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# vED OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION ' 

## NOV 1

# 82013 

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### FEDERAL AVIATION ADMINISTRATION, Complairtan( · ··l. : ' 1n ..... !. :·r1c**-v·~;** 

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### Docket No. FAA-2012-0477 vs: '- FAACilse%J. 201hit030070 LIBERTY FOUNDATION, Re8pondent. Judg'e Sullivan

FAA'S REPLYIN SUPPORT OFFAA'S MOTION TO COMPEL The FAA, by and through undersigned counsel, hereby replies in support ofits previously filed Motionto 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 itis explicitly prohibited from doing. Respondent denied paragraphs 5(a) and 5(b) ofthe Amended Complai!lt,'whrch alleged**,··:·,~-··** 

### that Rodiwy·Schiieider's replacement ofbladder 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 toprove the allegation." 

### See Response at 3. This assertion is in error. A litigant is only permitted to deny an allegation ifthere 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 ofan Answer, and much ofthe purpose ofdiscovery. As exemplified in the Federal Rules of Civil Procedure, a party may not deny an allegation without a good faith basis for doing so: "Bypresenting to the court apleading, written motion, or otherpaper-whether by signing, filing, submitting, or later advocating it-anattorney or unrepresented party certifies that to the best ofthe 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, ifspecifically so identified, are reasonably based onbeliefor a lack ofinformation." 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 onbad faith denials enshrined in common sense and the rules ofcivil procedure, an attorney is also ethlcally prohibited from filing such a denial. 

### See, e.g., FloridaRules ofProfessional Conduct 

### 4-3.1 (attached as Exhibit A) (prohibiting an attorney from defending a case orcontroverting 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 theright to pleadnotgnilty, remain silent, andrequire 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 nowpoints to an "expert" reportprovidedearlierinthis litigation, but the referencedreport saidnothing onthe subject ofwhether Mr. Schneiderperformedthe work in a manner acceptable to the Administrator, or whether the aircraftwas restoredto its original orproperly altered condition.

### concerned whether Mr. 

### Schneider hadproperly performed work on the aircraft whenhe 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 thatthe work was improperlyperformed, and is not an explanationfor that denial. Here, with respect to Paragraphs S(a) and S(b) ofthe Amended Complaint, Respondent did not admit the allegations. Nor did it answer that it lacked information to form a beliefas to the truth ofthe allegations. It instead denied the allegations, something it was only permitted to do ifithas 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 shouldbe 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) ofthe Amended Complaint.**,_~r-.....** 

### Respectfully submittedthis

# Lj_ day ofNovember, 2013.



# d

CHRISTOPHER R. 

### ST VENSON Attorney Office ofthe Regional CounselCERTIFICATE OF SERVICE I hereby certify thatthe foregoing FAA's Reply in Support ofMotionto Compel was sent: Original and one copy viacertified mail to: Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2Wl000 One copy via certified mail and facsimile to: The Honorable J.E. Sullivan Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey 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 oftheRegional Counsel

DatedAdded March 23, 2006, effective May 22, 2006 (SC04-2246), (933 So.2d417); Amended November 19,2009, effective February I, 2010 (SCOS-1890) (34 Fla.L.Weekly S628a); amendedJuly 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 thatis not frivolous, whichincludes a good faith argument for an extension, modification, orreversal ofexisting law. A lawyer for the defendant in a criminal proceeding, orthe respondent in a proceeding that could result in incarceration, maynevertheless so defend the proceeding as to require that every element ofthe case be established. Comment The advocate has a dutyto use legal procedure for the fullest benefit ofthe 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 ofadvocacy, account must betaken ofthe law's ambiguities and potential for change. The filing ofan action or defense or similar actiontaken for a client is not frivolous merely because the facts have not first been fully substantiated orbecause the lawyer expectsto develop vital evidence onlybydiscovery. What is required oflawyers, however, is that they inform themselves about the facts oftheir clients' cases and the applicable law and determine that they can make good faith arguments in support oftheir clients' positions. Such action is notfrivolous even though the lawyer believes thatthe client's position ultimately will not prevail. The action is frivolous, however, ifthe lawyer is unable either to make a good faith argument on the merits ofthe action taken or to support the action taken by a good faith argument for an extension, modification, orreversal ofexisting 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 ofcounsel inpresenting a claim or contention that otherwise would be prohibited bythis rule. AmendedJuly 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 makereasonable efforts to expedite litigation consistent with the interests of the client.



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RRTFB- May I, 2013