In the matter of 

COMAIR, INC. 

Respondent 

RECEIVED 

BEFORE THE 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

JUL 1 8 2014 

HEARING DOCKET 

Docket No. FAA-2014-0319 

FAA Case No. 2011S0271013 

Administrative Law Judge 

J .E. Sullivan 

ANSWER IN 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 Motion to Deem 

Admitted, and to the extent necessary seeks leave to reply to Complainant's Response in 

Opposition to Respondent's Motion to Dismiss. Respondent properly filed and pleaded in good 

faith its response to the FAA's Complaint. The rules specifically permit the filing of a motion to 

dismiss in lieu of filing an answer to a complaint. See §§ 13.209(a) and 218(f)(2) of the Rules of 

Practice. Complainant's counsel may not like the rule, but the right to file a motion to 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 Motion to Dismiss was filed only for 

purposes of delay, such was not the case and the filing of the Motion to 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 Motion to Dismiss. These facts are undisputed. So the question is what are the 

- 1 -
legal consequences of the 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 enforcement program states that enforcement action is taken to prevent and 

deter future violations of the Federal Aviation Regulations. See FAA Order 2150.3B, Chapter 2, 

~3 (f). As the FAA well knows, neither of these enforcement policy objectives can be met in the 

case where the FAA is pursuing enforcement action, be it civil penalty or certificate action, 

against an entity that no longer possesses an air carrier certificate. The conduct of Comair 

complained of by the FAA, assuming, arguendo, it constituted action inconsistent with the 

regulations, cannot be repeated by the company. In this context, there is no substantive 

difference between the two versions of legal enforcement action--certificate action and civil 

penalty action-as it relates to the application of the policy guiding the FAA's enforcement 

program. Complainant's Opposition to the Motion to Dismiss ignores the implications of 

certificate surrender in the context of this case and makes the unsupportable argument that 

dismissal of this matter is not warranted even though the FAA accepted the Respondent's 

certificate for cancellation without comment or reservation. It's the substance of the FAA's 

acceptance of the Comair certificate surrender that counts, not the form of the enforcement 

action pending at the time of surrender. No FAA enforcement policy objective as articulated in 

Order 2150.38 can be furthered by the continuation of this matter, thereby fully warranting the 

filing of a motion to disruiss the complaint as was done by Respondent in this case. 

Complainant next argues that by pursuing a settlement in these two unrelated matters, 

Respondent has conceded the FAA is not required to terminate enforcement efforts when the 

certificate holder surrenders its FAA credentials. Even though Respondent believes that the 

- 2-
FAA is wrong to pursue substantial civil penalty action against it under the circumstances, 

Respondent is not acting inconsistently by pursuing a settlement with 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 other reasons. Order 2150.3B recognizes this when in Chapter 6, §2 it states in the 

context of a discussion of prosecutorial discretion: 

Legal counsel uses sound prosecutorial judgment to make decisions that further the 

agency's safety mission and the public interest. After initiating a case, legal counsel in 

consultation with the concerned program office when practicable, may settle cases, when 

in their judgment, the settlement is warranted. 

Presumably the FAA would not initiate a case and seek a remedy it did not believe was fully 

warranted under the circumstances, and yet, the agency more often than not settles certificate 

action and civil penalty cases for less, sometimes far less, in terms of the length of the 

suspension period or the amount of the civil penalty than that originally sought by the FAA. 

Does this mean the FAA did not bring the case in good faith in the first instance? Of course not. 

Beyond the FAA's recognition of the use of settlements to further its aims, and consistent 

with the FAA objective of ensuring 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 of the underlying claim. See Rule 408 

of the Federal Rules of Evidence. Here Complainant seeks to suggest that Respondent's efforts 

at settlement are inconsistent with the Motion to Dismiss and should be taken into account by 

Your Honor in ruling on the 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. And for this 

reason Complainant's citation to §13.218(£)(4) (which in turn is based on Rule 12(f) of the 

- 3 -
F.R.C.P.) and reliance upon it to support its motion to strike is faulty both on substantive 

grounds, as discussed above, and procedurally because Complainant's misuse of Respondent's 

settlement efforts to support its motion to strike is an inappropriate use of such information. 

Finally, Complainant argues that even without Your Honor ruling on the merits of the 

pending Motion to Dismiss, the Motion should be disregarded and the Complaint thereby 

deemed admitted. Apart from the fact that Complainant has cited to no precedent for its farreaching form of relief, there is no question but that the Rules of Practice require, and as a matter 

of fundamental due process, Your Honor to rule on the pending Motion to Dismiss and, 

consistent with the Subpart G Rules of Practice, either grant or deny it. 

If the Motion is granted, the Complaint would be dismissed, and the Complainant could 

then appeal the Law Judge's ruling if it chooses to do so. If the Motion is denied, Respondent, 

by rule, is required to then answer the complaint within the prescribed 1 0 days of the date of 

service of the ruling. Complainant requests through its Motion to Strike and its Motion to Deem 

Admitted the procedurally flawed scenario where Respondent would be unfairly and improperly 

deprived of the right to file an answer to the complaint, should it not be dismissed. Granting 

Complainant's request would constitute a fundamental breach of the due process rights accorded 

all respondents and built into the FAA's procedural regulations and that otherwise are protected 

by the Constitution. Accordingly, the Complainant's argument that Respondent's rights under 

Subpart G should be circumvented in this 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 of Complainant to 

Respondent's Motion to Dismiss and requests the Complainant's motion to strike and motion to 

deem admitted be denied. 

Dated: July 17,2014 

Respectfully submitted, 

SILVERBERG, GOLDMAN & BIKOFF, L.L.P. 

Attorneys for 

::MAz·, ~~L Robert P. Sil~berg, Esq. ~ 

1101 301

h Street, N.W. 

- 5-

Suite 120 

Washington, D.C. 20007 

Tel: (202) 944-3304 

Fax: (202) 944-3306 

Email: rsilverberg@sgbdc.com 
CERTIFICATE OF SERVICE 

I hereby certify that on this 17'h day of July 2014, I caused the foregoing Answer in 

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 to be served upon the 

following: 

Federal Aviation Administration 

600 Independence Avenue, S.W. 

Wilbur Wright Building 

Suite 2W1 000 

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 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) 366-2132 

Fax: (202) 366-7536 

(one copy by facsimile and First Class Mail) 

Christopher R. Stevenson, Attorney 

Office of the 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)