19:2 

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period 11:13,14,2112:5 

12:6,20 13:20 14:5,16 

14:18 15:1,2,4 18:18 

18:18 

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periods 11:3,7,1012:2 

12:4 13:14 14:13 

persistent 11:5 

perspective 9:16 

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please 6:15 

point8:13,13,1811:16 

12:9 14:5 17:9 23:4 

23:10 25:15 27:6,6 

28:14 

position 17:18 25:5,8 

26:4 27:13 

possessed 16:17 

possession 15:16 16:8 

16:17 

possible 15:6 23:18 

www.nealrgross.com 
38 

32:1,22 quite 7:17,21 Respondent's 4:3,5,15 situation 7:19 

possibly 15:5 quote 26:1 11:413:2215:916:15 skeleton 17:1 

potential13:19 14:10 20:22 25:20 Smith 3:15 

potentially 16:10 R responding 8:22 26:17 soon 32:1 

power 17:13 R2:3,11 3:11,14 response 11:8 16:3 sorry 6:12 

Practice 5:6,12 13:8 react 20:21 24:1 26:19,20 sort5:17 

prb@barnettlegal.com read 16:9 17:19 30:1 responses 17:2 26:9 source 24:17 

2:17 reality 19:5 27:3 Southern 2:5 

precedes 17:14 really 7:20 review15:618:12 31:11 speak21:12 

preceding 12:18 13:1 reasonable 9:12 rhetoric 21: 17 speaker6:16 

prefer 32:13 recall23:15 right26:5 speaks 21:9 

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preference 31:6 recommendations rolling 6:9 specifically 4:22 28:17 

presence 33:20 20:21 room 3:15 specify 10:15 

present 3:14 reconvene 8:6,12 26:10 rules5:6,1113:821:11 speculative 19:22 

presented 9:18 12:10 26:20 27:11 29:10 24:9 spoliation 13:19 

primarily 4:18 reconvening 9:3,14 ruling 4:6 10:3 Staff24:2 

primary 12:11 14:14 26:17 28:4 run 12:6,8,22 22:14 stance 18:2,21 

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produced 13:22 20:16 Region 2:5 10:8,18 15:19 17:13 23:11,13 25:7,10 26:6 

24:16 Regional2:4 22:5 23:6 24:3,6,22 26:7 28:5,11,14,21,22 

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profitable 26:16 regular 30:20 satisfaction 15:22 31:15 32:4,6,15,19 

program 22:13,19 regulations 10:7 saved 14:21 submission 28:16 32:9 

propose 20:3 relation 16:5 saw 24:10,12 submit 32:12 

proposed 11:1612:19 relationship 20:11 saying 23:6 submitted 18:7 

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provide 15:11 17:2 26:2 repeat 7:6 Secondly 18:4 Subsection 10:10 

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provides 19:4 32:21,22 33:2,6,14 see7:1411:1921:16,19 SULLIVAN 1:18 3:3,20 

providing 20:20 reprehensible 18:16 24:7,11 5:3,20 6:7,13 7:5,22 

public 22:16,22 22:6 25:12 send 30:15 8:15 9:1,810:1411:1 

publicly 19:1 represented 3:10,13 separate 11:3 15:5 17:4 23:21 25:9,14 

published 22:19 request 13:5 19:17 September 12:7,10,14 26:11,14 27:22 28:10 

pursuant 1:12 13:22 27:14 31:22 12:15 13:16 15:13 28:21 29:2,7,13,17 

15:11 requested 4:20 19:18 20:2,9 30:3,11,19 31:3,12,17 

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26:8,9 28:11 27:20 shape 18:20 support 18 8 

questions 4:10,12 8:4 Respondent 1 :6 2:9 short 8:5 9:17 26:20 supportive 21:1 

8:10,13 9:14 10:1 3:12 7:10 13:13 14:15 simply 3:20 9:15 14:5 supports 16:6 18:10 

16:18 22:2 23:11 26:6 15:4,7 16:3 18:17 26:1,18 30:12 32:17 supposed 22:14 

27:12 32:4,10 19:4,10 20:6 22:11 sir28:12 suppositions 19:18 

quick 28:7 23:5,8,9 24:2,5,9 25:4 sitting 3:17 9:13 sure 5:18 6:17,21 7:18 

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
17:6 18:6 30:16 34:4 

surface 21 :20 

T 

take6:1617:1818:2,21 

22:16 26:3 27:17 28:7 

taken 27:4 

talk4:9 7:12,14 8:2 9:9 

11:1817:8,1120:12 

22:4 28:2,3 29:8,18 

talked 6:20 10:8 

talking 11:11 33:22 

tampering 13:17 22:7 

25:13 

team 16:11 21:8,9 

teleconference 1: 12 

34:9 

telephone 3:7 

tell 9:12 20:5 26:4 

terms 7:10 9:13 21:3 

26:16 

thank31:16 32:19 

33:20 

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9:1210:1,5,1011:7 

11:10 22:3 26:15,22 

27:8 28:15 30:11 

31:21 32:9 

thinking 9:13 

thinks 7:10 10:20 16:16 

20:6 

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third-party 20:14 

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8:16 17:16 

three 11:2,7,1012:1,4 

13:14 15:5,13 

time 4:7 8:5,11,22 9:4 

11:3,14,2112:1,4,5 

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14:5,13,16,1815:1,1 

15:3,16 16:2117:3 

27:19 28:5,13 30:1,16 

34:1 

times 9:21 

today 3:5 4:11 8:2 

29:10 31:20 32:3 

33:20 

today's4:1 

transcript 27:4 32:1 

33:1,7 

transcription 33:9 

transferred 14:8 

transpire 7:18 

TRANSPORTATION 

1: 1 

tried 25:21 

(202) 234-4433 

troubling 18:2119:13 

21:15,19,20 26:5 

try6:16 

Tuesday 28:19 29:6 

turn 17:8 28:4,11 

turning 6:18 

two 7:7 10:7 14:14 

15:10 18:19 22:1 

27:15 

u 

u.s 30:20 

ultimately 14:7 

unaware 20:22 

unclear 14:2 16:15 

unconscionable 11:5 

understand 8:21 17:5 

21:1624:4 

UNITED 1:1 

v __ _ variety9:1917:11 

vicious 25:12 

viciousness 21:17 

vilification 18:17 

violation 12:13 26:3 

w __ _ want4:14 8:21 9:14,16 

10:1915:19 17:8 21:4 

22:3 26:17,19 30:3,16 

30:17 32:17 

wanted 7:13 32:7 

wants 29:20 

warranted 24:22 25:2 

wasn't6:11 7:17,20 

Waukegan 2:13 

way 18:20 20:4 21:12 

22:14 23:7 25:22 26:1 

27:7,9,9 33:12 

we'll6: 16 28:3 

we're 3:3 12:1 30:5,9 

34:3 

Wednesday 1:8 3:6 

week9:4,5 27:17,18,19 

28:1 ,2,3,5,8, 17 

weeks 27:15 

welcome 32:21 

weren't 24:9 

wildly 19:22 

willing 8:3 

wish 34:6 

withheld 16:7 

withholding 15:15 

witness 12:13 13:17 

20:14 22:7 25:13,22 

26:2 

work 28:12 29:15 

wouldn't 29:6 

write 27:3 

writing 32:12 

written 26:20 28:15 

29:19 30:6 32:8 

wrote 23:15 

___ X 

y 

years 18:19 

z 

(). ___ _ 

1 

111:1215:1319:18 

20:2,9 24:1 

10:28 3:2 

10:301:13 29:10 34:1 

1125:17 

11:11 34:9 

131:9 3:6 

13.20710:9 

13.217F 5:8 6:22 

13.220N 5:9 

14 5:8,8 6:22 10:9 

1519:15 

1701 2:5 

184:1712:14 

19 4:22 

1st 28:3,6,18 

2 

211:1316:1 31:13 

204:2212:7,10,15 

13:16 

2002:13 

201212:7,10,14,15 

13:16 

201312:7,17,19,21 

13:16 14:9,19,22 

201413:1,4 14:19 

20154:17 15:12,13 

19:15,18 20:2,9 31:13 

20161:9 3:6,22 4:5 34:1 

224:5 

220N 7:1 

25th 28:1 

2nd 28:8 30:4,14,17,18 

3 

3:00 29:5 

30 3:22 

30337 2:6 

3rd 28:8,9,19 

Neal R. Gross and Co., Inc. 

Washington DC 

39 

.. ·-----;----

4 __ _ 

413:114:19 25:17 

404-305-5200 2:6 

404-305-5223 2:7 

5 

5 13:4 33:22 

5th 28:8,9,18 29:8,11 

29:20 

6 

60025-4387 2: 14 

6th 28:9,19 

7 __ _ 

712:7,17 13:16 15:12 

8 

812:18,2114:18 

800 2:13 

815-356-7042 2:16 

847-724-5520 2:15 

www.nealrgross.com 
40 

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 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

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