U.S. DEPARTMENT OF TRANSPORTATION 

Office of Hearings 

Washington, D. C. 

The Liberty Foundation, Inc. 

FAA DOCKET NO. 2012·0477 

(EIR 2011-GL-03-0070) 

(Civil Penalty Action) 

Han. J. E. Sullivan, Administrative Law Judge 

RESPONSE TO FAA'S MOTION TO COMPEL 

AND REQUEST FOR TELEPHONIC CONFERENCE 

NOV 1 R ";3 

HEARING uOCKET 

Respondent, The Liberty Foundation, Inc. ("Liberty"), herewith responds to 

Complainant's Motion To Compel ("Motion"). 

FAA's Motion complains about Liberty's responses to limited Interrogatories Nos. 

3, 4, 7, 8, and 12 and limited Request For Production No. 2. For ease of reference, 

each of the disputed discovery requests/responses will be set out in this Response. 

Interrogatory No. 3: State with specificity the factual and legal bases for 

your denial of paragraph 5(a) of the Amended Complaint, including but not 

limited to specifically any and all bases for your belief that Mr. Schneider used 

methods, techniques, and/or practices acceptable to the Administrator. 

Response: Complainant bears the burden of proof as to what methods, 

techniques, and/or practices were or would have been acceptable to the 

Administrator. The Administrator has not provided such proof in this case. In 

addition, Respondent had a right to rely on the maintenance competence of 

its maintenance providers, including Mr. Schneider, who provided Respondent 

an appropriate return to service. 

Paragraph 5(a) amends the Complaint to add a charge that when Mr. Schneider 

replaced the bladder fuel tanks with the fabricated aluminum fuel tanks, he failed to use 

STUART A. GOLDSTEIN, P_ A 

7300 North Kendall Drive, Suite380, Miami,FL 33156 

T: (305} 670-1222 F: (305) 400-0685 EMAIL: STlJARTGOl D$1Eif:::!.e8_@AI_J~ 
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the methods, techniques, and practices prescribed in the current manufacturer's 

maintenance manual or Instructions for Continued Airworthiness prepared by its 

manufacturer, or other methods, techniques, and practices acceptable to the 

Administrator. 

The alleged regulatory basis for this new charge is 14 CFR §43.13(a) that each 

person performing maintenance "use the methods, techniques, and practices prescribed 

in the current manufacturer's maintenance manual or Instructions for Continued 

Airworthiness prepared by its manufacturer, or other methods, techniques, and 

practices acceptable to the Administrator, except as noted in 43.16." 

Respondent's answer to Interrogatory 3 clearly sets forth its position on the legal 

issue that Respondent had a right to rely on its licensed, professional, maintenance 

providers, including by Mr. Schneider. Further, it is and has been Respondent's 

continued legal position that the work performed on the fuel system was not a major 

alternation. Further, Respondent previously provided a detailed expert report to FAA 

supplied by an expert in the field of metallurgy/welding. Further, FAA admits there are 

no methods, techniques, and practices prescribed in the current manufacturer's 

maintenance manual or Instructions for Continued Airworthiness prepared by the 

manufacturer or other known methods, techniques, and practices acceptable to the 

Administrator that deal with this particular maintenance. Thus, the general rules of 

maintenance apply to the maintenance in issue. Of more importance, which FAA 

prefers to ignore, is the fact that Respondent need prove nothing. The complete 

burdens of persuasion and proof rest with FAA. 

Therefore, Respondent properly answered Interrogatory No. 3. 

STUART A. GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite380, Mlami,FL 33156 

T: (305) 670-I 222 F: (305) 400-0685 EMAIL: .SDJ6BIGQ!.QSif.llil.E6.@.8.1IJ:i1;..1 
Interrogatory No. 4: State with specificity the factual and legal bases for 

your denial of paragraph 5(b) of the Amended Complaint, including but not 

limited to specifically any and all bases for your belief that Mr. Schneider did 

the work in such a way and/or used materials of such quality that the aircraft 

was restored to its original or properly altered condition. 

Response: Complainant bears the burden of proof as to the manner in which 

the work was done and/or in what manner the materials used were not of 

such a quality that the aircraft was not restored to its original or properly 

altered condition. The Administrator has not provided such proof in this case. 

In addition, Respondent had a right to rely on the maintenance competence of 

its maintenance providers, including Mr. Schneider, who provided Respondent 

an appropriate return to service. 

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The alleged regulatory basis for this new charge is 14 CFR §43.13(b) that each person 

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

condition of the aircraft . . . 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)." 

Respondent's answer to Interrogatory No. 4 clearly sets forth its legal position on 

this issue, in the same manner as its answer to Interrogatory No. 3. Respondent 

previously provided an expert report to the FAA from its metallurgy/welding expert which 

sets forth in detail the reasons why the welding was done properly. Further, 

Respondent has an absolute right to simply deny an allegation and require the FAA to 

prove the allegation by a preponderance of the competent, reliable, substantial 

evidence. This would require evidence, not conclusions, that the work was not done in 

such a way and/or that the materials used were not of such a quality that the aircraft 

was not restored to its original or properly altered condition. FAA has not provided such 

proof. 

Therefore, Respondent properly answered Interrogatory No. 4. 

STUART A. GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite 380, Miami,FL 33156 

T: (305) 670-1222 F: (305) 400-0685 EMAIL: JiTLIARTGOLOSTFINPA@AHNFT 
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Interrogatory No. 7: If you assert that Thomas Soerens, Thomas Duellman, 

Donald Dodge, and/or Timothy Bourgoine have knowledge of facts relevant to the 

amendment of the Complaint, or that are otherwise discoverable, state with 

specificity the bases for such assertion, including specifically what facts each 

individual has knowledge of, why you believe such facts are relevant and 

discoverable, and why you believe he has such knowledge. 

Response: Respondent objects to this Interrogatory on the bases that it is 

vague and incomprehensible. Messers. Soerens and Duellman testified by 

deposition in the Schneider case. Messers. Dodge and Bourgoine testified by 

deposition in this proceeding and all such testimony is a matter of record 

already in the possession of Complainant. Respondent has not yet 

determined which parts, if any, it will use of those depositions in its defense. 

The depositions of Messes. Dodge and Bourgoine were taken before the 

Amendment to the Complaint. If Respondent already knew what facts these 

four witnesses were in possession of related to the amendments, additional 

discovery would not be necessary. 

This is perhaps one of the most perplexing interrogatories undersigned counsel has 

seen. FAA is asking Respondent to tell it what information these potential witnesses 

have in order to allow Respondent to depose them on the new issues. As set forth at 

the end of the above Response, if Respondent were in possession of the facts known to 

these witnesses related to the amendments, additional discovery as to them would not 

be necessary. 

Interrogatory No. 8: If you assert any error in the deposition testimony of 

Mr. Schneider or Mr. Fowler concerning the matters addressed in the 

amended Complaint, identify those errors with specificity, why you believe 

they were in error, and what the correct statements would have been. 

Response: Respondent objects to this Interrogatory on the grounds it is 

confusing in that the depositions described were taken prior to the 

amendments to the complaint. 

Respondent maintains the appropriateness of its response to this Interrogatory. 

However, counsel has not been advised of any errors in the transcription of the 

depositions of Mr. Schneider or Mr. Fowler. 

STUART A. GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite 380, Miami,FL 33156 

T: (305) 670-1222 F: (305) 400-0685 EMAIL: .Sll.L~BTGOLDSTEINPA®ATT.Nf..I 
Interrogatory No. 12: If you deny any of the Requests for Admission, state 

with specificity the basis for the denial. 

Response: Respondent is required to only admit or deny each Request 

For Admission. 

Respondent maintains the appropriateness of its response to this Interrogatory. 

However, in an effort to resolve this portion of the dispute without court 

intervention, Respondent makes the following explanatory responses to the 

Requests For Admission: 

1. N390TH was in a condition for safe flight after the work which 

culminated on February 24, 2011, because the work was performed by licensed, 

professional mechanics in accordance with 43. 13(a). Mr. Schneider has already 

described the work performed. The fact that one weld of many failed months 

after the work was performed, does not mean the aircraft was not safe for flight 

when and after the work was performed. 

3. Respondent denies the fuel leak was caused by the work 

culminating in the February 24, 2011 return to service, but admits the leak 

occurred at one of those welds. 

4. Respondent denies the fuel leak was caused by a failure of 

welding performed during the work that culminated in the February 24, 2011 

return to service, but admits the leak occurred at one of those welds. 

5. Respondent continues to deny this Request For Admissions based 

on the report of its metallurgy/welding expert. That four months later a leak 

occurred at a weld, does not mean the welding was done improperly. 

6. Respondent continues to deny this Request For Admission. Mr. 

Genculu's Expert Report speaks for itself. 

STUART A. GOLDSTEIN, P. A 

7300 North Kendall Drive, Suite 380, Miami,FL 33156 

T: (305) 670-1222 F: {305) 400-0685 EMAIL: STUARTGOLQl.li.Elt:J.£6..\iMTTNET 

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9. Respondent continues to deny this Request For Admission 

because the Order of Suspension resulted from a settlement agreement. Mr. 

Schneider never admitted to any regulatory violations. How the FAA views the 

Order of Suspension is a matter for the FAA, not Respondent. 

10. Respondent continues to deny this Request For Admission 

because, as previously explained, a log entry was made in the aircraft's 

discrepancy log book. 

11. Respondent continues to deny this Request For Admission for the 

same reasons set forth in response to Request For Admission No. 1. 

Request For Production No. 2: Please produce any and all documents concerning 

the work performed on the fuel system during the winter of late 2010 and early 2011 that 

culminated in the February 2011 return to service, including but not limited to any 

communications to or from Rodney Schneider, Ray Fowler, and Cullen Underwood 

about the type, manner or cost of work performed on the fuel system. 

Response: All such documents have been produced previously. Respondent does not 

have possession of non-oral communications between the persons named in this 

Request. 

To be clear, if not already clear, documents in response to the first category of the 

Request were previously provided; as to documents relating to the second category of 

the Request, undersigned counsel believes there are no such documents relating to 

communications to or from Mr. Schneider, Mr. Fowler, and Mr. Underwood. 

STUART A. GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite 380, Miami,FL 33156 

T: (305) 670-1222 F: (305) 400-0685 EMAIL: STUARTGOLDSTEINPA®ATI.NET 
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REQUEST FOR TELEPHONIC CONFERENCE 

If the Court deems it appropriate to a productive resolution of the issues raised in 

the motions to compel and responses thereto, Respondent is requesting a telephonic 

conference 

Respectfully submitted, 

STUART A. GOLDSTEIN, P. A. 

7300 North Kendall Drive, Suite 380 

Miami, FL 33156 

Tel: (305) 670-1222 

Fax: (305) 670-7065 

Email: stuartgoldsteinpa@att.net 

.I, ·' ,i I'\ l 

By: , 

·Jvv 

ni(CX ~i \cJ4PRI))/l ~-- 1 

"· Stuart A Goldstein 

Attorney for Respondent 

CERTIFICATE OF SERVICE 

I HEREBY CERTIFY that the foregoing has been served on this 

November, 2013, as set forth below: 

Christopher R. Stevenson, Esq. 

Office of the Regional Counsel 

Federal Aviation Administration 

P. 0. Box 20636 

Atlanta, GA 30320 

By Facsimile (404) 305-5223 

and regular U. S. Mail 

STUART A GOLDSTEIN, P. A 

7300 North Kendall Drive, Suite 380, Miami,FL 33156 

T: (305} 670-1222 F: (305) 400-0685 EMAIL: .sn.!ABI.\ill1Q..hlEJ.bl..2.1:J.@.Al.llif.I 

day of 
and that an original and one copy was served upon: 

Hearing Docket Clerk, AGC-430 

Wilbur Wright Building, Suite 2W1000 

Federal Aviation Administration 

800 Independence Avenue, S. W. 

Washington, D. C. 20591 

and that a copy was served upon: 

Honorable J. E. Sullivan 

Office of Hearings, M-20 

U. S. Department of Transportation 

1200 New Jersey Avenue, S. E. (E11-31 0) 

Washington, D. C. 20590 

By Facsimile: (202) 366-7536 

and regular U. S. Mail 

STUART A. GOLDSTEIN, P. A 

7300 North Kendall Drive, Suite 380, Miami,FL 33156 

T: (305} 670-1222 F: (305) 400-0685 EMAIL: ,SJJ.!&BTGOLOSTEINPA®ATTNE:r 

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