D 

SEP 2 1 2016 U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINTON, DC NG DOCKET 

In the Matter of: 

FELTS FIELD AVIATION 

Respondent 

) 

) 

) 

) 

) 

) 

Docket No: FAA-2015-3307 

CaseNo: 20I5WP9I0090 

RESPONDENT'S MOTION TO COMPEL 

The Respondent, by and through its attorneys, BENJAMIN L. WYBORNEY and 

MARK J. CONLIN, move the Court for an Order to Compel Discovery in the above 

referenced matter. 

GROUNDS 

The Complainant is withholding "facts known, or opinions held, by an expert who 

any other party expects to call to testify at the hearing." 14 C.F.R. § 13.220(e). 

BASIS 

On October 13,2015. the Respondent's attorney sent Interrogatories and Requests 

for Production by Certified Mail to the FAA. On October 16, 2015, the FAA received 

these requests. On July II, 2016, just prior to a July 12, 2016 informal conference on the 

matter, the Respondent's attorneys received the Complainant's response to the 

Respondent's Interrogatories and Requests for Production. 

The Respondent's Interrogatory No. 3 was; "[f]or each expert Complainant 

intends to call at the Hearing, provide a Curriculum Vitae or other documents reflecting 

the expert's professional qualifications." The Complainant's response was; "[t]he 

Complainant intends to call Eric Wells as an expert witness. A copy of Mr. Well's [sic] 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-20 15-3307 

Case No. 20 15WP910090 Page I of 4 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
expert report and curriculum vitae is included in Exhibit C-2." Further, Exhibit C-1, of 

the Complainant's Response to the Respondent's Interrogatories, the Enforcement 

Investigative Report (EIR), was very heavily redacted. 

Due to the umeasonable level of redaction, at the July 12, 2016 informal 

conference, the Respondent's attorneys moved for more complete production and the 

production of a privilege log. On July 14, 2016, this Court issued an order, ordering, 

inter alias, that the Complainant serve a modified redacted copy of Exhibit C-1 or a 

privilege log justifying the redactions to the current Exhibit C-1 by July 22, 2016, and 

that General Discovery is extended by two weeks from August 30,2016 to September 16, 

2016. 

On July 21, 2016, the Respondent's attorneys received a privilege log and a 

supplemented Exhibit C-1. The supplemented Exhibit C-1 contained an additional four 

pages of documents, some additional disclosure of redacted information, and a privilege 

Jog. The four additional pages of documents contained the first page of the EIR, a (FAA) 

FORM 2150-5 EA and three pages of very heavily redacted supplemental information. 

The first eight pages of the supplemented Exhibit C-1, which includes the privilege Jog 

and the additional four pages of documents, are found at Exhibit A to this Motion. 

The FORM 2150-5 indicates that, while Ms. Simone Clinton is the reporting 

inspector, Mr. Eric Wells, the Complainant's expert witness, is the signatory of the 

Enforcement Investigative Report (EIR) as the Team Coordinator. Exhibit A, page 3. 

Further Mr. Eric Wells, the expert witness, is also the signatory of the EIR's Regional 

Division Review as the Approving Official. Exhibit A, page 3. The EIR is essentially 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 I 5-3307 

Case No. 2015WP910090 Page 2 of4 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
the research product of the FAA's expert witness, containing his "facts known, or 

opinions held." 

On September 13, 2016, based on the fact that the EIR is the research and 

investigative product of the expert witness, and that pursuant to 14 C.F.R. § 13.220(e) 

Scope of discovery., " ... [a] party may discover facts known, or opinions held, by an 

expert who any other party expects to call to testify at the Hearing.", the Respondent's 

attorneys requested an unredacted copy of the EIR. The Respondent's attorneys' request 

to the Complainant is found at Exhibit B to this Motion. 

As of 12:00 pm, PDT (3:00pm, EDT) on September 16, 2016, the Respondent's 

request for documents containing "facts known, or opinions held" by the Complainant's 

expert witness has met with silence. Consequently, pursuant to 14 C.F.R. § 13.220(m) 

Motion to compel discovery, the Respondent's attorneys respectfully move that the 

Complainant be compelled to produce documents that are properly discoverable. 

In the alternative, in accordance with the Due Process spirit of the Brady Rule, the 

Complainant, a state actor, acting in a prosecutorial capacity to affect an administratively 

imposed civil penalty should be required to disclose exculpatory evidence. The redacted 

portions of the EIR apparently contain such exculpatory evidence; the paragraph 

headings indicate there is redacted information on "Reliability of Evidence," "Conflicting 

Evidence," and "Other/Mitigating, Extenuating, or Aggravating Factors." Exhibit A, 

page 3, 4. 

More specifically, in Bradv, the Supreme Court held that the Due Process Clause 

of the Fifth Amendment requires disclosure of exculpatory evidence "material to guilt or 

punishment" known to the government but unknown to the defendant in criminal cases. 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation. Inc. 

Docket No. FAA-20 15-3307 

Case No. 20 \5WP9!0090 Page 3 of4 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
See Brady v. Maryland, 373 U.S. 83, 88 (1963). While acknowledging that this is not a 

criminal case; Due Process is still required since it is an administrative adjudication with 

the possibility of the deprivation of property interests. See Bd. of Regents of State 

Colleges v. Roth, 408 U.S. 564 (1972). 

Because Due Process is required, and the Complainant, by its own 

characterization (FAA Order 2150.3B, FAA Compliance and Enforcement Program, is 

littered with the term), is '"prosecuting" an enforcement action that could deprive the 

Respondent of a property interest, then the government should be compelled to disclose 

its exculpatory evidence. 

Based on this analysis, the Respondent's attorneys requested an unredacted copy 

of the EIR. Exhibit C. The Complainant refused to provide the information. 

Consequently, the Respondent's attorneys respectfully move that the Complainant be 

compelled to produce documents that contain exculpatory evidence. 

CONCLUSION 

For the foregoing reasons, this Court should grant the Respondent's Motion to 

Compel. In the alternative, this Court should order an in camera review of the redacted 

material to determine whether it contains exculpatory evidence. 

RESPECTFUL!. Y SUBMITTED this 16th day of September 2016. 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case No. 20 15WP91 0090 

CONLIN, MALONEY & MILLER 

/::-:r~~~--:7 

Page 4 of4 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

! .S. !lEP.,RT~lENT OF TRANSPORTATION 

OFFICE or HEARINGS 

WASillNGTON. ll.C. 

REG 

MJC 

CONLl;\1, M.-\LOt<EY & ;..1!LU::n 

D\.K'ke! No: F i\A-2015-3307 

Case J\io: 20 l5\\.-'Pt)I0090 

Judge J .E. Sulllvan 

('(H!PLAINANT'S SLI'PLEMENTAL RESPONSE TO RESPONDENT'S FIRST SET 

OF INTERROGATORIES AND REQFESTS FOR l'RODtiCTION m· I)OCtiMENTS 

]l:ll.ri~-j~) -\. -\h:;\~d! 

.\...::ung -\Ssi:;tan: Clltel'(ounsd i(q- Fnfnr·ccnlcnt 

StoUc: 

Fnl\,n:cmtiH !},.ision_ V.'~._•c;rl!m [ '-' ·w-, 

J-'_\J. Bn\. CJ:2(J(l" 

!.'-'" C ... \ t)0009-20fi7 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-20 15-3307 

the !C•IIuwing suppk-:mema1 re~ponse ts;) 1.ht· 

Case No. 2015WP910090 Exhibit A: Page 1 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
C-l 

Doclnnent Type 

.nfllrcemt:ni 

'.!nvc'Sllgati\\ . .' 

Repon 

Enforcement 

ln\\~Stigativc 

Report 

C'-l. Enfmcentcnt 

lnvestlg;;ti vc 

Repon 

( ;·::j_--~--Fn f();;e ment 

pag:"' -, : !nvcstigatih' 

!~q>on 

: l!n·c~tipuivc 

: Report 

MOTION TO COMPEL DISCOVERY 

In the \1atterofFelts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

EXHIBIT A 

Matter 

\J:,<~f\-.20!5 Simone- Author's 

! Clinton opinion 

rt.~garding 

regulations 

viol~ted rutd 

sanction, 

Simone 

Clintcm opinion 

regarding 

sanction. 

Author's 

( 'tinw.n opinion 

regarding 

possible 

theories of 

the case and 

sanction. 

opLnion 

regarding 

possible 

theories of 

the ca':ie and 

sanction. 

Clinton opinion 

regarding 

possible 

theories of 

lhe ca;;e and 

sanction. 

Privilege 

and 

Deliberative 

and 

Deliberative 

and 

Deliberarive 

and 

i Deliberative 

an.d 

Deliberative 

Case No. 20 15WP91 0090 Exhibit A: Page 2 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

::·hlFO~·: -:EME01T lNVEST!G.~.T!VI? 

f:f'.:>ORT 

i 

' 

'!'; 

-----~" -·--· 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

f)A1A 

. 22 

'·''\ 

Case No. 2015WP91 0090 Exhibit A: Page 3 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

Drug Abatement i..li'IISlO!'l 

SINGLE LEGAL ENFORCEMENT ACTION 

SECTION B 

Case Number: 2015VVP910090 

Statement of Case 

Felts Field AvlatlOf\ inc. :sa 135 certificate 11o!der (GFVA247E). Operations 

Specification A449 certii:es that the operator wilt comply with the requirements of 14 

CFR 120 and 49 CFR part 40 for its Drug and Alcohol Testing Program.(IOP 

On April 7 20i5, an mspection oi' Fe!ts F1eld Aviation. Inc.'s Antidrug and Alcohol 

M1suse Prevention Program was conducted. As a result of the inspection Letter of 

Investigation (file number 2015\IVP910090) was 1ssued on April 16. 2015 (lOP 2}. and 

t~esponse dated Apnl27. 2015 was recerved {lOP 3) 

According to 14 CFR 120,105: 

Each employee_ induding any assistant helpe; or mdividual in a training status, who 

n~·~mmo a safety-sensitive function listed in tll!S section dlrectly or by contract 

imduding by subcontract at any tier; for an employer as defined in this subpart must be 

subject to drug testing under a testing program implemented in accordance with this 

subpart This includes fu!!-t1me. part-th11e, temporary, and intermittent employees 

rec1ar<Jie:se of the degree of supervisron The safety-sensitive functions are: (a) 

crewmember duties. 

According to 14 CFR 120.215(a): 

Each employee. rncluding any assistant helper or individual in a training status. who 

performs a safety-sensitive function lrsted in this section directty or by contract 

(including by subcontract at any tier} for an employer as defined in this subpart must be 

subject to alcohol testing under a testing program implemented in accordal'lce with this 

subpart This includes lull-t1me. part-time. temporary. and intermittent employees 

regardless of the degre<1 of supervis1on. fhe safety-sensitive functions are: (a) Flight 

crewmemb-er dut!es 

Violation Description: 

On ,July 2. 2007. R1charo Webber completed the Ground Trarning Program foraircrafus. 

Cessna T-210 and Cessna C182RG (lOP 4) Mr Webber submitted to a Department of 

I ransportation (DOT) pre-employment test and was verified negative on May 28. 2008. 

(lOP 5) A review of Felts Freid Aviation. Inc.'s Duty and I= light Time Records from April 

9. 2013 to March 20. 2015 shows Mr. Webber performed a safety-sensitive function as 

a Pilot (lOP 6) Mr Webber was never added to the random drug and alcohol testing 

pool until April 6. 2015 .. (lOP 7 & 8) As a result Mr \IVebber missed random selections 

since May 2008 but more recently on quarterly selections conducted on April 5. 2013 

(lOP 9 & 17) . .July 5. 2013 (lOP 10 & 17) October 4. 2013 (lOP 11 & 17), January 3. 

2014 (lOP 12 & 17) Apnl4 2014 (lOP 13 & 17). July 4. 2014 (lOP 14 & 17).0ctober 3, 

2014 (lOP 15 & 17). and January 2. 2015 (lOP 15 & 17) Mr. Webber was not in the 

random testing pool for these selsctions S{1 he had no chance of being selected. (lOP 

7) 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 

1 

MOTION TO COMPEL DISCOVERY 

In the Matter ofFe!ts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case No. 2015WP91 0090 Exhibit A: Page 4 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave .• Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

2\lilh,t c"·i DocketNc FAA .. ::'\J1b-3:.HJ7 Drug Abatement D1visiorr ~ 

SINGLE LEGAL ENFORCEMENT ACTION 

~orting Evidence: 

" Richard V\/ebber's ground rrammg record dated 2, 2007 for aircrafts, Cessna 

T210 Nand Cessna C182RG. (lOP 4) 

First Advantage pre-employment verified negative test result dated May 

2008. specimen !0 # 0446011565 (lOP 5) 

' Felts Field Avtation. inc.'s Duty and Flight Time Records for Richard Webber 

from Aprii 9. 2013 through March 20. 2015. (lOP 6) 

Felts Fie!d Aviation. lnc 's act;ve etnph:::;vee list fwm Fnst Advantage dated fv1ay 

14. 2015. (lOP 7) 

' Letter from OERILarry Schmeddtng dated April 7. 2015. (lOP 8) 

' First Advantage enrollment history summary report for Felts Field Aviation, Inc. 

for the second quarter of 2013, dated April 5, 2013. (lOP 9) 

' First Advantage enrollment history summary report for Felts Field Aviation. Inc. 

for the third quarter of 2013, dated July 5, 2013. (lOP 10} 

F:rst Advantage enrollment h:story summary report for Felts Field Aviation, Inc. 

lor the fourth quarter of 2013. dated October 4, 2013. (lOP 11) 

" Frrsl Advantage enm!!ment h1story report tor Fetts Ffeld Aviation. Inc 

for the first quarter of 2014, dated January 2014. (lOP 12) 

• r trs! Advantage enrollment history summary report tor felts Field Aviation. Inc. 

for the second quarter of 2014. dated Apri14. 2014. (lOP 13} 

" First Advantage enrollment htstory su111mary report for Felts field Aviatron, Inc. 

for the third quatter of 2014, dated July 4. 2014. (lOP 14) 

, First Advantage enrollment history summary report for Fells Field 1\via!ion, Inc. 

for the fourth quarter of 2014, dated October 3, 2014. (lOP 15) 

• First Advantage enrollment htstory summary reportfor Felts Field Aviation, Inc. 

fm the first quarter of 20'15. dated January 2. 2015. {lOP 16) 

• Rando111 Selection elates lor Felts Field Aviation from January 2013 ~April 2015 

from F<rst Advantage (lOP 17) 

Factors Affecting Sanction 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 

2 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case No. 2015WP910090 Exhibit A: Page 5 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

Drug Abatement Divisio~-~t-:rJ:t c;-, 

SINGLE LEGAL ENFORCEMENT ACTION 

Whether the Violation Was Inadvertent and Not Deliberate 

Certificate Holder's level of Expenence and Responsibility 

Felts F1eld Aviation, \nc. is a ·135 certificated air carrier based in Spokane, WA under the 

parent company of Empire Lumber. They are also associated with Idaho Chip & Fiber 

and ParK Ranch Land & Cattle Company This was the company's fourth inspection, the 

last being on April 9. 2013 They have two a~rcraft, N2AK and N6i6EL, on their D085. 

Felts Field Aviation. inc. also has a Part 145 certificate and has two Forest Service 7 

contracts with the State of Washfngton. 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 

3 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case No. 2015WP91 0090 Exhibit A: Page 6 of 8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

Cx:n;bit C>; Onck~t No. fA/'1~20~5-3307 Drug Abatement Division 

SINGLE LEGAL ENFORCEMENT ACTION 

Violation History 

Felts Fteld Aviation, Inc, does not have a history of vtolations tnvolving its Drug and 

Alcohol Testing Program 

I . • ' ~ • I 

~ 

Multiple Violations/Acts 

What Corrective Action Has Been Taken? 

Other Information 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 

4 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No, F AA-20 15-3307 

Case 7\h 20 15WP91 0090 Exhibit A: Page 7 of 8 

Conlin, Maloney & Miller 

421 W, Riverside Ave,, Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

FXh(bi\ C.'! f}(;::f:EH N:J FAA-2(!1b<J-:lo/ Drug Abatemet1t Division 

SINGLE LEGAL ENFORCEMENT ACTION 

Recommendation About the Type of Sanction 

Reasons Justifying Recommendations for Enforcement Action and (Type of) 

Sanction 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 

5 

MOTION TO COMPEL DISCOVERY 

In the Marter of felts Field Aviation, Inc. 

Docket 1\o. FAA-20 15-3307 

Case No. 2015WP910090 Exhibit A: Page 8 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 99201 

(509) 624-3020 
Mark J. Cou.liu 

1'Jmmru; R M."tlouey (1996) 

Tbw:nw; J. Miller 

Beujantin L. Wyborney 

September 13, 2016 

EXHIBIT B 

CONLIN, MALoNEY & MILLER 

A'ITOR.''EYS AT LAW 

421 W. RIVERSIDEAVEh"UE,SUJTE9ll 

SPOKAl'IF.., WASHL~GTON 99201 

Fatimah Stokley. Attom~?y 

EnfOrcement Division. Western Team 

P.O. Box 92007 

Lo;-; Angeles, CA 90009~2007 

RE: Fdts Field Avlation 

NTSB Docket No·. FAA-2015-3307 

FAA Case No: 2015WP9!0090 

.Ms. Stokley. 

l'dapbo:nel Oi00}-&24·SWU 

Faco<imile: (50$) 623·1650 

N..rt fur Serrieeln' N~ 

blw®cu~mla:w:finn.net 

As \\·C have previously discussed. we have received the FAA's Supplemental ResponSe to our 

First Set of Interrogatories and Requests lilr Production. We appreciate the Supplemental 

R-:sponse. however. wr.:: had hoped tOr more. 

In ;.our response to the Respondent's Interrogatory No.3: ""For each expect C,omplairumt intends 

to cal! at the Hearing, provide a Curriculum Vitae or other documents reflecting the expert's 

pro1tssional qualiii.cations." You answered. '"The Complainant intends to call Eric Wells as an 

expert witness. A copy of Mr. Well's [sic] expert report and curriculum vitae is included in 

Exhibit C-2:' This response cstah!ishes ~'1r. \},-'ells as an expert witness that the FAA intends to 

call at the Hearing. 

Mr. Wells. the FAA's expert witness. is both the signatory of the Enforcement Investigative 

Report (E!R) (Supplemental Response Exhibit C-l, page l) as the Team Coordinator and the 

signatory of the EIR·s Regional Division Revie\v U!") tht: Approving Official (id.). The EIR is 

essentially your expert witness· s product. containing his kno\lvlJ facts and opinions.. 

Pursuant to 14 C .F.R. § 13.220( e) Scope of discovery., ·· ... A par!y may discover facts known, 

or opinions held, by an expert -who any other party expects to call to testify at the Hearing."' 

\\'c· re~pcctfhll~y request an unredat:ted copy th~ EIR which we believe contains "'facts known, or 

opinions hckr' by your expert wiint:-s;;, 

If yuu have a11y questlons~ please do not hesitate t.o contact me. 

Cordially yours. 

Conlin. !'v'faloney & Miller 

/~/~/~7 Ben Vv' ybomcy / 

cc: Respondent. Felts. Field Aviation 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case \lo. 2015WP910090 Exhibit B: Page I of! 

Page 1 of I 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, WA 99201 

(509) 624-3020 
MarkJ. Couli.u 

TbomiD~ B. Maloney 0996) 

Tiwm.SI! J. Millet' 

&upunin L_ Wyb6tlley 

August 9, 20 !6 

EXHIBIT C 

CONLIN, MALONEY & MILLER 

421 W.RIVERSIDE AV'ENL'E, SUm; 911 

SPO"I(Ah'E, WA.."iHL"JGTON 99201 

Fatimah Stokley, Attorney 

Enforcement Division. \'~/estern Team 

P.O. Box 92007 

l.os Angeles. CA 90009-2007 

RF: h:-lts Field A dation 

'iTSB Docket No: Fi\A-20 J.j.3307 

FAA Case No: 2015WP910090 

Ms. Stokley. 

Te.leplWM: (Jro9}-624-sn:ro 

FacsU:!aile: (Soo) S23-1SSO 

Not fbr Servioo ot· N(lti!;:e 

We have rec~ived the FAA's Supplemental Response to our First Set of lnterrogatories and 

Requests for Production. We appreciate the Supplemental Response, however, we had hoped lbr 

more. 

first withholding of discoverable material issues aside. it appears that 1he FAA has added .t{)ur 

rages to Exhibit C-1. The original Exhibit C-1 contained 37 pages. The new Exhibit C-1 

contain::; 41. However~ it appears that the f Ai\ has not internally differe~tiated the t'triginai 

Exhibit C-1 from the supplemented C-1 other than the location of !he lal{el "Bxbibit.C·l"; In the 

original, the footers contain "Exhibit C-1" and a page numl?er. In !he supplement the headers all 

indicate "Exhibit C-1", but the page numbers remain in the footer. This has avery bigb potential 

10 cause confusion as this matter proceeds. Would it be possible-to indicate either in the foote~; 

or in the header, ·'Exhibit C-1 (Supplemented)" or if the situation requires, "Exhibit C-1 

tSupplcmcnt I)"? 

Second. \\-e find the supplemented rcdactc;d material and entirely new pages s()rnev.ilat wanting. 

As we arc dlscussing the Enforcement Investigative Report (EIR), l have inclUded. guidance from 

FAA Order 215038, Change I I !Order 2150.38). 

According to Order ~150.3.8, Chapter 8. Paragraph J.b.(2) Factors .affCCting Sanc:tiont ''FA'-\ 

investig<.:~tivc persmmd analyze \Vhdher each nf the factors- in chapter 7~ paragraph 4 or 

Appendix C is relevant and applies to the ease." This paragraph goes on to indicate !hat '"[i]f a 

factor is rdevant to the Ctt.'-'e. FA/~ investigative personnel ~xplain in section B of the EIR. how 

the i8.cts and circumstances support the applicability of that fhctor to the alleged viOhitions. It is 

our imention to discover the ··facts and circumstam.:es·- that the FAA investigative personnel:are 

considering. Given the amount of the proposed ciVil penalty, \\'e cannot understate the 

importance of double~checking these ··facts and circumstances". 

r\n example ln point is the Certificate Holdef's Level of Experienc_e and Responsibility section, 

Exhibit C-1. page 4. This section indicates. "Felts Field Aviation, Inc. also .htts a Part 145 

Ccrtillcatc '"'d has two Forest Service Contracts with !he State of \V!JShhigton." This 

iniOrmation is incorrect Felts Field Aviation does .not maintain a Part 145 Cerii:Qcate or any 

contracts with thl.' State of Washington. If there- arc errors in this section, what-other __ errors are 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case No. 20 15WP91 0090 Exhibit C: Page I of 6 

Page I of6 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBITC 

concealed by redactions'' Further. these erroneous facts are quite possibly affOi'ting the proposed 

sanction_ This is exactly the justilication f(>r discovering all of the facts on which the FAA is 

basing the sanction. 

Further. Order 215!UB_ Chapter 8 .. Paragraph h.(3l- Other lnfonnation., indicates !hat "[iJfFAA 

irwcsligative personnel han~ any opinions or f(:dings about the case, they state them in section B 

and label them as opinions:· The ElR includes a heading for "Opinions". A plain reading of the 

E1R headings. in light of the regulatory guidance. would indicate that opinions reside in the 

Opinions section. not in any other heading. certainly not under headings that are historical or 

liKtual in nature. Redactions of inionnation under factual headings are inappropriate. The 

Respondent is entitled to discover d1c facts under the factual headings and to either· t'tgtee with 

those tl:tcts or dispute them. 

"lost importantly. the Privilege Log contains live blanket en.tries for 26 individual redactions. 

The purpose of a Privilege Log is to provide sufficient information to enable opposing parties 

and the Court to detennine whether each element of the asserted privilege is satisfied;· a blanket 

claim of the asserted privilege does not satistY the burden of proof. These blanket assertions .of 

privileged pre-decisional and deliberative opinions are inappropriate, especially when 

considering that the FAA is applying these tL"ertions to prima facie factual sections of the E!R. 

Considering redaction 2. Exhibit C- l page 3_ Nature of the Violation, Including How Safety 

Was Affected: we believe this redaction is inappropriate. Chapter 7., Paragraph 4.a. Nature of 

Violation.. identities three elements: operational versus non-operational, carelessness_ or 

recklessness. and special aggravating or mitigating factors. \Ve request that-the FAA disclose the 

characteriwtion of the violation: whether it was operational or non-operational careless or 

reckless. and v.:hether there arc aggravating or rnitigating circumstances. An invCStigator~s 

obsen·;:l!ions as to the Respondent's actions regarding these elements are t"ilcts. These facts 

afkct the sanction and the Respondent is entitled to discover on what basis the :f;-'\/\ is 

det~:m1ining the sanction. 

f.urther. with the inclusion of"lncluding How Safety Was Affected'', it appears that tl)e FAA has 

deviated !rom the prescril:x:d !(mnm of an E!R. We believe the redaction ofthese facts is 

inappropriate. What did the investigator observe that anected safety? The~ factors appear to 

affect the sm1ction and the Respondent is entitled lO discover on what basis the FAA is 

de1ennining the sanction. 

('onsidering redaction 3. Exhibit C-1 ~ page 4. there arc tOur redactions on this page:~ but only one 

entry to the Privilege Log. This is inappropriate. Each redaction. is signific;;tnt and merits·an 

independent entr:y on the Privilege. Considering each heading specifically: 

• Considering W1tether the Violation was Inadvertent and Not J:)eliherate; we believe this 

redaction is inappropriate. Chapter L Paragraph 4.b. Whether .the Violation was 

Inadvertent and Not Deliberate._ indicates that "[i]f a violation is deliberate or not 

inadvertent, a sanction at the upper end of the range or exceeding the range for tha!type of 

violation generaHy is appropriate.·· An investigator"s observations as to the- Respendcnrs 

actions indicating deliberateness or inad\'ertcn..:c are facts, not opinions or impressions. 

These facts affect the sanction and the Respondent is entitled to discOver on what basis the 

FAA is determining the sanction. The FAA's assertion that redaction 3 contains "theories 

of the case'" is inappropriate to the prescribed subject ior this heading. 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 I 5-3307 

Case No. 2015\VP910090 Exhibit C: Page 2 of6 

Pag.;: 2of6 

Conlin, Maloney & Miller 

421 \V_ Riverside Ave., Ste 91 I 

Spokane, WA 99201 

(509) 624-3020 
EXHIBITC 

• Considering Attitude of the Violator: v.·e believe this redaction is· inappropriate. Chapter 7 .. 

Paragraph -+.d. Attitude of the Violawr.. indicates that "[a] prior violation history may 

:;uggest that a person has a poor compliance disposition~ which ·is an agb,rravating i'actoL 

Furthcnnore. a person who cornrnils an act or omission contrary to statutory or regulatory 

requirements after recdving notice through a prior administrathre action or counseling that 

such conduct is in violation of those requirements might well be regarded as having a poor 

compliance disposition ... An investigator· s observation .. -> of violation history and! or notice 

through prior adrninistrative aLtion or counseling are facts, not opinions or impressions. 

These facts affect the sanction and the Respondent is entitled to discover on what basis the 

FAA is determining the sanction. ·n1c FAA's assertion that redaction 3 contaiils ~"theories 

of the ca~e-- is inappropriate to the prescribed subject for this heading. 

• Considering Degree of Hazard; we believe this redaction is inappropriate. Chapter 

Paragraph 4.e. Degree of Hazard .. indicates that ''[tjhe degree of hazard may be increased 

as a result of the interplay of the op¢rational envirom11ent (for example~ weather conditions~ 

congested wrsus sparsely populated areas) and the nature of the threat to safety (to the life 

or property of another, including those in the aircraft being operate~ to other aircraft~ or to 

persons or property on the surface) that the misconduct presents.~' An investigator~s 

observations of the operational environment arc facts, not opinions or impressions. These 

tacts a1Tcct the sanction and the Respondent is entitled to discover on what basis the FAA 

is determining the san<ction. The FAA's assertion that redaction 3 contains "theories of the 

case" is inappropriate to the prescribed subject for this heading. 

• Considering Action Taken by the Employer or Other Authority; we believe this rcdai.1.ion is 

inappropriate. Chapter 7 .. Paragraph 4.f Action Taken by Employer or Other Authority., 

indicates two dements "whether the alleged violator's employer has taken disciplinary 

action and whether cri1ninal prosecution is invo1ved. 1

' An investigator's observations of 

disciplinary actions or criminal prosecution are facts, not opinions or impressions. These 

facts atTect the sanction and the Respondent is entitled to discover on what basis the FAA 

is detennining the sanction. The FAA's assertion that redaction 3 contains "theories of.the 

case" is inappropriate to the prescribed subject t{lr this heading. 

Considering redaction 4, Exhibit C-1, page 5, there <rre nine redactions on this pag~~ but only one 

entry to the Privilege Log. This is inappropriate. Each reda<.,'1:ion is significant ·and merits. an 

independent entry. Considering each heading specifically: 

• Considering Lse of a Certificate; vw believe this redaction is inappropriate, Chapter 7., 

Paragraph 4.g. Use of a Certificate .. indicates that "l tjhis factor relates to the nature or kind 

of activity or operation involved at the time the violation was committed. Whether the 

certificate holder was engaged in student. private~ commercial~ or airline activity bears on 

the severity of the sanction:· An investigator's observations of. the ResPondent's 

operations are tflcts. not opinions or impressions. These facts anect the sanction and the 

Respondent is entitled to discover on what basis the FAA is determining the sanction. The 

FAA· s assertion that redaction 4 contains ·•theories of the case" is iP,appropriate· to the 

prescribed subject for this heading. 

e Considering Decisional Law: \Ve beli~ve this redaction is inappropriate. .Chapter 7., 

Paragraph 4.\. Decisional Law .. indica1es that priority of guidance for FAA decisionmaker 

Jecis!ons. An investigator's identific-ation of these decisions are facts, Further~ ·'FAA 

F~·lts held Aviation 

NTSB Dm:J...d No: fAA-20!5-3307, FAA Ca:;e No: 20!5WPI1!0090 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-20 I 5-3307 

Case No. 20 I 5WP91 0090 Exhibit C: Page 3 of 6 

Page3 of6 

Conlin, Maloney & Miller 

42I W. Riverside Ave., Ste 911 

Spokane, W A 9920 l 

(509) 624-3020 
EXHIBITC 

dccisionmaker decisions published after the issuance of this document that conflict with the 

policy in this order supersede this documem and arc controlling." The Respondent is 

entitled to discover on what basis the FAA is determining the sanction, and whether the 

basis of the sanction has been superseded. The FAA's asserti<:m that redaction 4 contains 

"theories of the case'· is inappropriate to the prescribed subject for this heading. 

• Considering Multiple Violations/Acts: we believe this redaction is inappropriate. The 

cun·cnt Order 21503B does not seem to address this heading, however, whether there are 

.\1ultiple Violations or ;\cts arc facts. Certainly, an investigator's observations of the 

Rcspnndcnrs actions regarding Multiple Violations or Acts are facts. These facts appear to 

al1ect the sanction and the Respondent is entitled to discover on what basis the FAA is 

determining the sanction. The F/\A 's assertion that redaction 4 contains "theories of the 

case" is inapprnpriate to the prescribed subject lor this heading. 

• CoiLsidering Ability to Absorb Sanction: we believe this redaction is inappropriate. 

Chapter 7 .. Paragraph 4j. Ability to Absorb Sanction., indicates that "(w]hile the FAA, does 

not allow financial circumstances to excuse any violation, it does coa"'ider a carrier's size 

and linancial strength in choosing the appropriate sanction amount The difference in the 

penalties t1xcd in the law ior large and small business concerns recognizes this fact .. , 

Thcrefclfe, the FAA uses air carrier size as one means of ensuring a relatively equivalent 

dc~crrem effect on each air carrier that violates the same FAA regulation. . . For all 

entities and individuals, the Fl'u\ considers ability to pay a civil penalty and the effect a 

ci\·il penalty will have on a person's ability to continue in business_ to the extent it knows 

such infon11ation." Facts that the FAA is using to detennine the size of the Respondent and 

consequently, the amount of the sanction arc discoverable. These facts are not an 

investigator's opinion. These lacts affect the sanction and the RespondenUs entitled to 

discover on what basis the FAA is determining the sanction. The FAA's assertion that 

redaction 4 contains "theories of the case" is inappropriate to the prescribed subject for this 

heading. 

further, reviewing our teleconference on Thursday, August 4, 2016, this is one of the 

topics we discussed.: whether the Respondent" s financial documents where accup;te and 

current. Considering this concern. the Respondent is entitled to discover what information 

the FAA is using to ensure it is correct and current 

• Considering Consistency of Sanction: we believe this redaction is inappropriate. Chapter 

7 .. Pamgraph 4.k. Consistency of Sanction .. indicates that one of the FAA's goals is "to 

achieve relative consistency in imposing similar sanctions for similar violations.~· An 

investigator's identification of consistent cases are facts. The Respondent is entitled to 

disco,·er which cases are identitied as consistent These fact~ .affect the sanction and. the 

Respondent is entitled to discover on what basis the FAA is detennining the sanction. The 

FAA's assertion that redaction 4 contains "theories of the case" is inappropriate to the 

prescribed subject for this heading. 

• Considering Was the Violation Voluntarily Reported; we believe this redaction is 

inappropriate. Chapter L Paragraph 4.L Whether the Violation was Reported Voluntarily., 

indicates that an entity may "report voluntarily apparent violations fmd receive Jesser 

enforcement action provided certain criteria are met." V./hether or not a. violation is 

\oluntarily reported is a tact. not an opinion. This fact affects the sanction and the 

Fdb Field A\ iation 

\iTSB Docket No: FAA-2015-3307. FAA Case No: 20l5\VP9lOD90 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case No. 20 15WP91 0090 Exhibit C: Page 4 of 6 

Page 4 of6 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBITC 

Respondent is entitled to discover on what basis the FAA ls determining the sanction. The 

FAA· s assenion that redaction 4 contains '1heories of the case" is inappropriate to the 

prescribed subject i(lr this heading. 

e Considering \Vhat Corrective Acth.m Has Been Taken; we believe this redaction is 

inappropriate. Chapter 7., Paragraph -l.m. Corrective Action., indicates that "[t]he FAA 

e-onsiders corrective action a mitigating factor in determining sanction provided the 

corrective action exceeds the minimum regulatory or statutory requirements. The amount 

of credit given in setting a sanction depends on the extent and timing ·of the _corrective 

action. that is, how extensiw was the corrective action and how quicldy was it taken. 

Implementing new procedures that are above those required under the FAA's regulations to 

prcwnt future violations ordinarily is considered a mitigating !actor in detem1ining an 

appropriate sanction:· An investigator's observations of'. the Respondent's actions 

regarding corrective ru:tions are facts, not opinions. These facts affect the. sanctiOn and. the 

Respondent is entitled to discover on what basis the FAA is determining the sanction, The 

I AX s assertion that redaction 4 contains "theories of the case" is inappropriate to the 

prescribed subject !<Jr this heading. 

Further. reviewing our telc~onfcrencc on Thursday~ August 4. 2016, this is exactly the 

inlimnalion that Ms. Killingham requested. Specifically, she wanted to know what 

COITcctive actions had Felts Field Aviation taken to cure the violation. 111at Ms. 

Killingham would request the ini(Jrmation indicates that she suspects the infurmation in the 

E!R is either inaccurate or outdated. Considering this concem, the Respondent is entitled 

tl) discnver this inhmnation to ensure lr is correct and current 

• Con:;idering Rcllabilit:y of Evidence~ we believe this redaction is inappropriate,. .Chapter 8.~ 

Paragraph 3.h.(3) Other inl(mnation .. indicates that ·'FAA investigative personnel set forth 

in section B any other mitigating, extenuating. or aggravating factors a!Jput the apparent 

violations:· A factor is "'[a]ny cin::umstance or inllccencc which brings about or contributes 

to a result. .. " (Black's Law Dictionary 6th Ed.) An investigator's observations of 

circumstances or influences that mitigate, extenuate~ or aggravate the violation are -fUcts. 

rhesc li\Cts affect the sanction and may even go to rebutting the relevance or materiality of 

evidence. The Respondent is entitled to discover on what basis the FAA is detem1ining the 

sanction. The FAA "s assertion that redaction 4 contains ~'theories of the case'~ is 

inappropriate to the prescribed subject tor tltis heading. 

Furiher. \vhilc acknov-·:fedging that this is an administrative law case7 hot a criminal case~ it 

is still an administrative prosecution in the pursuit of an administrative sanction. [ndeed, 

!' AA Order 2150 . .1 B is riddled with rderences to ''prosecution'' uf the enforcement action. 

As a prosecutorial agency. if the FAA. a State Actor, has eXculpatory· dvidence} it has a 

duty to disclose it To \~v·ithhold exculpatory eYidence violates due process. 

• Considering Conflicting Evidence; we believe the redaction is inappropriate. Chapter 8., 

Paragraph 3.b.(3) Other infonnation .. does no\ specifically address conflicting evidence. 

However. an investigator's observaLions of conflicting eVidence are. facts. These facts 

appear to anect the sanction and may even go to rebutting the relevance or materiality of 

evidence. The Respondent is entitled to discover on what basis the FAA is determining the 

sanction. The FAA's assertion that redaction 4 contains ~•theories of the· caSe·~ 

inappropriate lo the prescribed subject f(lr this heading. 

Felts Fii..'ld Aviation 

NTSB Docket No: FA.-\-::?:015~3307, FAA Case N(): 20ISWP9l0090 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation. Inc. 

Docket No. F AA·20 I 5-3307 

Case No. 20 I 5WP91 0090 Exhibit C: Page 5 of 6 

Page 5 of6 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 9I I 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT C 

Again. while ae:knov.-ledglng that this is an ad1ninistrative lavv case~ not a criminal easel it is 

still an administrative prosecution in the pursuit of an administf'ative sanction" As a 

prosecutorial agency" if the FAA" a State Actor" has exculpatory evidence" it has a duty 10 

disclose it. To withhold exculpatory evidence violates due process. 

Considering redaction 5, Exhibit C-1. page 6, there are six redactions on this page, but only one 

entry to the Privilege Log. This is inappropriate. Each redaction is significant and merits an 

independent entry. Considering each heading specifically: 

• Con;.;idcring Other/Mitigating, Extenuating, or /\.ggravating Factors, we beljeve the 

redaction is inappropriate. Chapter 8., Paragraph 3.b.t3) Other infmmation., does not 

specitically address Other/Mitigating. Extenuating, or Aggravating Factors, but Reliability 

of Evidence does. An investigator's observations of circumstances or influences that 

mitigate. extenuate~ or aggravate the violation are facts. These facts affect t11e sanction and 

may even go to rebutting the relevance or materiality of evidence. The. Resporident is 

entitled to discover on what basis the FAA is determining the sanction. The FM~s 

assertion that redaction 5 contains -~theories of the case~· is inappropriate to the prescribed 

subject for this heading. 

m (\msidering Opinions. \Ve do not chaHenge the redaction of opinions of the author prop~rly 

labeled and located in Opinions section. 

• Cnnsidering Recommendation About the Type of Sanction, we do not challenge the 

redaction of recommendations of the author properly labeled and located in the 

Recommendation About the Type of Sanction section. 

• Considering Reasons Justifying Recommendations for the Enforcement Action and (Type) 

Sanction. we do not challenge the redaction of justification of recommendations that are 

properly labeled and located in the appropriate section. 

• Considering the unlabeled redaction. we believe this redaction is inappropriate. There is 

nothing indicating what infi:lflnation is redacted or the appropriateness of the redaction. 

• Considering Regional Sanction Recommendations. we do not challenge the redaction of 

regional sanction recommendations that are properly labeled end located in the "ppropriate 

section. 

We strongly object to the redaction of the above indicated items and request a copy of the EIR 

with the indicated redaclions removed. If necessary, pur:;uantto 14 C.F.R. § 13.220(m), we will 

pursue a Mj,_)tion to Compel. 

rr you ha\·e nn_y questions. please do not hesitate 10 contaet me. 

Cordially yours. 

Conlin. Maloney & Miller 

Ben W;home) 

cc: Respondent. Fells Field Aviation 

Fdb Fidd Aviation 

NTSB Dockt:t No: Fi\i\~2015~3307. FAA Case No: 20! 5WP9l0090 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-2015-3307 

Case No. 2015WP910090 Exhibit C: Page 6 of6 

Page 6 of6 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Motion to Compel Discovery has been served via 

facsimile (where indicated), email (where indicated), and Regular Mail on September 16, 

2016 to the following: 

Judge J. E. Sullivan 

US. Administrative Law Judge 

Otlice of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave, SE (E1l-310) 

Washington, DC 20590 

Phone: 202-366-6941 

Fax: 202-366-7536 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2W1000 

Fatimah Stokley, Attomey 

Federal Aviation Administration 

Office of the Chief Counsel 

Enforcement Division, Western Team 

P.O. Box 920007 

Los Angeles, CA 90009-2007 

Fax: (310) 725-6816 

Fatimah.Stokley@faa.gov 

DATED this 16th day of September, 2016 

Mark J. Conlin 

Attorney for Respondent 

421 W. Riverside Avenue, Suite 911 

Spokane. WA 99201 

(509) 624-3020 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINTON, DC 

In the Matter of: 

FELTS FIELD AVIATION 

Respondent 

) 

) 

) 

) 

) 

Docket No: FAA-20 I 5-3307 

CaseNo: 2015WP910090 

___________ ) 

RESPONDENT'S MOTION TO COMPEL 

The Respondent, by and through its attorneys, BENJAMIN L. WYBORNEY and 

MARK J. CONLIN, move the Court for an Order to Compel Discovery in the above 

referenced matter. 

GROUNDS 

The Complainant is withholding "'facts known, or opinions held, by an expert who 

any other party expects to call to testify at the hearing." 14 C.F.R. § 13.220(e). 

BASIS 

On October 13, 2015, the Respondent's attorney sent Interrogatories and Requests 

for Production by Certified Mail to the FAA. On October 16, 2015, the FAA received 

these requests. On July 11, 2016, just prior to a July 12, 2016 inforn1al conference on the 

matter, the Respondent's attorneys received the Complainant's response to the 

Respondent's Interrogatories and Requests for Production. 

The Respondent's Interrogatory No. 3 was; '"[f]or each expert Complainant 

intends to call at the Hearing, provide a Curriculum Vitae or other documents reflecting 

the expert's professional qualifications."' The Complainant's response was; "[t]he 

Complainant intends to call Eric Wells as an expert witness. A copy of Mr. Well's [sic] 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation. Inc. 

Docket No. F AA-20 15-3307 

Case No. 2015WP910090 Page 1 of4 

Conlin, Maloney & Miller 

421 W. Riverside Ave .. Ste 91 I 

Spokane, W A 9920 1 

(509) 624-3020 
expert report and curriculum vitae is included in Exhibit C-2." Further, Exhibit C-1, of 

the Complainant's Response to the Respondent's Interrogatories, the Enforcement 

Investigative Report (EIR), was very heavily redacted. 

Due to the unreasonable level of redaction, at the July 12, 2016 informal 

conference, the Respondent's attorneys moved for more complete production and the 

production of a privilege log. On July 14, 2016, this Court issued an order, ordering, 

inter alias, that the Complainant serve a modified redacted copy of Exhibit C-1 or a 

privilege log justifying the redactions to the current Exhibit C-1 by .July 22, 2016, and 

that General Discovery is extended by two weeks from August 30,2016 to September 16, 

2016. 

On July 21, 2016, the Respondent's attorneys received a privilege log and a 

supplemented Exhibit C-1. The supplemented Exhibit C-1 contained an additional four 

pages of documents. some additional disclosure of redacted information, and a privilege 

log. The four additional pages of documents contained the first page of the EIR, a (FAA) 

FORM 2150-5 EA and three pages of very heavily redacted supplemental information. 

The first eight pages of the supplemented Exhibit C-1, which includes the privilege log 

and the additional four pages of documents, are found at Exhibit A to this Motion. 

The FORM 2150-5 indicates that, while Ms. Simone Clinton is the reporting 

inspector, Mr. Eric Wells, the Complainant's expert witness, is the signatory of the 

Enforcement Investigative Report (EIR) as the Team Coordinator. Exhibit A, page 3. 

Further Mr. Eric Wells, the expert witness, is also the signatory of the EIR's Regional 

Division Review as the Approving Official. Exhibit A, page 3. The EIR is essentially 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation. Inc. 

Docket No. F AA-20 15-3307 

Case No. 2015WP910090 Page 2 of4 

Conlin. Maloney & Miller 

421 W. Riverside Ave., Ste 91 I 

Spokane, W A 9920 I 

(509) 624-3020 
the research product of the FAA's expert witness. containing his ··facts known, or 

opinions held." 

On September 13. 2016. based on the fact that the EIR is the research and 

investigative product of the expert witness. and that pursuant to 14 C.F.R. § 13.220(e) 

Scope of discovery .. ·· ... [a] party may discover facts known, or opinions held, by an 

expert who any other party expects to call to testify at the Hearing.", the Respondent's 

attorneys requested an unredacted copy of the E!R. The Respondent's attorneys' request 

to the Complainant is found at Exhibit B to this Motion. 

As of 12:00 pm, PDT (3:00pm. EDT) on September 16, 2016, the Respondent's 

request for documents containing •·facts known, or opinions held" by the Complainant's 

expert witness has met with silence. Consequently, pursuant to 14 C.F.R. § 13.220(m) 

Motion to compel discovery, the Respondent's attorneys respectfully move that the 

Complainant be compelled to produce documents that are properly discoverable. 

In the alternative, in accordance with the Due Process spirit of the Brady Rule, the 

Complainant, a state actor, acting in a prosecutorial capacity to affect an administratively 

imposed civil penalty should be required to disclose exculpatory evidence. The redacted 

portions of the EIR apparently contain such exculpatory evidence; the paragraph 

headings indicate there is redacted information on ''Reliability of Evidence," "Cont1icting 

Evidence," and "Other/Mitigating, Extenuating, or Aggravating Factors." Exhibit A. 

page 3, 4. 

More specifically, in Brady. the Supreme Court held that the Due Process Clause 

of the Fifth Amendment requires disclosure of exculpatory evidence "material to guilt or 

punishment'' knoVvn to the government but unknown to the defendant in criminal cases. 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 I 5-3307 

Case No. 20 I 5WP9 I 0090 Page 3 of 4 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
See Brady v. Marvland, 373 U.S. 83, 88 (1963). While acknowledging that this is not a 

criminal case; Due Process is still required since it is an administrative adjudication with 

the possibility of the deprivation of property interests. See Bd. of Regents of State 

Colleges v. Roth, 408 U.S. 564 (1972). 

Because Due Process is required, and the Complainant, by its own 

characterization (FAA Order 2150.3B. FAA Compliance and Enforcement Program, is 

littered with the term), is "prosecuting" an enforcement action that could deprive the 

Respondent of a property interest, then the government should be compelled to disclose 

its exculpatory evidence. 

Based on this analysis, the Respondent's attorneys requested an unredacted copy 

of the EIR. Exhibit C. The Complainant refused to provide the information. 

Consequently, the Respondent's attorneys respectfully move that the Complainant be 

compelled to produce documents that contain exculpatory evidence. 

CONCLUSION 

For the foregoing reasons. this Court should grant the Respondent's Motion to 

Compel. In the alternative. this Court should order an in camera review of the redacted 

material to determine whether it contains exculpatory evidence. 

RESPECTFULLY SUBMITTED this 16th day of September 2016. 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case No. 20 15WP91 0090 

CONLIN, MALONEY & MILLER 

-.. - / ,----~, 

"/S~?-~~7 

Benjamin L. Wybofne/WSBA # 50070 

Attorney for Respondent 

421 W. Riverside Avenue, Suite 911 

Spokane, WA 99201 

(509) 624-3020 

Page 4 of4 

Conlin. Maloney & Miller 

421 W. Riverside Ave., Ste 9\\ 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

!.' . .'i. llfl'.·\Rl:IIE:\! OF TR.\.\SPORTA TlO:\ 

OFFICE OF Hf.ARl'i(;<; 

RECtJ 

MJC 

WASlll W;TO:\. D.C. Ci J~LI>I, ?.1.\i: Jl'· 'IY 

i'"',f·lFl.i; \\L\!!11\ 

( (i>lPLAl:\A:\T'S SlTPLnlE'iTAL RESPO'i',l·: TO RESPONDEl\T'S FIRST SET 

Ol !.VrETmm;,\TOR!ES .\'ill REOl'ESTS fOR PRODliCTION OF DOCUMENTS 

S1d.k; 

'i n\\n.:crrj(;l)\ Dt\ !o.'!Ui! v:~'<ern --;!'1"1 

.\ l_ B;'\ 'l2qn·" 

f.,_,;: .\n~:.·L::'>- ( ·_·'. 'fi\U_!(_<?JH)i 

··ruii: :;!1tnl:lh.;;;,;.JKi~·:·•l 

it:·l:rhrn·,c 1:::!(;;'::::':' 1Ji2 

! ';:<:·-i n~ii · : ·;:: 1 '7:' :;~(-,;\ 1 r• 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case No. 2015WP910090 Exhibit A: Page I of8 

!og for Fxhil•it C-l is included 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
f)!lL'Ulilellt f;/pC 

Rl'PC·rl 

EXHIBIT A 

PRIVILEGE LOG 

,\uthor 

Matter 

: Clinton opmltm 

regarding 

regulations 

violated and 

~a.nction . 

; Privilege 

and 

Dtlihcrmi vc 

. ;·;~-->)-_:Ill:-_:; - - - - -- j l'inl'll-'' .. \u·t-"llr-,-,.c.·,, ---+,) A · -- .. ).". ~... • _ 1 rc--ul.':CJ:.;ional 

Clinton i oplnion anJ 

: regarding Deliberative 

sanction. 

Ciinwn ' opinion 

!. regarding 

i pnssihlc 

theories of 

: the cast: and 

1 sanction. 

Delibenuivc 

----, 

Fni{Jrcemem 05<~h-.20 l.'-

! 11 \' c:-;t i g. a 1: '. ·c 

l{cpn:-r 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

;_ Simont: · Amhor 1

S 

('linton : opinion 

: t\";\J ardin i} ! ~ C; 

' pnssiblc 

theories of 

' the cas~.: and 

.snnctiun. 

{'linton · opinion 

regarding 

possible 

1 

theories of 

the case and 

sanctronand 

Deliberative 

; and 

De!jbcrntive 

Case 1\o. 20 I 5WP91 0090 Exhibit A: Page 2 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
:1\i:::r-Ji· ~--EMf>1T lNVESTlGATi 

F:C ·<Y:?:-1 

EXHIBIT A 

f \C. 2 

- "~-·---- --~ 

00 

0) 725-3782 

<' }.0' C ~-:CC.~.' ' '"" ,~ ''' ~!ti 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field !\ viation, Inc. 

Docket No. F AA-20 I 5-3307 

Case No. :2015WP91 0090 Exhibit A: Page 3 of8 

Conlin, Maloney & Miller 

42 I W. Riverside Ave., Ste 9 I I 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

(:" '. Drug Abatement n;,,;~:A,, 

SINGLE LEGAL ENFORCEMENT ACTION 

SECHON 8 

Case Numt)er: 2015V11P9-'10090 

Statement of Case 

Feits F-ieid Aviat1on. !nc iS a '135 certificate holder tGFVA247E) Operations 

~r~c,,r,fi:c A449 (_~ert!fiE:S that the operat8·· wili with the requirements of 14 

CFR part 120 and 49 CFR part 40 for 1rs a1d A.lcohoi Testing Program. {lOP 1). 

On 20"r5. an inspection of f-elts F1elci !\viat1on. !nc.·s Antidrug and Alcohol 

Misuse Prevention Program was conducted_ As a result of the inspection letter of 

Investigation {fiie number 2CJ15VVP91009Cl'l was Jssueci on Aprli 16,2015 (lOP 2), and 

Response dated Aprti 27 20 ·1 S was recetved {lOP 3} 

According to 14 CFR 120,105: 

Each ernp!oyee including any assistant or mdiv1duai m a trairung status. who 

perfums .::t function l1sted rn til is section directly or by contract 

1 including by subcontract at any for an ernp!oyer as defined in this subpart must be 

:;ubJect to drug testtng under a testing program 1mp!emented in accordance with this 

S1!0part. 'This dlc!udes full-time part,time. temporaPJ. and intermittent employees 

of the degree of The safety-sensitive functions are· (a) Flight 

crewmember duties 

According to 14 CFR 120.215\a): 

Each employee. including any assistant he!per or individual in a training status, who 

a safety-sensitive funct1on listed in thts section directly or by contract 1

inciud!ng by subcontract at any tier) to" an employer as defined in thls must be 

subject to alcohol testing under a program 1rnplemented in accordance with this 

subpati This includes tul!-iwne temporar:/. and intermittent employees 

regardless of the of suoeriJJsJon f he satety-sensltive functions are: (a) Flight 

-::::revvmernber dLJt!es 

Violation Description: 

On ,Ju!y 2. 2007. R:ch<lro VVebber cornp1e1ed tne Ground Traming Program for aircrafts, 

CPssna T-2.10 and Cessna C 182RG (lOP 4) Mr Webber submitted to a Department of 

I' ransportat1on (DOT) pre~ernp!oyment test and was venfied negative on May 28. 2008 

(!OP 5) A rev1ew of Fe!ts Fietd Aviation. inc:s and r:1ight Time Records from April 

9. 2013 to March 20. 20·1 5 shows Mr \Nebber performed a safety~sensltive function as 

a Piiot {lOP 6) Mr VVebber was never added to the random drug and alcohol testing 

ooo! until Apri16. 2015 (lOP 7 & 8) As a result. Mr Webber missed random seleciions 

si~ce May 2008 but more recently on quarterly selections conducted on April5, 2013 

{lOP 9 & July 5 2CLi (lOP 10 & 17) October 4. 2013 (lOP 11 & 17), January 3, 

2014 {lOP 12 & 17). Apnl 4 2014 (lOP 13 & 17) July 4 2014 (lOP 14 & 17), October 3. 

2014 (lOP 15 & 17L and January 2. 2015 {lOP 16 & Mr. Webber was not in the 

ra;~,dcm pool for these selsct!ons .so he haci no chance of being selected_ {fOP 

7) 

FOR OFFICIAL USE ONLY 

Public availabiiity to be determined under 5 USC 552 

1 

MOTIO'J TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket 'Jo. F AA-20 15-3307 

Case No. 2015WP910090 Exhibit!\: Page 4 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave,, Stc 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

.4baternent Ul\nsron 

SINGLE LEGAL ENFORCEMENT ACTION 

Supporting Evid-en~e: 

~ Richard V\lebbe:'s cra1n\~·~g r·ecorcl dated 2, 2007 for aircrafts, Cessna 

T 210 Nand Cessoa C182RG (!OP4) 

o F\rst Advantage pre-ernployrnet~t venfi.eci negat1ve test result dated May 28 .. 

2005_ specirnen !0 # 04460~ 1565 (lOP 5) 

Felts Fielcl Aviatlon inc.'s Outy and Flight Time Records for Richard V'lebber 

from April 9. 2013 through March 20. 2015 !lOP 6) 

v F-e::lts Fieid Aviation. inc's active !ist from First Advantage dated May 

14. 2015. (lOP 7) 

• Letter from DER/Larry Schmeddrng dated Aprrl7. 2015. (lOP!!) 

0 f'irst Advantage enrollment .sumrnary report tor Felts Field Aviation. lnc. 

'or the second quarter of 2013. dated Apnl 5. 2013. (lOP 9) 

First Advantage enroilrneni histor:~ surnrnary report for Felts Field Aviation, Inc 

for the third quarter of 2013. dated Ju!y 5, 2013 {lOP 10) 

l=:rst Advantage en~oHment histo1·y summory report for Felts Field Aviation, !nc 

:n1 the fuurih quarter of 20 12,, daled October 4. 2013_ (lOP 11} 

"' Fus! Ac5vamage en:-ollrnent h1storv surnmn:ry report tor Felts F!eid Aviation. lnc 

fcx iht;: first quarter of 2014. dated Januar~1 ~\ 2014. {tOP 12} 

!- 1rst Advantage enrollment surnrnary report fer Fei\s Fieid Aviation. Inc, 

!or the second quarter of 2014. dated Apni 4 2014. (lOP 13) 

F:rst Advantage enrollment histoty surnrnary report for Felts Fie~d Aviation, !nc 

for t11e thrrd quarter of 2014. dated July 4. 2014. (lOP 14) 

First Advantage enrollment history summary report for Felts Field Aviation. Inc. 

for the fourth quarter ol2014. dated October 3, 2014. (lOP 15) 

"' First Advantage enrollment history summary report for Felts Field Aviation, Inc. 

for the first quarter of 2015. dated .January 2. 2015 (lOP 16} 

c Random Selection dates for Felts FiBid Aviation from January 2013- April 2015 

from F1rst Advantage (lOP 17} 

Factors Affecting Sanction 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 

2 

MOTIO"J TO COMPEL DISCOVERY 

In the Matter of felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case "Jo. 20 15WP91 0090 Exhibit A: Page 5 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

Drug Abatement Divisiof~ ,· 't:' ,, 

SINGLE LEGAL ENFORCEMENT ACTION 

Whether the Violation Was Inadvertent and Not Deliberate 

Certificate Holder's level of Experience and Responsibility 

Feits F1e!d Avlat1on. lnc. rs a ')35 certificated ai1 carrier based in Spokane, WA under the 

parent company of Empire Lurnber They are also associated with Idaho Chip & Flber 

and Park Ranch Land & Cattle Company This was the company's fourth inspection. the 

last botng on Aprd 9. 2013 They have two 81Ccralt, N2AK and N616EL. on their 0085. 

h;!ts Field Aviation, lnc. also has a Pari 145 r.:;ertificate and has two Forest Service J 

c.:rJntr·acts \vith the State of VVashington 

Attitude of the Violator 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 

3 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc, 

Docket No. F AA-20 15-3307 

Case No. 20 15WP91 0090 Exhibit A: Page 6 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, WA 99201 

(509) 624-3020 
EXHIBIT A 

D1 ug .Abatemem lJrJts:on ;r:!L,' 

SiNGLE LEGAL ENFORCEMENT ACTION 

Violation History 

Felts Field Aviation. lnc .joes not have a history of violations mvolving its Drug and 

A!coho! Testmg Prograrn 

What Corrective Action Has Been Taken? 

Other Information 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 

4 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-20 I 5-3307 

Case No. 20 I SWP91 0090 Exhibit A: Page 7 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT A 

:.:.\··,b:t ;~. i :-.i-V>->'·-' N•, :-/->..;\ :~ ; >~\i·' 

Drug Abatement Division 

SiNGLE LEGAL ENFORCEMENT ACTION 

Other/Mittgating, Extenuating, or Aggravating Factors 

Reasons Justifying Recommendations for Enforcement Action and (Type ol) 

Sanction 

FOR OFFICIAL USE ONLY 

Public availability to be determined under 5 USC 552 

5 

\!lOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case >Jo. 2015WP910090 Exhibit A: Page 8 of8 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 91 I 

Spokane, W A 9920 I 

(509) 624-3020 
Mark J. C,..rili.!l 

Thomas B. ~i;lloucy (1996) 

Tlulm.MiJ.Mill~r 

Th;lnjamin L. WyOOmey 

September D. ~016 

EXHIBIT B 

CONLIN, MALoNEY & MILLER 

ATT(lJL">'EYS AT LAW 

421 W. RIVERSIDE AVE!'.'1!E, SUITE 911 

SPDKAt'<C, WAS!llNGTON 99201 

r:atin1ah Stokley. /\Uornt.~_y 

t--.:nforcem12nt Division. Wcsh.:rn ']'cam 

P.O. Bn;.,_ 92007 

l.o:-. Angeles. CA 90009-2007 

RL: Felts Field ;\\iatitm 

NTSB Do~:ket ~o: FAA-2015-3307 

FAA Case l\o: 20 15WP91 0090 

\b. Stokh:;. 

T~lirphon<!"· (W9H>24·3020 

F=:cirnjk: {50$) 623·1650 

Not for Serviee ur NDtice 

blw@ctnrolawfum.net 

A.> \\t: lul\t: previously discussed. 'v\'C hmT received the FAA's Supplemental Response to our 

First Set of Interrogatories and Requests for Production. We appreciate the Supplemental 

Response. hcn.Vt'\·er. \\-'C had hoped for l1h)rt. 

ln :our response: tcr the Respondent's lnterrog_;.1tory No.3: "For each expert Complainant intends 

h-l c3H at the He-aring, provide a Curriculum Vitae or other documents reflecting the expert's 

prokssional qualifications."' You answere-d. --The Complainant intends to call Eric Wells as an 

expert \Vitncss. A copy of \-1r. \\-'ell's [sicj expert report and curriculum vitae is induded in 

Fxhihit C-2:· This response cstahlis:hes Mr. Wells as an expert witness that the FAA intends to 

c-all at the H..:-aring. 

1\lr. Wells. the FAA "s expert witness. is hoth the signatory of the Enforcement Investigative 

Report tEIRJ (Supplemental Response Exhibit C- L page I) as the Team Coordinator and the 

signatory of the "f]R's Regional Division Re\'iew as the Approving Official (id.). The EIR is 

cssenlially your r:xpcrt witnc:-Js ·:.:;product. containing his known filets and opinions. 

Pur;;;uant to 14 CF.R. § 13.220((") Scope t.Jf discovery .. ··, .. A parry may dhi.cover fitcts knO\\·n, 

or opinion::> held, b~ an expert v..ho any other party ~xpects to call to testify at the Hearing,'' 

\\:'e rc~pectlldly request an unreda~;u::d cop_:· tht: ·r:1R v .. hich we believe contains ''"fiacts knovm, or 

npininn:-; held" hy your expert witness. 

CorJiall) yours. 

Conlin. \faloney & Miller 

ct.:: Respond~.~nL h:lts Fidd A\ iation 

MOTI0'\1 TO C0\1PEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-2015-3307 

Case No.20 15WP91 0090 Exhibit B: Page 1 of 1 

Pagel ofT 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
M;;;rk,J. Conlm 

Thon'l~M B. M.alt>oey (JS%) 

Thomw J. Miller 

&ujamm L Wybomey 

Augu.c:x 9_ 2016 

EXHIBITC 

CONLIN, MALONEY & MILLER 

ATTORNEYS AT LAW 

421 W. RIVERSIDE AV'El-<LJE, SUITE911 

SPOKAl'-'E, WASHINGTON 99201 

Fatlmah Sh1-kky. Attornc;. 

f·:nt<m.:ement Division. Vv'cstern ·1 cam 

P.O. Box 92007 

fos Angeles. CA 90009-20117 

RF: felt~ Fidd A dation 

\iTSB Docket No: f'AA-2015-11117 

L·\:\ Case :--:o: 20 15WP9J 0090 

:vb. Stokley. 

Telephum;.: 0509}·624-3020 

F~: (509) 623-l$50 

Not fur: Service or Notice 

We han~ re~.:ived the 1-'AA's Supplemental Response to our First Set of Interrogatories .and 

Requests for Production. We appreciate the Supplemental Response. however, we had hoped for 

mor~.;_ 

rirsL \dthholding of discoverable materia! issues aside. it appears that the FAA hali added !l)ur 

pages to F:->hibit C-l. fhc 0riginal Exhibit C-1 contained 37 pages. The nev.-· Exhibit C-1 

contains ..f 1. llowcvcr. it o.ppears that tho..: FAA has not internally differentiated the original 

Exhihit ( ·-1 !rom the supplemented C-1 other than the location of the label "Exhibit C-1 ,._ In the 

originaL the footers conlain ··Exhibit C-1·· and a page number. In the supplement, the headers all 

indicate ··E\hibit C-1··. but the page numbers rernain in the footer. This has a very high potential 

h"~ L'ause confusion as this mait(:"r prncecds. Would it be possible to indicate either in the fo<Her 

(lr in the header. ·'Exhibit C-1 (Supplemented)" or ir the situation requires, ·•Exhibit C-l 

{Suppkmt;>nl 1 )""'? 

S.:cond. \>.-·c find the supp!t;mented redacted material and e-ntirely new pages somewhat wantL11g. 

i\s W{..' ar.:: dis-.:ussing the Enfnn::ement Investigativ..:- Rt:port {ElR}, l have incltidedguidance from 

F:\,"'. Order 2150.3H. Change ll (Order 2150JB). 

,\ccmding to Order 2l50J.B. Chapter 8. Paragraph 3,b,(:.:} Factors affeCting Sanction; '"FAA 

invcstig::Jt!v~.; personnel analyze \Yhcther each of the factors in chapter 7, paragraph 4 or 

:\ppendi\ C i:> relevant and applies to tht; ~usc." "fhis paragraph goes on to indicate· that '""[i]fa 

IJ.ctor ic-. r..:.'h:\·<mt to the cas~:. FAA itn·cstigatiV(: personnel explain in section B .. of the EIR how 

the facts and dn:urnstanccs suppnn the applicability of that f3.ctor to the alleged violations. It is 

our intention to discover the "facts :mJ circumstam;es'" that the FAA investigative personnel are 

cons)dl':ring. Gi-ven the amount of tht: proposed civil penally. we cannot undcrstak lht..' 

importance nr dnuhlc~chccking 1hcse '·facts and cin::umstances". 

A.n cxam.ple ln poim is the Ccnificak Iloldcf's. LeYcl of Experience and Responsibility section, 

E\hiblt C-1. page -:J.. This section indicates. '·Felts Field Aviation, lnc. also has a Pan 145 

Ccrlifi~;;.ne and has two h)rcsl Service Contracts vviih the State of \Vashington:· This 

information is im::orn:cr. Felts Fidd A;-iation Joes not maintain a Part 145 Certificate or any 

con1racts \\'ith tht: State tlf Washington. lf there arc errors in this s~ction~ what other errors are 

MOTION TO COMPEL DISCOVERY 

In the Marter of Felts Field Aviation, lnc. 

Docket No. FA.A-20 15-3307 

Case No. 20 15WP91 0090 Exhibit C: Page 1 of 6 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT C 

C\)no:akJ h~ rcJactions·.) FunhcL Ihese crronJ:ou::> facts are quite possihly affecting the proposed 

sanctitm. I'his is e:\actly the justification for discon~ring all of the facts on which tbe FAA is 

b~1sing the sanction. 

FunheL Order 2150.:iB. Chapter H .. Paragraph b.(31. Other lnfonnation .• indicates that "[i If FAA 

im'!..:stiguti\·c personnel have any opinions or feelings about the case, they state them in section B 

and lnbd th(._·m as opinions.-- The EIR includes a heading for "'Opinions''. A plain reading of the 

UR heading~. in light t)f the regulawr; guidanc\!. \vould indicate that opinions reside in the 

()pinions section. not in any other hcdding. liertainly not under headings that are historical or 

factual in nature. Rcdact!ons of infom1ation under f::tc-tual headings are inappropriate. The 

Rc->pt.mdcnt ls entitled to disco\·er the h1cts under the racwal headings and to either agree \Vith 

tho~c 1~1ct;:; or dispute them. 

\1ost importantly. the Privilege Lug contains t1' c blanket entries for 26 individual redactions. 

1 he purp(.·lse of a Pnvilege Log is to prn\'idc sufficient infi:.mnation to enable opposing parties 

and the Court t() Jetcm1ine whether each dement t1f the asserted prh·ilcgc is satisfied; a blanket 

dairn of the asserted privilege does not satisfy the burden of proof These blanket assertions of 

pri-.ileged pre-decisional and dt>libcrmive opinions are inappropriate, especially when 

considering that the FAA is applying these assertions to prima facie factual sections of the EJR. 

c~~nsidcring rcdacti1m 2. E:.:.hibit C- L page :1. Nature of the Violation~ Including How Satety 

\Vas .-\tTec:tcd: \Vt:: believe this redaction is inappropriate. Chapter 7 .. Paragraph 4.a. Nature of 

\'io}atinn .. identities three elements: operational versus non-operational, carelessness or 

re-cklessness. and special aggravating or n1itigating J1ctor$. \Vc request that the FAA disclose the 

~haractcrization of the violation: \-Vhcther it \\as operational or non-operationaL careless or 

rei..:1Jc.ss. and whether there arc aggra\·ating or mitigating circumstances. An investigator"s 

ohser\'at!ons :L<.> to the Respondent's actions regarding these elements are filets. These facts 

2.rfCct the sanction and th(' Respondent is entitled to discover on what ba<;is the F A.A is 

dctennining the sanction. 

l·urthcr. 11ith the inclusion of"lncluding How Safety Was Affected", it appears that the FAA has 

de\ iatcd tforn the prescrihed format of an FIR. We believe the redaction of these f~ts. is 

inappwpriatc. \Vhar did the inYestigator observe that anectcd safety? These fa~tors appear to 

afltcl the sanction and the Respondent is entitled to discover on what ba..qis the FAA is 

i.ktamining the sanction. 

Con:::id-rring redaction 3. Exhibit C-L page -L there are f()ur redactions on this page, but only one 

entry l1J the Privilege Log. This i:-; inappropriate. Each redaction is significant and merits an 

lndepcnd.;;;nt entry on the Privilege. Considering each heading specifically: 

• ConsidL·ring \Vhether the Violation was Inadvertent and Not Deliberate~ we believe this 

redaction is inappropriate. Chapter 7 .• Paragraph 4.b. Whether the Violation was 

Inadvertent and Not Deliberate .. indicates !hat "'[ i]f a violation is deliberate or not 

inadvertent~ a sanction at the upper end qf the range or exceeding the range for that type of 

,·Jolation generally is appropriate." An invesiigator~s observations as to the Respondent's 

action;;; int.licming deliberateness or ina~..h·eJicncc are facts~ not opinions or impressions. 

I'hcsc facts a f/i:ct the sanction and the Rcspond~nt is entitled to discover on what basis the 

F:\A is J.ctcm1ining the sanctitnJ. T'he FAA's assertion that redaction 3 contains ''theories 

oflhc case .. is inappropriat..: to the prescribed su~jcct fi.)r this heading. 

MOTION TO COMPEL DISCOVERY 

[n the Matter of Felts Field Aviation. Inc. 

Docket No. FAA-20 15-3307 

Case No. 20 15WP91 0090 Exhibit C: Page 2 of 6 

Page 2 of6 

Conlin. Maloney & Miller 

421 W. Riverside Ave .. Ste 911 

Spokane. W A 9920 I 

(509) 624-3020 
EXHIBITC 

$ ( 'on:-:idering AttitudL" of the- Violatnr: \\C believe this redaction is inappropriate. Chapter 7 .. 

Paragraph -td. Attitude (If tht: Violator._ Indicates that '·fa'] prior violation history may 

:;;uggesi that a person has a poor complianc~ disposition, which is an aggravating factor. 

Funhcnnorc. <1 pcr"'on who comrnits an act or omission contrar~y to statutory or regulatory 

requirements ul'ter rccciYing notice through a prior administrati\·e action or counseling that 

such condud is in violation of those rccluirements might well be regarded a~ having a poor 

compliance disposition." An investigator's ·observations of violation history and! or notice 

through prillf administrati\·c action \lr counseling are f3cts. not opinions or impressions, 

·1 hc:-;c fa..:ts affect the sanction and the Respondent is entitled to discover on what basis the 

F.-\:\ is tktermining the sanction. The FAA·:.; assertion that redaction 3 contains ··theories 

z•fthc case .. is inappropriatt: to the prescribed subject fi.)r this heading. 

0 Con"idcring Degree of Hazard: V><..' bdkvc this redaction is inappropriate. Chapter 7 .. 

Parugraph ~.e. Degrt:c of Hazard .. indicates that ··[tjhe degree of hazard may be increased 

as D result oftbe !nterpla~ of the operational environment (f()r example, weather condltions, 

cnnt:estcd \'Crsus sparsely pnpulatcd arcasi and the nature ofth~ threat to safety (to lhe life 

or property or another. including thusc in the aircraft being operated; to other aircraft; or to 

p .... ·rsons or property on tht surldcc) that the misconduct presents.'' An investigator's 

observations of the operational environm~nt are racts, not opinions: or impressions. These 

iiJCts afkct the sanction and the Rcspondcn! is entitled to discover on what basis the FAA 

is Jt:tennining the ~unction. The FAA's assertion that redaction 3 contains ~~theories of the 

cc:tsc·· is inappropriate to 1hc- pn:scrihcd suhject for this heading. 

• Considering Action Taken by the Lmplnyer or Other Authority; we believe this redaction is 

in~tppmpriate. Chapter 7 .. Paragraph 4.f. Action Taken by Employer or Other Authority., 

indicates l'\\O dem.:nts "'vvhether the Jlleged violator's employer has taken disciplinary 

actil\f\ and \Vhcthcr criminal proS{:cllllon is irl\'olved.'' ,'\n investigator's observations of 

disciplinary actions or criminal prosecution are tbcts, not opinions or impressions. These 

facts affect the sanction and the Respondent is entitled to discover on what basis the FAi\ 

i~ detennining: the sanction. The FAA's assertion that redaction 3 contains ~"theories of the 

case·· is inappropriate to the prescribed suhjcct l<x this beading. 

( nnsidcring redaction 4, Exhibit C- L page 5" there are nine redactions on this page. but onJy one 

entry to the Privilege Log. This is inappropriate. Each redaC'lion is significant and merits an 

inJcpendern entry. Considering each heading specifically: 

• Considering Lse of a Certificate: \\\' hdieve this redaction is inappropriate. Chapter 

l)aragraph 4.g. Usc of u Certificate .. indicates that ··r_t.jhis factor relates to the nature or kind 

of acti\:ity or operation in\'oh eJ at rhc time the violation was committed. \Vhether the 

certificate holder was engaged in student private, commerciaL or airline activity bears on 

tbc severity of the sanction,.. An investigator's observations of the Respondent~s 

op<:rati<•ns arc facts. not opinions '()f impressions. These facts affect the sanction and the 

Respondent is entitled to Jiscm·cr on whm basi;;; lhe FAA is determining the sanctidn. The 

FA:\-:; assertion that redaction ..J. C"l>ntains ''theories of the case'' is inappropriate to the 

presnii:H.:d suhjo.:ct f(;r this headlns, 

e Considering Decisional L;:rw: \\c hdi~ve: this rcd:;Lction is inappropriate. Chapter 7,, 

Paragmph 4.\, Decisional Law .. indicates that priority of guidance fOr FAA decisi<mmaker 

deciskm:-;. /\n ]n\'estigator's ldcntiiication nf these decisions are facts. Further, ··FAA 

h:lt> !-it:: td A\ iJtilll1 

~TSB Ducket No: FAA-20!5-3307. FAA Ca~e No: 201.5\VP010090 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. FAA-20 15-3307 

Case No. 20 15WP91 0090 Exhibit C: Page 3 of 6 

Page3of6 

Conlin, Maloney & Miller 

421 W. Riverside Ave .. Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT C 

dcci~ionmaker decisions published after the issuance of this document that conflict with the 

P"licy in this order supersede this document and arc controlling:· The Respondent is 

entitled to discover on what basis the FAA is determining the sanction. and whether the 

hasis of the sanction has btcn ::;upcrscJtd. The FAA's assertion that redaction 4 contains 

"theories of I he case·· is inappropriate tn the- prescribed subject for this heading. 

• Considering iv1ultlplc \~\olations/Acts; we believe thi.-; redaction is inappropriate. The 

cum::nt Order 21 50.) B does not seem h1 address this heading. howeveL whether there are 

\-1ultiple Violations or Acts arc facts. Certainly. an investigator's observations of the 

Rcspondcnt"s acti1.111s regarding I'viu!tiplc Violations or Acts are facts. These facts appear to 

affect the sanction and the Rcsp()mlent ib entitled to discover on what basis the FAA is 

determining the sanction. The FAA ·s asscttion that redaction 4 contains "'theories of the 

case"" is inappropriate to the prescribed subject ror this heading, 

* Considering Ability to Absorh Sanction: we he!ieve this redaction is inappropriate. 

Chapter 7 .. Paragraph 4j. ,\biliry to Absorb Sanction., indicates that "[ w]hile the FAA does 

not allo\\ financml circumstanct..'s t1) C\_cuse uny violation, it does consider a carrier's size 

and linanclal strength In choosing the appropriate sanction amount. The diUerence in the 

penalties fixed in the la\'v lOr large and small business concerns recognizes this fact. .. 

Therefore. the Fiu\ uses air carrier sizt.~ as one means of ensuring a relatively equivalent 

dctcncm effect on each air carrier that violates the same FAA regulation. . For all 

entities and individualsj the FA"-\ considers ability to pay a civil penalty and tht: effect a 

ci\ i! penalty \'{ill h;:we nn a pers-on's ability w continue in business to the extent it knows 

su~h information.'· Facts that the FA/\ is using to determine ihc size of the Respondent and 

con~equcntly. the amount of the sancrion are discoverable. These facts are not an 

itn cst.igator" s opinion. These bets affect the sanction and the Respondent is entitled to 

disc<J\cr un what basis the FAA is dctenninlng the sanction. The FAA ·s assertion that 

redaction -l contains ""theories of the case"" is inappropriate to the prescribed subject for this 

heading. 

FurthcL rcYicwing our tcicconferc-nce on Thursday, August" 4, 2016, this is one of the 

topics we discussed: \vhcther the Respondent's financial documents where accurate and 

currenL Considering this concern. the Respondent is entitled to discover what information 

th..: F.\1~ is using to ensure it is cnm~ct Jnd cuiTCnt. 

• Considering_ Consistenc:y of Sanction: we believe this redaction is inappropriate. Chapter 

7 .. Paragraph 4.k. Consistency of Sanction .. indicates that one of the FAA's goals is '·to 

achieve relative consistency in imposing similar sanctions tOr similar violations:· AJl 

inYcstigator"s identification of consistent cases an~ facts. The Respondent is entitled to 

discover whlch cases are idcntit1cd a.;.; consistent. These facts aHect the sanction and the 

Respondent is entitied to discover on what basis the FAA is determining the sanction. The 

F,\Xs assertion that redaction 4 contains ""theories of the case" is inappropriate to the 

prescribed subject for this heading. 

• Considering \Vas the Violation Volmnarily Reported~ we believe this redaction is 

inappropriate. Chapter 7 .. Paragraph ..f.l. Y.ihcthcr the Violation was Reponed Voluntarily., 

indicates that an entity may '"repnrt Yoluntarily apparent violations and receive lesser 

enforcement action provided certain critt:rin arc rnct.~· Whether or not a violation is 

\U!unwrll.y n:portcd is a fact not an opinion. This fact affects the sanction and the 

F,;\b held :\\iation 

STSB Docket No: FAA-JOJS-3307. FAA Ca::;c No: 2015V·iP!JJO(J90 

MOT!O'\ TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation. Inc. 

Docket No. FAA-20 I 5-3307 

Case '.Jo. 20 I 5WP9! 0090 Exhibit C: Page 4 of 6 

Page 4 of6 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 91 I 

Spokane, WA 9920 I 

(509) 624-3020 
EXHIBIT C 

Respondent is entitled to discover on ''hat basis the FAA is dctcm1ining the sanction. The 

F.'\.Ys assertion that redaction 4 contains ··theories of the case·· is inappropriate to the 

prcscrihed suhjcct for this heading. 

e Considering \\:hat Corrective Actiun Has B~cn raken: we believe this redaction is 

inappropriate. Chapter 7 .. Paragraph -t_m_ Corrective Action .. indicates that ~.lt]he FAA 

nmsJJers corn.:ctivc action n mitigating !'&:tor in detennining sanction provided the 

corn:ctivc action e:..:ceeds the rninirnum n.:gulat(lry or statutory requirements. The amount 

uf credit given in setting a sanct.iun depends on the extent and timing of the corrective 

action. that is, hm\ exten:;i\·e w:.L-: the correctiYc action and how quickly \vas it taken. 

Implementing JK'\V proc~dures that art' ahovc those required under the FA.A's regulations tO 

prevent future violations ordinarily is considered a mitigating factor in determining an 

appropriate sanction.'· An inH::stigator's observations of the Respondenfs actions 

regnrding correctiv-: actions are h1cts. not opinions. These facts affect the sanction and the 

Respondent is ;.;ntitlcd w disC(n.·cr on \\·hat basis the FAA is dete1mining the sanction. 'The 

F.-\,·\·s assertion thm rL·dac1iDn-+ contains "tht.:-ork.s or the case" is inappropriate to the 

prescribtd subject J{)r this heading. 

hnther. rcvie\ving our telcconf\:rcncc on Thursday. August 4. 2016, this is exactly the 

in!cmmnion that Ms. Killingham requested. Sped!kally, she wanted to know what 

corrc-ctin: actions had Felts Field Aviation taken to cure the violation. That Ms. 

Ki!lingham V\tnlld request the information indicates that she suspects the in.fOnnation in the 

UR is eitht:r inaccurate- or outJcucJ. Considering this concern, the Res-pondent is entitled 

to di~;cuvcr this infixmation to ensure 11 is Ct)rrecr and current. 

• Considering Reliability of LviGence: we be!i(;ve rhis redaction is inapprop-riate. Chapter ~L. 

Paragraph 3.h.{~) Other information .. indit:<Jtcs that ··FAA investigative personnel set forth 

in section B any orher mitigating, extenuating. or aggravating factors about the apparent 

\·iulation~.·· .:\ factor is "(ajny circumstance or influence which brings about or contribuks 

to a result. ." {Black's Law Dictionary 6th Ed.) An investigator's observations of 

circumstances or influences t.ha! mitigate, extenuate, or aggravate the violation are facts. 

l'hese thcts affect the sanction and may rven gu to rebutting the relevance or materiality of 

evidence. The Respondent is entitled to Ji$covc-r on v-.'hat basis the FAA is detem1ining the 

sanction. fhc FA:\ 's assertion that redaction 4 contains .. theories of the case" is 

inappropriate to the prescribed sul~iect for this heading. 

hJrtht:L whik ackno\dedging that this is an administrative law case~ not a criminal case~ it 

is still an admlnistra1ivc pros._:cution in the pursuit of an administrative sanction. Indeed, 

L\A Order 2!50.3!3 is riddled "ith rctcrcnces to ··prosecution" ofthe enforcement action. 

As n prosccutorlal agency. if the FAA. a State Actor, has exculpatory evidence~ it ha,;; a 

dut~ to Uisdose it rn withhold excu!pawry eYidence violates due process. 

~ Considering Conilicting Evidence: we hdievc the redaction is inappropriate. Chapter 8. 1 

Paragraph 3.b.( 3) Other tnfi:mnntion .. docs not specitlcally address conflicting evidence. 

! imvcvcr. an investigator· s obser~'aiions of con.!licting evidence arc facts. These facts 

appear w afltcl the sanction and ma: even go to rebuning the relevance or materiality of 

evidence. rhc Rcspnndem is cntiUed to discover 0n what hasis the FAA is dct-em1ining the 

sanction. The FAA's assertion that redaction 4 contains ·•theories nf the case·~ is 

inappropriate lo the prescribed subject tt!r this h~ading. 

Fcib l'idd /\\iZ~ti\11\ 

\: l ;';B Doch.ct No: FAA-20L'I~3307. FAA Ca~e No: 20l5\\'P9!0090 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation, Inc. 

Docket No. F AA-20 15-3307 

Case No. 20 15WP91 0090 Exhibit C: Page 5 of6 

Page 5 of6 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
EXHIBIT C 

Again. whik acknov.:lcdging that this is 811 administrative lmv case~ not a criminal case, it is 

still an administrative proseculion in the pursuit of an administrative sanction. As a 

prosecutorial agency. if the FAA. a State Actor, has exculpatory evidence, it has a duty to 

disclose it. To withlH•lJ exculpatory evlch:ncc violates due process. 

( \msidcrlng redaction 5. Exhibit C-l. page 6. there are six redactions on this page\ but only one 

cntr~- to the Pri\'ilegc Log. !"hi:-~ is inapproprb1c. Each redaction is significant and m·erits an 

independent entry. ('onsidering each heading specifically: 

@ Cnnsidcring Other/i\-1\tigating. Exwnuming. or Aggravating Factors, we believe the 

redaction is inappropriate. Chapt~r 8., Paragraph 3.b.(3) Other information., does not 

specifically address Other/l\r1itigat1ng. r:xtenuating. or Aggravating Factors, but Reliability 

or Lvidencc dot:s. A.n inYest!gator"s observations of circumstances or int1uences that 

mitigalc. extcnm:w.:. or aggravate thl' \'iolation are facts. These facts affect the sanetion and 

may eve-n go to rebutting tlK rc-kvunce or materiality of evidenc.e. The Respondent is 

entitled to disco\·c-r on \..vhat hdsis tht: F :\A is detemtining the sanction. The FAA· s 

assertion that redaction 5 contains ··lht.:orics of the case·· is inappropriate to the prescribed 

subject for this heading, 

s Ctmsidcring. Opinions. \Vc do not challenge tht:· redaction nf opinions of the author properly 

!abdcd and ]pcatcd in Opinions section. 

• C(lnsidcring Recommendation About the 1'ypc of Sanction, we do not challenge the 

fL'daCtiOO 01' fi..'C0fl1n1Cild3.tiOnS of' lh~ author properly ]abe}ed and located in the 

RccommC"ndation Ahout the Type of Sanction section. 

o Considering Reasons Justii}'ing Rccomrnendations for the Enforcement Action and (Type) 

Sanction, \Vc Jo not challenge the rcdactlon of justification of recommendations that arc 

properly labeled and located in the appropriate section. 

• Considering the unlabcleU redaction. we believe this redaction is inappropriate. There is 

nothing indicating what. inf{'Jnnation is redacted or the appropriateness of the redaction. 

• Considering Kcgionai Sanction Recommendations. we do not challenge the redaction of 

regional sanction recommendations that are properly labeled and located in the appropriate 

section. 

\Vc strong!y o~ject to the redaction nf the abo\·c indicated items and request a copy of the ElR 

\\ith thL indicated redact inns rcmovt:d. If necessary. pursuant 10 J 4 C.F.R. § 13.220(m)1 we will 

pursut: ;.~ !\.1otion to Compel. 

!fy:ou ha\\~ any questions, pkasc dn not hesitate lO contact me. 

( ·ordiall::i yours. 

Conlin. Maloney & Miller 

Ben \Vyhurney 

cc: Rcspondt:nt. Fells Field Aviation 

h·lh field A\iatiun 

\: rSB Dock..;t Nu: FA!\-2015--3307. FAA Case No: 2015WP9!0090 

MOTION TO COMPEL DISCOVERY 

In the Matter of Felts Field Aviation. Inc. 

Docket >-Jo. F AA-20 15-3307 

Case No. 20 15WP91 0090 Exhibit C: Page 6 of 6 

Page 6 of6 

Conlin, Maloney & Miller 

421 W. Riverside Ave., Ste 911 

Spokane, W A 9920 I 

(509) 624-3020 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Motion to Compel Discovery has been served via 

facsimile (where indicated), email (where indicated), and Regular Mail on September 16, 

2016 to the following: 

Judge J. E. Sullivan 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Ave. SE (Ell-310) 

Washington, DC 20590 

Phone: 202-366-6941 

Fax: 202-366-7536 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Fatimah Stokley. Attorney 

Federal Aviation Administration 

Ofllce of the Chief Counsel 

Enforcement Division, Western Team 

P.O. Box 920007 

Los Angeles, CA 90009-2007 

Fax: (310) 725-6816 

Fatimah.Stoklcy@faa.gov 

DATED this 16th day of September. 2016 

Mark J. Conlin 

Attorney for Respondent 

421 W. Riverside Avenue, Suite 911 

Spokane, WA 99201 

(509) 624-3020