U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATIONADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. LIBERTYFOUNDATION, Respondent. DocketNo. FAA-2012-0477 FAA CaseNo. 2011GL030070
Judge Sullivan
FAA'SRESPONSE IN OPPOSITION TORESPONDENT'S MOTION TO CONTINUE TRIAL DATE The FAA, by and through undersigned counsel, hereby responds m opposition to Respondent's Motionto Continue Trial Date. In its Motion, Respondent requests a third continuance ofthe hearing date in this case. The current request for a continuance is based on the unavailability ofRespondent's Executive Director at hearing due to a military deployment. Inits Motion, Respondent argues that "serious prejudice" will result ifthe continuance is not granted. Respondent asserts without specification that its attorney "requires Mr. Fowler's presence in preparation for trial, at the trial as his representative and as an important witness" and that "ifthe continuance is not granted
... it will not have the benefit of Mr. Fowler's experience and expertise as its trial representative and '**~** ·, l witness." Motion at 2-3. However, Respondentprovides no particular information as to how Mr. Fowler's**abseil~~**

### will**prejudi~e** it, or why his absence cannotbehandled without granting athird continuance ofthehearing date.
'' ,. ., . ' I'**H.~**
1As noted above,**Respond~nt**presents three broadreasons why itwillbeprejudicedifMr. Fowler is not present. None ofthe three reasons presented will actually result in any prejudice. First, Respondent asserts that Mr. Fowler is required for trial preparation, but according to Respondent's own Motion, Mr. Fowler will be available until approximately a week before the hearing. Given that all pre-trial submissions are due well beforethatpoint, Mr. Fowler shouldbe available for all pre-hearing preparations, and no prejudice will arise. Additionally, even ifMr. Fowler was not available, no reasonis apparent why Mr. Fowler would be needed at all for trial preparation. Second, Respondent asserts that Mr. Fowler is required as a "representative" at hearing, but it is not apparent from the Motion, or from the undersigned's understanding ofthis matter, why Mr. Fowler's presence would be necessary. There are technical matters in this matter that may require assistance during hearing, but this case is focused on aircraft maintenance and, to the undersigned's knowledge, Mr. Fowler is a pilot, not a mechanic, and could not provide expertise on the subject. Additionally, it is unclear why opposing counsel could not rely on another individual for any expertise necessary during the hearing. By the time of hearing Respondent will have had four months to identifY an appropriate individual inthe event it does not already have one available. Itis also worth emphasizing that Mr. Fowler is not the Respondent inthis matter. This is noteworthyfor two reasons. First, there is no apparentreason whyRespondent's owner, or some other individual designated by Respondent, could not attend the hearing on Respondent's behalf. 1For example, opposing counsel has served as Respondent's representative in a non-legal capacity in other matters. Second, it means that the Service Members Civil ReliefAct (SCRA)

1 Ofcourse Respondent, as a corporate entity, cannotpersonally attend ahearing, andmay only attendviaa representative. 2has no relevance to this proceeding. While the SCRA serves an important purpose, that purpose is to protect service members, not corporate entities with whom they are involved. The SCRA

- including the language cited by Respondent in its Motion, see Motion at 3, expressly only applies when the service member is a party in the case. Indeed, the stay language referenced by Respondent is immediately proceeded by the language "In an action covered by this section in which the defendant is in military service." The SCRA has no applicability, and Respondent can identify another representative to attendthe hearing, and no prejudice will result. Third, Respondent asserts that Mr. Fowler is necessary as an "important witness," but Respondent provides no information as to why Mr. Fowler's testimony is important, and Respondent's representations in discovery indicate that there was no relevant, material subject matter on which Mr. Fowler was to testify. In discovery, Mr. Fowler was identified as awitness, butthe totality ofthe "detailed summary" ofhis testimony was as follows: Mr. Fowler may testify as to his position as Chief Pilot for The Liberty Foundation, his familiarity withthe operations ofthe B-17, [and] his participation in a telephone conference call(s) with Mr. Alderman and Mr. Miller discussing the fuel tankissue. Respondent's Response to FAA's First Discovery Requests, Interrogatory #4 (Attached as Exhibit A).2 Mr. Fowler's position as ChiefPilot for Respondent is not at issue inthis case. Mr. Fowler's familiarity with B-17 operations is not at issue in this case, and as a lay witness he could not give expert testimony on B-17 operations even if they were at issue. The third proposed topic of testimony, a conversation with two FAA inspectors, is immaterial, as has already been addressed in the FAA's Motion for Summary Judgment. See FAA's Motion for Summary Judgment at 37-39. According to Respondent's representations, it intends to have Mr. Fowler testify that during a conversation with two FAA inspectors, these inspectors informed

2Mr. Fowlerwas notidentifiedas a possible witness as to anymatters contained in tbe later-filedAmended Complaint. 3him that the removal ofthe bladder fuel tanks from the B-17 and the fabrication ofnew fuel tanks from existing aluminum shells and other fabricated components was a minor repair rather than amajor alteration. Respondent argues thatthis conversationrelieves it from any liability for violating the maintenance requirements applicable to major repairs and alterations. See Answer at Second Affirmative Defense. As discussed in the FAA's Motion for Summary Judgment, the alleged contents ofthis conversation are not material because evenifthe conversationtookplace
as alleged by Respondent (which it did not), this does not form an affirmative defense

- it is simply not the case that an oral opinionby an individual FAA employee absolves Respondent of its responsibility to followtheFederalAviationRegulations. Additionally, even if Mr. Fowler's testimony as a witness was necessary, despite the immateriality ofhis proposed testimony, it is unclear why there would be prejudice ifhe did not give thattestimony at hearing. As Respondent notes in its Motion, see Motion for Continuance at 2 n.2, Mr. Fowler's deposition has already been taken in this case. That deposition covered his conversation with Inspectors Miller and Alderman, and could be used at hearing in lieu oflive testimony. Furthermore, the undersigned notes that the issue of Mr. Fowler's absence on the current hearing date arose during a discovery period that was created at Respondent's request because Respondent indicated that it needed a hearing continuance to take depositions.3 If Respondent was not satisfied with Mr. Fowler's existing testimony regarding the conversation, Respondent provides no explanation for why it did not attempt to use this deposition period to preserve Mr. Fowler'stestimony now, ratherthan simply seeking athird continuance. It is Respondent's burden to demonstrate that good cause exists for a continuance, and here Respondent has identified no cause. Respondent has failed to demonstrate that good cause

3 Despite its representations when requestingthe continuance, Respondenthas not sought or conducted any depositions duringthis discovery period. 4exists to grant it a third continuance ofthe hearing inthis matter. Although it has asserted that it would be prejudiced by the failure to grant a continuance, it has not actually specified in what way itwould be prejudiced. Ithas asserted that the FAA cannotbeprejudicedby a simple delay, but the FAA must respectfully disagree. This is the third request for a continuance from Respondent, arequest that would necessarily delay any hearing inthis matter4 until2015, over a year and ahalfafterthe originally settrial date. The FAA has, as does any regulatory agency, an interest in having the consequences for a Respondent's violations follow more quickly upon the heels ofits misconduct. While delay maybe necessary for investigation and litigation, this does not mean that the delay does not matter. This is especially true where, as here, this is a Respondent's third request for a continuance, where the first two requests have already resulted inadelay ofayear from the originalhearing date. Insum, withregards to Mr. Fowler's non-witness role, Respondenthas notpresented any
reason why any prejudice would result to it, much less "serious prejudice." With regards to Mr. Fowler's role as a witness, Respondent has identified no basis for why Mr. Fowler is now an "important witness" when the subject matters that he has been identified as testifying about are all irrelevant and immateriaL Further, even ifMr. Fowler's testimony was relevant and material, his testimony onthe subject already exists and couldbe used inlieu oflive testimony athearing. Respondent has failed to present good cause for granting it a third continuance and delaying any hearing inthis matteruntil 2015.

4As presented in the FAA'sMotion for Summary Judgment, nohearing is necessary inthismatter. 5WHEREFORE, the FAArespectfully requests thatthe Respondent's Motion to Continue Trial Datebe denied.

## f\~ Respectfully submittedthis_0_day ofJanuary, 2014.

CHRISTOPHERR. STEVENSON Attorney Office ofthe Regional Counsel

6CERTIFICATE OF SERVICE Ihereby certify thatthe foregoing FAA'sResponse to Motionto Continue Trial Datewas sent: Original and one copyviacertified mail to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: HearingDocketClerk, AGC-430 WilburWrightBuilding- Suite 2Wl000 One copy via certifiedmail and facsimile to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 Stuart

### A. Goldstein, P.A. 7300NorthKendall Dr., Suite 380 Miami, FL 33156 Facsimile: (305) 400-0685

Legal Assistant Office ofthe Regional Counsel 

### ,iAN 6 2014 Dated

73. Identify by title, date, author, present custodian, and content, all documents

Response: obtained by you or in your possession relating to the assertions in the Complaint and yourAnswer, including affirmative defenses. TLF objects to this Interrogatory on the grounds it is overly burdensome, oppressive, and unnecessary in that the FAA already is in possession of this information as a result of the Rodney Schneider case. Without waiving this objection, in addition to the documents attached hereto, Respondent is in possession of the documents provided to Respondentby FAA in this case and in the Rodney Schneidercase. 4. Identify by name, address and telephone number, all persons whom you intend to**~-** -**·~** have testify as a factual witness in your defense at the hearing in this matter, and provide a detailed summary ofeachperson's anticipated testimony. Response: TLF has not made a final determination which witnesses it will call at trial. At this time, TLF anticipates it may call some or all ofthe following persons as witnesses in its direct case: Rodney Schneider, Ray Fowler, David Wilkins, Semih Genculu, and Cullen Underwood. TLF reserves the right to add to or subtract from this list as information is developed in the discovery and investigationprocesses. Mr. Schneider may testify as to his involvement in the fnel tank replacement in N390TH. He may describe his actions relating to the fuel tank maintenance; his meaning and intention when making the logbook entry described in the Complaint; his aviation experience; his career inaviation; his experience with the B-17; and his participation in telephone conference call(s) relating to the fuel tank maintenance. Mr. Fowler may testify as to his position as Chief Pilot for The Liberty Foundation, his familiarity with the operations of the B-17, his participation in a telephone conference call(s) with Mr. Alderman and Mr. Miller discussing the fuel tankissue. Mr. Wilkins may testify as to the welding procedure used on the fuel tank and may also identify the color photographs provided to the FAA in the Schneider case.**~GOVERNMENT ~** **EX~lBIT** 

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