In the matter of 

U.S DEPARTMENT OF TRANPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

RECEIVED 

JUL 2 9 2015 

HEARING DOCKET 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES 

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Docket No. FAA-2013-0291 

FAA Case No. 2011S0290032 

Respondent -Complainant 

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ADMINISTRATOR'S REPLY BRIEF 

Pursuant to section 13.233(e) of the Federal Aviation Regulations, 14 C.P.R. 

§ 13.233(e), Complainant, the Federal Aviation Administration ("FAA"), files this brief in reply 

to Respondent's brief on appeal of the initial decision issued by Administrative Law Judge 

("ALI") J. E. Sullivan on May 5, 2015, in the above-captioned matter. 

STATEMENT OF THE CASE 

On May 29,2013, the FAA issued a Final Notice of Proposed Civil Penalty ("NO PCP") 

against Respondent, Airborne Maintenance and Engineering Services ("AMES"), a certificated 

aircraft repair 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) of the Federal Aviation Regulations ("FAR"). 1 The 

1 14 C.P.R.§ 43.13(a), provides: 

(a) Each person performing maintenance, alteration, or preventive maintenance on an 

aircraft, engine, propeller, or appliance shall use the methods, techniques, and 

practices prescribed in the current manufacturer's maintenance manual or Instructions 

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, or performing preventive maintenance, shall do 

that work in such a manner and use materials of such a quality, that the condition of 

the aircraft, airframe, aircraft engine, propeller, or appliance worked on will be at 

least equal to its original or properly altered condition (with regard to aerodynamic 
FAA 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 that the improper maintenance occurred when Respondent failed to reinstall and rig the 

flying doors associated with the aircrafts' right and left main landing gear in accordance with the 

Boeing 727 Aircraft Maintenance Manual ("AMM") as required by CCIA's Continuous 

Airworthiness Maintenance Program ("CAMP"). On June 22, 2013, the FAA filed the Final 

NO PCP 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. On February 16, 2015, Respondent filed an Answer in 

Opposition to Complainant's Motion for Summary Judgment ("Resp't Opp."). On February 17, 

2015, the FAA filed its Response in Opposition to Respondent's Motion for Summary Judgment. 

On February 26, 2015, each party filed a reply in support of its respective motion for summary 

judgment. On March 13,2015, the ALJ held telephonic oral argument on the parties' motions 

for summary judgment. 

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 Part the 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 or part 135 must follow the air 

carrier's or commercial operator's program and applicable sections of its maintenance 

manual. 

2 
was no genuine dispute as to any material fact with the exception of the FAA's proposed civil 

penalty, for which a hearing was scheduled from May 5-9, 2015. On April 8, 2015, Respondent 

filed a stipulation regarding the amount of the FAA proposed civil penalty and withdrawing the 

request for a hearing on the 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 per aircraft) for the nine total 

violations of Sections 43.13(a), 43.13(b), and 145.205(a) of the FAR, and adopting by reference 

the April!, 2015 Order granting in part sunnnary judgment for the FAA, and the AprillO, 2015 

Order accepting Respondent's stipulation. On May 6, 2015, Respondent timely appealed the 

Initial Decision to the FAA Administrator. 

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 replaced the right and left main landing gear on three different Boeing 727 aircraft 

(N899AA, N898AA, and N287SC respectively) which included removing and then reinstalling 

and rigging the left and right main landing 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 owned by 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 in accordance with the Boeing 727 AMM. Compl. 

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~ 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-l 0. 

A. The Vibration Incident on N287SC and the Missing Tubular Bearing 

On April16, 2010, N287SC departed for a flight from Cincinnati (CVG), but then 

had to return to CVG when vibration was noted in the aircraft. FAA Ex. Y, Z, AA, BB. 

Upon CCIA's inspection of the aircraft, it found that a tubular bearing was missing from 

the right-hand main landing gear drag strut where the wing door actuation rod attaches. 

FAA Ex. BB at l. CCIA addressed this by replacing the missing tubular bearing. See 

FAA Ex. Z at 1-3 ("bushing replacement"); see also FAA Ex. 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 of investigation concerning the missing bearing on N287SC. FAA 

Ex. AA. CCIA responded on June 8, 20 l 0, informing the FAA that Respondent had 

performed the most recent maintenance that would have involved removing the missing 

tubular bearing, consisting of the right-hand main landing gear installations. FAA Ex. BB 

at l; FAA Ex. X at 6. Removing and installing the tubular bearing is part of the process 

described in the AMM for removing and reinstalling the flying door that is accomplished as 

part of the main-landing gear installation, which Respondent performed on March 2010. See 

FAA Ex. 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 noted that Respondent was the last certifYing agency signing for the 

installation of the tubular bearing up until the aircraft experienced the high frequency 

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vibration incident on April16, 2010. FAA Ex. BB at 1. 

B. The FAA's Inspection of CCIA's Boeing 727 Aircraft 

During May 25-27, 2010, the FAA, CCIA, and Respondent gathered personnel in 

Toledo, Ohio, for an FAA inspection of a number ofCCIA's Boeing 727 aircraft. FAA 

Ex. I, at 1-2. During this inspection, FAA's Principle Maintenance Inspector for CCIA, 

Frank Lipinski and FAA's Principal Operation Inspector for CCIA, Jack Gasche, performed 

walk-around inspections on a number of CCIA's Boeing 727 aircraft, including N899AA, 

N898AA, and N287SC. 2 Inspector Lipinski observed that each of these 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 of improper 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 on the 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 had been scraping, rubbing, or binding against each other. FAA Ex. I at 1-2; FAA 

Ex. JJ at 4, ~ 13-15. Inspector Gasche also noticed that the main landing gear doors on N899AA, 

N898AA, and N287SC were out of alignment, as they showed rubbing at the hinge, and there 

2 The three aircraft were operated by CCIA in the intervening period between 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 28 201 0; (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. 

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was damage to the gear door and binding on the flap track fairing cover. FAA Ex. J. Both 

Inspector Lipinski and Inspector Gasche were able to conclude that the main landing gear doors 

were improperly rigged without performing a gear swing, based on the location and extent of the 

damage on these 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 of this 

Brief in Tables A-D. 

Inspector Lipinski also observed that the damage on these aircraft was inconsistent with 

normal wear and tear that usually consists of paint deterioration, worn or torn rubber seals, aged 

lubrication, affixed dirt, or metallic dust in the hinges. FAA Ex. JJ at 4, ~ 13, 14. Inspector 

Lipinski notified CCIA representatives 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 had performed the last main landing 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 not been conducted to ensure proper rigging. Id 

C. The Maintenance Performed to Address the Aircrafts' Noted Discrepancies 

CCIA took N899AA, N898AA, and N287SC out of service 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 on N899AA and N898AA as noted in Table A below. 

See FAA Ex. K. The three aircraft were then ferried to Respondent's facility for repairs. FAA 

Ex.B at 52. 

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Table 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 

incorrect pin length had been installed 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 cover pin 

Between May 28 and May 31,2010, Respondent performed maintenance on N899AA, 

addressing various discrepancies with the following corrective actions noted in Table B below. 

SeeFAAEx.N. 

T a bl e B N899AA D' Iscrepancies an dC orrec f IVe A C f lOllS 

Discrepancies Corrective Actions Record 

improper hardware stack up on the removed the main landing FAA Ex. N at 2-7 (nonaft and forward flying door hinges gear doors and reinstalling routine cards 0003, 

of the left and right-hand flying them, then performing 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 at the gear fitting on re-shimmed the saddle !d. at 10-11 (nonthe right-hand flying door support fitting routine card 0008). 

damage on the aft angle on the 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 on the forward replaced the hinge !d. at 15-16 (nonoutboard hinge cover for the routine card 0012 and 

right-hand flying door 0013). 

worn aft hinge cover on the replaced the hinge !d. at 17 (non-routine 

right-hand flying door card 0014). 

Worn bracket 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 of this discrepancy, to mean that the hinges were not properly shimmed 

and the main landing gear doors were out of rig. FAA Ex. B at 84-85. 

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Between May 27 and June 1, 2010, Respondent performed maintenance on N898AA, 

addressing various discrepancies with the following corrective actions noted in Table C below. 

See FAA Ex. T. Even after the maintenance listed in Table C was accomplished, Respondent 

was still unable to adjust the left-hand flying door to properly fit on the aircraft, and it had to be 

replaced entirely. FAA Ex. Tat 8-9,36-39 (non-routine cards 0003, 0031). 

T a bl e C N898AA n· Iscrepancies an dC orrec f 1ve A C f lOllS 

Discrepancies Corrective Actions Record 

right-hand flying door: cracked replaced the forward hinge, FAA Ex. Tat 1-3 (nonforward hinge, loose aft hinge, the aft hinge, and several routine card 0001 ). 

bushings worn beyond limits bushings 

attach plate for the right-hand fairing replaced attach plate for !d. at 34-35 (non-routine 

had been 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 of the hinge aft hinge routine card 0008). 

damage on the left-hand inboard flap repaired the damage Id. at 16-17 (non-routine 

track fairing adjacent to the flying card 0006). 

door's aft hinge 

gouges in the skin of the left-hand repaired the damage !d. at 20-23 (non-routine 

flying door near the mid attach cards 0015, 0017). 

bracket and near the stop bracket 

aft hinge cover on the left-hand flying replaced the hinge !d. at 24-25 (non-routine 

door had a migrating hinge pin and a card 0020). 

cracked hinge lobe 

cracked bushing in the left-hand replaced the bushing !d. at 27-28 (non-routine 

flying door fitting card 0023). 

aft internal stiffener on the 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 on N899 AA, addressing 

various discrepancies with the following corrective actions noted in Table D. See FAA Ex. CC, 

DD. 

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T a e bl D . N287SC n· ISCrepanCICS an dC orrec f 1ve A C flOllS 

Discrepancies Corrective Actions Record 

discrepant condition on the left -hand replaced an unspecified FAA Ex. DD at 1-2 

flying door number of bushings (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 

On June 8 and 9, 2010, CCIA sent Respondent two Discrepancy Notices, 

Nos. Q20288 and Q20287, which contained Corrective Action Records No. QAACVG004, 

QAA005, and QAACVG006. FAA Ex. 0, U. The Corrective Action Records were all 

categorized a "major" and they summarized the aircrafts' discrepancies. I d. The 

Discrepancy Notices 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 "discovered the RIH 

[right-hand] flying door [forward] hinge has damaged the mid section [sic] ... of the 

inboard flap fairing" and the "damage to the fairing was out oflimits." FAA Ex. 0 at 1. As 

to the cause of the discrepancy, CCIA's mechanics found that the "flying door hinge pin 

[had] migrat[][ed] out of the hinge assembly," which "was not properly installed[,] 

allowing the pin to migrate." Id. CCIA noted that Respondent had last replaced the 

right-hand main landing gear on N899AA's. Id. 

In response to Corrective Action Record No. QAACVG004, Respondent noted that 

its technician "reviewed the maintenance manual concerning the installation of the door 

and hinge pins" and found that "[a] training and procedural error occurred during the hinge 

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pin installation" as the "technician and inspector were unaware that Boeing has a Product 

Standard Process ... for ensuring the hinge pins are secure." I d.; FAA Ex. P at 1. 

Respondent also noted that to prevent future reoccurrences, it developed and put in place a 

Boeing "727 main landing gear Wing Door Training Module." FAA Ex. Pat 1-2. 

Additionally, Respondent had the "[p]ersonnel involved in the installation for [] N899AA 

... review[ ] the maintenance manual concerning the installation of the door and hinge 

pins." I d. at 2. 

In Corrective Action Record Nos. QAA005 and QAACVG006, CClA reported that 

on N898AA and N287SC respectively, its Principal Maintenance Inspector "discovered the 

RIH [right-hand] flying door hinge ha[][ d] play and damage to the fairing" and the "damage 

to the fairing was out of limits." FAA Ex. U at 1. As to the cause of the discrepancy, 

CCIA's mechanics found that the door was out of rig and that the "rigging of the door was 

not proper after the gear change" which Respondent performed during the last C-check. I d. 

In its response to these discrepancies, AMES reported that "training" and "other" were 

"contributing factors" to the cause of the discrepancy, noting that it was providing Boeing 

"727 main landing gear wing door training" and "additional training" for technicians "to 

specially look at these areas for this type of damage." Id. Additionally, Respondent created 

task cards for "Main Landing Gear -Removal/Installation" of the right and left main 

landing gear. FAA Ex. Vat 2; FAA Ex. EE at 1-2. 

E. The FAA Letters oflnvestigation and Respondent's Response 

On September 30, 2010, the FAA sent CCIA a letter of investigation explaining that 

the FAA was investigating maintenance performed on the main landing gear doors of 

N899AA, N898AA, and N287SC, as all three aircraft had landing gear doors that were 

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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, explaining that it had completed its own investigation of the 

misrigged flying doors, attaching the two Discrepancy Notices containing the three 

Corrective Action Records. FAA Ex. Hat 1-3. CCIA concluded, after its investigation, that 

Respondent "did not follow" the "FAA approved manual[] of Instructions for Continued 

Airworthiness" which requires use of the "Boeing [ ]727 Aircraft Maintenance Manual 

(AMM)." Id. at 2. CCIA explained that Respondent had reacted to this fmding "with a 

modified training program." I d. 

On March 3, 2011, the FAA sent Respondent a letter of investigation informing 

Respondent that the FAA was investigating the improperly installed and misrigged main 

landing gear doors on N899AA, N898AA, and N287SC. FAA Ex. GG. The letter indicated 

that Respondent performed the latest main landing gear door installations, and that these 

were not accomplished in accordance with the AMM or CCIA's maintenance program. I d. 

at 1-2. On March 21, 2011, Respondent sent a letter in response indicating that it had 

"undertaken a very detailed investigation to review all aspects of the issue." FAA Ex. HH 

at 1. Respondent's letter corrected the FAA's noted dates that Respondent released the three 

aircraft, and it asserted that it was not responsible for the misrouting of the anti-skid conduit 

on N287SC. Id. at 1. As to the remainder of the FAA's assertions in the letter of 

investigation, however, including the FAA and CCIA's findings that Respondent had 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 of the investigation and results have been sent 

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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 

prevent the reoccurrence .... 

Id. at 1. 

The Discrepancy Notices containing these Corrective Action Records were signed by 

CCIA and AMES, and they concluded that the main landing gear doors had not been 

properly installed by Respondent. FAA Ex. 0, P, U, V, EE. 

ADMINISTRATIVE LAW JUDGE'S DECISION 

On May 5, 2015, the ALJ issued an Initial Decision which adopted by reference tbe 

April 1, 2015 Order grating in part summary judgment for the FAA, based on tbe ALJ' s 

holding that Respondent committed nine total violations of Sections 4 3 .13( a), 4 3 .13(b ), and 

145.205(a) oftbe FAR when it performed maintenance 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 

summary judgment in part, the ALJ made preliminary evidentiary rulings. April!, 2015 

Order at 4-13. 

I. The ALJ's Evidentiary Rulings 

The ALJ admitted and considered all but Exhibit A of the FAA's exhibits submitted 

on the motion for summary judgment. I d. at 4-5. As for Respondent's exhibits, the ALJ 

excluded the Expert Report of Daniel J. Hancher, and she restricted the use of Jeffrey 

Becker's Declaration and Deposition. 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) of the 

Federal Rules of Evidence requires that the facts or data reviewed by an expert must be 

12 
sufficient to render his testimony reliable, but Respondent only provided Mr. Hancher with 

two sets of Respondent's maintenance records and the FAA-compiled Statement of the 

Case, which the ALI concluded rendered Mr. Hancher's expert opinion testimony "too 

limited in nature." !d. at 27-28. The ALI accepted Mr. Becker's Declaration to demonstrate 

Mr. Becker's qualifications, but not as additional testimonial evidence on the merits in 

opposition to the FAA's Motion for Summary Judgment because it was only offered as a 

supplemental submission for the limited purpose of addressing the reserved admissibility 

objections to the proffered evidence. !d. at 6. 

Respondent offered Mr. Becker's Deposition as expert testimony, but the ALJ only 

admitted the deposition as specialized lay opinion testimony under the limited exception of 

Fed. R. Evid. 701. !d. at 7-13. The ALI noted 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 with the discovery deadlines and 

requirements in the ALI's discovery order, as permitted under 14 C.F.R. § 13.217(±) and Rule 

37 of the Federal Rules of Civil Procedure. !d.; See 14 C.F.R. § 13.217([); Fed. R. ofCiv. Proc. 

37. The four factor test for the exclusion of evidence weighed in favor of prohibiting Mr. 

Becker's testimony as expert testimony. 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 objected to the presentation of expert testimony by Mr. Becker on multiple 

grounds, including: a) Mr. Becker had not been timely identified as an expert; b) Mr. 

Becker's testimony was proffered for the limited purpose of rebutting FAA expert Inspector 

Christensen, who was excluded as a witness; c) Respondent produced Mr. Becker for the 

FAA discovery deposition as a company representative, not as an expert witness; and d) Mr. 

Becker's testimony was not reliable as expert testimony because it was based on speculative 

hearsay, implausible suppositions, unverifiable maintenance record entries, ignored the facts 

in the record, and was inconsistent with his own deposed testimonial statements and his 

prior admissions to the FAA. !d. 

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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 of general industry standards or 

methods, to demonstrate that he had 'reliably applied the principles and 

methods' of expert knowledge and analysis to the facts of the case. 

Id. at 11-12 (citing Fed. R. Evid. 702(c), (d)). 

II. The ALJ's Analysis And Conclusions 

The ALJ addressed the regulatory language in the three alleged violations of the 

FARs, noting that 14 C.P.R.§ 125.205(a) mirrored and included the 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") in performing 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 

ALJ reviewed each party's evidence and concluded that there was no genuine dispute of material 

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 of investigation; d) Respondent's March 21, 2011 response 

to the FAA letter of investigation; and e) excerpts from Becker's Deposition. Id. at 16-21. 

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The ALJ concluded that this evidence comprised ofF AA expert opinion, Respondent's 

admissions, and maintenance records, established that "the damage discovered on each 

aircraft during the May 2010 inspection" was caused by Respondent's "improper installation 

and rigging of the flying doors," and that Respondent had admitted that it had "failed to 

follow CCIA's program and applicable sections of the AMM in performing the main landing 

gear maintenance." ld. at 21-22. The ALJ found that "the FAA met its initial burden of 

proof'' under the summary judgment standard in Rule 56 of the Federal Rules of Evidence. Id. 

at 21-22. 

The ALJ then considered Respondent's evidence in opposition to the FAA's motion 

for summary judgment to determine if Respondent had set forth specific facts sufficient to 

raise a genuine dispute of material fact. Id. at 22-28. The ALJ explained that Respondent's 

proffered evidence consisted, in large part, of excerpts from Mr. Becker's Deposition, which 

was only admitted as specialized lay opinion testimony, and the Expert Report of Mr. 

Hancher, which was excluded as unreliable and inadmissible. I d. at 22-28. The ALJ 

thoroughly discussed Mr. Becker's deposition testimony, and found serious issues 

undermining the reliability of the testimony. Id. at 22-27. The ALJ noted that Mr. Becker 

testified that he did not have any personal recollection of what discrepancies, if any, had 

been found on each aircraft, and that prior to his employment with Respondent, he had no 

experience working with Boeing 727s. I d. at 20, 22-23. Additionally, the ALJ pointed to 

Mr. Becker's explanation that when early in the investigation he had spoken to 

Respondent's aircraft technicians and inspectors who had performed the main landing gear 

installations, they had no independent memory of what main landing gear installation work 

they performed on the aircraft. Id. The ALJ also considered that Mr. Becker testified that 

15 
he did not recall the specific results of Respondent's own internal investigation after the 

FAA's May 2010 inspection. Id. at 20. 

As a result, the ALJ concluded that it was unfounded when Mr. Becker "generally 

speculated" that the main landing gear damage was the result of either normal wear and tear 

or an intervening tire change, rather than improper installation and rigging of the flying 

doors. I d. at 21-24. The ALJ noted that although Mr. Becker testified that the discrepancies 

were just "wear and tear," when he was asked to specifically look at maintenance repair 

records during the deposition, he was unable to justifY his opinion. I d. at 24. For example, 

when Mr. Becker was asked about what Respondent's maintenance records meant by 

"[hinge pins] improperly installed," he testified that he had "no comment." Resp't Opp. Ex. 

1 at 101. When asked if a damaged left-hand inboard flap fairing on the wing door needed 

to be repaired in accordance with Boeing's AMM, Mr. Becker replied, "Yeah. I mean, no. 

I'm thinking. I don't- yeah. No, I don't know." I d. at I 02. As to Respondent's claim 

regarding the intervening tire change on N287SC, the ALJ noted that 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 missing tubular 

bearing. April!, 2015 Order at 23. The ALJ also found that Respondent's March 21, 2011 

letter in response to FAA's letter of investigation did not note what, if any, additional 

independent investigation Respondent had performed apart from CCIA, nor did it note any 

disagreement with CCIA's investigation fmdings. I d. 

The ALJ emphasized that a problematic part of Mr. Becker's testimony was his 

inconsistent statement that neither he nor Respondent had "stated or agreed that the doors 

were misrigged to begin with." Id. at 24 (quoting Resp't Opp. Ex. 1 at 86). The ALJ found 

16 
that this testimony was "inconsistent" with Respondent's June 10, 2010 revised training 

program, which acknowledged that misrigging was suspected. ld. The ALJ noted that the 

testimony was also inconsistent with Mr. Becker's March 21, 2011letter, written on behalf 

of the Respondent, in which he adopted CCIA' s October 25, 2010 letter that concluded 

Respondent had misrigged the main landing gear on each of the 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 

noted that "there is no proof in the evidentiary record to show how (if at all) Mr. Becker or 

any other Respondent representative 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 of the 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 of knowledge (e.g., I don't know), speculation 

(e.g., it must be wear and tear because of the passage of time), general accusations 

of blame (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 of Mr. Becker's testimony was discredited by his own prior statements to 

the FAA, codified in his March 21, 2011 Letter. On behalf of the 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. 

I d. at 28-29. 

The ALJ held that Respondent failed to create a genuine dispute as to any of the 

material facts established by the FAA, and granted the FAA summary disposition on the 

nine alleged violations as a matter of law. !d. As to the sanction, the ALJ' Initial Decision 

17 
assessed a civil penalty of$61,875 (i.e. $20,625 per aircraft) for the nine violations, 

adopting by reference the April10, 2015 Order accepting Respondent's stipulation to the 

civil penalty amount, noting that "a litigant may choose to 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 of Proof Was 

Made in Accordance With Applicable Law, Precedent, and Public Policy, and 

Supported by a Preponderance of Reliable, Probative, and Substantial Evidence? 

II. Whether The ALJ's Evidentiary Rulings Regarding Respondent's Evidence Were 

an Abuse of Discretion? 

III. Whether The ALJ's Conclusion that Respondent Failed to Establish a Genuine 

Dispute over an Issue of Material 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 of fact are supported by a preponderance of reliable, probative, and substantial 

evidence, and whether the ALJ's conclusions are in accordance with law, precedent, and policy. 

14 C.F.R. § 13.233(b)(l),(2). Evidentiary rulings are reviewed under the highly deferential 

abuse of discretion 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 Order No. 94-21, 1994 WL 899673, at* 1 (June 21, 1994) (citing Cella v. United States, 

998 F .2d 418, 422-23 (7th Cir. 1993) (quoting Salem v. United States Lines Co., 370 U.S. 31, 35 

(1962))). 

18 
I. The ALJ's Conclusion That The FAA Met Its Initial Burden of Proof Was Made in 

Accordance With Applicable Law, Precedent, and Public Policy, and Supported By 

a Preponderance of Reliable, Probative, and Substantial Evidence. 

Respondent argues the ALJ disregarded applicable precedent and public policy when 

reviewing the FAA's evidence and concluding that agency met its initial burden of proof. 

See Br. at 29-37. The Federal Aviation Regulations permit a party to file a motion for a decision 

on the merits in advance of a 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 

summary judgment under Rule 56 of the Fed. R. Civ. Procedure. Horizon Air Industries, Inc., 

FAA Order No. 96-24, 1996 WL 509933, at *3, n. 3 (August 12, 1996); see Anderson v. Liberty 

Lobby Inc., 477 U.S. 242, 247-48 (1986) (explaining that summary judgment may be granted 

where there is no genuine dispute as to any material fact and the movant is entitled to judgment 

as a matter of law). The party making the motion for summary judgrnent has the initial burden 

of showing that there is no genuine issue of material 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 of affecting the 

substantial outcome ofthe litigation," and a dispute is "genuine" when "the evidence is such that 

a reasonable trier of fact 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 of which 

is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should 

not adopt that version of the facts for purposes of ruling on a motion for summary judgment." 

Scott v. Harris, 550 U.S. 372, 380 (2007). 

19 
A. The ALJ's Finding That the FAA Met Its Initial Burden of Proof Is 

Supported by a Preponderance of Reliable, Probative, and Substantial 

Evidence and Accords With Law Applicable to The Complainant's Burden 

of Proof. 

Respondent argues that the ALJ' s decision to grant the FAA sunnnary judgment was 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 and In 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 of both Lewis 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 FAA to meet its burden of proof. !d. at 32. 

Lewis simply requires the ALJ to "insure that the quality of the evidence presented by the 

Administrator is sufficient to establish the reasonable inference that the deficient condition ... 

resulted from []the respondent's earlier repair." Lewis, 1978 WL 19059, at *5. Florida 

Propeller more narrowly holds that where the effect of the passage of time is at issue, as in cases 

where the return to service of life-limited parts is in dispute, expert testimony may be required. 

Florida Propeller, 1997 WL 685987, at *3-5; See also In the Matter of Empire Airlines, Inc. 

Empire Airlines, Inc., CP98NM0011, 2000 WL 869981, at *5 (June 8, 2000) (describing Florida 

Propeller). Both Lewis and Florida Propeller acknowledge that "in cases involving allegations 

of improper repair or inspection," it "is not at all unusual" for the "[ c ]omplainant [] [to] use 

circumstantial evidence to sustain its burden of proof." Florida Propeller, 1997 WL 685987, at 

*3; See Lewis, 1978 WL 19059, at *4 (explaining that "in cases where an improper repair or 

inspection is not discovered until some point in time after the act or omission which constitutes 

6 NTSB case law is instructive and not binding precedent for the Decisionmaker. 

20 
the regulatory violation, the evidence presented by the Administrator must of necessity 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, in Lewis the Board noted that there was substantial missing evidence with respect to the 

history of the aircraft during the 14-month period between the maintenance and the FAA's 

discovery of the violation. Lewis, 1978 WL 19059, at *4. Notably, in Lewis, the aircraft owners 

were not interviewed regarding intervening maintenance on the aircraft during the 14 month gap, 

the mechanic who reported the deficiencies was not called as a witness, it was not clear what 

maintenance the mechanic performed on the aircraft, the aircraft logbook was not introduced 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 of investigation, Mr. Becker's deposition and declaration, 

aircraft maintenance records, aircraft discrepancy notices, and Corrective Action Records. 

See FAA Ex. 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 on N899AA, N898AA, and 

N287SC; b) the noted discrepancies that were identified on each aircraft; c) the lack of relevant 

21 
intervening maintenance that could have accounted for the aircraft's discrepancies; d) the results 

ofCCIA's investigation and Respondent's independent investigation of the discrepancies; e) the 

corrective actions Respondent took 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 

observed many of the noted discrepancies on the three aircraft-in the form oflnspector 

Lipinski's Declaration and his Inspector Statement from the May 2010 FAA inspection, along 

with Inspector Gasche's Inspector Statement from 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, in the form of AMM 32-11-00, AMM 

32-12-11, AMM 32-45-01, andAMM 32-12-00. See FAA Ex. C, D, LL, MM. The ALJ 

carefully reviewed this evidence and concluded that "the FAA met its initial burden of proof," 

establishing that "the damage discovered on each aircraft during the May 2010 inspection" 

was caused by Respondent's "improper installation and rigging of the flying doors," and 

that Respondent had admitted that it had "failed to follow CCIA's program and applicable 

sections of the AMM in performing the main landing gear maintenance." April!, 2015 

Order at 21-22. 

2. While Florida Propeller Is Not Directly Applicable, The FAA 

Nonetheless Introduced Expert Testimony. 

Respondent's claim that the precedent in Florida Propeller applies but that the ALJ 

disregarded it is not supported by the record. Florida Propeller is not applicable because this 

case does not involve a dispute over the effect of the passage of time on life-limited parts after 

their return to service. Nevertheless, the FAA introduced expert testimony establishing that the 

22 
aircraft discrepancies were not normal wear and tear and that the missing tubular bearing on 

N287SC could not have been caused by an intervening tire change. 

FAA expert Inspector Lipinski carefully observed the damage on the three aircraft. 

While he observed that the aircraft had very minor general wear and tear, he explained that the 

discrepancies relevant to the main landing gear installations were not consistent with normal 

wear and tear (e.g. normal wear and tear might consist of paint deterioration, worn or tom rubber 

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, or binding 

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 on the aircraft were out of alignment, as they showed rubbing at the hinge, 

and there was damage to the gear door and binding on the 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 between them, and components like the 

hinges are not put into 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 that had been flying much longer since their more recent C-checks, did 

not reveal the sort of damage observed on N899AA, N898AA, and N287SC. FAA Ex. JJ at 4, 

~ 14. 

Additionally, Inspector Lipinski noted that some of the aircraft's discrepancies were 

improper hardware configuration that failed to comply with the Boeing AMM, which bore no 

relation to wear and tear. FAA. Ex. I at 1-2. He noted that the shims on the three aircraft were 

23 
not arranged in the order specified in AMM 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 with the requirements in AMM 32-12-11 and AMM 32-11-00. See FAA Ex. D (AMM 

32-12-11, at p. 403-405, Fig. 401 (Sheet 1-3); p. 502 Fig. 501 ); FAA Ex. 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 secured the hinge covers, including the hinge pins, resulting in 

noncompliance with the requirements in the AMM 32-11-00. FAA Ex. JJ at 8, '1[ 41; see FAA 

Ex. C (AMM 32-11-00, at p. 422-23 '1[ AL(ll ), (18)). 

Inspector Lipinski's testimony also established that the missing tubular bearing on 

N287SC could not have been caused by an intervening tire change that was performed in 

accordance with the Boeing AMM 32-45-01, which specifically instructs mechanics not to 

remove the actuation rod attachment bolt that holds the tubular bearing in place while 

performing tire changes. FAA Ex. KK at 124; FAA Ex. LL (AMM 32-45-01 ); FAA Ex. C 

(AMM 32-11-00, at p. 404-405 Figs. 401 and 402). As Inspector Lipinski explained, when 

mechanics perform a tire change on a Boeing 727, they simply remove two bolts on the 

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 on the tubular bearing." FAA Ex. JJ at '1[ 36. 

24 
Addressing Mr. Becker's speculation that a mechanic could have performed a tire change 

on N287SC without following the AMM by removing the actuation rod from the flying door, as 

a "shortcut," Inspector Lipinski explained that this "would have made [][the mechanic's]life 

much more difficult," and that he had "never seen or heard of a mechanic changing a Boeing 

[ ]727 wheel in that 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 with the tubular bearing. See FAA Ex. C (AMM 32-11-00, at p. 402 '\[3.F(3); p. 404 Fig. 

401; p. 422 '\[ AL(ll) (requiring mechanics to "remove actuation rod from airplane")); FAA Ex. 

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 of fact in the face ofinspector Lipinski'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 of Respondent's Response to the FAA's Letter of 

Investigation Was Proper. 

Respondent argues that the ALJ erred by concluding that its response to the FAA's letter 

of investigation 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 of investigation was 

written by Mr. Becker, who was Respondent's authorized representative when he authored 

the letter. FAA Ex. HH. The response letter indicated that Respondent had "undertaken a 

very detailed investigation to review all aspects of the issue," and that the investigation 

results had been provided to CCIA, with which it had "worked very closely ... to put a 

corrective action plan together that would prevent ... reoccurrence." !d. at 1. The letter 

noted that the FAA was provided with CCIA's October 25,2010 letter with "details of the 

25 
investigation and results," and with the Corrective Action Records containing the "results of 

our review and actions," which indicated that Respondent had misrigged the main landing 

gear doors on N899AA, N898AA, and N287SC, because of its failure to follow the Boeing 

AMM. Id. (referring to FAA Ex. 0, P, U, V, EE). Respondent's letter did not contain any 

indication that Respondent's investigation findings differed from CCIA's findings, in 

contrast with Respondent's explicit disagreement with the FAA's noted aircraft release 

dates, and Respondent's denial of any responsibility for the misrouting of the anti-skid 

conduit on N287SC. Id. at 1-2. As the ALJ noted, "there is no proof in the evidentiary 

record to show how (if at all) Mr. Becker or any other representative of Respondent had 

limited, corrected, or disavowed the assertions in the March 21, 2011 [!Jetter." April 1, 

2015 Order at 26. 

Respondent also claims that the ALI's consideration of its response to the FAA's letter of 

investigation is "bad public policy," because it will have a chilling effect on the enforcement 

resolution process. Br. at 33-34. To the contrary, the letter of investigation provides the party 

with notice of the investigation and provides an "opportunity for the apparent violator to tell his 

or her side of the story." FAA Order 2150.3B, at 4-10 ~9.a(1). "Learning the other side of the 

story early in the investigation is to everyone's advantage." Id. Mr. Becker made the admission 

freely in the March 21, 2011letter on behalf of Respondent and there is nothing in the record 

that casts any suspicion on the reliability of the admission. See FAA Ex. HH at 1. As noted by 

the ALJ, it is well established that a statement of a party opponent may be offered against that 

party in a civil action. April!, 2015 Order at 24-27 (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 of facts asserted. 2 McCormick on Evidence§ 259 (7th ed.). 

26 
Respondent admits that letters of investigation and the response letters provide for "the forthright 

airing of positions and reactions to possible violations." Br. at 33. Accordingly, use of 

Respondent's admission contained in the responses to the FAA's letter of investigation is 

consistent with the public interest in fairly adjudicating this case. 

II. The ALJ's Evidentiary Rulings Regarding Respondent's Evidence Were Not an 

Abuse of Discretion. 

The ALJ excluded Mr. Hancher's Expert Report, restricted the use of Mr. Becker's 

Declaration solely to establish his qualifications, and ruled that Mr. Becker's Deposition 

was only admissible as lay opinion testimony. Aprill, 2015 Order at 6, 7-13, 27-28. The 

ALJ thoroughly explained these ruling and Respondent only challenges the ALJ's exclusion 

of Mr. Hancher's Expert Report. Br. at 37-41. 

Evidence offered to support or oppose a motion for summary judgment must be capable 

of being 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 of the Federal Rules of Evidence requires an expert witness' testimony to be "based on 

sufficient facts or data." Fed. R. ofEvid. 702(b). An ALJ may receive relevant and material 

evidence, and exclude evidence that is irrelevant, immaterial, or unduly repetitious. 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 on the ALJ's 

finding that Mr. Hancher was "given only limited information to review when preparing his 

report." I d. at 27. Respondent admits that it only provided Mr. Hancher with Respondent's 

maintenance records, and the FAA-compiled Statement of the 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, at the time that he wrote his report: 1) Respondent's March 21, 20llletter 

containing Respondent's investigation findings; 2) Respondent's June 10,2010 Revised 

Boeing 727 Main Landing Gear Door Installation Training Program; 3) CCIA's October 25, 

2010 letter with its investigation results, 4) CCIA' s June 2010 Corrective Action Records 

containing the results of CCIA and Respondent's review of the discrepancies and 

Respondent's corrective actions; and 5) Inspector Lipinski's and Inspector Gasche's 

May 25-27, 2010 Inspector Statements from the FAA Inspection ofCCIA's Boeing 727 

aircraft. These records constitute a significant portion of the evidence relevant to the 

disposition of this case, but Respondent chose not to provide this evidence to its retained 

expert. Notably, Respondent's own motion for sununary judgment did not attach or address Mr. 

Hancher's report. See generally Resp't. Mot. for SJ. 

Additionally, Respondent's argument that the ALJ should have allowed the case to 

go to hearing so that Mr. Hancher could take the stand and correct deficiencies in his report 

is misplaced. Br. at 39. From the outset, an expert's written report is required to contain 

"the basis and reasons" for his expert opinions, and "the facts or data considered" in forming 

his opinion. Fed. Rule Civ. Proc. 26(a)(2)(E). If Respondent felt that Mr. Hancher's report 

required additional explanation, it could have requested permission to supplement or correct 

its submission. Additionally, Mr. Hancher could have supplemented his Expert Report after 

Mr. Becker and Inspector Lipinski's depositions were taken, but Respondent did not provide 

28 
these transcripts to Mr. Hancher. Accordingly, the ALJ's well-explained exclusion of Mr. 

Hancher's expert report was not an abuse of discretion. April 1, 2015 Order at 27-28. 

III. The ALJ's Conclusion that Respondent Failed to Establish a Genuine Dispute over 

an Issue of Material Fact Was Supported by a Preponderance of Reliable, 

Probative, and Substantial Evidence in The Record. 

Respondent contends that it proffered sufficient opposition evidence for the ALI to find 

that it had raised a genuine dispute as to the cause of the aircraft's noted discrepancies, but that 

the ALI erred by weighing the evidence in the record in favor of the FAA. Br. at 15-28, 37-41. 

On a motion for summary judgment, "once the moving party has established a prima facie case, 

the burden shifts to the non-moving party." Steven Baicker-McKee, et.al, Federal Civil Rules 

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 

in the pleadings. Liberty Lobby, 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" of the evidence presented must 

"allow a rational finder of fact," return a verdict for the nonmoving party. Liberty Lobby, Inc., 

477 U.S. at 254. A "genuine" dispute is not created by a "mere scintilla" of favorable 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 of fact 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 "weigh the evidence and determine the truth of the matter," his 

"inquiry ... unavoidably asks whether reasonable jurors could fmd by a preponderance of the 

29 
evidence that the plaintiff is entitled to a verdict." Liberty Lobby, Inc., 477 U.S. at 249, 252. 

Respondent's various arguments conflate the ALI's evidentiary findings and consideration of the 

record as a whole with improper exclusion and weighing of the 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 

of Reliable, 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 in the right-hand flying door 

assembly. FAA Ex. W, X, Y, Z, CC, DD. Respondent claims that an intervening tire change 

that occurred three days after Respondent installed the main landing gear was the cause of 

this missing tubular bearing. Br. at 22-25. The only record evidence that Respondent relies 

on to support this 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 of the period when the maintenance violations were discovered. See FAA Ex. 

B. The ALJ noted that Mr. Becker did not have any personal recollection of what 

discrepancies were found on each aircraft or what the specific results of Respondent's own 

internal investigation were. April!, 2015 Order at 22-23. Mr. Becker testified that early in 

the investigation when he had spoken with Respondent's aircraft technicians and inspectors, 

they had no independent memory of what main landing gear installation work they 

performed. FAA Ex. B at 41; FAA Ex. KK at 40-41. 

30 
The ALJ found that Mr. Becker "generally speculated" when he testified that an 

intervening tire change, not improper maintenance, was the cause of the missing tubular 

bearing in N287SC. Aprill, 2015 Order at 21-24. Mr. Becker's opinion was not based on 

his personal koowledge or any facts in the record, but rather on a "possibility" that the 

tubular bearing "could have" fallen out during an intervening tire change, if mechanics had 

not performed the tire change in accordance with the Boeing AMMs. FAA Ex. KK at 4 7, 

124. CCIA's Continuous Airworthiness Maintenance Program requires mechanics to comply 

with the Boeing 727 AMM, which instructs mechanics performing a tire change not to 

remove the actuation rod attachment bolt that holds the tubular bearing in place. See FAA 

Ex. KK at 124; FAA Ex. LL (AMM 32-45-01); FAA Ex. C (AMM 32-11-00, atp. 404 Fig. 

401). Respondent provided no factual basis for alleging that CCIA's mechanics were 

performing tire changes in violation of the Boeing AMMs, or that any such improper tire 

change was performed on N287SC. 

There is similarly no basis to Mr. Becker's testimony that CCIA failed to consider 

Respondent's own investigation of the 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, if any, additional independent 

investigation the Respondent had performed beyond the initial investigation ... with CCIA, 

or what the results of that investigation might have been." I d. at 23. Given the purely 

speculative nature of Mr. Becker's testimony, the ALJ did not err in finding it insufficient 

to raise a genuine dispute as to any material fact. 

31 
B. 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 of Reliable, Probative, and Substantial 

Evidence. 

Respondent claims that the ALJ "dismissed" its gear swing evidence and wear and tear 

evidence, consisting solely of Mr. Becker's lay deposition testimony. Br. at 15-22. The ALJ 

considered Mr. Becker's testimony regarding the significance of conducting a gear swing and 

found that it was unsupported by the factual evidence in the record. April!, 2015 Order at 23. 

Mr. Becker testified that he did not "know how 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. The ALJ noted 

that Mr. Becker's lay opinion testimony might have just been "describing his 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 Section LA 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 owu attorney even objected to Mr. 

Becker answering questions regarding mechanical expertise, noting, "I don't know that your 

understanding of what a mechanic would do is relevant, but if you 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 and tear" requiring only "blend and treat," which he equated with "prepping 

a surface and putting paint 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 by Respondent. FAA Ex. 0, U. Some 

32 
of the discrepancies consisted of improper 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 on the main landing gear doors was not consistent with wear and tear. 

Moreover, the ALI noted that when Mr. Becker was asked to look at the maintenance 

repair records during the deposition, was unable to justifY his opinion. April!, 2015 Order 

at 24. For example, when Mr. Becker was asked what Respondent's maintenance records 

meant by "[hinge pins] improperly installed," he testified he had "no comment." Resp't 

Opp., Ex. I at I 0 I. He admitted that he understood an improper hardware stack up, in the 

context of this noted discrepancy, to mean that the hinges were not properly shimmed and the 

main landing gear doors were out of rig, which bears no relation to wear and tear. FAA Ex. B at 

84-85. Notably, Mr. Becker was not even aware that the main landing gear maintenance had 

to be repaired in accordance with Boeing's AMM, 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 

unfounded when Mr. Becker "generally speculated" that the aircraft discrepancies were the 

result of normal wear and tear. 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) of the Federal Aviation Regulations. 

33 
Respectfully submitted, 

Peter J. Lynch 

Assistant Chief Counsel 

for Enforcement 

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

.·A ~-.&JJ .'~""~;!At i/ JiY•o • L-"""' " ~ 

JessiJ Kabaz-Gomez 

Attorney, AGC-300 

Federal Aviation Administration 

Office of the Chief Counsel 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Telephone: (202) 267-7395 

Facsimile: (202) 267-5106 

Dated: July 29,2015 

34 
CERTIFICATE OF SERVICE 

I certify that on this date I sent by certified mail, return-receipt requested a copy of the foregoing 

Reply Brief In the Matter of Airborne Maintenance and Engineering Services, Docket No. FAA2013-0291, FAA Case No. 2011S0290032, to: 

Robert P. 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 )fright Buildin -Suite 2Wl000 

Wasljng'ton, D.C. 205 ~ 

(Att¢n,tlo~~g 1ket Clerk, AGC-430) 

35