UNITED STATES

 DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION,

 COMPLAINANT,

vs. FDMS NO. FAA-2013-0848

ENDLESS MOUNTAIN AIR, INC.,

 RESPONDENT.

_____________________________________________________

 TELECONFERENCE HEARING BEFORE

 THE HONORABLE J. E. SULLIVAN

 WEDNESDAY, MAY 28, 2014

 1:04 P.M.

 HISTORIC JORDAN SPRINGS

 1160 JORDAN SPRINGS ROAD

 STEPHENSON, VIRGINIA 22656
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 2

1 APPEARANCES

2 ON BEHALF OF THE FEDERAL AVIATION ADMINISTRATION:

3 ZACHARY M. BERMAN, ESQUIRE

4 OFFICE OF THE REGIONAL COUNSEL,

5 EASTERN REGION

6 1 AVIATION PLAZA

7 JAMAICA, NEW YORK 14434

8 TELEPHONE: 718.553.3258

9 FACSIMILE: 718.995.5699

10 ZACHARY.BERMAN@FAA.GOV

11

12 ON BEHALF OF THE RESPONDENT,

13 ENDLESS MOUNTAIN AIR, INC.:

14 WILLIAM J. DOBITSCH, JR.,

15 REPRESENTATIVE

16 SEAMANS AIRPORT

17 727 WINDSOCK LANE

18 FACTORYVILLE, PENNSYLVANIA 18419

19 TELEPHONE: NONE AVAILABLE

20 FACSIMILE: 570.945.5953

21 EMAIL: NOT FOUND

22

23 ALSO PRESENT:

24 CODY L. SMITH

25 IRENE NEMESIO
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 3

1 TELECONFERENCE HEARING

2 WEDNESDAY, MAY 28, 2014

3 1:04 P.M.

4 THE COURT: We're on the record in the

5 matter of Endless Mountain Air, Inc. This is docket

6 number FAA-2013-0848. Today is Wednesday, May 28,

7 2014, and the parties have convened by telephone for a

8 litigation scheduling conference. According to the

9 Court's record the last order issued was dated May 15,

10 2014, and it was an order denying the FAA's motion for

11 a decision, which leads us to today. The FAA is

12 represented by its attorney of record, Mr. Zachary M.

13 Berman. The Respondent, and I'm sorry, am I, am I

14 using the, no, I'm okay. I was looking at something

15 else. Excuse me. The Respondent, Endless Mountains

16 Air, Inc., is represented by its lay representative,

17 William J. Dobitsch, Jr. Also present at the Office

18 of Hearings are two observers, Mr. Cody L. Smith, an

19 attorney advisor with this office. In addition Ms.

20 Irene Nemesio, a law student intern with this office.

21 So good afternoon, everybody.

22 MR. BERMAN: Good afternoon.

23 THE COURT: What we need to do a little

24 bit is talk about what the scope of litigation is

25 going to be in this particular case given the Court's
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 4

1 order and also the answer that was filed by Mr.

2 Dobitsch preceding that order. So I'm going to start

3 with you, Mr. Berman. Have you had a chance to read

4 through the answer filed by Mr. Dobitsch on behalf of

5 Endless Mountain?

6 MR. BERMAN: Yes.

7 THE COURT: And talk with him about

8 what issues are actually still in dispute?

9 MR. BERMAN: Well, I haven't discussed

10 that with him yet.

11 THE COURT: Okay. Well, do you have a

12 sense of what issues you think may still be in dispute

13 and if so could you tell us what those are?

14 MR. BERMAN: Oh, I think that the main

15 issue, the factual issue in dispute is, I don't think

16 it's disputed, the facts that the six flights that

17 were technically not in compliance with the

18 regulations and that's the pilot hadn't test the

19 appropriate tests. But my understanding is that it's

20 the contention of the Respondent that he didn't, there

21 was some kind of misunderstanding that they

22 misunderstood the regulations and that's mitigating

23 and also it's their contention that the civil penalty

24 sought by the Agency is excessive and we disagree with

25 that.
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 5

1 THE COURT: Okay. So as I understand

2 what you've just said, Mr. Berman, you're asserting

3 that there may have been some admissions by the

4 Respondent to the factual allegations presented in

5 count 1 of the complaint but that the primary dispute

6 between the parties is about the civil penalty itself.

7 Is that what you're saying to us?

8 MR. BERMAN: Yes.

9 THE COURT: Okay. Was there anything

10 in the Respondent's answer, Mr. Berman, that led you

11 to believe rightly or wrongly that the Respondent

12 wanted to have a trial on any of the underlying

13 factual matters?

14 MR. BERMAN: Was there anything that

15 led me to believe that he does want a trial on the

16 underlying matters?

17 THE COURT: Correct. I'm just checking

18 in with you to see if there's anything that you saw in

19 the Respondent's answer that would leave open a

20 question on the matter of fact regarding the alleged

21 violation or if you're fairly confident that the

22 Respondent's answer admitted to all of those things.

23 MR. BERMAN: No, I think there's an

24 issue of fact as to communications that Endless

25 Mountains Air had with the FAA Flight Standards
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 6

1 District Office.

2 THE COURT: But as I understand what

3 you've just told me, that is more a mitigating

4 circumstance for the civil penalty. Or are you saying

5 it's a defense to the actual, actual violations

6 alleged?

7 MR. BERMAN: Just, well, it's my

8 understanding that they, I'm not sure if they would

9 dispute that they committed a, I think the way I

10 interpret it is that they had a good faith belief that

11 they, at the time that they did what they did that

12 they were doing the right thing.

13 THE COURT: Okay.

14 MR. BERMAN: And that is ...

15 THE COURT: And as the prosecuting

16 agent do you see that as a defense to the factual

17 allegations or as a mitigating defense to the proposed

18 civil penalty or both?

19 MR. BERMAN: I see that as more a, I'm

20 not admitting that, not admitting that it is

21 mitigating, just that that would be more in the way of

22 mitigating the civil penalty.

23 THE COURT: Okay.

24 MR. BERMAN: Because I don't, I don't

25 see where they would, I don't believe that they are
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 7

1 disputing the facts as stated in the complaint.

2 THE COURT: Okay. And I think what

3 I'll do now, is I'll turn to Mr. Dobitsch and check in

4 with him about the answer and what it purported to do

5 for his client. Mr. Dobitsch, let's chat for a moment

6 about your answer.

7 MR. DOBITSCH: Mm-hmm. (Indicating

8 affirmatively.)

9 THE COURT: There hasn't been a

10 preliminary discussion between you and Mr. Berman. In

11 your answer was it your intent to admit the factual

12 violations or were you trying to do something else?

13 MR. DOBITSCH: In my response,

14 technically, you know, looking at the regulations it

15 would, accordingly I was in I guess violation of the

16 regulations. But I have many, many mitigating

17 circumstances here and, you know, among them what I

18 would feel is a lack of assistance from the FAA

19 themselves just to, you know, ascertain whether it was

20 okay. And then after, you know, like I had mentioned

21 in my, I had written in my letter, we had certainly

22 looked in detail at the regulations and the paperwork

23 and we had ascertained at that time, myself and Mr.

24 Palmer, my pilot, that we were legal to fly. Am I

25 going to say no, we didn't fly those days? Absolutely
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 8

1 not. We, you know, we did. Those flights were

2 definitely, you know, we made those flights but they

3 were made on 100 percent in belief of being in

4 compliance. And as I have stated in my letter, we

5 had, you know, if we, if we did not think we were in

6 compliance why would we have left such a paper trail

7 out there? And in addition, I guess , or not guess,

8 but, I mean, the civil penalty for something like

9 this, you know, myself and Mr. Palmer have made, you

10 know, we've certainly gone through to be educated in

11 this, in this matter in what technically we had done

12 wrong and we, you know, I basically think that this, I

13 think I had also stated in my letter this has gone way

14 too far. I'm a small operator, single plain, barely

15 making a go of it and, you know, this type of, this

16 amount of penalty is just, it's obscene.

17 THE COURT: Okay. So from what I'm

18 hearing from you and from what I'm hearing from Mr.

19 Berman, it sounds to me like the two of you are fairly

20 close in agreement, if not right on point, with the

21 perception that the real dispute is whether or not

22 this proposed fine of $46,200 is an appropriate amount

23 for the six flights that were alleged to have been

24 flown in violation of FAA safety regulations. That's

25 what I'm kind of hearing from you both and I'm trying
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 9

1 to see if that's accurate or not. And the reason I'm

2 trying to see that is so that gives me a sense of what

3 we should be scheduling for discovery and for

4 litigation. So I want to just firm that up with you,

5 Mr. Dobitsch. It sounded to me from a review of your

6 answer that you agree that those six flights that are

7 alleged to have occurred in the FAA's complaint on

8 page 1 from the period of September 23, 2011, to

9 October 9, 2011, with a Cirrus SR20 Aircraft actually

10 took place.

11 MR. DOBITSCH: Absolutely. The

12 flights, we did take the flights. We, you know, like

13 I'd said, we believed we were in compliance with

14 regulations. We didn't hide anything. We've gone

15 through the process to, you know, learn from this and

16 move on. Yeah. But that's basically my, this is a

17 technical violation, no, not giving up any safety. We

18 operated safely. My pilot had a check ride within six

19 months. And this is just, you know, like I have said,

20 it's been blown out of proportion.

21 THE COURT: Okay. Then what I need to

22 do at this point is I'm going to ask you both to take

23 a look at the FAA complaint and I'm going to focus

24 specifically on pages 1 and page 2. And what I'm

25 going to do first and foremost is I'm going to look at
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 10

1 count 2 which begins on page 1 and it moves into the

2 top of page 2 of the FAA's complaint. And we're going

3 to go through count 2, paragraphs 1, 2, 3, 4 and talk

4 about those just to see if each of those factual

5 allegations are admitted. And I'm doing that simply

6 to protect the appellate record and to make sure that

7 if in fact those are admitted we can kind of take

8 those and put them aside and focus in on what the real

9 dispute is. And I know, Mr. Dobitsch, that this may

10 seem somewhat repetitive to you, but I think for

11 purposes of clarity and to give you a chance, last

12 chance to say yay or nay we'll do it this way. And

13 then at the end of that if there is something in

14 paragraphs 1, 2, 3, or 4 in count 2 of the complaint

15 that's still an issue I'll know. If there isn't then

16 I can really focus in on just the civil penalty. Does

17 that make sense to you, Mr. Berman?

18 MR. BERMAN: Yes.

19 THE COURT: Okay. And, Mr. Dobitsch?

20 MR. DOBITSCH: Yes.

21 THE COURT: Okay. So what I'll do

22 right now, Mr. Dobitsch, is I'll turn to you and I'll

23 ask you to look at count 2 on page 1 of the FAA's

24 complaint, paragraph 1, and it begins with Endless

25 Mountain Air, Inc., is the holder of. Do you see
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 11

1 that, that sentence?

2 MR. DOBITSCH: Yes. This would be on

3 final notice of proposed civil penalty.

4 THE COURT: No, it's actually on the

5 complaint. Do you have a copy of the complaint with

6 you?

7 MR. DOBITSCH: I'm sure I do. I will

8 have to find it.

9 THE COURT: Okay. Because the

10 complaint is what's filed with me.

11 MR. DOBITSCH: Just bear with me. I'm

12 just going through ...

13 THE COURT: Sure. Your final notice of

14 civil penalty is very similar. But I do have to

15 utilize the complaint.

16 MR. DOBITSCH: Yes, so it sounds like

17 the same paragraph. Hold on.

18 THE COURT: If you can't find it just

19 let me know.

20 MR. DOBITSCH: Okay. Let me, I'm, just

21 bear with me. I'm sure I have it here. All right,

22 it's not the notice of civil penalty although it

23 sounds very similar. Your Honor, I'm just not finding

24 it. I found a, I found the notice of proposed civil

25 penalty dated March 15th of 2012 which is, I guess,
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 12

1 well, basically very similar to the final notice of

2 proposed civil penalty. Bear with me one more moment.

3 THE COURT: Okay.

4 MR. DOBITSCH: Have one moment.

5 MR. BERMAN: If this helps, Mr.

6 Dobitsch, the complaint is preceded by a cover letter

7 where it's saying enclosed herein please find a copy

8 of request for hearing, original and one copy of FAA's

9 complaint.

10 MR. DOBITSCH: Okay. Thank you, sir.

11 MR. BERMAN: I don't know if that

12 helps.

13 MR. DOBITSCH: Let me, let me just flip

14 through everything again.

15 MR. BERMAN: And it's dated December

16 17th, 2013.

17 MR. DOBITSCH: I think I've found, yep,

18 I have found it. Okay, December 17th, 2013. It was

19 certified and, okay, DOT, FAA and it says complaint on

20 it. Got it.

21 THE COURT: All right. Now, Mr.

22 Dobitsch, why don't we take a look at page 1 of the

23 complaint.

24 MR. DOBITSCH: Okay.

25 THE COURT: Under Roman numeral 2 there
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 13

1 are three numbered paragraphs starting with the number

2 1 and moving chronologically to the number 3.

3 MR. DOBITSCH: Mm-hmm. (indicating

4 affirmatively.)

5 THE COURT: And will you look at the

6 paragraph identified as number 1 which starts and

7 states, quote, Endless Mountain Air, Inc., is the

8 holder of, end quote.

9 MR. DOBITSCH: Yes.

10 THE COURT: And tell me if you agree or

11 disagree with that factual allegation.

12 MR. DOBITSCH: Agree.

13 THE COURT: Okay. And then let's look

14 at paragraph 2 under count 2 on page 1 of the

15 complaint that starts with the words, quote, during

16 the period from September 23, 2011, end quote. If you

17 would read that paragraph silently to yourself first

18 and then tell me if you agree or disagree or simply

19 don't know.

20 MR. DOBITSCH: I would agree.

21 THE COURT: Okay. Let's turn next to

22 paragraph 3 on page 1 of the two page complaint. That

23 paragraph or that sentence starts with, quote, during

24 each of the above referenced flights, end quote, and

25 so forth. If you would read that particular paragraph
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 14

1 that moves on to the top of page 2 of the complaint,

2 then let me know when you're ready. And I apologize,

3 the complaint is actually five pages long instead of

4 two. My error.

5 MR. DOBITSCH: No, it's not necessary.

6 Okay. So section 2, number 3.

7 THE COURT: Correct.

8 MR. DOBITSCH: Under section 293 I

9 would agree with that.

10 THE COURT: Okay, thank you. And then

11 we're now on page 2 of the five page complaint. At

12 the top of page 2, still under count 2, and the

13 numbered section is number 4, starting with the words,

14 quote, during each of the above referenced flights,

15 comma, Mr. Palmer, end quote. If you would read that

16 sentence quietly to yourself and then tell me if you

17 agree, disagree or don't know.

18 MR. DOBITSCH: I would disagree with

19 this because Mr. Palmer had a flight check on April,

20 the previous April before these alleged violations.

21 THE COURT: Okay. So this is, I'm glad

22 we did this because this tells me that there is a

23 disagreement of fact between the parties that we need

24 to address either during pre- hearing discovery or at

25 trial. So essentially I will find that the Respondent
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 15

1 has agreed to paragraphs 1, 2 and 3 of count 2 of the

2 complaint filed by the FAA and that there appears to

3 still be a disagreement between the parties about the

4 allegation contained in paragraph 4 of count 2 of the

5 complaint. That leads me to a discussion of the scope

6 of the trial, the scope of the discovery and so forth

7 and as a result I need to get some different papers

8 before we continue. So if you'll give me a moment

9 I'll pull those out. And I will thank both of you for

10 the joint proposed procedural schedule that you

11 previously filed in this case that was received by

12 this office on March 11, 2014. Obviously some of the

13 proposed dates that were proffered at that time have

14 already expired. So what I want to do is talk a

15 little bit about the end of the case, which is the

16 trial, and then work my way back into today to get a

17 sense of how much time to allot for discovery and what

18 type of discovery might be needed given the issues in

19 dispute, that being one factual allegation and then

20 the civil penalty proposal. I'll turn first to you,

21 Mr. Berman. About how long do you think the trial

22 would need to be reserved for given the identification

23 of the parties' dispute and would it still be in, in

24 and around Allentown, Pennsylvania?

25 MR. BERMAN: Yes, I would request it be
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 16

1 in Allentown, Pennsylvania. And I don't think it

2 should last more than a day, but I'd suggest perhaps

3 we reserve for two days just in case ...

4 THE COURT: Okay.

5 MR. BERMAN: ... it goes into a second.

6 THE COURT: And let me ask you a little

7 bit about Allentown, Pennsylvania. Are there federal

8 district courthouse facilities in that city?

9 MR. BERMAN: It's been a while but I

10 know I've had, it's been many years but I do recall

11 having a hearing in the downtown area in federal,

12 federal court there.

13 THE COURT: Okay. And what's, is that

14 near Pittsburgh or Philadelphia or can you give ...

15 MR. BERMAN: Close, close to the

16 Philadelphia. It's on the eastern side of, not far

17 from New York. It's like about two hours from New

18 York City.

19 THE COURT: Okay.

20 MR. BERMAN: As opposed to Pittsburgh

21 which is about eight hours by car from ...

22 THE COURT: Yeah. I'm aware, I'm aware

23 of the distance between the two. Okay. Mr. Dobitsch,

24 let me talk to you next. Is Allentown, Pennsylvania,

25 a good place for you? Where is Factoryville,
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 17

1 Pennsylvania, from Allentown?

2 MR. DOBITSCH: I am north of Allentown

3 about an hour and forty-five minute's drive.

4 THE COURT: Okay. And are you aware of

5 federal district courthouse facilities in Allentown?

6 MR. DOBITSCH: I'm not aware of it, but

7 I'm sure I could find it.

8 THE COURT: Well, I, I've gotten an

9 assertion from the FAA that there might be some but

10 it's been a while since he was last in that area. If

11 you knew you could say and if you don't know I have

12 staff here who can find out. So for the time being I

13 will accept the parties' recommendation of Allentown,

14 Pennsylvania. If we have trouble finding facilities

15 we'll basically default to the next nearest locale

16 that has a federal courthouse and we'll let you know

17 if there's any problem. Mr. Dobitsch, in looking at

18 your side of the case, do you have a sense of how long

19 it would take you to present your witnesses on both

20 the factual issue that's still in dispute and the

21 monetary issue that's in dispute?

22 MR. DOBITSCH: Well, I've never, you

23 know, been in, been in court or had a case. I mean,

24 I've been on, as a juror a number of times but I've

25 never actually had a case. I would imagine a day
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 18

1 would be enough for me.

2 THE COURT: Okay.

3 MR. DOBITSCH: You know, I would think.

4 THE COURT: Well, what I'll do is I'll

5 talk a little bit about what that entails so that you

6 have an idea and I'll also give you some resources to

7 look up if you choose to pursue this on your own.

8 MR. DOBITSCH: Mm-hmm. (Indicating

9 affirmatively.)

10 THE COURT: And maybe this is a good

11 time to do that. In essence, the cases that are

12 brought before this Administrative Court are fairly

13 formal in nature. So whenever possible we try and set

14 the hearings in a federal district courthouse or

15 courthouse facility. So assuming that that is

16 accomplished in your case, essentially you would be

17 coming to a courthouse, going through security, and

18 then arriving ultimately at a courtroom. The

19 courtroom is setup very similar to a courtroom that

20 you may have sat in as a juror where there is a raised

21 bench, a witness stand on one side, typically the

22 right of the Court, a clerk, a desk on the left-hand

23 side of the bench, and then two attorney tables facing

24 the bench. The proceedings in these cases are done

25 very similar to a federal district court trial, so the
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 19

1 prosecuting agent will go first and present its

2 evidence first. That means that Mr. Berman has the

3 burden of proof to start. He will present his

4 witnesses and evidence first. He will present them in

5 the format called direct examination which is the

6 format that is assigned essentially to the party

7 presenting witnesses. Direct examination usually is a

8 narrative form of inquiry. It's who, what, where,

9 why, how questions. You as the responding party would

10 be allowed to question Mr. Berman's witnesses as well

11 during the format called cross examination. Cross

12 examination is a different type of inquiry. It can

13 include direct examination but it can also include

14 leading questions. You don't have to ask questions of

15 Mr. Berman's witnesses but many people do. Assuming

16 Mr. Berman puts on three witnesses and then he's

17 satisfied after the third witness, then he's made his

18 case. He will rest. At which point you have the

19 option to put on a defensive case or to rest as well.

20 Most people put on a defensive case but not everybody.

21 If you put on a defensive case then you are presenting

22 your witnesses and your style of inquiry would be

23 direct because you're calling a witness to the stand.

24 And then Mr. Berman would have a chance as the

25 responding party to cross examine your witnesses if he
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 20

1 so chooses. At the end of that Mr. Berman would have

2 what's called the last bite at the apple and he could

3 if he wanted to present rebuttal witnesses to your

4 evidence. If he does that you would again have a

5 right to question those witnesses in cross examination

6 and you potentially could present a rebuttal witness

7 as well after Mr. Berman is finished. Most times

8 people do not present rebuttal but sometimes they do.

9 So most litigants will focus on the prosecuting

10 agent's presentation of their case in chief and their

11 responsive case. Does this sound similar to cases

12 that you've sat in as a juror so far?

13 MR. DOBITSCH: Yes, it does, Your

14 Honor.

15 THE COURT: Okay. Then in addition to

16 that, in addition to calling people as witnesses, you

17 would be required to have exhibits, physical

18 documentary evidence, prepared and ready to present

19 during your, your part of the case. And physical

20 documents are usually marked as exhibits and there is

21 a method by which you present your exhibits unless you

22 and Mr. Berman talk ahead of time and you both agree

23 that some of your exhibits will come in by agreement

24 or that some of his will.

25 MR. DOBITSCH: Mm-hmm. (Indicating
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 21

1 affirmatively.)

2 THE COURT: Your exhibits have to have

3 some relationship to the issues at hand and should be

4 in a format that makes them admissible to the trier of

5 fact. Typically some of those things would mean that

6 the exhibit has to be reliable, understandable,

7 reliable from a clearly identified source who has

8 knowledge to present that information by either

9 written form or if you have photographs, for example,

10 you have to have photographs that are relevant to the

11 proceeding. There are books that are written about

12 how evidence is prepared, presented and admitted, so I

13 can't get into all of that at this point.

14 MR. DOBITSCH: Mm-hmm. (Indicating

15 affirmatively.)

16 THE COURT: If you are the person

17 representing your company and you also plan to

18 testify, you then have the challenge of getting on the

19 stand and doing a narrative statement and then

20 fielding questions that are presented to you in cross.

21 MR. DOBITSCH: Okay.

22 THE COURT: And you may find that it is

23 much easier to handle that portion of the case if you

24 have someone to assist you. What I've seen other

25 individuals do in your circumstance when they're
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 22

1 presenting their own case is bring in a helper who can

2 ask you questions when you're on the stand and then

3 field whatever objections are being raised while

4 you're under oath.

5 MR. DOBITSCH: Mm-hmm. (Indicating

6 affirmatively.)

7 THE COURT: Because wearing all those

8 hats at one time can be quite challenging. So those

9 are some of the things that you would need to do or

10 prepare for, for the trial itself. Any questions so

11 far?

12 MR. DOBITSCH: No.

13 THE COURT: Okay. Then before the

14 trial you would also be responsible for representing

15 your client in asking for information from Mr. Berman

16 and in responding to requests for information from Mr.

17 Berman. And this whole portion of the litigation is

18 called the discovery period.

19 MR. DOBITSCH: Okay.

20 THE COURT: The reason it's called the

21 discovery period is because you and Mr. Berman have a

22 chance to learn more about each other's cases. You

23 have a chance to discover new information, thus the

24 word discovery. You can use all kinds of different

25 tools to learn more about each other's perceptions and
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 23

1 beliefs in terms of your dispute and those tools can

2 be a request for written information and the request

3 can come in certain forms or they can be very informal

4 depending on how well you work with each other. You

5 can engage in depositions where you hire court

6 reporters and depose witnesses before you ever get to

7 trial ...

8 MR. DOBITSCH: Mm-hmm. (Indicating

9 affirmatively.)

10 THE COURT: ... which is fairly formal.

11 You can do all kinds of different things. Most often

12 people will go and start with the very basics which is

13 tell each other what they know and what they believe

14 and why they believe it. You may find in the

15 discovery period that you are not as far apart as you

16 may think. You may find in the discovery period that

17 there's a piece of information that Mr. Berman didn't

18 know and once you gave it to him it helped change his

19 mind on something and vice versa. Mr. Berman may have

20 something that he shares with you that suddenly is an

21 ah-hah moment for you. The discovery period can be

22 very helpful to litigating parties because it not only

23 helps you learn about each other's cases and prepare

24 for trial, it also gives you an opportunity to

25 constantly reconsider and think about potential
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 24

1 settlement. I say that not because I think you should

2 settle this case or that because I have any belief

3 about that, I say it because in every single case, in

4 every single litigation parties have a responsibility

5 to their client to look at different options for

6 resolution and one of those options is always

7 settlement negotiations. So because you are your

8 company's representative, I'm sharing with you what

9 attorneys already know, that you always are looking to

10 see what settlement opportunities arise when you

11 exchange information.

12 MR. DOBITSCH: Mm-hmm. (Indicating

13 affirmatively.)

14 THE COURT: You may find that there are

15 a whole bunch or that there are none. I don't know.

16 MR. DOBITSCH: Right.

17 THE COURT: But it's something to

18 always consider. And because that is part and parcel

19 of litigation, you always want to keep as best you can

20 friendly relations with your friend across the aisle.

21 MR. DOBITSCH: Mm-hmm. (Indicating

22 affirmatively.)

23 THE COURT: Because it's so much easier

24 to work out a settlement with someone with whom you've

25 been pleasant and who has been pleasant to you ...
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 25

1 MR. DOBITSCH: Right.

2 THE COURT: ... as opposed to someone

3 who has been unpleasant. And Mr. Berman's an old, I

4 shouldn't say he's an old person. He's an older

5 practitioner and so he knows that and I'm just

6 catching you up to speed. So let's talk about general

7 discovery and other discovery matters. And to do that

8 I'm going to turn back to you, Mr. Berman. There

9 seems to be one factual matter that is of issue and

10 then the remaining matter is the proposed penalty.

11 What kind of discovery do you think, best guess at

12 this point, that you're going to need to have and how

13 long do you think it will take?

14 MR. BERMAN: I don't anticipate a lot

15 of discovery, just the basics. Interrogatories and

16 request for production of documents to produce to

17 inform us of what their theory of the case is and any

18 documents that they anticipate to support their theory

19 of the case.

20 THE COURT: Okay.

21 MR. BERMAN: So I don't anticipate any

22 depositions, just perhaps request for admissions will

23 be used.

24 THE COURT: Okay. Mr. Dobitsch, when

25 Mr. Berman talks about interrogatories, request for
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 26

1 production and request for admission, do you know what

2 those mean?

3 MR. DOBITSCH: No, I do not.

4 THE COURT: Okay. I'm going to just

5 give you a brief description. They're all requests

6 for discovery in writing.

7 MR. DOBITSCH: Okay.

8 THE COURT: And they have, they come in

9 different forms. So request for admissions are

10 written requests for you to admit certain facts or

11 information. And you want to pay attention to those

12 because they have a timeline for response.

13 MR. DOBITSCH: Mm-hmm. (Indicating

14 affirmatively.)

15 THE COURT: And if you don't respond

16 within the timeline it's presumed that you're

17 admitting what's been asked of you.

18 MR. DOBITSCH: Okay.

19 THE COURT: And that can change the

20 trial quite a bit.

21 MR. DOBITSCH: Mm-hmm. (Indicating

22 affirmatively.)

23 THE COURT: Interrogatories are written

24 questions that are propounded to your client and they

25 have a certain format. Typically under the rules a
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 27

1 party can only submit thirty interrogatories or less

2 to the other side. But they also have a timeline and

3 you need to answer them usually within thirty days or

4 less. Request for production are requests for you to

5 produce certain documents or photographs or other

6 information that you are relying upon to support your

7 theory of the case.

8 MR. DOBITSCH: Mm-hmm. (Indicating

9 affirmatively.)

10 THE COURT: And that will be in writing

11 as well and it will be time sensitive. Again, usually

12 about thirty days. So those are some of the tools that

13 lawyers use in discovery. Those are the tools that you

14 can use as well on behalf of your client.

15 MR. DOBITSCH: Mm-hmm. (Indicating

16 affirmatively.)

17 THE COURT: If you do, you want to

18 serve those requests upon Mr. Berman and they need to

19 be in a form that he can understand just like he needs

20 to serve them to you in a form that you understand.

21 MR. DOBITSCH: Mm-hmm. (Indicating

22 affirmatively.)

23 THE COURT: There are other types of

24 tools as well but I think these three tools are fairly

25 often used, probably more often than anything else.
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 28

1 MR. DOBITSCH: Mm-hmm. (Indicating

2 affirmatively.)

3 THE COURT: Mr. Berman has stated that

4 he's not likely to take depositions. What that means

5 is that he's not likely to ask you to produce your

6 witnesses early so that he can ask questions of them

7 with a court reporter present.

8 MR. DOBITSCH: Okay.

9 THE COURT: This is often done by

10 parties when they have very complex litigation and

11 they want to see a witness and ask questions of a

12 witness before they get to trial.

13 MR. DOBITSCH: Mm-hmm. (Indicating

14 affirmatively.)

15 THE COURT: Many times people do not do

16 this when cases are a little less complex. And just

17 in terms of what you have your issues are fairly

18 narrow ...

19 MR. DOBITSCH: Mm-hmm. (Indicating

20 affirmatively.)

21 THE COURT: ... because you have one

22 factual issue and then the civil penalty. So you

23 certainly could utilize depositions in your discovery

24 period but it is costly. You do have to pay for

25 witnesses to travel and you have to pay for the court
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 29

1 reporter and so forth.

2 MR. DOBITSCH: Mm-hmm. (Indicating

3 affirmatively.)

4 THE COURT: So it may not be something

5 you need to do, but it's up to you. Let me ask you

6 this, Mr. Dobitsch. So far is there anything that you

7 would like to ask about in terms of discovery?

8 MR. DOBITSCH: I think I have the

9 general gist of it. I'll do a little bit of research,

10 too, and ...

11 THE COURT: Okay.

12 MR. DOBITSCH: I, all right. This is

13 just discovery though, okay. Yep, I think I'm, I

14 think I have a pretty good handle on it, thank you.

15 THE COURT: Okay. What I'm going to

16 suggest that we do is that, and I've done this in a

17 couple other cases, is first take care of some

18 discovery issues and then once the parties are

19 finished with discovery check in with you all, if

20 everything's going well.

21 MR. DOBITSCH: Mm-hmm. (Indicating

22 affirmatively.)

23 THE COURT: And then also have a trial

24 date after that. So we have a couple different check

25 ins to insure that everybody's on the same page and
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 30

1 working towards the same goal. So let's do this. Mr.

2 Berman, how much time do you think you would need for

3 a comfortable discovery period?

4 MR. BERMAN: I'd say about, including

5 file and the responses and the ...

6 THE COURT: Correct.

7 MR. BERMAN: Yeah, I'd say about ninety

8 days total.

9 THE COURT: Okay. Mr. Dobitsch, does

10 that sound reasonable to you or do you have a vacation

11 coming up in the summer that we need to account for?

12 MR. DOBITSCH: Ninety days sounds

13 reasonable. Right now the only things I have planned

14 are, I think, remembering right off the top of my

15 head, July 19th through the 26th, that week, and then

16 the week, the week immediately after Labor Day, too,

17 would be a problem for me.

18 THE COURT: Okay.

19 MR. DOBITSCH: Other than that I would

20 be available.

21 THE COURT: Okay. Let me take a look

22 at my calendar then. Okay. Then why don't we do

23 this. Today is the 28th. Okay. Why don't we do

24 this. Why don't I set June 11, 2014, for the deadline

25 for initial disclosures. And initial disclosures are
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 31

1 very simple and they don't require a formal request of

2 discovery from either side. And I'll be issuing a

3 litigation order after we're done today that will

4 codify all of this in writing and also give you both

5 references to different rules and regulations so that

6 if you have questions you can look those up. But in

7 essence, an initial disclosure requires three things.

8 Address and telephone number and name of the

9 individuals likely to have discoverable information

10 about the dispute. So, for example, Mr. Berman would

11 likely identify his FAA safety inspector who did the

12 investigation ...

13 MR. DOBITSCH: Mm-hmm. (Indicating

14 affirmatively.)

15 THE COURT: ... as the person who has

16 discoverable information. If there were two of them

17 he would likely identify both people with their names

18 and their contact information and basically a summary

19 of, short summary of what they know. There would also

20 be disclosure of any documents that would be utilized

21 to support the allegations and then a computation of

22 how the $46,000 and some odd dollar penalty was

23 calculated. On Mr. Dobitsch's side he would identify

24 potentially himself as someone who has information.

25 He might identify the pilot that is referenced in the
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 32

1 complaint. He might identify someone else who has

2 information about the company finances if he's

3 asserting that the company can't pay the amount and so

4 forth. There would be just a general exchange of

5 basic information that identifies who knows, who knows

6 things and what they know and how they know them. And

7 then after that, after that initial exchange by the

8 parties, you would start general discovery or in

9 collaboration with that initial exchange. General

10 discovery would then include filing requests for

11 information that are specific under the form of

12 written interrogatories or request for production or

13 request for admission. And then I would suggest,

14 given our time frame and Mr. Dobitsch's black out

15 dates, that we take the next two weeks just to do the

16 initial discovery where you exchange some basic

17 information, finish that up by June 11, 2014, and then

18 on or before June 11, 2014, start your general

19 discovery. And if we start general discovery on or

20 before June 11, 2014, the end date for that would be

21 most likely October 1, 2014, which is a little more

22 than ninety days to account for the two black out

23 weeks that Mr. Dobitsch has already talked about.

24 And, Mr. Dobitsch, what I'm going to do is I'm going

25 to also set a time period prior to October 1, 2014,
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 33

1 ...

2 MR. DOBITSCH: Mm-hmm. (Indicating

3 affirmatively.)

4 THE COURT: ... for both you and Mr.

5 Berman to identify expert witnesses. So, for example,

6 and these are specific. So if Endless Mountain

7 decides to hire an expert witness I want you ...

8 MR. DOBITSCH: Mm-hmm. (Indicating

9 affirmatively.)

10 THE COURT: ... to be telling Mr.

11 Berman that before the close of the discovery period.

12 If Mr. Berman decides to utilize the testimony of an

13 FAA employee whose duties regularly involve giving

14 expert testimony, I want him, I want him to be telling

15 you that before the close of the discovery period. The

16 reason I want that disclosure before the end of

17 discovery is so that if either of you have questions

18 of that specific expert you can ask them before

19 discovery is over.

20 MR. DOBITSCH: Mm-hmm. (Indicating

21 affirmatively.)

22 THE COURT: Mr. Berman, I'm looking at

23 potentially the latter part of July or mid to late

24 August for that particular due date. Do you have a

25 preference?
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 34

1 MR. BERMAN: No, either one is fine.

2 THE COURT: Okay. Mr. Dobitsch, any

3 preference from you?

4 MR. DOBITSCH: No, Your Honor.

5 THE COURT: Okay. Then I will set

6 August 20th, 2014, for the disclosure of any special

7 expert the parties are speaking to as to the hearing.

8 It may be that neither of you have that type of expert

9 given the narrow focus of the issues but I will set it

10 anyway. Now, instead of, usually, what I usually do

11 at this point is I set up summary judgement motions,

12 but I'm thinking it might be better to just set up a

13 telephone conference at this point in mid October.

14 And I'm going to turn to you first, Mr. Berman. Would

15 that be acceptable to you or would you prefer that I

16 simply go through and do summary judgement scheduling

17 at this time?

18 MR. BERMAN: That will be acceptable,

19 just a phone conference.

20 THE COURT: Okay. Mr. Dobitsch, is

21 that acceptable to you?

22 MR. DOBITSCH: Yes, a phone conference

23 would be fine. Thank you.

24 THE COURT: Okay. Then let's take a

25 look at our calendars. And I have, the first three
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 35

1 weeks of October are booked. Oh, dear. Actually my

2 entire October is booked. So I'm going to go into the

3 last week of October. How about October 29th? Mr.

4 Berman, is there a, is that date available to you and

5 if so do you have any black out time during that day?

6 MR. BERMAN: Yes, I'm available the

7 whole day.

8 THE COURT: Okay. Mr. Dobitsch, how

9 about you?

10 MR. DOBITSCH: I'm available also.

11 THE COURT: Mr. Berman, any preference

12 for a time?

13 MR. BERMAN: No preference.

14 THE COURT: Mr. Dobitsch, same

15 question.

16 MR. DOBITSCH: No, no preference.

17 THE COURT: Then why don't we start the

18 day off and do this at 10:00 a.m. and I'll schedule

19 this for one hour just to be on the safe side. And

20 this will be a pre-hearing status conference just to

21 make sure that all the discovery has been taken care

22 of, that the parties are clear about what the issues

23 are and to determine whether or not the parties have

24 reached agreements on any matters in dispute to narrow

25 the focus of the trial. Now, my question to you at
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 36

1 this point is do you want to set the trial dates at

2 this point or do you want to wait until after the

3 telephone conference? Starting with you, Mr. Berman.

4 MR. BERMAN: Either way would be fine.

5 THE COURT: Mr. Dobitsch, any

6 preference?

7 MR. DOBITSCH: Same for me.

8 THE COURT: Okay. Well, then why don't

9 we do this. I'm going to suggest that we set the

10 trial now and the reason I say that is because my

11 trial calendar seems to be getting booked up. And I'd

12 rather set it now and if it needs to be changed for

13 any reason in October we can always do that, but this

14 way it's on my calendar now and it's on your

15 calendars, too. So two days. Let me see what I can

16 find. I'm looking at my calendar which is why you're

17 hearing silence from me at this point. It's either

18 too soon or too far, so let me see if I can find

19 something. Well, I'm glad we decided to set it today.

20 I am looking at the week of March 8th, 2015. Mr.

21 Berman, do you have time available that week?

22 MR. BERMAN: Let me just check on one

23 thing here. Which week did you say?

24 THE COURT: The week of March 8?

25 MR. BERMAN: Yeah. I'm available that
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 37

1 week.

2 THE COURT: Okay. Mr. Dobitsch, how

3 about you?

4 MR. DOBITSCH: I am also.

5 THE COURT: Okay. Then let's plan on

6 convening on Tuesday, March 10, 2015. We'll reserve

7 March 11, 2015. And then for those of us who might

8 have to travel in early we can have March 9 and March

9 12 as travel days. And what I'm going to do is I'm

10 going to give you a due date for exchange of witnesses

11 and exhibits that's fairly close in time to that

12 period. How about January 28th for the exchange of

13 witness lists and exhibits and we'll also use that

14 date for written stipulations and agreed motions in

15 limine. Would that be acceptable to you, Mr. Berman?

16 MR. BERMAN: Yes.

17 THE COURT: And, Mr. Dobitsch?

18 MR. DOBITSCH: Yes.

19 THE COURT: Okay. What I will do then

20 is I will, I will not set up any summary judgement

21 motions at this point, although you are always welcome

22 to file them. And, Mr. Dobitsch, what that means is

23 that if you at the end of discovery find that the

24 evidence is so clearly placed in your corner that as a

25 matter of law there is no other answer for the Court
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 38

1 but to grant your request for relief, then you file a

2 motion for summary disposition.

3 MR. DOBITSCH: Motion for summary ...

4 THE COURT: Judgement.

5 MR. DOBITSCH: ... disposition.

6 THE COURT: Yes, but those require

7 special pleadings because you have to show that there

8 are no material issues of fact in dispute and that the

9 law favors your side. So many cases don't really

10 qualify for that, but it's always available to a party

11 just like Mr. Berman could file a motion for summary

12 judgement as well. With a civil penalty the

13 likelihood that you would have a summary judgement is

14 less sure because there's always a range for civil

15 penalty proposals typically anyway, but I will leave

16 it to the two of you to discuss that privately.

17 MR. DOBITSCH: Mm-hmm. (Indicating

18 affirmatively.)

19 THE COURT: At our discussion on

20 October 29, 2014, we can always set something like

21 that up if the parties think that it's needed prior to

22 the trial in March, but I'm not going to set it up now

23 as a matter of course. I will also note that I will

24 put in my litigation order how to mark exhibits so

25 that you know. Essentially, Mr. Dobitsch, you're the
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 39

1 responding party so your exhibits would be marked R

2 for respondent dash 1, R dash 2, R dash 3 and so

3 forth. Each party should always have a cover sheet

4 that identifies each exhibit in a table so that it's

5 clear what your exhibits are and if you have a large

6 number of exhibits please put them in a three ring

7 binder and tab them for the Court. There will also be

8 in the litigation schedule information about how to

9 schedule pre-hearing conferences on my calendar. If

10 you need to reach me or have a conference prior to

11 October 29, 2014, typically what you want to do is

12 confer with each other first, talk to each other about

13 some mutually available dates, and then the moving

14 party would contact Mr. Smith, the attorney who helps

15 me with my caseload, and he would be checking my

16 calendar against your proposed dates and then letting

17 you know which would work and helping you set that up

18 on my calendar. And I know that Mr. Berman has done

19 that before. And, Mr. Berman, my understanding is

20 that it's been a fairly streamlined way of doing it.

21 Is that still working for you and your ...

22 MR. BERMAN: Yes. Yes, it has been

23 working.

24 THE COURT: Okay, very good. In

25 addition, this litigation order will talk about what
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 40

1 to do if you send your friend across the aisle a

2 request for discovery and you don't get the discovery

3 back. Typically the very first thing you do is you

4 contact your friend across the aisle and ask him about

5 it. If that doesn't reach resolution for you, then

6 you can move to compel and the litigation order will

7 talk about that. Mr. Dobitsch, I would be remiss if I

8 did not say to you that you are always free to hire

9 counsel during this process, but if you do I would

10 recommend that you do so sooner rather than later if

11 only because attorneys' calendars book up and you may

12 be sure to hire somebody who can be available for the

13 trial.

14 MR. DOBITSCH: Okay.

15 THE COURT: If you decide to continue

16 on for yourself that's great. Other people have done

17 that as well. But I would strongly encourage you to

18 do some research and read some decisions and cases

19 about what other people have done in your position ...

20 MR. DOBITSCH: Mm-hmm. (Indicating

21 affirmatively.)

22 THE COURT: ... when they have argued

23 that the fine was too high and what evidence you may

24 submit that's persuasive. Often times people come to

25 the Court and say well, it's just not fair or I, I
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 41

1 don't think I should have to pay that but I'm not

2 going to tell you anything about my finances or my

3 business's finances because it's none of your

4 business. Well, you're welcome to take those

5 positions but that doesn't make it very helpful to

6 your side because the case law is such that if you are

7 arguing, for example, that you can't afford the fine,

8 that the business can't afford the fine, part of your

9 defense would then be to show with evidence ...

10 MR. DOBITSCH: Mm-hmm. (Indicating

11 affirmatively.)

12 THE COURT: ... the state of your

13 business so that I could say yes, I agree with you,

14 the business can't afford it, as opposed to gosh, he

15 told me and so it must be true. I cannot accept gosh,

16 you told me so it must be true. That's not sufficient

17 evidence. I'm just forewarning you.

18 MR. DOBITSCH: Mm-hmm. (Indicating

19 affirmatively.)

20 THE COURT: So I would strongly

21 recommend that you read some decisions that have been

22 issued by this office and by the FAA Administrator

23 about penalty assessments so that you have a much

24 better idea.

25 MR. DOBITSCH: Mm-hmm. (Indicating
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 42

1 affirmatively.)

2 THE COURT: Mr. Berman will likely be

3 sending you the sanction guidance as part of his

4 disclosure in which there's printed material about how

5 the FAA calculates these penalties and what they

6 utilize as guidance for their calculations. And all

7 of that is very important to review and be familiar

8 with before you come to court.

9 MR. DOBITSCH: Mm-hmm. (Indicating

10 affirmatively.)

11 THE COURT: So with that, on behalf of

12 the FAA, Mr. Berman, is there anything you would like

13 to add or correct to the record before we close or any

14 question you might have?

15 MR. BERMAN: No, Your Honor.

16 THE COURT: And, Mr. Dobitsch, on

17 behalf of yourself, I know this has been a very short

18 conference but I'm hoping that we took care of at

19 least some preliminary matters for your client.

20 Anything you would like to add or correct or any

21 question you would like to ask for your client?

22 MR. DOBITSCH: No, I'm okay here.

23 Thank you.

24 THE COURT: Okay. Then I'll thank you

25 both very much for your presence today. It appears
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 43

1 our business is complete. I'll be sending out an

2 order setting litigation dates and procedures probably

3 within the next 24 hours. With that, we can go off

4 the record and I wish you all a very good day. Thank

5 you.

6 MR. BERMAN: Thank you, Judge.

7 MR. DOBITSCH: Okay. Thanks, Your

8 Honor. Have a great day.

9 (WHEREUPON, the Teleconference Hearing concluded at

10 1:07 p.m.)

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FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 44

1 STIPULATION

2

3 The foregoing matter was taken on the date, and

4 at the time and place set out on the title page

5 hereof.

6

7 It was requested that the matter be taken by the

8 reporter and that the same be reduced to typewritten

9 form.

10

11

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13

14

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25
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 45

1 CERTIFICATE OF REPORTER AND SECURE ENCRYPTED

2 SIGNATURE AND DELIVERY OF CERTIFIED TRANSCRIPT

3 I, GREIG AITKEN, Notary Public, do hereby

4 certify that the forgoing matter was reported by

5 stenographic and/or mechanical means, that same was

6 reduced to written form, that the transcript prepared

7 by me or under my direction, is a true and accurate

8 record of same to the best of my knowledge and

9 ability; that there is no relation nor employment by

10 any attorney or counsel employed by the parties

11 hereto, nor financial or otherwise interest in the

12 action filed or its outcome.

13 This transcript and certificate have been

14 digitally signed and securely delivered through our

15 encryption server.

16 IN WITNESS HEREOF, I have here unto set my hand

17 and delivered through encrypted server this 11th day

18 of July, 2014.

19

20

21

22 /s/GREIG D. W. AITKEN

23 COURT REPORTER, NOTARY

24 NOTARY REGISTRATION NUMBER: 7324050

25 MY COMMISSION EXPIRES: SEPTEMBER 30, 2014
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 46

$

$46,000 31:22

$46,200 8:22

1

1 5:5 9:8

9:24 10:1

10:3

10:14 10:23

10:24 12:22

13:2 13:6

13:14 13:22

15:1

32:21 32:25

39:2

1:04 3:3

1:07 43:10

10 37:6

10:00 35:18

100 8:3

11 15:12

30:24 32:17

32:18 32:20

37:7

12 37:9

15 3:9

15th 11:25

17th 12:16

12:18

19th 30:15

2

2 9:24 10:1

10:2 10:3

10:3

10:14 10:14

10:23 12:25

13:14 13:14

14:1 14:6

14:11 14:12

14:12

15:1 15:1

15:4 39:2

2011 9:8

9:9 13:16

2012 11:25

2013 12:16

12:18

2014 3:2

3:7 3:10

15:12 30:24

32:17 32:18

32:20 32:21

32:25

34:6

38:20 39:11

2015 36:20

37:6 37:7

20th 34:6

23 9:8 13:16

24 43:3

26th 30:15

28 3:2 3:6

28th 30:23

37:12

29 38:20

39:11

293 14:8

29th 35:3

3

3 10:3

10:14 13:2

13:22

14:6 15:1

39:2

4

4 10:3

10:14 14:13

15:4

8

8 36:24

8th 36:20

9

9 9:9 37:8

A

a.m 35:18

Absolutely

7:25 9:11

accept

17:13 41:15

acceptable

34:15 34:18

34:21 37:15

accomplished

18:16

According 3:8

accordingly

7:15

account 30:11

32:22

accurate 9:1

across

24:20

40:1 40:4

actual 6:5

6:5

actually

4:8 9:9

11:4 14:3

17:25 35:1

add 42:13

42:20

addition 3:19

8:7 20:15

20:16 39:25

address 14:24

31:8

Administrativ

e 18:12

Administrator

41:22

admissible

21:4

admission

26:1 32:13

admissions

5:3 25:22

26:9

admit 7:11

26:10

admitted 5:22

10:5 10:7

21:12

admitting

6:20 6:20

26:17

advisor 3:19

affirmatively

7:8 13:4

18:9 21:1

21:15

22:6 23:9
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 47

24:13 24:22

26:14 26:22

27:9

27:16 27:22

28:2

28:14 28:20

29:3

29:22 31:14

33:3 33:9

33:21 38:18

40:21 41:11

41:19

42:1 42:10

afford 41:7

41:8 41:14

afternoon

3:21 3:22

against 39:16

Agency 4:24

agent 6:16

19:1

agent's 20:10

agreed 15:1

37:14

agreement

8:20 20:23

agreements

35:24

ahead 20:22

ah-hah 23:21

Air 3:5

3:16 5:25

10:25 13:7

Aircraft 9:9

aisle 24:20

40:1 40:4

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14:2

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15:2 42:25

appellate

10:6

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4:19 8:22

April 14:19

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arguing 41:7

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arriving

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ascertain

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assessments

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assistance

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assuming

18:15 19:15

attention

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attorney 3:12

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August

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B

barely 8:14

basic 32:5

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basically

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basics

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bear 11:11

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FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 48

begins 10:1

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behalf 4:4

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belief 6:10

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beliefs 23:1

believe

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bench 18:21

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Berman 3:13

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bite 20:2

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books 21:11

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bunch 24:15

burden 19:3

business 41:4

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business's

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calculated

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calculations

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calendar

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calendars

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12:19

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22:8

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change

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changed 36:12

chat 7:5

check 7:3

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FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 49

29:24 36:22

checking 5:17

39:15

chief 20:10

choose 18:7

chooses 20:1

chronological

ly 13:2

circumstance

6:4 21:25

circumstances

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Cirrus 9:9

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FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 50

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Court's 3:9

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December

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19:19 19:20

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definitely

8:2

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23:5

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35:23

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22:23

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FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 51

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disposition

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20:18

documents

20:20 25:16

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18:24

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29:16

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16:11

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early 28:6

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encourage

40:17

Endless 3:5

3:15 4:5

5:24

10:24

13:7 33:6

engage 23:5

entails 18:5
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 52

entire 35:2

error 14:4

essence 18:11

31:7

essentially

14:25 18:16

19:6 38:25

everybody

3:21 19:20

everybody's

29:25

everything

12:14

everything's

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evidence 19:2

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examination

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F

FAA 3:11 5:25

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facility

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facing 18:23

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Factoryville

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flight 5:25

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flights

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9:12

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flip 12:13
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 53

flown 8:24

fly 7:24 7:25

focus 9:23

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foremost 9:25

forewarning

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form 19:8

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general

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hand 21:3

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I

I'd 9:13 16:2

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FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 54

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inspector

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es 25:15

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J

January 37:12

joint 15:10

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judgement

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July 30:15

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June 30:24

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juror 17:24

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K

kinds 22:24

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knew 17:11

knowledge

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L

Labor 30:16

lack 7:18

large 39:5

last 3:9

10:11
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 55

16:2

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late 33:23

later 40:10

latter 33:23

law 3:20

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lawyers 27:13

lay 3:16

leading 19:14

leads 3:11

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learn 9:15

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letter 7:21

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12:6

letting 39:16

likelihood

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28:5 31:9

31:11 31:17

32:21 42:2

limine 37:15

lists 37:13

litigants

20:9

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litigation

3:8 3:24

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24:4

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31:3

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M

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March 11:25

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marked

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may 3:2 3:6

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5:3 10:9

18:20 21:22

23:14 23:16

23:16 23:19

24:14

29:4 34:8

40:11 40:23

maybe 18:10

mean 8:8

17:23

21:5 26:2

means 19:2

28:4 37:22

mentioned

7:20

method 20:21

mid 33:23

34:13

mind 23:19

minute's 17:3

misunderstand

ing 4:21

misunderstood

4:22

mitigating

4:22 6:3

6:17 6:21

6:22 7:16

Mm-hmm 7:7

13:3 18:8

20:25 21:14

22:5 23:8

24:12 24:21

26:13 26:21

27:8

27:15 27:21

28:1

28:13 28:19

29:2

29:21 31:13

33:2 33:8

33:20 38:17

40:20 41:10

41:18 41:25

42:9

moment 7:5

12:2 12:4

15:8 23:21

monetary

17:21

months 9:19

motion 3:10

38:2 38:3

38:11

motions 34:11

37:14 37:21

Mountain

3:5 4:5
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 56

10:25

13:7 33:6

Mountains

3:15 5:25

move 9:16

40:6

moves 10:1

14:1

moving 13:2

39:13

mutually

39:13

myself 7:23

8:9

N

narrative

19:8 21:19

narrow

28:18

34:9 35:24

nature 18:13

nay 10:12

nearest 17:15

necessary

14:5

negotiations

24:7

neither 34:8

Nemesio 3:20

ninety 30:7

30:12 32:22

none 24:15

41:3

north 17:2

note 38:23

notice 11:3

11:13 11:22

11:24 12:1

numeral 12:25

O

oath 22:4

objections

22:3

obscene 8:16

Obviously

15:12

occurred 9:7

October 9:9

32:21 32:25

34:13

35:1 35:2

35:3 35:3

36:13 38:20

39:11

odd 31:22

office 3:17

3:19 3:20

6:1 15:12

41:22

Oh 4:14 35:1

okay 3:14

4:11 5:1

5:9 6:13

6:23 7:2

7:20 8:17

9:21

10:19 10:21

11:9

11:20

12:3

12:10 12:18

12:19 12:24

13:13 13:21

14:6

14:10 14:21

16:4

16:13 16:19

16:23

17:4 18:2

20:15 21:21

22:13 22:19

25:20 25:24

26:4 26:7

26:18

28:8

29:11 29:13

29:15

30:9

30:18 30:21

30:22 30:23

34:2 34:5

34:20 34:24

35:8 36:8

37:2 37:5

37:19 39:24

40:14 42:22

42:24 43:7

old 25:3 25:4

older 25:4

open 5:19

operated 9:18

operator 8:14

opportunities

24:10

opportunity

23:24

opposed 16:20

25:2 41:14

option 19:19

options

24:5 24:6

order 3:9

3:10 4:1

4:2 31:3

38:24 39:25

40:6 43:2

original 12:8

other's 22:22

22:25 23:23

P

p.m 3:3 43:10

page 9:8 9:24

10:1 10:2

10:23 12:22

13:14 13:22

13:22

14:1

14:11 14:11

14:12 29:25

pages 9:24

14:3

Palmer 7:24

8:9 14:15

14:19

paper 8:6

papers 15:7

paperwork

7:22

paragraph

10:24 11:17

13:6

13:14 13:17

13:22 13:23

13:25 15:4

paragraphs

10:3 10:14
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 57

13:1 15:1

parcel 24:18

particular

3:25

13:25 33:24

parties 3:7

5:6 14:23

15:3

15:23 17:13

23:22

24:4

28:10 29:18

32:8 34:7

35:22 35:23

38:21

party 19:6

19:9

19:25

27:1

38:10

39:1 39:3

39:14

pay 26:11

28:24 28:25

32:3 41:1

penalties

42:5

penalty

4:23 5:6

6:4 6:18

6:22 8:8

8:16

10:16

11:3

11:14 11:22

11:25

12:2

15:20 25:10

28:22 31:22

38:12 38:15

41:23

Pennsylvania

15:24

16:1 16:7

16:24

17:1 17:14

people

19:15 19:20

20:8

20:16 23:12

28:15 31:17

40:16 40:19

40:24

percent 8:3

perception

8:21

perceptions

22:25

perhaps

16:2 25:22

period 9:8

13:16 22:18

22:21 23:15

23:16 23:21

28:24

30:3

32:25 33:11

33:15 37:12

person

21:16

25:4 31:15

persuasive

40:24

Philadelphia

16:14 16:16

phone 34:19

34:22

photographs

21:9

21:10 27:5

physical

20:17 20:19

piece 23:17

pilot 4:18

7:24 9:18

31:25

Pittsburgh

16:14 16:20

placed 37:24

plain 8:14

plan 21:17

37:5

planned 30:13

pleadings

38:7

pleasant

24:25 24:25

please 12:7

39:6

point 8:20

9:22

19:18 21:13

25:12 34:11

34:13

36:1 36:2

36:17 37:21

portion 21:23

22:17

position

40:19

positions

41:5

possible

18:13

potential

23:25

potentially

20:6

31:24 33:23

practitioner

25:5

pre 14:24

preceded 12:6

preceding 4:2

prefer 34:15

preference

33:25

34:3

35:11 35:13

35:16 36:6

pre-hearing

35:20 39:9

preliminary

7:10 42:19

prepare 22:10

23:23

prepared

20:18 21:12

presence

42:25

present

3:17

17:19

19:1 19:3

19:4 20:3

20:6 20:8

20:18 20:21

21:8 28:7

presentation

20:10

presented 5:4
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 58

21:12 21:20

presenting

19:7

19:21 22:1

presumed

26:16

pretty 29:14

previous

14:20

previously

15:11

primary 5:5

printed 42:4

prior 32:25

38:21 39:10

privately

38:16

probably

27:25 43:2

problem 17:17

30:17

procedural

15:10

procedures

43:2

proceeding

21:11

proceedings

18:24

process

9:15 40:9

produce 25:16

27:5 28:5

production

25:16

26:1 27:4

32:12

proffered

15:13

proof 19:3

proportion

9:20

proposal

15:20

proposals

38:15

proposed 6:17

8:22 11:3

11:24

12:2

15:10 15:13

25:10 39:16

propounded

26:24

prosecuting

6:15 19:1

20:9

protect 10:6

pull 15:9

purported 7:4

purposes

10:11

pursue 18:7

puts 19:16

Q

qualify 38:10

question 5:20

19:10

20:5

35:15 35:25

42:14 42:21

questions

19:9

19:14 19:14

21:20

22:2

22:10 26:24

28:6

28:11

31:6 33:17

quietly 14:16

quite 22:8

26:20

quote 13:7

13:8

13:15 13:16

13:23 13:24

14:14 14:15

R

raised

18:20 22:3

range 38:14

rather

36:12 40:10

reach 39:10

40:5

reached 35:24

ready 14:2

20:18

real 8:21

10:8

really

10:16 38:9

reason 9:1

22:20 33:16

36:10 36:13

reasonable

30:10 30:13

rebuttal 20:3

20:6 20:8

recall 16:10

received

15:11

recommend

40:10 41:21

recommendatio

n 17:13

reconsider

23:25

record 3:4

3:9 3:12

10:6

42:13 43:4

referenced

13:24 14:14

31:25

references

31:5

regarding

5:20

regularly

33:13

regulations

4:18 4:22

7:14 7:16

7:22 8:24

9:14 31:5

relations

24:20

relationship

21:3

relevant

21:10

reliable 21:6
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 59

21:7

relief 38:1

relying 27:6

remaining

25:10

remembering

30:14

remiss 40:7

repetitive

10:10

reporter 28:7

29:1

reporters

23:6

representativ

e 3:16 24:8

represented

3:12 3:16

representing

21:17 22:14

request

12:8

15:25

23:2 23:2

25:16 25:22

25:25

26:1 26:9

27:4 31:1

32:12 32:13

38:1 40:2

requests

22:16

26:5

26:10

27:4

27:18 32:10

require

31:1 38:6

required

20:17

requires 31:7

research 29:9

40:18

reserve

16:3 37:6

reserved

15:22

resolution

24:6 40:5

resources

18:6

respond 26:15

respondent

3:13 3:15

4:20 5:4

5:11

14:25 39:2

Respondent's

5:10 5:19

5:22

responding

19:9

19:25 22:16

39:1

response 7:13

26:12

responses

30:5

responsibilit

y 24:4

responsible

22:14

responsive

20:11

rest 19:18

19:19

result 15:7

review 9:5

42:7

ride 9:18

rightly 5:11

ring 39:6

Roman 12:25

rules 26:25

31:5

S

safe 35:19

safely 9:18

safety 8:24

9:17 31:11

sanction 42:3

sat 18:20

20:12

satisfied

19:17

saw 5:18

schedule

15:10 35:18

39:8 39:9

scheduling

3:8 9:3

34:16

scope 3:24

15:5 15:6

second 16:5

section

14:6 14:8

14:13

security

18:17

seem 10:10

seems 25:9

36:11

seen 21:24

send 40:1

sending

42:3 43:1

sense 4:12

9:2 10:17

15:17 17:18

sensitive

27:11

sentence 11:1

13:23 14:16

September 9:8

13:16

serve 27:18

27:20

setting 43:2

settle 24:2

settlement

24:1 24:7

24:10 24:24

setup 18:19

shares 23:20

sharing 24:8

sheet 39:3

short 31:19

42:17

silence 36:17

silently

13:17
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 60

similar 11:14

11:23

12:1

18:19 18:25

20:11

simple 31:1

simply 10:5

13:18 34:16

single 8:14

24:3 24:4

sir 12:10

six 4:16 8:23

9:6 9:18

small 8:14

Smith 3:18

39:14

somebody

40:12

someone 21:24

24:24

25:2

31:24 32:1

somewhat

10:10

sooner 40:10

sorry 3:13

sought 4:24

sound 20:11

30:10

sounded 9:5

sounds 8:19

11:16 11:23

30:12

source 21:7

speaking 34:7

special

34:6 38:7

specific

32:11

33:6 33:18

specifically

9:24

speed 25:6

SR20 9:9

staff 17:12

stand 18:21

19:23 21:19

22:2

Standards

5:25

start 4:2

19:3

23:12

32:8

32:18 32:19

35:17

starting 13:1

14:13 36:3

starts 13:6

13:15 13:23

state 41:12

stated 7:1

8:4 8:13

28:3

statement

21:19

states 13:7

status 35:20

stipulations

37:14

streamlined

39:20

strongly

40:17 41:20

student 3:20

style 19:22

submit 27:1

40:24

suddenly

23:20

sufficient

41:16

suggest

16:2

29:16 32:13

36:9

summary 31:18

31:19 34:11

34:16 37:20

38:2 38:3

38:11 38:13

summer 30:11

support 25:18

27:6 31:21

sure 6:8 10:6

11:7

11:13 11:21

17:7

35:21 38:14

40:12

T

tab 39:7

table 39:4

tables 18:23

talk 3:24 4:7

10:3

15:14 16:24

18:5

20:22

25:6

39:12 39:25

40:7

talked 32:23

talks 25:25

technical

9:17

technically

4:17 7:14

8:11

Teleconferenc

e 3:1 43:9

telephone 3:7

31:8

34:13 36:3

terms 23:1

28:17 29:7

test 4:18

testify 21:18

testimony

33:12 33:14

tests 4:19

thank 12:10

14:10

15:9

29:14 34:23

42:23 42:24

43:4 43:6

Thanks 43:7

themselves

7:19

theory

25:17 25:18

27:7

there's
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 61

5:18 5:23

17:17 23:17

38:14 42:4

they're 21:25

26:5

third 19:17

thirty 27:1

27:3 27:12

thus 22:23

timeline

26:12 26:16

27:2

today 3:6

3:11

15:16 30:23

31:3

36:19 42:25

tools 22:25

23:1

27:12 27:13

27:24 27:24

top 10:2 14:1

14:12 30:14

total 30:8

towards 30:1

trail 8:6

travel

28:25

37:8 37:9

trial 5:12

5:15

14:25

15:6

15:16 15:21

18:25 22:10

22:14

23:7

23:24 26:20

28:12 29:23

35:25

36:1

36:10 36:11

38:22 40:13

trier 21:4

trouble 17:14

true 41:15

41:16

try 18:13

trying 7:12

8:25 9:2

Tuesday 37:6

turn 7:3

10:22 13:21

15:20

25:8 34:14

type 8:15

15:18 19:12

34:8

types 27:23

typically

18:21

21:5

26:25 38:15

39:11 40:3

U

ultimately

18:18

underlying

5:12 5:16

understand

5:1 6:2

27:19 27:20

understandabl

e 21:6

understanding

4:19 6:8

39:19

unless 20:21

unpleasant

25:3

upon 27:6

27:18

usually

19:7

20:20

27:3

27:11 34:10

34:10

utilize 11:15

28:23 33:12

42:6

utilized

31:20

V

vacation

30:10

versa 23:19

vice 23:19

violation

5:21 7:15

8:24 9:17

violations

6:5 7:12

14:20

W

wait 36:2

wearing 22:7

Wednesday 3:2

3:6

week 30:15

30:16 30:16

35:3

36:20 36:21

36:23 36:24

37:1

weeks 32:15

32:23 35:1

welcome 37:21

41:4

we'll 10:12

17:15 17:16

37:6 37:13

we're 3:4

10:2

14:11 31:3

we've 8:10

9:14

whatever 22:3

whenever

18:13

WHEREUPON

43:9

whether

7:19 8:21

35:23

whole 22:17

24:15 35:7

whom 24:24

whose 33:13

William 3:17

wish 43:4

witness 18:21

19:17 19:23

20:6

28:11 28:12

33:7 37:13
FAA vs Endless Mtns Air Hearing May 28, 2014 VR # 1062-3 Page 62

witnesses

17:19

19:4 19:7

19:10 19:15

19:16 19:22

19:25

20:3 20:5

20:16

23:6 28:6

28:25

33:5 37:10

work 15:16

23:4

24:24 39:17

working

30:1

39:21 39:23

writing

26:6

27:10 31:4

written

7:21 21:9

21:11

23:2

26:10 26:23

32:12 37:14

wrong 8:12

wrongly 5:11

Y

yay 10:12

yep 12:17

29:13

yet 4:10

York 16:17

16:18

you'll 15:8

yourself

13:17 14:16

40:16 42:17

you've 5:2

6:3 20:12

24:24

Z

Zachary 3:12