In The Matter Of:
COMAIR, INC. Respondent 

## SERVED: July 30, 2014 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS WASHINGTON, DC ) ) ) ) ) ) )

. ) DocketNos. FAA-2014-0318 FAA-2014-0319 CaseNos. 2011S0271013 2011S0271015



### ORDERDENYING RESPONDENT'S AND FAA'S MOTIONS •• ,._; ··-. =

-.. . : ' _i

On June 2, 2014, the FAA filed two Complaints against the Respondent, Comair, Inc., under DocketNos. FAA-2014-0318 and FAA-2014-0319. 1The two Complaints charge Comair with multiple violations ofthe federal aviationregulations, and request a total proposed civil penalty in the amount of$487,500. On July 2, 2014, in lieu offiling an answer, the Respondent filed a Motion to Dismiss of Comair, Inc. [sic] ("Motionto Dismiss"). On July 11,2014,the FAA filed one document containingtwo motions and a response. This document was entitledMotionto Strike, Motionto Deem Allegations Admitted, and Response in Opposition to Motionto Dismiss. The document in its entirety will be referred to as the FAA's "Response." The individual Motions in this FAA Response will be referenced by short title (e.g., "Motion to Strike" and "Motionto Deem"). On July 17, 2014, the Respondent filed one document containing one answer and a reply. This document was entitled Answer In Oppositionto Complainant's Motion to Strike and Motion to DeemAdmitted, and Reply to Complainant's Response In OppositionTo Respondent's Motionto Dismiss. The document in its entirety will be referred as the Respondent's Reply. The individual

1There has**be~n** no order ofconsolidation ofthe two actions. Nevertheless, the actions appear to be linked for these motions, since the parties have filed identical motions in both case files. As a result, the Order issued here is identical for each case. Therefore, both docket numbers have been listed on this Order, but two separate Orders- one for each separate file- have been issued.Answer in Opposition to the FAA Motions in this FAA Response will be referencedby shorttitle (e.g., "Opposition"). On July 23,2014, the FAA filed its Reply In Support ofMotion to Strike and Motion to Deem Admitted ("FAA Replies"). Inreviewing theparties' Motions, Responses, Opposition, and Replies, all evidence, arguments and legal authority have been read and considered. However, only certain highlights are addressed in this Order. 

### A. General Factual Summary The Respondent alleged that Comair, Inc. ceased all revenue flight operations on September 29, 2012. However, 

### itmaintained its Air Carrier Certificate in orderto continue operating and allow itselftime to conduct an "orderly transfer ofaircraft" to leaseholders and other entities. (Mot. Dismiss, Exh. 1). On December 13, 2011 the FAA served the Respondent with two Notices of Proposed Civil Penalty ("NPCP"). (Mot. Dismiss 2.) Four (4) days later, on December 17, 2012, the Respondent contactedthe FAA and voluntarily surrendered its Air Carrier Certificate. (Mot. Dismiss, Exh. 1.) That same day, December 17, 2012, the FAA served the Respondent with notice thatthe "effective date" ofits Certificate surrender was December 27, 2012. (Id. at Exh. 2.) On December 28, 2012, the day immediately following the Respondent's effective date ofCertificate surrender, the Respondent was merged into Delta Airlines, Inc. (Mot. Dismiss, 1 fn. 1.) Approximately five months later, on May 17,2014,the FAA served the Respondent with two FinalNotices ofProposed Civil Penalty.- (Complaints, 1.) Four (4) days later, the Respondent served the FAA with Requestsfor Hearing (Requests for Hearing, 1.) OnJune 2, 2014, the FAA filed the two Complaints at issue here. The Respondent's Answer was due onorbefore July 3, 2014. On June 27,2014, the FAA declined to agree to an extension ofthe July 3, 2014 deadline. On July 2, 2014, one day before the filing deadline, the Respondent filed a Motion to Dismiss. 

### B. Respondent's Motion to Dismiss 1. BriefSummary ofParties' Arguments The Respondent assertedthat once the FAA accepted its Air Carrier Certificate surrender, the FAA was estopped from pursuing a civil penalty action, because the FAA had not "reserve[d] Page 2 of 11the rightto pursue this enforcement action". (Mot. Dismiss 2.) As legal grounds supporting its Motion to Dismiss, the Respondent asserted thatthe language ofFAAOrder 2150.3B was controlling. "The FAA is barredby its own internal rules and policies from prosecuting the Complaint filed against Comair in this matter" because the FAA had accepted the Respondent's voluntary surrender ofits Air Carrier Certificate. (Mot. Dismiss 2.) As part ofits Response, the FAA asserted that FAA Order 2150.3B was not relevant to the facts in this case, becausethe Respondent's certificate surrender had not involved a certificate action.2 (Response 2.) In addition, the language ofFAA Order 2150.3B was guidance for FAA employees only, and did not prohibit pursuit ofa civil penalty action. (Response 2.) 2. Applicable Section ofFAA Order 2150.3B The overall purpose ofFAA Order 2150.3B, 5-14,**~10(b)** (May 1, 2012) is to provide "guidelines"to FAA employees for "handling a certificate holder's voluntary surrender ofa certificate." FAA Order 2150.3B, 5-14,**~10(a)** (May1, 2012). As part ofthese guidelines, FAA employees are directed to be "alert" for indications a certificate holder is attempting to "avoid certificate action."Id. at**~10(b).** The FAA employees are also directed to "refusethe voluntary surrender ofa certificate" ifthere is an investigative or enforcement action pending. (I d.) Consequently, before determining whether to accept a certificate holder's voluntary surrender ofa certificate, FAA investigative personnel review actions in the EIS and other databases showing investigative or enforcement activity. Ifthe EIS or ariy other database reveals that the certificate holder is the subject ofan enforcement investigation or enforcement action, FAA investigative personnel refuse the certificate holder's attemptto voluntarily surrender a certificate and continue with an investigation and recommend enforcement action, ifappropriate. FAA Order 2150.3B, 5-14,**~10(b)** (May 1, 2012). 3. Discussion and Analysis In essence, the Respondent argues that FAA Order 2150.3B, which is the FAA's Compliance and Enforcement Program, covers all enforcement actions, notjust certificate actions.

2 The word "certificate" is typically used as a short-hand reference to an air carrier's certificate ofpublic convenience and necessity, which is issued by the U.S. Department ofTransportation ("DOT") pursuant to 49 U.S.C. §41101. An air carrier's "certificate" grants the air carrier economic authority to conduct air transportation. An air carrier's failure to comply with regulations may result in a "certificate action" by the DOT that might limit, suspend, or revoke the air carrier's authority to conduct air transportation. Page 3 of 11(Mot. Dismiss, 1.) According to the Respondent, the language ofFAA Order 2150.3B, 5-14,**~lO(b)** is broad-based, and serves to estop the FAA from bringing or pursuing any civil penalty actions against any air carrier after the FAA accepts the surrender ofan air carrier's Certificate. In this case, it would meanthatthe FAA's service ofthe two December 13, 2011 NPCPs onthe Respondentwouldbe "trumped" or rendered moot by the FAA's subsequent acceptance, effective December27, 2011, ofthe Respondent's voluntary surrender ofits certificate. In cases as a whole, itmeans that an air carrier could potentially avoid enforcement action, ifan FAA employee fails to follow the guidelines in FAA Order 2150.3B, 5-14,**~10(b),** or in the alternative, fails to exercise sufficient diligence in following internal agency guidelines. Even ifit is assumed that FAA Order 2150.3B, 5-14,**~10(b)** covers all FAA enforcement actions (instead of justcertificate actions, as asserted by the FAA), there is no language in Chapter 5, paragraph lO(b) thatprohibits the FAA from initiating or pursuing civil penalties after an air carrier voluntarily surrenders its certificate. In fact, the FAA Administratorhas heldthat "the surrender ofthe air carrier operating certificate does not obviate the need for the imposition ofa substantial civil penalty with punitive and deterrent effect where there is a finding ofregulatory violations." In re Folsom'sAirService, Inc., FAA-2004-17277, FAA OrderNo. 2008-11 at 19-20 (Nov. 6, 2008). See In re Lifelite, FAA OrderNo. 200-28 (Dec. 21, 2000) (an air carrier's surrender ofits operating certificate does not shield it from a civil penalty action). Part oftherationale for the Administrator's position is that there is nothing in the regulations that precludes an air carrier, who voluntarily surrenders its operating certificate, from applying for a new operating certificate. The Administrator seeks to estop such air carriers from trying to avoid civil penalties for past violations while continuingto operate in the future. See Folsom's, FAA OrderNo. 2008-11 at 20. The Respondent argued for a reasonedinterpretation ofFAA Order 2150.3B, but did not provide any further authority in support ofits position. While the Respondent's arguments regarding the scope and application ofthe FAA's internal guidelines are certainly creative and zealously made, they are not persuasive.

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### C. FAA's Motion to Strike 1. BriefSummary ofParties' Arguments In its Response, the FAAmovedto strike the Respondent's Motionto Dismiss on several grounds. The FAA asserted that "[n]o reasonable person, muchless a reasonable attorney, could concludethatParagraph 10(b) ofChapter 5 ofFAA Order 2150.3B has the meaning Respondent asserts." (Response, 3.) The FAA also asserted thatthe Motionto Dismiss was a "frivolous" motion thathadbeen "filedfor purposes ofdelay". (Response 4.) As support for this argument, the FAA demonstrated that the Motion to Dismiss was filed shortly after the FAAhad declined the Respondent's request for a waiver ofthe deadline to file an answer. 

### (!d. at Ex. A.) The Respondent did not dispute this evidentiary proffer. However, in its Opposition and Reply, the Respondent asserted thatthe FAA's Motionto Strike should be denied in its entirety, because the Respondent's Motionto Dismiss "wasproperin all respects." (Reply, 1.) 2. Legal Authority Citedbythe Parties The FAAcited 14 C.F.R. § 13.218(f)(4) as authority for its Motionto Strikethe Respondent's Motion to Dismiss. Section 13.218(f)(4) provides in part: Anyparty may make a motion to strike any insufficient allegation or defense, or any redundant, immaterial, or irrelevant matter in apleading. 14 C.F.R. § 13.218(f)(4) (emphasis added). Section 13.202 defines a pleading as "acomplaint, an answer, and any amendment ofthese documents permitted underthis subpart." 14 C.F.R. § 13.202. In its Opposition and Reply, the Respondent argued that its Motion to Dismiss was properly filed under 14 C.F.R. §§ 13.209(a) and 13.218(f)(2)(ii), which specifically allow arespondent to file a motion to dismiss in lieu offiling an answer (i.e., a defensive pleading). 3. Actual Scope of 14 C.F.R. § l3.218(f)(4) As identified above, the FAA cited 14 C.P.R.§ 13.218(f)(4) as authority for its Motionto Strike, butthe language of 14 C.F.R. § 13.218(f)(4) is specificto pleadings. Itis clearthatthe Respondent's Motion to Dismiss is not a defense pleading. Instead, it is a motion filed in lieu ofa

Page 5 of 11defense pleading. Thus, 14 C.F.R. § 13.218(±)(4) does not appear on its face to be the proper support for the FAA's Motion to Strike. To help determine the scope ofreliefoffered by 14 C.F.R. 

### § 13.218(±)(4), the Federal Rules ofCivil Procedure maybe utilized as helpful guidance. See In re Boris Kirola, FAA OrderNo. 94- 39, 1994 WL 899655 at *3 (Dec. 9, 1994). The language of14 C.F.R. § 13.218(±)(4) appears to generally follow the language in Federal Rule ofCivil Procedure 12(f), which provides in part: The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. Fed. R. Civ. Proc. 12(f). Like the language of 14 C.F.R. § 13.218(±)(4), motions to strike pursuantto Fed. R. Civ. Proc. 12(f) are specifically limited to the pleadings. See, e.g., Sidney-Vinstein v. A. H. Robins Co., 697 F.2d. 880, 885 (9th Cir. 1983); UnitedStates v. Crisp, 190 F.R.D. 546, 550-51 (E.D. Cal. Nov. 3, 1999). Striking a pleading is the ''primaryprocedure for objecting to an insufficient defense," and was "designedto reinforce the requirement thatpleadings be "simple, concise, and direct." 5C Fed. Prac. & Proc. Civ. §1380 (3d ed.) Itis the equivalent ofa Rule 12(b)(6) motionto dismiss for legal insufficiency. Steven Baicker-McKee, Federal Civil Rules Handbook 487 (Test for Striking Defenses) (2013). Thus, extrinsic material outside ofapleading, such as "motions, affidavits, briefs, and other documents" is not subjectto Rule 12(f). 5C Fed. Prac. & Proc. Civ. §1380 (3d ed.) Even when a Rule 12(f) motion is properly raised against apleading, striking such a pleading is considered a "drastic remedy" which should be rarely granted. 35A C.J.S. Federal Civil Procedure 

### § 471 (2014). See also 61A Am.Jur.2d Pleading §446 (May 2014). However, some federal courts have expanded the use ofRule 12(f) to strike pre-trial affidavits and other motion materials, because ofthe "legal insufficiency" ofthe materials. 5C Fed. Prac. & Proc. Civ. §1380 (3d ed.) In essence, these courts have expanded the use ofRule 12(f), in partbecause the review ofmaterial under Rule 12(f) is the same as in a summaryjudgmentmotion, i.e., "in a light most favorable to the non-moving party." Brown v. Hain Celestial Group, Inc. 913 F.Supp.2d 881, 888 (N.D. Cal. 2012). This expansive use ofRule 12(f) remains controversial, however, and has notbeenwidely adopted. Martin v. Town ofWestport, 558 F.Supp. 2d 228, 230 (D.Conn. 2008)(Rule 12(f) is limitedto pleadings). Instead, courts have recommendedthat a motion to strike a pre-hearing motion or other extrinsic material be considered as either an Page 6 of 11oppositionto the pre-hearing motion, Bondv. ATSI/JacksonvilleJob Corps Center, 811 F. Supp. 2d 417, 421 (D.D.C. 2011) (amotion to strike is an improper vehicle for challenging a motion), or as a motion for summaryjudgment, Steven Baicker-McKee, Federal CivilRulesHandbook493 (Extrinsic Materials) (2013). 4. Other Applicable Legal Authority -14 C.P.R. § 13.207(b) and (c) Based onthe substance ofthe FAA's argument and its reference to Federal Rule ofCivil Procedure 11(b)(1) (Response, 3), the FAA'sMotionto Strike is better taken under 14 C.F.R. 

### § 13.207(b), (c) whichprovides inrelevant part: (b) Effect of signinga document. By signing a document, the attorney of record

... certifies thatthe attorney
... has read the document and, based on reasonable inquiry and to the best ofthat person'sknowledge, information, and belief, the document is- 

## * * * (2) Warrantedby existing law orthat a good faith argument exists for extension, modification, orreversal ofexisting law; and (3) Notunreasonable orunduly burdensome or expensive

... not madeto cause unnecessary delay

..., or for any other improperpurpose. · (c) Sanctions. Ifthe attorney ofrecord

... signs a document in violation ofthis section, the administrative lawjudge

... shall: (1) Strike the pleading signed in violation ofthis section; 

## * * * (3) Denythe motion or request signed in violation ofthis section; (4) Exclude the document signed in violation ofthis section from the record; 

## * * * 14 C.F.R. § 13.207(b) and (c). 5. Discussion and Analysis a) Motion to Strike Pursuant to 14 C.F.R. § 13.218(/)(4) As noted earlier, the Respondent's Motion to Dismiss is not a defensive pleading. Rather, it is a pre-hearingmotion filed in lieu ofdefense pleading, pursuantto 14 C.F.R. 

### § § § 13.209(a) and 13.218(f)(2)(ii). The court is limitedto striking onlypleadings under 14 C.F.R. § 13.218(±)(4), and such strike action against a party'spleadings shouldbe granted sparingly. Utilizingthe caselaw and guidance found under Rule 12(f), FAA's Motion to Strike is best considered as an "Opposition" to
Page 7 of 11the Respondent's pre-hearing Motion to Dismiss. For ease in review, however, the FAA's Opposition will continueto be called a Motion to Strike. b) Motion to Strike Pursuant to14 C.F.R. § 13.207(c) In its Motionto Strike, the FAA asserted that the Respondent's Motion to Dismiss was both "frivolous" (i.e., "unreasonable") and filed solely to cause unnecessary delay. The FAArequested sanctions providedunder 14 C.F.R. § 13.207(c)(3) and (4), i.e., denial ofthe Motionto Dismiss, and its exclusionfrom the record. The FAAAdministrator has previously recognized the similarity between 14 C.F.R. 

### § 13.207 and Fed. R. Civ. P. ll(b)(l), which provides similar sanctions for material filed without merit or to cause unnecessary delay. In re Boris Kirola, FAA OrderNo. 94-39, 1994 WL 899655 at *3 (Dec. 9, 1994). Courts have provided various standards ofreview for alleged violations ofFed. R. Civ. P. 11(b)(l), such as, whether the legal positionhas "no chance ofsuccess," Fishoffv. Coty, Inc., 634 R.3d 647, 654 (2d Cir. 2011) (citingMorley v. Ciba-Geigy Corp., 66 F.3d 21,25 (2d Cir. 1995)), whether a reasonable attorney in like circumstances could nothave believed his actions
were legallyjustified, Burns v. George Basilikas Trust Trust, 599 F.3d 673, 677 (D.C. Cir. 2010) (citingIn re Sargent, 136 F.3d 3.49, 352 (4th Cir. 1998)), and whetherthe frivolous nature ofthe claim is unequivocal, Carter v. ALKHoldings, Inc., 605 F.3d 1319, 1324-25 (Fed. Cir. 201 0). Baicker-McKee, supra, at 401-02. See also, Steven Baicker-McKee, Federal Civil Rules Handbook 401-402 (Standard ofCulpability) (2013)(Rule 11(b)(1) intendedto regulate bad faith filings-such
as "actions 'akinto contempt"'). Thus, to address the FAA'srequests for sanctions under Section 13.207(c), a review ofthe merits and timing ofthe Respondent's Motion to Dismiss is needed. c) Merits of the Respondent's Motion to Dismiss As noted earlierherein, this court does not find the Respondent's Motion to Dismiss ultimately persuasive. That does not mean, however, that the motion was unreasonable, orthat it did not have merit. It is well-established, inthe history ofour adversarial system, that even when an

Page 8 of 11attorney vigorously advocates3 for a client, not all the motions or new legal theories raisedwill be successful. To sanction a party for raising new issues would create an untenable "chilling" effect in the adversarial system. See, e.g., Ario v. Underwrit{ngMembers ofSyndicate 53 atLloydsfor 1998 Year of Account, 618 F.3d 277,297 (3d Circ. 2010)(sanctions should be applied only in "exceptional circumstances" where a motion is "patently unmeritorious.") Clearly the Administratorhas generally expressed the need to pursue civil penalty actions against air carriers who have surrendered their operating certificate. But there has been no decision directly addressing the scope or applicability ofthe language contained in FAA Order 2150.3B, 5- 14,**~10(b).** The guideline language states that ifthe FAA seeks to "continue" an enforcement action, then the air carrier'sproffer ofvoluntary certificate surrender shouldbe "refuse[d]." (!d.) The guideline language is broadly written, and could easily be perceived by the public to encompass all "enforcementinvestigation or enforcement action." FAA Order 2150.3B, 5-14,**~10(b).** This court does not agree withthe FAA's assertionthatthe Respondent's Motionto Dismiss
was "frivolous." A frivolous motion is one without basis in fact or law. A "frivolous" motion should be firmly distinguished from a motion that raises a new issue or defense. Indeed, an attorney has a professional duty to creatively issue-spot the facts and law in each case. 7 Am. Jur. 2dAttorneys at Law§ 139; Model Rules ofProfl Conduct R. 1.1. Good advocacy often requires persistent examination ofrules and caselaw, as well as the proffer ofnovel legal arguments. Rule 11 sanctions are reserved for correcting litigation abuse and should notbe "appliedto adventuresome, though responsible, lawyering which advocates creative legal theories." Steven Baicker-McKee, Id. at 402, citingMaryAnnPensiero, Inc. v. Lingle, 847 F.2d 90, 94 (3d Cir. 1988). In this case, the language ofFAA Order 2150.38, 5-14,**~10(b)** indicates a potential broad scope ofinclusion, with a course ofactionthat "should" be taken bythe FAA

- indicating a potential finality ifan air carrier's certificate surrender is accepted (and not**refus~d).** Inthe absence ofany bright line rule, definitive case, or an express statement in FAA Order 2150.3B, 5-14,**~10(b)**

3 Vigorous advocacy may occur during all phases oflitigation. This means that an advocate may engage in settlement discussions while at the same time preparing and advancing legal positions that may narrow or resolve issues in preparation for trial. Page 9 of 11regarding other future enforcement actions, it was well within good advocacy for the Respondentto have raised this issue in its Motionto Dismiss. 

### d) FAA 'sAssertion of Purposeful Delay. Itwas undisputedthat the Respondent filed its Motionto Dismiss after the FAA declined to agreeto an extension oftime for the Respondent to file an Answer.4 The FAA characterizedthis litigation choice as a deliberate attempt to cause unnecessary delay. The Respondent's deadline for filing an Answer was July 3, 2014. (Response, Exh. A at 1.) On Friday, June 27,2014, the FAA told the Respondent it was declining to agree to an extension of the July 3, 2014 deadline. (!d.) The FAA was perfectly free to exercise that choice on its own behalf. The Respondentthenhad several choices. Itcould file an Answer on or before July 3, 2014, seek an extension oftime overthe FAA's objectionpursuant to 14 C.P.R. §13.213(b), or file a Motionto Dismiss pursuantto 14 C.P.R.§§ 13.209(a) and 13.218(f)(2)(ii). The Respondent choseto file a Motionto Dismiss on July 2, 2014 pursuantto 14 C.P.R. § 13.209(a) and 14 C.P.R.§ 13.218(£). Itwasfree to exercise that choice on its ownbehalf. Based on the facts in this case, there has been no showing of"unnecessary delay" pursuant to 14 C.P.R. § 13.207(b). The Respondent's Motionto Dismiss was a legal option authorized by the regulations,
was properly filed by the Respondent within specified time limits, and raised a creative legal theory thatwas withinthe scope ofgood advocacy. D. 

### FAA's Motion to Deem Allegations Admitted The FAA'sMotion to Deem was contingentupon its Motion to Strike being granted. (FAA Response, 4; FAA Reply, 4-5.) Pursuant to 14 C.P.R.§ 13.207(c), the FAA sought to excludethe Respondent's Motionto Dismiss from the record. Ifsuch exclusion were granted, then the Respondent's failure to file an Answer on orbefore July 3, 2014 would have placedthe Respondent in default status inthe proceeding, pursuantto 14 C.P.R. § 13.209(£). Because the Motion to Strike is denied, the Motionto Deemmust also be denied.

4 The parties refer to this agreed extension as a "waiver oftime." (Response, Exh. A at 1.) Pursuant to 14 C.F.R. §13.213(a), the parties may "agreeto extend for a reasonable period the time for filing a document under this subpart." Such agreements should be submitted in the form ofa draft order for the Judge's approval. 14 C.F.R. §13.213(a). Absent an agreement, the movant may file a written motion for extension oftime, "not later than 7 days before the document is due unless good cause for the late filing is shown." 14 C.F.R. §13.213(b). Page 10 of 11

### E. Conclusion and Order Pursuantto 14 C.F.R. §§ 13.205(a)(6), (8), and 13.207, and after reviewing all relevant caselaw, regulations, statutory authority, and being fully advised;

IT IS HEREBY ORDERED:

1. The Respondent's Motion to Dismiss is denied. 2. The FAA's Motionto Strike is denied. 3. The FAA's Motionto Deem Allegations Admitted is denied. 4. Pursuantto 14 C.F.R. § 13.218(f)(2)(ii), the Respondent shall file an answerto the Complaint and shall serve a copy ofthe answer not laterthan 10 days after the date of receipt ofthis Order.

ivan U.S. A mmistrative Law Judge Attachment: Service List

Page 11 of 11DocketNo. FAA-2014-0319 (Civil Penalty Action) SERVICE LIST- BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2Wl0005

Mr. Christopher R. Stevenson Complainant's Counsel Office ofthe Regional Counsel, AS0-7 ONE.COPY

Federal Aviation Administration, Southern Region 1701 ColumbiaAvenue College Park, GA 30337 TEL: 404-305-5200 FAX: 404-305-5223 Mr. Robert P. Silverberg Respondent's Counsel 1101 30th Street, N.W. Suite 120 Washington, DC 20007 Mr. Ryan Gumm, VP ofFlight Operations Comair, Inc., Respondent 82 ComairBlvd. Erlanger, KY41018 Judge J.E. Sullivan U.S. Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-6941 FAX: 202-366-7536 Mr. James McClain DeltaAir Lines, Inc. P.O. Box 20706 Dept. 982 Atlanta, GA 30320

5 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.