r^FpARTMENlOF 

V^ANSFORT/BEraRE THE FEDERAL AVIATION ADMINISTRATION 

''wOKrJ OPLRATIONS Judge Not Yet Assigned 

) FA A Docket No. not yet assigned 

]M K^^ - '• P 2- 51 ) FAACaseNo.:2011EA170024 

In the Matter of ) 

) 

BRENDAN AIRWAYS. LLC. \ 

) MO 

Respondents 

) ft d 2 2:2012 

) HEARING DOCKET 

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 14C.F.R. § 13.218(0(1) and/or (0(2). 

SUMMARY OF THE MOTION 

The Administrator's Complaint alleges a violation of 14 C.F.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, 

operations specifications, deviation authority or exemption authority. The Complaint specifies 

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 

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

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

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

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

alleged operations specification that is described. 

RESPONDENT USA 3000 Washington Aviation Group, PC and the 

MOTION TO DISMISS Law OfTices of Jason A. Dickstein 

Page I 2233 Wisconsin Avenue. NW, Suite 503 

Washington, DC 20007 • Tei: 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.F.R. § 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 

pertaining to supplemental operations. 

1. 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. § 119.5(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 operations in accordance with the Federal Aviation Regulations 

RESPONDENT USA 3000 Washington Aviation Group, PC and the 

MOTION TO DISMISS Law Offices of Jason A. Dickstein 

Page 2 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
pertaining to supplemental operations) and must the show thai 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, e.g.. 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 14 C.F.R. § 119.5(g) CLAIM IS INSUFFICIENTLY PLED AND 

MUST BE DISMISSED 

The Administrator has alleged a violation of 14 C.F.R. § 119.5(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 

specifications... " 

In order to'prove a violation of 14 C.F.R. § 119.5(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 3000 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 119.5(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 Washington Aviation Group, PC and the 

MOTION TO DISMISS Law Offices of Jason A. Dickstein 

Page 3 2233 Wisconsin Avenue. 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) thai 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. Twombiy, 550 U.S. 544 (2007). The Administrator has failed to do so in the Complaim. 

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. 

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

3. PREJUDICIAL CONSEQUENCES OF THE 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 fiight/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 pennits 

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

RESPONDENT USA 3000 Washington Aviation Group, PC and the 

MOTION TO DISMISS Law Offices of Jason A. Dickstein 

Page 4 2233 Wisconsin Avenue. NW. Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
(which makes it exceedingly difficult to show that the FAA"s prior acquiescence 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 

/ 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 d/b/a USA 3000 Airlines 

RESPONDENT USA 3000 Washington Aviation Group, PC and the 

MOTION TO DISMISS Law Offices of Jason A. Dickstein 

Page 5 2233 Wisconsin Avenue. NW, Suite 503 

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

RE: Brendan Airwavs. LLC, FAA Case Number: 20! 1EA170024. 

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 2W1000 

Zachary M. Berinan, Attorney 

Federal Aviation Administration 

Office of the Regional Counsel 

1 Aviation Plaza 

Jamaica. NY 11434 

Feb.15. 2012 

Katt Brigham / y Date 

RESPONDENT USA 3000 Washington Aviation Group, PC and the 

MOTION TO DISMISS Law Offices of Jason A. Dickstein 

Page 6 2233 Wisconsin Avenue, NW, Suite 503 

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