U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATIONADMINISTRATION 

# REC " rj 

## I


## HEARING DOCKET
FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. COMAIR, INC., Respondent. DocketNo. FAA-2014-0318 FAA CaseNo. 2011S0271015
Judge Sullivan
REPLY IN SUPPORT OF MOTION TO STRIKE AND MOTIONTO DEEM ADMITTED Rather than timely filing an Answer, Respondent filed a Motion to Dismiss the Complaint in this case. Because that Motion to Dismiss was frivolous and submitted solely for purpose of delay, the FAA filed a Motion to Strike the Motion to Dismiss. The FAA further moved that, should the Motion to Strike be granted, the allegations in the Complaint should be deemed admitted, pursuant to 14 C.F.R. 

### § 13.209(f). Respondent Responded in opposition. The FAA nowreplies in support ofits Motionto Strike. The Motion to Dismiss Was Frivolous andMade ForPurpose of Delay Inthe Motionto Strike, the FAAnoted thatthe "FAApolicy" relied uponby Respondent in the Motion did not actually exist (and that Respondentknew it did not exist), and presented evidence indicating that the true purpose of the 'Motion to Dismiss was to delay when Respondentwouldhave to file anAnswer. In its Response, Respondent asserts that there is "no substantive difference between" certificate actions and civil penalty actions in this context. Response at 2. This assertion is i (**~**patently false. A certificate action literally cannot proceed when a Respondent has surrendered its certificate for cancellation, andthe Administratorhas accepted that surrender. There canbe no suspension or revocation ofa certificate that does not exist. The existence or non-existence ofa certificate, however, presents no bar at all to a civil penalty action, which canbe taken against a current certificate holder, a former certificate holder, or an entitythathas never held a certificate ofany sort. Respondent's assertion that there is no difference in these two situations is specious. The FAA does not have any policy ofany sort precluding a civil penalty against a company or individual onthe basisthatthe company orindividual no longer has a certificate. Respondent further argues that the FAA has no enforcement interest in the bringing this
case against it. This argument is baffling, as the FAA has in this case - as in all civil penalty
cases - an interest in the general deterrence effect ofthe action. Additionally, as Respondent noted in its Motionto Dismiss, this is not a situation where Respondent simply ceasedto operate

- rather, it is a situation where a wholly owned subsidiary of one corporation merged into its parent corporation, which is itselfanair carrier. Regardless, the Respondent's opinion ofwhether the FAA has an interest in enforcing the Federal Aviation Regulations could not possibly form thebasis for dismissing an enforcement action. The Judge Can Properly Consider Opposing Counsel's StatementsDemonstratingHis Knowledge of the Inaccuracy of HisAssertions to the Court In the Motion to Strike, the FAA asserted that not only was Respondent's Motion to Dismiss frivolous, but that Respondent knew it was frivolous. In support ofthis assertion, the FAA quoted a statement by opposing counsel in which opposing counsel asserted that it was an informal policy oftl1e FAAto accept reduced civil penalties against entities that were no longer operating. This flatly contradicted Respondent's assertion in its Motionto Dismiss that the FAA has awrittenpolicybarring continuing an enforcement action against such an entity.In its Response, Respondent does not dispute that opposing counsel made the statementin question, but argues that the Judge carmot consider opposing counsel's statement because it was made for purposes of settlement. 1 Response at 3-4. In support of this, the Respondent cites Federal Rule ofEvidence 4082 for the notionthat "any party's efforts at settlement are generally not admissible to prove the validity ofthe underlying claim." Response at 3; 

### see Fed.R.Evid. 408(a) (precluding the use of statements made during compromise negotiations to prove the amount of a disputed claim). Unfortunately for Respondent, the FAA did not present Respondent's statement inorder to prove the validity ofthe allegations in the Complaint. Rather, the statement was presented to demonstrate Respondent's knowledge ofthe frivolousness ofits arguments to the Court. The Federal Rules ofEvidence do not limit what information the Judge may consider when determining whether a Motion was filed for purposes of delay. 

### See Fed.R.Evid. 408(b) (expressly allowing the court to consider for other purposes, such as a determining whether there was undue delay or whether the party was attempting to obstruct a prosecution, statements made during compromise negotiations). The Judge can, and should, consider Respondent's statement, through opposing counsel, contradicting its position as presentedtothe Judge by Motion. While aRespondent is permitted a vigorous defense, it is not permitted to file frivolous motions for the purpose of delay. Respondent argued to the Judge that written FAA policy barred the continuation ofthis case, knowing full well that no such policy exists, and this knowledge is evidence by Respondent's statementin settlement discussions.

1Respondentalso presents arguments about whether aparty can vigorously deny liability while atthe same time pursuing settlement. Response at 2-3. However, this part ofthe Response addresses an argumentnevermadeby the FAA. 2 Respondentalso cites FAA Order2150.3B, Chapter2, §3(g), which is a statementthatthe FAA's compliance and enforcementprogram is fair and reasonable. This sectionhas no particularized commentary onthis situation.The Sanction SoughtIsAppropriate Finally, Respondent argues thatthe Court is prohibited from striking its Motion, and that granting the Agency's Motion to Deem Admitted would be "a fundamental breach ofthe due process rights accorded all respondents," violating both the Subpart G of Part 13 of the regulations and the Constitution. Respondent does not identify what particular regulatory provision itfeels wouldbe violated. Respondent's arguments are without merit. First, striking a pleading filed for an inappropriate purpose is well within the authority of the Judge. Contrary to Respondent's arguments, "fundamental due process" does not preclude a court from striking afrivolous motion filed for an inappropriate purpose. Indeed, striking an inappropriate pleading is a relatively mild sanction within the range of those permitted to a court when dealing with frivolous filings. Further, while Respondent argues that it would violate Subpart G ofPart 13 to grant amotion to strike, Subpart G explicitly authorizes motions to strike. See 14 C.F.R. §§ 13.218(£)(4), 13.220(n)(1). Second, deeming the allegations in the Complaint admitted where Respondent has not filed an Answer is also well within the authority ofthe Judge. Indeed, pursuant to § 13.209(f), it is required if the Respondent did not timely file an Answer and has not shown good cause. Respondent has undisputedly not filed an Answer and, ifthe Motionto Strike is granted- which it should be

- Respondent would not have filed anything tolling its period to file an Answer either. It is neither a constitutional violation nor a violation of Subpart G of Part 13 of the Federal Aviation Regulations for the Judge to grant a Motion to Deem Admitted, given that such
amotion is explicitly providedfor in Subpart G.Granting the Motion to Strike, and then the Motion to Deem Admitted, would not "unfairly and improperly deprive[ Respondent] ofthe right to file an answer to the complaint." Respondent had both the right and the responsibility to file an Answer, and a time frame in whichitwas required to do so. Instead oftimelyfiling anAnswer, Respondent chose to interpose
afrivolous Motionto Dismiss, filed solely for the purpose ofavoiding its responsibilityto file an Answer. Contrary to Respondent's claims that this scenario is a "fundamental breach" of due process and the regulations, both a Motion to Strike and a Motion to Deem Admitted are expressly authorizedbythe regulations. They can, and should, be granted
. 

### .,...1-- Respectfully submittedthis

# '23 day ofJuly, 2014.

# ~=--+-- CHRISTOPHERR. S EVENSON Attorney Office ofthe Regional CounselCERTIFICATE OF SERVICE I hereby certify that the foregoing FAA's Motion to Strike, Motion to Deem Admitted, and Response in Oppositionto Motionto Dismiss was sent: original and one copy via certified mailto: FederalAviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing DocketClerk, AGC-430 WilburWrightBuilding- Suite 2Wl000
one copy viacertified mail and facsimile to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536
one copyvia certified mail and facsimile to: Robert P. Silverberg, Esq. 1101 301 h Street, NW, Suite 120 Washington, D.C. 20007 Facsimile: (202) 944-3306

s is nt eRegional Counsel

### ~UL 

## .2.3 20_Mi Dated