RECEIVED 

BEFORE THE JUN 2 5 2015 

u.s. DEPARTMENT OF TRANSPORTATIO~EARING DOCKET 

FEDERAL AVIATION ADMINISTRTION 10 

WASIDNGTON, D.C. 

In the matter of 

AIRBORNE MAINTENANCE AND 

ENGINEERING SERVICES 

Respondent-Appellant 

Docket No. FAA-2013-0291 

FAA Case No. 2011S0290032 

APPEAL FROM THE INITIAL DECISION OF 

U.S. ADMINISTRATIVE LAW JUDGE J.E. SULLIVAN 

APPEAL BRIEF OF 

RESPONDENT -APPELLANT AIRBORNE MAINTENACNE AND 

ENGINEERING SERVICES 

Pursuant to 13.233( d) of the Rules of Practice in FAA Civil Penalty Actions, 14 

C.F.R. § 13.233(d), Respondent-Appellant, Airborne Maintenance and Engineering 

Services ("AMES") hereby files this brief in support of its appeal of the Initial Decision 

of U.S. Administrative Law Judge I.E. Sullivan, served on May 5, 2015 (the "Initial 

Decision"). The Initial Decision, inter alia, referenced and adopted a prior Order 

Granting in Part and Denying in Patt the FAA's Motion for Summary Judgment, served 

on Aprill, 2015 (the "Aprill, 2015 Order"), in which Judge Sullivan held that there was 

no genuine dispute as to any material facts in this case and, therefore, ruled that the 

Federal Aviation Administration ("FAA") is entitled to judgment as a matter oflaw. The 

Initial Decision also referenced and adopted the Judge's prior Order Accepting 

Respondent's Proffered Stipulation, served AprillO, 2015, regarding the amount of the 

proposed civil penalty. 
In accordance with section 13.233(b), AMES appeals the Initial Decision because 

the record shows that the grant of the FAA's Motion for Summary Judgment was not 

made in accordance with applicable law, precedent and public policy, and was otherwise 

in error because, (i) the Judge inappropriately weighed conflicting evidence in favor of 

the FAA, (ii) the Judge did not consider the applicable case law, and (iii) the Judge used 

as evidence of an admission the AMES response to the FAA's Letter of Investigation. 

Further, the Judge made prejudicial errors regarding material facts and the admissibility 

of the AMES outside expert report in granting the FAA's Motion for Summary 

Judgment. 

STATEMENT OF THE CASE 

On May 29, 2013, the FAA issued a Final Notice of Proposed Civil Penalty 

("FNPCP") in which it alleged that AMES violated three provisions of the Federal 

Aviation Regulations ("FARs") in connection with main landing gear ("MLG") changes 

AMES performed on three B-727 aircraft operated by Capital Cargo International 

Airlines, Inc. ("CCIA"). After receiving the FNPCP, AMES requested a hearing in this 

matter on June 13, 2013. The FAA filed its Complaint on June 20, 2013. On July 11, 

2013, the case was assigned to Administrative Law Judge J.E. Sullivan. 

The FAA's Complaint alleged that AMES had violated sections 43.13(a), 

43.13(b) and 145.205(a) of the FARs in connection with MLG changes it performed on 

the three CCIA aircraft in 2009 and 2010, and requesting that an order be entered against 

AMES assessing a civil penalty in the amount of $61,875 for the purported violations. 

Complaint at 2-3. Specifically, the Complaint alleged that: (1) on or about March 2010, 

AMES replaced both MLG on CCIA's B-727 aircraft registration no. N287SC, including 

2 
reinstalling and rigging the landing gear doors; (2) on or about August 2009, AMES 

replaced both MLG on CClA's B-727 aircraft registration no. N899AA, including 

reinstalling and rigging the landing gear doors; and (3) on or about October 2009, AMES 

replaced both MLG on CCIA's B-727 aircraft registration no. N898AA, including 

reinstalling and rigging the landing gear doors. Complaint at 1[ 4.a.-c. The FA."- claimed 

with respect to each of the MLG changes that the installation and rigging of the landing 

gear doors was not accomplished in accordance with the applicable B-727 Aircraft 

1v1aintenance Manual ("AMM"). Complaint at 1[ 4. d. The FAA claimed that the landing 

gear doors were improperly installed and rigged in that bushings and shims were naissing 

from the attach fittings and bushings and shims were naisplaced on the attach fittings. 

Complaint at 1[ 4. e. 

On July 18, 2013, AMES answered the FAA's Complaint. In its Answer, A.l\lES 

denied that its reinstallation and rigging of the landing gear doors on the three CCIA 

aircraft were not accomplished in accordance with the B-727 AMM (Answer~ 4.d.) and 

specifically denied that the doors were improperly installed and rigged in that bushings 

and shims were naissing from the attach fittings and bushings and shims were misplaced 

on the attach fittings, as the FAA alleged in its Complaint. Answer~ 4.e. 

Over the course of the next year and a half, the parties engaged in extensive 

discovery and motions practice, which culnainated on January 30, 2015 with each patty 

filing a motion for summary judgment. On February 16, 2015, AMES filed an Answer in 

Opposition to Complainant's Motion for Summary Judgment (herein after "AMES 

Opposition"). The next day, on February 17, 2015, the FAA filed its Response in 

Opposition to Respondent's Motion for Summary Judgment (herein after "FAA 

3 
Opposition"). On Febmary 26, 2015, each party filed a reply in support of its motion for 

snmmary. See Reply of Respondent to FAA's Opposition to Respondent's Motion for 

Summary Judgment, dated Februa1·y 26, 2015 (hereinafter "AMES Reply"); FAA's Reply 

in Supp011 of Motion for Summmy Judgment, dated Febmary 26, 2015 (hereinafter 

"FAA Reply"). On Mmch 13, 2015, the parties participated in telephonic oralmguments 

on the cross-motions for summmy judgment. 

On March 30, 2015, Judge Sullivan issued an Order Denying Respondent's 

Cross-Motion for Summmy Judgment finding that AMES had not met its bnrden of proof 

as the moving pany. Two days later, on April!, 2015, the Judge issued an Order 

Granting in Part and Denying in Part the FAA's Motion for Summmy Judgment (the 

"April 1, 2015 Order"). In her April 1, 2015 Order, the Judge held that there was no 

genuine dispute as to any material facts regarding the alleged violations and therefore the 

FAA was entitled to judgment as a matter of law. 1 

1 Judge Snllivan found that there were genuine issues of material fact in dispute regarding 

the amount of the FAA's proposed civil penalty and, therefore, denied this portion of the 

FAA's Motion for Summary Jndgment only. The Judge's April!, 2015 Order also 

reconfirmed the heming then scheduled for May 5-9, 2015 in Orlando, Florida, for the 

sole purpose of addressing the parties' dispnte on the amount of the proposed civil 

penalty. On April 7, 2015, in order to avoid going to a hearing on this issue only, AMES 

filed a stipulation in which it stated that if Jndge Sullivan's April!, 2015 Order and her 

March 30, 2015 Order Denying Respondent's Cross-Motion for Summmy Judgment me 

sustained after AMES has exhansted its rights of appeal, that AMES will not dispute the 

amount of the civil penalty ($61,875) proposed in the FAA's Complaint or the per 

aircraft equivalent thereof ($20,625). Respondent's Stipulation Regmding the Amount of 

the FAA's Proposed Civil Penalty or, In Lien Thereof, Partial Withdrawal of Request for 

a Heming on the Amount of the Propose Civil Penalty, dated April 7, 2015. On AprillO, 

2015, Judge Sullivan issued an Order in which she, inter alia, accepted the AMES 

stipulation regmding the amonnt of the proposed civil penalty and cancelled the heming. 

Order Accepting Respondent's Proffered Stipulation, Cancelling the Heming, Denying 

Any Inferred Request for Interlocutory Appeal, and Granting Other Relief, dated April 

10, 2015. 

4 
On May 5, 2015, Judge Sullivan issued a written Initial Decision of U.S. 

Administrative Law Judge in which she, inter alia, referenced and adopted the findings 

of her April I, 2015 Order granting summary judgment in favor of the FAA and her April 

10, 2015 Order accepting the AMES stipulation regarding the amount of the proposed 

civil penalty, and assessed &'VIES a total civil penalty of $61,875. On May 6, 2015, 

AMES filed a Notice of Appeal of the Initial Decision with the FAA Decisionmaker2 

STATEMENT OF FACTS 

AMES is a repair station certified under Part 145 of the FARs and is located in 

Wilmington, Ohio. Complaint at 'l[2; Answer at 'l[2; AMES Motion for Summary 

Judgment, Exhibit 1 (FAA Enforcement Investigative Report, Section B, Page 1). AMES 

is authorized by the FAA to perform maintenance on CCIA's B-727 aircraft. FAA 

Enforcement Investigative Report, Section B, Page I. AMES had been contracted by 

Capital Cargo International Airlines, Inc. ("CCIA") to replace the Main Landing Gear 

("MLG") on three of its B-727 aircraft- N287SC, N898AA and N899AA. At the time, 

CCIA was owned by the same parent corporation as AMES and conducted all-cargo 

operations under Part 121 of the FARs, but CCIA is no longer an operating entity. 

Complaint at 'l[3; Answer at 'l[3. 

2 AMES also filed two Notices of Appeal on April 7, 2015 regarding Judge Sullivan's 

March 30,2015 Order denying its Motion for Summary Judgment and Judge Sullivan's 

April!, 2015 Order granting summary judgment in favor of the FAA. In her AprillO, 

2015 Order accepting the AMES stipulation as to the arnonnt of the propose civil penalty, 

Judge Sullivan stated, while intended for the FAA Administrator, the Notices of Appeal 

of the April 1, 2015 and March 30, 2015 Orders appear to be premature under 14 C.F.R. 

§ 13.233 and that, once an Initial Decision is filed, AMES has the right under 14 C.F.R. § 

13.233 to file a Notice of Appeal with the FAA Administrator. Order Accepting 

Respondent's Proffered Stipulation, Canceling the Hearing, Denying Any Inferred 

Request for Interlocutory Appeal, and Granting Other Relief, dated AprillO, 2015 at 4. 

5 
On or about March 2010, AMES replaced both MLG on CCIA aircraft N287SC; 

on or about October 2009, AMES replaced both MLG on CCIA aircraft N898AA; and on 

or about August 2009, AMES replaced both MLG on CCIA aircraft N899AA. 

Complaint at 'I[ 4.a. -c.; Answer at 'I[ 4.a-c. Each of the MLG changes on the three B-727 

aircraft included reinstalling and rigging the previously installed main landing gear doors 

(the so-called "flying doors") on the aircraft after the MLGs had been replaced. !d. 

CCIA had a Continuous Airworthiness Maintenance Program ("CAMP") that required 

the B-727 Aircraft Maintenance Manual ("AMM") to be followed in performing 

maintenance on its B-727 aircraft. Complaint at 'I[ 5; Answer at 'I[ 5. The FAA alleged 

that AMES improperly reinstalled and rigged the landing gear doors because the work 

was not accomplished in accordance with the B-727 AMM, which AMES has denied. 

Complaint at 'I[ 4. d.-e.; Answer at 'I[ 4.d.-e. 

Accordingly, the FAA alleged that each time AMES performed maintenance on 

the B-727 aircraft, AMES had violated three provisions of the PARs: 14 C.P.R. § 

145.205(a); 14 C.P.R.§ 43.13(a); and 14 C.P.R.§ 43.13(b). Complaint at 'I[ 6. This 

resulted in a total of nine alleged violations (i.e., 3 violations for each of the three 

aircraft). Aprill, 2015 Order at 3. The FAA viewed the situation on a "per-aircraft 

basis" so that there were three alleged violations with respect to each aircraft (as opposed 

to treating each MLG installation as its own act of violation) but the FAA argued that 

since two MLG changes were performed on each aircraft that this is an aggravating 

factor. FAA Motion for Summary Judgment at 23-24. Accordingly, the FAA sought a 

civil penalty of $20,625 for each aircraft, or a total civil penalty of $61,875 for all nine 

6 
violations.3 FAA Motion for Summary Judgment at 23-24; Complaint at'![ 8; April I, 

2015 Order at 3, 29-30. 

As noted, on March 22, 20 I 0, AMES replaced both MLG on CCIA aircraft 

N287SC, including reinstalling and rigging the landing gear doors after the MLGs were 

changed. FAA Motion for Summary Judgment Exhibits Wand X. Approximately three 

weeks later, on Apri116, 2010, N287SC experienced a vibration incident after departing 

Cincinnati- Northern Kentucky International Airport ("CVG") and had to return to the 

airport. FAA Motion for Summary Judgment Exhibits Y, Z, AA and BB. A vibration 

inspection was conducted by CCIA, which found "excessive freeplay in [the aircraft's] 

upper rudder and RMLG outboard gear door actuation rod." FAA Motion for Summary 

Judgment Exhibits Z. The inspection revealed that a tubular bearing was missing from 

the landing gear door actuation rod assembly of the aircraft's right-hand MLG. FAA 

Motion for Summary Judgment Exhibits Z, AA, BB. On May 27, 2010, FAA Aviation 

Safety Inspector Bobby Evens sent a letter of investigation regarding this incident to 

CCIA, to which CCIA sent a written response on June 8, 2010. FAA Motion for 

Summary Judgment Exhibits AA and BB. CCIA's June 8, 2010 response advised the 

3 The Judge was not persuaded by the FAA's argument that since two landing gear doors 

were involved on each aircraft that this should be an aggravating factor in determining 

the appropriate amount of the civil penalty. As noted above, however, on April 7, 2015, 

AMES filed a stipulation in which it stated that if Judge Sullivan's April!, 2015 Order 

and her March 30, 2015 Order Denying Respondent's Cross-Motion for Summary 

Judgment are sustained after AMES has exhausted its rights of appeal, that AMES will 

not dispute the amount ofthe civil penalty ($61,875) proposed in the FAA's Complaint 

or the per aircraft equivalent thereof ($20,625). See Respondent's Stipulation Regarding 

the Amount of the FAA's Proposed Civil Penalty or, In Lieu Thereof, Partial Withdrawal 

of Request for a Hearing on the Amount of the Propose Civil Penalty, dated April 7, 

2015. The AMES stipulation was accepted by the Judge on AprillO, 2015. See Order 

Accepting Respondent's Proffered Stipulation, Canceling the Hearing, Denying Any 

Inferred Request for Interlocutory Appeal, and Granting Other Relief, dated April!O, 

2015. 

7 
FAA that in March 2010, AMES replaced the MLG on N287SC and that the tubular 

bearing is to be removed and re-installed during the MLG changes. FAA Motion for 

Summary Judgment Exhibits BE. CCIA also stated in its response that "no other records 

could be located for the removal of this tubular bearing or the wing door rod" and that 

"A.M.E.S. maintenance was the last certifying agency signing for the installation of the 

tubular bearing until the aircraft turn back with the high frequency vibrations on Aprill6, 

2010 .... " Id. However, as Jeffrey Becker, the AMES Director of Quality Assurance and 

Training, explained during his deposition on October 29, 2014, CCIA had sent its June 8, 

2010 response to the FAA before AMES and completed its investigation of the matter, 

the AMES mechanic performing the work specifically remembered re-installing the 

tubular bearing on N287SC, and an intervening tire change was performed on the 

outboard tire of N287SC on March 25, 2010, which very likely may caused the tubular 

bearing to go missing when the landing gear door was moved out of the way to facilitate 

the tire change. AMES Opposition at 17-21, Exhibit 1 (Becker Tr. at 42-49, 124-127); 

Exhibit 7 (CCIA Aircraft Technical Log Report Documenting Tire Change). 

Subsequently, between May 25-27, 2010, FAA Principal Maintenance Inspector 

Frank Lipinski, and FAA Aviation Safety Inspector Charles Gasche conducted an 

inspection of CCIA aircraft N287SC, N898AA and N899AA at Toledo International 

Airport. FAA Motion for Summary Judgment, Exhibits I and J. CCIA and AMES 

representatives were also present during a portion of the Toledo inspection, including 

Jeffrey Becker, the AMES Director of Quality Assurance and Training. FAA Motion for 

Summary Judgment Exhibits I; AMES Motion for Summary Judgment, Exhibit 1 (FAA 

Enforcement Investigative Report, Section B, Page 2). During the inspection of the three 

8 
aircraft, a number of discrepancies were observed by the FAA inspectors in the area of 

the main landing gear doors. FAA Motion for Summary Judgment Exhibits, I and J. 

N287SC and N898AA were ferried from Toledo to the AMES facility in Wilmington, 

Ohio to address the discrepancies. FAA Motion for Summary Judgment, Exhibits Sand 

CC. Some of the discrepancies on N899AA were addressed at Toledo and the aircraft 

proceeded on two revenue flights and was then returned to the AMES facility for further 

repairs. FAA Motion for Summary Judgment, Exhibit M; AMES Motion for Summary 

Judgment, Exhibit 3 (Becker Tr. at 52). 

It is undisputed that between the time AMES performed the MLG changes on 

N287SC (March 2010), N898AA (October 2009) and N899AA (August 2009), and the 

FAA's May 25, 2010 inspection, each of the three aircraft were engaged in continuous 

and extensive flight operations. FAA Motion for Summary Judgment at 3, 5, 9 and 

Exhibit H; AMES Motion for Summary Judgment, Exhibit 1 (FAA Enforcement 

Investigative Report, Section B, Page 3 (stating that all three aircraft had been "operated 

continuously" and "for many months and cycles" between the time AMES performed the 

MLG changes and the aircraft were inspected by the FAA). As AMES noted in its 

Answer in Opposition to Complainant's Motion for Summary Judgment, during this time, 

the landing gear on N899AA were extended and retracted 1,568 times (784 complete 

cycles), the landing gear on N898AA were extended and retracted 1,256 times (628 

complete cycles) and the landing gear on N287SC were extended and retracted 344 times 

(172 complete cycles). AMES Opposition at 7 (citing FAA Enforcement Investigative 

Report, Section B, Page 3; FAA Motion for Summary Judgment at 3, 5 and 9, Exhibit H). 

Each of the three aircraft experienced at least the normal level of wear and tear during the 

9 
substantial period of time between the MLG changes and the FAA's May 25,2010 

inspection. In addition, as noted, during this period aircraft N287SC underwent an 

intervening tire change that likely caused the tubular bearing to go missing (AMES 

Opposition at 17-22, Exhibit 1 (Becker Tr. 42-49, 123-127), Exhibit 7(CC1A Aircraft 

Technical Log Report)), and the other two aircraft also likely had intervening 

maintenance that could have caused certain of the discrepancies. AMES Opposition at 6-

17. 

The work that was done to address the discrepancies found on the three aircraft 

upon their return to the AMES facility was documented on a series of so-called "nonroutine" forms. The non-routine forms for N899AA were attached to the FAA's Motion 

for Summary Judgment as Exhibit N; the non-routine forms for N898AA were attached 

to the FAA's Motion for Summary Judgment as Exhibit T; and the non-routine forms for 

N287SC were attached to the FAA's Motion for Summary Judgment as Exhibit DD. 

AMES provided a detailed explanation for each of the discrepancies as 

documented on the non-routine forms on pages 8-17 of its Answer in Opposition to 

Complainant's Motion for Summary Judgment. Among other things, AMES explained in 

its Opposition that some of the corrective actions taken were not, in fact, required to be 

done as the aircraft operator instructed AMES to make the aircraft "like new" and 

"immaculate" even if the AMM did not compel the installation of new parts (AMES 

Opposition at 2, Exhibit !(Becker Tr. at 76, 85-86), upon a more complete inspection, 

some of the discrepancies initially identified, such as "improper hardware stack up," were 

found not to be the case (AMES Opposition at 2 and 8-9), and the FAA sought to 

attribute to AMES discrepancies related to hinge covers (called access doors in the 

10 
AMM) and hinge pins even though the applicable AMM section did not direct the 

maintenance provider (AMES) to install hinges or otherwise disassemble the door by the 

hinge. AMES Opposition at 2, 10, 12-14, 17. Further, the AMES Opposition noted that 

Jeffrey Becker, the AMES Director of Quality Assurance and Training, testified that the 

corrective action required to rectify any discrepancy was of a minor nature, such as 

"blend and treat" type repairs, that can readily be explained by the obvious impact of 

normal wear and tear on the aircraft. AMES Opposition at 2, Exhibit 1 (Becker Tr. at 86-

88, 102-104). 

Mr. Becker's position was fully consistent with that of Daniel J. Hancher, the 

outside expert who AMES retained in this matter. The Expert Report of Daniel J. 

Hancher was attached as Exhibit 2 to the AMES Opposition. Mr. Hancher, who 

reviewed the non-routine forms and the corrective actions taken for each of the three 

aircraft stated that based on his review of the maintenance records that he had "no 

difficulty concluding that the issues requiring attention were of a 'wear and tear' variety 

and not the result of improper reinstallation of the MLGs and flying doors." Expert 

Report of Daniel J. Hancher, dated April 30, 2014, at'![ 5. Finally, AMES explained in its 

Opposition that the FAA chose to focus on the discrepancies that were documented as a 

result of the FAA's initial inspection of the three aircraft, and the FAA ignored the more 

telling and dispositive evidence as reflected in the non-routine forms' description of the 

corrective actions that were actually taken to address the discrepancies. AMES 

Opposition at 6-7 (citing Mr. Becker's deposition testimony in which he explained that a 

discrepancy write up is just an "initial judgment." Exhibit 1 (Becker Tr. at 113)). 

11 
On September 30, 2010, Inspector Lipinski sent a letter of investigation to CCIA 

regarding the May 25, 2010 inspections at Toledo and the MLG changes on N898AA, 

N899AA and N287SC. FAA Motion for Summary Judgment, Exhibit FF. CCIA 

responded to Inspector Lipinski's letter of investigation on October 25,2010. FAA 

Motion for Summary Judgment, Exhibit H. CCIA's October 25, 2010 response attached 

CCIA Corrective Action Report (CAR)#QAACVG004; CAR#QAACVG005 and 

CAR#QAACVG006. CAR# QAACVG004 and a related Discrepancy Notice were 

attached to the FAA Motion for Summary Judgment as Exhibit P and 0, respectively. 

CAR# QAACVG005 and CAR#QAACVG006 were attached to the FAA Motion for 

Summary Judgment at Exhibits V and EE, respectively. A Discrepancy Notice related to 

these two CARs was attached to the FAA Motion for Summary Judgment at U. 

Subsequently, on March 3, 2011, Inspector Lipinski also sent AMES a letter of 

investigation regarding the matter. FAA Motion for Summary Judgment, Exhibit GG. 

On March 21, 2011, Jeffery Becker responded on behalf of AMES to Inspector Lipinski's 

March 3, 2011letter of investigation, which again attached CCIA CAR #QAACVG004, 

CAR#QAACVG005 and CAR#QAACVG006, and a B-727 MLG Door Training Module 

that AMES had developed, among other documents. Mr. Becker's March 21, 2011 

response was attached to the FAA Motion for Summary Judgment at Exhibit HH, and the 

AMES B-727 MLG Door Training Module was attached as Exhibit QQ to the FAA's 

Reply in Support of Motion for Summary Judgment. Mr. Becker's March 21, 2011 

response, the CCIA CARs and the B-727 MLG Door Training Module are discussed in 

detail below in Section I. F. 

12 
STANDARD OF REVIEW 

Pursuant to 14 C.F.R. § 13.233(b), there are three standards of review of an Initial 

Decision issued by an Administrative Law Judge, depending on whether findings of fact, 

conclusions of law, or prejudicial errors are implicated. For findings of fact, the FAA 

decisionmaker determines whether the Administrative Law Judge's findings are 

supported by a preponderance of reliable, probative, and substantial evidence. 14 C.F.R. 

§ 13.233(b)(l). For conclusions of law, the FAA decisionmaker determines whether they 

were made in accordance with applicable law, precedent, and public policy. 14 C.F.R. § 

13.233(b)(2). Finally, the FAA decisionmaker determines whether the Administrative 

Law Judge committed any prejudicial errors that support the appeal. 14 C.P.R. § 

13.233(b)(3). 

SUMMARY JUDGMENT STANDARD 

Under 14 C.F.R. § 13.218(f)(5), a party may file a motion for a decision on the 

merits when it asserts that there is no genuine issue of material fact in dispute and the 

party making the motion is entitled to a decision as a matter of law. The party making 

the motion for a decision has the burden of showing that there is no genuine issue of 

material fact disputed by the parties. If such a motion is filed prior to the hearing, it 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. 1996-24, n. 3 (Aug. 13 1996); 

Stebbins Aviation, Inc., DMS No. FAA-2000-7576-16, n. 3 (Aug. 30, 2004)(Initial 

Decision). 

Summary judgment is appropriate where "there is no genuine dispute as to any 

material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 

13 
56( a). A fact is "material" if it is capable of affecting the substantial outcome of the 

litigation. Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). A dispute is 

"genuine" if the evidence is such that a reasonable trier of fact could return a verdict for 

the non-moving party. Scott v. Harris, 550 U.S. 372, 380 (2007); Dulaney v. Packaging 

Corp. of America, 673 F.3d 323, 330 (4th Cir. 2012). On a motion for summary 

judgment, all evidence and inferences are to be viewed in the light most favorable to the 

non-moving party. Rosetta Stone Ltd. v. Google, 676 F.3d 144, 150 (4th Cir. 2012). 

Further, in ruling on a motion for summary judgment, the Court "do[es] not weigh the 

evidence." Hardwick ex rei. Hardwick v. Heyward, 711 F.3d 426, 434 (4th Cir. 2013), 

cert. denied 134 S.Ct. 201, (Oct. 7, 2013) (quotation omitted); see also Anderson v. 

Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) ("Credibility determinations, the weighing 

of the evidence, and the drawing of legitimate inferences from the facts are jury 

functions, not those of a judge, whether he is ruling on a motion for summary judgment 

or for a directed verdict."). 

ARGUMENT 

I. In Ruling on the FAA's Motion for Summary .Judgment, the .Judge 

Impermissibly Weighed Evidence, Made Prejudicial Errors, and the 

Decision was Not Made in Accordance with Law, Precedent, and 

Public Policy. 

It is well established that in ruling on a summary judgment motion, courts should 

not weigh conflicting evidence in favor of one party and against the other. Sloban v. 

Mahoning Youngstown Cmty. Action P'ship, 2015 U.S. App. LEXIS 3928 *10 (6'h Cir. 

20 15) ("A district court may not weigh evidence at summary judgment; rather, the court 

must determine whether there is a genuine issue of fact for trial.") (citing Anderson v. Liberty 

Lobby, Inc., 477 U.S. 242, 249 (1986)); Potter v. Synerlink Corp., 562 Fed. Appx. 665, 

14 
*676, fn. 9; 2014 U.S. App. LEXIS 7394, **27 (lO'h Cir. 2014) ("We do not, however, 

weigh evidence on summary judgment, and when a reasonable jury could find for the 

nonmoving party, summary judgment is inappropriate."); O'Leary v. Accretive Health, Inc., 

657 F. 3d 625, 629; 2011 U.S. App. LEXIS 19321, **11 (7th Cir. 2011) ("It is not for courts 

at summary judgment to weigh evidence or determine the credibility of [a witness's] 

testimony ... ")(quoting Berry v. Chicago Transit Auth., 618 F.3d 688, 691 (7th Cir. 2010)). 

Despite this well established rule, in several instances in her April!, 2015 Order, the 

Judge improperly weighed evidence in favor of the FAA to support grant of the FAA's 

Motion for Summary Judgment. 

A. The Judge Ignored Ample Evidence that the Flying Doors Had 

Only Minor Discrepancies that Were the Result of Normal Wear 

and Tear. 

First, despite evidence to the contrary, the Judge credited Inspector Lipinski's 

testimony that the damage found on the aircraft was caused by improper installation and 

rigging of the flying doors and not caused by wear and tear. The Judge noted in her April 

I, 2015 Order "Inspector Lipinski acknowledged that each aircraft had been used after 

the Respondent performed the MLG maintenance ... [but] Inspector Lipinski testified 

that the damage and problems to the MLG on each aircraft were not 'wear and tear' 

related[]" (April!, 2015 Order at 17) even though he never saw any of the three aircraft 

after his initial visual inspection in Toledo. On the other hand, the Judge completely 

dismissed the proffered testimony ofJeffrey Becker, the AMES Director of Quality 

Assurance and Training, that the discrepancies found during the May 2010 inspection 

were minor in nature, caused by normal wear and tear, and not the result of improper 

installation or rigging of the MLG. April!, 2015 Order at 21, 24. The Judge stated that 

15 
Mr. Becker only "generally speculated" that the damage could have been the result of 

wear and tear, and that Mr. Becker merely "opined" that the MLG damage had been 

"minor." Id at 21. In fact, AMES included sworn deposition testimony from Mr. Becker 

in its Answer in Opposition to Complainant's Motion for Summary Judgment that the 

corrective actions needed to rectify any discrepancy was of a minor nature that required 

only "blend and treat" type repairs and can be explained by normal wear and tear on the 

aircraft. Specifically, Mr. Becker testified with respect to the three aircraft that "when I 

reviewed the specific nonroutine(s) [forms], again, all I see is wear and tear, blend and 

treat. You know, fixing nicks. Replacing a warn seal. Again, to me, these are normal 

operational type wear and tear items." AMES Opposition, Exhibit 1 (Becker Tr. at 86). 

In addition, with respect to N287SC, Mr. Becker testified that "[a]ll those [nonroutine] 

items are either wear and tear or customer requests." AMES Opposition, Exhibit 1 

(Becker Tr. at 103). Mr. Becker also described what he meant by "blend and treat" type 

repairs and to more fully explain the minor nature of such repairs, which is based on his 

engineering background.4 AMES Opposition, Exhibit 1 (Becker Tr. at 87). AMES also 

explained in its Opposition that Mr. Becker's position is fully supported by the Expert 

Report of Daniel J. Hancher, which it attached as Exhibit 2 to its Opposition5 AMES 

Opposition at 2-3, 6, 28. Mr. Hancher stated in his report that he has "no difficulty 

concluding that the issues requiring attention were of a 'wear and tear' variety and not the 

4 Mr. Becker holds an aeronautical engineering degree from Embry-Riddle Aeronautical 

University. AMES Reply, Exhibit 1 (Declaration of Jeffrey Becker at 'I[ l.A), Exhibit 2 

(Becker Tr. at 8). 

5 The Judge held that Mr. Hancher's expert report is inadmissible. For the reasons 

described in Section I. G. below, AMES maintains that this ruling was in error. 

16 
result of improper reinstallation of the MLGs and flying doors." Expert Report of Daniel 

J. Hancher at ~[ 5. 

The Judge also suggested that Mr. Becker's testimony that each of the three 

aircraft had only insignificant "wear and tear, blend and treat" type discrepancies was 

only "based on his personal review of the maintenance records." April!, 2015 Order at 

24. In fact, in addition to reviewing the maintenance records, Mr. Becker also testified 

that after the aircraft were returned to the AMES facility "I went down and at least on a 

daily basis, walked around the aircraft and talked to Charles Working, who was then the 

director of maintenance that was there for Capital Cargo prepping the airplanes and 

talked to my inspectors."6 AMES Motion for Summary Judgment, Exhibit 3 (Becker Tr. 

at 75) Although the Judge noted that Mr. Becker did not have any personal recollection 

more than four years later during his deposition of what, if any, "nicks or flaws" had been 

found on the aircraft (April!, 2015 Order at 23), he clearly testified that he viewed the 

aircraft on a "daily basis" when the work was being performed and that he talked with the 

CCIA Director of Maintenance and the AMES inspectors about the work that was being 

conducted. Given the testimony that he viewed the aircraft on a "daily" basis and spoke 

contemporaneously with the individuals who were supervising the work, Mr. Becker can 

hardly be said to have merely "generally speculated" that the discrepancies were minor in 

nature and the result of normal wear and tear based on a review of the maintenance 

records alone. AMES presented substantial evidence, in the form of Mr. Becker's sworn 

deposition testimony, contradicting Inspector Lipinski's position that the discrepancies 

6 Inspector Lipinski never inspected the aircraft after they were flown to AMES' 

Wilmington facility. AMES Motion for Summary Judgment, Exhibit 2 (Lipinski Tr. at 

203-204); AMES Opposition, Exhibit 3 (Lipinski Tr. at 204). 

17 
were not wear and tear related. Inspector Lipinski, on the other hand, never saw the three 

aircraft after they were flown to the AMES facility in order to conduct a detailed 

inspection of the flying doors. AMES Motion for Summary Judgment, Exhibit 2 

(Lipinski Tr. at 203-204); AMES Opposition, Exhibit 3 (Lipinski Tr. at 204). 

AMES also submitted a sworn declaration from Mr. Becker that was attached as 

Exhibit 1 to the AMES Reply. In paragraph 7 of his declaration, Mr. Becker describes in 

detail the steps undertaken in creating the non-routine forms and emphasized that the 

most important and telling step is the description in the non-routine form of the corrective 

action that was actually undertaken to remedy the situation- not the write-up of the 

initial discrepancy and evaluation portions of the non-routine forms as the FAA relied on 

to support its case. Declaration of Jeffrey Becker at 11 7. Mr. Becker made the same 

point during his sworn deposition testimony and which was discussed in the AMES 

Opposition to the FAA Motion for Summary Judgment. AMES Opposition at 7, Exhibit 

3 (Becker Tr. at 113) ("Again, regardless of the discrepancy, the discrepancy is just an 

initial judgment.") 

In the corrective action section, the mechanic who is assigned the task details the 

actual condition of the aircraft and the steps, if any, required to remedy the situation. 

Declaration of Jeffrey Becker at 11 7. Mr. Becker then gave as an example, the "improper 

stack up" allegation (pages 9 and 10 of the FAA's Opposition) and specifically nonroutine 0003 for aircraft N899AA (FAA Exhibit N, pages 2-7). Mr. Becker explained 

that while the "Discrepancy" (the initial determination) states "UH MLG Flying Door 

Aft Hinge Has hnproper Hardware Stack Up" and the "Evaluation" reads "Remove and 

Replace Hardware IA W SB 727-32-234," the "Corrective Action" portion of non-routine 

18 
0003 states "Removed Left Main Gear Wing Door Verified Hardware IAW 727 S.B. 

727-32-0234 R3 Reinstalled and Performed Adjust/Test IA W 727 MM 32-12-11." 

(Emphasis added.) The Corrective Action description clearly indicates that the left-hand 

MLG landing gear door was removed, the mechanic verified that the correct hardware 

was in place, and then the mechanic reinstalled the landing gear door and adjusted and 

tested it. AMES also made this point at page 2 and pages 8-9 of its Opposition to the 

FAA Motion for Summary Judgment. As Mr. Becker stated in his declaration, only by 

incorrectly referring to the discrepancy and the evaluation portions of the non-routine 

forms, and not the more telling Corrective Action section, can the FAA make the 

assertion that AMES did not properly rig the flying doors. Declaration of Jeffrey Becker 

at~ 7. AMES made the same point in its Opposition stating "the FAA chooses to focus 

on the discrepancies that were documented as a result of the FAA's initial inspection of 

the three aircraft, [but] ignores the more telling and dispositive evidence and that is the 

corrective actions that were actual! necessary to be taken to address the discrepancies." 

AMES Opposition at 6. 

Mr. Becker concluded that he "consistently asserted that none of the corrective 

action taken by AMES in response to the FAA May 25, 2010 inspection implicates the 

original work performed by AMES when rigging the flying doors on the three subject 

aircraft since a careful review of the corrective action taken reveals evidence of wear and 

tear and not improper rigging of the flying doors." Declaration of Jeffrey Becker at~ 7; 

This is consistent with the deposition testimony given by Mr. Becker and attached to the 

AMES Opposition. AMES Opposition at 2, Exhibit 1 (Becker Tr. at 86-88, 102-104). 

Further, as noted, Mr. Becker's position was corroborated by the AMES outside expert 

19 
witness, who has over 700 B-727 landing gear changes in his background, who stated in 

his report that "[b]ased on [his] review of the corrective actions as documented by 

AMES, I have no difficulty concluding that the issues requiring attention were of a 'wear 

and tear' variety and not the result of improper reinstallation of the MLGs and flying 

doors." AMES Opposition, Exhibit 2 (Expert Report of Daniel J. Hancher at~~ 2 and 5). 

Mr. Becker is well versed and experienced in interpreting and analyzing the nonroutine cards that describe the maintenance work undertaken on the three aircraft. As 

such, the fact that Mr. Becker's conclusion (which was supported by the AMES expert 

witness) that the damage was minor in nature and the result of wear and tear was based, 

in part, on his review of the maintenance records should not have been discounted as the 

Judge did in her decision granting the FAA's Motion for Summary Judgment. April I, 

2015 Order at 24. 

The Judge, however, stated in her April!, 2015 Order that "when asked to 

specifically look at maintenance repair records during his deposition, Mr. Becker was 

often unable to justify his opinion" and cited two examples from Mr. Becker's deposition 

testimony regarding non-route forms related to the alleged improper installation of hinge 

pins on aircraft N287SC and a damaged left-hand flap fairing on N287SC. ld at 24. 

However, in its Answer in Opposition to Complainant's Motion for Summary Judgment 

(pages 6-17), AMES gave for each of the three aircraft detailed explanations of each of 

the non-routine forms, and the corrective actions actually taken by AMES, which 

included references to the relevant portions of Mr. Becker's deposition testimony. 

There, regarding the alleged improper installation of hinge pins on N287SC cited 

by the Judge, AMES explained that there is nothing in the applicable AMM section that 

20 
requires a maintenance technician to insert or secure pins in hinge access doors as part of 

the process of removing and reinstalling the flying doors in connection with a main 

landing gear change. AMES Opposition at 17. Therefore, Mr. Becker testified that he 

had "no comment about what they mean by [hinge pins] improperly installed" or whether 

AMES "had done that." April!, 2015 Order at 24 (citing Becker Tr. at 101). With 

respect to the damaged left -hand flap fairing, AMES explained that it appears to be 

damage from the protruding or loose hinge pin and again noted that the AMM does not 

include any instructions for installing or securing access door hinge pins. AMES 

Opposition at 17. AMES also noted that the non-routine form described the damage as 

minor (i.e., "slight") and that it was repaired by merely blending and treating the area, 

which is indicative of normal wear and tear. /d. The Judge erred by not addressing in 

her April 1, 2015 Order the detailed, case-by-case explanation of the non-routine forms 

provided by AMES in its Opposition to the FAA's Motion for Summary Judgment and it 

simply is not an accurate characterization to claim that Mr. Becker (or AMES) was often 

"unable to justify his opinion" that the aircraft had only insignificant wear and tear, blend 

and treat items that needed repair. 

Even if the Judge questioned the explanations provided by AMES in its 

Opposition and strength of Mr. Becker's deposition testimony and that of its expert 

witness, Mr. Hancher, AMES should nonetheless have been afforded the opportunity to 

present live testimony from its witnesses at hearing so the Judge could evaluate first-hand 

the relative strength of each party's evidence. Weighing such conflicting evidence is 

simply not the function to be undertaken by the Judge in disposing of a summary 

judgment motion. See O'Leary v. Accretive Health, Inc., 657 F.3d 625, 629; 2011 U.S. 

21 
App. LEXIS 19321. **11 (7th Cir. 2011) ("It is not for courts at summary judgment to weigh 

evidence or determine the credibility of [a witness's] testimony ... ")(quoting Berry v. Chicago 

Transit Auth., 618 F. 3d 688, 691 (7th Cir. 2010)). In any event, to survive a motion for 

summary judgment, the non-moving party must only present evidence, when viewed in 

the light most favorable to it, that there is a genuine dispute of material fact. This AMES 

has certainly done through the testimony of Jeffrey Becker and the Expert Report of 

Daniel J. Hancher, both of whom testified that the discrepancies were minor in nature and 

the result of normal wear and tear. The Judge was not free to simply dismiss AMES' 

testimony and expert report as either speculative or unsupported by the evidence. 

B. The Judge Impermissibly Weighed Evidence in Connection with 

the Missing Tubular Bearing on N287SC. 

The Judge also impermissibly weighed evidence when considering the likelihood 

that an intervening tire change on N287SC caused a tubular bearing to going missing. 

The Judge noted that Inspector Lipinski "opined that it was highly unlikely that 

intervening maintenance had caused the damage." April!, 2015 Order at 17 (citing the 

Declaration of Frank Lipinski attached as Exhibit JJ, 7-8, '![ 36-38, to the FAA 

Opposition). The Judge also stated that "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." April!, 2015 Order at 20. The Judge, 

however, went on to note that "[t]he FAA submitted a June 8, 2010 Letter that CCIA had 

sent to FAA Inspector Evans, reporting on its investigation of this specific allegation. 

[FAA Motion for Summary Judgment, Exhibit BE.] This letter, signed again by CCIA's 

Chief Inspector, 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 

22 
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. This position, however, was directly controverted by the sworn deposition testimony 

provided by Jeffrey Becker, which was described in detail in the AMES Answer in 

Opposition to Complainant's Motion for Summary Judgment (pp. 17-22) as well as in the 

AMES Motion for Summary Judgment (pp. 20-21), and the Reply of Respondent to 

FAA's Opposition to Respondent's Motion for Summary Judgment (pp. 9-14). 

Among other things, AMES presented evidence that: 

• On March 25, 2010, three days after AMES completed replacing the MLG 

on N287SC, a tire was replaced on the aircraft's right-hand outboard 

wheel. AMES Opposition at 18, Exhibit 1 (Becker Tr. at 42-45), Exhibit 7 

(CCIA Aircraft Technical Log Report). 

• That outboard tire changes on B-727 aircraft require the landing gear door 

to be repositioned so that the mechanic can gain access to the wheel, the 

B-727 AMM contains specific steps for using the actuating rod to move 

the landing gear door for this purpose, and that in order to change an 

outboard tire it is necessary to reposition the landing gear door further than 

would be the case by simply opening the landing gear door. AMES 

Opposition at 18-19, Exhibit 1 (BeckerTr. at45-47). 

• That a CCIA representative advised AMES that contrary to the 

instructions in the B-727 AMM "at times line maintenance people will 

remove that bolt that contains the tubular bearing and hold up the flying 

door out of the way as they change the wheel." AMES Opposition at 20, 

Exhibit I (Becker Tr. at 124). 

• That the B-727 AMM cautions mechanics, in a conspicuous notice, not to 

remove the bolt in this manner because it will damage the hinge cover 

(AMES Opposition at 20, Exhibit 1 (Becker Tr. at 125), Exhibit 5 (B-727 

AMM, Section 32-45-01)), and that the actuation rod attachment bolt 

holds the tubular bearing in place. AMES Opposition at 20, Exhibit 1 

(Becker Tr. at 115); FAA Motion for Summary Judgement, Exhibit C, 

Figures 401 and 402. 

• That almost every aircraft had some form of hinge cover damage, which 

suggests, despite the cautionary note in the B-727 AMM, that when 

changing outboard tires or wheels mechanics had removed the actuation 

23 
rod attachment bolt and manually raised the door above the normal service 

position thereby causing the damage to the hinge covers. AMES 

Opposition at 20, Exhibit 1 (Becker Tr. at 125). 

• Mr. Becker testified that during the AMES' investigation the mechanic 

who performed the work on N287SC specifically stated that he recalled 

putting the tubular bearing back in when rigging the landing gear door 

after the MLG change.7 AMES Opposition at 20-12, Exhibit 1 (Becker 

Tr. at 125-126). 

• AMES performed a gear swing after replacing the MLG and rigging the 

landing gear doors, the doors met all the fair conditions when the gear 

swing was conducted, and it would have been evident during the 

functional check if the tubular bearing was missing because "there 

would've been issues or problems with that door if that tubular bearing 

was missing when it left the AMES facility." AMES Opposition at 21, 

Exhibit 1 (Becker Tr. at 126). 

• Finally, Mr. Becker testified that the CCIA VP of Maintenance advised 

AMES in an email that N287SC flew perfectly and that no problems were 

noted after the gear change. AMES Opposition at 21, Exhibit 1 (Becker 

Tr. at 126), Exhibit 8 (E-Mail Correspondence from CCIA VP of 

Maintenance to AMES Complementing AMES on its Work). 

Taking all of these facts into consideration, Mr. Becker testified during his 

deposition that he is "fairly confident that AMES left that tubular bearing in" and that he 

7 AMES included the written statement from the mechanic confirming that he replaced 

the tubular bearing as Exhibit 6 to the Reply of Respondent to FAA's Opposition to 

Respondent's Motion for Summary Judgment. The Judge upheld the FAA's objection to 

Exhibit 6 (re-designated as Exhibit 6-R) during the oral arguments on the cross-motions 

for summary judgment, and did not admit or consider the statement, because Respondent 

inadvertently failed to produce the mechanic statement in a timely manner during 

discovery. Order Denying Respondent's Cross-Motion for Summary Judgment, served 

March 30,2015, at 5. However, 14 C.F.R. § 13.222(c) specifically allows for the 

admission of hearsay evidence during civil penalty proceedings, stating that the fact that 

evidence submitted by a party is hearsay goes only to the weight of the evidence and does 

not affect its admissibility. Thus, on summary judgment, the Judge should still have 

taken into account that Mr. Becker provided hearsay testimony during his deposition 

regarding the mechanic's statement that he replaced the tubular bearing. Of course, at the 

hearing on this matter (but not at the summary judgment stage) the Judge is permitted as 

the trier of fact to weigh the strength of such evidence. 

24 
"find[s] it hard to believe that AMES left out that tubular bearing." AMES Opposition at 

21, Exhibit l (Becker Tr. at 126). 

Nevertheless, the Judge dismissed Mr. Becker's explanation regarding intervening 

maintenance causing the tubular bearing to go missing. The Judge cited Mr. Becker's 

deposition testimony in which he described it merely as Respondent's "belief' that the 

tubular bearing had "fallen out" during an intervening tire change. April!, 2015 Order at 

23. The Judge stated that Mr. Becker only "generally accused" Mr. Buck of failing to do 

a "thorough investigation" but did not specify what (if anything) he believed Mr. Buck 

had failed to be thorough about. Id at 24. The Judge noted that Mr. Becker had stated 

that there was "a possibility" that an intervening maintenance event could have been 

responsible for the missing hardware on Boeing N287SC, that Mr. Becker merely 

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

include the tubular bushing in the door installation, and that, as a result, Mr. Becker 

found it "hard to believe" that Respondent had "left out that tubular bearing." Id at 24. 

By discounting Mr. Becker's deposition testimony in this way, the Judge was clearly and 

inappropriately weighing evidence against AMES and in favor of the FAA, to support 

grant of the FAA's Motion for Summary Judgment. 

C. The Judge Made a Prejudicial Error Regarding the Timing of 

AMES' Investigation into the Missing Tubular Bearing. 

Perhaps the Judge's dismissal of Mr. Becker's testimony stems, in part, from her 

confusion over the sequence of events. The Judge stated that during his deposition, Mr. 

Becker reviewed CCIA's June 8, 2010 letter sent by Benjamin Buck to FAA Inspector 

Evans, in which Mr. Buck stated that no intervening maintenance could account for the 

missing tubular bearing. April!, 2015 Order at 23 (citing FAA Exhibit BB). The Judge 

25 
noted that during his deposition Mr. Becker discounted the letter because it had been sent 

to the FAA prior to the Respondent "completing our investigation" and that Mr. Becker 

testified that Mr. Buck had failed to incorporate "the benefit" of the Respondent's 

investigation results into his June 8, 2010 letter. April!, 2015 Order at 23 (citing AMES 

Opposition, Exhibit I (Becker Tr. at 48-49)). The Judge, however, found this to be "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 2010." The Judge stated that "[a]ccording 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." April!, 2015 Order at 23 (citing FAA Exhibits Hand HH). 

The Judge clearly seems to have confused Mr. Buck's October 25, 2010 letter 

(FAA Exhibit H), which was referenced in Mr. Becker's March 21, 2011letter (FAA 

Exhibit HH), with Mr. Buck's prior June 8, 2010 letter (FAA Exhibit BB) regarding the 

missing tubular bearing on N287SC. Mr. Becker's March 21, 2011letter never 

referenced Mr. Buck's June 8, 2010 letter regarding the missing tubular bearing on 

N287SC and Mr. Becker's March 21, 2011letter did not address the issue. The Judge 

appears to have erred on the timing of the AMES investigation into the missing tubular 

bearing, which was not concluded until after Ben Buck's June 8, 2010 letter to the FAA. 

As a result, the Judge placed undue weight on the veracity of Mr. Buck's June 8, 2010 

letter, which indicated that no intervening maintenance could account for the missing 

tubular bearing (which is incorrect as a tire change had been performed three days after 

AMES conducted the MLG change)(AMES Opposition, Exhibit 7 (CCIA Aircraft 

26 
Technical Log Report), and discounted Mr. Becker's deposition testimony criticizing the 

June 8, 2010 letter and CCIA's investigation into the missing tubular bearing. 

The Judge also unfairly criticized Mr. Becker for not explaining in his "deposition 

testimony what, if any, additional independent investigation the Respondent had 

performed beyond the investigation conducted jointly with CCIA, or what the results of 

that investigation might have been." April!, 2015 Order at 23. The Judge further 

criticized Mr. Becker because "[h]e did not specify what investigation 'benefits' Mr. 

Buck should have considered and mentioned in his June 8, 2010 Letter or subsequent 

communications with the FAA." Id. 

If the case was allowed to go to hearing, Mr. Becker would have provided 

testimony to clarify the sequence of events for the Judge and Mr. Becker could have 

expanded on his deposition testimony regarding the AMES investigation into the missing 

tubular bearing so that the Judge would have a better understanding of the issue. AMES, 

however, was denied his opportunity because the Judge apparently misunderstood the 

sequence of events and therefore inappropriately discounted Mr. Becker's deposition 

testimony in ruling in favor of the FAA on summary judgment. 

D. The Judge Impermissibly Weighed Evidence Regarding the 

Significance of Conducting a Gear Swing to Determine if the 

Flying Doors are Improperly Rigged. 

The Judge also was admittedly confused regarding the import of Mr. Becker's 

deposition testimony regarding the need to conduct a gear swing to conclusively 

determine if the flying doors are improperly rigged. April!, 2015 Order at 23. Mr. 

Becker testified as follows at his deposition: 

"First of all, you can't check the rig of a door unless you swing the gear. 

So seeing an airplane, I don't know how anybody, including Mr. Lipinski 

27 
can look at a door and say, hey it's rnisrigged. You can't do that until you 

swing it." 

AMES Opposition at 26, Exhibit 1 (Becker Tr. at 7 I). 

The FAA, however, argued that while it is necessary to conduct a gear swing to 

determine if the landing gear doors are properly rigged, it is possible to determine if the 

doors are rnisrigged without conducting a gear swing. FAA Opposition at 16, FAA 

Exhibit JJ (Declaration of Frank Lipinski at 1]15). 

Concerning Mr. Becker's testimony, the Judge stated that "[i]t was unclear from 

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

discount Inspector Lipinski's statements, or Inspector Gasche' s expert B-727 

credentials and statement, or Mr. Buck's reports, or Mr. Becker's own investigation 

reports and assertions." April 1, 2015 Order at 23 (citations omitted). If the Judge was 

"unclear" about the significance of Mr. Becker's deposition testimony about Inspector 

Lipinski not having seen a gear swing, then the Judge should not have granted summary 

judgment in favor of the FAA8 Instead, the case should have been allowed to go to 

hearing so the Judge could have heard in-person testimony from Mr. Becker on the gear 

swing issue so she understood the significance. This is yet another example of the 

Judge weighing conflicting evidence in favor of the FAA in granting its motion for 

summary judgment. 

8 To defeat the FAA Motion for Summary Judgment, the AMES evidence should have 

been viewed by the Judge in the light most favorable to AMES. Rejecting the 

testimony provided by Mr. Becker, who holds a degree in aeronautical engineering, is 

but another example of the Judge impermissibly weighing evidence. In fact, even the 

FAA agreed that a gear swing was required to determine if a flying door was properly 

faired. FAA Opposition at 16, FAA Exhibit JJ (Declaration of Frank Lipinski at 1]15). 

28 
E. Judge did not Consider the Case Law in Granting Summary 

Judgment for the FAA. 

In granting the FAA's Motion for Summary Judgment, the Judge did not consider 

the case law precedent which provides that when there is a substantial period of time 

between the alleged violations and their discovery, the circumstantial evidence used to 

support the alleged violations must be closely examined to determine its sufficiency. In 

Administrator v. Lewis, NTSB Order EA-1177, 3 NTSB 1241, 1978 NTSB LEXIS 51 

(Aug. 17, 1978), the Board held that "when the gap in time between the alleged violations 

and their discovery is as long as 14 months, the record will be carefully scrutinized to 

insure that the quality of the evidence presented by the Administrator is sufficient to 

establish the reasonable inference that the deficient condition also existed at the time of, 

and resulted from, the respondent's earlier repair and/or inspection." Id at * 16-17. In 

Lewis, the Board found that the record provided "only a tenuous and circumstantial 

connection between respondent's acts and deficiencies noted 14 months later" and 

concluded that given the substantial amount of elapsed time "the Administrator has not 

borne the burden by the requisite substantial, reliable, and probative evidence." Id at 

16* .

9 Both the Lewis case and the Florida Propeller case were discussed in detail in the 

9 In the Matter of Florida Propeller &Accessories, Inc., FAA Order No. 97-32, 1997 

FAA LEXIS 1280 (Oct. 8, 1997) is another example of a case that was dismissed where 

the circumstantial evidence was found to be insufficient to meet the FAA's burden of 

proof. In that case, the FAA Administrator affirmed the initial decision of the 

Administrative Law Judge dismissing a complaint alleging that Florida Propeller 

approved an aircraft propeller for return to service with blades that were worn too thin. 

See id at 1. In that case, the airplane had logged 125 hours of flight time on 

approximately 120 flights between Florida Propeller's overhaul and the discovery of the 

undersized blades, and 46 days passed from the date the aircraft owner reinstalled the 

propeller on the aircraft after Florida Propeller's overhaul until the date the owner 

removed the propeller to have other maintenance performed that resulted in the discovery 

of the undersized blades. See id at *5, n. 10. 

29 
AMES Motion for Summary Judgment (pp. 8-11) and the Lewis case was again cited in 

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

Judgment (pp. 5-6). Further, in the AMES Answer in Opposition to Complainant's 

Motion for Summary Judgment, AMES cited the Lewis case in connection with its 

argument that the FAA had disregarded that the landing gear and flying doors had 

undoubtedly experienced at least the normal amount of wear and tear and, therefore, the 

FAA had "ignore[d] the applicable case law requiring the FAA to present sufficient 

evidence (meeting the standard required by§ 13.223) to show the alleged deficient 

condition of the three aircraft existed at the time AMES completed the landing gear 

changes months earlier. .. " AMES Opposition at 7-8. 

In this case, the FAA Inspector admitted that it he did not see any of the three 

aircraft when AMES changed the MLG on the aircraft on July 31,2009, September 29, 

2009 and March 22, 2010. AMES Motion for Summary Judgment, Exhibit 2 (Lipinski 

Tr. at 202-203); AMES Opposition, Exhibit 3 (Lipinski Tr. at 204-205). The FAA 

Inspector also admitted that he did not see the three aircraft until the ramp inspection on 

May 25, 2010- anywhere from two to nine months after AMES performed the MLG 

changes. AMES Motion for Summary Judgment, Exhibit 2 (Lipinski Tr. at 203-204); 

AMES Opposition, Exhibit 3 (Lipinski Tr. at 204-205). The FAA Inspector further 

admitted that he did not see any of the three aircraft after they were returned to the 

AMES facility for corrective action, that he did not see gear swings conducted on the 

aircraft (which is necessary to detennine if the doors were out of rig (AMES Opposition, 

Exhibit 1 (Becker Tr. at 71)), and that he did not at any time actually see how the doors 

faired (i.e., how they actually tucked smoothly into the fuselage structure). AMES 

30 
Motion for Summary Judgment, Exhibit 2 (Lipinski Tr, at 203); AMES Opposition, 

Exhibit 3 (Lipinski Tr, at 204-205). On the other hand, Mr, Becker, who not only 

reviewed the maintenance records, but who also had actual knowledge of the AMES 

investigation into the FAA allegations, viewed the aircraft on a "daily basis" when they 

were returned to the AMES facility and spoke with the AMES inspectors at the time 

about the work being performed, testified during his deposition that each of the conective 

actions undertaken was of a nainor nature and only done to remedy the impact of normal 

wear and tear, AMES Motion for Summary Judgment, Exhibit 3 (Becker Tr, at 75); 

AMES Opposition, Exhibit I (Becker TL at 86-87) 

Further, it is undisputed that CCIA conducted many operations with the three 

aircraft over an extended period of time between the MLG changes and the time the FAA 

inspected the aircraft, The three aircraft were operated between two and nine months 

from the time AMES completed the MLG changes to the FAA inspected them on May 

25, 2010, During this time, as noted above, the landing gear on N287SC were extended 

and retracted 344 times (172 complete cycles); the landing gear on N898AA were 

extended and retracted 1,256 times (628 complete cycles); and the landing gear on 

N899AA were extended and retracted 1,568 times (784 complete cycles), Indeed, even 

the FAA in its Enforcement Investigative Report stated that all three aircraft had been 

"operated continuously" and "for many months and cycles" between the time AMES 

performed the MLG changes and the aircraft were inspected by the FAA. AMES 

Opposition at 7 (citing FAA Enforcement Investigative Report, Section B, Page 3); FAA 

Motion for Summary Judgment at 3, 5, 9, and Exhibit H. 

31 
Despite these facts, the Judge never addressed the Lewis case (or the Florida 

Propeller case) in her April I, 2015 Order. As noted, the Lewis case calls for the 

circumstantial evidence presented in cases such as this to be "carefully scrutinized" to 

ensure its sufficiency to meet the FAA's burden to prove the alleged violations with 

substantial, reliable, and probative evidence. By refusing to allow the case to go to a 

hearing, the Judge can hardly be said to have "carefully scrutinized" the circumstantial 

evidence presented by the FAA. Accordingly, the grant of summary judgment in favor of 

the FAA was not made in accordance with law, precedent, and public policy (14 C.P.R.§ 

13.233(b)(2)) and therefore the decision should be overturned and the case remanded for 

a hearing. 

F. The Judge's Finding that AMES Admitted to Improperly Rigging 

the Flying Doors is Contrary to the Evidence. 

The Judge incorrectly concluded that the AMES response to the FAA's initial 

Letter of Investigation ("LOI") (FAA Motion for Summary Judgment, Exhibit HH) 

constituted an admission of the charges against the repair station thereby leading her to 

conclude that on the question of whether there remained a genuine material fact to be 

tried, there was none. April!, 2015 Order at 27. The FAA had asserted in its Motion for 

Summary Judgment, quite wrongly, that AMES admitted the violations in its LOI 

response. FAA Motion for Summary Judgment at 16, 19 and 22. In response to this 

FAA argument, AMES clearly laid out the logic demonstrating why the FAA's 

contention was wrong at pages 22 to 27 of the AMES Opposition. Unfortunately, 

without a proper examination of the contents of the LOI response or the crediting of 

testimony of the letter's author, the Judge improperly ignored essential facts and ruled for 

32 
the Complainant. The Administrator should reverse the Judge's ruling and find that 

AMES made no such admission, admissible or otherwise. 

Beyond the Judge's error in impermissibly weighing the evidence in the context 

of ruling on dispositive motions, the Judge's reliance on LOI responses is bad public 

policy. Certificate holders, responding to FAA Letters of Investigation, want to strike a 

cooperative stance with the FAA and not treat every inquiry from an FAA Inspector as 

the first step in a contested enforcement proceeding. Letter responses to LOI's are rarely 

subject to legal counsel review and the forthright airing of positions and reactions to 

possible violations serves a valuable public purpose that furthers the interest of air safety. 

The Judge's ruling would have certificate holders, who are being questioned by the FAA 

at the preliminary stage of a potential enforcement action, go into a defensive crouch that 

will do little, if anything, to allow for the FAA and the certificate holder to reach a 

reasonable understanding of the facts and a resolution satisfactory to both parties. The 

Administrator on appeal should take no action to drill the enforcement resolution process 

as would be the case were the Administrator to allow informal LOI responses to be 

considered admissions against interests. 

The Judge concluded that the AMES authorized representative, Mr. Becker, had 

"expressly adopted the statements and finding that Mr. Buck had provided in his October 

25, 2010 Letter and in CCIA's CARs." April!, 2015 Order at 26. In making this 

finding, the Judge went on to state that Mr. Buck, the CCIA Chief Inspector, in his 

response to a separate FAA LOI concluded that the flying doors had been improperly 

installed and rigged by AMES. FAA Motion for Summary Judgment, Exhibit H, page 2. 

In fact, there was no such express adoption of the CCIA findings by the AMES 

33 
representative in his letter responding to the LOI directed to AMES. FAA Motion for 

Summary Judgment, Exhibit HH. 

What Mr. Becker said in his response was first, the AMES review and actions 

taken were documented in CCIA' s Corrective Action Reports (discussed below). 

Second, he stated, without substantive comment, that the details of CCIA' s investigation 

(not the AMES investigation) were sent to the FAA by Mr. Buck's letter dated October 

25, 2010. Next, he noted that AMES had put in place with CCIA a corrective action plan 

as described in the letter. 

As can be observed, AMES never "expressly adopted the statements and 

findings" of CCIA as found to be the case by the Judge. April 1, 2015 Order at 26. The 

CCIA findings were noted as having been sent to the FAA, but there was no "express 

adoption" by AMES of the CCIA findings. There was an agreed corrective action plan, 

but this does not constitute an admission by AMES that it misrigged the flying doors. 

This is so even though AMES produced a training module and detailed work cards for 

CCIA related to the MLG removal and reinstallation process and rigging of the flying 

doors. By compiling the training aid, AMES wished to satisfy any FAA concern and to 

demonstrate a proper compliance disposition, but certain! y did not agree or concede that 

its prior actions failed to meet applicable regulatory requirements. In fact, conspicuous 

by its absence in any of the cited CARs is any such admission that AMES did not, in fact, 

properly rig the doors. The FAA should encourage certificate holders to be candid in 

responding to LOis, but such responses will not be offered in the future if Law Judges are 

free to use statements made to the FAA in preliminary responses to possible violations, 

34 
which are provided even before a respondent has an opportunity to review the FAA 

compiled EIR. 

What AMES did say in its response to the LOI was that the results of its review 

and action taken were documented on CCIA' s Correction Action Report#' s 

QAACVG004, QAACVG005 and QAACVG006. So what did these reports say, and do 

they support the Judge's finding that AMES "expressly" adopted the statements and 

findings of CCIA? First note that CCIA, the customer of AMES, created the Corrective 

Action Records. AMES, for its part, produced Discrepancy Notices based on the CCIA 

CAR by first, quoting verbatim the CCIA statement of the discrepancy, and then second, 

stating the corrective action being taken. 

Starting with QAACVG0004 (FAA Motion for Summary Judgment, Exhibit P), 

CCIA noted that there was damage to the fairing resulting from a migrating hinge pin. 

When AMES researched the question it determined that a Boeing Product Standard 

Process had been published to address hinge pin migration but the Process was not cross 

referenced in the Boeing published AMM instructions. This was likely because, as the 

AMES witness noted in his deposition, that nothing in AMM 32-11-00 requires the 

maintenance provider to remove or reinstall any access door hinge pins. FAA Motion for 

Summary Judgment, Exhibit C consisting of AMM section 32-11-00. Nonetheless, 

AMES, in the interest of assisting its customers in every possible way, agreed as a 

corrective action, to provide training in the technique suggested, but not mandated, by the 

applicable AMM. At his deposition, Mr. Becker confirmed that removal and replacement 

of hinge pins are not part of the flying door removal and reinstallation instruction. 

AMES Opposition, Exhibit 1 (Becker Tr. at 101, 144-145). Therefore, AMES cannot be 

35 
alleged to have failed to follow the AMM based on allegations of hinge pin migration or 

related discrepancies. And nor can AMES be said to have admitted it misrigged the 

flying doors by reference to this CAR in its response to the FAA LOI. 

Next. AMES responded to the CCIA CARs QAACVG005 and QAACVG006 

(FAA Motion for Sunnnary Judgment, Exhibit U). The CCIA-created QAACVG005 

(FAA Motion for Sunnnary Judgment, Exhibit V) states that its PMI found play in the 

flying door on N898AA that was subsequently determined by CCIA to be due to the door 

being out of rig, noting that the MLG change was done months earlier in October, 2009. 

The CAR also noted that if the flying door did not properly fair, this discrepant condition 

should have been discovered during intervening "A" checks. QAACVG006 (FAA 

Motion for Sunnnary Judgment, Exhibit EE) offered the same statement but with respect 

to N287SC that had its MLG changed in March 2010 noting specifically that the 

condition of flying door should have been discovered during an intervening "A" check. 

Neither of these CAR's directly addressed the original work performed by AMES but 

rather the quality of intervening "A" checks. Under the circumstances, it can hardly be 

found, as concluded by the Judge, that AMES "expressly" admitted to the underlying 

allegations of having failed to perform the MLG removal and replacement in accordance 

with the applicable AMM. 

In connection with the CCIA CARs, certain other corrected actions taken by 

AMES were noted. See, for example, QAACVG005, Page 2. FAA Motion for 

Sunnnary Judgment, Exhibit V. One was the preparation by AMES of task cards used to 

carry out the provisions of AMM 32-001-01 for the removal and replacement of the right 

and left MLG. The second was the AMES-prepared training module highlighting proper 

36 
AMM procedures for removing and replacing the MLG. These task cards were produced 

by AMES for the benefit of it customer, CCIA. FAA Motion for Summary Judgment, 

Exhibit V, Page 2. The second slide of the training material states that it was "suspected" 

the flying doors had not been properly rigged. FAA Reply, Exhibit QQ. The Judge 

wrongly converted this statement of a general suspicion into an express admission by 

AMES that it failed to comply with the AMM, when no such direct admission was 

uttered by AMES in any of the CAR's on which the Judge referred and relied upon. 

While it might have been appropriate for the Judge to have attributed to AMES 

the results of its review of tbe facts as set forth in the cross referenced CARs, one cannot 

possibly stretch the specific CAR-related corrective actions into an express admission of 

the allegations of violations given the limited scope of tbe CARs themselves. To this 

degree, the Judge erred in finding !bat AMES "expressly adopted the statements and 

finding" of CCIA that AMES misrigged tbe flying doors on tbe tbree aircraft since no 

CAR referred to by AMES in its LOI responses makes any such admission. In other 

words, apart from improperly weighing the evidence, the Judge drew a conclusion that is 

clear! y not fact based and, therefore, her grant of summary judgment in favor of the FAA 

was clear and reversible error. 

G. The Judge Erred in Excluding the Expert Report of Daniel J. 

Hancher. 

The Judge also erred in her decision in the April!, 2015 Order that the Expert 

Report of Daniel J. Hancher, the outside expert retained by AMES, was unreliable 

because he was given only limited information to review to prepare his report and 

therefore it was inadmissible. April!, 2015 Order at 27-28. Mr. Hancher's Expert 

37 
Report was included as Exhibit 2 to the AMES Answer in Opposition to Complainant's 

Motion for Summary Judgment, dated February 16, 2015. 

As stated in his Expert Report, Mr. Hancher has extensive experience with MLG 

changes on B-727 aircraft, having control or responsibility for MLG replacements on 

over 700 B-727 aircraft. Expert Report of Daniel J. Hancher at 'll 2. Further, in 

formulating his Expert Report, Mr. Hancher reviewed, among other documents, each of 

the non-routine forms (i.e., the official maintenance records) created when the three 

aircraft were returned to the AMES facility after the FAA's May 2010 inspection and 

which document the work performed on the aircraft. Expert Report of Daniel J. Hancher 

at 'll 2 (second). Mr. Hancher concluded, based on his extensive experience with B-727 

MLG changes and his review of the relevant maintenance records (i.e., the description of 

the corrective actions taken in the AMES non-routine forms) that "I have no difficulty 

concluding that the issues requiring attention were of a 'wear and tear' variety and not the 

result of improper reinstallation of the MLGs and flying doors." Expert Report of Daniel 

J. Hancher at 'll 5. 

In her ruling, the Judge noted that AMES gave Mr. Hancher two sets of 

maintenance records and the FAA-compiled Statement of the Case in this matter to 

review. April!, 2015 Order at 27. The Judge stated, however, that since Mr. Hancher's 

Expert Report "was authored almost one (1) year ago, Mr. Hatcher [sic] did not 

specifically identify the reviewed maintenance records by adnaitted Motion Exhibit 

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

Case' he reviewed." I d. The Judge found that "[t]his made it difficult to be certain as to 

what FAA records he actually did review." I d. 

38 
First, as the Judge noted, Mr. Hancher's Expert Report was authored on April 30, 

2014 and provided to the FAA on May 1, 2014. This was in accordance with the thenapplicable deadline for the parties to exchange initial expert reports. See Order Setting 

Litigation Dates and Procedures, served November 7, 2013 (setting May 2, 2014 as the 

deadline for the parties to exchange initial expert disclosures). 10 Thus, it would have 

been impossible for Mr. Hancher to identify by the exhibit numbers used in the parties' 

motions for summary judgment, which maintenance records he reviewed to prepare his 

report. If the Judge found it "difficult to be certain" which documents Mr. Hancher 

reviewed to draft his Expert Report, she should have allowed the case to go to hearing so 

that Mr. Hancher could take the witness stand and have an opportunity to explain exactly 

which documents he reviewed as the basis for his report. AMES and its expert witness 

were denied this opportunity because the Judge ruled Mr. Hancher's Expert Report 

inadmissible before the case proceeded to hearing. Further, it should be noted that the 

FAA chose not to depose Mr. Hancher to question him about his report even though the 

deposition of expert witnesses was provided for in the scheduling order in this case. See 

Order Granting Respondent's Motion to Exclude, and Granting/Denying Other Motions, 

served February 11,2015 at 2 (expressly rejectingthe FAA's argument that the parties 

never contemplated taking expert depositions in this case). The taking of Mr. Hancher's 

deposition surely would have illuminated which documents he reviewed to prepare his 

10 The litigation schedule was subsequently suspended on May 15, 2014 (see Order 

Granting Joint Motion to Suspend Litigation Dates) and thereafter new deadlines were set 

for the exchange of expert disclosures. See Order Granting/Denying Relief, and 

Modifying the Litigation Dates and Procedures, served September 30, 2014 (setting 

November 19,2014 and December 12, 2014 as the new dates for exchanging initial 

expert disclosures and expert rebuttal disclosures, respectively). 

39 
report, and AMES should not be penalized because the FAA chose not to depose AMES' 

expert witness. 

The Judge went on in her April1, 2015 Order to criticize Mr. Hancher's report 

because he did not review certain documents in this case, including AMES' June 10, 

2010 revised B-727 MLG Door Installation Training Program, FAA Inspector Gasche's 

September 28, 2010 Memorandum, and CCIA's October 25, 2010 Investigation Report, 

among other documents. April!, 2015 Order at 27. Notably, the Judge criticized Mr. 

Hancher's Expert Report because he failed in preparing his report to review "FAA 

Inspector Lipinski's February 17, 2015 Declaration (Exh. JJ) ... or Mr. Jeffrey Becker's 

October 29, 2014 discovery Deposition (Exh. KK)." !d. As noted, however, Mr. 

Hancher's Expert Report was exchanged on May l, 2014, which was one day before the 

then applicable deadline for the parties to exchange initial expert reports. Order Setting 

Litigation Dates and Procedures, served November 7, 2013. Thus, how can Mr. Hancher 

be faulted for not having reviewed two documents - Inspector Lipinski's February 17, 

2015 Declaration and Mr. Becker's October 29, 2014 deposition transcript- which were 

not even in existence at the time Mr. Hancher's Expert report was required to be due? 

Even using the revised deadline for the exchange of initial expert reports (November 19, 

2014), it would have been impossible for Mr. Hancher to review Inspector Lipinski's 

Febmary 17, 2015 Declaration since it was not even in existence for another three 

months. 

The Judge clearly made prejudicial errors in holding that Mr. Hancher's Expert 

Report was inadnaissible. Since Mr. Hancher's Expert Report strongly supports the 

testimony of Jeffrey Becker that the discrepancies found on the three aircraft were minor 

40 
in nature and the result of normal wear and tear, the April!, 2015 Order granting 

summary judgment in favor of the FAA should be overturned pursuant to 14 C.F.R. § 

13.233(b)(3) and the case remanded for hearing. 

CONCLUSION AND RELffiF REQUESTED 

The FAA's Summary Judgment Motion presented a host of facts, most all of 

which were disputed by the parties. Despite the serious and well documented nature of 

the disputes, the Judge improperly weighed the evidence relied upon by the FAA and 

failed to draw all inferences in a manner favorable to AMES, the non-moving party. 

Further, the Judge ignored the applicable case law when the FAA seeks to prove its 

allegations on the basis of circumstantial evidence alone. The Judge also interpreted the 

AMES response to the FAA's Letter of Investigation as an admission of the violations, 

when no such inference can be drawn from the response. Moreover, reliance by the 

Judge on such preliminary responses, particularly, when a respondent lacks a copy of the 

FAA compiled enforcement report, is bad public policy that will diminish the cooperative 

nature of the relationship between certificate holders and the FAA. 

41 
WHEREFORE, for the reasons set forth above, Respondent-Appellant Airborne 

Maintenance and Engineering Services respectfully requests that the Initial Decision of 

US. Administrative Law Judge J.E. Sullivan, served on May 5, 2015, be reversed and the 

case remanded to the Judge for a hearing. 

Dated: June 24, 2015 

Respectfully submitted, 

SILVERBERG GOLDMAN, L.L.P. 

Attorneys for 

AIRBORNE MAINTENANCE AND 

ENG~ERING SER~IC# 

By: .t 

Robert 

Lf 

P. Silverberg, 

/. ~~ Esq. 

L. Jeffrey Johnson, Esq. 

1101 30th Street, N.W. 

Suite 300 

Washington, D.C. 20007 

Tel: (202) 944-3304 

Fax: (202) 944-3306 

Email: rsilverberg@sgbdc.com 

42 
CERTIFICATE OF SERVICE 

I hereby certify that on this 241

h day of June 2015, I caused the foregoing Appeal Brief of 

Respondent-Appellant Airborne Maintenance and Engineering Services to be served upon the 

following: 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building 

Suite 2W1000 

Washington, D.C. 20591 

(Attention: Hearing Docket Clerk, AGC-430) 

Tel: (202) 267-0377 

(original and two copies by FedEx) 

Christopher R. Stevenson, Attorney 

Federal Aviation Administration 

Office of the Regional Counsel, AS0-7 

Southern Region 

1701 Columbia Avenue 

College Park, GA 30337 

Tel: (404) 305-5200 

(one copy by F edEx) 

Jessica E. Kabaz-Gomez 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

Federal Aviation Administration 

800 Independence Ave., S.W. 

Washington, D.C. 20591 

Tel: (202) 267-7395 

(one copy by FedEx)