< i! 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

. FEDERAL AVIATION ADMINISTRATION 

"' ;' 

FEDERAL AVIAJION ADMINISTRATION, Co~p!a'inant, · ·· .,_,,_, ,,,. •·· · ' · · '' · 

RECEIVED 

FEB 2 7 2014 

HEARING DOCKET 

;<,''. 

vs. ·,._, Docket No. F AA-2012-0477 FAA Ca:seNo. 2011GL030070 

LIBERTYFOUNDA'ribN: " 

. · Respondent. · ·, r,/ i '1 ·:, ', i 

• Judge S'illli van 

RESP.ONSE TO MOTION FOR RECONSIDERATION 

On Febrn<¥Y 6, 2014, the Judge ,denied Respondent's request for a third continuance in - , - ·,-·-,-·'· ''' . ' . ; 

this case, which would have postponed tbe hearing until 2015. Respondent now requests 

reconsideration of that denial. That request for reconsideration should be denied. In the request 

for reconsiderf!tion; Respondent argues tha. t ( 1) for a variety of reasons, it is unfair to Respondent . - ' ' ' ' ' ' " ( 

to take Mr. Fowler's testimony in the form of a perpetuation deposition, rather than live at ,._ .-_!'''\I_<,'_ '.· ' -'' -:. ' ,. • •. ': 

heari11g, and tr,Js creates substantial prejudice to Respondent; (2) the Judge stated that Mr. 

Fowler ''a~cepted" a tour of active duty; and (3) no me will be ableto replace Mr. Fowler. 

As an initial matter, the FAA notes that Respondent raises nothing new and identifies no 

error in its Request for Reconsideration, and tbe request can be denied on that basis . 

. Re~ardless ofwhethec they have been made before, the arguments raised by Respondent - l ' . ' • !··. - ., . \- . 

do not form a bas;s for granting a continuance. Necessarily, any witness who presents testimony 

via deposition will incur all of the "unfairness" cited by Respondent, and the mere fact tbat a 

perpetuation deposition occurs before the hearing does not ipso facto require continuance of a 
hearing. Yet this is effectively what Respondent asks, since there is nothing noteworthy about 

Mr. Fowler's testimony in this regard. 

Indeed, the "unfairness" cited by Respondent is particularly not present in the instant 

litigation. Respondent asserts that Mr. Fowler's proposed testimony will be known to the FA 

prior to the FAA having called a single witness, but since Respondent already had to answer 

discovery requests concerning Mr. Fowler's testimony, and the FAA has already deposed Mr. 

Fowler on the only subject matter disclosed for his testimony, Mr. Fowler's testimony should 

already be known to the FAA at this point. Additionally, Mr. Fowler's only identified subject 

matter of testimony (his conversations with FAA Inspectors Alderman and Miller) is only 

pertinent to an affirmative defense. Respondent bears the burden of proof on an affirmative 

defense, and so there is no problem with Respondent having to present the first witness on this 

subject. And there should be nothing for Respondent to "anticipate" on this subject. 

Indeed, the only reason for Respondent to have to "anticipate" the FAA's evidence while 

presenting Mr. Fowler's testimony is if Respondent intends to follow through on its effort to 

present Mr. Fowler as an expert witness concerning aviation maintenance. As discussed in the 

FAA's Motion to Exclude, such testimony should not be permitted at all, as any such expert 

testimony would have been required to be disclosed a year ago.

1 Further, even if the Judge 

permits Respondent to present Mr. Fowler as an expert witness, despite Respondent's discovery 

violations, there should not be any particular difficulty in anticipating the testimony of the 

FAA's expert witnesses. Each of those expert witnesses was discbsed a year ago. Respondent 

has deposed each of those expert witnesses. And each of those expert witnesses has presented his 

opinions in detail in the form of an affidavit or declaration in support of the FAA's Motion for 

1 Respondent has also provided no detail on the proposed testimony, and has also not disclosed its basis for asserting 

that Mr. Fowler, who is not a mechanic, is an expert on B-17 maintenance. 
Summary Judgment. To the extent that the Judge permits Mr. Fowler to testify as an expert, 

Respondent has been put on ample notice as to the testimony of the FAA's expert witnesses, 

which Mr. Fowler seeks to rebut. 

Respondent also notes that at one point the Judge stated that Mr. Fowler "accepted" a 

tour of active duty, and reiterates that this tour of duty was not voluntary. See Request for 

Reconsideration 'If 3. Nothing in the Judge's Order indicated that the Judge believed the 

particular deployment in this instance to be the result of Mr. Fowler volunteering for this 

particular assignment, or that the Judge's Order was in any way based on such a belief 

Finally, Respondent asserts that there is "no one person" who can take over for Mr. 

Fowler. Request for Reconsideration 'If 4. Even if true, this is immaterial. Regardless of what 

person or persons Respondent may need to conduct its day-to-day operations without Mr. 

Fowler, the fact remains that (as the Judge noted) the Respondent will need to identify some 

other representative to interact with opposing counsel while Mr. Fowler is deployed, regardless 

of whether or not the hearing goes forward as scheduled. And Respondent has still not identified 

what it is about Mr. Fowler that means there is no other person who could possibly interface with 

opposing counsel during the hearing, even after Mr. Fowler has been available to opposing 

counsel for over a year and a half of this litigation, up to the week before the hearing. 

WHEREFORE, the FAA respectfully requests that the Judge deny Respondent's Request 

for Reconsideration, and affirm its original denial of Respondent's Motion for Continuance. 

J[:::-

Respectfully submitted this!!__ day of February, 2014. 

CHRISTOPHER R. S 

Attorney 

Office of the Regional Counsel 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Response in Opposition to Request for Reconsideration 

was sent: 

Original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl000 

One copy via certified mail ar1d facsimile to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Stuart A. Goldstein, P .A. 

7300 North Kendall Dr., Suite 380 

Miami, FL 33156 

Facsimile: (305) 400-0685 

tUmmm ~MODI,\ DONNA STA LEY -\ 

Legal Assistant 

Office of the Regional Coumel 

FEB 1 8 2014 

Dated