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 

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Docket No. FAA-2013-0290 

. Case No. 2012EA680047 

ORDER GRANTING PROTECTIVE RELIEF AND 

DIRECTING PROCEDURAL COMPLIANCE 

On January 16,2014, an Order Granting Partial Judgment on the Agreed Part of Case 

was filed. 

On May 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 objection to 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's date, 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 of the Respondent's Supplemental 

Discovery Requests as untimely. The FAA asserts that it should not need answer on the grounds 

of untimeliness, 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 such propounded discovery. It has termed this request for relief an "objection" 

and then asks that its objection be "sustained". This is an inferred motion for protective relief, 

and will be referred to hereinafter as the FAA's "Motion." 
B) The FAA's Motion Contains an Erroneous Jurisdictional Caption 

The jurisdictional caption in the FAA's Motion reads as follows: 

(Bold added) 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION AI)MINISTRA TION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

This is incorrect. The words "Federal Aviation Administration" shouldnot be in the 

jurisdictional caption. This case has been assigned to the Office of Hearings for formal 

adjudication of the parties' dispute. The Office of Hearings is not a part of the Federal Aviation 

Administration ("FAA"). Rather, the Office of Hearings is part of the Office of the Secretary for 

the U.S. Department of Transportation. The Judges who serve in the Office of Hearings are not 

FAA employees. The attorney staff and clerical staff who assist the Judges in the Office of 

Hearings are not FAA employees. While there is no doubt that the FAA is an agency within the 

U.S. Department of Transportation, it should be clearly understood that the FAA is a party to 

these proceedings, and that jurisdiction for adjudicating this case has been assigned to the Office 

of Hearings, which is independent from the FAA. The FAA's erroneous jurisdictional 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). It has resulted in 

respondent litigants forming the mistaken belief that the Office of Hearings is neither impartial 

nor independent. The formation of this mistaken belief, based on the FAA's submissions, deeply 

harms the integrity of these proceedings. This is not in the public interest, and improper 

assertions of jurisdictional authority by the FAA should be scrupulously avoided. The FAA's 

erroneous jurisdictional caption should be immediately corrected for all future filings in this, and 

any other cases, in which the FAA appears before the Office of Hearings for adjudication. 

C) FAA's Motion Erroneously Identifies the FAA Administrator as the Complainant 

The FAA Motion identifies the Complainant as "Michael P. Huerta, Administrator of the 

Federal Aviation Administration." (Motion, 1.) This is an error. The Complainant in this case is 

not the FAA Administrator, rather it is the FAA's agency attorney, as defined under 14 C.P.R. § 

13.202. 

Thus, pursuant to 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 a Notice of 

Appearance under Mr. Johnson, Jr.'s authority as regional counsel (Notice, 1 ). 

Page 2 of 5 
Mr. Huerta, the FAA Administrator, is not the complainant. Pursuant to 5 U.S.C. § 554 

and 14 C.P.R. § 13.203, Mr. Huerta is prohibited from acting as a complainant or prosecutor in 

these proceedings. The statutes and regulations create this bright line boundary between the 

regional counsel and the FAA Administrator, so that the FAA Administrator may properly act as 

an appellate decision maker. This separation of function presumptively allows the parties to 

confidently seek thoughtful appellate review of judicial decisions first with the FAA 

Administrator before considering any further appeal with the U.S. Court of Appeals. See, 14 

C.P.R.§§ 13.233, 13.234, & 13.235. 

To assert that the FAA Administrator is the complainant is erroneous, and may easily 

result in respondent litigants forming the mistaken belief that appellate review with the 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. Brief Discussion and Analysis of the FAA's Motion 

As noted earlier, the FAA objects to the Respondent's Supplemental Discovery Request 

as untimely, and requests that its objection be "sustained." (Motion, 1.) 

As an initial matter, a responding party who objects to an interrogatory or a portion 

thereof has two options: 1) respond to the interrogatory by stating with specificity the grounds 

for the objection, 14 C.P.R. § 13.220(k); Fed. R. Civ. P. 33(b); or in 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 

emphasized that the movant must object in a timely and specific manner, or such objection(s) 

will be deemed waived. Steven Baicker-McKee, et.al, Federal Civil Rules Handbook)(Rule 33, 

Failure to Object is Waiver), West Publishing (2012). 

Under the first option, the party propounding the interrogatory receives the objection, 

reviews it, and if unsatisfied, 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). 

Under the second option, the party making the objection files a motion for protective 

relief. In making this motion, the party asserting the objection should demonstrate that it made a 

timely and proper objection, and that the interrogatory was improper. Steven Baicker-McKee, 

et.al, Federal Civil Rules Handbook)(Rule 33, Objections), West Publishing (2012). The moving 

party must show that a protective order is "necessary" to protect the party from "annoyance, 

embarrassment, oppression, or undue burden or expense." 14 C.F.R. § 13.220(h). It is 

noteworthy that the language in 14 C.P.R. § 13.220(h) is almost identical to that contained in 

Fed. R. Civ. P. 26(c)(l). Both rules identify the most common objections by a movant seeking a 

protective order, and codifies well-established litigation practice. See, Steven Baicker-McKee, 

et.al, Federal Civil Rules Handbook)(Rule 33, Objections), West Publishing (2012). 

Page 3 of 5 
In the instant case, the FAA has utilized the first option- an objection, but it has also 

simultaneously utilized the alternative second option by filing its objection with the court, and 

asking for protective relief. (Motion, 1 ). In support of its Motion, the FAA appears to assert both 

general annoyance and a right of reliance on the court's litigation order, on the grounds that it 

should not be required to respond to interrogatories untimely served, in violation of the court's 

scheduled deadlines. 

The record demonstrates that the 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 a receiving party to serve all answers to any supplemental discovery 

requests (which had been served on or before March 21, 2014). (Jd. at 2 ~9). 

It appears undisputed that the Respondent did not serve the FAA with any Supplemental 

Discovery on or before March 21, 2014. Instead, the Respondent waited until April 24, 2014, 

one day before the ciosure of all discovery exchange, to serve its' requests upon the FAA, viaemail to the FAA attorney of record. (Motion, Exh. 3.) Shortly thereafter, on May 1, 2014, the 

Respondent filed a paper copy of its untimely Supplemental Discovery Requests with the Office 

ofHearings, reflecting a service date of April25, 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 of only one ( 1) day to answer all discovery 

inquiry. The Respondent has not shown-nor attempted to show-any good cause for the 

untimeliness of its 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 met privately, 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 participation by both parties in the scheduling. The 

deadlines were set so that both the 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 sufficient time to complete one phase· 

of the 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 in this 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 of the Respondent to comply with the court-ordered discovery schedule has 

created for the complying party, the FAA, the type of annoyance and undue burden contemplated 

by 14 C.P.R. § 13.220(h). Absent a showing of good cause by the Respondent for its failure to 

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comply with the discovery deadlines contained in the court's October 30, 2013 Order, there is no 

basis to require the FAA to answer the Respondent's untimely discovery requests. 

III. Conclusion 

Based on the foregoing and pursuant to 14 C.F.R. §§ 13.205 and 13.220(h), and after 

reviewing all relevant caselaw, regulations, statutory authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The FAA's o~jection to the Respondent's Supplemental Discovery Request is deemed a 

Motion for Protective Relief. 

2. The FAA's Motion for Protective Relief is granted. The FAA need not answer the 

Respondent's April24, 2014 Supplemental Discovery Requests. 

3. The FAA shall utilize the proper jurisdictional 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 proper reference to the FAA's complainant, as represented by 

its Regional Counsel, as the party in this proceeding. 

5. The remaining 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 of 5 
SERVICE 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 2Wl 0001 

Mr. Jose L. Nieves 

Complainant's Counsel 

Federal Aviation Administration 

ONE COPY 

Office of the Regional Counsel, Eastern Region 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: 718-553-3278 

FAX: 718-995-5699 

Mr. W. Ashley Smith, Jr. 

Respondent's Lay Representative 

Jet Logistics, Inc. 

5400 Airport Drive 

Charlotte, NC 28208 . 

TEL: 919-840-0555 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

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 by U.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-Suite 2WIOOO, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.