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

DocketNo. 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 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 maynot like the rule, but the 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 safeguardbuilt 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 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 surrenderto 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 orreservation? The FAA's enforcement program states that enforcement action is taken to prevent and deter future violations ofthe Federal Aviation Regulations. See FAA Order 2150.3B, Chapter 2,**~3** (f). As the FAA well knows, neither ofthese enforcementpolicy objectives can be met inthe

case wheretheFAA is pursuing enforcement action, be it civil penalty or certificate action, against an entity that no longer possesses an air carrier certificate. The conduct ofComair complained ofby the FAA, assuming, 

### arguendo, it constituted action inconsistent with the regulations, cannot be repeated by the company. Inthis context, there is no substantive difference between the 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 eventhough 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, notthe form ofthe enforcement action pending at the time ofsurrender. No FAA enforcementpolicyobjective as articulated in Order 2150.38 can be furthered bythe continuation ofthis matter, thereby fully warranting the filing ofa motionto 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 whenthe certificate holder surrenders its FAA credentials. Even though Respondent believes that the

- 2-FAA is wrong to pursue substantial civil penalty action against itunderthe 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 otherreasons. Order 2150.3B recognizes this when in Chapter 6, §2 it states inthe context ofa discussion ofprosecutorial discretion: Legal counsel uses sound prosecutorialjudgmentto make decisions that further the agency's safety mission andthe public interest. After initiating a case, legal counsel in consultation with the concerned program office when practicable, 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 often than not settles certificate action and civil penalty cases for less, sometimes far less, interms ofthe length ofthe suspensionperiod orthe amount ofthe civil penalty than that originally soughtbythe FAA. Does this mean the FAA did not bringthe case in good faith inthe first instance? Ofcourse not. Beyond the FAA'srecognition ofthe use ofsettlements to further its aims, and consistent withthe 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 suggest that Respondent's efforts at settlement are inconsistent with the Motionto Dismiss and should be taken into account by Your Honorinruling on the Motion. In fact, the tribunal shouldtake no account of Respondent's settlement efforts consistent withRule 408. There is nothing inconsistent with filing the Motionto Dismiss at the same time Respondent is seeking a settlement. And for this

reason Complainant's citation to §13.218(£)(4) (which inturn is based on Rule 12(f) ofthe

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-F.R.C.P.) and reliance upon it to support its motion to strike is faulty both on substantive grounds, as discussed above, and procedurallybecause Complainant's misuse ofRespondent's settlement efforts to support its motionto strike is an inappropriate use ofsuch information. Finally, Complainant argues that even without Your Honorruling on the merits ofthe pending Motion to Dismiss, the Motion should be disregarded and the Complaintthereby deemed admitted. Apart from the fact that Complainanthas citedto no precedent for its farreaching form ofrelief, there is no question butthat 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 LawJudge's ruling ifit chooses to do so. Ifthe Motion is denied, Respondent, by rule, is required to then answer the complaint within the prescribed 10 days ofthe date of service ofthe ruling. Complainantrequests through its Motion to Strike and its Motionto Deem Admitted the 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 and that otherwise are protected bythe 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 ofComplainantto 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.comCERTIFICATE OF SERVICE I hereby certify that onthis 17'h day ofJuly 2014, I caused the foregoing Answer in Opposition to Complainant's Motionto Strike and Motion to Deem Admitted, and Reply to Complainant's Response in Opposition to Respondent's Motionto Dismissto be served uponthe following: Federal Aviation Administration 600 Independence Avenue, S.W. Wilbur Wright Building Suite 2W1000 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 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 SouthernRegion 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)