RE 

U.S. DEPARTMENT OF TRANSPORTATION CEIVED 

FEDERAL AVIATION ADMINISTRATION. FEB 2 8 2012 

OFFICE OF HEARINGS HEARING D 

WASHINGTON, D.C. OCKET 

In the Matter of Brendan Airways, LLC 

2011EA170024 

Judge Not Assigned 

AGENCY'S REPLY TO 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) of the Rules of Practice (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 "Each pilot who 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. " This regulation is 

within Subpart S "Flight Time Operations: Supplemental Operations." 

(2) There is nothing new about this allegation, however. The Notice of Proposed Civil 

Penalty (NO PCP)( copy attached herein as Exhibit A-1), the Final Notice of Proposed 

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 in the NOPCP, does not appear in the FNPCP or the 

Complaint. That the allegation remains within the factual allegations of both 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 

assigned to any duty with the certificate holder." 

( 4) Even in its original version, the Complaint is sufficiently pleaded because 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 in the Complaint, Respondent failed to comply with 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 comply with the 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. 

With the amended pleading , that regulation is 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 

Agency requests that the Motion to Dismiss be denied in its entirety. 

Respectfully submitted, 

Alfred R. Johnson, Jr. 

Regional Counsel 

By: 

r\ \'\· , ' t , <::;; , 0 j ·-:?.\' ?. •.· 1

1 I. c'vu....Ji !JcA ;ifi~ - · ~~~~·=-+'----------­ Zachary M. 'Bemnan 

Attorney 

Federal Aviation Administration 

1 Aviation Plaza 

Jamaica, NY 11434 

718 553-3258 

718 995-5699 

3 
U.S. Department 

of Transportation 

Federal Aviation 

Administration 

SEP 3 2011 

Eastern Region 

Regional Counsel 

Telephone; 718 553-3258 

Facsimile: 718 995-5699 

CERTIFIED MAIL - RETURN RECEIPT REQUESTED 

President 

Brendan Airways, LLC 

335 Bishop Hollow Road 

Suite 100 

Newton Square, PA 19073 

Docket No. 20 11EA170024 

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 of the following: 1 

I. Brendan Airways, LLC (hereinafter "Brendan Airways"\ is the 

holder of Air 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 

pertaining to 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 of it pilots, Randal Kulp (as pilotin-command) and William Pearce (as second-in-command) 

(hereinafter "the two pilots"), fly an Airbus A320214 aircraft, 

identification number N263A V (hereinafter "the aircraft") on four 

supplemental Part 121 flights, which in total exceeded eight hours. 
. ' 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 MUGM to 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 on three supplemental Part 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, P A. 

8. The two pilots had fewer than 16 hours of rest between the flights 

referenced in Paragraph (4), above, and the flights referenced in 

Paragraph (6), above. 

9. Brendan Airways thus 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 assigned to any duty with the 

certificate holder. 

By reason of the foregoing, Brendan Airways, LLC violated the following 

section(s) of the Federal Aviation 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 of any deviation or exemption authority, if issued to that person 

or that person's representative. 

b. Section 121.503(b), which states that each pilot who 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 in the amount of$37,000 for these violations. 

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 of the alternatives explained on 

the enclosed information form on or before thirty (30) days after it receives this 

Notice. If Brendan Airways, LLC fails to submit its choice within that time, it will 

have no further right to participate in the informal procedures. 

Alfred R. Johnson, Jr. 

Regional Counsel 

By: Pl?afa 

Zachary M. Berman 

Attorney 

Enclosures 

Information Sheet 

Reply Form 

Subpart G of 14 C.F.R. 13 

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

3 
INFORMATIO' .. 'EGARDING CIVIL PENAL TIES UNDER TILE 49 U.~· ~ ~ECTION 46301 

Under 49 U.S.C. § 46301, any person who violates pet_ lt provisions of 49 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 of the proposed civil penalty for the alleged violation(s). 

This proceeding is governed by the Federal Aviation Regulations (FAR) set forth in 14 C.F.R. § 13.16 and 14 C.F.R. Part 13, Subpart G. Copies of these regulations are enclosed. 

WITHIN THIRTY (30) DAYS AFTER BRENDAN AIRWAYS, LLCRECEIVES THE NOTICE TO W!ITCH THIS INFORMATION SHEET IS ATTJCHED, Brendan Airways, 

LLC may elect to proceed in one or more of the following ways by 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 of each option is set forth below. 

1. Brendan Airways, LLC may submit the amount of the civil penalty specified in the notice by certified check or money order payable to the "Federal Aviation Administration" 

to the Office of Accounting F AAIMMAC ~ Attention AMZ-31 O~EA, Post Office Box 25770, Oklahoma City, 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 of the 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 of these two sections, and submit to complete your payment. 

SUBMITTING THE AMOUNT OF CIVIL PENALTY IN ACCORDANCE WITH PARAGRAPHS I AND 2 CONSTITUTES Brendan Airways, LLC'S AGREEMENT THAT 

AN ORDER ASSESSING CIVIL PENALTY IN THAT AMOUNT MAY BE ISSUED WITHOUT FURTHER NOTICE. SUBMITTING THE AMOUNT OF CIVIL PENALTY 

ALSO CONSTITUTES Brendan Airways, LLC S AGREEMENT THAT IT WAIVES ITS RIGHT TO A HEARING IN TillS MATTER. 

3. Brendan Airways, LLCmay submit, in writing, information and evidence demonstrating that a violation of the regulations was not committed or that, if it were, the facts and 

circumstances do not warrant the proposed civil penalty. Information pnvided will be considered in determining whether a civil penalty should be assessed or imposed and the 

amount of any such civil penalty. This information may be submitted in conjunction with a request for an informal conference under paragraph 6 Choosing this option will not 

affect Brendan Airways, LLCs right to 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 pay the proposed civil penalty, or showing that payment of 

the proposed penalty would prevent Brendan Airways, LLC from continuing in business. Choosing this option will not affect Brendan Airways, LLC's right to a hearing, unless 

it also elects paragraph 5. 

5. Brendan Airways, LLC may request that a civil penalty be assessed in a specific amount other than that proposed in the notice. If Brendan 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. If the 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 FAA DOES NOT ACCEPT BRENDAN AIRWAYS, LLC'S OFFER, HOWEVER, ITS RIGHT 

TO A HEARING WILL NOT BE AFFECTED. 

6, Brendan Airways, LLC may request an opportunity to discuss the matter with an FAA attorney by 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. If you request an informal conference 

with an FAA attorney, do not also request at this time a formal hearing under 14 C.P.R. § 13.16, i.e., option 8. Brendan Airways, LLCs request for 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 FAA to 

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 of the 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 of violations, and submit the reasons and any additional infonnation in 

writing (with appropriate supporting documentation) to support Brendan Airways, LLC's request. If the FAA accepts Brendan Airways, 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 WILL ALSO CONSTITUTE ITS 

AGREEMENT THAT IT WAIVES ITS RIGHT TO A HEARING. IF THE FAA DOES NOT ACCEPT BRENDAN AIRWAYS, LLC'S OFFER, HOWEVER, ITS RIGHT 

TO A HEARING WILL NOT BE AFFECTED. 

8. Brendan Airways, LLC may request a hearing in accordance with section 13.16 of the 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 law judge 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 of proof. At the conclusion of the hearing, all issues of fact and law will be decided and a decision will be rendered whether, and in what amount, a civil 

penalty will be assessed. If either party, the agency or Brendan Airways, LLC is dissatisfied with the judge's decision, that party can appeal the judge's decision to the FAA 

decisionmaker. If Brendan Airways, LLC is dissatisfied with the FAA decisionmaker's decision, Brendan Airways, LLC may seek review of the FAAdecisionmaker's decision 

in the United States Courts of Appeals. 

Brendan Airways, LLCs request for a hearing must be made to the Hearing Docket, Federal Aviation Administration, 800 Independence Avenue, SW., Room 924A, Washington 

DC, 20591, Attention: Hearing Docket Clerk. Brendan Airways, LLCmust mail 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 oftheRegional Counsel Federal Aviation Administration 1 Aviation Plaza Jamaica, NY 11434 Brendan Airways, 

LLC's response to the Notice of Proposed Civil Penalty may be delivered personally to the Office ofthdtegional Counsel for the Eastern Region at the above address during 

normal business hours. Telephone: 718 553-3258 (Collect calls cannot be accepted.) 
. Orfice of the Regional Counsel 

Federal Aviation AdminiStration 

l Aviation Plaza 

Jamaica, NY 11434 

~ate 

Brendan Airways, LLC ~ 2011EA170024 

Subject: Notice of Proposed Civil Penalty 

In reply to your 1-btice of Proposed Civil Penalty, Brendan Airways, LLC elects to proceed as indicated by mv check mark beside 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 amount of 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 of the records showing that it amount of$ and it 

assessing a civil penalty will be Internet at the following regulations did not occur as is financially unable to submits the reasons for the 

issued in that amount without website: alleged or that the amount of pay the proposed civil reduction of the proposed amount. 

further notice. Brendan http:www.pay.gov the penalty is not warranted penalty, or that payment This request constitutes Brendan 

Airways, LLC by the circumstances. of the penalty would Airways, LLCs agreement that if 

UNDERSTANDS THAT IT Brendan Airways, LLC prevent it from this offer is accepted by the 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 without further notice. 

the amount without further THIS REQUEST ALSO 

notice. CONSTIT!ITES Brendan 

Airways, LLCS AGREEMENT 

Brendan Airways, LLC THAT IT HAS WAIVED ITS 

ALSO UNDERSTANDS RIGHT TO A HEARING. 

THAT IT W AlVES ITS 

RIGHT TO A HEARING. 

6.a. [ ] Brendan Airways, LLC hereby requests a telephonic 7. [ ] Brendan Airways, 8. [ ] Brendan Airways, LLC hereby requests a hearing in 

infonnal conference to discuss this matter with an FAA LLC hereby requests that accordance with Subpart G of Part 13 of the Federal Aviation 

attorney. (An attorney will callBrendan Airways, LLC at the the FAA impose a civil Regulations (14 CFR 13, Subpart G) with the understanding 

telephone number it provides here: ( ) . Brendan penalty without making that a Complaint will be filed. Brendan Airways, LLC 

Airways, LLC will be provided at least 2 weeks advance findings of violations, and requests that the hearing be held in 

notice of the date and time of this conference.) NOTE: If submits its reasons. This . Brendan Airways, LLC is 

Brendan Airways, LLC chooses to discuss this matter request constitutes Brendan sending this request both to the FAA attorney and to the 

infonnally by telephone, it should provide any documents or Airways, LLCs agreement Hearing Docket, Federal Aviation Administration, 800 

other information it wishes to have considered on its behalf that if this offer is accepted, Independence Avenu:, SW., Room 924A, Washington, DC, 

before the date of the informal conference. a compromise order will be 20591, Attention: Hearing Docket Clerk. 

b. [ ] Brendan Airways, LLC hereby requests an in-person issued in the amount set 

infonnal conference with an FAA attorney. forth in the Notice 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: [ ] Brendan Airways, LLC requests that future documents in this case be sent to its 

representative: 

Name: 

Address: Name: 

Address: 

Telephone: 

Date: Telephone: 

Case No.: 201IEAI70024 

w: 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing Agency's Response to Motion to Dismiss has been placed 

this date in the United States mail, postage prepaid, by Certified Mail - Return Receipt 

Requested addressed as follows: 

Jason Dickstein, Esq. 

Washington Aviation 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 Docket Clerk, AGC-430 

Wilbur Wright Building - Room 2014 

:, '-"" 2 ~ Date: ______ _ ~~ PoA-RA-{J_-

Marianna Perero 

Paralegal Specialist 

Federal Aviation Administration 

Office of Regional Counsel 

1 Aviation Plaza 

Jamaica, NY 11434 

4