## u.s. DEPARTMENT OF TRANSPORTATloiD

# ECEI 

# v ED OFFICE OF HEARINGS 

# n FEDERALAVIATIONADMINISTRATION 

## NOV 2 52014 

## HEARING DOCKET FEDERAL AVIATIONADMINISTRATION, Complainant,

vs. DELTAAIRLINES, INC., Respondent. DocketNo. FAA-2014-0814 FAA CaseNo. 2014S0670010
Judge Goodwin
RESPONSE IN OPPOSITIONTO MOTION TO DISMISS 

### On November 13, 2014, Respondent filed a motion to dismiss the complaint for insufficiency. Respondent asks the Judge to ignorethe actions ofits personnel who, after an hour ofattemptingto "resolve" a situation created by theirinabilityto use Respondent's own systems, instructed an FAA Inspectorto deplane from aflight that hadjustbeenclearedto pull back from the gate. Respondent argues thatbecausethe Inspector "voluntarily" deplaned,ratherthan stay in the cockpit and indefinitely delay an international flight while more of

### Respondent's personnel attemptedto "resolve"the situation, itdid notinfringe onthe Inspector's almost unlimited access to the cockpit that is guaranteed by the Federal Aviation Regulations. Respondent's motion is withoutmerit, and shouldbe 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

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### 3-4; Motion to Dismiss IExhibits I, 3. At approximately 18:25, Inspector Garberg was informed by Respondent's gate agent that she could not find Inspector Garberg 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 ofRespondent'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 ofthe 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 oftime. Complaint '1J7; Motionto Dismiss Exhibits 1, 3; Exhibit A at 1 (praising how "Inspector Garberg followed the FAA's near flawless culture ofpartnering with the airlines ensuring that inspection duties do not interfere with one ofthe largest success divers ofourbusiness, on-timeperformance"). 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 ofthe flight crew attempted to "resolve"the matter. 

### See Motionto Dismiss at 4. Respondent's argument is without merit.

2

### "Whenever, in performing the duties ofconducting an inspection, an inspector ofthe Federal Aviation Administration presents form FAA IIOA, "Aviation Safety Inspector's Credential," to the pilot in command ofan aircraft operatedby a certificate holder, the inspector must be given free and uninterrupted access to the pilot's compartment ofthat aircraft." 14 C.F.R. § 

### 121.548. Here, there is no dispute that Inspector Garberg was an inspector ofthe FAA, that he was performing the duties ofconducting an inspection, or that he presented his IIOA to the pilot-in-command ofthe 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 ofthe 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 orderedby 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 ofRespondent'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 ifthe 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

1Respondent's personnel had already been attempting to "resolve" the situation for over an hour at the point intime when this exchange occurred.See Motion to Dismiss Exhibit I (notingthatInspector Garberg first presentedhis credentials to Respondent's gate agent at 18:25 and thatInspector Garberg was instructedto deplane after 19:30). 3permitted on the flight. This position is contrary to the explicit language ofthe 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 ofcommercial flights and engage in lengthy arguments with air carrierpersonnel 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 heldthat an employeris responsible forthe acts or omissions ofits employees acting inthe scope oftheir employment. In the MatterofTrans World Airlines, FAA Order No. 98-11, at *7 (June II, 1998) 1998 WL 348026; 

### See e.g, In the Matter ofWestair Commuter Airlines, Inc., FAA OrderNo. 93-18 at 7, 1993 FAA LEXIS 205, at *7 (June 10, 1993); Inthe 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 ofPacific Aviation International, FAA Order No. 97-8, 1997 FAA LEXIS 145 (February 20, 1997); In the Matter ofHorizon Air Industries, FAA Order No. 96-24, 1996 FAALEXIS 2058 (August 13, 1996). As Respondenthas acknowledged, the root cause ofthe events ofDecember2, 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 ispertinent, inasmuch as it was considered amitigatingfactor 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 ofas amatter oflawinfavor ofthe FAA.

4

### With regards to

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### 8 ofthe Complaint, Respondent argues that ifa 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 halfofRespondent's Motion to Dismiss, is not supported by a single citation oflaw. See id 

### The general notionthat an EIRpackage 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 ofProof. 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 ofwhat occurred over a period ofseveral hours. Further, Respondent's assertion that the evidence "contradicts"the Complaint is puzzling, as it is clearthatthere 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- abeliefthathas no foundation in fact or law. WHEREFORE, the FAA respectfully request that the Judge deny Respondent's Motion to Dismiss. Respectfully submittedthis 21st day ofNovember, 2014. /j/

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### CHRISTOPHERR. STEVENSON Attorney Office ofthe Regional Counsel



### 5 /} // **/+-~~-----------------------------------------**CERTIFICATE OF SERVICE Ihereby certifythata copy ofthe foregoing FAA'sResponseto Motionto Dismiss has been sent this date by RegularMail and CertifiedMail, ReturnReceipt Requested, to the following: original and one copy: Federal AviationAdministration 800 Independence Avenue, S.W. Attention:Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite2Wl000 Washington, D.C. 20591

one copy: Jon-Peter Kelly, Esq. DeltaAirlines, Department 981 I030 DeltaBoulevard Atlanta, GA 30354-1989 The Honorable Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJerseyAvenue, S.E. EastBuilding Ground Floor, RoomEl2-320 Washington, D.C. 20590 

# W®mcD**~** DONNASTANLEY \ Legal Assistant Office ofthe Regional Counsel 

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