In The Matter Of: 

SERVED: MAY 5, 2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2013-0291 

AIRBORNE MAINTENANCE 

AND ENGINEERING SERVICES 

) 

) 

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Case No. 2011 S0290032 

Respondent 

INITIAL DECISION OF U.S. ADMINISTRATIVE LAW JUDGE 

Held by Summary Judgment Order 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 Boeing B-727 aircraft identified as N899AA. 

2. On or about October 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 Boeing B-727 aircraft identified as N898AA. 

3. On or about March 2010, 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 Boeing B-727 aircraft identified as N287SC. 

4. Genuine issues of material fact remained in dispute regarding the 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 matter remained set for a May 2015 

Hearing in Orlando, Florida. 

Order Accepting 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, offering to 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 appropriate 
penalty 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) proven violations of 14 C.F.R. § 145.205(a); 14 C.F.R. § 43.13(a); and 14 

C.F.R. § 43.13(b). 

A. Brief Summary of the 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 

Complaint with the U.S. Department of Transportation's Office of Hearings. The FAA's 

Complaint alleged that the Respondent, a certificated aircraft repair station, performed improper 

maintenance on three different Boeing B-727 aircraft (identified as N899AA, 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 asserted that the Respondent's improper maintenance on the three Boeing 

B-727 aircraft occurred when the Respondent failed to reinstall and rig the Main Landing Gear 

("MLG") doors in accordance with the B-727 Aircraft Maintenance Manual as required by 

CCIA's Continuous Airworthiness Maintenance Program. Each time the Respondent performed 

maintenance on the B-727 aircraft, it violated three of the 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 of nine (9) alleged violations (i.e., 3 violations x 3 aircraft= 9 violations). Pursuant to 

49 U.S.C. § 46301(a)-(d), the FAA proposed 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 6 
Between September 24,2013, and December 23,2014, the parties filed, briefed, and 

argued multiple discovery and procedural motions. The discussion and rulings on all these 

motions are part of the 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 Summary Judgment ("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 Part the FAA's Motion for 

Summary Judgment was filed. This April1, 2015 Order found that there was no genuine dispute 

as to any material fact regarding the nine (9) alleged violations of the F ARs, and that the FAA 

was entitled to summary judgment on the alleged violations as a matter of law. The Order further 

found that there was a genuine dispute regarding the FAA's proposed civil penalty of $61,875 

for the nine (9) violations, in part because the FAA was seeking an aggravated finding in support 

of its 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 of addressing the issue of the 

proposed civil penalty. 

One week later, on April 8, 2015, the Respondent filed Respondent's Stipulation 

Regarding the Amount of the FAA's Proposed Civil Penalty or, In Lieu Thereof, Partial 

Withdrawal of Request for a Hearing on the Amount of the Proposed Civil Penalty. In addition, 

that same day (April 8, 2015), the Respondent filed with the FAA Administrator two Notices of 

Appeal requesting review of the March 30, 2015 Order and the April 1, 2015 Order, respectively. 

On April 10,2015, an Order Accepting Respondent's Proffered Stipulation, Cancelling 

the Hearing, Denying Any Inferred Request for Interlocutory Appeal, and Granting Other Relief 

was filed. Among other things, this Order accepted the Respondent's Proffered Stipulation in 

which it offered to 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 of 6 
B. Brief Discussion 

1. The Nine (9) F ARs Violations: 

In essence, the FAA proved that the Respondent had committed nine (9) violations of the 

F ARs when it performed maintenance 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 Order 2150.38 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. The FAA asserted that since the Respondent's misrigging ofthe MLG doors involved 

two (2) doors, one of each of the B-727 aircraft's MLG doors could be utilized as an aggravating 

factor. (Motion, 24.) The FAA did not, however, provide any caselaw or decisional precedent to 

support utilizing part of the violation itself as an "aggravating" factor to further punish the 

Respondent by maximizing the 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 part of its Motion, any factual evidence that 

supported finding that one door's misrigging was a violation, while during the 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 summary judgment on 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 Order 2!50.38 was marked and filed as Exhibit II. 

Page 4 of 6 
Nevertheless, on April 8, 2015, one week after the April 1, 2015 Order was filed, the 

Respondent filed Respondent's Stipulation, in which it offered to waive Hearing on the civil 

penalty issue, and also accept as appropriate the FAA's total proposed penalty amount of 

$61,875. 

In its April 10,2015 Order, this Court accepted the Respondent's Stipulation pursuant to 

14 C.F.R. § 13.216, because a litigant may choose to waive its right to a Hearing and/or to 

contest issues. ( 4/10/15 Order, 2-3.) "A party may waive any provision, either of a 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 or privilege which "may be waived" by the beneficiary of such right.). Because the 

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 ,87 5, the issue of whether 

aggravation exists based on the facts presented in this case, or is 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 committing 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 improperly performed MLG maintenance on the Boeing B-727 aircraft 

identified as N899AA on or about August 2009; and 

2. $20,625 for committing three (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 on the Boeing B-727 aircraft 

identified as N898AA on or about October 2009; and 

3. $20,625 for committing three (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 on the Boeing B-727 aircraft 

identified as N287SC on or about March 2010. 

Page 5 of 6 
! ' 

Pursuant to 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 of appeal within 

10 days of service ofthis Initial Decision pursuant to 14 C.F.R. § 13.233. 

Attachment: Service List 

Page 6 of 6 
SERVICE 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-Suite 2W1 0001 

Mr. Christopher R. Stevenson 

Complainant 's Counsel 

ONE COPY 

Office of the 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 Law Judge 

Office of Hearings, M-20 

U.S. Department ofTransportation 

1200 New Jersey Avenue, S.E. (EJ 1-31 0) 

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 or by 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.