U.S. DEPARTMENT OF TRANSPORTATION 

OFFICEOFHEARINGS RECEIVED 

FEDERAL AVIATION ADMINISTRATION 

JUL -7 2014 

HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

LIBERTY FOUNDATION, 

Respondent. 

Docket No. FAA-2012-0477 

FAA Case No. 2011GL030070 

Judge Sullivan 

FAA'S CLOSING ARGUMENT 

This case came to hearing from April 22-25, 2014. At hearing, the FAA presented 

multiple expert witnesses as to the numerous regulatory violations committed by Respondent. 

Respondent, on the other hand, presented minimal evidence, including presenting no evidence 

whatsoever as to several of the legal and factual issues in this case. The evidence at hearing 

demonstrated that (I) Respondent had improperly performed a major alteration on civil aircraft 

N390TH in February 2011 by fabricating fuel tanks by welding; (2) this rendered the aircraft 

unairworthy; (3) Respondent repeatedly operated the aircraft in an unairworthy condition; 

(4) Respondent improperly repaired a fuel leak in one of the newly-fabricated tanks; (5) no 

approval for return to service was executed for this repair before the aircraft was operated; and 

( 6) the improper repair provided further reasons why the aircraft was unairworthy. Judgment 

should be granted to the FAA on all allegations and for the full civil penalty proposed. 

FACTS IN EVIDENCE 

Civil aircraft N390TH was a World War II-era Boeing B-17G bomber, serial number 44-

85734, issued a Limited Airworthiness Certificate on May 3, 2005, under Limited Type 

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Certificate L-1-3, which was issued on December 2, 19146. Cl, C2. The Limited Type 

Certificate provided that "If any repairs or modifications (other than those covered in the 

pertinent Army or Navy repair manual) are made prior to or subsequent to NL certification, it is 

the responsibility of the owner to furnish sufficient evidence to a Civil Aeronautics 

Administration representative to show that the modified airplane maintains the same degree of 

airworthiness as the original. C2 at Note 3. 

Raymond Fowler is and at all material times has been Respondent's executive director 

and Chief Pilot. RIA at 6; R2 at 1. Cullen Underwood was a pilot who had been involved with 

Respondent since 2006, T3 at 206, kept documents for Respondent, T3 at 246, and served as 

Respondent's representative at hearing. Starting in around October 201 0, and at all pertinent 

times thereafter, Rodney Schneider was Respondent's Director of Maintenance. T3 at 181-82; 

C26 at 7-8, 21; RIA at 10; R2 at 1. Schneider held a mechanic certificate, but did not hold an 

Inspection Authorization. C22 '1[1. Fowler, Schneider, and Underwood were considered the three 

principals at Respondent at the time the pertinent decisions were made concerning the 

maintenance and alterations at issue in this case. T3 at 241. 

The February 2011 Alteration 

Prior to the winter of 2010, N390TH's fuel system included six self-sealing bladder 

tanks, which was its original configuration. RIA at 20; C19 (listing rubber Goodyear fuel tanks); 

T1 1 at 66-67, 100-01, 195; T2 at 42-43, 176; C32 '1[8, C33 '1[8, C35 '1[15. Each of these tanks had 

an aluminum support shell surrounding the bladder tank, with various straps connecting the fuel 

tanks to the interior structure of the wing through the shells. T1 at 66-67, 100-02, 195; T2 at 42-

1 The page-numbering in the transcript starts anew for each day of the hearing. Accordingly, this Motion will cite to 

"Tl" for the first day of the hearing, "T2" for the second day, "T3" for the third day, and "T4" for the fourth day. 

2 
43, 175; RIA at 20; C32 ~ 8, C33 ~ 8, C35 ~ 15. The shells as originally configured were not 

capable of serving as fuel tanks. Tl at 102; T2 at 43; C23 at 16. 

Prior to winter maintenance 2010-2011, Respondent's Director of Maintenance was 

Timothy Bourgoine. Tl at 56, 60-62; C35 ~ 6. When Fowler decided to winter the aircraft in 

Georgia in order to reduce costs, Mr. Bourgoine resigned as Director of Maintenance because he 

would not have been able to properly supervise the maintenance being performed on the aircraft. 

Tl at 70-72; C35 ~ 8. 

At the beginning of winter maintenance 2010-2011, a decision had been made to replace 

the self-sealing bladder tanks by having brand new aluminum tanks manufactured, working with 

a Designated Airworthiness Representative (DAR). T3 at 158-59; RIA at 12-13. According to 

Fowler, "at some point the decision was made" to instead replace the self-sealing bladder tanks 

by transforming existing components into fuel tanks. RIA at 13-14, 17; see also RIA at 18 

(Fowler reporting that Schneider made decision "through the discussions he had with the 

group"); R2 at 1 ("Schneider has never had authority to make decisions on what maintenance to 

perform."). According to Schneider, he did not make the decision, and thought that the decision 

was made by Underwood or by Fowler. T3 at 159, 175; C26 at 18. According to Fowler, he had 

multiple conversations with Schneider and Underwood and was briefed on the changes to be 

made. RIA at 14-15. According to Schneider, he did not speak directly with Fowler about the 

work until they were deciding how to draft the maintenance log entry. C26 at 18. Fowler 

personally observed the work that had been performed, and was involved in every decision 

made. RIA at 19-20. 

The ultimate work performed on the aircraft included removing and discarding the 

original bladder fuel tanks, along with the existing mounts and attachment points that were part 

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of the fuel tanks, then fabricating fuel tanks out of the support shells. T3 at 165; C22 ~ 2-3. The 

February 2011 alteration included Underwood fabricating new mounts for fuel caps, boost 

pumps and level sensors. T4 at 38; T3 at 167, 176; C26 at 17; RIO at 2; RI2 ~ 4. The welding 

included welding shut the previously-bolted end cap, welding each vent and fuel flow connection 

to the shells, and welding the newly-fabricated mounts to the shells. RIO at 2; Rl2 ~ 4; see 

generally C4- Cl6. It is undisputed that the alteration performed is not described in any of the 

B-17G's maintenance manuals, or any instructions for continued airworthiness. T1 at 133-34; 

CIS; C20; C26 at 36-37; C32 ~ 24; C33 ~ 24; C35 ~ 29. It is undisputed that no approved data 

was used to support the alteration, that there was no engineering approval, and that there was no 

supplemental type certificate. T4 at 38-39; See C22 ~~ 3-4. Nor was any sort of manufacturing, 

engineering, or other diagram, drawing, or documentation used to support the alteration. T4 at 

2I-24, 38-39. No other B-17 has ever had fuel tanlcs like the ones installed on N390TH after the 

alteration. T1 at I05; C32 ~ 10, C33 ~ 10, C35 ~ 17. 

The fabrication of fuel tanks out of the support shells via welding was physically 

performed by welders at Cobb Industrial Fabricators, a specialty welding shop with expertise in 

welding. T3 at 190-93, 200-02I; RIO at I; C26-27. The least experienced welder used for the 

alteration had over 20 years' experience. T3 at 201. According to Wilkins and Underwood, the 

welding was "normal," "simple," "non-complex," and "elementary," by which they meant that 

the welding was the type of welding that could be performed in a certain position. T3 at I95-96, 

221-25; RIO at 2; Rl2 ~ 4. Wilkins acknowledged that he had no experience with aviation or the 

Federal Aviation Regulations (FARs). T3 at 20I-02. 

After the newly-fabricated tanks were installed, they were lealc checked, but no other 

tests or checks were performed, including no vibration testing being performed. T3 at I65, 168; 

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C26 at 26, 50. Schneider relied on Underwood for the determination of whether the welding was 

appropriate. C26 at 52. 

By maintenance log entry dated Febmary 24, 2011, Schneider approved the aircraft for 

return the aircraft to service. C3 at 4. At the time, the aircraft total time (ACTT) was 2474.7 

hours. C3 at 4. The text of the maintenance log entry was as follows: 

Removed all six fuel tanks. Removed bladder liners from the tanks and repaired 

the aluminum tanks by welding. Ref. AC 43-13 section 8-32. Fuel tanks are made 

of aluminum sheet, 1100 Yz hard. Reinstalled the original aluminum tanks using 

the original mounting methods and the original fuel line, boost pump, fuel cap, 

vent line, and level transmitter mounting locations and methods. The tanks were 

leak checked and operationally checked with no discrepancies found. Ref. B-17 

Maintenance and Erection manual, pages 196-199 

C3 at 4; see also C22 ~5-6. The entry was incomplete, inaccurate, and misleading in that (1) it 

referenced a repair, not an alteration; (2) it did not reference the fabrication of components; (3) it 

represented that the "original" aluminum tanks had been reinstalled when there were no original 

aluminum tanks; and ( 4) it did not reference the fabrication of new tanks out of the shells. See C3 

at 4; see also C22 ~ 7, 9. 

Fowler was involved in conference calls with Schneider, Inspector Miller, and Inspector 

Alderman,2 and Fowler reported that he relied on Schneider's opinion that the alteration was not 

a major alteration, but Schneider admitted during his deposition that he had no independent 

opinion, but was himself relying on the purported opinions of Miller and Alderman. T3 at 160-

62; RIA at 15-16, 18; see also R2 at 2. Further, Fowler and Schneider stated that not only did 

they rely on Miller and Alderman's opinion that the work was a minor repair, but that they relied 

2 For the first time at hearing, Respondent asserted that there had been an earlier conversation that had only involved 

Miller. SeeT4 36-37. This newly recalled conversation that did not involve Inspector Alderman was an obvious 

fabrication designed to avoid Alderman's explicit testimony and because the FAA had not called both Alderman and 

Miller as their factual testimony would have been duplicative. This fabrication can, and should, be disregarded. 

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on Miller and Alderman to draft the maintenance log entry itself. T3 at 162-63; C26 an 6-17; R2 

at 2. Schneider testified that this conversation occurred before February 24,2011. T3 at 161, 163. 

However, as Inspector Alderman testified, he had never met or spoken to Schneider until 

weeks after the aircraft was returned to service and had been operated by Respondent. T2 at 14, 

19, 25; see also C36 ~ 3. Further, when a conversation did occur in March of2011, Respondent 

did not inform Miller and Aldennan of the true nature of the work performed on the aircraft. T2 

at 19; C36 ~ 5. Regardless, contrary to Schneider's representations, Alderman and Miller did not 

draft the February 2011 maintenance log entry. T2 at 15; see also T2 at 20-21. 

Additionally, Bourgoine testified that he was contacted by the Respondent in March 2011 

about the possibility of performing an inspection on the aircraft. Tl at 72-73; C35 ~ 9. Although 

the aircraft had already operated, Schneider indicated to Bourgoine that the paperwork for the 

fuel tank alteration was still being worked on. Tl at 74-75; C35 ~ 10, 13. Bourgoine conferred 

with Miller, and determined that Miller had not seen any paperwork on the alteration. T1 at 75-

76; C35 ~ 11. Prompted by Bourgoine's inquiries, Fowler then contacted Bourgoine, explained 

how Respondent had chosen to alter the existing shells in order to save money, and asserted that 

Respondent had now presented full information to Miller, who had said that the alteration was 

minor. T1 at 76-78; C35 ~ 11. However, when Bourgoine conferred with Miller again, Miller 

was still unaware of the true nature of the alteration. T1 at 77; C35 ~ 12. 

At his discovery deposition, Fowler insisted that there had been no cost difference 

between having new tanks manufactured through a DAR and the welding process ultimately 

implemented, and that cost had no effect on Respondent's decision. R1A at 18-19. However, 

during his perpetuation deposition, Fowler admitted that Respondent had actually saved tens of 

thousands of dollars by using the welding process, since the anticipated price of manufacturing 

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new tanks through a DAR was $50,000 and the ultimate price of the process used was something 

less than $10,000. RIB at 37-38. 

Consequences of the February 2011 Alteration 

At hearing, the FAA presented the live testimony and affidavits of three expert witnesses 

on aviation maintenance. Each of these experts testified that the work done on the aircraft's fuel 

system in February 2011 was an alteration, that it was a major alteration, and that it rendered the 

aircraft unairworthy. Additionally, a finding of fact was made by the Judge before the hearing 

that the Administrator has already determined that any change to or addition of a permanent fuel 

tank is a major alteration. See C23 at 22, 23, 26, 29. It is undisputed that, as provided in the 

F ARs, an aircraft can only be returned to service after a major alteration by an IA and that a 

Form 337 must be completed. It is undisputed that Schneider did not hold an IA and that no 

Form 337 was completed. It is undisputed that if an aircraft if returned to service by a non-IA 

mechanic and without a Form 337, then the aircraft is in an unairworthy condition. Respondent 

presented no evidence that the February 2011 work was not an alteration, that it was not a major 

alteration, or that the aircraft remained in an airworthy condition after the alteration. 

Aviation Safety Inspector's (ASis) Thomas Soerens and Thomas Duellman, along with 

Respondent's former Director of Maintenance Timothy Bourgoine, all testified that the work was 

an alteration. T1 at 107; T2 at 51, 178; C32 '1[11; C33 '1[11; C35 '1[18. Each testified that, for a 

variety of reasons that will be discussed below, the February 2011 alteration was a major 

alteration. T1 at 108-12, 118-29, 156-57; T2 at 51-60, 178-83; C32 '1['1[13-19; C33 '1['1[13-19; C35 

'1['1[20-24; see also C22 '1[8. Each testified that, for a variety of reasons that will be discussed 

below, the February 2011 alteration left the aircraft in an unairworthy condition. T1 at 106-12, 

118-29, 156-57,160, 171-72,178-84, 186-87; T2 at 51-60,69-70, 177-78; C32 '1['1[27-30; C33 

7 
-,] 27-30; C35 -,]-,] 30-31; see also C22 -,] 10. The ASis testified that the alteration was not 

performed using methods, techniques, and practices acceptable to the Administrator. T2 at 62-63, 

184-85; C32 -,] 26; C33 -,] 26; see also T3 at 157-58; C22 -,] 11. The ASis testified tlmt the 

alteration did not restore the aircraft to its original or properly altered condition. T2 at 63, 185-

86; C32-,] 27; C33-,] 27; see also C22-,] 11. 

Additionally, the AS Is testified that that the maintenance log entry placed by Respondent 

in the aircraft logbook did not accurately or completely describe the work performed, and that a 

mechanic reading the entry would not know what had actually been done to the aircraft. T2 at 71, 

73-74, 94.3 

Respondent's paid expert, Gary Norville, testified that the basic design of the B-17G was 

(in pertinent part) to have "a set of tanks in each wing." T3 at 81. Norville asserted that altering 

the fuel system would not change the basic design of the aircraft as long as it still had six fuel 

tanks, but then admitted that at least some changes in the nature of the fuel tanks would be a 

change in the basic design, but did not explain how he might determine what kind of change 

would or would not be a change in the basic design. T3 at 86, 96-97. 

Norville also testified that changing the gross weight or center of gravity of the aircraft 

would be a major alteration but after repeated prodding from opposing counsel, adjusted his 

testimony and stated that it wouldn't be a major alteration if the aircraft was still within an 

unspecified "envelope." T3 at 86. Norville admitted that it would be necessary to make some sort 

of detennination as to the magnitude of the change. T3 at 95-96. 

Schneider testified that the methods, techniques, practices, materials, and tools that he 

used in the February 2011 alteration were ones that he had used previously. T3 at 170. However, 

Schneider admitted that he had never actually participated in an alteration like the one performed 

3 Expert witness Bourgoine also provided testimony to this effect, but it was later struck. See T1 at 130-31. 

8 
on this aircraft. T3 at 181. Further, Schneider had previously agreed that the methods, 

techniques, and practices used to fabricate the fuel tanks were so far below the standards 

acceptable in aviation that the installation of the tanks would never have been approved by a 

component authority. T3 at 179; C22 'j! 11. He had also previously agreed that the methods, 

techniques, and practices that he used to perform the alteration were not acceptable to the 

Administrator, and were in violation of§ 43.13(a). T3 at 180; C22 'j! II. 

The June 2011 Repair 

In June 2011, one of the welds on the endcap of the newly-fabricated #I tank on the 

aircraft failed and began leaking. T3 at 130; C26 at 40-42; C22 'j!'j! 18-19; see T3 at 106-10. 

Respondent performed a repair on the leak by applying PR 2001 tank sealer from the outside and 

then bolting an aluminum U-channel (also known as a C-channel) over the sealer. T3 at 111-13, 

132; C26 at 42-43; C22 'j! 18. The sealant should be applied from the inside. C26 at 43, 49. 

The repair performed was not one contained in any maintenance manual or instructions 

for continued airworthiness. T1 at 133; T2 at 75; C26 at 44-45; C22 'j! 22; C32 'j! 32; C33 '1]32; 

C35 '1]32 ... The repair was leak-checked by partially filling the tank and then performing a 

limited visual and olfactory check from several feet away. C26 at 47. 

One option to repair the leak would have been to remove the tank from the aircraft, then 

purge and re-weld it. C26 at 48. This was not done because of time constraints; the aircraft 

needed to depart on the morning of Monday, June 13, 2011. C26 at 49-50. 

Fowler was present with the aircraft and was made aware of the leak and the repair. C27 

at 34-35. Underwood was also present and participated in the repair process. T3 at 108-12, 131; 

C26 at 44; C27 at 34. The aircraft was flown on June 13, 2011, and was lost during the flight. 

See generally C17; T2 at 33-34. In a maintenance log entry dated June 13, 2011, but not actually 

9 
made until June 14, 2011, after the loss of the aircraft, Schneider described the repair of the fuel 

tank leak. C26 at 45-46; C3 at 8; C22 ~ 20. 

When asked at his deposition, Schneider stated that he did not remember executing a 

return to service prior to the flight. C26 at 51. However, at hearing, he testified that he did 

remember making an entry in the aircraft's discrepancy log prior to the flight. T3 at 157. 

According to John Hess, the pilot of the June 13, 2011 flight, Schneider did make an entry in the 

discrepancy log prior to the flight, and although Hess could not remember what the log entry 

was, he believed that it was appropriate. T3 at 121-23; R11 at 1-2. 

Consequences of the June 2011 Repair 

At hearing, the FAA presented live testimony and affidavits from three experts that the 

repmr was improperly performed and provided additional reasons why the aircraft was 

unairworthy. All three experts provided evidence that the repair was inherently improper because 

the fuel tanks were an unapproved part that should never have been on the aircraft. T2 at 78-79, 

192-93; C32 ~ 33; C33 ~ 33; C35 ~ 33. The ASis additionally testified that the methods, 

techniques and practices used to repair the leak were not acceptable to the Administrator. T2 at 

76-77, 82-83, 191-92; C32 ~ 34; C33 ~ 34; see also C22 ~ 22. All three experts stated that the 

repair was a major repair. T1 at 132-33; T2 at 92-93, 192; C32 ~ 35; C33 ~ 35; C35 ~ 34. All 

three experts stated that the June 2011 repair was another reason why the aircraft was 

unairworthy. T1 at 133; T2 at 75-76, 83, 93-94, 192-93; C32 ~ 35; C33 ~ 35; C35 ~ 34; see also 

C22 ~~ 22-24. The repair did not restore the aircraft to its original or properly altered condition. 

C22 ~23. 

Schneider testified that the methods, techniques, practices, materials, and tools that he 

used in the June 2011 repair were ones that he had used previously, but he did not identity any 

10 
instances in his aviation career where he had previously participated in such a repair. T3 at 170. 

However, Schneider had previously admitted that the methods, techniques, and practices that he 

had used to perform the June 2011 repair were not acceptable to the Administrator, and were in 

violation of§ 43.13. T3 at 180-81; C22 ~ 22. 

Respondent had insured the aircraft for several million dollars and after the loss of the 

aircraft in June 2011 received an insurance payout of $2.7 million. RlB at 39. As is typical with 

aircraft insurance, Respondent's policy included a provision that the aircraft would not be 

covered if the aircraft was in an unairworthy condition at the time of its loss. RlB at 39-40. 

Number of Operations 

Between the February 2011 alteration and the June 2011 repair, the aircraft was operated 

for 104.3 hours. Compare C3 at 4 (ACTT of 2474.7) with C3 at 8 (ACTT of 2579). Duellman 

testified that, based on the number of hours flown and the capacity of the tanks, the minimum 

possible number of flights operated during that time would have been 12. T2 at 188-89. 

Bourgoine testified that during tour season (spring and summer), Respondent operated the 

aircraft on at least 10 and as many as 35 flights per week, with most flights lasting 25-30 

minutes. Tl at 56-58. Evidence was also presented that the aircraft was flown from Goergia to 

Houston, Texas and then Burbank, California during March 2011. T1 at 72, 75; T2 at 22; C35 

~ 9. In addition to the alteration and repair at issue in this case, the aircraft's maintenance records 

also indicate distinct maintenance actions at different ACTTs on March 13, March 25, April21, 

and May 14. C3 at 5-7. John Hess testified that he had made three flights in the aircraft on June 

11, 2011. T3 at 106-07. Respondent presented no evidence contesting the FAA's allegation that 

the aircraft was operated on at least twelve occasions after the February 2011 alteration and the 

June 2011 repair, for a total of at least 13 flights at issue in this case. 

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Sanction 

Under the Administrator's published sanction guidance, penalties are examined based on 

the number of acts of violation, rather than the number of regulatory subsections violated. T3 at 

10-11; C3 8 at 7-10. The penalty range for operation of an unairworthy aircraft that may have, or 

has, an adverse effect on safe operation, is Moderate to Maximum. T3 at 16; C38 at B-14, Fig. 

B-1-1(2). The penalty range for an incomplete or unsigned release of an aircraft is Minimum to 

Maximum. T18-19; C38 at B-13, Fig. B-1-g(l). The penalty ranges for a small business concern 

that does not hold a certificate, such as Respondent, are: 

Minimum 

Moderate 

Maximum 

$550- $2199 

$2200- $4399 

$4400 - $11000 

T3 at 16-17; C38 at B-6. The proposed penalty of $43,250 for 13 flights/acts of violation is 

approximately $3,300 per flight, near the middle of the Moderate range. See T3 at 17; C38 at B6. The proposed penalty for returning the aircraft to service after the June 2011 repair without a 

maintenance release was $6600, at the middle of the Moderate to Maximum range. See T3 at 19; 

C3 8 at B-6. Respondent presented no evidence as to sanction. 

SUMMARY OF THE ARGUMENT 

The replacement of the bladder fuel tanks in N390TH with fuel tanks fabricated from the 

aluminum shells was a major alteration that rendered the aircraft unairworthy. The central 

dispute of this case is Respondent's contention that this was not a major alteration and, therefore, 

it was permissible to return the aircraft to service and operate it despite the lack of an Inspection 

Authorization and despite the lack of a Form 337. However, Respondent at hearing presented 

virtually no evidence regarding this or other technical issues in the case. The FAA, by contrast, 

12 
presented multiple expert witnesses who described in detail the reasons why the February 2011 

alteration and June 2011 repair were improper and rendered the aircraft unairworthy. 

This closing argument is divided into 14 parts. The first 11 parts address the regulatory 

classifications applicable to the facts of this case, and why all of the various violations alleged in 

the Amended Complaint are supported by the facts and the law. The next 2 parts address whether 

Respondent can evade responsibility for its direct violations as owner and operator of the 

aircraft, and whether it is responsible for the underlying maintenance violations committed by its 

agents. The final part addresses sanction. 

As discussed in Part I, the February 2011 fabrication of fuel tanks out of the aluminum 

shells was an alteration, not a repair. The change from self-sealing bladder fuel tanks to weldedaluminum fuel tanks was a design change, not a mere restoration to a previous functioning status. 

As discussed in Part II, the February 24,2011, maintenance log entry did not describe the 

work performed in fabricating the fuel tanks - it inaccurately presented the alteration as a minor 

repair to existing metallic fuel tanks, and made no mention of fabrication. Section 43.9(a)(l) was 

violated by the improper maintenance log entry, and § 91.407(a)(2) was violated by the 

subsequent improper operation of the aircraft. 

As discussed in Part III, the February 2011 alteration was a major alteration, not a minor 

alteration. The alteration did not use accepted practices, was not performed with elementary 

operations, and affected qualities of the aircraft affecting airworthiness. Further, as the 

Administrator has determined, any alteration of a permanent fuel tank is a major alteration. As 

discussed in Part IV, the "major" nature of the alteration had immediate regulatory 

consequences. An IA was required to approve the aircraft for return to service, but Schneider did 

not hold one. A Form 337 was required, but none was completed. Section 43.7(a) was violated 

13 
when the aircraft was returned to service by an unauthorized person, § 43.9(d) was violated by 

the failure to complete a Fonn 337, § 43.5(b) was violated when the aircraft was returned to 

service without completing a Form 337, and § 91.407(a)(l) was violated when Respondent 

operated the aircraft without a proper return to service. 

As discussed in Part V, the alteration was improperly performed. The alternation was not 

contained in any applicable manual, it was not performed in a manner acceptable to the 

Administrator, and it did not restore the aircraft to its original or properly altered condition. The 

alteration violated§§ 43.13(a) and (b) of the Federal Aviation Regulations. 

As discussed in Part VI, N390TH was unairworthy after the February 2011 alteration 

because it did not meet its type certificate or type design. The aircraft's limited type certificate 

explicitly requires that any newly-designed repair or alteration first be presented to the FAA 

along with evidence that it was an appropriate one - a step which did not happen here. 

Additionally, the alteration rendered the aircraft unairworthy because it was returned to service 

by an unauthorized individual, no FAA Fonn 337 was executed, and the aircraft was not restored 

to its original or properly altered condition. As discussed in Part VII, N390TH was unairworthy 

after the February 2011 alteration because it was not in a condition for safe operation. The unsafe 

condition of the aircraft is amply demonstrated by the brisk failure of the improperly fabricated 

fuel tanks. As a result, Respondent violated§ 91.7 when it subsequently operated N390TH in an 

unairworthy condition. 

As discussed in Part VIII, the June 2011 repair was improperly performed. First, there is 

no such thing as a properly perfonned repair on a component that should not exist in the first 

place. Second, the repair methodology chosen was improper, and was based on Respondent's 

need to operate the aircraft on a schedule. As a result, Respondent violated§§ 43.13(a), (b). 

14 
As discussed in Part IX, the June 2011 repair was a major repair. As with the February 

2011 alteration, the "major" status of the repair results in numerous regulatory requirements 

applying, none of which were followed. 

As discussed in Part X, no maintenance record entry was made for the June 2011 repair 

before the aircraft operated, and was lost, on June 13, 2011. The failure to make the entry 

violated§ 43.5(a) and the subsequent operation violated§ 91.407(a)(2). 

As discussed in Part XI, N390TH was unairworthy at the time of the June 13, 2011, 

flight. In addition to the unairworthiness caused by the February 2011 alteration, the June 2011 

repair introduced new problems- the repair was improperly performed, there was no FAA Form 

3 3 7, there was no authorized return to service, and the aircraft was not in conformance with the 

particular language of its type certificate. Respondent violated § 91.7(a) by operating the aircraft 

in an unairworthy condition. 

As discussed in Part XII, Respondent's second affirmative defense fails. Respondent has 

presented no legal or factual basis to be excused from liability for its violations based on an oral 

representation from an FAA inspector, even if such a representation was made. As discussed in 

Part XIII, Respondent's first affirmative defense fails and it is responsible for the underlying 

maintenance violations in this case. 

As discussed in Part XIV, the sanction imposed by the FAA in this case is reasonable and 

appropriate. 

ARGUMENT 

I. The February 2011 Work On The Aircraft Was An Alteration 

There is no dispute as to the facts of what work was performed on the aircraft that 

culminated in the February 24, 2011, maintenance record entry. It is undisputed that N390TH 

15 
was equipped with bladder fuel tanks supported by aluminum shells, that the bladder fuel tanks 

were removed and discarded, that fittings were fabricated and welded onto the shells, that 

aluminum plates were welded onto the shell to cover the numerous holes in the shells, that the 

removable end of the aluminum shells were welded shut, and that the newly created components 

were installed on the aircraft and used as fuel tanks. See T1 at 66-67, 100-02, 195; T2 at 42-43, 

175-76; T3 at 165, 167, 176; T4 at 38; Cl9; C22 n 22-23; C23 at 16; C26 at 17; C32 ~ 8; C33 

~ 8; C35 ~ 15; RIA at 20; RIO at 2; R12 ~ 4; see generally C4- C16. 

The FARs do not contain a definition of"repair" or "alteration." See 14 C.F.R. 1.1. The 

older Civil Aviation Regulations defmed a "repair" as an operation required to restore an aircraft 

to a condition for safe operation, including mending or replacement of damage or broken parts, 

and an "alteration" as any appreciable change in the design of an aircraft. C.A.R. §§ 18.3, 18.4. 

This work was manifestly an alteration. Before the work, the aircraft had bladder fuel 

tanks, supported by aluminum shells. After the work, the aircraft had a completely different kind 

of fuel tanks. This is an appreciable change in the design of an aircraft, not a mere mending of an 

existing component or the identical replacement of an existing component. At hearing, the FAA 

presented three expert witnesses, who all agreed that the work was an alteration. T1 at 1 07; T2 at 

51, 178; C32 ~ 11; C33 ~ 11; C35 ~ 18. Respondent presented no evidence to the contrary. 

II. The February 24, 2011, Maintenance Record Entry Did Not Describe The Work 

Performed 

The February 24, 2011, maintenance record entry did not describe the work actually 

performed. Section 43.9(a) of the Federal Aviation Regulations provides, in pertinent part, that 

each person performing maintenance or an alteration on an aircraft, airframe, or component shall 

make an entry in the maintenance record of that equipment containing a description of the work 

performed. 14 C.F.R. § 43.9(a)(l). Further, "No person may operate an aircraft that has 

16 
undergone maintenance, preventative maintenance, rebuilding, or alteration, unless ... (2) The 

maintenance record entry required by § 43.9 or § 43.11, as applicable, of this chapter has been 

made." 14 C.P.R. § 91.407(a)(2). 

As discussed above, the actual work performed on this aircraft was to alter the aircraft by 

removing and discard the existing bladder fuel tanks, fabricating attachments, welding those 

attachments onto an aluminum shells, welding aluminum plates to fill up holes in the aluminum 

shells, welding shut the removable end of that aluminum shell, and then installing the weldedaluminum shell as fuel tanks. 

The maintenance record entry made by Mr. Schneider, on the other hand, stated: 

Removed all six fuel tanks. Removed bladder lines from the tanlcs and repaired 

the aluminum tanks by welding. Ref: AC-43 section 8-32. Fuel tanks are made of 

aluminum sheet, 1100 Y2 hard. Reinstalled the original aluminum tanks using the 

original mounting methods and the original fuel line, boost pump, fuel cap, vent 

line, and level transmitter mounting locations and methods. The tanks were leak 

checked and operationally checked with no discrepancies found. Ref. B-17 

Maintenance and Erection Manual, pages 196-199. 

C3 at 4. The maintenance entry does not accurately and completely describe the work performed. 

It refers to a repair, when there was an alteration. It refers to repairing aluminum tanks and then 

reinstalling the "original" aluminum tanks when there had never been aluminum tanks installed 

on N390TH. It fails to mention the fabrication of individual attachments to be welded onto the 

new fuel tanks, much less that the fuel tanks themselves had just been fabricated. Two expert 

witnesses testified at hearing that the February 24, 2011 maintenance log entry did not accurately 

or completely describe the work performed, and that a mechanic reading the entry would not 

know what work had actually been done on the aircraft. T2 at 71, 73-74, 94. Respondent 

presented no evidence to contradict either this expert testimony or the inaccuracies and 

omissions in the maintenance log entry. As Schneider had previously agreed, the entry "was 

17 
incomplete and misleading, in that [he] did not repair aluminum tanks, but instead [he] fabricated 

aluminum tanks from the aluminum shells that had previously provided support and protection 

for the bladder tanlcs [he] removed from N390TH." C22 -,r 7. 

As a result,§ 43.9(a) was violated when Respondent's Director of Maintenance failed to 

make the required maintenance entry describing the work actually performed, and Section 

91.407(a)(2) was violated repeatedly when Respondent subsequently operated the aircraft. 

III. The Alteration Was A Major Alteration 

The February 24, 2011, alteration was a maJor alteration, not a mmor one. The 

replacement of the bladder fuel tanks with the welded-aluminum fuel tanks was not only capable 

of affecting the airworthiness of the aircraft, it did affect the airworthiness of the aircraft. It was, 

additionally, not performed according to accepted practices or with only elementary operations. 

Accordingly, it was a major alteration. 

The Definitions section of the Federal Aviation Regulations provides that: 

Major alteration means an alteration not listed in the aircraft, aircraft engine, or 

propeller specifications-

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

performance, powerplant operation, flight characteristics, or other qualities 

affecting airworthiness; or 

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

elementary operations. 

14 C.P.R. 1.1 (emphasis in original). Although it is no longer used in the regulations, the term 

"minor alteration" refers to any alteration other than a major alteration. See C.A.R. §§ 18.40, 

18.41 (defining a "minor alteration" as any alteration not capable of affecting the airworthiness 

of the aircraft, and defining a "major alteration" as any alteration that is not a minor alteration). 

18 
As is apparent on the face of this definition, the bar to jump from a minor alteration to a 

major alteration is a low one. In order to be major alteration, it need only be the case that the 

alteration might affect any quality affecting the airworthiness of the aircraft - in order to be a 

minor alteration an alteration must be incapable of noticeably affecting any quality that affects 

the airworthiness of the aircraft. 

There are three ways in which an alteration can be a major alteration - (1) the alteration 

might affect a quality of the aircraft affecting airworthiness; (2) the alteration is not perfonned in 

accordance with accepted practices; and (3) the alteration cannot be completed with elementary 

operations. The alteration ofN390TH is a major alteration under all three standards. 

A. The Administrator Has Already Determined That Any Change To A Fuel 

Tank Is A Major Alteration 

As established on summary judgment, the Administrator has already determined that any 

change to, or addition of, a permanent fuel tank is a major alteration. C23 at 23-23, 26, 29. 

Further, while any addition of a fuel tank or change to a fuel tank is a major alteration, this case 

presents not a modest change, but rather the wholesale removal of one set of fuel tanlcs and the 

addition of fuels tanks constructed of a completely different material4 The Administrator's 

interpretation of his own regulation, as expressed in FAA Order 8900.1, is binding and requires a 

finding that the alteration here was a major alteration. 

B. The Alteration Did Affect The Airworthiness of the Aircraft 

All that the FAA needs to demonstrate to show that the alteration was a major alteration 

is that it might appreciably affect a quality of the aircraft affecting airworthiness. See 14 C.F.R. 

§ 1.1. Here, the undisputed facts demonstrate that the alteration did affect the airworthiness of 

the aircraft. See C32 ~~ 13-14; C33 ~~ 13-14; C35 ~ 20. In June 2011, the welding of the endcap 

4 Underwood's contention to the contrary- that the fuel tanlcs were identical before and after the alteration- is 

preposterous. See T4 at 38. 

19 
of the newly-fabricated #I tank failed and the tank began leaking fuel. T3 at 130; C26 at 40-42; 

C22 'jl'jll8-19; see also T3 at I 06-10. Whether or not fuel leaks out of an aircraft at a rapid pace 

such that the aircraft cannot be safely flown is manifestly a quality affecting airworthiness. See 

C32 ,[13; C33 'jll5; C35 'jl24. In order to find that the alteration of N390TH was a minor 

alteration, it would have to be found that the alteration was not capable of affecting any quality 

affecting the airworthiness of the aircraft, even though the alteration did affect a quality affecting 

the airworthiness of the aircraft. The alteration was, therefore, a major alteration. 

C. The Alteration Was Capable of Affecting the Characteristics of the Aircraft 

Relating to Airworthiness 

A third reason why the alteration was a major alteration is the myriad ways in which the 

alteration might have appreciably affected qualities of the aircraft affective airworthiness: 

The new welded-aluminum fuel tanks had a higher fuel capacity than the original bladder 

fuel tanks, affecting the weight and balance of the aircraft; T1 at 110-11; T2 at 53-54, 178-

81, 183; C32 'jll4; C33 '1[14; C35 '1[21; see also T3 at 86. 

The change in fuel capacity could affect fuel uptake because the fuel line would not be in the 

same place relative to the bottom of the fuel tank; T1 at 111; 

The higher fuel capacity could affect the stress placed on the wing structure by the fuel tanks; 

T1 at 119-20; C32 '1[14; C33 '1[14; C35 '1[21; see 14 C.P.R. § 25.963(a) (requiring that fuel 

tanks must be able to withstand the vibration, inertia, fluid loads, and structural loads placed 

upon it); 

This was exacerbated because there were no baffles included in the welded-aluminum tanks. 

There were no baffles in the original rubber fuel tanks, but a fully rigid shell of weldedaluminum does not respond in the same way to the force of the shifting of thousands of 

pounds of aviation fuel as the bladder did;; Tl at 119-20; T2 at 54-55, 177; C32 '1[14; C33 

20 
'jj 14; C35 'jj 21; see 14 C.P.R. § 25.965(a) (requiring testing of the tanks ability to withstand 

fluid pressures under adverse flight circumstances); 

The newly-fabricated attachments and fittings were, instead of being attached to a semi-rigid 

bladder fuel tank, attached to a fully rigid welded-aluminum fuel tank, which could impact 

how the fuel system was able to cope with physical stress on the system; T2 at 52-53, 183; 

C32 'jj 14; C33 'jj 14; C35 'jj 21. 

The welded-aluminum tanks were susceptible to vibration in ways that the bladder fuel tanks 

were not; indeed, rigid metallic fuel tanks are subject to certification testing requirements 

concerning vibration that non-metallic tanlcs are not, see 14 C.P.R. § 25.965(b); T2 at 54, 

177; C32 'jj 14; C33 'jj 14; C35 'jj 21. 

The use of different kinds of aluminum alloys in the new fuel tanks could affect the 

performance of the fuel tanks and the welding, but no analysis was ever performed on this 

subject, and the welding did quickly fail; T2 at 55-57; C32 'jj 14; C33 'jj 14; C35 'jj 21. 

The standard for whether an alteration is a major alteration or a minor alteration is simply 

whether the alteration might affect a quality affecting airworthiness. 14 C.P.R.§ 1.1. The FAA's 

burden is not to prove that the alteration did affect characteristics relating to the airworthiness of 

the aircraft (although, as discussed above, there can be no legitimate dispute about the fact that 

the alteration did so affect the aircraft), but only that it might affect a quality affecting the 

airworthiness of the aircraft. An alteration is not a major alteration because it does affect these 

qualities of the aircraft, but because it might affect them. All of the above-listed items are ways 

in which the alteration might have affected qualities affecting the airworthiness of the aircraft -

in order for the FAA's claim to fail, a finding would have to be entered that it was not possible 

21 
for any of the above considerations to affect any quality affecting the airworthiness of the 

aircraft. The alteration was a major alteration. 

D. The Alteration Changed The Basic Design of the Fuel System 

Throughout this litigation, Respondent has chosen to largely disregard the explicit 

definition of "major alteration" given in the PARs, and has instead focused on subpart (a) of 

Appendix A of Part 43, which contains a list of examples of major alterations. Among those 

example is that any change in the "basic design" of a fuel system is a major alteration. Indeed, on 

summary judgment the Respondent argued that the actual definition contained in § 1.1 was 

contradictory to Appendix A of Part 43 and, therefore, should be ignored entirely. Consistent 

with the plain language of the regulations, the ultimate definition of "major alteration" is found 

in § 1.1, and while the list of examples in Appendix A is helpful, it must only be read in light of 

that definition, and the ultimate question presented to the Judge is whether the definition applies. 

Regardless, however, the alteration performed on the aircraft was a change in the basic design of 

the fuel system of the aircraft. 

Although Respondent presented no direct evidence as to whether its alteration of the fuel 

system was a change in the basic design of the fuel system, Respondent's did present paid 

witness Norville, who testified that pretty much any change in the fuel system would be a change 

in the basic design, except that it wouldn't be a change in the basic design as long as it still had 

six fuel tanks. See T3 at 81, 86, 96-97. Any argument founded on this testimony will fail. 

As an initial matter, Norville's definition of basic design was incoherent. It takes only a 

minimal level of exposure to the world of aviation maintenance to realize that one cannot simply 

change the material of aircraft components willy-nilly. And, as Norville himself admitted, one 

cannot actually just replace the six fuel tanks with any other six fuel tanks and have it not change 

22 
the basic design of the system. T3 at 96-97. Norville failed, however, to reconcile this admission 

with his prior assertion - clearly changing the material of the fuel tank can be a change in the 

basic design of the fuel system, contrary to Norville's original testimony, but Norville presented 

no testimony as to how he would know whether or not a change in material would be a change in 

the basic design, or whether this change in material was a change in the basic design. 

This failure is fatal to Respondent's position for two reasons. First, it demonstrates the 

inherent emptiness of Norville's opinion on the subject of what constitutes a change in the basic 

design of an aircraft. Second, it leaves Respondent unable to connect Norville's opinion to the 

facts of this case. Even according to Norville, some changes in the materials used to construct the 

fuel tanks would be a change in basic design - but Respondent presented no fact or expert 

testimony that the particular changes it made to the fuel system were or were not on the wrong 

side of this unexplained line. 

The FAA, by contrast, presented expert testimony that explicitly addressed the question 

of whether the alteration performed by Respondent was a change in the basic design of the fuel 

system, and those experts concluded that it was. T1 at 122-25, 156, 182-83; T2 at 59; C32 '1[18; 

C33 '1[18; C35 '1[23. The alteration was a major alteration. 

E. The Alteration Was Not Performed In Accordance With Accepted Practices 

In addition to affecting qualities affecting the airworthiness of the aircraft, the alteration 

was a major alteration because it was not done in accordance with accepted practices. 

Fabricating a fuel tank out of an aluminum shell by welding on attachments and metal plates to 

close openings is not an accepted practice, as that term is used in the PARs. None of the 

witnesses consulted, all of whom had extensive aviation maintenance experience, had ever seen 

an alteration of this nature performed, where a fuel tank in a B-17 (or any type certificated 

23 
aircraft) was fabricated in the heavily-welded way the new fuel tanks were in this aircraft, and 

none believed that the alteration was performed in accordance with accepted practices. T1 at 

105; T2 at 57-58, 176-77, 182; T3 at 157-58; C32 ~~ 10, 18; C33 n 10, 18; C35 ~ 17. 

Respondent presented no meaningful testimony on this point- Schneider originally testified that 

the manner in which this alteration was performed was like ones he had used previously in his 

career, T3 at 170, but on cross-examination he admitted that he had never actually participated in 

an alteration like the one performed on this aircraft, T3 at 181. The alteration was not perfonned 

in accordance with accepted practices and, therefore, was a major alteration. 

F. The Alteration Was Not Done Bv Elementary Operations 

An alteration that requires other than elementary operations to perform IS a maJor 

alteration. 14 C.P.R.§ 1.1. As all of the expert witnesses who addressed this question testified, 

the nature of the welding performed in the fabrication of the new fuel tanks from the aluminum 

shells could not be performed with only elementary operations - that this would be a job that 

could not be performed by most mechanics, and would require a specialist. Tl at 122, 156-57; 

T2 at 58-59, 182; C32 ~ 17; C33 ~ 17; C35 ~ 22. 

Indeed, the mechanic who legally performed the maintenance - Schneider - did not do 

the welding on the shells and even Underwood, who was qualified at hearing as an expert in 

welding, did not do the welding. See T3 at 214, 216-17, 220-21. Instead, Respondent sent the 

shells to a specialty welding shop to do the welding, where the welding was done by specialists 

who each had at least two decades of experience. T3 at 223-24. That the welding may have been 

"simple" or "non-complex" or "elementary" in the parlance of the welding community because 

of the physical position required to do the welding is irrelevant to the question of whether the 

welding was performed using elementary operations as that term is used in the Federal Aviation 

24 
Regulations. The alteration could not be performed using elementary operations, but instead 

required the use of highly specialized and experienced welders employing techniques and skills 

not known to most A&P mechanics. The alteration was, accordingly, a major alteration. 

IV. Because the Alteration Was A Major Alteration. Only the Holder of an Inspection 

Authorization Could Approve the Aircraft for Return to Service and a Form 337 Was 

Required 

It is undisputed that, if the alteration was a major alteration, then a Form 3 3 7 was 

required (but was not executed) and that only the holder of an Inspection Authorization (which 

Schneider was not) could approve the aircraft for return to service. It is also undisputed that if an 

aircraft is approved for returned to service after a major alteration by a non-IA and/or without a 

Form 3 3 7, the aircraft is unairworthy. 

Holding a mechanic certificate authorizes an individual to perform (most) maintenance 

and alterations on an aircraft, but does not authorize returning aircraft to service. 14 C.F .R. 

§ 65.81(a). Holding an airframe rating authorizes a mechanic to approve an aircraft for return an 

aircraft to service after an airframe maintenance alteration - except for a major alteration. 14 

C.F.R. § 65.85(a). In order to approve an aircraft for return an aircraft to service after a major 

alteration, a mechanic must also hold an Inspection Authorization. 14 C.F.R. § 65.95(a)(1). No 

person may return an aircraft or component thereof to service except for the Administrator or as 

expressly authorized to do so in the regulations. 14 C.F.R. 43.7(a). "No person may operate any 

aircraft that has undergone maintenance, preventative maintenance, rebuilding, or alteration 

unless- (1) it has been returned to service by a person authorized under§ 43.7 of this chapter." 

14 C.F.R. § 91.407(a)(1). 

Schneider did not (and does not) hold an Inspection Authorization. Accordingly, 

Schneider could not approve the aircraft for return to service after the February 2011 major 

25 
alteration. As a result, Respondent violated§ 43.7(a) when its Director of Maintenance returned 

N390TH to service. Respondent then repeatedly violated § 91.407(a)(1) by operating N390TH 

when there had been no authorized return to service. 

Additionally, because the alteration was a major alteration, section 43.9(d) requires that 

"major repairs and alterations shall be entered on a form, and the form disposed of, in the manner 

described in Appendix B, by the person performing the work." 14 C.F.R. § 43.9(d). Appendix B 

to Part 43 requires that an FAA Form 337 be executed. 14 C.F.R. Part 43, App. B(a). It is 

undisputed that no FAA Form 337 was completed for the February 2011 alteration. As a result, 

Respondent violated § 43.9(d) and also § 43.5(b), which prohibits the aircraft from being 

returned to service unless the Form 337 has been completed. See 14 C.F.R. § 43.5(b). 

V. The Alteration Was Not Properly Performed 

The February 2011 alteration did not comply with the requirements of§ 43.13(a) or (b) of 

the Federal Aviation Regulations- the methods used were not acceptable to the Administrator, 

and the aircraft was not restored the aircraft to its original or properly altered condition. 

Section 43.13 of the Federal Aviation Regulations contains the basic performance rules 

for maintenance and alterations. "[E]ach person performing maintenance, alteration, or 

preventive maintenance on an aircraft, engine, propeller, or appliance shall 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, except as noted in 43.16." 14 C.F.R. 

43.13(a). "[E]ach person maintaining or altering, or performing preventive maintenance, shall do 

that work in such a manner and use materials of such a quality, that the condition of the aircraft, 

airframe, aircraft engine, propeller, or appliance worked on will be at least equal to its original or 

26 
properly altered condition (with regard to aerodynamic function, structural strength, resistance to 

vibration and deterioration, and other qualities affecting airworthiness)." 14 C.F .R. § 4 3.13 (b). 

Most maintenance and alterations performed on aircraft fulfill the requirements of Part 43 

because they are perfonned in accordance with a maintenance manual system published by the 

manufacturer of the aircraft, or in accordance with a supplemental document approved by the 

Administrator, such as a Supplemental Type Certificate or an Airworthiness Directive. Here, 

however, Respondent came up with its own alteration, and cannot take shelter behind any of 

these standards - it is undisputed that the alteration was not contained in any maintenance 

manual, Instructions for Continued Airworthiness, or other document approved by the 

Administrator (such as approved data, an engineering approval, or a supplemental type 

certificate). T1 at 133-34; T4 at 21-24, 38-39; CIS; C20; C22 ~~ 3-4; C26 at 36-37; C32 ~ 24; 

C33 ~ 24; C35 ~ 29. 

Accordingly, in order for Respondent to comply with § 43.13(a), it needed perform the 

alteration on N390TH using "other methods, techniques, and practices acceptable to the 

Administrator." See 14 C.P.R.§ 43.13(a). Two of the FAA's expert witnesses directly addressed 

this point, testifying that the alteration was not performed using methods, techniques, and 

practices acceptable to the Administrator. T1 at 133-34; T2 at 63, 185-86; C22 ~~ 3-4; C26 at 36-

37; C32 ~~ 24, 27; C33 ~~ 24, 27; C35 ~ 29. Further, Schneider had previously agreed that the 

alteration did not use methods, techniques, and practices acceptable to the Administrator. T3 at 

157-58; C22 ~ 11. Respondent presented no evidence to rebut these expert opinions5 The 

alteration did not comply with§ 43.13(a). 

5 At hearing, Respondent placed into evidence Advisory Circular 43 .13-IB. Respondent has previously asserted that 

this Advisory Circular approved the alteration, but has never provided any evidence to this effect, and on its face tbe 

AC has no pertinence to this alteration. 

27 
Additionally, the alteration did not restore the aircraft to a condition "at least equal to its 

original or properly altered condition." See14 C.F.R. 43.13(b). There are all of the problems 

identified in Part Ill above. And, again, it is manifest that the February 2011 alteration 

introduced new weaknesses into the aircraft because the failure of the fuel tanks in June 2011 -

caused by the welding - was one that would not, and could not, have occurred had the aircraft 

been in its original or properly altered condition. Both of the expert witnesses consulted on this 

subject opined that the alteration did not restore the aircraft to its original or properly altered 

condition. T2 at 63, 185-86; C32 ~ 27; C33 ~ 37. Respondent presented no evidence to rebut 

these expert opinions. The alteration did not comply with 14 C.F.R. § 43.13(b). 

VI. The Aircraft Was Not In An Airworthy Condition After the February 2011 Alteration 

Because It Did Not Meet Its Type Certificate or Type Design 

The installation of the welded-aluminum tanks in N390TH rendered the aircraft 

unairworthy, both because it was no longer in conformance with its type certificate or type 

design and because it was no longer in a condition for safe operation. The latter will be discussed 

in Section VII below. The former will be discussed here. 

An aircraft may not be operated unless it is airworthy. 14 C.F.R. § 91.7. In order for an 

aircraft to be airworthy, it must be in conformance with its type certificate or type design, and in 

a condition for safe operation. In re Husted, FAA Order 2010-9. An aircraft is unairworthywhen 

it does not meet its type certificate or type design, or when it is not in a condition for safe 

operation. !d. 

The concept of an aircraft not meeting its type certificate or type design is a broad one. 

An aircraft ceases to conform to its type certificate or type design when it is repaired with a 

method that has not been approved or accepted by the Administrator, when the aircraft is not in 

its original or properly altered condition, when it is returned to service by an unauthorized 

28 
person, I d., when a required component is replaced with an improper substitute, In re Rushmore 

Helicopters, FAA Order 2012-8; when a component is cracked, or when the aircraft has any 

unresolved maintenance discrepancies or is overdue for a required inspection, In re Whitley; 

FAA Order 2009-4. An aircraft's airworthiness certificates cease to be effective when the aircraft 

is not maintained in accordance with Part 43 and Part 91. 14 C.P.R.§ 21.181(a)(l). For each and 

all of these reasons, the aircraft did not meet its type certification or type design after the 

February 2011 alteration. T1 at 125, 128; T2 at 69, 186-87; C32 ~ 27; C33 ~ 27. 

First, the aircraft did not meet the particular language listed in its type certificate. The 

limited type certificate for the B-17G is brief and lack details due to the age of the design and 

due to the nature of the aircraft as a purpose-built bomber that was only later given a limited 

civilian certification. See C2; T1 at 106. However, despite the general lack of specificity in the 

type certificate, the February 2011 alteration still left the aircraft out of compliance with the type 

certificate because the type certificate expressly states that for any repair or alteration of the B17G that is not done in accordance with the applicable manuals, the proposed maintenance or 

alteration must be presented to the Civil Aeronautics Administration (now the Federal Aviation 

Administration) along with evidence demonstrating that the repair or alteration is appropriate. C2 

at 1 n.3; T1 at 128; T2 at 69-70; C32 '1[27; C23 ~ 27; see also T1 at 171-72. It is undisputed that 

Respondent made no attempt to make a demonstration to the FAA that the alteration was 

appropriate, much less obtained an agreement from the FAA that they had presented evidence 

establishing that the alteration was appropriate. Respondent presented no rebut the plain 

language of the type certificate, or the expert testimony about its meaning. After the February 

2011 alteration, the aircraft did not meet the terms of its type certificate. 

29 
Additionally, the aircraft after the alteration did not meet the terms of its type design, as 

embodied in the type certificate and the various maintenance, repair, and parts manuals. T1 at 

172; T2 at 186-87; C32 '1]27; C33 '1]27. Again, Respondent presented no evidence on this issue. 

The aircraft failed to meet its type certificate or type design for many other reasons. As 

discussed in Part V above, it was altered in a manner that was not acceptable to the 

Administrator and was not restored to its original or properly altered condition. T2 at 62-63, 184-

86; C32 '1]'1]26, 28; C33 '1]'1]26, 28; see also C22 '1]11. No approved data was used in performing 

the alteration, a requirement for a major alteration. T4 at 21-24, 38-39; C22 '1]'1]3-4; see C32 '1]. 28; 

C33 '1]28. As has been discussed above, because the alteration was a major alteration, Schneider 

was not authorized to return the aircraft to service and a Form 3 3 7 was required and there is no 

dispute that an aircraft returned to service after a major alteration by a non-IA and without a 

Form 3 3 7 is in an unairworthy condition. Each of these reasons, standing alone, rendered the 

aircraft unairworthy and not in conformance with its type certificate or type design. See Husted, 

FAA Order 2010-9, Rushmore Helicopters, Order 2012-8; see also C32 '1]29; C33 'I] 29. The 

aircraft was in an unairworthy condition at all times after the February 2011 alteration. 

VII. The Aircraft Was Not In An Airworthy Condition Because It Was Not in A Condition 

for Safe Operations 

In addition to not meeting its type certificate or type design, N390TH was unairworthy 

because it was not in a condition for safe operation. See Husted, Order 2010-9. 

The February 2011, alteration involved replacing bladder fuel tanks with aluminum fuel 

tanks with extensive welding of new components and plates, and welding shut the previouslyremovable ends of the shells. Less than four months later, the welding failed, resulting in a 

substantial fuel leak. As common sense would indicate, and as supported by the expert testimony 

at hearing, this demonstrates that the aircraft was not in a condition for safe operation. T1 at 128-

30 
29; T2 at 70, 183-84; see C35 ~ 31; C32 ~ 30; C33 ~ 30. Simply put, an aircraft is unsafe for 

flight when it has six improperly-fabricated fuel tanks that may crack open at any moment. 

Respondent presented no evidence on the subject of whether the aircraft was m a 

condition for safe operation. The Judge should find that the aircraft was not in a condition for 

safe operation after the February 2011 alteration and was, therefore, unairworthy. 

VIII. The June 2011 Maintenance Was Improperly Performed 

The June 2011 repair did not comply with the requirements of§ 43.13 of the Federal 

Aviation Regulations - the methods used were not acceptable to the Administrator, and the 

results did not restore the aircraft to its original or properly altered condition. 

As with the February 2011 alteration, it is undisputed that the June 2011 repair was not 

contained in any maintenance manual, instructions for continue airworthiness, airworthiness 

directive, or other document approved or accepted by the Administrator. See Tl at 133; T2 at 75; 

C26 at 44-45; C22 ~ 22; C32 ~ 32; C33 ~ 32; C35 ~ 32. Accordingly, for the June 2011 repair to 

comply with § 43.13(a), it must have been conducted using other methods, techniques, and 

practices acceptable to the Administrator. However, no such methods, techniques, or practices 

were used, or even existed. 

As an initial matter, there was no such thing as an acceptable repair on these weldedaluminum fuel tanks - they never should have existed in the first place, and no repair was 

acceptable on these unapproved parts. T2 at 76-77, 82-83, 191; C32 ~ 33; C33 ~ 33; C35 ~ 33. 

The repair was, therefore, a violation of§ 41.13(a). Additionally, since the welded-aluminum 

configuration was, as discussed at length above, not a proper alteration, restoring the fuel tank to 

the improperly altered condition was, by definition, a failure to restore it to the original or 

properly altered condition. See C22 ~ 22. The repair was, therefore, a violation of§ 43.13(b). 

31 
Even setting aside the bars to the possibility of compliance with§§ 43.13(a) and (b), the 

repair was not properly performed. The fuel tank should have been removed from the aircraft so 

that a better repair could have been performed, including sealing from the inside. T2 at 76, 82; 

C32 ~ 34; C33 '1]34. An analysis was required to determine whether the bolts used by 

Respondent were sufficient to properly support the fuel tank structure, and the methodology used 

by Respondent was one never seen by the testifying expert in his decades of aviation 

maintenance experience. T2 at 76-77. Further, no proper post-repair inspection was performedRespondent should have performed an inspection with full tanks, with the tanks pressurized and 

the boost pumps activated. T2 at 77, 192-93; C32 '1]34; C33 ~ 34. Instead, Respondent conducted 

the repair in an unsafe manner in order to meet its flight schedule. See C26 at 48-50. The repair 

was not performed using methods, techniques, and practices acceptable to the Administrator, in 

violation of§ 43.13(a). 

Contrasting with this evidence against Respondent, Respondent presented only limited 

testimony from Schneider, who asserted generally that the methods, techniques, practices, 

materials, and tools that he used for the June 2011 repair were ones that he had used in his 

career. T3 at 170. However, he did not provide any examples of when he had employed such 

methods, techniques, or practices. See id. And his testimony at hearing contradicted his prior 

admissions that the methods, techniques, and practices he used in performing the June 2011 

repair were not acceptable to the Administrator, and had violated§ 43.13(a). T3 at 180-81; C22 

'1]22. The Judge should find that the June 2011 repair violated§§ 43.13(a), (b). 

IX. The June 2011 Repair Was A Major Repair 

The June 2011 repair was a major repair. As provided in 14 C.P.R. § 1.1: 

Major repair means a repair: 

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(I) That, if improperly done, might appreciably affect weight, balance, structural 

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

qualities affecting airworthiness; or 

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

elementary operations. 

14 C.F.R. 1.1. The requirements for a major repair min·or those for a major alteration- a Form 

337 is required and the aircraft can only be approved for return to service by the holder of an 

Inspection Authorization. 14 C.F.R. §§ 43.9(d), 65.85(a), 65.95(a)(1). As with an alteration, an 

aircraft may not be operated after a repair unless it has been returned to service by an authorized 

individual- in the case of a major repair, the holder of an IA. See 14 C.F.R. § 91.407(a)(1). 

At hearing, the experts consulted testified that the June 2011 fuel tank repair was a major 

repair, noting the nature of the repair, including the unorthodox use of the C channel, the drilling 

and use of bolts in the repair. Tl at 132-33; T2 at 92-93, 192. Respondent presented no evidence 

on this subject The FARs were violated when the aircraft was approved for return to service by 

an unauthorized person without a Form 337, and when it was subsequently operated by 

Respondent 14 CF.R. §§ 14 C.P.R. §§ 43.5(b), 43.7(a), 43.9(d), 91.407(a)(1). 

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

Aircraft Was Operated 

It is undisputed that the aircraft was repaired, was approved for return to service by 

Schneider on June 13, 2011, and was operated by Respondent on June 13, 2011. It is also 

undisputed that Schneider made an entry in the aircraft's maintenance log describing the repair. 

However, as Schneider has admitted, he did not make that maintenance log entry until several 

days later, after the aircraft had been operated. 

"No person may approve for return to service any aircraft, airframe, aircraft engine, 

propeller, or appliance, that has undergone maintenance, preventative maintenance, rebuilding, 

33 
or alteration, unless - (a) the maintenance record entry required by § 43.9 or § 43.11, as 

applicable, has been made." 14 C.P.R. § 43.5(a). "No person may operate an aircraft that has 

undergone maintenance, preventative maintenance, rebuilding, or alteration, unless ... (2) The 

maintenance record entry required by§ 43.9 or§ 43.11, as applicable, of this chapter has been 

made." 14 C.P.R.§ 91.407(a)(2). 

Respondent now argues that Schneider made a maintenance entry in the discrepancy log 

that was carried on the aircraft, and that it caunot produce this document because the discrepancy 

log was lost in the fire that destroyed the aircraft. At his deposition, Schneider admitted that the 

June 13, 2011 maintenance log entry was not made until after the flight, and after consulting with 

Miller as to what the appropriate text for the entry was. C26 at 45-46; see C3 at 8. When 

specifically asked at the deposition about how the aircraft was approved for return to service, 

Schneider had no recollection of having made an entry in the discrepancy log. C26 at 61. As a 

result, the FAA amended the complaint to include an allegation concerning this failure. 

Subsequently, Schneider testified at hearing that he had made an entry in the aircraft's 

discrepancy log, although he provided no detail as to the contents of that entry. T34 at 157. 

According to Schneider, the source of this information was the pilot on the flight, John Hess. 

Hess testified at the hearing, indicating that a discrepancy log entry had been made - but while 

Hess testified that he believed that the discrepancy log entry was appropriate, he also could 

provide no details as its contents. T3 at 121-23; Rll at 1-2. 

Resolving this matter presents a credibility question for the Judge, which the Judge 

should resolve in favor of Schneider's initial deposition testimony, and against Schneider's later 

hearing testimony. First, all other things being equal, Schneider's original testimony is more 

credible- it was earlier in time, it was a frank admission on a subject that Schneider had not yet 

34 
discussed with his attorney, and it was made without realization of the consequences of the 

admission. The hearing testimony, on the other hand, was later in time, was only made after 

consultation with his attorney, and was only made after it was known that Respondent was facing 

monetary consequences for the conduct. On this alone the Judge should credit the deposition 

testimony that no maintenance log entry was made. Other factors also weigh against crediting the 

hearing testimony. In addition to the motivation to fabricate, the hearing testimony did not 

appear to be based on any actual recollection, but rather on Hess's assumptions. Schneider did 

not remember making the discrepancy log entry, but rather believed that he had because Hess 

said that he had. See T3 at 157. And Hess could not remember anything about the discrepancy 

log entry, but rather relied on the assumption that he was an experienced pilot who knew that a 

log entry was required, and so "remembered" that one must have been made and that it must 

have been appropriate. See T3 at 121-23. Additionally, the story presented at hearing does not 

explain why Schneider had to call Miller to find out what the appropriate language was for the 

maintenance log entry- if Schneider had already made a log entry for the repair, why would he 

need Miller to draft one for him? 

The credible evidence from Schneider's deposition indicates that no maintenance log 

entry was made for the June 2011 repair before the aircraft was operated on June 13, 2011. As a 

result, Respondent violated§ 43.5(a) and§ 91.407(a)(2). 

XI. The June 2011 Repair Provided Additional Reasons Why The Aircraft Was 

Unairworthy 

As discussed in Parts VI and VIII above, the aircraft was unairworthy at all times after 

the February 2011, alteration. In addition to reasons relating to the February 2011, alteration, the 

aircraft was unairworthy as a result of the June 13, 2011, repair. 

35 
As discussed in Part VI above, an aircraft is unairworthy if it fails to meet its type 

certificate or type design, and there are numerous ways in which an aircraft can fail to meet its 

type certificate or type design. 

As discussed in Parts VIII and IX above, the June 2011 repair was improperly performed, 

no FAA Form 337 was completed, and the aircraft was approved for return to service by a 

mechanic who was not authorized to do so. Either the improper repair or unauthorized return to 

service are sufficient, standing alone, to render N390TH unairworthy. See Husted, Order 2010-9; 

T2 at 75-76, 83; C32 ~ 35; C33 ~ 35. 

Additionally, as with the alteration, this repair was one that was not described in the 

aircraft's maintenance manuals and, under the terms of the type certificate, therefore had to be 

presented to and approved by the FAA, which it was not, thus rendering the aircraft out of 

conformance with its type certificate or type design, and unairworthy. See C2 at 1 n.3; Tl at 13 3; 

T2 at 93-94; see also T2 at 132-93. 

Each of these reasons provides an independent basis for determining that the aircraft was 

unairworthy at the time of the June 13, 2011, final flight, and therefore an additional reason why 

Respondent's operation of that flight violated§ 91.7. 

XII. Respondent's Second Affirmative Defense Fails 

Respondent presents two affirmative defenses, under which it argues that it is not 

responsible for any of the operational violations described above. First, that it justifiably relied 

on Schneider. Second, that it relied on the advice of two FAA Aviation Safety Inspectors. Both 

defenses fail. The second will be addressed here, and the first in Part XIII below. 

Respondent's second affirmative defense- presented in its Answer, but largely ignored 

since - is that it is shielded from liability for its violations because it spoke with two of its 

36 
volunteers who happened to be FAA inspectors. According to Fowler and Schneider, they had a 

conference call with David Miller and David Alderman prior to approving the aircraft for return 

to service, and during this conversation Miller and Alderman has advised them as to whether the 

alteration was an alteration or a repair, whether it was major or minor, and that the inspectors 

drafted the maintenance log entry. T3 at 160-63; C26 at 16-17; RIA at 15-16, 18; R2 at 2. Even 

if this sequence of events is to be believed (and it should not be), these facts would not form a 

defense to the violations charged. There is no legal basis for the notion that the oral 

representation of an employee of the FAA forms a bar on a subsequent fmding of violation. 

Simply put, the individual opinion of an individual employee does not give a Respondent carte 

blanche to perform improper maintenance and operate unairworthy aircraft. 

Regardless, the version of events presented by Respondent is a complete fabrication. It is 

clear that the actual course of events was that Respondent did not contact Miller and Alderman 

until after Respondent was already operating the aircraft, and even then Respondent 

misrepresented to Miller and Aldennan the nature of the work it had performed on the aircraft. 

As Inspector Alderman explicitly testified at hearing, the conversation with Fowler and 

Schneider did not take place until March 20 II, and Alderman knew this because he had never 

met or spoken to Schneider prior to meeting him while volunteering to work on the aircraft in 

March 2011. T2 at 14, 19, 25; C36 '1]3. And even then the full extent of the alteration was not 

revealed. T2 at 19; C36 '1]5. 

Inspector Alderman's testimony was corroborated by Respondent's former Director of 

Maintenance, Timothy Bourgoine. Bourgoine also spoke with Schneider in March 2011, after the 

aircraft had been operated, and Schneider admitted to Bourgoine that Respondent still hadn't 

completed the paperwork for the alteration. T1 at 7 4-7 5; C3 5 '1]1 0, 13. Bourgoine later spoke 

37 
with Fowler (after Fowler was alerted that Bourgoine had spoken with Miller about the fuel tank 

work), and Fowler said that Respondent had presented full information to Miller - but when 

Bourgoine conferred with Miller, he learned that Fowler had not actually told Miller what had 

been done with the aircraft. T1 at 76-78; C35 ~~ 11-12. 

Respondent's lack of credibility in this sequence of events is emphasized by Fowler's 

apparent inability to keep his story straight when it comes to the reasons for fabricating new fuel 

tanks by welding up the existing support shells. At his original deposition, Fowler had insisted 

that the Respondent had not saved any money by switching to the welding alteration, and that 

cost had no effect on the decision. RIA at 18-19. But Fowler later admitted that Respondent had 

actually saved tens of thousands of dollars by doing Underwood's welding project instead of 

using an engineer or DAR. RIB at 37-38. 

Respondent's story of relying on FAA inspectors is a fabrication- a sad effort to throw 

its volunteers under the bus rather than taking responsibility for its decisions. In reality, the 

Respondent did not consult with these volunteers until after it was flying the aircraft, and even 

then concealed the true nature of the alteration from them. And even if the events as presented by 

Respondent were accurate, there is no legal basis for excusing a Respondent's violations based 

on an informal opinion from mechanics not involved in an alteration, even where those 

mechanics happen to be FAA employees. Respondent's second affirmative defense fails. 

XIII. Respondent Cannot Escape Responsibility for Its Regulatory Violations 

Respondent's first affirmative defense and the FAA's allegations regarding Schneider's 

agency status presented legally distinct but factually intertwined issues, and so will be presented 

here together. The regulations violated in this case fall into two categories: (1) regulations that 

38 
apply to the owner or operator of the aircraft; and (2) regulations that apply to individuals 

performing maintenance on the aircraft, or approving it for return to service. 

As alleged in the Amended Complaint, Respondent is liable for both categories of 

violation. It is directly responsible for the first category of violations (that apply to owners and 

operators), and it is vicariously responsible for the second category through its Director of 

Maintenance, Rodney Schneider. 

Respondent asserts that its Director of Maintenance was not its agent with respect to 

performing maintenance and that, therefore, it is not responsible for his conduct or the second 

category of violations. A determination that Schneider was not Respondent's agent would not 

absolve Respondent of its direct responsibility for the first category of violations. Respondent's 

first affirmative defense is that it was entitled to rely absolutely on Schneider's approval for 

return to service. Schneider's signature on a maintenance record entry, Respondent claims, 

absolves it of any legal responsibility for Respondent's subsequent operation of the aircraft and 

for its failures as owner of the aircraft to ensure that appropriate maintenance records were made. 

The evidence at hearing demonstrates that Respondent is responsible for both categories 

of violation. This evidence bears reviewing. With regards to the February 2011 alteration, 

although none of the individuals involved appears willing to personally admit responsibility, the 

evidence clearly indicates that all of the decisions were made by Fowler (Respondent's Chief 

Pilot and Executive Director) and Underwood (Respondent's representative at hearing). In his 

deposition testimony, Fowler presents the decision in passive voice and attempts to diffuse 

responsibility. RIA at 13-14 (stating that "at some point the decision was made"); RIA at 18 

(stating that Schneider made the decision "through discussions he had with the group)." But 

Schneider unequivocally stated that he did not make the decision to perform the alteration - it 

39 
was Underwood who informed him of the decision, after consultation with Fowler. T3 at 159, 

175; C26 at 18; see also R2 at I (Fowler's declaration stating that "Schneider has never had 

authority to make decisions about what maintenance to perform"). It was Underwood who 

presented the idea of fabricating new fuel tanks by welding the existing support shells and who 

managed the project. Schneider was not directly involved with the fabrication of the new fuel 

tanks - he participated in removing the original bladder tanks and support shells, but it was 

Underwood who handled the fabrication of the new fuel tanks, including the fabrication of new 

attach points to be welded onto the shells. T4 at 38; T3 at 167, 176; C26 at 17; RIO at 2; Rl2 '\[4; 

see generally Rl2. Fowler was involved in the decision-making process every step of the way, 

including personal observations of the work being performed. RIA at 14-15, 19-20. Schneider's 

signature was the one ultimately placed on the maintenance log entry (because he was the only 

mechanic involved), but he relied on Underwood for the determination of whether the welding 

was appropriate. C26 at 52. Further, although this story is a fabrication, Schneider and Fowler's 

own version of events is that Schneider did not even know what to write for the maintenance log 

entry, but relied on Miller and Alderman to draft the log entry for him. T3 at 162-63; C26 at 16-

17; R2 at 2. In short, with regards to the February 2011 alteration, the entire process was run by 

Fowler and Underwood, with Schneider's participation being limited to helping remove 

components from the aircraft at the beginning and then writing his name and certificate number 

on the maintenance log entry at the end 

With regards to the June 2011 repair, we again see Underwood involved in the process 

and Fowler fully informed of the process. T3 at 108-12, 131; C26 at 44; C27 at 34-35. 

These facts, when applied to the legal principles involved, demonstrate that Respondent 

is responsible for both categories of violation. The February 2011 alteration and June 2011 repair 

40 
were, in a legal sense, perfonned by Schneider, Respondent's Director of Maintenance, in that he 

was willing to "supervise" and use his mechanic certificate to approve the aircraft for return to 

service. However, it has become clear that Schneider's role - especially with regards to the 

February 2011 alteration- was a pro forma one. He did not make decisions, but rather did what 

Underwood and Fowler told him to do, while Underwood managed the project (including 

fabrication of components) with Fowler's blessing. These facts are fatal to Respondent's 

position. Because Schneider was simply going along with Respondent's decisions and following 

Respondent's instructions, that makes him Respondent's agent, and makes Respondent 

vicariously liable for the regulatory violations committed by Schneider at Respondent's behest. 

Further, Respondent's position that it was somehow entitled to rely on Schneider's approvals for 

return to service (via maintenance log entries that, according to Schneider, he had to ask others 

how to write) in these circumstances is laughable. Respondent was fully aware of everything that 

had been done with the aircraft. Schneider was not some outside mechanic provide expert advice 

upon which Respondent was relying - rather, he was an in-house mechanic who provided no 

pertinent expertise, but instead operated as directed by Fowler and Underwood. 

Having directly made the decisions about the alterations and repairs as charged in the 

Complaint - and then the decisions to operate the aircraft after those repairs and alterations -

Respondent cannot now excuse itself from regulatory liability for its unsafe conduct. 

XIV. The Sanction Imposed Is Appropriate 

As discussed at hearing, the FAA's sanction calculations are based on the number of acts 

of violation, rather than the number of individual regulations violated. In this case, fourteen acts 

of violation were used- 12 flights between February 24, 2011 and June 12, 2011, the final flight 

on June 13, 2011, and Schneider's failure to make a maintenance log entry for the June 2011 

41 
repair before returning the aircraft to service6 A penalty of $43,250 was imposed for the 13 

original acts of violation, with an additional $6,600 imposed in the Amended Complaint for the 

failure to make any maintenance log entry for the June 2011 repair prior to operating the aircraft. 

Although the Judge is not bound by the FAA's sanction guidance, found in FAA Order 

2150.3B (excerpts of which were admitted into evidence as C38), it is ultimately helpful to 

examine the Order in that any appeal in this case will go back to the agency, which is bound by 

that sanction guidance. See In the Matter of Scott Novak, FAA Order No. 2014-1 (2014). 

As an initial matter, the evidence presented more than supports the FAA's contention that 

at least 12 flights took place from February 24, 2011 through June 12,2011. Indeed, the evidence 

indicates that Respondent operated the aircraft on over a hundred flights during that time period. 

The FAA's calculation of the number of flights was based on the number of hours flown and the 

maximum cruising time of the aircraft, which meant that the aircraft would have made a 

minimum of 12 flights in the 104.3 hours of flight time. C3 at 4, 8; T2 at 188-89. However, the 

time frame at issue here was during Respondent's tour season, when it operated the aircraft 10-

35 times a week, on flights usually lasting half an hour orless. Tl at 56-58. Over the 104.3 hours 

and the months of March, April, May, and part of June, the aircraft would not have flown 12 

flights of eight to nine hours each, but rather 140 to 200 much shorter flights. 

As explained at hearing, the applicable sanction guidance range for operation of an 

unairworthy aircraft is Moderate ($2200- $4399) to Maximum ($4400- $11000). T3 at 16-17; 

C38 at B-6; C-38 at B-14, Fig. B-1-1(2). Respondent's actions here could have easily justified a 

much larger penalty- for example, a hundred flights at the middle of the range ($6600) would 

6 Although the Amended Complaint charges Respondent with regulatory violations for the underlying maintenance 

and log entries from February 2011 and June 20 II, no independent act of violation was singled out for these 

violations, and no enhancement of the proposed penalty was applied. Accordingly, the question of whether 

Schneider was Respondent's agent pertains only to the $6,600 penalty imposed for the failure to make a 

maintenance log entry prior to approving the aircraft for return to service on June 13, 2011. 

42 
have produced a civil penalty of $75,000 even when the most lenient multi-flight penalty cap 

was applied (down from $660,000 without the cap), treating the violations as inadvertent7 and 

non-systemic. See C3 8 at 7-13, Fig. 7 -I. Instead, the FAA has imposed a very lenient penalty, 

using an unrealistically conservative number of flights and applying a penalty per act of violation 

that falls in the middle of the Moderate range, rather than in the middle of full Moderate to 

Maximum range called for by the sanction guidance. There is no basis for concluding that this 

penalty is inappropriately high. 

With regards to the failure to make any maintenance log entry for the June 2011 repair 

prior to operating the aircraft, the closest entry in the sanction guidance (for an incomplete or 

unsigned release) calls for a Minimum to Maximum penalty ($550 to $11000). T3 at 16-19; C38 

at B-6; C38 at B-13, Fig. B-1-g(l). Here, the actual conduct was significantly worse than that 

described by the closest entry in the sanction guidance - the maintenance entry was not simply 

incomplete or unsigned, it was not made at all. Further, the conduct was deliberate and not 

inadvertant. Both of these are aggravating factors. See C-38 at 7-5 (noting that conduct that is not 

inadvertent, or that is deliberate, is an aggravating factor), 7-6 (noting that a more or less severe 

iteration of a particular offense is a mitigating or aggravating factor). Accordingly, the penalty 

imposed is not at the midpoint ofthe full Minimum to Maximum range (which would be $5775), 

but is at the midpoint of the Moderate to Maximum range of $6600. This penalty is appropriate 

for a violation of this nature. 

CONCLUSION 

The evidence at hearing demonstrated that (1) Respondent had improperly performed a 

major alteration on civil aircraft N390TH in February 2011 by fabricating fuel tanks by welding; 

(2) this rendered the aircraft unairworthy; (3) Respondent repeatedly operated the aircraft in an 

7 Even this would be generous, as it is difficult to describe Respondent's conduct as "inadvertent." 

43 
unairworthy condition; ( 4) Respondent improperly repaired a fuel leak in one of the newlyfabricated tanks; (5) no approval for return to service was executed for this repair before the 

aircraft was operated; and ( 6) the improper repair provided further reasons why the aircraft was 

unairworthy. The FAA presented evidence demonstrating each violation alleged in the Amended 

Complaint. Respondent, on the other hand, presented no evidence at all on many of the issues in 

this case. Judgment should be granted to the FAA on all allegations and for the full civil penalty 

proposed. 

WHEREFORE, Complainant respectfully requests that the Judge grant judgment to the FAA, 

and affirm the Amended Complaint in its entirety, including the sanction imposed. 

f'\ 

Respectfully submitted this?_ { day of June, 2014. 

&PH!* R. ST ~ENSON Attorney 

Office of the Regional Counsel 

44 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Closing Argument 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 2W1 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 (E11-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Stuart A. Goldstein, P .A. 

7300 North Kendall Drive, Suite 380 

Miami, FL 33156 

Facsimile: (305) 400-0685 

~J:w~GS Program Analyst 

Office of the Regional Counsel 

JUN 3 0 20tlfi. 

Dated 

45