In the matter of COMAIR, INC. Respondent 

# RECEIVED BEFORE THE 

## 1 8 201 1 • U.S. DEPARTMENT OF TRANSPORTATION 

## JUl "' OFFICEOFHEARINGS 

## HEARING DOCKET

WASHINGTON, D.C.

DocketNo. FAA-2014-0318 FAA Case No. 2011S0271015 Administrative Law Judge J.E. Sullivan

ANSWERIN OPPOSITION TO COMPLAINANT'S MOTION TO STRIKE AND MOTION TO DEEM ADMITTED, AND REPLY TO COMPLAINANT'S

RESPONSE IN OPPOSITION TO RESPONDENT'S MOTION TO DISMISS Comair, Inc. hereby answers Complainant's Motion to Strike and Motionto Deem Admitted, and to the extent necessary seeks leave to reply to Complainant's Response in Opposition to Respondent's Motionto Dismiss. Respondent properly filed and pleaded in good faith its response to the FAA's Complaint. The rules specifically permitthe filing ofa motion to dismiss in lieu offiling an answer to a complaint. See §§13.209(a) and 218(f)(2) ofthe Rules of Practice. Complainant's counsel may not like the rule, butthe right to file a motionto dismiss a complaint without first filing an answer is guaranteed by the regulations and no amount of rhetoric by FAA counsel can eliminate this due process safeguard built into Subpart G of 14 C.F.R. Part 13. Contrary to Complainant's assertion that the Motionto Dismiss was filed only for purposes ofdelay, such was not the case and the filing ofthe Motionto Dismiss was proper in all respects. The Respondent ceased operating as an air carrier in September 2012 and submitted its Air Carrier Certificate for surrender to the FAA. The FAA accepted the surrendered certificate and operations specifications effective December 27, 2012. See Exhibits 1 and 2 accompanying Respondent's Motionto Dismiss. These facts are undisputed. So the question is what are the

- 1 -legal consequences ofthe FAA pursuing enforcement action against an entity after that entity voluntarily turned back its FAA-issued operating authority and which the agency accepted without comment or reservation? The FAA's enforcementprogram states that enforcement action is taken to prevent and deter future violations ofthe Federal Aviation Regulations. 

### See FAA Order 2150.3B, Chapter 2, 'i[3 (f). As the FAA well knows, neither ofthese enforcementpolicy objectives canbe met in the

case where the FAA is pursuing enforcement action, be it civil penalty or certificate action, against an entity thatno longer possesses an air carrier certificate. The conduct ofComair complained ofby the FAA, assuming, 

### arguendo, it constituted action inconsistent withthe regulations, cannot be repeated by the company. In this context, there is no substantive difference betweenthe two versions oflegal enforcement action-certificate action and civil penalty action-as it relates to the application ofthe policy guiding the FAA's enforcement program. Complainant's Oppositionto the Motion to Dismiss ignores the implications of certificate surrender in the context ofthis case and makes the unsupportable argument that dismissal ofthis matter is not warranted even though the FAA accepted the Respondent's certificate for cancellation without comment or reservation. It's the substance ofthe FAA's acceptance ofthe Comair certificate surrender that counts, not the form ofthe enforcement action pending at the time ofsurrender. No FAA enforcement policy objective as articulated in Order 2150.3B can be furthered bythe continuation ofthis matter, thereby fully warranting the filing ofa motionto dismiss the complaint as was done by Respondent inthis case. Complainant next argues that bypursuing a settlement in these two unrelated matters, Respondent has conceded the FAA is notrequired to terminate enforcement efforts whenthe certificate holder surrenders its FAA credentials. Eventhough Respondentbelieves that the



### - 2-FAA is wrong to pursue substantial civil penalty action against itunder the circumstances, Respondent is not acting inconsistentlybypursuing a settlementwith the FAA at the same time. In this regard, Complainant simply fails to accept, as an everyday fact oflife in litigation, that parties will vigorously deny liability and at the same time seek out settlement for any number of practical and otherreasons. Order 2150.3B recognizes this when in Chapter 6, §2 it states in the context ofa discussion ofprosecutorial discretion: Legal counsel uses sound prosecutorialjudgment to make decisions that further the agency's safety mission and the public interest. After initiating a case, legal counsel in consultation withthe concernedprogram office whenpracticable, may settle cases, when in theirjudgment, the settlement is warranted. Presumably the FAA would not initiate a case and seek a remedy it did notbelieve was fully warranted under the circumstances, and yet, the agency more oftenthan not settles certificate action and civil penalty cases for less, sometimes far less, in terms ofthe length ofthe suspension period orthe amount ofthe civil penalty than that originally soughtbythe FAA. Does this meanthe FAA did not bring the case in good faith inthe first instance? Ofcourse not. Beyondthe FAA'srecognition ofthe use ofsettlements to further its aims, and consistent with the FAA objective ofensuring fairness in carrying out its enforcement responsibilities (See, Order 2150.3B, Chapter 2, § 3(g)) it is worth noting that any party's efforts at settlement are generally not admissible as evidence to prove the validity ofthe underlying claim. See Rule 408 ofthe Federal Rules ofEvidence. Here Complainant seeks to suggestthat Respondent's efforts at settlement are inconsistent with the Motion to Dismiss and should be taken into account by Your Honor in ruling onthe Motion. In fact, the tribunal should take no account of Respondent's settlement efforts consistent with Rule 408. There is nothing inconsistent with filing the Motion to Dismiss at the same time Respondent is seeking a settlement. Andfor 

### this

reason Complainant's citationto §13.218(£)(4) (which intum is based onRule 12(f) ofthe



### - 3 -F.R.C.P.) and reliance upon itto support its motion to strike is faulty both on substantive grounds, as discussed above, and procedurally because Complainant's misuse ofRespondent's settlement efforts to support its motion to strike is an inappropriate use ofsuch information. Finally, Complainant argues that even without Your Honor ruling onthe merits ofthe pending Motionto Dismiss, the Motion should be disregarded and the Complaint thereby deemed admitted. Apart from the fact that Complainanthas cited to no precedent for its farreaching form ofrelief, there is no question but that the Rules ofPractice require, and as a matter offundamental due process, Your Honorto rule onthe pending Motionto Dismiss and, consistent with the Subpart G Rules ofPractice, either grant or deny it. Ifthe Motion is granted, the Complaint would be dismissed, and the Complainant could then appeal the Law Judge's ruling ifit chooses to do so. Ifthe Motion is denied, Respondent, by rule, is required to then answer the complaint withinthe prescribed 10 days ofthe date of service ofthe ruling. Complainant requests through its Motionto Strike and its Motion to Deem Admittedthe procedurally flawed scenario where Respondent would be unfairly and improperly deprived ofthe right to file an answer to the complaint, should it not be dismissed. Granting Complainant's request would constitute a fundamental breach ofthe due process rights accorded all respondents and built into the FAA'sprocedural regulations andthat otherwise are protected by the Constitution. Accordingly, the Complainant's argument thatRespondent's rights under Subpart G should be circumvented 

### inthis manner must be rejected outright by Your Honor.



### - 4-WHEREFORE, for the reasons set forth above, Respondent Comair, Inc. respectfully requests leave, to the extent necessary, to file this Reply to the Opposition ofComplainantto Respondent's Motionto Dismiss andrequests the Complainant's motionto strike and motionto deem admitted be denied.

Dated: July 17,2014 Respectfully submitted, SILVERBERG, GOLDMAN & BIKOFF, L.L.P. Attorneys for

# ::Lrfl~~ Robert P. Silverberg, Esq. 1101 30'h Street, N.W. Suite 120

- 5 - Washington, D.C. 20007 Tel: (202) 944-3304 Fax: (202) 944-3306 Email: rsilverberg@sgbdc.comCERTIFICATE OF SERVICE I hereby certify that onthis 17'h day ofJuly 2014, I caused the foregoing Answer in Opposition to Complainant's Motion to Strike and Motion to DeemAdmitted, and Reply to Complainant's Response in Oppositionto Respondent's Motionto Dismissto be servedupon the following: Federal Aviation Administration 600 Independence Avenue, S.W. Wilbur Wright Building Suite 2WIOOO Washington, D.C. 20591 (Attention: Hearing Docket Clerk, AGC-430) Tel: (202) 385-8227 (original and one copy by FedEx overnight delivery) The Hon. J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, D.C. 20590 Tel: (202) 366-2132 Fax: (202) 366-7536 (one copy by facsimile and First Class Mail) Christopher R. Stevenson, Attorney Office ofthe Regional Counsel, ASO-7 Southern Region Federal Aviation Administration 1701 Columbia Avenue College Park, GA 30337 Tel: (404) 305-5200 Fax: (404) 305-5223 (one copy by facsimile and First Class Mail)