SERVED: April 1, 2015 

In The Matter Of: 

AIRBOR!\JE M,;\INTENANCE 

AND ENGINEERING SERVICES 

Respondent 

) 

) 

) 

) 

) 

) 

Docket No. F AA-20 13-0291 

Case No. 2011S0290032 

ORDER GRANTING IN PART AND DENYING IN PART 

THE FAA'S MOTION FOR SUMMARY JUDGMENT 

On January 30,2015, the Federal Aviation Administration ("FAA") filed a Motion for 

Summary Judgment ("Motion"). That same day, on January 30, 2015, the Respondent, Airborne 

Maintenance and Engineering Services ("Respondent") also filed a Motion for Summary 

Judgment ("Cross-Motion"). 

On February 11,2015, an Order Granting Respondent's Motion to Exclude, and 

Granting/Denying Other Relief was filed. 

On February 18,2015, the FAA filed the FAA's Response in Opposition to Respondent's 

Motion for Summary Judgment ("FAA Response"). That same day, on February 18, 2015, the 

Respondent filed its Answer in Opposition to Complianant's [sic] Motion for Summary 

Judgment ("Respondent's Response"). 

On February 27, 2015, the FAA filed the FAA's Reply in SuppC?rt of Motion for 

Summary Judgment ("FAA Reply"). That same day, on February 27, 2015, the Respondent filed 

the Reply of Respondent to FAA's Opposition to Respondent's Motion for Summary Judgment 

("Respondent's Reply"). 

On March 5, 2015, the parties convened by telephone for a Summary Judgment Motion 

Conference, and presentedoral arguments on the FAA's Motion and the Respondent's CrossMotion. 
On March 16, 2015 the FAA filed a Supplemental Submission on Motion for Summary 

Judgment. The next day, on March 17, 2015, the Re;pondent filed Respondent's Supplemental 

Submission. 

I. INTRODUCTION 

A. Cross-Motions for Summary Judgment 

As outlined above, both parties filed motions for summary judgment on January 30, 

2015. It is well established that "[b]oth parties may seek summary judgment in the same action" 

pursuant to Civ. R. 56(a). Steven Baicker-McKee, et al., Federal Civil Rules Handbook, 1120 

(West Publishing 2012). Even when cross-motions are filed, the review under Civ. R. 56 

remains the same. 

Each cross-motion must be evaluated on its own merits, with the court viewing all facts · 

and reasonable inferences in the light most favorable to the nonmoving party. 

Baicker-McKee, et al., supra, at 1127. 

.. 

To ensure a clear understanding of the court's rulings, this Order addresses only the 

FAA's Motion for Summary Judgment. A separate Order has already been filed addressing the 

Respondent's Cross-Motfon. Because certain objections were the same in both motions, the 

parties will see some duplication in this Order in rulings and explanations. 

B. Complaint and Proposed Civil Penalty 

On or about June 22,2013, the Regional Counsel for the FAA's Southern Region filed a 

Complaint with the U.S. Department ofTransportation's Office of Hearings. The FAA's 

Complaint alleged that the Respondent, a certificated aircraft repair station, performed improper 

maintenance on three different Boeing B-727 aircraft (identified as N899AA, N898AA, and 

N287SC) on or about August 2009, October 2009, and March 2010. The three Boeing B-727 

aircraft were O\vned and operated by another company, Capital Cargo International Airlines 

("CCIA"), which was a Part 121 aircraft operator. 

The FAA asserted that the Respondent'.s improper maintenance on the three Boeing B727s occurred when it worked on the Main Landing Gear ("MLG") on each of the aircraft. The 

Respondent's MLG maintenance included "reinstalling and rigging the landing gear doors." 

Page 2 of 31 
(Complaint, 2 ~ 4.) The FAA alleged that maintenance on the MLG had been improper, and that 

each time the Respondent had performed maintenance on the B-727 aircraft, it had violated three 

ofthe FARs: 14 C.F.R. § 145.205(a); 14 C.F.R. § 43.13(a); and 14 C.F.R. § 43.13(b). This 

resulted in a total of nine (9) alleged violations (i.e., 3 violations x 3 aircraft= 9 violations). 

Pursuant to 49 U.S.C. §4630l(a)-(d), the FAA proposed a total penalty of$61,875 for all nine 

(9) alleged violations. 

C. FAA's Motion for Summary Judgment 

The FAA's Motion seeks complete dispositive relief on the merits ofthe nine (9) alleged 

violations of the Federal Aviation Regulations ("FAR"), as well as the FAA's proposed total 

civil penalty of $61,875. In the alternative, the FAA seeks partial dispositive relief "as the 

evidence warrants." (Motion, 24.) 

II. STANDARD OF REVIEW FOR SUMMARY JUDGMENT 

Pursuant to 14 C.F.R. § 13.218, a party may file motions, including a motion for a 

decision on the merits, in advance of a hearing when a party asserts that there is no genuine issue 

of material fact in dispute. Pursuant to 14 C.F.R. § l3.218(f)(5), any motion for a decision on the 

merits prior to a testimonial hearing is analogous to a motion for summary judgment under Rule 

56 of the Federal Rules of Civil Procedure. Horizon Air Industries, Inc., FAA Order No. 96-24, 

n.3 (Aug. 13, 1996); Stebbins Aviation, Inc., OMS No. F AA-2000-7576-16, n.3 (Aug. 30, 2004) 

(Initial Decision). The purpose of summary judgment is "to isolate, and then terminate, claims 

and defenses that are factually unsupported." Steven Baicker-McKee, et al., supra, at 1122. 

Pursuant to Rule 56( a), a summary judgment motion may be granted if "the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter of law." See, Anderson v. Liberty Lobby Inc., 477 U.S. 242, 247-48 (1986); 

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). In addition, pursuant to Rule 56(f), 

summary judgment may also be granted to a non-moving party, after all parties have had notice 

and a reasonable time to respond. 

A fact is "material" if it is capable of affecting the substantial outcome of the litigation. 

Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at 248. A dispute is "genuine" if the 

Page 3 of 31 
evidence is such that a reasonable trier of fact could return a verdict for the non-moving party. 

See, Scott v. Harris, 5550 US 372, 380 (2007); Liberty Lobby Inc., 477 US at 248, Holcomb, 433 

FJd at 895. 

On a motion for summary judgment, all evidence and inferences are to be viewed in the 

light most favorable to the non-moving party. However, a non-moving party (e.g., the FAA 

herein answering the Respondent's Cross-Motion) may not rest upon mere denials or allegations 

in the pleadings. Pursuant to Civ. R. 56(c), (d), and (e), a non-moving party who wishes to 

proceed to trial must respond to the motion for summary judgment, and set forth specific facts 

sufficient to show there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 

(1986). See also, Citizens State Bank of Big Lake v. Transamerica Ins. Co., 815 F.Supp. 309 (D. 

Minn. 1993); Baicker-McKee, et al., supra, at 1133-34 (a non-moving party may produce 

materials, and/or cite to materials produced or not produced by the movant in resisting the 

summary judgment motion). 

Pursuant to Rule 56 (c)(l)(A), specific facts alleged by either party may be asserted by 

submitting or citing to a variety of documents and declarations. Materials submitted during 

summary judgment proceedings must be capable of being offered at trial in an admissible form. 

See, Baicker-McKee, et al., supra, at 1135. Once the moving party has established a prima facie 

case, the burden shifts to the non-moving party to show, by affidavit or otherwise, that a genuine . 

dispute of material fact remains for the fact-finder to resolve. /d. at 1134 

On a summary judgment motion, the court does not rule on the weight of the evidence. 

See Id. at 1125 (The court never weighs the evidence, evaluates credibility or makes findings on 

disputed facts in summary judgment proceedings). 

III. EVIDENTIARY RULINGS 

A. FAA's Factual Evidence in Support of Motion 

In support of its Motion, the FAA submitted thirty-five (3 5) Exhibits, identified as FAA 

Exhibits. A through II. As part of its Reply, the FAA;. also submitted three (3) Exhibits, identified l . ..· 

as FAA Exhibits PP through QQ. Additionally in its Reply, the FAA incorporated by reference 

Exhibits JJ and KK, which it had previously filed as part of its February 18, 201.5 Response to 

Page 4 of 31 
the Respondent's Cross-motion. 1 

At the March 5, 2015 Motion Conference, FAA Exhibits B through D, F-G, 1-J, L, N-Y, 

X-AA, CC-11, and PP-QQ were admitted without objection. However, the Respondent objected 

on various grounds to the admission of these eight (8) FAA Exhibits: A, E, H, K, M, W, BB, and 

JJ. The parties agreed to incorporate by reference the arguments they had made regarding Exhibit 

JJ earlier during the Motion Conference (i.e., when they had addressed the same exhibit in the 

Respondent's Cross-Motia.n). The Respondent's objection to Exhibit A was sustained and it was 

not admitted or considered. The Respondent's objeCtions to Exhibits E, H, K, W, BB, and JJ 

were overruled, and those exhibits were admitted and considered over objection. The 

Respondent's objection to Exhibit M was overruled in part, and pages 57, 58, and 59 of the 

Exhibit M were admitted over objection. The Respondent's objection to the first page of Exhibit 

M was reserved, and the FAA was given an opportunity to supplement the record to show 

whether this first page could be deemed admissible over objection. 

On March 16, 2015, the FAA filed a Supplemental Submission on Motion for Summary 

Judgment, in which it provided additional evidence to show that the first page of Exhibit M had 

been produced by the Respondent in response to an FAA discovery request. The Respondent's 

objection to the admission ofthe first page of Exhibit M is overruled. Exhibit M is admitted in its 

entirety for consideration 

B. Respondent's Factual Evidence in Opposition to Cross-Motion 

As part of its Response, the Re$pondent su\;>.mitted eight (8) Exhibits, identified as 

Exhibits 1 through 8. At the March 5, 2015 Motion Conference, Respondent Exhibits 2-6 and 8 

were admitted without objection. However, the FAA objected on various grounds to the 

admission of Respondent's Exhibits 1 and 7. 

Exhibit I was a compilation of excerpts from Mr. Becker's October 29, 2014 Discovery 

Deposition. These excerpts were primarily duplicates of the deposition excerpts submitted by the 

1 It is well-established that if a moving party introduces new evidence in a Reply brief, the non-moving party should 

be given ~n opportunity to respond. Baicker-McKee, et.al., supra, at 1143. In this proceeding, both parties filed new 

evidence with their Replies. At the March 5, 2015 Motion Conference, the parties agreed that the issues had been 

fully briefed, and there was no need to file additional responses to Reply evidence in either the FAA Motion or the 

Respondent's Cross-Motion 

Page 5 of 31 
Respondent in its Cross-Motion Exhibit 3, with some exceptions.1 The parties agreed to 

incorporate by reference the arguments they had made about Mr. Becker's discovery deposition ,J 

testimony earlier during the same Motion Conference (i.e., when they had addressed the 

Respondent's Cross-Motion Exhibit 3.) The FAA's objections to Exhibits I and 7 were reserved, 

and the Respondent was given an opportunity to supplement the record to show those two 

Exhibits could be deemed admissible over objection. 

Exhibit 7 Admissibility: On March 17, 2015, the Respondent filed Respondent's 

Supplemental Submission, in which it agreed that Exhibit 7 had been produced by the 

Respondent in response to an FAA discovery request. (R's Supp. 4.) The FAA's objection to the 

admission of the first page of Exhibit 7 is overruled. Exhibit 7 is admitted in its entirety for 

consideration. 

Exhibit 1 Admissibility: On March 17, 2015, the Respondent also reasserted in its 

Supplemental Submission that Mr. Becker qualified as an expert. (R's Supp. 2.) The Respondent 

agreed that it first identified Mr. Becker as an expert on December 12, 2014, but argued (among 

other things) that this late disclosure occurred only because the FAA had not identified Inspector 

Lipinski as an expert until December 1, 2014. (R's Supp. 3.) The Respondent also incorporated 

by reference Respondent's previously filed Cross-Motion Reply Exhibit 1-R, which was a 

February 26, 2015 Declaration by Mr. Becker. 3 To the extent that the Respondent referenced 

Exhibit I ~R to demonstrate Mr. Becker's qualifications as an expert, it is accepted and 

considered. Exhibit 1-R is not accepted, however, as additional testimonial evidence on the 

merits in opposition to the FAA's Motion, because supplemental submissions were authorized 

only to address the reserved admissibility objections to the proffered evidence. 

1. Mr. Becker's Expert Qualifications 

Pursuant.to Rule 702~ a witness may be qualified to serve as an expert if s/he is shown to 

2 For example (not inclusive), Respondent's Response Exhibit I to the FAA's Motion contains deposition pages 48-

49 and page 52, while Respondent's Cross-Mo,ion Exhi.bit 3 dpes not. Respondent's Response Exhibit I does not 

contain pages 56-58 or 63-67 or 70, although these pages are contained in the Respondent's Cross-Motion Exhibit 3, 

etc. 

3 The Respondent's March I 7, 20 I 5 Supplemental Submission asserted that Exhibit 1-R was attached, but did not 

actually provide any attached exhibit (R's Supp. 2). Nevertheless, Exhibit I -R had been filed on February 27, 2015 

and was available for court review. 

Page 6 of 31 

. I 
have "specialized knowledge" in a subject. Fed. R. Evid. 702. The witness may be qualified by 

"knowledge, skill, experience, training, or education." /d. As part of its objection, the FAA 

argued that Mr. Becker was not now, and had never been, a certified Airframe and Powerplant 

mechanic, had never performed maintenance work on any B-727, and therefore did not have the 

necessary expertise to testify about aircraft maintenance or repair issues. 

In response, the Respondent pointed out (among other things) that Mr. Becker held an 

Aeronautical Engineering degree and had substantial work experience as a Design and Flight 

;· . -.r:- : 

engineer for various aircraft (Exh. R-1, ~A-C). Mr. Becker also worked in flight engineering and 

aircraft maintenance management-which included developing aircraft repair instructions and 

training aircraft inspectors. (Exh. R-1, ~D-E.) 

The FAA's objection to Mr. Becker as an expert on the basis of qualification is overruled. 

There is no regulation in the F ARs that requires an expert witness to hold an Airframe and 

Powerplant certification in order to testify about aircraft maintenance and repair issues. The 

question of expert qualification in a subject is not based on who is best qualified to testify or 

what "precise" qualifications are offered, but rather whether a witness is competent to offer 

specialized knowledge in a certain subject. I McCormick On Evid. § 13 (7th ed. 20 15); 

American Auto. Ins. Co: v. Omega Flex, Inc., No. 4:11CV00305 AFG, 2014 WL 859760 (E.D. 

Mo., March 5, 2014) (expert permitted to offer testimony within the bounds of his 

qualifications); Holmgren v. Massey-Ferguson, Inc., 516 F.2d 856 (8th Cir. 1975) (witness 

allowed to testify about machinery design principle§, even though he had not previously 

manufactured or designed machines). 

Based on the evidence presented, Mr. Becker has demonstrated by education and work 

experience that he is qualified to serve as an expert witness in the fields of aircraft engineering 

and design, as well as in the subjects of instructions for airplane maintenance and repair, 

oversight ofF AA-compliant aircraft maintenance programs, and aircraft inspection training. 

2. Requested Exclusion of Mr. Becker as an Expert 

The FAA objected to the presentation of expert testimony by Mr. Becker in Exhibit 1 on 

multiple grounds, including: a) Mr. Becker had not been timely identified as an expert; and b) 

any expert testimony by Mr. Becker had been proffered for the limited purpose of rebutting 

Page 7 of 31 
Inspector Christensen's testimony-who would not be testifying. The FAA also asserted the · 

Respondent had failed to meet its reliability burden,:in Mr. Becker's purported expert testimony. 4 

At the March 5, 2015 Motion Conference, in response to the FAA's objections to Mr. 

· Becker's expert testimony, the Respondent asserted that Mr. Becker's expertise had been 

generally known. In addition, the Respondent had always intended to utilize Mr. Becker to 

"rebut" the testimony of all the FAA's disclosed expert witnesses. 

A review of the record shows that the Respondent did assert, in an earlier motion, that 

Mr. Becker was offered "to rebut any expert testimony offered by the FAA's late-disclosed 

expert witnesses." (1/5115 Respondent Answer to Complainant's Motion to Compel and 

Exclude, 7.) However, at the time of this assertion, the Respondent had withdrawn its motion to 

exclude the expert testimony of Inspector Lipinski, Inspector Evans, and Inspector Gasche 

(12/16/14 Respondent's Rule 37 Declaration and Renewal ofMotion for Sanctions, 2 fn. 2). 

Thus, the Court addressed only the testimonial consequences of calling Mr. Becker as a 

"rebuttal" witness to FAA Inspector Christensen in··its February 11, 2015 Order. 5 

The issue of timely disclosure of experts was addressed comprehensively in the February 

11, 2015 Order, and will not be fully repeated here. In essence, timely expert witness disclosures 

increase the quality of trials by allowing attorneys to better analyze their case, and to prepare for 

cross-examination. 8A Fed. Prac. & Proc. Civ. § 2031.1 (3d ed. 2015). The duty to timely 

disclose a witness as an expert is not excused when a witness who will testify as a fact witness 

and as an expert witness is disclosed only as a fact witness. !d. A party may not evade expert 

witness disclosure "by simply calling an expert witness under the guise of a layperson." /d. Nor 

may a party avoid timely expert disclosure by asserting that a witness in the party's case-in-chief 

4 Among other things, the FAA adopted by reference the arguments it previously had made about Mr. Becker's 

testimony in its February 18, 2015 Cross-Motion Response. (Reply, 4.) For example the FAA argued that Mr. 

Becker's expert testimony was not reliable because portions were based on a speculative "telephone" game of 

hearsay (FAA Response, 2), implausible suppositions and "short cuts" (FAA Response, 6), problematic, unverifiable 

maintenance record entries (FAA Response, 8), and by ignoring facts and data in the record (FAA Response, 9-12). 

The FAA also asserted that Mr. Becker's testimony was,unreliable because it was inconsistent with his own deposed 

testimonial statements (FAA Response, 15) and his prior admissions to the FAA (FAA Response, 22). 

s The record in this proceeding shows that on February II, 2015 an Order Granting Respondent's Motion to 

Exclude, and Granting/Denying Other Motions was filed. Among other things, this Order excluded Inspector 

Christensen as a witness, and deemed the FAA's December 19,2014 Motion to Exclude Mr. Becker as an expert 

witness a moot issue, since the Respondent had offered Mr. Becker only as a "rebuttal" witness to Mr. Christensen. 

(Order, 10 ~ 3(a) and 14 (6).) Neither party filed for reconsideration of this February II, 20 I 5 Order. 

Page 8 of 31 
is merely a "rebuttal" witness.6· 

In the case herein, the FAA is correct that the Respondent did not timely disclose Mr. 

Becker as an expert witness. At the same time, the Respondent is correct that the FAA did not 

timely disclose Inspector Lipinski, Inspector Evans, and Inspector Gasche as expert witnesses. 

Instead, each party timely disclosed these witnesses as fact witnesses, but failed to also timely 

identify them as expert witnesses. 

In short, both parties erred in the timing of their expert disclosures. Nevertheless, both 

parties had access to these four witnesses early in the proceedings, and both Inspector Lipinski 

and Mr. Becker were deposed during discovery. The record also demonstrates that the FAA was 

aware ofMr. Becker's potential expert status, since Mr. Becker's October 29, 2014 discovery 

deposition included FAA inquiry about Mr. Becker's specialized education and work history, as 

well as inquiry regarding his opinions on the issues of aircraft maintenance and repair, which is a 

topic of expertise. 

The problem, however, is that the Respondent produced Mr. Becker for the FAA 

discovery deposition as a Rule 30(b)(6) company representative, not as an expert witness. 7 It also 

appears undisputed that Mr. Becker has never produced an expert report, which was required and 

due no later than December 12, 2014. (9/30/14 Order.) As of the date ofthis Order, it is still 

6 In assessing whether a party may use an expert witness, not previously identified as an expert witness, to rebut the 

opposing party's expert, courts must consider ~hether the !Vit;;e.ss is truly a "rebuttal" witness. Rebuttal must be 

kept in perspective; it is not to be used as a continuation of the case-in-chief. Cates v. Sears, Roebuck & Co .. 928 

F.2d 679, 685 (5th Cir. 1991 ). In Morgan v. Commercial Union Assurance Companies, 606 F.2d 554 (5th Cir. 

1979), the pretrial schedule required disclosure of all witnesses except rebuttal witnesses. At trial the defendant 

attempted to introduce the testimony of an unidentified witness as "rebuttal" to the plaintiffs witness. The court 

held that "a defense witness whose purpose is to contradict an expected and anticipated portion of the plaintiffs case 

in chief can never be considered a 'rebuttal witness."' /d. at 556; see also, Wong v. Regents of Univ. of Calif, 410 

F.3d 1052, I 060-61 (9th Cir. 2005) (district court appropriately excluded expert identified late because "the 

necessity of the witness" could have "been reasonably anticipated at the time the lists were exchanged"); Coastal 

Fuels of Puerto Rico, Inc. v. Caribbean Perro/eum Corp., 79 F.3d 182,202-03 (lst Cir. 1996) (exclusion is proper 

for experts identified late as "rebuttal"). Previously undisclosed "rebuttal" expert testimony is "limited to new 

unforeseen facts brought otit in the other side's case." In re Presideni's Casinos, Inc., No. 02~53005-659, 2007 WL 

7232932, at *2 (Bankr. E.D.Mo. May 16, 2007) (quoting Cates v. Sears, Roebuck & Co .. 928 F.2d 679, 685 (5th 

Cir. 1991)). 

7 During the deposition, -the Respondent's attorney made objections to some inq~i~ as being outside the scop~ of 

Rule 30(b)(6) deposition. (e.g., Exh. B, 40.) He also objected to the FAA exammmg Mr. Becker on some top1cs of 

expertise, and stated to Mr. Becker: "I don't know that your understanding of what a mechanic would do is relevant, 

but if you can, answer the question." (Exh. I, 113.) 

Page 9 of 31 

:-
unclear the exact scope of expert testimony the Respondent seeks to ultimately offer through Mr. 

Becker, and what "reliable principles and methods';.;under Fed. R. Evid. 702(d) might support his 

expert opinions. 

a) Four Factor Test 

Federal courts have often applied a four factor test to "determine whether exclusion of 

evidence is the appropriate sanction for failures to comply with discovery duties: '(I) the 

prejudice or surprise of the party against whom the excluded evidence would have been 

admitted; (2) the ability of the party to cure that prejudice; (3) the extent to which allowing the 

evidence would disrupt the orderly and efficient trial of the case or other cases in the court; and 

(4) bad faith or willfulness in failing to comply with a court order or discovery obligation.'" In re 

Asbestos Products Liability Litigation (NO. IV), No. 09-CV-74351, 2012 WL 661673, at *2 

(E.D.Pa. Feb. 8, 2012) (quoting Nicholas v. Pa. State Univ., 227 F.3d 133 (3d. Cir. 2000); see 

also, Lanard Toys, Ltd. v. Novelty, Inc., 375 Fed. Appx.·705, 713 (9th Cir. 2010) (citing David v. 

Caterpillar, Inc., 324 F.3d 851, 857 (7th Cir. 2003)). Each of these four factors are addressed 

below. 

b) Test Factors Applied 

ill Factor No. I (Surprise or prejudice): 

Clearly the FAA would not be surprised.if Mr. Becker was limited to the testimony he 

provided in his October 29, 2014 deposition. The FAA would be surprised and prejudiced, 

however, if Mr. Becker was allowed to expand on this testimony, since the FAA has not received 

an expert report (identifying the facts and opinions upon which Mr. Becker relies in giving 

expert evidence), nor has the FAA had a chance to depose Mr. Becker as a proffered expert. 

ill} Factor No. 2 (Possible Cure(s)): 

Could the prejudice to the F AAfor late disclosure be cured? One option is to allow the 

Respondent to offer Mr. Becker's deposition testimony only as lay testimony, since Mr. Becker's 

deposition was taken as a fact witness. Another option would be to direct Mr. Becker toyroduce 

an expert report, and allow the FAA an:opportunity. tore-depose Mr. Becker as an expert. A third 

option would be to force the FAA to respond to Mr. Becker as an expert, without the benefit of 

an expert report or ari. expert deposition. Given the lack of time before the scheduled Hearing, 

these options lead into the third test factor. 

Page 10 of 31 
(iii) Factor No. 3 (Disruption to the trial proceedings): 

Would curing the prejudice to the FAA disrupt the orderly and efficient trial of this case? 

The hearing is currently set to begin on May 5, 2015, which is approximately one (I) month 

from the date of this Order. In certain cases, one month might be sufficient time to allow another 

deposition to be taken. But in this case, that is unlikely. The parties have demonstrated that they 

have difficulty in scheduling and taking depositions in this proceeding. Even if the Respondent 

produced an expert report within two (2) days· of this Order, the parties would still need to 

coordinate their calendars, hire a court reporter, and potentially travel to an out-of-state 

deposition site so that the FAA could take Mr. Becker's deposition testimony. Once the 

deposition was taken, the FAA would need to reassess its trial material, and make a . 

determination about what, if any, additional expert testimony or documentation would be needed 

for its own case-in-chief or rebuttal. Even if it ·is assumed all this could be done within three 

weeks of the hearing date, it would be disruptive to trial preparation for both sides, and certainly 

unfair to demand of both parties so close to the hearing date. The other option would be to 

continue the hearing date into the year 2016, which does not-in any way-serve the interests of 

the efficient administration of this case. 

(iv) Factor No. 4 (Bad Faith or Unwillingness): 

The record demonstrates that both parties in this case have failed to meet certain courtordered deadlines. There has also been ~ conti~uing,practice by both parties to identify witnesses 

as fact witnesses and fail to identify the same witnesses as experts. There is no evidence that bad 

faith was involved in this action. 

c) Rule 702 Expert Exclusion Granted 

It should be noted that much of Mr. Becker's proffered deposition testimony (Ex h. I) was 

fragmented, difficult to follow, and did not clearly identify or attach the deposition exhibits or 

data that Mr. Becker was reviewing. Substantial portions of Exhibit 1 did not offer expert 

testimony or analysis, but instead offered fact witness testimony, fact opinion, general 

assumptions or suggestions, and speculation. In addition, although Mr. Becker did offer technical 

opinions about various topics, he did not provide them in conjunction with a discussion of 

general industry standards or methods, to demonstrate that he had "reliably applied the principles 

Page 11 of 31 

• ! • 
and methods" of expert knowledge and· analysis to the facts of the case. Fed. R. Evid. 702(c) and 

(d).) 

It was undisputed that Mr. Becker was deposed on October 29, 2014, as a Rule 30(b)(6) 

company representative. The discovery deposition was scheduled as a "fact witness" deposition. 

During the deposition, the Respondent's attorney made objections to some FAA inquiry as being 

outside the scope of a Rule 30(b)(6) deposition. (see, e.g., Exh. B, 40.) He also objected to the 

FAA examining Mr. Becker on some topics of expertise, and stated to Mr. Becker: "I don't know 

that your understanding of what a mechanic would do is relevant, but if you can, answer the 

question." (Exh. 1, 113.) Mr. Becker did answer one question utilizing his "engineering 

background" (Exh. 1, 87), but a majority of his responses appeared based on his work duties as 

the Respondent's Director of Quality Assurance and Training, which included his review, 

analysis, and opinions regarding company investigations and aircraft maintenance records. The 

selected portions of Exhibit 1 do not contain any int:ormation about the "reliable principles and •;_ ;·· 

methods," Fed. R. Evid. 702(d), that Mr. Becker is required to utilize in order to present reliable 

expert testimony. 8 

Based on the totality of the record herein, the FAA's objections to allowing Mr. Becker's 

testimony to be admitted ?S expert testimony in the Respondent's Response are sustained. 

d) Deposition Testimony Allowed under Limited Rule 701 Lay Opinion Exception 

Nevertheless, it is clear that Mr. Becker, as the Respondent's Rule 30(b)(6) fact 

representative, provided some deposition testimony that involved technical expertise, and the 

FAA has had an opportunity to consider and respond to that testimony. 

In the year 2000, in response to a split in court rulings, as well as the discussion and 

decision in Asplundh Mfg. Div. v. Benton Harbor Engineering, 57 F.3d 1190 (3rd Cir. 1995), the 

Advisory Committee for the Federal Rules of Evidence amended Rule 701 to limit lay opinion 

8 1n addition to expert qualifications, Rule 702 requiresthat a~·expert's testimony be deemed reliable before it is 

admined and considered. The expert's testimony must be "based on sufficient facts or data," Fed. R. Evid. 702(b, be 

the product of"reliable principles and methods," Fed. R. Evid. 702 (c), and the expert must show that s/he has 

"reliably applied the principles and methods to the facts of the case." Fed. R. Evid. 702(d). Pursuant to Rule 702 and 

104, the proponent of the proffered testimony has the burden of establishing that the pertinent reliability 

requirements are met, by a preponderance of the evidence. Fed. R. Evid. 702, Advisory Committee Notes, 2000 

Amendments. I McCormick on Evid. § 13 (7th ed. 20 IS). 

Page 12 of 31 
testimony to common knowledge matters. Testimony "cannot be admitted under Rule 701 if it is 

based on scientific, technical, or other specialized knowledge within the scope of Rule 702." (3-

701 Federal Rules ofEvidence Manual,§ 701.02). 

In the amenqment notes, however, the Advisory Committee left open a limited exception, 

that allowed a lay witness with some specialized knowledge, by virtue of his or her daily 

activities, to still provide "lay" opinion testimony about such specialized knowledge, so long as 

such opinion was based on knowledge and a reasoning process typically utilized by that Jay 

witness in his/her daily activities. Thus, the "common knowledge" lay witness could testify, on a 

limited basis, to some specialized daily activities that did not rise to the level of expert 

knowledge. Fed. R. Evid. 701. Advisory Committee Notes (2000 Proposed Rules) (e.g., a 

business owner may testify about the projected profits of his business). 

Based on the record herein, Mr. Becker's deposition testimony may be admitted as 

specialized Jay opinion testimony under the limited exception of Rule 70 1, which was offered in 

his capacity as Respondent's Director of Quality Assurance and Training. 

IV~ ALLEGED REGULATORY VIOLATIONS 

As previously noted,the FAA alleged that the Respondent's MLG maintenance had 

included improperly "reinstalling and rigging'Uhe main landing gear doors on three Boeing B727 aircraft on or about the following dates: August 2009 (Aircraft N899AA), October 2009 

(Aircraft N898AA), and March 2010 (Aircraft N287SC). (Complaint.) The FAA alleged that on 

each occasion of aircraft maintenance, the Respondent had violated three ofthe FARs: 14 C.F.R. 

§ 145.205(a); 14 C.F.R. § 43.13(a); and 14 C.F.R. § 43.13(b). 

Section 145.205(a) states: 

(a) A certificated repair station that performs maintenance, preventive 

maintenance, or alterations .for an air carrier or commercial operator that has a 

continuous airworthiness maintenance program under part 121 or part 135 

must follow the air carrier's or commercial operator's program and applicable 

sections of its maintenance manual. 

14 C.F.R. § 145.205(a) (2014). 

During the March 19,2015 Motion Conference, this Court noted that Section 145.205(a) 

Page 13 of 31 
appeared to be the primary regulatory violation regarding the three (3) alleged improper 

maintenance incidents in this case, since Section ~45.205(a) contained both specific languagenot 

included in either Section 43. 13(a} or (b), as well as broad language that addressed the safety 

requirements contained in both Section 43.13(a) or (b). 

For example, the maintenance manual requirement contained in Section 145.205(a) 

requires a repair station to "follow the air carrier's ... applicable sections of its maintenance 

manual." The first part of Section 43.13(a) also requires "each person"9 who perfonns 

maintenance to follow the applicable maintenance manual or manufacturer's instructions: 

(a) Each person performing maintenance, alteration, or preventive maintenance on 

an aircraft, engine, propeller, or appliance shall use the methods, techniques, and 

practices prescribed in the current manufacturer's maintenance manual or 

Instructions for Continued Airworthiness prepared by its manufacturer or ... ,, 

14 C.F.R. § 43.13(a) (2014) (emphasis added). 

As noted earlier herein, the parties agreed that CCIA had a CAMP that the Respondent 

was required to follow. This CAMP utilized Boeing's B-727 maintenance manual. Thus, the 

applicable regulatory language in Section 43.13(a).mirrored the regulatory requirements of 

Section 145.205(a). The alternative contained in Section 43.13(a) was not applicable to this 

proceeding. 10 

In addition, Section 43.13(b) provides: 

(b) Each person maintaining, or altering, or performing preventive maintenance, 

shall do that work in such a manner and use materials of such quality, that the 

9 Both Section 43.13(a) and Section 43.13(b) refer to "a person" performing maintenance. The word "person" is 

broadly defined by the FARs, and includes a company or a corporation. 14 C.F.R. § 1.1 (Definitions). 

10 The alternative language in Section 43.13(a) addressed incidents where no maintenance manual or instructions are 

available. This alternate language states that a person may also perform maintenance as follows: 

(a) ... or [by using] other methods, techniques, and practices acceptable to the Administrator, except 

as noted in §43 .16. He shall use the tools, equipment, and test apparatus necessary to assure 

completion of the work in accordance with accepted industry practices. lfspe~ial equipment or test 

apparatus is recommended by the manufacturer involved, he. must use that equtpment or apparatus or 

its equivalent acceptable to the Administrator. 

Section 43.13(a) (20 15). 

Page 14 of 31 
condition of the aircraft, airframe, aircraft engine, propeller, or appliance worked 

on will be at least equal to its original or properly altered condition (with regard to 

aerodynamic function, structural strength, resistance to vibration and 

deterioration, and other qualities affecting airworthiness. 

14 C.F.R. § 43.13(b) (2014). 

Neither party addressed the language of this regulation. In the absence of discussion, it 

is reasonable to assume that the aircraft's "original" condition is the aircraft's manufactured 

\ 

condition. Assuming subsequent maintenance on the original aircraft was performed pursuant to 

the manufacturer's recommendations, the maintained or repaired aircraft would then remain 

airworthy and functional in a "properly altered". condition. Thus, the requirements of Section 

43.13(b) also appear to be included within the scope of Section 145.205(a). As a result, the 

primary discussion in this Order will focus on the regulatory language contained in Section 

145.205(a). 

V. DISCUSSION I 

All evidence and arguments have been considered. Because of the volume of materials 

submitted, only certain matters will be highlighted and discussed.' 

A. Undisputed Facts 

Most ofthe facts regarding the Respondent's compliance with Section 145.205(a) were 

not in dispute. The Respondent admitted that i.t was a certificated repair station (Answer 1, ~ 2). 

The three (3) identified B-727 aircraft had been manufactured by Boeing. On or about.the dates 

alleged, the Respondent performed maintenance on the three (3) identified B-727 ai~craft 

manufactured by Boeing. (Answer 1-2 ~ 3(a), (b), and (c).) At the time the maintenance was 

performed, each Boeing B-727 aircraft had been owned and operated by a Part 121 aircraft 

operator, Capital Cargo International Airlines ("CCIA"). (!d.) 

CCIA had a Continuous Airworthiness Maintenance Program ("CAMP") which the 

Respondent was supposed to utilize and follow. (Answer J, ~ 5.) CCIA's CAMP required that 

Boeing's B-727 Aircraft Maintenance Manual ("AMM") be followed in performing maintenance 

on CCIA' s B-727 aircraft. The maintenance performed on each of the three different Boeing B727 aircraft (identified as N899AA, N898AA, and N287SC) on or about August 2009, October 

Page 15 of 31 
2009, and March 2010 had involved replacing the Main Landing Gear ("MLG"). This MLG 

maintenance included "reinstalling and rigging the landing gear doors." (Answer, 2 ~ 4( a), (b), 

and (c).) 

B. Disputed Issue 

The substantive law (i.e. 14 C.F.R. §§ 145.205(a)) identifies the four material facts that 

are critical: I) whether the Respondent was a certificated repair station; 2) whether the 

Respondent performed maintenance on· the aircraft; 3) whether the maintenance was performed 

for an air carrier that has a CAMP under part 121; and 4) whether the Respondent used and 

followed Boeing's B-727 Aircraft Maintenance Manual ("AMM") in performing that 

maintenance. The first three facts are undisputed. 

Thus, the only issue in dispute is the fourth material fact: whether the Respondent had 

complied with CCIA's "program and applicable sections of its maintenance manual," (14 C.F.R. 

§ 145.205(a)), when it had reinstalled and rigged the MLG doors on each Boeing B-727 aircraft 

in August 2009, October 2009, and March 2010. 

C. Analysis 

As noted e.arlier herein, each cross-motion for summary judgment must be evaluated on 

its own merits. Thus, the evidence presented by both parties in the FAA's Motion is limited to 

the exhibits marked, admitted, and deemed material as part of this Motion. Any testimonial or 

documentary evidence presented by the parties in the Respondent's Cross-Motion, which was 

not also submitted (or referenced) as part of the FAA's Motion, was not considered. Evidence 

was deemed material if it was reliable and addressed the issue in dispute. 

I. Short Review ofF AA' s Proffered Evidence 

Because of the volume of materials presented, only highlights of certain material evidence 

will be discussed. In its Motion, the FAA asserted that no genuine issue of material fact existed, 

and that it was entitled to judgment as a matter of law. (Motion, 1.) 

The FAA submitted multiple pieces of material evidence, including FAA Inspector 

Lipinski's February 17, 2015 Declaration (Exh. JJ), Inspector Lipinski's December 12, 20 l 0 . . 

Memorandum (Exh. 1), FAA Inspector Gasche's September 28, 20 I 0 Memorandum (Ex h. J), 

CCIA 's October 25, 2010 Investigation Report (Exh. H), the Respondent's March 21, 2011 

Page 16 of 31 
Investigation Report (Exh. HH), as well as selected portions of Mr. Jeffrey Becker's October- 29, 

20 I 4 discovery Deposition (Exh. KK). 

As part of his testimonial evidence, Inspector Lipinski stated the following: 

My personal observations of the aircraft in May 20 I 0 included direct observation 

of improperly placed shimming washers and damage to the flying doors, flap 

track fairings, and other components that was [sic] caused by improper rigging. 

The Capital and AMES maintenance records, plus my conversations with Capital 

and AMES managers, and written statements to me from Capital and AMES, all 

confirmed that the landing gear and flying doors had not been properly installed. 

(Exh. JJ, 3 ~ 10.) 

Inspector Lipinski opined that the damage discovered during and after the May 20 1 0 FAA 

inspection demonstrated that the Respondent had not fully complied with Boeing's AMM when 

it had initially performed the MLG maintenance on each Boeing B-727 aircraft. (Exh. JJ, 4 ~ 15.) 

Even if AMM 32-12-111401 or another AMM section had not been specifically referenced in the 

AMM section on regarding the MLG of an aircraft, a mechanic working on a B-727 was still 

expected to kflow other sections'ofthe AMM, as well as when and how to apply other AMM 

sections during a maintenance operation. (Exh. KK, 3-4 ~ 12 and~ I3) .. 

Inspector Lipinski acknowledged that each aircraft had been used after the Respondent 

had performed the MLG maintenance. Nevertheless, Inspector Lipinski testified that the damage 

and problems to the MLG on each aircraft were not "wear and tear" related. (Exh. JJ, 4 ~ 14; 5 ~ 

24; 7 ~ 30; 8 ~ 42.) He opined that it was highly unlikely that intervening maintenance had 

caused the damage (Exh. JJ, 7-8 ~ 36-38). 

In addition to Inspector Lipinski's testimonial statements, the FAA offered FAA 

Inspector Gashe's September 28, 2010 Memorandum, in which he reported that he had met 

Inspector Lipinski at the Toledo, Ohio airfield on May 26, 2010, and performed a "walk around" 

inspection of all three Boeing B-727 aircraft with him. (Exh. J, 1.) 

Inspector Gashe was "qualified on the B-727" and had "12,000 flight hours of experience 

in the B-727 aircraft." (Id.) He testified that each aircraft inspection revealed damage to the 

"right main gear door." (!d.). 

• ·J 

[O]n aircraft number N898AA we found thai the right main gear door was out of 

Page 17 of 31 
alignment, and showed rubbing at the hinge. We found the same problem on 

aircraft N899AA, and the left gear piano hinge pin was coming out. In both cases 

the gear door was damaged and binding on the flap track fairing cover. Later that 

day we found the same gear door problem on aircraft number N287SC. Also on 

aircraft N287SC the anti-skid conduit was tied to the front of the main landing 

gear not tied to the side of the main landing·gear. 

(Inspector Gashe, Exh. J, 1.) 

On June 10, 2010, approximately three weeks after the FAA's May 2010 inspection, the 

Respondent implemented a revised training program on B-727 MLG Door installation. 11 The 

introductory slide in this program did not specifically acknowledge fault by the Respondent, but 

it did assert that there were suspected problems: 

An AMES, Inc. customer has recently experienc~d several instances of loose, missing and 

worn hardware found in the B-727 Main Landing Gear Wing Doors in aircraft which had 

undergone heavy maintenance ... It is suspected that the doors may have been improperly 

rigged by Maintenance Technicians during a heavy check and signed off by Inspection. 

This training module will highlight the proper maintenance procedures for the removal 

and installation of the B-727 Right or Left MLG Wing Door. 

Exh. QQ, I. 

The FAA also proffered CCIA's October 25, 2010 Investigation Report (Exh. H). This 

was authored by Mr. Benjamin Buck, CCIA's Chief Inspector, approximately four ( 4) months 

after the Respondent's June I 0, 20 I 0 training program was implemented. Mr. Buck reported that 

the results of an internal company investigation, conducted at the Respondent's facility after the 

May 20 l 0 FAA inspection, demonstrated that the Respondent had "misrigged" the MLG doors 

on the all three aircraft. (Exh. H, 1-2). 

During the inspection on all 3 aircraft at AMES' ILN facility, all had common 

issues: improper rigging of the flying doors (left hand and right hand), 

loose/missing hinge pins, improper stackingtofthe hinge washers and missing 

safeties (cotter pins). These items in turn caused numerous gouges. Aircraft 

N287SC was found to have the right hand MLG conduit pinched near the trunion 

due to improper routing. A-checks had been complied with at stations and the 

damage had gone un-noticed by personnel. These stations included personnel 

from CCIA and AMES. 

11 The Respondent did not object to the admission of Exhibit 00. It should be noted, however, that this type of 

information appears to fall within the scope of Rule 407, which prohibits its use as proof of culpable conduct. 

Exhibit 00 has been therefore been considered as proof that the Respondent and Mr. Becker were aware in June 

2010 that there were allegations that the Respondent had performed both maintenance misrigging and improper 

inspection sign off. 

Page 18 of 31 
(Exh. H, 2.) 

CCIA's internal investigation, which had occurred at the Respondent's facility and 

involved Respondent personnel, further found that the Respondent's improper rigging of the 

MLG doors had occurred because the Respondent had failed to follow the "supplied and 

approved" Boeing B-727 AMM when it had installed the MLG on each aircraft. (Exh. H, 2). 

The aircraft flying doors were improperly installed and rigged and not in 

compliance with the authorized Operations Specifications D-72 paragraph issued 

for approval of the CCIA CAMP and AMM. AMES did not follow the supplied 

and approved 727 AMM procedures. AMES has responded to this finding with a 

modified training program. 

(Exh. H, 2.) 

Approximately five (5) months later, on March 21, 2Ul 1, the Respondent sent a Letter to 

Inspector Lipinski regarding the allegedly improper B-727 MLG installations. (Ex h. HH, 1 ). 

This letter was authored by Mr. Jeffrey Becker, the Respondent's Director of Quality Assurance 

and Training. In it, Mr. Becker stated that after the FAA's May 2010 inspection, the Respondent 

had "initiated a very detailed investigation to review all aspects of the issue." (Jd.) . .:t 

The details of the investigation and results have been sent to you by CCIA in a 

letter dated October 25,2010 in response to your letter dated October 4, 

2010 ... We worked very closely with (CCIA) ... to put a corrective action plan 

together that would prevent the reoccurrence for both our operations. 

(Exh. HH, 1.) 

In this March 21,2011 Letter, Mr. Becker also adopted by reference CCIA's Corrective 

Action Reports ("CARs") Nos. QAACVG004 (i.e., Exh. P, re: Boeing N899AA), QAACVG005 

(i.e., Exh. V, re: Boeing N898AA) and QAACVG006 (i.e., Exh. EE, re: Boeing N287SC). These 

CARs reported that following the May 2010 FAA inspection CCIA mechanics conducted further 

evaluation and had found that the MLG had not been properly installed. For N899AA, the "hinge 

assembly" on the MLG doors had not been properly installed in compliance with Boeing's 

Standard Process (BAC 5018, pg. 34). (Exh. P, 1-2). For both N898AA and N287SC, the right 

hand MLG doors had been improperly _rigged (Exh. P, l; Exh. EE, 1.) causing "play and 

· damage" to the door fairings. (Id.) 

Page 19 of 31 
As part ofCCIA's CARs, the Respondent was given an opportunity to provide responses. 

On July 2, 2010 Mr. Becker signed CARQAACVG005 regarding N898AA, in which he 

asserted (among other things) that the Respondent had developed and incorporated the contents 

of the B-727 MLG Wing Door Training Module into its program, with the goal of increasing 

"awareness for 727 door rigging." (Exh. V, 2.) That same day, on July 2, 2010, Mr. Becker 

signed CAR QAACVG004 regarding N899AA, in which he agreed that the technician and 

inspector had been "unaware that Boeing had a Standard Process (BAC 518, pg. 34)" for 

ensuring MLG door hinge pins were secured. (Exh. P.) Mr. Becker re-asserted that the 

Respondent's newly developed B-727 MLG Wing Door Training Module would address the 

problem so that there would be no further incidents. (Exh. P, 1-2.) 

In its Motion, the FAA acknowledged that the Respondent had alleged that intervening 

maintenance on a tire, performed by someone else, had caused the MLG improper rigging on 

Boeing N287SC. (Exh. B, 42.) The FAA submitted a June 8, 20 I 0 Letter that CCIA had sent to 

FAA Inspector Evans, reporting on its investigation of this specific allegation. (Exh. BB.) This 

letter, signed again by CClA's Chieflnspector, Mr. Buck, stated that CCIA had examined all the 

aircraft records for Boeing N287SC, and found (among other things) that no intervening 

maintenance on the Boeing N287SC right hand MLG, after the Respondent's MLG installation, 

could have accounted for the missing tubular bearing where the wing door actuation rod 

attached. (/d.) 

In addition to this evidence, the FAA also offered portions of Mr. Becker's October 29, 

2014 deposition testimony, in which Mr. Becker testified that he had not spoken to any of the 

Respondent's aircraft technicians or inspectors about the Respondent's MLG installations on the 

three B-727 aircraft since the Respondent had performed its initial investigation .. (Exh. B, 41.) 

When he had spoken to them, early in the investigation, the technicians and inspectors had no 

personal recollection of the door rigging and inspection work they had performed. (Exh. KK, 

40.) All they could do is look at the maintenance records they had created and signed. (Id., 41.) 

Mr. Becker testified that he did not recall the specific results of the Respondent's own internal 

investigation after the FAA's May 2010 inspection. (Exh. KK, 41 (lines 19-25)). He agreed that 

prior to his employment with the Respondent, he had had no prior experience working with 

Boeing B-727 aircraft. (Exh. B, 9.) He also agreed that his company had never worked on any 

Page 20 of 31 
CCIA B-727 aircraft prior to its first MLG installation on CCIA's Boeing N899AA in August 

2009. (Exh. B, I 0.) 

However, Mr. Becker then generally speculated that the aircraft MLG damage found by .. 

the FAA in May 2010 could have been.the result of wear or tear (and/or in the instance of 

Boeing N287SC, intervening tire change maintenance). (Exh. KK, 47 (lines 6-1 0), 100 (lines 17-

18 and 22-24), 124 (lines 3-8)). Mr. Becker also opined that much of the discovered MLG 

damage on each aircraft had been "minor," and therefore it had not impacted any of the three (3) 

aircraft's airworthiness. (Exh. KK, 102 (lines 17-18 and 20-21). Mr. Becker also emphasized that 

there had been a passage of time between when the MLG maintenance on each aircraft had had 

been performed, and the May 201 0 date when the FAA had discovered the MLG damage (Exh. 

KK 101 (lines 22-23), 115 (lines 20-21 ), 116 (lines 9-1 0)). 

2. The FAA Met Its Initial Burden of Proof 

As noted earlier herein, the purpose of summary judgment is "to isolate, and then 

terminate, claims and defenses that are factually unsupported." Baicker-McKee, et al., at 1122. 

The mere existence of disputed facts does not defeat summary judgment The facts in the dispute 

must be material, i.e., capable of affecting the substantial outcome of the litigation. Holcomb, 

supra, 433 F.3d at 895; See Liberty Lobby, Inc., 477 U.S. at 248. In addition, facts presentedbut which are not supported by the evidence--do not create a genuine issue of material fact. 

In ruling on motions for summary judgment federal courts have held that a fact or 

facts are material if they constitute a legal defense, or if their existence or 

nonexistence might affect the result of the action, or if the resolution of the issue 

they raise is so essential that the·party against whom it is decided cannot prevaiL 

10A Charles Alan Wright et al., Federal Practice and Procedure§ 2725 (3d ed. 2014) (footnotes 

and citations omitted). 

In its Motion the FAA presented evidence to establish the material facts-1) the damage 

d~scovered on each aircraft during the May 2010 inspection; 2) expert opinion that this damage 

was caused by improper instaBation and rigging of the flying doors; 2) the post-inspection 

corrective maintenance records which showed that the damage was the result of improper 

installation and rigging of the flying doors; 3) the Respondent admissions that it had performed 

improper maintenance not in accordance with the AMM, and 4) that the Respondent failed to 

Page 21 of 31 
follow CCIA's program and applicable sections ofthe AMM in performing the MLG 

maintenance on N898A, N899A, and N287SC., supported by the evidence, which demonstrated 

that there was no genuine issue of material dispute for trial. Even when viewed in a light most 

favorable to the non-moving party (i.e, the Respondent herein), these material facts demonstrated 

there was no genuine issue of dispute for trial. Thus, the FAA met its initial burden of proof . 

. 3. Short Review of Respondent's Opposition Evidence 

Once the moving party has met its initial burden of proof, the burden shifts to the nonmoving party to show, by affidavit or otherwise, that a genuine dispute of materia] fact remains 

for the fact-finder to resolve. See, Baicker-McKee, et al., supra, at 1121. As noted earlier, a nonmoving party who wishes to proceed to trial must set forth specific facts sufficient to show there 

is a genuine material issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). 

Like the FAA, the Respondent also offered multiple pieces of evidence, including 

additional portions of Mr. Jeffrey Becker's October 29,2014 discovery Deposition (Exh. 1), and 

an April30, 2014 Expert Report of Mr. Daniel J. Hancher (Exh. 2). Through this evidence the 

Respondent attempted to show that a genuine dispute existed as to the material facts established 

by the FAA's Motion; specifically, that l) normal wear and tear, not improper installation and 

rigging of the flying doors, was the cause of the discrepancies discovered during the May 20 I 0 

inspection; and 2) an intervening tire change on N257SC, not improper maintenance, was the 

cause of the missing tubular bearing. Because of the volume of material, only highlights of 

certain Respondent evidence are discussed herein. 

As noted earlier, Mr. Becker explained, in his October 29,2014 deposition testimony, 

that the Respondent's aircraft technicians and inspectors who had performed the MLG 

installations had been interviewed during the Respondent's [20 l 0] investigation. Unfortunately, 

none ofthem had any independent memory of what MLG installation work they had performed 

on the aircraft. Thus, all they could do was identify the maintenance records that they had 

created detailing the work. (Exh. l, 42.) at the Respondent asserted that these records should be 

taken at face value, since they indicated that the installation had been done in accordance with 

AMM section 32-11-00. (Exhs. G, R, and X.) 

Mr. Becker agreed that both he and Mr. Dan Boggs, the Respondent's Director of 

Page 22 of 31 
Maintenance ("DOM"), ~ad met with Inspector Lipinski on May 25, 2010 at the Toledo airfield 

to inspect the three Boeing B-727 aircraft. (Exh. I, 49.) He testified that he did not have any 

personal recollection of what, if any, "nicks or flaws" had been found on each aircraft. (Exh. 1, 

76.) Nevertheless, Mr. Becker testified that he didn't know "how anybody" could look at an 

aircraft door and "say, hey, it's m~srigged." (Exh. I, 71.) Mr. Becker also opined that an 

individual could not diagnose a misrigged door until after he swung the door. (/d.) It was unclear 

from this testimony whether Mr. Becker was describing his own limitations, or attempting to 

discount Inspector Lipinski's statements (Exhs. I and JJ), or Inspector Gasche's expert B-727 

credentials and statement (Exh. J), or Mr. Buck's reports (Exhs. Hand BB), or Mr. Becker's own 

investigation reports and assertions. (Exhs. HH, 0, P, U, and V.) 

Mr. Becker testified that the intervening tire change maintenance on N287SC was for a 

number 4 outboard tire. (Exh. I, 45.) It was the Respondent's "belief" that the missing tubular 

bearing on the Boeing N287SC had "fallen out" during that tire change. (ld. at 47). 

Mr. Becker reviewed CCIA 's June 8, 20 I 0 Letter to FAA Inspector Evans, in which Mr. 

Buck stated that no ·intervening maintenance could account for the missing tubular bearing. (Exh. 

BB.) Mr. Becker discounted this Letter, because it had been sent to the FAA prior to the 

Respondent "completing our investigation." (Exh. I, 48-49.) He complained that Mr. Buck had 

failed to incorporate "the benefit"·ofthe Respondent's investigation results into his Letter. (Exh. 

I, 49.) 

This was odd testimony, since according to Mr. Becker's own March 21,2011 Letter to 

the FAA, the Respondent's investigation had been conducted in conjunction with CCIA, and had 

concluded by October 20 10. According to reports submitted to the FAA by both Mr. Buck and 

Mr. Becker, the results of the joint investigation had been that the Respondent's improper 

maintenance had caused misrigging on all three aircraft's MLG doors. (Exhs. Hand HH.) 

It is noteworthy that Mr. Becker did not explain in his deposition testimony what, if any, 

additional independent investigation the Responden~ had performed beyond the investigation 

conducted jointly with CCIA, or whatthe results of that investigation might have been. He did 

not specify what investigation "benefits" Mr. Buck should have considered and mentioned in 

either his June 8, 20 I 0 Letter or subsequent communications with the FAA. 

Page 23 of 31 
Mr. Becker also generally accused Mr. Buck of failing to do "a thorough investigation," 

but he did not specify what (if anything) he believed Mr. Buck had failed to be thorough about. 

In short, Mr. Becker alleged that there was "a possibility" that an intervening maintenance event 

could have been responsible for the missing hardware on Boeing N287SC. (Exh. I, 124.) He 

"assume[ d]" that there would have been immediate problems if the Respondent had failed to 

include the tubular bushing in the door installation. (!d. at 126.) As a result, he found it "hard to 

believe" that the Respondent had "left out that tubular bearing." (/d.) 

Mr. Becker also testified, based on his personal review of the maintenance· records, that 

each of the three aircraft only had insignificant "wear and tear, blend and treat" items that needed 

repair. (/d.) However, when asked to specifically look at maintenance repair records during his 

deposition, Mr. Becker was often unable to justify his opinion. For example (not inclusive), in 

reviewing records for the Boeing N287SC, Mr. Becker testified that he had "no comment about 

what they mean by [hinge pins] improperly installed" or whether the Respondent "had done 

that." (Exh. I, I 01.) Instead, Mr. Becker re-emphasized that the aircraft had been "in operation 

for two months after it left our facility." (Jd.) When asked if a damaged left-hand inboard flap 

fair~ng on the wing door would need to be repaired in accordance with Boeing's AMM, Mr. 

Becker replied: "Yeah. I mean, no. I'm thinking. I don't- yeah. No, I don't know." (Exh. 1, 

102.) 

Perhaps most problematic was Mr. Becker's testimony (and t~e Respondent's argument) 

that "we've never stated or agreed that the doors were misrigged to begin with." (Exh: 1, 86; 

Response, 22.) First, this was inconsist,ent with the Respondent's June 10, 20 I 0 revised training 

program, in which it specifically acknowledged that misrigging was "suspected." It was directly 

contradictory to Mr. Becker's March 21, 2011 Letter, written as the Respondent's authorized 

agent, in which Mr. Becker had expressly adopted CCIA's October 25, 2010 Investigation 

Report (Exh. H), which had found that the Respondent had misrigged the MLG on each of the 

three Boeing B-727 aircraft because the Respondent had failed to follow Boeing's AMM. (Exh. 

HH.) 

A. Party Agent's Statement Aga.inst Interest Substantive Evidence: 

It is well established that a statement (i.e., oral, written, or non-verbal conduct) of a party 

opponent may be offered against that party in a civil action. (Rule 80 I ( d)(2); Restatement 

Page 24 of 31 
(Second) of Agency § 286 (1958)}. 

[A]n "admission," which the Federal Rules now terms "an opposing party's statement," 

are the words or acts of a party or a party's representative that are offered as evidence by 

the opposing party. They may be express admissions, which are statements of the 

opposing party or an agent whose words may fairly be used against the party, or 

admissions by conduct. 

2 McCormick On Evidence § 254 (7th ed). 

Such admission evidence is considered to have "special reliability" and therefore may be 

received into evidence as an exception to the hearsay rule. 12 In addition, when Fl part.y opponent 

admits some "damaging" fact, then such statement may be used to prove the truth of facts 

asserted, "irrespective" of the party's or party agent's "motive in making them." 2 McCormick 

On Evidence § 259 (7th ed). 

!d. 

They will only be offered against the principal when they admit some fact 

damaging to the principal, and this kind of statement by an agent is likely to be 

trustworthy. No special danger of surprise, confusion, or prejudice from the use of 

the evidence is apparent. 

Such opposing party statements are deemed to have "special evidentiary value" and are 

admissible as "substantive" evidence, "because that party is discredited, like a witness 

impeached by contradictory statements, by the party's own statements inconsistent with his or 

her present claim." 29A Am.Jur. 2d Evidence, § 773. A party's assertion that his statement had 

not been "under oath" does not defeat the admissibility or probative value of the admission. 

A party can hardly object that he had no opportunity to cross-examine himself or that he 

is unworthy of credence save when speaking under sanction of an oath. 

2 McCormick On Evidence § 254 (7th ed). 

12 It should be noted that 14 C.F.R. § 13.222(c) specifically allows for the introduction of hearsay evidence at the 

hearing in these proceedings, but the court must then "weigh" hearsay evidence in considering the evidence as a 

whole. In summary judgment proceedings, the court may not "weigh" any material facts. Thu~, hearsay ca~not ~e 

admitted and then "weighed" in a summary judgment proceeding. Given the absence of a practice rule on thts potnt, 

using the Federal Rules as guidance is helpful. 

Page 25 of 31 
It was undisputed that Mr. Becker was the Respondent's authorized representative 13 when 

he wrote the March 21, 2011 Letter to the FAA about the MLG rigging. (Exh. HH.) In this 

March 21, 2011 Letter, Mr: Becker asserted that the Respondent had "initiated a very detailed 

investigation to review all aspects of the issue" of the MLG rigging. (!d. at 1.) The Respondent's 

investigation results had been shared with CCIA "to share the lessons learned to further help 

prevent a reoccurrence not only for us but for CCIA also." (ld.) 

In Mr. Becker's March 21,2011 Letter, he did not report what the Respondent's 

investigation results were, or assert that they differed from CCIA's results. Instead, Mr. Becker 

expressly adopted the statements and findings that Mr. Buck had provided in his October 25, 

2010 Letter, and in CCIA's CARs. (!d.) As noted earlier herein, Mr. Buck's October 25,2010 

Letter specifically reported that investigation results had found that Respondent had misrigged 

the MLG on each of the three aircraft because of the Respondent's failure to properly follow the 

Boeing AMM (Exh. HH at 1; Exhs. 0 and U.) 

During his October 29, 2014 deposition, Mr. Becker agreed that he had authored and sent 

the March 21, 2011 Letter to Inspector Lipinski in response to an FAA investigation inquiry 

about the MLG inspecti~:ms. However, despite the express statements in his March 21, 2011 

Letter, he testified on October 29, 2014 that he "didn't believe" that the [20 1 0] investigation 

results were "accurate." He did not, however, detail what specific results were inaccurate, or how 

he had learned of such inaccuracies, or when (if at all) the Respondent had communicated this 

information about the inaccuracies to either CCIA or the FAA. 

Instead, Mr. Becker explained that he had referenced CCIA's investigation results in his 

March 21, 2011 Letter simply to let Inspector Lipinski know that 'he wasn't going to see 

anything new'' or different in the Respondent's corrective actions. (Exh. 1, 177 .) It is 

noteworthy that the Respondent did not provide any other testimony or evidence about the March 

21, 2011 Letter or its contents. Thus, there is no proof in the evidentiary record to show how (if 

at all) Mr. Becker or any other Respondent representative had limited, corrected, or disavowed 

the assertions in the March 21, 2011 Letter. 

13 For example, Mr. Becker not only communicated to the FAA on behalf of the Respondent in the year 20 II, but he 

also served as the Respondent's Rule 30(b)(6) company representative when he was deposed on October 29, 2014. 

(R's Supp., 3.) The Respondent never asserted that Mr. Becker's statements in his March 21, 20 II were outside of 

his capacity as the Respondent's agent. 

Page 26 of 31 
A party-opponent's declaration is admissible· for any inference which the trial 

court can reasonably draw from the statement regarding any issues involved in the 

case. 

29A Am. Jur. 2d Evidence,§ 773 

Based on the evidentiary record, the assertions made by Mr. Becker during his October 

29, 2014 deposition testimony, which are inconsistent with the assertions he made in his March 

21, 2011 Letter to the FAA, are not supported by the evidence and are insufficient to show there 

is a genuine material issue for trial. 

B. Mr. Daniel J Hancher Evidence- Nol Reliable 

In addition to Mr. Becker's testimony, the Respondent offered the April 30, 2014 Expert 

Report of Mr. Daniel J. Hancher (Exh. 2). The Respondent ·gave Mr. Hatcher two sets of the 

Respondent's maintenance records, and "the FAA-compiled Statement of the Case in this 

matter" to review. Since the Expert Report was auth.ored almost one (1) year ago, Mr. Hatcher . . 

did not specifically identify the reviewed maintenance records by admitted Motion Exhibit 

number, nor did he identify what documents were in the "FAA-compiled Statement of the Case," 

he reviewed. This made it difficult to be certain as to what FAA records he actually did review. 

Mr. Hancher did note, however, that the only maintenance records he saw were those created by 

the Respondent. (Exh. 2, 1.) 

Thus, based on Mr. Hancher's statements, he did not see (among other admitted 

evidence) the Respondent's June 10,2010 revised B-727 MLG Door Installation Training 

Program, FAA Inspector Gasche's September 28,2010 Memorandum (Exh. J), CCIA's October 

25, 2010 Investigation Report (Exh. H), CCIA's Corrective Action Reports ("CARs) (Exhs. P, 

V, and EE), FAA Inspector Lipinski's December 12,2010 Memorandum (Exh. I), FAA 

Inspector Lipinski's February 17, 2015 Declaration (Exh. JJ), Respondent's March 21, 2011 

Investigation Report (Exh. HH), or Mr. Jeffrey Becker's October 29, 2014 discovery Deposition 

(Exh. KK). 

While it is certainly up to an individual party to decide what to give an expert to review, 

the facts or data reviewed by the expert must be sufficient to render his testimony reliable. Fed. 

R. Evid. 702(b). The term "data" is "intended to encompass" the expert reviewing and discussing 

"the reliable opinions of other experts:" Fed. R. Evid. 702, Advisory Committee Notes, 2000 

Page 27 of 31 
Amendments. 

Given the admitted evidence in this case, it is understandable why the Respondent only 

gave Mr. Hancher limited information to review. But by the same brush, the Respondent's 

choice not to provide Mr. Hancher with CCIA's reports and records, or the Respondent's full set 

of written records, or the statements and declarations oflnspector Lipinski, Inspector Gashe, Mr. 

Buck, and/or Mr. Becker, renders Mr. Hancher's proffered expert opinion testimony too limited 

in nature, and therefore unreli~ble and inadmissible: See /d. ("an analysis of the sufficiency of 

the expert's basis cannot be divorced from the ultimate reliability of the expert's opinion"). 

4. Respondent Opposition Evidence- No Bona Fide Dispute 

Summary judgment should be denied when there is a bona fide dispute of material facts. 

lOA Charles Alan Wright et al., Federal Practice and Procedure§ 2725 (3d ed. 2014) (citing to 

Associated Press v. United States, 326 U.S. 1, 4 (1945). Summary judgment should not be 

granted ... unless the facts entitling the movant to summary judgment are admitted or are clearly 

established. I OA Charles Alan Wright et al., Federal Practice and Procedure § 2725 (3d ed. 

2014) (citing Ely v. Hall's Motor Transit Co., 590 F.2d 62, 66 (3d Cir. 1978) (applying "clear 

showing" standard). However, a genuine dispute is not created by a mere 'scintilla' of favorable 

evidence, or evidence that is only 'colorable' or insufficiently probative." Baicker-McKee, et al., 

at 1122 (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242,247-52 (1986). 

In the case herein, large portions of the Respondent's opposition evidence regarding the 

alleged violations of 14 C.F.R. § 145.205(a)) were based on Mr. Becker's lack of memory (e.g., 

we don't remember the results of our own investigation), intentional ignorance (e.g., we haven't 

talked to the mechanics about the repairs since our initial investigation), hopeful assumption 

(e.g., it is a possibility that it wasn't us), downplaying evidence (e.g., the damage was just minor 

nicks and scratches), lack of knowledge (e.g., I don't know), speculation (e.g., it must be wear 

and tear because of the passage of time), general accusations of blame (e.g., Mr. Buck didn't 

investigate enough and. also treated us unfairly), and unsupported opinion (e.g., because this is 

what we believe). This evidence was not reliable, and did not create a genuine dispute as to any 

of the material facts established by the FAA's Motion. 

Page 28 of 31 
In addition, as noted above, portions ofMr. Becker's testimony was discredited by his 

own prior statements to the FAA, codified in his March 21, 2011 Letter. On behalf of the 

Respondent, Mr. Becker expressly admitted in this Letter that the Respondent was at fault for the 

MLG improper rigging, because the Respondent's technicians and inspector had not followed 

CCIA's supplied and approved Boeing 727 AMM procedures. 

In short, even when viewing the admitted evidence on the alleged violations of 14 C.F.R. 

§ 145.205(a) in a light most favorable to the non-moving party (i.e., the Respondent) there are no 

genuine issue(s) of material fact. A hearing is not required on the nine (9) violations alleged. 

Therefore, the FAA has proven that it should be granted summary disposition on the nine (9) 

violations as a matter of law. See Baicker-McKee, et al., supra, at 1121; See also, lOA Fed. 

Prac. & Proc. Civ. § 2725. 

5. Short Review of Proposed Civil Penalty 

In its Motion, the FAA asserted that it sought to impose "baseline, mid-range penalties." 

(Motion, 23.) 

It was undisputed that the applicable penalty range under FAA Order 2150.3B (Exh. Il) 14 

was moderate to maximum. The moderate range was $8,750 to $16,249.00. The maximum range 

was $16,250 to $25,000. (Motion, 23 and Exh. II, B-5.) The FAA asserted that it was viewing the 

penalty assessment on a "per aircraft basis." (Motion, 24.) 

The FAA then argued that since the MLG involved two doors per aircraft, the improper 

installation of one of the two MLG doors should be deemed an aggravating factor. (!d.) The FAA 

did not specific whether the "aggravation was the right or left door, or whether the installation of 

one door, or both doors, was necessary in order to complete the MLG rigging. However, if the 

aggravation argument was accepted by the court, then the Maximum range and a proposed fine 

of $20,625 per aircraft could be utilized, for a total proposed penalty of $64,875 (!d.) 

The FAA's argument about aggravation was not persuasive. It is noteworthy that the 

FAA's Complaint had not pled any aggravating factors, and had not distinguished between the 

two doors on each aircraft. In addition, the FAA did not provide any caselaw to support utilizing 

14 It should be noted that the FAA Motion identifies FAA Order 2150.38 as Exhibit "C38." This appears to be a 

clerical error, since FAA Order 2150.3 8 was marked and filed as Exhibit 11. 

Page 29 of 31 
the violation itself as an "aggravating" factor to further punish the Respondent by maximizing 

the penalty against it. 

Thus, the FAA has failed to meet its initial burden of proof that it was entitled to 

summary judgment as a matter of law on the proposed civil penalty. 

Vl. CONCLUSION 

Pursuant to 14 C.F.R. § l3.218(f)(5) and Civ. ~·56, all of the parties' admissible 

Exhibits were considered, as well as the applicable pleadings and documents. After having heard 

oral argument on the Motion, and having reviewed all relevant caselaw, decisions, regulations, 

statutory authority, motions, pleadings, and being fully advised; 

IT IS HEREBY ORDERED: 

l. The FAA's Motion for Summary Judgment is granted in part. There is no genuine dispute 

as to any material facts regarding the nine (9) total alleged violations of 14 C.F .R. § 

145.205(a); 14 C.F.R. § 43.13(a); and 14 C.F.R. § 43.13(b), and the FAAis entitled to 

judgment as a matter of law. 

2. The material facts prove that the Respondent, Airborne Maintenance and Engineering 

Services, performed maintenance on each of the three different Boeing B-727 aircraft 

(identified as N899AA, N898AA, and N287SC) on· or about August 2009, October 2009, 

and March 20 I 0, that involved reinstalling and rigging the Main Landing Gear ("MLG") 

doors of each aircraft. The Respondent did not follow CCIA' s supplied and approved 

Boeing 727 AMM procedures when it installed and rigged the MLG. As a result, the 

Respondent's reinstallation and rigging of the MLG on each of the three aircraft was 

improper. 

3. The FAA's Motion for Summary Judgment is denied in part. There are genuine issues of 

material fact in dispute regarding the FAA's proposed civil penalty assessment of 

$64,875, and the FAA is not entitled to judgment as a matter of law on the proposed 

penalty. 

Page 30 of 31 
4. The Hearing scheduled for May 5, 2015-May 9, 2014, in Orlando, Florida is reconfirmed, for the purpose of addressing the parties' dispute on the issue of the proposed 

civil penalty. 

5. The parties will be informally contacted by the Office of Hearings regarding the location 

of the Hearing, the time needed, and whether the venue still needs to be in Orlando, 

Florida. 

6. For clarifications of this order or questions with regard to the procedures to be followed 

in this case, please contact Mr. Cody L. Smith, Attorney-Advisor, at the Office of 

Hearings (202-366-6941. 

Attachment: Service List 

Judg 

U.S. 

Page 31 of 31 
SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2WI000 15 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Federal Aviation Administration 

ONE COPY 

Office ofthe Regional Counsel, AS0-7 Southern Region 

P. 0. Box 20636 

Atlanta, GA 30320 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Robert P. Silverberg 

Respondent's Counsel 

Silverberg, Goldman & Bikoff, LLP 

Georgetown Place, Suite 120 

1101 30th St., N.W. 

Washington, DC 20007 

TEL: 202-944-3300 

FAX: 202-944-3306 

Judge J.E. Sullivan 

US. Administrative Law Judge 

. Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey A venue, S.E. (E 11-31 0) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

FDMS No. FAA-2013-0716 

(Civil Penalty Action) 

15 Service was by U.S. MaiL For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2WIOOO, Washington, 

DC 20591, Attention: Hearing Docket Clerk, AGC-430.