### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS, WASHINGTON, DC : l'' 

### In the Matter of: ) DocketNo. FAA-2014-0867 ) 

### BIRMINGHAMFLIGHT CENTER, INC. ) ) 

### Respondent. ) Judge J.E. 

### Sullivan FAA CaseNo, 2012S0090053
RESPONDENT'S REPLY TO THE FAA'S RESPONSE IN OPPOSITION OF RESPONDENT'S MOTIONFORSANCTIONS 

### Now Comes the Respondent, BirminghamFlight Center, by its attorneys, Barnett & 

### Borth, LLC, and in replyto the FAA'sresponse to its Motion for Sanctions states as follows: The FAA's Conduct Warrants Sanctions. 

### The FAA can only operate by and through its agents including its investigator, Mr. 

### Rushton, and its counsel. As demonstrated byMr. Rushton's Declaration and FAA counsel's argument, the FAAwas inpossession ofthe subject e-mails and Dr. Long's October 1 statement atrelevant times during the investigation, the time when the Respondent requested the EIR, thetime whenthe letter ofinvestigation was served on the respondent and likely when the FAA filed this action. As set forth in Respondent's Motion, the FAA's ownpolicies andprocedures setforth in Order 2150.3B required the FAAto include the subject documents in the EIRprepared by Mr. 

### Rushton and likely reviewed by other FAA agents and attorneys priorto bringing this case. It is clear from the FAA'sresponse and Mr.

### Rushton's declaration thatthe failure to includethese documents in the EIR andto produce these documents byway ofinitial Rule 26 disclosures and/or response to the respondent's request for production was not merely inadvertent. The summary offacts section ofthe EIR apparently authored by Mr.

### Rushton makes no mention ofDr. Long's initial statement orthe e-mail correspondence (See ExhibitA). 

### (Tt does state that Dr. LongtoldMr. Rushton that: "the gloves are off
nowthathe has been flying my family and misrepresenting credentials". (See ExhibitA). Mr. Rushton succeeded in pollutingthis witness andturning an independentwitness into
an adversary ofthe Respondent. Mr. Rushton's objectivity and ethics, therefore, appear to be questionable. FAA Order 2150.3 B statesthatinvestigative personnel must conduct investigations promptly and "theymust gather and accurately and completelyreport all facts and conducttheir investigation in an unbiased and focused manner. A violation report without all the facts onlyleadsto delays that compromisethe objectives offair and responsive enforcement. An incomplete or inaccurate enforcement investigative report
can mislead reviewing officials andFAA legal counsel and resulting wrong or inappropriate actions beingtaken." 

### See, Order 2150.3B, Ch. 2 at p. 2-2

**~** 

### 3( e), 

### Investigation andReporting. It

### canbe well argued thatthe EIRinthis case was designed to misleadthe FAA's reviewing officials and counsel. The fairness provision ofthatFAA Orderprovidesthat "To be effective, the agency's compliance and enforcementprogram must be fair and reasonable and should beperceived as fair bythose subjectto regulation
... 

### Itdoes encompassthe right ofthe apparent violatorto be given objective, evenhanded consideration ofall circumstances surroundingthe allegations before final action is taken. It

### also requires good faith efforts to understand the apparentviolator'sposition and take itinto account, as well as to apprise the apparentviolator ofthe agency's position in a timelymanner. See, Order 2150.3B, Ch. 2 at p. 2-3

**~** 

### 3(g), 

### Fairness. The Respondent was stripped ofthe ability to
21Pagc

### get objective, evenhanded consideration ofall circumstances surroundingthe allegations before final action is taken when the EIRwas cherry picked ofapotentially exculpatory statement. According to Chapter 4 ofthe FAA's Order: "EnforcementInvestigative Reports (EIR) reconnnending legal enforcement action are reviewed by several FAA management levels atthe field office and the regional office, andbyFAA legal counsel before the agency decision is made aboutwhetherFAA legal counsel will initiate a legal enforcement action and, ifinitiated, the appropriate violations to allege andthe proposed sanction." See, 

### Order 2150.3B, Ch. 4 atp. 4-l 

### -,r 2(a)(l), Role of Investigative Personnel in EnforcementInvestigations. 

### Obviously since Mr. Rushton deliberately left outboththe subject documents and factual analysis respecting the subject documents from theElR the FAA's reviewing personnel and attorneys were left in the dark and could not consider this information before final agency decision topursuethe Respondentwas made. Mr. Rushton and FAA counsel attempt to givethis Courtthe impression thatthe destruction ofevidence was inadvertent and that the evidence destroyed and not disclosed to FAA decision makers or Respondent's counsel was simply irrelevant e-mail banter. An
on objective review ofthe documents demonstrates otherwise. FAA counsel's explanations ofhis (also previously undisclosed) e-mails to Dr. Long do notpass muster
nor do his attempts to show "good faith" by not quashing a subpoenarequesting pertinent and Iikely relevant documents. Without any evidence or documentation from an FAA information technology professional respectingthe so-called "Mail Jail", Mr. Rushton urges this courtthat despite theFAA's Orderto the contrary Mr. Rushton could merely "print out anything 

## 31 P' ,, (} P

- '-'' ,";;) "

### that seemed important". The FAAhas producedno document destructionpolicythat would explain "Mail Jail" or Mr. Rushton's destruction ofthese documents. Mr. 

### Rushton's supervisor's Declaration is silent about "Mail Jail", the constructs and practical application ofF AA Order 2150.38, and fails to corroborate anything thatMr. Rushton
swears to in his Declaration. (See Response ExhibitD). Mr. Rushton provides this Courtwith no date ortime on whichhe deleted the subject materials, butwe do knowthatis highly likely thatthese emails were still availableto the FAA andto Mr.

### Rushton atthetime that he dictatedhis summary offacts for the EIR. Obviously when he sat down to dictate his skewed summary offacts he would have had all ofthese documents at his disposal. He simply chose to delete the ones that would showhowhe attemptedto influence Dr. Long, the ones that demonstrate that Dr. Longhadbeen seekingthe Respondent's advice on potential purchase ofaplane of thetype demonstrated in the subject flight andespecially the email that attached the October 1 statement ofDr. Long thatreferenced exculpatory information helpful to the Respondent's case. Itis hard to fathom howone could prepare such a summary strictly from memory. Mr. 

### Rushton contradicts himselfin his declaration by averring that "my recollection was that I printedthese emails out andputthem inthe investigative file at the Birmingham FSDO". (See Rushton Declaration at -,r4). His "recollection", iffactually true would leave him with clean hands andwould, atleast in respect to the compiling ofthe EIR, be consistent withthe dictates ofthe FAA's Order 2150.38. However, Mr. Rushton then swears that "I did not include these emails as items ofproofin theEIRbecause, in myjudgment, the emails where l encourage Dr. Longtotell the wholetruth about the

### flight didn't prove or disprove anything aboutthe case, and Dr. Long's initialwritten statement was incomplete and duplicative ofhis more complete, laterwritten statement." (See Rushton Declaration at

**~5).** 

### Mr. 

### Rushton's sworn declaration clearly sets out his violation FAA's Order 2150.3B Ch. 8

**~I,** 

### Ch. 4

**~2(a),** 

### Ch. 4

**~** 

### 10 (a) and (c)(l0)(29)(30) and (31). He either printed outthe documents knowingthatthey were pertinent andrelevant and later destroyed them instead ofplacingthem inhis factual summary and in theEIR or he destroyed the original e-mails andDr. Long's statementknowing theywere pertinent and relevant and would likely be sought in discovery. Which is it? Either way, FAA counsel said nothing about either circumstance in response to theRespondent's discovery requests. Mr. Ruston knewupon readingthe documents uncovered by Respondent's subpoena thatthe documents were once in his hands and intheFAA'shands. He does not refute this fact nor does he clalin thatthese documents are newto him. Reasonably speaking, Mr. Rushton had to know ofthe existence ofthese documents when the FAA's counsel askedhim ifhe had orknew where to fmd such documents during discovery. However, the FAA counsel's discovery responses filed after speaking with Mr. 

### Rushton
on this subjectmake no mention ofthese circumstances (Mr. 

### Rushton printedthem out and lost them or Mr. 

### Rushton destroyed them) and no mention is made ofany attemptto
recover orreplace these destroyed documents from the FAA computers orfrom Dr. Long. It

### was only afterthe Respondent uncovered this evidence thatthe FAA provided any explanation concerning this evidence. FAA counsel declares that he spoke with Mr.

### Rushton about Respondent's discovery requests and thatMr. Rushton failed to say one word about theFAA's destruction ofthis evidence. FAA counsel states that the inclusion ofthe subject e-mails in the E!R or in discovery responses "was not required, or even expected." In

### FAA counsel'sworld, the FAAmay do as itpleases with information and witness statements obtained during its investigations andmay destroy information that it does not like atwill. Had the Respondent not smelled a rat and issued a subpoenato Dr. Longto see ifthe FAA's disclosures were complete, theFAA's destruction ofevidence and violations ofF AA Order 2150.3B wouldneverhavebeen broughtto light. The prejudiceto the Respondent inthe waythatMr. Rushtonconductedhis investigation and tainted the impressions ofthe FAA's keywitness, Dr. Long, cannotnowbe reversed. The Respondent could not argue or attempt to dissuade the FAA from bringingthis action at the informal conference using these documents becausethey were not contained in the EIR. 

### Accordingly, sanctions for this conduct are warranted. NeithertheFederal Rules
northe Rules ofthis Court countenance suchbehavior. TheFAA is correct thatthis court should notbe burdened byre-examining the entire investigation to decide for itselfwhat evidence an investigator neededto include in the file. (See Response atpp. 12-13). The
reason thatthe FAA's correct in this assumption is the fact thatthe FAA, by andthrough its investigators and attorneys, possessed a duty to preserve all documents obtained during its investigation so that the Respondent may obtainthose documents by way of discovery inthe event such informationwasnot included 

### in the ElR. The Respondent is entitled to rely on the FAA to preserve evidence andbe forthright 

### inthe disclosure of
6jPage

### documents obtained during its investigation. After all, the documents sought and obtained byway ofthe subpoenato Dr. Longwerethe same exactdocuments thatrequested from theFAA butwere destroyed. Apparentlythe new standard that shouldbe adhered to by attorneys representing airmen and certificate holders inthe defense ofFAA enforcement and civil penalty actions is thatthe completeness ofthe ElR cannot betrusted, informal conferences are fruitless endeavors since theFAA has deleted pertinentdocuments that can onlybe uncovered by a subpoena, the ethical conduct ofthe investigators cannotbe trusted and subpoenas duces tecum mustbe issued to ALL potential witnesses and entities to ensure that documents uncovered, butburied, during an FAA investigation maybe, hopefully, obtained. Contrary tothe representations made byFAA counsel and its investigator, the destroyed documents are relevantnot only to prove or disprove the allegations in the FAA's complaint, but also may serve a particularly importantrole forthe crossexamination oftheFAA's witnesses, especially since the evidentiaryrules applicable to this case allow for the use ofhearsay evidence atthe hearing ofthis matter. As FAA counsel correctly points out, he provided Respondent's counselwiththe FAA's response to Respondent'srequest for production ofdocuments on or about September 15, 2015. (SeeResponse atp.4). FAA counsel also correctlypointed outthat on September 29, 2015 Respondent's counsel senthim a letter detailingpurported deficiencies in the effort FAA's September 15, 2015 discoveryresponses. Artfully, FAA counsel states "Respondentmade no reference to requests for production 2 or 18" (See Response at p.4). Respondent'srequest for production number 18 requested: "All correspondence and

### e-mails sent to or sent from Dr. Alan Longrelated to the subject flight." (See Exhibit B). Respondent'srequest for production number 2 requested: "Complete copies ofall statements (oral, written, ortranscribed, signed or unsigned) by parties orwitnesses to this matter, including butnot limited to individuals who: has or claims to have knowledge ofany ofthe facts specified inthe Final Notice ofProposed CivilPenalty." (See Exhibit B). 

### According to FAA counsel'sDeclaration and ExhibitM ofRespondent's motion, FAA counsel contacted Dr. Longto see ifhe had any emails regarding this case. FAA counsel avers thatDr. Long produced only II pages ofdocuments. (See Stevenson Declaration at

**~5).** 

### A few days later, FAA counsel sent an email to theFAA's safety inspectors and Mr. Rushton asking for copies ofstatements and emails to and from Dr. Long (See Stevenson Declaration at

**~4).** 

### Interestingly, when the FAA counselrequested emails and statements from Dr. Long he onlyreceived 11 pages ofdocuments, but when Respondent's counsel served Dr. Long with a subpoena, far more emails, documents and Dr. Long's statement were produced. Prior toproducing the "11 pages ofdocuments" to FAA counsel, Dr. Long sentFAA counsel an email stating: "I'm working on getting this all out toyou today for delivery by Monday. When does discovery end?" (See Motion ExhibitM)( emphasis supplied). What exactly did FAA counselrequest from Dr. Long in undisclosed e-mail or conversation held on or about August 21, 2015? Mr. 

### Rushton was in possession ofDr. Long's October 1, 2012 statementthat detailed Dr. Long's pre-September 18, 2012 discussions with the Respondent concerning potentialpurchase ofan airplane, including a CJ 525 thatwas demonstrated inthis case, that occurredmonths before the subject demonstration flight. Rushton's declaration states

8!P"1o-e

**(~** 1:?

### that he routinelyprinted out "anythingthat seemed important" and that he didnot include Dr. Long's initial statement inthe EIRbecause itwas "incomplete and duplicative ofhis
more complete, laterwritten statement." (See Rushton Declaration**at~~** 

### 3 and 5). Based
on theFAA's numerous references andfootnotes concerning its theorythat the Respondent is making things up post hoc, this evidence is highly relevant. Paragraph 7 ofMr. Rushton's declaration graphically demonstrates howMr. Rushton attempted to influence Dr. Long in orderto obtain a favorable statementfrom Dr. Long. Are these bogus, unsubstantiated statements of"fact" and opinion really the sorts ofinformation that FAA investigators are taughtto state to independent witnesses as part oftheir investigatory purview? It

### does not appear so from an objective or liberal reading ofthe FAA's Order 2150.3B. With theFederal Rules apparently applicable to this case, the sanctions contained in the rules cited in respondent's motion should applyto the facts scenario thatthe court faces inthis case. The FAA makes much ofits assertionthatthis Courthas no authority to issue sanctions inthis case. Perhapsthe rule makers did not contemplate the behavior exhibitedbythe FAA inthis case. This Court does have inherent authority to manage the
case that are before it for review In 

### addition, further authority for sanction canbe found in 14 C.F.R. 

### § 13.207, 14 C.F.R. § 13.217 (f), 

### and 14 C.F.R. 

### § 13.220 (n). 14 C.F.R. 

### § 13.207 allows this court to sanction theFAA for certifying the veracity ofits discovery responses whenthe FAA knew or should have known, based on reasonable inquiry (the same inquiry thatwasperformed after the filing ofthis motion), that additional documents exist, thatthe FAA destroyed pertinent documents, and that such documents could be obtained through Dr. Long. Ratherthan informing the

### respondent's counsel, Mr. Rushton did not include Dr. Long's emails and initial written statement in the EIR, explaining the so-called "mailjail". The FAA's discovery response stated: "2. All statements inthe possession ofthe FAA were included in the EIRand copies were appropriate previouslyprovidedto the respondent. 25. Objection, privileged. The documents generatedbythe named individuals concerningthis case include deliberative process privileged materials, such as the abovereferenced opinions in the ElR
... Notwaiving and notwithstandingthose objections, all non-privileged documents have previouslybeen produced." Obviouslythose responses statements are untrue. 14 C.F.R. 

### § 13.207 (c) provides that under circumstances such as the presentthe administrative lawjudge shall: (I) 

### Strike the pleading signed in violation ofthis section; 

### (2) Strike therequest for discovery orthe discovery response signed in violation ofthis section and preclude further discovery bythe party; (3) Denythe motion orrequest signed in violation of this section; (4) Exclude the document signed in violation ofthis section from the record; (5) Dismiss the interlocutory appeal andpreclude further appeal onthat issue by the party who filed the appeal until an initial decision has been entered on the record; or (6) Dismiss the appeal ofthe administrative lawjudge's initial decision to the FAA decisionmaker. 14 C.F.R. 

### § 13.207 (c) 14 C.F.R. 

### § 13.217 (f) 

### provides for sanctions for failure to comply withjoint discovery schedule. In this case theFAA failed to comply withthejointdiscovery schedule inproviding full and complete answers to the respondent's discovery and failed to comply withthejointdiscovery order, paragraph 7, which imposes a duty to supplement or amend discovery. Under these circumstances the courtmay:

### (1) Strike thatportion ofa party's pleadings; (2) Precludeprehearing or discovery motions by thatparty; (3) Preclude admission ofthat portion ofa party's evidence at the hearing, or (4) Preclude that portion ofthe testimony ofthatparty'switnesses at the hearing. 14 C.F.R. 

### § 13.217 (f) 14 C.F.R. 

### § 13.220(n) provides the same sanctions as does 14 C.F.R. 

### § 13.217(f) for failure comply with a discovery order. While the behavior ofthe FAA maynotneatly fit within the confmes ofthe sanctions available in the Federal Rules or in Part 14, the FAA's behavior in destroying pertinent documents violating numerous sections ofFAA Order 2150.3 B, and polluting witnesses, sanctions for this conduct are warranted. The behavior and conduct ofthe FAA's inspectors and counsel completely compromised the integrity ofthe case warranting sanctions bythis Court. An NTSB rule that maybereferred to as persuasive authority is Rule 19(d)(l). Rule 19(d)(l) provides sanctions for the Administrator's failure to provide a copy ofreleasableportions ofEnforcement Investigative Report (EIR) in enforcementproceedings. Thatrule provides that respondent may moveto dismiss the complaint and for otherreliefin that the lawjudge may dismiss the FAA's
case as a sanction for failure to provide a full copy ofthe releasable portions ofthe ElR. TheInitial Decision ofJudge William R. Mullins in the case of Administratorv. Michael, 2013 WL 6221805 (NTSB)(See Exhibit C), provides a similarfactual situation, although not as grievous, that this court should use as persuasive authority to support sanctions inthis case. In Michaels, an Order ofSuspension with waiver ofpenalty was issued to an airman alleging failure to establish two-way radio communication as requiredwiththe ATC facility providing air traffic service to that airman. 2013 WL 6221805 atp. 2. Followingthe alleged event, a letter ofinvestigation was sentto the

### airman withthe warnings required by the Pilot's Bill ofRights. Id. In

### the present case, Pilot's Bill ofRights warnings were providedto the owners and agents ofthe Respondent involved inthis case. Like this case, the airman in Michael requested a copy ofthe releasable portions oftheElR. Id. The case was setfor August 15, 2013. Id. On August 6, 2013, the FAA fmally providedtothe airman the air traffic datahehad requested approximately eight months earlier. The airman moved to dismiss the proceedingsbased
onthe FAA's failure to timelyprovidethis data. The airman argued thatthe failure ofthe FAAtoprovidethe releasable portions ofthe ElRwas ajurisdictional requirementthat the FAA failed to satisfy. Id. Judge Mullins agreed and held: And since this public law and itwas passed August 3, 2012, 1thinkthatthatrequirement isjurisdictional in nature, and that the Administrator could notproceed until a period oftime ofthirty days afterthismaterial and datahas been provided tothe respondent afterthat request. And I think the failure to providethatmaterial has provided a jurisdictional defect for the Safety Boardtoproceed in this case, and, therefore, I'm going to fmd for the respondent in this case because ofthisjurisdictional defect and the failure ofthe Administratortoprovidethis data until some eight months after the request was made, December 10 of2012 to August 6 of2013. And during thatperiod oftime, the Administrator did proceed contrarytotheBill ofRights. So the order will be for the respondent. This and the otherpersuasive authority demonstrates howthe NTSB takes seriously the compilation and dissemination ofa complete EIRis case similartothe present one. TheDepartment ofTransportation and this Court should adopt this authority to address this matter and preserves the integrity ofF AAproceedings in this and future
cases.

### WHEREFORE, for the foregoing reasons, the Respondentrespectfully requests that this Court enter an Order ofsanction against the FAA thatin itsjudgment isjust underthe circumstances and for such other reliefas the Court deems appropriate. Respectfully submitted, BARNETT & 

### BORTH, LLC

Paul R. 

### Borth Counsel for Respondent, BirminghamFlight Center, Inc. Barnett & 

### Borth, LLC 800WaukeganRoad Suite 200 Glenview, IL 60025 Tel. (847) 724-5520 Fax (815) 356-7042 prb@barnettlegal.com

### CERTIFICATE OF SERVICE 

### I hereby certifythat I have sent viaFederal Express the foregoing RESPONDENT'S REPLY TO TilE

### FAA'S RESPONSE TN OPPOSITION OF RESPONDENT'S MOTIONFORSANCTIONS addressed to: Original and One copyto: Federal Aviation Administration 600 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket, AGC-430 Wilbur Wright Building- Suite 2WI000 One Copy to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Ave. SE (Ell-310) Washington D.C. 20590 Christopher Stevenson Complainant's Counsel Federal Aviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue College Park, GA 30337 Dated: January 6, 2016

Paul R. Borth Counsel for Respondent Barnett & 

### Borth, LLC 800Waukegan Road Suite 200 Glenview, lL 60025 Tel. (847) 724-5520 Fax (815) 356-7042 prb@barnettlegal.com

### Summary: 

### SECTION B Summary OfFacts
Mr. Steven Michael Pickett, co-owner of the Birmingham Flight Center, Inc. provided air transportation services to Dr. Alan Long on September 18, 2012. Mr. Steven Michael Pickett provided the aircraft, the crews, and maintained control over all operational functions, thus serving as a direct air carrier per 14 CFR Part 110.2. Attempts were made by Mr. Steven Michael Pickett to frame the flight as a demonstration flight but the passenger, Dr. Alan Long, denies by statement that he had any intention of purchasing the plane and he considered the flight a charter.
Referenced Individuals: 1. Mr. Steven Michael Pickett
- Chief Executive Officer, Birmingham Flight Center 2_ Mr. Shawn Stacy Flowers
- PIC, Birmingham Flight Center 3. Mr. Justin Matthew Lollar
- Copilot/instructor, Birmingham Flight Center 4. Mr. Bob Kent
- Director ofOperations, Aviation Services Group 5. Dr. Alan Long
- Passenger, BE-58 owner 6. Mr. Steve Allen
- Premier Group, Aircraft Broker 7. Mrs. Sandi Pickett
- Owner, Birmingham Flight Center 

### Timeline: September 17,2012 September 18, 2012 September20, 2012
September21, 2012 Dr. Alan Long requests charter quote from Aviation Services Group for flight to Destin, Florida. Dr. Alan Long cancels request later that day citing another aircraft found that was more economicaL Dr_ Alan Long is flown to Destin, Florida in Cessna Citation Jet, N525LP, bythe Birmingham Flight Center. Inspector Yancey Rushton meets with Mr. Justin Matthew Lollar, copilot, and discovers flight in CE-525 was logged in his personal flight log as a Might in BE-58, N99BM. My initial assumption was that this was done to conceal the chartered flight in Citation Jet, N525LP. Inspector Yancey Rushton meets with Dr. Alan Long to discuss flight on September 18, 2012. Flight is described By Dr. Alan Long as a business/charter flight and not a demonstration flight Dr. Alan Long explains that all arrangements for flight handled by the Birmingham Flight Center, Inc_ specifically Mr. Steven Michael Pickett.



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## ----·--- --- ---·--·--···--- ---September 24, 2012 Mr. Steven Michael Picket, Mr. Shawn Stacy Flowers, and Mr. Steve Allen come to FSDO to discuss flight. All describe flight as a demonstration flight. All three indicate that flight was arranged by Mr. Justin Matthew Lollar, who was Dr. Alan Long's instructor/pilot October 2, 2012 Mr. Justin Matthew Lollar comes to FSDO to further explain his logbook. Cites pressure from Mr. Steven Michael Pickett to "have the hours required" to fly the BE-58, owned by Dr. Alan Long and managed by the Birmingham Flight Center, Inc. He also admits that the word demonstration was never used by Dr. Alan Long until post-flight discussions ensued. Inspector Yancey Rushton contacts Dr. Alan Long and explains that his pilot, Mr. Justin Matthew Lollar, had just admitted that he did not meet the insurance requirements and had falsified entries in his personal logbookto satisfy Mr. Steven Michael Pickett. October 3, 2012 Dr. Alan Long comes to FSDO, mad and upset that he had been lied to by Mr. Steven Michael Pickett, and offers his full cooperation. He explains that Mr. Steven Michael Pickett told him the day following the flight that he would submit a false offer for 1 million dollars, which would be rejected, and they would show that to FAA as a demonstration. Dr. Alan Long again states that billing for flight was originally to be done through the Birmingham Flight Center, Inc. The billing procedure changed only after Mr. Steven Michael Pickett discovered that he could possibly have an issue. October4, 2012 Mr. Justin Matthew Lollar comes to FSDO a third time to explain his logbook discrepancies and tells Inspector Yancey Rushton and Operations Supervisor Pat Bruce that Dr. Alan Long's BE-58 had been used on several occasions to fly passengers. Specifically he describes a flight for the Atlantic FBO Executives from Birmingham to New Orleans, LA He explains that the flight was arranged by Mr. Steven Matthew Pickett. Dr. Alan Long was never compensated for the use of his aircraft. October 5, 2012 Dr. Alan Long meets with Mr. Bob Kent of Aviation Services Group, Inc. to seek his advice and apologizeforwhat has occurred surrounding the charter flight on September 18, 2012. Dr. Alan long moves his aircraft out of !he custody of the Birmingham Flight Center, Inc. and asks Mr. Bob Kent to assist with the management and sale of his aircraft October 10, 2012 Letters of Investigation are sent from FSDO to Mr. Steven Pickett, Mrs. Sandi

**Picket~** Mr. Shawn Flowers, and Mr. Justin Lollar. October 23, 2012 Mr. Steven Pickell, Mrs. Sandi Pickett and Mr. Shawn Flowers come to the FSDO to explain and answer to the Letter of Investigation. Mr. Pickett promises to submit statement holding himself accountable within 48 hours.
Mr. Steven MichaelPickett 201280090055 

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**~~~·~---·· .~--~**  **·-~-··--·--~--- ··--·---·-~-~---** October 24, 2012

Details: Mr. Shawn Flowers comes to FSDO with his statement. He also hand delivers the statement signed by Mr. Steven Pickett and Mrs. Sandi Pickett. Mr. Steven Pickett accepts responsibility for the chartered flight in his statement

ML Steven Michael Pickett is the holder ofAirline Transport Pilot certificate #2744958 (lOP #1). Mr. Steven Michael Pickett is listed as a member for the Birmingham Flight Center, LLC according to the Alabama Secretary of State, Business Entity Details (lOP #2). Mr. Steven Pickett is also listed as the Chief Executive Officer and Chief Pilot for the Birmingham Flight Center on their internet website (lOP #3) Mr. Shawn Stacy Flowers is the holder ofAirline Transport Pilot certificate #2719953 (IOP#4). Mr. Shawn Stacy Flowers is listed as the Director of Jet Training for the Birmingham Flight Center on their internetwebsite {lOP #3). Mr Justin Matthew Lollar is the holder or Commercial Pilot certificate #2814279 (lOP #5). Mr. Justin Matthew Lollar is listed as a flight instructor for the Birmingham Flight Center on their internet website (lOP #3). N525LP, a Cessna Citation Jet, serial #525-0196, is owned by Tearn Financial, Inc (lOP #6). 

### September 17,2012: Dr. Alan Long contacted Aviation Services Group, a 14 CFR Part 135 air carrier, to request a quote on a charter flight from Birmingham, Alabama to Destin, Florida. He spoke with their scheduler/dispatcher Ms. Rhonda Masters. Ms. Rhonda Masters provided Dr. Alan Long, per his request, with a charter quote (Quote #9544). Emails were exchanged between Dr. Alan Long and Ms. Rhonda Masters throughout the day. Eventually, Dr. Alan Long advised Ms. Rhonda Masters that he had found another aircraft for less and canceled his request with Aviation Services Group, Inc. (lOP #7}. 

### September 18, 2012: Mr. Steven Michael Pickett, co-owner ofthe Birmingham Flight Center, LLC provides round trip transportation to Dr. Alan Long and passengers in Cessna Citation Jet, N525LP. The flight departs Birmingham, Alabama (KBHM) on September 18, 2012 and returns from Destin, Florida (KDTS) on the same day (lOP #8). On the afternoon of September 18, 2012, Dr. Alan Long received an email from Mr. Bob Kent. Director of Operations for Aviation Services Group, explaining the difference between a certificated operator and a non-certificated operator (lOP #9).

Mr. StevenMichael Pickett 201280090055 

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-------· -·-··-··-·Confused and now concerned, Dr. Alan Long contacts Mr. Steven Michael Pickett to ask questions about the flight they hadjust taken to Destin, Florida. Mr. Steven Michael Pickett tells Dr. Alan Long "not to worry because he would calf Steven Allen andhave it taken care of He said they would make 

### it

### a demonstration flight since he hadpreviously shown interest in the CJ class ofplanes" (lOP# 10). 

### September 19, 2012: Mr. Steven Michael Pickett calls Dr. Alan Long and informs him that they would create and submit a false offer on the Citation Jet and give to Mr. Steve Allen, broker for the Premier Group, for 

### $1 million dollars. The offerwould then be rejected, as the aircraft is listing for closer to $2 million dollars and they would then be able to claim the flight was a demonstration if questioned by the FAA or Mr. Bob Kent (lOP #10 (lOP #11). 

### September 20, 2012: The initial meeting between Inspector Yancey Rushton and Mr. Bob Kent, Director of Operations for Aviation Services Group, takes place. Mr. Bob Kent explains that he observed the plane and passengers depart and arrive back in Birmingham and he knew the pilot in command was Mr. SMwn Stacy Flowers and the copilot was a Binningham Flight Center instructor (lOP

### #12). ASI Rushton reviewed the Birmingham Flight Center, Inc. instructor scheduling website and saw that ML Justin Matthew Lollar was scheduled on September 18, 2012 to 

### fly to Destin, Florida with Or. Alan Long. September21, 

### 2012: ASI Rushton met with Mr. Justin Matthew Lollar_ He confirms that he served as a copilot on the flight to Destin, Florida with Dr. Alan Long, and indicates that the pilot in command was Mr. Shawn Stacy Flowers. He initially claims that the flight was a demonstration flight for Dr. Alan Long, who had contacted him about getting to Destin, Florida. He describes the process and claims that he arranged the transportation in thejet (lOP #13). As he describes the process it becomes clear that his initial call was to Mr. Steven Michael Pickett and Mr. Steven Michael PiGkett arranged the crew, the plane and the billing. Mr. Justin Matthew Lollar tells Dr. Alan Long the cost, as related by Mr. Steven Michael Pickett, and informs him ofthe crew, the times l'or departure, and the aircraft (lOP #14). ASI Rushton reviews Mr Justin Matthew Lollar's logbook and sees that he had recorded the flight on 9/18/12 in a BE-58 Baron and not in the CE-525 Citation Jet. When asked about the discrepancy, Mr. Justin Matthew Lollar became visibly shaken and tearful and explains that he had done this to build his BE-58 fliljhttime and he knew it was wrong. This was an intentionally false entry in his logbook designed to mask the true nature ofthe flight (lOP #15). After meeting with Mr. Justin Matthew Lollar, ASI Rushton proceeds to Dr. Alan Long's office to meet with him. Initially meeting was very tense but softens quickly and Dr. Long explains that the purpose ofthe flight was to attend a business meeting, not to demonstrate an aircraft. As a matter of fact, he explains, he never heard the word demonstrate until after their return from Destin that afternoon. Further, 11e recounts that he didn't call anyone and all of the Mr. StevenMichaelPickett 2012S00911055 

### FOR OFFICIAL USE ONLY

**~----** ----arrangements for the flight were made 

### by the Birmingham Flight Center, Inc. He never called the pilot or owner ofthe aircraft and honestly didnteven know the plane was for sale. He never thought that the flight was a demonstration flight. The flight only became a demonstration flight after his return from Destin, Florida and Mr. Steven Michael Pickett began to realize an issue was building. (lOP #16)(10P #10). September 24, 2012: Mr. Steven Michael Pickett, Birmingham Flight Center, Mr. Shawn Stacy Flowers, Birmingham Flight Center, and Mr. Steve Allen, the Premier Group (aircraft brokers) all come to the Alabama & Northwest Florida Flight Standards District Office, as requested, for an informal meeting to discuss the flight to Destin, Florida. They all claim that itwas a demonstration flight for Dr. Alan Long. When asked about the regulations that cover the demonstration of an aircraft (14 CFR 91.501), none ofthe three men were familiar nor did they understand what can and what cannot be charged per the regulation. Additionally, when asked, they confirmed that there were no discussions on the aircraft about its performance, costs, etc. and Mr. Steve Allen, aircraft salesman, was not present to field any questions (lOP #17). Dr. Alan Long, in his statement dated October 12, 2012, placed emphasis on the fact that he never had any intention on placing an offer and didn't even know that the plane was for sale (lOP #10). October 2, 2012: Mr. Justin Matthew Lollar returns to the FSDO to discuss his logbook discrepancies and the charter trip to Destin, Florida on September 18, 2012. Inspector Clay Perkins was present during the interview. Mr. Justin Matthew Lollar states that the logbook discrepancies were made to meet insurance requirements in the BE-58 Baron, managed by the Birmingham Flight Center, Inc. When asked 

### if he was pressured to alter his logbook, he balks and states that he was just "being a team player." He further describes the process on the flight that occurred on September 18, 2012 and tells us that Mr. Steven Pickett made all of the arrangements and provided him with the price per hourto tell to Dr. Alan Long (lOP #18)(10P #19). October 3, 2012: Dr. Alan Long visits the Alabama & Northwest Florida Flight Standards District Office to write a statement on the September 18, 2012 trip to Destin, Florida. Dr. A!an Long states that the Birmingham Flight Center made all arrangements and he assumed it would be invoiced through his Birmingham Flight Center account. Dr. Alan Long further stales that he never contacted Mr. Shawn Flowers, the pilot in command, or Mr. Steve Allen, the aircraft sales broker, and he never thought or assumed the flight was a demonstration {lOP #10)(10P #11) Dr. Alan Long said he had recently learned that Mr, Steven Pickett had been providing him with a piloi, Mr. Justin Matthew Lollar. This pilot had little to no experience in the aircraft and was not covered under his insurance policy. Dr. Alan Long was very upset because he remembers specifically asking Mr. Steven Pickett if his pilot was experienced and insured. According to Dr. Mr- Steven Mki>ael Pickett 201280090055 

### FOR OFFICIAL USE ONLY

---- ----- ---·-- ---Long, "the gloves are off now that he has been flying my family and misrepresenting my pilots credentials" (lOP #11 )(lOP #20). Dr. Alan Long also explains that he originally received 

### a bill for pilot services from 

### Mr. Shawn Flowers, $450, and Mr. Justin Lollar, $400. Both invoices referred to the flight as a demonstration (lOP #21)(lOP #22). October 

### 10, 2012: Letter of Investigation sent out to Mr. Steven Michael Pickett (lOP #23). Letter of Investigation sent outto Mrs. Sandi Picket! (lOP #24). Letter of Investigation sent out to Mr. Shawn Stacy Flowers (lOP #25). Letter of Investigation sent out to Mr. Justin Matthew Lollar (lOP #26 ). October 12,2012: Dr. Alan Long writes one final statement at ASI Rushton's request to tie all of the pieces together and submits via email (lOP #10). October 

### 15, 2012 Statement received from the pilot in command, Mr. Shawn Flowers, requesting additional time to craft his statement due to the fact that he is out oftown until October 

### 22, 2012 (lOP 

### #27). October 23, 2012 Mr. Steven Pickett comes to the FSDO and admits he served as a direct air carrier, although he states thatthis was not his intention, and agrees to submit statement within 

### 48 hours accepting responsibility for the flight Mrs. Sandi Pickett is present as well and begins to cry because she is worried about bankruptcy. Inspector David Hargett present for this meeting (lOP #28). October 

### 24, 2012 Mr. Shawn Stacy Flowers visits the FSDO and delivers his statement as well as Mr. Steven Pickett's statement (lOP #29)(10P #30). ***** Pilot Bill of Rights statements were collected for the three individuals associated with this case who possess an airman certificate. This includes: Mr. Steven Michael Pickett, Mr. Shawn Stacy Flowers, and Mr. Justin Matthew Lollar (lOP #31)(10P 

### # 32)(10P #33),

Mr. StevenMichael Pickett 

### 201280090055
FOR OFFICIAL USE ONLYlOP# 1 IOP#2 IOP#3 IOP#4 IOP#5 IOP#6 OP#7 IOP#8 IOP#9 IOP#10 lOP #11 IOP#12 IOP#13 lOP #14 !OP#15 IOP#16 IOP#17 lOP #18 IOP#19 IOP#20 IOP#21 JOP#22 

### Items OfProof Copy ofAirman Information for Mr. Steven Michael Pickett. Copy ofAlabama Secretary of State, Business Entities Detail Copy of Birmingham Flight Centerwebsite information Copy ofAirman Information for Mr. Shawn Stacy Flowers Copy ofAirman Information for Mr. Justin Matthew Lollar SPAS registration information for N525LP Email correspondence between Aviation Services Group and Or. Alan Long Flightaware snapshot for 9/18/2012 Email from Mr. Bob Kent on 9118/2012 Dr. Alan Long Statement- 10/12/2012 Dr. Alan Long Statement
- 10/3/2012 Record of Conversation- Mr. Bob Kent Mr. Justin Lollar Statement- 9121/2012 Record of Conversation- Mr. Justin Lollar (9/21112) Mr. Justin Lollar copy of logbook Record of Conversation
- Dr. Alan Long (9/21112) Record of Conversation
- Group Record of Conversation- Mr.Justin Lollar (1012112) Mr. Justin Lollar Statement- 10!2/2012 Insurance Paperwork, BE-58, N99BM. Pilot Services Invoice- Mr .Justin Lollar Pilot services 

### J nvoice
- Mr. Shawn Flowers Mr. StevenMichaelPickett 201280090055 

### FOR OFF'ICIAL USE ONLY



# -----------------------------IOP#23 IOP#24 IOP#25 IOP#26 IOP#27 IOP#28 IOP#29 IOP#3D IOP#31 IOP#32 IOP#33 letter of Investigation (10/10/12)- Mr. Steven Michael Pickett Letter ofInvestigation (1011 0/12)- Mrs. Sandi Pickett Letter of Investigation (10!10112)- Mr. Shawn Stacy Flowers Letter of Investigation (10/10/12)- Mr. Justin Matthew Lollar Letter of Investigation Response- Mr. Shawn Stacy Flowers (10/15/12) Record of Conversation -Inspector David Hargett {10/23/12) Mr. Shawn Stacy Flowers response- 10/24/12 Mr. Steven Michael Pickett & Mrs. Sandi Pickett response- 10/24/12 Pilot Bill of Rights signature- Mr. Steven Michael Pickett Pilot Bill ofRights signature- Mr. Shawn Stacy Flowers Pilot Bill of Rights signature- Mr. Justin Matthew Lollar

Mr. Steven Michael Pickett 20!280090055 

### FOR OFFICfAL USE ONLY

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS, WASHINGTON, DC MICHAEL P. HUERTA, Administrator Federal Aviation Administration Complainant 

### v. ) ) ) ) ) ) 

### BIRMINGHAMFLIGHT CENTER, INC. ) Respondent. ) ) 

### DocketNo. FAA-201 4-0867 Judge 

### J.E. Sullivan FAA CaseNo, 2012S0090053

RESPONDENT'S REQUESTS FORPRODUCTION OF DOCUMENTS Respondent, BIRMINGHAMFLIGHT CENTER, byits attorneys, Barnett & 

### Borth, LLC., hereby requests that the Administratorprovide the responses to the following requests for production within (30) days, in accordance with Section 821.19 of the Rules ofPractice in Air Safety Proceedings and Rule 34 oftheFederal Rules ofCivil Procedure: PLEASENOTE THE FOLLOWING SPECIAL INSTRUCTIONS AND DEFINITIONS: A. The term "document" as used in these Requests means any book, pamphlet, periodical, letter, report, memorandum, e-mail transmission, notation, message, record, study, workingpaper, chart, graph, index, tape, minutes, contract, lease, invoice, record ofpurchase or sale, correspondence, telegram, cable, electronic or othertranscription or taping oftelephone orpersonal conversations or conferences, and any and all other written, printed, typed, punched, taped, fihned or graphic matter, however produced or reproduced. B. 

### The term "subject flight" as used inthese Requests means the September 18, 2012, flight ofN525LP, a Cessna Citation Jet from Birmingham, Alabama to Destin, Florida. Request for Production ofDocuments: l. All documents other than the previously disclosed EIRthat you intend to use at the hearing ofthis matter. 2. Complete copies ofall statements (oral, written, ortranscribed, signed or unsigned) byparties or witnesses to this matter, including butnot limitedto individuals who: has or claims to have knowledge ofany ofthe facts specified in the FinalNotice of Proposed Civil Penalty EXHIBIT 

### llf'age B

### 3. Complete copies ofall documents thatwere used to support the allegations set forth in the Complaint. 4. All rules, regulations, bylaws, guidelines ofanypublic authority, inspecting or reviewing authority or other private body, which you intend to use during the hearing of this matter. 5. A complete resume or Curriculum Vitae ofall experts and FAA witnesses that that you intend to call upon to give testimony orpresent evidence atthe hearing ofthis matter. 6. Copies ofall articles, papers treatises, textbooks,journals, or other literature considered and/orreviewed by your experts and witnesses. 7. All written documents, materials, exhibits, diagrams, plats, photographs, records, fihns, and the like to be used by your experts and witnesses to prepare for testimony or create reports relatedto this matter. 8. All written material, exhibits, diagrams, photographs and the like to be used by your attorney's in questioning or impeaching the Respondent and/or Respondent's witnesses atthe hearing ofthis matter. 9. All office or review notes, memos and all other documents generated by oron behalfofyour experts in conjunction with their involvement inthis case. 10. Copies ofall documents thatwere provided to your experts inthis case. 11. Copies ofall correspondence by and between you andyour experts in this case. 12. Copies ofall reports prepared by your expert witnesses. 13. All documents ofofficial or unofficial characterfor which you will seek the Court to takejudicial notice ofat the time oftrial. 14. All demonstrative and evidentiary exhibits you intendto use atthe hearing ofthis matter. 15. Each and every document, record, report, writing memorandum, physical object and the like revealed or referenced in Complainant's Answers to Interrogatories. 16. Complete copies ofall the validly adopted interpretations oflaws, and regulations that the Administrator carries out that the Complainant intends to use at the hearing of this matter. 17. All documents that reference or relate to Bob Kent ofPremier Group concerning the subject aircraft, N525LP.

### 18. All correspondence and e-mails sentto or sent from Dr. Alan Long related to the subject flight. 19. All correspondence and/or e-mails to-from Aviation Services Group concerning Dr. Alan Long and/or the subject flight. 20. All documents that demonstrate the storage or maintenance ofDr. Alan Long's airplane. 21. All documents thatrefer to or relate to any existingbetween Dr. AlanLong and Aviation Services Group. 22. All bills related to the subject flight. 23. All written agreements between Dr. Alan Long andthe Respondent and its agents. 24. Complete and un-redacted reports ofall individuals who performed investigation inthis matter. 25. All documents generated by YanceyRushton, PatBruce, Clay Perkins, and David Hargett related to this case. 26. Copies ofall documents received through any subpoenas issued in this matter. 27. All proofofpayment for payments made by Dr. AlanLong to the Respondent for the subject flight. Demandto Supplement: Pursuant to Federal Rules, the partyresponding to these Requests to Produce is hereby requested to seasonably supplement or amend any prior response and disclosure whenever new or additional information subsequently becomes known to that party orthe party's attorneys or agents. Respectfully submitted, BARNETT & 

### BORTH, LLC Dated: April20, 2015



## ---~-



# (~~:::2~:!::::;:F/ Paul R. Borth Counsel for Respondent Barnett & 

### Borth, LLC 800WaukeganRoad, Suite 200 Glenview, IL 60025 Tel. (847) 724-5520 Fax (815) 356-7042prb@barnettlegal.com

### CERTIFICATE OF SERVICE I hereby certify that I have this date faxed and emailed the foregoing RESPONDENT'S REQUESTS FORPRODUCTION OF DOCUMENTS addressed to: Judge J.E. Sullivan U.S. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJerseyAvenue, S.E. (Ell-310) Washington, DC 20590 VIA FAX: 202-366-7536 DeitrickH. Johnson Complainant's Counsel FederalAviation Administration Office ofthe Regional Counsel, AS0-7 Southern Region 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223 Service via: deltrick.h.johnson@faa.gov Dated: April 20, 2015

Paul R. Borth Counsel for Respondent Barnett & 

### Borth, LLC 800WaukeganRoad Suite 200 Glenview, lL 60025 Tel. (847) 724-5520 Fax (815) 356-7042 prb@barnettlegal.com



## 41 D"'C•P ! q 6 '-·IN THE MATTER OF: MICHAEL P, HUERTA,,,, 2013 WL 6221805,,

2013 WL 6221805 (N,T,S,B,) INTHEMATTEROF: MICHAEL P, HUERTA,ADMINISTRATOR, FEDERALAVIATIONADMINISTRATION, COMPLAINANT

*1 APPEARANCES: On behalfofthe Administrator: DAVID KESSLER, ESQ, Federal Aviation Administration Central Region 901 Locust, Room 506 Kansas City, Missouri 61046 Tel: 816-329-3763 Fax: 816-329-3771 david,kessler@faa,gov On behalfoftheRespondent: GEORGE T, BABCOCK, ESQ, 16264 Rolling Ridge Road Omaha, Nebraska 68135 402-533-2256 gtbabcock@gmail,com V, STEPHEN B, MICHAEL, RESPONDENT DocketNo,: SE-19457 September 17, 2013

ADMINISTRATIVE LAW JUDGE DECISION

ORAL INITIALDECISION AND ORDER ADMlNISTRATIVE LAW JUDGE MULLINS: This has been aproceeding before the National Transportation Safety Board held under the provision ofSection 44709 ofthe Federal Aviation Act of 1958, as amended, on the appeal of Stephen R Michael, who I'll refer to as the Respondent, from an Order of Suspension that seeks to suspend his airman certificate, although the Order ofSuspension, as issued, had a waiver ofpenalty. The Order ofSuspension, which serves as the complaint in our proceeding, was filed on behalfofthe Administrator, Federal Aviation Administration, through regional counsel ofthe Central Region. The matter has been heard before William R Mullins, I'm the administrative lawjudge, aud as is provided by the Board's Rules, I'm issuing a bench decision at this time. The matter came on for hearing pursuant to notice that was given to the parties, and I'll share the dates. It was originally set for trial onthe 20th ofAugust ofthis year, and then by agreement ofcounsel and to help in my scheduling, it was moved up to the 15th ofAugust And then there were some motions filed fairly late and on request ofthe Administrator, then the trial was continuedto today, the 17th ofSeptember, here in Omaha, The Administrator was present throughout these proceedings and was represented by counsel, Mr. David Kessler, Esquire, of the Central Region, Kansas City, Mr, Kessler entered an appearauce about 30 days, and all times up to that date the Administrator was represented by Mr. Camacho, who is also with the Central Region. The Respondent was present throughout these proceedings and represented by his counsel, Mr. George T. Babcock, Esquire, ofhere in Omaha. The parties were afforded a full opportunity to offer evidence, call, examine, and cross-examine witnesses. ln addition, the parties were afforded an opportunity to make argument in support oftheir respective

**positions.,--------~** 

### EXHIBIT E 8



## ___ c ____ ,IN THE MATTER OF: MICHAEL P. HUERTA,
..., 2013 WL 6221805
...

DlSCUSSfON This is a very simple case that's complicated only by the recent passage ofthe Pilot's Bill ofRights. It's a case of first impression for me, the issue that's come up under the Pilot's Bill ofRights. It's certainly a first impression for counsel. And I have consulted a little bit with my brotherjudges, and I think it's the first time this issue has come up before the Board, so maybe the Board will have an opportunity to reviewthis and issue some final guidance on the Pilot's Bill ofRights. *2 But in any event, the Order ofSuspension with waiver ofpenalty was issued back on March 11 ofthis year, and basically everything was stipulated to. The Respondent did not admit to anything, but he stipulated that ifthe Administrator put on witnesses that they would testifY that the airline transport pilot certificate alleged in paragraph 1 would be established. The facts ofthe case are, or the issue involved in the case, the regulatory violation involved in the case is that on or about July 10 of2012 the Respondent acted as pilot-in-command ofCivil Aircraft November-2897-Alpha, a Piper Model PA28, property ofanother, onvisual flight rules passenger-carrying flight departing from the Millard Airport, Omaha, Nebraska. In paragraph 3, incident to the above operation you entered Class C airspace. Paragraph 4, incident to entering Class C, you failed to establish two-way radio communication as required with the ATC facility providing air traffic service for the Omaha Class C airspace; and (b)

-- that was (a)

-- and then (b) is that the aircraft November-2897-Alpha was caused to travel within Class C airspace without establishing two-way radio communication with air traffic control. And paragraph 5, your failure to establish two-way radio communication with air traffic control prior to entering the subject Class C airspace, and while operating in a Class C airspace, constituted a series ofcareless acts on your part. Your failure endangered the life ofyour passenger as well as the lives and property ofothers operating within the subject Class C airspace. Now, all ofthis was stipulated to, that ifthe Administrator's witnesses were called to testifY, they would establish those violations. And then paragraph 6 is the regulatory violations of 91.130(c)(1), entering Class C airspace without two-way radio communication; andFAR 91.13(a)(1), which is the careless and reckless operation. Now, the parties stipulated that ifthe Administrator called the witnesses thatthey would all testify consistent with those facts alleged. And then the exhibits admitted were Exhibit A-2 for the Administrator. Exhibit A-2, which was stipulated to, is the August 28, 2012, notice ofinvestigation underthe Pilot's Bill ofRights, a letterthatwas sentto Mr. Michael. The second exhibit stipulated to was Exhibit A-3, which is Respondent's e-mail ofOctober 2 in which he basically admits that he traveled briefly into Class C airspace on that date in question. Exhibit A-4 is the notice ofproposed certificate action which was issued on November 15, 2012. Then there was Exhibit A-5, which is the Respondent's letter to the Administrator on December 10, 2012, asking for any informationthat was required to be provided under the Pilot's Bill ofRights. The Respondent had three exhibits. One was the August 12 of20 13 receipt ofthe radar data that was requested under the December 10 letter. Respondent's Exhibit 2 was the letter. There were three exhibits: R-5, R-2, and R-3, which was data received 6/23 of'13, which was also consistent with the Pilot's Bill ofRights. *3 Those were the stipulations and the exhibits that were admitted, and then the matter was presented to me for consideration and specifically consideration on the Respondent's motion for summaryjudgment.IN THE MATTER OF: MICHAEL P. HUERTA,
..., 2013 WL 6221805
... And, again, the dates here are important. The issue in the motion for summary judgment is that the Pilot's Bill ofRights states under paragraph 5

-- and this is paragraph 5 concerning the information required

-- no, this is accessed information. Paragraph 5, under accessed information, under timing, it says, "Except when the Administrator determines that an emergency exists under section 44709(c)(2) or 46105(c), the Administrator may not proceed against an individual that is the subject ofau investigation described in paragraph (I) during the 30-day period beginning onthe date in which the air traffic datarequired under paragraph (4) is made available to the individuaL" Now, the issue here, the Administrator argues that their letter ofinvestigation says -- that that was the letter telling them it was available, that that constituted the satisfaction ofthe request. The Respondent takes the position that the request was made in December, that the Administratorproceeded in March

-- and I'll talk aboutthose dates with the Order ofSuspension

-- and that there was never any compliance with this. The Respondent has taken the position that this is ajurisdictional issue. And obviously under the law ifthat isjurisdictional, then the order must be in favor ofthe Respondent because there's nojurisdictionfor the Safety Board to enter an order. The dates are important in this matter inthat July 10 oflast year, 2012, was the date ofthe incident. August 28 of2012, the letter of investigation was sent out. September 4 was a phone call from the Respondent to the FAA inspector basically admitting on that phone call. October 2 was the written statement. It's captioned narrative, where Respondent also admitted that. November 15 was the notice ofproposed certificate action. December 10 was the request for the Pilot's Bill ofRights data. March 11, the Order of Suspension was issued. April 8, an answer was filed denying all allegations, except the possession

-- orthe certificate thatwas identified as belonging to the Respondent. And then, ofcourse, as I said at the outset, the matter was set for hearing on August20, andthen moved up to August 15, but this data was-- andthat notice ofhearing was sent out on the 5th ofJune. And then August 6the data was provided. August 6 of2013 the data was provided, a weekbeforetrial or 9 days before trial, andthe-- well, let me back up. The Administrator's argument is that the letter ofinvestigation advises the client, the respondents in these cases, that this is available and that that satisfies the timing requirement under the Pilot's Bill ofRights. But the letter ofinvestigation was August 28, butthe notice ofproposed certificate action was not issued until November 15. *4 In another part ofthis case, Respondent has argued for a motion and moved for an in-camera hearing to determine the process that the Administrator used in determining whether this should have been an Order of Suspension or some other remedial training orperhaps a warning letter. And 1think 1recall that there was some data in that motion that there was over 70 percent ofthe Administrator's cases go offon other means, remedial training and/or warning letters. And in denying that motion I did state, and I believe that, and the Board precedent is that the decision to proceed with au Order ofSuspension or revocation versus remedialtraining ora warning letter is a process that's entirely up to Administrator under the doctrine ofprosecutorial discretion. However, there's no knowledge that's ever imparted to a Respondentthat they have decided in favor ofone or the other until the notice ofproposed certificate action is served, and that notice ofproposed certificate action was issued onNovember 15. And on December 10, the Respondent asked for this data, within 30 days of the notice ofproposed certificate action. And, again, the Pilot's Bill ofRights says that the Administrator may not proceed until there's a 30-day period that this data required under paragraph (4) is made available to the individual. And I think under the circumstances ofthis case that it's reasonable to believe that that 30 days would start from the time that that material is not only requested but provided to the Respondent And in this case, the Order ofSuspension was issued in March ofthis year-- March 11, the Order ofSuspension, but the data requested under the Pilot's Bill ofRights was not provided until August 6 ofthis year, 2013. And, therefore, the timing requirement has not been satisfied under the Pilot'sBil1 ofRights. And since this is public law and it was passed on August 3 of2012, I think that that requirement is jurisdictional in nature, and that the Administrator could not proceed until a period oftime 30 days after this material and data have been provided to the Respondent after thatrequest.IN THE MATTER OF: MICHAEL P. HUERTA,
..., 2013 WL 6221805
...

And I think the failure to provide that material has provided ajurisdictional defect for the Safety Board to proceed in this case, and, therefore, I'm going to find for the Respondent in this case because ofthisjurisdictional defect and the failure of the Administrator to provide this data until some 8 months after the request was made, December 10 of2012 to August 6 of 2013. And duringthat period oftime, the Administrator did proceed contrary to the Bill ofRights. So the order will be for the Respondent. ORDER IT IS THEREFORE ORDERED that safety in air commerce and safety in air transportation does not require an affirmation ofthe Administrator's Order ofSuspension as issued. And specifically I find that because the Pilot's Bill ofRights, as to the issuance ofthe air traffic data requested has not been provided, thatthey are underthat provision, paragraph (5) in the Pilot's Bill ofRights, there is notjurisdiction for the Safety Board to proceed and, therefore, the order will be in favor ofthe Respondent. *5 EDITED ONOCTOBER 23, 2013
WILLIAM R. MULLINS Administrative LawJudge National Transportation SafetyBoard (N.T.S.B.)

___2013WL 6221805 (N.T.S.B.) ((: 20l6 ·J-homson Reuters. 1\;o clmlll lo

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