In The Matter Of: 

### SERVED: JUNE 3, 2016 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2014-0867 BIRMINGHAM FLIGHT CENTER, INC. ) ) ) ) ) ) CaseNo. 2012S0090053 Respondent 

### ORDER GRANTING RESPONDENT'S MOTION FORALTERNATE SANCTIONS OnNovember 18, 2015, the Respondent, Birmingham Flight Center, Inc., filed the Respondent's Motionfor Sanctions ("Motion"), which included a request for alternate sanctions. On December 10,2015,the FAA filed a Response in Oppositionto Motion for Sanctions

**('~Response").** OnJanuary 15, 2016, the Respondentfiled the Respondent's Reply to the Strikingthe FAA's Response in Oppositionto Motion for Sanctions ("Reply"). On February 19,2016 an Order Strikingthe Respondent's Response and Denyingthe FAA's Motionto Compel was filed. On February 22,2016 an OrderDenyingRespondent's Motion to Dismiss and Reserving Ruling on Other Sanctions was filed. OnMarch 30, 2016 an Order SettingMotion Conference was filed. OnApril 13, 2016, the parties convened for a MotionConferenceto discuss the legal and procedural questions raised by the Respondent's Motion for Alternate Sanctions. That same day,

### on April 13, 2016, an Order Setting Deadline for Respondentto file Supplemental Material and Continuingthe Motion Conference was filed. 1 

### On May 2, 2016, the Respondentfiled a Supplemental BriefConcerning Respondent's Motion for Sanctions ("Supplement").2 

### On 1v1ay 5, 2016, the parties convened for a Second Motion Conference and presented oral argument on the Respondent's Motion for Alternate Sanctions. I. BACKGROUND A. Complaintand Answer On December 15, 2014, theFAA served a Complaint on the Respondent, a flight school operating in Birmingham, Alabama. In this Complaintthe FAA alleged that on orabout September 18, 2012, the Respondenthad operated apassengerflight for compensation or.hire without a certifiedpilot. Basedonthis fact allegation, the FAA asserted the Respondent had violated seven (7) FAA safety regulations, and proposed atotal civil penalty of$11 ,000. The Respondent filed a December 18, 2014 Answer and denied the allegations. B. Short Summary ofRespondent's Motion The Respondent'sNovember 18, 2015 Motion for Sanctions alleged that

**~~[f]rom** 

### the inception" ofthe FAA'sinvestigation in this case, the FAA had engaged in ''improper, sanctionable conduct." (Motion, 1,

**~I.)** 

### The Respondent urged either dismissal ofthe case or, alternatively, other sanctions as the courtdeemed appropriate. Because dismissal is not an available sanction under the FAARules ofPractice, the Respondent'srequestfor dismissal was

1This April 13, 2016 Order erroneously identiFied the date ofthe Motion Conference as "April 16, 20 16." (April 13, 2016 Order, 1.) This is aclerical error, given that the Conference was set for April 13, 2016 (see, March 30, 2016 Order Setting Motion Conference), and the April 13, 2016 Order was filed and served on the same day the parties convened for the Motion Conference (see, April 13, 2016 Order, I, and Cert. ofService).

· 2 During the April 13, 2016 Motion Conference, the parties were offered the opportunity to supplement the record

either in writing or by oral argument. The FAA did not file awritten supplement but did present oral argument at the May 5, 2016 Motion <;:onference. (April 13, 2016 Tr. 32, 6-19.) Page 2 of41

### denied on February 22,2016.4 

### However, as part ofits Motion the Respondent alternatively requested ''sanctions as the Court deems proper andjust." (Motion, 20.) During theApril13, 2016 Motion Conference, the Respondentwas directedto specify what alternate sanctions itwas requesting. In its May 2, 2016 Supplement (Supp. 7) and during the May5, 2016 Motion Conference, the Respondent asserted that the appropriate alternate sanction was to strike the FAA'spleadings. (May 5, 2016 Tr. 9.) Based onthe materials submitted, the Respondenthas alleged FAA wrongdoing from Septetnber 2012 through December 2014, which included all three distinct time periods involved in the FAA's safety enforcen1enf.action: 1. 

### Initial Investigation (September20,2012- March 7, 2013)

a. "Polluted"the perceptions and testimony ofDr. Long, a third-party witness (Mot. 9-13); and b. Failed to preserve relevant documentary evidence. 2. Formal Civil Penalty Action (March 8, 2013- December4, 2014)

a. Failed to preserverelevant documentary evidence. 3. Formal Adjudication (Novetnber 26, 2014- Present)5



### a. Obstructed discovery by contacting Dr. Long, a third party witness, and encouraginghim and his attorney to objectto or avoid responding to the Respondent's lawfully obtained Subpoena (Mot. 4-5); and b. Failed to provide full discovery pursuantto court orders6 

### (1\llot. 1-2; 5-6); and

4See February 22, 2016 Order Denying Respondent's Motion to Dismiss and Reserving Ruling on Other Sanctions.
5 During the April 13, 2016 and May 5, 2016 Motion Conferences, the Court identiFied the adjudication period as starting on December4, 2014, the date the Complaint was served. However, the adjudication period in civil penalty actions is triggered by the Respondent filing a Request for Hearing, which occurred on November 26, 2014. This is discussed in more detail infra, at III. Date ofCommencement ofCivil Penalty Action,§ (C).
6 Specifically, the April 7, 2015 Order Setting Litigation Dates and Procedures; and, the September I, 2015 Order Granting the Motion to Amend, Continuing the November 2015 Hearing to September 2016, and Granting Other Relief. Page 3 of41

### c. Deliberately withheld relevant, disclosable, documentary evidenc.e in its possession. (Mot. 3-4, 6-9). 

### C. ShortSummaryofFAA's Response In Response to the Motion, the FAA asserted that it had not engaged in most ofthe behaviorthat the Respondent has alleged. Alternatively it argued that even ifit were proved that it failed to follow some ofits own internal guidelines for investigation ofa civil penalty case, or that it failed to preserve certain evidence, such error(s) would not be grounds for sanctions or dismissal. (Resp., 

### 1.) Some ofthe Re.spondent's most serious allegations involved e-mails authored by FAA Inspector Yancey Rushton, who served as the primary investigator in the case. (Resp. Ex. A, 1 . ) 

### The FAA denied that Inspector Rushton had engaged in any improper conduct or comtnunications, either while discussing the allegations with Dr. Long, a third-party witness or when gathering testimonial evidence from Dr. Long. (April 13,2016Tr. 25, 10-13.)The FAA argued that InspectorRushton's destruction ofhis e-mail correspondence with Dr. Long had been part ofa "routine" purge ofe-mail (Resp. 5), and should not be deemed problematic, since these e-n1ails "did not add somethingto the evidence." (Resp; Ex.

**A~** 

### 5.) In response to allegations that it had failed to disclose evidence pursuant to court order, or obstructed the Respondent's attemptto gather evidence via subpoena, the FAA asserted that it had done neither. 

### II. LEGALAUTHORITYFORSANCTIONS In partial support for alternate sanctions, the Respondent cited to multiple sections in the FAA's Rules ofPractice, 14 C.F.R. Part 13, Subpart G ("FAA Rules"). The FAA Rules specifically address the impositionofsanctions in four (

### 4)different sections.7

### The three (3) sections applicable to the Motion for alternate sanctions are briefly outlined below, with some necessary discussion regarding several substantive errors contained in two (2) ofthe sections.

7 In one ofthese four (4) sections, the FAA Rules limit the Court's sanction authority. 14 C.F.R. § 13.205(b). This section was thoroughly addressed in the February 22, 2016 Order Denying Respondent's Motion to Dismiss and Reserving Ruling on Other Sanctions, and will not be repeated here. Page 4 of41A. Sanctions for Improperly Signed and Filed Documents (14 C.F.R. 

### § 13.207) Pursuantto 14 C.P.R. § 13.207(a), all filed documents must be signed. The signing ofany document is a certification8 that the documenthas been read and is in compliance with the rules ofpractice. 14 C.P.R. 

### § 13.207(a). ifany document is signed orcertified in violation of 14 C.F.R. 

### § 13.207, then six (6) different sanctions maybe considered for imposition. 14 C.F.R. 

### § 13.207(c)(1)-(6). B. Sanctions for ViolatingJoint Discovery Schedule (14 C.F.R. § 13.217) Pursuantto 14 C.F.R. § 13.217(±), a party who fails to comply with ajoint discovery schedule is subjectto sanctions. It should be noted, however, that the rule in this section is problematic, because it states in part that a party should "comply with a motion" orwith a ""discovery request": (f)

### Sanctionsforfailure to complywithjointschedule. Ifa party fails to comply with the administrative lawjudge's order establishing ajoint schedule, the administrative lawjudge may directthatparty 

### to complywith a motion [sic} to discovery request [sic} or, limited to the extent ofthe party's

### .failure to comply with a motion [sic j ordiscovery request, the administrative lawjudge may ... [sanctions listed]. 14 C.F.R. 

### § 13.217(£) (emphasis added). 

### It is well established that a motion is a formal request by a party in litigation, made to the court, seeking certain court-ordered relief. 

### See, e.g., 14 C.F.R. 

### § 13.218; Fed. R. Civ. P. 7(b)(1) ("'A request for a courtordermustbemade by motion..."). The motion itselfdoes not carry authoritative weight, nor may it bind an opposing party in any way. Steven Baicker-McKee, et al., 

### Federal Civil Rules Handbook, 332 (West Publishing 2012) ("A motion is a request to the court, usually submitted in writing, that seeks an order.") However, a court order issued after considering andruling upon a motion does carrybinding authority.

8 The signing party is certifying that s/he has made "reasonable inquiry" about the document(s), and "to the best of that person's knowledge, information, and belief' the document(s) are: ''consistent" with the rules ofpractice (14 C.F.R. § 13.207(b)(I)); warranted by existing law or by a good faith argument about existing law (14 C.F.R. § .I3.207(b)(2)), and not made for any improper purpose. 14 C.F.R. § 13.207(b)(3). Page 5 of 41Thus, the language of 14 C.F.R. § 13.217(t) contains error. Fortunately, in FAA civil penalty cases, the Federal Rules-and case lawconstruingthem-· may be used as guidance when needed.9 In the instant case, the language of 14 C.F.R. § 13.217(£) appears to synthesize certain components ofbothFederal Rule ofCivil Procedure 16 ("Rule 16"), 10 and Federal Rule ofCivil Procedure 37 ("Rule 37"). 11 A cotnparisonofthe similar language 12 between 14 C.F.R. § 13.217(f) and Rules 16 and 3 7 demonstratethatthe mostreasonable interpretation ofthe problematic text of 14 C.F.R. 

### § 13.217(f) is as follows: 

### (f) Sanctions for failure to complywithjointschedule. Ifa party fails to comply with the administrative lawjudge'sorderestablishing ajoint schedule, the administrative lawjudge may direct thatparty to comply with a motion to discovery request or, limitedto the extent ofthe party's failure to comply with a motion ordiscovery request 

### or orderdirectingdiscovery, the administrative law judgemay ... [sanctions listed]. 14 C.F.R. 

### § 13.217(f) (emphasis and alterations added) Utilizingthis interpretation, ifa violation of 14 C.F.R. 

### § 13.217 is found, the Court n1ay impose four (4) different sanctions: 

### 1. Strike thatportion ofa party'spleadings; 2. Precludeprehearing ordiscovery motions by that party; 3. Preclude admissionofthatportion ofa party's evidence at the hearing, or 4. Preclude that portion ofthe testimony ofthatparty's witnesses at the hearing.

9 When the FAA promulgated the Rules ofPractice in 1990, the FAA wanted to maintain a "less formal" administrative process. 55 Fed. Reg. 27563 (Jul. 3, 1990) (Discussion ofFinal Rule). As a result; it declined to adopt as controllingthe Federal Rules ofCivil Procedure. The FAA explained, however, that its own rules regarding discovery, although not as detailed as the Federal Rules, were "already roughly parallel... [to] the Federal Rules," and thus adding additional discovery safeguards, as urged by commentators, was unnecessary. !d. The FAA also noted that the Federal Rules-and case law construing.them-would be "instructive" in administrative civil penalty cases. !d. 10 Rule 16 provides guidance on setting up pre-trial discovery schedules.
11 Rule 37 identifies various sanctions for instances ofdiscovery non-compliance.
12 It should be noted that there are some differences between 14 C.F.R. § 13.217(f) and Rules 16 and 37. For example (not inclusive): Rule 16 requires the federal district court to consult with the parties and, "as soon as practicable" set a discovery schedule. Fed. R. Civ. P. 16(b)(I)-(2). In contrast, the FAA's Rules allows for two options: the Court may through its presiding authority directthe parties to confer and submit ajoint schedule, 14 C.F.R. § 13.205, orthe parties may voluntarily agree to confer without prior court directive andjointly file a proposed discovery schedule for court approval. 14 C.F.R. § 13.217(a)-(d). Page 6 of4114 C.F.R. § 13.217(f)(l)- (4). Further, any sanction(s), ifimposed, 13 should be ''limited to the extent ofthe party's failure to comply." 14 C.P.R.§ 13.217(f)(l). C. Sanctions for Failure to Complywith Discovery Orders (14 C.F.R. § 13.220) 

### ifnojointdiscovery schedule is entered in a case, then pursuantto 14 C.F.R. § 13.220, sanctions maybe imposedinthose instances when a party fails to actpursuantto a discovery order, orwhen a party fails to comply with a court's orderto compel discovery. 14 14 C.F.R. § 13.220(n). However, the language in this section is again problematic, and echoesthe problems in 14 C.F.R. § 13.217(f) as discussed above. (n) Failure to comply with a discovery order ororderto compel. Ifa party fails to comply with a discovery orderor an orderto compel, the administrative law judge, limited to the extentofthe party's failure to comply withthe discovery order

### ormotion to compel, may .... 14 C.F.R. 

### § 13.220(n) (emphasis added). Thus, the discussion and analysis regarding the language in 14 C.F.R. 

### § 13.217 is also applicable here. As a result, the problematic language of 14 C.F.R. 

### § 13.220(n) should be similarly interpretedto read: "to the extent ofthe party's failure to comply withthe discovery order·or 

### order to compel." Thereafter, the four (4) sanctions identified in 14 C.F.R. 

### § 13.220(n) are identical to the sanctions listed in 14 C.F.R. 

### § 13.217(t), and should also be "'limited to the extent ofthe party's failure to comply.".14 C.P.R. § 13.217(f)(1 ).

1.> The four (4) sanctions listed in§ 13. 217(t) are identical to those listed in§ 13.220(n). These sanctions mirror some ofthe sanctions identified in both Rule 16 and Rule 37, which are utilized when a party engages in discovery failures or non-compliance with court orders. Fed. R. Civ. P. J6(t), 37(b)-(t). 14 The provisions of 14 C.F.R. § 13.220 appearto synthesize majorcomponents ofRule 37 as follows (not inclusive): 1) failing to respond adequately to a discovery request, Fed. R. Civ. P. 37(a); 2) failing to comply with a court order directing discovery, Fed. R. Civ. P. 37(b); 3) failing to disclose or supplement discovery, Fed. R. Civ. P. 37 (c); and 4) failing to attend a deposition, provide answers to interrogatories, or allow physical inspection, Fed. R. Civ. P. 37 (d). Page 7 of41

### III. DATE OF COMMENCEMENT OF CIVIL PENALTY ACTION Part ofthe Respondent's Motion alleges improper conduct and communications by the FAA during its initial investigation stage, which occurred priorto the filing ofboth the FAA's March 8, 2013 Notice ofProposed Civil Penalty ("NPCP") and December 15, 2014 Complaint. As part ofits Response, the FAA generally asserted that discovery withheid or lost prior to "litigation commence[ment]" could not "form the basis for sanctions." (Resp. 1.) The FAA did not identify, however, what date it considered the "litigation"to have "commenced"for the purpose ofsanctionreview, nor

**~id** it identifythe date that it had issued its NPCP. (Resp. 1-18.) As a result, the various phases ofthis case, and when these phases "commenced" will first be identified, followed by a briefdiscussion ofthe scope ofcourt oversight. 

### A. September20, 2012 - FAA Investigation Pursuantto FAA Order 2150.3B, Chapter 2.3(e), an FAA civil penalty investigation must begin "promptly." In the instant case, the alleged September 18, 2012 incident was brought to the FAA's attention via a September 19, 2012 telephone message left by Mr. Bob Kent, an employee ofa business entitled Aviation Services Group. (Mot. Ex. C., Sept. 20, 2012 Record of Conversation). The next day, on September 20; 2012, FAA Inspector Rushton promptly began the FAA investigation when he met with Mr. Kent, pursuant to FAA Order2150.3B, Chapter 2.3(e). 17 

### B. March 8;

**201~** 

### - Formal Civil Penalty Action The "commencement" ofa formal FAA civil penalty action has previously been addressed by the FAA Administrator,19 and has also been discussed by this Court in other

17 That same day, on September20,2012, Inspector Rushton also met with Mr. Justin M. Lollar, the co-pilot of Respondent's September 18, 2012 flight. (Reply, Ex. A.) The next day, on September21, 2012, Inspector Rushton met with Dr. Long, a third party witness. (Mot. Exs. J and R;

**Reply~** Ex. A). 19 Priorto 1992, the FAA Administrator interpreted the term "commenced' in civil penalty proceedings, contained in 28 U.S.C. § 2462, to mean the issuance ofa notice ofproposed civil.penalty ("NPCP"). See 55 Fed. Reg. 27548, 27552 (Discussion ofFinal Rule). Then in 1992, when Congress enacted 49 U.S.C. § 4630I(d)(7)(C), it failed to reference the FAA's interpretation of"commenced' in the statute Instead, it utilized the word "initiated." Nevertheless, since 1992, the Administrator has interpreted the word "initiated' in 49 U.S.C. § 4630I(d)(7)(C) to mean the same as "commenced'- that is, to mean the issuance ofa NPCP. See RoyalAvionicsSystems, Inc., FAA Order No. 2002-6 at 7-8 (Apr. 16, 2002); and High Exposure, Inc., FAA OrderNo. 2003-7 at 8 (Sept. 12, 2003). Page 8 of41cases.20 In essence, to ensure compliance withthe FAA'stwo year limitations period (14 C.F.R. 

### § 13.208(d)), the issuance ofa NPCP, and not the complaint, is the "critical event" in commencing a formal civil penalty proceeding.21 In the instant case, the Respondent did not include a copy oftheNPCP in its Motion. Neither party specifically identifiedthe date thatthe FAA had issued its NPCP. (Resp. 1-18.) However, the Respondent did attach a copy ofthe Final Notice ofProposed Civil Penalty ("FNPCP") to its November26, 2014 Request for Hearing. This FNPCP indicated that the FAA had issued its NPCP on March 8, 2013. (Reg. 2.) As a result, the date the formal civil penalty action "commenced" was March 8, 2013. C. November26, 2014- Formal Adjudication While the FAA'sformal civil penalty action is initiated by issuing a NPCP (see, 14 C.P.R. 

### § 13.16(£) and 14 C.P.R. 

### § 13.208), the formal adjudication period is triggered when a Respondent exercises its right to adjudication by filing a request for hearing. See, PazAviation, Docket No. FAA-2014-0807, OrderDenyingthe Respondent's Motions to Dismiss (Sept. 18, 2015)("the complaint is filed as a responsive document, wholly dependent on a respondent requesting a hearing. See 14 C.P.R.§ 13.16(i)). Once a request for hearing is filed, the matter is referred for adjudication. See, Woo/pert LLC, DocketNo. FAA-2015-0211, ·Order Denyingthe FAA's Motion to Dismiss (April 30, 2015). In the instant case, onNovember26, 2014, the Respondent filed a Request for Hearing ("Request") with the FAA Hearing Docket, pursuant to 14 C.P.R. §13.16(h). Upon receipt ofthe Request, the FAA had twenty (20) days to file the original and one copy ofits Complaint with the FAA Hearing Docket. 14 C.F.R. §13.208(a). On December4, 2014 the FAA served its

20 See, e.g., MississippiAir Express, LLC, Docket No. FAA-20 14-0866, Order Granting the Respondent's Motion to Dismiss Action (July 22, 20 15); and, PazAviation, DocketNo. FAA-20 14-0807, Order Denying the Respondent's Motions to Dismiss (Sept. 18, 20 15). 21 See RoyalAvionicsSystems, Inc., FAA OrderNo. 2002-6 at 7-8 (Apr. 16, 2002); High Exposure, Inc., FAA Order No. 2003-7 at 8 (Sept. 12, 2003); 55 Fed. Reg. 27548,27553 (Jul. 3, 1990) (Discussion ofFinal Rule) (codified at 14 C.F.R. § 13.208(d)). Page 9 of 41Complaint. On December 10,2014 (i.e., fourteen (14) days afterthe Request was filed) the FAA filed a copy ofits Complaint, along with an attached copy ofthe Request, with the FAA Hearing Docket. As a result, the formal adjudication (or "litigation")phase ofthis action commenced on November.26, 2014, the date the Respondentfiied its Request. IV. 

### COURT OVERSIGHT OF ENTIREACTION It must be emphasized, however, that neitherthe date the NPCP was issued (i.e. March 8, 2013) northe date the Respondent filed its Request (i.e., November26, 2014) is dispositive in detern1ining the scope ofthe court's oversight ofthe case. As briefly discussed above, the two-year limitations period for issuance ofthe NPCP in civil penalty litigation satisfies the FAA's requirements that enforcement action occurs expeditiously afterthe date ofthe alleged violation. Thistwo yearperiod also allows all parties a meaningful opportunity to preserve evidence early in the action. 55 Fed. Reg. 27548, 27556 (Jul. 3, 1990) (Discussion ofFinal Rule). The FAA's adoption ofatwo-year statute oflimitations to ensure expeditious "litigationcommencement" has never meant, however, thatthe investigation period prior to issuance ofthe NPCP was exemptfrom court oversight in civil penalty adjudications.22 55 Fed. Reg. 27548, 27556-57 (Jul. 3, 1990) (Discussion ofFinal Rule) (codified at 14C.F.R. § 13.208(d)). 

### See also,PazAviation, DocketNo. FAA-2014-0807,.OrderDenying the Respondent's Motions to Dismiss (Sept. 18, 2015). When setting and explainingtheNPCP as the date ""commencing" the civil penalty action, the FAA Administratoremphasizedthat bothparties had responsibilities thatpreceded both the formal civil penalty action "commencement" date andthe adjudication ofthe case. The collection andpreservation ofevidence duringthe investigative stages ofthe case was a mutual responsibility for both the FAA and the respondent:

22 During the April 13,2016 Motion Conference, the FAA appeared to agree that the court's oversight ofthe civil penalty adjudication included the investigative stage ofthe action. (April 13, 2016Tr. 23: 13-25:8). Page 10 of41

### Thus, well before legal enforcement action is initiatedby the .issuance ofa notice [i.e., the NPCP] the respondent is usually aware ofcharges ... and that there may be a need to preserve evidence regarding a particular incident. 55 Fed. Reg. 27548, 27556 (Jul. 3, 1990) (Discussion ofFinal Rule). The FAA Administrator also assured the aviation community and the public that if adjudication ofthe action occurred, it was the FAA's goal to ensure "afair adjudication based on the facts and the law." !d. at 27556. Bothjudicial and appellate oversight ofthe civil penalty enforcement action would help prevent "overzealous prosecution" and be the "proof' offairness in FAA civil penalty actions. 55 Fed. Reg. 27548, 27551 (Jul. 3, 1990) (Discussion ofFinal Rule). The FAA Administratorwas "confident" that the independent administrative lawju_dges adjudicating civil penalty cases would "exercisetheir discretion appropriately andjudiciously to ensure fairness to the parties" in the proceedings. 

### I d. at 27549. Thus, the scope ofthe courfs oversight ofthe "fairness" ofthese proceedings begins at the inception ofthe civil penalty action and continues until an initial decision is issued. V. BRIEF OVERVIEW OF FAIRADVERSARIAL PROCESS As part ofits support for sanctions, the Respondent cited to multiple sections in the FAA 

### Rules, as well as to language contained in FAA Order 2150.3B (the FAA's published staff guidelines). To assist in this discussion, a briefoverview offair adversarial process, utilizing material in FAA Order2150.3B, the Federal Regist.er, andthe American BarAssociation's ("ABA") Model Rules ofProfessional Conduct ("Model Rules"), is provided. A. FAA's Goal ofFair and Reasonable Process Pursuantto FAA Order 2150.3B, Chapter 2.3(g), the FAA'senforcement processthroughout the proceeding-mustbe "fairand reasonable," and "perceived as fair by those subject to regulation" in orderto be "effective." FAA Order 2150.38, Chapter 2.3(g). This fairness policy includes: [T]heright ofan apparent violatorto be given objective, evenhanded consideration ofall circumstances surrounding the allegations before final action is taken. 

### It also requires good faith efforts to understand the apparent violator's position and take it into account. Page 11 of41FAA Order2150.3B, Chapter 2.3(g). B. FAA Goal- Objective, Unbiased, and Accurate Investigation When conducting initial investigations, FAA investigative personnel must

**~~gather,** and accuratelyandcompletely reportall facts ... in an unbiasedand focused manner." FAA Order 2150.38, Chapter2.3(e)(emphasis added). This includes an FAAinvestigator's responsibility to treat the respondent with objectivity and understanding, id., and interview and gather evidence from witnesses aboutthe respondent. 

### !d. at Chapter4.10(c)(l)-(6). During all phases ofthe investigation, the FAA investigatoris supposedto exercise "common sense and goodjudgment." 

### ld. at 4.1. The FAA goal is to conductinvestigationsthat are not only designed to be fair, butthat will also be perceived as fair, even by the accused. FAA Order 2150.3

### B, Chapter 2.3(g). C. FAA Goal- Unbiased Witness Testimony FAA investigativepersonnel are also tasked with obtaining unbiased witness statements. Unbiased statements arise from the witness's own perceptions and accurately reflect the witness's own beliefs and opinions, without manipulation orcoaching. For example, according to guidance in FAA Order2150.38, Chapter4.10, ifwitness statements are obtained by an investigator, such statements should identify the facts the witness "perceived by his orher senses." 

### !d. at 4.10(c)(5); While an FAA investigator may assist a witness in drafting and framing a staten1ent, the investigator should never "dictatethe content ofthe statement." 

### !d. at 4.10(c)(6). The investigator should neverdiscuss any possible sanctions regarding the alleged violation(s) \vith the\Vitness. 

### !d. at4.1

### 0(c)(3). Further, an FAA investigator should not promise confidentiality to a witness23 and s/he should affirmatively advise the witness that

**~·any** information provided may be used as evidence in subsequentenforcement proceedings." 

### !d. at 4.1

### O(c)(3).

23 In certain instances confidentiality may be promised to a witness, but only after the investigator has obtained legal review and authorization for such a request. FAA Order 2150.38, Chapter 4.10 (c)(3). Page 12 of41D. Model Rules - Fairness Requires Restraint in Speech The FAA Administrator'spublishedguidelines and goals for conducting fair investigations and obtaining unbiasedwitness testimony are almost identical to those responsibilities identified by the ABA in its Model Rules for lawyers and their staffs. As explained by ABA Model Rule 3.8, fairness in adversarial proceedings requires restraint in speech whi.le a case is pending, especiallyby government prosecutors and staff: 24 (f) ex.cept for staten1ents that are necessary to ir1forn1 the public ofthe nature and extent 

### ofthe prosecutor's action 

### and that serve 

### a legitimate 

### la\v enf()l'cenlent

**purpose~** [the prosecutor should] refrain 

### hom making extrajudicial con1n1ents that have a substantial likelihoodofheighteningpublic conden1nation ofthe accused .

. . and exercisereasonable care to prevent

**investigators~** lawenforcement personneL ernployees orotherpersons assisting or associated 

### 'vVith the prosecutor 

### in a criminal case

### fron1 making an

**extn~judicial** statement

### thatthe prosecutor \vould be prohibited fi·om making underRule 3.6 orthis Rule. Model Rules ofProfl Conductr. 3.8 (Am. BarAss'n 1983). This emphasis onprosecutorial

**restraint~** in orderto ensure fairness to the accused, extends to all persons working withthe government prosecutor:

I

### d. [Theprosecutor should also] exercisereasonable care to prevent investigators, law enforcementpersonnel, employees orotherpersons assisting orassociated with the prosecutorin a criminal casefrom making an extrajudicial statementthat the prosecutor would be prohibited from making underRule 3.6 orthis Rule.

E. Model Rules - Fairness Requires Prohibiting Misconduct In

**addition~** according to the Model Rules, fairness in litigation proceedings is achieved in part by identifying and prohibiting misconduct: [l] The procedure ofthe adversary system conten1plates that the evidence in a case is 

### to be 1narsha1led con1petitively bythe contendingparties. 

### Fair con1petit:ion in the adversary systen1 is secured by prohibitions against destruction or

24 While Rule 3.8 is specifically addressed to criminal actions, it is the Model Rule that most clearly identifies and explains the underlying and well-established principles offairness and objectivity in speech that govern all government prosecutions. Page 13 of41conceahnent of

**evidence~** irnprope:rly in:f1uencing witnesses, obstructive tactics in discovery procedure, and the like. Model Rules ofProfl Conduct r. 3.4 cmt. (Am. BarAss'n 1983). 

### VI. ALLEGATION OF "POLLUTING" THE WITNESS Forthis and all subsequent sections, the evidence and arguments by both parties have been fully considered. However, because ofthe volume ofmaterials submitted, only certain matters will be discussed. Aspartofits Motion, the Respondent asserted that the FAAhas "polluted" witnesses, including Dr. Long, a third partywitness. (Mot., 11.) In support ofthis assertion, the Respondent presented written e-mail communications, preserved by Dr. Long, 25 which codified some ofhis early cotnmunications with Inspector Rushton during the initial investigation ofthis case (i.e., September21, 2012 through October 13, 2012). During this time Inspector Rushton was seeking Dr. Long's cooperation in the FAA's investigation and attempting to persuade Dr. Long to provide multiple testimonial statements about the Respondent's alleged September 18, 2012 flight. (Mot. 9-13.) InspectorRushton was also instructing Dr. Long not to talk to, or share information with, the Respondent. 

### Did the FAA improperly "pollute" the perceptions and testimony ofDr. Long, a third-party witness? YES. Beginning on September21, 2012, InspectorRushton had multiple conversations with Dr. Long, and also exchanged multiple e-mails with him. The first conversation took place at Dr. Long's office on September 21, 2012. 26 (Mot., Ex. 

### J, Sept. 21, 2012 email.)According to Dr.

25 These e-mail communications were obtained by a Subpoena and Rider served onDr. Long by the Respondent. The Respondent's assertion that the FAA improperly attempted to obstruct and prevent this discovery is addressed infra, at IX. Allegation ofDiscovery Obstruction. 26 Dr. Long's records did not include notes from in person meetings ortelephone conversations, although the preserved emails did occasionally reference that such meetings and calls had taken place. Page 14 of41Long's recovered e-mails,27 a second conversation occurred at InspectorRushton's office between September21,2012 and October 3, 2012. Dr. Long provided his first statement to InspectorRushton on October 1, 2012 (Mot. Ex. J, Oct. 1, 2012), but Inspector Rushton declined it. He tnade no note that it had been proffered. He failed to preserve it in the FAA's investigative file. 28 Inspector Rushton thenencouraged Dr. Longto read reports on airplane crashes as he attempted to persuade Dr. Longto provide a different statement for the FAA investigative file. 

### By October 3, 2012, Dr. Longhad conversed with InspectorRushton several times, had read the materials29 InspectorRushtonhadgivento him, and was echoing InspectorRushton's condemnation ofthe Respondent (e.g., "Ihave zero tolerance for what's happening at BFC"). (Mot., Ex. 

### J, Oct. 3, 2012 3:37pme-mail.) On October 3, 2012, Inspector Rushton asked Dr. Long for a second statement to show (as Inspector Rushton characterizedit) howthe Respondenthad tried "to hide the nature ofthe flight." (Mot., Ex. 

### J, Oct. 3, 2012, 7:49am e-mail). As part ofthis e-mail request, Inspector Rushton advised Dr. Longthat "this is not a one time mistake 

### [by the Respondent]. This is a systemic issue and it needs to be corrected." (/d.) Shortly thereafter, InspectorRushton asked Dr. Long to provide a copy ofthe "fake offer" givento Dr. Longby the Respondent. (Mot., Ex. 

### J, Oct. 3, 2012, 8:21 am e-mail). That same day, Dr. Longprovided a short supplemental statement. (Mot., Ex. 

### J, Oct. 3, 2012 Dr. Long

27 Accordingto the ernails, Inspector Rushton met with Dr. Long several times, and also cqlled him on the telephone. These meetings and phone calls were not recorded, and the record remains incomplete regarding the substance ofsuch communications. 28 During the May 5, 2016 Motion Conference, the FAA initially excused this lack ofpreservation in the FAA's investigative file by asserting no harm had occurred, because the missing October I, 2012 Statement had simply been a duplicate ofthe subsequently preserved October 12, 2012 Statement. When asked why a second statement was necessary, ifit was only a "duplicate" ofthe first statement, the FAA proffered that the October I, 2012 Statement had been an "incomplete duplicate" ofthe October 12, 2012 Statement. (May 5, 2016 Tr. 98:4-12) 29 It is unclear from the recordwhetherthe "FAA report" (440.16 KB) that Inspector Rushton e-mailed to Dr. Long on October 1, 2012 (Mot., Ex. J, Oct. 1, 2016, 1:23 pm e-mail and attachment) was part ofthe "airplane crash" material that Inspector Rushton recommended to Dr. Longto read (Mot., Ex. J, Oct. 3, 2016,3:37 pm e-mail), or something else. Page 15 of41Statement). Upon receipt ofthis supplemental statement, Inspector Rushton e-mailed Dr. Long, and continued to disparage the Respondent: We all make mistakes, butpurposeful deception that puts others [sic] lives and assets at risk will not be tolerated. That is what has occurred here. This was not an innocent case ofa tnisunderstanding. BFC knew what they were doing .... Mot., Ex. 

### J, Oct. 3, 2012, 3:33pme-mail. On October 5, 2012, InspectorRushton e-mailed Dr. Long and identified for him specific fact evidence the FAA needed in orderto help prove the accusations against the Respondent. (Mot., Ex. 

### J, Oct. 5, 2016 2:15pme-mail.) Dr. Long immediately responded by e-mail with short answers, responsive to the information InspectorRushton sought. (Mot., Ex. 

### J, Oct. 3, 2016 2:50 pm and 2:56pm e-mails.) However, the EIRdisclosed to the Respondent makes no mention of this exchange. Instead, the EIR contains a one-page document entitled "Investigation Notes.'' (Mot., Ex. C, Oct. 3, 2016.) The Investigation Notes identify ''Alan Long" as the witness, and contains a handwritten statement- but these "Notes" were not signed ordated by Dr. Long, and do not identify who actually wrote the material. (/d.) In his multiple e-tnails with Dr. Long seeking a "complete" statement, Inspector Rushton repeatedly maligned and vilifiedthe Respondent. Forexample (not inclusive), Inspector Rushton told Dr. Long: 1. The Respondent was willing to "burn ... mutilate· ... and injure" innocent people solely in pursuit of"the almighty dollar." (Mot., 10-11; Ex. J, Oct. 3, 2016,3:33 pm e-mail); 2. The Respondent's actions were "careless," "disrespectful," "self-centered," "calculated," and "deceitful." (Mot. 12; Ex. 

### J, Oct. 12, 2016, 11: 10 am e-tnaiI); 3. The Respondentwas a repeat offender (i.e., "this is not his first rodeo"). (Mot., Ex. J, (Mot., Ex. J, Oct. 12,2016, 10:57 am email); 4. The Respondent had acted wrongly and willfully towards Dr. Long ("He played with your assets and your family's safety"). (Mot., Ex. 

### J, Oct. 12,2016, 10:57 am e-mail); Page 16 of415. The Respondent needed to be "taken down." (Mot., Ex. J, Oct. 12,2016, 10:57 am email); 6. The Respondent wouldrepeatthe offense(s) ifthe Respondent was allowed to ''walk". (Mot., Ex. J, Oct. 12, 2016, 10:57 am e-tnail); 7. Dr. Longneeded to think about his "wife," "kids," "practice," and "family" and "help stop" the Respondent (Mot., Ex. 

### J, Oct. 3, 2016, 8:21 am e-mail). On October 11, 2012,InspectorRushton e-mailed Dr. Long again, in a follow-up to an unrecorded conversation he had had the previous day (i.e., October 10, 2012) with both Dr. Long and an FAA supervisor (unnamed). (Mot., Ex. J, Oct. 11,2016, 3:08pm email). In this October 11, 2012 e-mail, InspectorRushton informed Dr. Longthat Dr. Long's three (3) prior statements (not further identified) were lacking in "key details." 

### (!d.) As a result, he asked Dr. Long to answer thirteen (13) additional and specific fact questions in writing, based on the unrecorded October 10, 2012 conversationbetween Dr. Long and the two FAA employees, because "the better case I can make on paper, the more likely he will settle and all ofthis will be closed." (!d.) The next day, on October 12, 2012, Dr. Long provided a fourth (4t11) statement. Inspector Rushton accepted this fourth statementas "relevant"to the proofofthe FAA's case, and added it to the FAA's investigative file. (Mot., Ex. J, Oct. 12,2016, 6:04pm e-mail and attached Statement). 1. FAA's "No Harm" and OtherArguments In response to this recovered e-mail evidence, the FAA acknowledged that Inspector Rushton may not have kept "an open mind" as recommended by FAA Order 2150.38, but argued that this did not give· rise to a sanctionable offense (May 5, 2016 Tr. 89:9-16), and that "noharm" had occurred to anyone. (April 13,2016Tr. 25:7-8.) Alternatively, the FAA blamed the Respondent for InspectorRushton's communications, and minimized and excused Inspector Rushton's conduct and statements. Forexample, accordingto the FAA, it was the Respondent's fault that the FAA "had to engage" in these e-mail communications with Dr. Long. (Resp. 11, fn. 4). The FAA further Page 17 of41arguedthat InspectorRushton's e-mail communications were necessary in orderto "encourage" Dr. Long to give a "full accounting" ofhis experience with the Respondent. 

### (!d.). Thus, Inspector Rushton's multiple e-mail communications to Dr. Long should simply be viewed as "asking a witness to provide a full and complete statement ofevents." (Resp. 12.) Inspector Rushton echoed this position in his testimonial statement, by describing his e-n1ails as "the emails where Iencourage Dr. Long to tell the whole truth ...." (Ex. A 1**~** 5.) This Court expressed concern aboutthe FAA's arguments, during both the April 13,2016 and May 5, 2016 Motion Conferences. In response, the FAA argued: 1) the Court had sua sponte raised a cotnpletely new issue when it referenced the issue of Hwitness**polluting'~** (as alleged by the Respondent) as witness tampering,33 and, 2) the Court's use ofthe word "tampering" was erroneous, because no criminal witness tampering had taken place. 2. Witness Polluting Did Occur This Court agrees that Inspector Rushton did not engage in acts an1ounting to criminal witness tampering. However, the fact that the polluting ortampering ofDr. Long did not rise to a level ofa chargeable crime36 is not dispositive ofthe issue. Dr. Long's preserved emails demonstrate that Inspector Rushton engaged in witness tampering. He deliberately and persistently condemned and vilified the Respondent in an attempt to shape Dr. Long's perceptions, obtainhis cooperation, and influence his testimony about the Respondent's alleged September 18, 2012 violation. He also provided informationto Dr. Longto try and shape his testimony. Based on Dr. Long's responses, Inspector Rushton was successful in all those efforts. In his zeal to "catch" a possible safety offender, Inspector Rushton abandoned the FAA Administrator's public promisethatthe FAA's safety enforcement program would be

33 Tamper is legally defined in part as follows: "Tamper. To meddle so as to alter a thing,**e~pecially** to make illegal, corrupting orperverting changes; as, to tamper with a document or a text; to interfere improperly; to meddle: to busy onese(frashly..." Tamper, Black's Law Dictionary, (5th ed. 1979)(emphasis added). In some instances, witness tampering can be so egregious (e.g., murder, kidnap, bribery, etc.) that it will result in federal criminal charges. 18 U.S.C. § 1512 (2014). 36 In some instances, witness tampering can be so egregious (e.g., murder, kidnap, bribery, etc.) that it will result in federal criminal charges. 18 U.S.C. § 1512 (2014). Page 18 of41administered fairly and objectively.37 He did notconducthis investigation with any "good faith"
or "even-handedconsideration" oftheRespondent'sposition or circumstances. Instead, Inspector Rushton rushed tojudgment, and repeatedly expressed condemningjudgments and opinions aboutthe Respondentwith Dr. Long. 38 Inspector Rushton persuaded Dr. Long to share his vilification ofthe Respondent, and to provide information as shaped and directed by the FAA. This is a "polluting" of, ortampering with, a witness. Itis deliberately altering and shaping the perceptions and testimony ofa potential witness to suit one's own goals. Such ta1npering destroysthe credibility and value ofany testimony such witness might offer. In short, InspectorRushton tampered with the perceptions, beliefs, and testimony ofDr. Long, a third party witness. He destroyed both the value ofDr. Long as a credible witness, and also demonstrated his own lack ofobjectivity and fairness. InspectorRushton's statements, as preserved by Dr. Long, are prohibited by both FAA Order 2150.3B and the ABA Model Rules.45 Inspector Rushton's conduct not only destroyed Dr. Long's potential as an evidentiary witness, but it undermined any belief, perception, or hope that the Respondent (orthepublic) mighthave had thatthe Respondent would be treated fairly in this particular enforcementprocess.46 Through Inspector Rushton, the FAA's conduct was improper, harmful, and should not be excused or minimized. Sanctions should be imposed.

37 While Inspector Rushton did occasionally identify due process standards as applicable ( Mot., Ex. J, Oct. II, 2016, I:27 pm e-mail ("we also live in America where people are innocent first (thankfully) and the burden ofproof is on me not them"), he did not role-model or implement these standards in his investigation process.

· 18 It is well established that such conduct is prohibited. An attorney and his staffmust vigilantly practice restraint in any trial proceeding (civil or criminal), in order to ensure fairness to the opposing party and counsel. While a case is pending, neither a lawyer nor any member ofhis staffshould "state a personal opinion as to thejustness ofa cause, the credibility ofa witness, [or] the culpability ofa civil litigant." Model Rules ofProfl Conduct r. 3.4(e).
45 The ABA Model Rules specifically recognizes and discusses the "unique dangers ofimproper extrajudicial statements" for government prosecutors and their investigators, and provides specific direction on how to avoid such error. See, e.g., Model Code 3.8, Comment 6. F'or example. in government prosecutions, a pmst:cutor i<:. tasked vvilh the responsibility "to exercise reasonable care'' to prevent both lawyers and non-lawyers "assistingor associated'' \Vith the prosecutor's office ·'ti·om making improper

**extn~judicial** statements. even when such persons are not under the direct supervision ofthe pmsecutor." Model Rules ofProf'IConduct r. 3.8, cmt. 6.

46 As noted by the Respondent (Supp. 5), Inspector Rushton's condemnation ofthe Respondent, as represented in his e-mail communications, would have also influenced, overtly and subliminally, anyone else in the FAA or elsewhere with whom he shared his views orwho read his e-mails or investigative communications. Page 19 of41VII. 

### INITIAL INTERFERENCE WITH RESPONDENT'S RIGHT TO DISCOVERY The Respondent generally alleged the FAAhad engaged in discovery obstruction throughout the proceedings. Although not specifically highlighted by the Respondent in its Motion, the email records preserved by Dr. Long and produced by the Respondent in support of sanctions also demonstrated that Inspector Rushton promised Dr. Long certain confidentiality protections ifhe helpedthe FAA, and also instructed Dr. Long not totalkto, or share information with, the Respondent.

· As noted earlier, the FAA's investigation began on September20, 2016, and Dr. Long was interviewed for the first time by InspectorRushton on September 21, 2016. As noted above, during this critical time InspectorRushton was shapingDr. Long's opinions and perceptions,47 as well as prmnisingto "keep"Dr..Long "out"oftheproceeding. (Mot. Ex. 

### J, Oct. 3, 2016, 8:21 am e-mail.) Although Inspector Rushton testified in 2016 that he had never offered any pron1ise of confidentiality to Dr. Long (Resp. Ex. A, 2

**~** 6), the Respondent's 2012 evidence frmn Dr. Long demonstrates that InspectorRushton had indeed made such a promise: Even ifyou signed something, I give you my word that you will be left out ofthis...I know you don't wantto be involved and Iwill keep you out ofthis[.] Mot., Ex. 

### J, Oct. 3, 2012 e-mail. One day later, on October4, 2012, Inspector Rushton asked Dr. Long to "keep all ofthis to yourselfto help us." (Ivlot. Ex. J, Oct. 4, 2016, 3:36pn1 en1ail.) He also told Dr. Long thatthe Respondent "doesnot need to knowwhat we know." (Jd.) In response, that same day, Dr. Long

47 Inspector Rushton's negative opinions about the Respondent may have been shared with Dr. Long as early as their first meeting. It is noteworthy that immediately after Dr. Long's first conversation with Inspector Rushton about the Respondent on September 21, 2016, Dr. Long asked Inspector Rushton to recommend "some people at KBHM" who could be "good alternatives" (i.e., otherthan the Respondent's business) where Dr. Long could take flight lessons and hangar his airplane. (Mot. Ex. J, Sept. 21, 2016, I:41 pm email.) Page 20 of41confirmed with InspectorRushtonthathe would refuse to speakto the Respondent aboutthe FAA investigation.48 (Mot. Ex. 

### J, Oct. 4, 2016, 3:53pme-mail.) Six (6) days later, on October 10, 2012, InspectorRushton sent a LetterofInvestigation ("LOI'') to the Respondent, stating that an FAA investigation was pending regarding the alleged September 18,2012 flight. (Mot., Ex. C.) This LOI was the Respondent's first notification that
an FAA investigation had already commenced, and that the Respondent would need to begin preserving evidence for future litigation.49 Upon receipt ofthe LOI, the Respondent attempted to discoverand preserve evidence, by contacting Dr. Long and asking to speak to him about the FAA's allegations. (Mot. Ex. 

### J, Oct. 4, 2016, 3:53pme-mail.) Dr. Long did not respondto the Respondent. Instead, Dr. Long forwarded the Respondent's emailto InspectorRushton (Mot. Ex. J, Oct. 12, 2016, 9:27am email), and reaffirmed to InspectorRushton that he would not speak to the Respondent. (Mot. Ex. J, Oct. 12, 2016, 9:.30am email.) Inspector Rushton responded immediately. (Mot. Ex. 

### J, Oct. 12,2016, 10:57 pm e-mail.) Although InspectorRushton first told Dr. Longto "do whatever you need," he then urged Dr. Long "to remember" that the Respondentwas guilty and knew "thehammer is about to fall."(/d.) Inspector Rushton encouraged Dr. Longto believe that the Respondent had deliberately endangered Dr. Long's wife and family. 

### (ld.) The Respondent had "played" with safety ofDr. Long's family, because the Respondent was greedy and selfish and guilty. (ld.) This is about greed, and a complete lack ofconcern for others and safety all in the interests.ofmaking a buck. He proved to methat he doesn'fcare and that's why he needs to be taken down. Mot. Ex. 

### J, Oct. 12,2016, 10:57 pm e-mail.

48 Dr. Long's email records only address the initial investigation period in 2012. However, it appears from the case record that Dr. Long maintained his silence, and produced his emaiIcorrespondence for the Respondent in November 2015 only after: I) the Respondent obtained and served Dr. Long with a subpoena and rider; and 2) Dr. Long had consulted with multiple attorneys about whether or how he should respond to the Respondent's subpoena.

49 See, In the Matter of RoyalAvionics Sys., Inc., CP99WP0021, 2002 WL 1042303, at *3 (Apr. 15, 2002) ("Although a letter ofinvestigation does not satisfy the limitation period set forth in 49 U.S.C. §4630I(d)(7)(C) or in 14 C.F.R. § 13.208(d), it does notiFy a respondent that preserving evidence may become necessary.'' (citing In the Matter ofWerle, FAA Order No. 97-20 at 8-9 (May 23, 1997)). Page 21 of41InspectorRushton also subtly warned Dr. Longthatthere could be negative consequences ifDr. Long spoketo the Respondent: Do what you want and I don'tcare, but understand this, this is not his first rodeo. Ifhe walks he will do this again to somebody elsejustlike you. !d. Thirteen (13) minutes later, Inspector Rushton sent a second emailto Dr: Long, asserting that he was

**~just** trying to protect" Dr. Long and everyone else. He then characterized the Respondent as a guilty party who was "careless, disrespectful and self-centered" and "calculated and deceitful." (Mot., Ex. J, Oct. 12, 2016, 11:10pm email). The next day Dr. Longe1nailed Inspector Rushton and assured him: "We're all cool. Itotally agree with everything in your emails and voicemai1."50 (Mot., Ex. J, Oct. 13, 2016, 6:13pm email). As demonstrated by Dr. Long'spreservedrecords, InspectorRushton interfered with the Respondent's right to discovery during the initial investigation. He precluded the Respondent from obtaining evidence by advising Dr. Long to keep his potential testimony about the Respondent secret (Mot. 11; Ex. 

### J, Oct. 4, 2016, 3:36 am email), and successfully persuading Dr. Long to refuse to speak to the Respondent. (!d.) In addition to the direct harm caused to the Respondent in this particular case, Inspector Rushton's conduct is in direct conflict with the FAA Administrator's published goals offairness for the civil penalty enforcementprogram. The FAA in this case has failed to abide by the fundamental concept, well-established in Americanjurisprudencethat an accused person is innocent until proven otherwise, and that such person has the right ofaccess to discovery. This concept was not only adopted by the FAA Administratorwhen he established the safety

50 Neither Inspector Rushton nor Dr. Long kept atelephone record log regarding Inspector Rushton's voicemail message. It must be presumed, on behalfofthe Respondent, that the voicemail message contained similar condemnations ofthe Respondent and warnings about communicating with the Respondent. Page 22 of41enforcementprogram and created its guidelines, itis also codified in both FAA Order 2150.3B and inthe ABAModel·Rules.52 Sanctions shouldbe imposed. 

### VIII. ALLEGATION OF PHYSICALEVIDENCEDESTRUCTION The Respondent's allegation ofphysical evidence destruction54 spans boththe initial investigation time period (September20, 2012- March 7, 2013) and the enforcement action time period (March 8, 2013

- December4, 2014). In its Motion, the Respondent alleged that the FAA destroyed relevant documentary evidence when Inspector Rushton failed to preserve his e-mail communications with Dr. Long, which included (but is not limited to) earlier witness staten1ents provided by Dr. Long. In response, the FAA acknowledged that Inspector Rushton had destroyed and/or lost certain electronic investigative material, including all (ormost) ofInspector Rushton's e-mail correspondence with Dr. Long. (Resp. 2). The FAA first argued that Inspector Rushton's e-mail communications were notrelevant, and so their destruction or loss was not relevant. Alternatively, the FAA argued that even ifInspector Rushton's e-mail communications were relevant to the case, their destruction was inadvertent. As part ofthis argument, Inspector Rushton testified thathe had routinely and periodically deleted electronic information from his local computerdatabase before he transferred to the FAA's Denver, Colorado Field Office in the "fall of2013" because ofsize limits. (Resp. Ex. A, 1

**~** 4.) He thought he.had saved all ""relevanf' material. (Resp. Ex. A.). The FAA argued.that no sanctions should be imposed, because the deletion ofthe electronic evidencehad been routine and inadvertent. 

### A. FAA's Goal- Preservation ofRelevant Evidence According to the FAA'spublishedenforcement guidelines, when a safety enforcement action is initiated, the FAA office conductingthe investigation '"obtains an Enforcement

52 See, e.g., Model Rules ofProrl Conduct r. 3.8 cmt. ("[I]!\ prosecutorhas the responsibility ofa rnlnistcr

## or ,iustice and not simply that ofan advocate. ·rhis responsibility carries with it specitic obligations to see that the defendant is accorded proceduraljustice...'') 54 This accusation ofdestroyed evidence is often referred to as "spoliation" ofevidence. Jay E. Grenig & Jeffrey S. Kinsler, Federal Civil Discovery andDisclosure, § 16: I (3d ed. 20 15). · Page 23 of41Investigative Report" ("EIR"), which "initiates"the EIS database record55for the case. (FAA Order 2150.3B, Chapter9.3(a).) The EIRis the critical "means for documenting, assembling, organizing, and presenting all evidence and otherrelevant information obtained during an investigation." FAA Order 2150.3B, Chapter 8.1. An.FAA investigator is required to "gatherall material, relevant evidencethat eitherproves ordisproves the potential violation." FAA Order 2150.3B, Chapter 4.2(a). Pursuant to FAA Order 2150.3B, the EIR is typically opened within 72 hours from the date the violation becomes known. (!d. at 4.2(a).) Thereafter, data entries in a civil penalty action ''mustbe tnade within48 hours ofthe occurrence ofthe event" 

### (ld. at 9.3(b)), and maintained for a minimum period offive (5) years afterthe civil penalty has been paid (or waived). FAA Order 2150.3B, Chapter2.1O(b)(2). In addition, during all phases ofthe investigation, the FAA investigator is supposed to exercise "common sense and goodjudgment." (FAA Order2150.3B, Chapter4.1.) 

### B. Preservation Even Before Formal Litigation Commences The FAA'spreservation guidelines during the initial investigation, as outlined in FAA Order 2150.38, follows well-established litigation practice: 'I'he duty to preserve evidence n1ay attach even before actual litigation has commenced. ""Once a party reasonably anticipates litigation, it must suspend its routine document retention/destruction policy and put in place a 'litigation

**hold~** to ensure the preservation ofrelevant documents." Ifa party does not put in place a

**~'litigation** hold.'' they risk sanctions ifany electronic evidence relevant to the litigation is deleted or destroyed sotnetin1es even without culpability. 126 Am. Jur. ProofofFacts 3d 1(Originally published in 2012) (footnote omitted). This requiretnent for preservation and disclosure ofevidence "applies to all potentially relevant ite1ns" known. to a party, "whetherornot supportive ofits contentions in the case." Jay

55 Pursuant to FAA Order 2150.38, Chapter 9.1 and 2(a), the FAA's Enforcement Information System ("EIS") is an automated, "nationwide" information management system. It is the FAA's "primary database" for "tracking information about enforcement actions." /d. All FAA organizations have access to the EIS (FAA Order 2150.38, Chapter 9. 2(d)). All FAA offices "that have regulatory responsibilities" must use the EIS data record keeping system. (!d. at 2(a).) Page 24 of 41

### E. Grenig & 

### Jeffrey 

### S. Kinsler, Federal Civil Discovery {.ll1dDisclosure, 

### § 1:1516:

### ·1 (3d ed. 2015). lt cannotbe overen1phasizedthat 

### anywritingor othermatter relating to a case, which is either in the possession orcontrol ofan adversary, is subjectto disclosure. The type ofmaterial subject to preservation and disclosure '"must be liberally construed." 27 C.J.S. 2d 

### § 104 (2011). This obligation ofa party to preserve and disclose what it has under its control is "based on ancient principles ofequity," and is intended to assist in the fair administration of justice. /d. C. Did the FAA fail to preserve relevant documentary evidence? YES. 

### Based on the FAA'spublished record-keeping guidelines, the EIRdatabase for this case should have been opened (at the latest) within 72 hours ofSeptember20, 2012. Thereafter, Inspector Rushton should have uploaded his notes, email communications, witness statetnents. and other evidentiary documentation into the EIR within 48 hours after engaging in any investigative action onthe case. This includes any investigative communications with Dr. Long or otherpotential witnesses. However, in the instant case, this did not happen. During

**~he** 

### May 5, 2016 Motion Conference the FAA orally explained that in actual practice, the FAA Field Office does not utilize the EIR system. Instead, it opens an Investigative File (''Ifile"), into which an inspectorwho is not a lawyer- determines whatqualifies as "relevant" evidence to preserve in the IFile for future litigation. (May 5, 2016 Tr. 51: 15-18.) This IFile is thenpotentially reviewed by multiple FAA employees (unidentified). During the investigation orreviewprocess, documents might be added to, or selectively deleted from, the IFile. Ifthe case is ultimately referred to FAA counsel for formal civil penalty enforcement action, a separate Enforcement Investigative Report ("EIR") is opened. This separate EIR, which is utilized by counsel during the adjudication phase ofthe case, might (or might not) include all ofthe preserved IFile material. (May 5, 2016 Tr. 49:2-22.)

Page 25 of41The FAA further orally explained during the May 5, 2016 Motion Conference that the FAA counsel did not exercise oversight regarding what evidence was preserved by the Field Office investigators.56 Thus, ifInspector Rushton did not gather and preserve "all evidence and other relevant information obtainedduring an investigation" (FAA Order2150.3B, Chapter 8.1 ), the FAA counsel would be unaware ofsuch omission. (May 5, 2016 Tr. 52:1-18.) Inspector Rushton confirmed this when he explained why he didn't immediately tell FAA counsel about the missing e-mail evidence: 8. On August 24, 2015 attorney Stevenson sent me an e-mail asking ifI had documents on this case (otherthan what was in the EIR). I called him and told him that I did not have any documents. Itold him this because Idid not have any documents. (Resp. Ex A, 2

**~~** 8 and 9.) In the instant case, Inspector Rushton maintained multiple e-mails separately on his office cotnputer. (Resp. 2.) He "routinely deleted" emails, making "hard copies" only ofthose etnails he determined to be "significant" in the investigation. (!d.) In response to the FAA counsel's inquiry afterthe Respondent filed its Motion, Inspector Rushton testified that he thought he had saved all the "relevant" communications from Dr. Long. However, Inspector Rushton acknowledged that he may have mistakenly not saved some ofthe "relevant" e-mails he exchanged with Dr. Long.57 He thought he had printed out those e-mails and saved them, but he was not sure what had happened and why they were not in the Field Office's !File. (Resp. Ex. A, 

### 2

**~** 

### I0.)Among other arguments, the FAA asserted that Inspector Rushton's destruction of evidence was part ofaroutine deletion, because ofemail storage limitations with an old computerprogran1. This argumentbythe FAA was unpersuasive.

56 This internal disconnect between FAA counsel and the FAA investigative staffappears to deviatefrom recommended practice in fair adversarial proceedings. See, e.g., ·Model Rules ofProf'IConduct r. 3.8, cmt. 6 and Fn. 37. supra. 57 It is noteworthy that neither Inspector Rushton nor FAA counsel ever specified which, ifany, ofDr. Long's preserved emails Inspector Rushton thought he had saved as "relevant" to the case. Page 26 of41All partiesto the litigation are required to preserve ...evidence. Therefore ... oncethe plaintiffhad access to the relevant information, theplaintiffneeds to take affirmative steps to preserve the information and cannot blame the defendant ifitis destroyed. 126 Am. Jur. ProofofFacts 3d 1 (Originally published in 2012) TheFAAhadtheresponsibility,justas therespondenthas during the investigationphase, to preserve relevant data for litigation. 

### In the Matter of RoyalAvionics Sys., Inc., CP99WP0021, 2002 WL 1042303, at *3 (F.A.A. Apr. 15,

**2002)('~Although** a letter ofinvestigation does not satisfy the limitationperiod set forth in49 U.S.C. 

### §46301(d)(7)(C) or in 14 C.F.R. 

### § 13.208(d), it does notify a respondentthatpreserving evidence maybecome necessary" citing

### In the Matter q(Werle, FAA OrderNo. 97-20 at 8-9 (May 23, 1997)). The FAA has a variety ofoptions and resources to ensure retention oflitigation data, but it failed to preserve it in this case. The FAA also argued thatthe destroyed e-mails were notrelevant, because they did not directly prove or disprove the allegations against the Respondent. This argument was also not persuasive. 

### In litigation, "relevance"

### is broadly construed. 

### lt is anything that "'has any tendency 

### tc) tnake 

### a fact more 

### orlessprobable." Fed. 

### R. Evid. 401 (a). lt

### is anythingthat "'is 

### ofconsequence 

### in determining the action." ld. 

### at 40l(b).

### Relevant evidence also includes "background" inforn1ation, whichmay helpunderstand disputed issues. 

### (ld., Advisory Con1n1ittee Notes, 1972 Proposed Rules). Unless otherwise lin1ited by court order, the scope ofdiscovery includes any non-privileged matter that is relevant to any party's clain1 or defense. 14 C.F.R.

**~ 13.220(e)~**  .r..:ee also, Fed. R. Civ. P. 26(b)(1). Ifthere is smne logical connection, either directly or by inference between the evidence and a

**t~:tct** to be

**proved~** the evidence is relevant. Serv. Lloyds Jn,·. C'o. )/. 

### A1artin. 855 S.W.2d 816, 822 (T'ex.App.-Dallas 1993, no writ). [A]nyone who anticipates being a party or is a party to a lawsuit must not destroy unique, relevant evidence that 1nightbe useful to an adversary. While a litigant is under no duty to keep orretain every docun1ent in its possession ... it is under a duty to preserve what it knows, or reasonably shouldknow, is relevant in the action, is reasonably calculated to lead to the discovery ofadmissible evidence. is reasonably likely to be requested during discovery and/or is the subject ofa pendingdiscovery request. 126 Am. Jur. ProofofFacts 3d 1 (Originally publishedin 2012)
Page 27 of41**'rhus~** any 

### FAA e-mail communications with a potential**witness~** which involve any**discussion~** inquiry, statement, orresponse regarding the investigation or the people involved in the investigation, is relevant and should be preserved. This duty ofpreservation is particularly i.mportant when the individual tasked with preserving the evidence is neither a lawyer nor legally trainedto understand the broad scope ofevidentiary value (both inculpatory and exculpatory) that any such con1mtmications might hold. Itis critical to preserve such evidence for litigation. especially when an opposing party might seek to address the n1otivations, potential bias, and/or credibility ofa potential witness. This preservation responsibility is a cornerstone ofourjudicial system, whose goal is to find the truth through honest and orderly production ofevidence under established discovery rules. Grenig &Kinsler, 

### supra, 

### § 1:11. Inspector Rushton's lack oftraining is evident when he'states that he didn't realize his multiple and substantive e-n1ail comrnunications with Dr. Long might be important: I cannotbe sure ofwhat actually happened, but at the time I deleted these emails, 

### probably either didnot realize [neededto keep them, orthought I had already printed them out, and then deleted them not realizing that there was no hardcopy. Resp., Att. 

### A, Declaration ofYancey Ruston, 2,**~** 

### 10 (italics added).) 5. Ihave reviewed the portions ofthe emails between Dr. Long and I that are printed in the "Motion for Sanctions." I did not include these e-mails as Items ofProofin the EIRbecause, in myjudgment, thee-mails where Iencourage Dr. Long to tell the whole truth about the flight didn't prove ordisprove anything about the case, and Dr. Long's initial written statement was incomplete and duplicative ofhis more complete, later written statement. We ·do not include every single e-mail exchange as Items ofProofin ourEIRs, only those that add somethingto the evidence. 59 (Resp. Ex A, 

### 1**~** 5.) In the instant case, given the evidence submitted, this Court must find that Inspector Rushton selectively preserved in the !File only material that strengthenedthe case he was pursuing against the Respondent and that he believed "seemed important" to the FAA's proofof

59 Based on the record, it is unknown what e-mail communications (ifany) Inspector Rushton ultimately did preserve and include in the EIRas "relevant' material. Page 28 of41the case. (Resp. Ex A, 

### 1

**~** 2.) Thus, Inspector Rushton failed to identify and preserve all relevant evidence, particularly exculpatory orbackground informationthat might have been helpful to the opposing side. See, e.g., ABAModel Code Rules 

### 3.4 and 

### 5.3. Therefore, it mustbe assumed on behalfofthe Respondent-thedisadvantaged party-that Inspector Rushton tnay have selectively withheld otherrelevant investigative information from the EIR as well, which is still unknown orwhich may neverberecovered. Sanctions should be imposed. 

### IX. ALLEGATION OFDISCOVERY OBSTRUCTION The Respondent's allegation ofdiscovery obstruction occurs during the formal adjudicationtime period (December 

### 5, 2014- present). In its Motion, the Respondent alleged that the "behavior and conduct" ofthe FAA counsel "completely compromised the integrity of the case." (Mot., 

### 11.) As part ofthe support for this allegation, the Respondent focused on e-tnail correspondence, preserved by Dr. Long, in which the FAA counsel initially blamed the Respondent for a delay inthe discovery process, inferred wrongdoingby the Respondent in obtaining the subpoena, and advised Dr. Longto consider how he might avoid disclosing information requested by the Respondent's subpoena. Forexample, onAugust 

### 21, 2015, the FAA attorney notified Dr. Long via e-mail that even though discovery "technicallyends today" the parties were goingto continue to "provide each other with information pastthe close ofdiscovery." (Mot., Ex. M, August 

### 21, 2016 4:10 pm e-mail.) As part ofthis e-1nail notification, the FAA attorney specifically faulted the Respondent for this delayed and ongoing discovery exchange. 

### (ld.) However, as the record in this case reflects, this fault-finding ofthe Respondent was not accurate/0 nor was it necessary. Approximately one month later, on September

### 23, 2015, the FAA Hearing Docket Clerk properly issued a Civil Penalty Subpoenato Dr. Long atthe Respondent's request pursuant to 

### 14

60 The record demonstrates that shortly afterthe FAA sent its August 21, 2016 email, this Court found that both parties had mutually abandoned the April 7, 2015 Order Setting Litigation Dates and Procedures schedule for period oftime. The record also demonstrates that prior to the FAA's August 21, 2015 e-mail to Dr. Long, the Respondent had served responses to the FAA's multiple discovery requests on July 13, 2015, August I, 2015, and August 19, 2015. However, as ofAugust 21,2015, it was the FAA who still had not yet responded to the Respondent's April 20, 2014 discovery requests. See, e.g., September 1, 2015 Order Granting the Motion to Amend, Continuing the November 2015 Hearing to September2016, and Granting Other Relief. Page 29 of41

### C.F.R. § 13.228(a). This Subpoenaincluded a Rider, requesting Dr. Long to produce for the Respondent all relevant documentation in his possession. (Mot., Ex. H.) 

### The subpoenadid not provide a specific date for Dr. Long to respond to the Rider. (!d.) 

### Seven (7) days later, on September 30, 2016, the FAA attorney initiated contact (viaemail) directly with Dr. Long. In this September 30, 2016 e-mail, the FAA attorney notified Dr. Long that the Respondent had requested a subpoena. The FAA attorney then opined that the Respondent was acting improperly in seekingthe subpoena. The FAA attorney recommended to Dr. Long that he and/orhis attorney might look for ways to avoid answeringthe subpoena on multiple grounds: IF and when you receive such a subpoena, please contact me (or have your attorney contactme). The requests appearto be improper in whole or in part, in that we are pastthe point inthis litigation where new discovery requests have been made, and in that the requests appear to seek documentation thatis not relevant to this case. You and your attorney may, ofcourse, be able to identify otherproblems with regards to this request. Ifyou receive the subpoena, you will be required to comply with it unless something is filed with the court seeking relieffrom the subpoena. (Mot., Ex. N, Sept. 30, 2015 7:58am e-mail.) After this communication, the record reflects that the FAA did not file any motions with this Court to quash or limit the subpoenapursuantto 14 C.F.R. 

### § 13.228(b). Approximately one month later, on October 27, 2015, Dr. Long reported to FAA counsel (pursuant to the FAA attorney's September 30, 2016 e-mail request) that he had received the Respondent's subpoena. He attached a copy ofthe subpoena, and opined that the Respondent was asking for '"a lot of information." (Mot., Ex. K: Oct. 27, 2015 10:00 am e-mail). That same day, on October27,2015,the FAA attorney responded to Dr. Long. The FAA attorney criticized the Respondent's action in obtaining.the subpoena, andre-recommended that Dr. Long or his attorney consider avoiding answering the subpoenaon multiple grounds: I would like to speak with you and/or your attorney (at your option) about responding to this subpoena. As I mentioned the last time we interacted, discovery was closed in this case (and was closed even before Respondent obtained the subpoena, which Inote is dated almost a month before it was

**served)~** 

### Many ofthe questions seem overbroad as well, but I can't speak as to Page 30 of41

### how burdenson1e they would be without your input. An objection and/or n1otion to quash to sotne or all ofthe requests can come from n1y office ordirectly from you (presumably through your attorney). Please give me a call (and/or have your attorney give me a call) and wecan discuss whatresponse (objection, motion, compliance, orotherwise) is appropriate. (Mot., Ex. K, Oct. 27, 2016, 1:20 p.m., FAA e-mail.) Dr. Long immediatelyresponded, and confirmedthat his attorney ('"Jack") would contact the FAA attorney that same day, on October 27, 2015. (Mot., Ex. 

### K, Oct. 27, 2016 

### 1:23p.m. Dr. Long e-mail.) The record does not reflect whether such contactoccurred, and ifit did, what information was exchanged. Seven (7) days later, Dr. Long's attorney (Mr. Monk, III) 

### served the Respondent with all documents as demanded in the Respondent's Subpoena and Rider. (Mot., Ex. I.) 

### In response to this allegation ofdiscovery obstruction, the FAA asserted that it had done nothing itnproper. The FAA asserted thatthe Respondent's request and service ofthe subpoena
onDr. Longwas untimely, and in violation ofthe Court'sdiscovery deadlines. It argued that the "deadline to issue subpoenas"was June 19,2015. (Resp. 4.) The FAA argued that it had acted to ensure compliance with the court'sdiscovery orders. It

### also argued that it had every right to provide advice to its own

**witnesses~** 

### Did theFAA engagein discovery obstruction? Yes. First, it sho·uld be noted that during the FAA's email exchanges with Dr. Long, the FAA continued to accuse and blmne the Respondent. As noted earlier, this is not only unnecessary, it is contrary to both the FAAAdministrator's publishedgoals offairness in administeringthe program, as well as to well-established ABA standards for ensuring due process fairness in adversarial litigation practice. Second, as discussed during boththe Apri113, 2016 and May 5, 2016 Motion Conferences, this Court cannot agree withthy FAA's assertion thatthe August 21,2012 deadline for exchanging discovery, establishedby the April 7, 2015 Order (Order, 3

**~** 

### 9), remained in effect afterthe issuance ofthe September 1, 2015 Order. Rather, the September 1, 2015 Order continued the hearing for ten (1

### 0) months (i.e., from November 18, 2015 to September 13, 2016) Page 31 of41

### to allow the partiesto complete discovery exchange, file and argue any needed pre-hearing motions, and to propose a new litigation plan regarding any outstanding, deficientdiscovery · issues and othermatters.61 

### As noted by this Court onMay 5, 2016,the parties still had not filed anyjoint litigation plan, althoughthe FAA did file an untimely unilateral plan, which the Court has not adopted. Third, the FAA's argumentthat the Respondent's subpoena fell outside the court'sJune 19, 2015 deadline to "issue subpoenas" (Resp. 5) was a broad misreading ofthe April 7, 2015 Order. In fact, the June 19, 2015 deadline was provided for the parties to "issue subpoenas and/or mutually arrange 

### for the depositions of witnesses andexperts" priorto the November 18, 2015 Hearing. (April 7, 2015 Order, 3

**~** 

### 9 (italics added)). Even ifthe FAA's assumption that this April 7, 2015 deposition deadline survived as part ofthe September 1, 2015 Order was correct, it was inapplicable to theissue here. Fourth, this Court would disagree that the FAA's obligation to comply with a court order allowed it to encourage thirdparty witnesses to avoid responding to a lawfully issued subpoena. IF the FAA believed that the Respondent had violated an August 21, 2015 discovery deadline when the Respondent asked the FAA Hearing Docket Clerk to issue the Septetnber 23, 2015 subpoena, the FAAhad a responsibility to first informally discuss its concerns with the Respondent. Ifdiscussion with the Respondent did notresolve the matter, then the FAA should have immediately filed an objection or motion, with supportingfact and legal authority, with this Court. Fifth, the FAA's discovery deadline arguments are a red herring, because these arguments Iniss the actual issue. The Respondent's service ofa subpoenaon Dr. Long was not a violation ofa court discovery deadline. 

### It was not an untimely attemptto schedule a deposition with Dr. Long. The subpoena was not directed to the FAA or any employee oragent ofthe FAA. The subpoenawas not attetnpting to compel the FAA to "disgorge whatever facts" it had its "possession" as partofa timed discovery exchange. Hickman v. Taylor, 329 U.S. 495, 507 (1947).

61 September· I, 2015 Order, 6

**~ 6~**  and August 31, 20 16 Tr. at 64: 13-17 and 70: 1-3. Page 32 of41

### Instead, the Respondent was engaged in independent investigation and fact gathering from two (2) third party witnesses, Dr. Long and Aviation Services Group. 62 

### The Respondent's subpoenafor Dr. Long was obtainedfrom the Hearing Docket Clerk on September 23, 2015,

.which was only three (3) weeks after the Court had continuedthe November 2015 Hearing to Septen1ber 2016, and directed the parties to complete their discovery. 63 

### The subpoena was served on Dr. Long on October 21, 2015-approximatelyeleven (11) months before the newly set September 13, 2016 Hearing, and withinthe general time frame allowed by the September 1, 2015 Order for the partiesto complete any discovery priorto the newly set September2016 

### H . 64



### eanng. The FAA's arguments ignore the fact that independent investigation and fact gathering is an absolute right held by each party in both civil penalty enforcements and in general federal litigation.65 

### As part ofthat right, each party may conduct its own investigation, and dentify its own legal theories and arguments. The Work Product Doctrine, 

### 68 Cornell L. Rev. 760, 785 (1983).66 

### "[T]he adversary system fosters a competitive relationship that motivates each party to marshal all the law and facts beneficial to its case." (I d.) 

### Ideally, as the FAA Adtninistrator has recognized,67 

### each party's independent investigation should start earlyto allow for full and early disclosure ofmaterial to the opposing side. See also, DiversifiedIndustries, Inc., v. Meredith, 

### 572 F.2d 596, 604 (8th Cir.1977) ("Prudentparties anticipate litigation, and begin preparationpriorto the time suit is formally

62 The Respondent had obtained and served two (2) subpoenas. The subpoena served on Aviation Services Group, and its response to the subpoena, was not at issue in this motion.

**~** See September I, 20 15 Order.
64 

### As noted by this Court on May 5, 2016, the parties were directed to file ajoint proposed plan on or before October 15, 2015, so that a newjointprocedural order might be issued, but they failed to do so. (Sept. I, 2016 Order, 6

**~** 5.)
65 Adetailed discussion oftheparties' mutual obligation to conduct factual investigations is contained in Airborne Maintenance andEngineeringServices, FAA Docket FAA-20 13-0291 (Order Denying Respondent's Motion to Compel Discovery ofFAA Attorney's Work Product) (Aug. 19, 20 14).
66 The Work Product Doctrine is a comprehensive study ofthe history and development ofthe work product doctrine and the application ofRule 26(b)(3), from common law to 1983 (the date ofpublication). While not fully comprehensive for today's cases in 2016, it remains a valuable resource for practitioners.
67 See, 55 Fed. Reg. 27548, 27556 (Jul. 3, 1990) (Discussion ofFinal Rule), and Fn. 46, supra. Page 33 of41cOinmenced.

## 'l Itis recognized, however, that investigations maybe ongoing. In such circumstances, the parties have an obligation to supplement discovery disclosure as soon as practicable. 14 § 13.220(i);

### see also, Fed. R. Civ. Proc. 26(e); and Baicker-McKee, et al., supra, at 841. In addition, fairness in the adversarial system requires lawyers to not only conduct their own independent investigations, but also to affirmatively protecttheir opponent's right to conduct an independentinvestigation. Model Rules ofProfl Conduct atr. 3.4(a). The ABA Model Rules specifically mandatethat a lawyer "shall not ... counsel orassist" anyone (other than a client) to "refrainfrom· voluntarily givingrelevant evidence to anotherparty." 

### !d. at r 3.4(f). There is nothing in the FAA Administrator's published comments, guidelines, and goals that is inconsistent with this well-established standard. In arguing it has a right to "give advice'' to its own witnesses, the FAA is only partially correct. Certainly a lawyer may render "candid advice" to his own client. Model Rules ofProfl Conduct r. 2.1 (Am. BarAss'n 1983). However, the FAA's ability to provide counsel to its own client, orto its own employees, is different from its ability to offer advice to a third party witness. In that circumstance, a lawyer must be "truthful"when interacting with non-clients. !d. at r. 4.1 However, a lawyer should neverobstruct the opposing party's access to third party witnesses orevidence. In the instant case, the FAAfailed to protect and supportthe Respondent's right to independently investigate and fact gather, both at the initial and adjudication stages ofthis proceeding. The FAA was absolutely in errorwhen it contacted Dr. Long, a third party witness, to criticize the Respodnent, implythat the Respondent was engaged in wrong-doing, and then recommend to Dr. Long and his attorney thatthey consider avoidingthe subpoenaby objecting to it ormovingto quash, based on the multiple grounds offered by FAA counsel in support of that purpose. Whilethe FAA's efforts to obstructthe Respondent from obtainingevidence from Dr. Long were not ultimately successful, it was harmful, both to the Respondent's perception of fairness and by the non-compliance withthe well-established standards requiring adversarial counsel to support fair proceedings. Sanctions should be imposed. Page 34 of41X. ALLEGATIONS OF OTHERDISCOVERY VIOLATIONS A. Did the FAA counsel deliberately withhold relevant, disclosable documents on or August 24, 2015? NotProven. 

### The Respondent alleged that FAA counsel deliberately withheld physical evidence in his possession during the formal adjudication time period (Decernber 5, 2014- present). As part of its Motion, the Respondent allegedthatevenifthe FAA counsel had been ignorant ofInspector Rushton's earlier destruction ofrelevant evidence, Dr. Longprovided his email records.to the FAA by August 24, 2015, and the FAA failed to disclose those records. (Mot., Ex. M, Dr. Long's Aug. 21, 2016, 5:04pm email). The Respondent's argumentregarding whatthe FAA attorney knew, and/or had in his actual possession from Dr. Longbetweenthe dates ofAugust 21, 2015 through approximately October 27, 2015, is based on circumstantial evidence and assumption. In essence, the 

### Respondent argued that the FAA's subsequent attempts to persuade Dr. Long to avoid answering the $Ubpoena, onboth September 30, 2015 and October27, 2016, presumptively indicated that the FAA knew, as ofAugust 24,2015,the damaging content ofDr. Long's preserved material. ln response, the FAA asserted that Dr. Long had not disclosed to it all the documents that Dr. Longpossessed. Instead, on oraboutAugust 24, 2015 Dr. Long had providedonly eleven (11) documents, seven (7) ofwhichthe FAAdeemed relevant and disclosed. (Resp. Ex. B, 1

**~5.)** 

### The FAA's counsel testified that he did not have knowledge or possession ofDr. Long's additional materials during this time.

**(R~sp.** 

### Ex. B, 1

**~~** 

### 3-5.) Once the FAA attorney received the subpoenaed materials from Dr. Long's attorney, he did not read them until he received the Respondent's Motion for Sanctions. This leaves the question ofwhy Dr. Longhad not provided FAA counsel in August 2015 with the volUine ofmaterials he produced in response to the Respondent's subpoena in November 2015. The Respondent asserts that FAA counsel failed to make '"reasonable inquiry" regarding the documents. (Supplement, 5.) There is meritto this argument. Based on the FAA counsel'stestimony, it appears he framed his August 2015 discovery request to Dr. Longto limit material. Specifically, his request to Dr. Long was narrowly focused Page 35 of41on obtaining "emails aboutthe flight" (Resp. Ex. B, 

### 1

**~** 5), instead ofhis more expansive request to Inspector Rushton (and others), asking for "any statementstaken about the case, any emails to or from Dr. Alan Long, and any documents created ... about the case." (Resp. Ex. B, I

**~ 3~**  Ex. F). Shortly thereafter, Dr. Long spoke with FAA counsel on the telephone aboutthe FAA's August 2016 request.68 (Resp. Ex. B, 1



### ~ 5.) Dr. Long then submitted only eleven (11) pages of material. Given therecord in this case, it is understandable why the Respondent made certain assumptions. However, absent any other evidence by the Respondent, this Court accepts the FAA's counsel'stestimonial statement as dispositive on this issue, and the Respondent's allegation is deemednot proven. B. Did the FAAfail in its duty to obtain and provide complete evidence from Dr. Longand/or Inspector Rushton? Yes. Finally, the Respondent asserted thatthe FAA had failed in its duty to obtain complete evidence from eitherDr. Long or Inspector Rushton afterthis Court had issued two different discovery Orders69 and the Respondent had propounded multiple discovery requests. In response, the FAA asserted that all "releasable" portions ofInspector Rushton's preserved EIR (i.e., the materials that Inspector Rushton chose to preserve) have twice been released to the Respondent: 1) sometime (date unspecified) after receipt ofthe Respondent's inforn1al March 16, 2013 request (i.e., filed eight (8) days after the issuance ofthe March 8, 2013 NPCP); and, 2) on April17, 2015 as part ofthe FAA'sdiscovery response. (Resp. 2.) In addition, the FAA counsel submitted a Declaration identifying the August 24, 2015 discovery requests he madeto both Inspector Rushton and Dr. Long, and the answers he received. (Resp. Ex. B, 1

**~~** 3-5.) The fact that the FAA counsel provided to the Respondent only certain portions ofdata that InspectorRushton chose to preserve in the EIR is not dispositive. The FAA is responsible to preserve and evidence in its possession for subsequent disclosure. Inspector Rushton failed to

68 The record does not include any telephone log regarding the content ofthis conversation.
69 See, April 7, 2015 Order Setting Litigation Dates and Procedures; and, the September 1, 2015 Order Granting the Motion to Amend, Continuing the November 2015 Hearing to September2016, and Granting Other Reiief Page 36 of 41preserve relevant evidence. He also failed to promptly apprise counsel, at any timepriorto being advised about the Respondent'sNovember 18, 2015 Motion, which contained all ofDr. Long's preserved evidence that the reason he "did not have any responsive documents" in answer to the Respondent's requests for discovery (Resp. Ex. B, I

**~** 4) was because he had already selectively destroyed (or lost) such material. Thereafter, is not surprisingthat FAA counsel, who was not involved i.n the FAA's collection andpreservationofevidence in this case, did not know about all the missingdata. Thus, FAA counsel was unaware he neededto press InspectorRushton for answers aboutthe missing information, and FAA counsel failed to adequately phrase his discovery requests to Dr. Long to try and obtain such missing tnaterial. Nevertheless, the FAA's attorney's ignorance about the data created, collected, and then withheld from the EIR by InspectorRushton does not excuse the FAA from its discovery responsibilities. The FAA cannot escape sanctions because it kept its own counsel ignorant of its actions. Instead, the FAA attorney'sjob simply becomes harder, because counsel cannot help prevent the hidden perils created in the case by his own client. In the instant case, the FAA failed in its duty to obtain complete evidence from either Inspector Rushton orDr. Long afterthis Court issued discovery orders and the Respondent propounded multiple discovery requests. Sanctions should be imposed. XI. 

### SANCTIONS The Respondent has requested the imposition ofsanctions under rnultiple FAA Rules, based in part on both discovery violations after Court Orders were issued and for general discovery non-compliance. It is well-established that the imposition ofsanctions for discovery violations or failures is "extremely fact sensitive." Grenig and Kinsler, 

### supra, § 1:2:1. Itmustbe done on a case-bycase basis, and rests in the sound discretion ofthe 

### court.Jd. §§ 1:96, 12.3. In order to be effective, sanctions mustbe applied diligently to penalizethose whose conduct warrants such action. I

### d. § 12:1. Page 37 of41In adversariallitigation, sanctions may range from merely drawing an adverse inference from the suppression ofthe evidenceto very serious preclusions, including dismissal ofthe offending party's case.70 

### !d. 

### § 1:11; 

### see also, 27 C.J.S. 2d §§ 104-117 (2011 ). Ifdiscovery sanctions are imposed, short ofdismissal ofthe case, such sanctions are generally not reviewable until the end ofthe proceedings. Grenig & Kinsler, 

### supra, §1:96. Before awarding sanctions, the court may look at many different factors, including (but not limited to) the following: 1) whetherthe offendingparty acted innocently, carelessly, grossly negligent or willfully; 2) the efficacy oflesser sanctions; 3) the importance ofthe information soughtin discovery; 4) whetherthe offendingparty everproduced the information and how; 5) the public policy aspects ofthe litigation; and 6) the remorsefulness ofthe offendingparty and/or its counsel. Grenig & Kinsler, 

### supra, 

### §12:3. In the instant case, the Respondent seeks an order striking certain pleadings, which would essentially preclude the FAA from proceedingwith its prosecution. Since public policy promotes deciding cases on their merits, striking pleadingsthat would effectively preclude the action should be used ''cautiously." 

### Jd. 

### § 12:9. However, striking pleadings is a well-established sanction imposed for disobedience ofcourt orders. 71 C.J.S. 2d § 683 (2011). Obviously certaine-mails exchanged between Inspector Rushton and Dr. Long, although destroyed by InspectorRushton, have been recovered from Dr. Long via subpoena. Ifthe recovery ofthis datawasthe onlyproblem, striking thepleadings would not be warranted because the evidence has been found. 

### See, Fed. R. Civ. P. 37(e); 

### see, also, Baicker-McKee,eta!., 

### supra, at 984-87. However, the ultimate recovery this evidence, in response to the Respondent's subpoena, is not fully dispositive ofthe issue.71 As previously discussed herein, Dr. Long'spreserved e-mails demonstrate the following: 1) the FAA failed to abide by a cornerstonetenet ofourjudicial system and its own civil penalty

70 However, as noted earlier herein, the FAA Rules in civil penalty proceedings do not allow dismissal ofthe case as a sanction. See, supra, Section II. Legal Authority for Sanctions.
71 Although neither party focused on this issue, it should be noted that this email recovery occurred three (3) years after the emails were exchanged- long after the Respondent' s opportunity to gather "fresh" and complete evidence during the investigation phase had expired. Page 38of41enforcement program-totreat an accused fairly and objectivelythroughout all stages ofa proceeding;72 2) the FAA willfully influenced and tainted the perceptions and beliefs ofDr. Long, a primary witness, in an effortto obtain damaging evidence against the Respondent, 3) the FAA willfully interfered with and blocked the Respondent's right to discovery during the initial stages ofthe investigation; 4) the FAA investigator destroyed relevant evidence during both the investigative and enforcement stages ofthe proceeding; 5) the FAA willfully and persistently

. conden1ned and disparaged the Respondent from the initial investigation stage through the

adjudication phase ofthis action; and, 6) the FAA actively obstructed discovery during the adjudication phase ofthe proceeding when it encouraged Dr. Long and his attorney to avoid answering the Respondent's



### ~ubpoena. The entire record also demonstrates thatthe FAA failed to take necessary precautions to ensure the preservation of, and the full disclosure of,' relevant evidence. Taken as a whole, these are notjust individual discovery failures in non-compliance with Court orders and discovery requests, they are a demonstration ofwillful non-compliance with the administration of justice, which should be sanctioned under both Section 13.217(f) and Section 13.220(n). This Court is fully aware ofthe enormity ofthe FAA'stask to enforce its regulations, as well as the FAA'schallenges in working with a wide swath ofbusiness partners in the aviation community-many ofwhom either ignorantly or willingly try to avoid compliance with safety regulations. It is a difficult task. Butit is a taskthat is possible to accomplish without violating or circumventingthe due process fairness standards that are the bedrock ofboththe FAA Administrator's enforcement program and federal litigationas whole. 

### It might be hoped that the facts ofthis particular case highlight an isolated incident and rare exception in the FAA investigation Field Offices, instead ofa hidden norm. However, the FAA's casual dismissal ofInspector Rushton's conduct and communications as ""necessary" (Resp. 11, fn. 4), its argumentsthat Inspector Rushton's problematic communications with Dr.

72 It should also be noted, on behalfofthe Respondent, that once Dr. Long adopted Inspector Rushton's opinions about the Respondent, it was highly likely that Dr. Long would share those opinions with others, especially as he consulted with different counsel and then transferred his business interests elsewhere. It cannot be calculated how many people have now heard some variation ofInspector Rushton's vilification ofthe Respondent, in the three and a half(3.5) years since the investigation ofthis case first began. Page 39 of41Long were simply part ofany FAA investigator'sjobwhen ''asking a witness to provide a full and complete statement ofevents", (Resp. 12), its failure to preserverelevant evidence, its persistent vilification ofthe Respondent during apending action, its ongoing attempts to obstruct the Respondent's right to discovery, and its lack ofany acknowledgementthat its actions substantially deviated from well-established due process standards, may indicate otherwise. Whenthe FAApublished its Rules in 1990, the FAA Administratorexpressed high hopes that the aviation community and members ofthe public, who had filed written concerns about an FAA internally administered program, would be won over with the FAA's administration ofa fair civil

**p~nalty** enforcement program: [T]he agencybelievesthe civil penalty assessment authority has been administered fairly and in good faith from its inception, and fully expects to win the confidence ofthe aviation community, as well as the general public .... 55 Fed. Reg. 27548,27551 (Jul. 3, 1990) (Discussion ofFinal Rule). The FAA Administrator's expressedhope did not materialize in this particularcase. The FAA's "no harm", it was "necessary", it was the Respondent's fault, it wasjustroutine destruction, and other arguments defending against the allegations in this case, and arguing against sanctions, were notpersuasive. In short, the FAA's actions in this case were completely contrary to both the FAA Administrator's published goals offairness in administering the program,73 as well as to well-established ABA standards for ensuring due process fain1ess in litigation. 74 Harm has occurred, both to the individuals involved in this case, and to the FAA's safety enforcementprogram as a whole. This Courthas engaged in a very careful consideration ofthe record to determine what sanction(s) would be proportional and appropriate, not only to address the proven n1isconduct but

73 See, e.g., FAA Order 2150.38, Chapter2.3(g) (an acc'used has a "right" to be treated fairly) and 55 Fed. Reg. 27548, 27551 (Jul. 3, 1990) (Discussion ofFinal Rule)(the respondent's rights offairness and due process begins at the inception ofthe FAA's investigation and continues through to the final resolution ofany accusation).

74 As noted earlier herein, the FAA asserted that FAA counsel had only a marginal role in the FAA Field Offices' investigation practices, except to act as an occasional consultant. (May 5, 2016 Tr. 52: 1-18) Assuming this is accurate, it means that the FAA enforcement program does not ensure accurate data collection in preparation for litigation, and it does riot follow ABA recommended legal oversight by FAA counsel ofits investigative employees to ensure due process compliance. Model Rules ofProf! Conduct r. 3.8. Page 40 of41also to deter any future misconductofa similarnature. All the facts inthis case, the wellestablished legal and professional standards in the litigation process, caselaw, legal sources, and the possibility ofimposingvarious less severe sanctionshave been reviewed and considered in depth. This Courthas also consideredthe seriousness ofthe conduct, the impact the conduct has had on both the case and in the administration of justice, and whetherthere was a pattern of wrongdoing throughoutthe proceeding. As detailed fully in this Order, the FAA has engaged in discovery misconduct. This n1isconduct should not have occurred. Itshould never occur again. As a result, this Court agrees with the Respondent thatthe appropriate and proportional response to the discovery violations and misconduct herein is to strike the applicable portion ofthe FAA'spleadings. Pursuantto 14 C.F.R. §§ 13.217(f)(l) and 13.220(n)(l), the instructive guidance ofRule 37, and afterreviewing all relevantcaselaw,regulation, statutory authority, and being fully advised; 

### IT IS HEREBY ORDERED: 1. The Respondent's Motion for alternate Sanctions is granted. 2. The following portions ofthe FAA's December 15, 2014pleadings are hereby stricken as a sanction for the FAA'smisconduct inthis case: Paragraph II, page 1 §§ (2) and (3). No facts regarding thesetwo struckpleadings may be introduced into evidence. 3. Upon receipt ofthis Order, eitherparty n1ay move for additional relief.

Attachment: Service List

Page 41 of41DocketNo. FAA-2014-0867 (Civil Penalty Action) 

### SERVICE LIST- BY U.S. 

### MAIL ORIGINAL & 

### ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W1 000 1

Mr. ChristopherR. Stevenson 

### Complainant's Counsel Federal Aviation Adn1inistration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Paul R. Borth 

### Respondent's Counsel Barnett & Borth, LLC 800 Waukegan Road, Suite 200 Glenview, IL 60025-4387 TEL: 847-724-5520 FAX: 815-356-7042 Judge J.E. Sullivan 

### US. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 

### ONE COPY

Birmingham Flight Center, Inc. 

### Respondent · 4243 East Lake Blvd. Birmingham, AL 35217

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.