In The Matter Of: U.S. DEPARTMENT OFTRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D. C. 

# RECEIVED AUG 112014 

## HEARING DOCKET DocketNo. FAA-2012-0477 LIBERTY FOUNDATION, INC., Case No. 2011-GL-03-0070 Respondent. 

# ____________________;

RESPONDENT'S POST-HEARING CLOSINGARGUMENT

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, STE 380 MIAMI, FL 33156 TEL: (305) 670-1222 FAX: (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET ATTORNEY FOR RESPONDENTTABLE OF CONTENTS I. NATURE OF THE CASE

A. The Original Complaint B. The Amended Complaint II. ARGUMENT A. FAA DID NOT PROVE LIBERTYVIOLATED FAR 43.5(a) BY FAILING TO MAKE AMAINTENANCE RECORD ENTRY PRIORTO THE FLIGHT OF JUNE 13, 2011 B. FAA DID NOT PROVE LIBERTYVIOLATED FAR43.9(a) RELATING TO THE MAINTENANCE LOG ENTRY MADE PRIOR TO THE JUNE 13, 2011, FLIGHT C. FAA DID NOT PROVE LIBERTYVIOLATED FAR 43.9(a) RELATING TO THE MAINTENANCE LOG ENTRY FORTHE FEBRUARY, 2011, MAINTENANCE OR FAR 91.405(b) RELATING TO THE JUNE, 2011, OR THE FEBRUARY, 2011 MAINTENANCE D. FAA DID NOT PROVE LIBERTYVIOLATED FAR 91.407(a) THAT LIBERTY OPERATED N390TH WHEN IT HAD NOT BEEN APPROVED FORRETURN TO SERVICEAND AREQUIRED MAINTENANCE LOG ENTRY HAD NOT BEEN MADE E. FAA DID NOT PROVE THE REPLACEMENT OF THE BLADDER FUEL TANKS WITH THE ALUMINUM FUEL TANKS CONSTITUTED AMAJOR ALTERATION OF THE FUEL SYSTEM

(1) MajorAlterationAs Defined In AppendixATo Part43 (2) MajorAlterationAs Defined In FAR Section 1.1 F. FAA DID NOT PROVE LIBERTYVIOLATED FAR43.9(d) BECAUSE THERWAS NO MAJORALTERATION OR MAJOR REPAIR G. FAA DID NOT PROVE LIBERTY VIOLATED FAR43.13(a) RELATING TO METHODS, TECHNIQUES, PRACTICES, TOOLS, EQUIPMENT, AND TEST APPARATUS 1 1 3 4

4

11

12

14

15 

### 16 25

31

32H. FAA DID NOT PROVE LIBERTY VIOLATED FAR43.13(b) RELATING TO THE MANNER OF THE WORKPERFORMED AND THE QUALITY OF THE MATERIALS USED I. FAA DID NOT PROVE LIBERTY OPERATED LIBERTY BELLE IN AN UNAIRWORTHY CONDITION IN VIOLATION OF FAR 91.7(a) ). FAA DID NOT PROVE LIBERTY IS RESPONSIBLE FORANY FARVIOLATIONS THE COURT MAY FIND

(1) The Individuals Who PerformedThe MaintenanceWere IndependentContractors, NotAgents OfLiberty (2) As APart91 Operator, LibertyIs Not Responsible For Violations CommittedBy Its Maintenance Personnel In The Circumstances ofThis Case K. THE PENALTY SOUGHT BYTHE ADMINISTRATOR IS INAPPROPRIATE CERTIFICATE OF SERVICE ii

34

34
38

38

44


### 47 

## soCASES: Aero Continente

FAA Order 2003-8 (2003) Alaska

FAA Order 2004-8 (2004) Bernstein

NTSB OrderNo. EA-4120 Canaveral (Coupon Clearing)

113 F. 3d 1091 (9th Cir. 1997) Doppes

5 NTSB 50 (1985) Empire

1995 FAALexis 399 (1995) Go

jetAirlines FAA Order 2012-5 (2012) Haddock TABLE OF CASES

NTSB OrderNo. EA-5539 (2010) Husky

FAA Order 2010-8 (2010) Kilrain

FAA Order 1996-18 (1996) Longshoremen's

56 F. 3d 205 (D. C. Cir. 1995) NorthwestAirlines

FAA Order 1990-37 (1990) Phyllisjones

FAA Order 1994-18 (1994) Smith

NTSB OrderNo. EA-5646 (2013) USAir

FAA Order 92-70 (1992) Warbelow

FAA Order 2000-3 (2000) Walker

NTSB Order No. EA-5514 (2010) Whitely

FAA Order 2009-4 (2009) Wilson

NTSB Order No. EA-5646 (2013) Yialamas NTSB Order No. EA-5111 (2004) iii

PAGES: 39,40,41,42 45 49 40, 41,42 35 49 34 35 40 35 40 48 48 35 44 47 35 35 49 48U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D. C. In The Matter Of: Docket No. FAA-2012-0477 LIBERTY FOUNDATION, INC., Case No. 2011-GL-03-0070 Respondent.



# ____________________; RESPONDENT'S POST-HEARING CLOSINGARGUMENT Respondent, The LibertyFoundation ("Liberty"), herewith files its Post-Hearing Closing Argument in accordance with the Court's Order Adopting The Parties' joint Proposed ClosingArgument Schedule, servedjune 17, 2014. I. NATURE OF THE CASE

A. The Original Complaint The Complaint ("Original Complaint") was filed on june 21, 2012, and alleged Liberty violated three provisions of the Federal Aviation Regulations ("FARs"), as follows: 14 CFR 91.405(b) in that Liberty allegedly did not ensure that maintenance personnel made an appropriate entry in the aircraft maintenance records indicatingthe aircraftwas approved for returnto service. 14 CFR 91.407(a) in that Liberty allegedly (1) operated the aircraft after maintenance when it had not been approved for return to service by a person authorized by FAR Part 43; and (2) the maintenance record entry required by 14 CFR43.9 or43.11 hadnotbeenmade. 14 CFR 91.7(a) in that Liberty allegedly operatedthe aircraft when itwas notin an airworthycondition. These legal assertions were based on allegations relating to maintenance in February, 2011, andjune 2011. As to the February, 2011, maintenance, the allegations2

are: (1) Mr. Schneider removed the aircraft's bladder fuel tanks and replaced them with fabricated aluminum fuel tanks; (2) which constituted a major alterationwithout the benefit of approved data, an appropriate field approval and without a supplemental type certificate or any other engineering data acceptable to the Administrator; (3) the aluminum fuel tanks did notconformto thetype design ortype certificatefor theaircraft andrenderedthe aircraftunairworthy; (4) the descriptionin the aircraft's log did not describe the work actually performed in that there was no description ofthe fabrication ofthealuminumfuel tanks or ofthe major alteration; and (5) Respondent operatedthe aircraft inthis unairworthy condition afterthe described maintenance. As to the June, 2011, maintenance, FAA alleged Mr. Schneider performed maintenance on a fuel leak in the #1 fuel tank and in doing so (1) failed to use methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques and practices acceptable to the Administrator; (2) failed to do the work in such a manner and use materials ofsuch a quality that the condition of the aircraft would be at least equal to its original or properly altered condition (with regard to structural strength, resistance to vibration and deterioration, and other qualities affecting airworthiness); and (3) following this maintenance, the aircraft was not in a condition equal to its original or properly altered condition andwas, therefore, unairworthy.

STUART A. GOLDSTEIN, P.A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T, (30S) 670·1222 p, (305) 400·0685 STUARTGOLDSTEINPA@ATT.NET3 B. TheAmended Complaint FAA filed an Amendment To Complaint ("Amended Complaint") on july 31, 2013, which addedfive alleged FARviolations, as follows: 43.5(a) which requires maintenance log entry for return to service after maintenance, etc. 43.9(a) which requires one who performs maintenance, etc., to make an entry in themaintenance record ofthatequipment. 43.9(d) which requires major alterations and major repairs to be entered on a form and the form be disposed ofin a manner prescribed in Appendix BofPart 43. 43.13(a) which requires each person who performs maintenance, etc., use methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to tbe Administrator. 43.13(b) which requires each person who performs maintenance, etc., to do that work in such a manner and use materials of such a quality that the condition ofthe aircraftwill be at least equal to its original or properly altered condition (with regard to structural strength, resistance to vibration and deterioration, and otherqualities affecting airworthiness). These assertions are based on allegations relating to maintenance in February, 2011, andjune, 2011, to the effect that (1) the aircraft was not in a condition for safe operation because tbe june, 2011, fuel leak was caused by a failure of tbe welding performed in or about February, 2011; (2) the aircraft was operated without a required maintenance record entryfollowing thejune, 2011, maintenance because tbe log entry was made after the aircraft was operated following this maintenance; (3) Liberty is responsible for Mr. Schneider's maintenance violations because Mr. Schneider was Respondent's "Director of Maintenance" at the time ofthe june, 2011, maintenance.

STUARTA. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MLAMI, FL 33156 To (305) 670-1222 Fo (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET4

II. ARGUMENT FAA failed to meetits burden ofproofthatRespondentviolated anyofthe cited FARs. FAA's presentation at trial was no more convincing than its Motion For Summaryjudgment with live witnesses, whose testimony and opinions had the same infirmities as their affidavits and declarations. A. FAA DID NOT PROVE LIBERTYVIOLATED FAR43.5(a) BY FAILING TO MAKEA MAINTENANCE RECORD ENTRY PRIORTO THE FLIGHT OF JUNE 13, 2011 1
FAR43.5(a) states: No person may approve for return to service any aircraft, airframe, aircraft engine, propeller, or appliance, that has undergone maintenance, preventive maintenance, or alteration unless the maintenance record entry required by 43.9 or 43.11, as appropriate,has beenmade. FAA proffered no evidence at trial that an appropriate maintenance record entry was not made prior to the flight of june 13, 2011. Not a single FAA witness testified to this effectandno documentaryevidence supportsthis claim. To the contrary, Liberty produced the unrebutted testimony of Mr. Schneider thathe preparedthe maintenance record entryin the aircraft's discrepancylog book, a maintenance record, thathe signedthe entry, and enteredhis A& Pcertificate number, all as requiredbyFAR43.9(a). Tr. 4-24-14, p. 157.2 FAR 43.9(a) provides: 

### Maintenance record entries. Except as provided in paragraphs (b) and (c) of this section, each person who maintains, performs preventive maintenance, rebuilds, or alters an aircraft, airframe, aircraft engine, propeller, appliance, or component part

1The allegations related to Section43.5(a) are limitedto theJune, 2011, maintenancetothe#1 fuel tank leak See, OrderDenying FAA's Motion For Partial Summaryjudgment, etc., p. 12. 2 References tothetranscriptwillbeTr. followed bythe date and page number(s). STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 To [305) 670-1222 Fo (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET5 shall make an entry in the maintenance record of that equipment containing the following information: A description (or reference to data acceptable to the Administrator) of work performed. The date ofcompletion oftheworkperformed. The name of the person performing the work if other than the person specified in paragraph (a)(4) ofthis section. Iftheworkperformed onthe aircraft, airframe, aircraftengine, propeller, appliance, or component part has been performed satisfactorily, the signature, certificate number, and kind of certificate held by the person approving the work. The signature constitutesthe approval for returnto service onlyfor theworkperformed. In addition to Mr. Schneider's unrebutted testimony, Liberty produced the unrebutted testimony ofCaptainjohn Hess, a Delta Airlines' Captain and the holder of not only an Airline Transport Pilot Certificate ("ATP") but also an A & P certificate.3 Captain Hess was Captain on the Liberty Belle on june 13, 2011, and testified that before he flew the aircraft on that day, he personally reviewed the discrepancy log entry. Tr. 4-24-14, p. 121. Captain Hess testified Mr. Schneiderwrote the discrepancy and Mr. Schneider also wrote the sign-off. Tr. 4-24-14, pp. 121-22. Both Mr. Schneider and Captain Hess identified Respondent's Exhibit 14 as the discrepancy log form kept in the aircraft.4 See also, Captain Hess's Declaration (RX 11) wherein he states he personally reviewed the discrepancy log prior to the flight of june 13, 2011, and observed Mr. Schneider's entryrelatedto therepairofthe#1 fuel tankleaks At the hearing, Respondent objected when FAA introduced evidence relating to
an alleged "major repair" violation for the june, 2011, maintenance. Respondent
3 Captain Hess is typeratedinBoeing 757, 767, 737, and B-17 aircraft. Tr. 4-24-14, p. 103. 4 Referencestothe exhibits will beCX for FAA's exhibits and RX for Respondent's exhibits. 5 FAA witness TimothyBourgoine also confirmed Libertyused a discrepancylogform for writingup and clearingdiscrepancies and RX 14is thatform. Tr. 4-22-14,pp. 146, 150. STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 T: (305] 670-1222 F: (305) 400·0685 STUARTGOLDSTEINPA@ATT.NET6 argued FAA had not alleged in either its Complaint or Amended Complaint that the repair performed in june, 2011, to the #1 fuel tankleak was a majorrepair. The Court overruled Respondent's objection. Respondent respectfully renews its objection that FAA never charged, in any pleading, that the june, 2011, repair constituted a major repair and respectfully requests the Court reconsider its ruling for the following
reasons. In the Original Complaint, only Count III relates to the maintenance performed in june, 2011. The relevant paragraphs are 12-17, and only paragraphs 14-16 allege regulatory violations. Paragraph 14 alleges Mr. Schneider failed to use the methods, techniques, and practices prescribed in the manufacturer's maintenance manual or Instructions for Continued Airworthiness or other methods, techniques, and practices acceptable to the Administrator. Paragraph 15 alleges Mr. Schneider failed to do the work in such a manner and use materials of such a quality that the condition ofthe aircraftwould beatleastequal to its original orproperlyaltered condition. Paragraph 16 alleges the aircraft was not in a condition equal to its original or properly altered condition andwas unairworthyfollowing thejune, 2011, maintenance. When FAA filed its Amended Complaint, it did so for the express reason that it learned certain facts from Mr. Schneider's deposition, namely that the june 13, 2011, maintenance entry shown to Mr. Schneider during his deposition (CX 3, p. 8), was not made priorto the flight ofjune 13 and, therefore, FAA alleged no maintenance record entrywas made prior to that flight. Based only on that assertion and Mr. Schneider's status as "Director ofMaintenance," FAA alleged "Respondent is responsible not only for the operational violations originally charged, but also for the underlying

STUART A GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 T' (305) 670·1222 p, (305) 400·0685 STUARTGOLDSTEINPA@ATT.NET7 maintenance violations committed by Mr. Schneider." Amended Complaint, pp. 1-2, (emphasis added). As set outabove, there were no operational violations inthe original Complaint charging thatthejune, 2011, maintenance was a major repair. Further, there were no "underlying maintenance violations" charged against Mr. Schneider in his case asserting thejune, 2011, maintenance was a major repair and none were reflected in the Withdrawal Of Emergency Order Of Revocation And Replacement With Order Of Suspension (Order of Suspension), attached as Exhibit A to the Amended Complaint. The only violations related to thejune, 2011, maintenance in Mr. Schneider's Order of Suspension were 43.13(a) and 43.13(b) which, as described above, relate only to how that maintenance was performed, i. e., the use of methods, techniques, practices, and materials etc. Neither Section 43.13(a) nor Section 43.13(b) contain the term "major repair." As further evidence the FAA never charged either Mr. Schneider or Libertywith performing a major repair related to the june, 2011, maintenance, the Amended Complaint did not even amend paragraph 15 ofthe Original Complaint, but did amend paragraph 16. The amendment to paragraph 16 in its entirety states: "Mr. Schneider did not make a maintenance record entry concerning the june 13, 2011, maintenance before returning the aircraft to service." Amended Complaint, p. 3 (emphasis added). This allegation can onlyrelateto Section43.5(a) andno reading ofthis amendmentcan be stretched to include an allegation the june, 2011, maintenance was a major repair. To further underscore the fact FAA never intended its Complaint or Amended Complaint included a claim the june, 2011, maintenance was a major repair, FAA

STUART A. GOLDSTEIN. P. A. 7300 NORTH KENDALL DRIVE. SUITE 380. MIAMI. FL 33156 T' (305] 670-1222 p, (305] 400-0685 STUARTGOLDSTEINPA@ATT.NET8 counsel described the june maintenance in his opening statement as a "major alteration," not a "major repair." ("You'll also hear from the experts about the repair that was performed in june of 2011 and specifically the problems with that. They'll opine that it was a major alteration but also some ofthem will specifically talk about the way that it was performed in ways that Mr. Schneider admitted in his deposition
were not, which has been submitted were not really great.") Tr. 4-22-14, pp. 50-51 (emphasis added) (Referringto placingthe sealanton the outside ofthetank). Accordingly, because no pleading in this action placed Liberty on notice it had to defend an allegation thatthejune, 2011, maintenance was a "major repair," Liberty respectfully renews its objection that any evidence or arguments suggesting the june, 2011, maintenance was a "major repair" be stricken as notrelevantto, and beyond the charges,in eitherthe Original orAmended Complaints. In the event the Court does not sustain Liberty's renewed objection on the "majorrepair" issue, FAA nevertheless failed to provethejune, 2011, maintenancewas
a "major repair." The FARs havetwo definitions of"majorrepair." Section 1.1 states a "major repair" is a repair (1) that, ifimproperlydone, might appreciably affectweight, balance, structural strength, performance, powerplant operation, flight characteristics,
or otherqualities affecting airworthiness; or (2) thatis not done according to accepted practices or cannot be done by elementary operations." FAA presented no credible evidence that the june, 2011, repair was done improperly or that the repair appreciably affected any ofthe characteristics listed in Section 1.1, or that the repair
was not done according to accepted practices, or was not done by elementary operations. FAA insinuated the sealant should have been packed from the inside, but

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE. SUITE 380,MIAMI, FL 33156 T' (305) 670·1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET9

no witness testified itwas improperor impermissibleto seal thetankfrom the outside. Indeed, FAA's expert, TimothyBourgoine, testified he could not saypacking the sealant from the outsidewaswrong. Tr. 4-22-14,p. 157. Inspector Soerens confirmed there is
no requirement the sealant be put on inside the tank. Tr. 4-23-14, p. 139. Inspector Duellman agreed there is no requirementthe sealantbe placed inside the tank. Tr. 4- 23-14, p. 211. Liberty's evidence consisted of a detailed description by Mr. Schneider of the repair which consisted ofrepairingthe crack at the edge ofthe weld flange by drilling out some of the bolt holes that were originally in the tank so fasteners could be installed through the flange to help pinch it together and keep the crack from spreading. Theyalso packed the crackexternallywith sealer and putboltsthrough the holes. They then took an aluminum Uchannel (also called a Cchannel) extrusion that
was tightfitting and bolted itto the edge ofthe seam. Theythen packed the Uchannel with additional sealer. Thus, there were several layers ofprotection. Tr. 4-24-14, pp. 130-32. Mr. Schneider testified specificallythatitwas not improperto packthe sealer
on the outside ofthe tank. I d., p. 132. Mr. Schneider also testified the sealer he used
was the same sealer he used at Delta Airlines to seal fuel tank leaks. Tr. 4-24-14, p. 129. In addition to Mr. Schneider, there were two other A & P mechanics that devised the repairplan- Captain Hess and Chuck Giese. Tr. 4-24-14, pp. 156-57. Thus, FAA did not prove the repair was done improperly and it certainly did not prove the repair had any effect whatsoever, much less an appreciable effect, on weight, balance, structural strength, performance, powerplant operation, flight characteristics, or other

STUART A. GOLDSTEIN, P.A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 T' (305) 670·1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET

### 10 qualities affecting airworthiness. No FAA witness testified credibly that the repair to theleakwas notdone according to accepted methods, techniques, and practices orthat the repair was not done by elementary operations. As noted above, Mr. Bourgoine testified he could not say packing the sealant from the outside was wrong. FAA witness Soerens testified not all methods, techniques, and practices acceptable to the Administrator arewrittenin the FARs oranywhere else. Tr. 4-23-14, p. 134. Likewise, FAA witness Duellman agreed there was nothing that mandated the leak be sealed from inside. Tr. 4-23-14, p. 211. He also agreed not all methods, techniques, and practices acceptable to the Administrator are in writing. Therefore, where there is no written specification or instruction as to how to perform a particular maintenance operation, anA& P certificate holder is necessarily permittedto use his/herjudgment, skill, and experience to determine appropriate techniques, methods, and practices for the job at hand. This is exactly what Mr. Schneider did. He testified the techniques, methods, practices, tools, and materials he used to repair the fuel tank leak were consistentwith the techniques, methods, practices, tools, and materials he had used in his experience. Tr. 4-24-14, pp. 170-71. Mr. Schneider's considerable hands-on experience consisted of 22+ years as a mechanic at Delta Airlines and his experience building his own airplane. Tr. 4-24-14, pp. 127, 142.6 There is no supportable record evidencetherepairwas relatedto the subsequentfire. 7

6 Mr. Bourgoinetestifiedhe neverhadreasonto complain aboutthe qualityofMr. Schneider's workand believedhewas a "verycapable mechanic." Tr. 4-22-14,p. 183. 7 FAA's statement atpage 9 ofits Closing Argumentthatthe aircraftwas lost "duringthe flight" is false andmisleading. Thereis no supportforthatstatementinthe cited places (CX 17 and Tr. 4-23-14, pp. 33-34). STUART A. GOLDSTEIN, P.A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T' (305) 670·1222 p, (305) 400·0685 STUARTGOLDSTEINPA@ATT.NET11 The other definition of"major repair" is in AppendixAto Part43. It states: (b) Airframe major repairs. Repairs to the following parts ofan airframe and repairs of the following types, involving the strengthening, reinforcing, splicing, and manufacturing of primary structural members or their replacement, when replacement is by fabrication such as riveting or welding, are airframe major repairs. (Emphasis added) (xxviii) Repairing, including rebottoming, of removable or integral fuel tanks and oil tanks. It is stipulated in this case that "neither the removable bladder fuel tanks, nor the aluminum shells, [are] a structural component of the B-17 aircraft." See, Order Denying The FAA's Motion For Partial Summaryjudgment, etc., paragraph 15. Given thatthe definition ofmajor repairs is applicable onlyto "primarystructural members," and thatneitherthe bladder noraluminum fuel tanks are structural members, primary
or otherwise, the repair to the fuel tank leak in june, 2011, was necessarily, by definition, nota majorrepair. B. FAA DID NOT PROVE LIBERTYVIOLATED FAR43.9(a)

RELATINGTO THE MAINTENANCE LOG ENTRY MADE PRIORTO THE JUNE 13, 2011, FLIGHT This claim is essentially the same claim FAA made regarding Section 43.5(a) discussed above. As set forth in the previous section, FAR 43.9(a) delineates the requirements for an appropriate log book entry following maintenance, preventive maintenance, rebuilding, etc. Those requirements are discussed fully in the previous section and need notbe repeated here. Suffice it to say, because FAA did not prove a violation ofFAR43.5(a), italso did notprove aviolation ofFAR43.9(a).

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 331S6 T• (305) 670·1222 p, (305) 400·0685 STUARTGOLDSTEINPA@ATT.NETC. FAA DID NOT PROVE LIBERTYVIOLATED 43.9(a) RELATING TO THE MAINTENANCE LOG ENTRY FOR THE FEBRUARY, 2011, MAINTENANCE OR FAR 91.405(b) RELATING TO THE JUNE, 2011, OR THE FEBRUARY, 2011, MAINTENANCE FAR 91.405(b) states: Each owner or operatorofan aircraft12

(b) Shall ensure that maintenance personnel make appropriate entries in the aircraft maintenance records indicatingthe aircrafthas beenapproved for returnto service. The maintenance record entryfollowing the june, 2011, maintenance made by Mr. Schneider and confirmed byhim and Captain Hess has been discussed previously and need not be repeated here. It is clear from the record Mr. Schneider made an appropriate entry in the aircraft's discrepancy log book. There was no evidence offered by the FAA suggesting Liberty did not ensure such entry be made. To the contrary, both Mr. Schneider and Captain Hess testified it was procedure for such an entryto be made. Tr. 4-24-14, p. 157 (Schneider) and Tr. 4-24-14, p. 121 (Hess). See, also f/n 5 above. To the extent FAA argues the june, 2011, maintenance log entry was not "appropriate," the regulations must be read as a whole to make sense. We have already shown an "appropriate" log entry is defined or described in Section 43.9(a), which requires a description of the work, the date of completion, the name of the person performing the work, and his/her signature/certificate number, which constitutes approval for return to service. Thus, the record demonstrates the FAA did notestablishLibertyfailed to ensure an"appropriate"log entrywas notmade. As to the maintenance log entry made by Mr. Schneider following the February, 2011, maintenance, it is likewise clear the FAA did not prove Liberty failed to ensure

STUARTA. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 331S6 T' (305) 670-1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET13

an appropriate maintenance log entrywas made. 8 In furtherance, ofhis effortto make
an appropriate log entry, Mr. Schneider spoke with two FAA maintenance inspectors (David Alderman and David Miller) who were also volunteers for Liberty in their off time. Tr. 4-24-14, pp. 160-61. Mr. Schneider, along with Mr. Fowler, spoke to Inspectors Alderman and Miller byphone duringthe period "we were gettingreadyto put the tanks back in the airplane before the airplane was restarted on tour." This necessarily was before the date ofthe log entry, February 24, 2011. !d., p. 161. Mr. Schneider wanted to be certain the paperwork for the maintenance was appropriate or, as he put it, "wanting to make sure that we had all the ducks in a row as far as paperworkgoes." !d., p.162. As Mr. Schneider explained (Tr. 4-24-14, pp.162-63): A. We were getting close to the end ofthe tank projects and I was wanting to make surethatwe had all the ducks in a row as far as paperworkgoes. And, so Iwas asking theiradvice. And, Idon'trememberwhich one ofthem asked me, butitwas one ofthetwo Daves, askedmeto describe whatwe had done withthetanks and Itoldhim thatwe had removed them, removed the bladder liners, welded up the ends. Installed new fittings onthem, putthembackin the airplane, leak checked them. Our intentwas to put them back in the airplane leak checked, not when we had them installed yet. And, he read back to me what Ihad said to him and again, I don't know which one of the two ofthem said this, buttheir answerwas, well, that'sjust a minor repair. Any A & P can sign that offthe log book entry. And, okay, what is the bestwayto word this logbookto make surethatwe're covered. 

### Q. Who saidthat? A. Iaskedthatquestion. And, we spenta few more minutes onthe phone going over howthe wording should be, whatreferenceto use, and then I signed offthe book withtheir pattern. Withtheirpattern ofsign offthatthey'd suggested. Q. Did they suggesttoyou any ofthetermsthatwereinyourFebruary24, 2011 log bookentry?

8 To a large extent, the determination whether an appropriate log entry was made following the February, 2011 maintenance (as opposed to a determination whether Liberty failed to ensure such entrybe made). will depend on the Court's ruling whether that maintenance was a major alteration of the B-17's fuel system. To this end, see Section Ebelowfor a full discussion ofthemajoralterationissue. STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 To (305) 670-1222 Fo (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET14
A. Yeah. We prettymuch wentover itword for word. How itshouldbe written down. 

### Q. And you're certain thatthese conversations occurred prior to February 24, 2011. A. Yes This telephone conference was confirmed by Ray Fowler, who testified in his deposition that the conferences occurred and they related to the work on the fuel tanks. 

## ex 27, pp. 14-16. Although there is a disparity between the testimony ofMr. Alderman and Mr. Schneider as to the nature and timing oftheir conversation, Mr. Schneider's testimony should be credited since Mr. Aldermannever denied the conversation described byMr. Schneider occurred (Tr. 4-23-14,p. 23): Q: You don'trecall a phone conversationwithyou and InspectorMiller and Mr. Schneider andRay Fowler? A. No, Ido not. Q. You don'trecall it? A. No, Ido not. 

### Q. You don'tdenythatitoccurred, youjustdon'trecall it? A. Yeah, Ido notdenyit. Ijustdon'trecall anyphone call.

D. FAA DID NOT PROVE LIBERTYVIOLATED FAR 91.407(a) THAT LIBERTY OPERATED N390THWHEN IT HAD NOT BEEN APPROVED FOR RETURN TO SERVICE AND A REQUIRED MAINTENANCE LOG ENTRY HAD NOT BEEN MADE This FAR states: Operation after maintenance, preventive maintenance, rebuilding, oralteration. (a) No person may operate any aircraft that has undergone maintenance, preventive maintenance, rebuilding, oralteration unless

-
STUARTA. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 To (305) 670-1222 Fo (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET

### 15 (1) it has been approved for return to service by a person authorized under Section 43.7 ofthis chapter; and (2) the maintenance record entry required by Section 43.9 or Section 43.11, as applicable, ofthis chapterhas beenmade. As to (1) above as itrelates toboththe FebruaryandJune, 2011, log entries, Mr. Schneider was at all times relevant an FAA certificated mechanic. FAA has never contended Mr. Schneider was not at all relevant times an FAA certificated mechanic. He therefore met the requirements of Section 43.7(b) which states "the holder of a mechanic certificate or an inspection authorization may approve an aircraft, airframe, aircraft engine, propeller, appliance, or component part for return to service as provided in Part65 ofthis chapter." As to (2) above, wehavepreviously shownthereturn-to-servicelog entrymade by Mr. Schneider following both the February and June, 2011, maintenance was appropriate and met the delineated requirements of Section 43.9. To the extent FAA may claim Mr. Schneiderwas not authorized to make the February 24, 2011, log entry because the work constituted a major alteration, please see the discussion regarding major alterations in the next section.
E. FAA DID NOT PROVE THE REPLACEMENT OF THE BLADDER FUEL TANKS WITH THE ALUMINUM FUEL TANKS CONSTITUTED AMAJORALTERATION OF THE FUEL SYSTEM The parties agree this is the central issue before the Courtbecause a number of the regulatory allegations stem from FAA's assertion that the maintenance work performed on the fuel system concluding in February, 2011, constituted a "major alteration." FAA claims that because this work was a major alteration, Respondent violated several FARs. As set out above, these FARs relate to (1) "appropriate" entries STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 331S6 T' (305) 670-1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET

### 16 in the aircraft maintenance records

- 91.405(b); (2) the manner in which the maintenance was performed

- 91.407(a), 43.9(d), 43.13(a) and (b); and (3) the airworthiness ofthe aircraft following this maintenance- 91.7(a). As we showbelow, utilizing any definition of"major alteration" results in a finding FAA did not prove the fuel tankprojectconstituted a "major alteration." (1) MajorAlterationAs DefinedinAppendixATo Part43 "Major Alteration" is defined in the FARs in Appendix Ato Part 43. Part43 is entitled "Maintenance, Preventive Maintenance, Rebuilding, And Alteration." Appendix A is entitled "Major Alterations, Major Repairs, And Preventive Maintenance." The only definition of an airframe (as opposed to engine) major alterationthatappears in Part43 is in AppendixA, and is as follows: (a) Major alterations

- (1) Airframe major alterations. Alterations of the following parts and alterations of the following types, when not listed in the aircraft specifications issuedbythe FAA, areairframe major alterations:, (i) Wings (ii) Tail surfaces (iii) Fuselage (iv) Engine mounts (v) Control system (vi) Landing gear (vii) Hull orfloats (viii) Elements ofanairframeincluding spars, ribs, fittings, shock absorbers, bracing, cowling, fairings, and balanceweights (ix) Hydraulic and electrical actuating system orcomponents (x) Rotorblades (xi) Changes to the emptyweight or emptybalancewhichresultin an increase inthe maximum certificated weightorcenterofgravity limits oftheaircraft (xii) Changes tothebasic design ofthe fuel, oil, cooling, heating, cabin pressurization, electrical, hydraulic, de-icing, orexhaustsystems ( xiii) Changes tothewingorto fixed ormovable control surfaces which affectflutter and vibration characteristics.

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 331S6 T• (305) 670-1222 F• (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET17 Emphasis added. It is clear there are different standards or criteria as to what constitutes a major alteration depending on the part of the airframe involved. Any alteration to the parts listed in items (i)

- (x) is a major alteration. There are no modifying criteria for those parts. Thus, any alteration to the wings, tail surfaces, fuselage, engine mounts, control system, landing gear, hull/floats, certain elements of
an airframe, hydraulic and electrical actuating system/components, and rotor blades, is defined as a major alteration. The major alterations defined (xi)-(xiii), however, are different, and require
more than just any alteration, in and of itself, to constitute a "major alteration". For example, item (xi) requires thatfor analterationto the emptyweightor emptybalance to be a major alteration it must not only be an alteration, butthe alteration must also "resultin an increase in the maximum certificatedweight or center ofgravitylimits of the aircraft." Ifan alteration to the emptyweight or emptybalance does not result in
an increase in the maximum certificated weight or center of gravity limits, the alterationis not, byFAAregulatorydefinition, a major alteration. Similarly, item (xiii) requires that for an alteration to the wing or fixed or movable control surfaces to be a major alteration, itmustnotonlybe an alteration, but the alterationmustalso "affectflutter andvibration characteristics." Ifan alteration to
a wing or a fixed or movable control surface does not affect flutter and vibration characteristics,itis not, byFAAregulatorydefinition, a major alteration. Item (xii), on which FAA's claims center in this case, is written in the same
manner as items (xi) and (xiii), and very differently from items (i)

- (x). Item (xii) requires that for an alteration to the fuel, oil, cooling, heating, cabin pressurization,

STUARTA GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T' (305) 670·1222 p, (305) 400·068S STUARTGOLDSTEINPA@ATT.NET

### 18 electrical, hydraulic, de-icing, or exhaust systems, there mustbe an alteration and that alteration must also constitute "changes to the basic design" ofthe applicable system. Ifalterations to the fuel, oil, cooling, heating, cabin pressurization, electrical, hydraulic, de-icing, or exhaust systems are not changes to that system's "basic design," by definitiontheycannotconstitutea major alteration ofthat system. Mr. Schneider described the work performed on the fuel system during the 2010-2011, winter maintenance period. The aluminum tanks were removed from the aircraft and the bladders were removed from the aluminum tanks. Tr. 4-24-14, p. 159. Upon removing the bladders, the team determined the metal shells were in excellent condition. Later, a determination was made, after consultation with a DER (FAA Designated Engineering Representative), that the aluminum shells could be used as fuel tanks. !d. After the aluminum tanks were removed, they were media blasted to
remove paintand corrosion

- none was found. !d. The aluminum tanks weretakento Cobb Industrial Fabricators where the welding was accomplished. After welding, the tankswere plumbed,leakchecked, and thenreinstalled in the aircraft. !d. The process of changing the vessels that held the fuel was accomplished by not changing the basic design of the fuel system at all. Mr. Schneider described this process. Some flexible fuel lines were replaced with identical new fuel lines that had the same fuel capacityas the old lines; the same fuel pumpswerere-installed; all ofthe original plumbing was re-installed; all of the fittings, electrical connections, and plumbing connections were re-installed. !d., p. 166. Where there had been attach points on the rubber bladders, these were replaced with duplicated new attach points
so the same fitting would screw into the aluminum tanks where the old attach points

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T• (305) 670-1222 F• (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET19

were located so there was no change at all in the plumbing. I d., p. 167. All ofthese fittings and attachments were in the same exact places as theywere when there were bladder liners within the tanks. I d. The same fuel sensors (devices that send fuel quantity information to the cockpit), were re-installed and had the same functionality. Id., p. 168. The vent fuel flow connections in the new system were the same equipment taken from the old system and were in the same places. Id., pp. 168-69. After the project was completed, the system was checked for leaks, capacity, and functionality. I d. In terms ofthe capacity ofthe aluminum tanks as compared to the bladder liners, Mr. Schneider stated theyfound a difference ofonly 2 - 3 gallons in the big tank (a 425 gallon tank). The B-17 fuel system in the Liberty Belle held 1700 gallons, or 10,200 pounds. Id., p. 170.9 Cullen Underwood further described the fuel tank project. They contacted two DERs (Rocky Howard and Terry Bowden), with whom Mr. Underwood personallyhad conversations about the project. Tr. 4-24-14, p. 241. A $500.00 retainer check was sent to DER Bowden. I d., p. 242. Mr. Underwood sent certain drawings ofthe shells and their supportsystems to DER Howard. I d. Ultimately, DER Howard saidthat since B-17s had previous aluminum fuel tanks, he did not have an issue with using the aluminum shells as longastheymaintainedthe attach points. Id., pp. 242-43, 246.10 David Wilkins, owner of Cobb Industrial Fabricators, testified his company performed the welding operations on the aluminum tanks. Tr. 4-24-14, p. 193. After the tanks were received, they were cleaned and patches were made. Cobb received
9 The two main tanks hold425 gallons each; two feedertanks hold 213 gallons each andtwo other feedertankshold 212 gallons each. 

### ex 20, p. 193. Agallon ofaviationfuel weights sixpounds. 1

# ° FAA Inspector Duellman testified later model B-17s were manufactured with aluminum fuel tanks. 

### ex 33; Tr. 4-23-14, pp. 205-06. STUARTA.GOLDSTEIN, P.A. 7300NORTHKENDALLDRIVE,SUITE380,MIAMI,FL 331S6 To (305] 670-1222 Fo (305]400-0685 5TUARTGOLDSTEINPA@ATT.NET20 fittings from Mr. Underwood and welded all the fittings and path plates in place. !d. Mr. Wilkins did not personally perform the welding; three welders who each had betweentwentyand forty years ofwelding experience performed the welding. !d. Mr. Wilkins inspected the welding and found it was satisfactorily performed. !d. Mr. Wilkins' participation in the projectwas direct and personal, including supervisingthe welding ofthevarious openings onthe aluminum fuel tanks. RX 10. Each ventandfuel flow connection was welded to the tank using AN bung fittings; the fuel caps, boost pumps, and level sensor mounts wereweldedto thetanks inthe appropriateand same locations as before. Id. All fittings were made from 6061 aluminum and all welding
was done using the TIG method and the filler rod was 4043, which is what is recommended by all manufacturers for welding these alloys. 11 !d. No leaks were found and Mr. Wilkins consideredthewelding normal. !d. The testimony ofMessers. Schneider, Underwood, and Wilkins established there
was no change in the "basic design" ofthe fuel system. They testified that, except for the change ofthe vessels that held the fuel, there were no changes in the basic design ofthe fuel system and the system operated the same before and after the project. As described above, all ofthe hoses, fittings, plumbing, pieces, and parts ofthe fuel system when it had bladder tanks, were the same and in exactly the same places, when the fuel-holding vessels were changed to aluminum. FAA's witnesses agreed. Mr. Bourgoine said the purpose ofthe fuel system is to receive and store fuel in a safe
manner and deliver clean fuel to where it's needed- the engines. Tr. 4-22-14, p. 179. The system has fuel selector valves, transfer pumps, etc., to accomplish this purpose. 11 Mr. Bourgoine agreed TIG weldingwas appropriate. Tr. 4-22-14, p.162.

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 r, (305) 670·1222 p, (305) 400·06BS STUARTGOLDSTEINPA@ATT.NET21
Id. Mr. Bourgoine agreed the new system performed these functions. Id. 12 The design ofa fuel system is, axiomatically, to support its purpose, which is to store and deliver clean fuel to the engines. It does this through a series oftanks, fuel lines, fuel pumps, carburetors, filters, ventlines, etc. No FAA witness could or did testifythis basic design
was changed or that the project changed the purpose of this fuel system. FAA's suggestion at page 3 ofits Closing Argument that Liberty should somehowbe faulted for wanting to save money is ludicrous. Ifthatis truly FAA's position, it needs to have
some serious conversations with ourmajor airlines. Inspector Soerens offered no testimony in support of the FAA's case that the basic design ofthe fuel system had been changed. He agreed the fuel system after the project contained fuel as it did before; he did not know ifthe fuel pumps operated the
same after the project as before; he agreed the fuel lines operated the same after as before; he did not know ifthe vent lines, fuel sensors, and sumps operated the same after as before. Tr. 4-23-14, pp. 121-23. Inspector Soerens either agreed there were
no changes orhe did notknow ifthere were changes. Thus, his testimonywas far too inclusive to support FAA's claim that the basic design of the fuel system had been changed. Similarly, Inspector Duellman's testimony revealed he was without sufficient knowledge to form an opinion that can be relied upon by the Court, although he did agree the purpose of a fuel system is to deliver fuel to the engines and the Liberty Belle's fuel system did just that before and after the project. Tr. 4-23-14, p. 195. He admitted his conclusion the Liberty Belle was originally manufactured with bladder 12 Mr. Bourgoine's statementthatthe system was notthe samebecauseiteventuallyleaked, says nothingaboutits basic design. STUART A. GOLDSTEIN. P. A. 7300 NORTH KENDALL DRIVE. SUITE 380. MIAMI. FL 33156 To (305) 670·1222 Fo (305) 400·0685 STUARTGOLDSTEINPA@ATT.NET22 fuel tanks came from speakingwith others, i.e,was hearsay. /d., p. 196. His conclusion the bladdertanks were 2¥z

- 3 inches thick also came from others. Tr. 4-23-14, p. 208. His statement the aluminum tanks held about 100 more gallons of fuel than the bladdertankswas made up on the stand andwas purely a guess. Tr. 4-23-24, pp. 209- 10. Thus, Inspector Duellman's testimony also was too inconclusive and too unreliable to supportFAA's claims. In contrast to Liberty's evidence, FAA produced no witness who testified from first-hand knowledge about the project. All of the FAA's "expert" testimony of Mr. Bourgoine, Inspector Soerens, and Inspector Duellman as to what was accomplished
was hearsay, based on what someone else told them. Tr. 4-22-14, pp. 152-53 Bourgoine; Tr. 4-23-14 pp. 104-05 Soerens; Tr. 217-18 Duellman. None ofthe FAA's witnesses physically observed the work and could only guess and surmise as to what
was accomplished. Mr. Bourgoine never inspected the fuel tanks. Tr. 4-22-14, p. 181. Indeed, all of these witnesses conceded at trial they did not even prepare their affidavits/declarations. Mr. Bourgoine testifiedhe did notwrite his affidavit (Tr. 4-22- 14, p. 164) and it is clear the information came from FAA counsel who inserted his arguments and legal conclusions regarding major/minor alterations, etc. Inspector Soerens also testified he did not write his affidavit and stated the information in it (including the legal conclusions) came from counsel. Tr. 4-23-14, pp. 105-06. He also stated some ofthe information in his affidavit came from Inspector Duellman. Tr. 4- 23.14, p. 107. The information in Inspector Duellman's affidavit (including the legal conclusions) came to him by email. Tr. 4-23-14, p. 217. That all of FAA's "expert" witnesses formed their opinions after they received affidavits prepared by FAA

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 To (305) 670-1222 Po (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET23 counsel or others, denigrates their testimony to the point it cannotbe relied upon to supportFAA's claims. In contrast to the inconclusive and unreliable testimony of the FAA's witnesses, Libertyproduced a true B-17 expert
- Gary Norville. Mr. Norville owns and operates AmericanAero Services, a "warbird" restoration and maintenance facility, in New Smyrna Beach, Florida. Tr. 4-24-14, p. 58. By "warbird," Mr. Norvile means former military aircraft, primarily World War II and Korean War vintage aircraft. Jd. Mr. Norville has been in the business of restoring and maintaining these warbird aircraftfor approximately 26 years, since 1986-87. Tr. 4-24-14, p. 59. Mr. Norville has
an A & P certificate and an Inspection Authorization (lA). Jd. The lA allows Mr. Norville to perform annual inspections and sign them off (return the aircraft to service) and sign offFAA form 337s (major alterations/major repairs) on behalfofthe FAA. Jd.13 Mr. Norville performs ground-up restorations of warbird aircraft in his business

- meaning total disassembly ofthe aircraft, restoring all ofthe systems and bringing the aircraft back to airworthy flying status. Tr. 4-24-14, p. 60. Mr. Norville regularly performs maintenance and preventive maintenance on two B-17s

- one owned by The Collings Foundation and one owned by The Fighter Factory. Tr. 4-24- 14, p. 62. Mr. Norville has also maintained The Collings Foundation's B-24 aircraft (the only one inthe world presentlyflying). Tr. 4-24-14, p. 63. The B-24 is a World War II four radial engine heavy bomber. He also maintains or has maintained a B-25 aircraft
- a World War II two radial engine medium bomber. Jd. The Court qualified Mr.

13 Mr. Norville's InspectionAuthorization is active and on-going, unlike FAA witnesses Soerens and Duellmanwhohave notutilizedtheir !As sincejoiningtheFAA. InspectorSoerens no longerpossesses his lA. STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 To (305) 670-1222 Fo (305) 400·0685 STUARTGOLDSTEINPA@ATT.NET24 Norville as an expert in "aviation maintenance and in B-17 maintenance and restoration." Tr. 4-24-14,p. 68. Mr. Norville testified the purpose ofthe fuel systeminthe B-17 is to provide fuel to the engines so the engines will run. Tr. 4-24-14, p. 81. This is accomplished throughfuel tanks, fuel boostpumps, andfuel lines, which send fuel to the carburetors. I

d. Based onhis 28 years ofexperience maintaining and restoringwarbird aircraft, Mr. Norville understands the term "major alteration" as it applies to warbird aircraft. Tr. 4-24-14, p. 86. As it specifically applies to B-17 aircraft, "major alteration" means changing of control surfaces, and the gross weight ofthe aircraft. Id. As it applies to the B-17's fuel system, "major alteration" "would be changingthe flow ofthe fuel pump to a lessororhighervalue, re-routingthefuel lines, and adding extrafuel tanks." I d. As itrelates to the gross weight ofthe aircraft, Mr. Norville testified merely changing the grossweight ofthe aircraft inthe fuel systemwould notchange the basic design ofthe fuel system. He explained (Tr. 4-24-14, p. 95): Because you're still withinyour still within your allowable gross weight. When I said it first, it made it sound like you're changing the gross weight but there's an envelopeyou're allowed in. You're notexceedingyour gross weight, you're still within yourCG envelope so you'renot,you're not, you don'thave amajoralteration. Mr. Norville further explainedthe B-17 has a large and verylong CG envelope. Tr. 4-24-14, p. 98. As B-17s are operated today, they are well within their CG envelope and well under their maximum allowable gross weight. Id. In wartime, B-17s would go on missions carrying full fuel, 12 fifty caliber machine guns, and 10,000 pounds of bombs. Theywould comeback, obviouslymuchlighter since theywere much lower on fuel, have no bombs and much less ammunition, and still be within their allowable CG envelope and weight envelope. Id. Given Mr. Norville's maintenance credentials and STUART A. GOLDSTEIN. P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 To (30S) 670-1222 Fo (30S) 400-068S STUARTGOLDSTEINPA@ATT.NET25 his extensive experience (22+ years) maintaining and restoring warbird aircraft, including regularlymaintaining two B-17s, his opinionthattheworkperformed onthe Liberty Belle was not a major alteration should be preferred over the unsupported opinions ofFAA's "expert" witnesses.14 Liberty believes the record amply establishes FAA failed in its burden to prove the fuel tank project was a "major alteration" as defined in Appendix Ato Part 43 for the reasons set out in detail above. However, should the Court rule changing the vessels that held the fuel was a change in the basic design ofthe Liberty Belle's fuel system, FAA will still have failed in its burden of proof. Item (a)(xii) requires**"change~"** (emphasis added) to the basic design ofthe fuel systemto constitutea major alteration. Changing only the vessels that held the fuel is just one change. FAA absolutely failed to prove there were any other changes to the basic design of the Liberty Belle's fuel system and Liberty's evidence as set outin detail above establishes therewere none. (2) MajorAlterationAs DefinedIn FAR Section 1.1 FAA also claims the maintenance on the fuel tanks constituted a major alteration
as thatterm is defined in FAR Section 1.1, entitled "General Definitions:" As used in Subchapters A through K of this chapter, unless the context requires otherwise (emphasis added): 

### Major alteration means an alteration not listed in the aircraft, aircraft engine, or propeller specifications

- -
14 One of the more specious claims in FAA's Closing Argument is at page 22 where FAA writes Mr. Norville "testifiedthatprettymuch anychange inthe fuel system wouldbe a change inthe basic design
.

. ."citingTr. 4-24-14,pp. 81, 86, 96-7. Mr. Norville said no suchthingas the Courtwill see whenitreads those pages. This misrepresentation oftherecord demonstrates FAA's willingness to say or do anything to prevail in this case. STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI. FL 33156 T' (305) 670-1222 p, (305) 400-0685 5TUARTGOLD5TEINPA@ATT.NET26 (1) That might appreciably affect weight, balance, structural strength, performance, powerplant operation, flight characteristics, or other qualities affecting airworthiness; or (2) That is not done according to accepted practices or cannot be done by elementary operations. Emphasis added. The very general and undefined terms used in this definition of "major alteration," such as "might appreciably affect," "accepted practices," and "elementary operations" contrastsharplywith the precise definition of"major alteration" in Appendix Ato Part 43 discussed above. Therefore, reading Section 1.1 in contextwith Appendix Ato Part 43 strongly suggests giving preference to the more detailed and specific definition in Appendix A. In further support of this interpretation, the second paragraph of FAR 43.9(a)(4) states: "In addition to the entry required by this paragraph [relating to alterations, etc.], major repairs and major alterations shall be entered on a form, and the form disposed of, in the manner prescribed in Appendix B [to Part 43], by the person performing the work." Emphasis added. There is no similar reference to adherence to Section 1.1.15 FAA's claim thattheworkperformed onthe fuel tankswas a "majoralteration" as defined in Section 1.1 relies on Mr. Bourgoine's Affidavit and testimony.16 The applicable portions ofthatAffidavit (as well as Mr. Bourgoine'stestimony), paragraphs 20-22, are a series ofconjectures, guesses, and hypotheticals which are not sufficient to supporta plausible expertopinion.

15 To the same effect, Inspector Soerens testified he prepared FAA's Enforcement Investigative Report (EIR) in which, whenreferencing major alterations, he referenced onlyAppendixAto Part43, butmade no referencewhatsoeverto Section 1.1. Tr. 4-23-14, pp. 99-100. 16 CX 35. Mr. Bourgoine'stestimonymirroredhisAffidavit. STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T• (305) 670-1222 F• (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET

### 27 In paragraph 20, Mr. Bourgoine opines as a reason the alteration was a major alteration, that one of the welds resulted in a crack several months later. This reasoning would mean any alteration or repair that subsequently fails, is a major alteration. This cannot be the meaning intended bythe FARs, especially when read in context with Appendix A. It clearly contradicts the more precise definition of major alteration in Appendix A to Part 43, discussed above. The two definitions cannot logicallybereadharmoniouslytogether. In paragraph 21 ofhis Affidavit, Mr. Bourgoine further conjectures theremoval of the bladder tanks "could" have had an appreciable effect on the airworthiness ofthe aircraftand its fuel system. There is no fact-based supportin Mr. Bourgoine'sAffidavit,
or in his testimony, which comes even close to establishing this assertion and it is directlycontradicted byMr. Norville's testimony. Mr. Bourgoine goes on to conjecture that "the alteration increased the fuel capacity of the aircraft." Again, there is zero factual support in the record for this claim (other than the 2-3 gallons mentioned by Mr. Schneider) and it is contrary to the Declarations and testimony ofMr. Schneider and Mr. Underwood who havepersonal, first-hand knowledge oftheworkperformed. Adding conjecture upon conjecture, Mr. Bourgoine stated the increased fuel capacity "affec[ted] weight and balance and possible stresses placed on the wing structure." Emphasis added. Not only does Mr. Bourgoine not supporthis claim ofan increase in fuel capacity, he does not say, because he cannot say, how much fuel capacitywas increased, nor does he provide engineering or technical supportthatthe alleged increase in fuel capacity had any effect whatsoever of stresses on the wing structure. These guesses were directly contradicted by Mr. Norville's testimony

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 T' (305) 670-1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET28 discussed above as well as by Inspectors Soerens and Duellman, who conceded this aircraft (and all aircraft) have center ofgravity (CG) andweight and balance envelopes and so long as the aircraft is operated within those envelopes, the aircraft is safe and airworthy. Inspector Soerens did not know the difference in weight, if any, resulting from the project and did not know if any such difference caused the aircraft to ever operate outside its CG or weight and balance envelopes. Tr. 4-23-14, pp. 129-31. Nor did he evenknowthe CG numbers for the Liberty Belle. I d. Inspector Duellman agreed aircraft can be operated at various weights and still be within their CG and weight limits. Tr. 4-23-24,pp. 205-06. Mr. Bourgoine then says these added stresses (which he does not supportwith facts) made the aluminum tanks "more susceptibleto vibrational stresses in ways that
a bladder fuel tank was not." This conclusion is given to the Court with absolutely no supporting bases in fact and Mr. Bourgoine never offered any evidence regarding "vibrational stresses" onbladdervis-a-vis aluminum fuel tanks. IfMr. Bourgoine orthe FAA had access to data to support these frivolous claims, they would have presented that data at the hearing. In the same vein, Mr. Bourgoine asserts "an aluminum fuel tank would not respond the same way to the stresses of the in-flight motion of thousands of pounds of aviation fuel as a semi-rigid bladder tank would." Mr. Bourgoine makes this unsupported claim applicable to all aluminum tanks as he does notrefer to as the aluminumtanks in N390TH, butto "an" aluminum tankP

17 Inthis regard, FAA continued inits unsupported guess thatthebladdertanks hadbaffles withinthem, thus supposedlymakingthem less susceptibleto "stresses" ofsome sortthanthe aluminumtanks which FAA claims did nothave baffles. Thatthe bladders did nothave baffles was confirmedbyMr. Schneider who actually sawthattheyhad nobaffles. Tr. 4-24-14, p.l69. STUART A. GOLDSTEIN, P.A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 T• (305) 670-1222 F• (30S) 400-0685 STUARTGOLDSTEINPA@ATT.NET29 Mr. Bourgoine concedes in his Affidavit the newly fabricated fixtures and attachments "may or may not have been of equal quality with the components they
were replacing." This guess is directly contraryto the direct-knowledge testimony of Mr. Schneider and Mr. Underwood that the fixtures, fittings, and other components
were either the same parts taken out or, in the case ofattach points, exact duplicates. Assuming theywere ofequal quality, Mr. Bourgoine goes onto speculate, becausethey
were attached to an aluminum tank as opposed to a bladder tank "could impact how they responded to stress during flight." Emphasis added. As with all of Mr. Bourgoine's assertions in paragraph 21 and in his testimony, FAA failed to provide any basis in factto supportits claims, such as engineeringdataortestresults. Appropriately, Mr. Bourgoine concludes paragraph 21 emphasizing the nonfoundational bases ofhis claims: "All ofthese potential issues were ways in which the alteration mighthave affected the qualities affecting the airworthiness ofthe aircraft
.. " Emphasis added. In paragraph 22 ofhis Affidavit and in his testimony, Mr. Bourgoine reaches the astounding conclusion that "the fabrication of new fuel tanks out of the aluminum shells was a major alteration because fabricating components and welding of this nature are not an "elementary operation." Neither FAA, nor Mr. Bourgoine, provide a definition of "elementary operations" other than Mr. Bourgoine's testimony that the welding would not be an elementary operation for most A & Ps. Tr. 4-22-14, p. 122. He does not say how the work done on the aluminum tanks was not an elementary operation. Moreover, his unsupported conclusion was contradicted by Mr. Wilkins who testified the welding was non-complex and simple and that the materials used

STUART A. GOLDSTEIN. P. A. 7300 NORTH KENDALL DRIVE. SUITE 380.MIAMI. FL 33156 T' (305) 670-1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET30

were appropriate for the project. Tr. 4-24-14, p. 196. Mr. Bourgoine conceded on
cross examination that it was good the welding was accomplished by professionals ("I think itwas [a] simple, non-complexjob for a professional welding agency"). Tr. 4-22- 14,p. 157. To the extent FAA relies on the Affidavit and/or testimony ofInspector Soerens, his Affidavit and testimony are filled with the same speculation and lack of foundational supportas Mr. Bourgoine's Affidavit and testimony such thatthey cannot support FAA's claims. For example, Inspector Soerens is familiar with the fuel tank work only in "general terms." Soerens Affidavit, para. 9. He does not, and cannot, knowthe detail ofthework as described in Liberty's Declarations andthetestimonyof Mr. Schneider, Mr. Underwood, and Mr. Wilkins. Inspector Soerens goes through the
same faulty analysis regarding FAR Section 1.1 as does Mr. Bourgoine. Jd., paras. 12- 17. As examples only, he too alleges the fuel tankwork "increased the fuel capacity of the aircraft" (para. 14), but offers zero factual basis for this claim. He too alleges the fuel tank work "affect[ed] the weight and balance and possible stresses placed on the wing structure" (Id.), but offers zero factual support. He too mistakenly talks about baffles in thebladdertanks, despitethefact therewerenone. Inspector Soerens also states the welding "introduc[ed] numerous potential weaknesses into the system butcan referto only one crackthat occurred four months later. Jd. Again "potential weaknesses" do not support FAA's claims in the face of Liberty's testimony and Declarations. He too refers to the B-17 Structural Repair Handbook's "prohibition ofwelding aluminum structural members, but admits in the

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 T' (305) 670·1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET31

same sentence that fuel tanks are not structural members. !d. Emphasis added. 1 B He too talks aboutthe welding components onto the aluminum fuel tanks as notbeing an "elementary operation," but, as with Mr. Bourgoine, cannot provide a regulatory definition of an "elementary operation" and was contradicted by Mr. Wilkins' expert testimony. FAA is required to produce evidence. not guesses, that satisfies the evidentiary requirements of the regulations." FAA's attempt to rely on 

## ex 23 (FAA Order 8900.1) is misplaced. That document is issued to FAA Inspectors as a guide. is not regulatory (Tr. 4-23-14, pp. 112-13), and is certainly not binding on owners/operators. The clear language of Appendix A to Part 43 discussed in detail abovetrumpstheinconsistent "guidance" of

## ex 23. 19
F. FAA DID NOT PROVE LIBERTYVIOLATED FAR43.9(d) BECAUSE THERE WAS NO MAJORALTERATION OR MAJOR REPAIR This FAR states: In addition to the entry required by paragraph (a) ofthis section, major repairs and major alterations shall be entered on a form, and the form disposed of, in the manner prescribedinAppendix B, bythe personperformingthework. For the reasons detailed in the previous section, FAA did not prove the maintenance relating to the fuel tank projectwas a major alteration and, therefore no Form 337 was required. Tr. 4-22-14, p. 187 (Bourgoine). Similarly, because FAA did

18 Given Inspector Duellman's testimony referred to above relating to B-17s constructed with aluminum fuel tanks, and the permission in the Structural Repair Handbook to weld aluminum, Inspector Soerens' testimonyin this area mustbedisregarded. 19 The Order clearly contradictsAppendix Ato Part43 which requires "changes" to thebasic design. It also contradicts the modifying language in Section 1.1. To give credence to the Order as FAA suggests requiresre-writingAppendixAand Section 1.1 and eliminatingthe inconsistentlanguage of8900.1.

STUART A. GOLDSTEIN. P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 331S6 T: (305) 670-1222 F: (305) 400-0685 STUARTGOLD5TEINPA@ATT.NET32
notprove the maintenance performed on the fuel tankleak injune, 2011, was a major repair, no Form 337was required. G. FAA DID NOT PROVE LIBERTYVIOLATED FAR43.13(a) RELATING TO METHODS, TECHNIQUES, PRACTICES, TOOLS, EQUIPMENT, AND TEST APPARATUS This FAR states: Performance rules (general). (a) Each person performing maintenance, alteration, or preventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, and practices acceptable to the Administrator, except as noted in §43.16. He shall use the tools, equipment, and test apparatus necessary to assure completion of the work in accordance with accepted industry practices. If special equipment or test apparatus is recommended bythe manufacturer involved, he must usethatequipmentorapparatus orits equivalentacceptableto theAdministrator. There are two parts to this FAR. The first deals with methods, techniques, and practices and the second deals with tools, equipment and test apparatus. FAA's claim under this FAR is that since replacing bladder tanks with aluminum tanks is not covered in the "current manufacturer's maintenance manual or Instructions for Continued Airworthiness" it was in violation ofthis FAR. The plain language ofthis FAR is muchbroaderthan FAA claims. As to methods, techniques, and practices, compliance with this FARis achieved in any one of three ways. Using the manufacturer's maintenance manual; using its Instructions for Continued Airworthiness; or using unspecified methods, techniques, and practices acceptable to the Administrator. Neither the current manufacturer's maintenance manual nor its Instructions for Continued Airworthiness cover replacing bladder fuel tanks with aluminum fuel tanks. However, welding aluminum parts is covered in the B-17 Handbook-Structural Repair Instructions (RX 15). At page 240 of

STUARTA. GOLDSTEIN, P.A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 331S6 T' (30S) 670·1222 p, (30S) 400-068S STUARTGOLDSTEINPA@ATT.NET33 that Exhibit under the heading "WELDING" is the following statement: "The succeeding discussion pertains only to steel parts in this airplane, since welding of structural aluminum-alloypartsis prohibited." Emphasis added. It is stipulatedinthis
casethatneitherthebladdernoraluminum fuel tanks are structuralmembers. The third way to comply with FAR 43.13(a) is to accomplish the work using methods, techniques, andpractices "acceptableto theAdministrator." The FARs do not specify what welding methods, techniques, and practices are acceptable. It would be impossible for the FAA to be that specific regarding every type of maintenance performed on aircraft.20 However, FAA provides guidance in this area in its Advisory Circular AC 43.13-18 (RX 21). This AC is entitled "Acceptable Methods, Techniques, And Practices

- Aircraft Inspection And Repair." Paragraph 4-86d ofSection 4 ofdeals withwelding and specificallyapprovesTIG welding: d. Gas Tungsten Arc Welding (GTAW). This is the form of electric arc welding that fills most ofthe needs in aircraft maintenance. It is more commonly known as TungstenInertGas (TIG) welding andbythetradenames ofHeliarc or Heliweld. Thus, it is a method, technique, and/or practice acceptable to the Administrator. This is the type ofweldingreferred to byMr. Schneider, Mr. Underwood, and Mr. Wilkins in their Declarations and testimony. Mr. Schneider specifically testified the techniques, methods, practices, tools, and equipment that were used to repair the fuel leak were consistentwiththe techniques, methods, practices, tools, and materials he had used in his morethantwo decades ofmaintenance experience. Tr. 4-24-14,p.170.

20 As previously noted, FAA's witnesses agreed that not all methods, techniques, and practices acceptable to the Administrator are written in the regulations: Tr. 4-23-14, p. 134 (Soerens); Tr. 4-24- 14, p. 212 (Duellman- notinwriting anywhere). STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T: (305] 670-1222 F: (305) 400-0685 STUARTGOLDSTEINPA@ATT.NETThis FAR states:H. FAA DID NOT PROVE LIBERTYVIOLATED FAR43.13{b) RELATED TO THE MANNER OF THE WORK PERFORMED AND THE QUALITY OF THE MATERIALS USED 34

(b) Each person maintaining or altering, or performing preventive maintenance, shall do that work in such a manner and use materials of such a quality, that the condition of the aircraft, airframe, aircraft engine, propeller, or appliance worked on will be at least equal to its original or properly altered condition (with regard to aerodynamic function, structural strength, resistance to vibration and deterioration, and other qualities affecting airworthiness. We have already discussed the quality of the materials used in the subject maintenance in both February and June, 2011, including the aluminum fuel tanks that
were already in the aircraft, the welding materials, and the other parts of the fuel system that were used in the conversion from bladder to aluminum. The details are also set outinthe Declarations ofMr. Schneider, Mr. Underwood, and Mr. Wilkins. The opinions of Mr. Schneider and Mr. Norville are that the materials used caused the condition of the fuel system to be at least equal to its original or properly altered condition.
I. FAA DID NOT PROVE LIBERTY OPERATED LIBERTY BELLE IN AN UNAIRWORTHY CONDITION IN VIOLATION OF FAR 91.7{a) FAR 91.7 states: Civil aircraft airworthiness: (a) No person mayoperate a civil aircraftunless itis in anairworthycondition. The term "airworthy" has been defined by the Administrator and the NTSB in several cases. In The Matter OfGo jetAirlines, LLC, FAA Order No. 2012-5, at 6, 2012 WL2588551 (May 22, 2012) set out the following definition: "The Administrator has held that to be airworthy, an aircraft must satisfy both prongs of the following twopronged test: (1) the aircraft must conform to its type design approved under a type STUARTA. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 T' (305) 670-1222 F' (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET35 certificate or supplemental type certificate and to applicable airworthiness directives; and (2) it must be in condition for safe operation." 21 Citing, In The Matter OfWhitley, FAA Order No. 2009-4 at 12 (January 14, 2009), quoting In The Matter Of Kilrain, FAA Order No. 1996-18 at 10 (May 3, 1996), petitionfor reconsideration denied, FAA v. Kilrain, No. 96-3587 (3d Cir. May 1, 1997). NTSB decisions hold to the same definition of "airworthiness." Administrator v. Smith, NTSB Order No. 5646, 2013 WL 316198 (January 16, 2013): "Airworthiness under 91.7(a) requires an aircraft comply with its type certificate andbein a condition for safe operation" (emphasis inthe original). See also, Administrator v. Doppes, 5 NTSB 50, 52 n.6 (1985), Administrator v. Haddock, NTSB Order No. EA-5539, at 11 (2010), andAdministratorv. Walker, NTSB Order No. EA-5514 at 16-17 (2010). The B-17 models F and Gtype certificate (CX 2) is very brief

- about one and
one third pages. In the middle ofthe first page underthe heading "EQUIPMENT" is the following statement: "No equipment other than engines and propellers are specified. However, the equipmentrequired by Civil Air Regulation Part43.30 for NC aircraftfor proper operation of the aircraft must be installed." Therefore, the material out of which the fuel tanks are made is not specified in the type certificate ofthe aircraft orin the Civil Air Regulations. Because the material out ofwhich the fuel tanks inthe B-17
are made is not specified in the type certificate, FAA cannot, and did not, prove N390TH did not conform to its type certificate after the change from bladders to aluminum. See, Administrator v. Smith, supra, in which the NTSB held the

21 FAA has neverpresented a supplementaltype certificate orairworthiness directives applicable in this case. STUARTA. GOLDSTEIN, P.A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T' (305) 670-1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET36 Administrator must present all documents necessary to show a failure to comply with
anaircraft's type certificate. FAA witnesses made reference to note 3 of the type certificate as evidence Liberty Belle was operated in an unairworthyconditionbecause itwas allegedly notin conformitywith its type certificate. Note 3 states in pertinentpart: All structural repairs should be made in accordance with Army T.O. No. 01-ZOE-3. If any repairs or modifications (other than those covered in the pertinentArmy or Navy repair manual) are made prior to or subsequent to NL certification, it is the responsibility of the owner to furnish sufficient evidence to a Civil Aeronautics Administration representative to showthat the modified airplane maintains the same degree ofairworthiness as the original. Emphasis added. There are two obvious errors in FAA's argument. First, the parties stipulated that neither the bladder nor the aluminum fuel tanks are structural members ofthe aircraft. See, Order Denying The FAA's Motion For Partial Summary Judgment, etc., paragraph 15. Consequently, note 3 is completely inapplicable to the issues in this
case. Second, note 3 relates only to repairs. not alterations. All parties agreed the work on the fuel tank project was an alteration, the dispute being whether the alteration was major or minor. Further, FAA never presentedArmyT. 0. No. 01-ZOE-3 and, therefore cannot, and did not, showany non-conformity with thatT. 0. For these reasons, FAA failed to prove the first prong of the definition of "airworthy," that N390TH did notconform to its type certificate. FAA also did not prove the second prong ofthe definition- that N390TH was not in condition for safe operation after the project was completed. FAA's only evidence on this issue is that a crack developed some four months later in one ofthe welds performed byprofessional welders of20

- 40 years experience. Ifa subsequent failure ofmaintenance is the testfor determiningthatan aircraftis notin condition for STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 T' (305) 670·1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET37 safe flight, every subsequent failure of a part or repair would mean previous maintenance rendered the aircraft unairworthy from the date ofthe maintenance or repair, despite the fact thattheworkwas performed byprofessionals with manyyears of experience and signed off accordingly. The test of safe operation as related to maintenance must logically be determined at the time the maintenance/repair is accomplished, notmanymonths later.2z FAA also failed to prove Liberty operated Liberty Belle contrary to the requirements ofits Special Airworthiness Certificate ("SAC") (RX 17). The Operating Limitations ("OL") are referenced in the SAC and are exceedingly brief. 23 It requires the aircraft be operated in accordance with FAR 91.315 which states in its entirety: "No person may operate a limited category aircraft carrying persons or property for compensation or hire." As we know, however, FAA specifically authorized Liberty to operate its limited category B-17 for compensation or hire pursuantto an Exemption dated june 30, 2010. RX 20. The OL also require the aircraft to be "operated at all times within the limitations setforth in T. 0. AN01-EG-1." FAA never produced a copy ofthis T. 0. and, therefore, failed to prove the aircraft was not operated in accordance with its SAC. The Exemption also requires Liberty to operate its B-17 in accordance with (1) the maintenance requirements as specified in the appropriate type certificate data sheet, as amended; (2) FAA approved maintenance inspection program thatmeets the requirements of 91.409(c), (t)(4) and (g); and (3) the appropriate military technical

22 The crackappeared onjune 11,butthe exact date ofthe weldingis notknown. We knowonlythatit was accomplished sometime priorto the date ofthelog entry- February 24, 2011. 23 CX 1, the SAC does notinclude a copyofthe OL. STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 331S6 T' (305) 670-1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET38 manuals. As discussed immediately above, FAA failed to prove Liberty did not operate in accordance with its type certificate. As it relates to (2) above, the Exemption requires Liberty to have and operate in accordance with an FAA approved maintenance inspection program under portions of FAR 91.409. FAA witness Bourgoine testified Liberty always adhered strictly to its maintenance inspection program. Tr. 4-22-14, p. 145. FAA presented no evidence Liberty did not operate in accordance with its maintenance inspection program. As it relates to (3) above, we have previously shown Liberty at all times operated in accordance with the applicable military technical manuals and, in any event, FAA failed to show Liberty did not operateinaccordancewiththosemanuals. 

### J. FAA DID NOT PROVE LIBERTY IS RESPONSIBLE FOR ANY FAR VIOLATIONS THE COURT MAY FIND (1) The Individuals Who Performed The Maintenance Were Independent Contractors, NotAgents OfLiberty For all ofthe reasons set forth above, FAA failed to meet its burden ofproofthat Liberty violated any ofthe charged FARs. However, should the Court find there were regulatory violations, the case law is clear that Liberty is not legally responsible for those violations. Mr. Schneider, the A & P mechanic who performed the maintenance at issue, and whose license was suspended bythe FAA for these violations, was never
an employee ofLiberty. Tr. 4-24-14, p. 128. At the times ofthe alleged violations, Mr. Schneiderwas a full time employee ofDelta Airlines. !d., pp. 125-27. He was never an officer or director ofLiberty. RX 1A, p.45. None ofthe otherA& Ps who workedonthe February and june projects was an employee ofLiberty. Captain john Hess was at all times a full time pilotemployee ofDelta Airlines. !d., p. 101, and hadvolunteeredwith

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 To (305) 670-1222 Fo (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET39 Liberty since 2005. !d., pp. 103-04. Chuck Giese was also a volunteer for Liberty. ld., p. 109. Cullen Underwood was at all times an employee and owner of Underwood Mold Co., and a volunteer for Liberty. Tr. 4-24-14, p. 204. FAA produced no evidence thatany ofthese personswere employees ofLiberty. Liberty is not responsible for any possible violations that may have been committedbyMr. Schneider or any ofthe other A& Ps (none otherthan Mr. Schneider have ever been charged) because neither Mr. Schneider, nor any ofthe other A & Ps,
nor Mr. Underwood, nor Mr. Wilkins, were agents ofLiberty such that Liberty would havebeen responsible for those alleged violations. Rather, as the caselawholds, these volunteers were independent contractors, in the facts and circumstances ofthis case, because Liberty did not have the right to, and did not, control the manner in which they performedtheir maintenance. "It is a fundamental principle ofhornbook agency lawthatan agencyrelationship arises onlywhere the principal has the rightto control the conduct ofthe agent with respect to matters entrusted to him." In the Matter of: Aero Continente, S. A., FAA Order No. 2003-8 (September 12, 2003) (emphasis added). Aero Continente was a Peruvian air carrier based in Lima, Peru. It utilized a Florida corporation called International Pacific Trading (IPT) to ship aircraft parts on its behalf. Pursuant to that arrangement, IPT shipped portable breathing equipment (PBE) via Federal Express within the United States. When an air carrier, such as Federal Express, transports a package containing a PBE as cargo, it is hazardous material. !d. Employees ofIPT shipped a PBE on a Federal Express aircraft pursuant to authorityfrom Aero Continente to do so. FAA broughta civil penalty action against Aero Continente alleging it was legallyresponsible for IPT's violation ofthe hazardous

STUARTA. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 To (305) 670·1222 Fo (305) 400·0685 STUARTGOLDSTEINPA@ATT.NET40 materials statute and regulations. The Administrator stated the question at issue as follows: [W]hether Aero Continente should be held responsible for the actions taken by IPT in light ofthe fact that Aero Continente had delegated authority to secure aircraft parts, including this particular device, to !PT. IPT certainlyhad knowledge ofthe underlying fact thatitwas shipping a PBE. IfIPT was acting as Aero Continente's agent, as the ALJ found, then its knowledge ofthe underlying facts can be imputed to Aero Continente. However, ifIPT was acting as an independentcontractor, thenAero Continente should not be held liable for IPT's failure to comply with the [Hazardous Materials Regulations] whenit shipped the PBE. I d., p. 14. In holding Aero Continente not responsible for IPT's Hazmat violations, the Administrator found IPT was notan agent ofAero Continente,butwas an independent contractor because Aero Continente did not have the right to control the conduct of !PT. Id. Citing, Restatement (Second) ofAgency, Section 14 and Longshoremen'sAss'n. AFL-CIO v. NLRB, 56 F.3d 205 (D. C. Cir. 1995), cert. denied sub. nom Canaveral Port Authorityv. InternationalLongshoremen'sAss'n, 516 U. S. 1158 (1996). I d., p. 16. "Ifa personhastherightto control only 'theresultofthework [byanotherperson], and not the means by which it is accomplished,
... an independent contractor relationship exists."' I d. (emphasis added), citing and relying upon In re Coupon Clearing Service, Inc., 113 F.3d 1091, 1099 (9th Cir. 1997). The Administrator came to the same conclusion in In the Matter of Husky Corporation, FAA Order No. 2010-8 (June 16, 2010). Husky was a manufacturer and seller ofproducts used in the petroleum industry, including fuel pump nozzles. I d., at 3. In June, 2006, three Husky employees tested Husky gasoline and diesel fuel nozzles at a Circle Kservice station in North Augusta, S. C. Theywere assisted bytwo Circle K employees and by a Mr. Hatfield, an employee of a company (Jack Pittman and Associates) which distributed products manufactured by Husky as well as by other STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 33156 To (305] 670·1222 Fo (305) 400-068S STUARTGOLDSTEINPA@ATT.NET

### 41 companies. When the testing was complete, the Husky employees removed the nozzles from the pumps, installed new nozzles, and with Hatfield's help, drained the residual fuel in the old nozzles. The Husky employees did not follow their usual procedure to make sure the old nozzles were completelydrained offuel. Instead, they placed the old nozzles in boxes and placed the boxes in Hatfield's car. Id., at 4. Later that day, Hatfield tendered two boxes containing 17 nozzles to Federal Express for shipment back to Husky's headquarters. The boxes were not labeled as containing hazardous materials. The three Husky employees testified they did not give Hatfield instructions abouthoworwhento shipthe nozzles to Husky's headquarters. In overturning the ALJ's decision, the Administrator found Husky "did not give Hatfield any direction regarding how to ship the nozzles" and there was no finding "showing that Husky had the right to control Hatfield's behavior and conduct, regardless of whether its employees asked Hatfield to ship the nozzles to Missouri." !d., at 9 (emphasis added). Thus, the Administrator held "ifa person has the right to control only 'the resultofthework [by another person], and notthe means bywhich it is accomplished,
... anindependentcontractorrelationship exits." I d., at 10, citing and relying upon Aero Continente, S. A., supra and In Re Coupon Clearing Service, supra. Accord, Foothill Capital Corp. v. Clare's FoodMkt (In re Coupon Clearing Serv.), 113 F.3d 1091, 1099 (9th Cir. 1997),supra. FAA produced no evidence that Liberty controlled the "means, behavior, or conduct" ofMr. Schneider, Mr. Geise, Captain Hess, Mr. Underwood, or Mr. Wilkins. At best for the FAA as it relates to the fuel tank replacement project, it showed Liberty determineditwantedto replacethebladderfuel tanksbecause sumpingwas becoming

STUARTA. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T' (305) 670-1222 p, (305) 400-0685 5TUARTGOLD5TEINPA@ATT.NET42

a problem (i. e., the end result) butthere is no evidence Liberty instructed anyone or dictated to anyone how to do that or what material(s) and tools to use to accomplish this end result. In fact, the evidence is to the contrary. Mr. Schneider testified he did not make the decision and did not know who did, but his communications were with Mr. Underwood. Tr. 4-24-14, p. 175. He further testified he did notbelieve Mr. Fowler made the decision. Id. Mr. Underwood, in turn, had communications with two DERs andultimatelydetermined, withtheir guidance, thatusingthe existing aluminumtanks
was legally permissible. Tr. 4-24-14, pp. 242-43; Tr. 4-25-14, p. 37. There is no evidence in this record that either Mr. Fowler or anyone else at Liberty instructed anyonehowto replacethebladders orwhatmaterialsto use in the project. Mr. Fowler confirmed this when he testified by deposition that he was briefed by Mr. Schneider and his group that initially the decision was to fabricate new aluminum tanks. CX 27, p.12. 24 Mr. Fowler was later briefed that the decision to use the existing aluminum tanks was made bypersons "outside ofme and the foundation when we contracted to havetheworkdone." !d., p. 14. To the same effect, FAA witness Mr. Bourgoine never testified that he was instructed how to perform his maintenance tasks. When asked about his responsibilities as Director of Maintenance, Mr. Bourgoine testified it was merely to "monitor the time that was being put on the airplane and determine when the next inspection would be due. To identify ifwe needed more mechanics at that stop to do the inspection and coordinate thatwith the tour coordinator, Scott Maher, and thengo and actually perform the inspection on the airplane." Tr. 4-22-14, p. 56 (Emphasis

24 This groupincluded another lA- PaulWhite. /d. STUART A. GOLDSTEIN. P. A. 7300 NORTH KENDALL DRIVE. SUITE 380. MIAMI. FL 33156 T' (305) 670-1222 p, (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET43 added). Thus, the record is devoid of evidence that anyone at Liberty ever instructed Mr. Bourgoine how to perform maintenance. Mr. Bourgoine elaborated when asked how a decision would be reached about whether or not to perform maintenance. He testified: "I would get from him (Mr. Maher) the time on the airplane so I knew ifthe twenty-five hour inspection was coming due. Then with that 

### l would say okay, we're going to do it in this city, it would time out at that point, we would discuss that and then I would tell him what people I would need for that inspection and he would provide or he would arrange for them to get there." Id., pp. 59-60 (emphasis added). Portions ofthe inspection program referredto byMr. Bougoine are inthe record as RX 19. As canbe seen from thetable ofcontents andindex, tasks are referenced, butthere is no evidence ofinstructions how maintenance personnel are to perform those tasks. Those decisions are left to the judgment, skill, and experience of maintenance personnel. Liberty merely listed, through the inspection program, the end result desired, i. e ., that the inspections be performed. The methods, techniques, practices, tools, and equipmentareleftto thejudgmentand discretion oftheA& Ps and !As upon whom Libertyrelied for their expertise. Therefore,the record is clearthatthe decision how to accomplish the end result

- ameliorate the deteriorating bladder tanks

- was made by Mr. Schneider, Mr. Underwood, Mr. Wilkins, and the DERs that were consulted. Those professionals were, therefore, independent contractors and Liberty is notresponsible for anyviolations theymayhave committed. The sameis truefor thejune, 2011,fuel tankleakrepair. Therecordis absolutely devoid ofevidence that anyone at Liberty instructed any ofthe A & Ps on site how to repair the leak. All ofthe testimonywas the decision howto repairthe leak was made

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380, MIAMI, FL 331S6 To (30S) 670-1222 Fo (30S) 400-0685 STUARTGOLDSTEINPA@ATT.NET44 by Mr. Schneider, Mr. Underwood, Mr. Giese, and Captain Hess. Although Mr. Fowler
was briefed on theirdecision, itwas nothis orLiberty's decision. Tr. 4-24-14,p; CX 27, p. 34 ("they made the decision to make the repair on site with the tank"). ("they broughtthe equipmentup to look atthetankandto- andtheytoldmewhattheywere planningto do withwheretheleakwas, that one oftheweldsinthetank, to go through to make that repair so theytold me what theywere planning. Rod did. And again
... they just briefed me on it.") Id., p. 35. As detailed above, Mr. Schneider, Mr. Underwood, and Captain Hess described how the leak was repaired and the process they went through in making their decision (including Mr. Giese). Thus, the record is clear that Liberty wanted the leak repaired

- the end result

- but did not dictate how the repair was to be accomplished. Therefore, those thataccomplished the leakrepair
were independent contractors and Liberty is not responsible for any violations they mayhave committed. (2) As APart 91 Operator, Liberty Is Not Responsible For Violations Committed ByIts Maintenance Personnel At all times, Liberty operated the Liberty Belle under FAR Part 91. See, Order Denying The FAA's Motion For Partial Summary judgment, etc., para. 13. There is a great difference between Part 91 operators and Parts 121 and 135 operators in terms of maintenance responsibilities. Parts 121 and 135 operators (air carriers) are responsible for the FAR violations of their independent contractors because the Federal Aviation Act requires air carriers operating underthose Parts to perform their services with the highest possible degree of safety. In The Matter OfUSAIR, Inc., FAA Order 92-70 (December 21, 1992), 1992 FAA Lexis 352, p. 2. To the same effect, see In

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T' (305] 670-1222 p, (305] 400-0685 STUARTGOLDSTEINPA@ATT.NET45 The Matter Of AlaskaAirlines, Inc., FAA Order No. 2004-8 (October 4, 2004), 2004 FAA Lexis 905, pp. 4-5.25 Three dockets were combined for disposition, each one involving maintenance by an independent maintenance contractor of Airlines. Holding Alaska Airlines responsible for the errors of its independent maintenance contractor, the Administrator referenced 14 CFR 121.363 ("Responsibility for airworthiness") which provides: (a) Each certificateholderis primarilyresponsible for- (1) The airworthiness ofits aircraft, including airframes, aircraft engines, propellers, appliances, and partsthereof; and (2) The performance ofthe maintenance, preventive maintenance, and alteration ofits aircraft, including airframes, aircraft engines, propellers, appliances, emergency equipment, and parts thereof, in accordance with its manual and the regulations ofthis chapter. (b) A certificate holder may make arrangements with another person for the performance of any maintenance, preventive maintenance, or alterations. However, this does not relieve the certificate holder ofthe responsibility specified in paragraph (a) ofthis section.
FAA treats Part 91 operators very differently, and much less stringently, in terms of airworthiness responsibility related to aircraft maintenance. FAA Advisory Circular 120-16E, Chapter 2 is entitled Airworthiness Responsibility. RX 22. This Exhibit details the maintenance responsibility differences between air carriers operatingunder Parts 121 and 135 vis-a-vis Part91 operators. Paragraphs 200aand b state:
a. Part 119 Certificate Holder Responsibilities. Consistent with sections 121.363 and 135.413, you, as a part 119 certificate holder, are primarilyresponsible for (1) the airworthiness of your aircraft, and (2) the performance of all ofthe maintenance or alterations on your aircraft. Your air carrier certificate makes you a maintenance entity. Under your air carrier certificate, you accomplish your own maintenance, preventive maintenance, or alterations, or you can use other persons who are not direct employees to accomplish thatwork. Consistentregulations in sections 121.1(b)
25 49 U.S.C. 44702(b)(l)(a) STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380.MIAMI, FL 33156 T: (305) 670-1222 F: (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET46 and 135.1(a)(2), the part 121 or 135 regulations govern each person that you use or that you employ for any maintenance, preventive maintenance, or alteration ofyour aircraft. Each ofthose persons thatyou use mustbe underyour direction and control and mustfollowyourmaintenance program. b. Maintenance Responsibilities. For any work done on your aircraft, you retain direct and primary responsibility for performing and approving all maintenance and alterations, whether you accomplish that work or whether someone else does it for you (for example, a maintenance provider such as a repair station). However, you always retain primary responsibility for the performance and approval of the maintenance done bythatmaintenance provider. Emphasis added. In paragraph 201, the FAA provides a table of the "differences between air carriermaintenanceprograms and part 91 general aviation inspection programs." The NOTE: on page 5 ofRX 22 states: "The wording in part91 is deliberatelydifferentfrom thewordingin 14 CFRparts 121and 135 and is consistentwiththe difference between air transportation and other air commerce described in 49 U.S.C. 44701." (Emphasis added). As theyrelateto the issues inthis case, those differences are stark. Parts 121 and 135 air carriers are responsible for "determining the method of performing maintenance
...", whereas a Part 91 operator is only responsible for "scheduling of aircraft for the inspections, and for ensuring that discrepancies that occur between scheduled inspections are repaired."26 (Emphasis added). The table of differences goes on to state that Parts 121 and 135 air carriers "Must determine what maintenance is required, how to do it [and] when to do it
...", whereas Part 91 operators are only required to "make the airplane available to authorized and certificated person(s) who accomplish inspections and other maintenance." (Emphasis added).

26 This is consistentwith Mr. Bourgoine's and Mr. Schneider's testimony as to their duties as "Director ofMaintenance" referenced above. STUART A. GOLDSTEIN,P.A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 r, (305) 670-1222 p, (305) 400-0685 STUARTGOLD5TEINPA@ATT.NET47 Further, a Part 121 and Part 135 air carrier is "the primary authority with regard to its maintenance program" and "holds the primary responsibility for the performance ofmaintenance in accordance with its maintenance program and manual,
as well as the airworthiness of its aircraft, including airframes, aircraft engines, propellers, appliances, and parts thereof." (Emphasis added). This contrasts sharply withwhatthe FAA says is theresponsibility ofa Part91 operator: The authorized and certificated person(s) has the responsibility to perform the maintenance properly in accordance with the manufacturer's manual and to approve the aircraft for return to service. The owner/operator does not have this responsibility. However, the owner /operator is responsible for ensuring maintenance personnel make appropriate entries in the aircraftmaintenance records indicating the aircrafthas received approval for returnto service. (Emphasis added). K. THE PENALTY SOUGHT BY THE ADMINISTRATOR IS INAPPROPRIATE It is, of course, Liberty's view that no penalty is appropriate because the Administrator failed to meet his burden ofproof on any ofthe alleged violations. If, however, the Court finds the Administrator has proven violations and that Liberty is legally responsible for those violations, the penalty sought in this matter is far too large in the totality ofthe circumstances. Because it is impossible to know which, if any, violations the Court may find, this Section of Liberty's Closing Argument is necessarilypresentedin general terms. The case law indicates the computation of a penalty should not be done by simply multiplying a sanction for a violation by the number of flights, but rather by looking to the totality ofthe circumstances. In The Matter OfWarbelow"sAir Ventures, Inc., FAA Order No. 2000-3, p. 10 (February 3, 2000), 2000 FAA Lexis 300, reconsideration denied, FAA Order 2000-14 (June 8, 2000), 2000 FAA Lexis 646.

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T: (305) 670-1222 F: (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET48 Factors to be considered are the extent and gravity of a violation, the degree of culpability, history ofprior offenses, and such other matters as justice mayrequire. In The Matter OfPhyllisjones Luxemburg, FAA Order No. 1994-18, p. 5 (June 22, 1994). The factors set forth in 49 U.S.C. 1471(a) for hazardous materials violations are applicable in non-hazardous materials cases. I d., p. 6 and In The Matter Of Northwest Airlines, FAA Order No. 1990-37 at 12 n. 9 (November 7, 1990), citing 55 Fed. Reg. 22, 548, at27,569 (1990).27 Applying these factors in this case, it is clear only a minimal penalty is appropriate ifanyviolations are found. The facts showbeyond anyreasonable dispute that Liberty is an innocent violator, if violations are found. FAA has produced no evidence that Liberty did anything but reasonably rely on volunteer maintenance professionals and other experts, such as Cobb Industrial Fabricators. In an oft-cited case, NTSB set out the parameters for reasonable reliance. In Administrator v. Yialamas, NTSB Order No. EA-5111 at 3 (2004 WL 2125410), a Part 91 operator was charged with two violations of operating an unairworthy aircraft because its elevator trim cable was damaged. The aircraft was inspected bytwo A & P mechanics, neither of whom advised respondent the aircraft was not airworthy, and who provided respondent with return-to-service log entries although they both advised respondent the trim cable should be replaced before the aircraft flew again. In reversing the suspension upheld by the ALJ, the Board assumed for purposes of its decision the aircraftwas unairworthy: [A]ssuming for our purposes that the airplane was unairworthy as a result of the frayed trim cable, we conclude that the Administrator failed to establish that 2

7 Thereis no record evidence ofpriorviolations byLiberty. STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 To (305] 670-1222 Fo (305] 400-0685 STUARTGOLDSTEINPA@ATT.NET49 respondent should be charged with this knowledge. To prove a violation of section 91.7(a), the Administrator must show that the airman operated an aircraft that he knew orreasonably should have knownwas notairworthy. Administratorv. Bernstein, NTSB Order No. EA-4120 at 5 (1994), and cases cited therein. Neither Mr. Adams nor Mr. Briglia [the two mechanics] ever told respondent that the airplane was unairworthy. Further, we agree with respondent thatthe signed maintenance entries he was given by Mr. Adams and Mr. Briglia could reasonably be relied upon as an indicationthatthe airplane was safeto fly. NTSB confirmed the rationale ofthis holding inAdministrator v. Wilson, NTSB Order No. EA-5646 at 5-6 (2013 WL 316198) describing itas "a longline ofprecedent." In the instant case, Liberty had never been advised the aircraft was unairworthy by any ofthe A & Ps and Als that inspected it or performed work on it, and log entries
were made for both the tank project and the leak repair. Liberty had no perceivable
reason to look beyond those return-to-service log entries made by independent, professional, maintenance personnel. Liberty, therefore, fits squarely in the parameters of the Yialamas, Bernstein, and Wilson decisions and reasonably relied on those return-to-service log entries. See also, judge Kolka's Initial Decision in Empire Airlines, 1995 FAA Lexis 399 at 5 (March 3, 1995), in which judge Kolka absolved Empire Airlines, a Part 121 air carrier, from responsibility for improperly greased wheel bearings that were signed off (returned to service) by maintenance personnel based on reasonable reliance onthe serviceprovider.

STUART A. GOLDSTEIN, P. A. 7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 T' (305) 670·1222 F' (305) 400·0685 STUARTGOLDSTEINPA@ATT.NETRespectfully submitted, STUART A. GOLDLSTEIN, P. A. 7300 North Kendall Drive, Suite 380 Miami, FL 33156 Tel: (305) 670-1222 Fax: (305) 400-0685 Email: stuartgoldsteinpa@att.net ll ' 

# J ;'i -01.- r 

### j i) ,. 1

## --i/-- By: '·

## ')J0'fiJ

# If**'<)fiVJU·~·** oV StuartA. Goldstein Attorneyfor LibertyFoundation
CERTIFICATE OF SERVICE 50

I HEREBY CERTIFY that on this 7th day ofAugust, 2014, I served the above and foregoing Respondent's Post-Hearing ClosingArgument, as follows: Original and one copyto: Federal AviationAdministration HearingDocket Clerk, AGC-430 WilburWrightBuilding- Suite 2W1000 800 IndependenceAvenue, S. W. Washington, D. C. 20591 Via: CertifiedMail ReturnReceipt Requested One copyto: Honorablej. E. Sullivan Office ofHearings, M-20 U.S. DepartmentofTransportation 1200 NewjerseyAvenue, SE (E11-310) Washington, D. C. 20590 Via Federal Express

StuartA. Goldstein

STUART A. GOLDSTEIN, P. A. One copyto: Christopher R. Stevenson, Esq. FederalAviation Administration 1701 ColumbiaAvenue College Park, GA 30337 Via Certified Mail, Return Receipt Requested

7300 NORTH KENDALL DRIVE, SUITE 380,MIAMI, FL 33156 To (305) 670-1222 Fo (305) 400-0685 STUARTGOLDSTEINPA@ATT.NET