U.S. DEPARTMENT OF TRANSPORTATION 

In the Matter of: 

FELTS FIELD AVIATION 

Respondent 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

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Docket No: FAA-2015-3307 

Case No: 2015WP9I0090 

_______________ ) Judge J.E. Sullivan 

COMPLAINANT'S OPPOSITION TO RESPONDENT'S MOTION TO COMPEL 

Complainant, by and through counsel, files this opposition to the Motion to Compel filed 

by Respondent on September 16, 2016. 

ARGUMENT 

The Respondent's Motion to Compel should be denied because the information the 

Respondent seeks is privileged, and the Respondent has failed to demonstrate a particularized 

need for the disclosure of such information. According to 14 C.F.R. § 13.220(e), a party may 

discover any matter that is not privileged and that is relevant to the subject matter of the 

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procee mg. The deliberative process privilege attaches to pre-decisional internal 

communications within govermnental agencies, and covers documents reflecting advisory 

opinions, recommendations and deliberations comprising part of a process by which 

govermnental decisions and policies are formulated? The deliberative process privilege is a 

qualified privilege which may be overcome by a showing that the respondent's actual need for 

disclosure outweighs the harm that could result to the agency from that disclosure 3 

Case law is clear that pre-decisional material rendered by agency staff members in the 

course of reaching a final position on a particular matter under agency consideration is protected 

1 14 C.F.R. § 13.220(e). 

2 Dept. of!nterior v. Klamath Water Users Protective Ass'n, 532 U.S. 1, 8 (2001). 

3 fn re American Airlines, Inc., FAA Order No. 89-0006 (December 21, 1989). 
from discovery by the deliberative process privilege. For example, in Mal co Products, Inc., the 

Judge denied the respondent's motion to compel an unredacted copy of the EIR because the 

redacted portions of the report were protected under the deliberative process privilege. 4 

Similarly, in Continental Airlines, Inc., the Judge denied the respondent's request for information 

regarding the initiation of enforcement proceedings and recommendations by FAA personnel.' 

In Continental Airlines, Inc., the Judge reasoned that the information relating to the agency's 

decision-making process prior to the issuance of a complaint is protected from discovery by the 

deliberative process privilege 6 Similar reasoning should be applied to this case. 

In this case, the redacted portions of the Federal Aviation Administration's (FAA) 

Enforcement Investigative Report (EIR) are protected under the deliberative process privilege 

because they contain pre-decisional deliberations, recommendations, and opinions rendered by 

FAA investigatory personnel in the course of reaching a final determination. The primary 

investigator on this case, FAA Safety Inspector Simone Clinton, authored the EIR. The redacted 

portions of the EIR contain a statement of the facts and alleged regulatory violations found 

during the investigation, an evaluation of the case, a recommendation for sanction, and opinions 

about the case. Contrary to the assertions by the Respondent in its Motion to Compel, the 

redacted portions of the EIR are not the research and investigative product of Eric Wells, the 

Team Coordinator for the FAA Western Compliance and Enforcement Center, Drug Abatement 

Division; but rather, these portions of the EIR consists of the pre-decisional deliberations, 

4 FAA-2002-12285 (Apr. 24, 2003). 

5 FAA Order No. 90-18 (Aug. 22, 1990). 

6 I d. (See also In re American Airlines, Inc., FAA Order No. 89-0006 at 8 (Dec. 20, 1989) (finding that documents 

and information related to pre-complaint, internal deliberations are protected from discovery by the deliberative 

process privilege.)). 

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recommendations, and opinions of Simone Clinton. Therefore, the redacted portions of the EIR 

are protected from discovery under the deliberative process privilege. 

Additionally, it should be noted that the Respondent misunderstands the FAA's 

investigatory process for legal enforcement action in its Motion to Compel. Throughout its 

Motion, the Respondent incorrectly argues that the EIR is the research and investigative product 

of Eric Wells. 7 As previously stated, Simone Clinton was the reporting inspector for this case 

and author of the EIR. As a result, the EIR consists of Simone Clinton's analyses, opinions, and 

recommendations. After Simone Clinton completed the EIR, Eric Wells reviewed the report to 

ensure it contained sufficient supporting evidence. Eric Wells' review of the EIR was in 

accordance with the FAA's procedures, and was one of several steps that occur when the FAA 

processes an EIR for legal enforcement action8 Given the fact that the Respondent 

misunderstands the FAA's investigatory process for legal enforcement action, the arguments in 

its Motion relating to the EIR being the product of Eric Wells should be given very little weight. 

Furthermore, the Respondent has failed to demonstrate a particularized need for 

disclosure of an unredacted copy of the EIR that would outweigh the potential harm to the FAA 

from the disclosure of such privileged information. In its Motion, the Respondent generally 

asserts that it is entitled to an unredacted copy of the EIR because the information consists of 

facts known, or opinions held, by the FAA's expert witness-Eric Wells. 9 This assertion is not 

only inaccurate because Simone Clinton authored the EIR; but also, this assertion fails to identifY 

any particularized need for disclosure of an unredacted copy of the EIR. Additionally, the actual 

7 Respondent's Motion to Compel at 2-3. 

8 See FAA Order 2150.3B, Ch. 8, p.8-8- 8-9. 

9 Respondent's Motion to Compel at 2-3. 

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evidence that forms the basis for the FAA's allegations was produced to the Respondent in its 

entirety in the EIR. Moreover, the Respondent's argument that it is entitled to the unredacted 

copy of the EIR does not outweigh the FAA's need to protect its investigative and prosecutorial 

process. Disclosure of the redacted portions of the EIR would significantly harm the FAA's 

investigative and prosecutorial process and discourage candid communication between Agency 

personnel during the decision-making process. Therefore, the Respondent's Motion should be 

denied because the information it seeks is protected under the deliberative process privilege, and 

the Respondent has failed to demonstrate a particularized need for disclosure of this information 

that would outweigh the potential hmm to the FAA. 

CONCLUSION 

For the foregoing reasons, the Complainant respectfully requests the Judge deny the 

Respondent's Motion to Compel. 

Respectfully submitted, 

Patricia A. MeN all 

Acting Assistant Chief Counsel for Enforcement 

~· 

F,ib?);3 

Enforcement Division, Western Team 

P.O. Box 92007 

Los Angeles, CA 90009-2007 

Email: fatimah.stokley@faa.gov 

Telephone: (31 0) 725-7112 

Facsimile: (310) 725-6816 

Date: September 22, 2016 

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Docket No. FAA-2015-3307 

Case No. 2015WP910090 

CERTIFICATE OF SERVICE 

I hereby certify that on this date I have sent by Facsimile and U.S. First Class Mail, the 

COMPLAINANT'S OPPOSITION TO RESPONDENT'S MOTION TO COMPEL, addressed as 

follows: 

Judge J .E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave, S.E. 

East Bldg., Room Ell-310 

Washington, D.C. 20590 

Also by Fax: 202-366-7536 

Federal Aviation Administration 

Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2Wl 000 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Also by Fax: 202-267-1293 

Mark J. Conlin 

421 W. Riverside Ave., Suite 911 

Spokane, WA 99201 

Also by Fax: 509-623-1650 

Date: September 22, 2016 

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Aintonia Garcia 

Paralegal Specialist 

Enforcement Division 

National Enforcement Program 

Western Team 

Federal Aviation Administration 

Lawndale, California 

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