UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: BIRMINGHAM FLIGHT CENTER 

FAA Order No. 2016-5 

FDMS No. FAA-2014-086i 

Served: December 22,2016 

ORDER PARTIALLY 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 Jet N525LP as a passenger-carrying flight 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 of the flight, the FAA Inspector: 

• Failed to retain documents; 

• "Polluted" a third-party witness by making statements critical ofBFC; 

• Promised confidentiality to that witness; and 

• Discouraged that witness from sharing information with BFC. 

The ALJ also found that the Complainant's attorney wrongfully attempted to discourage a 

witness from complying with a subpoena duces tecum served by BFC's counsel.3 

1 Generally, materials filed in the FAA Hearing Docket (except for materials 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 civil penalty decisions, along with indexes of the decisions, the rules of practice, 

and other information, are available on the Internet at the following address: 

www faa.gov/ about/ office_ org/headquarters _offices/ age/pol_ adjudication/ A GC4 00/Civi/_Pena/ty/. See 

14 C.F.R. § 13.210(e)(2). 

3 Order at 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 that the 

FAA decisionmaker vacate the Order and direct that this matter be reassigned to another ALJ. 

For the reasons set forth herein: 

• Complainant's interlocutory appeal is granted in part; 

• The Order is reversed and vacated, and the case IS remanded to the ALJ for further 

proceedings consistent with this Decision; and 

• Inasmuch as the question of whether the ALJ prejudged the credibility of the 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 of Review 

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 pursuant to 14 C.F.R. part 13, Subpart G. However, in order to determine whether the 

ALJ had sanction authority under 14 C.F.R. §§ 13.217 and 13.220, and whether any sanction was 

proportionate to the underlying conduct, it is appropriate to review the ALJ's factual findings to 

determine whether each finding of fact is supported by a preponderance of the reliable, probative 

and substantial evidence. 14 C.F.R. § 13.233(b)(l). 

II. Discussion 

A. ALJs Have Limited Authority to Impose Sanctions 

14 C.F.R. § 13.205(b) expressly circumscribes the ALJ's sanctions authority in two distinct ways 

- it limits the conduct for which sanctions may be imposed and the types of sanctions that may 

be imposed: 

(b) Limitations on the power of the administrative law judge. The administrative 

law judge shall not issue an order of contempt, award costs to any party, or impose 

4 The ALI may disqualifY herself if she deems it appropriate. 14 C.F.R. § 13.205(c). Also, Complainant 

may file a motion for disqualification with the ALI under 14 C.F.R. § 13.218(t)(6). 

2 
any sanction not specified in this subpart. If the administrative law judge imposes 

any sanction not specified in this subpart, a party may file an interlocutory appeal of 

right with the FAA decisionmaker pursuant to § l3 .219( c)( 4) [sic] of this subpart. This 

section does not preclude an administrative law judge from issuing an order that bars 

a person from a specific proceeding based on a finding of obstreperous or disruptive 

behavior in that specific proceeding. (emphasis added). 

The ALI referenced and relied on two regulatory provisions to impose sanctions: 

• § 13.217(f)- which authorizes sanctions for failure to comply with a joint schedule; and 

• § l3.220(n) - which authorizes sanctions for failure to comply with a discovery order or 

order to compel discovery. 5 

Under either provision, the sanctions may include: 

• Striking a portion of the party's pleadings; 

• Precluding the party's prehearing or discovery motions; 

• Precluding the admission of a portion of the party's evidence at the hearing; or 

• Precluding a portion of the testimony of the 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 the joint schedule (§ l3.217(f)) or a discovery order or an order to compel discovery (§ 

13.220(n)). Because no hearing was held on the conduct issues of concern to the ALI, she failed 

to make the requisite findings or determinations as to either: 

• Whether they were prohibited by, or bore any relationship to, the subsequently-issued 

joint scheduling or discovery orders; or 

• The circumstances that gave rise to such conduct; and 

• How the conduct prejudiced the ALI's ability to make fair and impartial finding of facts 

after a hearing. 

B. Most of Complainant's Actions or Inaction Occurred Prior to Entry of 

a Discovery or Joint Scheduling Order 

The ALJ' s Order primarily is based on the FAA Investigator's actions and inactions that 

allegedly occurred in 2012 and 20136

, before either the Respondent's November 26, 2014 

5 Orderat41. 14 C.F.R. §§ 13.217(f) and !3.220(n). 

3 
Request for Hearing or the 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 or the ALJ' s entry of scheduling and discovery orders. 

C. ALJ's Four Other Referenced Sources of Authority 

Nonetheless, the ALJ also justified her sanctions Order by referencing and relying on four 

disparate sources of authority, including: 

• FAA Order 2150.3B; "FAA Compliance and Enforcement Program;" 

• The American Bar Association's Model Rules of Professional Conduct; 

• Portions of the regulatory notice published in the Federal Register for Part 13;8 and 

• By analogy, the inherent authority of Federal courts under Article III of the United States 

Constitution. 

These sources are reviewed to determine whether, singly or in tandem, they provide appropriate 

support for the ALJ' s sanctions decision. 

I. FAA Order 2150.3B. FAA Order 2150.3B establishes procedures and requirements with 

regard to the actions of FAA investigators. Indeed, it evidences the Agency's commitment to 

6 These actions included multiple "condemnations" of Respondent 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 of the Order refer to emails from 

October 3 to October 12, "2016," with the citation to Exhibit J of the 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 of fact that are unsupported by the record. These "condemnations," in the view 

of the ALI, "polluted" the witness (Order at 18). 

Relying on the text of these messages, the ALI also found that the investigator encouraged Dr. Long not 

to cooperate with the Respondent, even after the investigator sent a Letter of Investigation that notified 

the Respondent of the 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. 

4 
securing and preserving evidence,9 securing reliable witness statements,10 and appropriately 

interviewing witnesses during the investigation. 11 It expressly requires FAA personnel "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 law by any party against the FAA, its officers, or its employees."13 

Thus, enforcement of the investigative processes and standards set forth in FAA Order 

2150.3B is a management duty of the 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 of a matter. Accordingly, FAA Order 2150.3B provides no basis 

for the ALJ' s sanction decision. 

2. ABA Model Rules o(Pro(essional Conduct. Similarly, for several reasons the ALJ cannot 

rely on the ABA Model Rules of Professional Conduct, Rules 3.4 and 3.8 (2014 ed.) as a 

source of her sanctions authority. 15 First, neither Rule 3.4 nor Rule 3.8 applies to the conduct 

of the Inspector in this case. The pertinent sections of Rule 3.4- Rule 3.4(a), (e) and (f)-

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

10 Id at page 4-15, -,r IO.c.(6). 

u !d. atpage4-14, -,r IO.c.(3). 

12 Id. at page 1-1, -,r2.b. 

13 !d. at page 1-1, -,r 2.c. Of course, the Agency expects and encourages ALJ s to refer for Agency review 

concerns about the conduct of any Agency employee. 

14 As set forth in Section II.E herein, the FAA exercised that management responsibility by the Agency's 

Chief Counsel asking for and my directing the Agency's Office of Audit and Evaluation to conduct a 

thorough and prompt interual review of both the Inspector's and Counsel's handling of this matter and to 

report to me the results of such 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 of the ABA's Model Rules. 

3. Part 13 Rules of Practice fOr FAA Civil Penalty Actions. 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 of referenced 

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 

which the FAA referred are those set forth in the proposed rules 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 of a respondent to petition a United States 

Court of Appeals for review of an Administrator's decision. Those enumerated protections 

simply do not expand the ALJ's regulatory proscribed sanctions authority beyond§ 13.217(f)) 

and § 13.220(n)) to include the ALI having general oversight of FAA Inspectors conducting 

investigations in the regular course of their duties. Oversight of FAA employees during an 

investigation prior to the Request for Hearing or issuance of a Discovery or Joint Scheduling 

Order decidedly is the Agency's responsibility. 

4. Analogy to the Inherent Authority o( US. Federal Courts. Finally, the ALI referenced and 

relied on several legal treatises and scholarly works that discuss the inherent power of federal 

district courts exercising authority pursuant to Article III of the United States Constitution. 

Analogies to the powers of Article III courts, however, must be tempered by the fact that the 

Department of Transportation's Office of Hearings is not a federal court exercising Article III 

powers. The Office of Hearings' 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 of Transportation nor the FAA delegated full sanctions 

authority to the ALJ, and the expressly limited sanctions authority found in Agency regulation 

§ 13.205(b) cannot be overridden or expanded by analogies to the inherent powers of a federal 

district court exercising power under Article III. 

Thus, none of the above authorities cited in the AU's sanctions Order, singly or in tandem, 

authorize the imposition of sanctions for conduct within the scope of the Agency's management 

of the investigative stage of a matter and prior to the Request for Hearing or entry of either a 

Discovery or Joint Scheduling Order. 

D. Agency Regulations May Support the Imposition of An Appropriate 

Sanction For Pre-discovery Action or Inaction that Materially 

Impacts the Adjudication. 

Having determined that neither Agency regulations nor the four other sources relied on by the 

ALJ authorize her sanctions decision in this matter, it is important to analyze one remaining basis 

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 or a joint 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 by responding 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 5 U.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 of discovery covered by a scheduling order due to Agency actions that 

occurred prior to the issuance of those orders. 

Actions of an 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 of the FAA's responses to discovery requests in subsequent stages of the litigation within 

the ALI's supervision. An ALI may impose an appropriate sanction to the extent that 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 and to what extent the alleged actions or inactions materially impacted or prejudiced 

the Respondent's right to a fair and impartial determination of the alleged regulatory noncompliance. As discussed below, in the context of the issues identified in the Order, the ALI did 

not develop the requisite record to support the imposition of sanctions in this 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 EIR did not include: 

• Dr. Long's October 1, 2012 statement; 

• The Inspector's email messages asking for additional information or encouraging witness 

cooperation; or 

• Some of Dr. Long's responses to the Inspector's email messages, including Dr. Long's 

October 5, 2012 responses. 19 

18 The EIR was attached to the Administrator's Initial Disclosures, served on Aprill7, 2015. See Motion 

for Sanctions, Exhibit C. 

19 Compare Motion for Sanctions, Exhibit C, to Exhibits J and K (Dr. Long's responses to subpoena rider 

requests.). These documents clearly would have been responsive to requests 18 ("[a]ll correspondence 

and e-mails sent to or sent from Dr. Alan Long related to the subject flight") and 25 ("[a]ll documents 

generated by" the Inspector "related to this case") included in Respondent's Requests for Production of 

Documents. (Motion for Sanctions, Exhibit E.) 

8 
Those documents also were not included in the FAA's September 15, 2015, responses to the 

discovery requesf0 because they apparently were not retained by the Inspector and the FAA 

attorney apparently was not aware of the documents or their apparent destruction when he 

responded to the discovery request.21 Nevertheless, in response to a subpoena, Dr. Long 

provided the documents to the Respondent. 22 In that regard, the ALJ noted: 

Obviously certain e-mails exchanged between Inspector Rushton and Dr. Long, although 

destroyed by Inspector Rushton, have been recovered from Dr. Long via subpoena. If the 

recovery of this data was the only problem, striking the pleadings would not be warranted 

because the evidence has been found. 23 

Thus, it is true the FAA should have retained the documents in anticipation of litigation and 

was not able to provide full responses to discovery requests. However, it appears the material 

the FAA was not able to provide was provided to the Respondent through Dr. 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 

cannot provide a basis 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 of FAA regulations. 

Only a hearing affords the ALJ the opportunity to determine how the Inspector's failure to 

retain documents impacts the credibility of the Inspector, Dr. Long or any other witness as to 

20 See Response to Respondent's Discovery Requests, dated September 15, 2015, (Motion for Sanctions, 

Exhibits F and G.) 

21 The circumstances of what the attorney knew (or should have known) and by when also warrants a 

more complete record. 

22 See Response in Opposition to Motion for Sanction, Exh. A (Declaration of Yancey Rushton). 

23 Order at 38. 

9 
Respondent's alleged non-compliant flights or justifies striking the pleadings as to such noncompliance. 

2. Pollution o(a Key Witness. The FAA's response to interrogatories included the following 

description of Dr. Long's anticipated testimony: 

Most notably, Dr. Alan Long may testifY about scheduling flights with Respondent, 

including the subject flight of this 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 or hire. 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 of Respondent." (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 evidence to which the ALI referred to substantiate her fmding 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 of a hearing, 

the evidence in the current record simply does not support a finding of "pollution." 

First, as the record makes clear, differences in the statements are explained by other factors less 

nefarious than "pollution" by the Inspector. For example, during his first conversation with 

Inspector Rushton in September 2012 and in his October 1, 2012 statement, Dr. Long noted he 

had talked months earlier to Respondent's Steven Pickett about buying a jet.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 of Conversation with Dr. Long dated Sept. 21, 2012.) 

25 (Motion for Sanctions, Exh. J,at LONG000449 (statement dated Oct. 3, 2012), at LONG000461 and 

LONG000462(emai1 from Alan Long to Yancey Rushton, dated Oct. 5, 2012 2:50PM and 2:56PM); at 

LONG000473-000475 (email from Alan Long to Yancey Rushton, 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 in his 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 Rushton to Long, dated Oct. 5, 2:16pm); 

at LONG000461 (email from Rushton to 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 of the entity (Team 

Financial) that eventually sent him a bill.26 These necessary factual details surely are not 

matters of perception 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 Pickett told 

me it would be considered a demo flight, I received emailed invoices from both pilots Shawn Flowers and 

Justin Lollar. I also received a paper invoice through the mail for $1950 from Team Financial for the use 

of the CJ." (Motion for Sanctions, Exh. J., LONG000449 (Oct. 3, 2012, statement by Dr. Long.) Dr. 

Long attached copies of emails from the pilots and copies of bills for their services. (I.e., Motion for 

Sanctions, Exh. J,LONG000446 (forwarded email from Justin Lollar to 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 Shawn Flowers.) 

11 
Third, a review of the EIR and the emails supplied by Dr. Long suggest that Dr. Long's 

understanding of the 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 

interview with 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 must have 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 weight to be afforded to any such testimony. 

3. Promise of Confidentiality 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 and produced by the respondent in support of sanctions also demonstrated that Inspector 

Rushton promised Dr. Long certain confidentiality protections if he helped the FAA, 

(Order at 20.) 

" 

Under my interpretation of the potential scope of Sections 13.217(f) and 13.220(n) set forth 

herein, if the anticipated testimony, as described by the FAA in its response to discovery, was 

tainted by a promise of confidentiality, then a sanction might be appropriate. However, the 

current record does not support finding such a promise of confidentiality. 

The inspector's email to Dr. Long provided: "Even if you signed something, I give you my 

word that you will be left out of this ... I know you don't want to be involved and I will keep 

you out of this 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 of Conversation with Dr. Long dated Sept. 21, 

2012); Exh. J, at LONG000442 (Statement dated Oct. I, 2012) and Exh. J, at LONG000474 (Statement 

dated Oct. I 2, 2012.) 

28 Order at 20; Motion for Sanctions, Exh. J, at LONG000445 (Email to Alan Long from Yancey Rushton 

dated Oct. 3, 2012, 8:21 am.) 

12 
for 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 in the event the civil penalty action actually went to hearing. 

Accordingly, the record does not support the ALI's finding as to confidentiality, and whether 

the Inspector promised confidentiality and, if so, did such promise have a material impact on 

the veracity of Dr. Long's statement can only be determined following a hearing. 

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 preserved by Dr. Long and produced by the Respondent in support of sanctions 

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 whatever you need or feel like doing" and "Do what you want and I don't care." (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 be presumed, on behalf of the 

Respondent, that the voicemail message contained similar condemnations of the 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 Opposition to Motion for Sanctions, Government Exh. A [Rushton Declaration], ~ 6 

13 
In 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 a hearing. 

5. Contact between Complainant's Attorney and a Subpoenaed 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 sanction because 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 that the 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 of such 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 if it is later determined the attorney 

filed a frivolous motion to quash. 32 Ultimately, in this case a motion to quash the subpoena 

was not filed and apparently the witness provided documents sought through the subpoena.33 

30 BFC served the subpoena on Dr. Long on October 21,2015. (Motion for Sanctions, Exh. H.) 

31 Order at 30-31 (quoting various email messages to 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 been made. 

33 Order at 30-31. 

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 order to compel. No such connection has been established here34 

Third, the scheduling orders in this case did not preclude contact between the attorney and Dr. 

Long or any other third-party witness, and as Complainant notes, the ALI did not find that the 

FAA attorney violated any specific provision of those orders. 35 Hence, nothing in the current 

record warrants a sanction under §§13.217(f) or 13.220(n) based on the actions of the 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 when the FAA attorney made clear to the witness that he was required to 

comply with the subpoena and release the requested documents unless a motion for relief 

from the subpoena was filed. 

D. Re-assignment of the Case to aNew ALJ 

The Complainant's Brief requested "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 of the FAA's witnesses and reliability of the 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 an ALI's order.37 Moreover, applicable procedural regulations 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 of June 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 Brief in Support of Interlocutory Appeal of Right, at 9; Order passim. 

36 Complainant's Brief at 12. 

37 See also 14 C.F.R. § 13.233G) (relating to appeals from initial decisions). 

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considered motion with the ALJ.38 Neither of these procedures has been exhausted and, thus, it 

is premature to direct that this matter be reassigned to another ALJ. 

E. Further Proceedings and Internal Investigation 

Some of the alleged conduct underlying the ALI's order, in particular, the non-retention of 

documents, may warrant a sanction of some type depending on findings made on an appropriate 

record after a hearing. It is not enough to respond to discovery in a timely fashion as articulated 

in a scheduling order; discovery responses must be complete and potential documentary evidence 

and witness testimony must not be destroyed or misplaced, even before the formal initiation of 

the civil penalty enforcement process with the Agency's issuance of the Notice of Proposed Civil 

Penalty. The record on this point and on whether the value of a witness was destroyed by 

interaction with the investigator needs to be further developed. 

Indeed, as recognized by Complainant's Brief in Support oflnterlocutory Appeal of Right: 

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 of the Chief Counsel, I have instructed the Agency's Office of Audit and Evaluation at 

the conclusion of this matter to conduct a thorough and prompt review of both the Inspector's 

and Counsel's handling of this matter and to report to me the results of such review. 39 

38 14 C.F.R. §§ 13.205(c) and 13.218(£)(6). 

39 Among other things, the internal review will assess whether the Inspector followed the internal 

requirements ofF AA Order 2150.3B regarding the assembling of evidence and tracking of information 

during the investigation stage (see chapters 4, 8, and 9) and whether the requirements of the Order are 

adequate to ensure necessary preservation of documents and other evidence in anticipation of likely 

enforcement litigation. 

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III. 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 The request that the case be re-assigned to another ALJ is denied. 

ADMINISTRATOR 

Federal Aviation Administration 

40 This is an interlocutory decision. It will become appealable upon issuance of the final order in this case. 

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