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BEFORE THE UNITED STATES DEPARTMENT OF TRANSPORTATION . -' 

IN THE MATTER OF 

BRENDAN AIRWAYS, LLC, 

Respondent. 

FAA investigation No.; 2009EA700361 

FAA Docket No.: unassigned — L P lCQ/\OC0f 

DMSNo. FAA-2010-unassigned ^i^u-) D/IQ O 

RESPONDENTS' MOTIOIS TO DISMISS 

FOR INSUFFICIENCY 

Judge Not Vet Assigned 

Pursuant to 14 C.F.R. § 13.218(f)(1), Brendan Airway.s, LLC d^/a USA 3000 

[hereinafter "USA 3000"] respectfully moves to dismiss the above-captioned matter on 

the grounds that the complaint, if read in a light most favorable to the AdministratQi:, fails 

to state sufficient facts to support an allegation of violation, "" • -

SUMMARY OF THE ARGUMENT 'n %o ^ 

m-P m 

The Administrator has alleged (1) violation of the regulation that specifies that hazrnat ^o O 

employees must be trained and tested before performing regulated haTmat functions? and^ 

(2) violation of the regulation that specifies what the training must consist of and how it 

must be recorded. 

The Administrator has failed to allege that any individual in this case is a hazmat 

employee.' The Administrator has also failed to allege facts that could lead one to the 

logical conclusion that any individual in this case is a hazmat employee. 

Because there are no hazmat employees in this case, the regulations requiring training, 

testing, and training records for hazmat employees do not apply to anyone in this case. 

Thus, this case must be dismissed. 

' This Is nol merely a harmless omission: none of the persons mentioned in Lhis case are hazmat employees. 

Maitcr or Brendan Airways, Ll.C I WiL<ihin|^on Aviacion Group. PC 

Motion 10 DiiiinLs.-; 2233 Wisconsin Avenue, Sle 503 

Wushingion, DC 20007 

(202)628-6777 
10/05/201 0 15:5 0 FAX 2024935142 FAA + DMS @1002/011 

ARGUMENT 

The Administrator has alleged violations of several regulations under title 49. Each of 

these regulations applies only to a hazmat employer. Thus, one proposition that must be 

proven in this case is that USA 3000 is a hazmat employer. Each of the regulations 

allegedly violated also concerns the training of a hazmat employee. Thus, another 

proposition that must be proven in this case is that each of the persons described in the 

complaint is a hazmat employee. 

1. The Administrator Has Failed to Allege Facts to 

Support Important Element of the Administrator's 

Case 

a. The Administrator has Failed to Allege that Any Person 

in this Case are Hazmat Employees 

The Administrator claims that USA 3000 has violated hazmat training regulations (49 

C F.R. §§ 172.702-704). The Administrator mentions three persons in this case (Tecarez 

Cook, Clayne Currle and Lowell Thorngard) but carefully avoids the allegation that any 

of these persons are hazmat employees. 

Each of those violations alleged in this case applies to training and training records for 

hazmat employees; but the Administrator has failed to allege that any individual in this 

case is a hazmat employee, and has furthermore failed to allege facts supporting a 

conclusion that they anyone in this case is a hazmat employee. 

The term "hazmat employee" is defined in 49 C.F.R. § 171.8, as follows: 

Hazmat employee means; 

(1) A person vvho is: 

(i) Employed on a full-time, part time, or temporary basis by a 

hazmat employer and who in the course of such full time, part time 

Mailer of Brendan Airways. LLC 2 Washingnon Aviaiion Group, PC 

Morion to Dismii;!: 22.^.1 Wiixoni^in Avenue, Ste SdJ 

Washingloii, DC 20007 

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or temporary employment directly affects hazardous materials 

transportation safety; 

(ii) Self-employed (including an owner-operator of a motor 

vehicle, vessel, or aircraft) transporting hazardous materials in 

commerce who in the course of such self-employment directly 

affects hazardous materials transportation safety; 

(iii) A railroad signalman; or 

(iv) A railroad maintenance-of-way employee. 

(2) This term includes an individual, employed on a full time, pari lime, or 

temporary basis by a hazmat employer, or who is self-employed, who 

during the course of employment: 

(i) Loads, unloads, or handles hazardous materials; 

(ii) Designs, manufactures, fabricates, inspects, marks, maintains, 

reconditions, repairs, or tests a package, container or packaging 

component that is represented, marked, certified, or sold as 

qualified for use in transporting hazardous material in commerce. 

(iii) Prepares hazardous materials for transportation; 

(iv) Is responsible for safety of transporting hazardous materials; 

(v) Operates a vehicle used to transport hazardous materials. 

The Administrator has failed to allege any facts supporting the proposition that Tecarez 

Cook, Clayne Currle or Lowell Thorngard (the three ASIG employees mentioned in the 

Complaint) are hazmat employees. 

• The Administrator has not alleged that any of these persons directly affect 

hazardous materials transportation safety. 

• The Administrator has not alleged that these persons are railroad signalmen. 

• The Administrator has not alleged that these persons arc railroad maintenance-ofway employees. 

The only fact offered by the Administrator about the work performed by these three 

individuals is that they performed ground handling duties for USA 3000 at BWI. 

Complaint at 6. "Ground handling duties" is not among the tasks that causes a per5;on to 

be considered a hazmat employee under litle 49 of the regulations, and there is nothing 

intrinsic to ground handling duties that would cause these duties to be considered to be a 

function covered under the hazardous materials rules subchapter of Title 49. 

Loading, unloading, or handling of hazardous materials is among the list of tasks that can 

render someone a hazmat employee but merely performing "ground handling duties" does 

Mailer or Brendan Airwsys, LLC 3 Washington Aviation (jroup, PC 

Moiion 10 Dismiss 2233 Wisconsin Avenue, Sie 503 

Wa.'Jhineton, nC 20007 

(202) 628-6777 
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not mean that these individuals arc handling hazardous materials (especially for a carrier 

that does not carry hazmat, like USA 3000) and there is NO allegation (nor facts to 

support such an allegation) in the Complaint that any of these three persons ever loaded, 

unloaded or handled hazardous materials. 

Moreover, the Administrator has failed to even make the bald allegation that Tecarez 

Cook, Clayne Currle or Lowell Thorngard are hazmat employees. This important fiict is 

simply elided from the Complaint. 

The claims in this case are brought under five paragraphs of 49 C.F.R. §§ 172.702 and 

172,704. All five must fail because of the failure to allege that anyone is a hazmat 

employee. 

* Section 172.702(a) requires hazmat employers to train their hazmat employees. 

There is no allegation in the complaint that anyone is a hazmat employee. Thus, 

this claim must be dismissed. 

Section 172.702(b) precludes hazmat employees from performing any function 

subject to the regulations of subchapter A (Hazardous Materials And Oil 

Transportation) unless the hazmat employee has first been trained. There is no 

allegation in the complaint that anyone is a hazmat employee. ITius, this claim 

must be dismissed as inapplicable to the facts alleged. 

• Section 172.702(d) requires hazmat employers to test their hazmat employees. 

There is no allegation in the complaint that anyone is a hazmat employee. Thus, 

this claim must be dismissed. 

• Section 172.704(a)( 1) requires hazmat employee training to include general 

awareness training. There is no allegation in the complaint that anyone is a 

Mairer of Brenrlan Airways, LLC 4 Washinglon Aviwion Group, PC 

Motion 10 Dismiss 2233 Wisconsin Avenue, .Sle 50J 

Wiuhington, DC 20007 

(202)628-5777 
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hazmat employee. Thus, this claim must be dismissed as it describes training that 

does not apply to any person described in this Complaint. 

• Section 172.704(d) requires the hazmat employer to create a record of training for 

each hazmat employee. There is no allegation in the complaint that anyone is a 

hazmat employee. Thus, this claim must be dismissed as it describes records that 

do not apply to any person described in this Complaint. 

Thus, even if you consider all of the facts alleged by the Administrator in a light most 

favorable to the Administrator, you are still left with no facts nor allegations that anyone 

in this case is a hazmat employee. Under the Twomblv standard, mere notice pleading is 

insufficient if the pleading omits factual allegations to support each required elements of 

the complaint. See, infra, section 2(b) (discussing the way that Twomblv has influenced 

pleading requirements in any court subject to the appellate jurisdiction of the United 

States Supreme Court), Having failed to allege facts supporting the proposition thai 

anyone is a hazmat employee, and having failed to even baldly allege the conclusion that 

anyone in this case is a hazmat employee, the Administrator has failed to meet the 

minimum standards for pleading this case. Therefore, the matter must be dismissed for 

insufficiency. 

b. The Administrator has Failed to Allege any Facts 

Supporting the Proposition that USA 3000 is a Hazmat 

Employer 

Additionally, the Administrator has failed to allege any facts supporting the proposition 

that USA 3000 is a hazmat employer. There is a bald allegation of this legal conclusion, 

but there are no facts to support such a conclusion. 

Hazmai employer mean.s: 

(1) A person who employs or uses at least one hazmat employee on a fulltime, part time, or temporary basis; and who: 

Maner of Brendan Airways, LLC 5 Wajihingron Aviation Group, PC 

Morion lo Dismis.s 2233 Wisconsin Avenue. Sie 503 

Washineron, DC 20007 

(202) r.2g-6777 
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(i) Transports hazardous materials in commerce; 

(ii) Causes hazardous materials to be transported in commerce; or 

(iii) Designs, manufactures, fabricates, inspects, marks, maintains, 

reconditions, repairs or tests a package, container, or packaging 

component that is represented, marked, certified, or sold by that 

person as qualified for use in transporting hazardous materials in 

commerce; 

(2) A person who is self-employed (including an owner-operator of a 

motor vehicle, ve.s.sel, or aircraft) transporting materials in commerce; and 

who: 

(i) Transports hazardous materials in commerce; 

(ii) Causes hazardous materials to be transported in commerce; or 

(iii) Designs, manufactures, fabricates, inspects, marks, maintains, 

reconditions, repairs or tests a package, container, or packaging 

component that is represented, marked, certified, or sold by that 

person as qualified for use in transporting hazardous materials in 

commerce; or 

(3) A department, agency, or instrumentality of the United States 

Government, or an authority of a State, political subdivision of a State, or 

an Indian tribe; and who: 

(i) Transports hazardous materials in commerce; 

(ii) Causes hazardous materials to be transported in commerce; or 

(iii) Designs, manufactures, fabricates, inspects, marks, maintains, 

reconditions, repairs or tests a package, container, or packaging 

component that is represented, marked, certified, or sold by that 

person as qualified for use in transporting hazardous materials in 

commerce. 

Only item (1) of the hazmat employer definition would apply to USA 3000, because USA 

300 is neither an individual nor an instrumentality of a government. Under item (1) of 

the regulatory definition, USA 3000 is only a hazmat employer if it (1) transports 

hazardous materials In commerce, or (ii) Causes hazardous materials to be transported in 

commerce, or (iii) manufactures, repairs or tests hazardous materials packaging. There 

are no allegations in the complaint that USA 3000 has done any of these things. 

As discussed in section two of this Argument, infra, the court should not accept the 

Administrator's legal conclusions in lieu of factual allegations, and should not treat legal 

conclusions cast in the guise of factual allegations as if they were really factual 

allegations. Under the Twomblv standard, mere notice pleading is insufficient if the 

pleading omits factual allegations to support each required elements of the complaint. 

Mancr or Brendan Airu'ays. LLC 6 WiKhington Aviation Group, PC 

Morion ro Dismiss 2233 Wisconsin Avenue, Sie 503 

Washinglon, DC 20007 

(202) 62S-6777 
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See, infra, section 2(b) (discussing the way that Twomblv has influenced pleading 

requirements in any court subject to the appellate jurisdiction of the United States 

Supreme Court). Therefore, the matter must be dismissed for lack of facts supporting the 

notion that USA3000 is a hazmat employer. 

2. The Failure to Allege Facts in This Case ShouU Result 

in Dismissal 

a. USA3000 is Prejudiced by these Failures 

The failure to allege that anyone is a hazmat employee, and the failure to allege facts 

supporting a conclusion that USA 3000 is a hazmat employer, prejudice USA 3000 in 

that USA 3000 cannot mount a reasonable defense against the Administrator's claims 

when the factual basis of the claims has not even been alleged by the Administrator. 

b. Twombly Has Established a Higher Standard for 

Pleadings 

The Administrator may claim that ihe notice pleading standard permits a mere allegation 

of the offense, without any factual basis. If this were true, then it would render a motion 

to dismiss for insufficiency meaningless, because mere recitation of a regulation that was 

allegedly violated would be enough to prevent dismissal. No regulation should be read to 

be meaningless, so it would be inappropriate to claim that "notice pleading" permits the 

Administrator to elide factual allegations concerning essential elements of the case. 

Furthermore, recent the Supreme Court decision in the Twomblv case has shed new light 

on pleading requirements, and has made it clear that "a formulaic recitation of the 

elements of a cause of action will not do." Bell Atlantic v. Twomblv. 550 U.S. 554, 555 

(2007). 

Mailer of Brendan Airtvay.s LLC 7 WiLshin^LCn Avinlion Croup, PC 

Motion 10 Dismiss 2233 Wisconsin Avenue, Ste 503 

Wushingion, LC 20007 

(202) 628-6777 
10/05/201 0 15:5 1 FAX 2024935142 FAA + DMS [gOOS/OII 

In Bell Atlantic v. Twomblv. the Supreme Court overturned Conlev v. Gibson's very 

liberal notice pleading standard and held that a pleading must allege sufficient facts to 

support a plausibility of wrongdoing. In practice, this means that the complaint must 

allege facts supporting each clement of the each cause of action. 

In Twomblv, the Court explained that a party's obligation to describe the grounds for 

entitlement to relief in a pleading "requires more than labels and conclusions, and a 

formulaic recitation of the elements of a cause of action will not do" Bell Atlantic v. 

Twomblv. 550 U.S. 554, 555 (2007), relying on Paoasan v. Allain, 478 U.S. 265,286 

(1986). The Court stated that "[f]actual allegations must be enough to raise a right lo 

relief above the speculative level." Bell Atlantic v. Twomblv. 550 U.S. 554, 555 (2007) 

relying on 5 C, Wright & A. Miller, Federal Practice and Procedure § 1216, pp 235-236 

(3d ed, 2004). As a consequence, the Court concluded that a "pleading must contain 

something more . .. than .. . a statement of facts that merely creates a suspicion [of] a 

legally cognizable right of action." Bell Atlantic v. Twomblv. 550 U.S. 554, 555 (2007) 

[ellipses in the original]. 

In the case at bar, this means that merely alleging the legal conclusion that USA 3000 is a 

hazmat employer is in.sufficient in the absence of a single allegation of fact that would 

support such a legal conclusion. 

More importantly, it also means that the failure to allege any facts supporting a 

conclusion that there are any hazmai employees in this case (combined with the failure to 

even allege the legal conclusion) renders it impossible, under the facts alleged, to 

conclude that there is a violation of either of the regulations alleged to have been violated 

in this case (49 C.F.R. §§ 172.702 and 172.704), This is because both of these regulations 

apply in relation to hazmat employees (requiring training, testing and records of training 

for hazmat employees), and there are no allegations that anyone in this case is a hazmat 

employee. 

Mancrof Brendan Airways. LLC S Washingron Aviarion Group, FC: 

Moiion lu Dismi:s.s 2233 Wisconsin Avenue, Sle 503 

Washington, DC 20007 

(202) 6.28.6777 
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c. Dismissal is the Appropriate Remedy 

The fact that there is an allegation, in the list of violations, of two regulations that apply 

to hazmat employees is insufficient, alone, to support a complaint concerning those two 

regulations. The burden rests on the Administrator to plead facts supporting the elements 

of the regulations that are alleged to have been violated. 

On a motion for dismissal, there mu.st be facts to support each element of each allegation 

of violation, or else the allegation of violation must be dismissed. E.g. Torch Liquidating 

Trust v. Stockstill, 561 F.3d 377, 384 (5th Cir. 2009) (dismissal is proper if the complaint 

lacks a factual allegation regarding a required element). A statement of facts that merely 

creates a suspicion of violation is insufficient. Rg^ Rios v. City of Del Rio, 444 F.3d 

417,421 (5th Cir. 2006). The court should not "conjure up" factual allegations that have 

not been pled. Goolev v. Mobil Oil Corp.. 851 F.2d 513, 514 (1st Cir. 1988). There is a 

difference between legal conclusions and factual allegations, and the Court does not need 

to treat legal conclusions as if they were factual allegations. E.g. Marceau v. Blackfeet 

Rous. Auth.. 540 F.3d 916, 919 (9th Cir. 2008) ("We need not assume the truth of legal 

conclusions cast in the form of factual allegations"). 

As previously discussed, the two regulations that are alleged to have been violated (49 

C.F.R. §§ 172.702 and 172.704), each apply only to training of hazmat employees. They 

do not apply to training of persons who are not hazmat employees. Thus, the failure to 

allege that anyone in this case is a hazmat employee means that an essential element of 

each of the causes of action has not been pled and therefore dismissal is proper. 

Matter ofBrenclan Airways, LLC 9 Wu.>;hinelon AviMion Group, CC 

Moiion to Dismiss 2233 Wifcon-iin Avenue, Sie 503 

Washington. DC 20007 

(202) .52«-6777 
10/05/201 0 15:5 1 FAX 2024935142 FAA + DMS 0010/01 1 

CONCLUSION 

Even if all of the allegations in this complaint were true, the Administrator has failed to 

allege the conclusion that these three persons were hazmat employees, has failed to allege 

facts supporting a conclusion that these three persons were hazmat employees. The 

Administrator has also failed to allege facts supporting a conclusion that USA 3000 is a 

hazmat employer. In light of the fact that there are no allegations of facts to support the 

elements of the regulatory violations alleged in this case, this matter must be dismissed. 

I'womblv expressed the proposition thai a mere formulaic recitation of ihe elements of a 

cause of action is insufficient in the complaint - this Complaint does not even feature a 

mere formulaic recitation. Merely stating the regulation that is allegedly violated is 

insufficient to establish facts that support a plausibility of wrongdoing under the 

Twombly -Standard. Thu.s, the case at bar must be dismissed. 

RESPECTFULLY SUBMITTED this 23rd day of September, 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, Ste 503 

Wa.shington, DC 20007 

Tel; (202) 628-6776 

Fax: (202) 628-8948 

j ason(^washingtonaviation,com 

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

Mauer of Brendan Airways, LLC 10 Washington Aviation Group, PC 

Morion to Dismiss 2233 Wisconsin Avenue, Sle 503 

Wa.5liington, DC 20007 

(202) 62.8-6777 
10/05/201 0 15:5 1 FAX 2024935142 FAA •> DM S 0011/01 1 

CERTIFICATE OF SERVICE 

RE: In the Matter of Brendan Airwavs. LLC (Complaint served Sept 2, 2010, FAA 

Docket Number Not Yet Assigned). 

The undersigned hereby certifies thai she caused the attached MOTION TO DISMISS to 

be filed, at the following location, by Fedex Two-Day Service, on the date indicated 

below; 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW. 

Wilbur Wright Building - Room 2 W1000 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

And served on the persons at the addresses listed below by Fedex Two-Day Service, on 

the date indicated below. 

Jeanine Gotimer, Attorney 

Federal Aviation Administration 

Oflfice of the Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

TEL: (718) 553-3272 

FAX: (718) 995-5699 

i^^¥^i^ . 

Katt Brigham Date 

Msfrer of Brendan Airu'ays, l.I.C 

Cenificaie of Service 

Wa<Jiington Aviation Croup. PC 

2233 Wisconsin Avenue, Ste 503 

Wa-shingron, DC 20007 

(202) ^20-6777