08/19/2013 09:22 4252271007 ANM7 PAGE 01/10 

FACSIMILE MESSAGE 

FEDERAL AVIATION ADMINISTRA TJON 

OFFICE OF REGIONAL COUNSEL 

ANM,7 

1601 LIND AVENUE S.W. 

RENTON, W ASlllNGTON 98057 

The information contained in this facsimile message is legally privileged and confidential 

information and is intended only for the use of the individual named on this cover sheet. 

T f the reader of this message is not the intended recipient, you are hereby notified that any 

use, dissemination, distribution, or copy ofthis facsimile is strictly prohibited. Tf you 

have received this facsimile in error, please immediately notify us by telephone at 

425-227-2007. 

DATE: August 19,2013 NO. PAGES: 10 including cover 

TO: Hearing Docket Clerk FROM: Robert Spitzer 

FAX NO.: 202·493-5142 FAX NO.: 425-227-1007 

PHONE NO.: PHONE NO.: 425-227-1847 

RE: FAA Case No. EMAIL: robert.spitze1·@faa.gov 

2011NM020013 

Complainants Response to Respondents Motion to Compel 

_,_ 
08/19/2013 09:22 4252271007 

Robert Spitzer 

FAA Office of Regional Counsel 

160! Lind Ave. SW 

Renton, Washington 98057 

Telephone: (425) 227-1457 

Facsimile: (425) 227-1007 

ANI~7 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARJNGS 

WASHINGTON, D.C. 

Michael J. Huerta, Administrator 

Federal Aviation Administration; 

Complainant, 

vs. 

Alaska Airlines; 

Respondent. 

FAA Case Number: 2011NM020013 

FDMS No. FAA-2013-0287 

Judge Richard Goodwin 

ADMINISTRATOR'S RESPONSE TO RESPONDENT'S MOTWN TO COMPEL 

PAGE 02/10 

The Administrator, through his representatives, hereby submits this response to the Respondent's 

Motion to Compel, pursuant to 14 C.F.R. §13.218(d). 

Background 

This case concerns a flight conducted by Alaska AirUnes on January 7, 2011, as Alaska flight 86 

from Anchorage, Alaska to Seattle, Washington. John Elgee, a passenger aboard flight 86 and a 

retired FAA aviation safety inspector witnessed this flight takeoff with frost on the aircraft's wings. 

in violation of14 C.F.R. §§119.5(1) and 121.629(b). The Administrator issued a Final Notice in this 

matter on May 1, 2013, and Alaska Airlines (Respondent) requested a hearing with the DOT in this 

matter. 

Respondent has made two written requests for discovery, and has sought to depose FAA employees 

Justin Meisberger and Joel Wade. While these individuals were involved with the internal 

processing of this case, the FAA has 110! listed eith.er employee as a witness for trial, and does not 

intend to call either individual to testify for the :P AA during the trial in this matter. However, in the 

Complalnanfs Response to Respondent's Motion to Compel 

Alaska Airlines- FDMS No. FM-;1013-0287 

Page I of7 

ROBERT SPITZER, F AAAITORNEY 

TEL: (425) 227·14i7; FAX: (425) 227-1007 
08/19/2013 09:22 4252271007 ANM7 PAGE 03/10 

interests of providing AJaska Airlines with full disclosure, the FAA produced .Mr. Meisberger and 

Mr. Wade for a deposition to be conducted by Respondent on August I, 2013. During the 

examination of Mr. Meisberger, Respondent asked the deponent numerous questions seeking expert 

testimony, as well as numerous questJ.ons regarding the FAA's internal deliberative processes. 

Administrator's counsel instructed the witness not to answer the questions. Respondent has sought 

to compel responses to these questions, as well as an un-redacted portion of 1l1e Enforcement 

. Investigative Report, and FAA comm).lllications with John Elgee in a motion to compel dated 

August 9, 201 3. Additionally, the Respondent has sought to compel the FAA to produce ari.swers to 

its 2"d request for discovery. While the responses to this request for discovery are not yet due, in the 

interest of judicial efficiency and sin.ce 1l1e Agency's objections to this questions listed in the 

·Respondent's motion to compel are substantially similar to the issues raised in the deposition, the 

Administrator will also respond to Respondent's efforts to compel responses to this 2"drequest, and 

waive all timeliness arguments. 

Information concerning the FAA's Internal Deliberations is Privileged as Deliberative Process 

. The deliberative process privilege generally protects information concerning internal agency 

communications made before the decisional process was complete. This privilege is designed to. 

protect internal conversations and allow an open discourse within the Agency prior to the initiation 

of an action. 

Numerous DOT cases have held that internal communications regarding internal FAA 

recommendations concerning civil penalty actions are deliberative process. In the Matter of U.S. 

Airways, Docket No. CP08EA0006 (2008), the DOT held that the names of individuals involved 

with selecting the amount of a civil penalty were protected under deliberative process privilege 

"Wbile the request may be viewed as a request for purely factual information, it in 

reality seeks information concerning the recommendations ofF AA personnel 

concerning the amount ofthe civil penalty. Such recommendations are clearly predecisional because, at the time they are made, the agency may or may not adopt 

them in whole or in part. The policy behind the deliberative process privilege, to 

encourage agency employees to provide candid advice wi.thout fear of 

embarrassment or retri.bution,, counsels that, except in the most exigent 

circumstances, such recommendations should be kept confidential." . 

Similarly in In th.e matter of Continental Airlines FAA Order No. 90-19 (1990), the FAA decision 

maker held that ".Information relating to the agency's decisiou making process prior to the issuance 

of the complaint is irrelevant, and protected from discovery by the deliberative process privilege". 

In the iristant case, the Respondent has sought to compel the FAA to provide the names of 

individuals involved in reviewing tli.e case, several pages of the Enforceme11t lovestigati ve Report in 

this matter (which contain material concerning internal recommendations as to regulations violated, 

mitigating and aggravating factors as well content concetning various FAA employees' 

reconunendations and suggestions concerning this: case), testimony from Mr. Meisberger 

Cpmplninanfs Response toRcspondonfs Motion to Compel 

Alasl<n Airlines- FDMS No. FAA-20 l3-0Z87 

Page 2 of7 

RoBERT SPITZER, FAA A no.• NEV 

TEL: (425) Z27:l4!7; FAX: (425) 227-l 007 
4252271007 ANM7 PAGE 04/10 

concerning his opinions on the subject case, and tile content of conversations concerning this case 

which were made prior to tile decision to issue the Notice in this matter. Each of these items is 

protected under the deliberative process privilege. 

The redacted portions of the Enforcement Investigative Report contain advice, opinions, and 

recommendations from various FAA offices concerning regulations violated and sanc6ons imposed. 

The EIR's contents were v,xitten well before the FAA initiated action in tile subject case, making it 

obviously pre-decisional. The commentary contained within tile Section B contain portions of tile 

reporting and reviewing inspector's opinions and conjectures concerning the instant matter, and 

were made to assist the FAA in determining the type of action to take in this matter. The Flight 

Standards division and FAA Counsel i.n this matter relied upon these statements when deciding 

whether or not to initiate action in this case, and the extent of civil penalty to be sought. The 

redacted portions which Respondent seeks from tile FAA have all been held in prior DOT cases to 

be protected documents. Absent a particularized need for tile requested infonnation. (which Alaska 

has not provided) the DOT has refused to compel the FAA to disclose redacted portions of an EIR. 

See ln the Matter ofMalqg FAA docket No. CP02SOOOl5(2003), In the matter ofMartinAire 

Aviation~ LLC, 2013 WL 1933376(2013), and Bachman Pawn& Gun. FAA Docket No. 

CP94WP0166(1994). 

Respondents have also sought to compel the contents of the conversations these inspectors had 

about this case. Much like thnedacted portions of the EIR discussed above, these items are also 

privileged. as deliberative process. The content of conversations which inspectors may have had 

concerning this case before the case was initiated is part of the back-ru)d·forth intemaJ. process 

which tile deliberative process privilege is designed to protect. These discussions are all part of the 

internal dialogue that the FAA expects its employees to have prior to the initiation of a case. The 

creation of an EIR is inherently a collaborative process, and consists of numerous FAA individuals 

discussing tile merits ru)d failings of a case. Like tile redacted portions of tile EIR discussed above, 

the content oftilese conversations is pre-decisional, and a part of the FAA's internal deliberations 

oil whetiler or not to proceed witil a case. As such these conversations are protected under the 

deliberative process privilege. 

Any Disclosure of Portions of Internal Communications by Joel Wade was Unauthorized, and 

does not Constitute a Waiver oftbe Deliberative Process Privilege 

While tile FAA cannot deny the fact that Mr. Wade communicated his personal opinions to Alaska 

Airlines concerning this action, such communications were unauthorized. (See attached Declaration 

of Jodi Baker.) Mr. Wade's disclosure of any materials concerning this case was made witilout the 

knowledge or consent of his supervisors and were not autilorized by the FAA. The FAA was 

unaware of this disclosure untiltil.e August 9, 2013 motion from Alaska Airlines .. 

The issue on whether an unauthorized or inadvertent disclosure made by an Agency waives tile 

Deliberative process privilege has not been heard by the DOT. However, federal courts have held 

that to waive tile deliberative process through waiver, tile disclosure must have been voluntary and 

Complainanfs Response to Respondenes Motion to Comp~J 

Alaska Airlinos- FDMS No. FAA-2013·0287 

!'ago3 of7 

ROBERT SPITZER. F AAATTORW>Y 

TEL; (425) 2;27·1417: FAX: (425) 227·1 007 
08/19/2013 09:22 4252271007 ANM7 PAGE 05/10 

authorized (emphasis added). See Shell Oil Co v. IRS 772 F.Supp 202(1 991), arid IRS Florida 

House of Representatives v. U.S. Dept. of Commerce, 961 F.2d 941 (1992) cen dismissed 506 U.S. 

969(1992), The facts ofMr. Wade's disclosure clearly do not rise to the level of voluntary, 

authorized release. (See declaration of Jodi Baker) 

While the Respondent has cited two slip opinions and a bench order which found that deliberative 

process had been waived by a governmental entity which voluntarily shared information with a third 

party, none of the cases cited by the respondent appear to consider an unauthorized disclosure, such 

as occurred in the instant matter. 1 Since the disclosure which occurred in the instant case was not 

authorized by M:r. Wade's supervisors, and was effectively a leak, this cannot be considered to meet 

the standard of "authorized, voluntary disclosure by an agency" required by the case law to establish 

a waiver of the deliberative process privilege. A lone. Agency employee, acting 1:\ithout the 

knowledge and consent of his supervision, cannot singlehandedly waive deliberative process 

privilege for the FAA. 

The Motion to Compel will not lead to the Discovery of Admissible Evid.ence 

Whether or not tbe information sought of Mr. Meisberger and Mr. Wade is protected under tbe 

deliberative process privilege, the infotmation which the Respondent seeks is neither relevant nor 

admissible. Additionally, none of the information sought by the RespondeJ"t will lead to the 

discovery of admissible evidence. This alone is reason enough for the Judge to deny the 

Respondent's pending Motion. to Compel. 

14 C.F.R. §13.220(e) permits discovery of inadmissible evidence only to the extent that such a 

request is reasonably calculated to lead to the discovery of admissible evidence. 49 C.F.R. part 9, 

and 14 C.F.R, §13.227 prohibit employees of the FAA from giving expert or opinion testimony for 

any party other than the FAA in any proceeding governed by 14 C:F .R subpart a". Respondents 

have sought to compel testimony from Mr. Meisberger concerning his opinions regarding the 

subject enforcement action. Mr. Me.lsberger and Mr. Wade have not been listed as witnesses for the 

government in this matter, and their opinions concerning this case are irrelevant, and protected 

under 49 C.F.R. part 9 and 14 C.F.R. §13.227. ]l.ir. Wade and M:r. Meisberger's opinions about this 

case will not only be inadmissible in the trial of this matter, there is no possibility that any of their 

opinions could possible lead to the discovery of any admissible evidence. The opinions of these 

'With respect to Comm. to Brige the Gap, and, Nw. Envtl, Def C/1'. V. U.S. Forest Serv., Responden.ts appear to be 

quoting from the DO.T "Guide to the Freedom oflnfromation Act" 2009 Edition, Page 702, which cites a slip 

opinion !)lld magistrate op.inion in these two FOIA cases to support its posltion that "courts are more likely to fmd 

that waiver has 'occurred when the prior disclosure was 'selective' and resulted .in. u11.fairncss." (See U.S. D.O.J 

Guide to the Freedom of Information Act, 2009 Editi.on, Page 702). In the instant matter, the Respondents have not 

made a claim that any disclosure by the FAA was selective or resulted in unfairness. 

2 49 C.P.R. part 9 prohibits Agency employees from. testifying as fact witnesses against the U.S. Government except 

with the leave of agency counsel. 

Cornplainant1s Response to Regpondent's Motion to Compel 

Al~ska Airlines -FDMS No. FAA-201 3-0287 

Page 4 of7 

RoaERT SPITZER, FAA ATIORNJ<Y 

TEJ.: (425) 227·1417; PAX (4·:25) 227-1007 
08/19/2013 09:22 4252271007 ANM7 PAGE 05/10 

individuals, are simply opinions of two employees of the FAA, and discovering an individual's 

opinion about the merits of an underlying case cannot lead to the discovery of any additional, 

admissible evidence, Tellingly, Alaska makes no argument as to how obtaining the opinions of two 

Agency employees could possibly lead to the discovery of admissible evidence. 

While the Respondents do not bi.de the fact that they wish to use the opinions of Mr. Meisberger and 

Mr. Wade to help defend their case, these opinions themselves are inadmissible, and irrelevant. It is 

quite possible that in nearly every enforcement action prosecuted by the FAA, a diligent respondent 

could locate an i.ndividual -within. the agency who did not believe that such an action was justified. 

However, the opinions of individuals who work for the agency, and have not been identified as 

experts to testify on behalf of the agency, are irrelevant and may not be admitted into evidence. 

14 C.F .R. § 13 .227 envisions this scenario, and accordingly prohibits employees of th.e FAA from 

giving opinion testimony against the FAA, and similarly prohibits employees of a Respondent from 

giving opinion testimony against the Respondent. An FAA request to depose anyone within Alaska 

Airlines who believes that the FAA's action was reasonable would be just as inappropriate as the 

request currently pending in this Motion to Compel. 

Other Discovery Requests 

The Respondents have also sought to compel "all correspondeJ)ce, including e-mails, any employee 

has sent to or received from John Elgee regarding this action or the allegations in the complaint." 

While the Respondents accurately quote the first portion of the Administrator's response concerning· 

the Administrator's objection, they failed to quote the Administrator's additional line stating "The 

objection nonwithstanding, please see previously transmitted EIR.'' All relevant information 

requested by the Respondent in this request for production has been supplied to the Respondent 

with the releasable portion of the EIR. Any communications made by the Agency's attorneys with 

Mr. Elgee (a non-party witness) are protected under the attorney work-product privilege, or are of 

such a mundane nature so as to render them irrelevant. 

The Respondents have also requested an expert report from the Agency's icing expert witness in 

this matter, TI)omas Bond. TI1e Respondents have been provided with the extent of non" privileged 

communlcations with the expert in this case, which consist of email communications made by the 

CMO with the expert, Thomas Bond. The Respondents are welcome to depose Mr. Bond to further 

ascertain the grounds for his opinion. However, to date, the F AAhas not received a Notice of 

Deposition for Mr. Bond from the Respondents.· 

With respect to the Respondent's outstanding discovery requests, while these discovery requests are 

not yet due, the FAA will waive any timeliness objections and state that the FAA intends to answer 

the Respondent's questions concerning changes to 14 C.F .R. 121.629, and provide the identity of 

experts who reviewed or analyzed certain photographs. With respect to the aggravating or 

mitigating factors identified by FA inspectors, and the request for documents in Mr. Meisberger' s, 

Mr. Wade's and Mr. BaJa's files, the FAA objects to these requests on the grounds that tllis material 

is protected under the deliberative process privilege. 

Complainant:s Response to Respondent's Motion to Compel 

Alaska Airlines- FDMS No. FAA-2013-0287 

Page 5 of7 

ROBERT SPITZER, FAA ATTORNEY 

TEL: (425) 227-1417; FAX (4:25) 227-1007 
08/19/2013 09:22 4252271007 ANM7 PAGE 07/10 

Aggravating or mitigating factors considered by the FAA inspectors and the contents of the files of 

the inspectors who have reviewed this file are deliberative process. The FAA has previously 

supplied any items with ap.y evidentiary value contained within these inspectors' files when it . 

supplied the Respondent with the re!easai;>Je portions of the EIR. Any additional material contained 

wi,thln these inspector's files would only be the notes; memos, and other memoranda which contain 

the impressions, theories, and opinions of these inspectors. Like tl1e redacted portions .of the EIR, 

and the pre-initiation conversations of these inspectors described above, any contents of the flles of 

these individuals which have not been previously supplied are privileged Wlder the deliberative 

process. Likewis(l, the aggravating or mitigating factors wbich inspectors identified in this case are 

also protected as pre-decisional deliberative process. Lil<,e the conversations which the inspectors 

had about this case;these factors are specific portions of the back-and-forth communications which 

FAA employees had when deciding to proceed with this case, which was ultimately relied upon by 

the FAA when deciding when deciding to issue this case. As such, these factors are protected under 

the deliberative process privilege. 

Acc()rdingly, except with respect to the items which the FAA has specifically agreed to provide in 

this reply, the FAA respectfully requests that the Honorable Administrative Law Judge deny the 

Respondent's Motion to Compel. 

Respectfully submitted this 19tl' day of August2013. 

DWIGHT WILLIAMS 

Regional Counsel 

By: 

Robert Spitzer 

Attorney 

Office of the Regional Counsel (AMN-7) 

Federal Aviation Administration 

1601 Lind Avenue, SW 

Renton, WA 98057 

(404) 227-1417 

(404) 227-1007 FAX 

E-mail Address: robert.spitzer@faa.gov 

Complainant's Response: to Respo.ndenfs Motion to Com.pel 

Alaska Airlines- FDMS No. FAA-2013-0287 

Page 6 of7 

ROBERT SPITZER. FAA ATTORNEY 

TEL: (425) 227-1417; FAX: (425) 227-1007 
08/19/2013 09:22 4252271007 ANM7 PAGE 08/10 

CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing Complainant's Response to Respondent's Motion to Compel 

has been served via Fax and First-Class Mail this date, to the following: · 

Honorable Richard Goodwin 

Office of Hearings 

United States Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

Fax: 202-366-7536 

Federal Aviation Administration 

ATTN: Hearing Docket Clerk 

Wilbur Wright Building 

Washington, D.C. 20591 

hx: 202-493-5142 

William V. O'Connor 

Morrison & Foerster, LLP 

12531 High Bluff Drive 

San Diego, CA 921 30-2040 

Fax: 858-720-5125 

Jeremy Ross 

Senior Attorney 

Alaska Airlines, lnc. 

P.O. Box 68900- SEAZL 

Seattle, WA 98166 

Fax: 206-39 -5468 •. 

Te iKirk 

/ 

0 1ce of Regional Counsel (ANM~7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton, WA 98057 

(425) 227-2160 

Complainanfs R~:sponse to Respondmt's Motion to Compel 

Alaska Airlines- FDMS No. FAA-2013-0287 

ROBERT SPITZER, F AA.ATTORNEY 

TEL: (425) 22H417; FAX: (425) 227-1007 

Page 7 of7 
08/19/2013 09:22 4252271007 ANM7 

UNITED STATES OF ;\MERICA 

DEPARTMENT OF TRANSPORTATIOI\' 

OFFICE OF HEARl NOS 

WASIHNGTON. D.C. 

M ichacl J J·hlcrtn, Aclministmtor 

Fcdcml Av'ration Administration: 

C'ompll·>il\lillt. 

Ala~k<l Airlines: 

Rcspond~nt. 

vs, 

FA.A. Case Number: 20 I I NM0200 13 

FDMS No. FAA-2013-02&7. 

Judge Richa1·d (ioodwi., 

J)EC.LARATION 0~' .IODI HAKF..R 

1. My n~mo is Jodi Baker. I am currently employed by the FAA <ts the dcjltlly 

assistat1t division n1anager of the FAA's Air Tnuisporlalion Division: 

2. html November 4. 2012, to present, 111avc had supervisory rcsposibility f'or Joel 

Wade, an Aviation Safely l.n>pcctor cmploycu in the Air Can1cr TJ'tlining 1tnd Part 

142 Tr;tilling Ce11tcr B1'anc:h. n submcJinatebrallch oftl1c AirTmnsportalinn 

Division_ 

3. I have read the declarution Sttbmittcd by Jim Winkelman, fmm Alaska Airlines. 

4. l wa~ r11)t aware of" the conduct by Joel Wmk ns described in the declaration until 

the FAA received this dcd<~r<tlion. 

5. At the ti.mc of the ;~ctions described by Jim Winkehmm in his decimation. Joel 

\Vade was nN employed as assistant POl for Aitlsk;i J\·irl'i.ncs. (lnd he diu not \vl)rk 

for the Alasku Airlines Ccrtilicale Management Onice. 

6- l did not in an)' way condone or approw the action:; of Joel Wadll described in the 

declaration of Jim Winkelman, nnd "'lY ,,I',J,,el Wade's a~ lions as dcscl'ihed in the 

Winkelmun decimation were made witil<)ut the knowlcdgo or outhoriz•llion or the 

F;\A_ 

7. I dedare the alwve under penalty ofpc1:jury. 

n~·cl:lw1ilH1 ,)r J1HII Ll;;ll.;cr 

Ak1:.;kn1\irlb~..:s- [II)J'YI~ N11. FAA<Z01~~(1~~7 

Pug~.: 1 ()f'2 

PAGE 09/10 
08/19/2013 09:22 4252271007 

/}t,'!.!l;lt\l\k111 of'JorJi Baker 

,.\ h1-;J.;.~ A.i !"lin'";-; ·~ FDMS l\:t\ ltA.-\-10 13-02!-l7 

l':1gL' 2 c~f 2 

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