0 

U.S. Department 

Of Transportation 

Federal Aviation 

Administration 

Office of Regional Counsel 

August 23, 2012 

Northwest Mountain Region 

Colorado, Idaho, Montana, 

Oregon, Utah, Washington, 

Wyoming 

...... ~Federal Aviation Administration 

800 Independence Avenue SW 

Wilbur Wright Building, Suite 2W1 000 

Attn: Hearing Docket Clerk, AGC-430 

Washington, D.C. 20591 

Honorable Richard Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

Vnane B. Jaques, Esq. 

Dombroff Gilmore Jaques & French, PC 

1676 International Drive, Penthouse 

McLean, VA 22101 

SUBJECT: FAA Case No. 2010NM010105 

FDMS No. FAA-2011-0682 

Aviation Technical Services, Inc. 

Motion for Summary Judgment- Corrected 

1601 Lind Avenue S.W. 

Renton, Washington 98057 

Tel: (425) 227-2165 

Fax: (425) 227-1007 

ReCEIVED 

AUG 2 7 2012 

HIAi1lNG DOCKET 

Please see the enclosed corrected copy of the MSJ regarding the above-referenced case. The 

correction is explained in the footnote on page eight, that the year was inadvertently left off the 

original signed copy of the document. We apologize for this inconvenience and please call our 

office at ~25) 227-2165 with any questions. / 

Sine/ely, 

.·~. // 

/1\Jc~ David F. Shayne 

Attorney 

DS:nm 

Enclosure 
UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

--~-----.. ·----A:viationTechnical-Services; Inc: 

MOTION FOR A DECISION 

FAA Case No. 2010NM010105 

FDMS No. FAA-2011-06~2 

Corrected 

Judge Richard C. Goodwin 

Federal Aviation Administration (FAA), Complainant in the above-captioned 

matter, pursuant to the provisions of 14 C.F.R. § 13218(£)(5) and Rule 56 of the Federal 

Rules of Civil Procedure (FRCP), hereby moves for a Decision (Summary Judgment) in this 

case, since, after considering the pleadings and the attached declarations and evidence, it 

should be clear that there is no genuine issue as to the material facts alleged and discussed 

below, and the FAA is entitled to a judgment in this case as a matter of law. 

BACKGROUND 

1bis case arose when routine FAA surveillance uncovered the fact that Respondent 

had performed maintenance on four different Boeing 73 7 actuator beam assemblies and had 

failed to follow the applicable methods and techniques for the procedures performed. 

Complainant issued a Notice of Proposed Civil Penalty and conduct an informal conference 

with Respondent and its counsel. After the parties were unable to reach settlement, 

Complainant filed a Complaint and later, on January 11, 2012, filed an Amended Complaint 

which states as follows: 

1 
2 

II. 

1. Aviation Technical Services, Inc. (ATS) is now, and at all times mentioned herein 

was, the holder of Repair Station Certificate No. HN6R593N. 

2. ATS performed maintenance on behalf of Southwest Airlines (SWA), 

(an air carrier having a continuous airworthiness maintenance program) including: 

· a:·-···~--the·repair·ofBoeing737 main landing gear actuator beam assembly part 

number 65-46108-19 serial number 854 on or about November 21, 2009; 

b. the overhaul ofBoeing 737 main landing gear actuator beam assembly 

part number 65-46108-19 serial number 3264 and its installation on 

N376SW on December 12, 2009; 

c. the overhaul of Boeing 737 mainlanding gear actuator beam assembly 

part number 65-46108-19 serial number 815 on or about January 9, 2010; 

and 

d. the overhaul and return to service of Boeing 73 7 main landing gear 

actuator beam assembly part 65-46108-19 serial number 2565 on February 

2, 2010. 

3. Airworthiness Directive (AD) 2009-09-07 requires that all Boeing 737 part 

number 65-46108 main landing gear actuator beams be overhauled as specified in 

the instructions given in Boeing Service Bulletin (SB) 737-32Al355 Revision 2, 

to detect and correct broken actuator beams which could result in loss of control 

of the airplane. 

4. SB 737-32Al355 R2 incorporates Boeing Component Maintenance Manual 

(CMM) 32-16-31. CMM 32-16-31 specifies that repair sleeves and bushings are 

to be made with 17-4 PH stainless steel and cadmium plated in accordance with 

Standard Overhaul Practices Manual (SO PM) 20A2-05, "Bright Cadmium 

Plating." 

5. SOPM 20-42-05 requires that cadmium plating be applied to a minimum thickness 

of .0005 inch. ATS had cadmium plating applied to a thickness of only .0004 inch 

on main landing gear retract actuator beam assembly (repair sleeves and bushings) 

serial numbers 815, 854, and 2565, and a thickness of only .0003 inch on serial 

number 3264. 

6. SOPM 20-42-05 requires that following cadmium plating parts, fabricated with 

17-4 PH stainless steel be given a hydrogen embrittlement bake for a minimum of 

12 hours at 350-400 degrees. ATS had hydrogen embrittlement baking of the 
listed parts (repair sleeves and bushings) done for only 8.5 hours (serial number 

2565), 10.4 hours (serial numbers 815 and 854), and 11 hours, 20 minutes (serial 

number 3264). 

7. In conducting the overhaul and repair of the listed main landing gear actuator 

beam assemblies, ATS did not conduct the maintenance in the manner required by 

AD 2009-09-07 and SB 737-32Al355. 

8. The SW A Continuous Airworthiness Maintenance Program (CAMP) includes 

airframe manuals, including the Boeing Structural Repair Manual and Boeing 

· ---ServiceBulletinso~-~--.-~------ __ _ 

9. In conducting the overhaul and repair of the listed main landing gear actuator 

beam assemblies, ATS did not comply with the SWA CAMP. 

10. In conducting the overhaul and repair of the listed main landing gear actuator 

beam assemblies, ATS did not use methods, techniques, and practices acceptable 

to the Administrator. 

11. In conducting the overhaul and repair of the listed main landing gear actuator 

beam assemblies, ATS did not perform the work in such a manner that the 

condition of the aircraft, airframe, engine, propeller or appliance worked on was 

at least equal to its original or properly altered condition. 

III. 

1. By reason of the foregoing facts and circumstances, ATS violated the following 

sections ofthe Federal Aviation Regulations (14 C.F.R.): 

3 

a. Section 43.13(a) in that, when performing maintenance, alteration or 

preventive maintenance required by Part 91 of the Federal Aviation 

Regulations, ATS failed to 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. 

b. Section 43.13(b) in that ATS performed maintenance, alteration, or preventive· 

maintenance and did not perform the 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 was at least equal to its original or properly 

altered condition. 

c. Section 145.205(a) in that ATS performed maintenance, preventive 

maintenance, or alterations for an air carrier or commercial operator that has a 

continuous airworthiness maintenance program under part 121 or part 135 and 
did not follow the air carrier's or commercial operator's program and 

applicable sections of its maintenance manual. 

d. Airworthiness Directive (AD) 2009-09-07, in that ATS failed to accomplish 

the required actions in accordance with the AD. 

On or about January 31, 2012, Respondent filed its Answer. Except as to three 

minor details, Respondent admitted the allegations in Section II, paragraphs one through 

four, 1 and paragraph eight. Respondent denies all remaining paragraphs in sections II and 

m in their entirety. 

The parties exchanged discovery requests. Complainant presented Requests for 

Admissions (RF As) in its discovery requests. RF As 2. and 3 asked Respondent to admit 

the allegations described in Section II of the Complaint, paragraph 5 and Respondent did 

not deny the allegations (see Attachment 1) : 

REQUEST FOR ADMISSION NO. 2: 

Admit thatATS had cadmium plating applied to a thickness of.0004 inch on main landing 

gear retract actuator beam assemblies (bushings and sleeves) serial numbers 815, 854, and 

2565. 

RESPONSE: Respondent states that information currently known to, or readily obtainable 

by, A TS is insufficient to enable it to admit or deny this request. 

REQUEST FOR ADMISSION NO.3: 

Admit that that A TS had cadmium plating applied to a thickness of .0003 inch on main 

landinggear retract actuator beam assembly (bushings and sleeves) serial number 3264. 

RESPONSE: Admitted. 

RF A 9 asked for an admission that the components at issue were made of a certain 

material that subjected them to the airworthiness instructions relevant to this case (see 

Complaint Section II, paragraph 6): 

REQUEST FOR ADMISSION NO.9: 

1 Respondent's denials reference the dates stated in paragraphs 2(a) and 2(c) and the term "repair" in 2(a). 

Those allegations are indeed erroneous and have been corrected in the Second Amended Complaint. 

4 
Admit that main landing gear actuator beam assembly part number 65-46108-19 

(bushings and sleeves) serial numbers 815, 854,2565 and 3264 were fabricated of 17-4 

PH stainless steel 180ksi or above. 

RESPONSE: Admitted. 

RF As 10, 9, 10 and 112 all asked for admissions that the components at issue were not 

baked for the required length of time. Respondent failed to deny any of these allegations. 

A. Standard of Review 

A Motion for Decision pursuant to § 13.218(f)(5) is, for all intents and purposes, the 

same as a Motion for Summary Judgment under FRCP 56 and is reviewed under the same 

standard. In Re the Matter of Scott McDougall, Doc. CP89EA0316 at 4 (1990). Motions 

for Summary Judgment may be decided on admissible evidence that is outside of the 

pleadings, normally presented in declarations or affidavits. In Re the Matter of Horizon Air 

Industries, FAA Order No. 96-24 (1996). All inferences in the evidence must be drawn in 

favor of the non-moving party. If the court determines that the non-moving party 

demonstrates, through putatively admissible evidence that some genuine dispute of fact 

exists, then the motion should be denied. McDougalL 

If, on the other hand, the court determines no genuine issues of fact exist and the 

outstanding legal issues are resolved in favor of the moving party's position, then the 

moving party is entitled to a judgment on any such issue as a matter oflaw. Id. 

B. The Evidence Establishes at Least a prima facie Case.3 

The allegations relating to the violations committed can be summarized as follows: 

I. Respondent performed maintenance (overhaul) on 4 different "actuator beams" 

that are components installed on Boeing 73 7 aircraft operated by Southwest 

2 Duplicate numberings resulted from a scrivener's error in drafting the discovery requests. 3 See Attachment 2, which summarizes the evidence establishing the violations. 

5 
Airlines (SW A). The maintenance at issue included the application of cadmium 

plating to various parts (bushings and sleeves) and then baking these same parts 

for a specified period of time. See Attachment 2. 

2. Respondent should have performed the tasks mentioned above in accordance 

with several different documents (See Complaint, Section II, paragraphs 3, 4, 5, 

6, and 8, Attachment 2). The instructions at issue are: a) The cadmium plating 

be applied to a minimum thickness of .0005 inch and, since the parts were 

fabricated of 17-4 PH stainless steell80ksi or above, b) the cadmium plated 

parts be baked for at least 12 hours. (See Complaint, Section II, paragraph 5 and 

6). See Attachment 3. 

3. Respondent failed to follow the instructions discussed above, in that it failed to 

apply the cadmium plating to the appropriate thickness onto the parts at issue 

and it failed to bake the parts for the fulll2 hours. (See Complaint, Section II, 

paragraph 5 and 6). See attachments 4 through 11. 

All the above allegations are supported by documentary evidence, the pertinent contested 

portions of which are appended to this motion. Therefore, Complainant has established a 

prima facie case that, if not refuted, should result in affirmation of its Complaint. 

C. Respondent has Admitted or Failed to Deny the Facts Necessary to Prove the 

Allegations. 

If the facts as alleged above are proven, then the violations stated in the Complaint at 

Section III are proven as well. Respondent's Answer admitted the allegations grouped 

above in number 1. It also admitted the allegations grouped in number 2 except that it 

denies that SOPM 20-42-05 requires that the cadmium plating be applied to a minimum . 

6 
thickness of .0005 inch or that the baking be accomplished for 12 hours. It denies also that 

it failed to follow those instructions. 

However, in its answers to the RF As as described above, Respondent admitted that it 

applied cadmium plating onto one part at a thickness below .0005 inch and fails to deny that 

it did so for the other three parts. It also admitted that the parts were fabricated of 17-4 PH 

stainless steel 180ksi or above (which means they were subject to the 12 hour baking 

requirement) and it fails to deny that it baked the parts for less than the required 12 hours. 

Respondent has not categorically denied any particular fact that is necessary to prove 

the allegations. For this reason, the case is ripe for summary judgment, at least as to the 

issue of whether the violations were committed. See In Re Gamache-W Ortmilll, FAA Order 

No. 2012-4 (2012) (holding that when a party fails to answer a RF A, the ALJ may deem the 

failure an admission, 14 CR 13.220(1), and may grant amotion for decision). 

Accordingly, the ALJ should find no genuine issues of fact exist and, under the law 

as stated above, Complainant's Motion for Decision should be granted. 

C. The Administrator's Sanction in this Case Should be Affirmed. 

FAA Order 2150.3B, the FAA's primary enforcement and compliance policy· 

source, (see In re Folsom's Air Service, 2008 WL 4948488 (FAA Order 2008-11)); 

specifies a "moderate to maximum" sanction when repair stations fail to properly perform 

maintenance for air carriers. See Fig, B-3-b(12). As a Large Business Concern (see FAA 

Order 2150.3B, Appendix B-5), Respondent is subject to a fine of up to $25,000 per 

violation. The fine represents four violations calculated above the median point but well 

within the.sanction range. 

7 
Since the proposed sanction is well within the discretionary authority of the 

Administrator, and is neither unusually high or low, it should be affirmed. 

CONCLUSION 

WHEREFORE, since there is no genuine issue as to the material facts raised herein 

and the FAA is entitled to a judgment as a matter of law all issues presented in the 

Complaint, FAA counsel requests that the ALJ grant this Motion for Decision and enter a 

decision affirming the Administrator's FNPCP issued in this case in its entirety. In the 

alternative, Complaint requests that partial summary judgment be granted, at least as to the 

issue of whether the violation occurred. 

Respectfully submitted, 

DATED this 22"ct day of August, 20124 

/s/ 

DAVID F. SHAYNE 

FAA Attorney 

/s/ 

Karen Davis Huber 

FAA Attorney 

4

The year was inadvertently left off the original signed copy. 

8 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Motion for a Decision has been served via FedEx 

overnight delivery to the following: 

9 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1 000 

Honorable Richard Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, D.C. 20590 

Dane B. Jaques, Esq. 

Dombroff Gihnore Jaques & French, PC 

1676 International Drive, Penthouse 

McLean, VA22101 

Dated this 22"d day of August, 2012. 

Is/ 

Natalie Morrell 

Office ofRegional Counsel (ANM-7) 

Federal Aviation Administration 

1601 Lind Avenue SW 

Renton, W A 98057 

(425) 227-2914