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} 

Federal Aviation Administration 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 

800 Independence Avenue SW 

Washington, DC 20591 

RE: Martinaire Aviation, LLC 

FAA Case No. 2011SW700189 

FDMS No. FAA-2013-0040 

Dear Hearing Docket Clerk: 

APR 2 5 2013 

HEARING OOCKET 

April12, 2013 

Enclosed herewith for filing are an original and one copy of the 

Response to Complainant's Motion for Protective Order filed on behalf of the 

Respondent, Martinaire Aviation, LLC. Should you have any questions or 

concerns, please do not hesitate to contact me. 

cc: The Honorable Richard C. Goodwin 

Administrative Law judge, 

Office of Hearings, M-20 

james Archier, Esq. 

FAA,ASW-7 

Very truly yours, 

Caitlin M. Miller 

Legal Assistant 
MICHAEL L. DWORKIN #64047 

MICHAEL L. DWORKIN and ASSOCIATES 

465 California Street, Suite 21 0 

San Francisco, California 94104 

Telephone: (415) 421-02500 

Facsimile: (415) 421-2560 

Email: law@avialex.com 

Attorneys for MARTINAIRE AVIATION, LLC 

RECE\VED 

APR 2 5 2013 

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 FOR PROTECTIVE ORDER 

Judge: Honorable Richard C. Goodwin 

Pursuant to Rule 13.218(d) of the Rules of Practice (14 CFR § 13.218(d)), Martinaire 

Aviation, LLC ("Martinaire"), by and through 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 own words, "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) of the Federal Rules of 

Civil Procedure, interspersed with oblique references to case law arising under the 

Freedom oflnformation Act (5 U.S.C. Sec. 552i 3

, asserting that its computation of 

sanction comes within the deliberative process privilege. 

3. It has long been well established that the Federal Rules of Civil 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 of the FRCP were considered as 

guidance in the conduct of these proceedings, Complainant's motion must fail under the 

law that has evolved construing the FRCP. 

1 Presumably, Complainant wants to keep this secret-not only beyond Martinaire's inquiry, but the 

Court's as well. 

2 Complainant ironically cites Department of the Interior and Bureau of Indian Affairs v. Klamath Water 

Users Protective Association, 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 of Information 

Act (FOIA) that would have prevented the release of the 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 of why each document falls within the claimed exemption. Vaughn v. Rosen, 

484 F.2d 820, 823-825 (DC Cir. 1973) and Lion Raisins v. United States Department of Agriculture, 354 F.3d 1072, 

1082 (9th Cir. 2004). 

4 There is nothing in the Rules of Practice 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 in FAA Hearings 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 of Rights (P.L. 112-153) extends applicability of the 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 

FOR PROTECTIVE ORDER 

2 
4. Complainant has not satisfied the requirements for invocation of the deliberative process 

privilege. Invocation of this privilege is a three-step process and the burden is on 

Complainant to show that the privilege protects the documents that it seeks to withhold 

from discovery, Walsky Constr. Co. v. United States, 20 Ct. Cl. 317, 320 (1990). First, to 

invoke the privilege, Complainant (through the agency head or by one to whom such 

authority has been delegated) must assert the privilege in an affidavit. See Marriott Int 'l 

Resorts, L.P. v. United States, 437 F. 3d 1302, 1308 (Fed. Cir. 2006). This, Complainant 

has not done. Second, the officer invoking the privilege must "state with particularity 

what information is subject to the privilege", Walsky at 320. This Complainant has not 

done. Third, Complainant must provide the Court with precise and certain reasons for 

maintaining the confidentiality of the information. Other than its generalized, 

unsubstantiated claims that "respondent will breach the deliberative process privileges of 

Complainant", and that the proverbial sky will fall, Complainant has not done this either. 

5. The depositions of Complainant's most knowledgeable persons concerning the manner in 

which the civil penalty was computed is fully within the scope of discovery set forth in 

Rule 13.220(e) (14 C.F.R. Sec. 13.220(e)). It is particularly telling that in seeking the 

protective order, Complainant has 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 or undue 

burden or expense. Other than alluding to these "horribles", Complainant has 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 

FOR PROTECTIVE ORDER 

3 
embarrassment, oppression or undue burden or expense. 

6. While Complainant states that it has already provided Martinaire with the releasable 

portions of its EIR (Motion, Paragraph 8), and has attached the EIR as Exhibit D, that 

Exhibit contains some 45-plus pages of redactions, including redactions presumably 

concerning how the 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 in fact applicable). 

7. Complainant has promulgated sanction guidance in hazardous materials enforcement 

matters in its Compliance and Eriforcement Handbook, FAA Order 2150.3B, Appendix 

C. Sanction Guidance Hazardous Materials Enforcement.5 

8. Under the above-referenced Sanction Guidance, sanctions for the type of violation 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 or IV carrier. The proposed $206,500 civil penalty for 12 

allegedly deficient notices to pilot in command (NOPC's) (or $17,212.50 per NO PC) 

exceeds the maximum suggested penalties, especially when considering that during the 

applicable period of time Martinaire generated some 500-600 NOPC's that were found to 

be fully compliant. Even if the alleged irregularities concerning the 12 NOPC's can be 

proved, this only amounts to a 2-2.4 percent margin of error. In other words, 97.6 to 98 

percent of the NOPC's were in full compliance. Considering the thousands of packages 

5 In the interests of economy, Appendix C has not been duplicated and attached, as it is assumed that the 

Court and Complainant's counsel are already familiar with that document. However, if this 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 

FOR PROTECTIVE ORDER 

4 
that Martinaire transports in the course of a year, this proposed penalty is highly 

disproportionate. 

9. This gross disproportion between the Sanction Guidance tables and the sanction sought in 

this matter, absent any evidence of how Complainant arrived at said amount, suggests 

that there is no basis for the amount sought. 

10. Martinaire is a small business. It has fewer than 100 employees. It's fleet consists of 39 

relatively small aircraft, Beech 1900's and Cessna 208's. Of the 39 aircraft, 24 are 

owned, the remainder are leased. 

For the above stated reasons, Martinaire respectfully requests that the Administrative Law 

Judge deny Complainant's Motion for Protective Order which would preclude Complainant 

from producing witnesses at deposition, and would preclude testimony or other evidence as 

to how Complainant arrived at its $206,500 civil penalty. 

Respectfully submitted, 

Dated this 12th day of April, 2013. 

MICHAEL L. DWOR 

AS IATES 

Mtchael L. Dworkin 

Attorneys for MARTINAIRE AVIATION, LLC 

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

MARTINAIRE AVIATION, LLC'S RESPONSE TO COMPLAINANT'S MOTION 

FOR PROTECTIVE ORDER 

5 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this 12th day of April, 2013, a true and correct 

copy of the foregoing MARTINAIRE AVIATION, LLC'S RESPONSE TO 

COMPLAINANT'S MOTION FOR PROTECTIVE ORDER was served as follows: 

Federal Aviation Administration 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

800 Independence Avenue SW 

Washington, DC 20591 

(Original plus one copy) 

{Federal Express} 

The Honorable Richard C. Goodwin 

Administrative Law Judge 

Office of Hearings, M-20 

Department of Transportation 

1200 New Jersey Avenue, S.W. 

Washington, DC 20590 

FAX: 1-202-366-7536 

{FAX and Federal Express} 

James Archier, Esq. 

Federal Aviation Administration 

Office of the Regional Counsel 

Southwest Region, ASW-7 

2601 Meacham Boulevard, Suite 6E 

Fort Worth, TX 76137 

FAX: 1-817-222-5092 

{FAX and Federal Express} 

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