UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

IN THE MATTER OF: FELTS FIELD AVIATION, INC.

Wednesday, February 15, 2017 FDMS No. FAA-2015-3307 1

The teleconference convened, pursuant to notice, at 1:30 p.m. BEFORE:

(202) 234-4433 THE HONORABLE J. E. SULLIVAN, U.S. Administrative Law Judge 

# RECEIVED MAR 022017 HEARING DOCKET

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.comAPPEARANCES: 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, CA 90009 310-725-7112 On Behalf of the Respondent: BENJAMIN L. WYBORNEY, ESQ. of: Conlin, Maloney & Miller 421 West Riverside Avenue, Suite 911 Spokane, WA 99201 509-624-3020

ALSO PRESENT: CODY SMITH

NEAL R. GROSS 2

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1 P-R-0-C-E-E-D-I-N-G-S 2 (1:31 p.m.) 3 JUDGE SULLIVAN: We're on the record 4 in the matter of Felts Field Aviation. This is 5 Docket Number FAA-2015-3307. Today is Wednesday, 6 February 15, 2017, and the parties have convened 7 by telephone for a combined motion and scheduling 8 conference. The Federal Aviation Administration, 9 which I'll here and after refer to as the FAA is 10 represented by its attorney at record, Ms. 11 Fatimah Stokley, the Respondent, Felts Field 12 Aviation, Inc., has two attorneys, Mr. Mark J. 13 Conlin and Mr. Benjamin L. Wyborney. And it's my 14 understand that Mr. Wyborney is appearing today 15 for this. 16 MR. WYBORNEY: That's correct, Your 17 Honor. 18 JUDGE SULLIVAN: Thank you. Also 19 present at the Office of Hearing to remain as an 20 observer is Mr. Cody L. Smith, an attorney 21 advisor with this office. Ms. Stokley, anyone 22 else appearing with you on the behalf of the FAA?

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1 MS. STOKLEY: Yes, Adam Runkel is on 2 the phone. 3 JUDGE SULLIVAN: And could you 4 identify his title and then spell his last name, 5 please. 6 MS. STOKLEY: His last name is spelled 7 R-U-N-K-E-L, and he's the manager of the National 8 Enforcement Practice's Western team for the FAA. 9 JUDGE SULLIVAN: I'm sorry, the 10 manager of the Western what? 11 MS. STOKLEY: The National Enforcement 12 Practice Western team. 13 JUDGE SULLIVAN: And is Mr. Runkel and 14 attorney or someone else? 15 MS. STOKLEY: Right, he is an 16 attorney, Your Honor. 17 JUDGE SULLIVAN: Okay, thank you. Mr. 18 Wyborney is there anyone else appearing on 19 behalf of the respondent? 20 MR. WYBORNEY: No, Your Honor. Mr. 21 Conlin can't be here today. 22

(202) 234-4433 JUDGE SULLIVAN: Okay. All right, so

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com5 1 let's talk a little bit about why we're here and 2 what we're going to accomplish. Essentially, the 3 parties last convened on February 3, 2017, for a 4 scheduling conference, and during this conference 5 we talked briefly about the January 31, 2017 6 supplemental brief that had been filed by the 7 Respondent in support of its motion to dismiss. 8 We also talked about the primary 9 motion to dismiss and the Court issued an oral 10 ruling about that, leaving for today the 11 alternative motion to preclude that had been 12 contained in the Respondent's January 31, 2017 13 supplemental brief. 14 And thereafter, on February 6, 2017, 15 the Court issued an order denying the 16 Respondent's motion to dismiss and reserving the 17 Respondent's alternate motion for preclusion of 18 evidence. This included a due date for the FAA 19 to file a written response to the Respondent's 20 motions for preclusion, which the FAA did file on 21 February 10, 2017. 22

(202) 234-4433 So we are back today to have some

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com6 1 argument about this alternate motion for 2 preclusion. And I think what we probably should 3 do is talk a little bit about who goes first and 4 what should get covered and then what we're going 5 to talk about after that motion is fully briefed 6 with the Court. 7 This is the Respondent's alternate 8 motion for preclusion so the Respondent should go 9 first and basically highlight what it wants to 10 say in terms of this particular motion and to 11 highlight what portion, if any it wants to bring 12 out regarding the most recent materials that have 13 been filed with the Court. The FAA will then 14 follow with its opposition and then the 15 Respondent will have a right of final reply. I'm 16 hoping that the Court will have an opportunity 17 after being briefed to issue oral rulings on that 18 so that we can potentially maintain our current 19 litigation schedule. 20 And we talk about that a little bit 21 more at the conclusion of the argument. I should 22 note just so that you are aware that since our

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 W'JoN.I.nealrgross.com7 1 last conference on February 3, 2017, the Court 2 did contact the District Court in Spokane and was 3 able to reserve time for hearing during the week 4 that everybody has had reserved on our calendars. 5 If it's possible to try the case in 6 June 2017, that the parties have tentatively 7 talked about earlier in the year, we do have a 8 courtroom for that. But we will revisit that 9 issue at the end of oral argument. So I should 10 note -- let's see -- Mr. Wyborney, before I turn 11 to you for oral argument, was there anything else 12 that we needed to address preliminarily before 13 you begin with your comments? 14 MR. WYBORNEY: No, Your Honor, I don't 15 believe so. 16 JUDGE SULLIVAN: Okay, the same 17 question to you, Ms. Stokley? 18 MS. STOKLEY: No, Your Honor. 19 JUDGE SULLIVAN: Okay. Then Mr. 20 Wyborney, you have in your January 31, 2017 21 supplemental brief filed an alternate request for 22 relief, specifically to preclude the FAA from

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com8 1 admitting certain evidence. 2 Would you care to highlight for me, 3 and if, what that motion is about? And also, if 4 you're going to refer to materials, if you would 5 specifically tell me what materials you're 6 looking at so that I can look at them with you. 7 MR. WYBORNEY: Your Honor, I will be 8 referring my motion dated January 30, entitled, 9 "Respondent's motion to dismiss supplemental 10 brief." That's why we're here today. And I will 11 also be referencing information from FAA Order 12 2150.3B. 13 JUDGE SULLIVAN: Okay, thank you. Go 14 ahead. 15 MR. WYBORNEY: Your Honor, as you 16 know, we're here I'rn very hard to get this 17 information from the FAA. We filed a motion to 18 compel. That motion to compel was granted in 19 part and the FAA was supposed to produce that 20 information by January 17. But it seems that, 21 their calculation of how they carne to the penalty 22 was so non-responsive to amount to a failure to

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1 produce. 2 Your order said, that "The FAA shall 3 specifically disclose to the Respondent how each 4 of the factors affecting sanction headlined in 5 the EIR, as well as any other data it considered 6 pursuant FAA Order 2150.3B had been considered in 7 the FAA final determination as a proposed $11,000 8 civil penalty in its complaint. " This Court then 9 identified the factors during the hearing. And 10 you again identified the factors in your order in 11 a footnote. 12 First, the calculation that Ms. 13 Stokley provided is basically a declaration by 14 Ms . Stokley. It doesn't convey any of the 15 information that the Air Force, that the FAA may 16 have considered, and it certainly doesn't discuss 17 with Mr. Spitzer, the original attorney that made 18 the charting decision considered. 19 It's Ms. Stokley's declaration after 20 the fact. Second, in the language of your order, 21 the FAA in its calculation identified one 22 aggravating

(202) 234-4433 factor, carelessness

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www.nealrgross.com10 1 considered up on page 2, and that's in the 2 attachment to my motion. 3 The FAA did not specifically disclose 4 the nature of the violation, whether it was 5 operational or not, careless or aggravated. The 6 FAA did not specifically disclose information 7 substantiating the characterizations of a 8 substantial threat to safety from Ms. Stokley's 9 calculation. 10 The safety threat is supposed to be 11 based on the reasonably foreseeable consequences 12 of the misconduct. They didn't disclose whether 13 they considered that or how they arrived to that. 14 The FAA did not specifically disclose whether it 15 considered whether the violation was inadvertent 16 and not deliberate, or even if it characterized 17 the alleged violation as inadvertent or not 18 deliberate. And this is a list of factors from 19 your order, Your Honor. 20 The FAA did not specifically disclose 21 whether it considered the attitude of the allege 22 violator. The FAA did not specifically disclose

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com11 1 whether it considered the degree of hazard, which 2 again is supposed to be based on reasonable 3 foreseeable consequences. The FAA did not 4 specifically disclose whether it considered 5 corrective action taken by the alleged violator. 6 The FAA identifies that Felts Field holds a Part 7 135 certificate but it doesn't, the FAA doesn't 8 disclose whether they considered that, just that 9 they had one. 10 The FAA does not specifically disclose 11 whether it considered Felts Fields' nearly 50 12 years of accident and violation free operations 13 or even identified that history. We have no idea 14 if the FAA considered that. The FAA did not 15 specifically disclose whether it considered any 16 decisional law. Considering the ability to 17 absorb the sanction, the FAA, its supposed to 18 consider a carrier's size and financial strength. 19 This is from FAA Order 2150.3B. 20 The FAA did assert that Felts Field is 21 a group 4 carrier. This addresses 5, but the FAA 22 never specifically discloses whether it considers

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1 Felts, whether it considered Felts Field's 2 financial strength. The FAA said, well, Felts 3 Field can afford it, but they don't disclose any 4 information on which to base that assertion. And 5 this is not in defense of inability to pay. This 6 is in request to review the information that the 7 FAA considered. The FAA did not specifically 8 disclose whether it considered consistency of 9 sanction. It did not specifically disclose 10 whether it considered whether or not the alleged 11 violation was voluntarily reported. 12 It did not specifically disclose 13 whether it considered corrective action take by 14 Felts Field. Felts Field has taken corrective 15 actions to address the alleged violation. The 16 FAA did not identify, that it did identify what 17 it considered a careless act and an aggravating 18 factor but it did not specifically disclose 19 whether it considered any extenuating or 20 mitigating factors. 21 The FAA did not specifically disclose 22 whether any exculpatory evidence is in its

(202)234-4433 NEALR. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com13 1 possession. And so the FAA's identified a range 2 of penalties from minimum to moderate to maximum 3 from the FAA order 2150.3B, Appendix B, but 4 except for highlighting carelessness, it is 5 unexplained how it got from moderate to the 6 highest possible penalty, $11,000. Third and 7 finally, the Respondent is and has been 8 prejudiced. 9 The Respondent has wasted time and 10 wasted money trying to get information from the 11 FAA that it's entitled to. The Respondent cannot 12 prepare its defense unless its able to see the 13 information that the FAA considered, whether it 14 considered it or not, of even if it did consider 15 it, he can't prepare his defense without that 16 information. And that necessarily prejudices the 17 Respondent. That's all I have, Your Honor. 18 JUDGE SULLIVAN: Thank you. Counsel, 19 I'm looking at your material. This is the 20 supplemental brief, page 7. 21 22

(202) 234-4433 MR. WYBORNEY: Yes, Your Honor. JUDGE SULLIVAN: You've provided a

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com14 1 heading/time chart. 2 MR. WYBORNEY: Yes, Your Honor. 3 JUDGE SULLIVAN: On page 7' 4 identifying what you think are the missing pieces 5 of information. So

-- 6 MR. WYBORNEY: Yes, Your Honor. 7 JUDGE SULLIVAN:

-- as I understand 

### s it, you concede to a certain degree that some 9 things were identified but not a lot. 10 MR. WYBORNEY: Yes, Your Honor. 11 JUDGE SULLIVAN: And that there were 12 portions of the Court's order that were simply 13 ignored and that material was not even identified 14 as having not been considered for example. Or 15 there was simply nothing said about it at all. 16 MR. WYBORNEY: That's correct, Your 17 Honor, yes. 18 JUDGE SULLIVAN: So in your motion to 19 preclude, are you suggesting that the Court 20 preclude the FAA from introducing evidence in all 21 of these sections that you identify as having 22 received no information? What are you asking for

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 'WWW.nealrgross.com15 1 specifically in terms of your preferred request 2 for relief? 3 MR. WYBORNEY: I ask similar to the 4 FAA, I have a range, Your Honor. I would prefer 5 that you suppressed all information that comes 6 from the EIR. If the FAA is going to, in 7 violation of your order withhold that 8 information, they should not be able to present 9 any of it. 10 However, if you can't be that generous 11 in your ruling, Your Honor, as a minimum, I would 12 move that the FAA be precluded from presenting 13 any information regarding the items that have a 14 "no" in the table on that page 7 of my motion. 15 JUDGE SULLIVAN: Okay. And you did 16 have a chance to read and consider both the 17 December 15, 2017 (sic) transcript, as well as 18 the orders that have been issued since then? 19 MR. WYBORNEY: Yes, Your Honor. 20 JUDGE SULLIVAN: Okay, so if you are 21 aware that the Court has already taken a position 22 and ruled accordingly that material in the EIR is

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 www.nealrgross.com16 1 work product privileged? 2 MR. WYBORNEY: I understand that, Your 3 Honor. But I think I'm coming at it from a 4 slightly different angle. You ruled that the FAA 5 has to specifically disclose whether they 6 considered that information. They've not even 7 done that. If they did consider it, then I 8 believe that they have to disclose that 9 information. 10 JUDGE SULLIVAN: Now, I'm going to 11 interrupt you and I'm going to say that's 12 correct. That's also the Court's ruling, as 13 well. But the EIR itself is not a disclosable, 14 but any facts or circumstances that the FAA 15 ultimately considered is a disclosable, or are 16 disclosable as the Court has previously ordered. 17 MR. WYBORNEY: Yes, Your Honor. So 18 it's my position that if the FAA will not 19 specifically disclose whether it considered a 20 factor, then all evidence of that factor should 21 be suppressed. 22

(202) 234-4433 JUDGE SULLIVAN: Okay.

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WNW.nea!rgross.com17

1 helpful. Anything else that you would like to 2 add to your primary argument? 3 MR. WYBORNEY: Not at this time, Your 4 Honor. I do, would reserve for rebuttal, though. 5 JUDGE SULLIVAN: Okay. Thank you. 6 Ms. Stokley, why don't you take a few minutes to 7 highlight with your primary opposition is, and 8 then I do have some questions for you, as well. 9 MS. STOKLEY: Okay, Your Honor. The 10 Respondent's motion should be denied because the 11 Agency has provided a calculation of the proposed 12 civil penalty in compliance with 14 CFR, Section 13 1322 220-N, Anger Order. 14 The Agency's calculation explained how 15 the civil penalty was calculated and it also 16 explained what factors the Agency considered when 17 calculating the civil penalty. The list of 18 aggravating and mitigating factors found in 19 2150.3B are not all relevant and the Agency only 20 provided the Respondent's in its calculations the 21 relevant information that it used when 22 calculating the civil penalty in this case.

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1 The Agency's calculation of the 2 proposed civil penalty in complying with your 3 order, Your Honor, and it should also be noted 4 that the factors that the Respondent is 5 highlighting in his argument, all of them aren't 6 relevant. For example, a complaint attitude is 7 the norm, and is neither an aggravating or 8 mitigating factor, so that wasn't something that 9 the Agency used when calculating its civil 10 penalty in this case. 11 Thus far in this case, the Agency has 12 provided Respondent with the redacted copy of the 13 EIR, all of the items of proof utilized by the 14 Agency to support the allegations against the 15 Respondent, a response to 

### all of the 16 interrogatories, requests for admissions, 17 requests for productions in discovery and 18 detailed calculation of the proposed civil 19 penalty. 20 The only information that the Agency 21 has withheld is privileged information that you 22 already order Respondent was entitled to because

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1 it was deliberative. Consequently, the Agency 2 respectfully requests that the Respondent's 3 motion be denied. 4 JUDGE SULLIVAN: Let's talk a little 5 bit about the Court's order. 6 MS. STOKLEY: Yes. 7 JUDGE SULLIVAN: The Court's order

-- 8 MS. STOKLEY: Which order are you 9 referring to? 10 JUDGE SULLIVAN: The Court's order 11 directing you to provide certain information on 12 or before January 17, 2017. 13 MS. STOKLEY: Okay. 14 JUDGE SULLIVAN: So and this was 15 specific to the FAA's calculation of the proposed 16 civil penalty in the amount of $11,000. 17 MS. STOKLEY: Yes. 18 JUDGE SULLIVAN: So the fact that you 19 have responded to other discovery is not relevant 20 to this particular motion at this time. 21 MS. STOKLEY: Well, the Respondent is 22 arguing, Your Honor, that it doesn't have enough

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com20 1 information to defend its case, and I disagree 2 with that argument. It has all the information 3 in evidence that the Agency used to present its 4 allegations in the complaint. And so the only 5 thing that the Respondent does not have at this 6 moment is privileged information. 7 JUDGE SULLIVAN: So is your position 8 that even though the Court directed you by court 9 order to provide certain information specifically 10 to the Respondent, on or before January 17, 2017, 11 in its statement calculating, showing how you 12 reached your calculations, that you could ignore 13 that in favor of your belief that you had already 14 provided it elsewhere? 15 MS. STOKLEY: No, Your Honor. Your 16 order specifically says that the Agency does not 17 have to provide privileged information to the 18 Respondent. It says that we're supposed to 19 provide the facts, data and opinion. We're not 20 supposed to provide the facts and opinions, the 21 opinions utilized by the FAA inspector when 22 formulating its case. But whether we were just

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 WW-N.nealrgross.com21 1 suppose to provide the factors that we used, that 2 were not, that was not privileged information. 3 JUDGE SULLIVAN: I'm going to refer 4 you to the December 15, 2017 (sic) transcript. 5 Do you have that in front of you? 6 MS. STOKLEY: No, Your Honor. I don't 7 have the transcript in front of me. 8 JUDGE SULLIVAN: Okay. Well, I'm 9 going to get my copy out so that I can reference 10 the page number and lines that I want you to 11 think about and we're going to talk about a 12 little bit. So I'm on the, I'm in the December 13 15, 2016 court transcript, page 64, line 11. 14 And that's where I begin to direct you 15 very specifically to provide in detail certain 16 item of proof. And, on page 64, line 11, it says 17 --I'm sorry, page 64, line 17, it says, "And the 18 calculation information that is disclosed by the 19 FAA should include and address all factors in 20 effecting a sanction, which should be and is not 21 limited to.'' 22 And then I give a laundry list to you

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com22 1 of what you need to address in your calculation. 2 And that runs into page 65, and over into page 3 66. And essentially, what I was doing with you 4 and the Respondent on December 15, 2017 (sic) was 5 walking you both through the EIR that had been 6 attached to the Respondent's original motion to 7 compel, and talking with you both about those 8 headings, some of which had no material that was 9 provided and some which did. 10 And I was talking to you both about 11 how even though the information that may be in 12 the EIR is investigative and privileged, any 13 data that the FAA ultimately utilized under each 14 and every one of those headings, whatever it 15 might be was disclosable if it was part of the 16 final product of recommending the proposed 17 penalty. And I went through it in that regard so 18 that it would be easy for you to comply with and 19 easy for the Respondent to receive, read and 20 understand. 21 And what I'm seeing in the calculation 22 that you provided is no attempt at all to provide

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com23 1 the information in a manner in which the Court 2 directed you to do. And that concerns me. 3 MS. STOKLEY: Well, Your Honor, I've 4 5 JUDGE SULLIVAN: I'm going to 6 interrupt you. I'm going to interrupt you. Was 7 there some reasons that you, that you chose not 8 to follow the pre-bright line, paragraph headings 9 that the EIR uses in its format and that the 10 Court adopted in its direction to you? 11 MS. STOKLEY: Your Honor, maybe I'm 12 confused because it seems like you're saying I 13 didn't comply with your order because I didn't 14 format my calculation in a certain way. 15 JUDGE SULLIVAN: I'm saying that it's 16 clear that you did not follow the order's 17 direction in what to talk about because your 18 calculation does not identify by the headings in 19 the factors that the Court gave you to address. 20 You gave a narrative statement, which is helpful, 21 but you left it to the Court and the Respondent 22 to try and parse through it and figure out

(202) 234-4433 NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com24 1 whether or not you had addressed all the factors 2 that the Court directed you to address. 3 MS. STOKLEY: Your Honor, your order 4 did not direct me to provide a calculation with 5 specific headings. Your order directed me to 6 provide a calculation outlining and explaining 7 the factors that the Agency utilized when 8 determining the proposed civil penalty against 9 the Respondent. And that's exactly what we 10 provided. 11 JUDGE SULLIVAN: Okay, so when you 12 see, when you have been ordered

-- well, let me, 13 let me change that. So, it is your -- 14 MS. STOKLEY: In fairness, Your Honor, 15 it should also be noted that the order outlining 16 what exactly the Agency was provide, was supposed 17 to provide was sent January, I believe, 26th, 18 after the calculation was due. So that was also 19 confusing as well. 20 JUDGE SULLIVAN: Why was it confusing 21 to you, Counsel? 22

(202) 234-4433 MS. STOKLEY: Because it was provided

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com25 1 to me after I already submitted the calculation 2 to the Respondent, and now it appears that 3 Respondent is complaining about the format that I 4 provided the calculation of the proposed civil 5 penalty. 6 JUDGE SULLIVAN: Counsel, you were 7 present at the conference on December 15, 2

### o17 8 (sic). You

-- 9 MS. STOKLEY: Yes, Your Honor, and I 10 strongly believed that I complied with your 11 verbal order. 12 JUDGE SULLIVAN: All right. Well, 13 let's talk about your calculation. You indicate 14 in your calculation, and I'm going to go to that 15 next, and let's see, you indicated and maybe I 16 should, I'm going to use your opposition 17 statement at the same time I'm looking at your 18 calculation. So do you have those with you? 19 MS. STOKLEY: Yes, Your Honor. 20 JUDGE SULLIVAN: Okay. The Court 21 ordered you specifically to address those factors 22 that were identified specifically in the EIR

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1 heading that we talked about, and, on December 2 15, 2017 (sic). And the first was the .nature of 3 the violation. So you presented a calculation of 4 the proposed civil penalty that's a page-and-a5 half long. Where is the nature of the violation 6 identified and discussed on that position? 7 MS. STOKLEY: Well, in the first page, 8 on the first page in the first paragraph, it 9 says, ''Felts Field hired Richard Weber, a pilot, 10 but failed to add Mr. Weber in its random drug 11 and alcohol testing pool until April. They hired 12 him in 2008, and failed to add him into the 13 testing pool until April 2015," highlight all the 14 random selections that Webber was not included 15 in. So there were years of random drug testing 16 selection pools that this employee, a safety 17 sensitive employee was not included in. And

-- 18 JUDGE SULLIVAN: So that is your 19 rendition of the nature of the violation? 20 MS. STOKLEY: Your Honor, those are 21 facts that the Respondent has admitted to. 22

(202) 234-4433 JUDGE SULLIVAN: Okay.

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www.nea!rgross.com27 1 I'm edified, why would you not just simply state 2 in response to the Court's directive, here are 3 the factors that went into the nature of the 4 violation so that we all knew? 5 MS. STOKLEY: Your Honor, as 6 previously discussed in December, the EIR 7 contains privilege information, so some of the, 8 some of the analysis for the various factors, 9 they overlap with one another. So, it wouldn't 10 have been clear for me to just provide headings 11 like that. 12 It would have been very confusing, and 13 that's why I provided more of the paragraph 14 narrative explanation of how the calculation was 15 made in this case. 16 JUDGE SULLIVAN: Well, no one was 17 asking you to divulge privileged information 18 contained in the EIR, Counsel. 19 MS. STOKLEY: Well, Your Honor, it 20 would have been very repetitive. 21 JUDGE SULLIVAN: Well, it wouldn't 22 have been to those who didn't see the EIR and

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1 couldn't read it. So you're saying to me that 2 you didn't identify this as responding to the 3 Court's directive because it would have been 4 repetitive? 5 MS. STOKLEY: Your Honor, I'm saying 6 that I responded to the Court's directive, but I 7 didn't necessarily format the document as you're 8 suggesting you would preferred me to, but you did 9 not direct me to format the document in a 10 specific manner. 11 JUDGE SULLIVAN: Well, I asked you to 12 address those factors, specifically. 13 MS. STOKLEY: And I addressed the 14 factors specifically. 15 JUDGE SULLIVAN: And how did we know 16 that? 17 MS. STOKLEY: Well, if you read 18 through the calculation, it's very clear that 19 Felts Field did not place the safety sensitive 20 employee in the random selection for drug and 21 alcohol testing and they did not comply with 22 regulations for the drug and alcohol requirement.

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1 JUDGE SULLIVAN: Counsel, the 2 calculation that you've provided presumes that we 3 knew what you intended when you provided this 4 particular information. There's no information 5 provided in it to disclose what you thought this 6 information was applicable to or what factor you 7 were assigning it to. 8 So I appreciate these explanations 9 now, as I'm sure the Respondent appreciates them, 10 but it did not rise to the level of being fully 11 responsive to the Court's directive. That's 12 enough

--- 13 MS . STOKLEY: Well, Your Honor, I 14 respectfully disagree. 15 JUDGE SULLIVAN: I can, I can hear you 16 disagree. Let me ask you this. You've indicated 17 in your opposition, which was filed with the 18 Court, that you provided information, and this is 19 on page 3, second full paragraph. That you've 20 provided information in your calculation about 21 the Respondent's ability to absorb the proposed 22 sanction.

(202) 234-4433 Where in your calculation is that

NEALR. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com30 1 information provided? 2 MS. STOKLEY: Your Honor, in the 3 second paragraph, I lay out how that information 4 is provided. It says, where it goes, it starts 5 with "According to FAA order 2150.3B

-- 6 JUDGE SULLIVAN: And you're, you're 7 talking about your calculation, page 1? 8 MS. STOKLEY: Yes, on page 1, second 9 paragraph. I'm still on page 1. Sorry, if that 10 was confusing. Page 1, the second paragraph. 11 JUDGE SULLIVAN: And you don't read it 12 to me, but where exactly on page 1 does it say 13 that? 14 MS. STOKLEY: It's the first three 15 sentences, I outline what category the Agency 16 considers the Respondent to be in. And that's 17 how we determine their ability to absorb the 18 proposed sanction. 19 JUDGE SULLIVAN: And how is anyone to 20 know that? 21 MS. STOKLEY: Well, Your Honor, we, I 22 outlined that given the size of Respondent's

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com31 1 company, they're in category group 4, and based 2 on them being in group 4, this is the range of 3 civil penalty, this is the range of a civil 4 penalty that we can use in this specific case. 5 And so I'm not understanding how is that 6 confusing. 7 JUDGE SULLIVAN: Well, I'm looking 8 page 1 of your calculation. I see no information 9 there talking about how you considered the 10 Respondent's ability to absorb the proposed 11 sanction. 12 MS. STOKLEY: I didn't explicitly how 13 I, I didn't explicitly say, I consider 14 Respondent's ability to absorb the sanction. I 15 did not explicitly say those words, Your Honor. 16 But I said that "Under the FAA's classification 17 system, Respondent is a group 4 operator." And 18 so here is the range of civil penalty that we can 19 assess to the Respondent's violations of the 20 Federal Aviation regulations. 21 22 JUDGE SULLIVAN: Well, let's look at the citation you've provided. That's on page 1

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com32 1 of your calculation and you cite to Appendix B, 2 page B3 and B4. Do you see that there? Counsel, 3 do you see that? 4 MS. STOKLEY: Yes, Your Honor. 5 JUDGE SULLIVAN: Okay, and I'm going 6 to right to that particular citation, and I have 7 it in front of me. It's page B4, and it shows 8 group 4 and then it shows a range maximum, 9 moderate and minimum, as you have accurately 10 identified. But it does not provide me any 11 information to show that group 4 in any way, 12 shape or form has an relation to a factor of 13 what, how the Respondent's potentially ability to 14 absorb the sanction is incorporated into group 4. 15 So how is it possible that you think 16 that this obscure reference provides a direct 17 response to the Court's order to you to provide 18 that information? 19 MS. STOKLEY: Your Honor, maybe I 20 misunderstood your order, and if you would prefer 21 and the Respondent would prefer, I can provide a 22 supplemental calculation of the proposed civil

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1 penalty. I can provide it with headings and, you 2 know, highlight all, highlight how the Agency 3 utilized each applicable heading when calculating 4 the proposed civil penalties. 5 That was not clear to me from your 6 order but if that's what you and Respondent would 7 prefer to help clarify the calculation that I 8 have already provided and to help facilitate, you 9 know, this case, I can do that. 10 JUDGE SULLIVAN: Thank you for that 11 offer. Let's talk a little bit about a couple 12 other things. And I 'm going to turn to the 13 Respondent's motion again. Or, I'm sorry, the 14 supplemental brief, which was filed on January 15 31, 2017. 16 And in that supplemental brief on page 17 7' the Respondent asserts that there were 18 multiple sections, material that the Court 19 directed the FAA to provide, that the FAA did not 20 provide at all, and did not reference. And that 21 includes any decisional law that the FAA may have 22 considered, the consistency of the proposed

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com34 1 penalty to the type of violation, whether the 2 violation was voluntarily reported, whether the 3 Respondent took corrective action, what 4 corrective action may have been taken, other 5 mitigating or extenuating circumstances that the 6 FAA may have considered, and any exculpatory 7 evidence that the FAA may have had in its 8 possession. 9 The FAA

-- or the Respondent is saying 10 that your calculation that you submitted on 11 January 17, 2017 fails to include material on any 12 of those matters. Do you agree or disagree? 13 MS. STOKLEY: Your Honor, I disagree 14 with Respondent. 15 JUDGE SULLIVAN: Well, then let's take 16 a look at your calculation and you can show it to 17 me, because I would like to know where it is in 18 your calculation where you did address those 19 things. 20 MS. STOKLEY: Okay, Your Honor. 21 JUDGE SULLIVAN: So let's start with 22 decisional law.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com35 1 MS. STOKLEY: Your Honor, decisional 2 law is delivered as attorney work products, and 3 it's privileged information and so that 4 information was not provided in the Agency's 5 calculation of the proposed civil penalty. 6 JUDGE SULLIVAN: So even though the 7 Court directed you to provide

-- I'll just double 8 check and see if that was something that 9 specifically directed you to do. The Court 10 directed you to provide any decisional law it 11 utilized in part because the Court did not find 12 compelling your previous argument that decision 13 law was attorney-client privilege. 14 Your legal theories, as I have noted 15 in writing in my orders are fully available. You 16 should be able to tell someone what legal 17 authority you're relying upon. 18 MS. STOKLEY: Your Honor, I will 19 provide, I will provide that in my supplemental 20 calculation of the proposed civil penalties. 21 JUDGE SULLIVAN: Well, I have not 22 addressed your request to do so, but I think it's

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1 clear that in your calculation none was provided. 2 So let's talk aloout some of these other things 3 that the Respondent asserts are not included in 4 your calculation. 5 Looking at page 7 of the Respondent's 6 supplemental lorief and the chart that the 7 Respondent utilized, and looking at, just as an 8 example, items 10 through 16. Can you show me 9 where in your calculation any of that exists, 10 because you're asserting in your opposition that 11 you're fully compliant with the Court's order. 12 MS. STOKLEY: Sure, Your Honor, as far 13 as multiple violations and acts, it says, 14 starting on the first page, the second paragraph, 15 the last sentence it says, "In this case," it's 16 starting with that starts ''In this case, Felt's 17 Field," and it goes to the second page. Do you 18 see that sentence, Your Honor? 19 JUDGE SULLIVAN: I do. 20 MS. STOKLEY: And so, if you read 21 through that sentence, we highlight that, 22 Respondent allows this employee to operate over

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com37 1 60 Part 135, 135 flights on its behalf without 2 this employee being included in the random drug 3 and alcohol testing pool. 4 JUDGE SULLIVAN: Okay. 5 MS. STOKLEY: That explicitly states, 6 multiple violations and acts. 7 JUDGE SULLIVAN: Okay, and then what 8 about number 12. We talked about number 12. 9 Let's talk about 13. 10 MS. STOKLEY: Consistency of this type 11 of sanction. The last sentence, "Under the facts 12 and circumstances of this case, a maximum civil 13 penalty is consistent with the FAA's guidance in 14 FAA order 2150.3B." 15 JUDGE SULLIVAN: Okay. And what about 16 number 14, 15 and 16? 17 MS. STOKLEY: Your Honor, all of those 18 provisions consists of deliberative information, 19 so that information was not provided. 20 JUDGE SULLIVAN: That information was 21 specifically found to be disclosable, Counsel. 22 And you were directed to provide it.

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1 MS. STOKLEY: Well, Your Honor, your 2 order also stated that the Agency was not 3 required to provide privileged information and it 4 seems like you're asking me to disclose privilege 5 information to Respondent. And so your order 6 specifically states that, you know, the FAA's 7 investigators, investigative lawyer is 8 preliminary to the regulatory legal enforcement 9 actions and subject to review and modification. 10 It qualifies as protected under the attorney work 11 produce privilege and so there's an assumption 12 being made that every single heading contains 13 disclosable information, and it doesn't. A lot 14 of this information is privileged. That's why it 15 was not provided to Respondent. 16 JUDGE SULLIVAN: Counsel, as the Court 17 discussed with both you and the Respondent on 18 December 15, 2017 (sic), there's a bright line 19 distinction between what is provided to an 20 attorney for consideration prior to charging, 21 which may be privileged information, and what the 22 attorney or

(202) 234-4433 charging personnel

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www.nealrgross.com39 1 utilized in making an assessment and pursuing a 2 case. 3 So the Court never asked you in 4 December 15, 2016, excuse me, to disclose 5 privileged information. The Court directed you 6 to disclose what you've ultimately utilized as 7 your facts and circumstances supporting your 8 charge and the proposed assess, the proposed 9 penalty. So, the Court was never asking you to 10 disclose preliminary investigative work that you 11 considered and chose not to rely upon. 12 The Court directed you to provide all 13 the facts and circumstances that was in your 14 possession that you ultimately utilized and 15 relied upon. So, that includes and is not 16 limited to whether the violation was voluntarily 17 reported, whether the Respondent took corrective 18 action, and what corrective action had been 19 taken. And if you didn't have facts to support 20 utilizing those particular circumstances, it was 21 upon, incumbent upon you to say so. 22

(202) 234-4433 If you did have facts that include

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com40 1 that particular information, then it incumbent 2 upon you to say so, particularly since that 3 shapes whatever ultimate assessment you utilized 4 to support your charging document. 5 MS. STOKLEY: Your Honor, from my 6 understanding of your order, you requested that 7 the Agency provide a calculation of the proposed 8 civil penalty and to outline and explain how they 9 utilized the various headings in the enforcement 10 investigative report. That's what we provided. 11 Nothing in your order stated that if 12 the heading or provision of the EIR was not used, 13 that we needed to provide some type of statement 14 and say, this portion of the EIR was not 15 utilized, or was not ultimately, you know, 16 helpful in determining the final calculation of 17 the civil penalty. If you would like me to 18 provide that, I can but that was not clear from 19 your order. 20 JUDGE SULLIVAN: When you, well, I 21 don't think I'11 ask that question. Is there 22 anything else aside from your assertion that the

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com41 1 Court's order was not clear, is there anything 2 else that you would like to add to your arguments 3 that you believe that you complied fully with the 4 Court's directive? 5 MS. STOKLEY: No, Your Honor. 6 JUDGE SULLIVAN: Okay. Let me ask you 7 a couple questions if I may and these are a 8 little ancillary. Let's see if I can go to 9 those. I'd like to go to your opposition 10 statement for just a moment. And this is on the 11 top of page 2 of your opposition statement. You 12 indicate that the Court interpreted the 13 Respondent's supplement brief to include an 14 alternative motion for preclusion of evidence. 15 Do you see that in front of you? 16 MS. STOKLEY: Yes, Your Honor. 17 JUDGE SULLIVAN: Is there some 18 challenge that you are making at this point to 19 the Respondent's motion for preclusion on the 20 grounds that some how this Court creatively found 21 a motion that didn't exist? 22 MS. STOKLEY: No, Your Honor. I'm

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com42 1 just stating that the Respondent's motion was 2 titled, a supplemental motion

-- let me get it

-- 3 it's Respondent's motion to dismiss supplemental 4 brief. So from the title of Respondent's 5 document, the Respondent did not title their 6 document to include a motion for preclusion. 7 At the end in the last paragraph, you 8 know, on page 8, they add a provision that says 9 that they will like for the preclusion to 10 preclude admission of the EIR and any information 11 that stems from it. But that was not clear 12 throughout their whole motion. And so it was my 13 understanding that you interpreted this 14 supplemental brief of the Respondent's motion to 15 dismiss to include the alternative motion for 16 preclusion of evidence. 17 JUDGE SULLIVAN: Did you not also 18 interpret that language that's contained in the 19 supplemental brief as an alternative motion, or 20 did you see it as something else? 21 MS. STOKLEY: I interpreted this, the 22 Respondent's supplement brief to be just in

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com43 1 addition to their motion to dismiss. I thought 2 it was all one motion to dismiss, Your Honor. 3 JUDGE SULLIVAN: When the Court 4 pointed out to you on December 15, 2017 (sic), or 5 2016, that there was in fact an alternative 6 motion and provided you with time to respond, was 7 there some reason why you did not raise that 8 particular response at that time? 9 MS. STOKLEY: Your Honor, I'm 10 confused. Are you referring to in January 2017, 11 when we had the conference? 12 JUDGE SULLIVAN: Oh, I'm sorry. On 13 February 3, 2017. Yes, thank you, Counsel. 14 MS. STOKLEY: February

-- 15 JUDGE SULLIVAN: We had a, we had a 16 motion conference on February 3, 2017. The Court 17 fully addressed the motion to dismiss at that 18 time, and then noted that there had been an 19 alternative motion included in the supplemental 20 brief and gave you an opportunity to file a 21 written response to it. And you're saying to me 22 now that, that was an error of some kind?

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com44 1 MS. STOKLEY: No, Your Honor, I am not 2 saying that, and I definitely appreciate the 3 opportunity respond. I just did not, I mean 4 that's why I did not have a response prepared. 5 If I would have understood the Respondent's 6 motion to dismiss to be an additional, or 7 alternative motion for preclusion, I would have 8 provided an additional response. But I 9 gratefully appreciate the opportunity that you 10 provided me to respond on February 10, to this 11 alternative motion for preclusion. 12 JUDGE SULLIVAN: Okay, thank you. 13 Now, let's talk about one other matter. Let me 14 see if I can find it. I think, I think I already 15 have that. I think you already addressed that in 16 your oral argument. Is there anything else that 17 you would like to say in your opposition to the 18 Respondent's motion to preclude? 19 MS. STOKLEY: No, Your Honor. 20 JUDGE SULLIVAN: Okay. Mr. Wyborney, 21 anything else you would like to add in your final 22 reply?

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com45 1 MR. WYBORNEY: Two things, Your Honor, 2 one, your decision should be based on their 3 calculation of proposed civil penalty that they 4 submitted back in January, not their opposition. 5 Your decision should be based on the information 6 they provided in your order. That's clearly 7 unresponsive. 8 The second, we spent a long time going 9 over this information. Clearly if it goes to 10 sanction, we're entitled to it. The FAA was 11 ordered to disclose whether they considered it or 12 not, and if they did consider it, what it was. 13 We're not really interested in another chance for 14 the FAA to disclose what they consider. We would 15 like the preclusion of the evidence, at least the 16 information in the table that has a negative 17 response, it says, no. 18 For these reasons, Your Honor, we 19 respectfully request that the order to preclude, 20 at least the information that they did not tell 21 us whether or not they'd consider, be granted. 22 Thank you, Your Honor.

(202) 234-4433 NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com46 1 JUDGE SULLIVAN: Mr. Wyborney, let me 2 ask you a question based on what the FAA is 3 arguing. The FAA was arguing that there was a 4 level of confusion that is reasonable based on 5 the Court's order, and that the calculation on 6 its face does cover in a narrative form many of 7 these items. What is your response to that? 8 MR. WYBORNEY: Your Honor, your order 9 was not confusing. The transcript published on 10 January 10, I believe

-- I'm sorry, January 11, 11 starting on page 64 of your, of the transcript 12 where you went into the verbiage of your order 13 was very clear. 14 It talked about each title to, or each 15 heading that you wanted to hear about. I don't 16 need to read your order to you. It was very 17 clear. It runs from pages 64 through 67 yes, 18 no, 66. I was not confused, Your Honor. Even if 19 there was confusing, confusion, when your order 20 published on January 26, it conclude, it included 21 an outline of the headings in the footnote. 22 If

(202) 234-4433 the FAA truly wanted to be

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1 responsive, they should have immediately 2 responded that they didn't understand, put into 3 your footnote, I owe you these headings. The FAA 4 didn't do that. And then, that's pretty much all 5 I have, Your Honor. I didn't find your order 6 confusing at all. 7 JUDGE SULLIVAN: Okay. All right. 8 Thank you both very much for your arguments and 9 for your materials in that particular issue. I'm 10 going to grant in part the Respondent's alternate 11 motion for preclusion. 12 I will find that the FAA's calculation 13 addressed some matters, but clearly not all of 14 the matters that the Court specifically directed 15 the FAA to provide. And that is if great concern 16 to me. The FAA has in its opposition asserted 17 that it was in full compliance, but we 18 respectfully disagree particularly since the 19 FAA's manner in which it provided its calculation 20 did not make it easy, as it should have been for 21 either the Respondent or this Court to determine 22 whether or not it was even in compliance with

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com48 1 responding to the Court's directive. 2 In looking carefully at the FAA's 3 calculation, it is clear that FAA failed to 4 address certain items that were in the Court's 5 order, that the Court clearly identified to the 6 FAA who was present at the time that the order 7 was given, and that are contained in the 8 transcript of the proceeding. I'm not sure I can 9 find the FAA's assertion that it was confused, 10 that compelling or persuasive, particularly since 11 the FAA was present, had the ability to take 12 copious notes as any attorney would when the 13 Court is directing a litigant to do something 14 that it be asserting. 15 And when the Court was using the FAA's 16 own format provide in its EIR to help the FAA be 17 as successful as it possibly could in response to 18 the Court's directive. So the FAA's offer now to 19 have a do-over, to try again one more time to see 20 if it can provide the information, I think is too 21 late. One of the reasons that the rules of 22 practice are in place is so that each litigant

(202) 234-4433 NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 WWN.nealrgross.com49 1 can benefit from compliance or non-compliance 2 with the rule. 3 And I have had cases in other, have 4 had other cases where the FAA is adamant and 5 argues adamantly that once was enough when a 6 Respondent has failed to comply. And I have 7 agree with the FAA. And in this case, I cannot 8 do any less for the Respondent. So I will find 9 that the FAA provided some of the information as 10 directed by the Court but not all of it. And as 11 a result, the FAA should be precluded as 12 requested by the Respondent from introducing into 13 evidence certain matters regarding the 14 calculation of its proposed sanction. And I'm 15 going to identify what those are. 16 So, essentially pursuant to 14 CFR, 17 Section 13.220, subsection n, subsection 3, I am 18 precluding the FAA from admitting into evidence 19 at the hearing the following information in 20 support of its calculation of the proposed 21 $11,000 penalty. Whether or not it considered 22 the certificate holder's level of experience, the

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 WoNW.nealrgross.com50 1 attitude of the violator, the actions taken by 2 the Respondent or others, whether or not it or 3 it's violation history, any decisional law, the 4 ability to absorb sanction, whether the violation 5 was reported voluntarily, and any corrective 6 action that the Respondent may have taken. 7 The FAA is hereby precluded from 8 introducing into evidence any material regarding 9 those factors. The Respondent may introduce 10 those factors in its defense of case if it so 11 chooses and then FAA, of course, may cross 12 examine within the scope of the Respondent's 13 materials. But the FAA may not introduce on its 14 own behalf those, that information. In addition, 15 I will find that the FAA did not disclose any 16 mitigating or extenuating circumstances or that 17 it even consider such, and it is hereby precluded 18 from asserting that it did. 19 The FAA is also precluded from 20 asserting that it considered any exculpatory 21 evidence and chose not, and essentially cannot 22 present evidence to that, to that factor. The

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com51 1 FAA may present the evidence that it has provided 2 in its calculation, which I believe does address 3 the nature of the violation. It notes that there 4 was an operational carrier who engaged in 5 careless acts and that it identified some 6 aggregating factors that it utilized. 7 I will note that the FAA did not 8 identify any assertion or factor that it 9 considered that these acts were deliberate, and 10 the FAA may not now, or at the hearing assert 11 that it considered these acts as deliberate. The 12 FAA did however, in its calculation show or 13 discuss a degree of hazard particularly on page 2 14 of the calculation. It talks about the years of 15 non-compliance, the 60 Part 135 flights, and the 16 possibility that a flight crew member not engaged 17 in a random drug and alcohol years to could lead 18 to impaired performance of safety sensitive work. 19 And that's the discussion, however obliquely 20 about the degree of hazard. And I will find 21 that, that was enough. 22

(202) 234-4433 There was a discussion about the

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com52 1 certificates used, the Part 135 flights and the 2 flights flown, and so that certainly was 3 addressed as well. Any questions, Ms. Stokley? 4 MS. STOKLEY: No, Your Honor. 5 JUDGE SULLIVAN: Okay. Then let's 6 talk, and any questions, Mr. Wyborney? 7 MR. WYBORNEY: No, Your Honor. Thank 8 you. 9 JUDGE SULLIVAN: Then let's talk a 10 little bit about the rest of this case and to do 11 that we need to go back to our litigation 12 procedural order which was issued on April 14, 13 2016. And then I believe we also had another 14 order that was issued after that. Let's see if I 15 can find that very quickly. 16 It was issued on July 14, 2016, but 17 extended certain litigation deadlines. We had in 18 that particular order, the July 14, 2016 order 19 some information about the Respondent's expert 20 disclosure, the deadline was extended to August 21 22, 2016 with expert rebuttal report, extended 22 for, it's changed to September 7, 2016. We had

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com53 1 then a hope that we could stay with the original 2 litigation procedural deadlines for any and all 3 other matters. 4 We obviously have had a slide in that, 5 and it's because of that we rescheduled our March 6 2017 hearing date into June 2017, specifically-- 7 let me get to that

-- specifically, June 19, 2017 8 through June 23, 2017. So, Ms. Stokley, you're 9 the Complainant. Do you think that your client 10 will be ready to proceed that week for trial? 11 MS. STOKLEY: Yes, Your Honor. 12 JUDGE SULLIVAN: Mr. Wyborney, same 13 question to you, sir? 14 MR. WYBORNEY: Yes, Your Honor. 15 JUDGE SULLIVAN: Okay, we had 16 originally talked about a, let's see, a one-and17 a-half day hearing. In scheduling the hearing 18 for the Spokane District Court, I reserved three 19 days just to give us the maximum capability to 20 choose and I should note for both of you that the 21 Court in Spokane has some very strict rules about 22 availability.

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1 The building is locked down at 5:00 2 p.m. and everybody has to be gone by then. So, 3 it may be that we should reserve two full days 4 just to be on the safe side, and we have the 5 dates of the 20th, 21st and 22nd all available. 6 Ms. Stokley, starting with you, do you have any 7 preference for two days within that three day 8 window? June 20th and 21st work for me, Your 9 Honor. 10 JUDGE SULLIVAN: What if that, would 11 the 22nd also work in the event that you're 12 opposing counsel has some limitations? 13 MS. STOKLEY: I'm available on the 14 22nd, as well, Your Honor. 15 JUDGE SULLIVAN: Okay, but you prefer 16 the 20th and 21st? 17 MS. STOKLEY: Correct. 18 JUDGE SULLIVAN: Okay. Mr. Wyborney, 19 same question to you, sir? 20 MR. WYBORNEY: All three of those 21 days, the Respondent and both attorneys will be 22 available, Your Honor.

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1 JUDGE SULLIVAN: Okay, well, then 2 let's plan on the 20th and 21st for the hearing 3 in Spokane, Washington. And then let' s talk a 4 little bit about the deadlines that we still need 5 to meet. We completely avoided, or did not do 6 any kind of dispositive motions. And I'm 7 presuming at this point, there are none. Ms. 8 Stokley? 9 MS. STOKLEY: Your Honor, it is the, 10 we'd like to file a dispositive motion. 11 JUDGE SULLIVAN: Well, when do you 12 think you could file that? 13 MS. STOKLEY: Can I have to the week 14 of March 13? 15 JUDGE SULLIVAN: Well, we're going to 16 look at that for just a minute. Mr. Wyborney, 17 there's been a suggestion that dispositive 18 motions might be applicable in this case. What's 19 your, what's your response to that? 20 MR. WYBORNEY: If the Complainant 21 would like to file a dispositive motion, it's 22 certainly their right to do so.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 The middle of

www.nealrgross.com56 1 March, I suppose it'd be fine. I would defer to 2 the Court, Your Honor. 3 JUDGE SULLIVAN: When it is, if I set 4 a dispositive motion due date but say, March 10, 5 which is a Friday for the FAA, when do you think 6 you could have a response, or do you plan on 7 cross filing? 8 MR. WYBORNEY: Honestly, Your Honor, 9 I can't say whether I would cross file until I 10 see the substance of the motion. It would 11 probably take two weeks for a response. 12 JUDGE SULLIVAN: Okay. 13 MR. WYBORNEY: So maybe March 24. 14 JUDGE SULLIVAN: Okay. And then let's 15 say, April 7 for reply, whether cross motion or 16 not. And then, let's talk about a date for oral 17 argument. And folks, typically I have oral 18 argument two months prior to the hearing date, at 19 least because summary judgment motions for the 20 Court, as for the parties as well, take, 21 sometimes take more time than the hearing itself. 22 And I want to get a decision out to the parties

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com57 1 before you have to file witness lists and 2 exhibits. 3 So, let's look at our April 2017 4 calendars, just very briefly for a summary 5 judgment oral argument. And I need to look first 6 to make sure I'm going to be in the office. I'm 7 looking at the week of April 16, 2017. Ms. 8 Stokley, do you have time available that week? 9 MS. STOKLEY: Yes, Your Honor, I'm 10 free that whole week. 11 JUDGE SULLIVAN: Okay, Mr. Wyborney, 12 same question to you, sir? 13 MR. WYBORNEY: Just a second, I'm 14 checking my calendar. I 've something on the 15 17th. 16 JUDGE SULLIVAN: What about the other 17 days of that week? 18 MR. WYBORNEY: The other days of that 19 week would be fine, Your Honor. 20 JUDGE SULLIVAN: Well, let's plan on 21 April 19, 2017, and you're both, are you both out 22 on the West Coast? Ms. Stokley?

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1 MS. STOKLEY: Yes, Your Honor. 2 JUDGE SULLIVAN: And Mr. Wyborney? 3 MR. WYBORNEY: Yes, Your Honor. 4 JUDGE SULLIVAN: So would 1 : 30 work 5 again, 1:30 Eastern Time work for both of you for 6 Wednesday, April 19, 2017? Ms. Stokley? 7 MS. STOKLEY: Yes, Your Honor. 8 JUDGE SULLIVAN: Mr. Wyborney? 9 MR. WYBORNEY: Yes, Your Honor. 10 JUDGE SULLIVAN: Okay, and I'd like to 11 have you both plan for 90 minutes for oral 12 argument on summary judgment motions. So that 13 would be from 1:30 to 3:00 p.m. Eastern Time. 14 And then, let's talk about a due date for filing 15 witness lists and exhibits after that, just to be 16 on the safe side, because if summary judgment is 17 only granted in part or not at all, you'll still 18 need to have that time period. 19 So with a date for the first hearing, 20 first hearing date being June 20, 2017, let's 21 talk about, how about May 16, 2016 (sic) for the 22 exchange of witness lists and exhibits. Ms.

(202) 234-4433 NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com59 1 Stokley, would that be acceptable? 2 MS. STOKLEY: Yes, Your Honor. 3 JUDGE SULLIVAN: And Mr. Wyborney, is 4 that acceptable? 5 MR. WYBORNEY: Yes, Your Honor. 6 JUDGE SULLIVAN: Okay, and I'll note, 7 I'll use the May 16, 2017 deadline to apply any 8 motions in limine that you want to file in 9 advance as well. The information that's 10 contained in the original litigation procedural 11 order on page 4 and 5 regarding exhibits and how 12 to mark them in the examination of the, the 13 examination process at the hearing would all 14 remain the same, as would the court filing of 15 exhibits with the hearing docket after the 16 hearing is over. 17 With the summary judgment motions, I 18 will respectfully remind both of you that summary 19 judgment requires evidence to be submitted in 20 support of whatever arguments that you make. I 21 have some individuals who don't realize that and 22 so I'm trying to remind everyone, regardless of

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com60 1 your level of expertise that you do need to 2 submit admissible evidentiary documents in 3 support of your motions for summary judgment. 4 Ms. Stokley, any questions you have at this point 5 before the Court closes for today? 6 MS. STOKLEY: Yes, Your Honor, did you 7 set a date for dispositive motion? 8 JUDGE SULLIVAN: Yes, your dispositive 9 motion is March

-- I made sure, March 10, 2017. 10 And that would, and then the March 24, 2017, is 11 the date for any response or cross motion. April 12 7

-- and actually, Mr. Wyborney, I

-- no, I think 13 that will work out. March 10, March 24, 2017 for 14 any response. April 7, 2017 for any final reply 15 by the movement. So, does that help, Ms. 16 Stokley? 17 MS. STOKLEY: Yes, Your Honor. Hold 18 on, can you hold on one second. Okay. 19 JUDGE SULLIVAN: When you say okay, 20 are you saying that to me? 21 MS. STOKLEY: Yes, I'm sorry. Yes, 22 Your Honor, that works for me.

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1 JUDGE SULLIVAN: Okay. Mr. Wyborney, 2 is that acceptable? 3 MR. WYBORNEY: Yes, Your Honor. 4 JUDGE SULLIVAN: Okay. Mr. Wyborney, 5 turning to you, any last questions before the 6 Court concludes? 7 MR. WYBORNEY: No, Your Honor. I 8 think that's everything. Thank you very much. 9 JUDGE SULLIVAN: Thanks, you're very 10 welcome. Thank you all very much for your 11 materials and for your arguments today. I will 12 be issuing an order and I will get it out sooner 13 than I got the last one out. But you'll be 14 seeing that in the mail as soon as I can finish 15 writing it, so with that we can go off the record 16 and I wish you all a good day. Thank you. 17 (Whereupon, the hearing in the above18 entitled matter was concluded at 2:44p.m.) 19 20 21 22

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(202)234-4433 Neal R. Grossand Co., Inc. Washington DC 72

www.nealrgross.com73 CERTIFICATE

This is to certify that the foregoing transcript

In the matter of: Felts Field Aviation, Inc.

Before: U.S. Dept of Transportation Office of Hearings

Date: 02-15-17

Place: Teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

(202)234·4433 Court Reporter

NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON,D.C. 20005·3701 www.nealrgross.com