u.s. DEPARTMENT OF TRANSPORTATIOfl E c E IV,E D 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION. AUG 2 1 2013 

. HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

Docket No. FAA-2012-0477 

FAA Case No, 20UGL030070 

LIBERTY FOUNDATION, 

Respondent. Judge Sullivan 

RESPONSE IN OPPOSITION TO RESPONDENT'S DISCOVERY MOTION 

After more than six months of discovery, Respondent's Director of Maintenance was 

made available for deposition and disclosed certain facts that established Respondent's liability 

for acts of violation intertwined with those charged in the Complaint. Accordingly, the 

Complaint was amended to reflect the facts disclosed dming discovery. Phrased it in several 

different ways, Respondent's ensuing motion asks for additional discovery on these subjects. 

This motion should be denied - Respondent is already in possession of the evidence on these 

Issues. 

As an initial matter, one of the speculative allegations made by Respondent in the Motion 

should be addressed. In particular, Respondent alleges that "It is inconceivable that Complainant 

just learned of these issues as a result of its deposition of Mr. Schneider." This allegation is not 

only inaccmate, but rather bizarre in light of the conversation between the undersigned and 

opposing counsel's immediately after the deposition, dming which we discussed these 

revelations and opposing counsel represented that even he had not been aware of these facts 

prior to the deposition. After the deposition opposing counsel expressly stated, rather 
apologetically, to the undersigned that he had been unaware of the failure to make a maintenance 

log entry prior to the June 13, 2011 flight. And when we discussed the possible effect of 

Schneider's testimony about serving as Director of Maintenance when the work involved in this 

case was performed, opposing counsel specifically questioned the accuracy of the timing 

provided by Schneider. It is entirely unclear why Respondent would, through counsel, insist that 

the FAA must have known of these facts, when its own attorney did not know them, despite 

having a long-term working relationship with Respondent, 1 representing Respondent in this case, 

and representing Schneider in the prior certificate action arising out of the same factual matters? 

Further, Respondent had, through counsel, previously presented to the FAA an "expert" report 

opining that the welding had not failed prior to the June 13, 2011, fire- either opposing counsel 

was unaware of the failure of the welding, or else he lmowingly presented false evidence to the 

FAA in discovery. In short, Respondent's complaint that the FAA should have known of these 

facts, when they were apparently not even disclosed to its own attorney, is absurd. However, all 

of this information was known to Respondent's Executive Director/Chief Pilot, Ray Fowler, who 

personally signed Respondent's discovery responses - if Respondent wanted this information 

addressed in the litigation prior to Schneider's deposition, it should have disclosed it sooner. 

However, while the FAA addresses the above for the sake of accuracy, it does not affect 

the actual issue raised in the Motion, which is whether additional time is necessary to conduct 

additional discovery, or whether the FAA should be ordered to produce the evidence upon which 

it relies. No such time is necessary because all discovery has already been conducted, and all 

1 For example, the exemption that permitted Respondent to operate during the time frame at issue in this case was 

issued to opposing counsel. 2 Respondent notes that the FAA has had access to the applicable log book entries. This is true, but irrelevant. No 

log book entry disclosed the information that supports the amendment to the complaint. 
evidence has been produced. Indeed, the three new aspects added in the Amended Complaint 

were added because they were all matters that had been conclusively addressed in discovery. 

The Amended Complaint added three new elements (1) N390TH was not in a condition 

for safe operation after the February 2011 alteration; (2) no maintenance log entry was made for 

the June 13, 2011 repair before the June 13, 2011 flight; and (3) Respondent is liable for the 

underlying maintenance allegations. Each of these allegations is based on a new fact, and each of 

these facts was admitted by Schneider during his deposition. First, Schneider admitted that the 

February 2011 alteration caused the June 2011 fuel leak. Second, Schneider admitted that no 

maintenance log entry was made prior to the June 13, 2011 flight. Third, Schneider admitted that 

he was Respondent's Director of Maintenance at all relevant times. There is little else to add. 

Respondent alleges two broad issues on which he is entitled to discovery. There is no 

further discovery to be had on any of these subjects. First, Respondent asserts that it is entitled to 

discovery regarding the extent of Schneider's authority as Director of Maintenance. This 

suggestion is rather odd, given that this is information that Respondent already has in its 

possession - why would Respondent need to propound discovery requests to the FAA about its 

relationship with its own Director of Maintenance? It is also worth noting that Respondent's first 

affirmative defense in this case is that it is not responsible for even its own operational violations 

because it relied on Schneider as an outside certificated mechanic. Any information pertinent to 

the Director of Maintenance issue was already pertinent to that affirmative defense. Further, 

Respondent already addressed Schneider's revelation in discovery - for example, in the 

deposition of Respondent's Executive Director, which took place the day after Schneider's 

admissions, the Executive Director spontaneously held forth on the role of the Director of 
Maintenance, and opposmg counsel asked the Executive Director specific questions about 

Schneider's position with Respondent. 

Second, Respondent asserts that it is entitled to know what evidence, witnesses, and 

documents the FAA will use to support these new allegations. Rather than simply filing an 

Amended Complaint without any explanation, which the FAA could have done, the undersigned 

went to great lengths to explain exactly what the basis for the additional allegations was - the 

evidence disclosed by Schneider during his deposition. There is nothing further to disclose. The 

fact that the February 2011 alteration caused the June 2011 fuel leak is established by 

Respondent's then-Director of Maintenance, who performed both the February 2011 alteration 

and the June 2011 repair, admitting that the cause of the June 2011 fuel leak was a failure in the 

February 2011 welding. The FAA had already identified four expert witnesses to testify about 

the aircraft's unairworthiness after the February 2011 alteration - the same four will still 

testifying that the aircraft was unairworthy, to the extent that any testimony is even necessary. 

The fact that no maintenance log entry was made until after the June 13, 2011 flight is 

established by Respondent's then-Director of Maintenance admitting that he did not make the 

maintenance log entry for the June 13, 2011 repair until after N390TH had been lost during the 

June 13, 2011 flight. The fact that Respondent's then-Director of Maintenance was Respondent's 

Director of Maintenance is established by the Respondent's then-Director of Maintenance 

admitting that fact- as well as confirmation of this fact at the subsequent deposition testimony of 

Respondent's Chief Pilot/Executive Director and Respondent's prior Director of Maintenance, 

both of which were attended by opposing counsel. 

That there is nothing left to disclose on this front is further emphasized by a review of the 

FAA's summary judgment motion. That motion attaches extensive evidence, but every single 
document is one that was previously disclosed and every single affidavit is signed by a witness 

previously disclosed and deposed. 

Respondent has failed to identify any issue on which additional discovery is necessary or 

appropriate. The additions to the Complaint are straightforward and, while they are new to the 

Complaint, they are not new to this litigation, but merely a recitation of facts already covered 

during discovery, and the legal consequences thereof. 

Resolution of this case should not be further delayed. No further discovery is required for 

Respondent to be aware of the evidence supporting the additions to the Complaint- the contents 

of Schneider's deposition were known to Respondent before the Amendment, they were 

identified in the Amendment, and they have been reiterated here. 

WHEREFORE, the FAA requests that Respondent's motion to reopen discovery be denied. 

itted this 16th day of August, 2013. 

CHRISTOPHER R. STEVENSON 

Attorney 

Office of the Regional Counsel 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Response to Discovery Motion 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 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. 

9350 South Dixie Highway, 101

h Floor 

Miami, FL 33156 

Facsimile: (305) 670-7065 

& [}li)~fXLf u 

DONNAST ~\ Legal Assistant 

Office of the Regional Counsel 

.t.UG 1 6 

Dated