DEPARTMENT OF ~ *"^' " ' ^' 

TlANSPORTATWORE TH E U.S. DEPARTMEN T O F TRANSPORTATIO N - p i ^ 

TKEi 0PERATf^w'"ora6/e Chief Administrative Law Judge Ronnie A. Yoder 

20I0NOV ?3 P 1=53 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d/b/aUSA3000 Airlines 

Respondent 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

MOTION FOR SUMMARY 

JUDGMENT or DECISION and 

MOTION TO DISMISS 91.13(a) 

AMENDMENT TO COMPLAINT 

Comes now the Respondent, Brendan Airways, LLC d/b/a US A3 000 Airlines 

[hereinafter "USA3 000"] and MOVES the Administrative Law Judge to dismiss all 

charges against the Respondent. 

Following the recent amendment to the Complaint, there are two remaining 

charges under Part and two remaining charges under Part 43. The Part 91 charges are 

identical to those that were already decided in the related case Babbitt v. Sxirratt. By 

using collateral estoppel and the Babbitt v. Surratt, the Part 91 claims should be 

dismissed. The Part 43 allegations can be decided on the fact that the Administrator has 

admitted that he does not know key facts that would be necessary to support the Part 43 

allegations, including the fact that the Administrator cannot point to any maintenance that 

was incorrectly performed by USA 3000, and cannot draw a link between the spoiler 

issue and any maintenance performed by USA 3000. 

.::D 

Contents 

L Facts 3 

A. Introduction 3 

B. The Administrator Fails to Identify What Maintenance Was Improperly 

Performed 4 

C. The Case Against the Pilots 6 

II. Argument 7 

A. Standards for Dispositive Motion 7 

1. Issues Previously Decided and Subject to Collateral Estoppel 8 

RESPONDENTS MOTION FOR SUMMARY Washington Aviation Group, PC and the 

JUDGMENT Law Offices of Jason A. Dickstein 

Page I 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
2. Issues that Are Not Subject to Collateral Estoppel 8 

B. The 91.7(a) Claim Must Be Dismissed Because of Collateral Estoppel 9 

1. Elements of Collateral Estoppel 9 

2. Analysis of Collateral Estoppel Argument With Respect to the 14 C.F.R. § 

91.7(a) Claim 10 

C. The 91.13(a) Claim Must Be Dismissed for Statute of Limitations Reasons 

(Motion to Dismiss) 14 

D. The 91.13(a) Claim Must Also Be Dismissed Due to Collateral Estoppel 

(Motion for Summary Judgment) 16 

1. The Issue Decided in the Prior Proceeding is Identical With the Issue 

Presented in the Second 16 

2. The Party Against Whom Collateral Estoppel is Asserted Was a Party in the 

Prior Litigation 17 

3. The Prior Adj udication Ended in a Final Judgment on the Merits 18 

4. The Administrator (the Party Against Whom the Doctrine is Asserted) Had a 

Fair Opportunity to Litigate the Issue Because the Administrator was a Party to the 

Prior Litigation 18 

E. Conclusion of Collateral Estoppel Arguments 19 

F. The 14 C.F.R §§ 43.13(a) and 43.13(b) Claims Must Be Dismissed 19 

1. Legal Standards for the Part 43 Claims 19 

2. The Administrator Bears the Burden to Demonstrate Significant Probative 

Evidence in Support of Its Position 20 

3. The Administrator Does Not Say What Maintenance Was Performed 

Inadequately 21 

4. The Administrator Does Not Knows Who Put the Spoilers In Maintenance 

Mode and Does Not Know How or When the Spoilers Were Put in Maintenance 

Mode 22 

5. Other Possible Causes Make it Inappropriate to Assume Causation 24 

6. USA 3000 Did Not Perform the Maintenance that was Considered Inadequate 

25 

G. Statement Concerning Part 121 Claims 26 

III. Conclusion 26 

CERTIFICATE OF SERVICE 28 

APPENDIX A: Potentially Moot Part 121 Arguments 29 

A. The 14 C.F.R §§ 121.153(a)(2) and 121.628(a)(5) Claims Must Be Dismissed 

Because the Flight Was Outside the Scope of Part 121 29 

RESPONDENT'S MOTION FOR SUMMARY Washington Aviation Group, PC and the 

JUDGMENT Law Offices of Jason A. Dickstein 

Page 2 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
B. Application of the Collateral Estoppel Argument to the 14 C.F.R. 

§ 121.153(a)(2) Claim 32 

DECLARATION OF JOSEPH MILLER 33 

Joseph Miller Exhibits 38 

APPENDIX C: Judge Fowler's Decision in Babbitt v. Surratt 

APPENDIX D: NTSB's Decision Affirming Babbitt v. Surratt (on appeal) 

APPENDIX E: NTSB's Decision Affirming Babbitt v. Surratt (on reconsideration) 

APPENDIX F: Complainant's First Response to Respondent's First Set of Interrogatories, 

Requests for Production of Documents, and Requests for Admissions, Response to 

Interrogatories #1-13 (pages 1-4) 

APPENDIX G: Complainant's Second Response to Respondent's First Set of 

Interrogatories, Requests for Production of Documents, and Requests for Admissions, 

Response to Interrogatory #18 and Request for Production #11 

I. Facts 

A. Introduction 

This is a case about an Airbus A320 aircraft known by U.S. registry N265AV 

["The Aircraft"]. The Aircraft was owned by ILFC, and it was operated under lease by 

USA 3000. See Declaration of Joseph Miller at ^^j 3-5. 

USA 3000's lease on The Aircraft was coming to an end. See id at ^ 6. It is 

normal, at the end of such a lease, to put the aircraft into heavy maintenance in order to 

return it to the condition required by the lease. See id At the end of the maintenance 

cycle, such a leased aircraft would be returned to the lessor. See id at T[| 6-10. In this 

case, this was exactly what was occurring in the Spring of 2008. Id 

USA 3000 contracted with AAR to perform lease-end heavy maintenance on The 

Aircraft. See id at T[ 6. Thepurposeoftheheavy maintenance was to make The Aircraft 

ready to be returned to ILFC. Seeid at^^6-10. ILFC also contracted with AAR to 

perform certain work to make the aircraft ready for the next lessee (State Transport 

Russia). See id at Tit 34-35. 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page 3 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
On May 15,2008, tests on the aircraft confirmed that the spoilers were in 

operational mode. See id at ^^ 12-14. 

On May 17,2008, The Aircraft was flown on a maintenance acceptance flight. 

Babbitt V. Surratt. EA-5514,2010 NTSB LEXIS 31 at +1 n.2 (March 23,2010). The 

maintenance acceptance flight was flown by two pilots - Captain Tony Scot Surratt and 

Captain Frank William Walker. A maintenance acceptance flight is an operational test of 

the maintenance performed. 14 C.F.R. § 91.407(b). 

B. The Administrator Fails to Identify What Maintenance Was 

Improperly Performed 

In the Complaint, the Administrator claimed that: 

"Prior to the flight, maintenance was performed on the aircraft in which the 

spoiler servo actuators for left wing roll spoilers three and five were placed in 

the maintenance mode." Complaint at Allegation 4 of Section II. 

USA 3000 sought discovery on this allegation, and asked: 

"Interrogatory #1: Allegation 4 of section II of the Complaint contends that the 

spoiler servo actuators were placed in the maintenance mode during maintenance. 

On what date and during what maintenance operation were the spoiler servo 

actuators placed in the maintenance mode?" Respondent's First Set of 

Interrogatories, Requests for Production of Documents, and Requests for 

Admissions. Interrogatory #1. 

The Administrator answered by admitting that: 

"the Complainant does not know the exact date of the maintenance ... the 

Complainant does not know during what maintenance operation the spoiler servo 

actuators were placed in the maintenance mode, however it appears that the 

maintenance was performed by AAR." Complainant's First Response to 

Respondent's First Set of Interrogatories. Requests for Production of Documents, 

and Requests for Admissions. Response to Interrogatory #1. 

The part of this response that blames AAR for placing the spoilers in maintenance 

mode is inconsistent with documents produced by the Administrator in response to 

discovery in this case. In several FAA Program Tracking and Reporting Subsystem 

RESPONDENTS MOTION FOR SUMMARY 

JUDGMENT 

Page 4 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
(PTRS) Data Sheet, provided in response to USA 3000's discovery request, the 

Administrator admit that the FAA's own investigators could not determine that any AAR 

employee put the spoilers in maintenance mode: 

"05-20-2008 TO 06-16-2008 - CONDUCTED INVESTIGATION REGARDING 

THE ALLEGED IMPROPER MAINTENANCE. COULD NOT PROVE THAT 

ANY AAR EMPLOYEE PERFORMED THE IMPROPER POSITIONING OF 

THE LEFT WING SPOILERS 3 AND 5 TO THE MAINTENANCE MODE." 

FAA PTRS record fi-om Inspector LXC for EIR 2008SO190220 (all capitals in 

original) (Found in Appendix G to this Motion). 

The discovery evidence shows that the Administrator does not know who placed 

the spoilers in the maintenance mode; and the Administrator cannot show that any AAR 

employee placed the spoilers in the maintenance mode. This is a critical evidentiary 

failure, because there is also no evidence that any maintenance was incorrectly 

performed. Instead, the Administrator relies on the proposition that the spoilers were in 

maintenance mode, and works backwards to assume all of the other facts about the 

allegation - the relationship between performance of some maintenance and the spoilers 

arrival into maintenance mode (causation) is assumed, and also the proposition that 

maintenance was improperly performed (the alleged causal act) is also assumed. 

The Administrator cannot reasonably claim that he has found additional facts to 

support the allegation that USA 3000 performed maintenance incorrectly (allegation four 

in the Complaint), because in interrogatory #2, USA 3000 asked: 

Interrogatory #2: Please identify all of the facts that you contend support 

Allegation 4 of section II of the Complaint. Respondent's First Set of 

Interrogatories. Requests for Production of Documents, and Requests for 

Admissions. Interrogatory #2. 

In response to this, the Administrator explained: 

Prior to the flight there were several indications in the cockpit suggesting that left 

and right wing roll spoilers 3 and 5 were not operational, during the flight these 

roll spoilers did not function, and after the flight it was determined through visual 

inspection that the spoiler servo actuators were placed in the maintenance mode. 

Complainant's First Response to Respondent's First Set of Interrogatories. 

Requests for Production of Documents, and Requests for Admissions. Response 

to Interrogatory #2. 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Pages 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
It is clear that the Administrator's position is that the only evidence of any 

improper maintenance is the fact that the spoilers (in some identified way) ended up in 

maintenance mode. But nowhere in this answer does the Administrator specify any facts 

to support the allegation that USA 3000 performed maintenance incorrectly. And as we 

see in the enforcement case against the pilots. Judge Fowler disagreed with the 

Administrator's contention concerning pre-flight indications of failures. 

C. Tiie Case Against th e Pilots 

The Administrator brought certificate suspension actions, including 14 C.F.R. §§ 

91.7(a) and 91.13(a) charges, against the two pilots on this flight. The matter was heard 

before the honorable Chief Judge Fowler. 

Judge Fowler found that the pilots did not know that the spoilers were inoperative 

at the time of take-off. See Babbitt v. Surratt. SE-18562, 2009 NTSB LEXIS 106 at *12, 

*14, *16 (September 2,2009). He found that the pilots leaned that the spoilers were 

inoperative after take-off. Id. at * 13-* 14, * 17. He found that it was reasonable for the 

pilots to have continued their maintenance acceptance flight. Id. at"' 14,"' 17-18. Judge 

Fowler noted that the pilots did not have knowledge of an imairworthy condition during 

the flight. Id at * 10. Because the pilots did not have knowledge of an unairworthy 

condition at the time of takeoff, there was no violation of 91.7(a) at the time of takeoff. 

Id. at * 14. Because the QRH permitted continued flight upon learning of inoperative 

spoilers, and no other resource provided contrary guidance. Judge Fowler held that there 

was no violation of 91.7(a) after the time of takeoff. Id at * 14-* 15. Judge Fowler 

specifically foimd that each pilot did not operate the aircraft in a careless maimer so as to 

endanger the life or property of another and therefore did not violate 14 C.F.R. § 

91.13(a). Idaf^H, *17-18. 

On appeal, the National Transportation Safety Board (NTSB) affirmed Judge 

Fowler's rulings. Babbitt v. Surratt. EA-5514,2010 NTSB LEXIS 31 at *26-'*27 (March 

23,2010). The Board agreed that the pilots had the discretion to continue with the flight, 

and that the decision was reasonable. Id at *26-*21. 

The Administrator petitioned for reconsideration of the Board's decision, and the 

Board affirmed their own decision. Babbitt v. Surratt. EA-5527,2010 NTSB LEXIS 56 

RESPONDENTS MOTION FOR SUMMARY 

JUDGMENT 

Page 6 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
(June 25,2010). On reconsideration, the Board clearly stated that the Administrator had 

failed to prove that the pilots had knowledge of an unairworthy condition prior to takeoff. Id at *2. The Board explained that the evidence showed that the pilots had a 

"green" ECAM (free of error messages) prior to take-off Id at *6-*7. The Board stated 

that the pilots did not know, nor should they have reasonably known, that the aircraft was 

in an unairworthy condition. Id at *9-* 10. The Board concludes that the pilots acted 

reasonably in their decisions (they did not act recklessly nor carelessly). Id at * 13. 

II. Argument 

A. Standards for Dispositive Motion 

The Administrative Law Judge shall grant a party's motion for decision if the 

evidence shows that (1) there is no genuine issue of material fact and (2) that the party 

making the motion is entitled to a decision as a matter of law. 14 C.F.R. § 13.218(f)(5). 

A Motion for Decision is adjudicated imder the same standards as a motion for summary 

judgment. Summary judgment is appropriate when there is no genuine issue of material 

fact and the moving party is entitled to judgment as a matter of law (See 14 C.F.R. § 

13.218(f)(5); cf. Fed. R. Civ. P. 56(c)) or when no reasonable decision-maker could 

return a verdict for the nonmoving party. Anderson v. Liberty Lobby. Inc.. 477 U.S. 242, 

248 (1986). 

One of the main purposes of a summary judgment motion is to dispose of 

factually unsupported claims. See Anderson. 477 U.S. at 249; Celotex Corp. v. Catrett. 

477 U.S. 317,323-24 (1986). In this motion, USA 3000 has the burden of showing that 

there is no genuine issue of material fact disputed by the parties. 14 C.F.R. § 

13.218(f)(5). Although the court must examine the evidence in the light most favorable 

to the non-moving party and draw all reasonable inferences in that party's favor, if (as in 

this case) there are no relevant facts supporting the non-moving party's position, there is 

nothing to construe in its favor. See, e.g. Griffith v William Penn Broadcasting Co.. 4 

F.R.D. 475, 477 (E.D. Pa. 1945). A dispositive motion, and its opposition, may not rely 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

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Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
on a mere assertions or unsupported claims. In Re Horizon Air Industries. Fed. Av. Dec. 

1996-24. 

1. [ssues Previously Decided and Subject to Collateral 

Estoppel 

In this case, the only material facts that are arguably in dispute are facts that have 

been decided in an earlier case and are subject to the doctrine of collateral estoppel. 

Because they have already been decided, the Administrator is estopped from denying the 

facts as they have been found in the earlier case. Thus, those material facts are not 

reasonably in dispute. 

In particular, the Administrator has already fully litigated the § 91.7(a) and § 

91.13(a) claims against the pilots of the Aircraft (claims III(c) and Ill(d) of the Amended 

Complaint). The National Transportation Safety Board found that neither of those claims 

could be sustained against the pilots. As the pilots are the only relevant agents of the air 

carrier for purposes of these claims, no agent of the Respondent could have committed 

these violations and thus the Respondent did not commit these violations. 

2. Issues that Are Not Subject to Collateral Estoppel 

Except with respect to affirmative defenses, the Administrator bears the ultimate 

burden of proof in civil penalty cases. 14 C.F.R. § 13.224(a). 

On issues where the non-movant (the FAA, in this case) bears the ultimate burden 

of proof at trial, the non-movant may not defeat a motion for summary judgment by 

relying upon evidence that is "merely colorable" or "not significantly probative." 

Anderson. 477 U.S. at 249-50 (emphasis added). Accord Summers v. A. Teichert & Son. 

127 F.3d 1150,1152 (9* Cir. 1997). To the contrary, the non-movant must present 

"significant probative evidence tending to support the complaint." Summers. 127 F.3d 

at 1152. Summary judgment should be granted against the complainant when the 

complainant "rest[s] on his allegations ... without any significant probative evidence 

tending to support the complaint." Anderson. 477 U.S. at 249. 

RESPONDENTS MOTION FOR SUMMARY 

JUDGMENT 

Pages 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
With respect to the Part 43 claims that the Administrator has alleged in this case, 

the Administrator cannot present significant probative evidence tending to support the 

allegations of the complaint. In fact, as discussed in this brief, the Administrator has 

admitted that after investigation, it still does not have any evidence to support allegations 

that would be necessary to proving a Part 43 claim against USA 3000, like whether USA 

3000 actually was the person who performed or authorized the 'inadequate maintenance' 

actions alleged in the Complaint! 

B. The 91.7(a) Claim Must Be Dismissed Because of Collateral 

Estoppel 

USA 3000 is a corporate entity and therefore its actions are the actions of its 

agents; its knowledge is the knowledge of its agents. 

USA 3000 had two agents on the aircraft who were operating the aircraft on 

behalf of the company. They were Captain Surratt and Captain Walker. The 

Administrator has already imsuccessfiilly brought certification actions against these two 

pilots. As part of the decision in those actions, the NTSB found that neither Captain 

Surratt nor Captain Walker knew that the spoilers were in maintenance mode. 

Furthermore, the NTSB found it was reasonable that the pilots did not know of the 

spoilers being in maintenance mode. 

Based on lack of knowledge, the Board found that the two pilots could not have 

violated 91.7(a) because they did not know (or reasonably should have known) of the 

spoiler issues until they were in the air, and they did not know that the spoilers were in 

maintenance mode until after the flight was over. 

1, Elements of Collateral Estoppel 

Collateral estoppel prevents a party fi:om relitigating an issue after the party has 

had a full and fair opportunity to present its case in a prior proceeding. It bars relitigation of an issue of fact or law that was actually litigated and resolved in a prior court 

RESPONDENTS MOTION FOR SUMMARY Washington Aviation Group, PC and the 

JUDGMENT Law Offices of Jason A. Dickstein 

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Washington, DC 20007 • Tel: 202-628-6776 
determination, even if the issue recurs in the context of a different claim. E.g. Taylor v. 

Sturgell, 553 U.S. 880, 892 (2008). 

Collateral estoppel has four elements: 

1) the issue decided in the prior proceeding is identical with the issue presented in 

the second; 

2) the party against whom collateral estoppel is asserted was a party in a prior, 

actual, litigation; 

3) the prior adjudication ended in a final judgment on the merits; and, 

4) the party against whom the doctrine is asserted had a fair opportunity to litigate 

the issue (e.g. it was either a party to the litigation or in privity to a party). 

E.g. Swerson v. IBM. 472 F.3d 1072,1078 (9th Cir. 2007); see also Parklane Hosiery 

Co. v. Shore. 439 U.S. 322 (1979), Blonder-Tongue Lab, v. Univ. of 111. Found.. 402 U.S. 

313,323-324(1971). 

2. Analysis of Collateral Estoppel Argument With Respect to 

the 14 C.F.R. § 91.7(a) Claim 

a) The Issue Decided in the Prior Proceeding is Identical 

With the Issue Presented in the Second 

In this case, the 14 C.F.R. § 91.7 allegation by the Administrator is identical to the 

14 C.F.R. § 91.7 issue that was raised in the prior Surratt and Walker case. See Babbitt v. 

Surratt. 2009 NTSB Lexis 106 (September 2,2009), affirmed on appeal EA-5514,2010 

NTSB LEXIS 31 (March 23,2010), motion for reconsideration denied "EK-SSll, 2010 

NTSB LEXIS 56 (June 25,2010). The final decision of the tiial judge, as well as the 

denial of the Administrator's appeal to the Board and the denial of the Administrator's 

motion for reconsideration are attached as appendices to this Motion. 

In both cases, the allegations are based upon a USA 3000 maintenance acceptance 

flight of an Airbus A320 on May 17,2008 from Miami Intemational Airport. Compare 

RESPONDENTS MOTION FOR SUMMARY 

JUDGMENT 

Page 10 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
Babbitt v. Surratt. EA-5514,2010 NTSB LEXIS 31 at "^1 (March 23,2010) (identifying 

the flight) witii In the matter of Brendan Airways. LLC. FAA Docket No. CP09EA0007, 

Complaint at paragraph 11(3) (January 14,2009) (identifying the same flight in the case at 

bar). Both the prior case and this case are dealing with the same flight. 

Both cases alleged that the flight in question was operated in an unairworthy 

fashion in violation of 14 C.F.R. § 91.7(a). Compare Babbitt v. Surratt. EA-5514,2010 

NTSB LEXIS 31 at *1 n.2 (March 23,2010) (explaining tiiat the pilots were charged 

wdth violating section 91.7(a) with respect to the maintenance acceptance flight) with In 

the matter of Brendan Airways. LLC. FAA Docket No. CP09EA0007, Complaint at 

paragraph Ill(e) (January 14,2009) (charging USA 3000 with violating section 91.7(a) 

with respect to the maintenance acceptance flight). 

Case law has held that an allegation of a section 91.7(a) violation (alleging 

unairworthy operation of an aircraft) has a knowledge element (it is not a strict liability 

offense). See Administrator v. Parker. 3 NTSB 2997,2998 (1980); Garvey v. Frost. 

NTSB Order No. EA-4680 at 2 (July 01,1998) (Docket SE-14781); Nunn v. Hinson. 

1994 WL 808076 (November 07,1994) (NTSB Docket 207-EAJA-SE-13563). The 

behavior of pilots charged with airworthiness violations should be measured by what the 

pilots knew or should have known about the aircraft, with this standard requiring the 

pilots to have reacted reasonably and prudently to information of which they are aware. 

Richards v. Olsen. NTSB Order No. EA-3743,1992 WL 371359 at 2 (NTSB November 

23,1992) (Docket SE-10883). 

It has long been recognized that a corporation can only act through its officers and 

agents. E.g. New York C. «fe H. R. R. Co. v. United States. 212 U.S. 481.495 (1909V 

Fidelity & Deposit Co. v. Courtaiev. 186 U.S. 342, 361 (1902). The longstanding general 

rule is that a corporation is charged with the knowledge of the agent acquired by the 

agent in the course of the principal's business. E.g. Curtis. Collins & Holbrook Co. v. 

United States. 262 U.S. 215,222 (1923). 

Thus, in order to prove that USA 3000 has the requisite knowledge in order to be 

found culpable of a violation, the Administrator must prove that USA 3000's agents had 

the requisite knowledge. In other words, the corporation has no knowledge for purposes 

RESPONDENT'S MOTION FOR SUMMARY Washington Aviation Group, PC and the 

JUDGMENT Law Offices of Jason A. Dickstein 

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Washington, DC 20007 • Tel: 202-628-6776 
of this analysis except the knowledge of its own employees, the pilots who operated the 

aircraft. 

Surratt and Walker were the pilots on board the aircraft so their knowledge is the 

knowledge that must be used as the corporate knowledge. Respondent's Interrogatory 

#19 in this matter asked 

"Is it the Administrator's contention that Respondent was aware, before take-off 

and during the flight, that the spoilers were not functioning properly ('aware')? If 

the answer to this question is 'yes,' then please identify each natural person who 

was 'aware' and identify any facts or evidence that supports the Administrator's 

claim that the individual was 'aware.'" 

The Administrator responded to that interrogatory with the following statement: 

"Both of the pilots who operated the aircraft during the flight either were aware 

that the aircraft's ECAM indicated that left and right wing roll spoilers 3 and 5 

were not operational. Furthermore if the pilots actually performed a flight control 

check they would have been aware that the spoilers were not functioning properly 

prior to takeoff The facts are that the pilots admit they saw the ECAM 

indications, the ECAM system was functioning properly, if the ECAM system is 

fimctioning properly the ECAM will show that these spoilers are not operational 

if they are put in the maintenance mode, the flight control check requires the 

pilots to test the spoilers, and if the spoilers servo actuators for the spoilers are in 

the maintenance mode then the spoilers will not function during the flight control 

check." 

It is clear from this response that the Administrator agrees that the pilots' 

knowledge conceming the airworthiness issues in this case is the only knowledge that is 

relevant in this case. 

Because the pilots' knowledge was a critical deciding element of the prior case, 

and is a key element of the case at bar, the knowledge issue decided in the prior 

proceeding is identical with the knowledge issue that is presented in this matter. 

RESPONDENTS MOTION FOR SUMMARY 

JUDGMENT 

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Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
b) The Party Against Whom Collateral Estoppel is 

Asserted Was a Party in the Prior Litigation 

The Administrator of the Federal Aviation Administration, agamst whom this 

collateral estoppel is asserted, was the Complainant in the Surratt and Walker case. The 

matter was actually litigated in a two-day trial. Babbitt v. Surratt. EA-5514,2010 NTSB 

LEXIS 31 at *1 (March 23,2010). 

c) The Prior Adjudication Ended in a Final Judgment on 

the Merits 

Babbitt v. Surratt and Walker ended in a final judgment on the merits. See 

Babbitt v. Surratt. 2009 NTSB Lexis 106 (September 2,2009). The Board denied both 

an appeal and a motion for reconsideration of the appeal. See Babbitt v. Surratt, EA5514, 2010 NTSB LEXIS 31 (March 23, 2010) (affirming on appeal), and Babbitt v. 

Suiratt. EA-5527,2010 NTSB LEXIS 56 (June 25,2010) (motion for reconsideration 

denied). 

The final decision in the prior case was that Surratt and Walker - the two pilots 

flying the aircraft - did not have the requisite knowledge to support the contention that 

either had violated 14 C.F.R. § 91.7(a) by flying an imairworthy aircraft; the Board found 

that USA 3000's agents, the pilots, did not have the requisite level of knowledge to 

violate section 91.7(a). Babbitt v. Surratt. EA-5527,2010 NTSB LEXIS 56 at * 10 (June 

25,2010) (explaining that the pilots did not know that the aircraft was unairworthy, and 

they therefore did not have the requisite knowledge in order to satisfy the knowledge 

element of a section 91.7(a) allegation). 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

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Washington, DC 20007 'Tel: 202-628-6776 
d) The Administrator (the Party Against Whom the 

Doctrine is Asserted) Had a Fair Opportunity to Litigate the 

Issue Because the Administrator was a Party to the Prior 

Litigation 

The Administrator of the Federal Aviation Administration, against whom this 

collateral estoppel is asserted, vigorously argued the knowledge issue in the prior case. 

In fact, the Administrator appealed on that issue, and moved for reconsideration on the 

knowledge issue. See, e^ . Babbitt v. Surratt. EA-5527,2010 NTSB LEXIS 56 at *9 

(June 25,2010) (affirming that the pilots "did not know, nor should have known, that the 

aircraft was n an unairworthy condition"). Because the central issue upon which 

collateral estoppel is founded has been fully litigated and appealed, it would not be an 

injustice to rely n the prior ruling conceming this issue. 

In summary, the doctrine of collateral estoppel applies in this case because in a 

prior adjudication, the NTSB found that the pilots did not have the requisite knowledge to 

sustain an allegation of a 14 C.F.R. § 91.7(a) violation conceming the same flight that is 

at issue in this case. The Administrator's answer to interrogatory 19 makes it clear that 

there are no other agents through whom the USA 3000 could have acted, that would have 

had relevant knowledge related to the airworthiness of the aircraft. Consequently, USA 

3000 could not possibly have violated section 91.7(a) because none of its agents have the 

requisite knowledge to sustain such an allegation of violation. 

C. The 91.13(a) Claim Must Be Dismissed for Statute of 

Limitations Reasons (Motion to Dismiss) 

On October 19,2010, the Administrator announced that he was amending the 

Complaint to include a 91.13(a) claim. This should be treated both as a Motion for 

Summary Judgment/Decision and also as a Motion to Dismiss that is being filed in lieu of 

an Answer to the October 19 amendment. 

The Order of Chief Administrative Law Judge, served in this case on February 19, 

2009, required all amendments to be filed by April 20,2009. This amendment failed to 

RESPONDENTS MOTION FOR SUMMARY 

JUDGMENT 

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meet that deadline.' Notice in the form of an answer would not be due until or unless this 

Motion to Dismiss was granted. Therefore this Motion to Dismiss the 91.13(a) claims 

takes the place of the Answer to the 91.13(a) claim. 

The imderlying allegations of this case happened on or before May 17,2008. E.g. 

Complaint at 13. USA 3000 was not apprised that a section 91.13(a) violation would be 

claimed as a part of this case until the October 19,2010 Amendment. Such a claim was 

not part of any of the earlier pre-Complaint notices. Civil penalty claims must be 

initiated within the two-year stattite of limitations. 49 U.S.C.§ 46301(d)(7)(C). A civil 

penalty action is initiated by sending a notice of proposed civil penalty to the person 

charged with a violation 14 C.F.R. § 13.16(f). Notice of the 91.13(a) claim was not made 

until more than two years after the alleged event had occurred. The 91.13(a) claim must 

therefore be dismissed as untimely. 

The Administrator claims "inadvertent error" in failing to include the 91.13(a) 

allegation of violation. However, the Complaint was first served January 6,2009, and it 

was a reproduction of the Notice of Proposed Civil Penalty that was first served August 

21, 2008, so the Administrator's so-called error has been circulating for over two years. 

If this really was an inadvertent error, then it should have been corrected years ago. 

Furthermore, there is NO claim that the reason for late-filing the claim was because the 

Administrator was unable to file it earlier. Because there is no reasonable basis for the 

delay, and because the Amendment violates the Court's Order of February 19,2009, the 

Court should not exercise any discretion in accepting the late-filed addition to the 

Complaint. The 91.13(a) claim must be dismissed as untimely. 

' The Respondent also late-filed an amendment; but the Respondent had good cause. The Respondent filed 

notice of the defense of collateral estoppel on August 30th, 2010, when that defense became ripe. This was 

after the 2009 deadline imposed by the Court's Order; however, the collateral estoppel argument did not 

become ripe until August 24, 2010, when the time for appealing the underlying decision of the Board had 

passed (one of the elements of collateral estoppel is finality of the judgment upon which collateral estoppel 

is based). 

The Respondent has not filed notice of the defense of collateral estoppel with respect to this cause of 

action under § 91.13(a), because the cause of action was not asserted until October 19,2010, after notice of 

that defense had been filed. This document serves as notice of the assertion of such a defense in response 

to the § 91.13(a) claim. 

RESPONDENTS MOTION FOR SUMMARY Washington Aviation Group, PC and the 

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D. The 91.13(a ) Claim Must Also Be Dismissed Due to 

Collateral Estoppel (Motion for Summary Judgment) 

As with the § 91.7 claims discussed above, the § 91.13(a) claim was fully litigated 

in the prior Surratt and Walker case. See Babbitt v. Surratt. 2009 NTSB Lexis 106 

(September 2,2009), affirmed on appeal EA-5514,2010 NTSB LEXIS 31 (March 23, 

2010), motion for reconsideration denied EA-5527,2010 NTSB LEXIS 56 (June 25, 

2010). 

The collateral estoppel argument that applies to the § 91.7 claim is incorporated 

by reference, and an abbreviated simimary of the argument as it applies to the § 91.13(a) 

claim follows. 

1. The Issue Decided in the Prior Proceeding is Identical 

With the Issue Presented in the Second 

In this case, the 14 C.F.R. § 91.13(a) allegation by the Administrator is identical 

to the 14 C.F.R. § 91.13(a) issue that was raised in the prior Surratt and Walker case. 

In both cases, the allegations are based upon the same USA 3000 maintenance 

acceptance flight of an Airbus A320 on May 17,2008 fi-om Miami Intemational Airport. 

Both allegations claim that the flight in question was flown in a careless or reckless 

manner. Compare Babbitt v. Surratt. EA-5514, 2010 NTSB LEXIS 31 at *1 n.2 (March 

23,2010) (explaining that the pilots were charged with violating section 91.13(a) with 

respect to the maintenance acceptance flight) v^dth In the matter of Brendan Airways. 

LLC. FAA Docket No. CP09EA0007, Amended Complaint at paragraph Ill(d) (January 

14,2009) (charging USA 3000 with violating section 91.13(a) with respect to the same 

maintenance acceptance flight). 

It has long been recognized that a corporation can only act through its officers and 

agents. E.g. New York C. & H. R. R. Co. v. United States. 212 U.S. 481,495 (1909); 

Fidelity & Deposit Co. v. Courtney. 186 U.S. 342, 361 (1902). The longstanding general 

rule is that a corporation is charged with the knowledge of the agent acquired by the 

agent in the course of the principal's business. E.g. Curtis. Collins & Holbrook Co. v. 

United States. 262 U.S. 215,222 (1923). 

RESPONDENT'S MOTION FOR SUMMARY Washington Aviation Group, PC and the 

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Thus, in order to prove that USA 3000 has the requisite knowledge in order to be 

found culpable of a reckless or careless flight violation, the Administrator must prove that 

USA 3000's agents had the requisite knowledge. In other words, the corporation has no 

knowledge for piuposes of this analysis except the knowledge of its own employees, the 

pilots who operated the aircraft. 

Surratt and Walker were the pilots on board the aircraft so their alleged reckless 

or careless behavior would be the behavior that must be analyzed as the corporate 

behavior. 

In Paragraph 20 of the Complaint, the Administrator claimed "During the flight, 

the aircraft was operated in a careless or reckless manner so as to endanger the life or 

property of another." Amended Complaint at ^ 20 (October 19, 2010). In order to better 

gauge the scope and reason for the factual allegation, Respondent's Interrogatory #7 in 

this matter asked the Administrator to "Please identify all of the facts that you contend 

support Allegation 20 of section II of the Complaint." 

The Administrator responded to that interrogatory with the statement, "See the 

above and the Complaint." Neither the complaint nor the other answers to the 

interrogatories identify any person who acted in a careless or reckless manner. Only the 

pilots actions are described "above" the answer to interrogatory 7, so there is no other 

person whose behavior could reasonably be within the scope of what the Administrator 

claims to have been reckless or careless in the 91.13(a) claim. 

Because the pilots' behavior was a critical deciding element of the prior case, and 

is a key element of the case at bar, the reckless/careless behavior issue decided in the 

prior proceeding is identical with the reckless/careless behavior issue that is presented in 

this matter. 

2. The Party Against Whom Collateral Estoppel is Asserted 

Was a Party in the Prior Litigation 

The Administrator of the Federal Aviation Administration, against whom this 

collateral estoppel is asserted, was the Complainant in the Surratt and Walker case. The 

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matter was actually litigated in a two-day trial. Babbitt v. Surratt. EA-5514, 2010 NTSB 

LEXIS 31 at •*! (March 23,2010). 

3. The Prior Adjudication Ended in a Final Judgment on the 

Merits 

Babbitt v. Surratt and Walker ended in a final judgment on the merits. See 

Babbitt v. Surratt. 2009 NTSB Lexis 106 (September 2,2009). The Board denied both 

an appeal and a motion for reconsideration of the appeal. See Babbitt v. Surratt. EA5514, 2010 NTSB LEXIS 31 (March 23,2010) (affirming on appeal), and Babbitt v. 

Surratt. EA-5527, 2010 NTSB LEXIS 56 (June 25,2010) (motion for reconsideration 

denied). 

The final decision in the prior case was that Surratt and Walker - the two pilots 

flying the aircraft - did not act in a reckless or careless manner and therefore did not 

violate 14 C.F.R. § 91.13(a). Babbitt v. Surratt. SE-18562, 2009 NTSB LEXIS 106 at 

"•14, * 17-18 (September 2,2009) (specifically finding that each pilot did not operate the 

aircraft in a careless manner so as to endanger the life or property of another); see also 

Babbitt v. Surratt. EA-5514, 2010 NTSB LEXIS 31 (March 23,2010) (denying the 

FAA's appeal of the § 91.13(a) charge), and Babbitt v. Surratt. EA-5527,2010 NTSB 

LEXIS 56 (June 25,2010) (denying the FAA's motion for reconsideration of the § 

91.13(a) charge). 

4. The Administrator (tlie Party Against Whom the Doctrine 

is Asserted) Had a Fair Opportunity to Litigate the Issue Because 

the Administrator was a Party to the Prior Litigation 

The Administrator of the Federal Aviation Administration, against whom this 

collateral estoppel is asserted, vigorously argued the knowledge issue in the prior case. 

In fact, the Administrator appealed on that issue, and moved for reconsideration on the 

knowledge issue. See, Babbitt v. Surratt. EA-5527,2010 NTSB LEXIS 56 (June 25, 

2010). Because the central issue upon which collateral estoppel is foimded has been fully 

RESPONDENTS MOTION FOR SUMMARY Washington Aviation Group, PC and the 

JUDGMENT Law Offices of Jason A. Dickstein 

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litigated and appealed, it would not be an injustice to rely n the prior ruling conceming 

this issue. 

In summary, the doctrine of collateral estoppel applies in this case because in a 

prior adjudication, the NTSB found that the pilots on the flight did not act recklessly or 

carelessly in violation of 14 CFR 91.13(a). The Administrator's answer to interrogatory 7 

makes it clear that there are no other agents through whom the USA 3000 could have 

acted, that the Administrator might claim acted recklessly or carelessly with respect to the 

case at bar. Consequently, USA 3000 could not possibly have violated section 91.13(a) 

because none of its agents acted in violation of that regulation. 

E. Conclusion of Collateral Estoppel Arguments 

In light of the fact that each of the elements of collateral estoppel have been met 

with respect to the above-described claims, the court should be bound by the prior facttial 

fmdings of the NTSB with respect to this matter. 

• The Administrative Law Judge should find that the knowledge element of the 

airworthiness claim, which was fully litigated in the Surratt and Walker case, has 

been shown to be missing and that therefore the airworthiness claim under 91.7(a) 

must be dismissed; 

• The Administrative Law Judge should find that The Aircraft was not flovm 

recklessly or carelessly, based on the full litigation of that issue in the Surratt and 

Walker case, and that therefore the reckless or careless flight claim under 91.13(a) 

must be dismissed; and 

• The Administrative Law Judge should hold that therefore the claims in this case 

brought imder sections 91.7(a) and 91.13(a) should be dismissed. 

F. The 14 C.F.R. §§ 43.13(a) and 43.13(b) Claims Must Be 

Dismissed 

1. Legal Standards for the Part 43 Claims 

The Administrator has alleged a violation of 14 C.F.R. § 43.13(a). That section 

states, in relevant part: 

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

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

and practices prescribed in the current manufacturer's maintenance manual or 

Instructions for Continued Airworthiness prepared by its manufacturer, or other 

methods, techniques, and practices acceptable to the Administrator, except as 

noted in Sec. 43.16. 

In order to prove a violation of 14 C.F.R. § 43.13(a), the Administrator must 

allege (1) that the Respondent has used certain methods, techniques, or practices, and (2) 

that the Respondent's methods, techniques, or practices failed to meet a standard of the 

Administrator or were otherwise not acceptable to the Administrator. 

The Administrator has also alleged a violation of 14 C.F.R. § 43.13(b). That 

section states: 

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

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

condition of the aircraft, airframe, aircraft engine, propeller, or appliance 

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

regard to aerodynamic function, structural strength, resistance to vibration and 

deterioration, and other qualities affecting airworthiness). 

As with the 43.13(a) claim, an integral element to a 43.13(b) claim is the 

allegation that the Respondent performed the maintenance. Section 43.13(b) only applies 

its performance standard to "each person maintaining or altering or performing 

preventative maintenance," so it must be necessary to identify a maintenance in order to 

fmd a violation. 

2. The Administrator Bears the Burden to Demonstrate 

Significant Probative Evidence in Support of Its Position 

Except with respect to affirmative defenses, the Administrator bears the ultimate 

burden of proof in civil penalty cases. 14 C.F.R. § 13.224(a). As discussed in section 

A.2 of this brief, supra, the Administrator has an obligation to present significant 

probative evidence in favor of its position. Despite this burden, the Administrator has 

failed to be able to even identify a maintenance operation that was incorrectly performed. 

RESPONDENT'S MOTION FOR SUMMARY 

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Moreover, the alleged evidence of improper maintenance is limited only to the 

fact that two spoilers were placed in the maintenance mode, and the Administrator has 

admitted that he has no idea who placed the spoilers in the mamtenance mode. 

The Administrator has admitted that he cannot point to any maintenance operation 

that was improperly performed, and he cannot prove that the spoilers were placed in the 

maintenance mode during any maintenance operation (as opposed to some sort of 

vandalism, or unrelated third party action, for example). 

3. The Administrator Does Not Say What Maintenance Was 

Performed Inadequately 

In the Complaint, the Administrator has completely failed to allege that USA 

3000 performed the maintenance in question. Instead of alleging that USA 3000 

performed maintenance, the Administrator states that maintenance was performed 

(Complaint at 4), and then offers the conclusion that "by virtue of the foregoing, [USA 

3000] performed maintenance." Complaint at ^ 7. The reason for this incomplete segue 

is simple. USA 3000 did not perfomi any inadequate maintenance in this case. 

In interrogatory #1, USA 3000 asked the Administrator to identify the improperly 

performed maintenance activity that is at the root of the Part 43 allegations: 

Interrogatory #1: Allegation 4 of section II of the Complaint contends that the 

spoiler servo actuators were placed m the maintenance mode during maintenance. 

On what date and during what maintenance operation were the spoiler servo 

actuators placed in the maintenance mode? 

The Administrator answered by admitting that 

"the Complainant does not know the exact date of the maintenance ... the 

Complainant does not know during what maintenance operation the spoiler servo 

actuators were placed in the maintenance mode, however it appears that the 

maintenance was performed by AAR." Complainant's First Response to 

Respondent's First Set of Interrogatories, requests for Production of Documents, 

and Requests for Admissions, Response to Interrogatory #1. 

It is obvious from this that the sole 'evidence' supporting the Administrator's 

allegation that some maintenance was performed improperly is the fact that the spoilers 

RESPONDENTS MOTION FOR SUMMARY Washington Aviation Group, PC and the 

JUDGMENT Law Offices of Jason A. Dickstein 

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were later fovmd in the maintenance mode. But the spoilers could have been placed in 

that mode by non-maintenance personnel at the airport through a non-maintenance 

activity. The spoilers could have been placed in that mode during maintenance 

performed under the orders of ILFC (the aircraft owner who was taking possession of the 

aircraft after the maintenance was complete) and/or State Transport Russia (the next 

lessee), because ILFC had ordered work to be performed on the aircraft. The spoilers 

could have been placed in that mode by vandals. The conclusion that USA 3000 

maintenance must have been improperly performed merely because the spoiler servos 

were in the maintenance mode assumes that it was only during a USA 3000 maintenance 

activity that this "maintenance mode" switch may be activated; and this conclusion is 

simply not reasonable in light of the other possibilities. The Administrator's conclusion 

is actually unreasonable in light of the fact that the FAA has diligently investigated this 

case and was unable to identify any USA 3000 maintenance activity during which the 

spoilers could have been left in the maintenance mode. See supra at pp. 4-6 of this brief. 

The Administrator fails to say that the maintenance performed in this case was 

performed under the direction of USA 3000, because the task that was performed (and 

that led to the spoiler issue) was not performed under USA 3000's direction. 

4. The Administrator Does Not Knovirs Who Put the Spoilers 

In Maintenance Mode and Does Not Know How or When the 

Spoilers Were Put in Maintenance Mode 

No one knows who put the spoilers in maintenance mode. The FAA does not 

contend that USA 3000 performed improper maintenance themselves. The FAA 

contends that USA 3000 is responsible for AAR's actions, because AAR is USA 3000's 

maintenance contractor. The problem with this contention is that there is no evidence 

that AAR did anything wrong! 

In discovery, USA 3000 requested copies of relevant documents that the 

Administrator intends to put into evidence. The FAA's Program Tracking and Reporting 

Subsystem (PTRS) Data Sheet, provided in response to this discovery request, admit that 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

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the FAA's own investigators could not determine that any AAR employee put the spoilers 

in maintenance mode: 

"05-20-2008 TO 06-16-2008 - CONDUCTED INVESTIGATION REGARDING 

THE ALLEGED IMPROPER MAINTENANCE. COULD NOT PROVE THAT 

ANY AAR EMPLOYEE PERFORMED THE IMPROPER POSITIONING OF 

THE LEFT WING SPOILERS 3 AND 5 TO THE MAINTENANCE MODE." 

FAA PTRS record from Inspector LXC for EIR 2008SO190220 (all capitals in 

original) (Foxmd in Appendix G to this Motion). 

The PTRS record goes on to say: 

"DUE TO THE LACK OF DOCUMENTATION REGARDING WHEN, WHO, 

WHY AND HOW WERE THE SPOILERS POSITIONED IN THE 

MAINTENANCE MODE, IT IS NOT POSSIBLE FOR THIS INSPECTOR TO 

BLAME ANYONE FOR THE IMPROPER POSITIONING OF THE 

SPOILERS. " FAA PTRS record from InspectoT-LXC for EIR 2008SO190220 

(all capitals in original) (Found in Appendix G to this Motion). 

A second PTRS record conceming the investigation was also provided in 

discovery. That document explains that the inspector interviewed management and 

employees, and checked work cards, and could find no circumstances in which noncompliant maintenance occurred. FAA PTRS record from Inspector LAB for EIR 

2008SO190220 (Found in Appendix G to this Motion). The inspector specified that the 

"investigation did not produce evidence of any wrongdoing on the part of AAR." Id. 

In addition, USA 3000's interrogatory 10 asked 

Interrogatory 10: Is it the Administrator's contention that the aircraft's left wing 

roll spoilers three and five were placed in the maintenance mode during 

maintenance performed by US A3 000? 

In response to interrogatory 10, the Administrator replied: 

Pursuant to 14 C.F.R. § 121.363 it is the Administrator's contention that Brendan 

Airways is responsible for all maintenance performed on the aircraft. The 

Administrator does not know what individuals placed the left wing roll 

spoilers three and five in the maintenance mode prior to flight, however it is 

the Administrator's contention that Brendan Airways is responsible for this 

maintenance, [emphasis added]. 

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Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
The Administrator's documents shows that there is no evidence that AAR 

performed any maintenance improperly. The Administrator admits that he simply does 

not know who placed the spoilers in the inoperative mode. There is absolutely no 

evidence that anyone under USA 3000's control put those spoilers in maintenance mode. 

USA 3000's interrogatories 1-13 all ask the Administrator to identify the 

maintenance activity that was improperly performed. The answers make it clear that the 

Administrator cannot point to any maintenance that was improperly performed. 

Complainant's First Response to Respondent's First Set of Interrogatories, requests for 

Production of Docvmients, and Requests for Admissions. Responses to Interrogatories #1-

13. In fact, the Administrator specifically admits that "[T]he Complainant does not know 

during what maintenance operation the spoiler servo actuators were placed in the 

maintenance mode." Complainant's First Response to Respondent's First Set of 

Interrogatories, requests for Production of Documents, and Requests for Admissions. 

Response to Interrogatory #1. 

5. Other Possible Causes Make it Inappropriate to Assume 

Causation 

If the Administrator cannot identify the causation of the alleged offense, then the 

Administrator is not free to ascribe culpability to anyone that is close. What the 

Administrator is trying to do here is akin to the doctrine of res ipsa loquitor, but res ipsa 

loquitor "does not apply when there is an intermediary cause which could have produced 

the injury." Rg, Sams v. Wal-Mart Stores. 228 Ga. App. 314, 316 (Ga. Ct. App. 1997) 

(refusing to permit a plaintiff to use res ipsa loquitur to fill the evidentiary gap, where 

there was only proof of the occurrence of an injury, v^thout more, and holding that an 

injury alone "is insufficient to establish liability"). In this case, however, ILFC was 

having work performed on its aircraft (N265 AV) under its direction, and this is just one 

of several possible intermediate actors that could have been the responsible causal 

sources of the switch from operational mode to maintenance mode. See Joseph Miller 

Declaration at ^^ 33-42 (explaining why it is possible that the spoilers were repositioned 

by ILFC's agents during ILFC painting). 

RESPONDENT'S MOTION FOR SUMMARY Washington Aviation Group, PC and the 

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hi addition, res ipsa loquitor requires proof of negligence in order to permit the 

assumption of causation, and there is no allegation of negligence on the part of USA 

3000. 

The evidence makes it clear that the Administrator does not know who placed the 

spoilers in maintenance mode. USA 3000 also does not know who placed the spoilers in 

maintenance mode. But investigations by AAR, USA 3000 and the FAA all confirm that 

there is no evidence that the spoilers were placed in maintenance mode during a 

maintenance activity performed by AAR. And the allegations of the complaint and of the 

discovery responses do not suggest that any other USA 3000 agent could have done this. 

If a principle is accused of the agent's malfeasance, but the accuser cannot prove 

the agent's malfeasance, then the principle cannot be culpable for non-existent allegations 

of malfeasance. Evidentiary law simply does not permit the Court to assume that a 

maintenance activity was improperly performed in the absence of any evidence of 

improper performance. 

6. USA 3000 Did Not Perform the Maintenance that was 

Considered Inadequate 

There is no allegation in this case that USA 3000 performed maintenance that 

lead to the spoilers being placed in maintenance mode. Instead, the allegation (as stated 

in the Adminisfrator's answer to USA 3000's interrogatory two) seems to be that AAR 

performed maintenance, and that it was improperly performed. But there is no evidence 

of improper maintenance by AAR, and the FAA's own PTRS records and letters to AAR 

suggest that AAR committed no violation. Thus, it cannot be true that USA 3000 is 

liable for a violation committed by AAR as its maintenance contractor. 

The 14 C.F.R. § 43.13 claim must be dismissed, because the government cannot 

identify a maintenance activity that was improperly performed, and it cannot draw a 

connection between the spoilers being left in the maintenance mode and any maintenance 

activity performed by USA 300 or by any USA 3000 agent. 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

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G. Statement Concerning Part 121 Claims 

Shortly before this Motion was filed, we received the Administrator's withdrawal 

of the Part 121 claims. This has mooted our (already-drafted) argvmients conceming the 

Part 121 claims. We are mindfiil of the fact that the Court's February 19, 2009 Order 

forbade late amendments, and for this reason, the mooted Part 121 claims have been 

included as an Appendix to this Motion. Please consider them to be asserted if and only 

if the Court chooses to reject the Administrator's withdrawal of the Part 121 claims. 

III. Conclusion 

The Part 91 claims found in the Amended Complaint have both been fully 

litigated against the pilots (who are the only relevant agents of USA 3000), and the NTSB 

found that (1) the pilots did know about the spoiler malfunction before the aircraft took 

off, (2) the pilots acted reasonably in continuing the maintenance acceptance flight after 

obtaining knowledge of the spoiler malfunction, and (3) the pilots did not act recklessly 

or carelessly with respect to the flight. For purposes of the case against USA 3000, the 

pilots were the only relevant agents of USA 3000 with respect to the Part 91 allegations 

against USA 3000. Under the doctrine of collateral estoppel, the Part 91 claims have 

aheady been decided against the Administrator, and therefore the Adminisfrator is 

estopped from raising the same Part 91 issues against USA 3000. 

The Part 43 claims found in the Amended Complaint both assume that USA 3000 

acted through AAR in violating the maintenance standards. But the Administrator carmot 

point to any maintenance activity that was improperly performed, and the Administrator 

has no evidence to support the contention that the spoilers were positions to the 

maintenance mode during a maintenance operation performed by USA 3000 or under 

USA 3000's direction. The two Part 43 allegations against USA 3000 should also be 

dismissed. 

For the reasons stated above, the four claims found in the Amended Complaint 

should be dismissed. 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

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Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
RESPECTFULLY SUBMITTED this 22nd day of October, 2010. 

WASHINGTON AVL\TION GROUP, PC AND THE 

LAW OFFICES OF JASON A DICKSTEIN 

By h 

Jason Dickstein 

shington Aviation Group, PC and the 

iw Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 

Tel: (202) 628-6776 

Attorney for Respondent Brendan Airways, LLC d/b/a US A3 000 Airlines 

RESPONDENTS MOTION FOR SUMMARY 

JUDGMENT 

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Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
BEFORE THE US DEPARTMENT OF TRANSPORTATION 

The Honorable Chief Administrative Law Judge Ronnie A. Yoder 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d^/a US A3 000 Airiines 

Respondent 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that she caused the attached 

• MOTION FOR SUMMARY JUDGMENT or DECISION and MOTION TO 

DISMISS 91.13(a) AMENDMENT TO COMPLAINT 

to be filed at the addresses listed below by two-day FedEx service, on the date indicated below. 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

And to be served on the persons at the addresses listed below by the same method as the filing 

method, on the date indicated below. 

David M. Cohen, Attorney 

Federal Aviation Administration 

Office of the Regional Coimsel, EAL-7 

1 Aviation Plaza 

Jamaica, NY 11434 

Tel: (718) 553-3270 

Fax:(718)995-5699 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room E12-320 

US Department of Transportation 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Tel: (202) 366-2142 

Fax: (202) 366-7536 

Katt Stanley 

October 22.2010 

Date 

CERTIFICATE OF SERVICE 

Page 28 

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APPENDIX A: Potentially Moot Part 121 Arguments 

Shortly before this Motion was filed, we received the Administrator's withdrawal of the 

Part 121 claims. This appears to have mooted our (already-drafted) arguments conceming the 

Part 121 claims. 

We are mindful of the fact that the Court's February 19,2009 Order forbade late 

amendments, and for this reason, it is possible that the Court could potentially forbid the 

Administrator from withdrawing the Part 121 claims. 

The potentially-mooted Part 121 claims have been included for use only if they are not 

moot. Please consider them to be asserted if and only if the Court chooses to reject the 

Administrator's withdrawal of the Part 121 claims. 

A. The 14 C.F.R. §§ 121.153(a)(2) and 121.628(a)(5) Claims Must Be 

Dismissed Because the Flight Was Outside the Scope of Part 121 

The flight in question was a maintenance acceptance flight. Babbitt v. Surratt. EA-5514, 

2010 NTSB LEXIS 31 at *1 n.2 (March 23, 2010). A maintenance acceptance flight is an 

operational test of the aircraft following heavy maintenance. 14 C.F.R. § 91.407(b). An aircraft 

that has undergone heavy maintenance caimot be used for carriage until after that operational test 

has been completed. Id. (there is an exception to this requirement in subsection (c) where grovind 

tests and/or inspection can be used to verify airworthiness). 

Part 121 of the FAA's regulations is limited in its applicability. It applies to domestic, 

flag, and supplemental operations. 14 C.F.R. § 121.1(a). The definitions of these terms found in 

Part 119 are applicable to part 121. 14 C.F.R. § 119.3 (explaining that the definitions pertain to 

all of Subchapter G). 

APPENDDC A (Part 121 Claims) 

Page 29 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
A maintenance acceptance flight is not a domestic operation. Domestic operation is 

defined in 14 C.F.R. § 119.3 to include only scheduled operations.^ A "scheduled operation" is 

limited to passenger-carrying operations. 14 C.F.R. § 119.3. The operation in question in this 

case was not a passenger-carrying operation so it was not a scheduled operation (such operation 

is precluded before completing the operational check described in 91.407(b)). Thus it was not a 

domestic operation as that term is used in the Part 121 regulations. 

A maintenance acceptance flight is not a flag operation. Flag operation is defined in 14 

C.F.R. § 119.3 to include only scheduled operations.^ A "scheduled operation" is limited to 

passenger-carrying operations. 14 C.F.R. § 119.3. The operation in question in this case was not 

a passenger-carrying operation so it was not a scheduled operation (such operation is precluded 

^ Domestic operation means any scheduled operation conducted by any person operating any airplane described in 

paragraph (1) of this defmition at locations described in paragraph (2) of this defmition: 

(1) Airplanes: 

(i) Turbojet-powered airplanes; 

(ii) Airplanes having a passenger-seat configuration of more than 9 passenger seats, excluding 

each crewmember seat; or 

(iii) Airplanes having a payload capacity of more than 7,500 pounds. 

(2) Locations: 

(i) Between any points within the 48 contiguous States of the United States or the District of 

Columbia; or 

(ii) Operations solely within the 48 contiguous States of the United States or the District of 

Columbia; or 

(iii) Operations entirely within any State, territory, or possession of the United States; or 

(iv) When specifically authorized by the Administrator, operations between any point within the 

48 contiguous States of the United States or the District of Columbia and any specifically 

authorized point located outside the 48 contiguous States of the United States or the District of 

Columbia. 

14 C.F.R. §119.3. 

^ Flag operation means any scheduled operation conducted by any person operating any airplane described in 

paragraph (1) of this definition at the locations described in paragraph (2) of this definition: 

(1) Airplanes: 

(i) Turbojet-powered airplanes; 

(ii) Airplanes having a passenger-seat configuration of more than 9 passenger seats, excluding 

each crewmember seat; or 

(iii) Airplanes having a payload capacity of more than 7,500 pounds. 

(2) Locations: 

(i) Between any point within the State of Alaska or the State of Hawaii or any territory or 

possession of the United States and any point outside the State of Alaska or tiie State of Hawaii or 

any territory or possession of the United States, respectively; or 

(ii) Between any point within the 48 contiguous States of the United States or the District of 

Columbia and any point outside the 48 contiguous States of the United States and the District of 

Columbia. 

(iii) Between any point outside the U.S. and another point outside the U.S. 

14 C.F.R. §119.3. 

APPENDIX A (Part 121 Claims) Washington Aviation Group, PC and the 

Page 30 Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
before completing the operational check described in 91.407(b)). Thus it was not a flag 

operation as that term is used in the Part 121 regulations. 

A maintenance acceptance flight is not a supplemental operation. Supplemental 

operation is defined in 14 C.F.R. § 119.3 to include only conmion carriage operation for 

compensation or hire.'* Operation of the aircraft in common carriage operation for compensation 

or hire is specifically precluded before the completion of the maintenance acceptance flight. 14 

C.F.R. § 91.407(b). Thus it was not a supplemental operation as that term is used in the Part 121 

regulations. 

If the Administrator were to apply 14 C.F.R. § 121.153(a)(2) to maintenance acceptance 

flights, it would create a catch-22 situation, in which the purpose of the flight is to confirm 

airworthiness, but by finding a condition that needed to be remedied during this operational test, 

the air carrier would be identifying a violation of 14 C.F.R. § 121.153(a)(2). This would make 

every effort to comply witii 14C.F.R. § 91.407(b) a potential violation of § 121.153(a)(2). 

Luckily, the Administrator does not need to read its regulations in such a conflicting 

maimer. Because a maintenance acceptance flight is not a domestic, flag, or supplemental 

operation, it is not covered v^thin the scope of Part 121. Rather, it is considered to be an 

operation within the scope of the Part 91 operating rules. 

* Supplemental operation means any common carriage operation for compensation or hire conducted with any 

airplane described in paragraph (1) of this defmition that is a type of operation described in paragraph (2) of this 

definition: 

(1) Airplanes: 

(i) Airplanes having a passenger-seat configuration of more than 30 seats, excluding each 

crewmember seat; 

(ii) Airplanes having a payload capacity of more than 7,500 pounds; or 

(iii) Each propeller-powered airplane having a passenger-seat configuration of more than 9 seats 

and less than 31 seats, excluding each crewmember seat, that is also used in domestic or flag 

operations and that is so listed in the operations specifications as required by §119.49(aX4) for 

those operations; or 

(iv) Each turbojet powered airplane having a passenger seat configuration of 1 or more and less 

than 31 seats, excluding each crewmember seat, that is also used in domestic or flag operations 

and that is so listed in the operations specifications as required by §119.49(a)(4) for those 

operations. 

(2) Types of operation: 

(i) Operations for which the departure time, departure location, and arrival location are specifically 

negotiated with the customer or the customer's representative; 

(ii) All-cargo operations; or 

(iii) Passenger-carrying public charter operations conducted under part 380 of this title. 

14 C.F.R. §119.3. 

APPENDIX A (Part 121 Claims) Washington Aviation Group, PC and the 

Page 31 Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
Because the flight in this case was a Part 91 operation, and not an operation covered 

within the scope of Part 121, the allegations of violation of regulations under Part 121 should be 

dismissed. 

B. Application of th e Collateral Estoppel Argument to the 14 C.F.R-

§ 121.153(a)(2) Claim 

The FAA has alleged tiiat USA 3000 operated The Aircraft in violation of 14 C.F.R. § 

121.153(a)(2). That section states, in relevant part: 

(a) Except as provided in paragraph (c) of this section, no certificate holder may operate 

an aircraft unless that aircraft— 

(2) Is in an airworthy condition and meets the applicable airworthiness requirements of 

this chapter, including those relating to identification and equipment. 

As with the 91.7(a) airworthiness claim, an airworthiness claim under § 121.153 includes 

knowledge as an element. FAA v. Empire Airlines, Inc., FAA Docket No. CP94NM0064, 1995 

FAA LEXIS 399 at *25-*26 (March 3, 1995) (explaining that the remedial purpose of a civil 

penalty would not be promoted by assessing penalties in the absence of knowledge). If the pilots 

had known of the issues before take-off, then under traditional agency theories the air carrier 

may have been liable, but the pilots in this case did not have the requisite knowledge to have 

formed a foundation for an airworthiness violation. The argument for dismissing the 

121.153(a)(2) claim is therefore the same. 

It is also important to note that instead of meeting its burden, the Administrator generally 

alleged that the legal conclusion that the aircraft was unairworthy, without offering factual 

allegations or objective standards to support this claim. 

Therefore, the 14 C.F.R. § 121.153(a)(2) allegation should be dismissed because prior 

case found that the knowledge element of an airworthiness violation does not exist in our fact 

pattem. 

APPENDIX A (Part 121 Claims) 

Page 32 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION 

The Honorable Chief Administrative Law Judge Ronnie A. Yoder 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines 

Respondent 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

DECLARATION OF JOSEPH MILLER 

I, JOSPEPH MILLER, under penalty of perjury, declare as follows: 

1. I am an employee of Brendan Airways, which does business under the name USA 

3000 Airlines. 

2. I serve as the Director of Maintenance for USA 3000. 

3. Prior to April 2008, USA 3000 had been operating an A320 aircraft bearing US 

registry N265AV ("the Aircraft" or "N265AV"). 

4. The Aircraft was owned by Intemational Lease Finance Corporation ("ILFC"). 

5. The Aircraft was leased by ILFC to USA 3000. 

6. During the Spring of 2008, the lease on the Aircraft was coming to an end, so 

USA 3000 hired AAR Corp to perform lease-end heavy maintenance on the aircraft in order to 

be able to return it to the lessor (ILFC) at the end of the lease. 

7. The maintenance on N265AV at AAR took place during April 2008 and May 

2008. 

8. The maintenance performed by AAR for USA 3000 was performed according to 

USA 3000's written instructions for completing the work. 

9. There is no evidence that AAR diverged from the work instructions provided by 

USA 3000, in completing the USA 3000 work. 

APPENDIX B (Declaration of Joe Miller) 

Page 33 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
10. At the time that the Aircraft was provided to AAR to perform lease-end heavy 

maintenance, USA 3000 had no further intent that the aircraft would ever again be operated for 

revenue service by USA 3000, because the lease was coming to an end. 

11. On May 15, 2008, we moved the aircraft and performed an engine check as part 

of the movement, because that sort of check is normal to perform before taxiing. 

12. During the May 15, 2008 engine check, we also checked the control surface 

operation because that is a normal pre-movement check. 

13. The May 15, 2008 control surface operation check included a check of the 

spoilers (as well as other control surfaces). 

14. The May 15, 2008 control surface operation check was successful, with no 

failures and no error messages. I can therefore verify that the spoilers were operational during 

this check. 

15. On May 17, 2008, Captain Frank William Walker and Captain Tony Scot Surratt 

were tasked with performing a maintenance acceptance test flight of the Aircraft. 

16. The maintenance acceptance test flight of the Aircraft was operated out of Miami 

Intemational Airport (MIA) - it departed and returned to MIA. 

17. Walker and Surratt were both employees of Brendan Airways, which does 

business under the name USA 3000 Airlines. 

18. Captain Surratt, Captain Walker and I reviewed the release to service 

documentation, and then the two pilots proceeded to the aircraft, where they each performed a 

separate walk around to ensure that the aircraft was in proper condition 

19. It is not possible to see whether the spoilers are in maintenance mode from the 

ground. 

20. After the walk-around, the pilots entered the cockpit. 

21. During the maintenance acceptance flight, I was present in the cockpit. 

APPENDIX B (Declaration of Joe Miller) 

Page 34 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
22. During the maintenance acceptance flight, the pilots discovered that two sets of 

the spoilers were inoperative. 

23. After discovering the spoiler malfunction during the flight, the pilots consulted 

the guidelines found in the Quick Reference Handbook (QRH) for two sets of spoilers 

inoperative. 

24. The QRH manual called for a normal landing at full flaps, with no speed increase, 

when two sets of spoilers are inoperative. It also includes a multiplier for minimum mnway 

length, which MIA easily met. No further guidance is provided in the QRH for two sets of 

inoperative spoilers. 

25. After landing, we analyzed the aircraft and found that two of the spoilers were in 

maintenance mode. 

26. We communicated with AAR about this finding (spoilers found in maintenance 

mode). 

27. AAR reported to us that AAR performed a complete review of their 

documentation to identify when the spoilers could have been placed in the maintenance mode. 

28. Based on their review, AAR concluded that they could find no circumstances 

under which the spoilers could have been placed in the maintenance mode during an AAR 

maintenance operation. 

29. AAR informed USA 3000 that the FAA had dropped the investigation of AAR 

when it became clear that there was no evidence that anyone from AAR placed the spoilers in 

maintenance mode. 

30. We performed a review of the maintenance operations performed by AAR on 

N265AV, including a review of the maintenance records. 

31. We could not find any point during the maintenance in which the spoilers could 

have been left in the maintenance mode, because operational checks of the spoilers made it 

impossible for the spoilers to have been left in the maintenance mode before May 15,2008. 

APPENDIX B (Declaration of Joe Miller) Washington Aviation Group, PC and the 

Page 3 S Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
32. Because of the May 15,2008 successful control surface operation check, we 

believe that it is likely that the spoilers were placed in the maintenance mode between that May 

15th check and the May 17th flight. 

33. No USA 3000 maintenance was scheduled to be performed on the Aircraft 

between the operational check on May 15th and the flight on May 17th. 

34. Immediately before the maintenance acceptance flight, there was evidence that 

AAR had performed work on the Aircraft on the orders of ILFC, the aircraft owner. 

35. Work performed by AAR for ILFC was not performed under USA 3000 

instmctions, and was not performed under USA 3000's control. 

36. Through discovery, we have obtained a copy of the April 16,2008 agreement 

between AAR and ILFC for the work performed on N265AV at ILFC's direction. That 

Agreement is attached as an exhibit to this Declaration. 

37. Through discovery, we have obtained a copy of the Invoice sent by AAR to ILFC 

for the work performed on N265AV at ILFC's direction. That Invoice is attached as an exhibit to 

this Declaration. 

38. Through discovery, we have obtained a copy of the Parts Consumption Report by 

AAR to ILFC for the work performed on N265AV at ILFC's direction. That Parts Consumption 

Report lists parts consumed during the work performed on N265AV at ILFC's direction, and it is 

attached as an exhibit to this Declaration. 

39. The Parts Consumption Report makes it clear that paint was among the suppliers 

bought and consumed for N265AV under ILFC's direction. 

40.1 believe, but I cannot prove, that the spoilers were placed in the maintenance 

mode by painters who painted the livery of State Transport Russia on the Aircraft between May 

15th and May 17th. 

41. USA 3000 paid for the fuselage to be painted, but USA 3000 was not responsible 

for painting the wings (and did not cause the wings to be painted). 

APPENDIX B (Declaration of Joe Miller) Washington Aviation Group, PC and the 

Page 36 LawOfficesof Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
42. It is normal for the leasing company to order work done on their own aircraft at 

the end of a lease, so that the aircraft can be made ready for the next lessee. 

43. Painting of the next lessee's livery on the Aircraft wings (where the spoilers are 

located) was done at ILFC's expense and according to ILFC's instructions. 

I declare under penalty of perjury under the laws of the United States that the 

foregoing is true and correct. 

EXECUTED on the 22nd day of October, 2010. 

'^%ak 

Joe Miller 

USi4 iOOO Director of Maintenance 

APPENDIX B (Declaration of Joe Miller) 

Pace 37 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW. Suite 503 

Washington. DC 20007 'Tel; 202-628-6776 
Joseph Miller Exhibits 

APPENDIX B (Declaration of Joe Miller) 

Page 38 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
EXHIBIT E ; STATKMKNTOFWQRK 

This AIRCRAFT STATEMFiNT OF WORK is cmcrcd into by and between AAR 

AIRCRAFT SERVICES - MIAMI. INC. (Formerly AVBORNE HKAVY 

MAINTENANCE, INC.) and INTERNATIONAL LEASE FINANCE 

CORPORATION. The icmis of Ihc General Tenns Agreement dated February 17, 

2006 arc hereby incorporated herein by reference. Capllaiir.cd terms used herein shall 

have Jhc meanings given to Ihcm in ilic General Terms Agrcemcnl. 

SECTION 1: DESCRIPTION OF AIRCRAFT/EQUIPMENT 

Model: A320 

Serial Number: ^ TA$M^2 - 7 ^^r \ 

Rcgisiralion: N265AV 

SECTION 2: DESCRIPTION OF WORK 

1.1 I'lic scrviccii to be provided by Avbonic for the C'ustontcr'ji A320 nirenifl with .serial number 

WSN577 arc ns follows: 

A. Accomplish the AirNVDrihiiicss DircciivcK/b'crvicc niillctiiis. alonj} with iii:secllaiicoi» 

inodincnttoiis/iiuinllaiion!! (Cnbiti Siirvoitlmice System, Kixcd ELT, EPt., httcrior 

Roconrij>itratioii nnd Scttir & Piiliii of itw AficniR'it \vh>B$, horiwnlal liUbilizcr and 

rii9cla|iu lugo/livcr>' stripes), per the Work Pnukiitfc supplied lo Avbonic Plenso «cc ihc 

rullo\viii)< pnues for tally jiliecl of nil Ihc Itcmii included in the Work P.iclcni>c, along with 

dcinils oil the aitcniA paini livery. 

1.2 All assocjnied iion-roiiiine niidings gcncmicd by each Alnvorthincsii Direclive/Scrvico Biillciins 

and niodincaiions/instnllatioiis will be pcrromicd on n linio aiul niatcrial bniiis. 

1.3 All pans, materials, kits and roCiblc rcquircnicnis associated with lhi( work.sco|>o arc excluded 

from ilic (Ixcdbid price and will be handled on a liinc and inntcriol biisis. 

l.'l Any additional iieins nddcd to the work scope that arc not liiiled in ihc work piickasc as sliown in 

following pages nriliLs AgrvX'ineni, will be flecQm|)h'ii-hcd on tinic-antUinaicrlal basis. 

1.5 All non-roniine NDT work. SID mapping/repair.^, part-i rabiicniiuns per cngiiiccrin|> dntwings, 

paint louch-tip, .x<rays, fuel tank work, welding, mnehiiung, specialized loolinji, aircraR polishing, 

along with all OMJ and inlioinid log items, arc not included in llio fixed bid price aiid will be 

pcrromicd on a time and inalerini basis. 

SECTION J: FIXED BID PRICING 

11tc ri-xcd bid price lo cover Ihc Work Package, as shown in (lie follawing pages |Kr Ihc terms awl 

conditions as stated :il)o\-c in Section 2 of this Agreement will be $91,440. 

SECTION 4: STRAIGHT TIME HOURLY RATE 

Tlic Straight Time hourly latrar role for this project will he S4S.(J0 per man hour. AH other hourly 

charges mid markups wnlj be per the General Terms Agrecmcm dated I'ebruary 17,2006. 
SECTION 5: SCHEDULED REDELIVERY DATE 

Avbonic estimates thai Ilic durniion ofiliis workscopc and scr\>ices will lake .S days to complete. All siiaiilimcs quoted by Avborno, whether orally or in wriling, shall be csiinviies Tor time or completion. 

IN WITNESS WHERHOF, Ihc parties have caused this Agreement lo be cxcctilcd by llieir duly nuihorizcd 

rcprcscntalix'cs. 

AAK Aircrnl't Services - Miiuiii, jj|;ic, liituriiniioiiAl Lcnsc Kiiinncc Corporiition 

<7. 

Signnlurc: J ^ J^- ^ Signaliirc; 

Title: {/P - ^/^' ^ -ma: <2)^}.^cAr''^/7.^^'"-Ca^( 
OAAR 

Aircraft Services — Miami 

FAA Repair Station it )^4R64 M 

5300 NW 36th Street 

PO Box 52-2602 

Miami. FL 33152 

www.aarcorp.mm 

refep/ione; (305) 871-2104 

Accounting Fax: (786) 265-4360 

Purchasing Fax: (786) 265-4362 

INVOICE 

Bill To : 

Attn: Mr. Rlchaid Poutier, Senior VP - Technical 

International Lease Finance Corporatkxi 

10250 Constellation Blvd. Suite 3400 

Los Angelas, CA 90067 

UNITED STATES 

Tel.: 310-788-1999 

Fax:310-788-1990 

Shipped To : 

Attn: Mr. Rk^hard PouUer, SenkY VP • Technical 

International Lease Finance Corporation 

10250 Constellation Blvd. Suite 3400 

Los Angelas, CA 90067 

UNITED STATES 

Tel.: 310-788-1999 

Fax:310-788-1990 

IMNTW/ONo. 

Customer P.O. 

Invoice Date 

Due Date 

Ship Via 

F.O.B, 

Shipped Date 

Our Contact 

281084 

Jul-17-2008 

Aug-16-2008 

ORIGIN 

Jul-17-2008 

ilijlilllliillliiliillliiill 

No.: 003741 Pg-i 

Sold To : Account No. [6] 

Attn: Mr. Rfchard Poulier, Senior VP - Technical 

Intemational Lease Rnance Corporatton 

10250 Constellation Blvd. Suite 3400 

Los Angelas, CA 90067 

UNITED STATES 

Tel.: 310-788-1999 

Fax:310.788-1990 

Remit Payment To : 

AAR Corp 

5300 NW 36th Street 

PO Box 62-2602 

Miami,. FL 33152 

Tel.: Telephone: (305) 871-2104 

Fax; Accounting Fax: (786) 265-4360 

Project f :W.0.28108-4 

Conlrtct« : ILFC RESPONSIBILriY 

Released :YES 

C. Label 4 : AIRCRAFT N285AV 

License No. :N/A 

Expires :N/A 

Domestic AWB 

InflAWB 

Origin 

Transport 

Nationality 

Trlpeght 

Terms : NET 30 

Alk»JCarpaneUi i 

Line 

1 

Detail of Charges Cnd 

Card No. : (F-FINAL3] ACCOMPLISH MISC. CUST 

CardNo.F-FINAL3 

ACCOMPUSH MISC. CUSTOMER REQUEST ON A/ 

NOTE: SEE BREAKDOWN OF CHARGES ON 

ATTACHED SHEET. ADDITIONAL FREIGHT 

CHARGES MAY FOLLOW. 

Charqes Summary 

A321 Labor 

:N2 6 

Qty Ordered 

)MER REQUEST ON A« 

1.00 EA 

)AV 

Shipped 

N265AV 

1.00 

1 1 

8(iaHomt,StiirAoaMtitMl 

Unit Price 

$ 144,216.1900 EA 

Amount 

$144,216.19 

$144,216.19 

Sub Total: $144,216.19 

Total: lUSDl S 144.216.19 

Ca(iyi<oM{c) PENTAOON 2«og S««w«ra,lnc onoiNM. 
AAR AIRCRAFT SERVICES MIAMI 

WO 28108.4 A/CN26SAV 

PARTS CONSUMPTION REPORT 

ILFC RESPONSIBILITY 

6/25/2008 

•PART NUMBER IITEM NUMBER 

14056 NR5866 

DESCRIPTION 

RTVWHITE"CRC" 

QTY 

ST !iTM 

m^m 

UM 

EA 

UNIT COST 

12.70 

EXT COST 

12.70 

622-5222-020 NR5866 RECEIVER-ADF EA 5,800.00 5,800.00 

CS3204B2.T NR5866 SEALANT EA 14.70 58.80 

A4031PRW NR5872 PUCARD-EXIT SIGN 12 EA 9.90 118.80 

[^i^ii^[^ii^iMiiii[?iMi^^^»iiiMMai ^ ^ 

2360 SSI OIL ENGINE (Q) 

^ 1 1 

24 EA 

£££ 

9.42 

5#^ 

226.08 

PITOT.COVERS SS1 PITOT.COVER EA 10.00 40.00 

S-10002-1300 SS1 LIFE VEST 20 EA 40.00 800.00 

NSA938152SA2000 NR5011 SOCKET AIRBUS STANARD P EA 10.00 50.00 

D92S1122801200 NR5015 PUTE ASSY, BLANKING EA 210.00 420.00 

EPOXO.88T10 NRS015 EPOXY ADHESIVE 10.01 

FASTWELDIOD.S NR5015 FASTWELD10 EA 17.77 17.77 

NSA935805-20 NR5015 CONDUIT FT 32.95 98.85 

NSA935805-24 NR5015 CONDUIT 10 FT 23.32 233.20 

10P20-44M-F/K4G NR3016 PRIMER 10 KT 483.40 4.834.00 

7139VYY-POCCNR (A320 NR3016 DECAL EA 240.00 240.00 

7139VYY-ROSSIYA(A32t NR3016 DECAL EA 240.00 240.00 

ECL-G-11161 NR3016 PAPYRUS WHITE KT 411.85 823.70 

EGL-G-11161 NR3016 PAPYRUS WHITE KT 411.85 2.471.10 

EGL-G-11161 NR3016 PAPYRUS WHITE KT 411.85 2,882.95 

ECL-G-1649 NR3016 PAINT, SIGNAL WHITE KT 669.50 1,339.00 

ECL-G-26229 NR3016 PAINT, SIGNAL BLUE KT 767.35 1,534.70 

ECL-G-3637 NR3016 PAINT, TRAFFIC RED KT 987.75 1.975.50 

ECL-G-6888 NR3016 SIGNAL ORANGE KT 327.02 327.02 

ECL-G-92 NR3016 PAINT, TRAFFIC BLACK KT 213.30 426.60 

PACKAGING, HAZMAT NR3016 HAZMAT PACKAGING 32 EA 22.50 720.00 

ABS0305KA2-11 NR5016 SECTION-HOSE 111897ITL 30 FT 15.00 450.00 

MS20006-20 NR5016 BOLT EA 7.51 15.02 

MS20006-22 NR5016 BUSHING EA 17.78 

NSA936830-22 NR5017 SPLICE 10 EA 47.03 470.30 

14055 NR5018 CLEAR.RTV EA 11.95 11.95 

DPI 00 NR5018 ADHESIVE EA 8.90 8.90 

E0404-02 NR5018 LAMP 25 EA 5.39 134.75 

P108 NR5018 TAPE, DOUBLE SIDE CLOTH 24 EA 13.99 335.76 

RDAX4931 NR5018 SEB TERMINAL PL EA 75.00 600.00 

m^fM 14055 NR5036 CLEAR.RTV EA 11.95 11.95 

D2527326700200 NR5036 FORKASSY2524 EA 164.00 328.00 

D2527326700200 NR5036 FORKASSY2524 EA 164.00 164.00 
AAR AIRCRAFT SERVICES MIAMI 

WO 28108^4 A/C N265AV 

PARTS CONSUMPTION REPORT 

ILFC RESPONSIBILITY 

6/25/2008 

TOTAL 34.129.19 

MATERIALS 28,249.19 
APPENDIX C: Judge Fowler's Decision in Babbitt v. Surratt 

APPENDIX C (Judge Fowler's Decision in Babbitt v. Washington Aviation Group, PC and the 

Surratt) Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
Page 1 

^ LexisNexis' 

3 of 3 DOCUMENTS 

J. RANDOLPH BABBITT, ADMINISTRATOR, Federal Aviation Administration, 

Complainant, v. TONY SCOT SURRATT and FRANK WILLIAM WALKER, 

Respondents 

NUMBER: Docket SE-18562, SE-18563 

National Transportation Safety Board 

2009 NTSB LEXIS 106 

DATE: September 2,2009 

ACTION: [*1] 

ORAL INITIAL DECISION 

ISSUEDBY: William E. Fowler, Jr., Chief Administrative Law Judge 

JUDGE FOWLER 

200 Chestnut Street 

Courtroom 300 

Philadelphia, Petmsylvania 

Wednesday, 

August 12,2009 

The above-entitled matter came on for hearing, pursuant to notice, at 10:00 a.m. 

BEFORE: WILLIAM E. FOWLER, JR., 

Chief Administrative Law Judge 

APPEARANCES: 

On behalf of the Administrator: 

RUSSELL CHRISTENSEN, ESQ. 

Federal Aviation Administration 
Page 2 

2009NTSB LEXIS 106, *1 

1701 Columbia Avenue 

College Park, Georgia 30037 

On behalf of the Respondents: 

JASON DICKSTEIN, ESQ. 

Washington Aviation Group, P.C. and the Law Office of Jason A. Dickstein 

21233 Wisconsin Avenue, N.W. 

Suite 503 

Washington, D.C. 20007 

202-628-6776 

JESSICA STUBBS. ESQ. 

Washington Aviation Group, P.C. and the Law Office of Jason A. Dickstein 

21233 Wisconsin Avenue, N.W. 

Suite 503 

Washington, D.C. 20007 

202-628-8947 

This has been a proceeding before the National Transportation Safety Board held pursuant to the provision of the 

Federal Aviation Act of 1958 as that Act was subsequently amended on the appeals of Tony Scot Surratt and Frank 

William Walker from Orders of Suspension dated April 8,2009, issued by the Regional Counsel, Southern Region of 

the Federal Aviation [*2] Administration, which purports to suspend Respondent Surratt's airline transport pilot 

certificate number (omitted) for a period of 180 days, and also Respondent Walker's airline transport pilot certificate 

number (omitted) for a period of 180 days. 

This has been a consolidated proceeding on the appeals of Respondents Surratt and Walker. 

The Administrator's Orders of Suspension as duly promulgated, pursuant to the National Transportation Safety 

Board's Rules of Practice in Air Safety Proceedings, as I mentioned earlier, was issued by the Regional Counsel of the 

Southern Region of the Federal Aviation Administration. 

This matter has been heard before this United States Administrative Law Judge and is provided by the Board's 

Rules of Practice, specifically Section 821.42 of those rules, while it is not mandatory, according to that section of the 

rules, that as the Judge in this proceeding I issue an Oral Initial Decision. I'm going to do that at this time. 

Following notice to the parties, this matter came on for trial on August 11th and 12th in Philadelphia, Pennsylvania. 

The Complainant in this proceeding was very ably represented by Counselor Christensen, Esquire, of the Regional [*3] 

Counsel's Office, Southern Region of the Federal Aviation Administration. The Respondents were represented by 

Counselors Dickstein and Stubbs, Esquire, and both have done a very admirable job, I might add. 

Both parties have been afforded the opportunity to offer evidence, to call, examine, and cross-examine witnesses. In 

addition, the parties were afforded the opportunity to make final argument in support of their respective positions. 
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2009 NTSB LEXIS 106, ^3 

I have reviewed the testimony and the documentary exhibits adduced by counsel. The Administrator has had 21 

Exhibits. The Respondent has had 11 Exhibits. The Administrator has had the testimony of four witnesses. The 

Respondent has had the testimony of three witnesses. Two of those witnesses of the Respondent were the two 

Respondents, themselves. Respondent Surratt and Respondent Walker. 

I have reviewed the totality of the testimony and the documentary exhibits, and as you know the burden of proof in 

a proceeding of this type is on the Administrator. 

The Administrator has set forth two Orders of Suspension here with 21 specific paragraphs set in the Orders against 

Captain Tony Scot Surratt, and against Captain Frank William Walker there were 12 paragraphs. ['^4] 

I'm going to try to be as brief and as concise as I can. 

This case in my humble estimation rises or falls on what the two Respondents knew, what knowledge they 

possessed prior to takeoff on May 17th, 2008, from Miami Intemational Airport. 

We have the testimony of four witnesses on behalf of the Administrator, Witness Laurence Johnson, Principal 

Operations Inspector; Witness Philip Stauffer is also a Principal Operations Inspector, Witness Thomas W. Welsh, who 

is an Inspector at USA3000 Airlines, the company we're dealing with in this proceeding and witness Frank Miller. All 

four of these gentlemen are exceedingly experienced. 

Inspector Stauffer was declared to be an expert, particularly in maintenance, maintenance engineering. And to make 

a long story short, the witnesses of the Administrator all testified validly and substantiated many of the numbered 

paragraphs set forth in both Orders of Suspension against Respondent Surratt and Respondent Walker. 

Respondent had three witaesses. Respondent Surratt, Respondent Walker, and Witness Paul O. Dow, Jr., who was 

qualified as an expert. Witness Dow has 4,300 hours in the A320 and has 11,000 hours as an airline transport 

certificated pilot. [*5] 

I have reviewed the testimony in this case. The two Respondents have testified and one of the Administrator's 

witoesses, Mr. Frank Miller, has testified that prior to takeoff, even though the Respondents in this aircraft knew there 

were spoiler difficulties, spoilers 3 and 5 were, as counsel for the Administrator has ably stated, locked out. 

Respondents and other members present in the aircraft including Witaess Miller who has testified on behalf of the 

Administrator, that computer buttons were reset and that the ECAM panel prior to takeoff was green. The pilots. 

Respondent Walker was the flying pilot. Respondent Surratt was tending to the other duties of a First Officer. 

The evidence here in my determination is persuasive, logical, and compeUing that the ECAM panel prior to takeoff 

or just before takeoff was green or clear, however you want to deem it when this flight took off from Miami 

Intemational Airport. Some 10,15,20 minutes later, messages came on the ECAM of the spoiler problems. 

The flying pilot, or I should say pilots, conversed about this problem, referred to the QRH, Quick Reference 

Handbook, which is the National Operation Manual reference book and decided since [*6] they had no prior 

knowledge before they took off with these spoiler difficulties; that even since they then had knowledge of the spoiler 

difficulties, that they would proceed with their flight, as they did, approximately two hours or more before they 

attempted their first landing, which had to be aborted because as you have heard during the testimony in this 

proceeding, the left wing fence as the testimony has stated, as opposed to the Administrator's Order which says the left 

wingtip, scraped the runway. So, the first attempt at landing was aborted and there was a second uneventful landing. 

I have heard a number of these cases, not similar to this one, but my point in raising this is there was no accident, 

no damage, no injuries, no fatalities, and that to me is always a bit refreshing to have a case like this because so many 

times they are just the opposite. 
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2009 NTSB LEXIS 106,'*6 

The burden of proof, as I stated earlier, is on the Administrator to prove by a fair and reasonable preponderance of 

the probative, reliable, and substantial evidence, the charges and allegations as set forth in these Orders of Suspension. 

It is my determination die Administrator's evidence as to what the Respondents knew prior [*7] to takeoff, the 

Administrator's evidence is lacking based on the totality of what we've had during the course of this two day 

proceeding. 

We've had the testimony of both Respondents, as well as the last witness of the Administrator, Mr. Frederick 

Miller, who is the Director of Maintenance for USA3000 Airlines, who concurred with the two Respondents' testimony 

that immediately prior to takeoff the ECAM panel was clear, if not green. There was some testimony that it was green. 

And thereby and thereupon the flight took off. 

Administrator's witnesses have testified to the opposite result conceming the ECAM panel prior to takeoff and 

notice to the pilots, but I don't believe, and it is my determination that the Administrator's case is persuasive and 

compelling enough to rebut the total testimony adduced on the Respondents side of the case. 

We can look at this case, I believe in another way. Both Respondents are airline transport rated certificated pilots 

who are held to the highest degree of care, judgment, and responsibility. Now, the evidence is on the Respondents' side, 

1 believe, in this case that the Respondents did not know when they took off the full situation of the spoilers. [•'8] 

Three witnesses, as I mentioned, have testified the ECAM panel was clear, indicated green, and they took off. 

Now, the question after that comes down to what did Respondents Surratt and Walker do when they got the 

message during the flight some 20,25 minutes later about the inoperable spoilers. Respondent Surratt is the 

Pilot-in-Command of this flight. Respondent Walker was the flying pilot. As Pilot-in-Command, Captain Surratt within 

the realm of his authority as Pilot-in-Command, continued the flight as opposed to the contention of the Federal 

Aviation Administration, that when they were afforded this message during the flight about the spoiler situation that 

they immediately end and abort the flight. 

Administrator's A-7, which is a letter January 11,2008, to Inspector Laurence Johnson issued by Joseph Guhin, 

Director of Safety and Regulatory Compliance for USA3000 Airlines, and I will read a certain portion of that letter. The 

fourth paragraph on the first page of this Exhibit A-7 said during the flight control check, during the taxi checklist the 

crew noted there was an ECAM caution of LAF degrader. It was cleared by resetting the spoiler elevated computer SEC 

push buttons. According ["'9] to both Captain Surratt and Joe Miller, this caution is not uncommon, and was quickly 

cleared. The aircraft had a clean upper ECAM page prior to the uneventful takeoff. 

While airbome, during routine page call-ups the ECAM panel displayed symmetrical spoiler 3, 5 Left R spoiler 

amber indications. During the flight a pilot left the cockpit and returned noting two spoilers on the left wing were 

floating. 

A USA3000 Airline Inspector's employee took some pictures of those spoilers, noted that the radder trim going out 

of limits, and Captain Walker disengaged the autopilot and manually trimmed the aircraft. 

The paragraph goes on to say about somewhat difficulty there was in landing the aircraft and with the scrape of the 

ranway by the left wing fence. 

As I mentioned, the totality of the seven witnesses that have testified in this proceeding, among the four, one was 

designated an expert. Inspector Johnson, and there was one expert witaess, Paul O. Dow, on behalf of the Respondent. 

You may recall Witaess Dow, who was present during the course of this proceeding, said that he concurred 

wholeheartedly with the actions of Respondents Surratt and Walker and his testimony also encompassed the ['*10] 

situation that has often occurred on a maintenance acceptance test flight which has the aircraft involved, which has been 

laid up for quite a while, that it is not unconmion for the things that occur in the flight we're concemed with here that 
Page 5 

2009NTSBLEXIS106,'*10 

did occur, and as both the Respondents and Witaess Miller testified, this caution as they exercised by resetting the 

computer buttons which cleared the ECAM panel and allowed them to takeoff in an uneventful takeoff with no 

problems in their mind. And as they have both testified to, both Respondents were not cognizant of a serious spoiler 

problem until during the flight, they were later notified and they made their decisions, particularly Respondent Suiratt 

as Pilot-in-Command, to continue the flight, which they did. And other than the wing fence scraping the ranway on the 

second landing attempt, the landing was uneventful and as I said, fortanately, this was merely an incident and not an 

accident. 

So that, ladies and gentlemen, as I said I thought the Respondents' case successfully rebutted the Administrator's 

case. Much has been made of the utilization or non-utilization of the minimum equipment list prior to takeoff. I think 

the Respondents [•11] successfully were persuasive and compelling in their evidence that the minimum equipment list 

was not applicable or apropos since the ECAM panel was cleared and the Respondents took off accordingly. 

So that, ladies and gentlemen, I'm sure you get the drift of my decision here now which to use a colloquialism, 

Respondents have carried the day. And I will make my specific following Findings of Fact and Conclusions of Law 

accordingly. 

Taking up first Captain Tony Scot Surratt, his Order of Suspension. 

1) Respondent Surratt admits and it is found that he was and is the holder of airline transport pilot certificate 

number (omitted). 

2) The Respondent admits and it is found that all times relevant herein he was employed as a pilot for Brendan 

Airways, LLC. 

The remaining Paragraphs 3,4, 5,6, and 7,1 will not spell those out because the Respondent has admitted all of 

those allegations as set forth in Paragraphs 3,4, 5, 6, and 7. And I will find and admit accordingly where those 

numbered paragraphs are concemed. 

8) It is found that the amber LAF degraded message on the aircraft's ECAM panel comes on when there is a failure 

of one of the aircrafts spoiler servo jacks. 

9) It is found that [* 12] during the flight but prior to takeoff the ECAM panel indicated that the following wing roll 

spoilers were not operational and/or locked out. It is my determination that designated Paragraphs C and D dealing with 

the right wing spoilers number 3 and 5 were found accordingly. 

10) It is found that during the flight but prior to takeoff Respondent Surratt was not aware that the aircraft's ECAM 

indicated that the following wing roll spoilers were not operational and were blocked out, but that the right wing spoiler 

number 3 and right wing spoiler number 5 were indicated accordingly. It is my determination that appropriate action 

was taken to clear the ECAM panel and the takeoff quickly followed thereafter. 

11) It is found that pursuant to the aircraft's minimum equipment list, the aircraft cannot be dispatched when two or 

more spoilers on either wing are in an inoperable condition. But based on the totality of the evidence and the facts and 

circumstances we've had adduced during the course of this proceeding, the minimum equipment list immediately prior 

to takeoff was not operable and should not have been invoked at the time prior to takeoff, and was not invoked. 

12) The Respondents admit [""n] and it is found that notwithstanding the above, during the flight the Respondent 

Surratt operated the aircraft during the takeoff with no knowledge of the following inoperative instraments: C and D of 

Paragraph 12, which is the right wing roll spoiler number 3, and D, the right wing roll spoiler number 5. 

13) It is found that during the flight and after 20 minutes after takeoff, the ECAM panel once again indicated that 

the following wing spoilers were not operational and/or were locked out: C and D as set forth in Paragraph 13 of that 
Page 6 

2009NTSB LEXIS 106, •13 

Order. 

14) It is found that during the flight the flying pilot, Frank William Walker, disconnected the autopilot because the 

radder trim was not operating properly and was out of range. 

15) It is found and the Respondent admits that during the flight Respondent was informed that two flights [sic] on 

the left wing were floating by a person who had visually inspected the left wing while on board the aircraft. 

16) It is found that during the flight when Respondent first attempted to land the aircraft at Miami Intemational 

Airport, the aircraft's left wing fence contacted the runway causing damage to the left wing fence. 

17) The Respondent admits and it [• 14] is found that during the above referenced inoperable ring roll spoilers 

during the flight your first landing attempt was aborted. 

18) During the flight it is found that the Respondents operated the aircraft which then was in an unairworthy 

condition but the Respondents had no notice until that time that the aircraft was in an unairworthy condition. 

19) It is found that during the flight the Respondent Surratt failed to discontinue the flight after the unairworthy 

mechanical, electrical, or stractaral condition occurred with reference to the condition of the spoilers. 

20) It is found that during the flight the Respondent did not operate the aircraft in a careless manner so as to 

endanger the life or property of another. 

21) It is found by reasons of the foregoing, the Respondent did not violate the following aviation regulations and 

I'm incorporating by reference as set forth in Paragraphs A, B, C, and D of Paragraph 21 of the aforesaid Order of 

Suspension as it was based on the totality of the evidence, coupled with the documentary exhibits, that there was a 

non-violation of Section 91.23(a), Section 91.213(a), and Section 91.7(a), and Section 91.7(b) of the aforesaid Federal 

Aviation [•IS] Regulations. 

22) This Judge finds that safety in air commerce or air transportation and the public interest does not require the 

affirmation of the Administrator's Order of Suspension as to Captain Tony Scott Suiratt, dated April 8th, 2009, because 

of the previously alluded to non-violations of the four PARS sections mentioned earlier. 

ORDER 

IT IS ORDERED AND ADJUDGED THAT the Administratoi's Order of Suspension as to Captain Tony Scot 

Surratt, dated April 8th, 2009, be, and the same, hereby is dismissed and reversed. 

This order is issued by William E. Fowler, Jr., a United States Administrative Law Judge. 

ADMINISTRATIVE LAW JUDGE FOWLER: As to Captain Frank William Walker I will now proceed to make 

the following specific Findings of Fact and Conclusions of Law. 

1) That Respondent Walker admits Paragraphs 1, 2,3,4, 5,6, and 7, and I incorporate those admissions of the 

Respondent Walker by reference as those numbered paragraphs 1 through 7, pertaining to the Administrator's Order of 

Suspension are set forth regarding Respondent Walker. 

8) It is found that the amber LAF degraded message on the aircraft's ECAM panel came on as it did when there was 

a failure of one of the aircraft [• 16] spoiler servo jacks. 

9) During the flight but prior to takeoff it is found that the ECAM panel indicated that it was clear and green even 

though the right wing spoiler number 3 and right wing spoiler number 5 had been locked out and both Respondents as 

they have testified, the ECAM panel was subsequently cleared with the aforementioned four green indicators and the 
Page 7 

2009 NTSB LEXIS 106, • 16 

takeoff proceeded. 

10) It is found that during the flight but prior to takeoff. Respondent Walker was not aware that the ECAM panel 

had indicated that the roll spoilers were not operational and/or were locked out because computers were reset clearing 

the aforesaid ECAM panel enabling the Respondents to takeoff with apparently the spoilers problem not being 

problematical at that time. 

11) It is found that pursuant to the aircraft's minimum equipment Ust which is acknowledged by its pilots that the 

aircraft cannot be dispatched when two or more spoilers on either wing are in an inoperable condition, the Respondents, 

both Surratt and Walker, were not knowledgeable because the ECAM panel stated clearance or it was green for them to 

make the takeoff as they did. 

12) The Respondent admits notwithstanding the above, that during [•I7] the flight Respondent Walker operated 

the aircraft during takeoff and thereafter with the following inoperative instruments and I'm incorporating by reference 

under Paragraph 12, Paragraph C and D right wing roller and the right wing roll spoilers number 3 and 5. 

13) It is found that during the flight and within 20 minutes after takeoff the ECAM panel once again indicated that 

the following right wing spoilers were not operational and/or were locked out — right wing spoiler number 3 and right 

wing spoiler number 5. As the evidence would indicate, this is the first knowledge that both Respondents had where the 

ECAM panel were concemed that they had any knowledge of the spoiler problem. 

14) It is found that during the flight when Respondents first attempted to land the aircraft at Miami Airport, the 

aircraft's left fence connected with the runway causing damage to the left wing fence. 

15) It is found that due to the above referenced inoperable wingtip spoilers during the flight your first landing 

attempt was aborted. 

16) The Respondent operated the aircraft in an unairworthy condition, but had no knowledge at the time when it 

first became unairworthy that it was unairworthy. 

17) During [•IS] the flight the Respondent did not operate the aircraft in a careless maimer so as to potentially 

endanger the life or property of another. 

By reason of the foregoing, there was a non-violation of the Federal Aviation Regulations and I'm incorporating by 

reference those sections without spelling them out. Section 91.13(a), Section 91.213(a), and Section 91.7(a) as there was 

a non-violation of these sections by Respondent Walker. 

18) This Judge finds that safety in air commerce or air transportation and the public interest does not require the 

affirmation of the Administrator's Order of Suspension dated April 8th, 2009, as it applies to Respondent Walker due to 

the non-violation by Respondent Walker on the aforesaid mentioned regulations alluded to that were not violated by 

Respondent Walker based on the totality of the evidence, coupled with the I documentary exhibits as afforded during 

the course of this proceeding. 

ORDER 

IT IS ORDERED AND DECREED THAT the Administratoi's Order of Suspension as to Captain Frank William 

Walker is hereby reversed and dismissed because of the non-violations of the aforementioned Federal Aviation 

Regulations. 

This Order is issued by William E. Fowler, [• 19] Jr., United States Administrative Law Judge. 

EDITED ON September 2,2009 
Pages 

2009 NTSB LEXIS 106, ^19 

WILLIAM E. FOWLER, JR. 

Chief Administrative Law Judge 

APPEAL 

JUDGE FOWLER: Where both Respondents are concemed. Captain Surratt and Captain Walker, on the issue of 

appeal, either party may appeal the Judge's Oral Initial Decision. 

The Notice of Appeal, if there is one, has to be filed within ten days following the issuance of the Judge's Oral 

Initial Decision which was issued on August 12th, 2009. 

In order to perfect the appeal, the Appellant must file a brief within 50 days of the Judge's Oral Initial Decision 

setting forth the Appellant's objections to the Judge's Oral Initial Decision. 

The Notice of Appeal and the brief shall be filed with the National Transportation Safety Board, Office of Judges, 

490 L'Enfant Plaza, East Soutiiwest, Washington, D.C, 20594. 

If no appeal to the Board from either party is received, or if the National Transportation Safety Board of its own 

volition does not file a motion to review the Judge's decision within the time allowed, then the Judge's decision shall 

become final. 

Timely filing of such an appeal, however, shall stay the order as set forth in the Judge's decision. 

Off[^20] the record. 

(Off the record.) 

JUDGE FOWLER: Let the record indicate that counsel for the Administrator has stated that the Administrator will 

be filing a Notice of Appeal from the Judge's Oral Initial Decision. 

If there's nothing further, at this time I would declare the hearing closed. But before we go off the record, I would 

like to thank counsel for the Administrator, as well as counsel for the Respondents for their very able, industrious, and 

eradite efforts on behalf of their respective clients. I would also like to express my thanks to all the witaesses for their 

help, assistance, and cooperation during the course of this proceeding. Thank you all very much. 

We stand adjourned. 

(Whereupon, the hearing in the above-entitled matter was closed.) 

CERTIFICATE 

This is to certify that the attached proceeding before the 

NATIONAL TRANSPORTATION SAFETY BOARD 

IN THE MATTER OF: Tony Scot Surratt and 

Frank William Walker 

DOCKET NUMBER: SE-18562; SE-18563 

PLACE: Philadelphia; Pennsylvania 
Page 9 

2009 NTSB LEXIS 106. ^20 

DATE: August 12,2009 

was held according to the record, and that this is the original, complete, trae and accurate transcript which has been 

compared to the recording accomplished at the hearing. 

Timotiiy[^21] J. Aticinson, Jr. 

Official Reporter 

Legal Topics: 

For related research and practice materials, see the following legal topics: 

Transportation Law Air TransportationCertificatesAirman CertificatesTransportation Law Air 

TransportationPersonnelGeneral OverviewTransportation Law Air TransportationU.S. National Transportation Safety 

BoardProcedures 
APPENDIX D: NTSB's Decision Affirming Babbitt v. Surratt (on appeal) 

APPENDIX D (NTSB's Decision in Babbitt v. Surratt) Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
Page 1 

LexisNexis* 

2 of 3 DOCUMENTS 

J. RANDOLPH BABBITT, Administrator, Federal Aviation Administration, 

Complainant, v. TONY SCOT SURRATT and FRANK WILLIAM WALKER, 

Respondents 

NUMBER: Order No. EA-5514; 

Dockets SE-18562 and SE-18563 

National Transportation Safety Board 

2010 NTSB LEXIS 31 

DATE: March 23, 2010, 

Adopted 

ACTION: [•I] 

OPINION AND ORDER 

ISSUEDBY: National Transportation Safety Board 

SERVED: March 24,2010 

The Administrator and respondents have appealed from the oral initial decision of Chief Administrative Law Judge 

William E, Fowler, Jr., issued on August 12,2009, following a 2-day evidentiary hearing, nl The law judge found that 

the Administrator did not prove the allegations in the complaint, in which the Administrator charged respondents with 

operating an Airbus A320 while it was in an unairworthy condition. n2 The Administrator alleged that respondents 

committed the regulatory violations when they operated the A3 20 on May 17,2008, on a maintenance acceptance flight 

that departed from and retumed to Miami Intemational Airport, in which two spoilers on each wing of the aircraft were 

inoperative. The Administrator's complaint ordered a suspension of respondents' airline transport pilot (ATP) 

certificates for a period of 180 days each. We deny the Administrator's appeal, and dismiss respondents' appeal, based 

on their lack of timeliness in filing the appeal brief. 

[*2] 

nl A copy of the initial decision, an excerpt from the hearing transcript, is attached. 

n2 The Administrator charged both respondents with violating 14 C.F.R. §§ 91.7(a), which prohibits operation 

of a civil aircraft that is not in an airworthy condition; 91.13(a), which prohibits careless or reckless operations 

so as to endanger the life or property of another; and 91.213(a), which states that, except as otherwise provided, 

no person may take off an aircraft with inoperative instmments or equipment installed without meeting the 
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2010 NTSB LEXIS 31, ^2 

requirements of § 91.213. The Administrator also charged Respondent Surratt with violating § 91.7(b), which 

states that the pilot-in-command (PIC) of a civil aircraft shall discontinue the flight when unairworthy 

mechanical, electrical, or stractaral conditions occur. 

In the orders of suspension, which the Administrator issued on April 8,2009, and submitted as the complaints in 

this case, the Administrator alleged that, prior to taking off, an amber "LAF DEGRADED" n3 message appeared on the 

aircraft's Electronic Centralized Monitor (ECAM) in the cockpit, and that such a message appears when a failure of one 

of the aircraft's spoiler servojacks has occurred. [^3] The complaints further stated that, also prior to takeoff, the 

ECAM indicated that spoiler Nos. 3 and 5 on both the left and right wings were not operational and/or were locked out, 

and that respondents were aware of this indication. The complaints alleged that the aircraft's Minimum Equipment List 

(MEL) does not allow operation of the aircraft when two or more spoilers on either wing are in an inoperable condition. 

The complaints also alleged that, notwithstanding the indications on the ECAM, respondents took off, and that, within 

20 minutes of taking off, the ECAM once again indicated that the spoilers at issue were not operational and/or were 

locked out. The complaints stated that, during the flight, a person who had visually inspected the left wing while 

onboard the aircraft informed respondents that two spoilers on the left wing were "floating," and that respondents 

aborted their first landing attempt at Miami after the aircraft's left wing tip contacted the runway and caused damage to 

the left wing tip. 

n3 The evidence in the record provides that the acronym "LAF" indicates "load alleviation function." 

[•4] 

At the hearing, n4 the Administrator called four witaesses to testify and presented numerous exhibits. The FAA 

principal operations inspector for respondents' employer, USA 3000 Airways, Laurence Johnson, as well as an FAA 

principal avionics inspector for general aviation repair stations, Philip Stauffer, both testified. Inspector Johnson 

identified an FAA-approved checklist applicable to USA 3000's operation of A320s, as well as a portion of the 

FAA-approved flight crew operating manual that applies to USA 3000's operation of A320s. Exhs. A-2 and A-3. 

Inspector Johnson testified that both checklists require checking the flight controls prior to takeoff, and that checking 

the spoilers involves the captain moving the stick in the cockpit while the copilot observes the ECAM for indications 

that the spoilers moved in response to the captain's input on the stick. Inspector Johnson stated that the flight controls 

that the pilots must check include the spoilers, and that Airbus defines spoilers as a primary flight control. Tr. at 44. 

Inspector Johnson testified that the ECAM should display four green arrows on each side, indicating that all spoilers are 

working normally. Inspector Johnson [•S] opined that, if the ECAM indicates an abnormality with the spoilers, the 

pilot should refer to the manuals to interpret what he or she observes on the ECAM, and contact the maintenance 

department about the abnormality. Inspector Johnson stated that a pilot can re-set the ECAM by pressing a button. 

Inspector Stauffer testified that the ECAM should not display green unless the spoilers have a "healthy hydraulic 

pressure." Tr. at 96. 

n4 Prior to hearing, the law judge consolidated the cases, and both parties filed motions for summary judgment 

under our Rules of Practice. The law judge denied both motions, based on his determination that genuine issues 

of material fact existed conceming whether respondents knew that the aircraft was in an unairworthy condition 

prior to and during the flight at issue. As such, the law judge ordered a hearing for the case. 

Inspector Johnson further testified that, if a spoiler is in "maintenance mode" in an A320, then it will not respond to 

input from the cockpit because it will not have [^6] hydraulic pressure; similarly. Inspector Stauffer stated that a spoiler 
Page 3 

2010NTSB LEXIS 31,^6 

cannot respond to inputs from the cockpit when it is in such a manual position. Inspector Stauffer testified that an 

aircraft's spoilers should never be in maintenance mode for flight, according to the USA 3000 Airbus Manual. Tr. at 94; 

Exh. A-9. Inspector Johnson stated that, if the spoilers on an A320 are not functioning, then this circumstance changes 

the lift and drag components of the wing. Therefore, Inspector Johnson testified that a pilot's discovery that spoilers are 

not fimctioning should cause the pilot to consider immediately retuming to a suitable location for landing. Inspectors 

Johnson and Stauffer both testified that respondents should not have taken off in the A3 20 after receiving the ECAM 

waming, because they could not know how the aircraft would fly and land in such a configuration. Inspector Stauffer 

stated that the FAA received a statement from USA 3000 indicating that, after the May 17,2008 flight, they found the 

spoilers in a manual position. n5 

n5 Tr. at 96, 100,102; Exh. A-10 (e-mail message from Joe Miller, director of maintenance and engineering for 

USA 3000, stating that employees from USA 3000 discovered the spoilers in "maintenance mode" after the 

flight). 

1*7] 

Inspector Stauffer identified tabular data from the flight data recorder (FDR) on the A320 at issue. Exh. A-11. 

Inspector Stauffer testified that the data indicates that the pilots performed the flight control checks prior to takeoff, and 

that, during the checks, half the spoilers responded to inputs from the cockpit normally, while the other half did not. 

Based on this FDR data. Inspector Stauffer opined that the flight control check was unsuccessful, and that the ECAM 

must have shown spoiler numbers in amber, rather than green, and indicated that the spoilers were inoperative. 

Inspector Stauffer also stated that the FDR data indicates that respondents continued with the flight, rather than taking 

the aircraft back to the gate for maintenance. Inspector Stauffer also identified excerpts from the MEL applicable to the 

A320 at issue, and testified that the MEL requires eight operative spoilers for flight, and does not allow spoiler Nos. 3 

and 5 to be inoperative. On cross-examination. Inspector Stauffer identified a copy of a 1976 airframe and powerplant 

manual, which categorizes spoilers within a secondary group of control surfaces. 

The Administrator also called Thomas Welsh, a quality [•S] inspector of aircraft for USA 3000 who was on the 

May 17,2008 flight, to testify. Inspector Welsh stated that he saw spoiler Nos. 3 and 5 floating up approximately S to 

10 inches on the left wing about 15 to 20 minutes into the flight. Inspector Welsh testified that, based on how high he 

observed the spoilers floating, he knew that they did not have hydraulic fluid. Inspector Welsh also stated that, after 

they were on the ground, he checked the aircraft's actaator and saw spoiler Nos. 3 and 5 in "M" mode, which indicated 

that the pilot could not control them with inputs from the cockpit. 

The Administrator concluded the case-in-chief by calling Joe Miller, who was in the cockpit with respondents on 

the flight in question, to testify. Mr. Miller confirmed that he and the pilots saw the "LAF DEGRADED" message on 

the ECAM prior to takeoff, but that this message did not indicate a serious problem to stop them from taking off. Mr. 

Miller fiirther stated that he reset the spoiler elevator computers (SEC) in an attempt to clear the "LAF DEGRADED" 

message, and that, when he and respondents did not see any amber warnings appear on the ECAM, they proceeded with 

the takeoff. Mr. Miller recalled [^9] that, during the flight, the aircraft "[had] some yaw to it," so they tumed the 

autopilot off and re-trimmed the aircraft Tr. at 223. Mr. Miller also recalled that, once they had reached an altitade of 

about 39,000 feet, an observer informed them that he saw two spoilers floating on the left wing. Mr. Miller testified that 

Respondent Surratt consulted the Quick Reference Handbook (QRH) in the cockpit, and determined that they could 

continue with the flight, but would need to increase their landing distance. Mr. Miller described the first attempted 

landing as "unnerving" (Tr. at 226), and recalled that, after landing, an inspection group that he directed informed him 

that two of the spoilers were in "M" mode (Tr. at 228). Mr. Miller opined that the ECAM was faulty in that it did not 

register the spoilers as inoperative, and that it was reasonable for respondents to think that it was a spurious message. 

Mr. Miller stated that he did not believe respondents reacted in an unreasonable manner under the circumstances. 
Page 4 

2010 NTSB LEXIS 31. ^9 

In response to the Administrator's case, respondents both testified on their own behalf Both respondents stated that 

they had conducted several previous maintenance acceptance [• 10] flights, and they both have held ATP certificates 

with type ratings in A320s for a lengthy period of time. Respondent Surratt recalled that, during the flight control 

checks that they performed prior to taking off, they noticed several wamings on the ECAM, including an audible chime 

and message indicating that spoiler Nos. 3 and 5 were inoperative. After resetting the SEC, Respondent Surratt stated 

that they again "got multiple wamings," and then reset an additional set of computers. Finally, Respondent Surratt 

recalled that they "had nothing left except for LAF degraded," which he described as not unusual. Tr. at 287. n6 Both 

respondents testified that an A320 can safely take off while this message is on, and that they had seen the message on 

other flights. Both respondents also stated that they believed they only saw the "LAF DEGRADED" message prior to 

taking off, and that they did not know that spoiler Nos. 3 and 5 were in maintenance mode until after the flight. 

n6 Respondent Surratt testified that Airbus originally intended the "LAF DEGRADED" message to ease 

turbulence, but that it had never successfully fimctioned to do so. Tr. at 287. 

[•11] 

Approximately 20 to 25 minutes into the flight. Respondent Surratt testified, an ECAM message appeared 

indicating that spoiler Nos. 3 and 5 were inoperative, and that he cleared the ECAM while Respondent Walker operated 

the aircraft. Respondent Surratt recalled referencing the QRH, which he described as indicating that this was "no 

problem," and that he need not land the aircraft immediately, but that they should use a" 1.15 ... runway multiplier." Tr. 

at 290. n7 Respondent Walker stated that the ECAM also did not direct them to land immediately; Respondent Walker 

opined that landing earlier would not have made a difference with regard to the spoiler issue. Respondent Surratt 

testified that they continued the flight, but that the waming remained on. n8 Respondent Surratt also stated that he did 

not consult the MEL during the flight, but that, had he known that spoiler Nos. 3 and 5 were inoperative prior to the 

flight, he would have referenced the MEL and not taken off. 

n7 On cross-examination. Respondent Surratt acknowledged that the QRH does not address the specific 

situation in which spoiler Nos. 3 and 5 are in maintenance mode during a flight. 

[•12] 

nS Respondent Surratt opined that continuing the maintenance acceptance flight had other benefits, such as 

burning off fuel and providing the opportunity to identify other potential problems with the aircraft after it had 

undergone maintenance. 

With regard to the landing. Respondent Surratt recalled that the aircraft "seemed to bounce" on their first approach, 

and that it "hard roll[ed] left," so he firewalled the throttles and initiated a go-around, after which they had a successftil 

approach. Tr. at 291. Respondent Surratt testified that the aircraft sustained damage to its vertical wing tip vents. At the 

conclusion of his testimony. Respondent Surratt identified a newsletter that Airbus released 2 months after the flight at 

issue, which instracts pilots to perform a new flight control check if they have any indication of spoiler problems. Exh. 

R-7. Both respondents also identified copies of reports and the National Aeronautics and Space Administration (NASA) 

receipts that they submitted under the Aviation Safety Reporting Program (ASRP) following the flight at issue. n9 

n9 Under the ASRP, the Adminish-ator may waive the imposition of a sanction, despite the finding of a 
Page 5 

2010 NTSB LEXIS 31,^12 

regulatory violation, as long as certain other requirements are satisfied. Aviation Safety Reporting Program, 

Advisory Circular 00-46D at P 9c (Feb. 26, 1997). The Program involves filing a report with NASA, which may 

obviate the imposition of a sanction where (1) the violation was inadvertent and not deliberate; (2) the violation 

did not involve a criminal offense, accident, or action found at 49 U.S.C. § 44709; (3) the person has not been 

found in any prior FAA enforcement action to have committed a regulatory violation for the past 5 years; and 

(4) the person completes and mails a written report of the incident to NASA within 10 days of the violation. 

[*13] 

Respondents also called Paul Dow to provide expert testimony on the subject of A320 operations. Mr. Dow stated 

that Airbus aircraft are known for being subject to spurious messages after undergoing heavy maintenance, as the 

aircraft at issue had undergone. Mr. Dow opined that respondent's belief that the aircraft was fit for takeoff was 

reasonable, and that the QRH does not advise pilots to land an aircraft when two sets of spoilers are inoperative, but 

instead only provides an increased factor for landing distance. Mr. Dow further testified that the MEL is not applicable 

during flight. 

At the conclusion of the hearing, the law judge issued an oral initial decision, in which he determined that the 

Administrator's evidence that respondents knew that spoiler Nos. 3 and 5 were inoperative prior to flight was "lacking." 

Initial Decision at 523-24. The law judge held that the testimony at the hearing established that the ECAM panel was 

"clear, if not green," prior to takeoff (id. at 524), and that respondents' testimony that the "LAF DEGRADED" waming 

is not a reason for concern was persuasive. The law judge also mentioned that Mr. Dow had testified that he concurred 

with the actions respondents [• 14] took under the circumstances. The law judge concluded that the MEL was not 

applicable to the aircraft at issue, because respondents cleared the ECAM panel. The law judge did not find that 

Respondent Surratt had erred in choosing to continue with the flight, as the second landing did not result in substantial 

damage or serious injury. The law judge determined that respondents had operated the aircraft while it was in an 

unairworthy condition, but that they did not know that it was unairworthy, and therefore did not violate the regulations, 

as charged. 

Respondents' Appeal 

Respondents filed an appeal brief, in which they argue that the law judge erred in not granting their motion for 

summary judgment prior to the hearing. The Administrator submitted a motion to dismiss respondents' appeal, on the 

basis that their appeal brief was untimely. The certificate of service attached to respondents' appeal brief indicates that 

they served the brief on October 8,2009. After filing the notice of appeal, our Rules of Practice state that an appealing 

party must perfect the appeal by filing an appeal brief within 50 days after the date of the initial decision. 49 C.F.R. § 

821.48(a). In the case at [•IS] issue, the law judge issued the oral initial decision on August 12, 2009. Therefore, the 

parties' deadline for perfecting their appeals by filing their briefs was October 1,2009. Respondents have not filed a 

motion for leave to submit their appeal brief late, based on good cause, and they do not mention their lack of timeliness 

in their appeal brief. Respondents did not reply to the Administrator's motion to dismiss their appeal. Under our Rules 

of Practice, we grant the Administrator's motion and thereby dismiss respondents' appeal. nlO 

nlO See, e.g.. Administrator v. Hooper. 6 NTSB 559 (1988). 

The Administrator's Appeal 

On appeal, the Administrator argues that several aspects of the law judge's decision are erroneous. The 

Administrator first contends that the law judge did not explain what evidence he accepted or rejected, and failed to 

address the issue that respondents did not successfully complete a flight confrol check because the ECAM did not 
Page 6 

2010 NTSB LEXIS 31, •IS 

display four green arrows; in this regard, [• 16] the Administrator argues that the law judge's finding that no ECAM 

wamings displayed prior to flight is contrary to the overwhelming weight of the evidence. The Administrator also 

asserts that the evidence establishes that respondents had sufficient knowledge of the inoperable spoilers prior to taking 

off. The Administrator points out that neither respondent testified that they observed a green ECAM display upon 

manipulating the sidestick in the cockpit, but that they testified that they saw green displays only after Mr. Miller 

completed multiple resets of the computers in the cockpit. 

The Administrator fiirther argues that the law judge erred when he failed to explain why he believed the MEL was 

inapplicable, and that this interpretation is contrary to § 91.213(a), which prohibits operation of an aircraft with 

inoperative equipment, unless the equipment appears on the MEL. The Administrator also challenges the law judge's 

determination that Respondent Surratt's decision to continue with the flight was reasonable under the circumstances, as 

Respondent Surratt became cognizant of a serious spoiler problem during the flight, and because respondents provided 

no support for their contention [•I7] that the QRH permitted continued operation with floating spoilers. The 

Administrator contends that respondents have a cavalier attitade conceming aviation safety, and that Respondent 

Surratt's continuation of the flight for 3 hoiu^ after he leamed that the spoilers were malfiinctioning is indicative of this 

attitade. Lastiy, the Administrator asserts that the circumstances warrant a 180-day suspension of respondents' ATP 

certificates. Respondents contest each of the Administrator's arguments, and urge us to affirm the law judge's decision. 

With regard to the Administrator's appeal, we agree that the law judge did not fully explain the fundamental reasons 

for some of the conclusions he made. The law judge did not explicitly discuss whether he found respondents' testimony 

more credible than the Administrator's witaesses' testimony, but his decision seems to indicate that respondent's and Mr. 

Dow's testimony formed the basis for his decision. We have long held that we defer to law judges' credibility 

determinations, absent a showing that the determinations were arbitrary, capricious, or contrary to the weight of the 

evidence, nl 1 In the case at hand, the key determination that the law [•IS] judge articulated was his belief that 

respondents saw green on the ECAM, and therefore believed that the previous wamings on the ECAM, including the 

"LAF DEGRADED" waming, were spurious. 

nil Administrator v. Nickl, NTSB Order No. EA-5287 at 6 (2007) (citing Administrator v. Kocsis. 4 NTSB 461, 

465 n.23 (1982); see also Administrator v. Smith, 5 NTSB 1560, 1563 (1986); Administrator v. Sanders, 4 NTSB 

1062 (1983)). 

Sections 91.7(a), 91.13(a), and 91.213(a) 

In reviewing the law judge's decision and considering respondent's appeal, we are mindful of the fact that the 

Administrator has the burden of proving that the aircraft was unairworthy by a preponderance of the evidence. nl2 In 

cases in which the Administrator alleges that an operator has violated 14 C.F.R. § 91.7(a), we have long held that the 

standard for airworthiness consists of two prongs: (1) whether the aircraft conforms to its type certificate and applicable 

Airworthiness Directives; [^19] and (2) whether the aircraft is in a condition for safe operation. nl3 With regard to the 

first prong of the test, we recognize that operators may check the aircraft for conformance with its type design and, 

where it does not conform, the MEL may nevertheless permit operation of the aircraft. nl4 We have also concluded, 

however, that when small, insignificant deviations are present, an aircraft may still substantially conform to its type 

design. nl5 With regard to whether an aircraft is in a condition for safe operation, we have recognized that, "[t]he term 

'airworthiness' is not synonymous with flyability." nl6 Moreover, in determining whether an aircraft is airworthy in 

accordance with the aforementioned standard, the Board considers whether the operator knew or should have known of 

any deviation in the aircraft's conformance with its type certificate. nl7 
Page 7 

2010NTSB LEXIS 31, ^19 

nl2 Administrator v. Van Der Horst, NTSB Order No. EA-5179 at 3 (2005); see also Administrator v. 

Schwandt, NTSB Order No. EA-5226 at 2 (2006) (it is the Board's role to determine, after reviewing the 

evidence the Administrator presents, whether the Administrator has met the requisite burden of proof). 

[•20] 

nl3 Administrator v. Doppes, 5 NTSB 50. 52 n.6 (1985) (citing 49 U.S.C. § 1423(c)); see also Administi:ator v. 

Anderson, NTSB Order No. EA-3976 at 2 (1993); Adminisb-ator v. Nielsen, NTSB Order No. EA-3755 at 4 

(1992); Administrator V. Copsey, 7 NTSB 1316, 1317(1991). 

nl4 See generally Anderson, supra note 13, at 4 n.S (stating that, "[t]he MEL contains items that may be 

inoperative without rendering the aircraft unairworthy"). 

nlS Administrator v. Frost, NTSB Order No. EA-4680 (1998); Administrator v. Calavaero. Inc.. 5 NTSB 1099. 

1101 (1986). 

nl6 Doppes, supra note 13, at 52 n.6. 

nl 7 See, e.g.. Administrator v. Yialamas, NTSB Order No. EA-5111 (2004); Administrator v. Bernstein, NTSB 

Order No. EA-4120 at 5 (1994); see also Administi^tor v. Easton, NTSB Order No. EA-4732 at 2 (1998) 

(acknowledging that significant risks exist when a pilot fails to confirm that an aircraft is airworthy following 

maintenance). 

In the case at hand, the Administrator did not [^21] introduce the type certificate data sheet into evidence, but did 

provide relevant excerpts from the MEL, which establish that the aircraft did not conform to the applicable 

airworthiness standards. In any event, given that both prongs of the airworthiness standard are required, the 

Administrator may prevail in airworthiness cases without introducing the type certificate, but by proving that the 

aircraft was not in a condition for safe operation. The evidence in this case establishes that the A320 was not performing 

in a safe manner. nl8 In addition, at the hearing, both respondents acknowledged that Airbus did not intend for the 

aircraft to fly with two pairs of spoilers in "M" mode, and that such a condition rendered the aircraft unairworthy. nl9 

Overall, the evidence in this record establishes that the aircraft did not fulfill both prongs of the airworthiness test. 

nlS See, e.g., Tr. at 223-26, 291,372; Exh. R-S at 2 (Respondent Walker's narrative description of flight in 

ASRP report, in which he stated, "I was the flying pilot and noticed several times during the flight the radder 

trim was going out of range making the autopilot have trouble holding the aircraft stable ... During approach I 

noticed the aircraft was sloppy and sluggish on the controls"). 

[•22] 

nl9 Tr. at 328 (discussion of MEL requirements), 378-79 (Respondent Walker's statements that respondents 

discovered that aircraft had been unairworthy during the flight); see also Exhs. A-I2 (relevant excerpts from 

MEL), R-7 (Airbus newsletter waming about spoiler issues). 

As discussed above, we have previously held that we will also consider whether a respondent knew that an aircraft 

was in an unairworthy condition when he or she operated the aircraft. In Administrator v. Thibert, NTSB Order No. 

EA-5306 (2007), we held that the Administrator failed to prove that the respondent knew or should have known that the 

Bell helicopter he operated had a broken lateral cyclic control servo mount bracket and a cork inserted in the engine oil 

quick drain in lieu of an approved part. We determined that the Administrator did not prove that the respondent knew or 

should have known about these discrepancies, because the person who performed maintenance on the aircraft had not 

informed the respondent of any discrepancies, and because many flight stadents who were mechanics accompanying the 

respondent performed [^23] pre-flight inspections and did not discover the discrepancies. In Thibert, we cited 
Pages 

2010NTSB LEXIS 31, ^23 

Yialamas, supra note 17, for the "knew or should have known" standard; in Yialamas, we determined that the 

respondent's reliance on maintenance certifications indicating that the aircraft was airworthy and safe to fly was 

reasonable and showed that the respondent did not know of the discrepancies at issue in that case. n20 

n20 Id. at 6-7 (citing Bemstein, supra note 17, at 5, and stating that, to prove a violation of § 91.7(a), "the 

Administrator must show that the airman operated an aircraft that he knew or reasonably should have known 

was not airworthy"). 

In his oral initial decision in this case, the law judge indicated that he believed the Administrator needed to prove 

that respondents had actaal knowledge of the fact that the spoilers were malfunctioning. Initial Decision at 523-24. 

However, our precedent establishes that we do not determine only whether an airman had actaal knowledge of a 

discrepancy, but that we also consider [^24] whether the airman should have known of the discrepancy. Even based on 

this standard, the Administrator has not provided sufficient evidence to compel us to find that respondents should have 

known that the spoilers were malfiinctioning. The Administrator's evidence consists of indications that the ECAM 

displayed several wamings prior to takeoff. However, respondents and Mr. Miller testified that resetting the SEC caused 

these wamings to clear. In addition, the Administrator presented no evidence to refute respondents' assertion that A320s 

are subject to spurious wamings, such as the "LAF DEGRADED" message that the ECAM displayed, following heavy 

maintenance. The Administrator also did not provide evidence to establish that the ECAM was fimctioning properly; 

given that the FDR data showed that respondents performed the flight control checks wherein they moved the sidestick 

to check the spoilers, and that some of the spoilers did not respond appropriately, the Administrator should have 

provided evidence to show conclusively that the ECAM displayed valid messages at all times. n21 While Inspector 

Stauffer explained how the ECAM works, and the photographs of the re-creation of the [^25] flight indicated that a 

fimctioning ECAM would display appropriate messages when the spoilers are malfunctioning, no one could establish 

that the ECAM functioned as intended on this particular flight. This lack of evidence, combined with the law judge's 

assessment that respondents' testimony that they never saw amber numbers on the ECAM prior to takeoff was credible, 

leads us to conclude that the Administrator did not show that respondents knew or should have known that the spoilers 

were in "M" mode prior to taking off. 

n21 The Administrator did not provide evidence to explain how respondents and Mr. Miller only saw the "LAF 

DEGRADED" waming. According to the evidence in the record, the ECAM should have displayed 

amber-colored numbers indicating exactly which spoilers were malfunctioning. Instead, however, all three 

witaesses in the cockpit consistently testified that the ECAM only displayed the "LAF DEGRADED" waming. 

The Administi:ator did not challenge respondents' testimony that this waming is known as an advisory message, 

rather than a message indicating that the aircraft is unairworthy. 

[•26] 

At several points in the appeal brief, the Administrator emphasizes that respondents could not have had a successful 

flight control check in accordance with the mandatory checklists, because it was impossible for the spoilers to have 

reacted in response to inputs from the cockpit. The Administrator's evidence on this issue is persuasive. See, e.g., Tr. at 

56-57,96,103-104; Exhs. A-2, A-3. However, the Administrator has not charged respondents with violating any 

regulation that requires adherence to such checklists. Instead, the Administrator charged respondents with operating an 

aircraft while it was in an unairworthy condition, and while it had a mechanical, electrical or stractaral problem. In this 

case, the Administrator failed to establish a nexus between the checklist requirements and the regulations charged. 

Section 91.7(b) 
Page 9 

2010 NTSB LEXIS 31, ^26 

With regard to the Administrator's § 91.7(b) charge against Respondent Surratt, we agree with the law judge's 

determination that Respondent Surratt, as PIC on the flight at issue, had the discretion to continue with the flight. Under 

the circumstances of this flight. Respondent Surratt's decision to continue with the flight was not unreasonable, in light 

[•27] of the fact that it behooved him to land the aircraft with less fuel than the amount the aircraft carried only 20 

minutes into the flight. Moreover, the Administrator did not introduce evidence to show that the QRH or any other 

records functioned to prohibit continuation of the flight. We also note that it would be unreasonable to consider the 

MEL as mandatory during the flight, and the Administrator has provided no authority establishing otherwise. 

ACCORDINGLY, IT IS ORDERED THAT: 

1. Respondents' appeal is dismissed; 

2. The Administrator's appeal is denied; and 

3. The law judge's decision, reversing and dismissing the Administrator's orders of suspension, is affirmed. 

HERSMAN, Chairman, HART, Vice Chairman, and SUMWALT, Member of the Board, concurred in the above 

opinion and order. 

JUDGE FOWLER SE-1S563 

200 Chestaut Street 

Courtroom 300 

Philadelphia, Pennsylvania 

Wednesday, 

August 12,2009 

The above-entitled matter came on for hearing, pursuant to notice, at 10:00 a.m. 

BEFORE: WILLL\M E. FOWLER, JR., Chief Administrative Law Judge 

APPEARANCES: 

On behalf of the Administrator: 

RUSSELL CHRISTENSEN, ESQ. 

Federal Aviation Administration 

1701 Columbia Avenue 

College Park, Georgia 30037 [^28] 

On behalf of the Respondents: 

JASON DICKSTEIN, ESQ. 

Washington Aviation Group, P.C. 

and the Law Office of Jason A. Dickstein 
Page 10 

2010 NTSB LEXIS 31,^28 

21233 Wisconsin Avenue, N.W. 

Suite 503 

Washington, D.C. 20007 

202-628-6776 

JESSICA STUBBS, ESQ. 

Washington Aviation Group, P.C. 

and the Law Office of Jason A. Dickstein 

21233 Wisconsin Avenue, N.W. 

Suite 503 

Washington, D.C. 20007 

202-628-8947 

ORAL INITIAL DECISION 

This has been a proceeding before the National Transportation Safety Board held pursuant to the provision of the 

Federal Aviation Act of 1958 as that Act was subsequently amended on the appeals of Tony Scot Surratt and Frank 

William Walker from Orders of Suspension dated April 8, 2009, issued by the Regional Counsel, Southem Region of 

the Federal Aviation Administration, which purports to suspend Respondent Surratt's airline transport pilot certificate 

number (omitted) for a period of 180 days, and also Respondent Walker's airline transport pilot certificate number 

(omitted) for a period of 180 days. 

This has been a consolidated proceeding on the appeals of Respondents Surratt and Walker. 

The Administrator's Orders of Suspension as duly promulgated, pursuant to the National Transportation Safety 

[•29] Board's Rules of Practice in Air Safety Proceedings, as I mentioned earlier, was issued by the Regional Counsel 

of the Southem Region of the Federal Aviation Administration. 

This matter has been heard before this United States Administrative Law Judge and is provided by the Board's 

Rules of Practice, specifically Section 821.42 of those rales, while it is not mandatory, according to that section of the 

rales, that as the Judge in this proceeding I issue an Oral Initial Decision. I'm going to do that at this time. 

Following notice to the parties, this matter came on for trial on August 1 Ith and 12th in Philadelphia, Pennsylvania. 

The Complainant in this proceeding was very ably represented by Counselor Christensen, Esquire, of the Regional 

Counsel's Office, Southem Region of the Federal Aviation Administration. The Respondents were represented by 

Counselors Dickstein and Stabbs, Esquire, and both have done a very admirable job, I might add. 

Both parties have been afforded the opportanity to offer evidence, to call, examine, and cross-examine witaesses. In 

addition, the parties were afforded the opportunity to make final argument in support of their respective positions. 

I have reviewed [^30] the testimony and the documentary exhibits adduced by counsel. The Administrator has had 

21 Exhibits. The Respondent has had 11 Exhibits. The Administrator has had the testimony of four witaesses. The 

Respondent has had the testimony of three witaesses. Two of those witaesses of the Respondent were the two 

Respondents, themselves. Respondent Surratt and Respondent Walker. 
Page 11 

2010NTSBLEXIS31,^30 

I have reviewed the totality of the testimony and the documentary exhibits, and as you know the burden of proof in 

a proceeding of this type is on the Administrator. 

The Administrator has set forth two Orders of Suspension here with 21 specific paragraphs set in the Orders against 

Captain Tony Scot Sxuratt, and against Captain Frank William Walker there were 12 paragraphs. 

I'm going to try to be as brief and as concise as I can. 

This case in my humble estimation rises or falls on what the two Respondents knew, what knowledge they 

possessed prior to takeoff on May 17th, 2008, from Miami Intemational Airport. 

We have the testimony of four witaesses on behalf of the Administrator, Witaess Laurence Johnson, Principal 

Operations Inspector; Witaess Philip Stauffer is also a Principal Operations Inspector, Witaess Thomas [^31] W. 

Welsh, who is an Inspector at USA3000 Airlines, the company we're dealing with in this proceeding and witaess Frank 

Miller. All four of these gentlemen are exceedingly experienced. 

Inspector Stauffer was declared to be an expert, particularly in maintenance, maintenance engineering. And to make 

a long story short, the witaesses of the Administrator all testified validly and substantiated many of the numbered 

paragraphs set forth in both Orders of Suspension against Respondent Surratt and Respondent Walker. 

Respondent had three witaesses. Respondent Surratt, Respondent Walker, and Witaess Paul O. Dow, Jr., who was 

qualified as an expert. Witaess Dow has 4,300 hours in the A320 and has 11,000 hours as an airline transport 

certificated pilot. 

I have reviewed the testimony in this case. The two Respondents have testified and one of the Administrator's 

witaesses, Mr. Frank Miller, has testified that prior to takeoff, even though the Respondents in this aircraft knew there 

were spoiler difficulties, spoilers 3 and 5 were, as counsel for the Administrator has ably stated, locked out. 

Respondents and other members present in the aircraft including Witaess Miller who has testified on behalf [^32] 

of the Administrator, that computer buttons were reset and that the ECAM panel prior to takeoff was green. The pilots. 

Respondent Walker was the flying pilot, Respondent Surratt was tending to the other duties of a First Officer. 

The evidence here in my determination is persuasive, logical, and compelling that the ECAM panel prior to takeoff 

or just before takeoff was green or clear, however you want to deem it when this flight took off fh)m Miami 

Intemational Airport. Some 10,15,20 minutes later, messages came on the ECAM of the spoiler problems. 

The flying pilot, or I should say pilots, conversed about this problem, referred to the QRH, Quick Reference 

Handbook, which is the National Operation Manual reference book and decided since they had no prior knowledge 

before they took off with these spoiler difficulties; that even since they then had knowledge of the spoiler difficulties, 

that they would proceed with their flight, as they did, approximately two hours or more before they attempted their first 

landing, which had to be aborted because as you have heard during the testimony in this proceeding, the left wing fence 

as the testimony has stated, as opposed to the Administrator's [^33] Order which says the left wingtip, scraped the 

runway. So, the first attempt at landing was aborted and there was a second uneventful landing. 

I have heard a number of these cases, not similar to this one, but my point in raising this is there was no accident, 

no damage, no injuries, no fatalities, and that to me is always a bit refreshing to have a case like this because so many 

times they are just the opposite. 

The burden of proof, as I stated earlier, is on the Administrator to prove by a fair and reasonable preponderance of 

the probative, reliable, and substantial evidence, the charges and allegations as set forth in these Orders of Suspension. 

It is my determination the Administrator's evidence as to what the Respondents knew prior to takeoff, the 
Page 12 

2010 NTSB LEXIS 31,^33 

Administrator's evidence is lacking based on the totality of what we've had during the course of this two day 

proceeding. 

We've had the testimony of both Respondents, as well as the last witaess of the Administrator, Mr. Frederick 

Miller, who is the Director of Maintenance for US A3 000 Airlines, who concurred with the two Respondents' testimony 

that immediately prior to takeoff the ECAM panel was clear, if not green. There was some testimony [^34] that it was 

green. And thereby and thereupon the flight took off. 

Administrator's witaesses have testified to the opposite result conceming the ECAM panel prior to takeoff and 

notice to the pilots, but I don't believe, and it is my determination that the Administrator's case is persuasive and 

compelling enough to rebut the total testimony adduced on the Respondents side of the case. 

We can look at this case, I believe in another way. Both Respondents are airline transport rated certificated pilots 

who are held to the highest degree of care, judgment, and responsibihty. Now, the evidence is on the Respondents' side, 

I believe, in this case that the Respondents did not know when they took off the fiill sitaation of the spoilers. Three 

witaesses, as I mentioned, have testified the ECAM panel was clear, indicated green, and they took off. 

Now, the question after that comes down to what did Respondents Surratt and Walker do when they got the 

message during the flight some 20,25 minutes later about the inoperable spoilers. Respondent Surratt is the 

Pilot-in-Command of this flight. Respondent Walker was the flying pilot. As Pilot-in-Command, Captain Surratt within 

the realm of his authority [^35] as Pilot-in-Command, continued the flight as opposed to the contention of the Federal 

Aviation Administration, that when they were afforded this message during the flight about the spoiler situation that 

they immediately end and abort the flight. 

Administrator's A-7, which is a letter January 11,2008, to Inspector Laurence Johnson issued by Joseph Guhin, 

Director of Safety and Regulatory Compliance for USA3000 Airlines, and I will read a certain portion of that letter. The 

fourth paragraph on the first page of this Exhibit A-7 said during the flight control check, during the taxi checkUst the 

crew noted there was an ECAM caution of LAF degrader. It was cleared by resetting the spoiler elevated computer SEC 

push buttons. According to both Captain Surratt and Joe Miller, this caution is not uncommon, and was quickly cleared. 

The aircraft had a clean upper ECAM page prior to the uneventful takeoff. 

While airbome, during routine page call-ups the ECAM panel displayed symmetrical spoiler 3, 5 Left R spoiler 

amber indications. During the flight a pilot left the cockpit and retumed noting two spoilers on the left wing were 

floating. 

A USA3000 Airline Inspector's employee took some pictares [^36] of those spoilers, noted that the radder trim 

going out of limits, and Captain Walker disengaged the autopilot and manually trimmed the aircraft. 

The paragraph goes on to say about somewhat difficulty there was in landing the aircraft and with the scrape of the 

ranway by the left wing fence. 

As I mentioned, the totality of the seven witaesses that have testified in this proceeding, among the four, one was 

designated an expert. Inspector Johnson, and there was one expert witaess, Paul O. Dow, on behalf of the Respondent. 

You may recall Witaess Dow, who was present during the course of this proceeding, said that he concurred 

wholeheartedly with the actions of Respondents Surratt and Walker and his testimony also encompassed the sitaation 

that has often occurred on a maintenance acceptance test flight which has the aircraft involved, which has been laid up 

for quite a while, that it is not uncommon for the things that occur in the flight we're concemed with here that did occur, 

and as both the Respondents and Witaess Miller testified, this caution as they exercised by resetting the computer 

buttons which cleared the ECAM panel and allowed them to takeoff in an uneventful takeoff with [^37] no problems in 

their mind. And as they have both testified to, both Respondents were not cognizant of a serious spoiler problem until 

during the flight, they were later notified and they made their decisions, particularly Respondent Surratt as 
Page 13 

2010 NTSB LEXIS 31,^37 

Pilot-in-Command, to continue the flight, which they did. And other than the wing fence scraping the runway on the 

second landing attempt, the landing was uneventfiil and as I said, fortanately, this was merely an incident and not an 

accident. 

So that, ladies and gentiemen, as I said I thought the Respondents' case successfiilly rebutted the Administrator's 

case. Much has been made of the utilization or non-utilization of the minimum equipment list prior to takeoff. I think 

the Respondents successfully were persuasive and compelling in their evidence that the minimum equipment list was 

not applicable or apropos since the ECAM panel was cleared and the Respondents took off accordingly. 

So that, ladies and gentlemen, I'm sure you get the drift of my decision here now which to use a colloquialism. 

Respondents have carried the day. And I will make my specific following Findings of Fact and Conclusions of Law 

accordingly. 

Taking up first Captain Tony [^38] Scot Surratt, his Order of Suspension. 

1) Respondent Surratt admits and it is found that he was and is the holder of airline transport pilot certificate 

number (omitted). 

2) The Respondent admits and it is found that all times relevant herein he was employed as a pilot for Brendan 

Airways, LLC. 

The remaining Paragraphs 3,4, 5, 6, and 7,1 will not spell those out because the Respondent has admitted all of 

those allegations as set forth in Paragraphs 3,4, 5,6, and 7. And I will find and admit accordingly where those 

numbered paragraphs are concemed. 

8) It is found that the amber LAF degraded message on the aircraft's ECAM panel comes on when there is a failure 

of one of the aircrafts spoiler servojacks. 

9) It is found that during the flight but prior to takeoff the ECAM panel indicated that the following wing roll 

spoilers were not operational and/or locked out. It is my determination that designated Paragraphs C and D dealing with 

the right wing spoilers number 3 and 5 were found accordingly. 

10) It is found that during the flight but prior to takeoff Respondent Surratt was not aware that the aircraft's ECAM 

indicated that the following wing roll spoilers were not operational [^39] and were blocked out, but that the right wing 

spoiler number 3 and right wing spoiler number 5 were indicated accordingly. It is my determination that appropriate 

action was taken to clear the ECAM panel and the takeoff quickly followed thereafter. 

11) It is found that pursuant to the aircraft's minimum equipment list, the aircraft cannot be dispatched when two or 

more spoilers on either wing are in an inoperable condition. But based on the totality of the evidence and the facts and 

circumstances we've had adduced during the course of this proceeding, the minimum equipment list immediately prior 

to takeoff was not operable and should not have been invoked at the time prior to takeoff, and was not invoked. 

12) The Respondents admit and it is found that notwithstanding the above, during the flight the Respondent Surratt 

operated the aircraft during the takeoff with no knowledge of the following inoperative instraments: C and D of 

Paragraph 12, which is the right wing roll spoiler number 3, and D, the right wing roll spoiler number 5. 

13) It is found that during the flight and after 20 minutes after takeoff, the ECAM panel once again indicated that 

the following wing spoilers were not [^40] operational and/or were locked out: C and D as set forth in Paragraph 13 of 

that Order. 

14) It is found that during the flight the flying pilot, Frank William Walker, disconnected the autopilot because the 

radder trim was not operating properly and was out of range. 
Page 14 

2010 NTSB LEXIS 31, ^40 

15) It is found and the Respondent admits that during the flight Respondent was informed that two flights [sic] on 

the left wing were floating by a person who had visually inspected the left wing while on board the aircraft. 

16) It is found that during the flight when Respondent first attempted to land the aircraft at Miami Intemational 

Airport, the aircraft's left wing fence contacted the ranway causing damage to the left wing fence. 

17) The Respondent admits and it is foimd that during the above referenced inoperable ring roll spoilers during the 

flight your first landing attempt was aborted. 

18) During the flight it is found tiiat the Respondents operated the aircraft which then was in an imairworthy 

condition but the Respondents had no notice until that time that the aircraft was in an unairworthy condition. 

19) It is found that diuing the flight the Respondent Surratt failed to discontinue the flight after the unairworthy 

[•41] mechanical, electrical, or stractural condition occurred with reference to the condition of the spoilers. 

20) It is found that during the flight the Respondent did not operate the aircraft in a careless maimer so as to 

endanger the life or property of another. 

21) It is found by reasons of the foregoing, the Respondent did not violate the following aviation regulations and 

I'm incorporating by reference as set forth in Paragraphs A, B, C, and D of Paragraph 21 of the aforesaid Order of 

Suspension as it was based on the totality of the evidence, coupled with the documentary exhibits, that there was a 

non-violation of Section 91.23(a), Section 91.213(a), and Section 91.7(a), and Section 91.7(b) of the aforesaid Federal 

Aviation Regulations. 

22) This Judge finds that safety in air commerce or air transportation and the public interest does not require the 

affirmation of the Administrator's Order of Suspension as to Captain Tony Scott Surratt, dated April 8th, 2009, because 

of the previously alluded to non-violations of the four PARS sections mentioned earlier. 

ORDER 

IT IS ORDERED AND ADJUDGED THAT the Administrator's Order of Suspension as to Captain Tony Scot 

Surratt, dated April 8th, [^42] 2009, be, and the same, hereby is dismissed and reversed. 

This order is issued by William E. Fowler, Jr., a United States Administrative Law Judge. 

ADMINISTRATIVE LAW JUDGE FOWLER: As to Captain Frank William Walker I will now proceed to make 

the following specific Findings of Fact and Conclusions of Law. 

1) That Respondent Walker admits Paragraphs 1,2, 3,4,5,6, and 7, and I incorporate those admissions of the 

Respondent Walker by reference as those numbered paragraphs 1 through 7, pertaining to the Administrator's Order of 

Suspension are set forth regarding Respondent Walker. 

8) It is found that the amber LAF degraded message on the aircraft's ECAM panel came on as it did when there was 

a failure of one of the aircraft spoiler servo jacks. 

9) During the flight but prior to takeoff it is foimd that the ECAM panel indicated that it was clear and green even 

though the right wing spoiler number 3 and right wing spoiler number 5 had been locked out and both Respondents as 

they have testified, the ECAM panel was subsequently cleared with the aforementioned four green indicators and the 

takeoff proceeded. 

10) It is found that during the flight but prior to takeoff. Respondent Walker [^43] was not aware that the ECAM 

panel had indicated that the roll spoilers were not operational and/or were locked out because computers were reset 

clearing the aforesaid ECAM panel enabling the Respondents to takeoff with apparentiy the spoilers problem not being 
Page 15 

2010NTSB LEXIS 31,^43 

problematical at that time. 

11) It is found that pursuant to the aircraft's minimum equipment list which is acknowledged by its pilots that the 

aircraft cannot be dispatched when two or more spoilers on either wing are in an inoperable condition, the Respondents, 

both Surratt and Walker, were not knowledgeable because the ECAM panel stated clearance or it was green for them to 

make the takeoff as they did. 

12) The Respondent admits notwithstanding the above, that during the flight Respondent Walker operated the 

aircraft during takeoff and thereafter with the following inoperative instraments and I'm incorporating by reference 

under Paragraph 12, Paragraph C and D right wing roller and the right wing roll spoilers number 3 and 5. 

13) It is found that during the flight and within 20 minutes after takeoff the ECAM panel once again indicated that 

the following right wing spoilers were not operational and/or were locked out ~ right [^44] wing spoiler number 3 and 

right wing spoiler number 5. As the evidence would indicate, this is the first knowledge that both Respondents had 

where the ECAM panel were concemed that they had any knowledge of the spoiler problem. 

14) It is found that during the flight when Respondents first attempted to land the aircraft at Miami Airport, the 

aircraft's left fence connected with the ranway causing damage to the left wing fence. 

15) It is found that due to the above referenced inoperable wingtip spoilers during the flight your first landing 

attempt was aborted. 

16) The Respondent operated the aircraft in an unairworthy condition, but had no knowledge at the time when it 

first became unairworthy that it was unairworthy. 

17) During the flight the Respondent did not operate the aircraft in a careless manner so as to potentially endanger 

the life or property of another. 

By reason of the foregoing, there was a non-violation of the Federal Aviation Regulations and I'm incorporating by 

reference those sections without spelling them out. Section 91.13(a), Section 91.213(a), and Section 91.7(a) as there was 

a non-violation of these sections by Respondent Walker. 

18) This Judge finds that safety [^45] in air commerce or air transportation and the public interest does not require 

the affirmation of the Administrator's Order of Suspension dated April Sth, 2009, as it applies to Respondent Walker 

due to the non-violation by Respondent Walker on the aforesaid mentioned regulations alluded to that were not violated 

by Respondent Walker based on the totality of the evidence, coupled with the documentary exhibits as afforded during 

the course of this proceeding. 

ORDER 

IT IS ORDERED AND DECREED THAT tiie Administrator's Order of Suspension as to Captain Frank William 

Walker is hereby reversed and dismissed because of the non-violations of the aforementioned Federal Aviation 

Regulations. 

This Order is issued by William E. Fowler, Jr., United States Administrative Law Judge. 

EDITED ON September 2,2009 

WILLIAM E. FOWLER, JR. 

Chief Administrative Law Judge 

Legal Topics: 
Page 16 

2010NTSB LEXIS 31,^45 

For related research and practice materials, see the following legal topics: 

Transportation Law Air TransportationCertificatesAirworthiness CertificatesTransportation Law Air TransportationU.S. 

National Transportation Safety BoardProceduresTransportation LawAir TransportationU.S. National Transportation 

Safety BoardReports 
APPENDIX E: NTSB's Decision Affirming Babbitt v. Surratt (on 

reconsideration) 

APPENDIX E (NTSB's Reconsideration Decision in Washington Aviation Group, PC and the 

Babbitt v. Surratt) Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
Pagel 

0 LexisNexJs' 

1 of 3 DOCUMENTS 

J. RANDOLPH BABBITT, Administiator, Federal Aviation Administi-ation, 

Complainant, v. TONY SCOT SURRATT and FRANK WILLL\M WALKER, 

Respondents 

NUMBER: Order EA-5527; 

Dockets SE-18562 and SE-18563 

National Transportation Safety Board 

2010 NTSB LEXIS 56 

DATE: June 25,2010, 

Adopted 

ACTION: [•I] 

ORDER DENYING RECONSIDERATION 

ISSUEDBY: National Transportation Safety Board 

SERVED: June 28, 2010 

The Administrator seeks reconsideration of our opinion and order in this case, NTSB Order No. EA-5514, served 

March 24,2010. In that decision, we affirmed the law judge's order, in which he granted respondents' appeal. The law 

judge determined that the Administrator failed to prove both that respondents operated an Airbus A320 while it was in 

an unairworthy condition, nl and that Respondent Surratt violated 14 C.F.R. § 91.7(b) when, as pilot-in-command 

(PIC), he did not discontinue the flight after leaming that two sets of the aircraft's spoilers were "floating." 

nl The Administrator charged both respondents with violating 14 C.F.R. §§ 91.7(a), which prohibits 

operation of a civil aircraft that is not in an airworthy condition; 91.13(a), which prohibits careless or reckless 

operations so as to endanger the life or property of another; and 91.213(a), which states that, except as otherwise 

provided, no person may take off an aircraft with inoperative instraments or equipment installed without 

meeting the requirements of § 91.213. 

[•2] 

In particular, the law judge determined, and we affirmed, that the Administrator did not adequately rebut the 

testimony of both respondents and Joe Miller, a mechanic in the cockpit with respondents, that they believed the 

Electronic Centralized Monitor (ECAM) in the cockpit only displayed a LAF DEGRADED message after respondents 

and Mr. Miller reset the spoiler elevator computers (SEC). We determined that the LAF DEGRADED message did not 

fimction to advise respondents that two sets of spoilers had been left in "maintenance" (or "manual") mode prior to the 
Page 2 

2010NTSB LEXIS 56, ^2 

flight. n2 Therefore, we concluded that the Administrator had not proved that respondents knew or should have known 

that the aircraft was in an unairworthy condition prior to taking off. 

n2 See NTSB Order No. EA-5514 at 9 n.6, and surrounding text. 

We also rejected the Administrator's argument that Respondent Surratt should have landed the aircraft as soon as he 

leamed that two sets of spoilers were "floating." Because the flight was a maintenance acceptance flight, [^3] we found 

reasonable respondents' arguments that there were benefits to continuing the flight, such as identifying other potential 

maintenance issues and buming off fuel. We based this determination largely on our reading of the definition of PIC in 

14 C.F.R. § 1.1, n3 finding that the PIC has significant discretion to choose whether to continue a flight when faced 

with circumstances of this nature. 

n3 Titie 14 C.F.R. § 1.1 defines "pilot-in-command" as a person who, "(1) Has final authority and 

responsibility for the operation and safety of the flight; (2) Has been designated as pilot in command before or 

during the flight; and (3) Holds the appropriate category, class, and type rating, if appropriate, for the conduct of 

the flight." See generally Administrator v. Jeffreys. 4 NTSB 681. 682 (1982) (stating that a PIC is the pilot who 

possesses ultimate decisional authority regarding the flight). 

The Administrator now petitions us to reconsider our original decision, on several bases. The Administrator [^4] 

argues that our "factaal findings" in the original opinion are inconsistent with the evidence in the record, particularly 

with regard to our assessment that the evidence indicated that the ECAM ultimately displayed only a LAF DEGRADED 

waming and that the LAF DEGRADED waming did not clearly indicate a problem with the spoilers. The Administrator 

fiirther asserts that respondents' failure to complete a successftil flight control check demonstrated their feilure to act 

reasonably and pradently, and that the Airbus newsletter that came into evidence, which concems ECAM wamings, 

fiirther indicated that respondents should have successfully completed a flight control check prior to taking off. The 

Administrator also contends that we erred in finding that the Administrator should have "conclusively" established that 

the ECAM was functioning properly prior to and during the flight, and that we erred in determining that Respondent 

Surratt had the discretion to continue with the flight. Respondents oppose the Administrator's arguments, and urge us to 

reject the petition. 

Section 821.S0(c) of our Rules of Practice requires that petitions for reconsideration "state briefly and specifically 

the [•S] matters of record alleged to have been erroneously decided, and the ground or grounds relied upon." 

Furthermore, § 821.50(d) provides that the Board will not consider, and will summarily dismiss, repetitious petitions for 

reconsideration. The arguments that the Administrator raises in the petition at issue here are not based on new matter, 

but consist of assertions that our original decision contained incorrect factaal and legal conclusions. Although the 

petition appears somewhat repetitious of the arguments the Administrator made on appeal, we will address the 

assertions, in the interest of ensuring that our decision on this reconsideration request is clear. 

We first note that the central issue in this case revolved around what the ECAM displayed prior to takeoff. The 

Administrator's petition states that respondents' and Mr. Miller's testimony was contradictory, because they did not 

consistentiy testify that the ECAM displayed only the LAF DEGRADED message immediately prior to flight. In 

support of this argument, the Administrator cites several portions of the record. Those citations, however, refer to 

testimony conceming various wamings that occurred when Respondent Walker and [^6] Mr. Miller reset the SEC. The 

testimony indicated that, when re-booting the SEC, certain wamings would flash and then clear. All wamings cleared 

except the LAF DEGRADED waming, which respondents and Mr. Miller determined to be spurious, given that the 

aircraft had recently undergone heavy maintenance. As we stated in our original opinion, both respondents and Mr. 

Miller testified that the ECAM displayed green messages after they reset the SEC, otiier than tiie LAF DEGRADED 
Page 3 

2010 NTSB LEXIS 56, ^6 

message, indicating to them that the aircraft was in an airworthy condition. The Administrator, on the other hand, argues 

that respondents should have been aware of a mechanical problem with the aircraft because of the cleared wamings on 

die ECAM and tiie LAF DEGRADED message. 

As we discussed in our original opinion, the law judge determined that respondents' and Mr. Miller's testimony 

conceming the green messages on the ECAM was credible. NTSB Order No. EA-5514 at 15. The Administrator did not 

convince us that this determination was arbitrary, capricious, or contrary to the weight of the evidence. Therefore, we 

deferred to the law judge's determination that respondents and Mr. Miller observed green messages appear [^7] on the 

ECAM prior to takeoff. The Administrator now appears to assert as well that respondents should not have taken off with 

the LAF DEGRADED message displaying on the ECAM. However, the only evidence the Administrator presented at 

the hearing conceming the import of the LAF DEGRADED message was the opinion of FAA principal avionics 

inspector for general aviation repair stations, Philip Stauffer, who stated that the purpose of the ECAM is to display 

information conceming various flight controls. n4 Inspector Stauffer did not state that the LAF DEGRADED message 

meant that spoilers were locked down or inoperative. On the contrary, both respondents and Mr. Miller, who is the 

director of maintenance for respondents' employer, USA3000, testified that receiving a spurious LAF DEGRADED 

message was not uncommon after an aircraft had undergone heavy maintenance. As we stated in the original opinion. 

Respondent Surratt also testified that Airbus originally intended the LAF DEGRADED message to assist in easing 

tarbulence, but that it had never successfully functioned to do so. We do not believe that we erred in determining that 

the evidence was insufficient to show that the LAF DEGRADED message [•S] informed respondents the aircraft was 

in an unairworthy condition. 

n4 Inspector Stauffer's testimony conceming the ECAM included the following: 

Q. What is tiie purpose of the ECAM? 

A. It's got two purposes. It has two displays there. The upper one is primarily the one that 

displays engine information to the upper, the central two displays. It would be that one. The 

bottom one is used to call up different system pages, either manually or automatically by the 

aircraft when faults occur. 

Q. Now, when you say system pages, what do you mean by system pages? 

A. The lower screen can display any number of pages listed from hydraulics, wheels, doors, 

oxygen pressure. In this case what's relevant for us is the flight control page which is 

automatically called when you have a fault relevant to it or when the flight crew does their flight 

control check. 

ADMINISTRATIVE LAW JUDGE FOWLER: This would include the spoilers, correct? 

THE WITNESS: That would display tiie spoilers, yes. ADMINISTRATIVE LAW JUDGE 

FOWLER: All right. 

THE WITNESS: That would display all the flight controls. Your Honor. 

Tr. at 88-89. 

[•9] 

The Administrator's petition also includes the argument that we have inconsistently applied our case law 

conceming 14 C.F.R. § 91.7(a). In this regard, as we stated in the original opinion, we have long held that the standard 

for airworthiness consists of two prongs: (1) whether the aircraft conforms to its type certificate and applicable 

Airworthiness Directives; and (2) whether the aircraft is in a condition for safe operation. In determining whether an 

aircraft is airworthy in accordance with the aforementioned standard, we will consider whether the operator knew or 

should have known of any deviation in the aircraft's conformance with its type certificate. See cases cited at NTSB 

Order No. EA-5514 at 17 n.l7. 

In tills case, we affirmed the law judge's conclusion that respondents did not know, nor should have known, tiiat tiie 

aircraft was in an unairworthy condition. The law judge found respondents' and Mr. Miller's testimony, that they all 
Page 4 

2010 NTSB LEXIS 56, ^9 

believed that the LAF DEGRADED message was an ordinary spurious message, to be credible. In addition, Mr. Miller, 

as the director of maintenance with many years experience conceming maintenance issues in an Airbus A320, was in 

the cockpit and [• 10] did not believe the LAF DEGRADED message was a cause for concem. Based on these facts, we 

agreed that respondents did not know that the aircraft was unairworthy, and we considered this knowledge element in 

reaching our conclusion that respondents did not violate § 91.7(a). 

The Administrator's reliance on Administrator v. Olsen, NTSB Order No. EA-3743 (1992), conceming the 

knowledge element is misplaced. In Olsen, the respondent was in the unique position of having been the pilot of the 

aircraft at issue as well as performing maintenance on the aircraft as its mechanic shortly before the flight at issue. With 

regard to the knowledge element, we stated as follows: 

We are not imposing a standard of strict liability when we hold that respondent's behavior is to be 

measured against what he personally knew or should have known about the aircraft, both as its pilot and 

as a mechanic who had recently been involved in its maintenance. Such a standard merely expects 

respondent to react reasonably and pradently to information of which he is or should have been aware 

(fixim whatever source). 

Id. at 5-6. The Administrator argues that respondents did not act reasonably and pradently because [• 11] they did not 

complete a successful flight check. However, respondents contend that Respondent Walker completed a flight check nS 

and that they believed that the aircraft was in an airworthy condition prior to taking off. The Administrator attempts to 

prove that respondents violated § 91.7(a) because they did not complete a flight control check subsequent to clearing the 

ECAM wamings, and therefore did not act reasonably and pradently. This argument is inconsequential, however, 

because the reasonable and pradent standard, as articulated in Olsen, is merely a consideration in the overall "knew or 

should have known" analysis. The Administrator's petition does not overcome our conclusion that respondents' 

testimony that they did not know, nor have reason to believe, that the spoilers were inoperative prior to takeoff was 

credible. As we stated in our original opinion, we have long held that we will consider whether a respondent knew or 

should have known of the unairworthy condition of an aircraft in determining whether he or she has violated § 91.7(a). 

The Olsen opinion did not change this standard, but instead explicitly rejected the application of a strict liability 

standard. 

nS On this issue, the record contains the following colloquy between Respondent Walker and his attorney: 

Q. Okay. Did you perform any flight control checks? 

A. Yes. 

Q. And did anything unusual occur during your flight control check? 

A. No. 

Tr. at 366. Respondent Walker then testified that Respondent Surratt completed a flight control check that 

indicated a problem with spoiler nos. 3 and 5, but that Respondent Surratt and Mr. Miller were able to clear the 

waming that displayed on the ECAM by resetting the SEC. Tr. at 366-67. 

[*12] 

The Administrator also argues that, in our opinion below, we imposed a burden that is impossible for the 

Administrator to fulfill when we stated that the Administrator failed to establish that the ECAM worked properly. We 

disagree with this assertion. The burden is on the Administrator to prove each element of each offense charged. In the 

case at hand, the Administrator was aware that respondents and Mr. Miller testified that they believed the aircraft was 

airworthy because the ECAM only displayed the LAF DEGRADED waming prior to takeoff, after they reset the SEC. 

In rejecting the Administrator's arguments on appeal, we indicated that the Administrator could have strengthened his 

case by establishing that the ECAM properly displayed messages. This lack of evidence was one of what we believed to 

be several shortcomings in the Administrator's case. We specifically reject the Administrator's notion that we are 

imposing an unreasonable burden on the Administrator to present evidence that the equipment in question operated 
Pages 

2010 NTSB LEXIS 56, ^12 

properly throughout the flight. In the context of this case, we believe evidence along such lines would have been 

necessary to rebut adequately the testimony of respondents [•IS] and Mr. Miller conceming what they observed on the 

ECAM. 

The Administrator's final argument, that Respondent Surratt did not have the discretion to continue with the flight, 

is also without merit. We stated in our original opinion that Respondent Surratt, as PIC, acted reasonably in continuing 

the flight, as he took advantage of the opportanity to land with less fuel, and he utilized the Quick Reference Handbook 

on the aircraft, which allows landing the aircraft with inoperative spoilers after applying a multiplication factor to 

calculate the necessary length of ranway. The Administrator provides no new evidence conceming this conclusion, but 

instead again simply argues that Respondent Surratt acted unreasonably. We disagreed with this contention in our 

original opinion, and we likewise reject it now. 

ACCORDINGLY, IT IS ORDERED THAT: 

The Administrator's petition for reconsideration is denied. 

HERSMAN, Chairman, HART, Vice Chairman, and SUMWALT, Member of the Board, concurred in the above 

order. 

Legal Topics: 

For related research and practice materials, see the following legal topics: 

Transportation LawAir TransportationCertificatesAirworthiness CertificatesTransportation LawAir 

TransportationChartersTransportation LawAir TransportationMaintenance & Safety 
APPENDIX F: Complainant's First Response to Respondent's First Set of 

Interrogatories. Requests for Production of Documents, and Requests for 

Admissions. Response to Interrogatories #1-13 (pages 1-4). 

APPENDIX F (FAA Responses to Interrogatories #1- Washington Aviation Group, PC and the 

13 (pages 1-4)) Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

QPY 

In the Matter of Brendan Airways, LLC 

FAA Docket No. CP09EA0007 

DMS No. FAA-FAA-2009-0032 

Chief Administrative Law Judge Yoder 

COIMPLAINANT'S FIRST RESPONSE TO RESPONDENT'S FIRST SET OF 

INTERROGATORIES. REQUESTS FOR PRODUCTION OF DOCUMENTS. AND 

REQUESTS FOR ADMISSIONS 

The Complainant reserves the right to supplement the following responses: 

RESPONSE TO INTERROGATORIES 

Interrogatory #1 

Allegation 4 of section II of the Complaint contends that the spoiler servo actuators were 

placed in the maintenance mode during maintenance. On what date and during what 

maintenance operation were the spoiler servo actuators placed in the maintenance mode? 

Response to Interrogatory #1 

The Complainant does not know the exact date of the maintenance at this time, however, 

it is clear that the spoiler servo actuators were placed in the maintenance mode prior to 

the flight. The Complainant does not know during what maintenance operation the 

spoiler servo actuators were placed in the maintenance mode, however, it appears that the 

maintenance was performed by AAR. Pursuant to 14 C.F.R. §121.363 Brendan Airways 

is responsible for this maintenance. 

Interrogatory #2 

Please identify all of the facts that you contend support Allegation 4 of section II of the 

Complaint. 

Response to Interrogatory #2 

Prior to the flight there were several indications in the cockpit suggesting that left and 

right wing roll spoilers 3 and 5 were not operational, during the flight these roll spoilers 

did not fimction, and after the flight it was determined through visual inspection that the 

spoiler servo actuators were placed in the maintenance mode. 

Interrogatory #3 

Allegation 7 of section II of the Complaint contends that USA3000 performed 

maintenance on the aircraft's left wing roll spoilers three and five. Please identify the 

maintenance performed on each of those left wing roll spoilers three and five (limited to 

only the mziintenance that is referenced by the Complaint), and state the date or dates on 

which this maintenance was performed. 
Response to Interrogatory #3 

See the Response to Interrogatory #1. 

Interrogatory #4 

Please identify all of the facts that you contend support Allegation 12 of section II of the 

Complaint. 

Response to Interrogatory #4 

The pilots witnessed the ECAM indicate this prior to takeoff, the ECAM was not 

malfunctioning during the flight, if the ECAM is functioning properly it will indicate that 

wing roll spoilers are not operational when they are in the maintenance mode, the spoiler 

servo actuators for the wing roll spoilers in question were in the maintenance mode 

during the flight. 

Interrogatory #5 

Please identify all of the facts that you contend support Allegation 13 of section II of the 

Complaint. 

Response to Interrogatory #5 

See the Response to Interrogatory #4. 

Interrogatory #6 

Please identify all of the facts that you contend support Allegation 19 of section II of the 

Complaint. 

Response to Interrogatory #6 

Left and right wing roll spoilers No. 3 and No. 5 were not operable during the flight and 

pursuant to the aircraft's MEL there is no circimistance in which the aircraft can be 

dispatched for flight when these spoilers are inoperable, and when the spoilers are left in 

the maintenance mode aerodynamic forces cause unwanted movement of the spoilers. 

Also the first landing attempt was aborted and the aircraft was damaged due to the 

inoperable wing roll spoilers. 

Interrogatory #7 

Please identify all of the facts that you contend support Allegation 20 of section II of the 

Complaint. 

Response to Interrogatory #7 

See the above and the Complaint. 

Interrogatory #8 

Is it the Administrator's contention that the flight was an operation that falls within the 

scope of Part 121? 

Response to Interrogatory #8 
Objection. Vague. 

Interrogatory #9 

If it is the Administrator's contention that the flight was an operation that falls within the 

scope of Part 121, then please identify all facts that support this contention and specify 

how that operation falls within the scope of Part 121. 

Response to Interrogatory #9 

Objection. Vague. 

Interrogatory #10 

Is it the Administrator's contention that the aircraft's left wing roll spoilers three and five 

were placed in the maintenance mode during maintenance performed by USA 3000. 

Response to Interrogatory #10 

Pursuant to 14 C.F.R. §121.363 it is the Administrator's contention that Brendan Airways 

is responsible for all maintenance performed on the aircraft. The Administrator does not 

know what individuals placed the aircraft's left wing roll spoilers three and five in the 

maintenance mode prior to the flight, however, it is the Administrator's contention that 

Brendan Airways is responsible for this maintenance. 

Interrogatory #11 

If it is the Administrator's contention that the aircraft's left wing roll spoilers three and 

five were placed in the maintenance mode during maintenance performed by USA3000, 

then please identify all facts that support this contention and specify which maintenance 

was being performed when these spoilers were placed in the maintenance mode. 

Response to Interrogatory #11 

See the Response to Interrogatories No. 1, 2, and 10. 

Interrogatory #12 

If it is the Administrator's contention that the aircraft's left wing roll spoilers three and 

five were placed in the maintenance mode during maintenance performed by US A3 000, 

then please identify all facts that support the contention that the maintenance identified in 

INTERROGATORY # 11 was performed by USA3000. 

Response to Interrogatory #12 

See the Response to Interrogatories No. 1, 2, and 10. 

Interrogatory #13 

If it is the Administrator's contention that any other maintenance operation was 

improperly performed on the aircraft-aside from the aircraft's left wing roll spoilers three 

and five being placed in (and/or left in) the maintenance mode-then please identify this 

other maintenance. 

Response to Interrogatory #13 
The Complainant's only contentions about improper mmntenance are foimd in the 

Complaint. 

Interrogatory #14 

The Respondent has asserted to the Administrator that the Respondent was not aware of 

the spoiler issue until the aircraft was in the air. Assuming only for the purpose of this 

interrogatory that the Respondent's assertion is correct, (a) does the FAA contend that the 

Respondent should have done anything differently upon discovery of the inoperable 

spoilers, and if so (b) what should he have done differently and (c) what is the objective 

standard upon which this contention of the Administrator is based. 

Response to Interrogatory #14 

Objection. This Interrogatory seeks information that would not lead to the admission of 

relevant or discoverable evidence. 

Interrogatory #15 

Please provide the identify and telephone number (business or personal) of each person 

the FAA intends to call as a witness in this matter. Plesise also provide a summary of the 

substance of the expected testimony of each person identified in response to this 

interrogatory. 

Response to Interrogatory #15 

The identity of any witnesses is a matter of trial strategy that has not yet been decided. 

The Complainant reserves the right to amend this answer as trial witnesses are identified. 

Interrogatory #16 

Please provide the identity and telephone number (business or personal) of each person 

the FAA believes has information or knowledge relevant to this matter. 

Response to Interrogatory #16 

Objection. Overbroad. Unduly burdensome. Further this Interrogatory requests 

information that would not lead to the discovery of relev£int or admissible evidence. 

Notwithstanding the objection all witnesses who testified in the case of Administrator v. 

Surratt and Walker would have knowledge relevant to this matter. The telephone number 

of Aviation Safety Inspectors Laurence Johnson, Constantine Karamargin, Ernie 

Scardecchio, and Philip Stauffer is 610-595-1500. 

Interrogatory #17 

Please identify and provide the telephone number for each expert witness the FAA may 

call to testify in this proceeding. For each expert witness identified, please state the 

subject matter upon which each is expected to testify, summarize the substance of such 

expected testimony (including, without limitation, identification of all facts, treatises, 

reports and records that form the basis for such opinion). 

Response to Interrogatory #17 
APPENDIX G: Complainant's Second Response to Respondent's First Set 

of Interrogatories. Requests for Production of Documents, and Requests 

for Admissions. Response to Interrogatory #18 and Request for 

Production #11. 

APPENDIX G (FAA Responses to Interrogatory # 18 Washington Aviation Group, PC and tiie 

and RFP 11) Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of Brendan Airways, LLC 

FAA Docket No. CP09EA0007 

DMS No. FAA-FAA-2009-0032 

Chief Administrative Law Judge Yoder 

COMPLAINANT'S SECOND RESPONSE TO RESPONDENT'S FIRST SET OF 

INTERROGATORIES. REQUESTS FOR PRODUCTION OF DOCUMENTS. AND 

REQUESTS FOR ADMISSIONS 

The Complainant reserves the right to supplement the following responses: 

RESPONSE TO REQUEST FOR ESfTERROGATORIES 

Interrogatory #18 

Please identify and documents and exhibits the FAA intends to introduce into evidence in 

the proceeding. 

Response to Interrogatory #18 

In addition to what was previously submitted please see the documents listed below: 

1. FAA NO Action Document for AAR Aircraft Services for the incident occurring 

5/17/08 

2. PTRS record from inspector LAB for EIR 2008SO190220 

3. PTRS record from inspector LXC for EIR 2008SO190220 
RESPONSE TO REQUEST FOR PRODUCTION OF DOCUMENTS 

Production Request #11 

Please provide the entirety of each EIR and all other investigative records associated with 

the investigation of AAR in relation to the incidents described in the Complaint. For 

your reference (but not to be construed as a limitation) one relevant FAA investigation 

file number may be 2008SO190220. 

Response to Production Request #11 

The attached documents (referenced above) make up the entire file of case number 

2008SO190220. 

Respectfully submitted, 

Alfi^d R. Johnson, Jr. 

Regionsil Counsel 

By: 

^ ^ .. ^/Vo 

David M. Cohen 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

Telephone: 718 553-3270 

Facsimile: (718)995-5699 
CERTIFICATE OF SERVICE 

I hereby certify that on this day copies of the foregoing Complainant's Second Response to 

Respondent's First Set Of Interrogatories, Requests For Production of Documents, and 

Requests For Admissions, were sent by Federal Express Mail addressed as follows: 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

(Original and One Copy) 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room El2-320 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

(FAX) 202-366-7536 

Jason Dickstein 

Washington Aviation Group, PC & Law Offices of Jason Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 

(FAX) 202-628-8948 

Date: SEP - 7 2010 V^: ; vJ^L^ 

y LisaHooks 

Paralegal Specialist 

Office of Acting Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 
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DWARNiWG NOTICE DLETTER OF CORRECTiOW ElNOACTtON 

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DENTIFICATION 

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OPCODE PHONE NO. 

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AIRCRAFT. ENGINE. PROPELLER. COMPONENT OR APPLIANCE INVOLVED 

tJAKE 

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ADDRESS 

CITY STATE ZIP CODE 

> ALLEGED VI0LATiQN(8) - < 

care MONTH DAT YEAR TJMElSUiOW WTB UCNTH D*Y YEAR RESIGN OlSCCVERED 

OCCURRED 5/17/08 KHCMN 5/19/08 so 

AT LOCATIMI MIAMI, FL 

REGUlATKmS 

SEUCVEDVOIATED 

AIRPORT DESIOmTOR 

MIA 

DESCRPTtON 

UST ^A - FOR MDACnCN CASES 

N/A 

CORfleCTVC ACTIOH - UAYBG CONTHIUCO OH RCtiiERSC 

NO ACTION 

MSPECTOR: 

BURNETT LINDA 8171 7/1/08 

USTNAt ^ RflST NAUE MlwpcrKK t INmAlS now DATE 

CEffir. CODE TYPE SUBTYFC CATEGORY SOURCE ACCtOeNT ACTION SANCnON 

oEBi: 

PTRS ACTMTY CODE 

2 83 0 2 iDHDEEQQa 

K 

PTRS NSraCTOR COOEI 

DEEIE QSEIL^ 

I^IHOT REVIEW DATE | AOUN . DATE 

\/m 7^ 

QR NUf.BCR 

0 0 0 B • 0 Q E Q E El ID 

^ Y ^ 
PROGRAM TRACKING AND REPORTING SUBSYSTEM DATA SHEET 

(Ond PTRS Record Required for Each Unit of Work as defined in the PPM) 

SECTK>Ni-Transmittal 

Inspector Name Code: LAB 

Record 10: SOt920082l072 

NPG: 

Start Dale: O5/IW20O8 

Oesignator XEAR 

Aircraft Reg ft 

FllgWft 

Activity Numtwr: 3733 

Status (POC): C 

Results (ACEFISTX): C 

Affiliated Designator. 

Loc/Departure Point 

Complaint ft 

Make-Model-Series: A-320-212 

Simulator/Oevice ID: 

Non-CertAcevityNameyCompany: REF SO 19200819264 

Airman Cert ft 

Examiner Cert #: 

Applicant Cert ft 

ReclnstructorCertft 

Passff=all: 

Tracking: 

Local Use: 

Activity Time: 

Triggers teUvily Number: 

FAR: 145 

Callup Date: 

OosedDate: 06/17/2008 

OTNA: 

Loc/Antval Polnt#: 

Occurrence ft 

l(v:identft 

EIR ft 200SSO190220 

Acddentft 

Name: 

Name; 

Name: 

Name: 

Exam Kind: 

Miscellaneous: 

Regional Use: 

Assessment: 0.0 

Repeat tVumben Geographic? Yes C 

8430-13* 

Numeric Misc: 

National Use: 

Travel Cost 

No S Foreign? Yes D No S 

SECTION 11 • Personnel (unlimited) 

Personnel Name Position Base Remarks (23 Ctiaracters) 

SECTION IH - Equipment (unlimited) 

Manufacturer Model Serial # Remarks (23 Characters) 

SECTION IV • COMMENT (unlimited) 

Primary 

Area 

E 

Key 

Wort 

802 

Ooiflioci 

Code 

P 

Comm«ni Taxi (unftntted length) 

RFP t>TR<s <!r^ig7nn«iQ7ft4 OF t x r 

INVr^STIGATION INCIDF.NT Wm i AAR WHERE Tl IfiY RETlJRNrsD TO .SERVtCP. A320 IKOM 

USA3000. AT LAST CHECK SPOILERS WERE IN OP POSITION. 05/15/07. 

DURING CHECKFUGHT ON 05/17/07 SPOILER WAS IN LOCKED POSmON. 

INVESnOATING TO DETERMINE WHERE THIS ADJUSTMENT IN THE SPOILER OCCURRED. 

WEEK AFTER INCIDENT (WEEK OF 5/19/2008) WENT TO /VAR TO TALK TO MGMT AND 

Dat«; Origlnalor OffioK 

Inspector Signature: Supervisor Initial*: 

FAA Forni 8000-36 (6-95) 
InspccVor Name Code; LAB Record ID: SO19200821072 Paec2 

Section IV - Comment (cont'd) 

•ReT 

Wort 

Opinion 

Code 

Primary Cornment Text 

Area 

302 INTERVIEW 6 TECHNICIANS WHO WERE WORKING ON THE SPOILERS OF THIS AIRCRAFT. 

DISCUSSED WORK ORDERS AND CHECKED TO SEE IS ANY DISCREPANCIES OCCURRED. 

FOUND AIRCRAFT WENT IN TO BE PAINTED AFTER MAINTENANCE THE AREA OF THE 

SPOILERS WOULD NOT BE WSTURBED FROM THE PAINTING. 

AFTER CHECKING MANY AAR WORK TASK CARDS, INTERVIEWING SEVERAL AAR 

TECHNICIANS WHO WORKED IN THE AREA OF THE SPOILERS OF THE AIRCRAFT AND 

WfTNESSED THE SPOILER CHECK, AND ATTENDING SEVERAL MEETINGS WITH AAR MGMT 

AND SUPERVISORS. THIS OFFICE HAS ISSUED /^ R A LETTER OF WARNING. THIS 

OFFICE CANNOT FIND WHO OR WHEN THE AIXEGED NON-COMPUANT MAINTENANCE 

OCCURRED. 

AGAIN, PMl CARMON A CHECKED WITH CHIEF INSPECTOR OF AAR AND SUPERVISORS TO 

SEE WHAT TASK CARDS. IF ANY WERE PRODUCED BY AAR BETWEEN 5/15 - 5/19/2008. 

THERE WERE NONE. 

AS THIS INVESTIGATION DID NOT PRODUCE EVIDENCE OF ANY WIUJNGDOING ON THE PART 

OF AAR MAINTENANCE. WE CANNOT INITIATE A CIVIL PENALTY VIOLATION. WILL 

INITIATE NO ACTION FOR A/\R TO ENSURE FUTURE INCIDENTS DO NOT OCCUR AFTER 

THE MAINTENANCE HAS BEEN PERI'ORMED. 

NO ACTION SNAAP ISSUED ON 7/01/2008. 
PROGRAM TRACKING AND REPORTING SUBSYSTEM DATASHEET 

(One PTRS Record Required for Each Unit of Work as defined In the PPM) 

SECTION 1-Transmittal 

Inspector Name Code: LXC 

Record 10: SOI9200819264 

NPG: 

Start Date: 05/19/2008 

Oesignator XE4R 

Aircraft Reg ft N26SAV 

Flight ft 

Activity Number 3733 

Status (POC): C 

Results (ACEFISTX): C 

Affiliated Designator 

Loc/Deparlure Point: MIA 

Complaint ft 

Make-Model-Series: A-320-212 

Simulalor/Devtee ID: 

Non-Cert Activity Name/Company: SO19200S2I072 

AimtanCertft 

Examiner Cert ft 

Applicant Cert«: 

Rec Instructor Cert ft 

Pass/Fail: 

Tracking; 

Local Use: 

Actrvtty Time: 

Triggers Activity Number 

FAR: 145 

Callup Date: 

CtosedOalo: 07/01/2008 

OTNA: 

Loc/Arrival Pointft 

Occurrence ft 

Incident ft 

EIR ft 2008SO190220 

Accident ft 

Name: 

Name: 

Name: 

Name; 

Exam Kind: 

Miscellaneous: 

Regional Use: 

Assessment: 0.0 

Repeat Number Geographic? Yes C 

8430-13 ft 

Numeric Misc.: 

National Use: OFFHOUR 

Travel Cost: 

No El Foreign? Yes D No S 

SECTION II • Personnel (unlimited) 

Personnel Name Position Base Remarks (23 Characters) 

SECTION HI • Equipment (unlimited) 

Manufacturer Model Serial # Ftemarks (23 Characters) 

SECTION «V - COMMENT (unlimited) 

Primary 

Area 

E 

Key 

Wort 

617 

Opirdon 

Code 

I 

Commanl Text (unlimiled lenglh) 

OS-m-flR STARTFn IMVPSTinATION OPCARniNf! At 1 FnFr> IMPROPPR MAINTPNAWrP IXV AAR 

A(RrRAFTSFRVirFS-MIAMtfAARinNN26^AV. 

05-20*8 - PREPARED AND SENT UTTTER OF INVE.ST10ATI0N TO AAR 

05-20-2008 TO 06-16-2008 - CONDUCTED INVESTIGATION REGARDING THE ALLEGED 

IMPROPER MAINTENANCE. COULD NOT PROVE THAT ANY AAR EMPLOYEE PERFORMED 1TIE 

IMPROPER POSITIONING OF THE LEFT WING SPOILERS 3 AND 5 TO THE MAINTENANCE 

Oats: OrfQinatar Office 

Inspector Signalufo; Supervisor Intlials: 

FAA Form 8000-36 (e-»S} 
Inspector Name Code; LXC Record ID: SO19200819264 Pace 2 

Section IV - Comment (cont'd) 

Opirtion 

Code 

Primary Key Comment Text 

Wort 

617 .MODE 

05-15-2008 - AN AlRCR/\nr ENGINES AND SYSTEMS OPERATION TEST WAS COMPLETED BY 

USA 300 PERSONNEL. SPOILERS OPERATIONAL TEST WAS COMPLETED WITH 

SATISFACTORY RESULT. 

FOR OTHER THAN A FEW MINOR CORRECTION ITEMS AND TOUCH PAINTING (NONE OF 

WHICH WAS PERFORMED NEAR THE LEFT WING SPOILERS NO 3 AND 5). NO OTHER 

MAINTENANCE WAS DOCUMENTED AS BEING PERFORMED BY AAR DURING 05-15 AND 

05-17-2008. 

ON OS-15-2008 -THE AIRCRAFT WAS PARKED AND RELEASED TO THE CUSTOMER. 

05-17-2008, Tl IE USA3000 FLIGHT CREW AND MAINTENANCE PERSONNEL DID A 

PREFLIGHT, (AS PART OF THE FLIGHT PREFUGHT CHECKLIST), THEY NOTED THE LEFT 

WING SPOILERS NO 3 AND 5 WERE INOPERATIVE AND THE RIGHT WING NO 3 AND 5 

SPOILERS LOCKED. KNOWING TIIE EXISTING MALFUNCTION, THE FLIGHT CREW ELECTED 

TO TAKE THE AIRCRAFT AND FLEW THE AIRCRAFT FOR OVER THREE HOURS. 

UPON LANDING AFTER FLYING FOR OVER THREE HOURS. AAR PERSONNEL INSPECTED THE 

LEFT WING SPOILERS AND DETERMINED THAT THE LEFT WINO NO 3 AND 5 SPOILERS 

WERE IN THE MAINTENANCE POSITION. THE INVESTIGATION DID NOT REVEALED WHEN, 

WHO. WHY OR HOW WERE THE SPOILERS POSITIONED TO THE MAINTENANCE MODE. 

DUE TO THE LACK OF DOCUMENTATION RBGARDING WHEN. WHO, Wl lY AND HOW WERE THE 

SPOILERS POSITIONED IN THE MAINTENANCE MODE. HT IS NOT POSSIBIJ- FOR THIS 

INSPECTOR TO BLAME ANYONE FOR THE IMPROPER POSITIONING OF THE SPOILERS. 

07-01-08 - A LETTER OF NO ACTION WAS ISSUED TO AAR AND THE CASE CLOSED.