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

FACSIMILE MESSAGE

FEDERAL AVIATION ADMINISTRATJON OFFICE OF REGIONAL COUNSEL ANM,7 1601 LIND AVENUE S.W. RENTON, WASlllNGTON 98057

The information contained in this facsimile message is legally privileged and confidential information and is intended only for the use ofthe individual named onthis cover sheet. T



### f the reader ofthis message is not the intended recipient, you are hereby notified that any use, dissemination, distribution, or copy ofthis facsimile is strictly prohibited. Tfyou have received this facsimile in error, please immediatelynotify us bytelephone 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 ofRegional 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.

AlaskaAirlines; Respondent. FAA Case Number: 2011NM020013 FDMS No. FAA-2013-0287
Judge Richard Goodwin



### ADMINISTRATOR'S RESPONSE TO RESPONDENT'S MOTWN TO COMPELPAGE 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 aflight conducted 

### by AlaskaAirUnes on January 

### 7, 2011, as Alaskaflight 

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

### safety inspector witnessed this 

### flight takeoffwith frost on the aircraft's wings. in violation of14 C.F.R. §§119.5(1) and 121.629(b). The Administrator issued aFinal Notice in this matter on May 

### 1, 2013, and Alaska Airlines (Respondent) requested ahearing with the DOT in this matter.
Respondent hasmade 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 :PAA 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, FAAAITORNEY TEL: (425) 227·14i7; FAX: (425) 227-100708/19/2013 09:22 4252271007 ANM7 PAGE 03/10

interests ofproviding AJaska Airlines with full disclosure, the FAAproduced 

### .Mr. Meisberger and Mr. Wade for a deposition to be conductedby Respondent on August I, 2013. During the examination ofMr. 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 instructedthe witness not to answer the questions. Respondenthas sought to compelresponses to these questions, as well as an un-redacted portion of1l1e Enforcement

. Investigative Report, and FAA comm).lllications with John Elgee in a motionto 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, inthe interest of judicial efficiency and sin.ce 1l1e Agency's objections to this questions listed in the ·Respondent's motion to compel are substantially similarto the issues raised in the deposition, the Administrator will also respond to Respondent's effortsto 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 ofan action.

Numerous DOT cases have held that internal communications regarding internal FAA recommendations concerning civil penalty actions are deliberative process. Inthe Matter ofU.S. Airways, Docket No. CP08EA0006 (2008), the DOT held that the names ofindividuals involved with selecting the amount ofa civil penalty were protectedunder deliberative process privilege
"Wbile the request may be viewed as arequest 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 deliberativeprocess privilege, to encourage agency employees to provide candid advice wi.thout fear of embarrassmentorretri.bution,, counselsthat, except 

### inthe most exigent circumstances, such recommendations should be kept confidential."

. Similarly in In th.e matter ofContinental Airlines FAA Order No. 90-19 (1990), the FAA decision makerheld that ".Informationrelating to the agency's decisiou making process prior to the issuance ofthe complaint is irrelevant, and protected from discovery bythe deliberative process privilege".

In the iristantcase, the Respondent has sought to compel the FAA to provide the names of individuals involved in reviewing tli.e case, several pages ofthe Enforceme11tlovestigative Reportin this matter (which contain material concerning internal recommendations as to regulations violated, mitigating and aggravating factors as well contentconcetning 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-20l3-0Z87 Page 2 of7 RoBERT SPITZER, FAA Ano.•NEV TEL: (425) Z27:l4!7; FAX: (425) 227-l0074252271007 ANM7 PAGE 04/10

concerning his opinions on the subject case, and tile content ofconversations concerning this case which were made prior to tile decision to issue theNotice inthis matter. Each ofthese items is protected under the deliberative process privilege.

The redacted portions ofthe 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 intile subject case, making it obviously pre-decisional. The commentary contained within tile Section Bcontainportions oftile reporting and reviewing inspector's opinions and conjectures concerning the instant matter, and
were made to assistthe FAA in determining the type ofactionto take in this matter. The Flight Standards division and FAA Counsel i.n this matterrelied upon these statements when deciding whether or notto initiate action in this case, and the extent ofcivil 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 notprovided) the DOT has refused to compel the FAA to disclose redacted portions ofan EIR. See 

### lnthe Matter ofMalqg FAA docketNo. CP02SOOOl5(2003), 

### In the matter ofMartinAire**Aviation~** LLC, 2013 WL 1933376(2013), and Bachman Pawn& Gun. FAA DocketNo. CP94WP0166(1994).
Respondents have also sought to compel the contents ofthe conversations these inspectors had aboutthis case. Much likethnedactedportions ofthe EIR discussed above, these items are also privileged. as deliberative process. The content ofconversations which inspectors may have had concerning this case before the case 

### was initiated is part ofthe back-ru)d·forth intemaJ. process whichtile deliberative process privilege is designed to protect. These discussions are all part ofthe internal dialogue that the FAA expects its employees to have priorto the initiation ofa case. The creation ofanEIRis inherently acollaborative process, and consists ofnumerous FAA individuals discussing tile merits ru)d failings ofa case. Like tile redacted portions oftile EIR discussed above, the content oftilese conversations is pre-decisional, and apart ofthe FAA's internal deliberations oilwhetiler or notto proceed witil a case. As such these conversations are protectedunder the deliberative process privilege.
Any Disclosure ofPortions ofInternal Communications by Joel Wadewas Unauthorized, and does notConstitute a Waiver oftbeDeliberative Process Privilege

While tile FAA cannot deny the fact thatMr. Wade communicated his personal opinions to Alaska Airlines concerning this action, such communications were unauthorized. (See attached Declaration ofJodi Baker.) 

### Mr. Wade's disclosure ofany materials concerning this case was made witiloutthe knowledge or consent ofhis supervisors and were not autilorizedby the FAA. The FAA 

### was unaware ofthis 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 notbeen heard by the DOT. However, federal courts have held that to waive tile deliberative process through waiver, tile disclosure musthave been voluntary and
Complainanfs Response to Respondenes Motion to**Comp~J** Alaska Airlinos- FDMS No. FAA-2013·0287 !'ago3 of7 ROBERT SPITZER. FAAATTORW>Y TEL; (425) 2;27·1417: FAX: (425) 227·1 00708/19/2013 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 ofRepresentatives v. U.S. Dept. ofCommerce, 961 F.2d 941 (1992) 

### cendismissed 506 U.S. 969(1992), The facts ofMr. Wade's disclosure clearly do not rise to the level ofvoluntary, authorizedrelease. (See declaration ofJodi Baker)

While the Respondenthas citedtwo slip opinions and 

### abench orderwhich found that deliberative process had been waived by a governmental entity which voluntarily shared information 

### with athird party, none ofthe cases cited by the respondent appearto consider anunauthorized disclosure, such
as occurred in the instantmatter. 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 cannotbe considered

## to meet the standard of"authorized, voluntary disclosure by an agency" required by the case lawto establish
a waiver ofthe deliberative process privilege. A lone. Agency employee, acting 1:\ithoutthe knowledge andconsent ofhis supervision, cannot singlehandedly waive deliberative process privilege for theFAA.

The Motion to Compel

### will not lead to the Discovery ofAdmissibleEvid.ence

Whether ornot tbe information sought ofMr. Meisberger and 

### Mr. Wade is protected undertbe deliberative process privilege, the infotmation which the Respondent seeks is neither relevant nor admissible. Additionally, none ofthe information sought by the RespondeJ"t will lead to the discovery ofadmissible 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 ofinadmissible evidence only to the extentthat such a request is reasonably calculatedto lead to the discovery ofadmissible evidence. 49 C.F.R. part 9, and 14 C.F.R, §13.227 prohibitemployees ofthe FAA from giving expert or opinion testimony for anyparty other than the FAA in any proceeding governed by 14 C:F.R subpart

## a". Respondents have soughtto compel testimony from Mr. Meisberger concerning his opinions regarding the subject enforcement action. 

### Mr. Me.lsberger and Mr. Wade have notbeen listed as witnesses for the government inthis 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 ofthis matter, there isno possibility that any oftheir opinions could possible lead to the discovery ofany admissible evidence. The opinions ofthese

'Withrespect to Comm. to Brige the Gap, and, Nw. Envtl, Def C/1'. V. U.S. ForestServ., 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 !)lldmagistrate 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 instantmatter, 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 ofagency counsel. Cornplainant1s Response to Regpondent's Motion to Compel**Al~ska** Airlines -FDMS No. FAA-201 3-0287 Page 4 of7 RoaERT SPITZER, FAAATIORNJ<Y TEJ.: (425) 227·1417; PAX (4·:25) 227-100708/19/2013 09:22 4252271007 ANM7 PAGE 05/10

individuals, are simply opinions oftwo employees ofthe FAA, and discovering an individual's opinion about the merits ofan underlying case cannot lead to the discovery ofany additional, admissible evidence, Tellingly, Alaska makes no argument 

### as to how obtaining the opinions oftwo Agency employees could possibly lead to the discovery ofadmissible evidence.

While the Respondents do notbi.de the fact that they wish to use the opinions ofMr. 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, adiligent respondent could locate an i.ndividual -within. the agency who did notbelieve that such an action 

### wasjustified. However, the opinions ofindividuals who work for the agency, and have notbeen identified as experts to testify on behalfofthe agency, are irrelevant and may not be admitted into evidence. 14 C.F

### .R. §13 .227 envisions this scenario, and accordingly prohibits employees ofth.e FAA from giving opinion testimony against the FAA, and similarly prohibits employees ofa 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 bejust as inappropriate as the request currently pending in this Motion to Compel.

OtherDiscovery Requests

The Respondents have also soughtto compel "all correspondeJ)ce, including e-mails, any employee has sentto or received from John Elgee regarding this action orthe allegations 

### in the complaint." While the Respondents accurately quote the first portion ofthe 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 thereleasableportion ofthe EIR. Any communications made by the Agency's attorneys with 

### Mr. Elgee (a non-party witness) are protected under the attorney work-productprivilege, or are of sucha mundane nature so as to render them irrelevant.

The Respondents have also requested an expertreport from the Agency's icing expert witness in this matter, TI)omas Bond. TI1e Respondents have beenprovided withthe extent ofnon"privileged communlcations with the expert in this case, which consist ofemail communications made by the CMO with the expert, Thomas Bond. The Respondents are welcome to depose 

### Mr. Bondto further ascertain the grounds for his opinion. However, to date, the FAAhas not received aNotice of Deposition for 

### Mr. Bond from the Respondents.·

With respect to the Respondent's outstanding discovery requests, while these discoveryrequests are not yetdue, 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 therequest 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 underthe deliberative process privilege.
Complainant:s Response to Respondent's Motion to Compel Alaska Airlines- FDMS No. FAA-2013-0287 Page 5of7 ROBERT SPITZER, FAA ATTORNEY TEL: (425) 227-1417; FAX (4:25) 227-100708/19/2013 09:22 4252271007 ANM7 PAGE 07/10

Aggravating or mitigating factors consideredby the FAA inspectors and the contents ofthe 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 withinthese inspectors' files when it

. supplied the Respondent withthe re!easai;>Je portions ofthe 

### EIR. Any additional material contained wi,thln these inspector's files would only be the notes; memos, and othermemoranda which contain the impressions, theories, and opinions ofthese inspectors. Like tl1e redactedportions .ofthe 

### EIR, and the pre-initiation conversations ofthese inspectors described above, any contents ofthe flles of these individuals which have notbeen previously supplied are privileged Wlder the deliberative process. Likewis(l, the aggravating or mitigating factors wbich inspectors identified inthis 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 ofthe back-and-forth communications which 

### FAA employees had when deciding to proceed with this case, which was ultimately relied upon by the FAAwhen deciding when deciding to issue this case. As such, these factors are protected under the deliberative process privilege.
Acc()rdingly, except withrespectto the items which the FAA 

### has specifically agreed to provide in this reply, the 

### FAArespectfullyrequests thatthe Honorable Administrative LawJudge deny the Respondent's Motion to Compel.
Respectfully submitted this 19tl' day ofAugust2013.


### DWIGHT WILLIAMS Regional Counsel

By:
Robert Spitzer Attorney Office ofthe 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) 227-100708/19/2013 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 ofHearings United 

### States Department ofTransportation 1200 

### New Jersey Avenue, S.E. 

### Washington, D.C. 20590 

### Fax: 202-366-7536


### Federal AviationAdministration ATTN: Hearing Docket Clerk Wilbur WrightBuilding Washington, D.C. 20591 

### hx: 202-493-5142


### William V. 

### O'Connor Morrison & 

### Foerster, LLP 

### 12531 High BluffDrive San Diego, CA 921 30-2040 

### Fax: 858-720-5125 

### Jeremy Ross SeniorAttorney AlaskaAirlines, lnc. P.O. 

### Box 68900- SEAZL 

### Seattle, WA 98166 

### Fax: 206-39 -5468
•.



## Te iKirk /



### 0 1ce 

### ofRegional Counsel**(ANM~7)** 

### Federal Aviation Administration 1601 

### LindAve. 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, FAA.ATTORNEY TEL: (425) 22H417; FAX: (425) 227-1007 Page 7of708/19/2013 09:22 4252271007 ANM7

UNITED STATES OF ;\MERICA DEPARTMENT OF TRANSPORTATIOI\' OFFICE OF HEARlNOS

WASIHNGTON. D.C.

Michacl J J·hlcrtn, Aclministmtor Fcdcml Av'ration Administration: C'ompll·>il\lillt.**Ala~k<l** Airlines:**Rcspond~nt.** vs, FA.A. Case Number: 20IINM0200 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 ofthe 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 ofthe**;~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:; ofJoel Wadll described in the declaration ofJim 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 

## orthe F;\A_

7. I dedare the alwve under penalty ofpc1:jury.**n~·cl:lw1ilH1** ,)rJ1HII Ll;;ll.;cr**Ak1:.;kn1\irlb~..:s- [II)J'YI~**  N11.**FAA<Z01~~(1~~7 Pug~.:**  1 ()f'2 PAGE 09/1008/19/2013 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 ANM7 PAGE 10/10

# ~ltr)r-s 

# x

___L

...**~**

# ....____, ____ Date