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/Courier Address 

2601 Meacham Boulevard 

Fort Worth, Texas 76137 

T (817.222.5099) 

F (817 .222.5945/5092) 

Facsimile 

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 of the individual or entity to 

which it is addressed and may contain information that is privileged, confidential, and 

exempt from disclosure under applicable law" 

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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 NOW the Federal A viatlon Administration (Complainant), through its undersigned counsel, hereby submits this Rebuttal Brief on Proposed Findings of Fact and Conclusions 

of Issue of Law for the hearing held on January 10, 2012, before· Administrative Law Judge 

Richard C. Goodwin of the Department of Transportation, in Oklahoma City, Oklahoma. His 

Honor heard the testimony and saw the evidence, and it is clem' that the AGENCY has proven its 

case by a preponderance of the reliable, probative, and substantive evidence. 

FAA inspectors West and Terry testified that during the July 11 tl> ramp inspection, the 

forward skin of the 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 of the left flap at the inboard flap tnick. A screw had punctured the flap skin and was lodged 

in the hole. The flap skin was torn around the screw head. This condition presented a potential 

hazard because it was unknown if ther.:: was any structural damage beneath the flap skins, or what 

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caused the cracks. Furthermore, there may have been damage within the flap-track that could have 

resulted in one of the flaps improperly extending relative to the flap on the opposite wing of the 

aircraft resulting in asymmetrical lift -resulting in possible loss of control. They testified that the 

aircraft had a broken cabin window, with an improper repair consisting of duct tape. They testified 

that safety could be affected because the window could break off and strike the horizontal stabilizer, rudder, or elevator or jam it or do structural damage potentially resulting in the loss of aircraft control. Likewise, they testified that the aircraft did not have the proper seat stops installed. 

This created a potential, if not actual safety concern because the pilot seat could slide aft during 

takeoff resulting in a loss of control of the aircraft and accident. 

They testified that the issue is such a concern that it was the issue of a recent safety initiative by the FAA. 1 

What there is no evidence of, and we heard no testimony to, was that a certificated mechanic repaired these known discrepancies prior to operation on July II, 2009, according to accepted or approved FAA data, and that the aircraft properly returned to service. Despite being told 

about the discrepancies, shown each of them, and then handed a Condition Notice, and told that the 

aircraft was unsafe for flight, Mr. Reeves tWice stated to the inspectors that, "He was going to fly." 

(310 Tr. 3-8) Following the FAA Inspector's handing of the Condition Notice to Mr. Reeves, 

Respondent did just that- operating the aircraft with two passengers on-board. We heard the Inspector's testimony that they saw the aircraft taxiing for take-off, heard the pilot call, saw the 

1 The Safety Alert for Operators (SAPO), 10016, Missing or Tmproper Seat Stops 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 seat rails to meet airworthy requirements. 

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aircraft takeoff, saw the jumpers depart the aircraft, and saw the 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, it must conform to its type design, and, second, it must be in 

condition for safe operation. It must 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 Skyways LLC, FAA Order No. 2005-6 at 2 (March 8, 2005): California Helitech, FAA Order 

No, 2000-18 at2 n. 7 (August II, 2000); America West Airlines, FAA Order No. 96-3, 1996 FAA 

Lexis 1064 (February 13, 1996); and Emery Worldwide Airlines, Inc., FAA Order No. 97-30 

(October 8, 1997), p. 17, 1997l<'AA Lexis 1279. 'These unresolved maintenance discrepancies 

rendered N4682F un-airworthy on July 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, on his company, the Respondent. Oklahoma Skydiving Center knowingly operated this 

aircraft with open discrepancies on July 11 and 12, 2009, while carrying passengers. It did not 

record and correct these discrepancies prior to the next required inspection. By knowingly operating the aircraft in a known unairworthy condition, it did so in a careless or reckless manner. In so 

doing, it operated in violation of§§ 9!.7(a), 91.40S(a), and 91.13(a) of the FARs as alleged. 

In his 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 of the 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 of his 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 Administrator provide aircraft type certiticates, type 

certiJicate data sheets, etc., to prevail at trial. As his Honor is aware, NTSB decisions are not 

determinative in these actions and the Administrator is not bound to followthe1n. Ronald C. Terry 

andChristopherJ. Menne, Order No. 91-12 (April 12, 1991),p. 3. n. 6; pet. for reconsideration 

denied, FAA Order No. 91-31 (August 2, 1991); pet. denied, 976 F.2d 1445 (D.C. Cir. !992).3 

Respondent ignores; however, the Administrator's decision in a case directly on-point. In America 

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, it was clear that speed tape 

was not in conformance with the aircraft's type certificate as it was not a part of the original, ap~ 

proved condition of the aircraft or an approved repair. Id. The Administrator stated: 

"Although Complainant did not introduce the type designs, there was ample evidence, nonetheless, that the 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 of the 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. 

2 Administrator v. Thibert, NTSB Order No. EA-5306 (2007); mistakenly cited throughout tho brief as BA-5305. 

3 See also, In the Matter of Richardson and Shimp, 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 that while a minor, temporary repair using speed tape 

may not have had extreme safety implications, it still makes the aircraft unai1worthy if, as a result 

of the repair, the aircraft no longer conforms to its type design. !d. at 8. The Administrator affirmed the AU's fmding of operation of an 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 of United Parcel Servke, CP08S00007, 

2008 WL 4911181, appeal dismissed, 2008 WL 5560854 (December 29, 2008), concerned three 

small, barely discernible dents on the lower surface of the inboard flap on the right-hand wing of 

an Airbus A-3004 operated by the United Parcel Service. As Judge Benkin opined, "The violations 

of the FAR that UPS has committed are regrettable and certainly deserve some sanction; but they 

carJ hardly be considered "grave" in nature, nor did they pose a significant threat to aviation 

safety." !d. at 8. Nevertheless, he continued, "What is most troublesome about UPS' conduct, as 

demonstrated by the facts of this case, is simply its rather cavalier attitude toward damage to one of 

its aircraft, damage that it recognized required permanent repair under the FAR." !d. at 9. 

Judge Benkin's sunnnation of the UPS case is applicable here. Oklahoma Skydiving was 

aware of the damage to the aircraft, they knew the discrepancies needed to be repaired, had a 

4 The Airbus A-300 is a much larger aircrafl than Respondent's 206 Cessna. The maximum takeoff weight of the 

A-300 is between 360,000-376,000 pounds. The maximum takeoff weight of a Cessna 206 is approximately 3,600 

pounds. 

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Condition Notice in hand, and yet intentionally operated the aircraft. Here, as in the UPS case, it is 

apparent that "unwarranted hubris was at stake." I d. Nevertheless, despite the fact that the three 

dents were barely discernible and there was no adverse effect on aviation safety shown; Judge 

Benkin held that dents rendered the aircraft unairworthy, and UPS's operation of that aircraft violated the FAR as charged in the complaint. The precedent for this is well-established. "While a 

minor repair may have no safety implications, the aircraft is unairworthy if, as a result of the 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 on the matter of determining airworthiness; however; Respondent ignores determinative case law in favor of a few NTSB opinions which he purports are 

determinative in this matter. Respondent's reliance on his choice of opinions is unfort\Ulate1y 

misplaced in that none of the 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 proposition that, "In determining 

whether an aircraft is airworthy ... the Board considers whether the operator knew or should have 

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 that the pilot operated an aircraft that was unairworthy; however, in that case, the pilot was not aware of the discrepancies. Put plainly, Thibrm 

requires the Administrator, in certificate action cases, to determine, "What did the pilot know, and 

s See also, Administrator v_ Frost, NTSB Order No. EA-4680 (!998), cited by Respondent for the same premise as 

Thibert. 

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when did he know it." The Agency, even if required to comport with this requirement, cleared this 

hurdle ab inlitio, as Mr. Reeves admits that the discrepancies had been 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 took no action in response to the cracked flap, punctured flap, or broken window before 

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 in Administrator v. 

Opat, NTSB Order No. EA-5290 (2007). Opat is likewise a pilot certificate action involving the 

operation of an aircraft. This case is also easily distinguishable from the case before this court. In 

Opal, the FAA "STIPULATED that Respondent's operation of the 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 the unsafe conditions, in addition to the express warning on the 

face of the Condition Notice itself. (Ex. A-8) Any reliance upon Opat by Respondent is clearly 

misplaced. 

Calavaero6 is Respondent's fmal NTSB decision cited to support his proposition that 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 to being in a 

safe condition to operate, must 'be in conformity with its type certificate in order to 

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, or performance has been impaired by the defect to the degree that the 

aircraft no longer conforms to its type certificate. 

Jdat 1101. 

6 Administrator v. Calavaero, NTSB Order No. EA-2321 (1986). 

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There is no need to debate whether or not this case is contra to the Agency's position as 

established in General Aviation, FAA Order No. 1998-18, Emery, FAA Order No. 97-30, or UPS, 

cited above. This very issue, in fact, very question, was asked directly to the Inspector Boler at 

trial. Beginning on page 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 conform to its type design or its properly altered condition 

and it must also be safe for flight. 

Q Okay. Does that mean that 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 Boler was unequivocal about this issue, both on direct as well as cross and 

re-cross examination. As an A&P and IA holder, as well as an FAA Inspector, she stated that the 

repair to the window was not accomplished using methods acceptable to the Administrator. Inspector Boler testified that neither broken windows nor duct tape is inc! uded in the type designs of 

the aircraft. She testified that the aircraft was unairworthy with the broken window and the duct 

tape applied. She testified that the aircraft was not built with cracked or punctured flap skins, and 

that they are not included in the type designs of this aircraft, and the proper repairs to eliminate the 

cracks and puncture were not made. Inspector West testified that the aircraft was unairworthy 

because it was not in its original or properly altered condition, and it was 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" 

of corrosion, etc. The cases upon which Respondent relies involve discrepancies "unknown" to 

· the pilot, "worn markings," "faded paint," or a missing placard. In none of the cases relied upon by 

Respondent are there discrepancies that approach the magnitude of severity as we have here. 

Furthermore, in none of Respondent'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 of the 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 or more AFTER the aircraft had been operated; clearly 

. distinguishable from the case here before the court. 

It must 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 in this case, and would, if determinative, lead this court to issue a decision sustaining the 

Agency's findings and sanction. In Administrator v. Scuderi, NTSB Order No. EA-5321, 2007 

WL 2846495 (2007), the Board upheld the finding of the Administrator as to the unairworthiness 

of an aircraft. In that case, Mr. Scuderi operated his aircraft too close to another aircraft and 

bumped the 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 off again. 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 operator knew or should have knowu of any deviation in the aircraft's conformance with its type 

certificate." I d. at 3. Turning to the issue of the Administrator not introducing 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 of the 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 as possible after the 

collision. Tr. at 216. Respondent's awareness of the potentially unsafe condition 

leads us to conclude that his operation of the aircraft resulted in a violation of § 

91. 7(a). (The Board also found a violation of 91.13(a). I d. at 4 (emphasis added). 

In fact, the Board, in FN 15, specifically distinguished Thibert stating that, "in Thibert the 

Administrator did not prove that Respondent knew or should have known of an alleged discrepancy." I d. The Respondent's claim that failure to introduce the aircraft's type certificate data into 

evidence is fatal to the Agency or Administrator'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 attempted to land gear up, resulting in prop strikes and damage to 

the propeller blades. The pilot, nevertheless, continued to operate the aircraft on additional flights. 

At trial, the Judge stated, "it was not relevant that Inspector Frank did not himself look at the aircraft's type certificate until the hearing." Id. at 20. The judge also stated that, "There can be no 

genuine dispute that the aircraft did not leave the factory with homemade locks on the landing gear 

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to keep the gear in the 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 and reasonable steps had not 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 by the Administrator. Id 

at 22 (emphasis added). 

The BoiU"d upheld the ALJ's findings in this case. Id. at 5. While we agree with Respondent that to be airworthy an airc!"aft need not be in perfect condition --the extent of the defects 

here leaves no doubt that this aircraft, N4682F, was not airworthy. Counsel for the Respondent 

argues that the aircraft was "flyable." And fortuitously, it was flyable-it made it back. 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 Order No. EA-3743, 1992 WL 371359 (1992). "That a discrepancy maybe, in respondent'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, Administrator v. Pierce, 

NTSB Order No. EA-4965, 2002 WL 538086 (2002) where Respondent was aware of the discrepancies. 

A ferry pennit may have 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 itself nor apparently even considered this course of action. 

Both Inspectors Boler and Terry testified as to the safety of flight concerns resulting from 

the existing discrepancies on Respondent's aircraft. Respondent's claim in his reply brief, page 6, 

subparagraph B, regarding the broken window;" ... common sense dictates this light material and 

the slow speed of the aircraft give no cause for alarm," does not appear in the trail transcript. 

Moreover, "unsubstantiated and unsupported factual allegations by attorneys in briefs do not 

constitute evidence." In lhe Matter ofNorthw~st Airlines, Inc., FAA Order No. 1998-22 (December 7, 1998). Clearly, the overwhelming relevant and determinative Agency case precedent 

and legal authority, as well as the inapplicability of the NTSB decisions relied upon by Respondent, supports the Agency's Complaint and the Court's t1nding of the violations as alleged 

and sanction sought. 

The balance ofRespondent's Brief consists of unsubstantiated claims and assertions that 

none of the uncorrected discrepancies rendered the aircraft unairworthy in violation of 14 C.P.R. 

91. 7(a). To the contrary, the Agency has met its burden of proof in showing by a preponderance of 

the reliable, probative, and substantive evidence that N4682F was in an unairworthy condition, 

that it was operated in that condition, without recoding and repairing those discrepancies, and in a 

careless or reckless manner. 

First, Respondents claims, over and over, for each of the four ( 4) uncorrected discrepancies 

on the 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 of the aircraft." This is at best a gross misstatement of 

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the evidence. It is uncontroverted that Inspectors Boler and Terry did not have any manuals or 

any type certificate data with them on the date of the inspection. As testified to, it would be difficult at best to carry that data for every type of aircratl that they might encounter. (136 Tr. I-ll) 

What Respondent omits is what Inspectors Boler and Terry did after they returned to the FSDO. In 

her investigation and process of putting together the enforcement package, Inspector Boler DID 

REVIEW data and DID REVIEW the Type Certificate for the Cessna 206. That is her testimony. 

(120 Tr. 2-3; 133 Tr. 9-12, 136 Tr. 1-19) To repeatedly state, literally on each page of his reply 

brief, that Inspector Boler" ... didn't refer to the type certificate intbrmation to determine the 

airworthiness of the 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 refer to the type certificate 

infonhation to determine the airworthiness of the aircraft during her investigation. (61 Tr. 1-19) 

Here, Inspector Boler testified, supported by Inspector Terry's testimony, and the numerous exhi bits entered into evidence, that the aircraft was no longer in its original or properly altered condition, or safe for flight. 

Furthermore, the testimony of Respondent's own Expert Witness supports the Agency's 

position. When asked if he 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 seen them before. (242 Tr. 7 -15) 

His testimony corroborated the 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 approved by manufacturer. (263 Tr. 19 through 264 Tr. l; 266 Tr. 10-2 J) 

Likewise, kespondent' s Expert witness declined to state that the aircraft, with the screw protruding through the 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 of the FAA Inspectors as well as the 

Respondent's own Expert agree that the discrepancies needed to be repaired, there is only one 

conclusion- the aircraft no longer met its type certificate; it was unairworthy. In accordance with 

Agency precedent, there is a preponderance of reliable, probative, and substantial evidence that the 

aircraft, with this 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 of the four (4) uncorrected discrepancies on the 

Condition Notice (Ex. A-8), that the Administrator [Agency] failed to meet his burden in 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 by the FAA Inspectors 

regarding the safety of flight concerns of the four uncorrected discrepancies; however, the preponderance of reliable, 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 of the 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 of AdminisOklahoma Skydiving CQpter 

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trator's Exhibit A-8, the Condition Notice issu~d on the date of the inspection, which expressly 

states: 

The items listed "are" considered to be an imminent hazard to safety. Operation of the 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 if corrective action has not been taken. 

15 

If this 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 showed the aircraft owner/operator airworthiness discrepancies with their aircraft, told them 

about each, and then take the extraordinary step of filling-out and handing to that person, 

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 of regulatory compliance 

on the FAA; however, under the FAAct, compliance is the responsibility of each certificate holder, 

and it is expected. 

Likewise, Respondent would appear to 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. 

Polynesian Airways, Inc., FAA Order No. !994-40 (December 9, J 994); see also David H Mayer, 

FAA Order No. 1997-12 (February 20, 1997). The Agency introduced substantial, reliable, and 

probative evidence, including the testimony of the FAA lnspectors establishing the potential, if not 

actual, safety concems for each discrepancy. 

The potential safety hazard of the window pieces being cracked and departing the aircraft 

created a significant risk for impact with the horizontal stabilizer, the vertical stabilizer, or the 

Oklahoma Skydiving Center 

FAA DOCKET NO. CPIOSW0020 

PMS No. FAA-2010-1215 

liiJ 016 
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16 

rudder during flight. Impact could cause loss of control of the flight. (52 Tr. 9-17) Any matters 

affecting the safety of flight are matters affecting airworthiness. As Inspector Terry explained, he 

wouldn't fly an aircraft with a broken window in it not knowing how the strength of the duct tape, 

whether it would hold or would the window hold. He testified about experiencing having a door 

open on an airplane in flight and the "awful lot of noise" it makes. He also expressed an additional 

safety concern in that part of that window could fly back and hit a control surface causing the 

aircraft become uncontrollable. (161 Tr. 6-15) Likewise, Respondent's Expert Witness would not 

rebut the Inspector's testimony regarding safety (254 Tr. 21-22; 255 Tr. 1-15), and in fact, agreed 

with the FAA that these discrepancies needed to be repaired. (255 Tr. 3-5) 

Both Inspectors Boler and Terry testified that the screw protruding from the lower skin 

could possibly jam the flap, leading to an asymmetrical flap condition, which could lead to a significant controllability problem (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 leading to "an accident and personal injury." (163 Tr. 3-19) 

With regard to the cracks in the right 'flap, Inspector Terry testified that seeing the cracks in 

the right flap he would not fly the aircraft under any circumstances, and that it was an imminent 

hazard to safety, (174 Tr. 16 through 177 Tr. 7), and that Mr. 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 direct testimony of Respondent'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) 

Oklaho!'na Skydiving Cent~r 

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17 

Finally, there is a definite potential, if not actual, safety ha2ard resulting from installing 

seat stops that do not conform to the aircraft's type design. When asked, "Why do we care if the 

seats in a Cessna have the right stops in thein or not," Inspectors Boler and Terry stated, "There 

have been numerous 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 of flight 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 Boler testified that the photographs from this inspection 

were used as part of a 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. 1-1 0) (Ex. R-1, and R-J) 

The fact is, the Respondent has not produced even a scintilla of evidence to rebut the 

Agency's claim that N4682F was Wlairworthy and or not in a condition for safe flight. 7 Respondent's only claim is that the FAA did not violate the pilot, and that N4682F 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 prima facie case, the petitioner is obliged to offer evidence in rebuttat Proud 

v.CAB, 357 F.2d Z21 (7"' Cir. 1996). 

Oklahoma Skydiving Center 

fAA DOCKET NO. CPIOSW0020 

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18 

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 one was injured is purely fortuitous. 

PROPOSED FINDINGS OF FACT AND CONCLUSIONS OF LAW 

With regard 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 

Order No. 2010-0023 (October 3, 2011), likewise, a discrepancy unaddressed renders and aircraft 

unairworthy. General Aviation, P AA Order No. 1998-18. The Agency has proven by a preponderance of the reliable, probative, and substantive evidence that on July 11,2009: 

1. N4682F did not conform to its type certificate when it had a broken window, and the 

repair thereto, which is unacceptable to the Administrator (duct tape), therefore failing to meet the 

first prong of the two-pronged definition of airworthiness. 

2. N4682F was not in a condition safe for flight as the broken window and improper repair 

created a potential safety risk, therefore, failing to meet the second prong of the two-pronged 

definition of airworthiness. 

3. N4682F did not conform to its type certificate when it had improper seat stops installed 

thus failing to meet the tlrst prong of the two-pronged definition of airworthiness. 

4. N4682F was not in a condition safe for flight as improper seat stops created a potential 

safety risk, therefore, failing to meet the second prong of the two-pronged definition bf airworthiness. 

Oklalwma Skydiving Center 

FAA DOCKET NO. CPIOSW0020 

DMS No. FAA-2(110-1215 

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19 

5. N4682F did not conform to its type certificate when it had a screw protruding through 

the left flap skin, thus failing to meet the first prong of the two-pronged definition of airworthiness. 

6. N4682F was not in a condition safe for flight as the screw protruding through the left 

flap skin and the unknown cause for it created a potential safety risk, therefore, failing to meet the 

second prong of the two-pronged definition of airworthiness. 

7. N4682F did not conform to its type certificate when it had cracks in the right flap, 

therefore failing to meet the first prong ofthe two-pronged definition of airworthiness. 

8. N4682F was not in a condition safe for flight as the cracks in the right flap and unknown 

possible damage within created a potential safety risk, therefore, failing to meet the second prong 

of the two-pronged definition of airworthiness. 

9. None ofthe discrepancies were addressed before operating the aircraft on July 11, 12, 

and 13, 2009. 

I 0. Individually or cumulatively, the airworthiness discrepancies then existing on 

N4682F, caused the aircraft to not meet the airworthiness standard required by 14 C.P.R. § 91 .7(a) 

prior to operation. 

II. Respondent knew prior to operating the aircraft, and admits to this, that it was aware of 

the discrepancies, each being shown to him and then listed on a Condition Notice handed to him by 

Inspector Boler, indicating that "The items listed below are considered to be an imminent hazard to 

safety, and that operation of the 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 on July ll, 12, and 13,2009, on at least 35 flights, 

carrying as many as 100 passengers while it did not conform to its type certificate or was not in a 

Oklahoma Skydiving Center 

FAA j)()CKETNO. CPIOSW0020 

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20 

condition safe for flight. Oklahoma Skydiving operated this aircraft in an unairworthy condition in 

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 with Federal Aviation Regulations as outlined in part 43," this does not address the Agency's allegation of a violation of 14 

C.P.R. § 91.405(a). The Agency has met its bwden of proof in showing by a preponderance of the 

reliable, probative, and substantive evidence that on July 11, 2009, the date of the ramp inspection, 

N4682P had four (4) unresolved maintenance discrepancies, each of which 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 ofN4682F did not- between required inspections ... have these discrepancies repaired 

as prescribed in part 43 of this chapter, prior to operating the aircraft. 

Mr. Reeves testified he "flew the aircraft" to Riverside Airport in Tulsa, Oklahoma for 

repairs on Monday, July 13,2009. (307 Tr. 16-22) He did not testify that he "ferried the airworthy 

aircraft." (Respondent's Brief, page 16, line 6) In fact, he testified unequivocally that he did not 

get a ferry permit to fly the aircraft as required by the Condition Notice despite the fact that he. 

knew about the discrepancies. (309 Tr. 15-17) The testimony of Inspector Kout, who reviewed 

the logbooks and introduced them into evidence (Ex. A l 0-12) was uncontroverted. The dis8 Del. Skyways, FAA Order No. ~005-6; Cal. Helite~h, FAA Order No, 2000-18; Emery, FAA Order No. 97-30; 

General Aviation, FAA Order No. 1998-18; USAir, FAA Order No. 96-25; America West, FAA Order No. 96-3. 

Oklahoma Skydiving Center 

FM DOCKET NO. CP10SW0020 

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21 

crepancies existed on July 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) after the aircraft had flown 35 flights, carried I 00 

passengers and accumulated 19.7 hours of±1ight time, were any entries made in the aircraft Jogbook and repairs accomplished in accordance with 91.405(a). The aircraft's logbook showed that 

three (3) of the discrepancies listed on the above referenced condition notice, including replacing 

the cracked window, stop [drilling] cracks in the right lower 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 

being repaired by a certificated mechanic, Gaylord A. Syrstad, A&P 3024178, on July 17, 2009, at 

aircraft tachometer time of 8,364.0 hours. (Ex. A-10, A-ll, and A-12) lt was not until later, July 

24, 2009, at the 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 testimony that the seat stops had been replaced with borrowed ones on July 

11, 2009." Mr. Reeves' testimony regarding his installation of those sea( stops is self-serving at 

best and should be afforded no weight. 

In an enforcement proceeding such as this one, the FAA may sustain its burden of proving 

that required maintenance has not been completed by relying on the absence of the requisite entries 

in the aircraft's maintenance record. See Del. Skyways, FAA Order No. 2005-6; Cal. Helitech, 

P AA Order No. 2000-18. As such, the FAA is entitled to rely only on N4682F's maintenance 

records in determining whether the pilot seat stops had been appropriately installed or any other 

Oklahoma Skydi~i.ng Center 

FAA DOCKET NO. CPlOSW0020 

OMS No. FAA·2010-1215 

I{!] 022 
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22 

maintenance performed. The Agency is not obligated to inquire further. Maintenance records, as 

the Administrator has often stated, are the linchpin of the agency's enforcement efforts. Agency 

inspectors may rely on them in determining whether required maintenance has been performed. 

Cal. Helitech, FAA Order No. 2000-18; Watts Agricultural Aviation d/b/a Growers Air Service, 

FAA Order No. 91-8 (July 5, 1991), pp. 15-16, review den. sub. nom., Watts Agricultural Aviation 

v. Busey, 977 F.2d 594 (D.C. Cir. 1992). As such, the Agency is entitled to conclude just from a 

review of pertinent records, as introduced and testified to at trial, (Ex. A-3 -12) that the replacement 

of the left-hand passenger side window (cracked and duct taped); repairs to the left-hand flap with 

the hole (screw protruding) and the cracked right-hand flap; as well as the installation of proper 

Cessna seat stops, had not been accomplished as of July 11, 12, or 13, 2009, and these discrepancies were only entered into the aircraft logbook after those dates. (Ex. A-J 0- 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) 

It is important, and Respondent gives this point short shrift, that 91.405 mandates that discrepancies be "repaired as prescribed in part 43 of this chapter."9 Only an A&P mechanic or a 

repairman employed by a certificated repair station may perform aircraft maintenance 10, to include 

installation seat stops, replace windows, etc. Respondent would have this court believe that Mr. 

9 Part 43, which His Honor took judicial 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 of that equipment containing the following information: 

(I) A description (or reference to data acceptable to the Administrator) of work perfonned. 

(2) The date of completion of the work perfonned. 

(3) The nrune of the person perfonning the work .... 

Jo Maintenance is defmed in part 43 to mean "the inspection, overhaul~ repair1 upkeep, and preservation of airframes, 

powerplants, propellers and appliances, including the replacement of parts." 

Oklahoma Skydiving Ctmler 

FAA DOCKET NO. CPIOSW0020 

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23 

Reeves installed the seat stops at issue. Respondent objected at trial as to whether or not Mr. 

Reeves could install the seat stops, (131 Tr. 14-22) yet Mr. Reeves said he did. He claimed that 

Inspector Boler watched him install at least one (two are required), yet Inspector Boler did not see 

any such thing. (I 32 Tr. 20-22) In order for Oklahoma Skydiving to have complied with 

91.405(a), with regard to the seat stops, an A&P mechanic would have had to have first entered the 

discrepancy into the logbook, secondly, properly installed the proper seat stops, and third, signed 

off the installation and cleared the discrepancy. The record, the evidence, and the testimony prove 

that this is not what happened. Any claim by Respondent that "he did something (maintenance)" 

must be viewed in the context of Agency precedent which is clear; the Agency must be able to rely 

on the accuracy of aircraft records to determine compliance. The records here rebut any 

self-serving, unsubstantiated statements by Mr. Reeves. "A policy of leniency toward recordkeeping inevitably encourages carelessness in the timely performance of required maintenance, to 

the derogation of safety .... " Administrator v. Newman, 1 NTSB 2008,2010 (1972),pet.for review 

denied, 494 F .2d 1219 (2d Cir. 197 4). 

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 he had 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 of the next required inspection, the 100-hour inspection, on July 24,2009. Oklahoma 

Oklahoma Skydiving Cent~r 

FAA DOCKET NO. CP10SW0020 

DMS No. FM-2010-lZIS 

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24 

Skydiving did not have that aircraft inspected as prescribed in subpart E, and did not between 

required inspections ... have discrepancies repaired as prescribed in part 43 of this chapter when it 

operated this aircraft with open discrepancies on July 11, 2009, with two passengers on board, 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 of a specific regulation other than 14 C.F .R. § 91.13 ... !hat violation constitutes a careless or 

reckless operation in and of itself. In these cases, the misconduct may also result in a violation of 

14 C.F.R. § 91.13 if it actually or potentially endangers the lives or property of others." 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 of itself under 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), but the operation was a separate, independent violation. Respondent's operation involved an unairworthy as well as unsafe aircraft. Respondent placed its passengers and the pilot of 

the aircraft at risk. 

In its Answer (Ex. A-1), trial testimony, and reply brief, Respondent admits that on the date 

of the event, July 11, 2009, at the conclusion of the FAA inspection, an "Aircraft Condition Notice," 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 Order No. 2000-18; Watts Ag., FAA Order No. 91-8 (July 5, 1991), review den sub. nom, Watts 

Agricultural Aviation v. Busey, 977 F.2d 594 (D.C. Cir. 1992). 

Oklahoma Skydiving Center 

F M DOCKET NO. CP10SW0020 

DMS No. FAA·2010-1215 

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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 imminent hazard to safety. Operation of the aircraft prior to conection "will" be contrary 

to pertinent Federal Aviation Regulations. A special Flight Permit "will" be required to be issued 

prior to operation if corrective action has not been taken. Mr. Jack Reeves was personally shown 

each of the discrepancies by the FAA Inspectors, and handed the Condition Notice. Mr. Reeves' 

testimony confirms this as well as the fact that the Inspectors first showed him each of the discrepancies prior to issuing the Condition Notice. (297 Tr. lines 9-15) 

Mr. Reeves testified that Inspector Boler told him that unless the discrepancies were corrected the flight was going to be contrary to the regulations and may be a violation. (297 Tr. 16-22; 

298 Tr. 1-2) Reeves also admitted that Inspector Boler told him that if the aircraft was flown 

[Oklahoma Skydiving] may be in violation, (298 Tr. 3-6) At this time, Reeves well-1111derstood 

the ramifications of failing to deal properly with these matters. Nevertheless, Mr. Reeves repeatedly told the Inspectors of his intent to 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 did just that. 

To be airworthy, an aircraft must conform to its type design and be in a condition for safe 

operation. Emery, FAA Order No. 97-30, et. al. Therefore, any matters affecting the safety of 

flight are matters affecting airworthiness. Despite being told and shown the problems, and being 

handed a Condition Notice, Mr. Reeves admitted that the aircraft was operated on Saturday and 

Sunday, July 11th and 12th, 2009, and fuat he personally flew it to have it repaired on Monday, 

Oklahoma Skydiving Center 

PAA DOCKET NO. CPIOSW0020 

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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 on July 17, 2009. Reeves admitted, and it is 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 of Oklahoma Skydiving and the aircraft, Mr. Reeves was aware of the 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 of the discrepancies before it operated the aircraft, and did so anyway. A discrepancy unaddressed renders and aircraft unairworthy. General Aviation, FAA Order No, 

1998-18. Aware of the 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 on July 11, 2009, with open discrepancies and two passengers onboard. Oklahoma Skydiving operated N4682F on July II, 2009, in a 

careless and reckless manner so as to endanger the lives or property of another 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: citing Polynesian, FAA Order No. 

1994-40; Mayer, FAA Order No. 1997-12. 

Okhilioma Sk')'diving Center 

FAA DOCKET NO. CP10SW0020 

DMS No. FM-2010-1215 

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2.7 

C.P.R.§ 91.13(a). 13 

The AGENCY'S choice of sanction 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 FAA Order 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 not minor ones, nor were they 

inadvertent. They were committed knowingly and willfully, with his full understanding that it had 

no business --under the federal aviation regulations- operating that aircraft that day, or any other 

until they were corrected. There is no evidence that any of the mitigating factors set forth in 49 

U.S.C. § 4630l(e) are present in a way that could reduce the amount of the penalty. Respondent 

Oklahoma Skydiving Center operated a Cessna 206 on July 11, 2009, after failing properly to 

address four discrepancies that FAA inspectors had found. Respondent unacceptably compromised the safety of this flight that it operated while the aircraft was in this unairworthy condition 

with passengers on board. 

Complainant bears the burden of justifying the amount of the civil penalty it seeks. Phyllis 

Jones Luxemburg, FAA Order No. 1994-18 (June 22, I 994), p. 6. However, it is Respondent's 

burden to plead and prove fmancial hardship sufficient to warrant mitigation of the civil penalty . 

amount. Conque.)·t Helicopters, FAA Order No. 1994-20 (June 20, !994), p. 3; Salvatore 

"General Aviation, FAA Order No. 1998-18 at 13, Emery, FAA Order No. 97-30. 

Oklahoma Skydiving Center 

FAA DOCKET NO. CPl OSW0020 

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28 

Giuffrida. FAA Order No. 92-72 (December 21, 1992), p. 2. Respondent has not done so in this 

case. 

The Agency prays that the court defer to its choice and amNmt of sanction in this case and 

assess a civil penalty in the amount of $8,000. This amount is reasonable and warranted by the 

circumstances. It will promote enforcement of the PARs and help deter this Respondent and 

others in its position from operating in violation of them and is well-within the guidelines ofF AA 

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 of the reliable, probative, and substantive evidence that 

Oklahoma Skydiving Center operated N4682F in an unairworthy condition, without recoding and 

repairing discrepancies, and in a careless or reckless manner, for which a civil penalty of $8,000 

must be sustained. 

Respectfully submitted this 19th day of ApriL 2012. 

E 

I Counsel 

Oklahoma Skydiving Center 

FAA DOCKET NO. CPIOSWOQ20 

DMS No. fAA-2010·1215 

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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 

Oklahoma Skydiving Center 

fAA DOCKET NO. CPIOSW002D 

OMS No. FM~ZOI{l-1215 

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30 

LIST OF CITATIONS 

America West Airlines, FAA Order No. 96-3 (Feb. 13, 1996). 

Calavaero, NTSB Order No. EA-232 J (1986). 

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

Conquest Helicopters, FAA Order No. 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 Order No. EA-4680 (1998). 

Gatewood, CP97EA0071, 2001 WL 629390 (May 16, 2001). 

General Aviation, FAA Order No. 1998-18 (October 9, 1998). 

Giuffrida, FAA Order No. 92c72 (December 21, 1992). 

Hackshmv, NTSB Order No. EA-5501 (2010). 

Krivitsky, NTSB Order No. EA-5444 (2009). 

Luxemburg, FAA Order No. 1994-18 (J\Ule 22, 1994). 

Mayer, FAA Order No. 1997-12 (February 20, 1997). 

Newman, I NTSB 2008,2010 (J972),pet.for review denied, 494 F.2d 1219 (2d Cir. 1974). 

Northwest Airlines, FAA Order No. 1998-22 (December 7, 1998). 

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

Opat, NTSB Order No. EA-5290 (2007). 

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

Oklahoma Skyd1ving Center 

FAA DOCKET NO. CPIOSW0020 

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31 

Polynesian Airways, Inc., FAA Order No. 1994-40 (December 9, 1994). 

Proudv. CAB, 357 F.2d 221 (71h Cir. 1996). 

Reid, 4 N.T.S.B. 934 (1983), ajf'd 765 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.for reconsideration denied, FAA 

Order No. 91-31 (August 2, 1991);pet. denied, 976 F .2d 1445 (D.C. Cir. 1992). 

United Parcel Service, CP08S00007, 2008 \VL 4911181, appeal dismissed, 2008 WL 5560854 

(December 29, 2008). 

USAir, FAA Order No. 96-25 (August 12, 1996). 

Watts Agricultural Aviation, Inc. v. Busey, 977 F.2d 594 (9th Cir. 1992), 

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

Oldahoma Skydivins Cen~r 

FAA OOCK£'1' NO. CP10SWOU20 

DI\-1S No. FAA-2010·1215 

141032 
04/19/12 THU 14:50 FAX 

32 

CERTIFICATE OF SERVICE 

Thereby certify that the signed original and a copy of Complainant's Rebuttal Brief has 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 of Complainant's Rebuttal Brief has been sent this date by facsimile and 

CERTIFIED MAIL-RETURN RECEIPT REQUESTED, to: 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

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