# RE U.S. DEPARTMENT OF TRANSPORTATION 

# CEIVED

FEDERAL AVIATION ADMINISTRATION. 

# FEB 282012 OFFICE OF HEARINGS 

# HEARING D

WASHINGTON, D.C. 

# OCKET

In

# the Matter ofBrendanAirways, LLC 2011EA170024 Judge NotAssigned

AGENCY'S REPLYTO MOTION TO DISMISS The Federal Aviation Administration (FAA), by counsel, hereby files its reply to Respondent's Motion to Dismiss, which is based on allegedly insufficient pleadings, as follows: (1) The Agency is, concurrently with this response, submitting, per its authority under Rule 13.214(b)(1) ofthe Rules ofPractice (14 CFR Section 13.208), an Amended Complaint, which cites a regulation- 14 CFR Section 121.503(b)- that was not in the original Complaint. That regulation states that "Eachpilot who has flown more than eighthours during any 24 consecutive hours must be given at least 16 hours of
restbeforebeing assignedto any dutywiththe certificate holder. " This regulationis within Subpart S "FlightTime Operations: Supplemental Operations." (2) There is nothing new about this allegation, however. The Notice ofProposed Civil Penalty (NOPCP)( copy attachedherein as ExhibitA-1), the FinalNotice ofProposed Civil Penalty (FNPCP), and the Complaint all 

# alleged that "Brendan Airways

...failed to ensure that each pilot who has flown more than eight hours

1

# during any 24 consecutive hours be given at least 16 hours of rest before being assigned to any duty with the certificate holder." The corresponding regulation, 14 CFR 121.503, while appearing inthe NOPCP, does not appear in the FNPCP or the Complaint. That the allegation remains within the factual allegations ofboth the FNPCP and Complaint, however, indicate that the omission of this regulatory citation was due to an administrative oversight, and not due to any change in the Agency's theory of the case. Through the amended pleading, this oversight is corrected. (3) The Complaint alleges that Respondent, under its operations specifications, was required to conduct its supplemental operations in accordance with the Federal Aviation Regulations (F

# ARs) pertaining to supplemental operations [which includes FAR 121.503(b)] The Complainant alleges that during one 12-13 hour period, Respondent had two of its pilots fly an aircraft in supplemental operations that in total exceeded eight hours, and then 10 hours later used these same pilots in additional supplemental operations. Thus, as alleged in the Complaint, "Brendan Airways

... failed to ensure that each pilot who has flown more than eight hours during any 24 consecutive hours be given at least 16 hours of rest before being assignedto any dutywiththe certificateholder." ( 4) Even in its original version, the Complaintis sufficientlypleadedbecause it alleges a violation of FAR 119.5 (g), which prohibits operation in violation of operations specifications. As effectively alleged in the Complaint, the operations specifications required compliance with FAR 121.503(b) when conducting operations

2

# specifications. As alleged inthe Complaint, Respondent failed to complywith FAR 121.503(b) because the pilots failed to have adequate rest when conducting operations specifications. And since Respondent failed to comply with that FAR, it failed to complywiththe operations specification. (5) Even in its original form, the Complaint set forth facts sufficient to support an allegation of FAR 121.503(b), although that regulation was not specifically cited. Withthe amendedpleading , thatregulationis specifically cited. The Agency submits that the pleadings in the Complaint, even in its original form but particularly as amended, are more than sufficient to support the allegations.The Agencyrequests thatthe Motionto Dismiss be deniedinits entirety.

Respectfully submitted, Alfred R. 

# Johnson, Jr. Regional Counsel

By: r\ \'\· , ' t , <::;; , 0 

### j 

## ·-:?.\' ?. •.· 1 1 I. 

# c'vu....Ji !JcA

### ;ifi~ 

## - ·**~~~~·=-+'----------­** 

# ZacharyM. 'Bemnan Attorney Federal AviationAdministration 1AviationPlaza Jamaica, NY 11434 718 553-3258 718 995-5699

3

### U.S. Department ofTransportation 

### Federal Aviation Administration 

# SEP 3 2011 Eastern Region Regional Counsel Telephone; 718 553-3258 Facsimile: 718 995-5699



# CERTIFIED MAIL

- RETURNRECEIPT REQUESTED President BrendanAirways, LLC 335 Bishop Hollow Road Suite 100 Newton Square, PA 19073

DocketNo. 2011EA170024 1 Aviation Plaza Jamaica, NY 11434



# NOTICE OF PROPOSED CIVIL PENALTY TAKE NOTICE, that this office has received an investigative report from which it appears that Brendan Airways, LLC violated the Federal Aviation Regulation(s) by reason ofthe following: 1 

# I. 

# Brendan Airways, LLC (hereinafter "Brendan Airways"\ is the holder ofAir Carrier Certificate No. U30A762J. 2. At all times relevant herein, Brendan Airways was authorized under its operations specifications to conduct non-scheduled (supplemental operations). 3. At all times relevant herein, under its operations specifications, Brendan Airways was required to conduct its supplemental operations in accordance with the Federal Aviation Regulations pertainingto supplemental operations. 4. On or about November 30, 2010, starting at approximately 12:00 noon and concluding at approximately 12:40 a.m. on December 1, 2010, Brendan Airways had two ofit pilots, Randal Kulp (as pilotin-command) and William Pearce (as second-in-command) (hereinafter "the two pilots"), fly an Airbus A320214 aircraft, identification number N263AV (hereinafter "the aircraft") on four supplemental Part 121 flights, which in total exceeded eighthours.

# . ' 

# 5. The fbur 

# flights referenced in Paragrapl'r (4), above, were, in chronological order, from Norfolk Naval Air Station (KGNU) to Jacksonville Naval Air Station (KNIP); from KNIP to Guantanamo Naval Air Station (MUGM); from MUGMto KNIP; and from KNIP toKGNU. 6. On or about December 1, 2010, starting at approximately 11:05 am and concluding at approximately 5:25 p.m., Brendan Airways had the two pilots fly the aircraft onthree supplementalPart 121 flights. 7. The four flights referenced in Paragraph (6), above, were, in chronological order, from NGU to Port Columbus International Airport, Columbus, Ohio (CMH); from CMH to Raleigh-Durham International Airport (RDU); and from RDU to Philadelphia International Airport, PA. 8. The two pilots had fewer than 16 hours ofrest between the flights referenced in Paragraph (4), above, and the flights referenced in Paragraph (6), above. 9. Brendan Airways thus failed to ensure that eachpilot who has flown more than eight hours during any 24 consecutive hours be given at least 16 hours of rest before being assigned to any duty with the certificate holder. By reason of the foregoing, Brendan Airways, LLC violated the following section(s) ofthe FederalAviation Regulations:

a. Section 119.5(g), which states that no person may operate as a direct air carrier or as a commercial operator without, or in violation of, an appropriate certificate and appropriate operations specifications. No person may operate as a direct air carrier or as a commercial operator in violation ofany deviation or exemption authority, ifissued to that person orthatperson'srepresentative. b. Section 121.503(b), which states that each pilotwho has flown more than eight hours during any 24 consecutive hours must be given at least 16 hours of rest before being assigned to any duty with the certificate holder. Brendan Airways, LLC Corporation is liable for a civil penalty not to exceed $25,000 for each violation of the regulation(s) in accordance with 49 U.S.C. §46301(a)(l), or, for small business concerns, $11,000 for each violation in accordance with 49 U.S.C. §46301(a)(5). After reviewing our investigative file, we propose to assess a civil penalty inthe amount of$37,000 for theseviolations.

2

# Enclosed is informatw11 on Brendan Airways, LLC's optid,d in responding to this Notice. The options include participating in an informal conference with an FAA attorney and submitting information to the FAA for consideration. Brendan Airways, LLC must submit, in writing, its choice ofthe alternatives explained on the enclosed information form on or before thirty (30) days after it receives this Notice. IfBrendanAirways, LLC fails to submitits choice withinthat time, it will have no further rightto participate inthe informalprocedures. AlfredR. Johnson, Jr. Regional Counsel

By: 

# Pl?afa ZacharyM. Berman Attorney Enclosures Information Sheet Reply Form Subpart G 

# of 14 

# C.F.R. 13



# cc:**~-230A/230B/~FSDO**



### 3INFORMATIO'

.. 'EGARDING CIVIL PENALTIES UNDER TILE 49**U.~· ~** **~ECTION** 46301 Under 49 U.S.C. § 46301, any person who violates 

### pet_ lt provisions of49 U.S.C. §§ 40101,**~~-,or** any**rul~>** 

### JUiation, or order issued thereunder, is subject to a civil penalty for each violation. The maximum assessment for each violation is also prescribed 

### by law, as specified in the-·notice to which this is attached. The notice also states the amount ofthe proposed civil penalty for the alleged violation(s). This proceeding is governedby the Federal AviationRegulations (FAR) setforth in 14C.F.R. § 13.16 and 14 C.F.R. Part 13, Subpart G. Copies ofthese regulations are enclosed. WITHINTHIRTY (30) DAYS AFTERBRENDAN AIRWAYS, LLCRECEIVES THENOTICETO W!ITCH THIS INFORMATION SHEET IS ATTJCHED, Brendan Airways, LLC may electto proceed in one or more ofthe followingwaysby marking the appropriate box(es) on the attached election sheet and returning it by mail or**personal~delivery** to the address provided below. An explanation ofeach option is setforth below. 1. Brendan Airways, LLCmay submitthe amount ofthe civil penalty specified in the notice by certified check ormoney order payable to the "Federal Aviation Administration" to the Office of Accounting FAAIMMAC**~** AttentionAMZ-31**O~EA,** Post Office Box 25770, OklahomaCity, OK 73125. 2. In the alternative, Brendan Airways, LLC may pay its civil penalty with a credit card over the Internet. To pay electronically, visit the web site at http://www.pay.gov and enter the term 'FEA" in the search bar labeled "Search Public Forms" located on the left hand side ofthe screen. After following the link, click on "FAA Civil**Penalties~FAA** Eastern Region." Brendan Airways, LLC must then enter the above-listed "Docket Number" under the "Civil Penalties Case Number" and Brendan Airways, LLC must then complete the remainder of the requested information. Once Brendan Airways, LLC has submitted the requested information Brendan Airways, LLC will be taken to a page which allows Brendan Airways, LLC to either pay by electronic transfer, or by credit card. Fill in the requested information in one ofthese two sections, and submitto completeyour payment. SUBMITTINGTHE AMOUNT OF CIVIL PENALTY IN ACCORDANCE WITH PARAGRAPHS I AND 2 CONSTITUTES Brendan Airways, LLC'S AGREEMENT THAT AN ORDER ASSESSING CIVILPENALTY IN THAT AMOUNT MAY BE ISSUED WITHOUTFURTHERNOTICE. SUBMITTINGTHE AMOUNT OF CIVIL PENALTY ALSO CONSTITUTESBrendan Airways, LLCS AGREEMENT THAT IT WAIVES ITS RIGHT TOA HEARING IN TillS MATTER. 3. BrendanAirways, LLCmay submit, in writing, information and evidence demonstratingthat a violation ofthe regulations was not committed orthat, ifit were, the facts and circumstances do notwarrant the proposed civil penalty. Information pnvided

### will be considered in determining whether a civil penalty should be assessed or imposed and the amount ofany such civil penalty. This information maybe submitted in conjunction with a request for an informal conference under paragraph 6 Choosing this option will not affect Brendan Airways, LLCs rightto a hearing, unless it also elects paragraph 5. 4. Brendan Airways, LLC may submit, in writing, information and records indicating that it is financially unable to paythe proposed civil penalty, or showing that payment of the proposedpenalty wouldpreventBrendanAirways, LLC from continuing in business. Choosing this option will not affect BrendanAirways, LLC's right to a hearing, unless it also elects paragraph 5. 5. Brendan Airways, LLCmay request that a civil penalty be assessed in a specific amount otherthanthatproposed in the notice. IfBrendan Airways, LLC chooses this option, it should explain why a reduction in the civil penalty is appropriate, and provide any supporting documentation. The information Brendan Airways, LLC provides will be considered in determining whether the amount it specified should be assessed. Ifthe FAA accepts Brendan Airways, LLC's offer, this request constitutes Brendan Airways, LLC's agreement that an order assessing civil penalty in that amount may be issued without further notice. BRENDAN AIRWAYS, LLC'S REQUEST ALSO CONSTITUTES ITS AGREEMENT THAT IT WAIVES ITS RIGHT TO A HEARING. IF THE FAADOES NOT ACCEPT BRENDAN AIRWAYS,LLC'S OFFER, HOWEVER, ITS RIGHT TO A HEARING WILL NOT BE AFFECTED. 6, BrendanAirways, LLC may request an opportunity to discuss the matterwith an FAA attorneyby a telephonic informal conference,or at an llrperson informal conference. To elect a telephone informal conference, choose option 6.a. on the reply fonn. To elect an**in~person** informal conference, choose option 6.b. Ifyou request an informal conference with an FAA attorney, do not also request atthis time a formal hearing under 14C.P.R. § 13.16, i.e., option 8. BrendanAirways, LLCs requestfor an informal conference will not affect its right to request a fonna1 hearing later. IMPORTANT: The infonnal conference is intended to provide Brendan Airways, LLC with an opportunity to present its reasons why the FAA should not proceed with the action as proposed. It also is intended to provide Brendan Airways, LLC with an opportunity to present any supporting documentation or information its wishes the FAAto consider before the agency decides whether to proceed with the proposed action. Any additional information Brendan Airways, LLC submits will be given our careful consideration. Since the attached letter may become a part ofthe publicly available records, Brendan Airways, LLC may wish to submit a letter which would be included in these records. 7. Brendan Airways, LLC may request that the FAA impose a civil penalty without making findings ofviolations, and submit the reasons and any additional infonnation in writing (with appropriate supporting documentation) to support BrendanAirways, LLC's request. Ifthe FAA accepts BrendanAirways, LLCs offer, this request will constitute Brendan Airways, LLC's agreement that a Compromise Order in that amount may be issued. BRENDAN AIRWAYS, LLC'S REQUEST WILLALSO CONSTITUTE ITS AGREEMENT THAT IT WAIVES ITS RIGHT TO A HEARING. IF THE FAADOES NOT ACCEPT BRENDAN AIRWAYS, LLC'S OFFER, HOWEVER, ITS RIGHT TO A HEARING WILLNOTBE AFFECTED. 8. Brendan Airways, LLC may request a hearing in accordance with section 13.16 ofthe FAR. Brendan Airways, LLC's request must be dated and signed. If Brendan Airways, LLC requests a hearing, a Complaint will be filed and an administrative lawjudge will be appointed to decide the case. At the hearing, held under Subpart G of 14 C.F.R. Part 13, the agency will present witnesses and other evidence. Brendan Airways, LLC also will have the opportunity to present witnesses and other evidence. The FAA 

### will have the burden ofproof. At the conclusion ofthe hearing, all issues offact and law will be decided and a decision will be rendered whether, and in what amount, a civil penalty will be assessed. Ifeither party, the agency or Brendan Airways, LLC is dissatisfied with thejudge's decision, that party can appeal thejudge's decision to the FAA decisionmaker. If BrendanAirways, LLC is dissatisfied with the FAAdecisionmaker's decision, Brendan Airways, LLC may seek review ofthe FAAdecisionmaker's decision in the United States Courts ofAppeals. Brendan Airways, LLCs request for a hearing mustbe made to the Hearing Docket, Federal AviationAdministration, 800 Independence Avenue, SW., Room 924A, Washington DC, 20591,Attention: Hearing DocketClerk. BrendanAirways, LLCmustmail a copy to the FAA attorney handling this case at the address indicated below. All correspondence in this matter should be forwarded to the Office oftheRegionalCounsel Federal Aviation Administration 1AviationPlaza Jamaica, NY 11434 Brendan Airways, LLC's response to the Notice ofProposed Civil Penalty may be delivered personallyto the Office ofthdtegional Counsel for the Eastern Region atthe above address during normal business hours.Telephone: 718 553-3258 (Collectcalls cannotbe accepted.)

# . Orfice ofthe Regional Counsel Federal Aviation AdminiStration l Aviation Plaza Jamaica,NY 11434**~ate**

Brendan Airways, LLC**~** 2011EA170024 Subject: Notice ofProposed CivilPenalty In reply to your 1-btice ofProposed Civil Penalty, BrendanAirways, LLC elects to proceed as indicatedby mv checkmarkbeside the numbered paragraoh(s) bela l. [ ] Brendan Airways, LLC 2. [ ] Brendan Airways, 3. [ ] Brendan Airways, LLC 4. [ ] Brendan 

### 5. [ ] Brendan Airways, LLC hereby submits the amountof LLC has paid the hereby submits evidence and Airways, LLC hereby hereby requests that the proposed the proposed civil penalty with proposed civil penalty with information, demonstrating submits information and civil penalty be assessed in the the understanding that an order a credit card over the that a violation ofthe records showingthatit amount of$ and it assessing a civil penalty 

### will be Internet atthe following regulations did not occur as is financially unable to submits the reasons for the issued in that amountwithout website: alleged orthat the amountof paythe proposed civil reduction ofthe proposed amount. further notice. Brendan http:www.pay.gov the penalty is notwarranted penalty, orthat payment This requestconstitutes Brendan Airways, LLC bythe circumstances. ofthe penalty would Airways, LLCs agreement that if UNDERSTANDS THAT IT BrendanAirways, LLC prevent it from this offer is accepted bythe FAA, HAS WAIVED ITS RIGHT also understands that an continuing in business. an order assessing civil penalty in TO A HEARING. order assessing civil the amount it has specified may penalty will be issued in be issued withoutfurther notice. the amountwithoutfurther THIS REQUEST ALSO notice. CONSTIT!ITES Brendan Airways, LLCS AGREEMENT Brendan Airways, LLC THAT IT HAS WAIVED ITS ALSO UNDERSTANDS RIGHT TO AHEARING. THAT IT W AlVES ITS RIGHT TO A HEARING. 6.a. [ ] BrendanAirways, LLC hereby requests a telephonic 7. [ ] BrendanAirways, 8. [ ] BrendanAirways, LLC hereby requests a hearing in infonnal conference to discuss this matterwith an FAA LLChereby requests that accordance with Subpart G ofPart 13 ofthe Federal Aviation attorney. (An attorney will callBrendanAirways, LLC at the the FAA impose a civil Regulations (14 CFR 13, SubpartG) withthe understanding telephone number it provides here: ( )

. Brendan penalty without making that a Complaint will be filed. BrendanAirways, LLC Airways, LLC will be provided at least 2 weeks advance findings ofviolations, and requests thatthe hearingbe heldin notice ofthe date and time ofthis conference.) NOTE: If submits its reasons. This

. BrendanAirways, LLC is Brendan Airways, LLCchooses to discuss this matter request constitutesBrendan sendingthisrequestbothto the FAA attorney and to the infonnally bytelephone, it should provide any documents or Airways, LLCs agreement Hearing Docket, Federal AviationAdministration, 800 other information it wishes to have considered on its behalf thatifthis offer is accepted, IndependenceAvenu:, SW., Room 924A, Washington, DC, before the date ofthe informal conference. a compromise orderwill be 20591, Attention: Hearing DocketClerk. b. [ ] Brendan Airways, LLC hereby requests an in-person issued in the amount set infonnal conference with an FAA attorney. forth intheNotice of Proposed Civil Penalty. THIS REQUEST ALSO CONSTITUTES BRENDAN AIRWAYS, LLC'S AGREEMENT THAT IF 1HIS OFFER IS ACCEPTED, IT HAS WAIVED ITS RIGHT TOA HEARING. Signature: [ ] BrendanAirways, LLC requests that future documents inthis case be sentto its representative: Name: Address: Name: Address: Telephone: Date: Telephone: CaseNo.: 201IEAI70024 w:

# CERTIFICATE OF SERVICE Ihereby certify thatthe foregoing Agency's Response to Motionto Dismiss hasbeenplaced this date in the United States mail, postage prepaid, by Certified Mail

- Return Receipt Requested addressed as follows: JasonDickstein, Esq. WashingtonAviation Group 2233 Wisconsin Avenue, NW, #503 Washington, DC 20007 Federal Aviation Administration (Original and one copy) 800 Independence Avenue, S.W. Washington, D.C. 20591 Attn: Hearing DocketClerk, AGC-430 WilburWrightBuilding

- Room2014



# :, '-"" 2**~** 

# Date:

______ _

# ~~ PoA-RA-{J_- MariannaPerero Paralegal Specialist Federal AviationAdministration Office ofRegional Counsel 1AviationPlaza Jamaica, NY 11434

4