In The Matter Of: 

SERVED: February 19,2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2014-0867 

BIRMINGHAM 

FLIGHT CENTER, INC. 

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Case No. 2012S0090053 

Respondent 

ORDER STRIKING THE RESPONDENT'S RESPONSE AND 

DENYING THE FAA'S MOTION TO COMPEL 

On September 1, 2015, an Order Granting the Motion to Amend, Continuing the 

November 2015 Hearing to September 2016, and granting Other Relief was filed . . On October 13, 2015 the FAA filed a Motion to Compel. ("Motion"). This Motion was 

accompanied by a Good Faith Declaration, as previously directed by the Court. 

On November 13, 2015 the Respondent, Birmingham Flight Center, Inc., filed the 

Respondent's Response to the FAA's Motion to Compel ("Response"). 

On November 18,2015 the FAA filed a Reply in Support of Motion to Compel 

("Reply"). As part of this Reply, the FAA moved to strike the Respondent's November 13, 2015 

Response on the ground of untimeliness. 

A. Short Summary of Dispute 

On April 20, 2015 the FAA propounded seven (7) interrogatories to the Respondent. On 

July 7, 2015, after new counsel took over the FAA prosecution, the FAA propounded an 

additional fifteen (15) interrogatories to the Respondent, for a total of twenty-two (22) 

interrogatories_! On August 1, 2015 and August 21, 2015 the Respondent served responses to the 

1 These additional interrogatories were not sequentially numbered from the initial interrogatory packet. The record 

reflects that the FAA propounded its second set of interrogatories before realizing that the first set had previously 

been served by former counsel. As a result, some of the interrogatories are identified by the same number (i.e., 

Interrogatory No. 1 ). For example, the FAA complains that the Respondent asserts it already answered 

Interrogatory No. 1 with the responses it gave to the "former interrogatory #1". (Motion, Ex. D, 1.) 
FAA interrogatories.2 (Motion, 1.) The FAA alleges that the Respondent has failed to respond, or 

adequately respond, to the following nine (9) interrogatories: 1) April20, 2015 Interrogatory No. 

2; and, 2) July 7, 2015 Interrogatory Nos. 1, 2, 4, 6, 7, 8, 9 and 11. (!d. at 5). 

As part of its initial response to the FAA, the Respondent cited to Hilt v. SFC Inc., 170 

F.R.D. 182, 186-187 (D.N.M. Kan. 1997), and asserted that the FAA was misusing 

interrogatories to seek detailed narrative statements on broad issues, in contravention of the 

purpose of interrogatories. (Motion, Ex. C, 2.) In its .filed Response, the Respondent asserted 

that its responses to three (3) interrogatories (i.e., April20, 2016 Int. No.2, and July 7, 2015 Int. 

Nos. 1 and 11) were sufficient, and the FAA's Motion was not supported by law. (Resp. 1-4). 

The Respondent asserted that its responses were proper to four (4) interrogatories (i.e., July 7, 

2015 Int. Nos. 2, 7, 8, and 9), and that the FAA's request for additional information was an 

"unduly burdensome request" that was not favored by the courts. (Resp. 4-5.) The Respondent 

asserted that its response to the July 7, 2015 Int. No.4 was sufficient, and that the FAA's request 

"will not lead to discoverable evidence." (Resp. 5.) Lastly, the Respondent asserted that the 

FAA's July 7, 2015 Int. No.6 was "overly broad" and could not be answered without further 

definition. (Resp. at 6.) 

B. FAA Motion to Strike Response 

The FAA pointed out in its Reply that the Respondent had filed a late Response on 

November 18, 2015, seventeen (17) days after the deadline, with no explanation for the late 

filing. (Reply, 1-2.) The FAA requested that the Response be stricken as untimely. 

The FAA's Rules of Practice provide a ten (10) day deadline for response to any motion. 

14 C.F.R. § 13.218(d). This is more fuliy addressed in the December 16, 2015 Order 3 and will 

not be repeated here. In the instant case, the Respondent neither sought stipulation from FAA 

counsel nor an order of extension from this Court. In the absence of any joint stipulation or an 

' 

order granting an extension of the ten day time period, the untimely Response should be stricken. 

2 The Respondent did not object to the duplication of interrogatory questions, but simply referenced its second set of 

answers back to the first set of interrogatories when duplication was noticed. 

3 See, December 16,2015 Order Striking The Respondent's Untimely Response To The FAA's Motion To Deem 

Admitted, And Granting/Denying Other Relief. 

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C. Brief Overview of Legal Authority Regarding Interrogatories 

Pursuant to 14 C.F.R. § 13.220(k)(l), a party may propound up to thirty (30) 

interrogatories to the opposing side without seeking leave from the Court. In addition, "Each 

subpart of an interrogatory shall be counted as a separate interrogatory." 14 C.F.R. § 

13.220(k)(l). 

1. Federal Rules "Instructive" in FAA Civil Penalty Cases 

When the FAA's Rules ofPractice were adopted in 1990, the FAA Administrator 

explained that its' own rules regarding discovery, although not as detailed as the Federal Rules of 

Civil Procedure ("Rules"), were "already roughly parallel. .. [to] the Federal Rules". 55 Fed. Reg. 

27548,27563 (Jul. 3, 1990) (Discussion of Final Rule).Thus, adding additional discovery 

safeguards, as urged by commentators, was unnecessary. The FAA Administrator also assured 

the public. that the Federal Rules - and case law construing them - would be "instructive" in 

administrative civil penalty cases, for any discovery disputes or alleged abuses that might arise. 

(!d.) 

2. Limitation of Interrogatories 

As noted above, the number of interrogatories a party may propound in civil penalty 

cases is limited. The FAA Administrator generally explained that "[t]hirty interrogatories should 

normally be sufficient to obtain relevant information in the typical civil penalty case." 55 Fed. 

Reg. 27548, 27563 (Jul. 3, 1990) (Discussion of Final Rule). Setting a maximum limitation for 

interrogatories, absent court leave, was "necessary" to "discourage ... unduly burdensome or 

excessive discovery." (!d.) 

3. Reason for Limitation 

The FAA's rule regarding interrogatories is similar to Federal Rule 33, which allows for 

twenty-five (25) interrogatories, "including all discrete subparts" without seeking leave from the 

court.4 (Rule 33(1).) Additional guidance regarding why interrogatories have been limited in 

b.oth FAA cases and in general federal practice may be found in Rule 33, which was amended in 

4 Both 14 C.F.R. § 13.220(1<)(2) and Rule 33(a)(2) provide that a Court may grant leave to a party to propound 

additional interrogatories upon motion and proof of good cause. · 

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1993 to set a maximum of twenty-five (25) interrogatories per party. l:ri connection with this 

1993 amendment, the Advisory Committee explained that setting a limit on interrogatories 

"reduce[ d] the frequenci' of interrogatory use, while at the same time "increas[ ing].:. [its] ... 

efficiency", especially since much of the information previously sought by interrogatories wa,s 

now disclosable under Rule 26(a)(l)-(3). Rule 33, Advisory Cmtee Notes, 1993 Amendments, 

Subdivision (a). The Advisory Committee also warned that parties "cannot evade this 

presumptive limitation through the device of joining as "subparts" questions that seek 

information about discrete separate subjects." (Id.) The goal was to allow relevant, necessary 

discovery that was proportional to the needs of the case. (Id). See also, Rule 26(b)(2)(c). 

D. Brief Overview of Interrogatory Form, Proof, Response and Objection 

1. Short and Specific Form 

Interrogatories should be short and specifi~. § 21.01[B] Disadvantages, DISCPR 

§21.01 [B]. They should be framed so that a responsive answer will be material to the issues. 27 

C.J.S. Discovery§ 76 (December, 2015). To be effective, and to avoid objection, interrogatories 

should be few in number and targeted at discrete issues, rather than blanketing the case. William 

W. Schwarzer et al., Civil Discovery and Mandatory Disclosure: A Guide to Efficient Practice, 

4-5 to 4-7 (2d ed.l994). 

Each interrogatory should consist of a brief, simple, direct, and unambiguous question, 

dealing with one point only. The question should be objective and nonargumentative. 

They should not seek narrative answers or attempt to argue, cross-examine, or impeach. 

They should be written so that the question and the expected answer can be understood 

easily when read at trial. 

Schwarzer et al., supra, at 4-10 to 4-11. 

2. Proportional to ProofNeeded 

To be proportional to the evidence, interrogatories should inquire about material facts. 

They should seek to elicit information that is necessary to the interrogating party's proof of its 

prima facie case. 27 C.J.S. Discovery§ 83 (Dec. 2015). Interrogatories differ from depositions 

in that information sought in interrogatories "does not presuppose or contemplate details of 

evidence." Colorado Mill & Elevator Co. v. Am. Cyanamid Co., 11 F.R.D. 580, 581-582 (W.D. 

Mo. 1951) Interrogatories that are not proportional to an interrogator's proof may be excluded as 

improper in scope when they are merely of a "fishing" character, or seeking to obtain the proof 

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or evidence of the responding party. 27 C.J.S. Discovery§ 83 (Dec. 201 5). "It was never 

intended that a party should by interrogatories compel the adverse party to submit every item of 

evidence he expects to produce on the trial ofthe case." Colorado Mill & Elevator Co., 11 

F.R.D. at 582. 

3. Response and Objection 

In general, a party responding to interrogatories must furnish information that 1s available 

to it, if it can be given without undue labor and expense. 8B Fed. Prac. & Proc. Civ. § 2174 (3d 

ed.); La Chemise Lacoste v. Alligator Co., Inc., 60 F.R.D. 164 (D. Del. 1973). 

However, interrogatories that seek to require the opponent to state every fact, identify 

every witness, and specify each document supporting each allegation of the complaint or answer 

are "blunderbuss interrogatories" which are likely to be found objectionable as overbroad and 

too burdensome. 8B Fed. Prac. & Proc; Civ. § 2174 (3d ed.); See also, Lawrence v. First Kansas 

Bank & Trust Co., 169 F.R.D. 657, 663-64 (D. Kan. 1996). 

[A] party crumot ordinarily be forced to prepare its opponent's case. Consequently it was 

well :recognized before Rule 26(b)(2)(C)'s explicit proportionality limits were adopted 

that interrogatories that require a party to mal<e extensive investigations, research, or 

compilation or evaluation of data for the oppos.ing party are in many circumstances 

improper. 

8B Fed. Prac. & Proc. Civ. § 2174 (3d ed.) 

E. Brief Discussion 

All the arguments submitted by the FAA were fully considered. However, only certain 

matters will be highlighted in this discussion. 

1. Interrogatory Limitation Includes Subparts 

First it should be noted, as earlier stated herein, that a party in a civil penalty case may 

propound up to thirty (30) interrogatories, although"[ e ]ach subpart of an interrogatory shall be 

counted as a separate interrogatory." 14 C.F.R. § 13.220(k)(l). 

The majority of the FAA's interrogatories, propounded on April20, 2015 and July 7, 

2015, were not concise and did not contain questions with "counted" subparts pursuant to the 

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requirements of 14 C.P.R.§ 13.220(k)(1). Instead, they contained compound questions coupled 

with subparts that were not identified or counted as separate interrogatories. For example: 

If you assert that the October 3, 2012 and/or October 12, 2012 statements by Alan Long 

contain any inaccuracies, falsehoods, mischaracterizations, or other errors,. please 

specifically identify such errors, describe in detail your basis for believing that the 

statement is in error, describe what you believe to be the actual situation, and describe 

why Mr. Long made the erroneous statement. 

July 7, 2015 FAA Int. No.7. 

Thus, FAA Int. No. 7 encompasses two (2) separate time frames and has a minimum of 

three (3) subparts. 5 Pursuant to 14 C.P.R. § 13.220(k)(l) this single interrogatory should be 

counted as eight (8) interrogatories. Given the total of twenty-two (22) interrogatories 

propounded by the FAA, with a majority of those 22 interrogatories including multiple (but 

uncounted) subparts, the FAA interrogatories far exceed the maximum limit ofthirty (30) 

interrogatories allowed. 

2. Interrogatories Overbroad and Burdensome 

The FAA's Interrogatories, as a whole, are a fishing expedition which is overbroad and 

burdensome. They are not crafted to seek specific items of proof material to the FAA's case in 

chief. They do not seek to narrow the material issues by pointed inquiry. Instead, the FAA's 

interrogatories seek extensive narration, data compilation, and reports from the Respondent, on 

every aspect of the complaint and the respondent's answer. This is a misuse of interrogatories as 

a discovery tool, as discussed above. See also, Hilt v. SFC Inc., 170 F.R.D. 182 (D. Kan. 

1997)(No justification was presented for the interrogatories, which indiscriminately swept the 

entire pleading, including allegations which were admitted, with an excessive number of 

interrogatories, and in essence required a running narrative of the entire case); Steil v. Humana 

Kansas City, Inc., 197 F.R.D. 445,447 (D. Kan. 2000)(The scope ofthe interrogatories seeking 

"every fact and document," is overly broad and unduly burdensome on plaintiff); Flour Mills of 

America, Inc. v. Pace, 75 F.R.D. 676, 680 (E.D. Okla. 1977)(An objection will be sustained if 

5 While it is possible that an, opposing party might argue that each descriptive (i.e., inaccuracies, falsehoods, 

mischaracterizations, or other errors) identify different issues, and therefore should also count as separate questions, 

such argument is not before the court in this case. 

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either a particular interrogatory or a set of interrogatories is thought by the court to be so broad 

and all inclusive as to be burdensome); and Kainz v. Anheuser-Busch, Inc., 15 F.R.D. 242 (N.D. 

Ill. 1954) (Interrogatories should not be used as a device to compel the opposing party to prepare 

the interrogator's case for him). 

F. Conclusion 

Given the fact that the FAA's interrogatories are not written in compliance with 14 

C.P.R.§ 13.220(k)(1), exceed the maximum number of allowable interrogatories, and as a whole 

are overbroad and unduly burdensome, the FAA's Motion should be denied in its entirety. 

Pursuant to 14 C.P.R. § 13.205 and 14 C.F.R. § 13.220, and after reviewing all relevant 

caselaw, regulation, statutory authority, and being fully advised;, 

IT iS HEREBY ORDERED: 

1. The FAA's Motion to Strike the Respondent's Response is granted. 

2. The Respondent's November 13,2015 Response is stricken on the grounds of 

untimeliness·. 

3. The FAA's October 13, 2015 Motion to Compel is denied in its entirety. 

Attachment: Service List 

Page 7 of7 
Docket No. FAA-2014-0867 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1 0006 

ONE COPY 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel, ASO-7 

Southern Region 

1701 Columbia Avenue 

College Park, GA 30337 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Paul R. Borth 

Respondent's Counsel 

Barnett & Borth, LLC 

800 Waukegan Road, Suite 200 

Glenview, IL 60025-4387 

TEL: 847-724-5520 

FAX: 815-356-7042 

Judge J .E. Sullivan 

US. 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: 202-366-6941 

FAX: 202-366-7536 

Birmingham Flight Center, Inc. 

Respondent 

4243 East Lake Blvd. 

Birmingham, AL 35217 

6 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 2Wl000, Washington, 

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