'•'-'•'*'^'t-, >'!*lt'<** 

. h r Of^f^,1W<ARTMENT OF TRANSPORTATION 

FEDfiRAL AVIATION ADMINISTRATION „o\/ B /'111 

'P ;-V ('^ p /• [^ cpPFICE OF HEARINGS 

WASHINGTON, D.C. 

i '• tf ; 

In the Matter of Brendan Airways, LLC 

FAA Docket No. CP09EA0007 

DMS No. FAA-FAA-2009-0032 

Chief Administrative Law Judge Yoder 

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 

COMES NOW, the Federal Aviation Administration, (hereinafter "the 

Complainant), by and through its designated representative, the Regional Counsel for the 

Eastern Region, and his duly designated and authorized agents and moves to strike the 

Respondent's Reply to Motion For Summary Judgment or Decision and Motion to 

Dismiss 91.13(a) Amendment to Complaint (the "Respondent's Reply") in the abovecaptioned matter pursuant to 49 C.F.R. §13.218(1). 

STATEMENT OF THE CASE 

The Complainant issued a Notice of Proposed Civil Penalty to Brendan Airways, 

LLC (herein after "the Respondent") on August 21,2008. On December 22,2008, the 

Complainant issued a Final Notice of Proposed Civil Penalty and on January 2,2009, the 

Respondent submitted a written demand for a hearing. The Complainant filed a Complaint 

on January 14, 2009, and on February 12, 2009 Respondent filed a Partial Motion to 

Dismiss and For a More Defmite Statement (hereinafter "the Respondent's Partial Motion to 

Dismiss") pursuant to 14 C.F.R. §§13.218(f)(l), 13.218(f)(2), and 13.218(f)(3). On March 

12,2009, the Complainant filed Complainant's Answer to Respondent's Partial Motion to 

Dismiss. Through the Order of Chief Administrative Law Judge Ronnie A. Yoder Denying 
Respondent's Partial Motion To Dismiss The Complaint And For A More Definite 

Statement, And Granting Complainant's Motion To Strike The Respondent's Surreply 

served June 7,2010, (herein after "the Order Denying Respondent's Partial Motion To 

Dismiss"), the Respondent's Partial Motion To Dismiss was denied. On October 19,2010, 

the Complainant filed an Amended Complaint which deleted reference to Sections 

121.153(a)(2) and 121.628(a)(5) of the Federal Aviation Regulations and added Section 

91.13(a). On October 22,2010, the Respondent filed Respondent's Motion For Summary 

Judgment or Decision and Motion to Dismiss 91.13(a) and on October 28,2010 the 

Complainant filed Complainant's Answer to Respondent's Motion for Summary Judgment 

and Motion to Dismiss 91.13(a) Amendment to Complaint. On November 2,2010, the 

Respondent filed Respondent's Reply. 

ARGUMENT 

Pursuant to 14 C.F.R. 13.16(a) and (h), the exclusive source for obtaining the 

procedural rules for civil penalty actions such as the matter at hand is 14 C.F.R. Subpart G 

entitled the "Rules of Practice in FAA Civil Penalty Actions." Section §13.218 of Subpart 

G prescribes the rules for filing motions as well as the rules for answering motions. In this 

matter the Respondent filed a Motion on October 22, 2010, that was answered by the 

Complainant on October 28,2010, and the Respondent then filed Respondent's Reply in 

reply to the Complainant's answer to Respondent's Motion. Neither Section §13.218, nor 

any other part of Subpart G, make reference to replies such as the Respondent's Reply in 

this matter. As Subpart G does not contemplate the moving party filing a reply to a 

nonmoving party's answer the Respondent's Reply should be stricken as redundant. 
Furthermore, the Respondent's reply does not present any new arguments that were 

not made in the party's prior filings. Instead the Respondent's Reply merely responds to the 

arguments made by the Complainant in the Complainant's October 28,2010 Answer to 

Respondent's Motion For Summary Judgment Motion. Therefore, the Respondent's Reply 

should be stricken. 

However, if the Respondent's Reply is not deemed to be stricken the Complainant 

responds to the arguments made in the Respondent's Reply as follows. Although 

Respondent argues in Respondent's Reply that Alaska Airiines was not a §91.7 case the 

Respondent apparently fails to realize that Section 121.153(a)(2) of the FAR (which similar 

to §91.7(a) prohibits operation of unairworthy aircraft) was alleged in Aleiska Airlines. 

Therefore, as a violation of § 121.153(a) was found in Alaska Airlines, and as the standard 

for proving a violation of §121.153(a) is no different then the standard for a finding of 

violation of §91.7(a), a violation of §91.7(a) is appropriate in this case as well. Further the 

basis for a different standard for violations of §91.7(a) for pilots and for air carriers should 

be very obvious. Air carriers are responsible for the maintenance of the aircraft that they 

operate and pilots are not. 

The Respondent states that "in Alaska Airlines, the [Complainant] imputed the 

knowledge of the maintenance contractor to the air carrier." This assertion, however, is not 

supported by any of the verbiage in the Alaska Airlines decision. In fact the knowledge of 

the maintenance contractor of the violations is irrelevant to the determination in that case 

and the only factor that is relevant is that air carriers are primarily responsible for all 

maintenance performed on their aircraft. 
The Respondent fiirther contends that the Complainant has argued that the 

Respondent violated §121.363(a) even though the Complainant has withdrawn its allegation 

of that regulation. For the record the Complainant has never argued that the Respondent 

violated §121.363(a), which is not a regulation that is capable of being violated, and the 

Complainant has thusly never withdrawn an allegation of § 121.363(a). Respondent fiarther 

contends that the Alaska Airlines case found a violation of §121.363 which is also not true 

because that Section was not alleged as again it is one that cannot be violated. Finally, 

Respondent states that Alaska Airlines did not address §43.13 violations which is also 

untrue. Based on the holding in Alaska Airlines the carrier was found to have violated 

§43.13(a) as well as § 121.153(a)(2). For these reasons based on the precedent set forth in 

Alaska Airlines the Respondent's Motion for Summary Judgment should be denied. 
WHEREFORE the Complainant respectfiilly requests that the Respondent's Reply be 

stricken and/or in the alternative that the Complainant's response to Respondent's Reply 

be considered. 

Respectfiilly submitted, 

Alfi-ed R. Johnson, Jr. 

Regional Counsel 

By: 1^ ^ Lj y O^ ^ [ ^ Date 

David M. Cohen 

Attomey 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

Telephone: 718 553-3270 

Facsimile: (718)995-5699 

: /)/^// 0 
CERTIFICATE OF SERVICE 

I hereby certify that on this day copies of the foregoing Complainant's Motion to Strike 

Respondent's Reply were sent by Federal Express Mail and by Facsimile addressed as 

follows: 

(FEDERAL EXPRESS ONLY) 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - 2W1000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

(FEDERAL EXPRESS AND FACSIMILE) 

Jason Dickstein 

Washington Aviation Group, PC & Law Offices of Jason Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 

(FAX) 202-628-8948 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

RoomE12-320 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

(FAX) 202-366-7536 

NOV - 5 2010 

Date: 

L i ^ Hooks 

Paralegal Specialist 

Office of Acting Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

f:i