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 

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HEARING DOCKET

(202)234-4433 

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NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-4433APPEARANCES:
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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(202)234-4433 COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-4433Exhibit Nos. Complainant JJ H
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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

NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 3

ID Rec'd

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(202) 234-44334

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 EngineeringServices. 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 representedby 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 afternoonto 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 20 because there was unexpected snow and as a result 21 federal offices were closed that day because of 22 treacherous driving conditions.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-44335 1 The parties then were contactedby 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 scheduledtime. 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

(202)234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-44336 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'sreply 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

(202)234-4433 MR. SILVERBERG: Your Honor, I'm not

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-44337 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 profferedby 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 identifiedas 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.

(202) 234-4433 So it would seem to me, Mr. Silverberg,

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-44338 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. Thereforeyour 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 consecutivelyand 18 produce for you a reply to the Respondent's 19 opposition to our summary judgment motion using 20 those consecutively numbered exhibits if that 21 would aid in the process. 22

(202) 234-4433 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 Otherwisewe certainlycan 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

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443310 1 numbered 1 through 16. 2 The Respondent's reply would be 3 reidentified as 1R through 8R and would the 4 exhibits attachedto the Respondent'sresponse 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443311 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 considerationof 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 wouldbe 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 depositiontestimonyfor everymaintenancematter 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'sbrief 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

(202) 234·4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443313

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

(202) 234-4433 MR. STEVENSON: Yes, Your Honor.

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1 JUDGE SULLIVAN: Why, in your opinion, 2 are those credentials insufficientto 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 engineeringexperience. 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443315 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 aviationmaintenance for a lengthyperiod of time 11 and is always under the supervisionof 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 experiencewith this aircraft, 21 with Boeing 727s is almost nonexistent. 22 He and the individual at AMES had no

(202) 234·4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234·443316 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 thingyou learn by 8 being a mechanic, by working on these planes. 9 And again, while Mr. Beckerperhaps 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

(202) 234-4433 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 objectionthat 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 representationsto the court then the 22 FAA would renew its original motion to exclude

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443318 1 Mr. Becker as presented in these motions is 2 clearly not a rebuttal witness. He is 3 essentiallythe 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. Stevensonfor the 16 moment and then I'll turn to Mr. Silverbergfor 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 1s reply 22 Exhibits 1R through 8R and if so what are those

(202)234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443319 1 objections? 2 MR. STEVENSON: With regards to 3 Exhibit 1R, the declarationof JeffreyBecker 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 producedby 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 explanationwas providedof 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

(202) 234-4433 NEALR. GROSS COURTREPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443321 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

(202) 234·4433 MR. SILVERBERG: I'm more than happy

JUDGE SULLIVAN: Okay. MR. SILVERBERG: It 1s pleasant to hear

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 (202)234·44331 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 

# II 22 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 maintenanceinspectors, his duties are spelled out in paragraphs, in detail in Paragraph 1 of his declaration including responsible for ensuring inspections are properly performed, proper inspectionrecords 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443323 1 and in fact the testimony that he gave with 2 respect to the interpretationof the records that 3 AMES maintained, maintenance records that they 4 compiledand maintained is obviouslyimportant 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.

(202)234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202)234-443324 1 JUDGE SULLIVAN: Right, but it's not 2 specificallyhow you disclosedthe 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 testimonyof, well the potential testimony 14 of Mr. Christiansen. We refer to this on Page 4 15 of our reply. 16 JUDGE SULLIVAN: Did you identifyhim 17 as an expert witness prior to May 1, 2014? 18 MR. SILVERBERG: We listedMr. Becker 19 as a person that had knowledge of the case and 20 could be expected to testify. 21 JUDGE SULLIVAN: That couldbe a fact 22 witness. And it's my recollection of this case

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443325 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 discussedas 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 informationif 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 identifiedas 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 raisedby 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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### 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 clientproduce 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.

(202)234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443328 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 identifiedas 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

(202) 234·4433 NEALR. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202) 234-443331 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202)234-443332 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 InspectorLipinski is somehowbeing 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 depositiontestimonyand 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 somethingabout what wear

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.. N.W WASHINGTON, D.C. 20005-3701 (202) 234-443334 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 objectionsto 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.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202)234-443335 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'sExhibits 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'sobjection 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 objectionto admissibilityI 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 brieflyabout 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 producedby 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202)234-443338 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 couldbe 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 1ll be happyto, 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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.. N.W WASHINGTON, D.C. 20005-3701 (202) 234-443339 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 regardingExhibit 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE.• N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443340 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, Wand 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

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005·3701 (202) 234·443341 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 Mis 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 collectedby the inspectorduring the course 17 of his investigationinto 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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# II

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 i 

# III 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 Wdefinitively 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 JUDGE SULLIVAN: Okay. Then I 1mgoing

NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443343 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 producedby 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

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443344 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, assumingMr. 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.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443345 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 assertedpersuasivelythat 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 possibilitythat 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 Wand 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 20 was providedby the Respondent. On Exhibit K the 21 number is 122 providedby the Respondent and then 22 did you talk about Exhibit M, Mr. Stevenson, or

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005·3701 (202) 234·443347 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 confirmwhere 16 the first page of Exhibit Mwas 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

(202)234·4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202)234·443348 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 objectionFAA 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 Wgiven 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, verybriefly, 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE, N.W. WASHINGTON, D.C. 20005·3701 (202) 234·443351 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 previouslyidentifiedby the court.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202)234-443352 1 And in terms of the FAA's objectionto 2 Respondent's Exhibit 7, that also is reserved to 3 allow the Respondent an opportunityto 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 reliabilityof 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 withmaintenancedates 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE, N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443354 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 sanctionedguidance, the full availablerange for 22 this sort of violationwould 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 selectedhere 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 1s 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 basicallycombinedfor 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443356 1 perform the installation for each of the landing 2 gear in accordance with the Aircraft Maintenance 3 Manual. 4 Potentiallyyou 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 attentionon 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 sections.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202)234-443357 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW WASHINGTON, D.C. 20005-3701 (202)234-443358
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 evidenceprovidedby 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.

NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-443359

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 N28 7SC 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.

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443360

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 presentingand 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 maintenancehaving occurredwhat our positionwas 19 and is, is that the evidence presented in the EIR 20 simplymade the calculationthat 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSAND TRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443361 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 confrontingwhat 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 evidentiaryline 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

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443362 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, interveningoperations and resulting ll in normal wear and tear. 12 They didn't get to that. They didn't 13 make that an affirmativepart 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

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-443363 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 comingupon 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 understandthat 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

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202) 234-443364 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 allegedviolation 145.205(a) that you referenced, 11 Your Honor. 12 And that is whether or not AMES 13 properly followed the AirplaneMaintenanceManual 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 reinstallinga door 22 that had previously been installed.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE. N.W WASHINGTON. D.C. 20005-3701 The FAA has

(202)234-443365 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

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443366 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 inspectionof 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 Perhapsmore importantlyreplacingall 22 doors of these aircraft, including N287SC the

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202)234-443367 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 actuallyretractedand 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 themselveswitnessedby 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 excuseme, complimentedAMES on the completionof 20 the work on that aircraft when it was turned back 21 over to them. 22 The aircraft in every case or put it

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202)234-443368 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443369 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 somehowon an evidentiarybasis 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

NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443370 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 earlyMarch 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 presentedthe 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443371 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 discussionof 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

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (2021 234-443372 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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(202)234-443373 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 summaryjudgment, the 22 Respondent did not in its letter of response ever

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202)234-443374 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 InspectorLipinski 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005·3701 (202) 234·443375 1 litigation. 2 The FAA, I would also note just 3 procedurallythe Respondent errs in attemptingto 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 prohibitionthat 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 tubularbearingon 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 impropermaintenanceon

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-443376 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443377 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 disassemblingthe 18 gimbal fitting. 19 The Respondent, Mr. Silverberg just 20 now said it is in the realm of possibilitythat 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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.. NW. WASHINGTON. D.C. 20005-3701 (202)234-443378 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 insufficientto preclude summaryjudgmentbecause 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 actuallyhaving 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE.• N.W. WASHINGTON. D.C. 20005-3701 (202) 234-443379

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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443380 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 exhibitswhich 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, thankyou 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.

(202) 234-4433 MR. SILVERBERG: Very well, Your

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443381

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 7SC, I have to be brief 7 but there are other factors on which we relied to 8 support our position that the tubularbearinghad 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 crackedhinges

- 20 21 22 JUDGE SULLIVAN: I 'm sorry. I 'm going to interrupt you. Who is testifying to this in

(202) 234·4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202)234-443382 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 testifyingto 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.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443383

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

(202)234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443384 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 ignoredthe 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 conditionyou 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

(202)234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443385 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 anythingthat 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

(202)234-4433 and the flying

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE.• N.W. WASHINGTON. D.C. 20005·3701 doors were

(202)234-443386 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443387 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 categorieswhere 22 Respondent's own documentation indicates that

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE, NW. WASHINGTON, D.C. 20005-3701 (202) 234-443389 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202)234-443390 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 worthinessmaintenanceprogramunder 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 Boeingmaintenancemanual for these 727s. 19 And the core issue under 145.205(a) 20 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 QualityAssurance 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 complywith CCIA's Maintenance 4 Manual in the sections of the MaintenanceManual. 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 referencedthat 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443393 1 favor of the FAA. 2 JUDGE SULLIVAN: There is in the 3 Respondent's responsive materials to your motion 4 for summaryjudgment 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: Specificallyregarding 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 depositionhe basically 22 said that I'm not sure I wasn't by writing all

(202) 234·4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-443394 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 presentingconflicting 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 Section 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE, N.W. WASHINGTON, D.C. 20005-3701 (202)234-443395 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 summaryjudgment shouldbe grantedbecause 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 circumstancessurroundingthe violation 22 are going to take place.

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# 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 improperlyand many different circumstancesunder 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 violationwould be different than either the

(202)234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-443397 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 aggravatingfactor as part of the facts and 12 circumstancesof 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 assertionthat the facts and circumstancesof 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

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-443399 .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

(202) 234-4433 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, explainthis to 7 me. So how did Mr. Becker specifically, how do I 8 want to say this, specificallydisavow 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 examinedby 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.

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005·3701 (202)234·4433101 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 violationor 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 correctiveaction 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

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202) 234-4433102 1 to engage in a back and forth with the customer. 2 And so he approacheda 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 investigationto 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 certificateof repair station and seeking to be a 13 compliant entity chose to propose various 14 correctiveactionswithoutnecessarily, 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 20 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-4433103 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 simplytrying 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 admissionby 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-4433104 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 investigationto 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE. N.W WASHINGTON, D.C. 20005-3701 (202) 234-4433105 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,

(202) 234-4433 NEALR. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-4433106 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

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202) 234-4433107 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 allegedby 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

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE, N.W. WASHINGTON, D.C. 20005-3701 (202) 234-4433108 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 proceedingand we're asked 5 the questionwell 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 preliminarypart of the process and the real bite 22 of the apple starts when you get the notice of

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202)234-4433109 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.

(202)234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005-3701 (202)234-4433llO 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 circumstantialevidence 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 crackedhinges. 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

(202) 234-4433 JUDGE SULLIVAN: Sure.

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1 MR. SILVERBERG: The notion that, you 2 know, that the number of flights is not 3 significanthere is it seems to me, blinks at the 4 realityof aircraft operatingand 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 correctlyin the first instance and 20 circumstantial evidence presented does not allow 21 for the conclusionthat was done incorrectly, the 22 original was done incorrectly to the other part

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-4433112 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, specificallyExhibits 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 1s unclearhow 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 1t 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 Respondentbeen able to come up 22 with documents that were from the operator, the

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W. WASHINGTON, D.C. 20005-3701 (202)234-4433113 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 InspectorLipinski 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 anticipatedeverypossible 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

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE

.. N.W. WASHINGTON. D.C. 20005-3701 (202) 234-4433114 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 everythingelse 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 continuingthis motion conference to today's date 21 and time. 22 I'm also going to thank you both for

(202) 234-4433 NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202)234-4433115 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 Specificallyfor the Respondentnumber 7 one, when it first identified Mr. Becker as an 8 expert. Number two, what testimony in Exhibit 3 9 of the Respondent'smaterials, excuse me, I think 10 it's Exhibit 3 in Respondent'smaterials. 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

(202) 234-4433 NEALR. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 (202)234-4433116

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 exchangingwitness lists and the orders shouldbe 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

NEAL R. GROSS COURT REPORTERSANDTRANSCRIBERS 1323 RHODE ISLANDAVE., NW. WASHINGTON, D.C. 20005·3701 (202) 234·4433117 1 Respondents during the course of discoverybut 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, thankyou 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-entitledmatter 20 went off the record at 4:03p.m.) 21 22

(202) 234-4433 NEAL R. GROSS COURT REPORTERS ANDTRANSCRIBERS 1323 RHODE ISLANDAVE

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Neal R. Gross and Co., Inc. Washington DC 131

www.nealrgross.comC 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 REPORTERSANDTRANSCRIBERS 1323RHODEISLANDAVE., N.W WASHINGTON, D.C. 20005-3701 

# r

www.nealrgross.com