## SERVED: May 29, 2014
U.S. DEPARTMENT OF TRANSPORTATION

.OFFICE OF HEARINGS

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In The Matter Of: JET LOGISTICS, INC. Respondent WASHINGTON, DC ) ) ) ) ) DocketNo. FAA-2013-0290

.CaseNo. 2012EA680047

ORDER GRANTING PROTECTIVE RELIEF AND DIRECTING PROCEDURAL COMPLIANCE
On January 16,2014, an Order Granting Partial Judgment on the Agreed Part ofCase was filed. OnMay 2, 2014, the Federal Aviation Administration ("FAA") filed the Agency's Response to Respondent's Supplemental Discovery Request ("Response"). This appears to be both a specific objectionto the propounded supplemental discovery requests, as well as an inferred motion for relief. As ofMay 19,2014,the due date ofthe Respondent's response, the Respondent had not filed a response. As oftoday'sdate, May 29, 2014, the Respondent has not filed a response.



### I. Procedural Matters A) FAA's Response Deemed an Inferred Motion In its Response, the FAA objects to the entirety ofthe Respondent's Supplemental Discovery Requests as untimely. The FAA asserts that it should not need answer on the grounds ofuntimeliness, because the requests were served after the deadlines provided in the October 30, 2013 Order Setting Litigation Dates and Procedures. The FAA seeks to be excused from responding from suchpropounded discovery. It has termed this request for reliefan "objection" and then asks that its objectionbe "sustained". This is an inferred motion for protective relief, and will be referredto hereinafter as the FAA's "Motion."B) The FAA's Motion Contains an Erroneous Jurisdictional Caption Thejurisdictional caption in the FAA'sMotion reads as follows:

(Bold added) U.S. DEPARTMENT OF TRANSPORTATION FEDERALAVIATION AI)MINISTRATION OFFICE OF HEARINGS

WASHINGTON, D.C.

This is incorrect. The words "Federal Aviation Administration" shouldnotbe in the jurisdictional caption. This case has been assigned to the Office ofHearings for formal adjudication ofthe parties' dispute. The Office ofHearings is not apart ofthe Federal Aviation Administration ("FAA"). Rather, the Office ofHearings is part ofthe Office ofthe Secretaryfor the U.S. Department ofTransportation. The Judges who serve inthe Office ofHearings are not FAA employees. The attorney staffand clerical staffwho assist the Judges in the Office of Hearings are not FAA employees. While there is no doubtthatthe FAA is an agency withinthe U.S. Department ofTransportation, it shouldbe clearly understood that the FAA is a party to these proceedings, and thatjurisdiction for adjudicating this case has been assigned to the Office ofHearings, which is independent from the FAA. The FAA's erroneousjurisdictional caption has occurred previously in other recent FAA cases (See, e.g., 

### In re Endless MountainsAir, Inc., FAA-2013-0848, at 2 (Order Setting Motion Deadlines, Mar. 18, 2014). 

### Ithas resulted in respondent litigants forming the mistaken beliefthat the Office ofHearings is neither impartial nor independent. The formation ofthis mistaken belief, based on the FAA's submissions, deeply harms the integrity ofthese proceedings. This is not inthe public interest, and improper assertions of jurisdictional authority bythe FAA should be scrupulously avoided. The FAA's erroneousjurisdictional caption should be immediately corrected for all future filings in this, and any other cases, in which the FAA appears before the Office ofHearings for adjudication. C) FAA'sMotion Erroneously Identifies the FAA Administrator as the Complainant The FAA Motion identifies the Complainant as "Michael P. Huerta, Administrator ofthe Federal Aviation Administration." (Motion, 1.) This is an error. The Complainant inthis case is not the FAA Administrator, rather itis the FAA's agency attorney, as defined under 14 C.P.R. 

### § 13.202.Thus, pursuantto 14 C.F.R. § 13.202 and the record in this case, the complainant, or prosecuting party herein, is the FAA's Regional Counsel, Alfred R. Johnson, Jr. The record demonstrates that the Complaint was filed by FAA attorney, Mr. Jose L. Nieves, under Mr. Johnson, Jr.'s authority as regional counsel (Complaint, 8). Mr. Nieves also filed aNotice of Appearance under Mr. Johnson, Jr.'s authority as regional counsel (Notice, 1 ).

Page 2 of5Mr. Huerta, the FAAAdministrator, is notthe complainant. Pursuantto 5 U.S.C. § 554 and 14 C.P.R. § 13.203, Mr. Huertais prohibited from acting as a complainant orprosecutor in these proceedings. The statutes andregulations create this bright line boundarybetweenthe regional counsel andthe FAAAdministrator, so thatthe FAA Administratormayproperly act as an appellate decision maker. This separation offunction presumptively allows the parties to confidently seekthoughtful appellate review of judicial decisions first with the FAA Administratorbefore considering any further appeal with the U.S. Court ofAppeals. See, 14 C.P.R.§§ 13.233, 13.234, & 13.235. To assert thatthe FAA Administrator is the complainant is erroneous, and may easily result inrespondent litigants forming the mistaken beliefthat appellate reviewwiththe FAA Administrator is a meaningless, foregone conclusion. To avoid such error, all future documents should correctly identify the agency counsel who files the Complaint as the FAA complainant. II. BriefDiscussion and Analysis ofthe FAA's Motion As noted earlier, the FAA objects to the Respondent's Supplemental Discovery Request as untimely, and requests that its objectionbe "sustained." (Motion, 1.) As an initial matter, a responding party who objects to an interrogatory or a portion thereofhas two options: 1) respond to the interrogatory by stating with specificitythe grounds for the objection, 14 C.P.R. § 13.220(k); Fed. R. Civ. P. 33(b); orin the alternative, 2) file a motion for relief. 14 C.P.R. §§ 13.218 and 13.220(h); Fed. R. Civ. P. 26(c). It should be emphasizedthatthe movantmust objectina timely and specific manner, or such objection(s) will be deemed waived. StevenBaicker-McKee, et.al, Federal Civil Rules Handbook)(Rule 33, Failure to Objectis Waiver), WestPublishing (2012). Underthe first option, the party propoundingthe interrogatory receives the objection, reviews it, and ifunsatisfied, may renew its request, change its request, or file a motion to compel. 14 C.P.R. § 13.220(m); Fed. R. Civ. P. 37(a). Underthe second option, the party making the objection files a motion for protective relief. In makingthis motion, the party asserting the objection should demonstrate that it made a timely and properobjection, andthatthe interrogatory was improper. Steven Baicker-McKee, et.al, Federal CivilRules Handbook)(Rule 33, Objections), West Publishing (2012). The moving party must showthat a protective order is "necessary" toprotectthe party from "annoyance, embarrassment, oppression, orundueburden orexpense." 14 C.F.R. § 13.220(h). Itis noteworthythatthe language in 14 C.P.R. § 13.220(h) is almost identical to that contained in Fed. R. Civ. P. 26(c)(l). Bothrules identify the most common objections by a movant seeking a protective order, and codifies well-established litigationpractice. See, Steven Baicker-McKee, et.al, Federal Civil Rules Handbook)(Rule 33, Objections), West Publishing (2012).

Page 3 of5In the instant case, the FAA has utilized the first option- an objection, but it has also simultaneouslyutilized the alternative second optionby filing its objection with the court, and asking for protective relief. (Motion, 1 ). In support ofits Motion, the FAA appears to assert both general annoyance and a right ofreliance on the court's litigation order, on the grounds that it should not be required to respond to interrogatories untimely served, in violation ofthe court's scheduleddeadlines. The record demonstrates thatthe October 30, 2013 Order Setting Litigation Dates and Procedures clearly established March 21, 2014 as the deadline for both parties to serve all supplemental discovery requests. (Oct. 30, 2013 Order, at 2**~8).** The Order also set April 25, 2014 as the deadline for areceiving party to serve all answers to any supplemental discovery requests (whichhadbeen served on or before March 21, 2014). (Jd. at 2**~9).** Itappears undisputed that the Respondent did not serve the FAA with any Supplemental Discovery on orbefore March 21, 2014. Instead, the Respondent waited until April 24, 2014, one day before the ciosure ofall discovery exchange, to serve its' requests upon the FAA, viaemail to the FAA attorney ofrecord. (Motion, Exh. 3.) Shortly thereafter, on May 1, 2014, the Respondent filed a paper copy ofits untimely Supplemental Discovery Requests with the Office ofHearings, reflecting a service date ofApril25, 2014, the date that discovery closed. (R.'s Supp. Disc., 5.) Thus, the Respondent's Supplemental Discovery was served approximately thirty-four (34) days late. This left the FAA with a maximum ofonly one (1) day to answer all discovery inquiry. The Respondenthas not shown-norattempted to show-any good cause for the untimeliness ofits Supplemental Discovery Requests, nor for its failure to comply with the discovery deadlines clearly set out in the court's October 30,2013 Order. The October 30, 2013 Order was issued only after the parties had metprivately, filed a September 23,2013 Proposed Scheduling and Discovery Plan, and then convened formally with the court for a Litigation Scheduling Conference to discuss litigation planning. The October 30, 2013 Order set discovery deadlines after full participationby bothparties in the scheduling. The deadlines were set so thatboththe court and the parties could manage the various phases of litigation smoothly, and in an efficient and timely matter. The court-ordered deadlines incorporated the parties' schedules, and allowed the parties sufficienttime to complete one phase· ofthe litigation process (i.e. discovery) in order to move into the next phase (i.e. dispositive motions and hearing preparation), before appearing for the hearing itself. The hearing inthis case is currently estimated for three (3) days, and scheduled to begin two months from now, on July 29,2014 (Oct. 30,2013 Order, at 3**~14).** Based on the record herein, the failure ofthe Respondent to comply with the court-ordered discovery schedule has created for the complyingparty, the FAA, the type ofannoyance and undue burden contemplated by 14 C.P.R. § 13.220(h). Absent a showing ofgood cause by the Respondent for its failure to Page 4 of5comply with the discovery deadlines contained inthe court's October 30, 2013 Order, there is no basis to requirethe FAA to answer the Respondent's untimely discovery requests. 

### III. Conclusion Based onthe foregoing and pursuantto 14 C.F.R. §§ 13.205 and 13.220(h), and after reviewing all relevant caselaw, regulations, statutory authority, and being fully advised;



### ITIS HEREBY ORDERED: 1. The FAA's**o~jection** to the Respondent's SupplementalDiscovery Request is deemed a Motion for Protective Relief. 2. The FAA's Motion for Protective Reliefis granted. The FAA need not answer the Respondent's April24, 2014 Supplemental Discovery Requests. 3. The FAA shall utilize the properjurisdictional caption when filing documents in this proceeding. The correct caption is as follows: U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC 4. The FAA shall utilize the properreference to the FAA's complainant, as represented by its Regional Counsel, as the party in this proceeding. 5. Theremaining litigation deadlines and dates contained in the October 30, 2013 Order Setting Litigation and Dates and Procedures are reconfirmed. 6. The hearing set for July 29-31,2014, in Charlotte, North Carolina is reconfirmed.

Attachment: Service List

Page 5 of5SERVICE LIST- BY U.S. MAIL

Federal Aviation Administration 800 Independence Avenue, S.W

.. Washington, DC 20591 ORIGINAL & ONE COPY

Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2Wl000 1

Mr. Jose 

### L. Nieves Complainant's Counsel Federal Aviation Administration ONE COPY

Office ofthe Regional Counsel, Eastern Region 1Aviation Plaza Jamaica, NY 11434 TEL: 718-553-3278 FAX: 718-995-5699 Mr. W. Ashley Smith, Jr. Respondent'sLayRepresentative Jet Logistics, Inc. 5400 AirportDrive Charlotte, NC 28208

. TEL: 919-840-0555 Judge J.E. Sullivan US. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL:**202~366-6941** FAX: 202-366-7536 FDMS No. FAA-2013-0290 (Civil Penalty Action)

1 Service was byU.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.