U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

REC " rj 

I 

HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

COMAIR, INC., 

Respondent. 

Docket No. FAA-2014-0318 

FAA Case No. 2011S0271015 

Judge Sullivan 

REPLY IN SUPPORT OF MOTION TO STRIKE AND MOTION TO 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 now replies in support of its Motion to Strike. 

The Motion to Dismiss Was Frivolous and Made For Purpose of Delay 

In the Motion to Strike, the FAA noted that the "FAA policy" relied upon by Respondent 

in the Motion did not actually exist (and that Respondent knew it did not exist), and presented 

evidence indicating that the true purpose of the 'Motion to Dismiss was to delay when 

Respondent would have to file an Answer. 

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, and the Administrator has accepted that surrender. There can be no 

suspension or revocation of a certificate that does not exist. The existence or non-existence of a 

certificate, however, presents no bar at all to a civil penalty action, which can be taken against a 

current certificate holder, a former certificate holder, or an entity that has never held a certificate 

of any sort. Respondent's assertion that there is no difference in these two situations is specious. 

The FAA does not have any policy of any sort precluding a civil penalty against a company or 

individual on the basis that the company or individual 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 of the action. Additionally, as Respondent 

noted in its Motion to Dismiss, this is not a situation where Respondent simply ceased to operate 

- rather, it is a situation where a wholly owned subsidiary of one corporation merged into its 

parent corporation, which is itself an air carrier. Regardless, the Respondent's opinion of whether 

the FAA has an interest in enforcing the Federal Aviation Regulations could not possibly form 

the basis for dismissing an enforcement action. 

The Judge Can Properly Consider Opposing Counsel's Statements Demonstrating His 

Knowledge of the Inaccuracy of His Assertions 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 of this assertion, the 

FAA quoted a statement by opposing counsel in which opposing counsel asserted that it was an 

informal policy of tl1e FAA to accept reduced civil penalties against entities that were no longer 

operating. This flatly contradicted Respondent's assertion in its Motion to Dismiss that the FAA 

has a written policy barring 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 of Evidence 4082 for the notion that "any party's efforts at settlement are generally 

not admissible to prove the validity of the 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 in order to prove the validity of the allegations in the Complaint. Rather, 

the statement was presented to demonstrate Respondent's knowledge of the frivolousness of its 

arguments to the Court. The Federal Rules of Evidence 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 presented to the Judge by Motion. While a Respondent 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 of this case, 

knowing full well that no such policy exists, and this knowledge is evidence by Respondent's 

statement in settlement discussions. 

1 Respondent also presents arguments about whether a party can vigorously deny liability while at the same time 

pursuing settlement. Response at 2-3. However, this part of the Response addresses an argument never made by the 

FAA. 

2 Respondent also cites FAA Order 2150.3B, Chapter 2, § 3(g), which is a statement that the FAA's compliance and 

enforcement program is fair and reasonable. This section has no particularized commentary on this situation. 
The Sanction Sought Is Appropriate 

Finally, Respondent argues that the Court is prohibited from striking its Motion, and that 

granting the Agency's Motion to Deem Admitted would be "a fundamental breach of the 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 it feels would be 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 a frivolous 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 of Part 13 to grant a motion 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 of the 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, if the Motion to 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 

a motion is explicitly provided for in Subpart G. 
Granting the Motion to Strike, and then the Motion to Deem Admitted, would not 

"unfairly and improperly deprive[ Respondent] of the 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 

which it was required to do so. Instead of timely filing an Answer, Respondent chose to interpose 

a frivolous Motion to Dismiss, filed solely for the purpose of avoiding its responsibility to 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 authorized by the regulations. They can, and should, be granted . 

.,...1--

Respectfully submitted this '23 day of July, 2014. 

~=--+-- CHRISTOPHER R. S EVENSON 

Attorney 

Office of the Regional Counsel 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing FAA's Motion to Strike, Motion to Deem Admitted, and 

Response in Opposition to Motion to Dismiss was sent: 

original and one copy via certified mail to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl000 

one copy via certified mail and facsimile to: 

The Honorable J.E. Sullivan 

Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, SE (Ell-31 0) 

Washington, DC 20590 

facsimile: (202) 366-7536 

one copy via 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 

e Regional Counsel 

~UL .2.3 20_Mi 

Dated