# RECEIVED DEC 0 12014 BEFORE THE 

## u.s. DEPARTMENT OF TRANSPORTATIOJN-IEARING 

## DOCKET OFFICE OF HEARINGS

WASHINGTON, D.C.
FEDERAL AVIATION ADMINISTRATION Complainant,
vs. DELTA AIRLINES, INC. Respondent. DocketNo. FAA-2014-0814 FAA Case No. 2014S0670010

Administrative Law Judge Richard C. Goodwin
MOTION OF DELTA AIRLINES, INC., FOR LEAVE TO FILE REPLY Respondent DeltaAir Lines, Inc., ("Delta") hereby requests leave to file a reply brief (attached hereto) in support ofits Motion to Dismiss for Insufficiency, withprejudice, the Complaint filed against it by the Federal Aviation Administration ("FAA") inthe abovecaptioned matter. Delta filed and served its motion, pursuant to Rules 49(a), 209(a), 218(£)(1), and 218(f)(2)(ii) ofthe Ru1es ofPractice, onNovember 13. On November 24, Deltareceived FAA'sresponsive brief. FAA's briefcontains multiple mischaracterizations ofDelta's arguments, as well as several misstatements oflaw. Although the Ru1es ofPractice do not generally contemplate the filing ofreply briefs, Your Honor does have discretion to permit such filings ifthey will clarify the record and points oflaw. Delta further notesthattheproposedreplywouldnotsignificantly·addto·the volume ofbriefing,asit is only two-and-a-halfpages long.For the foregoing reasons, Deltarespectfully requests leave to file the attached reply brief in support ofits Motion to Dismiss for Insufficiency.

Dated: November 26, 2014 Respectfully submitted,

B

# y:#-::<-Lt------';f/;':---::'~--:-,."---o.IU'>-(;.<g"'--­ Jon-Peter F. Kelly

2 Assistant General Counsel DeltaAir Lines, Inc. Department 981 1030 Delta Boulevard Atlanta, Georgia 30354-1989 Tel: (404) 714-5631 Fax: (404) 677-2971 Email: jonpeter.f.kellv@delta.comPROPOSED REPLY BRIEFBEFORE THE U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
FEDERAL AVIATION ADMINISTRATION Complainant,
vs. DELTA AIR LINES, INC. Respondent. DocketNo. FAA-2014-0814 FAA Case No. 2014S0670010

Administrative Law Judge Richard C. Goodwin
REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS FORINSUFFICIENCY OF DELTA AIRLINES, INC. By leave ofthe Court, Respondent Delta Air Lines, Inc., ("Delta") hereby replies in support ofits Motionto Dismiss for Insufficiency, with prejudice, the Complaint filed against it by the Federal Aviation Administration ("FAA") in the above-captioned matter. I. Argument A. Based onthe Inspector's OwnAccount, He Was Granted "Free and Uninterrupted" Access to the Cockpit. FAA argues that Inspector Gar berg was denied "free and uninterrupted access" to the cockpit when Delta agents advised him that he had reserved thejumpseat for December 3, 2013, not December 2, 2013. FAA Response at 3-4. Even by the inspector's own account, however, his access was never impeded or restricted in any way. lnspectorGarberg checked·inatthegate atl8:25ESTandthenwas escorted·to the flight deck "[r]oughly tenminutes later" (around 18:35 EST). Exhibit 1to Delta's Motion, at 

### 1. From approximately 18:35 EST to 19:30 EST, the inspector was inthe cockpit. See id. (noting that Delta ground personnel advised ofreservation issue shortly after pushback clearance was received at 19:30 EST). When the captain-- the highest-ranking individual on the aircraft--offered to ensure that the inspector remained onboard, the inspector chose to deplane. In short, Delta granted the inspector "free and uninterrupted access" to the cockpit

-- and the Delta representative withthe greatest authority, the pilot-in-command, wanted to take steps to keep the inspector in place. Whatever the inspector's motivations mayhave been in choosing to deplane, those motivations do not alter the fact that the inspector's access to the cockpit ended only because he voluntarily made that choice, not because Delta denied him access. B. FAA Does Not Dispute That Its Items ofProofOffer No Evidence in Support oflts Second Allegation ofDenied Access. Delta has argued that the second allegation ofdenied access is contradictedbythe statements ofFAA's ownwitnesses. FAA argues three points in opposition, all ofwhich are meritless. First, FAA asserts that Delta did not provide "a single citation oflaw" in support ofits argument. FAA Response at 5. Inpoint offact, Delta cited FAA Order 2150.3B, Chapter 8, section 3, which requires FAA to base alleged violations on "items ofproofconsist[ing] of
... each piece ofevidence gathered to prove the violations." DeltaMotion at 5. Second, FAA claims thatthe "general notion" ofa requirement to base alleged violations on evidence does not "preclude" FAA from making allegations without any evidentiary support. FAA Response at 5. This argument is absurd on its face, as it would render Order 2150.3B, as well as the entire EIR process, meaningless. By FAA's logic, it could draft a complaint alleging violations even prior to (or absent) an investigation, because no items ofproofwould be needed to undergird the allegations, Finally, FAAfound Delta's argument ''puzzling"thatthe items ofproof contradicted the allegations ofparagraph 8 ofthe Complaint. Id. at 5. The contradiction is direct and uncomplicated: FAA alleges that Inspector Garber tried to gain access "to two later flights from JFK to LHR [on December 2],"**Complaint~** 8, whereas the FAA's items ofproofindicate that Inspector Gar berg never attempted to board any such flights, and instead "return[ed] to
2Minneapolis onthe next available flight." Exhibit 2 to Delta's Motion, at 1. To be clear, there is
no dispute as to these facts. Inspector Garberg's written statement and that ofhis supervisor are in agreement that the facts alleged inparagraph 8 ofthe Complaint never happened

-- and Delta does not dispute those two statements. II. Conclusion The FAAhas not disputed the fact (1) that its inspector volnntarily deplaned from the December 2 flight, or (2) that its own items ofproofdo not furnish any evidence ofsubsequent attempts to board later flights. Therefore, for the reasons set forth herein and in its Motion to Dismiss for Insufficiency, Respondent Delta Air Lines, Inc., respectfully requests that the Complaintbe dismissed, withprejudice, for insufficiency.

Dated: November 26,2014 Respectfully submitted,



### 3 DeltaAir Lines, Inc. Department 981 1030 Delta Boulevard Atlanta, Georgia 30354-1989 Tel: (404) 714-5631 Fax: (404) 677-2971 Email: jonpeter.f.kelly@delta.comCERTIFICATE OF SERVICE I hereby certify that, on this 26th day ofNovember2014, I caused the foregoing Motion for Leave to File Reply and proposed Reply BriefofDelta Air Lines, Inc., to be served upon the following: Attention: Hearing Docket Clerk, AGC-430 Federal Aviation Administration Suite 2Wl000 Wilbur Wright Building 600 Independence Avenue, S.W. Washington, D.C. 20591 Tel.: (202) 385-8227 (original and one copy by UPS delivery) The Honorable Richard C. Goodwin Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, D.C. 20590 Tel.: (202) 366-5121 (StaffAssistant) Fax: (202) 366-7536 (one copy by facsimile and one copy by UPS delivery) Christopher R. Stevenson, Esq. Office ofthe Regional Counsel, AS0-7 Southern Region Federal AviationAdministration 1701 ColumbiaAvenue College Park, Georgia 30337 Tel.: (404) 305-5200 Fax: (404) 305-5223 (one copy by facsimile and one copy by UPS delivery)