UNITED STATES DEPARTMENT OF TRANSPORTATION FEDERAL AVIATIONADMINISTRATION WASHINGTON,DC Inthe Matter of: BIRMINGHAMFLIGHT CENTER FAA OrderNo. 2016-5 FDMS No. FAA-2014-086i Served: December 22,2016 ORDERPARTIALLY GRANTING COMPLAINANT'S INTERLOCUTORY APPEAL OF RIGHT2 This interlocutory appeal challenges a June 3, 2016 sanctions order ("Order") issued by the Administrative Law Judge ("ALJ") in this civil penalty action brought by the Federal Aviation Administration ("FAA" or "Complainant") against Birmingham Flight Center ("BFC" or "Respondent"). The 41-page Order struck from the FAA's Complaint allegations that BFC had operated Cessna Citation JetN525LP as apassenger-carryingflight from Birmingham, Alabama, to Destin, Florida, for compensation or hire, in violation ofF AA regulations. The Order barred Complainant from introducing any evidence regarding the allegations, finding that during the investigation ofthe flight, the FAA Inspector:

• Failedto retain documents; • "Polluted" athird-partywitnessbymaking statements critical ofBFC; • Promisedconfidentialityto that witness; and • Discouragedthatwitness from sharinginformation with BFC. The ALJ also found that the Complainant's attorney wrongfully attempted to discourage a witness from complyingwith a subpoena duces tecum servedbyBFC's counsel. 3

1 Generally, materials filedintheFAAHearingDocket (exceptformaterials filed in security cases) are also available for viewing at http://www.regulations.gov. 14 C.F.R. § 13.210(e)(l).
2 The Administrator's civilpenalty decisions, along withindexes ofthe decisions, the rules ofpractice, and otherinformation, are available onthe Internet atthe following address: www faa.gov/ about/ office_ org/headquarters _offices/ age/pol_ adjudication/ AGC400/Civi/_Pena/ty/. See 14 C.F.R. § 13.210(e)(2).
3 Orderat 34, 39.Complainant's interlocutory appeal under 14 C.F.R. § 13.219(c)(3) contends that the ALJ exceeded her limited sanctioning authority under the applicable regulations, and requests thatthe FAA decisionmaker vacate the Order and direct that this matter be reassigned to another ALJ. Forthe reasons set forth herein:

• Complainant's interlocutory appeal is granted inpart;
• The Order is reversed and vacated, and the case IS remanded to the ALJ for further proceedings consistent withthis Decision; and

• Inasmuch as the question ofwhether the ALJ prejudged the credibility ofthe witnesses is not properly before the FAA decisionmaker in this interlocutory appeal, Complainant's request that the Chief Administrative Law Judge reassign this matter to another ALJ is denied. 4 I. Jurisdiction and Scope ofReview Complainant's interlocutory appeal is a matter of right. The scope of review is limited to determining the legal issue as to whether, as a matter of law, the ALJ imposed a sanction authorized pursuantto 14 C.F.R. part 13, Subpart G. However, in orderto determine whetherthe ALJhad sanction authority under 14 C.F.R. §§ 13.217 and 13.220, and whether any sanctionwas proportionate to the underlying conduct, it is appropriate to review the ALJ's factual findings to determine whether each finding offact is supportedby a preponderance ofthe reliable, probative and substantial evidence. 14 C.F.R. § 13.233(b)(l). II. Discussion A. ALJs Have LimitedAuthority to Impose Sanctions 14 C.F.R. § 13.205(b) expressly circumscribes the ALJ's sanctions authority in two distinctways

- it limits the conduct for which sanctions may be imposed and the types ofsanctions that may be imposed: (b) 

### Limitations on the power ofthe administrative lawjudge. The administrative lawjudge shall not issue an order ofcontempt, award costs to any party, or impose

4 The ALImaydisqualifY herselfifshe deems it appropriate. 14 C.F.R. § 13.205(c). Also, Complainant may file a motion for disqualification with the ALIunder 14 C.F.R. § 13.218(t)(6).

2any sanction not specified in this subpart. Ifthe administrative lawjudge imposes any sanction not specified in this subpart, a party may file an interlocutory appeal of rightwiththe FAAdecisionmakerpursuantto § l3.219(c)(4)[sic] ofthis subpart. This section does not preclude an administrative lawjudge from issuing an orderthat bars a person from a specific proceeding based on a finding ofobstreperous or disruptive behaviorinthat specific proceeding. (emphasis added). The ALIreferenced and relied ontwo regulatoryprovisionsto impose sanctions:

• § 13.217(f)- which authorizes sanctions for failure to comply with ajoint schedule; and • § l3.220(n)

- which authorizes sanctions for failure to comply with a discovery order or orderto compel discovery.5 Under eitherprovision, the sanctions mayinclude:

• Striking a portion ofthe party'spleadings; • Precludingthe party'sprehearing or discovery motions; • Precludingthe admission ofaportion oftheparty's evidence atthe hearing; or • Precluding a portion ofthe testimony ofthe party's witnesses at the hearing. Thus, the only legal issue to be decided at this time in this interlocutory appeal of right is whether the ALI's sanctions decision is supported by the Complainant's failure to comply with either thejoint schedule (§ l3.217(f)) or a discovery order or an order to compel discovery (§ 13.220(n)). Becauseno hearing was held on the conduct issues ofconcernto the ALI, she failed to makethe requisite findings ordeterminations as to either:
• Whether they were prohibited by, or bore any relationship to, the subsequently-issued jointscheduling ordiscovery orders; or
• The circumstancesthat gaveriseto such conduct; and

• Howthe conduct prejudiced the ALI's ability to make fair and impartial finding offacts after a hearing. 

### B. Most of Complainant's Actions or Inaction Occurred Prior to Entry of a Discovery orJoint Scheduling Order The ALJ's Order primarily is based on the FAA Investigator's actions and inactions that allegedly occurred in 2012 and 2013 6
, before either the Respondent's November 26, 2014

5 Orderat41. 14 C.F.R. §§ 13.217(f) and !3.220(n). 3Request for Hearing orthe April 7, 2015 Joint Discovery Orders.7 Thus, the regulatory basis for the ALJ's sanctions order is undermined by the lack of temporal proximity between the Investigator's actions and inactions in 2012 and 2013 and either the Respondent's Request for a Hearing orthe ALJ's entry ofscheduling anddiscovery orders. C. ALJ's Four Other Referenced Sources ofAuthority Nonetheless, the ALJ also justified her sanctions Order by referencing and relying on four disparate sources ofauthority, including:

• FAA Order 2150.3B; "FAA Compliance and EnforcementProgram;" • TheAmericanBarAssociation's Model Rules ofProfessional Conduct; • Portions oftheregulatory noticepublishedin the Federal Registerfor Part 13;8 and • By analogy, the inherent authority ofFederal courts under Article III ofthe United States Constitution.
These sources are reviewed to determine whether, singly or in tandem, they provide appropriate supportforthe ALJ's sanctions decision. I. 

### FAA Order 2150.3B. FAA Order 2150.3B establishes procedures and requirements with regard to the actions ofFAA investigators. Indeed, it evidences the Agency's commitmentto

6 These actions included multiple "condemnations" ofRespondent in email messages as the investigator worked with a key witness, Dr. Alan Long, from September 21, 2012 to October 13, 2012 (Order at 14- 1

7). It is noted that seven enumerated emails listed on pages 16-17 ofthe Order refer to emails from October 3to October 12, "2016," with the citation to Exhibit J ofthe original Motion for Sanctions. The cited exhibit, however, shows that the exchanges occurred in "2012." Given that the Order was issued in 2016, the erroneously stated years in the Order's citations are best viewed as innocuous typographical errors, rather than findings offact that are unsupported bythe record. These "condemnations," in the view ofthe ALI, "polluted"the witness (Order at 18). Relying on the text ofthese messages, the ALI also found that the investigator encouraged Dr. Long not to cooperate with the Respondent, even after the investigator sent a Letter ofInvestigation that notified the Respondent ofthe need to preserve records (Order at 21). Faulting the investigator further, the ALI found that contrary to established FAA procedures, the investigator deleted email communications relevant to the case in the "fall of2013" (Order at 23, 25).

7 Order at 3, n.5 and n.6.
8 Order at 11-14, and40. 4securing and preserving evidence,9 securing reliable witness statements, 10 and appropriately interviewing witnesses during the investigation. 11 Itexpresslyrequires FAApersonnel "to use their experience and sound judgment in carrying out their compliance and enforcement responsibilities." 12 Those are essential obligations of all FAA personnel with regulatory compliance and enforcement responsibilities and nothing in this decision obviates those obligations. However, as the first page of Order 2150.3B clearly and unambiguously provides, "This order does not create any right or benefit, substantive or procedural, enforceable at lawbyanyparty againstthe FAA, its officers, orits employees." 13 Thus, enforcement of the investigative processes and standards set forth in FAA Order 2150.3B is a management duty ofthe FAA14

- the Order simply does not confer a right on Respondent to enforce these management procedures and requirements, and certainly it provides no authority to the ALJ to supervise an FAA investigator's conduct during the Agency's investigative stage ofa matter. Accordingly, FAA Order 2150.3B provides no basis for theALJ's sanction decision. 

### 2. ABA Model Rules o(Pro(essional Conduct. Similarly, for several reasons the ALJ cannot rely on the ABA Model Rules ofProfessional Conduct, Rules 3.4 and 3.8 (2014 ed.) as a source ofher sanctions authority. 15 First, neither Rule 3.4 nor Rule 3.8 applies to the conduct ofthe Inspector in this case. The pertinent sections ofRule 3.4- Rule 3.4(a), (e) and (f)-

9 FAA Order 2150.3B (thru change II), atpage 4-12, -,r IO.a. (Oct. I, 2007)

10 Idat page 4-15, -,r IO.c.(6).
u!d. atpage4-14, -,r IO.c.(3).
12 Id. atpage 1-1, -,r2.b.

13 !d. atpage 1-1, -,r 2.c. Ofcourse, the Agency expects and encourages ALJsto refer for Agency review concerns aboutthe conduct ofany Agency employee.
14As set forth in SectionII.E herein, the FAA exercisedthat managementresponsibilityby the Agency's ChiefCounsel asking for and my directing the Agency's Office ofAudit and Evaluation to conduct a thorough and prompt interual review ofboththe Inspector's and Counsel'shandling ofthis matter and to reportto me the results ofsuch investigation.
15 Order at 13-14,28-29. 5

### prohibit certain conduct by attorneys, not investigators. And, Rule 3.8 applies to the responsibilities of prosecutors in criminal matters, not to civil or administrative actions. Second, nothing in the applicable Agency regulations

- §§ 13.205, 13.217 and 13.220

- establishing the scope of an ALI's sanctions authorizes the ALI 

### to impose a sanction for violations ofthe ABA's Model Rules. 3. Part 13 Rules of Practice fOr FAA Civil PenaltyActions. Finally, the ALI's reliance on passages found in the Federal Register discussion of the Rules of Practice for FAA Civil Penalty Actions; Final Rule, published on July 3, 1990, is misplaced. None ofreferenced portions suggest that the FAA intended the Rules to provide ALI

### s broad authority to sanction the Complainant for actions prior to the filing of Respondent's Request for Hearing. For example, in one passage, the FAA explained generally that "there are ample protections built into the FAA's adjudicative and appeal processes to check overzealous prosecution and ensure a fair adjudication based on the facts and the law." 16 

### However, the protections to whichthe FAA referred are those set forth in the proposedrules themselves: providing for the separation of functions by DOT ALis, FAA attorneys who prosecute cases and the FAA decisionmaker who resolves appeals; and the right ofa respondent to petition a United States Court ofAppeals for review of an Administrator's decision. Those enumerated protections simply do notexpand the ALJ's regulatory proscribed sanctions authoritybeyond§ 13.217(f)) and § 13.220(n)) to include the ALI 

### having general oversight ofFAA Inspectors conducting investigations in the regular course oftheir duties. Oversight ofFAA employees during an investigationprior to the Request for Hearing or issuance ofa Discovery or Joint Scheduling Order decidedly is the Agency's responsibility. 4. 

### Analogy to the InherentAuthority o(US. 

### Federal Courts. Finally, the ALI

### referenced and relied on several legal treatises andscholarly works that discuss the inherent power offederal district courts exercising authority pursuant to Article III 

### ofthe United States Constitution. Analogies to the powers ofArticle III 

### courts, however, must be tempered by the fact that the Department ofTransportation's Office ofHearings is not a federal court exercising Article III 

### powers. The Office ofHearings' power to impose sanctions is expressly constrained by the

16 55 

### Fed. Reg. 27548, 27551 

### (Jul. 3, 1990). 6

### Administrative Procedure Act and the Agency's published procedural regulations. 5 U.S.C. §§ 

### 556(c)(ll), 558(b) (2012). Specifically, § 

### 556(c)(ll) empowers ALJs to take "actions authorized by agency rule consistent with this subchapter." As the United States Court of Appeals for the District of Colwnbia Circuit recently explained, ALJs do not have all the powers vested in federal courts, and agencies are not required to delegate full decisional authority to them. 17 

### Raymond J 

### Lucia Companies, Inc. v. Sec. & 

### Exch. Comm'n, 832 F.3d 277, 281-282, 288-289, 2016 WL 4191191, at *2, *6 (D.C. Cir. 2016). As pertains to the present matter, neither the Department ofTransportation northe FAAdelegated full sanctions authority to the ALJ, and the expressly limited sanctions authority found inAgency regulation 

### § 13.205(b) cannot be overridden or expandedby analogies to the inherent powers ofa federal district court exercisingpowerunderArticle III. Thus, none ofthe above authorities cited in the AU's sanctions Order, singly or in tandem, authorize the imposition ofsanctions for conduct within the scope ofthe Agency's management ofthe investigative stage of a matter and prior to the Request for Hearing or entry ofeither a Discovery orJoint Scheduling Order. D. Agency Regulations May Support the Imposition ofAnAppropriate Sanction For Pre-discovery Action orInaction that Materially Impacts the Adjudication. 

### Having determined that neither Agency regulations nor the four other sources relied on by the ALJ authorize her sanctions decisioninthis matter, itis importantto analyze one remainingbasis for the sanctions Order not articulated or relied on by the ALJ. As noted above, Sections 13.217(f) and 13.220(n) permit the ALJ to impose sanctions for failure to comply with a discovery orajoint schedule order. In this matter, the ALJ directed that the FAA respond to BFC's April 20, 2015, discovery requests by September 30, 2015. (Amended Scheduling Order, dated Sept. 1, 2015, at 5,**~4.)** 

### The FAA complied byresponding on September 15, 2015. (Motion for Sanctions, Exh. F.) The inquiry should not end there, however. Section 13.217 (f) should not be read so narrowly as to

17 5U.S.C. § 556(c)(ll). 7

### preclude the imposition of sanctions when the Agency is unable to respond fully to discovery requests or other aspects ofdiscovery covered by a scheduling order due to Agency actions that occurred priorto the issuance ofthose orders. Actions ofan Agency Inspector or Attorney, during the Agency's internal investigation prior to Respondent's filing a Request for Hearing, theoretically could adversely impact the nature or scope ofthe FAA's responses to discovery requests in subsequent stages ofthe litigation within the 

### ALI's supervision. An

### ALImay impose an appropriate sanctionto the extentthat the FAA's responses were incomplete, misleading, or omitted information due to the actions of Agency personnel, even where the actions occurred prior to the filing of the Request for Hearing. However, before imposing such sanctions the ALI must analyze the discovery requests and responses and develop the record necessary to determine why the actions or inaction occurred and whether andto what extentthe alleged actions or inactions materially impacted orprejudiced the Respondent's right to a fair and impartial determination of the alleged regulatory noncompliance. As discussed below, in the context ofthe issues identified inthe Order, the ALI did not develop the requisite recordto supportthe imposition ofsanctions inthis case. I. Non-Retention of Documents. 

### First, the Enforcement Investigative Report (EIR) contained only two documents written by the witness, Dr. Long -his October 3 and October 12 emails to the Inspector. 18 

### The EIRdid not include:

• Dr. Long's October 1, 2012 statement;
• The Inspector's email messages asking for additional information or encouraging witness cooperation; or • Some ofDr. Long's responses to the Inspector's email messages, including Dr. Long's October 5, 2012 responses. 19

18 The EIRwas attachedto the Administrator's Initial Disclosures, served on Aprill7, 2015. See Motion for Sanctions, ExhibitC.
19 Compare Motion for Sanctions, ExhibitC, to Exhibits J and K (Dr. Long's responses to subpoenarider requests.). These documents clearlywould have beenresponsive to requests 18 ("[a]ll correspondence and e-mails sent to or sent from Dr. AlanLongrelatedtothe subjectflight") and 25 ("[a]ll documents generatedby"the Inspector "relatedto this case") included inRespondent's Requests for Production of Documents. (Motionfor Sanctions, ExhibitE.) 8Those documents also were not included in the FAA's September 15, 2015, responses to the discovery requesf 0 because they apparently were not retained by the Inspector and the FAA attorney apparently was not aware ofthe documents or their apparent destruction when he responded to the discovery request.21 Nevertheless, in response to a subpoena, Dr. Long providedthe documents to the Respondent.22 Inthatregard, the ALJ noted: Obviously certain e-mails exchanged between Inspector Rushton and Dr. Long, although destroyed by Inspector Rushton, have beenrecovered from Dr. Long via subpoena. Ifthe recovery ofthis datawas the onlyproblem, striking the pleadings would notbe warranted because the evidence has beenfound.23 Thus, it is true the FAA should have retained the documents in anticipation oflitigation and was not able to provide full responses to discovery requests. However, it appears the material theFAA wasnot able to provide was providedto the RespondentthroughDr. Long. Second, the ALJ held that "it must be assumed on behalf of the Respondent

- the disadvantaged party
- that Inspector Rushton may have selectively withheld other relevant investigative information from the EIR as well, which is still unknown or which may never be recovered." (Order at 29.) There is no basis in this record to support this assumption and it cannotprovide abasis for the sanction ordered here. (Order at 38.) In sum, the record does not establish that the Inspector's failure to retain the documents had a material prejudicial impact on Respondent's ability to answer and defend whether it operated flights as passenger-carrying flights for compensation or hire in violation ofFAA regulations. Only a hearing affords the ALJ the opportunity to determine how the Inspector's failure to retain documents impacts the credibility ofthe Inspector, Dr. Long or any other witness as to

20 See Response to Respondent's DiscoveryRequests, dated September 15, 2015, (Motion for Sanctions, Exhibits Fand G.)

21 The circumstances ofwhatthe attorney knew (or should have known) and bywhen also warrants a more complete record.
22 See Response in Oppositionto Motion for Sanction, Exh. A(Declaration ofYancey Rushton).

23 Orderat 38. 9Respondent's alleged non-compliant flights orjustifies striking the pleadings as to such noncompliance.

2. Pollution o(aKey Witness. The FAA's response to interrogatories included the following description ofDr. Long's anticipatedtestimony: Most notably, Dr. Alan Long may testifY about scheduling flights with Respondent, including the subject flight ofthis case. Dr. Long may testifY that the instant flight was scheduled as a purely business/charter flight, and that there was no discussion of a "demonstration" flight. The ALI found that the Inspector had polluted the perceptions of Dr. Long by repeatedly attacking and criticizing the Respondent and sending Dr. Long materials about past crashes involving aircraft unlawfully carrying passengers for compensation orhire. She wrote that "by October 3, 2012, Dr. Long [the witness and passenger for whom the flight was arranged] had conversed with Inspector Rushton several times, had read materials Inspector Rushton had given to him, and was echoing Inspector Rushton's condemnation ofRespondent." (Order at 15). In that email message, Dr. Long wrote, "I have zero tolerance for what's happening at BFC." (Motion for Sanctions, Exh. J, at LONG000451, (Oct. 3, 2012 3:37 PM.) That one email message was the only evidenceto which the ALI referredto substantiateherfmding that the Inspector's conduct "destroyed Dr. Long's potential as an evidentiary witness." (Order at 19) and that "[w]itness [p]olluting [d]id [occur." (Order, at 18.) In the absence ofa hearing, the evidence inthe currentrecord simply does not support a finding of"pollution." First, as the record makes clear, differences in the statements are explainedby otherfactors less nefarious than "pollution" by the Inspector. For example, during his first conversation with Inspector Rushton in September 2012 and inhis October 1, 2012 statement, Dr. Long noted he had talked months earlierto Respondent's Steven Pickett about buying ajet.24 Yet, neither of Dr. Long's October 3, 5, or 12, 2012 emails note that he had spoken months earlier to Respondent (and others) about the possibility of purchasing a CJ25 It may well be that

24 Motion for Sanctions, Exh. C, Record ofConversationwithDr. Long dated Sept. 21, 2012.)
25 (Motion for Sanctions, Exh. J,at LONG000449 (statementdated Oct. 3, 2012), atLONG000461 and LONG000462(emai1 from AlanLongto YanceyRushton, dated Oct. 5, 2012 2:50PM and2:56PM); at LONG000473-000475 (email from AlanLongto YanceyRushton, dated Oct. 12,2012 6:04pm). 10

### Dr. Long's earlier oral and written statements reasonably triggered the Inspector's early concern as to whether Dr. Long was willing to fully cooperate and be fully truthful in the FAA's investigation, thereby requiring the Inspector to implore Dr. Long to understand the significant aviation safety risks resulting from private pilots carrying passengers for compensation or hire. Or, it may be Dr. Long's later statements simply resulted from the fact that such statements/email messages were in response to particular questions asked by the Inspector, for the most part, seeking additional information about payments for the flight, and the Inspector not asking inhis October 3, 5, or 11 email messages (supplied in response to the subpoena) whether Dr. Long had 

### at any time in the past considered purchasing a CJ. 

### (E.g., Motion for Sanctions, Exh. J, at LONG000445 8:21 AM (email from Rushton to Long, dated Oct. 3, 2012, 8:21 am), at LONG000460 (email from Rushtonto Long, dated Oct. 5, 2:16pm); at LONG000461 (email from Rushtonto Long, dated Oct. 5, 2012 2:15PM); at LONG000463 (email from Rushton to Long, dated Oct. 11,2012 3:08PM.) Second, the Inspector's several email messages to Dr. Long responsibly sought basic factual information that Dr. Long did not cover in his October 1, 2012, statement. Dr. Long's responsive emails actually provided necessary factual details about bills that he received, whether he had paid these bills and whether before the flight he had heard ofthe entity (Team Financial) that eventually sent him a bill.26 

### These necessary factual details surely are not matters ofperception and therefore would not be subject to "pollution" or any other form of adulteration due to any emotional response by Dr. Long to the Inspector's "negative" comments.

26 I.e., Motion for Sanctions, Exh. J, LONG000461 (Long to Rushton, Oct. 5, 2012 2:50 pm), LONG000462(0ct. 5, 2012 at 2:56pm). For example, he explained in an emailed statement dated Oct. 3, 2012, that"[a]fter
... Steven Picketttold me itwould be considered a demo flight, I received emailed invoices from both pilots Shawn Flowers and JustinLollar. I also received a paper invoice through the mail for $1950 from Team Financial for the use ofthe CJ." (Motion for Sanctions, Exh. J., LONG000449 (Oct. 3, 2012, statement by Dr. Long.) Dr. Long attached copies ofemails from the pilots and copies ofbills for their services. (I.e., Motion for Sanctions, Exh. J,LONG000446 (forwarded email from Justin Lollarto Alan Long, dated Sept. 23, 2012, 2:20:53 PM, requesting Long send $400 pilot fee to his home address)); at LONG000448 (invoice for $450, "pilot day rate" from ShawnFlowers.) 11

### Third, a review of the EIR and the emails supplied by Dr. Long suggest that Dr. Long's understanding ofthe essential fact- that the September 18, 2012 flight was a business charter flight and not a demonstration flight

- did not change between his September, 2012 first interviewwith the Inspector and his October 12, 2012, written statement.27



### In sum, the ALJ's finding of witness "pollution," based upon her assumption that the Inspector's remarks musthave destroyed Dr. Long's value as a credible witness, simply is not supported by the current record and only a hearing can develop testimony necessary for the ALJ to assess the veracity and weightto be affordedto any suchtestimony. 3. Promise ofConfidentiality in Exchange for Helping the FAA. Based upon the email messages supplied by Dr. Long in response to a subpoena, the ALJ found the Inspector had promised confidentiality to Dr. Long. The ALJ wrote "the email records preserved by Dr. Long andproducedbythe respondent in support ofsanctions also demonstratedthat Inspector Rushton promised Dr. Long certain confidentiality protections if he helped the FAA, (Order at 20.) 

### "

Under my interpretation ofthe potential scope of Sections 13.217(f) and 13.220(n) set forth herein, ifthe anticipated testimony, as described bythe FAA in its response to discovery, was tainted by a promise ofconfidentiality, then a sanction might be appropriate. However, the currentrecord does not support finding such apromise ofconfidentiality. The inspector's email to Dr. Long provided: "Even ifyou signed something, I give you my word that you will be left out ofthis
... I knowyou don'twant to be involved and I will keep you out ofthis but I need your help. 28 

### This message is equally read as having perfectly innocuous and reasonable meanings in an investigatory context that the Inspector was reassuring the witness that enforcement action would not be taken against him for arranging

27 Compare Motion for Sanctions, Exh.C, (EIR- Record ofConversation with Dr. Long dated Sept. 21, 2012); Exh. J, atLONG000442 (Statement dated Oct. I, 2012) andExh. J, at LONG000474 (Statement dated Oct. I2, 2012.)
28 Orderat 20; Motionfor Sanctions, Exh. J, at LONG000445 (Email to AlanLongfrom Yancey Rushton dated Oct. 3, 2012, 8:21 am.) 12for this flight, as the Inspector wrote in his declaration,29 or an attempt to reassure the witness that he would only have to spend limited time away from his practice to participate in the future inthe eventthe civilpenalty action actuallywentto hearing. Accordingly, the record does not support the ALI's finding as to confidentiality, and whether the Inspector promised confidentiality and, ifso, did such promise have a material impact on the veracity ofDr. Long's statement can onlybe determined following ahearing. 

### 4. Interference with Respondent's Right to Discovery Further, the ALI held the Inspector interfered with Respondent's ability to gather relevant information in two ways. First, "the email records preservedby Dr. Long and producedby the Respondent in support ofsanctions also demonstrated that Inspector Rushton
.. . instructed Dr. Long not to talk to, or share information with, the Respondent" and that the Inspector persuaded Dr. Long not to speak with Respondent. (Order at 20, 22.) However, it simply cannot be determined from the record whether Dr. Long would have been inclined to talk to the Respondent in response to the Inspector's inquiries had the Inspector not urged him to "keep all this to yourself." (Motion for Sanctions, Exh. 

### J, at LONG000458.) Equally as important, however, the email messages establish that after Respondent contacted Dr. Long, the Inspector advised him, to "do whateveryou need or feel like doing" and "Do what you want and I don'tcare." (Motion for Sanctions, Exh. J, at LONG000466 (email from Rushton to Long Oct. 12, 2012, 10:57 PM.) Second, the ALI also noted, "Neither Inspector Rushton nor Dr. Long kept a telephone record log regarding Inspector Rushton's voicemail message. 

### It must bepresumed, on behalf of the Respondent, that the voicemail message contained similar condemnations ofthe Respondent and warnings about communicating with the Respondent." (Emphasis added.) (Order at 22, n.SO.) There is no basis for this presumption, and the ALI's finding that the Inspector orally "warned" Dr. Long is unsubstantiated.

29 Response in Oppositionto Motion for Sanctions, GovernmentExh. A [RushtonDeclaration],**~** 6 13In 

### sum, the current record does not support the finding as to interference, and the issue of whether the Respondent was prevented or impeded from gathering relevant information can only be determined following ahearing. 5. Contact between Complainant'sAttorneyandaSubpoenaed Witness. Finally, the ALI also imposed sanctions based upon her finding the FAA attorney had contacted Dr. Long, in connection with a subpoena issued at the Respondent's request30 

### The ALI found that this conduct deserved a sanctionbecause it obstructed Respondent's right to obtain evidence. This finding is unsupported by the record for three reasons. First, the ALI's Order acknowledged that the FAA attorney contacted the witness to determine whether grounds existed for a motion to quash the subpoena, and thatthe FAA attorney made it clear in his communications that the witness was required to comply with the subpoena and release the requested documents unless a motion for relief from the subpoena was filed. 31 

### There is nothing inherently improper

-- much less sanctionable

-- in the fact ofsuch communications occurring between the FAA attorney (or any attorney) and the third-party witness who has received a subpoena. Indeed, Section 13.228(b) permits the filing of a motion to quash or modify a subpoena, listing various grounds for quashing a subpoena. By so providing, the Section implicitly contemplates contact between the Complainant's (or any party's attorney) and a subpoena recipient, seeking to inquire whether a factual basis exists for a motion to quash. One acceptable way for Complainant's or any party's attorney to know whether grounds exist to file a motion to quash the subpoena is to discuss the same with the subpoena's recipient

- which apparently is all the FAA attorney did. Indeed, an attorney who does not make a "reasonable inquiry" could face sanctions under § 

### 13.207 ifit is later determined the attorney filed a frivolous motion to quash. 32 

### Ultimately, in this case a motion to quash the subpoena was notfiled and apparently the witness provided documents soughtthroughthe subpoena.33

30BFC servedthe subpoenaonDr. Long on October21,2015. (Motion for Sanctions, Exh. H.)
31 Orderat 30-31 (quoting various email messagesto Dr. Long).
32 Like Fed. R. Civ. P. 11, 14 C.F.R. § 13.207(b) provides that signatures on filed documents constitute a certification that a "reasonable inquiry" has beenmade.
33 Orderat30-31. 14

### Second, the ALI's ability to impose a sanction under § § 13.217 and 13.220 requires evidence that these actions had an impact on the party's compliance with a scheduling order, a discovery order or an orderto compel. No such connection has been established here34 

### Third, the scheduling orders in this case did notpreclude contact betweenthe attorney and Dr. Long or any otherthird-party witness, and as Complainant notes, the ALI did not find that the FAA attorney violated any specific provision ofthose orders.35 

### Hence, nothing in 

### the current record warrants a sanction under §§13.217(f) or 13.220(n) based on the actions ofthe FAA attorney. In sum, the current record does not support a sanction based on the FAA Attorney (or any attorney) contacting a witness to determine whether grounds existed for a motion to quash to subpoena, especially whenthe FAA attorney made clearto the witness that he was 

### requiredto comply with the subpoena and release the requested documents unless a motion for relief from the subpoenawas filed. D. Re-assignment ofthe Case to aNewALJ 

### The Complainant's Briefrequested "the Administrator direct that this matter be reassigned to another ALI because the ALI's June 3, 2016 Sanctions Order clearly indicates that the ALI has prejudged the credibility ofthe FAA's witnesses and reliability ofthe evidence without hearing testimony from the investigating ASI or Dr. Long or holding an evidentiary hearing."36 

### However, such relief is not specified in § 13.219 as a permissible basis for an interlocutory appeal from anALI's order.37 

### Moreover, applicable proceduralregulations provide that the ALI 

### sua sponte may disqualify herself if she deems it appropriate, or a party may file a well34 The original scheduling order had set a deadline ofJune 19, 2015, for the parties to "issue subpoenas and/or mutually arrange for depositions of witnesses and experts as may be necessary." (Original Scheduling Order, dated April 7, 2015, at 3,**~** 8.) The amended scheduling order in this case did not set a deadline for serving subpoenas.
35 Complainant's Briefin Support ofInterlocutoryAppeal ofRight, at 9; Orderpassim.
36 Complainant's Briefat 12.
37 See also 14 C.F.R. § 13.233G) (relatingto appeals from initial decisions). 15

### considered motion with the ALJ.38 

### Neither ofthese procedures has been exhausted and, thus, it is prematureto directthatthis matter be reassigned to another ALJ. E. FurtherProceedings and Internal Investigation 

### Some ofthe alleged conductunderlyingthe ALI's order, inparticular, the non-retention of documents, may warrant a sanction ofsome type depending on findings made on an appropriate record after ahearing. It

### is not enoughto respondto discovery inatimely fashion as articulated in a scheduling order; discoveryresponses mustbe complete and potential documentary evidence and witness testimony mustnotbe destroyed or misplaced, evenbeforethe formal initiation of the civil penalty enforcementprocess withtheAgency's issuance ofthe Notice ofProposed Civil Penalty. The record on this point and onwhetherthe value ofa witness was destroyedby interaction withthe investigatorneeds to befurther developed. Indeed, as recognizedby Complainant's Briefin Support oflnterlocutory Appeal ofRight: As an initial matter, Complainant emphasizes that by seeking this interlocutory appeal it is not suggesting that it condones alleged overzealous investigatory conduct by its investigative personnel or the failure to retain records related to a pending investigation in accordance with published guidance applicable to investigative personnel. Complainant's Brief at 6. Allegations of (I) 

### overzealous investigatory conduct by Agency investigative personnel, (2) failure to retain records related to a pending investigation in accordance with published guidance applicable to investigative personnel, and (3) improper contact between an attorney and potential witnesses are serious matters. Accordingly, at the request ofthe ChiefCounsel, I have instructed the Agency's Office ofAudit and Evaluation at the conclusion ofthis matter to conduct a thorough and prompt review ofboth the Inspector's and Counsel'shandling ofthis matter and to report to me the results ofsuch review. 39

38 14 C.F.R. §§ 13.205(c) and 13.218(£)(6). 39 Amongotherthings, the internalreview will assess whetherthe Inspectorfollowed the internal requirements ofF AA Order 2150.3B regarding the assembling ofevidence andtracking ofinformation during the investigation stage (see chapters 4, 8, and 9) and whethertherequirements ofthe Order are adequateto ensure necessary preservation ofdocuments and otherevidence in anticipation oflikely enforcementlitigation. 16III. CONCLUSION 

### Based upon the foregoing, the ALI's Order striking allegations from the Complaint and barring Complainant from introducing evidence at a hearing regarding those allegations is reversed and vacated as not supported by the preponderance of the reliable, probative and substantial evidence. The case is remanded to the ALI for further proceedings consistent with this Decision.40 

### Therequestthat the case be re-assigned to another ALJ is denied.

ADMINISTRATOR Federal Aviation Administration

40 This is an interlocutory decision. Itwillbecome appealable upon issuance ofthe final order inthis case. 17