u.s. DEPARTMENT OF TRANSPORT ATloiD EC E I v ED 

OFFICE OF HEARINGS n 

FEDERAL AVIATION ADMINISTRATION NOV 2 5 2014 

HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION, 

Complainant, 

vs. 

DELTA AIRLINES, INC., 

Respondent. 

Docket No. FAA-2014-0814 

FAA Case No. 2014S0670010 

Judge Goodwin 

RESPONSE IN OPPOSITION TO MOTION TO DISMISS 

On November 13, 2014, Respondent filed a motion to dismiss the complaint for 

insufficiency. Respondent asks the Judge to ignore the actions of its personnel who, after an hour 

of attempting to "resolve" a situation created by their inability to use Respondent's own systems, 

instructed an FAA Inspector to deplane from a flight that had just been cleared to pull back from 

the gate. Respondent argues that because the Inspector "voluntarily" deplaned, rather than stay in 

the cockpit and indefinitely delay an international flight while more of Respondent's personnel 

attempted to "resolve" the situation, it did not infringe on the Inspector's almost unlimited access 

to the cockpit that is guaranteed by the Federal Aviation Regulations. Respondent's motion is 

without merit, and should be denied. 

- ----- ---- ------------ ---Facts--

On December 2, 2013, FAA Inspector Peter Garberg properly presented his FAA l!OA 

credential to Respondent's ground agents and flight crew for the purposes of conducting an 

inspection on Delta Flight 402 from John F. Kennedy International Airport, New York (JKF), to 

Heathrow Airport, London, United Kingdom (LHR). Complaint ~~ 3-4; Motion to Dismiss 

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Exhibits I, 3. At approximately 18:25, Inspector Garberg was informed by Respondent's gate 

agent that she could not find Inspector Gar berg in Respondent's reservation system. Motion to 

Dismiss Exhibit 1. After several delays, Inspector Garberg was initially escorted onto the flight 

deck. Complaint '1J5; Motion to Dismiss Exhibits 1, 3. At approximately 18:55, Respondent's 

gate agent entered the aircraft and again questioned Inspector Garberg about his presence on the 

aircraft. Motion to Dismiss Exhibit 1. However, immediately before the flight was cleared to 

depart (at approximately 19:30), three more of Respondent's employees (including a supervisor) 

boarded the aircraft and instructed Inspector Garberg that he was not permitted on the flight. 

Complaint '1J6; Motion to Dismiss Exhibits 1, 3. The pilot of the aircraft indicated that he was 

willing to help resolve the situation, delaying the flight for an unknown period of time. 

Complaint '1J7; Motion to Dismiss Exhibit 1. Consistent with FAA policy, Inspector Garberg 

complied with the instructions to deplane, rather than remain on the aircraft and delay the flight 

for an indeterminate amount of time. Complaint '1J7; Motion to Dismiss Exhibits 1, 3; Exhibit A 

at 1 (praising how "Inspector Garberg followed the FAA's near flawless culture of partnering 

with the airlines ensuring that inspection duties do not interfere with one of the largest success 

divers of our business, on-time performance"). 

Argument 

Respondent argues that, based on the above facts, there was no violation of 14 C.P.R. 

§ 121.548, because Inspector Garberg deplaned as instructed by Respondent's personnel, rather 

than remaining on the aircraft and indefinitely delaying the flight while one of the flight crew 

attempted to "resolve" the matter. See Motion to Dismiss at 4. Respondent's argument is without 

merit. 

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"Whenever, in performing the duties of conducting an inspection, an inspector of the 

Federal Aviation Administration presents form FAA II OA, "Aviation Safety Inspector's 

Credential," to the pilot in command of an aircraft operated by a certificate holder, the inspector 

must be given free and uninterrupted access to the pilot's compartment of that aircraft." 14 

C.F.R. § 121.548. Here, there is no dispute that Inspector Garberg was an inspector of the FAA, 

that he was performing the duties of conducting an inspection, or that he presented his II OA to 

the pilot-in-command of the aircraft in question. 

As explicitly stated in the Federal Aviation Regulations, an FAA inspector is entitled to 

"free and uninterrupted access" to the pilot's compartment of the aircraft he is to inspect. 14 

C.F.R. § 121.548. This regulation provides FAA inspectors with almost unlimited access to the 

cockpit. An FAA inspector who has been ordered by an air carrier's personnel to deplane is not 

being provided with "free and uninterrupted access" to the cockpit. Nor does this become "free 

and uninterrupted access" because one of Respondent's personnel offered to "resolve" in an 

unspecified fashion 1 

a problem created by another four of Respondent's personnel, while 

indefinitely delaying a flight. Indeed, even if the flight crew's efforts to "resolve" the situation 

had immediately resulted in Respondent permitting the Inspector to remain on the flight, the 

aircraft could not have departed at that time, because of the security requirements for 

international flights. See Exhibit A at I (noting that, had Inspector Garberg not deplaned, it 

would have caused an "inevitable delay due to the APIS and WDR paperwork issues"). 

Respondent's position in this litigation is that, in order for an air carrier to have violated 

§ 121.548, the FAA inspector must agree to wait indefinitely (along with a plane full of 

passengers) while the air carrier's personnel argue about whether or not the Inspector is 

1 Respondent's personnel had already been attempting to "resolve" the situation for over an hour at the point in time 

when this exchange occurred. See Motion to Dismiss Exhibit I (noting that Inspector Garberg first presented his 

credentials to Respondent's gate agent at 18:25 and that Inspector Garberg was instructed to deplane after 19:30). 

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permitted on the flight. This position is contrary to the explicit language of the regulation, for 

this "access" to the cockpit is certainly not "free and uninterrupted." Contrary to Respondent's 

position, FAA inspectors are not required to force the delay of commercial flights and engage in 

lengthy arguments with air carrier personnel about whether the inspector should be permitted on 

a flight before the air carrier can be found to have violated § 121.548. The Administrator has 

held that an employer is responsible for the acts or omissions of its employees acting in the scope 

of their employment. In the Matter of Trans World Airlines, FAA Order No. 98-11, at *7 (June 

II, 1998) 1998 WL 348026; See e.g, In the Matter of Westair Commuter Airlines, Inc., FAA 

Order No. 93-18 at 7, 1993 FAA LEXIS 205, at *7 (June 10, 1993); In the Matter ofUSAir, Inc., 

FAA Order No. 92-48 at 7, 1992 FAA LEXIS 294, at *9 (July 22, 1992), petition for 

reconsideration denied, FAA Order No. 92-70 at 5-6, 1992 FAA LEXIS 352, at *3 (December 

21, 1992); accord, In the Matter of Pacific Aviation International, FAA Order No. 97-8, 1997 

FAA LEXIS 145 (February 20, 1997); In the Matter of Horizon Air Industries, FAA Order No. 

96-24, 1996 FAA LEXIS 2058 (August 13, 1996). 

As Respondent has acknowledged, the root cause of the events of December 2, 2013, was 

that Respondent's gate agent did not understand how to use Respondent's own systems, and 

neither did the other employees who had attempted "triage" on the situation. Exhibit A at 1-2. 

While the last-minute attempt by the flight crew to "resolve" the problem created by 

Respondent's ground personnel is pertinent, inasmuch as it was considered a mitigating factor by 

the FAA in determining the appropriate sanction in this case, it did not serve to make the 

Inspector's access to the cockpit "free and uninterrupted." Not only would granting the Motion 

to Dismiss be inappropriate, this is an issue that will, at the appropriate time, be properly 

disposed of as a matter of law in favor of the FAA. 

4 
With regards to ~ 8 of the Complaint, Respondent argues that if a particular fact is not 

mentioned in an inspector's statement in the Items of Proof in the EIR, then the FAA is 

precluded from alleging that fact in a Complaint. See Motion to Dismiss at 4-6. It is telling that 

this argument, which consumes half of Respondent's Motion to Dismiss, is not supported by a 

single citation of law. See id The general notion that an EIR package is to inclnde the evidence 

gathered by the FAA inspectors does not serve to preclude the FAA from ever alleging any fact 

or using any evidence that was not explicitly referenced in an Item of Proof. The position taken 

by Respondent is especially inapt when, as here, the items of proof in question are short 

statements of events, which one would generally not expect to include every single possible 

detail of what occurred over a period of several hours. Further, Respondent's assertion that the 

evidence "contradicts" the Complaint is puzzling, as it is clear that there is no such contradiction. 

Respondent seems to believe that a minimal reference to a topic (Inspector Garberg's 

interactions with Respondent's personnel after the Inspector deplaned) constitutes an affirmative 

assertion that absolutely no words were exchanged except the two sentences mentioned in that 

minimal reference- a belief that has no foundation in fact or law. 

WHEREFORE, the FAA respectfully request that the Judge deny Respondent's Motion 

to Dismiss. 

Respectfully submitted this 21st day ofNovember, 2014. 

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,·Ay·~/ 

CHRISTOPHER R. STEVENSON 

Attorney 

Office of the Regional Counsel 

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/} // /+-~~-----------------------------------------
CERTIFICATE OF SERVICE 

I hereby certify that a copy of the foregoing FAA's Response to Motion to Dismiss has been sent 

this date by Regular Mail and Certified Mail, Return Receipt Requested, to the following: 

original and one copy: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Attention:Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

Washington, D.C. 20591 

one copy: 

Jon-Peter Kelly, Esq. 

Delta Airlines, Department 981 

I 030 Delta Boulevard 

Atlanta, GA 30354-1989 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, D.C. 20590 

DONNASTANLEY 

W®mcD ~ \ 

Legal Assistant 

Office of the Regional Counsel 

NO\f .? i 

Dated 

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