# SILVERBERG 

# GOLDMAN& 

# BIKOFF, L.L.P. GEORGETOWN PLACE • SUITE 120 • 1101 30THSTREET, NW • WASHINGTON, D.C. 20007 VoiCE(202)944-3300 • FAcsrMm(202)944-3306 ATTORNEYS AT LAW

VL4FEDEX Federal Aviation Administration 600 Independence Avenue, S.W. Wilbur Wright Building Suite 2W1000 Washington, D.C. 20591 July 2, 2014

(Attention: Hearing Docket Clerk, AGC-430) Re: In the Matter ofComair, Inc.

Dear Sir or Madam: DocketNo. FAA-2014-0318, FAA Case No. 2011 S0271015 DocketNo. FAA-2014-0319, FAA Case No. 2011S0271013 "**~~·** II**~**

Enclosed for filing in each ofthe two above-referenced cases please find an original and one copy ofthe Motion to Dismiss ofComair, Inc. Also enclosed is an additional copy ofeach ofthe Motions and a pre-addressed, postage paid envelope. Please date-stamp the additional copy and return it to our office in the enclosed envelope. Thank you for your assistance. Please call me at the telephone number listed above if you have any questions regarding this matter. Very truly yours, SILVERBERG, GOLDMAN & BIKOFF, LLP Attorneys for COMAIR, INC.Inthe matter of COMAIR, INC. Respondent 

### BEFORE THE U.S. 

### DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.

DocketNo. FAA-2014-0318 FAA CaseNo. 201180271015 Administrative Law Judge J.E. Sullivan


### MOTION TO DISMISS OF COMAIR, INC. Pursuantto Rules 209(a) and 218(f)(2)(ii) ofthe Rules ofPractice (14 C.F.R. §§ 13.209(a) and 13.218(f)(2)(ii)), Respondent Comair, Inc. ("Comair") hereby moves to dismiss, withprejudice, the Complaint filed against itby the Federal Aviation Administration ("FAA'') in the above-captioned matter. Comair's parent shut downthe operations ofComair and Comair ceased all revenue flight operations on September 29,2012 and no longer exists as a separate corporate entity. 1 By letter dated December 17, 2012, Comair notified the FAAthat is was voluntarily surrendering its Air Carrier Certificate and requested that itbe cancelled onDecember 27, 2012. See Exhibit 

### 1. By letter dated December 17, 2012, the FAA accepted the voluntary surrender ofComair's Air Carrier Certificate and confirmedthat the effective date ofthe voluntary surrender was December 27,2012. See Exhibit 2. As stated in FAA Order 2150.3B (FAA Compliance and EnforcementProgram) the FAA is to "refuse the voluntary surrender ofa certificate ifit appears the surrender is being attempted to avoid certificate action." Order 2150.3B goes onto explainthat "before determining whether to accept a certificate holder's voluntary surrender ofa certificate, FAA investigative personnel

1 Comair was merged into DeltaAir Lines, Inc., effective December 28,2012.

### review actions inthe EIS [Enforcement Information System] and other databases showing investigative or enforcement activity. Ifthe EIS or any other database reveals that the certificate holder is the subject ofan enforcement investigation or enforcement action, FAA investigative personnel refuse the certificate holder's attempt to voluntarily surrender a certificate and continue with an investigation and recommend enforcement action, ifappropriate." FAA Order 2150.3B, Chapter 5, subparagraph 1 O.b., Page 5-14 (Emphasis added.) The Notice ofProposed Civil Penalty in this case was issuedbythe FAA on August 23, 2011. Thus, Comair was clearly the subject ofa FAA enforcement investigation or enforcement action when the FAA accepted the voluntary surrender ofComair's Air Carrier Certificate on December 17, 2012. Since the FAA accepted the voluntary surrender ofthe Comair Air Carrier Certificate, and did so without even attempting to reserve the right to pursue this enforcement action, it is barredby its owninternal rules and policies from prosecuting the Complaint filed against Comair inthis matter. Further, the action takenby Comairto shut down and to cease air carrier operations was part ofa corporate decision to reorder the arrangements from whom Comair's parent would obtain service from regional air carriers in the future.

2WHEREFORE, for the reasons set forth above, Respondent Comair, Inc. respectfully requests the grant ofthis motionto dismiss, with prejudice, the Complaint filed against itby the Federal Aviation Administration inthe above-captionedmatter.

Dated: July 2, 2014 Respectfully submitted, SILVERBERG, GOLDMAN & BIKOFF, L.L.P. Attorneys for 

### COMAIR, 

### INC.

By:

### -t~'4-~~~~~~ Robert P. Silverberg, Esq.

3 1101 30111 Street, N.W. Suite 120 Washington, D.C. 20007 Tel: (202) 944-3304 Fax: (202) 944-3306 Email: rsilverberg@sgbdc.com

### EXHIBIT 1December 17, 2012 Mr. James A. Wohlhueter Principal Operations Inspector Comair Certificate Management Unit One OxmoorPlace 101BullitLane, Suite 105 Louisville, KY 40222 Dear Mr. Wohlhueter, Comair, Inc. 82 Comair Blvd. Erlanger, KY 41018 859.767.2550 www.comair.com

This letter serves as notificationthat Comair, Inc. is voluntarily surrendering its operating certificate onDecember 27, 2012. As you know Comair, Inc. ceased revenue operations on September 29, 2012, buthas maintained its operating certificate to allow an orderlytransfer of aircraft backto lease holders or other entities. As ofDecember01, 2012 all aircraft have been removed from Comair's operations specifications. I respectfullyrequest that Comair's operating certificate be cancelled on December 27, 2012. Sincerely,

Kenneth B. Baell Vice President, Aircraft Operations Comair, Inc. (859) 980-7534

### EXHIBIT2U.S. Department of Transportation Federal Aviation Administration December 17,2012 CERTIFIED Return Receipt Mr. Kenneth B. Baell Vice President, Aircraft Operations Comair Inc. 82 Comair Blvd. Erlanger, KY 41018 Dear Mr. Baell: ATL CMO, S0-65 Comair certificate Management Unit One Oxmoor Place 101 Bullitt Lane, Suite 105 Louisville, KY 40222

We are in receipt of your letter informing us ofthe voluntary surrender of COMA005B Air Carrier Certificate. We will archive the Operations Specifications immediately. The effective date of the surrender ofthe Air Carrier Certificate is December 27, 2012. Sincerely, 

## -C.,z· Tony T. Campbell ManagerATL-CMO 65

### CERTIFICATE OF SERVICE I hereby certify that onthis 2nd day ofJuly 2014, I causedthe foregoing Motionto Dismiss ofComair, Inc. to be servedupon the following: Federal Aviation Administration 600 Independence Avenue, S.W. Wilbur Wright Building Suite 2W1000 Washington, D.C. 20591 (Attention: Hearing Docket Clerk, AGC-430) Tel: (202) 385-8227 (original and one copyby FedEx overnight delivery) The Hon. J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, D.C. 20590 Tel: (202) 366-2132 Fax: (202) 366-7536 (one copy by facsimile and First Class Mail) Christopher R. Stevenson, Attorney Office ofthe Regional Counsel, ASO-7 SouthernRegion Federal Aviation Administration 1701 Columbia Avenue College Park, GA 30337 Tel: (404) 305-5200 Fax: (404) 305-5223 (one copy by facsimile and First Class Mail)