In The Matter Of: 

SERVED: JUNE 3, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2014-0867 

BIRMINGHAM 

FLIGHT CENTER, INC. 

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Case No. 20 12S0090053 

Respondent 

ORDER GRANTING RESPONDENT'S 

MOTION FOR ALTERN ATE SANCTIONS 

On November 18, 2015, the Respondent, Birmingham Flight Center, Inc., filed the 

Respondent's Motion for Sanctions ("Motion"), which included a request for alternate sanctions. 

On December 10,2015, the FAA filed a Response in Opposition to Motion for Sanctions 

('~Response"). 

On January 15, 2016, the Respondent filed the Respondent's Reply to the Striking the 

FAA's Response in Opposition to Motion for Sanctions ("Reply"). 

On February 19,2016 an Order Striking the Respondent's Response and Denying the 

FAA's Motion to Compel was filed. 

On February 22,2016 an Order Denying Respondent's Motion to Dismiss and Reserving 

Ruling on Other Sanctions was filed. 

On March 30, 2016 an Order Setting Motion Conference was filed. 

On April 13, 2016, the parties convened for a Motion Conference to 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 Respondent to file Supplemental Material and 

Continuing the Motion Conference was filed. 1 

On May 2, 2016, the Respondent filed a Supplemental Brief Concerning 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. Complaint and Answer 

On December 15, 2014, the FAA served a Complaint on the Respondent, a flight school 

operating in Birmingham, Alabama. In this Complaint the FAA alleged that on or about 

September 18, 20 12, the Respondent had operated a passenger flight for compensation or. hire 

without a certified pilot. Based on this fact allegation, the FAA asserted the Respondent had 

violated seven (7) FAA safety regulations, and proposed a total civil penalty of $11 ,000. The 

Respondent filed a December 18, 2014 Answer and denied the allegations. 

B. Short Summary of Respondent's Motion 

The Respondent's November 18, 2015 Motion for Sanctions alleged that ~~[f]rom the 

inception" of the FAA's investigation in this case, the FAA had engaged in ''improper, 

sanctionable conduct." (Motion, 1, ~I.) The Respondent urged either dismissal of the case or, 

alternatively, other sanctions as the court deemed appropriate. Because dismissal is not an 

available sanction under the FAA Rules of Practice, the Respondent's request for dismissal was 

1 This April 13, 2016 Order erroneously identiFied the date of the Motion Conference as "April 16, 20 16." (April 

13, 2016 Order, 1.) This is a clerical 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. of Service). 

· 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 a written supplement but did present oral argument at the 

May 5, 2016 Motion <;:onference. (April 13, 2016 Tr. 32, 6-19.) 

Page 2 of 41 
denied on February 22,2016. 4 However, as part of its Motion the Respondent alternatively 

requested ''sanctions as the Court deems proper and just." (Motion, 20.) 

During the April13, 2016 Motion Conference, the Respondent was directed to specify 

what alternate sanctions it was requesting. In its May 2, 2016 Supplement (Supp. 7) and during 

the May 5, 2016 Motion Conference, the Respondent asserted that the appropriate alternate 

sanction was to strike the FAA's pleadings. (May 5, 2016 Tr. 9.) 

Based on the materials submitted, the Respondent has 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 (September 20,2012- March 7, 2013) 

a. "Polluted" the perceptions and testimony of Dr. Long, a third-party witness (Mot. 

9-13); and 

b. Failed to preserve relevant documentary evidence. 

2. Formal Civil Penalty Action (March 8, 2013- December 4, 2014) 

a. Failed to preserve relevant documentary evidence. 

3. Formal Adjudication (Novetnber 26, 2014- Present)5 

a. Obstructed discovery by contacting Dr. Long, a third party witness, and 

encouraging him and his attorney to object to or avoid responding to the 

Respondent's lawfully obtained Subpoena (Mot. 4-5); and 

b. Failed to provide full discovery pursuant to court orders6 (1\llot. 1-2; 5-6); and 

4 See 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 December 4, 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 of Commencement of Civil 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 of 41 
c. Deliberately withheld relevant, disclosable, documentary evidenc.e in its 

possession. 

(Mot. 3-4, 6-9). 

C. Short Summary ofF AA's Response 

In Response to the Motion, the FAA asserted that it had not engaged in most of the 

behavior that the Respondent has alleged. Alternatively it argued that even if it were proved that 

it failed to follow some of its own internal guidelines for investigation of a 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 of the 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 13,2016 Tr. 25, 10-13.) The FAA 

argued that Inspector Rushton's destruction of his e-mail correspondence with Dr. Long had 

been part of a "routine" purge of e-mail (Resp. 5), and should not be deemed problematic, since 

these e-n1ails "did not add something to 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 attempt to gather evidence via subpoena, the FAA asserted that it had done neither. 

II. LEGAL AUTHORITY FOR SANCTIONS 

In partial support for alternate sanctions, the Respondent cited to multiple sections in the 

FAA's Rules of Practice, 14 C.F.R. Part 13, Subpart G ("FAA Rules"). The FAA Rules 

specifically address the imposition of sanctions 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) of the sections. 

7 In one of these 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 of 41 
A. Sanctions for Improperly Signed and Filed Documents (14 C.F.R. § 13.207) 

Pursuant to 14 C.P.R. § 13.207(a), all filed documents must be signed. The signing of any 

document is a certification8 that the document has been read and is in compliance with the rules 

of practice. 14 C.P.R. § 13.207(a). if any document is signed or certified in violation of 14 

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

13.207( c )(1 )-(6). 

B. Sanctions for Violating Joint Discovery Schedule (14 C.F.R. § 13.217) 

Pursuant to 14 C.F.R. § 13.217(±), a party who fails to comply with a joint discovery 

schedule is subject to 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" or with a 

""discovery request": 

(f) Sanctions for failure to comply with joint schedule. If a party fails to comply 

with the administrative law judge's order establishing a joint schedule, the 

administrative law judge may direct that party to comply with a motion [sic} to 

discovery request [sic} or, limited to the extent of the party's .failure to comply 

with a motion [sic j or discovery request, the administrative law judge 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 court order must be made by motion ... "). The motion itself does 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 20 12) ("A motion is a request to the 

court, usually submitted in writing, that seeks an order.") However, a court order issued after 

considering and ruling upon a motion does carry binding 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 of practice ( 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 41 
Thus, the language of 14 C.F.R. § 13.217(t) contains error. Fortunately, in FAA civil 

penalty cases, the Federal Rules-and case law construing them-· 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 of both Federal Rule of Civil Procedure 16 ("Rule 16"), 10 and Federal Rule of Civil 

Procedure 37 ("Rule 37"). 11 A cotnparison of the similar language 12 between 14 C.F.R. § 

13 .217(f) and Rules 16 and 3 7 demonstrate that the most reasonable interpretation of the 

problematic text of 14 C.F.R. § 13 .217(f) is as follows: 

(f) Sanctions for failure to comply with joint schedule. If a party fails to comply 

with the administrative law judge's order establishing a joint schedule, the 

administrative law judge may direct that party to comply with a motion to 

discovery request or, limited to the extent of the party's failure to comply with a 

motion or discovery request or order directing discovery, the administrative law 

judge may ... [sanctions listed]. 

14 C.F.R. § 13.217(f) (emphasis and alterations added) 

Utilizing this interpretation, if a violation of 14 C.F .R. § 13.217 is found, the Court n1ay 

impose four ( 4) different sanctions: 

1. Strike that portion of a party's pleadings; 

2. Preclude prehearing or discovery motions by that party; 

3. Preclude admission of that portion of a party's evidence at the hearing, or 

4. Preclude that portion of the testimony of that party's witnesses at the hearing. 

9 When the FAA promulgated the Rules of Practice in 1990, the FAA wanted to maintain a "less formal" 

administrative process. 55 Fed. Reg. 27563 (Jul. 3, 1990) (Discussion of Final Rule). As a result; it declined to adopt 

as controlling the Federal Rules of Civil 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 of discovery 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 direct the parties to confer and submit a joint schedule, 14 

C.F.R. § 13.205, or the parties may voluntarily agree to confer without prior court directive and jointly file a 

proposed discovery schedule for court approval. 14 C.F.R. § 13.217(a)-(d). 

Page 6 of 41 
14 C.F.R. § 13.217(f)(l)- ( 4). 

Further, any sanction(s), if imposed, 13 should be ''limited to the extent of the party's 

failure to comply." 14 C.P.R.§ 13.217(f)(l). 

C. Sanctions for Failure to Comply with Discovery Orders (14 C.F.R. § 13.220) 

if no joint discovery schedule is entered in a case, then pursuant to 14 C.F.R. § 13.220, 

sanctions may be imposed in those instances when a party fails to act pursuant to a discovery 

order, or when a party fails to comply with a court's order to compel discovery. 14 14 C.F.R. § 

13.220(n). 

However, the language in this section is again problematic, and echoes the problems in 

14 C.F.R. § 13.217(f) as discussed above. 

(n) Failure to comply with a discovery order or order to compel. If a party fails to 

comply with a discovery order or an order to compel, the administrative law 

judge, limited to the extent of the party's failure to comply with the discovery 

order or motion 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 interpreted to read: "to the extent of the party's failure to comply with the 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 of the 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 appear to synthesize major components of Rule 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 of 41 
III. DATE OF COMMENCEMENT OF CIVIL PENALTY ACTION 

Part of the Respondent's Motion alleges improper conduct and communications by the 

FAA during its initial investigation stage, which occurred prior to the filing of both the FAA's 

March 8, 2013 Notice of Proposed Civil Penalty ("NPCP") and December 15, 2014 Complaint. 

As part of its 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 of sanction review, nor ~id it identify the date that it had issued its NPCP. (Resp. 1-18.) 

As a result, the various phases of this case, and when these phases "commenced" will first be 

identified, followed by a brief discussion of the scope of court oversight. 

A. September 20, 2012 - FAA Investigation 

Pursuant to 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 

of a 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 Order 2150.3B, Chapter 

2.3( e). 17 

B. March 8; 201~ - Formal Civil Penalty Action 

The "commencement" of a 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 September 20,2012, 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 September 21, 2012, Inspector Rushton 

met with Dr. Long, a third party witness. (Mot. Exs. J and R; Reply~ Ex. A). 

19 Prior to 1992, the FAA Administrator interpreted the term "commenced' in civil penalty proceedings, contained in 

28 U.S.C. § 2462, to mean the issuance of a notice of proposed civil.penalty ("NPCP"). See 55 Fed. Reg. 27548, 

27552 (Discussion of Final Rule). Then in 1992, when Congress enacted 49 U.S.C. § 4630 I (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. § 4630 I (d)(7)(C) to 

mean the same as "commenced'- that is, to mean the issuance of a NPCP. See Royal Avionics Systems, Inc., FAA 

Order No. 2002-6 at 7-8 (Apr. 16, 2002); and High Exposure, Inc., FAA Order No. 2003-7 at 8 (Sept. 12, 2003). 

Page 8 of 41 
cases.

20 In essence, to ensure compliance with the FAA's two year limitations period (14 C.F.R. 

§ 13.208(d)), the issuance of a 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 of the NPCP in its Motion. 

Neither party specifically identified the date that the FAA had issued its NPCP. (Resp. 1-18.) 

However, the Respondent did attach a copy of the Final Notice of Proposed Civil Penalty 

("FNPCP") to its November 26, 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. November 26, 2014- Formal Adjudication 

While the FAA's formal 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, Paz Aviation, 

Docket No. FAA-2014-0807, Order Denying the Respondent's Motions to Dismiss (Sept. 18, 

20 15)("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, Docket No. F AA-2015-0211, ·Order Denying the 

FAA's Motion to Dismiss (April 30, 20 15). 

In the instant case, on November 26, 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 of its Complaint with 

the FAA Hearing Docket. 14 C.F .R. § 13 .208(a). On December 4, 2014 the FAA served its 

20 See, e.g., Mississippi Air Express, LLC, Docket No. FAA-20 14-0866, Order Granting the Respondent's Motion to 

Dismiss Action (July 22, 20 15); and, Paz Aviation, Docket No. FAA-20 14-0807, Order Denying the Respondent's 

Motions to Dismiss (Sept. 18, 20 15). 

21 See Royal Avionics Systems, Inc., FAA Order No. 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 of Final Rule) (codified at 

14 C.F.R. § 13.208(d)). 

Page 9 of 41 
Complaint. On December 10,2014 (i.e., fourteen (14) days after the Request was filed) the FAA 

filed a copy of its Complaint, along with an attached copy of the Request, with the FAA Hearing 

Docket. 

As a result, the formal adjudication (or "litigation") phase of this action commenced on 

November. 26, 2014, the date the Respondent fiied its Request. 

IV. COURT OVERSIGHT OF ENTIRE ACTION 

It must be emphasized, however, that neither the date the NPCP was issued (i.e. March 8, 

2013) nor the date the Respondent filed its Request (i.e., November 26, 2014) is dispositive in 

detern1ining the scope of the court's oversight of the case. 

As briefly discussed above, the two-year limitations period for issuance of the NPCP in 

civil penalty litigation satisfies the FAA's requirements that enforcement action occurs 

expeditiously after the date of the alleged violation. This two year period also allows all parties a 

meaningful opportunity to preserve evidence early in the action. 55 Fed. Reg. 27548, 27556 (Jul. 

3, 1990) (Discussion of Final Rule). The FAA's adoption ofatwo-year statute of limitations to 

ensure expeditious "litigation commencement" has never meant, however, that the investigation 

period prior to issuance of the NPCP was exempt from court oversight in civil penalty 

adjudications. 22 55 Fed. Reg. 27548, 27556-57 (Jul. 3, 1990) (Discussion of Final Rule) (codified 

at 14 C.F.R. § 13.208(d)). See also, Paz Aviation, Docket No. FAA-2014-0807,. Order Denying 

the Respondent's Motions to Dismiss (Sept. 18, 20 15). 

When setting and explaining the NPCP as the date ""commencing" the civil penalty 

action, the FAA Administrator emphasized that both parties had responsibilities that preceded 

both the formal civil penalty action "commencement" date and the adjudication of the case. The 

collection and preservation of evidence during the investigative stages of the 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 of the action. (April 13, 2016 Tr. 23: 13-25:8). 

Page 10 of 41 
Thus, well before legal enforcement action is initiated by the .issuance of a notice 

[i.e., the NPCP] the respondent is usually aware of charges ... and that there may 

be a need to preserve evidence regarding a particular incident. 

55 Fed. Reg. 27548, 27556 (Jul. 3, 1990) (Discussion of Final Rule). 

The FAA Administrator also assured the aviation community and the public that if 

adjudication of the action occurred, it was the FAA's goal to ensure "a fair adjudication based on 

the facts and the law." !d. at 27556. Both judicial and appellate oversight of the civil penalty 

enforcement action would help prevent "overzealous prosecution" and be the "proof' of fairness 

in FAA civil penalty actions. 55 Fed. Reg. 27548, 27551 (Jul. 3, 1990) (Discussion of Final 

Rule). The FAA Administrator was "confident" that the independent administrative law ju_dges 

adjudicating civil penalty cases would "exercise their discretion appropriately and judiciously to 

ensure fairness to the parties" in the proceedings. I d. at 27549. Thus, the scope of the courfs 

oversight of the "fairness" of these proceedings begins at the inception of the civil penalty action 

and continues until an initial decision is issued. 

V. BRIEF OVERVIEW OF FAIR ADVERSARIAL PROCESS 

As part of its 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 brief overview of fair adversarial process, utilizing 

material in FAA Order 2150.3B, the Federal Regist.er, and the American Bar Association's 

("ABA") Model Rules of Professional Conduct ("Model Rules"), is provided. 

A. FAA's Goal of Fair and Reasonable Process 

Pursuant to FAA Order 2150.3B, Chapter 2.3(g), the FAA's enforcement processthroughout the proceeding-must be "fair and reasonable," and "perceived as fair by those 

subject to regulation" in order to be "effective." FAA Order 2150.38, Chapter 2.3(g). This 

fairness policy includes: 

[T]he right of an apparent violator to be given objective, evenhanded 

consideration of all 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 of 41 
FAA Order 2150.3B, Chapter 2.3(g). 

B. FAA Goal- Objective, Unbiased, and Accurate Investigation 

When conducting initial investigations, FAA investigative personnel must ~~gather, and 

accurately and completely report all facts ... in an unbiased and focused manner." FAA Order 

2150.38, Chapter 2.3(e)(emphasis added). This includes an FAA investigator's responsibility to 

treat the respondent with objectivity and understanding, id., and interview and gather evidence 

from witnesses about the respondent. !d. at Chapter 4.10(c)(l)-(6). During all phases of the 

investigation, the FAA investigator is supposed to exercise "common sense and good judgment." 

ld. at 4.1. The FAA goal is to conduct investigations that are not only designed to be fair, but that 

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 investigative personnel 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 or coaching. For example, according 

to guidance in FAA Order 2150.38, Chapter 4.10, if witness statements are obtained by an 

investigator, such statements should identify the facts the witness "perceived by his or her 

senses." !d. at 4.1 0( c )(5); While an FAA investigator may assist a witness in drafting and 

framing a staten1ent, the investigator should never "dictate the content of the statement." !d. at 

4.1 0( c)( 6). The investigator should never discuss any possible sanctions regarding the alleged 

violation(s) \vith the \Vitness. !d. at 4.1 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 subsequent enforcement 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 of 41 
D. Model Rules - Fairness Requires Restraint in Speech 

The FAA Administrator's published guidelines and goals for conducting fair 

investigations and obtaining unbiased witness 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, especially by government prosecutors and staff: 24 

(f) ex.cept for staten1ents that are necessary to ir1forn1 the public of the nature and 

extent of the 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 likelihood of heightening public conden1nation of the accused . 

. . and exercise reasonable care to prevent investigators~ law enforcement 

personneL ernployees or other persons assisting or associated 'vVith the prosecutor 

in a criminal case fron1 making an extn~judicial statement that the prosecutor 

\vould be prohibited fi·om making under Rule 3.6 or this Rule. 

Model Rules ofProfl Conduct r. 3.8 (Am. Bar Ass'n 1983). 

This emphasis on prosecutorial restraint~ in order to ensure fairness to the accused, 

extends to all persons working with the government prosecutor: 

I d. 

[The prosecutor should also] exercise reasonable care to prevent investigators, law 

enforcement personnel, employees or other persons assisting or associated with the 

prosecutor in a criminal case from making an extrajudicial statement that the prosecutor 

would be prohibited from making under Rule 3.6 or this 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 of the adversary system conten1plates that the evidence in a 

case is to be 1narsha1led con1petitively by the contending parties. 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 of fairness and objectivity in speech that govern all 

government prosecutions. 

Page 13 of 41 
conceahnent of evidence~ irnprope:rly in:f1uencing witnesses, obstructive tactics in 

discovery procedure, and the like. 

Model Rules of Profl Conduct r. 3.4 cmt. (Am. Bar Ass'n 1983). 

VI. ALLEGATION OF "POLLUTING" THE WITNESS 

For this and all subsequent sections, the evidence and arguments by both parties have 

been fully considered. However, because of the volume of materials submitted, only certain 

matters will be discussed. 

As part of its Motion, the Respondent asserted that the FAA has "polluted" witnesses, 

including Dr. Long, a third party witness. (Mot., 11.) In support of this assertion, the Respondent 

presented written e-mail communications, preserved by Dr. Long, 25 which codified some of his 

early cotnmunications with Inspector Rushton during the initial investigation of this case (i.e., 

September 21, 2012 through October 13, 20 12). 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 .) Inspector Rushton was also instructing Dr. Long not to talk to, or share 

information with, the Respondent. 

Did the FAA improperly "pollute" the perceptions and testimony of Dr. Long, a 

third-party witness? YES. 

Beginning on September 21, 2012, Inspector Rushton 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 on Dr. 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 of Discovery Obstruction. 

26 Dr. Long's records did not include notes from in person meetings or telephone conversations, although the 

preserved emails did occasionally reference that such meetings and calls had taken place. 

Page 14 of 41 
Long's recovered e-mails,27 

a second conversation occurred at Inspector Rushton's office 

between September 21,2012 and October 3, 2012. Dr. Long provided his first statement to 

Inspector Rushton 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 then encouraged Dr. Long to read reports on airplane crashes as he 

attempted to persuade Dr. Long to provide a different statement for the FAA investigative file. 

By October 3, 2012, Dr. Long had conversed with Inspector Rushton several times, had read the 

materials29 Inspector Rushton had given to him, and was echoing Inspector Rushton's 

condemnation of the Respondent (e.g., "I have zero tolerance for what's happening at BFC"). 

(Mot., Ex. J, Oct. 3, 2012 3:37pm e-mail.) 

On October 3, 2012, Inspector Rushton asked Dr. Long for a second statement to show 

(as Inspector Rushton characterized it) how the Respondent had tried "to hide the nature of the 

flight." (Mot., Ex. J, Oct. 3, 2012, 7:49am e-mail). As part of this e-mail request, Inspector 

Rushton advised Dr. Long that "this is not a one time mistake [by the Respondent]. This is a 

systemic issue and it needs to be corrected." (/d.) 

Shortly thereafter, Inspector Rushton asked Dr. Long to provide a copy of the "fake 

offer" given to Dr. Long by the Respondent. (Mot., Ex. J, Oct. 3, 2012, 8:21 am e-mail). That 

same day, Dr. Long provided a short supplemental statement. (Mot., Ex. J, Oct. 3, 2012 Dr. Long 

27 According to 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 of such communications. 

28 During the May 5, 2016 Motion Conference, the FAA initially excused this lack of preservation in the FAA's 

investigative file by asserting no harm had occurred, because the missing October I, 2012 Statement had simply 

been a duplicate of the subsequently preserved October 12, 2012 Statement. When asked why a second statement 

was necessary, if it was only a "duplicate" of the first statement, the FAA proffered that the October I, 2012 

Statement had been an "incomplete duplicate" of the October 12, 2012 Statement. (May 5, 2016 Tr. 98:4-12) 

29 It is unclear from the record whether the "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 of the "airplane crash" 

material that Inspector Rushton recommended to Dr. Long to read (Mot., Ex. J, Oct. 3, 2016,3:37 pm e-mail), or 

something else. 

Page 15 of 41 
Statement). Upon receipt of this supplemental statement, Inspector Rushton e-mailed Dr. Long, 

and continued to disparage the Respondent: 

We all make mistakes, but purposeful 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 

of a tnisunderstanding. BFC knew what they were doing .... 

Mot., Ex. J, Oct. 3, 2012, 3:33pm e-mail. 

On October 5, 2012, Inspector Rushton e-mailed Dr. Long and identified for him specific 

fact evidence the FAA needed in order to help prove the accusations against the Respondent. 

(Mot., Ex. J, Oct. 5, 2016 2:15pm e-mail.) Dr. Long immediately responded by e-mail with short 

answers, responsive to the information Inspector Rushton sought. (Mot., Ex. J, Oct. 3, 2016 2:50 

pm and 2:56pm e-mails.) However, the EIR disclosed 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, 20 16.) The Investigation Notes identify ''Alan Long" as the witness, and 

contains a handwritten statement- but these "Notes" were not signed or dated 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 vilified the Respondent. For example (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, 1 1: 10 am e-tnai I); 

3. The Respondent was 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 of 41 
5. The Respondent needed to be "taken down." (Mot., Ex. J, Oct. 12,2016, 10:57 am email); 

6. The Respondent would repeat the offense(s) if the Respondent was allowed to 

''walk". (Mot., Ex. J, Oct. 12, 2016, 10:57 am e-tnail); 

7. Dr. Long needed 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, Inspector Rushton e-mailed Dr. Long again, in a follow-up to an 

unrecorded conversation he had had the previous day (i.e., October 10, 20 12) 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, Inspector Rushton informed Dr. Long that 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 conversation between Dr. Long and the two FAA employees, because "the 

better case I can make on paper, the more likely he will settle and all of this will be closed." (!d.) 

The next day, on October 12, 2012, Dr. Long provided a fourth (4t11

) statement. Inspector 

Rushton accepted this fourth statement as "relevant" to the proof of the 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 Other Arguments 

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 

"no harm" had occurred to anyone. (April 13,2016 Tr. 25:7-8.) Alternatively, the FAA blamed 

the Respondent for Inspector Rushton's communications, and minimized and excused Inspector 

Rushton's conduct and statements. 

For example, according to 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 of 41 
argued that Inspector Rushton's e-mail communications were necessary in order to "encourage" 

Dr. Long to give a "full accounting" of his 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 of events." (Resp. 12.) Inspector 

Rushton echoed this position in his testimonial statement, by describing his e-n1ails as "the emails where I encourage Dr. Long to tell the whole truth .... " (Ex. A 1 ~ 5.) 

This Court expressed concern about the 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 of the 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 or tampering of Dr. Long did not rise to 

a level of a chargeable crime36 is not dispositive of the 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, obtain his cooperation, and influence his testimony about the Respondent's alleged 

September 18, 2012 violation. He also provided information to Dr. Long to 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 promise that the 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 or perverting 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 of 41 
administered fairly and objectively.37 He did not conduct his investigation with any "good faith" 

or "even-handed consideration" of the Respondent's position or circumstances. Instead, 

Inspector Rushton rushed to judgment, and repeatedly expressed condemning judgments and 

opinions about the Respondent with Dr. Long. 38 Inspector Rushton persuaded Dr. Long to share 

his vilification of the Respondent, and to provide information as shaped and directed by the 

FAA. This is a "polluting" of, or tampering with, a witness. It is deliberately altering and 

shaping the perceptions and testimony of a potential witness to suit one's own goals. Such 

ta1npering destroys the credibility and value of any testimony such witness might offer. 

In short, Inspector Rushton tampered with the perceptions, beliefs, and testimony of Dr. 

Long, a third party witness. He destroyed both the value of Dr. Long as a credible witness, and 

also demonstrated his own lack of objectivity and fairness. 

Inspector Rushton'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 (or the public) might have had that the Respondent would be treated fairly in this 

particular enforcement process.

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. I I, 

2016, I :27 pm e-mail ("we also live in America where people are innocent first (thankfully) and the burden of proof 

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 staff must 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 of his staff should "state a personal opinion as to the justness of a cause, 

the credibility of a witness, [or] the culpability of a civil litigant." Model Rules ofProfl Conduct r. 3.4(e). 

45 The ABA Model Rules specifically recognizes and discusses the "unique dangers of improper 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 "assisting or associated'' 

\Vith the prosecutor's office ·'ti·om making improper extn~judicial statements. even when such persons are not under 

the direct supervision of the pmsecutor." Model Rules of Prof' I Conduct r. 3.8, cmt. 6. 

46 As noted by the Respondent (Supp. 5), Inspector Rushton's condemnation of the 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 or who read his e-mails or investigative communications. 

Page 19 of 41 
VII. INITIAL INTERFERENCE WITH RESPONDENT'S RIGHT TO DISCOVERY 

The Respondent generally alleged the FAA had 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 if he helped the FAA, and also instructed Dr. Long not to talk to, or share 

information with, the Respondent. 

· As noted earlier, the FAA's investigation began on September 20, 2016, and Dr. Long 

was interviewed for the first time by Inspector Rushton on September 21, 2016. As noted above, 

during this critical time Inspector Rushton was shaping Dr. Long's opinions and perceptions,47 as 

well as prmnising to "keep" Dr.. Long "out" ofthe proceeding. (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 Inspector Rushton had indeed made such a promise: 

Even if you signed something, I give you my word that you will be left out of this ... I 

know you don't want to be involved and I will keep you out of this[.] 

Mot., Ex. J, Oct. 3, 2012 e-mail. 

One day later, on October 4, 2012, Inspector Rushton asked Dr. Long to "keep all of this 

to yourself to help us." (Ivlot. Ex. J, Oct. 4, 2016, 3:36 pn1 en1ail.) He also told Dr. Long that the 

Respondent "does not need to know what 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 KBH M" 

who could be "good alternatives" (i.e., other than 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 of 41 
confirmed with Inspector Rushton that he would refuse to speak to the Respondent about the 

FAA investigation.48 (Mot. Ex. J, Oct. 4, 2016, 3:53pm e-mail.) 

Six ( 6) days later, on October 10, 2012, Inspector Rushton sent a Letter of Investigation 

("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 of the LOI, the Respondent attempted to discover and preserve evidence, by 

contacting Dr. Long and asking to speak to him about the FAA's allegations. (Mot. Ex. J, Oct. 4, 

2016, 3:53pm e-mail.) Dr. Long did not respond to the Respondent. Instead, Dr. Long 

forwarded the Respondent's email to Inspector Rushton (Mot. Ex. J, Oct. 12, 2016, 9:27am 

email), and reaffirmed to Inspector Rushton 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 Inspector Rushton first told Dr. Long to "do whatever you need," he then urged Dr. 

Long "to remember" that the Respondent was guilty and knew "the hammer is about to fall. "(/d.) 

Inspector Rushton encouraged Dr. Long to believe that the Respondent had deliberately 

endangered Dr. Long's wife and family. (ld.) The Respondent had "played" with safety of Dr. 

Long's family, because the Respondent was greedy and selfish and guilty. (ld.) 

This is about greed, and a complete lack of concern for others and safety all in the 

interests. of making a buck. He proved to me that he doesn 'f care 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 emai I correspondence 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 Royal Avionics Sys., Inc., CP99WP0021, 2002 WL 1042303, at *3 (Apr. 15, 2002) 

("Although a letter of investigation does not satisfy the limitation period set forth in 49 U .S.C. § 4630 I (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 of Werle, FAA Order No. 97-20 at 8-9 (May 23, 1997)). 

Page 21 of 41 
Inspector Rushton also subtly warned Dr. Long that there could be negative 

consequences if Dr. Long spoke to the Respondent: 

Do what you want and I don't care, but understand this, this is not his first rodeo. If he 

walks he will do this again to somebody else just like you. 

!d. 

Thirteen (13) minutes later, Inspector Rushton sent a second email to 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, 11:10 pm email). The next day Dr. Long e1nailed 

Inspector Rushton and assured him: "We're all cool. I totally agree with everything in your 

emails and voicemai1."50 (Mot., Ex. J, Oct. 13, 2016, 6:13pm email). 

As demonstrated by Dr. Long's preserved records, Inspector Rushton 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 of fairness 

for the civil penalty enforcement program. The FAA in this case has failed to abide by the 

fundamental concept, well-established in American jurisprudence that an accused person is 

innocent until proven otherwise, and that such person has the right of access to discovery. This 

concept was not only adopted by the FAA Administrator when he established the safety 

50 Neither Inspector Rushton nor Dr. Long kept a telephone record log regarding Inspector Rushton's voicemail 

message. It must be presumed, on behalf of the Respondent, that the voicemail message contained similar 

condemnations of the Respondent and warnings about communicating with the Respondent. 

Page 22 of 41 
enforcement program and created its guidelines, it is also codified in both FAA Order 2150.3 B 

and in the ABA Model ·Rules. 52 Sanctions should be imposed. 

VIII. ALLEGATION OF PHYSICAL EVIDENCE DESTRUCTION 

The Respondent's allegation of physical evidence destruction 5

4 spans both the initial 

investigation time period (September 20, 2012- March 7, 2013) and the enforcement action time 

period (March 8, 2013 - December 4, 20 14). 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 (or most) of Inspector Rushton's e-mail 

correspondence with Dr. Long. (Resp. 2). The FAA first argued that Inspector Rushton's e-mail 

communications were not relevant, and so their destruction or loss was not relevant. 

Alternatively, the FAA argued that even if Inspector Rushton's e-mail communications 

were relevant to the case, their destruction was inadvertent. As part of this argument, Inspector 

Rushton testified that he had routinely and periodically deleted electronic information from his 

local computer database before he transferred to the FAA's Denver, Colorado Field Office in the 

"fall of 2013" because of size 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 of the electronic evidence had been routine and inadvertent. 

A. FAA's Goal- Preservation of Relevant Evidence 

According to the FAA's published enforcement guidelines, when a safety enforcement 

action is initiated, the FAA office conducting the investigation '"obtains an Enforcement 

52 See, e.g., Model Rules ofProrl Conduct r. 3.8 cmt. ("[I]!\ prosecutor has the responsibility of a rnlnistcr or 

,iustice and not simply that of an advocate. ·rhis responsibility carries with it specitic obligations to see that the 

defendant is accorded procedural justice ... '') 

54 This accusation of destroyed evidence is often referred to as "spoliation" of evidence. Jay E. Grenig & Jeffrey S. 

Kinsler, Federal Civil Discovery and Disclosure, § 16: I (3d ed. 20 15). · 

Page 23 of 41 
Investigative Report" ("EIR"), which "initiates" the EIS database record 5

5 for the case. (FAA 

Order 2150.3B, Chapter 9.3(a).) The EIR is the critical "means for documenting, assembling, 

organizing, and presenting all evidence and other relevant information obtained during an 

investigation." FAA Order 2150.3B, Chapter 8.1. An .FAA investigator is required to "gather all 

material, relevant evidence that either proves or disproves 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 

''must be tnade within 48 hours of the occurrence of the event" (ld. at 9.3(b)), and maintained for 

a minimum period of five (5) years after the civil penalty has been paid (or waived). FAA Order 

2150.3 B, Chapter 2.1 O(b )(2). In addition, during all phases of the investigation, the FAA 

investigator is supposed to exercise "common sense and good judgment." (FAA Order 2150.3 B, 

Chapter 4.1.) 

B. Preservation Even Before Formal Litigation Commences 

The FAA's preservation 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 of relevant documents." If a party does not put in place 

a ~'litigation hold.'' they risk sanctions if any electronic evidence relevant to the 

litigation is deleted or destroyed sotnetin1es even without culpability. 

126 Am. Jur. Proof of Facts 3d 1 (Originally published in 2012) (footnote omitted). 

This requiretnent for preservation and disclosure of evidence "applies to all potentially 

relevant ite1ns" known. to a party, "whether or not supportive of its 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 {.ll1d Disclosure, § 1:1516: ·1 (3d ed. 

2015). 

lt cannot be overen1phasized that any writing or other matter relating to a case, which is 

either in the possession or control of an adversary, is subject to disclosure. The type of material 

subject to preservation and disclosure '"must be liberally construed." 27 C.J.S. 2d § 104 (2011). 

This obligation of a party to preserve and disclose what it has under its control is "based on 

ancient principles of equity," 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's published record-keeping guidelines, the EIR database for this case 

should have been opened (at the latest) within 72 hours of September 20, 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 on the case. This includes any investigative communications with Dr. Long 

or other potential 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 then potentially reviewed by multiple FAA employees (unidentified). 

During the investigation or review process, documents might be added to, or selectively deleted 

from, the IFile. If the 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 of the case, might (or 

might not) include all of the preserved IFile material. (May 5, 2016 Tr. 49:2-22.) 

Page 25 of 41 
The 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, if Inspector Rushton did not gather and preserve "all evidence and 

other relevant information obtained during an investigation" (FAA Order 2150.3B, Chapter 8.1 ), 

the FAA counsel would be unaware of such 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 if I had 

documents on this case (other than what was in the EIR). I called him and told 

him that I did not have any documents. I told him this because I did 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 of those 

etnails he determined to be "significant" in the investigation. (!d.) In response to the FAA 

counsel's inquiry after the 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 of the "relevant" e-mails he 

exchanged with Dr. Long. 5

7 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 ~ I 0.) 

Among other arguments, the FAA asserted that Inspector Rushton's destruction of 

evidence was part of a routine deletion, because of email storage limitations with an old 

computer progran1. This argument by the FAA was unpersuasive. 

56 This internal disconnect between FAA counsel and the FAA investigative staff appears to deviate from 

recommended practice in fair adversarial proceedings. See, e.g., ·Model Rules of Prof' I Conduct r. 3.8, cmt. 6 and 

Fn. 37. supra. 

57 It is noteworthy that neither Inspector Rushton nor FAA counsel ever specified which, if any, of Dr. Long's 

preserved emails Inspector Rushton thought he had saved as "relevant" to the case. 

Page 26 of 41 
All parties to the litigation are required to preserve ... evidence. Therefore ... once the 

plaintiff had access to the relevant information, the plaintiff needs to take affirmative 

steps to preserve the information and cannot blame the defendant if it is destroyed. 

126 Am. Jur. Proof of Facts 3d 1 (Originally published in 2012) 

The FAA had the responsibility, just as the respondent has during the investigation phase, 

to preserve relevant data for litigation. In the Matter of Royal Avionics Sys., Inc., CP99WP0021, 

2002 WL 1042303, at *3 (F.A.A. Apr. 15, 2002)('~Although a letter of investigation does not 

satisfy the limitation period set forth in 49 U.S.C. § 46301(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 

q(Werle, FAA Order No. 97-20 at 8-9 (May 23, 1997)). The FAA has a variety of options and 

resources to ensure retention of litigation data, but it failed to preserve it in this case. 

The FAA also argued that the destroyed e-mails were not relevant, 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 or less probable." Fed. R. Evid. 401 (a). lt is anything that "'is of consequence 

in determining the action." ld. at 40l(b). Relevant evidence also includes "background" 

inforn1ation, which may help understand disputed issues. (ld., Advisory Con1n1ittee Notes, 1972 

Proposed Rules). Unless otherwise lin1ited by court order, the scope of discovery 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 ). If there 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 1night be useful to an adversary. While a litigant is 

under no duty to keep or retain every docun1ent in its possession ... it is under a 

duty to preserve what it knows, or reasonably should know, is relevant in the 

action, is reasonably calculated to lead to the discovery of admissible evidence. is 

reasonably likely to be requested during discovery and/or is the subject of a 

pending discovery request. 

126 Am. Jur. Proof of Facts 3d 1 (Originally published in 20 12) 

Page 27 of 41 
'rhus~ any FAA e-mail communications with a potential witness~ which involve any 

discussion~ inquiry, statement, or response regarding the investigation or the people involved in 

the investigation, is relevant and should be preserved. This duty of preservation is particularly 

i.mportant when the individual tasked with preserving the evidence is neither a lawyer nor legally 

trained to understand the broad scope of evidentiary value (both inculpatory and exculpatory) 

that any such con1mtmications might hold. It is critical to preserve such evidence for litigation. 

especially when an opposing party might seek to address the n1otivations, potential bias, and/or 

credibility of a potential witness. This preservation responsibility is a cornerstone of our judicial 

system, whose goal is to find the truth through honest and orderly production of evidence 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 cannot be sure of what actually happened, but at the time I deleted these emails, 

probably either did not realize [needed to keep them, or thought I had already 

printed them out, and then deleted them not realizing that there was no hardcopy. 

Resp., Att. A, Declaration of Yancey Ruston, 2, ~ 10 (italics added).) 

5. I have reviewed the portions of the emails between Dr. Long and I that are 

printed in the "Motion for Sanctions." I did not include these e-mails as Items 

of Proof in the EIR because, in my judgment, thee-mails where I encourage 

Dr. Long to tell the whole truth about the flight didn't prove or disprove 

anything about the case, and Dr. Long's initial written statement was 

incomplete and duplicative of his more complete, later written statement. We 

·do not include every single e-mail exchange as Items of Proof in our EIRs, 

only those that add something to 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 strengthened the case he was 

pursuing against the Respondent and that he believed "seemed important" to the FAA's proof of 

59 Based on the record, it is unknown what e-mail communications (if any) Inspector Rushton ultimately did 

preserve and include in the EIRas "relevant' material. 

Page 28 of 41 
the case. (Resp. Ex A, 1 ~ 2.) Thus, Inspector Rushton failed to identify and preserve all relevant 

evidence, particularly exculpatory or background information that might have been helpful to the 

opposing side. See, e.g., ABA Model Code Rules 3.4 and 5.3. Therefore, it must be assumed on 

behalf of the Respondent-the disadvantaged party-that Inspector Rushton tnay have 

selectively withheld other relevant investigative information from the EIR as well, which is still 

unknown or which may never be recovered. Sanctions should be imposed. 

IX. ALLEGATION OF DISCOVERY OBSTRUCTION 

The Respondent's allegation of discovery obstruction occurs during the formal 

adjudication time period (December 5, 2014- present). In its Motion, the Respondent alleged 

that the "behavior and conduct" of the FAA counsel "completely compromised the integrity of 

the case." (Mot., 11.) As part of the 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 in the discovery process, inferred wrongdoing by the Respondent in 

obtaining the subpoena, and advised Dr. Long to consider how he might avoid disclosing 

information requested by the Respondent's subpoena. 

For example, on August 21, 2015, the FAA attorney notified Dr. Long via e-mail that 

even though discovery "technically ends today" the parties were going to continue to "provide 

each other with information past the close of discovery." (Mot., Ex. M, August 21, 2016 4:10 pm 

e-mail.) As part of this 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 of the 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 Subpoena to Dr. Long at the Respondent's request pursuant to 14 

60 The record demonstrates that shortly after the 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 

of time. 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 of August 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 September 2016, and Granting Other Relief. 

Page 29 of 41 
C.F.R. § 13.228(a). This Subpoena included a Rider, requesting Dr. Long to produce for the 

Respondent all relevant documentation in his possession. (Mot., Ex. H.) The subpoena did 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 seeking the subpoena. The FAA attorney recommended to 

Dr. Long that he and/or his attorney might look for ways to avoid answering the subpoena on 

multiple grounds: 

IF and when you receive such a subpoena, please contact me (or have your 

attorney contact me). The requests appear to be improper in whole or in part, in 

that we are past the point in this litigation where new discovery requests have 

been made, and in that the requests appear to seek documentation that is not 

relevant to this case. You and your attorney may, of course, be able to identify 

other problems with regards to this request. If you receive the subpoena, you will 

be required to comply with it unless something is filed with the court seeking 

relief from 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 subpoena pursuant to 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 of the 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 October 27,2015, 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 subpoena on 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 I note is dated almost a month before it was 

served)~ Many of the questions seem overbroad as well, but I can't speak as to 

Page 30 of 41 
how burdenson1e they would be without your input. An objection and/or n1otion 

to quash to sotne or all of the requests can come from n1y office or directly from 

you (presumably through your attorney). Please give me a call (and/or have your 

attorney give me a call) and we can discuss what response (objection, motion, 

compliance, or otherwise) is appropriate. 

(Mot., Ex. K, Oct. 27, 2016, 1:20 p.m., FAA e-mail.) 

Dr. Long immediately responded, and confirmed that 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 contact occurred, and if it 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 of discovery obstruction, the FAA asserted that it had done 

nothing itnproper. The FAA asserted that the Respondent's request and service of the subpoena 

on Dr. Long was untimely, and in violation of the Court's discovery 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's discovery orders. It also argued that it had every right to 

provide advice to its own witnesses~ 

Did the FAA engage in 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 FAA Administrator's published goals of fairness in administering the 

program, as well as to well-established ABA standards for ensuring due process fairness in 

adversarial litigation practice. 

Second, as discussed during both the Apri113, 2016 and May 5, 2016 Motion 

Conferences, this Court cannot agree with thy FAA's assertion that the August 21,2012 deadline 

for exchanging discovery, established by the April 7, 2015 Order (Order, 3 ~ 9), remained in 

effect after the issuance of the 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, 20 16) 

Page 31 of 41 
to allow the parties to complete discovery exchange, file and argue any needed pre-hearing 

motions, and to propose a new litigation plan regarding any outstanding, deficient discovery · 

issues and other matters. 61 As noted by this Court on May 5, 2016, the parties still had not filed 

any joint litigation plan, although the FAA did file an untimely unilateral plan, which the Court 

has not adopted. 

Third, the FAA's argument that the Respondent's subpoena fell outside the court's June 

19, 2015 deadline to "issue subpoenas" (Resp. 5) was a broad misreading of the 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 and experts" prior to 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 the issue here. 

Fourth, this Court would disagree that the FAA's obligation to comply with a court order 

allowed it to encourage third party 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 FAA had a responsibility to first informally discuss its concerns with the 

Respondent. If discussion with the Respondent did not resolve the matter, then the FAA should 

have immediately filed an objection or motion, with supporting fact 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 of a subpoena on Dr. Long was not a 

violation of a court discovery deadline. It was not an untimely attempt to schedule a deposition 

with Dr. Long. The subpoena was not directed to the FAA or any employee or agent of the FAA. 

The subpoena was not attetnpting to compel the FAA to "disgorge whatever facts" it had its 

"possession" as part of a 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 of 41 
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 

subpoena for Dr. Long was obtained from the Hearing Docket Clerk on September 23, 2015, 

. which was only three (3) weeks after the Court had continued the 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-approximately eleven (11) months before the newly set 

September 13, 2016 Hearing, and within the general time frame allowed by the September 1, 

2015 Order for the parties to complete any discovery prior to the newly set September 2016 

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 of that 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 early to allow for full and early disclosure of material to the opposing 

side. See also, Diversified Industries, Inc., v. Meredith, 572 F.2d 596, 604 (8th Cir.1977) 

("Prudent parties anticipate litigation, and begin preparation prior to 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 a joint proposed plan on or before October 

15, 2015, so that a new joint procedural order might be issued, but they failed to do so. (Sept. I, 2016 Order, 6 ~ 5.) 

65 A detailed discussion ofthe parties' mutual obligation to conduct factual investigations is contained in Airborne 

Maintenance and Engineering Services, FAA Docket FAA-20 13-0291 (Order Denying Respondent's Motion to 

Compel Discovery of FAA Attorney's Work Product) (Aug. 19, 20 14). 

66 The Work Product Doctrine is a comprehensive study of the history and development of the work product 

doctrine and the application of Rule 26(b)(3), from common law to 1983 (the date of publication). 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 of Final Rule), and Fn. 46, supra. 

Page 33 of 41 
cOinmenced. 'l It is recognized, however, that investigations may be 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 protect their opponent's right to 

conduct an independent investigation. Model Rules ofProfl Conduct at r. 3.4(a). The ABA 

Model Rules specifically mandate that a lawyer "shall not ... counsel or assist" anyone (other 

than a client) to "refrain from· voluntarily giving relevant evidence to another party." !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 of Prof l 

Conduct r. 2.1 (Am. Bar Ass'n 1983). However, the FAA's ability to provide counsel to its own 

client, or to 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 never obstruct the opposing party's access to third party 

witnesses or evidence. 

In the instant case, the FAA failed to protect and support the Respondent's right to 

independently investigate and fact gather, both at the initial and adjudication stages of this 

proceeding. The FAA was absolutely in error when it contacted Dr. Long, a third party witness, 

to criticize the Respodnent, imply that the Respondent was engaged in wrong-doing, and then 

recommend to Dr. Long and his attorney that they consider avoiding the subpoena by objecting 

to it or moving to quash, based on the multiple grounds offered by FAA counsel in support of 

that purpose. While the FAA's efforts to obstruct the Respondent from obtaining evidence from 

Dr. Long were not ultimately successful, it was harmful, both to the Respondent's perception of 

fairness and by the non-compliance with the well-established standards requiring adversarial 

counsel to support fair proceedings. Sanctions should be imposed. 

Page 34 of 41 
X. ALLEGATIONS OF OTHER DISCOVERY VIOLATIONS 

A. Did the FAA counsel deliberately withhold relevant, disclosable documents on or 

August 24, 2015? Not Proven. 

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 alleged that even if the FAA counsel had been ignorant of Inspector 

Rushton's earlier destruction of relevant evidence, Dr. Long provided 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 argument regarding what the FAA attorney knew, and/or had in his 

actual possession from Dr. Long between the dates of August 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, on both September 30, 2015 and October 27, 2016, presumptively indicated that 

the FAA knew, as of August 24,2015, the damaging content of Dr. Long's preserved material. 

ln response, the FAA asserted that Dr. Long had not disclosed to it all the documents that 

Dr. Long possessed. Instead, on or about August 24, 2015 Dr. Long had provided only eleven 

(11) documents, seven (7) of which the FAA deemed relevant and disclosed. (Resp. Ex. B, 1 ~5.) 

The FAA's counsel testified that he did not have knowledge or possession of Dr. 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 of why Dr. Long had not provided FAA counsel in August 2015 

with the volUine of materials 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 merit to this argument. 

Based on the FAA counsel's testimony, it appears he framed his August 2015 discovery 

request to Dr. Long to limit material. Specifically, his request to Dr. Long was narrowly focused 

Page 35 of 41 
on obtaining "emails about the flight" (Resp. Ex. B, 1 ~ 5), instead of his more expansive request 

to Inspector Rushton (and others), asking for "any statements taken 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 about the FAA's 

August 2016 request. 68 (Resp. Ex. B, 1 ~ 5.) Dr. Long then submitted only eleven (11) pages of 

material. Given the record 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's testimonial statement as dispositive on this issue, and the Respondent's 

allegation is deemed not proven. 

B. Did the FAA fail in its duty to obtain and provide complete evidence from Dr. 

Long and/or Inspector Rushton? Yes. 

Finally, the Respondent asserted that the FAA had failed in its duty to obtain complete 

evidence from either Dr. Long or Inspector Rushton after this Court had issued two different 

discovery Orders69 and the Respondent had propounded multiple discovery requests. 

In response, the FAA asserted that all "releasable" portions of Inspector 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 of the Respondent's 

inforn1al March 16, 2013 request (i.e., filed eight (8) days after the issuance of the March 8, 

2013 NPCP); and, 2) on April17, 2015 as part of the FAA's discovery response. (Resp. 2.) In 

addition, the FAA counsel submitted a Declaration identifying the August 24, 2015 discovery 

requests he made to 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 of data 

that Inspector Rushton 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 of this 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 September 2016, and Granting Other Rei ief 

Page 36 of 41 
preserve relevant evidence. He also failed to promptly apprise counsel, at any time prior to being 

advised about the Respondent's November 18, 2015 Motion, which contained all of Dr. 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 surprising that FAA counsel, who was not involved i.n the FAA's 

collection and preservation of evidence in this case, did not know about all the missing data. 

Thus, FAA counsel was unaware he needed to press Inspector Rushton for answers about the 

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 Inspector Rushton 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's job 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 or Dr. Long after this Court issued discovery orders and the Respondent 

propounded multiple discovery requests. Sanctions should be imposed. 

XI. SANCTIONS 

The Respondent has requested the imposition of sanctions 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 of sanctions for discovery violations or failures 

is "extremely fact sensitive." Grenig and Kinsler, supra, § 1:2:1. It must be done on a case-bycase basis, and rests in the sound discretion of the court.Jd. §§ 1:96, 12.3. In order to be 

effective, sanctions must be applied diligently to penalize those whose conduct warrants such 

action. I d. § 12:1. 

Page 37 of 41 
In adversariallitigation, sanctions may range from merely drawing an adverse inference 

from the suppression of the evidence to very serious preclusions, including dismissal of the 

offending party's case. 

70 !d. § 1:11; see also, 27 C.J.S. 2d §§ 104-117 (20 11 ). If discovery 

sanctions are imposed, short of dismissal of the case, such sanctions are generally not reviewable 

until the end of the 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) whether the offending party acted innocently, carelessly, grossly 

negligent or willfully; 2) the efficacy of lesser sanctions; 3) the importance of the information 

sought in discovery; 4) whether the offending party ever produced the information and how; 5) 

the public policy aspects of the litigation; and 6) the remorsefulness of the offending party 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 proceeding with its prosecution. Since public policy promotes 

deciding cases on their merits, striking pleadings that 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 certain e-mails exchanged between Inspector Rushton and Dr. Long, although 

destroyed by Inspector Rushton, have been recovered from Dr. Long via subpoena. If the 

recovery of this data was the only problem, striking the pleadings 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 of the issue. 71 

As previously discussed herein, Dr. Long's preserved e-mails demonstrate the following: 

1) the FAA failed to abide by a cornerstone tenet of our judicial system and its own civil penalty 

70 However, as noted earlier herein, the FAA Rules in civil penalty proceedings do not allow dismissal of the 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 38 of 41 
enforcement program-to treat an accused fairly and objectively throughout all stages of a 

proceeding; 72 2) the FAA willfully influenced and tainted the perceptions and beliefs of Dr. 

Long, a primary witness, in an effort to obtain damaging evidence against the Respondent, 3) the 

FAA willfully interfered with and blocked the Respondent's right to discovery during the initial 

stages of the investigation; 4) the FAA investigator destroyed relevant evidence during both the 

investigative and enforcement stages of the proceeding; 5) the FAA willfully and persistently 

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

adjudication phase of this action; and, 6) the FAA actively obstructed discovery during the 

adjudication phase of the proceeding when it encouraged Dr. Long and his attorney to avoid 

answering the Respondent's ~ubpoena. The entire record also demonstrates that the FAA failed 

to take necessary precautions to ensure the preservation of, and the full disclosure of,' relevant 

evidence. Taken as a whole, these are not just individual discovery failures in non-compliance 

with Court orders and discovery requests, they are a demonstration of willful 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 of the enormity of the FAA's task to enforce its regulations, as 

well as the FAA's challenges in working with a wide swath of business partners in the aviation 

community-many of whom either ignorantly or willingly try to avoid compliance with safety 

regulations. It is a difficult task. But it is a task that is possible to accomplish without violating or 

circumventing the due process fairness standards that are the bedrock of both the FAA 

Administrator's enforcement program and federal litigation as whole. 

It might be hoped that the facts of this particular case highlight an isolated incident and 

rare exception in the FAA investigation Field Offices, instead of a hidden norm. However, the 

FAA's casual dismissal of Inspector Rushton's conduct and communications as ""necessary" 

(Resp. 11, fn. 4), its arguments that Inspector Rushton's problematic communications with Dr. 

72 It should also be noted, on behalf of the 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 of Inspector Rushton's vilification of the Respondent, in the three and a 

half (3.5) years since the investigation of this case first began. 

Page 39 of 41 
Long were simply part of any FAA investigator's job when ''asking a witness to provide a full 

and complete statement of events", (Resp. 12), its failure to preserve relevant evidence, its 

persistent vilification of the Respondent during a pending action, its ongoing attempts to obstruct 

the Respondent's right to discovery, and its lack of any acknowledgement that its actions 

substantially deviated from well-established due process standards, may indicate otherwise. 

When the FAA published its Rules in 1990, the FAA Administrator expressed 

high hopes that the aviation community and members of the public, who had filed written 

concerns about an FAA internally administered program, would be won over with the 

FAA's administration of a fair civil p~nalty enforcement program: 

[T]he agency believes the civil penalty assessment authority has been 

administered fairly and in good faith from its inception, and fully expects to win 

the confidence of the aviation community, as well as the general public .... 

55 Fed. Reg. 27548,27551 (Jul. 3, 1990) (Discussion ofFinal Rule). 

The FAA Administrator's expressed hope did not materialize in this particular case. The 

FAA's "no harm", it was "necessary", it was the Respondent's fault, it was just routine 

destruction, and other arguments defending against the allegations in this case, and arguing 

against sanctions, were not persuasive. In short, the FAA's actions in this case were completely 

contrary to both the FAA Administrator's published goals of fairness 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 enforcement program as a whole. 

This Court has engaged in a very careful consideration of the 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, Chapter 2.3(g) (an acc'used has a "right" to be treated fairly) and 55 Fed. Reg. 

27548, 27551 (Jul. 3, 1990) (Discussion of Final Rule)(the respondent's rights of fairness and due process begins at 

the inception of the FAA's investigation and continues through to the final resolution of any 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 of its investigative employees 

to ensure due process compliance. Model Rules of Prof! Conduct r. 3.8. 

Page 40 of 41 
also to deter any future misconduct of a similar nature. All the facts in this case, the wellestablished legal and professional standards in the litigation process, caselaw, legal sources, and 

the possibility of imposing various less severe sanctions have been reviewed and considered in 

depth. This Court has also considered the seriousness of the conduct, the impact the conduct has 

had on both the case and in the administration of justice, and whether there was a pattern of 

wrongdoing throughout the proceeding. 

As detailed fully in this Order, the FAA has engaged in discovery misconduct. This 

n1isconduct should not have occurred. It should never occur again. As a result, this Court agrees 

with the Respondent that the appropriate and proportional response to the discovery violations 

and misconduct herein is to strike the applicable portion of the FAA's pleadings. 

Pursuant to 14 C.F.R. §§ 13.217(f)(l) and 13.220(n)(l ), the instructive guidance of Rule 

37, and after reviewing all relevant caselaw, 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 of the FAA's December 15, 2014 pleadings are hereby stricken as 

a sanction for the FAA's misconduct in this case: Paragraph II, page 1 §§ (2) and (3). No 

facts regarding these two struck pleadings may be introduced into evidence. 

3. Upon receipt of this Order, either party n1ay move for additional relief. 

Attachment: Service List 

Page 41 of 41 
Docket No. FAA-2014-0867 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 000 1 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Adn1inistration 

Office of the Regional Counsel, AS0-7 

Southern Region 

1701 Columbia A venue 

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. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey 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-Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.