RECEIVED 

'EPARTMENTOF BEFORE THE u.s. DEPARTMENT OF TRANSPORTATION ^^6 1 5 20)J 

• ASPORTATION The Honorable Chief Administrative Law Judge Ronnie A I 

- ' M OFERATIOMS 

iii I^E3 22 P 2U ^ 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines 

Respondent 

'HgARING DOCKET 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

ANSWER to the COMPLAINANT'S MOTION 

FOR DECISION 

The Respondent, Brendan Airways, LLC d/b/a USA3000 Airlines [hereinafter "USA3000"] 

hereby responds to the Motion for Decision and REQUESTS that the Administrative Law Judge 

DENY the Administrator's Motion for Decision. 

Table of Contents 

Table of Contents 1 

Summary of the Case 3 

Facts 4 

1. The Administrator Cannot Draw a Factual/Causal Link Between Any Improper 

Maintenance and the Deactivation of the Spoilers 4 

2. The Administrator's Own Investigation Showed that There Was No Evidence of Improper 

Maintenance 5 

3. The Part 91 Issues Were Fully Litigated by the Administrator in Babbitt v. Surratt, and the 

Board Rejected the Administrator's Claims of 91.7 and 91.13 Violations 6 

Standard of Proof 7 

Argument 8 

I. The Administrator Fails to Meet His Burden Concerning the 14 C.F.R. § 91.7 Allegations..8 

a. There is a Knowledge Element to 14 C.F.R. § 91.7 Cases 9 

b. The Pilots of the Flight Were the Relevant Agents for Purposes of Testing Knowledgell 

c. It Was Previously Decided that there was Insufficient Knowledge to Support a 91.7 

Allegation, and under the Doctrine of Collateral Estoppel the Lack of Knowledge Supporting 

a 91.7 Allegation Applies In Our Case as Well 12 

i. The Issue Decided in the Prior Proceeding is Identical With the Issue Presented in 

the Second 13 

RESPONDENT'S ANSWER to the Washington Aviation Group, PC and the 

COMPLAINANT'S MOTION FOR DECISION Law Offices of Jason A. Dickstein 

Page 1 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
ii. The Party Against Whom Collateral Estoppel is Asserted Was a Party in the Prior 

Litigation 14 

iii. The Prior Adjudication Ended in a Final Judgment on the Merits 14 

iv. The Administrator (the Party Against Whom the Doctrine is Asserted) Had a Fair 

Opportunity to Litigate the Issue Because the Administrator was a Party to the Prior 

Litigation 15 

V. Under the Doctrine of Collateral Estoppel, the Administrator is Estopped from 

Relitigating the Issue of Knowledge in the 91.7 Allegations, Because the NTSB Has 

Already Rejected this Argument in a Prior Case 15 

d. The Administrator Has Failed to Address Other Elements of the Case 16 

II. The Administrator Fails to Meet His Burden Concerning the 14 C.F.R. § 91.13 Allegations 

16 

a. The 14 C.F.R. § 91.13 Claim Has Already Been Fully Litigated and the Administrator's 

Arguments Have Already Been Preclusively Addressed Under Collateral Estoppel 17 

i. The Issue Decided in the Prior Proceeding is Identical With the Issue Presented in 

the Second 17 

ii. The Party Against Whom Collateral Estoppel is Asserted Was a Party in the Prior 

Litigation 18 

iii. The Prior Adjudication Ended in a Final Judgment on the Merits 18 

iv. The Administrator (the Party Against Whom the Doctrine is Asserted) Had a Fair 

Opportunity to Litigate the Issue Because the Administrator was a Party to the Prior 

Litigation 19 

b. The 91.13(a) Claim Was Asserted Contrary to Court Order, and After the Statute of 

Limitations Had Passed 19 

III. The Administrator Fails to Meet His Burden Concerning the 14 C.F.R. § 43.13 

Allegations 20 

a. The Administrator's 43.13 Case Fails to Make a Connection to Any Actual Maintenance 

Facts 20 

1. There is no Evidence to Suggest That Any Maintenance-Performing Party Moved the 

Spoilers into Maintenance Mode 21 

2. The Administrator Has No Evidence that the Spoilers Were Placed in Maintenance 

Mode as a Consequence of a Maintenance Activity 22 

b. The Alaska Airlines Case is Materially Different from this Case, Because There is No 

Evidence of a Maintenance Connection in this Case 22 

c. The Administrator is Trying to Skip Steps in Its Causal Argument 23 

d. The Administrator is Offering Arguments That Are Inapplicable to this Case 24 

1. The FAA is arguing a violation of 14 C.F.R. § 121.363(a) but the FAA has never alleged 

violation of this regulation 24 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 2 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
2. The Respondent Does Not Bear the Burden of Proof 24 

Conclusion 25 

CERTIFICATE OF SERVICE 27 

Summary of the Case 

This matter involves an aircraft (N265AV) that was the subject of heavy maintenance 

performed by AAR. The aircraft was at the end of a lease, and was being maintained so it could 

be returned to the owner, ILFC. 

The aircraft was flown on a maintenance acceptance flight on May 17, 2008. See 

Babbitt v. Surratt. EA-5514, 2010 NTSB LEXIS 31 at *1 n.2 (March 23, 2010). A maintenance 

acceptance flight is an operational test of the maintenance performed. 14 C.F.R. § 91.407(b). 

The maintenance acceptance flight was flown by two pilots - Captain Tony Scot Surratt and 

Captain Frank William Walker. 

The pilots discovered during the maintenance acceptance fight that certain spoilers 

were inoperative, and subsequent analysis after landing showed that two spoilers had been 

deactivated. The deactivated mode is also known as "maintenance mode." 

The Administrator's claims are that (1) the flight was unairworthy (violating 91.7 and 

91.13), and (2) USA 3000 improperly performed maintenance, which led to the spoiler 

deactivation. 

USA 3000's response (in summary) is that the Part 91 (airworthiness) issues have 

already been fully litigated in a prior case before the NTSB, and the Administrator lost those 

arguments. Under the doctrine of collateral estoppel it is inappropriate to relitigate them. 

USA 3000's response (in summary) to the Part 43 claims is that they cannot be sustained 

because the Administrator has failed to identify any activity regulated by Part 43 (maintenance 

activity) that was not properly performed, and has failed to draw any causal connection 

between a maintenance activity and the deactivation of the spoilers. Instead, the Administrator 

is working from the fact that the spoilers were deactivated and assuming all other facts - and the 

facts of this case contravene such an induction. 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 3 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
Facts 

1. The Administrator Cannot Draw a Factual/Causal Link Between 

Any Improper Maintenance and the Deactivation of the Spoilers 

Maintenance in this case was performed by AAR for USA 3000, but there was no 

evidence of improper maintenance, and there was also no evidence of a link between any 

maintenance activity and the deactivation of the spoilers. 

In the Complaint, the Administrator claimed that: 

"Prior to the flight, maintenance was performed on the aircraft in which the spoiler 

servo actuators for left wing roll spoilers three and five were placed in the maintenance 

mode." Complaint at Allegation 4 of Section II. 

USA 3000 sought discovery on this allegation, and asked: 

"Interrogatory #1: Allegation 4 of section II of the Complaint contends that the spoiler 

servo actuators were placed in the maintenance mode during maintenance. On what 

date and during what maintenance operation were the spoiler servo actuators placed in 

the maintenance mode?" Respondent's First Set of Interrogatories. Requests for 

Production of Documents, and Requests for Admissions. Interrogatory #1. 

The Administrator answered by admitting that: 

"the Complainant does not know the exact date of the maintenance ... the Complainant 

does not know during what maintenance operation the spoiler servo actuators were 

placed in the maintenance mode, however it appears that the maintenance was 

performed by AAR." Complainant's First Response to Respondent's First Set of 

Interrogatories. Requests for Production of Documents, and Requests for Admissions. 

Response to Interrogatory #1. 

The Administrator has admitted that he does not know of any maintenance that was 

improperly performed in this case, and that he cannot draw any link between any maintenance 

activity and the deactivation of the spoilers. 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 4 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dicksteui 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
2. The Administrator's Own Investigation Showed that There Was No 

Evidence of Improper Maintenance 

The FAA's own data shows that they have no reason to believe that maintenance was 

improperly performed. 

On July 7, 2008, the FAA sent to AAR a letter explaining that investigation of the 

incident in question had revealed no violations of the Federal Aviation Regulations. File Closure 

Letter from Reporting Inspector Linda Burnett to AAR (July 7, 2008) (Appendix A). 

In several FAA Program Tracking and Reporting Subsystem (PTRS) Data Sheet, provided 

in response to USA 3000's discovery request, the Administrator admits that the FAA's own 

investigators could not determine that any AAR employee put the spoilers in maintenance 

mode: 

"05-20-2008 TO 06-16-2008 - CONDUCTED INVESTIGATION REGARDING THE ALLEGED 

IMPROPER MAINTENANCE. COULD NOT PROVE THAT ANY AAR EMPLOYEE PERFORMED 

THE IMPROPER POSITIONING OF THE LEFT WING SPOILERS 3 AND 5 TO THE 

MAINTENANCE MODE." FAA PTRS record from Inspector LXC for EIR 2008SO190220 (all 

capitals in original) (Appendix G). 

The discovery evidence shows that the Administrator does not know who placed the 

spoilers in the maintenance mode; and the Administrator cannot show that any AAR employee 

placed the spoilers in the maintenance mode. This is a critical evidentiary failure, because there 

is also no evidence that any maintenance was incorrectly performed. Instead, the Administrator 

relies on the proposition that the spoilers were deactivated, and works backwards to assume all 

of the other facts about the allegation - the relationship between performance of some 

maintenance and the deactivation of the spoilers (causation) is assumed, and also the 

proposition that maintenance was improperly performed (the alleged causal act) is also 

assumed. 

The Administrator cannot reasonably claim that he has found additional facts to support 

the allegation that USA 3000 performed maintenance incorrectly (allegation four in the 

Complaint), because in interrogatory #2, USA 3000 asked: 

Interrogatory #2: Please identify all of the facts that you contend support Allegation 4 of 

section II of the Complaint. Respondent's First Set of Interrogatories. Requests for 

Production of Documents, and Requests for Admissions. Interrogatory #2. 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 5 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
In response to this, the Administrator explained: 

Prior to the flight there were several indications in the cockpit suggesting that left and 

right wing roll spoilers 3 and 5 were not operational, during the flight these roll spoilers 

did not function, and after the flight it was determined through visual inspection that 

the spoiler servo actuators were placed in the maintenance mode. Complainant's First 

Response to Respondent's First Set of Interrogatories. Requests for Production of 

Documents, and Requests for Admissions, Response to Interrogatory #2 (Appendix F). 

It is clear that the Administrator's position is that the only evidence of any improper 

maintenance is the fact that the spoilers (in some unidentified way) ended up deactivated (in 

"maintenance mode"). Nowhere in this answer does the Administrator specify any facts to 

support the allegation that USA 3000 performed maintenance incorrectly. And as we see in the 

enforcement case against the pilots. Judge Fowler disagreed with the Administrator's contention 

concerning pre-flight indications of failures, and ruled that the pre-flight indications suggested 

no spoiler problems. 

3. The Part 91 Issues Were Fully Litigated by the Administrator in 

Babbitt v. Surratt. and the Board Rejected the Administrator's 

Claims of 91.7 and 91.13 Violations 

The Administrator brought certificate suspension actions, including 14 C.F.R. §§ 91.7(a) 

and 91.13(a) charges, against the two pilots on this flight. The matter was heard before the 

honorable Chief Judge Fowler of the National Transportation Safety Board. 

Judge Fowler found that the pilots did not know that the spoilers were inoperative at 

the time of take-off. See Babbitt v. Surratt. SE-18562, 2009 NTSB LEXIS 106 at '*12, *14, +16 

(September 2, 2009) (Appendix C). He found that the pilots leaned that the spoilers were 

inoperative after take-off. Id. at '*13-*14, '*17. He found that it was reasonable for the pilots to 

have continued their maintenance acceptance flight. JcL at *1A, '*17-18. Judge Fowler noted 

that the pilots did not have knowledge of an unairworthy condition during the flight, jd. at *10. 

Because the pilots did not have knowledge of an unairworthy condition at the time of takeoff, 

there was no violation of 91.7(a) at the time of takeoff, jd. at *14. The pilots referred to the 

Quick Reference Handbook (QRH) on the aircraft, which only required confirmation of the 

length of the landing runway; because the QRH permitted continued flight upon learning of 

RESPONDENT'S ANSWER to the Washington Aviation Group, PC and the 

COMPLAINANT'S MOTION FOR DECISION Law Offices of Jason A. Dickstein 

Page 6 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
inoperative spoilers, and no other resource provided contrary guidance. Judge Fowler held that 

there was no violation of 91.7(a) during the flight. Id. at '*14-'*15. Judge Fowler specifically 

found that each pilot did not operate the aircraft in a careless manner so as to endanger the life 

or property of another and therefore did not violate 14 C.F.R. § 91.13(a). Id. at *1A, ^17-18. 

On appeal, the National Transportation Safety Board (NTSB) affirmed Judge Fowler's 

rulings. Babbitt v. Surratt. EA-5514, 2010 NTSB LEXIS 31 at *26-'*27 (March 23, 2010) (Appendix 

D). The Board agreed that the pilots had the discretion to continue with the flight, and that the 

decision was reasonable. Id. at *26-*27. 

The Administrator petitioned for reconsideration of the Board's decision, and the Board 

affirmed their own decision. Babbitt v. Surratt. EA-5527, 2010 NTSB LEXIS 56 (June 25, 2010) 

(Appendix E). On reconsideration, the Board clearly stated that the Administrator had failed to 

prove that the pilots had knowledge of an unairworthy condition prior to take-off. Jd. at *2. 

The Board explained that the evidence showed that the pilots had a "green" ECAM (free of error 

messages) prior to take-off. Id. at *6-*7. The Board stated that the pilots did not know, nor 

should they have reasonably known, that the aircraft was in an unairworthy condition, jd. at '*9-

*10. The Board concludes that the pilots acted reasonably in their decisions (they did not act 

recklessly nor carelessly). Id^ at *13. 

Standard of Proof 

The applicable standard states that the "Administrative Law Judge shall grant a party's 

motion for decision if the evidence shows that (1) there is no genuine issue of material fact and 

(2) that the party making the motion is entitled to a decision as a matter of law." 14 C.F.R. § 

13.218(f)(5). In this case, the Administrator is not entitled to a decision as a matter of law, and 

therefore is not entitled to have his Motion for Decision granted. 

A Motion for Decision is adjudicated under the same standards as a motion for summary 

judgment. Summary judgment is appropriate when there is no genuine issue of material fact 

and the moving party is entitled to judgment as a matter of law (See 14 C.F.R. § 13.218(f)(5); cf. 

Fed. R. Civ. P. 56(c)) or when no reasonable decision-maker could return a verdict for the 

nonmoving party. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 248 (1986). 

RESPONDENT'S ANSWER to the Washington Aviation Group, PC and the 

COMPLAINANT'S MOTION FOR DECISION Law Offices of Jason A. Dickstein 

Page 7 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
One of the main purposes of a summary judgment motion is to dispose of factually 

unsupported claims. See Anderson. 477 U.S. at 249; Celotex Corp. v. Catrett. 477 U.S. 317, 323-

24 (1986). In this motion, the Administrator has the burden of showing that there is no genuine 

issue of material fact disputed by the parties. 14 C.F.R. § 13.218(f)(5). For purposes of this 

motion, the court must examine the evidence in the light most favorable to the non-moving 

party (USA 3000) and draw all reasonable inferences in that party's favor. 

A dispositive motion may not rely on a mere assertions or unsupported claims. In Re 

Horizon Air Industries. Fed. Av. Dec. 1996-24. In this case, there are relevant facts missing from 

the Administrator's Part 43 claims, and therefore his Motion for Decision must be DENIED as to 

those claims. Also in this case, there are relevant facts in the Part 91 claims that have already 

been decided against the Administrator in a prior matter that has collateral estoppel effect. The 

Administrator's characterization that there is no knowledge element to a 91.7 claim is contrary 

to existing precedent and there is no sound basis offered to support this contention. Therefore 

his Motion for Decision must be DENIED as to those claims. 

Argument 

L The Administrator Fails to Meet His Burden Concerning the 14 

C.F.R. §91.7 Allegations 

The Administrator claims that there is no knowledge element to a 91.7 allegation raised 

against an air carrier. The argument fails because it is well-established that there is a knowledge 

element to a 91.7 allegation. The knowledge of a corporation is the knowledge of the relevant 

agents - in this case the only relevant agents were the pilots that operated the flight. 

Knowledge of the pilots (and their liability under 91.7) has already been litigated in a prior case 

addressing these same facts and therefore cannot be relitigated under the doctrine of collateral 

estoppel. Because the prior case found that there was no knowledge that gave rise to 91.7 

liability for the agents (the pilots), there is likewise no knowledge giving rise to 91.7 liability for 

the principal (USA 3000). 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Pages 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
a. There is a Knowledge Element to 14 C.F.R. § 91.7 Cases 

There is a rich history of cases in which the courts have repeatedly examined the 

knowledge element of a 91.7 (airworthiness) allegation. E ^ Babbitt v. Haddock. 2010 NTSB 

Lexis 70 at *13 (Aug. 18, 2010) ("In determining whether an aircraft is airworthy... the Board 

considers whether the operator knew or should have known of any deviation in the aircraft's 

conformance with its type certificate"); Babbitt v. Surratt, 2010 NTSB Lexis 56 at '*10 (June 25, 

2010) ("we considered this knowledge element in reaching our conclusion that respondents did 

not violate § 91.7(a)"); Blakey v. Yialamas. 2004 NTSB Lexis 40 at *9-'*10 (Sept. 20, 2010) ("To 

prove a violation of section 91.7(a), the Administrator must show that the airman operated an 

aircraft that he knew or reasonably should have known was not airworthy"); Garvev v. Frost. 

1998 NTSB LEXIS 76 at '*5-'*6, NTSB Order No. EA-4680 at 2 (July 1, 1998) (Docket SE-14781) 

(explaining that the standard for airworthiness violations is one of reasonableness that 

examines knowledge); Administrator v. Parker. 1980 NTSB LEXIS 21 at '*3 and n.6, 3 NTSB 2997, 

2998 and n.6 (Oct. 24,1980) ("the operator is chargeable if he was aware, or should have been 

aware, though the exercise of appropriate preflight inspection, of any abnormal condition which 

a reasonable and prudent pilot would conclude rendered the craft unairworthy"). 

There is no question that the cases in the past have recognized that 91.7 allegations 

have a knowledge element. The Administrator has offered no reason to doubt those past 

decisions, and has made no attempt to change the past recogrtition of this knowledge element. 

Instead, the Administrator argues that he need NOT prove that the air carrier knew or 

reasonably should have known of the unairworthy condition in alleging a 91.7 violation. FAA's 

MSD at 8. The Administrator is arguing that 91.7(a) is a an offense that includes no intent or 

knowledge element when it is alleged against an air carrier, even though it includes a knowledge 

element when alleged against other parties. The Administrator offers nether a statutory nor a 

regulatory basis for this distinction. There is no policy reason for this distinction. By applying 

different standards for the analysis of the same regulation to different parties, the 

Administrator is raising a fundamental equal protection issue, as well as ignoring significant 

precedent. 

The Administrator cites to the Alaska Airlines case to support its claim that that there is 

no knowledge element in a 91.7 case brought against an air carrier. FAA's MSD at 8. First of all. 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 9 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
91.7 was never alleged in the Alaska Airlines case, and there was no finding of a 91.7 violation in 

the Alaska Airlines case. 

The Alaska Airlines case found a violation of the duty to provide oversight to a 

maintenance contractor, and imputed the contractor's misdeeds to the air carrier. It is clear 

that the litigation position of the Administrator in the case against USA 3000 is actually contrary 

to the Alaska Airlines decision. In the Matter of Alaska Airlines. FAA Order No. 2004-8, 2004 FAA 

LEXIS 905 (FAA 2004). 

That case held that the air carrier "is responsible for the maintenance deficiencies of its 

independent contractors." Jd. That case specifically relied on the fact that the maintenance 

contractor had committed maintenance violations, for which the air carrier was responsible 

under 14 C.F.R. §121.363. 

In Alaska Airlines, the violation of the maintenance contractor was imputed to the air 

carrier and therefore the knowledge element associated with that violation was also imputed to 

the air carrier (that case did not vitiate the knowledge element for the air carrier). Id. 

Administrator Blakey explained that the air carrier cannot avoid the knowledge element by 

limiting the analysis to its own knowledge - thus the air carrier remains responsible for the 

knowledge and actions of its contractors, j^ . 

This Alaska Airlines decision was consistent with norms of agency law, in which a 

principal remains responsible for the knowledge of its agents. See, e.g.. Restatement (Third) of 

Agency at § 5.03 (2006) ("notice of a fact that an agent knows or has reason to know is imputed 

to the principal if knowledge of the fact is material to the agent's duties to the principal"). Thus, 

there is nothing in the Alaska Airlines case that is inconsistent with the proposition that 14 C.F.R. 

§ 91.7 has a knowledge element. 

The Administrator is trying to overturn well-established precedent that has found that 

he must prove knowledge in order to sustain a 14 C.F.R. § 91.7 allegation. The Administrator 

offers no sound argument in favor of a policy change - instead the Administrator draws 

comparisons to a case in which a 91.7 claim was not even alleged. The Administrator's Motion 

for Decision with respect to the 91.7 allegation must be denied. 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 10 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
b. The Pilots of the Flight Were the Relevant Agents for Purposes of 

Testing Knowledge 

USA 3000 is a corporate entity and therefore its actions are the actions of its agents; its 

knowledge is the knowledge of its agents. 

USA 3000 had two agents on the aircraft who were operating the aircraft on behalf of 

the company. They were Captain Surratt and Captain Walker. The Administrator has already 

unsuccessfully brought certification actions against these two pilots with respect to the flight 

that is at issue in this case. As part of the decision in those actions, the NTSB found that neither 

Captain Surratt nor Captain Walker knew that the spoilers were in maintenance mode. 

Furthermore, the NTSB found it was reasonable that the pilots did not know of the spoilers 

being in maintenance mode. In that case, the NTSB specifically dismissed the Administrator's 

claims of 91.7(a) and (b) violations against the pilots. 

The relevant agents in this case are the pilots of the flight at issue in this case. Captains 

Surratt and Walker. In its response to Interrogatory #19 in this case, the Administrator admitted 

that Captains Surratt and Walker were the only relevant agents for purposes of the operation at 

issue in the 91.7 allegation. Respondent's Interrogatory #19 in this matter asked 

"Is it the Administrator's contention that Respondent was aware, before take-off and 

during the flight, that the spoilers were not functioning properly ('aware')? If the 

answer to this question is 'yes,' then please identify each natural person who was 

'aware' and identify any facts or evidence that supports the Administrator's claim that 

the individual was 'aware.'" 

The Administrator responded to that interrogatory #19 with the following statement: 

"Both of the pilots who operated the aircraft during the flight either were aware that 

the aircraft's ECAM indicated that left and right wing roll spoilers 3 and 5 were not 

operational. Furthermore if the pilots actually performed a flight control check they 

would have been aware that the spoilers were not functioning properly prior to takeoff. 

The facts are that the pilots admit they saw the ECAM indications, the ECAM system was 

functioning properly, if the ECAM system is functioning properly the ECAM will show 

that these spoilers are not operational if they are put in the maintenance mode, the 

flight control check requires the pilots to test the spoilers, and if the spoilers servo 

actuators for the spoilers are in the maintenance mode then the spoilers will not 

function during the flight control check." 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 11 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
It is clear from this response that the Administrator agrees that the pilots' knowledge 

concerning the airworthiness issues in this case is the only knowledge that is relevant in this 

case. 

The Board found that the two pilots could not have violated 91.7(a) of (b) because they 

did not know (or reasonably should have known) of the spoiler issues until they were in the air, 

and they did not know that the spoilers were in maintenance mode until after the flight was 

over. Thus, the 91.7 allegations against the pilots were dismissed by the Board for lack of 

knowledge. 

While an agent's knowledge and actions may be imputed to the principal, the agent 

must have knowledge or action to be imputed. In our case, the agents who operated the 

aircraft (the pilots) did not violate 14 C.F.R. § 91.7, and therefore there is no underlying offense 

that can be imputed to USA 3000. 

c. It Was Previously Decided that there was Insufficient Knowledge to 

Support a 91.7 Allegation, and under the Doctrine of Collateral 

Estoppel the Lack of Knowledge Supporting a 91,7 Allegation Applies In 

Our Case as Well 

Collateral estoppel prevents a party from relitigating an issue after the party has had a 

full and fair opportunity to present its case in a prior proceeding. It bars re-litigation of an issue 

of fact or law that was actually litigated and resolved in a prior court determination, even if the 

issue recurs in the context of a different claim. Lg. Taylor v. Sturgell. 553 U.S. 880, 892 (2008). 

Collateral estoppel has four elements: 

1) the issue decided in the prior proceeding is identical with the issue presented in the 

second; 

2) the party against whom collateral estoppel is asserted was a party in a prior, actual, 

litigation; 

3) the prior adjudication ended in a final judgment on the merits; and, 

4) the party against whom the doctrine is asserted had a fair opportunity to litigate the 

issue (e.g. it was either a party to the litigation or in privity to a party). 

E.g. Syverson v. IBM. 472 F.3d 1072,1078 (9th Cir. 2007); see also Parklane Hosiery Co. v. Shore. 

439 U.S. 322 (1979), Blonder-Tongue Lab, v. Univ. of 111. Found.. 402 U.S. 313, 323-324 (1971). 

RESPONDENTS ANSWER to the Washington Aviation Group, PC and the 

COMPLAINANT'S MOTION FOR DECISION Law Offices of Jason A. Dickstein 

Page 12 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
I, The Issue Decided in the Prior Proceeding is Identical With the 

Issue Presented in the Second 

In this case, the 14 C.F.R. § 91.7 allegation by the Administrator is identical to the 14 

C.F.R. § 91.7 issue that was raised in the prior Surratt and Walker case. See Babbitt v. Surratt. 

2009 NTSB Lexis 106 (September 2, 2009), affirmed on appeal EA-5514, 2010 NTSB LEXIS 31 

(March 23, 2010), motion for reconsideration denied EA-5527, 2010 NTSB LEXIS 56 (June 25, 

2010). The final decision of the trial judge, as well as the denial of the Administrator's appeal to 

the Board and the denial of the Administrator's motion for reconsideration are attached as 

appendices to this Motion. 

In both cases, the allegations are based upon a USA 3000 maintenance acceptance flight 

of an Airbus A320 on May 17, 2008 from Miami International Airport. Compare Babbitt v. 

Surratt. EA-5514, 2010 NTSB LEXIS 31 at *1 (March 23, 2010) (identifying the flight) with In the 

matter of Brendan Airways. LLC. FAA Docket No. CP09EA0007, Complaint at paragraph 11(3) 

(January 14, 2009) (identifying the same flight in the case at bar). Both the prior case and this 

case are dealing with the same flight. 

Both cases alleged that the flight in question was operated in an unairworthy fashion in 

violation of 14 C.F.R. § 91.7(a). Compare Babbitt v. Surratt. EA-5514, 2010 NTSB LEXIS 31 at *1 

n.2 (March 23, 2010) (explaining that the pilots were charged with violating section 91.7(a) with 

respect to the maintenance acceptance flight) with In the matter of Brendan Airways. LLC, FAA 

Docket No. CP09EA0007, Complaint at paragraph lll(e) (January 14, 2009) (charging USA 3000 

with violating section 91.7(a) with respect to the maintenance acceptance flight). 

Case law has held that the Administrator must prove knowledge when it alleges a 

section 91.7(a) violation (it is not a strict liability offense). See, e.g.. Administrator v. Parker. 3 

NTSB 2997, 2998 (1980); Garvev v. Frost. NTSB Order No. EA-4680 at 2 (July 01, 1998) (Docket 

SE-14781); Nunn v. Hinson. 1994 WL 808076 (November 07, 1994) (NTSB Docket 207-EAJA-SE13563). The behavior of persons charged with airworthiness violations should be measured by 

what the persons knew or should have known about the aircraft, with this standard requiring 

the persons to have reacted reasonably and prudently to information of which they are aware. 

Richards v. Olsen. NTSB Order No. EA-3743, 1992 WL 371359 at 2 (NTSB November 23, 1992) 

(Docket SE-10883). 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 13 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
It has long been recognized that a corporation can only act through its officers and 

agents. Lg, New York C. & H. R. R. Co. v. United States. 212 U.S. 481, 495 (1909); Fidelity & 

Deposit Co. V. Courtney. 186 U.S. 342, 361 (1902). The longstanding general rule is that a 

corporation is charged with the knowledge of the agent acquired by the agent in the course of 

the principal's business. Lg. Curtis. Collins & Holbrook Co. v. United States. 262 U.S. 215, 222 

(1923). 

Thus, in order to prove that USA 3000 has the requisite knowledge in order to be found 

culpable of a violation, the Administrator must prove that USA 3000's agents had the requisite 

knowledge. In other words, the corporation has no knowledge for purposes of this analysis 

except the knowledge of its own employees, the pilots who operated the aircraft. 

The Administrator has admitted that no one else had relevant knowledge with respect 

to this flight, and as discussed in section l.b of this Argument, Captain Surratt and Captain 

Walker were the pilots on board the flight whose knowledge must be used as the corporate 

knowledge in this case. 

Because the pilots' knowledge was a critical deciding element of the prior case, and it is 

also a key element of the case at bar, the knowledge issue decided in the prior proceeding is 

identical with the knowledge issue that is presented in this matter. 

ii. The Party Against Whom Collateral Estoppel is Asserted Was a 

Party in the Prior Litigation 

The Administrator of the Federal Aviation Administration, against whom this collateral 

estoppel is asserted, was the Complainant in the Surratt and Walker case. The matter was 

actually litigated in a two-day trial. Babbitt v. Surratt. EA-5514, 2010 NTSB LEXIS 31 at *1 (March 

23, 2010). 

Ill", The Prior Adjudication Ended in a Final Judgment on the Merits 

Babbitt v. Surratt and Walker ended in a final judgment on the merits. See Babbitt v. 

Surratt. 2009 NTSB Lexis 106 (September 2, 2009). The Board denied both an appeal and a 

motion for reconsideration of the appeal. See Babbitt v. Surratt. EA-5514, 2010 NTSB LEXIS 31 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 14 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
(March 23, 2010) (affirming on appeal), and Babbitt v. Surratt. EA-5527, 2010 NTSB LEXIS 56 

(June 25, 2010) (motion for reconsideration denied). 

The final decision in the prior case was that Surratt and Walker - the two pilots flying the 

aircraft - did not have the requisite knowledge to support the contention that either had 

violated 14 C.F.R. § 91.7(a) by flying an unairworthy aircraft; the Board found that USA 3000's 

agents, the pilots, did not have the requisite level of knowledge to violate section 91.7(a). 

Babbitt v. Surratt. EA-5527, 2010 NTSB LEXIS 56 at "^lO (June 25, 2010) (explaining that the pilots 

did not know that the aircraft was unairworthy, and they therefore did not have the requisite 

knowledge in order to satisfy the knowledge element of a section 91.7(a) allegation). 

IV. The Administrator (the Party Against Whom the Doctrine is 

Asserted) Had a Fair Opportunity to Litigate the Issue Because 

the Administrator was a Party to the Prior Litigation 

The Administrator of the Federal Aviation Administration, against whom this collateral 

estoppel is asserted, vigorously argued the knowledge issue in the prior case. In fact, the 

Administrator appealed on that issue, and moved for reconsideration on the knowledge issue. 

See, e.g.. Babbitt v. Surratt. EA-5527, 2010 NTSB LEXIS 56 at *9 (June 25, 2010) (affirming that 

the pilots "did not know, nor should have known, that the aircraft was n an unairworthy 

condition"). Because the central issue upon which collateral estoppel is founded has been fully 

litigated and appealed, it would not be an injustice to rely n the prior ruling concerning this 

issue. 

V. Under the Doctrine of Collateral Estoppel, the Administrator is 

Estopped from Relitigating the Issue of Knowledge in the 91.7 

Allegations, Because the NTSB Has Already Rejected this 

Argument in a Prior Case 

Just as in the Alaska Airlines case, we can examine the knowledge of the relevant agents 

(the pilots) and impute it to the principal (USA 3000). The factual issue of whether there was 

knowledge has already been decided by the NTSB, and it has been decided that there was no 

knowledge to support a 91.7 allegation. Thus, there is no knowledge to impute to the principal. 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 15 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
USA 3000. Lacking a necessary element of a 91.7 claim, the Administrator's 91.7 claim cannot 

be sustained. 

In summary, the doctrine of collateral estoppel applies in this case because in a prior 

adjudication, the NTSB found that the pilots did not have the requisite knowledge to sustain an 

allegation of a 14 C.F.R. § 91.7(a) violation concerning the same flight that is at issue in this case. 

The Administrator's answer to interrogatory 19 makes it clear that there are no other agents 

through whom USA 3000 could have acted, that would have had relevant knowledge related to 

the airworthiness of the aircraft. Consequently, USA 3000 could not possibly have violated 

section 91.7(a) because none of its relevant agents had the requisite knowledge to sustain such 

an allegation of violation. 

d. The Administrator Has Failed to Address Other Elements of the Case 

The failure to be able to prove knowledge, alone, makes it impossible for the 

Administrator to prevail on the 91.7 allegation; however, there are other issues in the case that 

the Administrator has failed to address. 

For example, the courts have stated that when small. Insignificant deviations are present, an 

aircraft may still substantially conform to Its type design. See Blakey v. Thibert. NTSB Order No. EA-5306, 

2007 WL 2320710 at *2 (NTSB 2007); Administrator v. Frost. NTSB Order No. EA-4680 (1998); 

Administrator v. Calavaero. Inc., 5 NTSB 1099,1101 (1986). In this case, the spoilers were inoperative. At 

the time of discovery of the inoperative spoilers, during flight, the document that controlled the pilots' 

response was the Pilot's Quick Reference Handbook (QRH). Babbitt v. Surratt, 2009 NTSB LEXIS 106 at 

*5-*6 (NTSB) (Decision of Judge Fowler). The Pilots consulted the QRH and it permitted them to continue 

flying with the inoperative spoilers, jd. It is clear from this that the impact of inoperative spoilers on the 

aircraft's type design was considered to be insignificant, in flight. 

II. The Administrator Fails to Meet His Burden Concerning the 14 

C.F.R. § 91.13 Allegations 

As with the § 91.7 claims discussed above, the § 91.13(a) claim was fully litigated in the 

prior Surratt and Walker case. See Babbitt v. Surratt. 2009 NTSB Lexis 106 (September 2, 2009), 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 16 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
affirmed on appeal EA-5514, 2010 NTSB LEXIS 31 (March 23, 2010), motion for reconsideration 

denied ItK-SSll. 2010 NTSB LEXIS 56 (June 25, 2010). 

The collateral estoppel argument that applies to the § 91.7 claim is incorporated by 

reference, and an abbreviated summary of the argument as it applies to the § 91.13(a) claim 

follows. 

a. The 14 C.F.R. § 91.13 Claim Has Already Been Fully Litigated and the 

Administrator's Arguments Have Already Been Preclusively Addressed 

Under Collateral Estoppel 

I. The Issue Decided in the Prior Proceeding is Identical With the 

Issue Presented in the Second 

In this case, the 14 C.F.R. § 91.13(a) allegation by the Administrator is identical to the 14 

C.F.R. § 91.13(a) issue that was raised in the prior Surratt and Walker case. 

In both cases, the allegations are based upon the same USA 3000 maintenance 

acceptance flight of an Airbus A320 on May 17, 2008 from Miami International Airport. Both 

allegations claim that the flight in question was flown in a careless or reckless manner. Compare 

Babbitt v. Surratt, EA-5514, 2010 NTSB LEXIS 31 at • I n.2 (March 23, 2010) (explaining that the 

pilots were charged with violating section 91.13(a) with respect to the maintenance acceptance 

flight) with In the matter of Brendan Airways. LLC. FAA Docket No. CP09EA0007, Amended 

Complaint at paragraph lll(d) (January 14, 2009) (charging USA 3000 with violating section 

91.13(a) with respect to the same maintenance acceptance flight). 

It has long been recognized that a corporation can only act through its officers and 

agents, g ^ New York C. & H. R. R. Co. v. United States. 212 U.S. 481, 495 (1909); Fidelity & 

Deposit Co. V. Courtney. 186 U.S. 342, 361 (1902). The longstanding general rule is that a 

corporation is charged with the knowledge of the agent acquired by the agent in the course of 

the principal's business. Lg;. Curtis. Collins & Holbrook Co. v. United States. 262 U.S. 215, 222 

(1923). 

Thus, in order to prove that USA 3000 has the requisite knowledge in order to be found 

culpable of a reckless or careless flight violation, the Administrator must prove that USA 3000's 

agents had the requisite knowledge. In other words, the corporation has no knowledge for 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 17 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
purposes of this analysis except the knowledge of its own employees, the pilots who operated 

the aircraft. 

Surratt and Walker were the pilots on board the aircraft so their alleged reckless or 

careless behavior would be the behavior that must be analyzed as the corporate behavior. 

In Paragraph 20 of the Complaint, the Administrator claimed "During the flight, the 

aircraft was operated in a careless or reckless manner so as to endanger the life or property of 

another." Amended Complaint at 1) 20 (October 19, 2010). In order to better gauge the scope 

and reason for the factual allegation, Respondent's Interrogatory #7 in this matter asked the 

Administrator to "Please identify all of the facts that you contend support Allegation 20 of 

section II of the Complaint." 

The Administrator responded to that interrogatory with the statement, "See the above 

and the Complaint." Neither the complaint nor the other answers to the interrogatories identify 

any person who acted in a careless or reckless manner. Only the pilots actions are described 

"above" the answer to interrogatory 7, so there is no other person whose behavior could 

reasonably be within the scope of what the Administrator claims to have been reckless or 

careless in the 91.13(a) claim. 

Because the pilots' behavior was a critical deciding element of the prior case, and is a 

key element of the case at bar, the reckless/careless behavior issue decided in the prior 

proceeding is identical with the reckless/careless behavior issue that is presented in this matter. 

it The Party Against Whom Collateral Estoppel is Asserted Was a 

Party in the Prior Litigation 

The Administrator of the Federal Aviation Administration, against whom this collateral 

estoppel is asserted, was the Complainant in the Surratt and Walker case. The matter was 

actually litigated in a two-day trial. Babbitt v. Surratt. EA-5514, 2010 NTSB LEXIS 31 at *1 (March 

23, 2010). 

iii. The Prior Adjudication Ended in a Final Judgment on the Merits 

Babbitt v. Surratt and Walker ended in a final judgment on the merits. See Babbitt v. 

Surratt. 2009 NTSB Lexis 106 (September 2, 2009). The Board denied both an appeal and a 

RESPONDENT'S ANSWER to the Washington Aviation Group, PC and the 

COMPLAINANT'S MOTION FOR DECISION Law Offices of Jason A. Dickstein 

Page 18 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
motion for reconsideration of the appeal. See Babbitt v. Surratt. EA-5514, 2010 NTSB LEXIS 31 

(March 23, 2010) (affirming on appeal), and Babbitt v. Surratt. EA-5527, 2010 NTSB LEXIS 56 

(June 25, 2010) (motion for reconsideration denied). 

The final decision in the prior case was that Surratt and Walker - the two pilots flying the 

aircraft - did not act in a reckless or careless manner and therefore did not violate 14 C.F.R. § 

91.13(a). Babbitt v. Surratt. SE-18562, 2009 NTSB LEXIS 106 at *1A, *17-18 (September 2, 2009) 

(specifically finding that each pilot did not operate the aircraft in a careless manner so as to 

endanger the life or property of another); see also Babbitt v. Surratt. EA-5514, 2010 NTSB LEXIS 

31 (March 23, 2010) (denying the FAA's appeal of the § 91.13(a) charge), and Babbitt v. Surratt. 

EA-5527, 2010 NTSB LEXIS 56 (June 25, 2010) (denying the FAA's motion for reconsideration of 

the § 91.13(a) charge). 

iv. The Administrator (the Party Against Whom the Doctrine is 

Asserted) Had a Fair Opportunity to Litigate the Issue Because 

the Administrator was a Party to the Prior Litigation 

The Administrator of the Federal Aviation Administration, against whom this collateral 

estoppel is asserted, vigorously argued the knowledge issue in the prior case. In fact, the 

Administrator appealed on that issue, and moved for reconsideration on the knowledge issue. 

See. Babbitt v. Surratt. EA-5527, 2010 NTSB LEXIS 56 (June 25, 2010). Because the central issue 

upon which collateral estoppel is founded has been fully litigated and appealed, it would not be 

an injustice to rely n the prior ruling concerning this issue. 

In summary, the doctrine of collateral estoppel applies in this case because in a prior 

adjudication, the NTSB found that the pilots on the flight did not act recklessly or carelessly in 

violation of 14 CFR 91.13(a). The Administrator's answer to interrogatory 7 makes it clear that 

there are no other agents through whom the USA 3000 could have acted, that the Administrator 

might claim acted recklessly or carelessly with respect to the case at bar. Consequently, USA 

3000 could not possibly have violated section 91.13(a) because none of its agents acted in 

violation of that regulation. 

b. The 91.13(a) Claim Was Asserted Contrary to Court Order, and After 

the Statute of Limitations Had Passed 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 19 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
The Respondent has filed a Motion to Dismiss with respect to the 91.13(a) claim, and 

this Motion is still pending. 

The basis of the Motion to Dismiss is that the Administrator sought to amend the 

Complaint to include a 91.13(a) claim on October 19, 2010; however, the Order of Chief 

Administrative Law Judge, served in this case on February 19, 2009, required all amendments to 

be filed by April 20, 2009. 

The FAA's amendment failed to meet the April 20, 2009 deadline; the FAA has neither 

sought leave to late-file the amendment nor offered good cause for the late filing. It was 

therefore an amendment in contravention of the Order. In addition, the 91.13(a) allegation was 

first raised after the stature of limitations had passed (and therefore could not have been raised 

separately). 

These arguments were fully developed in the Motion to Dismiss and we hereby 

incorporate by reference the arguments of the Motion to Dismiss. 

HI.The Administrator Fails to Meet His Burden Concerning the 14 

C.F.R. § 43.13 Allegations 

a. The Administrator's 43.13 Case Fails to Make a Connection 

to Any Actual Maintenance Facts 

In arguing the Part 43 allegation, the Administrator contends that under 14 C.F.R. 

121.363(a), USA 3000 is responsible for maintenance performed by any party - regardless of the 

connection between USA 3000 and the party who allegedly performed maintenance. FAA's 

MSD at 11. Whether this claim is true or not, it is meaningless in the context of the case at bar. 

First, no one knows who placed the spoilers in maintenance mode, but the FAA's own 

documents suggest that it was not the maintenance contractor. Second, the FAA has no 

evidence that the spoilers were deactivated (placed in maintenance mode) as a consequence of 

a maintenance activity. In addition, this FAA theory is alleging a violation of 14 C.F.R. § 

121.363(a) (the rule that makes the carrier responsible for the performance of maintenance), 

and the FAA has never alleged violation of this regulation (and moreover, the Administrator has 

failed to allege sufficient facts to support this claim, as well). 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 20 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 'Tel: 202-628-6776 
1, There is no Evidence to Suggest That Any Maintenance-Performing 

Party Moved the Spoilers into Maintenance Mode 

The Administrator relies on the Alaska Airline case as the sole case supporting its 14 

C.F.R. § 43.13 allegations. But there is a key difference between the Alaska Airline case and this 

case. In the Alaska Airline case, there seemed to have been no dispute that the maintenance 

contractor diverged from Alaska Airline's instructions and improperly performed maintenance. 

In the case at bar, however, there is no allegation that the maintenance contractor diverged 

from USA 3000's instructions and there is no allegation of any particular improperly performed 

maintenance. In fact, the Administrator has admitted that in this case, there is no evidence of 

any improperly performed maintenance at all. 

The FAA's own investigatory notes that were revealed in discovery show that the 

Administrator's investigators admitted that there was no evidence of wrong-doing by the 

maintenance contractor. See Facts at section 2. It appears that the Administrator has no 

evidence that USA 3000 put the spoilers in maintenance mode, and the Administrator has no 

evidence that USA 3000's maintenance contractor put the spoilers in maintenance mode. 

Who put the spoilers in maintenance mode? No one seems to know; but we do know 

that the Administrator bears the burden of proof at trial to support its allegations. A key 

allegation in the Administrator's claim is that the spoilers were deactivated during a 

maintenance activity - despite the fact that this is a key allegation, the Administrator cannot 

draw any causal relationship between the spoilers deactivation and a maintenance activity. If 

the Administrator cannot say who put the spoilers in maintenance mode, then it seems 

fundamentally impossible for the Administrator to meet his burden of proof at trial to support 

the claim that the spoilers were placed in maintenance mode during maintenance. 

More to the point, the Administrator has offered no evidence to support the claim that 

the spoilers were placed in maintenance mode by any party who performed maintenance. 

Thus, the Administrator cannot hold USA 3000 responsible for this deactivation of the spoilers 

under a maintenance oversight theory. 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 21 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
2. The Administrator Has No Evidence that the Spoilers Were Placed 

in Maintenance Mode as a Consequence of a Maintenance Activity 

The Administrator has stated that USA 3000 is primarily responsible for the performance 

of the maintenance of its aircraft. This statement is consistent with the obligation under 14 

C.F.R. § 121.363(a)(2). But in order for this regulatory obligation to be relevant to the case at 

bar, there has to be maintenance that was performed improperly. 

The Administrator has advanced no theories suggesting that any particular maintenance 

was improperly performed. Instead, the Administrator points to the fact that the spoilers were 

placed in a non-operational mode (known as maintenance mode) as evidence of improper 

behavior. A key flaw in the Administrator's argument is that the Administrator has drawn NO 

connection between the fact that the spoilers were placed in a non-operational mode, and any 

maintenance activity that could have caused this phenomenon. 

After the flight landed, USA 3000 was able to discover that the spoilers had been placed 

in maintenance mode. This means that they had been disabled from operational mode. The 

fact that "maintenance mode" includes the word "maintenance," however, is not evidence that 

maintenance was performed - it is a mere semantic coincidence. 

The fact upon which the Administrator relies in support of this argument are not facts at 

all - they are the allegations of the Complaint. It is a matter of well-settled law that the 

Administrator may not rely on the allegations of the Complaint, alone, to support its motion for 

summary judgment. 

The Administrator has offered no evidence to support the claim that the spoilers were 

placed in maintenance mode during a maintenance activity. Thus, the Administrator cannot 

hold USA 3000 responsible for this deactivation of the spoilers under a maintenance oversight 

theory. 

b. The Alaska Airlines Case is Materially Different from this 

Case, Because There is No Evidence of a Maintenance 

Connection in this Case 

An important distinction between this case and the Alaska Airlines case is 

that in the Alaska Airlines case, there was no dispute that the maintenance contractors had 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 22 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
violated maintenance regulations. In the Matter of Alaska Airlines, FAA Order No. 2004-8, 2004 

FAA LEXIS 905 (FAA 2004). In this case, on the other hand, the Administrator has not alleged 

that AAR (the maintenance contractor) violated any maintenance regulation. In fact, the 

Administrator's investigation notes make it clear that the FAA has no evidence of wrongdoing on 

the part of AAR. 

This is a critical difference between the cases because the Administrator has made it 

clear that he cannot point to any maintenance that was improperly performed in this case. He 

has made it equally clear that he cannot identify any person who improperly performed 

maintenance on N265AV. 

The Administrator is still unable to identify any improperly-performed maintenance; the 

Administrator is also unable to draw a causal link between any maintenance and the spoiler 

issue. Thus, there is no factual allegations that any maintenance failed to meet the 14 CFR 43.13 

standards cited by the Administrator in the Complaint. Therefore the Administrator's claims 

concerning improperly-performed maintenance must be dismissed. 

c. The Administrator is Trying to Skip Steps in Its Causal 

Argument 

The Administrator has offered a possible scenario in which the painting of the next 

operator's livery was one activity in which the spoilers might have been deactivated. There are 

some significant problems with this possible scenario. 

The first and foremost is that it is merely a possible scenario - in response to discovery, 

the Administrator has admitted that there is no evidence to support this hypothesis. See Facts 

at section 1. Respondent has admitted this is possible but has clearly stated throughout the 

case that it has no evidence of any person causing the deactivation of the spoilers. The 

Administrator may not prevail on a motion for decision based on mere conjectural hypotheses 

that are not supported by facts. 

Second, this possible scenario seems to contradict the evidence that the Administrator 

has gathered. In the Administrator's answers to interrogatories and his documents produced in 

response to discovery, he has made it clear that he does not know what maintenance caused 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 23 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
the spoiler deactivation, nor does he know whether any maintenance activity was the cause of 

the spoiler deactivation. See Facts at sections 1 - 2. 

In addition, USA 3000 was not responsible for the work in question - this is work that 

was ordered and paid-for by the aircraft owner, ILFC, who was retaking possession of the 

aircraft at a time when the aircraft was never going to be flown again in a Part 121 operation. 

The work was performed according to instructions provided by ILFC, and over which ILFC 

exercised control. The Administrator is relying on the language in 121.363 that makes the air 

carrier responsible for maintenance on its aircraft - but this language does not make the air 

carrier responsible for non-maintenance activities, nor does it make the air carrier responsible 

for work done for (and under the instructions of) the next operator. 

Because of these fatal flaws in the Administrator's argument, the argument must fail. 

d. The Administrator is Offering Arguments That Are 

Inapplicable to this Case 

1, The FAA is arguing a violation of 14 C.F.R. § 121.363(a) but the FAA 

has never alleged violation of this regulation 

The FAA's theory is that under 14 C.F.R. § 121.363(a), USA 3000 is responsible for the 

activities of an undisclosed party that affected the aircraft in an undisclosed manner - regardless 

of the fact that the party is undisclosed and the causation is undisclosed. This theory does not 

make sense. 

First of all, the Complaint does not, and has never, alleged a violation of 14 C.F.R. § 

121.363(a). Therefore, an alleged violation of 14 C.F.R. § 121.363(a) is not applicable to the case 

at bar. 

Second, 14 C.F.R. § 121.363(a), in relevant part, says that the air carrier is "primarily 

responsible for ... [t]he performance of the maintenance ... of its aircraft... in accordance with 

its manual and the regulations of [chapter I of Title 14 C.F.R.]." There is no evidence of 

maintenance having been performed improperly in this case. 

Finally, the charged offense arises under 14 C.F.R. § 43.13. This is a maintenance rule, 

and as previously mentioned, there is no evidence of improper maintenance in this case. 

RESPONDENT'S ANSWER to the 

COMPLAINANTS MOTION FOR DECISION 

Page 24 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
2. The Respondent Does Not Bear the Burden of Proof 

The Administrator criticizes USA 3000 for failure to offer proof to show who deactivated 

the spoilers. FAA's MSD at 11. USA 3000 has readily admitted that we do not know who 

deactivated the spoilers. FAA investigation and USA 3000 investigation have failed to reveal any 

evidence that it was done during any maintenance. FAA investigation and USA 3000 

investigation have also failed to reveal any evidence of who performed the deactivation. In fact, 

as discussed in the Statement of Facts, the FAA's investigation specifically showed that they 

could not determine the cause of the spoiler deactivation, but that there was no apparent link 

between the deactivation and any maintenance. 

The Administrator's criticism of USA 3000 improperly suggests that USA 3000 bears a 

burden of proof in this matter. This is not true - the Administrator bears the burden at trial (14 

C.F.R. § 13.224(a)) and the Administrator bears the burden of proof on the Motion for Decision 

(14 C.F.R. § 13.224(c)). There is no obligation imposed on the Respondent to prove the cause of 

the deactivation when the Administrator has failed to meet its own burden. 

After investigating the matter, and after conducting discovery, the Administrator still 

does not have any fact-based theory that connects the deactivation of the spoilers to any 

maintenance activity. Therefore, the Administrator cannot prevail in its claims that USA 3000 is 

responsible for improperly-performed maintenance, because there is no evidence of 

maintenance that was performed improperly. 

Conclusion 

In light of the fact that each of the elements of collateral estoppel have been met with 

respect to the above-described Part 91 claims, the court should be bound by the prior factual 

findings of the NTSB with respect to this matter. 

• The Administrative Law Judge should find that the knowledge element of the 

airworthiness claim, which was fully litigated in the Surratt and Walker case, has been 

shown to be missing and that therefore the airworthiness claim under 91.7(a) must be 

dismissed; 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 25 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
• The Administrative Law Judge should find that The Aircraft was not flown recklessly or 

carelessly, based on the full litigation of that issue in the Surratt and Walker case, and 

that therefore the reckless or careless flight claim under 91.13(a) must be dismissed; 

and 

• The Administrative Law Judge should hold that therefore the claims in this case brought 

under sections 91.7(a) and 91.13(a) should be dismissed. 

In addition, the Administrator has admitted in its internal investigation documents, and 

in its response to discovery that he cannot point to any maintenance that was improperly 

performed. The Administrator has also failed to draw a causal link between any maintenance 

that was performed and the deactivation of the spoilers. For these reasons, the Administrator 

cannot sustain a claim that USA 3000 has violated the maintenance standards found in 14 C.F.R. 

§ 43.13 and therefore these claims must be dismissed. 

Thus, we ask that the Administrator's Motion for Decision be denied. 

RESPECTFULLY SUBMITTED this 14th day of February, 2011. 

WASHINGTON AVIATION GROUP, PC AND THE 

LAW OFFICES OF JASON A DICKSTEIN 

1 

By. 

!i/7fry\ i)i'ovy.&j^^i^~~ 

I. Jason Dickstein 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 

Tel: (202) 628-6776 

Attorney for Respondent Brendan Airways, LLC d/b/a USA3000 Airlines 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 26 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
BEFORE THE US DEPARTMENT OF TRANSPORTATION 

The Honorable Chief Administrative Law Judge Ronnie A. Yoder 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines 

Respondent 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that she caused the attached 

• ANSWER to the COMPLAINANT'S MOTION FOR DECISION 

to be filed at the addresses listed below by two-day FedEx service, on the date indicated below. 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

And to be served on the persons at the addresses listed below by the same method as the filing method, 

on the date indicated below. 

David M. Cohen, Attorney 

Federal Aviation Administration 

Office of the Regional Counsel, EAL-7 

1 Aviation Plaza 

Jamaica, NY 11434 

Tel: (718) 553-3270 

Fax: (718) 995-5699 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room E12-320 

US Department of Transportation 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Tel: (202) 366-2142 

Fax: (202) 366-7536 

February 14. 2011 

Date 

RESPONDENT'S ANSWER to the 

COMPLAINANT'S MOTION FOR DECISION 

Page 27 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
APPENDIX A: Closure Letter From Inspector Linda Burnett 

APPENDIX A (Investigation Letter From 

Inspector Linda Burnett) 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 •Tel:202-628-6776 
o MIAMI FLT STDS GIST OFFICE 

U.S. Department 8600 NW 36TH STREET 

of Transportation ^,..»M'^2?IKl521 

Federal Aviation ^^^^til^^lltt 

Administration (305)716.3400 

July 07, 2008 

AAR AIRCRAFT SERVICES - MIAMI INC 

LOOMER, BRIAN VP GENERAL MAN ACER 

5300NW36ST,BLDG850 

PC BOX 52-2602 

MIAMI, FL 33152-6565 

File Niimbei". 2008SO190220 

Reporting Inspector: BURNETf, LINDA 

The Fedcrnl Aviation Admiiiistrntion (FAA) has investigated an alleged violation that reportedly occurred 

on Saturday, May 17, 2008 in the vicinity of MIAMI, FL. 

This letter is to inform you that the investigation did not establish a violation of the Federal Aviation 

Regulations, and you may consider the matter closed. 

Should you have any questions, feel free to contact our office. 

Additional Information On Back 
APPENDIX B: Declaration of Joseph Miller 

APPENDIX B (Declaration of Joseph Miller) Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 •Tel:202-628-6776 
RECEIVED 

BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION ' - ^^^' 

The Honorable Chief Administrative Law Judge RonnTSiJ^fif/P^'^Mfl DOOICP T 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines 

Respondent 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

DECLARATION OF fOSEPH MILLER 

I, JOSPEPH MILLER, under penalty of perjury, declare as follows: 

1. I am an employee of Brendan Airways, which does business under the name USA 

3000 Airlines. 

2. I serve as the Director of Maintenance for USA 3000. 

3. Prior to April 2008, USA 3000 had been operating an A320 aircraft bearing US 

registry N265AV ("the Aircraft" or "N265AV"). 

4. The Aircraft was owned by International Lease Finance Corporation ("ILFC"). 

5. The Aircraft was leased by ILFC to USA 3000. 

6. During the Spring of 2008, the lease on the Aircraft was coming to an end, so 

USA 3000 hired AAR Corp to perform lease-end heavy maintenance on the aircraft in order to 

be able to return it to the lessor (ILFC) at the end of the lease. 

7. The maintenance on N265AV at AAR took place during April 2008 and May 

2008. 

8. The maintenance performed by AAR for USA 3000 was performed according to 

USA 3000's written instructions for completing the work. 

9. There is no evidence that AAR diverged from the work instructions provided by 

USA 3000, in completing the USA 3000 work. 

APPENDIX B (Declaration of Joe Miller) Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
10. At the time that the Aircraft was provided to AAR to perform lease-end heavy 

maintenance, USA 3000 had no further intent that the aircraft would ever again be operated for 

revenue service by USA 3000, because the lease was coming to an end. 

11. On May 15, 2008, we moved the aircraft and performed an engine check as part 

of the movement, because that sort of check is normal to perform before taxiing. 

12. During the May 15, 2008 engine check, we also checked the control surface 

operation because that is a normal pre-movement check. 

13. The May 15, 2008 control surface operation check included a check of the 

spoilers (as well as other control surfaces). 

14. The May 15, 2008 control surface operation check was successful, with no 

failures and no error messages. I can therefore verify that the spoilers were operational during 

this check. 

15. On May 17, 2008, Captain Frank William Walker and Captain Tony Scot Surratt 

were tasked with performing a maintenance acceptance test flight of the Aircraft. 

16. The maintenance acceptance test flight of the Aircraft was operated out of Miami 

International Airport (MIA) - it departed and returned to MIA. 

17. Walker and Surratt were both employees of Brendan Airways, which does 

business under the name USA 3000 Airlines. 

18. Captain Surratt, Captain Walker and I reviewed the release to service 

documentation, and then the two pilots proceeded to the aircraft, where they each performed a 

separate walk around to ensure that the aircraft was in proper condition 

19. It is not possible to see whether the spoilers are in maintenance mode from the 

ground. 

20. After the walk-around, the pilots entered the cockpit. 

21. During the maintenance acceptance flight, I was present in the cockpit. 

APPENDIX B (Declaration of Joe Miller) Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
22. During the maintenance acceptance flight, the pilots discovered that two sets of 

the spoilers were inoperative. 

23. After discovering the spoiler malfunction during the flight, the pilots consulted 

the guidelines found in the Quick Reference Handbook (QRH) for two sets of spoilers 

inoperative. 

24. The QRH manual called for a normal landing at full flaps, with no speed increase, 

when two sets of spoilers are inoperative. It also includes a multiplier for minimum runway 

length, which MIA easily met. No further guidance is provided in the QRH for two sets of 

inoperative spoilers. 

25. After landing, we analyzed the aircraft and found that two of the spoilers were in 

maintenance mode. 

26. We communicated with AAR about this finding (spoilers found in maintenance 

mode). 

27. AAR reported to us that AAR performed a complete review of their 

documentation to identify when the spoilers could have been placed in the maintenance mode. 

28. Based on their review, AAR concluded that they could find no circumstances 

under which the spoilers could have been placed in the maintenance mode during an AAR 

maintenance operation. 

29. AAR informed USA 3000 that the FAA had dropped the investigation of AAR 

when it became clear that there was no evidence that anyone from AAR placed the spoilers in 

maintenance mode. 

30. We performed a review of the maintenance operations performed by AAR on 

N265AV, including a review of the maintenance records. 

31. We could not find any point during the maintenance in which the spoilers could 

have been left in the maintenance mode, because operational checks of the spoilers made it 

impossible for the spoilers to have been left in the maintenance mode before May 15, 2008. 

APPENDIX B (Declaration of Joe Miller) Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
32. Because of the May 15, 2008 successful control surface operation check, we 

believe that it is likely that the spoilers were placed in the maintenance mode between that May 

15th check and the May 17th flight. 

33. No USA 3000 maintenance was scheduled to be performed on the Aircraft 

between the operational check on May 15th and the flight on May 17th. 

34. Immediately before the maintenance acceptance flight, there was evidence that 

AAR had performed work on the Aircraft on the orders of ILFC, the aircraft owner. 

35. Work performed by AAR for ILFC was not performed under USA 3000 

instructions, and was not performed under USA 3000's control. 

36. Through discovery, we have obtained a copy of the April 16, 2008 agreement 

between AAR and ILFC for the work performed on N265AV at ILFC's direction. That 

Agreement is attached as an exhibit to this Declaration. 

37. Through discovery, we have obtained a copy of the Invoice sent by AAR to ILFC 

for the work performed on N265AV at ILFC's direction. That Invoice is attached as an exhibit to 

this Declaration. 

38. Through discovery, we have obtained a copy of the Parts Consumption Report by 

AAR to ILFC for the work performed on N265AV at ILFC's direction. That Parts Consumption 

Report lists parts consumed during the work performed on N265AV at ILFC's direction, and it is 

attached as an exhibit to this Declaration. 

39. The Parts Consumption Report makes it clear that paint was among the suppliers 

bought and consumed for N265AV under ILFC's direction. 

40.1 believe, but I cannot prove, that the spoilers were placed in the maintenance 

mode by painters who painted the livery of State Transport Russia on the Aircraft between May 

15th and May 17th. 

41. USA 3000 paid for the fuselage to be painted, but USA 3000 was not responsible 

for painting the wings (and did not cause the wings to be painted). 

APPENDIX B (Declaration of Joe Miller) Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
42. It is normal for the leasing company to order work done on their own aircraft at 

the end of a lease, so that the aircraft can be made ready for the next lessee. 

43. Painting of the next lessee's livery on the Aircraft wings (where the spoilers are 

located) was done at ILFC's expense and according to ILFC's instructions. 

I declare under penalty of perjury under the laws of the United States that the 

foregoing is true and correct. 

EXECUTED on the 22nd day of October, 2010. 

'-i^lflitk 

Joe Miller 

USA^OOO Director of Maintenance 

APPENDIX B (Declaration of Joe Miller) Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
42, It is normal for the leasing company to order work done on their own aircraft at 

the end of a lease, so that the aircraft can be made ready for the next lessee. 

43. Painting of the next lessee's livery on the Aircraft wings (where the spoilers are 

located) was done at ILFC's expense and according to ILFC's instructions. 

1 declare under penalty of perjury under the laws of the United States that the 

foregoing is true and correct. 

EXECUTED on the 22nd day of October, 2010. 

Joe Miller 

USA/OOO Director of Maintenance 

APPENDIX B (Declaration of Joe Miller) Washington Aviation Group. PC and the 

Law OfJices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW. Suite 503 

Washington. DC 20007 -Tel: 202-628-6776 
Joseph Miller Exhibits 

APPENDIX B (Declaration of Joe Miller) Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
EXHLBtTK : STATKMKNTQFWORK 

This AIRCRAFT STATEMHNI" 01- WORK is ciucred into by and between AAR 

AIRCRAFT SERVICES - MIAMI. INC. (Formerly AVBORNE HliAVY 

MAINTENANCE, INC.) :md INTERNATIONAL LEASli EINANCE 

CORPORATION. Tlic terms of the General Tcnns Agreement dated February 17, 

2006 arc hereby incorpornlcd herein by reference. Cnpilalizod terms used herein shall 

have Ihc nicaninKs given lo Ihcm in ihc Cicncial Toinii? Agreement. 

SI:CTION I: DF-SCRIPTIONOI-AIRCRAFIVEQUIPMIINT 

Model: A320 

Serial Number: J?f/ tA$N^2 1 ^^ ^ 

Registration: N2fi5AV 

SECTION 2: DESCRIPTION Or WORK 

1.1 The servliics to be proviiloti by Avbonic fur llic Customer's A320 nircriiH with .«rial number 

M'Sf^ l are ns follows: 

A. Accomplish tlic Aiworiliiucss Dircciivcs/Scrvicc ntillctins, ;iloiig with miscclliincoiis 

inoilinciuioi»s/iiiswl)aiion.s (Ciiblii Siirvcillniicc Sysioin, n.vcd ELT, KPf., Interior 

itcconrij^iiraiion niul Sctiif & I'iiiiii of the AifcniO'it \viiig$, horixontal Kiabilixcr and 

fusclagi: logo/llvcr)' .stripes), per ibc Work I'mifciiijc supplied lo Avbornc. PIcn.sc .sec ilic 

followiiie pnuw for tally iiiccl of ;ill the Items tiicliulcd in the Work P;iclcii{;c. nloiijj will) 

(tctnils OH the nircr;iA paim livery. 

1.2 All nssocifiicd non-roininc findings ueiicmtcd by cricli Alr^^'orthulc.ss Dircciivc/Scr\'icc Biillciiiis 

:iiid niodiricnii«nS''insliill»iions will be porfomicd on i\ timo and ninlcrinl biuis. 

I.J All pntis, malerisls. kits .ind rotable requirements associated with this work.scopo arc excluded 

front the fi.xcd bid price and will be hniidtcd m a time ami rnnicrinl b;i.sis. 

IA Any Jiddiiionul jienis added to the work scope that are not liiilcd in tlic work piickagti as SIIOMD in 

Tollowing pages ()rilii.<; Agreement, will be .ivcoiiipli.s'hed on thne-aiiil^inalcrlal basis. 

1.5 All Hon-romino NOT work, SID niappiiig/rep.iir.s, pnrt.s fabiicaiioiw per ciiginccrini; ilrawings, 

paint loiieb-np, .\-rays, fuel tank work, wcUlini;, miK-hliiitii;, specialized tooling, aircrnO polishini;, 

along with nil DMJ and inhoinul lo^ item!., arc not included in llio n.ved bid price niul will be 

pcrromiod on a lime and material bn.'ii.s. 

SECTION 3: FIXED BID PRICING 

The n.xed l)id price lo cover Ihc Work I'aekajje as shown in the following pages |icr the icrnis ami 

coiidilloi)!; as stated above in Section 2 of ilii.<: Agrcemcni will be $91,440. 

SI:CTI0N4: STRAIGHT TIMIE HOURLY RATITlic Straight Time hourly lalior role for thi$ project will lie S'lS.OO per man hour, AM other hourly 

charges and niiirkup* will be per the General Terms ABreeincni daicd Pebrtiary 17,2006. 
SECTION 5: SCHIiDULED REDELIVERY DATE 

Avttonic estimates ihai the dumtion of iliis workscope and .scrvicei will lake 5 days to complete. All spaiiliaics quoted liy Avbonie, whcilicr ornlly or in wriling, shall be cstimnies for lime of eompletlon. 

IN Wl'l"NKSS WMERHOI', the panics liiivc oauscil this Agreement to be executed by tiicir duly authorized 

rcpicsemalivex. 

AAR Alrcrart Services- Miiuni.Uic. Iiiterniilioiiiil Len.sc Kiimnce Corporation 

Signature: J ^ y^-''"'^ Signature: 

Name: /^.^^/i^^^ ^ Name: ^-^.^^^^l/frC e 

Title: ^j^ _ ^^ ^ Title: ^/f^c/e>r-^7~2^^''^-C<=^( 
OAAR 

Aircraft Services — Miami 

FAA Repair Station It XE4R645M 

5300 NW 36th Street 

PO Box 52-2602 

Miami, FL 33152 

www.aarcorp.com 

TelephonB: (305) 871-2104 

Accounting Fax: (786) 265-4360 

Purchasing Fax: (786) 266-4362 

INVOICE 

No. : 003741 Pg: 1 

Bill To Sold To ; Account No. [6] 

Attn: Mr. Richard Poutier, Senior VP - Technical 

International Lease Finance Corporation 

10250 Constellation Blvd, Suite 3400 

Los Angelas, CA 90067 

UNITED STATES 

Tel.-.310-788-1999 

Fax:310-788-1990 

Attn: Mr. Richard Poutier, Senior VP - Technical 

International Lease Finance Corporation 

10250 Conslellalion Blvd, Suite 3400 

Los Angelas, CA 90067 

UNITED STATES 

Tel.: 310788-1999 

Fax:310.788-1990 

Shipped To ; Remit Payment To: 

Attn: Mr. Richard Poutier, Senior VP • Technical 

International Lease Finance Corporation 

10250 Constellation Blvd. Suite 3400 

Los Angelas, CA 90067 

UNITED STATES 

Tel.: 310-788-1999 

Fax:310-788-1990 

AARCoro 

5300 NW 36th Street 

PO Box 52-2602 

Miami,, FL 33152 

Tel.: Telephone; (305) 871-2104 

Fax; Accounting Fax: (786) 265-4360 

MNTW/ONo. 28108-4 Project g : W.0.28108-4 Domestic AWB 

Customer P.O. Contract # : ILFC RESPONSIBILITY InflAWB 

Invoice Date Jul-17-2008 Released :YES Origin 

Due Date AU9-16-2008 C. Label 4 : AIRCRAFT N265AV Transport 

Ship Via License No. ;N/A Nationality 

F.O.B. ORIGIN Expires ;N/A Tflp/Fllght 

Shipped Date Jul-17-2008 Terms ; NET 30 

Our Contact Alice J Cafpanelli 

Line Detail of Charges Cnd Qty Ordered Shipped Unit Price Amount 

Card No. (F-FINAL3} ACCOMPLISH MISC. CUSTpMER REQUEST ON A/Cj N265AV 

Card No. F-FINAL3 1.00 EA 

ACCOMPLISH MISC. CUSTOMER REQUEST ON Wp N26BAV 

NOTE: SEE BREAKDOWN OF CHARGES ON 

ATTACHED SHEET. ADDITIONAL FREIGHT 

CHARGES MAY FOLLOW. 

Charges Summarv 

A321 Labor 

1.00 $ 144,216.1900 EA $ 144,216.19 

% 144,216.19 

Sub Total: $ 144.216.191 

Brett Kooi*, suit AcnunUnl 

Total: mSDl $ 144.216.19 

Copyright (c) PENTAGON KOO Seltwin.lnc. ORIGINAL 
AAR AIRCRAFT SERVICES MIAMI 

WO 28108-4 A/C N26SAV 

PARTS CONSUMPTION REPORT 

ILFC RESPONSIBILITY 

6/25/2008 

PART NUMBER ITEM NUMBER 

iTii^fi-ri'r'ir.-iii-r-T' 

14056 NR5866 

DESCRIPTION 

RTV WHITE "ORG" 

QTY UM 

'^ri^^^^i 

EA 

UNIT COST 

ii^^BI^^ 

12.70 

EXT COST 

mmm 

12.70 

622-5222-020 NR5866 RECEIVER-ADF EA 5,800.00 5,800.00 

CS3204B2.T NR5866 SEALANT EA 14.70 58.80 

A4031PRW NR5872 PLACARD - EXIT SIGN 12 EA 9.90 

iiliiii^ m mmm 

116.80 

2380 SSI OIL ENGINE (Q) 24 EA 9.42 226.08 

PITOT.COVERS SSI PITOT. COVER EA 10.00 40.00 

m ;51ifa mmmmmmmms^ ^«1 i ^ 

S-10002-1300 SSI LIFE VEST 20 EA 40.00 800.00 

NSA938152SA2000 NR5011 SOCKET AIRBUS STANARD P 5 EA 10.00 50.00 

D9251122801200 NR5015 PLATE ASSY, BLANKING EA 210.00 420.00 

TT^Eiri F^ •i3tS 

mmmm' 

EPOXO.88T10 NR5015 EPOXY ADHESIVE EA 10.01 10.01 

FASTWELD10D.S NR5015 FASTWELD 10 EA 17.77 17.77 

NSA935805-20 NR5015 CONDUIT FT 32.95 98.85 

NSA935805-24 NR5015 CONDUIT 10 FT 23.32 233.20 

10P20-44M-F/K4G NR3016 PRIMER 10 KT 483.40 4,834.00 

7i39VYY-POCCNR (A320 NR3016 DECAL EA 240.00 240.00 

7139VYY-ROSSIYA (A32C NR3016 DECAL EA 240.00 240.00 

ECL-G-11161 NR3016 PAPYRUS WHITE KT 411.85 823.70 

ECL-G-11161 NR3016 PAPYRUS WHITE KT 411.85 2,471.10 

ECL-G-11161 NR3016 PAPYRUS WHITE KT / 411.85 2,882.95 

ECL-G-1649 NR3016 PAINT, SIGNAL WHITE KT 669.50 1,339.00 

ECL-G-26229 NR3016 PAINT, SIGNAL BLUE KT 767.35 1,534.70 

ECL-G-3637 NR3016 PAINT, TRAFFIC RED KT 987.75 1,975.50 

ECL-G-6888 NR3016 SIGNAL ORANGE KT 327.02 327.02 • 

ECL-G-92 NR3016 PAINT, TRAFFIC BLACK KT 213.30 426.60 

PACKAGING, HAZMAT NR3016 HAZMAT PACKAGING 32 EA 22.50 720.00 

ABS0305KA2-11 NR5016 SECTION-HOSE 111897ITL 30 FT 15.00 450.00 

MS20006-20 NR5016 BOLT EA 7.51 15.02 

MS20006-22 NR5016 BUSHING EA 6.89 17.78 

NSA936830-22 NR6017 SPLICE 10 EA 47.03 470.30 

14055 NR5018 CLEAR.RTV EA 11.95 11.95 

DP100 NR5018 ADHESIVE EA 8.90 8.90 

E0404-02 NR5018 LAMP 25 EA 5.39 134.75 

PI 08 NR5018 TAPE, DOUBLE SIDE CLOTH 24 EA 13.99 335.76 

RDAX4931 NR5018 SEB TERMINAL PL EA 75.00 600.00 

mm&i ima^Mmi ^ .jm^mmmmm^m W 

i-lf-^{ •^''••^•'••^^"^ ^ laii 

14055 NR5036 CLEAR.RTV EA 11.95 m^ 11.95 

D2527326700200 NR5036 FORK ASSY2524 EA 164.00 328.00 

D2527326700200 NR5036 FORKASSY2524 EA 164.00 164.00 
AAR AIRCRAFT SERVICES MIAMI 

WO 28108-4 A^C N26SAV 

PARTS CONSUMPTION REPORT 

ILFC RESPONSIBILITY 

6/25/2008 

TOTAL 34,129.19 

MATERIALS 28,249.19 
APPENDIX C: Judge Fowler's Decision in Babbitt v. Surratt 

APPENDIX C (Judge Fowler's Decision in Babbitt v. Washington Aviation Group, PC and the 

Surratt) Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
Page 1 

^ I n LexisNexis 

3 of 3 DOCUMENTS 

J. RANDOLPH BABBITT, ADMINISTRATOR, Federal Aviation Administration, 

Complainant, v. TONY SCOT SURRATT and FRANK WILLIAM WALKER, 

Respondents 

NUMBER: Docket SE-18562, SE-18563 

National Transportation Safety Board 

2009 NTSB LEXIS 106 

DATE: September 2, 2009 

ACTION: [*1] 

ORAL INITIAL DECISION 

ISSUEDBY: William E. Fowler, Jr., Chief Administrative Law Judge 

JUDGE FOWLER 

200 Chestnut Street 

Courtroom 300 

Philadelphia, Pennsylvania 

Wednesday, 

August 12,2009 

The above-entitled matter came on for hearing, pursuant to notice, at 10:00 a.m. 

BEFORE: WILLIAM E. FOWLER, JR., 

Chief Administrative Law Judge 

APPEARANCES: 

On behalf of the Administrator: 

RUSSELL CHRISTENSEN, ESQ. 

Federal Aviation Administration 
Page 2 

2009 NTSB LEXIS 106, * I 

1701 Columbia Avenue 

College Park, Georgia 30037 

On behalf of the Respondents: 

JASON DICKSTEIN, ESQ. 

Washington Aviation Group, P.C. and the Law Office of Jason A. Dickstein 

21233 Wisconsin Avenue, N.W. 

Suite 503 

Washington, D.C. 20007 

202-628-6776 

JESSICA STUBBS, ESQ. 

Washington Aviation Group, P.C. and the Law Office of Jason A. Dickstein 

21233 Wisconsin Avenue, N.W. 

Suite 503 

Washington, D.C. 20007 

202-628-8947 

This has been a proceeding before the National Transportation Safety Board held pursuant to the provision of the 

Federal Aviation Act of 1958 as that Act was subsequently amended on the appeals of Tony Scot Surratt and Frank 

William Walker from Orders of Suspension dated April 8, 2009, issued by the Regional Counsel, Southern Region of 

the Federal Aviation [*2] Administration, which purports to suspend Respondent Surratt's airline transport pilot 

certificate number (omitted) for a period of 180 days, and also Respondent Walker's airline transport pilot certificate 

number (omitted) for a period of 180 days. 

This has been a consolidated proceeding on the appeals of Respondents Surratt and Walker. 

The Administrator's Orders of Suspension as duly promulgated, pursuant to the National Transportation Safety 

Board's Rules of Practice in Air Safety Proceedings, as I mentioned earlier, was issued by the Regional Counsel of the 

Southern Region of the Federal Aviation Administration. 

This matter has been heard before this United States Administrative Law Judge and is provided by the Board's 

Rules of Practice, specifically Section 821.42 of those rules, while it is not mandatory, according to that section of the 

rules, that as the Judge in this proceeding I issue an Oral Initial Decision. I'm going to do that at this time. 

Following notice to the parties, this matter came on for trial on August 11th and 12th in Philadelphia, Pennsylvania. 

The Complainant in this proceeding was very ably represented by Counselor Christensen, Esquire, of the Regional [*3] 

Counsel's Office, Southern Region of the Federal Aviation Administration. The Respondents were represented by 

Counselors Dickstein and Stubbs, Esquire, and both have done a very admirable job, I might add. 

Both parties have been afforded the opportunity to offer evidence, to call, examine, and cross-examine witnesses. In 

addition, the parties were afforded the opportunity to make final argument in support of their respective positions. 
Page 3 

2009 NTSB LEXIS 106, *3 

I have reviewed the testimony and the documentary exhibits adduced by counsel. The Administrator has had 21 

Exhibits. The Respondent has had 11 Exhibits. The Administrator has had the testimony of four witnesses. The 

Respondent has had the testimony of three witnesses. Two of those witnesses of the Respondent were the two 

Respondents, themselves. Respondent Surratt and Respondent Walker. 

I have reviewed the totality of the testimony and the documentary exhibits, and as you know the burden of proof in 

a proceeding of this type is on the Administrator. 

The Administrator has set forth two Orders of Suspension here with 21 specific paragraphs set in the Orders against 

Captain Tony Scot Surratt, and against Captain Frank William Walker there were 12 paragraphs. ['*4] 

I'm going to try to be as brief and as concise as I can. 

This case in my humble estimation rises or falls on what the two Respondents knew, what knowledge they 

possessed prior to takeoff on May 17th, 2008, fi-om Miami International Airport. 

We have the testimony of four witnesses on behalf of the Administrator, Witness Laurence Johnson, Principal 

Operations Inspector; Witness Philip Stauffer is also a Principal Operations Inspector, Witness Thomas W. Welsh, who 

is an Inspector at USA3000 Airlines, the company we're dealing with in this proceeding and witness Frank Miller. All 

four of these gentlemen are exceedingly experienced. 

Inspector Stauffer was declared to be an expert, particularly in maintenance, maintenance engineering. And to make 

a long story short, the witnesses of the Administrator all testified validly and substantiated many of the numbered 

paragraphs set forth in both Orders of Suspension against Respondent Surratt and Respondent Walker. 

Respondent had three witnesses. Respondent Surratt, Respondent Walker, and Witness Paul O. Dow, Jr., who was 

qualified as an expert. Witness Dow has 4,300 hours in the A320 and has 11,000 hours as an airline transport 

certificated pilot. [*5] 

I have reviewed the testimony in this case. The two Respondents have testified and one of the Administrator's 

witnesses, Mr. Frank Miller, has testified that prior to takeoff, even though the Respondents in this aircraft knew there 

were spoiler difficulties, spoilers 3 and 5 were, as counsel for the Administrator has ably stated, locked out. 

Respondents and other members present in the aircraft including Witness Miller who has testified on behalf of the 

Administrator, that computer buttons were reset and that the ECAM panel prior to takeoff was green. The pilots. 

Respondent Walker was the flying pilot, Respondent Surratt was tending to the other duties of a First Officer. 

The evidence here in my determination is persuasive, logical, and compelling that the ECAM panel prior to takeoff 

or just before takeoff was green or clear, however you want to deem it when this flight took off from Miami 

Intemational Airport. Some 10, 15, 20 minutes later, messages came on the ECAM of the spoiler problems. 

The flying pilot, or I should say pilots, conversed about this problem, referred to the QRH, Quick Reference 

Handbook, which is the National Operation Manual reference book and decided since ['*6] they had no prior 

knowledge before they took off with these spoiler difficulties; that even since they then had knowledge of the spoiler 

difficulties, that they would proceed with their flight, as they did, approximately two hours or more before they 

attempted their first landing, which had to be aborted because as you have heard during the testimony in this 

proceeding, the left wing fence as the testimony has stated, as opposed to the Administrator's Order which says the left 

wingtip, scraped the runway. So, the first attempt at landing was aborted and there was a second uneventful landing. 

I have heard a number of these cases, not similar to this one, but my point in raising this is there was no accident, 

no damage, no injuries, no fatalities, and that to me is always a bit refreshing to have a case like this because so many 

times they are just the opposite. 
Page 4 

2009 NTSB LEXIS 106, *6 

The burden of proof, as I stated earlier, is on the Administrator to prove by a fair and reasonable preponderance of 

the probative, reliable, and substantial evidence, the charges and allegations as set forth in these Orders of Suspension. 

It is my determination the Administrator's evidence as to what the Respondents knew prior [*7] to takeoff, the 

Administrator's evidence is lacking based on the totality of what we've had during the course of this two day 

proceeding. 

We've had the testimony of both Respondents, as well as the last witness of the Administrator, Mr. Frederick 

Miller, who is the Director of Maintenance for USA3000 Airlines, who concurred with the two Respondents' testimony 

that immediately prior to takeoff the ECAM panel was clear, if not green. There was some testimony that it was green. 

And thereby and thereupon the flight took off 

Administrator's witnesses have testified to the opposite result concerning the ECAM panel prior to takeoff and 

notice to the pilots, but I don't believe, and it is my determination that the Administrator's case is persuasive and 

compelling enough to rebut the total testimony adduced on the Respondents side of the case. 

We can look at this case, I believe in another way. Both Respondents are airline transport rated certificated pilots 

who are held to the highest degree of care, judgment, and responsibility. Now, the evidence is on the Respondents' side, 

I believe, in this case that the Respondents did not know when they took off the full situation of the spoilers. [*8] 

Three witnesses, as I mentioned, have testified the ECAM panel was clear, indicated green, and they took off 

Now, the question after that comes down to what did Respondents Surratt and Walker do when they got the 

message during the flight some 20, 25 minutes later about the inoperable spoilers. Respondent Surratt is the 

Pilot-in-Command of this flight. Respondent Walker was the flying pilot. As Pilot-in-Command, Captain Surratt within 

the realm of his authority as Pilot-in-Command, continued the flight as opposed to the contention of the Federal 

Aviation Administration, that when they were afforded this message during the flight about the spoiler situation that 

they immediately end and abort the flight. 

Administrator's A-7, which is a letter January 11, 2008, to Inspector Laurence Johnson issued by Joseph Guhin, 

Director of Safety and Regulatory Compliance for USA3000 Airlines, and I will read a certain portion of that letter. The 

fourth paragraph on the first page of this Exhibit A-7 said during the flight control check, during the taxi checklist the 

crew noted there was an ECAM caution of LAF degrader. It was cleared by resetting the spoiler elevated computer SEC 

push buttons. According ['*9] to both Captain Surratt and Joe Miller, this caution is not uncommon, and was quickly 

cleared. The aircraft had a clean upper ECAM page prior to the uneventful takeoff 

While airborne, during routine page call-ups the ECAM panel displayed symmetrical spoiler 3, 5 Left R spoiler 

amber indications. During the flight a pilot left the cockpit and returned noting two spoilers on the left wing were 

floating. 

A USA3000 Airline Inspector's employee took some pictures of those spoilers, noted that the rudder trim going out 

of limits, and Captain Walker disengaged the autopilot and manually trimmed the aircraft. 

The paragraph goes on to say about somewhat difficulty there was in landing the aircraft and with the scrape of the 

runway by the left wing fence. 

As I mentioned, the totality of the seven witnesses that have testified in this proceeding, among the four, one was 

designated an expert. Inspector Johnson, and there was one expert witness, Paul O. Dow, on behalf of the Respondent. 

You may recall Witness Dow, who was present during the course of this proceeding, said that he concurred 

wholeheartedly with the actions of Respondents Surratt and Walker and his testimony also encompassed the ['*10] 

situation that has often occurred on a maintenance acceptance test flight which has the aircraft involved, which has been 

laid up for quite a while, that it is not uncommon for the things that occur in the flight we're concerned with here that 
Page 5 

2009 NTSB LEXIS 106,-^10 

did occur, and as both the Respondents and Witness Miller testified, this caution as they exercised by resetting the 

computer buttons which cleared the ECAM panel and allowed them to takeoff in an uneventful takeoff with no 

problems in their mind. And as they have both testified to, both Respondents were not cognizant of a serious spoiler 

problem until during the flight, they were later notified and they made their decisions, particularly Respondent Surratt 

as Pilot-in-Command, to continue the flight, which they did. And other than the wing fence scraping the runway on the 

second landing attempt, the landing was uneventful and as I said, fortunately, this was merely an incident and not an 

accident. 

So that, ladies and gentlemen, as I said I thought the Respondents' case successfully rebutted the Administrator's 

case. Much has been made of the utilization or non-utilization of the minimum equipment list prior to takeoff I think 

the Respondents [*11] successfully were persuasive and compelling in their evidence that the minimum equipment list 

was not applicable or apropos since the ECAM panel was cleared and the Respondents took off accordingly. 

So that, ladies and gentlemen, I'm sure you get the drift of my decision here now which to use a colloquialism, 

Respondents have carried the day. And I will make my specific following Findings of Fact and Conclusions of Law 

accordingly. 

Taking up first Captain Tony Scot Surratt, his Order of Suspension. 

1) Respondent Surratt admits and it is found that he was and is the holder of airline transport pilot certificate 

number (omitted). 

2) The Respondent admits and it is found that all times relevant herein he was employed as a pilot for Brendan 

Airways, LLC. 

The remaining Paragraphs 3, 4, 5, 6, and 7,1 will not spell those out because the Respondent has admitted all of 

those allegations as set forth in Paragraphs 3, 4, 5, 6, and 7. And I will find and admit accordingly where those 

numbered paragraphs are concerned. 

8) It is found that the amber LAF degraded message on the aircraft's ECAM panel comes on when there is a failure 

of one of the aircrafts spoiler servo jacks. 

9) It is found that [""12] during the flight but prior to takeoff the ECAM panel indicated that the following wing roll 

spoilers were not operational and/or locked out. It is my determination that designated Paragraphs C and D dealing with 

the right wing spoilers number 3 and 5 were found accordingly. 

10) It is found that during the flight but prior to takeoff Respondent Surratt was not aware that the aircraft's ECAM 

indicated that the following wing roll spoilers were not operational and were blocked out, but that the right wing spoiler 

number 3 and right wing spoiler number 5 were indicated accordingly. It is my determination that appropriate action 

was taken to clear the ECAM panel and the takeoff quickly followed thereafter. 

11) It is found that pursuant to the aircraft's minimum equipment list, the aircraft cannot be dispatched when two or 

more spoilers on either wing are in an inoperable condition. But based on the totality of the evidence and the facts and 

circumstances we've had adduced during the course of this proceeding, the minimum equipment list immediately prior 

to takeoff was not operable and should not have been invoked at the time prior to takeoff, and was not invoked. 

12) The Respondents admit [*13] and it is found that notwithstanding the above, during the flight the Respondent 

Surratt operated the aircraft during the takeoff with no knowledge of the following inoperative instruments: C and D of 

Paragraph 12, which is the right wing roll spoiler number 3, and D, the right wing roll spoiler number 5. 

13) It is found that during the flight and after 20 minutes after takeoff, the ECAM panel once again indicated that 

the following wing spoilers were not operational and/or were locked out: C and D as set forth in Paragraph 13 of that 
Page 6 

2009 NTSB LEXIS 106, * 13 

Order. 

14) It is found that during the flight the flying pilot, Frank William Walker, disconnected the autopilot because the 

rudder trim was not operating properly and was out of range. 

15) It is found and the Respondent admits that during the flight Respondent was informed that two flights [sic] on 

the left wing were floating by a person who had visually inspected the left wing while on board the aircraft. 

16) It is found that during the flight when Respondent first attempted to land the aircraft at Miami Intemational 

Airport, the aircraft's left wing fence contacted the runway causing damage to the left wing fence. 

17) The Respondent admits and it ["* 14] is found that during the above referenced inoperable ring roll spoilers 

during the flight your first landing attempt was aborted. 

18) During the flight it is found that the Respondents operated the aircraft which then was in an unairworthy 

condition but the Respondents had no notice until that time that the aircraft was in an unairworthy condition. 

19) It is found that during the flight the Respondent Surratt failed to discontinue the flight after the unairworthy 

mechanical, electrical, or structural condition occurred with reference to the condition of the spoilers. 

20) It is found that during the flight the Respondent did not operate the aircraft in a careless manner so as to 

endanger the life or property of another. 

21) It is found by reasons of the foregoing, the Respondent did not violate the following aviation regulations and 

I'm incorporating by reference as set forth in Paragraphs A, B, C, and D of Paragraph 21 of the aforesaid Order of 

Suspension as it was based on the totality of the evidence, coupled with the documentary exhibits, that there was a 

non-violation of Section 91.23(a), Section 91.213(a), and Section 91.7(a), and Section 91.7(b) of the aforesaid Federal 

Aviation [•* 15] Regulations. 

22) This Judge finds that safety in air commerce or air transportation and the public interest does not require the 

affirmation of the Administrator's Order of Suspension as to Captain Tony Scott Surratt, dated April 8th, 2009, because 

of the previously alluded to non-violations of the four PARS sections mentioned earher. 

ORDER 

IT IS ORDERED AND ADJUDGED THAT the Administrator's Order of Suspension as to Captain Tony Scot 

Surratt, dated April 8th, 2009, be, and the same, hereby is dismissed and reversed. 

This order is issued by William E. Fowler, Jr., a United States Administrative Law Judge. 

ADMINISTRATIVE LAW JUDGE FOWLER: As to Captain Frank William Walker I will now proceed to make 

the following specific Findings of Fact and Conclusions of Law. 

1) That Respondent Walker admits Paragraphs 1, 2, 3,4, 5, 6, and 7, and I incorporate those admissions of the 

Respondent Walker by reference as those numbered paragraphs 1 through 7, pertaining to the Administrator's Order of 

Suspension are set forth regarding Respondent Walker. 

8) It is found that the amber LAF degraded message on the aircraft's ECAM panel came on as it did when there was 

a failure of one of the aircraft ["* 16] spoiler servo jacks. 

9) During the flight but prior to takeoff it is found that the ECAM panel indicated that it was clear and green even 

though the right wing spoiler number 3 and right wing spoiler number 5 had been locked out and both Respondents as 

they have testified, the ECAM panel was subsequently cleared with the aforementioned four green indicators and the 
Page 7 

2009 NTSB LEXIS 106, "^16 

takeoff proceeded. 

10) It is found that during the flight but prior to takeoff. Respondent Walker was not aware that the ECAM panel 

had indicated that the roll spoilers were not operational and/or were locked out because computers were reset clearing 

the aforesaid ECAM panel enabling the Respondents to takeoff with apparently the spoilers problem not being 

problematical at that time. 

11) It is found that pursuant to the aircraft's minimum equipment list which is acknowledged by its pilots that the 

aircraft cannot be dispatched when two or more spoilers on either wing are in an inoperable condition, the Respondents, 

both Surratt and Walker, were not knowledgeable because the ECAM panel stated clearance or it was green for them to 

make the takeoff as they did. 

12) The Respondent admits notwithstanding the above, that during [•* 17] the flight Respondent Walker operated 

the aircraft during takeoff and thereafter with the following inoperative instruments and I'm incorporating by reference 

under Paragraph 12, Paragraph C and D right wing roller and the right wing roll spoilers number 3 and 5. 

13) It is found that during the flight and within 20 minutes after takeoff the ECAM panel once again indicated that 

the following right wing spoilers were not operational and/or were locked out ~ right wing spoiler number 3 and right 

wing spoiler number 5. As the evidence would indicate, this is the first knowledge that both Respondents had where the 

ECAM panel were concerned that they had any knowledge of the spoiler problem. 

14) It is found that during the flight when Respondents first attempted to land the aircraft at Miami Airport, the 

aircraft's left fence connected with the runway causing damage to the left wing fence. 

15) It is found that due to the above referenced inoperable wingtip spoilers during the flight your first landing 

attempt was aborted. 

16) The Respondent operated the aircraft in an unairworthy condition, but had no knowledge at the time when it 

first became unairworthy that it was unairworthy. 

17) During [•* 18] the flight the Respondent did not operate the aircraft in a careless manner so as to potentially 

endanger the life or property of another. 

By reason of the foregoing, there was a non-violation of the Federal Aviation Regulations and I'm incorporating by 

reference those sections without spelling them out, Section 91.13(a), Section 91.213(a), and Section 91.7(a) as there was 

a non-violation of these sections by Respondent Walker. 

18) This Judge finds that safety in air commerce or air transportation and the public interest does not require the 

affirmation of the Administrator's Order of Suspension dated April 8th, 2009, as it applies to Respondent Walker due to 

the non-violation by Respondent Walker on the aforesaid mentioned regulations alluded to that were not violated by 

Respondent Walker based on the totality of the evidence, coupled with the I documentary exhibits as afforded during 

the course of this proceeding. 

ORDER 

IT IS ORDERED AND DECREED THAT the Administrator's Order of Suspension as to Captain Frank William 

Walker is hereby reversed and dismissed because of the non-violations of the aforementioned Federal Aviation 

Regulations. 

This Order is issued by William E. Fowler, [*19] Jr., United States Administrative Law Judge. 

EDITED ON September 2, 2009 
Page 8 

2009 NTSB LEXIS 106, * 19 

WILLIAM E. FOWLER, JR. 

Chief Administrative Law Judge 

APPEAL 

JUDGE FOWLER: Where both Respondents are concemed. Captain Surratt and Captain Walker, on the issue of 

appeal, either party may appeal the Judge's Oral Initial Decision. 

The Notice of Appeal, if there is one, has to be filed within ten days following the issuance of the Judge's Oral 

Initial Decision which was issued on August 12th, 2009. 

In order to perfect the appeal, the Appellant must file a brief within 50 days of the Judge's Oral Initial Decision 

setting forth the Appellant's objections to the Judge's Oral Initial Decision. 

The Notice of Appeal and the brief shall be filed with the National Transportation Safety Board, Office of Judges, 

490 L'Enfant Plaza, East Southwest, Washington, D.C, 20594. 

If no appeal to the Board from either party is received, or if the National Transportation Safety Board of its own 

volition does not file a motion to review the Judge's decision within the time allowed, then the Judge's decision shall 

become final. 

Timely filing of such an appeal, however, shall stay the order as set forth in the Judge's decision. 

Off[*20] the record. 

(Off the record.) 

JUDGE FOWLER: Let the record indicate that counsel for the Administrator has stated that the Administrator will 

be filing a Notice of Appeal from the Judge's Oral Initial Decision. 

If there's nothing further, at this time I would declare the hearing closed. But before we go off the record, I would 

like to thank counsel for the Administrator, as well as counsel for the Respondents for their very able, industrious, and 

erudite efforts on behalf of their respective clients. 1 would also like to express my thanks to all the witnesses for their 

help, assistance, and cooperation during the course of this proceeding. Thank you all very much. 

We stand adjourned. 

(Whereupon, the hearing in the above-entitled matter was closed.) 

CERTIFICATE 

This is to certify that the attached proceeding before the 

NATIONAL TRANSPORTATION SAFETY BOARD 

IN THE MATTER OF: Tony Scot Surratt and 

Frank William Walker 

DOCKET NUMBER: SE-18562; SE-18563 

PLACE: Philadelphia; Pennsylvania 
Page 9 

2009 NTSB LEXIS 106, *20 

DATE: August 12, 2009 

was held according to the record, and that this is the original, complete, true and accurate transcript which has been 

compared to the recording accomplished at the hearing. 

Timothy [*21] J. Atkinson, Jr 

Official Reporter 

Legal Topics: 

For related research and practice materials, see the following legal topics: 

Transportation LawAir TransportationCertificatesAirman CertificatesTransportation LawAir 

TransportationPersonnelGeneral OverviewTransportation LawAir TransportationU.S. National Transportation Safety 

Board Procedures 
APPENDIX D: NTSB's Decision Affirming Babbitt v. Surratt (on appeal) 

APPENDIX D (NTSB's Decision in Babbitt v. Surratt) Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
Page I 

LexisNexis 

2 of 3 DOCUMENTS 

J. RANDOLPH BABBITT, Administrator, Federal Aviation Administration, 

Complainant, v. TONY SCOT SURRATT and FRANK WILLIAM WALKER, 

Respondents 

NUMBER: Order No. EA-5514; 

Dockets SE-18562 and SE-18563 

National Transportation Safety Board 

2010 NTSB LEXIS 31 

DATE: March 23, 2010, 

Adopted 

ACTION: ['*l] 

OPINION AND ORDER 

ISSUEDBY: National Transportation Safety Board 

SERVED: March 24, 2010 

The Administrator and respondents have appealed from the oral initial decision of Chief Administrative Law Judge 

William E. Fowler, Jr., issued on August 12, 2009, following a 2-day evidentiary hearing, nl The law judge found that 

the Administrator did not prove the allegations in the complaint, in which the Administrator charged respondents with 

operating an Airbus A320 while it was in an unairworthy condition. n2 The Administrator alleged that respondents 

committed the regulatory violations when they operated the A320 on May 17, 2008, on a maintenance acceptance flight 

that departed from and retumed to Miami Intemational Airport, in which two spoilers on each wing of the aircraft were 

inoperative. The Administrator's complaint ordered a suspension of respondents' airline transport pilot (ATP) 

certificates for a period of 180 days each. We deny the Administrator's appeal, and dismiss respondents' appeal, based 

on their lack of timeliness in filing the appeal brief 

[*2] 

nl A copy of the initial decision, an excerpt from the hearing transcript, is attached. 

n2 The Administrator charged both respondents with violating 14 C.F.R. §§ 91.7(a), which prohibits operation 

of a civil aircraft that is not in an airworthy condition; 91.13(a), which prohibits careless or reckless operations 

so as to endanger the life or property of another; and 91.213(a), which states that, except as otherwise provided, 

no person may take off an aircraft with inoperative instruments or equipment installed without meeting the 
Page 2 

2010NTSB LEXIS 31,'^2 

requirements of § 91.213. The Administrator also charged Respondent Surratt with violating § 91.7(b), which 

states that the pilot-in-command (PIC) of a civil aircraft shall discontinue the flight when unairworthy 

mechanical, electrical, or structural conditions occur. 

In the orders of suspension, which the Administrator issued on April 8, 2009, and submitted as the complaints in 

this case, the Administrator alleged that, prior to taking off, an amber "LAF DEGRADED" n3 message appeared on the 

aircraft's Electronic Centralized Monitor (ECAM) in the cockpit, and that such a message appears when a failure of one 

of the aircraft's spoiler servojacks has occurred. [*3] The complaints fiirther stated that, also prior to takeoff, the 

ECAM indicated that spoiler Nos. 3 and 5 on both the left and right wings were not operational and/or were locked out, 

and that respondents were aware of this indication. The complaints alleged that the aircraft's Minimum Equipment List 

(MEL) does not allow operation of the aircraft when two or more spoilers on either wing are in an inoperable condition. 

The complaints also alleged that, notwithstanding the indications on the ECAM, respondents took off, and that, within 

20 minutes of taking off the ECAM once again indicated that the spoilers at issue were not operational and/or were 

locked out. The complaints stated that, during the flight, a person who had visually inspected the left wing while 

onboard the aircraft informed respondents that two spoilers on the left wing were "floating," and that respondents 

aborted their first landing attempt at Miami after the aircraft's left wing tip contacted the runway and caused damage to 

the left wing tip. 

n3 The evidence in the record provides that the acronym "LAF" indicates "load alleviation function." 

[*4] 

At the hearing, n4 the Administrator called four witnesses to testify and presented numerous exhibits. The FAA 

principal operations inspector for respondents' employer, USA 3000 Airways, Laurence Johnson, as well as an FAA 

principal avionics inspector for general aviation repair stations, Philip Stauffer, both testified. Inspector Johnson 

identified an FAA-approved checklist applicable to USA 3000's operation of A320s, as well as a portion of the 

FAA-approved flight crew operating manual that applies to USA 3000's operation of A320s. Exhs. A-2 and A-3. 

Inspector Johnson testified that both checklists require checking the flight controls prior to takeoff, and that checking 

the spoilers involves the captain moving the stick in the cockpit while the copilot observes the ECAM for indications 

that the spoilers moved in response to the captain's input on the stick. Inspector Johnson stated that the flight controls 

that the pilots must check include the spoilers, and that Airbus defines spoilers as a primary flight control. Tr. at 44. 

Inspector Johnson testified that the ECAM should display four green arrows on each side, indicating that all spoilers are 

working normally. Inspector Johnson [*5] opined that, if the ECAM indicates an abnormality with the spoilers, the 

pilot should refer to the manuals to interpret what he or she observes on the ECAM, and contact the maintenance 

department about the abnormality. Inspector Johnson stated that a pilot can re-set the ECAM by pressing a button. 

Inspector Stauffer testified that the ECAM should not display green unless the spoilers have a "healthy hydraulic 

pressure." Tr. at 96. 

n4 Prior to hearing, the law judge consolidated the cases, and both parties filed motions for summary judgment 

under our Rules of Practice. The law judge denied both motions, based on his determination that genuine issues 

of material fact existed concerning whether respondents knew that the aircraft was in an unairworthy condition 

prior to and during the flight at issue. As such, the law judge ordered a hearing for the case. 

Inspector Johnson further testified that, if a spoiler is in "maintenance mode" in an A320, then it will not respond to 

input from the cockpit because it will not have [""6] hydraulic pressure; similarly. Inspector Stauffer stated that a spoiler 
Page 3 

2010NTSB LEXIS 31,'*6 

cannot respond to inputs from the cockpit when it is in such a manual position. Inspector Stauffer testified that an 

aircraft's spoilers should never be in maintenance mode for flight, according to the USA 3000 Airbus Manual. Tr. at 94; 

Exh. A-9. Inspector Johnson stated that, if the spoilers on an A320 are not functioning, then this circumstance changes 

the lift and drag components of the wing. Therefore, Inspector Johnson testified that a pilot's discovery that spoilers are 

not functioning should cause the pilot to consider immediately returning to a suitable location for landing. Inspectors 

Johnson and Stauffer both testified that respondents should not have taken off in the A320 after receiving the ECAM 

warning, because they could not know how the aircraft would fly and land in such a configuration. Inspector Stauffer 

stated that the FAA received a statement from USA 3000 indicating that, after the May 17, 2008 flight, they found the 

spoilers in a manual position. n5 

n5 Tr at 96, 100, 102; Exh. A-10 (e-mail message from Joe Miller, director of maintenance and engineering for 

USA 3000, stating that employees from USA 3000 discovered the spoilers in "maintenance mode" after the 

flight). 

[*7] 

Inspector Stauffer identified tabular data from the flight data recorder (FDR) on the A320 at issue. Exh. A-11. 

Inspector Stauffer testified that the data indicates that the pilots performed the flight control checks prior to takeoff, and 

that, during the checks, half the spoilers responded to inputs from the cockpit normally, while the other half did not. 

Based on this FDR data. Inspector Stauffer opined that the flight control check was unsuccessful, and that the ECAM 

must have shown spoiler numbers in amber, rather than green, and indicated that the spoilers were inoperative. 

Inspector Stauffer also stated that the FDR data indicates that respondents continued with the flight, rather than taking 

the aircraft back to the gate for maintenance. Inspector Stauffer also identified excerpts from the MEL applicable to the 

A320 at issue, and testified that the MEL requires eight operative spoilers for flight, and does not allow spoiler Nos. 3 

and 5 to be inoperative. On cross-examination. Inspector Stauffer identified a copy of a 1976 airframe and powerplant 

manual, which categorizes spoilers within a secondary group of control surfaces. 

The Administrator also called Thomas Welsh, a quality [*S] inspector of aircraft for USA 3000 who was on the 

May 17, 2008 flight, to testify. Inspector Welsh stated that he saw spoiler Nos. 3 and 5 floating up approximately 8 to 

10 inches on the left wing about 15 to 20 minutes into the flight. Inspector Welsh testified that, based on how high he 

observed the spoilers floating, he knew that they did not have hydraulic fluid. Inspector Welsh also stated that, after 

they were on the ground, he checked the aircraft's actuator and saw spoiler Nos. 3 and 5 in "M" mode, which indicated 

that the pilot could not control them with inputs from the cockpit. 

The Administrator concluded the case-in-chief by calling Joe Miller, who was in the cockpit with respondents on 

the flight in question, to testify. Mr. Miller confirmed that he and the pilots saw the "LAF DEGRADED" message on 

the ECAM prior to takeoff, but that this message did not indicate a serious problem to stop them from taking off. Mr. 

Miller further stated that he reset the spoiler elevator computers (SEC) in an attempt to clear the "LAF DEGRADED" 

message, and that, when he and respondents did not see any amber warnings appear on the ECAM, they proceeded with 

the takeoff. Mr. Miller recalled [*9] that, during the flight, the aircraft "[had] some yaw to it," so they turned the 

autopilot off and re-trimmed the aircraft. Tr. at 223. Mr. Miller also recalled that, once they had reached an altitude of 

about 39,000 feet, an observer informed them that he saw two spoilers floating on the left wing. Mr. Miller testified that 

Respondent Surratt consulted the Quick Reference Handbook (QRH) in the cockpit, and determined that they could 

continue with the flight, but would need to increase their landing distance. Mr. Miller described the first attempted 

landing as "unnerving" (Tr. at 226), and recalled that, after landing, an inspection group that he directed informed him 

that two of the spoilers were in "M" mode (Tr. at 228). Mr. Miller opined that the ECAM was faulty in that it did not 

register the spoilers as inoperative, and that it was reasonable for respondents to think that it was a spurious message. 

Mr. Miller stated that he did not believe respondents reacted in an unreasonable manner under the circumstances. 
Page 4 

2010 NTSB LEXIS 31,'*9 

In response to the Administrator's case, respondents both testified on their own behalf. Both respondents stated that 

they had conducted several previous maintenance acceptance ['*10] flights, and they both have held ATP certificates 

with type ratings in A320s for a lengthy period of time. Respondent Surratt recalled that, during the flight control 

checks that they performed prior to taking off, they noticed several warnings on the ECAM, including an audible chime 

and message indicating that spoiler Nos. 3 and 5 were inoperative. After resetting the SEC, Respondent Surratt stated 

that they again "got multiple warnings," and then reset an additional set of computers. Finally, Respondent Surratt 

recalled that they "had nothing left except for LAF degraded," which he described as not unusual. Tr. at 287. n6 Both 

respondents testified that an A320 can safely take off while this message is on, and that they had seen the message on 

other flights. Both respondents also stated that they believed they only saw the "LAF DEGRADED" message prior to 

taking off, and that they did not know that spoiler Nos. 3 and 5 were in maintenance mode until after the flight. 

n6 Respondent Surratt testified that Airbus originally intended the "LAF DEGRADED" message to ease 

turbulence, but that it had never successfully functioned to do so. Tr. at 287. 

[*ll] 

Approximately 20 to 25 minutes into the flight. Respondent Surratt testified, an ECAM message appeared 

indicating that spoiler Nos. 3 and 5 were inoperative, and that he cleared the ECAM while Respondent Walker operated 

the aircraft. Respondent Surratt recalled referencing the QRH, which he described as indicating that this was "no 

problem," and that he need not land the aircraft immediately, but that they should use a "1.15 ... runway multiplier." Tr. 

at 290. n7 Respondent Walker stated that the ECAM also did not direct them to land immediately; Respondent Walker 

opined that landing earlier would not have made a difference with regard to the spoiler issue. Respondent Surratt 

testified that they continued the flight, but that the warning remained on. n8 Respondent Surratt also stated that he did 

not consult the MEL during the flight, but that, had he known that spoiler Nos. 3 and 5 were inoperative prior to the 

flight, he would have referenced the MEL and not taken off. 

n7 On cross-examination. Respondent Surratt acknowledged that the QRH does not address the specific 

situation in which spoiler Nos. 3 and 5 are in maintenance mode during a flight. 

[*12] 

n8 Respondent Surratt opined that continuing the maintenance acceptance flight had other benefits, such as 

burning off fuel and providing the opportunity to identify other potential problems with the aircraft after it had 

undergone maintenance. 

With regard to the landing. Respondent Surratt recalled that the aircraft "seemed to bounce" on their first approach, 

and that it "hard roll[ed] left," so he firewalled the throttles and initiated a go-around, after which they had a successful 

approach. Tr. at 291. Respondent Surratt testified that the aircraft sustained damage to its vertical wing tip vents. At the 

conclusion of his testimony. Respondent Surratt identified a newsletter that Airbus released 2 months after the flight at 

issue, which instructs pilots to perform a new flight control check if they have any indication of spoiler problems. Exh. 

R-7. Both respondents also identified copies of reports and the National Aeronautics and Space Administration (NASA) 

receipts that they submitted under the Aviation Safety Reporting Program (ASRP) following the flight at issue. n9 

n9 Under the ASRP, the Administrator may waive the imposition of a sanction, despite the finding of a 
Page 5 

2010 NTSB LEXIS 31,* 12 

regulatory violation, as long as certain other requirements are satisfied. Aviation Safety Reporting Program, 

Advisory Circular 00-46D at P 9c (Feb. 26, 1997). The Program involves filing a report with NASA, which may 

obviate the imposition of a sanction where (1) the violation was inadvertent and not deliberate; (2) the violation 

did not involve a criminal offense, accident, or action found at 49 U.S.C. § 44709; (3) the person has not been 

found in any prior FAA enforcement action to have committed a regulatory violation for the past 5 years; and 

(4) the person completes and mails a written report of the incident to NASA within 10 days of the violation. 

[*13] 

Respondents also called Paul Dow to provide expert testimony on the subject of A320 operations. Mr. Dow stated 

that Airbus aircraft are known for being subject to spurious messages after undergoing heavy maintenance, as the 

aircraft at issue had undergone. Mr. Dow opined that respondent's belief that the aircraft was fit for takeoff was 

reasonable, and that the QRH does not advise pilots to land an aircraft when two sets of spoilers are inoperative, but 

instead only provides an increased factor for landing distance. Mr. Dow fiirther testified that the MEL is not applicable 

during flight. 

At the conclusion of the hearing, the law judge issued an oral initial decision, in which he determined that the 

Administrator's evidence that respondents knew that spoiler Nos. 3 and 5 were inoperative prior to flight was "lacking." 

Initial Decision at 523-24. The law judge held that the testimony at the hearing established that the ECAM panel was 

"clear, if not green," prior to takeoff (id. at 524), and that respondents' testimony that the "LAF DEGRADED" warning 

is not a reason for concern was persuasive. The law judge also mentioned that Mr. Dow had testified that he concurred 

with the actions respondents ['*14] took under the circumstances. The law judge concluded that the MEL was not 

applicable to the aircraft at issue, because respondents cleared the ECAM panel. The law judge did not find that 

Respondent Surratt had erred in choosing to continue with the flight, as the second landing did not result in substantial 

damage or serious injury. The law judge determined that respondents had operated the aircraft while it was in an 

unairworthy condition, but that they did not know that it was unairworthy, and therefore did not violate the regulations, 

as charged. 

Respondents' Appeal 

Respondents filed an appeal brief, in which they argue that the law judge erred in not granting their motion for 

summary judgment prior to the hearing. The Administrator submitted a motion to dismiss respondents' appeal, on the 

basis that their appeal brief was untimely. The certificate of service attached to respondents' appeal brief indicates that 

they served the brief on October 8, 2009. After filing the notice of appeal, our Rules of Practice state that an appealing 

party must perfect the appeal by filing an appeal brief within 50 days after the date of the initial decision. 49 C.F.R. § 

821.48(a). In the case at ["^15] issue, the law judge issued the oral initial decision on August 12, 2009. Therefore, the 

parties' deadline for perfecting their appeals by filing their briefs was October 1, 2009. Respondents have not filed a 

motion for leave to submit their appeal brief late, based on good cause, and they do not mention their lack of timeliness 

in their appeal brief Respondents did not reply to the Administrator's motion to dismiss their appeal. Under our Rules 

of Practice, we grant the Administrator's motion and thereby dismiss respondents' appeal. nlO 

nlO See, e.g.. Administrator v. Hooper, 6 NTSB 559 (1988). 

The Administrator's Appeal 

On appeal, the Administrator argues that several aspects of the law judge's decision are erroneous. The 

Administrator first contends that the law judge did not explain what evidence he accepted or rejected, and failed to 

address the issue that respondents did not successfully complete a flight control check because the ECAM did not 
Page 6 

2010NTSB LEXIS 31, *15 

display four green arrows; in this regard, ["^16] the Administrator argues that the law judge's finding that no ECAM 

warnings displayed prior to flight is contrary to the overwhelming weight of the evidence. The Administrator also 

asserts that the evidence establishes that respondents had sufficient knowledge of the inoperable spoilers prior to taking 

off The Administrator points out that neither respondent testified that they observed a green ECAM display upon 

manipulating the sidestick in the cockpit, but that they testified that they saw green displays only after Mr. Miller 

completed multiple resets of the computers in the cockpit. 

The Administrator further argues that the law judge erred when he failed to explain why he believed the MEL was 

inapplicable, and that this interpretation is contrary to § 91.213(a), which prohibits operation of an aircraft with 

inoperative equipment, unless the equipment appears on the MEL. The Administrator also challenges the law judge's 

determination that Respondent Surratt's decision to continue with the flight was reasonable under the circumstances, as 

Respondent Surratt became cognizant of a serious spoiler problem during the flight, and because respondents provided 

no support for their contention [*17] that the QRH permitted continued operation with floating spoilers. The 

Administrator contends that respondents have a cavalier attitude concerning aviation safety, and that Respondent 

Surratt's continuation of the flight for 3 hours after he learned that the spoilers were malfunctioning is indicative of this 

attitude. Lastly, the Administrator asserts that the circumstances warrant a 180-day suspension of respondents' ATP 

certificates. Respondents contest each of the Administrator's arguments, and urge us to affirm the law judge's decision. 

With regard to the Administrator's appeal, we agree that the law judge did not fiilly explain the fundamental reasons 

for some of the conclusions he made. The law judge did not exphcitly discuss whether he found respondents' testimony 

more credible than the Administrator's witnesses' testimony, but his decision seems to indicate that respondent's and Mr. 

Dow's testimony formed the basis for his decision. We have long held that we defer to law judges' credibility 

determinations, absent a showing that the determinations were arbitrary, capricious, or contrary to the weight of the 

evidence, nl 1 In the case at hand, the key determination that the law [*18] judge articulated was his belief that 

respondents saw green on the ECAM, and therefore believed that the previous warnings on the ECAM, including the 

"LAF DEGRADED" warning, were spurious. 

nl I Administrator v. Nickl, NTSB Order No. EA-5287 at 6 (2007) (citing Administrator v. Kocsis. 4 NTSB 461, 

465 n.23 (1982): see also Administrator v. Smith. 5 NTSB 1560, 1563 (1986): Administrator v. Sanders. 4 NTSB 

1062 (1983)). 

Sections 91.7(a), 91.13(a), and 91.213(a) 

In reviewing the law judge's decision and considering respondent's appeal, we are mindful of the fact that the 

Administrator has the burden of proving that the aircraft was unairworthy by a preponderance of the evidence. nl2 In 

cases in which the Administrator alleges that an operator has violated 14 C.F.R. § 91.7(a), we have long held that the 

standard for airworthiness consists of two prongs: (1) whether the aircraft conforms to its type certificate and applicable 

Airworthiness Directives; ["'19] and (2) whether the aircraft is in a condition for safe operation. nl3 With regard to the 

first prong of the test, we recognize that operators may check the aircraft for conformance with its type design and, 

where it does not conform, the MEL may nevertheless permit operation of the aircraft. nl4 We have also concluded, 

however, that when small, insignificant deviations are present, an aircraft may still substantially conform to its type 

design. nl5 With regard to whether an aircraft is in a condition for safe operation, we have recognized that, "[t]he term 

'airworthiness' is not synonymous with flyability." nl6 Moreover, in determining whether an aircraft is airworthy in 

accordance with the aforementioned standard, the Board considers whether the operator knew or should have known of 

any deviation in the aircraft's conformance with its type certificate. nl7 
Page 7 

2010 NTSB LEXIS 31, *19 

nl2 Administrator v. Van Der Horst, NTSB Order No. EA-5179 at 3 (2005); see also Administrator v. 

Schwandt, NTSB Order No. EA-5226 at 2 (2006) (it is the Board's role to determine, after reviewing the 

evidence the Administrator presents, whether the Administrator has met the requisite burden of proof). 

[*20] 

n\2 Administrator v. Doppes, 5 NTSB 50, 52 n.6 (1985) (citing 49 U.S.C. § 1423(c)); see also Administrator v. 

Anderson, NTSB Order No. EA-3976 at 2 (1993); Administrator v. Nielsen, NTSB Order No. EA-3755 at 4 

(1992); Administrator V. Copsey, 7 NTSB 1316, 1317 (1991). 

nl4 See generally Anderson, supra note 13, at 4 n.5 (stating that, "[t]he MEL contains items that may be 

inoperative without rendering the aircraft unairworthy"). 

nl 5 Administrator v. Frost, NTSB Order No. EA-4680 (1998); Administrator v. Calavaero, Inc.. 5 NTSB 1099, 

1101 (1986). 

nl6 Doppes, supra note 13, at 52 n.6. 

nl7 See, e.g.. Administrator v. Yialamas, NTSB Order No. EA-5111 (2004); Administrator v. Bemstein, NTSB 

Order No. EA-4120 at 5 (1994); see also Administrator v. Easton, NTSB Order No. EA-4732 at 2 (1998) 

(acknowledging that significant risks exist when a pilot fails to confirm that an aircraft is airworthy following 

maintenance). 

In the case at hand, the Administrator did not [*21] introduce the type certificate data sheet into evidence, but did 

provide relevant excerpts from the MEL, which establish that the aircraft did not conform to the applicable 

airworthiness standards. In any event, given that both prongs of the airworthiness standard are required, the 

Administrator may prevail in airworthiness cases without introducing the type certificate, but by proving that the 

aircraft was not in a condition for safe operation. The evidence in this case establishes that the A320 was not performing 

in a safe manner. nl8 In addition, at the hearing, both respondents acknowledged that Airbus did not intend for the 

aircraft to fly with two pairs of spoilers in "M" mode, and that such a condition rendered the aircraft unairworthy. nl9 

Overall, the evidence in this record establishes that the aircraft did not fulfill both prongs of the airworthiness test. 

nl8 See, e.g., Tr. at 223-26, 291, 372; Exh. R-8 at 2 (Respondent Walker's narrative description of flight in 

ASRP report, in which he stated, "1 was the flying pilot and noticed several times during the flight the rudder 

trim was going out of range making the autopilot have trouble holding the aircraft stable ... During approach I 

noticed the aircraft was sloppy and sluggish on the controls"). 

[*22] 

nl9 Tr. at 328 (discussion of MEL requirements), 378-79 (Respondent Walker's statements that respondents 

discovered that aircraft had been unairworthy during the flight); see also Exhs. A-12 (relevant excerpts from 

MEL), R-7 (Airbus newsletter warning about spoiler issues). 

As discussed above, we have previously held that we will also consider whether a respondent knew that an aircraft 

was in an unairworthy condition when he or she operated the aircraft. In Administrator v. Thibert, NTSB Order No. 

EA-5306 (2007), we held that the Administrator failed to prove that the respondent knew or should have known that the 

Bell helicopter he operated had a broken lateral cyclic control servo mount bracket and a cork inserted in the engine oil 

quick drain in lieu of an approved part. We determined that the Administrator did not prove that the respondent knew or 

should have known about these discrepancies, because the person who performed maintenance on the aircraft had not 

informed the respondent of any discrepancies, and because many flight students who were mechanics accompanying the 

respondent performed [""23] pre-flight inspections and did not discover the discrepancies. In Thibert, we cited 
Pages 

2010NTSB LEXIS 31, *23 

Yialamas, supra note 17, for the "knew or should have known" standard; in Yialamas, we determined that the 

respondent's reliance on maintenance certifications indicating that the aircraft was airworthy and safe to fly was 

reasonable and showed that the respondent did not know of the discrepancies at issue in that case. n20 

n20 Id. at 6-7 (citing Bemstein, supra note 17, at 5, and stating that, to prove a violation of § 91.7(a), "the 

Administrator must show that the airman operated an aircraft that he knew or reasonably should have known 

was not airworthy"). 

In his oral initial decision in this case, the law judge indicated that he believed the Administrator needed to prove 

that respondents had actual knowledge of the fact that the spoilers were malfunctioning. Initial Decision at 523-24. 

However, our precedent establishes that we do not determine only whether an airman had actual knowledge of a 

discrepancy, but that we also consider [*24] whether the airman should have known of the discrepancy. Even based on 

this standard, the Administrator has not provided sufficient evidence to compel us to find that respondents should have 

known that the spoilers were malfunctioning. The Administrator's evidence consists of indications that the ECAM 

displayed several warnings prior to takeoff However, respondents and Mr. Miller testified that resetting the SEC caused 

these wamings to clear. In addition, the Administrator presented no evidence to refute respondents' assertion that A320s 

are subject to spurious wamings, such as the "LAF DEGRADED" message that the ECAM displayed, following heavy 

maintenance. The Administrator also did not provide evidence to establish that the ECAM was functioning properly; 

given that the FDR data showed that respondents performed the flight control checks wherein they moved the sidestick 

to check the spoilers, and that some of the spoilers did not respond appropriately, the Administrator should have 

provided evidence to show conclusively that the ECAM displayed valid messages at all times. n21 While Inspector 

Stauffer explained how the ECAM works, and the photographs of the re-creation of the ['^25] flight indicated that a 

fiinctioning ECAM would display appropriate messages when the spoilers are malfunctioning, no one could establish 

that the ECAM functioned as intended on this particular flight. This lack of evidence, combined with the law judge's 

assessment that respondents' testimony that they never saw amber numbers on the ECAM prior to takeoff was credible, 

leads us to conclude that the Administrator did not show that respondents knew or should have known that the spoilers 

were in "M" mode prior to taking off 

n21 The Administrator did not provide evidence to explain how respondents and Mr. Miller only saw the "LAF 

DEGRADED" warning. According to the evidence in the record, the ECAM should have displayed 

amber-colored numbers indicating exactly which spoilers were malfunctioning. Instead, however, all three 

witnesses in the cockpit consistently testified that the ECAM only displayed the "LAF DEGRADED" warning. 

The Administrator did not challenge respondents' testimony that this warning is known as an advisory message, 

rather than a message indicating that the aircraft is unairworthy. 

[*26] 

At several points in the appeal brief, the Administrator emphasizes that respondents could not have had a successful 

flight control check in accordance with the mandatory checklists, because it was impossible for the spoilers to have 

reacted in response to inputs from the cockpit. The Administrator's evidence on this issue is persuasive. See, e.g., Tr. at 

56-57, 96, 103-104; Exhs. A-2, A-3. However, the Administrator has not charged respondents with violating any 

regulation that requires adherence to such checklists. Instead, the Administrator charged respondents with operating an 

aircraft while it was in an unairworthy condition, and while it had a mechanical, electrical or structural problem. In this 

case, the Administrator failed to establish a nexus between the checklist requirements and the regulations charged. 

Section 91.7(b) 
Page 9 

2010NTSB LEXIS 31, *26 

With regard to the Administrator's § 91.7(b) charge against Respondent Surratt, we agree with the law judge's 

determination that Respondent Surratt, as PIC on the flight at issue, had the discretion to continue with the flight. Under 

the circumstances of this flight. Respondent Surratt's decision to continue with the flight was not unreasonable, in light 

[•*27] of the fact that it behooved him to land the aircraft with less fuel than the amount the aircraft carried only 20 

minutes into the flight. Moreover, the Administrator did not introduce evidence to show that the QRH or any other 

records functioned to prohibit continuation of the flight. We also note that it would be unreasonable to consider the 

MEL as mandatory during the flight, and the Administrator has provided no authority establishing otherwise. 

ACCORDINGLY, IT IS ORDERED THAT: 

1. Respondents' appeal is dismissed; 

2. The Administrator's appeal is denied; and 

3. The law judge's decision, reversing and dismissing the Administrator's orders of suspension, is affirmed. 

HERSMAN, Chairman, HART, Vice Chairman, and SUM WALT, Member of the Board, concurred in the above 

opinion and order. 

JUDGE FOWLER SE-18563 

200 Chestnut Street 

Coiulroom 300 

Philadelphia, Pennsylvania 

Wednesday, 

August 12, 2009 

The above-entitled matter came on for hearing, pursuant to notice, at 10:00 a.m. 

BEFORE: WILLIAM E. FOWLER, JR., Chief Administrative Law Judge 

APPEARANCES: 

On behalf of the Administrator: 

RUSSELL CHRISTENSEN, ESQ. 

Federal Aviation Administration 

1701 Columbia Avenue 

College Park, Georgia 30037 [*28] 

On behalf of the Respondents: 

JASON DICKSTEIN, ESQ. 

Washington Aviation Group, P.C. 

and the Law Office of Jason A. Dickstein 
Page 10 

2010 NTSB LEXIS 31,+28 

21233 Wisconsin Avenue, N.W. 

Suite 503 

Washington, D.C. 20007 

202-628-6776 

JESSICA STUBBS, ESQ. 

Washington Aviation Group, P.C. 

and the Law Office of Jason A. Dickstein 

21233 Wisconsin Avenue, N.W. 

Suite 503 

Washington, D.C. 20007 

202-628-8947 

ORAL INITIAL DECISION 

This has been a proceeding before the National Transportation Safety Board held pursuant to the provision of the 

Federal Aviation Act of 1958 as that Act was subsequently amended on the appeals of Tony Scot Surratt and Frank 

William Walker from Orders of Suspension dated April 8, 2009, issued by the Regional Counsel, Southern Region of 

the Federal Aviation Administration, which purports to suspend Respondent Surratt's airline transport pilot certificate 

number (omitted) for a period of 180 days, and also Respondent Walker's airline transport pilot certificate number 

(omitted) for a period of 180 days. 

This has been a consolidated proceeding on the appeals of Respondents Surratt and Walker. 

The Administrator's Orders of Suspension as duly promulgated, pursuant to the National Transportation Safety 

[*29] Board's Rules of Practice in Air Safety Proceedings, as I mentioned earlier, was issued by the Regional Counsel 

of the Southern Region of the Federal Aviation Administration. 

This matter has been heard before this United States Administrative Law Judge and is provided by the Board's 

Rules of Practice, specifically Section 821.42 of those rules, while it is not mandatory, according to that section of the 

rules, that as the Judge in this proceeding I issue an Oral Initial Decision. I'm going to do that at this time. 

Following notice to the parties, this matter came on for trial on August 11th and 12th in Philadelphia, Pennsylvania. 

The Complainant in this proceeding was very ably represented by Counselor Christensen, Esquire, of the Regional 

Counsel's Office, Southern Region of the Federal Aviation Administration. The Respondents were represented by 

Counselors Dickstein and Stubbs, Esquire, and both have done a very admirable job, I might add. 

Both parties have been afforded the opportunity to offer evidence, to call, examine, and cross-examine witnesses. In 

addition, the parties were afforded the opportunity to make final argument in support of their respective positions. 

I have reviewed [*30] the testimony and the documentary exhibits adduced by counsel. The Administrator has had 

21 Exhibits. The Respondent has had 11 Exhibits. The Administrator has had the testimony of four witnesses. The 

Respondent has had the testimony of three witnesses. Two of those witnesses of the Respondent were the two 

Respondents, themselves. Respondent Surratt and Respondent Walker. 
Page 11 

2010 NTSB LEXIS 31, *30 

I have reviewed the totality of the testimony and the documentary exhibits, and as you know the burden of proof in 

a proceeding of this type is on the Administrator, 

The Administrator has set forth two Orders of Suspension here with 21 specific paragraphs set in the Orders against 

Captain Tony Scot Surratt, and against Captain Frank William Walker there were 12 paragraphs. 

I'm going to try to be as brief and as concise as I can. 

This case in my humble estimation rises or falls on what the two Respondents knew, what knowledge they 

possessed prior to takeoff on May 17th, 2008, from Miami Intemational Airport. 

We have the testimony of four witnesses on behalf of the Administrator, Witness Laurence Johnson, Principal 

Operations Inspector; Witness Philip Stauffer is also a Principal Operations Inspector, Witness Thomas ['*31] W. 

Welsh, who is an Inspector at USA3000 Airlines, the company we're dealing with in this proceeding and witness Frank 

Miller. All four of these gentlemen are exceedingly experienced. 

Inspector Stauffer was declared to be an expert, particularly in maintenance, maintenance engineering. And to make 

a long story short, the witnesses of the Administrator all testified validly and substantiated many of the numbered 

paragraphs set forth in both Orders of Suspension against Respondent Surratt and Respondent Walker. 

Respondent had three witnesses. Respondent Surratt, Respondent Walker, and Witness Paul O. Dow, Jr., who was 

qualified as an expert. Witness Dow has 4,300 hours in the A320 and has 11,000 hours as an airline transport 

certificated pilot. 

I have reviewed the testimony in this case. The two Respondents have testified and one of the Administrator's 

witnesses, Mr. Frank Miller, has testified that prior to takeoff even though the Respondents in this aircraft knew there 

were spoiler difficulties, spoilers 3 and 5 were, as counsel for the Administrator has ably stated, locked out. 

Respondents and other members present in the aircraft including Witness Miller who has testified on behalf [*32] 

of the Administrator, that computer buttons were reset and that the ECAM panel prior to takeoff was green. The pilots. 

Respondent Walker was the flying pilot. Respondent Surratt was tending to the other duties of a First Officer. 

The evidence here in my determination is persuasive, logical, and compelling that the ECAM panel prior to takeoff 

or just before takeoff was green or clear, however you want to deem it when this flight took off from Miami 

Intemational Airport. Some 10, 15, 20 minutes later, messages came on the ECAM of the spoiler problems. 

The flying pilot, or I should say pilots, conversed about this problem, referred to the QRH, Quick Reference 

Handbook, which is the National Operation Manual reference book and decided since they had no prior knowledge 

before they took off with these spoiler difficulties; that even since they then had knowledge of the spoiler difficulties, 

that they would proceed with their flight, as they did, approximately two hours or more before they attempted their first 

landing, which had to be aborted because as you have heard during the testimony in this proceeding, the left wing fence 

as the testimony has stated, as opposed to the Administrator's [*33] Order which says the left wingtip, scraped the 

runway. So, the first attempt at landing was aborted and there was a second uneventful landing, 

I have heard a number of these cases, not similar to this one, but my point in raising this is there was no accident, 

no damage, no injuries, no fatalities, and that to me is always a bit refreshing to have a case like this because so many 

times they are just the opposite. 

The burden of proof as 1 stated earlier, is on the Administrator to prove by a fair and reasonable preponderance of 

the probative, reliable, and substantial evidence, the charges and allegations as set forth in these Orders of Suspension. 

It is my determination the Administrator's evidence as to what the Respondents knew prior to takeoff, the 
Page 12 

2010NTSB LEXIS 31, *33 

Administrator's evidence is lacking based on the totality of what we've had during the course of this two day 

proceeding. 

We've had the testimony of both Respondents, as well as the last witness of the Administrator, Mr. Frederick 

Miller, who is the Director of Maintenance for USA3000 Airlines, who concurred with the two Respondents' testimony 

that immediately prior to takeoff the ECAM panel was clear, if not green. There was some testimony [*34] that it was 

green. And thereby and thereupon the flight took off 

Administrator's witnesses have testified to the opposite result concerning the ECAM panel prior to takeoff and 

notice to the pilots, but I don't believe, and it is my determination that the Administrator's case is persuasive and 

compelling enough to rebut the total testimony adduced on the Respondents side of the case. 

We can look at this case, I believe in another way. Both Respondents are airline transport rated certificated pilots 

who are held to the highest degree of care, judgment, and responsibility. Now, the evidence is on the Respondents' side, 

I believe, in this case that the Respondents did not know when they took off the full situation of the spoilers. Three 

witnesses, as I mentioned, have testified the ECAM panel was clear, indicated green, and they took off 

Now, the question after that comes down to what did Respondents Surratt and Walker do when they got the 

message during the flight some 20, 25 minutes later about the inoperable spoilers. Respondent Surratt is the 

Pilot-in-Command of this flight. Respondent Walker was the flying pilot. As Pilot-in-Command, Captain Surratt within 

the realm of his authority [*35] as Pilot-in-Command, continued the flight as opposed to the contention of the Federal 

Aviation Administration, that when they were afforded this message during the flight about the spoiler situation that 

they immediately end and abort the flight. 

Administrator's A-7, which is a letter January 11, 2008, to Inspector Laurence Johnson issued by Joseph Guhin, 

Director of Safety and Regulatory Compliance for USA3000 Airlines, and 1 will read a certain portion of that letter. The 

fourth paragraph on the first page of this Exhibit A-7 said during the flight control check, during the taxi checklist the 

crew noted there was an ECAM caution of LAF degrader. It was cleared by resetting the spoiler elevated computer SEC 

push buttons. According to both Captain Surratt and Joe Miller, this caution is not uncommon, and was quickly cleared. 

The aircraft had a clean upper ECAM page prior to the uneventfiil takeoff 

While airborne, during routine page call-ups the ECAM panel displayed symmetrical spoiler 3, 5 Left R spoiler 

amber indications. During the flight a pilot left the cockpit and retumed noting two spoilers on the left wing were 

floating. 

A USA3000 Airline Inspector's employee took some pictures [*36] of those spoilers, noted that the rudder trim 

going out of limits, and Captain Walker disengaged the autopilot and manually trimmed the aircraft. 

The paragraph goes on to say about somewhat difficulty there was in landing the aircraft and with the scrape of the 

runway by the left wing fence. 

As I mentioned, the totality of the seven witnesses that have testified in this proceeding, among the four, one was 

designated an expert. Inspector Johnson, and there was one expert witness, Paul O. Dow, on behalf of the Respondent. 

You may recall Witness Dow, who was present during the course of this proceeding, said that he concurred 

wholeheartedly with the actions of Respondents Surratt and Walker and his testimony also encompassed the situation 

that has often occurred on a maintenance acceptance test flight which has the aircraft involved, which has been laid up 

for quite a while, that it is not uncommon for the things that occur in the flight we're concemed with here that did occur, 

and as both the Respondents and Witness Miller testified, this caution as they exercised by resetting the computer 

buttons which cleared the ECAM panel and allowed them to takeoff in an uneventful takeoff with [*37] no problems in 

their mind. And as they have both testified to, both Respondents were not cognizant of a serious spoiler problem until 

during the flight, they were later notified and they made their decisions, particularly Respondent Surratt as 
Page 13 

2010NTSB LEXIS 31, *37 

Pilot-in-Command, to continue the flight, which they did. And other than the wing fence scraping the runway on the 

second landing attempt, the landing was uneventful and as I said, fortunately, this was merely an incident and not an 

accident. 

So that, ladies and gentlemen, as I said I thought the Respondents' case successfully rebutted the Administrator's 

case. Much has been made of the utilization or non-utilization of the minimum equipment list prior to takeoff I think 

the Respondents successfiilly were persuasive and compelling in their evidence that the minimum equipment list was 

not applicable or apropos since the ECAM panel was cleared and the Respondents took off accordingly. 

So that, ladies and gentlemen, I'm sure you get the drift of my decision here now which to use a colloquialism. 

Respondents have carried the day. And I will make my specific following Findings of Fact and Conclusions of Law 

accordingly. 

Taking up first Captain Tony [*38] Scot Surratt, his Order of Suspension. 

1) Respondent Surratt admits and it is found that he was and is the holder of airline transport pilot certificate 

number (omitted). 

2) The Respondent admits and it is found that all times relevant herein he was employed as a pilot for Brendan 

Airways, LLC. 

The remaining Paragraphs 3,4, 5, 6, and 7,1 will not spell those out because the Respondent has admitted all of 

those allegations as set forth in Paragraphs 3, 4, 5, 6, and 7. And I will find and admit accordingly where those 

numbered paragraphs are concemed. 

8) It is found that the amber LAF degraded message on the aircraft's ECAM panel comes on when there is a failure 

of one of the aircrafts spoiler servojacks. 

9) It is found that during the flight but prior to takeoff the ECAM panel indicated that the following wing roll 

spoilers were not operational and/or locked out. It is my determination that designated Paragraphs C and D dealing with 

the right wing spoilers number 3 and 5 were found accordingly. 

10) It is found that during the flight but prior to takeoff Respondent Surratt was not aware that the aircraft's ECAM 

indicated that the following wing roll spoilers were not operational [*39] and were blocked out, but that the right wing 

spoiler number 3 and right wing spoiler number 5 were indicated accordingly. It is my determination that appropriate 

action was taken to clear the ECAM panel and the takeoff quickly followed thereafter. 

11) It is found that pursuant to the aircraft's minimum equipment list, the aircraft cannot be dispatched when two or 

more spoilers on either wing are in an inoperable condition. But based on the totality of the evidence and the facts and 

circumstances we've had adduced during the course of this proceeding, the minimum equipment list immediately prior 

to takeoff was not operable and should not have been invoked at the time prior to takeoff, and was not invoked. 

12) The Respondents admit and it is found that notwithstanding the above, during the flight the Respondent Surratt 

operated the aircraft during the takeoff with no knowledge of the following inoperative instruments: C and D of 

Paragraph 12, which is the right wing roll spoiler number 3, and D, the right wing roll spoiler number 5. 

13) It is found that during the flight and after 20 minutes after takeoff, the ECAM panel once again indicated that 

the following wing spoilers were not [*40] operational and/or were locked out: C and D as set forth in Paragraph 13 of 

that Order. 

14) It is found that during the flight the flying pilot, Frank William Walker, disconnected the autopilot because the 

rudder trim was not operating properly and was out of range. 
Page 14 

2010NTSB LEXIS 31, *40 

15) It is found and the Respondent admits that during the flight Respondent was informed that two flights [sic] on 

the left wing were floating by a person who had visually inspected the left wing while on board the aircraft. 

16) It is found that during the flight when Respondent first attempted to land the aircraft at Miami Intemational 

Airport, the aircraft's left wing fence contacted the runway causing damage to the left wing fence. 

17) The Respondent admits and it is found that during the above referenced inoperable ring roll spoilers during the 

flight your first landing attempt was aborted. 

18) During the flight it is found that the Respondents operated the aircraft which then was in an unairworthy 

condition but the Respondents had no notice until that time that the aircraft was in an unairworthy condition. 

19) It is found that during the flight the Respondent Surratt failed to discontinue the flight after the unairworthy 

['*41] mechanical, electrical, or structural condition occurred with reference to the condition of the spoilers. 

20) It is found that during the flight the Respondent did not operate the aircraft in a careless manner so as to 

endanger the life or property of another. 

21) It is found by reasons of the foregoing, the Respondent did not violate the following aviation regulations and 

I'm incorporating by reference as set forth in Paragraphs A, B, C, and D of Paragraph 21 of the aforesaid Order of 

Suspension as it was based on the totality of the evidence, coupled with the documentary exhibits, that there was a 

non-violation of Section 91.23(a), Section 91.213(a), and Section 91.7(a), and Section 91.7(b) of the aforesaid Federal 

Aviation Regulations. 

22) This Judge finds that safety in air commerce or air transportation and the public interest does not require the 

affirmation of the Administrator's Order of Suspension as to Captain Tony Scott Surratt, dated April 8th, 2009, because 

of the previously alluded to non-violations of the four PARS sections mentioned earlier. 

ORDER 

IT IS ORDERED AND ADJUDGED THAT the Administrator's Order of Suspension as to Captain Tony Scot 

Surratt, dated April 8th, [*42] 2009, be, and the same, hereby is dismissed and reversed. 

This order is issued by William E. Fowler, Jr., a United States Administrative Law Judge. 

ADMINISTRATIVE LAW JUDGE FOWLER: As to Captain Frank William Walker I will now proceed to make 

the following specific Findings of Fact and Conclusions of Law. 

1) That Respondent Walker admits Paragraphs 1, 2, 3, 4, 5, 6, and 7, and I incorporate those admissions of the 

Respondent Walker by reference as those numbered paragraphs 1 through 7, pertaining to the Administrator's Order of 

Suspension are set forth regarding Respondent Walker. 

8) It is found that the amber LAF degraded message on the aircraft's ECAM panel came on as it did when there was 

a failure of one of the aircraft spoiler servojacks. 

9) During the flight but prior to takeoff it is found that the ECAM panel indicated that it was clear and green even 

though the right wing spoiler number 3 and right wing spoiler number 5 had been locked out and both Respondents as 

they have testified, the ECAM panel was subsequently cleared with the aforementioned four green indicators and the 

takeoff proceeded. 

10) It is found that during the flight but prior to takeoff. Respondent Walker [""43] was not aware that the ECAM 

panel had indicated that the roll spoilers were not operational and/or were locked out because computers were reset 

clearing the aforesaid ECAM panel enabling the Respondents to takeoff with apparently the spoilers problem not being 
Page 15 

2010 NTSB LEXIS 31, *43 

problematical at that time. 

11) It is found that pursuant to the aircraft's minimum equipment list which is acknowledged by its pilots that the 

aircraft cannot be dispatched when two or more spoilers on either wing are in an inoperable condition, the Respondents, 

both Surratt and Walker, were not knowledgeable because the ECAM panel stated clearance or it was green for them to 

make the takeoff as they did. 

12) The Respondent admits notwithstanding the above, that during the flight Respondent Walker operated the 

aircraft during takeoff and thereafter with the following inoperative instruments and I'm incorporating by reference 

under Paragraph 12, Paragraph C and D right wing roller and the right wing roll spoilers number 3 and 5. 

13) It is found that during the flight and within 20 minutes after takeoff the ECAM panel once again indicated that 

the following right wing spoilers were not operational and/or were locked out — right [*44] wing spoiler number 3 and 

right wing spoiler number 5. As the evidence would indicate, this is the first knowledge that both Respondents had 

where the ECAM panel were concemed that they had any knowledge of the spoiler problem. 

14) It is found that during the flight when Respondents first attempted to land the aircraft at Miami Airport, the 

aircraft's left fence connected with the runway causing damage to the left wing fence. 

15) It is found that due to the above referenced inoperable wingtip spoilers during the flight your first landing 

attempt was aborted. 

16) The Respondent operated the aircraft in an unairworthy condition, but had no knowledge at the time when it 

first became unairworthy that it was unairworthy. 

17) During the flight the Respondent did not operate the aircraft in a careless manner so as to potentially endanger 

the life or property of another. 

By reason of the foregoing, there was a non-violation of the Federal Aviation Regulations and I'm incorporating by 

reference those sections without spelling them out. Section 91.13(a), Section 91.213(a), and Section 91.7(a) as there was 

a non-violation of these sections by Respondent Walker. 

18) This Judge finds that safety [*45] in air commerce or air transportation and the public interest does not require 

the affirmation of the Administrator's Order of Suspension dated April 8th, 2009, as it applies to Respondent Walker 

due to the non-violation by Respondent Walker on the aforesaid mentioned regulations alluded to that were not violated 

by Respondent Walker based on the totality of the evidence, coupled with the documentary exhibits as afforded during 

the course of this proceeding. 

ORDER 

IT IS ORDERED AND DECREED THAT the Administrator's Order of Suspension as to Captain Frank William 

Walker is hereby reversed and dismissed because of the non-violations of the aforementioned Federal Aviation 

Regulations. 

This Order is issued by William E. Fowler, Jr., United States Administrative Law Judge. 

EDITED ON September 2, 2009 

WILLIAM E. FOWLER, JR. 

Chief Administrative Law Judge 

Legal Topics: 
Page 16 

2010 NTSB LEXIS 31, *45 

For related research and practice materials, see the following legal topics: 

Transportation LawAir TransportationCertificatesAirworthiness CertificatesTransportation LawAir TransportationU.S. 

National Transportation Safety BoardProceduresTransportation LawAir TransportationU.S. National Transportation 

Safety BoardReports 
APPENDIX E: NTSB's Decision Affirming Babbitt v. Surratt (on 

reconsideration) 

APPENDIX E (NTSB's Reconsideration Decision in Washington Aviation Group, PC and the 

Babbitt v. Surratt) Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
Page 1 

LexisNexis 

1 of 3 DOCUMENTS 

J. RANDOLPH BABBITT, Administrator, Federal Aviation Administration, 

Complainant, v. TONY SCOT SURRATT and FRANK WILLIAM WALKER, 

Respondents 

NUMBER: Order EA-5527; 

Dockets SE-18562 and SE-18563 

National Transportation Safety Board 

2010 NTSB LEXIS 56 

DATE: June 25, 2010, 

Adopted 

ACTION: [*1] 

ORDER DENYING RECONSIDERATION 

ISSUEDBY: National Transportation Safety Board 

SERVED: June 28, 2010 

The Administrator seeks reconsideration of our opinion and order in this case, NTSB Order No. EA-5514, served 

March 24, 2010. In that decision, we affirmed the law judge's order, in which he granted respondents' appeal. The law 

judge determined that the Administrator failed to prove both that respondents operated an Airbus A320 while it was in 

an unairworthy condition, nl and that Respondent Surratt violated 14 C.F.R. § 91.7(b) when, as pilot-in-command 

(PIC), he did not discontinue the flight after learning that two sets of the aircraft's spoilers were "floating." 

nl The Administrator charged both respondents with violating 14 C.F.R. §§ 91.7(a), which prohibits 

operation of a civil aircraft that is not in an airworthy condition; 91.13(a), which prohibits careless or reckless 

operations so as to endanger the life or property of another; and 91.213(a), which states that, except as otherwise 

provided, no person may take off an aircraft with inoperative instruments or equipment installed without 

meeting the requirements of § 91.213. 

[*2] 

In particular, the law judge determined, and we affirmed, that the Administrator did not adequately rebut the 

testimony of both respondents and Joe Miller, a mechanic in the cockpit with respondents, that they believed the 

Electronic Centralized Monitor (ECAM) in the cockpit only displayed a LAF DEGRADED message after respondents 

and Mr. Miller reset the spoiler elevator computers (SEC). We determined that the LAF DEGRADED message did not 

function to advise respondents that two sets of spoilers had been left in "maintenance" (or "manual") mode prior to the 
Page 2 

2010 NTSB LEXIS 56, *2 

flight. n2 Therefore, we concluded that the Administrator had not proved that respondents knew or should have known 

that the aircraft was in an unairworthy condition prior to taking off 

n2 See NTSB Order No. EA-5514 at 9 n.6, and surrounding text. 

We also rejected the Administrator's argument that Respondent Surratt should have landed the aircraft as soon as he 

leamed that two sets of spoilers were "floating." Because the flight was a maintenance acceptance flight, [*3] we found 

reasonable respondents' arguments that there were benefits to continuing the flight, such as identifying other potential 

maintenance issues and burning off fuel. We based this determination largely on our reading of the definition of PIC in 

14 C.F.R. § 1.1, n3 finding that the PIC has significant discretion to choose whether to continue a flight when faced 

with circumstances of this nature. 

n3 Title 14 C.F.R. § l.l defines "pilot-in-command" as a person who, "(1) Has final authority and 

responsibility for the operation and safety of the flight; (2) Has been designated as pilot in command before or 

during the flight; and (3) Holds the appropriate category, class, and type rating, if appropriate, for the conduct of 

the flight." See generally Administrator v. Jeffreys, 4 NTSB 681, 682 (1982) (stating that a PIC is the pilot who 

possesses ultimate decisional authority regarding the flight). 

The Administrator now petitions us to reconsider our original decision, on several bases. The Administrator [*4] 

argues that our "factual findings" in the original opinion are inconsistent with the evidence in the record, particularly 

with regard to our assessment that the evidence indicated that the ECAM ultimately displayed only a LAF DEGRADED 

warning and that the LAF DEGRADED warning did not clearly indicate a problem with the spoilers. The Administrator 

further asserts that respondents' failure to complete a successful flight control check demonstrated their failure to act 

reasonably and prudently, and that the Airbus newsletter that came into evidence, which concerns ECAM wamings, 

further indicated that respondents should have successfiilly completed a flight control check prior to taking off The 

Administrator also contends that we erred in finding that the Administrator should have "conclusively" established that 

the ECAM was fiinctioning properly prior to and during the flight, and that we erred in determining that Respondent 

Surratt had the discretion to continue with the flight. Respondents oppose the Administrator's arguments, and urge us to 

reject the petition. 

Section 821.50(c) of our Rules of Practice requires that petitions for reconsideration "state briefly and specifically 

the [*5] matters of record alleged to have been erroneously decided, and the ground or grounds relied upon." 

Furthermore, § 821.50(d) provides that the Board will not consider, and will summarily dismiss, repetitious petitions for 

reconsideration. The arguments that the Administrator raises in the petition at issue here are not based on new matter, 

but consist of assertions that our original decision contained incorrect factual and legal conclusions. Although the 

petition appears somewhat repetitious of the arguments the Administrator made on appeal, we will address the 

assertions, in the interest of ensuring that our decision on this reconsideration request is clear. 

We first note that the central issue in this case revolved around what the ECAM displayed prior to takeoff. The 

Administrator's petition states that respondents' and Mr. Miller's testimony was contradictory, because they did not 

consistently testify that the ECAM displayed only the LAF DEGRADED message immediately prior to flight. In 

support of this argument, the Administrator cites several portions of the record. Those citations, however, refer to 

testimony concerning various wamings that occurred when Respondent Walker and [*6] Mr. Miller reset the SEC. The 

testimony indicated that, when re-booting the SEC, certain wamings would flash and then clear. All wamings cleared 

except the LAF DEGRADED warning, which respondents and Mr. Miller determined to be spurious, given that the 

aircraft had recently undergone heavy maintenance. As we stated in our original opinion, both respondents and Mr. 

Miller testified that the ECAM displayed green messages after they reset the SEC, other than the LAF DEGRADED 
Page 3 

2010NTSB LEXIS 56, *6 

message, indicating to them that the aircraft was in an airworthy condition. The Administrator, on the other hand, argues 

that respondents should have been aware of a mechanical problem with the aircraft because of the cleared wamings on 

the ECAM and the LAF DEGRADED message. 

As we discussed in our original opinion, the law judge determined that respondents' and Mr. Miller's testimony 

concerning the green messages on the ECAM was credible. NTSB Order No. EA-5514 at 15. The Administrator did not 

convince us that this determination was arbitrary, capricious, or contrary to the weight of the evidence. Therefore, we 

deferred to the law judge's determination that respondents and Mr. Miller observed green messages appear [*7] on the 

ECAM prior to takeoff. The Administrator now appears to assert as well that respondents should not have taken off with 

the LAF DEGRADED message displaying on the ECAM. However, the only evidence the Administrator presented at 

the hearing conceming the import of the LAF DEGRADED message was the opinion of FAA principal avionics 

inspector for general aviation repair stations, Philip Stauffer, who stated that the purpose of the ECAM is to display 

information conceming various flight controls. n4 Inspector Stauffer did not state that the LAF DEGRADED message 

meant that spoilers were locked down or inoperative. On the contrary, both respondents and Mr. Miller, who is the 

director of maintenance for respondents' employer, USA3000, testified that receiving a spurious LAF DEGRADED 

message was not uncommon after an aircraft had undergone heavy maintenance. As we stated in the original opinion. 

Respondent Surratt also testified that Airbus originally intended the LAF DEGRADED message to assist in easing 

turbulence, but that it had never successfully functioned to do so. We do not believe that we erred in determining that 

the evidence was insufficient to show that the LAF DEGRADED message [*8] informed respondents the aircraft was 

in an unairworthy condition. 

n4 Inspector Stauffer's testimony conceming the ECAM included the following: 

Q. What is the purpose of the ECAM? 

A. It's got two purposes. It has two displays there. The upper one is primarily the one that 

displays engine information to the upper, the central two displays. It would be that one. The 

bottom one is used to call up different system pages, either manually or automatically by the 

aircraft when faults occur. 

Q. Now, when you say system pages, what do you mean by system pages? 

A. The lower screen can display any number of pages listed from hydraulics, wheels, doors, 

oxygen pressure. In this case what's relevant for us is the flight control page which is 

automatically called when you have a fault relevant to it or when the flight crew does their flight 

control check. 

ADMINISTRATIVE LAW JUDGE FOWLER: This would include the spoilers, con-ect? 

THE WITNESS: That would display the spoilers, yes. ADMINISTRATIVE LAW JUDGE 

FOWLER: All right. 

THE WITNESS: That would display all the flight controls. Your Honor. 

Tr. at 88-89. 

[*9] 

The Administrator's petition also includes the argument that we have inconsistently applied our case law 

conceming 14 C.F.R. § 91.7(a). In this regard, as we stated in the original opinion, we have long held that the standard 

for airworthiness consists of two prongs: (1) whether the aircraft conforms to its type certificate and applicable 

Airworthiness Directives; and (2) whether the aircraft is in a condition for safe operation. In determining whether an 

aircraft is airworthy in accordance with the aforementioned standard, we will consider whether the operator knew or 

should have known of any deviation in the aircraft's conformance with its type certificate. See cases cited at NTSB 

OrderNo. EA-5514 at 17 n. 17. 

In this case, we affirmed the law judge's conclusion that respondents did not know, nor should have known, that the 

aircraft was in an unairworthy condition. The law judge found respondents' and Mr. Miller's testimony, that they all 
Page 4 

2010 NTSB LEXIS 56, *9 

believed that the LAF DEGRADED message was an ordinary spurious message, to be credible. In addition, Mr. Miller, 

as the director of maintenance with many years experience conceming maintenance issues in an Airbus A320, was in 

the cockpit and [*10] did not believe the LAF DEGRADED message was a cause for concern. Based on these facts, we 

agreed that respondents did not know that the aircraft was unairworthy, and we considered this knowledge element in 

reaching our conclusion that respondents did not violate § 91.7(a). 

The Administrator's reliance on Administrator v. Olsen, NTSB Order No. EA-3743 (1992), conceming the 

knowledge element is misplaced. In Olsen, the respondent was in the unique position of having been the pilot of the 

aircraft at issue as well as performing maintenance on the aircraft as its mechanic shortly before the flight at issue. With 

regard to the knowledge element, we stated as follows: 

We are not imposing a standard of strict liability when we hold that respondent's behavior is to be 

measured against what he personally knew or should have known about the aircraft, both as its pilot and 

as a mechanic who had recently been involved in its maintenance. Such a standard merely expects 

respondent to react reasonably and pmdently to information of which he is or should have been aware 

(from whatever source). 

Id. at 5-6. The Administrator argues that respondents did not act reasonably and pmdently because [•* 11] they did not 

complete a successful flight check. However, respondents contend that Respondent Walker completed a flight check n5 

and that they believed that the aircraft was in an airworthy condition prior to taking off The Administrator attempts to 

prove that respondents violated § 91.7(a) because they did not complete a flight control check subsequent to clearing the 

ECAM wamings, and therefore did not act reasonably and prudently. This argument is inconsequential, however, 

because the reasonable and pmdent standard, as articulated in Olsen, is merely a consideration in the overall "knew or 

should have known" analysis. The Administrator's petition does not overcome our conclusion that respondents' 

testimony that they did not know, nor have reason to believe, that the spoilers were inoperative prior to takeoff was 

credible. As we stated in our original opinion, we have long held that we will consider whether a respondent knew or 

should have known of the unairworthy condition of an aircraft in determining whether he or she has violated § 91.7(a). 

The Olsen opinion did not change this standard, but instead explicitly rejected the application of a strict liability 

standard. 

n5 On this issue, the record contains the following colloquy between Respondent Walker and his attorney: 

Q. Okay. Did you perform any flight control checks? 

A. Yes. 

Q. And did anything unusual occur during your flight control check? 

A. No. 

Tr. at 366. Respondent Walker then testified that Respondent Surratt completed a flight control check that 

indicated a problem with spoiler nos. 3 and 5, but that Respondent Surratt and Mr. Miller were able to clear the 

waming that displayed on the ECAM by resetting the SEC. Tr. at 366-67. 

[*12] 

The Administrator also argues that, in our opinion below, we imposed a burden that is impossible for the 

Administrator to fulfill when we stated that the Administrator failed to establish that the ECAM worked properly. We 

disagree with this assertion. The burden is on the Administrator to prove each element of each offense charged. In the 

case at hand, the Administrator was aware that respondents and Mr. Miller testified that they believed the aircraft was 

airworthy because the ECAM only displayed the LAF DEGRADED waming prior to takeoff, after they reset the SEC. 

In rejecting the Administrator's arguments on appeal, we indicated that the Administrator could have strengthened his 

case by establishing that the ECAM properly displayed messages. This lack of evidence was one of what we believed to 

be several shortcomings in the Administrator's case. We specifically reject the Administrator's notion that we are 

imposing an unreasonable burden on the Administrator to present evidence that the equipment in question operated 
Page 5 

2010 NTSB LEXIS 56, * 12 

properly throughout the flight. In the context of this case, we believe evidence along such lines would have been 

necessary to rebut adequately the testimony of respondents [*13] and Mr. Miller conceming what they observed on the 

ECAM. 

The Administrator's final argument, that Respondent Surratt did not have the discretion to continue with the flight, 

is also without merit. We stated in our original opinion that Respondent Surratt, as PIC, acted reasonably in continuing 

the flight, as he took advantage of the opportunity to land with less fuel, and he utilized the Quick Reference Handbook 

on the aircraft, which allows landing the aircraft with inoperative spoilers after applying a multiplication factor to 

calculate the necessary length of mnway. The Administrator provides no new evidence conceming this conclusion, but 

instead again simply argues that Respondent Surratt acted unreasonably. We disagreed with this contention in our 

original opinion, and we likewise reject it now. 

ACCORDINGLY, IT IS ORDERED THAT: 

The Administrator's petition for reconsideration is denied. 

HERSMAN, Chairman, HART, Vice Chairman, and SUM WALT, Member of the Board, concurred in the above 

order. 

Legal Topics: 

For related research and practice materials, see the following legal topics: 

Transportation LawAir TransportationCertificatesAirworthiness CertificatesTransportation LawAir 

TransportationChartersTransportation LawAir TransportationMaintenance & Safety 
APPENDIX F: Complainant's First Response to Respondent's First Set of 

Interrogatories. Requests for Production of Documents, and Requests for 

Admissions. Response to Interrogatories #1-13 (pages 1-4). 

APPENDIX F (FAA Responses to Interrogatories #1- Washington Aviation Group, PC and the 

13 (pages 1-4)) Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of Brendan Airways, LLC 

FAA Docket No. CP09EA0007 

DMS No. FAA-FAA-2009-0032 

Chief Administrative Law Judge Yoder 

COMPLAINANT'S FIRST RESPONSE TO RESPONDENT'S FIRST SET OF 

INTERROGATORIES. REQUESTS FOR PRODUCTION OF DOCUMENTS. AND 

REQUESTS FOR ADMISSIONS 

The Complainant reserves the right to supplement the following responses: 

RESPONSE TO INTERROGATORIES 

Interrogatory #1 

Allegation 4 of section II of the Complaint contends that the spoiler servo actuators were 

placed in the maintenance mode during maintenance. On what date and during what 

maintenance operation were the spoiler servo actuators placed in the maintenance mode? 

Response to Interrogatory #1 

The Complainant does not know the exact date of the maintenance at this time, however, 

it is clear that the spoiler servo actuators were placed in the maintenance mode prior to 

the flight. The Complainant does not know during what maintenance operation the 

spoiler servo actuators were placed in the maintenance mode, however, it appears that the 

maintenance was performed by AAR. Pursuant to 14 C.F.R. §121.363 Brendan Airways 

is responsible for this maintenance. 

Interrogatory #2 

Please identify all of the facts that you contend support Allegation 4 of section II of the 

Complaint. 

Response to Interrogatory #2 

Prior to the flight there were several indications in the cockpit suggesting that left and 

right wing roll spoilers 3 and 5 were not operational, during the flight these roll spoilers 

did not function, and after the flight it was determined through visual inspection that the 

spoiler servo actuators were placed in the maintenance mode. 

Interrogatory #3 

Allegation 7 of section II of the Complaint contends that USA3000 performed 

maintenance on the aircraft's left wing roll spoilers three and five. Please identify the 

maintenance performed on each of those left wing roll spoilers three and five (limited to 

only the maintenance that is referenced by the Complaint), and state the date or dates on 

which this maintenance was performed. 
Response to Interrogatory #3 

See the Response to Interrogatory #1. 

Interrogatory #4 

Please identify all of the facts that you contend support Allegation 12 of section II of the 

Complaint. 

Response to Interrogatory #4 

The pilots witnessed the ECAM indicate this prior to takeoff, the ECAM was not 

malftinctioning during the flight, if the ECAM is functioning properly it will indicate that 

wing roll spoilers are not operational when they are in the maintenance mode, the spoiler 

servo actuators for the wing roll spoilers in question were in the maintenance mode 

during the flight. 

Interrogatory #5 

Please identify all of the facts that you contend support Allegation 13 of section II of the 

Complaint. 

Response to Interrogatory #5 

See the Response to Interrogatory #4. 

Interrogatory #6 

Please identify all of the facts that you contend support Allegation 19 of section II of the 

Complaint. 

Response to Interrogatory #6 

Left and right wing roll spoilers No. 3 and No. 5 were not operable during the flight and 

pursuant to the aircraft's MEL there is no circumstance in which the aircraft can be 

dispatched for flight when these spoilers are inoperable, and when the spoilers are left in 

the maintenance mode aerodynamic forces cause unwanted movement of the spoilers. 

Also the first landing attempt was aborted and the aircraft was damaged due to the 

inoperable wing roll spoilers. 

Interrogatory #7 

Please identify all of the facts that you contend support Allegation 20 of section II of the 

Complaint. 

Response to Interrogatory #7 

See the above and the Complaint. 

Interrogatory #8 

Is it the Administrator's contention that the flight was an operation that falls within the 

scope of Part 121? 

Response to Interrogatory #8 
Objection. Vague. 

Interrogatory #9 

If it is the Administrator's contention that the flight was an operation that falls within the 

scope of Part 121, then please identify all facts that support this contention and specify 

how that operation falls within the scope of Part 121. 

Response to Interrogatory #9 

Objection. Vague. 

Interrogatory #10 

Is it the Administrator's contention that the aircraft's left wing roll spoilers three and five 

were placed in the maintenance mode during maintenance performed by USA 3000. 

Response to Interrogatory #10 

Pursuant to 14 C.F.R. §121.363 it is the Administrator's contention that Brendan Airways 

is responsible for all maintenance performed on the aircraft. The Administrator does not 

know what individuals placed the aircraft's left wing roll spoilers three and five in the 

maintenance mode prior to the flight, however, it is the Administrator's contention that 

Brendan Airways is responsible for this maintenance. 

Interrogatory #11 

If it is the Administrator's contention that the aircraft's left wing roll spoilers three and 

five were placed in the maintenance mode during maintenance performed by USA3000, 

then please identify all facts that support this contention and specify which maintenance 

was being performed when these spoilers were placed in the maintenance mode. 

Response to Interrogatory #11 

See the Response to Interrogatories No. 1, 2, and 10. 

Interrogatory #12 

If it is the Administrator's contention that the aircraft's left wing roll spoilers three and 

five were placed in the maintenance mode during maintenance performed by USA3000, 

then please identify all facts that support the contention that the maintenance identified in 

INTERROGATORY # 11 was performed by USA3000. 

Response to Interrogatory #12 

See the Response to Interrogatories No. 1, 2, and 10. 

Interrogatory #13 

If it is the Administrator's contention that any other maintenance operation was 

improperly performed on the aircraft-aside from the aircraft's left wing roll spoilers three 

and five being placed in (and/or left in) the maintenance mode-then please identify this 

other maintenance. 

Response to Intenogatory #13 
The Complainant's only contentions about improper maintenance are found in the 

Complaint. 

Interrogatory #14 

The Respondent has asserted to the Administrator that the Respondent was not aware of 

the spoiler issue until the aircraft was in the air. Assuming only for the purpose of this 

interrogatory that the Respondent's assertion is correct, (a) does the FAA contend that the 

Respondent should have done anything differently upon discovery of the inoperable 

spoilers, and if so (b) what should he have done differently and (c) what is the objective 

standard upon which this contention of the Administrator is based. 

Response to Interrogatory #14 

Objection. This Interrogatory seeks information that would not lead to the admission of 

relevant or discoverable evidence. 

Interrogatory #15 

Please provide the identity and telephone number (business or personal) of each person 

the FAA intends to call as a witness in this matter. Please also provide a summary of the 

substance of the expected testimony of each person identified in response to this 

interrogatory. 

Response to Interrogatory #15 

The identity of any witnesses is a matter of trial strategy that has not yet been decided. 

The Complainant reserves the right to amend this answer as trial witnesses are identified. 

Interrogatory #16 

Please provide the identity and telephone number (business or personal) of each person 

the FAA believes has information or knowledge relevant to this matter. 

Response to Interrogatory #16 

Objection. Overbroad. Unduly burdensome. Further this Interrogatory requests 

information that would not lead to the discovery of relevant or admissible evidence. 

Notwithstanding the objection all witnesses who testified in the case of Administrator v. 

Surratt and Walker would have knowledge relevant to this matter. The telephone number 

of Aviation Safety Inspectors Laurence Johnson, Constantine Karamargin, Ernie 

Scardecchio, and Philip Stauffer is 610-595-1500. 

Interrogatory #17 

Please identify and provide the telephone number for each expert witness the FAA may 

call to testify in this proceeding. For each expert witness identified, please state the 

subject matter upon which each is expected to testify, summarize the substance of such 

expected testimony (including, without limitation, identification of all facts, treatises, 

reports and records that form the basis for such opinion). 

Response to Interrogatory #17 
APPENDIX G: Complainant's Second Response to Respondent's First Set 

of Interrogatories. Requests for Production of Documents, and Requests 

for Admissions. Response to Interrogatory #18 and Request for 

Production #11. 

APPENDIX G (FAA Responses to Interrogatory #18 Washington Aviation Group, PC and the 

and RFP 11) Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
/ / o P "r 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of Brendan Airways, LLC 

FAA Docket No. CP09EA0007 

DMS No. FAA-FAA-2009-0032 

Chief Administrative Law Judge Yoder 

COMPLAINANT'S SECOND RESPONSE TO RESPONDENT'S FIRST SET OF 

INTERROGATORIES. REQUESTS FOR PRODUCTION OF DOCUMENTS. AND 

REQUESTS FOR ADMISSIONS 

The Complainant reserves the right to supplement the following responses: 

RESPONSE TO REQUEST FOR INTERROGATORIES 

Interrogatory #18 

Please identify and documents and exhibits the FAA intends to introduce into evidence in 

the proceeding. 

Response to Interrogatory #18 

In addition to what was previously submitted please see the documents listed below: 

1. FAA NO Action Document for AAR Aircraft Services for the incident occurring 

5/17/08 

2. PTRS record from inspector LAB for EIR 200 8 SO 190220 

3. PTRS record from inspector LXC for EIR 2008SO190220 
RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS 

Production Request #11 

Please provide the entirety of each EIR and all other investigative records associated with 

the investigation of AAR in relation to the incidents described in the Complaint. For 

your reference (but not to be construed as a limitation) one relevant FAA investigation 

file number may be 2008SQ190220. 

Response to Production Request #11 

The attached documents (referenced above) make up the entire file of case number 

2008SQ190220. 

Respectfially submitted, 

Alfred R. Johnson, Jr. 

Regional Counsel 

By: '^"^^^^i...^.-^^ .g^ 4=^ Date: 

David M. Cohen 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

Telephone: 718 553-3270 

Facsimile: (718)995-5699 
CERTIFICATE OF SERVICE 

I hereby certify that on this day copies of the foregoing Complainant's Second Response to 

Respondent's First Set Of Interrogatories, Requests For Production of Documents, and 

Requests For Admissions, were sent by Federal Express Mail addressed as follows: 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

(Original and One Copy) 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

RoomE12-320 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

(FAX) 202-366-7536 

Jason Dickstein 

Washington Aviation Group, PC & Law Offices of Jason Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 

(FAX) 202-628-8948 

D,te: SEP - 7 2010 ,/yy^ sJ^i-^C 

y ysaHooks 

Paralegal Specialist 

Office of Acting Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 
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f^ U.S. Oepartment of Transportation 

Federal Aviation AdministtraEBort 

•WARNING NOTICE DLETTER OF CORRECTION IZINO ACTION 

r(PICATE NO. (ItAPPLCAflljEi _ 1 TYPB HU CERT OB tD , J" 

DENTIFICATION 

! OTHER to NUt.tBER (DRr\/ LlC. SSAN. ETC) 

1 

NAME' LAST n F«ST INITUL 

ADDRESS . » . ^ . _ _ y 

crryT ' STATE TT 3PC 

'/^/^/7?/. F / 

SEX I^ 

tr ZIP CODE 

OATeOFSIRriH I AVUTltw EMPtOYERlIF BELATED TOAQ-EGEDVICJUrOMl 

PHOHE NO. 

ocsteiMTOfl 

XE4R 

AIRCRAFT. ENGINE. PROPELLER. 

NtAKE " i MODEL 

CQMPOMEivST OR APPLIANCE INVOLVED^ 

N NUt.lBEB [ SERIAL MO. 

CiVMEB 

ADDRESS 

COY STATE ZIP CODE 

1*^^^^^'=^'" MIAMI, FL 

ALLEGED ViOLATIQN(S? 

OCCURRED .^j^^Q g 

I.OHTH DAy YEAR TIME (24 HOURl DATE UCNTM DAY •rEAH REGICN OIS^OTERED 

5/19/08 SO 

[ AIRPORT DESICmrOR 

MIA 

CORRECTA/C ACTIOH - MAY BE CC^ITttlUED OM RC/CRSE 

NO ACTION 

NSPECTOB; 

BURNETT LINDA 8171 7/1/08 

LAST mu s rtnST NAME M no pcrioi ifflTiALS nCA« DATE 

CERT. CODE TYPE SU9 TYPE CATEGOBY SOUWTE ACCIDENT ACTICN SANCTIOM 

oEEBIDE 0 2 0 2 

5 M \ 

1 4 

PTRSACrrvflTYCODE PnS H3PSCTOH COCCI t.W<St REVIEW DATE 

SIEllIlli] nf^FII /C 7A^nM^ 73-^ 

ADMIN. DATE 

EIHNUr.eCR 

EE1EHEDEQ0QB0E] 

^:• • '/" ^ 
PROGRAM TRACKING AND REPORTING SUBSYSTEM DATASHEET 

(Ona PTRS Record Required for Each Unit of Work as defined in the PPM) 

SECTION l-Transmttlal 

(nspector Name Code: L,\B 

Record 10: SO19200821072 

NPG; 

Start Date: 05/19/2008 

Designator: XE4R 

Airaaft Reg #: 

Flight ft: 

Activity Number: 3733 

Status (POC): C 

Results (ACEFISTX): C 

Affiliated Designator. 

Loc/Departure Point: 

Complaint #: 

Make-Model-Series: A-320-212 

Simulator/Device ID: 

Mon-Cert Activity Name/Company: REF SO 19200819264 

Airman Cert #; 

Examiner Cert #: 

Applicant Cert #: 

Reo Instructor Cert if: 

Pass/Fail: 

Tracking: 

Local Use: 

Activity Time: 

Triggers Activity Number: 

FAR: 145 

Callup Date: 

Closed Date: 06/17/2008 

OTNA: 

Loc/Anrival Point#: 

Occurrence #: 

Incident #: 

EIR#: 200asoi90220 

Accidents. 

Name: 

Name: 

Name; 

Name: 

Exam Kind: 

Miscellaneous: 

Regional Use: 

/Assessment: 0.0 

Repeat Number Geographic? Yes C 

8430-13 #; 

Numeric Misc.; 

National Use; 

Travel Cost: 

No S Foreign? Yes D No S 

SECTION 11 • Personnel {unUmited) 

Personnel Name Position Base Remarks (23 Characters) 

SECTION til - Ecjuipnnsnt (unlimited) j 

Manufacturer Modal Serial # Remarks (23 Characters) 

SECTION IV - COMMENT (unlimited) 

Primary 

Area 

K 

Key 

Word 

802 

Opinion 

Code 

P 

Comment Text (unlinnited length) 

RFK PTR<; sni07rwMiiQV.4 np t v r 

LMVPSTIOA riON INCIDBNT WITH AAR WHKRE IHKY r<l-TURNED TO .SKRVICP. A:i20 TOOM 

USAJOOO. ATl^VSTCI(ECKSPOILrrttSWERfv IN OP POSITION. 05/15/07. 

DURING CHECKFLIGHT ON 05/17/07 SPOILER WAS IN LOCKUD POSITION. 

IKVESnCATINO TO DETERMINE WHERE THIS ADJUSTMENT IN THE SPOILER OCCURRED. 

WEEK AFTER INCIDENT (WEEK OF 5/19/2008) WENT TO AAR TO TAIJ< TO MGMT AND 

Date Originator Office: 

Inspector Signaiura: Supervisor Inilialt: 

FAA Form 8000.36 {i^Si) 
Inspector Name Code: LAB Record ID: SO19200821072 Paee2 

Section IV - Comment (cont'd) 

Primary 

Area 

Key 

Word 

Opinion 

Code 

Comment Text 

802 INTERVIEW 6 TECHNICIANS WHO WERE WORKING ON THE SPOILERS OF THIS AIRCRAFT, 

DISCUSSED WORK ORDERS AND CHECKED TO .SEE iS ANY DISCREPANCIES OCCURRED. 

POUND AIRCRAFT WENT IN TO BE PAINTED AFTER MAINTENANCE- VUE AREA OF THE 

SPOILERS WOULD NOT BE DISTURBED FROM niE PAINTING. 

AFTER CHECKING .MANY /\AR WORK TASK CARDS. INTERVIEWING SEVERAL AAR 

TECHNICIANS WHO WORKED IN THE AREA OF THE SPOILERS OF THE AIRCRAFT AND 

WITNESSED THE SPOILER CHECK. AND AITUNDiNO SEVERAL MEETINGS WITH AAR MGMT 

AND SUi'F.RVISORS. THIS OFFICE HAS ISSUED AAR A LETTER OF WARNING. THIS 

OFFICE CANNOT FIND WHO OR WHEN THE ALLEGED NON-COMPLIANT MAINTENANCE 

OCCURRED. 

AGAIN, P.Vtl CARMONA CHECKED WITH CHIEF INSPECTOR OF AAR AND SUPERVl.SORS TO 

SEP. WHAT TASK CARDS, !F ANY WERE PRODUCED BY AAR BETWEEN 5/15 - 5/19/2008, 

THERF. WF.RE NONE. 

AS THIS INVESTIGATION DID NOT PRODUC:E EVIDENCE OF ANY WRONGDOING ON THE PART 

OF AAR MAINTENANCE, WE CANNOT INITIATE A CIVIL PENALTY VIOlJVTION, WILL 

INITIATE NO .-SCTION FOR AAR TO ENSURE FUTURE INCIDENTS DO NOT OC;CUR AITER 

THE MAINTENANCE HAS liEEN PEiy'OR.MED. 

NO ACTION SNAAP ISSUED ON 7/01.'2008. 
PROGRAM TRACKING AND REPORTING SUBSYSTEM DATASHEET 

(One PTRS Record Required for Each Unit of Work as defined in the PPM) 

SECTION 1 - Transmittal 

Inspector Name Code: LXC 

Record iO: SO 19200819264 

NPG: 

Start Date: 05/19/2008 

Designator; XE4R 

Aircraft Reg #: N265AV 

Flight #: 

Activity Number 3733 

Status (POC): C 

Results (ACEFISTX): C 

Affiliated Designator: 

Loc/Departure Point: ,MIA 

Complaint #; 

Make-Modal-Series: A-320-212 

Simulator/Device ID: 

Non-Cert Actiwty Natne/Company: SO 19200821072 

Airman Cert #; 

Examiner Cert #: 

Applicant Cert #: 

Rec Instructor Cert #: 

Pass/Fail: 

Tracking; 

Local Use; 

Activity Time: 

Triggers Activity Number: 

FAR: 145 

Callup Date: 

Closed Date: 07/01/2008 

OTNA: 

Loc/Arrival Point*: 

Occurrence #: 

Incident #: 

EIR#; 200850190220 

Accident it: 

Name: 

Name: 

Name: 

Name: 

Exam Kind: 

Miscellaneous: 

Regional Use: 

Assessment: 0.0 

Repeat Number: Geographic? Yes C 

8430-13 #: 

Numeric Misc.; 

National Use: OFFHOUR 

Travel Cost; 

No S Foreign? Yes D No H 

SECTION ii - Personnef (unlimited) 

Personnel Name Position Base Remarks (23 Characters) 

SECTION IK - Equipment (unlimited) 

Manufacturer Model Serial # Remarks (23 Characters) 

SECTION tV - COMMENT (unlimited) 

Primary 

Area 

E 

Key 

Word 

617 

Opir*>n 

Cods 

1 

Commsnl Text (unlimited length) 

nS-IIJIR STAUTr-n lNvr:<;TIGAT10N RPGARniNG .\l 1 PGFn IMPROPPR MAirvlTI^NANCP n v AAR 

.AIRCRAFT SHRVICFS-MIAMI (AARm N N^ft-iAV. 

05-20-08 - PREPARED AND SENT LETTER OF INVESTIGATION TO AAR 

05-20-2008 TO 06-16-2008 - CONDUC1 l.D INVESTIGATION REGARDING niE ALLEGED 

IMPROPER MAINTENA.NCE. COULD NOT PROVE THAT ANY AAR EMPIJOYE E PERFORMED THE 

IMPROPER POSITIONING OF 'DIE LEIT WING SPOILERS 3 AND 5 TO THE MAINTENANCE 

Date Originator. Offica; 

Inspector Signatuna: Supervisor Initials: 

FAft Fonil 8000-36 (6-95) 
Inspector Nainc Code: LXC Record ID: SO 19200819264 Paae2 

Section IV - Comment (cont'd) 

Primary Comment Text 

Area 

Key 

Word 

Opinion 

Code 

617 MODE 

05-15-2008 - AN AlRCRAlT ENGINES AND SYSTEMS OPERATION TEST WAS COMPLETED BY 

USA 30O PERSONNEL. SPOILERS OPERA I'lONAL TEST WAS COMPLETED WITH 

SATISF.ACTORY RESULT. 

FOR OTHER IHAN A VV.W MINOR CORRECTION ITEMS AND TOUCH PAINTING (NONE OF 

WHICH WAS PERFOR.MED NF-ARTlIE LEFI' WING SPOILERS NO i AND5), NOOIHER 

MAINTENANCE WAS DOCUMENTED AS BEING PERFORMED BY AAR DURING 05-15 AND 

05-17-2008. 

ON OS-15-2008 -THE AIRCRAl-T WAS PARKED AND RELEASED TO THE CUSTOMER, 

05-17-2008, n i E USA3000 FLIGHT CREW AND MAINTENANCE PERSONNEL DID A 

PREFLIGHI'. (AS PART OF THE FLIGHT PREFLIGHT CHECKLIST), TKEY NOTED THE LF.1T 

WING SPOILERS NO 3 AND 5 WERE INOPERATIVE AND THE RIGHT WING NO i AND 5 

SPOILERS LOCKED. KNOWING THE EXISTING MALFUNCTION, THE FLIGHT CREW ELECTED 

TO TAKE THE .MRCRAFT AND FLEW THE AIRCRAFI FOR OVER THREE HOURS. 

UPON LANDING AFTER FLYING FOR OVER THREE HOURS. AAR PE1«;0NNEL INSPECTED THE 

LEFT WING SP01LBR.S AND DETERMINED THAT THE LEFT WING NO 3 AND 5 SPOILERS 

WERE IN THE MAINTENANCE POSITION. THE INVESTIGATION DID NOT REVEALED WHi^, 

WHO. WHY OR HOW WERE THE SPOILERS POSITIONED TO I'HE MAINTENANCE MODE. 

DUE TO Tl IE LACK OF DOCUMENTATION REGARDING WHEN. WHO, WHY AND HOW WERE THE 

SPOILERS POSITIONED IN THE MAINTENANCE MODE, IT IS NOT POSSIIiLE TOR THIS 

INSPECTOR TO BLAME ANYONE FOR THE IMPROPER POSITIONING OF THE SPOILERS. 

07-01 -08 - A LETTER OF NO .ACTION WAS ISSUED TO AAR AND THE CASE CLOSED.