U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERALAVIATIONADMINISTRATION 

# RECEIVED JUL 2 12014 

## HEARING DOCKET

FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. COMAIR, INC., Respondent. DocketNo. FAA-2014-0319 FAA Case No. 2011S0271013
Judge Sullivan
MOTION TO STRIKE, MOTIONTO DEEMADMITTED, AND RESPONSE IN OPPOSITIONTO 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 Motionto 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

1It does not appearthattheregulation citedby Respondent, 14 C.F.R. § 13.216, authorizes the waiver ofany particularright and does not authorize one partyto excusethe otherparty's failure to timely file apleading. Rather, § 13.216 is an instructionthat any waivers thathappen to be made mustbemade in writing or on the record at hearing. Regardless, however, tothe extentthat§ 13.216 mayhave authorized a waiver, the FAA clid notwaive any ofits rights. 2The Respondent also requested awaiver ofthe Answerperiod, and filed an identicalMotion to Dismiss, in the factually unrelated case againstRespondentthathas been assignedDocketNo. 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 Complaintbe deemed admitted, as Respondent has failed to timely file an Answer or other appropriateresponse to the Complaint. The FAA and the Administrator ofthe 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 coveredby the regulations, but necessarily the Administrator's ability to take a certificate action is limitedby whether ornotthe individualholds a certificate (one cannotrevoke or suspend a certificatethat 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 ifit 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 checkFAArecords to see ifthereis apending enforcement action because a certificate holder may attempt to surrender the certificate to an individual who has no involvement in 

### or personal knowledge ofthe 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 ifthe FAA's internal guideline was to not pursue civil

3This most commonly occurs when the likely certificate action wouldbe arevocation.
2

### whatsoever to this case. Further, even ifthe 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 shouldbe struck entirely. Respondent's Motion is not simply unfounded, it is entirely frivolous. No reasonable person, much less a reasonable attorney, could concludethatParagraph IO(b) 

### ofChapter5 ofFAA 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 ofthe FAA to agree to substantial discounts in settling up with no[n]-operating entities," the Respondent inthis 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 thatthere 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 ofdelay. The Motion to Dismiss is, in its entirety, immaterial and irrelevant, and the Motion to Dismiss shouldbe stuckin its entirety.

4 As Respondent notes in its Motion to Dismiss, Comair didnot cease operations and vanish entirely, butrather was merged into its parent corporation, DeltaAirlines. See Motion to Dismiss at 1n.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, thepurpose offiling the Motionto Dismiss was notbecausethe Motionhad 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 pursuantto 14 C.F.R. § 13.209(f). Respondent's Motion to Dismiss is frivolous and was filed for the purpose ofdelay. The Motion should be struck, and the allegations in the Complaint should be deemed admitted. Regardless, the Motionto Dismiss is withoutmerit and is due to be denied.**-~·** 

### Respectfully submitted

# this~ day ofJuly, 2014. 

# /£

CHRISTOPHERR. EVENSON Attorney Office ofthe Regional Counsel



### 4CERTIFICATE OF SERVICE I hereby certify that the foregoing FAA's Motion to Strike, Motion to Deem Admitted, and Response in Oppositionto Motion to Dismiss was sent: original and one copyviacertified mail to: Federal AviationAdministration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: HearingDocket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2Wl000
one copy viacertifiedmail and facsimile to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536
one copy viacertifiedmail and facsimile to: RobertP. Silverberg, Esq. 1101 30th Street, NW, Suite 120 Washington, D.C. 20007 Facsimile: (202) 944-3306

Dated



### 5Stevenson, Chris (FAA} From: Stevenson, Chris (FAA) Sent: To: Friday, June 27, 2014 2:37 PM 'Robert Silverberg' Subject: RE: 2011S0271013 and 2011S0271015
Bob, Ithink that in the long run we will be able to move this to resolution more quickly ifwe kept the time pressure foryour client to respond intact. Sorry ifthis causes any inconvenience to you. Thanks, Christopher Stevenson Attorney Office ofthe 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: JeffJohnson subject: 201150271013 and 201150271015 Chris, I am waiting for the return ofcounsel 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 ofany 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 oftime thereafter. If you agree, I will draft a record of wa·lver for review and signature. Bob Silverberg

PRIVILEGED AND CONFIDENTIAL The information transmitted is intended only for the person or entity to which it is addressed and is (1) subject to attorneyclient privilege; (2) attorney work product; or (3) confidential. Any review, retransmission, dissemination or other use of, or taking ofany action in reliance upon this information by persons or entities other than the intended recipient is unauthorized and strictly prohibited. Ifyou received this in error, please contact the sender and delete the material from any computer. Robert P. Silverberg Silverberg, Goldman & Bikoff, L.L.P. 11101 30th StreetN. W Suite 120 Washington, D.C. 20007 rsilverberq@sgbdc.com direct line 202-944-3304 fax 202-944-3306 mobile 301-922-8895

210/23/09 2150.38 Chg 1 I. Issuance ofLetter ofCorrection. When the inspectoris satisfied thatthe terms and conditions oftheremedial training course and objective have been met, he or she closes the enforcement action with a letter ofcorrection. See sample letter ofcorrection for remedial training in Figure A-18 ofAppendixA. Issuance ofthe letter ofcorrection, which contains a statementthatthe required remedial training has been satisfactorily accomplished, closes the case.
m. Failure to Complete Training. Ifthe airman fails to meet anyterm or condition ofthe program or the agreement, the inspectornotifies the airman by letter, sentby regular mail and either certified mail, return-receiptrequested, or registered mail, thatparticipation in thetraining program has been terminated, and that appropriate legal enforcement action will be taken. See sample letter oftermination inFigure A-19 ofAppendix A.
n. Remedial Training Case Study. A remedialtraining case study is found in Figure A-20 ofAppendixA. 10. Voluntary Surrender ofCertificate.
a. Purpose. This section provides guidelines for handling a certificate holder's voluntary surrender ofa certificate. b. Surrender ofFAA Certificate for Cancellation. The FAA'sregulations 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, refusethe voluntary surrender ofa certificate ifit appears the surrender is being attemptedto avoid certificate action. FAA investigative personnel shouldbe alert for indications that a certificate holder is attempting to avoid a certificate actionthrough the voluntary surrender ofa certificate, including whetherthe certificateholder is the subject ofan enforcement investigation orenforcement action. Consequently, beforedetermining whetherto accept a certificate holder's voluntary surrender ofa certificate, FAA investigative personnel review actions in the EIS and other databases showing investigative orenforcement activity. Ifthe EIS or any other database reveals that the certificate holder is the subject ofan enforcement investigation or enforcement action, FAA investigative personnelrefusethe certificate holder's attemptto voluntarily surrender a certificate and continue with an investigation and recommend enforcement action, ifappropriate. See sample voluntary surrender ofcertificate form in Figure A-21 ofAppendixA. 11. Legal EnforcementActions.
a. General. This section describes enforcement actions thatFAAinvestigativepersonnel may determine are necessary or appropriate for violations oncethey determine that legal enforcement action is appropriate based onthe guidance in AppendixF, EnforcementDecision Process, and the guidance in this chapter.

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