Robert Spitzer FAA Office ofRegional Connsel 1601 Lind Ave. SW Renton, Washington 98057 Telephone: (425) 227-1457 Facsimile: (425) 227-1007

# RECF~''ED SEP 

# 262013 HEARING 

# DOCKET

UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

Michael 

### J. Huerta, Administrator FederalAviationAdministration;

Complainant,

vs.

AlaskaAirlines; Respondent. FAA Case Number: 2011NM020013 FDMSNo. FAA-2013-0287
Judge Richard Goodwin

ADMINISTRATOR'S RESPONSE TO RESPONDENT'S MOTION FOR CLARIFICATION

The Administrator, through his representatives, hereby submits this response to the Respondent's Motion for Clarification sent1 on September 13, 2013. The Administrator submits thatthis motion is repetitive and not required in light ofthe Judge's manifestly clear order.

While the Respondent has titled its motion as a Motion for Clarification, this motion actually appears to be a motion for reconsideration as the Respondent has merelyresubmitted the arguments theypreviously made intheir Motion to Compel and subsequent Reply in Support ofMotionto Compel. The issues raised intheir instant motion were unambiguously ruled upon by the Judge in his Order Granting in Part and Denying in PartRespondent's Motionto Compel. Respondent appears to either be unwilling or unable to accept the Judge's decision.

1 The Administrator notes that the Motion for Clarification was not properly served in Accordance with 14 C.F.R. Part 13 upon the FAA.

Complainant's Response to Respondent's Motion for Clarification AlaskaAirlines- FDMS No. FAA-2013-0287 Page 1of4 ROBERT SPITZER, FAA ATIORNEY TEL: (425) 227-1417; FAX: (425) 227-1007Inthe instant motion, the Respondent seeks to compel the Administrator to supply an unredacted portion ofthe EIRto the Judge in this matter for in camera review, to determine whether the information sought should have been supplied, the same argument which was made inthe Respondent's original Motion to Compel and Reply in Support ofMotionto Compel. However, the Judge unambiguously rejected this suggestion inhis Order Granting in Part and Denying in Part Respondent's Motionto Compel: "The testimony and remaining documents fall withinthe deliberative process privilege and, as such, may remain confidential." Respondent appears to be simply unsatisfied with this decision, and despite their title of"Motion for Clarification" have simply restated the arguments concerning the EIRwhich the Judge dismissed previously.

The Respondent also attempts to reargue the Judge's decision that the FAA did not waive the deliberative process privilege. Questions about individuals' discussions and details oftheir participation during the preparation ofthe EIRremainprotected under the deliberative process privilege. The Judge's order in no way alters this fact. "The grant ofthe Motion extends only to the agency's EIR Checklist and related comments. My decision rests simply on the fact thatthis information has become public

....ButI do not find that the agency has waived any privilege thereby." Judge's Order Granting in Part and Denying in Part Respondent's Motion to Compel, August 30,2013. While the Respondent makes no secret ofits desire to obtainthis protected information and attempt to introduce it into evidence inthe trial ofthis matter, the fact remains that this information is protected, and not subject to release. The Judge's Order is limited only to the actual checklist, which had beenpreviously released. Since the further information sought by the Respondenthas notbeen already released, it is not subjectto release. The Order inthis matter demonstrates thatthe Judge was not convincedby Respondent's arguments in its first two filings on this issue and the instant motion contains no new arguments to support Respondent's desire to obtainthe privileged information.
Respondent's attempts tore-litigate the original Motion to Compel are unnecessary and simply waste valuable courttime. Since the issues presented inthe Respondent's Motion for Clarification have already been ruled uponbythe Administrative Law Judge in this matter, in his Order Granting inPart and Denying in Part Respondent's Motionto Compel, there is no need to clarify what is already abundantly clear.
Accordingly, the Administrator respectfully requests that the Respondent's Motion for Clarification be denied.

Complainant's Response to Respondent's Motion for Clarification Alaska Airlines- FDMS No. FAA-2013-0287 Page2 of4 ROBERT SPITZER_ FAAATTORNEY TEL: (425) 227-1417; FAX: (425) 227-1007Respectfully submitted this 20th day ofSeptember 2013.

DOUGLAS R. ANDERSON Acting Regional Counsel

By: Robert Spitzer Attorney Office ofthe Regional Counsel (AMN-7) Federal Aviation Administration 1601 Lind Avenue, SW Renton, WA 98057 (404)227-1417 (404) 227-1007 FAX E-mail: robert.spitzer@faa.gov

Complainant's Response to Respondent's Motion for Clarification Alaska Airlines- FDMS No. FAA-2013-0287 Page3 of4 ROBERT SPITZER, FAA ATTORNEY TEL: (425) 227-1417; FAX: (425) 227-1007

### CERTIFICATE OF SERVICE

I hereby certify that the foregoing Complainant's Response to Respondent's Motion for Clarification has been served viaFax and First-Class Mail this date, to the following:
Honorable Richard Goodwin Office ofHearings United States Department ofTransportation 1200 NewJerseyAvenue, S.E. Washington, D.C. 20590 Fax: 202-366-7536
Federal AviationAdministration ATTN: Hearing Docket Clerk Wilbur Wright Building Washington, D.C. 20591 Fax:202-493-5142
William 

### V. O'Connor Morrison & Foerster, LLP 12531 High BluffDrive San Diego, CA92130-2040 Fax: 858-720-5125 Jeremy Ross Senior Attorney AlaskaAirlines, Inc. P.O. Box 68900- SEAZL Seattle, WA 98166 Fax: 206-392-5468 //

Dated this 20th

### dayofSepte~~**~/** Offite ofRegional Counsel (ANM-7) FederalAviationAdministration 1601 Lind Ave. SW Renton, WA98057 (425) 227-2160

Complainant's Response to Respondent's Motion for Clarification AlaskaAirlines- FDMS No. FAA-2013-0287 Page 4 of4 ROBERT SPITZER, F AAATTORNEY TEL: (425) 227-1417; FAX: (425) 227-1007