In the matter of 

BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

RECEIVFD 

DEC 0 9 

HEARING DOCKET 

Docket No. FAA-2013-0291 

FAA Case No. 2011S0290032 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES 

Respondent 

Administrative Law Judge 

J.E. Sullivan 

MOTION FOR LEAVE TO FILE AND 

REPLY TO COMPLAINANT'S RESPONSE TO 

RESPONDENT'S MOTION FOR SANCTIONS 

Respondent, Airborne Maintenance and Engineering Services, Inc. hereby seeks 

leave to the extent necessary to file this short reply to Complainant's Response to 

Respondent's Motion for Sanctions. The sanction motion was filed after the 

Complainant failed to observe Your Honor's established deadline for the submission of 

expert reports under the September 30, 2014litigation schedule order. This reply is brief, 

will ensure the record is complete prior to entry of any order based on the motion and 

will address Complainant's obvious distortion of the record and the arguments presented 

by Complainant in its Response. 

First, and most importantly, Complainant concedes that the deadline for exchange 

of initial expert disclosures was November 19, 2014 and that the FAA's disclosure was 

not served on counsel for Respondent until December 1, 2014. FAA Response, page 1. 

Hence all the elements for the imposition of sanctions under §13.217(f) regarding the 

imposition of sanctions for failure to comply with a joint schedule are present. Counsel 

for Complainant does state that an obviously difficult personal matter took him out of the 
office the day before the disclosures were due to be exchanged. Respondent has 

absolutely no reason to question and would not question the explanation given for 

counsel's absence from the office even though it was only first offered as an explanation 

for the late service on December 5th when the FAA filed its Response to the Motion for 

Sanctions1 However, knowing that Complainant's counsel had a deadline of November 

19th to file the disclosure statement, and putting aside the apparent fact that the document 

had not been drafted even one day prior to the deadline, it would not have presented any 

significant burden on FAA counsel to have either contacted Respondent's counsel on 

November 18th to request additional time or advised another attorney in the Southern 

Region to do so. Alternatively, other counsel in the Regional Counsel's office could have 

been tasked to seek leave from Your Honor's scheduling order to serve the expert 

disclosure out of time based on the unavailability of Complainant's counsel. No such 

steps were taken even though on November 20, 2014 another attorney in the Regional 

Counsel's office did formally answer Respondent's motion dated November 7, 2014 for 

suspension of the procedural dates due to the inability of Complainant to advise when an 

1 Exhibit F to the Complainant's Response shows that by e-mail dated December I, 2014 

Complainant's counsel advised Respondent's counsel that he had been out of the office 

for an extended period of time. However, even knowing the expert disclosure statement 

would be served later in the day, Complainant made no mention of the fact or made any 

attempt to address the issue with Respondent. Complainant was perhaps hoping the 

lateness of the expert disclosure statement would go unnoticed or not objected to, but a 

litigation strategy based on hope is not a sound one. The subject of the December I st email was the scheduling of the Lipinski deposition and why Complainant had not 

responded to Respondent's prior request to schedule the deposition which was sent six 

days earlier. Complainant offered not even a hint that a knowingly delayed disclosure 

statement was due to be served later that day. 

- 2-
inspector to be deposed would be available2 Obviously other attorneys in the Southern 

Region Office of Regional Counsel had some familiarity with the enforcement action and 

the file, and could have made contact with Respondent's counsel to explain the situation 

and seek a solution. No substantive knowledge of the case would have been necessary to 

make such a request to Respondent's counsel or to file a motion to seek leave for the late 

service of the FAA's initial expert disclosure. 

Complainant makes much of the fact that Respondent's counsel did not first 

consult with Complainant about the filing of the sanctions motion. First of all, as stated 

in the motion, no consultation would have resulted in any different course of action 

because the lateness of the expert disclosure by a full 13 days left Respondent no choice 

but to seek to avail itself of the protections of § 13.217 (f) in the furtherance of its duty to 

protect the interests of our client. Indeed, the argument that Respondent failed to consult 

rings hollow given the fact that Complainant's disclosure statement was served well after 

the deadline and Complainant could easily have contacted Respondent to advise of the 

difficulty in meeting the deadline. Complainant did not do so even after he returned to 

the office, but instead chose to serve the disclosure statement without such a request. 

Had such contact been made, then the parties could have attempted in good faith to 

resolve the issue. In fact, until the late service of the FAA's disclosure statement a full 

13 days after the deadline, Respondent did not even know Complainant intended to seek 

to rely on experts in this case

3 

2 In Your Honor's order served November 21, 2014 at page 4 you noted that 

Complainant could have taken steps to engage the services of other FAA counsel to cover 

for named counsel in his absence. 

3 If Your Honor decides to allow the FAA to provide Respondent with the FAA's initial 

expert disclosures l3 days late, the undersigned requests that the deadline for exchanging 

- 3 -
Further, Complainant's response at page 3 tries to rebut the facts supporting the 

pending motion by arguing that Respondent knew of the absence of Complainant's 

counsel based on the December 1st e-mail and that Complainant had therefore explained 

the situation to counsel. Complainant even goes so far to argue at page 3 that counsel for 

Respondent should have followed up with Complainant to inquire about the disclosure 

statement. Why would it have been reasonable for Respondent to pursue the question of 

the lateness of the expert disclosure having no reason to know Complainant contemplated 

the use of expert testimony is this case and to do so a full 13 days after the deadline for 

exchanging expert disclosure statements? Rather, counsel for Complainant should have 

raised the issue of his inability to meet the deadline with Respondent as it was clearly his 

issue to pursue. Complainant did not do so.

4 

While Complainant argues that the imposition of the sanctions sought by 

Respondent is "inappropriate" (Response, page 2) Complainant does not explain why this 

is so. This Complainant cannot do so because the relief sought by Respondent is 

expressly provided for in the FAA's Part 13 Rules of Practice. The argument that an 

expert rebuttal reports also be extended to give Respondent's counsel an opportunity to 

decide whether it is necessary for Respondent to make a rebuttal disclosure, especially if 

Your Honor orders Complainant to provide a more substantive disclosure. 

4 The argument at page 3, footnote 7 of the Complainant's response that Respondent did 

not follow up with Complainant after Respondent filed a motion to compel and after the 

Judge ordered the parties to consult is in error. Respondent has been diligent in trying to 

get Complainant to meet its discovery obligations. In the situation about which the 

Complainant writes, the FAA failed to provide the general scope of the topics discussed 

by the three primary FAA inspectors with others regarding this matter. Respondent's 

Motion to Compel dated May 22, 2014. On May 28, 2014 the FAA supplemented its 

prior answer to interrogatory no. 9 and argued in its opposition to the Motion to Compel 

that Respondent's motion was now moot because the interrogatory answer had been 

supplemented. In the cited Order of June 16, 2014 Your Honor suggested further 

consultation by the parties should Respondent seek greater specificity. As the 

Complainant had already provided the specific information sought by the time of the June 

16,2014 Order, there was no need for further consultation. 

- 4-
unexplained 13 day lapse is excusable is being made by the same party that argued that 

unless Respondent propounded discovery on the very frrst day of the opening of the 

several month discovery period, that Complainant should be relieved of the requirement 

to respond to Respondent's discovery requests5 

In an effort to parry the arguments in Respondent's pending motion, Complainant 

complains at page 5 of its Response about the elements it claims are lacking in the report 

of Respondent's expert. This is a strange argument for Complainant to make for the first 

time as the Respondent served its expert's report on Complainant by the then established 

May 2, 2014 deadline for the exchange of initial expert disclosures. Complainant made 

no effort to consult with Respondent over any alleged deficiencies in Respondent's expert 

report until seven months after the FAA received the report. It is simply not credible for 

the FAA's counsel to maintain that he "has not had the opportunity to complete 

discussions with opposing counsel on the matter" as the FAA claims. See Response, 

page 5, footnote 8. Based on Complainant's insistance that Respondent consult with 

Complainant even when Complainant does not indicate any required filing would be 

made ahnost one half month late, it seems odd that Complainant did not advise 

Respondent much sooner about any alleged deficiency in the report of Respondent's 

expert when first served last Spring. Following Complainant's "consultation" argument, 

Complainant should have approached Respondent to seek to consult on the matter -- a 

process the Complainant seems to think only is required of Respondent, but not the 

Complainant. 

5 See Response to Respondent's First Discovery Requests, page 1, March 6, 2014 and 

Complainant's Response in Opposition to Motion to Compel, page 1, March 14,2014. 

- 5 -
There is no question but the brevity of the FAA's offered expert disclosures 

makes the offering of even a cursory rebuttal all but impossible. While Complainant 

argues that any deficiency in the Complainant's expert reports should be the subject of 

consultation, by doing so Complainant ignores the fact that the disclosure of the expert's 

intended testimony was 13 days late. Nothing can cure that fact, so arguing consultation 

was required is just another obvious, but misplaced, attempt to obscure the fact that the 

expert report was not served by the date established in the litigation scheduling order. 

No mater how hard Complainant may try, there is no reasonable explanation for 

why Respondent could not have been advised in a timely manner of the delay of the filing 

of the expert statement and to consult about the issue and its obvious impact on the 

remaining procedural dates. Not having made any attempt to explain the lateness until 

well after the fact, the sanctions authorized by§ 13.217(f) are warranted and appropriate 

to this situation. 

Dated: December 8, 2014 

Respectfully submitted, 

SILVERBERG, GOLDMAN & BIKOFF, L.L.P. 

Attorneys for 

AIRBORNE MAINTENANCE AND 

EN]RING SERVICES 

1_ 1/:/ 

By: _/_!/ ~ / 

Robert P. Silverberg, Esq. 

1101 301

h Street, N.W. 

Suite 120 

Washington, D.C. 20007 

Tel: (202) 944-3304 

Fax: (202) 944-3306 

Email: rsilverberg@sgbdc.com 

- 6-
CERTIFICATE OF SERVICE 

I hereby certify that on this 8th day of December 2014, I caused a true copy of the 

foregoing Motion for Leave to File and Reply to Complainant's Response to Respondent's 

Motion for Sanctions to be served upon the following: 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building 

Suite 2W1000 

Washington, D.C. 20591 

(Attention: Hearing Docket Clerk, AGC-430) 

Tel: (202) 385-8229 

(original and one copy by FedEx) 

The Hon. J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, D.C. 20590 

Fax: (202) 366-7536 

(one copy by First Class Mail and facsimile) 

Christopher R. Stevenson, Attorney 

Federal Aviation Administration 

Office ofthe Regional Counsel, ASO-7 

Southern Region 

P.O. Box 20636 

Atlanta, Georgia 30320 

Fax: (404) 305-5223 

(one copy by First Class Mail and facsimile) 
SILVERBERG 

GOLDMAN& 

B IKO FF, L.L.P. 

ATIORNEYS AT LAW 

VL4FEDEX 

F edera1 Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building 

Suite 2W1000 

Washington, D.C. 20591 

GEORGETOWN PLACE • SunE120 • 1101 30TH STREET, NW • WASHil\'GTON, D.C. 20007 

VOICE (202) 944-3300 • FACSIMJLE(202) 944-3306 

December 8, 2014 RECEIVED 

DEC 0 9 2014 

HEARING DOCKET 

(Attention: Hearing Docket Clerk, AGC-430) 

Re: In the Matter of Airborne Maintenance and Engineering Services 

Docket: F AA-2013-0291 

FAA Case No.: 2011S0290032 

Dear Sir or Madam: 

Enclosed for filing in the above-referenced case please find an original and one 

copy of a Motion for Leave to File and Reply to Complainant's Response to 

Respondent's Motion for Sanctions. 

Also enclosed is an additional copy of the document and a pre-addressed, postage 

paid envelope. Please date-stamp the additional copy and return it to our office in the 

enclosed envelope. 

Thank you for your assistance. Please call me at the telephone number listed 

above if you have any questions regarding this matter. 

Very truly yours, 

SILVERBERG, GOLDMAN & BIKOFF, LLP 

Attorneys for 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES