U.S. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE OF HEARINGS

WASHINGTON, D.C.**--------------------------------~~--------~~,** In the Matter ofBrendanAirways, LLC**~**'; FAADocket No. CP09EA0007 DMS No. FAA-FAA-2009-0032 ChiefAdministrative LawJudge Yoder 

### COMPLAINANT'S MOTION FORDECISION I 

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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 OFTHECASE The Complainant issued a Notice ofProposed Civil Penaltyto Brendan Airways, LLC (herein after "theRespondent") onAugust 21, 2008. OnDecember 22, 2008, the Complainantissued a Final Notice ofProposed Civil Penalty and onJanuary 2, 2009, the Respondent submitted a written demand for a hearing. The Complainantfiled a Complaint

onJanuary 14,20091
, and onFebruary 12,2009Respondent filed a Partial Motionto Dismiss and For a More Definite Statement (hereinafter "the Respondent's Partial Motionto Dismiss") pursuantto 14 C.F.R. §§13.218(f)(l), 13.218(f)(2), and 13.218(f)(3). OnMarch 12,2009,the Complainantfiled Complainant'sAnswerto Respondent's Partial Motionto Dismiss. Through the Order ofChiefAdministrative LawJudge Ronnie A. Yoder Denying Respondent's Partial Motion To Dismiss TheComplaintAndFor 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**~** <'-I

### servedJune 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 Respondentfiled an Answerto the Complaint and onJune 22, 20I0the Complainant issued

a Discovery Request. OnJuly 22, 20I0, the Respondent filed its Response to Complainant's First Set OfInterrogatories, RequestForAdmissions, AndRequest For Production ofDocuments3• 

### On August 31, 2010, the Respondent filed an Amended Answer to the Complaint 4 

### and on October 19, 2010, the Complainantfiled anAmended Complaint 5• 

### On October 22, 2010, the Respondent filed a Motion For Summary Judgment or Decision and Motion to Dismiss 91.13(a) Amendment to Complaint6

. 

### Accompanyingthis Motion is the DeclarationofJoe 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 paragraphlI(l) ofthe Complaint See Exhibits 1 and 4) 2. The Respondent is authorized to conduct operations under Part 121 ofthe Federal Aviation Regulations (FAR). (Respondent's Amended Answer Response to paragraphlI(2) ofthe 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 ofJoseph 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 ofJosephMiller).

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 ofJoseph Miller See Exhibit 7). 7. During the Spring of2008, the lease on the aircraftwas 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 ofJoseph Miller See Exhibit 7). 8. The maintenance on the aircraft at AAR took place during April 2008 and May 2008. (Declaration ofJoseph 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, RequestNo. 19 See Exhibit 3) 10. Prior to the flight the livery ofthe 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 ofthe 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, RequestNo. 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 1and 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 ifthe 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) ofthe Complaint See Exhibit 1and 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, RequestNo.5 See Exhibit 3)
317. Pursuant to the aircraft's Minimum Equipment List (MEL) the aircraft cannot be dispatched when two pair ofsymmetrical spoiler surfaces three and five are inoperative. (Respondent's response to the Complainant's Request For Admissions, RequestNo.6 ofthe Complaint See Exhibit 3)



### STANDARD FOR SU1v11v1ARY JUDGMENT The Department ofTransportation is not requiredto provide a hearing ifthere are
no disputed material issues offact. Matter ofABG Caulking Contractors, Inc. DMS No. FAA-2005-22888. (2006) citing Pennsylvaniav. Riley, 84 F.3d 125, 130 (3d Cir. 1996). An evidentiary hearing before an administrative lawjudgeneed notbeconducted if all material issues offact canbe adequatelyresolved onthe basis ofthe writtenrecord before the agency. ABO supra citing Knott v. FERC, 386 F.3d 368 (lstCir. 2004); Delta AirLines v. Department ofTransportation, 51 F.3d 1065 (D.C. Cir. 1995). Underthe Ru1es ofPractice governing this proceeding, a party maymake a motion for decision regarding all or any part oftheproceedings at anytime before the administrative lawjudgehas issued an initial decision inthe proceedings. 14 C.F.R. § 13.218(f)(5). The Ru1es say thatthe administrative lawjudge shall grant a party's motion for decision ifthe pleadings, depositions, answers to interrogatories, admissions, matters thatthe administrative lawjudge has officiallynoticed, orevidence introduced duringthe hearing showthatthere is no genuine issue ofmaterial fact and that the party making the motion is entitledto a decision as a matter oflaw. Id. The partymaking the motion for decision has the burden ofshowing thatthere is no genuine and disputed issue ofmaterial fact. Id. ABO supra Motions for decision, are analogous to motions for summaryjudgmentunder Rule 56 ofthe Federal Ru1es ofCivil Procedure (FRCP). ABO supra citing Horizon Air


### 4Industries, Inc" FAA OrderNo. 96-24, at 6 n.3 (Aug. 13, 1996). The standard for deciding

a summaryjudgmentmotionunderthe 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 ourview, the plain language ofRule 56(c) mandates the entry ofsummary judgment, after adequate time for discovery and uponmotion, against a party who fails to make a showing sufficientto establishthe existence ofan element essential to that party's case, and on whichthatparty will bearthe burden of proofattrial. In such a situation, there can be no "genuine issue as to any material fact," since a complete failure ofproofconcerning an essential element ofthe nonmovingparty's case necessarily renders all other facts immaterial.

Ona motion for summaryjudgment, all evidence and inferences are to be viewed inthe lightmost favorable to nonmoving party; however, a nonmoving party may notrest upon
mere denials orallegations inpleadings, butmust setforth specific facts sufficientto raise genuine issue for trial. ABG supraciting Citizens State BankofBig Lake v. Transamerica Ins. Co., 815 F.Supp. 309 CD.Minn. 1993).

STATEMENT OFTHE ISSUES I. WhetherAny GenuineIssue OfMaterialFactExistsAsTo Whetherthe RespondentViolated 14 C.F.R. §§91.7(a)? 

### TI. WhetherAny GenuineIssue OfMaterialFactExists AsTo Whetherthe RespondentViolated 14 C.F.R. §§91.13(a)? 

### TIl. WhetherAny GenuineIssue OfMaterialFactExists AsTo Whether the RespondentViolated 14 C.F.R. §§43.13(a) and 43.13(b)? IV. WhetherTheRespondent Should BeAssessed A CivilPenalty of$15,000?

ARGUMENT 

### 1. Based OnThe Undisputed Facts The RespondentViolated 14 C.F.R. §§91.7(a) As Alleged InThe 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, Florida 9• 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 inthe maintenance model0; 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 ifthe spoilers are left in the maintenance mode aerodynamic forces will cause IlIl:wanted movement ofthe 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 surfacesthree 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 ofJosephMiller 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, RequestNo.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, RequestNo.5. See Exhibit 3. 14 Respondent's response to the Complainant's Request For Admissions, RequestNo.6. See Exhibit 3.
6demonstrate 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 ofDelta Airlines, Inc., FAA OrderNo. 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), ifan instrument or piece ofequipment is inoperable, then the airworthiness certificate for the aircraft is ineffective. Delta supra at 1. Inthe 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 ofmaterial 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, howeverthe 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 ofknowledge alone exempts air carriers from responsibility could provide air carriers with incentive to look the other way and avoid ail knowledge ofmaintenance improprieties I9 ." 

### Thus, pursuant

15 See Exhibit 6, 16 Pursuant to the Administrator's Decision and Order InAlaskaAirlines 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.
8to 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 ofmaterial 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 OnTheUndisputed Facts TheRespondent Violated 14 C.F.R. §91.13(a) As Alleged InThe Complaint Ample legal authority exists indicating that absent extraordinary circumstances, careless orreckless operation follows as a residual violation once operation ofan unairworthy aircraft is established. In The Matter ofAce Pilot Training. FAA Order No. 2005-12 at 5 (August 15, 2005) citing In the Matter ofUSAir. Inc
.. FAA Order No. 1992- 70 at 6 (December 21, 1992). For this reason as 

### ithas alreadybeen demonstrated that the Respondent operatedthe aircraft while itwas in anunairworthy condition it follows that Respondent shouldbe 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 OnThe Undisputed Facts TheRespondentViolated 14 C.F.R. §§43.13(a) and 43.13(b) As Alleged InThe Complaint Through allegations 4 through 8 ofCount II in the Complaint, as well as paragraph (a) and (b) ofCount III, the Complainant alleges thatthe Respondent performed improper maintenance onthe aircraft inviolation ofsections 43.13(a) and 43.l3(b). Specifically, it is alleged that: 1) priorto the flight, maintenance was performed onthe 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 ofSection 91.7(a) for owners and operators ofaircraft. Specifically, similar to Section 121.563, pursuantto 14 C.F.R. §91.403 "the owner ofoperator ofan aircraft is primarily responsible for maintaining that aircraft in an airworthy condition." See In The Matter ofAce Pilot Training. FAA OrderNo. 2005-12 (August IS, 2005).
9the spoiler servo actuators for left wing roll spoilers three and five were placed inthe maintenance mode; and 2) subsequentto the aforementioned maintenance these spoiler

servo actuators were not returned to the operational mode priorto the flight. As stated above, the Respondenthas admitted that: 1) priorto the flight the spoiler

servo actuators for left wing roll spoilers three and five were placed inthe maintenance mode21 ; 2) these spoiler servo actuators were notreturned to the operational mode prior to the flight22; and 3) during the flight these spoiler servo actuators were inthe maintenance mode23

. The Respondent has also stated: "we have never claimed that the placement ofleft wing roll spoilers three and five in the maintenance mode was notpart ofany maintenance performed onthe aircraft
...Our contention is that the placement ofleft wing roll spoilers three and five inthe maintenance mode was notpart ofany maintenance that w!ls ordered by, or within the control of, USA 3000 [Brendan Airways]24. Additionally, the Respondent has admitted that itexercised operational control overthe flight in question25

. Notwithstandingthe Respondent's contentions it has already been determined in the Order Denying Respondent's Partial Motion To Dismiss, and thus is the lawofthis
case, that "as the air carrier operatingthe aircraft, Respondent was responsible for the

21 See the response to paragraph II(4) ofthe 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 ForAdmissions, and Request ForProduction ofDocuments, Response To Interrogatories, Response No. 13. See Exhibit 3. 23 See the Respondent's Response To Complainant's First Set ofInterrogatories, Request ForAdmissions, and Request For Production ofDocuments, Response To Request For Admissions, Response No.1. See Exhibit 3. 24 See the Respondent's Response To Complainant's First Set oflnterrogatories, Request ForAdmissions, and Request For Production ofDocuments, Response To Interrogatories, Response No. 13. See Exhibit 3. 25 See the Respondent's Response To Complainant's First Set ofInterrogatories, Request ForAdmissions, and Request For Production ofDocuments, Request For Admissions, Response No. 13. See Exhibit 3.
10aircraft's maintenance, however the maintenance was ordered26". In any event, pursuant to AlaskaAirlines and §l21.363(a) the Respondent is primarilyresponsible for the performance ofmaintenance on its aircraft. It does not matter who ordered the maintenance, who performedthe 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 cannotprove that independent contractorAARperformed the improper maintenance the §43.13(a) and (b) claims must be dismissed27• However, pursuantto §l21.363(a) an air carrier's responsibility for maintenance is not limited to responsibility overthe 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 ifthe party is acting as their independent contractor or not, and regardless ofwhether or not the party is performing maintenance undertheir direction or not. The Respondent has also argued that the spoilers could have beenplaced in the maintenance mode by non-maintenance personnel at the airport through a nonmaintenance activity, or during maintenance performed under the orders ofthe aircraft's owner, and/or the new lessee ofthe aircraft, orby vandals28

. However, the Respondent offers no evidence to indicate that the spoilers were placed inthe maintenance mode by non-maintenance personnel at the airport or by vandals. In fact inthe Declaration of Joseph Miller, the Respondent's Director ofMaintenance, 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.
11believes but cannot prove that the spoilers were placed in the maintenance mode by painters who painted the livery [ofthe new lessee] between May 15th and 17'h29. Therefore, it is Respondent's beliefthat 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 onthe aircraft. Finally, strong public policy reasons supportholding air carriers responsible for the improperperformance ofmaintenance ontheir aircraft whether ornot the air carrierhas knowledge ofhow orwhen the improper maintenance was performed orby who. Such a holding couldprovide incentive for air carriers and independent contractors to make it difficult to determine how and when the improper maintenance occurred in orderto shield themselves against potential enforcement action. The result could be an avenue through which air carriers could unburden themselves oftheir**~tatutory** duty to provide service withthe highest possible degree ofsafety inthe public interest. For these reasons, in keeping with the precedent set inAlaska Airlines, the Respondent should be found in violation ofSections 43.13(a) and 43.13(b) ofthe FAR IV. The Respondent Should Be Assessed A Civil Penalty of$15,000 Throughthe Amended Complaintthe Complainanthas sought a Civil Penalty of $15,000 againstthe Respondent. Pursuantto 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 Respondentperforms scheduledpassenger and cargo operations and has less than

29 See The Declaration ofJoe Miller paragraph 40 attached as Exhibit 7. 30 See Exhibit 8 Page B-2 ofthe Table ofSanctions.
121,500 employees31 pursuantto page B-2 ofAppendix B the Respondent is a small business

concern32

. The next step inthe process is to determine what Group ofair carrier the Respondentfalls underpursuantto page B-3 ofAppendix B33. As Respondent is a Part 121 carrierwith an annual operating revenue ofmore than $100,000,00034 itis considered a Group I air carrie25

. Pursuantto page B-3 ofthe Table ofSanctionsthe penalty range for Group I air carrier smallbusiness 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 whatthe applicable sanction guidance is for air carriers that perform improper maintenance and operate aircraft in anunairworthy condition. Pursuantto Figure B-l-h onpage B_1337 ofthe Table ofSanctions the applicable civil penalty for failure to perform or impropermaintenance is Moderate to Maximum. Pursuantto Figure B-I-I(2) page B_1438 ofthe Table ofSanctions the applicable civil penalty for nonconformityto type certificatethatmay have, orhas, adverse effect on safe

31 See Exhibit 9 VIS Air Operator Profile 32Although the Respondent has not admitted that it is a small business concern the evidence in the possession ofthe FAA indicates that it is a small business concern and it is unlikely that the Respondent will contest this evidence because ifit were found that the Respondent were a large business concern then pursuant to FAA Order 2150.3B's Table ofSanctions a higher sanction would be appropriate in this case. 33 See Exhibit 10 Page B-3 ofthe Table ofSanctions. 34 See Exhibit I I Airline Quarterly Financial Review for USA 3000 Airlines (the Exhibit only contains the relevant pages ofthe review). 35 Although the Respondenthas not admitted that it has an annual operating revenue ofmore than $100,000,000 (at the time ofthe 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 of2009 you can use the following link. http://ostpxweb.dot.gov/aviationifinance/nat0903p.pdf 36 See Exhibit 10 Page B-3 ofthe Table ofSanctions. 37 See Exhibit 12 Page B-13 ofthe Table ofSanctions. 38 See Exhibit 13 Page B-14 ofthe Table ofSanctions.
13operation is Moderate to Maximum. Based onthe above, pursuant to FAA Order 2150.3B's Table ofSanctions, the appropriate range ofsanctionfor the Respondent's performance ofimproper maintenance and operation ofan unairworthy aircraft is between $4,400-$11,000 for each ofthese offenses. Incoming up withthe 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 inassessing the civil penalty appropriate for a violation ofits regulations. In the Matter ofFolsom's Air Service Inc. FAA OrderNo. 2008-11 Footnote 23 (November 6, 2008) citing NL Industries, Inc., v. Dep't ofTransp., 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. Giventhat the Complainant's proposed sanction of$7,500 for each ofthe two applicable offenses inthis case is belowthe mid range ofthe Complainant's sap.ction guidance for each ofthese two offenses it cannot be said that the Complainant's sanction determination is unwarranted in law or withoutjustification 

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

14WHEREFORE the Complainantrespectfully requests that this MotionFor Decisionbe granted in all respects or that in the alternative the hearing in this matter be limited to the issue ofsanction.
Respectfully submitted, Alfred 

### R. Johnson, Jr. Regional Counsel

By: Attorney Federal AviationAdministration 1Aviation Plaza Jamaica, NY 11434 Telephone: 718553-3270 Facsimile: (718) 995-5699 Date:

15CERTIFICATE OF SERVICE I hereby certifY that on this day copies ofthe foregoing Complainant's Motion For Decision were sent byFederal Express Mail addressed as follows: Hearing Docket Federal AviationAdministration 600 Independence Avenue, SW Wilbur Wright Building

- Suite 2Wl000 Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 (FAX) 202-366-7536 Jason Dickstein Washington Aviation Group, PC & Law Offices ofJason Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 (FAX) 202-628-8948 The Honorable Ronnie A. Yoder ChiefAdministrative LawJudge Office ofHearings, M-20 Room E12-320 

### V,S. Department ofTransportation 1200 NewJersey Avenue, S.E. Washington, DC 20590 (FAX) 202-366-7536

anagement & Program Analyst Office ofRegional Counsel 1Aviation Plaza Jamaica, NY 11434

16

# u.s. DEPARTMENT OF TRANSPORTATION FEDERAL AVIATION ADMINISTRATION OFFICE OF HEARINGS

WASHINGTON, D.C.
In the Matter ofBrendan 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 ofAir 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 N265AV, 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 causedunwanted 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, andpractices acceptable to the Administrator. 8. By virtue ofthe foregoing, you performed maintenance, without doing the work in such a manner that the condition ofthe aircraft, airframe, aircraft engine, propeller, or appliance worked on was at least equal to its original orproperly altered condition. 9. During the flight, the aircraft took offat 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 spoilerNo.3; b) left wing roll spoilerNo.5; c) right wing roll spoilerNo.3; d) right wing roll spoilerNo.5 13.
. During the flight, but prior to takeoff, the pilots operating the aircraft were aware thatthe aircraft's ECAM indicated that the following wing roll spoilers were not operational and/or were locked out: a) left wing roll spoilerNo.3; b) left wingroll spoilerNo.5; c) right wing roll spoilerNo.3; d) right wing roll spoilerNo.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 spoilerNo.3; b) left wing roll spoilerNo.5; c) right wing roll spoilerNo.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 spoilerNo.3; b) left wing roll spoilerNo.5; c) right wing roll spoilerNo.3; d) right wingroll spoilerNo.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 leftwing 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 endangerthe life orproperty ofanother.
III 

### By reason of the foregoing facts and circumstances, Respondent violated the following section(s) ofthe 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 ofthe MinimumEquipment 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 ofthe 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 ofsuch 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 thatno 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 penaltynot to exceed $11,000 for each ofthe violations alleged.

6

### 2. Under the facts and circumstances ofthis 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 Respondentbe 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 1AviationPlaza Jamaica, NY 11434 718553-3270 (718) 995-5699
NOTE: 

### The Rules of Practice for this proceeding are set forth in 

### Part 13, Subpart G, oftheFederal 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 ofService. 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, byCertifiedMail

- Return Receipt Requested addressed as follows: Jason Dickstein Washington Aviation Group, PC & 

### Law Offices ofJas 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 WilburWrightBuilding

- Room 2014**~IF** 

### FILING BYFEDERAL EXPRESS FederalAviation Administration (Original and one copy) 600 Independence Avenue, SW WilburWright Building

- Room 2014 Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430

Date:
______ _ 

# :J!t1fAfI

# (jhl);1k}7~rn,; MarYann MI8lXone**!'~** 

### Legal TechniCIan FederalAviationAdministration Office ofRegional Counsel 1Aviation Plaza Jamaica, NY 11434

8\"
I, , 

### ' <,. 

### SERVEDJUNE7, 2010

U.S. DEPARTMENT OFTRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC
IN THEMATTER OF BRENDANAIRWAYS, LLC. FAA DOCKET NO. CP09EA0007 (Civil PenaltyAction) DMS NO. FAA-2009-0032 ,f

, " ,/"



### ORDER OF CHIEF ADMINISTRATIVELAWJUDGE RONNIE A. YODER DENYING RESPONDENT'S PARTIALMOTIONTODISMISS THE COMPLAINTAND FOR A MOREDEFINITE STATEMENT,AND GRANTING COMPLAINANT'S MOTIONTO STRIKE THERESPONDENT'S SURREPL Y**~**

### y "Partial Motion to Dismiss, and for a More Definite Statement" ("Motion to Dismiss") served February 12, 2009, BrendanAirways, LLC, ("Respondent") seeks to dismiss the Complaintfiled bythe Acting Regional Counsel, Eastern Region ("Complainant"), Federal Aviation Administration ("FAA"), arguing that the Complaint failed to allege sufficient facts to make out 

### aprimaJacie casethat 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: "Eachpersonperforming maintenance, alteration, or preventive maintenance onan aircraft, engine, propeller, orappliance shall use the methods, techniques, and practices prescribed in the current manufacturer's maintenance manual orfustrnctions for Continued Airworthiness prepared by its manufacturer, or other methods, techniques, andpractices acceptable to theAdministrator, except as noted in § 43.16, He shall use the tools, equipment, and test apparatus necessary to assure completion ofthe work in accordance with accepted industry practices. Ifspecial equipment ortest apparatus is recommended by the manufacturer involved, he mustuse thatequipment or apparatus or its equivalent acceptable to the Administrator." 14 C.F.R. § 43,13(b) provides: "Eachperson maintaining or altering, orperforming preventive maintenance, shall do that work in such a manner and use materials ofsuch a quality, that the condition ofthe 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, Complainantcontends that it provided Respondent with sufficient notice ofthe violations alleged in the Complaint and requests that a civil penalty of$15,0003 be assessed.4 OnMarch 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 befiled at this point inthe proceeding. 6 On April 2, 2009, Respondent served "Opposition to Complainant's Motion to Strike Surreply" ("Opposition to Motionto Strike"), arguing that the Surreply "is a valuable expansion ofthe record, and should be allowed in.,,7 For the reasons setforth 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 orproperly altered condition (with regard to aerodynamic function, structural strength, resistance to vibrationand 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) ofthis section, no certificate holder may operate anaircraft unless that aircraft
.. , (2) Is in anairworthy condition and meets the applicable airworthiness requirements ofthis 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. Thecontents ofthe Surreply are discussed in PartD ofthis Order. 6 Motionto Strike at 2. 7 Opposition to Motion to Strike at 1-2.

- 2- ; 

# . !



### ••

### ,. 

## '. The Complaint alleges five violations ofthe Federal Aviation Regulations ("FARs,,).8 First, it alleges that Respondent operated an aircraft in an unairworthy 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 ofthe Minimum EquipmentList ("MEL"), in violation of 14 C.F.R. § 121.628(a)(5).10 Third, it alleges that Respondentfailed to perform propermaintenance onthe 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 "insufficienton their face and must therefore be dismissed.,,12 The Complaint alleges the following facts: On May 17, 2008, Respondent operated an Airbus A320-212 ("the aircraft") on a flight that took offand landed atMiami International Airport ("the flight").13 Priorto the flight, maintenance was performed onthe aircraft, during the

course**~f** which the spoiler servo actuators for left wing roll spoilers three and five were placed inmaintenance mode. 14 Afterthe maintenance was performed, the spoiler servo actuators were notreturned to operational flight mode. 15 Respondent operated the flight withthe spoiler servo actuators inmaintenance mode. 16 According to the Airbus Maintenance Manual for the aircraft, spoilers left in

### mainte~ance mode will cause ''unwantedmovementofthe spoiler."I? According to the aircraft'sMEL, the aircraft cannotbe dispatched whentwo ormore spoilers oneither wing

8See 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. TheMotion to Dismiss does not address Complainant's claim that Respondent violated 14 C.F.R. § 121.62S(a)(5). 13 Compl.lII-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.1II-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 ofone ofthe 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 "notoperational and/or were locked out.,,21 During the aircraft's fIrst landing attempt atMiami International Airport, the aircraft's left wing tip made contactwith.therunway 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 thefacts alleged inthe Complaint. According to Respondent, the aircraft had reached the end ofits lease to Respondent and, pursuantto the terms ofthe lease, Respondent sentthe aircraft for maintenance.24 Respondent alleges that after the maintenance onthe aircraft was completed, the aircraft was to bereturned to the lessor.25 Priorto returning the aircraft, a maintenance acceptance flight was performed to ensurethatthe aircraft was airworthy.26 Respondent contends that it was only during the flight, after take-off, that the crew discovered a problem with the wingroll spoilers.27 Respondent contends that according to a subsequent investigation, the spoilers hadbeenmoved into maintenance mode

18 [d. 

### 'II II-14. 19 CompI. 'Il'Il II-lO, II-II. 20 Ed. 'Il'Il II-15, II-16. Thefour allegedly inoperative wing roll spoilers were: left wing roll spoilerNo.3, left wing roll spoilerNo.5, right wing roll spoilerNo.3, and right wing roll spoilerNo.5. TheComplaint 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 ofthe aircraft's subsequent lessee. 28 

### Respondent asserts that "none ofthe 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) ofFAA's Rules and Practice sets outthe standard for adequacy ofa Complaint: "Acomplaint shall setforth the facts alleged, any regulation allegedly violatedby the respondent, and the proposed civil penalty in sufficient detail to provide notice ofany factual
or legal allegation and proposed civil penalty.,,30 A motion to dismiss for insufficiency maybe granted if

### it is shown-- "that the complaint fails to state a violation of a provision ofthe 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 ofthe Federal hazardous materials transportation statute, 49 U.S.C. 5121-5128, or any implementing rule, regulation or order.,,3l Respondent argues that four ofthe claims alleged inthe Complaint, read inthe light"most favorable to Complainant, are insufficientbecause they allege legal conclusions instead of facts.32 Respondent cites Clegg v. Cult Awareness Network in support ofthe proposition that alleging solely legal conclusions is insuffIcient innotice pleading.33 Yet, as the Complainant

28 [d. 29 [d. 30 14C.F.R § 13.20S(c); City of Phiia., FAADocketNo. CPOSEA0009, FDMS No. FAA-200S-05lO, Administrative LawJudge's Order Granting in Part and Denying in PartMotion to Dismiss the Complaint at 3 (Aug 5,200S). Jl 14C.F.R § 13.21S(f)(1). 32 Motion to Dismiss at 3-S. Thefour allegedly insufficientclaims 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. CultAwarenessNetwork, IS F.3d 752,754-55 (9th Cir. 1994)).



### - 5

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

were controlling. 35 In an administrative proceeding, a complaint "is sufficient ifthe respondent 'understood the issue' and 'was afforded full opportunity' tojustify its conduct during the course 

# .. ofthe litigation.,36 On a motion to dismiss, the complaint's allegations are accepted as true.37 Accordingly, we evaluate the sufficiency ofthe Complaint under this standard. A. The 14 C.F.R. § 43.13(a) and (b) Claims Respondent contends that "[i]n orderto prove a violation of 14 C.P.R. § 43.13(a), the Administratormust allege [] that theRespondenthas used certainmethods, techniques, or practices
..." and that "an integral elementto a 43.13(b) claim is [an] allegation that the Respondent performed the maintenance.,,38 Respondent argues that, since the Complaint fails to allege thatRespondent performedthe maintenance at issue, or that the maintenance was performed under Respondent's instruction, the claims shouldbe dismissed for insufficiency.39 Complainantresponds that it is irrelevant whether the maintenance was performedby, or underthe direction of, Respondent. 4o "Pursuantto 14 C.F.R. § 121.363, theRespondent is primarily responsible for the performance ofthe maintenance ofits aircraft
... [and this] regulation does not allow air carriers to evade their primaryresponsibilities bydelegating their .maintenance obligations to third parties.,,41

34Answer'to Motion at 5 n.3. J5 See Clegg at 754 (case reviewed under FRCP 12(b)(6)). J6AlohaAirlines, Inc. v. Civil AeronauticsBd.,598 F.2d 250, 262 (D.C. Cir. 1979)(quotingNLRB v. MackeyRadio & Tel. Co., 304 U.S. 333, 350 (1938)); Flying FoodGroup, Inc. v. NLRB, 471 F.3d 178, 183 (D.C. Cir. 2006). 37RiverdaleMills Corp., FAAOrder 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. (citingAlaskaAirlines, Ene., FAAOrder No. 2004-8, at 6 (Sept 30, 2004)). 14 C.F.R. § 121.363 provides: (a) Each certificateholder 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 norhad

reason to know ofthe 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 ofcare, are nondelegable.,,44 Under § 121.363(b), "arranging maintenance with someone else does 

### notrelieve the air carrier ofits primary responsibility for airworthiness and maintenance.,,45 The Administrator also pointed to an FAA-issued guidance emphasizing air carriers' responsibility for maintenance performedby independent contractors.46 Accordingly, we find that the Complaint alleges sufficient facts which, ifproven, 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 itperformed maintenance on the aircraft withoutusing themethods, techniques and practices prescribed inthe current manufacturer's maintenance manual for the aircraft.47 The Complaintfurther claims that Respondent violated 14 C.F.R. § 43.13(b) when Respondent did notperform 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 ofthis 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 inparagraph (a) ofthis section. 42 FAA DocketNos. CP02NMOOOl, CP02NM0002, and CP02NM0003, FDMS Nos. FAA-2002-11411, 11412, and 11413, Order Granting Respondent's Motion for Decision at 3 (Jan 10,2003). 43AlaskaAirlines, Inc., FAA Order No. 2004-8 at 1 (October 4,2004). 44 Id. at6. 45 Id
. (emphasis in original). 46Id; Flight Standards Handbook BulletinforAirworthiness, HBAW-1996-0SB at 2 (1996): each airline is "responsihle for the performance ofall elements ofits continuous airworthiness maintenance program." 47 See Complaint'll'llII-4 to II-8, ill-(c).


### -7 -a manner that resulted in the condition ofthe 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, howeverthe maintenance was ordered.52 Moreover, the facts alleged are sufficientto support the claimthat 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 ofthat maintenance, the aircraft's spoiler servo actuators for left wingroll spoilers three and five were allegedly left inmaintenance mode for the duration ofthe flight, contrary to the Airbus Maintenance Manual for the aircraft.55 Further, the aircraft's MEL allegedly proscribes dispatching the aircraft whentwo or more spoilers oneitherwing are in an inoperable condition.56 Since both the aircraft's maintenance manual and the MEL allegedly warned against leaving the wingroll spoilers in maintenance mode during the flight, the Complaint alleges

48 See id. 

### 'Il'll II-4, II-5, II-S, ill-(d). 

## 4' SeeAlaskaAirlines, Inc., FAAOrder No. 2004-S at 5-7 (Oct4,2004): United ParcelService, FAADocket No. CPOSS00007, FMDS No. FAA-200S-03S4, AdministrativeLawJudge's Initial Decision at 2 n.5 (Nov 13, 200S). 50 See Motion to Dismiss at 1-2 (the aircraft "was sentto a repair station for overhaul before beingreturned 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 SeeAlaskaAirlines, Inc., at 2, 5-7. 53 Compl. 'J[ II-3. 541d. 'J[ II-4. 55 ld. 

### 'Il'll II-4to 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 boththe aircraft's MELand the Airbus Maintenance Manual warned against dispatching the aircraft with inoperable wing roll spoilers.58 TheAirbus Maintenance Manual allegedly warns that "ifthe spoilers are left in the maintenance mode aerodynarnic forces will caused [sic) unwanted movement ofthe spoilers.,,59 Moreover, the MEL allegedly warns that an aircraft maynotbe dispatched with two ormore 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 conclusionthat Respondent did not performthe maintenance in such a manner that the condition ofthe aircraft was atleast equal to its original orproper!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 inorderto violate 14 C.F.R. § 121.153(a)(2), the aircraft must havebeehoperated either "(1) in an unairworthy condition or(2) in a manner that fails to meet the applicable airworthiness requirements of" Chapter 1 ofthe C.F.R. 62 Similarly, Respondent

57 I d. '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 ofthe 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) conformto 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 ofthis 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 inconformity with the aircraft's MEL may be sufficientto deem the aircraft out ofconformity with its type design.67 The Complaint also contains facts alleging that the aircraft was not in a conditionfor safe operation. TheComplaint alleges that during the flight, Respondent operated the aircraft with two left wing roll spoilers in maintenance mode, contraryto the Airbus Maintenance Manual.68 Moreover, Respondent allegedly operatedtheflight with a total offour inoperable wingroll

63/d. at 7. 64 Id. at7, 8. 6'Del. SkywaysLLC, FAA Order No. 2005-6 at 2 (Mar 8, 2005); Cal. Helitech, FAAOrder No. 2000-18 at 2 n.7 (Aug II, 2000). 66 See CampI. 'Il'lI II-14, II-15. TheMEL 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 onthe right wing) were inoperative. 6 See DeltaAirLines, Inc., FAA OrderNo. 97-21 at I (May 28, 1997) ("Ithas long been the agency's position that without an applicableprovision in the Minimum Equipment List, ifan instrument orpiece ofequipment 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 ofthe 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 inviolation of 14 C.F.R. §§ 121.1S3(a)(2) and 91.7(a); and the facts alleged in the Complaintwould support
a conclusionthat operating the aircraft with four inoperative wingroll 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. MoreDefiniteAirworthiness Standard Inthe alternative, Respondentrequests that we order Complainantto "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 ofPracticefor FAA Civil PenaltyProceedings provide that "[a] party may file a motion for more definite statement ofany pleading whichrequires a response under this subpart.,,73 Respondent argues that the Complaintfails to provide adequate notice of "what objective standards the FAAis using tojudge the airworthiness condition ofthe aircraft.,,74 As noted above, the airworthiness standard is clear.1 5 Indeed, the Motionto Dismiss indicates·thatRespondent is aware ofthe airworthiness standard, stating: "The term 'airworthy' has been defmed by the Administrator and the courts to meanthat the aircraft meets its type

., [d. 'Il'IIII-14, II-IS. 70 [d. 'JIII-17, II-18. n [d. 'Il'IIII-19, III-(a), III-(e). 72Motion to Dismiss at 7, 8. 73 14 C.F.R. § 13.218(f)(3). 74 Motionto Dismiss at 7. 75 Del. Skyways

## ac,FAA OrderNo. 2005-6 at 2 (Mar 8, 2005); Cal. Helitech, FAA OrderNo. 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 Complaintfailed 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 notrequired to provide a more definite statement ofairworthiness. 78 D. Complainant's Motionto Strike the Surreply Respondent's Surreply79 contends that the standard for sufficiency in administrative pleadings as proposedby the Complainant in its Answer to the Motion is overly lenient.80 The Surreply also contends that FAA regulations do nothold a party liable for regulatory violations that were not committed bythe party, and that the Complaintfails to allege that Respondent performed the deficient maintenance.81 Finally, the Surreply argues that the Complaint only alleges legal conclusions unsupported byproper allegations offact.82 Complainant's Motion to Strikeresponds by arguing that the Surreply should be stricken because it is redundant and because, under 14 C.P.R. § 13.218, a surreplymaynot befiled inresponse 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 ofthe record, and shouldbe allowed in.,,84

76 Motion to Dismiss at 6 (citingAm. AirNetwork. Inc., FAAOrder 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 inthe regulations, or (2) failed to meet the requirements ofits type design, or (3) was not in a condition for safe °feration"). 7 See supra note 70. 79 TheSurreply refers to the Complainant as "Administrator" in this proceeding, although the Complainant is, in fact, the FAAActing Regional Counsel. Since the Administrator reviews AUdecisions in these proceedings, he is not a party in this proceeding and cannot be involved in the prosecution ofthis 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 ofPractice for FAA Civil Penalty Proceedings provide that "[a]ny party may make a motion to strike any insufficient allegation ordefense, or any redundant, immaterial, or irrelevant matter in a pleading.,,85 

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

were not made in the party's prior filings,86 Unlike that proceeding, the Surreplyheremerely reframes arguments Respondent made in its Motion to Dismiss. First, the Surreplycontends that the standard for sufficiency in administrative pleadings as proposedbythe Complainant in its Answerto 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 innotice pleading.,,89 The Surreply goes on to contend that FAAregulations do nothold a party liable for regulatory violations that were not committed by the party and thatthe Complaintfails to allege that Respondentperformed the deficient maintenance.90 This argument mirrors Respondent's argument in theMotionto Dismiss thatthe Complaint's failure to state facts linking the Respondent to the deficient maintenance "represents a failure to state a vital element in the cause ofaction.,,91 Finally, the Surreplyreiterates Respondent's argument thatthe Complaint only alleges legal conclusions unsupported byproper allegations offacts,92 Sincethe

85 14 C,F.R. § 13.2IS(f)(4), Cf City a/Chi., FAADocketNo. CP05GLOOI4, DMS No. FAA-2005-22671, Order DenyingMotion to Dismiss 1 (Feb 17,2006) (denying Motion for Leave to FileReply 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 bereceived"). 86 See Warbelow'sAir Venture, Inc., FAADocket No. CPOOAL0002, DMS No. FAA-2000-7215, Order ofChief Administrative LawJudge 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. CultAwarenessNetwork, 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 sufficientfacts and IT IS ORDERED THAT: 

### (1) Respondent's "Partial Motion to Dismiss, and for a More Definite Statement" is denied;(2) Complainant's "Motionto Strike the Respondent's Surreplyto 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 ofthis order. 93



### SO ORDERED.**-~b'le** A. Yoder ChiefAdministrative Law udge Attachment

- ServiceList

93 14 C.F.R. § 13.218(f)(2)(ii) states that "[i]fthemotion to dismiss is not granted, the respondent shall file an answer and shall serve a copy ofthe answer oneach party not later than 10 days after service ofthe administrative lawjudge'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 ofJasonA. Dickstein 2233 Wisconsin Avenue, N.W., Ste. 503 Washington, DC 20007 TEL: (202) 628-6776 FAX: (202) 628-8948 David M. Cohen, Attorney Office ofthe Regional Counsel, EAL-7 FederaLAviation Administration I Aviation Plaza Jamaica, NY 11434 TEL: (718) 553-3270 FAX: (718) 995-5699 TheHonorable Ronnie A. Yoder ChiefAdministrativeLawJudge Office ofHearings, M-20 RoomE12-320 U.S. Department ofTransportation 1200 New JerseyAvenue, S.E: Washington, DC 20590 TEL: (202) 366-2142 FAX: (202) 366-7536

94 Service was by U.S. Mail. For service inperson orby expedited courier, use the following address: Federal AviationAdministration, 600Independence Avenue, S.W., Wilbur WrightBuilding

- 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 LawJudge RonniE A. Yoder

In the matter of 

### . ,Jill' ':l 

### ?n1n DMS No.: FAA-2 09-0032 FAA DocketNo.: :P09EAo007 L'nI FAACaseNo.:2C 8EA170038_

-CRTSBRENDAN AIRWAYS, LLC, d/b/a USA3000 Airlines RESPONSE TO**COMPLAINAr~** 1 '03 FIRST SET OF INTERROGATORIES,

REQUEST FORADMISSIONS, AND REQUEST FOR PRODUCTION OF DOCUMENTS Respondent

Comes nowthe Respondent, Brendan Airways, LLC d/b/aUSA3000 Airlines [hereinafter "USA3000"] and RESPONDS to the Complainant's First Setoflnterrogatories, Request for Admissions, and Request for Production ofDocuments. Responses to Interrogatories 

### 1. Identify the names, titles, business orhome addresses and telephone numbers ofeach person whom the Respondent intends to call as a witness atthe hearing ofthis matter. Response: The identity ofany witnesses is a matter oftrial 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 ofthe testimony to be offered by each ofsaid witnesses. Response: The identity ofanywitnesses is a matter oftrial strategy that has not yetbeen decided. The Respondent reserves the right to amend this answer as trial witnesses are identified.


### 3. With respect to eachexpert witness identified inresponse to requestNos. 1 and 2 above: (a) identify the subject matter on which the expert is expectedto testify; (b) list the substance ofthe facts and opinions to whichthe expert is expectedto testify; (c) provide a summary ofthe grounds for each opinion; (d) ifthe Respondent intends to introduce into evidence orotherwise rely upon a written curriculum vitae orother written document listing the expert's professional qualifications, identify and attach copies ofall such documents. I

### Response: The identity ofany expert witnesses is a matteroftrial strategy thathas not yet been decided. The Respondent reserves the right to amend this answer as expert witnesses are identified.
4. To the extentnotencompassed inyourresponse to Nos. I, 2, and 3 above, identify and produce statements ofall individuals who spoketo, orwere interviewed by, the Respondent regarding this matter. 

### Response: We object to this interrogatory to the extentthat it might be interpreted to include interviews conducted by Counsel, onthe grounds that such interviews are protected from discovery as Attorney Work Product. All Respondent conversations are detailed in a June II, 2008, letter from Respondent to Laurence Johnson, outlining the interviews conducted and describing the information gleaned from them. That letteris attached. Two additional documents existthat are also responsive (both are also attached):

• The Respondent interview ofJoe Millerresulted in a separate summary ofthe interview. A copy ofthe June 13,2008 letterthat was produced as a summary ofthe interview is attached. • TheRespondent asked ChiefPilot Tim Lyons why Captain Walker was inthe left seat during the flight. A June 3, 2008 email describing the answeris attached.
5. Identify and produce copies ofany and all documents on which the Respondent anticipates relying, or will rely, in support ofthe case itwill present atthe hearing inthis matter, including butnot limitedto documents you intend to introduce into evidence. 

### Response: Respondent anticipates relying on • The transcript ofthe enforcement action Babbitt v. Surratt and Walker (NTSB Docket Nos. SE- 18562 and SE- I8563). • The Decision ofJudge Fowlerinthe enforcement action Babbittv. Surratt and Walker NTSB DocketNos. SE-18562 and SE-18563 (Issued orally August 12,2009 and issued in writing on September2, 2009). • The Decision ofthe NTSB denying the appeal ofthe enforcement action Babbittv. Surratt and WalkerEA-5514 (NTSB March 23,2010). • The Decision ofthe NTSB denyingthepetition for reconsideration inthe appeal ofthe enforcement actionBabbitt v. Surratt and Walker EA-5527 (NTSB June 25, 2010). • The four documents attached to the Respondent's Discovery Request dated June 2I, 2010, whichhave previously been provided to the Complainant (withthat Discovery Request). • The documents attached to this Response.Respondent objects to the direction to produce copies ofthe cases and transcripts mentioned above, as the transcripts and case decisions are already in the possession ofthe FAA and the cases are also available through standard online research mechanisms. The specific identity ofadditional exhibits is a matter oftrial 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 priorto the flight and betweenApril 29, 2008 and March 17, 2008. Response: During the period AprilI8-ApriI29, AARplaced the aircraft's spoiler servo actuator for left wing spoiler three inthe 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 onApril 29. This the only time that the aircraft's spoiler servo actuator for left wing spoilerthree was placed inthe maintenance mode betweenMarch 17,2008 and April 29, 2008. According to the records wehave, the aircraft's spoiler servo actuator for left wing spoilerfive was not placed in maintenance mode betweenMarch 17, 2008 and April 29, 2008.
7. Explain all reasons why the aircraft's spoiler servo actuators for left wingroll spoilers three and five were placed in the maintenance mode priorto the flight and between April 29, 2008 'and March 17, 2008. Response: To ourknowledge, the aircraft's spoilerservo actuator for left wing spoilerthree (butnot five) should have been placed inthe maintenance mode only once between March 17, 2008 and April 29,2008. BetweenApril 18 and April 29, 2008, AARwas working onthe left wing's number three spoiler control. This was done as part ofa non-routine maintenance activity that was accomplished pursuantto 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 isresponsible for the aircraft's spoiler servo actuators for left wing roll spoilers three and five beingplaced in maintenance mode priorto the flight and explain why you believe that person or entityisresponsible. Response: Aside from the work described inthe 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 wingroll spoilers three and five beingplaced inmaintenance mode priorto the flight.9. Answer whether a failure ofone ofthe aircraft's spoiler servojacks could cause an amber LAF DEGRADED message to appear on the aircraft's ECAM. 

### Response: Yes, that is one ofthe many scenarios under which an amber LAF DEGRADED message might appear onthe aircraft's ECAM.


### 10. Explain all reasons for yourbeliefthat the aircraft can be dispatched when left and right wing spoilers three and five are inoperative. 

### Response: We object to this interrogatory onthe grounds that it assumes a "belief'that Respondent has not professed. Respondent also objects to this interrogatory onthe grounds ofrelevance, because the term inoperative is defined as "a system or component malfunction" and the spoilers inthis case were in maintenance mode, not malfunctioning
11. Ifyou believethatthe aircraft is ina condition for safe operation whenthe aircraft's left and right wing roll spoilers three and five are inoperative please state and explain all reasons for yourbelief. 

### Response: Respondent objects to this interrogatory onthe grounds thatthis interrogatory calls for an opinion concerning safety, for which Respondent does not have appropriate engineering data to respoiId. Respondent also objectsto this interrogatory onthe grounds ofrelevance, because the term inoperative is defined as "asystem orcomponent malfunction" and the spoilers inthis case were inmaintenance mode, not malfunctioning Without waiving these objections, Respondent states that generally, ifspoilers are known to be inoperative, thenthe aircraft should only be dispatched in accordance withthe aircraft's MEL.
12. Ifyou believe thatthe aircraft conforms to its type certificate and/or type designwhen the spoiler servo actuators for left wingroll spoilers three and five are placed inthe maintenance modeplease state and explain all reasons for yourbelief. 

### Response: Maintenance mode is providedbythe manufacturer as original equipment onthe aircraft and is therefore described inthe type design for the aircraft.13. Explain all reasons for your beliefthat the placement ofleft wing roll spoilers three and five in the maintenance mode was not part ofany maintenance performed on the aircraft. 

### Response: We objectto this interrogatory onthe grounds that itmisstates our contention. We have never claimedthat that the placement ofleft wing roll spoilers three and five inthe maintenance mode was not part ofany maintenance performed onthe aircraft. We do not knowhoworwhen the left wing roll spoilers three and five were placed in the maintenance mode. Ourcontention is thatthe placement ofleft wingroll spoilers three and five in the maintenance mode was not part ofany maintenance that was ordered by, orwithin the control of, USA 3000. In a letter to the FAA dated May 30, 2008, AAR (the maintenance contractor) admitted that during the course ofthe 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 inthe 'Maintenance' mode." AAR indicates that on orbefore April 29, its investigation shows that the servo switchfor the #3 LEFT spoiler wasplaced inthe 'Maintenance' mode" but then was returnedto the operational mode. AAR indicates that its records and investigation suggestthat the servo switchfor the #5 LEFT spoilerwas neverplaced inthe 'Maintenance' mode during maintenance performed for USA3000. AAR's letter indicates thatthe servos were returned to the operational mode on orbefore April 29 and therefore ifthey were placed in the maintenance mode ithadto have happened afterthe April 29 inspection thatconfirmed they were in the operational mode. ThatMay 30 letterexplains that while the physical evidence shows that on orbefore May 17, 2008; left wing roll spoilers three and five were placed inthe maintenance mode, "there is no record ofsuch action and we were unable to determine who may havebeen involved." USA3000 requires all maintenance to be performed according to workcards ornon-routine cards. The USA3000 workcards were completed, and there appears to be no other spoilerrelated irregularities inthework cards orthe non-routine cards. None ofthe work cards and nonroutine cards that were accomplished on orafter April 29, 2008 required the left wingroll spoilers three and five to be placed in the maintenance mode. On May 15, 2008, 

### Mr. Miller and

### Mr. Beal ofUSA 3000 performedengine tests onthe aircraft. Duringthe course ofthose tests, 

### Mr. Millerhad occasionto perform a flight control test. He received no ECAMwarnings about the spoilers and received no indication that the spoilers were inmaintenance mode. As ofthis date, all ofthe maintenance performed on the aircraft before the flight, hadbeen accomplished.
14. Identify what section ofthe USA 3000 Airlines Minimum EquipmentList, ifany, states, implies, orinfers that the aircraft can be dispatched when two pair ofsymmetrical spoiler surfaces three and five are inoperative. 

### Response: None15. Please identify any malfunctions that occurred in the aircraft's ECAM system that occurred duringthe 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 priorto takeoff. 

### Response: We object to this interrogatory in that it eitheris duplicative ofinterrogatory 15, or else ifitis substantively different from interrogatory 15 then it is asking for something that we cannot understand (too vague).
17. Ifit is yourbeliefthatthe ECAM failed to report that left and right wingroll spoilers three and five were inoperative and/or were locked out at anytime priortotakeoffplease explain all reasons why youholdthis belief 

### Response: During the matter Babbitt v. Surratt and Babbittv. Walker, Captain Walker and Captain Surratt each testified that at the time oftake-off, the only message on the ECAM was "LAF Degraded." LAF Degraded indicates that the LoadAlleviation Function (LAF) is not operating correctly, and is for crew awareness only.
18. Ifit is yourbeliefthat thepilots 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 youhold this belief. 

### Response: We object to this interrogatory on the grounds ofrelevance. Without waiving the objection, we state that during the matter Babbitt v. Surratt and Babbittv. Walker, Captain Walker testified that he completed a successful flight control check for the flight, and Captain Surratttestifiedthat his flight control check was deemed complete after the seemingly-spurious warnings were cleared.
19. Identify and describe all reasons whyduringtheflight 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 oflift withrespect to the wing.20. Identify and describe what mechanical malfunctions in the aircraft, ifany, 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 bythe pilots during the flight, ifany, that led to the aircraft's left wing tip contacting the runway during the flight. Response: None identified.
22. Describe what impact, ifany, the inoperative wing roll spoilershad on the pilots ability to maneuverthe aircraft during the flight. Response: Weobject on the grounds that the spoilers were 

### in maintenance mode

- they were not inoperative. Inoperative means a system or component malfunction, andmaintenance mode is different from a malfunction. Without waiving this objection we reply that the actual impact the wing roll spoilers had on the pilots abilityto maneuver the aircraft during the flight is unknown. During flight, the aircraft needed to betrimmed and this may have been caused by the wing roll spoilers being inmaintenance mode butthe specific causal effectis unknown.
23. Answer whether an amberLAP DEGRADED message onthe ECAM is supposedto go offifspoiler 5 is inoperable. Response: We object on the grounds that this is argumentative and (as drafted) not relevant. There are manyreasons whya LAP degraded message might appear. Without waiving this objection, Respondent statesthat spoilerfive was part oftheload alleviationfunction system. Ifspoiler 5 were inoperable, then yes, this is one ofthe events that might cause anamberLAF DEGRADED message to appear on the ECAM.24. Please state whetherthe document attached as Exhibit I is an accurate recording ofa conversation thatJoe Miller, Director ofMaintenance and Engineering for Brendan Airways LLC., d/b/a USA 3000 Airlines, had with anAviation 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 ofthe conversation.
25. Ifyou disagree withthe following statement found in Exhibit 1, orifyou don'tbelieve this statement was made by Mr. Miller, explain all reasons for your belief: "Carmothave both#3 and #5 spoilers INOP." 

### Response: We object to this question onthe grounds that it misleadingly misstates the Joe Miller statement bytaking the statement out ofcontext. 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 atface value (in which the statement does nothave its limiting context), we do disagree, because ifa problem is discovered during flight, then the pilots are expected to refer to the Quick Reference Handbook (QRH) for instructions. Iftwo sets ofspoilers 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 longerthan the minimumrunway requirement. The QRH provides no other operating instruction for inoperative spoilers. Thus, one could have two sets ofinoperative spoilers during flight.
26. Describe the relationship between AARAircraft Services and Brendan Airways, LLC, d/b/a USA 3000 Airlines, withregards to the aircraft in the time betweenApril 1, 2008 and May 17,2008. 

### Response: AARAircraft Services was a maintenance vendor for USA 3000 Airlines.
27. Answer whether ornot you paid AARAircraft Services for maintenance performed on the aircraft betweenApril 1, 2008 and May 17, 2008. 

### Response: We object to this interrogatory onthe grounds that it is ambiguous whether it is seeking information about maintenance performed during this period, orpayment during this period. Without waiving the objection, the answer is yes, wepaid AARAircraft Services for maintenance that was performed onthe aircraft betweenApril I, 2008 and May 17,2008.28. Answer whether or not International Leasing Finance Corporation (ILFC) paidAAR Aircraft Services for any maintenance performed onthe aircraft betweenApril I, 2008 and May 17, 2008 and ifpayment was made identify whattype ofmaintenance 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 anundue burden on respondent to obtain. Without waiving this objection, and following reasonable inquiry, Respondent does notknowthe answer to this question.
29. Answer whether ornot State Transport Company Russia (STCR) paidAARAircraft Services for any maintenanceperformed on the aircraft betweenApril 29, 2008 andMay 17, 2008 and ifpayment was made identify whattype ofmaintenance the paymentwas for. Response: Respondent objects to this interrogatory onthe grounds that it seeks information outside of Respondent's knowledge that would pose anundue burden onrespondent to obtain. Without waiving this objection, andfollowing reasonable inquiry, Respondent does not know the answer to this question. Responses to Requestfor Admissions 1. During the flight the aircraft's spoiler servo actuators for left wingroll spoilersthree and five were in the maintenance mode. Response: Admitted
2. Whenthe 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 objectto this request for admissions in that it seeks anopinion about safety that wouldrequire detailed engineering analysis using engineering datathat isnot inthe possession ofUSA 3000, andthat such ananalysis would constitute an undue burden. Followingreasonable inquiry, this is request is Denied for lack ofknowledge.
3. When the aircraft's spoiler servo actuators for left wing roll spoilers three and five are in themaintenance mode the aircraft does not conform to its type certificate and/or type design. Response: Denied4. 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. Whenthe 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 cannotbe dispatched when two pair ofsymmetrical spoiler surfaces three and five are inoperative. Response: Admitted.
7. Pages 2-27-10 and 2-27-11 ofthe USA 3000 Airlines Minimum EquipmentList provide information as to the conditions under which the aircraft canbe dispatched when one or more of the spoilers is inoperative. Response: Admitted
8. Pages 2-27-10 and 2-27-11 ofthe USA 3000 Airlines Minimum EquipmentList do not identify any conditions under whichthe aircraft can be dispatched when left wing spoilers three and five are inoperative. Response: Admitted
9. Pages 2-27-10 and 2-27-11 ofthe USA 3000 Airlines Minimum Equipment List do not identify any conditions under whichthe aircraft can be dispatched whentwo pair ofsymmetrical surfaces 3 and 5 are inoperative. Response: Admitted10. The aircraft is not in a condition for safe operation when left wing and right wing roll spoilers No.3 andNo.5, are inoperative. Response: We objectto this request for admissions in that it seeks anopinion about safety that would require detailed engineering analysis using engineering data that is not in the possession ofUSA 3000. The requirement to perform such detailed engineering analysis using engineering data that is not inthe possession ofUSA 3000 would be overly burdensome. Without waiving this objection, and following reasonable inquiry, this is request is Denied for lack ofknowledge.
11. During the flight, butpriortotakeoff, the ECAM indicated onmore than one occasion that the following wingroll spoilers were not operational and/or were locked out: left wing roll spoilerNo.3; left wing roll spoilerNo.5; right wing roll spoilerNo.3; and right wing roll spoilerNo. 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 onthe ECAM during eachrest ofthe spoiler elevator computers, but denied inpart, in that the warning was cleared and reasonably deemed by the flight crewto be spurious, so itdid not indicate a problem.
12. At all times during the flight the aircraft was on the operations specifications ofBrendan Airways, LLC d/b/a USA 3000 Airlines. Response: Admitted
13. Brendan Airways, LLC d/b/aUSA 3000 Airlines exercised operational control overthe flight. Response: Admitted
14. At the time ofthe flight BrendanAirways, LLC d/b/a USA3000 Airlines was leasingthe aircraft from International Leasing Finance Corporation (ILFC). Response: Admitted15. At the time ofthe flight BrendanAirways, LLC d/b/a USA 3000 Airlines' lease ofthe aircraft was nearing its end and the flight was undertaken as part ofthe process ofthe aircraft being transferred into the possession ofa new lessee. Response: We object to this request for admission onthe 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 CompanyRussia (STCR). Response: We object to this request for admission on the grounds that itis vague. Without waiving the objection, ifthe request is referring to the new lessee ofthe aircraft, thenthe request is Admitted.
17. The flight was considered a "maintenance acceptance flight". Response: Admitted
18. Priorto the flight, the livery ofthe newlessee (STCR) waspainted onthe aircraft. Response: Admitted
19. Pursuant to the terms ofthe BrendanAirways, LLC d/b/a USA 3000 Airlines lease with ILFC the aircraft was required to be repainted before the aircraft leftthe possession ofBrendan Airways, LLC d/b/a USA 3000 Airlines. Response: Admitted
20. The spoiler servo actuators for left wingroll spoilers three and five were put in the maintenance mode duringthe process ofpainting the aircraft with livery ofthe newlessee (STCR). Response: Followingreasonable inquiry, Respondent is unable toAdmitorDenythis statement because Respondent has no specific knowledge ofwhenthe 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 ofthis statement is ongoing.21. The aircraft was painted with the livery ofthe new lessee, (STCR), by AARAircraft Services. Response: Following reasonable inquiry, Respondent is unable to Admit or Denythis statement because Respondent has no specific knowledge ofwho painted the livery ofthe new lessee, (STCR) onthe aircraft. Discovery from third parties into the factual basis ofthis statement is ongoing.
22. AARAircraft Services is a repair stationthat is the holder ofan FAA AirAgency Certificate qualifying it to conduct operations under Part 145 ofthe Federal Aviation Regulations. Response: Admitted
23. Priorto the flight, Brendan Airways, LLC d/b/a USA 3000 Airlines hired AARAircraft Services to perform maintenance onthe aircraft so as to allow it to bereturned to a condition that would permit it to bereturned to ILFC. Response: Admitted
24. Pursuantto the manuals ofBrendanAirways, 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 

### irlthe maintenance mode. Response: Denied
25. Ifthe 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 forleft wing roll spoilers three and five areplaced in the maintenance mode. Response: Denied
26. Atno time subsequentto the flight did aninspection ofthe ECAM system reveal that there was a problem withthe system that could have caused itto malfunctionjustpriorto takeoff duringthe flight. Response: Admitted27. Within two days after the flight the spoiler servo actuators on left wing roll spoilers three and five were again put inmaintenance mode to see what messages would appear onthe ECAM andthe ECAMreported that left and right wing roll spoilers three and five were inoperable. Response: Admitted
28. During the flight and priorto takeoffthe pilots aboard the aircraft failed to complete a successful flight control check. Response: Denied
29. During the flight and priorto takeoffthe 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 ofJuly, 2010. WASHINGTON AVIATION GROUP, PC AND THE LAW OFFICES OF JASON A. DICKSTEIN**By~~~~~==~===-** __ Jason Dickstein gton Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 Tel: (202) 628-6776 Attorney for Respondent BrendanAirways, LLC d/b/a USA3000 AirlinesBEFORE THE U.S. DEPARTMENT OF TRANSPORTATION The Honorable Chief AdministrativeLawJudge RonnieA. Yoder

In the matter of BRENDANAIRWAYS, LLC, d/b/a USA3000 Airlines Respondent DMS No.: FAA-2009-0032 FAA DocketNo.: CP09EA0007 FAA CaseNo.: 2008EA170038 RESPONSE TO COMPLAINANT'S FIRST SET OF INTERROGATORIES,

REQUEST FORADMISSIONS, AND REQUEST FOR PRODUCTION OF DOCUMENTS
Theundersigned hereby certifies that she caused the attached
• RESPONSE TO COMPLAINANT'S FIRST SET OF INTERROGATORIES, REQUEST FORADMISSIONS,AND REQUEST FOR PRODUCTION OF DOCUMENTS To be filed at the addresses listed belowby ovemightFedEx service, onthe date indicated below. Federal Aviation Administration 600 Independence Avenue, SW 

# (oe\&\N A L. (\JUT) 0

# ~E. c..oP'r) Iq§-" Wilbur Wright Building

- Suite 2WI000 Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Andto be served on the persons atthe addresses listed below by the same method as the filing method, onthe date indicated below. David M. Cohen, Attorney Federal Aviation Administration Office ofthe Regional Counsel, EAL-7 1Aviation Plaza Jamaica, NY 11434 Tel: (718) 553-3270 Fax (718) 995-5699 The Honorable Ronnie A. Yoder ChiefAdministrative LawJudge Office ofHearings, M-20 Room E12-320 US Department ofTransportation 1200 NewJersey 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 LawJudge RonnieA. Yoder DMS No.: FAA-2009-0032 FAA Docket No.: CP09EAOO07 

### SEP - 2 2010 Inthe matter of FAA Case No.: 2008EA170038
LTS -BRENDAN f RWAYS,LLC, AMENDED ANSWER EIS

_ d/b/a USA 000 Airlines CRTS Responden

Comes nowthe Respondent, BrendanAirways, LLC d/b/a USA3000 Airlines [hereinafter "USA3000"] and AMENDS its ANSWER inthe above-captioned matter, previously filed June 16,2010,to include an AFFIRMATIVE DEFENSE that became ripe onAugust 24, 2010. For the convenience ofthe parties and the Court, the entire Answer is restated here as it was originally stated (with only the addition ofthe 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 thatno appeal was being filed andthat 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 extentthat the use ofthe word "operated" implies anything otherthan an operational check ofmaintenance performed. 4. Paragraph II(4) is admitted in part, to the extentthat maintenance was performed, but denied inpart, inthat placement ofspoiler servo actuators inthe maintenance mode was notpart ofthe maintenance performed onthe aircraft.

RESPONDENT's AMENDED ANSWER Page I Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776I' 

## ,

5. Paragraph II(S) is denied to the extent that it implies a link between the maintenance and the spoiler servo actuators being placed inthe 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 extentthat such a warning was visible onthe ECAM, but denied in part, inthat the warning was cleared and reasonably deemed bythe flight crewto 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, 

### inthat the landing was aborted, but denied to the extentthat the paragraph claims a causal relationship. 19. Paragraph II(19) is denied. 20. Paragraph II(20) is denied. 21. The Legal Conclusions ofParagraph III are denied. 22. The Legal Conclusions Concerning Penalty found 

### inParagraph IV are denied.


### AFFIRMATIVE DEFENSE OFCOLLATERAL ESTOPPEL
23. Tony Scot Surratt andFrank William Walker were the pilots onthe aircraft in this case. 24. The Administratorbrought claims against Surratt and Walker for violation of 91.7(a), which is the same violationthat is alleged inthe case atbar. RESPONDENTs AMENDED ANSWER Page 2 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-677625. The 91.7(a) issue decided inthe 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 ofa violation. This decisionwas 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 inthis adjudication. 29. The NTSB held that the MELs did not apply to this situation, becausethe pilots did not have knowledge ofthe spoiler issues before the flight. 30. The NTSB rejected a motion for reconsideration ofits Order onJune 25,2010. 31. The prior adjudication became final onAugust 24, 2010, whenthe period for appeal lapsed without a notice ofappeal. 32. The Administrator was a partyto the prior litigation. 33. Application ofestoppel in this case would not work an il\iustice to any party.
RESPECTFULLY SUBMITTED this 30th day ofAugust, 2010.
WASHINGTON AVIATION GROUP, PCAND THE LAW**~~~~ES** OF JASON A DICKSTEIN

, I 

# / ' !**.~** By 

# L,: r.J- ?-

... / Jason Dickstein Washington Aviation Group, PC and the ( Law Offices ofJason A. Dickstein

2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 Tel: (202) 628-6776 Attorney for Respondent BrendanAirways, LLC d/b/a USA3000 Airlines

RESPONDENT's AMENDED ANSWER Page 3 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776BEFORE THE US DEPARTMENT OF TRANSPORTATION 

### The Honorable Chie Administrative LawJud e RonnieA. Yoder DMS No.: FAA-2009-0032 FAA DocketNo.: 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 atthe addresses listed belowbyFedEx three-day service, onthe date indicated below. Federal Aviation Administration 600 Independence Avenue, SW Wilbur Wright Building

- Suite 2WI000 Washington, DC 20591 Attn: HearingDocket Clerk, AGC-430 Ai:td to be servedonthe persons at the addresses listedbelowby the same method as the filing method, onthe date indicated below. David M. Cohen, Attorney Federal Aviation Administration Office ofthe Regional Counsel, EAL-7 1Aviation Plaza Jamaica, NY 11434 Tel: (718) 553-3270 Fax: (718) 995-5699

CERTIFICATE OF SERVICE Page 4 The Honorable Ronnie A. Yoder ChiefAdministrative LawJudge Office ofHearings, M-20 Room E12-320 US Department ofTransportation 1200NewJersey 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 ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776

### , , " EXHIBIT 

# I 

# s

U.S. DEPARTMENT OF lRANSPORTATION

FEDERAL AVIATIONADMINISTRATION OFFICE OF HEARINGS

WASHINGTON, D.C.

In the Matter ofBrendanAirways, LLC DMS No. FAA-2009-0032 FAA DocketNo. CP09EA0007 FAA CaseNo. 2008EA170038 ChiefAdministrative LawJudge Yoder
AMENDED COMPLAINT**~** 

### iii

The Federal Aviation Administration (FAA), by counsel, hereby files its Amended Complaint, pursuant to Rule 208 ofthe Rules ofPractice (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 proposedto assess a civilpenalty 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 ofAir 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).

### 3. On or about May 17, 2008, you operated an Airbus A320-212, (hereinafter "the aircraft"), identification number N265AV, 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 priorto 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.
. Byvirtue ofthe foregoing, you performed maintenance, without doing the work in such a manner that the condition ofthe aircraft, airframe, aircraft engine, propeller, or appliance worked on was at least equal to its original orproperly altered condition. 9. During the flight, the aircraft took offat 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 AircraftMonitor (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 spoilerNo.3; b) left wing roll spoilerNo.5; c) right wingroll spoilerNo.3; d) right wing roll spoilerNo. 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 spoilerNo.3; b) left wing roll spoilerNo.5; c) right wing roll spoilerNo.3; d) rightwingroll spoilerNo. 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 spoilerNo.3; b) left wing roll spoilerNo.5; c) right wing roll spoilerNo. 3; d) right wing roll spoilerNo.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 spoilerNo.3; b) left wing roll spoilerNo.5; c) right wing roll spoilerNo.3; d) right wing roll spoilerNo.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 leftwing 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 endangerthe life orproperty ofanother.
III 

### By reason of the foregoing facts and circumstances, Respondent violated the following section(s) ofthe 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 ofthe 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 ofsuch 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 nopersonmay operate a civil aircraft unless it is in an airworthy condition. d. Section 91.13(a), which states that noperson 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 civilpenaltynot to exceed $11,000 for each ofthe violations alleged. 2. Under the facts and circumstances ofthis 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, AlfredR. Johnson, Jr. Regional Counsel

By: David M. Cohen Attorney Federal AviationAdministration 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, SubpartG, ofthe FederalAviation 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 ChiefofAdministrative LawJudge Office ofHearings, M-20 Room E12-320 US Department ofTransportation 1200 New Jersey Avenue, SE Washington, DC 20590 Jason Dickstein Washington Aviation Group, PC & 

### Law Offices ofJason Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 Federal AviationAdministration (Original and one copy) 800 IndependenceAvenue, S.W. Washington, D.C. 20591 Attn: HearingDocketClerk, AGC-430 Wilbur Wright Building

- Room2014

LisaHooks Paralegal Specialist Federal Aviation Administration Office ofRegional Counsel 1AviationPlaza Jamaica, NY 11434

8

# ©©~~ 

# I I EXHIBIT 

# (;
BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION
.... ____ '/IIJIIIIIII The Honorable Chief Administrative LawJudge RonnieA. 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 shouldbe dismissed. The Part 43 allegations can be decided on the fact that the Administratorhas admitted that he does not know key facts that wouldbe necessary to support the Part 43 allegations, including the fact that the Administrator cannotpoint to any maintenance that was incorrectlyperformed 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 AdministratorFails to IdentifY WhatMaintenance Was Improperly Performed
........................................................................................................................4 C. The CaseAgainst 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 ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202·628·67762. Issues that Are Not Subject to Collateral Estoppel
...........................................8 B. The 91.7(a) Claim Must Be Dismissed Because ofCollateral Estoppel
..............9 I. Elements ofCollateral Estoppel
........................................................................9 2. Analysis ofCollateral 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 ofLimitations 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 Withthe 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 PriorAdjudication Ended in a Final Judgment onthe 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 ofCollateral 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 Part43 Claims
........................................................... 19 2. TheAdministratorBears the Burdento Demonstrate SignificantProbative Evidence in Support ofIts Position
...........................................................................20 3. The AdministratorDoesNot Say What Maintenance Was Performed Inadequately
..............................................................................................................21 4. TheAdministratorDoes Not Knows Who Put the Spoilers In Maintenance Mode and Does Not Know HoworWhen the Spoilers Were Put in Maintenance Mode 22 5. OtherPossible Causes Make it Inappropriate to Assume Causation
..............24 6. USA 3000 DidNot Performthe 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 FlightWas Outside the Scope ofPart 121
............................................29
RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 2 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776B. Application ofthe Collateral Estoppel Argument to the 14 C.F.R. 

### § 121.153(a)(2) Claim
...................................................................................................32 DECLARATION OF JOSEPH MILLER
.........................................................................33 Joseph MillerExhibits
.......................................................................................................38 APPENDIX C: Judge Fowler'sDecision in Babbitt v. Surratt
.............................................. APPENDIX D: NTSB's Decision Affirming Babbittv. Surratt (on appeal)
......................... APPENDIX E: NTSB's Decision Affirming Babbitt v. Surratt (onreconsideration)
........... APPENDIX F: Complainant's First Response to Respondent's First Set ofInterrogatories, Requests for Production ofDocuments, 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 ofDocuments, 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 N265AV ["The Aircraft"]. The Aircraft was ownedby ILFC, and it was operated under lease by USA 3000. See Declaration ofJoseph Miller at**~~** 3-5. USA 3000's lease onThe Aircraft was comingto an end. See id. at**~** 6. Itis normal, at the end ofsuch a lease, to putthe aircraft into heavy maintenance inorderto return itto the condition required by the lease. See id. Atthe end ofthe maintenance cycle, such a leased aircraft would be returned to the lessor. See id. at**'11~** 6-10. Inthis case, this was exactly what was occurring inthe Spring of2008. Id. USA 3000 contracted with AARto perform lease-end heavy maintenance on The Aircraft. See id. at**~** 6. Thepurpose ofthe heavy maintenance was to make The Aircraft ready to be returned to ILFC. See id. at**~~** 6-10. ILFC also contracted with AARto perform certain workto make the aircraft ready for the next lessee (State Transport Russia). See id. at**~~** 34-35.

RESPONDENT'S MOTIONFOR SUMMARY JUDGMENT Page 3 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007·Tel: 202-628-6776On May 15, 2008, tests onthe 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: "Priorto the flight, maintenance was performed on the aircraft in which the spoiler servo actuators for left wingroll spoilers three and five were placed in the maintenance mode." Complaint atAllegation 4 ofSectionII.
USA 3000 soughtdiscovery onthis allegation, and asked: "Interrogatory #I: Allegation 4 ofsection II ofthe Complaint contends that the spoiler servo actuators were placed inthe 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 ofDocuments, and Requests for Admissions, Interrogatory 

### #1. TheAdministrator answered by admitting that: "the Complainant does not know the exact date ofthe maintenance
... the Complainant does not knowduring whatmaintenance operationthe spoiler servo actuators wereplaced in the maintenance mode, howeverit appears thatthe maintenance was performed by AAR." Complainant's FirstResponse to Respondent's First Set ofInterrogatories, Requests for Production ofDocuments, and Requests for Admissions, Response to Interrogatory #I. The part ofthis response that blames AAR for placing the spoilers in maintenance mode is inconsistent with documentsproduced by the Administrator in response to discovery in this case. In several FAA ProgramTracking andReporting Subsystem

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 4 Washington Aviation Group, PC andthe Law Offices ofJason 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). Thediscovery evidence shows that the Administrator does not know who placed the spoilers in the maintenance mode; and the Administrator cannot showthat any AAR employee placed the spoilers inthe maintenance mode. This is a critical evidentiary failure, because there is also no evidence that any maintenance was incorrectly performed. Instead, the Administratorrelies on the propositionthat the spoilers were in maintenance mode, and works backwards toassume all ofthe otherfacts about the allegation

- the relationship between performance ofsome maintenance and the spoilers arrival into maintenance mode (causation) is assumed, and also the propositionthat maintenance was improperlyperformed (the alleged causal act) is also assumed. The Administrator cannot reasonably claimthat he has found additional facts to support the allegation that USA 3000 performed maintenance incorrectly (allegation four inthe Complaint), because in interrogatory#2, USA 3000 asked: Interrogatory #2: Please identifY all ofthe facts that you contend support Allegation 4 ofsection II ofthe Complaint. Respondent's First Set of Interrogatories, Requests for Production ofDocuments, 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 afterthe flight it was determined through visual inspection that the spoiler servo actuators were placed inthe maintenance mode. Complainant's First Response to Respondent's First Set ofInterrogatories, Requests for Production ofDocuments, and Requests for Admissions, Response to Interrogatory #2.
RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007·Tel: 202-628-6776 Page 5Itis clear that the Administrator's position is that the only evidence ofany 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 supportthe allegation that USA 3000performed maintenance incorrectly. And as we see in the enforcement case against the pilots, Judge Fowlerdisagreed with the Administrator's contention concerning pre-flight indications offailures. C. The CaseAgainst the Pilots The Administratorbrought 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 ChiefJudge Fowler. Judge Fowlerfound that the pilots did notknowthat the spoilers were inoperative atthe time oftake-off. See Babbitt v. Surratt, SE-18562, 2009 NTSB LEXrS 106 at *12, *14, 

## *16 (September2, 2009). He found thatthe 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 Fowlernoted thatthe pilots did not have knowledge ofan unairworthy condition during the flight. rd. at 

## *1 

### O. Because the pilots did not have knowledge ofanunairworthy


# . - condition atthe time oftakeoff, there was no violation of91.7(a) atthe time oftakeoff. rd. at *14. Because the QRH permitted continued flight upon learning ofinoperative spoilers, and no otherresource provided contrary guidance, Judge Fowler heldthat there was no violation of91.7(a) after the time oftakeoff. rd. at *14-* 15. Judge Fowler specificallyfound that eachpilot 

### did not operate the aircraft in a careless manner so as to endangerthe life orproperty ofanother andtherefore did not violate 14 C.F.R § 91.13(a). rd. at *14, *17-18. On appeal, the National Transportation Safety Board (NTSB) affirmedJudge Fowler's rulings. Babbitt v. Surratt, EA-5514, 2010 NTSB LEXIS 31 at *26-*27 (March 23, 2010). The Board agreed thatthe pilots had the discretion to continue withthe flight, and that the decision was reasonable. rd. at *26-*27. The Administratorpetitioned for reconsideration ofthe Board's decision, and the Board affirmed their own decision. Babbittv. Surratt, EA-5527, 2010 NTSB LEXIS 56

RESPONDENTS MOTION FOR SUMMARY JUDGMENT Page 6 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776(June 25, 2010). On reconsideration, the Board clearly stated that the Administrator had failed to provethatthe pilots had knowledge ofan unairworthy condition prior to takeoff. [d. at *2. The Board explained that the evidence showed that the pilots had a "green" ECAM (free oferrormessages) 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 TheAdministrative LawJudge shall grant a party's motion for decision ifthe evidence shows that (1) there is no genuine issue ofmaterial 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. Summaryjudgment is appropriate whenthere is no genuine issue ofmaterial fact and the movingparty is entitled tojudgment as a matter oflaw (See 14 C.F.R. 

### § 13.218(£)(5); cf. Fed. R. Civ. P. 56(c» orwhen no reasonable decision-maker could return a verdict forthe nonmovingparty. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). One ofthe mainpurposes ofasummaryjudgmentmotion 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). Inthis motion, USA 3000 hasthe burden ofshowing that there is no genuine issue ofmaterial fact disputed bythe parties. 14 C.F.R. 

### § 13.218(£)(5). Although the courtmust examine the evidence inthe light most favorable to the non-moving party and draw all reasonable inferences inthatparty's favor, if(as in this case) there are no relevant facts supporting the non-moving party'sposition, 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 notrely

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 7 WashingtonAviation Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776on a mere assertions or unsupported claims. In Re Horizon Air Industries, Fed. Av. Dec. 1996-24. 1. 

### Issues PreviouslyDecided 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 subjectto the doctrine ofcollateral estoppel. Because they have already been decided, the Administrator is estopped from denying the facts as they havebeen found in the earlier case. Thus, those material facts are not reasonably in dispute. In particular, the Administratorhas already fully litigated the 

### § 91.7(a) and 

### § 91.13(a) claims against the pilots ofthe Aircraft (claims III(c) and HI(d) ofthe Amended Complaint). TheNational Transportation Safety Board found that neither ofthose claims could be sustained against the pilots. As the pilots are the only relevant agents ofthe air carrier for purposes ofthese claims, no agent ofthe Respondent could have committed these violations and thus the Respondent did not commit these violations. 

### 2. Issues thatAre NotSubjectto Collateral Estoppel Except with respect to affirmative defenses, the Administratorbears the ultimate burden ofproofin civil penalty cases. 14 C.F.R. 

### § 13.224(a). On issues where the non-movant (the FAA, inthis case) bears the ultimate burden ofproofattrial, the non-movant may not defeat a motion for summaryjudgmentby 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 mustpresent "significantprobative evidence tending to support the complaint." Summers, 127 F.3d at 1152. Summaryjudgment shouldbe granted against the complainantwhen the complainant "rest[s] onhis allegations
... without any significantprobative evidence tending to support the complaint." Anderson, 477 U.S. at 249.

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 8 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776With respect to the Part 43 claims that the Administrator has alleged in this case, the Administrator cannot present significant probative evidence tending to supportthe allegations ofthe 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 inthe Complaint!
B. 

### The 91.7(a) Claim MustBe Dismissed Because ofCollateral Estoppel
USA 3000 is a corporate entity and therefore its actions are the actions ofits agents; its knowledge is the knowledge ofits agents. USA 3000 had two agents onthe aircraft who were operating the aircraft on behalfofthe company. They were Captain Surratt and Captain Walker. The Administrator has already unsuccessfully brought certification actions against these two pilots. As part ofthe decision inthose actions, the NTSB found that neither Captain S'urratt nor Captain Walkerknewthat the spoilers were in maintenance mode. Furthermore, the NTSB found itwas reasonable that thepilots did not know ofthe spoilers being inmaintenance mode. Based on lack ofknowledge, the Board found that the two pilots could not have violated 91.7(a) because they did not know (orreasonably should have known) ofthe spoiler issues until they were inthe air, and they did notknow that the spoilers were in maintenance mode until afterthe flight was over.

1. 

### Elements of

### Collateral Estoppel
Collateral estoppel prevents a party from relitigating an issue afterthe party has had a full and fair opportunity to present its case in a priorproceeding. Itbarsrelitigation ofan issue offact orlawthat was actually litigated and resolved in a prior court

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 9 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776determination, even ifthe issue recurs in the context ofa different claim. 

### E,g, Taylorv. Sturgell, 553 U.S. 880,892 (2008). Collateral estoppel has four elements: 1) the issue decided in the priorproceeding 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 finaljudgment on the merits; and, 4) the party against whomthe doctrine is asserted had a fair opportunity to litigate the issue (e.g. it was either a party to the litigation orin 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 ofCollater·,ll Estoppel ArgumentWith Respectto 

### the 14C.F.R. § 

### 91.7(a) Claim 

### a) The Issue Decidedin thePriorProceeding isIdentical With theIssue Presentedin theSecond
Inthis 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 inthe prior Surratt and Walker case. See Babbitt v. Surratt, 2009 NTSB Lexis 106 (September 2,2009), affirmedon appealEA-5514, 2010 NTSB LEXIS 31 (March 23, 2010), motion for reconsideration deniedEA-5527, 2010 NTSB LEXIS 56 (June 25, 2010). The final decision ofthetrialjudge, as well as the denial oftheAdministrator's appeal to the Board andthe denial ofthe Administrator's motion for reconsideration are attached as appendices to this Motion. In both cases, the allegations are based upon aUSA 3000 maintenance acceptance flight ofan Airbus A320 onMay 17,2008 from Miami International Airport. Compare

RESPONDENTS MOTION FOR SUMMARY JUDGMENT Page 10 Washington Aviation Group, PC and the Law Offices ofJasonA. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007·Tel: 202-628·6776Babbittv. Surratt, EA-5514, 2010 NTSB LEXIS 31 at *1 (March 23, 2010) (identifying the flight) with In the matter ofBrendan Airways, LLC, FAA DocketNo. CP09EA0007, Complaint at paragraph U(3) (January 14,2009) (identifying the same flight in the case at bar). Both the priorcase and this case are dealing with the same flight. Both cases alleged that the flight inquestion 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, 20I0) (explaining that the pilots were charged with violating section 91.7(a) with respect to the maintenance acceptance flight) with In the matter ofBrendanAirways, LLC, FAA Docket No. CP09EA0007, Complaint at paragraph III(e) (January 14,2009) (chargingUSA 3000 with violating section 91.7(a) with respect to the maintenance acceptance flight). Case lawhasheld that an allegation ofa section 91.7(a) violation (alleging unairworthy operation ofan aircraft) has a knowledge element (itis 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 (November07, 1994) (NTSB Docket 207-EAJA-SE-13563). The**b~havior** ofpilots charged with airworthiness violations shouldbe measured by whatthe pilots knew or should have known about the aircraft, with this standard requiring the pilots to have reacted reasonably and prudently to information ofwhich they are aware. Richards v. Olsen, NTSB OrderNo. 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 ofthe agent acquired by the agent in the course ofthe principal's business. E.g. Curtis, Collins & Holbrook Co. v. United States, 262 U.S. 215,222 (1923). Thus, in orderto prove that USA 3000 has the requisite knowledge in order to be found culpable ofa violation, the Administrator must prove that USA 3000's agents had the requisite knowledge. Inother words, the corporation has no knowledge for purposes

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page II Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776ofthis 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 evidencethat supports the Administrator's claim that the individual was 'aware.'" The Administratorresponded to that interrogatory with the following statement: "Both ofthe pilots who operated the aircraft during the flight either were aware that the aircraft's ECAM indicated that left and right wingroll spoilers 3 and 5 were not operational. Furthermore ifthe 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 sawthe ECAM indications, the ECAM system was functioning properly, ifthe ECAM system is functioning properly the ECAM will showthat these spoilers are not operational ifthey are put inthe maintenance mode, the flight control checkrequires the pilots to testthe spoilers, and ifthe 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 thatthe Administrator agrees that the pilots' knowledge concerning the airworthiness issues inthis case is the onlyknowledge that is relevant in this case. Because thepilots' knowledge was a critical deciding element ofthe prior case, and is a key element ofthe case at bar, the knowledge issue decided in the prior proceeding is identical with the knowledge issue that is presented in this matter.

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 12 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007·Tel: 202-628-6776

### b) The PartyAgainst Whom CollateralEstoppelis 

### Asserted Was (J 

### Partyill thePrior Utigatioll TheAdministrator ofthe Federal Aviation Administration, against whom this collateral estoppel is asserted, was the Complainant in the Surratt and Walker case. The matterwas actually litigated in a two-day trial. Babbitt v. Surratt, EA-55 14, 2010 NTSB LEXIS 31 at *1 (March 23, 2010).


### c) 

### The PriorAdjlldication Endedin a Finaljudgmenton theMerits Babbitt v. Surratt and Walker ended in a finaljudgrnent onthe merits. See Babbitt v. Surratt, 2009 NTSB Lexis 106 (September 2, 2009). The Board denied both an appeal and a motion for reconsideration ofthe appeal. See Babbittv. Surratt, EA5514,2010NTSB 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 inthe prior case was that Surratt and Walker

- the two pilots flying the aircraft

- did not have the requisite knowledge to support the contentionthat either had violated 14 C.F.R. 

### § 91.7(a) byflying an unairworthy aircraft; the Board found that USA 3000's agents, the pilots, did nothavethe requisite level ofknowledge 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 inorder to satisfy the knowledge element ofasection 91.7(a) allegation).

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 13 Washington Aviation Group, PC andthe Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202·628-6776

### d) The,1dministmtor(the Partyilgainst WhoTII t'he DoctrineisAsserted) Had a Fair Opportunity to Litigate tile Issue Because theAdministratorwas a Party to tbe Prior Litigation The Administrator ofthe Federal Aviation Administration, against whom this collateral estoppel is asserted, vigorously argued the knowledge issue in the prior case. In fact, the Administrator appealed onthat issue, and moved for reconsideration on the knowledge issue. See,!h&, Babbittv. Surratt, EA-5527, 2010 NTSB LEXIS 56 at *9 (June 25, 2010) (affirming that the pilots "didnot know, nor should have known, thatthe 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 priorruling concerning this issue. In summary, the doctrine ofcollateral estoppel applies in this case because in a prior adjudication, the NTSB found that the pilots did not have the requisite knowledge to sustain anallegation ofa 14 C.F.R. 

### § 91.7(a) violation concerning the same flight that is at issue in this case. The Administrator's answerto interrogatory 19 makes it clearthat there are no other agents through whom the USA 3000 could have acted, that would have

### h~ relevant knowledge related to the airworthiness ofthe aircraft. Consequently, USA 3000 could not possibly have violated section 91.7(a) because none ofits agents have the requisite knowledge to sustain such an allegation ofviolation.


### C. The 91.13(a) Claim Must Be DismissedforStatute 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 Motionfor 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 ofChiefAdministrative LawJudge, served inthis case onFebruary 19, 2009, required all amendments to be filed by April 20, 2009. This amendment failed to

RESPONDENT'S MOTION FOR SUMMARY mDGMENT Page 14 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776meet that deadline. I Notice in the form ofan 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 ofthe Answer to the 91.13(a) claim. The underlying allegations ofthis case happened on orbefore May 17,2008. E.g. Complaint at 

## 13. USA 3000 was not apprised that a section 9J.J3(a) violation would be claimed as a part ofthis case until the October 19, 2010 Amendment. Such a claim was not part ofany ofthe earlierpre-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 ofproposed civil penaltytothe person charged with a violation 14 C.F.R. § 13.J6(f). Notice ofthe 9J.J3(a) claim was not made until more than two years after the alleged eventhad 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 ofviolation. However, the Complaint was first served January 6, 2009, and it was a reproduction ofthe Notice ofProposed Civil Penalty that was first served August 21,2008, so the Administrator's so-called error has been circulating for overtwo years. Ifthis really was an inadvertent error, then it shouldhave 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. Becausethere is no reasonable basisfor the delay, and because the Amendment violates the Court's Order ofFebruary 19,2009,the Court should not exercise any discretion in accepting the late-filed addition to the Complaint. The 9J.J3(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 ofthe defense ofcollateral estoppel onAugust 30th, 20I0, 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 ofthe Board had passed (one ofthe elements ofcollateral estoppel is finality ofthejudgmentuponwhich collateral estoppel is based).

The Respondent has not filed notice ofthe defense ofcollateral estoppel with respect to this cause of action under § 91.13(a), because the cause ofaction was not asserted until October 19,2010, after notice of that defense had been filed. This document serves as notice ofthe assertion ofsuch a defense in response to the § 91.13(a) claim.

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 15 Washington Aviation Group, PC andthe Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776

### D. The 91.13(a) Claim MustAlso 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 Babbittv. Surratt, 2009 NTSB Lexis 106 (September 2,2009), 

### affirmedon 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. TheIssue Decided inthe PriorProceedingis 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. 

### § 91.13(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 ofan AirbusA320 on May 17,2008 from Miami International Airport. Both allegations claim thatthe flight inquestion was flown in a careless orreckless 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 91.13(a) with respect to the maintenance acceptance flight) with In the matter ofBrendan Airways, LLC, FAA DocketNo. CP09EA0007, Amended Complaint at paragraph HI(d) (January 14,2009) (charging USA 3000 with violating section 91.13(a) with respect to the same maintenance acceptance flight). It has long beenrecognized 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 ofthe agent acquired by the agent 

### in the course ofthe principal's business. 

## 11& Curtis, Collins & Holbrook Co. v. United States, 262 U.S. 215, 222 (1923).

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 16 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776Thus, in order to prove that USA 3000 has the requisite knowledge in orderto be found culpable ofa reckless or careless flight violation, the Administrator mustprove that USA 3000's agents had the requisite knowledge. In other words, the corporation has no knowledge for purposes ofthis analysis exceptthe knowledge ofits ownemployees, 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 behaviorthat must be analyzed as the corporate behavior. In Paragraph 20 ofthe Complaint, the Administrator claimed "Duringthe/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 orderto better gauge the scope andreason for the factual allegation, Respondent's Interrogatory #7 in this matter asked the Administratorto "Please identify all oJtheJacts thatyou contend supportAllegation 20 oj section IIojthe Complaint. " The Administratorresponded to that interrogatory with the statement, "See the above andthe Complaint." Neitherthe complaint nor the other answers to the interrogatories identify any person who acted in a careless orreckless 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 ofwhat the Administrator claims to havebeenreckless orcareless in the 91.13(a) claim. Because the pilots' behavior was a critical deciding element ofthe prior case, and is a key element ofthe case atbar, the reckless/careless behavior issue decided inthe priorproceedingis identical with the reckless/careless behaviorissue that is presented in this matter. 

### 2. The Parly

### Against Whom Collateral Estoppel isAsserted Was a Party 

### in the Prior 

### Litigation
The Administrator ofthe Federal Aviation Administration, against whom this collateral estoppel is asserted, was the Complainant in the Surratt and Walker case. The

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 17 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776matter 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 PriorAdjudication Ended in a Final Judgment on the Merits
Babbittv. Surratt and Walker ended in a finaljudgmentonthe merits. See Babbitt v. Surratt, 2009 NTSB Lexis 106 (September2, 2009). The Board denied both an appeal and a motion for reconsideration ofthe appeal. See Babbittv. Surratt, EA5514,2010NTSB LEXIS 31 (March 23,2010) (affirming on appeal), and Babbittv. 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 orcareless 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 orproperty ofanother); see also Babbitt v. Surratt, EA-5514, 2010 NTSB LEXIS 31 (March 23,2010) (denying the FAA's appeal ofthe 

### § 91.13(a) charge), and Babbittv. Surratt, EA-5527, 2010 NTSB LEXIS 56 (June 25,2010) (denyingthe FAA's motion for reconsideration ofthe 

### § 91. 13(a) charge).



### 4. TheAdministrator (thePartyAgainstWhom the Doctrine is Asserted) Had a Fair Opportunity to Litigate tllc 

### Issue Because the 

### Administratorwas a Partyto the Prior Litigation
The Administrator ofthe Federal Aviation Administration, against whom this collateral estoppel is asserted, vigorously argued the knowledge issue inthe priorcase. Infact, 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). Becausethe central issue upon which collateral estoppel is founded has been fully

RESPONDENT'S MOTION FOR SUMMARY Washington Aviation Group, PC and the JUDGMENT Law Offices ofJason A. Dickstein Page 18 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776litigated and appealed, it would not be an injustice to rely n the prior ruling concerning this issue. In summary, the doctrine ofcollateral estoppel applies in this case because in a prior adjudication, the NTSB found that the pilots onthe flight did not act recklessly or . carelessly in violation of 14 CFR91.13(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 orcarelessly withrespect to the case at bar. Consequently, USA 3000 could not possiblyhave violated section 91.13(a) because none ofits agents acted in violation ofthatregulation. 

### E. Conclusion ofCollateral EstoppelArguments
In light ofthe fact that each ofthe elements ofcollateral estoppel have been met with respect to the above-described claims, the court should be bound by the prior factual findings ofthe NTSB withrespect to this matter.

e The Administrative Law Judge should find that the knowledge element ofthe airworthiness claim, which was fully litigated inthe Surratt andWalker case, has been shownto be missing and thattherefore the airworthiness claim under 91.7(a) must be dismissed;
• The Administrative Law Judge shouldfind that The Aircraft was notflown recklessly orcarelessly, based on the full litigation ofthat 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 inthis case broughtunder sections 91.7(a) and 91.13(a) shouldbe dismissed.



### r. The 

### 14c.r.R. §§ 43.13(3) and 43.1.3(b) Claims Must Be Dismissed 1. 

### Legal Standm'ds for the Part43 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 ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776(a) Eachpersonperformingmaintenance, alteration, orpreventive maintenance on an aircraft, engine, propeller, or appliance shall use the methods, techniques, andpracticesprescribedin the current mamifacturer's maintenance manualor Instructionsfor ContinuedAirworthinesspreparedby its manufacturer, or other methods, techniques, and practices acceptable to theAdministrator, 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 ofthe Administrator orwere 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) Eachperson maintaining oraltering, orperformingpreventive maintenance, shall do that workin such a manneranduse materials of such a quality, thatthe condition of the aircraft, airframe, aircraft engine,propeller, or appliance workedon will be atleast equal to its original orproperly alteredcondition (with regardto aerodynamic function, structuralstrength, resistance to vibration and deterioration, andother qualities affictingairworthiness). 

### As with the 43.l3(a) claim, an integral element to a 43.13(b) claim is the ailegation thatthe Respondent performed the maintenance. Section43.13(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. TheAdministratorBears the Burdento 

### Demonstrate SignificantProbative Evidence 

### in SupportofIts Position Except with respectto affirmative defenses, the Administratorbears the ultimate burden ofproofin civil penalty cases. 14 C.F.R. 

### § 13.224(a). As discussed 

### in section A.2 ofthis brief, supra, the Administrator has anobligation to present significant probative evidence in favor ofits position. Despite this burden, the Administrator has failed to be able to evenidentify a maintenance operationthat was incorrectly performed.

RESPONDENT'S MOTION FOR SUMMARY JUDGMENT Page 20 Washington A vialion Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776Moreover, the alleged evidence of improper maintenance is limited only to the fact that two spoilers were placed in the maintenance mode, and the Administratorhas admitted that he has no idea who placed the spoilers inthe maintenance mode. TheAdministratorhas admitted that he cannot point to any maintenance operation thatwas improperly performed, and he cannotprove 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 ofthe foregoing, [USA 3000] performed maintenance." Complaint at**~** 7. The reason for this incomplete segue is simple. USA 3000 did notperform any inadequate maintenance in this case. In interrogatory #1, USA 3000 asked the Administrator to identify the improperly performed maintenance activity that is atthe root ofthe Part43 allegations: Interrogatory #I: Allegation 4 ofsection II ofthe Complaintcontends thatthe spoiler servo actuators wereplaced in the maintenance mode during maintenance. Onwhat date and during whatmaintenance operation were the spoiler servo actuators placed in the maintenance mode? The Administrator answeredby admitting that "the Complainant does not know the exact date ofthe maintenance
... the Complainant does not knowduring what maintenance operationthe spoiler servo actuators were placed inthe maintenance mode, however it appears thatthe maintenance was performedby AAR." Complainant's First Response to Respondent's First Set ofInterrogatories, requests for Production ofDocuments, 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 ofJason 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 ofthe 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 ofthe other possibilities. The Administrator's conclusion is actually unreasonable 

### in light ofthe 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 ofthis brief. The Administrator fails to say that the maintenance performed in this case was performed under the direction ofUSA 3000, because the task that was performed (and that led to the spoiler issue) was not performed under USA 3000's direction.

-'I-. 

### TheAdministrator Does Not Knows Who Put

### the Spoilers [n Maintenance Mode and Does Not KnowHow orWhen the SpoilersWere Putin 

### 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 ofJason A. Dickstein 2233 WisconsinAvenue, 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 inAppendix 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 notproduce evidence ofany wrongdoing on the part ofAAR." Id.
In addition, USA 3000's interrogatory 10 asked Interrogatory 10: Is itthe Administrator's contention that the aircraft's left wing roll spoilers three and five were placed in the maintenance mode during maintenance perfonnedby 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 ofJason 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 ofDocuments, and Requests for Admissions, Responses to Interrogatories #

### l

### B. 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

### Inappropriateto Assllme Causation Ifthe Administrator cannot identify the causation ofthe 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 ofres ipsaloquitor, butres ipsa loquitor "does not applywhenthere is anintermediary 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 plaintiffto use res ipsa loquiturto fill the evidentiary gap, where there was only proofofthe occurrence ofan injury, without more, and holding that an injury alone "is insufficientto establish liability"). In this case, however, ILFC was having work performed on its aircraft (N265A V) under its direction, and this isjustone ofseveral possible intermediate actors that could have been the responsible causal sources ofthe switch from operational mode to maintenance mode. SeeJoseph Miller Declaration at**~'If** 

### 33-42 (explaining why it is possiblethatthe spoilers were repositioned by ILFC's agents during ILFC painting).

RESPONDENT'S MOTIONFOR SUMMARY JUDGMENT Page24 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776

### In addition, res ipsa loquitor requires proofofnegligence in orderto permit the assumption ofcausation, and there is no allegation ofnegligence on the part ofUSA 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 ofthe complaint and ofthe discovery responses do not suggest that any other USA 3000 agent couldhave done this. If a principle is accused ofthe 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 thatwas 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 ofimproper 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 byAAR 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 byUSA 300 orby any USA 3000 agent.

RESPONDENTS MOTION FOR SUMMARY JUDGMENT Page 25 Washington Aviation Group, PC andthe Law Offices ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776

### G. StatementConcerning Part 121 Claims Shortlybefore this Motion was filed, we received the Administrator's withdrawal ofthe Part 121 claims. This has mooted our (already-drafted) arguments concerning the Part 121 claims. We are mindful ofthe 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 anAppendix to this Motion. Please considerthem to be asserted ifand only ifthe Court chooses to reject the Administrator's withdrawal ofthe 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 ofUSA 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 ofthe spoiler malfunction, and (3) the pilots did not act recklessly or carelessly with respect to the flight. For purposes ofthe case against USA 3000, the pilots were the only relevant agents ofUSA 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. Butthe 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 ofJasOD A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202·628-6776RESPECTFULLY SUBMITTED this 22nd day ofOctober, 2010.
WASHINGTON AVIAnON GROUP, PC AND THE LAW OFFICES OFJASON A DICKSTEIN

By
____**-+~**

### __________________ __ Jason Dickstein hington Aviation Group, PC and the 

### w Offices ofJason A. Dickstein 2233 WisconsinAvenue, 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 ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776 Page 27BEFORE THE US DEPARTMENT OF TRANSPORTATION The Honorable Chie Administrative LawJud e RonnieA. Yoder DMS No.: FAA-2009-0032 In the matter of FAA DocketNo.: 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 FORSUMMARY JUDGMENT or DECISION and MOTION TO DISMISS 91.13(a) AMENDMENT TO COMPLAINT to be filed atthe addresses listed belowby two-day FedEx service, on the date indicatedbelow. 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 onthe persons at the addresses listed below bythe same method as the filing methbd, on the date indicated below. David M. Cohen, Attorney Federal Aviation Administration Office ofthe Regional Counsel, EAL-7 1Aviation Plaza Jamaica, NY 11434 Tel: (718) 553-3270 Fax: (718) 995-5699

CERTIFICATE OF SERVICE Page 28 The Honorable Ronnie A. Yoder ChiefAdministrative LawJudge Office ofHearings, M-20 Room E12-320 US Department ofTransportation 1200 NewJersey 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 ofJason A. Dickstein 2233 WisconsinAvenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-6776BEFORE THE U.S. DEPARTMENT OF TRANSPORTATION The Honorable Chief AdministrativeLawJudge RonnieA. 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, underpenalty ofperjury, declare as follows: I. I am an employee ofBrendan Airways, which does business underthe name USA 3000 Airlines. 2. I serve as the Director ofMaintenance for USA 3000. 3. Prior to April 2008, USA 3000 had been operating an A320 aircraft bearing US registry N265AV ("the Aircraft" or "N265AV"). 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) atthe end ofthe lease. 7. The maintenance on N265AV 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 completingthe USA 3000 work.

APPENDIX B (Declaration ofJoe Miller) Page 33 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-677610. 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 ofthe movement, because that sort ofcheck 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 ofthe Aircraft was operated out ofMiami International Airport (MIA)

- it departed and returned to MIA. 17. Walker and Surratt were both employees of Brendan Airways, which does business underthe 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. Afterthe walk-around, the pilots entered the cockpit. 21. During the maintenance acceptance flight, I was present in the cockpit.

APPENDIX B (Declaration ofJoeMiller) Page 34 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007·Tel: 202-628-677622. Duringthe maintenance acceptance flight, the pilots discovered that two sets of the spoilers were inoperative. 23. After discovering the spoilermalfunction during the flight, the pilots consulted the guidelines found in the Quick Reference Handbook (QRH) for two sets ofspoilers inoperative. 24. The QRH manual called for a normal landing at full flaps, with no speed increase, when two sets ofspoilers are inoperative. Italso 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 ofthe spoilers were in maintenance mode. 26. We communicated with AAR about this finding (spoilers found in maintenance mode). 27. AAR reported to us that AARperformed a complete review oftheir documentation to identify when the spoilers could have been placed in the maintenance mode. 28. Based on their review, AARconcluded that they could find no circumstances under which the spoilers could have been placed in the maintenance mode during an AAR maintenance operation. 29. AARinformed USA 3000 that the FAA had dropped the investigation ofAAR when it became clear that there was no evidence that anyone from AARplaced the spoilers in maintenance mode. 30. Weperformed a review ofthe maintenance operations performed byAAR on N265AV, including a review ofthe 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 ofthe spoilers made it impossible forthe spoilers to have been left in the maintenance mode before May 15, 2008.

APPENDIX B (Declaration ofJoe Miller) Page 35 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007 •Tel: 202-628-677632. Because ofthe 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 ofILFC, the aircraft owner. 3S. Workperformed 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 ofthe April 16, 2008 agreement between AAR and ILFC for the work performed on N26SAVat 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 AARto ILFC for the workperformed on N26SAV at ILFC's direction. That Invoice is attached as an exhibit to thisDeclaration. 38. Through discovery, we have obtained a copy ofthe Parts Consumption Reportby AARto ILFC for the work performed on N26SAVat ILFC's direction. That Parts Consumption Report lists parts consumed during the work performed on N26SAV at lLFC's direction, and it is attached as an exhibit to this Declaration. 39. TheParts Consumption Report makes it clear that paint was among the suppliers bought and consumed for N26SAV under lLFC's direction. 40. I believe, but I cannotprove, that the spoilers wereplaced in the maintenance mode by painters who painted the livery ofState Transport Russia on the Aircraft between May ISth and May 17th. 41. USA 3000 paid for the fuselage to bepainted, but USA 3000 was not responsible for painting the wings (and did not cause the wings to be painted).

APPENDIX B (Declaration ofJoe Miller) Page 36 Washington Aviation Group, PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW, Suite 503 Washington, DC 20007·Tel: 202-628-6776

### 42. It is normal for the leasing company to orderwork done 

### on Ihe:I.'4111ii 

### the end ofa lease. so that the aircraft can be made ready for the next lessee. 43. Painting ofthe 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 underpenalty ofperjury underthe laws ofthe United States that the foregoing is true and correct.

APPENDIX B(Declaration ofJoe Miller) Page 37 

### EXECUTED on the 22nd day ofOctober, 2010.

Joe 

### Miller US 000 DirectorofMaintenance

Washington Aviation Group. PC and the Law Offices ofJason A. Dickstein 2233 Wisconsin Avenue, NW. Suite 503 Washington. DC 20007·Tel: 202·628·677610/01/07 

# I i EXHIBIT 

# g 2150.38
"abusiness entity organized for profit, with a place ofbusiness 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 oftaxes oruse ofAmerican products, materials or labor." 13 C.F.R. § 121.105. The S8A regulations further define small business concern in tables, describing each kind ofentity by its economic activity or industry, and listing the limit for small by annual receipts or, more commonly, number ofemployees. (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 orthe SBA'swebsite at www.sba.gov. Thus, ifa person meets the definition ofbusiness concern andhas annual receipts orthe number ofemployees 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 ofemployees, 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 orregulatory term for purposes ofFAA enforcement. Itincludes 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 ofthis table, when civil penalty action is recommended and described asMinimum, Moderate, orMaximum, the penalty ranges are defined in subparagraphs (I) through (9) ofthis paragraph. Note that the middle ofeach recommended sanction range would be for a single violation without aggravating or mitigating factors.

8-2EXHIBIT 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 OperatorProfile 08/12/2008

Go To PrevPage Go To Param Page Go To Main Report



### DBA Information Operator Name DSGN DBA BRENDANAIRWAYS LLC U30A USA 3000 AIRLINES Certificate Information No Description Value Comment 1 CertificateNumber 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 UpdateDate 07/1512008 

### 11 Previous Designator 12 Previous CertificateNumber



# . . Jperation ormation 

# o Infi 

### No Description Value Comment 

### 1 Operation DFG 2 Kinds ofOperation Domestic and Flag (PAXlCargo) 3 Types ofOperation 4 Areas ofOperation Central Region Eastern Region Great Lakes Region New England Region SouthernRegion 5 Excemptions Authorized Yes 6 Deviations Authorized No 7 Reliability Program Authorized No 8 CrewmernberTraining Contracts out most orall training 9 Airworthiness Agreement Contracts out amoderate amount ofmaiotenance ProfileWithLinkColor·8/12/200811:00:47

### AM 10jHazardous Materials Carried INo K 0 P I



### e' Iperator enonne 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 OperatorPersonnel No 

# I Description Value rofileWithLinkCo1or8/12/200811:00:47 AM '. 1 PIC Captains 68 2 OtherPilots 65 

### 3 Flight Engineer 0 Examiners 4 Flight Engineers 0 5 PilotExaminers 0 

### 6 CheckAinnen 14 7 Aircrew Program 0 Designees 8 FlightAttendants 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'
. Is rmC1Pa 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 WithLinkCo1or8/12/2008 

### 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 EnvironmentalActivity 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

nVlronment nalYSlS 

### E· alA 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 EnviromentalAircrafts 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 ProfileWithLinkColor19 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 8/12/200811:00:47AM IOL31TDVI6dJTOVIOL3tTQyI

Go To PrevP. Go To Param Page 

## I Go To Main Report 

## I Analysis for FSAS/TAP ClientVersion 2.50 (07/0112008), ServerVersion 2.0 (05/0112006) Server: analysis.avs.faagov

# .~ FederalAviation**~** 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 CARRIERAND 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, ifthe 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 OFAVIATIONANALYSIS COMPETITIONAND POLICYANALYSIS DIVISION 

## Ii EXHIBIT 

# i 11 

# i1 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 -55.110101/07

# I~ 2150.38
Fig. B-I-e. Maintenance and Inspection Organization Civil Penalty Certificate Action (I) Failure to provide ormaintain 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 orAircraft 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 ofMaintenance Civil Penalty Certificate Action (I) By unauthorized person Maximum (2) Failure to perform or impropermaintenance Moderate to Maximum Fig. B-I-i. SFAR36 Civil Penalty Certificate Action (I) Failure to comply

- second offense Maximum Fig. B-1oj. Records and Reports Civil Penalty Certificate Action 

### _lJ) Deliberate violation (a) Intentionally false or fraudulent entry, Revocation reproduction, or alteration in record or report (b) Other 180-day Suspension to Revocation

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# 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 ofmajor 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 FlightRelease Rules Civil Penalty Certificate Actiou (I) Any violation ofsubpart U of 14 CFR part 121 Moderate to Maximum Fig
.. B-I-I. Operation ofunairworthy 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 ofaircraft 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 briefpassengers 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 ofcrewmember with expired medical certificate Minimum to Moderate (2) Failure to make flight deck seat available to authorized Maximum enroute inspector

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