U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

RECEIVED 

JUL 2 1 2014 

HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

COMAIR, INC., 

Respondent. 

Docket No. FAA-2014-0319 

FAA Case No. 2011S0271013 

Judge Sullivan 

MOTION TO STRIKE, MOTION TO DEEM ADMITTED, AND RESPONSE IN 

OPPOSITION TO MOTION TO DISMISS 

On May 29, 2014, the FAA filed the Complaint in this case. On June 26, 2014, on the 

basis that Respondent's in-house counsel was on vacation, the Respondent requested that the 

FAA waive the Respondent's obligation to file a timely response. Attachment A at 1. The FAA 

declined to waive the Respondent's obligation to file an Answer1 Id On July 2, 2014, the 

Respondent filed a Motion to Dismiss? As the basis for its Motion to Dismiss, Respondent cites 

FAA Order 2150.3B, the FAA's compliance and enforcement program. Respondent asserts that 

the FAA's policy, as embodied in Order 2150.3B, bars the FAA from pursuing the instant civil 

penalty against Respondent. Motion to Dismiss at 1-2. Respondent's Motion to Dismiss is 

without merit, and should be denied. Indeed, Respondent's Motion to Dismiss is not only 

without merit, it is frivolous and appears to have been filed for no purpose other than delaying 

1 It does not appear that the regulation cited by Respondent, 14 C.F.R. § 13.216, authorizes the waiver of any 

particular right and does not authorize one party to excuse the other party's failure to timely file a pleading. Rather, 

§ 13.216 is an instruction that any waivers that happen to be made must be made in writing or on the record at 

hearing. Regardless, however, to the extent that§ 13.216 may have authorized a waiver, the FAA clid not waive any 

of its rights. 2 The Respondent also requested a waiver of the Answer period, and filed an identical Motion to Dismiss, in the 

factually unrelated case against Respondent that has been assigned Docket No. FAA-2014-0318. 

1 
Respondent's obligation to file an Answer in this case. Accordingly, the FAA moves to strike 

Respondent's Motion to Dismiss and that the Complaint be deemed admitted, as Respondent has 

failed to timely file an Answer or other appropriate response to the Complaint. 

The FAA and the Administrator of the FAA have authority to administratively impose 

civil penalties and also to take certificate actions against individuals or entities that hold them. 

The authority to impose monetary penalties extends to all persons covered by the regulations, but 

necessarily the Administrator's ability to take a certificate action is limited by whether or not the 

individual holds a certificate (one cannot revoke or suspend a certificate that does not exist). As a 

result, the situation occasionally arises where a certificate holder, aware of a likely certificate 

action, attempts to voluntarily surrender its certificate for cancellation in an effort to avoid the 

certificate action.3 Accordingly, FAA Order 2150.3B says that FAA investigative personnel will 

"refuse the voluntary surrender of a certificate if it appears the surrender is being attempted to 

avoid certificate action." FAA Order 2150.3B, Chapter 5, 'jjlO(b) (attached as Attachment B). 

Contrary to Respondent's assertion, the FAA has no "internal rules and policies" against 

pursuing a civil penalty against a former certificate holder. Rather, the FAA has guidance 

reminding its investigative personnel that they can reject an attempt to voluntarily surrender a 

certificate for cancellation when the surrender was being made in an attempt to avoid certificate 

action (the personnel are reminded to check FAA records to see if there is a pending enforcement 

action because a certificate holder may attempt to surrender the certificate to an individual who 

has no involvement in or personal knowledge of the pending certificate action). This case does 

not involve a certificate action, and Respondent's surrender was not made for purposes of 

avoiding a certificate action. Paragraph 1 O(b) of Chapter 5 of FAA Order has no relevance 

whatsoever to this case. Further, even if the FAA's internal guideline was to not pursue civil 

3 This most commonly occurs when the likely certificate action would be a revocation. 

2 
whatsoever to this case. Further, even if the FAA's internal guideline was to not pursue civil 

penalties against companies or individuals who had surrendered their certificates (which it is 

not), Respondent presents no basis for why the deviation from such an internal guideline would 

form the basis for the Judge to dismiss the Complaint. Respondent's Motion to Dismiss is due to 

be denied. 

Respondent's Motion to Dismiss is not only due to be denied, it should be struck entirely. 

Respondent's Motion is not simply unfounded, it is entirely frivolous. No reasonable person, 

much less a reasonable attorney, could conclude that Paragraph I O(b) of Chapter 5 ofF AA Order 

2150.3B has the meaning Respondent asserts. Additionally, inasmuch as opposing counsel has 

made representations to the undersigned that it is "the informal policy of the FAA to agree to 

substantial discounts in settling up with no[n]-operating entities," the Respondent in this case is 

well aware that the FAA is not required to drop civil penalty actions against entities that have 

surrendered their certificates and have ceased operations4 Not only is the Motion frivolous, but 

given the circumstances described above, it is difficult to conclude that there was any purpose to 

the Motion other than an attempt to delay Respondent's deadline to file an Answer in this case, 

which is an inappropriate purpose for any filing before this or any other court. See, e.g., F.R.C.P. 

II (b )(1 ). "Any party may make a motion to strike any insufficient allegation or defense, or any 

redundant, immaterial, or irrelevant matter in a pleading." 14 C.F.R. § 13.218(f)(4). Respondent 

knew that its motion to Dismiss was without merit and filed it solely for the purpose of delay. 

The Motion to Dismiss is, in its entirety, immaterial and irrelevant, and the Motion to Dismiss 

should be stuck in its entirety. 

4 As Respondent notes in its Motion to Dismiss, Comair did not cease operations and vanish entirely, but rather was 

merged into its parent corporation, Delta Airlines. See Motion to Dismiss at 1 n.l. 
Answer be filed within 30 days). Normally, the filing of a Motion to Dismiss would toll the 

period to file an Answer. See 14 C.F.R. § 13.218(f)(2)(ii). As discussed above, Respondent's 

Motion to Dismiss should be struck, meaning the Respondent would not receive the benefits of 

the tolling - indeed, it would be particularly inappropriate for Respondent to receive the tolling 

where, as here, the purpose of filing the Motion to Dismiss was not because the Motion had even 

colorable merit, but because Respondent sought to abuse the tolling period in order to avoid 

having to file an Answer. Since Respondent failed to timely file an Answer, and cannot benefit 

from the tolling provision of§ 13.218(f)(2)(ii) where the Motion to Dismiss is filed for the 

purposes of delay and is struck, the allegations in the Complaint should be deemed admitted 

pursuant to 14 C.F.R. § 13.209(f). 

Respondent's Motion to Dismiss is frivolous and was filed for the purpose of delay. The 

Motion should be struck, and the allegations in the Complaint should be deemed admitted. 

Regardless, the Motion to Dismiss is without merit and is due to be denied. 

-~· 

Respectfully submitted this~ day of July, 2014. 

/£ 

CHRISTOPHER R. EVENSON 

Attorney 

Office of the Regional Counsel 

4 
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 2Wl 000 

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-310) 

Washington, DC 20590 

facsimile: (202) 366-7536 

one copy via certified mail and facsimile to: 

Robert P. Silverberg, Esq. 

1101 30th Street, NW, Suite 120 

Washington, D.C. 20007 

Facsimile: (202) 944-3306 

Dated 

5 
Stevenson, Chris (FAA} 

From: Stevenson, Chris (FAA) 

Sent: 

To: 

Friday, June 27, 2014 2:37 PM 

'Robert Silverberg' 

Subject: RE: 2011S0271013 and 2011S0271015 

Bob, 

I think that in the long run we will be able to move this to resolution more quickly if we kept the time pressure for your 

client to respond intact. Sorry if this causes any inconvenience to you. 

Thanks, 

Christopher Stevenson 

Attorney 

Office of the Regional Counsel 

(404) 305-5200 

From: Robert Silverberg [mailto:rsilverberg@sgbdc.com] 

Sent: Thursday, June 26, 2014 4:41 PM 

To: Stevenson, Chris (FAA) 

Cc: Jeff Johnson 

subject: 201150271013 and 201150271015 

Chris, 

I am waiting for the return of counsel from vacation to obtain settlement instructions in connection with the Comair 

matters; 201180271013 and 201180271015. In the meantime, I am seeking your agreement to waive the deadline for 

filing answers to or, in lieu thereof, motions to dismiss, the compla"mts. The parties can do so, without requiring AU 

approval, pursuant to § 13.216 that provides, "Waivers of any rights provided by statute or regulation shall be in writing or 

by stipulation made at a hearing and entered into the record." 

Please let me know if you will agree to waive the answer/motion to d"1smiss filing deadline which is July 3, 2014 taking into 

account service by mail adds 5 days to the response deadline per 13.211 (e). In the event we unable to reach a 

settlement, we will agree to respond to the complaints in a reasonable period of time thereafter. 

If you agree, I will draft a record of wa·lver for review and signature. 

Bob Silverberg 

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unauthorized and strictly prohibited. If you received this in error, please contact the sender and delete the material from 

any computer. 

Robert P. Silverberg 

Silverberg, Goldman & Bikoff, L.L.P. 

1 
1101 30th Street N. W 

Suite 120 

Washington, D. C. 20007 

rsilverberq@sgbdc. com 

direct line 202-944-3304 

fax 202-944-3306 

mobile 301-922-8895 

2 
10/23/09 2150.38 

Chg 1 

I. Issuance of Letter of Correction. When the inspector is satisfied that the terms and 

conditions of the remedial training course and objective have been met, he or she closes the 

enforcement action with a letter of correction. See sample letter of correction for remedial 

training in Figure A-18 of Appendix A. Issuance ofthe letter of correction, which contains a 

statement that the required remedial training has been satisfactorily accomplished, closes the 

case. 

m. Failure to Complete Training. If the airman fails to meet any term or condition of the 

program or the agreement, the inspector notifies the airman by letter, sent by regular mail and 

either certified mail, return-receipt requested, or registered mail, that participation in the training 

program has been terminated, and that appropriate legal enforcement action will be taken. See 

sample letter of termination in Figure A-19 of Appendix A. 

n. Remedial Training Case Study. A remedial training case study is found in Figure A-20 

of Appendix A. 

10. Voluntary Surrender of Certificate. 

a. Purpose. This section provides guidelines for handling a certificate holder's voluntary 

surrender of a certificate. 

b. Surrender of FAA Certificate for Cancellation. The FAA's regulations provide for the 

voluntary surrender ofFAA-issued certificates for cancellation. See, for example, 14 C.F.R. 

§§ 61.27(a), 63.15(c), and 65.15, 119.6l(a) (1), 145.55(a) and (b). FAA investigative personnel, 

however, refuse the voluntary surrender of a certificate if it appears the surrender is being 

attempted to avoid certificate action. FAA investigative personnel should be alert for indications 

that a certificate holder is attempting to avoid a certificate action through the voluntary surrender 

of a certificate, including whether the certificate holder is the subject of an enforcement 

investigation or enforcement action. Consequently, before determining whether to accept a 

certificate holder's voluntary surrender of a certificate, FAA investigative personnel review 

actions in the EIS and other databases showing investigative or enforcement activity. If the EIS 

or any other database reveals that the certificate holder is the subject of an 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, if appropriate. See sample voluntary surrender of certificate form in Figure 

A-21 of Appendix A. 

11. Legal Enforcement Actions. 

a. General. This section describes enforcement actions that FAA investigative personnel 

may determine are necessary or appropriate for violations once they determine that legal 

enforcement action is appropriate based on the guidance in Appendix F, Enforcement Decision 

Process, and the guidance in this chapter. 

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