## u.s. DEPARTMENT OF TRANSPORTATION

# RE·CEIVED

. OFFICE OF HEARINGS FEDERALAVIATIONADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant, 

## SEP - 82014 

## HEARING DOCKET

vs. DocketNo. FAA-2012-0477 FAA CaseNo. 2011GL030070 LIBERTY FOUNDATION, Respondent. Judge Sullivan
FAA'S REBUTTAL CLOSINGARGUMENT At hearing in this matter, the FAA presented multiple expert witnesses, who testified about the numerous deficiencies in Respondent's alteration ofN390TH. Respondent, however, presented almost no evidence concerning whether its alteration and a later repair were appropriate or whether its actions constituted violations ofthe Federal Aviation Regulations. Similarly, Respondent in its closing argument largely foregoes reliance on its evidence at hearing, instead relying on opposing counsel's personal-opinions as presented in its brief and asking the Judge to favor those opinions over the expert testimony presented by the FAA at hearing. Judgment shouldbe found infavor ofthe FAA in all regards. I. The February 24, 2011, Maintenance Record Entry Did Not Describe The Work Performed · · · Respondent discusses the question ofwhether§ 43.9(a) was violated by the February 24, 2011, maintenance log entry, but presents no argument the maintenance record entry accurately described the work performed. See Respondent's Closing Argument at 12-14. Respondent instead argues that it did not violate 

### §43.9(a) because Schneider called Dave Alderman and

1Dave Miller about the maintenance log entry. Jd. Respondent falsely asserts that Inspector Alderman did not testify that no such conversation did not take place, see id. at 14, ignoring Alderman's explicitly testimony that he had never spoken with Schneider before March 2011, which was after the aircraft had resumed flying. T2 at 14, 19, 25; see also C36

**~** 3. The conversation that took place between Miller, Alderman, Schneider, and Fowler in March 2011 could not possibly have formed the basis for Respondent's February 24, 2011 maintenance log entry. Further, as a general matter, Respondent presents no reason why, even if Schneider had spoken withAldermanprior to executing the inaccurate maintenance entry, this would somehow
meanthat§ 43.9(a) had notbeenviolated. Withregards to §91.407(a), Respondent argues that itdidnotviolatethis sectionbecause Schneider was a certified mechanic. Respondent's Closing Argument at 14-15. This argument is baffling, inasmuch as it fails to address any matter at issue in this case. Section 91.407(a) prohibits (among other things) the operation of an aircraft when the maintenance record entry required by §43.9 has not been made. Section 43.9 requires thatthe entry include a description ofthe work performed and, as discussed inthe FAA's Closing Argument, the February 24, 2011 maintenance record entry did not contain an accurate description of the work performed, but rather a description of some other sequence ofevents that was not the work performed on the aircraft. Further, Respondent's Executive Director, Fowler, was aware ofexactly what had been done withthe aircraft and exactlywhatthe text ofthe maintenance log entry was, and bothknew and shouldhave knownthatthe entrywas not accurate. Section 43.9(a) was violated because, as Respondent does not now dispute, the February 24, 2011 maintenance record entry did not include a description ofthe work actually performed

onthe aircraft, and§ 91.407(a)(2) wasrepeatedly violatedwhen Respondent operatedthe aircraft

2without the appropriate §43.9 maintenance record entry, despite its knowledge ofthe entry's inaccuracy. II. The AlterationWas AMajorAlteration Respondent argues that the February 2011 alteration of the aircraft was not a major alteration, but having been unable to present any evidence directly on point, primarily relies on the personal opinions of its attorney, rather than any evidence presented at hearing. See Respondent's Closing Argument at 15-31. For example, Respondent argues at length that the alteration was not a major alterationbecause there were many fuel system components that were not changed and that it "only" performed a total replacement ofthe fuel tanks, but presents no evidence as to why "only" changing the fuel tanks would notbe a major alteration. !d.at 18, 20- 21. The FAA presented ample expert evidence at hearing as to how the alteration could affect various characteristics of the aircraft relating to airworthiness. This evidence included the undisputed fact that the Administrator had already concluded that fuel tanks (the single most important component in the fuel system) are so important that any alteration to or addition ofa permanent fuel tank is a major alteration. Respondent, by contrast, presentedno evidence on this subject.Respondent further argues thatthe alterationwas not amajor alterationbecause it did not change the purpose ofthe fuel system. See Respondent's Closing Argument at 21-22,24. This argument finds no purchase in fact, law, or common sense. Apparently, to the Respondent, an alteration ofthe fuel system wouldnotbe a major alteration unless that alteration made it not be

a fuel system at all. According to the Respondent's argument, so long as the purpose ofits final result is to "store and deliver clean fuel to the engines," then it can do anything it wants to the fuel system and it would not be a major alteration. And, again, this is an argument advanced by

3Respondent not based on the evidence at hearing

- no testimony or document indicated that an alteration is major alteration only ifit changes the entire purpose ofthe system being altered

- butrather based only onthe personal opinions ofopposing counsel. Respondent complains at length that the expert opinions of the FAA's witnesses are "conjecture"becausethey were notpersonallypresentwhenthe maintenance was performed, but
seems oblivious to the fact that is standard practice for an expert to testify about the significance ofa sequence ofevents where the expert did notpersonally observe the events. Indeed, it would be a rare case in which an FAA expert witness was present while improper maintenance was being performed. 1 Rather, these witnesses properly based their expert opinions on their existing knowledge, their study of maintenance manuals and other pertinent documents, review of photographs ofthe work inprogress, and review ofthe descriptions ofthe work performed given by those who performed it. For example, all ofthe experts accurately concluded that, with the bladder fuel tanks removed, the new fuel tanks would have a higher fuel capacity, yet Respondent attacks the FAA's experts for having reached this accurate conclusion without personally measuring the fuel capacity ofthe aircraft, see, e.g., Respondent's Closing Argument at 27, 30. ButRespondent's ownwitnesses athearing ultimately agreedthatthe fuel capacity had increased, contradicting their ownprior declarations thatthe fuel capacityhad not changed. Respondent, in attacking the FAA's witnesses for notbeing able to identify precisely the changes infuel capacity orthe stresses placeduponthe wing structures also appears to forgetthe standard for whether an alteration is a major alteration, and the FAA's burden ofproofin this
case. All that is required for an alteration to be a major alteration is the possibility that the alteration will affect characteristics relating to the airworthiness ofthe aircraft. 14 C.P.R.§ 1.1.

1For example, ifan FAAinspectorpersonally observedimpropermaintenance in progress, tbe inspectorwould typicallytake actiontopreventthe aircraft from beingreturnedto service in anunairwortby condition, tbus obviatingtbeneed for any subsequent legal action. 4Because the alteration here could have a noticeable effect on those characteristics, the FARs required Respondent to take additional steps
- such as using a mechanic with an inspection authorization and completing a Form 3 3 7

- that would determine the precise nature ofthese effects and the extent ofthe safety hazard they might present. Itis the need for such an analysis that makes the alteration a major alteration, not the results of such an analysis. To sustain the allegation that the alteration was a major alteration, the FAA does not have to prove precisely what the results ofthis additional analysis would have been, but only that the analysis should have been performed, and was not. The regulations at issue required that Respondent perform such an analysis (or rely on an analysis performed by appropriate individuals), and then present that analysis to the FAA for approval (either directly or through an appropriate designee) before returning the aircraftto service,2much less operating it. During this litigation, the FAA has asserted that one ofthe problems with the alteration performedbyRespondent is that a hard-shell aluminum tank is susceptible to vibrational stresses in a way that the bladder tanks were not, and presented evidence on this topic at hearing. In its closing argument, Respondent asserts that this claim is without basis and is, indeed, "frivolous." See Respondent's Closing Argument at 28. Respondent's continued assertions in this regard are baffling. Not onlyhas unrebutted evidencebeen presented onthis point, but (as the FAA noted in its Reply in Support of Motion for Summary Judgment), the Federal Aviation Regulations explicitly provide that, during the original certification process, metallic fuel tanks must be subjectedto additional vibrational testing. See, e.g., 14 C.P.R. 

### §25.965(b) (requiring vibrational testing for metallic fuel tanks on transport category aircraft). Again, rather than relying on any

2 Such an analysis mightbepossiblebeforethe alteration is performed, butthere is typically no regulatoryviolation ifmaintenance or an alteration is performed andthe aircraft is neverreturned to service. 5evidence or law to contradict the facts presented and regulations cited by the FAA, Respondent merelyrelies onthepersonal opinionofopposing counsel. The one piece ofaviation-related evidence that Respondent points to is the testimony of its paid "expert," which was addressed in the FAA's Closing Argument. See Closing Argument at 22-23. As notedthere, Norville was never qualified to offer, and did not offer, any opinion on whether the February 2011 alteration was a major alteration, andhis definition of"change in the basic design" was unexplained and incoherent. His defmition seemed to effectively be that any change to any fuel system component other than the fuel tank was a major alteration, and that anything that changedthe weight and balance ofthe aircraft was a major alteration, except when itwasn't. On the question of whether the alteration could be performed usmg elementary operations, Respondent relies entirely on the testimony ofDavid Wilkins that the welding was "non-complex and simple." See Respondent's Closing Argument at 29-30. As discussed in the FAA's closing argument, the opinion of an expert welder with decades of experience as to whether a particular kind ofwelding is "simple" or "non-complex" in the technical parlance of welders (which seemed to relate exclusively to the physical position ofthe welder with relation to the objectto be welded, such as whether the welder wouldhave to be under the object) has no relevance to whether it is an "elementary operation" as that term is used in FAR 1.1. As discussed in expert aviation testimony at hearing, the alteration performed onthe aircraft could not beperformedusing elementaryoperations. Respondent does not address whether it performed the alteration in accordance with accepted practices. See generally Respondent's Closing Argument.

6The evidence at hearing demonstrated thatthe alteration was a major alteration, with the consequences outlined in the FAA's Closing Argument, see Closing Argument at 25-26, and Respondent accordingly violated§§ 43.5(b), 43.7(a), 43.9(d), and 91.407(a)(l). III. The AlterationWas NotProperly Performed A repair or alteration is properly performed when done in accordance with the manufacturer's maintenance manual, instructions for continued airworthiness, or (should an individual choose to perform a repair or alteration outside ofthese established sources) other a methods, techniques, and practices acceptable to the Admiuistrator. At hearing, the FAA presented multiple experts, who were representatives ofthe Admiuistrator, who testified that the alteration was not performed in a manner acceptable to the Administrator. Respondent does not address this testimony. Instead, Respondent relies exclusively on Advisory Circular 43.13-lB, which on its face ouly to "inspections and repairs," not alterations3 See Exhibit R-21. Respondent did not present a single sentence oftestimony as to why AC 43-13.lB would apply in this case, and even in the personal opinions of opposing counsel upon which it relies, Respondent does not address why an AC that expressly does not apply to alterations is pertinent to this case. Further, AC 43.13-lB explicitly only applies to "minor repairs," and explicitly notes that with regards to major repairs the methods listed in the AC may only be used as a basis for a separate FAA approval ofa particular major repair. Exhibit R-21 at 1 (Purpose). As discussed extensively elsewhere, the replacement ofthe bladder fuel tanks with aluminum fuel tanks was a major alteration, not a minor alteration. But even ifit had been a major repair, AC 43.13-lB

3 Advisory Circular43.13-2B covers "Acceptable Methods, Techniques, andPractices- AircraftAlterations," and makes no mention ofwelding. Undertheregulations, inspections andrepairs areboth subtypes of"maintenance," while alterations arenot 7would not, standing alone, suffice as an "approval" by the Administrator ofany ofthe methods, techniques, or practices described inthe AC. Additionally, even ifAC 43-13-lB applied to alterations, or was an approval for major repairs or alterations, eventhe particular minor repair method approved ofin the AC would not encompass the alteration performed here. The AC provides that "welded or riveted fuel tanlcs that are made ofcommerciallypure aluminum, 3003, 5052, or similar alloys, may be repaired by welding." Exhibit R-21 at 8-19, 

### 'If 8-32. First, the "fueltank" that existedpriorto the welding was not a "welded or riveted" fuel tank. Second, the two kinds ofaluminum alloy referenced in the AC are 3003 and 5052, but the aluminum shells used to fabricate the fuel tanks in this case were made of 1100 series aluminum. Compare Exhibit R-21 at 8-19, 

### 'If 8-32 with R-10 at 1; R-12 

### 'If 3. Again, the AC simplyhas no applicability to the workperformed. Athearing, the FAApresented experttestimony as to the flaws in Respondent's alteration process. Respondent presented no evidence whatsoever in response, and Respondent's only argument on this issue is to point to an Advisory Circular that only applies to minor repairs on certain kinds ofwelded or riveted fuel tanks, an AC that under its own explicit terms has no applicability here. Essentially, Respondent asks the Judge to ignore the evidence, including both expert testimony and the actual text ofdocuments, in favor ofthe personal opinion ofopposing counsel that the Administrator should find a particular technique and methodology acceptable in this situation. The Judge should find that the February 2011 alteration was improperly performed, inviolation of§ 43.13(a). With regards to §43.13(b), Respondent likewise presented no evidence. In its Closing Argument, Respondent asserts that Schneider andNorville opined that the alteration restored the aircraft to at least its originally or properly altered condition, see Closing Argument at 34, but

8Respondentprovides no citationfor this statement andNorville and Schneiderwerenot qualified to offer such opinions and offered no such opinions.4 The Judge should find that the improper alteration also violated § 4 3.13(b) IV. The AircraftWasNotInAnAirworthy ConditionAftertheFebruary2011 Alteration At hearing, the FAA presented extensive evidence concerning the unairworthiness of N390TH after the February 2011 alteration, and in closing argument the FAA identified at least six different reasons why the aircraft was unairworthy. In its closing argument, Respondent ignores four ofthese reasons, butdoes present arguments onthe othertwo. As both parties have discussed, an aircraft airworthy only when it is (1) in conformance withits type certificate andtype design; and (2) is in a condition for safe operation. As the FAA discussed in its closing argument, an aircraft can be out ofconformance with its type certificate and type design for numerous reasons, such as missing an inspection, improper performance of maintenance, or a major repair/alterationbeingperformedby anunapprovedindividual without a Form 337. See Closing Argument at 30. As the evidence at hearing demonstrated, the February 20ll alteration rendered N390TH unairworthy because (l)the alteration was improperly performed, (2) no approved data was used to support the alteration, (3) Schneider was not authorized to return an aircraftto service after a major alteration, andno Form 337 was executed after the major alteration. Additionally, evidence at hearing demonstrated that (4) N390TH was
no longer in conformance with its type design. Each ofthese reasons independently rendered the aircraft unairworthy, butRespondent simplyignoresthem. Respondentinstead focuses only onthe two-pagetype certificate andwhetherthe aircraft
was safe for flight. See Response ClosingArgument at 34-38.

4 Schneider did assertthatthemethods andtechniques usedinthe alteration were consistentwith those thathehad seenused inhis aviation career, butwas unableto identifyparticular occasion ofsuch an alteration, andthis testimony wasregardless contradictedby Schneider's admissions inthe certificate action case againsthim. 9With regards to the type certificate itself, the FAA argued, based on the testimony of multiple expert witnesses, that N390TH was not in conformance with the type certificate after the alteration because the type certificate provides that "If any repairs or modifications (other thanthose covered inthe pertinent Army orNavyrepair manual) are made prior to or subsequent to NL certification, it is the responsibility ofthe owner to furnish sufficient evidence to a Civil Aeronautics Administration [now the Federal Aviation Administration] representative to show that the modified airplane maintains the same degree ofairworthiness as the original." Exhibit C2 at I. Respondent seeks to attack this expert testimony and argument by pointing to the proceeding sentence ofthe type certificate, which provides that "All structural repairs should be made in accordance with Army T.O. Ol-20E-3." See Response Closing Argument at 36. This attack fails. Respondent's argument on this point has two prongs. First, Respondent argues that because the first sentence ofNote 3 spealcs specifically to structural repairs, the entirety ofNote 3 is "completely inapplicable" to the alteration at issue in this case. See Response Closing Argument at 36. However, the explicit language ofthe second sentence ofNote 3 applies to "repairs or modifications." Exhibit C-2 at I (emphasis added). Respondent's assertion that Note 3 applies only to repairs is contradicted by the explicit language ofNote 3 itself, as well as the experttestimony presented athearing. Second, Respondent argues that the FAA never presented Army T.O. No. Ol-20E-3, and
so the FAA could not possibly have shown non-conformance with the type certificate. Army T.O. No. Ol-20E-3 was the Handbook ofStructural Repair Instructions in effect at the time of the original issuance of the type certificate. We know this because the final version of the Handbook of Structural Repair Instructions, T.O. IB-17G-3, was placed into evidence by the

10Respondent, andthe coverpage ofthat handbook explicitly notes that itwas "FORMERLYT.O. No. 01-20E-3"). Exhibit R-15 at 1 (capitalizationin original). The current and applicable version of T.O. No. 01-20E-3 was in evidence at hearing. More significantly, however, is that the Handbook of Structural Repair Instructions is irrelevant in this case because, as is undisputed, the work performed in February 2011 was not a repair, and was not performed on a structural component. The first sentence ofNote 3 of the type certificate reference T.O. No. Ol-20E-3 because that sentence is expressly addressing only the performance of structural repairs. The second and relevant sentence is not so limited. Additionally, even setting aside the irrelevance of the contents ofT.O. No. Ol-20E-3, Respondent's argument on this point is quite odd in light of the undisputed testimony and agreement ofwitnesses on both sides that this alteration was not contained in any manual for the aircraft. Again, all ofthe evidence athearing supports the FAA's position, and the Respondent instead relies exclusively on the personal opinions of opposing counsel. Regarding whether the aircraft was in a condition for safe operation, Respondent again presented no evidence, and now simply asks the Judge to ignore the expert opinions proffered at hearing. 

### See Response Closing Argument at 36-37. In its argument on this point, Respondent misstates the evidence and the FAA's argument. Contraryto whatRespondent suggests, the FAA does not argue that any subsequentfailure ofa componentmeans thatthe original workmadethe aircraft unsafe for flight. However, some component failures do indicate a flaw in the original work that rendered the aircraft unsafe for flight, and the uncontested expert testimony presented at hearing was that in these circumstances the failure ofthe new fuel tanks after less than four months does mean that the original alteration was flawed and rendered the aircraft unsafe for flight.

11V. The June 2011 Repair Was Improperly Performed, The June 2011 Repair Was A Major Repair, andthe June 2011 RepairRenderedthe AircraftUnairworthy Respondent renews in its closing argument its objection that the FAA never put it on notice that the FAA was alleging that one ofthe reasons that the June 2011 repair was improper
was because it was a major repair. Respondent's Closing Argument at 5-8. This objection remains without foundation. The FAA's Complaint and Amended Complaint alleged that the repair was improper, and through the course oflitigation the FAA amply informed Respondent of the bases for that allegation, including the basis that the repair was a major repair. Of particular note is that the FAA devoted a section ofits Motion for Summary Judgment, filed a year before the hearing, to arguingthatthe repair was amajor repair, including the attachment of multiple expert affidavits on the subject. See FAA's Motion for Summary Judgment at 34-35. The allegations in the Complaint and Amended Complaint were more than sufficient for Respondent to be placed on notice ofthe nature ofthe allegations against it, and the details of those allegations were provided during the course oflitigation. Respondent alternatively argues that the repair was not a major repair and was properly performed, but its arguments amount to mere personal disagreement with the expert opinions provided at hearing. See Respondent's Closing Argument at 8-11. Respondent simply asserts that, because its mechanics believed the repair was proper, it musthave beenproper. Id. at 9-10. As discussed in the FAA's closing argument, the FAA's experts described multiple problems with the repair and several reasons why the repair was a major repair, and Respondent simply ignores this evidence except to speculate as to how firm the instructions for the sealant were concerning where it should be applied.5 Respondent's entire, if limited, argument concerning

5 Respondent complains thatthe FAAmade a "false and misleading" statement in its closing argument by stating thatthe aircraftwas lost "duringthe flight" ofJune 13, 2011. Respondent's ClosingArgument at 10 n.7. It is undisputed that the aircraft caughtfrre during the flight ofJune 13,2011,thatthe aircraftmade a forced landing in a 12whether the repair was a major repair also ignores the expert testimony in favor offocusing on a "definition" that is not actually the definition of major repair. See Respondent's Closing Argument at II. The unrebutted testimony of experts at hearing provided ample evidence in support ofthe FAA's allegations inthis regard. Respondent does not dispute the FAA's argument that, if the repair was improperly performed and/or was a major alteration, the repair provided additional reasons why the aircraft
was unairworthy. VI. No Maintenance Record Entrv Was Made For The June 2011 Repair Before The Aircraft Was Operated In its closing argument, Respondent asserts that there is no evidence at all to support the allegation that Respondent failed to make a maintenance entry for the June 2011 repair before the aircraft was returned to service. Respondent's Closing Argument at 4-5, 11-12. As discussed in the FAA's closing argument, this is not the case, as Schneider testified at his deposition that he had not made such an entry. C26 at 45-46; see C3 at 8. As also discussed in the FAA's Closing Argument, itremains for the Judge to determine whetherto credit Schneider's admission athis depositionthathe made no maintenance log entrypriorto the aircraft operating onJune 13, 2011, or whether to credithis later "recollection" at hearingthathe actuallyhad made an entry in the aircraft's subsequently-destroyed discrepancy log. VII. Respondent's Second Affirmative Defense Fails In its Answer and Amended Answer, Respondent asserted as an affirmative defense that it in some manner relied on statements by FAA Inspectors. As discussed in the FAA's Closing Argument, this affirmative defense was legally flawed and based on fabrications by Schneider

field, andthat the fire destroyedthe aircraft. Respondent appears to be asserting only thatthe aircraftwas not lost "dnring" the flight because the in-flight fire didnotcompleteits destruction ofthe aircraftuntil afterthe forced landing. This dispute is purely semantic, and irrelevantto any matter at issue in this case. 13and Fowler. See Closing Argument at 36-38. Regardless, Respondent does not argue in support ofthis affirmative defense in its closing argument, and has now abandoned it. See generally Response Closing Argument. VIII. Respondentis Responsible for the Maintenance Violations As discussed in the FAA's Closing Argument, Respondent's first affirmative defense presented two legally distinct issues

- whether it was legally responsible for the violations it directly committed as owner and operator ofthe aircraft, and whether it was legally responsible for the maintenance violations committedby its Director ofMaintenance, Schneider. See Closing Argument at 38-41. Respondent argues extensively that itis notresponsible for the maintenance, violations, see Response Closing Argument at 38-47, andthat argumentis addressedhere. In arguing that Schneider and Underwood were not its agents, Respondent focuses on whether ithad control over the means bywhich the February 2011 alteration was performed. See Closing Argument at 39-43. In particular, Respondent argues that it had nothing to do with the decision to address the fuel tank situation by fabricating new fuel tanks out of the existing aluminum shells (rather than installing newbladder fuel tanks orhavingpurpose-built aluminum tanks fabricated by someone outside Respondent). !d.at 41-43. With regards to the alteration, Respondent's defense, as now argued, raises two particular questions6

- whether Respondent is responsible for the actions of Underwood, and if not, whether Fowler (Respondent's Executive Director) had the authority to approve the manner in which the February 2011 alterationwas perforrned7

6Respondent also presents arguments abouthow it is not subjectto the same strict liability standardsthat an air carrier is. See Respondent's Closing Argumentat44-47. However, the FAAhas never argued thatthose standards apply. However,the factthat an operator otherthan an air carrier is not strictly liable for every single maintenance action does notmean that such an operator is never liable for any maintenance action. 7 There is no dispute thatRespondent is responsible for the actions anddecisions ofFowler, andthere does not appeartobe any dispute thatthe evidence indicates that Schneiderdidnotactuallymake any decisions, butrather simply acted onthe instructions ofothers. 14First, Respondent is responsible for the actions of Cullen Underwood. Although Respondent seeks to present Underwood (along with Schneider) as an entirely independent operator over which it had no control, and although Respondent had Schneider and Underwood and (through his deposition) Fowler available to testify onthis point, Respondent did not present any evidence to support this contention, beyond the bare fact that Underwood is not its employee. Rather, the evidence available indicates that Underwood (and Schneider) was not an independent operator. For example, in his testimony, Underwood indicated that he had been involved with Respondent since 2006, and referred to himself, Schneider, and Fowler as "the three principals" in the organization. T3 at 241. Schneider received authorization for the alteration from Fowler through Underwood. C26 at 18. Underwood also repeatedly conflated himselfwith Respondent, referring to how "we" spoke with Rocky Howard and Terry Bowden,

see T3 at 241, and referred to how certain documents "came from" Respondent and how "we" had a complete set ofdrawings, whenthose documents were on his hard drive. 

### Id. at 246; T4 at 16. Further, Underwood served as Respondent's representative at hearing, where he continued his role as Respondent's agent. Second, the evidence makes it explicitly clear that Fowler was fully informed and approved of the manner in which the alteration was performed. Contrary to Respondent's representations, this was not a situation where Fowler simply directed that the fuel tank situation be addressed, and then got a finished product back four months later. Rather, Fowler was involved in every step ofthe process. At his deposition, Schneider testified that the decision to replace the bladder fuel tanks by welding up the existing shells had been made by Underwood and Fowler. Exhibit C-26 at 18. Fowler himselftalked about being constantly involved in the process, including alleged consultation with FAA personnel and personally observing the

15alteration in progress. Exhibit C-27 at 12, 14-16, 19-20. Fowler was even involved in the discussions abouthowto writethe maintenance log entry. See Exhibit C-26 at 31. In his deposition, Fowler attempts to deflect responsibility for his actions, by attempting to place responsibility on Schneider or other unspecified persons, but the evidence from Schneider's deposition, testimony at hearing, from Fowler's own declaration, and from other documentary evidence made it clear that Schneiderhad no decision-making role inthis process.8 See, e.g., C27 at 12 (asserting that "Schneider andthe group" had advised him onthe best way to replace the existing bladder tanks); C27 at 14 (asserting that unspecified "outside" persons had made the decision and that Schneider had "briefed" him on the decision). Not only are these evasive descriptions of the process contradicted by other evidence such as Schneider's testimony, they ultimately do not relieve Respondent of responsibility for the improper maintenance. Even ifFowler was relying on the "expertise" ofUnderwood as to the best way to replace the fuel tanks, these actions only proceeded after consultation with Fowler and with Fowler's approval. Fowler had to authorize the original plan ofhiring a DAR to engineer and construct new metallic tanks from scratch, including authoring a check to a DAR. C27 at 17. Former Director ofMaintenance Bourgoine explicitly discussed how Fowler or fellow employee Scott Maher had to give authorization for any potentially expensive maintenance action, which this certainly was.9 C35**~** 6. In his declaration, Fowler asserted that "Schneider has never had authority to make decisions onwhatmaintenanceto perform." R2 at 1.

8 Additionally, as discussed in the FAA's Closing Argument, Fowlerpresented false testimony athis deposition on several other subjects, such as whetherhe and Schneiderhad consultedwithFAApersonnelprior to returning the aircraftto service, andwhetherRespondenthad savedtens ofthousands ofdollars by performing the homebrew alteration instead ofaproper replacement or engineering. 9 Respondent points to Bourgoine's testimony thatmechanics were not directed how to tum wrenches on routine inspections. See Response Closing Argmnent at42-43. And, presmnably, Fowler was not standing overthewelders instructing them on preciselyhowto fabricate the fuel tanks from the almninum shells. Buthere the issue presented is notwhether an individual mechanic turned aparticularwrench in an impropermanner, but aprocess that was improper from startto finish. And Respondentdid directits mechanics onhowto performthe task ofreplacing the 16As Fowler himself said, "I was involved with pretty much every decision they made." C27 at 19-20. Respondent was directly involvedinthe decisionto alter the aircraft by improperly replacing the bladder fuel tanks by welding the existing shells into new fuel tanks. Respondent, through its Executive Director, did not simply direct that some sort ofreplacement be affected and then give independent mechanics free rein. Rather, it was directly involved in every step of the decision-making process, including authorization of the particular method by which the bladdertanks were to bereplaced. With regards to the June 2011 repair, Fowler's personal involvement was limitedtobeing informed ofthe process, rather than the same level ofdetailed decision-making involvement he had in the February 2011 alteration. However, the evidence at hearing did show thatUnderwood
was involved inthe decision-making process and, as discussed above, Underwood was acting as Respondent's agent. IX. Respondent CannotEscape Responsibility for Its OperationalViolations Although Respondent does not present an independent argument concerning whether itis responsible for its violations as owner and operator ofthe aircraft, it does make references to this inits discussion ofthe appropriate penalty to be imposed. See Response Closing Argument at47- 49. In that section, Respondent argues that it had "no perceivable reason to look beyond" the maintenance entries made by its "independent" maintenance personnel, and so should be absolved ofanyresponsibility for its operational violations. 

### Id at48-49. Respondent's argument onthis pointis entirely devoid ofany detail, presumably because the details ofthe evidence in the case entirely contradicts Respondent's affirmative defense. As discussed at great length inthe FAA's Closing Argument, Respondent- including its Executive

bladder fuel tanks by authorizingthem toreplacethe bladderfuel tanks by weldingnew tanks from the existing shells. ratherthan bypurchasingnewbladdertanks orhaving an engineer designnew aluminumtanks. 17Director, Raymond Fowler

- was fully aware at all times of everything that Schneider and Underwood were doing. Fowlerpersonally observedthe February 2011 alteration and the return to service, and would have known that the return to service falsely described the work performed. Further, Respondent did not rely on a mechanic at all, butrather relied on the work and opinions of the uncertificated Cullen Underwood. Exhibit C-26 at 29-30 (Schneider discussing how he relied on Underwood as to the appropriateness ofthe welding alteration). It
was not Schneider's decision to modifY existing components, rather thanusing appropriate (and
more expensive) methods. Indeed, the evidence at hearing was that Schneider contributed virtually nothing to the process besides assisting in the original removal ofthe bladdertanks and the application ofhis signature to the final maintenance log entry. Respondent did not rely on Schneider at all, much less do so reasonably. Respondent knew or should have known ofthe inappropriate nature ofthe alterations, and cannot escape responsibility for its failure to ensure that accurate records were kept for its aircraft and for the subsequent improper operation ofthe aircraft. X. The SanctionImposed Is Appropriate Inits closing argument, the FAA provided a detailed discussion ofthe appropriate nature of the sanctions sought in this case. Respondent does not address any of these issues, 10 but instead simply asks the Judge to impose a de minimus penalty. See Response Closing Argument at 47-49. The penalty imposed by the FAA is reasonable under the circumstances, and indeed is rather lenient in light of how Respondent's actions put injeopardy the lives of hundreds of veterans and other individuals who flew as passengers on N390TH after its improper replacement ofthe fuel tanks.

10Respondentalso does not dispute the FAA's allegations as tothemultitude ofoccasions on which it operatedthe aircraft after the February 2011 alteration. 18CONCLUSION The evidence at hearing demonstrated that (1) Respondent had improperly performed a major alteration oncivil aircraftN390TH in February 2011 byfabricating 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 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 eachviolation alleged in the Amended Complaint. Respondent, onthe other hand, presented no evidence at all onmany ofthe issues in this case. In its response closing argument, where it does not simply ignore the issues at hand, Respondent seeks to circumvent this lack of evidence on its side by primarily relying on the personal opinions of opposing counsel as to maintenance standards, the accuracy of expert testimony, the meaning ofmaintenance documents and FAA orders, andthe appropriate sanction in this matter. Judgment should be granted to the FAA on all allegations and for the full civil penaltyproposed.
WHEREFORE, Complainantrespectfully requests thatthe Judge grantjudgmentto the FAA, and affirm the Amended Complaintin its entirety, including the sanction imposed therein. 

## ').-A Respectfully submittedthis
__day ofSeptember, 2014.

CHRISTOPHERR. STEVENSON Attorney Office ofthe Regional Counsel

19CERTIFICATE OF SERVICE Ihereby certifythatthe foregoing FAA'sRebuttal ClosingArgument was sent: Original and one copy viacertifiedmailto: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: HearingDocket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 One copy viacertifiedmail to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536 StuartA. Goldstein, P.A. 7300 North Kendall Drive, Suite 380 Miami, FL 33156 Facsimile: (305) 400-0685 

# Ummm

**~~A** DONNASTANLEY ) Legal Assistant Office ofthe Regional Counsel


### StP 2 

### 2014 Dated

20