Benjamin Edelman

Opposition to Motion to Strike Comments

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BEFORE THE DEPARTMENT OF TRANSPORTATION

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS

WASHINGTON, D.C.

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)

Benjamin Edelman, )

 third-party complainant )

)

v. ) Docket DOT-OST-2013-0214

)

Air Europa )

)

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OPPOSITION OF BENJAMIN EDELMAN TO 

AIR EUROPA’S MOTION TO STRIKE COMMENTS

Comments with respect to this document should be addressed to:

Benjamin Edelman

169 Walnut St.

Brookline, MA 02445

E-mail: ben@benedelman.org

Dated: March 11, 2014
Benjamin Edelman

Opposition to Motion to Strike Comments

2 of 7

BEFORE THE DEPARTMENT OF TRANSPORTATION

OFFICE OF AVIATION ENFORCEMENT AND PROCEEDINGS

WASHINGTON, D.C.

---------------------------------------------------------------)

)

Benjamin Edelman, )

 third-party complainant )

)

v. ) Docket DOT-OST-2013-0214

)

Air Europa )

)

---------------------------------------------------------------)

OPPOSITION OF BENJAMIN EDELMAN TO 

AIR EUROPA’S MOTION TO STRIKE COMMENTS

1. On February 21, 2014, Edward Hasbrouck filed a single 1.5-page 

comment (excluding cover). On March 2, Mike Borsetti filed a single 2-page comment

(excluding cover and certificate of service). As best I can tell, both commenters used the 

standard Regulations.gov “Comment Now!” function, a distinctive blue button associated 

with most documents on that site. (See Attachment 1.) Mr. Borsetti also served his 

comment on both parties and the DOT by email.

2. Air Europa’s March 10, 2014 motion seeks to strike those comments. Air 

Europa argues that “Neither commenter is a party to this proceeding, and neither has 

submitted a motion for leave to file,” so Air Europa says “The comments are not 

authorized under the Department’s rules and should be stricken.”

3. Air Europe mischaracterizes the comments and applicable rules. The 

comments are not appearances of non-parties. The comments are, as Regulations.gov’s 
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own labeling and submission systems plainly indicate, merely comments. (Attachment 1: 

“Comments of Edward Hasbrouck” and “Comments in Support of an Enforcement 

Action”, emphasis added.) Indeed, the commenters do not receive the procedural 

benefits that would be granted to those who file appearances. For example, as 

commenters, the commenters need not be included on service lists in subsequent motion 

practice. 

4. No leave is required to submit a public comment. The Regulations.gov 

site indicates no such requirement. Air Europa cites authority for the required process for 

an appearance by a non-party, but Air Europa cites no authority disallowing public 

comments of this sort.

5. On Air Europa’s view, no member of the public could file a comment via 

Regulations.gov as to any third-party complaint, and perhaps in any enforcement 

proceeding, except with prior DOT approval. If such approval were regularly granted, as 

I believe it would be, that would be make-work for the DOT and for interested members 

of the public. Indeed, it would reduce the number of comments to a small fraction of the 

current amount, since most commenters would neither know how to obtain the required 

permission nor care to do so. This approach would also ignore the obvious utility of the 

simple “Comment Now!” function already built into Regulations.gov and provided for 

exactly this purpose. 

6. Air Europa’s vision is manifestly contrary to the Presidential 

Memorandum on Transparency and Open Government (January 21, 2009). That 

memorandum calls for “participatory” “public participation” to “enhance[] the 

Government’s effectiveness and improve[] the quality of its decisions.” The 
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memorandum continues: “Knowledge is widely dispersed in society, and public officials 

benefit from having access to that dispersed knowledge. Executive departments and 

agencies should offer Americans increased opportunities to participate in policy-making 

and to provide their Government with the benefits of their collective expertise and 

information.” The Regulations.gov site provides a “Comment Now!” button for precisely

these reasons. The commenters provided the specialized expertise that the Memorandum 

anticipated, at no charge to the DOT or taxpayers, requiring no time or effort from DOT 

staff beyond the limited time to read the brief comments (if DOT staff so choose).

7. Nor can there be any suggestion that the Regulations.gov “Comment 

Now!” button is a mere default inapt in this docket. Even within this docket, some 

documents have “Comment Now!” buttons and other documents have no such button. 

See Exhibit 1 (showing six documents in the docket available for comment, but one 

marked “Comments Not Accepted” and one marked “Comment Period Closed.” The 

commenters chose to comment on documents that include that button, during a time when 

the button was operational and available.

8. Air Europa then resorts to 14 CFR § 300.5(b), prohibiting any person from 

“disrupt[ing] or interfere[ing] with the fair and orderly disposition of a DOT proceeding.” 

Whatever behavior this section prohibits, it does not prohibit concise, relevant public 

comments submitted via the official Regulations.gov system provided for that purpose.

9. By all indications, Air Europa’s real complaint against the commenters is 

that Air Europa doesn’t like the substance of their remarks. Air Europa is entitled to that 

view. Unless DOT orders Air Europa to respond to the comments, Air Europa need not 

do so and, indeed, can ignore them completely. Alternatively, Air Europa could respond 
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in substance, e.g. arguing why the commenters, in its view, misstate applicable law or 

fact (perhaps after seeking leave for such a supplemental filing). But Air Europa’s 

dislike of the commenters’ remarks is not grounds for the comments to be stricken.

10. In my view, the commenters raise a timely and significant point: Air 

Europa’s January 14 Answer and February 10 Answer both fail to address the crucial 

question in my initial complaint—whether, on the date of filing of my complaint, Air 

Europa’s US site in fact made the false statement I allege (whether or not the screenshot 

in my complaint proves that such false statements were made on the US site). Air Europa 

could easily answer that question. Despite four clear invitations to do so (in my 

complaint, in my reply, and in both the commenters’ submissions), Air Europa has failed 

to do so. Here, public comment serves a valuable purpose—allowing the concerned 

public to reveal its skepticism of Air Europa’s silence on this crucial question, making it 

that much clearer that Air Europa has not told the DOT the practice of its US site as of 

the date in question.

11. For these reasons, I ask that the comments remain in the record, to be 

given whatever weight DOT staff see fit.

Respectfully submitted,

/s/

Benjamin Edelman
Benjamin Edelman

Opposition to Motion to Strike Comments

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Exhibit 1
Benjamin Edelman

Opposition to Motion to Strike Comments

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Certificate of Service

I hereby certify that I have, this 11th day of March, 2014 caused a copy of the foregoing 

Reply to be served by electronic mail on the following persons:

Aaron A. Goerlich, Esq. agoerlich@ggh-airlaw.com

Robert Gorman, Esq. robert.gorman@dot.gov

Mike Borsetti mike@borsetti.com

Edward Hasbrouck edward@hasbrouck.org

/s/

_____________________

Benjamin Edelman