j 

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 

, l . .llll P,PR 20 P 3: 00 

Ar, ., ,. '.:' ' , ••.. • • .; I 

. - . 

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 

of Record and hereby submits its Brief on Proposed Findings of Fact and Conclusions of Law for 

the hearing held on January 10, 2012, before the Administrative Law Judge Richard C. Goodwin 

of the Department of Transportation, in Oklahoma City, Oklahoma. On October 21, 2010, the 

Complainant issued a Final notice of Proposed 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) 
Left hand flap has hole 

Right hand flap cracked 

Left hand passenger side window cracked and duct taped 

The Aircraft Condition Notice noted that the items listed "are" considered to be an imminent 

hazard to safety. Operation of the aircraft prior to 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) of the Federal Aviation Regulations, by operating the 

aircraft on July 11, 2009, while failing to address the alleged discrepancies noted by Inspector West 

on the notice, each of which the FAA alleges rendered the aircraft unairworthy as alleged in the 

Complaint. The Agency requests this Court to 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 of the alleged discrepancies listed in the notice, and replacement 

of the seat stops which he had borrowed off two other aircraft for the weekend. (294 Tr. 6-17) 

PROPOSED FINDING OF FACT AND CONCLUSIONS OF LAW 

Oklahoma Skydiving Operated N4682F on July 11, 2009. 

II. N4682F was airworthy when Oklahoma Skydiving Operated it on July 11. 2009 

A. Statutory and Regulatory basis for Airworthiness 

2 
Respondent adopts and incorporates by reference the Agency's position on the Statutory and 

Regulatory basis for Airworthiness contained in its brief on Page 4, paragraph III( A). 

B. Airworthiness Case Law 

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 drain plug that 

had a small leak. The Administrator took the position that the cork was not a proper part and that 

the introduction of the part into the quick drain brought the aircraft out of confonnity with its type 

design. Like the case at bar no evidence of the type certificate or data was introduced at trial. The 

Board stated: 

.... the Administrator has the burden of proving that the aircraft was unairworthy 

by a preponderance of the 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 or other such items in determining the airworthiness of the aircraft. 

Another case involving the Administrator's burden of proof is Administrator v. Opat, 

NTSB Order No. EA-5290 (2007). In this certificate action case, the ALJ presided over a cast in 

which the Administrator proposed a suspension for a pilot who operated an aircraft with the 

landing gear pinned in the down position 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 

3 
Administrator had 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 

Perhaps the most noteworthy is the fact that the Administrator did not introduce 

the type certificate itself into evidence .... 

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

NTSB Order No. EA-4680 (1998), presided over a case in which a turbine outlet temperature 

gauge did not have a red line at 793 degrees C. In actuality, a line was present but had 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 Administrator v. Calavaero, EA 2321, 

5 NTSB 1099, 1101 (1986) stated: 

We agree with the 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" of corrosion, missing screw, or other defect, no matter how minor or 

where located on the aircraft, dictates the conclusion that the aircrafts design, 

construction, or performance has been impaired by the defect to the degree that 

the aircraft no longer conforms to its type certificate. 

1. Duct tape used to temporarily repair the left rear window did not render the 

aircraft unairworthy in violation of 14 C.F.R. 91.7(a). 

The Agency's position regarding repair of the window can be summarized by stating that 

in Inspector Boler's OPINION, the repair was not acceptable to the Administrator. She admitted 

under oath she did not bring into evidence anything that would indicate the methods of repair 

that were acceptable to the Administrator as indicated in the regulations. (145 Tr. 1-1 0) In 

addition, she admitted she did not refer to the Cessna repair manual in regard to what would be a 

proper repair and didn't refer to the type certificate information to determine the airworthiness of 

the aircraft. (108 Tr. 17-20; 109 Tr. 6-22; 110 Tr. 1-10; 144 Tr. 20-22) 

4 
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 not provide any type certificate data to this 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 conform to its type certificate as well as be in a 

condition for safe operation. A word of caution is necessary, however, if this 

concept of airworthiness is to applied effectively in enforcement cases .... 

However, if the condition of the aircraft is such that it would not be considered to 

be in conformance 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 

in the absence of positive evidence concerning the contents of the 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 if she had provided any positive evidence concerning 

the contents of the 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, or performance had been impaired by the defect to the degree that the aircraft no 

longer conformed to its type certificate. There was no evidence presented by the Administrator 

that a window with a crack repaired with duct tape impaired this aircraft. 

Quoting the Board in Thibert: 

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 or other such items in determining the 

airworthiness of the aircraft. 

In the 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's review. (108 Tr. 17-20; 109 Tr. 6-22; 110 Tr. 1-10; 

144 Tr. 20-22) 

5 
Comparing this case to the case in Opat, the Board stated: 

Therefore, the Administrator had 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. 

In the case at bar, the Administrator failed to prove this key element when his staff walked into 

the courtroom because they 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 in the investigation. 

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

was unsafe for flight. 

Counsel for the Agency testifies in his brief that the safety ofN4682F was compromised 

when its broken passenger window was covered with duct tape rather than removed and. 

replaced. In fact, Inspector Boler indicated she did not indicate any safety issues in her 

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 stated pieces of it could come 

loose and hurt he horizontal or vertical stabilizer. This absurd testimony is self-serving and 

carries no weight. Fi,rst, she testified no part of the cracked window was loose. Secondly, 

common sense dictates this light material and the slow speed of the aircraft give no cause for 

alarm. The fact the window required repair does not make the defect such that a safety of flight 

issue arises. 

The overwhelming weight of the evidence indicates the inspectors, both Inspector Boler 

and Inspector Terry, did not believe these alleged discrepancies to be a safety of flight issue. Not 

only did the inspectors not notify the waiting skydiving customers of the unairworthiness of the 

aircraft, they did not return to the location to ensure compliance with the condition notice. 

Another indicator is the fact that Inspector Terry testified he didn't go back to speak to pilot 

David Harbold about flying the alleged unairworthy aircraft. (172 Tr.9-12) He testified he did 

not begin an investigation of the pilot for 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 each particular minor alleged defect could cause a safety of flight issue, but 

failed to provide any evidence to that effect. 

6 
PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Administrator failed to meet his burden to prove the aircraft was unairworthy when 

Oklahoma Skydiving Center operated it on July 11, 2009. The Administrator failed to prove 

either prong of the two-prong test regarding airworthiness. First, the Administrator failed to 

meet his burden in regard to proving the aircraft did not conform to its type certificate because it 

failed to proffer positive evidence concerning the contents of the 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, or performance 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 regard to proving the aircraft was unsafe for flight 

in that Inspector Boler did not testify to the safety of the aircraft accept to say this alleged defect 

made the aircraft no longer conform to its original type certificate design. Inspector Boler did not 

indicate any safety issues regarding the broken window, and she is a certificated aircraft 

mechanic with inspection authority. 

2. The Agency failed not only to meet his burden that the aircraft was unairworthy 

with alleged incorrect seat stops installed, but failed to meet these alleged incorrect 

seat stops were actually installed in the aircraft when it operated. 

Inspector Boler and Mr. Reeves disagreed as to the seat-stops installed in the aircraft. 

Mr. Reeves testified the aircraft had passed numerous 1 00-hour inspections with these particular 

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 on the aircraft in question. ((294 Tr. 16-18; 

300 Tr. 7-8) There is absolutely no evidence to the contrary and Inspector Boler indicates she 

has no evidence to refute that he did in fact install them prior to operations on July 22, 2009. (82 

Tr. 7-18; 91 Tr. 1-6) These facts are ignored in the Administrator's brief. In addition, Inspector 

Boler failed to investigate the type certificate data to determine if in fact the seat-stops were in 

conformity with the type certificate. 

a. The Administrator failed to meet his burden in regard to proving the 

aircraft did not conform to its type certificate. 

Inspector Boler testified under oath that she didn't refer to any type certificate data sheet. 

She instead deferred to her experience and knowledge of those aircraft. (82 Tr. 19-22; 83 Tr. 1-

7 
19) Additionally, she stated she did not provide any type certificate data to this Court for 

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 of caution is necessary, however, if this 

concept of airworthiness is to applied effectively in enforcement cases .... 

However, if the condition of the aircraft is such that it would not be considered to 

be in conformance 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 

in the absence of positive evidence concerning the contents of the 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 if she had provided any positive evidence concerning 

the contents of the 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, or performance had been impaired by the defect to the degree that the aircraft no 

longer conformed to its type certificate. There was no evidence presented by the Administrator 

that a window with a crack repaired with duct tape impaired this aircraft. 

Quoting the Board in Thibert: 

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 or other such items in determining the 

airworthiness of the aircraft. 

In the 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 provide 

this, or any relevant directives for the board's review. (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 had 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. 

8 
In the case at bar, the Administrator failed to prove this key element when his staff walked into 

the courtroom because they 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 in tlie investigation. 

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

was unsafe for flight. 

Inspector Boler testified that the alleged incorrect bolts installed in place of the Cessna 

seat-stops were unsafe, but gave no basis for that conclusion except that they were the incorrect 

seat stops. In addition, she agreed it was possible the aircraft could have flown "hundreds and 

hundreds" ofhours with these bolts installed. (93 Tr. 19; 94 Tr. 1) The additional safety of a 

more stout fastener is completely ignored in regard to whether the bolt installed was safer than 

the Cessna seat stop. 

The overwhelming weight of the evidence indicates the inspectors, both Inspector Boler 

and Inspector Terry, did not believe these alleged discrepancies to be a safety of flight issue. Not 

only did the inspectors not notify the waiting skydiving customers of the unairworthiness of the · 

aircraft, they did not return to the location to ensure compliance with the condition notice. 

Another indicator is the fact that Inspector Terry testified he didn't go back to speak to pilot 

David Harbold about flying the alleged unairworthy aircraft. (172 Tr.9-12) He testified he did 

not begin an investigation of the pilot for 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 each particular minor alleged defect could cause a safety of flight issue, but 

failed to provide any evidence to that effect. 

c. TJte Administrator had no evidence that the operations were conducted with 

the alleged incorrect seat stops installed. 

Inspector Boler testified she had no evidence to refute Mr. Reeves' assertion that he was 

able to install both Cessna seat stops prior to the first operation that morning. (82 Tr. 7-18) (91 

Tr. 1-6) 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Administrator failed to meet his burden to prove the aircraft was unairworthy when 

Oklahoma Skydiving Center operated it on July 11, 2009. The Administrator failed to prove 

9 
either prong of the two-prong test regarding airworthiness. First, the Administrator failed to 

meet his burden in regard to proving the aircraft did not conform to its type certificate because it 

failed to proffer positive evidence concerning the contents of the 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, or performance 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 Boler did not testifY to the safety of the aircraft accept to this alleged 

defect made the aircraft no longer conform to its original type certificate design. In addition, the 

Administrator had no evidence the aircraft was operated without the correct seat-stops installed. 

1. An alleged screw protruding through the lower skin of the left flap did not render 

the aircraft unairworthy in violation of 14 C.F.R. 91.7(a). 

Falling under the category of discrepancies as cited in Cava/aero, this minor discrepancy 

causing aircraft to longer conform to its type design is not supported by the evidence. In fact, 

Inspector Boler testified that it indeed made the aircraft no longer conform to the type certificate, 

but when asked to support this position, she had not a shred of evidence to support it; not a type 

certificate, no structural repair manual, no Cessna maintenance manual. With all these resources 

at her disposal, she just had her 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 not review the type certificate, type design or data 

sheets, structural repair manual for the aircraft, Cessna maintenance manuals to determine if this 

alleged defect brought the aircraft out of its conformity to the original type design. (97 Tr. 22; 98 

Tr. 1-22; 99 Tr. 1-5) In fact, she further stated she did not provide any type certificate data to 

this Court for Review. In fact she indicated she didn'tutilize a maintenance manual, structural 

repair manual or any other resource. (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: 

10 
.. 

To be airworthy an aircraft must conform to its type certificate as well as be in a 

condition for safe operation. A word of caution is necessary, however, if this 

concept of airworthiness is to applied effectively in enforcement cases .... 

However, if the condition of the aircraft is such that it would not be considered to 

be in conformance 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 

in the absence of positive evidence concerning the contents of the 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 if she had provided any positive evid~nce concerning 

the contents of the 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, or performance had been impaired by the defect to the degree that the aircraft no 

longer conformed to its type certificate. There was no evidence presented by the Administrator 

that a window with a crack repaired with duct tape impaired this aircraft. 

Quoting the Board in Thibert: 

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 or other such items in determining the 

airworthiness of the aircraft. 

In the case at bar, Inspector Boler admitted she did not review the type certi:Ucate date 

sheet, or any maintenance manuals during her investigation. In addition, she failed to provide 

this, or any relevant directives for the board's reyiew. (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 had 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. 

In the case at bar, the Administrator failed to prove this key element when his staff walked into 

the courtroom because they failed to prove the aircraft failed to conform to its type design, as 

11 
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. 

The inspectors opined of all types of catastrophic failures that could occur as a result of 

this alleged minor defect to include the following: jamming of the flap, asymmetrical flap, 

controllability issues, etc. (53 Tr. 18-22; 54 Tr. 1-8) In fact, Inspector Boler could not determine 

at trial which part of the screw was protruding from the flap based on the evidence brought to 

this Court. (95 Tr. 9-22; 96 Tr. 1-13) The condition notice stated, "Left hand flap has hole." At 

trial, it was now a screw that was protruding from the flap, but she couldn't recall whether it was 

the head or tip, and could not tell from the picture presented by the Administrator as evidence. 

Inspector Terry opined to the effects of a "loose screw." (157 Tr. 22; 158 Tr. 1-5) 

There was no evidence presented of any loose screws in this case. The overwhelming 

weight of the evidence indicates the inspectors, both Inspector Boler and Inspector Terry, did not 

believe these alleged discrepancies to be a safety of flight issue. Not only did the inspectors not 

notify the waiting skydiving customers of the unairworthiness of the aircraft, they did not return 

to the location to ensure compliance with the condition notice. Another indicator is the fact that 

Inspector Terry testified he didn't go back to speak to pilot David Harbold about flying the 

alleged unairworthy aircraft. (172 Tr.9-12) He testified he did not begin an investigation of the 

pilot for 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 each particular 

minor alleged defect could cause a safety of flight issue, but failed to provide any evidence to 

that effect. 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Administrator failed to meet his burden to prove the aircraft was unairworthy when 

Oklahoma Skydiving Center operated it on July 11, 2009. The Administrator failed to prove 

either prong of the two-prong test regarding airworthiness. First, the Administrator failed to 

meet his burden in regard to proving the aircraft did not conform to its type certificate because it 

failed to proffer positive evidence concerning the contents of the type certificate data and the 

12 
particulars in which the aircraft in question differs from that data. Secondly, the Administrator 

failed to prove the aircraft's design, construction, or performance 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. 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 aircraft was unairworthy with alleged 

cracks in the lower skin of the right flap. 

a. The Administrator failed to meet his burden in regard to proving that the 

aircraft did not conform to its type certificate. 

Inspector Boler testified 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 

statement that there were minute stress fractures surrounding several rivets in the right flap. The 

one time Inspector Boler indicates she reviewed the type certificate data sheet, was the time -it 

was of no help to her: in determining date regarding a stress fracture in the flap. (120 Tr. 2-3) 

She did however indicate she had not provided to this Court as evidence. The Administrator 

makes general assertions in the brief on page 20, paragraph 4(a), "When an aircraft has 

unresolved discrepancies, it is not airworthy. Is counsel purporting that a rip in the leather seat 

of the aircraft renders it unairworthy? Certainly not. The two-prong test still applies to 

airworthiness investigations. She also admitted she did not review the type certificate, type 

design or data sheets, structural repair manual, or Cessna maintenance manuals for the aircraft in 

order to determine if this alleged defect brought the aircraft out of its conformity to the original 

type design. (1 03 Tr. 5-22; 104 Tr. 1-2) In addition, she stated she did not provide any type 

certificate data to 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 of caution is necessary, however, if this 

concept of airworthiness is to applied effectively in enforcement cases .... 

However, if the condition of the aircraft is such that it would not be considered to 

be in conformance with the type certificate, yet it is not clearly unsafe for flight, 

13 
then the NTSB will probably not sustain a finding that the aircraft is not airworthy 

in the absence of positive evidence concerning the contents of the 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 if she had provided any positive evidence concerning 

the contents of the 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 Administrator to prove that the aircraft's design, 

construction, or performance had been impaired by the defect to the degree that the aircraft no 

longer conformed to its type certificate. There was no evidence presented by the Administrator 

that a window with a crack repaired with duct tape impaired this aircraft. 

Quoting the Board in Thibert: 

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 or other such items in determining the 

airworthiness of the aircraft. 

In the 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 provide 

this, or any relevant directives for the board's review. (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 had 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. 

In the case at bar, the Administrator failed to prove this key element when his staff walked into 

the courtroom because they 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 in the investigation. 

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

was unsafe for flight. 

14 
Inspector Boler testified to possible safety concerns regarding these cracks in the flap, but 

would not proffer any examples. Inspector Terry, again, conjured up images of catastrophic 

failures associated with these minute cracks that are normally repaired with a skin patch. None 

of the inspectors could point to any resources to determine if these cracks were out of tolerances. 

Not one resource. This Court should conclude there are none or they would have introduced 

them as evidence. Again, this case is based on opinion. 

The overwhelming weight of the evidence indicates the inspectors, both Inspector Boler 

and Inspector Terry, did not believe these alleged discrepancies to be a safety of flight issue. Not 

only did the inspectors not notify the waiting skydiving customers of the unairworthiness of the 

aircraft, they did not return to the location to ensure compliance with the condition notice. 

Another indicator is the fact that Inspector Terry testified he didn't go back to speak to pilot 

David Harbold about flying the alleged unairworthy aircraft. (172 Tr.9-12) He testified he did 

not begin an investigation of the pilot for 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 each particular minor alleged defect could cause a safety of flight issue, but 

failed to provide any evidence to that effect. 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

The Administrator failed to meet his burden to prove the aircraft was unairworthy when 

Oklahoma Skydiving Center operated it on July 11,2009. The Administrator failed to prove 

either prong of the two-prong test regarding airworthiness. First, the Administrator failed to 

meet his burden in regard to proving the aircraft did not conform to its type certificate because it 

failed to proffer positive evidence concerning the contents of the 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, or performance 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. 

IV. The Agency failed to meet its burden that Oklahoma Skydiving Center violated Section 

91.405(a) when it allegedly failed to have the aircraft inspected as prescribed in Subpart E. 

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and did not between required inspections .... have discrepancies repaired as prescribed in 

part 43 of this chapter. 

Respondent asserts at no time was the aircraft operated in an unairworthy condition. As 

such, all inspections were performed in accordance with Federal Aviation Regulations as 

outlined in part 43. Mr. Reeves testified he ferried the airworthy aircraft to Riverside Airport in 

Tulsa, Oklahoma for repairs on Monday, 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 on July 17, 

2009. (299 Tr. 1-22; 200 Tr. 1-4) Lastly, he testified that all ofthe logbooks for the aircraft 

were in possession of this mechanic, which was collaborated by Inspector Kout during his 

testimony. Inspector Kout indicates all the maintenance work that Inspector Boler indicated 

made the aircraft unairworthy was repaired on or before July 17, 2009. (212 Tr. 4-6) The 

Administrator brings up the fact there is no indication the seat stops were repaired until July 24, 

2009 during the 100-hour inspection. (Ex. A-12). (214 Tr. 4-9). Again, the Administrator 

ignores uncontroverted testimony that the seat stops had been replaced with borrowed ones on 

July 11, 2009. Mr. Reeves again testifies he has new ones put in at the 1 00-hour inspection so he 

can return the ones he borrowed. (300 Tr. 9-22; 301 Tr. 1) Mr. Reeves was not able to update 

the logbooks on July 11, 2009 regarding the borrowed seat-stops because he was not in 

possession of the logbooks. All repairs to the aircraft have been duly noted by the qualified 

mechanic who made the repairs. 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

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 

inspection prior to flight. All subsequent repairs were made and all repairs duly noted by the 

mechanic performing the inspection as testified to by Inspector Kout. (212 Tr. 4-6). The 

replacement of the borrowed seat stops with the new seat stops was performed at the 1 00-hour 

inspection and noted in the logbooks. ( 210 Tr. 22; 211 Tr. 1-22; 212 Tr. 1-6) 

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V. The Agency failed to prove Section 91.13(a) was violated when, as the operator of 

N4682F, Oklahoma Skydiving Center. acted in an allegedly careless and reckless manner 

so as to endanger the life or property of another. 

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 

inspection prior to flight. As such, there is no basis for a Section 91.13(a) violation. 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

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 

inspection prior to 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 of a condition notice is not dispositive of the actual discrepancies noted and 

whether it would factually render the aircraft unairworthy. As such, the Complaint, if all 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 of the evidence, that the aircraft 

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

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

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. It makes no factual 

claim that it indeed was unairworthy, therefore, the Administrator's claim must be denied for 

failure to state a claim for which relief may be denied. 

VI. PENALTY 

Respondent asserts there was no violation of the federal aviation regulations in this case and 

that the aircraft in question was only operated in an airworthy condition. As such, no penalty should 

be assessed. 

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VII. PRAYER 

WHEREFORE, the Respondeitt requests that this Court find that the Administrator failed to 

meet its burden of proof showing by a preponderance of the 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 of April, 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 

18 . 
LIST OF CITATIONS 

Administrator v. Thibert, NTSB Order No. EA-5305 (2007) 

Administrator v. Opat, NTSB Order No. EA-5290 (2007). 

Administrator v. Frost, NTSB Order No. 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 of Respondent's Brief of Proposed Findings 

of Fact and Conclusions of Law; Closing and Snmmation, have been sent this day by 

CERTIFIED MAIL - RE11JRN RECEIPT REQUESTED, and via First Class Mail, to: 

FAA 

800 Independence Ave., S. W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk; AGC-430 

Wilbur Wright Building - Suite 2W1 000 

I hereby certizy that a copy of Respondent's Brief of Proposed Findings of Fact and Conclusions 

of Law; Closing and Summation, have been sent this day by CERTIFIED MAIL- RE11IRN RECEIPT REQUESTED, to: 

Gregory S. Lander 

Attorney, Safety Enforcement Branch 

Office of the Regional Counsel 

Southwest Region 

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 Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

202.366.2139 Attorney-Advisor 

202.366.5121 Legal Assistant 

202.366.7536 Fax 

Bret A. Glenn 

20