SERVED JUNE 7,2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

BRENDAN AIRWAYS, LLC. 

FAA DOCKET NO. CP09EA0007 

(Civil Penalty Action) 

DMS NO. FAA-2009-0032 

ORDER OF CHIEF ADMINISTRATIVE LAW JUDGE RONNIE A. YODER 

DENYING RESPONDENT'S PARTIAL MOTION TO DISMISS THE 

COMPLAINT AND FOR A MORE DEFINITE STATEMENT, AND GRANTING 

COMPLAINANT'S MOTION TO STRIKE THE RESPONDENT'S SURREPLY 

By "Partial Motion to Dismiss, and for a More Definite Statement" ("Motion to 

Dismiss") served February 12, 2009, Brendan Airways, LLC, ("Respondent") seeks to dismiss 

the Complaint filed by the Acting Regional Counsel, Eastern Region ("Complainant"), Federal 

Aviation Administration ("FAA"), arguing that the Complaint failed to allege sufficient facts to 

make out aprimafacie case that Respondent violated 14 C.F.R. §§ 43.13(a), 43.13(b), 91.7(a), 

and 121.153(a)(2).* In the alternative, Respondent seeks an order for a more definite statement 

' Motion to Dismiss at 3-8. 

14 C.F.R. § 43.13(a) provides: "Each person performing maintenance, alteration, or preventive maintenance on an 

aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current 

manufacturer's maintenance manual or Instructions for Continued Airworthiness prepared by its manufacturer, or 

other methods, techniques, and practices acceptable to the Administrator, except as noted in § 43.16. He shall use 

the tools, equipment, and test apparatus necessary to assure completion of the work in accordance with accepted 

industry practices. If special equipment or test apparatus is recommended by the manufacturer involved, he must use 

that equipment or apparatus or its equivalent acceptable to the Administrator." 

14 C.F.R. § 43.13(b) provides: "Each person maintaining or altering, or performing preventive maintenance, shall 

do that work in such a manner and use materials of such a quality, that the condition of the aircraft, airfi-ame, aircraft 

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regarding the standard that Complainant employs to "judge the airworthiness condition o f 

aircraft under 14 C.F.R §§ 91.7(a) and 121.153(a)(2).^ By its "Answer to Respondents' Partial 

Motion to Dismiss and for a More Definite Statement" ("Answer to Motion") served March 12, 

2009, Complainant contends that it provided Respondent with sufficient notice of the violations 

alleged in the Complaint and requests that a civil penalty of $15,000^ be assessed.'* 

On March 18, 2009, Respondent served "Surreply to Partial Motion to Dismiss, and for a 

More Definite Statement" ("Surreply").^ In response, on March 25, 2009, Complainant served 

"Motion to Strike the Respondent's Surreply to Partial Motion to Dismiss, and for a More 

Definite Statement" ("Motion to Strike") contending that the Surreply is redundant and may not 

be filed at this pouit in the proceeding.^ On April 2, 2009, Respondent served "Opposition to 

Complainant's Motion to Strike Surreply" ("Opposition to Motion to Strike"), arguing that the 

Surreply "is a valuable expansion of the record, and should be allowed in."^ 

For the reasons set forth below, we deny Respondent's Motion to Dismiss and grant 

Complainant's Motion to Strike. 

L BACKGROUND 

engine, propeller, or appliance worked on will be at least equal to its original or properly altered condition (with 

regard to aerodynamic function, structural strength, resistance to vibration and deterioration, and other qualities 

affecting airworthiness)." 

14 C.F.R. § 91.7(a) provides: "No person may operate a civil aircraft unless it is in an airworthy condition." 

14 C.F.R. § 121.153(a)(2) provides: "Except as provided in paragraph (c) of this section, no certificate holder may 

operate an aircraft unless that aircraft... (2) Is in an airworthy condition and meets the applicable airworthiness 

requirements of this chapter, including those relating to identification and equipment." 

^ Motion to Dismiss at 7, 8. 

^Compl.5IV-2. 

•* Answer to Motion at 6-8. 

^ Surreply at 1. The contents of the Surreply are discussed in Part D of this Order. 

* Motion to Strike at 2. 

7 , Opposition to Motion to Strike at 1-2. 

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The Complaint alleges five violations of the Federal Aviation Regulations ("FARs").^ 

First, it alleges that Respondent operated an aircraft in an unairworthy condition in violation of 

14 C.F.R. §§ 121.153(a)(2) and 91.7(a).^ Second, it alleges that Respondent flew the aircraft 

with inoperable instruments or equipment and that the aircraft was not operated in accordance 

with the applicable conditions and limitations of the Minimum Equipment List ("MEL"), in 

violation of 14 C.F.R. § 121.628(a)(5).'° Third, it alleges that Respondent failed to perform 

proper maintenance on the aircraft pursuant to 14 C.F.R. § 43.13(a) and (b)." Respondent 

argues that the allegations that it violated 14 C.F.R §§ 43.13(a), 43.13(b), 91.7(a), and 

121.153(a)(2) are "insufficient on their face and must therefore be dismissed."'^ 

The Complaint alleges the following facts: On May 17, 2008, Respondent operated an 

Airbus A320-212 ("the aircraft") on a flight that took off and landed at Miami International 

Airport ("the flight"). Prior to the flight, maintenance was performed on the aircraft, during the 

course of which the spoiler servo actuators for left wing roll spoilers three and five were placed 

in maintenance mode.'"* After the maintenance was performed, the spoiler servo actuators were 

not returned to operational flight mode.*^ Respondent operated the flight with the spoiler servo 

actuators in maintenance mode.'^ According to the Airbus Maintenance Mzinual for the aircraft, 

spoilers left in maintenance mode will cause "unwanted movement of the spoiler."'^ According 

to the aircraft's MEL, the aircraft caimot be dispatched when two or more spoilers on either wing 

* See Compl. ^ ni-(a) to Ill-(e). 

' See id. M n-19, ffl-(a), Ill-(e). 

'° See id. ffl n-11 to n-16, ffl-(b). 

" See id. ffl II-4 to U-S, m-(c), ni-(d). 

'^ Motion to Dismiss at 3-8. The Motion to Dismiss does not address Complainant's claim that Respondent violated 

14 C.F.R. §121.628(a)(5). 

" Compl. f II-3. 

"'w.^n-4. 

^^Id.\ll-5. 

'* See id. M n-5,11-10 to 11-13,11-15,11-16. 

^'' Id.tll-6. 

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are in an inoperable condition. During the flight, but prior to takeoff, the aircraft's Electronic 

Centralized Aircraft Monitor ("ECAM") displayed a message indicating that there was a failure 

of one of the aircraft's spoiler servojacks.'^ During takeoff, as well as twenty minutes into the 

flight, the ECAM was indicating that four wing roll spoilers were "not operational and/or were 

locked out." The aircraft's pilots were aware that the ECAM was indicating that four wing roll 

spoilers were "not operational and/or were locked out."^' During the aircraft's first landing 

attempt at Miami International Airport, the aircraft's left wing tip made contact with the runway 

and the landing attempt was aborted.^^ The Complaint alleges that this failed landing attempt 

was caused by the inoperable wing roll spoilers.^'' 

Respondent's Motion to Dismiss disputes the facts alleged in the Complaint. According 

to Respondent, the aircraft had reached the end of its lease to Respondent and, pursuant to the 

terms of the lease, Respondent sent the aircraft for maintenance.^'* Respondent alleges that after 

the maintenance on the aircraft was completed, the aircraft was to be returned to the lessor.^^ 

Prior to returning the aircraft, a maintenance acceptance flight was performed to ensure that the 

aircraft was airworthy. Respondent contends that it was only during the flight, after take-off, 

that the crew discovered a problem with the wing roll spoilers.^^ Respondent contends that 

according to a subsequent investigation, the spoilers had been moved into maintenance mode 

^Ud.fU-l4. 

" Compl. f]in-io,n-ii. 

^ Id. m n-15, n-16. The four allegedly inoperative wing roll spoilers were: left wing roll spoiler No. 3, left wing 

roll spoiler No. 5, right wing roll spoiler No. 3, and right wing roll spoiler No. 5. The Complaint does not indicate 

what caused right wing roll spoilers No. 3 and No. 5 to become inoperative. 

^Ud.fU-l3. 

^^W.^n-17,n-18. 

"W. ^11-18. 

^ Motion to Dismiss at 1 -2. 

^' Id. at 2. 

""Id. 

^'Id. 

-4 
during a maintenance operation conducted at the instruction of the aircraft's subsequent lessee.^^ 

Respondent asserts that "none of the work ordered by [Respondent] would have required the 

spoilers to be moved into maintenance mode, and none of [Respondent's] work instructions 

authorized shifting the spoilers into maintenance mode."^^ 

IL DISCUSSION 

Section 13.208(c) of FAA's Rules and Practice sets out the standard for adequacy of a 

Complaint: "A complaint shall set forth the facts alleged, any regulation allegedly violated by 

the respondent, and the proposed civil penalty in sufficient detail to provide notice of any factual 

or legal allegation and proposed civil penalty." 

A motion to dismiss for insufficiency may be granted if it is shown-

"that the complaint fails to state a violation of a provision of the Federal aviation statute 

listed in the first sentence in 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or any 

implementing rule, regulation, or order, or a violation of the Federal hazardous materials 

transportation statute, 49 U.S.C. 5121-5128, or any implementing rule, regulation or 

order."^^ 

Respondent argues that four of the claims alleged in the Complaint, read in the light most 

favorable to Complainant, are insufficient because they allege legal conclusions instead of 

facts.^^ Respondent cites Clegg v. Cult Awareness Network in support of the proposition that 

alleging solely legal conclusions is insufficient in notice pleading. ^^ Yet, as the Complainant 

''Id. 

''Id. 

^° 14 C.F.R. § 13.208(c); City ofPhila., FAA Docket No. CP08EA0009, FDMS No. FAA-2008-0510, 

Administrative Law Judge's Order Granting in Part and Denying in Part Motion to Dismiss the Complaint at 3 (Aug 

5, 2008). 

^' 14 C.F.R. § 13.218(f)(1). 

^' Motion to Dismiss at 3-8. The four allegedly insufficient claims are 14 C.F.R. §§ 43.13(a), 43.13(b), 91.7(a), and 

121.153(a)(2). 

" Id. at 3 (citing generally Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 1994)). 

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notes^^, Clegg was a case between private litigants in which the Federal Rules of Civil Procedure 

were controlling. In an administrative proceeding, a complaint "is sufficient if the respondent 

'understood the issue' and 'was afforded full opportimity' to justify its conduct during the course 

of the litigation.' On a motion to dismiss, the complaint's allegations are accepted as true. 

Accordingly, we evaluate the sufficiency of the Complaint under this standard. 

A. The 14 C.F.R. § 43.13(a) and (b) Claims 

Respondent contends that "[i]n order to prove a violation of 14 C.F.R. § 43.13(a), the 

Administrator must allege [] that the Respondent has used certain methods, techniques, or 

practices..." and that "an integral element to a 43.13(b) claim is [an] allegation that the 

Respondent performed the maintenance."^^ Respondent argues that, since the Complaint fails to 

allege that Respondent performed the maintenance at issue, or that the maintenance was 

performed under Respondent's mstruction, the claims should be dismissed for insufficiency. 

Complainant responds that it is irrelevant whether the maintenance was performed by, or 

imder the direction of. Respondent."^" "Pursuant to 14 C.F.R. § 121.363, the Respondent is 

primarily responsible for the performance of the maintenance of its aircraft .. . [and this] 

regulation does not allow air carriers to evade their primary responsibilities by delegating their 

maintenance obligations to third parties."'^^ 

^* Answer to Motion at 5 n.3. 

^' See Clegg at 754 (case reviewed under FRCP 12(b)(6)). 

^* Aloha Airlines. Inc. v. Civil Aeronautics Bd., 598 F.2d 250, 262 (D.C. Cir. 1979)(quoting NLRB v. Mackey Radio 

& Tel. Co., 304 U.S. 333, 350 (1938)); Flying Food Grroup, Inc. v. NLRB, 471 F.3d 178,183 (D.C. Cir. 2006). 

^''Riverdale Mills Corp., FAA Order No. 2000-25 at 1 (Dec 21, 2000) (citing, generally. United States v. Gaubert, 

499 U.S. 315,327(1991)). 

'* Motion to Dismiss at 4,5. 

''Id. 

'"' Answer to Motion at 6. 

*' Id (citing Alaska Airlines, Inc., FAA Order No. 2004-8, at 6 (Sept 30,2004)). 14 C.F.R. § 121.363 provides: 

(a) Each certificate holder is primarily responsible for~ 

(1) The airworthiness of its aircraft, including airframes, aircraft engines, propellers, appliances, 

and parts thereof; and 

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In Alaska Airlines, Inc., an air carrier was held to be not responsible for the maintenance 

deficiencies performed by its independent contractors because the airline neither knew nor had 

reason to know of the maintenance deficiencies.'*^ On appeal, the Administrator reversed.'*'^ 

According to the Administrator, 14 C.F.R. § 121.363 "does not allow air carriers to evade their 

primary responsibilities by delegating their maintenance obligations to third parties ... . The 

courts and the Administrator . .. have indicated repeatedly in past cases that an air carrier's 

duties, which include a statutory duty to exercise the highest possible degree of care, are nondelegable."'*'* Under § 121.363(b), "arranging maintenance with someone else does not relieve 

the air carrier of its primary responsibility for airworthiness and maintenance."'*^ The 

Administrator also pointed to an FAA-issued guidance emphasizing air carriers' responsibility 

for maintenance performed by independent contractors.'*^ Accordingly, we find that the 

Complaint alleges sufficient facts which, if proven, would support a conclusion that Respondent 

violated 14 C.F.R. § 43.13(a) and (b). 

The Complaint alleges that Respondent violated 14 C.F.R. § 43.13(a) when it performed 

maintenance on the aircraft without using the methods, techniques and practices prescribed in the 

current manufacturer's maintenance mzinual for the aircraft."*^ The Complaint further claims that 

Respondent violated 14 C.F.R. § 43.13(b) when Respondent did not perform the maintenance in 

(2) The performance of the maintenance, preventive maintenance, and alteration of its aircraft, 

including airframes, aircraft engines, propellers, appliances, emergency equipment, and parts 

thereof, in accordance with its manual and the regulations of this chapter, 

(b) A certificate holder may make arrangements with another person for the performance of any 

maintenance, preventive maintenance, or alterations. However, this does not relieve the certificate holder of 

the responsibility specified in paragraph (a) of this section. 

"^ FAA Docket Nos. CP02NM0001, CP02NM0002, and CP02NM0003, FDMS Nos. FAA-2002-11411, 11412, and 

11413, Order Granting Respondent's Motion for Decision at 3 (Jan 10, 2003). 

'*' Alaska Airlines, Inc., FAA Order No. 2004-8 at 1 (October 4, 2004). 

"^ Id. at 6. 

*^ Id. (emphasis in original). 

'^^ Id; Flight Standards Handbook Bulletin for Airworthiness, HBAW-1996-05B at 2 (1996): each airline is 

"responsible for the performance of all elements of its continuous airworthiness maintenance program." 

'^^ See Complaint n 11-4 to II-8, in-(c). 

- 7 -
a manner that resulted in the condition of the aircraft being at least equal to its original or 

properly altered condition. 

Under Alaska Airlines, Inc., Respondent was responsible for the maintenance performed on 

the aircraft.'*' Although Respondent claims that it did not order the maintenance procedures that 

caused the spoilers to be left in maintenance mode. Respondent admits that the aircraft was imder 

lease to Respondent when Respondent sent the aircraft for maintenance^", and the Complaint 

alleges that Respondent operated the aircraft on the flight after maintenance was performed.^* 

As the air carrier operating the aircraft. Respondent was responsible for the aircraft's 

maintenance, however the maintenance was ordered. 

Moreover, the facts alleged are sufficient to support the claim that the maintenance was 

improperly conducted. The Complaint alleges that Respondent operated the aircraft on the 

flight.^^ Prior to the flight, the aircraft underwent maintenance.^"* As a result of that 

maintenance, the aircraft's spoiler servo actuators for left wing roll spoilers three and five were 

allegedly left in maintenance mode for the duration of the flight, contrary to the Airbus 

Maintenance Manual for the aircraft. Further, the aircraft's MEL allegedly proscribes 

dispatching the aircraft when two or more spoilers on either wing are in an inoperable 

condition,^^ Since both the aircraft's maintenance manual and the MEL allegedly warned against 

leaving the wing roll spoilers in maintenance mode during the flight, the Complaint alleges 

•** See id. ffl n-4, II-5, H-S, ni-(d). 

"' See Alaska Airlines, Inc., FAA Order No. 2004-8 at 5-7 (Oct 4, 2004): United Parcel Service, FAA Docket No. 

CP08SO0007, FMDS No. FAA-2008-0384, Administrative Law Judge's Initial Decision at 2 n.5 (Nov 13, 2008). 

^° See Motion to Dismiss at 1-2 (the aircraft "was sent to a repair station for overhaul before being returned to the 

lessor"). 

^' Complaint \ II-3. Respondent does not deny that it operated the aircraft on the maintenance acceptance flight and 

the Motion to Dismiss merely states that the "aircraft was flown on a maintenance acceptance flight." 

^' See Alaska Airlines, Inc., at 2,5-7. 

" Compl. 1 n-3. 

'*w.^n-4. 

" Id. MII-4 to II-6,11-12, n-13,11-15, n-16. 

'*M ^11-14. 

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sufficient facts to conclude that the maintenance was conducted contrary to the methods, 

techniques, and practices prescribed in the current manufacturer's maintenance manual, in 

violation of 14 C.F.R. § 43.13(a).^^ 

The Complaint also alleges sufficient facts to conclude that maintenance on the aircraft was 

conducted in violation of 14 C.F.R. § 43.13(b). The Complaint alleges that both the aircraft's 

MEL and the Airbus Maintenance Manual warned against dispatching the aircraft with 

inoperable wing roll spoilers.^^ The Airbus Maintenance Manual allegedly warns that "if the 

spoilers are left in the maintenance mode aerodynamic forces will caused [sic] unwanted 

movement of the spoilers."^' Moreover, the MEL allegedly wams that an aircraft may not be 

dispatched with two or more spoilers in an inoperable condition. Despite these warnings, after 

maintenance was performed on the aircraft, the aircraft was allegedly operated with four 

inoperable spoilers.^' Those alleged facts support the conclusion that Respondent did not 

perform the maintenance in such a manner that the condition of the aircraft was at least equal to 

its original or properly altered condition. 

Accordingly, Respondent's alleged violations of 14 C.F.R. § 43.13(a) and (b) are sufficiently 

pleaded in the Complaint. The motion to dismiss those claims is denied. 

B. The 14 C.F.R. §§ 121.153(a)(2) and 91.7(a) Claims 

Respondent contends that in order to violate 14 C.F.R. § 121.153(a)(2), the aircraft must 

have been operated either "(1) in an unairworthy condition or (2) in a manner that fails to meet 

the applicable airworthiness requirements o f Chapter 1 of the C.F.R. Similarly, Respondent 

"W. Mn-6,II-14. 

''Id. 

59 M^II-6. 

W. ^11-14 

M 1511-5 

^' Motion to Dismiss at 6. 

*'W.^ 11-14. 

*' M MII-5, n-12,11-13,11-15, n-16. 
contends that to violate 14 C.F.R. § 91.7(a), the aircraft must have been operated in an 

unairworthy condition. ^^ Respondent argues that those claims should be dismissed because the 

Complaint fails to describe the airworthiness standard that the aircraft failed to meet, cite a 

requirement of the aircraft's type design that die aircraft failed to meet, or describe a condition 

that made the aircraft unsafe to fly. Despite Respondent's concerns, the Complaint alleges facts 

sufficient to support a finding that that Respondent violated 14 C.F.R. §§ 121.153(a)(2) and 

91.7(a). 

The airworthiness standard is clear: "To be airworthy, an aircraft must: (1) conform to a type 

design approved imder a type certificate or supplemental type certificate and to applicable 

Airworthiness Directives; and (2) be in a condition for safe operation."^^ 

The Complaint contains facts alleging that Respondent violated both prongs of this standard. 

First, the Complaint alleges that the aircraft's condition during operation violated the aircraft's 

MEL.^^ Operating an aircraft whose instruments or equipment are not in conformity with the 

aircraft's MEL may be sufficient to deem the aircraft out of conformity with its type design.^^ 

The Complaint also contains facts alleging that the aircraft was not in a condition for safe 

operation. The Complaint alleges that during the flight. Respondent operated the aircraft with 

two left wing roll spoilers in maintenance mode, contrary to the Airbus Maintenance Manual. 

Moreover, Respondent allegedly operated the flight with a total of four inoperable wing roll 

"W. at7. 

*^W. at7,8. 

" Del. Skyways LLC, FAA Order No. 2005-6 at 2 (Mar 8, 2005); Cal. Helitech, FAA Order No. 2000-18 at 2 n.7 

(Aug 11,2000). 

** See Compl. fl 11-14,11-15. The MEL allegedly indicates that the aircraft cannot be dispatched when two or more 

spoilers on either wing are in an inoperable mode and the Complaint alleges that, during die flight, four wing roll 

spoilers (two the left wing and two on the right wing) were inoperative. 

*' See Delta Airlines, Inc., FAA Order No. 97-21 at 1 (May 28, 1997) ("It has long been the agency's position that 

without an applicable provision in the Minimum Equipment List, if an instrument or piece of equipment is 

inoperable, dien the airworthiness certificate for the akcraft is ineffective."). 

** Compl. n n-6, n-12, n-13, n-is, n-i6. 

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spoilers; and, according to the aircraft's MEL, the aircraft cannot be dispatched when two or 

more spoilers on either wing are in an inoperable condition. Finally, the Complaint alleges that 

because of the inoperable wing roll spoilers, the aircraft's left wing tip made contact with the 

runway during the aircraft's first landing attempt, causing the landing attempt to be aborted.^° 

The Complaint asserts that tlie aircraft was operated in an unairworthy condition in violation 

of 14 C.F.R. §§ 121.153(a)(2) and 91.7(a); and the facts alleged in the Complaint would support 

a conclusion that operating the aircraft with four inoperative wing roll spoilers caused the aircraft 

to be operated in an unsafe condition.^* Accordingly, Respondent's alleged violations of 14 

C.F.R. §§ 121.153(a)(2) and 91.7(a) are sufficiently pleaded in the Complaint. The motion to 

dismiss those claims is denied. 

C. More Definite Airworthiness Standard 

In the alternative. Respondent requests that we order Complainant to "state the facts and 

objective standards that support" the claims that Respondent violated 14 C.F.R. §§ 121.153(a)(2) 

and 91.7(a).^^ The Rules of Practice for FAA Civil Penalty Proceedings provide that "[a] party 

may file a motion for more definite statement of any pleading which requires a response under 

this subpart." Respondent argues that the Complaint fails to provide adequate notice of "what 

objective standards the FAA is using to judge the airworthiness condition of the aircraft."''* 

As noted above, the airworthiness standard is clear. Indeed, the Motion to Dismiss 

indicates that Respondent is aware of the airworthiness standard, stating: "The term 'airworthy' 

has been defined by the Administrator and the courts to mean that the aircraft meets its type 

*'w.Mn-i4,n-i5. 

TMW.1[ 11-17, n-18. 

^'MH[n-19,in-(a),in-(e). 

'^ Motion to Dismiss at 7, 8. 

"14C.F.R. § 13.218(f)(3). 

'" Motion to Dismiss at 7. 

" Del. Skyways LLC, FAA Order No. 2005-6 at 2 (Mar 8, 2005); Cal. Helitech, FAA Order No. 2000-18 at 2 n.7 

(Aug 11,2000). 

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design and is in a condition for safe operation."''^ Moreover, Respondent employs the 

airworthiness standard in setting out its argument that the Complaint failed to make out a prima 

facia case that Respondent violated 14 C.F.R. § 121.153(a)(2).^^ Thus, the Complaint was clear 

enough for Respondent to frame a responsive pleading, and Complainant is not required to 

provide a more definite statement of airworthiness. ^^ 

D. Complainant's Motion to Strike the Surreply 

7Q 

Respondent's Surreply contends that the standard for sufficiency in administrative 

pleadings as proposed by the Complainant in its Answer to the Motion is overly lenient. The 

Surreply also contends that FAA regulations do not hold a party liable for regulatory violations 

that were not committed by the party, and that the Complaint fails to allege that Respondent 

o 1 

performed the deficient maintenance. Finally, the Surreply argues that the Complaint only 

alleges legal conclusions unsupported by proper allegations of fact.^^ Complainant's Motion to 

Strike responds by arguing that die Surreply should be stricken because it is redundant and 

because, under 14 C.F.R. § 13.218, a surreply may not be filed in response to a Complainant's 

answer to a Respondent's motion. Respondent's Opposition to the Motion to Strike contends 

that 14 C.F.R. § 13.218 does not proscribe the Surreply and that the Surreply "is a valuable 

expansion of the record, and should be allowed in."^ 

^* Motion to Dismiss at 6 (citing Am. Air Network, Inc., FAA Order No. 2008-10 at 11 n.35 (Oct 07,2008)). 

^^ Id. (" ... the Administrator must allege that the aircraft (1) failed to meet an airworthiness requirement in the 

regulations, or (2) failed to meet the requirements of its type design, or (3) was not in a condition for safe 

operation"). 

^ See supra note 70. 

"" The Surreply refers to the Complainant as "Administrator" in this proceeding, although the Complainant is, in 

fact, the FAA Acting Regional Counsel. Since the Administrator reviews AU decisions in these proceedings, he is 

not a party in this proceeding and cannot be involved in the prosecution of this case. 

^"^ee Surreply at 1. 

*' Id. at 2 

*^W. at3. 

*^ Motion to Strike at 2. 

^ Opposition to Motion to Strike at 2. 

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The Rules of Practice for FAA Civil Penalty Proceedings provide that "[a]ny party may 

make a motion to strike any insufficient allegation or defense, or any redundant, immaterial, or 

QC 

inelevant matter in a pleading." 

In Warbelow's Air Venture, Inc., we accepted a surreply that presented arguments that 

were not made in the party's prior filings. Unlike that proceeding, the Surreply here merely 

reframes arguments Respondent made in its Motion to Dismiss. First, the Surreply contends that 

the standard for sufficiency in administrative pleadings as proposed by the Complainant in its 

R7 

Answer to the Motion to Dismiss is overly lenient. According to the Surreply, the Complaint 

RR 

must allege facts, not merely legal conclusions. This essentially reiterates Respondent's 

argument in the Motion to Dismiss that "[a]lleging legal conclusions, rather than alleging facts, 

on 

is insufficient in notice pleading." The Surreply goes on to contend that FAA regulations do 

not hold a party liable for regulatory violations that were not committed by the party and that the 

Complaint fails to allege that Respondent performed the deficient maintenance.^° This argument 

mirrors Respondent's argument in the Motion to Dismiss that the Complaint's failure to state 

facts linking the Respondent to the deficient maintenance "represents a failure to state a vital 

element in the cause of action."^' Finally, the Surreply reiterates Respondent's argument that the 

Complaint only alleges legal conclusions unsupported by proper allegations of facts.^^ Since the 

*' 14 C.F.R. § 13.218(f)(4). Cf City of Chi., FAA Docket No. CP05GL0014, DMS No. FAA-2005-22671, Order 

Denying Motion to Dismiss 1 (Feb 17, 2006) (denying Motion for Leave to File Reply to Answer, as well as 

Request for Respond to Reply to Answer, because "nothing in the Rules permits such a reply, and nothing in the 

reply convinces us that it should be received"). 

'^ See Warbelow's Air Venture, Inc., FAA Docket No. CP00AL0002, DMS No. FAA-2000-7215, Order of Chief 

Administrative Law Judge at 3 (June 14, 2005). 

^^ Surreply at 1. 

' ' Id. at 3 ("[m]erely stating the legal conclusions, without factual support, is insufficient"). 

' ' Motion to Dismiss at 3 (citing Clegg v. Cult Awareness Network, 18 F.3d 752,754-55 (9th Cir. 1994)). 

'° Surreply at 2 

" Motion to Dismiss at 4. 

'^ Surreply at 3. See Motion to Dimiss at 3-7. 

-13 -

1^ :i . 
Surreply merely reiterates arguments already presented by the Respondent in its Motion to 

Dismiss, it is redundant. Accordingly, the Motion to Strike is granted. 

III. CONCLUSION 

Accordingly, we conclude that the Complaint alleges sufficient facts and IT IS 

ORDERED THAT. 

(1) Respondent's "Partial Motion to Dismiss, and for a More Definite Statement" is 

denied; 

(2) Complainant's "Motion to Strike the Respondent's Surreply to Partial Motion to 

Dismiss, and for a More Definite Statement" is granted. 

(3) Pursuant to 14 C.F.R. § 13.218(f)(2)(ii), Respondent shall serve and file an 

answer not later than 10 days after service of this order. ^^ 

SO ORDERED. 

lie A. Yoder 

Chief Administrative Law 

Attachment - Service List 

'^ 14 C.F.R. § 13.218(f)(2)(ii) states that "[i]f the motion to dismiss is not granted, the respondent shall file an 

answer and shall serve a copy of the answer on each party not later than 10 days after service of the administrative 

law judge's ruling or order on the motion to dismiss." 

-14 -
FAA Docket No. CP09EA0007 

(Civil Penalty Action) 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000^'* 

ONE COPY 

Jason Dickstein 

Washington Aviation Group, PC, and the Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, N.W., Ste. 503 

Washington, DC 20007 

TEL: (202) 628-6776 

FAX: (202)628-8948 

David M. Cohen, Attorney 

Office of the Regional Counsel, EAL-7 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: (718) 553-3270 

FAX: (718)995-5699 

The Honorable Rormie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room E12-320 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

TEL: (202) 366-2142 

FAX: (202)366-7536 

''* Service was by U.S. Mail. For service in person or by expedited courier, use the following address: 

Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building - Suite 2W1000, 

Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430. 

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