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In The Matter Of: 

## SERVED: February 4, 2014
U.S. DEPARTMENT OFTRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC



### DocketNo. FAA-2013-0045 WORLDWIDE AIRCRAFT 

### SERVICES, INC. ) ) ) ) ) ) 

### Case No. 2009S0150216 Respondent

ORDERGRANTING/DENYING RELIEF r:

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### On January 9, 2014, an Order Setting Motion Conference and Additional Litigation Deadline was filed. Among other things, this Order set deadline dates for new motions, and scheduled a Pre-Hearing Conference on January 31,2014 (10:30 a.m.-11:30 a.m. ET). On January 10, 2014 the FAA filed Complainant's Motion in Limine. On January 16,2014 the Respondent, Worldwide Aircraft Services, Inc, filed the Respondent's Motion to Compel the Full Enforcement Investigative Report ofComplainant and Memorandum ofLaw in Support Thereof. On January 22, 2014 the FAA filed Complainant's Response to Respondent's Motion to Compel. This Response did not, however, include copies ofthe FAA ExhibitNos. 3 and 4 as referenced in the material. On January 28, 2014 the Respondent filed the Respondent's Response to Complainant's Motion in Limine. That same day, on January 28,2014, aNotice ofHearingLocation was filed, providing the parties with the address/contact information for the venue site ofthe March 5-6, 2014 Hearing in Tampa, 'Florida. On January 31, 2014, the parties appeared by telephone for the scheduled Pre-Hearing Conference. During this Conference, the parties presented oral argument on the motions filed. The parties also discussed requests for subpoenas and other litigation matters. That same day on January 31, 2014, afterthe Motion Conference had concluded, the FAA filed Complainant's Supplemental Response to Respondent's Motion to Compel. Included in this Supplemental Response were the FAA's missing Exhibit Nos. 3 and 4 (as referenced in the FAA's Motion in Limine). On February 3, 2014, the FAA filed Complainant's Motion to Extend "List of Witnesses/Exchange ofExhibits" Deadline.

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### I. SHORT STATEMENT OF CASE STATUS This hearing in this case is set for March 5 and 6, 2014 in Tampa, Florida. On June 6, 2013 the parties appeared by telephone for a Rule 16 Litigation Scheduling Conference. At that time a litigation procedural schedule was discussed andjointlyagreed upon. That same day, on June 6, 2013, an Order Setting Litigation Dates and Procedures was filed pursuant to 14 C.F.R. 

### §13.217. Among other things, this June 6, 2013 Order directed the parties to serve each other with initial disclosures by June 28, 2013, and begin general discovery no later thanJuly 12,2013. (6/6/13 Order, paragraph A (1 and 2)). The parties were directed to complete all general discovery no laterthan August 26, 2013. This included serving responses to all requests for general discovery. (6/6/13 Order, paragraph A (5)). The June 6, 2013 Order also provided specific direction for anyparty seekingrelieffrom deficient ordisputed discovery. Among otherthings, the June 6, 2013 Order directed the parties to file all motions regarding discovery, including a motion to compel discovery, within "ten (10) calendar ·days after service ofa deficient response or after the response to the discovery is due, whichever occurs first." (6/6/13 Order, paragraph C and D). In addition, the June 6, 2013 Order directed the parties, priorto seeking relieffrom the administrative court, to attempt to confer "in good faith" ifa party believed thatthe opposing side had "failedto make discovery or disclosure." (6/6/13 Order, paragraph D). It appeared undisputed that on June 27, 2013 the FAA served upon the Respondent an Administrator's Notice ofCompliance with FRCP 26 (FAA Response, Exh. 3). That same day, onJune 27,2013,the FAApropounded Interrogatories, Requests for Production, and Requests for Admission upon the Respondent. It was undisputed that the

### pro se Respondent failed totimely answer any ofthis propounded discovery priorto the court ordered deadline ofAugust 26,2013. Instead, the Respondent filed answers to some ofthe discovery on September 6, 2013, and filed additional answers to the discovery, upon the FAA's request, on· December 4, 2013. Bothresponses were signed and dated by Mr. Michael a. Honeycutt, the

### pro

,se Respondent's representative in these proceedings. Both submission dates bythe Respondent were noncompliant with the August 26,2013 deadline set out in the June 6, 2013 Order. It appeared undisputed that the FAA worked informally withthe

### pro se Respondent to obtain the answers, without seeking formal reliefas allowed by the June 6, 2013 Order (6/6/13 Order, paragraph D), and without moving for amendment in the litigation schedule, as directed by the June 6, 2013 Order (6/6/13 Order, paragraph B). Neitherparty asserted, nor did it appear from the written record, that any ofthe.Respondent's answers could be characterized as supplemental discovery, which the June 6, 2013 Order set a deadline ofSeptember 30, 2013 for completion:
It was also undisputed thatthe Respondent chose not to request any discovery from the FAA during the period ofJune 6, 2013 through August 26,2013, oreven during the time between August 26, 2013 and December 4, 2013- whenthe Respondent was still responding to the FAA's discovery requests. In addition, neither party scheduled ortookprehearing depositions ofany witnesses. Neitherparty filed any dispositive motions. As a result, the January

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8, 2014 Motion Conference, set by the June 6, 2013 Order, was automatically converted and held as a Prehearing Status Conference. On January 8, 2014 the

### prose Respondent orallyraised concerns about the lack of discovery it had received from the FAA. Upon court inquiry, the Respondent assertedthat it could show proofthat it had formally requested discovery from the FAA during the scheduled discovery period. In addition, the FAA asserted that many fact issues had beenresolved based on the Respondent's answers to FAA discovery. To resolve these matters, additional litigation deadlines and another Motion Conference were set. On January 9, 2014 an Order.Setting Motion Conference and Additional Litigation Deadlines was filed. ·


### II. BRIEF DISCUSSION AND ANALYSIS This discussion is limited to certainmatters. Not all motions or arguments are discussed. However, all motions for relief, all documents submitted, and all party arguments havebeen fully considered and ruled upon. A. Respondent's Motion to Compel Discovery ofthe EIR As previously stated herein, on January 16, 2014 the Respondent filed its Motion to Compel the Full Enforcement Investigative Report ofComplainant and Memorandum ofLawin ·SupportThereof. It shouldbenoted, however, thatthis Motion did not contain a copy ofany Respondent discovery request to the FAA for discovery (e.g., email, fax, etc.) during the scheduled discovery period, norwas there a copy ofthe FAA's response to the Respondent's initial request, pursuantto the directive contained in the January 9, 2014 Order (page 1, paragraph 3). During the January 31,2014 Motion Conference, the Respondent concededthat it hadnot requested any formal discovery from the FAA afterthe June 6, 2013 Order was filed. The Respondent argued, however, that it should not be bound by the June 6, 2013 Order and litigation schedule, nor should its failure to condl!-ct any discovery be deemedrelevant. Instead, the Respondent argued that the FAA was at fault, eitherbecause the FAA should have known that the Respondent wanted additional discovery- specifically, a non-redacted copy ofthe FAA's Enforcement Investigation Report ("EIR")- and/orbecause the FAA was requiredto produce it without request and did not, pursuantto Rule 26(a)(l)(A)(ii). · The Respondent is correct that Rule 26(a)(l)(A)(ii) requires eachparty to provide, without awaiting a discovery request, a copy of"all documents

... that the disclosing partyhas in its possession, custody, orcontrol and may use to support its claims or defenses." In addition, 14 C.F.R. 

### §13.220(b) allows eachparty the option ofutilizing a variety of discovery methods to obtain information (e.g., depositions, written questions, interrogatories, requests for production, requests for admission, etc.). Pursuant to 14 C.P.R. §13.220(e), the scope ofdiscovery encompasses "any matterthat is not privileged and that is relevant to the subject matter ofthe proceeding." A party may also discover "facts known, oropinions held, by an expert who any otherparty expects to call to testify at the hearing." 14 C.P.R. §13.220(e). Pursuant to 14 C.F.R. §13.220(m), ifa party is not satisfied with the discovery itreceives, it has Page 3 of8

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an affirmative obligation to move to compel such discovery "as soon as possible" so that a ruling canbe made. 14 C.P.R. §13.217(e). This affirmative obligation allows the parties to obtainrelief and maintain compliance withthe litigation schedule. Inthe case herein, it was undisputed that on June 27, 2013 the FAA servea uponthe Respondent an Administrator's Notice ofCompliance withFRCP 26 (FAA Response, Exh. 3). Among otherthings, this June 27, 2013 FAA Notice ofCompliance asserted that the FAAhad complied with Rule 26(a)(l)(A)(ii), byhaving previouslyprovided to the Respondent, onor about June 22,2011,the "releasable portions" ofthe EIR. Thus, the FAAputthe Respondent on notice thatthe FAAbelieved it had complied with all disclosures required by Rule 26(a). B. Respondent's Responsibility to Participate inthe Discovery Process Pursuantto the June 3, 2013 Order and 14 C.P.R. §13.220(e), ifthe Respondent sought a complete and unredacted copy ofthe EIR, then upon receipt ofthe FAA's June 27, 2013 Notice ofCompliance, the Respondent had an affirmative obligation to immediately notify the FAAthat the Respondent did not agree withthe FAA'sNotice ofCompliance. The Respondent had an affirmative obligation to contact the FAAand engage in a "good faith" discussion about any alleged "missing" EIR discovery (6/6/13 Order, paragraph D). In the alternative, the Respondent could have exercised all ofits options to request the complete EIR underthe general discovery phase ofthe parties' litigation plan ((6/6/13 Order, paragraph A (2)-(7)). Inthe case herein, the Respondent orally asserted, during the January 31, 2014 Motion Conference, that it hadmade a requestto the FAA, by informal telephone call, for the unredacted EIR. The Respondent did not, however, have any record ofsuchtelephone communication (i.e., date and time, or scope ofdiscussion). The FAA did not agree with the Respondent that such informal communication had occurred. Even assuming that such a telephone call had occurred, it was the Respondent's burden to seek further reliefifthe discovery dispute remained unresolved, eitherby filing a timely Motionto Compel the missing discovery (i.e., within 10 days ofreceipt ofthe FAA's alleged deficient Notice ofCompliance with discovery), and/orby serving the FAA with a formal discovery request (e.g., Request for Production, etc) pursuantto the deadlines and guidelines contained in the June 6, 2013 Order. The Respondent did neither. C. Respondent's Argument Asserting the FAA's Obligations The Respondent asserts that the FAAhad an affirmative obligation to assert and prove "privilege" before it could be allowed to produce only redacted portions ofthe EIR. The Respondent is only partially correct. Certainly, ifthe Respondent had engaged in the discovery process, and requestedthe unredacted EIR, the FAA could have responded by filing a formal objection, and then pleadprivilege orother defenses to the Respondent's EIR discoveryrequest. 14 C.P.R. §13.220(f), (g), and (h); 

### See also, Steven Baicker-McKee, et.al, 

### Federal CivilRules Handbook, West Publishing (2012)(Rule 34)(A party served with a document request must serve a writte? response or move for a protective order).

Page 4 of8However, the Respondent did not object to the FAA'sNotice ofCompliance, nor did the Respondentproactively seek discovery. As a result, the FAA was never calleduponto produce discovery, norput in a position in which it needed to raise an objection (onprivilege orother grounds) to a request for the unredacted EIR. 

### See, e.g., Steven Baicker-McKee, et.al, 

### Federal CivilRulesHandbook, West Publishing (2012)(Rule 34)(Common objections to document requests may include privilege, attorney work product, non-discoverable expert information, burdensome and oppressive, etc.).
D. Respondent's Assertion ofDiscovery Participation The Respondent haspresented little evidence that it acted reasonably in attempting to obtain a copy oftheunredacted EIRpursuant to the litigation procedural schedule inthe June 6, 2013 Order, and/or thatthe Respondent's failure to conduct any timely discovery is excusable. During oral argument onJanuary 31, 2014, the Respondent asserted that two letters it mailed to the FAA inJune 2009, seeking a copy ofthe complete EIRpursuant to the Freedom of Information Act ("FOIA") should be deemed sufficientto show it acted affirmatively inthis litigationto seek discovery ofthe EIR in this proceeding. The Respondent provided no authority for this assertion. Indeed, it is doubtful that any authority exists. The Respondent's June 2009 requests were submitted to an FAA FOIA office in Washington, D.C., and an FAA employee in Florida approximately three (3) years and nine (9) monthspriorto the February 20, 2013 Complaint being filed. Itappears undisputed that neither ofthese 2009 letters were addressed or served upon the FAA's litigation attorney. 

### See, Steven Baicker-McKee, et.al, 

### Federal Civil Rules Handbook, West Publishing (2012)(Rule 34)(Documentrequests are limited to the parties inthe action, and must be served onthe parties' representatives). During the January 31,2014 Motion Conference, the Respondent orally concededthat it had not engaged in any follow-up with its FOIA requests since June 2009. While clearly these two letters showtheRespondent's historic interest in the unredacted EIR, they failed to show participation incourt-directed discovery with the FAA's chosen litigation representative from June 6, 2013 through August 26,2013. E. Parties' Mutual Obligationto Disclose Despite the

### prose Respondent's lack ofdiscovery process in this case, the Respondentis correct in asserting that ithas a limited right, even absent all discovery process, to be advised as to whatthe FAA's witnesses know, and to be advised as to what opinions or conclusions the FAA witnesses have reached based upon such knowledge. 14 C.F.R. 

### §13.220( e) provides inpart: 

## "aparty may discover facts known, or opinions held, by an expert who any otherparty expects to call to testify atthe hearing." · The June 6, 2013 Order (paragraph A (10)) provides that the parties mustexchange a list ofwitnesses on orbefore February 7, 2014. This list ofwitnesses must include a short statement ofthe testimony expected from each witness, as well as the resume ofeach witness who will be offered as an expert. Asnotedby the administrative court during the January 31, 2014 Motion Conference, the summary oftestimony for expert witnesses should be in compliance with Rule 26(a)(2)(B) and (C). Page5of8F. FAA's Motion to Extend Deadline As noted earlier herein, onFebruary 3, 2014, the FAA filed Complainant's Motionto Extend "List ofWitnesses/Exchange ofExhibits" Deadline. Inthis Motion to Extend, the FAA sought to extend the deadline for witness/exhibit exchange from February 7, 2014to February 12, 2014. The FAA did not advise whether ornot ithad contacted the Respondent regarding this Motion, and whether the Respondent had any objection. As ofthe date ofthis Order, the Respondent has not submitted any objection to the FAA's Motion. G. Subpoenas for Witnesses During the January 31, 2014 Motion Conference, both parties briefly discussed their interest in obtaining subpoenas for certain witnesses. Althoughnotmentioned during the Motion Conference, it should be pointed out that 14 C.F.R. 

### §13.227 limits and/orprohibits the abilityof each party to subpoenathe employees ofthe other.



### III. CONCLUSION Pursuantto 14 C.F.R. §13.205, 14 C.F.R. §13.217, 14 C.F.R. §13.218, 14 C.P.R. §13.220, and Rules 26-37, and after reviewing all relevant caselaw, regulation, statutory authority, and being fully advised;



### IT IS HEREBY ORDERED: 1. On 

### orbeforeFebruary 7, 2014, the Respondent shall perfect the record by filing and

· serving copies ofthe two 2009 letters it emailed to the FAA andto the Office ofHearings

attorney staffthe morning ofJanuary 31, 2013 as part ofan untimely supplement to its 1/28/14 Response to the FAA'sMotion in Limine. 2. The FAA's Motion in Limine ("MIL") to deem admitted as fact the admissions offered by the

### prose Respondent inresponse to FAA discovery requests (identified in the FAA's MIL as Requests for Admission Nos. 

### 1, 2, 4 and 5) is moot. These admissions, which are identical to the allegations inthe FAA's February 20,2013 Complaint, paragraph numbers 2 and 3 (page 1 ), and paragraph numbers 5 and 6 (page 2), were previously confirmed and adopted as admitted facts inthe January 9, 2014 Order. 3. The FAA'sMILto deem admitted as fact the admissions offered by the

### prose Respondent in response to FAA discovery requests (identified in the FAA's MIL as Requests for AdmissionNos. 12, 15, 16, and 17), are hereby confirmed and adopted. Because these matters are admitted as true, neither party needs to offerproofofthese admitted facts during the March 2014 hearing.

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# -4; The FAA'sMIL to deem admitted as fact the contents ofthe June 5, 2009 written statement made 

### Mr. Eric Price (FAA MIL, Exh. 2), on the grounds that the Respondent's discovery response to Interrogatory No.7 was an admission ofthe truth ofthe facts related in the statement is agreed to bythe Respondent, and the motion is granted.

5. The FAA's MIL to deem admitted as fact the contents ofthe June 8, 2009 written statement made 

### Mr. Brandon Plas (FAA MIL, Exh. 1), onthe grounds that the Respondent's discovery response to Interrogatory No.6 was an admission ofthe truth of the facts related in the statement, is agreed to by the Respondent, and the motion is granted.
6. The FAA's MIL for a finding that the Respondent's combined admissions conclusively support allegation No.3 (page 1) inthe FAA'sFebruary 20, 2013 Complaint is deemed moot. Allegation No.3 (page 1) inthe FAA's February 20, 2013 Complaint was previously confirmed and adopted as admitted fact in the January 9, 2014 Order.
7. The FAA'sMIL for a finding thatthe Respondent's combined admissions conclusively support allegation No. 10 (page 2) in the FAA's February 20, 2013 Complaint is denied.

8. The FAA's MIL to prohibit the

### prose Respondent from presenting affirmative defense evidence pursuant to 49 U.S.C. 

### § 5123(c) (2006) regarding its ability to pay theproposed fine, orits ability to continue to do business, is agreed to bythe Respondent, and the motion is granted.
9. The issue ofwhetherthe FAA will request that the administrative court consider and rule upon a payment plan schedule for any assessed civil penalty is hereby reserved.

10. The Respondent's Motion to Compel disclosure ofthe full FAA Enforcement Investigative Report ("EIR") is denied, for failure ofthe Respondent to timely seek and request discovery and/or discovery reliefduring the court-ordered discovery phase ofprehearing litigation.

11. The Respondent's Motion to Compel disclosure, to the extent the Respondent seeks disclosure ofthe names ofany FAA expert witnesses as well as any expert written reports (or summary ofexpertwitness testimony), which are required to be exchangedby the parties without specific discovery request pursuant to the June 6, 2013 Order (paragraph A (10), and Rule 26(a)(2)(A), (B), and (C) is granted.
12. The FAA's Motion to Extend the deadline for the parties to exchange witness/exhibit information, from the deadline ofFebruary 7, 2014 to a new deadline ofFebruary 12, 2014, is granted.

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13. 

### February 12,2014: New Deadline for Disclosure ofWitness Names and Testimony: Bothparties are hereby re-directed to comply withthe June 6, 2013 Order (paragraph A (10)), andto disclose and serve upon eachotherthe names oftheir witnesses, and a summary ofthe witnesses' testimony onorbefore the new deadline ofFebruary 12, 2014. This testimonial disclosure includes the expert's written report (or summary statement) as provided in Rule 26(a)(2)(B) and (C)). 14. For clarifications ofthis order orquestions with regard to the procedures to be followed inthis case, please contact Mr. Cody 

### L. Smith, Attorney-Advisor, atthe Office of Hearings (202-366-6941).

Attachment: Service List

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SERVICE LIST ORIGINAL & 

### ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing DocketClerk, AGC-430 Wilbur Wright Building-Suite 2Wl0001



### Mr. William P. Vines 

### Complainant's Counsel Federal AviationAdministration 

### ONE COPY

Office ofthe Regional Counsel,Southern Region P.O. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223
Mr. Michael A. Honeycutt, President Worldwide Aircraft Services, Inc., 

### Respondent c/o JET I.C.U. 2561 Rescue Way Brooksville, FL 34604 TEL: 352-796-2540 FAX: 352-796-2549 mike@jeticu.com
Judge J.E. Sullivan 

### U.S. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 FDMS No. FAA-2013-0045 (Civil Penalty Action)

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430.