# 0 U.S. Department OfTransportation Federal Aviation Administration Office ofRegional Counsel August 23, 2012 Northwest Mountain Region Colorado, Idaho, Montana, Oregon, Utah, Washington, Wyoming

......**~Federal** 

### Aviation Administration 800 Independence Avenue SW Wilbur Wright Building, Suite 2W1000 Attn: Hearing Docket Clerk, AGC-430 Washington, D.C. 20591 Honorable Richard Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. Washington, D.C. 20590 Vnane B. Jaques, Esq. DombroffGilmore Jaques & 

### French, PC 1676 International Drive, Penthouse McLean, VA 22101 SUBJECT: FAA Case No. 2010NM010105 FDMS No. FAA-2011-0682 Aviation Technical Services, Inc. Motion for Summary Judgment- Corrected 1601 Lind Avenue S.W. Renton, Washington 98057 Tel: (425) 227-2165 Fax: (425) 227-1007 

# ReCEIVED AUG 272012 

# HIAi1lNG DOCKET

Please see the enclosed corrected copy ofthe MSJ regarding the above-referenced case. The correction is explained in the footnote on page eight, thatthe year was inadvertently left offthe original signed copy ofthe document. We apologize for this inconvenience and please call our office at**~25)** 

### 227-2165 with any questions. / 

### Sine/ely,

## .·~. //

# /1\Jc~ David F. Shayne Attorney DS:nm Enclosure

### UNITED STATES OF AMERICA DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

In the Matter of:**--~-----** ..·----A:viationTechnical-Services;Inc:



### MOTION FORA DECISION FAA CaseNo. 2010NM010105 FDMS No.**FAA-2011-06~2** Corrected 

### Judge Richard C. Goodwin

Federal Aviation Administration (FAA), Complainant inthe above-captioned matter, pursuantto the provisions of 14 C.F.R. 

### § 13218(£)(5) and Rule 56 ofthe Federal Rules ofCivil Procedure (FRCP), hereby moves for a Decision (Summary Judgment) inthis case, since, after considering the pleadings and the attached declarations and evidence, it shouldbe clearthatthere is no genuine issue as to the material facts alleged and discussed below, and the FAAis entitled to ajudgment in

### this case as a matter oflaw. BACKGROUND 1bis case arose whenroutine FAA surveillance uncovered the fact that Respondent hadperformedmaintenance on four different Boeing 737 actuator beam assemblies and had failed to followthe applicable methods and techniques for the procedures performed. Complainant issued a Notice ofProposed Civil Penalty and conduct an informal conference with Respondent and its counsel. After the parties were unable to reach settlement, Complainant filed a Complaint and later, on January 11, 2012, filed anAmended Complaint which states as follows:

12 

### II. 1. Aviation Technical Services, Inc. (ATS) is now, and at all times mentioned herein was, the holder ofRepair Station Certificate No. HN6R593N. 2. ATS performed maintenance onbehalfof Southwest Airlines (SWA), (an air carrier having a continuous airworthiness maintenance program) including:

·**a:·-···~--the·repair·ofBoeing737** mainlanding gear actuator beam assembly part number 65-46108-19 serial number 854 on or aboutNovember 21, 2009; b. the overhaul ofBoeing 737 main landing gear actuator beam assembly part number 65-46108-19 serial number 3264 and its installation on N376SW onDecember 12, 2009;
c. the overhaul ofBoeing 737 mainlanding gear actuator beam assembly part number 65-46108-19 serial number 815 on or about January 9, 2010; and d. the overhaul and return to service ofBoeing 737 main landing gear actuator beam assembly part 65-46108-19 serial number 2565 on February 2, 2010. 3. Airworthiness Directive (AD) 2009-09-07 requires that all Boeing 737 part number 65-46108 main landing gear actuator beams be overhauled as specified in the instructions given in Boeing Service Bulletin (SB) 737-32Al355 Revision 2, to detect and correct broken actuator beams which could result in loss ofcontrol ofthe airplane. 4. SB 737-32Al355 R2 incorporates Boeing Component Maintenance Manual (CMM) 32-16-31. CMM 32-16-31 specifies that repair sleeves and bushings are to be made with 17-4 PH stainless steel and cadmium plated in accordance with Standard Overhaul Practices Manual (SOPM) 20A2-05, "Bright Cadmium Plating." 5. SOPM 20-42-05 requires that cadmium plating be applied to a minimum thickness of.0005 inch. ATS had cadmium plating applied to a thickness ofonly .0004 inch on main landing gear retract actuator beam assembly (repair sleeves and bushings) serial numbers 815, 854, and 2565, and a thickness ofonly .0003 inch on serial number 3264. 6. SOPM 20-42-05 requires that following cadmiumplating parts, fabricated with 17-4 PH stainless steel be given a hydrogen embrittlementbake for a minimum of 12 hours at 350-400 degrees. ATS had hydrogen embrittlement baking ofthe

### listed parts (repair sleeves and bushings) done for only 8.5 hours (serial number 2565), 10.4 hours (serial numbers 815 and 854), and 11 hours, 20 minutes (serial number 3264). 7. In conducting the overhaul andrepair ofthe listed main landing gear actuator beam assemblies, ATS did not conduct the maintenance inthe manner requiredby AD 2009-09-07 and SB 737-32Al355. 8. The SW A Continuous Airworthiness Maintenance Program (CAMP) includes airframe manuals, including the Boeing Structural Repair Manual and Boeing
·**---ServiceBulletinso~-~--.-~------** 

### ___ 9. In 

### conducting the overhaul and repair ofthe listed main landing gear actuator beam assemblies, ATS did not comply withthe SWA CAMP. 10. In 

### conducting the overhaul and repair ofthe listed main landing gear actuator beam assemblies, ATS did not use methods, techniques, and practices acceptable to the Administrator. 11. In 

### conducting the overhaul and repair ofthe listed main landing gear actuator beam assemblies, ATS did not perform the work in such a manner that the condition ofthe aircraft, airframe, engine, propeller or appliance worked on was at least equal to its original or properly altered condition. III. 

### 1. Byreason ofthe foregoing facts and circumstances, ATS violated the following sections ofthe Federal Aviation Regulations (14 C.F.R.):

3 

### a. Section 43.13(a) inthat, when performing maintenance, alteration or preventive maintenance required by Part 91 ofthe Federal Aviation Regulations, ATS failed to use the methods, techniques, and practices prescribed in the current Manufacturer's Maintenance Manual or Instructions for Continued Airworthiness prepared by its Manufacturer, or other methods, techniques, and practices acceptable to the Administrator. b. Section 43.13(b) in that ATS performed maintenance, alteration, or preventive· maintenance and did not perform the work in such a manner and use materials ofsuch a quality, thatthe condition ofthe aircraft, airframe, aircraft engine, propeller, or appliance worked on was at least equal to its original or properly altered condition.
c. Section 145.205(a) inthat ATS performed maintenance, preventive maintenance, or alterations for an air carrier or commercial operator that has a continuous airworthiness maintenance program under part 121 or part 135 anddid not follow the 

### air carrier's or commercial operator's program and applicable sections ofits maintenance manual. d. Airworthiness Directive (AD) 2009-09-07, in that ATS failed to accomplish the required actions in accordance with the AD.
On or about January 31, 2012, Respondent filed its Answer. Except as to three minor details, Respondent admittedthe allegations in Section 

### II,paragraphs onethrough four, 1 andparagraph eight. Respondent denies all remaining paragraphs in sections 

### II and 

# mintheir entirety. Theparties exchanged discovery requests. ComplainantpresentedRequests for Admissions (RFAs) inits discovery requests. RFAs 2. and 3 asked Respondentto admit the allegations described in Section II ofthe Complaint, paragraph 5 and Respondent did not deny the allegations (see Attachment 1) : REQUEST FOR ADMISSION NO. 2: Admit thatATS had cadmiumplating applied to a thickness of.0004 inch on main landing gearretract actuatorbeam assemblies (bushings and sleeves) serial numbers 815, 854, and 2565. RESPONSE: Respondent states thatinformation currently knownto, or readily obtainable by, A TS is insufficientto enable it to admit or deny this request. REQUEST FOR ADMISSION NO.3: Admit that that ATS had cadmiumplating applied to a thickness of .0003 inch on main landinggear retract actuator beam assembly (bushings and sleeves) serial number 3264. RESPONSE: Admitted. RFA 9 asked for an admission that the components at issue were made ofa certain material that subjected them to the airworthiness instructions relevantto this case (see Complaint Section II, paragraph 6): REQUEST FOR ADMISSION NO.9:

1 Respondent's denials reference the dates stated in paragraphs 2(a) and 2(c) and the term "repair" in 2(a). Those allegations are indeed erroneous and have been corrected in the Second Amended Complaint. 4Admit that main landing gear actuator beam assembly part number 65-46108-19 (bushings and sleeves) serial numbers 815, 854,2565 and 3264 were fabricated of 17-4 PH stainless steel 180ksi or above. RESPONSE: Admitted. RF As 10, 9, 10 and 11 2 all asked for admissions that the components at issue were not baked for the required length oftime. Respondent failed to deny any ofthese allegations. A. Standard ofReview A Motionfor Decision pursuant to 

### § 13.218(f)(5) is, for all intents and purposes, the
same as a Motionfor Summary Judgmentunder FRCP 56 and is reviewed under the same standard. InRe the Matter ofScottMcDougall, Doc. CP89EA0316 at 4 (1990). Motions for Summary Judgment may be decided on admissible evidence that is outside ofthe pleadings, normally presented in declarations or affidavits. InRe the Matter ofHorizonAir Industries, FAA OrderNo. 96-24 (1996). All inferences inthe evidence must be drawn in favor ofthe non-moving party. Ifthe court determines thatthe non-moving party demonstrates, throughputatively admissible evidence that some genuine dispute offact exists, thenthe motion should be denied. McDougalL If, onthe other hand, the court determines no genuine issues offact exist and the outstanding legal issues are resolved in favor ofthe moving party's position, thenthe moving party is entitled to ajudgment on any such issue as a matter oflaw. Id. B. The Evidence Establishes at Least a

### prima

### facie Case.3 The allegations relating to the violations committed can be summarized as follows: I. Respondent performedmaintenance (overhaul) on 4 different "actuator beams" that are components installed onBoeing 737 aircraft operatedby Southwest

2 Duplicate numberings resulted from a scrivener's error in drafting the discovery requests. 3 See Attachment 2, which summarizes the evidence establishing the violations. 5Airlines (SWA). The maintenance at issue includedthe application ofcadmium plating to various parts (bushings and sleeves) and thenbakingthese same parts for a specified period oftime. See Attachment 2. 2. Respondent should have performed the tasks mentioned above in accordance with several different documents (See Complaint, SectionII, paragraphs 3, 4, 5, 6, and 8, Attachment 2). The instructions at issue are: a) The cadmiumplating be applied to a minimumthickness of.0005 inch and, since the parts were fabricated of 17-4 PH stainless steell80ksi or above, b) the cadmiumplated parts be baked for at least 12 hours. (See Complaint, SectionII, paragraph 5 and 6). See Attachment 3. 3. Respondent failed to follow the instructions discussed above, inthat itfailed to apply the cadmium plating to the appropriate thickness onto the parts at issue and it failed to bake theparts for the fulll2 hours. (See Complaint, Section II, paragraph 5 and 6). See attachments 4 through 11. All the above allegations are supported by documentary evidence, the pertinent contested portions ofwhich are appended to this motion. Therefore, Complainanthas established a prima facie case that, ifnot refuted, should result in affirmation ofits Complaint. C. Respondent has Admitted or Failed to Deny the Facts Necessary to Prove the Allegations.
Ifthe facts as alleged above are proven, then the violations statedinthe Complaint at Section III are proven as well. Respondent's Answer admittedthe allegations grouped above innumber 1. It also admittedthe allegations grouped in number 2 except that it denies that SOPM 20-42-05 requires that the cadmiumplating be applied to a minimum


# .
6thickness of.0005 inch or that the baking be accomplished for 12 hours. It denies also that it failed to follow those instructions. However, inits answers to the RFAs as described above, Respondent admitted that it applied cadmium plating onto one part at a thickness below .0005 inch and fails to deny that it did so for the other three parts. 

### It also admitted that the parts were fabricated of 17-4 PH stainless steel 180ksi or above (which means they were subjectto the 12 hour baking requirement) and it fails to deny that itbakedtheparts for less thanthe required 12 hours. Respondent has not categorically denied any particular fact that is necessary to prove the allegations. For this reason, the case is ripe for summaryjudgment, at least as to the issue ofwhetherthe violations were committed. See In Re Gamache-WOrtmilll, FAA Order No. 2012-4 (2012) (holding that when a party fails to answer a RFA, the ALJ may deem the failure an admission, 14 CR 13.220(1), and may grant amotion for decision). Accordingly, the ALJ should find no genuine issues offact exist and, under the law
as stated above, Complainant's Motion for Decision shouldbe granted. 

### C. The Administrator's Sanction in 

### this Case Should be Affirmed. FAA Order 2150.3B, the FAA's primary enforcement and compliance policy· source, (see Inre Folsom's Air Service, 2008 WL 4948488 (FAA Order 2008-11)); specifies a "moderateto maximum" sanction whenrepair stations fail to properly perform maintenance for 

### air carriers. See Fig, B-3-b(12). As a Large Business Concern (see FAA Order 2150.3B, Appendix B-5), Respondent is subject to a fine ofup to $25,000 per violation. The fine represents four violations calculated above the medianpointbut well withinthe.sanctionrange.

7Sincethe proposed sanction is well withinthe discretionary authority ofthe Administrator, and is neither unusually high or low, it shouldbe affirmed.
CONCLUSION WHEREFORE, since there is no genuine issue as to the material facts raisedherein andthe FAAis entitledto ajudgment as a matter oflaw all issues presented inthe Complaint, FAA counsel requests thatthe ALJ grant this Motion for Decision and enter a decision affirming the Administrator's FNPCP issued in this case in its entirety. Inthe alternative, Complaintrequests that partial summaryjudgmentbe granted, atleast as to the issue ofwhether the violation occurred. Respectfully submitted, DATED this 

### 22"ct day ofAugust, 

### 20124

/s/ DAVID F. SHAYNE FAA Attorney

/s/ Karen Davis Huber FAA Attorney

4The year was inadvertently left offthe original signed copy. 8

### CERTIFICATE OF SERVICE I hereby certify thatthe foregoing Motion for a Decisionhas been served viaFedEx overnight delivery to the following:

9 Federal Aviation Administration 800 Independence Avenue SW Washington, D.C. 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding

- Suite 2W1000
Honorable Richard Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. Washington, D.C. 20590
Dane B. Jaques, Esq. DombroffGihnore Jaques & French, PC 1676 International Drive, Penthouse McLean, VA22101
Datedthis 22"d day ofAugust, 2012.


### Is/ Natalie Morrell Office ofRegional Counsel (ANM-7) Federal Aviation Administration 1601 Lind Avenue SW Renton, W A 98057 (425) 227-2914