Jason Dickstein AdmittedinDC, NYand VA RyanAggergaard Admittedin NYonly WashingtonAviation Group, PC andthe Law Offices of JasonA. Dickstein 2233 WisconsinAvenue, NW Suite 503 Washington, DC20007

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 ofTransportation 1200 New JerseyAvenue, S.E. Washington, DC 20590

Dear Judge Sullivan: Telephone: (202) 628-6777 Facsimile: (202) 628-8948 DirectDial: (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). Atthe time ofservice 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 ofthe Motion to Dismiss was mailed to Judge Sullivan's chambers on February 27, 2012. (See attached cover letter dated February 27, 2012). Per request ofyour chambers we nowserve 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 ofthe Motion to Dismiss sent to Judge Sullivan's chambers.This is only a Courtesy Copy. It is a true and accurate copy ofthe original Motion to Dismiss thatwas 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 WilburWright Building
- Suite 2W1 000 Zachary M. Berman, Attorney Federal Aviation Administration Office ofthe Regional Counsel 1Aviation Plaza Jamaica, NY 11434 Very

### Truly Yours,

Ryan Aggergaard!.••**~**

__)j i r---'



# --- ......:

JasonDickstein Admittedin DC, NYand VA RyanAggergaard Admittedin NYonly 

### WashingtonAviation Group, PC andthe 

### Law Offices of JasonA. Dickstein 2233 WisconsinAvenue, NW Suite 

### 503 Washington, DC20007

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 ofTransportation 1200 New Jersey Avenue, S.E. Washington, DC 20590 Dear Judge Sullivan, Telephone: (202} 628·6777 Facsimile: (202) 628-8948 DirectDiol: (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 atthe Federal Aviation Administration Office ofthe Reqional Counsel in Jamaica, NewYork, also via First Class Certified Mail on February 15, 2012<

### BEFORE THEFEDERAL AVIATION ADMINISTRATION Judge Not YetAssigned



### Inthe Matter of BRENDAN AIRWAYS, LLC, ) FAADocket No. notyetassigned 

### ) 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 pursuantto 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 ofthe 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 ofthe 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 ifthe 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 ofthe 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 ofthe alleged operations specificationthat is described.

RESPONDENT USA 3000 MOTION TO DISMISS Page 1 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC20007 ·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 sufficientto establish a violation, the Complaint mustbe dismissed.

PROCEDURAL HISTORY OF THE CASE

In late 2011, USA 3000 received a Final Notice ofProposed 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. OnJanuary 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 sufficientto 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 ofthe 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 (inthis case, the alleged OpSpecthat 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 ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 ·Tel: 202-628-6776pertaining 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 ofthe rules that apply to such operations). Itwould 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 offactual 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 ifthose conclusions cannot reasonably be drawn from the facts alleged" and affirming dismissal ofcomplaint).

2. THE 141 C.F.R. 

### § 119.5(g) CLAIM IS INSUFFICIENTLY lP'LED AND MUSTBE DISMISSED

The Administrator has alleged a violation of 14 C.P.R. § ll9.5(g). That section states, in relevantpart: "(g). Noperson 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 inthis casethat USA 3000 failed to have a certificate oroperations specifications. In this case, the Administrator alleges that USA 3000 has an operations specification that requires USA 3000 to remain in compliance with the regulations related to supplemental operations. This factual allegationmustbe treated as true for purposes ofthis motion. In orderto prove the ll9.5(g) claim, there are a number ofadditional elements that would need to be proven through facts. Each ofthose elements must be supported through allegations

RESPONDENT USA 3000 MOTION TO DISMISS Page 3 Washington Aviation Group, PC andthe Law Offices ofJason A. Dickstein 2233 WisconsinA venue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776offacts 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. Ifthe 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 3000to pinthe Administrator downto 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 Administratorhas failed to do so inthe Complaint. Because ofthe 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

Ifthe case had been properly plead, then a USA 3000 defense inthis case wouldbe 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 onthe facts inorderto 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 ofJason A. Dickstein 2233 WisconsinAvenue, 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

Forthe reasons cited above, USA 3000 asks thatthe Administrative law Judge dismiss the allegation ofviolation of 

### 14 C.F.R. § 119.5(g).

RESPECTFULLY SUBMITTED this 15th day ofFebruary, 2012.

WASHINGTON AVIATION GROUP, PC AND THE LAW OFFICES OF JASON A DICKSTEIN


## \**~-----~--~** By

__

### ~~~~'+.------------~---- 1 asonDickstein Washington Aviation Group, PC and the

Law Offices ofJasonA. Dickstein 2233 WisconsinAvenue, NW, Suite 503

............................... .................... . ............ ............................................................... ....................... ..... ....... . ....... ... ............................. ...**\11faslli11gto11,P~** 

### 2QDQT Tel: (202) 628-6776 Attorney for RespondentBrendanAirways, LLC d/b/aUSA 3000 Airlines

RESPONDENTUSA 3000 MOTION TO DISMISS Page 5 Washington Aviation Gronp, PC andthe Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 ·Tel: 202-628-6776

### CERTIFICATE OF SERVICE RE: BrendanAirways, LLC, FAACaseNumber: 2011EA170024. The undersigned hereby certifies that she caused the attached 

### MOTION TO DISMISS
to befiled/served onthe persons atthe addresses listedbelowbypre-paid First Class Certified Mail, Return Receipt Requested, on the date indicated below. Federal AviationAdministration (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 AviationAdministration Office ofthe Regional Counsel 1Aviation Plaza Jamaica, NY 11434

RESPONDENTUSA 3000 MOTION TO DISMISS Page 6 Feb .15 2012

.... DateWashington Aviation Group, PC andthe Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 ·Tel: 202-628-6776

### CERTIFICATE OF SERVICE
RE: BrendanAirways, LLC, FAACaseNumber: 2011EA170024
The undersignedhereby certifies that she causedthe attached
COURTESY COPY ofMotion to Dismiss



### to befiled/served onthe persons atthe addresses listedbelowbypre-paid First Class Certified Mail, ReturnReceiptRequested, onthe date indicatedbelow.
The Honorable J.E. Sullivan, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. Washington, DC 20590
Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2Wl000 Zachary M. Berman, Attorney

···· ···························· FederalAviationAdministration Office ofthe Regional Counsel 1Aviation Plaza Jamaica, NY 11434

March8 2012 Date