WILLIAM V. O'CONNOR, JR. (CA SBN 216650) 

WOConnor@mofo.com 

2 JOANNA L. SIMON 

JoannaSimon@mofo.com 

AUG - 9 2013 

3 MORRISON & FOERSTER LLP EARING DOCKET 

12531 High BluffDrive 

4 San Diego, California 92130-2040 

Telephone: 858.720.5100 

5 Facsimile: 858.720.5125 

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Attorneys for Alaska Airlines Inc. 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. (Jl 

0 

11 In the Matter of: FAA Case No. 2011NM020013 

12 Alaska Airlines Inc. DECLARATION OF WILLIAM V. 

O'CONNOR IN SUPPORT OF 

ALASKA AIRLINES INC.'S 

MOTION TO COMPEL AND 

UNOPPOSED MOTION TO 

CONTINUE THE AUGUST 20, 

2013 HEARING DATE 

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I, William V. O'Connor, state: 

1. I am Partner at Morrison & Foerster LLP, counsel of record for defendants Alaska 

Airlines, Inc. I am licensed to practice in the State of California. I have personal knowledge of 

the facts set forth below. If called upon to testify, I could and would testify as to the matters set 

forth herein. 

- 2. Attached hereto as Exhibit A is a true and correct copy of the portions of 

EIR2011NM020013, Section B, which the Government released to Alaska Airlines in this matter. 

The redactions in this document were done by the Government prior to providing it to Alaska 

Airlines. 

3. Attached hereto as Exhibit B is a true and correct copy of Complaint in this matter, 

FAA Case No. 2011NM020013, filed on May 14, 2013. 

Declaration of O'Connor ISO of Motion to 

Compel 

(No. 2011NM020013) 

sd-623150 
1 4. Attached hereto as Exhibit C is a true and correct copy of excerpts from the 

2 August 1, 2013 deposition ofF AA Aviation Safety Inspector Justin Meisberger. 

3 5. Attached hereto as Exhibit D is a true and correct copy of the EIR Checklist 

4 produced in this matter. 

5 6. Attached hereto as Exhibit Eisa true and correct copy of the Notice of Proposed 

6 Civil Penalty, dated December 31, 2012. 

7 7. Attached hereto as Exhibit F is a true and correct copy ofthe FAA's responses to 

8 Alaska Airlines's First Set ofDiscovery, dated July 25,2013. 

9 8. Attached hereto as Exhibit G is a true and correct copy of Alaska Airlines's 

10 Second Set oflnterrogatories and Requests for Production to the FAA, dated July 18,2013. 

11 9. I have requested supplementation of the FAA's current discovery responses on 

12 more than one occasion, including requesting documents related to Thomas Bond, the 

13 Gov~rnment's expert witness in this matter. 

14 10. I have met and conferred with the Robert Spitzer, FAA Office of Regional 

15 Counsel, and he has informed me that he does not object to a continuance ofthe hearing date. 

16 11. I declare under penalty of perjury under the laws of the United States of America 

17 that the foregoing is true and correct and that this declaration was executed in San Diego, 

18 California on this 9111 day of August 2013. 

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28 Declaration of O'Connor ISO ofMotion to 

Compel 

(No. 2011NM020013) 

sd-623150 

By:~~{~- William V. O'Connor 

2 
- - 1 CERTIFICATE OF SERVICE 

2 The undersigned certifies under penalty of perjury under the laws of the State of 

3 California Qlat on this date I caused to be served in the matter indicated a copy of the within and 

4 foregoing document upon the following persons: 

5 

Federal Aviation Administration 

Attn: Hearing Docket Clerk, AGC- 430 6 

7 Wilbur Wright Building- Suite 2W1 000 

! Washington, D.C. 20591 

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9 

10 

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13 

Robert Spitzer 

Robert. Spitzer@faa. gov 

FAA Office of Regional Counsel 

1601 Lind Avenue, SW 

Renton, W A 98057 

14 Dated: August 9, 2013 

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Ci::rf.i· · ate of Service 

(No. HINM020013) 

Via Nationwide Legal, Inc. · 

ViaE-Mail 
• F&doral A¥18hon 

Admonia tration 

EIR: 2011fW020013 

Extrapolated estimated timeline from John Elgee's written statement (January 20. 20 II): 

1145: weather observed from the Alaska Airlines boardroom was "CAvon (ceiling and visibility 

unlimited) • 

1210: boarded Alaska Airlines Flight 86. 

1230: Alaska Airlines Flight 86 pushed back from the gate and started engines. 

1230: John Elgee noticed what appeared to be contamination on the left wing of ~laska Airlines 

Flight 86 after pushback and prior to taxi. 

1235: Alaska Airlines Flight 86 began to taxi after approximately five (5) minute delay. 

1240: Alaska Airlines Flight 86 departed Ted Stevens International Airport, Anchorage (ANC). 

On depar111re, Mr. Elgee took a photograph (using an Olympus Stylus 725SW) of the left wing after the aircraft 

broke through what be estimated was a "thin fog layer" JIOP I OJ. He took another photograph approximately fu·e 

(5) minutes later that showed a clean wing after the contaminants had disappeared IIOP IIJ. Mr. Elgee contacted 

the FAA upon his arrival into Seattle, where he was promptly met by Max Tidwell (Manager, Alaska Airlines 

CMO) and Michael Ownby (Supervisory Principal Operations Inspector, Alaska Airlines CMO~ The FAA obtained 

digital copies of the photographs directly from Mr. Elgee's camera sim card. 

The flight crew of Alaska Airlines Flight 86 was unaware of the incident until they were notified by company 

officials after reaching their hotel that evening. The crew immediately used the Aviation Safety Action Program 

(ASAP) and statements to the company, which were forwarded to the Alaska Airlines CMO 

The FAA re\·iewed Alaska Airlines' Cold Weather Operations I lOP IJI. their Ground Deicing Procedures I lOP 141 

and a Blue Ribbon weather packet I lOP 1~1 that provided the official reported weather conditions at Ted Stevens 

International Airport on January 7, 2011. 

The FAA also reviewed the Alaska Airlines Deicing/Anti-icing record for Alaska Airlines aircraft departing Ted 

Stevens International Airport on January 7, 2011 JIOP H•f. 

• Approximately one hour and 25 minutes prior to Alaska Airlines Flight 86 departure from Ted Stevens 

International Airport on January 7, 20 II: 

o Two Alaska Airlines aircraft (N763AS and N565AS) were deiced in accordance with company 

procedures that require o\·ernight aircraft to be pre-deiced if environmental conditions are 

forecasted to favor ice formation I lOP I.&). 

• Approximately one hour and 20 minutes after Alaska Airlines Flight 86 departed Ted Stevens International 

Airport on January 7, 2011: . 

o Two Alaska Airlines aircraft (N763AS and N565AS) were deiced due to observed environmental 

conditions. 

The block-out and off-deck times generated by the Aircraft Communications Addressing and Reporting System 

(A CARS) data from Alaska Airlines Flight 86 on January 7, 2011 are included in the timelines below. 

Ted Stevens International Airport (January 7. 20 Ill: 

1153: ATIS reported weather vas clear (CLR) with visibility 8 statute miles, a temperature/dew 

point of 13" F/12°F and no reported visible moisture. 

According to company procedures, the reported weather conditions, ~oupled with the crew 

statements that the aircraft was clean upon the initial preflight inspection, did not 

require the crew to initiate deicing procedures at the time of the initial walk-around. 

1226: Alaska Airlines Flight 86 blocks out of gate (via ACARS) [IOP 17). 

1236: ATIS reported weather was clear (CLR), but with visibility deteriorating to~ statue 

miles and mist (visible moisture)-

1246: Alaska Airlines Flight 86 departs Ted Stevens International Airport (via ACARS) [IOP 17). 

1251: ATIS reported weather was ceiling broken at 100ft (BKNOOl), with visibility~ statute 

miles and mist (visible moisture). 

On January 24, 20 II, the Alaska Airlines Certificate Management Office sent a certified Letter of InYestigation 

(LOI) to Jim Winkelman, Alaska Airline's Director, Flight Operations Compliance Quality Management I lOP .IMJ. 

Alasb Alrllnea, Inc. 

SECTION 8: NARRATIVE 

(Page2 of6) 

EIR: 2011NII020013 

NM02JDM 
• Fed•ull AVIatiOn 

AOm11ua1ration 

EIR: 2011NM020013 

Jim WinkelmruL on behalf of Alaska Airlines. submitted the company· s response to our il1Yestigation on February 

18, 20ll(IOP 191. 

Excerpt from Alaska Airlines' Resoonse (February 18. 2011): ••. This is consistent with the Boeing allowance [for) takeoff with small amounts of frost on the 

wing, which is accepted by other regulatory agencies outside the FAA, including the Canadian CAA, a group quite familiar with winter ops ... 

••• Alaska finds it unfortunate that this amount of attention is being expended on an issue that 

clearly ~as no safety impact and is compliant with the intent of the regulations. Intense 

scrutiny on a specific issue can actually compromise safety by creating (a) dist=action to other 

safety issues and lead to an increased threat in the flight deck. This increased threat level is 

proven to cause additional errors. FAA scrutiny on ~clean wingn vs dealing with conditions that 

may reasonably be expected to adhere has also driven the entire industry to a tremendous amount 

of unnecessary de-icing and over-spraying. This in turn has a significant environmental impact 

and also has led to cabin fume events caused by the excessive de-icing. These cabin fume events 

have led to air-turn-backs and aborted takeoffs all across the industry and are a true safety 

threat that seems to be largely ignored. 

Alaska Airlines has cooperated and provided documents and all data regarding the flight upon request The 

company has also instituted an approved checklist change (date of release Feb 2011} that requires crews to 

acknowledge the need for n secondary ice check prior to push back and engine start I lOP 211. The checklist change, 

however, was not instituted prior to Alaska Airlines Flight 86 on Janli!O' 7, 20 II. 

• Secondary Ice Inspection ... COMPLETEINOT REQUIRED 

On March 21,2011, Walter Bala (Supervisory Aviation Safety Inspector, Alaska Airlines CMO) conducted a phone 

interview with Mr. Elgee to gather more specific information regarding his statement. Mr. Elgee stated that he did 

not see any ,-isible moisture in the tenuinal area while at the gate or from his Yantage point on the aircraft. He 

confirmed that he did see contamination on the wing during the takeoff flOP llJ. T 

SECTION 8: NARRATIVE 

(Page 3 of6) 

EIR: 2011NM020013 

NM02JDM 
EXHIBITB 
1 ROBERT SPITZER RECEIVED 

MAY 1 ;:; 2013 

MILLS MEYERS SWARTLING 

2 FAA OFFICE OF REGIONAL COUNSEL 

3 - 1601 LIND AVE., SW 

. 4 RENTON, WASHINGTON 98057 

5 TELEPHONE:(425)227-l417 

6 FACSIMILE: (425) 227-1007 I CALENDARED 

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In the Matter of: 

Alaska Airlines Inc. 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

I MORRISON & FOERSTER 

I DOCKET DEPT. 

I I July 30, 2013 

1 For Date(s): -----

' Brian S. Mitchell 

FAA Case No. 2011NM020013 

JUDGE NOT ASSIGNED 

JUDGE NOT ASSIGNED: 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules ofPractice(l~ Code of Federal Regulations (C.F.R.) § 

13.208), and states as follows: 

I. 

·On May 1, 2013, Alaska Airlines Inc. (Alaska), was advised through a Final Notice of 

Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount of 

$16,000. On May 8, 2013, Alaska, through legal counsel, submitted a written request for a 

44 hearing. 

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II. 

Alaska is now and was at all times relevant herein the holder of Air Carrier 

Certificate No. ASAA802A. 

COMPLAINT 

FAA v Alaska Airlines Inc. 

FAACaseNo: 2011NM020013 

Page 2 of6 

ROBERT SPITZER, FAA ATTORNEY 

TEL: (425) 227-1417; FAX: (425) 227-1007 
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The above-described certificate was issued pursuant to 14 C.P.R. Part 1l9, and 

permits Alaska to operate aircraft pursuant to 14 C.F.R. Part 121. · 

At all times relevant herein Paragraph D085 of Alaska's Operations Specifications 

(OpSpecs) authorized Alaska to use N323AS,. a Boeing 737-990 Civil Aircraft 

(aircraft), in the .conduct of Alaska's Part 121 operations. · 

At all times relevant herein, ParagraphA023 of Alaska's OpSpecs authorized the use 

of Alaska's·Flight Operations Manual Section 6.100 Bulletin 10-25. · 

At all times relevant herein, the above described Flight Operations Manual, Section 

6.100 Bulletin 10-25, prohibited Alaska aircraft from taking off when frost was 

present on an aircraft's upper wing surface. 

·On or about January 7, 2011, Alaska operated the aircraft as Flight 86 (a ~art 121 

flight) between Anchorage, Alaska and Seattle, Washington. 

The above described flight departed Anchorage, Alaska despite the fact that frost was 

adhering to the aircraft's upper wing surfaces. 

By reason of the above, Alaska took off with an aircraft when frost was adhering to 

the wings of the iircraft. eIII. 

By reason Of the. foregoing facts and circumstances, Alaska violated the following 

34 sections of the Federal Aviation Regulations (14 C.P.R.): 

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a. 

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Section 119 .5(1), when it operated the aircraft under Part 121 when it failed 

to comply with its Operations· Specifications by taking off, the aircraft with 

frost on the upper wing surface; 

Section 121.629(b ), when it took off with an aircraft with frost on the upper 

wing surface. 

In accordance with Sections 46301(a) and (d) ofTitle 49 of the United States Code 

(U.S.C.) (Transportation) [49 U.S.C. §§ 4630l(a) and (d)], Alaska is liable for a civil 

. . penalty riot to exceed $27,500 for each of the violations noted. 

COMPLAINT 

FAA v Alaska Airlines Inc. 

FAA Case No: 2011NM020013 

Page 3 of6 

ROBERT SPITZER, FAA ATTORNEY 

TEL: (425) 227-1417; FAX: (425)227-1007 
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Under the facts and circumstances ·of this case, a civil penalty of $16,000 is 

appropriate. 

WHEREFORE, the Agency, by counsel, respectfully requests that theAdministrative 

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Law Judge enter an order that Alaska be assessed a civil penalty in the amount of$16,000. 

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13 . Respectfully submitted this day of 14th of May, 2013. 

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Robert Spitzer 

FAA Attorney 

COMPLAINT 

FAA v Alaska Airlines Inc. 

FAA Case No: 2011NM020013 

Page 4 of6 

ROBERT SPITZER, FAA ATTORNEY 

TEL: (425)227-1417; FAX: (425)227-1007 
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ANSWER 

In accordance with Section 13.209 of the Federal Aviation Regulations, Alaska, must answer 

this Complaint not later than thirty (30) days from the time it is served on it. Failure to file an 

Answer within thirty (30) days without good cause shall be deemed an admission of the truth 

of each allegation contained in the Complaint (14.C.F.R. § 13.209(f)]. 

COMPLAINT 

FAA v Alaska Airlines Inc. 

FAACaseNo: 2011NM020013 

Page 5 of6 

ROBERT SPITZER, FAA ATTORNEY 

TEL: (425) 227-1417; FAX: (425) 227-1007 
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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Complaint has been served via facsimile and Certified Mail 

- Return Receipt Requested this date, to the following: 

Federal Aviation Administration (Original and one copy) 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

800 Independence Avenue SW 

Washington, D.C. 20591 

Fax: (202) 493-5142 

I also certify that the foregoing Complaint has been served via First-Class and Certified Mail . 

-Return Receipt Requested this date, to the following: 

Geoffrey M. Grindeland 

Mills, Meyers, Swartling 

1000 Second Avenue, 30th Floor 

Seattle, WA 98104-1064 

Dated this 14th day of May, 2013. 

COMPLAINT 

FAA v Alaska Airlines Inc. 

FAA Case No: 2011NM020013 

Page6of6 

ROBERT SPITZER, FAA ATTORNEY 

TEL: (425) 227-1417; FAX: (425) 227-1007 
EXHIBITC 
JUSTIN MEISBERGER; August 01,2013 

1 UNITED STATES OF AMERICA 

2 DEPARTMENT OF TRANSPORTATION 

3 OFFICE OF HEARINGS WASHINGTON, D.C. 

4 

In the Matter of: 

5 

6 Alaska Airlines 

FAA Case Number 

7 2011NM020013 

8 

9 

10 DEPOSITION UPON ORAL EXAMINATION OF 

11 JUSTIN MEISBERGER 

12 

13 9:56A.M. 

14 AUGUST 1, 2013 

15 4800 SOUTH 188TH STREET, SUITE 240 

16 SEATAC, WASHINGTON 

17 

18 

19 

20 

21 

22 

23 

24 REPORTED BY: SALLY J. HANDS, CCR 2191 

25 

• 

YAMAGUCHI OBIEN MANGIO ~ourt reporting, video and videoconfereneln.g 

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Page I 
JUSTIN MEISBERGER; August 01,2013 

10 

11 

12 

APPEARANCES 

FOR ALASKA AIRLINES' 

WILLIAM V. 0' CONNOR 

Morrison & Foerster 

12531 High Bluff Drive, Suite 100 

San Diego, California 92130 

858.720.7932 

woconnor@mofo com 

JEREMY ROSS 

Alaska Airlines 

19300 International Blvd. 

Seatac, Washington 98188 

206.392.5040 

FOR THE FEDERAL AVIATION ADMINISTRATION: 

ROBERT D. SPITZER 

13 Federal Aviation Administration 

1601 Lind Avenue, ANM-7 

14 Renton, Washington 98057 

425.227.1417 

15 

16 

robert. spitzer®faa. gov 

17 

18 

19 

2 0 ALSO PRESENT: None 

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23 

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1 

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I N DE X 

3 EXAMINATIONS BY' 

4 MR. O'CONNOR 

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7 EXHIBITS FOR IDENTIFICATION 

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9 Exhibit B 

10 Exhibit C-1 

11 Exhibit C-4 

12 Exhibit C-17 

13 Exhibit C-22 

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Exhibit C-15 

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Exhibit C-2 

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Exhibit c-s 

17 

Statement of Case 

Initial Notification 

AS Briefing Packet 

ACARS Messages 

Record of Telephone 

Conversation 

Blue Ribbon Weather Report 

FAR(s) Violated document 

Flight Information 

Exhibit C-6 Witness Statement and Letter 

18 from Mr. Ownby to Mr. Elgee 

dated January 20, 2011 

19 

Exhibit C-16 Alaska Airlines, CWP-04, 

20 Deicing/Anti-Icing Record 

21 Exhibit C-14 Ground Deicing/Anti-icing 

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Program Overview 

Exhibit A EIR Review Checklist 

Page 2 

Page 3 

PAGE (S) 

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109 

• 

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SEATAC, WASHINGI'ON; AOOUST 1, 2013 

9:56A.M. 

--dJo--

JUSTIN MEISBERGER, 

2 .. 5 

Page 4 

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sworn as a witness by the Certified Court Reporter, 

testified as follows: 

EXAMINATION 

9 BY MR. O'CONNOR: 

10 Q. Good morning, Mr. Meisberger. Did I --

11 A. You did. 

Q. -- pronounce that correctly? 

A. You did. 

Q. Are you ready to proceed? 

A. I am, yes. 

12 

13 

14 

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16 Q. Can you state your full name for the record. 

17 A. Justin Douglas Meisberger. 

18 Q. And what is your current occupation or 

19 employment? 

20 A. I'm an aviation safety inspector with the 

21 Federal Aviation Administration attached to the Alaska 

22 Airlines 00. 

23 Q. And QoiO stands for what? 

24 

25 

1 

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A. Certificate Management Office. 

Q. Did you have the same title --

A. I did. 

Q. -- in January 2011? 

A. I did. 

Page 5 

Q. One of the things we'll have to keep in mind 

5 throughout the morning is that we try to talk one at a 

6 time. I know it is notmal in regular conversation to 

7 anticipate questions, but for the benefit of Sally, 

8 we •11 have to just do question and answer. 

9 What are your current duties and 

10 responsibilities as an aviation safety inspector for 

11 the Alaska Certificate ManagE!IOOilt Office? 

12 A. I provide oversight strictly for the airline. 

13 This whole office is dedicated just to Alaska Airlines, 

14 illllike other FAA offices. And the duties and 

15 responsibilities fall within my scope, everything from 

16 manual revisions, enforcem:nts, to working on special 

17 projects for the airline themselves. I focus rrore on 

18 technology. So for instrument procedure developrrent 

19 they do specifically in the state of Alaska, I work 

20 very closely with them. 

21 So this office is all Alaska Airlines; but we 

22 each have our own kind of little specialty that we fall 

23 into, and mine is rrore the technology focused as of 

24 late. 

25 Q. Okay. For purposes of today, we'll probably 
JUSTIN MEISBERGER; August 01, 2013 14 .. 17 

Page 14 Page 16 

1 deposition today -- and it also helped refresh your 1 A. Yes. 

2 recollection as to the investigation into Flight 86 --

3 was not redacted; is that correct? 

4 A. That is correct. 

5 Q. And do you see, on the bottom of Section B, it 

6 says, Section B: Narrative, Page 1 of 6? 

7 A. Yes, I see it. 

8 Q. Do you have that? 

9 A. (Nodding.) 

10 Q. But the pages that are included within 

11 Exhibit B only go up to page 3; correct? 

12 A. That is correct. 

13 Q. And what I want to know, is there any factual 

14 matters -- strike that. 

15 Is it correct that there are an additional 

16 three pages of this Section B narrative? 

17 

18 

A. That is correct. 

Q. And you revi~ the additional pages, 

19 pages 4, 5, and 6? 

20 

21 

22 

A. I did. 

Q. And did that include a narrative? 

A. No -- a narrative, no, of the facts. If that 

23 is -- if I can --

24 MR. SPITZER: Well, I'm going to object 

Q. -- Section C; right? 

A. Yes. 

4 Q. One at a time. 

5 There are items of proof in Section C that I 

6 cannot find any reference to in Section B, which leads 

7 me to believe that there are factual matters referred 

8 to in pages 4, 5, and 6. Do you agree with that? 

9 A. I agree with ycur asSUI1ption, yes. 

10 Q. Okay. So I'm con;:ect that there are factual 

11 matters described in pages 4, 5, and 6 of the Section B 

12 narrative? 

13 

14 

15 

MR. SPITZER: I 'm going --

A. I would not disagree with that. 

MR. SPITZER: I'm going to object to 

16 this continuing line of questioning. This is 

17 privileged information. What's in the Section B that's 

18 been provided to you -- or rather what hasn't been 

19 provided to you is privileged information. Continuing 

20 to ask this witness about that information is just 

21 getting into privilege. So let's move the line of 

22 questioning along to something else that's relevant to 

23 what we're here for today. 

24 MR. O'CONNOR: I think as far as -- it 

25 to this continued line of questioning. This deals with 25 is literally impossible to test the privilege, because 

Page 15 

1 things that have been redacted for the purpose of 

2 privilege, so it is not really a subject for this 

3 investigation. 

4 What he looked at or didn't look at, the place 

5 to bring that up is a motion in limine; it's not in 

6 this. So this -- let's move on from this line of 

7 questioning. 

8 MR. O'CONNOR: Well, let's establish the 

9 privilege. 

10 Q. (BY MR. O'CONNOR) Sections 4, 5, and 6, did 

11 that have any reference to any factual matters 

12 involving Flight 86? 

13 MR. SPITZER: Again, this isn't the 

14 witness to go through that with. 

Page 17 

1 we don't even know the basis for it. I think -- you've 

2 said it's privileged. I don't know what privilege ycu 

3 are referring to. So for the record, let's just have 

4 the basis for the privilege for pages 4, 5, and 6. 

5 MR. SPITZER: The basis for the 

6 privilege on pages 4, 5, and 6 -- this isn't the place 

7 for ·us to do this. But in the interest of cooperation 

8 on the part of the FAA is it's deliberative process, 

9 which is protected; attorney work-product, which is 

10 protected; and also opinion, which is protected -- or 

11 rather it is just attorney wcrk-product. 

12 So if you want to go into this, we can go into 

13 this with motions in front of the judge. But using 

14 this witness for that, is not the appropriate time or 

15 Q. (BY MR. O'CONNOR) Do you have the question in 15 place for that. 

16 mind? 16 Q. (BY MR. O'CONNOR) Did you -- did you 

17 A. I think what you are asking is, is did the 17 prepare -- well, let's back up. 

18 narrative stop. 18 Did you prepare Section B of the EIR? 

19 Q. No. What I'm asking specifically is whether -- or§?~· A. I did. 

20 there was any factual matters regarding Flight 86 

21 contained on pages 4, 5, and 6. 

22 A. I don't believe so. 

23 Q. Here's why I ask, because in this -- and we'll 

24 get to this in a bit. But the items of proof, I think 

25 that's also called --

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20 Q. Did you have any assistance in preparing 

21 Section B of the EIR? 

22 MR. SPITZER: I 'm going to object to 

23 that. That's privileged: deliberative process. Let's 

24 move on from this line of questioning. 

25 Q. (BY MR. O'CONNOR) Did you prepare pages 4, 5, 
JUSTIN METSBERGER; August 01,2013 18 .. 21 

Page 18 Page 20 

1 and 6 of the Section B of the EIR? 

A. I did. 

3 Q. Did you prepare pages 4, 5, and 6 of the EIR 

4 report at the direction of any attorney? 

5 _ MR. SPITZER: I'm going to object to 

6 this continuing line of questioning. This is not to --

7 this is privileged infomation. What went into the 

8 preparation is part of the deliberative process of the 

9 FAA. This is protected. So let's move the line of 

10 questioning to what the investigation entails, not the 

11 writing of infomation that is privileged. 

12 MR. O'CDNNOR: I'm just trying to get 

13 this to make sure we have a record. I just want to be 

14 sure that he wasn't preparing pages 4, 5, and 6 at the 

15 direction of a lawyer, and that's all. 

16 MR. SPITZER: If you want to challenge 

17 various privileges that we're claiming in this case, 

18 the place to challenge that is in the discovery 

19 process, not through this deposition. So let's move 

20 on. 

21 MR. O'CDNNOR: Again, I'm just trying to 

22 narrow the basis for the privilege. If he tells me 

23 that a lawyer didn't --

24 MR. SPITZER: And --

25 MR. O'CDNNOR: -- ask him-- we've got 

Page 19 

1 to talk one at a time. 

2 

3 

MR. SPITZER: Go ahead. 

MR. O'CDNNOR: If he tells me that a 

4 lawyer didn' t ask him to prepare Sections 4 , 5, and 6 

5 that's relevant to work product; that's all. 

6 MR. SPITZER: Well, this isn't the 

7 place -- the idea of this deposition isn't to go into 

8 what we're claiming is privileged. And it is 

9 deliberative process. We've already gone over that. 

10 MR. O'CDNNOR: Okay. So he's not going 

11 to tell me -- he can't tell me whether or not a lawyer 

12 asked him to prepare pages 4, 5, and 6? That's an 

13 instruction not to answer? 

14 MR. SPITZER: Go ahead and answer that. 

15 A. No, a lawyer did not tell me to prepare pages 

16 4, 5, and 6. 

17 

18 

Q. (BY MR. O'C'OIIOOR) Thank you. 

Mr. Meisberger, did you keep a file on your 

19 investigation on the Flight 86 incident? 

20 A. Yes, I did. 

21 Q. And what's contained within your file? 

22 A. What's contained within the file are the work 

23 products that were used to build the enforcement jacket 

24 that was sent. 

25 Q. Okay. Is there another tennino1ogy we could 

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1 use besides the work product? Your working papers, is 

2 that ... 

3 A. Working papers is fine. 

4 Q. Work product means samething legally. 

5 the JM.terials that you --

6 A. There you go. 

Q. -- you used to build the file. 

A. Yes. 

So just 

7 

8 

9 Q. And what types of documents would be included 

10 within your file? 

11 A. Documents included in the file were Word 

12 documents, drafts, the actual -- we call them IOPs, but 

13 the evidence that are referred to here is IOP 1, 2, 3 

14 and on, those individual pieces. So when it ~Jas put 

15 together, they were all printed out and put in nicely: 

16 any e-mails that may have been corresponding with the 

17 company, with my bosses, those types of materials. 

18 Q. Okay. And can you describe for me the process 

19 of how the EIR report gets prepared. Fran looking at 

20 it, it appears to me, but I could be wrong, that it is 

21 done through a COilpllter system; right? 

22 A. It is not -- are you asking if it is like a 

23 Web-based conputer system? 

24 Q. Sure. 

25 

1 

A. No, it is not. 

Page 21 

Q. How do you go about preparing the EIR report? 

2 A. We have an office manual procedure that walks 

3 you through -- and this is relevant to every FAA 

4 office -- on how you do it. You follow guidance in 

5 8900, which is our agency-wide manual on how to do our 

6 jobs. And in there, it spells out the process, A to Z, 

7 about how you go about putting together an enforcement 

8 to be sent up to legal if it goes that route. 

9 Q. And how is it determined whether it is going 

10 to go to legal? 

11 A. There is another docurrent; it is called a 

12 2150. And that specifically deals with the enforcement 

13 process. There is a checklist, for lack of a better 

14 term, that you actually -- when you have an issue or an 

15 incident or event that may go to an EIR, you actually 

16 will run this checklist, and it will tell you whether 

17 or not it is something that would go to an 

18 administrative action. Or based on the circumstances 

19 known at the time, if it needs to go to legal counsel 

20 and then they need to work with it. 

21 Q. Okay. So I just want to -- and without 

22 reference to this particular investigation, I just want 

23 to understand tenninology here. You mentioned 

24 administrative action. 

25 A. Uh-huh. 
JUSTIN MEISBERGER; August 01,2013 

Page 46 

1 fran Alaska? 

A. I received -- I believe I received the weather 

3 infomation that was given on the dispatch. But the 

4 actual whether that I used was a Blue Ribbon weather 

5 package that was included that came from -- I'm not 

6 sure if it was a NOAA or FAA specific way, but it was 

7 an unbiased weather shot. 

8 Q. Just so we can get oriented, then, let's pull 

9 these items ·out of the items of proof so that we lmow 

10 who's on first. 

11 First, the dispatch and release, I think, is 

12 cited in the Section B report as IOP 4. May not refer 

13 to it exactly, but I think that's what you're --

14 A. I believe so. 

15 Q. So if you could pull out IOP 4 for me. I 

16 apologize, but it is not indicated on the package, so I 

17 have to figure it out this way. 

18 Could you get me that entire package, and then 

19 we're just going to mark it as Exhibit C-4. 

20 (Deposition Exhibit C-4 was marked 

21 for identification.) 

22 Q. (BY MR. O'CONNOR) So I've handed you what 

23 I've marked as Exhibit C-4. And the 4, just for the 

24 record, refers to the item of proof number that you've 

25 assigned in the Section B narrative. 

Page 47 

1 Is that the dispatch package that you 

2 requested from Alaska? 

3 A. It is. 

4 Q. Okay. And the reason why this was included 

5 within the investigation materials is just to establish 

6 that there was the flight? 

7 A. Yes. 

8 Q. Okay. Anything else that's significant in 

9 that package? 

10 A. I do not recall that there was another reason 

ll that I was including the dispatch release. 

12 Q. Okay. Now, the other item you mentioned was 

13 the ACARS messages. If you could flip through the 

14 jacket there and find those there for me. 

15 Did you find the ACARS message? 

16 A. I did. 

46 . .49 

1 

2 

3 

Page 48 

(Deposition Exhibit C-17 was marked 

for identification.) 

Q. (BY MR. O'CONNOR) Let's talk about those 

4 ACARS messages for a minute, because I think in your 

5 narrative -- well, you used the ACARS messages for what 

6 puzpose? 

7 A. The ACARS messages are message traffic, kind 

8 of like text messages, that are done from dispatch or 

9 could also be maintenance. They are sending data 

10 messages to and from the jet itself. This can be used 

11 to pass, like I said, text messages to the crew. It 

12 can also be used for the crew to pass messages either 

13 on to dispatch or maintenance or, I believe, someone 

14 else of their choosing, depending how their system is 

15 set up. 

16 Q. Okay. And you used these messages to 

17 establish the timeline that's on page 2 of the 

18 narrative; correct? 

19 A. Yes. 

20 Q. Okay. Before we get into the details of these 

21 messages, if you could, just walk me through it. This 

22 was a flight that was scheduled to depart about midday? 

23 A. 12:30, I believe. 

24 Q. -no you lmow what time it actually ..• ? 

25 A. I 'd have to look at the notes . 

Page 49 

1 Q. Okay. Why don' t you take a look. 

2 A. (Witness reviewing document.) 

3 From the notes that I have on page 2, the 

4 aircraft blocked out, which means they pushed back from 

5 the gate, at 12: 26. And then the aircraft actually 

6 departed the airport at 12: 46. 

7 Q. So from the time it is pushed back from the 

8 gate until wheels up is about 20 minutes? 

9 A. Yes. 

10 Q. And then you also -- going back to page 2 of 

11 Section B, you have your narrative here where you have 

12 an automated teilllinal information weather report at 

13 11:53. Do you see that? 

14 A. Yes; the first line. 

15 Q. Okay. And at least that weather report at 

16 11:53 on January 7th, there was no reported visible 

17 Q. And can you tell me which item of proof number 17 ooisture in the area of the teilllinal, which is 

18 that is referred to in your Section B narrative. 

19 A. I believe it is !OP 17, if you look down at 

20 the block in the bottom. 

18 essentially the airport; right? 

19 

20 

A. That ' s correct . 

Q. You also have a statement following the 

21 Q. Okay. And the block that you are referring to 21 teilllinal information at 11:53 that says, According to 

22 is on page 2 of Exhibit B; correct? 22 coq>any procedures, the reported weather conditions, 

23 A. Yes. 23 coupled with the crew statements that the aircraft was 

24 MR. O'CONNOR: Okay. Let's go ahead and 24 clean upon initial preflight inspection, that this did 

25 oork that as C-17. 

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25 not require the crew to initiate deicing procedures at 
JUSTIN MEfSBERGER; August 01,2013 

Page 50 

1 the time of the initial walk-around. 

2 A. That is correct. 

Q. Okay. And do you know approximately what time 

4 the initial walk-around took place? 

5 A. I do not recall if it was even mentioned in 

6 the report . 

7 Q. Okay. But in any event, based on the weather 

8 infomation at 11:53 a.m. on January 7th, there was 

9 nothing that would require the crew to initiate deicing 

10 procedures; is that right? 

11 MR. SPITZER: I 'm going to object . That 

12 calls for expert testimony. He's already testified 

13 he's not an expert on the issues of what their op specs 

14 called for at the time of the violation. So .•• 

15 Q. (BY MR. O'CONNOR) Mr. Meisberger, who wrote 

16 that statement? 

17 A. I did. 

18 Q. And do you consider yourself familiar enough 

19 with the Alaska Airlines operation specifications and 

20 the flight operations manual to make the determination 

21 whether or not deicing procedures were required based 

22 on the weather infomation? 

23 A. That is correct: I do. 

24 Q. You consider -- you have the ability to make 

25 those determinations, don • t you? 

Page 51 

50 .. 53 

1 

2 

Page 52 

MR. O'OJNNOR: It wasn't compound. 

Q. (BY MR. O'CONNOR) Fran the time of the 

3 walk-around to takeoff, do we have any infomation to 

4 tell us whether or not there was any visible 100isture 

5 in the area? 

6 A. There is the initial e-mail from John Elgee 

7 that said the flight deck then advised we were waiting 

8 for taxi clearance because of low visibility, in 

9 parentheses, fog, which would be considered visible · 

10 moisture. That was off of the witness's statement. 

11 However, I believe, in a later official 

12 statement that he gave, he said -- he actually stated 

13 there was no visible moisture. I believe he said that 

14 verbatim. I can double-check when we get into that. 

15 But I believe that statement was in there. 

16 Q. Okay. Let's pull that out. It is in 

17 the jacket of materials -- well, let's -- I've seen a 

18 document -- before we go there --

19 A. Okay. 

20 Q. -- Mr. Bala decides to call Mr. Elgee late 

21 March 2011; right? 

22 A. (Nodding. ) 

23 Q. Why didn't you call him? 

24 MR. SPITZER: Objection. It is 

25 deliberative process. 

A. Given the information that I had, I believe 1 

Page 53 

Q. (BY MR. O'CONNOR) In any event, Mr. Bala 

2 that is a correct statement. 

3 Q. And that was a conclusion that you reached; 

4 correct? 

5 A. It ~m.s. 

6 Q. And based on your experience as a pilot, what 

7 is the significance of visible 100isture? 

8 MR. SPITZER: I'm going to object again. 

9 That calls for an expert conclusion. 

10 MR. O'OJNNOR: Are you instructing him 

11 not to answer? 

12 

13 

MR. SPITZER: Yes. 

MR. O'OJNNOR: Okay. 

14 Q. (BY MR. O'CONNOR) In any event, you 

15 considered it important enough to include a statement 

16 that there was no reported visible 100isture based on 

17 the weather infomation reported at 11:53; right? 

18 

19 

A. That is correct. 

Q. Okay. And do you know whether or not there 

2 calls Mr. Elgee, and he has three questions for him, 

3 doesn't he? 

4 A. I believe it ~m.s three questions. 

5 Q. Okay. Do you recall what those three 

6 questions were? 

7 

8 

9 

10 

A. Not without referring to the packet. 

Q. Okay. Let's find it. 

MR. ROSS: Second page fran the end. 

Q. (BY MR. O'CONNOR) It is a document entitled 

11 Record of Conversation. Do you have that in front of 

12 you? 

13 A. I do. 

14 Q. Okay. And that record of conversation is 

15 included within the items of proof, Section C, of the 

16 EIR report, is it not? 

17 

18 

A. It is. 

Q. Okay. I couldn • t find any reference to this 

19 record of conversation in the unredacted portions of 

20 was any visible IOOisture in the area from the time from 20 Section B. Can you help me find it? 

21 the initial walk-around to takeoff? Do we have any 

22 infomation on that? 

23 A. If you give me a moment --

24 MR. SPITZER: It is a compound question. 

25 Which one do you want him to answer? 

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21 A. (Witness reviewing document.) 

22 I believe it -- it was on page 3, and it is 

23 after IOP 22. Unless it actually is IOP 22. 

24 Q. No, I think you found it for us. 

25 MR. 0' OJNNOR: Let's do this: Let's 
JUSTIN MEISBERGER; August 01,2013 62 .. 65 

Page 62 

1 Q. (BY MR. O'CONOOR) And as far as your 1 

Page 64 

MR. SPITZER: Same objection. It is 

2 investigation was concerned, were you focused in any 

3 way on the possible contamination on the right wing? 

4 

5 

A. No. 

Q. Why? 

6 A. Because we only had evidence for the left, 

7 supposedly. 

8 Q. What do you mean by supposedly? 

2 deliberative process. 

3 MR. O'CONNOR: Okay. Rob, we're 

4 entitled to know the expert's opinions and conclusions. 

5 MR. SPITZER: You are welcome to depose 

6 our expert. We've identified the expert. We've give!l 

7 you his name; we've given you his address, his 

8 telephone number. I mean at some point, we'll send you 

9 A. I had two pictures of the left wing. I didn't · 9 a resurre as soon as he sends it to us. You are 

10 have anything from the right side of the aircraft. 

11 Q. Okay. Now, I don't need to know what was 

12 discussed or what went into any deliberative process 

13 related to an expert looking at these photos, but did 

14 an expert, in fact, look at these photographs to 

15 determine whether there was contamination on the wing? 

16 MR. SPITZER: I'm going to object to 

17 that again. It is deliberative process. 

18 MR. 0' CONNOR: Well, Rob, I mean you are 

19 going to have an expert testify at the hearing --

20 MR. SPITZER: Whether he was involved 

21 with the witness that's here is deliberative process. 

22 We are going to have an expert testify; I'll 

23 admit to that. But it is what went on with the 

24 conversation putting together the EIR. That's all 

25 deliberative. So it is privileged. 

Page 63 

10 entitled to depose him. But asking our witness here, 

11 who is a fact witness and who assembled the EIR, is 

12 completely different things. 

13 MR. O'CONNOR: Okay. 

14 MR. SPITZER: You are welcome -- we're 

15 an open book. You are welcome to talk to him. You are 

16 welcome to depose him. We'll set it up gladly. But in 

17 this context, it is not appropriate for what goes on 

18 back and forth between the offices. 

19 MR. O'CONNOR: Here's the deal. We 

20 asked for the identification of the expert and his 

21 opinions in our discovery. We were referred to the EIR 

22 report as containing that information in lieu of 

23 responding to an interrogatory specifically on that 

24 issue. 

25 MR. SPITZER: Well, the response --

MR. O'CDNNOR: I think it goes to the 1 

Page 65 

MR. O'CDNNOR: Let me finish. Let me 

2 credibility of this whole process as to whether or not 

3 an expert was consulted before the investigation was 

4 completed or afterwards. 

5 MR. SPITZER: Okay. And I'm instructing 

6 the witness not to answer that. 

7 

8 

MR. O'CONNOR: On what basis? 

MR. SPITZER: It is deliberative 

9 process. What goes into putting together the EIR is 

10 what you have here. And I don't think we need to have 

11 a conversation of what went on between the various FAA 

12 offices concerning our expert who was consulted, who 

13 wasn' t . That ' s all internal. 

2 finish. 

3 That information is not contained in this 

4 report. So what I'm trying to establish is that we 

5 don't have that discovery that we asked for. 

6 MR. SPITZER: I'm not going to -- that 

7 information is forthcoming. We will provide that 

8 information. We will stipulate that the EIR that 

9 you've been supplied doesn't have that report in it. 

10 But let's move on from that. Any conversations 

11 internally what's going on, it is not appropriate for 

12 this deposition. And we can have that conversation in 

13 a different forum, but this isn't the place for it. 

14 Q. (BY MR. O'CONNOR) There• s no reference in the 14 MR. O'CDNNOR: Just for the record, you 

15 EIR to any analysis or opinion by an expert in aircraft 

16 icing issues; correct? 

17 A. Correct . 

18 Q. You are not an expert in aircraft icing 

19 issues? 

20 

21 

A. That is correct . 

Q. So again, the question is, was an expert 

22 consulted regarding contamination of the wings on 

23 Flight 86 after the EIR report was canpleted? 

24 MR. SPITZER: Same objection. 

25 Q. (BY MR. O'CONOOR) If you know. 

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15 are not going to let him answer the question as to 

16 whether or not an expert in aircraft icing issues was 

17 consulted prior to the completion of the EIR report? 

18 MR. SPITZER: Yes, that's correct. 

19 That's deliberative process. That is the essence of 

20 deliberative process. 

21 I've been pretty liberal with, you know, 

22 letting the questions of who supervises him and 

23 everything else, letting him answer that stuff. But at 

24 this point, we're getting pretty far afield of what 

25 he's here for today, which is to testify about his 
JUSTIN MEISBERGER; August 01,2013 

- Page 66 

1 investigation and what he observed as a fact witness in 

2 this case. 

3 MR. 0' CXJNNOR: Okay. 

4 Q. (BY MR. O'CONOOR) If you take a look at --

5 back to Exhibit B. And we're getting into Alaska 

6 Airlines, Inc., violated FARs, Federal Aviation 

7 Regulations, and you have Item of Proof Nt.unber 2 . And 

8 the version I've been provided is redacted. Do you 

9 have that in front of you? 

10 A. Yes. 

11 Q. And so in teiii\S of what's been provided to 

12 Alaska, there's no -- we don't have infoimation 

13 regarding -- other than these violations, other than 

14 what's referred to as the Item of Proof Nt.unber 2; 

15 correct? 

16 

17 

A. Correct. 

MR. 0' CXJNNOR: And I take it, 

66 .. 69 

Page 68 

1 on this and any discussions that went into it. 

2 MR. O'CONNOR: Okay. What's privileged 

3 about a recitation of two FARs? 

4 MR. SPITZER: Well, it is specific 

5 recitations, the choosing of which FARs are listed in 

6 here. That's a deliberative process. There's a couple 

7 thousand FARs, and obviously, we just didn't mail in 

8 the FAR book. So the fact -- which ones these are, 

9 what went into choosing -- first of all, it shouldn't 

10 have been supplied, but any conversation about it is 

11 privileged. 

12 MR. O'CXJNNOR: So just so we're clear, 

13 he's not -- I can't -- if I ask him questions about 

14 Item of Proof Number 2, are you going to instruct the 

15 witness not to answer? 

16 MR. SPITZER: You are welcotre to ask 

17 questions about what the letterhead says and the 

18 Mr. Spitzer, what's been redacted is deliberative in 18 bottom. But anything that went into producing this 

19 tenns of what this investigator felt might or might not 19 item of proof is privileged, and I'm going to instruct 

20 have been a violation of the FARs -- 20 him not to answer. 

21 

22 

MR. SPITZER: Yes, that's correct. 

Q. (BY MR. 0' CXJNNOR) I don' t want to know what 

23 you wrote. I just want to know what the toPic is in 

24 that blocked-out section generally. Don't tell me 

25 about this accident. I just want to know what the 

Page 67 

1 purpose is of discussion that we're not allowed to see. 

2 A. Stating what specific FARs that were believed 

3 to have been violated. 

4 

5 

Q. Just the FARs themselves or the reasons why? 

A. The FARs, with a -- how do I say it? -- a 

6 staterrent of how I believed they could have been 

7 violated based off of the event . 

Q. That's fair. I don't want to know what you 

9 believe. I just want to know what would have been in 

10 that section. 

11 MR. 0' CXJNNOR: And for the record, 

12 that's deliberative; that's the privilege that's being 

13 asserted on that? 

14 MR. SPITZER: That's the privilege we're 

15 asserting. 

16 Q. (BY MR. O'CONNOR) Okay. Now, if you take a 

17 look at the reference to IOP 2, just so we know what 

18 we're talking about -- if you could grab that out of 

19 your packet --

20 MR. SPITZER: And this, also, shouldn't 

21 

22 

23 

24 

MR. O'CONNOR: Let's mark that as C-2. 

(Deposition Exhibit C-2 was marked 

for identification.) 

Q. (BY MR. O'CXJNNOR) Mr. Meisberger, your 

25 counsel will not allow you to answer questions 

Page 69 

1 regarding the two FARs that are listed in Item of Proof 

2 Number 2, Exhibit C-2. All I want to know is, did you 

3 select those two regulations for inclusion in the EIR 

4 report? 

5 MR. SPITZER: I'm going to instruct him 

6 not to answer that . 

7 

8 

MR. O'CDNNOR: Okay. 

Q. (BY MR. O'CONNOR) Putting aside whether or 

9 not you were the one that decided to include these 

10 regulations, are you familiar with FAR 119.5 --

11 A. Yes. 

12 

13 

Q. -- as a general matter? 

A. Yes. 

14 Q. How does it work as a practical matter? What 

15 is that FAR all about? 

16 MR. SPITZER: Objection. Calls for a 

17 legal conclusion. 

18 MR. O'CXJNNOR: Well, that's a little bit 

19 on the edge here. I mean his job is as a regulator --

20 MR. SPITZER: He's not here as an 

21 have been released. This was inadvertently released by 21 expert. Calls for a legal conclusion. How regulations 

22 our office. So any discussion about what went into 

23 this is deliberative. Obviously, it is out of the 

24 bag-- you guys have it -- but it shouldn't have been 

25 released. It's still --we're still claiming privilege 

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22 work is ftmdamentall y a legal conclusion. That's for 

23 the lawyers, not for an individual who is an inspector. 

24 He's charged with enforcing them, not with coming up 

25 with them and/or interpreting them. 
JUSTIN MEISBERGER; August 01, 2013 

Page 74 

1 A. Oh, correct. 

2 Q. And that's just an excerpt from his statement; 

3 correct? 

4 A. Correct . 

5 Q. How did you receive that statement fran him, 

6 if you recall? 

7 A. I would have to check. But I believe that 

8 might have been fran an e-rrail, I believe. But I'll 

9 need to double-check that'' s how I got ahold of. that. 

10 Q. Let's pull out and get identified and marked 

11 IOP 6. And I'm a little unclear what should be 

12 included in that reference. 

13 Hold on, though; there might be DXlre to it. 

14 Mr. Meisberger, would you just check to see if 

15 this should be also included in IOP 6, the letter fran 

16 Mr. OWnby, the Privacy Act notice, because I think it 

17 should be all one, included together; is that right? 

18 A. I believe so. I will have to check my files. 

19 But I believe this came in via e-rrail as a response to 

20 this (indicating) . 

21 Q. Okay. So let's do this. Let's get that all 

22 marked as Exhibit C-6 and have you identify C-6 for the 

23 record. 

24 A. C-6 is the witness statement fran John Elgee. 

25 Q. And that's the first page of C-6. Can you 

Page 75 

74 .. 77 

Page 76 

1 A. Correct. 

2 Q. Why is it that Mr. Wade is the person who's 

3 taking the lead in getting a statement from Mr. Elgee? 

4 MR. SPITZER: Objection. Deliberative 

5 process. 

6 

7 

Don' t answer . 

Q. (BY MR. O'CONNOR) Well_! ... } mean you told me 

8 before that Mr. Wade's involvement in all of this is 

9 because the way the chain of cCli!IIIaild works when 

10 Mr. OWnby is not around, he can review matters that 

11 otherwise Mr. OWnby would have to review; is that 

12 correct? 

13 MR. SPITZER: This is -- I mean what 

14 happens, generally, was what you asked questions about. 

15 What you are asking here is specific, and specifics are 

16 protected by deliberative process. This is 

17 deliberative process. So mve on. 

18 Q. (BY MR. O'CONNOR} Was Mr. Wade involved in 

19 this investigation? 

20 MR. SPITZER: Same objection. 

21 Don't answer. 

22 Q. (BY MR. O'CONNOR) Did Mr. Wade gather any 

23 facts related to this investigation? 

24 MR. SPITZER: Same objection. 

25 Actually, you can ans>ter that. I'm sorry. 

1 describe for me the pages that follow the statement 1 

Page 77 

A. He obtained a statement. The statement that 

2 fran Mr. Elgee. 

3 A. I will. And just to clarify, in the very 

4 beginning, it does say, Statement provided by John 

5 Elgee via e-rrail to Joel Wade. So that is how this did 

6 cane into the office. 

The first page is going to be the e-rrail 

8 official staterrent fran Mr. John Elgee. The following 

9 two pages -- three to include the Privacy Act notice --

10 is a request on FAA letterhead fran this office signed 

11 by Michael Ownby to Mr. Elgee to provide an official 

12 statement as well as a set of questions that were 

13 bulletized for him to answer to help clarify this 

14 investigation. 

15 Q. Thank you. The signature on page 2 of the 

16 letter to Mr. Elgee, whose signature is that? 

17 A. That is Joel Wade signing for Mr. Ownby, which 

18 is a standard practice for an assistant POI when the 

19 POI is not here. 

20 Q. So Mr. Wade was involved in the process of 

21 obtaining an official statement from Mr. Elgee; 

22 correct? 

23 A. Correct. 

24 Q. And it appears that Mr. Elgee e-mailed his 

25 response to Mr. Wade; true? 

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2 we were referring to, which would be Number 6; is that 

3 _correct? 

4 

5 

Q. (BY MR. O'CONNOR) Yes. Anything else? 

A. I believe that is the only fact or proof --

6 item of proof that he provided for the investigation. 

7 

8 

9 

10 

11 

Q. Did he review your EIR? 

MR. SPITZER: Same objection. 

Don' t answer . 

MR. O'CONNOR: I'm not -- on what basis? 

MR. SPITZER: It is deliberative 

12 process. Whether he revie>!ed it or not is imrraterial. 

13 The fact of the rratter is we have an EIR. It is 

14 sitting before you. You can ask all the questions you 

15 want about the EIR and about what went into the 

16 investigation. But review and the internal processes, 

17 we've shared with you generally what they are. But 

18 what happened with this particular one, it's not for 

19 the depcsition. It is protected. 

20 MR. O'CONNOR: I don't see what is 

21 deliberative about whether or not a person, as a matter 

22 of fact, reviewed the EIR. 

23 MR. SPITZER: That's inherently a 

24 deliberative process. That is a -- whether sorrebody 

25 who was involved in the review of this or not, that is 
JUSTIN MEISBERGER; August OJ, 2013 106 .. 109 

Page I 06 Page I 08 

1 

2 

A. 'That is correct. 

Q. Okay. What took so long? 

3 MR. SPITZER: Objection. Deliberative 

4 process. 

5 Don' t answer. 

6 Q. (BY MR. O'CON!«lR) In your experience, have 

7 you ever been involved in an investigation where 

8 there's a year-and-a-half lag fran when the 

9 investigation is conpleted until a notice of proposed 

10 civil penalty goes out? 

11 A. No, not in my experience. 

12 Q. was there any reason that you are aware of in 

13 tenns of further investigation that needed to take 

14 place in all of 2012? Is there any investigation 

15 activity related to this flight in 2012? 

16 A. I am -- I'm net certain of when I -- when the 

17 packet actually left this office, if it left in early 

18 2012, January 2012, or if it left later on in the year. 

19 So I'm net sure if there was any follow-on 

20 investigation going on in 2012. 

21 

22 

23 

(Reporter interruption for clarification.) 

THE WI'INESS: Or continuing. Sorry. 

Q, (BY MR. O'CONOOR) And at least do you recall 

24 specifically any investigation activities that occurred 

25 in the second half of 2012? 

- Page 107 

1 A. I don't recall any. 

2 Q. Did you have any conversations towards the end 

3 of 2012 -- and I don't need to know the substance of 

4 it, but were you involved in any discussions about this 

5 incident in the second half of 2012? 

A. The only discussions that I was privy to was, 

7 we asked our regional office, Have you heard anything 

8 about the case? If it was continuing or net. 

9 Q. What's the regional office? 

10 

11 

12 

13 

A. ANM-240, our technical structure branch. 

Q. somehow the file had gotten up their way? 

A. Correct. 

Q. Do you have an estimate as to when you were 

14 probably done with your assignment to investigate this 

15 matter? 

16 A. I believe -- and I think this was early, so in 

17 January of 2012, if I'm remembering correctly, because 

18 it was -- I believe I was done with it before I went on 

19 a long IDY to Oklahoma City. And I believe this was 

20 one of the items I rrade sure was done before I left for 

21 two rronths to Oklahoma City. 

22 Q. When did you do the TDY? 

23 

24 

25 

A. I did it mid-February through March. 

Q. 2012? 

A. 2012, yes. 

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1 Q. But far as whether --you can't tell me 

2 whether it might have been -- your portion of the 

3 investigation could have been conpleted in 2011? 

4 A. I believe my investigation part was conpleted 

5 in 2011. Whether or net there were typos that were 

6 fixed in 2012 -- but I'm alrrost positive it was shipped 

7 out January of 2012, because I was leaving. 

8 Q. And that would have been all the write-up 

9 and --

10 A. It would have been all --

11 Q. -- and gathering the lOPs and all of that 

12 would have been before you went to Oklahoma City? 

13 A. Correct. It would have been everything that 

14 you have. 

15 Q. What happens once the Section B is done and 

16 you've gathered all of your items of proof together 

17 with Section B, what happens next with the package? 

18 A. We follow= office procedure, which is once 

19 the sections are conpleted and you have a full 

20 start-to-finish report, including all of the items of 

21 proof, that gets circulated, basically, for signatures, 

22 and it is a QC to make sure that we're providing 

23 ANM-240, who then will take that and do whatever they 

24 need do and speak with counsel, to rrake sure we have 

25 all of that checklist and things done, conpleted, so 

Page 109 

1 we're not giving the next office an inconplete packet. 

2 Q. Okay. And is this checklist what's also known 

3 as Section A? 

4 

5 

6 

7 

8 

9 

A. I believe so. 

Q. Okay. 

MR. O'alNNOR: Let's rrark this as A. 

(Deposition Exhibit A was rrarked 

for identification.) 

Q. (BY MR. O'CONOOR) Take a look at what we've 

10 marked as Exhibit A, and let Ire know if you've seen 

11 this document before. 

12 

13 

14 

A. I have. 

Q. And what is Exhibit A? 

A. This is -- it is a checklist that we require 

15 for when we conplete an enforcement case, or at least 

16 conplete all of the inforrration. We run through this 

17 to rrake sure that basically we haven't provided an 

18 inconplete packet for the next set of folks that are 

19 going to be looking at this. 

20 Q. And Exhibit A, it bears the same EIR m.unber, 

21 2011NM020013, as the investigation into Flight 86; 

22 correct? 

23 

24 

25 

A. 'That is correct. 

Q. And did you fill out this checklist? 

A. No, I did not. 
JUSTIN MEISBERGER; August 01,2013 110 .. 113 

PagellO Pagell2 

1 

2 

Q. Who filled it out? 

A. Joel Wade. 

3 Q. The reporting ASI, and that's listed as you; 

4 correct? 

5 A. That is correct. 

6 Q. And the reviewer is Mr. Wade; is that correct? 

7 A. That is true. _ 

8 Q. Specifically with respect to the cc:mnents on 

9 the third page --

10 MR. SPITZER: I'm going to object to 

11 this. I don't know where this document cawe from, but 

12 this is not something that sJ.:ould have been supplied. 

13 Did this come from our release? 

14 MR. O'CONNOR: Yes. This is something 

15 that's in my file. 

16 MR. SPITZER: This should not have left 

17 this office. This is protected. Any discussion of 

18 this is deliberative. It is protected. 

19 Q. (BY MR. O'CONOOR) So with respect to the 

20 ccmnent on Section A, that there is no conclusive 

21 evidence to support the alleged violation --

22 MR. SPITZER: I'm going to object to any 

23 discussion of things that are on here. This shouldn't 

24 have been supplied. We're maintaining this is 

25 privileged. 

- Page 1.11 

1 MR. O'CONNOR: I can't ask him --

2 Q. (BY MR. O'CONOOR) Did you write that ccmment 

3 in Section A? 

4 MR. SPITZER: Again, that's 

5 deliberative, who wrote it. That's all part of the 

6 internal procedures. This should never have been 

7 released. 

MR. O'CONNOR: Well, it has been. 

9 MR. SPITZER: Well, we're continuing 

10 to -- we're continuing to maintain that this is 

11 privileged under deliberative process. So why it was 

12 released erroneously is beyond !T'e, but it shouldn't 

13 have been. And we're going to continue to maintain 

14 that anything that's asked about who filled this out or 

15 what it is -- obviously, you have it, but questions 

16 about it, they are all privileged. This should never 

17 have been released. 

18 

19 identify --

20 

21 

MR. 0' CONNOR: Can I ask him to 

MR. SPITZER: No. 

MR. O'CONNOR: This is going to be a 

1 issue in rrotions. It shouldn't have been released, and 

2 any discussion about it is privileged. I'm going to 

3 instruct the witness not to answer anything about this 

4 docwrent. 

5 MR. O'CONNOR: Can we at least identify 

6 the author of the ccmrents? 

7 

8 

9 

MR. SPITZER: No. That's privileged. 

MR. O'CONOOR: How? 

MR. SPITZER: It is privileged as 

10 deliberative process. What's written in here is 

11 written in for internal review. I mean there's -- who 

12 wrote it is part of the deliberative process of this 

13 agency. So it is privileged, and we're not going --

14 I'm going to object to any questions about it. 

15 MR. O'CONNOR: Well, I think -- you 

16 know, we have a waiver issue, so we need to understand 

17 who drafted this as part of that. 

18 MR. SPITZER: We ' ll deal with the waiver 

19 issue with a rrotion. But this is not the questions and 

20 I'm going to instruct the witness not to answer any of 

21 the questions you ask about this. 

22 Q. (BY MR. O'CONNOR) Okay. Well, just for the 

23 record, I had some questions for you, Mr. Meisberger, 

24 about the canment in Section A that there is no 

25 conclusive evidence to support the alleged violation. 

Page 113 

1 Your counsel has instructed you that you are not to 

2 answer any of my questions about that cooment, 

3 including who the author of that ccmnent is. And I 

4 take it that you are going to follow your counsel' s 

5 instruction and not answer any questions about that? 

6 A. That is correct. 

7 Q. Same question with respect to the ccmnents on 

8 Section B that Witness Elgee' s credibility is in 

9 question. Your counsel has advised and instructed you 

10 not to answer any questions regarding ccmnents 

11 regarding Mr. Elgee's credibility in this case, 

12 including who is the author of that statement. Are you 

13 going to follow that instruction and not answer any of 

14 my questions regarding Mr. Elgee's credibility or who 

15 authored that statement? 

16 

17 

A. That is correct. 

Q. Okay. And the last part, I don' t think I need 

18 to ask you about, because you •ve already confirmed it 

19 for me. But "Mr. Elgee acted contrary to logic and 

20 sacrificed his believability by not notifying the 

21 flight crew prior to takeoff." Your counsel has 

22 motion for sure. So we need to figure out who prepared 22 advised and instructed you not answer any questions 

23 this so we can determine whether the privilege applies 23 regarding that ccmment, including the author of that 

24 and when. There's clearly a waiver issue here. So... 24 statement. And I take it that you are going to follow 

25 MR. SPITZER: We'll deal with the waiver 25 that advice and not provide any responses to any 

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JUSTIN MEISBERGER; August 01, 2013 

Page 114 

1 questions I might have about that ccmment; is that 

2 correct? 

3 

4 

5 

A. That is correct . 

Q. That's a long question. 

MR. 0 ' CXJNNOR: Okay. I need a 

6 five-minute break, and then we'll ccxre back and wrap it 

7 up. 

8 THE WITNESS : Okay. 

(Recess taken. ) 

10 MR. O'CXJNNOR: Mr. Meisberger, I don't 

11 have any rrore questions for you at this tirre. We've 

12 had a discussion off the record that we are going to 

13 continue your deposition until we can seek some 

14 guidance from the court on the privilege issues that 

15 have been raised today. 

16 So what I have agreed with Mr. Spitzer -- you 

17 can confirm or make any rrodifications -- is that we 

18 will very quickly get scxrething to the court on two 

19 issues: 

20 One, compelling responses to questions, 

21 perhaps scxre documents related to privilege and waivers 

22 that have arisen today in your deposition. 

23 And two, in order to allow time for that being 

24 resolved prior to the hearing, we're going to make a 

25 request to continue the hearing for some time to allow 

Page 115 1 those issues to get sorted out. 

Is that a fair statement --

MR. SPITZER: Yes. 

MR. O'CONNOR: -- of what we're going to 

5 be doing here? 

What that means is, you are dor:e for now. If 

7 there is some relief provided to Alaska on some of 

8 these issues, we may be reopening your deposition. 

9 What that also means, Mr. Spitzer, we are 

10 going to put off Mr. Wade's deposition until such time 

11 as these issues can be resolved, because they are 

12 likely to come up in his deposition, just as they did 

13 in Mr. Meisberger's deposition. So I assume you are 

114 . .117 

Page 116 1 CORRECTION & SIGNATURE PAGE 

2 REo In the Matter of Alaska Airlines; 

U.S. DOT, OFFICE OF HEARINGS; 2011NM020013 

JUSTIN MEISBERGER; TAKEN AUGUST 1, 2013 

Reported by: SALLY J. HANDS, CCR 2191 

I, JUSTIN MEISBERGER, have read the within 

transcript taken AUGUST 1, 2013, and the same is true 

6 and accurate except for any changes and/or corrections, 

if any, as follows: 

7 PAGE LINE 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

CORRECTION REASON 

21 Signed at. _______ _ Washington 

22 

23 

24 

25 

on this date: 

JUSTIN MEISBERGER 

Page 117 REPORTER 1 S CERTIFICATE 

3 I, SALLY J. HANDS, the undersigned Certified Court 

4 Reporter, pursuant to RCW 5.28.010 authorized to adii\inister 

5 oaths and affirmations in and for the State of Washington, do 

6 hereby certify that the sworn testimony and/or proceedings, a 

7 transcript of which is attached, was given before me at the 

S time and place stated therein; that any and/or all witness(es) 

9 were duly sworn to testify to the truth; that the sworn 

10 testimony and/or proceedings were by me stenographically 

11 recorded and transcribed under my supervision, to the best of 

12 my ability; that the foregoing transcript contains a full, 

13 true, and accurate record of all the sworn testimony and/or 

14 proceedings given and occurring at the time and place stated 

14 agreeable to postponing that deposition until we have a 15 in the transcript; that a review of which was requested; that 

15 ruling. 16 I am in no way related to any party to the matter, nor to any 

16 MR. SPITZER: Of course17 MR. O'CONNOR: That's all. 

18 (Deposition adjourned at 1:16 p.m.) 

19 (Signature reserved.) 

20 

21 

22 

23 

24 

25 

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17 counsel, nor do I have any financial interest in the event of 

18 the cause. 

19 WITNESS MY HAND AND DIGITAL SIGNATURE this 5th day of 

20 August, 2013 

21 

22 

23 

24 SALLY J. HANDS 

Washington State Certified Court Reporter, CCR 2191 

25 shands®yomreporting. com 
EXHIBITD 
. Revision 0 AVS 

Quality 'Management System 

QPM# 

AFS ANM-200~01 0 F1 2 

Tifle: AFS ANM-200·010 F1 EIR REVIEW CHECKLIST Effective Date: October .24, .2008 Page 1 of 3 

If a problem is identified in any area, enter a comment in the corresponding comment block on 

page 3, identifying the checklist question number in the text of the comment. 1 EIR Number: - 2011 NM020013 Reporting AS I: Meisberger I 

Respondent's Name: .Alaska Airlines Reviewer's Name: Wade I R~eview D~te: March 23, 2011 I 

Yes No 

Administrative EIR's, require Checklist Section A only. Is this an Administrative EIR? D [gj 

[ ;, '1 • .., 

_.. .\.n -~ 

.,:;.'-\#' ~;,~,., .. ...... J ;.;.;.· 

~ - .• :z ...... ~~':Ji"i.-,-'!TI.-,.,,·;:;· ':;,- --- -·- .......... _,., .., ~i~ . ..J~ ~ ;;;,--~''in:,, ,.,..w ..• -- .• o #iJ, t~"np. .... -, 

~· J:'''"ft··~·~J:i'' .... -·. ~-,, ,_.l ' ~"' ... \:-~ 

-1_-- nfapplicable, is Related EIR number identified? -· ~~--~-N/A--[j~~-~--0-

2. Blocks 1-7 complete? (Address shol11d match the information from airman/aircraft rZl D. 

registry, if applicable.) 

3. Blocks 8-12 (aircraft) complete? (If an aircraft was involved then these blocks should ~ D 

be completed.) 1- . . 

4. Blocks 13-14, Date and Time consistent with ''local" tim~? ~ 0 ! 

4a. Based on the Date Occurred (13) does the case fall within stale comEiaint deadlines? ~ LJ 

5. Is block 15, "Date Known to (anyone) in FAA", accurate? !Zl Q_ 

6. Block 18; are the ''Regulations Believed Violated" cited? .IZJ .D 

6a. Does each regulation cited, correlate with the apparent violation? ·N u 

6b. Is each regulation cited, an enforceable tegulat:ion? ,lZJID 

6c. Have all ap_Qiicable regulations been cited? rzJ J[ ] 

7. Blocks ( 19~23), are the two-digit codes selected for "Type", "Sub~type", "Category''., .~ D 

usource" and "Accident .Associated" consistent With Order 2150.38 (Appendix G)? 

8 Is the Investigating Field Office Recommendation for: ' 

Sa. Block (25) 'Type Action", appropriate? (Admin, CP, Suspension, No Action} 0 [gj_ 

Bb. Block (26) "Sanction··, appropriate? (blank if "no action"; warning notice or letter of D ~Z~· 

correction if .Admin action, or if CP or certificat~e action specify dollars or days 

8c. Is the reporting lnsQector's name entered? [gj 

.9. Does the "Date" block (27) reflect date signed by manager? [gj -B10. Does the "lnvestigat,ing Office" block (28) reflect the office identifier? l[gJ D 

11. Is the office manager's {or their designee's) name and signature entered? ~ D 

12. Does this EIR meet the conditions of a Significant Enforcement Case? 0 l2?J 

-~ lJ i::i- 12a. If yes, was this case assessed in accordance with .AFS ANM-200-003? N/A 0 J..::~--~~~,(~·~,_:_~-t~: ·~-~~, :; .-~~' -~~:;· --~-\-:_r -:,',~ ~~- : .., -,,_; :>· ,~·, .7 ~·:-: ... ;_.;>;" ,;,t ~~~.-~ L,~,·:~_' ~-.;.,,-~1_.""·~~;~:-H ~ :___,, 'j ,_ r I -

1. --Does Section B contain a statement of the origin or basis for the investigation? ~ [ J 

2. Does Section B contain a concise statement of the facts and regulatory and statutory [gJ 0 

violations to include a discussion of how fihe facts establish the violation(s)? 

3. Is the Statement of Case ahd Factors Affecting Sanction format presented fZI D 

chronological!):':, addressing each element of the cited r'egulations? 

3a. Is the Statement of Case and Factors Affecting Sanction format presented in an IZl D 

orderly and logical manner to address; who, when, where, why and how? 

3. Does each reference for an Item of Proof (lOP) appear directly after the statement it ~ D 

supports? 

4. Are each of the cited regulations addressed in Section B? '[gj 0 

TJNrONTROT .I.F.O rOPY Wl-lF.N OOWNl.OADF.D 
.,. AVS QPM# Revision 

Quality Management System AFS ANM-200-010 F1 2 

· Title: 

5. 

5a. 

Sb. 

:5c. 

5d. 

AFS ANM-200-01 0 F1 EIR REVIEW CHECKLIST Effective Date: October 24, 2008 Page 2 of 3 

Are each of the foB owing Factors Affecting Sanction analyzed with regard to I Mrr AGG; 1 e-5r:·t~a 1 

their relevance. and!or applica~ility? (ref 2150.38 _Ghpt 7, Pa-ra 4 and Chpt 8, Para 3b) ! _ ·-- _ ·,_-~~~~ j 

Nature of the VIOlatiOn. (Operatronal, Non-Operational, Careless, Reckless, etc.) I2Sl D 1 or ori 

Whether the violation was inadvertent and not deliberate? fZJ D LOJ_J _OJJ, 

Certificate holder's level of experience? , ]- ~ LDJJ:lJ 

Attitude of the violator? D l:8l OJ Ow 

1---S_e_. -+-D_e~uwee of hazard? :·How safety was affected" . D fEl--UJ I ,0. 

5f. Act1on(s} taken by vtolator, employer or other authonty? [EI I D , 0 0 ; 

5g. Use of the certificate? D fZ] 1 D [ l ' 

5h. 1 Violation historyl_jSummary) ~ I 0 0 ! 0 _[~-_ 

~:: ~~~\~~~~~:,: ~~t:~~~ed by legal) I D [j I ~ff3 5k. Consistency of sanction? (RFSD) . 0 0 [g) 0 

51. Whether the violation was reported voluntar.ily? ~ :0 !Zi 0 

Sm. Corrective Action? ~ I D ~ D 

6. Does Section 8 include the following under Factors Affecting Sanction? MIT :AGGY;;s No . . ~-j-,=--,.--;-;.= -- ·- . ·~ 

6a. 

6b. 

6c. 

6d. 

6d(1 ). 

'6d(2). 

Eyaluation of the reliability of the evidence (lOP's)? .D D 1 (g] D Discus~ion of any conflicti~g ·evidence? . . ~ . 0 0 ~.Q 

Analysis of the apparent VIOlator's explanation, 1f prov1ded? ~ 0 I D 

-Discussion of any other mitigating, extenuating or aggravating factors? ~ 0 !01 0 

Consideration of aggravating factors for Unruly Passengers? N/A [EJ '- O_,_TI 0-=--

{ref 2150.38 chpt 7, paragraph 12 (b) (1-7} 

Consideration of mitigating factors for Unruly Passengers? 

(ref2150.3B chpt 7,_paragraph 12 (c) 

NIA ~ 0 D DO 

6e. • Opinions, if applicable? 0 D {gj D 

6f. A stated conclusion? . - 0 D [ J a 

6g. A recommendation about sanction? 0 0 IZ!I.D 

6h. Justification for -enforcement action and sanction recommendations? i D D cgj D 

7. Enforcement Decision Tool (EDT) Yes· No , ~7~a-.-+~ls-t~h-e~E~D~T~in-c~lu_d_e_d~in~S-e-ct~io-n~8~?~. -------------------------------------;~1]~ 

7b. Is the EDT Acceptable? ~ 

r-~ 

8. 1 Regional Program Office Sanction Recommendation as applicable? _D • jgj 

1. 

2. 

3. 

4. 

5. 

, (C) EJR SecHon C, Items o! ~--·---c --------------~Ye=is,· r=N=;-c-jl 

Is each lOP clearly identified? cgj D 

Are the lOP's in a logical sequence? I [ZJ :0 

If photos are included are they ex~lained? [29 :o 

If documents are they legible I understandable I relevant? ~ :0 

Is there at least one lOP to support every element of each regulation cited in sections A IZI U 

and 8? 

6. I Is each "Fact" in Section B supported by .an lOP? [ZJ l J 

7. 1 Does each "Fact" repr.esent the applicable lOP at face value (i.e. accept the lOP as true 

I regardless of our own opinions)? 

8. Are all appropriate lOP's included in the Section 8 presentation of Facts? 

i 

T INCONTROT .T .F.n r.OPY WHF.N nOWNl ,OA nF.n 

)ZJ Dl 

I j 
·o • 

AVS QPM# Revision 

,Quality Management System AFS ANM-200-010 F1 2 

Title: AFS ANM-200-010 F1 EIR REVIEW CHECKLIST Effective Date: October .24, .2008 Page 3 of3 

Item Comments Section "A" 

8a There is no conclusive evidence to support the alleged violation. 

8b See 8a 

' 

Item Comments Section "B" ! 

6a Witness Elgee credibility is in question. 

6a Witness Elgae acted contrary to logic and sacrificed believability by not notify,ing flight 

crew prior to takeoff. 

7b It is this reviewer's opinion that blocks 7 & 8 ,in Step Two of the EDP are unchecked due 

to reasons external and irrelevant to this investigation . ... 

I 

I tern Ccrr.rnent5 Seoi01; · c · ---

I I I Item S0'11!T.ents · Er.i 01 cerr~~nt Oar.; ;:.;1o~ Tool 

TINCY>NTROT J ;rm r'OPY WHF.N DOWNY .OADF.D 
EXHIBITE 
U.S. Deportment 

of Transportation 

,federal Aviation 

Administration 

December 31, 2012 

Northwest Mountain Region 

Office of Regional Counsel 

Colorado, Idaho, Montana, 

Oregon, Utah, Washington, 

Wyoming 

1601 Lind Avenue S.W. 

Renton, Washington 98057 

Tel: (425) 227-1417 

Fax: (425) 227-1007 

robert.spitzer@faa.gov 

FAA Case No. 2011NM020013 

VIA EXPRESS 1v1AIL, FIRST CLASS and CERTIFIED MAIL- RETURN RECEIPT 

REQUESTED 

Mr. Bradley Tilden, President 

Alaska Airlines, Inc. 

P.O. Box 68900 

Seattle, WA 98168 

NOTICE OF PROPOSED CIVIL PENALTY 

A report of investigation indicates that: 

Atas1c:a Airlines 

RECEIVED 

!JAN 0 3 Z012 

-pres\dent's omca 

S£AYZ 

1. Alaska Airlines, Inc. (Alaska) is now and was at all times relevant herein the 

holder of Air Carrier Certificate No. ASAA802A. 

2. The above-described certificate was issued pursuant to 14 Code of Federal 

Regulations (C.P.R.) Part ] 19, and permits Alaska to operate aircraft 

pursuant to 14 C . .F.R. jJart 121. 

3. At all times relevant herein Paragraph D085 of Alaska's Operations 

Specifications (OpSpecs) authorized Alaska to use N323AS, a Boeing 737~ 

990 civil aircraft (the aircraft), in the conduct of Alaska's Pmi 12 'I operations. 

4. At all times relevant herein, Paragraph A023 of Alaska's OpSpecs authorized 

the use of Alaska's Flight Operations Manual Section 6.100 Bulletin 10-25. 

5. At all times relevant herein, the above-described Flight operations Manual 

Section 6. 100 Bulletin 1 0~ 25 prohibited Alaska aircraft from taking off when 

frost was present on an aircraft's upper wing surface. 

6. On or about January 7, 2011;-Alaska operated the aircraft as Flight 86 (a Pari 

121 flight) between Anchorage, Alaska and Seattle, Washington. 

7. The above-described flight departed Anchorage, Alaska despite the fact that 

frost was adhering to the aircraffs upper wing surfaces. 

8. By reason of the above, Alaska took off with an aircraft when frost was 

adhering to the wings of the aixcraft. 
Alaska Airlines- 2011NM020013 

December 31, 2012 

Page 2 

By reason of the foregoing circumstances, it appears that Alaska violated the following 

sections of the Federal Aviation Regulations (14 C.P.R.): 

a. Section 119.5(1), when it operated the aircraft under Part 121 when it failed to 

comply with its Operations Specifications by taking off the aircraft with frost 

on the upper wing surface, 

b. Section 121.629(b), when it took offwith an aircraft with frost on the upper 

wing surface. 

Under 49 United States Code (U.S.C.) Sections 46301(a) and (d), with modifications set 

forth at 14 C.F.R. Part 13, Subprui H, Alaska is subject to a civil penalty not to exceed 

$27,500 for each violation noted. We propose to assess a civil penalty in the amount of 

$16,000. 

Enclosed is information concerning options in responding to this Notice. The options include 

pruiicipating in ail informal. conference with a Federal Aviation Administration (FAA) 

Artomey ru1d submission ofinfonnation to the FAA for consideration. You must submit, in 

·writing, your choice of the alternatives explained on the enclosed infonnation form, on or 

before thirty (30) days after you receive this Notice. 

If Alaska fails to submit its choice within that titne, it will have no further right to participate 

in the two (2) informal procedmes listed above. 

If you have any questions regru·ding this Notice, please contact FAA Attorney Robert Spitzer 

at telephone number (425) 227-1417. 

DOUGLAS R. ANDERSON 

Acting Regional Counsel 

By: 

Enclosures: Information Sheet/Reply Form/FAR 13.16 and Subpart G of Part 13 

RS/tek 

cc: Kyle Levine 

Alaska Airlines 

19300 International Blvd. 

Seattle, WA 98188 
EXHIBITF 
07/25/2013 09:57 4252271007 ANiv17 

UNITED STATES OF AMERlCA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON~ 0.9.. 

Michael J. Huerta, Administrator · 

Federal Aviation Administration; 

PAGE 02/05 

I CALENDARED 

I MORRISON & FOERSTER 

I DOCKET DEPT. 

I 

I July 30, 2013 

I 

1 For Date(s): -=-,.....---:::--::-=~--:-- ! Brian S. Mitchell 

· Complainant~ FAACaseNwnbe.r: 2011NM020013 

FDMS No. FAAM2013-0287 

Alaska Airlines; 

Respondent. 

vs. 

Judge Richard Goodwin 

ADMINISTRATOR'S RESPONSE TO BESPO~ENT'S FIRST SET OF 

INTERROGATORIES !ND REQUEST FOR PRODUCTION OF DOCYMENTS 

The Administrator, through his representatives~ hereby submits this response to the Respondent's 

Hrst Set of Interrogatories and Request for Production of Documents. The Administrator · 

reserves the right to amend these responses. Additionally, the Administrator reserves the right to 

call any Vlritness or use any document which the Respondent ,uses in his presentation of the case 

at trial. 

'Responses to Reqnests·for Interrogatories 

·INTERROGATORY NO. t: Please identify each expert witness you might caJJ at the hearing, state 

in detail the opinions to which the expert might testify, and describe the grounds for each opinion .. 

RESPONSE: Th.e Administrator intends to call Thomas Bond the FAA's.ChjefScientific and 

Technical Advisor for Flight Environmental Icing, 800 Independence Ave., S.W. Washington. DC 

20591, 202-3 73-4.503~ as the Agency's expert on environmental aircraft icing. Thomas Bond will 

testify that from. his review of the photographs taken of the subject aircraft on the subject flight, that 

the aircraft had frost on j~ wings in flight, and that the frost which was present on tlle wings must 

have been formed on the ground~ prior to takeoff. Thomas Bond will additionally testify that the 

frost posed a danger to the aircraft. This opinion is based upon his knowledge and experience, as 

well as his review of the file~ including the photographs in the subject case. 

INTERROGATORY NO.2: Has any expert identified in response to Interrogatory No.1 pre\oiously 

served as a testifying expert for the Federal Aviation Adrci,nistration in another civil penalty action? 

Complainant's Rcsp(lt~Se to Respondent's first Set oflo.t.errogatorics and RC>I'IEP.T SPITZER. FAA A1"roR.NEY 

Request for Produotion of Document.:; 

Alll.llkaAirlinos- FDMS No. FAA·2013-028i TEL~ (42S) 227-1417; FAX: (425) 227-1007. 

Page 1 of4 
07/25/2013 09:57 4252271007 PAGE 03/05 

If so! please identify the person or entity against whom each action was initiated, identi.ty that 

person's or entity's attorney) br:ie.fly describe the nature and disposition of the action, and provide the 

case number. 

RESPONSE: A ·list of the expert~ s previous testimony will be forthcoming. 

INTERROGAIO.RY .liO. 3 Please pro"ide witness John Elgee1s current contact information, 

·including his home address. business address, e·mail address, and telephone numbers. 

RESPONSE: John Elgee,P.O. Box 306, Conway, WA 98238, 907·355-2263. 

INTERROGATORY NQ. 4: Has JohnElgee previously been a witness for the Federal Aviation 

Administration in another civil penalty actiOll? If so, please identify the person or. entity against 

whom each action 'vas initiated, identity that person's or entiiy1s atto.mey, briefly describe the nature 

and disposition of the actio11, and provide the case number. . · 

RESPONSE: A search of records revealed no FAA civil penalty actjons which used Mr. Jolm Elgee 

as a witness. 

INTERROGATORY NO. 5: Please identify all other persons who have any knowledge relating to 

the allegations in your complaint. For each such person) state the nature of his or her knowledge. 

RESPONSE: Objection, this request seeks information which is privileged as attorney-client 

oommunication, or attorney work-product. The objecti.on. nonwithstanding, all individuals w:ith · 

knowledge of the subject matter are identified in the releasable portions of the EIR previously 

released. · 

Respoo.stS to Requests for Production· ofD~cuments 

BEQUEST FOR PRQQUCTION NO. 1: Please produce the most recent resume or curriculum vitae 

and fee schedule for each expert who might testify at the hearing. 

RESPONSE: Will be provided. Thomas Bond is receiving no fee. for his testimony apart from his. 

FAA salary·. 

REQUEST FOR PRODUCTION NO. 2: If any expert who might testify at the he~ing has prepared 

a written report regarding this matter, please produce a copy. 

RESPONSE: See previously transmitted releasable portions of the Enforcement Investigative 

Report (EIR). 

Complalnan.t's RcspoD~!l to 'Respondent's First Set (l.fJnterrogatori..:s and 

Request for Prod.uction of Dm;umonts 

Alaska Airlines- F.DMS No. FAA~.20l3·0287 

Page 2 of4 

' ROBERT SPITz:e;R., FAA A.TTORNEY 

TEL: (425) 227·1417; FAX: (425) 227·!Ci07 
07/25/2013 09:57 4252271007 ANM7 PAGE 04/05 '1 

REQUEST FOR PRODUCTION NO. 3: Please produce all v.-itness statements, whetller written or 

recorded, that relate to the allegations ill the complaint. 

RESPO~SE: See previously transmitted releasable portions of the EIR 

REQUEST FOR :eRODUCTION NO. 4: Please produce all correspondence, including e-mails, any 

employee of the Federal Aviation Administration h~ sent to or received from John Elgec regarding· 

tlli.s action or the allegations in the complaint. 

RESPONSE: Objection, this request seeks attorney communication and or attorney work product. 

The objection nonwithstanding, please see previously transmitted EIR. 

REQUEST FOR PRODUCTION NO. 5: Please produce all other documents (including reports, 

photographs. video recordings, and diag:ram.s) that relate in. any way to the allegatio:ns in 1he 

complaint 

RESPONSE: See previously transmitted :releasable portions of the EIR. 

Respectfully submitted this 25th day of July 2013. 

DWIGHT WILLIAMS 

Regional Counsel 

By: 

Robert Spitzer 

Attorney 

Office of the Regional Counsel (AMN-7) 

Federal Aviation Administration 

1601 Lind Avenue, SW 

Renton. WA 98057 

(404) 227-1417 

(404) 227"1007 FAX 

E-mail Address: robert.spit1..er@faa.gov 

Complainant's Response to R~spondent's First Set of Interrogatories and 

Request for Production of Documents 

Alaska. Airlit~es- FDMS Nq. F'AA-2013-0287 

Pag~; 3 or4 

ROBERT SPITZER. FAA A '!'TORNEY 

Ta:(425) 227-1417: FAX: (425) 227-1007 
07/25/2013 09:57 4252271007 ANfv17 

. CER]JFICATE OX SERVIC~ 

I hereby certify that the foregoing Administrator's Response to Respondent's first request for 

Discovery has been served via Fax and First-Class Mail this date, to the following: 

Geoffrey M. Grindeland 

Mills, Mey~, Swartlin.g 

1000 Second Avenue, 30th Floor 

SeatUe, VVJ\ 98104-1064 · Fax: 206-267-6746 

Jeremy Ross 

Senior Attorney 

Alaska Airlines, Inc. 

P.O. Box 68900- SEAZL 

Seattle. WA 98168 

Fax: 206-392-5468 

Dated this 25th day of July, 2013. 

Terri Kf .. · Office of Regional Couo.sel (ANM~T) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton, WA 98057 

(425) 227-2160 

PAGE 05/05 

Complaint~.nt's Rcspoose to RcspOf.ldent's First Set of Interrogatories and 

Request for :Production "f Document~ 

ROBERt SI>TTZER., FAA ATTORNEY 

Alaska Airlioe~ ~ FDMS No. FAA-201:3·0287 

.Page 4 of4 

TEf .. : (425) 227-141 7; FAX; (425) 227-1007 
.·. 

07/25/2013 09:57 4252271007 ANrv17 

:FACSIMILE MESSAGE 

FEDERAL A 'VIA TJON ADMINISTRATION 

OFFICE OF REGIONAL COUNSEL 

ANM-7 

1601 LIND A VENUE S.W. 

RENTON, WASIDNGTON 98057 

PAGE 01/05 

The information contained in this .facsimile message is legally priv.ileged and confidential-· 

information and is intended only for the use of the individual named on this cover sheet. 

If the reader of this message is not the intended recipient, you are hereby notified that any 

use~ dissemination., distribution. or copy of this facsimile is strictly prohibited. If you 

have received this facsimile in error, please immediately notify us by telephone at 

425-227-2007. . 

DATE:. July 25, 2013 NO. PAGES: 5 including cover 

TO: Geo.ffrey Grindeland FROM: Robert Spitzer 

FAX NO.: 206-267-6746 FAX NO.: 425~227-1 007 

PHONE NO.: PHONE NO.: 425-227-1847 

RE: FAA Case No. EMAIL: robert.spitzer@faa. gov 

2011NJ\.f020013 

ADMINISTRATORS RESPONSE TO RESPONDENTS FIRST 

SET OF INTERROGATORIES AND REQUEST FOR 

PRODUCTION OF DOCUMENTS 
EXHIBIT G 

L 
1 

2 

3 

4 

5 

6 

7 

8 

Geoffrey M. Grindeland 

Caryn Geraghty Jorgensen 

Mills Meyers Swartling 

1000 2nd Avenue Suite 3000 

Seattle, WA 98104 

Tele: 206-812-7451 

Fax: 206-267-6746 

UNITED STATES OF AMERICA 

I CALENDARED 

I MORRISON & FOERSTER 

I DOCKET DEPT. 

I I July 30,2013 

1 For Date(s): 8-19-13 ! Brian S. Mitchell 

9 DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

10 WASHINGTON, D.C. 

11 In the Matter of: 

FAA Case No. 2011NM020013 

12 Alaska Airlines Inc. 

ALASKA AIRLINES, INC.'S SECOND 

13 INTERROGATORIES AND REQUESTS 

FOR PRODUCTION TO THE FEDERAL 

14 AVIATION ADMINISTRATION 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

Please respond within 30 days to the following interrogatories and requests 

for production in accordance with 14 C.F.R. Part 13, Subpart G. 

INSTRUCTIONS 

1. These discovery requests are continuing in nature, and you are 

requested to promptly supplement your responses if you learn of new or different 

information. 

2. If you are unable to answer any of these discovery requests fully and 

completely after exercising due diligence to obtain the information necessary to make 

a full and complete answer, so state and answer each such discovery request to the 

ALASKA AIRLINES, INC.'S SECOND INTERROGATORIES & 

REQUESTS FOR PRODUCTION TO THE FAA 

(No. 2011NM020013) - 1 

LAW OFFICES OF 

MILLS MEYERS SWARTLING 

1000 SECOND A VENUE, 30TH FLOOR 

SEATTLE,VVASfiTNGTON 98104-1064 

TELEPHONE (206) 382-1000 

FACSIMILE (206) 386-7343 
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fullest extent possible specifyi~g the extent of your knowledge and your inability to 

answer the remainder, and setting forth whatever information or knowledge you 

may have concerning the unanswered portions thereof and efforts you made to 

obtain the requested information. 

3. As used in these discovery requests, the words II and" and II or" shall not 

be interpreted to exclude any information otherwise within the scope of any 

discovery request. 

4. If you are withholding any information because of a claim of privilege 

or protection, please state the nature of the information withheld and identify the 

privilege claimed with sufficient..§pecificity to pern:Ut a full determination of whether 

the claim of privilege is valid. 

5. AT THE TIME OF THE HEARING, ALASKA AIRLINES WILL MOVE 

TO EXCLUDE THE TESTIMONY OF ANY PERSON NOT IDENTIFIED AND ANY 

EVIDENCE NOT DISCLOSED IN YOUR DISCOVERY RESPONSES. 

DEFINITIONS 

1. As used in these discovery requests, 11 document" means every kind of 

document and all types of electronically stored information-including writings, 

drawings, graphs, charts, photographs, sound recordings, images, and other data or 

data compilations-stored in any medium from which information can be obtained 

either directly or, if necessary, after translation into a reasonably usable form. 

2. In reference to a person, "identify" means to state the person's full 

name, last known address, and telephone number. 

ALASKA AIRLINES, INC.'S SECOND INTERROGATORIES & 

REQUESTS FOR PRODUCTION TO THE FAA 

(No. 2011NM020013) - 2 

LAW OFFICES OF 

MILLS MEYERS SWARTLING 

1000 SECOND A VENUE, 30TII FLooR 

SEATTLE, WASHThiGTON 98104-1064 

TELEPHONE (206) 382-1000 

FACSIMILE (206) 386-7343 
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3. The "subject aircraft" means the Boeing 737-900/990 aircraft bearing 

registration number N323AS and operating as Alaska Airlines Flight 86 on January 7, 

2011 that is the subject of this civil penalty proceeding. 

INTERROGATORIES 

INTERROGATORY NO.6: 

Please describe how the pilots of the subject aircraft might reasonably have 

been expected to determine during taxi that frost had adhered to or was adhering to 

the wings. 

ANSWER: 

INTERROGATORY NO.7: 

Please identify what, if any, changes the FAA intends to make to 14 C.F.R. § 

121.629 in response to this matter and describe such changes. 

ANSWER: 

INTERROGATORY NO. 8: 

Do you contend that the amount of frost, if any, adhering to the wing of the 

subject aircraft impacted the safety of the flight? If so, please describe specifically 

and in detail how safety was impacted and identify all experts and all documents 

supporting this contention. 

ANSWER: 

ALASKA AIRLINES, INC.'S SECOND INTERROGATORIES & 

REQUESTS FOR PRODUCTION TO THE FAA 

(No. 2011NM020013) - 3 

LAW OFFICES OF 

MILLS MEYERS SWARTLING 

1000 SECOND A VENUE, 301H FLOOR 

SEATTLE, WASHINGTON 98104-1064 

TELEPHONE {206) 382-1000 

FACSIMILE (206) 386-7343 
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INTERROGATORY NO.9: 

Please identify all experts who reviewed or analyzed the photographs taken 

by John Elgee and, for each such expert, (a) state whether he or she is an employee of 

the FAA, (b) state his or her conclusions regarding whether the photographs depict 

frost, and (c) state his or conclusions regarding when any frost depicted might have 

adhered to the wing. 

ANSWER: 

INTERROGATORY NO. 10: 

Please identify all aggravating or mitigating circumstances identified by any 

FAA investigator, inspector, or reviewer involved in this matter, and state whether 

the FAA adopted each such aggravating or mitigating circumstance. 

ANSWER: 

INTERROGATORY NO. 11: 

Did the FAA speak to any other passengers traveling on the subject flight 

about the alleged frost on the wings of the subject aircraft or about the subject flight 

generally? If so, please identify all such passengers and describe their knowledge. 

ANSWER: 

INTERROGATORY NO. 12: 

Please identify any other individuals who, to the FAA's knowledge, observed 

ALASKA AIRLINES, INC.'S SECOND INTERROGATORIES & 

REQUESTS FOR PRODUCTION TO THE FAA 

(No. 2011NM020013) - 4 

LAW OFFICES OF 

MILLS MEYERS SWARTLING 

1000 SECOND A VENUE, 301H FLOOR 

SEATILE, WASHINGTON 98104-1064 

TELEPHONE (206) 382-1000 

FACSIMILE (206) 386-7343 
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. frost on the subject aircraft. 

ANSWER: 

REQUESTS FOR PRODUCTION 

REQUEST FOR PRODUCTION NO. 6: 

Please produce all documents in your possession or in the files of FAA 

Investigator Justin Meisberger regarding this action or the allegations in the 

complaint, including but not limited to all documents referencing John Elgee, Joel 

Wade, Walt Bala, the subject aircraft, or the FAA's Notice of Civil Penalty 

2011NM020013. 

RESPONSE: 

REQUEST FOR PRODUCTION NO. 7: 

Please produce all documents in your possession or in the files of FAA 

Principal Operations Inspector Joel Wade regarding this action or the allegations in 

the complaint, including but not limited to all documents referencing John Elgee, 

Justin Meisberger, Walt Bala, the subject aircraft, or the FAA's Notice of Civil Penalty 

2011NM020013. 

RESPONSE: 

ALASKA AIRLINES, INC.'S SECOND INTERROGATORIES & 

REQUESTS FOR PRODUCTION TO THE FAA 

(No. 2011NM020013) - 5 

LAW OFFICES OF 

MILLS MEYERS SWARTLING 

1000 SECOND A VENUE, 30m FLOOR 

SEATTLE, WASHINGTON 98104-1064 

TELEPHONE (206) 382-1000 

FACSIMILE (206) 386-7343 
l 

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REQUEST FOR PRODUCTION NO.8: 

Please produce all documents in your possession or in the files of Aviation 

Safety Inspector Walt Bala regarding this action or the allegations in the complaint, 

including but not limited to all documents referencing John Elgee, Justin Meisberger, 

Joel Wade, the subject aircraft, or the FAA's Notice of Civil Penalty 2011NM020013. 

RESPONSE: 

REQUEST FOR PRODUCTION NO.9: 

Please produce electronic/ digital copies of the photographs John Elgee took of 

the wing of the subject aircraft. In response to this request, please produce the 

highest resolution images available. 

RESPONSE: 

REQUEST FOR PRODUCTION NO. 10: 

Please produce all documents related to any FAA investigation in which John 

Elgee has served as a percipient witness. 

RESPONSE: 

ALASKA AIRLINES, INC.'S SECOND INTERROGATORIES & 

REQUESTS FOR PRODUCTION TO THE FAA 

(No. 2011NM020013) - 6 

LAW OFFICES OF 

MILLS MEYERS SWARTLING 

1000 SECOND A VENUE, 3()rn FLOOR 

SEATI1.E, WASHINGTON 98104-1064 

TELEPHONE (206) 382-1000 

FACSIMILE (206) 386-7343 
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REQUEST FOR PRODUCTION NO. 11: 

Please produce John Elgee's FAA personnel file, including any record of 

misconduct, reprimand, or other disciplinary measures. 

RESPONSE: 

REQUEST FOR PRODUCTION NO. 12: 

Please produce the files of any expert that reviewed or analyzed the 

photographs John Elgee took of the wing of the subject aircraft, including any reports 

generated as a result of such review or analysis. 

RESPONSE: 

DATED: July 18, 2013. 

MILLS MEYERS SW ARTLING 

Attorneys for Alaska Airlines, Inc. 

By: l:ft1!tic4 I 

WSBA No. 35798 

Caryn Geraghty Jorgensen 

WSBA No. 27514 

ALASKA AIRLINES, INC.'S SECOND INTERROGATORIES & LAW OFFICES OF 

REQUESTS FOR PRODUCTION TO THE FAA . 

(No. 2011NM020013)- 7 

MILLS MEYERS SWARTIING 

1000 SECOND A VENUE, 30TH FLOOR 

SEAITLE, WASHINGTON 98104-1064 

TELEPHONE (206) 382-1000 

FACSIMILE (206) 386-7343 
1 

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CERTIFICATE OF SERVICE 

The undersigned certifies under penalty of perjury under the laws of the 

United States that on this date I caused to be served in the manner indicated a copy 

of the within and foregoing document upon the following persons: 

Robert Spitzer 

FAA Office of Regional Counsel 

1601 Lind Ave. SW 

Renton, W A 98057 

DATED July 18,2013. 

D Via first class mail, postage prepaid 

D Via facsimile to 425-227-1007 

12( Via Legal Messengers 

rlf' Via E-mail 

Christine Stanley 

ALASKA AIRLINES, INC.'S SECOND INTERROGATORIES & 

REQUESTS FOR PRODUCTION TO THE FAA 

LAW OFFICES OF 

MILLS MEYERS SWARTLING 

1000 SECOND A VENUE, 30Tii FLOOR 

SEAITLE, WASHINGTON 98104-1064 

TELEPHONE (206) 382-1000 

FACSIMILE (206) 386-7343 

(No. 2011NM020013) - 8