SERVED: February 24,2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

In The Matter Of: ) 

) 

) 

) 

) 

) 

LIBERTY 

FOUNDATION, INC. 

Respondent 

Docket No. FAA-2012-0477 

Case No. 2011-GL-03-0070 

ORDER DENYING RESPONDENT'S MOTION FOR RELIEF 

ON RECONSIDERATION 

On February 6, 2014, an Order Denying Respondent's Motion for Continuance, and 

Granting/Denying Other Relief("February 6, 2014 Order") was filed. 

On February 10, 2014, the Respondent's Motion for Reconsideration ("Motion") was 

filed. 

On February 18,2014, the FAA's Response to Motion for Reconsideration ("Response") 

was filed. 

I. BRIEF DISCUSSION AND ANALYSIS 

A. Background Summary: 

The Respondent's February 10,2014 Motion asserts that the administrative court erred 

on February 6, 2014 when it denied the Respondent's December 27, 2013 Motion to Continue 

the Trial Date. In essence, the Respondent's Motion re-asserts that the Apri12014 Hearing 

should be postponed until after Mr. Raymond Fowler, a Major in the National Guard, returns 

from his military deployment in Afghanistan. Mr. Fowler is the Respondent's executive director, 

and is listed as one of the Respondent's hearing witnesses. Mr. Fowler's tour of duty is currently 

scheduled to last approximately eight (8) months, from April18, 2014 through December 6, 

2014. It appears undisputed that there is no guarantee that Major Fowler's military service will 

actually end on December 6, 2014, or that he will return on December 6, 2014, but nevertheless, 

December 6, 2014 is the end date identified in his deployment orders. The hearing is currently 

scheduled for Apri122, 2014 through Apri125, 2014, in Atlanta, Georgia. The case has been in 

litigation before the Office of Hearings since July 6, 2012. The hearing has already been 

continued twice. 
B. Respondent's Primary Arguments for Reconsideration: 

In support ofits' February 10, 2014 request for reconsideration, the Respondent alleged 

that the February 6, 2014 Order denying the request for continuance "creates a substa'ntial 

unfairness to [the Respondent]." (Motion, 1). The Respondent asserted February 6, 2014 Order 

denying a continuance of the hearing created the following five problems: 

, 1) It requires the Respondent to make Mr. Fowler's testimony known to the FAA before the 

FAA presents its prima facie case; 

2) It relieves the FAA of the obligation to present its .Prima facie case first; 

3) It put the "onus" on the Respondent to present testimony first, without the benefit of 

waiting for the FAA to rest its prima facie case; 

4) It allows the FAA the benefit of closing without the burden of going first; and 

5) It requires the Respondent to correctly anticipate all of the FAA's testimony and 

documentary evidence when taking Mr. Fowler's perpetuation deposition. (Mot. 1.) 

The Respondent further noted that it believed each of these circumstances were stated or 

implied in the Respondent's Motion for Continuance, and that a failure to grant a continuance 

resulted in substantial prejudice to its ability to litigate this case. (!d.) 

C. FAA's Renewed Objection: 

In its February 18, 2014 Response, the FAA disagreed with the Respondent, and renewed 

its objection to a continuance ofthe hearing. The FAA noted that the Respondent had failed to 

identify any error in the administrative court's February 6, 2014 ruling. In addition, the FAA 

pointed out in multiple arguments that the Respondent had failed to raise new issues or 

arguments in support of its February 10,2014 Motion. (Response, 1). 

D. Discussion and Analysis: 

The February 6, 2014 Order specifically noted that while "all motions for relief, all 

documents submitted, and all party arguments have been fully considered" the discussion 

contained in the Order was "limited to certain matters." The matters specifically discussed in the 

February 6, 2014 Order were: 1) the non-applicability of the Service Members Civil Relief Act 

(108 P.L. 189; 117 Stat. 2835) of2003, 2) Mr. Fowler's participation in the case as a testifying 

witness, and 3) Mr. Fowler's participation at the hearing as the Respondent's agent (available to 

consult with, and assist, counsel of record). 

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The Respondent's February 10,2014 Motion re-asserts that Mr. Fowler's absence creates 

problems for it, in terms of hearing procedure and trial strategy. This administrative court is fully 

aware of the problems created for a party litigant when a witness is unavailable for live 

testimony, or when a preferred business agent is not available for immediate consultation. 

However, in the instant case, particularly given the length oftime Mr. Fowler has been available 

for pre-hearing discovery and strategy, these problems are not insurmountable. The Respondent 

has not shown either good cause grounds or substantial prejudice grounds that support 

continuance of the hearing. The discussion in this Order will again be limited in scope, but all 

party arguments and assertions have been fully reviewed and considered. 

First, while it is true that preserving Mr. Fowler's testimony by perpetuation deposition 

before he leaves for military duty will make Mr. Fowler's hearing testimony known to the FAA 

before it begins its prima facie case, it is equally true that that the substance of Mr. Fowler's 

hearing testimony has already been disclosed to the FAA through pre-hearing discovery 

depositions and other discovery exchange. (Response, 2). The Respondent appears to believe 

that Mr. Fowler's hearing testimony will be a surprise to the FAA. The FAA appears to 

disagree, to the point of characterizing Mr. Fowler's known testimony as "nothing noteworthy." 

(Response, 2). Obviously, the parties disagree about the importance and impact of Mr. Fowler's 

evidence. That is their prerogative. But by this stage in a civil regulatory proceeding, there 

should be few, if any, surprises about what Mr. Fowler will testify about, or the scope of his 

evidence. 

Second, taking Mr. Fowler's testimony by perpetuation deposition prior to the hearing 

does not shift the FAA's burden of"going first" to the Respondent. The FAA must still appear 

at the hearing and present all of its evidence first. The FAA must establish a prima facie case on 

each alleged violation, as well as a prima facie case regarding its proposed civil penalty on each 

violation, before the Respondent is required to begin its responsive case. Only after the close of 

the FAA's case-in-chief will the Respondent respond or present a defense. At that point, it is the 

Respondent's decision to move to admit Mr. Fowler's perpetuation deposition, present the live 

testimony of its other witnesses, or introduce other evidence, in response to the FAA's case in 

chief. Thus, the initial burden of presenting a prima facie case, by a preponderance of the 

evidence standard, remains the FAA's burden. 14 C.F.R. § 13.224. 

Third, this administrative court agrees that taking Mr. Fowler's testimony by perpetuation 

deposition prior to the hearing does require the Respondent to preserve Mr. Fowler's hearing 

testimony prior to the presentation of the FAA's prima facie case. This is a disadvantage to the 

Respondent, simply by virtue of taking testimony out of order. The administrative court may 

even take judicial notice that it is usually a disadvantage for a party litigant when one (or more) 

of its' witnesses become unavailable for live testimony. It is sometimes a disadvantage to take 

testimony out of order. But as the FAA properly noted, taking testimony out of order does not 

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automatically equate to creating substantial prejudice against a party. (Response, 1-2). Indeed, 

taking testimony out of order might be deemed an advantage, since it allows a party the ability to 

still present testimony when a witness would otherwise be unavailable. Such a remedy is often 

utilized in litigation to accommodate witnesses and/or to effectively manage case litigation. 

Fortunately in this case, Mr. Fowler is still available for inquiry. the Respondent may preserve 

and utilize Mr. Fowler's testimony before he leaves to serve in Afghanistan. Indeed, as pointed 

out in the February 6, 2014 Order, it appears strongly preferred to preserve Mr. Fowler's 

testimony before he departs, rather than to exercise the extraordinary remedy of postponing the 

entire hearing in the hopes that Mr. Fowler returns, unscathed, after December 6, 2014. 

Fourth, taking Mr. Fowler's testimony by perpetuation deposition does not result in 

"allow[ing]" the FAA "the benefit of closing without the burden of going first." (Motion, 1 ). 

This argument appears to reiterate the Respondent's earlier arguments, in which it objects to 

taking Mr. Fowler's testimony out of order. As discussed above, the FAA still bears the burden 

of presenting evidence at the hearing first, and establishing a prima facie case on each allegation 

in its Amended Complaint. 

Fifth, the Respondent objects to trying to "correctly anticipate all ofthe FAA's 

testimony and documentary evidence when taking Mr. Fowler's perpetuation deposition." 

(Motion, 1). This again appears to be an objection by the Respondent to taking Mr. Fowler's 

testimony out of order. While the administrative court fully understands the Respondent's 

preference not to do so, it is a fact that Mr. Fowler will be unavailable for the hearing. As noted 

earlier herein, it is a fundamental part of litigation to exercise discovery exchange so that party 

litigants can avoid surprises at the hearing. Litigants exchange information so that they may 

reach resolution on undisputed issues, and gain knowledge and insights on the disputed matters. 

Given the lengthy period of discovery exchange in this case, as well as the voluminous materials 

already submitted in this case for summary judgment consideration, both the FAA and the 

Respondent should be thoroughly versed in their own case strengths and weaknesses. Both 

parties should also be well prepared to anticipate and answer the opposing side's presentation on 

each issue in dispute. In addition, as already noted in the February 6, 2014 Order, Mr. Fowler has 

been involved in this case since its inception, to help Respondent prepare for litigation. He still 

remains available to the Respondent for consultation, up to the point ofhis departure on April18, 

2014. 

The Respondent has also criticized the February 6, 2014 Order, where it stated at one 

point in its discussion that Mr. Fowler had "accepted deployment." (Order, 4; Motion, 2). The 

Respondent argued that this court had mischaracterized the nature of Mr. Fowler's deployment, 

and had misunderstood the deployment to be a "volunteer" action. (Motion, 3). It was 

undisputed that neither party had ever argued that Mr. Fowler's deployment was voluntary, or 

that the reason underlying Mr. I:owler's deployment was in any way relevant. As properly noted 

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I 

by the FAA, nothing in the February 6, 2014 Order indicated that this court believed that Mr. 

Fowler's deployment was a volunteer action, or that it mattered in the ruling. (Response, 3). 

Indeed, ifthe February 6, 2014 Order is read fully, there are multiple references to Mr. Fowler 

being ordered to deploy (e.g., Order, 2, "received deployment orders"; id. at 3, "assigned to an 

Air Combat Command"; id. at 5, "may experience an extension of his tour of duty."). 

In any case, the underlying reason for Mr. Fowler's deployment (i.e., ordered v. 

volunteered) is not relevant. What is important is Mr. Fowler's status in this litigation, his 

participation as a witness, his participation as a designated agent, and his unavailability for the 

hearing. Each of Mr. Fowler's roles have been thoroughly reviewed, considered, and weighed 

before reaching a decision on the Respondent's request for continuance. 

Lastly, while it is clear that the Respondent would prefer to have Mr. Fowler present at 

the hearing as its agent (to consult with Respondent's counsel), Mr. Fowler is not available. 

Although the Respondent has proffered many arguments in favor of continuing the litigation so 

that Mr. Fowler can be utilized as its preferred representative, the FAA is correct in pointing out 

that the Respondent has presented no evidence or details to support such arguments. (Response, 

2). It is noteworthy how silent the record remains regarding Mr. Fowler's asserted unique 

capabilities as the corporate agent. In fact, it appears that the Respondent has made a deliberate 

choice not to identify its corporate make-up, its directors and officers, the number and skill level 

of its employees, and/or the number and skill level of its volunteers --all of whom this court 

must presume might be available to the Respondent as substitute agents during Mr. Fowler's 

military service. No declarations or other evidence has been submitted to demonstrate that Mr. 

Fowler 1s the orily individual capable of acting as Respondent's agent during the hearing. 

Equally problematic, the Respondent has offered no caselaw or legal authority to support its 

position that a corporate entity, which presumably has multiple individuals in its leadership and 

organizational structure, may designate only one individual as capable of acting on its behalf, 

and then assert an inability to engage in litigation upon such individual's prolonged absence. 

II. CONCLUSION 

As previously discussed in the February 6, 2014 Order, Mr. Fowler is not a party to this 

proceeding. He is one of several of the Respondent's witnesses. Throughout this litigation, Mr. 

Fowler has also served as the Respondent's preferred agent to "assist [the Respondent's] 

counsel" during the Hearing. (Mot. 2.) As found in the February 6, 2014 Order, the Respondent 

has not shown either good cause grounds or substantial prejudice grounds that support 

continuance of the hearing because of Mr. Fowler's unavailability to be present at the Apri12014 

hearing. 

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Pursuant to 14 C.F.R. § 13.205(a)(8), based on the foregoing and after reviewing all 

relevant caselaw, decisions, regulations, statutory authority, motions, pleadings, and being fully 

advised; 

IT IS HEREBY ORDERED: 

1. The Respondent's February 10,2014 Motion for Relief on Reconsideration is denied. 

2. The Hearing in this case, set for April22, 2014 through April25, 2014, in Atlanta, 

Georgia, is reconfirmed. 

Attachment: Service List 

Page 6 of6 
SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 1 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC--430 

Wilbur Wright Building-Suite 2W1 000 

Mr. Christopher Stevenson 

Complainant's Counsel 

Office of the Regional Counsel 

P.O. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Stuart A. Goldstein 

Respondent's Counsel 

Stuart A. Goldstein, P .A. 

7300 North Kendall Drive, Suite 380 

Miami,FL 33156 

TEL: 305-670-1222 

FAX: 305-400-0685 

Judge J.E. Sullivan 

U S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-2142 

FAX: 202-366-7536 

ONE COPY 

FDMS No. FAA-2012-0477 

(Civil Penalty Action) 

1 

Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

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