### SERVED: January 

### 18, 2017 

# u.s. DEPARTMENT OF TRANSPORTATIONDEPARTMENT

## OF OFFICE OF HEARINGS TRANSPORTATION WASHINGTON, DC 

## lOll J

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### Q 

## JS P 2= 

## 01 In The Matter Of: ) ) 

### ) ) ) 

## DOCKET OPERATIONS DocketNo. FAA-2015-1319 WILLIAM A. CURTRIGHT CaseNo. 2014NM090046 Respondent


### ORDER GRANTING IN PART AND DENYING IN PART THE RESPONDENT'S AMENDED MOTION TO COMPEL

On September21, 2016, an Order Setting aThird Litigation Conference and Granting/Denying OtherRelief("September21, 2016 Order") was filed. Amongotherthings, this September21, 2016 Orderdirectedthe partiesto immediately initiate general discovery requests, so that responses to discovery requests would be served on orbefore December2. 20I6 (i.e., beforethe next scheduled Conference on December 8, 2016). (Sept. 21,2016 Order, 2-3**~~** 6, 9, and I1.) On December 6, 2016 (i.e., four (4) days afterthe December 2, 2016 due date for service ofdiscovery responses) the

### prose Respondent, Mr. William A. Curtright, filed the Respondents [sic] Motion to Compel ("Motionto Compel"). Two (2) days later, on December 8, 2016 (1:30 p.m. ET), the parties convened for the scheduledTelephone Conference. Duringthis Telephone Conference, the FAA offered an oral response to the Respondent's Motionto Compel. The Court noted that it would look carefully at boththe Respondent's December6, 2016 Motion to Compel andthe FAA'sDecember 6, 2016 discovery responses, and then issue a written ruling. On January 6, 2017 the Respondentfiled the Respondents [sic] Amended Motion to Compel ("Amended Motion"). That same day, the Respondent filed a two (2) page Letter, in which he partially repeated his amended motion to compel discovery. (Jan. 6, 2017 Letter, l).A. Short Summary ofDiscovery Dispute On October 31, 2016 (i.e., approximately five weeks after the Court ordered immediate discovery to occur), the

### prose Respondent served the FAA with the following discovery requests: 1) Twenty (20) Interrogatories, 2) One (1) Request for Production, and, 3) Fourteen (14) RequestsforAdmission. Pursuantto the September21,2016 Order and 14 C.F.R. 

### § 13.220(d), the FAA'sresponses to these discovery requests were due "30 days or less" after service (i.e., on orbeforeNovember 30, 2016), unless the parties agreed to an alternate time. (Sept. 21,2016 Order, 2**~** 6.) It was undisputed that the FAA did not provide discovery responses to the Respondent's discovery requests on or before the November 30, 2016 deadline. The FAA also did not respond to the Respondent's October 31,2016 discovery requests prior to the Court's deadline of December 2, 2016. (See, Sept. 21,2016 Order, 3**~** 9.) On December 5, 2016, the Respondent contactedthe FAA by both email and telephone, andrequested that theFAAprovide responses within 24 hours (i.e., by December 6, 2016), orthe Respondent would file a Motion to Compel. (Amd. Mot., 1**~** 2; and Mot. to Compel, 2**~** 2) The following day, on December 6, 2016, the FAA provided Responses to the Respondent's Discovery Requests. These December 6, 2016 FAA Responses contained, among othermaterial, certain objections to various discovery requests. That same day, upon receipt ofthe FAA's Responses, the Respondent filed his Motion to Compel. Two days later, during the December 8, 2016 Telephone Conference, the FAA orally asserted that the Respondent's Motionto Compel was frivolous, since the FAA had served the Respondent with all relevant discovery on December 6, 2016**(i.e~,** the same day the Respondent filed his Motion to Compel). In contrast, the Respondent agreed that the FAA had provided some answers to his discovery requests, but he asserted that the FAA had failed to provide full and complete discovery. The Court did not rule onthe matterimmediately, sincepursuant to 14 C.F.R. 

### § 13.218(d), the FAA'swritten Response (ifany) to the Respondent's Motion to Compel was not due until December 16, 2016. The record reflects that the FAA did not subsequently file any written Response.

Page 2 of8Thereafter, on January 6, 2017, thepro se Respondent filed the Respondents [sic] Amended Motion to Compel ("Amended Motion"). This Amended Motion incorporated by reference the factual allegations the Respondent had previously made in his December 6, 2016 Motionto Compel (Amd. Mot., 1**~** 1). The Amended Motion further specified that it sought to compel responses to the Respondent's Discovery Requests as follows: a) Respondent's Interrogatory Nos. 4, 5, 6, 7, 8, 9, 18, 19, and 20; and, b) Respondent's Request for Admission No.7.

·In the alternative, the Respondent requested that the FAA'spleadings be struck, and that the action be dismissed. (Amd. Mot., 2**~** 3). The Respondent then repeated specific portions of his Amended Motion to Compel in a separate Letter, filed on January 6, 2017 (i.e., the same day his Amended Motion to Compel was filed). B. In General: Scope and**I~'orm** ofInterrogatory Requests Pursuantto 14 C.F.R. § 13.220(k)(l), apartymay propound up to thirty (30) interrogatories to the opposing side without seeking leavefrom the Court. In addition, "Each subpart ofan interrogatory shall be counted as a separate interrogatory." 14 C.F.R. 

### § 13.220(k)(l). This Court has previously provided, in a different case, an overviewregarding the both the reason for the limitation ofinterrogatories in FAA civil penalty proceedings, as well as how interrogatories should be narrowly crafted and written to be proportional to the interrogatingparty's proofofits ownprima facie case. This overview, contained in In re: Birmingham Flight Center, Inc., 1 is incorporated and adopted by reference herein. C. Respondent's Interrogatory Requests Essentially, Interrogatories should be crafted to be pointed inquiry regarding specific items ofproofmaterial to the requestingparty'scase in chief. Interrogatories should never seek extensive narration, data compilation, and reports from the opposingparty, on a wide variety of mattersregarding the opposingparty's fact compilations, case analysis, settlementoffers, and potential case presentation. Submitting overbroad interrogatories to the opposing side will result

1In re: Birmingham Flight Center, Inc., Docket No. F AA-20 14-0867. Order Striking the Respondent's Response and Denyingthe FAA's Motion to Compel, 3-5 (February 19, 20 16). Page 3 of8in objections, and is a misuse ofthe interrogatories as a discovery tool. 

### See, e.g., In re: Birmingham Flight Center, Inc. (Id.at 6-7); 

### see also, 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 onplaintiff); 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). 1. Respondent's Interrogatory Nos. 4 and 5 In Interrogatory No. 4, the Respondent requested that the FAA disclose, "with specificity", all ofthe "facts and arguments"that identified why the FAA "believed"that that the proposed $11,000 civil penalty was "appropriate." The FAA objected on the grounds the question called for a "legal opinion" and also failed to seek "admissible" information. Without waiving objection, the FAA further referred the Respondent to "FAA Order 2150.38 Appendix Bpage 

### 8." In Interrogatory No. 5, the Respondent requested that the FAA disclose, with specificity", all the "facts and arguments"that explained "why"the FAA was proposing an $11 ,000 civil penalty, and what formed the basis for why the FAA'sproposal ofthe maximum penalty. The FAA objected, citingto its objection language to Interrogatory No. 4. The FAA's objections to Interrogatory Nos. 4 and 5 may only be partially sustained, and the Respondent's Amended Motion to Compel should be partially granted. It is certainly true that any 

### legal arguments that the FAA wishes to make about its proposed $11,000 civil penalty would likely be protected under an attomey work product privilege. But 

### facts and 

### factual circumstances considered and/or utilized by the FAA in calculating the $11 ,000 proposed civil penalty are relevant and fully admissible as evidence, and should be disclosed. This information is critical to the Respondent's defensive case, and the FAA has failed to show any basis for refusing to disclose it. For example, accordingto FAA Order2150.38 Chapter 

### 8, when the FAA investigates and subsequently alleges a violation, the FAA personnel "analyze whethereach ofthe factors in Chapter 7, paragraph 4 orAppendix C is relevant and applies to the case." (FAA Order2150.3B
Page 4 of8Chap. 8, 8-2 (b)(2).) The 

### facts thatthe FAA should considerinclude, but are not limited to, the following: 1) the nature ofthe violation (including how safety was affected); 2) whetherthe violation was inadvertent and not deliberate; 3) the certificate holder's level ofexperience; 4)the use ofthe certificate; 5) the violation history; 6) the action taken by the employer orother authority; 7) decisional law; 8) the alleged violator's ability to absorb the sanction; 9) the consistency ofthe sanction; 1 0) whetherthe violation was reported voluntarily; and, 11) any corrective action taken by the alleged violator. (!d.). In addition, the FAA is also supposed to utilize the guidance in Chapter 7 to determine ifthere are any mitigating oraggravating factors. (/d.) This fact informationregarding the proposed $11,000 civil penalty is fully disclosable. Further, the FAA's general responseto Interrogatory Nos. 4 and 5 referring the Respondent to "FAA Order 2150.3B Appendix B page 8" is inadequate, particularly since on "page 8" there are multiple penalty ranges listed for various types ofoffenses involving both small business and individuals. The FAA should specifically identify which penalty range on page 8 is applicable to the Respondent's case. 2. Interrogatory Nos. 6, 7, 8, and 9 In Interrogatory Nos. 6, 7, 8 and 9, the Respondent requested that the FAA disclose, with specificity", all the "facts and arguments" that supported the FAA'smultiple settlement offers to the Respondent inthis case. In response, the FAA objected to each Interrogatory, on the grounds of"irrelevant, not for infonnation likely to lead to admissible evidence:" It is well-established that settlement offers are not admissible as evidence, eitherto "prove or disprove the validity or amount ofa disputed claim." Fed. R. Civ. P. 408(a). This general prohibition helps promote a strong "public policy" favoring compromise ofdisputes wheneverpossible, as well as encouraging open and good faith settlement discussions between the parties. (!d., Advisory Cmtee Notes, 1972 Prop. Rules Discussion). The Respondent's Amended Motion to Compel the FAA to provide further responses to Interrogatory Nos. 6, 7. 8 and 9 should be denied.

Page 5 of83. InterrogatoryNo. 18 In Interrogatory No. 18, the Respondent combined both an interrogatory question regarding FAA InspectorConroy, 2 as well as arequestregarding the Respondent's fourteen (14) Requests for Admission. In response, the FAA objected to Interrogatory No. 18 on "Not Applicable" grounds. First, the portion ofInterrogatory No. 18 in which the Respondent seeks broad conversation disclosuresinvolvingFAA InspectorConroy and FAA counsel is objectionable on the grounds ofvagueness, relevance, and possible work product protection. Itis likely thatthe FAA counsel inthis case has had at least one (ifnot many) conversations with FAA Inspector Conroy, who is an Inspectorinvolved in boththis case, but also otherFAA cases. The Respondent's inquiry is so**bn~ad** in nature itwould encompass any conversationthe FAA counsel might have had with Inspector Conroy, about any topic or about any case. at any time. since they first met. Italso has the potential ofinquiring into work product discussions in this case, which is privileged information. Second, the portion ofInterrogatory No. 18 in which the Respondent seeks detailed discussion regarding any denial by the FAA to any ofthe Respondent's Request for Admission is a misuse ofthe interrogatory tool, especially given that responses to Requests for Admission are viewed under a separate standard. 

### See, e.g., Steveri Baicker-McKee, et al., 

### supra, 952 and 954 (RFAs may be admitted ordenied with little or no explanation.) The Respondent's Amended Motion to Compel the FAA to provide further response to Interrogatory No. 18 shouldbe denied. 4. InterrogatoryNos. 19. and 20 In InterrogatoryNos. 19 and 20, the Respondent requested that the FAA disclose various employment and wage information regarding the FAA's counsel. In response, the FAA objected on the grounds of"irrelevant, not for information likely to lead to admissible evide.nce." The Respondent's Amended Motionto Compel the FAA to provide further responses to Interrogatory Nos. 19 and 20 should be denied.

2 In Interrogatory No. 18, the Respondent identifies the FAA lnspectora as "ASI Comoy [sic]." The CoUJt presumes, on behalfofthe Respondent, that this is a clerical error, and thatthe Respondent intended to identify Inspector Conroy. Page 6 of8

### D. Request.forAdmission No.7 1. Purpose ofRequests for Admission AlthoughRequests for Admission ("RFAs") are typically listed with other "'discovery'' tools inlitigationpractice (see, 14 C.F.R. § 13.220(1) and Fed. R. Civ. P. 35), RFAs are no! used to discover information. 27 CmpusJuris 2d§ 164; 1 OA Federal Procedure L.Ed: §26:70I (2013); StevenBaicker-McKee, et.aL supra, at 953. Instead, RFAs serve two (2) ''vital purposes", both ofwhich are designed to ''reducetrial time:· Rule 36, Advisory Comm. Notes, 1970 Amendment. RFAs allow an expedition oftrial matters by "'establishingas true" certain undisputed "material facts ofa**ca~~** without the necessity offonnal proofat trial.'"

### S'ECv. Goldstone, 300 F.R.D. 505, 523 (D. New Mex. 2014)(quotingKeen v. DetroitDieselAllison, 569F.2d 547, 554 

### (101 h Cir. 1978).



### /d. Admissions are sought, tirstto facilitate proofwith respectto issues thatcannot be eliminated from the case, and secondly, to narrow the issues by eliminating thosethat can be.

Thus, RFAs are intended to help clarify the material issues and "'shorten. simplify. facilitate and expeditethe trial" by narrowing the dispute to only those issues that are genuinely disputed. '2.7 CorpusJuris 2d § 164 (West Publishing, 2011 ); See also, lOA Federal Procedure 

### L.I:::d. §26:701 (2013). 2. Discussion In the instant case, the Respondent propounded fourteen (14) Requests for Admission. In response, theFAA admitted all RFAs exceptRespondent's Request for AdmissionNo.7, which requested thatthe FAA admitto the authenticity ofa document purportingto be a certain FAA case decision, identified in part as FAA OrderNo. 99-7.3 The FAA denied authenticity ofthe document on the basis oflack ofknowledge. The FAA'sresponse to the Respondent's Request for Admission No.7 is sufficient. See. Steven Baicker-McKee, et.al, supra, at 952-953. The,Respondent'sAmended Motion to Compel

3 Acopy ofthis case decision was not submitted in either the Respondent's December6, 2016 Motion to Compel or the Respondent's January 17, 2017 Amended Motion to Compel. Page 7 of8the FAAto provide a more sufficient answerto Respondent's Request for AdmissionNo. 7 should be denied. Nevertheless, it should be noted that this lack ofadmission by the FAA does not precludethe Respondent from citingto FAA OrderNo. 99-7 as authority in this proceeding, ifit is applicable.
E. Conclusion Pursuant to 14 C.F.R. 

### § 13.205, 13.218, and Fed. R. Civ. P. 408(a), and after reviewing all relevant caselaw, regulations, statutory authority, and being fully advised; IT IS HEREBY ORDERED:
1. The Respondent's January 6, 2017 Amended Motion to Compel is granted in part, in regard to the Respondent's InterrogatoryNos. 4 and 5. 2. On orbefore J?ebruary 

### 21, 2016, the FAA shall specifically disclose to the Respondent which penalty range in FAA Order 2150.38 Appendix B page 8 is applicable in this case. The FAA shall also disclose to the Respondent all the facts and factual circumstances considered and/orutilized by the FAA in calculating the proposed $11,000 civil penalty. 3. The Respondent'sJanuary 6, 2017 Amended Motion to Compel is denied in part. The Respondent's request to compel the FAA to provide additional responses to the Respondent's Interrogatory Nos. 6, 7, 8, 9, 18, 19, and 20, and to the Respondent's Request for AdmissionNo.7, is denied. 4. The Respondent's alternative motionrequestto strike the FAA's pleadings and dismiss the action is moot. 5. Forclarifications ofthis order orquestions with regard to the proceduresto be followed inthis case, please contactMr. Cody L. Smith, Attorney-Advisor at the Office of Hearings (202-366-6941).

Jud

Attachment: Service List

Page 8 of8

## . ,. DocketNo. FAA-2015-1319 (Civil Penalty Action) 

### SERVICE LIST- BYU.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--Suite2W10004

Mr. David F. Shayne 

### Complainant's Counsel Federal Aviation Administration Northwest Mountain Region, ANM-7 1601 LindAvenue S.W. Renton, W A 98057 TEL: 425-227-1847 FAX: 425-227-1007 Dr. William Ames Curtright, DBA 

### Respondent P.O. Box 1350 Jefferson, OR97352 TEL: 503-209-7388 FAX: 503-485-0812 Judge J.E. Sullivan 

### US. AdministrativeLawJudge U.S. DepartmentofTransportation Office ofHearings, M-20 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 ONE COPY



## •

4 Service was byU.S. Mail. Forservice in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2\VIOOO, Washington. DC 20591; Attention: Hearing Docket Clerk, AGC-430.