U.S. DEPARTMENT OF TRANSPORTATION

Inthe Matterof: FELTS FIELD AVIATION Respondent OFFICE OFHEARINGS WASHINGTON,D.C. ) ) ) ) ) DocketNo: FAA-2015-3307 Case No: 2015WP9I0090



## _______________) Judge J.E. Sullivan
COMPLAINANT'S OPPOSITION TORESPONDENT'S MOTIONTO COMPEL Complainant, by and through counsel, files this opposition to the Motion to Compel filed byRespondent 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 d. 1 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 outweighsthe harmthat couldresultto the agency from that disclosure3 Case law is clear that pre-decisional material rendered by agency staffmembers in the
course ofreaching a final position on a particular matter under agency consideration is protected

1 14 C.F.R. § 13.220(e). 2Dept. of!nteriorv. Klamath Water Users ProtectiveAss'n, 532 U.S. 1, 8(2001). 3fn reAmericanAirlines, Inc., FAA Order No. 89-0006 (December 21, 1989).from discovery bythe deliberative process privilege. For example, in Malco 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 ContinentalAirlines, Inc., the Judge denied the respondent's requestfor 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 ofa complaint is protected from discovery by the deliberative process privilege6 Similar reasoning should be appliedto 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 onthis 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 ofthe 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 ofthe 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 OrderNo. 90-18 (Aug. 22, 1990). 6 Id. (See alsoIn reAmericanAirlines, Inc., FAAOrderNo. 89-0006 at 8 (Dec. 20, 1989) (findingthat documents and informationrelated to pre-complaint, internal deliberations are protected from discovery by the deliberative processprivilege.)). 2recommendations, and opinions ofSimone Clinton. Therefore, the redacted portions ofthe EIR
are protected from discovery underthe deliberative processprivilege. 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 ofEric Wells.7 As previously stated, Simone Clinton was the reporting inspector for this case and author ofthe EIR. As aresult, the EIR consists ofSimone 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 ofseveral 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 Motionrelatingto the EIRbeingthe productofEric Wells should be given very little weight. Furthermore, the Respondent has failed to demonstrate a particularized need for disclosure ofan unredacted copy ofthe EIRthat 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 ofthe 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 authoredthe EIR; but also, this assertion fails to identifY any particularized need for disclosure ofan unredacted copy ofthe EIR. Additionally, the actual

7 Respondent's Motionto Compel at 2-3. 8 See FAAOrder 2150.3B, Ch. 8, p.8-8- 8-9. 9 Respondent's Motionto Compel at2-3. 3evidence 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 ofthe EIR does not outweigh the FAA's need to protect its investigative and prosecutorial process. Disclosure of the redacted portions ofthe 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 ofthis information thatwould outweighthe potentialhmmto the FAA. CONCLUSION For the foregoing reasons, the Complainant respectfully requests the Judge deny the Respondent's Motionto Compel.
Respectfully submitted, PatriciaA. MeNall Acting Assistant ChiefCounsel for Enforcement

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Enforcement Division, WesternTeam P.O. Box 92007 Los Angeles, CA 90009-2007 Email: fatimah.stokley@faa.gov Telephone: (310) 725-7112 Facsimile: (310) 725-6816
Date: September 22, 2016 4DocketNo. FAA-2015-3307 CaseNo. 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 ofHearings, M-20 U.S. Department ofTransportation 1200New Jersey Ave, S.E. East Bldg., Room Ell-310 Washington, D.C. 20590 Also by Fax: 202-366-7536 FederalAviationAdministration HearingDocket Clerk, AGC-430 Wilbur Wright Building, Suite 2Wl000 800 Independence Ave., S.W. Washington, D.C. 20591 Also by Fax: 202-267-1293 MarkJ. Conlin 421 W. Riverside Ave., Suite 911 Spokane, WA 99201 Also by Fax: 509-623-1650 Date: September22, 2016
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## ///<:~/./(;:**;~~--,** ,I(/ ·t·-t '>< - Aintonia Garcia Paralegal Specialist Enforcement Division National EnforcementProgram WesternTeam Federal AviationAdministration Lawndale, California 5