Michael L. Dworkin (CA Bar# 64047) MICHAEL L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 SanFrancisco, CA 94104 Telephone: 415-421-2500 FAX: 415-421-2560 Email: law@avialex.com Counsel for MARTINAIRE AVIATION, LLC 

# REC I MAY 152014 

# HEAR.I

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

In the Matter of:

MARTINAIRE AVIATION, LLC FAA Case No. 2011SW700189 DMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE COMPLAINANT'S EVIDENCE RELATING TO COMPUTATION AND/OR REASONABLENESS OF SANCTION (MOTION IN LIMINE NO. 1) Judge: The Honorable Richard C. Goodwin

TO THE DEPARTMENT OF TRANSPORTATION, THE HONORABLE RICHARD C. GOODWIN, ADMINISTRATIVE LAWJUDGE, AND TO THE ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION AND HIS ATTORNEYS OF RECORD:

In accordance with 14 C.F.R. Section 13.218 (Rule 13.218) and the Federal Rules ofCivil Procedure, Martinaire (Respondent) moves thatthe Administrative LawJudge (ALJ) preclude the elicitation or admission ofany evidence ofor relating to Complainant's calculation, determination, deliberation or other reflection ofthe appropriateness or reasonableness ofthe sanction amount sought in this action.FACTS Complainant issued aNotice ofProposed Civil Penalty (NOPCP) on May 20, 2012. A FinalNOPCP was issued on January 7, 2013 from which Martinaire appealed and the Final NOPCP was filed as the complaint in DMS No. FAA-2013-0040 on January 15, 2013 seeking a civil penalty of$206,550.00 for 12 alleged Notice to Pilot In Command (NOPIC) violations Complainant discovered during an inspection ofseveral hundredNOPIC's Respondent provided covering a 90 day period. This civil penalty is unprecedented. Complainant's witnesses have testified at deposition that to their best recollection and knowledge, Complainant has never sought a civil penalty ofthis size for allegedNOPIC violations and, in fact, this civil penalty is several times the size ofthe maximum civil penalty that Complainant has ever sought for aNOPIC violation against any air carrier, large or small. Respondent filed its Answer on February 1, 2013 alleging certain Affirmative Defenses, including: The sanction soughtby Complainant is unwarranted by the facts, safety in

commerce and the public interest and is not only excessive, but, far exceeds policy, precedent and Complainant's own Sanction Guidance Table. Further, the sanctionis compounded, inviolation ofthe Complainant's own Sanction Guidance Table (FIRST AFFIRMATIVE DEFENSE); To the extentthat the Complainanthas relied upon FAA Order 2150.3B in determining the sanction in this case: 1) Complainant has compounded the alleged violation and sanctions in contravention ofsaid Order; 2) Complainant seeks civil 2 FAA Case No. 2011 SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE COMPLAINANT'S EVIDENCE RELATING TO COMPUTATION AND/ORREASONABLENESS OF SANCTIONpenalties in excess ofthose suggested in said Order's Appendix C, Figure C-1, in further contravention ofsaid Order; 3) Complainant has further contravened said Order in not taking into considerationthe considerable corrective actionthat was immediately thereafter taken by Respondent; and 

### 4) Said Order, to the extentthat it treats Respodent as a Group II carrier, is arbitrary, capricious and unenforceable. Specifically, Figure C-1 ofthe Sanction Guidance Table contained within said Order mandates that Respondentbe treated as a Group II carrier and accordingly be subjectedto higher penalties than Group III or IV carriers. The sole reason for this is the number ofaircraft that Respondent operates (39, including 24 owned and 15 leased aircraft), all ofwhichhave a maximum gross takeoffweight ofless than 12,500 pounds. Howeverthe Order and Table fail to account for the size ofthe aircraft or their payloads. Underthe Order and Table, a carrier operating fewer, but larger, aircraft, carrying far greater payloads, and far greater numbers ofhazardous materials shipments and generating substantially greater revenues, couldbe treated as a smaller carrier and be subjectto lesser penalties.' (SIXTH AFFIRMATIVE DEFENSE) Because the above Affirmative Defenses directly address and questionthe appropriateness and general accuracy ofComplainant's computations and deliberation in determining the sanction in this matter, Respondent propounded discovery requesting said information from Complainant, including depositions ofthose responsible for the penalty determinations and calculations.

1The Martinaire fleet has since beenreducedby one aircraft. 3 FAA Case No. 2011 SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE COMPLAINANT'S EVIDENCE RELATING TO COMPUTATION AND/OR REASONABLENESS OF SANCTIONInresponseto this discovery, Complainant filed a Motion for Protective Order on

or about April4, 2013, seeking to prohibit any inquiry into the "deliberative process involving materials, data, information and testimony requested by Respondent." Respondent objected to the Motion. Notwithstanding Respondent's Objection, a Protective Order was issued on May I, 2013, granting Complainant's Motion, preventing discovery into matters involving how Complainant arrived at its civil penalty of$206,550.00. While the Protective Order clearly states that "Respondent may probe and inquire into matters respecting the agency's suggested civil penalty without compromising the policy," during the depositions ofComplainant's Persons Most Knowledgeable, Complainant's Counsel repeatedly directed FAA deponents notto answer any questions that could leadto the discovery ofinformation remotely related to Complainant's "deliberative process" or informationthat could explain why the FAA was seeking an unprecedentedpenalty in this action.2

2 Deposition ofBryan Edward Buchanan- Deposition transcripts were previously filed onor about June 26, 2013 as Exhibits to Respondent's Response and Objections to Complainant's Motion for Decision and Transmittal ofExhibits. Mr. Dworkin: Do you recall what [Mr. Klimas'] recommendation was [regarding sanction]? Mr. Archier: Objection. Mr. Dworkin: Are you instructing himnotto answer? Mr. Archier: Yes, I am... Mr. Archier: Any further questions along that line, I'm going to object onthe basis ofthe protective order. (Deposition Transcript 9:20-25;10:1-4, 13-15)

4 FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE COMPLAINANT'S EVIDENCE RELATING TO COMPUTATION AND/OR REASONABLENESS OF SANCTION(Copies ofthe entire depositiontranscripts ofMessrs. Buchanan and Klimas were submitted under cover ofRespondent's Transmittal ofExhibits, filed June 26, 2013, as Exhibits F and G.) While the NOPIC errors alleged inthe Complaint mayhave been established, Complainanthas not produced any evidence refuting Respondent's affirmative defenses and has notproduced evidence that its choice ofsanction is reasonable or appropriate and in accordance with established law and precedent. Complainanthas failed to explainhow

Mr. Dworkin: As I read the sanction guidance table in Order 2150.3B for HAZMA T cases, ... ifyou take the $206,550 and divide it by 12, you get something far in excess of what is inthe grid in the matrix. Is that a true statement? Mr. Buchanan: That is a true statement. Mr. Dworkin: Why did the FAAexceed what is contained in the grid in the hazardous materials sanction guidelines- (in this case?) Mr. Archier: Objection. That question falls withinthe deliberative process privilege, which is protectedby the protective order. I am instructing the witness notto answerthat question. (Deposition Transcript 12:13-25;13:1-2) Deposition ofPaul Daniel Klimas- Transcriptportion attached as Exhibit "B" Mr. Dworkin: What did youputin [redacted portion ofEnforcement Investigation Report]? Mr. Archier: I'm going to objectto that question. This documentthat is redacted is redacted by the attorney, me. He does not make the redactions. The material that's redacted here goes directly to the protective order and the material that's underprotection ofthe protective order. Mr. Dworkin: Okay. Are you directing himnot to answer? Mr. Archier: I am directing himnotto answerthat question. Mr. Dworkin: And, likewise, ["EnforcementDecision Tool Worksheet"], are you directing him notto answer? Mr. Archier: Thatis correct. Mr. Dworkin: And likewise, ["Hazardous Material EDP Worksheet"], you're also instructing him notto answer any questions regarding whathe had inserted inthat report? Mr. Archier: Thatis correct. Mr. Dworkin: And that goes onfor pages 3, 4, 5, and 6? Mr. Archier: Thatis correct. (Deposition Transcript 22:5-25; 23:1-5) 5 FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE COMPLAINANT'S EVIDENCE RELATING TO COMPUTATION AND/ORREASONABLENESS OF SANCTIONthis exorbitant civil penalty, the largest civil penalty on record for aNOPIC violation, and against a small business, having approximately l00 employees and operating 3 8 small aircraft, will further promote air transportation safety or hint at howit used its sanction guidance to arrive at such an amount when the alleged errors and omissions onthe part of Respondent's pilots were contrary to Respondent's own established policies, procedures and training and when Respondent immediately responded to the FAA's concerns, taking appropriate, swift and comprehensive corrective actions. In short, Respondenthas used every available avenue to obtain information into Complainant's "deliberativeprocess" and has been denied that information. On June 17, 2013 Complainant filed Motion for Decision seeking to have all findings ofviolation affirmed and the $206,550.00 penalty assessed. Respondentreplied on June 26, 2013 objecting ontwo specific issues: I. The affirmative defenses; and 2. The appropriateness ofthe sought penalty. On July 8, 2013 an Order granting inpart and denying in part Complainant's Motion for Decision found Respondent in violation ofthe cited provisions of49 CFR Section 175 but determined that the issue ofthe appropriateness ofthe civil penalty is genuinely controverted as Respondent had raised several valid defenses to Complainant's arguments in favor ofits proposed penalty amount.

6 FAA CaseNo. 2011 SW700189/FAA Docket No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE COMPLAINANT'S EVIDENCE RELATING TO COMPUTATION AND/ORREASONABLENESS OF SANCTIONARGUMENT As Respondenthas previously stated, the gross disproportion betweenthe Sanction Guidance tables, as well as any sanctions previously sought by Complainant against any other air carrier for similar violations, and the sanction sought inthis matter, absent any evidence ofhow Complainant arrived at said amount, suggests that there is no basis for the amount sought. Complainant has successfully taken every possible step to ensure thatRespondent be denied access to the alleged "Deliberative Process" which Respondent claims somehowvalidates the astronomical amount sought inthis action. Atthis point inthe proceedings, any attempts by Complainant to submit evidence thatthe penalty sought has some basis other than naught, would severely prejudice Respondent as ithas been denied any and every opportunity to formulate a defense to the sought sanction amount.3 Respondent has been denied an opportunity to review said calculations and deliberations for accuracy, reliability and admissibility, conduct discovery, or otherwise build a defense to arguments made, whether valid or not. Any attemptby Complainantto submit such evidence at this point will be met by objection as to said information's foundation and the reliability ofthe information

3 Under FRCP 37(c)(1), Courts have repeatedly precluded admission ofevidence regarding damages when a party has refused to provide said information during discovery. Hoffman v. Construction Protective Services, Inc. (9th Cir. 2008) 541 F.3d 1175,1179-1180.

7 FAA Case No. 2011 SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE COMPLAINANT'S EVIDENCE RELATING TO COMPUTATION AND/OR REASONABLENESS OF SANCTIONtherein. Allowing Complainantto submit evidence at this late stage willresult in severe disruptions during trial, eliminating any possibility ofuninterrupted flow ofevidence. Further, Complainant could have produced said discovery subjectto a claim of privilege or under seal for Respondent's Counsel's review and refusedto do so, instead seeking and receiving what Complainant contends is a blanketprotective order.

CONCLUSION For the foregoing reasons, Respondent asks thatthe Administrative LawJudge issue an Order prohibiting the introduction ofany evidence ofits internal calculations of

or the reasonableness or appropriateness ofthe civil penalty sought in this action. Specifically, Respondentrequests an Order that: 1. Complainant be excluded from submitting any evidence as to how it determined the appropriateness ofand/or calculatedthe subject sanction; and 2. Complainant's counsel be ordered notto make any mention or reference thereto in opening statements, during trial, in argument or closing, and to direct persons under their control likewise to avoid such mention. Respondent respectfully requests that this Motion In Limine not be taken under submission andthat a Court Order granting or denying this Motion be made.



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### ,CJ.J:.~·**~** // Mi ael L. DworRm ,;:::; . Attorney for Respondent

8 FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE COMPLAINANT'S EVIDENCE RELATING TO COMPUTATION AND/OR REASONABLENESS OF SANCTIONCERTIFICATE OF SERVICE The undersigned hereby certifies that on this Jl{!'clay ofMay, 2014, a true and correct copy ofthe foregoing MARTINAIRE AVIATION, LLC'STOPRECLUDE COMPLAINANT'S EVIDENCE RELATING TO COMPUTATION AND/ORREASONABLENESS OF SANCTION (MOTIONINLIMINE NO. 1)

was served as follows: The Honorable Richard C. Goodwin Office ofHearings, M-20 1200 New Jersey Avenue, S.E. East Building Ground Floor, Room E12- 320 Washington, D.C. 20590 {Federal Express} Federal Aviation Administration 800 Independence Avenue SW Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 {Federal Express} James Archier, Esq. Federal Aviation Administration Office ofthe Regional Counsel, ASW-7 2601 Meacham Boulevard, Suite 6E Fort Worth, TX 76137{Federal Express}

CAITLIN M. MILLER

9 FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE COMPLAINANT'S EVIDENCE RELATING TO COMPUTATION AND/ORREASONABLENESS OF SANCTION