### SERVED: February23, 2017


### U.S. DEPARTMENT OF TRANSPORTATI01iJEPARTMENT 

## OF OFFICE OF HEARINGS 

### TRANSPORTATION WASHINGTON, DC 

## p " 

## OO 

# zan FEB 2**~** 

## ...= In The Matter Of: ) 

### DOCKET OPERATIONS Docket No. FAA-2015-3307 FELTS FIELD AVIATION ) ) ) ) Case No. 2015WP910090 Respondent

ORDER GRANTING IN PART AND DENYING IN PART
THE RESPONDENT'S MOTION
FORPRECLUSION OF CERTAINEVIDENCE

On December 15, 2016, the parties convened by telephone for a continued Motion Conference, and presented arguments onthe Respondent's September 16, 2016 Motion to Compel. This Court then made immediate oral rulings on the Motion. These oral rulings are contained in the December 15, 2016 transcript oftheMotion Conference. Among otherthings, after consultation with the FAA about its calendar availability, the FAA was directed to provide certain fact and opinion evidence to the Respondent, on orbefore January 17, 2017. (Dec. 15, 2016 Tr. 66:21-67:4.)
On January 26, 2017, an Order Granting in Part and Denying in Partthe Respondent's Motion to Compel was filed. This January 26, 2017 Order codified and supplemented the oral rulings contained in the December 15, 2016 transcript ofthe Motion Conference. 1
That same day, onJanuary 26, 2017, the FAA filed withthe Office ofHearings the Complainant's Calculation oftheProposed Civil Penalty ("Calculation").
On January 31, 2017, the Respondent filed a Motionto Dismiss, Supplemental Brief ("Supplemental Brief'). In this January 31, 2017 Supplemental Brief, the Respondent amended

1The January 26,2017 Order erroneously**re~c:;,~ to** **tqNril'ilss~jphofthe** December 15,2016 Motion Conference as the December 1§., 2016 transcript. (Jan. 26, Order, 2 and 14·,jJ.)This was a clerical error. The correct date is December**1~,** 2016.its previously filed January 17, 2017 Motion to Dismiss by adding an alternate request for relief; specifically, to preclude the admission ofcertain FAA evidence ("Motion to Preclude"), pursuant to 14 C.F.R. § 13.220(n)(3).
On February 3, 2017, the parties appeared bytelephone for a Scheduling Conference. During this Conference, the FAA was advised thatthe Respondent had included an alternate motion in its Supplemental Brief. The FAA was provided a February 10, 2017 deadline to file its written Response to the Respondent's January 31, 2017 Motionto Preclude. The Court issued an oral ruling on the Respondent's Motion to Dismiss, and the parties were directed to reappear by telephone on Wednesday, February

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### ..**-~~.f~u.~t.\** Scheduling Conference. ' · ' · OnFebruary 6, 2017, an Order Denying the Respondent's Motionto Dismiss and Reserving the Respondent's Alternate Motion for Preclusion ofEvidence was filed.
On February 10, 2017, the FAA filed the Complainant's Opposition to Respondent's Motion for Preclusion ofEvidence ("Opposition").
On February 15, 2017, at 1:30 p.m. Eastern time, the parties appeared by telephone for the Motion and Scheduling Conference ("Conference"). During this Conference, the parties presented oral argument on the Respondent's Motionto Preclude. The parties also discussed and scheduled other pending litigation matters. This written Order codifies and supplements the oral rulings on the Motion to Preclude, which are contained in the February 15, 2017 Conference transcript.


## ·. -.:**Li~··}·\\'{.i.A~:?;',J** Overview ofRespondent's Motion and'the FAA Opposition A.
In its January 31, 2017 Motion to Preclude, the Respondent asserts thatthe FAA failed to comply with this Court's December 15, 2016 Order, which directed the FAAto disclose, on or before January 17, 2017, specific fact and opinion evidence regarding its calculation ofthe proposed $11,000 civil penalty. (Suppl. Br., 4; Dec. 15,2016Tr. 64:11-67:6; January 26,2017 Order, 14 

### ,-r 1.) The Respondent seeks to preclude "the admission ofthe EIR, and any
Page 2 ofl2information that stems from it" (Suppl. Br., 8) pursuant to 14 C.F.R. 

### § 13.220(n) ofthe FAA's Rules ofPractice, 14 C.F.R. Part 13, Subpart G.

. ... ·, ./**~.. ~**  ....:..**L~~**{. : In its February 10, 2017

### Opppr~Hon;:tlle'f~'.first asserts that this Court "interpreted"the Respondent's January 31, 2017 Supplemental Briefto include an alternate Motion (Opp'n,. 2.) The FAAthen asserts that eventhough itmaynothave providedthe information with "headings" such "as Respondent suggest[s]," it nevertheless complied withthe requirements of 14 C.F.R. §13.220(n). (/d.)


### B. Respondent's January 31, 2017 Motion to Preclude - Clearly Stated
Given the FAA's written assertion that the Respondent's Motion to Preclude was somehow createdbythis Court's "interpretation" ofthe Respondent's January 31, 2017 Supplemental Brief(Opp. 2), itis necessary to point outthatthe Respondent's January 31,2017 Supplemental Briefclearly included an alternate request for relief:
In the alternative, as the FAA has failed to timely produce discoverable information from the EIRthat it is Ordered**[~ic]** to produce, pursuant to 14 C.F.R. §13.220(n)(3), the**Respondel'!q¢,sp¢:~,fgl_l.).:\~b;ves** this Courtto preclude the admission ofthe EIR, and any**~information~**that stems from it. (Suppl. Br., 7-8.
The record also reflects that during the February 3, 2017 Conference, this Court advised the FAA thatthe Respondent's Supplemental Briefcontained an alternate request for preclusion reliefthathad notbeen included inthe Respondent's earlier September 16, 2016 Motionto Compel. (Feb. 3, 2017 Tr. 8:1-10.) In addition, the Court offered the FAA an opportunityto file
a written response before ruling on the preclusion request. (/d. at 8: 15-21; Feb. 6, 2017 Order, 4

, 3.)
Based onthe record, the FAA's assertion that the Court "interpreted"the Respondent's Supplemental Briefto include a motionto preclude evidence is without merit.

I • • t. j d

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## ,{:fm**~~~\1!~:h:,v;l~i·** Page 3 of12

### C. December 15, 2016 Order Compelling Discovery During the December 15, 2016 Motion Conference, the Court and the parties discussed the general type offacts the FAA likely utilized to support the FAA's calculation ofthe $11,000 proposed civil penalty, which the FAAmight need to disclose. As part ofthis discussion, the Court and the parties repeatedly and specifically referenced the FAA'sEnforcement Investigation Report ("EIR") factor headings (Mot. Ex. A). (See Dec. 15, 2017 Tr. 32:10-37:18, 38:13-39:20, and 49:6-55: 11.)
At the conclusion ofthe

### December'1s:~2p16~qonference, after considering the ·!}: ::.**-~;(;~.f·~·~~~;:::f>:v·/~·;** ·.· Respondent's September 16, 2016 Motion to Cornpel and all subsequent materials filed by both parties,2 the Court denied the Respondent's motion to disclose the redacted portions ofthe EIR, because the EIR itselfwas a compilation ofpreliminary investigative work that was protected by work product privilege. (Dec. 15, 2016 Tr.**67:4~68:3).** However, the FAA was specifically ordered to disclose the fact and opinion evidence that it ultimately utilized to support the allegations it made against the Respondent in its charging document, the Complaint: [JUDGE SULLIVAN] And I will direct the FAA to disclose to the Respondent, in detail, howthe FAA calculated its proposed civil penalty

...-- $11,000 on the violation that it alleges thatthe Respondent committed. And the calculation information that is disclosed by the FAA should include and address all factors in affecting the sanction which should be, and is not limited to, the nature of**th~ .1Jioi~~1~~** **.**in9{1:1Ping how safety was affected, whetherthe violation was**in~(hr.¢rterit~d··nofdeliberate,** the attitude ofthe Respondent as the alleged violator, the degree ofhazard, the action taken by the employer or other authority regarding the alleged violation, the use ofcertificate. The FAA should also identify what, ifany, decisional lawit utilized in calculating and coming to the proposed civil penalty. It should identify whether ornot it utilized multiple violations or acts in calculating the proposed civil penalty, as well as consideringthe Respondent's

2 The January 26,2017 Order contains a full list ofthe parties' filed materials (dating from the Respondent's September 16, 2016 Motion to Compel through December 8, 2016) and is hereby incorporated by reference. Page 4 of12ability to absorb the sanction, whether the violation was voluntarily reported, and whetherthe Respondent took corrective action, and whether such action was included in the calculation of'thepenalty.**-:~·1.:'** Ifthere were any mitigating/1 e"Xt&lraating, oraggravating factors that the FAAtook into consideration in calculatingthe proposed penalty, the FAA should say so and identifythem specifically. The FAA should also identify any exculpatory evidence it had in its possession, or does have in its possession at this time, that could be utilized bythe Respondent in defending against the proposed civil penalty.
Dec. 15,2016 Tr. 64:11-66:4. Approximatelythirty (30) days later, on January 17, 2017, the FAA served the Respondent with its Calculation.3 The FAAprovided a general narrative explanation in its Calculation, with two specific references to pages in FAA Order 2150.38, Chapter 7. The general narrative did not reference eitherthe specifically identified topics ordered to be addressed by the Court, orthe FAA's EIR factor headings. Fourteen (14) days later, on January 31, 2017, the Respondent filed its**Suppleme11~al B~ief,**  in which it moved for preclusion ofall

,**~:** :t:**~~dan·;·~~** .. ;·;_., t EIR and EIR-related evidence.**~·**.· r.1**':·t·';~'ri4,:J, ;:;(** **~-** (

# . D. Discussion
As part ofits arguments, the Respondent asserts thatthe FAA's Calculation failed to provide, as it was specifically directed by the Court, "substantive" information orevidence regarding multiple sanction factors. (Suppl. Br., 6-7.) The Respondent asserted that the sanction

3 Nine (9) days later, on January 26,2017, the FAA filed its Calculation with the Court. During the February 3, 2017 Conference, the FAA asserted that it had attempted multiple times to fax its Calculation to the Court on January 17, 2017. On February 10,2017the FAA filed proofthaton January 17,2017it attempted once to fax its Calculation to the Court at the following number: "202-366-67536'' (Opp'n, Attach. 1, 6) (emphasis added). This attempt was unsuccessful, based on a "no answer" fax response for that number. (I d.) It should be noted, therefore, that the numberthe FAA utilized was incorrect on its face, since it contained five numerals at the end ofthe address (i.e., "67536") instead ofthe standard four numerals (e.g., "7536"). The number utilized bythe FAA was not in conformance with a ten-digit domestic fax number, and was**n~t** the Court's fax address. After receiving a "no answer" fax response on January 17, 2017,**th~** :f:AA1 :tf.\9l<.n.o 't'u 1hher action to ensure that it filed its Calculation with the Courtthat same day. ;: i }:·

. •.".

.. Page 5 of 12ofevidence preclusion (14 C.F.R. § 13.220(n)) should be imposed,4 for the FAA's failure to substantially comply with the Court's December 15, 2016 discovery order. (Suppl. Br., 7-8; Feb. 15, 2017 Tr.

# _l In its Opposition, the FAA generally disagrees, asserting that ithadprovided all the informationthat it was required

# to disclose pursuant to 14 C.F.R. §13.220(n). (Opp'n., 2.)
1. OverviewofF AA Order2150.3B
FAA Order2150.3B became effective on October I, 2007. 

### It is a voluminous compilation ofthe "policies, procedures,**and,~uid~Jines** for the [FAA's] compliance and rtil·**\··~~~~r-,**.. · ..**·~:J\·:ru** enforcementprogram." FAA Order**~~~.0.3B.i G9Y~!** **Page.** Since October 1, 2007,multiple \

.**~** . ' .**-~** . . . changes to FAA Order 2150.3B have been adopted, and newappendixes have been added. 

### See, e.g., FAA Order2150.3B CHG 11, 2/24/16). 

### It is a complex document, and is often challenging for individuals to understand and apply, even when such individuals are familiar withthe FAA's sanction enforcementprogram. In essence, when the FAA investigates and subsequently alleges a safetyregulatory violation against an entity oran individual, the FAApersonnel utilize material in FAA Order 2150.3B, and "analyze whether each ofthefactors in Chapter 7, paragraph 4 orAppendix Cis relevant and applies to the case." FAA Order2150.3B, 8-2 (b)(2). Pursuant to FAA Order 2150.3B, Chapters 2 and 7, the FAA's determination ofa sanction is notthe result ofa mathematical calculation. Instead, it is the result ofa subjective evaluation and weighting of multiple factors (FAA Order2150.3B, Ch. 7-1 and 4 (a)-(m)), which often involvesjointreview

to • ....... and consideration ofindividual case

### ~r;~~~~~~~~~t.FAApersonnel, afterthe initial investigation is complete. FAA Order2150.3'B,

### ·ttL·2-3(i)

- 4(a)-(e).
To assist FAAinvestigative and/or chargingpersonnel in determining what civil penalty assessmentto propose in compliance with FAA Order 2150.3B, the FAA's EIR specifically identifies byheading the major factors that FAA personnel should consider as they review all the

4 The Respondent's renewed Motion to Dismiss (Supp. Brief, 7) was denied. Feb. 6, 2017 OrderDenyingthe Respondent's Motion to Dismiss and Reserving the Respondent's Alternate Motion for Preclusion ofEvidence.

5 This Order was issued priorto receipt ofthe February 15,2017Conference Transcript, sopage citations to the Transcript are not available. Page 6 of12

f t 'i.

### .~.**'i4ftt•1··.;3i\i)~,:** '.:(;**r~.** 

### ( ::n:\:**~:~r; .~>.** facts and circumstances ofan

### individli~~**ca~,c·J;ipclullir.g:** 1) the nature ofthe violation (including how safety was affected); 2)

## whetherth~**vi6i~ii6k.:\v~s** inadvertent and not deliberate; 3) the certificate holder's level ofexperience and responsibility; 4) the attitude ofthe violator; 5) the degree ofhazard; 6) the action taken by the employer or other authority; 7) the use ofcertificate; 8) the violation history; 9) decisional law; 8) multiple violations/acts; 9) the alleged violator's ability to absorb the sanction; 1 0) the consistency ofthe type ofsanction; 11) whether the violation was reported voluntarily; and, 11) what, ifany, corrective action taken by the alleged violator. FAA Order 2150.3B, Chapters 7 and 8; Sept. 16,2016 Motion, Ex. A, 5-7. Some of these factors will be weighed more heavily, while others may not be relevant or applicable. In addition, the FAA is supposed to utilize the guidance in Chapter 7 to consider other factors, as well as to determine ifthere are any mitigating, extenuating, or aggravating factors. FAA Order 2150.3B, 8-2, (b)(2).
2. The FAA's January 17, 2017 Calculation and Arguments I I II \l•,{"';'h ,,.,1Jdf1 Itwas undisputed that the FAA

# ~erve'dthe**R~~pondent** with its Calculation on January 17, 2017. However, this Calculation did not identify fact information as specifically identified by the Court when it issued its December 15, 2016 ruling, orconsistent with the EIRheading format. Instead, the FAA provided a general narrative explanation, withtwo specific references to pages in FAA Order 2150.3B, Chapter 7.
In its Opposition to the Respondent's Motion for Preclusion, the FAAprimarily asserted that it "clearly articulate[d),"pursuant to 14 C.F.R. § 13.220(n), all the "facts and circumstances" it considered in calculating the proposed civil penalty of$11,000 (Opp'n, 4). Itargued that it had fully addressed all the Court-ordered factors. (!d.) However, upon court inquiry during the February 15, 2017 Motion Conference, the FAA was unable to show where in its Calculation many ofthose factors were discussed. (Feb. 15, 2017 Tr. __).**•,~** • •
. It •k During the oral argument on Februlif.'Yi1S, 20/P?, the FAA argued that the Court's December 15, 2017 rulings were confusing, andtherefo:t;e any error(s) or omissions in its Calculation should be excused. Italso asserted certain factors had been omitted because the
Page 7 of12information was privileged--despite the Court's December 15,2016ruling that such information
was not privileged and must be disclosed. The FAA then asked for more time and another opportunity to comply withthe Court's December 15, 2016 directives. It also argued that the general narrative it had provided had notprejudiced the Respondent. (Opp'n, 4.) The FAA did not, however, acknowledge the multiple problems associated with non-compliance with a Court order, orthe limited time that existed priorto the reserved hearing dates. Nordid the FAA recognize the history ofthe Respondent's repeated attempts to obtain the discovery (dating back to October 13, 2015), and the time al]9**,t;no~~y: c?s~s\~associated**  with such attempts
.

. ••. , ,,, :··. 1 •. ,...,lvJ,, 3. Purpose ofSanctions
Itis well-established in federal litigationpractice that a court has broad discretion to impose discovery sanctions, either for violation ofdiscoveryrules ororders, orunder the court's inherent powerto prevent abuse ofthejudicial process. Fed. R. Civ. P. 26(a), 37(c); 33 Am. Jur. Proof of Facts 3d459 (Dec. 2015); Phelps v. Wyeth, Inc., 280 F.R.D. 572 (D. Or. 2012). This may include sanctioning a party who violates court orders designed to enablejudges to control their dockets and manage the flow oflitigation. 33 Am. Jur. Proof of Facts 3d459 

### § 6 (Dec. 2015); Goldstein v. Co/borneAcquision Co

.. LLC, 873 F. Supp. 2d 932 (N.D. Ill. 2012); Mya Saray, LLCv. Al-Amir, 831 F. Supp. 2d 922 (E.D. Va. 2011).
The purpose for imposing sanctions is multifold: I) to punish a party for improper discovery orother conduct and assure that it will not profit from it; 2) to compensate the other

,. •• 1.: )·**:-.::":t:'-~··** party(s) for the expense and/or difficuJf:i'es CaUsed·.fi)Hany impropriety; 3) to specifically deter the offending party from future misconduct, and secure its compliance with a particular court order and/or other litigation duties; and, 4) to generally deter others from engaging in litigation abuses. 33 Am. Jur. Proof of Facts 3d459 

### § 1 (Dec. 2015).
4. Preclusion ofCertain Evidence is Warranted
As noted by this Court during the February 15, 2017 Conference, the FAA'sEIR headings identify the primary factors that FAApersonnel are supposed to consider, pursuant to FAA Order 2150.3B, Chapter 7, in calculating a proposed civil penalty. The December 15, 2016 Page 8 of12order directed the FAA to disclose

## th~**f~ct~ii#a ·o~ihions**  it ultimately utilized in support ofits**~** . charging decision to propose an $11,000 civil penalty. The Court's order specifically followed and repeated the FAA's ownEIR factor headings, to describe what fact and opinion evidence the FAA needed to disclose. Nevertheless, the FAA chose to craft its Calculation in a mannerthat did not repeat or reference eitherthe Court's identified factors (Dec. 15, 2016 Tr. 64: 11-66:4), or its own EIR headings format (Mot., Ex. A).
The FAA's assertion that it had "clearly" addressed all the factors ordered bythe Court
was not persuasive. Underlying the FAA's "clear articulation" argument was the presumption that the FAA did not need to reference the factors identified by the Court (or as clearly delineated in its own EIR format). Instead, according to the FAA's argument, both the Court and the Respondent were responsible to parse through the FAA's narrative Calculation and compare it to the Court's December 15, 2016 ruling, to determine whether ornot the FAA actually complied and disclosed the**Court-ordyr~d** i!lf?matJon. This type ofpresumption by the FAA is

. Li <; ;_:IJt.! OfH1W not reasonable. A party who is directed to comply with a Court order has a basic obligation to demonstrate its compliance with the Court's directive(s).
In reviewing the FAA's Calculation, it is clearthatthe FAA omitted from its Calculation multiple factors thatthe Court specifically ordered the FAA to address. Thus, the FAA's narrative Calculation fell noticeably short ofcomplying with the Court's December 15,2016 ruling.
A fundamental cornerstone oflitigation practice is that a partymust comply with a Court order, even when thatparty may disagree with the ruling. The FAA has proffered no reasonable explanation for its partial noncompliance withthe Court's ruling. In the instant case, at this stage ofthe proceeding, it is unfair to demand that the Respondent wait any further for production of Court-ordered discovery evidence that remains undisclosed. 6 The litigation dates in this case 

## ·'**.:·;~** 

## l:f•t\;:1

### ~.-.-:iun 6 For example, not inclusive, the record herejn**d~mdn-~trates the'Respondent**  served the FAA on October 13,2015 with discovery requests, which included general requests for how the proposed sanction was calculated. (July l, 2016 Resp. Mot. Dismiss, Ex. A.) Subsequently, the FAA delayed discovery and failed to appear for a court-ordered conference. The FAA is correctthat some ofthese events occurred before the July 2016 substitution ofFAA counsel. (Opp'n, 4.) However, as the Respondent noted, there was still a negative impact on the Respondent's time Page 9 of12have already been extended, cancelled, and reset multiple times. 7 The hearing in this case has also been cancelled and reset,8 and is now scheduled to commence onJune 20,2017, in Spokane, Washington
The preclusion sanction requested by the Respondent should be partially granted. General discovery should be closed, so that the parties may prepare for both summaryjudgment motions and the hearing. The Respondent should also be relieved from spending any further ·' '**>~** ;.,:**~··-** ;:•;..·'

. ;·,
..**'h.~/~.** effort and money arguing for**additio~~ili,dis·c~"<?~~~~~** ..**~Urther,** the FAA should not be able to "profit" from partial disclosure, by being allowed to introduce into evidence on its own behalf any factor informationthat it did not disclose in its Calculation. However, it is undisputed that the FAA did provide certain factor information in its Calculation. As result, the Respondent's request to preclude "any information that stems from [the EIR]" (Suppl. Br., 7-8), is not proportional to the FAA'spartial non-compliance. The sanction ofpreclusion should only address that portion ofthe evidence that the FAA failed to disclose after ordered by the Court.
The FAA failed to address the following Court-ordered factors in its Calculation: 1) whether the violation was deliberate;9 2) the attitude ofthe Respondent as the alleged violator; 3) the action taken by the employer or other authority regarding the alleged violation; 4) the

and litigation costs
..(Mot., 7; Suppl. Br.,**1-4);.~?- S~f>tf,l!lb~rU;~;;20**  16 (i.e., eleven**(II~** months after serving its October 13,2015 discovery requests), the**R~sp_qnden,t~~Jh<:TI,llio** Compel strongly reiterated a request for information about what factors were included in the calculation ofthe proposed civil penalty. On November 10, 2016, the Courtprovided resources and information to both parties about what information was protected bythe attorney work productprivilege. (See Nov. 10,2016 Tr.; Nov. 14,2016 Order.) Thereafter, the parties filed more motion materials, and then reconvened on December 15, 2016 for final oral argument on the dispute. That same day, December 15,2016, the Court granted in part the Respondent's Motion, and provided the FAA thirty (30) days to provide the court-ordered discovery.

7 See July 14, 2016 Order Extending Certain Litigation Deadlines; Nov. 14,2016 Order Continuing the Motion Conference, Cancelling the Summary Judgment Conference, and Granting/Denying Other Relief; Feb. 16, 2017 Order Amending the Litigation Schedule.

8 See Jan. 26, 2017 Order Granting in Part and Denying in Partthe Respondent's Motion to Compel, 14**~** 3.

9 The FAA asserted in its Calculation that the violation was "careless", which may be inferred to encompass the factor ofinadvertence.
Page 10 oflZdecisional law, ifany, it utilized; 10

# 5~**t~~ R~~{;ri.~JY-~~'s**  ability to absorb the sanction; 6) whether the violation was voluntarily reported; 7) whether the Respondent took corrective action; 8) whether it considered any mitigating orextenuating factors; 11 and, 9) whether it had any exculpatory evidence that could be utilized by the Respondent in defending against the proposed civil penalty.
The FAA should be precluded from introducing any evidence in this case that it had information about, or considered, these nine (9) omitted factors, in its assessment ofthe case and calculation ofthe proposed civil penalty.


### E. Conclusion
Pursuant to 14 C.F.R. § 13.220(n), and having reviewed the case file, all pleadings and motions, all relevant caselaw, statutes, regulations, rules, and authority, and being fully advised; 

### IT IS HEREBY ORDERED:
1. The Respondent's Motion to Preclude Evidence is partially granted.
2. The FAA is precluded from introducing any evidence in this case that it had information about, orconsidered, the following nine (9) factors in its assessment ofthe case and calculation ofthe proposed $11,000 civil penalty: 1) whetherthe violation was deliberate; 2) the attitude ofthe Respondent as the alleged violator; 3) the action taken by the employer or other authority regarding the alleged violation; 4) the decisional law, ifany, it utilized; 5) the Respondent's ability to absorb the sanction; 6) whetherthe violation was voluntarily reported; 7) whether the Respondent took corrective action; 8) whether it considered any mitigating or extenuating factors; and, 9) whether it had and utilized any exculpatory evidence on behalfofthe Respondent.

10 During the February 15, 2017 oral argument, the FAA argued that it had not disclosed this information on the grounds that decisional law was a "legal**theoo/;J;(,and.~~1Wr~e.f,$?.~~.;»'as** protected**unde~** the work productprivilege. The FAA was reminded that it had been ordered tmDecernBer 1:5,'2016 toprovide the mformation. The FAA was also re-a.dvised that "legal theories" were disclosable in federal civil litigation. Feb. 15,2017Tr. _;seealso, Jan. 26, 2017 Order, 6-7**~D.**
11 The FAA did include in its Calculation information about aggravating factors it considered. Page 11 of123. The Respondent's Motion to Preclude Evidence, in which it requested preclusion ofthe entire EIR, is denied. The FAA may utilize in its case presentationthe un-redacted portions ofthe EIR which were previously disclosed to the Respondent.

4. Ifeither party needs clarification orhas any questions regarding the procedures contained in this Order, contact Ms. Kelly Ort, Judicial StaffAssistant, at the Office of Hearings (202-366-5121).

Attachment: Service List

':·: !r .•,; I

### \··~'t'.::~''';t

## ;,

Page 12 of12

:**~.\** ·.

' ;

.·:·Docket No. FAA-2015-3307 (Civil Penalty Action)



### SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W1000 1

Ms. Fatimah Stokley 

### Complainant's Counsel Federal Aviation Administration Enforcement Division- Western Team P.O. Box 920007 Los Angeles, CA 90009-2007 TEL: 310-725-7112 FPCX: 310-725-6816 Mr. Mark J. Conlin Mr. Benjamin L. Wyborney 

### Respondent's Counsel Conlin, Maloney & Miller 421 W. Riverside Ave., Suite 911 Spokane, W A 99201 TEL: 509-624-3020 FPCX: 509-623-1650
Judge J.E. Sullivan 

### US. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation ONE COPY

1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-5121 FPCX: 202-366-7536

1Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.