### U.S. DEPARTMENT OFTRANSPORTATION Officeof Hearings Washington, D. C.

The Liberty Foundation, Inc. FAA DOCKET NO. 2012·0477 (EIR 2011-GL-03-0070)

(Civil PenaltyAction) Han. J. E. Sullivan,Administrative LawJudge

RESPONSETO FAA'S MOTIONTO COMPEL AND REQUEST FORTELEPHONIC CONFERENCE 

### NOV 1R ";3 

## HEARING uOCKET

Respondent, The Liberty Foundation, Inc. ("Liberty"), herewith responds to Complainant's MotionTo 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 ofthedisputeddiscoveryrequests/responseswill be setout 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 limitedto specifically anyand all basesforyour beliefthat Mr. Schneider used methods,techniques, and/or practices acceptabletotheAdministrator. Response: Complainant bears the burden of proof as to what methods, techniques, and/or practices were or would have been acceptable to the Administrator. TheAdministrator 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 bladderfuel tankswith thefabricated aluminum fuel tanks, hefailed to use

STUARTA. 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~**2 

### 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 "usethe 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 answerto Interrogatory 3clearly 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, FAAadmits 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 restwith FAA. Therefore, Respondent properlyanswered Interrogatory No. 3.

STUARTA. GOLDSTEIN, P. A. 7300 North Kendall Drive, Suite380, Mlami,FL 33156 T: (305) 670-I222 F: (305) 400-0685 EMAIL:.SDJ6BIGQ!.QSif.llil.E6.@.8.1IJ:i1;..1Interrogatory 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 away and/or used materials of such qualitythat the aircraft was restored to its original orproperlyaltered condition. Response: Complainant bearsthe burden of proof asto 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 rightto rely on the maintenance competence of its maintenance providers, including Mr. Schneider, who provided Respondent an appropriate return to service. 3

The alleged regulatory basis for this new charge is 14CFR §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 otherqualities affecting airworthiness)." Respondent's answerto Interrogatory No. 4clearly setsforth its legal position on this issue, in the same manner as its answer to Interrogatory No. 3. Respondent previously provided an expert reporttothe FAAfrom its metallurgy/welding expertwhich 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 FAAto prove the allegation by a preponderance of the competent, reliable, substantial evidence. This would require evidence, not conclusions, thatthe workwas 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 properlyanswered Interrogatory No. 4.

STUARTA. GOLDSTEIN, P. A. 7300 North Kendall Drive, Suite380, Miami,FL 33156 T: (305) 670-1222 F: (305) 400-0685 EMAIL:JiTLIARTGOLOSTFINPA@AHNFT4 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 whyyou 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 inthe Schneidercase. Messers. Dodge and Bourgoinetestified 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 whatfacts these four witnesses were in possession of related to the amendments, additional discoverywould 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 ofthe above Response, if Respondentwere in possession ofthe 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 theywere in error, and whatthe correct statementswould have been. Response: Respondent objects to this Interrogatory on the grounds it is confusing in that the depositions described were taken prior to the amendmentsto 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 depositionsof Mr. Schneideror Mr. Fowler.

STUARTA. GOLDSTEIN, P. A. 7300 North Kendall Drive, Suite380, Miami,FL 33156 T: (305) 670-1222 F: (305) 400-0685 EMAIL:**.Sll.L~BTGOLDSTEINPA®ATT.Nf..I**Interrogatory No. 12: 

### Ifyou deny anyofthe RequestsforAdmission, state with specificitythe basisforthe denial. Response: 

### Respondent is required to only admit or deny each Request ForAdmission. 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 ForAdmission: 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 aftertheworkwas 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 ofthosewelds. 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, butadmitsthe leakoccurred atone ofthosewelds. 5. Respondent continues to deny this Request ForAdmissions based
on the report of its metallurgy/welding expert. That four months later a leak occurred at aweld, does not mean the welding was done improperly. 6. Respondent continues to deny this Request For Admission. Mr. Genculu's Expert Report speaksfor itself.

STUARTA. GOLDSTEIN, P. A 7300 North Kendall Drive, Suite380, Miami,FL 33156 T: (305) 670-1222 F: {305)400-0685 EMAIL: STUARTGOLQl.li.Elt:J.£6..\iMTTNET 56 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 amatterforthe 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 setforth in response to Request ForAdmission No. 1.

Request For Production No. 2: Please produce any and all documents concerning theworkperformed on thefuel system during the winter of late 2010 and early2011 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 aboutthetype, mannerorcostofwork 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 notalreadyclear, documents in response to the first category ofthe 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 communicationsto orfrom Mr. Schneider, Mr. Fowler, and Mr. Underwood.

STUARTA. GOLDSTEIN, P. A. 7300 North Kendall Drive, Suite380, Miami,FL 33156 T: (305) 670-1222 F: (305) 400-0685 EMAIL: STUARTGOLDSTEINPA®ATI.NET7 REQUEST FORTELEPHONICCONFERENCE Ifthe Courtdeems it appropriateto a productive resolution ofthe issues raised in the motions to compel and responses thereto, Respondent is requesting a telephonic conference

Respectfullysubmitted, STUARTA. GOLDSTEIN, 

### P. A. 7300 North Kendall Drive, Suite380 Miami, FL 33156 Tel: (305) 670-1222 Fax: (305) 670-7065 Email: stuartgoldsteinpa@att.net
.I, ·' ,i I'\ l By: , 

# ni(CX**~i** 

# \cJ4PRI))/l**~--** ·Jvv 1 "· StuartA Goldstein Attorneyfor Respondent

CERTIFICATE OFSERVICE I HEREBY CERTIFY that the foregoing has been served on this November, 2013, as setforth below: Christopher R. Stevenson, Esq. Officeofthe Regional Counsel FederalAviationAdministration P. 

### 0. Box20636 Atlanta, GA 30320 By Facsimile (404) 305-5223 and regular U. S. Mail

STUARTA GOLDSTEIN, P. A 7300 North Kendall Drive, Suite380, Miami,FL 33156 T: (305} 670-1222 F: (305) 400-0685 EMAIL:.sn.!ABI.\ill1Q..hlEJ.bl..2.1:J.@.Al.llif.I day ofandthatan original and one copywasserved upon: Hearing DocketClerk,AGC-430 WilburWright Building, Suite2W1000 FederalAviationAdministration 800 IndependenceAvenue, S. 

### W. Washington, D. C. 20591 and that a copywasserved upon: HonorableJ. E. Sullivan Office of Hearings, M-20 U. S. DepartmentofTransportation 1200NewJerseyAvenue, S. E. (E11-310) Washington, D. C. 20590 By Facsimile: (202) 366-7536 and regular U. S. Mail

STUARTA. GOLDSTEIN, P.A 7300 North Kendall Drive, Suite380, Miami,FL 33156 T: (305} 670-1222 F: (305) 400-0685 EMAIL:,SJJ.!&BTGOLOSTEINPA®ATTNE:r 8