U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

LIBERTY FOUNDATION, 

Respondent. 

Docket No. FAA-2012-0477 

FAA Case No. 2011GL030070 

Judge Sullivan 

FAA'S RESPONSE IN OPPOSITION TO RESPONDENT'S MOTION TO CONTINUE 

TRIAL DATE 

The FAA, by and through undersigned counsel, hereby responds m opposition to 

Respondent's Motion to Continue Trial Date. 

In its Motion, Respondent requests a third continuance of the hearing date in this case. 

The current request for a continuance is based on the unavailability of Respondent's Executive 

Director at hearing due to a military deployment. In its Motion, Respondent argues that "serious 

prejudice" will result if the 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 "if the 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, Respondent provides no particular information as to how Mr. 

Fowler's abseil~~ will prejudi~e it, or why his absence cannot be handled without granting a third 

continuance of the hearing date. 

'' ,. ., . ' 

I' H.~ 

1 
As noted above, Respond~nt presents three broad reasons why it will be prejudiced if Mr. 

Fowler is not present. None of the 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 before that point, Mr. Fowler should be 

available for all pre-hearing preparations, and no prejudice will arise. Additionally, even if Mr. 

Fowler was not available, no reason is 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 of this 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 in the event it does 

not already have one available. 

It is also worth emphasizing that Mr. Fowler is not the Respondent in this matter. This is 

noteworthy for two reasons. First, there is no apparent reason why Respondent's owner, or some 

other individual designated by Respondent, could not attend the hearing on Respondent's 

behalf. 1 For 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 Relief Act (SCRA) 

1 Of course Respondent, as a corporate entity, cannot personally attend a hearing, and may only attend via a 

representative. 

2 
has 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 attend the 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 a witness, 

but the totality of the "detailed summary" of his testimony was as follows: 

Mr. Fowler may testify as to his position as Chief Pilot for The Liberty 

Foundation, his familiarity with the operations of the B-17, [and] his participation 

in a telephone conference call(s) with Mr. Alderman and Mr. Miller discussing 

the fuel tank issue. 

Respondent's Response to FAA's First Discovery Requests, Interrogatory #4 (Attached as 

Exhibit A).2 Mr. Fowler's position as Chief Pilot for Respondent is not at issue in this 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 

2 Mr. Fowler was not identified as a possible witness as to any matters contained in tbe later-filed Amended 

Complaint. 

3 
him that the removal of the bladder fuel tanks from the B-17 and the fabrication of new fuel 

tanks from existing aluminum shells and other fabricated components was a minor repair rather 

than a major alteration. Respondent argues that this conversation relieves 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 of this conversation are not material because even if the conversation took place 

as alleged by Respondent (which it did not), this does not form an affirmative defense - it is 

simply not the case that an oral opinion by an individual FAA employee absolves Respondent of 

its responsibility to follow the Federal Aviation Regulations. 

Additionally, even if Mr. Fowler's testimony as a witness was necessary, despite the 

immateriality of his proposed testimony, it is unclear why there would be prejudice if he did not 

give that testimony 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 of live 

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's testimony now, rather than simply seeking a third 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 requesting the continuance, Respondent has not sought or conducted any 

depositions during this discovery period. 

4 
exists to grant it a third continuance of the hearing in this 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 it would be prejudiced. It has asserted that the FAA cannot be prejudiced by a simple delay, 

but the FAA must respectfully disagree. This is the third request for a continuance from 

Respondent, a request that would necessarily delay any hearing in this matter4 until2015, over a 

year and a half after the originally set trial 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 of its misconduct. While delay may be 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 

in a delay of a year from the original hearing date. 

In sum, with regards to Mr. Fowler's non-witness role, Respondent has not presented 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 if Mr. Fowler's testimony was relevant and material, 

his testimony on the subject already exists and could be used in lieu of live testimony at hearing. 

Respondent has failed to present good cause for granting it a third continuance and delaying any 

hearing in this matter until 2015. 

4 As presented in the FAA's Motion for Summary Judgment, no hearing is necessary in this matter. 

5 
WHEREFORE, the FAA respectfully requests that the Respondent's Motion to Continue 

Trial Date be denied. 

f\~ Respectfully submitted this _0_ day of January, 2014. 

CHRISTOPHER R. STEVENSON 

Attorney 

Office of the Regional Counsel 

6 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Response to Motion to Continue Trial Date was sent: 

Original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

One copy via certified mail and facsimile to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Stuart A. Goldstein, P.A. 

7300 North Kendall Dr., Suite 380 

Miami, FL 33156 

Facsimile: (305) 400-0685 

Legal Assistant 

Office of the Regional Counsel 

,iAN 6 2014 

Dated 

7 
3. 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 your Answer, 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 

Respondent by FAA in this case and in the Rodney Schneider case. 

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 of each person'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 of the 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 investigation processes. 

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 in aviation; his experience with the B-1 7; 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 tank issue. 

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 i 

_ _,__AJ. --