U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION

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# cE

# 'vED DEC 102014 FEDERAL AVIATION ADMINISTRATION, 

## HEARING DOCKET Complainant,
vs. AIRBORNE MAINTENANCE AND ENGINEERING SERVICES, Respondent. DocketNo. FAA-2013-0291 FAA Case No. 2011S0290032
Judge Sullivan

RESPONSE TO MOTION FORSANCTIONS 

### On December 2, 2014, Respondent moved the Judge to impose sanctions on the FAA relating to the FAA's expert disclosures. Respondent's motion is, in all aspects, not well taken, and should be denied. Further, Respondent has again violated- deliberately- the Judge's Orders

on conferring withthe other party before filing discovery motions. First, Respondent accurately asserts that the deadline for expert witness disclosures was November 19, 2014, and that the FAA did not complete its expert witness disclosures until December 1, 2014. 1 

### The FAA does not dispute the discovery deadline, butthere was good cause for the delay. On the morning ofNovember 18, 2014, the undersigned was informed that his sister-in-law was gravely ill, 

### and would likely die. As a result, the undersigned, the undersigned's wife, and the undersigned's two children immediately packed and drove to Des

1The FAA had previously made some expertwitness disclosures in response to Respondent's Interrogatories, see AttachmentA (excerpt from discovery responses served on Respondent onMarch24, 2014), andprior to litigation even commencingtheRespondenthadbeenprovidedwith statements andletters from theFAAInspectors setting outtheir observations andtheirconclusions based on those observations, all ofwhichwere items ofproofin the EIR. See Attachments B, C, D, E. 

### 1

### Moines, Iowa. Ultimately, the undersigned's sister-in-law died,2 

### and her funeral was held (in Clear Lake, Iowa) on November 25, 2014. The undersigned did not return to the office until December 1, 2014, and could not reasonably have returned to the office any sooner than that date3 

### Additionally, the nature ofthe filing to be made

- an expert witness disclosure

- was not
one that could be handled by another attorney unfamiliar with the case. 4 

### When the undersigned returned to the office on the morning ofDecember 1, 2014, the undersigned informed opposing counsel that the undersigned had been out of the office due to a family emergency. See 

### Attachment F.5 

### Laterthat day, the undersigned servedthe FAA's additional expert disclosures on Respondent via facsimile. In 

### the above circumstances, the undersigned acted with all possible diligence, and good cause existed for the late discovery disclosure. Additionally, Respondent has cited no prejudice whatsoever from the expert disclosure being two weeks late, much less the deprivation of "due process" Respondent claims has occurred. Even if there was no good cause for the late submission of the expert discovery disclosures, a total exclusion of all expert witnesses would be an extraordinary and severely disproportionate result.6 

### Not only was there good cause for the FAA's delayed disclosure, but

even ifthere was not good cause, thepenalty soughtbyRespondent is inappropriate.

2 Theundersigned does notbelievethatthe details oftheundersigned's sister-in-law's medical condition are pertinentto this motion, and so does not intrude onherprivacybyputtingthem ontherecordhere. However, tothe extentthe Judge deems it necessary and appropriate, the undersigned can provide additional detail. 3 ClearLake, Iowa, is approximately a 16-hour drive (not counting stops) from Atlanta, Georgia, and- especially withyoung children- this drive typicallytakes two complete days. While itwouldhave beenphysically possibleto make this trip onNovember 26 and 27, andfor the undersignedtobe inthe office on Friday, November28,2014, giventhe circumstances, andthatNovember 27, 2014 was Thanksgiving Day, itwouldbeunreasonableto require theundersigned andhis family to have left immediately after the funeral and spentThanksgiving Day on the road. 4 By contrast, the straightforwardresponse to Respondent's Requestto SuspendLitigation dates couldbe, and was, filed by an attorney in the office who was unfamiliar withthe case, eventhoughthe undersignedwas notavailable. 5 As notedin the e-mail, evenpriortothe family emergency, the undersignedhadbeen outofthe office for most of the weekprior due to illness, in particular asevere respiratory infection. 6 Respondent also notes thatthe FAA did notrequestpermissionto make a lateexpert disclosure, but ithas notbeen the undersigned's experience for parties to askthe Judge in a case for permission to make late disclosures during discovery- the undersignedhas literallynever seen a litigant seek leave in such a situation, anduntil now has never seen a litigant orjudge suggestthat such arequest shouldhave beenfiled. Rather, the party simply makes the 

### 2

### Respondent asserts in its motion that the late submission ofthe expert disclosures was "unexplained." 

### See Motion at 3. This is misleading at best, and to the extent there is any accuracy to this statement, it is the result ofRespondent's admitted failure to comply with the Judge's Orders. First, Respondent's assertion is not accurate because, as noted above, the undersigned had informed opposing counsel that he had been out ofthe office for two weeks because of a family emergency and funeral. 

### See Attachment F. To the extent that explanation

was insufficient for opposing counsel, opposing counsel could have followed up with the undersigned to inquire as to the particular circumstances. And, as Respondent acknowledges in its Motion,

### see Motion at 2 n.l, ifRespondent wishedto file amotion withthis Court concerning alleged discovery deficiencies, Respondent was 

### requiredto engage in further conversation with the undersigned about the matter. 

### See Order Setting Litigation Dates and Procedures (served November 7, 2013). Respondent instead engaged in no discussion at all, and simply filed its Motions. Perhaps ironically, Respondent in filing its Motion for Sanctions, has itselfengaged in conduct that could be subject to sanctions, especially given that this is the second time that Respondent has made a discovery motion without engaging in any effort to discuss the matter with the undersigned in advance. 

### See Order Reserving Respondent's Second Motion to Compel and Directing the Parties to Engage in aRule 37 Discussion, dated June 16,2014.7 

### In its Motion, Respondent also argues that, regardless ofwhether the expert disclosures
were timely, they were also deficient.· This assertion highlights the problems arising from Respondent's failure to confer with the undersigned about what it believes to be deficiencies in
disclosure (as they are requiredto do), and thenthe receivingparty, after any appropriatediscussions with the disclosingparty, woulddecide whetherto file a motionto exclude at an appropriate time. Intheundersigned's experience, arequesttothe Judge to for permission to make a late filing is only made for a document, such as a Motion orAnswer, which is actually filed with the Judge. 7Afterthe issuance ofthe Judge's June 16, 2014, Order, Respondent didnot contacttheundersigned to confer about the subject ofits Second Motionto Compel. Accordingly, the undersigned presumesthatRespondentis not interestedin further pursuingthe perceived deficiencies in the FAA's discovery responsesreferenced in thatMotion to Compel. 3

### the disclosures. Respondent seeks to excuse its deliberate failure to engage in good faith discussions before filing its Motion onthe basis that there was nothing to discuss concerning the filing date of the expert disclosures. 

### See Motion at 2 n.l. But this explanation ignores Respondent's assertions about the alleged deficiencies in the FAA's disclosures, which are exactlythe sortofsubjectmatterthatwouldberaisedin such adiscussion. As an initial matter, Respondent asserts that the FAA was required to produce expert witness reports, pursuant to Rule 26(a)(2)(B) of the Federal Rules of Civil Procedure. 

### See Motion at 3. However, none of the FAA's expert witnesses are required to produce reports because they are not outside experts and their duties do not regularly involve giving expert testimony

- not only did the FAA note in its disclosure that these witnesses were covered by Rule 26(a)(2)(C), but the Respondent could have discussedthis topic withthe undersigned, had it engaged ingood faith discussions. Respondent also argues that, even under FRCP 26(a)(2)(C), the FAA's expert disclosure

was insufficient. As to expert opinions, FRCP 26(a)(2)(C) requires only a "summary" of the "opinions to which the witness is expected to testify." While Respondent asserts that the expert disclosure did not meet this standard, Respondent fails to identify why it did not. 

### See Motion at 3-4. It 

### is undisputed in this case that Respondent replaced the main landing gear, and accompanying flying doors, on three B727 aircraft, that as part ofthis replacement the flying doors had to be "rigged" by Respondent, and that whenthese areas ofthe aircraft were inspected in May 2010, various kinds ofdamage were found to the flying doors and adjacent structures. As Respondent has been made well aware both before and during this litigation, through conversations, letters, statements, and discovery disclosures, it is the FAA's position that this damage was caused by improper installation and rigging ofthe flying doors. The opinions ofthe

4

### FAA's expert witnesses to this effect are expressed in the expert disclosures. It 

### is unclear what Respondent finds lacking about this summary of the expert testimony, especially since Respondent's own expert disclosure (which does fall under the more stringent standards for paid outside experts) essentially says the reverse -that (after discounting unspecified eyewitness testimony) he concludes for unspecified reasons thatthe damage was caused by routine wear and tear. 8 

### In sum, there is no deficiency in the FAA's expert disclosure, and Respondent does not identify in the motion what the deficiency is in a marmer that would permit the FAA to respond in more detail. This is exactly the sort ofdiscovery dispute that Respondent should have, but did not, discuss withthe undersignedbefore seeking the Judge's intervention onthe subject. Further, even if there was something deficient in the substance of the FAA's expert disclosure, Respondent does not present any explanation for why this is the subject ofa Motion for Sanctions and that the experts should be excluded in their entirety. Even ifthere was some deficiency in the FAA's expert disclosure, this would usually be (after a good faith effort to resolve the matter) the subject ofa Motion to Compel seeking the provision ofadditional detail. Although there is no deficiency in the FAA's expert disclosures, and Respondent has identified none, even if some deficiency is found, the appropriate result would be to order the FAA to rectify the identified deficiency. Finally, Respondent argues that all ofthe FAA experts should be precluded on the basis that none ofthem "is indicated as having any particular expertise involving operational wear and tear." See 

### Motion at 4. The placement ofthis argument in this Motion for Sanctions is puzzling. To the extent it is a substantive challenge to the qualification ofthe FAA's expert witnesses to opine as to the cause ofthe damage observed on the aircraft, that is a challenge that is not (and

8 Respondent's expert disclosure is itselfdeficientunderthe standards for paid outside experts, butthe undersigned has nothad the opportunityto complete discussions with opposing counsel onthe matter. 

### 5

### cannot) typically be made until later in the litigation process, with a more developed record before the Judge. Indeed, under FRCP 26(a)(2)(C), the Rules do not even require provision of information about the witness's qualifications, as that is only a requirement under 26(a)(2)(B), which is not applicable here. To the extent that tills is a substantive challenge to the qualifications ofthe FAA experts, Respondent has presented no basis for a final determination thatthey cannot speak as to the cause ofdamage to an aircraft, and its motion is due to be denied. To the extent that Respondent is asserting that there is merely a deficiency of disclosure, it is unclear what Respondent believes should have been in the disclosure, but was not. What is required under Rule 26(a)(2)(C) is "the subject matter on which the witness is expected to present evidence," and that has been amply provided. Additionally, "operational wear and tear" is not a topic that one would typically be identified as an "expert" in. Three of the FAA's identified experts are experienced mechanics9 

### and FAA investigators, have broad expertise in aviationmaintenance and investigations, atopic whlch includes determiningthe cause ofdamage to an aircraft and whether maintenance was properly performed, whether "wear and tear" is one ofthe possibilities or not. The absence ofa specific sentence identifying "operational wear and tear" as a sub-category is not necessary, especially where (as here) the Respondent has been made well aware ofthe opinions to be delivered. Further, as with the prior topics, even if there was some deficiency in the FAA's disclosures, the Respondent has failed to provide any basis for why the appropriate result should be the total exclusion ofwitness testimony. As discussed above, the usual process in 

### this sort of situation would be for the Respondent to contact the undersigned about the alleged deficiency, for the FAA to rectify (or not) the perceived deficiency, and only after that discussion has concluded, for the Respondent to seek the intervention ofthe Judge. And even then the remedy

9 The fourthFAA expertis apilot, whoserelevantexpertise inthis case is narrower. 6

### would not be the exclusion of witnesses, but rather an Order requiring that the deficiency be rectified. In sum, Respondent's Motionfor Sanctions is whollywithoutmerit. There was more than good cause for the delay in the FAA's submission ofits additional expert disclosures, and while Respondent asserts that the provided disclosure is deficient, Respondent has failed to articulate what about the disclosure is deficient, or what else it believes should have been provided. This lack of detail only emphasizes Respondent's deliberate disregard for the Judge's Order concerning the requirement that parties engage in a good faith discussion about discovery matters beforebringing them to the Court. WHEREFORE, the FAArespectfully requeststhatRespondent'sMotion for Sanctions be denied. Specifically, the FAA requests thatthe Motion be denied, not simply reserved. Not only does the Motion fail to identify any deficiency, but this is the second time that Respondent has filed a discovery motion with the Court without making any effort to resolve the matter informally. In the first instance, the Court reserved ruling on the Motion to Compel to permit Respondent to engage in the Rule 37 discussions required. 10 See 

### June 16, 2014 Order. Because this is Respondent's second violation- and a deliberate violation- ofthe Judge's Orders onthe subject, Respondent shouldnotbe given an opportunityto engage in discussions now.

## ~r Respectfully submittedthis

# L day ofDecember, 2014.

CHIDSTOPHERSTEVENSON Attorney Office ofthe Regional Counsel

10 As noted above, Respondent did notfollow up, butrather abandoned the matter. 

### 7CERTIFICATE OF SERVICE Ihereby certifY thatthe foregoing Response to Motion for Sanctions was sent: original and one copyvia certified mail to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWrightBuilding- Suite 2Wl000

one copy viacertified mail and facsimile to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 RobertP. Silverberg, Esq. 1101 30th Street, NW, Suite 120 Washington, D.C. 20007 Facsimile: (202) 944-3306

# ~!h Program Analyst Office ofthe Regional Counsel 

## DEC , 5 2014 Dated

8Interrogatory 

### # 3: The FAA has not identified which experts it will use at hearing, although the Aviation Safety Inspectors involved (including Frank Lipinski, Bobby Evans, Jack Gasche, Richard D'arcy, and Billie Steffey) may be called upon to provide expert testimony concerning their personal observations ofthe aircraft at issue. When experts are identified, the information requested will be providedinthe FAA's expert disclosures pursuantto Rule 26.

Interrogatory 

### #4: The only witnesses the FAAhas identified atthis point are the Aviation Safety Inspectors involved (noted above), who are expected to testify as described in the FAA's initial disclosures, as described in statements inthe EIR, and as noted below. Inspector D'Arcy has the

same location information as Inspectors Lipinski and Gasche. Inspector Steffey personally observed the condition of the aircraft in question, and spoke with Respondent's personnel (including its DQC and DOM) about the situation, including their oral admissions that Respondenthad not done the rigging properly.

Interrogatory 

### #5: Inspector Evans received atwo-yearElectronics/Communications Certification from Ashland Technica!Nocational School in Ashland, KY, in 1987. He received an FCC general license in 1990. Inspector Evans served as an Avionics/Electronics Technician with the Ashland, Inc. Flight Department from 1988 through 2008. Inspector Evans held a repairman certificate from 1990 through 2008. He no longer holds the repillnnan certificate because repairman certificates are repair station specific and he no longer works for that repair station. Since 200I Inspector Evans has held a Mechanic Certificate with Airframe and Powerplant ratings. Inspector Evans has been employed by the FAA as an Aviation Safety Inspector since 2008.

GOVERNMENT 

# EXAlTInterrogatory 

### #6: Inspector Lipinski served inthe United States Marine Corp from 1970 through 1988 in a number ofpositions, including Aircraft Maintenance Technician Senior Chief, Crew Chief, Plane Captain, Flight Crew Plane captain, Quality Assurance Inspector (All Systems), Quality Assurance Representative (All Systems), Quality Assurance Department Chief, Maintenance Control Manager/Chief., Flight Engineer, Flight Engineer Check Airman/Standards Evaluator, Flight Loadmaster, Radio Operator, and for a number of aircraft, including the Grumman S-2, Lockheed P-2 and P-3, Grumman C-IA, Douglas C-54, C-118, C-9B, Convair C131 Series, Sabreliner CT-39 Series, Sikorsky H-3, ConvairVC-131 Series, and Sabreliner 40/60 series. Inspector Lipinski has held a Mechanic Certificate with Airframe and Powerplant ratings since 1988, a FlightEngineer certificate since 1988, and a Pilot certificate since 1990. Inspector Lipinski performed maintenance and served as chiefflight engineer for American Air Freight, including B-727 operations, from 1988 through 1991. Inspector Lipinski supervised maintenance and inspector activities, and served as an instructor, for Laredo Air from 1989 through 1990. Inspector Lipinski supervised maintenance activities at repair station American Jett Center from 1989 through 1991. From 1992 through 1992 Inspector Lipinski served as chiefflight engineer and Director of Maintenance for Alcair Air Transport. From 1994 through 1998, Inspector Lipinski worked at Trans Air Link Airlines, serving as a flight engineer and maintenance supervisor, including on B-727 aircraft. Inspector Lipinski served as a maintenance supervisor for Spirit Airlines from 1996 through 2000. Inspector Lipinski worked for International Aviation Inc. from 1999 through 2000. Inspector Lipinski has been employed as an Aviation Safety Inspector (Airworthiness) since 2000.Interrogatory 

### #7: Inspector Gasche studied Architectural Engineering at the collegiate level before playing professional baseball, and then later studied marketing at the collegiate level. Inspector Gasche holds an Airline Transport Pilot Certificate with ratings including Airline Multi-Engine Land, Single-Engine Land, B-757, B-767, B-727, and SAAB 2000. Inspector Gasche holds a Flight Engineer certificate with ratings in reciprocating engine, turboprop and turbojet. Inspector Gasche served invarious positions at Branifflnternational Airlines from 1964 through 1984, including ChiefPilot and Check Captain for the Boeing B-727. Inspector Gasche served as a flight instructor and B-727 pilot for Piedmont Airlines from 1987 through 1989. Inspector Gasche served as a pilot for US Airways from 1989 through 2000, including flying B727 aircraft. Inspector Gasche worked for FlightSafety International from 2001 through 2003, with duties including simulator and ground school instruction. Inspector Gasche has been employed bythe FAA as an Aviation Safety Inspector since 2003.

Interrogatory 

### #8: Inspector D'Arcy has held a private pilot certificate since July 1984. Inspector D'Arcy served as an avionics technician in the United States Marine Corps from 1984 through 1987. Inspector D'Arcy served as an aircraft electrician for Grumman Aerospace from 1987 through 1989 and for The Boeing Company from 1989 through 1990. Inspector D'Arcy worked

as a repair station avionics inspector at McDonnell Douglas Commercial Aircraft from 1990 through 1992. Inspector D'Arcy has held a Mechanic Certificate with Airframe and Powerplant ratings since 1991. Inspector D'Arcy obtained an FCC General Radiotelephone Operator license in 1994. Inspector D'arcy worked at ValuJet Airlines from 1993 through 1997, first as a Maintenance Representative and then as Manager of Liaison Engineering. Inspector D'Arcy

### served as Manager ofQuality Assurance atAir Train Airways from 1997 through2003. Inspector D'Arcy has served as a Principle Avionics Inspector since 2003. Inspector D'Arcy received FAA-providedtraining on the B727 in2007, in additionto standard FAAtraining.

Interrogatory 

### #13: The following documents, all ofwhich were contained in the EIR and have been provided, support the allegation: Items ofProof I, 6, 7, 8, 9, 10, 11, 12, 13, 14, 16, 17, 19, 21, 22, 23, 24, 25, 26, and 31. It is additionally noted that the documents produced by Respondent may support the allegation as well, but the FAA has not yet had the opportunity to fully review those documents. Review at this stage indicates that, in addition to documents already included inthe EIR, documents supporting the allegation include document numbers 44, 108, 116, 117, 122, 135.

Interrogatory #14: 

### As provided in the Administrator's published sanction guidance, FAA Order 2150.3B, Figure B-3-b(12), the penalty range for a repair station improperly performing maintenance for an air carrier is Maximum. As provided in the Administrator's published sanction guidance, FAA Order 2150.3B at B-5(4), the Maximumpenaltyrange for an air agency that is a large business concern is $16,250 through $25,000. The midpoint of that range is $20,625. Respondent engaged in three actions of violation (one for each aircraft), and three incidents at $20,625 per incident is $61,875.

Requests for Production Request for Production 

### #1: There are no such documents beyond the documents identified in the interrogatory responses themselves, which have already been produced, and documents coveredu.s. Deportment of Transportot1on Federal Avlcfion Admlnlstra!lon July 22,2010 

## RECEIVED 

## AUG -f. 

## 20Jl Capital Cargo International

CERTIFIED MAIL-RETURN RECEIPT REQUESTED EIRNo. 201OGL050030 Benjamin Buck Manager Quality Control/ ChiefInspector Capital Cargo International Airlines Inc. 7100TPC Drive, Suite 200 Orlando, FL 32822 Dear Mr. Buck: Flight Standards District Oftlce 4358 Ferguson Drive Cincinnati OH 45245 Phone:513-842-9600 Fax: 513-842-9620

During thetimeframe ofMarch 12,2010 through March 22, 2010, the right hand main landing gear was installed on aircraftN287SC, an aircraft operated by yourcompany. Investigation by this office has determinedthat a tubularbearing was not installed during installation ofthe landing gear door; furthermore, this was not discovered during the subsequentrequired inspection. This is inviolation of !4 C.F.R. part 12!.363(a) (b), l21.367(c). This is to confirm my discussion with you on July 7, 2010, atwhich time we discussed several corrective actions that were beingimplemented by your company. This included a training programfor maintenance personnel, work card revisions, and counseling for the inspectors involved. I have received the documentationto verify implementation and have found the corrections acceptable. Wehave considered all available facts and concluded that this matter does not warrant legal enforcement action. In lieu ofsuch action, we are issuing this letter ofcorrection which will be made a matter ofrecord. Sincerely, 

## L)e-l:tbc

# 1**k_/"'t;uc~** BobbyW. Evans Aviation Safety Inspector**-~GOVERNMENT** 

# j EXHIBIT 

# I 6

# Federal Aviation Administration 

# Memorandum
Date: 12 December, 2010 

### To: Manager ASO 7 

# Li4Li

From: Inspector FrankV. Lipinski Subject: C8GA B-727 Flying Doors InstallationFindings- Inspector's Statement
Dnringthetime frame of25-27 May2010 I was performing surveillance activities onB-727 type aircraft operatedby Capital Cargo International Airlines (Capital) at the Toledo, Ohio International Airport. Capital Cargo InternationalAirlines is a CFR 14 part 121 certificated "All Cargo" Supplemental Air Carrier (AirCarrier Certificate# C8GA881Y) that operates out ofToledo under contractfor BAX Global Inc. I am assigned as the PrincipalMaintenance Inspectorfor the Certificatethat is under thejurisdiction of the SouthFlorida CertificateManagement Office (ASO CMO 29). Dnringthenight of25 May2010 and morning of26 may2010 I inspected, alongwith Operations Inspector Charles Gasche (An ASO CMO 29 shared Geographic Inspector assigned to Capital) three aircraftthathad recentMainandNose Landing Gear (MLG, NLG) replacements. Thereplacements of the gears were due to calendartime expirations oftenyears time in service. The aircraftinspected were N899AA, N898AA, and N287SC. Dnringthe aircraft inspections numerous discrepancies were found intheinstallations ofthe MLG (Commonlycalled "FlyingDoors" in the B-727 operator world) doors onallthree aircraft. Allthree aircrafthadMLG doors that were missing mounting hardware as well as improperly installed spacing shims onthe doors to airframe attach fittings. The aircraftmanufacturers' instructions (Capital's approved aircraft maintenanceprogram is Boeing's instructions solely) for replacement oftheMLG andNLG includeremoval, installation, and rigging ofthe Flying Doors to facilitate the gearreplacements. The improper installation/rigging ofthe FlyingDoors caused damage to all three aircrafts structures that came in contactwiththe doors i.e., inboard flap trackfairings mating surfaces withthe doors, doors structures adjacentto the attach fittings, hinge fairing fittings for the doors, hydraulic lines associated withthe brake system, andthe anti-skid wiring conduits for the wheel brakes. Fourofthe sixFlyingDoors inspected also haddamage to various areas ofthe doors dueto incorrect positioningofthe doors. N287SC hadthe rightMLG anti-skid system wiring conduit improperly positionedto front ofthe MLG strutwhenthe B-727 manufacturers' maintenancemanualrequires the conduitbepositionedto theright inboard section ofthe strut. This improperpositioning caused damage to the leading edge ofthe geardoor, mating surface ofthewing to the geardoor, strut, andhydraulic line. All ofthe discrepancies found werebroughtto the attention ofthe Capital maintenancerepresentatives at Toledo. 

### GOVERNMENT EXHIBIT



# e:The discrepancies were placedinthe aircrafts AircraftFlightandMaintenanceLog (AFML) andthe aircraft weretaken out ofservice by Capital. I asked Capital whoperformedthe gear changes and when didthe gear changes take place. 2

Capital responded with "AircraftMaintenance andEngineering Services (An MRO based atWilmington, Ohio designator ABXR) andfor N899AAthe replacement date was 7/09, for N898AAthereplacement date was 9/09, andfor N287SC the replacement date was 3/10. All gearreplacements hadbeen accomplished attheAircraftMaintenance andEngineering Services (AMES) Wilmington facility. I asked ifany otherMLG maintenance actions hadbeenaccomplished on any ofthe aircraft sincethe gear replacements andthe answer was no. I asked ifany discrepancies had beenreported for the doors and structures sincethe gear replacements based on the fact thatthe doors and attachments are on inspection requirements for Capital Service Checks, A Checks, and FlightCrewprefight walk around Airworthiness checks and the answer was no. I askedifMLG andNLGreplacements and door riggings were on the CapitalRequired Inspection Item (RII) list and the answer was yes. Based on my fmdings, I informed Capitalthat it appeared thatimproper maintenance had beenconducted on all three aircraft and postmaintenance inspections had notbeen conducted to ensure properrigging and, subsequentto the maintenance and inspection oversights, Capital had not found the discrepancies while operating the aircraft. I further statedthat Capital should have found these discrepancies duringA Checks and Service Checks as required by the Capital Maintenance and Inspection Program (MIP) and FlightCrew Airworthiness walk around inspections as required bythe Capital Aircraft OperatingManual (Capital derivative ofthe Boeing 727 AFM). The PrincipalAvionics Inspector (Bill Steffey) for AMES cameto the Toledo Airport on 27 may2010 at my requestand I metwith him atthe aircraft involved. He asked representatives ofAMES to meet with us and view the damage. TheAMES representatives acknowledged the defects. All parties concludedthe same findings as I did and the AMES PAI electedto conduct his own investigation into AMES' involvement. All three aircraft had to be ferried to theAMES MRO for repairs. The Capital Director ofMaintenance hadto reposition to AMES atWilmington to directly supervise the MLG doors maintenance actions. All ofthe doors hadto be removed. Two doors were damagedbeyondrepair and hadtobe replaced. Structuralrepairs hadto be effected on all three aircraftanddoors. Hardware hadto be replaced that was missing on all doors to achieve properrigging. Wiring conduits hadto be replaced. The aircraftwere out ofserviceranging from 3 days to a week based onthe damage to each.
FrankV. Lipinski Principal MaintenanceInspector ASO CMO 29

# Federal Aviation Administration 

# Memorandum
Date: To:

From: Subject:

DearFrank: September28, 2010 Mr. FrankLipinski- Principle Maintenance Inspector Capital Cargo International Airlines Jack Gasche- ASI- Operations CM0-29 B-727 Walk around inspection Toledo Ohio

On May 25,2010, at 2140 local (0140Z) I started an en-route from Orlando, Florida (MCO) to Toledo, Ohio (TOL). When arriving in Toledo at Ol14local (0414 Z), onMay 26, I was metby FrankLipinski, Principal Maintenance Inspector (PMI) ofCapital Cargo International. Mr. Lipinski and Iperformed walk around inspections on a number ofCapital Cargo's B-727 aircraft. When doing a walk around on aircraftnumberN898AA we found thattheright main gear door was out ofalignment, and showedrubbing atthehinge. We found the sameproblem on aircraftN899AA, and the left gearpiano hinge pin was corning out. Inboth cases the gear door was damaged and binding onthe flap trackfairing cover. Laterthat day we found the same gear doorproblem on aircraftnumberN287SC. Also on aircraftN287SC the anti- skid conduitwas tied to the front ofthemain landing gearnottied to the side ofthe mainlanding gear. Capital Cargo International tookthese three aircraft out ofservice. I have been an Aviation safety Inspector (Operations) for eight years, and ampart ofthe Capital Cargo International CMO team. I am currently qualified onthe B-727, and have 12,000 flight hours ofexperience in the B-727 aircraft. Sine ly: i./ , 

### .':0.-L**/~VI._** ack Gasche Aviation Safety Inspector Operations CM0-29


### GOVERNMENT EXHIBIT 

# .DU.S. Department of Transportation Federal Aviation Administration

March 03, 2011 South Florida Certificate Management Office

CERTIFIED MAIL-RETURN RECEIPT REQUESTED File No. 201150290032 Brady Templeton, Accountable Manager Airborne Maintenance and Engineering Services 145 Hunter Drive Wilmington, Ohio 45177 Dear Mr. Templeton, 5950 Hazeltine National Dr. Suite 410 Orlando, FL. 32822

On or about May 25, 2010 The Principal Maintenance Inspector (PMI) and a Geographic Inspector from the Capital Cargo International Airlines (Capital) Certificate Management Team (GMT) conducted inspections on 8-727-200 series aircraft operated by Capital at the Toledo International Airport (TOL) in Toledo, Ohio. Three aircraft inspected had Main Landing Gear (MLG) Wing (Commonly known in the 8- 727 industry as "Flying" doors due to their design) doors that were improperly installed and incorrectly rigged on the aircraft which caused structural damage to the doors and associated mating surfaces ofthe aircraft. One aircraft had wiring harnesses associated with the Right hand (RH) brake anti-skid system improperly routed and damaged along with the doors improper installation. The three Capital aircraft affected by the improper maintenance actions were: N898AA, a 8-727-223, serial number 22014. N899AA, a 8-727-223, serial number22015. N287SC, a 8-727-2A1, serial number21345. The Capital PMI's reviews of the MLG maintenance records for the aircraft indicate that all three aircraft had received MLG replacements at the Airborne Maintenance and Engineering Services (AMES) facility at Wilmington, Ohio. AMES forms and work documents were used for recording the tasks and required inspections. The MLG replacements were conducted during heavy maintenance (C Check) visits at the AMES facility. The MLG replacement completion and inspection dates forthe return to service forthe aircraft were as follows: N899AA, 07/31/2009. N898AA, 09/29/2009 (LH) and 09/30/2009 (RH). N287SC, 03/22/2010. GOVERNMENT EXHIBIT 

# 13.The Capital PMI's findings indicated that AMES failed to follow the approved Capital B-727 Aircraft Maintenance Manual (AMM) directions forthe landing gear replacement actions as required by the AMES approved Repair Station Quality Manual (RSQM), current Federal Aviation Regulations, and authorizing Operations Specifications (Ops Specs) issued to AMES. 

### 2

Additionally, the Capital PMI's findings indicate that AMES failed to follow Capital and AMES approved Required Inspection Item (RII) procedures forthe return to service forthe aircraft following replacement of the aircraft landing gear which is contrary to the AMES approved RSQM, current Federal Aviation Regulations, and authorizing Ops Specs issued to AMES. These requirements are delineated in the Capital General Maintenance Manual (GMM), Capital approved CAMP called the Capital Maintenance Inspection Program (MIP), AMES RSQM, and current Federal Aviation Regulations. AMES adherence to its RSQM and Capital MIP is required by authorizing Ops Specs. AMES adherence to Rll programs is required by regulations. These actions are contrary to current Federal Aviation regulations specifically:

• The maintenance conducted on the landing gear replacements was not performed in accordance with the approved aircraft manufacturers or FAA approved manual or Instructions for Continued Airworthiness (Capital's MIP). Inspections revealed that the doors were not rigged properly, bushings and shims were missing from the doors attach fittings, bushings and shims were misplaced on the attach fittings, and the doors and airframe were damaged due to the doors binding. Capital's MIP requires Capital to utilize the Boeing B-727 Aircraft Maintenance Manual (AMM) maintained by Boeing (On myboeingfleet.com.) for the Capital B-727 fleet. The Capital MIP must be used by AMES. The AMM has complete instructions for door rigging, post landing gear replacement. Failure to utilize the approved AMM is contrary to CFR 14 part 43.13(a).
• The aircraft were released to service in an unairworthy condition and not inspected in accordance with the Capital MIP by AMES. AMES release to service forthe aircraft included maintenance and Rll certifications that were not correct or proper and not in accordance with the Capital Airworthiness Release requirements. This is contrary to CFR 14 part 121.709(b)(2)(i) and (ii).
• AMES improper maintenance and Rll actions on the aircraft were in violation ofthe Ops Specs authorized and issued to AMES. The Ops Specs issued to AMES require AMES to utilize its approved RSQM and the approved Capital MIP, AMM for the aircraft, and Rll program. This is contrary to CFR 14 part 145.5(a).
• The Capital MIP, AMM, and GMM was not followed for the maintenance actions for the gear door replacements/riggings and the anti skid conduit placement was not correct after the gear replacement on N287SC. In addition, the Rll designation for the landing gear replacements was apparently ignored based on the fact that all three aircraft had unairworthy installations ofall Flying Doors. This is contrary to CFR 14 part 145.205(a).• The AMES RSQM was not followed in the fact that AMES failed to ensure correct maintenance and inspection procedures were followed forthe MLG changes along with AMES not following procedures ofthe customer/air carrier's manuals as required by the RSQM. This is contrary to CFR 14 part 145.207(a). 

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• AMES failed to inspect the articles (MLG replacements and Flying Doors removals and reinstallations) that it performed maintenance on. In fact, the articles that AMES performed maintenance on received a certification of Rll but that certification was obviously improper, incorrect, orfalse. The maintenance tasks were accomplished improperly, the certifying inspectors for the actions did not ensure that the tasks were done properly, and the inspectors did not determine the articles to be airworthy. The maintenance releases for the articles was invalid. This is contrary to CFR 14 part 145.213(a),(b), (b)(1), and (b)(2). Due to the improper maintenance and inspection actions, Capital conducted 1,584 flights with the three aircraft in an unairworthy condition (reference Capital EIR # 201 OS0290120). N287SC had to make an emergency landing due to AMES improper Flying door maintenance (reference AMES EIR # 2010GL050030). The aircraft were removed from service and returned to AMES to effect repairs and return the aircraft to service properly. Two gear doors had to be replaced, structural components had to be repaired/replaced, missing/improperly positioned Flying door attaching fittings/hardware had to be installed/replaced, MLG wiring conduits had to be replaced, and the Capital Maintenance Department had to direct the repairs and the return to service actions. Currently this office is investigating this matter.
We wish to offer you an opportunity to discuss the incident in person or submit a written statement within 10 days following receipt ofthis letter. Your statement should contain all pertinent facts and any mitigating circumstances you believe may have a bearing on this incident. Ifwe do not hear from you within the specified time, we will process this matter without the benefit of your statement.

Frank V. Lipinski Principal Maintenance Inspector SO FLA CMO 29 Team D Orlando 407-812-3027Stevenson, Chris (FAA) From: Sent: To: Subject:
Bob, Stevenson, Chris (FAA) Monday, December 01, 2014 8:39AM 'Robert Silverberg' RE: Lipinski Deposition

I have been out ofthe office for the past two weeks, and most ofthe week before that, due to personal illness and then afamily emergency ultimately resulting in afuneral. I am back in the office for part oftoday (I have to go to the doctor again), and should be fully back tomorrow. As you may have noted, I did not submitthe response to your motion, and while I have been able to skim theJudge's Order, I have not had the opportunityto follow up on ityet. Iwill follow up with Inspector Lipinski, and get back with you. Christopher Stevenson Attorney Office ofthe Regional Counsel (404) 305-5200

From: Robert Silverberg [mailto:rsilverberg@sgbdc.com] Sent: Monday, November 24, 2014 4:46PM To: Stevenson, Chris (FAA) Cc: JeffJohnson Subject: Lipinski Deposition Chris, In view ofthe Judge's Order dated Nov. 21st, please provide me with the dates when Mr. Lipinski would be available to sit for his deposition between now and the end of December as ordered by the Judge. Once I have the dates we can discuss logistics. Bob

PRIVILEGED AND CONFIDENTIAL The information transmitted is intended only for the person or entity to which it is addressed and is (1) subject to attorneyclient privilege; (2) attorney work product; or (3) confidential. Any review, retransmission, dissemination or other use of, or taking of any action in reliance upon this information by persons or entities other than the intended recipient is unauthorized and strictly prohibited. Ifyou received this in error, please contact the sender and delete the material from any computer. RobertP. Silverberg Silverberg, Goldman & Bikoff, L.L.P. 1101 30th Street N. W Suite 120 Washington, D. C. 20007 rsi/verberg@sgbdc.com direct line 202-944-3304 fax 202-944-3306 mobile 301-922-8895

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