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U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

.WASHINGTON, D.C.



### IN THE MATTER OF Oklahoma Skydiving Center FAA DOCKET NO. CP10SW0020 (Civil Penalty Action) DMS No. FAA-2010-1215 

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RESPONDENT'S BRIEF ON PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW; CLOSING AND SUMMATION 

### COMES NOW the Respondent, Oklahoma Skydiving Center, by and through its Counsel ofRecord and hereby submits its Briefon Proposed Findings ofFact and Conclusions ofLawfor the hearing held on January 10, 2012, before the Administrative LawJudge Richard C. Goodwin ofthe Department ofTransportation, in Oklahoma City, Oklahoma. On October 21, 2010, the Complainant issued a Final notice ofProposed Civil Penalty against Oklahoma Skydiving Center (Respondent) for violation of 14 C.P.R. §§ 91.7(a), 91.405(a), and 91.13(a) in the amount of $8,000.00. Respondent requested a formal hearing and Complainant submitted its Complaint on November 16, 2010. Respondent submitted its Answer December 1, 2010. I. ADMITTED FACTS 

### Oklahoma Skydiving Center was the operator of a Cessna P206A aircraft, civil aircraft N4682F, serial number P206-0282. On July 11, 2009, a Saturday morning, the Respondent was preparing for its weekend skydiving activities. Before operations could begin, Inspectors Lana Boler and Robert Terry of the Oklahoma City Flight Standards District Office performed an inspection of aircraft N4682F. At the conclusion of the inspection, an "Aircraft Condition Notice was issued by Inspector West listing the following discrepancies: Pilot seat stops do not meet manufacturer specifications (bolts installed)Lefthand flap hashole Right hand flap cracked Lefthandpassenger side window cracked and ducttaped The Aircraft ConditionNotice noted thatthe items listed "are" considered to be an imminent hazard to safety. Operation ofthe aircraft priorto correction "will" be contrary to pertinent Federal Aviation Regulations. A special flight permit "will" be required to be issued prior to operation if corrective action has not been taken. Inspector West showed 

### Mr. Reeves the alleged discrepancies and Inspector Terry personally spoke with the pilot regarding his intent regarding flying the aircraft and informed him of the notice. The Agency's Complaint charges that Oklahoma Skydiving violated§§ 91.7(a), 91.405(a), and 91.13(a) ofthe Federal Aviation Regulations, by operating the aircraft onJuly 11, 2009, while failing to address the alleged discrepancies noted by Inspector West on the notice, each ofwhich the FAA alleges rendered the aircraft unairworthy as alleged in the Complaint. The Agency requests this Courtto sustain its request for these alleged infractions. 

### PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Allegations I, II (1), (2), (4), (5), and (6) contained in the Complaint and admitted to in Respondent's Answer are deemed admitted. 

### II. Oklahoma Skydiving Operated N4682F on July 11, 2009 Respondent admits it operated N4682F on July 11-12, 2009, that a hundred customers jumped out of the aircraft during the approximate thirty-five cycles it flew those two days. Further, 

### Mr. Reeves admits he flew the aircraft to Riverside Airport in Tulsa, Oklahoma on Monday, July 13, 2009 for repair ofthe alleged discrepancies listed in the notice, and replacement ofthe seat stops which he had borrowed offtwo other aircraft for the weekend. (294 Tr. 6-17) 

### PROPOSED FINDING OF FACT AND CONCLUSIONS OF LAW Oklahoma Skydiving OperatedN4682F onJuly 11, 2009. 

### II. N4682F was airworthy when Oklahoma Skydiving Operated it on July 11. 2009 A. Statutory and Regulatory basis for Airworthiness

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### Respondent adopts and incorporates by reference the Agency'sposition onthe Statutory and Regulatory basis for Airworthiness contained inits briefonPage 4, paragraphIII(A). 

### B. Airworthiness CaseLaw As the Agency also stated, Inspector Boler and Respondent's expert testified correctly that an aircraft is "airworthy only when it conforms to its type design or its properly altered condition and it must be safe for flight. (61 Tr. 11-13; 125 Tr. 11-14) In Administrator v. Thibert, 

### NTSB Order No. EA-5305 (2007), the Administrator brought a certificate action against the pilot of a helicopter alleged to be unairworthy because a cork had been inserted into an oil pan drainplug that had a small leak. The Administrator took the position that the cork was not a proper part and that the introduction ofthe part into the quick 

### drain brought the aircraft out ofconfonnity with its type design. Like the case at bar no evidence ofthe type certificate or data was introduced at trial. The Board stated:

.... the Administratorhas the burden ofproving that the aircraft was unairworthy by a preponderance ofthe evidence. The Board stated further the Administrator has. the burden to prove the regulatory violations she charges, and the aforementioned two-prong standard for airworthiness, the Administrator must prove that the aircraft either did not conform to its type certificate or was not in a condition for safe operation, in order to prevail. The Administrator has not met her burden in this case. The Administrator has not provided the aircraft's type certificate, type certificate data sheet, or any maintenance manuals or relevant directives for the Board's review. Moreover, the Administrator's inspectors, in investigating these alleged violations, stated that they did not review the type certificate orother such items in determining the airworthiness ofthe aircraft.

Another case involving the Administrator's burden ofproofisAdministrator v. Opat, 

### NTSB OrderNo. EA-5290 (2007). Inthis certificate action case, the ALJpresided over a cast in which the Administratorproposed a suspension for a pilot who operated an aircraft with the landing gearpinned in the downposition without a ferry permit. The ALJ dismissed the Administrator's case stating: Given that the Administrator has the burden to prove the regulatory violations she charges, and the aforementioned two prong standard for airworthiness, the Administrator must prove that the aircraft either did not conform to its type certificate or was not in a condition for safe operation, in order to prevail. The Administrator has not met this burden in this case .... Therefore, the

3Administratorhad the burden to prove that the aircraft did not conform to its type design, as approved under the type certificate. Without proving this key element, the Administrator cannotprevail Perhaps the most noteworthy is the fact that the Administrator did not introduce the type certificate itselfinto evidence

.... Regarding small deviations from the original type design, in NTSB in

### Administratorv. Frost, NTSB OrderNo. EA-4680 (1998), presided over a case in which a turbine outlettemperature gauge did nothave a red line at 793 degrees C. In actuality, a line was present buthad faded. The Board stated:

And: We have concluded, however, that when small, insignificant deviations are present, an aircraft may still substantially conform to it type certificate design.

Norman wear and tear such as this, if not adversely affecting safety, is not considered an airworthiness violation. Similarly, the benchmark case regarding airworthiness is

### Administratorv. Calavaero, EA 2321, 5 NTSB 1099, 1101 (1986) stated: We agree withthe Administrator's position that an aircraft, in addition to being in a safe condition to operate, must be in conformity with its type certificate in order to be considered airworthy. However, we do not agree that every scratch, dent, "pinhole" ofcorrosion, missing screw, or other defect, no matter howminor or where located onthe aircraft, dictates the conclusion that the aircrafts design, construction, orperformance has been impaired bythe defect to the degree that the aircraft no longer conforms to its type certificate.

1. Duct tape used to temporarily repair the left rearwindow did not render the aircraft unairworthy in violation of14 C.F.R. 91.7(a). The Agency'spositionregarding repair ofthe window canbe summarized by stating that in InspectorBoler'sOPINION, the repair was not acceptable to the Administrator. She admitted under oath she did not bring into evidence anything that would indicate the methods ofrepair that were acceptable to the Administrator as indicated in the regulations. (145 Tr. 1-10) In addition, she admitted she did notrefer to the Cessnarepair manual in regard to what would be a properrepair and didn'trefer to the type certificate informationto determine the airworthiness of the aircraft. (108 Tr. 17-20; 109 Tr. 6-22; 110 Tr. 1-10; 144 Tr. 20-22)

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### a. The Administrator failed to meet his burden in regard to proving that the aircraft did not conform to its type certificate. InspectorBoler admitted she did not provide any type certificate datatothis Court for Review. (120 Tr. 2-6; 123 Tr. 5-14; 126 Tr. 10-16) In addition, she read into the record an excerpt from 8900.1Volume 14, Ch. 1, Section 5, 14-87 (D) that states: To be airworthy an aircraft must conformto its type certificate as well as be in a condition for safe operation. A word ofcaution is necessary, however, ifthis concept ofairworthiness is to applied effectively in enforcement cases .... However, ifthe condition ofthe aircraft is such that it would not be considered to be inconformance with the type certificate, yet it is not clearly unsafe for flight, then the NTSB will probably not sustain a finding that the aircraft is not airworthy inthe absence ofpositive evidence concerning the contents ofthe type certificate data and the particulars in which the aircraft in question differs from that data. (125 Tr. 11-22; 126 Tr. 1-16) When asked ifshe had provided any positive evidence concerning the contents ofthe type certificate data and the particulars in which the aircraft differs from that data, she stated "No." (125 Tr. 11-22; 126 Tr. 1-16) The Cava/aero case required the Administrator to prove that the aircraft's design, construction, orperformance had been impaired by the defect to the degree thatthe aircraft no longer conformed to its type certificate. There was no evidence presented by the Administrator that a windowwith a crack repaired with duct tape impaired this aircraft. Quoting the Board in Thibert: The Administratorhas not mether burden in this case. The Administrator has not provided the aircraft's type certificate, type certificate data sheet, or any maintenance manuals or relevant directives for the Board's review. Moreover, the Administrator's inspectors, in investigating these alleged violations, stated that they did not reviewthe type certificate orother such items in determining the airworthiness ofthe aircraft. Inthe case at bar, Inspector Boler admitted she did not review the type certificate date sheet, or any maintenance manuals during her investigation. In addition, she failed to proviqe this, or any relevant directives for the board'sreview. (108 Tr. 17-20; 109 Tr. 6-22; 110 Tr. 1-10; 144 Tr. 20-22)

5Comparingthis case to the case in 

### Opat, the Board stated: Therefore, the Administrator had the burden to prove that the aircraft did not conformto its type design, as approved under the type certificate. Without proving this key element, the Administrator cannot prevail. In the case atbar, the Administrator failed to prove this key elementwhenhis staffwalked into the courtroom becausethey failed to prove the aircraft failed to conform to its type design, as approved under the type certificate. The type certificate was not introduced at trial and not utilized inthe investigation. 

### b. TheAdministratorfailed to meet his burden in regard to provingthe aircraft was unsafe for flight. Counsel forthe Agency testifies in his briefthatthe safety ofN4682F was compromised when its brokenpassenger windowwas covered with duct tape rather thanremoved and. replaced. In fact, Inspector Boler indicated she did not indicate any safety issues inher investigation surrounding a cracked window. (Ill Tr. 11-18) She did, however, list many reasons why this alleged defect could affect flight safety. First she statedpieces of

### itcould come loose andhurt he horizontal orvertical stabilizer. This absurd testimony is self-serving and carries no weight. Fi,rst, she testified no part ofthe cracked window was loose. Secondly, common sense dictates this light material and the slow speed ofthe aircraft give no cause for alarm. The fact the windowrequired repair does not make the defect suchthat a safety offlight issue arises. The overwhelming weight ofthe evidence indicates the inspectors, both Inspector Boler and InspectorTerry, did notbelieve these alleged discrepancies to be a safety offlight issue. Not only did the inspectors notnotify the waiting skydiving customers ofthe unairworthiness ofthe aircraft, they did notreturnto the locationto ensure compliance with the conditionnotice. Another indicator is the fact that Inspector Terry testified he didn'tgo backto speak to pilot David Harbold about flying the alleged unairworthy aircraft. (172 Tr.9-12) Hetestifiedhe did not begin aninvestigation ofthe pilotfor flying the aircraft with these alleged discrepancies and a warning notice was neverissued. (183 Tr. 2-4, 193 Tr. 1-6) The inspectors alleged many reasons for why each particular minor alleged defect could cause a safety offlight issue, but failed to provide any evidence to that effect.

6PROPOSED FINDINGS OF FACTAND CONCLUSIONS OF LAW The Administrator failed to meethis burden to prove the aircraft was unairworthy when Oklahoma Skydiving Center operated it onJuly 11, 2009. The Administrator failed to prove eitherprong ofthe two-prong test regarding airworthiness. First, the Administrator failed to meethis burden inregard to proving the aircraft did not conform to its type certificate because it failed to profferpositive evidence concerning the contents ofthe type certificate data and the particulars in which the aircraft in question differs from that data. Secondly, the Administrator failed to prove the aircraft's design, construction, orperformance had been impaired by the alleged defect to the degree thatthe aircraftno longer conformed to its type certificate. Thirdly, the Administrator failed to meet his burden in regard to proving the aircraft was unsafe for flight inthat Inspector Bolerdid not testify to the safety ofthe aircraft accept to say this alleged defect madethe aircraft no longer conform to its original type certificate design. InspectorBolerdid not indicate any safety issues regarding the broken window, and she is a certificated aircraft mechanic with inspection authority. 

### 2. The Agency failed notonly to meet his burden thatthe aircraftwas unairworthy with alleged incorrect seat stops installed, butfailed to meet these alleged incorrect seat stops were actually installed in the aircraftwhen itoperated. InspectorBolerand Mr. Reeves disagreed as to the seat-stops installed inthe aircraft. 

### Mr. Reeves testified the aircraft had passed numerous 1 00-hour inspections with theseparticular seat stops installed. (293 Tr. 4-9 ). Regardless, Mr. Reeves agreed to replace the seat stops and scavenged two from other aircraft and installed them onthe aircraft in question. ((294 Tr. 16-18; 300 Tr. 7-8) There is absolutely no evidence to the contrary and Inspector Bolerindicates she hasno evidence to refute that he did in fact install them prior to operations onJuly 22, 2009. (82 Tr. 7-18; 91 Tr. 1-6) These facts are ignored in the Administrator's brief. In addition, Inspector Bolerfailed to investigate the type certificate data to determine ifin fact the seat-stops were in conformity with the type certificate.



### a. TheAdministratorfailed to meet his burdenin regard to provingthe aircraft did notconform to its type certificate. InspectorBolertestified under oath that she didn'trefer to any type certificate data sheet. She instead deferred to her experience and knowledge ofthose aircraft. (82 Tr. 19-22; 83 Tr. 1-

719) Additionally, she stated she did not provide any type certificate data to this Courtfor Review. (120 Tr. 2-6; 123 Tr. 5-14; 126 Tr. 10-16) In fact, she read into the record an excerpt from 8900.1Volume 14, Ch. 1, Section 5, 14-87 (D) that states: To be airworthy an aircraft must conform to its type certificate as well as be in a condition for safe operation. A word ofcaution is necessary, however, ifthis concept ofairworthiness is to applied effectively in enforcement cases .... However, ifthe condition ofthe aircraft is such that it would not be consideredto be in conformance with the type certificate, yet it is not clearly unsafe for flight, thenthe NTSB will probably not sustain a finding that the aircraft is not airworthy in the absence ofpositive evidence concerning the contents ofthe type certificate data and the particulars in which the aircraft in question differs from that data. (125 Tr. 11-22; 126 Tr. 1-16) When asked ifshe had provided any positive evidence concerning the contents ofthe type certificate data and the particulars in which the aircraft differs from that data, she stated "No." (125 Tr. 11-22; 126 Tr. 1-16) The Cava/aero case required the Administrator to prove thatthe aircraft's design, construction, orperformance had been impaired bythe defect to the degree that the aircraft no longer conformed to its type certificate. There was no evidence presented by the Administrator that a windowwith a crack repaired with duct tape impaired this aircraft. Quoting the Board in Thibert: The Administratorhas not met her burden in this case. The Administrator has not provided the aircraft's type certificate, type certificate data sheet, or any maintenance manuals orrelevant directives for the Board's review. Moreover, the Administrator's inspectors, ininvestigating these alleged violations, stated that they did not review the type certificate or other such items in determining the airworthiness ofthe aircraft. Inthe case atbar, Inspector Boler admitted she did not reviewthe type certificate date sheet, or any maintenance manuals during her investigation. Inaddition, she failed to provide this, or any relevant directives for the board'sreview. (108 Tr. 17-20; 109 Tr. 6-22; 110 Tr. 1-10; 144 Tr. 20-22) Comparingthis case to the case in Opat, the Board stated: Therefore, the Administratorhad the burden to prove that the aircraft did not conform to its type design, as approved under the type certificate. Without proving this key element, the Administrator cannot prevail.

8Inthe case at bar, the Administrator failed to prove this key element when his staffwalked into the courtroombecause they failed to prove the aircraft failed to conformto its type design, as approved under the type certificate. The type certificate was not introduced attrial andnot utilized in tlie investigation. 

### b. TheAdministratorfailed to meet his burden in regard to provingthe aircraft was unsafe for flight. InspectorBolertestified that the alleged incorrect bolts installed inplace ofthe Cessna seat-stops were unsafe, but gave no basis for that conclusion exceptthatthey were the incorrect seat stops. In addition, she agreed itwas possible the aircraft could have flown "hundreds and hundreds" ofhours with these bolts installed. (93 Tr. 19; 94 Tr. 1) The additional safety ofa more stout fastener is completely ignored inregard to whethertheboltinstalled was saferthan the Cessna seat stop. The overwhelming weight ofthe evidence indicates the inspectors, both InspectorBoler and Inspector Terry, did not believe these alleged discrepancies to be a safety offlight issue. Not only did the inspectors not notify the waiting skydiving customers ofthe unairworthiness ofthe · aircraft, they did notreturn to the location to ensure compliance with the conditionnotice. Another indicator is the fact that Inspector Terry testified he didn'tgo backto speakto pilot David Harbold about flying the alleged unairworthy aircraft. (172 Tr.9-12) He testifiedhe did not begin an investigation ofthepilotfor flying the aircraft with these alleged discrepancies and a warning notice was never issued. (183 Tr. 2-4, 193 Tr. 1-6) The inspectors alleged many reasons for why eachparticularminor alleged defect could cause a safety offlight issue, but failed to provide any evidence to that effect.



### c. TJte Administratorhad no evidence thatthe operations were conducted with the alleged incorrect seat stops installed. InspectorBolertestified she had no evidence to refute Mr. Reeves' assertion thathe was able to install both Cessna seat stops priorto the first operation that morning. (82 Tr. 7-18) (91 Tr. 1-6) 

### PROPOSED FINDINGS OF FACT AND CONCLUSIONS OFLAW The Administrator failed to meet his burden to prove the aircraft was unairworthy when Oklahoma Skydiving Center operated it on July 11, 2009. TheAdministratorfailed to prove

9eitherprong ofthe two-prong test regarding airworthiness. First, the Administrator failed to meethis burden inregard to proving the aircraft did not conform to its type certificate because it failedto profferpositive evidence concerning the contents ofthe type certificate data and the particulars inwhich the aircraft in question differs from that data. Secondly, the Administrator failed to prove the aircraft's design, construction, orperformance had been impaired by the alleged defect to the degree that the aircraft no longer conformed to its type certificate. Thirdly, the Administrator failed to meet his burden in regarding to proving the aircraft was unsafe for flight. Lastly, Inspector Bolerdid not testifY to the safety ofthe aircraft accept to this alleged defect made the aircraft no longer conformto its original type certificate design. In addition, the Administratorhad no evidence the aircraft was operated without the correct seat-stops installed. 

### 1. An 

### alleged screw protruding through the lower skin ofthe left flap did not render the aircraft unairworthy in violation of14 C.F.R. 91.7(a). Falling underthe category ofdiscrepancies as cited in 

### Cava/aero, this minordiscrepancy causing aircraft to longer conform to its type design is not supported by the evidence. In fact, Inspector Bolertestified thatit indeed made the aircraft no longer conform to the type certificate, but when asked to support this position, she had not a shred ofevidence to supportit; not a type certificate, no structural repair manual, no Cessnamaintenance manual. With all these resources at herdisposal, shejusthadher opinion. (97 Tr. 17-22; 98 Tr. 1-22; 99 Tr. 1-5)



### a. The Administrator failed to meet his burden in regard to proving that the aircraft did not conform to its type certificate. Inspector Boler admitted she did notreviewthe type certificate, type design ordata sheets, structural repair manual for the aircraft, Cessna maintenance manuals to determine ifthis alleged defect broughtthe aircraft out ofits conformity to the original type design. (97 Tr. 22; 98 Tr. 1-22; 99 Tr. 1-5) Infact, she further stated she did notprovide any type certificate datato this Court for Review. In fact she indicated she didn'tutilize a maintenance manual, structural repair manual or any otherresource. (97 Tr. 17-22; 98 Tr. 1-22; 99 Tr. 1-5; 98 Tr. 10-13; 120 Tr. 2-6; 123 Tr. 5-14; 126 Tr. 10-16) In fact, she read into the record an excerpt from 8900.1Volume 14, Ch. 1, Section 5, 14-87 (D) that states:

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To be airworthy anaircraft must conform to its type certificate as well as be in a condition for safe operation. A word ofcaution is necessary, however, ifthis concept ofairworthiness isto applied effectively in enforcement cases .... However, ifthe condition ofthe aircraft is such that it would not be considered to be in conformance with the type certificate, yet it is notclearly unsafe for flight, thenthe NTSB will probably not sustain a finding that the aircraft is not airworthy in the absence ofpositive evidence concerning the contents ofthe type certificate data andthe particulars inwhich the aircraft in question differs from that data. (125 Tr. 11-22; 126 Tr. 1-16) When asked ifshe had provided any positive**evid~nce** concerning the contents ofthe type certificate data and the particulars in which the aircraft differs from that data, she stated "No." (125 Tr. 11-22; 126 Tr. 1-16) The Cava/aero case required the Administrator to prove thatthe aircraft's design, construction, orperformance had been impaired by the defect to the degree thatthe aircraft no longer conformedto its type certificate. There was no evidence presented by the Administrator that a window with a crackrepaired with ducttape impaired this aircraft. Quotingthe Board in Thibert: The Administrator has not metherburden inthis case. The Administratorhas not providedthe aircraft's type certificate, type certificate data sheet, or any maintenance manuals orrelevant directives for the Board'sreview. Moreover, the Administrator's inspectors, in investigating these alleged violations, statedthat they did not reviewthe type certificate or other such items indetermining the airworthiness ofthe aircraft. Inthe case at bar, Inspector Boler admitted she did notreview the type certi:Ucate date sheet, or any maintenance manuals during herinvestigation. In addition, she failed to provide this, or any relevant directives for the board'sreyiew. (108 Tr. 17-20; 109 Tr. 6-22; 110 Tr. 1-10; 144 Tr. 20-22) Comparing this case to the case in Opat, the Board stated: Therefore, the Administratorhadthe burden to prove that the aircraft did not conform to its type design, as approved underthe type certificate. Without proving this key element, the Administrator cannot prevail. In the case atbar, the Administrator failed to prove this key element whenhis staffwalked into the courtroom because they failed to prove the aircraft failed to conformto its type design, as

11approved under the type certificate. The type certificate was notintroduced attrial and not utilized in the investigation. 

### b. The Administratorfailed to meet his burden in regard to provingthe aircraft was unsafe for flight. The inspectors opined ofall types ofcatastrophic failures that could occur as a result of this alleged minor defect to include the following: jamming ofthe flap, asymmetrical flap, controllability issues, etc. (53 Tr. 18-22; 54 Tr. 1-8) In fact, Inspector Bolercould not determine attrial whichpart ofthe screw was protruding from the flap based onthe evidence brought to this Court. (95 Tr. 9-22; 96 Tr. 1-13) The condition notice stated, "Lefthand flap has hole." At trial, it was nowa screwthat was protruding from the flap, but she couldn'trecall whether it was the head ortip, and couldnot tell from the picture presented by the Administrator as evidence. Inspector Terry opined to the effects ofa "loose screw." (157 Tr. 22; 158 Tr. 1-5) There was no evidence presented ofany loose screws inthis case. The overwhelming weight ofthe evidence indicates the inspectors, both Inspector Boler and Inspector Terry, did not believe these alleged discrepancies to be a safety offlight issue. Not only did the inspectors not notify the waiting skydiving customers ofthe unairworthiness ofthe aircraft, they did notreturn to the location to ensure compliance with the condition notice. Another indicator is the fact that Inspector Terry testified he didn'tgo back to speak to pilot David Harbold about flying the alleged unairworthy aircraft. (172 Tr.9-12) He testified he did not begin aninvestigation ofthe pilotfor flying the aircraft with these alleged discrepancies and a warning notice was never issued. (183 Tr. 2-4, 193 Tr. 1-6) The inspectors alleged many reasons for why eachparticular minor alleged defect could cause a safety offlight issue, but failed to provide any evidence to that effect. PROPOSED FINDINGS OF FACTAND CONCLUSIONS OF LAW TheAdministratorfailed to meet his burden to prove the aircraft was unairworthy when Oklahoma Skydiving Center operated it on July 11, 2009. The Administratorfailed to prove eitherprong ofthe two-prong test regarding airworthiness. First, the Administrator failed to meethis burden in regard to proving the aircraft did not conform to its type certificate because it failed to profferpositive evidence concerning the contents ofthe type certificate data and the

12particulars in which the aircraft in question differs from that data. Secondly, the Administrator failed to prove the aircraft's design, construction, orperformancehad been impairedby the alleged defect to the degree that the aircraft no longer conformed to its type certificate. Thirdly, the Administrator failed to meethis burden inregarding to proving the aircraft was unsafe for flight. The inspector's statements regarding safety as it pertains to this trivial defect were not supported by the evidence and contrived. 

### 4. The Agency failed to meet his burden that the aircraftwas unairworthywith alleged cracks in 

### the lower skin ofthe right flap.

a. The Administratorfailed to meet his burden in regard to provingthatthe aircraft did not conform to its type certificate. InspectorBolertestified the**rig~t** flap was cracked. This statement under oath conjures up images of jagged, ripped sheet metal. In fact, the evidence supported a more accurate statementthat there were minute stress fractures surrounding several rivets 

### inthe right flap. The
one time InspectorBolerindicates she reviewed the type certificate data sheet, was the time-it was ofno help to her: in determining date regarding a stress fracture inthe flap. (120 Tr. 2-3) She did however indicate she had not provided to this Court as evidence. The Administrator makes general assertions inthe briefonpage 20, paragraph4(a), "When an aircraft has unresolved discrepancies, it is not airworthy. Is counsel purporting that a rip inthe leather seat ofthe aircraft renders it unairworthy? Certainly not. The two-prong test still applies to airworthiness investigations. She also admitted she did not reviewthe type certificate, type design or data sheets, structural repairmanual, or Cessna maintenance manuals for the aircraft in orderto determine ifthis alleged defect brought the aircraft out ofits conformity to the original type design. (103 Tr. 5-22; 104 Tr. 1-2) In addition, she stated she did notprovide any type certificate datato this Court for its Review. (120 Tr. 2-6; 123 Tr. 5-14; 126 Tr. 10-16) In fact, she read into the record an excerpt from 8900.1Volume 14, Ch. 1, Section 5, 14- 87 (D) that states: To be airworthy an aircraft must conform to its type certificate as well as be in a condition for safe operation. A word ofcaution is necessary, however, ifthis concept ofairworthiness is to applied effectively in enforcement cases .... However, ifthe condition ofthe aircraft is suchthat it would not be consideredto be in conformance with the type certificate, yet it is not clearly unsafe for flight,

13then theNTSB will probably not sustain a finding thatthe aircraft is not airworthy inthe absence ofpositive evidence concerning the contents ofthe type certificate data and theparticulars inwhich the aircraft in question differs from that data. (125 Tr. 11-22; 126 Tr. 1-16) When asked ifshe had provided any positive evidence concerning the contents ofthe type certificate data and the particulars in which the aircraft differs from that data, she stated ''No." (125 Tr. 11-22; 126 Tr. 1-16) The Cavalaero case required the Administratorto prove that the aircraft's design, construction, orperformance hadbeen impairedby the defect to the degree that the aircraft no longerconformed to its type certificate. There was no evidence presented by the Administrator that a window with a crackrepaired with duct tape impaired this aircraft. Quoting the Board in Thibert: The Administratorhas not met her burden in this case. The Administratorhas not providedthe aircraft'stype certificate, type certificate data sheet, or any maintenance manuals orrelevant directives for the Board'sreview. Moreover, the Administrator's inspectors, in investigating these alleged violations, statedthat they did not reviewthe type certificate orother such items in determining the airworthiness ofthe aircraft. In the case at bar, Inspector Boler admitted she did not reviewthe type certificate date sheet, orany maintenance manuals during her investigation. In addition, she failed to provide this, or any relevant directives for the board'sreview. (108 Tr. 17-20; 109 Tr. 6-22; 110 Tr. 1-10; 144 Tr. 20-22) Comparing this case to the case in Opat, the Board stated: Therefore, the Administrator hadthe burdento prove that the aircraft did not conform to its type design, as approved underthe type certificate. Without proving this key element, the Administrator cannot prevail. Inthe case atbar, the Administrator failed to prove this key element whenhis staffwalked into the courtroom becausethey failed to prove the aircraft failed to conformto its type design, as approved under the type certificate. The type certificate was not introduced at trial and not utilized in the investigation. 

### b. The Administrator failed to meet his burden in regard to proving the aircraft 

### was unsafe for flight.

14Inspector Bolertestified to possible safety concerns regarding these cracks inthe flap, but would notproffer any examples. Inspector Terry, again, conjured up images ofcatastrophic failures associated with these minute cracks that are normally repaired with a skinpatch. None ofthe inspectors couldpointto any resources to determine ifthese cracks were out oftolerances. Not one resource. This Court should conclude there are none orthey wouldhave introduced them as evidence. Again, this case is based on opinion. The overwhelming weight ofthe evidence indicates the inspectors, both InspectorBoler and InspectorTerry, did notbelieve these alleged discrepancies to be a safety offlight issue. Not only did the inspectors notnotify the waiting skydiving customers ofthe unairworthiness ofthe aircraft, they did notreturn to the locationto ensure compliance with the condition notice. Another indicator is the fact that Inspector Terry testifiedhe didn'tgo backto speakto pilot David Harbold about flying the alleged unairworthy aircraft. (172 Tr.9-12) He testified he did notbegin aninvestigation ofthe pilot for flying the aircraft withthese alleged discrepancies and
a warning notice was neverissued. (183 Tr. 2-4, 193 Tr. 1-6) The inspectors alleged many
reasons for why eachparticular minor alleged defect could cause a safety offlight issue, but failed to provide any evidence to that effect. 

### PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW The Administrator failed to meethis burden to prove the aircraft was unairworthy when Oklahoma Skydiving Center operated it on July 11,2009. The Administrator failed to prove eitherprong ofthe two-prong testregarding airworthiness. First, the Administratorfailed to meethis burden inregard to proving the aircraft did not conformto its type certificate because it failed to profferpositive evidence concerning the contents ofthe type certificate data andthe particulars in whichthe aircraft inquestion differs from that data. Secondly, the Administrator failed to prove the aircraft's design, construction, orperformance had been impaired by the alleged defectto the degree thatthe aircraft no longer conformed to its type certificate. Thirdly, the Administrator failed to meethis burden inregarding to proving the aircraft was unsafe for flight. 

### IV. TheAgency failed to meet its burden that Oklahoma Skydiving Centerviolated Section 91.405(a) when it allegedly failed to have the aircraftinspected as prescribed in 

### SubpartE.

15and did not between required inspections

.... have discrepancies repaired as prescribed in part 43 ofthis chapter. Respondent asserts at no time was the aircraft operated in anunairworthy condition. As such, all inspections were performedin accordance with Federal Aviation Regulations as outlined inpart43. 

### Mr. Reeves testified he ferried the airworthy aircraft to Riverside Airport in Tulsa, Oklahoma for repairs onMonday, July 13,2009. (307 Tr. 16-22) He further testified it was 

### in the mechanic's possession from July 13, 2009 until the repairs were made onJuly 17, 2009. (299 Tr. 1-22; 200 Tr. 1-4) Lastly, he testified that all ofthe logbooks for the aircraft were inpossession ofthis mechanic, which was collaboratedby Inspector Kout during his testimony. Inspector Koutindicates all the maintenance workthat Inspector Bolerindicated made the aircraft unairworthy was repaired on orbefore July 17, 2009. (212 Tr. 4-6) The Administrator brings up the fact there is no indicationthe seat stops were repaired until July 24, 2009 during the 100-hourinspection. (Ex. A-12). (214 Tr. 4-9). Again, the Administrator ignores uncontroverted testimony that the seat stops hadbeenreplaced withborrowed ones on July 11, 2009. 

### Mr. Reeves again testifies hehas new ones put in at the 100-hour inspection so he
canreturn the ones he borrowed. (300 Tr. 9-22; 301 Tr. 1) Mr. Reeves was not able to update the logbooks onJuly 11, 2009 regarding the borrowed seat-stops because he was not 

### in possession ofthe logbooks. All repairs to the aircrafthave been duly noted by the qualified mechanic who madethe repairs. PROPOSEDFINDINGS OF FACT AND CONCLUSIONS OF LAW The Agency has failed to show Respondent violated the above referencedregulation because the aircraft was never in anunairworthy conditionrequiring mandatory repair and inspectionpriorto flight. All subsequentrepairs were made and all repairs duly noted by the mechanic performing the inspection astestified to by Inspector Kout. (212 Tr. 4-6). The replacement ofthe borrowed seat stops with the new seat stops was performed atthe 1 00-hour inspection and noted inthe logbooks. ( 210 Tr. 22; 211 Tr. 1-22; 212 Tr. 1-6)

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### V. TheAgency failed to prove Section 91.13(a) was violated when, as the operatorof N4682F, Oklahoma Skydiving Center. acted in an allegedly careless and reckless manner so as to endangerthe life orproperty ofanother. The Agency has failed to show Respondent violated the above referenced regulation because the aircraft was never in an unairworthy condition requiring mandatory repair and inspectionpriorto flight. As such, there is no basis for a Section 91.13(a) violation. 

### PROPOSED FINDINGS OF FACTAND CONCLUSIONS OFLAW The Agency has failed to showRespondent violated the above referenced regulation because the aircraft was never in an unairworthy condition requiring mandatory repair and inspectionpriorto flight. As such, there is no basis for a Section 91.13(a) violation. 

### VI. CLOSING AND SUMMATION The Administrator failed to state in his Complaint that the aircraft was ever flown in an unairworthy condition, only that the Inspector had indicated it was unairworthy in her condition notice. The issuance ofa condition notice is not dispositive ofthe actual discrepancies noted and whether it would factually render the aircraft unairworthy. As such, the Complaint, ifall taken as true AS IT IS PRESENTED to this Court, would not be indicative violations by Respondent. Instead, the Administrator must have proven by a preponderance ofthe evidence, that the aircraft was 

### in fact unairworthy, a fact which they failed to do. 

### PROPOSED FINDINGS OF FACT AND CONCLUSIONS OFLAW The Agency has failed to state in it Complaint a basis for violation by Respondent. It merely states a condition notice was issued alleging the unairworthiness. Itmakes no factual claimthat it indeed was unairworthy, therefore, the Administrator's claim must be denied for failure to state a claim for whichreliefmay be denied. 

### VI. PENALTY Respondent asserts there was no violation ofthe federal aviation regulations 

### in this case and that the aircraft 

### in question was only operated 

### inan airworthy condition. As such, no penalty should be assessed.

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### VII. PRAYER
WHEREFORE, 

### the Respondeittrequests that

### this Courtfind that 

### the Administratorfailed to meet its burden ofproof 

### showing by a preponderance ofthe reliable, probative, and substantive evidence 

### that Oklahoma Skydiving Center operated N4682F in an unairworthy condition, without 

### recording and 

### repairing discrepancies, and in 

### a careless or reckless manner, for which a penalty 

### would apply. Respectfully submitted this 6th day ofApril, 2012. Respectfully submitted,

Bret A. 

### Glenn OBA #19815 414 N.W. 4th Street, Suite 200 Oklahoma City, Oklahoma 73102 Telephone (405) 702-4980 Fax (405) 702-4984 Attorney For Respondent

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.

### LIST OF CITATIONS Administratorv. Thibert, NTSB OrderNo. EA-5305 (2007) Administrator v. Opat, NTSB OrderNo. EA-5290 (2007). Administrator v. Frost, NTSB OrderNo. EA-4680 (1998) Administrator v. Calavaero, EA2321, 5 NTSB 1099, 1101 (1986)

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# ·"

CERTIFICATE OF SERVICE I hereby certiJY that the signed original and a copy ofRespondent's BriefofProposed Findings of Fact and Conclusions of Law; Closing and Snmmation, have 

### been sent this day by CERTIFIED 

### MAIL
- RE11JRNRECEIPTREQUESTED, and via FirstClass Mail, 

### to: 

## FAA 800 IndependenceAve., S.W. Washington, DC 20591 Attn: Hearing Docket Clerk; AGC-430 Wilbur Wright Building

- Suite 2W1000
I hereby certizy that a copy ofRespondent's BriefofProposed Findings ofFact and Conclusions ofLaw; Closing and Summation, have been sent this day by CERTIFIED 

### MAIL- RE11IRN RECEIPTREQUESTED, to: Gregory S. Lander Attorney, Safety EnforcementBranch Office ofthe Regional Counsel SouthwestRegion Federal Aviation Administration 2601 Meacham Blvd., Room 633 Fort Worth, Texas 76137 817.222.5083 Telephone 817.222.5945 The Honorable Richard C. Goodwin, Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. Washington, DC 20590 202.366.2139 Attorney-Advisor 202.366.5121 Legal Assistant 202.366.7536 Fax

BretA. Glenn

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