U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS, WASHINGTON, DC : l'' 

In the Matter of: ) Docket No. FAA-2014-0867 

) 

BIRMINGHAM FLIGHT CENTER, INC. ) 

) 

Respondent. ) 

Judge J.E. Sullivan 

FAA Case No, 2012S0090053 

RESPONDENT'S REPLY TO THE FAA'S RESPONSE IN OPPOSITION OF 

RESPONDENT'S MOTION FOR SANCTIONS 

Now Comes the Respondent, Birmingham Flight Center, by its attorneys, Barnett 

& Borth, LLC, and in reply to the FAA's response 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 by Mr. Rushton's Declaration and FAA 

counsel's argument, the FAA was in possession of the subject e-mails and Dr. Long's 

October 1 statement at relevant times during the investigation, the time when the 

Respondent requested the EIR, the time when the letter of investigation was served on the 

respondent and likely when the FAA filed this action. As set forth in Respondent's 

Motion, the FAA's own policies and procedures set forth in Order 2150.3B required the 

FAA to include the subject documents in the EIR prepared by Mr. Rushton and likely 

reviewed by other FAA agents and attorneys prior to bringing this case. 

It is clear from the FAA's response and Mr. Rushton's declaration that the failure 

to include these documents in the EIR and to produce these documents by way of initial 

Rule 26 disclosures and/or response to the respondent's request for production was not 

merely inadvertent. The summary of facts section of the EIR apparently authored by Mr. 
Rushton makes no mention of Dr. Long's initial statement or the e-mail correspondence 

(See Exhibit A). (Tt does state that Dr. Long told Mr. Rushton that: "the gloves are off 

now that he has been flying my family and misrepresenting credentials". (See Exhibit A). 

Mr. Rushton succeeded in polluting this witness and turning an independent witness into 

an adversary of the Respondent. Mr. Rushton's objectivity and ethics, therefore, appear to 

be questionable. 

FAA Order 2150.3 B states that investigative personnel must conduct 

investigations promptly and "they must gather and accurately and completely report all 

facts and conduct their investigation in an unbiased and focused manner. A violation 

report without all the facts only leads to delays that compromise the objectives offair and 

responsive enforcement. An incomplete or inaccurate enforcement investigative report 

can mislead reviewing officials and FAA legal counsel and resulting wrong or 

inappropriate actions being taken." See, Order 2150.3B, Ch. 2 at p. 2-2 ~ 3( e), 

Investigation and Reporting. It can be well argued that the EIR in this case was designed 

to mislead the FAA's reviewing officials and counsel. 

The fairness provision of that FAA Order provides that "To be effective, the 

agency's compliance and enforcement program must be fair and reasonable and should 

be perceived as fair by those subject to regulation ... It does encompass the right of the 

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, as well as to 

apprise the apparent violator of the agency's position in a timely manner. See, Order 

2150.3B, Ch. 2 at p. 2-3 ~ 3(g), Fairness. The Respondent was stripped of the ability to 

21Pagc 
get objective, evenhanded consideration of all circumstances surrounding the allegations 

before final action is taken when the EIR was cherry picked of a potentially exculpatory 

statement. 

According to Chapter 4 of the FAA's Order: "Enforcement Investigative Reports 

(EIR) reconnnending legal enforcement action are reviewed by several FAA management 

levels at the field office and the regional office, and by FAA legal counsel before the 

agency decision is made about whether FAA legal counsel will initiate a legal 

enforcement action and, if initiated, the appropriate violations to allege and the proposed 

sanction." See, Order 2150.3B, Ch. 4 at p. 4-l -,r 2(a)(l), Role of Investigative Personnel 

in Enforcement Investigations. Obviously since Mr. Rushton deliberately left out both the 

subject documents and factual analysis respecting the subject documents from the ElR 

the FAA's reviewing personnel and attorneys were left in the dark and could not consider 

this information before final agency decision to pursue the Respondent was made. 

Mr. Rushton and FAA counsel attempt to give this Court the impression that the 

destruction of evidence 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 of the documents demonstrates otherwise. FAA counsel's 

explanations of his (also previously undisclosed) e-mails to Dr. Long do not pass muster 

nor do his attempts to show "good faith" by not quashing a subpoena requesting pertinent 

and I ikely relevant documents. 

Without any evidence or documentation from an FAA information technology 

professional respecting the so-called "Mail Jail", Mr. Rushton urges this court that 

despite the FAA's Order to the contrary Mr. Rushton could merely "print out anything 

31 P' ,, (} P - '-'' ,";;) " 
that seemed important". The FAA has produced no document destruction policy that 

would explain "Mail Jail" or Mr. Rushton's destruction of these 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 that Mr. Rushton 

swears to in his Declaration. (See Response Exhibit D). 

Mr. Rushton provides this Court with no date or time on which he deleted the 

subject materials, but we do know that is highly likely that these emails were still 

available to the FAA and to Mr. Rushton at the time that he dictated his summary of facts 

for the EIR. Obviously when he sat down to dictate his skewed summary of facts he 

would have had all of these documents at his disposal. He simply chose to delete the ones 

that would show how he attempted to influence Dr. Long, the ones that demonstrate that 

Dr. Long had been seeking the Respondent's advice on potential purchase of a plane of 

the type demonstrated in the subject flight and especially the email that attached the 

October 1 statement of Dr. Long that referenced exculpatory information helpful to the 

Respondent's case. It is hard to fathom how one could prepare such a summary strictly 

from memory. 

Mr. Rushton contradicts himself in his declaration by averring that "my 

recollection was that I printed these emails out and put them in the investigative file at the 

Birmingham FSDO". (See Rushton Declaration at -,r4). His "recollection", if factually true 

would leave him with clean hands and would, at least in respect to the compiling of the 

EIR, be consistent with the dictates of the FAA's Order 2150.38. However, Mr. Rushton 

then swears that "I did not include these emails as items of proof in the EIR because, in 

my judgment, the emails where l 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." 

(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 out the documents knowing that they were pertinent and relevant and later 

destroyed them instead of placing them in his factual summary and in the EIR or he 

destroyed the original e-mails and Dr. Long's statement knowing they were 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 the Respondent's discovery 

requests. 

Mr. Ruston knew upon reading the documents uncovered by Respondent's 

subpoena that the documents were once in his hands and in the FAA's hands. He does not 

refute this fact nor does he clalin that these documents are new to him. Reasonably 

speaking, Mr. Rushton had to know of the existence of these documents when the FAA's 

counsel asked him if he had or knew where to fmd such documents during discovery. 

However, the FAA counsel's discovery responses filed after speaking with Mr. Rushton 

on this subject make no mention of these circumstances (Mr. Rushton printed them out 

and lost them or Mr. Rushton destroyed them) and no mention is made of any attempt to 

recover or replace these destroyed documents from the FAA computers or from Dr. 

Long. 

It was only after the Respondent uncovered this evidence that the FAA provided 

any explanation concerning this evidence. FAA counsel declares that he spoke with Mr. 
Rushton about Respondent's discovery requests and that Mr. Rushton failed to say one 

word about the FAA's destruction of this evidence. FAA counsel states that the inclusion 

of the subject e-mails in the E!R or in discovery responses "was not required, or even 

expected." 

In FAA counsel's world, the FAA may do as it pleases with information and 

witness statements obtained during its investigations and may destroy information that it 

does not like at will. Had the Respondent not smelled a rat and issued a subpoena to Dr. 

Long to see if the FAA's disclosures were complete, the FAA's destruction of evidence 

and violations ofF AA Order 2150.3B would never have been brought to light. The 

prejudice to the Respondent in the way that Mr. Rushton conducted his investigation and 

tainted the impressions of the FAA's key witness, Dr. Long, cannot now be reversed. The 

Respondent could not argue or attempt to dissuade the FAA from bringing this action at 

the informal conference using these documents because they were not contained in the 

EIR. 

Accordingly, sanctions for this conduct are warranted. Neither the Federal Rules 

nor the Rules of this Court countenance such behavior. The FAA is correct that this court 

should not be burdened by re-examining the entire investigation to decide for itself what 

evidence an investigator needed to include in the file. (See Response at pp. 12-13). The 

reason that the FAA's correct in this assumption is the fact that the FAA, by and through 

its investigators and attorneys, possessed a duty to preserve all documents obtained 

during its investigation so that the Respondent may obtain those documents by way of 

discovery in the event such information was not included in the ElR. The Respondent is 

entitled to rely on the FAA to preserve evidence and be forthright in the disclosure of 

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documents obtained during its investigation. After all, the documents sought and obtained 

by way of the subpoena to Dr. Long were the same exact documents that requested from 

the FAA but were destroyed. 

Apparently the new standard that should be adhered to by attorneys representing 

airmen and certificate holders in the defense ofF AA enforcement and civil penalty 

actions is that the completeness of the ElR cannot be trusted, informal conferences are 

fruitless endeavors since the FAA has deleted pertinent documents that can only be 

uncovered by a subpoena, the ethical conduct of the investigators cannot be trusted and 

subpoenas duces tecum must be issued to ALL potential witnesses and entities to ensure 

that documents uncovered, but buried, during an FAA investigation may be, hopefully, 

obtained. 

Contrary to the representations made by FAA counsel and its investigator, the 

destroyed documents are relevant not only to prove or disprove the allegations in the 

FAA's complaint, but also may serve a particularly important role for the crossexamination of the FAA's witnesses, especially since the evidentiary rules applicable to 

this case allow for the use of hearsay evidence at the hearing of this matter. As FAA 

counsel correctly points out, he provided Respondent's counsel with the FAA's response 

to Respondent's request for production of documents on or about September 15, 2015. 

(See Response at p.4). FAA counsel also correctly pointed out that on September 29, 

2015 Respondent's counsel sent him a letter detailing purported deficiencies in the effort 

FAA's September 15, 2015 discovery responses. Artfully, FAA counsel states 

"Respondent made no reference to requests for production 2 or 18" (See Response at 

p.4). Respondent's request for production number 18 requested: "All correspondence and 
e-mails sent to or sent from Dr. Alan Long related to the subject flight." (See Exhibit B). 

Respondent's request for production number 2 requested: "Complete copies of all 

statements (oral, written, or transcribed, signed or unsigned) by parties or witnesses to 

this matter, including but not limited to individuals who: has or claims to have knowledge 

of any of the facts specified in the Final Notice of Proposed Civil Penalty." (See Exhibit 

B). 

According to FAA counsel's Declaration and Exhibit M of Respondent's motion, 

FAA counsel contacted Dr. Long to see if he had any emails regarding this case. FAA 

counsel avers that Dr. Long produced only II pages of documents. (See Stevenson 

Declaration at ~5). A few days later, FAA counsel sent an email to the FAA's safety 

inspectors and Mr. Rushton asking for copies of statements and emails to and from Dr. 

Long (See Stevenson Declaration at ~4). Interestingly, when the FAA counsel requested 

emails and statements from Dr. Long he only received 11 pages of documents, but when 

Respondent's counsel served Dr. Long with a subpoena, far more emails, documents and 

Dr. Long's statement were produced. Prior to producing the "11 pages of documents" to 

FAA counsel, Dr. Long sent FAA counsel an email stating: "I'm working on getting this 

all out to you today for delivery by Monday. When does discovery end?" (See Motion 

Exhibit M)( emphasis supplied). What exactly did FAA counsel request from Dr. Long in 

undisclosed e-mail or conversation held on or about August 21, 20 15? 

Mr. Rushton was in possession ofDr. Long's October 1, 2012 statement that 

detailed Dr. Long's pre-September 18, 2012 discussions with the Respondent concerning 

potential purchase of an airplane, including a CJ 525 that was demonstrated in this case, 

that occurred months before the subject demonstration flight. Rushton's declaration states 

8!P"1o-e (~ 1:? 
that he routinely printed out "anything that seemed important" and that he did not include 

Dr. Long's initial statement in the EIR because it was "incomplete and duplicative of his 

more complete, later written statement." (See Rushton Declaration at~~ 3 and 5). Based 

on the FAA's numerous references and footnotes concerning its theory that the 

Respondent is making things up post hoc, this evidence is highly relevant. 

Paragraph 7 of Mr. Rushton's declaration graphically demonstrates how Mr. 

Rushton attempted to influence Dr. Long in order to obtain a favorable statement from 

Dr. Long. Are these bogus, unsubstantiated statements of"fact" and opinion really the 

sorts of information that FAA investigators are taught to state to independent witnesses as 

part of their investigatory purview? It does not appear so from an objective or liberal 

reading of the FAA's Order 2150.3B. 

With the Federal Rules apparently applicable to this case, the sanctions contained 

in the rules cited in respondent's motion should apply to the facts scenario that the court 

faces in this case. The FAA makes much of its assertion that this Court has no authority 

to issue sanctions in this case. Perhaps the rule makers did not contemplate the behavior 

exhibited by the FAA in this case. This Court does have inherent authority to manage the 

case that are before it for review In addition, further authority for sanction can be 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 the FAA for certifying the 

veracity of its discovery responses when the FAA knew or should have known, based on 

reasonable inquiry (the same inquiry that was performed after the filing of this motion), 

that additional documents exist, that the FAA destroyed pertinent documents, and that 

such documents could be obtained through Dr. Long. Rather than 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 "mail jail". 

The FAA's discovery response stated: "2. All statements in the possession of the 

FAA were included in the EIR and copies were appropriate previously provided to the 

respondent. 25. Objection, privileged. The documents generated by the named individuals 

concerning this case include deliberative process privileged materials, such as the abovereferenced opinions in the ElR ... Not waiving and notwithstanding those objections, all 

non-privileged documents have previously been produced." Obviously those responses 

statements are untrue. 14 C.F .R. § 13.207 (c) provides that under circumstances such as 

the present the administrative law judge shall: 

(I) Strike the pleading signed in violation of this 

section; 

(2) Strike the request for discovery or the discovery 

response signed in violation of this section and 

preclude further discovery by the party; 

(3) Deny the motion or request signed in violation of 

this section; 

(4) Exclude the document signed in violation ofthis 

section from the record; 

( 5) Dismiss the interlocutory appeal and preclude 

further appeal on that issue by the party who filed 

the appeal until an initial decision has been entered 

on the record; or 

(6) Dismiss the appeal of the administrative law judge'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 with joint 

discovery schedule. In this case the FAA failed to comply with the joint discovery 

schedule in providing full and complete answers to the respondent's discovery and failed 

to comply with the joint discovery order, paragraph 7, which imposes a duty to 

supplement or amend discovery. Under these circumstances the court may: 
(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. 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 of the FAA may not neatly fit within the confmes of the 

sanctions available in the Federal Rules or in Part 14, the FAA's behavior in destroying 

pertinent documents violating numerous sections of FAA Order 2150.3 B, and polluting 

witnesses, sanctions for this conduct are warranted. The behavior and conduct of the 

FAA's inspectors and counsel completely compromised the integrity of the case 

warranting sanctions by this Court. An NTSB rule that may be referred to as persuasive 

authority is Rule 19( d)(l ). Rule 19( d)(l) provides sanctions for the Administrator's 

failure to provide a copy of releasable portions of Enforcement Investigative Report 

(EIR) in enforcement proceedings. That rule provides that respondent may move to 

dismiss the complaint and for other relief in that the law judge may dismiss the FAA's 

case as a sanction for failure to provide a full copy of the releasable portions of the ElR. 

The Initial Decision of Judge William R. Mullins in the case of Administrator v. 

Michael, 2013 WL 6221805 (NTSB)(See Exhibit C), provides a similar factual situation, 

although not as grievous, that this court should use as persuasive authority to support 

sanctions in this case. In Michaels, an Order of Suspension with waiver of penalty was 

issued to an airman alleging failure to establish two-way radio communication as 

required with the ATC facility providing air traffic service to that airman. 2013 WL 

6221805 at p. 2. Following the alleged event, a letter of investigation was sent to the 
airman with the warnings required by the Pilot's Bill of Rights. Id. In the present case, 

Pilot's Bill of Rights warnings were provided to the owners and agents of the Respondent 

involved in this case. Like this case, the airman in Michael requested a copy of the 

releasable portions ofthe ElR. Id. The case was set for August 15, 2013. Id. On August 

6, 2013, the FAA fmally provided to the airman the air traffic data he had requested 

approximately eight months earlier. The airman moved to dismiss the proceedings based 

on the FAA's failure to timely provide this data. The airman argued that the failure of the 

FAA to provide the releasable portions of the ElR was a jurisdictional requirement that 

the FAA failed to satisfy. Id. Judge Mullins agreed and held: 

And since this public law and it was passed August 3, 

2012, 1 think that that requirement is jurisdictional in 

nature, and that the Administrator could not proceed until a 

period of time of thirty days after this material and data has 

been provided to the respondent after that request. And I 

think the failure to provide that material has provided a 

jurisdictional defect for the Safety Board to proceed in this 

case, and, therefore, I'm going to fmd for the respondent in 

this case because of this jurisdictional defect and the failure 

of the Administrator to provide this data until some eight 

months after the request was made, December 10 of 2012 

to August 6 of 2013. And during that period of time, the 

Administrator did proceed contrary to the Bill of Rights. So 

the order will be for the respondent. 

This and the other persuasive authority demonstrates how the NTSB takes 

seriously the compilation and dissemination of a complete EIR is case similar to the 

present one. The Department of Transportation and this Court should adopt this authority 

to address this matter and preserves the integrity ofF AA proceedings in this and future 

cases. 
WHEREFORE, for the foregoing reasons, the Respondent respectfully requests 

that this Court enter an Order of sanction against the FAA that in its judgment is just 

under the circumstances and for such other relief as the Court deems appropriate. 

Respectfully submitted, 

BARNETT & BORTH, LLC 

Paul R. Borth 

Counsel for Respondent, Birmingham Flight 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 certify that I have sent via Federal Express the foregoing 

RESPONDENT'S REPLY TO TilE FAA'S RESPONSE TN OPPOSITION OF 

RESPONDENT'S MOTION FOR SANCTIONS addressed to: 

Original and One copy to: 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket, AGC-430 

Wilbur Wright Building- Suite 2W I 000 

One Copy to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave. SE (Ell-310) 

Washington D.C. 20590 

Christopher Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 Southern Region 

1701 Columbia Avenue College Park, GA 30337 

Dated: January 6, 2016 

Paul R. Borth 

Counsel for Respondent 

Barnett & Borth, LLC 

800W aukegan Road 

Suite 200 

Glenview, lL 60025 

Tel. (847) 724-5520 

Fax (815) 356-7042 

prb@barnettlegal.com 
Summary: 

SECTION B 

Summary Of Facts 

Mr. Steven Michael Pickett, co-owner of the Birmingham Flight Center, Inc. provided air 

transportation 

provided the aircraft, 

services to Dr. Alan Long on September 18, 2012. Mr. Steven Michael Pickett 

the crews, and maintained control over all operational functions, 

serving as a direct air carrier 

thus 

Michael Pickett 

per 14 CFR Part 110.2. Attempts were made by Mr. Steven 

to frame the flight as a demonstration 

denies by statement 

flight but the passenger, Dr. Alan Long, 

that he had any intention of purchasing the plane and he considered 

flight a charter. 

the 

Referenced Individuals: 

2_ 

1. 

Mr. 

Mr. 

Shawn 

Steven 

Stacy 

Michael Pickett - Chief Executive Officer, Birmingham Flight Center 

Flowers - PIC, Birmingham Flight Center 

4. 

3. 

Mr. 

Mr. 

Bob 

Justin Matthew Lollar - Copilot/instructor, Birmingham Flight Center 

Kent - Director of Operations, 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 

September 20, 2012 

September 21, 2012 

Group 

Dr. Alan Long requests charter quote from Aviation Services 

for flight to Destin, Florida. Dr. Alan Long cancels request 

later that day citing another aircraft found that was more 

economicaL 

N525LP, 

Dr_ Alan Long is flown to Destin, Florida in Cessna Citation Jet, 

by the 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 

N525LP. 

flight in Citation Jet, 

Inspector Yancey Rushton meets with Dr. Alan Long to discuss 

as 

flight on September 18, 2012. Flight is described By Dr. Alan Long 

a business/charter flight and not a demonstration 

Alan 

flight Dr. 

Long explains that all arrangements 

Birmingham 

for flight handled by the 

Flight Center, Inc_ specifically Mr. Steven Michael 

Pickett. 

-~-r-.-S-te_v_e_n_~ __ k_h_a_cl_P-,-.c-k-ert------------~r-.. E~X=H~IB::IT:-.. :l§I------------2-0_1_2_S_0_0_9_00_5 __ 5

" 

A i 

:c 

----· FOR OFFICIAL USE ONLY 

----·--- ------·--·--···--- ---
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 

logbook to 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. 

October 4, 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 apologize for what 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 Michael Pickett 201280090055 

FOR OFFICIAL USE ONLY 

~~~·~---·· .~--~ ·-~-··--·--~--- ··--·---·-~-~---
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 of Airline 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 of Airline 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 internet website {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 of the 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. Steven Michael Pickett 201280090055 

FOR OFFICIAL USE ONLY 

-------· -·-··-··-· 
Confused and now concerned, Dr. Alan Long contacts Mr. Steven Michael Pickett to ask 

questions about the flight they had just taken to Destin, Florida. Mr. Steven Michael Pickett tells 

Dr. Alan Long "not to worry because he would calf Steven Allen and have it taken care of He 

said they would make it a demonstration flight since he had previously shown interest in the CJ 

class of planes" (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 offer would 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. 

September 21, 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 the jet (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 of the 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 fliljht time and he knew it was wrong. This was an intentionally 

false entry in his logbook designed to mask the true nature of the 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 of the 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. Steven Michael Pickett 2012S00911055 

FOR OFFICIAL USE ONLY 

~---- ----
arrangements for the flight were made by the Birmingham Flight Center, Inc. He never called 

the pilot or owner of the aircraft and honestly didnt even 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 it was a demonstration flight for Dr. Alan 

Long. When asked about the regulations that cover the demonstration of an aircraft (14 CFR 

91.501 ), none of the 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 hour to 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 out to 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 of town 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 that this 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. Steven Michael Pickett 201280090055 

FOR OFFICIAL USE ONLY 
lOP# 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 Of Proof 

Copy of Airman Information for Mr. Steven Michael Pickett. 

Copy of Alabama Secretary of State, Business Entities Detail 

Copy of Birmingham Flight Center website information 

Copy of Airman Information for Mr. Shawn Stacy Flowers 

Copy of Airman 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. Steven Michael Pickett 201280090055 

FOR OFF'ICIA L 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 of Investigation (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 of Rights 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. 

) 

) 

) 

) 

) 

) 

BIRMINGHAM FLIGHT CENTER, INC. ) 

Respondent. 

) 

) 

Docket No. FAA-201 4-0867 

Judge J .E. Sullivan 

FAA Case No, 2012S0090053 

RESPONDENT'S REQUESTS FOR PRODUCTION OF DOCUMENTS 

Respondent, BIRMINGHAM FLIGHT CENTER, by its attorneys, Barnett & 

Borth, LLC., hereby requests that the Administrator provide the responses to the 

following requests for production within (30) days, in accordance with Section 821.19 of 

the Rules of Practice in Air Safety Proceedings and Rule 34 ofthe Federal Rules of Civil 

Procedure: 

PLEASE NOTE 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, working paper, chart, graph, index, tape, minutes, contract, lease, invoice, record 

of purchase or sale, correspondence, telegram, cable, electronic or other transcription or 

taping of telephone or personal 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 in these Requests means the September 18, 

2012, flight ofN525LP, a Cessna Citation Jet from Birmingham, Alabama to Destin, 

Florida. 

Request for Production of Documents: 

l. All documents other than the previously disclosed EIR that you intend to use at 

the hearing of this matter. 

2. Complete copies of all statements (oral, written, or transcribed, signed or 

unsigned) by parties or witnesses to this matter, including but not limited to individuals 

who: has or claims to have knowledge of any of the facts specified in the Final Notice of 

Proposed Civil Penalty 

EXHIBIT 

llf'age B 
3. Complete copies of all documents that were used to support the allegations set 

forth in the Complaint. 

4. All rules, regulations, bylaws, guidelines of any public 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 of all experts and FAA witnesses that 

that you intend to call upon to give testimony or present evidence at the hearing of this 

matter. 

6. Copies of all articles, papers treatises, textbooks, journals, or other literature 

considered and/or reviewed 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 related to 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 at the hearing of this matter. 

9. All office or review notes, memos and all other documents generated by or on 

behalf of your experts in conjunction with their involvement in this case. 

10. Copies of all documents that were provided to your experts in this case. 

1 1. Copies of all correspondence by and between you and your experts in this case. 

12. Copies of all reports prepared by your expert witnesses. 

13. All documents of official or unofficial character for which you will seek the Court 

to take judicial notice of at the time of trial. 

14. All demonstrative and evidentiary exhibits you intend to use at the hearing of this 

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 of all 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 of Premier Group concerning 

the subject aircraft, N525LP. 
18. All correspondence and e-mails sent to 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 of Dr. Alan Long's 

airplane. 

21. All documents that refer to or relate to any existing between Dr. Alan Long and 

Aviation Services Group. 

22. All bills related to the subject flight. 

23. All written agreements between Dr. Alan Long and the Respondent and its agents. 

24. Complete and un-redacted reports of all individuals who performed investigation 

in this matter. 

25. All documents generated by Yancey Rushton, Pat Bruce, Clay Perkins, and David 

Hargett related to this case. 

26. Copies of all documents received through any subpoenas issued in this matter. 

27. All proof of payment for payments made by Dr. Alan Long to the Respondent for 

the subject flight. 

Demand to Supplement: Pursuant to Federal Rules, the party responding 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 or the party's attorneys or agents. 

Respectfully submitted, 

BARNETT & BORTH, LLC 

Dated: April20, 2015 

---~- (~~:::2~:!::::;:F/ 

Paul R. Borth 

Counsel for Respondent 

Barnett & Borth, LLC 

800Waukegan Road, Suite 200 

Glenview, IL 60025 

Tel. (847) 724-5520 

Fax (815) 356-7042 prb@barnettlegal.com 
CERTIFICATE OF SERVICE 

I hereby certify that I have this date faxed and emailed the foregoing 

RESPONDENT'S REQUESTS FOR PRODUCTION OF DOCUMENTS addressed to: 

Judge J.E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-31 0) 

Washington, DC 20590 

VIA FAX: 202-366-7536 

Deitrick H. Johnson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 Southern Region 

1701 Columbia Avenue 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,) 

IN THE MATTER OF: MICHAEL P, HUERTA, ADMINISTRATOR, FEDERAL AVIATION ADMINISTRATION, 

COMPLAINANT 

*1 APPEARANCES: 

On behalf of the 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 behalf of the Respondent: 

GEORGE T, BABCOCK, ESQ, 

16264 Rolling Ridge Road 

Omaha, Nebraska 68135 

402-533-2256 

gtbabcock@gmail,com 

V, 

STEPHEN B, MICHAEL, RESPONDENT 

Docket No,: SE-19457 

September 17, 2013 

ADMINISTRATIVE LAW JUDGE DECISION 

ORAL INITIAL DECISION AND ORDER 

ADMlNISTRA TIVE LAW JUDGE MULLINS: This has been a proceeding before the National Transportation Safety Board 

held under the provision of Section 44709 of the 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 of Suspension, as issued, had a waiver of penalty. 

The Order of Suspension, which serves as the complaint in our proceeding, was filed on behalf of the Administrator, Federal 

Aviation Administration, through regional counsel of the Central Region. 

The matter has been heard before William R Mullins, I'm the administrative law judge, 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 on the 20th of August of this year, and then by agreement of counsel and to help in my scheduling, it was moved up 

to the 15th of August And then there were some motions filed fairly late and on request of the Administrator, then the trial 

was continued to today, the 17th of September, 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, of here 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 of their 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 of the Pilot's Bill of Rights. It's a case of first 

impression for me, the issue that's come up under the Pilot's Bill of Rights. It's certainly a first impression for counsel. And I 

have consulted a little bit with my brother judges, 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 review this and issue some final guidance on the Pilot's Bill ofRights. 

*2 But in any event, the Order of Suspension with waiver of penalty was issued back on March 11 of this year, and basically 

everything was stipulated to. The Respondent did not admit to anything, but he stipulated that if the Administrator put on 

witnesses that they would testifY that the airline transport pilot certificate alleged in paragraph 1 would be established. 

The facts of the case are, or the issue involved in the case, the regulatory violation involved in the case is that on or about 

July 10 of 2012 the Respondent acted as pilot-in-command of Civil Aircraft November-2897-Alpha, a Piper Model PA28, 

property of another, on visual 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 A TC 

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 of careless acts on your part. Your failure 

endangered the life of your passenger as well as the lives and property of others operating within the subject Class C airspace. 

Now, all of this was stipulated to, that if the 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; and FAR 91.13(a)(1 ), which is the careless and reckless operation. 

Now, the parties stipulated that if the Administrator called the witnesses that they 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 of investigation under the Pilot's Bill of Rights, a letter that was sent to Mr. Michael. 

The second exhibit stipulated to was Exhibit A-3, which is Respondent's e-mail of October 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 of proposed 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 

information that was required to be provided under the Pilot's Bill ofRights. 

The Respondent had three exhibits. One was the August 12 of 20 13 receipt of the 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 summary judgment. 
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 of Rights 

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 of au investigation described in paragraph (I) during the 30-day period beginning on the date in which the air traffic 

data required under paragraph ( 4) is made available to the individuaL" 

Now, the issue here, the Administrator argues that their letter of investigation says -- that that was the letter telling them it 

was available, that that constituted the satisfaction of the request. The Respondent takes the position that the request was 

made in December, that the Administrator proceeded in March -- and I'll talk about those dates with the Order of Suspension 

-- and that there was never any compliance with this. 

The Respondent has taken the position that this is a jurisdictional issue. And obviously under the law if that is jurisdictional, 

then the order must be in favor of the Respondent because there's no jurisdiction for the Safety Board to enter an order. 

The dates are important in this matter in that July 10 of last year, 2012, was the date of the 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 of proposed certificate action. December 10 was the request for the Pilot's Bill of Rights 

data. March 11, the Order of Suspension was issued. April 8, an answer was filed denying all allegations, except the 

possession -- or the certificate that was identified as belonging to the Respondent. 

And then, of course, as I said at the outset, the matter was set for hearing on August 20, and then moved up to August 15, but 

this data was-- and that notice of hearing was sent out on the 5th of June. And then August 6 the data was provided. August 6 

of2013 the data was provided, a week before trial or 9 days before trial, and the-- well, let me back up. 

The Administrator's argument is that the letter of investigation advises the client, the respondents in these cases, that this is 

available and that that satisfies the timing requirement under the Pilot's Bill of Rights. But the letter of investigation was 

August 28, but the notice of proposed certificate action was not issued until November 15. 

*4 In another part of this 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 or perhaps a warning letter. And 1 think 1 recall that there was some data in that motion that there was over 

70 percent of the Administrator's cases go off on 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 of Suspension or revocation versus remedial training or a 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 Respondent that they 

have decided in favor of one or the other until the notice of proposed certificate action is served, and that notice of proposed 

certificate action was issued on November 15. And on December 10, the Respondent asked for this data, within 30 days of 

the notice of proposed certificate action. 

And, again, the Pilot's Bill of Rights 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 of this 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 of Suspension was issued in March of this year-- March 11, the Order of Suspension, but the data 

requested under the Pilot's Bill of Rights was not provided until August 6 of this year, 2013. And, therefore, the timing 

requirement has not been satisfied under the Pilot's Bil1 of Rights. 

And since this is public law and it was passed on August 3 of 2012, I think that that requirement is jurisdictional in nature, 

and that the Administrator could not proceed until a period of time 30 days after this material and data have been provided to 

the Respondent after that request. 
IN THE MATTER OF: MICHAEL P. HUERTA, ... , 2013 WL 6221805 ... 

And I think the failure to provide that material has provided a jurisdictional defect for the Safety Board to proceed in this 

case, and, therefore, I'm going to find for the Respondent in this case because of this jurisdictional defect and the failure of 

the Administrator to provide this data until some 8 months after the request was made, December 10 of 2012 to August 6 of 

2013. And during that period of time, the Administrator did proceed contrary to the Bill of Rights. 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 

of the Administrator's Order of Suspension as issued. 

And specifically I find that because the Pilot's Bill of Rights, as to the issuance of the air traffic data requested has not been 

provided, that they are under that provision, paragraph (5) in the Pilot's Bill of Rights, there is not jurisdiction for the Safety 

Board to proceed and, therefore, the order will be in favor of the Respondent. 

*5 EDITED ON OCTOBER 23, 2013 

WILLIAM R. MULLINS 

Administrative Law Judge 

National Transportation Safety Board (N.T.S.B.) 

___ 2013 WL 6221805 (N.T.S.B.) 

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