Michael L. Dworkin (CA Bar# 64047) 

MICHAEL L. DWORKIN and ASSOCIATES 

465 California Street, Suite 21 0 

San Francisco, CA 94104 

Telephone: 415-421-2500 

FAX: 415-421-2560 

Email: law@avialex.com 

Counsel for MARTINAIRE AVIATION, LLC 

REC I 

MAY 1 5 2014 

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 LAW JUDGE, 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 

of Civil Procedure, Martinaire (Respondent) moves that the Administrative Law Judge 

(ALJ) preclude the elicitation or admission of any evidence of or relating to 

Complainant's calculation, determination, deliberation or other reflection of the 

appropriateness or reasonableness of the sanction amount sought in this action. 
FACTS 

Complainant issued a Notice of Proposed Civil Penalty (NO PCP) on May 20, 

2012. A Final NOPCP was issued on January 7, 2013 from which Martinaire appealed 

and the Final NO PCP 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 (NO PIC) violations Complainant discovered during an inspection of several 

hundred NOPIC'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 

alleged NO PIC violations and, in fact, this civil penalty is several times the size of the 

maximum civil penalty that Complainant has ever sought for a NO PIC violation against 

any air carrier, large or small. 

Respondent filed its Answer on February 1, 2013 alleging certain Affirmative 

Defenses, including: 

The sanction sought by 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 

sanction is compounded, in violation of the Complainant's own Sanction 

Guidance Table (FIRST AFFIRMATIVE DEFENSE); 

To the extent that the Complainant has relied upon FAA Order 2150.3B in 

determining the sanction in this case: 1) Complainant has compounded the alleged 

violation and sanctions in contravention of said Order; 2) Complainant seeks civil 

2 

FAA Case No. 2011 SW700189/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 
penalties in excess of those suggested in said Order's Appendix C, Figure C-1, in 

further contravention of said Order; 3) Complainant has further contravened said 

Order in not taking into consideration the considerable corrective action that was 

immediately thereafter taken by Respondent; and 4) Said Order, to the extent that 

it treats Respodent as a Group II carrier, is arbitrary, capricious and 

unenforceable. Specifically, Figure C-1 of the Sanction Guidance Table 

contained within said Order mandates that Respondent be treated as a Group II 

carrier and accordingly be subjected to higher penalties than Group III or IV 

carriers. The sole reason for this is the number of aircraft that Respondent 

operates (39, including 24 owned and 15 leased aircraft), all of which have a 

maximum gross takeoff weight of less than 12,500 pounds. However the Order 

and Table fail to account for the size of the aircraft or their payloads. Under the 

Order and Table, a carrier operating fewer, but larger, aircraft, carrying far greater 

payloads, and far greater numbers of hazardous materials shipments and 

generating substantially greater revenues, could be treated as a smaller carrier and 

be subject to lesser penalties.' (SIXTH AFFIRMATIVE DEFENSE) 

Because the above Affirmative Defenses directly address and question the 

appropriateness and general accuracy of Complainant's computations and deliberation in 

determining the sanction in this matter, Respondent propounded discovery requesting 

said information from Complainant, including depositions of those responsible for the 

penalty determinations and calculations. 

1 The Martinaire fleet has since been reduced by one aircraft. 

3 

FAA Case No. 2011 SW700189/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 
In response to 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 of Complainant's Persons Most Knowledgeable, 

Complainant's Counsel repeatedly directed FAA deponents not to answer any questions 

that could lead to the discovery of information remotely related to Complainant's 

"deliberative process" or information that could explain why the FAA was seeking an 

unprecedented penalty in this action.2 

2 Deposition of Bryan Edward Buchanan- Deposition transcripts were previously filed 

on or about June 26, 2013 as Exhibits to Respondent's Response and Objections to 

Complainant's Motion for Decision and Transmittal of Exhibits. 

Mr. Dworkin: Do you recall what [Mr. Klimas'] recommendation was [regarding 

sanction]? 

Mr. Archier: Objection. 

Mr. Dworkin: Are you instructing him not to answer? 

Mr. Archier: Yes, I am ... 

Mr. Archier: Any further questions along that line, I'm going to object on the basis of the 

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 of the entire deposition transcripts of Messrs. Buchanan and Klimas were 

submitted under cover of Respondent's Transmittal of Exhibits, filed June 26, 2013, as 

Exhibits F and G.) 

While the NO PIC errors alleged in the Complaint may have been established, 

Complainant has not produced any evidence refuting Respondent's affirmative defenses 

and has not produced evidence that its choice of sanction is reasonable or appropriate and 

in accordance with established law and precedent. Complainant has failed to explain how 

Mr. Dworkin: As I read the sanction guidance table in Order 2150.3B for HAZMA T 

cases, ... if you take the $206,550 and divide it by 12, you get something far in excess of 

what is in the grid in the matrix. Is that a true statement? 

Mr. Buchanan: That is a true statement. 

Mr. Dworkin: Why did the FAA exceed what is contained in the grid in the hazardous 

materials sanction guidelines- (in this case?) 

Mr. Archier: Objection. That question falls within the deliberative process privilege, 

which is protected by the protective order. I am instructing the witness not to answer that 

question. 

(Deposition Transcript 12:13-25;13:1-2) 

Deposition of Paul Daniel Klimas- Transcript portion attached as Exhibit "B" 

Mr. Dworkin: What did you put in [redacted portion of Enforcement Investigation 

Report]? 

Mr. Archier: I'm going to object to that question. This document that 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 under protection 

ofthe protective order. 

Mr. Dworkin: Okay. Are you directing him not to answer? 

Mr. Archier: I am directing him not to answer that question. 

Mr. Dworkin: And, likewise, ["Enforcement Decision Tool Worksheet"], are you 

directing him not to answer? 

Mr. Archier: That is correct. 

Mr. Dworkin: And likewise, ["Hazardous Material EDP Worksheet"], you're also 

instructing him not to answer any questions regarding what he had inserted in that report? 

Mr. Archier: That is correct. 

Mr. Dworkin: And that goes on for pages 3, 4, 5, and 6? 

Mr. Archier: That is 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/OR REASONABLENESS OF SANCTION 
this exorbitant civil penalty, the largest civil penalty on record for a NO PIC violation, and 

against a small business, having approximately l 00 employees and operating 3 8 small 

aircraft, will further promote air transportation safety or hint at how it used its sanction 

guidance to arrive at such an amount when the alleged errors and omissions on the 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, Respondent has used every available avenue to obtain information into 

Complainant's "deliberative process" and has been denied that information. 

On June 17, 2013 Complainant filed Motion for Decision seeking to have all 

findings of violation affirmed and the $206,550.00 penalty assessed. 

Respondent replied on June 26, 2013 objecting on two specific issues: 

I. The affirmative defenses; and 

2. The appropriateness of the sought penalty. 

On July 8, 2013 an Order granting in part and denying in part Complainant's 

Motion for Decision found Respondent in violation of the cited provisions of 49 CFR 

Section 175 but determined that the issue of the appropriateness of the civil penalty is 

genuinely controverted as Respondent had raised several valid defenses to Complainant's 

arguments in favor of its proposed penalty amount. 

6 

FAA Case No. 2011 SW700189/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 
ARGUMENT 

As Respondent has previously stated, the gross disproportion between the 

Sanction Guidance tables, as well as any sanctions previously sought by Complainant 

against any other air carrier for similar violations, and the sanction sought in this matter, 

absent any evidence of how Complainant arrived at said amount, suggests that there is no 

basis for the amount sought. 

Complainant has successfully taken every possible step to ensure that Respondent 

be denied access to the alleged "Deliberative Process" which Respondent claims 

somehow validates the astronomical amount sought in this action. 

At this point in the proceedings, any attempts by Complainant to submit evidence 

that the penalty sought has some basis other than naught, would severely prejudice 

Respondent as it has 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 attempt by Complainant to submit such evidence at this point will be met by 

objection as to said information's foundation and the reliability of the information 

3 Under FRCP 37(c)(1), Courts have repeatedly precluded admission of evidence 

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 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 
therein. Allowing Complainant to submit evidence at this late stage will result in severe 

disruptions during trial, eliminating any possibility of uninterrupted flow of evidence. 

Further, Complainant could have produced said discovery subject to a claim of 

privilege or under seal for Respondent's Counsel's review and refused to do so, instead 

seeking and receiving what Complainant contends is a blanket protective order. 

CONCLUSION 

For the foregoing reasons, Respondent asks that the Administrative Law Judge 

issue an Order prohibiting the introduction of any evidence of its internal calculations of 

or the reasonableness or appropriateness of the civil penalty sought in this action. 

Specifically, Respondent requests an Order that: 

1. Complainant be excluded from submitting any evidence as to how it determined 

the appropriateness of and/or calculated the subject sanction; and 

2. Complainant's counsel be ordered not to 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 and that a Court Order granting or denying this Motion be made. 

· ·iH. hi !J '1. 

Dated this LJ_ day of May, 2014 

R~,szJl zfu.lly su~. mi,d, 

/ .{.4,.·· J 

// [{:tt;t:cf. ,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 SANCTION 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this Jl{!'clay of May, 2014, a true and correct 

copy of the foregoing 

MARTINAIRE AVIATION, LLC'S TO PRECLUDE COMPLAINANT'S 

EVIDENCE RELATING TO COMPUTATION AND/OR REASONABLENESS 

OF SANCTION (MOTION IN LIMINE NO. 1) 

was served as follows: 

The Honorable Richard C. Goodwin 

Office of Hearings, 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 2Wl 000 

{Federal Express} 

James Archier, Esq. 

Federal Aviation Administration 

Office of the 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/OR REASONABLENESS OF SANCTION