^'•*^ . Iv^^^'t* 

] : ''. ^ ' |jna-A-.- 15.CJ 

^rf-ARTMENT OF 

' ;)'^f$pPQ|^ U.S. DEPARTMENT OF TRANSPORTATION 

" Thb ^dndYhdie Chief Administrative Law Judge Ronnie A. Y^^^r 

a:C !'!:•'/ ! '3 P |: us 1 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d^D/a USA3000 Airlines 

Respondent 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

RESPONDENT'S ANSWER TO 

COMPLAINANT'S MOTION TO 

STRIKE THE RESPONDENT'S REPLY 

TO MOTION FOR SUMMARY 

JUDGMENT or DECISION and 

MOTION TO DISMISS 91.13(a) 

AMENDMENT TO COMPLAINT 

Conies now the Respondent, Brendan Airways, LLC d/b/a US A3 000 Airlines 

[hereinafter "USA3000"] and ANSWERS the Complainant's MOTION TO STRIKE that 

it served on November 5, 2010. 

I. Argument 

A, The FAA's Procedural Rules Are Not Exclusive 

The Administrator claims that 14 C.F.R. § 13.16(a) and (h) state that the exclusive 

source of procedures is found in Subpart G. Motion to Strike at 2. This is simply false. 

There is no statement concerning the exclusive source of procedures in either of those 

subsections. See 14 C.F.R. § 13.16(a) and (h). 

The federal courts have never held that federal statements of procedure are 

exclusive . In fact, for over two hvmdred years. Congress has recognized that federla law 

is incomplete, and Congress has specified that federal courts will borrow state laws when 

federal law does not address the issue on point. 28 U.S.C. § 1652. It is a norm of state 

law that the moving party in siunmary judgment may respond to the new theories raised 

by the non-moving party. 

RESPONDENT'S ANSWER TO THE MOTION TO 

STRIKE 

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 
B. Forbidding Replies in Dispositive Motions Would Permit the 

Non-Moving Party an Unfair Advantage 

The traditional model for dispositive motions is: 

• the moving party files a dispositive motion, 

• the non-moving party files an answer to the dispositive motion, and 

• the moving party files a reply to the dispositive answer. 

The reason for the structure of this model is because the moving party bears the 

burden of persuasion in the motion, and it is possible (and likely) that the non-moving 

party will raise a novel objection to the dispositive motion. Such legal theories often defy 

prior discovery, because discovery is limited to facts and not legal theories. 

If the non-moving party raises a previously-undisclosed legal objection to the 

dispositive motion, then the moving party is required to respond to it or risk a default 

judgment on the theory. Thus, the reply brief is the standard mechanism used to permit 

the moving party to respond. This is also the reason that the scope of the reply brief is 

generally limited only to matters addressed in the non-moving party's answer. 

It would not have been reasonable for USA 3000 to anticipate that the 

Administrator would argue that a 91.7 allegation has different elements, depending on the 

party against whom the charge is raised. Such an allegation is contrary to the traditional 

notion of stare decisis. Thus, it would not have been reasonable for USA 3000 to address 

such a claim in its initial motion (among the myriad other specious claims that could be 

raised). Nonetheless, USA 3000 must respond to this novel claim, or risk an adverse 

judgment in favor of the Administrator for failure to respond. 

C. No Surreply is Permitted 

The Administrator uses the Motion to Strike as a vehicle to file a surreply to the 

Reply. The Administrator has not sought permission to file a surreply. Instead, the 

Administrator insists on being permitted to respond to the Reply if the Reply is not 

stricken. Motion to Strike at 3 (explaining that the Administrator is responding to the 

RESPONDENT'S ANSWER TO THE MOTION TO Washington Aviation Group, PC and the 

STRIKE Law Offices of Jason A. Dickstein 

Page 2 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
Reply); see Motion to Strike at 3-4 (text of the Administrator's surreply). This is a 

surreply. 

The Administrator admits that the Reply was limited in scope to the matters raised 

by the Administrator in the Answer. Answer at 3. Because there are no new issues 

rasied in the Reply, the Administartor should not be permitted to file a surreply. 

II. Conclusion 

The Administrator claimed that USA 3000 violated 14 C.F.R. § 91.7. Such a 

violation has always carried a knowledge element. No previous case has disputed that 

knowledge is an element. For the first time, in his Answer to the Motion for Summary 

Judgment, the Administrator raises the claim that knowledge is not an element of 91.7 

when a section 91.7 allegation is raised against certain parties (the exact scope of when 

knowledge is or is not an element of 91.7 claims would be a mystery to be deduced for 

each individual respondent imder the government's theory). As a matter of fundamental 

fairness, USA 3000 is entitled to offer a response to this novel theory. 

The traditional structure of dispositive motions - in which the moving party is 

entitled to a Reply brief to respond to issues raised for the first time in the Answer to the 

Motion - permits a fair opportunity to respond to novel legal theories. If the Court finds 

that reply briefs are not in order, then it would be possible for a non-movant to always 

defeat a dispositive motion by simply raising a new legal theory, that the movant had not 

anticipated. No matter how specious, the new legal theory would stand unopposed in 

such a scenario. 

This sort of process would make dispositive motions entirely ineffective because 

it would not be possible to completely address arguments that could not be supported; 

and matters that should not go forward to trial could nonetheless go to trial on specious 

arguments. This would be a waste of judicial resources. 

USA 3000 therefore asks that the Administrative Law Judge deny the FAA's 

Motion to Strike, and grant USA 3000's Motion for Summary Judgment. To the extent 

RESPONDENT'S ANSWER TO THE MOTION TO Washington Aviation Group, PC and the 

STRIKE Law Offices of Jason A. Dickstein 

Page 3 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
that the Motion to Strike is really a cleverly-camouflaged surreply, USA 3000 asks that 

the Administrator's surreply be set-aside. 

RESPECTFULLY SUBMITTED this 7th 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 d/b/a USA3000 Airlines 

RESPONDENT'S ANSWER TO THE MOTION TO Washington Aviation Group, PC and the 

STRIKE Law Offices of Jason A. Dickstein 

Page 4 2233 Wisconsin Avenue, NW, Suite 503 

Washmgton, DC 20007 • Tel: 202-628-6776 
" ^ f*"-^ z:'^-; 

BEFORE THE US DEPARTMENT OF TRANSPORTATION 

The Honorable Chief Administrative Law Judge Ronnie A. YQ^^r 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d^/a USA3000 Airlines 

Respondent 

DMS No.: FAA-2009-0035 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

CERTIFICATE OF SERVICE 

•K\ 

The undersigned hereby certifies that she caused the attached 

• RESPONDENT'S ANSWER TO COMPLAINANT'S MOTION TO STRIKE 

THE RESPONDENT'S 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 Administration 

Office of the Regional Coimsel, EAL-7 

1 Aviation Plaza 

Jamaica, NY 11434 

Tel: (718) 553-3270 

Fax:(718)995-5699 

The Honorable Roimie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room El2-320 

US Department of Transportation 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Tel: (202) 366-2142 

Fax: (202) 366-7536 

Katt Stanley 

Novembers. 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