# u.s. DEPARTMENT OfTRANSPORTATIR

# E

# cEI 

# vED Office of Hearings Washington, D. C. 

# FEB 252014 HEARING DOCKET**--------------------------------~~~** 

### The liberty Foundation, Inc. FAA DOCKET NO. 2012-0477 (EIR 2011-GL-03-0070)

(Civil Penalty Action) Hon. J. E. Sullivan, Administrative Law Judge

RESPONSE TO FAA'S MOTION TO EXCLUDE 

### Respondent, The Liberty Foundation, Inc. (Liberty), herewith responds to FAA's
Motion To Exclude certain testimony. As we show below, FAA's Motion is not well
taken and should be denied in its entirety. AsTo Raymond Fowler: FAA's motion suggests it is somehow unfairly surprised or disadvantaged by the
comment in Liberty's Motion To Continue (based on Mr. Fowler's upcoming deployment
to Afghanistan) that Mr. Fowler may be called upon to testify in response to inaccurate B-17 testimony by FAA witnesses. As Liberty has noted a number of times in its various filings it is, by virtue of its status as Respondent, necessarily in a reactive position. Its trial testimony will, to some degree, depend on the testimony and evidence presented by FAA in its direct case. Liberty properly and timely responded to FAA's Motion For Summary Judgment including, interalia, 

### Mr. Fowler's Declaration.

### Liberty never had an intention to call Mr. Fowler as an expert witness in its "direct case," but given the inaccurate testimony of some of FAA's so-called experts as disclosed in FAA's Motion For Summary Judgment, Liberty determined it may need Mr.
Fowler's testimony on B-17 technical issues. 1


### As To Mr. Underwood: Mr. Underwood was properly and timely disclosed as a potential witness and his potential testimony was described on October 14, 2013, in response to FAA's limited interrogatories that he would "describe the process of replacing the tanks and the work performed/materials utilized in the process as well as his observations of the work performed on the #1 tank in June, 2011." (Exhibit A hereto). Liberty noted Mr.
Underwood's testimony might be expanded and FAA had two months after this
disclosure to take Mr. Underwood's deposition and chose not to do so. It is specious for
FAA to claim it is somehow surprised by Mr. Underwood's Declaration attached to Liberty's Response To FAA's Motion For Summary Judgment. Moreover, FAA deposed
Mr. Schneider, Mr. Fowler, Mr. Norville, and Mr. DeJoseph on April 30

- May 1, 2013, during which Mr. Underwood's name was prominently mentioned by Mr. Schneider and
Mr. Fowler as someone who had a substantial role in the project to change the fuel tanks from bladder to aluminum and who was also present during the repair to the #1 fuel tank in June, 2011. Notwithstanding this information, FAA declined to depose Mr.

1 The parties have agreed that Mr. Fowler's testimony preservation deposition will be on March 3, 2014. Liberty would have no objection to FAA examining Mr. Fowler at that time on the contents of his Declaration. Thus, it is difficult to imagine how FAA can be prejudiced.
STUART A. GOLDSTEIN, P. A. 7300 North Kendall Drive, Suite380, Miami,FL 33156 

### 2 T: (305) 670--1222 F: (305) 400-0685 EMAIL: §Jj_!f\FIJflOLDSTElNPA.®ATT.NET

### Underwood or request an enlargement of time to do so. FAA cannot now complain it is disadvantaged by what may be convincing testimony from Mr. Underwood. Asto Mr. Schneider: FAA's arguments regarding Mr. Schneider are the most troubling. FAA began investigating Mr. Schneider almost three years ago in mid-June, 2011, as a result of the unfortunate accident on June 13, 2011. FAA revoked Mr. Schneider's mechanic
certificate on an emergency basis on August 22, 2011, in a nine page, three Count, 24 paragraph Emergency Order of Revocation. Interrogatories, requests for production, and requests for admissions were accomplished in that case and, as noted, Mr. Schneider was deposed in the instant case. For the FAA to suggest it is surprised by
Mr. Schneider's denial of its assertions is fanciful.2


### If FAA is claiming the Fowler, Underwood, and Schneider Declarations should be excluded in their entirety, any such claim is misplaced and inappropriate. Liberty had
every right under the Agency's Rules and the Federal Rules of Civil Procedure to attach
Declarations to its Response to FAA's Motion For Summary Judgment that raise genuine disputes of material facts. That is the purpose of a response to a motion for
summary judgment. Each of these Declarants was previously identified as a potential witness and FAA deposed them (except for Mr. Underwood whom it chose not to depose). There is nothing improper in any of the Declarations attached to its Response To FAA's Motion For Summary Judgment. All of the content of the Declarations is fact

2 By making these comments, Liberty does not waive its objection to FAA's claim that the assertions in the Schneider Complaint are established. Liberty continues to maintain the settlement in that case is inadmissible in the instant case for that purpose. STUART A, GOLDSTEIN, P. A. 7300 North Kendall Drive, Suite 380, Miami,FL 33156 

### 3 T: (305) 670-1222 F: (305) 400-0685 EMAIL:**_§_TUA_fiT\ill.Ul$If:JNP_A_!~"6_TT.['l_!;I_**

### based on 

## !irl?tb<l_IJQ knowledge of the Declarants, unlike that of FAA's affidavits. Indeed
the quoted excerpts on pages 3-4 of FAA's Motion are fact-based assertions, not opinions of law. FAA does not and cannot show it was misled or prejudiced by any of the Declarations. The Referenced Pre-Hearing Date Was Canceled: The following chronology is pertinent: -+By Order of September 24, 2012, the Court Set Litigation Dates And Procedures and established January 31, 2013, as the deadline for both parties to finish taking supplemental depositions and responding to and serving answers to all supplemental discovery requests. -+By Order dated January 22, 2013, the Court granted Liberty's Motion To Extend Expert Witness Information, etc., and established February 28, 2013, as the new general discovery exchange deadline; April 30, 2013, as the new deadline for taking depositions and to respond to any/all discovery requests and to finish taking expert depositions; and June 28, 2013, as the new deadline for the parties to finish taking supplemental depositions and responding to and serving answers to all supplemental discovery requests. -+On July 31, 2013, FAA served its extensive Amendment To Complaint. -+On August 6, 2013, Liberty filed its Motion To Stay Or Revise Scheduling Order, etc., by reason of the extensive Amendment To Complaint. +On August 27, 2013, following a telephone conference hearing, the Court granted Liberty's Motion in part and issued its Order Cancelling November 2013

STUART A GOLDSTEIN, P. A. 7300 North Kendall Drive. Suite 380, Miami,FL 33156 

### 4 T: (305) 670-1222 F: [305) 400-0685 EMAIL:**.$.H!.6BIQ9J,J)8Tf[T:-JJ:'A@_6_II:c_~_J;.I**

### Hearing And Granting/Denying Other Relief. The previous deadlines were canceled (paragraph 2) and re-set making December 20, 2013, the deadline to complete additional limited discovery (paragraph 5) and setting January 31, 2014, as the deadline for Liberty to respond to FAA's Motion For Summary Judgment. Therefore, because of the Amendment To Complaint and the discovery that followed, the February 28, 2013, 

### deadline was canceled or, at the very least, it was no longer a "pending" deadline. The February 28, 2013, 

### deadline was never re-set. It


### makes no sense for FAA to argue the February 28, 2013, 

### date remained active when the Court was allowing discovery to continue for almost ten more months, until December 20, 2013. 

### In addition, the case was not even at issue on February 28, 2013, 

### because of the Amendment To Complaint, to which Liberty filed its Answer on August 23,2013. 

### No Prejudice To FAA: liberty has not asked a single question in trial of any of these potential witnesses. If and when one of these witnesses testifies improperly at trial, FAA can make an objection. FAA claims in the penultimate sentence of its Motion on page 5 that by Liberty's failure to disclose "any expert or opinion testimony by Fowler, Underwood, or Schneider, Respondent has denied the FAA any ability to depose these individuals, or otherwise conduct discovery, concerning their opinions." This is demonstrably wrong.
As noted above and as shown in Exhibit A hereto, the description of Mr. Underwood's testimony clearly shows the areas in which he would testify. As to Mr. Schneider, he testified in his deposition regarding B-17 handbook references that permitted Liberty to

STUART A. GOLDSTEIN, P. A. 7300 North Kendall Drive, Suite380, Miami,FL 33156 

### 5 T: (305) 670-1222 F: (305} 400-0685 EMAIL: STUARTGOLDSTEINPA@ATT.NET

### perform the maintenance at issue. See, Exhibit B hereto, pages 35-38 of Mr. Schneider's deposition which references Advisory Circular 43.13, Section 8-32. FAA
counsel specifically asked Mr. Schneider for his opinions. One example follows, and there are others in Exhibit B. Q: "Do you believe that the work that was done on the fuel tanks for this aircraft was in compliance with Part 43?"
A: "Which work specifically? Are you referring to the welding?" 

### Q: "The entire process."
A:**"Yes.~~** 

### FAA had every opportunity to question Mr. Schneider about his conclusions and opinions and did so to the extent it desired. Regarding Mr. Fowler, we have previously discussed these issues as they relate to him and need not repeat them here. 

### FAA Brings This Motion With Unclean Hands: Liberty took FAA "expert" Don Dodge's deposition on May 1, 2013, and asked this specific question at page 14 (Exhibit C hereto): Q: "What is your understanding of the subject matter that your are going to testify about in this case if you are called as a witness?"
A: "The determination of whether or not a major or minor alteration or repair was made on the fuel tanks."

Yet in his Affidavit in support of FAA's Motion For Summary Judgment, Mr. Dodge went
far beyond an opinion of major/minor alteration/repair. By way of examples, see paragraphs 25, 27, 28, 29, 30, 32, 33, 34, and 35 of Mr. Dodge's Affidavit (Exhibit D

STUART A. GOLDSTEIN, P. A 7300 North Kendall Drive, Suite 380, Miami,FL 33156 

### 6 T: (305) 670-1222 F: (305) 400-0685 EMA!L: $J_I,J£'J3IQ9l-J).£fEINJ:6.@_l.fl.NET

### hereto) in which he expresses his opinion on other subjects including the airworthiness of the aircraft after the February, 2011 maintenance, the airworthiness of the aircraft after the June, 2011, maintenance and that welding was improperly performed. Finally, although Liberty views FAA's instant Motion as not well taken, Liberty is prepared to make Mr. Underwood and Mr. Schneider available to FAA for deposition on any conclusions or opinions they may have set out in their Declarations. The trial in this
matter is more than two months hence, so there is ample time for FAA to conduct said depositions if it desires to do so. Respectfully submitted, STUART A. GOLDSTEIN, 

### P. A. 

### 7300 North Kendall Drive, Suite 

### 380 Miami, FL 

### 33156 Tel: 

### (305) 670-1222 Fax: 

### (305) 400-0685 Email: stuartgoldsteii:JQ_a**@_e~tt.IJ~t**

### By:4M,JAJ'L-f'~~~q_::::~----­ 

### Stuart A. Goldstein Attorney for Respondent

STUARTA GOLDSTEIN, p_ A. 7300 North Kendall Drive, Suite 380, Miami,FL 33156 T: (305) 670-1222 F: (305) 400-0685 EMAIL:**~Ili_E<,!}IQ.Q!.,_DSTEINPA0£8TT.Nt;I** 

### 7

## C!::fiTlfiCATE**Qf~ERVICE**



### February, 2014, as setforth below: Christopher R. Stevenson, Esq. Office of the Regional Counsel Federal Aviation Administration 

## 0. Box20636 Atlanta, GA 30320 By Facsimile (404) 305-5223 and regular U. S. Mail and that an original and one copy was served upon: Hearing Docket Clerk, AGC-430 Wilbur Wright Building, Suite 2W1 000 Federal Aviation Administration 800 Independence Avenue, S. W. Washington, D. C. 20591

and that a copy was served upon: Honorable

## J. 

## E. Sullivan Office of Hearings, M-20 S. Department of Transportation 1200 New Jersey Avenue, S. 

## E. (E11-31

### O) Washington, D. C. 20590 By Facsimile: (202) 366-7536 and regular U. S. Mail

STUART A. GOLDSTEIN, P. A. 7300 North Kendall Drive, Suite 380, Miami,FL 33156 T: {305) 670·1222 F: (305) 400-0685 EMAIL:**§J_IJ_{\_B_l_QQ!o.J)_§J£\~li:~H:Y.b_TT.NET** 

### 8

### •.L

airworthy work performed, Sehnsld!f!r was done in a manner which would have Administrator as described in Mr. Schneider's deposition 

### conversations Inspectors Miller DavidAlderman. 

### In addition, 

# "•""i"·"' was 

### prepared by professional maintenance providers who 

# ""'"'""rwi.rm> return to sei'Vice. 

### 2. A maintenance entry was made 

### in 

### the aircraft's discrepancy 

### leg book 

### which was kept 

### in the aircraft and wilich was destroyed in fire. 

### This log entry cm1forrmr'rl 

### to t11e o! 

### 14 CFR ,IJ, 

### copy of the discrepancy log form has been provided 

### to response to 

### Complainant's limirted 

### Request For Production. methods, techniques,**th~?** 

### Administrator. The had a



### rnanner ln whlch were not oi

### taken h"!nr"' 

### these discovery would not be**ne<~essaly** 

### R that the depositions**""'"~'"ih<:.rl** 

### 9. performed and 10. There is no Interrogatory 10**rm~>in"'** 

### were 

## w"'"'" knew whai amendments, additional

on the grounds 

### it is in amendments to complaint remain valid the



### ·11. Respondent objects to Interrogatory as invasive of the work product privilege and has not made a determination, other than as previously as to which witnesses H will call and their expected testimony. Without waiving such objections, and withollt limiting !heir testimony in any way 

### by thr;, following descriptions, Respondent states it INili 

### likely call Rodney Schneider as a 

## •.rvit'"''"'" to testily as to the log entry in the discrepancy log book as well E!S 

### the work he and the matters discussed in ills deposition: Respondent 

### 11, 1 (.John Hess and Bud Sittig), to txJOk prior to tile flight in 11' 1;

### October, as set forth nRlnw 

### Christopher R. Stevenson, Esq. 

### 011ice of tile Rogronal Counsel FederalAviationAdministration 

### P 0. Box 20636 

### Atlanta. 

### By (404) 305-52:23 and regular U. 

### served on 14th day

GOL.DSl'EIN 

### P. A. 

### Suite 380

### Rodney Sdmeider 

## rII 

### Re: Liberty Foundation AprilJO, 2013

I**~IR.** GOLDSTEIN: Chris, do you want to have I 

### Q. fhis mnlntemtnct' entryreferences .\tlvisory 2 the C<lUrt retxJrter put the same kind ofstickers 2 Circular4313, Section 8to32. Did you review that 3 justm lt Is clearit is from the deJX>sition? 3 ;uhisory c-ircular '"hile thi1 wurk wus being Uone? 4 tGovernment Exhibit 7was mnrkeJ for .j A. 

### y<S. 

### rread it. 5 iJ.entiticathm.) 5 Q. Did you also look atthe B-17 erection and 6 Q. (By :\lr.Stevenson) ?<low, the Exhibit 7, 6 maintenancemanual? 7 what is E•hibit7? 7 

### A. Yes. 8 

### A. ltappears to be a photocopy ofportions 8 Q. Whatis the 3-17 maintenance and erection 9 ofa logbook. 9 manual? 10 Q. And iiyou want to tum to tile fourth page 10 

### A. It is one ofthemaintenance manuals for II ofthat, there is a February 14,ZOII, entry. What is II the airplane. 12 this entry? 12 Q. '\\'hen you say it is one ofthe maintenance IJ 

### A. This is the entry for the fuel tank work. 1J manualt for the airplane,whatare the other 14 Q. When this says full tanks are made of 14 maintenante manualsfor the airplane? IS aluminum sheet, i 100-1/2 hard,what is that**referrin~** 15 

### A. Field service manual, structural repair 16 to? 16 manual. Those are the main ones for the airframe. 17 A. That's the alloy ofthe aluminumthey were 17 Q. Did any

## orthose manuals des.:ribe the work 18 manufactured from. 18 that you did orthatwas done with theweldingon 19 Q. Do you know whatalloy was used for the 19 these tanks? 

### 20 new ple<es weldedonto the tanks? 20 

### A. Notwith the welding, no. 

### 21 

### A. No, I don't recall. 21 Q. A.re you awareofany maintenance manual of 22 Q. At the limeyou madethlsentry,didyou 22 anysortthatdescribes how to do this? 

### 23 know what they weremadeoutof? 

### 2J A. No. 24 A. I had known at one time when they were 24 Q. Areyou awareofany instructions for 2S doing the welding, but Icouldn't tell you the 

### 25 continued airworthiness thattellyou how to dothis Page 34 Page36 I numbers. I weldingjob? 2 Q. Do you knowifitwas the same as the 2 A. No. 3 sbeU? 3 Q. Do you believe thatthework that was don< 4 A. Ican't recall. 4 on thefuel tanks rorthisaircraft was in compliant< 5 Q. Did you have to make anyadjustments to 5 with Pari43T 6 the bose, various bose fittings ill order to bookthem 6 

### A. Which work specifically? Are you 7 up to tho new welded-on fitlibgs? 7 referring to the welding? 8 A. No, sir. 8 Q. Theentireprooe.,, 9 Q, Did you ataoy point in lime know wbaltbe 9 

### A. Yes. 10 'COmposition oftbe new fittings thatwere welded ont 10 

### Q. Why doyou thinkthat? II tbe shellwen? II A. Again, from talkingwith the Daves and 

### u A. 1am sure it was mentioned, but I don't 12 also reading the sections. lJ recall it. IJ Q, What do you mean when you say the 14 Q. Do you rememberifit was the same kind of

# ·~ sections? 15 aluminum .at the original shell? 15 A. The sections l have referenced in the 16 

### A. Ican't recall. 16 signotT. 17 Q. You mentioned talkingaboutwhat sort of 17 

### Q. The advisory circularor maintenance 18 papemorkwas required witb the Daves, correct? 18 manual? 19 

### A. Yos. 19 A. Advisory ctrcular. 20 Q. Did you lolk about theua<t ianguagt thai 20 Q. What in the advisory circular led you to ll youwere going to use in this entry? 21 believethi< was in accordan<ewith Part43? 

### n A.**Y~s.** 2l 

### A. Ican't tell you specitlcally. 

### 2J Q, How much ofthis languajie Uidyou talk 23 Can we take aquick break? 24 about during tbatconference call? 

## u !Recess from 10:08 a.m. to 10:10 a.m.) 25 A.**~lost** ofit. 25 Q. (By Mr, Stevenson) At the time thatyou 

### Page 35 

### REGENCY-BRENTANO,INC. Ill (Pages 34 to 37)

# ) Rodney Schneider [n Re: Liberty Foundation April .30, 2013

I 

## z J**~** 5 6 7 8 9 10 11 12 

### u 14 15 16 17 18 19 20 21 22 

### 23 24 25

I 2 3 4 5 6 7 8 9 10 II 12 13 14 IS 16 17 18 19 20 21 

## u 23 24 25 madll:' this maintenance entry, how did you know what 1 ,\. Cullen wou!J know. kind ofaluminurn the shell was made nutor? 2 Q. :'<low, I would like to askyou aboutJune ol 

### A. We gor tknt from the Boeing prints. J ZtU L .\m I correct in saying that there was am Q. l:tm sorry, could you be more precise\\hat 4 in<idenlin Juneof2011 when one ofthese fuel tanlc you !ttean by Boeing prints? 

## s started leaking? 

### A. Engineering drawings. 6 

### A. Yes. Q. Where did you get those drawings? 7 Q. Canyou teU me about that. 

### A. Iam not sure where they got them from. 8 A. Just from what Iknow. the airplane was in CuJien has aset**ofB~**J7drawings, engineering prints. 9 Aurora for atour weekend and Igota phone call from Q. So did you get them from \fr. t.Inderwood! 10 Cullen saying he had gotten a phone call we had a fuel A. 

### rtlid not actually possess them. II leak on one ofthe tanks and we probably needed to go Q. Okay. 12 up and look at it to see what was going on. A. He and Italked about it in his otlice, IJ Q. Did you,in fact, go and look atit? went overthe prints. He actually did mostofthe l.t 

### A. Yes. we did. research on what the materials were and what would be 15 Q. Is Hwe11 you and )tr, Underwood? appropriate to weld them together with. 16 A. Yes. He and I flew up in hisT-6. Q. So woutd it be fair to say itwas 17 Q. And whatdidyouobsene about tbe fuel :\r(r. (inderwood who decided whatmaterials to use and 18 leak? whatwelding materials and aluminumto use? 19 A. When wegot there, they had the lower A. Probably he and also possibly consulting 20 stress panel ofTthe airplane sowe could look at the with CobbFabricators to do the**wel~ing.** I am not 21 tank and we put a little bit offuel in the tank to sure what the interaction was there. 

### 22 seewhere itwas coming outof, discovered a crack in Q. But you didn'tmake thatdetermination. 23 the weld roughly 5 inches long, maybe 6. A. No. 24 Q. In which ofthefuel tanks was this? Q. You said thatthere was a group ofpeople 25 

### A. No. J, main. Page38 Page 40
whopbysically removed the tanka !'rom tbe

-- I Q. New, which tankil1 theNo.1 tank,justto A. Yes, sir. 2 be clear? Q. Otherthanyourself, wbo wa• involved in 3 A. There are three tanks in the wing, in each that?**~** wing. No. I main tank is between No. 1and 2in the A. We have several volunteersthathelp us 5 cells.jus1 afterthe front spar. Behind it isNo.2 out. My father helped out. We have three other guys 6 feed tank. And inboard ofNo.2 is No.2 main tank. that volunteer through the organization that helped 7 Q. And is 1 and2 the left wing orthe rUght outwith it. They help outwith themaintenanceon it 8 wing? in the wintertime. Doyou \Yant their names? 9 A. I and 2ofthe left wing. Q. Yes. 10 Q.**~ow,** you said that there was a erack in A. My father is Richard Schneider. Jim II the ""'eld. Whatnactlydoyou mean by crackin the Lawrence is one. Keith Youngblood is oneand Chris ll weld? I am sorry. \'+/hen )'OU say in the weld, is Whiting is another one. And Chuck Giese is another 1J that- olu1y, let's go back and look at one ofthese person who volunteers with the airplane. 14 pictures. \\'hen I look at- vt·hich- was itone of 

### Q. How were tho shells transportedto the 15 the slots? welding comp•ny? 16 A. It tHISthe endcap, the bottom edge ofthe 

### A. Iwusn 1 t there when they were removed to 17 end cap. the we!Jing company. I think they tvent on a trailer. 18 Q. Okay. So "·hen you say the end cap, is 

### Q. Did Mr. l'nderwood arrange for thai? 19 that the end thai was welded shut that comeli rrom the /\. He and KeHh got together and diu the 20 monuracturer welded shut by Boeing oris dun the ntw tnO\'ing. I am nGt sure \\ho Jid the movitlg, though. 2l Wt:![d? 

### Q. Did the welding company chargefor their 22 A. This would have been the new we!d. And work? 23**~vhen**you say**-~** \"hen ll<lok atone ofthese welJings, A. rdon't know. 24 Iwould see**a~~** there is going to be two pieces of Q. Oo you know who would know that? 25 metal and then there is going to be !hewelding 

### Page 39 Page-II 

### REGE:"'CY-BRENTANO, INC. ! ! (Pages 38to41)

# ••

•

' 

### non**llod~;e** 

### In lle: Uhertj· Fmmda!i' !13 !

\. '-\un: J**Y~:.-.** 

# i 2 l Q. So th-e lir'it tim!!.' pm lHI\e**;,;e-~n** this 3 

# ' 1IMumcnt.**OJ:fli~** ..itlnn £\blbit 12. io,ju!ot a**mom~:nt** :t';itO. 

# ' 5 .I. \ '-'S 5 6 Q. \\hat is**~1mr** understanding oftile subject 6 7 matt-er that**~nu** iU'e**~oing** to**t~stify** about in this 7 8 ease if)'OU are called as a\\itflfls'! 8 9 ·\.**·n1~** dctcnninalion of\\hdheror**n~n** a 9 lO major or minor**a!t~ratiunor** r.:pair**•~as** made un these ' 10 II fuel tanks, 

### i II 

### u Q.**Ollu~r** lhau t.·ou,·usations**~bout** that !12 13**~ubject** thatyou**mi~ht** b:nc had"" itb :\lr. SttHn.son, \ 13 J.4**'"'hi~h** 1am not**asking~**ou**about~** \'1.hich l am not asking 

### ! 14 15 you to talk**~bout,** okay.**han~** you had**di'"t\l'ii~ion~** "ith 

### 1t5 16 an-yone else in th<' FAA aboutthat subjcet matter? 

# jt6 17 A. Yes. ; 17 IR Q. Withwhom. please? 18 19 20 ll 

### n 23 24 15

2 3 4 5 6 7 8 9 10 II tl 13**~~** 15 16 17 18 19 A. All ufmy**coll~agues** and airworthiness sp..:cialist!> al**th~** 230 branch. 19 10 Q. 

### A. C31.nyou gh-·e me their names, please? Martha**Ste,~art.** Martha Farmer. excuse m-:. David, I can'tretnt!mber D:ave':o. last name. And myself. .21 22 23 Q. Sojusttwo people. 124 

### i25 A. Just two**p~ople.** Page 14[ Q. And what did you discuss with Martha

# --1~ w1'ote Martha Stewart down. [ 2 ,;\. :\iartha F:1rrner. Ibegyourpardon. 3 Q. Wbatdid }'OU discuss with Ms. Farmer'! 

# I.I MR. STEVENSON; Just amoment. 5 Iam goingto**o~iect** to that question (}0 ! 6 the bash thal

### Lh~ conversation bet\-ve-cn FAA \! 7 employees is rrcqucntlycovered by the d<:r:iskmal 8 process prhikge. Unless you wantme to speak I 9 with :O..ir.**Dndg~e** ubout whc:ther or not thnt would be I' 10 "iolntcd. I om going ro instruct him notto

. 11 ans'-'t:r on [he ba.iis ofthlll-p!'iVi!i!g<:. 

# ju MR. GOI DSTEI'N: Idon't thin\.: )--0u ton make i l3 that insttuLti(lrt at this point whhm!tkm1wing at 1 14 l<!llSt the !Jii!nt:r

. .t.l subjettmattc:-r of\\h:.J.t tht:!y ! 15 talked about. i 16 

## ' :ViR. SrEVENSON:**Y~:1h.** But i1 isa · 17 pri\i!egl!. I am nm**~uin~ ·~**  i r.:;.tn't hear his 18 19 ,·cmnq**1f~·tw** 

### i-**>:t\\~o.'l.'n** L\.,**~"·'".** {t:**t~}** lind ,out \\h,lt**!hi\~e .:ui1\\.'J'<:,;~till!h**  ',\o;:re- '""'-· Jr f -.:un prohibit him from i.iliS'-\crlng. \IR. GOLDSTEI\l; Lt:t m.: say this. Ithink that antes:; 1,l.'{k him an "'pinion que:sti1m, ,,-hut ,,pinilln Jid Ms. FarmerhJ'e. wh;.tt npinion did David have. it b not prh-ikgt:d. Furthmnort!. lhe L-\A in response toint.;rrogatorks in this .:o.sehas**::llread~** jescribcd**conver~ati<.lns** betnt!t:-n

### u- at le-ast ill this .:a.-;e orthe Schneider .:asc .... between insp..:ctors.**~IR.** STEVE7'SON: I :lt11 not osscrting that**~\-Cry** conH·rsatiort bt"tween FAA employees is.**privileg~!d** orelse 1would u. I mean. ifIdid. it\\ould be no relevance to me askingMr. Dodge what it**\\·a~** ahout. But Iwould haveto look at those particularconversations toknow whetheror not aprivilegt: shOuld hti\1;! bt!t!n applied; and if th!! FAA·· iffor whateverreasonthe prior

### rAA counselwho represented \:hose to or inadvertently wah-ed pri\ilt:ge with regards tooneI,;'Onversation that**do~sn't**mean that itwaives privilege with regards to all conversations. Page16**~IR.** GOLDSTEIN: Why don't JOU take ale" minutes andtalk to him and, youknO\\'. itrna) be that we will have to go to tht!:judge andhave Mr. Dodge comeback. Bu\ ifwt: go lo theJudge andthejudge sideswith me, tam not comingback hert!. You aU are goingto haYe to present Mr. Dodge in Miami. MR. S'I'!;Vt::NSON; IJon't knowwhatthe contentsare. {Rece-:iS froml2:37 run. to 12:39 p.m.) MR. STEVENSON: !leftthe room and spoke to Inspector Dodge, lt is nolamatter of privilege to go ahead and an:mer**th~** Que:-otionyou**u.;k~d**• .'\s )'IJU indicated thl!re could be fol!O\'-I·Up**4uc~tiun;;** you might ask \dv:rc I mighl hcwe lo invoke it**:.1g~in.** ifyou stuJi**a~**king uhmn opini(111" tlut**w~re** tll'fert!d. But Lhe: gener:.ll**:;ubj~r.:t m~tw:r** **~,r** \\h<Jt \\as.**Uis~usst.?d** is fine:, Q. (lly**~lr.** Goldstein) !Jo you have the 20 uns\\cr ;J.nd thcn Jccid..: \Yhcthcr or not t

.. l imokc the pdvil

..**>g~.** 20 questionin mind, sir? 21 22 23 24 25**~** ..Ht. GCJU1STFIN: Y1)ll ..:ould ll\U\t::**t~l** striL: It :utl!r. \1R. STEVE:.;SON: \[is J prhih:ge :1nd he.;;nL9: it is :111**j,~ue q[f1t'iYik~~**  ifllc1him anS\\l'r,**th~n th~t**  b a ..:at thut I gencrully !'age 15 : 2l :\. ':-.o.
l3 2.1 {rhe record**'~us** t'l..'nd**b~·** t!w**n:pt1rt~r,}** !'HE WIToiESS: Tho ,·omoval ofrhe blaJJ•r tank ,u;d the \Yelding ot'lhe J.]uminum .md the**~hell.** Page 17 REGENCY-BRENTANO, INC 5

### (Pages 14 

### to 17)

### U.S. DEPARTMENTOF TRA:"'SPORTATION 

### m·FICE Of HEARI:'-!GS FEDERAL AVIATION 

### ADMINISTRATION

FEDERAL AVIATION ADMINISTRAT!ON. 

### Complainant.

vs. DocketNo. FAA-2012-0477 

### FAA Case No. 2011Gl030070
LIBERTY FOUNDATION. Respondent. Judge Sullivan



### AFFIDAVIT OF DONALD DODGE
STATE OFGEORGIA
COUNTY OF FULTON
HAVING COME before the undersigned Notary duly authorized to administer oaths, Donald Victor Dodge, did state under oath afterbeing properly sworn. that the following statement is 

### true and accurate: I. l am over the age of 18 and I understand the obligations ofanoath.
2. I am currently employed with the Federal Aviation Administration as a Regional Specialist (Maintenance) at the Southern Regi<>nal OC!ice in College Park. Georgia. 

### 3. I have 16 years' experienceat the Federal Aviation Administration,lirst serving asan Aviation Safety lnspecwr(Airworthiness) then later as a Regi<>nal Specialist.
4. I have more than 37 years' experience as an aviation mechanic. having held a Mechanic Certificate with Airframe and Powerplant Ratings since 1976. an Inspection Authorization**sine~** 1979. I have also held a pilot certilicate since l972. From IQ7(] through I'!97 l worked at, owned, and operated Dodge Aircraft. a fixed-base operator**per!ormin~** general aviation maintenance and alteration services, inducting regular 1\ork on vintage andclassic aircrall. 

### 5. l am familiar with the facts ofthis case. concerning the work performed on N390TH's 

### lud system in late 2010 through early 2011. culminating in a February 24, 2011, return to servitoe. and also concerning the June 

### IJ, 2011. t1telleak in one ofN39UTH's new 

### tucl tanks. The material [havereviewed includes the ueposition ofthe mechanic who perfonned the work in question. photographs ufth10 winter 20 l0-11 work in progress. photographs aml video ofthe

### ~--""-!!

### .I

### une 20 II 

### fuel kuk. appl

### il:ahk portions

# "rthe maintenance 

### rcc:urds ti>r 

### N}90HI. applicahlc portions 

### ofthe B-17G structural repair handbook. maintenance 

### and erection 

### handhook. and 

### parts I bt. and c12rti

### fieatinn 

### and rt.:gtstnllion information fur \1390 rl f 

### 6. I am**l~uniliar** with the Federal Aviation Regulations anJ policy documents issued 

### hy the Administrator wnceming repairs. alterations. major repair;. major alterations. and I\hat sorts of 

### work on aircrati fall into which category. 

### 7. lhe aircrali invol\'cd 

### in this case is 

### a Boeing 

### B-17(1. serial number**.\4-S573~.** registered 

### as civil aircraft N390TH. R. N390Tll was built with fuel tanks consisting ofsix thick.**sdt~sealing** bladuer fuel tanks. three in each wing. Each bladder tile! tank""' installed in an aluminum shell that surrounded the bladder tanks and was attached to the interior ofthe wing 

### by straps. All attachments between the tile! tanks and the rest ofthe fuel system were tlxed directly into the bladder fuel tanks. In order to accommodate the straps and various attachments 

### and tittings, numerous holes were present in the aluminum shells. Additionally. one end ofthe aluminum shdls was removable, so it could he taken on oroffthe bladder 

### fi1d lank. 

### 9. In general terms. the work onthe fuel system ofN390TI-I that culminated in the February 

### 24. 20II, return to service consisted ofremoving the bladder fuel tanks entirely. fabricating a filler neck attach point. a fud boost pump**att~ch** point on four ofthe six fuel tanks. a fuel quantity transducer mounting point, fuel system line attachments and plates to seal the fonner 

### fuel bladder mounting points. welding those attachments and plates onto the aluminum shelL welding shut the removable end ofthe shell. and connecting each ofthe 

### six shells into the existing fuel system as tile! tanks.
10. Although some B-17 aircratl were manufactured with solid metallic tanks. N390TH was not. Further. no 

### B- 17 was manufactured with 

### a solid metallic tank consisting of

### an aluminum shell with holes that had been plugged by welding a variety oftabricated attaclm1ents and plates to the shell, or a manufactured with a removable end that was then welded closed.
11. This work was an alteration. not a repair.**hecau~c** it changed the design ofthe aircraft and its components. and was not simply a restoration ofthe aircraft to an**undamag~d** state. 

### 1::!. The**alt~rutiun** was 

### a majur alteratinn. 

### ,\s smred in section 

### t

### .I 

# ,,fthe**~·cdcral** 

### "\viarion**R~gulations** (lldinitions): 

### \tajor 

### alteration meuns an 

### alteration not listed in th<: airc.:ratt.**air~rah ~;;nginc.**  

### pr propeller spccilic;,tions--
i IJ fhat might apprecrubly u!Tcct weight. halancc. ·;tructuml strength. pcrtimnancc. rowerpbnt operation. tli[!ht charactcrisllcs. or <1thcr qualities affecting airwonhincss; or!

### 21 

### That is not done <\ccording to**a~ct;ptcd** 

### pr:tcti..::es \)f 

### ..:annut**b~ dnn~**  

### hy elementary operations.
13.**Th~re** are several reasons why the**aH~ration** wasa major alteration. Within tour months ofthe alteration. the welding cracked in one ofthe new tanks. resulting in a fud 

### leak. This was an appreciable effect on a quality affecting the airworthiness ofthe aircraft. Thus. the alteration was a major alteration.
14. Additionally. even setting aside the fuel 

### leak. the removal ofthe bladder fud tank could have had an appreciable effect on the airvvorthiness ofthe aircraft and its fuel system. The alteration increased the tuel capacity ofthe aircraft, affectingweightand balance and possible stresses placed on the wing structure. The new aluminum !lie! tanks were susceptible to vibrational stresses in ways that abladder fuel tank was not. An aluminum fud tank would not respond the same way to the stresses ofthe in-tlight motion ofthousands ofpoundsofaviation fuel 

### as a semi-rigid bladder tank would

- hat11es should have been incorporated into any hardshell fuel tank design for tanks 

### ofthese sizes. The newly fabricated fixtures and attachments may ormay not have been ofequal quality with the components they were replacing. The fabricated fixtures and attachments. evenassuming that they were 

### ofequal quality to the 

### parts they were replacing, had changed from being attached to the semi-rigid bladdertank to being attached to the rigid a!tuninum tank, which could impact how they responded to stress during !light. All of these problems are exacerbated becausethe aluminum tanks were not simplysolid, formed aluminum tanks, but had been extensively welded. introducing numerous potential weaknesses into the system- ascan be seen by the cracking that developed in one ofthe fuel tanks in less than four months, the weld seams an: a source ofstructural weakness and can make the tank more susceptible to issues with vibration 

### and stress. Welding can also increase the possibility

### of corrosion. The weaknesses that can be introduced 

### by welding are highlighted 

### by the B-17G Structural RepairHandbook's prohibition on welding aluminum structural members while the fuel tank is not 

### a structmal component. and welding

### ufuel tank 

### is permissible underappropriate circumstances, the same potential**w~aknesses** in the resulting compllnent are still present and must 

### be accounted for.


### I

### 5. Also, any alteration ofa fuel tank is a major alteration. FAA Order 

### 8900.1 provides extensive guidan<:e to Aviation Satety 

### Inspectors in the performance

### oftheirduties. Oneofthe 

### possibk duties ofan ASI is tield approvals 

### ofmajoralterations. Accordingly, one ofthejob aids in the 8900.J is a list ofmajor alterations, and whether the required approval can be a lield approval. must be an engineering approval, or requires a Suppkmental Type Certillcate. On the list ofmajoralterations is any change in a permanent fuel t3nk. or installation ofa new tile! tank.
17.**~uiiher.lh<!** labricatitm ofnew tile! tanks out ofthe aluminum shells was a major alteration**becaus~** labricating components and welding are not an elementary clperation. 

### 18. Iam aware ofthe provision in Appendix A ofPart 43 tlfthc Federal Aviation Regulations that lists changes in the basic design ofa tuel system tL' an example ofa major alteration. The replacement ofthe bladder fud tanks with titbricated aluminum tud tanks \\as a change in the basic design ofthe fuel system. While someone could mechanically list dozens ofcomponents that were not**r~placed** in replacing the fuel tanks. this does not mean that the replacement ofthe

### fuel tanks was not a change in the hasic design ofthe fuel 

### svstem. l·ud tanks. and their ahility to perform prnperly. are absolutdv vital to the sale functioning ofa 

### fuel system and aircrali not the least hccausc a fuel leak can have disamous c<Jnscquences l(tr an aircraft. Tk 

### impnr1ilt1C<.! 

### ,,f the fuel 

### tanks to 

### the fud system can he seen in guidance providcd hy 

### the ,\dmintstratcw to rAA 

### inspectors in 

### the X 1 

### JOO I. where 

### all alteratictns to 

### fuel tanks are classi!ied as major alterations. 18. 

### i\ddittonally. based 

### on my**e~perience** 

### as a mechanic and 

### an fAA 

### employee. it is 111)' 

### opinion that fabricating 

### a fud tank out 

### ofan aluminum shell 

### by welding 

### ,m attachments and metal plates to close openings is not an accepted practice. as that tenn is used in the FAR I.I dctinitions ofmajor alterati<>n 

### and majorrepair. 19. Each ofthe reasons Jcscribed above. standing alone. would render the alteration a major alteration.
20. The work performed that culminated in the February 24, 201 

### I, return to 

### service was an alteration, not a repair. However. 

### if

### it was a repair. it would he a major repair. As stated in section 

### I.! ofthe Federal Aviation Regulations (l)elinitions): Major repair means a 

### repair: (1) That. 

### ifimproperly done, might appreciably affect weight. balance. structural strength. performance. powerplant operation, tlight characteristics. orother qualities affecting airworthiness: or (2) That is not done according to accepted practices or cannot be done 

### by elementary operations.
21. The distinction betwet:n a major repair and minorrepair largely tracks the distinction between a ml)jor and minnr alteration. As such, all but one ofthe reasons discussed above as to why the alteration 

### was a major alteration are also reasons why this would be a major repair. ifit 

### had been 

### arepair.
22. The one exception is regarding the example in Appendix A ahout how a change in the basic design ofthe fuel system is a major alteration. This examrlc is not applicable to repairs.**Howev~r.** 

### Appendix A also provides that each and every repair ofa 

### ntel tank is a**maj~>r** 

### repair.**~]** 

### Fach ofthe reas,ms**J<.lentiti~d** 

### abme, standing**alon~.** 

### would**rend~r** 

### the 

### wot'k a major repair. if

### it was arepair.
24. The 

### alteration ofN}'!tiTH is 

### not described in 

### any maintenance m:mual or 

### instructions for continued airworthiness t(w 

### the• B-17(;.
15. !'he mctho<b. tedmiques. and practices used hy 

### Respondent in alterin!' the aircrati are not ac<:cptablc to the .'\dministratPr. Respondent's alteration intmduced numerous potential- 

### ,mJ actual ·weaknesses into the am:rali, :md 

### Jtd not mclude the sort ofinspections necessarv to verify 

### that the new fu<i t:mk' "ere capahk 

### ul·**~>ithstandin~** 

### the stresses lll'

### llight.

### 26. 

### The alteration 

### of**~YlOTH** 

### was 

### not done in 

### such away 

### as to 

### restore the condition 

### ofthe aircrati 

### to en kast its originalur properlv altered cunditi<m with respect to 

### resistance 

### to vihration and 

### tkterioration and 

### other**~ualitics** 

### affecting airwnrthincss. :\II nfthc 

### t:Ktors mentioned in paragraph 

### 14 are pertinent here. The extensive 

### weld**in~** 

### on the new fud tank,; made them vulnerable to 

### the stresses tlf !light in ways that the original tanh were not. and this resulted in the rapid failure ofone ofthe tanks.
27. N3YOTH was unairworthy because it did not conform to its tvpe cetiilicateor type design. The aircraft did not conform to its type certificateor**typ~** 

### design because the B-l7G's design never contemplated taking an alummum shdl '"ith numerous holes in it. fabricating components and welding them onto that shdl. and then using it as a fud tank. 

### 'l390TH's specification sheet. which is now the type ccrtiticate for the aircraft. requires that for repairs or modifications not listed in the aircraft's maintenance manuals. the repair or modification must t1rst be presented to Civil Aeronautics Administration (now the Federal Aviation Administration).
28. Theaircratl did not confonn to its type certificate ortype design because it had not been restored to its original or properly alteredcondition. The aircraft did not confonnto its type certificate ortype design because the alteration perfom1ed was not an approved or acceptable fonn ofalteration. The aircrati did not conform to its type ccrtiticate ortype design because :VIr. Schneiderdid not have the Inspection Authorization required to return the aircraft to 

### serviceafter a major alteration. The aircraft did not conform to its type certificate ortype design because no FAA Fonn 337 was executed for the major alteration. The aircraft did not conform to its type certificate ortype design because no approved technical data was used in performing the alteration.
29. Each ofthe above reasons. standing alone. meant that N390TH was unairworthy because it did notconform to its type certificate ortype design.
30. The aircraft was unairworthy atlerthe February 2-1.**~Oil,** 

### alteration because 

### it was not in a condition for**saf~** 

### operation. Improper tucl tanks present numerous hazards to an aircraftmost notably. leaking fuel can result in loss ofengine power and is also a severe fire hazard. As described by Mr. Schneider in his deposition. the tuelleak that occurred in June 2011 was a direct result ofthe february**~4.** 

### 20II alteration ofthe aircraft. For the reasons described above. welding can introduce numerous \Vcaknesses intt1 an aluminum compom:nt. and the safety of 

### such a htJavily welded fuel tank was alwa,·s**~uestionable.** 

### That th<: \Widing faikd so quickly demonstrates that the pmcntial weaknesses had, in tj\Ot, been introduced. It is my opinion that. because ofrhe improper alteration, 

### 'l390HI was nt>t in a condition 

### li1r safe operation after the installation ofthe aluminum fuel tanks.
31. 

## rhave reviewed**th~** 

### maintenance rewrds f(lf 

### N3911 

### I'll pertaining to the February

## 2+. 2011. alteration. No fAA hmn 337 was completed for this work

. .J2. l have reviewed \-!r. 

### Schneider's dcscripti,•n ofthe maintenance work perfonned on the**Jun~** 20I r 

### fuel leak. The mainrcnnnce perttwmcd**\':a~** nol ClH1taincJ 

### in the 

### aircratf mainknam;c

# . '



### manuaL The**maintcnanc~** 

### performed was n1)t 

### contained in any instructions t{lr 

### continued airworthiness ti1r the arrcrali. rhe 

### maintenance perfun11cd was not nthcm1sc acceptabk to the 

### Administrator. 

### 33. TheJune }I)11 maintenance nn the lilhric;ltd lttd tanks was not othef\vise acceptable to the Administmtordue to the nature ofthe

### c,1mponent being repaired. Ihe 

### fud tank was an unapproved 

### pan that should never have been installed on the aircraft. There were no methods, techni4ues, orpractices acceptable to the Administrator for repairing the fuel tanks hecause the fuel tanks themselves were unucceptahlc.
34. In addition, even ifthe nature 0fthe fttel tanks was set asid\0, the repairwould not have been performted using methods, techniques, or practices acceptable to the i\uministrator. As 1\.tr. Schneiderindicates in his deposition, the work could have been done in a kss risk) manner, but he chose 

### to opt for a quick 

### fix in order to meet 

### a schedule rather than 

### the safe. proper repair. The fuel tanks should have been removed liwn the 

### aircraft fi.1r th<: repair. but 

### were not Sealant should have been applied from the inside, butwas instead applied from the outside ofthe tankapplyingthe sealantto the inside ofthe tank .ensures that the pressure of

### the fuel in the tank serves to push the sealant into any cracks. ratherthan push the sealantout. Mr. Schneider perfonned only a limited 

### visual inspection on the repair through the boost 

### pump access door, but the inspection should have beenmore extensive (for example, the fuel system should have been pressurized and the boost pumps should have been activated).
35. In addition to theunairworthiness caused by the February 24. 201 I, alteration, N390TII was unairworthy when it operated onJune 13, 2011, 

### because ofthe impropermaintenance perfonned by**~r.** Schneiuer. Not only was the repairimproperly performed. 

### it was also a 

### repair that was not listed in the maintenance manual and was therefore not permitted under the aircraft's type certitlcatc. Further, it was a majorrepair and Mr. Schneider did not hold the Inspection Authorization required to return the aircraft to service at\crthe repair. and no FAA l'orm 337 was executed.
Further

# amam sayeth naught.
I hereby swearoraffirm that the above is accurate and true to the best ufmy knowledge.



# a:. Swom and subscribed 

### bdorc me this

# /3 _dayofAugust. 

### 2013.

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