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KYLEE. LOMAZOW 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LlNDAVE.^SW 

RENTON, WASHINGTON 98057 

TELEPHONE: 425/227-1847 

FACSIMILE; 425/227-1007 

ULFMRTW-NT Or 

:;OC:;[:TOPERAy!ONS 

/Oil '.[:G !8 P :': :J ; 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEAIUNGS 

WASHINGTON, D.C. 

In the Matter of: 

FEDERAI. EXPRESS CORPORATION 

In the Matter of 

CORPORATE AIR 

FAA Docket No. CP1QNMQOII 

FAA case No. 2008NM700127 

DMS No. FAA-20I0-0977 

FAA Docket No. CPIONMOOIO 

FAA case No. 2008NM700I26 

DMS No. FAA-2010-0975 

Judge: Richard C. Goodwin 

MOTION IN LIMINE 

AND REQUEST FOR EXPEDITED RULING 

AJDGE GOODWEM: 

Complainant, through his undersigned counsel, hereby moves pursuant to 14 C.F.R. § 13.218, 

limiting the testimony of Respondent's Noticed Witnesses for the following reasons: 

1. On August 8, 2011, Respondent notified Complainant that it will call Bob Richard to 

testify in the above matter. 

2. Respondent has indicated that Bob Richard will be called to testify about his participation 

in the rulemaking process for any regulations in question in which he has personal 

knowledge, but Respondent does not mention Mr. Richard's personal background. Mr. 

Richards is the former Deputy Administrator for Hazardous Material Safety for the 

Pipeline and Hazardous Materials Safety Administration (PHMSA). According to 

49 C.F.R. § 9.7(b): 

In any legal proceeding before the Department or in which the United States 

(including any federal agency or officer 'of the United States) is a part}-: 

An employee may testify for the United States both as to facts within the employee's 

personal knowledge and as an expert or opinion witness. Except as provided in 

paragraph (c) of this section, an employee may not testify as an expert or opinion 

Agency's Motion in Limine 

DMS No. FAA-20I0-0977 & FAA-2010-0975 . 

FAA Docket No. CPIONMOO11 & CPIONMOOIO 

FAA Case- 2008NM70126 and 2009NM70127 

Page 1 of4 

Y.YLE E. LOMAZOW, FAA ATTOIWEY 

TEL: 425-227-] 847; FAX: 425-227-1007 
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witness, with regard to any matter arising out of the employee's official duties or the 

functions of the Department, for any parly other than the United States in any legal 

proceeding in which the United States is a party. An employee who receives a demand 

to testify on behalf of a party other than the United States may testify as to facts 

within the employee's personal knowledge, provided that the testimony be subject to 

the prior approval of agency counsel and to the Federal Rules of Civil Procedure and 

any applicable claims of privilege. 

Therefore, Mr. Richard would not be able to testify as an expert or opinion witness in this 

case regarding any rule or regulation arising out of his official duties while serving as 

Deputy Administrator of Hazardous Materials for PHMSA. Furthermore, he would not be 

able to testify as to matters of functions of PHMSA. This rule prevents Mr. Richard from 

testifying as to the deUberative process behind any rule or regulation that was drafted 

while Mr. Richard was working for PHMSA. 

3. Furthermore, according to the attached Department of Transportation (DOT) Policy 

Memorandum: 

/ have considered the factual situations in which testimony by former DOT employees are 

likely to arise and the intent of the rules, and have concluded that sections 9.7(b) and 

9.9(c) of this Department's employee testimony rule, 49 C. F. R §§ 9.7(b) and 9.9(c), 

should be clarified as follows: 

These provisions are not intended, and should not be interpreted, to prohibit 

a former DOT employee from testifying, on a consensual basis, in a legal 

proceeding about a matter that employee did not participate in or work on 

while a DOT employee as long as such testimony does not (a) purport to 

speak for the Department or (b) disclose any confidential, sensitive 

information or anything about the deliberative process of the Department 

of Transportation. 

Here, Mr. Richard should be prevented from testifying because he will be called to testify 

as to rules and regulations that he participated in or worked on while a member of 

PHMSA. Second, Respondent is calling Mr. Richard to testify as to the deliberative 

process behind PHMSA rules and regulations at issue in this case, which is clearly 

prohibited. Even if this kind of testimony was not prohibited by the DOT, it would be 

completely irrelevant to this case as the rulemaking process has nothing to do with the 

facts of this case and the violations alleged. Every rule has background discussions, but 

all that is relevant is the final rule itself and any other comments that were published for 

public view. 

4. Last, as the Agency, we are not aware or have received information indicating that Mr. 

Richard has in fact received Agency approval to testify, either from the Federal Aviation 

Administration (FAA) or PHMSA as is required under Section 9.7(b) above. 

Agency's Motion in Limine 

D.MS No. F,AvA-2010-0977 & F.A.A-2010-0975 

FAA Docket No. CPlONMOOli & CPIONMOOIO 

F.AA Case - 2008NM70126 and 2009NM70127 

Page 2 of4 

K'l'LE E. LOMAZOW, FAA ATTORNEY 

TEL; 425-227-1847; FAX; 425-227-1007 
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THEREFORE, the Complaint moves that the Administrative Law Judge (ALJ): 

a. Preclude the testimony of Bob Richard as he is a former DOT employee and is 

prohibited from testifying as to matters he participated in or worked on under 

49 C.F.R. §§ 9.7(b) and 9.7(c). 

b. Preclude the testimony of Bob Richard as he is a former DOT employee and is 

prohibited from speaking for PHMSA and testifying to the deliberative process behind 

the rules and regulations at issue in this case. 

c. Preclude the testimony of Bob Richard as the Agency is not aware of Mr. Richard 

having received Agency approval, either from the FAA or PHMSA, to testify. 

d. In the alternative, limit the testimony of Bob Richard to his personal opinions about the 

facts surrounding this case as long as he does not speak for PFIMSA and addresses 

matters that he worked on while Deputy Associate Director of Hazardous Materials for 

PHMSA. 

e. As the hearing in this matter is set for August 22, 2011, require a Response from the 

Respondent by August 17, 2011, so the ALJ may rule on this matter prior to the hearing. 

DATED this 10^'' day of August 2011. 

Respectfully submitted, 

Hf/< %^ wm<iiiKyle E. Lomazow 

FAA Attomev 

Agency's Motion in Limine 

DMS No. FAA-2010-0977& FAA-2010-0975 

FAA Docket No. CP1ONMOO11 & CP 1ONMOO10 

FAA Case - 2008NM70126 and 2009NM70127 

Page 3 of 4 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 425-227-1 847; FAX: 425-227-1007 
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CERTIFICATE OF SERVICE 

I hereby certify that the foregoingAgency's Motion in Limine has been served via facsimile 

and overnight this date, to the following: 

The Honorable Richard C. Goodwin 

Office of hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm El2-320 

Washington, D.C. 20590 

TEL: 202-366-2139 

FAX; 202-366-7536 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

R\X: 202-493-5142 

Cynthia Chandler-Snell 

Staff Attorney, Federal Express, Inc. 

3620 Hacks Cross Road 

Building B, 3'''Floor 

Memphis, TN 38125-8800 

TEL: 901-434-8361 

FAX: 901-434-8283 

Dated this 10th day of August, 201 

Dana Stephenson ' 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 LindAve. SW 

Renton, WA 98057 

425-227-2164 

Agency's Motion in Limine 

DMS No. FAA-2010-0977 & FAA-2010-0975 

FAA Docket No. CPlONMOOli & CPIONMOOIO 

F.AA Case-2008NM70126 and 2009NM70127 

Page 4 of 4 

KYLE E. LOMAZOW, YK \ ATTORNEY 

TEL: 425-227-1 847; FAX: 425-227-1007 
Q Memorandum 

USDepctftmentor 

TransportoHon 

Office of the Secretory 

ofliansporlatton 

S::b)^ Prohibitions on Testimony by Fonner.DOT ^ ^ SEPTEMBEK 26, 1994 

Employees under 49 C.F.R. Part 9 

~ Z ^ St^H . Kaplan iOi/ ^j ^ 

General Counsel ^^ ^ 

To: Chief Counsels 

Assistant General Counsel for litigation 

In February 1993, the Department of Transportation adopted a comprehensive 

regulation governing testimony by current and former DOT employees in legal 

proceedings, 49 C JJR. Part 9,58 Fwieral Register 6719 (February 2,1993). I have 

been advised that this regulation has the potential to restrict unnecessarily 

former DOT employees from testifying voluntarily with respect to matters with 

which they had no involvement while they were employed by this agency. I 

know of no instances where testimony of this nature has actually been 

prohibited. Nevertheless, to clarify the Department's poUcy in this area, I am 

hereby directing that all DOT offices interpret this regulationin^the manner 

described below. 

The spedHc language over which concern has been expressed is set forth in 

sections 9.7(b) and 9.9(c) of the Department's rule. (Section 9.7(b) is applicable to 

legal proceedings before the Department or in which the United States is a party, 

while section 9.9(c) covers legal proceedings between private Utigants-) Both of 

these provisions prohibit current and former DOT employees from testifying as 

an expert or opinion witness "with regard to any matter arising out of the 

employee's official duties or the functions of the Department" 49 G.F.K §§ 97Cb) 

and 9.9(c). Read literally, this language could arguably be construed to predude 

former Departmait of Transportation employees from testifying in legal 

proceedings with respect to matters which they did not work on while employed 

by DOT. This, however, is not the intent of the Department's rula 

Th6 intent of the Department's rule is spelled out in section 9.1(b) of that rule, 49 

C-FJl § 9.1(b), which identifies five objectives, or purposes. However, only three 

of these five objectives are relevant to testimony by former employees: 

(a) to minimize the possibility of involving the Department in 

controversial issues not related to its mission, 49 C J.R. §9-1 (bX2); 
(b) to maintain the impartiality of the Department among private 

litigants, 49 CF.R. § 9.1(b)(3); and 

(c) to protect confidential, sensitive information and the deliberative 

processes of the Department, 49 C.F-R. § 9.1(b)(5). 

Conversely, the two remaining purposes of the Department's rule, the need to 

conserveThe^timeofxurrent^mployees forofficialbusiness (49CF.R. § 9.1(b)(1)), 

and the need to avoid spending the time and money of the United States for 

private purposes (49 C.F.R. § 9.1(b)(5)), generally have little bearing on testimony 

hy former employees. 

I have considered the factual situations in which testimony by former DOT 

employees are likely to arise and the intent of the rules, and have concluded that 

sections 9.7(b) and 9.9(c) of this Department's employee testimony rule, 49 CF.R. 

§§ 9.7(b) and 9.9(c), should be clarified as follows: 

These provisions are not intended, and should not be 

interpreted, to prohibit a former DOT employee from 

testifying, on a consensual basis, in a legal proceeding 

about a matter tiiat employee did not participate in or 

work on while a DOT employee as long as such testimony 

does not (a) purport to speak for the Department or (b) 

disclose any confidential, sensitive information or anything 

about the deUt>erative processes of the Department of 

Transportation. 

In other words, the mere fact that a former employee may rely on some of the 

general expertise, or knowledge, acquired while that individual worked for the 

Department, in itself, is not sufficient to bar a former employee from providing . 

consensual testimony. By way of example, if a former Department employee did 

not participate in the Department's investigation of a particular accident, 

ordinarily this person would not be precluded from testifying as to his or her 

views concerning the cause of that accident. On the other hand, such an 

individual would not be permitted to speak for the Department, or divulge the 

specifics of an on-going or contemplated enforcement investigation. In additiorw 

former DOT employees will, of course, continue to be subject to any applicable 

requirements imposed by ethics rules, contractual obligations, controlling rules 

of evidence or procedure, and other statutory constraints. 

A copy of this memorandum should be provided to all former DOT employees 

who apply to testify under the Department's rule or inquire about it