SILVERBERG 

GOLDMAN& 

B IKO FF, L.L.P. 

ATTORNEYS AT lAW 

VL4FEDEX 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building 

Suite 2Wl000 

Washington, D.C. 20591 

GEORGF.TOWN PLACE • Smnl20 • 1101 30TI-r STREET, NW • \'i;T ASHI)JGTON, D.C. ~0007 

VOICE (?0?) 944-3300 • fACSIMILE (202) 944-3306 

March 25,2014 

RECEIVED 

MAR 2 6 2014 

HEARING DOCKET 

(Attention: Hearing Docket Clerk, AGC-430) 

Re: In the Matter of Airborne Maintenance and Engineering Services 

Docket: FAA-2013-0291 

FAA Case No.: 2011S0290032 

Dear Sir or Madam: 

Enclosed for filing in tbe above-referenced case please fmd an original and one copy of 

Respondent's Opposition to Complainant's Motion to Compel Production and Reply to 

Complainant's Opposition to Respondent's Motion to Compel. 

Also enclosed is an additional copy of the document and a pre-addressed, postage paid 

envelope. Please date-stamp tbe additional copy and return it to our office in the enclosed 

envelope. 

Thank you for your assistance. Please call me at the telephone number listed above if 

you have any questions regarding this matter. 

Enclosures 

Very truly yours, 

SILVERBERG, GOLDMAN & BIKOFF, LLP 

Attorneys for 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES 
BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

RECEIVED 

HEARING DOCKET 

In the matter of Docket No. F AA-2013-0291 

FAA Case No. 2011S0290032 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES 

Respondent 

Administrative Law Judge 

J.E. Sullivan 

RESPONDENT'S OPPOSITION TO 

COMPLAINANT'S MOTION TO COMPEL PRODUCTION 

AND REPLY TO COMPLAINANT'S 

OPPOSITION TO RESPONDENT'S MOTION TO COMPEL 

On March 14, 2014, Complainant, Federal Aviation Administration, filed a motion to 

compel Respondent, Airborne Maintenance and Engineering Services, to produce responses to 

Complainant's interrogatory numbers 2 and 12. Respondent hereby urges the Complainant's 

motion be denied. Complainant also filed on the same date an opposition to Respondent's 

Motion to Compel and Respondent hereby replies to the Complainant's Opposition. As the 

issues raised in the Complainant's Motion to Compel and Opposition to Respondent's Motion to 

Compel are intertwined, they are addressed accordingly throughout this pleading. 

I. The first argument presented by Complainant in its Motion to Compel is that 

Respondent cannot refuse to answer the FAA's discovery request "because it does not like the 

FAA's discovery responses." Motion to Compel at 2-3. This was a strange argument for the 

Complainant to make in its March 14, 2014 Motion to Compel since it did not make any 

response to Respondent's discovery requests until ten days later on March 24,2014. This is full 
14 days after Complainant's responses were originally due to be served on Respondent on March 

10,2014. 

Moving beyond the issue of the FAA's late response, Complainant's Interrogatory 

number 2 states: 

If you assert that the inspector's statements in this matter (inclusive of records of 

conversation, e-mails, memoranda, or other documents), as contained in the EIR, 

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

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

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

The Respondent's answer to this interrogatory was straightforward. Respondent stated that 

many portions of the Inspector's statement consisting of Section B of the FAA -compiled 

Enforcement Investigation Report ("EIR") were redacted in the version of the document 

provided when the FAA first made it available to Respondent. Respondent indicated that when 

the document in its entirety is produced, a response would be forthcoming. See Respondent's 

Responses to FAA's First Discovery Requests at 2 (attached as Exhibit B to Complainant's 

Motion to Compel). The problem is that Complainant has refused to produce the unredacted 

version of the document. To address Complainant's refusal to produce an uiJredacted version of 

the document, Respondent, in its pending Motion to Compel, dated March 10,2014, has 

requested that the document be reviewed in camera by Your Honor to determine if the redacted . 

material is privileged as claimed by Complainant. Respondent has noted that the privileges 

asserted by Complainant are limited in scope and can be overridden when a party questions the 

decisionmaking process, as the Respondent has in this matter. See Respondent's Motion to 

Compel at4. 

Apart from the need for Your Honor to sort out the issue of the privilege to be accorded 

Section B of the EIR, (Exhibit 4 to Respondent's Motion to Compel) unless all of the inspector's 

2 
statements are produced to Respondent for review and subsequent comment, Respondent will not 

be in a position to respond to Complainant's request quoted above. This is significant because if 

the Inspector were to later make a factual statement during a deposition or at hearing that was 

based on a redacted statement in the EIR, Respondent will have been deprived of the opportunity 

guaranteed by Rule 26 of the Federal Rules of Civil Procedure to obtain not only obviously 

relevant information necessary to prepare for these oral examinations, but information that could 

lead to the discovery of admissible evidence. 

The redaction issue has special significance in this case. Respondent is very troubled by 

actions of the investigating Inspector that show a distinct bias in this matter and Respondent is 

absolutely entitled to explore this issue on the record as it clearly goes to the creditability of the 

Inspector and the veracity of his written statements on which the FAA relied to bring this 

enforcement action. For example, in Section B, page 14 of the EIR the.entire section titled 

"Attitude of the Violator" has been redacted. This is a crucial portion of the document that could 

well display the Inspector's bias in this matter against the Respondent. Why otherwise would 

counsel for Complainant be working so hard to shield the information from Respondent? 

Respondent is a well regarded major overhaul center performing aircraft maintenance and repairs 

for 22 different air carriers (both foreign and domestic). It is in good standing with the FAA 

with all but the investigating Inspector. Even though Respondent was advised that the Inspector 

sought to have Respondent's own Principal Maintenance Inspector ("PMI") take action against 

Respondent based on performance of the maintenance at issue in this case, no such action was 

taken. Respondent must be given the opportunity to explore whether the Inspector's focus on the 

actions of the Respondent are properly grounded in fact or, as is likely, the product of bias or 

3 
prejudice and to do so on the basis of his writings and an unredacted version of the document is 

necessary to do so. 

Complainant argues that Respondent must answer Interrogatory number 2 even if an 

unredacted version ofthe document is not made available. See Complainant's Motion to Compel 

at 2-3. While it may be the general rule that the obligation of the parties to respond to discovery 

requests are said to be independent, in this case Respondent has been specifically asked by 

Complainant to respond to the Inspector's statements -- statements that are being withheld. 1 It is 

the Complainant that has linked these matters by demanding Respondent state where the 

statements of the Inspector contain inaccuracies, falsehoods, mischaracterizations, or other 

errors. Respondent can only do so ifthe statements are first produced in their entirety. 

Finally, on this point, Respondent is entitled to be informed of the full context ofthe 

Inspector's views and findings prior to commenting upon them. The redactions appear in several 

paragraphs of Section B of the EIR that purport to state the facts (that Respondent contests) on 

which the FAA is relying to support its allegations. Based on where some of the redacted 

statements appear in a paragraph or other portion of Section B, there is reason to believe that the 

redacted sentences and paragraphs may also contain allegedly factual statements and Respondent 

should be able to review them prior to cataloguing all of the errors and misstatements in the 

Inspector's report. 

II. In its Opposition to the Respondent's Motion to Compel the position of 

Complainant is that the entire Section B of the EIR is subject to the attorney-client privilege 

1 Rule 26( d) authorizes the tribunal to order the Complainant make its disclosures prior to the 

other party responding when it is "in the interest of justice." The Committee Notes make clear 

that Courts will and do delay discovery where it is dictated by special considerations and/or 

compelling reasons, such as those present in this case. 

4 
because it was produced at the request of and for the benefit of agency counsel. See 

Complainant's Response in Opposition to Respondent's Motion to Compel at 8. Complainant 

doth protest too much. If Complainant's argument was correct, then all of Section B would be 

privileged and beyond the reach of discovery. But the document was produced, less certain 

redactions. While Respondent rejects the argument that all of Section B is privileged, by 

producing the document Complainant has waived whatever, if any, attorney-client privilege 

attaches to the document and now has no basis to assert it with respect to any factual statements 

that have been redacted. Respondent requests that Your Honor conduct an in camera inspection 

of the document to determine whether redacted text must be produced, if the FAA will not 

produce the document in its entirety, and provide Respondent the opportunity to comment upon 

Section B as a whole as demanded by Complainant in its interrogatory number 2. 

Also in Complainant's Opposition it is taking the position that the redacted portions are 

covered by the deliberative process privilege. Id. Respondent has already cited the case that 

allows for overriding this privilege when bias is asserted. See in reSealed Case, 121 F.3d 729, 

738 (D.C. Cir. 1997) (citing other cases and articles on same point). Complainant has not 

rebutted this case but only makes the argument that a respondent need only assert a claim of bias 

in order to overcome the deliberative process privilege. First, mere assertion of bias would not 

be enough to overcome the privilege. But here, Respondent propounded discovery citing 

specific incidents displaying Inspector bias and intimidation and would, if answered, produce 

information that could lead to admissible evidence. These prior incidents are disturbing and are 

atypical of the attributes one usually finds when dealing with FAA inspectors. It is the very 

unique and unfortunate history of the Inspector's interactions with Respondent and Respondent's 

air carrier customer that provide the foundation for claims of bias. 

5 
Complainant nonetheless argues that the Inspector's negative views of Respondent are 

the natural outgrowth of his investigation and his conclusion regarding the quality of the work 

performed by Respondent and, Complainant argues, if that is all it takes to allege bias, then every 

enforcement proceeding can be subject to similar "harassing" discovery. Opposition at4-5. 

What Complainant has not grasped is the extent to which this Inspector acted beyond the 

boundaries of established norms. Respondent's officials have dealt with scores of FAA 

inspectors over the years and without exaggeration, they have never witnessed the type of bias 

and intimidation they have observed in this matter. In short, permitting discovery ofbias in this 

case is fully justified and will not open up the FAA to similar discovery demands, unless of 

course, it is justified. 

Another argument asserted by Complainant in its Opposition to Respondent's Motion to 

Compel, but not one to be taken seriously, is that if Respondent can explore the inspector's 

credibility, then the FAA will seek to present evidence of "numerous maintenance failures by 

· AMES." Opposition at 5. As admitted by Complainant, the credibility of a witness is always in 

issue. See Opposition at 3. However, even if it were true that AMES has committed "numerous 

maintenance failures" in the past, which it is not, Complainant cannot show that such failures 

relate in any way to the allegations in this case. In fact, the FAA has not levied even a single 

civil penalty upon AMES since its inception in 2009 based on a finding of a violation of the 

Federal Aviation Regulations and counsel for Complainant should be cautioned not to be so 

reckless as to suggest or imply otherwise.2 Complainant's threat that it will explore, through 

discovery, the unrelated maintenance performed by AMES if the Judge were to permit 

2 Counsel for the FAA could easily have looked up the civil penalty history of AMES before 

committing the words "numerous maintenance failures" to writing. 

6 
Respondent to inquire as to the bias of the Inspector is just that -- a threat -- and presumes (quite 

incorrectly) that the presiding law judge would not be in a position to regulate the conduct of the 

parties during the discovery phase ofthe litigation.3 

But even if the FAA had previously found a maintenance violation on the part of AMES, 

such prior infraction cannot prove the FAA's allegations in this matter. The FAA's allegations 

in this matter involve three discrete maintenance operations undertaken by AMES for one 

customer and not maintenance conducted for others. Any attempt by FAA to enlarge discovery 

on this basis would be resisted as a matter of principle and could hardly be expected to succeed 

even under the liberal rules of discovery because su.ch discovery would not lead to relevant 

information, much less lead to other admissible evidence concerning the alleged violations. 

III. In Complainant's Motion to Compel it objects to Respondent's reply to 

Interrogatory number 12 that states as follows: 

Describe in detail the physical condition of the landing gear and flying door 

assemblies at issue in this matter, including but not limited to the status of the 

following components: bushings, shims, doors, door attach fittings, flap track 

fairing, flap fairing, door attach fitting covers, hinges, hinge pins, wheel well 

fairings, hinge washers, cotter pins, anti-skid wiring conduits, hydraulic lines, 

trunions, and any other mounting hardware. 

The Respondent noted in its response that the interrogatory was not clear because it did not 

specify the relevant date by which to guide its answer. Respondent also noted that as of the date 

AMES completed the landing gear changes, the condition of the landing gear and flying door 

assemblies were serviceable and in airworthy condition. See Respondent's Reponses to FAA's 

3 Complainant in its Opposition at page 5 refers to the fact that the customer of AMES, an 

affiliated air carrier, Capital Cargo, considered the work of AMES to be oflow quality. But that 

unsupported statement is contradicted by the e-mail from Capital Cargo to AMES praising its 

work as shown in Exhibit 1. 

7 
First Discovery Requests at 7 (attached as Exhibit B to Complainant's Motion to Compel). 

Complainant now claims that, even though it admits the discovery request lacked any specific 

point in time, the request "covered the condition of the components at all times material to this 

litigation (that being August 2009 through May 2010)." Motion to Compel at 4. Of course, 

AMES is not the operator of the aircraft and would have no basis to respond to this sweeping 

FAA request a:nd would have objected on that basis had Complainant actually specified such a 

time period in its interrogatory. 

What Respondent pointed out to counsel for Complainant in the March 13, 2014 e-mail 

(Exhibit C to Motion to Compel) is that the Complaint only alleges in paragraph 4 of the FAA 

Complaint that in March 2010 AMES replaced the MLG on N287SC; in August 2009, AMES 

replaced the MLG on N899AA; and in October 2009 AMES replaced the MLG on N898AA, in 

each case improperly reinstalling and rigging the landing gear doors. Therefore, contrary to the 

position of Complainant that the relevant point in time to measure compliance is May 2010, the 

condition of the components at that time does not align with the FAA's allegations in the 

Complaint that AMES breached the regulations when it completed its gear change activities. 

Therefore, the AMES response to interrogatory number 12 was appropriate and complete based 

upon the FAA's allegations in the Complaint. 

The burden is on the FAA to prove that on the dates the three aircraft were returned to 

service after the gear changes (i.e., the dates as set forth in the complaint) that in doing so AMES 

had failed to use the proper methods to restore the aircraft to their original or properly altered 

condition thereby violating the FAR's. This is the task the FAA set out for itself and it must be 

in a position to prove on the basis of a preponderance of reliable, probative, and substantial 

evidence that on the dates AMES completed its work that the aircraft were not in their original or 

8 
properly altered condition due to the actions of AMES·-- and not as the aircraft may have 

appeared on dates as many as nine months later. If the FAA cannot make such a showing 

because it lacks the evidence to support its allegations, then the Complaint should be dismissed. 

If the FAA seeks to elicit a response from AMES regarding the condition of the aircraft 

on May 25,2010, the FAA could have made its interrogatory clear and unambiguous, but it did 

not do so because it specified no date to be used when asking AMES to describe the condition of 

the aircraft. To be sure, AMES disputes the FAA's false statements and exaggerated 

descriptions of the condition of the landing gear and flying door assemblies on May 2010 and the 

FAA's position that the alleged substandard condition was the direct consequence of any misrigging of the flying doors by AMES months earlier. (Respondent never said that it "has no 

knowledge of the condition of the aircraft in May 201 0" as the FAA implied. Motion to Compel 

at 4-5.) But it is not up to AMES to have to guess what period oftime is covered by 

interrogatory number 12 particularly given the allegations in the Complaint that the work 

performed by AMES months earlier was the gravaman of the Complaint. All this leads to the 

question whether the FAA can produce any evidence of the condition of the aircraft when AMES 

completed its work or whether the FAA simply hopes to extrapolate backwards and speculate 

about the condition of the aircraft at much earlier points in time. Respondent suggests that such 

speculation is hardly the type of evidence that will satisfY the FAA's burden of proof in 

accordance with 14 C.F.R. §13.223. 

IV. Complainant argues in its Opposition to Respondent's Motion to Compel, albeit 

unpersuasively, that Respondent's discovery requests (Interrogatories 10-12 and Document 

Requests 4-1 0) seek information concerning "irrelevant complaints about the reporting 

inspector." Complainant's Response in Opposition to Respondent's Motion to Compel 

9 
("Opposition") at 3. Complainant's argument fails the test of what constitutes the legitimate 

scope of discovery. First, it should be observed that the standard for discovery is a liberal one. 

As set forth in Rule 26 of the Federal Rules of Civil Procedure "Parties may obtain discovery 

regarding any nonprivileged matter that is relevant to any party's claim or defense ... Relevant 

information need not be admissible at the trial if the discovery appears reasonably calculated to 

lead to the discovery of admissible evidence." Fed. R. Civ. P. 26(b)(l). As explained in the 

Advisory Committee Notes, this language was designed to make clear that otherwise relevant 

material could not be withheld because it was hearsay or otherwise inadmissible. 

Building on this foundation, Complainant concedes that the credibility of a witness is 

always an issue in litigation (Opposition at 3) but argues that the conduct complained of by 

Respondent does not show bias. Complainant could not be more incorrect. 

First, while Respondent referred to the specific comments of the Inspector trying to steer 

the Respondent's airline customer from AMES to another repair station by name, Complainant is 

· free to seek to discover other information that, in tum, could lead to admissible evidence of 

inspector bias or prejudice. Respondent's right to seek evidence that calls into question the 

Inspector's credibility is not constrained in any way based on this specific allegation when 

seeking information regarding inappropriate Inspector conduct. Accordingly, Document Request 

No. 6 seeking documents concerning complaints regarding the intimidating, harassing, abusive 

or inappropriate conduct of the Inspector and the other requests called out by Complainant on 

pages 3 and 4 of its Opposition are not objectionable simply because they do not necessarily 

relate to the Inspector's attempt to steer the Respondent's customer to another repair station. 

However, each of the requests seeks information regarding a pattern of conduct that could well 

be signs ofbias and prejudice. Indeed, the conduct observed by Respondent and its airline 

10 
customer over an extended period of time (going back to the time of the May 2010 inspections) 

was so disturbing that representatives of the affiliated companies raised the issue with FAA 

management-- an action not taken lightly given the possibility of retribution. See Respondent 

Interrogatory number 10 and Document Request number 4. 

In support of the need for this discovery, attached as Exhibit 2 is the Declaration of James 

Savastano, the former Vice President of Maintenance for Capital Cargo International Airlines, 

Inc., which provides a first-hand account of the statements oflrispector Lipinski that fully 

supports allegations of bias and prejudice. The Inspector is quoted making several intemperate 

comments regarding AMES and the Inspector's goal of having AMES's certificate suspended by 

the FAA. The Inspector also attempted to pressure AMES's air carrier customer, Capital Cargo, 

to remove AMES as an "essential maintenance provider" from Capital Cargo's operations 

specifications. See Declarations of James Savastano and John Sullivan. Exhibit 2. Also 

included in Exhibit 2 is the Declaration ofW. Joseph Payne, Senior Vice President, Corporate 

General Counsel and Secretary of Air Transport Services Group, the parent of AMES and 

Capital Cargo, who attended a meeting on March 30, 2012 between representatives of the FAA 

and Capital Cargo during which complaints regarding the Inspector's conduct were presented to 

the FAA. 

Next Complainant argues that some of the Respondent's requests relate to specific events 

that occurred in 2012 while the FAA civil penalty notice was issued a year earlier. See 

Opposition at 4, However, the fact that the meetings held to address concerns about the 

Inspector or the meetings in which the Inspector was quoted as referring to AMES "as evil" were 

conducted after the enforcement matter was first investigated or initiated does not mean that the 

11 
Inspector was not exhibiting bias or prejudice prior to the meetings about which information is 

being sought. 

Complainant next tries to explain in its Opposition that it is reasonable for an inspector to 

have negative views of the competency of the repair station having determined that it had 

violated the Federal Aviation Regulations. Opposition at 4. First, Complainant has confused 

allegations of violations of the rules with actual findings of violations. The Complainant's 

attempt at excusing the Inspector's deep-seated negative views of Respondent supports rather 

than refutes the Respondent's claims of bias and prejudice. The Respondent, which has no 

record of any prior findings ofF AR violations warranting legal enforcement (i.e., civil penalty) 

action, has worked with many FAA inspectors over the years, and the actions of the Inspector in 

this case are in sharp contrast to the even-tempered, professional relationship the Respondent has 

with all other representatives of the FAA. 

Complainant also seeks to excuse the conduct of the Inspector by arguing that it is the job 

of the Inspector to question the qualifications of a repair station used by an air carrier. 

Opposition at 5. First, there is no claim by the FAA that AMES lacked the qualifications to 

perform the maintenance CCIA contracted it to complete. AMES's operations specifications 

permitted AMES to perform landing gear changes on all three B-727 aircraft and AMES did not 

exceed its authority and the FAA has not alleged it did so. Second, even if it were appropriate 

for the Inspector to guide AMES's airline customer to another repair station, there is no 

explanation whyhe would do so by specifically naming the other organization and apparently 

linking the redirection of the airline's business to the outcome of a another enforcement action. 

Having done so, one can reasonably conclude that the Inspector adopted a particularly 

12 
adversarial relationship with the Respondent that, in tum, is grounds for exploring the basis for 

his extreme opinions and views. 

V. Despite having waived its stated objection to the timeliness of receipt of 

Respondent's discovery requests, the FAA has now backtracked and contends that Respondent's 

February 6, 2014 discovery requests were untimely since they were not sent to FAA counsel "on 

or before January 28, 2014" and therefore Your Honor should not compel the FAA to respond. 4 

Complainant's Response in Opposition to Motion to Compel at 1-2. The FAA's position is 

based on a flawed reading of Your Honor's Order Setting Litigation Dates and Procedures, dated 

November 7, 2013 (the "Order"). Paragraph A. 2. of the Order clearly describes January 28, 

2014 as the "General Discovery Start Date" (emphasis in original) and not as a "deadline." In 

contrast, January 14,2014 is described in the immediately preceding paragraph as the "Deadline 

for Initial Disclosures." Order at -,r A. 1 (emphasis in original). In addition, paragraph A. 8. of 

the Order sets June 6, 2014 as the "Deadline for Completing General Discovery."5 While 

paragraph 2 of the Order states that the parties shall begin serving additional general discovery 

requests"[ o]n or before January 28, 2014" nothing in the Order prohibits a party from serving 

discovery requests after this date save perhaps by the practical requirement that the receiving 

party has sufficient time to respond before the June 6,.2014 deadline for completing general 

discovery. The Order read as a whole simply does not support the FAA's view that if a party did 

4 FAA counsel states that as a "courtesy" he has agreed to respond to Respondent's discovery 

requests that, in his view, "did not consist of irrelevant personal attacks on the reporting 

inspector and/or deliberate requests for privileged information." Response in Opposition to 

Motion to Compel at 1, n. 1. 

5 Other dates in the Order are also referred to as a "Deadline" or a "due date" (see paragraphs A. 

9, A. 11 and A. 12). Use of these terms in other provisions of the Order further undercuts the 

FAA's incorrect position that even though January 28, 2014 is referred to as a "Start Date" it 

was actually the deadline or due date for initial discovery. 

13 
not initiate discovery by January 28, 2014 that the party is forever barred from serving discovery 

in this case at any time thereafter. 

Finally, if Respondent's discovery requests were untimely then so too were the FAA's .. 

Counsel for the FAA states in his Motion to Compel that "[p ]ursuant to the Judge's scheduling 

order, the FAA promulgated discovery requests to Respondent on January 28,2014 via facsimile 

and via the mail." Motion to Compel at 1. This is incorrect. Although the Certificate of Service 

attached to the FAA's First Discovery Requests claims that the discovery requests were sent to 

Respondent's counsel via certified mail and facsimile on January 28, 2014, the post mark on the 

envelope shows that they were not mailed until three days later on January 31, 2014. Exhibit 3. 

Further, Respondent never received the facsimile of the FAA's discovery requests that the FAA 

claims to have sent on January 28,2014. Accordingly, the FAA should be estopped from 

objecting to Respondent's discovery requests based on a claim of untimeliness since the FAA 

itself did not even comply with its own erroneous reading of the Order when propounding its 

initial discovery. 6 

6 FAA counsel also complains that because Respondent served its discovery requests on 

February 6, 2014 that the FAA's responses were not due until March 10, 2014, and that we are 

now in the time period when depositions are to be conducted. See Response in Opposition to 

Motion to Compel at 2. If FAA counsel were truly concerned about the timing of Respondent's 

discovery requests, then why did the FAA wait until the last possible day to object to the 

discovery requests based on their alleged untimeliness? Further, as noted above, the FAA states 

that it has agreed to respond to Respondent's discovery requests to which it does not otherwise 

object, but the FAA did not do so until March 24, 2014 -- or 14 days after the original deadline 

for responding to the Respondent's discovery requests. 

14 
WHEREFORE, for the reasons set forth above, Respondent respectfully requests that 

Your Honor grant its Motion to Compel, dated March 10, 2014, and that Complainant's Motion 

to Compel, dated March 14,2014, be denied. 

Dated: March 25,2014 

Respectfully submitted, 

SILVERBERG, GOLDMAN & BIKOFF, L.L.P. 

Attorneys for 

AIRBORNE MAINTENANCE AND 

EN~RING. SERVICES . 

By: ;:~1/k. Robert P. Silverberg, Esq. ") 

1101 30th Street, N.W. 

15 

Suite 120 

Washington, D.C. 20007 

Tel: (202) 944-3304 

Fax: (202) 944-3306 

Email: rsilverberg@sgbdc.com 
EXHIBIT 1 
'{In Archive} Capital Cargo AircraftN287SC 

RandyBuol 

to:· 

daniel.boggs@airbomemx.com 

.·· 03/22/2010 05:43PM 

!,''Cc::'' 

· 1'Brady.Templeton@airbomemx.com", Charles Werking 

Hide Details 

· From: Randy Buol <rbuol@capitalcargo.com> 

:.4· : .. -. 

. . '1-~: "daniel.boggs@airbornemx.com" <daniel.boggs@airbomemx.co!W 

Page 1 of 1 

b~: "Brady.Templeton@airbomemx.com" <Brady.Templeton@airbomemx.com>, Charles 

. rxerking -o::cwerking@capitalcargo.com> 

' :i 

. ' 

. : . . !'..,' ' ' : . : 

..... l .. ' 

History: This message has been forwarded. 

, ,.Afchive: This message is being viewed in an archive. 

'-i ;! .. : Dan, \;_-,::; :.,):::< .:.,· 

I wanted to write a quick note to say thank you for an on-time, high quality delivery of our aircraft. 

After the testfljght our aircraftis.now in Toledo and on schedule for its next revenue flight. 

Please pass;ori Fo your team my thanks for a job well done. 

. : ~ ~ : 

Best regards,, 

Randy Bu~l :': . 

VP Maintemln'ce • , , 

Capital Cargo., 

·.; ;. : .. ·'·· 
EXHIBIT 2 
In the matter of 

BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Docket No. FAA-2013-0291 

FAA Case No. 2011S0290032 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES 

Respondent 

Administrative Law Judge 

J.E. Sullivan 

DECLARATION OF JAMES SAVASTANO 

I, James Savastano, hereby declare as follows: 

1. I am currently the Vice President of Technical Operations for Airborne 

Maintenance and Engineering Services ("AMES"). From April20llto June 2012, I held 

the position ofVice President of Maintenance at Capital Cargo International Airlines, 

Inc. ("CCIA"). 

2. On March 2&, 2012, Steven Santangelo, then Director of Quality Control 

and Chiefinspector for CCIA, and I attended a meeting at CCIA' s offices in Orlando, 

Florida with FAA Inspectors Frank Lipinski and Richard D' Arcy. During the March 2&, 

2012 meeting, Inspector Lipinski stated that he "views AMES as evil," that tomorrow the 

"war begins," that he will take ''no prisoners," that the "shit is going to start" and 

questioned why AMES is still listed on CCIA 's Ops Specs as an essential maintenance 

provider and suggested that his goal and desire is to have AMES's certificate suspended. 

3. On more than one occasion when I was serving as Vice President of 

Maintenance for CCIA, Inspector Lipinski told me that CCIA should use another Part 

145 Repair Station for CCIA's aircraft repair and maintenance services instead of using 
CCIA's affiliate, AMES. Specifically, Inspector Lipinski told me on several occasions 

that CCIA should use Flightstar Aircraft Services, LLC in Jacksonville, Florida for its 

aircraft repair and maintenance services instead of AMES. 

Declared under penalty of peljury this 24th day of March 2014. 

2 
BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the matter of 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES 

Respondent 

Docket No. FAA-2013-0291 

FAA Case No. 2011S0290032 

Administrative Law Judge 

J .E. Sullivan 

DECLARATION OF JOHN SULLIVAN 

I, John Sullivan, hereby declare as follows: 

1. I am currently the Director of Flight Standards and Training for Air 

Transport International, Inc ("AT!"). From January 2012 to August 2012, I held the 

position of Chief Pilot at Capital Cargo International Airlines, Inc. ("CCIA"). 

2. On March 13, 2012, I attended a meeting at the FAA offices in Orlando, 

Florida with FAA Inspectors Frank Lipinski, Richard D' Arcy, Roy Miller, Jeff Hipps, 

Jack Gasche and William Bonatti. During the Mach 13, 2012 meeting, Inspectors 

Lipinski and D' Arcy made statements suggesting that if CCIA removed AMES from its 

D-091 Operations Specification (essential maintenance provider list) that it would benefit 

CCIA in another potential enforcement action. 

Declared under penalty of perjury this 25th day of March 2014. 
In the matter of 

BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

Docket No. F AA-2013-0291 

FAA Case No. 2011S0290032 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES 

Respondent 

Adnlinistrative Law Judge 

J.E. Sullivan 

DECLARATION OF W .. JOSEPH PAYNE 

I, W. Joseph Payne, hereby declare as follows: 

l. I am cmrently the Senior Vice President, Cmporate General Counsel and 

Secretary of Air Transport Services Group ("ATSG"), the parent of Airborne Maintenance and 

Engineering Services ("AMES") and ABX Air, Inc. ("ABX Air"). I have held this position 

since February 2008. I am also currently the Vice President, General Counsel & Secretary of 

ABX Air, an FAA-certificated Part 121 air can'ier and an affiliate of AMES, and have held this 

position since January 2004. In addition, I am the Vice President, Secretary of AMES and have 

held thi.s position since it was first incorporated in February 2009. 

2. On March 30, 2012, J attended a meeting with Robett Talmadge, Manager of the 

FAA's South Florida Cettificate Management Office in Orlando, Florida along with Dennis 

Manibusan, then President of Capital Cargo International Airlines, Inc. ("CCIA"). The meeting 

was requested by the carrier and its parent company, ATSG, to express our concerns that FAA 

Inspector Frank Lipinski had been and was continuing to abuse his discretion and otherwise act 

in an inappropriate matmer in overseeing the operations of CCTA. 
3. We explained to Mr. Talmadge that CCIA had previously expressed its concerns 

about Inspectm· Lipinski to his direct superior, Charles Beers. And that, upon seeing no change 

in Inspector Lipinski's behavior, had reluctantly detemilned to bring this matter to his attention. 

4. During the course of the meeting, Dennis Manibusan and I provided Mr. 

· Talmadge with of examples of intimidating, harassing, abusive and inappropriate behavior on the 

part of Mr. Lipinski. Among other matters, tl1e discussion included a meeting that Inspector 

Lipinski attended with CCIA personnel on March 13, 2012, during which he indicated his 

intention to pursue legal action against AMES and CCIA, but that the action against CCIA wo.uld 

be mitigated if ilie carrier removed AMES from its list of essential maintenance providers. We 

also discussed with Mr. Talmadge a meeting that lnspectm Lipinski attended with CCJA 

personnel on March 28, 20 12, during which he made several inappropriate comments to CCIA 

persmmel concerning AMES, including that he will seek to liave its FAA -issued repair station 

certificate suspended, and questioned why AMES was still on CCIA's essential maintenance 

provider list. We also explained that Inspector Lipinski's comments made at the March 28, 2012 

meeting, included that he "views AMES as evil", he intends to start a "war" with AMES, will 

take "no prisoners", and that "the slut is going to start." 

5. We explained to Mr. Talmadge that AMES, including its management, persmmel 

and facilities, primarily consisted of the former Aircraft Maintenance Department for ABX Air, 

an FAA-certificated Part 121 air carrier which has been in business since 1980, and that, in our 

view, both ABX Air and AMES enjoyed a reputation for the quality of their maintenance 

operations. We expressed to Mr. Talmadge our belief that the FAA persmmel who oversee 

AMES' operations did not share Inspector Lipinski's purpmied concerns regarding AMES' 

operations and encouraged him to communicate with such FAA personnel in this regard. 

2 
6, We explained that ATSG encouraged its three air carriers, ABX Air, Air 

Transpmi International and CCIA to contract with AMES for the performance of aircraft 

maintenance services for business reasons, where possible, but that Inspector Lipinski seemed 

insistent that CCIA cease its business relationship with AMES and renew its business 

relationship with its former aircraft maintenance provider, Flightstar, whom CCIA had been 

doing business with for a number of years, 

Declared under penalty of perjury this 25th day of March 2014. 

3 
EXHIBIT 3 
U.S. DEPARitMd:'J'Ji1'cbr;'ltibl,~t\.\!Ft8N''IIt\'"·h•ll II1JI 

FEDERAL AVIATION ADMINISTRATION 

SOUTHERN REGIONAL OFFICE, AS0-7 

1701 COLUMBIAAVENUE 

ATLANTA, GA30337 ,II ~~ 1111". 

OFFICIALMAIL 7013 2630 0001 2747 5219 

"' 

Robert P. Silverberg, Esq. 

1101 30th Street, NW Suite 120 

Washington, D.C. 20007 

"-"·~ --

~·~-Ji: ")l:.f ~llk~'t.~~<;;t.r"'"' us 
CERTIFICATE OF SERVICE 

I hereby certify that on this 251

h day of March 2014, I caused a true copy of the foregoing 

Respondent's Opposition to Complainant's Motion to Compel Production and Reply to 

Complainant's Opposition to Respondent's Motion to Compel to be served by FedEx overnight 

delivery addressed to: 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building 

Suite 2Wl000 

Washington, D.C. 20591 

(Attention: Hearing Docket Clerk, AGC-430) 

Tel: (202) 385-8229 

(original and one copy) 

The Hon. J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, D.C. 20590 

Tel: (202) 366-2132 

Christopher R. Stevenson, Attorney 

Office of the Regional Counsel, AS0-7 

Southern Region 

Federal Aviation Administration 

1701 Columbia Avenue 

College Park, GA 30337 

Tel: (404) 305-5200 

z~~1 Robert P. Silverberg ~