U.S. DEPARTMENT OF TRANSPORTATION OFFICE OFHEARINGS FEDERALAVIATION ADMINISTRATION

FEDERALAVIATION ADMINISTRATION, Complainant, 

# RECEIVED FE3 202014 

## HEARING DOCKET

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

REPLY IN SUPPORT OF MOTION FOR SUMMARYJUDGMENT The FAA hereby replies in support ofits Motion for Summary Judgment in this case. Respondent's Response in Opposition to the Motion for Summary Judgment discloses no genuine issues ofmaterial fact, and the FAAis entitled tojudgment as amatter 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 ofmaterial 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

1As indicated in the FAA'sMotionfor SummaryJudgment, InspectorDuellman was hospitalized at the time that motionwas submitted, and he wasunable to complete an affidavit atthat time. Inspector Duellman's expert declarationis, as aresult, attachedto this Reply. 1declarations offering opinions on themaintenance and alterations itperformed onN390TH, these individuals are notexperts, but rather laywitnesses. Theywere 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 opportunityto depose the witnesses on the opinions now presented. Respondent repeatedly cites to the declarations ofthese 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 offact 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 summaryjudgment, and then credit unsupported lay opinions as to the meaning ofthe Federal Aviation Regulations and as to the technicalities of

2 Expert witness disclosures were due in February 2013. 3 Respondent notes that summaryjudgmentmotions, andthe oppositions to such, canbe supportedbymaterialsuch as affidavits or declarations- that would notbe admissible at trial. See Response at 2. However, while Rule 56( c) permits the submission ofdeclarations or affidavits, it also expresslyprovides that this evidence cannot be informationthat couldnotbe submittedininan appropriateform at trial. Fed.R.Civ.Pro. R 56(c)(2). Therefore, while the factual statements in the declarations ofRespondent's lay witnesses maybe considered for purposes of summaryjudgment, their lay opinions ontechnical matters shouldnotbe considered. Notonly are these layopinions ontechnicalmatters, but these are also opinions that were never disclosed during discovery, despite discoveryin this case having lasted for approximately a year and a half.
2aviation maintenance. In short, Respondent presents no genuine issue ofmaterial fact sufficient to preclude summaryjudgment. For convenience, the numbering ofsections in this Replywill follow the numberingin the FAA's originalMotion for SummaryJudgment. Exhibit identification will continue from that those attached to the FAA's original Motion for SummaryJudgment. ARGUMENT I. Respondent Is Responsible Forthe Actions ofitsDirector ofMaintenance 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 respondeatsuperior. Respondent denies without explanation that Schneider committed any maintenance violations, Response at 34, butprovides no basis for this denial, and does not challenge the Order ofSuspension entered against Schneider. In light ofthe Order ofSuspension 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 enumeratedin that final Order. Respondent also contends that, regardless, it was not responsible for Schneider's violations because he was not its agent. In support ofthis contention, Respondent submits the declaration ofRaymond 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 ofsummary judgment, this assertion contradicts the prior sworntestimony givenbyMr. Fowler.

4 Mr. Schneider's declaration is silent onthis 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. GreatAmerican 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 ofmaterial fact. See, e.g., id.; McCormickv. City of FortLauderdale, 333 F.3d 1234, 1240 n.7 (2003). Inhis 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 ofMaintenance, 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 anagent when it comes to performingmaintenance. 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 OrderNo. 2003-10 (2003). Respondent cannot create a genuine issue ofmaterial fact bysubmitting a declaration that contradicts prior deposition testimony. There is no genuine issue ofmaterial fact on this issue, and the FAAis entitled tojudgment as amatter oflaw. II. TheWork onN390TH That Concluded InThe February24, 2011, Returnto Service Was AnAlteration Throughout this case, including in the Motion for Summary Judgment, the FAA has maintained that the work performed onN390TH that culminated inthe February 24, 2011 return

4to service was an alteration. Respondent has, throughout this case, refused to state whether it believes the work was an alteration or arepair. 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, inthe Response, Respondent conducts its entire discussion ofthe subject in terms ofwhether the work was a major or minor alteration. Response at 12-25. Accordingly, although Respondentrefuses to explicitlyaddress the issue, there is no disputebetween the parties that this workwas 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 ofthe 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 workwas actuallyperformed. In its efforts to defeat summaryjudgment, 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 ofthe work performed." Response at 8-9; Response AttachmentD '1[3.

5Mr. Schneider's personal op1mon that the log entry accurately reflected the work performed is irrelevant, and does not create a genuine issue ofmaterial fact. There is no dispute

as to the text ofthe entry. Thereis no dispute as to the workperformed. 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 ofwhether 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 simplyrepaired and reinstalled. See Attachment Q at 4. However, that was notthe onlyinaccuracyinthe log entry. For example, the log entryrefers 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 ofnew attachments and mountings. Attachment Cat 17, 26. Respondent then violated § 91.407(a)(2) by operating the aircraft without the maintenance entryrequiredby§ 43.9. Furthermore, it is undisputed that Respondent knew the nature ofthe workperformed on N390TH, not only through its Director ofMaintenance Rodney Schneider, but also through the direct involvement ofits 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 Evenifit was accurate, there would still notbe a genuine issue ofmaterial fact, because new fuel tanks were fabricated, and as discussed elsewhere there is no genuine dispute ofmaterial fact as to whether this was arepair. 6The actual work performed on N390TH is undisputed. The text ofthe February 24, 2011 maintenance log entry is not disputed. There is no testimony or other evidence to bepresented at hearing onthis subject; no evidence to bepresented that will change the text ofthe log entry, the nature ofthe work performed, or the disparity between the two. There is no genuine dispute of material fact as to this point, and the FAA is entitledtojudgment as amatter oflaw. IV. The February24,2011, Alteration Was A MajorAlteration, NotA Minor Alteration In the Motion for Summary Judgment and the multiple attached expert affidavits, the FAA presented a plethora ofreasons 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 summaryjudgment. It makes legal arguments, but these legal arguments are flawed. And it presents unsupported opinions from lay witnesses on the technicalities ofaviation maintenance, which do not serve to raise a genuine issue ofmaterial fact when contrasted with themultiple expert opinions presentedbythe FAA. As an initial matter, it is worth noting that Respondent spends sevenpages 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" ofmajor alteration is to be found in an appendix to Part 43. Respondent presents no basis for its assertion that the list of examples ofmajor alterations contained in Appendix A to Part 43 is the "definition" ofmajor alteration, in contradictionto the explicit and plain language ofthe regulations. Additionally, Respondent fails to address the guidance issued bythe 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).

7A. Appendix A to Part 43 However, even looking only at Appendix A to Part 43, the alteration was a maJor alteration. The relevant example ofa 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 ofthe experts noted that the work done on N390TH was a change in the basic design ofthe fuel system. Attachment B**~** 23; Attachment GG**~** 18; Attachment HH**~** 18; Attachment JJ**~** 18. Respondent assets that the Judge must hear the testimony ofthe 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 isno dispute as to what work was done on the aircraft. What is in dispute is the legal and maintenance significance ofthe work being done. On that point, the unfounded lay opinions ofMr. 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 ofthe work performed. Again, there is no dispute as to the nature ofthe 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 ofaviation 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 ofthe situation and provide the Judge andtheparties with expert knowledgebased on those facts (which, in this case, are undisputed).

8Respondent 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 ofthe fuel system inthis B-17 could not have been a "change in thebasic design." This argument is flawed for a variety ofreasons. Respondent is correct that

some B-17 aircraft were originallymanufactured 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 ofthe 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 ofaluminum 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 originallymanufactured with. One cannot simply assume equivalencebetween all aluminum fuel tanks, regardless oftheir qualityor method offabrication. Additionally, contraryto 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 onlyreferences the affidavit ofTimothyBourgoine when discussing this subject, criticizing that affidavitfor only stating a "belief' about the original tanks. Response at 18. However, Mr. Bourgoine's affidavit does not offer any opinionabout what fuel tanks N390THwas originallymanufacturedwith. Rather, he describes the kind offuel tanks that were installed on N390THpriorto the alteration. See AttachmentB**~** 8. As noted above, the otherexpertwitnesses were able to identifythe nature ofthe original fuel tanks from N390TH basedonthe serial number ofthe aircraft. 9B. Section 1.1- Definitions While Respondent primarily rests its legal arguments on ignoring the regulatory definition ofa major alteration in favor ofthe list ofexamples in Appendix A to Part 43, it does eventually acknowledge the existence ofthe 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 ofexamples contained inAppendix 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 summaryjudgment works. Issues offact are taken in the light most favorable to the non-moving party. This is an issue oflaw. Itis not an issue ofevidence to be decidedbytheJudge afterhearingwitnesses, it is

an issue oflaw 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 inAppendix 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 logicallybereadharmoniouslytogether," and that therefore the definition is § 1.1 should beignored.7 Respondent seeks to manufacture a "defmition," claimthat it is inconsistentwiththe actual definition, and then throw out the actual definition because it allegedly conflicts with the manufactured "definition." This result wouldbe absurd, and canbedismissed.

7 Respondent correctlynotes that§ 43.9(d) gives a referenceto AppendixB ofPart43, but does notrefer to§ 1.1. It is unclear why Respondent feels that a reference to Appendix B, whichconcerns the type ofdocumentation required for major repairs and major alterations, has anyrelevance as to whether the definition in§ 1.1 or the list ofexamples inAppendix A is the definition ofmajoralteration. 10Respondent then contends that even under the actual definition ofa 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

- simplyignores the language of§ 1.1. An alteration is minor ifit 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 notthe alterationwas a major alteration in terms of whetherthe alterationmighthave affected the airworthiness ofthe aircraft. Response at 20-25. Further, Respondent again misunderstands the nature ofexpert 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 ofexpert 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 subjectto vibrational stresses in ways that abladder 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 opinionpresented byRespondent is that ofametallurgist. Mr. Genculu has no experience in aviation. His opinions concern (1) the nature ofthe welding materialused and (2) whetherhe could determinebased onanexaminationofselectedportion ofthe burned-outwreckage ofN390TH whethertheprofferedweldjointshad failed priorto the fire. Response AttachmentK. The former opinionis irrelevant, as the welding material used is not indispute. The second opinion is irrelevant for several reasons, but mostimportantly because, regardless ofthe conditionofthe selected segments ofthe fuel tanks examinedbyMr. Genculu, and whether anyofthose weldjoints failed, it is undisputedthatthere was a weldjointfailure, whichcaused the fuel leakinJune 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 exampleis 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 bythose who performed it.9 

### A third example is that Respondent criticizes the expert affidavits for "mistakenlytalk[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 bythe inches-thick bladder liners would now be occupiedbyfuel. The FAA has presented expert affidavits from maintenance personnel with decades of experience performing maintenance and decades ofexperience 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 summaryjudgment.

9 Indeed, ifthere were any new, material details ofthe work performed that was contained in the declarations ofMr. SchneiderandMr. Underwood, this would meanthat the Respondenthadcommitted discovery violationsby withholding these details until now. 

### 12The question ofwhetherthe definition of"major alteration" contained in 14 C.F.R. § 1.1 is the definition ofmajor alteration is a question oflaw. The question ofwhether the alteration of N390TH fell within that defmition (or any other definition) is a question of law and expert opinion. Questions oflaw cannot defeat summaryjudgment, and Respondent has presented no expert testimony that could generate a genuine issue ofmaterial fact. Accordingly, the FAA is entitled to summaryjudgment on the question ofwhether the work culminating in the February 24, 2011 return to service was amajor alteration, ratherthan aminor alteration. V. Immediate RegulatoryConsequences OfBeingA MajorAlteration As discussed in depth in the Motion for Summary Judgment, there are significant consequences arising out ofthe major nature ofthe 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 inPart N above, there is

no genuine dispute of material fact as to whether the alteration was a major alteration. Accordingly, the FAAis entitled to summaryjudgment onthese violations. VI. The AlterationWasNotProperlyPerformed As discussed inthe FAA'sMotionfor SummaryJudgment and inthe multiple supporting expert affidavits, the alteration was not properly performed, and thus violated§§ 43.13(a) and 43.!3(b). A. Section43.13(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 othermethods acceptable to theAdministrator. 14 C.P.R.§ 43.13(a).

13There 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 ofmaterial fact as to whether it is permitted. Response at 27. Respondent misreads § 43.13(a). In order to comply with § 43.13(a), theregulation expressly states that the alterationbeingperformed mustbe one that is prescribed in the manual. If the manual is silent concerning a particular alteration, then that alteration is not permissible undertheregulation. See, e.g., In theMatter ofEmpireAirlines, 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 ofrepair). There is no "inference" to make, and no issue offact, genuine or otherwise. The same is true for instructions for continued airworthiness. As a result, in order for the alteration ofN390TH to bepermissibleunder§ 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 thatthis 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 canbear. Respondent correctly notes that AC 43.13-lB discusses performing TIG welding. Response at 27. But Respondent then

14incorrectly leaps to the conclusion that its alteration ofN390THis permissible. Making this leap would require the conclusion that because TIG welding generally is a technique that can beused in aviation maintenance, that every single instance ofTIG 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 manifestlyincorrect. To the extent that it is a question offact, rather than simply a question oflaw, 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 ofany expert testimony providedby the Respondent. The FAA has presented the affidavits ofthree 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 cannotpreclude summaryjudgment. 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 violationof§ 43.13(a) ifit was "otherwise acceptable to the Administrator." Respondent has been unable to identify no document where the Administrator (or a representative ofthe Administrator) has indicated that the process used to fabricate fuel tanks out ofthe existing aluminum shells was acceptable. There is no genuine issue ofmaterial fact, and the FAA is entitled tojudgment as a matter oflaw.

15B. Section43.13(b) Respondents only defense on the question ofwhether 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 experttestimony. Further, these layopinions 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 nothave occurredwith the original bladdertanks. There is no genuine issue of material fact on this topic, and the FAA is entitled to judgment as amatter oflaw. VII. N390TH Was Not In An Airworthy Condition After the February 2011 Alteration BecauseItDidNotMeet Its Type Certificate orType 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 AttachmentAA. Second, the aircraft was rendered unairworthyby

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 ofthese reasons. See Response at 29- 32. Respondent correctly notes that the limited type certificate does not state what sort offuel tanks are permissible, and asserts that this means that the FAA cannot possibly demonstrate a

16failure to conform to the type certificate due to an alteration ofthe fuel tanks. Response at 30. This response, however, disregards the express language ofthe 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 notprovide for this sort ofalteration, and

no dispute that this alteration was not presented to the FAA for approval. Therefore, the alteration tookthe aircraft out ofconformitywith 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 alimited type certificate, the standards to befollowed are not limited tojust 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 performedbyRespondent. Respondent then further details other limitations on its operation ofN390TH, 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 noteworthythat the FAA did not submit these documents to the court, but since the FAA did not 'allege a violation ofthose documents, it is unclear what relevance they have, or why the FAA wouldhave submittedthem. 10

10 Itmaybe worthnoting that Respondent did notcomplywith the terms ofits exemption. Forexample, the exemption requires that the aircraft be maintained in accordance with the "appropriate military technical manuals,"
17In sum, the express language in the limited type certificate for the B-170 prohibited the sort ofhomebrew 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 ofmaterial fact, and the FAAis entitledtojudgment as a matter oflaw. VIII. N390THWasNotIn AnAirworthy Condition Because ItWasUnsafeForFlight 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 bythe FAA, it is known that the aircraft was rendered unsafe for flight by Respondent's alterations specifically because ofhow quicklythe welding failed and led to a fuel leak. Motion for SummaryJudgment at 29-30; Attachment B**~** 31; Attachment GG**~** 30; Attachment HH**~** 30; Attachment JJ**~** 25. Respondent, however, ignores this in favor ofrattling off a list of items it says are "genuine disputes ofmaterial fact." Response at 32-33. Not a single one ofthese is actually a fact subject to a genuine dispute that is material to theFAA's allegationthat the aircraft was unsafe for flight. There is no dispute that the February2011 welding failed with a few months andresulted 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 ofmaterial fact onthis issue, andthe FAAis entitled tojudgment as amatter oflaw. IX. The Violations Described Above All OccurredEvenIfTheFebruary2011 WorkWas A Repair Although there is no dispute between the parties that this work was an alteration, as discussed inthe Motion for SummaryJudgment, the work was a "major" regardless ofwhether it Response AttachmentTat 3, but as discussed elsewhere neitherthe February 2011 alterationnorthe June 2011 repair were performed in accordance with the militarymanuals for the aircraft.
18was a repair or alteration, and all ofthe violations alleged took place whether the work was a repair or alteration. X. The June 2011 MaintenanceWas ImproperlyPerformed 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 ofmaterial 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 ofmaterial 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 contrastto the expert opinions profferedbythe FAA, the Respondent presents nothingbut vague and unsupported lay opinion. There is no genuine issue ofmaterial fact, and the FAA is entitled tojudgment as amatter oflaw. XI. The June 2011 MaintenanceWas A Major Repair, But No Form 337 Was Completed For It Respondent presents no response on the subject ofwhether the June 2011 repair was a majorrepair. Accordingly, as discussed in the FAA's Motion for SummaryJudgment, the FAA is entitledtojudgment as amatteroflawonthis point. XII. No Maintenance Record Entry Was Made For The June 2011 Maintenance Before TheAircraftWas Operated 

### 1n his deposition, Mr. Schneider, Respondent's Director ofMaintenance, 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

19during a telephonic conversation after the loss ofthe aircraft. Id. As discussed in the Motion for SummaryJudgment, this testimony established a violation of 14 C.F.R. §43.5(a). In its Response, Respondent now asserts that Schneider did execute areturn to service in

a different logbook, whichwas then destroyed along withthe aircraft. Response at 5-8. A party may not prevent summary judgment by submitting new testimony that contradicts prior testimony. McCormick v. City ofFort 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 becauseMr. Schneider did not simplytestifythat he did not make the particular June 2011 maintenance log entrybefore the aircraft was flown. He testified that the entirety ofthe maintenance log entry was suggested to himbyDavidMiller. 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 servicepriorto the flight becausehe did not know whatthe entryneeded to say. Respondent cannot create a genuine issue ofmaterial fact bysubmitting declarations that contradictprior, sworn deposition testimony. There is no genuine issue ofmaterial fact as to this issue, and the FAAis entitled tojudgment as a matter oflaw.

20XIII. N390THWasUnairworthyAt TheTimeOfTheJune 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 offon. As discussed above in Part X, Respondent's sole rebuttal as to whether the June 2011 repair was improperly completed is an unsupported lay opinionbyMr. Schneider. This does not create an issue ofmaterial fact as to amatter for detailed expert testimony. As noted above inPartXl, Respondent does notdispute the contentionthat the June 2011 repair was a major repair. It does not dispute that Mr. Schneider, who does not hold an InspectionAuthorization, couldnotpermissiblyreturnthe aircraft to service after a majorrepair. And it does not dispute that the failure to have a qualified individualreturnthe aircraft to service after amajorrepairrendered the aircraftunairworthy at thetime ofthe flight. TheJune 2011 repair andimproperreturnto serviceis further reason whythe aircraft was unairworthy at the time ofthe June 13, 2011 flight. There is no genuine issue ofmaterial fact on this point, and the FAAis entitled tojudgment as a matter oflaw. XIV. Respondent's First Affirmative DefenseFails 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 inPart I and the FAA's Motionfor SummaryJudgment, Schneider was not some outside mechanic, and Respondent's Executive Director was fully involved in and

aware ofall ofthe decisions made in this case. The legal principles raised by Respondent, and

21discussed 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 notpresenthere, and so the legal doctrines raisedbyRespondent have no applicability. A. The Doctrine ofReasonableReliance The doctrine of reasonable reliance, upon which Respondent now relies, has no application here. First, the doctrine ofreasonable reliance is one that exists within the law ofthe National Transportation SafetyBoard. Second, even ifthe doctrine ofreasonable 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). Itapplies to relieve a flight crew member ofhis regulatory obligations under certain limited circumstances where he has no independent obligation (based on operating procedures or manuals) or abilityto 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. (citingAdministratorv. Fay and Takacs, NTSB OrderEA-3501 (1992)). The doctrine ofreasonably reliance applies exclusively to flight crew members. It is a doctrine that applies within the realm ofair carriers, where individual flight crew members are assigned specific duties under the procedures and manuals oftheir employer. Itdoes not apply to Respondent's operations, and even ifit applied to Respondent's operations it would onlyprotect the individual pilots, not the company operating the flights. Respondent provides no basis for extending the doctrine ofreasonable reliance beyond its established confines concerning fellow flight crew members. Ithas no applicabilityinthis case.

22B. 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 ofreasonablereliance, Yialamas employs a different standard. The general standardbeing applied in Yialamas is that apilot is responsible for operating the aircraft in an unairworthy condition ifhe knew, or reasonably should have known, ofthe condition. Although Yialamas is an NTSB case concerning a pilot, there have been FAA Civil Penalty cases employing the same standard. See In theMatter ofUSAir, Inc., FAA OrderNo. 92- 48 (July22, 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 ofsuch aholding wouldbe 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 oftheir aircraft and the appropriateness of maintenance entries. Contrary to Respondent's assertion, Liberty cannot simply "delegate" its responsibilities underthe Federal Aviation Regulations.

11 In re USAir was decidedbefore more recent Administrator decisions that have applied strict liability to air carriers for maintenance violations, which is one ofthe reasons for a lack ofmore recent Administrator decisions employing a "knew or should have known" standard. While Respondent was conducting operations for compensation and hire that would normallyrequire an air carrier certificate, it was not legally an air carrier and is not subject to strict liability for maintenance violations. 23Here, 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 Directorwas involved in the decision-making for both the alteration ofN390TH and composing the text ofthe 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 ofthe maintenance log entry did not accuratelyreflect what had been done to the aircraft (for example, the maintenance log entry made no reference to the fabrication of components). Further, Respondent itselfhas 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 Motionto Continue Trial Date (filed February 5, 2014), at 3. 12 Respondent cannot claim that its Executive Directoris 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 ofoutside mechanics. Compare id. with Response at 34. A litigant cannot defeat summary judgment by advancing arguments that contradictits ownpleadings. 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 disclosedMr. Fowleras an expert witness prior to this submission, despite expert witness disclosures being due a year ago, tbe FAAwill objectto anyattemptbyRespondentto call Mr. Fowler as an expert witness. 24personally involved in the decision-making as to what work to perform, how to perform it, and/orhowto recordit. Even taking the facts in the light most favorable to Respondent, this case does notpresent

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 beenreturned 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 inthe improper alteration and maintenance log entry, and Respondent cannot escape liability for its violations. There is no genuine dispute ofmaterial fact, and the FAA is entitled tojudgment as a matter oflaw. XV. Respondent's Second Affirmative DefenseFails Respondent presents no independent argument regarding its second affirmative defense, instead including it in the discussion ofits 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. Itis undisputed that they did not inspect the work. Itis undisputed that the FAA has established a procedure for submission of a request for field approval, or a determinationthat 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 byRespondent, there is no legal basis for Respondent's contentions that these conversations provide it with carte blanche to operate an unairworthy aircraft. TheFAAis entitled tojudgment as a matter oflaw.



### 25

### CONCLUSION In February 2011, Respondent's Director ofMaintenance, 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 impropermajorrepair onthe leaking fuel tank- again using amechanic 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 ofthis 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 offact, 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 ofissues in this

26case that do not turn on questions of law or expert opinion, such as the role of Respondent's Director ofMaintenance 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, Respondenthas not presented any evidencethat could lead a reasonable finder of fact to find inits favor on any issue. Ithas notraised any genuine disputes ofmaterial fact, and it has not presented arguments as to whythe FAA is not entitled tojudgment as a matter oflaw on theundisputed facts ofthis case.

WHEREFORE, Complainantrespectfullyrequests that the Judge grant SummaryJudgment and affirm the Amended Complaintin its entirety, or, alternatively, grantpartial SummaryJudgment to the extent deemed appropriate. 

# 40- Respectfully submittedthis(

__dayofFebruary, 2014. 13

CHRISTOPHERR. STEVENSON Attorney Office ofthe Regional Counsel

13 TheFAAOffice ofthe Regional Counsel for the SouthernRegionwas closed due to inclementweatheron February 12-13, 2014. 27CERTIFICATE OF SERVICE I hereby certify that the foregoing FAA's Reply in Support ofMotion for Summary Judgment was sent: Original and one copyviacertifiedmail to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWrightBuilding- Suite 2Wl000 One copyvia certifiedmailto: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJerseyAvenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 StuartA. Goldstein, P.A. 7300 NorthKendall Dr., Suite 380 Miami, FL 33156 Facsimile: (305) 400-0685 

# lChvtm1b 

# m_a

# ~~tOo

# Ai DONNA STAN\LEY Legal Assistant Office ofthe Regional Counsel

' l. c 

### 1

## < 2014 Dated

28U.S. 

### IlEPARTMENT OF THANSPORTATION OFFICE OI<' 

### lU:ARIN<;S FfmEHA.L AVIATION ADMlN.JSTHATION

FEDERAL AVIATION ADMINISTRATION, Complainant, vs, 

### UBERTY FOUNDATION, Respondent. DockctNo. 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 overthe age of 18 and Iunderstand the obligations ofan oath. 2. Iam cmrently employed with the Federal Aviation Administration as an Air Carrier Maintenance Specialistat the Great Lakes Regiona.J Office in Des Plaines. Illinois. 3. Ihave served at the Federal Aviation Administration as 

### an Airworthiness/Maintenance Inspectorfor over 20 years. 4. My aviation maintenance careerbegan in 1959 when! served as acrew chiefin the Air Force, working on F·IOJ and B-52 aircraft. Since leaving the AirForce. Ihave held a Mechanic Certificate with Airframe nnd Powerplant Ratings since 1968, and have received the Charles Taylor Award. Priorto my service withthe FAA, 1worked inthe private aviation industry, starting as a senior mechanic for a 14 

### Cf.R.Part 121 air carrier, <md later serving as the Director ofMaintenance or Chieflnspeeiortor several 14 C.F.R. Pmt l carriers. 1also served as a Designated Ainvorthiness Representative. 1have established and run a 14 C.F.R. Part 145 repair station. Both before and afterjoining the FAA! have been active in the restoration ofa 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 20l.l, culminating ina Febrmn·y 24, 20! I, return to service, and also concerningtheJune !3.2011, fuel leakin one ofN390TH'snew fuel tanks. The material I have reviewed includes the deposition ofthemechanic who performed the work in question, photographs ofthe winter2010-ll work in progress., photo!_traphs video ofthe June 201l fuel leak, appHcable portions oflhe maintenance records fbr N390TH. applicable

GOVERNMENT

# ~yportions oftbc B-!7G structural repairhandbook, maintenance and erection handbook, and parts list, and certification and registration information for N390TH. 6. 1am familiar ;vith the Federal Aviation Regulations and policy documents issued by the Administratort1oncerulng repairs, alterations, m.ajorrepairs, m(\jor alteraiions, and what sorts of work on aircraft fall into which category. 7. The aircraft involved inthis case is aBoeing B-17G, serial number44-85734, registered as civil aircmft N390Tlt 8. N39(ffH was built with fuel tanks consisting ofsix thick,**selJ~sealing** bladder fuel tanks, three 

### in each 

### wing. Eachbladderfuel tank**wa~** installed inan aluminum shell thai surrounded the bladdertanks and was altached to the interior ofthe wing by straps. i\ll attachments between the lhel tanks and the rest ofthefuel 

### system were tixed directly into the bladdertlteltanks, In order toaccommodate the straps and various attachments and 11ttiugs, numerous holes were present in the aluminum shells. Additionally, oneendofthe aluminwn shells was removable, so it couldbe taken on or offthe bladderfuel tanlc

.9. ln general terms, the work on the 

### fuel system ofN390THthat culminated in the February 24, 201 I, retm·n to service consisted ofremoving the bladder fuel tanks entirely, fabricating a tillerneck attaehpoint, a fuel boostpump attach point on four ofthe 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 shuttheremovable end ofthe shell, and connecting each ofthe 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 witha solid tm,tallic tank consisting ofan aluminum shell with holes that had been plugged by welding a vmiety offabricated attachments and platcs tn the shell,m a manufactured with a removable end that was then welded closed. II. This work was an alteration, not arepair, because it changed the design ofthe aircraft and its components, and was not simply arestoration ofthe aircra!lto an undamaged state. 12. The alteration was amajor alteration. As stated in section l.l ofthe 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, orother qualities affecting airworthiness; or (2) That is not done according to accepted practices or cannothe done by elernentary operations,13. There are several reasons why the alieration was a m(\jnr alteration. Within fimr months ofthe alteration, the welding cracked in one ofthe ne.wtanks, resulting in a fuel leak. This was an appreciable eil'ecton a quality affecting the airworthiness ofthe aircwft. Thus, the altcradon was amajor alteration. 14. Additionally, even setting aside the fuel leak, the removal ofthe bladder l'u.el tank could have had an appreciable effect on the airworthiness ofthe aircraft and its fhel system. The alteration increased the fuel capacityofthe aircraft, afieeting weight and balance and possible 

### stresses placed

### onthe wing 

### structure. The new aluminum

### fuel tanks were susceptible to vibrational stresses in ways that a bladder tlrel tankwas not. An aluminum fuel tank would not respoud the sLmJe way to the stressesofthe in-flightmotion ofthousands ofpounds ofaviation t!Je! as asemi-rigid bladdertank would baffles should have been incorporated into any hardshell fuel tank design fbr tanks ofthese sizes. The newly fabricated fixtures and atTachments may ormay nothave been ofequal quality with the components they were replacing. The fabricated tixtures and attachments, even assuming thatil1ey were ofequal quality to the parts they were replacing, had changed from being attaeherl to the semi-rigid bladdertank to being attachedto the rigid aluminum tank, which could impacthowthey responded to stress during Hight. All of these problems are exacerbatedbecause the aluminum tanks were not simply solid, formed aluminum tanks, but had been extensivelywelded, introducing numerous potential weaknesses into the system- as can be seenby the cracking that developed in one ofthe fuel tanks in less than four months, the weld seams are a source ofstructural 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 canbe introduced 

### by welding are highlighted 

### by the B·17G Structural RepairIhmdbook'sprohibition on welding aluminum structural members

.. while the fuel tank is nota 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 tankis amajor altermion. FAA Order 89()0.1 provides extensive guidance to Aviation Safety Inspectors in th.e perHnmance oftheir duties. One ofthe possible duties oftm AS! is field approvals ofmajor alterations. Accordingly, one ofthejobnids in the 8900.1 is a list ofmajor altewtions, and whether therequired approval can be a tield approvaL mustbe an engineering approval, or requires a Supplemental'I'ype C'ertilicate. On the list ofmajor al!erations is any change in apermanent fud tank or installation ofa new fud tank. !6. Further, the fabrication ofne'"' fuel tanks outofthe aluminum shells was a major alteraiion because litbricating components and welding are not an elementary operation. 17. l amtwvare oftheprovision in Appendix AofPart 43 ofthe Federal Aviation Regulations that lists changes in the basic design ofa fuel system as an example ofa major alteration. The replacement ofthe bladderfuel tanks with fahrlcated alluninum fuel tanks was achange .in the basic design ofthe fuel system. While someone couldmechanically listdozens ofcomponents that were not replaced in replacing the fuel tanks, this does not meanthatthe replacement ofthe fuel tanks was Mta change in the basic design ofthe fuel system. Fuel tanks, and their ability to perthnn properly, arc absolutely vital to the functioning ofa fuel and '"notthe 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 bythe 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 ofan aluminum shell by welding on attachments and m.etal plates to doseopenings is nnt an acceptedpractice, as that term is used in the FAR l.l definitions ofmajnr alteration and majorrepair. I9. Each ofthe reasons described above, standing alone, would renderthe alteration a major alteration. 20. The work performed that culminatedinthe February 24, 2011, return to service was an alteration, not arepair. However, ifit was arepair, it would be a majorrepair. As stated in section Ll 

### ofthe Federal Aviation Regulations (Definitions): Major repair means arepair: 

### (1) That, ifimproperly done, might appreciably af1i::et weight, balance, structural strength, perfbrmancc, powerplantoperation, flight characteristics, or other qualities affecting airworthiness; or (2) That is not done according tn accepted practices orcannot be done by elementary operations. 21. Thedistinction between a

### majcn· repair and minor repair largely tracks the distinction between amll]or and minor alteration. As such, all but one ofthe reasons discussed ahow as to why the altcnttion was a major alteration arc also reasons why this would be a majorrepair, ifit had been arepair. 22. The one exception is regarding the example in Appendix Aabout how a change in the basic design ofthe fuel system is a m<uor alteration. This exampleis not applicable to repairs. However, Appendix A also provides that each and every repair oJa fuel tank is a major repair. Each ofthe reasons identified above. standing alone, would renderthe work a major repair, ifit was arepair. 24. The alteration ofN390TH is not described in any maintenance mmmal orinstructions 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 notinclude the sort**ofinsp<t~tions** necessary to verify that the new fud tanks were capable ofwithstanding the stresses offlight.26. The alteration ofN390THwas not done in sucha way as to restore the condition ofthe aircraft to at leastits original or properly altered condition with respect to resistance to vibration and deterioration and otherqualities a!Tecting a.invorthiness. Ali ofthe Hrctors mentioned in paragraph 1.4 are pertinenl her\!. The extensive wefdingonthe new fuel tanks made them vulnerable to the stresses off1ight in ways that the original tanks were not. and this resulted in the rapid failure ofoneofthe tanks. 

### 27. N390Ufwas unairworthy because it did not confonntoits type certificate ortype design. TI1e aircraft did n\)t conform to its type certificateor type design because the B-l7G's design never contemplatedtaking 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 nowthe type certificate forthe 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 ortype design because ithad not been restored to its original orproperly altered condition. The aircraft did not conform toils type ccrtlJlcate

### or type design becausethe alteration performed was not 

### an approved 

### or acceptable form ofalteration. 'fhe aircraft did not cont(Hm to its type ccrtillcate or type design because Mr. Schneiderdid nothave the Inspection Authorization required to retum the aircraft to service alter amajor alteration. The aircraft did not eonf(>rm to its type certificate ortype design because no FAA Porm 337 was executed for the major alteration. The aircraft did not confom1 to its type certificate ortype design because no approved technical data was used in performing 

### 1J1c alteration. 29. Each ofthe abovereasons, standing alone, meant thatN390TH was unairworthy because it did not conform to 

### it> type certitlcatc ortype 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 ofengine 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 ofthe February 24, 20Il alteration ofthe aircraft.. !l1c reasons described above, welding can introduce numerous weaknesses into an aluminum component and the safety of sucb aheavily welded fuel lank was always questionable. That the welding failed so quickly demonstrates that the potential weaknesses had,. infact, been introduced. It is my opinion that, because ofthe improper alteration, N390TH was not in acondition safe operation aHer the installation ofthe aluminum fuel tanks. 31. l have reviewed the maintenancerecords fbr N390THpertaining 

### wtl1e February :24, 20II, alteration. No FAA Fonn 337 was completed for this worlc 32. Ihave reviewed Mr. Schneider's description ofthe 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 J1maintenance on the fabricated fnel tanks was noi otherwise acceptable to the Administratordue to the nature ofthe component being repaired. ·rhe lhcl tank was an unapproved part that should never have been installed onthe aircraft. There were no methods, techniques, orpractices acceptable to the Administrator for repairing the fuel tanks because the fuel tanks themselves were unacceptable. 34. In addition, even ifthe nature ofthefuel tanks was set aside, the repair would not have been perfmmed using methods, techniques, orpractices acceptable to the Administrator. As Mr. Schneider indicates in his deposition, the work could have been done ina less risky manner,but he chose to optfor aquick fix in orderto meet a schedule rather thanthe safe, proper repair. The fuel tanks shouldhave been removed from the aircratl for tlre repair, but were not Sealant should have been applied from the inside, butwas instead appliedfrom the outside ofthe tank

< applying the sealant to the inside ofthe tank ensures that the pressure ofthe fuel in the tank serves to push the sealant into any cracks, rather than pushthe sealant out .Mr. Schneider performed only alimited visual inspectionon the repairthrough the boostpump access door, but the inspection shouldhave been more extensive (forexample, 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 itoperated 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 therelore notpermittedunder the aircratl's type certificate< Further, it was amajor repair and Mr. Schneiderdid nothold the Inspection Authorization required to return the aire.raftto service after the repair, and no FAA Form 337 was executed. Furtherdeclarant sayetll naught. !

.Thomas Duellman, dedarethis ofFebruary. 20 !4, underpenalty ofpmjury that the above statements are tme and correct.