... 

u.s. DEPARTMENT OF TRANSPORTATIJiU?(")ElVED 

Office of Hearings AUG 1 2 2013 

Washington, D. C. 

HEAR1NG DOCKET 

The Liberty Foundation, Inc. 

FAA DOCKET NO. 2012-0477 

(EIR 2011-GL-03-0070) 

(Civil Penalty Action) 

Hon. J. E. Sullivan, Administrative Law Judge 

RESPONDENT'S REPLY TO COMPLAINANT'S RESPONSE 

IN OPPOSITION TO MOTION TO COMPEL 

!······ 

2,:., •• ! 

~· .. ~. 

'"' .... 

Respondent herewith briefly replies to Complainant's Response In Opposition To 

Respondent's Motion To Compel. 

Complainant concedes in its Response that it agreed to the deposition of its 

expert witness, Timothy Bourgoine, after the discovery deadline in the Court's most 

recent scheduling order. When counsel were discussing the out-of-time depositions of 

two of Respondent's witnesses as well as of Mr. Bourgoine, neither ever hinted or 

suggested follow-up discovery would be opposed. Opposition in these circumstances is 

"gotcha" practice and should not be permitted especially where, as here, there is no 

prejudice whatsoever to Complainant. Complainant does not even suggest it would be 

prejudiced by responding to the follow-up discovery. 

Complainant states in its Response the follow-up discovery is moot because it 

"did not pertain to the witness who was deposed on June 18, 2013. Instead, they 

pertain explicitly to the testimony of Don Dodge, who was deposed by Respondent on 

STUART A. GOLDSTEIN, P. A. 

9350 SOUTH DIXIE HIGHWAY, 10TH FLOOR, MIAMI', Fl 33156 

T: (305) 670-1222 F: (305) 670-7065 EMAIL:STUABTGOLDSTEINPA@ATT NET 
2 

May 1, 2013." This assertion is false. The fact is Mr. 8ourgoine (deposed on June 

18th) disagreed on a significant issue with Complainant's other purported expert, Don 

Dodge. Hence the follow-up discovery and its relevance. Mr. Dodge testified quite 

positively there is no type certificate data sheet for the 8-17 aircraft. At page 22 of the 

transcript of his deposition, Mr. Dodge stated twice the 8-17 does not have a type 

certificate data sheet (at lines 3-4 and 21 ). Mr. Dodge was then shown Deposition 

Exhibit 13 and asked if that was the type certificate data sheet. His answer: "No. It is a 

specification." See, Composite Exhibit A (Dodge deposition pages 22-23 Deposition 

Exhibit 13) attached hereto and made a part hereof. 

In sharp contrast to Mr. Dodge's testimony, Mr. 8ourgoine stated in his deposition 

at page 55 that he has seen the type certificate data sheet for the 8-17. He was then 

shown Deposition Exhibit 13 and agreed it is the type certificate data sheet for the 8-17. 

See, Exhibit 8 (8ourgoine deposition pages 55-57) attached hereto and made apart 

hereof. 

Given the spirit of the Court's scheduling order to permit follow-up discovery to 

expert depositions and the total lack of prejudice, or even suggested prejudice, to 

Complainant by the granting of Respondent's Motion To Compel, Respondent 

respectfully requests its Motion To Compel be granted. 

Respectfully submitted 

STUART A. GOLDSTEIN, P. A. 

9350 South Dixie Highway, 1Oth Floor 

Miami, FL 33156 

Tel: (305) 670-1222 

Fax: (305) 670-7065 

:~1:td'd:et;t:t Stuart A. Goldstein 

STUART A. GOLDSTEIN, P. A. 

9350 SOUTH DIXIE HIGHWAY, 10TH FLOOR, MIAMI, FL 33156 

T: (305) 670·1222 F: (305) 670·7065 EMAIL:STUARTGOLDSTEINPA@ATT NET 
3 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that the foregoing has been served on this 3rd day of 

August, 2013, as set forth below: 

An original and one copy to: 

Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

800 Independence Avenue, S. W. 

Wilbur Wright Building, Suite 2W1 000 

Washington, D. C. 20591 

One copy to: 

Christopher R. Stevenson, Esq. 

Office of the Regional Counsel 

Federal Aviation Administration 

P. 0. Box 20636 

Atlanta, GA 30320 

By Facsimile (404) 305-5223 

and regular U. S. Mail 

and one copy was served was served upon the Court by serving: 

Honorable J. E. Sullivan 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S. E. {E11-310) 

Washington, D. C. 20590 

By Facsimile: (202) 366-7536 

and regular U.S. Mail 

By: ~a .. JkMF- tuart A. Goldstein 

STUART A. GOLDSTEIN, P. A 

9350 SOUTH DIXIE HIGHWAY, 10TH FLOOR, MIAMI, FL 33156 

T: (305) 670-1222 F: (305) 670-7065 EMAIL:STUARTGOLDSTEINPA@ATT.NET 
Don Dodge In Re: Liberty Foundation May I, 2013 

1 Q. You are not referring to the type 

2 certificate data sheet? 

3 A. It doesn't have a type certificate data 

4 sheet. 

5 Q. Are you sure? 

6 A. I don't believe so. 

7 Q. And you have seen the type design? 

8 A. Yes. 

9 Q. Do you have a copy of it in your file? 

10 A. No. We have a copy of the pilot's ground 

11 familiarization manual that was provided by the 

12 operator. 

13 Q. So where did you see the type design? 

14 A. I had to do my research on the Internet. 

15 Q. So you saw it on the Internet. 

16 A. Yes. 

17 Q. You didn't print a copy of it out? 

18 A. No, I did not. 

19 Q. Have you seen the type certificate data 

20 sheet? 

21 A. There is no type certificate data sheet. 

22 This is a limited military aircraft. I would be very 

23 surprised if there was one. 

24 (Exhibit 13 was marked for 

25 identification.) 

( ,,~ ·,:!{ 

-...;,.)~;)·. 

REGENCY-BRENTANO, INC. 

A Page 22 
• EXHIBIT 

I J3 WJl ~~/t//3 (KG 

ROp!LSI Boeinq (Army) B-17P, B-17G (Appro•e4 12/2/Q6) 

SP!CIPICATIOI RURBIR: L-1-J 

(Holder of Liaite4 Type certificate: 

transcontinental an4 leatern Air, Inc., vaabinqton, D.C.) 

lnqinea 

Pial 

!nqine lt..ita 

Airapeed Uaita 

Raaimu• ••iqht e.G. range 

DatuM 

KAC 

Other operatinq limitations: 

Certification baaia 

Production basis 

Baport eliqlbility 

• lriqbt Cyclones 11820·97 

100 minimo• octane (CPI) a•iation qrade gasoline Raa~u.. e1cept tate-off (lo• blo•er plus turbo), 

39.5 in. Bq., 2300 rp,. (1000 bp) (sea lnel to 

25,000 ft.) 

Take-off (fi•e minutea), 55 in. Rq., 2500 rpm 

(1200 bp) 

1. Hamilton standard 23150 hub, 6153A-18 bladea 

(for interchanqeable blades aee Aircraft Propeller 

specification lo. 603, lOti 6). and GoYernor 

Ult, or 2. Hamilton standard 23150 hmb, 6~77A-O blades 

(for lntercbangeable blades aee Aircraft Propeller 

Specification lo. 603, lOTI 6), and GoYernor ~Ga. 

LeYel flight or climb - 225 mph true Ind. 

Glide or diYe - 27a ,.ph true Ind. 

Raat.u• flap speed: with power ott - Ia& mph True Ind. 

with power on - 106 mph true Ind. 

59,000 lbs. (See lOTI 6) 

20 percent KAC to 32 percent RAC 

Leading edqe vinq at root chord (196.16 in. from nose section) 

177.5 in. L.l. HAC (+30.3) 

Army T.O. Mo. AI01-201P-1 (Rodel B-17P); 

AI01-201G•1 (Hodel B·11G) (See lOTI 2) 

Limited Type Certificate lo. 1 (CAB 9 effect!•• 11/21/~6) 

lone may be produced under this approYal lot eligible for a Certificate of Airworthiness 

tor !zport. 

BQDIPRIIT: 10 equipment other than engines and propellers are specified. 

RoweYer, the equipment required by CiYil Air Requlations Part q3.30 for 

IC aircraft for the proper operation of the aircraft must be installed. 

In addition, the aircraft may incorporate such military equipment (ezcept 

armament) as was oriqinally incorporated in the type for military or naval 

serYice. Additional equipment may be installed vhen it is subatantiated 

that it preaenta no hazard to safety. 

NOTI 1. Weight and Balance Report includinq list of equipment included in 

the certificated empty weiqht must be obtained for each aircraft. ~rmy 

or laYy weight recorda, vhen aYailable and in reasonably current condition, may be submitted in lieu of an actual veiqht. The equipment list 

need include no more than the follovinq: 

(a) Required equipP18nt as defined under "I!QDIP!II!HT" aboYe. 

(bl Additional items as may be reasonably considered remoYable and aro so located or of such veiqht that their remoY&l or addition could 

noticeably affect the weiqht and balance of the aircraft. Items 

built into the aircraft structure need not be listed. The equipment list must be prepared by the applicant for the approYal of the 

certificatinq C.A.A. representatiYe and in such form that it can be 

attached to the C.A.A. Operation Limitations. 

NOT! 2. The following statement must appear on the Operation Limitations: 

"This airplane must be operated at all times within the limitations set 

forth in t.o. AN01-BP-1 (for Radel s-17F) or t.o. ANOI-!G-1 (for ~odel 

B·17G) eacept in cases of maaimum loadinqs and airspeed limits in vhicb cases the Yaluea giYen in Aircraft Specification No. AL-1 must be 

obserYed. A copy of the T.O. and the aircrsft specification must be 

carried in the aircraft durinq flight." In all cases it vill be the 

responsibility of the applicant to secure a copy of the correct T.O. 

The c.A.A. does U2! haYe these documents a•ailabla for distribution. 

MOT! 3. .Ul structural repairs should be made in accordance vith 1\rmy r.o. No. 01•20!-3. If any repairs or modifications (other than those covered 

in the pertinent Ar~y or WaYy repair manuall are made prior to or subsequent to ML certification, it is the responsibility of the ovner to 

furnish sufficient eiYdence to a CiYil Aeronautics A~ministration representati•• to sbov that the modified airplane :naintains the same deqree of airworthiness as the oriqinal. The C.A.A. can qiYe no technical 

assistance on such matters since complete structural data for ML aircraft are not required by Part 9 and therefore are ~ot a•ailable in the C.A.A. 

NOT! ~. The follovinq placard shoul~ be promi~ently displayed in the 
• 

passenger compartment: RThis is a military type aircraft and onder the 

CiYil Air Regulations shall not be used tor tbe carriage ot passengers or cargo for compensation or hire." 

NOT! 5. Deleted. 

NOT! 6. Eligible tor 59,000 poanda vith outer ving tanka filled (Tokyo tanks). lith outer ving tanks empt' mazimam weight limited to sq,ooo poands. lith oater wing tanks partially filled use a straight line 

Yariation of weight between 54,000 and 59,000 pounds. 

NOT! 7. For certification for night flying the following mast be 

accomplished: 

(a) Replace the wing position lights with certificated units or satisfactorily modify the lights if pertinent. (Type A-9 wing position lights (AI-3033-5 tbrougb -8) mar be satisfactorily modified by painting the inside of the frosted coYer black. Type A-9 (AI-3033-1 

throagb -Q) are satisfactory vithoat modification. 

(b) Replace tbe tail light vitb a certificated anit. 

(c) If "Brigbt and Dim" conditions are proYided for tbe position lights, either tbe resistors aboald be disconnected from the circuits and a single-pole-single-throw switch shoald be ased to replace the tva 

single-pole-doable-tbrow switches presently installed for wing-tip and tail lights; or tbe switches sboald be placarded to indicate that 

only the "bright condition• should be used. In either case the tail 

light and wing-tip lights should operate on one switch. 

No original NL airworthiness certificates may be issued after 8/31/48. The 

list ot mandatory cbanges reqaired prior to original certification may be 

obtained from CAA Aircraft SerYice, lashington, o.c. Attn: A-298. 
' I 

I 

Liberty Foundation, Inc., 

Bourgoine, Timothy on 06/19/2013 

• P~e~ 

1 MR. STEVmsoN: You already asked him that 

2 question, Stuart. 

3 MR. OO!.DSTEIN: And I didn't get the answer 

4 that I th:Jught was responsive. Not that I didn't like, 

5 because I know what the answer is. I know what the 

6 regulations say. What I'm askin3 the witness -- I 

7 agree, he doesn't have the OOc:ument in front of him and 

8 I can certainly put it in front of him and I may oo 

9 that. But before I oo that, I have a right to ask him 

10 based on his experience as an A&P, because Ms. Wojcik 

11 believes that ~ A&P is an expert, based on his 

12 experience --

13 Q. (By llr. Goldstein) Do you agree, Tim, that 

14 Appendix 1 to Part 43 lists or defines airframe major 

15 alteratiODS? 

16 A. I c:bn' t know. What it does is all of the 

17 OOc:uments together help ne -- is the guide that I can 

18 use to make the decision if what I am doing is a major 

19 alteration or not. So I can use the definition of major 

20 alteration in Part 1.1, I can use the guidance in 

21 Appendix A, which there is a trenm:lous amount of 

22 guidance in there. And fran that -- and if still I'm 

23 tmSUre, then I can call the FAA arrl talk to my 

Pages 54 .. 57 of 65 

P~e56 

1 type certificate is owned by a different ccnpany. And I 

2 kept a copy of that with all my paperwork. Because when 

3 I began ~~~:>rking on the airplane, I pulled the type 

4 certificate, I did all the AD searches to clear any ADs 

5 or make sure we knew what ADs we were dealing with. 

6 Q. I'm going to show you a document that is already 

7 marked as an exhibit in this case. 

8 ADd thalllt you for sending these to me. 

9 MR. STEVENSON: No problem. 

10 MR. OOLDSTEIN: I t:hot.J:Iht. Maybe I'm 

11 mistaken. 

12 Q. (By llr. Goldstein) I thiDit it's an exhibit to --

13 I'm sorry. It's in Don Dodge's depositicm. 

14 Okay. I'm going to show you a document, Tim, if 

15 I can keep going. 

16 A. Sure. 

17 Q. llhich is deposition Exhibit 13, aDd ask you if 

18 that is the type certificate you were just referring to 

19 see. It says Transcontinental aDd Western at the top. 

20 

21 

22 

A. Right. I'm just kind of lookin3 it over. 

Q. SUre. 

A. It's been a while since I looked at this. This 

23 appears to be the same type certificate that I'm 

24 maintenance inspector and he can give ne guidance. 24 familiar with. 

25 Q. So as I Ullderstand wbat you're saying is that the 25 Q. The cme you were just referring to? 

Page 55 

1 detemimltion that the mechanic has to make as to 

2 whether or DOt saDething is a major alteration or DOt is 

3 subjective based upon the mechanic's familiarity with 

4 the airplane, with tbe PARs aDd so forth? 

5 A. No, it's not so nUJCh subjective. He has to make 

6 the decision am I think the FARs kind of guide it that 

7 way. But ... 

8 Q. Well, if it's DOt subjective, wouldn't you agree 

9 that wbat is stated in the PARs is the def.l.nition? I 

10 mean, it's --

11 A. I'm not go:in3 to quibble about what is a 

12 definition or what is guidance. I think I'm clear on 

13 that I use that OOcument, Appendix A, as well as the 

14 definition in 1.1 as well as talking to the FAA 

15 inspector to make that decision. 

16 Q. To belp you make a decision as to whether or DOt 

17 BaDething is a major alteraticm or DOt? 

A. That's correct. 

Page 57 

1 A. Yes. 

2 Q. If you maw, is that the same as tbe type 

3 certificate data sheet? 

4 A. I believe so. 

5 Q. Okay. So it's referred to both, as far as you 

6 !mow, as tbe type certificate aDd the type certificate 

7 data sheet? 

8 A. Yeah, I believe so. 

9 Q. Okay. Do you maw wbat a type design is for an 

10 aircraft? 

11 A. Not familiar with that. 

12 Q. Okay. I'm going to read to you wbat I believe is 

13 the definition of ainorthiness aDd ask you if you agree 

14 or dal't agree with it, okay. ADd that is, quote, "It 

15 confOIIIIS to its type certificate aDd applicable ADs aDd 

16 is in CODditian for safe flight.• 

17 A. I think that is pretty close. I nean, if you 

18 18 want to look at a real detailed definition of 

19 Q. Okay. Have you ever seen the type certificate or 19 airworthiness, we can look in the FARs. That covers a 

20 the type certificate data sheet for the r.iberty Belle? 20 lot of what is irrportant. When you look at an airplane 

21 

22 

23 

A. Yes. 21 for airworthiness, you're going to look to see that it 

Q. Do you recall where you saw it? 22 conforms to the type certificate; that any m.:xiifications 

A. When I first became involved with the airplane, I 23 to it are appropriately OOcumented; that it conforms to 

24 pulled the type certificate for B-17. It's un:ler 24 ADs; that any mtifications that are done to it, even 

25 Transcontinental, I think, it's not Boeing anymore. The 25 thotgh they're properly OOcumented, that they ~~~:>rk well 

1-505-244-3376 

New Mexico Depo 

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