U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant, 

# RECEIVED .APR 2 12014 

## HEAriiNG DOCKET

vs. DocketNo. FAA-2012-0477 FAA CaseNo. 2011GL030070 LIBERTY FOUNDATION, Respondent. Judge Sullivan

FAA'S CLARIFICATION AND OBJECTION TOFINDINGS OF FACT Pursuantto the Judge's Order Denying Summary Judgment andDeclaring As Established CertainUndisputed Facts, dated April2,.2014, the FAA**~ereby** files an objectionto one ofthose 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. Objectionto Finding ofFact In Finding ofFact #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 ofExhibit B attached to Respondent's Response to the FAA's Motion for Summary Judgment, that exhibitbeingthe 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, butthe FAA did not present

1evidence because (1) the FAA was not seeking summaryjudgment on this point because it was not anecessary elementto the FAA's Complaint; and (2) Respondent did notrequest afinding of fact on this issue, and the FAAwas not aware that the Judge was considering making a finding offact onthis issue. In support ofthe notion that this is a disputed issue offact, 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 offact 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 newbladder 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. Infact, Respondent saved over $40,000 by performingthe alteration in the manner that it did. Onthis alone, areasonable finder offact could easily concludethat

### Mr. Fowler's assertion that cost was not a factor was not credible. Accordingly, entering a finding offact on this point priorto hearing is not appropriate.

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

### 2Additionally, in the affidavit of Timothy Bourgoine, which was attached to the FAA's Motion for Summary Judgment, Mr. Bourgoine talks about the cost ofthe proposed fuel tank replacements and how Respondent was seeking to reduce maintenance costs. 

### See FAA's Motion for Sururnary Judgment, Affidavit ofTimothy Bourgoine,**~** 8. This provides additional evidence that could lead afinder offact to conclude that costwas afactor 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 offact, and considerthe matter athearing. Clarification In the Judge's Order, several references are made to the ultimate loss ofthe aircraft on June 13,2011, and in particular references are made to assertions by the FAAor FAA witnesses thatthe improper alteration or repair ofthe fuel tanks caused the loss ofthe aircraft. 

### See Order at 8, 9, 12. Anobjection is not appropriate because there is no finding offact onthis pointto 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 priorto 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 ofthe 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 ofthe aircraft. None ofthe alleged violations, or the theories or arguments underpinning those violations, relate to the loss

2 It is possiblethatthe improper alteration and/or repair causedthe fire and fue subsequentloss ofthe aircraft, but the FAA has not alleged that this is the case and is not attempting to provethatthis is the case. 3ofthe aircraft. None ofthe FAA's expert witnesses have opined that the alteration or repair of the fuel tank caused the loss ofthe aircraft, nor will they so opine at hearing. What is at issue is the cause ofthe 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 ofthe welding in the short time frame involved indicates thatthere was a problem withthe February 2011 welding and that, because ofthis, the alteration of the aircraft in February 2011 rendered the aircraft unsafe for flight (and therefore unairworthy). This is one ofthe several, independent bases that the FAA argues demonstrate the unairworthiness ofthe aircraft after the February 2011 alteration (it is the only basis that alleges,

orrequires the FAAto prove, anything about the ultimate condition ofthe aircraft). 3 However, the FAA will not argue at hearing that the improper alteration or repair caused the loss ofthe aircraft, and none ofthe alleged violations relate to whether the improper repair or alteration caused the loss ofthe aircraft. 

### l t "\

## Respzctf~ll .submittedthis

# ITday ofApril, 2014.

# ~ >.?"_,.. 

# /**~---~:....-\---·** CHRISTOPHER

# -;.;~VENSON Attorney Office ofthe Regional Counsel

3 As discussed in the FAA's Motionfor Summary Judgment, an aircraftcanbe unairworthybecause it (I) is unsafe for flight, or (2) because it is notin 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 returnto serviceby anunauthorizedperson. See also 14 C.F.R. § 3.5(a) (providing a consistent defmition for aitworthiness, although one that only strictly applies to Part 3). 

### 4CERTIFICATE OF SERVICE I hereby certify that the foregoing FAA's Objection to Finding of Fact and Clarification was sent: Original and one copy viacertifiedmail to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building

- Suite 2Wl000 One copy via certified mail and facsimile to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 StuartA. Goldstein, P.A. 7300North Kendall Dr., Suite 380 Miami, FL 33156 Facsimile: (305) 400-0685



## . APR 15 2014 Dated

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