Inthe matter of U.S DEPARTMENT OF TRANPORTATION FEDERAL AVIATION ADMINISTRATION WASHINGTON, D.C. 

# RECEIVED JUL 29 2015 

## HEARING DOCKET

AIRBORNE MAINTENANCE AND ENGINEERING SERVICES ) ) ) ) ) ) ) DocketNo. FAA-2013-0291 FAA Case No. 2011S0290032 Respondent-Complainant



## _________________________ ) ADMINISTRATOR'S REPLY BRIEF Pursuantto section 13.233(e) ofthe Federal Aviation Regulations, 14 C.P.R. § 13.233(e), Complainant, the Federal AviationAdministration ("FAA"), files this briefin reply to Respondent's briefon appeal ofthe initial decision issued by Administrative LawJudge ("ALI") J. E. Sullivan onMay 5, 2015, inthe above-captioned matter. STATEMENT OF THE CASE OnMay 29,2013, the FAA issued a Final Notice ofProposed Civil Penalty ("NOPCP") against Respondent, Airborne Maintenance and Engineering Services ("AMES"), a certificated aircraftrepair station, imposing a civil penalty of$61,875 based on Respondent's violations of Sections 43.13(a), 43.13(b), and 145.205(a) ofthe Federal Aviation Regulations ("FAR"). 1 The

1 14 C.P.R.§ 43.13(a), provides: (a) Each person performing maintenance, alteration, orpreventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual orInstructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator
.... 14 C.P.R.§ 43.13(b), provides: (a) Each person maintaining or altering, orperforming preventive maintenance, shall do that work in such a manner and use materials ofsuch a quality, that the condition of the aircraft, airframe, aircraft engine, propeller, or appliance worked onwill be at least equal to its original or properly altered condition (with regard to aerodynamicFAA alleged that Respondent performed improper maintenance on three different Boeing 727 aircraft (identified as N899AA, N898AA, and N287SC) that were owned and operated by Capital Cargo International Airlines ("CCIA"), a part 121 aircraft operator. The Final NO PCP asserted thatthe improper maintenance occurred when Respondent failed to reinstall and rig the flying doors associated withthe aircrafts' right and left mainlanding gear in accordance withthe Boeing 727 Aircraft Maintenance Manual ("AMM") as required by CCIA's Continuous Airworthiness Maintenance Program ("CAMP"). OnJune 22, 2013, the FAA filed the Final NOPCP as the Complaint after Respondent timely appealed. On July 18,2013, Respondent filed
an Answer denying the alleged violations. On January 30, 2015, after extensive discovery, both the FAA and Respondent filed Motions for Summary Judgment. OnFebruary 16, 2015, Respondent filed an Answer in Oppositionto Complainant's Motion for Summary Judgment ("Resp't Opp."). OnFebruary 17, 2015, the FAA filed its Response in Opposition to Respondent's Motion for Summary Judgment. OnFebruary 26, 2015, eachparty filed a reply in support ofits respective motion for summary judgment. On March 13,2015, the ALJ held telephonic oral argument on the parties' motions for summaryjudgment. On March 30,2015, the ALJ issued an Order Denying Respondent's Cross-Motion for Summary Judgment. On April!, 2015, the ALJ issued an Order Granting In Part and Denying In Partthe FAA's Motion for Summary Judgment ("April!, 2015 Order"), which held that there function, structural strength, resistance to vibration and deterioration, and other qualities affecting airworthiness). 14 C.F.R. § 145.205(a), provides: (a) A certificated repair station that performs maintenance, preventive maintenance, or alterations for an air carrier or commercial operator that has a continuous airworthiness maintenance program under part 121 orpart 135 must follow the air carrier's or commercial operator's program and applicable sections ofits maintenance manual. 2was no genuine dispute as to any material fact with the exception ofthe FAA's proposed civil penalty, for which a hearing was scheduled from May 5-9, 2015. On April 8, 2015, Respondent filed a stipulationregarding the amount ofthe FAAproposed civil penalty and withdrawing the request for a hearing onthe civil penalty. The same day, Respondent also filed two interlocutory appeals requesting review ofthe ALJ's March 30,2015 Order and April!, 2015 Order. On AprillO, 2015, the ALJ issued an Order accepting Respondent's proffered stipulation, cancelling the hearing, and denying Respondent's interlocutory appeals ("April10, 2015 Order"), noting that a final Initial Decision was forthcoming. On May 5, 2015, the ALJ issued an Initial Decision assessing a civil penalty of$61,875 (i.e. $20,625 peraircraft) for the nine total violations ofSections 43.13(a), 43.13(b), and 145.205(a) ofthe FAR, and adopting by reference the April!, 2015 Order granting inpart sunnnaryjudgment for the FAA, andthe AprillO, 2015 Order accepting Respondent's stipulation. OnMay 6, 2015, Respondent timely appealed the Initial Decisionto the FAAAdministrator. STATEMENT OF FACTS At all relevant times, Respondent held a repair station certificate issued under Part 145 of the FAR. Compl. 

### 'If 2; Answer

### 'If 2. In August and October of2009, and March 2010, Respondent replacedthe right and left main landing gear onthree different Boeing 727 aircraft (N899AA, N898AA, and N287SC respectively) which included removing and thenreinstalling andrigging the left and right mainlanding gear flying doors. Compl. 

### 'If 4; Answer

### 'If 4; FAA Ex. E,F,G (N899AA maintenance); FAA Ex. Q,R (N898AA maintenance); FAA Ex. W, X (N287SC maintenance). These aircraft were ownedby CCIA and operated under part 121. Compl. 

### 'If 3; Answer

### 'If 3. Under CCIA's operation specifications and CAMP, maintenance on these three aircraft was to be accomplished inaccordance withthe Boeing 727 AMM. Compl.

3**~** 

### 5;**Answer~** 

### 5. Specifically, the maintenance at issue in this case required compliance with AMM sections 32-ll-00 (main landing gear) and 32-12-ll (main gear wing door). See 

### FAA Ex.C, D. Prior to the maintenance on these tluee aircraft, Respondent had not performed maintenance on any Boeing 727 aircraft. FAA Ex. B at 9-l0. A. The Vibration Incident on N287SC and the Missing Tubular Bearing 

### OnApril16, 2010, N287SC departed for a flight from Cincinnati (CVG), butthen hadto returnto CVG when vibration was noted inthe aircraft. FAAEx. Y, Z, AA, BB. Upon CCIA's inspection ofthe aircraft, it found that a tubular bearing was missing from the right-hand main landing gear drag strut wherethe wing door actuation rod attaches. FAAEx. BB at l. CCIA addressed this by replacing the missing tubularbearing. See 

### FAAEx. Z at 1-3 ("bushing replacement"); see also 

### FAAEx. KK at 4 7 (clarifYing that a bushing and a tubular bearing refer to the same component). On May 27,2010, the FAA sent CCIA a letter ofinvestigation concerning the missingbearing onN287SC. FAA Ex. AA. CCIA responded onJune 8, 20l0, informingthe FAAthatRespondent had performedthe most recent maintenance that would have involvedremovingthe missing tubular bearing, consisting ofthe right-hand main landing gear installations. FAAEx. BB at l; FAAEx. X at 6. Removing and installing the tubular bearing is part ofthe process described inthe AMM for removing and reinstalling the flying door that is accomplished as part ofthe main-landing gear installation, which Respondentperformed on March 2010. See 

### FAAEx. C (AMM 32-11-00 at p. 402**~** 

### 3.F(3); p. 404 Fig. 401; p. 422**~AL(11)("Make** 

### sure that removable tubular bearing is in position in door actuation rod fitting on drag strut.")). CCIA also notedthatRespondent was the last certifYing agency signing for the installation ofthe tubularbearing up until the aircraft experiencedthe high frequency
4vibration incident on April16, 2010. FAA Ex. BB at 1. B. The FAA's Inspection ofCCIA'sBoeing 727 Aircraft During May 25-27, 2010, the FAA, CCIA, and Respondent gathered personnel in Toledo, Ohio, for an FAA inspection ofa number ofCCIA's Boeing 727 aircraft. FAA Ex. I, at 1-2. During this inspection, FAA's PrincipleMaintenance Inspector for CCIA, Frank Lipinski and FAA's Principal OperationInspector for CCIA, Jack Gasche, performed walk-around inspections on a number ofCCIA's Boeing 727 aircraft, includingN899AA, N898AA, andN287SC. 2 Inspector Lipinski observed that each ofthese three aircrafts' main landing gear doors were missing mounting hardware and had improperly installed spacing shims
on the "doors to airframe attach fittings." FAA. Ex. I at 1-2. Inspector Lipinski observed many instances ofimproper maintenance that failed to comply with the requirements in AMM 32-12-11 and AMM 32-11-00. FAA Ex. JJ**at~** 12-14, 20-22, 41. Inspector Lipinski found that it was clear that the main landing gear installations on each aircraft were performed improperly based onthe damage to the doors and adjacent structures that
came in contact with the doors,3 where the doors, hinges, flap track fairings, and other components hadbeen scraping, rubbing, orbinding against each other. FAA Ex. I at 1-2; FAA Ex. JJ at 4,**~** 13-15. Inspector Gasche also noticed that the mainlanding gear doors onN899AA, N898AA, and N287SC were out ofalignment, as they showed rubbing at the hinge, and there

2 Thethree aircraft were operatedby CCIA in the intervening periodbetween Respondent's main landing gear maintenance and the FAA's inspection in late May: (1) N899AA was operated 784 times from August 26, 2009 to May 28 2010; (2) N898AA was operated 628 times from October 24, 2009 to May 27, 2010; and (3) N287SC was operated 172 times from March 21,2010 to May 30,2010. FAA Ex. Hat 3. 3 The damaged structures included: the inboard flap track fairings; the door structures adjacent to the attach fittings; the hinge fairing fittings; and the anti-skid wiring conduits for the wheel brakes. FAA Ex. I at 1. 

### 5was damage to the gear door andbinding onthe flap track fairing cover. FAAEx. J. Both Inspector Lipinski and Inspector Gasche were able to conclude that the main landing gear doors
were improperlyrigged without performing a gear swing, based onthe location and extent ofthe damage onthese three aircraft. FAA Ex. JJ at 4,**~** 15; FAA. Ex. I at 1-2; FAA Ex. J. The specific damage and discrepancies noted in these aircraft are listed below in Section C ofthis Briefin Tables A-D. Inspector Lipinski also observed that the damage onthese aircraft was inconsistent with normal wear and tear that usually consists ofpaint deterioration, worn ortorn rubber seals, aged lubrication, affixed dirt, or metallic dust in the hinges. FAA Ex. JJ at 4,**~** 13, 14. Inspector Lipinski notified CCIArepresentatives ofthe aircrafts' discrepancies, and these were placed in the aircrafts' Flight and Maintenance Logs. FAA. Ex. I, at 2. CCIA informed Inspector Lipinski that Respondent hadperformed the last mainlanding gear replacements before the FAA's May 2010 Inspection. 

### Id Based on Inspector's Lipinski's findings and observations, he concluded that Respondent had conducted improper maintenance on all three aircraft and that post maintenance inspections had notbeen conductedto ensure properrigging. 

### Id C. The Maintenance Performed to Address the Aircrafts' Noted Discrepancies CCIAtook N899AA, N898AA, andN287SC out ofservice to address the discrepancies discovered during the FAA's May 2010 inspection. FAA Ex. I at 2. Before CCIA could ferry the aircraft to Respondent's Maintenance, Repair, and Overhaul Facility, it performed the following corrective maintenance onN899AA andN898AA as noted inTable A below. See FAA Ex. K. The three aircraft were then ferried to Respondent's facility for repairs. FAA Ex.B at 52.

6Table A. CCIA Corrective Action on N899AA and N898AA Aircraft Discrepancies Corrective Actions Record N899AA the upper pin for the forward hinge cover reinstalled the pin FAA Ex. Kat 10, for the right-hand flying door had**~2-7.** migrated and was rubbing the fairing incorrectpin length hadbeeninstalled for changed the pin 

### !d. at 2. the middle pin for the forward hinge cover length for the right-hand flying door right forward fairing at the right-hand blended the 

### Id. at 3. flying door forward hinge cover was damaged area damaged from rubbing N898AA the hinge cover pin for the left-hand installed a hinge 

### Id. at6,**~** 1. flying door was extruding from the cover coverpin Between May 28 and May 31,2010, Respondent performed maintenance on N899AA, addressing various discrepancies withthe following corrective actions noted inTable B below. 

### SeeFAAEx.N. T bl B N899AAD'

a e Iscrepancies andC f A f orrec IVe C lOllS Discrepancies Corrective Actions Record improperhardware stack up onthe removed the mainlanding FAAEx. N at 2-7 (nonaft and forward flying door hinges gear doors and reinstalling routine cards 0003, ofthe left andright-hand flying them, thenperforming an 0004, 0005, and 0006). doors4 adjustment/test excessive play at the gear fitting on installed gimbal hardware 

### Id. at 8-9 (non-routine the left-hand flying door card 0007). excessive play atthe gear fitting on re-shimmed the saddle 

### !d. at 10-11 (nonthe right-hand flying door support fitting routine card 0008). damage onthe aft angle onthe removed and replaced the 

### !d. at 12 (non-routine fairing for the right-hand forward angle card 0009). flying door cut out cracked hinge loop onthe forward replaced the hinge 

### !d. at 15-16 (nonoutboardhinge cover for the routine card 0012 and right-hand flying door 0013). worn aft hinge cover onthe replaced the hinge 

### !d. at 17 (non-routine right-hand flying door card 0014). Wornbracket for the forward hinge replaced the hinge 

### !d. at 18 (non-routine cover on the left-hand flying door card 0015).

4 Respondent's own witness, Mr. Becker, admitted that he understood an improper hardware stack up, in the context ofthis discrepancy, to mean that the hinges were not properly shimmed and the main landing gear doors were out ofrig. FAAEx. B at 84-85.
7BetweenMay27 and June 1, 2010, Respondent performed maintenance onN898AA, addressing various discrepancies with the following corrective actions noted inTable C below. See FAA Ex. T. Evenafter the maintenance listed in Table C was accomplished, Respondent
was still unable to adjust the left-hand flying door to properly fit onthe aircraft, and it had to be replaced entirely. FAA Ex. Tat 8-9,36-39 (non-routine cards 0003, 0031). 

### T bl C N898AA 

### n·

a e Iscrepancies andC 

### f A 

### f orrec 1ve C lOllS Discrepancies Corrective Actions Record right-hand flying door: cracked replacedthe forward hinge, FAAEx. Tat 1-3 (nonforward hinge, loose aft hinge, the aft hinge, and several routine card 0001). bushings wornbeyond limits bushings attach plate for the right-hand fairing replaced attach plate for 

### !d. at 34-35 (non-routine hadbeen chafed all the way through the right-hand fairing card 0029). skin on the right wing: cracked at the repaired the damage 

### !d. at 10-15 (non-routine hinge fitting, gouged by the flying cards 0004, 0005). door left-hand flying door: bushings worn replaced several bushings, 

### !d. at 4-7 (non-routine beyond limits, cracked forward hinge, the forward hinge, and the card 0002), 18-19 (nonpin had come out ofthe hinge aft hinge routine card 0008). damage on the left-hand inboard flap repaired the damage 

### Id. at 16-17 (non-routine trackfairing adjacentto the flying card 0006). door's aft hinge gouges inthe skin ofthe left-hand repaired the damage 

### !d. at 20-23 (non-routine flying door nearthe mid attach cards 0015, 0017). bracket andnearthe stop bracket aft hinge cover onthe left-hand flying replaced the hinge 

### !d. at 24-25 (non-routine door had a migrating hinge pin and a card 0020). crackedhinge lobe crackedbushing inthe left-hand replacedthe bushing 

### !d. at 27-28 (non-routine flying door fitting card 0023). aft internal stiffener onthe left-hand repaired the damage 

### !d. at 29-31 (non-routine flap track fairing was cracked card 0024, 0027). forward attach plate for the left-hand replaced forward attach 

### !d. at 32-22 (non-routine fairing was cracked plate for the left-hand card 0028). fairing During May 30-31, 201 0, Respondent performed maintenance onN899AA, addressing various discrepancies with the following corrective actions noted in Table D. See FAA Ex. CC, DD.
8

### T bl D N287SC 

## n· a e 

# . ISCrepanCICS andC 

### f A 

### f orrec 1ve ClOllS 

### Discrepancies Corrective Actions Record discrepant condition on the left-hand replaced an unspecified FAA Ex. DD at 1-2 flying door number ofbushings (non-routine card 0001). aft and forward hinge cover pins on installed new pins Id. 

### at 7 (non-routine the left-hand wing door were card 0008). improperly installed left-hand flap track fairing had slight repaired the damage I d. 

### at 8-9 (nondamage at the wing door forward routine card 0009). hinge opening D. The CCIA Corrective Action Records and Respondent's Responses 

### OnJune 8 and 9, 2010, CCIA sent Respondent two DiscrepancyNotices, Nos. Q20288 and Q20287, which contained Corrective ActionRecords No. QAACVG004, QAA005, and QAACVG006. FAAEx. 

### 0, U. The Corrective Action Records were all categorized a "major" and they summarized the aircrafts' discrepancies. Id. 

### The DiscrepancyNotices contained a section for Respondent to describe the corrective actions it accomplished to address the discrepancies. Id. 

### In Corrective Action Record No. QAACVG004, CCIA reported that on N899AA, its PMI "discoveredthe RIH 

### [right-hand] flying door [forward] hinge has damaged the mid section [sic]
... ofthe inboard flap fairing" and the "damage to the fairing was out oflimits."FAAEx. 

### 0 at 1. As to the cause ofthe discrepancy, CCIA's mechanics found thatthe "flying doorhinge pin [had] migrat[][ed] out ofthe hinge assembly," which "was not properly installed[,] allowing the pin to migrate." Id. 

### CCIA noted thatRespondenthad last replacedthe right-hand main landing gear on N899AA's. Id. 

### Inresponse to Corrective ActionRecordNo. QAACVG004, Respondent noted that its technician "reviewedthe maintenance manual concerningthe installation ofthe door and hinge pins" and found that "[a] training andprocedural error occurred during the hinge
9

### pin installation" as the "technician and inspector were unaware that Boeing has a Product Standard Process
... for ensuring the hinge pins are secure." 

### Id.; FAAEx. P at 1. Respondent also notedthat to prevent future reoccurrences, it developed and put in place a Boeing "727 main landing gear WingDoor Training Module." FAAEx. Pat 1-2. Additionally, Respondent had the "[p]ersonnel involved in the installation for [] N899AA

... review[ ] the maintenance manual concerningthe installation ofthe door andhinge pins." I

### d. at 2. In

### Corrective ActionRecordNos. QAA005 and QAACVG006, CClA reported that
onN898AA andN287SC respectively, its Principal Maintenance Inspector "discoveredthe RIH [right-hand] flying door hinge ha[][d] play and damage to the fairing" and the "damage to the fairing was out oflimits." FAA Ex. U at 1. As to the cause ofthe discrepancy, CCIA's mechanics found that the door was out ofrig and that the "rigging ofthe door was not proper afterthe gear change" whichRespondent performed during the last C-check. I

### d. Inits response to these discrepancies, AMES reported that "training" and "other" were "contributing factors" to the cause ofthe discrepancy, noting that it was providing Boeing "727 main landing gear wing door training" and "additional training" for technicians "to specially look atthese areas for this type ofdamage." 

### Id. Additionally, Respondent created task cards for "MainLanding Gear -Removal/Installation" ofthe right and leftmain landing gear. FAAEx. Vat 2; FAAEx. EE at 1-2. E. The FAA Letters oflnvestigation and Respondent's Response 

### On September 30, 2010, the FAA sent CCIA a letter ofinvestigation explaining that the FAA was investigatingmaintenance performed on the main landing gear doors of N899AA, N898AA, and N287SC, as all three aircraft had landing gear doors that were
10

### misrigged, with wrong or missing parts installed in the attach fittings for the doors, and with consequent damage to landing gear doors and airframe. FAA Ex. FF at 1-3. CCIA responded on October 25, 2010, explainingthat it had completed its own investigation ofthe misrigged flying doors, attaching the two DiscrepancyNotices containing the three Corrective Action Records. FAAEx. Hat 1-3. CCIA concluded, after its investigation, that Respondent "didnot follow" the "FAA approved manual[] ofInstructions for Continued Airworthiness" whichrequires use ofthe "Boeing [ ]727 AircraftMaintenance Manual (AMM)." 

### Id. at 2. CCIA explainedthat Respondent hadreactedto this fmding "with a modifiedtraining program." 

### Id. OnMarch 3, 2011, the FAA sent Respondent a letter ofinvestigation informing Respondentthat the FAA was investigatingthe improperly installed and misrigged main landing gear doors onN899AA, N898AA, and N287SC. FAAEx. GG. The letter indicated thatRespondent performed the latest main landing gear door installations, and that these
were not accomplished in accordance with theAMM or CCIA's maintenance program. I

### d. at 1-2. OnMarch 21, 2011, Respondent sent a letter in response indicating that it had "undertaken a very detailed investigationto review all aspects ofthe issue." FAA Ex. HH at 1. Respondent's letter corrected the FAA's noted dates that Respondent released the three aircraft, and it assertedthat it was not responsible for the misrouting ofthe anti-skid conduit
onN287SC. 

### Id. at 1. 

### As to the remainder ofthe FAA's assertions in the letter of investigation, however, includingthe FAA and CCIA's findings thatRespondenthad failed to follow CCIA's Boeing 727 AMM, Respondent stated: The results of our review and actions taken were documented on CCIA's Corrective Action Report #'s QACVG0004, QAACVG0005, and QAACVG0006
.... The details ofthe investigation and results have been sent

11

### to you by CCIA in a letter dated October 25, 2010..
.. We worked very closely witb the operator to put a corrective action plan together that would preventthe reoccurrence.... Id. 

### at 1. The DiscrepancyNotices containingthese CorrectiveAction Records were signed by CCIA and AMES, andthey concluded that the main landing gear doors had not been properly installedby Respondent. FAAEx. 0, P, U, V, 

### EE. ADMINISTRATIVE LAW JUDGE'S DECISION 

### OnMay 5, 2015, theALJ issued anInitial Decision which adopted byreference tbe April 

### 1, 2015 Order grating in part summaryjudgmentfor the FAA, based ontbe ALJ's holding thatRespondent committednine total violations ofSections 4 3.13(

### a), 4 3.13(b), and 145.205(a) oftbe FARwhen it performedmaintenance on the three Boeing 727 aircraft identified as N899AA, N898AA, and N287SC, on or about August 2009, October 2009, and March 2010, respectively. ALJ Initial Decision at 4. In granting the FAA's motion for summaryjudgment inpart, the ALJ made preliminary evidentiary rulings. April!, 2015 Order at 4-13. I. The ALJ's Evidentiary Rulings 

### The ALJ admitted and considered all butExhibit A ofthe FAA's exhibits submitted
onthe motion for summaryjudgment. Id. 

### at 4-5. As for Respondent's exhibits, the ALJ excluded the Expert Report ofDaniel J. Hancher, and she restricted the use ofJeffrey Becker's Declaration andDeposition. 

### Id. at 6, 

### 7-13, 27-28. The ALI excluded Mr. Hancher's Expert Report as "unreliable and inadmissible." Id. 

### at 27-28. Rule 702(b) ofthe Federal Rules ofEvidence requires that the facts or datareviewedby an expertmust be

12sufficient to render his testimony reliable, but Respondent only providedMr. Hancherwith two sets ofRespondent's maintenance records and the FAA-compiled Statement ofthe Case, whichthe

### ALI concluded renderedMr. Hancher's expert opinion testimony "too limited innature." 

### !d. at 27-28. The ALI acceptedMr. Becker's Declarationto demonstrate Mr. Becker's qualifications, but not as additional testimonial evidence onthe merits in oppositionto the FAA's Motion for Summary Judgment because it was only offered as a supplemental submission for the limitedpurpose ofaddressing the reserved admissibility objections to the proffered evidence. 

### !d. at 6. Respondent offeredMr. Becker's Deposition as expert testimony, but the ALJ only admittedthe deposition as specialized lay opinion testimony underthe limited exception of Fed. R. Evid. 701. 

### !d. at 7-13. The

### ALInoted and agreed with the FAA's objections to Mr. Becker's proffered expert testimony,5 and applied the four factor test for the exclusion of evidence as a sanction for the failure to comply withthe discovery deadlines and requirements inthe ALI's discovery order, as permittedunder 14 C.F.R. § 13.217(±) and Rule 37 ofthe Federal Rules ofCivil Procedure. 

### !d.; See 14 C.F.R. 

### § 13.217([); Fed. R. ofCiv. Proc. 37. The four factor test for the exclusion ofevidence weighed in favor ofprohibiting Mr. Becker's testimony as experttestimony. April!, 2015 Order at 10-12. The ALI also noted: [M]uch of Mr. Becker's proffered deposition testimony (Exh. 1) was fragmented, difficult to follow, and did not clearly identifY or attach the
5 The FAA objectedto the presentation ofexpert testimony by Mr. Becker on multiple grounds, including: a) Mr. Beckerhad not beentimely identified as an expert; b) Mr. Becker's testimony was proffered for the limited purpose ofrebutting FAA expertInspector Christensen, who was excluded as a witness; c) Respondent produced Mr. Beckerfor the FAA discovery deposition as a company representative, not as an expertwitness; and d) Mr. Becker's testimony was not reliable as experttestimony because it was based on speculative hearsay, implausible suppositions, unverifiable maintenance record entries, ignoredthe facts inthe record, andwas inconsistent withhis own deposed testimonial statements andhis prior admissions to the FAA. 

### !d. 13

### deposition exhibits or data that Mr. Becker was reviewing. Substantial portions of Exhibit I did not offer expert testimony or analysis, but instead offered fact witness testimony, fact opinion, general assumptions or suggestions, and speculation. In addition
... he did not provide [his technical opinions] [ ] in conjunction with a discussion ofgeneral industry standards or 

### methods, to demonstrate that he had 'reliably applied the principles and methods' ofexpert knowledge and analysis to the facts ofthe case. 

### Id. at 11-12 (citingFed. R. Evid. 702(c), (d)). II. TheALJ's Analysis And Conclusions The ALJ addressed the regulatory language inthe three alleged violations ofthe FARs, noting that 14 C.P.R.§ 125.205(a) mirrored and includedthe regulatory requirements in 14 C.P.R.§ 43.13(a), (b). April!, 2015 Order at 13-15. The AL.T found that there were four elements pertaining to the substantive law in question, 14 C.P.R. § 145.205(a), and she identified them as follows: "1) whether the Respondent was a certificated repair station; 2) whether the Respondent performed maintenance on the aircraft; 3) whether the maintenance was performed for an air 

### carrier that has a CAMP under part 121; and 4) whether the Respondent used and followed Boeing's 727 Aircraft Maintenance Manual ("AMM") inperforming that maintenance." !d. at 16. The ALJ found that the first three elements were established as Respondent had admitted to them in its Answer. Id 

### at 15-16. As to the fourth material fact, the ALJreviewed each party's evidence and concluded that there was no genuine dispute ofmaterial fact. Id. 

### at 26-27. The ALJ reviewed and summarized the FAA's proffered evidence, which included but
was not limited to: a) Inspector Lipinski's Declaration; b) Inspector Statements from the May 25-27, 2010 FAA Inspection ofCCIA's Boeing 727 aircraft; c) CCIA's October 25, 2010 response to the FAA letter ofinvestigation; d) Respondent's March 21, 2011 response to the FAA letter ofinvestigation; and e) excerpts from Becker's Deposition. 

### Id. at 16-21.

14

### The ALJ concluded that this evidence comprised ofF AA expert opinion, Respondent's admissions, and maintenance records, establishedthat "the damage discovered on each aircraft during the May 2010 inspection" was causedby Respondent's "improper installation and rigging ofthe flying doors," and that Respondent had admitted that it had "failedto follow CCIA's program and applicable sections ofthe AMM inperformingthe main landing gear maintenance." ld. 

### at 21-22. The ALJ found that "the FAA met its initial burden of proof'' under the summaryjudgment standard in Rule 56 ofthe Federal Rules ofEvidence. Id. 

### at 21-22. The ALJ then considered Respondent's evidence in oppositionto the FAA's motion for summaryjudgmentto determine ifRespondent had set forth specific facts sufficientto raise a genuine dispute ofmaterial fact. Id. 

### at 22-28. The ALJ explainedthat Respondent's proffered evidence consisted, in large part, ofexcerpts from Mr. Becker's Deposition, which
was only admitted as specialized lay opinion testimony, and the Expert Report ofMr. Hancher, whichwas excluded as unreliable and inadmissible. 

### Id. at 22-28. The ALJ thoroughly discussed Mr. Becker's deposition testimony, and found serious issues undermining the reliability ofthe testimony. Id. 

### at 22-27. TheALJnotedthatMr. Becker testifiedthat he did not have any personal recollection ofwhat discrepancies, ifany, had been found on each aircraft, and thatpriorto his employmentwithRespondent, he had no experience working withBoeing 727s. Id. 

### at 20, 22-23. Additionally, the ALJ pointedto Mr. Becker's explanationthat when early in the investigation he had spokento Respondent's aircraft technicians and inspectors who hadperformedthe main landing gear installations, they had no independentmemory ofwhat main landing gear installation work they performed onthe aircraft. Id. 

### The ALJ also consideredthat Mr. Beckertestifiedthat

15

### he did not recall the specific results ofRespondent's own internal investigation after the FAA's May 2010 inspection. Id. 

### at 20. As a result, the ALJ concludedthat it was unfounded whenMr. Becker "generally speculated" that the main landing gear damage was the result ofeither normal wear andtear
or an intervening tire change, rather than improper installation andrigging ofthe flying doors. Id. 

### at 21-24. The ALJ noted that although Mr. Beckertestifiedthat the discrepancies
werejust "wear and tear," whenhe was asked to specifically look at maintenance repair records during the deposition, he was unable tojustifY his opinion. 

### Id. at 24. For example, whenMr. Beckerwas asked about what Respondent's maintenance records meantby "[hinge pins] improperly installed," he testified that he had "no comment." Resp't Opp. Ex. 1 at 101. When asked ifa damaged left-hand inboard flap fairing on the wing door needed to be repaired in accordance with Boeing'sAMM, Mr. Becker replied, "Yeah. I mean, no. I'm thinking. I don't- yeah. No, I don't know." Id. 

### at I

### 02. As to Respondent's claim regarding the intervening tire change on N287SC, the ALJ notedthat CCIA's June 8, 2010 letter, with its investigation results, found that no maintenance on N287SC after Respondent's main landing gear installation could have accounted for the missingtubular bearing. April!, 2015 Order at 23. The ALJ also found thatRespondent's March 21, 2011 letter in response to FAA's letter ofinvestigation did not note what, ifany, additional independent investigation Respondent had performed apart from CCIA, nor did itnote any disagreement with CCIA's investigation fmdings. Id. 

### The ALJ emphasized that a problematic part ofMr. Becker's testimony was his inconsistent statement that neither he norRespondent had "stated or agreedthatthe doors
were misrigged to beginwith." Id. 

### at 24 (quoting Resp't Opp. Ex. 1 at 86). The ALJ found

16

### that this testimony was "inconsistent" withRespondent's June 10, 2010 revised training program, which acknowledgedthat misrigging was suspected. ld. The ALJ notedthat the testimony was also inconsistent with Mr. Becker'sMarch 21, 2011letter, written on behalf ofthe Respondent, in whichhe adopted CCIA's October 25, 2010 letter that concluded Respondent hadmisrigged the main landing gear on each ofthe three Boeing aircraft. !d. Moreover, the ALJ considered Mr. Becker's adoption ofCCIA's investigation results a party agent's statement against interest under Fed. R. Evid. 801(d)(2). ld. at 24-27. The ALJ notedthat "there is no proofinthe evidentiary record to show how (ifat all) Mr. Becker or any other Respondentrepresentative had limited, corrected, or disavowed the assertions in the March 21, 2011 [l]etter." 

### Id. at 26. The ALJ 

### found that Respondent had not provided reliable evidence, noting that: [L]arge portions ofthe Respondent's opposition evidence
... were based on Mr. Becker's lack of memory (e.g., we don't remember the results of our own investigation), intentional ignorance (e.g., we haven't talked to the mechanics about the repairs since our initial investigation), hopeful assumption (e.g., it is a possibility that it wasn't us), downplaying evidence (e.g., the damage was just minor nicks and scratches), lack ofknowledge (e.g., I don't know), speculation (e.g., it must be wear and tear because ofthe passage oftime), general accusations ofblame (e.g., Mr. Buck didn't investigate enough and also treated us unfairly), and unsupported opinion (e.g., because this is what we believe)
.... In addition,
... portions ofMr. Becker's testimony was discredited by his own prior statements to the FAA, codified inhis March 21, 2011 Letter. On behalfofthe Respondent, Mr. Becker expressly admitted in this Letter that the Respondent was at fault for the main landing gear improper rigging, because the Respondent's technicians and inspector had not followed CCIA's supplied and approved Boeing 727 AMM procedures. Id. at 28-29. The ALJ held that Respondent failed to create a genuine dispute as to any ofthe material facts establishedbythe FAA, and grantedthe FAA summary disposition on the nine alleged violations as a matter oflaw. !d. As to the sanction, the ALJ' 

### Initial Decision

17assessed a civil penalty of$61,875 (i.e. $20,625 per aircraft) for the nine violations, adopting byreference the April10, 2015 Order accepting Respondent's stipulation to the civil penalty amount, noting that "alitigant may chooseto waive its right to a [civil penalty] Hearing and/or to contest issues." ALJ Initial Decision at 4-5. COUNTERSTATEMENT OF THE ISSUES I. Whether The ALJ's Conclusion That The FAA Met Its Initial Burden ofProofWas Made in Accordance With Applicable Law, Precedent, and Public Policy, and Supported by a Preponderance ofReliable, Probative, and Substantial Evidence? II. Whether The ALJ's Evidentiary Rulings Regarding Respondent's Evidence Were an Abuse ofDiscretion? III. Whether The ALJ's Conclusion that Respondent Failed to Establish a Genuine Dispute over an Issue ofMaterial Fact Was Supported by a Preponderance of Reliable, Probative, and Substantial Evidence? STANDARD OF REVIEW On appeal, the Decisionmaker reviews the ALI's decision to determine whether the ALJ's fmdings offact are supported by a preponderance ofreliable, probative, and substantial evidence, and whether the ALJ's conclusions are in accordance with law, precedent, andpolicy. 14 C.F.R. § 13.233(b)(l),(2). Evidentiary rulings are reviewed under the highly deferential abuse ofdiscretion standard, Gen. Elec. Co. v . .Joiner, 522 U.S. 136, 141 (1997) (citations omitted), and they are sustained unless manifestly erroneous. In the Matter of Mark

### L. Sweeney, FAA OrderNo. 94-21, 1994 

### WL 899673, at* 1 (June 21, 1994) (citing Cella v. UnitedStates, 998 F.2d418, 422-23 (7th Cir. 1993) (quoting Salem v. UnitedStates Lines Co., 370 U.S. 31, 35 (1962))).

18

### I. The ALJ's Conclusion That The FAA Met Its Initial Burden ofProofWas Made in Accordance With Applicable Law, Precedent, and Public Policy, and Supported By a Preponderance ofReliable, Probative, and Substantial Evidence. Respondent argues the ALJ disregarded applicable precedent andpublic policy when reviewing the FAA's evidence and concluding that agency met its initial burden ofproof. See Br. at 29-37. The Federal Aviation Regulations permit a party to file a motion for a decision
onthe merits in advance ofa hearing when a party asserts that there is no genuine issue of material fact in dispute. 14 C.F.R. § 13.218 (f)(5). Such motions are analogous to motions for summaryjudgmentunder Rule 56 ofthe Fed. R. Civ. Procedure. HorizonAirIndustries, Inc., FAA Order No. 96-24, 1996 WL 509933, at *3, n. 3 (August 12, 1996); seeAnderson v. Liberty LobbyInc., 477 U.S. 242, 247-48 (1986) (explaining that summaryjudgmentmaybe granted where there is no genuine dispute as to any material fact and the movant is entitled tojudgment
as a matter oflaw). The party making the motion for summaryjudgrnenthas the initial burden ofshowing that there is no genuine issue ofmaterial fact disputed by the parties, and this burden later shifts to the non-moving party. Steven Baicker-McKee, et.al, Federal Civil Rules Handbook, 1135 (West Publishing 2012). A fact is "material" if"it is capable ofaffecting the substantial outcome ofthe litigation," and a dispute is "genuine" when "the evidence is suchthat
a reasonable trier offact could return a verdict for the non-moving party." 

### !d. (citing Liberty Lobby, Inc., 477 U.S. at 248-49). "When opposing parties tell two different stories, one ofwhich is blatantly contradicted by the record, so that no reasonablejury could believe it, a court should not adopt that version ofthe facts for purposes ofruling on a motion for summaryjudgment." Scott v. Harris, 550 U.S. 372, 380 (2007).

19A. The ALJ's Finding That the FAA Met Its Initial Burden ofProofIs Supported by a Preponderance ofReliable, Probative, and Substantial Evidence and Accords With Law Applicable to The Complainant's Burden ofProof. Respondent argues that the ALJ's decision to grant the FAA sunnnaryjudgmentwas not made in accordance with applicable law and precedent, contending that the ALJ disregarded Administrator v. Lewis, NTSB Order No. EA-1177, 1978 WL 19059 (Aug. 17, 1987),6 andIn the Matter of Florida Propeller & Accessories, Inc., FAA Order No. 97-32, 1997 WL 685987 (Oct. 7, 1997). Br. at 29-32. Respondent misunderstands the import ofbothLewis and Florida Propeller. Neither case supports Respondent's propositions that the ALJ is required to hold a hearing to consider the agency's circumstantial evidence or that circumstantial evidence is insufficient for the FAAto meet its burden ofproof. 

### !d. at 32. Lewis simply requires the ALJ to "insure that the quality ofthe evidence presentedbythe Administrator is sufficient to establish the reasonable inference that the deficient condition
... resulted from []therespondent's earlier repair." Lewis, 1978 WL 19059, at *5. Florida Propeller more narrowly holds that where the effect ofthe passage oftime is at issue, as in cases where the return to service oflife-limited parts is in dispute, expert testimony mayberequired. Florida Propeller, 1997 WL 685987, at *3-5; See also In the Matter of EmpireAirlines, Inc. EmpireAirlines, Inc., CP98NM0011, 2000 WL 869981, at *5 (June 8, 2000) (describing Florida Propeller). BothLewis and Florida Propeller acknowledge that "in cases involving allegations ofimproper repair or inspection," it "is not at all unusual" for the "[c]omplainant [] [to] use circumstantial evidence to sustain its burden ofproof." Florida Propeller, 1997 WL 685987, at *3; See Lewis, 1978 WL 19059, at *4 (explaining that "in cases where an improperrepair or inspectionis not discovered until some point intime after the act or omission which constitutes

6 NTSB case law is instructive and not binding precedent for the Decisionmaker. 20the regulatory violation, the evidence presented by the Administrator must ofnecessity be circumstantial in nature."). 1. The ALJ Complied with Lewis. The ALJ complied with Lewis as she thoroughly reviewed and discussed the FAA's evidence before concluding that the agency had established its case by a preponderance of reliable, probative, and substantial evidence. See April1, 2015 Order at 16-21. Unlike this case, inLewis the Board noted thatthere was substantial missing evidence with respect to the history ofthe aircraft during the 14-monthperiod between the maintenance and the FAA's discovery ofthe violation. Lewis, 1978 WL 19059, at *4. Notably, inLewis, the aircraft owners
were not interviewed regarding intervening maintenance onthe aircraft during the 14 month gap, the mechanic who reportedthe deficiencies was not called as a witness, it was not clear what maintenancethe mechanic performed onthe aircraft, the aircraft logbook was notintroduced into the record, and the standards and specifications for the maintenance performed were not introduced into the record. !d. There are no such evidentiary deficiencies in this case. The FAA introduced extensive evidence establishing that the three aircrafts' discrepancies resulted from Respondent's improper main landing gear installations, and the ALJ considered and discussed this evidence. See April l, 2015 Order at 16-21. The evidence included records from CCIA and Respondent, including: response letters to the FAA's letters ofinvestigation, Mr. Becker's deposition and declaration, aircraft maintenance records, aircraft discrepancy notices, and Corrective Action Records. See FAAEx. B, E·H, M-Z, BB·FF, HH, KK, PP, 

### QQ. This evidence was introduced to establish: a) that Respondent installed the main landing gears onN899AA, N898AA, and N287SC; b) the noted discrepancies that were identified on each aircraft; c) the lack ofrelevant

21intervening maintenance that could have accounted for the aircraft's discrepancies; d) theresults ofCCIA's investigation and Respondent's independent investigation ofthe discrepancies; e) the corrective actions Respondenttook to address the discrepancies; and f) Respondent's own admissions regarding the discrepancies. The FAA also otiered expert testimony from two FAA Inspectors-who personally observedmany ofthe noted discrepancies on the three aircraft-inthe form oflnspector Lipinski's Declaration andhis Inspector Statement from the May 2010 FAA inspection, along withInspector Gasche's Inspector Statementfrom the same FAA inspection. See FAA Ex. I, J, JJ, NN. The FAA also introduced the Boeing standards and specifications for the main landing gear installations and the intervening tire change, inthe form ofAMM 32-11-00, AMM 32-12-11, AMM 32-45-01, andAMM 32-12-00. See FAAEx. C, D, LL, MM. The ALJ carefullyreviewed this evidence and concluded that "the FAA metits initial burden ofproof," establishing that "the damage discovered on each aircraft during the May 2010 inspection"
was causedby Respondent's "improper installation andrigging ofthe flying doors," and that Respondent had admittedthat it had "failedto follow CCIA's program and applicable sections ofthe AMM in performingthe main landing gear maintenance." April!, 2015 Order at 21-22. 2. WhileFloridaPropeller Is NotDirectly Applicable, The FAA Nonetheless Introduced Expert Testimony. Respondent's claimthat the precedent in Florida Propeller applies butthatthe ALJ disregarded it is not supportedby the record. Florida Propeller is not applicable because this
case does not involve a dispute over the effect ofthe passage oftime on life-limited parts after theirreturn to service. Nevertheless, the FAA introduced expert testimony establishing thatthe

22aircraft discrepancies were not normal wear and tear and thatthe missing tubular bearing on N287SC couldnot have been caused by an intervening tire change. FAA expert Inspector Lipinski carefully observed the damage onthe three aircraft. While he observed that the aircraft had very minor general wear and tear, he explained thatthe discrepancies relevant to the main landing gear installations were not consistent with normal
wear andtear (e.g. normal wear andtear might consist ofpaint deterioration, worn or tomrubber seals, aged lubrication, affixed dirt, or metallic dust in the hinges). FAA Ex. NN at 49-50; FAA Ex. 

### J.T**~~** 13, 14, 24, 27, 30, 33, 42. Instead, the damage was clearly caused by the main landing gear doors, hinges, flap track fairings, and other components scraping, rubbing, orbinding against each other, which does not occur when the components are properly installed. FAA Ex. I at 1-2; FAA. Ex. JJ at 4,**~** 14-15. FAA expert Inspector Gasche also noticed that the main landing gear doors onthe aircraft were out ofalignment, as they showed rubbing at the hinge, andthere was damage to the gear door and binding onthe flap track fairing cover. FAA Ex. 

### J. Inspector Lipinski explained that when main landing gear doors are properly rigged, the flying doors and associated structures have ample clearance betweenthem, and components like the hinges are notputinto unduly forceful contact. FAA Ex. JJ**~** 15. Inspector Lipinski's observations ofCCIA's other Boeing 727 aircraft during the FAA's May 2010 inspection, including some aircraft thathad been flying much longer since their more recent C-checks, did notreveal the sort ofdamage observed onN899AA, N898AA, andN287SC. FAA Ex. JJ at 4,**~** 14. Additionally, Inspector Lipinski noted that some ofthe aircraft's discrepancies were improper hardware configuration that failed to comply with the Boeing AMM, whichbore no relation to wear and tear. FAA. Ex. I at 1-2. He noted that the shims onthe three aircraft were

23not arranged inthe order specified inAMM 32-12-11, Figure 401. FAA Ex. JJ at 4, '1[ 12-14;
see FAA Ex. D (AMM 32-12-11, at p. 403-405, Fig. 401 (Sheet 1-3); p. 502 Fig. 501). As to N899AA, Inspector Lipinski found that Respondent had not: 1) installed and secured the hinge covers, including the hinge pins; 2) configured the shimming washers on the forward and aft hinges; and 3) shinnned the gear fitting. FAA Ex
. .TJ at 5, '1[ 20-22. Respondent thereby failed to comply withtherequirements in AMM 32-12-11 and AMM 32-11-00. See FAA Ex. D (AMM 32-12-11, atp. 403-405, Fig. 401 (Sheet 1-3); p. 502 Fig. 501); FAAEx. C (AMM 32-11-00, at p. 422-423 '1[ AL(2), (4), (18)). As to N287SC, Inspector Lipinski found that Respondent had not properly installed and securedthe hinge covers, including the hinge pins, resulting in noncompliance with the requirements inthe AMM 32-11-00. FAA Ex. JJ at 8, '1[ 41; see FAA Ex. C (AMM 32-11-00, atp. 422-23 '1[ AL(ll), (18)). Inspector Lipinski's testimony also established thatthe missing tubular bearing on N287SC could not have been caused by an intervening tire change that was performed in accordance withthe Boeing AMM 32-45-01, which specifically instructs mechanics not to
remove the actuation rod attachmentboltthat holds thetubular bearing inplace while performing tire changes. FAAEx. KK at 124; FAAEx. LL (AMM 32-45-01); FAAEx. C (AMM 32-11-00, at p. 404-405 Figs. 401 and402). As InspectorLipinski explained, when mechanics perform a tire change on a Boeing 727, they simply remove two bolts onthe flying door actuation rod that are specifically designed for tire changes. FAA, Ex. KK at '1[ 36. Once the bolts are removed, the actuation rod extends, and the bolts are put back into place to support the flying door while the wheel is changed. Id.; see FAA Ex. LL (AMM 32-45-01, at 401-404). In sum, the tire change procedure "could not possibly have any effect onthe tubular bearing." FAA Ex. JJ at

### '1[ 36.

24Addressing Mr. Becker's speculation that a mechanic couldhave performed a tire change
onN287SC without following the AMM by removing the actuation rod from the flying door, as
a "shortcut," Inspector Lipinski explained that this "wouldhave made [][the mechanic's]life much more difficult," andthat he had "never seen or heard ofa mechanic changing a Boeing [ ]727 wheel inthat way." 

### !d. at'\[ 36-37. In contrast to the tire change, the main-landing gear installation that Respondent performed requires mechanics to remove and reinstall the actuation rod withthe tubular bearing. See FAA Ex. C (AMM 32-11-00, atp. 402 '\[3.F(3); p. 404 Fig. 401; p. 422 '\[ AL(ll) (requiring mechanics to "remove actuation rod from airplane")); FAAEx. D (AMM 32-12-11, at p. 401 '\[ 3.C-D, 4.I). Mr. Becker's unsupported speculation about the tire change does not create a material issue offact in the face ofinspectorLipinski's explanation and un-rebutted expert opinion that a tire change could not account for the missing tubular bearing on N287SC. 

### B. The ALJ's Consideration ofRespondent's Response to theFAA's Letter of Investigation Was Proper. Respondent argues thatthe ALJ erred by concluding that its response to the FAA's letter ofinvestigation was a party admission. Br. at 32-37. Respondent claims that its response did not adopt the adverse findings in CCIA's October 25, 2010 letter or CCIA's Corrective Action Records. 

### !d. Respondent's March 21, 2011 response to the FAA's letter ofinvestigation was writtenby

### Mr. Becker, who was Respondent's authorizedrepresentative whenhe authored the letter. FAAEx. HH. The response letter indicatedthatRespondent had "undertaken a very detailed investigation to review all aspects ofthe issue," andthat the investigation results had beenprovided to CCIA, with which it had "workedvery closely
... to put a corrective actionplantogether that wouldprevent ... reoccurrence." 

### !d. at 

### 1. The letter noted thatthe FAA was providedwith CCIA's October 25,2010 letter with "details ofthe
25

### investigation and results," and with the Corrective ActionRecords containingthe "results of
ourreview and actions," which indicatedthat Respondent hadmisrigged the main landing gear doors onN899AA, N898AA, and N287SC, because ofits failure to follow the Boeing AMM. 

### Id. (referring to FAAEx. 0, P, U, V, 

### EE). Respondent's letter did not contain any indicationthatRespondent's investigation findings differed from CCIA's findings, in contrast with Respondent's explicit disagreement with the FAA's noted aircraftrelease dates, andRespondent's denial ofany responsibility for the misrouting ofthe anti-skid conduit on N287SC. 

### Id. at 1-2. As the ALJ

### noted, "there is no proofin the evidentiary recordto show how (ifat all) Mr. Becker or any otherrepresentative ofRespondent had limited, corrected, or disavowedthe assertions inthe March21, 2011 [!Jetter." April 1, 2015 Order at 26. Respondent also claims thatthe ALI's consideration ofits response to the FAA's letter of investigation is "badpublic policy," because it will have a chilling effect on the enforcement resolution process. Br. at 33-34. To the contrary, the letter ofinvestigation provides the party with notice ofthe investigation and provides an "opportunity for the apparent violator to tell his
or her side ofthe story." FAA Order 2150.3B, at 4-10**~9.a(1).** 

### "Learningthe other side ofthe story early inthe investigation is to everyone's advantage." 

### Id. Mr. 

### Becker made the admission freely in the March 21, 2011letter onbehalfofRespondent and there is nothing inthe record that casts any suspicion on the reliability ofthe admission. 

### See FAA Ex. HH at 1. As noted by the ALJ, it is well established that a statement ofa party opponent may be offered against that party in a civil action. April!, 2015 Order at24-27 (citing Fed. R. Evid. 801(d)(2)). When a party opponent admits "damaging facts," the admission is considered to have "special reliability" and may be used to prove the truth offacts asserted. 2 McCormick onEvidence§ 259 (7th ed.).

26Respondent admits that letters ofinvestigation and the response letters provide for "the forthright airing ofpositions and reactions to possible violations." Br. at 33. Accordingly, use of Respondent's admission contained in the responses to the FAA's letter ofinvestigation is consistent withthe public interest in fairly adjudicating this case. 

### II. The ALJ's Evidentiary Rulings Regarding Respondent's Evidence Were Not an Abuse ofDiscretion. The ALJ excluded Mr. Hancher's Expert Report, restrictedthe use ofMr. Becker's Declaration solely to establish his qualifications, and ruledthat Mr. Becker'sDeposition
was only admissible as lay opiniontestimony. Aprill, 2015 Order at 6, 7-13, 27-28. The ALJ thoroughly explainedthese ruling andRespondent only challenges the ALJ's exclusion ofMr. Hancher's Expert Report. Br. at 37-41. Evidence offered to support or oppose a motion for summaryjudgment must be capable ofbeing offered at trial in an admissible form. 

### See Fed. R. Evid. 56 (On a motion for summary judgment, a party asserting that a fact is not genuinely disputed can support the assertion by showing that "an adverse party cannot produce admissible evidence to support the fact."). Rule 702 ofthe Federal Rules ofEvidence requires anexpert witness' testimony to be "based on sufficient facts or data." Fed. R. ofEvid. 702(b). AnALJ mayreceive relevant and material evidence, and exclude evidence that is irrelevant, immaterial, orundulyrepetitious. 14 C.F.R. §§ 13.205(a)(5), 13.222(b). The ALJ ruled that Mr. Hancher's report was "unreliable and inadmissible," excluding the report from the record. April1, 2015 Order at 27-28. This ruling was based onthe ALJ's finding thatMr. Hancher was "given only limited information to reviewwhenpreparing his report." 

### Id. at 27. Respondent admits that it only providedMr. Hancher withRespondent's maintenance records, and the FAA-compiled Statement ofthe Case, but it argues that Mr.
27

### Hancher could not have reviewed additional documents because he authored the report on April30, 2014, before additional evidence was available. Br. at 38-40. Respondent's premise is erroneous, as the following documents existed, but were not provided to Mr. Hancher, atthe time thathe wrote his report: 1) Respondent's March 21, 20llletter containing Respondent's investigation findings; 2) Respondent's June 10,2010Revised Boeing 727 Main Landing Gear Door Installation Training Program; 3) CCIA's October 25, 2010 letter with its investigationresults, 4) CCIA's June 2010 Corrective Action Records containing the results ofCCIA and Respondent's review ofthe discrepancies and Respondent's corrective actions; and 5) InspectorLipinski's and Inspector Gasche's May 25-27, 2010 Inspector Statements from the FAAInspection ofCCIA's Boeing 727 aircraft. These records constitute a significant portion ofthe evidence relevant to the disposition ofthis case, but Respondent chose notto provide this evidence to its retained expert. Notably, Respondent's own motion for sununaryjudgment did not attach or address Mr. Hancher's report. See generally 

### Resp't. Mot. for SJ. Additionally, Respondent's argument that the ALJ shouldhave allowed the case to go to hearing so that Mr. Hancher couldtake the stand and correct deficiencies inhis report is misplaced. Br. at 39. From the outset, an expert's writtenreport is required to contain "the basis andreasons" for his expert opinions, and "the facts or data considered" in forming his opinion. Fed. Rule Civ. Proc. 26(a)(2)(E). IfRespondent felt that Mr. Hancher's report required additional explanation, it couldhave requestedpermissionto supplement or correct its submission. Additionally, Mr. Hancher couldhave supplementedhis Expert Report after Mr. Becker and InspectorLipinski's depositions were taken, butRespondent did notprovide

28these transcripts to Mr. Hancher. Accordingly, the ALJ's well-explained exclusion ofMr. Hancher's expertreport was not an abuse ofdiscretion. April 1, 2015 Order at 27-28. III. The ALJ's Conclusion that Respondent Failed to Establish a Genuine Dispute over an Issue ofMaterial Fact Was Supported by a Preponderance ofReliable, Probative, and Substantial Evidence in The Record. Respondent contends that it proffered sufficient opposition evidence for the ALI to find that it hadraised a genuine dispute as to the cause ofthe aircraft's noted discrepancies, but that the ALI erred by weighing the evidence in the record in favor ofthe FAA. Br. at 15-28, 37-41. On a motion for summaryjudgment, "once the moving party has established a primafacie case, the burden shifts to the non-moving party." Steven Baicker-McKee, et.al, Federal CivilRules Handbook, 1134 (West Publishing 2012). While the ALI must view all evidence and inferences in light most favorable to the non-moving party, it may not rely solely on denials or allegations inthe pleadings. LibertyLobby, Inc., 477 U.S. at 256. A non-moving party who wishes to proceed to trial must "set[ ] forth specific facts sufficient to show there is a genuine issue for triaL" !d. (citing Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986)). To raise a genuine dispute, the "caliber" and "quantity" ofthe evidence presented must "allow a rational finder offact," return a verdict for the nonmoving party. LibertyLobby, Inc., 477 U.S. at 254. A "genuine" dispute is not created by a "mere scintilla" offavorable evidence,
or evidence that is "merely colorable
... or is not significantly probative
...." 

### Id. at 249-50, 252 (citations omitted). "'Where the record taken as a whole could not lead a rational trier offact to find for the nonmoving party, there is no []genuine issue for trial."' Harris, 550 U.S. at 380 (quoting Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 586-587 (1986)). Therefore, while an ALI may not "weighthe evidence and determine the truth ofthe matter," his "inquiry
... unavoidably asks whether reasonablejurors could fmd by a preponderance ofthe

29

### evidence that the plaintiffis entitled to a verdict." LibertyLobby, Inc., 

### 477 U.S. at 249, 252. Respondent's various arguments conflate the 

### ALI's evidentiary findings and consideration ofthe record as a whole with improper exclusion and weighing ofthe evidence. A. The ALJ's Finding That Respondent's Tire Change Evidence Did Not Create a Genuine Dispute 

### as to Any Material Fact Is Supported by a Preponderance ofReliable, Probative, and Substantial Evidence. 

### Respondent admits that when N287SC was inspected, less than a month after it approved the aircraft for return to service, there was a missing tubular bearing inthe right-hand flying door assembly. FAA Ex. W, X, Y, Z, CC, DD. Respondent claims that an interveningtire change that occurred three days after Respondent installedthe main landing gear was the cause of this missing tubular bearing. Br. at 22-25. The only record evidence thatRespondentrelies
onto supportthis allegation is Mr. Becker's deposition. Id. 

### Respondent claims that the ALJ disregarded Mr. Becker's testimony. Id. 

### at 25-26. The ALJ thoroughly considered Mr. Becker's lay testimony, concluding that it was speculative and unsupported. April!, 2015 Order at 22-29. Mr. Becker's deposition was taken ahnost five years after the maintenance violations occurred, and he had very little recollection ofthe period whenthe maintenance violations were discovered. 

### See FAAEx. B. The ALJnotedthat Mr. Becker did nothave any personal recollection ofwhat discrepancies were found on each aircraft or what the specific results ofRespondent's own internal investigation were. April!, 2015 Order at 22-23. Mr. Becker testified that early in the investigation whenhe had spoken withRespondent's aircraft technicians and inspectors, they had no independentmemory ofwhat main landing gear installation workthey performed. FAAEx. B at 41; FAA Ex. KK at 40-41.

30

### The ALJ found that Mr. Becker "generally speculated" whenhe testifiedthat an intervening tire change, not improper maintenance, was the cause ofthe missing tubular bearing inN287SC. Aprill, 2015 Order at 21-24. Mr. Becker's opinion was notbased on his personal koowledge or any facts inthe record, but rather on a "possibility" that the tubular bearing "couldhave" fallen out during an interveningtire change, ifmechanics had not performedthe tire change in accordance with the BoeingAMMs. FAAEx. KK at 47, 124. CCIA's Continuous Airworthiness Maintenance Program requires mechanics to comply with the Boeing 727 AMM, which instructs mechanics performing a tire change notto
removethe actuation rod attachment boltthatholds the tubularbearing inplace. See 

### FAA Ex. KK at 124; FAAEx. LL (AMM 32-45-01); FAAEx. C (AMM 32-11-00, atp. 404 Fig. 401). Respondentprovided no factual basis for alleging that CCIA's mechanics were performing tire changes in violation ofthe BoeingAMMs, or that any such impropertire change was performed on N287SC. There is similarly no basis to Mr. Becker'stestimony that CCIA failed to consider Respondent's own investigation ofthe missing tubular bearing in N287SC. Aprill, 2015 Order at 23-24 (citing Resp't Opp., Ex. 1, at 49). As the ALJ explained, this testimony was meaningless because Mr. Becker failed to explain "what, ifany, additional independent investigation the Respondent hadperformedbeyondthe initial investigation
... with CCIA,
or what the results ofthat investigation mighthave been." I

### d. 

### at 23. Giventhe purely speculative nature ofMr. Becker'stestimony, the ALJ did not err in finding it insufficient to raise a genuine dispute as to any material fact.

31B. The ALJ's Findings That Respondent's Wear and Tear Evidence and Gear Swing Evidence Did Not Create a Genuine Dispute as to Any Material Fact Are Supported by a Preponderance ofReliable, Probative, and Substantial Evidence. Respondent claims thatthe ALJ "dismissed" its gear swing evidence and wear and tear evidence, consisting solely ofMr. Becker's lay deposition testimony. Br. at 15-22. The ALJ considered Mr. Becker's testimony regarding the significance ofconducting a gear swing and found that it was unsupported bythe factual evidence inthe record. April!, 2015 Order at 23. Mr. Beckertestified that he did not "knowhow anybody
... [could] look at a door" and conclude that it was misrigged until after "swing[ing] the gear." Resp't Opp., Ex. 1 at 71. TheALJ noted that Mr. Becker's lay opinion testimony might havejustbeen "describinghis owu limitations,"
as Inspector Lipinski and Inspector Gasche were both able to conclude that the main landing gear doors were misrigged without performing a gear swing, as discussed in SectionLA above. April 1, 2015 Order at 23; 

### See FAA Ex. JJ at 4,**~** 15; FAA. Ex. I at 1-2; FAA Ex. J. Mr. Becker's limited mechanical knowledge is notable, as Respondent's owuattorney even objected to Mr. Becker answering questions regarding mechanical expertise, noting, "I don'tknowthat your understanding ofwhat a mechanic would do is relevant, but ifyou can, answer the question." Resp't Opp. Ex. 1 at 113. The ALJ also considered Mr. Becker's testimony alleging that the aircraft's discrepancies
were attributable to normal wear and tear. April!, 2015 Order at 22-29. Mr. Becker testified that Respondent's maintenance records demonstrated only "minor" discrepancies that he described as "wear andtear" requiring only "blend and treat," which he equated with "prepping
a surface and puttingpaint on it." Resp't Opp., Ex. 1 at 68, 87. The record evidence contradicts Mr. Becker's assertion, as the Corrective Action Records describing the aircraft's discrepancies
were all categorized as "major," and these were signed byRespondent. FAA Ex. 0, U. Some
32ofthe discrepancies consisted ofimproper configuration, such as missing mounting hardware and improperly installed spacing shims on the "doors to airframe attach fittings," which cannot be described as wear and tear on an aircraft. FAA. Ex. I at l-2. As explained in Section LA above, the damage onthe main landing gear doors was not consistent with wear and tear. Moreover, the ALInoted that when Mr. Becker was askedto look at the maintenance repair records duringthe deposition, was unable tojustifY his opinion. April!, 2015 Order at 24. For example, whenMr. Becker was asked whatRespondent's maintenance records meantby "[hingepins] improperly installed," he testifiedhe had "no comment." Resp't Opp., Ex. I at I 0I. He admitted that he understood an improper hardware stack up, in the context ofthis noted discrepancy, to mean thatthe hinges were not properly shimmed and the main landing gear doors were out ofrig, which bears no relation to wear and tear. FAAEx. B at 84-85. Notably, Mr. Becker was not even aware that the main landing gear maintenance had to be repaired in accordance withBoeing'sAMM, as he responded as follows when asked: "Yeah. I mean, no. I'm thinking. I don't- yeah. No, I don't know." Resp't Opp. Ex. I at I 02. Accordingly, the ALJ did not abuse her discretion in concluding that it was unfoundedwhenMr. Becker "generally speculated" thatthe aircraft discrepancies were the result ofnormal wear andtear. April!, 2015 Order at 21-24. CONCLUSION For all the foregoing reasons, the FAA respectfully requests that the Administrator affirm the ALI's May 5, 2015 decision, incorporating the April I, 2015 Order Granting In Part and Denying in Part the FAA's Motion for Sununary Judgment, and imposing a civil penalty of $61,875, per Respondent's stipulation, based on Respondent's nine total alleged violations of Sections 43.13(a),(b), and 145.205(a) ofthe Federal Aviation Regulations.

33Respectfully submitted,
Peter J. Lynch Assistant ChiefCounsel for Enforcement

...

**~-~~---.,\** 

# .·A

**~-.&JJ**



## .'~""~;!At i/ JiY•o • L-"""' "

**~**

JessiJKabaz-Gomez Attorney, AGC-300 Federal Aviation Administration Office ofthe ChiefCounsel 800 Independence Avenue, S.W. Washington, D.C. 20591 Telephone: (202) 267-7395 Facsimile: (202) 267-5106 Dated: July 29,2015

34CERTIFICATE OF SERVICE 

### I certify that onthis date I sent by certified mail, return-receipt requested a copy ofthe foregoing Reply BriefIn the Matter of Airborne Maintenance andEngineering Services, 

### DocketNo. FAA2013-0291, FAA CaseNo. 2011S0290032, to: RobertP. Silverberg, Esq. L.Jeffrey Johnson, Esq. 1101 30th Street, N.W. Suite 300 Washington, D.C. 20007 rsilverberg@sgbdc.com I also certify that on this date I delivered the foregoing by personal delivery (original and two copies) to: Federal Aviation Administration 600 Independence Avenue, S.W. Wilbur)frightBuildin -Suite2Wl000 Wasljng'ton, D.C. 205**~**

### (Att¢n,tlo~~g 1ketClerk, AGC-430)

35