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RE THE U.S. DEPARTMENT OF TRANSPORTATION 

e^onorable Chief Administrative Law Judge Ronnie A. Yoder 

h ^ 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines 

Respondent 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

RESPONDENT'S REPLY TO 

MOTION FOR SUMMARY 

JUDGMENT or DECISION and 

MOTION TO DISMISS 91.13(a) 

AMENDMENT TO COMPLAINT 

Comes now the Respondent, Brendan Airways, LLC d/b/a USA3000 Airlines 

[hereinafter "USA3000"] and REPLIES to the Complainant's ANSWER to the MOTION 

FOR SUMMARY JUDGMENT AND TO DISMISS and urges the Administrative Law 

Judge to dismiss all charges against the Respondent. 

I. Argument 

A. The Administrator Has Not Raised Any Material Factual 

Dispute 

In response to the Motion for Summary Judgment, the Administrator has not 

alleged that there are any disputed material issues of fact. 

The Administrator repeats the allegations of the Complaint in his Statement of the 

Facts, but offers no other evidence to support those allegations. See Complainant's 

Answer to Respondent's Motion for Summary Judgment or Decision and Motion to 

Dismiss 91.13(A) Amendment to Complaint, at 2-4 [hereinafter "FAA's MS J Answer"]. 

Although there are allegations made in the Complaint in this case, none of those 

allegations have been supported with probative evidence. As discussed in the Motion for 

Summary Judgment, where the FAA bears the ultimate burden of proof (as in this case, 

per 14 C.F.R. § 13.224(a)), the FAA has an obligation to come forward with significant 

RESPONDENT'S REPLY TO MOTION FOR 

SUMMARY JUDGMENT 

Page 1 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Diclistein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
probative evidence, and may not merely rest on the allegations of the Complaint. See 

Respondent's Motion for Summarv Judgment or Decision and Motion to Dismiss 

91.13(A) Amendment to Complaint, at 7-8. 

B. The Part 91 Claims Should Be Dismissed 

The first set of issues are the Part 91 issues, raised under 91.7(a) and 91.13(a). 

1. Alaska Airlines Was an Application of Respondeat Superior, 

But This is Not a Respondeat Superior Case 

The Administrator cites to the Alaska Airlines case and attempts to suggest that 

there is no knowledge element in an airworthiness case against an air carrier. FAA's MSJ 

Answer at 7. This is actually contrary to the Alaska Airlines decision. In the Matter of 

Alaska Airlines. FAA Order No. 2004-8,2004 FAA LEXIS 905 (FAA 2004). In that 

case the knowledge of a maintenance contractor was imputed to the air carrier (that case 

did not vitiate the knowledge element for the air carrier). Id. 

Alaska Airlines was not a 91.7 case. The allegations in that case were purely 

maintenance allegations and there was no claim of a violation of section 91.7 in that 

case. Therefore, the Administrator's reliance on that case as the basis for the proposition 

that there is no knowledge element when an air carrier is accused of a section 91.7 

violation is nonsensical. 

Alaska Airlines held that an air carrier may not look the other way in order to 

avoid the knowledge of its maintenance contractors. In fact, that case imputed the 

knowledge of the maintenance contractor (the agent) to the air carrier (the principal). 

This is a standard application of agency law, in which the principal may not escape 

respondeat superior liability for the act of the agent by claiming lack of knowledge of the 

agent's actions. 

One key element of the Alaska Airlines case is that there seemed to be no doubt 

that the maintenance contractor had done something wrong - the question was whether 

the air carrier was responsible for the actions of its agent. In the Matter of Alaska 

RESPONDENT'S REPLY TO MOTION FOR 

SUMMARY JUDGMENT 

Page 2 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
Airlines. FAA Order No. 2004-8,2004 FAA LEXIS 905 (FAA 2004), relying on In the 

Matter of Empire Airlines. FAA Order No. 2000-13 at 12-15 (June 8,2000) (holding the 

air carrier responsible for the violations of its independent contractor). 

The case at bar is quite different from the Alaska Airlines case. In this case, there 

is no allegation that any agent had the requisite knowledge to serve as the foundation for 

a section 91.7(a) violation. While in Alaska Airlines, the Administrator imputed the 

knowledge of the maintenance contractor to the air carrier, and refused to permit the air 

carrier to plead its own lack of knowledge as a defense, there is no allegation in the case 

at bar that the maintenance contractor had any knowledge to support a section 91.7(a) 

allegation, nor is there any allegation that the maintenance contractor did anything wrong. 

Thus, there was nothing to "impute" to USA 3000. 

Instead, the Administrator is seeking to avoid the knowledge element altogether in 

the case at bar. The Administrator cannot do this. The courts have made it quite clear 

that violation of 91.7(a) is an offense that has a knowledge element. 

2. The Administrator's Proposition Would Result in an 

Unexplained Departure from Prior Precedent 

The Administrator suggests that a 91.7(a) allegation has different elements, 

depending on the party against whom it is brought. In particular, the Administrator 

suggests that a 91.7(a) allegation has a knowledge element when alleged against a pilot, 

but that this element need not be proven when the same violation is alleged against an air 

carrier. FAA's MSJ Answer at 7. 

The Administrator acknowledges that it is already well-settled that section 91.7(a) 

has a knowledge element. The Administrator tries to draw a distinction, though, 

between application of 91.7(a) against pilots and application of 91.7(a) against air 

carriers. The Administrator claims that a 91.7(a) allegation does not have a knowledge 

element when raised against an air carrier. FAA's MSJ Answer at 7-8. The 

Administrator specifically states that "the standard for airworthiness violations is 

different for air carriers then [sic] it is for pilots." Id at 8. 

RESPONDENTS REPLY TO MOTION FOR 

SUMMARY JUDGMENT 

Page 3 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsm Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
This proposition is a facial violation of the Administrative Procedure's Act's bar 

against arbitrary and capricious decisions (5 U.S.C. § 706(2)(a)). There is nothing in the 

FAA's regulations to permit a distinction between application of this regulation to pilots 

as opposed to air carriers. There is nothing in either the regulations, case law, nor 

statutory law to permit such a distinction. Because the Administrator offers no 

reasonable basis for drawing a distinction between the way that the regulation is applied 

to pilots and the way that the same regulation is applied to air carriers, this distinction 

represents a departure from prior agency practice. An agency's unexplained departure 

from prior agency practice is arbitrary and capricious. E.g. Grace Healthcare v. United 

States. 589 F.3d 926, 935 (8th Cir. 2009). 

3. The 91.13 Claim Cannot be Sustained 

The Administrator claims that the 91.13(a) claim in both the Surratt case and in 

the case at bar arises as a "residual or derivative charge of the 91.7(a) claim." FAA's 

MSJ Answer at 9-10. The recognition that the 91.13(a) claim is the same in both cases 

should be enough to bring it within the scope of the collateral estoppel argument. In 

addition, though, the defenses raised by the Administrator to the Statute of Limitations 

claim has no legal weight. 

The Administrator raises two defenses against the claim that the 91.13(a) claim 

was raised after the statute of limitations had already expired. The first is that the failure 

to raise it was inadvertent on the part of the Administrator. The second is the claim that 

the failure to raise it was not prejudicial. 

A statute of limitations is just that: a statute. While there are equitable responses 

to the statute of limitations defense, "I did not mean to miss the statutory cut-off' and 

lack of prejudice are not among them. The Administrator filed a Notice, a Final Notice 

and a Complaint in this case, and none of those three documents alleged a 91.13(a) claim. 

There were plenty of opportunities to raise the allegation before the stature of limitations 

had passed; failure to do so cannot reasonably be described as inadvertent. 

The Administrator offers no analysis of prejudice - he merely supposes that there 

is no prejudice because of his analysis that the 91.13(a) claim arises as a "residual or 

RESPONDENT'S REPLY TO MOTION FOR Washington Aviation Group, PC and the 

SUMMARY JLTDGMENT Law Offices of Jason A. Dickstein 

Page 4 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
derivative charge of the 91.7(a) claim." If the 91.13(a) claim is truly synonymous with 

the 91.7(a) claim, then there is no need to raise it as an additional claim, and the 

Administrator's effort to do so is moot. But even if the Administrator's claim of lack of 

prejudice were true, lack of prejudice is not a valid counter to a statute of limitations 

defense. The Administrator is not free to waive statutory protections on a whim. Raising 

the 91.13(a) claim for the first time after the statute of limitations has already passed is 

inappropriate. 

C. The Part 43 Claims Must Be Dismissed for Failure to Be 

Sustained With Sufficient Evidence to Make-Out a Prima Facie 

Claim 

1. The Administrator Fails to Make Out a Real Issue of 

Material Fact 

Despite having had every opportunity to do so in discovery, and in response to the 

Motion for Summary Judgment, the Administrator has filed to offer any facts that might 

support a Part 43 allegation. 14 C.F.R. § 43.13 is a regulations concerning maintenance. 

The Administrator cannot point to a single maintenance operation on N265 AV in which 

the spoiler issue arose, and the Administrator's own investigation cleared AAR of any 

wrong-doing on N265AV. The Administrator even accepts that it is possible that an 

unrelated third-party performed an unrelated maintenance or non-maintenance operation 

that resulted in the spoiler issue. FAA's MSJ Answer at 12. 

The known facts are these: 

• Maintenance was performed on the aircraft; 

• The aircraft was checked on May 15th and it was confirmed that the 

spoilers were operational; 

• The spoilers were discovered in a non-operational mode (coincidentally 

called "maintenance mode") on May 17th; 

• There is no evidence of anyone putting the spoilers in maintenance mode 

on or after May 15th; 

• No one, including the Administrator, knows who placed the spoilers into 

maintenance mode, on or after May 15th; 

RESPONDENTS REPLY TO MOTION FOR 

SUMMARY JUDGMENT 

Pages 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
• No one, including the Administrator, knows how the spoilers were placed 

into maintenance mode on or after May 15th. 

There is no connection between the spoilers and any maintenance activity. 

Because the Administrator has yet to point to a single fact supporting its allegations of 

maintenance violations, the Part 43 claims should be dismissed. 

2. The Administrator Had Failed to Offer any Evidence to 

Support a Theory of the Case in Which a Maintenance Violation 

Occurred 

As discussed in the Motion for Summary Judgment, the party with the burden at 

trial cannot rest on the pleadings and survive such a motion; the party with the burden at 

trial bears a burden to come forward wdth significant probative evidence supporting his 

prima facie case. See Respondent's Motion for Summarv Judgment or Decision and 

Motion to Dismiss 91.13(A) Amendment to Complaint, at 7-8. 

In this case, the Administrator claims in the pleading that maintenance was 

performed that resulted in the spoiler issue. But the answers to discovery show that the 

Administrator cannot say for certain that the spoiler issue was the result of maintenance -

this is admittedly a mere unsubstantiated conjecture on the part of the Administrator. The 

Administrator cannot say who performed the alleged maintenance in the conjecture. The 

Administrator cannot say what alleged maintenance resulted in the spoilers issue. The 

Adminisfrator has no evidence to show a causal link between any maintenance that was 

performed by anyone and the spoiler issue. The Administrator's own investigative notes 

show that the Administrator does not have enough evidence to answer any of these 

questions. 

More importantly, in response to the challenge posed by the Motion for Summary 

Judgment, the Administrator does not offer a single shred of evidence to support its 

theory of the case - no documents, no affidavits, and no physical evidence. The 

Administrator offers nothing more than an unsupported theory that some identified 

maintenance was incorrectly performed at some unidentified time. 

RESPONDENT'S REPLY TO MOTION FOR 

SUMMARY JUDGMENT 

Page 6 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
An important distinction between this case and the Alaska Airlines case is 

that in the Alaska Airlines case, there was no dispute that the maintenance confractors 

had violated maintenance regulations. In the Matter of Alaska Airlines. FAA Order No. 

2004-8,2004 FAA LEXIS 905 (FAA 2004). In this case, on the other hand, the 

Administrator has not alleged that AAR (the maintenance contractor) violated any 

maintenance regulation. In fact, the Administrator's investigation notes make it clear that 

the FAA has no evidence of wrongdoing on the part of AAR. 

This is a critical difference between the cases because the Administrator has made 

it clear that he cannot point to any maintenance that was improperly performed in this 

case. He has made it equally clear that he cannot identify any person who improperly 

performed maintenance on N265AV. 

The Administrator is still unable to identify any improperly-performed 

maintenance; the Administrator is also unable to draw a causal link between any 

maintenance and the spoiler issue. Thus, there is no factual allegations that any 

maintenance failed to meet the 14 CFR 43.13 standards cited by the Administrator in the 

Complaint. Therefore the Administrator's claims concerning improperly-performed 

maintenance must be dismissed. 

3. The Administrator is Arguing a Part 121 Violation, not a 

Part 43 Violation 

Rather than presenting evidence of a Part 43 violation, the Administrator instead 

argues that USA 3000 has violated 14 C.F.R. § 121.363(a). E.g. FAA's MSJ Answer at 

12. Aside from a lack of evidence to support such an allegation, the Administrator has 

already withdrawn its allegations of a 14 C.F.R. § 121.363(a) violation. This claim was 

presented in the original Complaint and it was withdrawn in the First Amendment to the 

Complaint. Therefore it should not be entertained by the Court. 

The Administrator's reliance on the Alaska Airlines case as a basis for the 43.13 

claims is misplaced. The Alaska Airlines case found a violation of 14 C.F.R. § 121.363, 

which imposes respondeat-superior-Vke obligations on the air carrier with respect to 

confract maintenance. The FAA has no claimed that AAR did anything wrong, so there 

RESPONDENT'S REPLY TO MOTION FOR 

SUMMARY JUDGMENT 

Page 7 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsm Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
is no basis for holding USA 3000 responsible for the errors of AAR (whether tmder 

§43.13 or §121.363). 

The Alaska Airlines case did not address 43.13 violations. Although the FAA 

made 43.13 claims in Alaska Airlines, there was no 43.13 finding in that case (the case 

was decided as a 121.363 violation). The section 121.363 claim in the USA 3000 case is 

one of the claims that was voluntarily dismissed by the Administrator when he amended 

his Complaint, so reliance on the Alaska Airlines case is inappropriate. 

Furthermore, the Adminisfrator's position on 121.363 in the USA 3000 case 

seems to stretch the limits of interpretation. The Administrator's position seems to be an 

expanded connotation of the term "maintenance" that assumes that anything that happens 

to an aircraft is a maintenance activity and that therefore there is no need to define what 

happened ... it can merely be assumed to be a maintenance activity, no matter what it 

really was. This expanded connotation of the term "maintenance" need not be examined 

by the Court, because the expanded connotation is only applicable in the context of a 14 

C.F.R. § 121.363(a) (not a Part 43 allegation, in which the definition of maintenance is 

clear) and the 14 C.F.R. § 121.363(a) claim has already been dropped by the 

Administrator. 

Unsubstantiated claims of violation of 14 C.F.R. § 121.363(a) cannot take the 

place of substantive probative evidence supporting allegations of Part 43 violations. 

n. Conclusion 

The Part 91 claims found in the Amended Complaint have both been fully 

litigated against the pilots (who are the only relevant agents of USA 3000), and the NTSB 

found that the pilots did not violate 91.7(a) nor 91.13(a). Important factors in this finding 

were (1) the pilots' lack of knowledge about the malfimction before the aircraft took off, 

(2) the pilots' reasonable actions after obtaining knowledge of the spoiler malfunction, 

and (3) the finding that the pilots did not act recklessly or carelessly. For purposes of the 

case against USA 3000, the pilots were the only relevant agents of USA 3000 with 

respect to the Part 91 allegations against USA 3000. Under the doctrine of collateral 

RESPONDENT'S REPLY TO MOTION FOR 

SUMMARY JUDGMENT 

Pages 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 -Tel: 202-628-6776 
estoppel, the Part 91 claims have already been decided against the Adminisfrator, and 

therefore the Adminisfrator is estopped from raising the same Part 91 issues against USA 

3000. 

The Adminisfrator's claim that 14 C.F.R. § 91.7(a) has different elements 

depending on the target of the enforcement action is simply arbifrary and capricious, and 

is recipe for unraveling the doctrine of stare decisis. 

The Part 43 claims found in the Amended Complaint both assume that USA 3000 

acted through AAR in violating maintenance standards. But the Adminisfrator cannot 

point to any maintenance activity that was improperly performed, and the Administrator 

has no evidence to support the contention that the spoilers were positioned to the 

maintenance mode during a maintenance operation performed by USA 3000, by AAR, or 

by anyone else under USA 3000's direction. The two Part 43 allegations against USA 

3000 should also be dismissed because the Adminisfrator has offered no evidence of 

improper maintenance, and has offered no evidence of a causal link between any 

maintenance performed and the spoiler malfunction. 

For the reasons stated above, the four claims found in the Amended Complaint 

should be dismissed. 

RESPECTFULLY SUBMITTED this 2nd day of November, 2010. 

WASHINGTON AVIATION GROUP, PC AND THE 

LAW OFFICES OF JASON A DICKSTEIN 

Jason Dickstein 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 

Tel: (202) 628-6776 

Attorney for Respondent Brendan Airways, LLC dA)/a US A3 000 Airlines 

RESPONDENTS REPLY TO MOTION FOR 

SUMMARY JUDGMENT 

Page 9 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 - Tel: 202-628-6776 
BEFORE THE US DEPARTMENT OF TRANSPORTATION 

The Honorable Chief Administrative Law Judge Ronnie A. Yoder 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines 

Respondent 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that she caused the attached 

• REPLY TO MOTION FOR SUMMARY JUDGMENT or DECISION and 

MOTION TO DISMISS 91.13(a) AMENDMENT TO COMPLAINT 

to be filed at the addresses listed below by two-day FedEx service, on the date indicated below. 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2W1000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

And to be served on the persons at the addresses listed below by the same method as the filing 

method, on the date indicated below. 

David M. Cohen, Attorney 

Federal Aviation Adminisfration 

Office of the Regional Counsel, EAL-7 

1 Aviation Plaza 

Jamaica, NY 11434 

Tel: (718) 553-3270 

Fax:(718)995-5699 

The Honorable Roimie A. Yoder 

Chief Adminisfrative Law Judge 

Office of Hearings, M-20 

Room E12-320 

US Department of Transportation 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Tel: (202) 366-2142 

Fax: (202) 366-7536 

Katt Stanley 

November 2,2010 

Date 

CERTIFICATE OF SERVICE Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776