U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

RECEIVED 

.APR 2 1 2014 

HEAriiNG DOCKET 

vs. 

Docket No. FAA-2012-0477 

FAA Case No. 2011GL030070 

LIBERTY FOUNDATION, 

Respondent. Judge Sullivan 

FAA'S CLARIFICATION AND OBJECTION TO FINDINGS OF FACT 

Pursuant to the Judge's Order Denying Summary Judgment and Declaring As Established 

Certain Undisputed Facts, dated April2,.2014, the FAA ~ereby files an objection to one of those 

determinations. Additionally, although the FAA does not request reconsideration as it has no 

impact on the decision on the FAA's summary judgment motion, the FAA writes to clarify a 

particular factual matter addressed in the Judge's Order. 

Objection to Finding of Fact 

In Finding of Fact #19, the Judge noted as undisputed that "Cost was not a factor in the 

Respondent's decision to keep the aluminum shells." In making that determination, the Judge 

cited to pages 30-31 of Exhibit B attached to Respondent's Response to the FAA's Motion for 

Summary Judgment, that exhibit being the deposition of Mr. Fowler during discovery. 

However, whether cost was a factor in Respondent's decision to fabricate new fuel tanks 

from the existing aluminum shells (as opposed to purchasing new bladder tanks or having an 

engineer design and manufact,u:re brand new aluminum tanks) is in dispute. The FAA 

acknowledges that it p,id not prese~t evidenc~ directly on this point, but the FAA did not present 

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evidence because (1) the FAA was not seeking summary judgment on this point because it was 

not a necessary element to the FAA's Complaint; and (2) Respondent did not request a finding of 

fact on this issue, and the FAA was not aware that the Judge was considering making a finding 

of fact on this issue. 

In support of the notion that this is a disputed issue of fact, the FAA notes that the only 

evidence presented on this subject is Mr. Fowler's self-serving testimony. Even taking only Mr. 

Fowler's own testimony, more than enough doubt is cast as to his credibility on this subject to 

preclude a finding of fact in Respondent's favor prior to hearing. In particular, Mr. Fowler in his 

deposition during discovery (cited by the Judge in the Order) stated that cost was not a factor in 

the decision and stated that there was "no [cost] difference to us whatsoever" between the 

method of changing the fuel tanks that was employed and the other options available. See 

Respondent's Summary Response Exhibit Bat 30-31. However, in his perpetuation deposition, 

Mr. Fowler admitted that this testimony was false. As Mr. Fowler stated at his perpetuation 

deposition, the cost estimates for purchasing new bladder tanks or manufacturing new aluminum 

tanks were around $50,000. See Respondent's Pre-Hearing Submission Exhibit R-1, Second 

Deposition,1 at 37-38. However, as Mr. Fowler admitted during his perpetuation deposition, 

Respondent paid much, much less for the alteration ultimately performed - something less than 

$10,000. Id at 38. The falsity of Mr. Fowler's assertion at deposition that there was no cost 

difference renders meaningless at best his linked assertion that the cost had no effect on the 

decision. In fact, Respondent saved over $40,000 by performing the alteration in the manner that 

it did. On this alone, a reasonable finder of fact could easily conclude that Mr. Fowler's assertion 

that cost was not a factor was not credible. Accordingly, entering a finding of fact on this point 

prior to hearing is not appropriate. 

1 Respondent marked both Mr. Fowler's original and his perpetuation deposition as R-1. 

2 
Additionally, in the affidavit of Timothy Bourgoine, which was attached to the FAA's 

Motion for Summary Judgment, Mr. Bourgoine talks about the cost of the proposed fuel tank 

replacements and how Respondent was seeking to reduce maintenance costs. See FAA's Motion 

for Sururnary Judgment, Affidavit of Timothy Bourgoine, ~ 8. This provides additional evidence 

that could lead a finder of fact to conclude that cost was a factor in Respondent's decision. 

In sum, there is a dispute as to whether cost was a motivating factor in Respondent's 

decision to change the fuel tanks in the manner that it did. The FAA respectfully objects to the 

Judge's finding that there was not a dispute of fact on this point, and requests that the Judge 

rescind this finding of fact, and consider the matter at hearing. 

Clarification 

In the Judge's Order, several references are made to the ultimate loss of the aircraft on 

June 13,2011, and in particular references are made to assertions by the FAA or FAA witnesses 

that the improper alteration or repair of the fuel tanks caused the loss of the aircraft. See Order at 

8, 9, 12. An objection is not appropriate because there is no finding of fact on this point to object 

to, and a request for reconsideration is not appropriate because it does not appear that the 

statements in the Order on this subject were the basis for the Judge's rulings. However, the 

references in the Order contain inaccuracies that are worth addressing prior to hearing. 

The FAA writes to clarify on this point because the FAA did not allege, and is not 

arguing, that the improper alteration and repair caused the loss of the aircraft. 2 The undisputed 

fact of the loss of the aircraft is referenced in the Complaint, but it is not alleged in the 

Complaint that the improper repairs and alterations caused the loss of the aircraft. None of the 

alleged violations, or the theories or arguments underpinning those violations, relate to the loss 

2 It is possible that the improper alteration and/or repair caused the fire and fue subsequent loss of the aircraft, but 

the FAA has not alleged that this is the case and is not attempting to prove that this is the case. 

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of the aircraft. None of the FAA's expert witnesses have opined that the alteration or repair of 

the fuel tank caused the loss of the aircraft, nor will they so opine at hearing. 

What is at issue is the cause of the fuel leak on June 12, 2011. It is undisputed that the 

lealc was caused by a crack in the welding performed in February 2011. See Order at 19, ~ 44. 

The FAA does argue that the failure of the welding in the short time frame involved indicates 

that there was a problem with the February 2011 welding and that, because of this, the alteration 

of the aircraft in February 2011 rendered the aircraft unsafe for flight (and therefore 

unairworthy). This is one of the several, independent bases that the FAA argues demonstrate the 

unairworthiness of the aircraft after the February 2011 alteration (it is the only basis that alleges, 

or requires the FAA to prove, anything about the ultimate condition of the aircraft).3 

However, the FAA will not argue at hearing that the improper alteration or repair caused 

the loss of the aircraft, and none of the alleged violations relate to whether the improper repair or 

alteration caused the loss of the aircraft. 

l t "\ Respzctf~ll . submitted this IT day of April, 2014. 

~ >.?"_,.. / ~---~:....-\---· CHRISTOPHER -;.;~VENSON Attorney 

Office of the Regional Counsel 

3 As discussed in the FAA's Motion for Summary Judgment, an aircraft can be unairworthy because it (I) is unsafe 

for flight, or (2) because it is not in conformance with its type certificate or type design, an umbrella category that 

includes numerous reasons why an aircraft can be unairworthy, such as failure to perform inspections, improper 

repairs, or approval for return to service by an unauthorized person. See also 14 C.F.R. § 3.5(a) (providing a 

consistent defmition for aitworthiness, although one that only strictly applies to Part 3). 

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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Objection to Finding of Fact and Clarification was 

sent: 

Original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2Wl 000 

One copy via certified mail and facsimile to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Stuart A. Goldstein, P .A. 

7300 North Kendall Dr., Suite 380 

Miami, FL 33156 

Facsimile: (305) 400-0685 

. APR 1 5 2014 

Dated 

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