Jason Dickstein 

Admitted in DC, NY and VA 

Ryan Aggergaard 

Admitted in NY only 

Washington Aviation Group, PC 

and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW 

Suite 503 

Washington, DC 20007 

March 8, 2012 

Courtesy Copy via First Class Certified Mail 

Return Receipt Requested 

The Honorable J.E. Sullivan, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

Dear Judge Sullivan: 

Telephone: (202) 628-6777 

Facsimile: (202) 628-8948 

Direct Dial: (202) 628-8947 

ryan@washingtonaviation.com 

RECEIVED 

MAR 1 ~ 2012 

HEARING DOCKET 

Please find enclosed a Courtesy Copy of Respondent's Motion to Dismiss in the Matter 

of Brendan Airways, LLC, FAA Case No. 2011EA170024. 

The original Motion to Dismiss was timely served on the Federal Aviation Administration 

Hearing Docket Clerk and attorney Zachary M. Berman at the Federal Aviation 

:AdministrationOfficeonFieRe9ionarcounseTfnJamaTca,NewYork,viaFirsfClass 

Certified Mail, Return Receipt Requested, on February 15, 2012 (see attached 

Certificate of Service dated February 15, 2012). At the time of service the case had not 

yet been assigned to a judge. 

On February 23, 2012 the case was assigned to the Honorable J.E. Sullivan. A 

Courtesy Copy of the Motion to Dismiss was mailed to Judge Sullivan's chambers on 

February 27, 2012. (See attached cover letter dated February 27, 2012). 

Per request of your chambers we now serve on all parties a Courtesy Copy of (1) the 

original Motion to Dismiss served on February 15, 2012, and (2) the February 27, 2012 

cover letter that accompanied the Courtesy Copy of the Motion to Dismiss sent to Judge 

Sullivan's chambers. 
This is only a Courtesy Copy. It is a true and accurate copy of the original Motion to 

Dismiss that was timely served on February 15, 2012, and a true and accurate copy of 

the cover letter sent to Judge Sullivan's chambers on February 27, 2012. No action is 

required in response to this Courtesy Copy. 

CC: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1 000 

Zachary M. Berman, Attorney 

Federal Aviation Administration 

Office of the Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

Very Truly Yours, 

Ryan Aggergaard 
!. •• ~ 

__ )j i r---' 

--- ......: 

Jason Dickstein 

Admitted in DC, NY and VA 

Ryan Aggergaard 

Admitted in NY only 

Washington Aviation Group, PC 

and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW 

Suite 503 

Washington, DC 20007 

February 27, 2012 

Courtesy Copy via First Class Mail 

The Honorable J .E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

Dear Judge Sullivan, 

Telephone: (202} 628·6777 

Facsimile: (202) 628-8948 

Direct Diol: (202) 628·8947 

ryan@washingtonaviation.com 

Please find enclosed a courtesy copy of Respondent's Motion to Dismiss in the Matter 

of Brendan Aif\lllays, LLC, FAA Case No. 2011 EA170024. This Motion was filed with 

the Federal Aviation Administration via First Class Certified Mai! on February 15, 2012. 

A copy was served on Zachary M. Berman at the Federal Aviation Administration Office 

of the Reqional Counsel in Jamaica, New York, also via First Class Certified Mail on 

February 15, 2012< 
BEFORE THE FEDERAL AVIATION ADMINISTRATION 

Judge Not Yet Assigned 

In the Matter of 

BRENDAN AIRWAYS, LLC, 

) FAA Docket No. not yet assigned 

) FAA Case No.: 2011EA170024 

) 

) 

) 

) MOTION TO DISMISS 

Respondentj 

) 

) 

Comes now the Respondent, Brendan Airways, LLC d/b/a USA 3000 Airlines 

[hereinafter "USA 3000"] and moves for dismissal of the Administrator's Complaint in this 

matter pursuant to 14 C.P.R. § 13.218(£)(1) and/or (f)(2). 

SUMMARY OF THE MOTION 

The Administrator's Complaint alleges a violation of 14 C.P.R. § 119.5(g). USA 3000 

brings this Motion to Dismiss on the basis of the Administrator's failure to allege facts sufficient 

to establish a violation of § 119.5(g), even when taken in the light most favorable to the 

Administrator. 

Section 119.5(g) forbids an air carrier from operating in violation of its certificate, 

QJ2"'J'!tiQns sp"cificll1ions, deYi_atiQ!lauthorityorexemption_authoriLy. TheComp1aintspecifit:& 

that the operations specifications require compliance with the federal aviation regulations 

concerning supplemental operations, but there are missing elements from the allegations of the 

Complaint. The Complaint fails to state a regulation that was infringed, so there is an insufficient 

basis to claim that this operations specification was infringed. Second, even if the complaint had 

a1leged a specific regulatory violation concerning supplemental operations, the complaint fails to 

a1lege that the operations in question were subject to the flight crew duty time and rest provisions 

of the supplementa1 operations (because the Administrator knows that they were not). Thus, the 

facts in the Administrator's Complaint fail to a1lege sufficient facts to show a violation of the 

alleged operations specification that is described. 

RESPONDENT USA 3000 

MOTION TO DISMISS 

Page 1 

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 
The Administrator does not allege facts in its Complaint sufficient to show a violation of 

§ 119.5(g). Because the Administrator failed to allege facts sufficient to establish a violation, the 

Complaint must be dismissed. 

PROCEDURAL HISTORY OF THE CASE 

In late 2011, USA 3000 received a Final Notice of Proposed Civil Penalty from the FAA 

proposing a civil penalty in the amount of $37,000. On December 27, 2011 USA 3000 

submitted a written demand for a hearing. On January 17, 2012 the FAA filed the Complaint in 

this case. The FAA alleged a violation of 14 C.FR § 119.5(g). USA 3000 now submits this 

Motion to Dismiss on the grounds that the FAA has failed to allege facts sufficient to establish a 

violation of§ 119.5(g). 

I. MOTION TO DISMISS 

There is only one claim raised in this case. The Administrator claims that USA 3000 

violated 14 C.F.R. § 119.5(g) by failing to conduct its supplemental operations in accordance 

with an operations specification that requires compliance with the Federal Aviation Regulations 

.... .. pertainingto.supplerm~ntal--operations. 

L APPLICABLE STANDARDS 

In order to be sufficient in the face of a motion to dismiss, a claim must make out 

allegations supporting each of the elements of the cause of action that is alleged. The factual 

allegations of the complaint, even if read the facts alleged in a light most favorable to the 

Administrator, fail to allege the basic elements of the violation that the Administrator has 

asserted. 

In order to prove a violation of 14 C.F.R. § ll9.5(g) in this particular case, the 

Administrator must allege a standard (in this case, the alleged OpSpec that requires USA 3000 to 

conduct its supplemental 

RESPONDENT USA 3000 

MOTION TO DISMISS 

Page2 

operations in accordance with the Federal Aviation Regulations 

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 
pertaining to supplemental operations) and must the show that the standard was infringed (by 

alleging facts that show that there were supplemental operations, and by alleging a specific 

infringement of the rules that apply to such operations). 

It would be inappropriate for the Court to read the allegation USA 3000 failed to adhere 

to Federal Aviation Regulations pertaining to supplemental operations in violation of§ 119.5(g) 

as standing in lieu of factual allegations, because the Administrator has not alleged any specific 

regulation was violated. Alleging legal conclusions, rather than alleging facts, is insufficient in 

notice pleading. See, ~' Clegg v. Cult Awareness Network, 18 F.3d 752, 754-55 (9th Cir. 

1994) (explaining that "the court is not required to accept legal conclusions cast in the form of 

factual allegations if those conclusions cannot reasonably be drawn from the facts alleged" and 

affirming dismissal of complaint). 

2. THE 141 C.F.R. § 119.5(g) CLAIM IS INSUFFICIENTLY lP'LED AND 

MUST BE DISMISSED 

The Administrator has alleged a violation of 14 C.P.R. § ll9.5(g). That section states, in 

relevant part: 

"(g). No person may operate as a direct air carrier or as a commercial operator without, 

or in violation of, an appropriate certificate and appropriate operations 

In order to prove a violation of 14 C.F.R. § ll9.5(g), the Administrator must show that 

USA 3000 operated without, or in violation of, appropriate operations specifications. There is no 

allegation in this case that USA 3000 failed to have a certificate or operations specifications. 

In this case, the Administrator alleges that USA 3 000 has an operations specification that 

requires USA 3000 to remain in compliance with the regulations related to supplemental 

operations. This factual allegation must be treated as true for purposes of this motion. 

In order to prove the ll9.5(g) claim, there are a number of additional elements that would 

need to be proven through facts. Each of those elements must be supported through allegations 

RESPONDENT USA 3000 

MOTION TO DISMISS 

Page 3 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 WisconsinA venue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
of facts in order for the complaint to be sufficient. There are elements that are missing support 

from the factual allegations. 

The Administrator has failed to allege any Federal Aviation Regulation related to 

supplemental operations that (1) applied to the transportation in question and (2) that was 

infringed. Instead, the Administrator states a set of facts related to crew rest without 

acknowledging the FAA's prior acquiescence to the use of Flag and Domestic Operations 

standards for USA 3000's supplemental operations. If the Administrator claims that an OpSpec 

requiring compliance was infringed, then the Administrator must also state the applicable noncompliance, otherwise the case remains "a moving target" and it becomes impossible for USA 

3000 to pin the Administrator down to a specific claim. 

The Administrator is obliged to offer "more than labels and conclusions," Bell Atlantic 

Corp. v. Twombly, 550 U.S. 544 (2007). The Administrator has failed to do so in the Complaint. 

Because of the missing facts, the Administrator has failed to plead sufficient facts that 

allow the court to "draw the reasonable inference that the defendant is liable for the misconduct 

alleged." See Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 556 (2007)). 

3. J>REJUDKCIAL CONSEQUENCES OF Hffi INSUFFICIENCY 

If the case had been properly plead, then a USA 3000 defense in this case would be likely 

to be that the FAA had previously acquiesced to the use of Flag and Domestic Operations 

standards for flight/duty time and rest requirements. The FAA had acknowledged this in their 

acceptance letters (and the FAA is permitted to allow such a reliance on the Flag and Domestic 

Operations rules under 119.12(a)(3)). 

USA 3000's supplemental operations were consistent with the applicable standards. If 

the FAA had properly plead its complaint, then it would simple for USA 3000 to file a 

dispositive motion on the facts in order to have this case summarily decided. 

The Administrator's failure to properly plead sufficient facts to support the claim permits 

the Administrator to avoid a dispositive motion by refusing to commit to a specific allegation 

RESPONDENT USA 3000 

MOTION TO DISMISS 

Page4 

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 
(which makes it exceedingly difficult to show that the FAA''s pnor acqmescence was 

applicable). 

Thus, the Administrator's failure to properly plead this complaint is prejudicial to the 

Respondent, USA 3000. 

II. CONCLUSION 

For the reasons cited above, USA 3000 asks that the Administrative law Judge dismiss the 

allegation of violation of 14 C.F.R. § 119.5(g). 

RESPECTFULLY SUBMITTED this 15th day of February, 2012. 

WASHINGTON AVIATION GROUP, PC AND THE 

LAW OFFICES OF JASON A DICKSTEIN 

\ ~-----~--~ 

By __ ~~~~'+.------------~---- 1 ason Dickstein 

Washington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

........................ ... .... .................. .. . ... ......... .............. .... ................................... ..... ..... . ........... ... . ....... .. ... ... .. .. . . .. . .. . . .. .. . ...................... .... . .. \11faslli11gto11,P~ 2QDQT 

Tel: (202) 628-6776 

Attorney for Respondent Brendan Airways, LLC d/b/a USA 3000 Airlines 

RESPONDENT USA 3000 

MOTION TO DISMISS 

Page 5 

Washington Aviation Gronp, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 ·Tel: 202-628-6776 
CERTIFICATE OF SERVICE 

RE: Brendan Airways, LLC, FAA Case Number: 20 11EA170024. 

The undersigned hereby certifies that she caused the attached 

MOTION TO DISMISS 

to be filed/served on the persons at the addresses listed below by pre-paid First Class Certified 

Mail, Return Receipt Requested, on the date indicated below. 

Federal Aviation Administration (original and one copy) 

800 Independence Avenue, SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl000 

Zachary M. Berman, Attorney 

Federal Aviation Administration 

Office of the Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

RESPONDENT USA 3000 

MOTION TO DISMISS 

Page 6 

Feb .15 2012 

.... DateWashington Aviation Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 ·Tel: 202-628-6776 
CERTIFICATE OF SERVICE 

RE: Brendan Airways, LLC, FAA Case Number: 2011EA170024 

The undersigned hereby certifies that she caused the attached 

COURTESY COPY of Motion to Dismiss 

to be filed/served on the persons at the addresses listed below by pre-paid First Class Certified 

Mail, Return Receipt Requested, on the date indicated below. 

The Honorable J.E. Sullivan, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Zachary M. Berman, Attorney 

· ··· ···························· FederalAviationAdministration 

Office of the Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

March8 2012 

Date