UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

1 

IN THE MATTER OF: 

FELTS FIELD AVIATION 

FDMS No. 

FAA-2015-3307 

Respondent 

Thursday, 

December 15, 2016 

RFr'r::IVED 

DEC 3 0 2016 

rH:knii\IG DOCKET 

The teleconference convened, pursuant 

to notice, at 1:30 p.m. 

BEFORE: 

THE HONORABLE J.E. SULLIVAN, 

U.S. Administrative Law Judge 

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APPEARANCES: 

On Behalf of the Complainant: 

FATIMAH STOKLEY, ESQ. 

of: Federal Aviation Administration 

Office of the General Counsel 

Enforcement Division - Western Team 

P.O. Box 920007 

Los Angeles, California 90009 

310-725-7112 

On Behalf of the Respondent: 

MARK J. CONLIN, ESQ. 

BENJAMIN L. WYBORNEY, ESQ. 

of: Conlin, Maloney & Miller 

421 West Riverside Avenue, suite 911 

Spokane, washington 99201 

509-624-3020 

Also Present: 

CODY SMITH 

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1 P-R-0-C-E-E-D-I-N-G-S 

2 1:33 p.m. 

3 JUDGE SULLIVAN: Okay. We're on the 

4 record in the matter of Felts Field Aviation. 

5 This is Docket Number FAA-2015-3307. Today is 

6 Thursday, December 15, 2016, and the parties have 

7 convened for a motion conference on the 

8 Respondent's motion to compel. 

9 The Federal Aviation Administration, 

10 which I'll hereinafter refer to by its initials, 

11 the FAA, is represented by its Attorney of 

12 Record, Ms. Fatimah Stokley. The Respondent, 

13 Felts Field Aviation, Inc., is represented by its 

14 Co-Counsel, Mr. Mark J. Conley, Conlin, excuse 

15 me, and Mr. Benjamin L. Wyborney. 

16 Also present at the Office of 

17 Hearings, sitting in as an observer only, is Mr. 

18 Cody L. Smith, an attorney advisor with this 

19 office. 

20 So good afternoon to you all. What 

21 I'd like to do, what I'd like to do is a couple 

22 of procedural matters first so that we're all on 

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1 the same page. This is first directed to 

2 Respondent's Counsel. Which of you is planning 

3 to be the speaker today? 

4 MR. WYBORNEY: Well, Your Honor, it 

5 will be Ben Wyborney. 

6 JUDGE SULLIVAN: Thank you very much. 

7 Then what I will do is I •ll just outline what 

8 appears to be some of the salient background for 

9 why we're here today. And I 'm going to go 

10 through this fairly quickly. And I'll include it 

11 in whatever order I issue. 

12 On April 14, 2016, an order setting 

13 litigation dates and procedures was filed in this 

14 case. On July 14, 2016, an order extending 

15 certain litigation deadlines was filed. And 

16 among other things, this July 14, 2016, order 

17 denied the Respondent's July 12, 2016, oral 

18 motion to bar Mr. Eric Wells from testifying as 

19 an FAA expert. 

20 The July 14, 2016, order also directed 

21 the FAA to serve the Respondent on or before July 

22 22nd, 2016, with either a modified, redacted copy 

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1 of the FAA 51 or a privilege log justifying the 

2 redactions to the proffered Exhibit Cl. 

3 And then July 14, 2016, order also 

4 extended the deadline for the parties to complete 

5 general discovery from August 30, 2016, to 

6 September 16, 2016, with the understanding that 

7 the parties were going to try and maintain the 

8 current litigation schedule which included 

9 appearing in Spokane, Washington, in -- let me 

10 just double check on March 1, 2017, for 

11 hearing. 

12 Thereafter, in compliance with the 

13 July 14, 2016, order, the FAA timely served the 

14 Respondent on July 21, 2016, with a privilege log 

15 in a supplemented Exhibit C1. 

16 On September 13, 2016, it appears the 

17 Respondent served the FAA with a letter 

18 expressing dissatisfaction with the FAA's July 

19 21, 2016, materials and renewing a request for an 

20 un-redacted copy of the FAA's enforcement 

21 investigative report which is often referred to 

22 by its initials, DIR. 

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1 Three days later, on September 16, 

2 2016, the Respondent filed the Respondent's 

3 motion to compel. On September 22nd, 2016, the 

4 FAA filed the Complainant's opposition to the 

5 motion to compel. 

6 On September 30, 2016, the Respondent 

7 filed the Respondent's reply to the Complainant's 

8 opposition. And then the parties convened before 

9 this Court on November 10, 2016, for the 

10 originally scheduled motion conference. 

11 As you all may recall during that 

12 time, the Court discussed what some of the 

13 concerns were with the motion that had been filed 

14 in the opposition. The Court referred the 

15 parties to certain reference material and 

16 information regarding the scope of the attorney 

17 work product privilege and then continued the 

18 motion conference to today's date and time. 

19 Thereafter, on November 21, 2016, the 

20 FAA filed the Complainant's supplemental response 

21 to Respondent's first set of interrogatories and 

22 requests for production of documents. 

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1 And among other things, this 

2 particular filing notified the Respondent and the 

3 Court that the FAA was withdrawing its designated 

4 expert, Mr. Eric Wells, as a witness and instead 

5 planned to call Inspector Simone Clinton and 

6 Inspector Shirley French as lay witnesses. 

7 And then shortly thereafter, on 

8 December 8, 2016, the Respondent filed the 

9 Respondent's supplemental reply. 

10 So just so that I'm clear, I want to 

11 make sure that I haven't missed any particular 

12 filings that the parties filed in conjunction 

13 with the motion conference for today. Starting 

14 with the FAA, Ms. Stokley, is there anything that 

15 you have filed between now -- between December 

16 8th and today that I don't know about? 

17 MS . STOKLEY: I'm sorry, no, Your 

18 Honor. 

19 JUDGE SULLIVAN: Okay. And same 

20 question to you, Mr. Wyborney. 

21 MR. WYBORNEY: No, Your Honor, we've 

22 not filed anything. 

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1 JUDGE SULLIVAN: Okay. Then I'm going 

2 to typically, what I do is I look to the 

3 moving party first for a brief narrative of the 

4 issue. And then I turn to the responding party 

5 for an answer. 

6 But because of the unique filings in 

7 this case, I'm going to deviate from that for 

8 just a moment. And I'm going to address my first 

9 question to the FAA. And then we can get into 

10 some of the motion conference material. 

11 Ms. Stokley, I am looking at your 

12 November 21, 2016, filing entitled the 

13 Complainant's Supplemental Response to 

14 Respondents' first set of interrogatories and 

15 request for production of documents. Do you have 

16 that in front of you as well? 

17 MS. STOKLEY: Yes, Your Honor. 

18 JUDGE SULLIVAN: Okay. On Page 2 of 

19 this two-page document, at the very end of the 

20 material, above the signature line, there's an 

21 interrogatory identified as Interrogatory Number 

22 3 with a question and then an answer stated. 

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1 And the answer indicates that the FAA 

2 does not intend on calling an expert witness in 

3 this case. So I have some questions for you 

4 about the individuals that you have designated as 

5 witnesses on Page 1 and identified with 

6 testimonial summaries on Page 2. 

7 So as I understand it, on Page 1 of 

8 this two-page document, Simone Clinton is an FAA 

9 inspector. Is that correct? 

10 MS. STOKLEY: Yes, Your Honor. 

11 JUDGE SULLIVAN: okay. And your 

12 second Witness, Shirley French, is also an FAA 

13 inspector? 

14 MS. STOKLEY: Yes, Your Honor. 

15 JUDGE SULLIVAN: Okay. I want you to 

16 educate me if you will, since perhaps there are 

17 some things that I don't know and don't 

18 understand about this particular document. And 

19 I'm going to use a hypothetical question to kind 

20 of get us started. 

21 I have a brother who's looking for a 

22 job. 

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And he has a college degree. 

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Could he 

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1 apply today to become an FAA inspector, get 

2 hired, and start working immediately with a 

3 college degree? 

4 MS. STOKLEY: Yes, he can apply. But, 

5 I mean, there are several criterions that we use 

6 when we determine, you know, who to hire as an 

7 inspector. And additionally, inspectors go 

8 through a lot of training prior to beginning to 

9 act in their role as inspectors. So there is a 

10 lot of training that the FAA provides as well. 

11 JUDGE SULLIVAN: So let's assume that 

12 a college degree was sufficient for him to at 

13 least enter the gate of inspector work. What 

14 kind of training would he need to take before he 

15 could be allowed to go out into the field and do 

16 what, say, Inspector Clinton does on a regular 

17 basis? 

18 MS. STOKLEY: I'm not -- I may need to 

19 provide a supplemental response, because I'm not 

20 extremely familiar with, specifically, the Drug 

21 Abatement Division training. And so I can't --

22 

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JUDGE SULLIVAN: Well, I'm not sure 

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1 that you need to that right now. It sounds like, 

2 however, that special training would be required 

3 before my brother could go out and be an 

4 inspector on the field. Would that be a fair 

5 thing to say? 

6 MS. STOKLEY: Yes. 

7 JUDGE SULLIVAN: Okay. Do you have 

8 any idea, just off the top of your head, how many 

9 days, or weeks, or months it would take for the 

10 FAA to train my brother to do work as an 

11 inspector? 

12 MS. STOKLEY: No, Your Honor. The 

13 training varies depending on the type of 

14 inspector. 

15 JUDGE SULLIVAN: Okay. So leaving 

16 that hypothetical aside for a moment, and 

17 getting back to Page 1 and 2 of your supplemental 

18 response filed on November 21, 2016, if you've 

19 identified Inspector Clinton and Inspector French 

20 as Witnesses in lieu of Inspector Wells, who had 

21 previously been identified as an expert, how is 

22 it, in your opinion, that they suddenly are not 

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1 experts but should be treated as lay witnesses? 

2 Because as I understand the standard 

3 for a lay witness, utilizing the Rules of 

4 Evidence as guidance, a lay witness would be 

5 called if he or she did not have specialized 

6 training or expertise and would be testifying 

7 simply from personal knowledge and perception. 

8 Whereas an expert witness is someone 

9 who could qualify, by specialized knowledge, 

10 training, and expertise, or experience, to 

11 provide helpful dialogue or helpful information 

12 to the Court based on that expertise. 

13 So what is it that you're trying to do 

14 here? Because I'm really unsure. 

15 MS. STOKLEY: Your Honor, just to 

16 clarify, Inspector Clinton and Inspector French, 

17 both of these inspectors were listed as witnesses 

18 from the beginning, in addition to Eric Wells. 

19 And so Eric Wells was just listed as 

20 an expert witness because he was going to provide 

21 expert testimony regarding his opinions about the 

22 Drug Abatement Program and specifically applying 

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1 his experience and his background in Drug 

2 Abatement to the Respondent's operations. 

3 Because Felts Aviation was relaying on 

4 the defense that they relied on the third party 

5 consortium. And they were not personally liable 

6 for not having their employee in the random pool 

7 for drug testing. 

8 JUDGE SULLIVAN: Okay. 

9 MS. STOKLEY: So Simone Clinton and 

10 Shirley French will be testifying about their 

11 observations, because they are actually present 

12 during the inspection of Felts Field. And so 

13 that's what their testimony will include. They 

14 will not be providing opinion testimonies. And 

15 that's why they are not listed as expert 

16 witnesses. 

17 JUDGE SULLIVAN: So they're not 

18 testifying in their capacity as a trained 

19 inspector. They're testifying simply because 

20 they happened to be at the investigation at the 

21 time it was conducted? 

22 MS. STOKLEY: Yes, Your Honor. But 

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they also were there as inspectors. And so I 

guess I'm confused about what exactly you're 

asking me. 

JUDGE SULLIVAN: Well, I'm confused a 

little bit because you're listing someone who has 

specialized expertise and training. 

MS. STOKLEY: But they also have 

personal knowledge, because they were present 

during the inspection that occurred in this case. 

And they 

JUDGE SULLIVAN: Well, weren't they 

conducting the inspection in their capacity as 

trained experts? 

MS. STOKLEY: Yes, Your Honor. 

JUDGE SULLIVAN: Well, if that's the 

case, then why aren't they identified as an 

expert witness? 

MS. STOKLEY: Because they will not be 

providing opinion testimony, and they are not 

providing expert testimony during this hearing. 

we don't 

testimony. 

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1 JUDGE SULLIVAN: Well, you have -- and 

2 I'm going to be looking at Page 2 of the two-page 

3 document -- an identification of Simone Clinton 

4 as a witness who is, and I quote, "Drug and 

5 alcohol compliance and enforcement inspector," 

6 planning to testify about, "Information she 

7 discovered during the course of the investigation 

8 against Felts Field Aviation, Inc. in her role as 

9 an inspector." Isn't that the very definition of 

10 an expert witness? 

11 MS. STOKLEY: No, Your Honor. 

12 JUDGE SULLIVAN: So she's not going to 

13 be testifying about her role as an inspector. 

14 She's not going to be testifying about any 

15 specialized knowledge she has as a drug and 

- 16 alcohol compliance and enforcement officer? 

17 She' s not going to talk about air 

18 carrier operation specifications which would 

19 require some expertise? She's just going to talk 

20 about what she observed as a lay person and not 

21 provide any opinion? 

22 

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MS. STOKLEY: But her discussing these 

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1 documents is not her providing opinions. I think 

2 that those are two separate concepts. 

3 JUDGE SULLIVAN: What documents are 

4 you referring to? 

5 MS. STOKLEY: I'm referring to the 

6 operation specifications. Her discussing 

7 operation specifications is not her providing 

8 expert opinion. 

9 JUDGE SULLIVAN: Why not? 

10 MS. STOKLEY: Because she 's it's 

11 explanatory. She will be explaining the 

12 operation specifications of Felts Field and how 

13 specifically they are required to comply with the 

14 Federal Aviation regulations. 

15 JUDGE SULLIVAN: And is that something 

16 my brother could do if he walked in off the 

17 street? 

18 MS. STOKLEY: I mean, if you brother 

19 was· an FAA inspector then, yes, he could do that. 

20 But I'm not -- I guess I'm not sure how to answer 

21 that question? What is -- I guess, how does that 

22 question relate to what you're asking me right 

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1 now? 

2 JUDGE SULLIVAN: Well, I'm going to 

3 ask you, do you have a copy of the Federal Civil 

4 Rules and the Federal Rules of Evidence before 

5 you, just to cite? 

6 MS. STOKLEY: Okay. Yes, Your Honor. 

7 JUDGE SULLIVAN: Okay. Let's turn to 

8 the pages that are identified as Rule 701 and 

9 Rule 702 which talk about the primary 

10 distinctions between a lay witness and an expert 

11 witness. And let me know when you have those 

12 pages open. 

13 MS. STOKLEY: I have them open, Your 

14 Honor. 

15 JUDGE SULLIVAN: Okay. Look at Rule 

16 701. 701 just talks generally about when opinion 

17 testimony may be proffered by a lay witness. And 

18 under 701C, as in cat, it makes it very clear 

19 that opinion testimony is limited to those 

20 matters that are, "Not based on scientific, 

21 technical, or other specialized knowledge within 

22 the scope of Rule 702." 

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1 MS. STOKLEY: So, Your Honor, are you 

2 suggesting that any FAA inspector who testifies 

3 needs to be declared an expert? 

4 JUDGE SULLIVAN: I'm suggesting that 

5 if you are calling a witness who is qualified to 

6 who you want to qualify as having some 

7 expertise in any matter, you likely are going to 

8 run afoul of due process if you do not identify 

9 them as an expert. 

10 You're certainly welcome to call 

11 anyone you want to provide lay testimony that 

12 would be the type of testimony that any person 

13 off the street would be able to provide if they 

14 happen to be in the area and watch something 

15 happen. 

16 And you're also perfectly capable of 

17 calling a witness who has specialized knowledge 

18 and expertise to testify within the scope of that 

19 expertise. But typically, that person would be 

20 deemed an expert. 

21 And you run afoul of the rules of 

22 general litigation practice if you try and 

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1 present expert witnesses under the auspices of a 

2 lay heading. So when I see this particular 

3 document that you have filed on November 21, 

4 2016, it gives me great concern. 

5 Now, if you want to call these two 

6 people as lay witnesses, they would be limited, 

7 in this Court's opinion, to lay testimony. But 

8 it appears to me that what you're trying to do is 

9 identify experts as lay and avoid the 

10 responsibilities that your client has, which is 

11 to present expert testimony in this or any other 

12 litigation. 

13 MS. STOKLEY: Well, Your Honor, that 

14 is not what the Agency is trying to do. 

15 JUDGE SULLIVAN: What are you trying 

16 to do then? 

17 MS. STOKLEY: I'm trying to have the 

18 inspectors testify regarding the facts, you know, 

19 that they observed during the course of their 

20 investigation of the Respondent. In their 

21 testimony, they can explain the FAA process if 

22 need be. 

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1 factual. 

2 JUDGE SULLIVAN: So if you call this 

3 person, let's say Inspector Clinton, you would 

4 not be asking the Court to listen to any of her 

5 training or expertise qualifications, for 

6 example? You would simply be saying here's an 

7 employee from the FAA? 

8 MS . STOKLEY: Well, I will ask her 

9 questions regarding, you know, how long she's 

10 been employed and her background. But that is to 

11 lay a foundation. 

12 JUDGE SULLIVAN: For what? 

13 MS. STOKLEY: To show that she is 

14 knowledgeable about the FAA's processes. And 

15 that's why she was there as an inspector 

16 investigating the Respondent. 

17 JUDGE SULLIVAN: Well, that sounds 

18 like the definition of an expert witness and the 

19 qualifications for an expert witness. 

20 MS. STOKLEY: So, I mean, it seems 

21 like what you're suggesting is, for the simple 

22 fact that she's an inspector for the FAA, she's 

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1 an expert? 

2 JUDGE SULLIVAN: I'm not asking, 

3 Counsel, I'm asking you if you're trying to call 

4 this person as a witness with specialized 

5 knowledge. And what I'm hearing from you is 

6 that, yes, that's what you want to do. 

7 MS. STOKLEY: Your Honor, she will not 

8 be testifying as an expert witness. She will be 

9 testifying about her facts and observations, the 

10 observations she made during the course of her 

11 investigation. She will be introducing documents 

12 to support her testimony. 

13 JUDGE SULLIVAN: Well, I look forward 

14 to a very interesting trial experience, Counsel, 

15 if that's the case. I'll simply note, however, 

16 that in this Court's experience it sounds very 

17 much like an expert witness. And you may be 

18 facing some objection if you try and go beyond 

19 the scope of what a lay witness would be allowed 

20 to testify to. 

21 Do you have anything else you would 

22 like to say about this particular matter before I 

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1 turn to Counsel for the Respondent? 

2 MS. STOKLEY: No, Your Honor. 

3 JUDGE SULLIVAN: Okay. Thank you. 

4 Mr. Wyborney, let's talk a little bit about the 

5 status of the case at this point in time. 

6 MR. WYBORNEY: Yes, Your Honor. 

7 JUDGE SULLIVAN: We had a conference 

8 where there was a dispute about Inspector Wells 

9 being called as an expert but not providing the 

10 full disclosure of the inspection report that had 

11 been authored by Inspector Clinton, who Ms. 

12 Stokley just indicated would not be called as an 

13 expert on behalf of the FAA. 

14 And so Mr. Wells is no longer on the 

15 table as a potential expert. And I've read your 

16 reply material. And I do have a question for you 

17 about that. 

18 Because it appears to be that there is 

19 a strong distinction to be made between experts 

20 withdrawn by the FAA and experts withdrawn from, 

21 like, parties in other types of 

22 litigation. 

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federal 

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1 And I'm going to go to the CFRs. So 

2 I have before me 14 CFR, Part 1 to 59. And I'm 

3 going to give you a particular section to look 

4 at, as we discuss this particular matter. And 

5 this is specifically 14 CFR, Section 13.227. And 

6 when you have that in front of you, then we can 

7 continue our discussion. 

8 MR. WYBORNEY: I'm looking at it now, 

9 Your Honor. 

10 JUDGE SULLIVAN: Okay. This 

11 particular regulation says that an employee of 

12 the Agency, the FAA, may not be called as an 

13 expert or opinion witness for anyone other than 

14 the FAA. 

15 So if Mr. Wells is barred from you as 

16 an expert witness by virtue of his employment 

17 with the FAA, I have a question for you about the 

18 argument that you make in your reply, 

19 supplemental reply, excuse me. You assert in 

20 your supplemental reply that Mr. Wells -- maybe 

21 I'm looking at the wrong one. Let me just look 

22 at this for just a moment. 

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1 MR. WYBORNEY: Yes, Your Honor. 

2 JUDGE SULLIVAN: Yes, it's Page 3 and 

3 4 of your supplemental reply. You're indicating 

4 that, even if Mr. Wells is withdrawn as the 

5 expert witness, his report is still entirely 

6 discoverable, because he had been identified as 

7 the expert witness. 

8 And I'm looking if that argument 

9 really is as strong as you would like it to be. 

10 Because typically, as I understand case law, that 

11 type of argument works best if you still have the 

12 ability to call the expert witness yourself, to 

13 convert that expert witness to your own witness. 

14 And in this case, that's not true. 

15 You can't convert him, you cannot call him 

16 against his own employer. 

17 MR. WYBORNEY: That's correct, Your 

18 Honor. However, we still are entitled to access 

19 to his facts and opinions known. 

20 JUDGE SULLIVAN: And why do you think 

21 that's so? And I have all the case law that was 

22 cited by the parties. And if you want me to look 

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1 at Panasonic, in particular, I will. If you have 

2 some other case to route me to, please tell me. 

3 MR. WYBORNEY: Oh, the other case I 

4 would show you, Your Honor, is SEC versus Koenig. 

5 That specifically says that if the expert 

6 witness' written report has been submitted, and 

7 in this case, his written report has been 

8 submitted, then that report remains discoverable. 

9 JUDGE SULLIVAN: Okay. And I have 

10 Koenig right in front of me. Why don't you tell 

11 me what page you're on so I can join you? 

12 MR. WYBORNEY: Just let me bring it 

13 up, Your Honor. I believe I'm looking at Page 

14 744. 

15 JUDGE SULLIVAN: Okay. Give me a 

16 moment and I' 11 join you. Okay. I'm right 

17 there. 

18 MR. WYBORNEY: okay. I'm looking at 

19 my citation. I'm not quite as fast as I'm 

20 getting it right now. 

21 (Pause) 

22 JUDGE SULLIVAN: When you're ready, 

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1 let me know. 

2 MR. WYBORNEY: Yes, Your Honor. All 

3 right. I am now looking at Page 744, Your Honor. 

4 JUDGE SULLIVAN: Okay. I am too. And 

5 I'm looking more towards the bottom of the page. 

6 And it --

7 MR. WYBORNEY: Yes. 

8 JUDGE SULLIVAN: It starts with a 

9 paragraph that says, "Suppose this is wrong." 

10 MR. WYBORNEY: That's exactly the 

11 paragraph, Your Honor, yes. 

12 JUDGE SULLIVAN: Okay. In the very 

13 bottom of that paragraph, it says the following. 

14 And I'm going to quote. "A witness identified as 

15 a testimonial expert is available to either side; 

16 such a person can't be transformed after the 

17 report has been disclosed and a deposition 

18 conducted to the status of a trial preparation 

19 expert whose identity and views may be 

20 concealed.'' 

21 Assuming that all of that is still 

22 good and current dialogue, it would seem to me 

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1 that this particular case is not as helpful as 

2 you might want it to be. Because, one, FAA 

3 experts are not available to you to call against 

4 their own employer by regulation, as we've just 

5 discussed. 

6 And, two, a definition has not been 

7 conducted. And it appears that the FAA has 

8 timely withdrawn Mr. Wells as its identified 

9 expert, at least in this particular proceeding. 

10 That doesn't mean that we can't reach 

11 some of the other issues regarding your motion to 

12 compel facts and potential legal theories, but 

13 I'm thinking that it does put some limitation on 

14 your request for complete and totally un-redacted 

15 EIR in this particular motion to compel. 

16 MR. WYBORNEY: Your Honor, I find the 

17 next sentence more persuasive. Disclosure of the 

18 report ends the opportunity to invoke 

19 confidentiality. 

20 JUDGE SULLIVAN: And why do you think 

21 that should control, if in fact this witness is 

22 not available to you? 

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1 MR. WYBORNEY : Because, first, they 

2 have published their expert witness report, that 

3 is Exhibit C3. And that expert report relies so 

4 heavily on the EIR at Exhibit C1 that I don't see 

5 how you can separate the two. 

6 So that entire report, C1, should be 

7 part of the expert's written report. I believe 

8 that it is part of the expert's written report. 

9 And I believe if they disclosed it, we're still 

10 having the discussion about how much they need to 

11 disclose. 

12 And I don't think that withdrawing Mr. 

13 Wells as an expert witness really invokes 

14 confidentiality. After it's been made 

15 discoverable, after the Witness report, it should 

16 remain discoverable. 

17 JUDGE SULLIVAN: And when you say 

18 Exhibit C1, I'm looking at your motion to compel, 

19 Exhibit C, as in cat. And I have a letter dated 

20 August 9, 2016. 

21 MR. WYBORNEY: I apologize, Your 

22 Honor, I was a little bit unclear. 

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When I 

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1 discussed Exhibit C1, I am talking about the 

2 Complainant's response, Respondent's first set of 

3 interrogatories and request for production of 

4 documents. That is dated, just a second here, I 

5 believe that is dated July 8th. And Exhibit C --

6 JUDGE SULLIVAN: Before you continue, 

7 when was that filed with the Court? 

8 MR. WYBORNEY: One second, Your Honor. 

9 I believe it was July 8th. 

10 (Pause) 

11 MR . WYBORNEY : Actually, July 11th. 

12 I believe the complete response was filed on July 

13 11th. The partial response was filed on July 

14 8th. 

15 JUDGE SULLIVAN: And I'm going to go 

16 and look at my materials. Because I think the 

17 parties may have some things that I never 

18 received. And that's typical with discovery in 

19 particular, because discovery is not filed with 

20 the Court unless it's attached to a motion to 

21 compel or a response to a motion to compel. 

22 So I can tell you that on July 8th, 

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1 the FAA filed by fax with the Court an eight page 

2 document titled Complainant's response to 

3 Respondent's first set of interrogatories and 

4 requests for production of documents. 

5 MR. WYBORNEY: That's the document I'm 

6 looking at, Your Honor. 

7 JUDGE SULLIVAN: And this Court noted 

8 that in its July 14, 2016, order extending 

9 certain litigation deadlines. The Court also 

10 noted that the document was incomplete since it 

11 did not include any of the referenced exhibits. 

12 MR. WYBORNEY: Yes, Your Honor. On 

13 July 11th is when we received the rest of those 

14 exhibits. 

15 JUDGE SULLIVAN: Well, you may have 

16 received them, Counsel, but I don't believe that 

17 I ever did. So let me ask you if, if some of the 

18 other materials I have might be similar or 

19 duplicative of what you're asking me to look at. 

20 So in your motion to compel, you have 

21 what you identify as Exhibit A, as in apple. And 

22 it looks like it's the same or some of the same 

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1 materials that we're talking about. This is the 

2 post --

3 MR. WYBORNEY: Following that hearing, 

4 this is the privilege log. 

5 JUDGE SULLIVAN: Right. This is the 

6 July 21, 2016, material that the FAA served you. 

7 And it has a privilege log, and then it also 

8 appears to have a copy of Exhibit C1 pages, which 

9 is identified as Pages, Exhibit A, 3, 4, 5, 6, 7, 

10 and 8. Is that what you're talking about? 

11 MR. WYBORNEY: That is the EIR that I 

12 am seeking complete discovery of. 

13 JUDGE SULLIVAN: Okay. Thank you. 

14 And essentially, what you're saying is, even 

15 though Mr. Wells has been withdrawn and is no 

16 longer going to be testifying as an expert, and 

17 the FAA asserts that it has no expert it's going 

18 to offer, that this particular EIR should be 

19 disclosed in its entirety. Because it was 

2 o reviewed by Mr. Wells in his capacity as the 

21 potential expert. 

22 MR. WYBORNEY: That is correct, Your 

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1 Honor. 

2 JUDGE SULLIVAN: Okay. Let's. say, 

3 just for the sake of argument, that I don't agree 

4 with you. And let's go to the possibility that 

5 there are some materials in this EIR that would, 

6 on an alternate ground, still be available for 

7 disclosure on the grounds that it's not covered 

8 by the attorney work product privilege. Let's 

9 just go that potential discussion. 

10 MR. WYBORNEY: Yes, Your Honor. 

11 JUDGE SULLIVAN: If that's so, let's 

12 review, just very briefly, what in this 

13 particular document do you think would still need 

14 to be disclosed? Because it would not qualify as 

15 privileged under the attorney work product 

16 privilege, so starting on page, what looks like 

17 Page 3 of Exhibit A. 

18 MR. WYBORNEY: Oh, yes, on Page 3 of 

19 -- Page 3 of Exhibit A. 

20 JUDGE SULLIVAN: Right. And it says 

21 Enforcement Investigative Report. It starts out 

22 with the name of your client. And then the first 

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1 blacked-out portion is in Box Number 18, 

2 regulations believed violated. 

3 MR. WYBORNEY: Your Honor, I think 

4 that that should be disclosed, certainly to tell 

5 me what regulation that my client has allegedly 

6 violated. 

7 JUDGE SULLIVAN: Okay. And what 

8 about, going down to the rest of the page, if 

9 there's anything else that you think should be 

10 disclosed as being not covered by the work 

11 product privilege? 

12 MR. WYBORNEY: Your Honor, may I make 

13 an observation? 

14 JUDGE SULLIVAN: Sure. 

15 MR. WYBORNEY: The FAA is not trying 

16 to assert work product. They're only trying to 

17 assert deliberative process. 

18 JUDGE SULLIVAN: I understand that. 

19 MR. WYBORNEY: Yes, Your Honor. I 

20 would ask for Box 26, the sanction amount. My 

21 client is certainly entitled to know what the 

22 potential sanction is. 

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1 JUDGE SULLIVAN: Do you not already 

2 know that by virtue of the complaint that's been 

3 filed? 

4 MR. WYBORNEY: Oh, I can look at the 

5 operator's table of sanction range. But I don't 

6 know what sanction they've chosen in that range. 

7 JUDGE SULLIVAN: So you have not 

8 requested any information about how the civil 

9 penalty was calculated? 

10 MR. WYBORNEY: Your Honor, this entire 

11 motion is part of that request for that 

12 information. 

13 JUDGE SULLIVAN: Other than asking for 

14 the EIR, I'm asking you if you have submitted, 

15 for example, a separate interrogatory to the FAA 

16 asking them for a detailed calculation of what 

17 they utilized to come up with the proposed fine. 

18 MR. WYBORNEY: Yes, Your Honor. On 

19 August 9th, we sent a very detailed letter to the 

20 FAA. I can certainly submit a copy of that if 

21 you'd like. 

22 

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1 for in that August 9, 2016, letter that you did 

2 or did not get regarding the proposed civil 

3 penalty? 

4 MR. WYBORNEY: We did not get any 

5 positive reply. The response was a blanket no. 

6 That letter is six pages long. I can certainly 

7 go over the main points of it, if you would like. 

8 JUDGE SULLIVAN: In terms of the 

9 proposed civil penalty, what did that letter ask 

10 for and what did you receive in response? 

11 MR. WYBORNEY: Well, I received 

12 nothing had been released before the response. I 

13 asked for factors affecting sanction, I asked for 

14 information on the owner's level of experience, 

15 responsibility. I basically went through all of 

16 the redacted headings on Pages 3 and 4 of the 

17 EIR. If you look at Page 5 of Exhibit A 

18 JUDGE SULLIVAN: Yes? 

19 MR. WYBORNEY: factors affecting 

20 sanction, I asked for all of that information. 

21 JUDGE SULLIVAN: And that being, "the 

22 nature of the violation including how safety was 

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1 affected?'' 

2 MR. WYBORNEY: I asked for that 

3 paragraph, I asked for the next paragraph, 

4 whether the violation was inadvertent and not 

5 deliberate. I asked for the next paragraph, 

6 certificate of owner's level of experience, which 

7 they did un-redact after you asked them to 

8 provide more information. 

9 I asked for the attitude of the 

10 violator. I asked for the degree of hazard. I 

11 asked for the action taken by employer or other 

12 authority. I asked for information on the use of 

13 the certificate, basically everything that you 

14 see redacted here, Your Honor. 

15 JUDGE SULLIVAN: And when you say 

16 everything you see redacted, are you also 

17 including Pages 7 and Page 8 of Exhibit A to your 

18 motion to compel? 

19 MR. WYBORNEY: On Page 8, I did leave 

20 two things out. I did not ask for the opinion, 

21 opinions. I thought that that might be covered 

22 by attorney-client privilege at the time. 

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1 I did not ask for recommendations 

2 about the type of sanction. I understand that 

3 the sanction is going to be monetary. And I also 

4 think that the recommendation might have been 

5 privileged. So I did not ask for it. 

6 I did not ask about "considering 

7 grievance justifying,'' I did not ask for that 

8 paragraph. And regional sanction 

9 recommendations, I did not ask about that. 

10 At the time, I thought opinions and 

11 recommendations would probably be covered by 

12 privilege. This letter is -- was, I believe, 

13 prior to no, I'm sorry, it was after. At the 

14 time, I thought that the recommendations and 

15 opinions were probably protected by privilege. I 

16 no longer think that. And so I clearly did not 

17 ask for those. Everything else I did ask for, 

18 Your Honor. 

19 JUDGE SULLIVAN: When you say you no 

20 longer think that these particular items on Page 

21 8, that you've just talked about, are no longer 

22 covered by privilege, is that because you believe 

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• 
38 

1 that they are encompassed by the information that 

2 we talked about in the Koenig case? 

3 MR. WYBORNEY: Yes, Your Honor. 

4 JUDGE SULLIVAN: Okay. So let me ask 

5 you this. Have you deposed any witnesses that 

6 have been identified by the FAA? 

7 MR. WYBORNEY: No, Your Honor. We 

8 would like to depose, but I believe I need to 

9 have some of this information before I can ask 

10 intelligent questions in deposition. 

11 JUDGE SULLIVAN: Okay. Yes, I would 

12 agree with you, Counsel. 

13 Ms. Stokley, let's turn to you. And 

14 we're going to stay of Exhibit A of the 

15 Respondent's motion to compel. Do you have that 

16 in front of you? 

17 MS . STOKLEY: I have my Exhibit C1. 

18 So if you can just, I believe it's the same 

19 document, if you can just read the heading where 

20 you're at, I can follow you. 

21 JUDGE SULLIVAN: Well, it would be 

22 even better if you could look at the materials 

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1 that the Respondent filed that both the 

2 Respondent and I are looking at. Could you take 

3 a moment to get those? 

4 MS. STOKLEY: One second, Your Honor. 

5 Okay, I believe I have it in front of me. 

6 JUDGE SULLIVAN: Okay. Typically, in 

7 litigation, as the Court talked about briefly at 

8 the last motion conference on November 10, 2016, 

9 facts that are garnered in any investigation are 

10 subject to disclosure. 

11 And as you have so poignantly pointed 

12 out in this conference you want to bring two 

13 witnesses in to talk about those facts. So why 

14 is it, in your opinion, that on Page 5 of Exhibit 

15 A, attached to the Respondent's motion to compel, 

16 the Respondent is not allowed to know what your 

17 client and Y?Ur client's witnesses would testify 

18 to regarding the nature of the violation and how 

19 safety was affected. That would seem to be a 

20 factual matter that's subject to full disclosure. 

21 MS. STOKLEY: Your Honor, this 

22 information has been redacted because it's 

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1 privileged information. And it's pre-decisional 

2 internal communications within the FAA. so the 

3 Respondent has been notified of the nature of the 

4 violation in the notice that the Agency provided 

5 to the Respondent and again in the final notice, 

6 that we --

7 JUDGE SULLIVAN: And in your opinion, 

8 does the Respondent not, if he asks for the 

9 material separately from the EIR, the Respondent 

10 is not allowed to get a response from you? 

11 MS . STOKLEY: Your Honor, if the 

12 Respondent submitted a separate interrogatory 

13 asking the FAA what is the nature of the 

14 violation and how safety was affected, I would 

15 provide an answer to the Respondent. 

16 JUDGE SULLIVAN: Would that answer be 

17 cryptic and say he's not allowed to have that 

18 information, or would you provide facts 

19 sufficient to satisfy the question? 

20 MS. STOKLEY: Your Honor, I would 

21 provide a sufficient I would provide a 

22 sufficient answer. It's not my intention to try 

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1 to be elusive or not straightforward with the 

2 Respondent. 

3 I just don't believe that they are 

4 entitled to the information in the EIR, because 

5 it's pre-decisional information. They have not 

6 submitted interrogatories specifically requesting 

7 the information that they seek. If they submit 

8 interrogatories, I will provide a subsequent 

9 answer. 

10 JUDGE SULLIVAN: So as I understand it 

11 from your response, you're asserting that any 

12 information that your investigator puts in the 

13 EIR for review by regional counsel might be 

14 covered under the attorney-client work product 

15 privilege. But you would still be responsible 

16 for answering questions about how you, as the 

17 Attorney, would be presenting facts to support 

18 the legal theories contained in your complaint. 

19 MS. STOKLEY: Your Honor, I would be 

20 answering on behalf of the Agency. But I believe 

21 that information that's pre-decisional 

22 deliberations, recommendations, and opinions that 

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1 are part of the Agency's decision-making process, 

2 are protected. 

3 JUDGE SULLIVAN: And how is and 

4 under what basis are you claiming that kind of 

5 protection? 

6 MS. STOKLEY: The deliberative process 

7 privilege, Your Honor. 

8 JUDGE SULLIVAN: Okay. Well, let's 

9 talk about that for just a moment. And I'm going 

10 to ask you if you would be so kind to take a look 

11 at one of the cases that -- I think you cited 

12 this. Let me just double check. 

13 Either you cited it or the Respondent 

14 cited it. And I'm going to I'm going to just 

15 tell you which case it was. And then we can work 

16 out that little detail afterwards. 

17 This is a case called Sikorsky 

18 Aircraft Corporation versus the United States. 

19 The citation is 106 Federal Claims, 571, decided 

20 in the year 2012. Do you have that case in front 

21 of you? 

22 

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1 Your Honor? 

2 JUDGE SULLIVAN: Sure. It's called 

3 Sikorsky, S-I-K-0-R-S-K-Y, Aircraft Corporation 

4 versus the United States, 106 Federal Claims, 

5 571, the year is 2012. 

6 MS. STOKLEY: One second, Your Honor. 

7 JUDGE SULLIVAN: Sure. Ms. Stokley, 

8 if you don't have that right in front of you, I'm 

9 sure we can talk about it in general terms. 

10 MS. STOKLEY: Okay, Your Honor. 

11 JUDGE SULLIVAN: Okay. You had 

12 indicated that you want to claim a deliberative 

13 process discovery privilege because of pre14 decisional activity. 

15 And as you probably know, based on the 

16 materials that the _Respondent cited and the 

17 materials that Court gave to both parties to read 

18 on November 10, 2016, there is a difference 

19 between the attorney work product privilege that 

20 may be claimed in litigation and the deliberative 

21 process that agencies want to claim for pre22 decisional activities involved in the adoption of 

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1 Agency policy. 

2 So I'm looking at this case as a case 

3 involving work product privilege which protects 

4 an attorney's work opinions and work product as 

5 well as an attorney's investigative team's work 

6 product and opinions for purposes of 

7 investigating and preparing for litigation. 

8 And that's different from the work 

9 product or that's different from the 

10 deliberative process privilege that agencies 

11 claim while they're in the process of developing 

12 policy for the Agency. 

13 Now, there are many crossovers between 

14 the two. And the Sikorsky case really talks in 

15 depth about that which is helpful, I think, to 

16 us. But it does not appear- to this Court, 

17 particularly given the materials that have been 

18 submitted by you on behalf of your client, that 

19 you are invoking the deliberative process 

2 0 privilege, because you haven't met any of the 

21 standards that the Sikorsky case says you must 

22 meet in order to claim that type of privilege. 

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1 Which means that I think that we are 

2 all talking about the work product privilege. 

3 And I want to just double check with you about 

4 that. 

5 Because if you are claiming the 

6 deliberative process discovery privilege that is 

7 discussed by Sikorsky, then you need to tell us 

8 where in your materials you have met the 

9 standards for that invocation? And if you 

10 haven't met that standard, then you must be 

11 talking with us about work product privilege 

12 instead. 

13 MS. STOKLEY: Is that a question, Your 

14 Honor? 

15 JUDGE SULLIVAN: I'm sorry? I'm 

16 sorry, I couldn't hear you. 

17 MS. STOKLEY: I said is that a 

18 question? Or are you --

19 

20 

21 

22 are you, 

(202) 234-4433 

JUDGE SULLIVAN: Yes. 

MS. STOKLEY: A question? 

JUDGE SULLIVAN: Yes. 

in fact, trying to 

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I'm asking you 

assert the 

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1 deliberative process discovery privilege in this 

2 case? And if so, can you identify, in your 

3 working materials that you filed, where you have 

4 met the standard for invoking that privilege? 

5 MS . STOKLEY: Well, I'm acting on 

6 behalf of the Assistant Chief Counsel for the 

7 FAA, Naomi Tsuda. So that's the Agency head. As 

8 far as, I mean, I am invoking the deliberative 

9 process privilege, Your Honor. And the --

10 JUDGE SULLIVAN: And you're saying 

11 that it takes prece~ence in this case over the 

12 attorney work product privilege? 

13 MS. STOKLEY: I mean, it seems like in 

14 the case, the airborne maintenance case, that you 

15 defined the attorney work product privilege to 

16 encompass the deliberative process privilege. 

17 JUDGE SULLIVAN: Well, to some degree, 

18 they share, they share a goal. But the Sikorsky 

19 case talks very specifically about some 

20 differences. And I want to make sure that you 

21 understand that, if you're claiming the 

22 deliberative process privilege as identified in 

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1 the Sikorsky case, that you say so. And then we 

2 can walk through the different standards. 

3 If you're just saying that you're 

4 calling the work product privilege the 

5 deliberative process because that's easier for 

6 you, then we're going to learn why to enter the 

7 work product privilege and talk about whether or 

8 not you have established grounds for invoking it 

9 in this case. 

10 Because the Respondent's moving to 

11 compel you to provide certain information that 

12 has not been provided. And the respondent is 

13 saying that the information that you've redacted, 

14 in many instances, is disclosable in litigation. 

15 You're saying to me it's not, because 

16 of the deliberative process privilege. And it 

17 seems to me that we're either all talking about 

18 the attorney work product privilege. And if we 

19 are, then we have a discussion to have. 

20 But if we're not, and you're saying 

21 that you are invoking a privilege under the 

22 Executive Branch, like Sikorsky talks about, we 

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1 have a whole different discussion that we must 

2 have. 

3 MS. STOKLEY: Your Honor, I'm 

4 referring to the attorney work product privilege. 

5 JUDGE SULLIVAN: Okay, thank you. 

6 Thank you for that clarification. Then let's 

7 talk about is it --A, in the Respondent's motion 

8 to compel. And you've redacted a variety of 

9 different matters. It appears it lands squarely 

10 within factual information that is subject to 

11 disclosure upon request. 

12 So you've indicated that you've 

13 identified the nature of the violation that's 

14 been redacted on Page 5 of Exhibit A, including 

15 how safety was affected. And are you saying that 

16 you did that-by the language in your complaint or 

17 in some other manner? 

18 MS. STOKLEY: Your Honor, I just -- I 

19 put them on notice and provided this information 

20 by the language in the complaint. Additionally, 

21 the Agency has provided the Respondent with all 

22 the evidence that, if he is to make his 

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1 determinations in this case, that includes all 

2 the documents that we used to support our 

3 allegations. So they have everything we have. 

4 JUDGE SULLIVAN: So when you say all 

5 the documents, I'm still on Exhibit A, Page 5 of 

6 8, and on the top of Exhibit A, Page 5, it says 

7 supporting evidence. And then on next to 

8 bullet marks, it has a variety of different 

9 records listed. Is that the summary of the 

10 documentation you just referenced? 

11 MS. STOKLEY: Correct, Your Honor. 

12 JUDGE SULLIVAN: Okay. So did these 

13 documents include a statement of how the safety 

14 was affected? 

15 MS. STOKLEY: No, Your Honor. The 

16 Respondent has not- submitted an interrogatory· 

17 specifically asking how safety was affected. 

18 JUDGE SULLIVAN: Okay. Let's go to 

19 Page 6 of 8. And on the top of Page 6 of Exhibit 

2 0 A, to the Respondent's motion to compel, there 

21 was a blacked-out statement about whether the 

22 violation was inadvertent and not deliberate. 

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1 And all of that material is blacked-out. 

2 Are these facts that are 

3 uncontroverted that you're not disclosing? What 

4 is it that required you, in your opinion, to 

5 redact all of this? 

6 MS. STOKLEY: Your Honor, this 

7 information is pre-decisional recommendations by 

8 the reviewing inspector and the reporting 

9 inspector regarding their recommendations to the 

10 legal office on whether the violation was 

11 inadvertent or not deliberate. 

12 JUDGE SULLIVAN: I understand that's 

13 your position. so let's carry that one step 

14 further. Does the proposed sanction amount 

15 change depending on whether a violation is 

16 determined to be inadvertent versus deliberate? 

17 MS. STOKLEY: Well, I mean, it depends 

18 on a variety of factors that the Agency takes 

19 into consideration. So I can't just answer yes 

20 or no on that question. It's definitely a 

21 factual circumstance. There are aggregating and 

22 mitigating factors that the Agency takes into 

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1 consideration. 

2 JUDGE SULLIVAN: So it's possible? 

3 MS. STOKLEY: It is possible. 

4 JUDGE SULLIVAN: Would that also be 

5 true in looking at the attitude of the violator, 

6 the degree of hazard, and the action taken by 

7 employer that's listed and redacted on Exhibit A, 

8 Page 6? 

9 MS. STOKLEY: That is possible, Your 

10 Honor. 

11 JUDGE SULLIVAN: Okay. So all of 

12 these particular factors are things that the 

13 investigator who is doing the investigation looks 

14 at, reports on, and then is reviewed by the 

15 attorney for the FAA. And the attorney of the 

16 FAA may agree or disagree. 

17 MS. STOKLEY: Correct, Your Honor. 

18 JUDGE SULLIVAN: And if the attorney 

19 for the FAA disagrees, he or she can make a 

20 different recommendation and actually charge the 

21 Respondent with a charge that may be very 

22 different from what the investigator recommends. 

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1 MS. STOKLEY: It is a collaborative 

2 process, Your Honor. So there may be a 

3 discussion on why we disagree and, you know, 

4 before we issue a notice we agree internally and 

5 reach a conclusion. 

6 JUDGE SULLIVAN: But the ultimate 

7 decision is Counsel's, is it not? 

8 MS . STOKLEY: I am hesitant to say 

9 that, Your Honor. I think that it is a 

10 collaborative decision that is made. 

11 JUDGE SULLIVAN: Okay. Let's look at 

12 Page 7 of Exhibit A too, the Respondent's motion 

13 to compel. At the top of the page, again, 

14 there's a redaction for the use of certificate? 

15 What does that mean? 

16 MS. STOKLEY: It's how the Respondent 

17 is operating. The FAA has a variety of 

18 certificate programs that it oversees. 

19 JUDGE SULLIVAN: And so this would 

20 typically report the type of certificate that's 

21 being reviewed and reported on? 

22 

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MS. STOKLEY: Correct. 

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1 JUDGE SULLIVAN: Okay. And then in 

2 the following redactions on the same page, 

3 starting with "Multiple violations/acts, ability 

4 to absorb sanction," and so forth, ending with, 

5 "What corrective action has been taken," all of 

6 those particular categories also impact, 

7 potentially, the amount of the civil penalty 

8 that's proposed. Is that not correct? 

9 MS. STOKLEY: Yes, Your Honor, they 

10 potentially impact the civil penalty. 

11 JUDGE SULLIVAN: And these would be 

12 this is material reported by the investigator to 

13 the field office and others involved in the 

14 collaborative effort that you've described, that 

15 may or may not ultimately be adopted as part of 

16 the complaint. Is that correct? 

17 MS. STOKLEY: can you repeat that, 

18 Your Honor? 

19 JUDGE SULLIVAN: I'm not sure I can, 

20 but I will try. So the multiple violation/acts, 

21 the ability to absorb sanction, and the other 

22 matters that have been redacted on Page 7 of 

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1 Exhibit A at the Respondent's motion to compel, 

2 up to and including "What corrective action has 

3 been taken," those types of reports by the FAA 

4 inspector are provided to the field office and 

5 shared with others in the collaborative 

6 discussion that you just talked about, and may or 

7 may not be adopted ultimately for use by the 

8 prosecuting agent in the FAA in these kinds of 

9 cases? 

10 MS. STOKLEY: That is correct, Your 

11 Honor. 

12 JUDGE SULLIVAN: Would not all of 

13 these particular categories be utilized in 

14 calculating the proposed sanction? 

15 MS. STOKLEY: They may be, Your Honor. 

16 I mean, it depends on the factual circumstances 

17 of the specific case, yes. 

18 JUDGE SULLIVAN: So for example, if no 

19 correction action had been taken, that would not 

20 be included in any type of calculation? 

21 

22 

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MS. STOKLEY: Correct, Your Honor. 

JUDGE SULLIVAN: Okay. 

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Then let's 

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1 look at the other information that is redacted at 

2 the bottom of Page 7 of Exhibit A before we turn 

3 to Page 8. 

4 The reliability of evidence and 

5 conflicting evidence, I would understand that the 

6 reliability of evidence may be a subjective 

7 assessment by the inspector. Conflicting 

8 evidence, however, appears to be very fact9 oriented and potentially exculpatory for the 

10 Respondent. Why wouldn't that be fully 

11 disclosable as part of your discovery packet? 

12 MS . STOKLEY: Well, Your Honor, the 

13 conflicting evidence, that is also a subjective 

14 response. The is the pre-decisional, you know, 

15 recommendations by the inspecting investigating 

16 office on what they believe to be conflicting 

17 evidence. It is not just a factual assessment of 

18 the case. 

19 JUDGE SULLIVAN: And you don 1 t want to 

20 disclose that, because you don't want that part 

21 of the pre-decisional discussion to become a 

22 separate piece of evidence? 

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1 MS. STOKLEY: Correct, Your Honor. 

2 And it's pre-decisional. 

3 JUDGE SULLIVAN: So you argue . So 

4 let's go to Exhibit A, Page 8 of 8. And, folks, 

5 just so you know, I am watching the time, and I 

6 apologize for going over. But I think we're 

7 almost done for today. 

8 In terms of the top portion of the 

9 page, "Other mitigating, extenuating, or 

10 aggravating factors," why wouldn't that, in your 

11 opinion, be disclosable? Because does that not 

12 also enter into the calculation of the proposed 

13 civil penalty? 

14 MS. STOKLEY: Your Honor, these are 

15 the recommendations of the inspector and the 

16 inspector's reviewing official. And so these are 

17 not discoverable because they're it's 

18 privileged information. 

19 JUDGE SULLIVAN: How is it privileged 

20 if, in fact, it's information that could assist 

21 the Respondent in defending against a high 

22 proposed civil penalty? 

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1 MS. STOKLEY: It's privileged 

2 information because it's a pre-decisional 

3 recommendation that is provided in order to 

4 support, you know, potential litigation against 

5 this Respondent. 

6 Well, we provide the Respondent with 

7 all of the factual documentation and evidence 

8 that we use to make our conclusion. So they're 

9 provided with the same information that we had to 

10 form their own conclusions. 

11 JUDGE SULLIVAN: So essentially, this 

12 particular section would simply state what facts 

13 exist and how they could be utilized as 

14 mitigating, extenuating, or aggravating? 

15 MS. STOKLEY: Correct, Your Honor. 

16 JUDGE SULLIVAN: It never contains 

17 anything new or different from the facts that are 

18 contained in earlier sections that were not 

19 redacted? 

20 MS. STOKLEY: Repeat that question, 

21 Your Honor? I just want to make sure I'm 

22 understanding your question. 

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1 JUDGE SULLIVAN: This particular 

2 section never contains any new factual 

3 information? It simply regurgitates other facts 

4 that you always disclose in earlier portions of 

5 the EIR? 

6 MS. STOKLEY: Correct, Your Honor. 

7 And this information that is disclosed, that is 

8 disclosed once the EIR that we use for evidence. 

9 JUDGE SULLIVAN: Okay. Anything else 

10 that you would like to talk about in terms of 

11 Exhibit A to the Respondent's motion to compel? 

12 MS. STOKLEY: No, Your Honor. 

13 JUDGE SULLIVAN: Okay. I need to look 

14 at my calendar for just a moment. 

15 Mr. Wyborney, let me ask you this. 

16 You indicated that you had a letter dated August 

17 8th, 2016, that you would like to supplement and 

18 provide to the Court. I would like you to do 

19 that. When do you think you could present that 

20 to the Court? 

21 MR. WYBORNEY: Ma'am, I'm double 

22 checking my Exhibits. I believe that that letter 

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1 is Exhibit C. 

2 JUDGE SULLIVAN: Okay. Let me go to 

3 Exhibit c. 

4 MR. WYBORNEY: And I had misstated the 

5 date. It is August 9th, not August 8th. 

6 JUDGE SULLIVAN: Okay. Thank you. I 

7 do have that letter. And let me ask you about 

8 that letter. In essence, this letter points out 

9 a variety of different levels of dissatisfaction 

10 with the redaction that has occurred in the FAA's 

11 response to your request for discovery. In your 

12 request for discovery -- and I'm going to go to 

13 Exhibit A, Page 1 of the Respondent's motion. 

14 MR. WYBORNEY: Exhibit A, yes, Your 

15 Honor. 

16 JUDGE SULLIVAN: You're talking 

17 specifically about Interrogatory Number 4, as I 

18 understand it. 

19 MR. WYBORNEY: You've lost me just a 

20 little bit. 

21 JUDGE SULLIVAN: Well, let me try and 

22 shape this a little better. Ms. Stokley has said 

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1 that had the Respondent provided -- submitted an 

2 interrogatory to the FAA asking specifically 

3 about these questions, she would have responded. 

4 And what I'm asking you is, other than 

5 Interrogatory Number 4, which requests the 

6 identification and production of all documents, 

7 that's contained on Exhibit A, Page 1 of 8, the 

8 Respondent's motion, did you submit any separate 

9 interrogatory specifically asking about how the 

10 proposed civil penalty was calculated, and what 

11 factors were utilized, and how they were 

12 utilized. 

13 MR. WYBORNEY: Ma'am, there is no 

14 other document that has the title interrogatory. 

15 I did not submit another interrogatory. I 

16 thought that this letter dated August 9th, and 

17 that's Exhibit 9, would suffice for that. And 

18 because of that ultimate direction, I did not do 

19 another interrogatory. 

20 JUDGE SULLIVAN: Okay. 

21 thank you. That's very helpful. 

22 ask you a question. 

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All right, 

Folks, let me 

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1 We had a litigation procedural order 

2 issued on April 14, 2016, that appears to have 

3 been quite ambitious. We had some problems with 

4 the FAA responding timely to the timelines 

5 because of a change of Counsel, as the record 

6 reflects. 

7 We had some extension of litigation 

8 deadlines with this motion having been filed. 

9 And we have already gone past the deadlines for 

10 filing this dispositive motions which the parties 

11 have not been ready to do, because discovery is 

12 still in dispute, and on January 13, 2017, listed 

13 witnesses in exchange of exhibits with a March 1, 

14 2017, date for hearing. 

15 I'm wondering if the parties are going 

16 to be ready to do that if we still have discovery 

17 pending and may need to have some discovery still 

18 to be exchanged. 

19 Mr. Wyborney, turning to you, what's 

20 your client's position on potentially pushing out 

21 the trial date and resetting some dispositive 

22 motion dates? 

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1 MR. WYBORNEY: Ma'am, we can, if you 

2 think it would be better for the trial. I think 

3 that, if we can get access to these requested 

4 documents, that we can probably still make trial 

5 on time. However, if this goes much longer, more 

6 than January, I will need more time. 

7 JUDGE SULLIVAN: Okay. So there's 

8 still a possibility that we can meet the trial 

9 deadline? 

10 MR. WYBORNEY: Yes, Your Honor. 

ll JUDGE SULLIVAN: Okay. You had 

12 indicated you were hoping potentially to depose 

13 witnesses. And I would presume that you may not 

14 be able to depose witnesses if we maintain the 

15 March 1, 2017, deadline. But that's up to you, 

16 you know. I'm just trying to think of all those 

17 contingencies. 

18 Ms. Stokley, turning to you, what's 

19 your position about this particular schedule? Do 

20 you think you could still meet it if discovery is 

21 still pending? 

22 MS. STOKLEY: Your Honor, I thought 

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1 the industry is not against extending the 

2 deadlines. I think it'll be hard to meet, you 

3 know, these deadlines with discovery still 

4 pending. I think that we should resolve this 

5 issue. 

6 JUDGE SULLIVAN: Okay. Well, let's 

7 just keep the deadlines the way they are for now. 

8 And we'll check in with everybody about that. 

9 What I'm going to do is, I'm going to 

10 direct the Respondent to submit an interrogatory 

11 to the FAA specifically requesting .all the 

12 information that the FAA utilized to calculate 

13 the proposed civil penalty, specifically -- I 

14 don't want to dictate your request for you, Mr. 

15 Wyborney. 

16 But the civil penalty calculation 

17 should be fully disclosed by the FAA independent 

18 of the investigative report. And that civil 

19 penalty information should include, and is not 

20 limited to, almost every single category we 

21 talked about in the areas that were redacted by 

22 the FAA. 

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1 Now, the FAA certainly has a -- and 

2 maybe I could do it differently, because we're 

3 talking about a motion to compel. Give me a 

4 minute as I look at this material again. 

5 I think I can short change this, 

6 excuse me. Based on the materials that the 

7 parties have provided in the arguments that have 

8 been presented, I'm going to grant the 

9 Respondent's motion to compel discovery partially 

10 at this time. 

11 And I will direct the FAA to disclose 

12 to the Respondent, in detail, how the FAA 

13 calculated its proposed civil penalty, which is a 

14 total of-- have to do that right away-- $11,000 

15 on the violation that it alleges that the 

16 Respondent committed. 

17 And the calculation information that 

18 is disclosed by the FAA should include and 

19 address all factors in affecting the sanction 

20 which should be, and is not limited to, the 

21 nature of the violation, including how safety was 

22 affected, whether the violation was inadvertent 

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1 and not deliberate, the attitude of the 

2 Respondent as the alleged violator, the degree of 

3 hazard, the action taken by the employer or other 

4 authority regarding the alleged violation, the 

5 use of certificate. 

6 The FAA should also identify what, if 

7 any, decisional law it utilized in calculating 

8 and coming to the proposed civil penalty. 

9 It should identify whether or not it 

10 utilized multiple violations or acts in 

11 calculating the proposed civil penalty, as well 

12 as considering the Respondent's ability to absorb 

13 the sanction, whether the violation was 

14 voluntarily reported, and whether the Respondent 

15 took corrective action, and whether such action 

16 was included in the calculation of the penalty. 

17 If there were any mitigating, 

18 extenuating, or aggravating factors that the FAA 

19 took into consideration in calculating the 

2 0 proposed penalty, the FAA should say so and 

21 identify them specifically. 

22 The FAA should also identify any 

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1 exculpatory evidence it had in its possession, or 

2 does have in its possession at this time, that 

3 could be utilized by the Respondent in defending 

4 against the proposed civil penalty. 

5 When do you think you can get that 

6 information out, Ms. Stokley, to the Respondent? 

7 MS. STOKLEY: Your Honor, it's going 

8 to take some time for me to meet with the Drug 

9 Abatement Office and coordinate a response to 

10 that -- is this an order -- to your order? And 

11 so --

12 JUDGE SULLIVAN: Yes. I 'm directing 

13 you to provide this information. And it really 

14 is the kind of information that should be 

15 disclosed in any of these cases. 

16 MS. STOKLEY: Your Honor, I can 

17 provide those when -- I'm looking at my calendar 

18 -- by the week of the 16th of January. 

19 JUDGE SULLIVAN: Well, I'm looking at 

20 that calendar time as well. So the 16th is a 

21 holiday. Can you have this information provided 

22 to the Respondent by January 17, 2017? 

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1 MS. STOKLEY: Yes, Your Honor. 

2 JUDGE SULLIVAN: So noted. So as of 

3 -- on or before January 17, 2017, the Court is 

4 directing you to provide that information. The 

5 Court is denying the motion to compel, in part, 

6 for disclosure of the actual EIR. 

7 I would agree that, Ms. Stokley, that 

8 this particular information can be deemed as a 

9 work -- under the work product privilege, but it 

10 is disclosable in a different way, as the Court 

11 has directed it to be disclosed. 

12 As a result, I'm denying the 

13 Respondent's request for an on-camera review of 

14 the EIR. I don't think that's necessary. I'm 

15 also finding that the EIR is not fully 

16 disclosable simply because Mr. Wells was 

17 potentially identified as an expert witness and 

18 is now withdrawn. 

19 I understand what the Respondent's 

20 argument is about that, but I simply don't 

21 completely agree with the Respondent as to the 

22 scope of how much disclosure may be involved, 

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1 particularly when, in these types of cases, the 

2 expert has not been deposed and cannot be used by 

3 the requesting party in these kinds of action. 

4 In terms of the case itself, I need to 

5 check with the parties in terms of scheduling the 

6 hearing. We currently have a hearing that is set 

7 for March, I'm sorry, yes, February, I'm sorry, 

8 March 1, 2017. 

9 I'm running into a bit of a time 

10 crunch, because January 17, 2017, is less than 60 

11 days away from the hearing itself. And it's very 

12 short in time. So I need to get a courtroom 

13 reserved and travel arrangements made about 60 

14 days in advance. 

15 It may be, well, what I think I'll do 

16 is I'll try and reserve the courtroom now for 

17 Spokane. And I'll try and have all my travel 

18 arrangements done before the 24th, 25th. But I 

19 think we probably should have one last conference 

20 before the trial date just to make sure 

21 everybody's ready. 

22 

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1 JUDGE SULLIVAN: Yes, Mr. Wyborney? 

2 MR. WYBORNEY: Your Honor, when I was 

3 thinking that we might be able to get this 

4 information within a week or two, certainly 

5 before Christmas, by January, that probably is a 

6 little vague. When I said by January, I meant 

7 January 1st. 

8 January 17th makes me very concerned 

9 about the time involved. So I absolutely would 

10 not be opposed to moving the trial and the 

11 schedule back based on the January 17th date. 

12 JUDGE SULLIVAN: Okay. Ms. Stokley, 

13 what's your position about that? 

14 MS. STOKLEY: Your Honor, the Agency 

15 is okay with extending the deadlines for 

16 dispositive motions and pushing the date for the 

17 hearing. 

18 JUDGE SULLIVAN: Okay. Then why don't 

19 we do this. Why don't we schedule another 

20 conference right after January 17, 2017. We can 

21 talk about, at that time, whether there's going 

22 to be a need to depose any witnesses having 

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1 received the information from the FAA. 

2 We can also talk about whether the 

3 parties think that they want to move for summary 

4 judgement and if not, you know, when we want to 

5 schedule the hearing. 

6 And I have some time still available 

7 in mid-2017. And it might behoove us to just 

8 reserve something right now on our calendars as 

9 an alternative. 

10 So, Mr. Wyborney, how about if I ask 

11 you to take a look at your calendar for I'll 

12 get my calendar too -- so, say, the week of June 

13 18, 2017. Would that week work for you as a 

14 potential alternative? We don't need to say it's 

15 permanent, but I just want to reserve something 

16 in the event that we want to get back into the 

17 case as fast as possible. 

18 MR. WYBORNEY: Your Honor, you said 

19 June 17th, 2017? 

20 JUDGE SULLIVAN: I'm looking at June 

21 19 through the 23rd which is 2017. 

22 

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1 for a potential backup date, Your Honor. 

2 JUDGE SULLIVAN: Okay. Well, we're 

3 going use it as the potential alternative if we 

4 can't get into -- I think what we're doing is 

5 we're continuing it to a potential June date. 

6 And then I'm going to set a conference date at 

7 the end of January just to make sure it's still 

8 okay. 

9 MR. WYBORNEY: Yes, Your Honor. 

10 JUDGE SULLIVAN: Yes. Ms. Stokley, do 

11 you have the week of June 19th through the 23rd 

12 available? 

13 MS. STOKLEY: Yes, Your Honor. 

14 JUDGE SULLIVAN: Okay. Let's plan on 

15 that. That's June 19, 2017, through June 23rd, 

16 2017. That's our new reserved trial date. And 

17 then we can cancel the March 1 through March 2 of 

18 2017 date. 

19 And let's plan on having a conference 

20 in the week of January 30, 2017, which will give 

21 the Respondent about a week and a half to look at 

22 the discovery that they receive and make some 

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1 decisions about whether or not they're going to 

2 depose anybody and, if so, who. 

3 Mr. Wyborney, starting with you, is 

4 there any black-out date that you have the week 

5 of January 30th through February 3rd, 2017, for a 

6 one hour conference? 

7 MR. WYBORNEY: No, Your Honor. That 

8 week is available. 

9 JUDGE SULLIVAN: Ms. Stokley, same 

10 question to you. 

11 MS. STOKLEY: Yes, Your Honor. I have 

12 another hearing scheduled that week. And so I 

13 will be out from January 23rd until February 1st. 

14 JUDGE SULLIVAN: Okay. What about 

15 February 2nd, 2012? 

16 Well, that will be my first day back 

17 in the office. I just-- it's kind of hard. 

18 Would it be possible for us to do either the 19th 

19 of January or maybe the 3rd or the 6th of 

2 o February? 

21 JUDGE SULLIVAN: The 19th would not 

22 work. I don't want to do it in February. You're 

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1 starting on the 23rd. How about -- and we have 

2 Mr Wyborney in -- oh, and you're in Los Angeles. 

3 I could do Friday the 3rd. 

4 MS. STOKLEY: Okay, Friday the 3rd 

5 will work, Your Honor. 

6 JUDGE SULLIVAN: Okay. 

7 MR. WYBORNEY: That's works, Your 

8 Honor, yes, ma'am. 

9 JUDGE SULLIVAN: Great. Let's do 

10 Friday the 3rd of February. And both of you are 

11 out on the West Coast. so let's plan on 1 

12 o'clock Eastern Time, which would be 10:00 a.m. 

13 Pacific Time. 

14 And we'll do a one-hour conference, 

15 check-in with everybody, see whether you're ready 

16 to go for that June hearing. And if so, great. 

17 And we can reset the witness lists, and exhibit 

18 exchanges, and even talk about a dispositive 

19 motion, if that would work. 

20 So, Mr. Wyborney, you're the moving 

21 party in this. Is there anything else we need to 

22 address for your client today? 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
74 

1 MR. WYBORNEY: No, Your Honor. 

2 JUDGE SULLIVAN: Ms. Stokley, on 

3 behalf of your client, anything else we need to 

4 address for you? 

5 MS. STOKLEY: No, Your Honor. 

6 JUDGE SULLIVAN: Okay. Then I'm going 

7 to thank you all very much for your presence and 

8 for all your working materials. I am going to 

9 wish you a very happy holiday. I'll look forward 

10 to talking to you on February 3rd, 2017, at 1 

11 p.m. Eastern Time. And I'll issue an order that 

12 codifies, supports, oral rulings from today's 

13 conference. 

14 With that, we can go off the record, 

15 and I wish you all a good day. Thank you. 

16 (Whereupon, the_above-entitled matter 

17 went off the record at 3:07p.m.) 

18 

19 

20 

21 

22 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., NW. 

WASHINGTON, D.C. 20005-3701 (202) 234-4433 
A 

a.m 73:12 

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ability 24:12 53:3,21 

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above-entitled 74:16 

absolutely 69:9 

absorb 53:4,21 65:12 

access 24:18 62:3 

act 10:9 

acting 46:5 

action 36:11 51:6 53:5 

54:2,19 65:3,15,15 

68:3 

activities 43:22 

activity 43:14 

acts 65:10 

actual67:6 

addition 12:18 

additionally 10:7 48:20 

address 8:8 64:19 

73:22 74:4 

Administration 2:4 3:9 

Administrative 1:19 

adopted 53:15 54:7 

adoption 43:22 

advance68:14 

advisor 3: 18 

afoul18:8,21 

afternoon 3:20 

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40:4 41:20 44:1,12 

46:7 48:21 50:18,22 

69:14 

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agent54:8 

aggravating 56:10 

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aggregating 50:21 

agree32:3 38:12 51:16 

52:4 67:7,21 

air 15:17 

airborne 46:14 

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alcohol15:5, 16 

allegations 49:3 

alleged 65:2,4 

allegedly 33:5 

alleges 64:15 

allowed 10:15 21:19 

39:16 40:10,17 

alternate 32:6 

alternative 70:9,14 71:3 

ambitious 61:3 

AMERICA 1:1 

(202) 234-4433 

amount33:20 50:14 

53:7 

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answer 8:5,22 9:1 

16:20 40:15,16,22 

41:9 50:19 

answering 41:16,20 

anticipate 14:21 

anybody 72:2 

apologize 28:21 56:6 

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APPEARANCES 2:1 

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applying 12:22 

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asked 35:13,13,20 36:2 

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asking 14:3 16:22 20:4 

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asserting 41:11 

asserts 31:17 

assessment 55:7,17 

assist 56:20 

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attached 29:20 39:15 

attitude 36:9 51:5 65:1 

attorney3:11,18 6:16 

32:8,15 41:17 43:19 

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attorney-client 36:22 

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authored 22: 11 

authority 36:12 65:4 

available 26:15 27:3,22 

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beginning 10:812:18 

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29:5,9,12 30:16 37:12 

37:22 38:8,18 39:5 

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calculate 63:12 

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64:13 

Neal R. Gross and Co., Inc. 

Washington DC 

75 

calculating 54:14 65:7 

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calculation 34:16 54:20 

56:12 63:16 64:17 

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calendar 58:14 66:17 

66:20 70:11,12 

calendars 70:8 

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called 12:5 22:9,12 

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calling 9:2 18:5,17 47:4 

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certain 4:15 6:15 30:9 

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certainly 18:10 33:4,21 

34:20 35:6 64:1 69:4 

certificate 36:6,13 

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CFR23:2,5 

CFRs 23:1 

change50:15 61:5 64:5 

charge 51:20,21 

check5:10 42:12 45:3 

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check-in 73:15 

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53:7,10 56:13,22 

www.nealrgross.com 
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claimed 43:20 

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clarification 48:6 

clarify 12: 16 

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client's 39:17 61:20 

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20:3 22:11 

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collaborative 52: 1, 1 0 

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college 9:22 10:3,12 

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27:15 28:18 29:21,21 

30:20 36:18 38:15 

39:1547:1148:8 

49:20 52:13 54:1 

58:11 64:3,9 67:5 

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8:13 29:2 30:2 

complaint34:2 41:18 

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complete 5:4 27:14 

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completely 67:21 

compliance5:12 15:5 

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comply 16:13 

concealed 26:20 

concepts 16:2 

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concerned 69:8 

concerns 6:13 

condusion 52:5 57:8 

conclusions 57:10 

conducted 13:21 26: 18 

27:7 

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conference 3:7 6:10,18 

7:13 8:10 22:7 39:8 

(202) 234-4433 

39:12 68:19 69:20 

71:6,19 72:6 73:14 

74:13 

confidentiality 27:19 

28:14 

conflicting 55:5,7, 13,16 

confused 14:2,4 

conjunction 7:12 

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consideration 50:19 

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consortium 13:5 

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continue 23:7 29:6 

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correct 9:9 24:17 31:22 

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12:12 20:4 29:7,20 

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covered 32:7 33:10 

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dated 28:19 29:4,5 

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day72:16 74:15 

days6:111:968:11,14 

deadline 5:4 62:9,15 

deadlines4:15 30:9 

61:8,9 63:2,3,7 69:15 

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decided 42: 19 

decision 52:7,10 

decision-making 42:1 

decisional43: 14,22 

65:7 

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defending 56:21 66:3 

defense 13:4 

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36:10 46:17 51:6 65:2 

deliberate 36:5 49:22 

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deliberations 41:22 

deliberative 33:17 42:6 

43:12,20 44:10,19 

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depending 11:13 50:15 

depends 50: 17 54: 16 

depose38:8 62:12,14 

69:22 72:2 

deposed 38:5 68:2 

deposition 26:17 38:10 

depth 44:15 

described 53:14 

designated 7:3 9:4 

detail42:16 64:12 

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determinations 49: 1 

determine 1 0:6 

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dictate 63:14 

Neal R. Gross and Co., Inc. 

Washington DC 

difference 43:18 

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76 

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discussed 6:12 27:5 

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32:9 47:19 48:1 52:3 

54:6 55:21 

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69:16 73:18 

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dissatisfaction 5:18 

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57:7 

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16:1,3 21:1129:4 

30:4 49:2,5,13 60:6 

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www.nealrgross.com 
77 

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double 5:10 42:12 45:3 Executive 47:22 59:10 12:16 13:10 

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(202) 234-4433 Washington DC www.nealrgross.com 
78 

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(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC www.nealrgross.com 
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Neal R. Gross and Co., Inc. 

Washington DC www.nealrgross.com 
83 

C E R T I F I C A T E 

This is to certify that the foregoing transcript 

In the matter of: Felts Field Aviation 

Before: US DOT/OH 

Date: 12-15-16 

Place: teleconference 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

Court Reporter 

(202) 2344433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com