04/19/12 THU 14:40 FAX

To: 

### Hearing Docket Clerk, AGC-430 company: 

### Federal Aviation Administration Telephone: Fax: 

### 202.493.5142

From: 

### Gregory S. Lander, Title: Agency Attorney

Date: 

### Apri119, 2012 Pages 

### w/cover: 33 

# .Federal Aviation ·.Administration

Southwest Region Offic.e of Regional Counsel Fort Worth, Texas 76137 Package/CourierAddress 2601 Meacham 

### Boulevard Fort Worth, Texas 76137 T (817.222.5099) F (817.222.5945/5092)

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### Complainant's Rebuttal Brief; Closing and Summation Oklahoma Skydiving Center- OMS No. FAA-2010-1215

Please Note: "This message is intended only for the use ofthe individual or entity to which it is addressed and may contain information that is privileged, confidential, and exempt from disclosure under applicable law" !{/] 00104/19/12 THU 14:40 FAX

Served April 19, 2012 

### U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
IN THE MATTER OF Oklahoma Skydiving Center FAA DOCKET NO. CP10SW0020 (Civil Penalty Action) DMS No. FAA-2010-1215 Complainant's Rebuttal Brief; Closing and Summation COMES NOWthe Federal Aviatlon Administration (Complainant), through its undersigned counsel, hereby submits this Rebuttal Briefon Proposed Findings ofFact and Conclusions ofIssue ofLaw for the hearing held onJanuary 10, 2012, before·Administrative LawJudge Richard C. Goodwin ofthe Department ofTransportation, in Oklahoma City, Oklahoma. His Honorheard the testimony and saw the evidence, and it is clem' that the AGENCYhas proven its
case by a preponderance ofthe reliable, probative, and substantive evidence.

FAA inspectors West and Terry testified that during the July 11tl> ramp inspection, the forward skin ofthe right flap had multiple cracks in it and there were concerns about hidden damage, a potential safety hazard. Likewise, they testified that there was a hole in the forwards side ofthe left flap at the inboard flap tnick. A screw had punctured the flap skin and was lodged inthe hole. The flap skin was torn around the screw head. This condition presented a potential hazard because it was unknown ifther.:: was any structural damage beneath the flap skins, or what li1J 00204/19/12 THU 14:40 FAX
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causedthe cracks. Furthermore, theremay have been damage withinthe flap-track thatcould have resulted in one ofthe flaps improperly extending relative to the flap onthe opposite wing ofthe aircraft resulting in asymmetrical 

### lift -resulting in possible loss ofcontrol. They testified that the aircrafthad a brokencabinwindow, with animproperrepair consisting ofduct tape. They testified that safety couldbe affected because the window could break offand strike the horizontal stabilizer, rudder, or elevator orjamit or do structural damage potentially resulting inthe loss ofaircraft control. Likewise, they testified that the aircraft did not have the proper seat stops installed. This created a potential, ifnot actual safety concern because the pilot seat could slide aft during takeoffresulting in a loss ofcontrol ofthe aircraft and accident. They testified that the issue is such a concern that it was the issue ofa recent safety initiative by the FAA. 1 Whatthere is no evidence of, and we heard no testimony to, was that a certificated mechanic repaired these known discrepancies priorto operation on July II, 2009, according to accepted orapproved FAA data, and thatthe aircraft properlyreturned to service. Despitebeingtold about the discrepancies, shown each ofthem, and thenhanded a ConditionNotice, andtoldthatthe aircraft was unsafe for flight, Mr. Reeves tWice stated to the inspectors that, "Hewas going to fly." (310 Tr. 3-8) Following the FAA Inspector's handing ofthe Condition Notice to 

### Mr. Reeves, Respondent didjust that- operating the aircraft with two passengers on-board. We heard the Inspector'stestimony that they sawthe aircraft taxiing for take-off, heard the pilot call, saw the

1 The Safety Alert for Operators (SAPO), 10016, Missing or Tmproper SeatStops in Cessna Models, issued Aug. 26, 20 I 0, reminds inspccLors, operators, owners and maintenance technicians that type design seat stops are required to be installed on all seatrailsto meet airworthy requirements.

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aircraft takeoff, sawthejumpers depart the aircraft, and sawthe aircraft doing steep turns in a descent and land. It is essentially "Hombook'' law that in order to be deemed "airworthy," an aircraft must meet a two-pronged test. First, itmust conform to its type design, and, second, itmust be in condition for safe operation. Itmust conform to its type design and must be in a condition for safe flight. This has been for many years the well-established criterion for airworthiness. 

### See Delaware SkywaysLLC, FAA OrderNo. 2005-6 at 2 (March 8, 2005): 

### California Helitech, FAA Order No, 2000-18 at2n. 7 (August II, 2000); 

### America WestAirlines, FAA OrderNo. 96-3, 1996 FAA Lexis 1064 (February 13, 1996); and 

### Emery Worldwide Airlines, Inc., FAA OrderNo. 97-30 (October 8, 1997), p. 17, 1997l<'AA Lexis 1279. 'These unresolved maintenance discrepancies renderedN4682F un-airworthy onJuly 11, :2009. As the court noted in 

### The Matter of General Aviation, FAA Order No. 1998-18 (October 9, 1998), "When an aircraft has unresolved discrepancies, it is not airworthy." Responsibility for the resultant violations thus falls squarely on Mr. Reeves and, through him, onhis company, the Respondent. Oklahoma Skydiving Center knowingly operated this aircraft with open discrepancies on July 11 and 12, 2009, while carrying passengers. Itdid not record and correct these discrepancies prior to the next required inspection. By knowingly operatingthe aircraft in a knownunairworthy condition, it did so in a careless orreckless manner. In so doing, it operated in violation of§§ 9!.7(a), 91.40S(a), and 91.13(a) ofthe FARs as alleged. 

### Inhis response, Respondent argues that NTSB case Jaw is determinative in.this matter, ignoring the Agency's standard set forth in its initial brief, beginning with sections III A and B, pages 4 through 7, as well as generically arguing that none ofthe items listed on the Condition

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Notice (Ex. A-8) rendered the aircraft unairworthy according to those NTSB decisions. Beginning with section II B on page 3 ofhis Reply Brief, Respondent cites NTSB case precedent as controlling regarding whether or not an aircraft is "airworthy."2 The Thibert case is cited by Respondent as mandating that the Administratorprovide aircraft type certiticates, type certiJicate data sheets, etc., to prevail at trial. As his Honor is aware, NTSB decisions are not determinative inthese actions and the Administrator is not bound to followthe1n. RonaldC. Terry andChristopherJ. Menne, OrderNo. 91-12 (April 12, 1991),p. 3. n. 6; pet. for reconsideration denied, FAA OrderNo. 91-31 (August 2, 1991); pet. denied, 976 F.2d 1445 (D.C. Cir. !992).3 Respondentignores; however, the Administrator's decisionina case directly on-point. InAmerica 

### West, FAA Order No. 96-3, the Administrator found an aircraft unairworthy where speed tape (as opposed to an approved sealant or a "tlush plug patch") was used to make repairs, not in accordance with the Structural Repair Manual (SRM). The Administrator found that even where the Complainant did not introduce as evidence the actual type certi'ficate, 

### itwas clear that speed tape
was not in conformance with the aircraft's type certificate as it was not a part ofthe original,**ap~** proved condition ofthe aircraft or an approved repair. Id. The Administrator stated: "Although Complainant did not introduce the type designs, there was ample evidence, nonetheless, thatthe aircraft, with this damage and these temporary 'repairs' were no longer in conformance with their type designs. Inspectors Sebring and Kensche testified that the aircraft were no longer in their original or properly altered conditions, (citation omitted).
. .. Also, Mr. Bororwski testified, in effect, that the speed tape was not included in the type designs ofthe aircraft. (citation omitted)
.... [T]he aircraft, with the delamination or hole and with speed tape repairs, no longer conformed to their original type designs." 

### I d. at 13.

2Administrator v. Thibert, NTSB OrderNo. EA-5306 (2007); mistakenly cited throughout tho briefas BA-5305. 3 See also, In the Matter of Richardson andShimp, CP91S00260 & CP9!S00261, 1992 WL 753157 (July 22, 1992), also In the Matter of Gatewood, CP97EA0071, 2001 WL 629390 (May 16, 2001).

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In

### America West, the ALJ had found thatwhile a minor, temporary repair using speed tape may nothave had extreme safety implications, it still makes the aircraft unai1worthy if, as a result ofthe repair, the aircraft no longer conforms to its type design. 

### !d. at 8. The Administrator affirmed the AU's fmding ofoperation ofan unairworthy aircraft because the aircraft, with speed tape temporarily covering certain discrepancies, did not meet the two-prong airworthiness test of conforming to a type certificate and being in a condition safe for flight. 

### !d. at 13. This case is directly on-point and constitutes binding legal precedent. Respondent further ignores precedent cited by his Honor at trial. (146 Tr. 10-- 147 Tr. 6; and 316 Tr. 15

-- 317 Tr. 11). That case, 

### In the Matter ofUnitedParcel Servke, CP08S00007, 2008 WL 4911181, 

### appeal dismissed, 2008 WL 5560854 (December 29, 2008), concerned three small, barely discernible dents onthe lower surface ofthe inboard flap onthe right-hand wing of
an AirbusA-3004 operatedbythe UnitedParcel Service. As JudgeBenkin opined, "Theviolations ofthe FARthat UPS has committed are regrettable and certainly deserve some sanction; butthey carJ hardly be considered "grave" innature, nor did they pose a significant threat to aviation safety." 

### !d. at 8. Nevertheless, he continued, "What is most troublesome about UPS' conduct, as demonstratedbythe facts ofthis case, is simplyits rather cavalier attitudetoward damage to one of its aircraft, damage that it recognized required permanent repair under the FAR." !d. at 9. Judge Benkin's sunnnation ofthe UPS case is applicable here. Oklahoma Skydiving was
aware ofthe damage to the aircraft, they knew the discrepancies needed to be repaired, had a

4 The Airbus A-300 is a much larger aircraflthan Respondent's 206 Cessna. The maximum takeoffweight ofthe A-300 is between 360,000-376,000 pounds. The maximum takeoffweight ofa Cessna 206 is approximately 3,600 pounds.

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Condition Notice in hand, and yet intentionally operated the aircraft. Here, as inthe UPS case, itis apparent that "unwarranted hubris was at stake." I d. Nevertheless, despite the fact thatthe three dents were barely discernible and there was no adverse effect on aviation safety shown; Judge Benkinheld that dents rendered the aircraft unairworthy, and UPS's operation ofthat aircraft violated the FARas charged in the complaint. The precedent for this is well-established. "While a minorrepairmayhavenosafety implications, the aircraft is unairworthy if, as aresultofthe repair, the aircraft no longer confmms to its type design." In the Matter ofUSAir, FAA Order No. 96-25 (August 12, 1996) (emphasis added). Agency case precedent is clear onthe matter ofdetermining airworthiness; however; Respondent ignores determinative case law infavor ofa few NTSB opinions which hepurports are determinative 

### inthis matter. Respondent's reliance on his choice ofopinions is unfort\Ulate1y misplaced in that none ofthe NTSB decisions cited are on-point, nor applicable, Thibert is easily distinguishable from the case at bar. Thibert/ a pilot certificate case, does not stand for the proposition offered by Respondent; but rather, it stands for the propositionthat, 

### "In determining whether an aircraftis airworthy
...theBoardconsiders whetherthe operator knew or shouldhave known of any deviation in the aircraft's cof!formance with its type certificate. Administrator v. Krivitsky, NTSB Order No. EA-5444 (2009), emphasis added. 

### In Thibert, the Administrator alleged thatthe pilot operated an aircraft that was unairworthy; however, in that case, the pilot was not aware ofthe discrepancies. Put plainly, Thibrm requires the Administrator, in certificate action cases, to determine, "What did the pilotknow, and

s See also, Administrator v_ Frost, NTSB OrderNo. EA-4680 (!998), cited by Respondent for the same premise as Thibert.

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when did heknowit." The Agency, evenifrequiredto comport withthis requirement, cleared this hurdle ab inlitio, as Mr. Reeves admits that the discrepancies hadbeen brought to his attention at the July 11 inspection, (287 Tr. 3-20) (Ex. A-1), and that he had personally received a Condition Notice listing the discrepancies. (297 Tr. 9-15) (Ex. A-3, 8 & 9) He also testified that Oklahoma Skydiving tookno action inresponse to

### the cracked flap, punctured flap, or brokenwindowbefore operating that day. (298 Tr. 7-12). Clearly, this case is easily distinguishable from Thibert. Likewise, Respondent also would have his Honor defer to the holding inAdministrator v. Opat, NTSB OrderNo. EA-5290 (2007). Opat is likewise a pilot certificate action involving the operation ofan aircraft. This case is also easily distinguishable from the casebefore this court. In Opal, the FAA "STIPULATED that Respondent's operation ofthe aircraft was SAFE." 

### !d. at 3 (emphasis added). We have no such stipulation in this case. In fact, we have repeated testimony and exhibit evidence regarding theunsafe conditions, in addition to the express warning onthe face ofthe ConditionNotice itself. (Ex. A-8) Anyreliance upon Opatby Respondent is clearly misplaced. Calavaero6 is Respondent's fmal NTSB decision citedto support his propositionthat its aircraft was not unairworthy. This oft-cited case is universally quoted as follows: We agree with the Administrator's position that an aircraft, in addition tobeing in a safe condition to operate, must 'be 

### in conformity with its type certificate in orderto be considered airworthy. However, we do not agree that every scratch, dent, "pinhole" of corrosion, missing screw, or other defect, no matter how minor or where located on the aircraft, dictates the conclusion that 

### the aircrafts design, construction, orperformancehas beenimpaired by the defect to the degree thatthe aircraft no longer conforms to its type certificate. Jdat 1101.

6Administrator v. Calavaero, NTSB OrderNo. EA-2321 (1986).
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There is no need to debate whether ornot this case is contra to the Agency's position as established in 

### GeneralAviation, FAA OrderNo. 1998-18, 

### Emery, FAA OrderNo. 97-30, or 

### UPS, cited above. This very issue, in fact, very question, was asked directly to the Inspector Boler at trial. Beginning onpage 61 ofthe Trial transcript, line 9: Q. What does it take for an airplane to actually be airworthy? Do you know? A. The aircraft must conformto itstype design or

### its properly alteredcondition and it must also be safe for flight. Q Okay. Does that meanthat every little scratch, nick and dent has to- you know, renders an airplane unairworthy? A. No. Q. Was that the case in here? A. No. Inspector Bolerwas unequivocal about this issue, both ondirect as well as cross and
re-cross examination. As an A&P and IAholder, as well as an FAA Inspector, she stated that the repairto the window was not accomplished using methods acceptable to the Administrator. Inspector Bolertestified thatneither broken windows nor duct tape is inc!uded inthe type designs of the aircraft. Shetestified thatthe aircraft was unairworthy with thebroken window and the duct tape applied. She testified that the aircraft was not built with cracked orpunctured flap skins, and that they are notincluded inthe type designs ofthis aircraft, andthe properrepairsto eliminatethe cracks and puncture were not made. Inspector West testified that the aircraft wasunairworthy because it was not in its original orproperly altered condition, and itwas not consistent with its

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type design. See USAir, 96-25. Inspector Boler testified that she would not .have returned this aircraft to service unless and until the discrepancies were repaired. The issues with Respondent's aircraft did not involve mere scratches, dents, or "pinholes" ofcorrosion, etc. The cases uponwhich Respondent relies involve discrepancies "unknown" to

· thepilot, "wornmarkings," "fadedpaint," ora missingplacard. In none ofthe casesrelied uponby

Respondent are there discrepancies that approach the magnitude ofseverity as we have here. Furthermore, in none ofRespondent's NTSB opinions do we have the FAA inspecting theRespondent's aircraft, pointing out the problems before operation, and handing them a Condition Notice stating that "The items listed below are considered to be an imminent hazard to safety, and that operation ofthe aircraft prior to correction will be contrary to pertinent Federal Aviation Regulations, and then, the pilot operating the aircraft." In fact, the discrepancies at iSSlle inCalavaero were found by the FAA a month ormore AFTER the aircrafthad been operated; clearly

. distinguishable from the case here before the court. Itmust also be pointed out that the NTSB has not blithely followed the cases upon which Respondent relies. Subsequently decided cases by the Board comport fully with the allegations contained inthis case, and would, ifdeterminative, lead this courtto issue a decision sustainingthe Agency's findings and sanction. InAdministrator v. Scuderi, NTSB OrderNo. EA-5321, 2007 WL 2846495 (2007), the Board upheld the finding ofthe Administrator as to the unairworthiness ofan aircraft. In that case, Mr. Scuderi operated his aircraft too close to another aircraft and bumpedthe wing, which caused the glare shield on his Cessna to bend. Rather than have it repaired, Scuderi continued to operate his aircraft. Scuderi even attempted to bend the glare shield back into place before taking offagain. The Board stated, "In detem1ining whether an aircraft is

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airworthy in accordance with the aforementioned standard, the Board considers whether the operatorknew or should have knowu ofany deviation in the aircraft's conformance with its type certificate." I d. at 3. Turningto the issue ofthe Administrator notintroducing TYPe Certitlcate or data at trial to prove non-conformance therewith, the 

### Board stated: In applying the Doppes two-prong standard, 

### we conclude that, while the Administrator has not presented evidence to prove that respondent's aircraft did not conform to its type certificate, the Administrator has nevertheless showu that the aircraft was not in a condition for safe operation when respondent operated the aircraft. 

### Mr. Shapiro's testimony indicated that the aircraft was not in a condition for safe operation. Tr. at 104-105. In 

### addition, the Administrator has established that respondent knew 

### of the aircraft's condition of questionable airworthiness. Respondent does not dispute that he was aware ofthe bent glare shield, and acknowledges that he bent it back before departing. Tr. at 205, 210-11. Respondent also asked Mr. Vajsabel to inspect the aircraft as soon aspossible afterthe collision. 

## Tr. at 216. Respondent's awareness ofthe potentially unsafe condition leads us to conclude that his operation ofthe aircraft resulted in a violation of § 91.7(a). (The Board also found a violation of91.13(a). 

### I d. at4 (emphasis added).
In fact, the Board, inFN 15, specifically distinguished 

### Thibert stating that, "in 

### Thibert the Administrator did not provethat Respondent knew or should haveknown ofan alleged discrepancy." 

### I d. The Respondent's claimthat failure to introduce the aircraft's type certificate datainto evidence is fatal to the Agency orAdministrator's case is clearly not correct nor precedent. Likewise,Administrator v. Hackshaw, NTSB Order No. EA-5501, 2010 WL 304477 (2010), involved an aircraft that attemptedto land gear up, resulting inprop strikes and damage to thepropellerblades. The pilot, nevertheless, continued to operate the aircraft on additional flights. Attrial, the Judge stated, "itwas not relevantthat Inspector Frank did not himselflook at the aircraft's type certificate until the hearing." 

### Id. at 20. Thejudge also stated that, "There can be no genuine disputethatthe aircraft did notleavethe factory withhomemade locks onthe landing gear

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to keep the gear inthe down and locked position and with a damaged propeller." 

### Id. The Judge continued: Finally, the Respondent was well aware that the propeller had struck the ground and had ad hoc, unauthorized braces installed to keep the landing gear from retracting and was further fully aware that effective andreasonable steps hadnot been taken to ascertain whether the engine and damaged propeller were in a safe condition to operate and still met the type certit1catc. Under these conditions, the Respondent 

### knew or at least should have known that the aircraft was no longer airworthy and wasn't safe to fly without a ferry permit issued bythe Administrator. 

### Id at 22 (emphasis added). The BoiU"d upheld the ALJ's findings in this case. 

### Id. at 5. While we agree with Respondentthatto be airworthy an airc!"aftneednotbe 

### inperfectcondition --the extent ofthe defects here leaves no doubt that this aircraft, N4682F, was not airworthy. Counsel for the Respondent argues thatthe aircraft was "flyable." And fortuitously, it was flyable-it made itback. We note; however, that even NTSB opinions recognize the long-standing distinction between airworthiness and "flyability." "An aircraft may be flyable but not be airworthy." 

### Administrator v. 

### Olsen, NTSB OrderNo. EA-3743, 1992 WL 371359 (1992). "That a discrepancy maybe, inrespondent's eyes, a 

### de minimis deviation from the aircraft's type certit1cate is also no basis for this Board to dismiss the Administrator's § 91.29(a) (now 91.7(a)) order." 

### Id., see also, Administratorv. 

### Pierce, NTSB Order No. EA-4965, 2002 WL 538086 (2002) where Respondent was aware ofthe discrepancies. A ferry pennitmayhave been obtained; however, none was sought nor issued in this particular case. A ferry permit may be issued to fly an unairworthy aircraft, but one that is in safe condition to tly- BUT ONLY AFTER IT IS FIRST INSPECTED AND REPAIRED AS NECESSARY AND A SPECIAL FLIGHT PERMIT ISSUED BY THE FAA. One cannot equate safe

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flight with airworthiness. 

### Reid4 N.T.S.B. 934 (1983), 

### aff'd765 F.2d 1457 (91 h Cir, 1985). Respondent never availed itselfnor apparently even considered this course ofaction. Both Inspectors Boler and Terry testified as to the safety offlight concerns resulting from the existing discrepancies onRespondent's aircraft. Respondent's claim inhis reply brief, page 6, subparagraph B, regarding the broken window;"
...common sense dictates this light material and the slow speed ofthe aircraft give no cause for alarm," does not appear inthe trail transcript. Moreover, "unsubstantiated and unsupported factual allegations by attorneys in briefs do not constitute evidence." 

### In lhe Matter**ofNorthw~st**

### Airlines, Inc., FAA OrderNo. 1998-22 (December 7, 1998). Clearly, the overwhelming relevant and determinative Agency case precedent and legal authority, as well as the inapplicability ofthe NTSB decisions relied upon by Respondent, supports the Agency's Complaint and the Court's t1nding ofthe violations as alleged and sanction sought. The balance ofRespondent's Briefconsists ofunsubstantiated claims and assertions that
none ofthe uncorrected discrepancies rendered the aircraft unairworthy in violation of 14 C.P.R. 91.7(a). To the contrary, the Agencyhas metits burden ofproofin showingby a preponderance of the reliable, probative, and substantive evidence thatN4682F was in an unairworthy condition, that itwas operated inthat condition, without recoding and repairing those discrepancies, and in a careless orreckless manner. First, Respondentsclaims, overandover, for each ofthe four (4) uncorrecteddiscrepancies
onthe Condition Notice, that Inspector Boler, "
... did not review the type certificate data sheet or any maintenance manuals during her investigation and never referred to the type certificate information to determine the airworthiness ofthe aircraft." This is at best a gross misstatement of**Oklallom~t** Skydiving Cemer I'AA DOCKET NO. CPl OSW0020 DMS No. FAA·2010·121504/19/12 THU 14:44 FAX 13

the evidence. Itis uncontroverted that Inspectors Boler and Terry did not have any manuals or any type certificate data with them on the date ofthe inspection. As testified to, it would be difficult at best to carry that data for every type ofaircratl that they might encounter. (136 Tr. I-ll) WhatRespondent omits is whatInspectorsBoler and Terrydid afterthey returnedtothe FSDO. In her investigation and process ofputting together the enforcement package, Inspector Boler DID REVIEW data and DID REVIEW the Type Certificate for the Cessna206. That is hertestimony. (120 Tr. 2-3; 133 Tr. 9-12, 136 Tr. 1-19) To repeatedly state, literally on each page ofhis reply brief, that Inspector Boler"
... didn't refer to the type certificate intbrmation to determine the airworthiness ofthe aircraft," is simply not accurate. An objective reading oflnspector Boler's testimony and the evidence presented overwhelmingly proves that Inspector Boler did review the type certificate data sheet and manuals during her investigation and did referto the type certificate infonhation to determine the airworthiness ofthe aircraft during her investigation. (61 Tr. 1-19) Here, Inspector Boler testified, supported by Inspector Terry's testimony, and the numerous exhibits entered into evidence, that the aircraft was no longer in its original or properly altered condition, or safe for flight. Furthermore, thetestimony ofRespondent's own Expert Witness supports the Agency's position. When asked ifhe had seen duct tape used on aircraft to make repairs such as this (window), Respondent's Expert Witness responded, "Not such as this. No, sir. I have not." (252 Tr. 14-17; again at 273 Tr. 21-22) Respondent's Expert identitkd the proper Cessna seat stops on the Cessna Illustrated Parts Breakdown (IPB) and that he had seenthem before. (242 Tr. 7-15) His testimony corroboratedthe FAA's position that nuts and bolts are not called for in the Cessna IPB. (Ex. R-I, and R-J) Respondent's Expert would not state that bolts and nuts conformed to the

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original type certificate. (243 Tr. 22; 244 Tr. 1-4), but did testify that A&P mechanics cannot install parts that are not approvedbymanufacturer. (263 Tr. 19 through 264 Tr. l; 266 Tr. 10-2J) Likewise, kespondent's Expert witness declined to state that the aircraft, with the screwprotruding throughthe flap skin, would be in conformity with its type design. (249 Tr. 15-21) When asked, Respondent's Expert agreed with the Agency stating that these discrepancies needed to be repaired. (255 Tr. 21 through 256 Tr. 5) Since all three ofthe FAA Inspectors as well as the Respondent's ownExpert agree that the discrepancies needed to be repaired, there is only one conclusion- the aircraftno longermet its type certificate; itwas unairworthy. In accordancewith Agencyprecedent, there is a preponderance ofreliable, probative, and substantial evidencethatthe aircraft, withthis damage and temporary 'repair,' to be kind, was no longer in conformance with its type design and was, therefore, unai.J.worthy. Secondly, Respondents claims for each ofthe four (4) uncorrected discrepancies onthe Condition Notice (Ex. A-8), that the Administrator 

### [Agency] failed to meet his burdenin regard to proving the aircraft was unsafe for flight. Respondent would have the Court disregard both Agency precedent and the evidence before it a11d any and all testimony bythe FAA Inspectors regarding the safety offlight concerns ofthe four uncorrected discrepancies; however, the preponderance ofreliable, probative, and substantial evidence dictates otherwise. To begin, Agency precedent states that while a minor repair may have no safety implications, the aircraft is lUlairworthy if, as a result ofthe repair, the aircraft no longer conforms to its type design. 

### America West, FAA Order No. 96-3. Respondent claims that Inspector Boler indicated she did not indicate any safety issues in her investigation surrolUlding a cracked window, improper seat stops, cracked and punctured flaps. That allegation flies in the face ofAdminisOklahoma Skydiving CQpter FM DOCKET NO. CP10SW0020 DMS No.**FM-~010-1215** 14101504/19/12 THU 14:45 FAX

trator's Exhibit A-8, the Condition Notice**issu~d** onthe date ofthe inspection, which expressly states: The items listed "are" considered to be an imminent hazard to safety. Operation ofthe aircraft prior to correction "will"be contrary to pertinent Federal Aviation Regulations. A special Flight Permit "will" be required to be issued prior to operation ifcorrective action has not been taken. 15

Ifthis does not indicate "safety issues," nothing the FAA does could do so. To claim that the FAA failed to indicate any "safety issues" during their investigation when the Inspectors actually showedthe aircraft owner/operator airworthiness discrepancies withtheir aircraft, toldthem about each, andthentake the extraordinary step offilling-out and handing to thatperson, on-the-spot, an Aircraft Condition Notice (Ex. A-8) with the "imminent hazard to safety" blocked checked, is incredulous. Respondent would place the burden ofregulatory compliance
onthe FAA; however, underthe FAAct, compliance is the responsibility ofeach certificate holder, and itis expected. Likewise, Respondentwould appearto have the Court impose an 

### "actuaf' hazard standard in this case; however, 14 C.P.R.§ 91.13(a) only requires that there be a "potential" danger. 

### PolynesianAirways, Inc., FAA OrderNo. !994-40 (December 9, 

### J994); 

### see also DavidH Mayer, FAA Order No. 1997-12 (February 20, 1997). The Agency introduced substantial, reliable, and probative evidence, includingthe testimony ofthe FAA lnspectors establishing the potential, ifnot actual, safety concems for each discrepancy. Thepotential safety hazard ofthe window pieces being cracked and departing the aircraft created a significantrisk for impactwith the horizontal stabilizer, the vertical stabilizer, or the

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rudder during flight. Impact could cause loss ofcontrol ofthe flight. (52 Tr. 9-17) Any matters affecting the safety offlight are matters affecting airworthiness. As InspectorTerry explained, he wouldn't fly an aircraft with a broken window init not knowing how the strength ofthe duct tape, whether it wouldhold or would the windowhold. He testified about experiencinghaving a door open on an airplane in flight andthe "awful lotofnoise" itmakes. He also expressed an additional safety concern in thatpart ofthat window could fly back and hit a control surface causing the aircraft becomeuncontrollable. (161 Tr. 6-15) Likewise, Respondent'sExpertWitness would not rebut the Inspector's testimony regarding safety (254 Tr. 21-22; 255 Tr. 1-15), and in fact, agreed with the FAA thatthese discrepancies needed to be repaired. (255 Tr. 3-5) Both Inspectors Boler and Terrytestified that the screwprotruding from the lower skin could possiblyjam the flap, leading to an asymmetrical flap condition, which could lead to a significant controllabilityproblem (53 Tr. 18-22; 54 Tr. l-8), leading into a very dangerous situation
as the airspeed decreases one could approach the stall speed, and the aircraft becoming uncontrollable leadingto "an accident andpersonal injury." (163 Tr. 3-19) Withregardto thecracks intheright 'flap, Inspector Terry testified thatseeingthe cracks in the right flap he would not fly the aircraft under any circumstances, and that it was an imminent hazardto safety, (174 Tr. 16 through 177 Tr. 7), and thatMr. Reeves' operation ofthe aircraft in that condition was a substantial disregard for safety. (189 Tr. 3) Likewise, Inspector Boler stated that a safety concerns with the flap is possible internal dan1age, which would be unknown without
an inspection. (53 Tr. 21-22; 54 Tr. I-3) The directtestimony ofRespondent's Expert supports the Agency's case in chief, as he would not say that the cracks in the right flap were not an immincnt hazard to safe flight. (255 Tr. 6-1 5)

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Finally, there is a definite potential, ifnot actual, safety ha2ard resulting from installing seat stops that do not conform to the aircraft's type design. When asked, "Why do we care ifthe seats in a Cessnahave the right stops in thein or not," Inspectors Boler and Terry stated, "There have beennumerous accidents which have resulted from incorrect seat stops being installed. "Cessna aircraft have been known for seats sliding backwards at rotation because the pins that actually go into the holes in the rails will become worn down. Cessna's tix for that was to create seat stops to keep the seat from sliding all the way backwards at a critical time offlight such as at rotation. When the seat sliding all the way backwards at rotation the yoke goes with the pilot and the airplane goes straight up and could lead into a stall spin situation could lead to an accident." This creates a significant safety risk for the pilot." (47 Tr. 3-9; 88 Tr. 13-18) and (160 Tr. 4-17) Respondent's Expert Witness agreed and also admitted that improperly installed seat stops are dangerous. (243 Tr. 9) Tn fact, Inspector Bolertestified that the photographs from this inspection
were used as part ofa national safety alert for operators to ensure that proper seat stops are installed prior to flight for safe operations because improper seat stops present such a significant safety hazard. (130 Tr. 15-22; 131 Tr. 1-10) (Ex. R-1, and R-J) The fact is, the Respondent has notproduced even a scintilla ofevidence to rebutthe Agency's claim thatN4682F was Wlairworthy and or not ina condition for safe flight. 7 Respondent's only claim is that the FAA did not violate the pilot, and thatN4682F successfully flew all weekend long hauling 100 skydivers on over 30 flights, without crashing" First, the Agency's prosecutorial discretion is not a proper issue to raise in this forum. Secondly, "flyability" is not

7 Where the Administrator establishes a primafacie case, the petitioneris obliged to offer evidence in rebuttat Proud v.CAB, 357 F.2d Z21 (7"' Cir. 1996).

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synonymous with airworthiness or safety. Administrator v. Copsey, NTSB Order EA-3448 at 5 (1991) (test for airworthiness is not "tlyability"; the aircraft must be 

### in conformance with its type certificate and in condition for safe flight). The fact that no onewas injured is purely fortuitous.

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW Withregard to airworthiness, the Agency is required only to prove either that Respondent violated the first prong or that it violated the second, not both. Rushmore Helicopters, Inc., FAA OrderNo. 2010-0023 (October 3, 2011), likewise, a discrepancy unaddressed renders and aircraft unairworthy. 

### GeneralAviation, PAA OrderNo. 1998-18. The Agency has proven by a preponderance ofthe reliable, probative, and substantive evidence that on July 11,2009: 1. N4682F did not conform to its type certificate when ithad a broken window, and the repair thereto, which is unacceptable to the Administrator (ducttape), therefore failing to meet the first prong ofthe two-pronged definition ofairworthiness. 2. N4682F was not in a condition safe for flight as thebrokenwindow and improperrepair created a potential safety risk, therefore, failing to meet the secondprong ofthe two-pronged definition ofairworthiness. 3. N4682F did not conform to itstype certificate when it had improper seat stops installed thus failing to meetthe tlrst prong ofthe two-pronged definition ofairworthiness. 4. N4682F was not in a condition safe for flight as improper seat stops created a potential safety risk, therefore, failing to meetthe second prong ofthe two-pronged definition bfairworthiness.

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5. N4682F did not conform to its type certificate when it had a screw protruding through the leftflap skin, thus failingtomeetthe first prong ofthe two-pronged definition ofairworthiness. 6. N4682F was not in a condition safe for flight as the screw protruding through the left flap skin and the unknown cause for itcreated a potential safety risk, therefore, failing to meet the second prong ofthe two-pronged definition ofairworthiness. 7. N4682F did not conform to its type certificate when ithad cracks in the right flap, therefore failing to meetthe first prong ofthe two-pronged definition ofairworthiness. 8. N4682F was not in a condition safe for flight as the cracks intherightflap and unknown possible damage within created a potential safety risk, therefore, failing to meet the second prong ofthetwo-pronged definition ofairworthiness. 9. None ofthe discrepancies were addressed before operating the aircraft on July 11, 12, and 13, 2009. I0. Individually or cumulatively, the airworthiness discrepancies then existing on N4682F, caused the aircraft to notmeetthe airworthiness standard requiredby 14 C.P.R. §91 .7(a) prior to operation. II. Respondentknewpriorto operatingthe aircraft, and admitsto this, that it was aware of the discrepancies, eachbeing shown tohim andthenlistedon a ConditionNoticehandedto himby Inspector Boler, indicating that "Theitems listedbeloware considered to be animminenthazardto safety, andthat operation ofthe aircraft prior to correction will be contrary to pertinent Federal Aviation Regulations, and that a special ferry permit will be needed." 12. Respondent operated N4682F onJuly ll, 12, and 13,2009, on atleast 35 flights, carrying as many as 100 passengers while it did not conform to its type certificate or was not in a

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condition safe for flight. Oklahoma Skydiving operatedthis aircraftin an unairworthyconditionin violation of 14 C.P.R.§ 91.7(a) 8

While Respondent asserts that, "at no time was the aircraft operated in an unairworthy condition and as such, all inspections were performed in accordance withFederal Aviation Regulations as outlined in part 43," this does not address the Agency's allegation ofa violation of 14 C.P.R. § 91.405(a). The Agency has metits bwden ofproofin showing by apreponderance ofthe reliable, probative, and substantive evidence that on July 11, 2009, the date ofthe ramp inspection, N4682P had four (4) unresolved maintenance discrepancies, each ofwhich rendered the aircraft unairworthy. The next required inspection was accomplished on July 24, 2009. Between these dates, all available evidence and testimony proffered at trial conclusively shows that the owner/operator ofN4682Fdid not- between required inspections
... have these discrepancies repaired
as prescribed in part 43 ofthis chapter, prior to operating the aircraft. Mr. Reeves testified he "flewthe aircraft" to Riverside Airport in Tulsa, Oklahoma for repairs onMonday, July 13,2009. (307 Tr. 16-22) Hedidnottestifythathe "ferriedthe airworthy aircraft." (Respondent's Brief, page 16, line 6) In fact, he testified unequivocally that he did not get a ferry permitto fly the aircraft as required by the Condition Notice despite the fact that he. knew about the discrepancies. (309 Tr. 15-17) The testimony ofInspector Kout, who reviewed the logbooks and introduced them into evidence (Ex. A l0-12) was uncontroverted. The dis8 Del. Skyways, FAA OrderNo.**~005-6;** Cal.**Helite~h,** FAA OrderNo, 2000-18; Emery, FAA OrderNo. 97-30; GeneralAviation, FAA OrderNo. 1998-18; USAir, FAA Order No. 96-25;America West, FAA Order No. 96-3.

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crepancies existed onJuly 11, 2009. The aircraft flew on July 11, 12, and 13,2009. No ferry permit was issued or inspection accomplished on the aircraft. Finally, on July 17, 2009, six (6) days after the ramp inspection, (214 Tr. 4-9) afterthe aircraft had flown 35 flights, carried I00 passengers and accumulated 19.7 hours of±1ight time, were any entries made in the aircraft Jogbook and repairs accomplished inaccordance with 91.405(a). The aircraft's logbook showed that three (3) ofthe discrepancies listed onthe above referenced condition notice, including replacing the cracked window, stop [drilling] cracks inthe rightlower flap skin, and installing reinforcement plates on the cracked right flap skin, and left flap, (21 0 Tr. 22; 211 Tr. 1-1 8) were signed for as beingrepairedby a certificatedmechanic, Gaylord A. Syrstad, A&P 3024178, onJuly 17, 2009, at aircraft tachometer time of8,364.0 hours. (Ex. A-10, A-ll, and A-12) 

### lt was not until later, July 24, 2009, atthe next required inspection, that the maintenance·records indicate that new Cessna seat stops were installed on the pilot seat rails. (Ex. A-12) Respondent admits in his reply that there is no indication the seat stops were repaired until July 24,2009, during the 100-hour inspection. (Ex. A-12). (214 Tr. 4-9). Respondent then baldly claims that the Administrator "ignores uncontroverted testimonythat the seat stops had been replaced with borrowed ones onJuly 11, 2009." Mr. Reeves' testimony regarding his installation ofthose sea( stops is self-serving at best and shouldbe afforded no weight. In an enforcement proceeding such as this one, the FAAmay sustain its burden ofproving thatrequiredmaintenance has notbeen completed byrelying onthe absence oftherequisite entries in the aircraft's maintenance record. See Del. Skyways, FAA Order No. 2005-6; Cal. Helitech, PAA Order No. 2000-18. As such, the FAA is entitled to rely only onN4682F's maintenance records in determining whether the pilot seat stops had been appropriately installed or any other

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maintenance performed. The Agency is not obligated to inquire further. Maintenance records, as the Administrator has often stated, are the linchpin ofthe agency's enforcement efforts. Agency inspectors may rely on them in determining whether required maintenance has beenperformed. Cal. Helitech, FAA Order No. 2000-18; WattsAgriculturalAviation d/b/a GrowersAirService, FAA OrderNo. 91-8 (July 5, 1991), pp. 15-16, review den. sub. nom., Watts AgriculturalAviation
v. Busey, 977 F.2d 594 (D.C. Cir. 1992). As such, the Agency is entitled to concludejust from a reviewofpertinentrecords, as introduced andtestifiedto at trial, (Ex. A-3-12) thatthe replacement ofthe left-handpassenger side window (cracked and duct taped); repairs tothe left-hand flap with the hole (screwprotruding) and the cracked right-hand flap; as well as the installation ofproper Cessna seat stops, had not been accomplished as ofJuly 11, 12, or 13, 2009, and these discrepancies were only enteredinto the aircraft logbook after those dates. (Ex. A-

### J0- 12) Likewise, the Agency is entitled to conclude from the evidence that the seat stops were not installed in N4682F until July 24, 2009. The possibility that Oklahoma Skydiving may have in fact performed any unsubstantiated maintenance is not pertinent to the charge. (215 Tr. 11 through 216 Tr. 3) Itis important, and Respondent gives this pointshortshrift, that 91.405 mandates that discrepancies be "repaired as prescribed in part 43 ofthis chapter."9 Only an A&P mechanic or a repairman employedby a certificated repair stationmayperform aircraftmaintenance 10
, to include installation seat stops, replace windows, etc. Respondent would have this court believe that Mr.

9 Part 43, which His Honortookjudicial notice of, states that each person who maintains, performs preventive**maintenance~** rebuilds, or ahers an aircraft, airframe; aircraft engine, propeller, appliance, or component part shall make an entry in the maintenance record ofthat equipment containing the following information: (I) A description (or reference to data acceptable to the Administrator) ofwork perfonned. (2) The date ofcompletion ofthe work perfonned. (3) The nrune ofthe person perfonning the work
.... Jo Maintenance is defmed in part 43 to mean "the inspection,**overhaul~** repair1 upkeep, and preservation ofairframes, powerplants, propellers and appliances, including the replacement ofparts."

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Reeves installed the seat stops at issue. Respondent objected attrial as to whether ornot Mr. Reeves could install the seat stops, (131 Tr. 14-22) yet Mr. Reeves said he did. He claimed that Inspector Bolerwatched him install at leastone (two are required), yet Inspector Boler did not see any such thing. (I32 Tr. 20-22) In order for Oklahoma Skydiving to have complied with 91.405(a), withregard to the seat stops, an A&P mechanic wouldhave hadto have first entered the discrepancy into the logbook, secondly, properly installed the proper seat stops, and third, signed offthe installation and clearedthe discrepancy. The record, the evidence, and the testimony prove that this is notwhat happened. Any claim byRespondentthat "he did something (maintenance)" mustbe viewed in the context ofAgency precedent which is clear; the Agency mustbeable to rely
on the accuracy ofaircraft records to determine compliance. The records here rebut any self-serving, unsubstantiated statements byMr. Reeves. "A policy ofleniency toward recordkeeping inevitably encourages carelessness in the timely performance ofrequired maintenance, to the derogation ofsafety
...." 

### Administrator v. 

### Newman, 1NTSB 2008,2010 

### (1972),pet.for review denied, 494 F.2d 1219 (2d Cir. 1974).

PROPOSED FJNDING OF FACT AND CONCLUSIONS OF LAW N4682F accumulated 19.7 hours (35 flights with 100 passengers total) between the initial FAA inspection (condition notice issued on July 11, 2009) and the date the A&P mechanic indicated that hehad taken corrective action, approximately six (6) days later when he replaced the cracked window, stop [drilling] cracks in the right lower flap skin and installed reinforcement plates on the cracked right flap skin, and left flap. The Cessna seat stops were not installed until the date ofthe next required inspection, the 100-hour inspection, onJuly 24,2009. Oklahoma

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Skydiving did not have that aircraft inspected as prescribed in subpart E, and did not between required inspections
...have discrepanciesrepaired as prescribed inpart43 ofthis chapter when it operated this aircraft with open discrepancies onJuly 11, 2009, withtwo passengers onboard, in violation of14 C.P.R. § 91.405(a). 11

Pursuant to FAA.Order 2150.3B, (Ex. A-2), "When a person operates an aircraft in violation ofa specific regulation other than 14 C.F.R. § 91.13
... !hat violation constitutes a careless or reckless operation in and ofitself. In these cases, the misconduct may also result in a violation of 14 C.F.R. § 91.13 ifit actually orpotentially endangers the lives or property ofothers." Respondent's violation of 14 C.F.R. § 91.7(a), operating an unairworthy aircraft on July 11, 2009, carrying two passengers, constitutes careless operation 

### in and ofitselfunder 14 C.F.R. § 91.13(a). In this case, Respondent's operation ofN4682F was not merely a technical violation of 14 C.F.R. §9!.13(a), butthe operation was a separate, independent violation. Respondent's operation involvedan unairworthy as well as unsafe aircraft. Respondentplaced itspassengers andthe pilot of the aircraft at risk. Inits Answer(Ex. A-1),trial testimony, and replybrief, Respondent admitsthat onthedate ofthe event, July 11, 2009, atthe conclusion ofthe FAAinspection, an "Aircraft ConditionNotice," Inspector Boler issued FAA Form 8620-1, listing the tollowing discrepancies:
• Pilot Seat stops do not meet manufacturer specifications (bolts installed)

11 Cal. He/ /tech, FAA OrderNo. 2000-18; WattsAg., FAAOrderNo. 91-8 (July 5, 1991), review den sub. nom, Watts AgriculturalAviation v. Busey, 977 F.2d 594 (D.C. Cir. 1992).

Oklahoma Skydiving Center F

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• Left hand flap has hole • Right hand flap cracked • Left hand passenger side window cracked and duct taped (Ex. A-8) 

### 25

The Aircraft Condition Notice described above noted that the items listed "are" considered to be an imminenthazard to safety. Operation ofthe aircraft prior to conection "will" be contrary to pertinent Federal Aviation Regulations. A special FlightPermit "will" be required to be issued prior to operation ifcorrective action has not been taken. Mr. Jack Reeves waspersonally shown each ofthe discrepancies by the FAA Inspectors, and handed the Condition Notice. Mr. Reeves' testimony confirms this as well as the fact that the Inspectors first showedhim each ofthe discrepancies prior to issuing the Condition Notice. (297 Tr. lines 9-15) 

### Mr. Reeves testified that Inspector Bolertold him that unless the discrepancies were correctedtheflightwas going to becontraryto theregulations andmaybe a violation. (297 Tr. 16-22; 298 Tr. 1-2) Reeves also admitted that Inspector Bolertold him that ifthe aircraftwas flown [Oklahoma Skydiving] may be in violation, (298 Tr. 3-6) Atthis time, Reeves well-1111derstood the ramifications offailing to deal properly withthese matters. Nevertheless, 

### Mr. Reeves repeatedlytold the Inspectors ofhis intentto operate the aircraft, (58 Tr. 2-9; 59 Tr. 5-7; 60 Tr. 7-11; 164 Tr. 12-14; 165 Tr. 9-20; 299 Tr. 12-14; 310 Tr. 3-8) (Ex. A-3 & 9), and then didjustthat. To be airworthy, an aircraft must conform to its type design and be in a condition for safe operation. 

### Emery, FAA OrderNo. 97-30, 

### et. al. Therefore, any matters affecting the safety of flight are matters affecting airworthiness. Despite being told and shownthe problems, and being handed a ConditionNotice, Mr. Reeves admitted thatthe aircraft was operated on Saturday and Sunday, July 11thand 12th, 2009, and fuat he personally flew itto have itrepaired on Monday,

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July 13th, (299 Tr. 3-5), without obtaining a ferry permit. (309 Tr. 15-17) Reeves testified that the aircraft made "guessed" 35 take off's and landings that Saturday and Sunday prior to the aircraft being repaired onJuly 17, 2009. Reeves admitted, and itis uncontroverted, that the flap problems and broken window were not repairedfreplaced until July 17, 2009, some six (6) days later, during which time Mr. Reeves testified that the aircraft was flown 19.7 hours, on at least 35 flights, and carried 100 people. (306 Tr. 4-19; 301 Tr. 12-17; Tr. 306 4-13) As the owner ofOklahoma Skydiving and the aircraft, Mr. Reeves was aware ofthe discrepancies, having a condition notice in-hand. This is where Respondent's choice ofNTSB decisions are particularly fatal to his case. Applying both 

### Thibert and 

### Frost, Respondent Oklahoma Skydiving knew ofthe discrepancies before it operated the aircraft, and did so anyway. A discrepancy unaddressed renders and aircraft unairworthy. 

### GeneralAviation, FAA Order No, 1998-18. Aware ofthe fact that the discrepancies were not repaired, he knowingly operated this aircraft with open discrepancies on July 11,2009, with two passengers on-board, as well as numerous other flights. He carelessly and recklessly placed the passenger's and pilot's lives in potential risk. 12
PROPOSED FINDING OF FACT AND CONCLUSIONS OF LAW Oklahoma Skydiving knowingly operated N4682F onJuly 11, 2009, with open discrepancies and two passengers onboard. Oklahoma Skydiving operated N4682F onJuly II, 2009, in a careless and reckless manner so as to endanger the lives or property ofanother in violation of 14

12 Complainant is not required to show that the described condition was unsafe in fact. It was enough to demonstrate that it carried the potential for harm. Rushmore, FAA Order No. 2010-0023: citingPolynesian, FAA OrderNo. 1994-40; Mayer, FAA Order No. 1997-12.
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C.P.R.§ 91.13(a). 13

The AGENCY'S choice ofsanction in this case is a civil penalty in the amount of $8,000.00. This amount is reasonable and warranted by the circumstances. The AGENCY asks the Judge to defer to its sanction guidance as set forth in FAAOrder 2150.3B. (A relevant excerpt
was admitted as Administrator's Exhibit A-2.) His Honor is familiar with 49 U.S.C. § 46301 and would ask for the Court's deference in this matter. The violations committed by Oklahoma Skydiving were notminor ones, nor were they inadvertent. They were committedknowingly and willfully, with his full understandingthat ithad
nobusiness --underthe federal aviation regulations- operating that aircraftthat day, or any other until they were corrected. There is no evidence that any ofthe mitigating factors setforth in49 U.S.C. 

### §4630l(e) are present in a way that could reduce the amount ofthe penalty. Respondent Oklahoma Skydiving Center operated a Cessna 206 onJuly 11, 2009, after failing properly to address four discrepancies that FAA inspectors had found. Respondent unacceptably compromised the safety ofthis flight that it operated while the aircraft was inthis unairworthy condition with passengers on board. Complainantbears the burden of justifyingthe amount ofthe civil penalty it seeks. Phyllis Jones Luxemburg, FAA Order No. 1994-18 (June 22, I994), p. 6. However, it is Respondent's burden to plead and prove fmancial hardship sufficient to warrant mitigation ofthe civil penalty
. amount. Conque.)·t Helicopters, FAA Order No. 1994-20 (June 20, !994), p. 3; Salvatore

"GeneralAviation, FAA OrderNo. 1998-18 at 13, Emery, FAA Order No. 97-30.

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Giuffrida. FAA OrderNo. 92-72 (December 21, 1992), p. 2. Respondent has not done so in this
case. The Agency prays that the court deferto its choice and amNmt ofsanction 

### inthis case and
assess a civil penalty in the amount of$8,000. This amount is reasonable and warranted by the circumstances. Itwill promote enforcement ofthe PARs and help deter this Respondent and others in its position from operating inviolation ofthem and is well-within the guidelines ofFAA Order 2150.3B sanction guidance upon which it is based.



### V.PRAYER
WHEREFORE, the Agency asks the Court to find that the Agency has met its burden of proofin showing by a preponderance ofthe reliable, probative, and substantive evidence that Oklahoma Skydiving Center operatedN4682F in an unairworthy condition, without recoding and repairing discrepancies, and in a careless orreckless manner, for which a civil penalty of$8,000 mustbe sustained. Respectfully submitted this 19th day ofApriL 2012.



### E I Counsel

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### 2601 Meacham Blvd., 663 Fort Worth, TX 76137 Phone: 817/222-5083 FAX: 817/222-5945 e-mail: gregory.s.lander@faa.gov 2.9

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LIST OF CITATIONS



### America WestAirlines, FAA OrderNo. 96-3 (Feb. 13, 1996). 

### Calavaero, NTSB OrderNo. EA-232

### J (1986). 

### California Helitech, FAA Order No, 2000-18 (August 11, 2000). 

### Conquest Helicopters, FAA OrderNo. 1994-20 (June 20, 1994). 

### Copsey, NTSB Order EA-3448 (1991). 

### Delaware Skyways, LLC, FAA Order No. 2005-6 (March 8, 2005). 

### Emery Worldwide Airlines, Inc., FAA Order No. 97-30 (October 7, !997). 

### Frost, NTSB OrderNo. EA-4680 (1998). Gatewood, CP97EA0071, 2001 WL 629390 (May 16, 2001). 

### GeneralAviation, FAA OrderNo. 1998-18 (October 9, 1998). 

### Giuffrida, FAA OrderNo. 92c72 (December 21, 1992). 

### Hackshmv, NTSB OrderNo. EA-5501 (2010). 

### Krivitsky, NTSB OrderNo. EA-5444 (2009). 

### Luxemburg, FAA OrderNo. 1994-18 (J\Ule 22, 1994). 

### Mayer, FAA OrderNo. 1997-12 (February 20, 1997). 

### Newman, I NTSB 2008,2010 

### (J972),pet.for review denied, 494 F.2d 1219 (2d Cir. 1974). 

### NorthwestAirlines, FAA OrderNo. 1998-22 (December 7, 1998). 

### Olsen, NTSB Order No. EA-3743 (1992). 

### Opat, NTSB OrderNo. EA-5290 (2007). 

### Pierce, NTSB Order No. EA-4965 (2002).

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### PolynesianAirways, Inc., FAA Order No. 1994-40 (December 9, 1994). 

### Proudv. CAB, 357 F.2d 221 (7 1h

### Cir. 1996). 

### Reid, 4 N.T.S.B. 934 (1983), 

### ajf'd765 F.2d 1457 (9111 

### Cir. 1985). 

### Richardson & 

### Shimp, CP91S00260 & 

### CP91S00261, 1992 WL 753157 (July 22, 1992).**Ru~·hmore** 

### Helicopters, Inc., FAA Order No. 2010-0023 (October 3, 2011). 

### Scuderi, NTSB Order No. EA-5321 (2007), 2007 \VL 

### 2846495. Terry & 

### Menne, FAA Order No. 91-12 (April12, 

### 199!),pet.forreconsideration denied, FAA Order No. 91-31 (August 2, 1991);pet. 

### denied, 976 F.2d 1445 (D.C. Cir. 1992). 

### UnitedParcel Service, CP08S00007, 2008 \VL 

### 4911181, 

### appeal dismissed, 2008 WL 5560854 (December 29, 2008). 

### USAir, FAA OrderNo. 96-25 (August 12, 1996). Watts

### AgriculturalAviation, Inc. v. Busey, 

### 977 F.2d 594 (9th Cir. 1992), 

### Thibert, NTSB Order No. EA-5306 (2007).-

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CERTIFICATE OF SERVICE Thereby certify that the signed original and a copy ofComplainant's Rebuttal Briefhas been sent this date by facsimile, CERTIFIED MAlL-RETURN RECEIPT REQUESTED, and via First Class Mail, to; FAA 800 Independence Ave., S.W. Washington, DC 20591 Attn: Hearing Docket Clerk; AGC-430 Wilbur Wright Building- Suite 2WIOOO I certify that a copy ofComplainant's Rebuttal Briefhas been sent this date byfacsimile and CERTIFIED MAIL-RETURN RECEIPT REQUESTED, to:
The Honorable Richard C. Goodwin, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E., Room Ell-310 Washington, DC 20590 Tel: 202-366-2139 Fax: 202-366-7536
Bret A. Glenn, Respondent's Counsel Bret A. Glenn, Attorney at Law, P.C. 414 N.W. 4111 Street, Suite 200 Oklahoma City, OK 73102 Tel: 405-702-4980 Fax: 405-702-4984

Marqui Robinson Paralegal Specialist Safety Enforcement Branch Federal Aviation Administration

Oklahoma Skydiving Center PAA DOCKET NO. CPIOSW0020 OMS No.**FAA~2010~12l:5** 141033