UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

IN THE MATTER OF: 

Airborne Maintenance 

and Engineering Services 

Respondent 

Friday, 

March 13, 2015 

FDMS No. 

FAA-2013-0291 

1 

The teleconference convened, pursuant 

to notice, at 1:30 p.m. 

BEFORE: 

THE HONORABLE J.E. SULLIVAN, 

Administrative Law Judge 

REG rVED 

HEARING DOCKET 

(202) 234-4433 

ORIGINAl 

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APPEARANCES: 

On Behalf of the Complainant: 

CHRISTOPHER R. STEVENSON, ESQ. 

of: Office of the Regional Counsel, 

Southern Region 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, Georgia 30320 

404-305-5200 

404-305-5223 fax 

On Behalf of the Respondent: 

ROBERT P. SILVERBERG, ESQ. 

of: Silverberg, Goldman & Bikoff, LLP 

Georgetown Place, Suite 120 

1101 30th Street, NW 

Washington, D.C. 20007 

(202)944-3300 

(202)944-3306 fax 

Also Present: 

CODY SMITH, Attorney Advisor 

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Exhibit Nos. 

Complainant 

JJ 

H 

BB 

E 

K 

M 

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(202) 234-4433 

CONTENTS 

E-X-H-I-B-I-T-8 

Document 

Jeffrey Becker's Testimony 

Letter from CCIA to 

Inspector Lipinski 

Letter from Capital Cargo 

to FAA Inspector 

Bobby Evans 

Letter to CCIA 

E-mail between Respondent 

And CCIA 

Maintenance Records 

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3 

ID Rec'd 

36 

45 

45 

48 

48 

48 

48 

(202) 234-4433 
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1 P-R-0-C-E-E-D-I-N-G-S 

2 (1:34 p.m.) 

3 JUDGE SULLIVAN: We're on the record 

4 in the matter of Airborne Maintenance and 

5 Engineering Services. This is Docket Number FAA6 2013-0291. Today is Friday, March 13, 2015, and 

7 the parties have convened for a motion conference 

8 on cross motions filed for summary judgment. 

9 The FAA is represented by its attorney 

10 of record, Mr. Christopher R. Stevenson. The 

11 Respondent is represented by its attorney of 

12 record, Mr. Robert P. Silverberg. Also present 

13 at the Office of Hearings is Mr. Cody Smith, an 

14 attorney advisor with this office who is sitting 

15 in as an observer only. 

16 Good afternoon to you all. I'll just 

17 note and I appreciate everybody's patience, that 

18 we did have this matter scheduled a little 

19 earlier in the month but it had to be rescheduled 

2 0 because there was unexpected snow and as a result 

21 federal offices were closed that day because of 

22 treacherous driving conditions. 

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1 The parties then were contacted by the 

2 Office of Hearings and agreed to reschedule the 

3 motion conference to today' s date and time. 

4 Earlier today Mr. Smith contacted the parties by 

5 e-mail asking if they were available for perhaps 

6 later in the afternoon today because the court 

7 had a terrible flooding problem in the basement 

8 of the court's home. 

9 So fortunately that was taken care of 

10 by noon and we were able to convene this 

11 afternoon at our regularly scheduled time. But I 

12 thank everybody for being available potentially 

13 for a little bit of change if such change would 

14 have been needed. 

15 Having said that, let's talk a little 

16 bit about housekeepingmatters. And I'm going to 

17 start with a general, a comment about filing 

18 exhibits in reply briefs. In this court's 

19 experience typically that lS not done. 

20 When it is done the court is required, 

21 as I understand the court's obligation, to offer 

22 the opposing side additional time to also file 

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1 exhibits in reply briefs or in response to the 

2 exhibits in the reply brief. In this particular 

3 case however, because there were cross motions 

4 and both parties filed exhibits in reply briefs 

5 it does not appear, at least on the face of the 

6 record, that any further additional time would be 

7 needed by either party before they're ready to 

8 present their arguments on these motions. 

9 But I just wanted to check in with 

10 both of you about that presumption before I go 

11 forward. Mr. Stevenson, could you respond to 

12 that first please? 

13 MR. STEVENSON: Yes, Your Honor. The 

14 FAA does not need any additional response within 

15 the context of the motions. The FAA does have 

16 objections to a couple of those exhibits that 

17 were attached to the Respondent's reply brief but 

18 not on that basis. 

19 JUDGE SULLIVAN: Okay. And, Mr. 

20 Silverberg, same question and inquiry to you. 

21 What's your position? 

22 

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MR. SILVERBERG: Your Honor, I'm not 

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l sure that the proceeding would necessarily be 

2 benefitted by another round of responses or sur3 responses. So I think that the record is fully 

4 completed to the point where you'll be in a 

5 position to make a determination. 

6 JUDGE SULLIVAN: Okay. Thank you very 

7 much. Then we can proceed today. Let's start 

8 then with any objections to exhibits. I think 

9 that might work best. 

10 And what I'm going to do, why don't we 

ll start with the Respondent's cross-motion for 

12 summary judgment. And that means we have 

l3 Exhibits l through 16 proffered by the Respondent 

14 in its motion for summary judgment and then in 

15 the Respondent's reply there are an additional 

16 eight exhibits that were identified as Exhibits l 

17 through 8. 

18 And that needs to be addressed for 

19 clarity in the record. It's never preferable, in 

20 this court's opinion, to have two different 

21 exhibits with the same exhibit number from a 

22 party. 

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So it would seem to me, Mr. Silverberg, 

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1 that we can do a little tweaking with how you 

2 have listed your reply exhibits to differentiate 

3 them from the original motion exhibits. 

4 So instead of having the Respondent's 

5 reply exhibits be identified solely as 1 through 

6 8, let's identify them as 1R, 2R, 3R, 4R and so 

7 forth. Therefore your exhibits for any appellate 

8 purpose would be identified, for example, as 

9 Respondent's 1 for the numeral one exhibit that 

10 was attached to your motion and then Respondent's 

11 1R for that exhibit that was attached to your 

12 reply. Would that make sense to you? 

13 MR. SILVERBERG: That's fine. I could 

14 make another suggestion if you would like? 

15 JUDGE SULLIVAN: Sure. 

16 MR. SILVERBERG: And that is we could 

17 continue to number the exhibits consecutively and 

18 produce for you a reply to the Respondent's 

19 opposition to our summary judgment motion using 

2 0 those consecutively numbered exhibits if that 

21 would aid in the process. 

22 

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JUDGE SULLIVAN: In other words 

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1 renumber these exhibits and then the exhibits in 

2 your answer to the FAA's motion? 

3 MR. SILVERBERG: In our motion we'll 

4 start out Exhibit 1 and when we get to the 

5 additional exhibits that were attached to our 

6 reply to the FAA's opposition to our motion we 

7 would just consecutively number them the first 

8 one then being Number 17, if that would be of any 

9 assistance to you. 

10 Otherwise we certainly can accommodate 

11 numbering them lR, 2R and so forth. 

12 JUDGE SULLIVAN: Okay. I think that 

13 since the exhibits have already been marked it 

14 would be more work for the court at this point to 

15 remark everything. But I will turn to Mr. 

16 Stevenson and see if he has a preference. Mr. 

17 Stevenson? 

18 MR. STEVENSCN: Whatever is most 

19 convenient for the court. The FAA has no 

20 preference. I did want to ask a clarifying 

21 question. When you had suggested, Your Honor, 

22 the Respondent's original motion would remain 

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1 numbered 1 through 16. 

2 The Respondent's reply would be 

3 reidentified as 1R through 8R and would the 

4 exhibits attached to the Respondent's response in 

5 opposition to the FAA's motion for summary 

6 judgment remain labeled 1 through 8? 

7 JUDGE SULLIVAN: Yes, because it's a 

8 separate motion and each motion must stand or 

9 fall separately from each other. That would be 

10 the court's inclination. Does that answer your 

11 question? 

12 MR. STEVENSON: Yes, Your Honor. 

13 JUDGE SULLIVAN: Okay. Then, Mr. 

14 Silverberg, I'm going to thank you for your 

15 recommendation to remark and I will respectfully 

16 decline ln large part because I've made 

17 substantial notes already based on what I have 

18 and --

19 MR. SILVERBERG: Understood. 

20 JUDGE SULLIVAN: So let's do this with 

21 the Respondent's cross-motion I'm going to start 

22 with Mr. Stevenson. And, Mr. Stevenson, I'm 

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1 going to ask you if you have any objection first 

2 and foremost through the Respondent's Exhibits 1 

3 through 16? 

4 MR. STEVENSON: The FAA does not 

5 object to any of those exhibits in and of 

6 themselves although as I'm sure Your Honor noted 

7 the FAA does object to the, would object to the 

8 court's consideration of Mr. Becker's opinions as 

9 expert opinions as expressed in one of those 

10 exhibits. 

11 JUDGE SULLIVAN: And which one of 

12 those exhibits are you talking about? 

13 MR. STEVENSON: That would be Exhibit 

14 3' excerpts from the deposition of Jeffrey 

15 Becker. 

16 JUDGE SULLIVAN: And in Exhibit 3 

17 there is a total, actually I don't have a total 

18 number of pages. But I will say it's at least 40 

19 pages of deposition excerpts. Can you tell me 

20 which opinions and on what page you are asserting 

21 his expert opinion that you think should not be 

22 considered or should be struck? 

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1 MR. STEVENSON: I, no, Your Honor, I 

2 could not off the top of my head give you those 

3 page numbers. The Respondent throughout its own 

4 motion, it's reply in support of its motion and 

5 its response in opposition to the FAA's motion 

6 relies almost exclusively on Mr. Becker's 

7 deposition testimony for every maintenance matter 

8 that it provides evidence in support of. 

9 I did not create a comprehensive list 

10 of what those citations were. But it would be 

11 almost every time the Respondent's brief cited to 

12 Mr. Becker's deposition. 

13 JUDGE SULLIVAN: Okay. Let me ask you 

14 this then. In terms of what you perceive to be 

15 an expert opinion, do you have some criteria 

16 other than, I usually call them ERs, Evidence 

17 Rule 702 for example, for the court to consider 

18 when looking at this material since there is not 

19 a specific statement of evidence that you're 

20 pointing to? 

21 MR. STEVENSON: In general the 

2 2 Respondent cites to Mr. Becker repeatedly on 

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1 subjects such as what the cause of particular 

2 damage was or might have been, what is involved 

3 in the installations that are involved in this 

4 case. Do you have to put in a flap track 

5 fairing? 

6 Do you do anything with the hinge 

7 cover? Do you do anything with hydraulic lines? 

8 You know, so there, almost everything that Mr. 

9 Becker offers is in the form of opinion because 

10 he didn't personally observe the installations. 

11 He had no personal recollection of the condition 

12 of the aircraft. 

13 So I mean almost every statement he 

14 makes except for some statements about 

15 conversations are his opinion based on reviewing 

16 records. 

17 JUDGE SULLIVAN: And in the 

18 Respondent's materials at some point the 

19 Respondent provided some information about Mr. 

20 Becker's expert credentials which you received 

21 and reviewed. Why --

22 

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MR. STEVENSON: Yes, Your Honor. 

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1 JUDGE SULLIVAN: Why, in your opinion, 

2 are those credentials insufficient to support Mr. 

3 Becker's opinions in this case on this matter? 

4 Can you tell me that? 

5 MR. STEVENSON: Yes, Your Honor, 

6 because none of those credentials has to do with 

7 the opinions that the Mr. Becker is offering. 

8 Mr. Becker has a degree ln aeronautical 

9 engineering. He has a Master's in Business 

10 Administration. 

11 He has engineering experience. He has 

12 management experience and perhaps if those were 

13 at issue in this case then it would be 

14 appropriate for him to testify as an expert. But 

15 he has no experience repairing aircraft, no 

16 experience inspecting aircraft and no experience 

17 maintaining aircraft in general. 

18 Not only is he, I'm sorry, my mouth is 

19 a little bit dry. Not only does he not, you 

20 know, he doesn't have an A&P certificate so he 

21 legally cannot perform those tasks, but he also 

22 doesn't have any other experience that would 

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1 substantively support him being able to offer 

2 opinions on that. 

3 For example, you might have an 

4 individual who had military experience who since 

5 they have their own system doesn't have an A&P 

6 certificate or a repairman certificate but has 

7 lots of aviation maintenance experience. 

8 It's also possible, although unlikely 

9 that someone is at the apprenticeship stage of 

10 aviation maintenance for a lengthy period of time 

11 and is always under the supervision of a licensed 

12 mechanic but is actually doing the maintenance 

13 and inspections for a lot of, you know, hands-on 

14 purposes and for some reason has ended up not, 

15 choosing not to attempt to get an A&P. 

16 That would be very unusual. But it 

17 hypothetically could happen. But Mr. Becker 

18 hasn't done any of that. And not only is this 

19 with regards to aircraft in general but I would 

20 also note that his experience with this aircraft, 

21 with Boeing 727s is almost nonexistent. 

22 He and the individual at AMES had no 

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1 experience with 727s prior to these aircraft. 

2 And yet Mr. Becker is offering opinions about, 

3 you know, how to configure this particular kind 

4 of component in this particular aircraft or what 

5 is or is not wear and tear, how likely things are 

6 or are not to cause problems. 

7 That's the sort of thing you learn by 

8 being a mechanic, by working on these planes. 

9 And again, while Mr. Becker perhaps may be a fine 

10 engineer it's not something that he was doing in 

11 his role as an engineer and as a management 

12 official. 

13 JUDGE SULLIVAN: Okay. So we're 

14 looking then in Exhibits 1 through 16, 

15 specifically at Exhibit 3 of the Respondent's 

16 exhibits as being an exhibit that the FAA is 

17 objecting to in part where there are expert 

18 opinions offered in these deposition excerpts by 

19 Mr. Becker. Is that my understanding of this 

20 objection? 

21 

22 

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MR. STEVENSON: Yes, Your Honor. 

JUDGE SULLIVAN: Okay. 

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1 MR. STEVENSON: For completeness and 

2 clarity and I won't address it further unless you 

3 want me to. But in addition to the FAA's 

4 objection that Mr. Becker is not an expert as the 

5 FAA noted in its response motion, the FAA had 

6 previously moved to exclude Mr. Becker when he 

7 was disclosed as a ''rebuttal witness''. 

8 And the Respondent represented to the 

9 court that the only purpose that he was 

10 identified for was in response to Specialist 

11 Christiansen. So Your Honor accordingly deemed 

12 the FAA's motion to exclude moot. The Respondent 

13 should be bound by its prior representations to 

14 the court. 

15 Inspector Christiansen, I'm sorry, 

16 Specialist Christiansen isn't being allowed to 

17 testify. These individuals who were identified 

18 in response to Inspector Christiansen should not 

19 be allowed to testify either. 

20 Additionally, if the Respondent is not 

21 held to its representations to the court then the 

22 FAA would renew its original motion to exclude 

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1 Mr. Becker as presented in these motions is 

2 clearly not a rebuttal witness. He is 

3 essentially the Respondent's, almost their entire 

4 case and yet was never disclosed during the 

5 course of discovery until his identification on 

6 the last day of discovery as a rebuttal expert. 

7 JUDGE SULLIVAN: Okay. So in looking 

8 at Respondent's Exhibits 1 through 16 in the 

9 Respondent's motion for summary judgment, other 

10 than Exhibit 3 do you have any other objections 

11 to these particular exhibits before we go to the 

12 Respondent's reply exhibits? 

13 MR. STEVENSON: No, Your Honor. 

14 JUDGE SULLIVAN: Okay. Thank you. 

15 And I'm going to stick with Mr. Stevenson for the 

16 moment and then I'll turn to Mr. Silverberg for a 

17 response and then we'll do the same with you, Mr. 

18 Silverberg, when we talk about the FAA's exhibits 

19 in its answer to the Respondent's cross-motion. 

20 Mr. Stevenson, staying with you, do 

21 you have any objections to Respondent 1 s reply 

22 Exhibits 1R through 8R and if so what are those 

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1 objections? 

2 MR. STEVENSON: With regards to 

3 Exhibit 1R, the declaration of Jeffrey Becker and 

4 2R more excerpts from the deposition of Jeffrey 

5 Becker to the extent that Mr. Becker or where Mr. 

6 Becker lS offering opinions on aviation 

7 maintenance matters in those documents the FAA 

8 would object for the same reasons it objected 

9 before to Mr. Becker offering those positions, 

10 those opinions. 

11 Additionally, the FAA would object to 

12 Exhibits 6 and 7 which were never produced by the 

13 Respondent during discovery. We received a 

14 supplemental discovery disclosure from the 

15 Respondent on the same day that it provided this 

16 reply in support of its motion. 

17 Respondent had just discovered these 

18 documents. It's unclear how it is, it would be 

19 possible that the Respondent had only now 

20 discovered these, this correspondence between it 

21 and CCIA, these discrepancy notices and the 

22 related documents. 

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1 They are exactly the same sort of 

2 documents that we have in other instances from 

3 the Respondent and no explanation was provided of 

4 how it was that they weren't discovered until 

5 now. Additionally --

6 JUDGE SULLIVAN: I'm just going to 

7 stop you. When did you receive these? 

8 MR. STEVENSON: I received these on 

9 the, on February 27th, the same day that, we 

10 received them at the same time I received the 

11 reply. 

12 JUDGE SULLIVAN: And when you say 

13 February 27th, are you saying February 27, 2015, 

14 or 2014? 

15 MR. STEVENSON: 2015, Your Honor. 

16 JUDGE SULLIVAN: Thank you. Anything 

17 else? Any other objections in terms of 

18 Respondent's reply Exhibits 1R through 8R? 

19 MR. STEVENSON: No, Your Honor. 

20 JUDGE SULLIVAN: Okay, thank you. Mr. 

21 Silverberg, before we turn to the exhibits you 

22 might have objections to that were proffered by 

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1 the FAA let's talk about your response, if any, 

2 to the FAA's objections to Exhibits 3, 1R, 2R, 6R 

3 and 7R in your motion. Let's start with Exhibit 

4 3. Do you have any response to the FAA's 

5 objection? 

6 MR. SILVERBERG: I think, Your Honor 

7 was earlier referencing the information that we 

8 cited to not only from Mr. Becker's deposition 

9 regarding his qualifications and credentials but 

10 as well in the declaration that we filed in 

11 Exhibit now 1R to our reply to the FAA's 

12 opposition to our motion for summary judgment. 

13 Your Honor, Mr. Becker's 

14 qualifications and credentials can hardly be 

15 questioned. 

16 JUDGE SULLIVAN: Well they have been 

17 so if you could respond to it that would be 

18 great. 

19 

20 to do that. 

21 

22 

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MR. SILVERBERG: I'm more than happy 

JUDGE SULLIVAN: Okay. 

MR. SILVERBERG: It 1 s pleasant to hear 

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3 

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II 

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that Mr. Stevenson considers Mr. Becker possibly 

being a fine engineer, but he's more than just a 

fine engineer, Your Honor. He's the head of the 

Quality Assurance Department for the Respondent 

AMES. 

His duties and responsibilities are 

broad with respect to matters involving 

compliance with FAA requirements, managing staff 

of maintenance inspectors, his duties are spelled 

out in paragraphs, in detail in Paragraph 1 of 

his declaration including responsible for 

ensuring inspections are properly performed, 

proper inspection records are maintained, reports 

and forms are used and properly completed prior 

to releasing aircraft back into service. 

I can't imagine an individual with 

that kind of background and experience which in 

the maintenance realm covers a period of, I 

believe, 24 years and even greater if you 

consider his engineering work done at McDonnell 

Douglas on Boeing. 

This individual is highly qualified 

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1 and in fact the testimony that he gave with 

2 respect to the interpretation of the records that 

3 AMES maintained, maintenance records that they 

4 compiled and maintained is obviously important to 

5 this case. 

6 And to suggest that he lacks the 

7 qualifications and credentials is I think more 

8 than a stretch in terms of the ability of this 

9 particular witness to testify with a great deal 

10 of knowledge and experience. 

ll JUDGE SULLIVAN: Okay. And what about 

12 the FAA's objection regarding the fact that your 

13 client represented that Mr. Becker was only an 

14 expert proffered in response to Inspector 

15 Christiansen? 

16 MR. SILVERBERG: Actually I don't 

17 think that's entirely correct. I think the way 

18 in which we phrased the disclosure regarding Mr. 

19 Becker was it would be with respect to not just 

20 Christiansen's expert opinions but any expert 

21 that the FAA may seek to rely upon for purposes 

22 of their presentation of their case. 

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1 JUDGE SULLIVAN: Right, but it's not 

2 specifically how you disclosed the witness to the 

3 FAA. I think that the point the FAA was making 

4 is how you argued the witness' posture to the 

5 court during the motions that were addressed by 

6 the court earlier this year. 

7 MR. SILVERBERG: I don't have those 

8 documents in front of me, Your Honor. I 

9 apologize for that. 

10 But we weren't intending to limit the 

11 expert rebuttal disclosures that could be 

12 submitted by Mr. Becker with respect only to the 

13 expert testimony of, well the potential testimony 

14 of Mr. Christiansen. We refer to this on Page 4 

15 of our reply. 

16 JUDGE SULLIVAN: Did you identify him 

17 as an expert witness prior to May 1, 2014? 

18 MR. SILVERBERG: We listed Mr. Becker 

19 as a person that had knowledge of the case and 

20 could be expected to testify. 

21 JUDGE SULLIVAN: That could be a fact 

22 witness. And it's my recollection of this case 

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1 and the conversations that I've had with the 

2 parties throughout this case Mr. Becker as well 

3 as the inspectors were identified as fact 

4 witnesses and discussed as fact witnesses by both 

5 parties up through September 2014. 

6 So my question is more specific than 

7 being a fact witness. When, if ever, prior to 

8 December 2014, did you identify specifically Mr. 

9 Becker as an expert witness to the FAA? 

10 MR. SILVERBERG: I'm at a bit of a 

11 loss, Your Honor. I don't have all my records 

12 here with me at the moment. I cannot answer that 

13 conclusively. 

14 I would be happy to supply an answer 

15 to that question if I had the rest of my file 

16 with me. Unfortunately I do not. But, sorry --

17 JUDGE SULLIVAN: I appreciate that. 

18 I would like if you can to provide that 

19 information if you have it within the next couple 

20 of days. What would be your earliest --

21 MR. SILVERBERG: I'll be back in my 

22 office on Monday, Your Honor. 

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1 JUDGE SULLIVAN: Okay. Why don't we 

2 say Tuesday just to be on the safe side, so 

3 February 17, 2015, by 5:00 if you have it. 

4 MR. SILVERBERG: Certainly, but, Your 

5 Honor, whether he was identified as an expert per 

6 se or a person with knowledge and with a vast 

7 amount of experience in the field that would I 

8 think also provide a predicate for his testimony 

9 and his written statements as well. 

10 JUDGE SULLIVAN: I understand that 

11 argument. Thank you. But I would like to know 

12 when, if ever, you identified Mr. Becker as an 

13 expert prior to December 2015. Okay. 

14 Let's talk then about Exhibits 6R and 

15 7R and the objections raised by the FAA regarding 

16 a failure to provide in discovery prior to 

17 February 25, 2015. Do you have any response to 

18 that, Mr. Silverberg? 

19 MR. SILVERBERG: It's as follows. 

20 These records were not produced without argument 

21 from us at the time when the bulk of our 

22 materials were produced to the FAA. 

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It was 

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1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 I 

I 

27 

unfortunate that's the case but they were 

subsequently found among the records. 

There was no intention to hide these 

ln any way or shape or form. And we felt that 

our duty as we had done in the past in an earlier 

situation where additional responsive records 

were found among the files of the company then 

they were produced. 

And we followed that same course here. 

In fact, I don't know what course we could have 

followed. We obviously would have been subject 

to criticism had we not produced them, albeit 

after discovery cut off but it was inadvertent 

that that's the case. 

And having the client produce them for 

us we're certainly compelled to produce them to 

the other side. 

JUDGE SULLIVAN: I'm so sorry folks. 

I don't know what happened with my phone. But it 

made a buzzing sound. So, Mr. Silverberg --

MR. SILVERBERG: I jumped about a mile 

high, Your Honor. 

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1 JUDGE SULLIVAN: Me too. Could you 

2 repeat the last portion of what you said? 

3 MR. SILVERBERG: Can you hear me? 

4 JUDGE SULLIVAN: Yes, apparently, Mr. 

5 Smith is telling me I'm getting another call 

6 which I'm ignoring. And I'm going to try and 

7 reduce the volume on the phone a little bit. So 

8 go ahead, sir. 

9 MR. SILVERBERG: I'm sorry. I'm not 

10 sure what portion you might not have heard. But 

11 what I said was, Your Honor, that obviously we 

12 felt duty bound and did produce them once the 

13 client made us aware of their existence. 

14 And that's what we've done. And, as 

15 I said, I don't know what other course we could 

16 have followed and been immune from criticism. 

17 JUDGE SULLIVAN: Okay, thank you . 

18 Okay. Mr. Silverberg, staying with you there 

19 have been exhibits identified by the FAA in its 

20 response to your cross~motion as FAA Exhibits JJ 

21 through 00, six exhibits in all. Do you have any 

22 objection to these exhibits and if so what are 

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1 they? 

2 MR. SILVERBERG: Bear with me one 

3 moment, Your Honor. 

4 JUDGE SULLIVAN: Sure. 

5 MR. SILVERBERG: I'm sorry. What 

6 exhibit numbers did you refer to? 

7 JUDGE SULLIVAN: I'm looking at the 

8 exhibits proffered by the FAA in its answer to 

9 the Respondent's motion for summary judgment. 

10 Those exhibits were identified as JJ, KK, LL, MM, 

11 NN and 00, six exhibits in all. 

12 MR. SILVERBERG: Right. I'm sorry, of 

13 the many pleadings here --

14 JUDGE SULLIVAN: I know there's a lot 

15 of material for us to be looking at. 

16 MR. SILVERBERG: Okay. Now I'm with 

17 you, Your Honor. Well we certainly have, with 

18 respect to Government Exhibit JJ let me just say 

19 we don't have any objection to KK. That's 

20 Jeffrey Becker's testimony. LL we do not object 

21 to. That's just an excerpt from the Airplane 

22 Maintenance Manual. 

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1 There is also an excerpt that's NN 

2 which is excerpt of the Lipinski deposition 

3 testimony. With respect to the declaration of 

4 Mr. Lipinski which is, this is an exhibit that we 

5 have a problem with, Your Honor. And it goes to 

6 the argument which we'll present this afternoon 

7 regarding the entire nature of the FAA case. 

8 But the fact is that the Lipinski 

9 declaration is attempting to recast almost 

10 entirely the FAA's case going into detail that 

11 was entirely missing in the inspector's write up 

12 of the matter contained in the so-called 

13 Enforcement Investigation Report or EIR. 

14 And what he's trying to do with this 

15 declaration and what we find objectionable about 

16 it is that he's now trying to address too late in 

17 the process in our judgment, he's now trying to 

18 address the question of whether or not, excuse 

19 me, there was any wear and tear that would 

20 otherwise explain the condition of the aircraft 

21 as he saw them months after the fact, months 

22 meaning months after the landing gear were 

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1 reinstalled as were the flying doors when the 

2 original work was done. 

3 This was, this comes way too late, in 

4 my judgment, for the FAA to try to recast its 

5 case. It had the affirmative obligation to do 

6 that when it filed its motion. 

7 Mr. Lipinski's statements regarding 

8 what constitutes normal wear and tear and what 

9 does not is in contrast to what he testified at 

10 his deposition about when he claimed that wear 

11 and tear wouldn't be an issue at all with respect 

12 to the condition in which he found the aircraft 

13 or if at all in a very minor way. 

14 Now he's trying to put a gloss on 

15 that, on the FAA's case that simply was missing 

16 in the first analysis as it should have been 

17 addressed at that point. The case is based 

18 solely on circumstantial evidence. We pointed 

19 out the inconsistency of the circumstantial 

20 evidence. 

21 JUDGE SULLIVAN: I'm going to 

22 interrupt you, Mr. Silverberg, because you're 

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1 golng into the merits of the 

2 MR. SILVERBERG: Well I understand 

3 that, Your Honor. I understand that. But if I 

4 can I'll just summarize. The Lipinski deposition 

5 I haven't gone through line by line but a good 

6 part of it is objectionable from the standpoint 

7 that it's inconsistent with his original 

8 statement of the case. 

9 JUDGE SULLIVAN: Okay. What about 

10 Exhibit 00 which is InspectorD'Arcy's deposition 

11 excerpt? Do you have any objection? 

12 MR. SILVERBERG: I'm sorry. 

13 JUDGE SULLIVAN: Go ahead. 

14 MR. SILVERBE:tiG: No, we have no 

15 objection to that page. 

16 JUDGE SULLIVAN: Okay, thank you. Mr. 

17 Stevenson, turning to you what is your response, 

18 if any, to the Respondent's objection to FAA 

19 Exhibit JJ to the Respondent's cross-motion for 

20 summary judgment? 

21 MR. STEVENSON: I guess if I have to 

22 have a response I'm, I did not really hear 

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1 anything in Mr. Silverberg's statement that would 

2 constitute an objection. He, I guess, feels that 

3 Inspector Lipinski is somehow being inconsistent. 

4 I wasn't able to determine how he 

5 thinks that Inspector Lipinski is being 

6 inconsistent. He's correct that Inspector 

7 Lipinski does have a statement in his declaration 

8 about what one might expect to see as wear and 

9 tear. 

10 But I mean opposing counsel had 

11 Inspector Lipinski at a deposition. He asked 

12 Inspector Lipinski about wear and tear. I don't 

13 see anything contradictory in Inspector 

14 Lipinski's deposition testimony and his testimony 

15 in the declaration. 

16 Your Honor has the relevant parts of 

17 the declaration and I'm not sure why the 

18 Respondent having argued in its motion that, it's 

19 almost that most of the things that were wrong 

20 with this aircraft were wear and tear I don't 

21 know why the Respondent would be surprised to 

22 have the FAA expert say something about what wear 

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1 and tear would actually look like on this 

2 aircraft. 

3 JUDGE SULLIVAN: Okay. Anything else 

4 you would like to say? 

5 MR. STEVENSON: No, Your Honor. 

6 JUDGE SULLIVAN: Okay. What I'm going 

7 to do is I'm going to make a ruling on most of 

8 these exhibits and then we're going to go 

9 immediately to the FAA's motion and we're going 

10 to do the same thing on its exhibits. 

11 And then we're going to do oral 

12 arguments first on the Respondent's cross-motion 

13 and then secondly on the FAA's motion. I'll note 

14 it's about 2:15 right now. So I don't want to 

15 rush the parties but it's critical that we get 

16 through the exhibits I think. 

17 So in terms of the FAA's objections to 

18 Respondent Exhibits 3, 1R and 2R those are 

19 reserved at this time since the court has granted 

20 Mr. Silverberg on behalf of his clients until 

21 February 17, 2015, by 5:00 p.m. to provide 

22 information corroborating or stating when Mr. 

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1 Becker was identified as an expert prior to 

2 December 2015. 

3 In terms of the FAA's objections to 

4 the admissibility for purposes of today's motion 

5 to Respondent's Exhibits 6R and 7R that objection 

6 is noted. The objection is persuasive and the 

7 request to deny admission is granted. 

8 In terms of the Respondent's objection 

9 to Exhibit JJ, which was proffered by the FAA in 

10 response to the Respondent's cross-motion for 

11 summary judgment, the Respondent's objection is 

12 noted and not found to be persuasive. In essence 

13 the objection to admissibility I think would rest 

14 in terms of whether or not this particular 

15 witness qualified as an expert and demonstrated 

16 the ability to testify to certain matters. 

17 The Respondent's objections however, 

18 do not address qualification. It addresses the 

19 weight of the evidence which is a different 

20 thing. That doesn't mean that the Respondent's 

21 objections to the weight of the evidence might 

22 not be meritorious at a certain point. 

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1 But they do not substitute for 

2 objections to admissibility in this court's 

3 opinion. So Exhibit JJ is granted admissibility 

4 over the Respondent's objection. 

5 (Whereupon, the above-referred to 

6 document was received into evidence as Exhibit 

7 JJ.) 

8 Now let's talk just briefly about the 

9 exhibits in the FAA's motion for summary 

10 judgment. And to do that I just need to move 

11 some paperwork as I 'm sure both counsel are doing 

12 along with me. 

13 In terms of the FAA's motion exhibits 

14 that are identified by the FAA as Exhibits A 

15 through z, 26 exhibits mirroring the alphabet as 

16 well as AA, BB through II which are an additional 

17 nine exhibits in a motion, in its reply the FAA 

18 also identifies Exhibits pp and QQ and 

19 I incorporates by reference in its response 

20 Exhibits JJ and KK, which were filed as part of 

21 its response to FAA's, I'm sorry, to the 

22 Respondent's motion for summary judgment. 

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1 So we're going to talk about those 

2 exhibits first and we're going to hear first and 

3 foremost what objections, if any, the Respondent 

4 has to the admissibility of these exhibits. Mr. 

5 Silverberg, why don't you tell me what, if 

6 anything, you object to in terms of the exhibits 

7 identified as Exhibits A through II. 

8 MR. SILVERBERG: Yes, Your Honor, I'm 

9 sorry. 

10 JUDGE SULLIVAN: And then we'll talk 

11 about the reply exhibits separately. Go ahead. 

12 MR. SILVERBERG: Very well. Your 

13 Honor, we don't have any objection to the FAA's 

14 exhibits. We would note that many of the 

15 documents are not documents that were produced by 

16 the Respondent but rather came from the files of 

17 Capital Cargo. That's the customer for whom we 

18 changed the landing gear. 

19 And so none of those documents have 

20 been authenticated in any way. And so I would 

21 say that in terms of the FAA's reliance at some 

22 point I guess those documents would have to be 

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1 authenticated and I'm not aware that the FAA has 

2 indicated it would be calling any witnesses from 

3 Capital Cargo, although I could be mistaken about 

4 that. Mr. Stevenson will correct me. 

5 JUDGE SULLIVAN: Okay and, I'm sorry. 

6 Mr. Silverberg, do you have a list of the 

7 specific exhibits to which you're referring that 

8 you think might have authenticity problems or do 

9 you want the court to identify them based on the 

10 court's notes? 

11 MR. SILVERBERG: I 1 ll be happy to, if 

12 you would I can rattle this off for you, Your 

13 Honor. 

14 JUDGE SULLIVAN: Sure. 

15 MR. SILVERBERG: Exhibit E, Exhibit H, 

16 Exhibit K, Exhibit W, Exhibit BB, B as in boy. 

17 JUDGE SULLIVAN: Thank you. 

18 MR. SILVERBERG: That completes the 

19 list, Your Honor. 

20 JUDGE SULLIVAN: Okay. And on all of 

21 these exhibits you have identified six total they 

22 would be an objection to admissibility on the 

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1 grounds that the FAA would not be able to 

2 properly authenticate these documents. 

3 MR. SILVERBERG: That is correct, Your 

4 Honor. 

5 JUDGE SULLIVAN: Okay, let me just 

6 write that down. And let's, staying with you, 

7 Mr. Silverberg, let's just talk very briefly 

8 about the FAA's replies. Those would be Exhibits 

9 JJ, KK, PP and QQ, four in all. 

10 I know that you had already identified 

11 JJ as objectionable and had provided argument 

12 about that. If you want to adopt your argument 

13 in the earlier record for JJ here you're welcome 

14 to do so. If you have new arguments to make 

15 regarding Exhibit J J you're welcome to make those · 

16 at this time. What's your preference? 

17 MR. SILVERBERG: I'll discuss JJ in 

18 the context of the merits of the motion itself. 

19 So I'll leave it that way. With respect to the 

20 other exhibits we have no objection. 

21 JUDGE SULLIVAN: Okay. I'll simply 

22 note that the court accepts the adoption of the 

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1 earlier argument regarding the exclusion of 

2 Exhibit JJ. The court will note that it's made a 

3 ruling on that already and will maintain that 

4 ruling. JJ will come in over the Respondent's 

5 objection. 

6 However, we have not talked about the 

7 Respondent's objection yet to the FAA's Exhibits 

8 E, H, K, M, Wand BB. Mr. Stevenson, do you have 

9 a response? 

10 MR. STEVENSON: Yes, Your Honor. For 

11 that, just to make sure I heard it right that was 

12 E, H, K, M, W and BB? 

13 JUDGE SULLIVAN: Correct. 

14 MR. STEVENSON: I am puzzled by some 

15 of these. I see there are, two of these are 

16 letters from CCIA to, okay, Exhibit E is a 

17 document produced with identification by the 

18 Respondent during discovery. The Respondent's 

19 production and identification of that document 

20 are in discovery is sufficient to authenticate it 

21 at hearing. 

22 

(202) 234·4433 

Exhibit H is a letter from CCIA to 

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1 Inspector Lipinski in response to a letter of 

2 investigation sent to them. The FAA would not 

3 have to call someone from CCIA to authenticate 

4 that letter. That letter can be authenticatedby 

5 Inspector Lipinski, the recipient of the letter 

6 and that it was sent in response to him. 

7 The Exhibit K is an e-mail between the 

8 Respondent and CCIA in this case. It was 

9 produced and identified by Respondent during 

10 discovery which suffices to lay a foundation for 

11 it. 

12 Exhibit M is maintenance records that 

13 were, I believe, I know, I would have to go look 

14 at Exhibit M again. But either those were 

15 produced by the Respondent in discovery and/or 

16 were collected by the inspector during the course 

17 of his investigation into these flights and would 

18 have been sent to the inspector by CCIA in 

19 response to a request which would be sufficient 

20 to allow a foundation to be laid for them either 

21 way. 

22 Exhibit W, again, is a document 

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1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 i 

II 

I I, 

42 

produced by the, produced and identified by the 

Respondent during discovery which is sufficient 

to lay a foundation for it. Exhibit BB is, let 

me just double check. Yes, Exhibit BB is the 

letter sent by Capital Cargo to an FAA inspector, 

Bobby Evans, Inspector Evans who has been 

identified as a witness. 

If for some reason there was an 

objection to the foundation of this exhibit he 

would be able to authenticate it. And I think 

that covered all of them. 

JUDGE SULLIVAN: Yes, thank you. Let 

me ask you this, Mr. Stevenson. You have 

identified Exhibits E, K, and W definitively as 

having been produced by the Respondent during 

discovery. Do you have any idea of when those 

were produced? 

MR. STEVENSON: I would have to pick 

up a record to see exactly when they were 

produced. But these are documents that would 

have been produced early in 2014, perhaps March. 

(202) 234-4433 

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1 to turn back to Mr. Silverberg for a moment. Mr. 

2 Silverberg, let's talk first about Exhibits E, K 

3 and W, which the FAA asserts was produced by your 

4 client during discovery. Do you have any grounds 

5 not to believe that or do you wish to have the 

6 FAA provide specific dates? 

7 MR. SILVERBERG: Your Honor, I'm 

8 unable as we sit here today to know that in fact 

9 this was included within our discovery. As Your 

10 Honor is aware we've got a good number of 

11 documents in this case and I cannot from memory 

12 determine whether or not E, K and W 

13 JUDGE SULLIVAN: Correct. 

14 MR. SILVERBERG: were in fact 

15 produced by us. But on the face of them 

16 themselves they are Capital Cargo International 

17 Airline records, business records, in this case 

18 maintenance related apparently. 

19 And I don't know their exact source. 

20 Perhaps Mr. Stevenson can tell us why he's 

21 

22 

definitive about that. I'll accept anything 

that's reasonable. But I can't tell just by 

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1 looking at them. 

2 JUDGE SULLIVAN: Okay. Well let's 

3 talk then very briefly about Exhibits H and BB. 

4 The FAA has asserted that these are authentic, 

5 that the FAA is capable of authenticating them 

6 for purposes of trial. Do you have any response? 

7 MR. SILVERBERG: Well with respect to 

8 H, it's a Capital Cargo letter that was sent to 

9 Mr. Lipinski. Mr. Lipinski is going to be a 

10 witness so I would believe that they could lay a 

11 foundation on that basis he could testify that 

12 this is the correspondence he received from 

13 Capital Cargo. 

14 With respect to BB, assuming Mr. Evans 

15 is golng to testify for the FAA he's the aviation 

16 safety inspector to whom the letter, Exhibit BB 

17 was sent I would say I would offer you the same 

18 response as I did with respect to the other 

19 exhibit. 

20 JUDGE SULLIVAN: Okay, thank you. 

21 MR. SILVERBERG: That's assuming Mr. 

22 Evans is going to testify. 

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1 JUDGE SULLIVAN: What I'm going to do 

2 is this. I will note that the Respondent has 

3 objected to the admissibility of Exhibits, FAA 

4 Exhibits H, and BB on the grounds of 

5 authenticity. I will note the objection and find 

6 it unpersuasive. 

7 The FAA has asserted persuasively that 

8 it can provide authenticity to both these 

9 documents at trial. The objection, the exhibits 

10 are admitted, deemed admissible over the 

11 Respondent's objection. 

12 (Whereupon, the above-referred to 

13 documents were received into evidence as Exhibits 

14 H and BB.) 

15 In terms of Exhibits E, K, M and W, 

16 I'm golng to ask the FAA to provide, after this 

17 conference is over, more specificity about when 

18 the documents were produced by the Respondent to 

19 the FAA during the discovery proceedings in this 

20 case. We previously had talked about a due date 

21 of February, I'm sorry March 17, 2015, by 5:00 

22 p.m. for the Respondent. 

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1 Mr. Stevenson, would that same date 

2 and time work for you or do you need a different 

3 date and time for this particular supplement? 

4 MR. STEVENSON: I would not need a 

5 different date and time, however, on the 

6 possibility that this will eliminate the need for 

7 that or how Mr. Silverberg identifies things I 

8 would note that on Exhibits E, K, W, on E, K and 

9 W and let me check on M, okay, on E, K and W, the 

10 court and Mr. Silverberg will be able to see in 

11 the bottom center of the first page is a number, 

12 48,122and83. 

13 Those were the numbers that the 

14 Respondent used to identify these documents 

15 produced by the FAA. Mr. Silverberg gave me a 

16 binder with 135 numbered exhibits and these three 

17 were among them. 

18 JUDGE SULLIVAN: So on Exhibit E the 

19 first page has a number 48 which you're asserting 

2 0 was provided by the Respondent. On Exhibit K the 

21 number is 122 provided by the Respondent and then 

22 did you talk about Exhibit M, Mr. Stevenson, or 

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1 did you go straight to Exhibit W? 

2 MR. STEVENSON: I went straight to 

3 Exhibit W. But if you look at Exhibit M on the 

4 second through fourth pages you will see the same 

5 sorts of numbers, 57, 58, 59. However, the FAA's 

6 exhibit sticker for the first page of Exhibit M 

7 might be, would appear to be covering up where 

8 that number would be on that particular page. 

9 If I have the exhibit book here I 

10 might be able to determine whether, you know, 

11 that, yes, so the, I can confirm that the second 

12 through fourth pages of this exhibit were 

13 produced by the Respondent as 57, 58 and 59 in 

14 that same discovery response. The first page is 

15 not 56. So I will have to look and confirm where 

16 the first page of Exhibit M was from. 

17 JUDGE SULLIVAN: Okay, thank you. Mr. 

18 Silverberg, based on the additional information 

19 from the FAA do you have any response? 

20 MR. SILVERBERG: Well, Your Honor, I'm 

21 looking through my exhibit book as well and it 

22 appears that those numbers do suggest that it was 

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1 a, yes, an AMES produced document with the 

2 exception of the first page of Exhibit M, which I 

3 don't see I can identify quickly here either. 

4 JUDGE SULLIVAN: Okay. Then what I 

5 will do lS this. I will admit over objection FAA 

6 Exhibit E based on the FAA's further 

7 identification of this document as having been 

8 produced by the Respondent during discovery. 

9 I will admit Exhibit Kover objection 

10 for the same reason. I will also admit Exhibit 

11 M, three out of four pages. Those pages with the 

12 marking Number 57, 58 and 59, leaving the first 

13 page of Exhibit M reserved for further 

14 information to be provided by the FAA no later 

15 than March 17, 2015, by 5:00p.m. 

16 And then I will admit over the 

17 Respondent's objection Exhibit W given the FAA's 

18 representation that it was also produced by the 

19 Respondent during discovery. 

20 (Whereupon, the above-referred to 

21 documents were received into evidence as FAA 

22 Exhibits E, K, M Page 57, 58 and 59 and W.) 

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1 So let's now talk about, very briefly, 

2 the exhibits that the Respondent submitted in 

3 answer to the FAA's motion. Those exhibits 

4 number eight in total and they are identified as 

5 Respondent's Exhibits 1-8. Mr. Stevenson, 

6 starting with you. Do you have any objection to 

7 the admissibility of any of these documents and 

8 if so what are your objections? 

9 MR. STEVENSON: Well Exhibit 1 to the 

10 Respondent's opposition is again material from 

11 Mr. Becker and the FAA would incorporate its same 

12 objections about the other documents that contain 

13 opinion testimony from, if we're making 

14 objections of this nature I suppose the FAA 

15 should object to Exhibit 7 to the Respondent's 

16 answer in as much as that it also is a CCIA 

17 document. No objections to the other exhibits. 

18 JUDGE SULLIVAN: And I 'm sorry, in 

19 terms of Exhibit 7 what is the, what specifically 

20 is your objection that you did not receive it in 

21 discovery or that it is not a document that could 

22 not be authenticated? I was a little confused. 

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1 MR. STEVENSON: I'm sorry, no. This 

2 lS a document that we received in discovery. I 

3 do not, I guess the basis of the objection would 

4 be the same as opposing counsel's. The 

5 foundation for this document has not been 

6 presented. 

7 So I don't know what the foundation 

8 for that document would be or whether or not 

9 Respondent would be able to lay that at hearing. 

10 So I will make that objection as well. 

11 JUDGE SULLIVAN: Okay. Thank you. 

12 Mr. Silverberg, turning to you there have been 

13 objections raised by the FAA to Respondent's 

14 Exhibits 1, 8 and 7. Excuse me, do you have any 

15 response? 

16 MR. SILVERBERG: With respect to the 

17 Becker testimony it's the same position I took 

18 before. His qualificatiom and credentials are 

19 more than adequate to support the testimony that 

20 he offered. 

21 With respect to Exhibit Number 7, 

2 2 subject to check I believe this was a document 

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1 that we did produce, we being AMES did produce. 

2 It is a Capital Cargo record but it was produced 

3 ln the context or in the course I should say of 

4 the exchange of documents in the discovery phase 

5 and I can, I'll verify that for you, Your Honor. 

6 JUDGE SULLIVAN: Okay. 

7 MR. SILVERBERG: But I don't think I 

8 can do so now. 

9 JUDGE SULLIVAN: Okay. Would you be 

10 able to verify it by March 17, 2015, at 5:00? 

11 MR. SILVERBERG: I can, Your Honor. 

12 JUDGE SULLIVAN: So noted and so 

13 ordered. Okay. With, in terms of Exhibit 1, the 

14 Respondent's exhibit to the FAA's motion, I'll 

15 note that there were objections raised by the 

16 FAA. 

17 They were responded to by the 

18 Respondent in adopting prior arguments made by 

19 the parties in this case to Mr. Becker's 

20 testimonial. This matter is reserved pending 

21 some additional information provided by the 

22 Respondent as previously identified by the court. 

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1 And in terms of the FAA's objection to 

2 Respondent's Exhibit 7, that also is reserved to 

3 allow the Respondent an opportunity to supplement 

4 the record regardin::r when that document was 

5 produced for the FAA during discovery. 

6 Now I'll also note before we continue 

7 to argument, counsel, if you and you probably 

8 know this but if you do not the court does have 

9 an independent obligation to be a gatekeeper to 

10 the evidence and the reliability of the evidence. 

11 And there are on occasion times when the court 

12 will exercise that gatekeeping role independent 

13 of whether or not a party objects or doesn't 

14 object to evidence. 

15 So I have been looking at all of these 

16 exhibits since they have been filed and will 

17 continue to look at them before I issue a ruling 

18 for purposes of admissibility, reliability, 

19 probity and so forth and if there is an exhibit 

20 that the court on its own motion as the 

21 gatekeeper wants to address you'll see that in 

22 the court's written ruling. 

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1 Okay. Let's then talk a little bit 

2 about the argument itself and how to focus in on 

3 it given our time. There are three different 

4 regulations that have been cited against the 

5 Respondent by the FAA. 

6 And those regulations are 14 CFR 

7 145.205(a), 14 CFR 43.13 (a) and see I'm looking 

8 at all my notes, excuse me, and 14 CFR 43.13(b). 

9 So those are the three regulatory violations 

10 alleged in this case. 

11 We also have three different aircraft 

12 involved with three different maintenance dates. 

13 Aircrafts being identified as follows. N, as in 

14 Nancy, 899AA with maintenance dates of August 26, 

15 2009, for Exhibit H. 

16 Aircraft N898AA with the maintenance 

17 date of October 24, 2009, per Exhibit H. And 

18 Aircraft N287SC with a maintenance date that was 

19 either March 21, 2010, according to Exhibit U or 

20 March 22, 2010, according to Exhibit X. 

21 It looked like the date was a little 

22 flexible based on when the maintenance was done 

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1 and when the sign off was done. So it was March 

2 21, 2010, or March 22, 2010. So those are the 

3 three aircraft, three dates of maintenance. 

4 And according to the proposed civil 

5 penalty from the FAA, there was a request of 

6 $61,875 total for these three violations. My 

7 understanding from looking at the Exhibit II 

8 proffered by the FAA is that there was an 

9 allegation of three violations with each 

10 violation being assessed a mid-range of $20,625 

11 per aircraft. 

12 Mr. Stevenson, turning to you is that 

13 a correct very short summary of what the FAA is 

14 looking at, what it's charged and what it's 

15 asking for? 

16 MR. STEVENSON: Yes, with one 

17 particular thing just to make sure that the 

18 record is clear. You said a mid-range penalty. 

19 The full range, the range that I assume Your 

20 Honor is referring to the range provided in the 

21 sanctioned guidance, the full available range for 

22 this sort of violation would be moderate to, like 

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1 there's a moderate range and there's a maximum 

2 range. 

3 And for this sort of violation would 

4 cover from the bottom of the moderate to the top 

5 of the maximum. The sanction selected here is at 

6 the, for each aircraft is at the midpoint of the 

7 maximum range 

8 JUDGE SULLIVAN: Correct. 

9 MR. STEVENSON: -- rather than at the 

10 midpoint of the overall moderate to maximum 

11 range. Maybe that's too picky but I just wanted 

12 to make sure that was clear. 

13 JUDGE SULLIVAN: No, that 1 s absolutely 

14 correct and if I didn't say it that clearly I 

15 should have. So thank you. So let's talk, Mr. 

16 Stevenson, just for a moment. 

17 So essentially you're saying that 

18 these three violations are basically combined for 

19 each aircraft? 

20 MR. STEVENSON: Yes, Your Honor. The 

21 three regulations at issue are essentially all 

22 simultaneously violated by, if they did not 

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1 perform the installation for each of the landing 

2 gear in accordance with the Aircraft Maintenance 

3 Manual. 

4 Potentially you could categorize each 

5 landing gear is a distinct installation and its 

6 own act of violation with its own separate 

7 penalty. The FAA did not do that here. So just 

8 one act of violation and one penalty per 

9 aircraft. 

10 JUDGE SULLIVAN: And in terms of the 

11 violation, it appeared to me in looking at them 

12 that the primary violation or the violation with 

13 which to start oral argument would be Section 

14 145.205 because that has the most specific 

15 information about the repair station maintenance 

16 and so forth. 

17 So what I'm going to do in directing 

18 oral argument is I'm going to ask the parties to 

19 focus their primary attention on Section 145.205. 

20 You're welcome of course to also argue or talk 

21 about the elements of the other two regulatory 

2 2 sect ions. 

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1 But they do seem to be a subset of 

2 this prlmary violation. So with that, Mr. 

3 Silverberg, I'm going to go to you and I'm going 

4 to switch my documents. We started with you so 

5 let's keep with you for the time being. It's 

6 quarter to three. I just want to check in with 

7 everybody on their time. 

8 We're running a little beyond 

9 schedule. Mr. Silverberg, can you stay beyond 3 

10 o'clock today just for our purposes of argument? 

11 Mr. Silverberg? 

12 MR. SILVERBERG: Yes, I'm sorry. 

13 Could you hear me? I said I can, Your Honor. 

14 JUDGE SULLIVAN: Okay, great. And Mr. 

15 Stevenson, are you also available? I'm hoping 

16 we'll be done by 3:30, just hopefully. 

17 MR. STEVENSON: I am available, Your 

18 Honor. 

19 JUDGE SULLIVAN: Okay. Then, Mr. 

20 Silverberg, why don't you take ten minutes, if 

21 you would be so kind, and outline your primary 

22 case for your cross-motion for summary judgment 

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1 and in doing so I'm going to ask you to address 

2 something right off the bat. 

3 In your motion for summary judgment, 

4 you indicated at first in your memorandum that 

5 there were no set of facts pleaded by the 

6 Complainant that would allow it to prevail. 

7 That's on Page 1, Lines 3 to 4. 

8 And then you indicate in the following 

9 page there was no direct evidence provided by the 

10 FAA and then as you make your arguments, you kind 

11 of morph into an assertion that there were 

12 insufficient facts that would allow the court to 

13 make a finding other than to say that there isn't 

14 enough. 

15 So I wanted to get a sense from you if 

16 your argument is that there are no facts that 

17 support your motion or simply insufficient facts. 

18 Where do you land because you argue both 

19 positions? 

20 MR. SILVERBERG: I will respond to 

21 Your Honor in this fashion. 

22 

(202) 234-4433 

JUDGE SULLIVAN: Okay. 

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1 MR. SILVERBERG: We have looked at the 

2 case and in the formation of our motion for 

3 summary judgment what we paid particular 

4 attention to was the gap, the spread in time 

5 between the time in which the aircraft were, main 

6 landing gear changes were accomplished or the 

7 aircraft were returned to service and the time 

8 that the FAA came upon the aircraft quite some 

9 months later, depending on the aircraft. 

10 And we included in our motion the 

11 statistics that with respect to aircraft N899AA 

12 that aircraft had actually flown 784 flights, 

13 excuse me, after the main landing gear were 

14 replaced by the AMES facility. With respect to 

15 N898AA the aircraft flew 628 flights in a gap of 

16 approximately 230 some days. 

17 And with respect to aircraft N2 8 7 SC 

18 there were 172 flights over the course of about 

19 60 some days. 

20 JUDGE SULLIVAN: And I made notes of 

21 all of those, all of that information in your 

22 argument. 

(202) 234-4433 

Thank you. 

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1 MR. SILVERBERG: So what we're 

2 confronting, Your Honor, and what we're trying to 

3 explore in our motion is the fact that while we 

4 certainly have a great deal of argument and 

5 exhibits, the fact is that with respect to how 

6 the FAA has framed its case based on the 

7 complaint, based on the documents on which it 

8 said it is relying for purposes of presenting and 

9 supporting these allegations of violations that 

10 is the EIR itself. 

11 Exhibit 1 to our motion consists of 

12 that lengthy inspector's report that outlined 

13 that case. We had a substantial gap in time. We 

14 had cumulatively over 1,580 some flights. 

15 We had two relatively over 3,160 

16 movements of the landing gear and given this 

17 intervening operations with intervening 

18 maintenance having occurred what our position was 

19 and is, is that the evidence presented in the EIR 

20 simply made the calculation that we found it this 

21 way on May 25, 2010. It all relates back to the 

22 condition it was in at the time AMES completed 

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1 the work. 

2 We're calling it AMES it's just a 

3 repalr station and is not the operator of the 

4 aircraft. So we have the, we're confronting what 

5 we believe lS the critical lack of any attempt by 

6 the FAA to take into account and present as it 

7 must in its affirmative case information that 

8 would allow one to conclude there's a direct 

9 evidentiary line from May 25, 2010, back to those 

10 much earlier dates when AMES completed the work 

11 that it was contracted to do with respect to the 

12 changing out of the landing gear. 

13 It's very important to note that the 

14 FAA inspector who wrote this case up when he 

15 decided the question of bias and prejudice the 

16 FAA inspector that wrote this case up simply 

17 ignored the critical importance of this 

18 intervening operations and maintenance period. 

19 And I would suggest to Your Honor that in 

20 rebuttal it's much too late for them to have now 

21 gotten on the bandwagon and tried to show 

22 something about the evidence that they think 

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1 allows them to relate it back to the original 

2 condition of the aircraft. 

3 The case law is clear. If you're 

4 going to rely on substantial evidence it's got to 

5 be carefully scrutinized and it's got to be 

6 sound. In this case the FAA in its case-in-chief 

7 in its EIR which contains all of the documents 

8 they say they're relying upon never even 

9 addressed the question of this intervening 

10 maintenance, intervening operations and resulting 

ll in normal wear and tear. 

12 They didn't get to that. They didn't 

13 make that an affirmative part of this case. They 

14 had the burden of proof as you know, Your Honor, 

15 under 13.224 and 222 and 224 reliable, probative, 

16 substantial evidence. They presented nothing. 

17 They simply sort of presented their 

18 case on the following basis. If this, then that. 

19 But that's not the case law. That doesn't get 

20 them to where they need to be in order to prove 

21 their case. 

22 

(202) 234-4433 

Having ignored the question of the 

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1 intervening ops and maintenance, having ignored 

2 or just denied wear and tear could play any role 

3 in this whatsoever even after, as I said, over 

4 3,160 manipulations, if you will, of the landing 

5 gear is just not the quality of evidence that 

6 will support a finding of a violation. 

7 And that's critical here because as 

8 they say coming upon that issue after they've put 

9 together their case, after they get this late 

10 awareness of the importance of establishing the 

11 quality of their circumstantial evidence as 

12 opposed to just ignoring it which is what they 

13 did, they have a defective case which in our 

14 judgment warrants a motion or a granting of our 

15 motion and the denying of the FAA motion. 

16 JUDGE SULLIVAN: Well, I'll 

17 MR. SILVERBERG: To be sure 

18 JUDGE SULLIVAN: hear the motions 

19 separately and I'm required to do so. So I 

20 understand that there are two cross-motions. But 

21 for the purposes of your argument and you'll get 

22 another time to argue when we talk about the 

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1 FAA's motion. 

2 Is there anything else that you would 

3 like to add in support of your client's motion 

4 for summary judgment on its own behalf? 

5 MR. SILVERBERG: That's part of it, 

6 Your Honor. There is another sub-element here. 

7 It was certainly given a lot of attention by the 

8 FAA in its EIR documents. And that is the 

9 contention that and this goes to the section 

10 alleged violation 145.205 (a) that you referenced, 

11 Your Honor. 

12 And that is whether or not AMES 

13 properly followed the Airplane Maintenance Manual 

14 that would be applicable in this situation when 

15 it referred and relied upon and signed off work 

16 in accordance with the specific sub, excuse me, 

17 cross referenced step ln the maintenance 

18 procedure in the AMM 321100 where you get to the 

19 step where you reinstall the flying door and then 

20 re-rig the door. 

21 Again, we're just reinstalling a door 

22 that had previously been installed. 

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The FAA has 

(202) 234-4433 
65 

1 asserted that you would go from 321100 to 

2 331211401, the Boeing Maintenance Manual refers 

3 the mechanic except 5 AL19 to 321211501 and 

4 that's what we did. 

5 Now I'm not sure frankly, Your Honor, 

6 whether or not the FAA is still making that 

7 argument or not. It was not part of their motion 

8 but it does go to the question of whether or not 

9 we followed the AMM as required by 145.205 which 

10 lS the 145 being the regulations applicable to a 

11 repair station such as AMES. 

12 And so there is that element to our 

13 motion as well. We also, you know, as alluded to 

14 before we believe it's the FAA's burden to come 

15 forward with the facts and as I sat, their case16 in-chief is written up by their inspector and as 

17 testified to by their inspector simply ignored 

18 the impact of those intervening operations and 

19 maintenance. 

20 We've been alleged to have failed to 

21 perform the work properly because at some point 

22 after we completed the landing gear change on 

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1 N287SC there was a component known as a tubular 

2 bearing which was found to be missing as a result 

3 of a subsequent inspection of the aircraft. The, 

4 we have addressed that in our motion as well and 

5 that's been initiated as in the response by the 

6 Complainant. 

7 But to the extent that goes to whether 

8 or not we followed the AMM with respect to the 

9 insertion of the tubular bearing at the point 

10 we're instructed to do so we have presented 

11 evidence, Your Honor, that the tubular bearing 

12 was inserted at the time. Mr. Becker testified 

13 that he spoke with the mechanic and he believes 

14 that was the case. 

15 Your Honor has ruled that Exhibit, I 

16 think it was 6 which is not admissible and we 

17 honor your ruling on that. But there was still 

18 testimony from Mr. Becker that based on his 

19 inquiry of the technician that the tubular 

20 bearing was inserted. 

21 Perhaps more importantly replacing all 

22 doors of these aircraft, including N287SC the 

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1 step in the process that includes the rigging of 

2 the so-called flying door is the so-called gear 

3 SWlng. The aircraft is on jacks and the 

4 aircraft, the gear are actually retracted and the 

5 doors close and then you check to see how well 

6 the door is faired. 

7 All of that was done by AMES on all 

8 three aircraft and the original work packages 

9 would show that. The inspection was conducted 

10 with the benefit of an inspector also reviewing 

11 work of the technician at the time. 

12 And then there's reference in a 

13 document that refers to the fact that the gear 

14 swings were themselves witnessed by the customer, 

15 Capital Cargo in this case. And with respect to 

16 the aircraft where the tubular bearing was 

17 missing that's N287SC, there's actually an 

18 exhibit to show that Capital Cargo complimented, 

19 excuse me, complimented AMES on the completion of 

20 the work on that aircraft when it was turned back 

21 over to them. 

22 The aircraft in every case or put it 

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1 differently there is no indication that we got 

2 any responses back from Capital Cargo regarding 

3 the work we performed with respect to 

4 reinstalling or installing the new landing gear 

5 and reinstalling the flying doors. 

6 And so to the extent that the tubular 

7 bearing seems to be a point that the FAA is 

8 pointing to as evidence and proof that we didn't 

9 do the work in accordance with the applicable 

10 manual, we are suggesting that in fact there is 

11 enough evidence that rises well above the level 

12 of speculation as they claim for the tubular 

13 bearings that have gone missing at a subsequent 

14 point in time when one particular tire, the 

15 Number 4 out wheel tire was changed a few days 

16 after we completed our work. 

17 And it's in the realm of possibility 

18 not just mere speculation that at that point the 

19 tubular bearing may have gone missing. 

20 JUDGE SULLIVAN: Okay. Mr. 

21 Silverberg, you are a little over time. Do you 

22 want to take the next two minutes and wrap up and 

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1 then I'll turn to Mr. Stevenson? 

2 MR. SILVERBERG: Well, I'll withhold 

3 any argument I have with respect to rebuttal to 

4 his case. So let me if I can, Your Honor --

5 JUDGE SULLIVAN: I'll give you a 

6 chance for a five minute reply in this motion and 

7 then I'll also give you time to do your answer to 

8 his motion. So you'll have some time. But for 

9 the purposes of your original motion do you have 

10 anything else you would like to add to your 

11 primary argument? 

12 MR. SILVERBERG: Well, Your Honor, I 

13 just want to emphasize that it's obvious that the 

14 FAA's view of the case doesn't take into account 

15 correctly the applicable case law. They ignored 

16 the issue of the intervening maintenance and 

17 operations. 

18 They ignored the requirement to make 

19 some, to tie somehow on an evidentiary basis that 

20 what was going on much earlier and that which 

21 they claim they discovered at a much later point 

22 in time. 

(202) 234·4433 

And to the extent that the Lipinski 

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1 declaration now tries to backfill that we'll 

2 address that after we hear from the FAA. 

3 But that declaration is, dare I say a 

4 dollar late and a day short or a, excuse me, a 

5 day late and a dollar short. But it's actually 

6 more than a day late. It's closer to five years 

7 late. 

8 He's now opining about things that 

9 occurred almost five years ago. This inspection 

10 was on May 25, 2010. He's submitting an 

11 affidavit in late February or early March of 2015 

12 trying to put an entirely different gloss on the 

13 case, if you will. 

14 And it's, in our judgment, it's way 

15 too late for that for the party that has the 

16 affirmative case, the affirmative burden to come 

17 forward with the evidence to support its position 

18 not now but when they first presented the case in 

19 the EIR. 

20 JUDGE SULLIVAN: Okay. Thank you very 

21 much, Mr. Silverberg. Mr. Stevenson, as the 

22 responding party to the Respondent's motion for 

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1 summary judgment would you like to take five to 

2 ten minutes in your answer? 

3 MR. STEVENSON: Yes, Your Honor. Mr. 

4 Silverberg in here and in his motion talks a lot 

5 about the number of flights. The problem seems 

6 to be that the Respondent presents the number of 

7 flights without any discussion of why that's 

8 significant or how it would be significant. 

9 There's no presentation from the 

10 Respondent or discussion of what kind of problems 

11 one would normally expect to arise, if any, on 

12 this part of an aircraft. During that time frame 

13 and I mean there's always time that, almost 

14 always there is going to be time that has elapsed 

15 between when maintenance is done and the FAA 

16 finds it because we're generally not there 

17 watching the, an individual when they're 

18 improperly performing maintenance. 

19 And if we are then generally we say 

20 something. And since they never returned it to 

21 service it's not actually going to be a 

22 violation. 

(2021 234-4433 

But as Inspector Lipinski more 

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1 specifically said in his declaration this is not 

2 a part of the aircraft that you would typically 

3 expect to have problems arise. 

4 And it's, I mean to some extent the 

5 Respondent is kind of in a position of trying to 

6 analyze, to make an analogy to something we're 

7 more familiar with like a car there's a dent in 

8 the door of my car. And I look at it and I say 

9 wow, somebody must have run into my car. 

10 There's a big dent there now. And 

11 then the Respondent is asking the question well 

12 why didn't you address whether or not that dent 

13 was wear and tear? Well there's no reason for 

14 the inspector in the EIR to have addressed 

15 whether or not these were routine wear and tear 

16 because these are not the sort of a problem that 

17 arise through routine wear and tear on this 

18 aircraft. 

19 We're not talking about minor cosmetic 

20 imperfections. There were things that the 

21 aircraft, that were wear and tear and so the FAA 

22 didn't cover them in the motion. 

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The Respondent 

(202) 234-4433 
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1 actually mentioned some of them but like torn 

2 seals or missing fasteners. 

3 But there are, you know, multiple 

4 cracks in various components. There are, you 

5 know, hinge pins that aren't properly secured. 

6 There are lines that aren't properly routed and 

7 clamped. 

8 The Respondent even wrote up, in his 

9 own after the fact inspection of the aircraft 

10 they wrote up multiple instances of things that 

11 weren't installed correctly. Now I understand 

12 that the Respondent for litigation purposes has 

13 now said that it's not responsible for those. 

14 But the Respondent did not until this 

15 litigation began, ever assert and I include the 

16 informal conference in that. They asserted this 

17 at the informal conference. So it's not like it 

18 only came up after the complaint was issued that 

19 these were wear and tear. 

20 But contrary to the Respondent's 

21 assertion in its motion for summary judgment, the 

22 Respondent did not in its letter of response ever 

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1 say anything about this being wear and tear nor 

2 did CCIA. Those letters are in evidence. Your 

3 Honor can look at them. 

4 Inspector Lipinski and the FAA did not 

5 as Respondent suggests ignore the passage of time 

6 or ignore wear and tear. Those things were 

7 things that the FAA was aware of and that were 

8 not pertinent. These were not wear and tear. 

9 So, no, Inspector Lipinski in his EIR 

10 did not affirmatively say just in case anybody 

11 was wondering if the Respondent suddenly decides 

12 to argue that these were wear and tear just so 

13 you know they're not wear and tear. 

14 There was no reason for him to mention 

15 that at any point in time until we got involved 

16 in the litigation process in this case because 

17 nobody else had ever made the suggestion that, 

18 you know, gouges in the side, you know, gouges in 

19 the wing or gouges in the flying door or cracked 

20 stiffeners or cracked hinge covers or cracked 

21 bushings were, you know, were normal wear and 

22 tear as the Respondent has now asserted during 

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1 litigation. 

2 The FAA, I would also note just 

3 procedurally the Respondent errs in attempting to 

4 equate what is written in the EIR with what the 

5 FAA's ultimate burden of proof is. The FAA's 

6 ultimate burden of proof as stated now or at 

7 hearing there isn't some sort of prohibition that 

8 if we didn't explicitly rebut a defense in 

9 Section D of the EIR that it somehow stands 

10 automatically at hearing. 

11 With regards to the tubular bearing on 

12 287SC and also the two gear fittings that there 

13 were, well I'll talk about 287SC because that's 

14 the motion that we're talking about. The 

15 Respondent's total evidence of this is literally 

16 Mr. Becker and this is one of the things I 

17 referenced because he does not work with these 

18 aircraft on a daily basis. 

19 He does not know about them. He 

20 talked to someone else at AMES who had talked to 

21 someone at CCIA who said that sometimes he had 

22 seen some guys doing some improper maintenance on 

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1 some aircraft, not these aircraft but just some 

2 sort of aircraft. 

3 And the Respondent and that's it. 

4 That's the totality of the Respondent's response 

5 on this missing tubular bearing from 287SC. 

6 Respondent in its motion describes this as a 

7 "shortcut", which makes sense I guess. You have 

8 to come up with some sort of motivation for why a 

9 mechanic would be improperly doing this 

10 maintenance in the, would be improperly doing 

11 this tire change. 

12 The problem is as explained in more 

13 detail in the brief, is that it's not a shortcut. 

14 This tubular bearing was part of a gimbal fitting 

15 that has a whole stack of different kinds of 

16 washers, has to be shinned to I think tenths or 

17 hundredths of an inch. 

18 If you were to change the tire by 

19 disassembling the gimbal fitting you would have 

20 to manually hold up the flying door when you were 

21 doing it. The proper procedure, which both 

22 parties submitted into evidence, literally just 

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1 requires popping out two bolts and moving the 

2 door up a couple of inches and then you pop one 

3 of those bolts back in because there's a 

4 dedicated servicing position for that door. 

5 And the Respondent's reference to it 

6 as a shortcut I think comes from the game of 

7 telephone that Mr. Becker was playing trying to 

8 come up with an explanation for this because Mr. 

9 Becker references this section of the manual that 

10 talks about the actuation rod attachment bolt. 

11 Respondent in his brief talks about the actuation 

12 rod attachment bolt. 

13 The actuation rod attachment bolt is 

14 at the other end of the actuation rod. That is 

15 something that still wouldn't make a lot of sense 

16 for a mechanic to change it that way. But it 

17 makes a lot more sense than the disassembling the 

18 gimbal fitting. 

19 The Respondent, Mr. Silverberg just 

20 now said it is in the realm of possibility that a 

21 mechanic might have done this wrong. And I think 

22 that Mr. Hanser in his report said this isn't 

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1 necessarily the case that Respondent did this 

2 wrong. 

3 The FAA's burden is not to prove its 

4 case to a metaphysical certainty. There is, even 

5 if Your Honor admits Mr. Becker's thirdhand 

6 opinion on this subject that would fall into the 

7 category of a scintilla of evidence, that is 

8 insufficient to preclude summary judgment because 

9 no reasonable finder of fact on that basis could 

10 conclude in favor of the Respondent. 

11 And finally I would note that while 

12 the Respondent relies on, wants to rely on CCIA' s 

13 e-mails on the day that the Respondent gave the 

14 287SC back to CCIA on that day CCIA said hey, it 

15 looks like you did a great job. But that ignores 

16 the fact that CCIA actually having had the chance 

17 to look more into it condemned the Respondent's 

18 work. 

19 Just well I'm not asking Your Honor to 

20 consider R6 I would note that, you know, opposing 

21 counsel rebutted that CCIA never came back to 

22 them and said something to the contrary. But 

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1 they did. 

2 They did it in Exhibit R6 which, 

3 that's the whole reason why there is a 

4 discrepancy notice. But even without going into 

5 that --

6 JUDGE SULLIVAN: And I'm sorry. The 

7 R6, what are you saying specifically because 

8 that's essentially the manual section in this 

9 motion? 

10 MR. STEVENSON: It was marked as 

11 Exhibit 6 to the Respondent's reply which I 

12 thought we had relabeled as R6. 

13 JUDGE SULLIVAN: Excuse me. 

14 MR. STEVENSON: AMES discrepancy 

15 notice and CCIA corrective action record for 

16 tubular bearing. 

17 JUDGE SULLIVAN: Right. But, Mr. 

18 Stevenson, the admission of that document was 

19 denied. 

20 MR. STEVENSON: Okay. Well then I, 

21 but I would finally note that Exhibit H which was 

22 the CCIA response letter CCIA having had the 

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1 opportunity to fully discuss the situation with 

2 the Respondent and having --

3 JUDGE SULLIVAN: Exhibit H was not 

4 proffered by the FAA in its answer to the 

5 Respondent's motion. We're dealing solely with 

6 the FAA's answer and the exhibits to the answer 

7 to this motion. 

8 And I will get to your exhibits which 

9 includes Exhibit H in your motion for summary 

10 judgment separately. 

11 MR. STEVENSON: I apologize for that, 

12 Your Honor. I will simply note that Respondent's 

13 representation that CCIA never responded in any 

14 way critical about its handling of 287SC is 

15 inaccurate and I think that's probably enough of 

16 your time. 

17 JUDGE SULLIVAN: Okay, thank you very 

18 much. Mr. Silverberg, you may take five minutes 

19 or less in your reply on this motion and then 

20 we'll got to other --

21 

22 Honor. 

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MR. SILVERBERG: Very well, Your 

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1 JUDGE SULLIVAN: Yes. 

2 MR. SILVERBERG: Thank you, Your 

3 Honor. 

4 JUDGE SULLIVAN: You're welcome. 

5 MR. SILVERBERG: Okay. With respect 

6 to the, with respect to 2 8 7 SC, I have to be brief 

7 but there are other factors on which we relied to 

8 support our position that the tubular bearing had 

9 gone missing after we completed our change. 

10 And we supported our position by 

11 noting that there is a specific Boeing warning 

12 for the proper way in which to move the flying 

13 door out of the way in order to facilitate other 

14 maintenance. 

15 And we suggest, Your Honor, that the 

16 reason Boeing had to put that in is because in 

17 fact there were instances where mechanics were 

18 not doing it the right way resulting in cracked 

19 hinges. And in fact we saw some cracked hinges -

20 

21 

22 

JUDGE SULLIVAN: I 'm sorry. I 'm going 

to interrupt you. Who is testifying to this in 

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1 your material? 

2 MR. SILVERBERG: Mr. Becker. 

3 JUDGE SULLIVAN: And where exactly is 

4 that? 

5 MR. SILVERBERG: It's in Mr. Becker, 

6 that's in his deposition testimony. That would 

7 be, Your Honor, in our exhibit on our motion and 

8 I guess it's Exhibit 1, well maybe Exhibit 2, 

9 Your Honor. 

10 JUDGE SULLIVAN: Well Exhibit 2 is 

11 Inspector Lipinski's deposition in your 

12 MR. SILVERBERG: I'm sorry. It's 

13 Exhibit 3, Your Honor. 

14 JUDGE SULLIVAN: And in Exhibit 3 , 

15 where is Mr. Becker testifying to what Boeing did 

16 or did not think or do and under, and how does he 

17 know that? 

18 MR. SILVERBERG: Well, the note itself 

19 lS in an AMM section of the record. He testified 

20 to this at his deposition. He was asked 

21 questions directly about this by counsel for the 

22 FAA. 

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1 JUDGE SULLIVAN: Well I understand 

2 that. I'm asking you if you would be so kind as 

3 to point to the court where in your Exhibit 3 

4 does that testimony occur so that you make that 

5 argument to me now. 

6 MR. SILVERBERG: Your Honor, I would 

7 appreciate 

8 JUDGE SULLIVAN: Yes , if you don ' t 

9 have it at your fingertips I will ask you to add 

10 that to your to do list for March 17, 2015. 

11 MR. SILVERBERG: Right. I'm looking 

12 now for the exact reference to the page numbers 

13 that we cited to because I don't want to hold you 

14 up and I want to get to the other points as well. 

15 JUDGE SULLIVAN: Okay, yes. 

16 MR. SILVERBERG: So I will, I'll, the 

17 fact that there was the statement made that well 

18 we didn't have to address wear and tear in our 

19 materials in our EIR and I have to categorically 

20 reject that notion. When you have an inspection 

21 of aircraft that is so distant in time from the 

22 point at which the maintenance was in fact 

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1 performed, the FAA is obviously on notice that 

2 it's going to have to substantiate the 

3 circumstantial evidence on which it's going to 

4 rely. 

5 They have done, they ignored the issue 

6 entirely. And the answer is well we did that 

7 because it's unlikely or something to that 

8 effect. That ignores reality. These aircraft 

9 are out in line operations and operated on 

10 thousands of flights. 

11 And to suggest that you're going to 

12 see the same pristine condition you may have seen 

13 the flying doors and the landing gear in so many 

14 days, months, almost years later is blinking at 

15 reality. And so it was their burden to come 

16 forward with its case-in-chief in documentary 

17 materials that would be presented in the EIR 

18 which are the only documents the FAA says they're 

19 seeking to rely upon. 

20 And so that is a critical element of 

21 the case which the FAA must present but did not 

22 present with respect to whether or not the wear 

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1 and tear was attributable to our actions or 

2 regular operations, again we have extensive 

3 testimony from Mr. Becker that the maintenance 

4 that was required by way of collective action, 

5 putting aside the FAA's vastly incorrect 

6 interpretation of our maintenance records, 

7 records that Mr. Becker himself was responsible 

8 for as the Quality Assurance Director was all of 

9 a minor nature meaning there were occasionally a 

10 missing rivet I think that Mr. Stevenson might 

11 have suggested. 

12 That' s to be expected. There were 

13 some gouges that had to be, if you will, buffed 

14 out. Just a matter of roughing up the surface 

15 and doing a little repainting. To the extent 

16 that there were any, there's any evidence of 

17 anything that was broken or damaged there's again 

18 no evidence that the materials or the elements 

19 that were observed in some sort of discrepant 

20 condition were also in that same condition when 

21 the aircraft were subject to the main landing 

22 gear change 

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1 reinstalled. 

2 JUDGE SULLIVAN: Okay, Mr. 

3 MR. SILVERBERG: Again it's --

4 JUDGE SULLIVAN: I'm going to have to 

5 stop you because we're running out of time. Do 

6 you have one, anything else that you would like 

7 to say in one minute or less? 

8 And I can assure you and Mr. Stevenson 

9 that I've read every single piece of paper both 

10 of you have submitted. So I 'm aware of these 

11 arguments. 

12 MR. SILVERBERG: Well I understand 

13 that, Your Honor. I appreciate the time you've 

14 put into this for sure and I can certainly tell 

15 from your questions that you've done that. 

16 I just, I would just prefer to have 

17 you focus on the fact that when the FAA comes in 

18 so late in the case and in an affidavit in a 

19 rebuttal type of document seeking to introduce 

20 new arguments or factual information through a 

21 declaration that wasn't previously addressed at 

22 all by the FAA, that under those circumstances 

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1 that this new argument shouldn't be permitted, 

2 number one. 

3 And number two, it's simply too late 

4 in the game for them to do so. 

5 JUDGE SULLIVAN: Thank you very much, 

6 Mr. Silverberg. I'm going to take a breath as I 

7 think everybody has a right to do at this point. 

8 I'm going to change all of my materials over so 

9 that I have before me FAA's motion for summary 

10 judgment. 

11 And what we're going to do now is 

12 we're going to, I'm going to give Mr. Stevenson 

13 ten minutes to present his primary arguments on 

14 behalf of his clients. I'll give the Respondent 

15 ten minutes to present his answer on behalf of 

16 himself and then I will give Mr. Stevenson the 

17 right of final reply of five minutes. 

18 And that should take us very close to 

19 about 4 o'clock. But before four and then we 

20 should be done. So, Mr. Stevenson, are you 

21 ready? Do you have all of your materials before 

22 you for this? 

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1 I'll note that I haven't heard from 

2 Mr. Stevenson yet so I'll presume he's still 

3 looking at his materials. 

4 MR. STEVENSON: I'm sorry. I said, 

5 yes, Your Honor. But I heard a loud ruffling of 

6 papers. I wasn't sure that everyone was ready. 

7 JUDGE SULLIVAN: Okay. Before you 

8 start, Mr. Silverberg, do you have all of your 

9 papers ready to go so that we don't jump ahead 

10 without you? 

11 MR. SILVERBERG: I think they're all 

12 now within arm's reach. 

13 JUDGE SULLIVAN: Okay. Mr. Stevenson, 

14 you have ten minutes or until 3:35 according to 

15 my clock. 

16 MR. STEVENSON: I'm mindful that Your 

17 Honor has already read everything in the briefs. 

18 I would, for purposes of summary judgment I would 

19 divide the problems of these aircraft into four 

20 categories. 

21 The first of those is categories where 

22 Respondent's own documentation indicates that 

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1 things were done incorrectly but the Respondent 

2 simply asserts that it was not responsible for 

3 that. The first and the most trivial of those is 

4 the gear fittings. 

5 Mr. Becker said, sorry not the gear 

6 fitting, the flap track fairings one of these had 

7 cracks in the stiffeners. Mr. Becker said well 

8 we didn't do anything with the fairings. But the 

9 manual section that we're talking about here 

10 which is Exhibit C specifically talks about 

11 removlng and reinstalling that. 

12 The cracks I would hope were not 

13 present at that point in time. But that I think 

14 it's helpful when we're looking at the two that 

15 are more important in this category which are 

16 these improperly routed and clamped hydraulic 

17 lines and the improperly secured hinge covers. 

18 JUDGE SULLIVAN: I'd like to stop you, 

19 Mr. Stevenson, if I may. And I'm going to ask 

20 you one or two questions if I, if you would be so 

21 kind. 

22 Let's talk about what I consider or 

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1 have tagged to be the primary regulation of the 

2 three that have been charged against this 

3 business. That being 145.205. 

4 MR. STEVENSON: Yes. 

5 JUDGE SULLIVAN: Under this particular 

6 document under Subsection A, as in apple, it 

7 appears that most of it is not in dispute by 

8 anyone. There appears to be no dispute that the 

9 Respondent for the certified repair station 

10 performing maintenance for an air carrier that 

11 was identified and used with the initial CCIA 

12 that the CCIA business had a continuous air 

13 worthiness maintenance program under Part 121 and 

14 that the Respondent as its mechanical operator 

15 was required to follow CCIA's programs and the 

16 applicable sections of this maintenance manual. 

17 And the maintenance manual, as everybody agrees, 

18 was the Boeing maintenance manual for these 727s. 

19 And the core issue under 145.205 (a) 

2 0 was whether or not there had been a lack of 

21 observance by the Respondent to the applicable 

22 sections of the Boeing's maintenance manual. 

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1 Would you agree or disagree that it is the heart 

2 and soul of this particular regulation? 

3 MR. STEVENSON: Yes, Your Honor. I 

4 would agree that the ultimate primary dispute is 

5 whether or not the Respondent followed the AMM. 

6 JUDGE SULLIVAN: Okay. Then let's 

7 take a look at Exhibit HH. The FAA's in its 

8 primary motion. This is a two page letter dated 

9 March 21, 2011, on Respondent letterhead signed 

10 by its Director of Quality Assurance and Training 

11 that appears to admit on its face a violation of 

12 Section 145.205. 

13 And in this letter which is made by a 

14 party representative in his official capacity in 

15 response to an FAA investigation, this individual 

16 states in writing in response to the 

17 investigative inquiry that he is adopting by 

18 reference the CCIA' s corrective action report and 

19 the letter sent by CCIA to the FAA that was dated 

20 October 25, 2010. 

21 And if I review those documents which 

22 are Exhibits H, 0, U there appears to be a 

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1 finding over and over again by CCIA attributing 

2 fault to the Respondent for improper maintenance 

3 and for failure to comply with CCIA' s Maintenance 

4 Manual in the sections of the Maintenance Manual. 

5 And in fact HH appears to say that 

6 there was a very detailed investigation launched 

7 by the Respondent in addition to the 

8 investigation launched by CCIA and that 

9 corrective actions were going to be taken and no 

10 further problems would occur from this 

11 Respondent. 

12 Why isn't this evidence in and of 

13 itself, in your opinion, enough? 

14 MR. STEVENSON: I would agree with 

15 Your Honor that the Respondent in HH and the 

16 documents that you referenced that the Respondent 

17 does admit the violations here. I think the 

18 parties discussed that in our briefs and I 

19 figured that Your Honor can read those letters as 

20 you obviously have. 

21 But I would agree that these are in 

22 and of itself for the court to enter judgment in 

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1 favor of the FAA. 

2 JUDGE SULLIVAN: There is in the 

3 Respondent's responsive materials to your motion 

4 for summary judgment an assertion at least by Mr. 

5 Becker and assuming that any of Mr. Becker's 

6 testimony comes in or that all of it comes in, 

7 make either assumption, why wouldn't that be a 

8 sufficient response to defeat your motion for 

9 summary judgment? 

10 Why would that be not enough in your 

11 opinion? 

12 MR. STEVENSON: Specifically regarding 

13 these letters or regarding the case generally? 

14 JUDGE SULLIVAN: Regarding the 

15 materials that you and I have just specifically 

16 discussed that have been presented by the FAA in 

17 support of summary judgment. 

18 MR. STEVENSON: I, there, I know that 

19 Mr. Becker and I'm not positive if there's a 

20 section you wanted me to address of Mr. Becker's 

21 testimony. I know in his deposition he basically 

22 said that I'm not sure I wasn't by writing all 

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1 these references I wasn't actually intending to 

2 convey that I really wanted the inspector to 

3 believe the documents I was referencing him to. 

4 So in general I don't believe, a party 

5 cannot create a triable issue of material fact 

6 simply by asserting that it's prior statements 

7 don't count, that while generally if there's, you 

8 know, if the two sides are presenting conflicting 

9 evidence that would create a genuine issue, but 

10 not in the case of a party that is essentially 

11 trying to reverse its own statements. 

12 JUDGE SULLIVAN: Let me ask you 

13 another question. And this is about the civil 

14 penalty that the FAA has proposed. Your 

15 complaint, I'm going to work my way back through 

16 your complaint. Give me a minute to do that. 

17 Your complaint which is the document 

18 by which we all must follow, you indicate in 

19 Sect ion 4, I 'm sorry, Paragraph 4, excuse me, 

20 Section 2, Paragraph 4 that the complaint rests 

21 on the allegation that the Respondent replaced 

22 both main landing gear doors on all three 

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1 airplanes that both parties have talked about in 

2 the discussions we've had this afternoon. 

3 And yet your argument for the civil 

4 penalty asserts that instead of using the 

5 moderate range according to FAA Order 2150 .B, 

6 this case should move into the maximum range 

7 because both doors were replaced on each plane. 

8 And it seems to me that you are making 

9 an argument that is difficult for the court to 

10 accept assuming the court agrees with you that 

11 summary judgment should be granted because you're 

12 arguing that the act of the violation itself 

13 should be an aggravating factor. And I'm 

14 wondering if you have any authority for that kind 

15 of argument. 

16 MR. STEVENSON: Well with all respect 

17 I would disagree with the notion that the mere 

18 fact that there was a violation is the 

19 aggravating factor. Any time we are looking at a 

20 case there is, like the facts and generally the 

21 facts and circumstances surrounding the violation 

22 are going to take place. 

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2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

II 

96 

So a Respondent might be doing a 

particular kind of maintenance and do it 

improperly. But there are many different ways in 

which a Respondent might do maintenance 

improperly and many different circumstances under 

which that might occur. 

And in every case the act of violation 

is still going to be whatever the improper 

maintenance was that they did. We wouldn't, 

we're not here saying you messed up these things 

on the right hand side of N899AA. We just say 

you did the maintenance improperly. 

So I, but I don't, but digging down 

into the particular circumstances of the 

violation is not, I don't think the same thing as 

just saying there was a violation therefore 

that's an aggravation here. If, in this case if 

they had messed up once on one installation on a 

particular aircraft that would still have been a 

violation of the same three regulations. 

But the facts and circumstances of 

that violation would be different than either the 

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1 situation here where there were errors on both 

2 sides of the aircraft which as I noted under our 

3 sanctioned guidance could arguably be treated as 

4 two independent acts of violation each that we 

5 were looking at their own penalty. 

6 Now our conclusion in this case was 

7 that would be too much, that would be overkill 

8 and so we didn't analyze it that way. But the 

9 fact that there are, it's two different 

10 installations on the one aircraft can be applied 

11 as an aggravating factor as part of the facts and 

12 circumstances of the case which is not simply the 

13 fact that there was a violation. 

14 JUDGE SULLIVAN: But that's a 

15 subjective interpretation, is it not of 2150.B? 

16 MR. STEVENSON: I don't believe so. 

17 Your Honor, no, I would say that's, I don't think 

18 that's a subjective interpretation of 2150. I 

19 think it's what the 2150 says and --

20 JUDGE SULLIVAN: I'm saying, you're 

21 saying that you're taking, you're asserting that 

22 there was an aggravation because of how you read 

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1 certain language in 2150.B. There's nothing in 

2 2150.B that specifically says that this type of 

3 factor should be an aggravating factor. 

4 MR. STEVENSON: There's a general 

5 assertion that the facts and circumstances of the 

6 situation should be considered and there's some 

7 more detail in that note. But there is no 

8 specific language that would say that one of 

9 these facts and circumstances might be a number 

10 of things you're lumping in one act of violation. 

11 JUDGE SULLIVAN: Okay, thank you. Mr. 

12 Stevenson, in the interest of time I'm going to 

13 basically turn to Mr. Silverberg and then you'll 

14 have a right of final reply. 

15 MR. STEVENSON: Thank you, Your Honor. 

16 JUDGE SULLIVAN: You're welcome. Mr. 

17 Silverberg, let's talk about Exhibit H in your 

18 response and why shouldn't the court picking up 

19 on the inquiry that was started with Mr. 

20 Stevenson, why shouldn't the court consider this 

21 to be the most important piece of evidence in all 

22 of these proceedings since it was written by 

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.1 your, I'm sorry, it should be Exhibit HH, excuse 

2 me, written by your director, your client's 

3 Director of Quality Assurance and Training 

4 assuming that they, that he on behalf of his 

5 company were committed to putting into place 

6 proper training, processes and procedures to 

7 prevent reoccurrences of problems that were 

8 experienced and complained about to the FAA by 

9 CCIA? 

10 MR. SILVERBERG: Well, Your Honor, we 

11 did address this is on our reply and I think 

12 you'll see the discussion over on Pages 24 and 

13 25. 

14 JUDGE SULLIVAN: And let' s, wait a 

15 minute. Let me take a look at your response. So 

16 your response to the FAA's motion has Exhibits 1 

17 through 8 and where is this material? Is it in 

18 Exhibit 1? 

19 MR. SILVERBERG: Well the argument, 

20 Your Honor, is contained, it looks like it starts 

21 on Page 24 over to 25. 

22 

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JUDGE SULLIVAN: Of your answer? 

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1 MR. SILVERBERG: The reference of our 

2 answer in opposition to the FAA motion for 

3 summary judgment. 

4 JUDGE SULLIVAN: Okay. So how --

5 MR. SILVERBERG: And we were refer 

6 JUDGE SULLIVAN: Yes, explain this to 

7 me. So how did Mr. Becker specifically, how do I 

8 want to say this, specifically disavow to the FAA 

9 and to CCIA the statements contained in Exhibit 

10 HH because that to me is the real crux of the 

11 problem in this particular motion. So if you 

12 could take this 

13 MR. SILVERBERG: Well there are a 

14 couple of things, Your Honor. 

15 JUDGE SULLIVAN: in Exhibit 1 that 

16 do that I would be most grateful. 

17 MR. SILVERBERG: Certainly. Well, 

18 Your Honor, what we, Mr. Becker was cross 

19 examined by Mr. Stevenson on this question and he 

20 had several answers for him. But let me start 

21 off by saying that perhaps I don't read this the 

2 2 way you do, Your Honor. 

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1 I'm not sure this is in fact an 

2 outright admission. But it certainly, well it is 

3 an attempt to be helpful to the FAA inspector. 

4 It's an attempt to be helpful to our customer. 

5 It's at attempt to be forward thinking in terms 

6 of how we approach these issues when they come up 

7 and cooperate and work with the FAA in looking at 

8 matters such as this. 

9 And one of the things we do is to, 

10 whether it constitutes a violation or not we will 

11 often come up with corrective actions which are 

12 favored by the FAA. I think in the 2150 you'll 

13 see references to the fact that corrective action 

14 is to be taken into account and that is a 

15 positive factor. 

16 But putting that aside, Your Honor, 

17 all that Mr., well what Mr. Becker said was he 

18 didn't believe that Capital Cargo did a thorough 

19 investigation. He said that the, prior to this 

20 coming to the point where a notice of proposed 

21 civil penalty was before him, this is just the 

22 letter of investigation, he thought it wise not 

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1 to engage in a back and forth with the customer. 

2 And so he approached a response to the 

3 letter of investigation in that way. It's, then 

4 he stated that he didn't believe that Mr. Buck 

5 who was the Capital Cargo person who signed the, 

6 his, the carrier's response and letter of 

7 investigation to the FAA, was in fact accurate in 

8 his responses but he didn't choose to go through 

9 that analysis in response to this. 

10 But rather in a way to be helpful and 

11 obviously in the best interest of being a 

12 certificate of repair station and seeking to be a 

13 compliant entity chose to propose various 

14 corrective actions without necessarily, certainly 

15 not legally conceding that the work wasn't done 

16 properly. 

17 Going back to the EIR and Inspector 

18 Lipinski's write up, he acknowledges that it 

19 appears from the work records that the landing 

2 0 gear were replaced and the flying doors were 

21 reinstalled and that the, with the exception of 

22 the question of whether or not you refer to 401 

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1 or 501 for purposes of rigging the doors and I've 

2 addressed that already, that the, you know, that 

3 work was done. 

4 So in the context of simply trying to 

5 be cooperative in the context of working with the 

6 FAA and not across purposes with the FAA and the 

7 same with our customer, we took an open approach 

8 to this. And to then take a letter like this and 

9 suggest that we've conceded the elements of a 

10 violation when in fact that's not been proven, I 

11 would dare say that's an interpretation of this 

12 letter that I don't think is warranted. 

13 JUDGE SULLIVAN: It is an admission by 

14 a party opponent which even if we were bound by 

15 the Rules of Evidence which as you know the rules 

16 before the trier of fact in this tribunal are 

17 used as guidance on occasion. Hearsay for 

18 example is allowed. 

19 Even if we were bound by more strict 

20 rules of hearsay under I think it's, if I recall 

21 correctly, let me see if I can find it, 804 or 

22 806. This particular type of statement that is 

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1 made in an official capacity is given special 

2 exemption from the rules of hearsay because it 

3 was considered to have throughout legal 

4 proceedings during our lifetime anyway a special 

5 sense of reliability unless the statement is 

6 later specifically recanted in some way that is 

7 clear, public and supported. 

8 What I have before me is a letter 

9 dated March 21, 2011, that appears to avoid, by 

10 Mr. Becker's own statements, to discuss the 

11 Respondent' s own and I quote, "very detailed 

12 investigation to review all aspects of the issue" 

13 and instead adopt wholeheartedly without any 

14 explanation or limitation its customer's 

15 assertion of fault. 

16 So I'm very concerned about seeing a 

17 letter like this. And I understand why it might 

18 have been authored at the time. Excuse me. But 

19 because it was authored by this person with the 

20 title of Director of Quality Assurance and 

21 Training and sent to the FAA in response to an 

22 official FAA investigation, I think that the 

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1 Respondent has the burden then to show why the 

2 letter should be given less than primary 

3 importance. 

4 And I am not quite seeing the 

5 testimonial statements in Exhibit 1 that appear 

6 to do that. And if Mr. Becker is not disavowing 

7 this letter and specifically explaining when it 

8 occurred, why it occurred and how it came about, 

9 the letter stands on its own and at which point 

10 it appears to me that the primary regulation has 

11 been admitted. That's my concern. 

12 MR. SILVERBERG: I accept what you're 

13 saying. I would suggest to you that Mr. Becker I 

14 think was very careful not to disavow the letter 

15 but to explain the context of the letter and the 

16 reasoning for the way in which it was styled and 

17 written, number one. 

18 Number two is I would assert 

19 respectfully, Your Honor, that whether or not 

20 there was a violation is going to be determined 

21 on the basis of the analysis of the records that 

22 the FAA has used to present its primary case, 

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1 that is the maintenance records in the aircraft 

2 both with respect to the original work that was 

3 done and then the corrective action that was 

4 taken. 

5 And the FAA certainly spent a good 

6 deal of time addressing the corrective action 

7 documents as we have as well. But to, I wouldn't 

8 elevate this letter, Exhibit HH, to the status 

9 that it is an unequivocal admission that AMES 

10 failed to perform the landing gear change and to 

11 rig the doors correctly. 

12 Capital Cargo is the operator. We 

13 didn't see the aircraft after we did the work 

14 from the standpoint of having day to day ongoing 

15 responsibility. And so when we were at the stage 

16 in early 2011 when we were responding to the 

17 letter of investigation, as I said, we wanted to 

18 strike a cooperative and helpful turn with the 

19 FAA. 

20 There was no intention on our part to 

21 admit a violation that we didn't believe in fact 

22 occurred. 

(202) 234-4433 

But by the same token rather than 

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1 argue the point we said okay, we'll take the 

2 corrective actions which are listed here. 

3 But I don't think we, by the same, by 

4 having done so admitted to the technical 

5 violations as alleged by the FAA. As I say, this 

6 is an effort to be helpful, cooperative and to be 

7 a good certificate holder. 

8 JUDGE SULLIVAN: So if we follow that 

9 argument to conclusion, would you say then that 

10 it gives businesses the opportunity to have two 

11 bites at the apple, to be cooperative during 

12 investigation and then to assert later on to a 

13 tribunal that the cooperation simply was limited 

14 in scope and that whatever assertions, either 

15 direct or indirect of fault should be set aside 

16 and the business should not be held to them in 

17 any way shape or form? 

18 MR. SILVERBERG: Well I would say I'm 

19 not disavowing the letter. But I have been in 

20 scores and scores of FAA enforcement matters and 

21 I can say that certainly I have seen cases where 

22 a client may have addressed the FAA in a letter 

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1 of response that was not done in as thoughtful a 

2 way as it could have or should have been done and 

3 we get to an informal conference or we get to 

4 even this stage of the proceeding and we're asked 

5 the question well why didn't you say that before. 

6 And the answer may well be, well we 

7 didn't have the benefit of a full analysis. We 

8 were wanting to be cooperative and respond as 

9 promptly as we could nor did we necessarily have 

10 the benefit of counsel. 

11 I don't think you can penalize a 

12 carrier that or a certificated entity that goes 

13 out and obtains counsel who then reviews the case 

14 and the case law and facts and indicates that 

15 there may well be some other considerations that 

16 they can present. So just at the LOI stage, the 

17 so-called letter of investigation and the letter 

18 of response stage I don't think that constitutes 

19 a second bite of the apple. 

20 I would rather say that's a 

21 preliminary part of the process and the real bite 

22 of the apple starts when you get the notice of 

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1 proposed civil penalty. 

2 JUDGE SULLIVAN: Okay. I'm going to 

3 just. Thank you. I'm going to note that we're 

4 almost out of time. Mr. Silverberg, since the 

5 court started you in a certain path do you want 

6 to take two minutes to finish your response for 

7 argument and then I'll give the FAA the five 

8 minute final reply? 

9 MR. SILVERBERG: Certainly. Let me 

10 just look back at my notes from Mr. Stevenson's. 

11 The argument that was presented that the FAA had 

12 no reason to address wear and tear in the EIR, to 

13 me that falls flat because obviously the FAA has 

14 the affirmative obligation to come forward to 

15 address the very significant gaps in time with 

16 intervening operations and maintenance. 

17 And it just ignored that in its 

18 entirety. It acted as if that's not part of what 

19 it is they have to prove. And it seems to me 

20 that with the significant gaps as we've 

21 identified here it was a substantial failing on 

22 the part of the FAA to view the case in that way. 

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1 We don't have the burden of proof. 

2 It's the FAA that does. They want to make a case 

3 based on circumstantial evidence they're going to 

4 have to tie it up and present some argument, some 

5 evidence to suggest that there was a clear 

6 evidentiary line from one point in time to 

7 another. 

8 They didn't attempt to draw the line 

9 much less discuss the line. So I don' t think 

10 they're free just to ignore wear and tear. The 

11 cracked hinges and the tubular bearing we're 

12 talking about there is enough I think to suggest 

13 that the Boeing warning was not necessarily 

14 universally complied with. 

15 We did see cracked hinges. That would 

16 suggest that flying doors were removed in a way 

17 that's not standard and that the supposition of 

18 the FAA that nobody would do it at one end of the 

19 actuation rod versus another end is speculation 

20 on their part. The, bear with me just one 

21 minute. 

22 

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JUDGE SULLIVAN: Sure. 

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1 MR. SILVERBERG: The notion that, you 

2 know, that the number of flights is not 

3 significant here is it seems to me, blinks at the 

4 reality of aircraft operating and non-operations. 

5 And the landing gear moving two times 

6 on every operation you absolutely have got to 

7 take into account the operating environment 

8 during that period of time when the FAA was, is 

9 alleging much earlier maintenance was performed 

10 in an improper way emphasizing for Your Honor 

11 that the gears were changed, the flying doors 

12 were reinstalled, the gears, the critical gear 

13 swings were accomplished, the doors were faired 

14 to the standards specified in the AMM. 

15 What happened after that with respect 

16 to the number of operations is nothing that the 

17 repair station can directly address. We're not 

18 the operator. But we do have confidence that the 

19 work was done correctly in the first instance and 

20 circumstantial evidence presented does not allow 

21 for the conclusion that was done incorrectly, the 

22 original was done incorrectly to the other part 

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1 as alleged by the FAA. 

2 JUDGE SULLIVAN: Thank you very much, 

3 Mr. Silverberg. Mr. Stevenson, you have five 

4 minutes or less for final reply. 

5 MR. STEVENSON: On the subject of 

6 these letters, specifically Exhibits HH, opposing 

7 counsel asserted that this letter was written 

8 without the benefit of full analysis. This 

9 letter was written ten months after these 

10 problems were discovered. 

11 It 1 s unclear how AMES did not have the 

12 benefit of full analysis at that point because 

13 they had all the documents. Similar, related to 

14 something that opposing counsel just said about 

15 them not being the operator I don 1 t know how 

16 pertinent that is. But to the extent that is I 

17 would note that these two entities were owned by 

18 the same parent company. 

19 Opposing counsel co-represented both 

20 of them. The Respondent had, when it felt it 

21 beneficial to the Respondent been able to come up 

22 with documents that were from the operator, the 

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1 e-mail back and forth between them we saw that 

2 the operator and the Respondent had the full 

3 ability to communicate with each other 

4 specifically about this case. 

5 So the notion that there was somehow 

6 something that the Respondent didn't have access 

7 to is misleading at best to the extent that's 

8 what opposing counsel is suggesting. On the 

9 subject of wear and tear I would again note that 

10 opposing counsel is focusing exclusively on what 

11 Inspector Lipinski did or did not say in the EIR. 

12 This case is not decided based on 

13 whether or not the inspector put every single 

14 thing in Section B of the EIR and whether or not 

15 he anticipated every possible defense. Inspector 

16 Lipinski was identified as an expert and the 

17 subject of his testimony, the opinions he was 

18 identified in discovery as having that this was 

19 not the result of wear and tear. 

20 Opposing counsel had the opportunity 

21 to depose Inspector Lipinski about that. You've 

22 seen those questions in the various submissions 

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1 here. If, I'm not sure what else the FAA would 

2 have done. If opposing counsel wanted to ask 

3 more questions about wear and tear of Inspector 

4 Lipinski then the Respondent had the opportunity 

5 to do that. 

6 This was not something that was 

7 somehow not mentioned until these motions were 

8 filed. Opposing counsel said it is subject to 

9 speculation regarding what end of the hinge 

10 versus another. I think that is adequately 

11 addressed in the briefs, however, that would be 

12 which end the actuation rod attachment bolt is 

13 on. 

14 And I think everything else is covered 

15 adequately in the briefs, Your Honor. 

16 JUDGE SULLIVAN: Thank you very much. 

17 Mr. Silverberg and Mr. Stevenson, thank you both 

18 very, very much for all of the material that you 

19 have provided as well as your flexibility in 

20 continuing this motion conference to today' s date 

21 and time. 

22 I'm also going to thank you both for 

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1 your flexibility in staying late beyond the time 

2 we had originally scheduled for this motion. 

3 I'll remind you both that you have a March 17, 

4 2015, deadline by 5:00p.m. to submit your 

5 various materials. 

6 Specifically for the Respondent number 

7 one, when it first identified Mr. Becker as an 

8 expert. Number two, what testimony in Exhibit 3 

9 of the Respondent's materials, excuse me, I think 

10 it's Exhibit 3 in Respondent's materials. Let me 

11 just double check. 

12 At any rate, in Mr. Becker's testimony 

13 where he's specifically discounted Exhibit HH. 

14 It looks like it's Exhibit 1 instead of Exhibit 

15 3, excuse me. And then number three, when the 

16 Respondent produced for the FAA the material that 

17 we talked about a little earlier in terms of the 

18 exhibits. 

19 And then for the FAA same deadline 

20 date for the production of the first page of 

21 Exhibit M, as in Mary, was disclosed by the 

22 Respondent to the FAA if in fact that's how the 

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1 FAA obtained that material. After March 17, 

2 2015, I will be issuing an order both on the 

3 Respondent's motion and on the FAA's motion. 

4 I' 11 note that the court is highly 

5 cognizant of the due date the parties have for 

6 exchanging witness lists and the orders should be 

7 issued prior to then. That's the court's goal. 

8 So with that I'll thank you both very much. 

9 Again, I wish you a very pleasant 

10 weekend and I hope you don't have any ill effects 

11 from Friday the 13th. Having said all of that on 

12 behalf of the FAA, Mr. Stevenson, is there 

13 anything else we need to address for your client 

14 before we close? 

15 MR. STEVENSON: Not exactly address 

16 for my client. But I wanted to clarify something 

17 which may or may not eliminate one of the 

18 assignments for opposing counsel. 

19 With regards to the exhibit you asked 

20 them to, which was Exhibit 7 to identify when 

21 they had produced it to us maybe I wasn't clear 

22 I earlier. 

(202) 234·4433 

That was something produced by the 

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1 Respondents during the course of discovery but it 

2 appears to be a CCIA document and the objection 

3 was to whether or not Respondent would be able to 

4 lay a foundation for that. 

5 To the extent that turns on whether or 

6 not the Respondent produced it during discovery 

7 the Respondent did produce that during discovery. 

8 JUDGE SULLIVAN: Okay, thank you very 

9 much for that clarification. On behalf of the 

10 Respondent, Mr. Silverberg, is there anything 

11 else that we need to address for your client 

12 today? 

13 MR. SILVERBERG: No, Your Honor. I 

14 appreciate your time today. 

15 JUDGE SULLIVAN: Okay. Thank you both 

16 very much. It appears our business is complete. 

17 We can go off the record and I wish you both a 

18 good day. Thank you. 

19 (Whereupon, the above-entitled matter 

20 went off the record at 4:03p.m.) 

21 

22 

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31:17 62:9 66:4 72:14 97:2,10106:1,13 applied 97:10 101:3,4,5 110:8 

86:21 1 03 2 107:22 111 :4 appreciate 4:17 25:17 attempting 30:9 75:3 

114:11 Aircrafts 53:13 83:7 86:13117:14 attention 56:19 59:4 

addresses 35:18 Airline 43:17 apprenticeship 15:9 64:7 

addressing 106:6 Airplane 29:21 64:13 approach 101:6103:7 attorney 2:14 4:9,11,14 

adequate 50 19 airplanes 95:1 approached 102:2 attributable 85:1 

adequately 114 10,15 AL 19 65 3 appropriate 14:14 attributing 92:1 

Administration 2:5 albeit 27:12 approximately 59:16 August 53:14 

14:10 allegation 54:9 94:21 arguably 97:3 authentic 44:4 

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
119 

authenticate 39:2 40:20 101:17105:6,13 70:16 75:5,6 78:3 78:14,14,16,21 79:15 

4134210 115:7 84:15105:1110:1 79:22,22 80:13 90:11 

authenticated 37:20 Becker's 3:5 11 :8 12:6 bushings 74:21 90:12 91:19 92:1,8 

38:1 41:4 49:22 12:1213:2014:3 21:8 business 14:9 43:17 99:9 100:9 117:2 

authenticating 44:5 21'13 29:20 51:19 90:3,12107:16 CCIA's 78:12 90:15 

authenticity 38:8 45 5,8 78 5 93:5,20 104:10 117:16 91:1892:3 

authored 104:18,19 115 12 businesses 107:10 center 46:11 

authority 95 14 began 73:15 buzzing 27:20 certain 35:16,22 98:1 

automatically 7510 behalf 2:2,8 34:20 64:4 109:5 

available 5:5,12 54:21 87:14,15 99:4116:12 c certainly 9:10 26:4 

57:15,17 117:9 c 89:10 27:16 29:17 60:4 64:7 

aviation 2:5 15:7,10 believe22:19 41:13 calculation 60:20 86:14100:17101:2 

19:6 4415 43:5 44:10 50:22 61:5 call12:16 28:5 41:3 102:14106:5107:21 

avoid 104:9 65:14 94:3,4 97:16 calling 38:2 61:2 109:9 

aware 28:13 38:1 43:10 101:18 102:4106:21 capable 44:5 certainty 78:4 

74:7 86:10 believes 66:13 capacity 91:14 104:1 certificate 14:20 15:6,6 

awareness 63:10 beneficial112:21 Capital3:7 37:17 38:3 102:12 107:7 

benefit67:10 108 7,10 42:5 43:16 44:8,13 certificated 108:12 

B 112:8,12 51:2 67:15,18 68:2 certified 90:9 

B3816113:14 benefitted 7 2 101:18102:5106:12 CFR 53:6,7,8 

bask 22 15 25:21 43:1 best7:9102:11113:7 car 72:7,8,9 chance 69:6 78:16 

60:21 61:9 62:1 67:20 beyond 57:8,9 115:1 care 5:9 change 5:13,13 65:22 

6~:2 77:3 78:14,21 bias61:15 careful1 05:14 76:11,18 77:16 81:9 

94:15102:1,17 big 72:10 carefully 62:5 85:22 87:8 106:10 

109:10113:1 Bikoff2:10 Cargo 3:7 37:17 38:3 changed 37:18 68:15 

backfill 70 1 binder 46 16 42:5 43:16 44:8,13 111:11 

background 22:17 bit5:13,1614:19 25:10 51:2 67:15,18 68:2 changes 59:6 

bandwagon 61:21 28:7 53:1 101:18102:5106:12 changing 61:12 

based 10:17 13:15 bite 108:19,21 carrier90:10 108:12 charged 54:14 90:2 

31.17389471848:6 bites 10711 carrier's 102:6 check 6:9 42:4 46:9 

53:22 60:6,7 66 18 blinking 84:14 case 6:3 13:4 14:3,13 50:22 57:6 67:5 

110:3113:12 blinks 111:3 18:4 23:5,22 24:19,22 115:11 

basement 5:7 Bobby 3:9 42:6 25:2 27:1,14 30:7,10 choose 1 02:8 

basically 55:18 93 21 Boeing 15:21 22:21 31:5,15,17 32:841:8 choosing 15:15 

98:13 65:2 81:11,16 82:15 43:11,17 45:20 51:19 chose 102:13 

basis 6:18 44:11 50:3 90:18110:13 53:10 57:22 59:2 60:6 Christiansen 17:11,15 

62:18 69:19 7518 Boeing's 90:22 60:13 61:7,14,16 62:3 17:16,18 23:15 24:14 

78:9 105:21 bolt77:10,12,13114:12 62:6,13,18,19,21 63:9 Christiansen's 23:20 

bat 58:2 bolts 77:1,3 63:13 65:15 66:14 Christopher 2:3 4:10 

BB 3:7 36:16 38:16 40:8 book 47:9,21 67:15,22 69:4,14,15 circumstances 86:22 

4l]:12 42:3,4 44:3,14 bottom 46:11 55:4 70:13,16,18 74:10,16 95:21 96:5,14,21 

44:16 45:4,14 bound 17:13 28:12 78:1,4 84:21 86:18 97:12 98:5,9 

bear 29:2 110:20 103:14,19 93:13 94:10 95:6,20 circumstantial 31 :18 

bearing 66:2,9,11 ,20 Box 2:5 96:7,17 97:6,12 31:19 63:11 84:3 

67:16 68:7,19 7511 boy38:16 105:22108:13,14 110:3111:20 

76:5,14 79:16 81:8 breath 87:6 109:22110:2113:4 citations 12:10 

110:11 brief6:2,17 12:11 76:13 113:12 cited 12:11 21:8 53:4 

bearings 68:13 77:11 81:6 case-in-chief62:6 83:13 

Becker 11:15 12:22 briefly 36:8 39 7 44:3 84:16 cites 12:22 

13:914:7,81517 49:1 cases 107:21 civil54:4 94:13 95:3 

16:2,9,19 17:4,6 18:1 briefs 5:18 6:1,4 88:17 categorically 83:19 101:21109:1 

19:3,5,5,6,9 22:1 9218114:11,15 categories 88:20,21 claim 68:12 69:21 

2313,19 24:12,18 broad 22:7 categorize 56:4 claimed 31:10 

25:2,9 26:12 351 broken 85:17 category 78:7 89:15 clamped 73:7 89:16 

49:1150:176612,18 Buck 102:4 cause 13:1 16:6 clarification 117:9 

7516 777,9 822,5 buffed 85:13 CCIA3:6,11,1419:21 clarify 116:16 

82 15 85:3,7 89:5,7 bulk 26:21 40:16,22 41:3,8,18 clarifying 9:20 

93:5,191007,18 burden 62:14 65:14 49:16 74:2 75:21 clarity 7:19 17:2 

Neal R Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
120 

clear54:18 55:12 62:3 111 :21 correct23:17 33:6 38:4 cross-motions 63:20 

104:71105116:21 conclusively 25:13 39:3 40:13 43:13 crux 100:10 

clearly 18:2 55:14 condemned 78:17 54:13 55:8,14 cumulatively 60:14 

client 23 13 27:15 condition 13:11 30:20 corrective 79:15 91:18 customer 37:17 67:14 

28:13 434 107:22 31:12 60:22 62:2 92:9101:11,13 1014102:1 103:7 

11613.16117:11 84:12 85:20,20 102:14 106:3,6 1 07:2 customer's 104:14 

client's 64:3 99:2 conditions 4:22 correctly 69:15 73:11 cut27:13 

clients 34:20 87:14 conducted 67:9 103:21106:11111:19 

clock 88 15 conference 4:7 5:3 correspondence 19:20 D -------

close67587:1811614 45:17 73:16,17 108:3 44:12 D75:9 

closed 4:21 114:20 corroborating 34:22 D'Arcy's 32:10 

closer 70:6 confidence 111:18 cosmetic 72:19 D.C 2:11 

co-represented 112:19 configure 16:3 counsel 24 33:10 daily 75:18 

Cody 2:14 4:13 confirm 47:11,15 36:11 52:7 78:21 damage 13:2 

cognizant 116:5 conflicting 94:8 82:21108:10,13 damaged 85:17 

collected41:16 confronting 60:2 61:4 112:7,14,19113:8,10 dare 70:3 103:11 

collective 854 confused 49:22 113:20 114:2,8 date 5:3 45:20 46:1,3,5 

combined 55:18 consecutively 8:17,20 116:18 53:17,18,21114:20 

come 40:4 65:14 70:16 9:7 counsel's 50:4 115:20116:5 

76:8 77:8 84:15 101:6 consider 12:17 22:20 count 94:7 dated 91 :8,19 104:9 

101:11109:14112:21 78:20 89:22 98:20 couple 6:16 25:19 77:2 dates43:6 53:12,14 

comes 31:3 77:6 86:17 consideration 11:8 100:14 54:3 61:10 

93:6,6 considerations 108:15 course 18:5 27:9,10 day4:2118:619:15 

coming 63:8 101:20 considered 11 :22 98:6 28:15 41:16 51:3 20:9 70:4,5,6 78:13 

comment 5:17 104:3 56:20 59:18117:1 78:14 106:14,14 

cori1mitted 99:5 considers 22:1 court 5:6,20 9:14,19 117:18 

communicate 113:3 consists 60:11 12:1717:9,14,21 24:5 days25:20 59:16,19 

company 27 7 99:5 constitute 33:2 24:6 34:19 38:9 39:22 68:15 84:14 

1'12:18 constitutes 31:8 101:10 40:2 46:10 51:22 52:8 deadline 115:4,19 

compelled 27:16 108:18 52:11,20 58:12 83:3 deal23:9 604 106:6 

compiled 234 contacted 5:1,4 92:22 95:9,10 98:18 dealing 80:5 

Complainant 2:2 3:4 contain 49:12 98:20 109:5 116:4 December 25:8 26:13 

58:6 66:6 contained 30:12 99:20 court's 5:8,18,21 7:20 35:2 

complained 99:8 100:9 10:1011:8 36:2 38:10 decided61:15113:12 

complaint 60 7 73:18 contains 62:7 52:22 116:7 decides 74:11 

94:15,16,17,20 contention 64:9 cover 13:7 55:4 72:22 declaration 19:3 21:10 

complete 117:16 CONTENTS 3:1 covered 42:11 114:14 22:11 30:3,9,15 33:7 

completed 74 22:14 context 6:15 39:18 51:3 covering 47:7 33:15,17 70:1,3 72:1 

60:22 61 '1 0 65:22 103:4,510515 covers 22:18 74:20 86:21 

68:16 81 9 continue 8:17 52:6,17 89:17 decline 10:16 

completeness 17:1 continuing 114:20 cracked 74:19,20,20 dedicated 77:4 

completes 38 18 continuous 90:12 81:18,19110:11,15 deemed 17:11 45:10 

completion 67:19 contracted 61:11 cracks 73:4 89:7,12 defeat 93:8 

compliance 22:8 contradictory 33:13 create 12:9 94:5,9 defective 63:13 

compliant 102:13 contrary 73:20 78:22 credentials 13:20 14:2 defense 75:8 113:15 

complied 110:14 contrast 31:9 14:6 21:9,14 23:7 definitive 43:21 

complimented 67:18 convene 5:10 50:18 definitively 42:14 

67:19 convened 1:12 4:7 criteria 12:15 degree 14:8 

comply 92:3 convenient 9:19 critical34:15 61:5,17 demonstrated 35:15 

component 16:4 66:1 conversations 13:15 63:7 80:14 84:20 denied 63:2 79:19 

components 734 25:1 111:12 dent72:7,10,12 

comprehensive 12:9 convey 94:2 criticism 27:12 28:16 deny 35:7 

conceded 103:9 cooperate 101:7 cross 4:8 6:3 64:17 denying 63:15 

conceding 102:15 cooperation 107:13 100:18 Department 1:1 22:4 

concern 105:11 cooperative 103:5 cross-motion 7:11 depending 59:9 

concerned 104:16 106:18107:6,11 10:2118:19 28:20 depose 113:21 

conclude 61:8 78:10 108:8 32:19 34:12 35:10 deposition 11:14,19 

conclusion 97:6 107:9 core 90:19 57:22 12:7,1216:1819:4 

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
121 

218 30:2 3110 32:4 Oocket4:5 eight 7:16 49:4 111:20 

32:103311,14826 document 3:3 36:6 EIR 30:13 60:10,19 62:7 evidentiary 61:9 69:19 

8211,20 9321 40:17,19 41:22 48:1,7 64:8 70:19 72:14 74:9 110:6 

describes 76:6 49:17,21 50:2,5,8,22 75:4,9 83:19 84:17 exact43:19 83:12 

detail22:10 30:10 52:4 67:13 79:18 102:17109:12113:11 exactly 20:1 42:19 82:3 

7613 98:7 86:19 90 6 94:17 113:14 116:15 

detailed 92:6 104:11 117:2 either6:717:1941:14 examined 100:19 

determination 7:5 documentary 84:16 41 :20 48:3 53:19 93:7 example 8:8 12:17 15:3 

determine 33:4 4312 documentation 88:22 96:22 107:14 103:18 

47 10 documents 19:7,18,22 elapsed 71:14 exception 48:2 1 02:21 

determined 105:20 20:2 24:8 37:15,15,19 element 65:12 84:20 excerpt 29:21 30:1,2 

different 7:20 35:19 37:22 39:2 42:20 elements 5621 85:18 32:11 

462,5 533,11,12 43:11459,13,18 103:9 excerpts 11:14,19 

70:12 76:15 96:3,5,22 46:14 48:21 49:7,12 elevate 106:8 16:18 19:4 

97:9 51:4 57:4 60:7 62 7 eliminate 46:6 116:17 exchange 51 :4 

differentiate 8:2 64:8 84:18 91:21 emphasize 69:13 exchanging 116:6 

differently 681 92:16 94:3 106:7 emphasizing 111:10 exclude 17:6,12,22 

difficult 95:9 112:13,22 ended 15:14 exclusion 40:1 

digging 96:13 doing 15:1216:10 enforcement 30:13 exclusively 12:6 113:10 

direct 58 9 61 8 107 15 36:11 58:1 75:22 76:9 107:20 excuse 30:18 50:14 

directing 56:17 76:10,21 8118 85:15 engage 102:1 53:8 59:13 64:16 

directly 82:21 111:17 96 1 engineer 16:10,11 22:2 67:19 70:4 79:13 

director 85:8 91:10 dollar 70:4,5 22:3 94:19 99:1104:18 

99:2,3 104:20 door64:19,20,21 67:2,6 engineering 1:5 4:5 115:9,15 

disagree 91:1 95:17 72:8 74:19 76:20 77:2 14:9,11 22:20 exemption 104:2 

disassembling 76:19 77:4 81:13 ensuring 22:12 exercise 52:12 

77:17 doors 31:1 66:22 67:5 enter 92:22 exhibit 3:3 7:21 8:9,11 

disavow 100:8 105 14 68:5 84:13 85:22 entire 18:3 30:7 9:411:13,1616:15,16 

disavowing 105:6 94:22 95:7 102:20 entirely23:17 30:10,11 18:1019:3 21:3,11 

107:19 103:1106:11110:16 70:12 84:6 29:6,18 30:4 32:10,19 

disclosed 17 7 18:4 111:11,13 entirety 109:18 35:9 36:3,6 38:15,15 

242115:21 double 42:4 115:11 entities 112:17 38:16,16,16 39:15 

dis~losure 19:14 23:18 Douglas 22:21 entity 102:13 108:12 402,16,22 41:7,12,14 

disclosures 24:11 draw 110:8 environment 111:7 41:22 42:3,4,9 44:16 

discounted 115:13 driving 4:22 equate 75:4 44:19 46:18,20,22 

discovered 19:17,20 dry14:19 errors 97:1 47:1 ,3,3,6,6,9,12,16 

20:4 69:21112:10 due 45:20 116:5 errs 75:3 47:21 48:2,6,9, 10,13 

discovery 18:5,6 19:13 duties 22:6,9 ERs 12:16 48:17 49:9,15,19 

19:14 26:16 27:13 duty 27:5 28:12 ESQ 2:3,9 50:21 51:13,14 52:2 

40:18,20 41:10,15 ---- essence 35:12 52:19 53:15,17,19,20 

42:2,16 43:4,9 45 19 --~--- essentially 18:3 55:17 54:7 60:11 66:15 

47:14 48 8,19 49:21 E3:11 38:1540:8,12,16 55:21 79:8 94:10 67:18 79:2,11,21 80:3 

50:2 51:4 52:5 113:18 42:14 43:2,12 45:15 establishing 63:10 80:9 82:7,8,8, 1 0,13 

117:1,6,7 46:8,8,9,18 48:6,22 Evans 3:9 42:6,6 44:14 82:14 83:3 89:10 91:7 

discrepancy 19:21 79:4 e-mail 3:13 5:5 41:7 44:22 98:17 99:1,18 100:9 

79:14 11 3: 1 everybody 5:12 57:7 100:15 105:5 106:8 

discrepant 85:19 e-mails 78:13 87:7 90:17 115:8,10,13,14,14,21 

discuss 39:17 80:1 E-X-H-1-B-1-T-S 3:2 everybody's 4:17 116:19,20 

104:10110:9 earlier4:19 5:4 21:7 evidence 12:8,16,19 exhibits 5:18 6:1 ,2,4,16 

discussed 25:4 92:18 24:6 27:5 39:13 40:1 31:18,20 35:19,21 7:8,13,16,16,21 8:2,3 

93:16 61:10 69:20111:9 36:6 45:13 48:21 8:5,7,17,20 91,1 ,5,13 

discussion 71:7,10 115:17116:22 52:10,10,14 58:9 10:411:2,5,10,12 

99:12 earliest 25:20 60:19 61:22 62:4,16 16:14,1618:8,11,12 

discussions 95:2 early 42:21 70:11 63:5,11 66:11 68:8,11 18:18,2219:1220:18 

dispute 90:7,8 91:4 106:16 70:17 74:2 75:15 20:21 21:2 26:14 

dis(ant 83:21 effect 84 8 76:22 78:7 84:3 85:16 28:19,20,21,22 29:8 

distinct 56:5 effects 116:10 85:18 92:12 94:9 29:10,1134:8,10,16 

divide 88:19 effort 107:6 98:21103:15110:3,5 34:18 35:5 36:9,13,14 

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
122 

36:15,17,18,20 372,4 93:1,16 94:14 95:5 70:11 formation 59:2 

37:6,7,11,14 38:7,21 99:8 100:2,8 101:3,7 federal2:5 4:21 forms 22:14 

39:8,20 40:7 42:14 101:12 102:7103:6,6 feels 33:2 forth 8:7 9:11 52:19 

43 2 44:3 45:3,4,9,13 104:21,2210522 felt27:428:12112:20 56:16102:1113:1 

45:15 46 8,16 4822 106:5,19 107:5,20,22 field 26:7 fortunately 5:9 

49:2,3,5,17 50:14 109:7,11,13,22110:2 figured 92:19 forward6:1165:15 

52:16 60:5 80:6,8 110:18111:8112:1 file 522 25:15 70:17 84:16101:5 

91:22 9916112:6 114:1115:16,19,22 filed 4:8 6:4 21:10 31:6 109:14 

115:18 116:1,12 36:20 52:16 114:8 found 27:2,7 31:12 

existence 28 13 FAA's 9:2,6 10:5 12:5 files 27:7 37:16 35:12 60:20 66:2 

expect 33:8 71:11 72:3 17:3,1218:18 21:2,4 filing 5:17 foundation 41:10,20 

expected 24:20 85:12 21:1123:12 30:10 final87:17 98:14109:8 42:3,9 44:11 50:5,7 

experience 5:19 14:11 31:15 34:9,13,17 35:3 112:4 117:4 

14:12,15,16,16,22 36:9,13,21 37:13,21 finally 78:11 79:21 four 39:9 48:11 87:19 

15:4,7,2016:1 22:17 39:8 40:7 47:5 48:6 find 30:15 45:5 103:21 88:19 

23:10267 48:17 49:3 51:14 52:1 finder 78:9 fourth47:4,12 

experienced 99:8 641 65:14 69:14 75:5 finding 58:13 63:6 92:1 frame 71:12 

expert 11:9,2112:15 75:5 78:3 80:6 85:5 finds 71:16 framed 60:6 

13:20 14:14 1617 87:9 91:7 99:16116:3 fine 8:13 16:9 22:2,3 frankly 65:5 

17:418:6 23:14,20,20 FAA-2013-0291 1:5 fingertips 83:9 free 110:10 

24:11,13,17 25:9 26:5 face 6:5 43:15 91:11 finish 109:6 Friday 1:8 4:6 116:11 

26:13 3322 35:1,15 facilitate 81:13 first6:12 9:711:1 31:16 front24:8 

11316115:8 facility 59 14 34:12 37:2,2 43:2 full54:19,21 108:7 

explain 30:20 100:6 fact23:1,12 24:21 25:3 46:11,19 47:6,14,16 112:8,12113:2 

105 15 25:4,7 27 10 30:8,21 48:2,12 58:4 70:18 fully 7:3 80:1 

explained 76:12 43:8,14 60 3,5 67:13 88:21 89:3111:19 further 6:6 17:2 48:6,13 

explaining 105:7 68:10 73:9 78:9,16 115:7,20 92:10 

explanation 20:3 77:8 81:17,19 83:17,22 fitting 76:14,19 77:18 

104:14 86:17 92:5 94:5 95:18 89:6 G 

explicitly 75:8 97:9,13101:1,13 fittings 75:12 89:4 game 77:6 87:4 

explore 60 3 102:7 103:10,16 five 69:6 70:6,9 71:1 gap 59:4,15 60:13 

expressed 11 :9 106:21115:22 80:18 87:17109:7 gaps 109:15,20 

extensive 85:2 factor95:13,19 9711 112:3 gatekeeper 52:9,21 

extent 19:5 66:7 68 6 98:3,3 101:15 flap 13:4 89:6 gate keeping 52:12 

69:22 72:4 85:15 factors 81:7 flat 109:13 gear 30:22 37:18 56:2,5 

112:16113:7117:5 facts 58:5,12,16,17 flew 59:15 59:6,13 60:16 61:12 

65:15 95:20,21 96:21 flexibility 114:19 115:1 63:5 65:22 67:2,4,13 

---------- F 97:11 98:5,9 108:14 flexible 53:22 68:4 75:12 84:13 

FAJi, 3:8 4:5,9 6:14,15 factual 86:20 flights41:17 59:12,15 85:22 89:4,5 94:22 

91911:4,716:16 failed 65:20 106:10 59:18 60:14 71:5,7 102:20106:10111:5 

1.\5,5,2219:7,11 failing 109:21 84:10111:2 111:12 

21·1 22:8 23:21 24:3 failure 26:16 92:3 flooding 5:7 gears111:11,12 

24:3 25:9 26:15,22 faired67:6111:13 flown 59:12 general5:1712:21 

28:19,20 29:8 30:7 fairing 13:5 flying 31:1 64:19 67:2 14:1715:19 94:4 98:4 

31:4 32 18 33:22 35:9 fairings 89:6,8 68:5 74:19 76:20 generally 71:16,19 

3614,17 38:1 39:1 fall 10:9 78:6 81:12 84:13 85:22 93:13 94:7 95:20 

41:2 42 5 43:3,6 44:4 falls 109:13 102:20110:16111:11 genuine 94:9 

44:5,15 45:3,7,16,19 familiar 72:7 focus 53:2 56:19 86:17 Georgetown 2:1 0 

46:15 4719 48 5,14 fashion 58:21 focusing 113:10 Georgia 2:6 

48:214911,145013 fasteners 73:2 folks 27:18 getting 28:5 

51:16 525 535 54:5 fault 92:2 104:15 follow 90:15 94:18 gimbal76:14,19 77:18 

54:8,13 567 58:10 107:15 107:8 give 12:2 69:5,7 87:12 

59:8 60:6 61:6,14,16 favor78:10 93:1 followed 27:9,11 28:16 87:14,16 94:16109:7 

62:6 63:15 64:8,22 favored 101:12 64:13 65:9 66:8 91:5 given 48:17 53:3 60:16 

65:6 68:7 70:2 71:15 fax2:7,12 following 58:8 62:18 64:7104:1105:2 

72:21 74:4,7 75 2 FDMS 1:4 follows 26:19 53:13 gives 107:10 

80:4 82:22 84:1 '18,21 February 20:9,13,13 foremost 11:2 37:3 gloss31:14 70:12 

86:17,22 91:15,19 26 3,17 34:21 45:21 form 13:9 27:4 107:17 go 6:10 18:11 28:8 

Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
123 

32:13 34:8 37:11 88:5 identification 18:5 indicated 38:2 58:4 

41:13 47:1 57:3 65:1 hearing 40:21 50:9 75:7 40:17,19 48:7 indicates 88:22 108:14 

65:8 88:9 102:8 75:10 identified 7:16 8:5,8 indication 68:1 

117:17 Hearings 1:2 4:13 5:2 17:10,17 25:3 26:5,12 indirect 107:15 

goal116:7 hearsay 103:17,20 28:19 29:10 35:1 individual15:4,22 

goes 30 5 64 9 66 7 104:2 36:14 37:7 38:21 22:16,22 71:17 91:15 

108:12 heart 91:1 39:10 41:9 42:1,7,14 individuals 17:17 

going 5 16 710 10 14 held 17:21 107:16 49:4 51:22 53:13 informal73:16,17 108:3 

10:2111:118:1520:6 helpful 89:14 101 :3,4 90:11109:21113:16 information 13:19 21:7 

28:6 30 10 31:21 32:1 10210106:18107:6 113:18115:7 25:19 34:22 47:18 

34:6,7,8,9, 11 37:1,2 hey78:14 identifies 36:18 46:7 48:14 51:2156:15 

42:22 44:9,15,22 45:1 HH 91:7 92:5,15 99:1 identify 8:6 24:16 25:8 59:21 61:7 86:20 

45:16 56:17,18 57:3,3 100:10106:8112:6 38:9 46:14 48:3 initial90:11 

58:1 62:4 69:20 71:14 115:13 116:20 initiated 66:5 

71:21 79:4 81:21 84:2 hide 27:3 ignore 74:5,6 110:10 inquiry 6:20 66:19 

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(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC www.nealrgross.com 
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(202) 234-4433 Washington DC www.nealrgross.com 
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Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
129 

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Neal R. Gross and Co., Inc. 

(202) 234-4433 Washington DC www.nealrgross.com 
130 

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(202) 234-4433 Washington DC www.nealrgross.com 
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Neal R. Gross and Co., Inc. 

Washington DC 

131 

www.nealrgross.com 
C E R T I F I C A T E 

This is to certify that the foregoing transcript 

In the matter of: Airborne Maintenance and 

Engineering Services 

Before: DOT/FAA 

Date: 03-13-15 

Place: teleconference 

132 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

(202) 234-4433 

Court Reporter 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W 

WASHINGTON, D.C. 20005-3701 

r 

www.nealrgross.com