u.s. DEP ARTNmNTOJrlTRANSPORTA'l'I~ E c E I v ED 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION ' NOV 1 8 2013 

HEARING DOCKET ''! "·,' _,'',/; \'.) 

FEDERAL AVIATION ADMINISTRATION, 

Complairtan( · ··l. : ' 1n ..... !. :·r1c -v·~; ,._ 1 '-i- ~- -·-·· 

Docket No. FAA-2012-0477 

vs: '- FAACilse%J. 201hit030070 

LIBERTY FOUNDATION, 

Re8pondent. Judg'e Sullivan 

FAA'S REPLY IN SUPPORT OF FAA'S MOTION TO COMPEL 

The FAA, by and through undersigned counsel, hereby replies in support of its previously 

filed Motion to Compel Respondent to properly answer the FAA's discovery requests. 

In the Motion to Compel, the FAA identified deficiencies in Respondent's answers to 

Interrogatories 3, 4, 7, 8 and 12, and Request for Production 2. In its Motion to Compel, 

Respondent answers Interrogatories 4 and 12. Therefore, these matters appear moot. As to the 

remaining, the FAA's position was primarily addressed in the original Motion to Compel. 

However, additional observation is warranted in reply to Respondent's:Reiponse, as Respondent 

asserts an "absolute right'' to do something that it is explicitly prohibited from doing. 

Respondent denied paragraphs 5(a) and 5(b) of the Amended Complai!lt,'whrch alleged ,··:·,~-·· 

that Rodiwy · Schiieider' s replacement of bladder fue! tanks with fabricated aluminum fuel tanks 

was improper in various respects. In Interrogatories 3 and 4, the FAA asked Respondent to 

provide the basis for these denials. Resp~ndent r~fu~ed to provide an explanation for its denial. 

In its Response to the FlA.A' s Motion to Co.rripei, Respclirideht 'asserts that its non-response was 

proper because it "has·an''ab'solute;righll.'b !;i:1'")lj .. 'l.oof-anfalh!gation'and require the FAA to 
prove the allegation." See Response at 3. This assertion is in error. A litigant is only permitted to 

deny an allegation if there is a good faith basis for doing so, and may not deny an allegation it 

knows to be true. 1 Respondent's position that a Respondent is entitled to deny allegations in a 

Complaint without any basis and then refuse to answer discovery requests would circumvent the 

entire purpose of an Answer, and much of the purpose of discovery. 

As exemplified in the Federal Rules of Civil Procedure, a party may not deny an 

allegation without a good faith basis for doing so: 

"By presenting to the court a pleading, written motion, or other paper-whether 

by signing, filing, submitting, or later advocating it-an attorney or unrepresented 

party certifies that to the best of the person's knowledge, information, and belief, 

formed after an inquiry reasonable under the circumstances ... the denials of 

factual contentions are warranted on the evidence or, if specifically so identified, 

are reasonably based on belief or a lack of information." 

Fed. R. Civ. Pro. 11 (b). Indeed, the prohibition is so strong that filing with the court a denial 

without a good faith basis can subject a litigant and/or the attorney to sanctions. See Fed. R. Civ. 

Pro. ll(c). Further, not only is a prohibition on bad faith denials enshrined in common sense and 

the rules of civil procedure, an attorney is also ethlcally prohibited from filing such a denial. See, 

e.g., Florida Rules of Professional Conduct 4-3.1 (attached as Exhibit A) (prohibiting an attorney 

from defending a case or controverting a particular issue within a case without a good faith basis 

in fact and law). 

Respondent's sole affirmative response to Interrogatories 3 and 4 was that Respondent 

was entitled to rely on Mr. Schneider's work. See Response at 3-4.Z Not only is this not fully 

responsive, it is not responsive at all. Paragraphs 5(a) and 5(b) of the Amended Complaint 

1 There is an exception for a criminal defendant, who has the right to plead not gnilty, remain silent, and require the 

prosecution to make its case. As this is not a criminal case, that exception is not applicable. 2 Respondent for the first time in his Response now points to an "expert" report provided earlier in this litigation, but 

the referenced report said nothing on the subject of whether Mr. Schneider performed the work in a manner 

acceptable to the Administrator, or whether the aircraft was restored to its original or properly altered condition. 
concerned whether Mr. Schneider had properly performed work on the aircraft when he replaced 

the bladder fuel tanks with fabricated aluminum fuel tanks. Respondent's belief that it is not 

legally responsible for Mr. Schneider's improper work is not a basis for denying a factual 

allegation that the work was improperly performed, and is not an explanation for that denial. 

Here, with respect to Paragraphs S(a) and S(b) of the Amended Complaint, Respondent 

did not admit the allegations. Nor did it answer that it lacked information to form a belief as to 

the truth of the allegations. It instead denied the allegations, something it was only permitted to 

do if it has a· good faith basis in fact and law for that denial. Respondent's answers in discovery 

and its response to the FAA's Motion to Compel, however, reveal that it had no basis for 

denying the allegations, but rather that it was exercising its "absolute right" to "simply deny" the 

allegations in order to force the FAA to engage in litigation on the subject. These denials were in 

violation of basic legal pleading principles, and the Federal Rules of Civil Procedure. 

Accordingly, Respondent should be required to amend its Answer to admit these allegations. 

WHEREFORE, the FAA respectfully requests that the FAA's Motion to Compel be 

granted, except as to those Interrogatories (4 and 12) which Respondent answered in his 

response, and that Respondent be required to amend its Answer to admit paragraphs 5(a) and 

S(b) of the Amended Complaint. 

,_~r-..... 

Respectfully submitted this Lj_ day of November, 2013. 

d 

CHRISTOPHER R. ST VENSON 

Attorney 

Office of the Regional Counsel 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Reply in Support of Motion to Compel was sent: 

Original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

One copy via certified mail and facsimile to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Stuart A. Goldstein, P.A. 

7300 North Kendall Dr., Suite 380 

Miami, FL 33156 

Facsimile: (305) 400-0685 

~AN~ Legal Assistant 

Office ofthe Regional Counsel 

Dated 
Added March 23, 2006, effective May 22, 2006 (SC04-2246), (933 So.2d 417); Amended November 19,2009, 

effective February I, 2010 (SCOS-1890) (34 Fla.L.Weekly S628a); amended July 7, 2011, effective October I, 2011 

(SCI0-1968). 

4-3. ADVOCATE 

RULE 4-3.1 MERITORIOUS CLAIMS AND CONTENTIONS 

A lawyer shall not bring or defend a proceeding, or assert or controvert an issue therein, 

unless there is a basis in law and fact for doing so that is not frivolous, which includes a good 

faith argument for an extension, modification, or reversal of existing law. A lawyer for the 

defendant in a criminal proceeding, or the respondent in a proceeding that could result in 

incarceration, may nevertheless so defend the proceeding as to require that every element of the 

case be established. 

Comment 

The advocate has a duty to use legal procedure for the fullest benefit of the client's cause, 

but also a duty not to abuse legal procedure. The law, both procedural and substantive, 

establishes the limits within which an advocate may proceed. However, the law is not always 

clear and never is static. Accordingly, in determining the proper scope of advocacy, account 

must be taken of the law's ambiguities and potential for change. 

The filing of an action or defense or similar action taken for a client is not frivolous merely 

because the facts have not first been fully substantiated or because the lawyer expects to develop 

vital evidence only by discovery. What is required of lawyers, however, is that they inform 

themselves about the facts of their clients' cases and the applicable law and determine that they 

can make good faith arguments in support of their clients' positions. Such action is not frivolous 

even though the lawyer believes that the client's position ultimately will not prevail. The action 

is frivolous, however, if the lawyer is unable either to make a good faith argument on the merits 

of the action taken or to support the action taken by a good faith argument for an extension, 

modification, or reversal of existing law. 

The lawyer's obligations under this rule are subordinate to federal or state constitutional law 

that entitles a defendant in a criminal matter to the assistance of counsel in presenting a claim or 

contention that otherwise would be prohibited by this rule. 

Amended July 23, 1992, effective Jan. I, 1993 (605 So.2d 252); Amended March 23,2006, effective May 22,2006 

(SC04-2246), (933 So.2d 417). 

RULE 4-3.2 EXPEDITING LITIGATION 

A lawyer shall make reasonable efforts to expedite litigation consistent with the interests of 

the client. 

., 

~ GOVERNMENT 

li EXJifiBIT 

i--tt,___ 

RRTFB- May I, 2013