In The Matter Of: 

### SERVED: MAY 5, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

DocketNo. FAA-2013-0291 AIRBORNE MAINTENANCE AND ENGINEERING SERVICES ) ) ) ) ) ) Case No. 2011S0290032 Respondent
INITIAL DECISION OF U.S. ADMINISTRATIVE LAWJUDGE

Held 

### by SummaryJudgmentOrder entered on April 1, 2015: 1. On or about August 2009, the Respondent, Airborne Maintenance and Engineering Services, committed three (3) violations ofthe Federal Aviation Regulations, i.e., 14 C.F.R. § 145.205(a); 14 C.F.R. §43.13(a); and 14 C.F.R. §43.13(b), when the Respondent performed maintenance on the BoeingB-727 aircraftidentified as N899AA. 2. On orabout October2009, the Respondent, Airborne Maintenance and Engineering Services, committedthree (3) violations ofthe Federal Aviation Regulations, i.e., 14 C.F.R. § 145.205(a); 14 C.F.R. §43.13(a); and 14 C.F.R. § 43.13(b), when the Respondentperformed maintenance onthe Boeing B-727 aircraft identified as N898AA. 3. On or about March2010, the Respondent, Airborne Maintenance and Engineering Services, committedthree (3) violations ofthe Federal Aviation Regulations, i.e., 14 C.F.R. § 145.205(a); 14 C.F.R. §43.13(a); and 14 C.F.R. §43.13(b), when the Respondentperformed maintenance on the Boeing B-727 aircraft identified as N287SC. 4. Genuine issues ofmaterial fact remained in dispute regardingthe FAA's proposed civil penalty of$61,875 for the nine (9) total alleged violations of 14 C.F.R. § 145.205(a); 14 C.F.R. §43.13(a); and 14 C.F.R. §43.13(b), and the matterremained set for a May 2015 Hearing in Orlando, Florida.
OrderAccepting Respondent's Proffered Stipulation, entered on April10, 2015: 1. On April 10, 2015, an Order was filed accepting the Respondent's proffered April 8, 2015 Stipulation, offeringto both waive the May 2015 Hearing and agree to the FAA's proposed, total civil penalty of$61,875 (i.e., $20,625 per aircraft) as an appropriatepenalty for the nine (9) total violations of 14 C.F.R. 

### § 145.205(a); 14 C.F.R. 

### §43.13(a); and 14 C.F.R. 

### §43.13(b).
Civil Penalty Assessed: 1. The Respondent is assessed $20,625 per aircraft, for a total civil penalty of$61,875, for the nine (9) provenviolations of 14 C.F.R. 

### § 145.205(a); 14 C.F.R. 

### §43.13(a); and 14 C.F.R. §43.13(b).

A. BriefSummary ofthe Case On June 13,2013,the Respondent served the FAA with a Request for Hearing. On or about June 22,2013, the Regional Counsel for the FAA's Southern Region filed a Complaintwith the U.S. DepartmentofTransportation's Office ofHearings. The FAA's Complaint alleged that the Respondent, a certificated aircraft repair station, performed improper maintenance on three different Boeing B-727 aircraft (identified asN899AA, N898AA, and N287SC) on or about August 2009, October 2009, and March 2010, respectively. The three Boeing B-727 aircraft were owned and operated by another company, Capital Cargo International Airlines ("CCIA"), which was a Part 121 aircraft operator. The Complaint assertedthatthe Respondent's impropermaintenance onthe three Boeing B-727 aircraft occurred when the Respondent failed to reinstall and rig the Main Landing Gear ("MLG") doors in accordance withthe B-727 Aircraft Maintenance Manual as required by CCIA's Continuous Airworthiness Maintenance Program. Eachtime the Respondent performed maintenance on the B-727 aircraft, it violated three ofthe Federal Aviation Regulations ("FARs"): 14 C.F.R. § 145.205(a); 14 C.F.R. 

### §43.13(a); and 14 C.F.R. 

### §43.13(b). This resulted in a total ofnine (9) alleged violations (i.e., 3 violations x 3 aircraft= 9 violations). Pursuantto 49 U.S.C. § 46301(a)-(d), the FAAproposed a total penalty of$61,875 for all nine (9) alleged violations. On July 18,2013,the Respondent filed an Answer denying the alleged violations.

Page 2 of 6Between September24,2013, and December 23,2014,the parties filed, briefed, and argued multiple discovery and procedural motions. The discussion and rulings on all these motions are partofthe record, and need not be repeated here. On January 30, 2015, the FAA filed a Motion for Summary Judgment ("Motion"). That same day, January 30, 2015, the Respondent also filed a Motion for SummaryJudgment ("CrossMotion"). On March 30,2015, an Order Denying Respondent's Cross-Motion for Summary Judgment was filed. On April1, 2015, an Order Granting In Part and Denying In Partthe FAA's Motion for Summary Judgment was filed. This April1, 2015 Orderfound thatthere was no genuine dispute as to any material fact regarding the nine (9) alleged violations ofthe FARs, and that the FAA was entitledto summaryjudgmenton the alleged violations as a matter oflaw. The Order further found that there was a genuine dispute regarding the FAA'sproposed civil penalty of$61,875 for the nine (9) violations, in partbecausethe FAA was seeking an aggravated finding in support ofits proposed amount of$61,875. As a result, the FAA's Motion for Summary Judgment regarding the proposed civil penalty was denied, an:d the Hearing scheduled for May 5, 2015- May 9, 2014, in Orlando, Florida was re-confirmed for the purpose ofaddressingthe issue ofthe proposed civil penalty. One week later, on April 8, 2015, the Respondent filed Respondent's Stipulation Regarding the Amount ofthe FAA'sProposed Civil Penalty or, In Lieu Thereof, Partial Withdrawal ofRequest for a Hearing onthe Amount ofthe Proposed Civil Penalty. In addition, that same day (April 8, 2015), the Respondent filed with the FAAAdministratortwo Notices of Appeal requesting review ofthe March 30, 2015 Order and the April 1, 2015 Order, respectively. OnApril 10,2015, an OrderAccepting Respondent's Proffered Stipulation, Cancelling the Hearing, Denying Any Inferred Request for Interlocutory Appeal, and Granting Other Relief was filed. Among otherthings, this Order accepted the Respondent's Proffered Stipulation in which it offeredto waive the Hearing and accept as appropriate the FAA's proposed, total civil penalty of$61,875 (i.e., $20,625 per aircraft). This April 10,2015 Order also denied any inferred Request for Interlocutory Appeal, and noted that a final Initial Decision was forthcoming. Page 3 of6

### B. BriefDiscussion 1. The Nine (9) FARs Violations: In essence, the FAAproved thatthe Respondent had committed nine (9) violations ofthe FARs when it performedmaintenance on the Boeing B-727 aircraft (identified as N899AA, N898AA, and N287SC) on or about August 2009, October 2009, and March 2010, respectively. The analyses and rationale for the rulings on the FAA's Motion and the Respondent's CrossMotion are contained in the Summary Judgment Orders, and will not be repeated herein. 2. Civil Penalty: As argued by the FAA in its January 30,2015 Motion (Motion, Exh. II) and found by this Court in its April 1, 2015 Order, the applicable penalty range under FAA Order2150.38 1 was moderate to maximum. The moderate range was $8,750 to $16,249. The maximum range was $16,250 to $25,000. (Motion, 23 and Exh. II, B-5.) In its Motion, the FAA asserted that it was viewing the penalty assessment on a "per aircraft basis." (Motion, 24.) The FAA also sought an aggravated finding, in order to utilize the maximum range and propose a fine of$20,625 per aircraft, for a total proposed penalty of $61,875. TheFAA asserted that since the Respondent's misrigging oftheMLG doors involved two (2) doors, one ofeach ofthe B-727 aircraft's MLG doors could be utilized as an aggravating factor. (Motion, 24.) The FAA did not, however, provide any caselaw ordecisional precedent to support utilizing part ofthe violation itselfas an "aggravating" factor to further punishthe Respondent by maximizingthe penalty against it. (4/1/15 Order, 29-30.) As this Court noted in its April 1, 2015 Order, the FAA's Complaint had not pled any aggravating factors. The FAA also did not submit, as partofits Motion, any factual evidence that supported finding that one door's misrigging was a violation, while duringthe same maintenance procedure the other door's misrigging should be deemed an aggravating factor. As a result, the FAA did not prove, as a matter oflaw, that it was entitled to summaryjudgmenton its proposed civil penalty.

1 It should be noted that the FAA Motion identities FAA Order 2150.38 as Exhibit "C38." This appears to be a clerical error, since FAA Order2!50.38 was marked and filed as Exhibit II. Page 4 of6Nevertheless, on April 8, 2015, one week after the April 1, 2015 Order was filed, the Respondent filed Respondent's Stipulation, inwhich it offeredto waive Hearing onthe civil penalty issue, and also accept as appropriate the FAA'stotal proposedpenalty amount of $61,875. In its April 10,2015 Order, this Court accepted the Respondent's Stipulation pursuantto 14 C.F.R. 

### § 13.216,because a litigant may chooseto waive itsrightto a Hearing and/or to contest issues. (4/10/15 Order, 2-3.) "Aparty may waive any provision, eitherofa contract or of a statute, intended for his benefit."Shutte v. Thompson, 82 U.S. 151 (1872); see also 28 Am. Jur. 2nd Estoppel & Waiver,§ 200 (2012); 57 A.L.R. 2d 302 (2012) (A "statutory provision" is a right orprivilege which "maybewaived"by the beneficiary ofsuchright.). Becausethe Respondent has agreed to accept as appropriate the FAA's proposed "per aircraft" penalty amount of$20,625 per aircraft, for a to

### tid proposed penalty of$61 ,875, the issue ofwhether aggravation exists based onthe facts presented in this case, oris supported by law, is moot. 

### C. Conclusion Based on the foregoing, the Respondent is assessed a total civil penalty of$61,875 as follows: 1. $20,625 for committingthree (3) violations ofthe Federal Aviation Regulations (i.e.,14 C.F.R. 

### § 145.205(a); 14 C.F.R. §43.13(a); and 14 C.F.R. § 43.13(b)), when the Respondent improperly performed MLG maintenance on the Boeing B-727 aircraft identified as N899AA on or about August 2009; and 2. $20,625 for committingthree (3) violations ofthe Federal Aviation Regulations (i.e.,l4 C.F.R. 

### § 145.205(a); 14 C.F.R. § 43.13(a); and 14 C.F.R. § 43.13(b)), when the Respondent improperly performed MLG maintenance onthe Boeing B-727 aircraft identified as N898AA on or about October 2009; and 3. $20,625 for committingthree (3) violations ofthe Federal Aviation Regulations (i.e.,l4 C.F.R. 

### § 145.205(a); 14 C.F.R. 

### §43.13(a); and 14 C.F.R. 

### §43.13(b)), when the Respondent improperly perfonned MLG maintenance onthe Boeing B-727 aircraft identified as N287SC on or about March 2010.

Page 5 of 6! '

Pursuantto 14 C.F.R. 

### § 13.232(d),this Initial Decision shall be considered a final order finding violations and assessing a civil penalty unless either party files a notice ofappeal within 10 days ofservice ofthis Initial Decision pursuantto 14 C.F.R. § 13.233.

Attachment: Service List

Page 6 of 6SERVICE LIST- BY U.S. MAIL



### Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 ORIGINAL & ONE COPY



### Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2W1000 1



### Mr. ChristopherR. Stevenson Complainant 's Counsel ONE COPY



### Office ofthe Regional Counsel, Southern Region Federal Aviation Administration P. 0. 

### Box 20636 Atlanta, GA 30320 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Robert P. Silverberg Re,\p<mdent 's Counsel 

### Silverberg, Goldman LLP 1101 30th St., N.W. Suite 300 Washington, DC 20007 TEL: 202-944-3300 FAX: 202-944-3306 Judge J.E. Sullivan U.S. Administrative LawJudge 

### Office ofHearings, M-20 U.S. DepartmentofTransportation 1200NewJersey Avenue, S.E. (EJ 1-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 FDMS No. FAA-2013-0291 (Civil Penalty Action)

1 Service was by U.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration. 600 Independence Avenue, S.W., Wilbur Wright Building---Suite 2W 1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.