< i! U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

.FEDERALAVIATION ADMINISTRATION "' ;'
FEDERALAVIAJIONADMINISTRATION,**Co~p!a'inant,** · ·· .,_,,_, ,,,. •··· ' · · '' · 

# RECEIVED FEB 2

## 72014 HEARING DOCKET

;<,''. vs. ·,._, DocketNo. FAA-2012-0477 FAA

### Ca:seNo. 2011GL030070 LIBERTYFOUNDA'ribN: "

. ·Respondent. · ·, r,/ i '1 ·:, ', i • Judge S'illli

## van
RESP.ONSE TO MOTIONFORRECONSIDERATION On Febrn<¥Y 6, 2014,the Judge ,denied Respondent's request for a third continuance in

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### . ' . ; this case, which would have postponed tbe hearing until 2015. Respondent now requests reconsideration ofthat denial. That request for reconsideration should be denied. In the request for reconsiderf!tion; Respondent argues tha.t (1) for a variety ofreasons, itis unfair to Respondent

. - ' ' ' ' ' ' " ( to take Mr. Fowler's testimony in the form ofa 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" atour ofactive duty; and (3) no mewill be ableto replace Mr. Fowler. As an initial matter, the FAAnotes thatRespondent raises nothing new and identifies no
error in its Request for Reconsideration, andtbe request canbe denied onthatbasis
.

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### Re~ardless ofwhethec they have been made before, the arguments raised by Respondent

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. do not form a bas;s for granting a continuance. Necessarily, any witness who presents testimony via deposition will incur all ofthe "unfairness" cited by Respondent, and the mere fact tbat a perpetuation deposition occurs before the hearing does not ipsofacto require continuance of ahearing. Yet this is effectively what Respondent asks, since there is nothing noteworthy about Mr. Fowler'stestimony inthis 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. Andthere should be nothing for Respondentto "anticipate" onthis 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 ofthose expert witnesses was discbsed a year ago. Respondent has deposed each ofthose expert witnesses. And each ofthose expert witnesses has presented his opinions in detail in the form ofan affidavit or declaration in support ofthe FAA's Motion for

1Respondenthas also providedno detail on theproposedtestimony, and has also not disclosedits basis for asserting thatMr. Fowler, who is notamechanic, is an experton 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 ofthe FAA's expert witnesses, whichMr. 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 thatthe Judge's Order was inany way based on such abelief Finally, Respondent asserts that there is "no one person" who can take over for Mr. Fowler. Request for Reconsideration 

### 'If 4. Even iftrue, this is immaterial. Regardless ofwhat 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 ofwhether or not the hearing goes forward as scheduled. And Respondent has still not identified whatit is about Mr. Fowlerthatmeansthere is no otherperson who couldpossibly interface with opposing counsel during the hearing, even after Mr. Fowler has been available to opposing counsel for over ayear and ahalfofthis litigation, up to the weekbefore the hearing. WHEREFORE, the FAArespectfully requests that the Judge deny Respondent's Request for Reconsideration, and affirm its original denial ofRespondent's Motion for Continuance. J[:::- Respectfully submitted this!!__day ofFebruary, 2014.

CHRISTOPHERR. S Attorney Office ofthe Regional CounselCERTIFICATE OF SERVICE I hereby certifythatthe foregoing FAA's Response in Oppositionto Request for Reconsideration was sent: Original and one copy via certified mail to: Federal AviationAdministration 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 LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 Stuart A. Goldstein, P

### .A. 7300 NorthKendall Dr., Suite 380 Miami, FL 33156 Facsimile: (305) 400-0685 

# tUmmm**~MODI,\** DONNA STA LEY -\ Legal Assistant Office ofthe Regional Coumel


### FEB 1 8 2014 Dated