# SILVERBERG GOLDMAN& 

# BIKOFF, 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-rSTREET, NW • \'i;TASHI)JGTON, D.C.**~0007** VOICE (?0?) 944-3300 • fACSIMILE (202) 944-3306

March 25,2014 

# RECEIVED MAR 2 62014 

## HEARING DOCKET

(Attention: Hearing Docket Clerk, AGC-430) Re: In the Matter ofAirborne 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 ofthe 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 SERVICESBEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 

# RECEIVED
HEARING DOCKET In

### the matter of Docket No. FAA-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. Respondentherebyurges the Complainant's motion be denied. Complainant also filed on the same date an opposition to Respondent's Motionto Compel and Respondent hereby replies to the Complainant's Opposition. As the issues raised inthe Complainant's Motionto 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 cannotrefuse 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 makein its March 14, 2014 Motion to Compel since it did not make any response to Respondent's discovery requests until ten days later onMarch 24,2014. This is full14 days after Complainant's responses were originally due to be served on Respondent on March 10,2014. Moving beyond the issue ofthe FAA's lateresponse, Complainant's Interrogatory number 2 states: Ifyou assert that the inspector's statements inthis matter (inclusive ofrecords of conversation, e-mails, memoranda, orother documents), as contained inthe EIR, contain any inaccuracies, falsehoods, mischaracterizations, orother errors, please specificallyidentity such errors, describe in detail yourbasis for believing that the statement is in error, and describe what you believeto be the actual situation. The Respondent's answer to this interrogatory was straightforward. Respondent stated that manyportions ofthe Inspector's statement consisting ofSection B ofthe FAA -compiled Enforcement Investigation Report ("EIR") wereredacted in the version ofthe document provided when the FAA first madeit available to Respondent. Respondent indicated that when the document inits entirety is produced, a response wouldbe forthcoming. See Respondent's Responses to FAA's First Discovery Requests at 2 (attached as ExhibitB to Complainant's Motion to Compel). Theproblem is that Complainanthas refused to producetheunredacted version ofthe document. To address Complainant's refusal to produce anuiJredacted version of the document, Respondent, inits pending Motion to Compel, dated March 10,2014,has requested that the document bereviewed in camera byYour Honorto determine ifthe redacted
. material is privileged as claimedby Complainant. Respondent has noted that the privileges assertedby Complainant are limited in scope and can be overridden when a partyquestions the decisionmakingprocess, as the Respondent has in this matter. See Respondent's Motionto Compel at4. Apart from the need for Your Honorto sort outthe issue ofthe privilege to be accorded SectionB ofthe EIR, (Exhibit 4 to Respondent's Motionto Compel) unless all ofthe inspector's

2statements 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 athearing that was based on a redacted statement inthe EIR, Respondent will have been deprived ofthe opportunity guaranteedbyRule 26 ofthe Federal Rules ofCivil Procedure to obtain not only obviously relevant information necessaryto prepare for these oral examinations, butinformation that could lead to the discovery ofadmissible evidence. Theredaction issue has special significance inthis case. Respondent is very troubled by actions ofthe 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 ofthe Inspector and the veracity ofhis written statements onwhich the FAArelied to bring this enforcement action. For example, in Section B, page 14 ofthe EIRthe.entire section titled "Attitude ofthe Violator" has been redacted. This is a crucial portion ofthe document that could well display the Inspector's bias in this matter against the Respondent. Whyotherwise would counsel for Complainant be working so hard to shield the information from Respondent? Respondent is a well regarded major overhaul centerperforming aircraft maintenance and repairs for 22 different air carriers (both foreign and domestic). Itis in good standing with the FAA with all butthe investigating Inspector. Even though Respondent was advised that the Inspector sought to have Respondent's own Principal Maintenance Inspector ("PMI") take action against Respondentbased on performance ofthe maintenance at issue in this case, no such action was taken. Respondent mustbe given the opportunity to explore whether the Inspector's focus onthe actions ofthe Respondent are properly grounded in fact or, as is likely, the product ofbias or

3

### prejudice and to do so onthe basis ofhis writings and an unredacted version ofthe document is necessaryto do so. Complainant argues that Respondent must answer Interrogatory number 2 even ifan unredacted version ofthe document is not made available. See 

### Complainant's Motionto Compel at 2-3. Whileit maybethe general rule that the obligation ofthe parties to respond to discovery requests are said to be independent, in this case Respondent has been specifically askedby 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 ofthe Inspector contain inaccuracies, falsehoods, mischaracterizations, or other
errors. Respondent can only do so ifthe statements are first produced intheir entirety. Finally, on this point, Respondent is entitled to be informed ofthe full context ofthe Inspector's views and findings priorto commenting upon them. The redactions appear in several paragraphs ofSection B ofthe EIR that purport to state the facts (that Respondent contests) on which the FAA is relying to support its allegations. Based on where some ofthe redacted statements appear in a paragraph or otherportion ofSection 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 ofthe errors and misstatements in the Inspector's report. II. In its Opposition to the Respondent's Motion to Compel the position of Complainantis that the entire Section B ofthe EIR is subjectto the attorney-client privilege

1 

### Rule 26(d) authorizes the tribunal to order the Complainant make its disclosures prior to the other partyresponding when itis "in the interest of justice." The Committee Notes make clear that Courts will and do delay discovery where it is dictatedby special considerations and/or compelling reasons, such as those present in this case.
4because it was produced at the request ofand for the benefit ofagency counsel. See Complainant's Response inOpposition to Respondent's Motion to Compel at 8. Complainant doth protest too much. IfComplainant's argument was correct, then all ofSection B would be privileged and beyond the reach ofdiscovery. Butthe document was produced, less certain redactions. While Respondent rejects the argument that all ofSection B isprivileged, by producing the document Complainant has waived whatever, ifany, attorney-client privilege attaches to the document and nowhas no basis to assert itwith respect to any factual statements that have beenredacted. Respondent requests that Your Honor conduct an in camera inspection ofthe document to determine whether redacted text mustbeproduced, ifthe FAA will not produce the document in its entirety, and provide Respondent the opportunityto comment upon Section B as a whole as demandedby Complainant in its interrogatorynumber 2. Also in Complainant's Opposition it is taking the position that the redacted portions are coveredbythe 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 onlymakes the argument that a respondent need only assert a claim ofbias in orderto overcome the deliberative process privilege. First, mere assertion ofbias would not be enough to overcome the privilege. Buthere, Respondent propounded discovery citing specific incidents displaying Inspectorbias and intimidation and would, ifanswered, produce information that could lead to admissible evidence. These priorincidents are disturbing and are atypical ofthe attributes one usually finds when dealing with FAA inspectors. It is the very unique and unfortunate history ofthe Inspector's interactions with Respondent and Respondent's air carrier customer that provide the foundation for claims ofbias.

5Complainant nonetheless argues that the Inspector's negative views ofRespondent are the natural outgrowth ofhis investigation and his conclusion regarding the quality ofthe work performedbyRespondent and, Complainant argues, ifthat is all it takes to allege bias, then every enforcement proceeding can be subject to similar "harassing" discovery. Opposition at4-5. What Complainanthas not grasped is the extent to which this Inspector acted beyond the boundaries ofestablished norms. Respondent's officials have dealt with scores ofFAA inspectors over the years and without exaggeration, they have never witnessed the type ofbias and intimidation theyhave observed in this matter. In short, permitting discovery ofbias in this
case is fullyjustified and will not open up the FAAto similar discovery demands, unless of course, it isjustified. Another argument asserted by Complainant in its Oppositionto Respondent's Motion to Compel, but not one to betaken seriously, is that ifRespondent 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 ofa witness is always in

issue. See Opposition at 3. However, evenifit were true that AMES has committed "numerous maintenance failures" in the past, which it is not, Complainant cannot show that such failures relate in anywayto the allegations in this case. In fact, the FAAhas not levied even a single civil penaltyupon AMESsinceits inception in 2009 based on a finding ofa violation ofthe Federal Aviation Regulations and counsel for Complainant shouldbe cautioned notto be so reckless as to suggest or imply otherwise.2 Complainant's threat that it will explore, through discovery, the unrelated maintenance performed byAMES ifthe Judge were to permit

2 Counsel for the FAA could easily have looked up the civil penaltyhistory ofAMES before committing the words "numerous maintenance failures" to writing. 6

### Respondent to inquire as to the bias ofthe Inspector is just that

-- a threat

-- and presumes (quite incorrectly) that the presiding lawjudge would notbe in a position to regulate the conduct ofthe parties during the discoveryphase ofthe litigation. 3 

### But even ifthe FAA had previously found a maintenance violation on the part ofAMES, such prior infraction cannot prove the FAA's allegations in this matter. The FAA's allegations inthis matter involve three discrete maintenance operations undertaken byAMES for one customer and not maintenance conducted for others. Any attempt byFAA to enlarge discovery
on this basis wouldberesisted as a matter ofprinciple and could hardly be expected to succeed
even under the liberal rules ofdiscoverybecause 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 ofthe landing gear and flying door assemblies at issue in this matter, including but not limited to the status ofthe 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, cotterpins, anti-skid wiring conduits, hydraulic lines, trunions, and any other mounting hardware. The Respondent noted in its response that the interrogatorywas not clearbecause it did not specifythe relevant date bywhich to guide its answer. Respondent also noted that as ofthe date AMES completed the landing gear changes, the condition ofthe 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 ofAMES, an affiliated air carrier, Capital Cargo, considered the work ofAMES to be oflow quality. Butthat unsupported statement is contradicted bythe e-mail from Capital Cargo to AMES praising its work as shown in Exhibit 1.
7First Discovery Requests at 7 (attached as Exhibit B to Complainant's Motion to Compel). Complainant now claims that, even though it admits the discoveryrequest lacked any specific point in time, the request "coveredthe condition ofthe components atall times material to this litigation (that being August 2009 through May2010)." Motion to Compel at 4. Ofcourse, AMES is not the operator ofthe aircraft and would have no basis to respond to this sweeping FAA request a:nd would have objected onthat 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 ofthe FAA Complaint that in March 2010AMES replaced the MLG onN287SC; inAugust2009, AMES replaced the MLG onN899AA; and in October 2009 AMES replaced the MLG onN898AA, in each case improperlyreinstalling and rigging the landing gear doors. Therefore, contrary to the position ofComplainant that the relevantpoint in time to measure compliance is May 2010, the condition ofthe components at that time does not align with the FAA's allegations in the Complaint that AMES breached theregulations when it completed its gear change activities. Therefore, the AMES response to interrogatorynumber 12 was appropriate and complete based upon the FAA's allegations in the Complaint. The burden is on the FAAto 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 orproperly altered condition thereby violating the FAR's. This is thetask the FAA set out for itselfand itmust be in a position to prove on the basis ofa preponderance ofreliable, probative, and substantial evidence that onthe dates AMES completed its work that the aircraft were not intheir original or

8

### properly altered condition due to the actions ofAMES·-- and not as the aircraft mayhave appeared on dates as many as nine months later. Ifthe FAA cannot make such a showing because itlacks the evidence to support its allegations, then the Complaint should be dismissed. Ifthe FAA seeks to elicit a response from AMES regarding the condition ofthe aircraft
on May25,2010, the FAA could have made its interrogatory clear and unambiguous, but it did not do so because it specified no 

### date to beused when asking AMES to describe the condition of the aircraft. To be sure, AMES disputes the FAA's false statements and exaggerated descriptions ofthe condition ofthe landing gear and flying door assemblies on May 2010 and the FAA's position that the alleged substandard condition was the direct consequence ofanymisrigging ofthe flying doors byAMES months earlier. (Respondent never said that it "has no knowledge ofthe condition ofthe aircraft in May 2010" as the FAA implied. Motion to Compel at 4-5.) But itis not up to AMES to have to guess what period oftime is covered by interrogatory number 12 particularly given the allegations inthe Complaintthat the work performedbyAMES months earlierwas the gravaman ofthe Complaint. All this leads to the question whether the FAA can produce any evidence ofthe condition ofthe aircraft when AMES completed its work or whether the FAA simply hopes to extrapolate backwards and speculate about the condition ofthe aircraft at much earlier points in time. Respondent suggests that such speculation is hardly the type ofevidence that will satisfY the FAA's burden ofproofin 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 ofwhat constitutes the legitimate scope ofdiscovery. First, it should be observed thatthe standard for discovery is a liberal one. As set forth in Rule 26 ofthe Federal Rules ofCivil Procedure "Parties may obtain discovery regarding anynonprivileged matter that is relevant to any party's claim or defense
... Relevant information need not be admissible atthe trial ifthe discovery appears reasonably calculated to lead to the discovery ofadmissible 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 notbe withheld because itwas hearsay or otherwise inadmissible. Building on this foundation, Complainant concedes that the credibility ofa witness is always an issue in litigation (Opposition at 3) but argues that the conduct complained ofby Respondent does not show bias. Complainant could notbemore incorrect. First, while Respondentreferred to the specific comments ofthe Inspector trying to steer the Respondent's airline customer from AMES to another repair station byname, Complainant is

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

inspector bias orprejudice. Respondent's right to seek evidence that calls into question the Inspector's credibility is not constrained in anywaybased 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 ofthe Inspector and the otherrequests called outby Complainant on pages 3 and 4 ofits Opposition are not objectionable simplybecause they do not necessarily relate to the Inspector's attempt to steer the Respondent's customer to another repair station. However, each ofthe requests seeks information regarding a pattern ofconduct that could well be signs ofbias and prejudice. Indeed, the conduct observedbyRespondent and its airline

10customer over an extended period oftime (going backto the time ofthe May 2010 inspections)
was so disturbing that representatives ofthe affiliated companies raised the issue with FAA management-- an action not taken lightly given thepossibility ofretribution. See Respondent Interrogatorynumber 10 and Document Request number 4. In support ofthe need for this discovery, attached as Exhibit 2 is the Declaration ofJames Savastano, the former Vice President ofMaintenance for Capital Cargo International Airlines, Inc., which provides a first-hand account ofthe statements oflrispector Lipinski that fully supports allegations ofbias and prejudice. The Inspector is quoted making several intemperate comments regarding AMES and the Inspector's goal ofhaving 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 "essentialmaintenance provider" from Capital Cargo's operations specifications. See Declarations ofJames 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 ofAir Transport Services Group, the parent ofAMES and Capital Cargo, who attended a meeting onMarch 30, 2012 betweenrepresentatives ofthe FAA and Capital Cargo during which complaints regarding the Inspector's conduct were presented to the FAA. Next Complainant argues that some ofthe 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 aboutthe Inspector or the meetings inwhichthe Inspector was quoted as referring to AMES "as evil" were conducted after the enforcementmatter was first investigated or initiated does not mean that the

11Inspector was not exhibiting bias orprejudice priorto the meetings about which information is being sought. Complainant next tries to explain in its Opposition that it is reasonable for an inspectorto have negative views ofthe competency ofthe repair station having determined that it had violated the Federal Aviation Regulations. Opposition at 4. First, Complainant has confused allegations ofviolations ofthe rules with actual findings ofviolations. The Complainant's attempt at excusing the Inspector's deep-seated negative views ofRespondent supports rather than refutes the Respondent's claims ofbias and prejudice. The Respondent, which has no record ofanypriorfindings ofF ARviolations warranting legal enforcement (i.e., civil penalty) action, has worked with many FAA inspectors over the years, and the actions ofthe Inspector in this case are in sharp contrast to the even-tempered, professional relationship the Respondent has with all otherrepresentatives ofthe FAA. Complainant also seeks to excuse the conduct ofthe Inspectorby arguing that it is thejob ofthe Inspector to question the qualifications ofa repair station usedby an air carrier. Opposition at 5. First, there is no claim bythe FAAthat AMES lacked the qualifications to perform the maintenance CCIA contracted itto 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 FAAhas not alleged itdid so. Second, even ifit were appropriate for the Inspector to guide AMES's airline customer to another repair station, there is no explanation whyhewould do so by specificallynaming the other organization and apparently linking the redirection ofthe airline's business to the outcome ofa another enforcement action. Having done so, one can reasonably conclude that the Inspector adopted a particularly

12adversarial relationship withthe 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 ofreceipt of Respondent's discovery requests, the FAAhas nowbacktracked and contends that Respondent's February 6, 2014 discovery requests were untimely since they were not sent to FAA counsel "on
orbefore January 28, 2014" and therefore Your Honor should not compel the FAAto respond. 4 Complainant's Response in Opposition to Motionto Compel at 1-2. The FAA's position is based on a flawed reading ofYour Honor's Order Setting Litigation Dates and Procedures, dated November 7, 2013 (the "Order"). Paragraph A. 2. ofthe 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 inthe immediatelypreceding 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 ofthe Order states that the parties shall begin serving additional general discovery requests"[o]n orbefore January 28, 2014" nothing inthe Order prohibits a party from serving discoveryrequests after this date save perhaps bythe practical requirement that the receiving partyhas 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 viewthat ifa party did

4 FAA counsel states that as a "courtesy" hehas agreed to respond to Respondent's discovery requests that, inhis view, "did not consist ofirrelevant personal attacks onthe reporting inspector and/or deliberate requests for privileged information." Response in Oppositionto 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 ofthese terms in otherprovisions ofthe Order further undercuts the FAA's incorrect positionthat even though January 28, 2014 is referred to as a "Start Date" it was actuallythe deadline or due date for initial discovery. 13

### not initiate discoverybyJanuary 28, 2014 that the party is forever barred from serving discovery inthis case at any time thereafter. Finally, ifRespondent's discovery requests were untimely then so too were the FAA's
.. Counsel for the FAA states in his Motion to Compel that "[p]ursuantto the Judge's scheduling order, the FAApromulgated discoveryrequests to Respondent on January 28,2014 via facsimile and via the mail." Motion to Compel at 1. This is incorrect. Although the Certificate ofService attached to the FAA's First Discovery Requests claims thatthe 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 theywere not mailed until three days later on January 31, 2014. Exhibit 3. Further, Respondent never received the facsimile ofthe FAA's discovery requests thatthe FAA claims to have sent on January 28,2014. Accordingly, the FAA shouldbe estopped from objecting to Respondent's discovery requests based on a claim ofuntimeliness since the FAA itselfdid not even comply with its own erroneous reading ofthe Order when propounding its initial discovery. 6

6 

### FAA counsel also complains thatbecause 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 thetime period when depositions are to be conducted. See 

### Response in Opposition to Motion to Compel at 2. IfFAA counsel were truly concerned about the timing ofRespondent's discoveryrequests, then why did the FAA wait until the last possible dayto 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. 14WHEREFORE, 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 1of 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, Iwanted towrite a quick note to saythank you for an on-time, high quality delivery ofour aircraft. Afterthetestfljghtour aircraftis.now in Toledo and on schedule for its next revenue flight. Please pass;ori Fo yourteam my thanks for ajob well done.

. :**~ ~**  : Best regards,, Randy**Bu~l** :':
. VP Maintemln'ce • ,, Capital Cargo.,

·.; ;. : .. ·'··

# EXHIBIT 2Inthe matter of 

### BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
DocketNo. FAA-2013-0291 FAA CaseNo. 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 ofTechnical Operations for Airborne Maintenance and Engineering Services ("AMES"). From April20llto June 2012, Iheld the position ofVice President ofMaintenance at Capital Cargo International Airlines, Inc. ("CCIA"). 2. OnMarch2&, 2012, Steven Santangelo, thenDirector ofQuality 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 "warbegins," that he will take ''no prisoners," that the "shit is going to start" and questioned why AMES is still listed on CCIA'sOps Specs as an essentialmaintenance provider and suggested that his goal and desire is to have AMES's certificate suspended. 3. On more than one occasion when Iwas serving as Vice President of Maintenance for CCIA, Inspector Lipinski told me that CCIA should use another Part 145 Repair Station for CCIA's aircraftrepair and maintenance services instead ofusing

### CCIA's affiliate, AMES. Specifically, InspectorLipinski told me on several occasions that CCIA shoulduse Flightstar Aircraft Services, LLC inJacksonville, Floridafor its aircraftrepair and maintenance services instead ofAMES. Declaredunder penalty ofpeljury 

### this 24th day ofMarch 2014.

2BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, D.C.
In the matter of AIRBORNE MAINTENANCE AND ENGINEERING SERVICES Respondent DocketNo. FAA-2013-0291 FAA CaseNo. 2011S0290032
Administrative Law Judge J.E. Sullivan

DECLARATION OFJOHN SULLIVAN I, John Sullivan, hereby declare as follows: 1. I am currentlythe Director ofFlight Standards and Training for Air Transport International, Inc ("AT!"). From January 2012 to August 2012, I held the position ofChiefPilot at Capital Cargo International Airlines, Inc. ("CCIA"). 2. On March 13, 2012, I attended a meeting at the FAA offices in Orlando, Florida withFAA Inspectors Frank Lipinski, Richard D'Arcy, RoyMiller, JeffHipps, Jack Gasche and William Bonatti. Duringthe Mach 13, 2012 meeting, Inspectors Lipinski andD'Arcy made statements suggesting thatifCCIA removed AMES from its D-091 Operations Specification (essential maintenance providerlist) that itwould benefit CCIA in another potential enforcement action. Declaredunderpenalty ofperjurythis 25th day ofMarch 2014.Inthe matter of BEFORE THE 

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS

WASHINGTON, D.C.
Docket No. FAA-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 ofAir Transport Services Group ("ATSG"), the parent ofAirborne 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 ofAMES, and have held this position since January 2004. In addition, I am the Vice President, Secretary ofAMES and have held thi.s position since itwas first incorporated in February 2009. 2. On March 30, 2012, 

### J attended a meeting with Robett Talmadge, Manager ofthe FAA's South Florida Cettificate Management Office in Orlando, Florida along with Dennis Manibusan, then President ofCapital 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 ofCCTA.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 matterto his attention. 4. During the course of the meeting, Dennis Manibusan and I provided Mr.

· Talmadge with ofexamples ofintimidating, 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 intentionto pursue legal action against AMES and CCIA, butthatthe action against CCIA wo.uld be mitigated ifilie carrier removed AMES from its listofessential 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 explainedthatInspector 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 slutis going to start." 5. We explained to Mr. Talmadge that AMES, including its management, persmmel and facilities, primarily consisted ofthe 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 encouragedhimto communicate with such FAApersonnel inthis regard. 26, 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 ofyears, Declaredunderpenalty ofperjury this 25th day ofMarch 2014.

3

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

### II1JI FEDERALAVIATION 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"'"'** 

### usCERTIFICATE OF SERVICE I hereby certify that onthis 25 1 h day ofMarch 2014, I caused a true copy ofthe foregoing Respondent's Opposition to Complainant's Motion to Compel Production and Reply to Complainant's Opposition to Respondent's Motionto 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 ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, D.C. 20590 Tel: (202) 366-2132 Christopher R. Stevenson, Attorney Office ofthe 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**~**