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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

'•^iCFH;'.;;:fGeWiON 

• " i ;; 1 

Federal Aviation Administration 

Complainant 

Vs 

AirTran Airways, Inc. 

Respondent 

FAA Docket No. CP10SO0002 

Judge Isaac D. Benkin 

^oio-m 

RESPONDENT'S OPPOSITION TO COMPLAINANT'S MOTION 

FOR DECISION ON THE PLEADINGS 

AND 

RESPONDENTS CONCURRENCE TO COMPLAINANT'S 

ALTERNATIVE MOTION FOR HEARING ON SANCTION ONLY 

AirTran Ainways, Inc (Respondent) hereby files its opposition to Complainant's motion 

for decision on the pleadings and in support thereof states the following; 

Complainant's Certificate of Service that accompanied its motion states that 

Respondent's counsel was served by electronic mail, facsimile and Federal Express. 

Respondent's counsel did not receive a copy of Complainant's electronic email and 

notes that his email address is not shown on Complainant's Certificate of Service. 

A FEDEX Priority Overnight envelope containing Complainant's motion was delivered to 

Respondent on Monday, May 3, 2010. That was the same day that Respondent 

received Complainant's facsimile and notes that it was faxed to Respondent near the 
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close of business on Friday, April 30, 2010 when Respondent counsel was not in the 

office. 

§13.218 (f) (5) of the Rules of Practice provides that either party may make a miotion for 

decision. That Rule provides that such a motion may be granted "...if the pleadings, 

depositions, answer to interrogatories...show there is no genuine issue of material fact 

and that the party making the motion is entitled to a decision as a matter of law." The 

Rule further provides that the party making the motion has the burden of showing there 

is no genuine issue of material fact disputed by the parties. Respondent submits: (1) 

there exists genuine issues of material fact disputed by the parties; and (2) Complainant 

has failed to meet its burden of showing there is no issue of material fact disputed by 

the parties. 

In its April 15, 2010 answer to Complainant's complaint, Respondent submitted an 

affirmative defense by pleading "The proposed civil penalty Is excessive and 

unwarranted". Complainant's motion suggests that, as a matter of law, its proposed 

sanction is mandated, because it falls within the range of a Table of Sanctions v/hich it 

itself publishes and amends from time to time outside of the formal rulemaking process. 

Respondent submits that Complainant's motion fails to address §13.11 of its Rules of 

Practice. That Rule permits administration disposition of certain violations and provides 

that "a violation or an alleged violation" may be disposed of by administrative action in 

the form of either of "Warning Notice" or a "Letter of Correction". Respondent believes 

that the factors traditionally relied upon by Complainant to arrive at an appropriate 

sanction in matters similar to the one before this Court call for the imposition of a Letter 

of Correction or a civil penalty much less than the $15,000 sought. 

In order to confirm and support its belief, Respondent has initiated discovery and 

submitted written interrogatories, requests for admissions, and requests for the 

production of documents to Complainant (Attachment A). Complainant has not yet 

complied with Respondent's first discovery requests or objected to them. 
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Respondent believes that the responses it receives to its written interrogatories, 

requests for admission, and requests for the production of documents will show and 

confirm issues of material fact in the choice of sanction sought by Complainant and 

notes that the standard for the granting of a motion for decision includes a finding by the 

Administrative Law Judge that the "pleadings, answers to interrogatories, admissions, 

matters that the Administrative Law Judge officially noticed,., show that there is no 

genuine issue of material fact...." (Rules of Practice §13.218 (f) (5)). 

In summary, Respondent's motion for decision should be denied. Discovery should be 

allowed to continue. After discovery is completed, Complainant can renew its motion, if 

it so chooses. 

Respondent does not object to the granting of Complainant's alternative motion for 

hearing on sanction only. In its answer and in its motion to dismiss Complainant's 

complaint, Responded has admitted that a single violation of a single Federal Aviation 

Regulation (FAR Part 121.467 (b) (13)) occurred. However, Respondent disputes the 

sanction sought by Complainant. Since it is only the sanction which is disputed by the 

parties, Respondent concurs that a hearing on the sanction only is appropriate. 
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Respectfully submitted this 12'" day of May, 2010 

Stephen J. Kolski 

Florida Bar Number 01034082 

Executive Vice President Corporate Affairs 

AirTran Airways, Inc. 

9955 AirTran Blvd. 

Oriando, FL 32827 

Phone:(407)318-5108 

FAX: (407) 318-5109 

Email: Steve.Kolski(S^irTran.com 
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FAA Docket No. CP10SO0002 

(Civil Penalty Action) 

CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing Respondent's opposition to Complainant's 

motion for decision on the pleadings and Respondents concurrence to Complainant's 

alternative motion for hearing on sanction only was mailed and faxed on this 12'^ day of 

May, 2010 as follows: 

ORIGINAL & ONE COPY (VIA U.S. MAIL) TO: 

Federal Aviation Administration 

800 Independence Ave, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

ONE COPY (VIA FAX AND U.S. MAIL) TO: 

Rashawn Rich George, Complainant's Counsel 

Office of the Regional Counsel, ASO-7 

Southern Region 

Federal Aviation Administration 

P.O. box 20638 

Atlanta, GA 30320 

TEL: 494-305=5200 

FAX 404-305-5223 

ONE COPY (VIA FAX AND U.S. MAIL) TO: 

The Honorable Isaac D. Benkin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room E12-320 

Washington, DC. 20590 

TEL: Attorney 202-366-2139 

Legal Assistant 202-366-2132 

FAX: 202-366-7536 
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U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

In the Matter of 

AirTran Airways, Inc. 

Respondent 

Docket No. CP1 $00002 

Honorable Isaac D. Benkin 

Administrative Law Judge 

RESPONDENT'S FIRST DISCOVERY REQUEST TO COMPLAINANT 

1. Respondent AirTran Airways, Inc. files this First Discovery Request to 

Complainant Federal Aviation Administration pursuant to 14 C.F.R., Chapter I, 

Part 13, Subpart: G: "Rules of Practice in FAA Civil Penalty Actions" (hereinafter 

"Rules of Practice"). Respondent requests that any objections to any of the 

following discovery requests be stated in writing and include the reason(s) for the 

objection. 

2. Respondent serves the attached interrogatories pursuant to §13.220(k) of the 

Rules of Practice. Respondent requires that a response, including filing 

objections to a request for interrogatories, be served not later than 30 days 

following service of this request and that the answers to each and every 

interrogatory be stated separately and completely in writing. 

3. Respondent serves the attached requests for production pursuant to §13.220(b) 

of the Rules of Practice. Respondent requires that Complainant, within 30 days 

of the sen/ice of this request, either produce legible copies of such documents 

and tangible items or produces the originals for copying and inspection at the 

offices of the undersigned counsel at such time. 
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4. Respondent serves the attached requests for admission pursuant to §13.220(b) 

of the Rules of Practice. Respondent requires that Complainant serve an 

admission, specific denial, or permitted objection to each request not later than 

30 days following service of this instrument to the undersigned attorney. 

5. This is a continuing request for Complainant to provide all updated or new 

records or information, as itemized in this document, through the date of the 

hearing. 

DISCOVERY REQUESTS 

INSTRUCTIONS: 

1. The use of "you", "your", "Federal Aviation Administration", "FAA," and 

"Complainant" refers to the Federal Aviation Administration, its officials, 

employees, and agents. 

2. The singular shall include the plural and vice versa; the terms "and" or "or" shall 

be both conjunctive and disjunctive; and the term "including" means "Including 

without limitation". 

3. "Date" shall mean the exact date, month and year, if ascertainable or, if not, the 

best approximation of the date (based upon relationship with other events). 

4. The words "document" and "statement" shall mean any writing, recording, 

electronically stored Information or photograph in your actual or constructive 

possession, custody, care or control, which pertains directly or indirectly, in whole 

or in part, either to any of the subjects listed below or to any other matter relevant 

to the issues in this action, or which are themselves listed below as specified 

documents, including, but not limited to: correspondence, memoranda, notes, 

message, diaries, minutes, books, reports, charts, legers, invoices, computer 

printouts, microfilms, video tapes or tape recordings. Requests for statements 

include any and all statements recorded by any means, including but not limited 

to printed or typewritten statements, handwritten notes, electronic recordings, 

computer email messages, statements contained In memoranda, 

correspondence or other documents. 

5. Requests to "state the factual basis" for a contention are not intended to require 

you to marshal all evidence that may conceivably be used at the hearing. Such 
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requests are intended to evoke a reasonably detailed factual statement 

summarizing the basis for your contentions. 

INTERROGATORIES 

1. State the names of each person answering or assisting in answering each of the 

following discovery requests, their employer and title or position including their 

business mailing address, and the discovery request they answered or assisted 

in answering. 

2. State the name, business address, telephone number, place of employmient and 

job title of any person who has, claims to have or whom you believe may have 

knowledge or information pertaining to any fact or sanction alleged in the 

pleadings (as defined in §13.202 of the Rules of Practice and Federal Rules of 

Civil Procedure 7 (a)) filed in this action, or any fact or sanction underiying the 

subject matter of this action. 

3. State the specific nature and substance of the knowledge that you believe the 

person(s) identified in your response to interrogatory No. 2 may have. 

4. State the name, occupation, and business address of each person Complainant 

intends to call as a non expert witness in this proceeding. 

5. State the subject matter upon which each intended non expert: witness is 

expected to testify and the facts composing the testimony of each intended non 

expert witness. 

6. If the Complainant Intends to call an expert witness at the hearing, state the 

witness' name, occupation, and business address as well as the qualifications of 

this witness that Complainant intends to rely upon to permit this Intended witness 

to offer expert opinion testimony. 

7. State the subject matter upon which each intended expert witness is expected to 

testify and the facts composing the testimony of each intended expert witness as 

well as providing in detail the substance of the opinions to be provided by each 

person whom you may use as an expert witness at the hearing. 
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8. Please state the factors relied upon, and the weight given to each, to arrive at the 

proposed civil penalty of $15.000 in this action, and an explanation of how you 

computed each factor in arriving at the assessed civil penalty. 

9. Please identify each document (including electronically stored information) 

pertaining to each factor stated in your response to interrogatory No. 8 above. 

10. Please identify each document that you intend to proffer into evidence at the 

hearing. 

11. For the period prior to July 9-16, 2007, state the number of instances where the 

Respondent was found to have not complied with Part 121.467 (b) (13) of the 

Federal Aviation Regulations, the dates of those events, and the sanctions 

imposed. 

12. For the period since July 9-16, 2007, and continuing through the current date, 

state the number of instances where the Respondent was found, or was alleged 

to have not complied with Part 121.467 (b) (13) of the Federal Aviation 

Regulations (Flight Attendant Duty Period Limitations and Rest Requirements), 

the dates of those events, and the sanctions imposed or pending. 

13. For the period prior to July 9-16, 2007, state the number of instances where the 

Respondent was found to have not complied with Part 121.467 (Flight Attendant 

Duty Period Limitations and Rest Requirements), excluding (b) (13) of the 

Federal Aviation Regulations, the dates of those events, and the sanctions 

imposed. 

14. For the period since July 9-16, 2007, and continuing through the current date, 

state the number of instances where the Respondent was found, or was alleged, 

to have not complied with any provision contained in Part: 121.467 of the Federal 

Aviation Regulations (Flight Attendant Duty Period Limitations and Rest 

Requirements), excluding (b) (13)), the dates of those events and the sanctions 

imposed or pending.. 

15. Please state whether or not the alleged violation set forth in the Complaint in this 

action was inadvertent. 

16. Please state whether or not the alleged violation set forth in the Complaint in this 

action was deliberate. 
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17. Please state whether or not the alleged violation set forth in the Complaint was 

the result of gross negligence. 

18. Please state whether or not the alleged violation set forth in the Complaint 

amounted to a substantial disregard for safety. 

19. Please state whether or not the past compliance history of the Respondent with 

respect to Part 121.467 (b) (13) of the Federal Aviation Regulations was 

considered in the assessment of the proposed civil penalty in this action and 

whether or not this history resulted in an increased or mitigated sanction or civil 

penalty. 

20. Please state the attitude of the Respondent in responding to the alleged violation 

and the nature of corrective action taken by the Respondent to prevent similar 

violations in the future. 

21. Please state the significance or degree of the safety risk associated with the acts 

of Respondent during the period July 9-16, 2008 that resulted in the filing of a 

COMPLAINT in this action. 

22. Please state any aggravating factors considered by you in arriving at the amount 

of the proposed civil penalty in this action. 

23. Please state any mitigating factors considered by you in arriving at the amount of 

the civil proposed penalty in this action. 

24. Please state whether or not the acts of the Respondent during the period July 7-

13, 2007 were the product of a systemic condition. 

25. Please state whether or not the Complainant considered Administrative Action 

(such as a Warning Notice or Letter of Correction) to resolve the subject matter 

of the Complaint and if it did, the reasons why such a resolution was not adopted. 

26. Please state whether or not the Complainant considered the financial health of 

the Respondent during 2007, when the events that gave rise to the Complaint in 

this action arose. 
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REQUESTS FOR PRODUCTION 

1. Copies of those documents identified by Complainant in Complainant's 

responses to interrogatories 9 and 10, 

2. Copies of all documents containing statements of persons whom Complainant 

intends to call as a witness in this matter concerning the actions of the 

Respondent during the period July 9-16, 2008 that are the subject matter of the 

Complaint in this matter, prepared at that time or at any time since. 

3. Copies of any and all documents in Complainant's possession, including but not 

limited to correspondence, memoranda, notes, and electronic mail messages, 

concerning the actions of the Respondent during the period July 9-16, 2008 that 

are the subject matter of the Complaint in this matter. 

REQUESTS FOR ADMISSION 

Respondent requests that Complainant admit or deny the following requests for 

admission and serve your sworn answers on Respondent within 30 days from the date 

of receipt of the request. Responses must either admit or deny the request or state the 

objection to the request; if the request Is denied, the denial must be fair and deny only 

so much of the request as can truthfully be denied. When good faith requires that a 

party qualify an answer or deny only a part of the matter of which an admission is 

request, the party shall specify so much of it as is true, and qualify or deny the 

remainder. A party cannot say he or she does not know enough to admit or deny the 

request unless he or she states that he or she has made a reasonable inquiry and still 

cannot come up with the information. 

1. Admit that during 2008, when the events that gave rise to the Complaint In this 

action occurred, Respondent was a publically held company and it reported to 

the U. S. Security and Exchange Commission a net loss of $266M on revenues 

of $2.58. 

2, Admit that when the events that gave rise to the COMPLAINT In this action were 

occurring during 2008, the Respondent was selling aircraft, postponing the 

delivery of other aircraft, reducing its wort< force, and taking other financial steps 

in order to remain a viable entity and preserve the jobs of 8,000 employees. 
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3. Admit that Respondent has a positive compliance disposition and record, not 

only with respect to Flight Attendant Flight and Duty Time Limitations but with 

respect to all applicable provisions in the Federal Aviation Regulations. 

WHEREFORE, Complainant is requested to produce the requested information and 

documents and to respond to the request for admission within thirty (30) days of service 

of this request. 

Respectfully submitted this day of April, 2010 

Stephen J. KolskT"^ 

Florida Bar Number 01034082 

Executive Vice President Operations & Corporate Affairs 

AirTran Airways, Inc. 

9955 AirTran Blvd 

Oriando, FL 32827 

Phone: (407)318-5108 

FAX: (407) 318-5901 

Email: Steve.Kolski@AirTran.com