u.s. DEPARTMENT OF TRANSPORTATION R E·C E IV ED . OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

SEP - 8 2014 

HEARING DOCKET 

vs. 

Docket No. F AA-2012-0477 

FAA Case No. 2011GL030070 

LIBERTY FOUNDATION, 

Respondent. Judge Sullivan 

FAA'S REBUTTAL CLOSING ARGUMENT 

At hearing in this matter, the FAA presented multiple expert witnesses, who testified 

about the numerous deficiencies in Respondent's alteration of N390TH. Respondent, however, 

presented almost no evidence concerning whether its alteration and a later repair were 

appropriate or whether its actions constituted violations of the 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 should be found in favor of the FAA in all regards. 

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

Performed · · · 

Respondent discusses the question of whether§ 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 

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Dave 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 with Alderman prior to executing the inaccurate maintenance entry, this would somehow 

mean that§ 43.9(a) had not been violated. 

With regards to § 91.407(a), Respondent argues that it did not violate this section because 

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 that the entry include a description 

of the work performed and, as discussed in the 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 of events that was not the work performed on the 

aircraft. Further, Respondent's Executive Director, Fowler, was aware of exactly what had been 

done with the aircraft and exactly what the text of the maintenance log entry was, and both knew 

and should have known that the entry was 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 of the work actually performed 

on the aircraft, and§ 91.407(a)(2) was repeatedly violated when Respondent operated the aircraft 

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without the appropriate § 43.9 maintenance record entry, despite its knowledge of the entry's 

inaccuracy. 

II. The Alteration Was A Major Alteration 

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 alteration because there were many fuel system components that were 

not changed and that it "only" performed a total replacement of the fuel tanks, but presents no 

evidence as to why "only" changing the fuel tanks would not be 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 of a 

permanent fuel tank is a major alteration. Respondent, by contrast, presented no evidence on this 

subject. 

Respondent further argues that the alteration was not a major alteration because it did not 

change the purpose of the 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 of the fuel system would not be 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 of its 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 

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Respondent not based on the evidence at hearing - no testimony or document indicated that an 

alteration is major alteration only if it changes the entire purpose of the system being altered -

but rather based only on the personal opinions of opposing counsel. 

Respondent complains at length that the expert opinions of the FAA's witnesses are 

"conjecture" because they were not personally present when the maintenance was performed, but 

seems oblivious to the fact that is standard practice for an expert to testify about the significance 

of a sequence of events where the expert did not personally 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 of the work in progress, and review of the descriptions of the work performed given 

by those who performed it. For example, all of the 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 of the aircraft, see, e.g., Respondent's Closing Argument 

at 27, 30. But Respondent's own witnesses at hearing ultimately agreed that the fuel capacity had 

increased, contradicting their own prior declarations that the fuel capacity had not changed. 

Respondent, in attacking the FAA's witnesses for not being able to identify precisely the 

changes in fuel capacity or the stresses placed upon the wing structures also appears to forget the 

standard for whether an alteration is a major alteration, and the FAA's burden of proof in 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 of the aircraft. 14 C.P.R.§ 1.1. 

1 For example, if an FAA inspector personally observed improper maintenance in progress, tbe inspector would 

typically take action to prevent the aircraft from being returned to service in an unairwortby condition, tbus 

obviating tbe need for any subsequent legal action. 

4 
Because the alteration here could have a noticeable effect on those characteristics, the F ARs 

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 of these 

effects and the extent of the safety hazard they might present. It is 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 of this 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 aircraft to service, 2 much less operating it. 

During this litigation, the FAA has asserted that one of the problems with the alteration 

performed by Respondent 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 only has unrebutted evidence been presented on this 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 

subjected to 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 might be possible before the alteration is performed, but there is typically no regulatory violation 

if maintenance or an alteration is performed and the aircraft is never returned to service. 

5 
evidence or law to contradict the facts presented and regulations cited by the FAA, Respondent 

merely relies on the personal opinion of opposing counsel. 

The one piece of aviation-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 noted there, Norville was never qualified to offer, and did not offer, any opinion on 

whether the February 20 11 alteration was a major alteration, and his 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 changed the weight and balance of the aircraft was a major alteration, except when 

it wasn't. 

On the question of whether the alteration could be performed usmg elementary 

operations, Respondent relies entirely on the testimony of David 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 of welding is "simple" or "non-complex" in the technical parlance of 

welders (which seemed to relate exclusively to the physical position of the welder with relation 

to the object to be welded, such as whether the welder would have 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 on the aircraft could 

not be performed using elementary operations. 

Respondent does not address whether it performed the alteration in accordance with 

accepted practices. See generally Respondent's Closing Argument. 

6 
The evidence at hearing demonstrated that the 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 Alteration Was Not Properly 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 of these established sources) other a 

methods, techniques, and practices acceptable to the Admiuistrator. At hearing, the FAA 

presented multiple experts, who were representatives of the 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 alterations 3 See Exhibit R-21. 

Respondent did not present a single sentence of testimony 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 of a particular major repair. Exhibit R-21 at 1 (Purpose). As discussed 

extensively elsewhere, the replacement of the bladder fuel tanks with aluminum fuel tanks was a 

major alteration, not a minor alteration. But even if it had been a major repair, AC 43.13-lB 

3 Advisory Circular 43.13-2B covers "Acceptable Methods, Techniques, and Practices- Aircraft Alterations," and 

makes no mention of welding. Under the regulations, inspections and repairs are both subtypes of"maintenance," 

while alterations are not 

7 
would not, standing alone, suffice as an "approval" by the Administrator of any of the methods, 

techniques, or practices described in the AC. 

Additionally, even if AC 43-13-lB applied to alterations, or was an approval for major 

repairs or alterations, even the particular minor repair method approved of in the AC would not 

encompass the alteration performed here. The AC provides that "welded or riveted fuel tanlcs 

that are made of commercially pure aluminum, 3003, 5052, or similar alloys, may be repaired by 

welding." Exhibit R-21 at 8-19, 'If 8-32. First, the "fuel tank" that existed prior to the welding was 

not a "welded or riveted" fuel tank. Second, the two kinds of aluminum 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 simply has no applicability to the work performed. 

At hearing, the FAA presented expert testimony 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 of welded 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 of documents, in favor of the personal opinion of opposing 

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, in violation of§ 43.13(a). 

With regards to § 43.13(b), Respondent likewise presented no evidence. In its Closing 

Argument, Respondent asserts that Schneider and Norville opined that the alteration restored the 

aircraft to at least its originally or properly altered condition, see Closing Argument at 34, but 

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Respondent provides no citation for this statement and Norville and Schneider were not 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 Aircraft Was Not In An Airworthy Condition After the February 2011 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 of these reasons, but does present arguments on the other two. 

As both parties have discussed, an aircraft airworthy only when it is (1) in conformance 

with its type certificate and type design; and (2) is in a condition for safe operation. As the FAA 

discussed in its closing argument, an aircraft can be out of conformance with its type certificate 

and type design for numerous reasons, such as missing an inspection, improper performance of 

maintenance, or a major repair/alteration being performed by an unapproved individual 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 aircraft to service after a major alteration, and no 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 of these reasons independently rendered the 

aircraft unairworthy, but Respondent simply ignores them. 

Respondent instead focuses only on the two-page type certificate and whether the aircraft 

was safe for flight. See Response Closing Argument at 34-38. 

4 Schneider did assert that the methods and techniques used in the alteration were consistent with those that he had 

seen used in his aviation career, but was unable to identify particular occasion of such an alteration, and this 

testimony was regardless contradicted by Schneider's admissions in the certificate action case against him. 

9 
With regards to the type certificate itself, the FAA argued, based on the testimony of 

multiple expert witnesses, that N3 90TH was not in conformance with the type certificate after 

the alteration because the type certificate provides 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 [now the Federal Aviation Administration] representative to show 

that the modified airplane maintains the same degree of airworthiness as the original." Exhibit C2 at I. Respondent seeks to attack this expert testimony and argument by pointing to the 

proceeding sentence of the 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 of Note 3 spealcs specifically to structural repairs, the entirety of Note 

3 is "completely inapplicable" to the alteration at issue in this case. See Response Closing 

Argument at 36. However, the explicit language of the second sentence of Note 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 of Note 3 itself, as well as the 

expert testimony presented at hearing. 

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 of Structural 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 

10 
Respondent, and the cover page of that handbook explicitly notes that it was "FORMERLY T.O. 

No. 01-20E-3"). Exhibit R-15 at 1 (capitalization in 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 of Note 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 of T.O. No. Ol-20E-3, Respondent's argument on this point is quite odd in light of 

the undisputed testimony and agreement of witnesses on both sides that this alteration was not 

contained in any manual for the aircraft. Again, all of the evidence at hearing 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 3 6-3 7. In its argument on this point, Respondent 

misstates the evidence and the FAA's argument. Contrary to what Respondent suggests, the FAA 

does not argue that any subsequent failure of a component means that the original work made the 

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 of the new fuel tanks after less than four 

months does mean that the original alteration was flawed and rendered the aircraft unsafe for 

flight. 

11 
V. The June 2011 Repair Was Improperly Performed, The June 2011 Repair Was A 

Major Repair, and the June 2011 Repair Rendered the Aircraft Unairworthy 

Respondent renews in its closing argument its objection that the FAA never put it on 

notice that the FAA was alleging that one of the 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 of litigation 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 of its Motion for Summary Judgment, filed a 

year before the hearing, to arguing that the repair was a major 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 of the nature of the allegations against it, and the details of 

those allegations were provided during the course of litigation. 

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 must have been proper. 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 that the FAA made a "false and misleading" statement in its closing argument by stating 

that the aircraft was lost "during the flight" of June 13, 2011. Respondent's Closing Argument at 10 n.7. It is 

undisputed that the aircraft caught frre during the flight of June 13,2011, that the aircraft made a forced landing in a 

12 
whether the repair was a major repair also ignores the expert testimony in favor of focusing 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 of the FAA's allegations in this 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, it remains for the Judge to determine whether to credit Schneider's admission 

at his deposition that he made no maintenance log entry prior to the aircraft operating on June 13, 

2011, or whether to credit his later "recollection" at hearing that he actually had 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, and that the fire destroyed the aircraft. Respondent appears to be asserting only that the aircraft was not lost 

"dnring" the flight because the in-flight fire did not complete its destruction of the aircraft until after the forced 

landing. This dispute is purely semantic, and irrelevant to any matter at issue in this case. 

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and Fowler. See Closing Argument at 36-38. Regardless, Respondent does not argue in support 

of this affirmative defense in its closing argument, and has now abandoned it. See generally 

Response Closing Argument. 

VIII. Respondent is 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 of the aircraft, and whether it was legally responsible 

for the maintenance violations committed by its Director of Maintenance, Schneider. See Closing 

Argument at 38-41. Respondent argues extensively that it is not responsible for the maintenance, 

violations, see Response Closing Argument at 3 8-4 7, and that argument is addressed here. 

In arguing that Schneider and Underwood were not its agents, Respondent focuses on 

whether it had control over the means by which 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 new bladder fuel tanks or having purpose-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 alteration was perforrned7 

6 Respondent also presents arguments about how it is not subject to the same strict liability standards that an air 

carrier is. See Respondent's Closing Argument at 44-47. However, the FAA has never argued that those standards 

apply. However, the fact that an operator other than an air carrier is not strictly liable for every single maintenance 

action does not mean that such an operator is never liable for any maintenance action. 7 There is no dispute that Respondent is responsible for the actions and decisions of Fowler, and there does not 

appear to be any dispute that the evidence indicates that Schneider did not actually make any decisions, but rather 

simply acted on the instructions of others. 

14 
First, 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 on this 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 

himself with 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 of drawings, when those 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 of the 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 himself talked about being constantly involved in the 

process, including alleged consultation with FAA personnel and personally observing the 

15 
alteration in progress. Exhibit C-27 at 12, 14-16, 19-20. Fowler was even involved in the 

discussions about how to write the 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 Schneider had no decision-making role in this process. 8 

See, e.g., C27 at 12 (asserting that "Schneider and the group" had advised him on the 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 if Fowler was relying on the "expertise" of Underwood 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 of hiring a DAR to engineer and 

construct new metallic tanks from scratch, including authoring a check to a DAR. C27 at 17. 

Former Director of Maintenance 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 on what maintenance to perform." R2 at 1. 

8 Additionally, as discussed in the FAA's Closing Argument, Fowler presented false testimony at his deposition on 

several other subjects, such as whether he and Schneider had consulted with FAA personnel prior to returning the 

aircraft to service, and whether Respondent had saved tens of thousands of dollars by performing the home brew 

alteration instead of a proper replacement or engineering. 

9 Respondent points to Bourgoine's testimony that mechanics were not directed how to tum wrenches on routine 

inspections. See Response Closing Argmnent at 42-43. And, presmnably, Fowler was not standing over the welders 

instructing them on precisely how to fabricate the fuel tanks from the almninum shells. But here the issue presented 

is not whether an individual mechanic turned a particular wrench in an improper manner, but a process that was 

improper from start to finish. And Respondent did direct its mechanics on how to perform the task of replacing the 

16 
As Fowler himself said, "I was involved with pretty much every decision they made." 

C27 at 19-20. Respondent was directly involved in the decision to 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 of replacement 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 

bladder tanks were to be replaced. 

With regards to the June 2011 repair, Fowler's personal involvement was limited to being 

informed of the process, rather than the same level of detailed decision-making involvement he 

had in the February 2011 alteration. However, the evidence at hearing did show that Underwood 

was involved in the decision-making process and, as discussed above, Underwood was acting as 

Respondent's agent. 

IX. Respondent Cannot Escape Responsibility for Its Operational Violations 

Although Respondent does not present an independent argument concerning whether it is 

responsible for its violations as owner and operator of the aircraft, it does make references to this 

in its discussion of the appropriate penalty to be imposed. See Response Closing Argument at 4 7-

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 of any responsibility for its operational violations. Id at 48-49. 

Respondent's argument on this point is entirely devoid of any detail, presumably because 

the details of the evidence in the case entirely contradicts Respondent's affirmative defense. As 

discussed at great length in the FAA's Closing Argument, Respondent- including its Executive 

bladder fuel tanks by authorizing them to replace the bladder fuel tanks by welding new tanks from the existing 

shells. rather than by purchasing new bladder tanks or having an engineer design new aluminum tanks. 

17 
Director, Raymond Fowler - was fully aware at all times of everything that Schneider and 

Underwood were doing. Fowler personally observed the 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, but rather 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 of the welding alteration). It 

was not Schneider's decision to modifY existing components, rather than using 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 of the bladder tanks and 

the application of his 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 of the 

inappropriate nature of the alterations, and cannot escape responsibility for its failure to ensure 

that accurate records were kept for its aircraft and for the subsequent improper operation of the 

aircraft. 

X. The Sanction Imposed Is Appropriate 

In its closing argument, the FAA provided a detailed discussion of the 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 4 7-49. The penalty imposed by the FAA is reasonable under the circumstances, and indeed is 

rather lenient in light of how Respondent's actions put in jeopardy the lives of hundreds of 

veterans and other individuals who flew as passengers on N390TH after its improper 

replacement of the fuel tanks. 

10 Respondent also does not dispute the FAA's allegations as to the multitude of occasions on which it operated the 

aircraft after the February 2011 alteration. 

18 
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 

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. 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 of maintenance documents and FAA orders, and the appropriate sanction 

in this matter. 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 therein. 

').-A 

Respectfully submitted this __ day of September, 2014. 

CHRISTOPHER R. STEVENSON 

Attorney 

Office of the Regional Counsel 

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CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Rebuttal 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 2Wl 000 

One copy via certified mail to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

Stuart A. Goldstein, P.A. 

7300 North Kendall Drive, Suite 380 

Miami, FL 33156 

Facsimile: (305) 400-0685 

Ummm ~~A DONNASTANLEY ) 

Legal Assistant 

Office of the Regional Counsel 

StP 2 2014 

Dated 

20