U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL A VIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

--------------------------------~~--------~~, 

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 FOR DECISION 

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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 hereby moves for 

Summary Judgment in the above-captioned matter pursuant to 49 C.F.R. §13.218(f)(5). 

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 14,20091

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

Dismiss and For a More Definite 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 Surreplr 

I Attached as Exhibit 1. 

2 Attached as Exhibit 2. 

1 

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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 June 15,2010, the 

Respondent filed an Answer to the Complaint and on June 22, 20 I 0 the Complainant issued 

a Discovery Request. On July 22, 20 I 0, the Respondent filed its Response to 

Complainant's First Set Of Interrogatories, Request For Admissions, And Request For 

Production of Documents3 

• On August 31, 2010, the Respondent filed an Amended Answer 

to the Complaint4 and on October 19, 2010, the Complainant filed an Amended Complaint5

• 

On October 22, 2010, the Respondent filed a Motion For Summary Judgment or Decision 

and Motion to Dismiss 91.13(a) Amendment to Complaint6

. Accompanying this Motion is 

the Declaration of Joe Miller? 

STATEMENT OF UNDISPUTED MATERIAL FACTS 

1. Brendan Airways, LLC (the Respondent) is the holder of Air Carrier 

Certificate No. U30A762J. (Respondent's Amended Answer Response to 

paragraph lI(l) of the Complaint See Exhibits 1 and 4) 

2. The Respondent is authorized to conduct operations under Part 121 of the 

Federal Aviation Regulations (FAR). (Respondent's Amended Answer 

Response to paragraph lI(2) of the Complaint See Exhibits 1 and 4) 

3. Prior to April 2008, the Respondent had been operating an Airbus A320-

212, (the aircraft) identification number N26SAV. (See Exhibit 7 

Declaration of Joseph Miller). 

4. On or about May 17, 2008, the Respondent operated the aircraft on a flight 

that took off and landed at Miami International Airport, Florida. 

(Respondent's Amended Answer Response to Paragraph lI(3) of the 

Complaint See Exhibits 1 and 4) 

S. The aircraft was owned by International Lease Finance Corporation (ILFC). 

(See Exhibit 7 Declaration of Joseph Miller). 

3 Attached as Exhibit 3. 

4 Attached as Exhibit 4. 

5 Attached as Exhibit 5. 

6 Attached as Exhibit 6. 

7 Attached as Exhibit 7. 

2 
6. The aircraft was leased by ILFC to the Respondent. (Declaration of Joseph 

Miller See Exhibit 7). 

7. During the Spring of 2008, the lease on the aircraft was coming to an end, so 

the Respondent hired AAR Corp to perform lease-end heavy maintenance on 

the aircraft in order to be able to return it to the lessor at the end ofthe lease. 

(Declaration of Joseph Miller See Exhibit 7). 

8. The maintenance on the aircraft at AAR took place during April 2008 and 

May 2008. (Declaration of Joseph Miller See Exhibit 7). 

9. Pursuant to the terms of Respondent's lease with ILFC the aircraft was 

required to be repainted before the aircraft left the Respondent's possession. 

(Respondent's response to the Complainant's Request For Admissions, 

Request No. 19 See Exhibit 3) 

10. Prior to the flight the livery of the aircraft's new lessee (State Transport 

Company Russia) was painted on the aircraft. (Respondent's response to 

the Complainant's Request For Admissions, Request No. 18 See Exhibit 

3) 

11. At the time of the flight the aircraft was on the Respondent's operations 

specifications. (Respondent's response to the Complainant's Request For 

Admissions, Request No. 12 See Exhibit 3) 

12. The Respondent exercised operational control over the flight. 

(Respondent's response to the Complainant's Request For Admissions, 

Request No. 13 See Exhibit 3) 

13. Prior to the flight, the aircraft's spoiler servo actuators for left wing roll 

spoilers three and five were placed in the maintenance mode. (Respondent's 

Amended Answer Response to paragraph II(4) of the Complaint See 

Exhibit 1 and 4) 

14. During the flight, the aircraft's spoiler servo actuators for left wing roll 

spoilers three and five were in the maintenance mode. (Respondent's 

response to the Complainant's Request For Admissions, Request No.1 

See Exhibit 3) 

15. Pursuant to the Airbus Maintenance Manual for this aircraft if the spoilers 

are left in the maintenance mode aerodynamic forces will cause unwanted 

movement of the spoiler. (Respondent's Amended Answer Response to 

Paragraph II(6) of the Complaint See Exhibit 1 and 4» 

16. When the aircraft's spoiler servo actuators for left wing roll spoilers three 

and five are in the maintenance mode the symmetrical spoiler surfaces three 

and five are inoperative. (Respondent's response to the Complainant's 

Request For Admissions, Request No.5 See Exhibit 3) 

3 
17. Pursuant to the aircraft's Minimum Equipment List (MEL) the aircraft 

cannot be dispatched when two pair of symmetrical spoiler surfaces three 

and five are inoperative. (Respondent's response to the Complainant's 

Request For Admissions, Request No.6 of the Complaint See Exhibit 3) 

STANDARD FOR SU1v11v1ARY JUDGMENT 

The Department of Transportation is not required to provide a hearing if there are 

no disputed material issues of fact. Matter of ABG Caulking Contractors, Inc. DMS 

No. F AA-2005-22888. (2006) citing Pennsylvania v. Riley, 84 F.3d 125, 130 (3d Cir. 

1996). An evidentiary hearing before an administrative law judge need not be conducted if 

all material issues of fact can be adequately resolved on the basis of the written record 

before the agency. ABO supra citing Knott v. FERC, 386 F.3d 368 (lst Cir. 2004); Delta 

Air Lines v. Department of Transportation, 51 F.3d 1065 (D.C. Cir. 1995). 

Under the Ru1es of Practice governing this proceeding, a party may make a 

motion for decision regarding all or any part of the proceedings at any time before the 

administrative law judge has issued an initial decision in the proceedings. 14 C.F.R. § 

13.218(f)(5). The Ru1es say that the administrative law judge shall grant a party's motion 

for decision if the pleadings, depositions, answers to interrogatories, admissions, matters 

that the administrative law judge has officially noticed, or evidence introduced during the 

hearing show that there is no genuine issue of material fact and that the party making the 

motion is entitled to a decision as a matter of law. Id. The party making the motion for 

decision has the burden of showing that there is no genuine and disputed issue of material 

fact. Id. ABO supra 

Motions for decision, are analogous to motions for summary judgment under Rule 

56 of the Federal Ru1es of Civil Procedure (FRCP). ABO supra citing Horizon Air 

4 
Industries, Inc" FAA Order No. 96-24, at 6 n.3 (Aug. 13, 1996). The standard for deciding 

a summary judgment motion under the FRCP is governed by the Supreme Court's opinion 

in Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548, 91 L.Ed.2d 265 (1986): 

In our view, the plain language of Rule 56(c) mandates the entry of summary 

judgment, after adequate time for discovery and upon motion, against a party 

who fails to make a showing sufficient to establish the existence of an element 

essential to that party's case, and on which that party will bear the burden of 

proof at trial. In such a situation, there can be no "genuine issue as to any 

material fact," since a complete failure of proof concerning an essential element 

of the nonmoving party's case necessarily renders all other facts immaterial. 

On a motion for summary judgment, all evidence and inferences are to be viewed in the 

light most favorable to nonmoving party; however, a nonmoving party may not rest upon 

mere denials or allegations in pleadings, but must set forth specific facts sufficient to raise 

genuine issue for trial. ABG supra citing Citizens State Bank of Big Lake v. Transamerica 

Ins. Co., 815 F.Supp. 309 CD.Minn. 1993). 

STATEMENT OF THE ISSUES 

I. Whether Any Genuine Issue Of Material Fact Exists As To Whether the 

Respondent Violated 14 C.F.R. §§91.7(a)? 

TI. Whether Any Genuine Issue Of Material Fact Exists As To Whether the 

Respondent Violated 14 C.F.R. §§91.13(a)? 

TIl. Whether Any Genuine Issue Of Material Fact Exists As To Whether the 

Respondent Violated 14 C.F.R. §§43.13(a) and 43.13(b)? 

IV. Whether The Respondent Should Be Assessed A Civil Penalty of $15,000? 

ARGUMENT 

1. Based On The Undisputed Facts The Respondent Violated 14 C.F.R. §§91.7(a) As 

Alleged In The Complaint 

5 
In the Amended Complaint the Administrator alleged that the Respondent 

operated an Airbus A320-212, identification number N265AV, (herein after "the aircraft") 

while the aircraft was in an unairworthy condition during a May 17, 2008 flight in which the 

aircraft took off and landed at Miami International Airport, Florida, (herein after "the 

flight"l It is not in dispute in this matter that the Respondent operated the aircraft on or 

about May 17, 2008, on a flight that took off and landed at Miami International Airport, 

Florida9

• Additionally, the following facts concerning the airworthiness of the aircraft 

during the flight are not in dispute: I) prior to the flight, the aircraft's spoiler servo 

actuators for left wing roll spoilers three and five were placed in the maintenance model 0; 2) 

during the flight, the aircraft's spoiler servo actuators for left wing roll spoilers three and 

five were in the maintenance modell; 3) pursuant to the Airbus Maintenance Manual for 

this aircraft if the spoilers are left in the maintenance mode aerodynamic forces will cause 

IlIl:wanted movement of the spoilerl2; 4) when the aircraft's spoiler servo actuators for left 

wing roll spoilers three and five are in the maintenance mode the symmetrical spoiler 

surfaces three and five are inoperativel3 ; and 5) pursuant to the aircraft's Minimum 

Equipment List (MEL) the aircraft cannot be dispatched when two pair of symmetrical 

spoiler surfaces three and five are inoperativel4. 

In order to prove that the Respondent operated the aircraft in an unairworthy 

condition during the flight, in violation of Section 91.7(a), the Complainant must 

8 Amended Complaint paragraph II (3), and paragraph II (19) See Exhibit 5 

9 Declaration ofJoseph Miller See Exhibit 7; Respondent's Amended Answer Response to Paragraph 11(3). 

See Exhibits I and 4. 

10 Respondent's Amended Answer Response to paragraph II(4) See Exhibits 1 and 4. 

II Respondent's response to the Complainant's Request For Admissions, Request No.1. See Exhibit 3. 

12 Respondent's Amended Answer Response to Paragraph II(6) See Exhibits 1 and 4. 

13 Respondent's response to the Complainant's Request For Admissions, Request No.5. See Exhibit 3. 

14 Respondent's response to the Complainant's Request For Admissions, Request No.6. See Exhibit 3. 

6 
demonstrate that the aircraft was operated while it either: (1) does not conform to a type 

design approved under a type certificate or supplemental type certificate and to applicable 

airworthiness directives; and/or (2) is not in a condition for safe operation. In the Matter 

of Delta Airlines, Inc., FAA Order No. 97-21 at 1 (May 28,1997) citing In the Matter of 

Watts Agricultural Aviation, d/b/a Growers Air Service, FAA Order No. 91-8 (April 11, 

1991), review denied, Watts Agricultural Aviation v. FAA, reported as table case at 977 

F.2d 594 (9th Cir. 1992). 

Regarding the first prong of the airworthiness test it has long been the 

Complainant's position that without an applicable provision in the Minimum Equipment 

List (MEL), if an instrument or piece of equipment is inoperable, then the airworthiness 

certificate for the aircraft is ineffective. Delta supra at 1. In the instant matter it is not in 

dispute that both pair of the aircraft's symmetrical spoiler surfaces 3 and 5 were 

inoperable and that pursuant to the air carrier's MEL the aircraft carmot be dispatched 

when symmetrical spoiler surfaces 3 and 5 are inoperable. Thus, due to the inoperable 

status of the aircraft's aforementioned spoiler surfaces the aircraft's airworthiness 

certificate is ineffective. 

Regarding the second prong, based on the undisputed facts the aircraft was 

operated in an unsafe condition during the flight because as stated above pursuanUo the 

aircraft's MEL the aircraft carmot be dispatched when two pair of symmetrical spoiler 

surfaces 3 and 5 are inoperable. For these reasons there is no genuine issue of material 

fact or law as to whether the Respondent operated the aircraft in an unairworthy 

condition. 

7 
Based on NTSB case law involving certificate actions against pilots concerning 

allegations of Section 91.7(a) the Respondent has previously argued that in order to be 

found in violation of Section 91.7(a) the Complainant must demonstrate that the 

Respondent knew or should have known that the aircraft was unairworthyl5. However, 

unlike cases against pilots, in proving a violation of 14 C.F.R. §91.7(a) against an air 

carrier the Complainant need not demonstrate that the air carrier knew or should have 

known that the aircraft they operated was unairworthy. This precedent was set forth in 

Alaska Airlines, IncI6., FAA Order No. 2004-8 (October 4, 2004). In Alaska Airlines, 

Inc., an air carrier was held to be not responsible for the maintenance deficiencies 

performed by its independent contractors, and the unairworthy flights that resulted from 

these deficiencies, because the airline neither knew nor had reason to know of the 

maintenance deficiencies 17 . On appeal, however the Administrator reversed. As stated in 

th,e Administrator's decision in Alaska Airlines, Inc. 14 C.F.R. §121.363 "does not allow 

air carriers to evade their primary responsibilities by delegating their maintenance 

obligations to third partiesl8 ," It is further stated in the decision that "there are strong 

public policy reasons supporting holding air carriers responsible for the performance of 

maintenance by their independent contractors. A holding that lack of knowledge alone 

exempts air carriers from responsibility could provide air carriers with incentive to look 

the other way and avoid ail knowledge of maintenance improprietiesI9." Thus, pursuant 

15 See Exhibit 6, 

16 Pursuant to the Administrator's Decision and Order In Alaska Airlines lnc" the carrier was found in 

violation of § 121.153(a)(2), which is the equivalent of §91.7(a), except that it is specific to Part 121 

operations. 

1 FAA Docket Nos. CP02NM001, CP02NM0002, and CP02NM0003, FDMS Nos. FAA-2002-1141I, 

11412, and 11413, Order Granting Respondent's Motion for Decision at 3 (Jan 10, 2003). 

18 Id. at 6. 

19 Id at 7. 

8 
to Alaska Airlines the standard for airworthiness violations is different for air carriers20 

then it is for pilots. Therefore, as stated above, there is no genuine issue of material fact 

as to whether the Respondent operated the aircraft in an unairworthy condition and 

pursuant to the applicable case precedent the Respondent should be found in violation of 

Section 91.7(a). 

II. Based On The Undisputed Facts The Respondent Violated 14 C.F.R. §91.13(a) As 

Alleged In The Complaint 

Ample legal authority exists indicating that absent extraordinary circumstances, 

careless or reckless operation follows as a residual violation once operation of an 

unairworthy aircraft is established. In The Matter of Ace Pilot Training. FAA Order No. 

2005-12 at 5 (August 15, 2005) citing In the Matter of US Air. Inc .. FAA Order No. 1992-

70 at 6 (December 21, 1992). For this reason as it has already been demonstrated that the 

Respondent operated the aircraft while it was in an unairworthy condition it follows that 

Respondent should be found in violation of 14 C.F.R. §91.13(a) as a residual violation of 

14 C.F.R. §91.7(a). 

III. Based On The Undisputed Facts The Respondent Violated 14 C.F.R. 

§§43.13(a) and 43. 13 (b) As Alleged In The Complaint 

Through allegations 4 through 8 of Count II in the Complaint, as well as paragraph 

(a) and (b) of Count III, the Complainant alleges that the Respondent performed improper 

maintenance on the aircraft in violation of sections 43.13(a) and 43.l3(b). Specifically, it 

is alleged that: 1) prior to the flight, maintenance was performed on the aircraft in which 

20 Incidentally, besides air carriers the Complainant does not need to prove that a Respondent knew or 

should have known that an aircraft was unairworthy in order to establish a violation of Section 91.7(a) for 

owners and operators of aircraft. Specifically, similar to Section 121.563, pursuant to 14 C.F.R. §91.403 

"the owner of operator of an aircraft is primarily responsible for maintaining that aircraft in an airworthy 

condition." See In The Matter of Ace Pilot Training. FAA Order No. 2005-12 (August IS, 2005). 

9 
the spoiler servo actuators for left wing roll spoilers three and five were placed in the 

maintenance mode; and 2) subsequent to the aforementioned maintenance these spoiler 

servo actuators were not returned to the operational mode prior to the flight. 

As stated above, the Respondent has admitted that: 1) prior to the flight the spoiler 

servo actuators for left wing roll spoilers three and five were placed in the maintenance 

mode21

; 2) these spoiler servo actuators were not returned to the operational mode prior 

to the flight22

; and 3) during the flight these spoiler servo actuators were in the 

maintenance mode23. 

The Respondent has also stated: "we have never claimed that the placement of left 

wing roll spoilers three and five in the maintenance mode was not part of any 

maintenance performed on the aircraft ... Our contention is that the placement of left wing 

roll spoilers three and five in the maintenance mode was not part of any maintenance that 

w!ls ordered by, or within the control of, USA 3000 [Brendan Airways]24. Additionally, 

the Respondent has admitted that it exercised operational control over the flight in 

question25 . 

Notwithstanding the Respondent's contentions it has already been determined in 

the Order Denying Respondent's Partial Motion To Dismiss, and thus is the law of this 

case, that "as the air carrier operating the aircraft, Respondent was responsible for the 

21 See the response to paragraph II(4) of the Amended Complaint in Respondent's Amended Answer. See 

Exhibits I and 4. 

22 See the Respondent's Response To Complainant's First Set onnterrogatories, Request For Admissions, 

and Request For Production of Documents, Response To Interrogatories, Response No. 13. See Exhibit 3. 

23 See the Respondent's Response To Complainant's First Set of Interrogatories, Request For Admissions, 

and Request For Production of Documents, Response To Request For Admissions, Response No.1. See 

Exhibit 3. 

24 See the Respondent's Response To Complainant's First Set oflnterrogatories, Request For Admissions, 

and Request For Production of Documents, Response To Interrogatories, Response No. 13. See Exhibit 3. 

25 See the Respondent's Response To Complainant's First Set of Interrogatories, Request For Admissions, 

and Request For Production of Documents, Request For Admissions, Response No. 13. See Exhibit 3. 

10 
aircraft's maintenance, however the maintenance was ordered26". In any event, pursuant 

to Alaska Airlines and § l21.363( a) the Respondent is primarily responsible for the 

performance of maintenance on its aircraft. It does not matter who ordered the 

maintenance, who performed the maintenance, or whether the Respondent had control 

over the maintenance. Quite simply, pursuant to §121.363 the Respondent is responsible 

for all maintenance performed on the aircraft no matter what the circumstances. 

The Respondent has argued that because the Complainant cannot prove that 

independent contractor AAR performed the improper maintenance the §43.13(a) and (b) 

claims must be dismissed27• However, pursuant to § l21.363(a) an air carrier's 

responsibility for maintenance is not limited to responsibility over the maintenance 

performed by independent contractors who perform maintenance under their direction. 

Pursuant to this section an air carrier is responsible for any and all maintenance 

performed on their aircraft by any party, regardless if the party is acting as their 

independent contractor or not, and regardless of whether or not the party is performing 

maintenance under their direction or not. 

The Respondent has also argued that the spoilers could have been placed in the 

maintenance mode by non-maintenance personnel at the airport through a nonmaintenance activity, or during maintenance performed under the orders of the aircraft's 

owner, and/or the new lessee of the aircraft, or by vandals28. However, the Respondent 

offers no evidence to indicate that the spoilers were placed in the maintenance mode by 

non-maintenance personnel at the airport or by vandals. In fact in the Declaration of 

Joseph Miller, the Respondent's Director of Maintenance, Mr. Miller states that he 

26 Order Denying Respondent's Partial Motion To Dismiss at 8. See Exhibit 2. 

27 Respondent's Summary Judgment Motion at 25. See Exhibit 6. 

28 Respondent's Motion For Summary Judgment Page 22. See Exhibit 6. 

11 
believes but cannot prove that the spoilers were placed in the maintenance mode by 

painters who painted the livery [of the new lessee] between May 15th and 17'h29. 

Therefore, it is Respondent's belief that the spoilers were placed in the maintenance 

mode during a maintenance operation and as stated earlier the Respondent is primarily 

responsible for all maintenance performed on the aircraft. 

Finally, strong public policy reasons support holding air carriers responsible for the 

improper performance of maintenance on their aircraft whether or not the air carrier has 

knowledge of how or when the improper maintenance was performed or by who. Such a 

holding could provide incentive for air carriers and independent contractors to make it 

difficult to determine how and when the improper maintenance occurred in order to 

shield themselves against potential enforcement action. The result could be an avenue 

through which air carriers could unburden themselves of their ~tatutory duty to provide 

service with the highest possible degree of safety in the public interest. For these 

reasons, in keeping with the precedent set in Alaska Airlines, the Respondent should be 

found in violation of Sections 43. 13(a) and 43.13(b) of the FAR 

IV. The Respondent Should Be Assessed A Civil Penalty of$15,000 

Through the Amended Complaint the Complainant has sought a Civil Penalty of 

$15,000 against the Respondent. Pursuant to FAA Order 2150.3B, Appendix B, Table of 

Sanctions the first step in determining the appropriate sanction for the Respondent is 

determining whether Respondent is a large business concern or a small business concern30. 

As the Respondent performs scheduled passenger and cargo operations and has less than 

29 See The Declaration of Joe Miller paragraph 40 attached as Exhibit 7. 

30 See Exhibit 8 Page B-2 ofthe Table of Sanctions. 

12 
1,500 employees31 pursuant to page B-2 of Appendix B the Respondent is a small business 

concern32. The next step in the process is to determine what Group of air carrier the 

Respondent falls under pursuant to page B-3 of Appendix B33. As Respondent is a Part 121 

carrier with an annual operating revenue of more than $100,000,00034 it is considered a 

Group I air carrie25

. Pursuant to page B-3 of the Table of Sanctions the penalty range for 

Group I air carrier small business concerns for violations covered under 49 U.S.C. 

§46301(a)(5)(a) (such as Sections 91.7(a) and 43. 1 3 (a)) is: 

Maximum 

Moderate 

Minimum 

$8,250-$11 ,000 

$4,400-$8249 

$935-$384936 

The next step is to determine what the applicable sanction guidance is for air carriers 

that perform improper maintenance and operate aircraft in an unairworthy condition. 

Pursuant to Figure B-l-h on page B_1337 of the Table of Sanctions the applicable civil 

penalty for failure to perform or improper maintenance is Moderate to Maximum. 

Pursuant to Figure B-I-I(2) page B_1438 of the Table of Sanctions the applicable civil 

penalty for nonconformity to type certificate that may have, or has, adverse effect on safe 

31 See Exhibit 9 VIS Air Operator Profile 

32 Although the Respondent has not admitted that it is a small business concern the evidence in the 

possession of the FAA indicates that it is a small business concern and it is unlikely that the Respondent 

will contest this evidence because if it were found that the Respondent were a large business concern then 

pursuant to FAA Order 2150.3B's Table of Sanctions a higher sanction would be appropriate in this case. 

33 See Exhibit 10 Page B-3 of the Table of Sanctions. 

34 See Exhibit I I Airline Quarterly Financial Review for USA 3000 Airlines (the Exhibit only contains the 

relevant pages of the review). 

35 Although the Respondent has not admitted that it has an annual operating revenue of more than 

$100,000,000 (at the time of the violation) judicial notice should be taken ofthe information derived from 

the Airline Quarterly Financial Review which is publicly available via the internet. To access the full 

report for the First Quarter of 2009 you can use the following link. 

http://ostpxweb.dot.gov/aviationifinance/nat0903p.pdf 

36 See Exhibit 10 Page B-3 of the Table of Sanctions. 

37 See Exhibit 12 Page B-13 of the Table of Sanctions. 

38 See Exhibit 13 Page B-14 of the Table of Sanctions. 

13 
operation is Moderate to Maximum. Based on the above, pursuant to FAA Order 

2150.3B's Table of Sanctions, the appropriate range of sanction for the Respondent's 

performance of improper maintenance and operation of an unairworthy aircraft is 

between $4,400-$11,000 for each of these offenses. In coming up with the sanction of 

$15,000 the Complainant used the methodology of $7,500 for each ofthe two offenses. 

An administrative agency is entitled to substantial deference in assessing the civil 

penalty appropriate for a violation of its regulations. In the Matter of Folsom' s Air 

Service Inc. FAA Order No. 2008-11 Footnote 23 (November 6, 2008) citing NL 

Industries, Inc., v. Dep't of Transp., 901 F.2d 141, 144 (D.C. Cir. 1990). A court will not 

reverse an agency's sanction determination unless it is unwarranted in law or without 

justification in fact. Given that the Complainant's proposed sanction of $7,500 for each 

of the two applicable offenses in this case is below the mid range of the Complainant's 

sap.ction guidance for each of these two offenses it cannot be said that the Complainant's 

sanction determination is unwarranted in law or without justification in fact. Therefore, 

the Complainant's choice ofa $15,000 civil penalty should be affirmed. 

14 
WHEREFORE the Complainant respectfully requests that this Motion For Decision be 

granted in all respects or that in the alternative the hearing in this matter be limited to the 

issue of sanction. 

Respectfully submitted, 

Alfred R. Johnson, Jr. 

Regional Counsel 

By: 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

Telephone: 718553-3270 

Facsimile: (718) 995-5699 

Date: 

15 
CERTIFICATE OF SERVICE 

I hereby certifY that on this day copies of the foregoing Complainant's Motion For Decision 

were sent by Federal Express Mail addressed as follows: 

Hearing Docket 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2Wl 000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

(FAX) 202-366-7536 

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 

Room E12-320 

V,S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

(FAX) 202-366-7536 

anagement & Program Analyst 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

16 
u.s. DEPARTMENT OF TRANSPORTATION 

FEDERAL A VIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of Brendan Airways, LLC 

2008EA170038 

Judge Not Assigned 

COMPLAINT 

The Federal Aviation Administration (FAA), by counsel, hereby files its Complaint, 

pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.208), and states as 

follows: 

I 

Respondent, Brendan Airways, LLC, was advised through a Final Notice of 

Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount 

of $15,000. On January 2, 2009, Respondent submitted a written demand for a 

hearing. 

II 

1. Brendan Airways, LLC (hereinafter "Brendan Airways", "you" or 

"your") is the holder of Air Carrier Certificate No. U30A762J. 

2. Pursuant to the above referenced air carrier certificate you are 

authorized to conduct operations under Part 121 of the Federal 

Aviation Regulations (FAR). 

EXHIBIT 

.1-
3. On or about May 17, 2008, you operated an Airbus A320-212, 

(hereinafter "the aircraft"), identification number N265A V, on a flight 

that took off and landed at Miami International Airport, Florida 

(hereinafter "the flight"). 

4. Prior to the flight, maintenance was performed on the aircraft in which 

the spoiler servo actuators for left wing roll spoilers three and five 

were placed in the maintenance mode. 

5. Subsequent to the aforementioned maintenance the spoiler servo 

actuators for left wing roll spoilers three and five were not returned to 

the operational mode prior to the flight. 

6. Pursuant to the Airbus Maintenance Manual for this aircraft if the 

spoilers are left in the maintenance mode aerodynamic forces will 

caused unwanted movement ofthe spoiler. 

7. By virtue of the foregoing, you performed maintenance on the 

aircraft's left wing roll. spoilers three and five without using the 

methods, techniques, and practices prescribed in the current 

manufacturers maintenance manual or Instructions For Continued 

Airworthiness prepared by its manufacturer, or other methods, 

techniques, and practices acceptable to the Administrator. 

8. By virtue of the foregoing, you performed maintenance, without doing 

the work in such a manner that the condition of the aircraft, airframe, 

aircraft engine, propeller, or appliance worked on was at least equal to 

its original or properly altered condition. 

9. During the flight, the aircraft took off at approximately 1725 Universal 

Time Coordinated (UTe) and landed at approximately 2045 UTe. 

10. During the flight, but prior to takeoff, an amber "LAP DEGRADED" 

message was displayed on the aircraft's Electronic Centralized 

Aircraft Monitor (ECAM). 

11. The amber LAP DEGRADED message on the aircraft's ECAM 

comes on when there is a failure of one of the aircraft's spoiler 

servojacks. 

2 
12. During the flight, but prior to takeoff, the ECAM indicated that the 

following wing roll spoilers were not operational and/or were locked 

out: 

a) left wing roll spoiler No.3; 

b) left wing roll spoiler No.5; 

c) right wing roll spoiler No.3; 

d) right wing roll spoiler No.5 

13. . During the flight, but prior to takeoff, the pilots operating the aircraft 

were aware that the aircraft's ECAM indicated that the following wing 

roll spoilers were not operational and/or were locked out: 

a) left wing roll spoiler No.3; 

b) left wing roll spoiler No.5; 

c) right wing roll spoiler No.3; 

d) right wing roll spoiler No.5 

14. Pursuant to the aircraft's Minimum Equipment List (MEL) the aircraft 

cannot be dispatched when two or more spoilers on either wing are in 

an inoperable condition. 

15. Notwithstanding the above, during the flight you operated the aircraft 

during takeoff and thereafter with the following inoperative 

instruments: 

a) left wing roll spoiler No.3; 

b) left wing roll spoiler No.5; 

c) right wing roll spoiler No.3; 

d) right wing roll spoiler No.5 

3 
16. During the flight, and within twenty minutes after takeoff, the ECAM 

once again indicated that the following wing roll spoilers were not 

operational and/or were locked out: 

a) left wing roll spoiler No.3; 

b) left wing roll spoiler No.5; 

c) right wing roll spoiler No.3; 

d) right wing roll spoiler No.5 

17. During the flight, and the aircraft's first landing attempt at Miami 

International Airport, the aircraft's left wing tip contacted the runway 

causing damage to the left wing tip. 

18. Due to the above-referenced inoperable wing roll spoilers, during the 

flight, the first landing attempt was aborted. 

19. During the flight, the aircraft was operated III an unairworthy 

condition. 

20. During the flight, the aircraft was operated in a careless or reckless 

manner so as to endanger the life or property of another. 

III 

By reason of the foregoing facts and circumstances, Respondent violated the 

following section(s) of the Federal Aviation Regulations: 

a. Section 121.153(a)(2), which states that no certificate holder may 

operate an aircraft unless that aircraft is in an airworthy condition and 

4 
meets the applicable airworthiness requirements, including those 

relating to identification and equipment. 

b. Section 121.628(a)(5), which states that no person may take off an 

airplane with inoperable instruments or equipment installed unless the 

airplane is operated under all applicable conditions and limitations 

contained in the Minimum Equipment List and the operations 

specifications authorizing use of the Minimum Equipment List. 

c. Section 43.13(a), which states that each person performing 

maintenance, alteration, or preventive maintenance on an aircraft, 

engine, propeller, or appliance shall use the methods, techniques, and 

practices prescribed in the current manufacturer's maintenance manual 

or Instructions for Continued Airworthiness prepared by its 

manufacturer, or other methods, techniques, and practices acceptable 

to the Administrator, except as noted in §43.16. He shall use the tools, 

equipment, and test apparatus necessary to assure completion of the 

work in accordance with accepted industry practices. If special 

equipment or test apparatus is recommended by the manufacturer 

5 
involved, he must use that equipment or apparatus or its equivalent 

acceptable to the Administrator. 

d. Section 43.13(b), which states that each person maintaining or 

altering, or performing preventive maintenance, shall do that work in 

such a manner and use materials of such a quality, that the condition of 

the aircraft, airframe, aircraft engine, propeller, or appliance worked 

on will be at least equal to its original or properly altered condition 

(with regard to aerodynamic function, structural strength, resistance to 

vibration and deterioration, and other qualities affecting 

airworthiness). 

e. Section 91.7(a), which states that no person may operate a civil aircraft 

unless it is in an airworthy condition. 

IV 

1. Pursuant to 49 U.S.c. §46301(a)(1), Respondent is subject to a civil 

penalty not to exceed $25,000 for each of the violations alleged, or, for a small 

business concern, pursuant to 49 U.S.C. §46301(a)(5), Respondent is subject to a 

civil penalty not to exceed $11,000 for each of the violations alleged. 

6 
2. Under the facts and circumstances of this case, a civil penalty of $15,000 

is appropriate. 

WHEREFORE, the FAA, by counsel, respectfully requests that the 

Administrative Law Judge enter an order that Respondent be assessed a civil penalty 

in the amount of $15,000. 

Respectfully submitted, 

Alfred R. Johnson, Jr. 

Acting Regional Counsel 

By: 

David M. Cohen 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

718553-3270 

(718) 995-5699 

NOTE: 

The Rules of Practice for this proceeding are set forth in Part 13, 

Subpart G, ofthe Federal Aviation Regulations (14 C.F.R. Part 13). 

The Rules of Practice provide that Respondent must file a written 

answer to this Complaint, or a written Motion to Dismiss if appropriate, not 

later than 30 days after the date shown on the Certificate of Service. A general 

denial is deemed a failure to file an answer (Section 13.209(e». 

7 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Complaint has been placed this date in the United 

States mail, postage prepaid, by Certified Mail - Return Receipt Requested addressed 

as follows: 

Jason Dickstein 

Washington Aviation Group, PC & Law Offices of Jas 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 

Federal Aviation Administration (Original and one copy) 

800 I~dependence Avenue, S.W. /. 

Washington, D.C. 20591 . 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014 

~IF FILING BY FEDERAL EXPRESS 

Federal Aviation Administration (Original and one copy) 

600 Independence Avenue, SW 

Wilbur Wright Building - Room 2014 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Date: ______ _ :J!t1fAfI (jhl);1k}7~rn ,; 

MarYann MI8lXone !'~ 

Legal TechniCIan 

Federal Aviation Administration 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

8 
\" 

I, 

, ' 

<,. 

SERVED JUNE 7, 2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

BRENDAN AIRWAYS, LLC. 

FAA DOCKET NO. CP09EA0007 

(Civil Penalty Action) 

DMS NO. FAA-2009-0032 

,f 

, " ,/" 

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 SURREPL Y 

~ y "Partial Motion to Dismiss, and for a More Definite Statement" ("Motion to 

Dismiss") served February 12, 2009, Brendan Airways, LLC, ("Respondent") seeks to dismiss 

the Complaint filed by the Acting Regional Counsel, Eastern Region ("Complainant"), Federal 

Aviation Administration ("FAA"), arguing that the Complaint failed to allege sufficient facts to 

make out aprimaJacie case that Respondent violated 14 C.F.R. §§ 43.13(a), 43.13(b), 91.7(a), 

and 121.153(a)(2).1 In the alternative, Respondent seeks an order for a more defmite statement 

I Motion to Dismiss at 3-8. 

EXHIBIT 

14 C.F.R. § 43.13(a) provides: "Each person performing maintenance, alteration, or preventive maintenance on an 

aircraft, engine, propeller, or appliance shall use the methods, techniques, and practices prescribed in the current 

manufacturer's maintenance manual or fustrnctions for Continued Airworthiness prepared by its manufacturer, or 

other methods, techniques, and practices acceptable to the Administrator, except as noted in § 43.16, He shall use 

the tools, equipment, and test apparatus necessary to assure completion of the work in accordance with accepted 

industry practices. If special equipment or test apparatus is recommended by the manufacturer involved, he must use 

that equipment or apparatus or its equivalent acceptable to the Administrator." 

14 C.F.R. § 43,13(b) provides: "Each person maintaining or altering, or performing preventive maintenance, shall 

do that work in such a manner and use materials of such a quality, that the condition of the aircraft, airframe, aircraft 

- 1 -
regarding the standard that Complainant employs to "judge the airworthiness condition of' 

aircraft under 14 C.F.R §§ 91.7(a) and 121.l53(a)(2).2 By its "Answer to Respondents' Partial 

Motion to Dismiss and for a More Definite Statement" ("Answer to Motion") served March 12, '. 

2009, Complainant contends that it provided Respondent with sufficient notice of the violations 

alleged in the Complaint and requests that a civil penalty of $15,0003 be assessed.4 

On March 18, 2009, Respondent served "Surreply to Partial Motion to Dismiss, and for a 

More Definite Statement" ("Surreply,,).5 In response, on March 25, 2009, Complainant served 

"Motion to Strike the Respondent's Surreply to Partial Motion to Dismiss, and for a More 

Definite Statement" ("Motion to Strike") contending that the Surreply is redundant and may not 

be filed at this point in the proceeding.6 On April 2, 2009, Respondent served "Opposition to 

Complainant's Motion to Strike Surreply" ("Opposition to Motion to Strike"), arguing that the 

Surreply "is a valuable expansion of the record, and should be allowed in.,,7 

For the reasons set forth below, we deny Respondent's Motion to Dismiss and grant 

Complainant's Motion to Strike. 

I. BACKGROUND 

engine, propeller, or appliance worked on will be at least equal to its original or properly altered condition (with 

regard to aerodynamic function, structural strength, resistance to vibration and deterioration, and other qualities 

affecting airworthiness)." 

14 C.F.R. § 91.7(a) provides: "No person may operate a civil aircraft unless it is in an airworthy condition." 

14 C.F.R. § 121.1S3(a)(2) provides: "Except as provided in paragraph (c) of this section, no certificate holder may 

operate an aircraft unless that aircraft .. , (2) Is in an airworthy condition and meets the applicable airworthiness 

requirements of this chapter, including those relating to identification and equipment." 

2 Motion to Dismiss at 7,8. 

3 Compl. 'I[ IV-2. 

4 Answer to Motion at 6-8. 

5 SuITeply at I. The contents of the Surreply are discussed in Part D of this Order. 

6 Motion to Strike at 2. 

7 Opposition to Motion to Strike at 1-2. 

- 2-

; . ! 

•• 
,. 

'. The Complaint alleges five violations of the Federal Aviation Regulations ("FARs,,).8 

First, it alleges that Respondent operated an aircraft in an unairworth y condition in violation of 

14 C.F.R. §§ 121.l53(a)(2) and 91.7(a).9 Second, it alleges that Respondent flew the aircraft " 

with inoperable instruments or equipment and that the aircraft was not operated in accordance 

with the applicable conditions and limitations of the Minimum Equipment List ("MEL"), in 

violation of 14 C.F.R. § 121.628(a)(5).10 Third, it alleges that Respondent failed to perform 

proper maintenance on the aircraft pursuant to 14 C.F.R. § 43.13(a) and (b). I! Respondent 

argues that the allegations that it violated 14 C.F.R §§ 43. 13(a), 43. 13(b), 91.7(a), and 

121.153(a)(2) are "insufficient on their face and must therefore be dismissed.,,12 

The Complaint alleges the following facts: On May 17, 2008, Respondent operated an 

Airbus A3 20-212 ("the aircraft") on a flight that took off and landed at Miami International 

Airport ("the flight"). 13 Prior to the flight, maintenance was performed on the aircraft, during the 

course ~f which the spoiler servo actuators for left wing roll spoilers three and five were placed 

in maintenance mode. 14 After the maintenance was performed, the spoiler servo actuators were 

not returned to operational flight mode. 15 Respondent operated the flight with the spoiler servo 

actuators in maintenance mode. 16 According to the Airbus Maintenance Manual for the aircraft, 

spoilers left in mainte~ance mode will cause ''unwanted movement of the spoiler."I? According 

to the aircraft's MEL, the aircraft cannot be dispatched when two or more spoilers on either wing 

8 See Compl. 'Il'II ill-(a) to ill-(e). 

9 See id. 'Il'II II-19, ill-(a), ill-(e). 

10 See id. 'Il'IIII-ll to II-16, ill-(b). 

II See id. 'Il'II II-4 to II-S, ill-(c), ill-(d). 

12 Motion to Dismiss at 3-S. The Motion to Dismiss does not address Complainant's claim that Respondent violated 

14 C.F.R. § 121.62S(a)(5). 

13 Compl.l II-3. 

14Id. I II-4. 

15 Id. I II-5. 

16 See id. 'Il'II II-5, II-IO to II-!3, II-IS, II-16. 

17 Id.1 II-6. 

- 3 -
\ 

are in an inoperable condition. 18 During the flight, but prior to takeoff, the aircraft's Electronic 

Centralized Aircraft Monitor ("ECAM") displayed a message indicating that there was a failure 

of one of the aircraft's spoiler servojacks. 19 During takeoff, as well as twenty minutes into the 

-. 

flight, the ECAM was indicating that four wing roll spoilers were "not operational and/or were 

locked OUt.,,20 The aircraft's pilots were aware that the ECAM was indicating that four wing roll 

spoilers were "not operational and/or were locked out.,,21 During the aircraft's fIrst landing 

attempt at Miami International Airport, the aircraft's left wing tip made contact with.the runway 

and the landing attempt was aborted.22 The Complaint alleges that this failed landing attempt 

was caused by the inoperable wing roll spoilers.23 

Respondent's Motion to Dismiss disputes the facts alleged in the Complaint. According 

to Respondent, the aircraft had reached the end of its lease to Respondent and, pursuant to the 

terms of the lease, Respondent sent the aircraft for maintenance.24 Respondent alleges that after 

the maintenance on the aircraft was completed, the aircraft was to be returned to the lessor.25 

Prior to returning the aircraft, a maintenance acceptance flight was performed to ensure that the 

aircraft was airworthy.26 Respondent contends that it was only during the flight, after take-off, 

that the crew discovered a problem with the wing roll spoilers.27 Respondent contends that 

according to a subsequent investigation, the spoilers had been moved into maintenance mode 

18 [d. 'II II-14. 

19 CompI. 'Il'Il II-lO, II-II. 

20 Ed. 'Il'Il II-15, II-16. The four allegedly inoperative wing roll spoilers were: left wing roll spoiler No.3, left wing 

roll spoiler No.5, right wing roll spoiler No.3, and right wing roll spoiler No.5. The Complaint does not indicate 

what caused right wing roll spoilers No.3 and No.5 to become inoperative. 

21 [d. VI-l3. 

22 [d. 'Il'IlII-17, II-IS. 

23 [d. 'II II-IS. 

24 Motion to Dismiss at 1-2. 

25 [d. at 2. 

26 [d. 

27 [d. 

-4-

. \ 
during a maintenance operation conducted at the instmction of the aircraft's subsequent lessee.28 

Respondent asserts that "none of the work ordered by [Respondent] would have required the 

spoilers to be moved into maintenance mode, and none of [Respondent's] work instructions 

authorized shifting the spoilers into maintenance mode. ,,29 

II. DISCUSSION 

Section 13.208(c) of FAA's Rules and Practice sets out the standard for adequacy of a 

Complaint: "A complaint shall set forth the facts alleged, any regulation allegedly violated by 

the respondent, and the proposed civil penalty in sufficient detail to provide notice of any factual 

or legal allegation and proposed civil penalty.,,30 

A motion to dismiss for insufficiency may be granted if it is shown--

"that the complaint fails to state a violation of a provision of the Federal aviation statute' 

listed in the fIrst sentence in 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or any 

implementing mle, regulation, or order, or a violation of the Federal hazardous materials 

transportation statute, 49 U.S.C. 5121-5128, or any implementing rule, regulation or 

order.,,3l 

Respondent argues that four of the claims alleged in the Complaint, read in the light "most 

favorable to Complainant, are insufficient because they allege legal conclusions instead of 

facts. 32 Respondent cites Clegg v. Cult Awareness Network in support of the proposition that 

alleging solely legal conclusions is insuffIcient in notice pleading.33 Yet, as the Complainant 

28 [d. 

29 [d. 

30 14 C.F.R § 13.20S(c); City of Phiia., FAA Docket No. CPOSEA0009, FDMS No. FAA-200S-05lO, 

Administrative Law Judge's Order Granting in Part and Denying in Part Motion to Dismiss the Complaint at 3 (Aug 

5,200S). 

Jl 14 C.F.R § 13.21S(f)(1). 

32 Motion to Dismiss at 3-S. The four allegedly insufficient claims are 14 C.F.R §§ 43. 13(a), 43.13(b), 91.7(a), and 

121.153(a)(2). 

33 Ed. at 3 (citing generally Clegg v. Cult Awareness Network, IS F.3d 752,754-55 (9th Cir. 1994)). 

- 5 -
notes34, Clegg was a case between private litigants in which the Federal Rules of Civil Procedure 

were controlling.35 In an administrative proceeding, a complaint "is sufficient if the respondent 

'understood the issue' and 'was afforded full opportunity' to justify its conduct during the course 

.. of the litigation. ,36 On a motion to dismiss, the complaint's allegations are accepted as true. 37 

Accordingly, we evaluate the sufficiency of the Complaint under this standard. 

A. The 14 C.F.R. § 43.13(a) and (b) Claims 

Respondent contends that "[i]n order to prove a violation of 14 C.P.R. § 43.13(a), the 

Administrator must allege [] that the Respondent has used certain methods, techniques, or 

practices ... " and that "an integral element to a 43. 13(b) claim is [an] allegation that the 

Respondent performed the maintenance.,,38 Respondent argues that, since the Complaint fails to 

allege that Respondent performed the maintenance at issue, or that the maintenance was 

performed under Respondent's instruction, the claims should be dismissed for insufficiency.39 

Complainant responds that it is irrelevant whether the maintenance was performed by, or 

under the direction of, Respondent.4o "Pursuant to 14 C.F.R. § 121.363, the Respondent is 

primarily responsible for the performance of the maintenance of its aircraft ... [and this] 

regulation does not allow air carriers to evade their primary responsibilities by delegating their 

.maintenance obligations to third parties.,,41 

34 Answer 'to Motion at 5 n.3. 

J5 See Clegg at 754 (case reviewed under FRCP 12(b)(6)). 

J6 Aloha Airlines, Inc. v. Civil Aeronautics Bd., 598 F.2d 250, 262 (D.C. Cir. 1979)(quoting NLRB v. Mackey Radio 

& Tel. Co., 304 U.S. 333, 350 (1938)); Flying Food Group, Inc. v. NLRB, 471 F.3d 178, 183 (D.C. Cir. 2006). 

37 Riverdale Mills Corp., FAA Order No. 2000-25 at I (Dec 21,2000) (citing, generally, United States v. Gaubert, 

499 U.S. 315, 327 (1991)). 

JB Motion to Dismiss at 4,5. 

39 Ed. 

40 Answer to Motion at 6. 

4\ Ed. (citing Alaska Airlines, Ene., FAA Order No. 2004-8, at 6 (Sept 30, 2004)). 14 C.F.R. § 121.363 provides: 

(a) Each certificate holder is primarily responsible for--

(I) The airworthiness of its aircraft, including airframes, aircraft engines, propellers, appliances, 

and parts thereof; and 

- 6 -
" In Alaska Airlines, Inc., an air catTier was held to be not responsible for the maintenance 

deficiencies performed by its independent contractors because the airline neither knew nor had 

reason to know of the maintenance deficiencies.42 On appeal, the Administrator reversed.43 

'. 

According to the Administrator, 14 C.F.R. § 121.363 "does not allow air carriers to evade their 

primary responsibilities by delegating their maintenance obligations to third parties .... The 

courts and the Administrator ... have indicated repeatedly in past cases that an air carrier's 

duties, which include a statutory duty to exercise the highest possible degree of care, are nondelegable.,,44 Under § 121.363(b), "arranging maintenance with someone else does not relieve 

the air carrier of its primary responsibility for airworthiness and maintenance.,,45 The 

Administrator also pointed to an FAA-issued guidance emphasizing air carriers' responsibility 

for maintenance performed by independent contractors.46 Accordingly, we find that the 

Complaint alleges sufficient facts which, if proven, would support a conclusion that Respondent 

violated 14 C.F.R. § 43.13(a) and (b). 

The Complaint alleges that Respondent violated 14 C.F.R. § 43.13(a) when it performed 

maintenance on the aircraft without using the methods, techniques and practices prescribed in the 

current manufacturer's maintenance manual for the aircraft.47 The Complaint further claims that 

Respondent violated 14 C.F.R. § 43.13(b) when Respondent did not perform the maintenance in 

(2) The performance of the maintenance, preventive maintenance, and alteration of its aircraft, 

including airframes, aircraft engines, propellers, appliances, emergency equipment, and parts 

thereof, in accordance with its manual and the regulations of this chapter. 

(b) A certificate holder may make arrangements with another person for the performance of any 

maintenance, preventive maintenance, or alterations. However, this does not relieve the certificate holder of 

the responsibility specified in paragraph (a) of this section. 

42 FAA Docket Nos. CP02NMOOOl, CP02NM0002, and CP02NM0003, FDMS Nos. FAA-2002-11411, 11412, and 

11413, Order Granting Respondent's Motion for Decision at 3 (Jan 10,2003). 

43 Alaska Airlines, Inc., FAA Order No. 2004-8 at 1 (October 4,2004). 

44 Id. at 6. 

45 Id. (emphasis in original). 

46 Id; Flight Standards Handbook Bulletinfor Airworthiness, HBAW-1996-0SB at 2 (1996): each airline is 

"responsihle for the performance of all elements of its continuous airworthiness maintenance program." 

47 See Complaint'll'll II-4 to II-8, ill-(c). 

-7 -
a manner that resulted in the condition of the aircraft being at least equal to its original or 

properly altered condition.48 

Under Alaska Airlines, Inc., Respondent was responsible for the maintenance performed on .. the aircraft. 49 Although Respondent claims that it did not order the maintenance procedures that 

caused the spoilers to be left in maintenance mode, Respondent admits that the aircraft was under 

lease to Respondent when Respondent sent the aircraft for maintenance50, and the Complaint 

alleges that Respondent operated the aircraft on the flight after maintenance was performed.51 

As the air carrier operating the aircraft, Respondent was responsible for the aircraft's 

maintenance, however the maintenance was ordered. 52 

Moreover, the facts alleged are sufficient to support the claim that the maintenance was 

improperly conducted. The Complaint alleges that Respondent operated the aircraft on the 

flight. 53 Prior to the flight, the aircraft underwent maintenance. 54 As a result of that 

maintenance, the aircraft's spoiler servo actuators for left wing roll spoilers three and five were 

allegedly left in maintenance mode for the duration of the flight, contrary to the Airbus 

Maintenance Manual for the aircraft.55 Further, the aircraft's MEL allegedly proscribes 

dispatching the aircraft when two or more spoilers on either wing are in an inoperable 

condition.56 Since both the aircraft's maintenance manual and the MEL allegedly warned against 

leaving the wing roll spoilers in maintenance mode during the flight, the Complaint alleges 

48 See id. 'Il'll II-4, II-5, II-S, ill-(d). 

4' See Alaska Airlines, Inc., FAA Order No. 2004-S at 5-7 (Oct 4,2004): United Parcel Service, FAA Docket No. 

CPOSS00007, FMDS No. FAA-200S-03S4, Administrative Law Judge's Initial Decision at 2 n.5 (Nov 13, 200S). 

50 See Motion to Dismiss at 1-2 (the aircraft "was sent to a repair station for overhaul before being returned to the 

lessor"). 

51 Complaint'J[ II-3. Respondent does not deny that it operated the aircraft on the maintenance acceptance flight and 

the Motion to Dismiss merely states that the "aircraft was flown on a maintenance acceptance flight." 

52 See Alaska Airlines, Inc., at 2, 5-7. 

53 Compl. 'J[ II-3. 

541d. 'J[ II-4. 

55 ld. 'Il'll II-4 to II-6, II-I2, II-13, II-I5, II-16. 

SOld. 'J[ II-14. 

- 8 -
sufficient facts to conclude that the maintenance was conducted contrary to the methods, 

techniques, and practices prescribed in the current manufacturer's maintenance manual, in 

violation of 14 C.F.R. § 43.13(a).57 .. The Complaint also alleges sufficient facts to conclude that maintenance on the aircraft was 

conducted in violation of 14 C.F.R. § 43. 13(b). The Complaint alleges that both the aircraft's 

MEL and the Airbus Maintenance Manual warned against dispatching the aircraft with 

inoperable wing roll spoilers.58 The Airbus Maintenance Manual allegedly warns that "if the 

spoilers are left in the maintenance mode aerodynarnic forces will caused [sic) unwanted 

movement of the spoilers.,,59 Moreover, the MEL allegedly warns that an aircraft may not be 

dispatched with two or more spoilers in an inoperable condition.6o Despite these warnings, after 

maintenance was performed on the aircraft, the aircraft was allegedly operated with four 

inoperable spoilers.61 Those alleged facts support the conclusion that Respondent did not 

perform the maintenance in such a manner that the condition of the aircraft was at least equal to 

its original or proper! y altered condition. 

Accordingly, Respondent's alleged violations of 14 C.F.R. § 43. 13(a) and (b) are sufficiently 

pleaded in the Complaint. The motion to dismiss those claims is denied. 

B. The 14 C.F.R. §§ 121.153Ca)(2) and 91.7Ca) Claims 

Respondent contends that in order to violate 14 C.F.R. § 121.153(a)(2), the aircraft must 

have beeh operated either "(1) in an unairworthy condition or (2) in a manner that fails to meet 

the applicable airworthiness requirements of" Chapter 1 of the C.F.R.62 Similarly, Respondent 

57 Id. 'Il'lI1I-6, II-14. 

58 Id. 

59Id. 'I[ 11-6. 

WId. '1[11-14. 

611d. 'Il'lI1I-5, 11-12, 11-13, 11-15, II-16. 

62 Motion to Dismiss at 6. 

-9-
contends that to violate 14 C.F.R. § 91.7(a), the aircraft must have been operated in an 

unairworthy condition.63 Respondent argues that those claims should be dismissed because the 

Complaint fails to describe the airworthiness standard that the aircraft failed to meet, cite a .. requirement of the aircraft's type design that the aircraft failed to meet, or describe a condition 

that made the aircraft unsafe to fly.64 Despite Respondent's concerns, the Complaint alleges facts 

sufficient to support a finding that that Respondent violated 14 C.F.R. §§ 121.153(a)(2) and 

91.7(a). 

The airworthiness standard is clear: "To be airworthy, an aircraft must: (1) conform to a type 

design approved under a type certificate or supplemental type certificate and to applicable 

Airworthiness Directives; and (2) be in a condition for safe operation.,,65 

The Complaint contains facts alleging that Respondent violated both prongs of this standard. 

First, the Complaint alleges that the aircraft's condition during operation violated the aircraft's 

MEL.66 Operating an aircraft whose instruments or equipment are not in conformity with the 

aircraft's MEL may be sufficient to deem the aircraft out of conformity with its type design.67 

The Complaint also contains facts alleging that the aircraft was not in a condition for safe 

operation. The Complaint alleges that during the flight, Respondent operated the aircraft with 

two left wing roll spoilers in maintenance mode, contrary to the Airbus Maintenance Manual.68 

Moreover, Respondent allegedly operated the flight with a total of four inoperable wing roll 

63/d. at 7. 

64 Id. at 7, 8. 

6' Del. Skyways LLC, FAA Order No. 2005-6 at 2 (Mar 8, 2005); Cal. Helitech, FAA Order No. 2000-18 at 2 n.7 

(Aug II, 2000). 

66 See CampI. 'Il'lI II-14, II-15. The MEL allegedly indicates that the aircraft cannot be dispatched when two or more 

spoilers on either wing are io an inoperable mode and the Complaint alleges that, during the flight, four wing roll 

sf oilers (two the left wing and two on the right wing) were inoperative. 

6 See Delta Air Lines, Inc., FAA Order No. 97-21 at I (May 28, 1997) ("It has long been the agency's position that 

without an applicable provision in the Minimum Equipment List, if an instrument or piece of equipment is 

inoperable, then the airworthiness certificate for the aircraft is ineffective."). 

68 Compl. '11'11 II-6, II-12, II-l3, II-15, II-16. 

- 10-
spoilers; and, according to the aircraft's MEL, the aircraft cannot be dispatched when two or 

more spoilers on either wing are in an inoperable condition.69 Finally, the Complaint alleges that 

because of the inoperable wing roll spoilers, the aircraft's left wing tip made contact with the 

runway during the aircraft's first landing attempt, causing the landing attempt to be aborted.7o 

The Complaint asserts that the aircraft was operated in an unairworthy condition in violation 

of 14 C.F.R. §§ 121.1S3(a)(2) and 91.7(a); and the facts alleged in the Complaint would support 

a conclusion that operating the aircraft with four inoperative wing roll spoilers caused the aircraft 

to be operated in an unsafe condition.71 Accordingly, Respondent's alleged violations of 14 

C.F.R. §§ 121.1S3(a)(2) and 91.7(a) are sufficiently pleaded in the Complaint. The motion to 

dismiss those claims is denied. 

C. More Definite Airworthiness Standard 

In the alternative, Respondent requests that we order Complainant to "state the facts and 

objective standards that support" the claims that Respondent violated 14 C.F.R. §§ 121.1S3(a)(2) 

and 91.7(a).72 The Rules of Practice for FAA Civil Penalty Proceedings provide that "[a] party 

may file a motion for more definite statement of any pleading which requires a response under 

this subpart.,,73 Respondent argues that the Complaint fails to provide adequate notice of "what 

objective standards the FAA is using to judge the airworthiness condition of the aircraft.,,74 

As noted above, the airworthiness standard is clear.15 Indeed, the Motion to Dismiss 

indicates·that Respondent is aware of the airworthiness standard, stating: "The term 'airworthy' 

has been defmed by the Administrator and the courts to mean that the aircraft meets its type 

., [d. 'Il'IIII-14, II-IS. 

70 [d. 'JIII-17, II-18. 

n [d. 'Il'II II-19, III-(a), III-(e). 

72 Motion to Dismiss at 7, 8. 

73 14 C.F.R. § 13.218(f)(3). 

74 Motion to Dismiss at 7. 

75 Del. Skyways ac, FAA Order No. 2005-6 at 2 (Mar 8, 2005); Cal. Helitech, FAA Order No. 2000-18 at 2 n.7 

(Aug 11,2000). 

- 11 -
design and is in a condition for safe operation.,,76 Moreover, Respondent employs the 

airworthiness standard in setting out its argument that the Complaint failed to make out a prima 

facia case that Respondent violated 14 C.P.R. § 121.153(a)(2).77 Thus, the Complaint was clear 

., 

enough for Respondent to frame a responsive pleading, and Complainant is not required to 

provide a more definite statement of airworthiness. 78 

D. Complainant's Motion to Strike the Surreply 

Respondent's Surreply79 contends that the standard for sufficiency in administrative 

pleadings as proposed by the Complainant in its Answer to the Motion is overly lenient. 80 The 

Surreply also contends that FAA regulations do not hold a party liable for regulatory violations 

that were not committed by the party, and that the Complaint fails to allege that Respondent 

performed the deficient maintenance. 81 Finally, the Surreply argues that the Complaint only 

alleges legal conclusions unsupported by proper allegations of fact.82 Complainant's Motion to 

Strike responds by arguing that the Surreply should be stricken because it is redundant and 

because, under 14 C.P.R. § 13.218, a surreply may not be filed in response to a Complainant's 

answer to a Respondent's motion.83 Respondent's Opposition to the Motion to Strike contends 

that 14 C.F.R. § 13.218 does not proscribe the Surreply and that the Surreply "is a valuable 

expansion of the record, and should be allowed in.,,84 

76 Motion to Dismiss at 6 (citing Am. Air Network. Inc., FAA Order No. 2008-10 at II n.35 (Oct 07,2008)). 

77 Id. (" ... the Administrator must allege that the aircraft (I) failed to meet an airworthiness requirement in the 

regulations, or (2) failed to meet the requirements of its type design, or (3) was not in a condition for safe 

°feration"). 

7 See supra note 70. 

79 The Surreply refers to the Complainant as "Administrator" in this proceeding, although the Complainant is, in 

fact, the FAA Acting Regional Counsel. Since the Administrator reviews AU decisions in these proceedings, he is 

not a party in this proceeding and cannot be involved in the prosecution of this case. 

80 See Surreply at 1. 

81 [d. at 2 

82 Id. at 3. 

83 Motion to Strike at 2. 

84 Opposition to Motion to Strike at 2. 

- 12-

) 
The Rules of Practice for FAA Civil Penalty Proceedings provide that "[a]ny party may 

make a motion to strike any insufficient allegation or defense, or any redundant, immaterial, or 

irrelevant matter in a pleading. ,,85 

In Warbelow's Air Venture, Inc., we accepted a surreply that presented arguments that 

were not made in the party's prior filings,86 Unlike that proceeding, the Surreply here merely 

reframes arguments Respondent made in its Motion to Dismiss. First, the Surreply contends that 

the standard for sufficiency in administrative pleadings as proposed by the Complainant in its 

Answer to the Motion to Dismiss is overly lenient. 87 According to the Surreply, the Complaint 

must allege facts, not merely legal conclusions.88 This essentially reiterates Respondent's 

argument in the Motion to Dismiss that "[a]lleging legal conclusions, rather than alleging facts, 

is insufficient in notice pleading.,,89 The Surreply goes on to contend that FAA regulations do 

not hold a party liable for regulatory violations that were not committed by the party and that the 

Complaint fails to allege that Respondent performed the deficient maintenance.90 This argument 

mirrors Respondent's argument in the Motion to Dismiss that the Complaint's failure to state 

facts linking the Respondent to the deficient maintenance "represents a failure to state a vital 

element in the cause of action.,,91 Finally, the Surreply reiterates Respondent's argument that the 

Complaint only alleges legal conclusions unsupported by proper allegations of facts,92 Since the 

85 14 C,F.R. § 13.2IS(f)(4), Cf City a/Chi., FAA Docket No. CP05GLOOI4, DMS No. FAA-2005-22671, Order 

Denying Motion to Dismiss 1 (Feb 17,2006) (denying Motion for Leave to File Reply to Answer, as well as 

Request for Respond to Reply to Answer, because "nothing in the Rules permits such a reply, and nothing in the 

reply convinces us that it should be received"). 

86 See Warbelow's Air Venture, Inc., FAA Docket No. CPOOAL0002, DMS No. FAA-2000-7215, Order of Chief 

Administrative Law Judge at 3 (June 14,2005). 

87 Surreply at I. 

88 ld. at 3 ("[mjerely stating the legal conclusions, without factual support, is insufficient"). 

89 Motion to Dismiss at 3 (citing Clegg v. Cult Awareness Network, IS F.3d 752, 754-55 (9th Cir. 1994)). 

90 Surreply at 2 

91 Motion to Dismiss at 4. 

92 Surreply at 3. See Motion to Dimiss at 3-7. 

- 13 -
Surreply merely reiterates arguments already presented by the Respondent in its Motion to 

Dismiss, it is redundant. Accordingly, the Motion to Strike is granted. 

.. III. CONCLUSION 

Accordingly, we conclude that the Complaint alleges sufficient facts and IT IS 

ORDERED THAT: 

(1) Respondent's "Partial Motion to Dismiss, and for a More Definite Statement" is 

denied; 

(2) Complainant's "Motion to Strike the Respondent's Surreply to Partial Motion to 

Dismiss, and for a More Definite Statement" is granted. 

(3) Pursuant to 14 C.P.R. § 13.218(f)(2)(ii), Respondent shall serve and file an 

answer not later than 10 days after service of this order.93 

SO ORDERED. 

-~b'le A. Yoder 

Chief Administrative Law udge 

Attachment - Service List 

93 14 C.F.R. § 13.218(f)(2)(ii) states that "[i]fthe motion to dismiss is not granted, the respondent shall file an 

answer and shall serve a copy of the answer on each party not later than 10 days after service of the administrative 

law judge's ruling or order on the motion to dismiss." 

- 14 -
, • 

SERVICE LIST 

FAA Docket No. CP09EA0007 

(Civil Penalty Action) 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2WlO0094 

ONE COpy 

Jason Dickstein 

Washington Aviation Group, PC, and the Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, N.W., Ste. 503 

Washington, DC 20007 

TEL: (202) 628-6776 

FAX: (202) 628-8948 

David M. Cohen, Attorney 

Office of the Regional Counsel, EAL-7 

FederaLA viation Administration 

I Aviation Plaza 

Jamaica, NY 11434 

TEL: (718) 553-3270 

FAX: (718) 995-5699 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room E12-320 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E: 

Washington, DC 20590 

TEL: (202) 366-2142 

FAX: (202) 366-7536 

94 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: 

Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building - Suite 2WIOOO, 

Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430. 

- 15 -
,I EXHIBIT 

3 

BEFORE THE U.S. DEPARTlV1Ul'lT OF TRANSPOR ATIOJl;l 

The Honorable Chief Administrative Law Judge RonniE A. Yoder 

In the matter of 

. ,Jill' ':l ?n1n 

DMS No.: FAA-2 09-0032 

FAA Docket No.: :P09EAo007 L'nI 

FAACaseNo.:2C 8EA170038_ -

CRTSBRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines 

RESPONSE TO COMPLAINAr~ 1 '03 

FIRST SET OF INTERROGATORIES, 

REQUEST FOR ADMISSIONS, AND 

REQUEST FOR PRODUCTION OF 

DOCUMENTS 

Respondent 

Comes now the Respondent, Brendan Airways, LLC d/b/a USA3000 Airlines [hereinafter 

"USA3000"] and RESPONDS to the Complainant's First Set oflnterrogatories, Request for 

Admissions, and Request for Production of Documents. 

Responses to Interrogatories 

1. Identify the names, titles, business or home addresses and telephone numbers of each 

person whom the Respondent intends to call as a witness at the hearing of this matter. 

Response: 

The identity of any witnesses is a matter of trial strategy that has not yet been decided. The 

Respondent reserves the right to amend this answer as trial witnesses are identified. 

2. Provide the substance of the testimony to be offered by each of said witnesses. 

Response: 

The identity of any witnesses is a matter of trial strategy that has not yet been decided. The 

Respondent reserves the right to amend this answer as trial witnesses are identified. 

3. With respect to each expert witness identified in response to request Nos. 1 and 2 above: 

(a) identify the subject matter on which the expert is expected to testify; 

(b) list the substance of the facts and opinions to which the expert is expected to 

testify; 

(c) provide a summary of the grounds for each opinion; 

(d) if the Respondent intends to introduce into evidence or otherwise rely upon a 

written curriculum vitae or other written document listing the expert's 

professional qualifications, identify and attach copies of all such documents. 

I 
Response: 

The identity of any expert witnesses is a matter of trial strategy that has not yet been decided. 

The Respondent reserves the right to amend this answer as expert witnesses are identified. 

4. To the extent not encompassed in your response to Nos. I, 2, and 3 above, identify and 

produce statements of all individuals who spoke to, or were interviewed by, the Respondent 

regarding this matter. 

Response: 

We object to this interrogatory to the extent that it might be interpreted to include interviews 

conducted by Counsel, on the grounds that such interviews are protected from discovery as 

Attorney Work Product. 

All Respondent conversations are detailed in a June I I, 2008, letter from Respondent to 

Laurence Johnson, outlining the interviews conducted and describing the information gleaned 

from them. That letter is attached. Two additional documents exist that are also responsive 

(both are also attached): 

• The Respondent interview of Joe Miller resulted in a separate summary of the interview. 

A copy of the June 13,2008 letter that was produced as a summary of the interview is 

attached. 

• The Respondent asked Chief Pilot Tim Lyons why Captain Walker was in the left seat 

during the flight. A June 3, 2008 email describing the answer is attached. 

5. Identify and produce copies of any and all documents on which the Respondent 

anticipates relying, or will rely, in support of the case it will present at the hearing in this matter, 

including but not limited to documents you intend to introduce into evidence. 

Response: 

Respondent anticipates relying on 

• The transcript of the enforcement action Babbitt v. Surratt and Walker (NTSB Docket 

Nos. SE-18562 and SE-I 8563). 

• The Decision of Judge Fowler in the enforcement action Babbitt v. Surratt and Walker 

NTSB Docket Nos. SE-18562 and SE-18563 (Issued orally August 12,2009 and issued 

in writing on September 2, 2009). 

• The Decision of the NTSB denying the appeal of the enforcement action Babbitt v. 

Surratt and Walker EA-5514 (NTSB March 23,2010). 

• The Decision of the NTSB denying the petition for reconsideration in the appeal of the 

enforcement action Babbitt v. Surratt and Walker EA-5527 (NTSB June 25, 2010). 

• The four documents attached to the Respondent's Discovery Request dated June 2 I, 

2010, which have previously been provided to the Complainant (with that Discovery 

Request). 

• The documents attached to this Response. 
Respondent objects to the direction to produce copies of the cases and transcripts mentioned 

above, as the transcripts and case decisions are already in the possession of the FAA and the 

cases are also available through standard online research mechanisms. 

The specific identity of additional exhibits is a matter of trial strategy that has not yet been 

decided. The Respondent reserves the right to amend this answer as trial exhibits are identified. 

6. IdentifY who placed the aircraft's spoiler servo actuators for left wing roll spoilers three 

and five in the maintenance mode prior to the flight and between April 29, 2008 and March 17, 

2008. 

Response: 

During the period AprilI8-ApriI29, AAR placed the aircraft's spoiler servo actuator for left 

wing spoiler three in the maintenance mode. AAR stated in a May 30, 2008 letter to the FAA 

that the aircraft's spoiler servo actuator for left wing spoiler three was returned to operational 

mode on April 29. This the only time that the aircraft's spoiler servo actuator for left wing 

spoiler three was placed in the maintenance mode between March 17,2008 and April 29, 2008. 

According to the records we have, the aircraft's spoiler servo actuator for left wing spoiler five 

was not placed in maintenance mode between March 17, 2008 and April 29, 2008. 

7. Explain all reasons why the aircraft's spoiler servo actuators for left wing roll spoilers 

three and five were placed in the maintenance mode prior to the flight and between April 29, 

2008 'and March 17, 2008. 

Response: 

To our knowledge, the aircraft's spoiler servo actuator for left wing spoiler three (but not five) 

should have been placed in the maintenance mode only once between March 17, 2008 and April 

29,2008. Between April 18 and April 29, 2008, AAR was working on the left wing's number 

three spoiler control. This was done as part of a non-routine maintenance activity that was 

accomplished pursuant to A320 AMM 27-64-43. A successful operational check on April 29 

confirmed that this spoiler was returned to the operational mode. 

8. IdentifY who and/or what entity is responsible for the aircraft's spoiler servo actuators for 

left wing roll spoilers three and five being placed in maintenance mode prior to the flight and 

explain why you believe that person or entity is responsible. 

Response: 

Aside from the work described in the response to interrogatory 7, we do not know who and/or 

what entity is specifically responsible for the aircraft's spoiler servo actuators for left wing roll 

spoilers three and five being placed in maintenance mode prior to the flight. 
9. Answer whether a failure of one of the aircraft's spoiler servojacks could cause an amber 

LAF DEGRADED message to appear on the aircraft's ECAM. 

Response: 

Yes, that is one of the many scenarios under which an amber LAF DEGRADED message might 

appear on the aircraft's ECAM. 

10. Explain all reasons for your belief that the aircraft can be dispatched when left and right 

wing spoilers three and five are inoperative. 

Response: 

We object to this interrogatory on the grounds that it assumes a "belief' that Respondent has not 

professed. Respondent also objects to this interrogatory on the grounds of relevance, because the 

term inoperative is defined as "a system or component malfunction" and the spoilers in this case 

were in maintenance mode, not malfunctioning 

11. If you believe that the aircraft is in a condition for safe operation when the aircraft's left 

and right wing roll spoilers three and five are inoperative please state and explain all reasons for 

your belief. 

Response: 

Respondent objects to this interrogatory on the grounds that this interrogatory calls for an 

opinion concerning safety, for which Respondent does not have appropriate engineering data to 

respoiId. Respondent also objects to this interrogatory on the grounds of relevance, because the 

term inoperative is defined as "a system or component malfunction" and the spoilers in this case 

were in maintenance mode, not malfunctioning Without waiving these objections, Respondent 

states that generally, if spoilers are known to be inoperative, then the aircraft should only be 

dispatched in accordance with the aircraft's MEL. 

12. If you believe that the aircraft conforms to its type certificate and/or type design when the 

spoiler servo actuators for left wing roll spoilers three and five are placed in the 

maintenance mode please state and explain all reasons for your belief. 

Response: 

Maintenance mode is provided by the manufacturer as original equipment on the aircraft and is 

therefore described in the type design for the aircraft. 
13. Explain all reasons for your belief that the placement of left wing roll spoilers three and 

five in the maintenance mode was not part of any maintenance performed on the aircraft. 

Response: 

We object to this interrogatory on the grounds that it misstates our contention. We have never 

claimed that that the placement of left wing roll spoilers three and five in the maintenance mode 

was not part of any maintenance performed on the aircraft. We do not know how or when the 

left wing roll spoilers three and five were placed in the maintenance mode. Our contention is 

that the placement of left wing roll spoilers three and five in the maintenance mode was not part 

of any maintenance that was ordered by, or within the control of, USA 3000. 

In a letter to the FAA dated May 30, 2008, AAR (the maintenance contractor) admitted that 

during the course of the visit, on or before April 29, 2008, the servo switches for the #2, #3 and 

#4 LEFT spoilers and the #4 and #5 RIGHT spoilers were placed in the 'Maintenance' mode." 

AAR indicates that on or before April 29, its investigation shows that the servo switch for the #3 

LEFT spoiler was placed in the 'Maintenance' mode" but then was returned to the operational 

mode. AAR indicates that its records and investigation suggest that the servo switch for the #5 

LEFT spoiler was never placed in the 'Maintenance' mode during maintenance performed for 

USA3000. 

AAR's letter indicates that the servos were returned to the operational mode on or before April 

29 and therefore if they were placed in the maintenance mode it had to have happened after the 

April 29 inspection that confirmed they were in the operational mode. 

That May 30 letter explains that while the physical evidence shows that on or before May 17, 

2008; left wing roll spoilers three and five were placed in the maintenance mode, "there is no 

record of such action and we were unable to determine who may have been involved." 

USA3000 requires all maintenance to be performed according to work cards or non-routine 

cards. The USA3000 work cards were completed, and there appears to be no other spoilerrelated irregularities in the work cards or the non-routine cards. None of the work cards and nonroutine cards that were accomplished on or after April 29, 2008 required the left wing roll 

spoilers three and five to be placed in the maintenance mode. 

On May 15, 2008, Mr. Miller and Mr. Beal of US A 3000 performed engine tests on the aircraft. 

During the course of those tests, Mr. Miller had occasion to perform a flight control test. He 

received no ECAM warnings about the spoilers and received no indication that the spoilers were 

in maintenance mode. As of this date, all of the maintenance performed on the aircraft before 

the flight, had been accomplished. 

14. Identify what section of the USA 3000 Airlines Minimum Equipment List, ifany, states, 

implies, or infers that the aircraft can be dispatched when two pair of symmetrical spoiler 

surfaces three and five are inoperative. 

Response: 

None 
15. Please identify any malfunctions that occurred in the aircraft's ECAM system that 

occurred during the flight but prior to takeoff. 

Response: 

Unknown. 

16. Please describe all ways in which it was determined that the ECAM system 

malfunctioned during the flight but prior to takeoff. 

Response: 

We object to this interrogatory in that it either is duplicative of interrogatory 15, or else ifit is 

substantively different from interrogatory 15 then it is asking for something that we cannot 

understand (too vague). 

17. If it is your belief that the ECAM failed to report that left and right wing roll spoilers 

three and five were inoperative and/or were locked out at any time prior to takeoff please explain 

all reasons why you hold this belief 

Response: 

During the matter Babbitt v. Surratt and Babbitt v. Walker, Captain Walker and Captain Surratt 

each testified that at the time of take-off, the only message on the ECAM was "LAF Degraded." 

LAF Degraded indicates that the Load Alleviation Function (LAF) is not operating correctly, and 

is for crew awareness only. 

18. If it is your belief that the pilots aboard the aircraft performed a successful flight control 

check for the flight, with respect to the checks for the spoilers, please explain all reasons why 

you hold this belief. 

Response: 

We object to this interrogatory on the grounds of relevance. Without waiving the objection, we 

state that during the matter Babbitt v. Surratt and Babbitt v. Walker, Captain Walker testified that 

he completed a successful flight control check for the flight, and Captain Surratt testified that his 

flight control check was deemed complete after the seemingly-spurious warnings were cleared. 

19. Identify and describe all reasons why during the flight the aircraft's left wing tip 

contacted the runway during the aircraft's first landing attempt. 

Response: 

Object on the grounds that it calls for speculation. Without waiving this objection, the force of 

gravity overcame the counteracting forces of lift with respect to the wing. 
20. Identify and describe what mechanical malfunctions in the aircraft, if any, occurred 

during the flight. 

Response: 

A copy ofthe aircraft log pages describing the mechanical malfunctions is attached. 

21. Identify and describe what errors were committed by the pilots during the flight, if any, 

that led to the aircraft's left wing tip contacting the runway during the flight. 

Response: 

None identified. 

22. Describe what impact, if any, the inoperative wing roll spoilers had on the pilots ability to 

maneuver the aircraft during the flight. 

Response: 

We object on the grounds that the spoilers were in maintenance mode - they were not 

inoperative. Inoperative means a system or component malfunction, and maintenance mode is 

different from a malfunction. Without waiving this objection we reply that the actual impact the 

wing roll spoilers had on the pilots ability to maneuver the aircraft during the flight is unknown. 

During flight, the aircraft needed to be trimmed and this may have been caused by the wing roll 

spoilers being in maintenance mode but the specific causal effect is unknown. 

23. Answer whether an amber LAP DEGRADED message on the ECAM is supposed to go 

off if spoiler 5 is inoperable. 

Response: 

We object on the grounds that this is argumentative and (as drafted) not relevant. There are 

many reasons why a LAP degraded message might appear. Without waiving this objection, 

Respondent states that spoiler five was part of the load alleviation function system. If spoiler 5 

were inoperable, then yes, this is one of the events that might cause an amber LAF DEGRADED 

message to appear on the ECAM. 
24. Please state whether the document attached as Exhibit I is an accurate recording of a 

conversation that Joe Miller, Director of Maintenance and Engineering for Brendan Airways 

LLC., d/b/a USA 3000 Airlines, had with an Aviation Safety Inspector employed with the FAA. 

Response: 

Although it appears to be generally accurate as to the inspector's perception, it is not a verbatim 

record of the conversation. 

25. If you disagree with the following statement found in Exhibit 1, or if you don't believe 

this statement was made by Mr. Miller, explain all reasons for your belief: "Carmot have both #3 

and #5 spoilers INOP." 

Response: 

We object to this question on the grounds that it misleadingly misstates the Joe Miller statement 

by taking the statement out of context. In context, the statement was limited to a response to a 

question about dispatching an aircraft known to have inoperative spoilers, pursuant to the 

USA3000 MEL. 

Taking the interrogatory at face value (in which the statement does not have its limiting context), 

we do disagree, because if a problem is discovered during flight, then the pilots are expected to 

refer to the Quick Reference Handbook (QRH) for instructions. If two sets of spoilers are 

discovered to be inoperative during flight, the QRH states that the pilots should confum that the 

intended landing site has a runway that is at least 1.25 times longer than the minimum runway 

requirement. The QRH provides no other operating instruction for inoperative spoilers. Thus, 

one could have two sets of inoperative spoilers during flight. 

26. Describe the relationship between AAR Aircraft Services and Brendan Airways, LLC, 

d/b/a USA 3000 Airlines, with regards to the aircraft in the time between April 1, 2008 and May 

17,2008. 

Response: 

AAR Aircraft Services was a maintenance vendor for USA 3000 Airlines. 

27. Answer whether or not you paid AAR Aircraft Services for maintenance performed on 

the aircraft between April 1, 2008 and May 17, 2008. 

Response: 

We object to this interrogatory on the grounds that it is ambiguous whether it is seeking 

information about maintenance performed during this period, or payment during this period. 

Without waiving the objection, the answer is yes, we paid AAR Aircraft Services for 

maintenance that was performed on the aircraft between April I, 2008 and May 17,2008. 
28. Answer whether or not International Leasing Finance Corporation (ILFC) paid AAR 

Aircraft Services for any maintenance performed on the aircraft between April I, 2008 and May 

17, 2008 and if payment was made identify what type of maintenance the payment was for. 

Response: 

Respondent objects to this interrogatory on the grounds that it seeks information outside of 

Respondent's knowledge that would pose an undue burden on respondent to obtain. Without 

waiving this objection, and following reasonable inquiry, Respondent does not know the answer 

to this question. 

29. Answer whether or not State Transport Company Russia (STCR) paid AAR Aircraft 

Services for any maintenance performed on the aircraft between April 29, 2008 and May 17, 

2008 and if payment was made identify what type of maintenance the payment was for. 

Response: 

Respondent objects to this interrogatory on the grounds that it seeks information outside of 

Respondent's knowledge that would pose an undue burden on respondent to obtain. Without 

waiving this objection, and following reasonable inquiry, Respondent does not know the answer 

to this question. 

Responses to Request for Admissions 

1. During the flight the aircraft's spoiler servo actuators for left wing roll spoilers three and 

five were in the maintenance mode. 

Response: Admitted 

2. When the aircraft's spoiler servo actuators for left wing roll spoilers three and five are in 

the maintenance mode the aircraft is not in a safe condition for flight. 

Response: We object to this request for admissions in that it seeks an opinion about safety that 

would require detailed engineering analysis using engineering data that is not in the possession 

of USA 3000, and that such an analysis would constitute an undue burden. Following reasonable 

inquiry, this is request is Denied for lack of knowledge. 

3. When the aircraft's spoiler servo actuators for left wing roll spoilers three and five are in 

the maintenance mode the aircraft does not conform to its type certificate and/or type design. 

Response: Denied 
4. When the aircraft's spoiler servo actuators for left wing roll spoilers three and five are in 

the maintenance mode the aircraft's left and right wing roll spoilers three and five are 

inoperative. 

Response: Denied 

5. When the aircraft's spoiler servo actuators for left wing roll spoilers three and five are in 

the maintenance mode the symmetrical spoiler surfaces three and five are inoperative. 

Response: Admitted 

6. Pursuant to the USA 3000 Airlines Minimum Equipment List the aircraft cannot be 

dispatched when two pair of symmetrical spoiler surfaces three and five are inoperative. 

Response: Admitted. 

7. Pages 2-27-10 and 2-27-11 of the USA 3000 Airlines Minimum Equipment List provide 

information as to the conditions under which the aircraft can be dispatched when one or more of 

the spoilers is inoperative. 

Response: Admitted 

8. Pages 2-27-10 and 2-27-11 of the USA 3000 Airlines Minimum Equipment List do not 

identify any conditions under which the aircraft can be dispatched when left wing spoilers three 

and five are inoperative. 

Response: Admitted 

9. Pages 2-27-10 and 2-27-11 of the USA 3000 Airlines Minimum Equipment List do not 

identify any conditions under which the aircraft can be dispatched when two pair of symmetrical 

surfaces 3 and 5 are inoperative. 

Response: Admitted 
10. The aircraft is not in a condition for safe operation when left wing and right wing roll 

spoilers No.3 and No.5, are inoperative. 

Response: We object to this request for admissions in that it seeks an opinion about safety that 

would require detailed engineering analysis using engineering data that is not in the possession 

of USA 3000. The requirement to perform such detailed engineering analysis using engineering 

data that is not in the possession of USA 3000 would be overly burdensome. Without waiving 

this objection, and following reasonable inquiry, this is request is Denied for lack of knowledge. 

11. During the flight, but prior to takeoff, the ECAM indicated on more than one occasion 

that the following wing roll spoilers were not operational and/or were locked out: left wing roll 

spoiler No.3; left wing roll spoiler No.5; right wing roll spoiler No.3; and right wing roll 

spoiler No. 5. 

Response: We object to this request for admission on the grounds that this is a compound 

statement. Without waiving this objection, paragraph 11 is admitted in part, to the extent that 

such a warning was visible on the ECAM during each rest of the spoiler elevator computers, but 

denied in part, in that the warning was cleared and reasonably deemed by the flight crew to be 

spurious, so it did not indicate a problem. 

12. At all times during the flight the aircraft was on the operations specifications of Brendan 

Airways, LLC d/b/a USA 3000 Airlines. 

Response: Admitted 

13. Brendan Airways, LLC d/b/a USA 3000 Airlines exercised operational control over the 

flight. 

Response: Admitted 

14. At the time of the flight Brendan Airways, LLC d/b/a USA 3000 Airlines was leasing the 

aircraft from International Leasing Finance Corporation (ILFC). 

Response: Admitted 
15. At the time of the flight Brendan Airways, LLC d/b/a USA 3000 Airlines' lease of the 

aircraft was nearing its end and the flight was undertaken as part of the process of the aircraft 

being transferred into the possession of a new lessee. 

Response: We object to this request for admission on the grounds that this is a compound 

statement. Without waiving the objection, the request is admitted. 

16. The new lessee is the air carrier State Transport Company Russia (STCR). 

Response: We object to this request for admission on the grounds that it is vague. Without 

waiving the objection, if the request is referring to the new lessee of the aircraft, then the request 

is Admitted. 

17. The flight was considered a "maintenance acceptance flight". 

Response: Admitted 

18. Prior to the flight, the livery of the new lessee (STCR) was painted on the aircraft. 

Response: Admitted 

19. Pursuant to the terms of the Brendan Airways, LLC d/b/a USA 3000 Airlines lease with 

ILFC the aircraft was required to be repainted before the aircraft left the possession of Brendan 

Airways, LLC d/b/a USA 3000 Airlines. 

Response: Admitted 

20. The spoiler servo actuators for left wing roll spoilers three and five were put in the 

maintenance mode during the process of painting the aircraft with livery of the new lessee 

(STCR). 

Response: Following reasonable inquiry, Respondent is unable to Admit or Deny this statement 

because Respondent has no specific knowledge of when the spoiler servo actuators for left wing 

roll spoilers three and five were put in the maintenance mode. Discovery from third parties into 

the factual basis of this statement is ongoing. 
21. The aircraft was painted with the livery of the new lessee, (STCR), by AAR Aircraft 

Services. 

Response: Following reasonable inquiry, Respondent is unable to Admit or Deny this statement 

because Respondent has no specific knowledge of who painted the livery of the new lessee, 

(STCR) on the aircraft. Discovery from third parties into the factual basis of this statement is 

ongoing. 

22. AAR Aircraft Services is a repair station that is the holder of an FAA Air Agency 

Certificate qualifying it to conduct operations under Part 145 of the Federal Aviation 

Regulations. 

Response: Admitted 

23. Prior to the flight, Brendan Airways, LLC d/b/a USA 3000 Airlines hired AAR Aircraft 

Services to perform maintenance on the aircraft so as to allow it to be returned to a condition that 

would permit it to be returned to ILFC. 

Response: Admitted 

24. Pursuant to the manuals of Brendan Airways, LLC d/b/a USA 3000 Airlines painting the 

aircraft could in some cases require that the spoiler servo actuators for spoilers three and five be 

put irl the maintenance mode. 

Response: Denied 

25. If the aircraft's ECAM system is working properly it will report that left and right wing 

roll spoilers three and five are inoperative when the spoiler servo actuators for left wing roll 

spoilers three and five are placed in the maintenance mode. 

Response: Denied 

26. At no time subsequent to the flight did an inspection of the ECAM system reveal that 

there was a problem with the system that could have caused it to malfunction just prior to takeoff 

during the flight. 

Response: Admitted 
27. Within two days after the flight the spoiler servo actuators on left wing roll spoilers three 

and five were again put in maintenance mode to see what messages would appear on the ECAM 

and the ECAM reported that left and right wing roll spoilers three and five were inoperable. 

Response: Admitted 

28. During the flight and prior to takeoff the pilots aboard the aircraft failed to complete a 

successful flight control check. 

Response: Denied 

29. During the flight and prior to takeoff the pilots aboard the aircraft failed to complete a 

successful flight control check because it was impossible for the spoilers to have reacted in 

response to inputs from the cockpit. 

Response: Denied 

RESPECTFULLY SUBMITTED this 22nd day of July, 2010. 

WASHINGTON AVIATION GROUP, PC AND THE 

LAW OFFICES OF JASON A. DICKSTEIN 

By~~~~~==~===-__ 

Jason Dickstein 

gton 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 
BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION 

The Honorable Chief Administrative Law Judge Ronnie A. Yoder 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines 

Respondent 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

RESPONSE TO COMPLAINANT'S 

FIRST SET OF INTERROGATORIES, 

REQUEST FOR ADMISSIONS, AND 

REQUEST FOR PRODUCTION OF 

DOCUMENTS 

The undersigned hereby certifies that she caused the attached 

• RESPONSE TO COMPLAINANT'S FIRST SET OF 

INTERROGATORIES, REQUEST FOR ADMISSIONS, AND REQUEST 

FOR PRODUCTION OF DOCUMENTS 

To be filed at the addresses listed below by ovemight FedEx service, on the date indicated 

below. 

Federal Aviation Administration 

600 Independence Avenue, SW 

(o e\&\N A L. (\JUT) 0 ~E. c..oP'r) Iq§-" 

Wilbur Wright Building - Suite 2WI000 

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 Counsel, EAL-7 

1 Aviation Plaza 

Jamaica, NY 11434 

Tel: (718) 553-3270 

Fax (718) 995-5699 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room E12-320 

US Department of Transportation 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Tel: (202) 366-2142 

Fax: (202) 366-7536 
\ 

~ - ffi 

THE US DEPARTMENT OF TRANSPORTATION ~ 

IVED A!MJffI The Hon REeE • 

rable Chief Administrative Law Judge Ronnie A. Yoder 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EAOO07 

SEP - 2 2010 In the matter of FAA Case No.: 2008EA 17003 8 

LTS -BRENDAN f RWAYS,LLC, 

EIS _ AMENDED ANSWER d/b/a USA 000 Airlines 

CRTS 

Responden 

Comes now the Respondent, Brendan Airways, LLC d/b/a USA3000 Airlines 

[hereinafter "USA3000"] and AMENDS its ANSWER in the above-captioned matter, 

previously filed June 16,2010, to include an AFFIRMATIVE DEFENSE that became 

ripe on August 24, 2010. 

For the convenience of the parties and the Court, the entire Answer is restated 

here as it was originally stated (with only the addition of the affirmative defense). 

This amendment is filed today because the affirmative defense became ripe on 

August 24, 2010, but Counsel felt the need to allow sufficient time to assure that no 

appeal was being filed and that the underlying matter upon which collateral estoppel is 

based had become final. 

I. Paragraph H(I) is admitted. 

2. Paragraph H(2) is admitted. 

EXHIBIT 

3. Paragraph H(3) is admitted in part, but denied to the extent that the use of the 

word "operated" implies anything other than an operational check of maintenance 

performed. 

4. Paragraph II(4) is admitted in part, to the extent that maintenance was performed, 

but denied in part, in that placement of spoiler servo actuators in the maintenance 

mode was not part ofthe maintenance performed on the aircraft. 

RESPONDENT's AMENDED ANSWER 

Page I 

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 
I' 

, 

5. Paragraph II(S) is denied to the extent that it implies a link between the 

maintenance and the spoiler servo actuators being placed in the maintenance 

mode. 

6. Paragraph II( 6) is admitted. 

7. Paragraph II(7) is denied. 

S. Paragraph II(S) is denied. 

9. Paragraph II(9) is admitted. 

10. Paragraph II(10) is admitted. 

II. Paragraph II(1I) is denied. 

12. Paragraph II(12) is admitted in part, to the extent that such a warning was visible 

on the ECAM, but denied in part, in that the warning was cleared and reasonably 

deemed by the flight crew to be spurious. 

13. Paragraph II(13) is denied. 

14. Paragraph II(14) is denied. 

15. Paragraph II(lS) is admitted. 

16. Paragraph II(l6) is admitted. 

17. Paragraph II(l7) is admitted. 

IS. Paragraph II(lS) is admitted in part, in that the landing was aborted, but denied to 

the extent that the paragraph claims a causal relationship. 

19. Paragraph II(19) is denied. 

20. Paragraph II(20) is denied. 

21. The Legal Conclusions of Paragraph III are denied. 

22. The Legal Conclusions Concerning Penalty found in Paragraph IV are denied. 

AFFIRMATIVE DEFENSE OF COLLATERAL ESTOPPEL 

23. Tony Scot Surratt and Frank William Walker were the pilots on the aircraft in this 

case. 

24. The Administrator brought claims against Surratt and Walker for violation of 

91.7(a), which is the same violation that is alleged in the case at bar. 

RESPONDENTs AMENDED ANSWER 

Page 2 

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 
25. The 91.7(a) issue decided in the prior adjudication is identical with the 91.7 and 

121.153 issues in this adjudication. 

26. The NTSB held that the Administrator did not prove that the pilots had the 

requisite knowledge to form the foundation of a violation. This decision was a 

judgment on the merits. 

27. The Administrator claimed that Surratt and Walker failed to comply with the 

applicable Minimum Equipment List (MEL). 

28. The MEL issue decided in the prior adjudication is identical with the 121.628 

issue in this adjudication. 

29. The NTSB held that the MELs did not apply to this situation, because the pilots 

did not have knowledge of the spoiler issues before the flight. 

30. The NTSB rejected a motion for reconsideration of its Order on June 25,2010. 

31. The prior adjudication became final on August 24, 2010, when the period for 

appeal lapsed without a notice of appeal. 

32. The Administrator was a party to the prior litigation. 

33. Application of estoppel in this case would not work an il\iustice to any party. 

RESPECTFULLY SUBMITTED this 30th day of August, 2010. 

WASHINGTON AVIATION GROUP, PC AND THE 

LA W ~~~~ES OF JASON A DICKSTEIN 

, I / ' 

! .~ 

By L,: r.J- ?-

... / Jason Dickstein 

W ashington 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 AMENDED ANSWER 

Page 3 

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 
BEFORE THE US DEPARTMENT OF TRANSPORTATION 

The Honorable Chie Administrative Law Jud e Ronnie A. Yoder 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

In the matter of FAA Case No.: 2008EA170038 

BRENDAN AIRWAYS,LLC, 

d/b/a USA3000 Airlines 

Responden 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that she caused the attached 

• AMENDED ANSWER 

to be filed at the addresses listed below by FedEx three-day service, on the date indicated 

below. 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building - Suite 2WI000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Ai:td 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 Counsel, EAL-7 

1 Aviation Plaza 

Jamaica, NY 11434 

Tel: (718) 553-3270 

Fax: (718) 995-5699 

CERTIFICATE OF SERVICE 

Page 4 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room E12-320 

US Department of Transportation 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Tel: (202) 366-2142 

Fax: (202) 366-7536 

August 31, 2010 

Date 

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 
, 

, 

" 

EXHIBIT I s 

U.S. DEPARTMENT OF lRANSPORTATION 

FEDERAL A VIA TION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of Brendan Airways, LLC 

DMS No. FAA-2009-0032 

FAA Docket No. CP09EA0007 

FAA Case No. 2008EA170038 

Chief Administrative Law Judge Yoder 

AMENDED COMPLAINT 

~ 

iii 

The Federal Aviation Administration (FAA), by counsel, hereby files its Amended 

Complaint, pursuant to Rule 208 of the Rules of Practice (14 C.F.R. 13.214), and 

states as follows: 

I 

Respondent, Brendan Airways, LLC, was advised through a Final Notice of 

Proposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount 

of $15,000. On January 2, 2009, Respondent submitted a written demand for a 

hearing. On January 14,2009, the Complainant filed a Complaint. 

II 

1. Brendan Airways, LLC (hereinafter "Brendan Airways", ''you'' or 

''your'') is the holder of Air Carrier Certificate No. U30A 762J. 

2. Pursuant to the above referenced air carrier certificate you are 

authorized to conduct operations under Part 121 of the Federal 

Aviation Regulations (FAR). 
3. On or about May 17, 2008, you operated an Airbus A320-212, 

(hereinafter "the aircraft"), identification number N265A V, on a flight 

that took off and landed at Miami International Airport, Florida 

(hereinafter "the flight"). 

4. Prior to the flight, maintenance was performed on the aircraft in which 

the spoiler servo actuators for left wing roll spoilers three and five 

were placed in the maintenance mode. 

5. Subsequent to the aforementioned maintenance the spoiler servo 

actuators for left wing roll spoilers three and five were not returned to 

the operational mode prior to the flight. 

6. Pursuant to the Airbus Maintenance Manual for this aircraft if the 

spoilers are left in the maintenance mode aerodynamic forces will 

caused unwanted movement of the spoiler. 

7. By virtue of the foregoing, you performed maintenance on the 

aircraft's left wing roll spoilers three and five without using the 

methods, techniques, and practices prescribed in the current 

manufacturers maintenance manual or Instructions For Continued 

Airworthiness prepared by its manufacturer, or other methods, 

techniques, and practices acceptable to the Administrator. 

8. . By virtue of the foregoing, you performed maintenance, without doing 

the work in such a manner that the condition of the aircraft, airframe, 

aircraft engine, propeller, or appliance worked on was at least equal to 

its original or properly altered condition. 

9. During the flight, the aircraft took off at approximately 1725 Universal 

Time Coordinated (UTC) and landed at approximately 2045 UTC. 

10. During the flight, but prior to takeoff, an amber "LAP DEGRADED" 

message was displayed on the aircraft's Electronic Centralized 

Aircraft Monitor (ECAM). 

11. The amber LAP DEGRADED message on the aircraft's ECAM 

comes on when th.ere is a failure of one of the aircraft's spoiler 

servojacks. 

2 
12. During the flight, but prior to takeoff, the ECAM indicated that the 

following wing roll spoilers were not operational and/or were locked 

out: 

a) left wing roll spoiler No.3; 

b) left wing roll spoiler No.5; 

c) right wing roll spoiler No.3; 

d) right wing roll spoiler No. 5 

13. During the flight, but prior to takeoff, the pilots operating the aircraft 

were aware that the aircraft's ECAM indicated that the following wing 

roll spoilers were not operational and/or were locked out: 

a) left wing roll spoiler No.3; 

b) left wing roll spoiler No.5; 

c) right wing roll spoiler No.3; 

d) right wing roll spoiler No. 5 

14. Pursuant to the aircraft's Minimum Equipment List (MEL) the aircraft 

cannot be dispatched when two pair of symmetrical spoiler surfaces 

three and five are inoperative. 

15. Notwithstanding the above, during the flight you operated the aircraft 

during takeoff and thereafter with the following inoperative 

instruments : 

a) left wing roll spoiler No.3; 

b) left wing roll spoiler No.5; 

c) right wing roll spoiler No. 3; 

d) right wing roll spoiler No.5 

3 
16. During the flight, and within twenty minutes after takeoff, the ECAM 

once again indicated that the following wing roll spoilers were not 

operational and/or were locked out: 

a) left wing roll spoiler No.3; 

b) left wing roll spoiler No.5; 

c) right wing roll spoiler No.3; 

d) right wing roll spoiler No.5 

17. During the flight, and the aircraft's first landing attempt at Miami 

International Airport, the aircraft's left wing tip contacted the runway 

causing damage to the left wing tip. 

18. Due to the above-referenced inoperable wing roll spoilers, during the 

flight, the first landing attempt was aborted. 

19. During the flight, the aircraft was operated m an unairworthy 

condition. 

20. During the flight, the aircraft was operated in a careless or reckless 

manner so as to endanger the life or property of another. 

III 

By reason of the foregoing facts and circumstances, Respondent violated the 

following section(s) of the Federal Aviation Regulations: 

4 
a. Section 43.l3(a), which states that each person performing 

maintenance, alteration, or preventive maintenance on an aircraft, 

engine, propeller, or appliance shall use the methods, techniques, and 

practices prescribed in the current manufacturer's maintenance manual 

or Instructions for Continued Airworthiness prepared by its 

manufacturer, or other methods, techniques, and practices acceptable 

to the Administrator, except as noted in §43.l6. He shall use the tools, 

equipment, and test apparatus necessary to assure completion of the 

work in accordance with accepted industry practices. If special 

equipment or test apparatus is recommended by the manufacturer 

involved, he must use that equipment or apparatus or its equivalent 

acceptable to the Administrator. 

b. Section 43. 13 (b), which states that each person maintaining or 

altering, or performing preventive maintenance, shall do that work in 

such a manner and use materials of such a quality, that the condition of 

the aircraft, airframe, aircraft engine, propeller, or appliance worked 

on will be at least equal to its original or properly altered condition 

(with regard to aerodynamic function, structural strength, resistance to 

5 
vibration and deterioration, and other qualities affecting 

airworthiness) . 

c. Section 91.7(a), which states that no person may operate a civil aircraft 

unless it is in an airworthy condition. 

d. Section 91.13(a), which states that no person may operate an aircraft in 

a careless or reckless manner so as to endanger the life or property of 

another. 

IV 

1. Pursuant to 49 U.S.C. §46301(a)(I), Respondent is subject to a civil 

penalty not to exceed $25,000 for each of the violations alleged, or, for a small 

business concern, pursuant to 49 U.S.C. §46301(a)(5), Respondent is subject to a 

civil penalty not to exceed $11,000 for each of the violations alleged. 

2. Under the facts and circumstances of this case, a civil penalty of$15,000 

is appropriate. 

6 
WHEREFORE, the FAA, by counsel, respectfully requests that the 

Administrative Law Judge enter an order that Respondent be assessed a civil penalty 

in the amount of $15,000. 

Respectfully submitted, 

Alfred R. Johnson, Jr. 

Regional Counsel 

By: 

David M. Cohen 

Attorney 

F ederal Aviation Administration 

I Aviation Plaza 

Jamaica, NY 11434 

718553-3270 

(718) 995-5699 

NOTE: 

The Rules of Practice for this proceeding are set forth in Part 13, 

Subpart G, of the Federal Aviation Regulations (14 C.F.R. Part 13). 

The Rules of Practice provide that Respondent must file a written 

response to this Amended Complaint, or a written Motion to Dismiss if 

appropriate, not later than 20 days after the date shown on the Certificate of 

Service. A general denial is deemed a failure to file an answer (Section 

13.209(e)). 

7 
CERTIFICATE OF SERVICE 

I hereby certifY that the foregoing Amended Complaint has been placed this date in 

the United States mail, postage prepaid, by Certified Mail - Return Receipt 

Requested addressed as follows: 

The Honorable Ronnie A. Yoder 

Chief of Administrative Law Judge 

Office of Hearings, M-20 

Room E12-320 

US Department of Transportation 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Jason Dickstein 

Washington Aviation Group, PC & Law Offices of Jason Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 

Federal Aviation Administration (Original and one copy) 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014 

Lisa Hooks 

Paralegal Specialist 

Federal Aviation Administration 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

8 
©©~~ I I 

EXHIBIT 

(; 

BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION .... ____ '/IIJIIIIIII 

The Honorable Chief Administrative Law Judge Ronnie A. Yoder 

In the matter of 

BRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines 

Respondent 

DMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

MOTION FOR SUMMARY 

JUDGMENT or DECISION and 

MOTION TO DISMISS 91.13(a) 

AMENDMENT TO COMPLAINT 

Comes now the Respondent, Brendan Airways, LLC d/b/a USA3000 Airlines 

[hereinafter "USA3000"] and MOVES the Administrative Law Judge to dismiss all 

charges against the Respondent. 

Following the recent amendment to the Complaint, there are two remaining 

charges under Part and two remaining charges under Part 43. The Part 91 charges are 

identical to those that were already decided in the related case Babbitt v. Surratt. By 

using collateral estoppel and the Babbitt v. Surratt, the Part 91 claims should be 

dismissed. The Part 43 allegations can be decided on the fact that the Administrator has 

admitted that he does not know key facts that would be necessary to support the Part 43 

allegations, including the fact that the Administrator cannot point to any maintenance that 

was incorrectly performed by USA 3000, and cannot draw a link between the spoiler 

issue and any maintenance performed by USA 3000. 

Contents 

I. Facts ............................................................................................................................. 3 

A. Introduction ........................................................................................................... 3 

B. The Administrator Fails to IdentifY What Maintenance Was Improperly 

Performed ........................................................................................................................ 4 

C. The Case Against the Pilots .................................................................................. 6 

II. Argument ..................................................................................................................... 7 

A. Standards for Dispositive Motion ......................................................................... 7 

I. Issues Previously Decided and Subject to Collateral Estoppel ......................... 8 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page I 

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 
2. Issues that Are Not Subject to Collateral Estoppel ........................................... 8 

B. The 91.7(a) Claim Must Be Dismissed Because of Collateral Estoppel .............. 9 

I. Elements of Collateral Estoppel ........................................................................ 9 

2. Analysis of Collateral Estoppel Argument With Respect to the 14 C.F.R. § 

91.7(a) Claim ............................................................................................................. 10 

C. The 91.l3(a) Claim Must Be Dismissed for Statute of Limitations Reasons 

(Motion to Dismiss ) ....................................................................................................... 14 

D. The 91.l3(a) Claim Must Also Be Dismissed Due to Collateral Estoppel 

(Motion for Summary Judgment) .................................................................................. 16 

I. The Issue Decided in the Prior Proceeding is Identical With the Issue 

Presented in the Second ............................................................................................. 16 

2. The Party Against Whom Collateral Estoppel is Asserted Was a Party in the 

Prior Litigation .......................................................................................................... 17 

3. The Prior Adjudication Ended in a Final Judgment on the Merits ................. 18 

4. The Administrator (the Party Against Whom the Doctrine is Asserted) Had a 

Fair Opportunity to Litigate the Issue Because the Administrator was a Party to the 

Prior Litigation .......................................................................................................... 18 

E. Conclusion of Collateral Estoppel Arguments ................................................... 19 

F. The 14 C.F.R. §§ 43.13(a) and 43.13(b) Claims Must Be Dismissed ................... 19 

I. Legal Standards for the Part 43 Claims ........................................................... 19 

2. The Administrator Bears the Burden to Demonstrate Significant Probative 

Evidence in Support of Its Position ........................................................................... 20 

3. The Administrator Does Not Say What Maintenance Was Performed 

Inadequately .............................................................................................................. 21 

4. The Administrator Does Not Knows Who Put the Spoilers In Maintenance 

Mode and Does Not Know How or When the Spoilers Were Put in Maintenance 

Mode 22 

5. Other Possible Causes Make it Inappropriate to Assume Causation .............. 24 

6. USA 3000 Did Not Perform the Maintenance that was Considered Inadequate 

25 

G. Statement Concerning Part 121 Claims .............................................................. 26 

III. Conclusion .............................................................................................................. 26 

CERTIFICATE OF SERVICE ...................................................................................... 28 

APPENDIX A: Potentially Moot Part 121 Arguments ..................................................... 29 

A.· The 14 C.F.R. §§ 121.153(a)(2) and 121.628(a)(5) Claims Must Be Dismissed 

Because the Flight Was Outside the Scope of Part 121 ............................................ 29 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page 2 

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. Application of the Collateral Estoppel Argument to the 14 C.F.R. 

§ 121.153(a)(2) Claim ................................................................................................... 32 

DECLARATION OF JOSEPH MILLER ......................................................................... 33 

Joseph Miller Exhibits ....................................................................................................... 38 

APPENDIX C: Judge Fowler's Decision in Babbitt v. Surratt ............................................ .. 

APPENDIX D: NTSB's Decision Affirming Babbitt v. Surratt (on appeal) ........................ . 

APPENDIX E: NTSB's Decision Affirming Babbitt v. Surratt (on reconsideration) .......... . 

APPENDIX F: Complainant's First Response to Respondent's First Set of Interrogatories, 

Requests for Production of Documents, and Requests for Admissions, Response to 

Interrogatories #1-13 (pages 1-4) ......................................................................................... . 

APPENDIX G: Complainant's Second Response to Respondent's First Set of 

Interrogatories, Requests for Production of Documents, and Requests for Admissions, 

Response to Interrogatory # 18 and Request for Production # 11.. ........................................ . 

r. Facts 

A. Introduction 

This is a case about an Airbus A320 aircraft known by U.S. registry N265A V 

["The Aircraft"]. The Aircraft was owned by ILFC, and it was operated under lease by 

USA 3000. See Declaration of Joseph Miller at ~~ 3-5. 

USA 3000's lease on The Aircraft was coming to an end. See id. at ~ 6. It is 

normal, at the end of such a lease, to put the aircraft into heavy maintenance in order to 

return it to the condition required by the lease. See id. At the end of the maintenance 

cycle, such a leased aircraft would be returned to the lessor. See id. at '11~ 6-10. In this 

case, this was exactly what was occurring in the Spring of 2008. Id. 

USA 3000 contracted with AAR to perform lease-end heavy maintenance on The 

Aircraft. See id. at ~ 6. The purpose of the heavy maintenance was to make The Aircraft 

ready to be returned to ILFC. See id. at ~~ 6-10. ILFC also contracted with AAR to 

perform certain work to make the aircraft ready for the next lessee (State Transport 

Russia). See id. at ~~ 34-35. 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page 3 

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 
On May 15, 2008, tests on the aircraft confirmed that the spoilers were in 

operational mode. See id. at ~~ 12-14. 

On May 17, 2008, The Aircraft was flown on a maintenance acceptance flight. 

Babbitt v. Surratt, EA-5514, 2010 NTSB LEXIS 31 at * I n.2 (March 23,2010). The 

maintenance acceptance flight was flown by two pilots - Captain Tony Scot Surratt and 

Captain Frank William Walker. A maintenance acceptance flight is an operational test of 

the maintenance performed. 14 C.F.R. § 91.407(b). 

[3. The Administrator Fails to Identify What Maintenance Was 

Improperly PerfoI"med 

In the Complaint, the Administrator claimed that: 

"Prior to the flight, maintenance was performed on the aircraft in which the 

spoiler servo actuators for left wing roll spoilers three and five were placed in 

the maintenance mode." Complaint at Allegation 4 of Section II. 

USA 3000 sought discovery on this allegation, and asked: 

"Interrogatory # I: Allegation 4 of section II of the Complaint contends that the 

spoiler servo actuators were placed in the maintenance mode during maintenance. 

On what date and during what maintenance operation were the spoiler servo 

actuators placed in the maintenance mode?" Respondent's First Set of 

Interrogatories, Requests for Production of Documents, and Requests for 

Admissions, Interrogatory # 1. 

The Administrator answered by admitting that: 

"the Complainant does not know the exact date of the maintenance ... the 

Complainant does not know during what maintenance operation the spoiler servo 

actuators were placed in the maintenance mode, however it appears that the 

maintenance was performed by AAR." Complainant's First Response to 

Respondent's First Set ofInterrogatories, Requests for Production of Documents, 

and Requests for Admissions, Response to Interrogatory # I. 

The part of this response that blames AAR for placing the spoilers in maintenance 

mode is inconsistent with documents produced by the Administrator in response to 

discovery in this case. In several FAA Program Tracking and Reporting Subsystem 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page 4 

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 
(PTRS) Data Sheet, provided in response to USA 3000's discovery request, the 

Administrator admit that the FAA's own investigators could not determine that any AAR 

employee put the spoilers in maintenance mode: 

"05-20-2008 TO 06-16-2008 - CONDUCTED INVESTIGATION REGARDING 

THE ALLEGED IMPROPER MAINTENANCE. COULD NOT PROVE THAT 

ANY AAR EMPLOYEE PERFORMED THE IMPROPER POSITIONING OF 

THE LEFT WING SPOILERS 3 AND 5 TO THE MAINTENANCE MODE." 

FAA PTRS record from Inspector LXC for EIR 2008S0190220 (all capitals in 

original) (Found in Appendix G to this Motion). 

The discovery evidence shows that the Administrator does not know who placed 

the spoilers in the maintenance mode; and the Administrator cannot show that any AAR 

employee placed the spoilers in the maintenance mode. This is a critical evidentiary 

failure, because there is also no evidence that any maintenance was incorrectly 

performed. Instead, the Administrator relies on the proposition that the spoilers were in 

maintenance mode, and works backwards toassume all of the other facts about the 

allegation - the relationship between performance of some maintenance and the spoilers 

arrival into maintenance mode (causation) is assumed, and also the proposition that 

maintenance was improperly performed (the alleged causal act) is also assumed. 

The Administrator cannot reasonably claim that he has found additional facts to 

support the allegation that USA 3000 performed maintenance incorrectly (allegation four 

in the Complaint), because in interrogatory #2, USA 3000 asked: 

Interrogatory #2: Please identifY all of the facts that you contend support 

Allegation 4 of section II of the Complaint. Respondent's First Set of 

Interrogatories, Requests for Production of Documents, and Requests for 

Admissions, Interrogatory #2. 

In response to this, the Administrator explained: 

Prior to the flight there were several indications in the cockpit suggesting that left 

and right wing roll spoilers 3 and 5 were not operational, during the flight these 

roll spoilers did not function, and after the flight it was determined through visual 

inspection that the spoiler servo actuators were placed in the maintenance mode. 

Complainant's First Response to Respondent's First Set of Interrogatories, 

Requests for Production of Documents, and Requests for Admissions, Response 

to Interrogatory #2. 

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It is clear that the Administrator's position is that the only evidence of any 

improper maintenance is the fact that the spoilers (in some identified way) ended up in 

maintenance mode. But nowhere in this answer does the Administrator specify any facts 

to support the allegation that USA 3000 performed maintenance incorrectly. And as we 

see in the enforcement case against the pilots, Judge Fowler disagreed with the 

Administrator's contention concerning pre-flight indications of failures. 

C. The Case Against the Pilots 

The Administrator brought certificate suspension actions, including 14 C.F.R. §§ 

91.7(a) and 91.1 3 (a) charges, against the two pilots on this flight. The matter was heard 

before the honorable Chief Judge Fowler. 

Judge Fowler found that the pilots did not know that the spoilers were inoperative 

at the time of take-off. See Babbitt v. Surratt, SE-18562, 2009 NTSB LEXrS 106 at *12, 

* 14, * 16 (September 2, 2009). He found that the pilots leaned that the spoilers were 

inoperative after take-off. rd. at * 13-* 14, * 17. He found that it was reasonable for the 

pilots to have continued their maintenance acceptance flight. Id. at *14, * 17-18. Judge 

Fowler noted that the pilots did not have knowledge of an unairworthy condition during 

the flight. rd. at * 1 O. Because the pilots did not have knowledge of an unairworthy . -

condition at the time of takeoff, there was no violation of 91. 7( a) at the time of takeoff. 

rd. at *14. Because the QRH permitted continued flight upon learning of inoperative 

spoilers, and no other resource provided contrary guidance, Judge Fowler held that there 

was no violation of91.7(a) after the time of takeoff. rd. at * 14-* 15. Judge Fowler 

specifically found that each pilot did not operate the aircraft in a careless manner so as to 

endanger the life or property of another and therefore did not violate 14 C.F.R § 

91.13(a). rd. at *14, *17-18. 

On appeal, the National Transportation Safety Board (NTSB) affirmed Judge 

Fowler's rulings. Babbitt v. Surratt, EA-5514, 2010 NTSB LEXIS 31 at *26-*27 (March 

23, 2010). The Board agreed that the pilots had the discretion to continue with the flight, 

and that the decision was reasonable. rd. at *26-*27. 

The Administrator petitioned for reconsideration of the Board's decision, and the 

Board affirmed their own decision. Babbitt v. Surratt, EA-5527, 2010 NTSB LEXIS 56 

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(June 25, 2010). On reconsideration, the Board clearly stated that the Administrator had 

failed to prove that the pilots had knowledge of an unairworthy condition prior to takeoff. [d. at *2. The Board explained that the evidence showed that the pilots had a 

"green" ECAM (free of error messages) prior to take-off. [d. at *6-*7. The Board stated 

that the pilots did not know, nor should they have reasonably known, that the aircraft was 

in an unairworthy condition. [d. at *9-* 1 O. The Board concludes that the pilots acted 

reasonably in their decisions (they did not act recklessly nor carelessly). Id. at *13. 

II. Argument 

A. Standards for Dispositive Motion 

The Administrative Law Judge shall grant a party's motion for decision if the 

evidence shows that (1) there is no genuine issue of material fact and (2) that the party 

making the motion is entitled to a decision as a matter oflaw. 14 C.F.R. § 13.218(£)(5). 

A Motion for Decision is adjudicated under the same standards as a motion for surnmary 

judgment. Summary judgment is appropriate when there is no genuine issue of material 

fact and the moving party is entitled to judgment as a matter oflaw (See 14 C.F.R. § 

13.218(£)(5); cf. Fed. R. Civ. P. 56(c» or when no reasonable decision-maker could 

return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 

248 (1986). 

One of the main purposes ofa summary judgment motion is to dispose of 

factually unsupported claims. See Anderson, 477 U.S. at 249; Celotex Corp. v. Catrett, 

477 U.S. 317, 323-24 (1986). In this motion, USA 3000 has the burden of showing that 

there is no genuine issue of material fact disputed by the parties. 14 C.F.R. § 

13.218(£)(5). Although the court must examine the evidence in the light most favorable 

to the non-moving party and draw all reasonable inferences in that party's favor, if (as in 

this case) there are no relevant facts supporting the non-moving party's position, there is 

nothing to construe in its favor. See. e.g. Griffith v William Penn Broadcasting Co., 4 

F.R.D. 475, 477 (E.D. Pa. 1945). A dispositive motion, and its opposition, may not rely 

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on a mere assertions or unsupported claims. In Re Horizon Air Industries, Fed. Av. Dec. 

1996-24. 

1. Issues Previously Decided and Subject to CoUatenli 

Estoppel 

In this case, the only material facts that are arguably in dispute are facts that have 

been decided in an earlier case and are subject to the doctrine of collateral estoppel. 

Because they have already been decided, the Administrator is estopped from denying the 

facts as they have been found in the earlier case. Thus, those material facts are not 

reasonably in dispute. 

In particular, the Administrator has already fully litigated the § 91.7(a) and § 

91.13(a) claims against the pilots of the Aircraft (claims III(c) and HI(d) of the Amended 

Complaint). The National Transportation Safety Board found that neither of those claims 

could be sustained against the pilots. As the pilots are the only relevant agents of the air 

carrier for purposes of these claims, no agent of the Respondent could have committed 

these violations and thus the Respondent did not commit these violations. 

2. Issues that Are Not Subject to Collateral Estoppel 

Except with respect to affirmative defenses, the Administrator bears the ultimate 

burden of proof in civil penalty cases. 14 C.F.R. § 13.224(a). 

On issues where the non-movant (the FAA, in this case) bears the ultimate burden 

of proof at trial, the non-movant may not defeat a motion for summary judgment by 

relying upon evidence that is "merely colorable" or "not significantly probative." 

Anderson, 477 U.S. at 249-50 (emphasis added). Accord Summers v. A. Teichert & Son, 

127 F.3d 1150, 1152 (9th Cir. 1997). To the contrary, the non-movant must present 

"significant probative evidence tending to support the complaint." Summers, 127 F.3d 

at 1152. Summary judgment should be granted against the complainant when the 

complainant "rest[ s] on his allegations ... without any significant probative evidence 

tending to support the complaint." Anderson, 477 U.S. at 249. 

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With respect to the Part 43 claims that the Administrator has alleged in this case, 

the Administrator cannot present significant probative evidence tending to support the 

allegations of the complaint. In fact, as discussed in this brief, the Administrator has 

admitted that after investigation, it still does not have any evidence to support allegations 

that would be necessary to proving a Part 43 claim against USA 3000, like whether USA 

3000 actually was the person who performed or authorized the 'inadequate maintenance' 

actions alleged in the Complaint! 

B. The 91.7(a) Claim Must Be Dismissed Because of Collateral 

Estoppel 

USA 3000 is a corporate entity and therefore its actions are the actions of its 

agents; its knowledge is the knowledge of its agents. 

USA 3000 had two agents on the aircraft who were operating the aircraft on 

behalf of the company. They were Captain Surratt and Captain Walker. The 

Administrator has already unsuccessfully brought certification actions against these two 

pilots. As part of the decision in those actions, the NTSB found that neither Captain 

S'urratt nor Captain Walker knew that the spoilers were in maintenance mode. 

Furthermore, the NTSB found it was reasonable that the pilots did not know of the 

spoilers being in maintenance mode. 

Based on lack of knowledge, the Board found that the two pilots could not have 

violated 91.7(a) because they did not know (or reasonably should have known) of the 

spoiler issues until they were in the air, and they did not know that the spoilers were in 

maintenance mode until after the flight was over. 

1. Elements of Collateral Estoppel 

Collateral estoppel prevents a party from relitigating an issue after the party has 

had a full and fair opportunity to present its case in a prior proceeding. It bars relitigation of an issue of fact or law that was actually litigated and resolved in a prior court 

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determination, even if the issue recurs in the context of a different claim. E,g, Taylor v. 

Sturgell, 553 U.S. 880,892 (2008). 

Collateral estoppel has four elements: 

1) the issue decided in the prior proceeding is identical with the issue presented in 

the second; 

2) the party against whom collateral estoppel is asserted was a party in a prior, 

actual, litigation; 

3) the prior adjudication ended in a final judgment on the merits; and, 

4) the party against whom the doctrine is asserted had a fair opportunity to litigate 

the issue (e.g. it was either a party to the litigation or in privity to a party). 

E.g. Syverson v. IBM, 472 F.3d 1072, 1078 (9th Cir. 2007); see also Parklane Hosiery 

Co. v. Shore, 439 U.S. 322 (1979), Blonder-Tongue Lab. v. Univ. of III. Found., 402 U.S. 

313,323-324 (1971). 

2. Analysis of Collater·,ll Estoppel Argument With Respect to 

the 14 C.F.R. § 91.7(a) Claim 

a) The Issue Decided in the Prior Proceeding is Identical 

With the Issue Presented in the Second 

In this case, the 14 C.F.R. § 91.7 allegation by the Administrator is identical to the 

14 C.F.R. § 91.7 issue that was raised in the prior Surratt and Walker case. See Babbitt v. 

Surratt, 2009 NTSB Lexis 106 (September 2,2009), affirmed on appeal EA-5514, 2010 

NTSB LEXIS 31 (March 23, 2010), motion for reconsideration denied EA -5527, 2010 

NTSB LEXIS 56 (June 25, 2010). The final decision of the trial judge, as well as the 

denial of the Administrator's appeal to the Board and the denial of the Administrator's 

motion for reconsideration are attached as appendices to this Motion. 

In both cases, the allegations are based upon a USA 3000 maintenance acceptance 

flight of an Airbus A320 on May 17,2008 from Miami International Airport. Compare 

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Babbitt v. Surratt, EA-5514, 2010 NTSB LEXIS 31 at *1 (March 23, 2010) (identifying 

the flight) with In the matter of Brendan Airways, LLC, FAA Docket No. CP09EA0007, 

Complaint at paragraph U(3) (January 14,2009) (identifying the same flight in the case at 

bar). Both the prior case and this case are dealing with the same flight. 

Both cases alleged that the flight in question was operated in an unairworthy 

fashion in violation of 14 C.F.R. § 91.7(a). Compare Babbitt v. Surratt, EA-5514, 2010 

NTSB LEXIS 31 at * I n.2 (March 23, 20 I 0) (explaining that the pilots were charged 

with violating section 91. 7(a) with respect to the maintenance acceptance flight) with In 

the matter of Brendan Airways, LLC, FAA Docket No. CP09EA0007, Complaint at 

paragraph III(e) (January 14,2009) (charging USA 3000 with violating section 91.7(a) 

with respect to the maintenance acceptance flight). 

Case law has held that an allegation of a section 91.7(a) violation (alleging 

unairworthy operation of an aircraft) has a knowledge element (it is not a strict liability 

offense). See Administrator v. Parker, 3 NTSB 2997, 2998 (1980); Garvey v. Frost, 

NTSB Order No. EA-4680 at 2 (July 01, 1998) (Docket SE-14781); Nunn v. Hinson, 

1994 WL 808076 (November 07, 1994) (NTSB Docket 207-EAJA-SE-13563). The 

b~havior of pilots charged with airworthiness violations should be measured by what the 

pilots knew or should have known about the aircraft, with this standard requiring the 

pilots to have reacted reasonably and prudently to information of which they are aware. 

Richards v. Olsen, NTSB Order No. EA-3743, 1992 WL 371359 at 2 (NTSB November 

23,1992) (Docket SE-10883). 

It has long been recognized that a corporation can only act through its officers and 

agents. li.& New York C. & H. R. R. Co. v. United States, 212 U.S. 481, 495 (1909); 

Fidelity & Deposit Co. v. Courtney, 186 U.S. 342, 361 (1902). The longstanding general 

rule is that a corporation is charged with the knowledge of the agent acquired by the 

agent in the course of the principal's business. E.g. Curtis, Collins & Holbrook Co. v. 

United States, 262 U.S. 215,222 (1923). 

Thus, in order to prove that USA 3000 has the requisite knowledge in order to be 

found culpable of a violation, the Administrator must prove that USA 3000's agents had 

the requisite knowledge. In other words, the corporation has no knowledge for purposes 

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of this analysis except the knowledge ofits own employees, the pilots who operated the 

aircraft. 

Surratt and Walker were the pilots on board the aircraft so their knowledge is the 

knowledge that must be used as the corporate knowledge. Respondent's Interrogatory 

# 19 in this matter asked 

"Is it the Administrator's contention that Respondent was aware, before take-off 

and during the flight, that the spoilers were not functioning properly ('aware')? If 

the answer to this question is 'yes,' then please identify each natural person who 

was 'aware' and identify any facts or evidence that supports the Administrator's 

claim that the individual was 'aware.'" 

The Administrator responded to that interrogatory with the following statement: 

"Both of the pilots who operated the aircraft during the flight either were aware 

that the aircraft's ECAM indicated that left and right wing roll spoilers 3 and 5 

were not operational. Furthermore if the pilots actually performed a flight control 

check they would have been aware that the spoilers were not functioning properly 

prior to takeoff. The facts are that the pilots admit they saw the ECAM 

indications, the ECAM system was functioning properly, if the ECAM system is 

functioning properly the ECAM will show that these spoilers are not operational 

if they are put in the maintenance mode, the flight control check requires the 

pilots to test the spoilers, and if the spoilers servo actuators for the spoilers are in 

the maintenance mode then the spoilers will not function during the flight control 

check." 

It is clear from this response that the Administrator agrees that the pilots' 

knowledge concerning the airworthiness issues in this case is the only knowledge that is 

relevant in this case. 

Because the pilots' knowledge was a critical deciding element of the prior case, 

and is a key element of the case at bar, the knowledge issue decided in the prior 

proceeding is identical with the knowledge issue that is presented in this matter. 

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b) The Party Against Whom Collateral Estoppel is 

Asserted Was (J Party ill the Prior Utigatioll 

The Administrator ofthe Federal Aviation Administration, against whom this 

collateral estoppel is asserted, was the Complainant in the Surratt and Walker case. The 

matter was actually litigated in a two-day trial. Babbitt v. Surratt, EA-55 14, 2010 NTSB 

LEXIS 31 at *1 (March 23, 2010). 

c) The Prior Adjlldication Ended in a Finaljudgment on 

the Merits 

Babbitt v. Surratt and Walker ended in a finaljudgrnent on the merits. See 

Babbitt v. Surratt, 2009 NTSB Lexis 106 (September 2, 2009). The Board denied both 

an appeal and a motion for reconsideration of the appeal. See Babbitt v. Surratt, EA5514,2010 NTSB LEXIS 31 (March 23,2010) (affirming on appeal), and Babbitt v. 

Surratt, EA-5527, 2010 NTSB LEXIS 56 (June 25, 2010) (motion for reconsideration 

denied). 

The final decision in the prior case was that Surratt and Walker - the two pilots 

flying the aircraft - did not have the requisite knowledge to support the contention that 

either had violated 14 C.F.R. § 91.7(a) by flying an unairworthy aircraft; the Board found 

that USA 3000's agents, the pilots, did not have the requisite level of knowledge to 

violate section 91.7(a). Babbitt v. Surratt, EA-5527, 2010 NTSB LEXIS 56 at *10 (June 

25,2010) (explaining that the pilots did not know that the aircraft was unairworthy, and 

they therefore did not have the requisite knowledge in order to satisfy the knowledge 

element ofa section 91.7(a) allegation). 

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d) The ,1dministmtor (the Party ilgainst WhoTII t'he 

Doctrine is Asserted) Had a Fair Opportunity to Litigate tile 

Issue Because the Administrator was a Party to tbe Prior 

Litigation 

The Administrator of the Federal Aviation Administration, against whom this 

collateral estoppel is asserted, vigorously argued the knowledge issue in the prior case. 

In fact, the Administrator appealed on that issue, and moved for reconsideration on the 

knowledge issue. See,!h&, Babbitt v. Surratt, EA-5527, 2010 NTSB LEXIS 56 at *9 

(June 25, 2010) (affirming that the pilots "did not know, nor should have known, that the 

aircraft was n an unairworthy condition"). Because the central issue upon which 

collateral estoppel is founded has been fully litigated and appealed, it would not be an 

injustice to rely n the prior ruling concerning this issue. 

In summary, the doctrine of collateral estoppel applies in this case because in a 

prior adjudication, the NTSB found that the pilots did not have the requisite knowledge to 

sustain an allegation of a 14 C.F.R. § 91.7(a) violation concerning the same flight that is 

at issue in this case. The Administrator's answer to interrogatory 19 makes it clear that 

there are no other agents through whom the USA 3000 could have acted, that would have 

h~ relevant knowledge related to the airworthiness of the aircraft. Consequently, USA 

3000 could not possibly have violated section 91.7(a) because none of its agents have the 

requisite knowledge to sustain such an allegation of violation. 

C. The 91.13(a) Claim Must Be Dismissed for Statute of 

Limitations Reasons (Motion to Dismiss) 

On October 19, 2010, the Administrator announced that he was amending the 

Complaint to include a 91.13( a) claim. This should be treated both as a Motion for 

Summary JudgmentlDecision and also as a Motion to Dismiss that is being filed in lieu of 

an Answer to the October 19 amendment. 

The Order of Chief Administrative Law Judge, served in this case on February 19, 

2009, required all amendments to be filed by April 20, 2009. This amendment failed to 

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meet that deadline. I Notice in the form of an answer would not be due until or unless this 

Motion to Dismiss was granted. Therefore this Motion to Dismiss the 9J.J3(a) claims 

takes the place of the Answer to the 91.13(a) claim. 

The underlying allegations of this case happened on or before May 17,2008. E.g. 

Complaint at 1 3. USA 3000 was not apprised that a section 9 J.J 3 (a) violation would be 

claimed as a part of this case until the October 19, 2010 Amendment. Such a claim was 

not part of any of the earlier pre-Complaint notices. Civil penalty claims must be 

initiated within the two-year statute oflimitations. 49 U.S.C.§ 46301 (d)(7)(C). A civil 

penalty action is initiated by sending a notice of proposed civil penalty to the person 

charged with a violation 14 C.F.R. § 13.J6(f). Notice of the 9J.J3(a) claim was not made 

until more than two years after the alleged event had occurred. The 91.13(a) claim must 

therefore be dismissed as untimely. 

The Administrator claims "inadvertent error" in failing to include the 91. 13 (a) 

allegation of violation. However, the Complaint was first served January 6, 2009, and it 

was a reproduction of the Notice of Proposed Civil Penalty that was first served August 

21,2008, so the Administrator's so-called error has been circulating for over two years. 

If this really was an inadvertent error, then it should have been corrected years ago . . 

Furthermore, there is NO claim that the reason for late-filing the claim was because the 

Administrator was unable to file it earlier. Because there is no reasonable basis for the 

delay, and because the Amendment violates the Court's Order of February 19,2009, the 

Court should not exercise any discretion in accepting the late-filed addition to the 

Complaint. The 9 J.J 3 (a) claim must be dismissed as untimely. 

I The Respondent also late-filed an amendment; but the Respondent had good cause. The Respondent filed 

notice of the defense of collateral estoppel on August 30th, 20 I 0, when that defense became ripe. This was 

after the 2009 deadline imposed by the Court's Order; however, the collateral estoppel argument did not 

become ripe until August 24,2010, when the time for appealing the underlying decision of the Board had 

passed (one ofthe elements of collateral estoppel is finality ofthejudgmentupon which collateral estoppel 

is based). 

The Respondent has not filed notice ofthe defense of collateral estoppel with respect to this cause of 

action under § 91.13(a), because the cause of action was not asserted until October 19,2010, after notice of 

that defense had been filed. This document serves as notice of the assertion of such a defense in response 

to the § 91.13(a) claim. 

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D. The 91.13(a) Claim Must Also Be Dismissed Due to 

Collateral Estoppel (Motion for SUlIImary Judgment) 

As with the § 91.7 claims discussed above, the § 91.13(a) claim was fully litigated 

in the prior Surratt and Walker case. See Babbitt v. Surratt, 2009 NTSB Lexis 106 

(September 2,2009), affirmed on appeal EA-55 14, 2010 NTSB LEXIS 31 (March 23, 

2010), motion/or reconsideration deniedEA-5527, 2010 NTSB LEXIS 56 (June 25, 

2010). 

The collateral estoppel argument that applies to the § 91.7 claim is incorporated 

by reference, and an abbreviated summary ofthe argument as it applies to the § 91.13( a) 

claim follows. 

1. The Issue Decided in the Prior Proceeding is Identical 

With the Issue Presented in the Second 

In this case, the 14 C.F.R. § 91.13(a) allegation by the Administrator is identical 

to the 14 C.F.R. § 91.1 3 (a) issue that was raised in the prior Surratt and Walker case. 

In both cases, the allegations are based upon the same USA 3000 maintenance 

acceptance flight of an Airbus A320 on May 17,2008 from Miami International Airport. 

Both allegations claim that the flight in question was flown in a careless or reckless 

manner. Compare Babbitt v. Surratt, EA-5514, 2010 NTSB LEXIS 31 at *1 n.2 (March 

23,2010) (explaining that the pilots were charged with violating section 9 1.1 3 (a) with 

respect to the maintenance acceptance flight) with In the matter of Brendan Airways, 

LLC, FAA Docket No. CP09EA0007, Amended Complaint at paragraph HI(d) (January 

14,2009) (charging USA 3000 with violating section 91.1 3 (a) with respect to the same 

maintenance acceptance flight). 

It has long been recognized that a corporation can only act through its officers and 

agents. E.g. New York C. & H. R. R. Co. v. United States, 212 U.S. 481, 495 (1909); 

Fidelitv & Deposit Co. v. Courtney, 186 U.S. 342, 361 (1902). The longstanding general 

rule is that a corporation is charged with the knowledge of the agent acquired by the 

agent in the course of the principal's business. 11& Curtis, Collins & Holbrook Co. v. 

United States, 262 U.S. 215, 222 (1923). 

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Thus, in order to prove that USA 3000 has the requisite knowledge in order to be 

found culpable of a reckless or careless flight violation, the Administrator must prove that 

USA 3000's agents had the requisite knowledge. In other words, the corporation has no 

knowledge for purposes of this analysis except the knowledge of its own employees, the 

pilots who operated the aircraft. 

Surratt and Walker were the pilots on board the aircraft so their alleged reckless 

or careless behavior would be the behavior that must be analyzed as the corporate 

behavior. 

In Paragraph 20 of the Complaint, the Administrator claimed "During the/light, 

the aircraft was operated in a careless or reckless manner so as to endanger the life or 

property oj another." Amended Complaint aQ[20 (October 19, 2010). In order to better 

gauge the scope and reason for the factual allegation, Respondent's Interrogatory #7 in 

this matter asked the Administrator to "Please identify all oJtheJacts that you contend 

support Allegation 20 oj section II oj the Complaint. " 

The Administrator responded to that interrogatory with the statement, "See the 

above and the Complaint." Neither the complaint nor the other answers to the 

interrogatories identify any person who acted in a careless or reckless manner. Only the 

pilots actions are described "above" the answer to interrogatory 7, so there is no other 

person whose behavior could reasonably be within the scope of what the Administrator 

claims to have been reckless or careless in the 91.13(a) claim. 

Because the pilots' behavior was a critical deciding element of the prior case, and 

is a key element of the case at bar, the reckless/careless behavior issue decided in the 

prior proceeding is identical with the reckless/careless behavior issue that is presented in 

this matter. 

2. The Parly Against Whom Colla teral Estoppel is Asserted 

Was a Party in the Prior Litigation 

The Administrator of the F ederal Aviation Administration, against whom this 

collateral estoppel is asserted, was the Complainant in the Surratt and Walker case. The 

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matter was actually litigated in a two-day trial. Babbitt v. Surratt, EA-55 14, 2010 NTSB 

LEXIS 31 at *1 (March 23, 2010). 

3. The Prior Adjudication Ended in a Final Judgment on the 

Merits 

Babbitt v. Surratt and Walker ended in a final judgment on the merits. See 

Babbitt v. Surratt, 2009 NTSB Lexis 106 (September 2, 2009). The Board denied both 

an appeal and a motion for reconsideration of the appeal. See Babbitt v. Surratt, EA5514,2010 NTSB LEXIS 31 (March 23,2010) (affirming on appeal), and Babbitt v. 

Surratt, EA-5527, 2010 NTSB LEXIS 56 (June 25, 2010) (motion for reconsideration 

denied). 

The final decision in the prior case was that Surratt and Walker - the two pilots 

flying the aircraft - did not act in a reckless or careless manner and therefore did not 

violate 14 C.F.R. § 91.13(a). Babbitt v. Surratt, SE-18562, 2009 NTSB LEXIS 106 at 

*14, * 17-18 (September 2, 2009) (specifically finding that each pilot did not operate the 

aircraft in a careless manner so as to endanger the life or property of another); see also 

Babbitt v. Surratt, EA-5514, 2010 NTSB LEXIS 31 (March 23,2010) (denying the 

FAA's appeal of the § 91.13(a) charge), and Babbitt v. Surratt, EA-5527, 2010 NTSB 

LEXIS 56 (June 25,2010) (denying the FAA's motion for reconsideration of the § 

91. 13(a) charge). 

4. The Administrator (the Party Against Whom the Doctrine 

is Asserted) Had a Fair Opportunity to Litigate tllc Issue Because 

the Administrator was a Party to the Prior Litigation 

The Administrator of the Federal Aviation Administration, against whom this 

collateral estoppel is asserted, vigorously argued the knowledge issue in the prior case. 

In fact, the Administrator appealed on that issue, and moved for reconsideration on the 

knowledge issue. See, Babbitt v. Surratt, EA-5527, 2010 NTSB LEXIS 56 (June 25, 

2010). Because the central issue upon which collateral estoppel is founded has been fully 

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litigated and appealed, it would not be an injustice to rely n the prior ruling concerning 

this issue. 

In summary, the doctrine of collateral estoppel applies in this case because in a 

prior adjudication, the NTSB found that the pilots on the flight did not act recklessly or . 

carelessly in violation of 14 CFR 91.13(a). The Administrator's answer to interrogatory 7 

makes it clear that there are no other agents through whom the USA 3000 could have 

acted, that the Administrator might claim acted recklessly or carelessly with respect to the 

case at bar. Consequently, USA 3000 could not possibly have violated section 91.13(a) 

because none of its agents acted in violation of that regulation. 

E. Conclusion of Collateral Estoppel Arguments 

In light of the fact that each of the elements of collateral estoppel have been met 

with respect to the above-described claims, the court should be bound by the prior factual 

findings of the NTSB with respect to this matter. 

e The Administrative Law Judge should find that the knowledge element of the 

airworthiness claim, which was fully litigated in the Surratt and Walker case, has 

been shown to be missing and that therefore the airworthiness claim under 91.7(a) 

must be dismissed; 

• The Administrative Law Judge should find that The Aircraft was not flown 

recklessly or carelessly, based on the full litigation of that issue in the Surratt and 

Walker case, and that therefore the reckless or careless flight claim under 91.13(a) 

must be dismissed; and 

• The Administrative Law Judge should hold that therefore the claims in this case 

brought under sections 91.7(a) and 91.13(a) should be dismissed. 

r. The 14 c.r.R. §§ 43.13(3) and 43.1.3(b) Claims Must Be 

Dismissed 

1. Legal Standm'ds for the Part 43 Claims 

The Administrator has alleged a violation of 14 C,F.R. § 43.13(a). That section 

states, in relevant part: 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page 19 

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 
(a) Each person performing maintenance, alteration, or preventive maintenance 

on an aircraft, engine, propeller, or appliance shall use the methods, techniques, 

and practices prescribed in the current mamifacturer's maintenance manual or 

Instructionsfor Continued Airworthiness prepared by its manufacturer, or other 

methods, techniques, and practices acceptable to the Administrator, except as 

noted in Sec. 43.16. 

In order to prove a violation of 14 C.F.R. § 43.13(a), the Administrator must 

allege (1) that the Respondent has used certain methods, techniques, or practices, and (2) 

that the Respondent's methods, techniques, or practices failed to meet a standard of the 

Administrator or were otherwise not acceptable to the Administrator. 

The Administrator has also alleged a violation of 14 C.F.R. § 43. 13(b). That 

section states: 

(b) Each person maintaining or altering, or performing preventive maintenance, 

shall do that work in such a manner and use materials of such a quality, that the 

condition of the aircraft, airframe, aircraft engine, propeller, or appliance 

worked on will be at least equal to its original or properly altered condition (with 

regard to aerodynamic function, structural strength, resistance to vibration and 

deterioration, and other qualities afficting airworthiness). 

As with the 43.l3(a) claim, an integral element to a 43.13(b) claim is the 

ailegation that the Respondent performed the maintenance. Section 43. 13 (b) only applies 

its performance standard to "each person maintaining or altering or performing 

preventative maintenance," so it must be necessary to identify a maintenance in order to 

find a violation. 

2. The Administrator Bears the Burden to Demonstrate 

Significant Probative Evidence in Support of Its Position 

Except with respect to affirmative defenses, the Administrator bears the ultimate 

burden of proof in civil penalty cases. 14 C.F.R. § 13.224(a). As discussed in section 

A.2 of this brief, supra, the Administrator has an obligation to present significant 

probative evidence in favor of its position. Despite this burden, the Administrator has 

failed to be able to even identify a maintenance operation that was incorrectly performed. 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page 20 

Washington A vialion Group, PC and the 

Law Offices of Jason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
Moreover, the alleged evidence of improper maintenance is limited only to the 

fact that two spoilers were placed in the maintenance mode, and the Administrator has 

admitted that he has no idea who placed the spoilers in the maintenance mode. 

The Administrator has admitted that he cannot point to any maintenance operation 

that was improperly performed, and he cannot prove that the spoilers were placed in the 

maintenance mode during any maintenance operation (as opposed to some sort of 

vandalism, or unrelated third party action, for example). 

3. The Administrator Does Not Say What Maintenance Was 

Performed Inadequately 

In the Complaint, the Administrator has completely failed to allege that USA 

3000 performed the maintenance in question. Instead of alleging that USA 3000 

performed maintenance, the Administrator states that maintenance was performed 

(Complaint at 4), and then offers the conclusion that "by virtue of the foregoing, [USA 

3000] performed maintenance." Complaint at ~ 7. The reason for this incomplete segue 

is simple. USA 3000 did not perform any inadequate maintenance in this case. 

In interrogatory #1, USA 3000 asked the Administrator to identify the improperly 

performed maintenance activity that is at the root of the Part 43 allegations: 

Interrogatory # I: Allegation 4 of section II of the Complaint contends that the 

spoiler servo actuators were placed in the maintenance mode during maintenance. 

On what date and during what maintenance operation were the spoiler servo 

actuators placed in the maintenance mode? 

The Administrator answered by admitting that 

"the Complainant does not know the exact date of the maintenance ... the 

Complainant does not know during what maintenance operation the spoiler servo 

actuators were placed in the maintenance mode, however it appears that the 

maintenance was performed by AAR." Complainant's First Response to 

Respondent's First Set of Interrogatories, requests for Production of Documents, 

and Requests for Admissions, Response to Interrogatory # I. 

It is obvious from this that the sole 'evidence' supporting the Administrator's 

allegation that some maintenance was performed improperly is the fact that the spoilers 

RESPONDENT'S MOTION FOR SUMMARY Washington Aviation Group, PC and the 

JUDGMENT Law Offices of Jason A. Dickstein 

Page 21 2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
were later found in the maintenance mode. But the spoilers could have been placed in 

that mode by non-maintenance personnel at the airport through a non-maintenance 

activity. The spoilers could have been placed in that mode during maintenance 

performed under the orders ofILFC (the aircraft owner who was taking possession of the 

aircraft after the maintenance was complete) and/or State Transport Russia (the next 

lessee), because ILFC had ordered work to be performed on the aircraft. The spoilers 

could have been placed in that mode by vandals. The conclusion that USA 3000 

maintenance must have been improperly performed merely because the spoiler servos 

were in the maintenance mode assumes that it was only during a USA 3000 maintenance 

activity that this "maintenance mode" switch may be activated; and this conclusion is 

simply not reasonable in light of the other possibilities. The Administrator's conclusion 

is actually unreasonable in light of the fact that the FAA has diligently investigated this 

case and was unable to identify any USA 3000 maintenance activity during which the 

spoilers could have been left in the maintenance mode. See supra at pp. 4-6 of this brief. 

The Administrator fails to say that the maintenance performed in this case was 

performed under the direction of USA 3000, because the task that was performed (and 

that led to the spoiler issue) was not performed under USA 3000's direction. 

-'I-. The Administrator Does Not Knows Who Put the Spoilers 

[n Maintenance Mode and Does Not Know How or When the 

Spoilers Were Put in Maintenance Mode 

No one knows who put the spoilers in maintenance mode. The FAA does not 

contend that USA 3000 performed improper maintenance themselves. The FAA 

contends that USA 3000 is responsible for AAR's actions, because AAR is USA 3000's 

maintenance contractor. The problem with this contention is that there is no evidence 

that AAR did anything wrong! 

In discovery, USA 3000 requested copies of relevant documents that the 

Administrator intends to put into evidence. The FAA's Program Tracking and Reporting 

Subsystem (PTRS) Data Sheet, provided in response to this discovery request, admit that 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page 22 

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 
the FAA's own investigators could not detennine that any AAR employee put the spoilers 

in maintenance mode: 

"05-20-2008 TO 06-16-2008 - CONDUCTED INVESTIGATION REGARDING 

THE ALLEGED IMPROPER MAINTENANCE. COULD NOT PROVE THAT 

ANY AAR EMPLOYEE PERFORMED THE IMPROPER POSITIONING OF 

THE LEFT WING SPOILERS 3 AND 5 TO THE MAINTENANCE MODE." 

FAA PTRS record from Inspector LXC for EIR 2008S0190220 (all capitals in 

original) (Found in Appendix G to this Motion). 

The PTRS record goes on to say: 

"DUE TO THE LACK OF DOCUMENTATION REGARDING WHEN, WHO, 

WHY AND HOW WERE THE SPOILERS POSITIONED IN THE 

MAINTENANCE MODE, IT IS NOT POSSIBLE FOR THIS INSPECTOR TO 

BLAME ANYONE FOR THE IMPROPER POSITIONING OF THE 

SPOILERS." FAA PTRS record from Inspector LXC for EIR 2008S0190220 

(all capitals in original) (Found in Appendix G to this Motion). 

A second PTRS record concerning the investigation was also provided in 

discovery. That document explains that the inspector interviewed management and 

employees, and checked work cards, and could find no circumstances in which noncompliant maintenance occurred. FAA PTRS record from Inspector LAB for EIR 

2008S0190220 (Found in Appendix G to this Motion). The inspector specified that the 

"investigation did not produce evidence of any wrongdoing on the part of AAR." Id. 

In addition, USA 3000's interrogatory 10 asked 

Interrogatory 10: Is it the Administrator's contention that the aircraft's left wing 

roll spoilers three and five were placed in the maintenance mode during 

maintenance perfonned by USA3000? 

In response to interrogatory 10, the Administrator replied: 

Pursuant to 14 C.F.R. § 121.363 it is the Administrator's contention that Brendan 

Airways is responsible for all maintenance perfonned on the aircraft. The 

Administrator does not know what individuals placed the left wing roll 

spoilers three and five in the maintenance mode prior to flight, however it is 

the Administrator's contention that Brendan Airways is responsible for this 

maintenance. [emphasis added]. 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page 23 

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 
The Administrator's documents shows that there is no evidence that AAR 

performed any maintenance improperly. The Administrator admits that he simply does 

not know who placed the spoilers in the inoperative mode. There is absolutely no 

evidence that anyone under USA 3000's control put those spoilers in maintenance mode. 

USA 3000's interrogatories 1-I3 all ask the Administrator to identify the 

maintenance activity that was improperly performed. The answers make it clear that the 

Administrator cannot point to any maintenance that was improperly performed. 

Complainant's First Response to Respondent's First Set of Interrogatories, requests for 

Production of Documents, and Requests for Admissions, Responses to Interrogatories # lB. In fact, the Administrator specifically admits that "[T]he Complainant does not know 

during what maintenance operation the spoiler servo actuators were placed in the 

maintenance mode." Complainant's First Response to Respondent's First Set of 

Interrogatories, requests for Production of Documents, and Requests for Admissions, 

Response to Interrogatory # 1. 

5. Other Possible Causes Make it Inappropriate to Assllme 

Causation 

If the Administrator cannot identify the causation of the alleged offense, then the 

Administrator is not free to ascribe culpability to anyone that is close. What the 

Administrator is trying to do here is akin to the doctrine of res ipsa loquitor, but res ipsa 

loquitor "does not apply when there is an intermediary cause which could have produced 

the injury." E.g. Sams v. Wal-Mart Stores, 228 Ga. App. 314, 316 (Ga. Ct. App. 1997) 

(refusing to permit a plaintiff to use res ipsa loquitur to fill the evidentiary gap, where 

there was only proof of the occurrence of an injury, without more, and holding that an 

injury alone "is insufficient to establish liability"). In this case, however, ILFC was 

having work performed on its aircraft (N265A V) under its direction, and this is just one 

of several possible intermediate actors that could have been the responsible causal 

sources of the switch from operational mode to maintenance mode. See Joseph Miller 

Declaration at ~'If 33-42 (explaining why it is possible that the spoilers were repositioned 

by ILFC's agents during ILFC painting). 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page 24 

Washington Aviation Group, PC and the 

Law Offices ofJ ason A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202-628-6776 
In addition, res ipsa loquitor requires proof of negligence in order to permit the 

assumption of causation, and there is no allegation of negligence on the part of USA 

3000. 

The evidence makes it clear that the Administrator does not know who placed the 

spoilers in maintenance mode. USA 3000 also does not know who placed the spoilers in 

maintenance mode. But investigations by AAR, USA 3000 and the FAA all confirm that 

there is no evidence that the spoilers were placed in maintenance mode during a 

maintenance activity performed by AAR. And the allegations of the complaint and of the 

discovery responses do not suggest that any other USA 3000 agent could have done this. 

If a principle is accused of the agent's malfeasance, but the accuser cannot prove 

the agent's malfeasance, then the principle cannot be culpable for non-existent allegations 

of malfeasance. Evidentiary law simply does not permit the Court to assume that a 

maintenance activity was improperly performed in the absence of any evidence of 

improper performance. 

6. USA 3000 Did Not Perform the Maintenance that was 

Considered Inadequate 

There is no allegation in this case that USA 3000 performed maintenance that 

lead to the spoilers being placed in maintenance mode. Instead, the allegation (as stated 

in the Administrator's answer to USA 3000's interrogatory two) seems to be that AAR 

performed maintenance, and that it was improperly performed. But there is no evidence 

of improper maintenance by AAR, and the FAA's own PTRS records and letters to AAR 

suggest that AAR committed no violation. Thus, it cannot be true that USA 3000 is 

liable for a violation committed by AAR as its maintenance contractor. 

The 14 C.F.R. § 43.13 claim must be dismissed, because the government cannot 

identify a maintenance activity that was improperly performed, and it cannot draw a 

connection between the spoilers being left in the maintenance mode and any maintenance 

activity performed by USA 300 or by any USA 3000 agent. 

RESPONDENTS MOTION FOR SUMMARY 

JUDGMENT 

Page 25 

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 
G. Statement Concerning Part 121 Claims 

Shortly before this Motion was filed, we received the Administrator's withdrawal 

of the Part 121 claims. This has mooted our (already-drafted) arguments concerning the 

Part 121 claims. We are mindful of the fact that the Court's February 19,2009 Order 

forbade late amendments, and for this reason, the mooted Part 121 claims have been 

included as an Appendix to this Motion. Please consider them to be asserted if and only 

if the Court chooses to reject the Administrator's withdrawal of the Part 121 claims. 

III. Conclusion 

The Part 91 claims found in the Amended Complaint have both been fully 

litigated against the pilots (who are the only relevant agents of USA 3000), and the NTSB 

found that (I) the pilots did know about the spoiler malfunction before the aircraft took 

off, (2) the pilots acted reasonably in continuing the maintenance acceptance flight after 

obtaining knowledge of the spoiler malfunction, and (3) the pilots did not act recklessly 

or carelessly with respect to the flight. For purposes of the case against USA 3000, the 

pilots were the only relevant agents of USA 3000 with respect to the Part 91 allegations 

against USA 3000. Under the doctrine of collateral estoppel, the Part 91 claims have 

already been decided against the Administrator, and therefore the Administrator is 

estopped from raising the same Part 91 issues against USA 3000. 

The Part 43 claims found in the Amended Complaint both assume that USA 3000 

acted through AAR in violating the maintenance standards. But the Administrator cannot 

point to any maintenance activity that was improperly performed, and the Administrator 

has no evidence to support the contention that the spoilers were positions to the 

maintenance mode during a maintenance operation performed by USA 3000 or under 

USA 3000's direction. The two Part 43 allegations against USA 3000 should also be 

dismissed. 

For the reasons stated above, the four claims found in the Amended Complaint 

should be dismissed. 

RESPONDENT'S MOTION FOR SUMMARY 

JUDGMENT 

Page 26 

Washington Aviation Group, PC and the 

Law Offices ofJ asOD A. Dickstein 

2233 Wisconsin Avenue, NW, Suite 503 

Washington, DC 20007 • Tel: 202·628-6776 
RESPECTFULLY SUBMITTED this 22nd day of October, 2010. 

WASHINGTON A VIA nON GROUP, PC AND THE 

LAW OFFICES OF JASON A DICKSTEIN 

By ____ -+~ __________________ __ 

Jason Dickstein 

hington Aviation Group, PC and the 

w 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 MOTION FOR SUMMARY 

JUDGMENT 

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 

Page 27 
BEFORE THE US DEPARTMENT OF TRANSPORTATION 

The Honorable Chie Administrative Law Jud e Ronnie A. Yoder 

DMS No.: F AA-2009-0032 

In the matter of FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EAI70038 

BRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines 

Responden 

CERTIFICATE OF SERVICE 

The undersigned hereby certifies that she caused the attached 

• 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 2WIOOO 

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 

methbd, on the date indicated below. 

David M. Cohen, Attorney 

Federal Aviation Administration 

Office of the Regional Counsel, EAL-7 

1 Aviation Plaza 

Jamaica, NY 11434 

Tel: (718) 553-3270 

Fax: (718) 995-5699 

CERTIFICATE OF SERVICE 

Page 28 

The Honorable Ronnie A. Yoder 

Chief Administrative Law Judge 

Office of Hearings, M-20 

Room E12-320 

US Department of Transportation 

1200 New Jersey Avenue, SE 

Washington, DC 20590 

Tel: (202) 366-2142 

Fax: (202) 366-7536 

October 22,2010 

Date 

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 
BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION 

The Honorable Chief Administrative Law Judge Ronnie A. Yoder 

[n the matter of 

OMS No.: FAA-2009-0032 

FAA Docket No.: CP09EA0007 

FAA Case No.: 2008EA170038 

EXHIBIT 

7 

BRENDAN AIRWAYS, LLC, 

d/b/a USA3000 Airlines DECLARATION OF JOSEPH MILLER 

Respondent 

I, JOSPEPH MILLER, under penalty of perjury, declare as follows: 

I. I am an employee of Brendan Airways, which does business under the name USA 

3000 Airlines. 

2. I serve as the Director of Maintenance for USA 3000. 

3. Prior to April 2008, USA 3000 had been operating an A320 aircraft bearing US 

registry N265A V ("the Aircraft" or "N265A V"). 

4. The Aircraft was owned by International Lease Finance Corporation ("ILFC"). 

5. The Aircraft was leased by ILFC to USA 3000. 

6. During the Spring of 2008, the lease on the Aircraft was coming to an end, so 

USA 3000 hired AAR Corp to perform lease-end heavy maintenance on the aircraft in order to 

be able to return it to the lessor (ILFC) at the end of the lease. 

7. The maintenance on N265A V at AAR took place during April 2008 and May 

2008. 

8. The maintenance performed by AAR for USA 3000 was performed according to 

USA 3000's written instructions for completing the work. 

9. There is no evidence that AAR diverged from the work instructions provided by 

USA 3000, in completing the USA 3000 work. 

APPENDIX B (Declaration of Joe Miller) 

Page 33 

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 
10. At the time that the Aircraft was provided to AAR to perform lease-end heavy 

maintenance, USA 3000 had no further intent that the aircraft would ever again be operated for 

revenue service by USA 3000, because the lease was coming to an end. 

11. On May 15,2008, we moved the aircraft and performed an engine check as part 

of the movement, because that sort of check is normal to perform before taxiing. 

12. During the May 15, 2008 engine check, we also checked the control surface 

operation because that is a normal pre-movement check. 

13. The May IS, 2008 control surface operation check included a check of the 

spoilers (as well as other control surfaces). 

14. The May 15, 2008 control surface operation check was successful, with no 

failures and no error messages. I can therefore verify that the spoilers were operational during 

this check. 

15. On May 17,2008, Captain Frank William Walker and Captain Tony Scot Surratt 

were tasked with performing a maintenance acceptance test flight ofthe Aircraft. 

16. The maintenance acceptance test flight of the Aircraft was operated out of Miami 

International Airport (MIA) - it departed and returned to MIA. 

17. Walker and Surratt were both employees of Brendan Airways, which does 

business under the name USA 3000 Airlines. 

18. Captain Surratt, Captain Walker and I reviewed the release to service 

documentation, and then the two pilots proceeded to the aircraft, where they each performed a 

separate walk around to ensure that the aircraft was in proper condition 

19. It is not possible to see whether the spoilers are in maintenance mode from the 

ground. 

20. After the walk-around, the pilots entered the cockpit. 

21. During the maintenance acceptance flight, I was present in the cockpit. 

APPENDIX B (Declaration of Joe Miller) 

Page 34 

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 
22. During the maintenance acceptance flight, the pilots discovered that two sets of 

the spoilers were inoperative. 

23. After discovering the spoiler malfunction during the flight, the pilots consulted 

the guidelines found in the Quick Reference Handbook (QRH) for two sets of spoilers 

inoperative. 

24. The QRH manual called for a normal landing at full flaps, with no speed increase, 

when two sets of spoilers are inoperative. It also includes a mUltiplier for minimum runway 

length, which MIA easily met. No further guidance is provided in the QRH for two sets of 

inoperative spoilers. 

25. After landing, we analyzed the aircraft and found that two of the spoilers were in 

maintenance mode. 

26. We communicated with AAR about this finding (spoilers found in maintenance 

mode). 

27. AAR reported to us that AAR performed a complete review oftheir 

documentation to identify when the spoilers could have been placed in the maintenance mode. 

28. Based on their review, AAR concluded that they could find no circumstances 

under which the spoilers could have been placed in the maintenance mode during an AAR 

maintenance operation. 

29. AAR informed USA 3000 that the FAA had dropped the investigation of AAR 

when it became clear that there was no evidence that anyone from AAR placed the spoilers in 

maintenance mode. 

30. We performed a review of the maintenance operations performed by AAR on 

N265AV, including a review of the maintenance records. 

31. We could not find any point during the maintenance in which the spoilers could 

have been left in the maintenance mode, because operational checks of the spoilers made it 

impossible for the spoilers to have been left in the maintenance mode before May 15, 2008. 

APPENDIX B (Declaration of Joe Miller) 

Page 35 

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 
32. Because of the May IS, 2008 successful control surface operation check, we 

believe that it is likely that the spoilers were placed in the maintenance mode between that May 

ISth check and the May 17th flight. 

33. No USA 3000 maintenance was scheduled to be performed on the Aircraft 

between the operational check on May ISth and the flight on May 17th. 

34. Immediately before the maintenance acceptance flight, there was evidence that 

AAR had performed work on the Aircraft on the orders of ILFC, the aircraft owner. 

3S. Work performed by AAR for ILFC was not performed under USA 3000 

instructions, and was not performed under USA 3000's control. 

36. Through discovery, we have obtained a copy of the April 16, 2008 agreement 

between AAR and ILFC for the work performed on N26SA Vat ILFC's direction. That 

Agreement is attached as an exhibit to this Declaration. 

37. Through discovery, we have obtained a copy ofthe Invoice sent by AAR to ILFC 

for the work performed on N26SA V at ILFC's direction. That Invoice is attached as an exhibit to 

this Declaration. 

38. Through discovery, we have obtained a copy ofthe Parts Consumption Report by 

AAR to ILFC for the work performed on N26SA Vat ILFC's direction. That Parts Consumption 

Report lists parts consumed during the work performed on N26SA V at lLFC's direction, and it is 

attached as an exhibit to this Declaration. 

39. The Parts Consumption Report makes it clear that paint was among the suppliers 

bought and consumed for N26SA V under lLFC's direction. 

40. I believe, but I cannot prove, that the spoilers were placed in the maintenance 

mode by painters who painted the livery of State Transport Russia on the Aircraft between May 

ISth and May 17th. 

41. USA 3000 paid for the fuselage to be painted, but USA 3000 was not responsible 

for painting the wings (and did not cause the wings to be painted). 

APPENDIX B (Declaration of Joe Miller) 

Page 36 

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 
42. It is normal for the leasing company to order work done on Ihe:I.'4111ii 

the end of a lease. so that the aircraft can be made ready for the next lessee. 

43. Painting of the next lessee's livery on the Aircrafi wings (where the spoilers are 

located) was done at ILFC's expense and according to ILFC's instructions. 

I declare under penalty of perjury under the laws of the United States that the 

foregoing is true and correct. 

APPENDIX B (Declaration of Joe Miller) 

Page 37 

EXECUTED on the 22nd day of October, 2010. 

Joe Miller 

US 000 Director of Maintenance 

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 
10/01/07 

I 

i 

EXHIBIT 

g 

2150.38 

"a business entity organized for profit, with a place of business located in the U.S., and which 

operates primarily within the U.S. or which makes a significant contribution to the U.S. 

economy through payment of taxes or use of American products, materials or labor." 13 

C.F.R. § 121.105. The S8A regulations further define small business concern in tables, 

describing each kind of entity by its economic activity or industry, and listing the limit for 

small by annual receipts or, more commonly, number of employees. (The size limits generally 

are established under the North American Industry Classification System (NAICS).) For the 

complete list, see 13 C.F.R. § 121.201 or the SBA's website at www.sba.gov. Thus, if a person 

meets the definition of business concern and has annual receipts or the number of employees 

within the applicable SBA limit, it is a small business concern, and the FAA will determine the 

civil penalty using the applicable range. Limits for common aviation entities follow (in 

numbers of employees, unless otherwise noted). 

Manufacturing 

Aircraft - 1,500 employees 

Aircraft engine and part - 1,000 employees 

Other aircraft part and equipment - 1,000 employees 

Air transportation 

Scheduled passenger-I,500 employees 

Scheduled freight - 1,500 employees 

Nonscheduled passenger- 1,500 employees 

Nonscheduled offshore marine passenger - $25.5 million annual receipts 

Nonscheduled freight - 1,500 employees 

Nonscheduled offshore marine freight - $25.5 million annual receipts 

Other nonscheduled - $6.5 million annual receipts 

Support activities - $6.5 million annual receipts 

Flight Training - $23.5 million annual receipts 

Airport operations 

Airport operator, organized for profit - $6.5 million annual receipts 

Other operations, excluding air traffic control- $6.5 million annual receipts 

Note that the following guidance uses large business concern for some civil penalty ranges. 

That is not a statutory or regulatory term for purposes of FAA enforcement. It includes each 

business concern that exceeds the maximum limit for small business concern, as well as any 

other entity that does not meet the definition of "small business concern." 

c. Civil Penalty Ranges. For the purpose of this table, when civil penalty action is 

recommended and described as Minimum, Moderate, or Maximum, the penalty ranges are 

defined in subparagraphs (I) through (9) of this paragraph. Note that the middle of each 

recommended sanction range would be for a single violation without aggravating or mitigating 

factors. 

8-2 
EXHIBIT 8/12/2008 11 :00:47 AM 

MYFAA 

Employee Site MYfMHom~ 

Reports Data Analysis Data Validation PTRS DCL Comments Admin Help OfT Home exit 

VIS Air Operator Profile 08/12/2008 

Go To PrevPage Go To Param Page Go To Main Report 

DBA Information 

Operator Name DSGN DBA 

BRENDAN AIRWAYS LLC U30A USA 3000 AIRLINES 

Certificate Information 

No Description Value Comment 

1 Certificate Number U30A762J 

2 Certificate Holdiog District Office EA17 

3 FAR 121 

4 Certificate Type Air Carrier 

5 Certificate Status Active (A) 

6 Certificate Issue Date 12/2112001 

7 Certificate Status Date 12/21/2001 

8 Certificate Validation Date 07117/2008 

9' Certificate Expiration Date 

10 Last DO Update Date 07/1512008 

11 Previous Designator 

12 Previous Certificate Number . . o Jperation Infi ormation 

No Description Value Comment 

1 Operation DFG 

2 Kinds of Operation Domestic and Flag (P AXlCargo) 

3 Types of Operation 

4 Areas of Operation Central Region 

Eastern Region 

Great Lakes Region 

New England Region 

Southern Region 

5 Excemptions Authorized Yes 

6 Deviations Authorized No 

7 Reliability Program Authorized No 

8 Crewmernber Training Contracts out most or all training 

9 Airworthiness Agreement Contracts out a moderate amount of maiotenance 

ProfileWithLinkColor· 
8/12/200811:00:47 AM 

10 jHazardous Materials Carried INo 

K e' 0 Iperator P enonne I 

No Name Title Address City State Postal Code Country FTS Phone Phone 

335 BISHOP 

1 HOLLOW NEWTOWN PA 19073 US RDSUITE SQUARE 

100 

335 BISHOP 

2 HOLLOW NEWTOWN PA 19073 US ROADSUITE SQUARE 

100 

335 BISHOP 

3 HOLLOW NEWTOWN PA 19073 US 61032512! ROADSUITE SQUARE 

100 

4 EASTMAN, DIRECTOR OF 61032512! JOHNW. OPERATIONS 

DIRECTOR OF 335 BISHOP 

5 GUHIN, SAFETY AND HOLLOW NEWTOWN PA 19073 US 61032512! JOSEPHM. REGULATORY ROADSUITE SQUARE 

COMPLIANCE 100 

KINNEAR, CHIEF 

5 OPERATING 61032512! ANGUS OFFICER 

LYONS, 

7 WARNER C[IIEF PILOT 61032512! 

T. 

MILLER, DIRECTOR OF ~ JOSEPHF. MAINTENANCE 61032512! 

III 

335 BISHOP 

) MULLEN, PRESIDENT HOLLOW NEWTOWN PA 19073 US 61032512! JOHN J. ROADSUITE SQUARE 

100 

335 BISHOP 

0 MULLEN, PRESIDENT HOLLOW NEWTOWN PA 19073 US 610359651 JOHN J. ROADSUITE SQUARE 

100 

NEIL, CHIEF 1 CHARLES INSPECTOR 61032512~ 

D. 

'EO Address 

CEO Name CEO Address CEO State Country Phone Extension Foreigh Phone 

335 BISHOP NEWTOWN t1ULLEN, HOLLOW SQUAREPA US 6103596518 OHNJ ROADSUITE 

100 19073 

'ther Operator Personnel 

No I Description Value 

rofile WithLinkCo1or 
8/12/200811:00:47 AM 

'. 

1 PIC Captains 68 

2 Other Pilots 65 

3 Flight Engineer 0 Examiners 

4 Flight Engineers 0 

5 Pilot Examiners 0 

6 Check Ainnen 14 

7 Aircrew Program 0 Designees 

8 Flight Attendants 170 

9 Dispatchers 9 

10 Navigators 0 

11 Inspectors 4 

12 Designated 40 Inspectors 

13 Non-Certificated 0 Mechanics 

14 Certificated 70 Mechanics 

15 Repainnen 0 

16 Total Number of 595 Employees 

CHDOP' rmC1Pa . Is 

No Description Value Comment 

1 POI EA17LOJ 

2 PMI EA17CMK 

3 PAl EA17EfS 

Fleet 

No MMS No_AC FAR FAR135_CLASS TURBINE VFR DAY Comm_svc FAR121]AX_DEMO FAR129~ 

1 A-320- 9 121 179 214 

Total 

2 Number 9 0 of 

Aircraft 

Contractors 

No Name Type Dsgn Far Address City State Postal Code Country Phone FAX In. 

1 AEROFRAME Maintenance U6FR 145 SERVICES LLC 

2 AIR CRUISERS Maintenance PX1R 145 CO 

AIRBUS NORTH 

3 AMERICA Pilot X2BX 142 CUSTOMER Training 

SERVICES INC 

Profile WithLinkCo1or 
8/12/2008 11 :00:47 AM 

4 BAESYSTEMS Maintenance OZFR, 145 CONTROLS INC 

Pilot 4501 

5 CAE INC Training C~X 142 AIRPORT DENVER CO 80239 

WAY 

6 EMPIRE AERO Maintenance EPHR 145 CENTER 

FLIGHT 3401 

7 TRAINING Pilot F3.IX 142 QUEBEC DENVER CO 80207 US INTERNATIONAL Training 

INC STREET 

8 GEONWING Maintenance GE.OR 145 SUPPORT INC 

9 GEENGINE Maintenance LYZR, 145 SERVICES INC 

10 Total Number of 9 Contractors 

Environmental Activity 

No Region Oper Main Base Maint Main Base Others AIIFlicilities 

1 CE 0 1 0 I 

2 EA 1 3 0 4 

3 GL 0 4 0 4 

4 Total 1 8 0 9 

E· nVlronment alA nalYSlS I . 

No FSDO CHD(} Airport Far Status NumberFlights OperInsp Maintlnsp AvionInsp 

1 CE03 EA17 STL 121 A 56 CE03TDY CE03CDA CE03TDY 

2 EA07 EA17 BWl 121 A 48 EA07TDY EA07TDY EAQ7TDY 

3 EA17 EA17 PHL 121 A 100 EA17LOJ EA17CMK EA17EPS 

4 EA25 EA17 EWR 121 A 60 EA25AAA EA25GJB EA25GJB 

5 EA63 EA17 BDL 121 A 20 EA63EHO EA63HEC EA63HEC 

6 GL23 EA17 DTW 121 A 48 GL23TDY OL23TDY GL23TDY 

7 GL23 EA17 TOL 121 A 48 GL23TDY GL23TDY GL23TDY 

8 GL25 EA17 CLE 121 A 52 GL25TDY GL25TDY GL25TDY 

9 GL31 EA17 ORD 121 A 200 GL3lTDY GL31TPY GL31TDY 

10 Total 632 

Enviromental Aircrafts 

No FSDO CHDO ENV Aircraft MMS Num aircraft Operlnsp MaintInsp Avionlnsp 

1 CE03 EA17 A-320-214 A-320-214 9 CE03TDY CE03TDY CE03TDY 

2 EA07 EA17 A-320 A-320-214 9 EAQ7TDY EA07TDY EA.07TDY 

3 EA17 EA17 A-320-214 A-320-214 9 EA17LOJ EA17EPS EA17EPS 

4 EA25 EA17 A-320-214 A-320-214 9 EA25AAA EA25GJB EA25GJB 

5 EA63 EA17 A-320-214 A-320-214 9 EA63EHO EA63HEC EA63HEC 

6 GL23 EA17 A-320-200 A-320-214 9 GL23TDY GL23TDY GL23TDY 

7 GL23 EA17 A-320-214 A-320-214 9 GL23Tpy GL23TDY GL23TDY 

8 GL25 EA17 A-320-214 A-320-214 9 GL25TDY GL25TDY GL25TDY 

ProfileWithLinkColor 
19 IOL31 IEAl7 IA-320-214 

i 

IA~320-21419 

Waivers 

I No WAIVER 

Comments 

No COMMENT 

MT CONTRONL: 

1 610-325-1294 OR 

610-325-180811 

2 OCC 610-325-

188711 

3 II 

8/12/200811:00:47 AM 

IOL31TDVI6dJTOVIOL3tTQyI 

Go To PrevP. Go To Param Page I Go To Main Report I 

Analysis for FSAS/TAP Client Version 2.50 (07/0112008), Server Version 2.0 (05/0112006) Server: analysis.avs.faagov 

.~ Federal Aviation ~ Administration . 

Profile WithLinkColor 

G S't Readers & OV 1 es 

USA.gov Viewers 

DOT Intranet I!I !!I ~ I!!ll:;l 

Updated: 4:30 pm ET July 01 2008 

D .... ,... ... r: _c r: 
EXHIBIT 

fO 

10/01/07 2150.38 

(I) VIOLATION COMMITTED BY U.S. AIR CARRIERS OR U.S. COMMERCIAL 

OPERATOR. 

CLASSIFICATION OF AIR CARRIER AND OPERATOR 

GROUP I - Each air carrier operating under part 121 or part 135, with an annual operating 

revenue of $ 100,000,000 or more. Operating revenue is determined by reference to DOT's 

"Air Carrier Industry Scheduled Service Traffic Statistics Quarterly." See 

http://ostpxweb.dot.gov/aviation/index.html, and click on "Airline Financial Review." 

GROUP II - Each air carrier or commercial operator operating under part 121 with an annual 

operating revenue ofless than $100,000,000, or under part 135 with an annual operating 

revenue ofless than $100,000,000, if the 135 operator has 50 or more pilots and 25 or more 

aircraft on its operations specifications. Operating revenue is determined by reference to 

DOT's "Air Carrier Industry Scheduled Service Traffic Statistics Quarterly." 

GROUP III - Each air carrier or commercial operator operating under part 135 with 6 to 49 

pilots or 6 to 24 aircraft. 

GROUP IV - Each air carrier or commercial operator operating under part 135 with no more 

than 5 pilots and no more than 5 aircraft. 

GROUP I -large business concern 

Maximum 

Moderate 

Minimum 

$18,750-$25,000 

$10,000-$18,749 

$2,000-$9,999 

GROUP I - small business concern (for violations covered under 49 U.s.C. 

§ 46301 (a)(5)(A»: 

Maximum 

Moderate 

Minimum 

$8,250-$11,000 

$4,400-$8,249 

$1,100-$4,399 

GROUP I - small business concern (for violations covered under 49 U.S.C. § 46301 (a)(1 )(A) 

or (B) but not under 49 U.S.c. § 46301 (a)(5)(A»: 

Maximum 

Moderate 

Minimum 

$850-$1,100 

$650-$849 

$500 $649 

GROUP II-large business concern: 

8-3 
AIRLINE 

QUARTERLY 

FINANCIAL 

REVIEW 

FIRST QUARTER 2009 

PASSENGER NATIONALS 

~ --~o U nn\\\l\}\l~\ln\\\lnl\1J.\lI1\l!l~~\l(j1l n n nUlll\\HlIlIHH)IHHI ~ 

/ . 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF AVIATION ANALYSIS 

COMPETITION AND POLICY ANALYSIS DIVISION 

Ii EXHIBIT 

i 11 

i 
1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

28 

29 

30 

31 

32 

33 

34 

QUARTERLY FINANCIAL & TRAFFIC REVIEW 

SYSTEM OPERATIONS 

USA 3000 Airlines 

QUARTER ENDED 12 MONTHS ENDED 

ITEMS 2009/03 2008/03 2009/03 2008112 2008/09 2008/06 

FINA~CIAL RESULTS: ($Millions) 

Operating Revenues 64.1 83.1 230.9 249.9 254.0 256.9 

Operating Expenses 54.0 82.0 226.5 254.6 271.8 274.1 

Operating Profit (Loss) 10.1 1.1 4.3 -4.7 -17.7 -17.3 

Net Income (Loss) 10.4 1.1 3.2 -6.2 -18.7 -18.1 

TRAFFIC; {Thousands} 

RPMs - Scheduled Svc. 537.6 605.9 1,676.4 1,744.7 1,850.0 1,930.1 

ASMs - Scheduled Svc. 707.6 744.9 2,158.1 2,195.4 2,304.0 2,416.0 

Overall RTMs (All Svc.) 54.0 67.4 174.1 187.5 202.5 212.8 

Overall ATMs (All Svc.) 76.3 88.8 239.5 252.0 269.7 285.0 

YIELD & UNIT COST ~ PROFITS: (Cents) 

Operating Revenue per RTM 118.6 123.2 132.6 133.2 125,4 120.7 

Operating Expense per RTM 99.9 121.6 130.1 135.7 134.2 128.8 

Operating Profit (Loss) per RTM 18.7 1.6 2.5 -2.5 -8.7 -8.1 

Operating Expense per ATM 70.8 92.4 94.6 101.0 100.8 96.2 

Passenger Revenue per RPM 2.85 5.38 4.74 5.54 5.72 5.61 

FINANCIAL R8TiO§!: 

Operating Revenues to Tolallnvestment 0 0 999.90 999.90 999.90 999.90 

Times Interest Earned 0 0 2.81 -3.71 -19.41 -23.48 

Current Assets to Current Liabilities 0 0 1.20 0.81 0.92 0.92 

No. of Days Cash Coverage of Cash Exp. 0 0 28.7 15.5 10.5 15.9 

FINANCIAL PoRCENTAGoS: 

Operating Profit (Loss) to Operating Revenue 15.8 1.3 1.9 -1.9 -7.0 -6.7 

Net Income 10 Stockholders Equity 0 0 

Corporate Relurn on Investment 0 0 0.0 0.0 0.0 0.0 

Debt to Total Investment 0 0 -25.8 -7.8 -9.0 -13.8 

PASSENGER LOAD FACTOR: jSch. Svc. %} 

Actual 76.0 81.3 77.7 79.5 80.3 79.9 

Breakeven 23.2 78.5 73.0 83.8 95.2 94.0 

Emg:lo:iment & Productivit:i: 

Employment, Total Weighted Avg CY 531 624 547 571 588 601 

Overall RTM's per Employee (000) 101.7 108.1 318.3 328.4 344.4 354.1 

CHANGE OVER COMPARABLE PERIOD 12 MONTHS EARLIER 

Operating Revenues (%) -22.9 21.4 -9.8 3.6 6.6 6.5 

Operating Expenses (%) -34.2 26.6 -15.8 1.1 12.3 12.6 

Operating Profit (Loss) (in Millions $) 9.0 -2.6 17.4 5.8 -13.9 -15.0 

Net Income (Loss)(in Millions $) 9.3 -2.3 16.9 5.3 -13.9 -14.8 

RPMs (Sch. Svc.) (%) -11.3 17.4 -14.3 -6.6 0.2 4.6 

ASMs (Sch. Svc.) (%) -5.0 8.8 -13.1 -9.4 -6.2 -2.4 

Operating Revenues per RTM (%) -3.7 2.0 12.5 14.0 7.2 1.9 

Operating Expense per RTM (%) -17.9 6.4 5.0 11.3 12.9 7.7 

Passenger Revenue per RPM (Sch. Svc.)(%) ·47.0 -59.0 -14.1 -27.7 -35.5 -47.0 

29 

2008/03 

255.9 

269.0 

-13.1 

-13.7 

1,957.0 

2,484.2 

217.1 

294.7 

117.9 

123.9 

-6.0 

91.3 

5.52 

999.90 

-20.00 

0.65 

10.1 

-5.1 

0.0 

-27.6 

78.8 

89.4 

594 

365.5 

7.4 

11.3 

-9.7 

-9.2 

4.7 

-0.6 

1.8 

5.5 

-55.1 
10101/07 I~ 2150.38 

Fig. B-I-e. Maintenance and Inspection Organization Civil Penalty Certificate 

Action 

(I) Failure to provide or maintain a maintenance and Maximum Indefinite 

inspection organization Suspension 

until an 

appropriate 

maintenance 

and 

inspection 

organization 

is provided to 

Revocation 

Fig. B-I-f. Training Program Civil Penalty Certificate 

Action 

(I) Failure to have training program Maximum Indefinite 

Suspension 

until 

compliance 

to 

Revocation 

(2) Failure to maintain training program Moderate to Maximum 

(3) Failure to train personnel adequately Moderate to Maximum 

Fig. B-I-g. Maintenance or Aircraft Paperwork Civil Penalty Certificate 

Action 

(l} Incomplete or unsigned release Minimum to Maximum 

_(21 Failure to revise ale data after repair Moderate to Maximum 

Fig. B-I-h. Performance of Maintenance Civil Penalty Certificate 

Action 

(I) By unauthorized person Maximum 

(2) Failure to perform or improper maintenance Moderate to Maximum 

Fig. B-I-i. SFAR 36 Civil Penalty Certificate 

Action 

(I) Failure to comply - second offense Maximum 

Fig. B-1 oj. Records and Reports Civil Penalty Certificate 

Action 

_l J) Deliberate violation 

(a) Intentionally false or fraudulent entry, Revocation 

reproduction, or alteration in record or 

report 

(b) Other 180-day 

Suspension 

to 

Revocation 

8-13 
EXHIBIT 

I) 

10101/07 2150.38 

Fig. B-I-j. Records & Reports cont. Civil Penalty Certificate 

Action 

(2) Failure to make accurate mechanical interruption summary Moderate to Maximum 

report 

(3) Failure to make available report of major alteration or Moderate to Maximum Indefinite 

repair Suspension 

to 

Revocation 

(4) Failure to make accurate mechanical reliability report Moderate to Maximum 

(5) Failure to make required entry in aircraft log Minimum to Maximum 

(6) Failure to make available pilot record Moderate to Maximum Indefinite 

Suspension 

to 

Revocation 

(7) Failure to make available load manifest Moderate to Maximum Indefinite 

Suspension 

to 

Revocation 

(8) Failure to monitor and record enroute radio communication Moderate to Maximum 

Fig. B-I-k. Dispatch and Flight Release Rules Civil Penalty Certificate 

Actiou 

(I) Any violation of subpart U of 14 CFR part 121 Moderate to Maximum 

Fig .. B-I-I. Operation of un airworthy aircraft Civil Penalty Certificate 

Action 

(1) Technical non-conformity to TC; no likely effect on safe Minimum 

oJleration 

(2) Non-conformity to TC that may have, or has, adverse Moderate to Maximum 

effect on safe olleration 

(3) Release of aircraft without required equipment Moderate to Maximum Up to 7-day 

suspension 

Fig. B-I-m. Provisions specific to passenger-carrying Civil Penalty Certificate 

Action 

(I) Boarding, or serving alcoholic beverage to, a person who Maximum 

appears to be intoxicated 

(2) Failure to brief passengers Moderate to Maximum 

(3) Failure to ensure seat and belt for each passenger Maximum 

(4) Operation wlo operable public address system Maximum 

. (51 Failure to store baggage properly Moderate 

Fig. B-l-n. Provisions specific to flight deck crew Civil Penalty Certificate 

Action 

(1) Use of crewmember with expired medical certificate Minimum to Moderate 

(2) Failure to make flight deck seat available to authorized Maximum 

enroute inspector 

8-14