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## 0 UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC

IN THE MATTER OF: ELITE AIR, Inc., Respondent.
Wednesday, July 25, 2012 FDMS No. FAA-2011-1125

The above-entitled matter came on for hearing, pursuant to notice, at 10:00 a.m. BEFORE: THE HONORABLE J.E. SULLIVAN, Administrative Law Judge 

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• APPEARANCES:
On Behalf of the Respondent, Elite Air Inc.: B. GRAY GIBBS President Elite Air, Inc. 100 Second Avenue South Suite 101-S St. Petersburg, FL 33701 (727) 896-5880

On Behalf of the Complainant,

Federal Aviation Administration: RYAN M. LANDERS, ESQ. Office of the Regional Counsel AEA-7 Southern Region Federal Aviation Administration P.O. Box 20636 Atlanta, GA 30320 (404) 305-5200
ALSO PRESENT:

(202) 234-4433 CODY L. SMITH, ESQ., DOT/OH MARK SOTO, DOT/OH

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1 P-R-0-C-E-E-D-I-N-G-S 2 (9:58a.m.) 3 JUDGE SULLIVAN: We're on the 4 record in the matter of Elite Air Inc. This 5 is docket number FAA-2011-0204, if I recall 6 correctly. Oh, I'm sorry. I have the wrong 7 docket number. Excuse me. Docket number FAA8 2011-1125. 9 Today is Wednesday, July 25, 2012 10 and the parties have convened for a summary 11 judgement oral argument proceeding. The 12 attorney for the FAA is Mr. Landers, and he's 13 appearing by telephone. The attorney for the 14 Respondent, Elite Air Inc., is B. Gray Gibbs, 15 and he is also appearing by telephone. 16 In addition, appearing at the 17 Office of Hearings as observers only are 18 attorney Cody L. Smith and law student intern 19 Mark Soto. Counsel, good morning, again. Why 20 don't we do this, since we have crossed 21 motions on the motion for summary judgement, 22 I'll simply note for both of you that I've 

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1 read all of your materials and I have a lot of 2 questions for both of you. 3 So since the FAA filed its motion 4 first, I'm going to start with you, Mr. 5 Landers. 6 MR. LANDERS: Okay. 7 JUDGE SULLIVAN: My question to 8 you is, I'll always want to give people an 9 opportunity to make whatever argument they 10 want to make. Do you want to do a five-minute 11 argument before I ask you questions or do you 12 want to hear the questions first? 13 MR. LANDERS: I'll do the 14 questions first, Your Honor. 15 JUDGE SULLIVAN: Okay. Then let 16 me start with this, in your motion for summary 17 judgement, it appears to me that you are 18 actually seeking a partial summary judgement 19 motion, and I say that because, it appeared to 20 me, from all of the materials that you filed, 21 both in your own motion and in your response 22 to the Respondent's cross motion, that you NEAL R. GROSS COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com (202) 234-4433

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• 5 1 were focused, really, no a finding regarding 2 the alleged violation. 3 There was no discussion that I saw 4 from the FAA regarding how you had reached the 5 penalty and what factors you had taken into 6 account to come up with the figure that you 7 had proposed to the Respondent, which, 8 according to my notes, is $5775. 9 MR. LANDERS: That's correct, Your 10 Honor. We're only seeking summary judgement 11 on the underlying violations, with the hearing 12 to be held solely on sanctions so we can 13 explain that to you there. 14 JUDGE SULLIVAN: Okay. In the 15 future, just so that you know, I welcome 16 having motions for summary judgement on all 17 phases of a case if you think you can do it by 18 summary judgement motion. And the reason why 19 I say that is because, you're talking about 20 spending a lot of government money sending 21 yourself, me, a court reporter, et cetera, to 22 a location.**ME~l**

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1 And if there is reasonable grounds 2 that you have to provide all of that 3 information within your summary judgement 4 materials, I encourage you to do that. That's 5 not to say that I saw anything in this case to 6 support that, but just so that you know in the 7 future. 8 MR. LANDERS : Yes, Your Honor. 9 Normally I would have, but I felt in this one 10 I anticipated what Mr. Gibbs' response would 11 be and I thought it would be very convoluted 12 to try to explain everything in writing, which 13 is the reason I did not file it in this 14 particular case. 15 JUDGE SULLIVAN: Okay. And I 16 certainly would defer to your opinion as to 17 how you want to present your case. I just 18 have had people appear before me on other 19 summaryjudgement motions who express surprise 20 that that could be part of a summary judgement 21 motion, so I'm trying to alert everybody who 22 appears before me that it can, in fact, be 

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1 part of it. 2 MR. LANDERS: I appreciate that 3 and I will let the rest of my office know that 4 as well. 5 JUDGE SULLIVAN: Okay. Thank you. 6 Let's talk, then, about your exhibits, and I'm 7 going to focus right now on FAA Exhibits 1 8 through 3 , and then 5 through 8 . So accepting 9 out, for the moment, Exhibit 4, which is the 10 statement by Mr. Meenan. 11 MR. LANDERS: Yes, ma'am. 12 JUDGE SULLIVAN: In terms of 13 Exhibits 1 through 3, let's start with those, 14 how do you think they could be admissible at 15 trial? 16 MR. LANDERS: I will be calling 17 the inspector. The 1 through 3, the Elite Air 18 manual, is held at the FSDO as well. They 19 maintain a copy. 20 JUDGE SULLIVAN: I'm sorry. At 21 the what as well? 22 MR
. LANDERS : The FSDO, sorry.**ME~l**

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1 That's the Flight Standards District Office. 2 That's the office that the inspectors work out 3 

### of. 4 JUDGE SULLIVAN: So essentially, 5 you're saying that the FAA has custody at a 6 certain place, available to Mr. Meenan, to 7 review the general operations manual that 8 Elite Air 1s supposedly using. 9 MR. LANDERS: That's correct, Your 10 Honor. 11 JUDGE SULLIVAN: And then in terms 12 of Exhibits 5 through 8, what about those? 13 How would those be admissible? 14 MR. LANDERS : Inspector Meenan 15 will also testify that when he requested the 16 documents from Elite Air, these are what were 17 provided to him. 18 JUDGE SULLIVAN: And when you say 19 when he requested, are you talking about on or 20 about September 9th, 2010 when the safety 21 inspection occurred or at some other time? 22 MR. LANDERS: Yes, ma'am. That's
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• 9 1 my understanding he requested them that day. 2 I don't recall off the top of my head when he 3 actually received them; if it was that day or 4 a few days later. 5 JUDGE SULLIVAN: Now let's talk, 6 then, about the Meenan affidavit, or I'm 7 sorry, I should say statement. This is FAA 8 Exhibit 4. This statement, obviously, does 9 not purport to be a declaration or an 10 affidavit and in your reply materials to the 11 Respondent's challenge to the admissibilityof 12 this statement, it appeared as though you 13 would have conceded that it is not, on its 14 face, admissible. 15 MR. LANDERS: Correct, Your Honor. 16 JUDGE SULLIVAN: I'm wondering, if 17 you concede on its face that it's not 18 admissible, is there a way, in your opinion, 19 to put it in admissible format for the 20 purposes of trial? The reason I ask that is 21 because, I'm supposed to be looking at this 22 evidence, not only to see whether it's 

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• 10 1 admissible on its face, but also to see 2 whether it could be made admissible for the 3 purposes of trial. 4 MR. LANDERS: Yes, at trial, Your 5 Honor, I would just have Inspector Meenan 6 testify as to what he actually did from 7 firsthand knowledge. 8 JUDGE SULLIVAN: Is there any 9 particular reason why he did not, as part of 10 this motion, simply have Inspector Meenan do 11 a declaration thatprovidedpersonal knowledge 12 regarding the authenticity of Exhibits 1 13 through 3 and 5 through 8, as well as a 14 potential admissible statement from him in 15 writing? 16 MR. LANDERS: Well, with 1 through 17 3, originally I didn't because it was my 18 understanding that Respondent was admitting, 19 based on their answer to those, so I just 20 provided that so that you would have what they 21 were actually admitting to. 22 Once Respondent came back and


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1 replied that they weren't authenticated as 2 well, that's when I submitted the 3 authenticated copy with the stamp on the back 4 that Inspector Meenan certified that they were 5 true and accurate copies. 6 As far as 6 through 8, I felt that 7 they spoke for themselves, that all Mr. Meenan 8 would be providing would be, basically saying, 9 these are what they gave to me, which the 10 stamp on the back are what his certification 11 already said. So that's the reason I did not 12 feel the need to get a separate writing from 13 Inspector Meenan. 14 JUDGE SULLIVAN: Okay. Let's talk 15 just a little bit about the certification that 16 Mr. Meenan is attempting to do. Just so that 17 you know, on the copies of your materials that 18 I received that was filed with the Office of 19 Hearings, in your responsive materials, where 20 you assert that you had provided authenticated 21 materials because of Mr. Meenan's 22 certification?**ME~l**

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12 1 MR. LANDERS: Yes, ma'am. 2 JUDGE SULLIVAN: There was no 3 certification contained in any of the 4 materials that I received. 5 MR. LANDERS: It should have been 6 on the back of the materials. 7 JUDGE SULLIVAN: Yes, well, I know B that you're saying to me that it should have 9 been there, but it wasn't. So it may be that 10 there was material that you filed with the 11 hearing docket that has that additional 12 material on it, but for my copies, and I'm 13 just going to double-check them while I have 14 you on the phone. 15 MR
. LANDERS : Okay. For the 6 16 through 8, it should have been on the back, 17 and the reason it's on the back is that's how 18 he did it. He did it two-sided. 19 JUDGE SULLIVAN: Yes, I'm just 20 talking about Exhibits 1 through 3 at this 21 point. 22 MR. LANDERS: Oh, correct, that 

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1 they weren't on the original. I didn't feel 2 like they needed to be since it was my 3 understanding that Respondent was admitting. 4 And the reply brief that I filed after it was 5 my understanding that they were no longer 6 admitting to the specifics, it should have 7 been in the copy provided in response to the 8 reply brief. 9 JUDGE SULLIVAN: Yes, and I'm 10 saying to you, unequivocally, as I look at the 11 materials I received in the FAA reply, that no 12 such documentation exists. There is nothing 13 on the back of any of this material. So 14 whoever it is that did your copying missed 15 something that I think you should know about. 16 There's no certification on anything. 17 I do have the certification stamp 18 for Exhibits 6, 7, and 8 in your original 19 materials, but that's the only thing that I 20 have. 21 MR. LANDERS: Okay. Well, then my 22 assistant must have ignored my instruction to 

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1 copy front and back when she sent it. She 2 made copies for everybody. 3 JUDGE SULLIVAN: Yes, so let's 4 talk about the certification that you have 5 from Mr. Meenan. Can you identify for me, 6 under the evidentiary rule, how this 7 certification from an FAA inspector could be 8 meritorious to authenticate these documents; 9 any of them? 10 MR. LANDERS: Well, he is swearing 11 that they're true and accurate copies of the 12 forms that were held, so maybe my 13 understanding of what's required by that 14 certification is incorrect. But it was my 15 understanding, based on previous cases that 16 this office has handled, that this stamp, 17 which is what we require all of our inspectors 18 to do for authentication purposes, is 19 sufficient. 20 JUDGE SULLIVAN: Okay. And when 21 you say that you've used this stamp before in 22 hearings at this office, are you saying that
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15 1 you've used it without testimonial statements 2 by declaration or affidavit from the 3 certifying part, that the certification stamp 4 on the back of a document has been sufficient 5 in its own? 6 MR. LANDERS: I cannot speak for 7 your office, for NTSB, yes ma'am. This is the 8 first time I've gone through this process with 9 your office. 10 JUDGE SULLIVAN: Okay. Well, let 11 me tell you what I saw in this and this is for 12 your edification in terms of how I look at 13 things. I certainly can accept certification 14 of documents, but then I look to the rules of 15 evidence to see whether it complies with the 16 exceptions that are listed, either under the 17 800 series or the 900 series. 18 So when I looked at that, the 19 certification that Mr. Meenan provided, my 20 first question was, is he certifying something 21 of which he is the custodian of records? 22 Because if that's so, then clearly there might 

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• 16 1 be admissibility under 803 or 902. 2 But it didn't appear to me, from 3 either the statement, which could be 4 admissible by the time you got to trial, or 5 the certification that there was any assertion 6 that Mr. Meenan was a custodian, either of 7 business records that are kept in the regular 8 course of business, or of documents that are 9 kept as a record under a public records 10 exception. 11 So it seemed to me to fall short 12 of where you could reasonably assert with a 13 challenge in the air that Mr. Meenan had the 14 ability to certify these kinds of records. 15 So then I looked at the statement 16 and I said, clearly the statement is not 17 dated, it doesn't identify him as an employee 18 of the FAA, and it doesn't identify anything 19 about where he saw these records, where he got 20 them, where he compared them, how he has the 21 ability, in any way, shape, or form, to 22 certify that the records that you're providing**ME~l ~.** 

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1 me are, in fact, authentic. 2 MR. LANDERS: Okay. 3 JUDGE SULLIVAN: So I would 4 suggest to you that when you look at the 5 evidentiary rules, and I'm going to go to them 6 so that I quote the ones to you that I saw, I 7 looked specifically at ER-902, Subsection 11. 8 Do you have your rulebook with you by chance, 9 sir? 10 MR
. LANDERS : I do not have it 11 front of me. No, ma'am
. 12 JUDGE SULLIVAN: I thought perhaps 13 you were trying to do it under ER-902, 14 Subsection 11, but I didn't see it. I then 15 looked to 803, Subsection 6, that also didn't 16 work. I looked at 902, Subsection 4, that 17 didn't work. I looked at 803, Subsection 8, 18 that didn't work. 19 Now, clearly, duplicates of 20 originals can be admissible under 1003, but 21 you still need the addition of authenticity, 22 and I didn't have that authenticity link,
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1 either in the certification or in the 2 statement, which is FAA Exhibit Number 4, 3 which is why I think the Respondent was really 4 pounding the FAA's case on. 5 Essentially saying, over and over 6 again, as you know, these documents are not 7 admissible on their face, we object to them, 8 and so forth. So I think I have a suggested 9 method of addressing this for you, but I just 10 wanted to see if there was something that I 11 was missing, if there was any kind of 12 evidentiary rule that I should have looked at 13 and didn't. 14 MR. LANDERS: No, Your Honor, like 15 I said, I was just going based on past 16 practice with NTSB where they have accepted 17 this. And so if, under your reading of the 18 rule, it's different than theirs, I'll defer 19 to yours, since you're the judge in this case. 20 JUDGE SULLIVAN: Well, I'm always 21 happy to be educated by counsel. I mean, I 22 live for the moment when you can tell me
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1 something that helps me in my own practice. 2 I do. But I looked through this fairly 3 carefully and I could not see where I could 4 find the link between an FAA inspector and his 5 ability to authenticate records from the 6 Respondent. 7 And I think the Respondent has a 8 right to hold the FAA to its burden of proof. 9 MR. LANDERS : Yes, I agree that 10 they have the right to hold us to our burden, 11 Your Honor
. 12 JUDGE SULLIVAN: Let me ask you 13 this, do you have any particular five-minute 14 argument that you would like to make at this 15 point before I turn to Mr. Gibbs to ask him 16 some questions? 17 MR
. LANDERS : I guess based on 18 your finding that these are not authenticated, 19 then our whole motion goes out the window, so 20 21 JUDGE SULLIVAN: Well, not 22 necessarily, sir.
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1 MR. LANDERS: Okay. Well, then, 2 based on that, I guess, if you're still going 3 to consider then that, if you read what's 4 required by their manual, it clearly requires 5 them to fill in these blanks. Looking at the 6 forms that they provided to Inspector Meenan, 7 they did not fill in those blanks. That's our 8 whole case, Your Honor. 9 JUDGE SULLIVAN: Well, let me ask 10 you this, there's been a variety of different 11 allegations that the Respondent has raised 12 regarding your case in chief, particularly, 13 there's been arguments that you can't prove 14 this, that, in reality, this is simply a form 15 that they failed to fill out, but that doesn't 16 mean they didn't actually do the work, and so 17 forth. 18 Would you care to address any of 19 those arguments? 20 MR. LANDERS: Sure, Your Honor. 21 We are not alleging in the complaint, and 22 we're not attempting to prove, that they
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1 didn't actually do the inspections, but their 2 manual requires them to enter the inspection 3 due dates and times on the form. 4 The reason that the FAA requires 5 this in the manual is for public safety. We 6 want to make sure that they're double-checking 7 themselves, along with every other airline, so 8 that safety is not impaired if a due date is 9 overflown, or anything like that. It, 10 obviously, endangers the flying public. 11 So the reason that this is 12 required is as a, basically, checks and 13 balances. The pilot needs to make sure that 14 everything is fine before they take off, just 15 as the maintenance department needs to make 16 sure everything is fine before they take off. 17 Whether or not the pilot in this 18 case actually did it, isn't an issue. The 19 whole issue is their maintenance manual 20 requires it to be written. The reason for 21 this is, the FAA functions on documents. We 22 review documents, obviously, we're not in
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• 22 1 every flight, and make sure everything goes 2 correctly. 3 So when we're doing inspections to 4 ensure the safety of the public, we're relying 5 on the documents that airlines, or pilots, 6 depending on the case, in this case, airlines, 7 provide to us. If there's missing 8 information, we cannot confirm that all 9 safety-required checks are being conducted. 10 And so that's the reason the 11 blanks are required to be filled in. It's for 12 us, when we go back and do reviews, to make 13 sure everything is being followed and that the 14 flying public is safe. Without putting that 15 information there, we cannot do our job in 16 double-checking to make sure that the airline, 17 in this case, Respondent, is fully complying 18 with all the requirements. 19 JUDGE SULLIVAN: Okay. Let me ask 20 you something about your Exhibit Number 9, 21 which I believe you filed as part of your 22 reply.
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1 MR. LANDERS: Right, because 2 Respondent references it. 3 JUDGE SULLIVAN: Actually, I think 4 that's in the Respondent's response. That's 5 1n your response to the Respondent's motion, 6 so I'll address that later. 7 MR. LANDERS: Okay. 8 JUDGE SULLIVAN: Anything else 9 that you'd like to add in terms of your 10 argument and your motion in chief? 11 MR. LANDERS: No, Your Honor. As 12 I Said, the whole violation is just the 13 failure to fill in the blocks, which is what

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- well, the violation is not complying with 15 their maintenance manual, or excuse me, their 16 general operations manual, whichrequired them 17 to fill in the blocks. They did not do it, 18 therefore, they violated their manual. 19 That's the basis of our argument. 20 JUDGE SULLIVAN: Okay. Thank you

·21 very much. Mr. Gibbs, let me ask you, do you 22 want to make a five-minute oral argument first
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1 or do you want to address the Court's 2 questions first? It's your choice. 3 MR. GIBBS: Good morning, Judge 4 Sullivan. I am Gray Gibbs for the Respondent. 5 I don't really want to make an oral argument. 6 I think that our motions, and replies, and all 7 the pleadings pretty much kept it

-- I will, 8 I guess, kind of, in lieu of, or as an, oral 9 argument, I would just like to follow-up on 10 some of the questions you've already asked of 11 Mr. Landers
. 12 And, you know, first, I guess I 13 would like to comment that, you know, Mr. 14 Landers, the manual that requires the blanks 15 to be filled and that the pilot double-check 16 the maintenance department, that's not an FAA 17 requirement. Mr. Landers seemed to suggest it 18 was. That's why he says, that's why the FAA 19 requires it. Well, they don't. 20 You know, that's our manual a.nd 21 we, you know, in an effort to, you know, have 22 built-in suspenders and not overfly
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1 inspections, you know, we felt that that was 2 a good idea to put in the manual and we think 3 our pilots complied with that. 4 And in fact, Mr. Landers admits 5 that they're not alleging that the PIC did not 6 do exactly what our manual called for, which 7 was review the status sheet that maintenance 8 hadprepared, where the maintenance department 9 put down the next inspection is due, and then 10 the pilot is supposed to compare that status 11 sheet with the times on the airplane, and then 12 fill in the blanks. 13 They're not alleging he didn't do 14 all of those things, substantively, and I 15 think that is so important that they're not 16 alleging that. And in fact, the reason 17 they're not alleging it is because he did do 18 those things
. And they found that during 19 their investigation. 20 JUDGE SULLIVAN: Sorry to 21 interrupt you, sir. Let me ask you a 22 question, because this goes to one of the
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1 disputes between the two of you. According to 2 FAA Exhibit Number 1, which is the 3 airworthiness information document that 4 purportedly comes from Elite .Air's General 5 Operations Manual. 6 It directs and requires the pilot 7 in command to enter into the appropriate 8 blocks on the aircraft flight maintenance 9 sheet, which is EAI-301, the inspection due 10 dates and times. 11 MR. GIBBS: Yes
. 12 JUDGE SULLIVAN: And according to 13 the, let me take a look, FAA Exhibit Number 2, 14 which again, is purportedly from Respondent's 15 General Operations Manual, this provides a 16 sample of the EAI-301 aircraft flight manifest 17 form and then specific instructions to the 18 pilot in command, and other crew members for 19 Respondent, about how to fill those out. 20 So assuming that this 21 documentation comes in and assuming that FAA 22 Exhibit Number 3 also comes in, it would
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• 27 1 appear to me that there is a contractual 2 agreement between the Respondent and the FAA 3 that the Respondent will comply fully with its 4 manual requirements as part of its carrier 5 certificate. 6 And I looked at Exhibit Number 3 7 provided by the FAA, where it is identified as 8 the FAA's operations specifications for Elite 9 Air, and it says on the first page that, "The 10 essential elements of operational control must 11 be included or described, 11 and then they say, 12 essentially, "as described in Section A of 13 Elite's General Operations Manual." 14 That, to me, indicates that the 15 parties have reached an agreement that part of 16 the carrier certificate mandate is to comply 17 fully with its rules and regulations in its 18 general operations manual, which then, I 19 think, puts your client in the position of 20 saying, I either comply with this or I don't. 21 So are you saying to me that 22 Exhibit Number 3, if it comes in on behalf of· 

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1 the FAA's case in chief, does not require your 2 client to comply with its own general 3 operations manual as part of its carrier 4 certificate? 5 MR. GIBBS: No, ma'am. I'm not 6 saying that. I think I acknowledge that the 7 operator has to comply with their general 8 operations manual; however, I would like to go 9 back to Exhibit 1 and point out the exact 10 language of Paragraph Number 1 under the 11 review of the status suit
. 12 The exact language says, "Note the 13 date and the aircraft time and compare them 14 with the inspectiondue dates and times listed 15 in the Elite Air Inc. status sheet (EAI-106), 16 which is maintained in the aircraft flight 17 logbook." And then it says, "These inspection 18 due dates and times shall be entered by the 19 PIC." 20 Okay. Well, Your Honor, the 21 status sheet has not been submitted in 22 evidence and, in fact, it has not been
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' 29 1 submitted in, sort of, their motion and 2 summary judgement, and how can we determine if 3 these inspectiondue dates, specificallythose 4 from the status sheet, were entered by the 5 PIC? 6 Because if the status
-- you would 7 have to have the status sheet to find out what 8 he had to enter. It doesn't say, every 9 inspection due date on that airplane for ever 10 and ever has to be entered by the PIC. It 11 says, these inspectiondue dates, specifically 12 referring to the inspection due dates that are 13 on the status sheet from maintenance. 14 So if maintenance that the next 15 inspection is a VOR check, and that's all they 16 put on the status sheet, that's all the pilot 17 has to check. He has to compare it to the 18 status sheet. And I don't acknowledge at all 19 that the Government has come close to proving 20 that he did not enter, on the logs, the data 21 from the status sheets, and I don't think they 22 can prove that.**t\C.~l**

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• 30
1 And that, of course, presupposes 2 that, you know, copies of copies, that we 3 don't even know where they came from, come 4 into evidence, and hopefully we'll talk about 5 that in a minute, but to go back to this 6 original point on Exhibits 1, 2, and 3, if the 7 maintenance gives them the status sheet that 8 says the next inspection is a time, and that's 9 all they enter on the status sheet, then 10 that's all the pilot has to put down. 11 JUDGE SULLIVAN: So essentially 12 you're saying, and correct me if I'm wrong as 13 I summarize what I think I just heard, that if 14 the EAI-106 status sheet does not contain 15 dertain information, then the pilot is not 16 required to enter that information into the 17 aircraft flight manifest, which is form EAI18 301. 19 MR. GIBBS: That's the way I read 20 Number 1. It says, "These inspection due 21 dates and times shall be entered by the PIC." 22 These inspection due dates and times refers to
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1 the status sheet. 2 JUDGE SULLIVAN: How do you 3 reconcile that then, Counsel, with Government 4 Exhibit Number 2, which is a very detailed 5 instruction sheet for the completion of the 6 EAI-301, which is, as we've been talking 7 about, the aircraft flight manifest that 8 appears to be Exhibit 6, 7, and 8 as well? 9 MR. GIBBS: Well 10 JUDGE SULLIVAN: Let me just 11 finish the question. On Exhibit Number 2, 12 Page 2, there is the beginning of instructions 13 for completion of the EAI-301, and then on the 14 second page of these detailed instructions, 15 which number 1 through 52, it talks about, in 16 Items 43, 44, and 45, the need to enter times 17 in hours and tenths for the next time limit 18 item, for the next cycle limit item, and then 19 for the next date limited, and so forth. 20 So how do you reconcile your 21 argument regarding the interpretation of FAA 22 Exhibit 1 with the plain language of FAA
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1 Exhibit 2? 2 MR. GIBBS: Well, I mean, I 3 reconcile that to the extent that they are 4 supposed to enter those times as required by 5 43, 44, and 45 if they come from the status 6 sheet. In fact, 44, for example, says, "Enter 7 the number of cycles in whole numbers for the 8 next cycle's limited item due from the status 9 sheet; 106." 10 So if 106 doesn't have that on 11 there, he doesn't enter it. Number 45, "Enter 12 the dates of the next date limited item due 13 from the status sheet." So if the status 14 sheet doesn't have it on there, he doesn't 15 enter it. 16 JUDGE SULLIVAN: Well, following 17 that line of thought, let's assume that you 18 have a maintenance crew member who only 19 completes 50 percent of the status sheet on a 20 regular basis, does that, therefore, exempt 21 the pilot in command from entering any of that 22 data and then flying anyway?
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• 33 1 MR. GIBBS: Well, Your Honor, I 2 think for the purpose of the entire process is 3 for the pilots to backup maintenance and make 4 sure that they're not going to overfly the 5 next due maintenance itern. And if maintenance 6 determines that there is a time-limited 7 maintenance

-- or say, a cycle. 8 Let's say that the next 9 maintenance item is a cycle-limited one that 10 is due in three cycles. If they put that down 11 as the next limited andmaintenance determines 12 the other ones aren't anywhere near close and 13 that's what they've elected to do, then the 14 pilot has done his job if he has compared the 15 status sheet and determined that the next 16 inspection item is not going to be overflown. 17 And that's the way -- 18 JUDGE SULLIVAN: Go ahead. 19 MR. GIBBS: And so, I mean, 20 regardless, without having the status sheet in 21 front of them, how can you determine that the 22 pilot didn't literally comply with the literal
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• 34
1 language that says he would compare it with 2 the status sheet and these inspection due 3 dates, those from the status sheet, will be 4 entered? 5 I mean, that's what he did. Now, 6 whether or not maintenance was correct, is not 7 before this court. I mean, you know, we 8 haven't even gotten into the status sheets, 9 and what they were supposed to put, and 10 whether they have to put them all, but that is 11 beyond this case. 12 This case is, did the pilot do 13 what he was required to do on those flights? 14 JUDGE SULLIVAN: Well, let me ask 15 you this, according to FAA Exhibit 2, and the 16 instructions that are part of that three-page 17 exhibit, the pilot is supposed to put down all 18 of that information in the aircraft flight 19 manifest form identified as EAI-301. 20 MR. GIBBS: Well, Your Honor, with 21 all due respect, I mean, I'm reading it and it 22 says, 11from the status sheet. 11 So I mean, if
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• 35
1 it's not on the status sheet, how can you put 2 it down? I mean, it says he gets it from the 3 status sheet. I mean, you know, whether or 4 not the language of the two pages of our ops 5 manual is inartfully drawn and whether or not 6 there is some ambiguity there, I mean, I don't 7 know. 8 I do know that both of them refer 9 to the status sheet and the status sheet is 10 not even in evidence. 11 JUDGE SULLIVAN: And let's talk 12 about that in terms of safety issues. So if 13 this information is perpetually missing from 14 the status sheet and the PIC, the pilot in 15 command, never enters the data, your argument 16 is, essentially, they're still in compliance 17 with the FAA safety regulations, or that it 18 doesn't matter, or that it's a de minimus 19 item? 20 I mean, where is it 21 MR. GIBBS: Well, I mean, first, 22 the FAA doesn't require a status sheet. The
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• 36 1 FAA does not require the pilot to double--check 2 it. None of those things are 135, or Part 91, 3 to my knowledge. Those are simply our manual. 4 And so if, and I don't acknowledge at all that 5 Elite Air's maintenance people are not filling 6 out the status sheet correctly. 7 All I'm saying is, is that, you 8 know, the evidence before us is, did the pilot 9 do what he was supposed to do? And if he took 10 the status sheet and he put down the 11 information from that, he did his job. So I 12 don't acknowledge at all that Elite Air is 13 perpetually not filling out the status sheet, 14 but if your question is, if they were, would 15 that be violating some regs or even being 16 unsafe? 17 And the answer is, that's just not 18 required of the 135. So my only question 19 there would be, did they comply with their 20 manual? And frankly, the status sheet, again, 21 is to determine what the next inspections are 22 due.
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• 37
1 If your next time-limited is a 2 year away, and your next cycle's is three 3 away, and the maintenance department 4 determined that the relevant inspection that 5 we need to keep an eye on is cycles, then they 6 are trying to
-- you know, if they put that 7 down, that might very well be

-- I mean, that 8 would be to avoid overflying the next 9 inspection that is going to become due. 10 JUDGE SULLIVAN: Okay. 11 MR. GIBBS: But regardless, Judge, 12 I mean, again, I would like to go back and 13 focus on what the crew did, and that is, if 14 they took the status sheet and filled it out. 15 And I will point out, you know, for your 16 edification, I mean, I certainly don't think 17 that these are authenticated, anywhere near 18 it, but if you look at the actual inspection, 19 if you look at Exhibits

-- well, if you look 20 at Exhibit, for example, 7. I'm looking at 21 them right now. 22 JUDGE SULLIVAN: You're talking
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• 38 1 about the FAA Exhibit 7? 2 MR. GIBBS: Yes, to their original 3 motion. 4 JUDGE SULLIVAN: Okay. 5 MR. GIBBS: All right. On next 6 time-limited, they wrote in, 7150. 7 JUDGE SULLIVAN: Correct. 8 MR. GIBBS: You know, so they did 9 put in an inspection, which would suggest that 10 they were doing exactly what they were 11 supposed to be trying to do. And on Number 8, 12 you know, they got in the VOR inspection as 13 the next one. I mean, on one of them they did 14 write in a next inspection date. If that's 15 what the status sheet had, then they complied 16 fully. 17 JUDGE SULLIVAN: Okay. 18 MR. GIBBS: Now, without the 19 status sheet, I just don't think the 20 Government can prove their case. 21 JUDGE SULLIVAN: Okay. Let me ask 22 you this, because I have some other questions
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• 39 1 for you, and maybe we should go to those next. 2 You've submitted a bunch of material that's 3 attached to your motion for summary judgement 4 and you didn't identify it specifically as 5 exhibits, but you did ask that it be 6 considered in support of your motion for 7 summary judgement. 8 And it sounded to me, and I just 9 want to make sure that I know, your motion for 10 summary judgement is that the case, or the 11 violation, should be dismissed, or in the 12 alternative, if a violation is found, that the 13 amount of money should be either lowered or 14 completely waived. 15 What form of relief are you 16 actually seeking in your cross-motion for 17 summary judgement? 18 MR. GIBBS: Well, Your Honor, in 19 our motion for summary judgement, we are 20 seeking that you rule in our favor because of 21 the evidentiary issues that we just talked 22 about. I mean, without the status sheet and
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• 40 1 without the authenticated flight manifest, 2 Exhibits 6 I 7, and 8 to their original motion, 3 without those, I mean, Mr. Landers admits that 4 this is a fill-in-the-blank issue. 5 This is not a substantive issue, 6 so it is a fill-in-the-blank issue. So, 7 obviously, you've got to have authenticated, 8 admissible manifests, you know, to even decide 9 whether or not the blanks were appropriately 10 filled in. And they've not even identified, 11 and can't identify, where they got those 12 documents. 13 And I can tell you, Your Honor, I 14 mean, I too looked at the rules of evidence, 15 you know, and I looked at Rule 1002, which 16 says 1 "An original writing is required in 17 order to prove its contents unless those rules 18 or a federal statute provides otherwise." 19 And then, of course, Rule 1003 20 right after it talks about, "A duplicate is 21 admissible to the same extent as an original 22 unless a genuine question is raised about the
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• 41
1 original's authenticity or the circumstances 2 make it unfair to admit the duplicate. 11 3 You know, Your Honor, this is not 4 even a duplicate of an original. This is a 5 copy from an unknown source, but the original, 6 as required by Elite Air's Manual, and as 7 required by FAR-135.63 (d) , the original of 8 that flight manifest was retained by the 9 director of operations at the operations 10 office of Elite Air. 11 And they didn't get a copy of the 12 original from them. They never submitted that 13 request. And they could have alleged if they 14 did. So, Your Honor, and I might add one more 15 note, I mean, the committee notes on Rule 16 1003, see, the committee approved this rule in 17 the form submitted by the court with the 18 expectation that the courts would be liberal 19 in deciding that, "a genuine question is 20 raised as to the authenticity of the 21 original. 11 22 So, I mean, Your Honor

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• 42 1 JUDGE SULLIVAN: I'm going to 2 interrupt you, sir. You basically have just 3 quoted from the 1974 enactment history under

- 4 5 MR. GIBBS: Right. 6 JUDGE SULLIVAN: Rule 1003. 7 Okay. Go ahead. 8 MR. GIBBS: Yes, ma'am. And, you 9 know, so, I mean, in this case, the 10 Government's entire case is dependent upon 11 those forms because they admit this is just a 12 fill-in-the-blank issue. This is not whether 13 or not they substantively failed to do it, but 14 a fill-in-the-blank issue. 15 So, obviously, it has to be an 16 admissible form that the blank didn't get 17 filled in before the Government can possibly 18 win. And given the fact that they can't 19 identify, they haven't even identified the 20 source of the document, when it was copied, 21 where the copy came from, certainly, you know, 22 a genuine question is raised as to the
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• 43 1 authenticity of these copies. 2 I mean, are these copies that were 3 made before they even, you know, completed the 4 form? When were these copies made? Because, 5 if you remember, the copies that Mr. Meenan 6 received from somebody are from copies. So 7 you got to go back one generation of copies 8 and then the question is, well, when was that 9 copy made? 10 Was it made before they even 11 closed out the flight? Because they may have 12 finished the form and done it properly, you 13 know? So there is clearly I mean, Judge 14 Sullivan, if those documents are admissible, 15 any disgruntled pilot could take a copy of a 16 flight manifest, erase a form, and send it 17 into the FAA and say, hey, you know, when I 18 was there they routinely made me fill these 19 blanks in. 20 And if that copy would become 21 admissible, then the operators would be 22 subject to any disgruntled employee just
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• 44
1 sending in copies of copies. 2 JUDGE SULLIVAN: Well, and I think 3 I've covered some of my concerns with Mr. 4 Landers already regarding the authenticity. 5 Let me ask you this, Mr. Gibbs, you submitted, 6 as part of your motion for summary judgement, 7 ·essentially, 19 different documents and you 8 asked the Court to consider them. Do you 9 recall that in your motion? 10 MR. GIBBS: Judge, I don't. 11 JUDGE SULLIVAN: I have before me 12 the Respondent's motion for summary judgement 13 that you filed with this office on June 15, 14 2012. 15 MR. GIBBS: Right. 16 JUDGE SULLIVAN: Does that sound 17 familiar? Okay. 18 MR. GIBBS: I've got that in front 19 of me, yes. 20 JUDGE SULLIVAN: Perfect. And 21 then, essentially, you make some arguments 22 about, and you have a memorandum of law, and
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• 45
1 then you attached, in essence, 19 different 2 documents over a series of 34 pages, because 3 there's a variety of different blank pages 4 interspersed amongst those documents. Does 5 that sound familiar to you? 6 MR. GIBBS: Well, I'm looking at 7 my motion and, yes, the request for admissions 8 I see. Yes. 9 JUDGE SULLIVAN: Yes. You 10 basically have 11 MR. GIBBS: I apologize. rrhose 12 should have been 13 JUDGE SULLIVAN: Yes. You 14 basically submitted a copy of the FAA's 15 response to Respondent's first discovery 16 request, you attached it, and then on Page 2 17 of your six-page motion you say, under 18 Paragraph 9, that they're attachedhereto, "in 19 support of this motion." 20 So I want to ask you about these 21 because when you do that, essentially, you are 22 asking the Court to find that these documents
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• 46 1 are admissible for the purposes of considering 2 your request. And what's interesting to this 3 Court is that, included in the 19 documents 4 that you submitted, are all eight documents 5 that the FAA submitted in its exhibit list in 6 its own motion. 7 So FAA Exhibits 1 through 8 are 8 all included in the material that you 9 submitted in support of your motion. In 10 addition, you have submitted in your motion 11 documentation that basically identifies Mr
. 12 Gray as the director of operations for Part 13 135 operations for the company, and 14 identifies, let's see if I can find my notes, 15 Mr. Magill as the director of maintenance for 16 your company, it identifies, let's see, Mr. 17 Keys as the chief pilot for Part 135 18 operations. 19 MR. GIBBS: No, not Mr. Keys. 20 Maybe Mr. Paul? Mr. Keys was the Captain on 21 the flights. He was not the chief pilot. 22 JUDGE SULLIVAN: Your
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• 47 1 documentation, and I tentatively identifiedit 2 as Respondent's Number 11, let me see if I can 3 find that. And I'll go to it. Okay. It's 4 Page 19 if you count all the blank pages. 5 MR. GIBBS: Forgive me, Your 6 Honor. I've got my motion in front of me, but 7 I do not have those attachments. 8 JUDGE SULLIVAN: Yes. It says 9 David G. Paul, excuse me. 10 MR. GIBBS: Right. Okay. You're 11 right. David Paul
. 12 JUDGE SULLIVAN: I need to change 13 that. So in this documentation you also have 14 an October 5, 2010 letter that is purportedly 15 written by Mr. Meenan to Mr. Gray regarding 16 the September 9, 2010 safety concerns. 17 And then you have a letter dated 18 October 15, 2010 from Mr. Magill to Mr. Meenan 19 acknowledging that there were irregularities 20 in Elite's handling of the manual, and the 21 forms of the manual, and that Elite has talked 22 to all parties concerned and corrected the
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• 48 1 issue. 2 So I want to know from you what 3 you think these documents do to help you in 4 your motion to dismiss the complaint that's 5 before this Court today, because it appears to 6 me that it basically concedes the violation on 7 its face. 8 MR. GIBBS: Well, you know, Judge 9 Sullivan, I'm not sure how those documents got 10 included. The request for admissions is the 11 only thing I thought was supposed to be 12 included. So I honestly don't know how they 13 got included and I apologize to the Court that 14 I did included those. 15 However, I will say this, I do not 16 think that we concede that the Captain failed 17 to do what he was required to do. I know that 18 Mr. Magill, the director of maintenance, did 19 write a letter to Mr. Meenan that acknowledged 20 what Mr. Meenan was saying and said that he 21 would correct all of the things that Mr. 22 Meenan was alleging was incorrect.
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• 49
1 And I know that letter. I recall 2 that letter. I know that letter was not very 3 artfully worded and it was done by a director 4 of maintenance, but I can tell you that he did 5 not independently conclude that there was 6 anything wrong. 7 He simply took the allegations of 8 Mr. Meenan and said, I will make sure that if 9 those allegations are correct, that those 10 types of things are corrected. 11 That was not an admission that 12 there was anything wrong. It was simply an 13 acknowledgment of what Mr. Meenan said he 14 thought was not being handled procedurally, 15 correctly. And again, you know, so we don't 16 think that's an admission that there was 17 anything wrong, and he's the director of 18 maintenance, it has nothing to do with the 19 operations side of the house. 20 And it is not an admission that 21 Captain Keys didn't do his pre-flight 22 inspection and enter all the documents from
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• 50
1 the status sheet. 2 JUDGE SULLIVAN: Okay. 3 MR. GIBBS: But I apologize, Your 4 Honor. I don't know what documents

-- I'll 5 just have to check, but, I mean, all those 6 documents should not have been included. The 7 only thing I reference in my motion is the 8 response to their request for admissions. 9 JUDGE SULLIVAN: Well, basically, 10 in your motion on Page 2 you have, this is the 11 FAA's response to the Respondent's first 12 discovery request, and I would agree with you, 13 it appears that you provided the entire 14 response of the FAA to your discovery request. 15 MR. GIBBS: Yes. 16 JUDGE SULLIVAN: Which is the 17 request for admissions, the responses to the 18 interrogatories, and the request for 19 production. And the request for production 20 includes letters generated on your lette.rhead 21 from your employees to the safety inspector 22 regarding this violation, whichpresumably, on
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• 51 1 its face, come in. 2 But let me ask you this, in terms 3 of FAA Exhibits 1 through 8, which you also 4 attached to your motion, and they're not 5 attached in exactly the same lineup, but I 6 went through and I looked at every single one 7 of these exhibits and I compared it to see if 8 you had duplicates, and sure enough, you did. 9 How is it, in your opinion, that 10 you can submit FAA Exhibits 1 through 8 in 11 your own materials and suggest to this Court 12 that they're admissible to support your 13 argument, but that they're not admissible to 14 support the FAA's argument. 15 MR. GIBBS: I'm not suggesting 16 they are admissible in court. I'm suggesting 17 that even looking at the Government's case in 18 their best light, as you would have to do for 19 a motion for summary judgement for us, that 20 even look at it in the Government's best 21 light, which would be with them coming into 22 evidence, that the forms did provide
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• 52 1 inspection dates where Captain Keys had filled 2 them. 3 And I think that's the purpose for 4 putting them in there. Those copies are the 5 copies that the Government gave us. We do not 6 have the original copies. We don't have 7 copies from any place except what the 8 Government gave us in this case. 9 But even looking at the case in 10 the Government's best place, Captain Keys did 11 put down inspection dates, but that does not 12 acknowledge the admissibility if you just 13 denied both motions for summary judgement, we 14 don't think they are admissible. We don't 15 think they're authenticated at all. In fact, 16 they could have come from anywhere. 17 I know they did not come from the 18 director of operations because I am the 19 director of operations and I know that we just 20 keep them the required 30 days. And that the 21 inspections, the flights, were over 30 days. 22 One of them, I think, as much as 60 days
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• 53 1 previous to when he actually did the 2 inspection. 3 So I know that the original 4 documents are not available and I know that 5 they didn't get them from me. But, Your 6 Honor, so the answer to the question is, I 7 don't think they are admissible, but even 8 viewing the case in the Government's best 9 light, I think my thought was, motion for 10 summary judgement would still be appropriate 11 because he did fill out inspection dates
. 12 JUDGE SULLIVAN: Let me ask you 13 this, and I'm not asking you to testify, 14 because clearly, your wearing several hats. 15 MR. GIBBS: Yes, ma'am. 16 JUDGE SULLIVAN: Right now, you're 17 counsel for your company. 18 MR. GIBBS: Right. 19 JUDGE SULLIVAN: I don't want to 20 dive into talking to you as though you are a 21 witness, because I don't want to do that. 22 MR. GIBBS: Right.
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• 54
1 JUDGE SULLIVAN: So as counsel for 2 you company, you had indicated to me in an 3 earlier argument that the Government's case 4 falls short because it does not have the 5 status sheets that the maintenance crew filled 6 out to support that the pilot did anything 7 wrong in not filling out the aircraft manifest 8 form to the extent that the FAA says it should 9 have. 10 In your argument just now, you're 11 asserting, as counsel for the company, that 12 the company only keeps records for 30 days. 13 If that is so, and neither the company nor the 14 FAA has status sheets that crew members fill 15 out, then isn't the presumption, at that 16 point, on you to produce those status sheets 17 as part of an affirmative defense as opposed 18 to asserting that the FAA has to find them in 19 some way when it does a safety inspection two 20 or three months after the fact? 21 MR. GIBBS: I mean, Your Honor, I 22 don't think so. I mean, the FAR-135.63(d)
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• 55
1 says that, you know, the companies are to 2 maintain the records required for the manifest 3 for at least 30 days, and that's what the 4 Federal Aviation Regulations require. That's 5 what the company's operations manual requires. 6 So I mean, if the FAA come in and 7 say 1 •okay, prove to me that you did your 8 status sheet and your manifest correctly 60 9 days ago, you can never prove that unless you 10 kept records forever and ever. I mean, if the 11 law requires you to keep them for 30 days, 12 then I don't think you're required to keep 13 them any longer than that. 14 JUDGE SULLIVAN: Well, that's 15 certainly one way to look at it 1 but I'm 16 saying you are basing a large portion of your 17 argument on the assertion that you have to 18 couple review of this particular violation by 19 looking at both the aircraft manifest sheet 20 and the status sheet in conjunction, that they 21 have to be read together. 22 And what I'm also hearing from you
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• 56 1 is that, you don't have to keep those, you 2 don't have to have them available for review, 3 and that if they are not kept, if they are 4 destroyed, then the FAA cannot go forward with 5 a safety inspection violation. 6 And I'm somewhat troubled by that 7 type of argument and I want you to develop it 8 for me. Why is it, in your opinion, that 9 that's good safety practice? 10 MR. GIBBS: I mean, Your Honor, 11 there's plenty of inspections that the FAA can 12 do to determine whether or not the safety 13 practices of an airline are being complied 14 with. I mean, plenty of records have to be 15 kept, you know, permanently. I mean, logbook 16 entries, those sort of things, but I mean, 17 that's why certain possible violations become 18 stale and they're just not appropriate. 19 I mean, it would be unfair to any 20 operator to have to have any burden of proof 21 that they did something, you know, after the 22 records were not to be maintained any longer.
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• 57 1 JUDGE SULLIVAN: Okay. 2 MR. GIBBS: And I mean, if there 3 was a viable argument that they should be kept 4 permanently to be there to always prove, you 5 know, that you did your weight and balance, 6 and that you did all the things you were 7 supposed to do, you know, the regulations 8 could have said, keep them for six months; 9 keep them for a year; keep them three years. 10 They said keep them for 30 days. 11 If the FAA came in and said, prove to me that, 12 31 days ago on that flight, you did your 13 weight and balance, I mean, the answer is, I 14 can't prove that to you anymore because the 15 records aren't here. 16 And if they said, well, gee, we 17 don't think you did so we're going to claim 18 you did, and if you can't produce the records 19 you lose, I can't see that. And, I mean, the 20 truth is, is that, the status sheet is the 21 source of the material for the Captain to fill 22 out the flight manifest.
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1 And if the FAA didn't bother to 2 ask for it or try to get a copy of it when 3 they did their inspection, then now, six 4 months later, say, well, gee, you know, we 5 don't care what the source is, you know, we 6 know that this copy of a copy has a blank in 7 it, and so, you know, unless you can prove an 8 affirmative defense, I think they just have 9 the burden of proving their case and I don't 10 think they reached a point of going forward 11 with their burden to the point to where it 12 becomes an affirmative defense. 13 The source material for it is the 14 status sheet. 15 JUDGE SULLIVAN: Okay. I 16 understand. 17 MR. GIBBS: And they should have 18 asked for it. 19 JUDGE SULLIVAN: I understand. 20 Thank you. Let me ask you a couple other 21 questions. It sounds like, from your 22 materials, that the safety inspection most
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1 likely occurred on September 9, 2010, based on 2 documentation that was generated close in time 3 by both your employees and Mr. Meenan, would 4 that be a fair statement according to what 5 your understanding of this violation and the 6 time frames are? 7 MR. GIBBS: According to his 8 allegations. I mean, that's the only thing I 9 have is his declaration that he did the 10 inspection on that day. 11 JUDGE SULLIVAN: Okay. In 12 response to your motion, the FAA submitted an 13 answer and then also included a new exhibit, 14 which was identified as Exhibit 9, and it is 15 a letter dated December 17, 2008. Do you have 16 that material in front of you? 17 MR. GIBBS: I do have that. 18 JUDGE SULLIVAN: You didn't 19 mention that in your final reply. I know that 20 this is a letter that probably would be 21 utilized almost exclusively on the issue of a 22 penalty. So it may not be particularly
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1 relevant to the merits of the violation in any 2 case, but I wanted to know if you have any 3 objection to its admissibility or if you have 4 any comment about it. 5 MR. GIBBS: Your Honor, is this 6 exhibit, is it to the Complainant's response 7 to Respondent's motion for summary judgement? 8 JUDGE SULLIVAN: Yes. 9 MR. GIBBS: Okay. I'm looking 10 here. And the exhibit is which one? 11 JUDGE SULLIVAN: It's FAA-9
. It 12 appears to indicate some history of 13 discussion, essentially, between the parties 14 regarding an allegation or an incident that 15 may have occurred in September 2008. And 16 normally 17 MR. GIBBS: Oh. 

### 18 JUDGE SULLIVAN:

-- these kinds of 19 things are only presented to the court during 20 the penalty phase of a proceeding to indicate 21 some history. 22 MR. GIBBS: Well, Your Honor, I
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• 61
1 think that goes to our argument that, you 2 know, it was an abuse of discretion to turn a' 3 fill-in-the-blank discrepancy into a violation 4 and that to do that was an abuse of discretion 5 and a violation of FAA Order 8900.1, which we 6 really haven't talked about today. 7 JUDGE SULLIVAN: My question 8 MR. GIBBS: I have a -- 9 JUDGE SULLIVAN: I'm sorry, sir. 10 Yes. 11 MR. GIBBS: I have a real concern 12 that, effectively what you just said was that, 13 that just goes to the penalty phase. 14 JUDGE SULLIVAN: Typically, these 15 kinds of letters would be utilized for the 16 penalty phase, but I'm happy to accept it as 17 being admissible on its merits in terms of 18 helping you. 19 MR. GIBBS: Right. 20 JUDGE SULLIVAN: You were the one 21 that submitted it, but if you don't object to 22 its admissibility I can certainly deem it
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• 62 1 admissible and then consider it for any number 2 of reasons. 3 MR. GIBBS: Well, I don't know 4 that

-- I mean, I think it's unfair to admit 5 that because it opens up a can of worms about, 6 okay, well, what was that about? Was that 7 about fill-in-the-blank problems? Is that 8 similar to the same problem because there they 9 basically admit, I think, that under 8900, a 10 fill-in-the-blank mistake should not be a 11 violation
. 12 I think they basically admit that. 13 And then they say, however, if you have a 14 history of discrepancies like that, then that 15 shows a pattern of disregard and, therefore, 16 you don't get just a warning, then it is 17 appropriate and not an abuse of discretion to 18 make it into a violation. 19 And they point to this 2008 letter 20 as the reason they think they can turn a fill21 in-the-blank problem into a violation and I 22 think that's
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1 JUDGE SULLIVAN: Well, let's talk 2 about that, because now I'm on Page 6 of the 3 Complainant's response to Respondent's motion 4 for summary judgement, because I do want to 5 talk about your argument regarding the FAA 6 Order 8900.1. 7 And in this particular material 8 that the FAA counsel provided, he has a 9 quotation of that subsection that might be 10 helpful for us in this discussion today. His 11. argument, as I understand it, and I'm going to 12 let Mr. Landers reply, and I will also let you 13 reply with final argument, but his statement 14 in his argument in this material basically 15 says that this particular order should be 16 utilized for low-risk cases that allow for on17 the-spot correction. 18 And according to his argument, 19 this particular violation that's before the 20 court today doesn't qualify under either 21 standard. According to you, it does. Can you 22 explain to me how it does; if I'm supposed to
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• 64
1 utilize the language of on-the-spot correction 2 and low-risk case in evaluating this? 3 MR. GIBBS: Right. Okay. Well, 4 first, I mean, again, if it's a fill-in-the5 blank, I defy Mr. Landers to argue that it 6 wasn't a low-risk violation or a low-risk 7 discrepancy. I mean, I think he acknowledges 8 they did all the work. So, I mean, I defy him 9 to argue that it wasn't low-risk. 10 I think that his point there is, 11 it had to be "corrected on the spot". Well, 12 and then they say, for example, inspections 13 finding, and then a split field, they can fill 14 it in, but that's just for example. I mean, 15 I don't think that-- in fact, it would almost 16 eradicate the concept if Mr. Landers was 17 correct that it always had to be checked on 18 the spot, because most findings are from some 19 previous time. 20 So any correction on the spot will 21 do it. I mean, literally, Mr. Meenan could 22 have picked up the phone, called the Captain,
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• 65 1 and said, you know, do you understand that 2 you've got to fill out every single blank, and 3 even if it's not on the status sheets you've 4 got to go track it down and you have to go 5 fill it out? 6 And he said, yes, I will do that 7 going forward every single time, I think that 8 would have constituted on the spot, or he 9 could have called up the director of ops and 10 said, you need retrain your pilots. Can we 11 agree that you will retrain your pilots that 12 they have to fill in every single blank? 13 And if the director of ops said, 14 yes, we will do that training, then that would 15 have corrected the problem on the spot. So, 16 Judge, I mean, like I said, if Mr. Landers' 17 argument that, wow, it's got to be fill in the 18 blank right there, they got to walk up while 19 they're doing the flight and fill in the 20 blank, that's not the purpose of the rule. 21 JUDGE SULLIVAN: Okay. I've asked 22 you all the questions that I had noted that I
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• 66 1 needed to address. Is there anything else 2 that you would like to identify or talk about 3 in your motion in chief argument? 4 MR. GIBBS: Well, Judge, I mean, 5 we've kind of beat this horse pretty hard, but 6 I would like to just finish by saying, Judge, 7 the forms that are the basis for the violation 8 are copies of copies that came from a source 9 that is unknown. I just don't see how, under 10 rule you know, you're right, they're not 11 self-authenticating
. 12 Rule 2002 of evidence require a 13 document to be an original, with the exception 14 of 203, and even it says, 11A duplicate is 15 admissible to the same extent of the original 16 unless a genuine issue is raised about the 17 original's authenticity
... 18 Well, this is not even a copy of 19 the original. So a copy of a copy, certainly, 20 there raises an issue about whether or not 21 this is even the final copy that was the 22 original. Unless they got the original and
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• 67
1 copied it, I don't think 1003 applies. 2 So, Judge, I mean, I just truly 3 believe that the motion for summary judgement 4 could be resolved because I think that there's 5 just no way they can authenticate those 6 documents. 7 JUDGE SULLIVAN: Let me ask you 8 this, Mr. Gibbs, let's assume that you and I 9 disagree about what a genuine issue is in 10 terms of the extent that we look at a 11 duplicate versus an original, particularly 12 when we look at material that appears to have 13 been generated on either FAA letterhead or 14 Elite Air letterhead. 15 Let's assume, just for the sake of 16 argument, that these documents are admitted. 17 If they are admitted, do you have any other 18 defense that you would like to raise other 19 than the defense that the documents should not 20 be deemed admissible? 21 MR. GIBBS: Well, Your Honor, 22 again, I think that without the status sheet

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• 68 1 - I mean, if he filled in a blank on every one 2 of those sheets that provided an inspection 3 date without the status sheet, it flatout says 4 in the manual that he will enter the 5 inspection dates from the status sheet. 6 Without the status sheet, how can 7 you conclude that he didn't do exactly what he 8 was required to do? So that's point number 9 one. Point number two, even if the court was 10 inclined to find that he didn't do what the 11 manual required because he didn't fill out 12 every single blank, even if the court finds 13 that, you still have, you know, the FAA Order 14 8900.1. 15 I mean, it is an FAA Order, you 16 know, that the FAA is supposed to comply with 17 and how do you get around the fact that

-- I 18 mean, they have a specific example that says, 19 if you didn't fill in a blank, that is a low20 risk that shouldn't be a violation. 21 So, I mean, that's an abuse of 22 discretion right on its face. I don't see how
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• 69 1 you could possibly grant the Government's 2 motion for summary judgement given the fact 3 that, you know, the FAA

-- because they admit 4 this is a fill-in-the-blank argument for them. 5 This is not, they didn't do 6 anything, they overflew an inspection, they 7 didn't do a pre-flight inspection, none of 8 those arguments are being made. This is a 9 fill-in-the-blank argument and, you know, I 10 don't see how you could possibly grant motion 11 for summary judgement for the Government even 12 if you decided that was going to be 13 admissible. 14 JUDGE SULLIVAN: Okay. Thank you 15 very much for your arguments and for you 16 assistance to the Court. Mr. Landers, as the 17 moving party on the FAA's motion for summary 18 judgement, you have a right of final reply, 19 would you care to make any argument, and this 20 would include response to the arguments made 21 by the Respondent in its cross-motion for 22 summary judgement?
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70 1 MR. LANDERS: Yes, Your Honor, I 2 have a couple of points I'd like to respond to 3 that Mr. Gibbs raised. First, with regard to 4 the status sheet, as you indicated, the letter 5 from the director of maintenance, Jim Magill, 6 that Mr. Gibbs attached to his response, in 7 there, he basically admits that the status 8 sheets weren't being created. 9 According to my inspector, that's 10 the reason there isn't a status sheet, and 11 this is going to be what he testifies at trial 12 is that when he requested them he was told, 13 oh, we**don~t** even carry those. We're using 14 this other documentation, which is indicated 15 in that letter from Mr. Magill, dated October 16 15th, 2010. 17 So that would be my first point as 18 to clarify why those weren't. Second, I 19 didn't raise this issue in any of my stuff 20 because Mr. Gibbs didn't raise it until his 21 reply brief. 22 So also in that documentation that
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• 71
1 Mr. Gibbs submitted in support of his motion, 2 as you indicated, the pages aren't numbered, 3 but just as there's the instructions for 4 filling out the EAI-301, in that packet 5 there's also instructions for filling out the 6 status sheet, the EAI-106. 7 In there, let me see if I can 8 count the number of pages back to help you 9 out. I'm not sure where you started counting. 10 Looking at the page that starts with the items 11 of proof
. 12 JUDGE SULLIVAN: If you' 11 give me 13 a minute, sir, I'll need to take a look at 14 where you are. 15 MR. LANDERS: Yes, Your Honor. 16 JUDGE SULLIVAN: It'll just take 17 me one or two more minutes. Well, not even 18 that. I've got it. It's Page 20 as I counted 19 them, 1 through 34, including all the blank 20 pages. 21 MR
. LANDERS : Okay. Yes. I 22 wasn't sure exactly what you numbered as Page 

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72 1 1. That's the reason I wasn't sure exactly 2 II where. So in there, just as with the others, 3 II there's the instructions. And then the next 4 II page has the detail that tells you to fill it 5 II in. 6 II As to Mr. Gibbs' argument that we 7 II don' t even know whether or not there were 8 II other cycle due dates, time-limi teds, there 9 II are always, on every aircraft, something has 10 II a next time due date, cycle due date, or a 11 II date of inspection. That's just the nature of 12 how things are run. 13 So there will always be something 14 II that should, and I think he even indicated 15 II that by saying it could one or three years 16 II away. Well, even if it's one or three years 17 II away, the Elite Air General Operations Manual 18 II requires that information to be entered. 19 II It seems that Mr. Gibbs' point of 20 II view is, well, because it's so far away we can 21 II just ignore the General Operations**M~nual** and 22 not include it, but that's not what the NEAL R. GROSS (202) 234-4433 COURT REPORTERS AND TRANSCRIBERS 1323 RHODE ISLAND AVE., N.W. WASHINGTON, D.C. 20005-3701 www.nealrgross.com

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• 73 

### 1 General Operations Manual requires. So that 2 was my point with regard to the status sheet 3 that he raised. 4 As to, sorry, I was just reviewing 5 my notes, the fact that, I think Mr. Gibbs is 6 

### misunderstanding. Even if, and obviously 7 we're not conceding this, this was appropriate 8 under the 8900 for administrative action, that 9 would still be a violation. 10 So when he's saying there is no 11 violation under the 8900, that's wrong. There 12 would still be the violation. It's just the 13 correct sanction, for lack of a better word, 14 would be the administrative action. So just 15 to clarify that. 16 

### JUDGE SULLIVAN: Well, let me ask 17 you that, just very briefly, and I'm going to 18 go to Page 6 of your response to the 19 Respondent's motion for summary judgement 20 where you talk about FAA Order 8900.1. 21 In this particular scenario it 22 

### indicates in the quote that you provide in the
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• 74 1 middle of Page 6 of your response that, in 2 essence, and I'm going to quote, 11It is 3 acceptable to use administrative action or 4 informal action (oral or written counsel) 5 after the correction to close these 6 violations. 11 7 Wouldn't that lead a reasonable 8 person to believe that your first priority 9 then is to categorize record keeping 10 violations, that Mr. Gibbs asserts these are, 11 as administrative or informal in nature? 12 That's, I think, one of his arguments and 13 defenses to this. 14 MR. LANDERS: Yes, Your Honor, and 15 I would disagree with that point. First, the 16 beginning of that sentence talks about low17 risk violations corrected on the spot. When 18 a certificate holder corrects on the spot. 19 Here, they weren't corrected on the spot. 20 Mr. Gibbs can disagree with the 21 plain wording of this letter, but going back 22 and changing policy going forward doesn't
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' 75
1 correct the violation that already happened. 2 To correct that violation, it would have had 3 to have been, the pilot would have to go back 4 and fill in the blanks when this was 5 discovered, so that would take that out. 6 But second, this whole order gives 7 our inspectors guidance as to when 8 administrative action or to go legal, but just 9 because it gives them the option to do one 10 doesn't mean that they have to do it. So in 11 this case, just because it is acceptable to do 12 administrative action, it doesn't require them 13 to. 14 JUDGE SULLIVAN: Anything else 15 that you would like to add to your reply 16 argument? 17 MR. LANDERS: And as far as him 18 saying that the inspector could have called up 19 and had them fix it on the spot, nothing in 20 this 8900 requires the inspector to take the 21 initial action to have them correct it on the 22 spot. It's the operators responsibility to
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• 76 1 correct it on the spot. 2 The FAA has no responsibility to 3 call them up and say, hey, for you to get an 4 administrative you need to go back and correct 5 this on the spot. That's just not what the 6 order requires. And that's all I have. 7 JUDGE SULLIVAN: Okay. Mr. Gibbs, 8 you have a right of final reply in your cross9 motion for summary judgement. And in your 10 reply, your oral argument, it would be helpful 11 if you could address any and all things that 12 you've heard from Mr. Landers that you think 13 need to be tied up on behalf of your client. 14 Any final argument that you would 15 like to make? 16 MR. GIBBS: Your Honor, I don't 17 think that I really have any other points that 18 I haven't made more than once today. I still 19 feel real strongly that the Government has not 20 even -- there's no evidence in the record 21 where those manifests even came from, much 22 less whether or not they were from the
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• 77 1 originals, and so I can't imagine a motion for 2 summary judgement without some testimony or 3 some evidence on where those came from. 4 So, I mean, it really is upsetting 5 to find out that you suggested you may 6 disagree, but I mean, I just think the rules 7 of evidence are there for a reason and I think 8 that is the lynchpin of our case, and that is 9 that, you know, we think we keep our records 10 the way we're supposed to and then all of a 11 sudden we may get penalized from it, and that 12 just doesn't seem fair. 13 But beyond that, I mean, the 14 Government acknowledges that this is a fill15 in-the-blank case and if all they can do is 16 fine people for failing to cross a T or dot an 17 I, you know, $5700, I mean, it's an abuse of 18 discretion and those are the points that I 19 still make. So that's it. 20 JUDGE SULLIVAN: Okay. Thank you 21 very much. And let me try and clarify what I 22 said earlier. I have indicated, I think, most
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• 78 1 strongly that I think that there is an 2 admissibility problem with a document 3 submitted by the FAA as identified FAA 1 4 through 8. 5 What is troubling, of course, is 6 that the Respondent also submitted the same 7 documents in its own case in chief, which 8 lends some difficulty to the Respondent's 9 argument that they're not admissible at all, 10 as I have also mentioned. 11 But in looking at these documents, 12 I do think that there are authentication 13 problems, but I also think that it's possible 14 to cure them, and curing them is one of the 15 things that the Court has to allow the parties 16 to do on occasion if all circumstances appear 17 to show that it's possible and that it will 18 not cause prejudice to the other side. 19 Given the fact that the Respondent 20 has submitted these documents in its own case 21 in chief, it is hard for me to see what 22 prejudice would exist to allow the FAA an
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• 79
1 opportunitytoprovide a supplemental document 2 to its motion. This is specifically allowed 3 under CR 56, Subsection E as in egg. 4 And for those of you who do have 5 your rulebook in front of you, you will see 6 that, "If a party fails to properly support an 7 assertion of fact as required by the rules, 8 the Court may give that party an opportunity 9 to properly support or address the fact." 10 We have enough time prior to the 11 trial that's currently set in late-August 12 2012, to allow for that. And so I will give 13 the FAA a very short period of time to provide 14 a supplemental declaration or affidavit from 15 Mr. Meenan that basically, if he can, provide 16 the nexus between his assertions of 17 certification of the accuracy of duplicates 18 and what appears to be an argument by the FAA 19 that this assertion should be deemed 20 acceptable. 21 Currently, as I noted earlier, the 22 certification of Mr. Meenan, in my opinion,
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• 80 1 fails because it doesn't reach the level of 2 reliability as anticipated by either the 800 3 or 900 series, as I read the evidence rule. 4 Certainly that could be corrected 5 with a declaration or affidavit based on 6 personal knowledge, which the FAA has made 7 assertion it can do, and would do, at the 8 trial level. So Mr. Landers, turning to you, 9 can you supplement your motion for summary 10 judgement within the next seven to ten days 11 with a declaration from Mr. Meenan? 12 MR
. LANDERS : I believe so. I 13 don't know if Mr. Meenan is in the office this 14 week. They travel a lot as inspectors, but I 15 will give him a call as soon as we get off, 16 and assuming that I can get in touch with him 17 within the next week, I'll have it to you the 18 next day after I talk to him. 19 JUDGE SULLIVAN: Well, let me take 20 a look at my calendar and then I'm going to 21 also talk to Mr. Gibbs about an opportunity to 22 supplement his record as well. Today is July
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• 81
1 25, 2012, and we have a trial that's currently 2 set for August 28, 2012. What I'm going to 3 ask you, Mr. Landers, is if you can have that, 4 a declaration from Mr. Meenan, filed with the 5 Office of Hearings and with Mr. Gibbs no later 6 than August 7, 2012. 7 MR. LANDERS: Yes, Your Honor. 8 JUDGE SULLIVAN: And then we have 9 a due date of August 26, 2012 for an exchange 10 of witnesses and exhibits. And then I have 11 placed inmy litigationprocedure order that's 12 dated March 2nd, 2012, a tentative due date 13 for the Court to issue a written decision on 14 the summary judgement motion by August 1, 15 2012. 16 Given the fact that I'm granting a 17 supplemental filing in this particular motion 18 with a due date of August 7, 2012, what I'll 19 try and do is, I will try and issue my 20 decision no later than August 10, 2012. 21 A declaration, Mr. Landers, should 22 include whatever material that you think Mr.
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• 82 1 Meenan has personal knowledge of that could 2 allow for the Court to potentially find your 3 exhibits admissible on their face. 4 MR. LANDERS: Okay. 5 JUDGE SULLIVAN: It should be in 6 declaration or affidavit form pursuant to the 7 rules. Mr. 8 MR. GIBBS: Your Honor, may I

-- 9 I'm sorry. 10 JUDGE SULLIVAN: Mr. Gibbs, 11 turning to you, in terms of your supplemental 12 materials, you have made some arguments that 13 are not supported in your materials at all, 14 and I'm concerned about that because the 15 motion for summary judgement, either as an 16 original motion or as a cross-motion, cannot 17 simply be based on arguments, speculation, or 18 conjecture. 19 So I'm wondering if there is a 20 certain portion of your motion that you think 21 you might want to supplement within the same 22 time period, and if so, what is it?
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• 83
1 MR. GIBBS: Well, Your Honor, I'm 2 not sure what argument that is based upon a 3 declaration that would be necessary. I mean, 4 our argument is, of course, that they can't 5 authenticate the exhibits and, I mean, I think 6 that's before the Court, and I'm not sure what 7 I could possibly supplement it with. I mean, 8 if

-- 9 JUDGE SULLIVAN: Well, let me -- 10 MR. GIBBS: Go ahead. 11 JUDGE SULLIVAN: Let me suggest 12 something to you, and it's not for me to 13 advocate for you, but you have identified, in 14 at least the materials that you submitted to 15 your motion, a variety of different people 16 that may or may not have knowledge of 17 affirmative defenses. 18 You have, for example, asserted 19 that the FAA should have obtained and utilized 20 a status sheet 1n conjunction with the 21 aircraft manifest form. You have indicated 22 that the forms that are before the Court are
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1 not, in fact, genuine, and that they may have 2 been doctored in some way, shape, or form. 3 If you have someone on your staff 4 who has personal knowledge that these 5 particular documents are fraudulent 1n any 6 way, shape, or form, I will give you an 7 opportunity to submit testimonial evidence 8 from your employee who has that information, 9 by declaration or affidavit, to be submitted 10 on or before August 7, 2012. 11 MR. GIBBS: Okay. Your Honor 12 JUDGE SULLIVAN: In addition, if 13 you have some legal authority to support your 14 assertion that the status sheets must be used 15 in conjunction with the aircraft manifest and 16 that it's the FAA's burden to obtain those 17 before you destroy them, I'd like to see that 18 legal authority as well. 19 MR. GIBBS: Okay. 20 JUDGE SULLIVAN: So both of you 21 have the opportunity to supplement the record 22 in your motions, but that material has to be
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1 on my desk as of August 7, 2012. So that 2 means that if you are filing this material, 3 you should file it, not only by U.S. mail, but 4 fax it to each other and to this office. 5 And if you don't have the fax 6 numbers, they should be on the certificate of 7 service. Yes, everybody's fax number is on 8 the certificates of service that at least the 9 Office of Hearings has sent out. 10 MR. GIBBS: Okay. 11 JUDGE SULLIVAN: Mr. Gibbs, you 12 had a question. 13 MR. GIBBS: Well, I was just going 14 to say, for the record, Your Honor, I'm not 15 suggesting that the documents, necessarily, 16 had been falsified, I'm suggesting they may 17 not even have been complete. We don't know 18 when the copy that the FAA has, we don't even 19 know when that copy of a copy got made because 20 we know it was not a copy of the original that 21 was maintained in our office. 22 So I'm not suggesting it was
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1 falsified, I'm just suggesting it might not 2 even have been complete. It might have been 3 completed before the flight was closed out is 4 what I'm saying. 5 JUDGE SULLIVAN: Okay. 6 MR. GIBBS: I will do a 7 declaration. I mean, I appreciate the 8 opportunity to submit a declaration. 9 JUDGE SULLIVAN: Yes. If you want 10 to submit a declaration in support of that 11 type of argument, I'm giving you the 12 opportunity to do it. 13 MR. GIBBS: I appreciate it. 14 JUDGE SULLIVAN: Okay. With that, 15 and it appears to me that the matters have 16 been substantially argued today. I don't 17 think we need to have another oral argument 18 unless one of the two of you thinks that it's 19 necessary, and I'll start with you, Mr. 20 Landers. 21 MR
. LANDERS : I do not, Your 22 Honor
. NEAL R. GROSS
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1 JUDGE SULLIVAN: And, Mr. Gibbs. 2 MR. GIBBS: No, Your Honor. 3 JUDGE SULLIVAN: Okay. Then I 4 will thank you both very much for all of your 5 materials and for your very vigorously fought 6 arguments today. It was a pleasure having you 7 both appear before me. I look forward to the 8 material that the two of you may or may not 9 submit on or before August 7, 2012, and I will 10 issue a written decision on or before August 11 10, 2012
. 12 In the meantime, just to err on 13 the side of caution, I'm going to have my 14 secretary start calling around and getting a 15 hearing location. If she can get that done 16 before August 10, 2012, I'll send that notice 17 out to you separately. I want to make sure 18 you have as much advance notice as possible 19 regarding that location so you can notify your 20 witnesses. 21 And then if the parties settle or 22 this matter goes away in some other form or
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• 88 1 fashion, by dismissal or otherwise, we can 2 always cancel that hearing time. 3 With that, Mr. Landers, on behalf 4 of your client, is there anything you would 5 like to add or correct to the record? 6 MR. LANDERS: No, Your Honor. 7 JUDGE SULLIVAN: Mr. Gibbs, on 8 behalf of your client, anything you'd like to 9 add or correct to the record? 10 MR. GIBBS: No, Your Honor. 11 JUDGE SULLIVAN: Thank you both 12 very much for your time today. It appears our 13 business is complete. With that, we can go 14 off the record and I wish you all a good day. 15 MR. LANDERS: You too, Judge. 16 MR. GIBBS: Take care, Your Honor. 17 JUDGE SULLIVAN: Thank you. Bye18 bye. 19 (Whereupon, the hearing in the above20 entitled matter was concluded at 11:31 a.m.) 21 22
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· C E R T I F.I CAT E

This is to certify that the foregoing transcript

In the matter of: Elite Air

Before: US DOT

Date: 07-25-12

Place: teleconference

was duly recorded and accurately transcribed under my direction; further, that said transcript is a true and accurate record of the proceedings.

(202)234-4433 Court Reporter

NEAL R. GROSS COURTREPORTERSANDTRANSCRIBERS 1323RHODE ISLANDAVE., N.W. WASHINGTON,D.C. 20005-3701 www.nealrgross.com