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: 

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THE HONORABLE J. E. SULLIVAN, 

U.S. Administrative Law Judge 

RECEIVED 

MAR 0 2 2017 

HEARING DOCKET 

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APPEARANCES: 

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 

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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 

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JUDGE SULLIVAN: Okay. All right, so 

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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, 2 017 

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 

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So we are back today to have some 

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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 

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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. 

2 0 Wyborney, you have in your January 31, 2 017 

21 supplemental brief filed an alternate request for 

22 relief, specifically to preclude the FAA from 

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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 

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factor, carelessness 

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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 

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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 

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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 

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MR. WYBORNEY: Yes, Your Honor. 

JUDGE SULLIVAN: You've provided a 

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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 

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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 

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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 

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JUDGE SULLIVAN: Okay. 

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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 

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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 

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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 

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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 

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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 

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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 

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MS. STOKLEY: Because it was provided 

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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 o 17 

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 

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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. 

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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 

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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 

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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 

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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. 

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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 

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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 

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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 

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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 

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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 

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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 

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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? 

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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? 

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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. 

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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 

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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 

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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 

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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 

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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 

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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 

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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 

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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. 

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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 

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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 : 3 0 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. 

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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 

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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 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC www.nealrgross.com 
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Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
69 

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Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 

Neal R. Gross and Co., Inc. 

Washington DC 

72 

www.nealrgross.com 
73 

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 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005·3701 www.nealrgross.com