In The Matter Of: 

SEI~VEI): January 26, 2017 

DEPARTMENT OF 

TRANSPORTATION 

lJ.S. l)EPAH.TMENT OF 'fR.ANSPC)I~TATIC)N 

C)FFICE ()F liEAI~INCiS 

WASI-IINCiTC)N, f)C 1111 JAN 21 A II: 5q 

OOCl~ET OPERATIONS 

Docket No. FAA-2015-3307 

FELTS FIELD AVIATION 

) 

) 

) 

) 

) 

Case No. 2015WP910090 

Respondent 

ORDER GRANTING IN PART AND D~~NYING IN PART 

THE RESPONDENT'S MOT.ION TO COMPEL 

On April 14, 2016, 2016, an Order Setting Litigation Dates and Procedures was filed. 

On July 14, 2016, an Order Extending Certain Litigation Deadlines was filed. An1ong 

other things, this July 14, 2016 Order denied the Respondent's July 12, 2016 oral motion to bar 

Mr. Eric Wells fron1 testifying as the FAA expeti witness; and directed the FAA to serve the 

Respondent, on or before July 22, 2016, with either a n1odified redacted copy of Exhibit C-1, or 

a privilege log justifying the redactions to the current Exhibit C-1. (July 14, 2016 Order, 3 ~~ 3-

4.) This Order also extended the deadline for cmnpleting general discovery from August 30. 

2016, to Septetnber 16, 2016. (!d.~ 6.) 

On July 21, 2016, the FAA served the Respondent, Felts Field Aviation, with a privilege 

log and a supplemented Exhibit C-1. 

On Septen1ber 13,2016, the Respondent served the FAA with a Letter expressing 

dissatisfaction with the July 21, 2016 materials, and rei-requesting an "unredacted copy" of the 

FAA's Enforcement Investigative Report ("EIR"). 

On September 16,2016, the Respondent filed the Respondent's Motion to Con1pel 

("Motion"). 
On September 22,2016, the FAA filed the Complainant's Opposition to Respondent's 

Motion to Compel ("Opposition"). 

On September 30, 2016, the Respondent filed the Respondent's Reply to Complainant's 

Opposition to Respondent's Motion to Compel ("Reply"). 

On Noven1ber 1 0, 2016, the parties convened by telephone for a Motion Conference. 

An1ong other matters discussed during this Motion Conference, the Court provided the parties 

with certain reference n1aterial and inforn1ation regarding the scope of the attorney work product 

privilege. The Motion Conference was then continued, by court tnotion, to Thursday, Decen1ber 

15,2016, at 1:30 p.n1. Eastern time. (Nov. 14,2016 Order, 1 ,-r 1.) 

On November 21,2016 the FAA filed the Complainant's Supplemental Response to 

Respondent's First Set of Interrogatories and Requests for Production of Documents 

("Supplemental Disclosures"). Among other things, the Supplen1ental Disclosures notified the 

Respondent that the FAA was withdrawing Mr. Wells as its designated expert as a witness. The 

FAA also notified the Respondent that it planned to call FAA Inspectors Sin1one Clinton at~d 

Shirley French, but solely as "lay" witnesses. 

On December 8, 2016, the Respondent filed Respondent's Supplen1ental Reply to 

C01nplainant's Opposition to Respondent's Motion to Compel ("Supplen1ental Reply"). 

On December 15, 2016, the parties convened by telephone for the continued Motion 

Conference. The parties addressed the Respondent's Motion to Compel. This Court then made 

immediate oral rulings on the Motion, which included setting specific litigation deadlines. This 

written Order codifies and supplements the oral rulings contained in the December 16, 2016 

transcript of the Motion Conference. 

A. Overview of Attorney Work Product Privilege 

As noted by this Court during both the November 10, 2016 Motion Conference and the 

December 15, 2016 Motion Conference (Nov. 10, 2016 Tr. 6:15--21; Dec. 16, 2016 Tr. 42:17-

48:4), there is a bright distinction between the broad pre-decisional "deliberative'' privilege 

available to an agency when responding to FOIA requests, versus any privilege raised by an 

agency when seeking to protect information from discovery in civil litigation. Agency materials 

Page 2 of 14 
may be denied from general public disclosure under FOIA standards, yet this same material 

might be disclosed in civil litigation under federal discovery standards. See, NLRB v. Sears, 

Roebuck&Co.,421 U.S.l32, 149(1975); F.T.C. v. Grolier, /nc.,462U.S.19,25-28(1983). 

Thus, when discussing the scope of discovery of an agency's investigative docun1ents during 

adversarial FAA civil penalty litigation, the FAA's assertion of "deliberative" privilege in this 

case is more accurately referenced as the attorney work product privilege. See MarkS. Wallace, 

Discovery ofGovernment Documents and the qfficial Jnfbrmation Privilege, 76 Colum. L. Rev. 

142, 152-144 (1976); Jeff A. Anderson, The Work Producl Doctrine, 1 68 Cornell L. Rev. 760. 

795-796 (August 1983); See e.g., United States v. Chatham City Corp. 72 F.R.D. 640 (D.Ga. 

1976) (investigative reports of F.B.I. agents prepared in anticipation of litigation are qualified 

attorney work product). This Court has addressed this issue in other cases, and hereby 

incorporates by reference the lengthy discussion and analysis about the attorney work product 

privilege in Airborne Maint. Eng'gServs., FAA-2013-0291, Order Denying Respondent's 

Motion to Compel Discovery of FAA Attorney's Work Product (Aug. 19, 2014). 

B. Overview of Discovery Dispute 

In the instant case, the prin1ary underlying discovery dispute involves the redacted parts 

of Section B of the FAA's Enforcen1ent Investigative Report ("EIR"), which is a total of six (6) 

pages, but contains tnultiple redactions on pages 2 through 6. (Mot., Exh. A.) These redacted 

pages purport to contain the pritnary factors that the FAA investigative personnel considered in 

calculating and recommending a proposed civil penalty for the alleged violations.2 

1 The Work Product Doctrine is a comprehensive study of the history and development of the work product doctrine 

and the application of Rule 26(b)(3), from common law to 1983 (the date of publication). While not fully 

comprehensive for today's cases in 2014, it remains a valuable resource for practitioners, and is cited frequently in 

this Order. 

2 For example, according to FAA Order 2150.38 Chapter 8. when the FAA investigates and subsequently alleges a 

violation, the FAA personnel "analyze whether each of the factors in Chapter 7, paragraph 4 or Appendix C is 

relevant and applies to the case." (FAA Order 2150.38 Chap. 8, 8-2 (b)(2).) The.fcJcts that the FAA should consider 

include, but are not limited to, the following: I) the nature of the violation (including how safety was affected); 2) 

whether the violation was inadvertent and not deliberate; 3) the certificate holder's level of experience: 4) the use of 

the ce11ificate; 5) the violation history; 6) the action taken by the employer or other authority; 7) decisional law; 8) 

the alleged violator's ability to absorb the sanction; 9) the consistency of the sanction; I 0) whether the violation was 

reported voluntarily; and, 11) any corrective action taken by the alleged violator. (!d.). In addition, the FAA is also 

supposed to utilize the guidance in Chapter 7 to determine if there are any mitigating or aggravating factors. (td.) 

Page 3 of 14 
In its discovery requests, the Respondent sought full disclosure of an unredacted EIR over the 

FAA's objection. In response, the FAA clai1ned that the redacted portions of the EIR contained 

"deliberative" fact, mental impressions, and opinion by FAA investigative personnel. The FAA 

objected to disclosure on the grounds that this 1naterial was preliminary investigation work 

protected by the attorney work product privilege (!d.). 

The Respondent's Septen1ber 16,2016 Motion requested an un-redacted EIR based on 

the argument that the EIR was "essentially the research product of the FAA's expert witness" 

Inspector Wells. It was undisputed that Inspector Wells was an FAA en1ployee who had not 

conducted the FAA's prelin1inary investigation. Instead, he had reviewed the entire EIR and 

adopted it by his signature as a supervising FAA Inspector. The FAA identified FAA Inspector 

Wells as its only expert witness. The Respondent argued, therefore, that all facts and opinion 

contained in the EIR (which had been authored by FAA Inspector Simone Clinton) were 

disclosable, since the EIR served as the sole basis of FAA Inspector Well's expe11 opinion. (Mot. 

2-3.) 

Subsequently, on November 21, 2016 the FAA filed its' Supplemental Disclosures, 

which notified the Respondent that the FAA was withdrawing Inspector Wells as its designated 

expert witness. The FAA also notified the Respondent that it would not be calling any expert 

witness in the case. Instead, the FAA re-asserted that it would call FAA Inspectors Simone 

Clinton and Shirley French, but only offer their testimony as ~·lay" witnesses. 3 (Supp. Disci., 1-

2.) 

Shortly thereafter, on December 8, 2016, the Respondent filed its Supplemental Reply, in 

which it argued that the EIR was still fully disclosable, despite the FAA's withdrawal of 

3 During the December 15, 2016 Motion Conference, the Court inquired about the FAA's identification of two FAA 

Inspectors as "lay witnesses", and expressed concern about the FAA's assertion that these two FAA Inspectors 

would not proffer testimony involving either FAA Inspector's specialized training or expertise. (Dec. 15. 2016 Tr. 9-

21.) It should be emphasized that in the year 2000, in response to a split in cou11 rulings, as well as the discussion 

and decision in Asplundh M,l~. Div. v: Benton Harbor Engineering, 57 F.3d 1190 (3rd Cir. 1995), the Advisory 

Committee for the Federal Rules of Evidence amended Rule 70 I to limit lay opinion testimony to common 

kn·owledge mauers. Fact testimony "cannot be admitted under Rule 70 I if it is based on scientific, technical, or other 

specialized knowledge within the scope of Rule 702." (3-70 I Federal Rules of Evidence Manual, § 70 1.02) 

(emphasis added). See also, Fed. R. Fed. P. 701 Advisory Committee Notes, 2000 Amendments. 

Page 4 of 14 
Inspector Wells as an expert witness and its asset1ion that Inspector Clinton would not proffer 

any expert testin1ony. 

C. Limited Access to }? AA Employee Expert Witness Data 

Pursuant to 14 C.F .R. § 13 .220( e), a party is entitled to discover "facts known" by an 

expert, or the "opinions held" by an opposing party's proffered expert. It is also well-established 

in federal civil litigation that part of the data any proffered expert may consider in fanning an 

opinion also includes the opinions of others. The Work Product Doctrine at 799-800; see also, 

Fed. R. Fed. P. 703, and Fed. R. Fed. P. 703 Advisory Con1mittee Notes, 1972 (one of the 

sources of data an expert n1ay review and consider is the opinions of other experts). 

In support of its asse11ion that the EIR re1nained fully disclosable after the withdrawal by 

the FAA of Inspector Wells as an expert, one of the cases the Respondent proffered was S. E. C. v. 

Koenig, 557 F.3d 736 (7th Cir. 2009). In Koenig, the defendant had identified an economist as an 

expert witness. This expert prepared a report which was disclosed in discovery. The expert was 

also deposed by the plaintiff, the opposing party. At trial, however, the defendant chose not 

present the expert's report or testimony. Instead, the plaintiff introduced the economist expert's 

testimony via the video of his deposition, because it was helpful to the plaintiff. 

The Koenig Court found that even though the defendant had withdrawn the economist 

expert as a witness, the expe11's report and deposition testin1ony was fully available to the 

plaintiff to utilize, in part because once the defendant identified the econon1ist as an expert 

witness, he (and his expert report) was available for either side to utilize: 

A witness identified as a testimonial expert is available to either side; such a 

person can't be transformed after the report has been disclosed, and a deposition 

conducted, to the status of a trial-preparation expert whose identity and views 

may be concealed. Disclosure of the report ends the opportunity to invoke 

confidentiality. 

Koenig, 557 F.3d at 744 (internal citation 01nitted); Mot., 4-5. 

In this case, the Respondent en1phasized that since Inspector Wells has already been 

identified as an expert witness, with parts of the EIR (upon which Inspector Wells based his 

expert opinion) disclosed, the FAA's withdrawal of Inspector Wells as an expert witness was 

Page 5 of 14 
itTelevant. Since Inspector Wells had been identified, then the EIR data upon which he had 

intended to rely was fully available and should be disclosed without redaction for the Respondent 

to utilize. 

The Respondent's argument is not persuasive. There is a sharp distinction to be made 

between Koenig and the instant case. Pursuant to the FAA's Rule.s of Practice, the Respondent is 

prohibited from calling any FAA en1ployee as an "expe11 or opinion witness." 14 C.F.R. § 

13.227. Similarly, the FAA is prohibited from calling any Respondent etnployee as an "expert or 

opinion witness."4 (!d.) Because 14 C.F.R. § 13.227 prohibits the Respondent from ever 

independently calling Inspector Wells (an FAA employee) as an expert or opinion witness, the 

Koenig Court's analysis that a patiy's expert witness identification "ends" the confidentiality 

accorded to an undisclosed "trial preparation expert'' (and expeti report), is not applicable here. 

Instead, once the. FAA withdrew its employee, Inspector Wells, as an expert witness, his 

testimonial opinion and the data supporting his expert opinion were no longer "available" to the 

Respondent to utilize. Therefore, the FAA is not required to disclose the unredacted EIR as the 

"facts known, or opinions held" by Inspector Wells (14 C.F.R. § 13.220(e)) after the FAA 

withdrew its identified expert en1ployee, FAA Inspector Wells, as an FAA expert witness. 

D. Redacted EIR Data Qualifies as Attorney Work Product 

The next question is whether the redacted portions of the EIR qualify as atton1ey work 

product. 5 In this case, the redacted EIR data does qualify as attorney work product. 

1. Brief Sumtnary of the· Four Types of Discovery Material 

In the adversarial systen1, there are four broad-based types of material that parties seek to 

obtain from each other in preparation for trial: "facts," "attorney ordinary work product," 

"attorney's opinion work product," and "legal theories." Work Product Doctrine at 788-89. Of 

4 It is unclear from the language of 14 C. F. R. § 13.227 whether such FAA or Respondent employees could still be 

called by the opposing side as lay fact witnesses. 5 The FAA objected to disclosure on the grounds that the contents of the redacted portions of the El R was protected 

under the attorney work product. (Dec. 15, 2016 Tr. 48:3-4.) 

Page 6 of 14 
these four types of material, facts 6 and legal theories 7 

are freely discoverable, !d. at 799, 

whereas an attorney's "ordinary" and "opinion'' work product receive ce1iain protections fron1 

discovery, !d. at 763-64. The ren1ainder of this section will address only attorney work product 

materials, which are at issue in this case. 

2. Attorney's "Ordinary" Work Product 

An attorney's "ordinary" (or "shell") work product is the full sum of an attorney's work. 

Work Product Doctrine at 789. Ordinary work product includes an attorney's "interviews, 

statements, memoranda, correspondence, briefs, n1ental itnpressions, personal beliefs, and 

·countless other tangible and intangible" materials. !d. at 791 (quoting Hickman, 329 U.S 495 at 

508). It also includes "investigative reports," or "inter- and intra-office n1emoranda of 

goven1ment agencies, if the 1nen1oranda are prepared in anticipation of litigation." Work Product 

Doctrine at 795~ See United States v. Nobles, 422 U.S. 225, 238-39 (I 975) (Rule 26(b)(J) 

protects documents prepared by or for a patiy, as long as they were prepared in anticipation of 

litigation). 

In general, Rule 26(b )(3) requires three (3) tests to be satisfied before n1aterials n1ay be 

classified as an attorney's ordinary work product. The 1naterials must be: 

a. "documents and tangible things;" 

b. "prepared in anticipation of litigation or for trial;" and 

c. "by or for another party or by or for that other party's representative." 

Wright & Miller, supra, §2024. 

It should be emphasized, however, that the work product doctrine is not "an umbrella that 

shades all materials prepared by a lawyeror agent of the client." 23 Atn. Jur.2d § 44 (2014). 

6 "Facts" are actual physical circumstances in reality (e.g., objects, behavior, deeds, or events). Facts, when 

segregated from other types of discoverable material, are not protected. They are always discoverable, often by 

voluntary disclosure, or by interrogatory or deposition. Work Product Doctrine at 789. 

7 "Legal theories" are the legal principles upon which a pm1y intends to rely. Work Product Doctrine at 784-86 at 

838. Discoverability: Legal theories are not protected as work product, and are usually discovered through 

pleadings or through interrogatories and requests for admission. /d. at 838. Essentially, legal theories are 

"discoverable only after opposing counsel has done the preliminary work the adversary system seeks to encouragenarrowing issues and recognizing the importance of particular facts." /d. at 838. 

Page 7 of 14 
Instead, it applies only to documents a party has assembled, not to facts learned fron1 those 

docun1ents. Jd 

!d. 

For example, the doctrine does not protect factual infon11ation that a lawyer obtains when 

investigating a case; the work product concept furnishes no shield against discovery, by 

interrogatories or by deposition, of the facts that the adverse party's lawyer has learned, 

or the persons fron1 whom he or she has learned such facts, or the existence or 

nonexistence of docmnents, even though the documents thetnselves n1ay not be subject to 

· discovery 

Thus, even if the court classifies n1aterial as an attorney's ordinary work product_ facts 

contained in an attorney's ordinary work product n1ay still be isolated and discovered. 1¥ork 

Product Doctrine at 789; Wright & Miller, supra,§ 2024; 23 Am. Jur.2d § 44 (2014). 

3. Attorney "Opinion" Work Product 

An attorney's "opinion" work product is distinct fi·om opinions contained in an attorney·s 

ordinary work product n1aterials. Work Product Doctrine at 817. In contrast to an attorney's 

ordinary work product, an attorney's opinion (or "core") work product is the attorney's thought 

processes.

8 Work Product Doctrine at 791; Wright & Miller, supra. § 2026. It is the "n1ental 

impressions, conclusions, or opinions of the lawyer." Work Product Doctrine at 793. 

Opinion work product includes an attorney's legal strategy, such as his intended lines of · 

proof and cross-examination plans. It encompasses an attorney's evaluation of the 

strengths and weaknesses of his case and the inferences he has drawn fron1 interviews of 

witnesses. A counsel's ordering of facts and his tnarshaling, aligning, and indexing of 

empirical data and docun1ents is also given itnn1unity from discovery. Even a mere 

compilation of facts tnay be protected under rule 26(b )(3) if it ref1ects an attorney's 

n1ental impressions. 

!d. at 818-819 (citations on1itted). 

8 "Thought processes" have also been called "intangibles." For example, the lower court in Hickman v. Taylor 

described "intangibles" as: "the lawyer's use of his tongue, his pen, and his head, for his client." Work Product 

Doclrine, at 775, quoting Hickman v. Taylor, 153 F. 2d 212, 223 (3d Cir. 1945), c~fl'd on other groundY, 329 U.S. 

495 ( 1947). . 

Page 8 of 14 
An attorney's "opinion work product" also includes the "mental impressions, 

conclusions, opinions, or legal theories of "other representative[ s] of a party" regarding the 

litigation. /d. at 817; Accord Wright & Miller, supra, §§ 2019 and 2026. 

[T]he [work product] doctrine is an intensely practical one, grounded in the realities of 

litigation in our adversary system. One of those realities is that attorneys often n1ust rely 

on the assistance of investigators and other agents in the con1pilation of n1aterials in 

preparation for trial. It is therefore necessary that the doctrine protect n1aterial prepared 

by agents for the attorney as well as those prepared by the attorney hin1self. 

Nobles, 422 U.S. at 238-39. 

It should be noted, however, that the mere presence of mental impressions, conclusions, 

and legal theories within docun1ents held by a party's attorney is not determinative of a 

privileged status. Work Product Doctrine at 825. Nor is discovery of an atton1ey's opinion work 

product (which includes the opinion of attorney investigators) absolutely barred from discovery. 

Instead, individual cases turn on their particular circumstances, and should be viewed with a 

"nuanced approach to the anticipation of- litigation prong of work- -product analysis." Wright & 

Miller, supra, § 2024. Thus, opinions, impressions, or other matters in an attorney's ordinary 

work product n1ay be discoverable. Work Product Doctrine at 800 (etnphasis added). 

4. Redacted EIR Data Qualifies as Attorney Work Product 

In the instant case, the redacted EIR data in dispute was c01npiled by FAA investigators 

prior to the FAA filing formal charges in a legal enforcen1ent action. The redacted EIR data 

includes both recorded fact and opinion material. It is data that the FAA attorney and other FAA 

personnel review prior to filing a fonnal civil penalty action. The FAA Investigator's fact and 

opinion material, contained in the EIR, n1ay be adopted, modified, or abandoned prior to the 

filing of a legal enforcen1ent action. Thus, because an FAA's investigator's investigative work is 

preliminary to a regulatory legal enforcement action and subject to review and modification (or 

abandomnent), it qualifies as protected under an attorney ''work product" privilege. 

E. Discovery of the I~"'AA's Evidentiary Data Regarding the Sanction 

The primary questions presented in FAA civil penalty actions area "whether the violation 

or violati<?ns alleged occurred, and if so, the appropriate civil penalty to be assessed." American 

Page 9 of 14 
Airlines, Inc., FAA Order No. 89-0006 (Dec. 21, 1989); see also, Airborne Main!. & Eng 'g 

Servs., FAA-2013-0291, Order at 7 (May 2, 2014). 

As the complaining party, the FAA has the burden to produce evidence to prove both its 

alleged violations and the appropria~eness of its proposed civil penalty amount. 14 C.F.R. § 

13.224; Schuman Aviation Co. Ltd., FAA Order No. 2016-2 at 2 (Aug. 24, 2016). As the 

defending party, the Respondent has a right to discover the FAA's fact and opinion evidence 

regarding the FAA's case-in-chief, prior to the hearing. It is well-established that "information 

· essential to a just decision" should always remain available to the litigating parties. Work 

Product Doctrine at 799. This 1neans that the evidence the FAA knew about and considered in 

support of the alleged violations in its Cmnplaint, as well the evidence that the FAA considered 

or relied upon in calculating the proposed civil penalty, is disclosable to the Respondent. 

In the instant case, the record reflects that the Respondent has been seeking disclosure of 

the FAA's sanction-related information (purportedly contained in the redacted part of the EIR) 

since the Respondent served the FAA on October 13, 2015 with the Respondent's First Set of 

Discovery Requests. 

On July 8, 2016 (i.e., eight (8) n1onths after receipt of the Respondent's discovery 

requests) the FAA faxed to the Respondent its Discovery Response. The Respondent then 

sought Court assistance to obtain requested discovery that the FAA had failed to disclose. 

On July 14, 2016.this Court ordered the FAA to provide the Respondent with either a 

n1odified redacted copy of the EIR, or a privilege log justifying the redactions. (July 14,2016 

Order, 3 ~ 3.) One month later, on August 9, 2016, the Respondent sent a "detailed letter" to the 

FAA renewing its discovery request for disclosure of all facts the FAA "investigative personnel" 

utilized in calculating the FAA'sproposed sanction. Such facts are generally referenced in the 

redacted EIR's paragraph headings regarding the FAA's sanction evidence. (Dec. 16,2016 Tr. 

34:1-37:18; and 58:16-59:8;) According to the Respondent, the FAA responded to the August 9, 

2016 letter by refusing to provide any further discovery on tl~e preliminary sanction evidence 

(contained in the EIR) on the grounds of privilege. {ld., at 35:5.) The FAA did not, however, 

provide any other infom1ation about the facts and opinion it had ultimately utilized in calculating 

the proposed $11,000 civil penalty contained in its Con1plaint. Thereafter, with discovery 

Page 10 of 14 
regarding the FAA's sanction evidence still unresolved, the Respondent filed its Septen1ber 16, 

2016 Motion to Compel. 

It was undisputed that the Respondent's August 9, 2016 letter requested the "facts and 

circumstances" considered by FAA "investigative personnel" in proposing the sanction. (Motion, 

Ex. C, 1.) The Respondent's phrase "investigative personnel" was problen1atic (as this Court 

noted during the December 16, 2016 Motion Conference), since such preliminary 

recon1mendations by investigative staff may or may not be ultin1ately utilized and adopted by the 

prosecuting FAA attorney. (Dec. 16,2016 Tr. 51:12-52:10.) Thus,·because an FAA's 

investigator's investigative work is preli1ninary to a regulatory legal enforcement action and 

subject to review and modification (or abandonment), it qualifies as protected under an attorney 

"work product" privilege. 

However, once a decision is made by the FAA attorney to allege a regulatory violation 

and propose a sanction, whatever facts and data and opinions actually utilized by the FAA to 

support or explain the allegations in its Complaint are disclosable. This information may either 

be disclosed by the FAA by proffering unredacted portions of the EIR (if such information is 

contained in the EIR) or the FAA may disclose other information · not contained in the EIR 

which it considered. Wherever the infon11ation is located, there should be no doubt that such 

evidentiary material is fully disclosable. 

During the December 16, 2016 Motion Conference, the FAA stated that it was not 

opposed to providing to the Respondent the specific facts and circUinstances suppm1ing the 

FAA's determination arid calculation of the proposed sanction. It had not done so, however, 

because it did not recognize the Respondent's August 9, 2016 follow-up letter as a proper 

request. Instead, it was waiting for the Respondent to serve it with "a separate interrogatory." 

(!d., 40:11-41 :9.) Notably, the FAA did not deny that it knew the Respondent wanted the 

inforn1ation. The FAA also did not discuss or reference the repeated atten1pts by the 

Respondent, dating back to October 2015, to obtain the inforn1ation from the FAA. 

Based on the record ih this case, the FAA's assertion that it needs a ''separate 

interrogatory" fron1 the Respondent before it discloses its sanction evidence is without n1erit. 

The record is rife with the Respondent's frustrated attempts to seek information from the FAA 

Page 11 of14 
about its sanction calculation, as well as the FAA's continuing refusal to provide any fact or 

opinion data about it, on the grounds that it is all "privileged." 

It should be noted, therefore, that most of the specific facts and circumstances considered 

by the FAA in calculating its proposed sanction in any c~vil penalty proceeding is usually 

presented by the FAA in its case in chief at hearing. It is basic evidence that virtually every 

respondent (both represented and prose) seeks in FAA civil penalty cases. Further, it is evidence 

that is often infonnally shared by the FAA with respondents during private settlement 

negotiations. It is not infonnation that should be deliberately held back by the FAA in the 

absence of a "separate interrogatory" or because the respondent's discovery request is 

imperfectly phrased. 9 Once the FAA has been notified that a respondent seeks this inforn1ation, 

it should act promptly to disclose the tnaterial. 

The Respondent's Motion to compel the FAA to disclose to the Respondent, in detail, the 

specific facts and circumstances the FAA considered in its calculation of the proposed $1 LOOO 

civil penalty should be granted. 

F. Respondent's Brady Argument 

Finally, and briefly, this· Cowi declines to apply the Brady Rule to FAA civil penalty 

actions. (Mot. Compel, 3-4; Reply, 1 0; Suppl. Reply, 6-7.) 

In Brady v. Maryland 373 U.S. 83 (1963), a defendant admitted his participation in a 

murder but claimed that his separately, tried associate did the actual killing counsel. The 

defendant's attorney requested that the prosecution allow him to exan1ine the extrajudicial 

statements of the defendant's associate. The prosecution provided several statements, but 

withheld the statements in which the associate admitted to committing the actual homicide. The 

defendant did not know about this withholding of evidence until after he had been tried, 

convicted, and sentenced, and after his conviction had been affirmed. On appeal, the Supreme 

Court held that "the suppression by the prosecution of evidence favorable to an accused. upon 

9 Indeed, the FAA might consider voluntarily providing its sanction fact evidence to every respondent, as part of its 

early initial disclosures. This would effectuate earlier settlement discussions, reduce costs of litigation for both 

parties, and streamline any outstanding discovery exchange. 

Page 12 of 14 
request violates due process where the evidence. is material either to guilt or to punishn1ent, 

irrespective of the good faith or bad faith of the prosecution." Brady, 373 U.S. at 87. 

In the case herein, the Respondent argued that "this is not a crin1inal case [but] Due 

Process is still required since it is an administrative adjudication with the possibility of the 

deprivation of property interests. (Mot. Compel, 4 (citing Bd. OfRegents of State Colleges v. 

Roth, 408 U.S. 564 (1972). The Respondent's argun1ent ignores subsequent cases that have 

found that the Brady Rule is a "rule of criminal law'' Perez v. Wallis, 77 F.Supp.3d 730, 74 7 

(N.D. Ill. 2014), and the Supretne Court has "never stated that the Brady rule applies in civil 

cases." Demjanjuk v. Petrovsky, 10 F.3d 338, 353 (6th Cir. 1993). In cases "where what was at 

stake in the underlying proceeding was 'n1oney and reputation, not whether someone [would] be 

locked away,' courts, including the Fourth Circuit, have uniforn1ly held that Brady is 

inapplicable." Stultz v. Va. Dep't ofTran\p., No. 7:13CV00589, 2016 WL 4491714 at *16 (W.O. 

Va. Aug. 26, 20 16) (quoting United States v. Project on Government Oversight, 839 F.Supp.2d 

330, 343 (D.D.C. 2012) and citing a collection of cases). 

FAA civil penalty actions are not akin to the exceptional circun1stances in which courts 

have extended the Brady Rule. Demjanjuk, 10 F.3d 338 (denaturalization and extradition); 

United States v. Edwards, 777 F. Supp. 2d 985 (E.D.N.C. 2011) (civil commitment for sexual 

offenders); EEOC v. Los Alamos Constructors, Inc., 382 F.Supp. 1373 (D.N.M. 1973) (footnote 

in order directing govermnent to provide discovery). Nor has the FAA adopted its own version of 

the Brady Rule. Compare 17 C.F.R. § 201.230(a)(3) (SEC); 12 C.F.R. § 1 081.206(a)(2) (CFPB). 

Therefore, this Court will not apply the Brady Rule as grounds for the FAA to provide an 

unredacted EIR. 

G. Conclusion 

Having reviewed the case file, all pleadings and motions, all relevant caselaw, statutes, 

regulations, rules, and authority, and being fully advised; 

Page 13 of 14 
IT IS HEREBY ORDERED: 

1. The Respondent's Motion to Compel is granted in pat1. On or before January 17, 2017, 

the FAA shall specifically disclose to the Respondent how each of the "Factors Affecting 

Sanction" headlined in the EIR, as well as any other data it considered pursuant to FAA 

Order 2150.3 B, had been considered in the FAA's final detern1ination of the proposed 

$11,000 civil penalty in its Complaint (see, Dec. 16,2016 Tr. 64:11-67:6). 

2. The Respondent's Motion to Compel the redacted portions of the EIR (i.e., Exhibit A. of 

the Respondent's Motion to Compel) is denied. In addition, an in comero review of the 

redacted portions of the EIR is denied. 

3. The Hearing, currently set for March 1. 2017 March 2, 2017, is cancelled . The parties 

shall reserve tlie week of June 19, 2013- June 23, 2017 as a possible new Hearing date. 

4. The parties shall appear by telephone on Friday, February 3, 2017, at 1:00 p.m. 

Eastern time for a Scheduling Conference. The parties shall be prepared to schedule 

exact dates of the Hearing and deadlines to file dispositive motions, witness lists and 

exhibits, written stipulations, and other litigation n1atters. The parties shall access the 

Court's Conference line by dialing 1-888-278-0296, and when pron1pted , entering access 

code 5851842. 

6. If either party needs clarification or has any questions regarding the procedures contained 

in this Order, contact Ms. Kelly Ort, Judicial StafT Assistant, at the Office of 

Hearings (202-366-5121 ). 

Ju 

Attachment: Service List 

Page 14 of 14 
Docket No. FAA-2015-3307 

(Civil Penalty Action) 

SEI~VICE LIST- JJY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building--Suite 2W1 000 1 

Ms. Fatin1ah Stokley 

Complainant's Counsel 

Federal Aviation Administration 

Enforcement Division- Western Tean1 

P.O. Box 920007 

Los Angeles, CA 90009-2007 

TEL: 310-725-7112 

FAX: 310-725-6816 

Mr. Mark J. Conlin 

Mr. Benjamin L. Wyborney 

Re.spondent 's Counsel 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Suite 911 

Spokane, W A 99201 

TEL: 509-624-3020 

FAX: 509-623-1650 

Judge J.E. Sullivan 

U.S Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

ONE COPY 

1200 New Jersey Avenue, S.E. (El1-310) 

Washington, DC 20590 

TEL: 202-366-5121 

FAX: 202-366-7536 

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 2W I 000, Washington, 

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