SERVED: February 23, 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 

FOR PRECLUSION OF CERTAIN EVIDENCE 

On December 15, 2016, the parties convened by telephone for a continued Motion 

Conference, and presented arguments on the 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 ofthe Motion Conference. Among other things, 

after consultation with the FAA about its calendar availability, the FAA was directed to provide 

certain fact and opinion evidence to the Respondent, on or before January 17, 2017. (Dec. 15, 

2016 Tr. 66:21-67:4.) 

On January 26, 2017, an Order Granting in Part and Denying in Part the 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, on January 26, 2017, the FAA filed with the Office of Hearings the 

Complainant's Calculation ofthe Proposed Civil Penalty ("Calculation"). 

On January 31, 2017, the Respondent filed a Motion to Dismiss, Supplemental Brief 

("Supplemental Brief'). In this January 31, 2017 Supplemental Brief, the Respondent amended 

1 The 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 of certain FAA evidence ("Motion to Preclude"), pursuant 

to 14 C.F.R. § 13.220(n)(3). 

On February 3, 2017, the parties appeared by telephone for a Scheduling Conference. 

During this Conference, the FAA was advised that the 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 Motion to 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 1,~,.zoi.7, .~t tdO~p.m. Eastern time for a Motion and . ~ ;.\~:' ,.irr ... ~.~(0l .. -~~.f~u.~t.\ 

Scheduling Conference. ' · ' · 

On February 6, 2017, an Order Denying the Respondent's Motion to Dismiss and 

Reserving the Respondent's Alternate Motion for Preclusion of Evidence was filed. 

On February 10, 2017, the FAA filed the Complainant's Opposition to Respondent's 

Motion for Preclusion of Evidence ("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 Motion to 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 

A. Overview of Respondent's Motion and'the FAA Opposition 

In its January 31, 2017 Motion to Preclude, the Respondent asserts that the FAA failed to 

comply with this Court's December 15, 2016 Order, which directed the FAA to disclose, on or 

before January 17, 2017, specific fact and opinion evidence regarding its calculation of the 

proposed $11,000 civil penalty. (Suppl. Br., 4; Dec. 15,2016 Tr. 64:11-67:6; January 26,2017 

Order, 14 ,-r 1.) The Respondent seeks to preclude "the admission of the EIR, and any 

Page 2 ofl2 
information that stems from it" (Suppl. Br., 8) pursuant to 14 C.F.R. § 13.220(n) of the FAA's 

Rules of Practice, 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 Brief to include an alternate Motion (Opp'n,. 2.) 

The FAA then asserts that even though it may not have provided the information with 

"headings" such "as Respondent suggest[s]," it nevertheless complied with the 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 created by this Court's "interpretation" of the Respondent's January 31, 2017 

Supplemental Brief(Opp. 2), it is necessary to point out that the Respondent's January 31,2017 

Supplemental Brief clearly included an alternate request for relief: 

In the alternative, as the FAA has failed to timely produce discoverable 

information from the EIR that 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 Court to preclude the 

admission of the 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 that the Respondent's Supplemental Brief contained an alternate request for preclusion 

relief that had not been included in the Respondent's earlier September 16, 2016 Motion to 

Compel. (Feb. 3, 2017 Tr. 8:1-10.) In addition, the Court offered the FAA an opportunity to file 

a written response before ruling on the preclusion request. (/d. at 8: 15-21; Feb. 6, 2017 Order, 4 

, 3.) 

Based on the record, the FAA's assertion that the Court "interpreted" the Respondent's 

Supplemental Brief to include a motion to preclude evidence is without merit. 

I • • t. j d . L~il 

,{: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 of facts the FAA likely utilized to support the FAA's calculation of the $11,000 

proposed civil penalty, which the FAA might need to disclose. As part of this discussion, the 

Court and the parties repeatedly and specifically referenced the FAA's Enforcement 

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 of the 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 itself was a compilation of preliminary 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, how the FAA calculated its proposed civil penalty ... --

$11,000 on the violation that it alleges that the 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, 

whether the violation was in~(hr.¢rterit~d··nofdeliberate, the attitude of the 

Respondent as the alleged violator, the degree of hazard, the action taken by the 

employer or other authority regarding the alleged violation, the use of certificate. 

The FAA should also identify what, if any, decisional law it utilized in 

calculating and coming to the proposed civil penalty. 

It should identify whether or not it utilized multiple violations or acts in 

calculating the proposed civil penalty, as well as considering the 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 of12 
ability to absorb the sanction, whether the violation was voluntarily reported, and 

whether the Respondent took corrective action, and whether such action was 

included in the calculation of'the penalty. -:~·1.:' 

If there were any mitigating/1e"Xt&lraating, or aggravating factors that the 

FAA took into consideration in calculating the proposed penalty, the FAA should 

say so and identify them 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 by the 

Respondent in defending against the proposed civil penalty. 

Dec. 15,2016 Tr. 64:11-66:4. 

Approximately thirty (30) days later, on January 17, 2017, the FAA served the 

Respondent with its Calculation.3 The FAA provided 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 either the specifically identified topics ordered to be 

addressed by the Court, or the 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 of all , ~: :t: ~~dan·;·~~ .. ;·;_., t 

EIR and EIR-related evidence. ~· .· r.1 ':·t·';~'ri4,:J, ;:;( ~- ( . D. Discussion 

As part of its arguments, the Respondent asserts that the FAA's Calculation failed to 

provide, as it was specifically directed by the Court, "substantive" information or evidence 

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 10,2017 the FAA filed proofthat on January 17,2017 it 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 

number the FAA utilized was incorrect on its face, since it contained five numerals at the end of the address (i.e., 

"67536") instead of the standard four numerals (e.g., "7536"). The number utilized by the 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'u1hher action to ensure that it filed its Calculation with 

the Court that same day. ;: i }:· . •.". .. 

Page 5 of 12 
of evidence 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 it had provided 

all the information that it was required to disclose pursuant to 14 C.F.R. §13.220(n). (Opp'n., 2.) 

1. Overview ofF AA Order 2150.3B 

FAA Order 2150.3B became effective on October I, 2007. It is a voluminous 

compilation of the "policies, procedures, and,~uid~Jines for the [FAA's] compliance and r til· \··~~~~r-, .. · .. ·~:J\·:ru 

enforcement program." FAA Order ~~~.0.3B.i G9Y~! Page. Since October 1, 2007, multiple \ . ~ . ' . -~ . . . 

changes to FAA Order 2150.3B have been adopted, and new appendixes have been added. See, 

e.g., FAA Order 2150.3B 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 with the FAA's 

sanction enforcement program. 

In essence, when the FAA investigates and subsequently alleges a safety regulatory 

violation against an entity or an individual, the FAA personnel utilize material in FAA Order 

2150.3B, and "analyze whether each ofthe factors in Chapter 7, paragraph 4 or Appendix Cis 

relevant and applies to the case." FAA Order 2150.3B, 8-2 (b)(2). Pursuant to FAA Order 

2150.3B, Chapters 2 and 7, the FAA's determination of a sanction is not the result of a 

mathematical calculation. Instead, it is the result of a subjective evaluation and weighting of 

multiple factors (FAA Order 2150.3B, Ch. 7-1 and 4 (a)-(m)), which often involves joint review to • ....... 

and consideration of individual case ~r;~~~~~~~~~t. FAA personnel, after the initial 

investigation is complete. FAA Order 2150.3'B, ·ttL· 2-3(i) - 4( a)-( e). 

To assist FAA investigative and/or charging personnel in determining what civil penalty 

assessment to propose in compliance with FAA Order 2150.3B, the FAA's EIR specifically 

identifies by heading 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 Order Denying the 

Respondent's Motion to Dismiss and Reserving the Respondent's Alternate Motion for Preclusion of Evidence. 

5 This Order was issued prior to receipt of the February 15,2017 Conference Transcript, so page citations to the 

Transcript are not available. 

Page 6 of12 

f t 'i. .~. 'i4ftt•1··.;3i\i)~,: '.:(; r~. ( ::n:\: ~:~r; .~>. 
facts and circumstances of an individli~~ ca~,c·J;ipclullir.g: 1) the nature of the violation (including 

how safety was affected); 2) whetherth~ vi6i~ii6k.:\v~s inadvertent and not deliberate; 3) the 

certificate holder's level of experience and responsibility; 4) the attitude of the violator; 5) the 

degree of hazard; 6) the action taken by the employer or other authority; 7) the use of certificate; 

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 of the type of sanction; 11) whether the 

violation was reported voluntarily; and, 11) what, if any, 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 if there 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 

It was 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, or consistent with the EIR heading 

format. Instead, the FAA provided a general narrative explanation, with two specific references 

to pages in FAA Order 2150.3B, Chapter 7. 

In its Opposition to the Respondent's Motion for Preclusion, the FAA primarily 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). It argued 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, and therefo:t;e any error(s) or omissions in its 

Calculation should be excused. It also asserted certain factors had been omitted because the 

Page 7 of12 
information was privileged--despite the Court's December 15,2016 ruling that such information 

was not privileged and must be disclosed. The FAA then asked for more time and another 

opportunity to comply with the Court's December 15, 2016 directives. It also argued that the 

general narrative it had provided had not prejudiced the Respondent. (Opp'n, 4.) The FAA did 

not, however, acknowledge the multiple problems associated with non-compliance with a Court 

order, or the limited time that existed prior to the reserved hearing dates. Nor did the FAA 

recognize the history of the Respondent's repeated attempts to obtain the discovery (dating back 

to October 13, 20 15), and the time al]9 ,t;no~~y: c?s~s\~associated with such attempts . . • •. , ,,, :··. 1 •. , ... ,lvJ,, 

3. Purpose of Sanctions 

It is well-established in federal litigation practice that a court has broad discretion to 

impose discovery sanctions, either for violation of discovery rules or orders, or under the court's 

inherent power to prevent abuse of the judicial process. Fed. R. Civ. P. 26(a), 37(c); 33 Am. Jur. 

Proof of Facts 3d 459 (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 enable judges to control 

their dockets and manage the flow of litigation. 33 Am. Jur. Proof of Facts 3d 459 § 6 (Dec. 

2015); Goldstein v. Co/borne Acquision Co .. LLC, 873 F. Supp. 2d 932 (N.D. Ill. 2012); Mya 

Saray, LLC v. 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 or other 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 3d 459 § 1 (Dec. 20 15). 

4. Preclusion of Certain Evidence is Warranted 

As noted by this Court during the February 15, 2017 Conference, the FAA's EIR 

headings identify the primary factors that FAA personnel are supposed to consider, pursuant to 

FAA Order 2150.3B, Chapter 7, in calculating a proposed civil penalty. The December 15, 2016 

Page 8 of12 
order directed the FAA to disclose th~ f~ct~ii#a ·o~ihions it ultimately utilized in support of its ~ . 

charging decision to propose an $11,000 civil penalty. The Court's order specifically followed 

and repeated the FAA's own EIR factor headings, to describe what fact and opinion evidence the 

FAA needed to disclose. Nevertheless, the FAA chose to craft its Calculation in a manner that 

did not repeat or reference either the 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 by the 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 or not the FAA actually 

complied and disclosed the Court-ordyr~d i!lf?matJon. This type of presumption 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 clear that the FAA omitted from its Calculation 

multiple factors that the Court specifically ordered the FAA to address. Thus, the FAA's 

narrative Calculation fell noticeably short of complying with the Court's December 15,2016 

ruling. 

A fundamental cornerstone of litigation practice is that a party must comply with a Court 

order, even when that party may disagree with the ruling. The FAA has proffered no reasonable 

explanation for its partial noncompliance with the Court's ruling. In the instant case, at this stage 

of the 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 correct that some of these events occurred before the July 2016 substitution of FAA 

counsel. (Opp'n, 4.) However, as the Respondent noted, there was still a negative impact on the Respondent's time 

Page 9 of12 
have 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 on June 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 summary judgment 

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 information that 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's partial non-compliance. The 

sanction of preclusion should only address that portion of the 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 of the 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 Court provided resources and information to both parties about what information was protected by the 

attorney work product privilege. (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 Part the 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 of inadvertence. 

Page 10 oflZ 
decisional law, if any, 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 or extenuating 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 of the case and 

calculation of the 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, or considered, the following nine (9) factors in its assessment of the case and 

calculation of the proposed $11,000 civil penalty: 1) whether the violation was deliberate; 

2) the attitude of the Respondent as the alleged violator; 3) the action taken by the 

employer or other authority regarding the alleged violation; 4) the decisional law, if any, 

it utilized; 5) the Respondent'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 or extenuating factors; and, 9) whether it had and utilized any 

exculpatory evidence on behalf of the 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 product privilege. The 

FAA was reminded that it had been ordered tmDecernBer 1:5,'2016 to provide the mformation. The FAA was also 

re-a.dvised that "legal theories" were disclosable in federal civil litigation. Feb. 15,2017 Tr. _;see also, Jan. 26, 

2017 Order, 6-7 ~D. 

11 The FAA did include in its Calculation information about aggravating factors it considered. 

Page 11 of12 
3. The Respondent's Motion to Preclude Evidence, in which it requested preclusion of the 

entire EIR, is denied. The FAA may utilize in its case presentation the un-redacted 

portions of the EIR which were previously disclosed to the Respondent. 

4. If either party needs clarification or has any questions regarding the procedures 

contained in this Order, contact Ms. Kelly Ort, Judicial Staff Assistant, 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-Suite 2W1 0001 

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 Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

ONE COPY 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-5121 

FPCX: 202-366-7536 

1 Service 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.