465 California Street Suite 210 

## • San Francisco California 94104 

## • (415) 421-2500 Fax (415) 421-2560

www.avialcx.com law@avialex.com 

### Michael 

### L. Dworkin and Associates 

# RECEIVED Law Offices
(VIAFEDEX}



### FederalAviation Administration Attn: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2W1000 800 Independence Avenue SW Washington, DC 20591
RE: MartinaireAviation, LLC 

### FAA Case No. 2011SW700189 FDMS No. FAA-2013-0040



### Dear Hearing Docket Clerk: 

## APR 

## 2 52013 

# HEARING OOCKET April12, 2013

Enclosed herewith for filing are an original and one copyofthe Response to Complainant's Motion for Protective Order filed on behalfofthe Respondent, Martinaire Aviation, LLC. Should you have any questions or concerns, please do nothesitate to contactme.

cc: The Honorable Richard C. Goodwin Administrative Lawjudge, Office ofHearings, M-20 james Archier, Esq. FAA,ASW-7 Verytrulyyours,

Caitlin M. Miller Legal AssistantMICHAEL L. DWORKIN #64047 MICHAEL L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 SanFrancisco, California 94104 Telephone: (415) 421-02500 Facsimile: (415) 421-2560 Email: law@avialex.com Attorneys for MARTINAIRE AVIATION, LLC 

# RECE\VED APR 252013 

# HEARING DOCKET

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. In the Matter of:

MARTINAIRE AVIATION, LLC FAA Case No. 2011SW700189 FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE TO COMPLAINANT'S MOTION FORPROTECTIVE ORDER Judge: Honorable Richard C. Goodwin

Pursuant to Rule 13.218(d) ofthe Rules ofPractice (14 CFR § 13.218(d)), Martinaire Aviation, LLC ("Martinaire"), by andthrough its undersigned counsel, hereby responds and objects to Complainant's Motion for Protective Order dated April4, 2013, and as grounds therefor states: 1. Complainant seeks a Protective Order, in its ownwords, "to prevent discovery into matters involving how the agency (i.e., Complainant) arrived at its civil penalty of$206,500.00". 1
2. As authority for its Motion, Complainant cites Rule 26(c)(l)(D) ofthe Federal Rules of Civil Procedure, interspersed with oblique references to case law arising under the Freedom oflnformationAct (5 U.S.C. Sec. 

### 552i 3, asserting that its computation of sanction comes within the deliberative process privilege. 3. Ithas long beenwell established thatthe Federal Rules ofCivil Procedure do not apply
across the board to these proceedings.4 Accordingly, Complainant's reliance upon FRCP Rule 26 is misplaced. However, even ifthe provisions ofthe FRCP were considered as guidance in the conduct ofthese proceedings, Complainant's motion must fail under the lawthathas evolved construing the FRCP.
1 Presumably, Complainant wants to keep this secret-notonly beyond Martinaire's inquiry, but the Court's as well.
2 Complainant ironically cites Department of the Interior andBureau of IndianAffairs v. Klamath Water Users ProtectiveAssociation, 532 U.S. l, 121 S.Ct. 1060, 149 L.Ed. 2d 87 (2001) in which the Supreme Court of the United States, in a unanimous opinion, concluded that there was no exemption under the Freedom ofInformation Act (FOIA) that would have prevented the release ofthe requested documents. 3 It should also be noted that FOIA exemptions are not discovery privileges. A document exempt from discovery under FOIA may still be available under normal discovery procedures. See NLRB v. Robbins Tire & Rubber Co., 437 U.S. 214,242, 98 S.Ct. 2311,2327 (1978) and Mezu v. Morgan State Univ., 269 FRD 565,576 (D. Md. 2010). Moreover, in withholding documents under FOIA, the burden is on the government, requiring it to submit detailed public affidavits identifying the documents withheld and the FOIA exemptions claimed, and providing a particularized explanation ofwhy each document falls within the claimed exemption. Vaughn v. Rosen, 484 F.2d 820, 823-825 (DC Cir. 1973) and Lion Raisins v. UnitedStates Department of Agriculture, 354 F.3d 1072, 1082 (9th Cir. 2004). 4 There is nothing in the Rules ofPractice in FAA Civil Penalty Actions that incorporates the provisions of the FRCP. While FAR Sec. 13.53 (14 C.P.R. Sec. 13.53) provides that depositions inFAAHearings are to be conducted in accordance with FRCP 26, the procedural rules in FAA Hearings to not apply to proceedings such as this which are governed by Part 13, Subpart G. The only reference to the FRCP in Subpart G is Rule 13.220Q) which states that in foreign countries, a party shall take a deposition in any manner allowed by the FRCP. The instant depositions are noticed for Texas, the 28th State to have been admitted to the United States. While the recently-enacted Pilots Bill ofRights (P.L. 112-153) extends applicability ofthe FRCP to certain enforcement proceedings before the National Transportation Safety Board conducted under 49 C.P.R. Part 821, that legislation does not apply to civil penalty actions conducted under Part 13, Subpart G. FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAlRE AVIATION, LLC'S RESPONSE TO COMPLAINANT'S MOTION FORPROTECTIVE ORDER 24. Complainanthas not satisfied the requirements for invocation ofthe deliberative process privilege. Invocation ofthis privilege is a three-step process and the burden is on Complainantto showthatthe privilege protects the documents that it seeks to withhold from discovery, Walsky Constr. Co. v. UnitedStates, 20 Ct. Cl. 317, 320 (1990). First, to invoke theprivilege, Complainant (throughthe agency head orby one to whom such authority has been delegated) must assert the privilege in an affidavit. See Marriott Int 'l Resorts, L.P. v. UnitedStates, 437 F. 3d 1302, 1308 (Fed. Cir. 2006). This, Complainant has notdone. Second, the officer invoking the privilege must "state withparticularity what informationis subjectto the privilege", Walsky at 320. This Complainanthas not done. Third, Complainant mustprovide the Court withprecise and certainreasons for maintaining the confidentiality ofthe information. Other thanits generalized, unsubstantiated claims that "respondentwill breachthe deliberative process privileges of Complainant", andthat the proverbial sky will fall, Complainanthas not done this either. 5. The depositions ofComplainant's mostknowledgeable persons concerning the manner in which the civil penalty was computed is fully within the scope ofdiscovery setforth in Rule 13.220(e) (14 C.F.R. Sec. 13.220(e)). Itis particularlytelling thatin seeking the protective order, Complainanthas not sought to limit discovery under Rule 13.220(f), (g)
or (h) (14 C.F.R. Sec. 13.220(f), (g) or (h)) which are the exclusive means oflimiting discovery in civil penalty proceedings. As Rule 13.220(h) provides, a protective order may be issued to protect a party from annoyance, embarrassment, oppression orundue burden or expense. Otherthan alluding to these "horribles", Complainanthas not provided any specific evidence or made any showing that it would suffer annoyance, FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE TO COMPLAINANT'S MOTION FORPROTECTIVE ORDER 3embarrassment, oppression orundue burden or expense. 6. While Complainant states that it has already providedMartinaire withthe releasable portions ofits EIR (Motion, Paragraph 8), and has attached the EIRas Exhibit D, that Exhibit contains some 45-plus pages ofredactions, including redactions presumably concerning howthe proposed civil penalty in this matter was computed. This is hardly the full disclosure contemplated under the Rules (or for that matter, the FRCP, assuming that they were infact applicable). 7. Complainanthas promulgated sanction guidance inhazardous materials enforcement matters in its Compliance andEriforcementHandbook, FAA Order 2150.3B, Appendix C. Sanction Guidance Hazardous Materials Enforcement. 5
8. Underthe above-referenced Sanction Guidance, sanctions for the type ofviolation that Complainant has alleged range from $5,000 to $16,200 for a Group I or II carrier and $1,000-$5,000 for a Group III orIV carrier. The proposed $206,500 civil penalty for 12 allegedly deficientnotices to pilotin command (NOPC's) (or $17,212.50 perNOPC) exceeds the maximum suggested penalties, especially when considering that during the applicable period oftime Martinaire generated some 500-600 NOPC'sthat were found to be fully compliant. Even ifthe alleged irregularities concerning the 12 NOPC's canbe proved, this only amounts to a 2-2.4 percent margin oferror. In other words, 97.6 to 98 percent ofthe NOPC's were in full compliance. Considering the thousands ofpackages

5 In the interests ofeconomy, Appendix C has not been duplicated and attached, as it is assumed thatthe Court and Complainant's counsel are already familiar with that document. However, ifthis is not the case, Respondent would be happy to provide a copy to the Court and Complainant's counsel. FAA Case No. 20USW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE TO COMPLAINANT'S MOTION FORPROTECTIVE ORDER 4that Martinaire transports inthe course ofa year, this proposedpenalty is highly disproportionate. 9. This gross disproportion betweenthe Sanction Guidance tables and the sanction sought in this matter, absent any evidence ofhow Complainant arrived at said amount, suggests that there is no basis for the amount sought. 10. Martinaire is a small business. Ithas fewer than 100 employees. It's fleet consists of39 relatively small aircraft, Beech 1900's and Cessna 208's. Ofthe 39 aircraft, 24 are owned, the remainder are leased. Forthe above statedreasons, Martinaire respectfully requests that the Administrative Law Judge deny Complainant's Motionfor Protective Order which wouldpreclude Complainant from producing witnesses at deposition, and would preclude testimony or other evidence as to how Complainant arrived atits $206,500 civil penalty.

Respectfully submitted, Dated this 12th day ofApril, 2013. MICHAEL L. DWOR AS IATES
Mtchael L. Dworkin Attorneys for MARTINAIREAVIATION, LLC

FAA CaseNo. 2011SW700189/FDMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S RESPONSE TO COMPLAINANT'S MOTION FORPROTECTIVE ORDER 5CERTIFICATE OF SERVICE The undersigned hereby certifies that onthis 12th day ofApril, 2013, a true and correct copy ofthe foregoing MARTINAIRE AVIATION, LLC'S RESPONSE TO COMPLAINANT'S MOTION FORPROTECTIVE ORDERwas served as follows: Federal Aviation Administration Attn: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 800 Independence Avenue SW Washington, DC 20591 (Original plus one copy) {Federal Express} The Honorable Richard C. Goodwin Administrative Law Judge Office ofHearings, M-20 Department ofTransportation 1200NewJersey Avenue, S.W. Washington, DC 20590 FAX: 1-202-366-7536 {FAXandFederal Express} James Archier, Esq. Federal Aviation Administration Office ofthe Regional Counsel Southwest Region, ASW-7 2601 Meacham Boulevard, Suite 6E Fort Worth, TX 76137 FAX: 1-817-222-5092 {FAXandFederalExpress}

Caitlin M. Miller

FAA Case No. 2011SW700189/FDMS No. FAA-2013-0040 MARTlNAIRE AVIATION, LLC'S RESPONSE TO COMPLAINANT'S MOTION FOR PROTECTIVE ORDER 6