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UNITED STATES OF AMERICA c EC E I v ED 

DEPARTMENT OF TRANSPORTATI~>I~ 

OFFICE OF HEARINGS AUG 2 2 2012 

WASHINGTON, D.C. HEARING DOCKET 

T n the Matter of: 

Aviation Technical Services, Tnc. - . 

FAA Case No. 2010NM010105 

.FDMS No, FAA-2011-0682 

l 

r.n 

Judge Richard C. Goodwin -o 

MOTION FOR A DECISION 

Federal.t\viarion Administration (FAA.), Complainant in d1e above-captioned 

matter, pursuant to the provisions of 14 C.F.R. § 13.21 S(t)(5) and Rule 56 of the federal 

Rules of Civil Procedure (.FRCP), hereby moves for a Decision (Summary Judgment) in tlJ.i.s 

case, since, after considering the pleadings and the attached declarations and evidence, lt 

should be clear that there is no genuine issue as to the material facts alleged and discussed 

below, and the Ji'.r'\A is entitled to a judgment in this case as a matter of law. 

BACKGROUND 

This case arose when routine FAA surveillance uncovered the fact that Respondent 

had perfonned maintenance on fqur different Boeing 73 7 actuator beam assemblies and had 

iailed lo follow the applicable methods an.d techniques for the procedures performed. 

Complainant issued a Notice of Proposed Civil Penalty and conduct an infom1al conference 

with Respondent and irs coun~el. A ft.er the panics were unable to reach settlement, 

Complainant t.1Jcd a Complaint and later, on January 11, 2012, filed an Amended Complaim 

which states as follows: 
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TL 

1. Aviation Technical Services, Inc. (ATS) is now, and at all times mentioned herein 

was, the ho)der of Repair Station Certificate No. HN6R593N. 

2. ATS performed maintenance on behalf of Southwest Airlines '(SW A), 

(an air carrier having a continuous airworthiness maintcna!lcc progn.un) including: 

a. rhe repair of Boeing 737 main landing gear actuator beam assembly part 

number 65-46108-19 serial number 854 on or aboUt November 21, 2009; 

b. the overhaul of Boeing 737 main landing gear actuator beam assembly 

part number 6546108-19 serial number 3264 and its installation on 

N376SW on December 12, 2009; 

c. the overhaul of Boeing 737 main landing gear actuator beam assembly 

part number 65-46108-19 serial number 815 on or about January 9, 2010; 

a.nd 

d. the overhaul and rctum to service of Boeing 737 main landing gear 

actuator beam assembly part 65-46108-19 serial number 2565 on .February 

2, 2010. 

3. Airwo11hiness Directive (AD) 2009-09-07 requires that all Boeing 737 part 

number 65-46108 main landing g~ar aclualor beams be overhauled as specified in 

the;; in!)tructions given in Boeing Service Bulletin (SB) 737-32A 1 ~55 Revision 2, 

to detect and correct broken act.mltor beams which could result in loss of control 

of the airplane. 

4. SR 73 7-32Al355 R2 incorporates Boeing Component Maintenance Manual 

(CMM) 32-16-31. CMM 32-16-31 spccifit~s that repair sleeves and bushings arc 

to be made with 17-4 PH stainless steel and cadmium plated in accordance with 

S.tandard .Overhaul Practices.Manual (SOPM) 20-42-05, "Hrlght Cadmium 

Plating." 

5. SOPM 20-42-05 requires that cadmium plating be applied to a minirnurn thidness 

of .0005 inch. ATS had cadmium plating applied to a thickness of only .0004 inch 

on main landing gear retract actuator beam assembly (repair sleeves and bushings) 

serial numbers S I 5, 854, and 2565, and a thickness of only .0003 inch on serial 

nwnbe::r 3264. 

6. SOPM 20-42-05 requires that following cadmium plating parts, fabricated with 

17-4 PH stainless steel be given a hydrogen embrittlement bake for a rniilimurn of 

l :2 hours at 350-400 degrees. ATS had hydrogen embrittlemcnt baking of the 

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listed parts (repair sleeves and bushings) done for only 8.5 hours (serial nurnbcr 

2565)~ 10.4 hours (serial numbers 815 and 854), and 11 hours, 20 minutes (serial 

number 3264). 

7. In conducting the overhaul and repair of the listed main landing gear actuator 

beam assemblies, ATS did not conduct the maintenance in the manner required by 

AD 2009-09-07 and SB 737rJ2Al355. 

8. The SWA Continuous Airworthiness Maintenance Program (CAMP) includes 

airframe manuals, including the Boeing Structural Repair Manual <:U1d Boeing 

Service Bulletins. 

9. In conducting the overhaul and repair of the listed main landing gear actuator 

beam assemblies, A TS did not comply with rhe SW A CAMP. 

10. In conducting the overha·ul and repair of lhe listed main landing gear actuator 

beam assemblies, A TS did not use methods, techniques, and practices acceptable 

to the Administrator. 

11. In conducting the overhaul and repair of the listed main landing gear actuator 

beam asscrnblie~, ATS did not perfonn the work in such a manner that the · 

condition of the aircraft, airframe, engine, propeller or applian<.;e worked on was 

at least equal to its original or properly a]t<.;red wndition. 

III. 

1. By reason of the foregoing facts and circumstances, ATS violatcu tht: following 

sections ofthe Federal Aviation Regulations (14.C.f.R.): 

a. Section 43.13(a) in that, when performing maintenance, alteration or 

prevemivc maintenance required by Part 91 of the Federal Aviation 

Regulations, ATS failed to use the methods, techniques, and practices 

prescribed in the current Manufacturer's Maintenance Manual or Instruc6ons 

for Continued Airworthiness prepared by its Manufacturer, or other methods, 

techniques, and practices acceptable to the Administrator. 

b. Section 43.1 3(b) in that ATS performe.d maintenance, alterati()n, or preventive 

maintenance and did not perform the work in such a manner and use rnaierials 

of such a qualiiy,that the condition of the aircraft, airFrame, aircraft engine, 

propeller, or appliance worked on was at lea.st equal to its original or properly 

altered condition. 

c. Scl)tion 145.205(a) in that ATS perfom1ed maintenance, preventive 

maintenance, o1· alterations for an alr carrier or commercjal operator that has a 

continuous airworthiness maintenance program under part 121 or part 135 and 

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did not follow the air carrier's or {;Ormnercial operator's program and 

applicable sections of its maintenance manual. 

d. Airworthiness Directive (AD) 2009-09-07, in that ATS failed io accomplish 

the required actions in accordance with the AD. 

On or about Jammry 31, 2012, Rcspondcntiiled its Answer. Except as to three 

minor details, Respondent admitted the allegations in Section ff, paragraphs one through 

f<mr, 1 and paragraph eight. Respondent denies all remaining paragraphs in sections IT and 

111 in their entirety. 

The parti~~s cx.chat1gcd discovery requests. Complainant presented Requests for 

Admissions (RF As) in its discovery requests. RF As 2 and 3 asked· Respondent to admit 

the allegations described in Section II ofthc Complaint, parat:,rraph 5 and Respondent did 

not deny the allegations (see i\ttiwhment 1) : 

REQUEST FOR ADMISSION NO.2: 

Admit that ATS had cadniium plating applied to a thickness of .0004 inch on main landing 

gear retract actuator beam assemblies (bushings and sleeves) serial numbers S 15, 854, and 

2565. 

RESPONSE: R~:.~spondtmt stales that information currently known to, or readily obtainable 

by, A TS is insufficient ro enable it to admit or deny this request. 

REQUEST FOR ADMISSION NO.3: 

Admit that that A TS had cadmium plating applied to a thickness of .0003 inch on main 

Janclinggcar retract actuator beam assembly (bushings and sleeves) seri;;.l number 3264. 

JU:SPONSF.: Admitted. 

RF A 9 asked for an admission that the components at issue were made of a certain 

material that subjected them to the airworthiness instructions relevant to this case (see 

Complaint Section 11, paragraph 6): 

.REQUEST FOR ADMISSION NO. 9: 

---'-------·--···-· .... -- 1 

Respondent':> denials referc:nce: the dates stated in paragraphs 2(a) and 2(c) and rhe re:m "repair'' in 2(a). 

Those allegations are indeed erroneous and have been com:dcd in the Second Amended Complainr. 

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Admit that main landing gear actuator beam assernbly part number 65-461 08-19 

(bushings and ~leeves) serial numbers 815, 854, 2565 and 3264 were fabricated of 17-4 

PH stainless steel J 80ksi or above. 

RESPONSE: Admitted. 

RFAs 10, 9, 10 and 11 2 all asked tor admissions that the cornpo11cnts at issue were not 

baked for the required length oftime. Respondent Jailed to deny any of these allegations. 

A. Standard of Review 

A Motion1or Decision pursuant to§ 13.218(!)(5) is, for all inte11t.s and purposes, the 

same as a Motion f()r Summary Judgment under FRCP 56 and is reviewed under the S!llne 

standard. In Re the Matt.Qr of Scott McDougall, Doc. CP&9EA0316 at 4 (1990). Motions 

for Summary Judgment may be decided on admissible evidence that is outside of the 

pleadings, norm~lly presented in declarations or ani davits. In .. Re .the Matter of Horizon A i:r 

Industries, FAA Order No. 96-24 ( J 996). All inferences in the evidence must be draWJ1 itl 

favor of the non-moving party. If the comt determines that the non-moving pany 

demonstrate~, through putatively admissible evidence that some gcm.tinc dispute of fact 

exist~, then the motion should be denied. McDougall. 

Jf. on the other hand, the court deten-nines .no genuine issues of fact exist and the 

outstanding legal issues arc resolved in favor ofrhe moving party's position, then the 

moving party is entitled to a judgment on any such issue as a matter oflaw. lg. 

B. The Evidence lfstablishes at Least-a prima facie Case.3 

The allegations relating to the violations committed can be stunmari?.:ed as follows: 

1. Respondent performed maintenance (overhaul) on 4 different "actuator beams" 

tl1al are components im;talled on Boeing 737 aircraft operated hy Southwest 

·------- 2 

Duplicate numberings resulted from a scrivener's en·or in drafting the discovery requests. 

J See Attacf1mem 2, which summarizes the evidence establishing the violations. 

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Airlines (SW A). The maintenance at issue included the application of cadmium 

plating to. various parts (bushings and sleeves) and then baking these s~c parts 

for a specified period oftjrne. See Attachment 2. 

2. Respondent shc:mld have per.iom1cd the tasks incmioned above in accordance 

with several different docwnents (See Complaint, Section II, paragraphs 3, 4, 5, 

6, and 8, Attachment 2). The instructions at issue are: a) The cadmiw11 plating 

be applied to a minimum thickness of .0005 inch and, since the parls were 

fabricated of 17-4 PH stainless steql 180ksi or above, b) the cadmium plated 

pans be baked for at least 12 hours. (See Complaint, Section II, paragraph 5 and 

6). See Attaclum:nt 3. 

3. Respondent failed to follow the instructions di.scussed above, in that it failed to 

<tpply Lhe cadmium plating to the. appropriate lhick.ness onto the pmts at issllc 

and it tailed to hake the parts tor the full 12 hours. (See Complaint, Section II, 

paragraph 5 and 6). See attachments 4 tbrot~gh I 1. 

All the above allegations arc SllpporLed by documentary evidence, the pertinent contested 

portion~ of which arc appended to this rnorion. Therefore, Complainant has csiablished a 

primafacie case that, if not refuted, should result in atfrnnation of its Complaint. 

C. Respondent has Admitted or Failed to Deny the Fact!; Necessary to Prove the 

Allegations. 

Ifthe facts a'> alleged above are proven, then the violations stated in the Complaint at 

Section III are proven as well. Respondent's Answer admitted the allegations grouped 

above in number 1. It also adm.ittcd rhc allegations grouped in number 2 except that it 

deni~s that SOPM 20-42-05 requires that the cadmiwn plating be applied to a nlirrimwn 

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thickness of .0005 inch or that the baking be accomplished for 12 hours. It denies also that 

it failed to fo.llow those instructions. 

However. in its answers to the R.FAs as described above, Respondent admitted that it 

applied cadmium plating onlo one pan at a thickness below .0005 inch '.md fails lo deny that 

it did so for the other three parts. It also admitted that the pans were fabricated of 1 7-4 PH 

stainless sieel J 80ksi or above (which means they were subject to the 12 hour baking 

requirement} and it fails to deny that it baked the parts for less than the required 12 hours. 

Respondent has not categorically denied any particular fact that is necessary to prove 

the allegations. For 1lris reason, the case is ripe for summary judgment, at least a.o:; to the 

issue of whether the vioJations were committed. See In Re Oamache-Wortman, FAA Order 

No. 2012-4 (2012) (holdiilg that when a party fails to answer a RFA, the i\U may deem the 

failure an i:Hlm.ission, 14 CR 1 ~.220(1), and may grant a motion for decision). 

Accordingly, the AT J should find no genuine issues of fact exist and, under the law 

as stated above, Complainant's Motion for Decision should be granted. 

C. The Administrator's Sanction in this Case Should be Affirmed. 

F A.A Order 21 :'50.313, the FAA's primary enforcement and compliance p<)licy 

source, (sec In re Folsom's Air Service, 2008 WL 4948488 (FAA Order 2008-11)); 

specifics a "moderate to maximum" sanction when repair stations fail to properly perform 

maintenance for air carriers. See Fig, B-3-b(l2). As a L(!l"gc Business Concern (see FAA 

Order 2150.3B, Appendix B-5), Respondent is subject to a fine of up to $25,000 per 

violation. The fine represents four vio1atioos calculated above the median point but well 

within Lhe sanction range. 

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Since the proposed sanction is well withln· the discretionary authority of the 

Administrator, and is neither unusually high or low, it should be aftlrmed. 

CONCLUSION 

WHEREFORE, since there is no genuine issue as to the material facts raised herein 

<.md the FAA is en tided to a judgment as a matter of law all issues presented in the 

Complaint, F M counsel requests that the ALJ grant thls Motion for Decision and enter a 

decision affinning the Administrator's FNPCP i!:i~ucd in this ca~e in its entirety. In the 

alternative, Complaint requests that partial summary judgment be granted; at least as to the 

issue of whether the violation occurred. 

Respectfully suhmitted, 

DATED this 22'1d day of August 

r·-~-

~~.l--=t:-dr-==--'--. -- t}AVTD F~'SHAYNE 

FAA Attorney 

( cu (C. J) -1-:JuiJ&.··'-· 

Karen Davis Huber 

FAA Attorney 

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CERTIFICATE OF SERVICE 

J hereby certify rhat the foregoing Motion for a Decision has been sc!Ved via FedE:x 

overnight delivery to the following: 

Federal Aviation Administration 

800 Independence A venue SW 

Washington, D.C. 20591 

Atln: Hearing Docket Clerk, AGC-430 

Wilbur Wright l3uilding- Sui le 2W 1000 

Honorable Richard Goodwin 

Office of Hearings, M-20 

U.S. Oepaltment ofTransportation 

. 1200 Ntw Jersey A vcm1e, S. F:. 

Washington, D.C. 20590 

Dane B. Jaques, Esq. 

DombroffGilmore Jaques & French, PC 

1676 International Drive, Penthouse 

McLean, VA 221 01 

Dated this 22nd day o:f August, 201 2. 

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dl-aiJh ./1/tJ tr-<-)j 

9 

Nat ie Morrell 

Office ofRegional Coun::;el (ANM·7) 

Federal Aviation Adnrinistration 

1601 Lind A venue S W 

Renton, WA 98057 

(425) 227-2914