### SERVED: February24,2014

U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

In The Matter Of: 

### ) ) ) ) ) ) LIBERTY FOUNDATION, INC.
Respondent DocketNo. FAA-2012-0477

CaseNo. 2011-GL-03-0070

ORDERDENYING RESPONDENT'S MOTION FORRELIEF

ON RECONSIDERATION

On February 6, 2014, an OrderDenying Respondent's Motion for Continuance, and Granting/Denying OtherRelief("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 thatthe administrative court erred

onFebruary 6, 2014 when it deniedthe Respondent's December27, 2013 Motionto 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 Majorinthe National Guard, returns from his military deployment in Afghanistan. Mr. Fowler is the Respondent's executive director, and is listed as one ofthe Respondent's hearing witnesses. Mr. Fowler's tour ofduty 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, orthat he will return onDecember 6, 2014, butnevertheless, December 6, 2014 is the end date identified in his deployment orders. The hearing is currently scheduled for Apri122, 2014 through Apri125, 2014, inAtlanta, Georgia. The case has been in litigation before the Office ofHearings 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 ofthe hearing created the following five problems:

, 1) Itrequires the Respondentto make Mr. Fowler'stestimony knownto the FAA before the FAA presents its primafacie case;
2) Itrelieves the FAA ofthe obligation to present its.Primafacie case first;

3) Itput the "onus"onthe Respondent to presenttestimony first, withoutthe benefit of waiting for the FAA to rest its prima facie case;
4) Itallowsthe FAA the benefit ofclosing without the burden ofgoing first; and

5) Itrequires the Respondentto correctly anticipate all ofthe FAA'stestimony and documentary evidence whentaking Mr. Fowler's perpetuation deposition. (Mot. 

### 1.)

The Respondent further noted that it believed each ofthese 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 withthe Respondent, andrenewed its objection to a continuance ofthehearing. 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 newissues or arguments in support ofits February 10,2014Motion. (Response, 1).

D. Discussion and Analysis: The February 6, 2014 Order specifically noted thatwhile "all motions for relief, all documents submitted, and all party arguments have been fully considered" the discussion contained in the Order was "limitedto certain matters." The matters specifically discussed inthe February 6, 2014 Order were: 1) the non-applicability ofthe Service Members Civil ReliefAct (108 P.L. 189; 117 Stat. 2835) of2003, 2) Mr. Fowler'sparticipation in the case as a testifying witness, and 3) Mr. Fowler'sparticipation at the hearing as the Respondent's agent (available to consult with, and assist, counsel ofrecord).

Page 2 of6The Respondent's February 10,2014 Motion re-asserts that Mr. Fowler's absence creates problemsfor it, in terms ofhearing procedure and trial strategy. This administrative court is fully

aware ofthe problems created for a party litigant when a witness is unavailable for live testimony, orwhen a preferred business agent is not available for immediate consultation. However, in the instant case, particularly given the length oftime

### Mr. Fowlerhas 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 ofthe 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 thatpreserving Mr. Fowler'stestimonybyperpetuation deposition before he leaves for military duty will make Mr. Fowler's hearingtestimony knownto the FAA before it begins its primafacie case, it is equallytrue that thatthe substance ofMr. Fowler's hearing testimony has already been disclosed to the FAAthroughpre-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 ofcharacterizing Mr. Fowler's known testimony as "nothingnoteworthy." (Response, 2). Obviously, the parties disagree about the importance and impact of

### Mr. Fowler's evidence. That is their prerogative. Butby this stage in a civil regulatoryproceeding, there should be few, ifany, surprises about what Mr. Fowler will testify about, orthe scope ofhis evidence.

Second, taking Mr. Fowler'stestimony by perpetuation depositionpriorto the hearing does not shift the FAA'sburden of"goingfirst" to the Respondent. The FAAmust still appear atthe hearing and present all ofits evidence first. The FAA must establish a primafacie case on each allegedviolation, as well as a prima facie case regarding its proposed civilpenalty oneach violation, before the Respondent is requiredto begin its responsive case. Only afterthe close of the FAA's case-in-chiefwill the Respondent respond orpresent a defense. Atthatpoint, it is the Respondent's decisionto move to admit Mr. Fowler'sperpetuation deposition, presentthe live testimony ofits other witnesses, orintroduce other evidence, inresponse to the FAA's case in chief. Thus, the initial burden ofpresenting a primafacie case, by a preponderance ofthe evidence standard, remains the FAA'sburden. 14 C.F.R. 

### § 13.224.

Third,this administrative court agrees that taking Mr. Fowler's testimony by perpetuation deposition priorto the hearing does require the Respondent to preserve Mr. Fowler'shearing testimony prior to the presentation ofthe FAA'sprima facie case. This is a disadvantage to the Respondent, simply by virtue oftaking testimony outoforder. The administrative court may
even takejudicial notice that it is usually a disadvantage for a party litigant whenone (or more) ofits' witnesses become unavailable for live testimony. It is sometimes a disadvantage to take testimony out oforder. But as the FAAproperly noted, taking testimony out oforder does not

Page 3 of6automatically equate to creating substantial prejudice against a party. (Response, 1-2). Indeed, taking testimony out oforder might be deemed an advantage, since it allows a partythe abilityto 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 maypreserve and utilize Mr. Fowler's testimonybefore he leaves to serve inAfghanistan. 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 ofpostponingthe 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 "thebenefit ofclosing without the burden ofgoing first." (Motion, 1 ). This argument appears to reiterate the Respondent's earlier arguments, in which itobjects to taking Mr.Fowler's testimony out oforder. As discussed above, the FAA still bears theburden ofpresenting evidence at the hearing first, and establishing a prima facie case oneach allegation in its Amended Complaint.

Fifth, the Respondent objects to trying to "correctly anticipate all ofthe FAA's testimony and documentary evidence whentaking Mr. Fowler'sperpetuation deposition." (Motion, 1). This again appears to be an objection by the Respondent to taking 

### Mr. Fowler's testimony out oforder. While the administrative court fully understands the Respondent's preference notto do so, it is a fact that Mr. Fowler will be unavailable for the hearing. As noted earlier herein, it is a fundamental part oflitigation to exercise discovery exchange so thatparty litigants can avoid surprises at the hearing. Litigants exchange information so thatthey may reach resolution on undisputed issues, and gain knowledge and insights onthe disputed matters. Given the lengthy period ofdiscovery exchange in this case, as well as the voluminous materials already submitted in this case for summaryjudgment consideration, boththe 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'spresentation on each issue in dispute. In addition, as already noted in the February 6, 2014 Order, Mr. Fowlerhas 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 onApril18, 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 ofMr. Fowler's deployment, and had misunderstood the deploymentto 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 underlyingMr. I:owler's deployment was in any way relevant. Asproperly noted

Page 4 of6I

by the FAA, nothing in the February 6, 2014 Order indicated that this courtbelieved that Mr. Fowler's deployment was a volunteer action, orthat itmattered inthe ruling. (Response, 3). Indeed, iftheFebruary 6, 2014 Order is read fully, there are multiple references to Mr. Fowler being orderedto deploy (e.g., Order, 2, "received deployment orders"; 

### id. at 3, "assignedto an Air CombatCommand"; 

### id. at 5, "may experience an extension ofhis tour ofduty.").

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 ofMr. Fowler's roles have been thoroughly reviewed, considered, and weighed before reaching a decision onthe Respondent's request for continuance.
Lastly, while it is clearthatthe Respondent would preferto have Mr. Fowlerpresent 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 ofcontinuing the litigation so that Mr. Fowler can be utilized as its preferred representative, the FAA is correct inpointing out thatthe Respondent has presented no evidence or details to support such arguments. (Response, 2). Itis 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 ofits employees, and/or the number and skill level ofits volunteers --all ofwhomthis 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 ofacting as Respondent's agent during the hearing. Equally problematic, the Respondent has offered no caselaw orlegal 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 ofacting onits behalf, and then assert an inability to engage in litigation upon such individual'sprolonged absence.



### II. CONCLUSION

As previously discussed in the February 6, 2014 Order, Mr. Fowleris not a partyto this proceeding. He is one ofseveral ofthe Respondent's witnesses. Throughout this litigation, 

### Mr. Fowler has also served as the Respondent'spreferred agent to "assist [the Respondent's] counsel" during the Hearing. (Mot. 2.) As found inthe February 6, 2014 Order, the Respondent has not shown either good cause grounds or substantial prejudice grounds that support continuance ofthe hearing because ofMr. Fowler's unavailability to be present at the Apri12014 hearing.

Page 5 of6Pursuant to 14 C.F.R. 

### § 13.205(a)(8), based onthe foregoing and after reviewing all relevant caselaw, decisions, regulations, statutory authority, motions, pleadings, and being fully advised;



### ITIS HEREBY ORDERED:

1. The Respondent's February 10,2014Motion for ReliefonReconsideration is denied.

2. The Hearing in this case, set for April22, 2014 through April25, 2014, inAtlanta, Georgia, is reconfirmed.

Attachment: Service List

Page 6 of6SERVICE 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-Suite2W1000

Mr. Christopher Stevenson Complainant's Counsel Office ofthe 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. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 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 orby 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.