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OFFICE OF HEARINGS 

WASHINGTON, D.C. 

LITIGATION SCHEDULE CONFERENCE R·ECEI\/E:-

IN THE MATTER OF: SEP- 9 20\3 

HEARING DOCK T FEDERAL AVIATION 

ADMINISTRATION, 

Complainant, 

v. FDMS No. 

FAA-2012-

0477 

LIBERTY FOUNDATION, INC., 

Respondent . 

Friday, 

August 23, 2013 

Via Teleconference 

The litigation schedule conference 

came on for hearing, pursuant to notice, at 

11:00 a.m. 

BEFORE: 

(202) 234-4433 

THE HONORABLE J.E. SULLIVAN, 

Administrative Law Judge 

NEAL R. GROSS 

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APPEARANCES: 

On Behalf of the Complainant: 

CHRISTOPHER STEVENSON, ESQ. 

Office of the Regional Counsel 

P.O. Box 20636 

Atlanta, Georgia 30320 

(404) 305-5200 

(404) 305-5223 FAX 

On Behalf of the Respondent: 

STUART A. GOLDSTEIN, ESQ. 

of: Stuart A. Goldstein, P.A. 

9350 South Dixie Highway 

lOth Floor 

Miami, Florida 33156 

(305) 670-1222 

(305) 670-7065 FAX 

NEAL R. GROSS 

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

2 (11: 01 a.m.) 

3 JUDGE SULLIVAN: We're on the 

4 record ln the matter of the Liberty 

5 Foundation, Inc. This is· FAA Docket 2012-

6 0477. 

7 Today is Friday, August 23, 2013, 

8 and the parties have convened for a telephone 

9 conference at the request of Respondent's 

10 counsel. 

11 The FAA is ·represented by its 

12 attorney of record, Christopher Stevenson. 

13 The Respondent, Liberty Foundation, Inc., is 

14 represented by its attorney of record, Stuart 

15 A. Goldstein. 

16 Good morning, everyone. Mr. 

17 Goldstein, as I understand it from my staff, 

18 you had contacted them earlier this week 

19 requesting an expedited telephone conference 

20 because you thought you could expedite some 

21 matters that have been addressed by motion by 

22 the parties. Is that correct? 

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1 MR. GOLDSTEIN: Yes. I don't 

2 remember if I called last week or this week, 

3 but I thought 

4 JUDGE SULLIVAN: I can tell you 

5 what my staff told me. Essentially, there was 

6 a phone call on Monday, August 19, 2013, at 

7 4:23p.m. 

8 MR. GOLDSTEIN: Okay. 

9 JUDGE SULLIVAN: Okay. 

10 MR. GOLDSTEIN: But, yes, to 

11 answer your question, Your Honor, yes, I 

12 thought that a conference call would help 

13 expedite an understanding of these issues that 

14 are raised in my two motions and in Mr. 

15 Stevenson's response. So I did request a 

16 conference. 

17 JUDGE SULLIVAN: Okay. Why don't 

18 I just briefly highlight what has happened in 

19 terms of the motion filing, and then you can 

20 tell us where you want to spend your time this 

21 morning, and we can see what we can do to help 

22 you folks . 

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1 So as I understand it, 1n looking 

2 at the overall record, on July 31, 2013, the 

3 FAA filed an amendment to its complaint. On 

4 August 5, 2013, an order granting Respondent's 

5 motion to compel was filed. 

6 On August 7, 2013, the Respondent 

7 filed a combined motion request. And within 

8 that combined motion, there were the following 

9 motions: number 1, a motion to stay or revise 

10 the litigation schedule due to new allegations 

11 in the amended complaint; number 2, a motion 

12 to allow more discovery on new issues raised 

13 in the amended complaint; number 3, a motion 

14 to order the FAA to disclose its witnesses and 

15 documentation on the amended complaint; number 

16 4, a motion to stay request to -- stay the 

17 requirement to answer the amended complaint 

18 pending resolution of these motions. 

19 And then, on August 9, 2013, there 

20 was an order temporarily granting the 

21 Respondent's motion to stay the time to file 

22 an answer to the amended complaint, and 

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1 reserving ruling on other requested relief, 

2 giving tpe FAA until August 17, 2013, to file 

3 a response. 

4 Then, on August 15, 2013, the FAA 

5 filed a motion for summary judgment. On 

6 August 17, 2013, there was no response filed 

7 by the FAA to the August 7, 2013 motion. 

8 On August 20, 2013, we did receive 

9 in the U.S. mail a response from the FAA 1n 

10 opposition to the Respondent's motion. On 

11 August 20, 2013, the Respondent then filed a 

12 motion for enlargement of time to respond to 

13 the FAA's motion for summary judgment. 

14 So I have a variety of different 

15 things on the Court's plate. So, Mr. 

16 Goldstein, where do you want to start? Where 

17 do you think you can lead us in terms of 

18 expediting certain things that have been sent 

19 to the Court? 

20 MR. GOLDSTEIN: Okay. Your Honor, 

21 thank you. First of all, I think you did 

22 exactly correctly state what I was requesting 

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1 in that longer titled motion that was filed on 

2 August 6th. And I --

3 JUDGE SULLIVAN: Well, just so 

4 that you know, my filing date is the date that 

5 I get it date-stamped in the office. So when 

6 I say August 7th, that's the date we get it. 

7 You may have put it in the mail some other 

8 time, but my filing date is the date I see it 

9 essentially. 

10 MR. GOLDSTEIN: Okay. But we do 

11 contemporaneously fax a copy,- so 

12 JUDGE SULLIVAN: Okay. 

13 MR. GOLDSTEIN: --and it's sent. 

14 I always fax a copy. 

15 JUDGE SULLIVAN: Yes. It was 

16 faxed after the close of business, and the 

17 staff didn't see it until the next day. It's 

18 docketed at that -- the day they come in, so 

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20 MR. GOLDSTEIN: Okay. 

21 JUDGE SULLIVAN: Yes. So we got 

22 it on August 7th, essentially, but it was 

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timely. What do you want to talk about 

regarding that? 

MR. GOLDSTEIN: Well, I would say 

all of those things other -- all of those 

i terns other than the one you have already 

granted temporarily staying requirement to 

answer the amendment to the complaint, I think 

the most important thing from my perspective 

is the first requested relief, which was 

staying or revising the dates in the 

scheduling order of January 22nd and --

JUDGE SULLIVAN: Okay. Well, let 

me -- before you start an argument, so as I 

understand it, this is not a conference to 

talk about any agreements that you have 

reached regarding t~ese motions. This is an 

expedited conference that you have requested 

in order to make arguments and get rulings on 

these motions. 

MR. GOLDSTEIN: Yes, Your Honor. 

And it has been made all the more so because 

of the motion for summary judgment that has 

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1 been filed 

2 JUDGE SULLIVAN: Okay. 

3 MR. GOLDSTEIN: -- which was filed 

4 after this motion. 

5 JUDGE SULLIVAN: Okay. And when 

6 you called the office to set this expedited 

7 telephone conference up, was it with the 

8 understanding that Mr. Stevenson joined you in 

9 the desire to have an expedited argument this 

10 morning on these motions? 

11 MR. GOLDSTEIN: No, Your Honor. 

12 In fact, he opposed it. 

13 JUDGE SULLIVAN: Okay. Well, let 

14 me go to Mr. Stevenson, then, for a moment. 

15 Mr. Stevenson, let's chat about that. I did 

16 receive your August 20, 2013 filing, which is 

17 the FAA's response in opposition to the 

18 Respondent's discovery motion. And I have 

19 read all of that. 

20 There are some time limits that 

21 are coming to a close fairly quickly that the 

22 Respondent wants to move for enlargement. Are 

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1 you prepared to argue whatever is on the 

2 Court's plate in terms of what the Respondent 

3 has filed and what you answered today? 

4 MR. STEVENSON: I believe I am, 

5 Your Honor. I mean, the only -- although I 

6 I'm looking for my file copy, and I seem to 

7 have misplaced it for a moment. But I wanted 

8 to confirm I was under the impression that we 

9 had -- I thought I had faxed the response. 

10 You had said on or before the 17th, and I 

11 wanted to clarify that -- that we did send it 

12 on or before the -- on the 16th. And I had 

13 thought that that was -- my recollection was 

14 that I sent via facsimile as well. 

15 JUDGE SULLIVAN: Okay. 

16 MR. STEVENSON: Although I --

17 JUDGE SULLIVAN: It's possible 

18 that you may have. We are having some 

19 staffing changes. And if one of the new staff 

20 got it and didn't docket it correctly, then I 

21 have never seen it. So I will just tell you, 

22 the only thing that's in my file is date 

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1 stamped August 20 and it's the original. 

2 MR. STEVENSON: Yes. Yes. I 

3 mean, I --

4 JUDGE SULLIVAN: I'll accept your 

5 assertion that it was faxed, and I'll simply 

6 accept that my office lost it and we can --

7 because I'm not as concerned about that 

8 lateness. You've been very good about faxing 

9 things. 

10 I'm really -- what I want to make 

11 sure 1s that both parties are able, willing, 

12 and comfortable in making whatever arguments 

13 that you want this morning. 

14 MR. STEVENSON: Yes, Your Honor. 

15 JUDGE SULLIVAN: Okay. Then, Mr. 

16 Goldstein, I'll just turn back to you, and 

17 I'll tell you that I have read all of the 

18 material except for the motion for summary 

19 judgment, because I simply haven't had a 

20 chance to read that and I didn't think that 

21 was a compelling issue for today. 

2.2 What is it that you would like to 

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1 highlight in terms of these motions that you 

2 have made? 

3 MR. GOLDSTEIN: Well, Your Honor, 

4 I don't know that I can say it any better than 

5 what I said 1n that August 6th motion or 

6 August 7th motion. But my concern was that 

7 when I filed this motion again that was 

8 before I received the motion for summary 

9 judgment was that there were five new 

10 regulations cited as being allegedly violated 

11 by the Liberty Foundation, five new ones in 

12 addition to the ones that were already in 

13 there. 

14 And there were several paragraphs 

15 added, and I believe -- and we are not at 

16 issue on the amendment, since there has been 

17 no answer. But I believe, nevertheless, I 

18 have a right to do discovery on those matters. 

19 And some of them are fact-intensive. 

20 And I believe -- Mr. Stevenson may 

21 disagree with that, but I believe that they 

22 are fact-intensive, and they are by no means 

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1 already resolved in the record. And so my 

2 pr1mary concern is one of due process, that we 

3 have my client has the right to do 

4 discovery. And it will be limited, you know, 

5 because -- it will be limited, you know, so 

6 that we will have a fair opportunity to defend 

7 ourselves on the new allegations. 

8 JUDGE SULLIVAN: Let me ask you a 

9 couple of questions about that, because in the 

10 FAA's response to this particular motion, the 

11 FAA asserts that it is finished with all of 

12 its discovery, all of its witnesses and 

13 documentary evidence have been provided to 

14 you, and that the amendments and the FAA's 

15 amended complaint arise solely out of a 

16 discovery deposition conducted of your 

17 witness, Mr. Schneider. 

18 And so this should not be a 

19 surprise to your client, and it should not 

20 involve a lot of time. So can you answer that 

21 specifically? Or at least try to cover that 

22 particular response about how this is simply 

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1 cleaning up something that the parties knew 

2 about informally? 

3 MR. GOLDSTEIN: Well, I disagree 

4 with what-- Mr. Stevenson's conclusion. Mr. 

5 Stevenson took Mr. Schneider's deposition on 

6 May 1st, 92 days before the amendment was 

7 filed. So the fact that he waited 92 days put 

8 me or my client in a time bind to begin with. 

9 Okay. Mr. Schneider's deposition 

10 was maybe 35, 50 minutes. So the fact that he 

11 waited 92 days I think was prejudicial 1n 

12 terms of this schedule that we have. 

13 Secondly, Mr. Stevenson makes the 

14 argument, which I very much dispute -- that 

15 is, that Mr. Schneider already agreed in his 

16 case that he made these violations, and that 

17 is simply not true. Mr. Schneider's case was 

18 resolved by settlement. And in the FAA's --

19 and this was handled by the lawyer that 

20 initially had this case, the lawyers in the 

21 Great Lakes Region. 

22 In the document dated January 31, 

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1 2012, which is called a withdrawal of 

2 emergency order of revocation and replacement 

3 with order of suspension -- that 1s to Mr. 

4 Schneider it says in the very first 

5 paragraph, "And in consideration of your 

6 withdrawal of the appeal to the NTSB and the 

7 settlement reached." 

8 So there was no admission 

9 whatsoever by Mr. Schneider of any of the 

10 allegations in the complaint, other than some 

11 basic allegations about the number of a 

12 certificate, and so forth, and certain work 

13 done on certain days. But there was no 

14 admission whatsoever that he violated any of 

15 those regulations. 

16 So what I have now to deal with is 

17 five new Federal Aviation Regulation 

18 allegations that I have not done discovery on. 

19 And these regulations the allegations 

20 related to these regulations will be testified 

21 to about by FAA witnesses. 

22 I believe, based upon the motion 

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1 for summary judgment, that I have an idea who 

2 they will be now. But, again, when I filed 

3 this motion, I wasn't aware of that. There 

4 had been no motion for summary judgment filed. 

5 So I believe now I have an idea who those 

6 witnesses will be, but I still have a right to 

7 know for sure who they are going to be or who 

8 Mr. Stevenson thinks at this moment they are 

9 going to be. 

10 And I believe that 1n fairness and 

11 due process I have a right to do discovery of 

12 those witnesses. It will be limited, but I 

13 believe I have that right. 

14 JUDGE SULLIVAN: And when you're 

15 talking about discovery of those witnesses, 

16 are you talking about interrogatories, 

17 requests for admission, depositions? What are 

18 you talking about? 

19 MR. GOLDSTEIN: My preference 

20 would be to do it by deposition, because I 

21 think it will take less time to do it that 

22 way . 

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1 JUDGE SULLIVAN: Okay. And so in 

2 terms of the first of the four motions that 

3 are present in the August 7, 2013, Respondent 

4 motion, the first motion is a motion to stay 

5 or revise the schedule order due to new 

6 allegations in the amended complaint. What 

7 are you actually seeking when you say that? 

8 You did not provide any particular 

9 timeline, and yet you say today that you are 

10 looking at limited discovery only. So what do 

11 you anticipate would be helpful to your client 

12 MR. GOLDSTEIN: Well, what I would 

13 say, Your Honor, is that I would need -- and, 

14 again, this will depend to some extent on Mr. 

15 Stevenson's schedule-- my schedule is pretty 

16 open, but Mr. Stevenson's schedule and the 

17 witnesses' schedule to depose those persons 

18 who gave affidavits in support of the motion 

19 for summary judgment, insofar as they relate 

20 to the amended charges, not to go back and 

21 depose them about the other issues. 

22 So I would think 3 0 days as an 

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1 outside would be enough time to accomplish 

2 that, assuming, you know, the schedules can be 

3 put together. 

4 Now, the one caveat, Your Honor, 

5 1s, as I put 1n my in the motion for 

6 enlargement of time 1s that my office is 

7 moving next week. The official move dates are 

8 Friday and Saturday. The moving people are 

9 coming Friday and Saturday, but all next week 

10 we are going to be, you know, in the process 

11 of putting stuff 1n boxes, and you know what 

12 a horrible experience moving 1s. 

13 So that -- next week 1s basically 

14 -- you know, basically not available to me. 

15 Nevertheless, I think, you know, say 30 days 

16 from Labor Day, you know, ought to be enough 

17 time, assum1ng that schedules can be worked 

18 out okay. I'm willing to travel, you know, as 

19 necessary, which -- you know, to do these 

20 depositions. My client is willing to let me 

21 do that. So that's what I anticipate. 

22 And then, let's say two weeks 

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1 after that to get the transcripts, because I 

2 don't want to have to pay for expedited 

3 transcripts, but they won't be lengthy 

4 transcripts anyway. And then, on the 

5 assumption that those people who were 

6 identified in Mr. Stevenson's motion for 

7 summary judgment are the people who are going 

8 to be deposed and I just -- as long as 

9 there's a confirmation of that, I don't have 

10 to ask him that question formally. Then, I 

11 think I would be in a position to respond to 

12 the motion for summary judgment. 

13 So it's very difficult for me to 

14 give you a specific timeline without, you 

15 know, letting me do the depositions, get the 

16 transcripts, you know, and sort of homogenize 

17 it all in my brain and then write-- you know, 

18 write what likely will be a fairly lengthy 

19 response to the motion for summary judgment. 

20 And I will have to --

21 JUDGE SULLIVAN: So what you're 

22 saying to me, you know, and I just -- I like 

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1 a little bit of bluntness I guess, is that you 

2 want to continue the trial date that 1s 

3 currently scheduled in the early part of 

4 November 2013. 

5 MR. GOLDSTEIN: I 'm thinking it 

6 can't be avoided, Your Honor. 

7 JUDGE SULLIVAN: And when you say 

8 you're thinking it cannot be avoided, I 

9 understand the rationale you have for that. 

10 When do you think that you would be prepared 

11 in an ideal world to convene? I mean, are you 

12 talking about a 60-day continuance, a 90-day 

13 continuance? Can you kind of give me a sense 

14 of what you're seeking for relief? 

15 MR. GOLDSTEIN: Well, following 

16 along what I was saying a moment ago, Your 

17 Honor, I think that if I can complete the 

18 discovery, the depositions, by the end of 

19 September, and get the transcripts by mid2 0 October, and have another two weeks after that 

21 to write my response to the motion for summary 

22 judgment, which would be the end of October, 

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1 then -- and Your Honor of course would have to 

2 have some time to rule on it, plus we would 

3 you know, after my response to the summary 

4 judgment is due, I don't know if the rules 

5 provide Mr. Stevenson an opportunity to reply, 

6 but if he has an opportunity to reply that 

7 would be another several weeks. So what I'm 

8 thinking is 60 to 90 days. 

9 JUDGE SULLIVAN: Okay. So we have 

10 addressed very briefly the first motion in the 

11 August 7, 2013 combined motion packet. I 

12 think we have addressed the second motion, 

13 which is your motion to allow more discovery 

14 on the new issues raised in the amended 

15 complaint. 

16 It appears that the FAA's response 

17 identified an answer to your third motion, 

18 which was the motion to order the FAA to 

19 disclose its witnesses and documents on the 

20 amended complaint. 

21 And then we have this fourth 

22 motion which is the motion to stay the 

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1 requirement to answer the amended complaint 

2 pending resolution of the motion, which I 

3 believe I addressed at least on a temporary 

4 basis. 

5 So is there anything else, Mr. 

6 Goldstein, that you want to talk about today? 

7 I think the August 20, 2013 motion you just 

8 filed on Tuesday of this week, which was the 

9 motion for enlargement of time to respond to 

10 the FAA's motion for summary judgment, is part 

11 of what we're talking about, too. But would 

12 you like to add or comment anything about 

13 that? 

14 MR. GOLDSTEIN: No, Your Honor. I 

15 think that says it. And I also think you've 

16 recapped my quadruple motion there well, with 

17 one exception I would say, and that is I did 

18 say that -- I believe that now I know who the 

19 witnesses will be that the FAA will call to 

20 try to prove its case on these new 

21 allegations. 

22 I just want to make sure about 

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1 that, and that Mr. Stevenson either commit 

2 that those are the witnesses, or if there's 

3 others he tell me, so that when I finish doing 

4 the limited discovery I do for the witnesses 

5 he has -- will be able to testify on these 

6 matters, I don't have to come back and say, 

7 11 But, wait, he has now given me a new person." 

8 That's all. 

9 JUDGE SULLIVAN: I understand. 

10 Thank you. 

11 Mr. Stevenson, why don't I turn to 

12 you and ask you to do a response to what Mr. 

13 Goldstein has just presented. 

14 MR. STEVENSON: Sure, Your Honor. 

15 Well, I think the place to start is actually 

16 the question that you asked Mr. Goldstein, 

17 which, you know, you referenced how I have 

18 represented -- you have already gone over all 

19 of this in discovery, and you asked him, you 

20 know, to address that and say what it was that 

21 he wanted. 

22 He talked about some other things 

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1 that I can address if you want. You know, I 

2 don't think we need to argue here about the 

3 length of the Schneider deposition. But his 

4 one response as to what it was he actually 

5 needed to conduct discovery on was these five 

6 new regulations, which is a phrase that he has 

7 repeated a couple of times. 

8 The problem is that not a single 

9 one of those new regulations relies on 

10 anything whatsoever except Mr. Schneider's 

11 status as Director of Maintenance and an agent 

12 of the Respondent. Each of those new 

13 regulations is from Part 43 and it's about 

14 performing maintenance or recording 

15 maintenance. 

16 But already present in this case 

17 from the beginning have been all of the 

18 factual 1ssues that underpin those 

19 allegations, because we will have like a new 

20 -- one of the new allegations would be, for 

21 example, you operated the aircraft after 

22 improper maintenance had been performed . 

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1 And so necessarily as part of that 

2 the FAA was going to have to show that 

3 improper maintenance had been performed. And 

4 the only new regulation that the amendment 

5 changes is instead of just saying, 11 You' re 

6 liable for operating the aircraft after the 

7 improper maintenance, 11 we are also saying, 

8 11 Because it was your agent, your Director of 

9 Maintenance, who performed the improper 

10 maintenance, you are also liable for the Part 

11 43 violation as well. 11 

12 There is literally nothing for 

13 opposing counsel to go back and depose these 

14 various witnesses about that has not already 

15 been covered, such as why the maintenance was 

16 improper, why it rendered the aircraft 

17 unairworthy, why it was a major alteration. 

18 We have done all of that, and we do not need 

19 to do it again. 

20 The only factual issue that was 

21 new about those regulations was the fact that 

22 the Mr. Schneider admitted, and later 

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1 witnesses confirmed, that he was in fact the 

2 Director of Maintenance for the Liberty 

3 Foundation at the time that he was performing 

4 these improper alterations and the improper 

5 repair. So there just is not anything for us 

6 to go back and do new discovery on. 

7 Additionally, I mean, I should 

8 note that -- I mean, this may be obvious, and 

9 it is out there in the record, but the reason 

10 that the FAA filed its summary judgment motion 

11 at the time that it did was because that was 

12 the time that had been appointed in the 

13 scheduling order back in January. It's not 

14 like we threw the summary motion judgment out 

15 when we did in order to you know, to 

16 somehow land in the middle of this, you know, 

17 of the Respondent's motion. 

18 But I am a bit troubled by what 

19 Respondent has said 1n its motion for 

20 enlargement of time on the response to the 

21 summary judgment and how it needs more time to 

22 schedule these things in that this response 

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1 deadline for their response to the summary 

2 judgment motion has been set for seven months. 

3 And I don't think that it is 

4 appropriate to take into account the fact that 

5 opposing counsel seemingly chose to schedule 

6 something that conflicted with that motion 

7 deadline. I understand that, as opposing 

8 counsel notes in the motion for enlargement of 

9 time, that it's not a short summary judgment 

10 motion. But the complexity of the cases 

11 involved in -- the issues involved in this 

12 case have been there from day one. 

13 And we've had this motion deadline 

14 for seven months. There is absolutely nothing 

15 new to cover in discovery, and we should not 

16 change the deadlines, and certainly I believe 

17 should not push back the hearing again as a --

18 in order to permit the Respondent to conduct 

19 empty depositions and push back its response 

20 deadline for the motion for summary judgment. 

21 JUDGE SULLIVAN: Let me ask you a 

22 question, Mr. Stevenson. There was a concern 

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1 raised by your friend across the aisle that 

2 you delayed filing the amended complaint for 

3 over three months after Mr. Schneider's 

4 deposition in May 2013. Would you respond to 

5 that, please? 

6 MR. STEVENSON: I would disagree 

7 that that was a delay. I agree that it 

8 happened after that timeframe. I don't 

9 believe that it is necessary or appropriate 

10 for a litigant to rush to amend a complaint as 

11 soon as possible or just to amend any sort of 

12 filing and pointlessly create unnecessary 

13 things. 

14 As we have d~scussed, and as 

15 mentioned in the motions, this is something 

16 that the Respondent was aware of. If it 

17 matters the length of Mr. Schneider's 

18 deposition, it was -- I'm pretty confident it 

19 was more than 40 minutes, although I'm not 

20 sure that that really matters. 

21 A witness has 30 days 1n which to 

22 correct their deposition testimony. I 

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1 certainly think it would have been imprudent 

2 for me to -- I mean, under any circumstances 

3 to file anything before seeing whether or not 

4 Mr. Schneider wanted to change something about 

5 his testimony. 

6 But also during this timeframe, 

7 opposing counsel and I did discuss these 

8 issues that were raised, and opposing counsel 

9 and I also had discussed settlement of the 

10 case. I don't think that there was any 

11 obligation for the FAA to rush to file 

12 something when those sorts of discussions were 

13 ongoing and when the Respondent was aware that 

14 these issues had come up. 

15 And I don't believe-- I don't see 

16 any prejudice that has arisen to the 

17 Respondent from the delay in formally in many 

18 of the complaints to conform to the evidence 

19 and represent the 1ssues that the Respondent 

20 already knew about. 

21 JUDGE SULLIVAN: Okay. Let me ask 

22 you another question. There was a request by 

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1 Mr. Goldstein for a confirmation by you during 

2 this telephone motion conference to confirm or 

3 deny that your witness list and your discovery 

4 exchange from your perspective is complete. 

5 MR. STEVENSON: I would confirm 

6 that, Your Honor. The new issues that are 

7 covered by the amended complaint are the exact 

8 nature of the failure of the fuel tanks in 

9 June of 2011, which is established by Mr. 

10 Schneider's deposition, the fact that 

11 that's the first thing . 

12 The second thing 1s the fact that 

13 -- I'm sorry, the fact that Mr. Schneider did 

14 not make the maintenance record entry for the 

15 June 2011 repair until after the flight, which 

16 is established by Mr. Schneider's deposition, 

17 and the agency relationship between Mr. 

18 Schneider and the Liberty Foundation at the 

19 time that these alterations and repairs were 

20 occurring, which was established by Mr. 

21 Schneider's testimony and then confirmed by 

22 the testimony during depositions of Mr. 

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1 Fowler, the Executive Director of the Library 

2 Foundation, and Timothy Bourgoine, who was the 

3 prior Director of Maintenance for the Liberty 

4 Foundation. 

5 And I will also note on that point 

6 that the amendment to the complaint is 

7 essentially a mirror of an affirmative defense 

8 that the Respondent had raised, which was that 

9 Mr. Schneider was some outside mechanic who 

10 they could rely on and -- you know, and this 

11 would excuse all liability . 

12 So, I mean, all of the factual 

13 issues that are pertinent to the agency 

14 relationship between these parties were 

15 already factual issues raised by the 

16 Respondent's first affirmative defense. And, 

17 obviously, the Respondent had that. 

18 JUDGE SULLIVAN: And let me ask 

19 you a little bit about that, too. 

2 0 Essentially, in amending the complaint and 

21 asserting that the Respondent, Liberty 

22 Foundation, Inc., is vicariously liable 

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1 because of the relationship issues that arose 

2 out of the May 2013 deposition of Mr. 

3 Schneider, does that, in your opinion -- and 

4 of course you're not counsel for Liberty, but 

5 from your own side, did that make -- change 

6 potentially the defenses that the Respondent 

7 must -- or may end up asserting? 

8 MR. STEVENSON: Well, I think it 

9 should change the defense that the the 

10 defense that they end up asserting, because it 

11 -- the admission that Mr. Schneider was the 

12 Director of Maintenance completely -- I mean, 

13 it completely eliminates the first affirmative 

14 defense that was raised by the Respondent. 

15 And so I think it should change the defenses 

16 they can raise to the extent that that is a 

17 defense that should be dropped. 

18 But that is also I think in 

19 hindsight it seems clear that's a defense that 

20 should never have been raised in the first 

21 place, because while it was news to me that 

22 Mr. Schneider was the Director of Maintenance 

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1 during this timeframe, this was not news 

2 and it may have been news to Mr. Goldstein, it 

3 was certainly not news to the Respondent that 

4 this individual was their Director of 

5 Maintenance. 

6 So that's -- effectively is that 

7 they should be dropping an affirmative defense 

8 that they should never have made in the first 

9 place. It does not add any affirmative 

10 defenses to their case. 

11 JUDGE SULLIVAN: At the time that 

12 you appeared and deposed Mr. Schneider in May 

13 2013, was he testifying as a current employee 

14 of Liberty Foundation or as a prior employee? 

15 MR. STEVENSON: I am not sure if 

16 anyone is actually an employee of the Liberty 

17 Foundation. I don't believe Mr. Schneider has 

18 ever been an employee. So, I mean, just for 

19 purposes of clarity, we are saying he is an 

20 agent. But I don't believe he was ever an 

21 employee. 

22 JUDGE SULLIVAN: Okay. 

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1 MR. STEVENSON: But my impression 

2 -- my understanding at the time was that at 

3 the time of the deposition he was their 

4 Director of Maintenance, although in a later 

5 conversation ln June opposing counsel 

6 indicated that they had a new Director of 

7 Maintenance, so I don't know when that change 

8 was made. 

9 So it's possible I could have been 

10 mistaken in believing that he was the Director 

11 of Maintenance at the time of the deposition . 

12 JUDGE SULLIVAN: Thank you. Let 

13 me ask you this. Clearly, the Respondent 

14 still needs to file an answer to the amended 

15 complaint. And the Respondent needs to file 

16 a response to your motion for summary 

17 judgment. 

18 Your response to the August 20, 

19 2013, motion for enlargement of time to 

20 respond to FAA's motion for summary judgment 

21 is actually not due in writing until the day 

22 after the response is supposed to be filed. 

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1 And I wanted to ask if you have any particular 

2 answer that you want to state today to that 

3 particular motion. 

4 MR. STEVENSON: Sure, Your Honor. 

5 Yes, I started writing something. And then 

6 when the conference call was scheduled, I 

7 figured we'd probably end up addressing it 

8 here. 

9 There are two new bases listed in 

10 the motion for enlargement of time, and then 

11 generally a reference back to the discovery 

12 motion. I think we have discussed the 

13 discovery motion enough. 

14 The two bases that are raised in 

15 the enlargement of time I think I also touched 

16 on. The first was that opposing counsel notes 

17 that he has -- he is moving his office next 

18 week, and it sounds like the office move 

19 begins on the day after the response deadline, 

20 and he's going to be spending that week 

21 preparing the office. 

22 I understand as a practical matter 

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1 why this would be inconvenient for opposing 

2 counsel and impede his ability to work on the 

3 response during that week, but I don't believe 

4 that a later scheduled conflict is an 

5 appropriate reason to change a deadline that 

6 was set seven months ago, especially when it 

7 you know, changing that deadline 

8 necessarily involves at least changing follow9 up deadlines. 

10 Opposing counsel specifically 

11 asked for a September 13th deadline for his 

12 judgment response, which obviously requires 

13 changing the agency's September 11th reply 

14 deadline, and I presume would require changing 

15 the September 9th and 19th motion conference. 

16 Now, I think it would be possible 

17 to rearrange those without moving the hearing, 

18 especially since, you know, having filed a 

19 summary judgment motion the agency believes 

20 that that can be handled, you know, on the 

21 motion, but I don't think that that's an 

22 appropriate basis. 

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1 And the other basis is simply the 

2 length of the motion. And, again, this is a 

3 -- the complexity of this case is not new. 

4 Opposing counsel was aware of the complexity 

5 of this case at the time we set the scheduling 

6 order and did not object to what the response 

7 deadline was going to be. 

8 He and I have discussed the fact 

9 that the agency was going to file a summary 

10 judgment deadline, so it should not have come 

11 as a surprise that one was going to be filed . 

12 And so I -- that does not seem like a basis to 

13 push back the response deadline, where pushing 

14 back that response deadline is going to 

15 interfere with other deadlines as well. 

16 Opposing counsel indicates that 

17 the agency had months to write this judgment 

18 motion. I mean, obviously, I have had the 

19 opportunity to consider the judgment motion as 

20 the case has progressed in the same way that 

21 I would think that any attorney who is 

22 conducting discovery in a case would be 

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1 thinking about how that would play into a 

2 possible judgment motion. 

3 But I certainly have not -- did 

4 not sit here and spend, you know, three months 

5 writing a judgment motion. I don't believe I 

6 actually started writing the judgment motion 

7 until August. So I think that it is both 

8 possible and appropriate to hold the 

9 Respondent to the deadline that was set seven 

10 months ago, or, at a minimum, to not extend 

11 the deadline any further than is possible 

12 without moving the hearing date. 

13 JUDGE SULLIVAN: Okay. Okay. 

14 Thank you. Is there anything else you'd like 

15 to add to your answer at this point, before I 

16 turn bpck to Mr. Goldstein? 

17 MR. STEVENSON: Not at this time, 

18 Your Honor. 

19 JUDGE SULLIVAN: Okay. Mr. 

20 Goldstein, let's turn to you. And I have the 

21 amended complaint before me, and I wanted to 

22 ask you to be a little more specific, if you 

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1 would be so kind, about which of these 

2 amendments you think requires additional 

3 depositions. 

4 MR. GOLDSTEIN: All of them, Your 

5 Honor, because 

6 JUDGE SULLIVAN: All of them. 

7 MR. GOLDSTEIN: Yes. The FAA 

8 JUDGE SULLIVAN: Well, let's 

9 start, then, because I'm I tend to be 

10 somewhat careful about, you know, how I'm 

11 looking at things. So there has been 

12 essentially an amendment to the complaint, and 

13 I would 5 (a) , 5 (b) , and then 5 (c) , 

14 essentially. 

15 So when you look at the amendments 

16 of 5 (a) and 5 (b) , can you tell me more 

17 specifically what depositions you need 

18 regarding these two amendments? 

19 MR. GOLDSTEIN: Well, actually, 

20 I'm looking at the sheet that I drew up that 

21 lists the new regulations cited. For me it's 

22 easier to do it that way, if you don't mind, 

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1 Your Honor. 

2 JUDGE SULLIVAN: Okay. 

3 MR. GOLDSTEIN: The new 

4 regulations alleged to have been violated are, 

5 first, 43.5(a), which in essence says that no 

6 person and by "no person" they are now 

·7 saying the Liberty Foundation -- may approve 

8 for return to certain aircraft that have 

9 undergone maintenance, preventive maintenance, 

10 and so forth, unless a record entry has been 

11 made . 

12 One, there is a fact determination 

13 to be made. Well, first of all, the FAA has 

14 to prove that no maintenance entry was made. 

15 JUDGE SULLIVAN: Okay. And for my 

16 purposes, that's basically-- and I'm looking 

17 at the amended complaint to see if I can give 

18 you a better sense of where I am. It becomes 

19 a little more difficult because there wasn't 

20 a complete amended complaint filed, so bear 

21 with me. 

22 Okay. I found it. Essentially, 

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1 the amendment 1s that Mr. Schneider did not 

2 make a maintenance record entry concerning the 

3 June 13, 2011, maintenance before returning 

4 the aircraft to serv1ce. So let's talk about 

5 that one. 

6 Mr. Schneider has already been 

7 deposed. He is presumptively one of your 

8 witnesses or someone that has volunteered or 

9 been an agent for your client. How is it that 

10 you would need more deposition time on this 

11 particular allegation? 

12 MR. GOLDSTEIN: Your Honor, I 1 m a 

13 little bit uncomfortable with this 1 because/ 

14 frankly/ I don 1 t want to say in front of Mr. 

15 Stevenson what I think he 1 s got to prove 

16 before I can ask questions of his witnesses. 

17 I'm very uncomfortable with that. 

18 JUDGE SULLIVAN: Okay. Well/ 

19 then/ let me change that. It sounds like 

20 you 1 re not asking you basically want to 

21 pull -- who is it that you want to depose 

22 about this? 

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1 MR. GOLDSTEIN: Well, for sure I 

2 want to depose Mr. Dodge, and probably Mr. 

3 Bourgoine, and the other person who had an 

4 affidavit was Mr. Soerens. But I may not have 

5 to depose him. 

6 The affidavits that were attached 

7 to the motion for summary judgment were all 

8 obviously written by Mr. Stevenson. I mean, 

9 they're virtually identical with certain 

10 differences of course. 

11 But from my perspective, Your 

12 Honor, it's the --you know, the regulations 

13 cited -- and I started to go into this -- the 

14 first one says, "No person may approve for 

15 return to service" and, again, they're 

16 saying now it's the Liberty Foundation 

17 "unless a maintenance record entry has been 

18 made." 

19 I want to know how they can prove 

20 that no maintenance entry was made. I don't 

21 think they can. And I don't want to go into 

22 why because I don't want Mr. Stevenson to go 

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1 back to these witnesses and say, "Hey, 

2 Goldstein said so-and-so. What's the deal 

3 there?" I don't want -- I'm uncomfortable 

4 doing that. 

5 JUDGE SULLIVAN: I understand. I 

6 do understand that. Let's talk about one of 

7 the other amendments. There is an amendment 

8 about Liberty Foundation being accused of 

9 being vicariously liable for the violations of 

10 Mr. Schneider. 

11 MR. GOLDSTEIN: Yes. 

12 JUDGE SULLIVAN: Presumptively, 

13 based on Mr. Schneider's testimony in May 2013 

14 that he was an agent or Director of 

15 Maintenance for your client. 

16 MR. GOLDSTEIN: Yes. 

17 JUDGE SULLIVAN: How is it that 

18 deposing the FAA inspectors would be I 

19 mean, who would you need to depose on the FAA 

20 side? It sounds like this is coming directly 

21 from Mr. Schneider's testimony. 

22 MR. GOLDSTEIN: Well, the issue of 

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1 vicarious liability is a fact-intensive issue, 

2 Your Honor. And, again, it is the FAA's 

3 burden to prove that the Liberty Foundation is 

4 vicariously liable for whatever Mr. Schneider 

5 did or didn't do. And I'd want to know what 

6 they know, what they can prove, because I 

7 think they are going down the wrong path with 

8 this allegation. 

9 And I don't think they can prove 

10 the fact bases for various liability. And I 

11 intend to ask their witnesses questions about 

12 that. And if they can't prove those things, 

13 or if they don't know, or if they are just 

14 guess1ng, you know, that's important. 

15 I don't have to prove anything. 

16 It's the FAA's burden to prove that the 

17 Liberty Foundation is vicariously liable. 

18 They have to put facts in the record that 

19 would establish that. All they have put in 

20 the record so far is that Mr. Schneider was 

21 the Director of Maintenance. Nothing as to 

22 what that means. 

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1 JUDGE SULLIVAN: Okay. I 

2 understand. Let's talk about the amendments 

3 that were made basically adding as allegations 

4 14 CFR 43.5(a), 14 CFR 43.9(a), 9(d) These 

5 were the allegations where there was an 

6 allegation that the plane had been approved --

7 or was returned to service essentially without 

8 being properly approved. 

9 And as I understand the original 

10 complaint, this is within the scope of the 

11 original complaint at least . 

12 MR. GOLDSTEIN: We denied those 

13 allegations. 

14 JUDGE SULLIVAN: Right. And those 

15 were denied. So in terms of your request for 

16 additional time for discovery, what in 

17 particular, if you can say, would you need to 

18 address in additional discovery in this? 

19 Since it seems to rise up out of facts that 

20 were already known in the original complaint. 

21 MR. GOLDSTEIN: Well, no, I don't 

22 believe they were, Your Honor. They were to 

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1 some extent, but not --you know, not totally. 

2 And these -- again, I'm uncomfortable being 

3 too specific in my answers. I just am. And 

4 I'm sorry, but I don't want to -- I mean, I 

5 don't want to say in front of Mr. Stevenson 

6 what I have in mind. 

7 JUDGE SULLIVAN: Well, I 

8 understand that you do not want to compromise 

9 your client's interests in presenting a 

10 vigorous defense. But it's up to you to 

11 strike a certain balance because you have to 

12 present at least some information to me that 

13 would support your position that you need 

14 additional time beyond the time frame 

15 currently set, not only to conduct discovery 

16 but to gain relief in the other motions that 

17 you have made. 

18 And I have heard from the FAA that 

19 essentially the five new regulations do not 

20 require any further discovery, that each of 

21 the new regulations involved performance or 

22 maintenance that was already discussed during 

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1 depositions and 1n the exchange of other 

2 discovery, and that there is no particular 

3 factual information that is new other than 

4 this vicarious liability charge, which arose 

5 in May and which your client has had notice of 

6 since the May 2013 deposition. 

7 So I am trying to gain a sense 

8 from your client in these questions to you why 

9 the FAA lS wrong or mistaken in that 

10 responsive presentation this morning and in 

11 its response that this Court read earlier, 

12 before the conference began. 

13 MR. GOLDSTEIN: Well, first, with 

14 respect to 43.5 (a) , I think I have just 

15 discussed that at some length. I think that, 

16 you know, there is an allegation that a proper 

17 maintenance entry wasn't made and that that's 

18 the fault of the Liberty Foundation. And that 

19 is a fact-intensive question with regard to 

20 vicarious liability. All of these allegations 

21 relate to that issue. That I'm willing to 

22 concede. They all relate to that 1ssue. The 

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1 one fact I will concede-- because it's not a 

2 concession, there is no question, it has never 

3 been a dispute -

4 (Telephonic interference.) 

5 JUDGE SULLIVAN: I'm sorry. I'm 

6 getting kind of a funny noise. 

7 VOICE RECORDING: This conference 

8 is scheduled to be disconnected automatically 

9 in 10 minutes. To extend the time, please 

10 dial 366-4000 to speak with a DOT operator. 

11 Ten . 

12 JUDGE SULLIVAN: Folks, it appears 

13 that the conference time 1s about to stop in 

14 about 10 minutes. And I want to make sure 

15 that we have ample time to finish. I am going 

16 to take a brief recess. I'm going to ask 

17 everybody to remain on the line while I get 

18 one of the staff to call the conference line 

19 and extend. So if you would give me just a 

20 few moments, I am going to do that. 

21 So with that, we can go off the 

22 record. And I will ask everybody to stay on 

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1 the line while I go get someone to take care 

2 of this. Thanks. 

3 (Whereupon, the proceedings in the 

4 foregoing matter went off the 

5 record at 11:52 a.m. and went back 

6 on the record at 11:57 a.m.) 

7 JUDGE SULLIVAN: We're back on the 

8 record in the matter of Liberty Foundation, 

9 Inc. This is Docket Number FAA-2012-0477. 

10 We have reconvened after 

11 approximately a four-minute recess. During 

12 that time, the conference call coordinator was 

13 contacted, and we have extended the time for 

14 our conference call, so that we can finish the 

15 motion arguments in this case. 

16 Mr. Goldstein, you were about to 

17 tell us a little bit more about the specifics, 

18 as best you can, as to why the FAA is mistaken 

19 ln its perception that the amended complaint 

20 doesn't essentially create any particular new 

21 facts or evidence that would require an 

22 extension of time in this case for your to 

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1 respond. Please continue. 

2 MR. GOLDSTEIN: Are we talking 

3 about respond to the motion for summary 

4 judgment, Your Honor, or --

5 JUDGE SULLIVAN: No. The motion 

6 for summary judgment is not before the table 

7 at this time. Essentially, what I was hearing 

8 from the FAA, as we were talking before I had 

9 to take that brief recess, is that the FAA is 

10 saying that it opposes your motion to stay or 

11 revise the litigation schedule because the new 

12 allegations in the amended complaint do not 

13 rise to the level of a necessity of more time 

14 for you. 

15 MR. GOLDSTEIN: Okay. 

16 JUDGE SULLIVAN: The FAA opposes 

17 your motion to allow more discovery on the 

18 amended complaint for the same reason. The 

19 FAA opposes essentially your motion for more 

20 time to respond to the summary judgment for 

21 different reasons. But I'd like you to focus 

22 1n on the FAA's arguments regarding your 

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1 motions that you filed on August 7, 2013, 

2 first. Can you do that for me? 

3 MR. GOLDSTEIN: Yes. Yes, Your 

4 Honor. The FAA, in its response to my motion, 

5 says the amendments relate to three things. 

6 One, that the aircraft was unsafe for flight 

7 after the February 2011 alterations. Second, 

8 that there was no maintenance entry made prior 

9 to the June 13, 2011 flight. That 1s a new 

10 allegation. That was not in the original 

11 complaint. And, third, that the Liberty 

12 Foundation is responsible for Mr. Schneider's 

13 alleged violations. That's new. 

14 So two of the three reasons, 

15 according to the FAA's response, for the 

16 amended complaint are new. And I believe I 

17 have an absolute right to do discovery on 

18 those issues. They are new, and I am not at 

19 all satisfied that the record is complete with 

20 regard to those allegations. I have questions 

21 to ask about those allegations. 

22 So that's two of the three reasons 

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1 for the amendment are new, Your Honor, in the 

2 amended complaint. I have some other 

3 responses, unrelated to that question, which 

4 are, you know, from some of the things Mr. 

5 Stevenson said about the response to the 

6 summary judgment. 

7 JUDGE SULLIVAN: Well, let's talk 

8 a little bit more about this because you have 

9 focused me ln on the FAA's response ln 

10 opposition to the Respondent's discovery 

11 motion. And I'm on page 3. And immediately 

12 after the FAA identifies what it asserts are 

13 the three elements in the amended complaint, 

14 it also asserts that all of the facts were 

15 admitted by Mr. Schneider during his May 2013 

16 deposition. Do you agree or disagree with 

17 that? 

18 MR. GOLDSTEIN: Absolutely 

19 disagree with that. 

20 JUDGE SULLIVAN: Okay. There lS 

21 also some assertions by the FAA on page 3 of 

22 its response in opposition to your motion that 

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1 the discovery that you are asking for is 

2 basically already within your control and has 

3 been within your control even prior to the May 

4 2013 deposition, and does not justify further 

5 discovery on behalf of your client. Could you 

6 nswer that, please? 

7 MR. GOLDSTEIN: Yes. Again, it is 

8 ot my burden to prove anything. It is the 

9 AA's burden to prove these allegations 

10 egarding the Liberty Foundation being 

11 esponsible for Mr. Schneider's alleged 

12 iolations. And I have a right to do 

13 1scovery on that. I don't want to go into 

14 ther detail about my theory on it, though. 

15 I mean, as I said before, Your 

16 onor, the sole factor that the FAA relies on 

17 s Mr. Schneider had this title, in quotes, 

18 'Director of Maintenance." That's all. 

19 hat's entirely what they rely on. I 

20 uarantee you there are other facts that I can 

21 iscover with regard to that from the FAA or 

22 hat they do or don't know about the operation 

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1 f the Liberty Foundation, its officers, 

2 irectors, and so forth. That's more than I 

3 ant to say. 

4 JUDGE SULLIVAN: Okay. Anything 

5 lse that you would like to add to your reply 

6 o the Respondent's -- I'm sorry, to the FAA's 

7 esponse on the August 7, 2013 motion? 

8 MR. GOLDSTEIN: The written 

9 esponse, no. I do have some responses to 

10 hat Mr. Stevenson said. But to the written 

11 esponse, no, Your Honor . 

12 JUDGE SULLIVAN: Okay. Well, 

13 hen, please continue. 

14 MR. GOLDSTEIN: Okay. The 

15 ssertion that I somehow have scheduled this 

16 ove when I knew all along that there was 

17 oing to be a -- that this schedule had been 

18 n place since January is absurd. I mean, I 

19 ave no control whatsoever of this move. I 

20 as told in mid-summer -- I rent space from a 

21 arge firm -- that they were giving up this 

22 pace that I'm in. 

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1 Me and several other lawyers are 

2 o1ng to move to another place. This was 

3 ecided within the last couple of months. And 

4 he moving date was only decided within the 

5 ast several weeks, and so I had no control 

6 hatsoever over anything related to my move. 

7 'm distressed that I have to move after being 

8 ere for.14 years. So I have no control over 

9 t at all. 

10 In terms of responding to the 

11 ,otion for summary judgment, I need to get --

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

o gather some deposition -- I'm sorry, some 

ffidavits from my own folks to respond to 

tome of the affidavits and other allegations 

1n the motion, and that is going to take some 

I 

ime and-- it's just going to take some time. 

Now, I don't know how much time 

but it will take some time for me to 

eet with the people that I need to get the 

ffidavits from and to have the affidavits 

repared and submit ted 1n response to the 

ummary judgment. ! can't do that basically 

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I 

, n the next three days or two days. It's 

2 :mpossible. And let's see what else. And I I 

3 uppose I've said everything else at one point 

4 

5 

6 

fr another, Your Honor, 

this conversation. 

at some point during 

JUDGE SULLIVAN: Okay. Let me ask 

7 'fOU a question, Mr. Goldstein. Have you found 

8 ~ new office yet? 

9 

10 

11 

12 

I 

I 

I 

I 

~e I 

MR. GOLDSTEIN: Yes. 

JUDGE SULLIVAN: Okay. Will you 

sure and send us the address? Will you be 

~etting your mail forwarded? How are we going 

13 to contact you after next week? 

14 

15 

16 

17 

18 

19 

20 

21 

22 

MR. GOLDSTEIN: Well, my phone 

will be the same, but I will certainly send in 

~ change of address notice in all of the cases 

Jhat I have. I can give it to you orally if 

Jou'd like, and Mr. Stevenson, if you'd like, 

1 

I 

~ut 

i 

I JUDGE SULLIVAN: Actually, I would 

{ike to have it orally and to get something in 

lriting, if you --

1 

I 

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1 MR. GOLDSTEIN: I'll send in a 

2 notice this afternoon, but it's 7300 

3 JUDGE SULLIVAN: Okay. 

I 

4 

5 

I 

~-E-N-D-A-L-L, Drive, Suite 380, Miami, 33156. 

MR. GOLDSTEIN: -- North Kendall, 

6 And my phone is the same. My fax is going to 

7 change. It will be (305) 400-0685. 

8 JUDGE SULLIVAN: Thank you very 

9 much. And that's apparently effective as of 

10 August 30, 2013? 

11 MR. GOLDSTEIN: Well, we're moving 

12 Friday and Saturday, so it will be effective 

13 yes, hopefully we'll have phones and 

14 everything up and running on Labor Day or the 

15 day after Labor Day. That's the hope. 

16 JUDGE SULLIVAN: Okay. Thank you. 

17 Okay. I'm going to take a look at my notes. 

18 (Pause.) 

19 Okay. Folks, I'm going to ask you 

20 for your patience. I'm going to be looking --

I I want to look at one thing more, and that's 

I 

21 

22 going to take me a minute or two. 

I 

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1 (Pause.) 

2 Okay. All right. Thank you very 

3 much for your patience, everyone. 

4 What I'm going to do is, in terms 

5 of the August 7, 2013, Respondent combined 

6 motion, I will find that, based on the 

7 arguments that are before me, that the motion 

8 to order the FAA to disclose its witnesses and 

9 documentation on the amended complaint has 

10 been addressed at this conference, with the 

11 FAA confirming that all documentation and 

12 witness disclosure previously provided to 

13 Respondent encompasses the new allegations 1n 

14 the FAA's amended complaint on July 31, 2013. 

15 Number two, I will find that the 

16 Respondent is directed, then, to answer the 

17 complaint, the amended complaint, and that the 

18 Respondent should answer the amended complaint 

19 no later than September 13, 2013. 

20 And I am giving the Respondent a 

21 few extra days beyond the 15 days typically 

22 allowed in part because of the Labor Day 

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1 weekend, and in part because of the office 

2 move that was not within the Respondent 

3 counsel's control. 

4 In terms of the motion to allow 

5 more discovery, limited discovery, on the new 

6 issues raised in the amended complaint, and 

7 the motion to stay or revise the scheduling 

8 order due to the new allegations in the 

9 amended complaint, I am going to grant that 

10 request with some limitation. 

11 And I'm going to grant it in part 

12 because I think the Respondent has identified 

13 good cause for a continuance for an 

14 enlargement of the summary judgment motion 

15 because of, particularly, the off ice move that 

16 has been imposed upon counsel, and in part 

17 because I took a look at the summary judgment 

18 motion, and it is a fairly large one, and I 

19 know that this Court would be happy to address 

20 that challenge as opposing counsel, but would 

21 have wanted more time were I opposing counsel, 

22 and so I can understand that motion. 

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1 And as I look at my calendar and 

2 what my trial calendar is like, and as I 

3 calculated the time if I extended the time for 

4 the answer, for both the Respondent and the 

5 FAA to file a reply, and to then schedule this 

6 for oral argument, I find that I cannot do it 

7 prior to the November 5, 2013, first day of 

8 hearing scheduled in Atlanta, Georgia. 

9 I do not want to put the parties 

10 1n a position where they cannot have oral 

11 argument, and I certainly don't want to g1ve 

12 that up for this Court's own purposes, since 

13 I find oral argument very helpful. 

14 In addition, if I schedule oral 

15 argument at a short set, it puts the parties 

16 in a position where they have to prepare for 

17 trial prior to the Court issuing a decision on 

18 the summary judgment, which creates wasted 

19 time potentially if all or part of the motion 

20 for summary judgment is granted. 

21 So, given all of those facts, I 

22 will grant the Respondent's motion to revise 

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1 the scheduling order to a limited degree, and 

2 I will also grant the Respondent's motion to 

3 allow more discovery, to a limited degree. 

4 What I need to do, though, is talk 

5 to you both about your calendar availability 

6 and your witness availability for moving the 

7 trial out past November 5, 6, and 7, into a 

8 different week. And I know that puts us in 

9 the weeks of Christmas and Hanukkah, and other 

10 calendar holidays, and I don't want to create 

11 family problems for anyone either . 

12 So I'm going to turn to the FAA 

13 counsel first. Mr. Stevenson, if we do a 

14 short continuance of the trial that is 

15 currently scheduled for November 5 through 7, 

16 2013, into early 2014, do you have time 

17 available -- oh, dear. It looks to me maybe 

18 I should start and tell you folks what my time 

19 availability is. 

20 (Pause.) 

21 I know that some of these trials 

22 are going to settle. I just don't know which 

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1 ones. I think that's everybody's conundrum. 

2 My first open week is April 21, 2014. Mr. 

3 Stevenson, what is your calendar availability 

4 in the month of April 2014? 

5 MR. STEVENSON: It has Good Friday 

6 and Easter on it, and I don't -- other than 

7 that, neither of which affects my availability 

8 for this, so I have effectively nothing on my 

9 calendar for April of 2014. 

10 JUDGE SULLIVAN: Mr. Goldstein, do 

11 you have time available the week of April 21, 

12 2014? 

13 MR. GOLDSTEIN: Completely, Your 

14 Honor. 

15 JUDGE SULLIVAN: Okay. Why don't 

16 we do this. Why don't we plan on the week of 

17 April 21, 2014, for the new trial dates. And 

18 currently in November we had Tuesday, 

19 Wednesday, and Thursday, as our trial dates. 

20 Do you want to still keep those three days, or 

21 do you want to expand into a fourth day 

22 because of the new allegations? And I'll 

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J 

1 start with you, Mr. Stevenson. 

2 MR. STEVENSON: I do not believe 

3 that any additional time is necessary as -- I 

4 mean, as the agency has reiterated, Mr. 

5 Schneider's deposition testimony establishes 

6 these things, and that -- there is not going 

7 to be a bunch of additional testimony on them. 

8 JUDGE SULLIVAN: Okay. Mr. 

9 Goldstein, turning to you, same question. 

10 Three days of trial, or.four? 

11 MR. GOLDSTEIN: Well, I think 

12 three days is enough, Your Honor. But if we 

13 don't do it in three days -- in other words, 

14 if we scheduled four and only used two, that 

15 would be better than scheduling three and not 

16 finishing. 

17 JUDGE SULLIVAN: Okay. All of us 

18 will be traveling to the Atlanta, Georgia 

19 site, I think. No. Mr. Stevenson, you're 

20 already in Atlanta, Georgia, are you not, or 

21 close by? 

22 MR. STEVENSON: Yes. 

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1 JUDGE SULLIVAN: Okay. Then, Mr. 

2 Goldstein, turning to you, if we schedule 

3 Tuesday, Wednesday, Thursday, and part of 

4 Friday, would traveling back on Saturday be 

5 acceptable to you? 

6 MR. GOLDSTEIN: Yes, Your Honor. 

7 JUDGE SULLIVAN: Okay. Then, 

8 let's do that. We'll schedule the trial from 

9 April 22, 2014, which is a Tuesday, through 

10 Friday, April 25, 2014, with Saturday as a 

11 potential travel day. And then, if the 

12 parties find that you don't need all of that 

13 time prior to the hearing, please let me know. 

14 If we find at the hearing that we don't need 

15 all of that time, we will know that, too. 

16 So let's talk about rescheduling a 

17 little bit the due dates on the calendar that 

18 have not already been exercised. And 

19 essentially one of the things that we need to 

20 schedule -- and we're going to back-schedule 

21 I think is the easiest way -- some of the due 

22 dates. 

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1 So we have an answer that needs to 

2 be filed to the amended complaint on or before 

3 September 13, 2013. Let' s try and do the 

4 summary judgment response. And, Mr. 

5 Goldstein, let's look at -- can you have a 

6 response by September 27, 2013, or do you need 

7 a little extra time? 

8 MR. GOLDSTEIN: If I may suggest, 

9 Your Honor, it might be wiser to set a 

10 deadline for the discovery first. 

11 JUDGE SULLIVAN: Oh, yes. Thank 

12 you. You're absolutely right. Do you have a 

13 suggestion, Mr. Goldstein? 

14 MR. GOLDSTEIN: Well, I think I 

15 had said earlier, you know, six weeks at the 

16 outside for getting transcripts, and so forth, 

17 back. In other words, complete the discovery 

18 and getting transcripts and everything done 

19 within six weeks certainly ought to be enough 

20 time. 

21 JUDGE SULLIVAN: Okay. So do you 

22 have a specific date that you want to offer 

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1 me? 

2 MR. GOLDSTEIN: Let me just look 

3 at the calendar again. 

4 MR. STEVENSON: I apologize, Your 

5 Honor. Before Mr. Goldstein takes the time to 

6 look at that, because of the time-frames that 

7 we are talking about, my wife is expecting and 

8 1s due on October 5th. 

9 JUDGE SULLIVAN: Okay. 

10 MR .. STEVENSON: And it ' s - - and 

11 given medical history, there is -- it is very 

12 uncertain when exactly the baby is go1ng to 

13 come, but it's probably not going to last 

14 at this rate, it's probably not going to last 

15 that long. So it's kind of fraught with peril 

16 for me to try to schedule depositions during 

17 September. 

18 JUDGE SULLIVAN: Okay. Then, Mr. 

19 Stevenson, why don't we turn to you, because 

20 you have a personal matter that takes 

21 precedence. Why don't you suggest to us what 

22 would be comfortable for you in terms of 

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1 conducting discovery, what your outside date 

2 you think ~auld be, and then we can do the 

3 summary judgment scheduling. 

4 MR. STEVENSON: If we are going to 

5 do depositions, frankly, the way I've been 

6 doing my scheduling, although I obviously 

7 really do not want the case to be pushed back 

8 any further than necessary, I have been -- I 

9 have started scheduling things starting the 

10 week of October 28th. 

11 JUDGE SULLIVAN: Okay. 

12 MR. STEVENSON: If we schedule it 

13 sooner than that, it's sort of a, well, it's 

14 possible I'll be able to make it, but I don't 

15 really want to be calling things off at the 

16 last minute because of, you know, baby status. 

17 JUDGE SULLIVAN: Okay. So let me 

18 ask you this, Mr. Stevenson. Let's say that 

. 

19 we had a discovery completion date of December 

20 20, 2013. And, obviously, there may not be 

21 much to do in any particular deposition with 

22 this very limited discovery, because the 

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1 discovery is going to be limited only to the 

2 new allegations, essentially. If December 20, 

3 2013, is the due date for discovery, would 

4 that be enough time so that you can schedule 

5 things comfortably with the new baby? 

6 MR. STEVENSON: That should not be 

7 a problem, Your Honor. 

8 JUDGE SULLIVAN: Okay. Mr. 

9 Goldstein, would that work for you? 

10 MR. GOLDSTEIN: Yes, Your Honor. 

11 JUDGE SULLIVAN: And, Mr . 

12 Stevenson, would you be available for any 

13 kinds of limited discovery -- I heard you say 

14 something about not available in October. Are 

15 you not available in September either? 

16 MR. STEVENSON: Well, I'm -- what 

17 I'm except for -- for the most part, except 

18 for conferences that have been scheduled by 

19 Your Honor, of which I have three scheduled in 

20 September, I haven't scheduled anything else 

21 new 1n September. 

22 I live nearby the office, and I 

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1 can do -- I mean, so I can be involved in 

2 discovery, and it should be possible I 

3 mean, if we're talking about things where I 

4 have, you know, a couple of weeks to get 

5 around to something, that shouldn't be a 

6 problem for me to get in and get something 

7 done. It's just if something gets put a date 

8 certain -- I mean, we can schedule something 

9 on a date certain, it's just kind of up in the 

10 air if it's during September or early October. 

11 JUDGE SULLIVAN: Okay. Okay. 

12 Well, then, what I will do is I will leave it 

13 to counsel, the two of you, to work out 

14 arrangements that are comfortable for both of 

15 you, with the understanding that any limited 

, 16 discovery initiated by the Respondent will 

17 need to be completed no later than December 

18 20, 2013, and that limited discovery means 

19 essentially it is discovery that is directly 

20 related to the new allegations. It is not 

21 covering old ground, and I'm sure you both 

22 understand that. 

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1 So after December 20, let's talk 

2 about a response to the FAA's motion for 

3 summary judgment. Mr. Goldstein, let's talk 

4 about a date in January for you to file your 

5 response, and then we' 11 talk to Mr. Stevenson 

6 about a date for his reply, and then we'll set 

7 up a new telephone argument. 

8 So, in January, when do you think, 

9 Mr. Goldstein, that you could file a response 

10 to the motion for summary judgment with 

11 discovery having concluded no later than 

12 December 20, 2013? 

13 MR. GOLDSTEIN: What I would say 

14 on the -- out of caution, Your Honor, on the 

15 assumption that discovery finished on 

16 December 20th, and it took two weeks to get a 

17 transcript, let's say, that would be the first 

18 week of January. I would say the end of 

19 January, then. 

20 JUDGE SULLIVAN: And can you give 

21 me -- are you talking about any particular 

22 date? Or do you just want me to choose one 

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1 for you? 

2 MR. GOLDSTEIN: The 31st 1s the 

3 last Friday of the month of January. 

4 JUDGE SULLIVAN: Okay. And let's 

5 say your response is due on or before January 

6 31, 2014. And then, Mr. Stevenson, let's look 

7 at February for your reply, if any. Do you 

8 have a particular date in February that would 

9 be comfortable for you, looking at your 

10 schedule? 

11 MR. STEVENSON: I don't think 

12 there's any-- there's no particular day that 

13 is good. I think the prior deadline after the 

14 response to the reply was 11 days or 13 days. 

15 Something like that is fine. I am -- I guess 

16 the one -- as long as we -- you know, because 

17 we are going to-- you know, the next step is 

18 we start getting to the other deadlines. 

19 We are starting to get into the 

20 place where we -- based on what the deadlines 

21 were before, that we may be getting into 

22 territory that I don't know if we're far 

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1 enough out from that April 21st date. So I'm 

2 not particularly concerned about the 

3 exactly when it's due in February. I could 

4 have it -- I mean, I can have it done 1n -- I 

5 think 10 or 11 days is should be more than 

6 enough, but I don't know if we might want to 

7 look back at the January 31st deadline, if it 

8 needs to be that late in January. 

9 JUDGE SULLIVAN: I understand. 

10 Because we're looking at not only the 

11 telephone motion conference, but we are also 

12 looking at brief filing and the exchange of 

13 witness lists and exhibits. So why don't we 

14 set those, and then we can kind of play a 

15 little bit more with this particular deadline. 

16 So looking at April 22, 2014, 

17 let's say that the last date to file 

18 prehearing briefs would be April 8, 2014. And 

19 then we would be looking at March 31 

20 actually, I'm sorry, it would be March 25, 

21 excuse me, March 2 5, 2 014, for the exchange of 

22 witness lists. 

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1 I think we're good. Mr. 

2 Stevenson, let's talk about maybe having you 

3 file your reply by February 13, 2014. And 

4 then let's talk about maybe having a summary 

5 judgment oral argument the week of February 

6 23rd. Starting with you, Mr. Stevenson, do 

7 you have any blocked out times during that 

8 week? 

9 MR. STEVENSON: The week of 

10 February 23rd? Is that correct? 

11 JUDGE SULLIVAN: The week of 

12 February 23rd 1s Sunday 1s the 23rd of 

13 2014, Monday starts with February 24, 2014, 

14 and so forth. 

15 MR. STEVENSON: I do not have 

16 anything blocked out during that week. 

17 JUDGE SULLIVAN: Okay. Mr. 

18 Goldstein, how about you? 

19 MR. GOLDSTEIN: I'm wide open that 

20 week, Judge. 

21 JUDGE SULLIVAN: Okay. Why don't 

22 we just plan on Wednesday, February 26th. 

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1 Well, actually, let's say Thursday, excuse me, 

2 February 27, 2014, for oral arguments on the 

3 summary judgment motion. And then that gives 

4 me about two weeks or less. I'll say two 

5 weeks. That will give me about two weeks to 

6 issue a ruling prior to your need to file and 

7 exchange your witness lists. So I think we'll 

8 be okay. So right now -- I'm sorry? 

9 MR. GOLDSTEIN: It would give you 

10 about a month, Your Honor, so 

11 JU.DGE SULLIVAN: Well, February 

12 27th, with your witness list due on March 25, 

13 2014, really doesn't, because I want to get 

14 the summary judgment motion out -- the ruling 

15 on summary judgment out before you have to 

16 compile all of your exhibits. 

17 MR. GOLDSTEIN: Okay. 

18 JUDGE SULLIVAN: And so I don't 

19 want to send it out the day before you have to 

20 file everything between each other. That's 

21 kind of unfair to you. So, but hopefully that 

22 -- I think that will be fine, because I'll 

NEAL R. GROSS 

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1 have enough time to take a look and make some 

2 decisions, preliminary decisions. So this 

3 works out beautifully. 

4 In terms of the time on 

5 February 27, 2014, we had originally had a 

6 time for oral arguments, let's see, at 2:00 

7 p.m. Do you want to stay with an afternoon 

8 time, or is morning better? Mr. Stevenson? 

9 MR. STEVENSON: It is indifferent. 

10 I'm indifferent. 

11 JUDGE SULLIVAN: Okay. Mr. 

12 Goldstein? 

13 MR. GOLDSTEIN: Same. 

14 JUDGE SULLIVAN: Okay. Let's just 

15 plan on 2:00p.m., again, on February 27, 

16 2014, for oral arguments and-- 2:00 to 3:00. 

17 And since oral argument on so much can take 

18 some time, let's plan on 90 minutes, so that 

19 you all know and I don't impose upon your 

20 generosity by extending a conference like I 

21 did today, without prior notice to you. 

22 So 2:00 to 3:30 on February 27, 

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1 2014. April 8, I'm sorry, March 25, 2014, the 

2 exchange of witness lists and exhibits. April 

3 8, 2014, for prehearing briefs to be filed. 

4 And then we' 11 see each other on Tuesday, 

5 April 22, 2014, for our first day of hearing. 

6 Mr. Stevenson, anything else we need to look 

7 at or add to the calendar at this point? 

8 MR. STEVENSON: I don't believe 

9 so, Your honor. 

10 JUDGE SULLIVAN: Okay. Mr. 

11 Goldstein, how about for your client? 

12 MR. GOLDSTEIN: No. I'm just 

13 looking at Your Honor's January order to see 

14 if --

15 JUDGE SULLIVAN: Yeah, I have it 

16 in front of me as well. 

17 MR. GOLDSTEIN: No, I don't think 

18 so, Your Honor. 

19 JUDGE SULLIVAN: Okay. What I 

20 will do is I will send out a new litigation 

21 scheduling order that is based on what I have 

22 ruled today and what we have talked about in 

NEAL R. GROSS 

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1 terms of our calendar availability. And then 

2 I will also send out a written order codifying 

3 the Court's oral rulings on today' s discussion 

4 of all the motions. And I will probably send 

5 both of those out next week because I'm a 

6 little understaffed here today. Almost 

7 everybody is gone. So with that, I'm going to 

8 thank both of you for your presence today and 

9 for all of your work on this case so far. 

10 Mr. Goldstein, good luck in your 

11 office move next week. Mr. Stevenson, good 

12 luck with the birth of the baby. Hopefully, 

13 it's fast and easy and the baby sleeps through 

14 the night immediately. 

15 (Laughter.) 

16 So with that, Mr. Stevenson, on 

17 behalf of the FAA, anything else we need to 

18 address for your client today before we stop? 

19 MR. STEVENSON: Not that I can 

20 think of, Your Honor. 

21 JUDGE SULLIVAN: Okay. And, Mr. 

22 Goldstein, on behalf of Liberty Foundation, 

NEAL R. GROSS 

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1 Inc., anything else we need to address for 

2 your client today? 

3 MR. GOLDSTEIN: No, Your Honor. 

4 Thank you for your time. 

5 JUDGE SULLIVAN: You're welcome. 

6 Thank you both very much for your time. It 

7 appears our business is complete. 

8 We can go off the record, and I 

9 wish you all a good day. 

10 (Whereupon, at 12:33 p.m., the 

11 proceedings in the foregoing 

12 matter were concluded.) 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

NEAL R. GROSS 

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Neal R. Gross & Co., Inc. 

202-234-4433 
• 

• 

• 

89 

C E R T I F I C A T E 

This is to certify that the foregoing transcript 

In the matter of: FAA v. Liberty 

Before: USDOT 

Date: 08/23/2013 

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 

NEAL R. GROSS 

(202) 234-4433 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISlAND AVE., N.W. 

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