RECEIVED 

DEC 0 1 2014 

BEFORE THE 

u.s. DEPARTMENT OF TRANSPORTATIOJN-IEARING DOCKET 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

FEDERAL AVIATION ADMINISTRATION 

Complainant, 

vs. 

DELTA AIRLINES, INC. 

Respondent. 

Docket No. FAA-2014-0814 

FAA Case No. 2014S0670010 

Administrative Law Judge 

Richard C. Goodwin 

MOTION OF DELTA AIR LINES, INC., FOR LEAVE TO FILE REPLY 

Respondent Delta Air Lines, Inc., ("Delta") hereby requests leave to file a reply brief 

(attached hereto) in support of its Motion to Dismiss for Insufficiency, with prejudice, the 

Complaint filed against it by the Federal Aviation Administration ("FAA") in the abovecaptioned matter. 

Delta filed and served its motion, pursuant to Rules 49(a), 209(a), 218(£)(1), and 

218(f)(2)(ii) of the Ru1es of Practice, on November 13. 

On November 24, Delta received FAA's responsive brief. FAA's brief contains multiple 

mischaracterizations of Delta's arguments, as well as several misstatements of law. Although 

the Ru1es of Practice do not generally contemplate the filing of reply briefs, Your Honor does 

have discretion to permit such filings if they will clarify the record and points of law. Delta 

further notesthattheproposed replywouldnotsignificantly·add to·the volume ofbriefing,asit 

is only two-and-a-half pages long. 
For the foregoing reasons, Delta respectfully requests leave to file the attached reply brief 

in support of its 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 

Delta Air Lines, Inc. 

Department 981 

1030 Delta Boulevard 

Atlanta, Georgia 30354-1989 

Tel: (404) 714-5631 

Fax: (404) 677-2971 

Email: jonpeter.f.kellv@delta.com 
PROPOSED REPLY BRIEF 
BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

FEDERAL AVIATION ADMINISTRATION 

Complainant, 

vs. 

DELTA AIR LINES, INC. 

Respondent. 

Docket No. FAA-2014-0814 

FAA Case No. 2014S0670010 

Administrative Law Judge 

Richard C. Goodwin 

REPLY BRIEF IN SUPPORT OF MOTION TO DISMISS FOR INSUFFICIENCY OF 

DELTA AIR LINES, INC. 

By leave of the Court, Respondent Delta Air Lines, Inc., ("Delta") hereby replies in 

support of its Motion to 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 on the Inspector's Own Account, 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 the jumpseat 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 ·inatthe gate at l8:25ESTandthenwas escorted· to the flight 

deck "[r]oughly ten minutes later" (around 18:35 EST). Exhibit 1 to Delta's Motion, at 1. From 

approximately 18:35 EST to 19:30 EST, the inspector was in the cockpit. See id. (noting that 

Delta ground personnel advised of reservation 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 with the greatest authority, the pilot-in-command, wanted to take steps to keep the 

inspector in place. Whatever the inspector's motivations may have 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 of Proof Offer No Evidence in Support oflts 

Second Allegation of Denied Access. 

Delta has argued that the second allegation of denied access is contradicted by the 

statements of FAA's own witnesses. FAA argues three points in opposition, all of which are 

meritless. First, FAA asserts that Delta did not provide "a single citation of law" in support of its 

argument. FAA Response at 5. In point of fact, Delta cited FAA Order 2150.3B, Chapter 8, 

section 3, which requires FAA to base alleged violations on "items of proof consist[ing] of ... 

each piece of evidence gathered to prove the violations." Delta Motion at 5. Second, FAA 

claims that the "general notion" of a 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 of proof would be needed to undergird the 

allegations, Finally, FAA found Delta's argument ''puzzling" that the items of proof 

contradicted the allegations of paragraph 8 of the 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 of proof indicate 

that Inspector Gar berg never attempted to board any such flights, and instead "return[ ed] to 

2 
Minneapolis on the 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 of his supervisor are 

in agreement that the facts alleged in paragraph 8 of the Complaint never happened -- and Delta 

does not dispute those two statements. 

II. Conclusion 

The FAA has not disputed the fact (1) that its inspector volnntarily deplaned from the 

December 2 flight, or (2) that its own items of proof do not furnish any evidence of subsequent 

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 

Complaint be dismissed, with prejudice, for insufficiency. 

Dated: November 26,2014 

Respectfully submitted, 

3 

Delta Air Lines, Inc. 

Department 981 

1030 Delta Boulevard 

Atlanta, Georgia 30354-1989 

Tel: (404) 714-5631 

Fax: (404) 677-2971 

Email: jonpeter.f.kelly@delta.com 
CERTIFICATE OF SERVICE 

I hereby certify that, on this 26th day ofNovember 2014, I caused the foregoing Motion 

for Leave to File Reply and proposed Reply Brief of Delta Air Lines, Inc., to be served upon the 

following: 

Attention: Hearing Docket Clerk, AGC-430 

Federal Aviation Administration 

Suite 2Wl 000 

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 of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, D.C. 20590 

Tel.: (202) 366-5121 (Staff Assistant) 

Fax: (202) 366-7536 

(one copy by facsimile and one copy by UPS delivery) 

Christopher R. Stevenson, Esq. 

Office of the Regional Counsel, AS0-7 

Southern Region 

Federal Aviation Administration 

1701 Columbia Avenue 

College Park, Georgia 3033 7 

Tel.: ( 404) 305-5200 

Fax: (404) 305-5223 

(one copy by facsimile and one copy by UPS delivery)