U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

RECEIVED 

FE3 2 0 2014 

HEARING DOCKET 

vs. 

Docket No. FAA-2012-0477 

FAA Case No. 2011GL030070 

LIBERTY FOUNDATION, 

Respondent. Judge Sullivan 

REPLY IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT 

The FAA hereby replies in support of its Motion for Summary Judgment in this case. 

Respondent's Response in Opposition to the Motion for Summary Judgment discloses no 

genuine issues of material fact, and the FAA is entitled to judgment as a matter oflaw. 

SUMMARY OF THE ARGUMENT IN REPLY 

In the FAA's original motion, the FAA presented evidence and argument as to why there 

were no genuine issues of material fact in this case, and the FAA was entitled to judgment as a 

matter of law. This motion is supported by the expert affidavits or declarations of multiple 

experts on aviation maintenance - Timothy Bourgoine, Donald Dodge, Thomas Soerens, and 

Thomas Duellman. 1 

Respondent now opposes the FAA's motion but, unusually for a case that is almost 

entirely focused on the technicalities of a maintenance issue, Respondent has failed to present 

evidence from a single expert on aviation maintenance. Although Respondent presents 

1 As indicated in the FAA's Motion for Summary Judgment, Inspector Duellman was hospitalized at the time that 

motion was submitted, and he was unable to complete an affidavit at that time. Inspector Duellman's expert 

declaration is, as a result, attached to this Reply. 

1 
declarations offering opinions on the maintenance and alterations it performed on N390TH, these 

individuals are not experts, but rather lay witnesses. They were never identified as experts during 

discovery, 2 

no expert (or lay) opinions by them were every disclosed during discovery, and the 

FAA has had no opportunity to depose the witnesses on the opinions now presented. Respondent 

repeatedly cites to the declarations of these non-experts, but on technical matters they have no 

value now and their testimony would have no value at hearing. See, e.g., Federal Rule of 

Evidence 701 (providing that a non-expert witness may not provide opinion testimony on 

scientific, technical, or other specialized knowledge). 3 No reasonable finder of fact could find in 

favor of Respondent based on the unsupported opinions of these lay witnesses on technical 

matters concerning aviation maintenance. 

Throughout the Response, the Respondent repeatedly attempts to create genuine issues of 

material fact where none exist. On every issue presented in the FAA's Motion for Summary 

Judgment, the Respondent either presents no facts, attempts to contradict expert opinions with 

unfounded lay opinions, or presents a new declaration that simply contradicts the prior sworn 

deposition testimony from the witness. Respondent instead asks the Judge to ignore regulations, 

ignore the undisputed facts, ignore deposition testimony in favor of declarations drafted 

specifically for the purpose of defeating summary judgment, and then credit unsupported lay 

opinions as to the meaning of the Federal Aviation Regulations and as to the technicalities of 

2 Expert witness disclosures were due in February 2013. 3 Respondent notes that summary judgment motions, and the oppositions to such, can be supported by materialsuch as affidavits or declarations- that would not be admissible at trial. See Response at 2. However, while Rule 

56( c) permits the submission of declarations or affidavits, it also expressly provides that this evidence cannot be 

information that could not be submitted in in an appropriate form at trial. Fed.R.Civ.Pro. R 56(c)(2). Therefore, 

while the factual statements in the declarations of Respondent's lay witnesses may be considered for purposes of 

summary judgment, their lay opinions on technical matters should not be considered. Not only are these lay opinions 

on technical matters, but these are also opinions that were never disclosed during discovery, despite discovery in this 

case having lasted for approximately a year and a half. 

2 
aviation maintenance. In short, Respondent presents no genuine issue of material fact sufficient 

to preclude summary judgment. 

For convenience, the numbering of sections in this Reply will follow the numbering in 

the FAA's original Motion for Summary Judgment. Exhibit identification will continue from that 

those attached to the FAA's original Motion for Summary Judgment. 

ARGUMENT 

I. Respondent Is Responsible For the Actions ofits Director of Maintenance 

In the original Motion for Summary Judgment, the FAA argued that Mr. Schneider was 

Respondent's agent on matters of aircraft maintenance when he was acting as Respondent's 

Director of Maintenance and, as a result, Respondent was liable for Schneider's maintenance 

violations under respondeat superior. 

Respondent denies without explanation that Schneider committed any maintenance 

violations, Response at 34, but provides no basis for this denial, and does not challenge the Order 

of Suspension entered against Schneider. In light of the Order of Suspension against Schneider, 

see Attachment W, Respondent's denial in its Response, unsupported by any evidence, does not 

suffice to create a genuine issue of material fact as to whether Schneider committed the 

violations enumerated in that final Order. 

Respondent also contends that, regardless, it was not responsible for Schneider's 

violations because he was not its agent. In support of this contention, Respondent submits the 

declaration of Raymond Fowler, in which Fowler asserts that Mr. Schneider, as Respondent's 

Director of Maintenance, had no authority whatsoever to make maintenance decisions.4 

Response Attachment V. This assertion defies belief. More importantly for purposes of summary 

judgment, this assertion contradicts the prior sworn testimony given by Mr. Fowler. 

4 Mr. Schneider's declaration is silent on this subject. See Response Attachment D. 

3 
"In reviewing motions for summary judgment, the courts have long tended to treat 

affidavits repudiating previous testimony as irrelevant, inadmissible, or evasive." Advanced 

Micro Devices, Inc. v. Great American Surplus Lines Ins. Co., 199 Cal.App.3d 791, 800 (1988). 

A party may not prevent summary judgment by submitting a declaration or affidavit that 

contradicts prior deposition testimony- such a declaration or affidavit does not create a genuine 

issue of material fact. See, e.g., id.; McCormickv. City of Fort Lauderdale, 333 F.3d 1234, 1240 

n.7 (2003). 

In his deposition testimony, Fowler explicitly stated that Schneider's role as Director of 

Maintenance at Liberty Foundation was directly modeled on the Director of Maintenance 

Position at an air carrier. Attaclunent Rat 10-11. This is completely inconsistent with Fowler's 

new assertion that Schneider had no maintenance authority at all. While Respondent was not 

required to have a Director of Maintenance, having chosen to create that position and imbue it 

with authority similar to that of an air carrier Director of Maintenance, that Director of 

Maintenance is an agent when it comes to performing maintenance. 

Respondent also notes that Schneider was not an employee, officer, or director. This is 

true, but immaterial. Agency relationships are broader than these limited labels. See Riverdale 

Mills Corporation, FAA Order No. 2003-10 (2003). 

Respondent cannot create a genuine issue of material fact by submitting a declaration that 

contradicts prior deposition testimony. There is no genuine issue of material fact on this issue, 

and the FAA is entitled to judgment as a matter oflaw. 

II. The Work on N390TH That Concluded In The February 24, 2011, Return to Service 

Was An Alteration 

Throughout this case, including in the Motion for Summary Judgment, the FAA has 

maintained that the work performed on N390TH that culminated in the February 24, 2011 return 

4 
to service was an alteration. Respondent has, throughout this case, refused to state whether it 

believes the work was an alteration or a repair. 

In the affidavit of Mr. Schneider, this lay witness references the work as a "repair." 

Response Attachment D '1[3; Response Attachment F '1[5. However, in the Response, Respondent 

conducts its entire discussion of the subject in terms of whether the work was a major or minor 

alteration. Response at 12-25. Accordingly, although Respondent refuses to explicitly address the 

issue, there is no dispute between the parties that this work was an alteration. 

III. The February 24, 2011, Maintenance Record Entrv Did Not Describe The Work 

Performed 

In February 24, 2011, Respondent returned N390TH to service after removmg and 

discarding the existing bladder fuel tanks, fabricating attachments, welding those attachments 

onto aluminum shells, welding aluminum plates to plug holes in the aluminum shells, welding 

shut the removable ends of the shells, and then installing the welded-aluminum shells as fuel 

tanks. However, the maintenance log entry made for this work did not reflect the work 

performed, instead saying that the tanks were simply "repaired" and that the "original aluminum 

tanks" were reinstalled. This resulted in a violation of 14 C.P.R. § 43.9(a), § 91.405(b), and 

§ 91.407. 

As discussed in the FAA's Motion for Summary Judgment, there is no genuine issue of 

material fact on this point. There is no dispute as to what the maintenance log entry says. There 

is no dispute as to what work was actually performed. In its efforts to defeat summary judgment, 

Respondent presents no facts that dispute this and no law that renders it moot. Respondent 

instead simply presents the declaration of Mr. Schneider, in which Mr. Schneider opines that 

"the log entry fully met the requirements of the work performed." Response at 8-9; Response 

Attachment D '1[3. 

5 
Mr. Schneider's personal op1mon that the log entry accurately reflected the work 

performed is irrelevant, and does not create a genuine issue of material fact. There is no dispute 

as to the text of the entry. There is no dispute as to the work performed. As discussed in Section 

II above, there is no dispute between the parties that the work was an alteration. Respondent 

asserts that this is simply a question of whether the word "fabricated" or "repaired" should have 

been used. Response at 9. This is inaccurate. 5 It is true that the work was an alteration and 

involved the fabrication of fuel tanks, and it is true that the log inaccurately reflected that the 

"original" tanks were simply repaired and reinstalled. See Attachment Q at 4. However, that was 

not the only inaccuracy in the log entry. For example, the log entry refers to reinstalling a variety 

of "original" attachments using the "original" mounting methods, but it is undisputed that the 

work performed on the aircraft included the fabrication and installation of new attachments and 

mountings. Attachment Cat 17, 26. 

Respondent then violated § 91.407(a)(2) by operating the aircraft without the 

maintenance entry required by§ 43.9. 

Furthermore, it is undisputed that Respondent knew the nature of the work performed on 

N390TH, not only through its Director of Maintenance Rodney Schneider, but also through the 

direct involvement of its Executive Director, Ray Fowler. As a result, Respondent carmot escape 

liability for its violation under § 91.405(b). As the operator of the aircraft, it was directly 

responsible for ensuring that its maintenance personnel made appropriate entries for work 

performed on the aircraft. Here, the maintenance entry was not appropriate because it did not 

accurately describe the work performed. 

5 Even if it was accurate, there would still not be a genuine issue of material fact, because new fuel tanks were 

fabricated, and as discussed elsewhere there is no genuine dispute of material fact as to whether this was a repair. 

6 
The actual work performed on N390TH is undisputed. The text of the February 24, 2011 

maintenance log entry is not disputed. There is no testimony or other evidence to be presented at 

hearing on this subject; no evidence to be presented that will change the text of the log entry, the 

nature of the work performed, or the disparity between the two. There is no genuine dispute of 

material fact as to this point, and the FAA is entitled to judgment as a matter oflaw. 

IV. The February 24,2011, Alteration Was A Major Alteration, Not A Minor Alteration 

In the Motion for Summary Judgment and the multiple attached expert affidavits, the 

FAA presented a plethora of reasons why the work culminating in the February 24, 2011 return 

to service was a major alteration, not a minor alteration. In its Response, the Respondent fails to 

present any information that could preclude summary judgment. It makes legal arguments, but 

these legal arguments are flawed. And it presents unsupported opinions from lay witnesses on 

the technicalities of aviation maintenance, which do not serve to raise a genuine issue of material 

fact when contrasted with the multiple expert opinions presented by the FAA. 

As an initial matter, it is worth noting that Respondent spends seven pages on this subject 

before ever acknowledging the existence of 14 C.F.R. § 1.1, which contains the definition of 

"major alteration." Respondent instead asserts that the "definition" of major alteration is to be 

found in an appendix to Part 43. Respondent presents no basis for its assertion that the list of 

examples of major alterations contained in Appendix A to Part 43 is the "definition" of major 

alteration, in contradiction to the explicit and plain language of the regulations. 

Additionally, Respondent fails to address the guidance issued by the Administrator to his 

representatives, which was attached to the FAA's Motion for Summary Judgment and which 

indicates that any work on a fuel tank constitutes a major repair or alteration requiring a Form 

337, engineering approval, or a supplemental type certificate (STC). 

7 
A. Appendix A to Part 43 

However, even looking only at Appendix A to Part 43, the alteration was a maJor 

alteration. The relevant example of a major alteration given in Appendix A is a change to the 

basic design of the fuel system. 14 C.F.R. Part 43 App. A(a)(1)(xii). The expert affidavits 

attached to the FAA's Motion for Summary Judgment directly addressed this example, and all 

four of the experts noted that the work done on N3 90TH was a change in the basic design of the 

fuel system. Attachment B ~ 23; Attachment GG ~ 18; Attachment HH ~ 18; Attachment JJ ~ 18. 

Respondent assets that the Judge must hear the testimony of the parties on this point, but fails to 

identify any relevant material testimony. What Respondent does instead is list proposed 

testimony as to what work was done on the aircraft. Response at 15-16. But there is no dispute as 

to what work was done on the aircraft. What is in dispute is the legal and maintenance 

significance of the work being done. On that point, the unfounded lay opinions of Mr. Schneider 

and Mr. Underwood are meaningless. Respondent then confounds its error by attacking the 

expert opinions of Timothy Bourgoine on the basis that Mr. Bourgoine did not personally 

observe the work being performed. Response at 16-18. This attack misunderstands the nature of 

expert opinions. Mr. Bourgoine (along with fellow expert witnesses Donald Dodge, Thomas 

Duellman and Thomas Soerens) does not speak as a lay witness as to the nature of the work 

performed. Again, there is no dispute as to the nature of the work performed. The dispute is as to 

the significance and legal classification of that work. Mr. Bourgoine (along with the other 

experts) speaks as an expert witness, qualified to deliver an expert opinion on matters of aviation 

maintenance, including those raised in this case. As an expert, it is not his role to provide 

personal lay observations, but rather to review the facts of the situation and provide the Judge 

and the parties with expert knowledge based on those facts (which, in this case, are undisputed). 

8 
Respondent further complains that "Nowhere in its Motion for Summary Judgment does 

[the] FAA even described the 'basic design' of the B-17 fuel system." Response at 18. 

Respondent appears to be arguing that because some B-17 aircraft were manufactured with 

aluminum fuel tanks, its alteration of the fuel system in this B-17 could not have been a "change 

in the basic design." This argument is flawed for a variety of reasons. Respondent is correct that 

some B-17 aircraft were originally manufactured with aluminum fuel tanks. But Respondent fails 

to identify why this is relevant. Whether or not an alteration is major or not is judged with 

regards to the current configuration of the aircraft, not some configuration it had decades ago. 

Further, no B-17 was ever manufactured with the sort of aluminum fuel tanks that were 

fabricated and installed on N390TH. Respondent mocks the distinction made by the expert 

witnesses concerning the type of aluminum fuel tanks involved, see Response at 18 n.6, but (to 

the extent that the original configuration of some other B-17 is relevant at all) this is an 

important distinction. The kit-bashed and spot-welded aluminum fuel tanks installed by 

Respondent in N390TH were not the same kind of fuel tanks that some B-17 aircraft were 

originally manufactured with. One cannot simply assume equivalence between all aluminum fuel 

tanks, regardless of their quality or method offabrication. Additionally, contrary to Respondent's 

assertions, it is known that this B-17 was not manufactured with aluminum tanks. Attachment 

GG ~~ 7-8; Attachment HH ~~ 7-8; Attachment JJ ~~ 7-8.6 

6 Respondent only references the affidavit of Timothy Bourgoine when discussing this subject, criticizing that 

affidavit for only stating a "belief' about the original tanks. Response at 18. However, Mr. Bourgoine's affidavit 

does not offer any opinion about what fuel tanks N390TH was originally manufactured with. Rather, he describes 

the kind of fuel tanks that were installed on N390TH prior to the alteration. See Attachment B ~ 8. As noted above, 

the other expert witnesses were able to identify the nature of the original fuel tanks from N390TH based on the 

serial number of the aircraft. 

9 
B. Section 1.1- Definitions 

While Respondent primarily rests its legal arguments on ignoring the regulatory 

definition of a major alteration in favor of the list of examples in Appendix A to Part 43, it does 

eventually acknowledge the existence of the definition in § 1.1. Respondent fails, however, to 

present any valid reasons to ignore the explicit regulatory definition of "major alteration" and 

adopt the list of examples contained in Appendix A to Part 43 as a "definition." 

As an initial matter, Respondent asserts that the "doubts" and "inferences" on this matter 

must be drawn in its favor. Response at 19-20. This misunderstands how summary judgment 

works. Issues of fact are taken in the light most favorable to the non-moving party. This is an 

issue of law. It is not an issue of evidence to be decided by the Judge after hearing witnesses, it is 

an issue of law to be decided by the Judge after hearing arguments from attorneys. There is no 

reason for the Judge to conduct a hearing before determining that the explicit regulatory 

definition of "major alteration" is, indeed, the definition of major alteration. Although 

Respondent again and again refers to the "definition" contained in Appendix A, there is no basis 

for this label. Section 1.1 contains definitions (including the definitions of major repair and 

major alteration) and is explicitly labeled in the regulations as containing definitions. Appendix 

A is not. Respondent asserts that the definition in § 1.1 and the "definition" in Appendix A 

"cannot logically be read harmoniously together," and that therefore the definition is § 1.1 should 

be ignored.7 Respondent seeks to manufacture a "defmition," claim that it is inconsistent with the 

actual definition, and then throw out the actual definition because it allegedly conflicts with the 

manufactured "definition." This result would be absurd, and can be dismissed. 

7 Respondent correctly notes that§ 43.9(d) gives a reference to Appendix B of Part 43, but does not refer to§ 1.1. It 

is unclear why Respondent feels that a reference to Appendix B, which concerns the type of documentation required 

for major repairs and major alterations, has any relevance as to whether the definition in§ 1.1 or the list of examples 

in Appendix A is the definition of major alteration. 

10 
Respondent then contends that even under the actual definition of a major alteration, the 

work was not a major alteration. Response at 20-25. This contention largely consists of 

complaints about the expert affidavits submitted by the FAA but, again, Respondent fails to 

submit any contradictory evidence. Further, Respondent's analysis - although purporting to be 

an analysis under § 1.1 - simply ignores the language of§ 1.1. An alteration is minor if it cannot 

appreciably affect any quality affecting airworthiness. An alteration is major if it might 

appreciably affect any quality affecting airworthiness. See 14 C.F .R. 1.1. Yet Respondent attacks 

the expert opinions for discussing whether or not the alteration was a major alteration in terms of 

whether the alteration might have affected the airworthiness of the aircraft. Response at 20-25. 

Further, Respondent again misunderstands the nature of expert testimony. The FAA has 

presented the sworn statements of multiple experts concerning the impact that this sort of 

alteration. If Respondent wished to preclude summary judgment, it needed to at a minimum 

present some sort of expert testimony on this subject, but despite having had years to assemble 

something, Respondent has failed to present a single expert opinion by a single expert on 

aviation maintenance on any subject at issue in this case8 Respondent instead relies on 

unsupported and off-base criticism in the body of its brief. For example, the various expert 

witnesses note that an aluminum fuel tank is subject to vibrational stresses in ways that a bladder 

fuel tank is not. Respondent attacks these expert opinions as "frivolous" and having no 

supporting basis. Respondent is perhaps unaware that the Federal Aviation Regulations provide 

that metallic fuel tanks must be subjected to additional vibrational testing as part of the 

8 The one expert opinion presented by Respondent is that of a metallurgist. Mr. Genculu has no experience in 

aviation. His opinions concern (1) the nature of the welding material used and (2) whether he could determine based 

on an examination of selected portion of the burned-out wreckage ofN390TH whether the proffered weld joints had 

failed prior to the fire. Response Attachment K. The former opinion is irrelevant, as the welding material used is not 

in dispute. The second opinion is irrelevant for several reasons, but most importantly because, regardless of the 

condition of the selected segments of the fuel tanks examined by Mr. Genculu, and whether any of those weld joints 

failed, it is undisputed that there was a weld joint failure, which caused the fuel leak in June 2011. 

11 
airworthiness certification process. See, e.g., 14 C.P.R. § 25.965(b) (requiring vibrational testing 

for metallic fuel tanks on transport category aircraft). Another example is that Respondent asserts 

that the experts "cannot know the detail of the work described in Liberty's declarations." 

Response at 23. This ignores the fact that these experts reviewed voluminous materials 

concerning this case, as discussed in their affidavits, including the descriptions of the work 

performed by those who performed it.9 A third example is that Respondent criticizes the expert 

affidavits for "mistakenly talk[ing] about baffles in the bladder tanks, despite the fact that there 

were none." Response at 23. This criticism is factually mistaken, however, as the affidavit in 

question makes no reference to baffles in the bladder tanks, but rather asserts that the new 

aluminum tanks should have included baffles. Attachment GG '1!14. A fourth example is that 

Respondent asserts that there is "no factual support" for the notion that the new aluminum fuel 

tanks had an increased fuel capacity as compared to the original bladder fuel tanks. Response at 

21, 23. Given that the original bladder fuel tanks were contained inside the aluminum shells that 

were fabricated into fuel tanks, it is unclear how the new fuel tanks could not have had an 

increased capacity, since the space once occupied by the inches-thick bladder liners would now 

be occupied by fuel. 

The FAA has presented expert affidavits from maintenance personnel with decades of 

experience performing maintenance and decades of experience in applying the Federal Aviation 

Regulations. As a general legal matter, Respondent cannot defeat this evidence simply by 

authoring complaints in a motion response. As a particular matter in this case, the small number 

of examples above demonstrate that Respondent's criticisms lack any validity. In sum, 

Respondent's personal opinions are worth no weight, and cannot defeat summary judgment. 

9 Indeed, if there were any new, material details of the work performed that was contained in the declarations of Mr. 

Schneider and Mr. Underwood, this would mean that the Respondent had committed discovery violations by 

withholding these details until now. 

12 
The question of whether the definition of "major alteration" contained in 14 C.F .R. § 1.1 

is the definition of major alteration is a question oflaw. The question of whether the alteration of 

N390TH fell within that defmition (or any other definition) is a question of law and expert 

opinion. Questions of law cannot defeat summary judgment, and Respondent has presented no 

expert testimony that could generate a genuine issue of material fact. Accordingly, the FAA is 

entitled to summary judgment on the question of whether the work culminating in the February 

24, 2011 return to service was a major alteration, rather than a minor alteration. 

V. Immediate Regulatory Consequences Of Being A Major Alteration 

As discussed in depth in the Motion for Summary Judgment, there are significant 

consequences arising out of the major nature of the February 2011 alteration. Respondent does 

not dispute that, if the alteration was a major alteration, all of the consequences outlined do 

follow from that status as a major alteration. See Response at 25. These consequences include 

violations of§ 43.9(d), § 43.7(a), and§ 91.408(a)(l). And, as discussed in Part N above, there is 

no genuine dispute of material fact as to whether the alteration was a major alteration. 

Accordingly, the FAA is entitled to summary judgment on these violations. 

VI. The Alteration Was Not Properly Performed 

As discussed in the FAA's Motion for Summary Judgment and in the multiple supporting 

expert affidavits, the alteration was not properly performed, and thus violated§§ 43.13(a) and 

43.!3(b). 

A. Section 43.13(a) 

Maintenance complies with § 43.13(a) when it is done (I) as prescribed in the 

manufacturer's maintenance manual; (2) as prescribed in instructions for continued 

airworthiness; or (3) using other methods acceptable to the Administrator. 14 C.P.R.§ 43.13(a). 

13 
There is no dispute that neither the manufacturer's maintenance manual nor any existing 

instructions for continued airworthiness describe any alteration process wherein the aluminum 

shells are used to fabricate new aluminum fuel tanks. See Response at 26. Respondent asserts 

that because the manufacturer's maintenance manual does not expressly prohibit any sort of 

welding on non-structural components, this raises a genuine issue of material fact as to whether it 

is permitted. Response at 27. Respondent misreads § 43.13(a). In order to comply with 

§ 43.13(a), the regulation expressly states that the alteration being performed must be one that is 

prescribed in the manual. If the manual is silent concerning a particular alteration, then that 

alteration is not permissible under the regulation. See, e.g., In the Matter ofEmpire Airlines, Inc., 

FAA Order 2000-13 (June 8, 2000) (rejecting a Respondent's argument that it was permitted to 

make a certain type of repair because the manufacturer's maintenance manual did not 

specifically prohibit that sort of repair). There is no "inference" to make, and no issue of fact, 

genuine or otherwise. The same is true for instructions for continued airworthiness. 

As a result, in order for the alteration ofN390TH to be permissible under§ 43.13(a), the 

alteration must have been performed using "other methods, techniques, and practices acceptable 

to the Administrator." 14 C.P.R. § 43.13(a). In general, one can identify that an alteration is 

acceptable to the Administrator because the Administrator (or a representative of the 

Administrator) has issued a document stating that this is the case. Respondent acknowledges this, 

and proffers Advisory Circular 43 .13-IB. Response at 27. First, it should be noted that the 

advisory circular concerns aircraft repair and inspection, but the work at issue here was an 

alteration, not a repair or inspection. More importantly, Respondent seeks to give general 

guidance in that Advisory Circular far more weight than it can bear. Respondent correctly notes 

that AC 43.13-lB discusses performing TIG welding. Response at 27. But Respondent then 

14 
incorrectly leaps to the conclusion that its alteration ofN390TH is permissible. Making this leap 

would require the conclusion that because TIG welding generally is a technique that can be used 

in aviation maintenance, that every single instance of TIG welding must be "acceptable to the 

Administrator," and that the work cannot violate§ 43.13(a), no matter what other circumstances 

are applicable. This position is manifestly incorrect. 

To the extent that it is a question of fact, rather than simply a question of law, that AC 

43-13.1B does not permit any and all alterations using TIG welding, regardless of the 

circumstances, we again see here the dichotomy between the expert affidavits presented by the 

FAA and the lack of any expert testimony provided by the Respondent. The FAA has presented 

the affidavits of three experienced mechanics and aviation safety inspectors concerning the topic 

of whether the alteration of N390TH was "acceptable to the Administrator," with all three 

concluding that it was not. See Attachment GG ~ 25; Attachment HH ~ 25; Attachment JJ ~ 25. 

Contrasted with that, Respondent presents unfounded lay opinions, which have no weight, and 

cannot preclude summary judgment. 

Because the process of fabrication of new fuel tanks out of aluminum shells is not 

prescribed in the manufacturer's maintenance manual or any instructions for continued 

airworthiness, the process can only avoid a violation of§ 43.13(a) if it was "otherwise acceptable 

to the Administrator." Respondent has been unable to identify no document where the 

Administrator (or a representative of the Administrator) has indicated that the process used to 

fabricate fuel tanks out of the existing aluminum shells was acceptable. There is no genuine issue 

of material fact, and the FAA is entitled to judgment as a matter oflaw. 

15 
B. Section 43.13(b) 

Respondents only defense on the question of whether the alteration violated§ 43.13(b) is 

several lay opinions that the alteration returned the aircraft to a condition at least equal to its 

original or properly altered condition with regard to all qualities affecting airworthiness. 

Response at 29. Again, Respondent seeks to present lay opinions on a matter that is a subject for 

expert testimony. Further, these lay opinions are demonstrably false because it is undisputed that 

the welding involved in the alteration failed and resulted in a fuel leak with a few months, a 

failure that could not have occurred with the original bladder tanks. 

There is no genuine issue of material fact on this topic, and the FAA is entitled to 

judgment as a matter oflaw. 

VII. N390TH Was Not In An Airworthy Condition After the February 2011 Alteration 

Because It Did Not Meet Its Type Certificate or Type Design 

As discussed in the Motion for Summary Judgment, N390TH was rendered unairworthy 

by the February 2011 alteration because it did not meet its type certificate or type design. First, 

the aircraft did not meet its type certificate or type design because the type certificate for the B17G expressly states that any repair or alteration of the aircraft must be either (l) done in 

accordance with the applicable military maintenance manual or (2) be approved in advance by 

the CAA (now the FAA). See Attachment AA. Second, the aircraft was rendered unairworthy by 

a plethora of failures such as not using approved data, improper alteration, and using an 

unqualified mechanic to return the aircraft to service. See Motion for Summary Judgment at 28-

29. 

The Response's discussion on this topic ignores all of these reasons. See Response at 29-

32. Respondent correctly notes that the limited type certificate does not state what sort of fuel 

tanks are permissible, and asserts that this means that the FAA cannot possibly demonstrate a 

16 
failure to conform to the type certificate due to an alteration of the fuel tanks. Response at 30. 

This response, however, disregards the express language of the type certificate that limits repair 

and alterations to those contained in the maintenance manual and those approved by the FAA. 

There is no dispute that the maintenance manual does not provide for this sort of alteration, and 

no dispute that this alteration was not presented to the FAA for approval. Therefore, the 

alteration took the aircraft out of conformity with its type certificate. 

The Response also disregards that the applicable airworthiness standard is to conform to 

both type certificate and type design. Especially for the unusual circumstance of a former 

military aircraft with a limited type certificate, the standards to be followed are not limited to just 

the two-page type certificate, but go beyond that, in this case also encompassing the various 

military maintenance manuals for the aircraft. See, e.g., Response Attaclunent I at 51-52 

(deposition testimony of expert Timothy Bourgoine, describing how the military maintenance 

manuals help define the proper configuration of the aircraft). And, as is undisputed, there is 

nothing in the military maintenance manuals for N390TH that permits the sort of alteration 

performed by Respondent. 

Respondent then further details other limitations on its operation of N390TH, such as 

those on the aircraft's special airworthiness certificate and operating limitations, and those 

contained in the exemption that permits it to conduct operations for compensation or hire despite 

Respondent's lack of an air carrier certificate. Response at 31-32. Respondent finds it 

noteworthy that the FAA did not submit these documents to the court, but since the FAA did not 

'allege a violation of those documents, it is unclear what relevance they have, or why the FAA 

would have submitted them. 10 

10 It may be worth noting that Respondent did not comply with the terms of its exemption. For example, the 

exemption requires that the aircraft be maintained in accordance with the "appropriate military technical manuals," 

17 
In sum, the express language in the limited type certificate for the B-170 prohibited the 

sort of homebrew alteration that Respondent performed on N390TH. Respondent fails to even 

mention this point in its Response. Respondent also fails to contest the legal conclusion that its 

other failures rendered the aircraft unairworthy. There is no genuine issue of material fact, and 

the FAA is entitled to judgment as a matter oflaw. 

VIII. N390TH Was Not In An Airworthy Condition Because It Was Unsafe For Flight 

In addition to being unairworthy by not conforming to its type certificate or type design, 

the February 2011 alteration left N390TH in a condition that was unsafe for flight. As explained 

in the FAA's Motion for Summary Judgment and the expert affidavits submitted by the FAA, it 

is known that the aircraft was rendered unsafe for flight by Respondent's alterations specifically 

because of how quickly the welding failed and led to a fuel leak. Motion for Summary Judgment 

at 29-30; Attachment B ~ 31; Attachment GG ~ 30; Attachment HH ~ 30; Attachment JJ ~ 25. 

Respondent, however, ignores this in favor of rattling off a list of items it says are "genuine 

disputes of material fact." Response at 32-33. Not a single one of these is actually a fact subject 

to a genuine dispute that is material to the FAA's allegation that the aircraft was unsafe for flight. 

There is no dispute that the February 2011 welding failed with a few months and resulted 

in a fuel leak. The FAA has presented four expert affidavits that this meant that the aircraft was 

unsafe for flight. Respondent has presented no evidence to the contrary. There is no genuine 

dispute of material fact on this issue, and the FAA is entitled to judgment as a matter oflaw. 

IX. The Violations Described Above All Occurred Even If The February 2011 Work Was 

A Repair 

Although there is no dispute between the parties that this work was an alteration, as 

discussed in the Motion for Summary Judgment, the work was a "major" regardless of whether it 

Response Attachment Tat 3, but as discussed elsewhere neither the February 2011 alteration nor the June 2011 

repair were performed in accordance with the military manuals for the aircraft. 

18 
was a repair or alteration, and all of the violations alleged took place whether the work was a 

repair or alteration. 

X. The June 2011 Maintenance Was Improperly Performed 

Respondent presents virtually no response on the subject of whether the June 2011 

maintenance was improperly performed, simply devoting a paragraph in another section to 

listing "genuine disputes of material facts" as to whether the aircraft was unsafe for flight after 

the June 2011 repair. As before, Respondent's mere iteration of "disputes" does not make them 

genuine disputes of material fact. The problems with this repair were addressed in the FAA's 

Motion for Summary Judgment and in expert affidavits. Motion for Summary Judgment at 32-

33; Attachment B ~ 32; Attachment GG ~ 33-34; Attachment HH ~ 33-34; Attachment JJ ~ 33-

34. In contrast to the expert opinions proffered by the FAA, the Respondent presents nothing but 

vague and unsupported lay opinion. There is no genuine issue of material fact, and the FAA is 

entitled to judgment as a matter oflaw. 

XI. The June 2011 Maintenance Was A Major Repair, But No Form 337 Was Completed 

For It 

Respondent presents no response on the subject of whether the June 2011 repair was a 

major repair. Accordingly, as discussed in the FAA's Motion for Summary Judgment, the FAA 

is entitled to judgment as a matter oflaw on this point. 

XII. No Maintenance Record Entry Was Made For The June 2011 Maintenance Before 

The Aircraft Was Operated 

1n his deposition, Mr. Schneider, Respondent's Director of Maintenance, testified that he 

did not make the maintenance log entry returning N390TH to service until after the aircraft was 

operated and had been lost. Attachment C at 45. According to Mr. Schneider, the maintenance 

log entry, including the documentary reference contained in it, was suggested by David Miller 

19 
during a telephonic conversation after the loss of the aircraft. I d. As discussed in the Motion for 

Summary Judgment, this testimony established a violation of 14 C.F.R. § 43.5(a). 

In its Response, Respondent now asserts that Schneider did execute a return to service in 

a different log book, which was then destroyed along with the aircraft. Response at 5-8. 

A party may not prevent summary judgment by submitting new testimony that 

contradicts prior testimony. McCormick v. City of Fort Lauderdale, 333 F.3d 1234, 1240 n.7 

(2003) (an affidavit submitted solely for the purpose of opposing a motion for summary 

judgment may be disregarded when it conflicts with deposition testimony). Respondent argues 

that Mr. Schneider's new declaration does not contradict his deposition testimony because the 

undersigned did not ask him whether there was a second, previously undisclosed logbook. 

Response at 5-8. This argument fails because Mr. Schneider did not simply testify that he did not 

make the particular June 2011 maintenance log entry before the aircraft was flown. He testified 

that the entirety of the maintenance log entry was suggested to him by David Miller. Attachment 

C at 45. The maintenance log entry describing the June 2011 repair references 4313-1-B, Section 

2, -,r 832, but Mr. Schneider did not even review this document until after the conversation with 

Mr. Miller, after the aircraft had been operated. Id. at 45-46. Based on Mr. Schneider's 

deposition testimony, he could not possibly have executed a logbook entry returning the aircraft 

to service prior to the flight because he did not know what the entry needed to say. 

Respondent cannot create a genuine issue of material fact by submitting declarations that 

contradict prior, sworn deposition testimony. There is no genuine issue of material fact as to this 

issue, and the FAA is entitled to judgment as a matter oflaw. 

20 
XIII. N390TH Was Unairworthy At The Time Of The June 13,2011, Flight 

As asserted in the FAA's Motion for Summary Judgment, the June 2011 repair rendered 

N390TH unairworthy (in addition to the reasons why the February 2011 alteration had already 

rendered it unairworthy). There were two reasons for this. First, that the repair was improper (as 

discussed in part X) and second that it was a major repair that Mr. Schneider could not 

permissibly sign off on. 

As discussed above in Part X, Respondent's sole rebuttal as to whether the June 2011 

repair was improperly completed is an unsupported lay opinion by Mr. Schneider. This does not 

create an issue of material fact as to a matter for detailed expert testimony. 

As noted above in Part Xl, Respondent does not dispute the contention that the June 2011 

repair was a major repair. It does not dispute that Mr. Schneider, who does not hold an 

Inspection Authorization, could not permissibly return the aircraft to service after a major repair. 

And it does not dispute that the failure to have a qualified individual return the aircraft to service 

after a major repair rendered the aircraft unairworthy at the time of the flight. 

The June 2011 repair and improper return to service is further reason why the aircraft was 

unairworthy at the time of the June 13, 2011 flight. There is no genuine issue of material fact on 

this point, and the FAA is entitled to judgment as a matter of law. 

XIV. Respondent's First Affirmative Defense Fails 

In its first affirmative defense, Respondent asserts that it reasonably relied on Mr. 

Schneider and, therefore, was not responsible for its own operational violations. This defense 

fails. As discussed above in Part I and the FAA's Motion for Summary Judgment, Schneider was 

not some outside mechanic, and Respondent's Executive Director was fully involved in and 

aware of all of the decisions made in this case. The legal principles raised by Respondent, and 

21 
discussed below, all operate in the context of an outside entity performing maintenance and 

returning the aircraft to service, and then an unwitting individual operating the aircraft. That 

context is not present here, and so the legal doctrines raised by Respondent have no applicability. 

A. The Doctrine of Reasonable Reliance 

The doctrine of reasonable reliance, upon which Respondent now relies, has no 

application here. First, the doctrine of reasonable reliance is one that exists within the law of the 

National Transportation Safety Board. 

Second, even if the doctrine of reasonable reliance in general applied in civil penalty 

actions in this forum, the doctrine does not apply in this case. 'The doctrine of reasonable 

reliance is a narrow one." Administrator v. Angstadt, NTSB Order EA-5421 (2008). It applies to 

relieve a flight crew member of his regulatory obligations under certain limited circumstances 

where he has no independent obligation (based on operating procedures or manuals) or ability to 

ascertain certain information, and even then only where specialized, technical expertise is 

involved where the flight crew member could not be expected to have the applicable knowledge. 

Id. (citing Administrator v. Fay and Takacs, NTSB Order EA-3501 (1992)). 

The doctrine of reasonably reliance applies exclusively to flight crew members. It is a 

doctrine that applies within the realm of air carriers, where individual flight crew members are 

assigned specific duties under the procedures and manuals of their employer. It does not apply to 

Respondent's operations, and even if it applied to Respondent's operations it would only protect 

the individual pilots, not the company operating the flights. 

Respondent provides no basis for extending the doctrine of reasonable reliance beyond its 

established confines concerning fellow flight crew members. It has no applicability in this case. 

22 
B. Reasonably Should Have Known 

Respondent also cites to Administrator v. Yialamas, which concerned a pilot who 

operated an unairworthy aircraft with a defective component that had been placarded as 

inoperative and then returned to service by an independent mechanic. See Administrator v. 

Yialamas, NTSB Order EA-5111 (2004). Although Respondent does not distinguish it from the 

doctrine of reasonable reliance, Yialamas employs a different standard. 

The general standard being applied in Yialamas is that a pilot is responsible for operating 

the aircraft in an unairworthy condition if he knew, or reasonably should have known, of the 

condition. Although Yialamas is an NTSB case concerning a pilot, there have been FAA Civil 

Penalty cases employing the same standard. See In the Matter ofUSAir, Inc., FAA Order No. 92-

48 (July 22, 1992). 11 

Contrary to Respondent's assertion, its status as a corporate entity does not provide it 

with blanket immunity for operating unairworthy aircraft. See Response at 34 ("Liberty, the 

entity, has no expertise in maintenance matters"). Not only is there no legal support for this 

position, the practical consequences of such a holding would be disastrous, relieving any aircraft 

owner or operator of any responsibility for the maintenance on his aircraft, in direct 

contravention of the Federal Aviation Regulations, which place explicit burdens on aircraft 

operators to ensure the airworthiness of their aircraft and the appropriateness of maintenance 

entries. Contrary to Respondent's assertion, Liberty cannot simply "delegate" its responsibilities 

under the Federal Aviation Regulations. 

11 In re USAir was decided before more recent Administrator decisions that have applied strict liability to air carriers 

for maintenance violations, which is one of the reasons for a lack of more recent Administrator decisions employing 

a "knew or should have known" standard. While Respondent was conducting operations for compensation and hire 

that would normally require an air carrier certificate, it was not legally an air carrier and is not subject to strict 

liability for maintenance violations. 

23 
Here, even taking the facts in the light most favorable to Respondent, a reasonably 

prudent entity in Respondent's position should have known not to operate N390TH. Even if 

Schneider was not an agent such that Respondent is responsible for the underlying maintenance 

violation itself, he was still an in-house mechanic working directly with Respondent's Executive 

Director, and with Cullen Underwood, one of Respondent's pilots. Respondent's Executive 

Director was involved in the decision-making for both the alteration of N390TH and composing 

the text of the resulting maintenance entry. Respondent knew what had been done to the aircraft, 

knew that the alteration was an improvised alteration rather than something in an approved 

document such as a maintenance manual, and knew (or should have known) that the text of the 

maintenance log entry did not accurately reflect what had been done to the aircraft (for example, 

the maintenance log entry made no reference to the fabrication of components). Further, 

Respondent itself has asserted that its Executive Director is an expert on the B-17, and seeks to 

call him to testify as an expert on B-17 maintenance issues. See Respondent's Supplemental 

Response Concerning Motion to Continue Trial Date (filed February 5, 2014), at 3. 12 Respondent 

cannot claim that its Executive Director is an expert on B-17 maintenance issues, that this expert 

runs Respondent's aviation operations, and that this expert was involved in the plans for fuel 

tank alteration and yet at the same time claim that as an organization it has no expertise in 

aviation maintenance such that it is totally at the mercy of outside mechanics. Compare id. with 

Response at 34. A litigant cannot defeat summary judgment by advancing arguments that 

contradict its own pleadings. 

Respondent cites (and the undersigned has located) no case where an operator was 

excused from liability for operating an unairworthy aircraft where the Respondent was 

12 Because Respondent has never disclosed Mr. Fowler as an expert witness prior to this submission, despite expert 

witness disclosures being due a year ago, tbe FAA will object to any attempt by Respondent to call Mr. Fowler as an 

expert witness. 

24 
personally involved in the decision-making as to what work to perform, how to perform it, 

and/or how to record it. 

Even taking the facts in the light most favorable to Respondent, this case does not present 

a situation where a pilot/operator relies exclusively on the work and word of an outside 

mechanic. Respondent knew or should have known that it was operating an aircraft that was 

unairworthy and that had been returned to service without appropriate maintenance entries. Even 

taking the facts in the light most favorable to respondent, Respondent's Executive Director -

who Respondent now identifies as an expert on B-17 maintenance- was directly involved in the 

improper alteration and maintenance log entry, and Respondent cannot escape liability for its 

violations. There is no genuine dispute of material fact, and the FAA is entitled to judgment as a 

matter oflaw. 

XV. Respondent's Second Affirmative Defense Fails 

Respondent presents no independent argument regarding its second affirmative defense, 

instead including it in the discussion of its first affirmative defense. It is undisputed that FAA 

Inspectors Miller or Alderman did not participate in the February 2011 alteration ofN390TH or 

the June 2011 repair. It is undisputed that they did not inspect the work. It is undisputed that the 

FAA has established a procedure for submission of a request for field approval, or a 

determination that field approval is not necessary, and it is undisputed that Respondent chose not 

to use that procedure. See Advisory Circular 43-210 § 302(b). Even assuming, as we must, that 

the conversation with Inspectors Miller and Alderman occurred as asserted by Respondent, there 

is no legal basis for Respondent's contentions that these conversations provide it with carte 

blanche to operate an unairworthy aircraft. The FAA is entitled to judgment as a matter oflaw. 

25 
CONCLUSION 

In February 2011, Respondent's Director of Maintenance, acting in conjunction with its 

Executive Director, performed an unauthorized major alteration on N390TH. After this 

alteration, the aircraft was returned to service by an unauthorized mechanic, no logbook entry 

was made describing the work performed, and no FAA Form 337 was completed. Respondent 

instead chose to treat the major alteration as a minor repair, and proceeded to fly N390TH. 

Within a few months, in June 2011, the improper alteration failed, and Respondent proceeded to 

perform an improper major repair on the leaking fuel tank- again using a mechanic who was not 

authorized and again not completing a Form 337. On its next flight, the aircraft caught fire and 

was lost. 

There is no dispute as to the underlying facts of this case - no dispute as to the work 

performed, no dispute that no Form 337 was ever completed, no dispute that no authorization 

was obtained for a major alteration or repair, and no dispute that the February 2011 alteration 

failed and resulted in the June 2011 fuel leak. Although Respondent seeks to cast its denials of 

the allegations as disputes of fact, the denials it makes are either unsupported, legal arguments 

that cannot preclude summary judgment, or disputes of expert opinions that do not create a 

genuine dispute because Respondent's opinions are issued by laymen, not experts. This case 

presents many distinct issues, but they are almost exclusively legal questions or technical 

questions. Legal questions, such as the regulatory definition of "major alteration" or the 

applicability of the doctrine of reasonable reliance, by definition cannot preclude summary 

judgment. On the technical matters, Respondent has failed to present the sort of admissible 

expert testimony necessary to create a genuine issue of fact, instead relying exclusively on 

previously undisclosed and unsupported lay opinions. Finally, on the handful of issues in this 

26 
case that do not turn on questions of law or expert opinion, such as the role of Respondent's 

Director of Maintenance or whether a maintenance log entry was timely completed before the 

June 13, 2011 flight, Respondent relies solely on newly-executed declarations that contradict 

prior deposition testimony, and such declarations are given no weight in opposing summary 

judgment. 

In sum, Respondent has not presented any evidence that could lead a reasonable finder of 

fact to find in its favor on any issue. It has not raised any genuine disputes of material fact, and it 

has not presented arguments as to why the FAA is not entitled to judgment as a matter of law on 

the undisputed facts of this case. 

WHEREFORE, Complainant respectfully requests that the Judge grant Summary Judgment and 

affirm the Amended Complaint in its entirety, or, alternatively, grant partial Summary Judgment 

to the extent deemed appropriate. 

40- Respectfully submitted this( __ day of February, 2014. 13 

CHRISTOPHER R. STEVENSON 

Attorney 

Office of the Regional Counsel 

13 The FAA Office of the Regional Counsel for the Southern Region was closed due to inclement weather on 

February 12-13, 2014. 

27 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Reply in Support of Motion for Summary Judgment 

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 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 

lChvt m1b m_a ~~tOo Ai 

DONNA STAN\LEY 

Legal Assistant 

Office of the Regional Counsel 

' l. c 1 < 2014 

Dated 

28 
U.S. IlEPARTMENT OF THAN SPORT ATION 

OFFICE OI<' lU:ARIN<;S 

FfmEHA.L AVIATION ADMlN.JSTHA TION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs, 

UBERTY FOUNDATION, 

Respondent. 

Dockct No. Fi\J\·2012·0477 

FAA Case No. 2011GUl30070 

Judge Sullivan 

DECLARATION OF THOMAS DtJJ<:U~MAN 

COMES NOW the Declarant, Thomas Duellman, and states as f{Jllows: 

1. I am over the age of 18 and I understand the obligations of an oath. 

2. I am cmrently employed with the Federal Aviation Administration as an Air Carrier 

Maintenance Specialist at the Great Lakes Regiona.J Office in Des Plaines. Illinois. 

3. I have served at the Federal Aviation Administration as an Airworthiness/Maintenance 

Inspector for over 20 years. 

4. My aviation maintenance career began in 1959 when! served as a crew chief in the Air 

Force, working on F·IOJ and B-52 aircraft. Since leaving the Air Force. I have held a Mechanic 

Certificate with Airframe nnd Powerplant Ratings since 1968, and have received the Charles 

Taylor Award. Prior to my service with the FAA, 1 worked in the private aviation industry, 

starting as a senior mechanic for a 14 Cf.R. Part 121 air carrier, <md later serving as the Director 

of Maintenance or Chieflnspeeior tor several 14 C.F .R. Pmt l carriers. 1 also served as a 

Designated Ainvorthiness Representative. 1 have established and run a 14 C.F.R. Part 145 repair 

station. Both before and after joining the FAA! have been active in the restoration of a variety of 

warbirds, including an A·36, P·51, F·8F, B-25, M.ig·21. T-34, T·28, and B·l 

5. I am familiar with the facts crfthis case, concerning the work pcri{Jmlcd on N390TH's 

fuel system in late 2010 through early 20 l.l, culminating in a Febrmn·y 24, 20! I, return to 

service, and also concerning the June !3. 2011, fuel leak in one ofN390TH's new fuel tanks. 

The material I have reviewed includes the deposition ofthe mechanic who performed the work 

in question, photographs ofthe winter 2010-ll work in progress., photo!_traphs video of the 

June 201l fuel leak, appHcable portions oflhe maintenance records fbr N390TH. applicable 

GOVERNMENT 

~y 
portions oftbc B-!7G structural repair handbook, maintenance and erection handbook, and parts 

list, and certification and registration information for N390TH. 

6. 1 am familiar ;vith the Federal Aviation Regulations and policy documents issued by the 

Administrator t1oncerulng repairs, alterations, m.ajor repairs, m(\jor alteraiions, and what sorts of 

work on aircraft fall into which category. 

7. The aircraft involved in this case is a Boeing B-17G, serial number 44-85734, registered 

as civil aircmft N390Tlt 

8. N39(ffH was built with fuel tanks consisting of six thick, selJ~sealing bladder fuel tanks, 

three in each wing. Each bladder fuel tank wa~ installed in an aluminum shell thai surrounded the 

bladder tanks and was altached to the interior of the wing by straps. i\ll attachments between the 

lhel tanks and the rest ofthe fuel system were tixed directly into the bladder tlteltanks, In order 

to accommodate the straps and various attachments and 11ttiugs, numerous holes were present in 

the aluminum shells. Additionally, one end of the aluminwn shells was removable, so it could be 

taken on or off the bladder fuel tanlc 

. 9. ln general terms, the work on the fuel system ofN390TH that culminated in the February 

24, 201 I, retm·n to service consisted of removing the bladder fuel tanks entirely, fabricating a 

tiller neck attaeh point, a fuel boost pump attach point on four of the six lite! tanks, a fttel 

quantity transducer mounting point, .Jl!el system line attachments and plates to seal the t(Jrmer 

fue.l bladder mounting points, welding those attachments and plates onto the aluminum shell, 

welding shut the removable end of the shell, and connecting each of the six shells into the 

existing fuel system as fuel tanks. 

lO. Although some B-!7 aircraft were manuti1cturcd with solid metallic tanks, N390TH was 

uot. Further, no B-17 wa~ manufactured with a solid tm,tallic tank consisting of an aluminum 

shell with holes that had been plugged by welding a vmiety offabricated attachments and p latcs 

tn the shell, m a manufactured with a removable end that was then welded closed. 

II. This work was an alteration, not a repair, because it changed the design of the aircraft and 

its components, and was not simply a restoration of the aircra!l to an undamaged state. 

12. The alteration was a major alteration. As stated in section l.l of the Federal Aviation 

Regnlations (Definitions): 

Major alteration means an alteration not listed in the aircraft. aircran engine. or 

propeller specifications·~""" 

(l) That might appreciably affect weight, balance, structural strength, 

performance, powerplant operation, !light characteristics, or other qualities 

affecting airworthiness; or 

(2) That is not done according to accepted practices or cannot he done by 

elernentary operations, 
13. There are several reasons why the alieration was a m(\jnr alteration. Within fimr months 

of the alteration, the welding cracked in one of the ne.w tanks, resulting in a fuel leak. This was 

an appreciable eil'ect on a quality affecting the airworthiness of the aircwft. Thus, the altcradon 

was a major alteration. 

14. Additionally, even setting aside the fuel leak, the removal of the bladder l'u.el tank could 

have had an appreciable effect on the airworthiness of the aircraft and its fhel system. The 

alteration increased the fuel capacity of the aircraft, afieeting weight and balance and possible 

stresses placed on the wing structure. The new aluminum fuel tanks were susceptible to 

vibrational stresses in ways that a bladder tlrel tank was not. An aluminum fuel tank would not 

respoud the sLmJe way to the stresses of the in-flight motion ofthousands of pounds of aviation 

t!Je! as a semi-rigid bladder tank would baffles should have been incorporated into any hardshell fuel tank design fbr tanks of these sizes. The newly fabricated fixtures and atTachments may 

or may not have been of equal quality with the components they were replacing. The fabricated 

tixtures and attachments, even assuming that il1ey were of equal quality to the parts they were 

replacing, had changed from being attaeherl to the semi-rigid bladder tank to being attached to 

the rigid aluminum tank, which could impact how they responded to stress during Hight. All of 

these problems are exacerbated because the aluminum tanks were not simply solid, formed 

aluminum tanks, but had been extensively welded, introducing numerous potential weaknesses 

into the system- as can be seen by the cracking that developed in one of the fuel tanks in less 

than four months, the weld seams are a source of structural weakness and can make the tank 

more susceptible to issues with vibration and stress. Welding can also increase the possibility of 

coJTosion. The weaknesses that can be introduced by welding are highlighted by the B· 17G 

Structural Repair Ihmdbook's prohibition on welding aluminum structural members .. while the 

fuel tank is not a structural component, and welding a fuel tank is permissible under approprime 

circumstances, the same potential weaknesses in the resulting component are still present and 

must be accounted for. 

15. Also, any alteration ofit fuel tank is a major altermion. FAA Order 89()0.1 provides 

extensive guidance to Aviation Safety Inspectors in th.e perHnmance of their duties. One ofthe 

possible duties of tm AS! is field approvals of major alterations. Accordingly, one of the job nids 

in the 8900.1 is a list of major altewtions, and whether the required approval can be a tield 

approvaL must be an engineering approval, or requires a Supplemental'I'ype C'ertilicate. On the 

list of major al!erations is any change in a permanent fud tank or installation of a new fud tank. 

!6. Further, the fabrication of ne'"' fuel tanks out of the aluminum shells was a major 

alteraiion because litbricating components and welding are not an elementary operation. 

17. l amtwvare ofthe provision in Appendix A of Part 43 of the Federal Aviation Regulations 

that lists changes in the basic design of a fuel system as an example of a major alteration. The 

replacement of the bladder fuel tanks with fahrlcated alluninum fuel tanks was a change .in the 

basic design of the fuel system. While someone could mechanically list dozens of components 

that were not replaced in replacing the fuel tanks, this does not mean that the replacement of the 

fuel tanks was Mt a change in the basic design of the fuel system. Fuel tanks, and their ability to 

perthnn properly, arc absolutely vital to the functioning of a fuel and '"not 
the least because a fuel leak can have disastrous consequences J~x an aircraft The importance of 

the fuel tanks to the fuel system can be seen in guidance provided by the Administrator to FAA 

inspectors in the 8900J, where all alteralions to fuel tanks are classi!ied as major alterations. 

18. Additionally, based on my experience as a mechanic and an FAA employee, iT is my 

opinion that fahricating a fuel tank out of an aluminum shell by welding on attachments and 

m.etal plates to dose openings is nnt an accepted practice, as that term is used in the FAR l.l 

definitions of majnr alteration and major repair. 

I 9. Each of the reasons described above, standing alone, would render the alteration a major 

alteration. 

20. The work performed that culminated in the February 24, 2011, return to service was an 

alteration, not a repair. However, if it was a repair, it would be a major repair. As stated in 

section Ll of the Federal Aviation Regulations (Definitions): 

Major repair means a repair: 

( 1) That, if improperly done, might appreciably af1i::et weight, balance, structural 

strength, perfbrmancc, powerplant operation, flight characteristics, or other 

qualities affecting airworthiness; or 

(2) That is not done according tn accepted practices or cannot be done by 

elementary operations. 

21. The distinction between a majcn· repair and minor repair largely tracks the distinction 

between a mll]or and minor alteration. As such, all but one of the reasons discussed ahow as to 

why the altcnttion was a major alteration arc also reasons why this would be a major repair, if it 

had been a repair. 

22. The one exception is regarding the example in Appendix A about how a change in the 

basic design of the fuel system is a m<uor alteration. This example is not applicable to repairs. 

However, Appendix A also provides that each and every repair oJ a fuel tank is a major repair. 

Each of the reasons identified above. standing alone, would render the work a major 

repair, if it was a repair. 

24. The alteration ofN390TH is not described in any maintenance mmmal or instructions lbr 

continued airworthiness for the B-170. 

25. The methods, techniques, and practices used by Respondent in altering the aircrall. arc not 

acceptable to the Administrator. Respondent's alteration introduced numerous potential -and 

actual- weaknesses into the aircraft, and did not include the sort ofinsp<t~tions necessary to 

verify that the new fud tanks were capable of withstanding the stresses of flight. 
26. The alteration ofN390TH was not done in such a way as to restore the condition of the 

aircraft to at least its original or properly altered condition with respect to resistance to vibration 

and deterioration and other qualities a!Tecting a.invorthiness. Ali of the Hrctors mentioned in 

paragraph 1.4 are pertinenl her\!. The extensive wefding on the new fuel tanks made them 

vulnerable to the stresses of f1ight in ways that the original tanks were not. and this resulted in 

the rapid failure of one of the tanks. 

27. N390Uf was unairworthy because it did not confonnto its type certificate or type 

design. TI1e aircraft did n\)t conform to its type certificate or type design because the B-l7G's 

design never contemplated taking an aluminum shell with munerous holes in it, fabricating 

components and welding them onto that shell, and then using it as a fuel tank. N390TH's 

specification sheet which is now the type certificate for the aircraft. requires that ft.lr repairs or 

modifications not listed in the aircraft's maintc11ance manuals, the repair or modification must 

first be presented to Civil Aeronautics Administration (now the Federal Aviation 

Administration). 

28. The aircraft did not contbrm to its type certit1cate or type design because it had not been 

restored to its original or properly altered condition. The aircraft did not conform toils type 

ccrtlJlcate or type design because the alteration performed was not an approved or acceptable 

form of alteration. 'fhe aircraft did not cont(Hm to its type ccrtillcate or type design because Mr. 

Schneider did not have the Inspection Authorization required to retum the aircraft to service alter 

a major alteration. The aircraft did not eonf(>rm to its type certificate or type design because no 

FAA Porm 337 was executed for the major alteration. The aircraft did not confom1 to its type 

certificate or type design because no approved technical data was used in performing 1J1c 

alteration. 

29. Each of the above reasons, standing alone, meant that N390TH was unairworthy because 

it did not conform to it> type certitlcatc or type design. 

30. The aircraft was unainvorthy alter the February 24, 201 l, alteration because it was nm in 

a condition for safe operation, Improper fuel tanks present numerous hazards to an aircraft--

most notably, leaking fuel can result in loss of engine power and is also a severe tire hazard. As 

described by .Mr. Schneider in his deposition, the fuel leak that occurred in Jtme 20 11 was a 

direct result of the February 24, 20 I l alteration of the aircraft.. !l1c reasons described above, 

welding can introduce numerous weaknesses into an aluminum component and the safety of 

sucb a heavily welded fuel lank was always questionable. That the welding failed so quickly 

demonstrates that the potential weaknesses had,. in fact, been introduced. It is my opinion that, 

because of the improper alteration, N390TH was not in a condition safe operation aHer the 

installation of the aluminum fuel tanks. 

31. l have reviewed the maintenance records fbr N390TH pertaining w tl1e February :24, 

20 II, alteration. No FAA Fonn 337 was completed for this worlc 

32. I have reviewed Mr. Schneider's description of the maintenance work performed on 

June 201 l fuel leak. The maintenance performed was not contained in aircrall maintenance 

mamml. The maintenance perfonned 'vas not contained in any instructions for cn:ntrnm~d 
airworthiness for the aircraft. The maintenance perfom1ed was not otherwise accepta:ble to the 

Administrator. 

33. The June 20 J 1 maintenance on the fabricated fnel tanks was noi otherwise acceptable to 

the Administrator due to the nature ofthe component being repaired. ·rhe lhcl tank was an 

unapproved part that should never have been installed on the aircraft. There were no methods, 

techniques, or practices acceptable to the Administrator for repairing the fuel tanks because the 

fuel tanks themselves were unacceptable. 

34. In addition, even if the nature ofthe fuel tanks was set aside, the repair would not have 

been perfmmed using methods, techniques, or practices acceptable to the Administrator. As Mr. 

Schneider indicates in his deposition, the work could have been done in a less risky manner, but 

he chose to opt for a quick fix in order to meet a schedule rather than the safe, proper repair. The 

fuel tanks should have been removed from the aircratl for tlre repair, but were not Sealant should 

have been applied from the inside, but was instead applied from the outside of the tank < 

applying the sealant to the inside of the tank ensures that the pressure of the fuel in the tank 

serves to push the sealant into any cracks, rather than push the sealant out .Mr. Schneider 

performed only a limited visual inspection on the repair through the boost pump access door, but 

the inspection should have been more extensive (for example, the fuel system should have been 

pressurized and the boost pumps should have been activated). 

35. In addition to the unairvwrthiness caused by the February 24,2011, alteration, N390TH 

was unairworthy when it operated on June 13, 2011, because oflhe improper mainten~ncc 

perfonned by lV!L Schneider. Not only was the repair improperly perlhnncd, it was also a repair 

that was not listed in the maintenance manual ~md was there lore not permitted under the 

aircratl's type certificate< Further, it was a major repair and Mr. Schneider did not hold the 

Inspection Authorization required to return the aire.raft to service after the repair, and no FAA 

Form 337 was executed. 

Further declarant sayetll naught. 

! . Thomas Duellman, dedare this of February. 20 !4, under penalty of pmjury 

that the above statements are tme and correct.