L;.:PIOFJ^/VCPpfMilOife the UX Department of Transport^&£ ^ ¥ lUw iw?' 

Federal Aviation Administration ^ ^^.« 

MAR t 5 ?-GtO 

' i 9 HEARIMG DOCKET ) 

In the matter of ) DMS No. FAA-2009-0180 

) FAA Docket No. CP09SO0002 

PINNACLE AIRLINES, INC. ) 

) 

) 

COMPLAINANT'S OPPOSITION TO APPELLANT'S PETITION FOR LEAVE 

TO FILE AN ADDITIONAL BRIEF 

Complainant, Federal Aviation Administration (FAA), files this Opposition to 

Appellant's Petition for Leave to File an Additional Brief in the above-captioned case. 

Respondent Pinnacle Airlines (Pinnacle or Respondent), has petitioned for leave to file an 

additional brief of up to (15) fifteen pages. However, Respondent has failed to 

demonstrate good cause to file an additional briefer further argument on the issues in this 

case. 

Under the FAA's procedural rules, "[a] party may not file more than one appeal 

brief or reply brief" 14 C.F.R. §13.233(f). Leave to file an additional brief shall be 

granted only "if the party demonstrates good cause for allowing additional argument on 

the appeal." Id. (emphasis added). The issue, then, is whether Respondent has 

demonstrated good cause for allowing additional argument. See In the Matter ofStebbins, 

Inc., FAA Order No. 2005-9 at 1 (2005) (denying leave to file an additional brief). 

Respondent's motion is premised on its belief that portions of Complainant's 

argument are "unsupported or contradicted by the record" and its desire to "correct and 

clarify any misleading or unclear portions of the Complaint's" brief See Appellant's 

Petition for Leave to File an Additional Brief However, Complainant's argument is 

1 
clear and supported by the record. Pursuant to 14 C.F.R. §13.233 (d)(1), Complainant 

"specifically refer[ed] to the pertinent evidence contained in the transcript" in support of 

its argument. Complainant provided comprehensive citations to the record in support of 

all its arguments. If the record cites do not support the argument, that will be apparent 

upon review by the Decisionmaker. Additional briefing and argument is not warranted 

on the basis claimed by Petitioner. 

While the FAA Decisionmaker r has found, in very limited circumstances, that it 

was permissible for a party to file additional briefs for the very narrow, limited purpose 

of identifying factual errors in a reply brief, that is not what Respondent seeks leave to 

do. Respondent heis instead sought leave to file an additional (15) fifteen page brief 

responding to Complainant's arguments. 

Even if Pinnacle believed there were factual inaccuracies or that Complainant 

misstates a specific factual statement or testimony in the record it relies on in support of 

its arg;\iment, this would not justify affording Pinnacle another opportunity to address the 

merits of the case or counter Complainant's arguments. 

Complainant's reply brief addressed only the arguments raised by Respondent in 

its appeal.^ Both parties have briefed the issues on appeal and there is no need to permit 

additional briefs. See In the Matter of Continental Airlines, FAA Order No. 97-34 at 4-5 

' In the Matter of Sanford Air, Inc., FAA Order No. 97-22 at 1-2 (1997), the Decisionmaker was 

presented with a motion for leave to file an additional brief to address perceived factual errors in 

complainant's reply brief Respondent was strictly limited to identifying specific factual errors in detail. 

Id. at 2. The additional brief was limited to factual errors and did not allow additional briefing on the 

arguments or the merits of the appeal. 

^ In the rare circumstance the Decisionmaker has found that good cause has been shown to 

respond to argument raised in Complainant's brief, it was because Respondent demonstrated that a new 

argument was made that could not have been anticipated or briefed in its initial brief. In the Matter of 

Federal Express Corporate, FAA Order No. 2000-23 at 1-2 (2000). In that case, the Administrator allowed 

additional briefing on the very narrow question posed in a specific argument identified by Respondent. Id. 

at 2. In the present case, no novel or unanticipated arguments were made in Complainant's brief 
(1997) (order denying leave to file an additional brief). The parties have had the 

opportunity to cite to the record in support of their respective arguments and the record 

speaks for itself. The arguments in the Complainant's brief are clearly articulated and 

supported by direct citations to the record that support its argument.'' The FAA 

Decisionmaker is in a position to review the arguments and evidentiary support, cited by 

each party in the briefs provided for under the procedural rules, and determine which 

position is supported by the record. 

In sum, Respondent has failed to demonstrate "good cause for allowing additional 

argument" pursuant to 14 C.F.R. § 13.233(f). To allow further argument would 

be contrary to the Decisionmaker's prior holdings and cause undue delay and possible 

prejudice. 

WHEREFORE, Complainant respectfully requests that the FAA Decisionmaker 

deny Appellant's Petition for Leave to File an Additional Brief 

Respectfully submitted, 

Peter J. Lynch 

Assistant Chief Counsel 

Enforcement Division, AGC-300 

OcUaZ 

^auf a Ponto 

Attorney, AGC-300 

Federal Aviation Administration 

Office of the Chief Counsel 

800 Independence Avenue, S.W. 

Washington, DC 20591 

(202) 267-9863 

^ While Respondent's witnesses may have offered testimony that is contrary to the Administrative 

Law Judge's findings and the agency's evidence, that testimony is in the record and already before the 

FAA Decisionmaker. The mere existence of competing testimony does not mean that what was cited by 

Complainant is "contradicted in the record" as Respondent claims. 
Certificate of Service 

I hereby certify that on this date I have sent by Federal Express a copy of 

Complainant's Opposition to Appellant's Petition for Leave to File an Additional Brief/« 

the Matter of Pinnacle Airlines, DMS No. FAA-2009-0180, FAA Docket No. 

CP09SO0002 addressed to: 

W. Chris Harrison 

Director of Legal Affairs 

Pirmacle Airlines, Inc. 

1689 Nonconnah Boulevard 

Suite 111 

Memphis, TN 38132 

I hereby certify that on this date I have sent by Federal Express a copy of the 

foregoing document to: 

FAA Decisionmaker 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building - Suite 2W1000 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

I hereby certify that on this date I have sent by U.S. Mail the original and two 

copies of the foregoing document to: 

FAA Decisionmaker 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Wilbur Wright Building - Suite 2W1000 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430, 

Wilbur Wright Building, Suite 2W1000 

C^/tko 

ated: March 12,2010