In The Matter Of: 

## SERVED: April 2, 2014
U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

DocketNo. FAA-2012-0477 LIBERTY FOUNDATION, INC. 

### ) ) 

### ) ) ) ) Case No. 2011-GL-03-0070 Respondent

ORDERDENYING THE FAA'S MOTION FOR PARTIAL SUMMARY JUDGMENT AND DECLARING AS ESTABLISHED CERTAIN UNDISPUTED FACTS**<'"'§;~** -..,. f

.... _**L~** .) G

OnAugust 15,2013 the FAA filed its Motion for Summary Judgment (Motion"). This Motion sought only partial dispositive relief, because it did not address the FAA'sproposed civil penalty assessment.
On January 31,2014the Respondent filed its Response in Opposition to [the] FAA's Motion for Summary Judgment (Response").
OnFebruary 14, 2014 the FAA filed a Motion to Exclude, in which it objected to the expert opinion testimony ofthree ofthe Respondent's witnesses.
On February 19, 2014 the Respondent filed its Response to FAA's Motion to Exclude.
On February 25,2014, the FAA filed a Reply in support ofMotionto Exclude.
OnFebruary 27, 2014 the parties convened for a telephone Motion Conference, and presented arguments onthe FAA'sMotion for Summary Judgment. Atthe conclusion oforal argument, bothparties were given the opportunity to file supplemental materials. OnMarch 5, 2014, the FAA filed its Supplement on Motion for Summary Judgment ("FAA Suppl."). OnMarch 6, 2014 the Respondent filed Respondent's Notice ofFiling Supplemental Documents ("R Suppl.").On March 24, 2014 an Order Extending Deadline for Filing List ofWitnesses and Exhibits was filed, which extended the March 25, 2014 deadline to April4, 2014.
On March 28, 2014 an Order Granting Relief, but Denying the FAA's Motionto Exclude Expert Testimony was filed.
A. SummaryJudgment Request for PartialDecision The FAA's August 15,2013 Motion for 

### Summary Judgment**seek~** a decision onthe merits ofall thirty-seven (37) counts ofthe eight (8) alleged violations ofthe Federal Aviation Regulations (FARs), withthe proposed civil penalty of$49,850 reserved for litigation at the evidentiary hearing scheduled to begin on April22, 2014 in Atlanta, Georgia.

B. Notice ofViolation and Proposed Penalty Assessment On or about June 21,2012 the Federal Aviation Administration's (FAA) Division Administrator for the Great Lakes Region filed a Complaint withthe U.S. Department of Transportation's (DOT) Office ofHearings inwhichthe FAA alleged thatthe Respondent, Liberty Foundation, Inc., had committed a minimum offour (4) violations 1ofthe Hazardous Materials Regulations, under49 C.F.R. 

### §171.2(e) et. seq. The FAA proposed a total penalty of 43,250 for the violations. On November 2, 2012 the FAA clarified, during a November 2, 2012 Motion Conference, that 

### itwas charging a total of 14 violations in its Complaint. There was one (1) violation of 14 CFR91.405(b), one (1) violation of 14 CFR 91.407 (a), and twelve (12) violations of 14 CFR91.7 (a). (11/2/12 Tr. 13: 3-16:10). OnJuly 31, 2013 the FAA filed Its Amendmentto Complaint ("7/31/13 Complaint"), in

1The June 21, 2012 Complaint alleged that 3 regulations had been violated. The Complaint alleged that under 14 CFR 91.7 (a), the aircraft identified as N390TH flew at least 12 times (Complaint, 3). Because the proposed penalty of$43,250 exceeded the maximum allowed for three violation (i.e, $33,000), but was within the maximum allowed for four violations (i.e., $44,000) it appeared likely that the FAA was charging a minimum offour (4) violations. However, the FAA did not identify in the Complaint whether it was charging 1 violation of 14 CFR91.7 (a) for all 12 flights, or I violation with 12 counts, or 12 violations of 14 CFR 91.7 (a) (Complaint, 4). Subsequently, on November 2, 2012 the FAA asserted during a Pre-Hearing Conference that it was charging.l2 violations of 14 CFR 91.7 (a). However, on February 27, 2014 the FAA asserted during a Motion Conference that it was charging 13 counts of 14 CFR 91.7 (a). Page 2 of21/

which it charged an additional five (5) violations? and proposed an increase inthe penalty from $43,250 to $49,850 (i.e., a $6,600 increase). On February 27,2014the FAA clarified, during the Summary Judgment Motion Conference, that it was alleging a total ofeight (8) regulations violated inits 7/31/13 Complaint. The FAA stated that it was charging the following: ViolationNo. 1 - 14 CFR91.405 (b): two counts; Violation No.2- 14 CFR 91.407 (a): thirteen counts; Violation No.3- 14 CFR 91.7 (a): thirteen counts; ViolationNo.4- 14 CFR43.5 (a): one count; ViolationNo.5- 14 CFR43.9 (a); two counts; ViolationNo.6- 14 CFR43.9 (d): two counts; Violation No.7- 14 CFR43.13 (a): two counts; and ViolationNo.8 -14 CFR 43.13 (b): two counts. (2/27/14 Tr. ).

C. Standard ofReview for Summary Judgment Pursuant to 14 C.F.R. 

### § 13.218, a party may file motions, including a motion for a decision onthe merits, in advance ofa hearing when a party asserts that there is no disputed material issues offact to be heard. Pursuant to 14 C.F.R. 

### § 13.218(f)(5), any motion for a decision onthe merits priorto a testimonial hearing is reviewed under the same standard as a summaryjudgmentmotion (Civ. R. 56).
The purpose ofsummaryjudgmentis "to isolate, and then terminate, claims and defenses that are factually unsupported." Steven Baicker-McKee, et.al, Federal CivilRulesHandbook, West Publishing (2012)(Rule 56).
Pursuantto Civ. R. 56 (a), a summaryjudgment motion may be granted if"the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter oflaw." See, Anderson v. LibertyLobbyInc., 477 U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Circuit 2006). 

### In addition, pursuantto Rule 56 (f), summaryjudgmentmay also be granted to a non-moving party, after all parties have had notice and a reasonable time to respond.
A fact is "material" ifitis capable ofaffecting the substantial outcome ofthe litigation. Holcomb, 433 F.3d at 895; LibertyLobby, Inc., 477 U.S. at 248. A dispute is "genuine" ifthe evidence is suchthat a reasonable trier offact couldreturn a verdict for the non-movingparty.

2 The newly charged regulations were: 14 CFR43.5 (a), 14 CFR43.9 (a), 14 CFR 43.9 (d), 14 CFR43.13 (a), and 14 CFR 43.13 (b) (7/31/13 Complaint, 4-5). Page 3 of21See, Scott v. Harris, 5550 US 372, 380 (2007); LibertyLobbyInc., 477 US at 248, Holcomb, 433 F.3d at 895.
On a motion for summaryjudgment, all evidence and inferences are to be viewed in light most favorable to non-moving party. However, a non-moving party (e.g., the Respondent herein answering the FAA's Motion) may not rest upon mere denials or allegations in the pleadings. Pursuantto Civ. 

### R. 56(c), (d), and (e), a non-moving party who wishes to proceed to trial must respond to the motion for summaryjudgment, and set forth specific facts sufficient to showthere is a genuine issue for trial. Celotex Corp. v. Catrett, 477 US 317, 324, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986). See also, Citizens State Bankof BigLake v. Transamerica Ins. Co., 815 F.Supp. 309 (D. Minn. 1993). See also, Steven Baicker-McKee, et.al, Federal CivilRules Handbook, West Publishing (2012)(Rule 56)(a non-moving party may produce materials, and/or cite to materials produced or notproduced by the movant in resisting the summaryjudgment motion).
Pursuantto Civ. 

### R. 56 (c)(1)(A), specific facts alleged by eitherparty may be asserted by submitting or citing to a variety ofdocuments and declarations. Materials submitted during summaryjudgmentproceedings must be capable ofbeing offered attrial in an admissible form. See, Steven Baicker-McKee, et.al, Federal Civil Rules Handbook, West Publishing (2012)(Rule 56). Once the moving party has established a prima facie case, the burden shifts to the nonmoving party to show, by affidavit or otherwise, that a genuine dispute ofmaterial fact remains for the fact-finder to resolve. (ld). On a summaryjudgment motion, the court does notrule onthe weight ofthe evidence. See, Steven Baicker-McKee, et.al, Federal CivilRules Handbook, West Publishing (2012)(Rule 56). (The courtnever weighs the evidence, evaluates credibility ormakes findings on disputed facts in summaryjudgmentproceedings). 

### D. Admissibility ofFAA's SummaryJudgmentFactual Proof As part ofits August 15,2013 Motion for Summary Judgment, the FAA submitted thirty-four (34) Exhibits, identified as FAA Exhibits A-Z, and AA-HH. OnFebruary 20, 2014, priorto the summaryjudgmentmotion conference, the FAA submitted a Reply, with one (1) additional exhibit, identified as ExhibitJJ.
Page 4 of21Atthe February 27, 2014 motion conference, the Respondent did not object to the admissibility ofany ofthe FAA's summaryjudgmentexhibits. On March 5, 2014, the FAA re-submitted legible copies ofExhibits D-P and BB. The FAA also submitted one (1) supplemental exhibit, identified as Exhibit KK. The Respondent did not object to the admissibility ofthe FAA's Supp. Exh. KK.

• FAA Exhibits B, C, R, DD, EE, FF, GG, HH, and JJ are admissible as testimonial evidence.
• All other FAA Exhibits are admissible as documentary evidence All thirty-six (36) FAA Exhibits are deemed admissible for s'ummaryjudgment consideration.
E. Admissibility ofRespondent's Summary Judgment Factual Proof As part ofits January 31,2014 Response, the Respondent submitted twenty-four (24) Exhibits, identified as Respondent Exhibits A, A-1, and B-W. OnFebruary 27,2014 the FAA did not objectto the admissibility ofmost ofthe Respondent's summaryjudgmentexhibits, reserving its prior objection the expert opinions of Mr. Fowler, Mr. Underwood, and Mr. Schneider, about which ithad submitted a Motion to Exclude. 3 On March 6, 2014, the Respondent submitted two (2) supplemental, unmarked exhibits, which are hereby marked bythe court as Respondent Exhibits X (i.e., FAA Advisory Circular No. 120-16E) andY (i.e., FAA Advisory CircularNo. 120-16F). The FAAdid not file any objectionto the admissibility ofRespondentExhs. X or Y.

• Respondent Exhibits A, B, D, E, F, H, I, J, K, L, M, P, V, and Ware admissible as testimonial evidence.
• All other Respondent Exhibits are admissible as documentary evidence All twenty-six (26) Respondent Exhibits are deemed admissible for summaryjudgment consideration.

3 The FAA's Motion to Exclude was addressed in the March 28, 2014 an OrderGranting Relief, butDenyingthe FAA's Motion to Exclude ExpertTestimony. Page 5 of21F. Applicable Regulatory Definitions Pursuant to Section 1.1 ofthe Federal Aviation Regulations (Definitions) the following definitions are applicable: 1. Maintenance means inspection, overhaul, repair, preservation, and the replacement of parts, but excludes preventative maintenance. · 2. Preventative Maintenance means simple or minor preservation operations and the replacement ofsmall standard parts not involving complex assembly operations. 3

.. Major Alteration means' an alteration not listed in the aircraft, aircraft engine, or propeller specifications

-- (1) That might appreciably affect weight, balance, structural strength, performance, powerplant operation, flight characteristics, orother qualities affecting airworthiness; or (2) That is not done according to accepted practices orcannot.be done by elementary operations

.. 4. Major Repair means a repair: (1) That, ifimproperly done, might appreciably affect weight, balance, structural strength, performance, powerplant operation, flight characteristics, or other qualities affecting airworthiness; or (2) That is not done according to accepted practices or cannot be done by elementary operations. 5. Minor Alteration means an alteration other than a major alteration. 6. Minor Repair means a repair other than a majorrepair.

G. Dictionary Definitions The Federal Aviation Regulations ("FARs") do notprovide a definition for the adverb "appreciably," which is contained inboththe FARs major alteration and majorrepair definitions. Webster's Third New International Dictionary ofthe English Language, Unabridged, G. & C. Merriam Company (1976) provides a common definition for both the verb and the adverb form. Appreciable: Capable ofbeing perceived and recognized orbeing weighed and appraised. Appreciably: To an appreciable extent or degree: noticeably.
In addition, the FARs do not provide a definition for the words "airworthiness" or "airworthy." The dictionary definitions are: Airworthiness: The quality or state ofbeing airworthy. Airworthy: Fit for operation in the air: able to bearthe strains offlight and to withstand Page 6 of21storms. 

### (Webster's, 1976).

H. Identification ofMajor Alterations/Major Repairs in the FARs Appendix A to Part43 ofthe PARs addresses major alterations, majorrepairs, and preventative maintenance. Appendix A (a)(l) states that major alterations to an airframe, when not listed in the aircraft specifications, include the following: (iii) Fuselage.
(xi) Changes to the empty weight orempty balance whichresult in anincrease inthe maximum certificated weight orcenter ofgravity limits ofthe aircraft. (xii) Changes to the basic design ofthe fuel.

..systems." (xiii) Changes to the wing orto fixed ormovable control surfaces which affect flutter and vibration characteristics.
Appendix A (b)(1) a1so identifies majorrepairs to an airframe, when suchrepairs involve the aircraft's "primary structural members ortheir replacements." I. BriefDiscussion ofViolations and Counts The FAA is charging 8 separate regulatory violations, witha total of37 counts. In the discussion inthis section, whentwo counts are identified, the FAAhas asserted that suchcounts occurred onFebruary 24, 2011 and on June 12-13, 2011. All admissible evidence was considered, but only highlights ofcertain disputes are discussed herein. As part ofits argument for summaryjudgment, the FAA asserted that ithadpresented multiple declarations from a variety ofmaintenance experts while the Respondent offered only "lay"testimony inresponse. (Reply, 1). This argument was notpersuasive, giventhe fact that bothparties had mistakenly mischaracterized some ofthe Respondent's witnesses' testimony as "lay." 4 In reality, the Respondent did present multiple expert opinions inresponse tothe FAA's Motion.

4 This dispute was addressed in the March 28,2014 Order Granting Relief, but Denyingthe FAA's Motion to Exclude Expert Testimony. Page 7 of21Bothparties agreed that neither the removable bladder fuel tanks, northe aluminum

. shells, were

## astructural component ofthe B-17 aircraft. (R Exh. M, para. 14; FAA Exh. JJ, para. 14). Both agreed that the B-17 was a limited issue military aircraft, and that that the manufacturer had issued one B-17 Handbook to cover all the B-17 "series" aircraft made during the time period surrounding World War II. (R Exh. N, para. 14; FAA Exh. U). Both agreedthat the B-17 Handbook authorized welding as a repair onnon-structural aircraft components in certain circumstances. (RExh. N, 240-242; FAA Exh. JJ, para. 14). The major disagreement between the parties was whether the maintenance performedby the Respondent onFebruary 24,2011 rose to the level ofa major alteration, requiring FAA approval and inspection before the aircraft was returned to service. This major dispute is contained in every count charged against the Respondent herein. The FAA witnesses opined, among other things, that the permanentremoval ofthe nonstructural bladdertanks from the aluminum fuel tank shells was a change in the B-17's type certification. This was not supported by the evidence, since the B-17'stype certification did not include any reference to the bladder fuel tank system. The FAA witnesses opined that thatthe BFebruary 24, 2011 maintenance onthe fuel tanks changedthe B-17'stype design. There was conflicting testimonial and documentary evidence submitted on this point. For example, there was only one B-17 Handbook published, which addressed the
common aircraft design for several different series ofB-17 aircraft. The Respondent also pointed out that Mr; Duellman, an FAAwitness, had agreed in a 2012 deposition thatthe B-17's fuel tanks remained fuel tanks after the February 24, 2011 maintenance. Mr. Duellman had also agreed during his 2012 deposition that some late model B-17s had gotten "rid ofthe self-sealing tanks and wentbackto a metal tank." (FAA Exh. JJ, para. 8 and 10; Response, 18; R Exh. 

### J, 2). The FAA witnesses also opined that when the Respondent welded fittings and closures onto the aluminum fuel tarik shells, the B-17's type design was changed, which could have had
an "appreciable effect" onthe B-17's airworthiness. (FAA Exh. JJ, para. 14). The FAA witnesses opined that the B-17's destruction by fire on June 13, 2011 demonstrated that itwas not airworthy. Thus, the February 24, 2011 maintenance was a major alteration (or inthe alternative, a majorrepair). In response, the Respondentpointed outthat welding was specifically permitted as part ofthe B-17's maintenance on non-structural components. The basic design ofthe B-17 aircraft. Page 8 of21had not changed by removing the bladders, since the aluminum fuel tank shells remained onthe aircraft, and still functioned as fuel tanks.5 In addition, the Respondent argued that the FAA's assertions ofnon-airworthiness were speculative, and not supported by the evidence. The FAA witnesses opined that the Respondent's welding work had been flawed, and had not been performed in compliance with industry standards. The welding failed, as evidencedby the June 12, 2011 weld crack and fuel leak. The June 12, 2011 repair to the weld crack was also flawed, because during the flight the B-17 took on June 13, 2011, a fire started and the aircraft
was ultimately destroyed. In response, the Respondentpresented opinion evidencethatthe February 24, 2011 welding, and the June 12, 2011 weld crack repair, hadbeen done incompliance with aviation industry standards, utilizing industry accepted materials. Welding was specifically permitted on the B-17 as part ofits maintenance. A weld expert also opined that there was no evidence to supportthe FAA's deductive assertion that the February 24, 2011 welding, orthe June 12, 2011 maintenance repair to the weld crack, had failed and caused the June 13, 2011 airplane fire and destruction. In viewing the evidence and inferences in light most favorable to non-moving party, the Respondent presented sufficient facts to support a finding that there are genuine disputes, supported by material facts, that exist between the**p~ies.** A few othermatters, that are violation specific, are discussed brieflybelow.

1. ViolationNo. 1 - 14 C.F.R. §91.405 (b): two counts According to 14 C.F.R. §91.405(b), the Respondent, a Part 91 owner/operator, is required to ensure that maintenance personnel working on its aircraft make appropriate entries inthe aircraft maintenance record indicating that the aircraft has been approved for return to service. The regulation does not specifically describe what constitutes an "appropriate" narrative entry. Pursuant to 14 CFR 

### § 91.407 (a), the maintenance record must be made before the aircraft as \ ' flown. Count 1: It is undisputed that Mr. Rodney Schneidermade a log entry on February 24, 2011 afterthe B-17 fuel tankmaintenance was finished, and before the aircraft was flown. He

5 It shouldbe noted that as part ofthis argument, the Respondent argued that Appendix A in Part43 clearly required, ' on its face, that more than one change to the basic design ofthe fuel system had to occurbefore the changes rose to

the level ofa major alteration. (App. A (a)(l)(xii); Response, 13-14). This argument is not addressed herein. Page 9 of21approved the B-17 to returnto service. The FAA asserts that Mr. Schneider's February 24, 2011log entry was inaccurate, and therefore inappropriate. According to the FAA, this log entry failed to fully identify the maintenance workperformed. Mr. Schneider failed to identify thatthe work was a majorrepair
or alteration the fuel tanks.6 In response, the Respondent asserts that Mr. Schneider's February 24, 2011log entry was appropriate. Itgenerally described the. workperformed, and conformed to the requirements of 14 C.F.R. §43.9 (a)(l-4). The Respondent also reiterated its positionthatthe removal ofthe nonstructural bladderfuel tanks and the subsequent welding ofthe aluminum shells was not a major repair or alteration. , Count2: The FAA asserts that Mr. Schneider did not make 

### any entries inthe B-17's maintenance record before approving it for return to service onJune 13, 2011. 7 In response, both Mr. Schneider and Mr. Hess testified that Mr. Schneider made a maintenance discrepancy log entrybefore the B-17 took offfrom the landing strip onJune 13, 2011. In addition, a second log entry was made onJune 14, 2011 to address the June 13, 2011 approval to service.

2. ViolationNo.2- 14 C.F.R. 

### § 91.407 (a): thirteen counts According to 14 C.F.R. §91.407(a), the Respondent, a Part 91 owner/operator, may not operate any aircraft after ithas undergone maintenance,8 unless such aircraft has been approved to return to service: (1) by a person authorized under 14 C.F.R. 

### § 43.7 and (2) the maintenance recordrequired by 14C.F.R. 

### §43.9 or 14 C.F.R. 

### §43.11 has been made. Itwas undisputed that Mr. Schneider's A & P mechanic rating authorized himto make certain maintenance record entries and approve aircraft to returnto service under 14 C.F.R. 

### § 43.9. Mr. Schneider was not authorized, however, to perform aircraft inspections**un~er** 14 C.F.R. 

### §4 3.11. Itwas also undisputedthat an aircraft inspection is required anytime a major

6 The FAA also asserts that Mr. Schneider didnothave the authority orthe certification to returnthe aircraft service, because his A & P rating did not qualify him to return aircraft to service after a majorrepair or alteration. This allegation is addressed in multiple violations charged herein againstthe Respondent.

7 It appears undisputed that Mr. Schneider also made a log entry on June 14, 2011 for the maintenance, after the B17 was destroyed by fire, and back-datedthe log entry to reflect the date ofJune 13, 2011.

8 Pursuantto 14 C.F.R. 91.407(a), the word "maintenance" includes "preventative maintenance, rebuilding, or alteration." Page 10of21alteration or majorrepairhas beenmade to an aircraft. Counts 1-13: As noted in ViolationNo. 1herein, the FAA and the Respondent dispute the scope and characterization ofthe maintenance performed onthe B-17 fuel tanks onFebruary 24, 2011. As a result, the FAA asserts that Mr. Schneider did nothave the authority to (1) approve the B-17 for return to service, and (2) did not have the ability to make the necessary maintenance record. In addition, the FAA a.Sserts that the Respondent operatedthe B-17 on "more than 12 flights" between February 24, 2011 and June 13, 2011, after the B-17 had undergone a major alteration (or, in the alternative, a majorrepair) (Am'd Complaint, p.11). Pursuant to 14 C.F.R. §12.209(e), the Respondent specifically denied this allegation in its entirety. (RAnswer, 11). The FAA acknowledged this denial, but then claimed that there was a "lack ofdispute" about its accusation that the B-17 was flown at least 13 times (FAA Supp. Motion, 1 ). Based onthe summaryjudgmentmaterials, it is undisputed that the Respondent operated the B-17 in flight at least once during the time frame in question- on June 13, 2011

- and the B-17 was completely destroyed by fire at the conclusion ofthe flight. There is no further proofstipulated to by the parties, or submitted by the FAA, as to the dates/times/locations ofthe other alleged 12 flights. The FAA did submit two separate B-17 log entries, showing a total of 105 ACTT flight hours accrued by the B-17 betweenthe dates ofFebruary 24, 2011 and June 13, 2011. However,
no witness for either side contendsthat such information, standing alone, can lead the trier offact to the reasonable conclusionthat "morethan 12 flights" occurred. Inits supplemental materials, the FAA submitted the Respondent's discovery response to FAA Interrogatory 15, in whichthe Respondent did not affirmatively defend against the allegation ofthe thirteen flights (FAA Supp. Exh. KK). The FAA argued thatthis**interrog~tory** response should be characterized as a factualadmission bythe Respondent that the alleged 13 flights all occurred (dates/times/locations unknown). The FAA did not pointto any authority that supports this argument regarding the interrogatory response. Pursuantto 14 C.F.R. §13.224(a), the FAA still has the burden ofproofinpresenting evidence in support ofits allegations, before the Respondent is required to respond.

Page 11 ofZl3. Violation No.3- 14 C.F.R. §91.7 (a): thirteen counts According to 14 C.F.R. §91.7(a), the Respondent, a Part 91 owner/operator, may not operate any civil aircraft unless the aircraft is in an airworthy condition. Counts 1-13: As noted above in Violation No.2, the FAA asserts that the Respondent operated the B-17 on "morethan 12 flights" between February 24, 2011 and June 13, 2011, after the B-17 had undergone a major alteration (or, in the alternative, a major repair), and before it
was approved as airworthy by the Administrator. (Am'd Complaint). As discussed in Violation No.2, supra, the FAA has not yet proventhe number offlights. As part ofViolationNo.3, the FAA witnesses opinedthatthe February 24, 2011 maintenance was not in conformance with the B-17's type design or type certificate. In addition, the B-17 was never airworthy after February 24, 2011. The fuel tank weldperformed on February 24, 2011 failed, because a fuel leak and weld crack was discovered onJune 12, 2011. The repair to the weld crackon June 12, 2011 failed, and as a result ofthe weld failures, the B17 was destroyed onJune 13, 2011. In response, the Respondent witnesses and documents asserted that the February 24, 2011 maintenance ensured that the B-17's design remained intact. There was no direct evidence that the February 24, 2011 maintenance was the cause that rendered the aircraft airworthy. In fact, there was evidence to**s~ow** that the fuel tank weld performed onFebruary 24, 2011, and its repair on Jun 12, 2011, had bothbeenproperly performed. There was no evidence to demonstrate that the welding contributedto the fire and destruction ofthe B-17.

4. Violation No.4- 14 C.F.R. §43.5 (a): one count According to 14 C.F.R. § 91.407(a), the Respondent, a Part 91 owner/operator, may not allow any aircraft to be operated after it has undergone maintenance,9 unless the aircraft has been approved to return to service: (1) by a person authorized under 14 C.F.R. 

### § 43.7 and (2) the maintenance record has beenmade as required by 14 C.F.R. 

### §43.9 or 14 C.F.R. 

### § 43.11. During the February 27, 2014 motion conference, the FAA identified this count as relating solelyto the June 12, 2011 weld crack repair. The FAA arguedthatMr. Schneider improperly approved the B-17 for service after the weld crack repair, because a maintenance

9 Pursuant to 14 C.F.R. 91.407(a), the word "maintenance" includes ''preventative maintenance, rebuilding, or alteration." Page 12 of21inspection and record pursuant to 14 C.P.R. §43.11 was required, and Mr. Schneider did not have the authority to approve an aircraft for service under 14 C.P.R. §43.11. Bothparties reiterated their arguments regarding Mr.**Schn~ider's** work, and the scope/type ofthe maintenance performed onthe aircraft.

5. ViolationNo.5- 14 C.P.R.§ 43.9 (a); two counts According to 14 C.P.R.§ 43.9 (a), each person who maintains, performs maintenance, rebuilds or alters an aircraft or componentpart, shall make an entry inthe maintenance record of that equipmentpart (except as providedbyparagraphs (b) and (c)). In this violation, the FAA asserts that Mr. Schneider's February 24,2011 maintenance entry failed to accurately describe the maintenance on the fuel tanks, andthat he failed to make a proper maintenance record on June 13,2011. The Respondent disagreed. Bothparties reiterated their arguments regarding Mr. Schneider's work, and the scope/type ofthe maintenance performed onthe aircraft.

6. ViolationNo.6- 14 C.P.R. §43.9 (d): two counts According to 14 C.F.R. § 43.9 (d), in addition to the entry provided by 14 C.P.R.§ 43.9 (a) (i.e., Violation No. 5), the personperforming maintenance work that is a major alteration or majorrepair shall enteredthe work on a form (i.e., FAA Form 337), and in a manner prescribed by Appendix B. Again, the FAA asserts that the February 24, 2011 fuel tank maintenance was a major alteration (or in the alternative, major repair) that required FAA Form 337 to be filled out and filed. The FAA also argued that the June 12 2011 repair to the fuel tanks was a major alteration and a violation ofthis regulation, because "the fuel tanks themselves were unacceptable." (FAA Exh. GG, 6). In response, the Respondent doesn't dispute that FAA Form 337 wasn't used. The Respondent reiterated its arguments that the February 24, 2011 fuel tank maintenance did not meet the definition ofa major alteration or major repair, and that Mr. Schneider's work onJune 12-13,2011 met all FARrequirements.

Page 13 of21· 7. ViolationNo.7- 14 C.F.R.§ 43.13 (a): two counts According to 14 C.F.R.§ 43.13 (a), eachpersonperforming maintenance, alterations or previous maintenance on an aircraft shall,use the methods, techniques, and practices prescribed by the current manufacturer's maintenance manual orthe instructions for continued airworthiness prepared by its manufacturer, orother methods, techniques, and practices acceptable to the Administrator, except as noted in 14 C.F.R.§ 43.16. Bothparties reiterated their arguments regarding Mr. Schneider's work, andthe scope/type ofthe maintenance performed on the aircraft.

8. ViolationNo.8- 14 C.F.R. §43.13 (b): two counts According to 14 C.F.R. § 43.13 (b), eachperson maintaining or altering orperforming previous maintenance shall do that work in such a manner and use materials ofsuch a quality thatthe condition ofthe aircraft worked onwill be at least equal to its original orproperly altered condition (with regard to aerodynamic function, structural strength, resistance to vibration and deterioration, and other qualities affecting airworthiness). The FAA asserts thatthe maintenance performed onFebruary 24, 2011 and onJune 12, 2011 did not restore the B-17 aircraft to its original condition nor did it restore the B-17 to its properly altered condition. In response, the Respondent reiterated that the bladdertanks were not a structural component ofthe B-17, and the design ofthe aluminum fuel tank shells orthe function ofthe fuel tanks shells had not been appreciably changed.


### J. Declaring as Established Certain Undisputed Facts Pursuant to 14 C.F.R. §13.218(±)(5) and Civ. R. 56, in viewing all evidence submittedby the parties in summaryjudgmentproceedings, the court may declare certain material facts, that
are not genuinely disputed, as fully established. This declaration ofestablished facts allows the parties to focus on matters in genuine dispute at the hearing. Absent objectionby eitherparty, the following undisputed facts are declared as established in this case: 1. The Respondent, Liberty Foundation, Inc. is a non-profit foundation. It holds an FAA Part 91 aircraft carrier certificate. Itwas the registered owner ofa Boeing B-17G, registered as N390TH, and bearing Serial No. 44-85734,("B-17"). (7/18/12 Answer, 1.1). Page 14of21The B-17 was a military World War II bomber aircraft. Its name was the "LibertyBelle." (RExh. B, 35 and 41; R Exh. Q). 2. The B-17's December 2, 1946 Specification Sheet is the Type Certification ("Type Cert.") for the aircraft. (RExh. Q; FAA Exh. 

### JJ, 27). ' 3. The B-17'sType Cert. specified only engines and propellers as equipment. (R Exh. Q). 4. OnAugust 8, 1952 a Revised Aircraft Parts Catalog was issued for the B-17, which included schematics ofthe aircraft's wing fuel tanks, and fuel system (FAA Exh. S, 48- 49, 312). 5. OnAugust 15, 1953, a Revised Handbook Erection and Maintenance Instructions was issued for the B-170 Series Aircraft. This Handbook included schematics and data about the B-17's fuel system, which included the maintanks, the feeder tanks, and the outboard wingtanks (i.e., Tokyo tanks). (FAA Exh. T, 194-207). 6. OnAugust 15, 1956 a Revised Handbook Structural Repair Instructions ("B-17 1956 Handbook") was issued for the B-17 Series Aircraft, which included B-17 Aircraft identified as B-17E, F, 0, RB-17E and QB-170

.. (FAA Exh. U; R Exh. N). 7. OnMay 3, 2005 the FAA issued a Limited Airworthiness Certificate for the B-17. (R Exh. R).
' 8. OnJune 20,2010 the FAA issued the Respondent ExemptionNo. 8565C, which was an amendmentto ExemptionNo. 8565. (RExh. T). Inthis June 20,2010 Amendment, the FAA reiterated thatthe Respondent must maintain the B-17 in accordance with the following: (a) the B-17's type certificate data sheet,

## as amended; (b) FAA-approved maintenance inspectionprogram that meets the requirements of§ 91.409(c), (f)(4) and (g); and (c) the appropriate military technical manuals. (RExh. T). 9. In 2011 the Respondent operatedthe B-17 as part ofits "flyingmuseum." (RExhibit B, 24; R Exh. D, 11). The B-17 was required to be maintained in accordance with FAA exemption 8565C. (7/18/12 Answer, 1.2). 10. Mr. Raymond Fowlerhad served as the Respondent's Executive Director since its inception in 2004. He was the Respondent's "self-proclaimed" ChiefPilot. (RExh. B, 6). 11. FAAAdvisory Circular ("AC") No. 120-16E requires Part 91 owners/operators to be "responsible for maintainingthe aircraft in an airworthy condition." (R Supp. Exh. X). 12. In either the year 2008 or 2009, Mr. Rodney Schneider beganvolunteering as a mechanic onthe Respondent's B-17 aircraft. (RExhibitA, 6). Ultimately, in October 2010, Mr. Schneiderbegan serving as the Respondent's volunteer Director ofMaintenance. (RExh. A, 7-8; R Exh. B, 42-43; R Exh. V, 1).

Page 15 of2113. As a Part 91 operator, the Respondent was notrequired to have a director ofmaintenance. (R Exh. V, 1). 14. Whenthe Respondent originally certifiedthe B-17 (date unspecified), the B-17 was given a modified fuel system. (RExh. D, 13).Thismodification to the fuel system, which involved removing all the unused fuel transfer lines, had been a major alteration. (RExh. B, 24-25; R Exh. D, 13). 15. The B-17's original designutilized a removable, bladder fuel tank)system. This original systemhad an aluminum fuel tank "shell"that encased self-sealing, bladder fuel tanks, which were held withinthe shell by straps. (R Exh. B, 20; FAAExh. 

### JJ, 6). Neitherthe removable bladder fuel tanks, northe aluminum shells, were a structural component of theB-17 aircraft. (RExh. M, para. 14; FAA Exh. JJ, para. 14). 16. Overtime (unspecified) the removable bladdertank system appeared to deteriorate, because the bladders were "slower and slowerto sump." (RExh. B, 7). The Respondent decided to replace the bladdertank system for safety reasons, because it didn't wantto have any contamination inthe fuel. (RExh. B, 7). 17. During the latterpart ofthe year 2010, Mr. Fowler engaged inmultiple discussions with various individuals onhowto replace the bladdertank system with an aluminum system. (RExh. B, 7-9). One option was to fabricate newfuel tanks from scratch. (RExh. B, 29- 30). The Respondent "wrote a check" to a Designated Air Representative ("DAR") (individual unidentified) for approval ofthe schematics. (RExh. B, 13 and 30). Onbehalf ofthe Respondent, 

### Mr. Underwood talked with, and sent documents to, the DAR about the fuel tankproblem. (RExh. B, 16-17). The DARthen sent the Respondent "paperwork" regarding the B-17's fuel tanks. (R Exh. B, 13). 18. Welding a fuel tank onthe B-17waspermissible "under appropriate circumstances." (R Exh. M, para. 14). However,

### pur~uant to FAA Order 8900.1, any change in a permanent fuel tank, orinstallation ofa new fuel tank, was deemed a major alteration. (RExh. M, para.14). 19. At some pointin Mr. Fowler's 2010-2011 discussions, the Respondent decided that it was betterto keep the original aluminum shells thento fabricate newtanks, because of the shells' type andthickness ofa1uminum. (R Exh. B, 30-31). Cost was not a factor in the Respondent's decisionto keep the aluminum shells. (RExh. B, 30-31). 20. Mr. Underwood did research to discover whatthe B-17 fuel tanks were made of, and "whatwouldbe the appropriate welding materials to use." (RExh. A, 30). Mr. Underwood utilized a set ofBoeing B-17 drawings and engineering prints to determine thatthe fuel tanks were made in 1100 series aluminum. (RExh. A, 38; R Exh. F, 2). The original aluminum designation for the 1100 serieswas 2S. (RExh. D, 2; R Exh. D, 2).

Page 16of2121. Mr. Underwood participated in conversations with personnel ofCobb industrial fabricators ofMarietta Georgiato discuss the welding needed for the February 24, 2011 aircraft maintenance work. (R Exh. F, 1). 22. During the 2010-2011 discussions, and before beginning the February 24, 2011 maintenance, Mr. Fowler, the Respondent, and various otherRespondent members and volunteers formed the beliefthat changing the bladder fuel tanks to aluminum fuel tanks was not a major alteration. The Respondent and others believed that this type ofchange did not alterthe B-17's basic fuel tank design. (R Exh. B, 13-14, and 22). 23. FAA Advisory Circular ("AC") No. 120-16Erequires Part 91 owners/operators to be "responsible for maintaining the aircraft in an airworthy condition." (RExh. X). 24. FAA AC No. 120-16E requires that "authorized and certificated person(s)" have the "responsibilityto perform the maintenance properly in accordance with the manufacturer's manual." The Part 91 owner/operator "does not have this responsibility." (RExh. X) 25. Inpreparation for the February 24, 2011 maintenance work, Mr. Schneiderread FAA's Advisory Circular ("AC") 43.13, Sections 8-32. (RExh. A, 36). 26. FAAAC No. 43.13 contains "methods, techniques, andpractices acceptable to the Administrator for the inspection and repair ofnon-pressurized areas ofcivil aircraft, only whenthere are no manufacturer repair ormaintenance instructions." (RExh. 

### 0, "Purpose"). 27. Mr. Schneider also reviewed the B-17 maintenance manual, the field service manual and the structural repair manual. He couldnot find any description ofthe work that he planned to perform onthe aircraft on February 24, 2011. (R Exh. A, 36). 28. The data in FAA AC No 43.13 "generally pertain[ed] to minorrepairs." It could also be utilized "as a basis for FAA approval for major repairs." (RExh. 

### 0, "Purpose"). Under certain conditions, the data inFAA AC No. 43.13 could also be used as "approved data" in conjunction with FAA form 337. 

### (Id.). 29. On or about February 24, 2011, Mr. Schneider and Mr. Underwood, as well as five (5) other Respondent volunteers, performed maintenance work onN390TH, the B-17 aircraft. (RExh. A, 23 and 39). This work included removing the bladder linings from six (6) fuel tanks, welding up the tanks after the bladderremovals, adding fittings to the tanks in order to mountvarious components back on, and then reinstalling the fuel tanks onto the aircraft. (RExh. A, 17). 30. Whenthe February 24,2011 maintenance work was performed, Mr. Fowler was present and was briefed onthe mechanical work that was being done. (R Exh. B, 19).

Page 17 of2131. Although Mr. Schneider was present for the February 24, 2011 welding, he did not perform any welding onthe aircraft. (RExh. A, 24). 32. The February 24, 2011 welding was performed by employees ofCobb Industrial Fabricators. (RExh. A, 27-28; R Exhibit P, 1). All welding was done using the TIG method ofwelding. The filler rod was 4043. The fittings were made from 6061 aluminum. (RExh. 

### D? 2). 33. Pursuantto FAA AC 43.13, Tungsten Inert Gas ("TIG") welding was a form ofelectric arc welding that filled "most ofthe needs in aircraft maintenance." (RExh. 

### 0, p. 4-57). 34. Electric arc welding was also described in the B-17'srevised, 1956 Handbook: Structural Repair Instructions ("B-17 Handbook") as one oftwo welding methods allowed. (RExh. N, p. 241). 35. The August 15, 1956 B-17 Handbook stated that "welding ofstructural aluminum-alloy parts is'prohibited. All-stress-approved applications ofwelding are discussed in section IV. Other repairs requiring welds probably will not return the full strength ofthe original part. Therefore, welding ofmembers other than described in section IV is to be considered as an extreme emergency operation and cannotbe recommended for permanent repairs. Great care must be taken that the welding process does not further weaken the partrather than strengthen it." (R Exh. N, p. 240-241). 36. The Table ofContents ofthe B-17 Handbook identified Section IV as the "Nacelle" of the B-17 aircraft. Sub-sections ofSection IV addressed negligible, reparable, and replacement damage to the Nacelle. (R Exh. N). 37. Pursuantto FAA AC 43.13, "welded orriveted fuel tanks that are made ofcommercially pure aluminum, 3003, 5052, or similar alloys, may be repaired by welding." In addition, FAA AC 43.13 provides that "[i] n case it is necessary to rivet a newpiece in

### atank, use the same material as used in the tank undergoing repair, and seal the seams with a compound that is insoluble in gasoline." (R Exh. 

### 0,p. 8-19) 38. After the February 24, 2011 welding on the fuel tanks was finished, Mr. Schneider visually inspected and approved it. (R Exh. A, 24-25). In addition, the tanks were filled with fuel to visually verify any possible leaks. (RExh. D, 2). 39. FAA AC No. 120-16E requires that the Part 91 owner/operator be "responsible for ensuring maintenance personnel make appropriate entries in the aircraft maintenance records indicating the aircraft has received approval for return to service." (RExh. X). 40. Typically, after maintenance has been performed on an aircraft and before it is released to fly, the mechanic who has performedthe maintenance will fill out and sign the aircraft's discrepancy log. Thenthat maintenance information is provided to the person who maintains the aircraft's log books, and logbook entries are also made. (R Exh. B, 36).

Page 18 of2141. During the February 24, 2011 maintenance, Mr. Schneider spoke withthe "two Daves," about the changes made to the B-17's fuel tanks [time ofconversation unspecified]. The "two Daves" referred to Dave Miller and Dave Alderman, FAA maintenance inspectors who also volunteered withthe Respondent. Mr. Schneider spoke with the "two Daves" after the B-17'sbladder linings had beenremoved and the tanks had been "welded up", butbefore the tanks had been re-installed onthe aircraft. (RExhibit A, 14-15). Both Mr. Fowler and Mr. Schneiderparticipated in this telephone conference. (RExh. A, 17). Mr. Schneider calledthe "two Daves" because he wanted advice onhowto fill outthe maintenance paperwork in order to get "asignoffdone properly." (RExh. A, 14:25-15:1. 20-21, and 17:2-5). 42. OnFebruary 24, 2011, after completion ofthe fuel tank maintenance, Mr. Schneider completed a log book entry in the discrepancy log bookmaintained inthe aircraft. (R Exh. D, 1). Mr. Schneider approved the B-17 for return to service with an aircraft total time of2474.7 hours. (7/18/12 Answer, 2.8). 43. Approximately 14 weeks later, on Sunday, June 12, 2011, the main fuel tank ofthe B-17 was discovered to be leaking. (R Exhibit A, 40 and 46). ). This main fuel tank, located on the left wing, was designated on the B-17 as the "No. 1"fuel tank. (RExh. A, 41). 44. On Sunday, June 12, 2011, Mr; Schneider and Mr. Underwood flew to Aurora, Illinois to inspectthe airplane. They discovered a weld crack, onthe bottom edge ofthe main fuel tank's end cap, "roughly 5 inches long, maybe 6." (RExh. A, 40). This weld crack was in one ofthe "new" weld edges that had been welded onFebruary 24, 2011. (RExh. A, 41- 42). 45. Mr. Schneider and Mr. Underwood discussed this weld crackproblem with Mr. Hess and Mr. Giese, both ofwhom were A and 

### P mechanics and Respondent volunteers. Mr. Hess and Mr. Giese were present with the B-17 in Aurora, Illinois. All four men consulted the maintenance and field manuals, butthey could not find any B-17 manual directionthat addressed the weld crack problem. (R Exh. A, 44-45). 46. Applying a weld crack sealer internally would have giventhe weld repair "abetter chance ofsuccess." (RExhibit A, 49). However, this wouldhave requiredremoving the aluminum shell fuel tank from the aircraft, which would have taken more time. (RExh. A,49). 47. The Respondent hadpaying passengers scheduled at its next B-17 flight destination. (R Exh. A, 49-50). In orderto do thejob in a "good manner" and yet still stay on schedule withthetour, the Respondent elected to apply the weld seal from the outside, which did notrequire taking the time to remove the No. 1fuel tank from the aircraft. (RExh. A, 49). 48. Mr. Schneider and the others decided to fix the weld crack with a two-part fuel tank sealer, whichthey packed from the outside. (R Exh. A, 42-43). Mr. Schneider and the others finished the weld repair on Sunday evening, June 12, 2011, around 6:00pm. (R
Page 19 of21Exhibit A, 47; (7/18/12 Answer, 2.12). After the weld repair was finished, Mr. Schneider released the aircraft for service. (R Exh. A, 51). 49. At dinner with 

### Mr. Fowler that evening, Mr. Schneider discussed the weld repair. Mr. Fowlerhad also been in Aurora, Illinois, doing "P-40 rides that day.'' (RExh. A, 51). He had had "very little" involvement in the repair work discussions, because he had spent most ofthe day flying. (RExh. A, 51). 50. The next morning, onMonday, June 13,2011,the B-17 aircraft was fueled in the early morning. Ittook offfor an additional flight around 9:00am. (RExh. A, 47). That same day, onMonday, June 13, 2011, the B-17's flight ended after an in-flight fire and subsequent emergency offairport landing. (7/18/12 Answer, 1.17; R Exh. A, 46). Itwas undisputedthatthe plane caught fire and was destroyed. 51. The B-17's discrepancy log book, carried in the airplane, was destroyed inthe fire that destroyed the aircraft onJune 13, 2011. (R Exh. D, 1-2).

I 52. The following day, on Tuesday, June 14, 2011, Mr. Schneider called and spoke with Dave Miller about the June 12, 2011 repair and how "we should signthis off." (RExhibit A, 45-46). Mr. Schneiderthen made a log book entry for the Sunday, June 12, 2011 weld crack repair. (RExh. A, 43-46). This log entry, dated June 13,2011,referenced "4313-1- B, section 2, paragraph 832." (RExh. A, 45). Mr. Schneiderreadthis FAA AC reference before including it inhis logbook entry. (RExh. A, 46). 53. Approximatelytwo months later, on August 22, 2011, the FAA filed against Mr. Schneider an Emergency Order ofRevocation, in whichthe FAA revoked Mr. Schneider's airman and mechanics Certificate No. 002649010, with Airframe and Powerplant ratings. {FAA Exh. W, 1). 54. On January 31,2012,the FAA withdrew its August 22,2011 Emergency Order of Revocation against Mr. Schneider, and issued an Order ofSuspension. This Order suspended all ofMr. Schneider's airman mechanics certificates, including Certificate No. 002649010, with Airframe and Powerplantratings, from August 22, 2011 until May 17, 2012 (midnight). (FAA Exh. W, 6). 55. The FAA'sJanuary 31,2012 Order ofSuspension was issued as part ofan agreement and settlement reached with Mr. Schneider on January 30, 2012. As part ofthis agreement, Mr. Schneider agreed to withdraw his appeal to the National Transportation Safety Board, waive notice ofthe Order, and waive all rights to appeal orcontest the Order. (FAA Exh. W, 1 and 6). 56. The FAA'sJanuary 31,2012 Order ofSuspension found under Count 1that Mr. Schneiderhad violated 14 C.F.R. 43.13(a) and (b), and 14 C.F.R. 43. 9 (a) and (d). In support ofthe charges in Count 1, the Order made ten (10) findings offact regarding Mr. Schneider's February 24,2011 maintenance onthe Respondent's B-17 aircraft. (FAA Exh. W, 2-3 and 4-5).
Page 20of2157. The FAA'sJanuary 31,2012 Order ofSuspension addressed under Count 2 the maintenance performed onthe Respondent's B-17 aircraft onJune 10, 2011 that are not relevant to the issues inthe case herein. (FAA Exh. W, 3). 58. The FAA'sJanuary 31,2012 Order ofSuspension found under Count 3 that Mr. Schneiderhadviolated 14 C.F.R.§ 43.13(a) and (b). In support ofthe charges in Count 3, the Order made eight (8) findings offact regarding Mr. Schneider's June 13, 2011 maintenance on the Respondent's B-17 aircraft. (FAA Exh. W, 3). 59. The Respondent was not a party inthe FAA's January 30, 2012 settlement discussions or agreement with Mr. Schneider, nor was it a party involved in the FAA'sJanuary 31,2012 Order ofSuspension issued against Mr. Schneider. (FAA Exh. W). K. CONCLUSION
Pursuantto 14 C.F.R. §13.218(f)(5) and Civ. R. 56, all ofthe parties' admissible Exhibits
were considered, as well as the applicable pleadings and documents. After having heard oral argument onthe Motion, and having reviewing all relevant caselaw, decisions, regulations, statutory authority, motions, pleadings, and being fully advised;
IT IS HEREBY ORDERED:

1. The FAA's Motion for (Partial] Summary Judgment is denied. There are genuine issues ofmaterial fact in dispute regarding the 8 charged violations and 3 7 counts inthis case, and the FAA is not entitled tojudgment as a matter oflaw. 2. The Declared EstablishedUndisputed Facts in Paragraph J contained inthis Order are conclusively established for the Hearing, and for the disposition ofthis case, unless a party files a specific objectionto any declared fact, with supporting documentation, onor before April22, 2014 (the first day ofHearing). 3. The Hearing scheduled for April22, 2014- Apri124, 2014 in Atlanta, GA is hereby reconfirmed.

Attachment: Service List
Page 21 of21

## ... •

SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration1 0 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWright Building-Suite 2W1000

Mr. Christopher Stevenson Complainant's Counsel Office ofthe Regional Counsel P.O. Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Stuart A. Goldstein Respondent's Counsel Stuart A. Goldstein, P.A. 7300 North Kendall Drive, Suite 380 Miami, FL 33156 TEL: 305-670-1222 FAX: 305-400-0685
Judge J.E. Sullivan U 

### S. AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2142 FAX: 202-366-7536 ONE COPY FDMS No. FAA-2012-0477 (Civil Penalty Action)

10 Service was byU.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, DC 20591; Attention: HearingDocket Clerk, AGC-430.