UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.



### ************************************* 

# RECEIVED

FEB 07

# 2017
HEARING DOCKET

IN THE MATTER OF PACIFIC INTERNATIONAL SKYDIVING CENTER, 

## * * * * * * Judge: Douglas M. Rawald
Respondent



### ************************************* Docket#: FAA-2014-1116 (Civil Penalty Action)

RESPONDENT'S CLOSING ARGUMENT Phaedrus, a first century Roman fabulist, wrote that "things are not always whatthey seem; the first appearance deceives many." The facts and necessary conclusions in the case before this Court confirm the accuracy of Phaedrus' observation. The motivations of the ground video videographer to destroy the Respondent's business and to even kill its personnel, coupled with uncontradicted, articulated, expert opinions and reasons why neither the ground video nor the air video are accurate portrayals ofreality prove that the actions purportedly shown in the videos are not what they seem, and that the first appearance must be disregarded and a decision rendered in favor ofthe Respondent, Pacific International Skydiving.

INTRODUCTION AND BACKGROUND On27 January 2015, in response to Respondent's written appeal request, the Administrator filed its Complaint in this cause, alleging four (4) separate dates on whichthe Respondent allegedly conductedparachute operations into orthrough clouds (8 December20 13, 5January 2014, 22 March and 25 March 2014) and alleged violations of 14 C.P.R. §105.17(a) and 14 C.P.R. §91.13 (a). (Complaint.), seeking a total civil penalty of$55,000.00. Inspector Kyle Bartlertestified that he reviewed "YouTube" videos through links provided by Hinshaw and decided that there was sufficient evidence enough to pursue enforcement." I Tr. 38. Similar decisions were made for the other videos Hinshaw submitted. Hinshaw provided affidavits stating "underpenalty ofperjury" thathe had "not altered the video in any way." A-6., A8, A-16 However, because there were multiple files strung together in the videos provided to the Administrator, contrary to his declarations, they had, in fact, been edited (I Tr. 161), and the important metadata (time and time code, date, lens focal length, f-stop, etc.) which would have helped to analyze the accuracy ofthe video and audio was lost. 2 Tr. 297-302. During all ofthe videos, Hinshaw maintained a running commentary, including comments about how "dirty" (2 Tr. 253) thejumpswere, and how thejumpers were going through clouds and violating FederalAviationRegulations ("FARs) (multiple instances in transcript). TheCourt stated that it was not going to consider him an expert and that it would not consider his conclusions made in the audio about FARs being violated. 1Tr. 172.

I. The individuals did not parachute through clouds. A. Definition ofa cloud. The only definition ofa cloud provided in this case was provided bythe Respondent. The FAA interpretation ofwhat constitutes a cloud was stated in a deposition taken in a case styled, 

### In the Matter of FAA v. Kamm, NTSB Docket No. SE-19099, a case involving alleged aircraft penetration ofclouds, Danny Billman, an FAA inspector with 23,000 hours ofpilottime (R-14 at4-5) and experience flying in Hawaii 

### (I d. at 6) stated, as a representative ofthe Administrator, that ifyou can see through it, it's not a cloud; that a cloud is opaque; that "if itwas misty andyou can seethrough it, itwouldn'tbe a violation. R-14: DannyBillmanDeposition Transcript, 18-19. We can"t determine from any camera angle or view what the parachutists saw with their eyes. Ifthe parachutist could see through the reduced visibility (not what the camera recorded, butwhatthe parachutist saw)thentheparachutistwasnotjumpinginto orthrough acloud. Because ofthe accuracy limitations ofwhat a camera records, as discussed below, compared with the power and accuracy ofthe human eye for a parachutist who would be much closer to any existing reduced visibility situation than any observer on the ground, it is impossible for anyone except the parachutist conducting thejump to determine ifthe precipitation or condensation is not opaque.

B. With respect to the ground to air video recorded by Frank T.K. Hinshaw and the credibility ofhis testimony, neither should be assigned any weight. The Administrator presented videos taken by Frank T.K. Hinshaw (hereinafter referred to

as "Hinshaw,"), the son ofthe owner ofa competitor, Skydive Hawaii. (1 Tr. 187, 239.) Hinshaw posted Facebook posts threatening the lives ofRespondent's personnel and their pets. R-16, 2 Tr. 257. When asked about the Facebook posts, he invoked the 5'h Amendment. 1 Tr. 280. During the hearing, the father, Frank Hinshaw, president ofSkydive Hawaii (! Tr. 239), who had been present in the courtroom through most ofthe hearing (2 Tr. 269), after testimony by

an employee and contractors ofRespondent regarding threats, including verbal and other threats, such as throat slashing gestures made by Hinshawtowards them (2 Tr. 243, 245-246, 258, 261 ), left the courtroom and swore at and intimidated (2 Tr. 272) witnesses who hadjust testified and who
were, atthe time, subjectto recall for further testimony. 2 Tr. 268. Darryl Greenwas recalledto the stand and stated that he was sitting outside and that Frank Hinshaw "just came out ofthe building and said something abouttalking to each other and then also said, 'You are a fucking bitch."' 2 Tr. 268. Green was concerned for his safety. 

### Id. When brought back to the wituess stand to describe what had occurred in the hall, Roxanne Stanley was shaking and almost in tears. She stated, in response to a question whether or not she

was concerned for her safety, thather "heart is racing because this is the kind ofbehaviorthat I feel is extremely intimidating and scary

...." 2 Tr. 271-272. In response to the incident, the Court stated: "I will note for the record that Mr. Frank Hinshaw has been an avid spectator here throughout the hearing. Before the hearing started, Mr. Feldman advisedme thathe thoughtthat it may influence the witness' testimony. However, I found thatthis is going to be a public forum andthat Mr. Frank Hinshaw would, ofcourse, accord himself in the appropriate fashion and so I did not ask him to depart the courtroom. So at this point, ifhe hasmade any sortofstatementsthat may, ofcourse, unfortunately atthe credibility ofhis son, I will have to think about that further. 

### !d. At 269. Hinshaw also invoked his 5'h Amendment rights when asked about the throat slashing gestures. 1 Tr. 281-282. It is clear that his motivation for shooting the video was to destroy the Respondent's business, and that his ultimate goals were maybe worse. His credibility against Respondent should be deemed to be non-existent. Itis most probable, consideringthe nature ofthe videos, in listening to Hinshaw's self-serving running commentary, and in consideration oftheinaccuracy ofwhat he claims they show, that the entire video procedure was designed byHinshaw to create an appearance that parachutists were descending through clouds and the worst possible record to submit to the FSDO so that inspectors there would investigate the Respondent and create such financial hardship for them that they would be driven out ofbusiness. Hinshaw did his best to show the worst possible clouds in the sky, even ifthey were nowhere near the skydivers. His comments identifYing Mr. Banal in the video as "the leadership over there" and his description of him in court as short and losinghis hair also show his contempt for the Respondent. I Tr. 178. The outrageous events that took place outside the courtroom also show his malice and contempt for Respondent's contractors and employees. Evenwithhislackof credibility, brief moments ofcandidhonestywerepresentin Hinshaw's testimony. He testified that he had no professional experience, however he had edited video as a hobby, and that his experience was "very amateur." (I Tr. 253.) He stated that he had no professional camera training. (I Tr. 275.) He was not an expert. Most importantly, he stated that he never actually saw anyjumpers going into a cloud. I Tr. 252. Hinshaw, even as a lay witness, statedthat it wouldbepossiblethathe could lookup andthink that someone's goingthrough a cloud when, in fact, they could be goingthrough an opening ifthere were clear areas around the overcast

area. 1Tr. 245-6. He stated that ifviewed from an angle at a distance ajumper could appear to be going through a cloud when in fact they did not. 1 Tr. 246-247. Respondent's expert, Torn Sanders, a world renowned skydiver, cameraman and videographer R-24; 2 Tr. 281-282) who both flew aircraft (2 Tr. 284) at and around, and skydived at and around, Dillingham Airfield (2 Tr. 283-284) and who, at one time, lived near the airport (2 Tr. 284-285), who has lived on the North Shore for 15 years, works at Dillingham Airfield, was familiar with the weather conditions there (2 Tr. 284) and who had observed cloud conditions as they changed over Dillingham Airfield (2 Tr. 285) was the only expert in both skydiving and photography to testifY in this case. He had 38 years experience in skydiving photography and understood the limitations ofvideo shot from the ground and in the air. He was the only expert qualified to testifY about the false conclusions a viewer not skilled in understanding the factors affecting its reliability could draw from watching the video in the case; the only expert who could testifY aboutthe lackofreliability ofthe photographic evidence, includingthe Hinshaw video, shot from the ground, and the GoPro video, shot from the air. Hetestifiedthatthere weremultiple cloud layers in all ofthe groundto air videos. 2 Tr. 311. He testified that because ofcamera limitations that affected the quality ofthe video, there was actually blue skywhere it appearedto a lay observerto be grey. 3Tr. 34-35. He statedthat because ofthe angle and layered clouds, none ofthe Hinshaw video showed what was above any ofthe parachutists; that they could have come through a hole, but the video wouldn't show it; that it did not show what the parachutists fell through but only what was behind them. 2 Tr. 338-339, 3 Tr. 35, 3 Tr. 38, 3 Tr. 42-43, 3 Tr. 59. With respect the ground to air video he stated:

I'm goingtohaveto standbehindmy statement, which will apply for all ground shots looking upward, you can't tell where the clouds are. They are stacked together from

an angle. Ifhe is zooming in, it's not a sufficient angle tojudge when somebody is falling downward ifthey are going through it or not. You can'ttell ifyou are looking out. They are openingtheirparachute a mile high in the sky and they start at almost 3 miles high in the sky and all we are seeing is a black dot out here. I don't know what is straight above him. I don't know ifthere is a cloud in front and they are falling behindthe wall in the back. I have no idea from the ground what is going on. 2 Tr. 319-320.Mr. Sanders stated that the parachute canopies were steerable and that they could fly away from clouds, "go wherevertheywant," (3 Tr. 24) and that he had "no belief

... (from the angle that the videos were shot) that any of

...(the video) proves going through clouds." 

### Id As to whetherthere were holes in the clouds through whichjumpers could descent without violatingFAR 1 05.17(a), Kyle Bartler stated that he saw "scatteredholes in the clouds inthe videos from December 2013 and January 2014. Mr. Santa Elena's testimony was that he saw "patches of open sky" in the March 2014 videos. 1 Tr. 108. Ifopen sky is visible, the sky is not overcast, 

### it is broken sky conditions ifthe cloud cover is five-eighths to seven-eighths sky cover. 1 Tr. 108. However, evenaneight-eighths overcast skycover, however, wouldnotmeanthatthere are noholes in the clouds. Hinshaw stated in each of his declarations (A-6, A-8 and A-16) that the skies were broken/overcast or broken & overcast skies. This is a contradiction. Either the sky is broken or it is overcast. It cannot be both at the same time and presents another credibility problem with his testimony. None ofthe ground to air or air to air video introduced into evidence shows overcast skies for any ofthejumps, meaning thatthere were significantholes through which jumpers could descend, blocked from view from the ground by an intervening cloud layer,. With respectto the appearance ofa cloud layerfrom the ground, Mr. McCowan testifiedthat ifyou look at clouds at an angle, they appear to be closer together than ifyou are looking straight up at the clouds. He stated that he had seen this phenomenon while flying (2 Tr. 94) and also that he had seen it from the ground. 2 Tr. 95. Regarding Hinshaw's opinion thatjumpers descended through clouds, the Court confirmed that Mr. Hinshaw's lay opinions regardingjumpers passing through a cloud were based upon a "central assumption" that he was making that ifhe could not see the starting point, the plane, and then he could see the parachutists, they must have passed through a cloud. I Tr. 292. This was similarto Mr. McCowan't opinions based upon the false premise that ifyou don't see ajumperand then you do, he must have fallen through a cloud. Both were wrong and were disproved by the evidence. A dramatic example ofdisproving Mr. McCowan's opinion that someonejumped into or through a cloud ifthey suddenly appear below a cloud is shown 

### in R-25, a video showing the Administrator's expert himselfmaking a parachutejump. The video appears to show him going through a cloud and also a large C-47 aircraft going through a cloud. Based on the premise expressed by both Mr. McCowan and Hinshawthat ifyou didn't see a parachutist andthen you saw him belowa cloud, he musthave come throughthe cloud, one would conclude thatboththe aircraft and Mr. McCowan went through a cloud, since in R-25, the aircraft disappeared and then reappeared, and Paul McCowan appeared from a cloud. However, according to Mr. McCowan, neither he nor any other team memberjumped through a cloud (2 Tr. II0), nor did the aircraft go into a cloud. 

### Id. As the Court noted, "while the viewer from this footage may think that thejumpers or the plane itselfwent through the cloud, because ofthe (ground to subject) angle ofthe camera, (Mr. McCowan), in (his) personalknowledge from thatexperience, statedno one wentthrough a cloud." 2 Tr. 117. When asked why the aircraft couldn'tbe seen, Mr. McCowan replied, "There is a cloud betweenyou andthe aircraft. 

### !d. He further stated that whether or not he could determine whether

ornot the aircraft was in a cloudwould depend "onthe angle youwere looking at." 2 Tr. 112. That the angle between the observer/camera and the subject is critical to a determination of cloud penetration is agreed upon byboth experts. Becausethe angle varies with the cloud layers altitudes and camera/observer-to-subject distance and angle and these values are completely unknown, thereliability and probative value ofany and all ofthe ground to air video is zero. The Court questioned Mr. Sanders aboutthe reliability ofMr. McCowan's opinion that "he

was basing, in large part his notion that someone went through a cloud based (on an observation) thatthey would appear where they weren'tthere before." 3 Tr. 115. The Court stated, "It seems to

me what you're saying is, that is not an appropriate way of judging ifsomeone has gone through a cloud." Mr. Sanders agreed with the Court and stated, "It's not an appropriate way." 

### !d. The Courtalso questionedMr. Sandersabouttheappropriateness ofHinshaw'smethodology

on which based "his conclusion that a person had gone through a cloud because he couldn't see the plane; buthe could see the parachutist. Mr. Sanders stated, "No, not at all. We actually saw that in the (Administrator's) expert witness testimony." 3 Tr. 116. Mr. Sanders testified that none ofthe ground to air video was reliable to prove that any jumperjumped into or through a cloud. There were many factors he cited which made the ground video unreliable, includingmoisture (2 Tr. 67), out offrameto into frame subject/cameramovement (2 Tr. 317-318), focus (2 Tr. 349-350), edge sharpness (2 Tr. 301-302), a very small, one sensor
camera chip to gather information (2 Tr. 303-304), narrow bandwidth ofcolor pickup (2 Tr. 307), contrastpickup/washedout images (2 Tr. 307), salt spray (2 Tr. 323),the sizeof the subject skydiver

or skydiver and parachute (2 Tr. 313), moisture/volcanic ash in the air (2 Tr. 323), light across the lens (3 Tr. 5), the poor quality ofthe monitors in the courtroom to view the video (2 Tr. 308-310) andagain, very significantly, cameraangle (2 Tr. 310, 319-320) andmultiple cloud layers 2Tr. 311, 2 

### Tr. 319-320. Mr. Sanders stated that none ofthe videos accurately showed the conditions that existed in the sky. 2 Tr. 310. He testified that "none of them, even just on the angle alone, regardless ofall the other technical issues, were useful." 

### !d. None ofhistestimony asto their lack ofreliability andthe reasons therefor was rebutted by any witnesstestimony, and indeedmuch ofitwas supported byInspectorMcCowan. Close, frameby-frame, examinationofthe video fully supported Mr. Sanders' testimony and the reasons he gave in supportthereofthatthe video was useless to determine whether or not anyjumpswere made into

or through a cloud and also why Hinshaw's opinions as to cloud penetration byjumpers from Respondent's aircraft, even ifHinshaw actually believed his opinion, were useless as well. 2 Tr. 337-339. Therefore, neither the Hinshaw videos norhis testimony are reliable orprobative, and each should be given no weight.



### C. The proper weight the Court should give the credibility of tbe GoPro footage is no weight at all. For many reasons, the GoPro videos are no more probative than the ground to air videos. Mr. Sandersmay have testifiedthat "filming skydiving from the ground is like filming scubadiving from the boat. You really need to get in the sky. 2 Tr. 286. But the GoPro video taken in the sky is equally unreliable. Mr. Sanderstestified aboutits lack ofreliability. One ofthemost significantreasonshe cited for the video giving a false impression of jumpers going through clouds was again camera angle. In videoswhere it appearedthatajumperwas entering acloud, he testifiedthatmoisture condensing

onthe lens could give the false appearance ofa parachutist going into or through a cloud 2 Tr. 310, 3 Tr. 102-106 (referring to A-32), 3 Tr. 108-112 (referring to A-33). Regarding A-32, it was his opinion, as restated by the Court that "neither the tandem nor the videographer are going through

a cloud." 3 Tr. 63. Regarding A-35, he testified that his expert opinion was that the parachutists did not go through a cloud. 3 Tr. 66. His reasons werethatthe cameranever looked straight down; that is was always looking "out in front" 

### (!d.); thatthe tandems clearly opened up in the drier air above(the cloud level) (!d.) andthat camerapeople opened at cloud level where there was lots ofmoisture

on the lens, giving the illusion ofentering a cloud. Id. In a dramatic example ofair to air GoPro video inaccuracy, a video of Skydive Hawaii jumpers jumpingfrom a SkydiveHawaii aircraftwith a GoPro mountedonthebottom ofthe aircraft which appeared to capturejumpersjumping into a cloud (R-12), Hinshaw stated that neither ofthe tandem jumper pairs or cameramen who appeared to be going through a cloud did, in fact, go throughthe cloud (I Tr. 275), "eventhoughthe video cameraonthe bottom ofthe aircraft appeared to show that the tandem pair may have went (sic) through the cloud." 1 Tr. 275. He stated that it looked like they did, butthey didn't. 1Tr. 270. He stated that it was "actually so determined by the HNL FSDO. 1 Tr. 269. "It was actually the Flight Standards District Office that made that determination," (1 Tr. 293) he said. "Ihad personal knowledge because I had to talkto the (helmet camera) videographers in orderto gettheirvideosto theFlight Standards DistrictOffice." 1Tr. 294. Many ofthe other factors stated by Mr. Sanders as affecting ground to air video would also affect air to air video reliability. These factors include camera angle, as cited by Mr. Hinshaw in explainingwhytheparachutists shown inR-12 did not go into orthrough a cloud. They also include edge sharpness (2 Tr. 301-302), the quality ofthe sensor chip and camera to gather information (2 Tr. 303-304), "light across the lens" (3 Tr. 5) andthe poor quality ofthe monitors in the courtroom to view the video instead ofa better monitor. 2 Tr. 308-310. Even Mr. McCowan testified that in determining the accuracy ofGoPro video, camera-subject "distance and angle matter" and that it is "hard to determine that." 2 Tr. 163. The lack ofreliability was also expressed in testimony ofPaul McCowan commenting on Exhibit A-38 (2 Tr. 163) and in testimony ofT om Sanders stating that he believed "they opened above and to the side (ofthe cloud)" 3 Tr. 67. Mr. McCowan testified the cameraman "did not go through a cloud, thattheir lens fogged up as they hit the moisture layer." 

### !d. He also stated thatthe GoPro housings contribute to the propensity for a GoPro to fog up. 3 Tr. 68. Itis significant and definitive in support ofMr. Sanders' opinions regarding lens fog that in response to a question by Administrator's counsel, the Administrator's expert agreed with Mr. Sanders' opinions. Administrator's counsel asked him, "And when you're diving and you're not going through the clouds, do you ever see this kind ofcondensation on the lens?" In response, Mr. McCowan stated, "

.. .looking at otherpeople's videos whenthey come throughthat level, you will

see condensation. That is where the cloud layer he's corning outthe bottom ofit right now. So that would be where you would see the condensation. 3 Tr. 142-143. Mr. McCowan further testified that at whatever level the moisture level is, is where you will see condensation in the absence ofa cloud ("at whatever the moisture level is." 3 Tr. 143.



### D. Spoliation of evidence and resulting inferences against the testimony of T.K. and the evidence he created. 1. Spoliation ofEvidence: An adverse inference against the Hinshaw's testimony and against the Administrator should be drawn with respect to the ground to air video. Hinshaw acknowledged that he erased from the camera cards on which it was recorded the original data files showing the subject parachutejumping activities. He was filming the activities in orderto capture videoto submit to the FAA, yethe erasedthe original files, even though he knew

or should have known that the destroyed evidence was relevant to the anticipated Respondent's claim or defense, such that a reasonable trier offact could find that it would support that claim or defense. In Byrnie v. Town of Cromwell, 243 F.3d 93, 107 (2nd Cir., 2000), the court stated:We have defined spoliation as "the destruction or significant alteration ofevidence,

or the failure to preserve property for another's use as evidence in pending or reasonably foreseeable litigation." West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999). The spoliation ofevidence germane "to proofofan issue at trial can support an inference that the evidence would have been unfavorable to the party responsible for its destruction." Kronisch v. UnitedStates, 150 F.3d 112, 126 (2d Cir. 1998). This sanction serves a threefold purpose of(1) deterring parties from destroying evidence; (2) placing the risk ofan erroneous evaluation ofthe content of the destroyed evidence on the party responsible for its destruction; and (3) restoring the party harmed by the loss ofevidence helpful to its case to where the party would have been in the absence ofspoliation. Id. 107.

Where one seeks an adverse inference regarding the content ofdestroyed evidence,

one must first show that "the party having control over the evidence

... had an obligation to preserve it at the time it was destroyed. Such an obligation usually arises when a party has notice thatthe evidence is relevant to litigation

... but also on occasion in other circumstances, as for example when a party should have known thatthe evidence may be relevantto future litigation. [internal citation omitted.] 

### !d.

Finally, a court must determine whether there is any likelihood that the destroyed evidence would have been of the nature alleged by the party affected by its destruction. The burden falls on the "prejudiced party" to produce some evidence suggestingthat a document or documents relevantto substantiating his claim would have been included among the destroyed files." Id. 108.

There is no question that Hinshaw destroyed the contents ofthe camera cards and thereby destroyed theirunedited condition andtbe metadata containedthereon. He testifiedthat he shotthe video on camera cards and then transferred it to a computer; that he had "limited resources and couldn't buy a whole bunch of cards." 1 Tr. 156. Tom Sanders, testified that the cards cost approximately $6.00 each. 2 Tr. 305. Therefore, the cost ofthe cards, assuming a new card were required for each video, would be only $24.00. A total cost of$24.00 makes Hinshaw's testimony difficult to believe, even absurd, and in consideration ofthe other factors suggesting his lack of credibility and alternative motivation for his shooting video suggests that it creates a presumption that the cards contained information he wanted to hide from the Administrator and ultimately from the Respondent. Mr. Sanders testified that the metadata on the cards would have been very useful in interpreting the accuracy ofthe video (2 Tr. 298, 300-301) and in determining ifthe files had been edited (2 Tr. 343) or ifthe shots had been "cropped" to make it appear more heavily clouded than it wouldbein awide shot. 2 Tr. 301. The investigating inspectors neverrequested the original cards. 1Tr. 156-1 57. They couldhave easilydone so and preservedtheoriginal evidence. Respondentwas prejudiced in its defense by not having access to the original videos. An inference must be drawn that the missing original video would have been favorable to the Respondent in showing that they did not conduct parachutejumps in violation of 105.17(a), particularly in view ofHinshaw'shistory ofhatefortheRespondent. The Administrator's inspectors

are equally responsible for the spoliation in that they knew that they were viewing the video on a computer, in a YouTube posting or on a CD/DVD, and they failed to seek to preserve tbe originalcrucial evidence while they were in the midst of investigating four dates ofjumps based on the recordings. Therefore, the Administrator must also bear the burden ofsuch a negative inference.

E. The expert testimony ofTom Sanders was more logical, deeper and persuasive than that ofPanl McCowan. With regard to the credibility ofthe experts, the Administrator's counsel questioned Mr. Sanders about where hejumped (Pacific Skydiving), whether he paid for hisjumps ("No."), and if he was friends with 

### Mr. Banal, the Respondent's manager ("Yes."). 3 Tr. 71. 

### Mr. Sanders also stated that he worked infrequently as an expert witness (3 Tr. 72), and that he was being paid $500 per hour for his services as an expert in the case. 3 Tr. 70. He testified that his daily rate as a professional skydiver, including dailyrate andjumpcharges was "three or $4,000 a day." 3Tr. 134. He agreed that this is consistent with a rate of$500 an hour. 3 Tr. 135. He also testified that he had tojump somewhere and that he had chosen tojump at Pacific Skydiving (3 Tr. 132-133) and that his friendship with Mr. Banal in no way affected his truthfulness in the testimony he gave in the hearing. 3 Tr. 133. He testified that his testimony was based on his expertise rather than his friendship. 

### ld. Byhis own admission, Mr. McCowan acknowledgedthathe "was currently employed as an aviation safety inspector with the FAA" andthat he had been so employed for 9 Y, years. 2 Tr. 5-6 and that he has been a "SubjectMatter Expert in Parachuting for the FAA'' for 7 years. A-52. It is noteworthy that he has only been, and could only could be, a subject matter expert for the FAA. He could only have been calledto supportthe Administrator's position. Thus, a strong argument exists thathe wasnot impartial, since he waspartoftheagency bringingthe action againsttheRespondent and only servedas an expert for the agency. He was aprofessional expert for the agency. In contrast, Respondent's expert, while he was friends with Respondent's personnel and utilized its facilities to skydive, had no affiliation with the Respondent. Affiliations notwithstanding,there is no evidence intherecordthateitherexpert'stestimony

was based upon, or motivated by, anything otherthantheirbeliefs, based upontheir experience and expertise, though significantly the Administrator's expert was not an expert in the crucial area of skydiving photography, and the Respondent's expert was. With respect to Hinshaw's testimony, 

### In the Matter ofThomasFedele, FAA Order# 98-3, the court based its decision on a disinterested witness who had "no axe to grind." Obviously, Hinshaw, the onlywitnesstotestify he sawjumpersdescendingthrough clouds, has notone axe but

a whole armory ofaxes to grind. The hatred is evident from his actions, as well as those ofhis father, Frank Hinshaw. Assessing credibility after hearing all of the evidence, Hinshaw's lay opinions regarding cloud penetration should be given no weight whatsoever, particularly since it's also been proven to be false as to fact and premise. 

### Fedele may also be distinguished in that in 

### Fedele, thedisinterestedwitnesstestifiedthat airportwas overcast. 

### !d. at4. Inthe instantcase, blue and multiple layers ofclouds can be seen. Also, in 

### Fedele, the violation alleged a cloud clearance violation and not a violation of penetrating clouds. 

### Id. at 1. And Hinshaw's testimony and impressions notwithstanding, there is no video evidence that supports a contention thatthejumpers

were seen coming out ofthe clouds "straight up," from Hinshaw, or his camera. It is noteworthy that the 

### Fedele civil penalty action was against a skydiver and that footnote 3 ofthe opinion states that other enforcement cases were pending against the pilot and other skydivers but does not reference 

### any against the skydiving center operator. 

### Fedele, at 4. In evaluating the expert testimony in this case, per the criteria in the 

### AlphinAircraft, Inc. civil penalty case (FAA Order 97-9), with Mr. Sanders beingthe only expert in photography and in the reasons for inaccuracy ofvideo shot from the ground and from the air, his testimony must bedeemed to be the most logical and the deepest in its analysis ofthe matters at issue with regard to cloud penetration by any ofthe parachutists and in an analysis ofthe limitations ofthe all ofthe video and why none ofit was reliable or probative. Considering that his testimony concerning the effect ofthe camera to subject angle was agreed to not only by lay witness Hinshaw but by the Administrator's expert, and considering that the lens fog effect was confirmed by Mr. McCowan, Mr. Sanders' expert testimony must be deemed to also be the most persuasive. Based upon Mr. Sanders' expert analysis ofthe video, the lack ofreliable testimony from Hinshaw, and the lack of photographic knowledge of the Administrator's expert, there is no preponderance of reliable, probative or substantial evidence proving that any parachutist conducted a parachutejump into or through a cloud on any ofthe subjectjumps. Therefore Respondent's appeal should be granted based on the evidence alone, or rather the lack thereof.

II. TheRespondent is not a responsible party under the applicable regulations. The persons conducting the parachute operation were independent contractors. Assuming any violations occurred, which is categorically denied, Respondent is not a responsible party under the applicable regulations and case decisions. The pilot in command and the parachutists, as independent contractors, are the sole responsible parties. In the instant case, all jumpers involved in the parachutejumps were independent contractors. (2 Tr. 191-3, 195-6, 197, 201,253, 278.) Each was paid for each service they performed as a contractor. (See, for example the independent contractor contracts, A-44 [tandem instructor], A-41 [1099s], A-48 [pilot], A-49 [photographer]). Respondent's president, Guy Banal, did everything he could to inform its employees and contractors ofthe cloud penetration prohibition. He placed notices in its aircraft and around the premisesremindingits employees and contractorsofthe cloudclearancerequirements; thatjumping into or through a cloud was prohibited. (R-20, R-21, 2 Tr. 205, 206.) They were placed where anyone getting in orout oftheaircraft would seethem. (2 Tr. 206). They canbe seen onthe aircraft side walls ofthe aircraft in the Administrator's exhibit A-38 as the jumpers prepare to exit the aircraft. He statedthat he nevertold anyone tojump;that ifit was not good, don'tjump. (2 Tr. 206) Ifthe Court were to find that anyone, in fact, jumped into or through a cloud, 

### it would have been totally outside oftheir instructions and cautions which Respondent, in many different forms, gave to its employees and contractors. Many times, Respondents's aircraft descended with a load of jumpers onboard becausethe pilot, on his own orbecause discussions with personnel on the ground about the sky conditions decidedto abortjumpingoperations and land. 2 Tr 207-208. It shouldbe notedthatMr. Banal'snative language is French, andthathis accentwasverythick, leadingperhaps to a misunderstanding of certain words when recorded by the court reporter, and the ability to express himselfin English is not the best, but the gist, ifnot the literal words, ofhis statements is clear in most instances. When a contractor violated the FAR prohibitingjumping into orthrough a cloud, they were suspended from performing their contractual duties. 2 Tr. 223-4 In response to the Court's question, no one was disciplined by Respondent as a result ofthe "occasions the FAA was worried about. 2 Tr. 225-5. Notethatthe witness' reply, afterhe said "No, because

...."was interrupted by the Court and the answer is incomplete. 2 Tr. 225. It is submitted that his answer would be "because they did not go through clouds." That notwithstanding, Respondent's remedy was to suspend their contracts for any violations or to terminate their contracts. 2 Tr. 195. 14 C.F.R. l.l defines "operational control" with respect to a flight as the exercise of authority over initiating, conducting or terminating a flight. It is clear that, as independent contractors, this authority lies solely with the pilot. 

### Id. The pilot had operational control oftheaircraft. The pilot was contracted to fly parachutists tojump altitude and was obligated by law to comply with the applicable FARs in doing so. The pilot decided what flight pathto take and when to open the aircraft door to give thejumpers the opportunity to assess when and iftojump. Mr. Banal described the process in his testimony. 2 Tr. 210-212. It is undisputed that the personnel involved in conducting the parachute operation were independent contractors. The status ofthepersonnel was not challengedbythe Administrator. The testimony ofGuy Banal was that the pilots and tandem instructors were independent contractors. 2 Tr. 191. The videographers were independent contractors. 2 Tr. 192. In further support ofthe contractor status, it should be noted that the pilots and skydivers chose how to perform their work, based on their specialized knowledge and training, and where in the sky their work ofconducting

a parachutejump would be conducted. The pilot chose when to take offand land and where and how to fly the aircraft. Thejumpers chose when, where andhow to make their parachutejumps, all based on their specialized knowledge and training and their licensed skills. None had set hours of work but chose to perform their contract work when they wanted. There was no obligation to perform full-time work for Respondent. Because they were contracted for individual services for individual aircraft or parachute flights, they worked, took vacation when they wanted, came and went when they wanted and worked at the same time for others. 2 Tr. 234. Respondent introduced the IRS Form 1099s for its pilots, tandem instructors and videographers/photographers (A-41) and representative independent contractor contracts for each class ofcontractor (A-42, A-43, A-44, A45, A-46, A-47, A-48, A-49, A-50 and A-51). Each contractor operated under its own business entity name. Most were LLCs or DBAs. Greg Meyer, a tandem instructor, testified that he was an independent contractor (2 Tr. 253), as did tandem instructor Bryan Stanley. 2 Tr. 279. In further support oftheir independent contractor status, 14 C.F.R. I05.45 contains specific requirements for a parachutist to conduct tandem parachuting operations. They needed to have specialized skills and training. 

### !d. The tandem instructors spotted (lined up for the purpose of jumping) the aircraft. 2 Tr. 179. The tandem instructors controlled the parachutes on a tandem jump. The videographers and camera personnel also had special skills and licenses and had to be experienced jumpers. 

### Id Eachcontractorwaspaidpursuanttotheirindependentcontractorcontract with Respondent, for each time they performed their specialized service. It is uncontroverted that the pilot determinedwhento initiate, conduct orterminate all ofthe subject flights. Inspector Santa Elena testified that the pilot was operating the flights. 1 Tr. 121. He testified that under Part 105, eitherthe pilot orthejumperis responsible for the safety ofthe flight; thatthe pilotwas responsible for deciding how to fly the aircraft after it takes off(I Tr. 122); thatthe pilot and thejumperwould beresponsible for deciding when ajumperwould get out ofthe aircraft. I Tr. 123. Inspector Santa ElenatestifiedthatRandy Pacheco, one ofRespondent's contractorpilots, statedto Inspector Santa Elena that "the weather, it was cloudy over the field but he waited until

.. .it was clear before he released thejumpers. 1Tr. 127. This shows an awareness and an intent to comply with 105.1 7(a). Respondent did not have, and could not have, any control over how and where a pilot flew thejump aircraft or where or when ajumper exited the aircraft for a parachutejump. Hinshaw testified that any pilot can abort ajump run whenever they wish. I Tr. 290. He further testifiedthat "Generally it's leftup tothepilotandthe skydivers onboardbecausethey have the best view ofwhat's occurring." I Tr. 291. McCowantestified that he had conversations with his pilots and that they "knew what I expected." 2 Tr. 174. However, he then acknowledged that he "could not fly the aircraft for the pilot." 2 Tr. 175. He told them what he expected and it was their responsibility
, as pilots who had airman's certificates, to perform properly undertheir certificates. 2 Tr. 175. This was the industry standard.Respondent engaged each contractor for their services for specific purposes (pilot, tandem instructor and cameramanlvideographer). Ifthey violated any FAR in the performance ofthose services, Respondent is notresponsible for it. Ifany violated any FARs, the acts andresponsibility ofconducting the parachute operations lay solely with the violator. In the Matter of Federal Express Corporation, FAA Order 2002-20, is definitive in determining whether Respondent was responsible for the acts ofits contractors. As in the instant
case, the Respondent in Federal Express was not an air carrier and its defense was that it was not responsible for the actions ofits independent contractors. The lower court found in favor ofthe Administrator, and the Respondent appealed. The issue on appeal was whether or not the Respondent was responsible for the improper actions ofits independent contractors. The appellate
courtheld that it was not and reversed the ALJ decision. The Court cited Mini Mart v. DirectSales Tire Co., 889 F.2d 182, 184 (8th Cir. 1989), which held

The general rule encompasses the notion that employers should not be held responsible for activities they do not control and, in many instances, lack the knowledge and resources to direct.

. .The exceptions, in the main, reflect special situationswherethe employer is in the best position to identify, minimize, and administer the risks involved in the contractor's activities. [citations omitted.] 

### !d. at 6.

The Fedex opinion, inter alia, cited the rule that "(i)fan employer does not supervise an entity's day-to-day operations- i.e., control the 'detailed physical performance' ofthe operationthen courts generally find that the entity is an independent contractor." See, e.g., United States v. Orleans, 425 U.S. 807, 814 (1976) (quoting Logue v. UnitedStates, 412 U.S. 521, 528 (1973) and statingthat "acritical element" in determining whether an entity is an independent contractor is the principal's power to control the entity's "detailed physical performance"). See also In re Coupon Clearing Service, Inc., 113 F.3d 1091, l099 (9th Cir. 19970, holding that ifa person has the rightto control only "the result of the work [by another person], and not the means by which it is accomplished,

... an independent contractor relationship exists." 

### !d. Without any evidence in the record to the contrary, the evidence in the instant case is solely that the Respondent could not control the detailed physical performance ofthe pilots, the tandem instructors or the videographers and the means by which each accomplished their tasks, and that each acted independently under their individual licensing authority, their specialized training and their duty to follow the FARs in conducting each ofthe parachutejumps in question. In further support that the pilot andjumpers are solely responsible for violations ofFARs during parachutejumps, it is instructive to look at NTSB decisions involving parachuting. Though FAA AC-l05-2E (A-55) states that the "PIC (pilot-in-command) is solely responsible for the operational requirements ofParts 91 and 1 05," inAdministrator v. James Kelly Foss, NTSB Order No. EA-4631, a case involving an issue ofwho was responsible for parachute jumps made into clouds, the Board referenced the Administrator's position. It stated:

The Administrator's interpretation ofsection l05.29 (now section 105.17) is that it
creates a "dual responsibility for thepilotandtheparachutists (emphasis added) to ascertain that the parachutists can adhere to cloud clearance requirements." (Citationsomitted). Underthe Administrator's interpretation ofthisregulation, "the pilot ofa parachute operation is responsible for determining, prior to releasing theparachutists, thatthe areabetweenthe aircraft and theintendedlanding sitemeetsthe cloud clearance requirements ofsection 105.29." (Citations omitted.) 

### Id.

In a footnote, the Board noted:

The point at which a parachutist becomes 

### solely (emphasis added) responsible for non-adherence to cloud clearance requirements is a decision we need not reach in this case, for respondent's culpability stems from his lack ofactive decision-making 

### prior to the time the parachutists jumped from his aircraft. 

### We are compelled, however, to enunciate our belief-- in accordance with the "dual responsibility" imposedbythe regulation (emphasis added)-- thatpilotswouldberesponsibleunder this regulation for all

### foreseeable violations by parachutists ofthe requirements of section 105.29. In this regard, pilots should discuss with parachutists the requirements ofsection I05.29, particularlybecauseparachutists are notlicensedby the FAA and they will not necessarily be familiar with FAR requirements. It also

seems axiomatic that a pilot could not make the required independent evaluation unless he has taken steps to insure that the parachutists know the cloud clearance requirements and plan to abide by them. 

### Id.

Thus, under both the Administrator's and the Board's interpretation, the responsibility is a dual responsibility shared between the pilot and the parachutists. It is noteworthy that though the pilot in

### Foss failed to discuss withtheparachutiststherequirements ofsection 105.29 (now 105.170, theRespondent did, in fact, discuss it with each pilot andjumper,placed placards in the aircraft (R20, R-21), and also met with all ofhis contractors because he wanted to "make sure it's covered." 2 Tr. 203. With respect to the issue ofRespondent conducting the parachute operation, the Board's
statement in 

### Administrator v. Bischoff, Order EA-608 (1974), 2 NTSB at 1013 is definitive in determining, based on the evidence, that the Respondent is not responsible for the acts of its
contractors. InBischoff, the Board stated: "Notevery "operator" ofa flight who technically comes within the definition (ofoperator) could be held responsible in an enforcement action

... Rather, the operator must be shown to have been involved in the flight in such a manner that it can reasonably be inferred that, in the absence of any evidence to the contrary, he participated in, authorized or permitted the violations." 

### ld. at 1015. Clearly, in the instant case, the Respondent did not participate in, authorize ofpermit any violations which may be deemed to have been committed by the pilot or the parachutists. To the contrary, itdideverything it couldtopreventthem, but, as the evidence shows, oncethepilot elected
to take offfor a flight, there was no way for the Respondent to control the pilot, the aircraft or any ofthe parachutists once the aircraft took off.



### Ill. The penalty demanded by 

### the Administrator is excessive and is not supported by 

### the relevant gnidance; The Respondent was not careless or reckless. The penalty demanded by the Administrator is clearly excessive. The Administrator seeks

a total penalty of$55,000.00, combiningtwo notices ofproposed civil penalty into one final Notice ofProposed Civil Penalty and one Complaint. The amount ofthe penalty is governed by the guidance contained in FAA Order 2150.3b (the "Order"). Forthe purposes ofthis section ofthis closing argument only, in order to discuss the appropriateness ofthe amount ofthe sanctions, weshall assumethattheCourthasruled that one ormore oftheviolations occurred, though Respondent categorically denies that any did. Theclaim is $22,000.00 for alleged violations on one flight in December 2013 and one flight in January, and $33,000.00 for alleged violations on three flights on March 22,2014 and on three flights on March 25,2014. Apparently, the Administrator is seeking $11,000.00 per violation for the alleged violations on December 8, 2013 and January 5, 2015, and is seeking $33,000.00 for alleged violations on a total ofsix flights in March 2014. This is $11,000.00 per flight for the first
two dates andonly $5,500.00 for each oftheflights onthe lattertwo dates. TheAdministratoroffers

no reasons to justify why the first two flights were different from the latter three. Absent such justification, the penalties demanded are arbitrary and capricious. In determiningthe amount ofcivil penalty, the Administrator fails to show any aggravating factors. Insofar as mitigating factors, Respondent had no record of violations for conducting parachute operations into or through clouds. 1 Tr. 131. The Administrator acknowledged that the Respondent is a "small business concern." 1 Tr. 14. Despite the requirement that "Each FAA employee who conducts an inspection of a small business concern that is regulated by the FAA provides the small business concern with an information sheet"to inform "thatentitythatitmay submitcomplaints orcommentsregardingunfair FAA regulatory enforcementto the National Ombudsman," (A-1, 186), this was not done. I Tr. 52. The Administrator failed to follow its guidance, as specified in FAA Order 2150.3b. A-1 at 7-21. Respondent was prejudiced by it not knowing that it could complain about what it considered an unfair investigation based upon false information. Perhaps the penalty amount could have been mitigated by the Small Business Ombudsman, but Respondent never had the chance to try. Respondent was fully compliant with the Administrator's investigation into the matters alleged in the Complaint. 1 Tr. 67, I Tr. 130-1. Itreplied to the letters ofinvestigation. It provided all documents requested by the inspectors. I Tr. 80, I Tr. 130. Respondent has no history of violations of91.17. I Tr. 68, 2 Tr. 229. The Order providesthat: "Ofparticular importance in determining an appropriate sanction for numerous multiple violations is the degree ofthe alleged violator's culpability for the multiple violations. A lower degree ofculpability is presentwhen the alleged violator neither knew nor was likely to discoverthe continuingviolations." Thetestimony and evidence demonstratethedifficulty in ascertaining whether or not a parachutist went into or through a cloud from the ground. The fact is, only the accusedjumpercan know for sure. Mr. Banaltestifiedthatwhenhe confrontedjumpers with accusationsthatthey wentthrough a cloud, they responded, "prove (itto) me." 2 Tr. 223. With the difficulties of proof one way or the other encountered in the instant case, Respondent understandably does not want to risk a breach of contract action for wrongfully terminating a contractor's contract, nor does it want to risk FAA enforcement action. Absent definite proof, however, sanctions againsttheircontractors are impossibletojustify, and sufficientproof, based on Mr. Sanders' testimony in this case is impossible to obtain from the ground. Thus a lower degree ofculpability is present in this case. Otherfactors affectingthe amount ofthecivilpenalty includewhether ornotthe Respondent

was careless orreckless in its conduct. As discussed above, Respondenttook everymeasure it could
to preventviolations ofl05.17(a),butthere was no way it couldcontrolthe actions ofits contractors

once they left the ground, and because ofthe rapidly changing cloud conditions, it was necessary to determine whetherajump could be made in compliancewith 105.17(a) from the air, notfrom the ground. As previously mentioned, many times Respondent's aircraft descended with a load of jumpers because it was too cloudy tojump. 2 Tr. 207-208. Any violation ofF AR 105.17(a) by Respondent waspurely inadvertent andunintended. There is no evidence that any ofRespondent'sactions were deliberate. Respondent was not careless or reckless. It was powerless to control contractors engaged to achieve certain results and who were expected, in choosing methods to accomplish their services to follow the FARs, as required. The creativeevidence presentedbythe Administratorregardingpotential harmto the person
or property ofothers was purely speculative, with a remote likelihood ofits occurrence. Rebuttal testimony to the hypothetical ofa parachutist striking helicopter blades was that clouds were not a factor in increasing the risk ofstriking the blades ofone ofthe helicopters that "come in and out to get fuel occasionally" 3 Tr. 101; that ajumper couldn't avoid striking a helicopter as described in the hypothetical, even in clear skies. 

### Id And with respect to glider operations and the risk of a parachutist hitting one, Hinshaw's testimony was that "skydivers have fallen very close to gliders and that's been in clearconditions." I Tr. 183 There was notestimonythatclouds increasedthe risk. In fact, Mr. Sanders testifiedthatthe glider in the video was "definitely downwind ofthe drop zone, which is not where the parachutes will go

... so it is not a concern. It is to the west ofthe landing zone." 2 Tr. 255-256. He testified that he flew at the airfield "ahnost every single day and it's a 9,000 foot runway

... Itis two independent runways and it'snot an issue at all. This is not a safety thing at all." Further, Mr. Sanders testified that the Sectional aeronautical chart A-54 states "extensive jumping activity" (actually "intensive parachute activity") (A-54) and that all pilots would be aware ofthe markings on the chart. 2 Tr. 357; that typically the gliders are flown with

someone that flies there every day because they are taking people up for rides. Further, the glider

was nowhere near overhead ofthe parachutist landing area. 2 Tr. 357-359. Hitting a glider was not

a risk. A concern aboutjumper collisions with gliders or helicopters at an airfield for which the charts andotheraeronautical publications (A-53) andeventhe runways (2 Tr. 3570 aremarkedwith warnings aboutparachutejumpersand with arequirednotificationpursuantto 14 C.F.R. I05. 15 and I05.25 warning all aircraft about parachutejumping at and around the airfield, is a red herring in determiningwhetherornot a violationof91.13 occurred. Wehave already addressedthe credibility ofMr. Hinshaw. Mr. Sanders' opinion is the one which is credible. Respondent has not violated FAR§ 91.13, regardless ofwhether or not it was included in determining the amount ofthe civil penalty. The Order states that "One ofthe agency's goals is to achieve relative consistency in imposing similar sanctions for similar violations." Order 2150.3b at 7-8. There appears to be no other case in which a civil penalty was assessed against a skydiving operator for a violation of 91.17(a). All cases found were against a pilot or a parachutist. This suggests that it is not proper to bring a civil penalty action against the Respondent. Further, the question arises as to how consistency can exist in the instant with the large variation in proposed sanction between that for the first two dates and that for the second two. This appears to go against the guidance. The Order also states that "When determining a specific sanction amount within a range, FAA enforcement personnel begin with an amount in the middle ofthe range and increase that amount toward the higher end ofthe range for aggravating factors or decrease that amount toward the lower end ofthe range for mitigating factors." A-1, at 7-9. The Administrator has failed to do this. indication in the record that the Administrator has considered any of the factors in what appears to be an arbitrary proposed sanction. Consideringthe SanctionGuidanceTable, A-1, AppendixB-6, for somereason, unspecified in the evidenceandunsupportedbyany stretch ofargumenttheAdministratorcouldrationally make, the Administrator has chosen to place all proposed penalties in the "Maximum" category and even not at the lowest amount in that category. Penalties ofthis amount are completely unjustified, particularly under the circumstances ofthis case. The only possible reason for the high penalty amounts might be that the Administrator was unaware, atthe time he proposed the civil penalties,

### and put them out ofbusiness, rather than seeking truth and safety, he might have determined early

onthat Hinshaw's videos had zero credibility, and this case might never have been brought. Therefore, considering the Sanction Guidance Table, the penalties, should be in the minimum, rather than in the maximum category. That penalty range is from $550-$2199. In view of Respondent's lack of actual involvement in any violations committed by its contractors, Respondent suggests that any penalty assessed, ifany is assessed, should be $550 per violation.

CONCLUSION 

### Thus, there being absolutely no 

### reliable, probative and substantial evidence in the record to support any 

### ofthe Administrator's allegations ofviolations of 14 C.F.R. §105.17(a) and §91.13, as required by 14 C.F.R. §13.223, Respondent respectfully moves that its appeal be GRANTED and that the Administrator's Complaintbe dismissed, and for such other and further reliefas this Court may deemjust and proper.
Respectfully submitted,

Robert L. Feldman, Esq., B.C.S. Attorney for the Respondent 8900 SW 107 Ave., Ste 203 Miami, FL 33176 Telephone; 305-598-4841 Fax: 305-598-4842 Email: feldmans48@hotmail.comCERTIFICATE OF SERVICE

I hereby certifYthat on this date I have senta true copy ofthe foregoing by Fedex, addressed
to:

Federal Aviation Administration 800 Independence Avenue, SW Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Room 2Wl000

and by email and Fedex to:

The Honorable Douglas M. Rawald, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590 Tel: 202-366-5121 Fax: 202-366-7536 Email: c/o Ms. Jacklyn Booker (jacklyn.booker@dot.gov)

Don Bobertz, Esquire Office ofRegional Counsel, AWP-7 Federal Aviation Administration Western-Pacific Region 15000 Aviation Blvd Lawndale, CA 90261 Tel: 310-725-3454 Fax: 310-725-6816 Email: don.bobertz@faa.gov



## --:? _r--£7)



# ~dk~----,, Robert L. Feldman

Dated: 6 February 2017