U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant, ; ;.**~-**

vs. DocketNo. FAA-2013-0288 FAA CaseNo. 2012S0190209 AVIONICS MASTERS, INC., Respondent. Judge Sullivan
REPLY IN SUPPORT OF MOTION FORSUMMARYJUDGMENT The FAAhereby replies in support ofits Motionfor Summary Judgment, arguing as follows: FACTS AND BACKGROUND In its Response in Opposition to Summary Judgment, Respondent makes a number of assertions that, while not material to the legal and factual questions driving this case, appear to be presented as somehow exculpatory. Accordingly, the FAAaddresses those briefly here. Respondent complains that the FAA "failedto attach exhibits to the [FAA]'s Motion for Summary Judgment that were exculpatory in nature and were timely disclosed to the [FAA] during the discovery process," citing Chambers & Co. Eguitable Life Assur. Soc. ofthe U.S., 224 F.2d 338, 346 (5th Cir. 1955). Response 

## '!1. Given the contents ofthe remainder ofthe Response, the undersigned presumes thatthis references the "Form 101" thatwas attached to the Response. The Administrator agrees thatthis document was provided during discovery, but notes that it is at best barely legible and was not identified by Respondent prior to the Amended Answer as being a document ofany significance. Additionally, Respondent wholly misrepresents
1the significance ofChambers, in which the Fifth Circuit simply held that it would rule based on the record submitted by the parties on summaryjudgment, rather than remanding a case without any apparent disputes ofmaterial fact so that the appellant could have another try and submitting additional evidence to create one. Chambers, 224 F.2d at 346. Even ifthe Form 101 created a genuine issue ofmaterial fact (which it does not), and even ifthe purported significance ofthe document had ever been disclosed in discovery (which it was not), the undersigned would not have been obligated to present Respondent's case in the FAA's Motion for Summary Judgment. An attorney, ofcourse, has ethical obligations of candor to the tribunal, but it is ridiculous to suggest thatthe FAA was obligated to submit to the Judge a document that purportedly supports
an argument that the Respondent had not even made at the time the FAA filed its Motion for Summary Judgment. The Respondent also continues to point out that it eventually issued a "corrected" Form 8130-3 showing that the gyroscope was inspected, rather than repaired. Response**~** 7-8; Response Attachment I. While Respondent's subsequent "correction" ofthe Form 8130-3 is not material in any event, it is worth emphasizing that the "correction" ofthe Form 8130-3 did not
occuruntil June 6, 2012, 

### see Response Attachment I, block 13, afterthe FAAhad discoveredthe violation on May 14, 2012, sent Respondent a letter of investigation on May 23, 2012, and Respondent had replied to that letter ofinvestigation. 

### See Summary Judgment Attachment J**~** 5; Attachment F; Attachment G. Respondent's "correction" ofthe Form 8130-3 after their violation hadbeen discoveredbythe FAA is not any sort ofmitigating factor inRespondent's favor. I. RespondentAdmits That ItWas Not Authorized To Repair Gyroscopes In its original Answer, Respondent assertedthat it was authorizedto repair the gyroscope, and as a result the FAA's Motion for Summary Judgment addressed this question. 

### See Motion



### 2for Summary Judgment at 5-8. In its Amended Answer, and agam in its Response, the Respondent now admits that it was not authorized to repair the directional gyro. 

### See Response**~** 10. Accordingly, the FAAwill not addressthis pointfurther. II. Respondent Approved the Gyroscope for Returnto Service As Repaired Respondent does, however, continue to dispute whether itreturnedthe directional gyro to service as repaired. As established by the documentary evidence, Respondent did approve the gyro for returnto service as repaired, inviolation ofthe Federal Aviation Regulations. The central problem with which Respondent must contend in arguing against that is the FAAForm 8130-3 on which the Respondent explicitly approvedthe gyro for return to service as repaired. Respondentmakes several arguments on this point, all invain. First, Respondent asserts that it did notreturn the gyro to service, it only approved it for return to service. Response**~** 6. This semantic argument is technically correct, but unavailing. "Approving a part for return to service" and "returning a part to service" are typically used interchangeably. In atechnical sense, a mechanic orrepair station approved the part for return to service, and then the operator actually returns it to service by flying the aircraft. To argue that, technically, Respondent, as a repair station, only approved the part for return to service is unavailing because, technically, Respondent approving the part for return to service completes the violation. Sections 43.7 and 145.201 proscribe and prescribe a repair station's authority to approve an article for return to service

- because Respondent was not authorized to repair the gyro, as soon as Respondent approved the gyro for return to service as repaired they violated the regulations. The fact that FAA inspectors detected the violation before the component was actuallyused in a flight does notmeanthat Respondent did not committhe violation.

3Second, Respondent seeks to attack the significance ofthe Form 8130-3, arguing that it the form for "internal tracking." Notably, although Respondent submits affidavits, these affidavits do not present evidence that the Respondent only used the Form 8130-3 for internal tracking (or used it for internal tracking at all). Indeed, the very title ofthe Form belies this notion- the Form is called an "Authorized Release Certificate
... Airworthiness Approval Tag" because its function is to serve as a document by which a repair station can approve an item for return to service return an item or execute an airworthiness approval1 

### See FAA Order 8130.21G at 1-1 (a copy of which is attached as Exhibit K). Although Respondent cites FAA Order 2150.3G in support ofthe notion that it was using the Form for "internal tracking," Respondents provides no citation to any location where the Order that says the Form should be used for this purpose, and such a use is not among the approved uses for the Form as described inthe Order. 

### See id. Third, Respondent notes that use of Form 8130-3 is optional. Response**~** 3. This is correct, but irrelevant. A repair station is free to develop its own form for returning articles to service as part ofits repair station manual (subject to approval ofthat manual and form by its certificate holding district office), or under appropriate circumstances might make entries directly in an aircraft or engine logbook. But Respondent did not develop its own forms to replace the standard Form 8130-3, and so this possibility is irrelevant. Indeed, even if Respondenthad developed its own returnto service form, butfor some reason chose to use Form 8130-3 instead, that would not excuse an improper returnto service executed onthe Form 8130- 3. The Form 8130-3 at issue here was used by Respondent as the formal record ofthe work it

1As a Part 145 repair station, the only function for whichRespondent canuse Form 8130-3 is for approvals for returns to service, as domestic and export airworthiness approvals are issuedby FAA inspectors or designees. 4performed. Itwas by the Form 8130-3, and only by the Form 8130-3, that Respondent took any action withregards to the gyro. Fourth, Respondent asserts that the Form 8130-3 is not the "primary document" to show what work it performed. This is entirely incorrect. The Form 8130-3 is exactly the document to show what Respondent did with an article

- its entire purpose is to document what was done to the article, and then approve the article for return to service. In this regard, it is noteworthy that Respondent also forgoes its own work order as the applicable document, but rather asserts that the Judge should look at the "workordertaken together with any supporting documents attached to the work order." Response**~**4 (emphasis removed). The reason that Respondent carmot rely
on its own work order is that, of course, the work order itself also explicitly states that Respondent repaired the directional gyro. Respondent instead relies on Response Exhibit 2, which is identified as "Page 13 of 15" of "Form 101" with regards to Work Order 8078 2 The page ofthe Form 101 submitted does not contradict Respondent's Work Order 8078 or Form 8130-3. Indeed, both the Form 8130-3 and Work Order 8078 refer to the directional gyro as being inspected and repaired. See Summary Judgment Attachment D (noting that the gyro was "tested and inspected" and that it was repaired); Summary Judgment Attachment E at 2 (noting that the directional gyro was bench checked and repaired). If Response Exhibit 2 establishes anything, it establishes that the directional gyro was inspected, which is not in dispute. It does not say anything about, or establish anything about, whether Respondent also repaired the gyro
or returned it to service as repaired. Indeed, ifone does what Respondent suggests, and assesses what work Respondent performed based onthe "work order taken together with any supporting documents attached to the work order," then the only conclusion one could draw is that (as

2 Respondent has notproducedthe other 14 pages ofthe document. 5expressly stated on the work order) Respondent performed a bench check on the gyro and repaired it. Fifth, Respondent asserts that it simply made a typographical error on the Form 8130-3, checking the wrong box inblock 12 ofthe form.**Response~** 7. Although Respondent submits an affidavit asserting that the representation that the gyro was repaired was simply the result ofa clerical error when a clerk accidentally marked the box for "repaired" instead of"inspected," see Response Exhibit 3**~** 10. This assertion is demonstrably false. Not only didthe applicable box on the Form 8130-3 state "Repaired," but the description ofthe work performed on the on the Form 8130-3 and the description ofthe work performed on Respondent's Work Order also reference a repair in their text. Ifwhat occurred here was simply the result ofa clerk accidentally clicking the wrong box, then no suchtextwould be present. In sum, the undisputable documentary evidence in this case demonstrates that Respondent approved the direction gyro for returnto service as repaired. Respondent's assertions that its approval for return to service somehow does not matter are meritless and lack any foundation. Respondent's assertionthat the classification ofthe work as a "repair" was the result ofa clerical error is demonstrably, definitively false. III. RespondentPresents No Argument As To The Appropriate Sanction As described in the FAA's Motion for Sununary Judgment, the sanction sought in this
case is the minimum sanction that complies with the Administrator's published sanction guidance. Respondent, in its Amended Answer, asserts that no sanction is appropriate because it did not commit any violation. However, Respondent has presented no argument that, if a violation is found, a different sanctionthanthe one proposed would be appropriate. Accordingly, the Judge should affirmthe amount ofthe violation as well as the fact ofviolation.

6IV. Respondent's "AffirmativeDefenses" Do NotPreclude Summary Judgment On March 18, 2014, the Respondent filed an Amended Answer, in which it identified eight affirmative defenses. These are addressed below. However, as a general matter, the affirmative defenses identified in Answer are not actually affirmative defenses, simply factual assertions or mere denials ofallegation. Respondent's first, second, third, and fourtb affirmative defenses are not affirmative defenses, but simply reiterations of its denials of the allegations of violation found in the Complaint. They do notpreclude summaryjudgment. Respondent's fifth, sixth, and seventh affirmative defenses are not affirmative defenses, but factual assertions. Respondent's fifth affirmative defense is that the FAA Inspectors did not
see the gyro installed on an aircraft. As discussed above, this is true, but irrelevant, as the installation of the component on an aircraft is not an element of the violations alleged. Respondent's sixth affirmative defense is that the FAA discovered the improper Form 8130-3 before Respondenthad the opportunityto "correct" it. This factual observation, even iftrue, does not address any ofthe elements ofthe regulations at issue here, and does not form a defense. Respondent's seventh affirmative defense is that the Form 8130-3 is not the primary document for the work it performed. As discussed above, this assertion is, as a matter oflaw, completely wrong. More pertinently, it is not an affirmative defense, but merely an evidentiary argument, whichis also discussed above. Respondent's eighth affirmative defense is a technical opinion as to whether a particular functional check constitutes a repair. This is also not an affirmative defense, but an evidentiary point. Regardless, as discussed above, the undisputable documentary evidence establishes that

7Respondent did not simply perform a functional check onthe gyro, but approved it for return to service as repaired. In sum, none of the affirmative defenses presented in the Amended Answer are affirmative defenses, but ratherjustifications for Respondent's denials ofthe allegations ofthe Complaint. To the extent they raise relevant points, those points are addressed in Section II above, but the affirmative defenses have no life as affirmative defenses, and do not preclude summaryjudgment. V. EvenIfRespondentDidNotRepairthe Direction Gyro, ItViolatedthe FARs In Respondent's Amended Answer and Summary Judgment Response, Respondent admitted that (contrary to its original Answer and its discovery responses) it was not authorized to perform repairs on the directional gyro. It, instead, squarely presented a defense that it had not actually done any sort ofrepair, buthad instead incorrectly filled outthe Form 8130-3. However, the defense presented by Respondent itself describes a violation of the Federal Aviation Regulations. As aresult, the FAAhas filed an Amended Complaint. As alleged in the alternative inthe Amended Complaint, ifthe Respondent did notrepair the directional gyro, then it violated §§ 43.5(a) and 43.9(a)(l). Section 43.9(a) requires that a person performing maintenance make a maintenance record entry concerning that maintenance. In this case, the record entry is the Form 8130-3. One ofthe components ofthatentry is a description ofthe workperformed. 14 C.F.R. § 43.9(a)(l). In this case, Respondent described the work performed as including a repair. Respondent asserts in its Amended Answer and Summary Judgment Response that that did not perform a repair. As described above, the undisputable documentary evidence establishes that Respondent did approve the gyro for return to service as repaired. However, ifRespondent did not repair the



### 8gyro, then the Respondent did not describe the work it performed as required by§ 43.9(a)(l)- it saidthat ithad repairedthe gyro whenithad not. Additionally, Respondent wonld also have violated § 43.5(a), which prohibits approving
an article for return to service until the entries required by§ 43.9 (or§ 43.11) have been made. As noted above, ifRespondent did notperform arepair, then its maintenance record entry didnot fulfill the requirements of§ 43.9(a). As a resnlt, when Respondent then approved the gyro for returnto service, it violated§ 43.5(a). Further, the sanction described m the Amended Complaint for these violations is appropriate. Inthe Administrator's published sanction guidance, a sanctionrange ofMinimum to Moderate is noted for a repair station's failure to adequately describe the work performed. Summary Judgment Exhibit I at B-21, Figure B-3-b(6). The range ofminimum to moderate for a small business air agency (such as Respondent) is $935 to $7,149. Id at B-5. As described inthe Motion for Summary Judgment, the default sanction under the Administrator's published sanction guidance is the midpoint of the identified range. That figure, $4,042, is the penalty sought in the Amended Complaint for this alternative violation, and is appropriate. Conclusion The documentary evidence in this case demonstrates that Respondent approved the directional gyro for return to service and, as Respondent now admits, Respondent was not permitted to perform such a repair. Respondent now asserts that it did notperform arepair, but a clerk simply selected the wrong box when completing the Form 8130-3. This is demonstrably false, as there are two different references to a repair on the Form 8130-3, including one in the textual description ofthe work performed, and also a reference to a repair on the work order for the gyro. Even on summaryjudgment, the Judge is not required to credit a self-serving affidavit

9that directly contradicts documentary evidence. Additionally, even if the verston of events presented byRespondent was accurate, it would still establish a violation ofthe Federal Aviation Regulations.

## ~.--\ Submittedthis
__day ofApril, 2014.

ChristopherR. Stevensoh Attorney Office ofthe Regional Counsel

10CERTIFICATE OF SERVICE Ihereby certifythat a copy ofthe foregoing Reply in Support ofMotionfor Summary Judgment has been sentthis date bythe following methods: original and one copyvia certified mail: Federal AviationAdministration 800 Independence Avenue, S.W. Attention:Hearing Docket Clerk, AGC-430 Wilbur Wright Building- Suite 2Wl000 Washington, D.C. 20591
one copy via certified mail: Mohammad AhmedFaruqui, Esq. Trial Lawyers Building 633 SE 3rdAvenue, Suite 4R Ft. Lauderdale, FL 33301 Honorable Judge I.E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590

Date

11U.S. DEPARTMENT OF TRANSPORTATION FEDERALAVIATION ADMINISTRATION National Policy ' 

### ORDER 

### :8130.216

10/26/2009

SUBJ: ProceduresforCompletion and Useofthe Authorized Release Certificate, FAA Form 8130-3, Alrworthineas Approval T 

## f9 This orderdescribestheprocedures for completionanduseofthe Federal Avlation Administration (FAA) Authorized ReleaseCertitlcate, FAAForm 8130·3, Airworthiness Approval Tag. The orderdescribes theuseofthe form fur domestic airworthiness approval, conformity inspections, andprepositinning; airworthiness approval nfnew products and articles; and splittingbulk shipmentsofpreviously shippedproducts andarticles. 

### Italso provides guidance for the issuanceoftheform for approval forreturn to service ofproductsandarticles, theexport airworthi!less approval ofproducts 

### and articles, and the electronic exchangeofthe form.

Manager Production and AirworthinessDivision,AlR-200

Distribution: A-W (IRIFSNN)-3; A,X (CD/FS) ·3; A-FFS·O (MAX} Initiated 

### by: AIR·200 A·FAC·O (LTD); AMA-220 (10 copies); AMA·250 (10 copies) AFS-600 (3 copies); AEU-100/200 GOVERNMENT EXHIBIT 

# b10/26/2009 8130.21G Chapter 1. General Information 1-1. Purpose ofThis Order. This order describes the procedures for completion anduse ofthe Federal AviationAdministration (FAA) AuthorizedRelease Certificate, FAAForm 8130-3, Airworthiness Approval Tag (FAAForm 8130-3). The orderdescribes theuse ofthe form for the following purposes:
a. Domestic airworthiness approval, including conformityinspections, prepositioning of newproducts or articlespending approval, and splitting bulk shipments ofpreviouslyproduced products and articles; b. Approval for returnto service ofproducts and articles; and
c. Export airworthiness approval ofproducts and articles.

NOTE: Forthepurposes ofthis order, the termproductrefers onlyto aircraft engines andpropellers. 1-2. Audience. FAApersonnel, designees, production approval holders (PAH), air agencies, U.S. air carrier certificateholders, and distributors. 1-3. Where CanI Find This Order and FAA Form 8130-3? a. You canfmd this order at http://www.faa.gov/regulations_]Jolicies/orders_notices/. b. FAAForm 8130-3 maybe obtainedthrough normal distribution channels from the Logistics Center, AML-8000, P.O. Box 25082, Oklahoma City, Oklahoma, 73125. The telephone number is 405-954-8900 (ask for theFAAForms InventoryManager). FAAForm 8130-3 also is available from the Customer Care Center, AML-30, at405-954-3793 ortoll free at 1-888-322-9824, ormaybe obtained ontheInternet at http://www.faa.gov/aircraft. The stock number for FAAForm 8130-3 is 0052-00-012-9005. 1-4. Cancellation. FAA Order 8130.21F, Procedures for Completionand Use ofthe Authorized Release Certificate, FAAForm 8130-3, Airworthiness Approval Tag, datedMay 30, 2008, is canceleduponthe effective date ofthis revision (thatis, Aprill4, 2010). 1-5. Explanation ofPolicy Changes. Thisrevisiona. Reflects changes andupdates appropriate references following publication of Production andAirworthiness Approvals, Part marking, and MiscellaneousAmendments; Final Rule intheFederal Registerunder docket numberFAA-2006-25877. b. Replaces parts and appliances withthe term "article."
c. Removes references to classes ofproducts. d. Deletes the term "newlyoverhauled" and associated guidelines fromthe description of workperformed.

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