BEFORE THE 

# RECEIVED U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C. 

## NOV l4 2014 HEARING DOCKET FEDERAL AVIATION ADMINISTRATION Complainant,

vs. DELTA AIR LINES, INC. Respondent. DocketNo. FAA-2014-0814 FAA Case No. 2014S0670010

Administrative LawJudge Richard C. Goodwin
MOTION TO DISMISS FORINSUFFICIENCY OF DELTAAIRLINES, INC.

Pursuant to Rules 49(a), 209(a), 218(f)(l), and 218(f)(2)(ii) ofthe Rules ofPractice (14 C.P.R.§§ 13.49(a), 13.209(a), 13.218(£)(1), and 13.218(f)(2)(ii)), Respondent Delta Air Lines, Inc., ("Delta") hereby moves to dismiss for insufficiency, withprejudice, the Complaint filed against itby the Federal AviationAdministration ("FAA") in the above-captioned matter. I. Factual Background OnDecember 2, 2013, FAA Inspector Peter Garberg presented his FAA 110 credential to gain access to the cockpit ofa Delta aircraft, Flight 402, whichwas scheduledto depart from John F. Kennedy International Airport ("JFK") in New York for Heathrow Airport ("LHR") in London. See Exhibit 

### 1(Statement ofPeter Gar berg, dated December 4, 20 13). 1 Inspector Garberg was initially granted access to the cockpit. Id. After several minutes, however, Delta ground personnel entered the aircraft and advised Inspector Garberg thathisjumpseatreservation

was for Flight402 on December 3, the following day. Id. According to Inspector Garberg's statement, "I questioned [the Delta agent's] information; however, I didn't want to create an undesirable situation. The Captain was willing to get involvedto help resolve, but again I didn't

1 This document was produced byFAAto Delta as part ofthe releasable portion ofthe Enforcement Investigative Report ("EIR"). FAA identified the statement as an item ofproof.think this was prudent." Id. Having declined the offer ofassistance from the Delta Captain, Inspector Garbergthus decided to disembark. Id. He further discussed the confusion over the date ofthejumpseatreservation withDeltaagents inthejetway. Id. After contacting his supervisor, and "[n]ot believingthere was any quick fix to the problem," Inspector Garberg returned to his base in Minneapolis on a different airline. ld. Inspector Garberg's statement makes no mention ofany conversations concerning, or any attempts to board, any subsequent JFK-to-LHR flights onDeltathat same day, December 2. Nor does the statement ofReo Pratt, Inspector Garberg's supervisor, who spoke with Inspector Garberg by phone after he exited the aircraft. See Exhibit 2 (Statement ofReo Pratt) 2 According to Pratt, they discussed the "'securityissue' having to do with the date ofhis reservation being December 3, instead ofDecember 2" and then "determined that the best course ofaction was for him to return to Minneapolis on the next available flight." Id. 

### II. FAA's Complaint FAA's Complaint alleges two instances ofdenied access, in violation of 14 C.P.R. 

### § 121.548: (1) Inspector Garberg's decision to deplane after his interaction with Delta agents on the aircraft, and (2) a supposed denial ofaccess "to two later flights from JFK to LHRthat day."**Complaint~~** 6-8. 

### III. Argument A. In Ruling on This Motion, The Court Should Consider The Statements on Which FAANecessarily Relied inDrafting Its Complaint. Generally, in reviewing a motionto dismiss, a court looks to the complaint itself. It is well-settled, however, that a court ruling on such a motion may also consider any document "where the complaintrelies heavily uponits terms and effect." RLI Insurance Company v. All

2 As with Inspector Garberg's statement, Mr. Pratt's statement was produced by FAA to Delta as pall ofthe releasable portion ofthe E!R. FAA identified Mr. Pratt's statement as an item ofproof. 2Star Transportation, 608 FJd 848, 850 (D.C. Cir. 2010) (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002)) (internal quotation marks omitted). See also Parnes v. Gateway 2000, Inc., 122 F.3d 546 n.9 (81 h Cir. 1997) ("[A] court may consider anundisputedly authentic documentthat a defendant attaches as an exhibitto a motion to dismiss ifthe [complainant]'s claims are based on the document."). Ifstatements are "integral to the complaint," but are not attached to the complaint, a court may consider such statements on a motionto dismiss without converting the motion into one for summaryjudgment (or a motion for decision). Inre XM Satellite Radio Holdings Sec. Litig., 479 F. Supp. 2d 165, 174 n.8 (D.D.C. 2007) (internal quotation marks and citation omitted). Accord Vanover v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), affdper curiam, 38 Fed. Appx. 4 (D.C. Cir. 2002) (unpublished opinion). Here, the Court should consider the statement ofInspector Garberg, as it is not only "integral" to the Complaint

-- it is the very foundation upon which the Complaintrests. Inspector Garberg would be the FAA's central, ifnot only, witness, ifthe case were to proceed to

a hearing. The Complaint

-- at least as to the first allegation ofdenied access --trackshis statement directly. FAA has identifiedthe statement as an item ofproofin the EIR it produced to Delta. Indeed, absent Inspector Garberg's statement, one cannot imagine the FAA's issuing a Notice ofProposed Civil Penalty in this case, much less a Complaint. Forthese reasons, the Court should assaythe contents ofthe statement oflnspector Garberg, FAA's central witness, in deciding the presentmotion. The Court is also free to considerthe statement ofMr. Pratt, one of the supervisors whom Inspector Gar bergtelephoned after deplaning.3

3 Although not as central to the Complaint as Inspector Garberg's statement, Delta submits thatthe statement ofthe inspector's supervisor, Mr. Pratt, should also be considered as a document on which FAA clearlyrelied in drafting the Complaint. In thereleasable portion ofthe EIRwhich FAA produced to Delta, FAA idenitifiedboth the Garberg 3B. The Facts Alleged in the Complaint as to the First Instance ofDenied Access Do Not Support a Finding ofa Violation of 14 C.F.R. § 121.548. In accordance with 14 C.F.R. § 121.548, an inspector, uponpresenting his credential to the pilot in command, "mustbe given free and uninterrupted access to the pilot's compartment of that aircraft." Accordingto the inspector, the pilot in command explicitly offered to "help resolve" the situation, whenthe inspector presentedhimselfone day priorto his reservation for thejumpseat, so that Inspector Garberg could conduct his inspection onthe flight to LHR. Exhibit 1. Yet, the inspector, ofhis own volition, elected to decline that offer and deplane. Complaint

### 'If 7. According to the Complaint and the inspector's own statement, once the ground personnel advised him ofthe problem withhisjumpseat reservation, the Delta Captain offered to intervene in a waythatwouldhave allowed the inspector to proceed

-- and Inspector Garberg chose to deplane instead. On these alleged facts, there is no basis for the Court to find an instance ofdenied access to the cockpit in violation of§ 121.548. Assuming all the foregoing facts relied uponby the FAAin its Complaint are true, the record indicates that, far from denying access, the pilot in command affirmatively offered to gain access for the inspector. Inspector Garberg was not denied access; he decided onhis owninitiative to get offthe aircraft. C. The Complaint's Allegation ofDenied Access to SubsequentFlights onDecember 2 Is Directly Contradicted by the Inspector's Statement. The Complaint alleges that, after the inspector deplaned, he spoke with Delta agents "aboutbeing given access to two later flights from JFKto LHRthat day, but was toldthat he would notbe permittedto board or conduct an inspection on either ofthose flights either." Complaint

### 'If 8. There is absolutely no factual basis for this allegation among the items ofproof

statement and the Pratt statement as items ofproof. See Exhibit 3 (FAA's Statement ofthe Case and Items of Proof). 

### 4producedbyFAA and, more to the point, it is directly contradictedby the inspector's own statement. As stated in FAA Order 2150.3B, Chapter 8, section 3, "[t]he items ofproofconsist of originals or certified copies ofeach piece ofevidence gathered to prove the violations." (Emphasis added.) The absence ofany items ofproofthat support an alleged violation demonstrates that dismissal is warranted. The need for dismissal is underscored where the items ofproofactually gainsay the allegation inthe Complaint. Inspector Garberg made no mention ofany attempt to gain access to "two laterflights"

on December 2. Quite the contrary, according to the inspector, after discussing the confusion

over the date ofhisjumpseatreservation withthe Delta agents, he spoke with a supervisor. Exhibit l. After determining that there was no "quick fix to the problem," he went hometo Minneapolis on a different airline. Id. Based onhis statement, he never even discussed "two later flights" with the Delta agents
-- and was certainly not denied access to any such flights. Shouldthe Court decide to consider the statement ofMr. Pratt, a review ofthat statement will demonstrate that it corroborates the inspector's account4 Mr. Pratt stated, "[Inspector Garberg] told me thathe hadbeenprevented from conducting his assigned cockpit enroute inspection because a Deltagate agent had insisted thathe could not be onthe flight, due to a 'security issue' having to do with the date ofhis reservationbeing December 3, instead of December 2. We discussed this for a few minutes, and determined that the best course ofaction

was for himto returnto Minneapolis onthe nextavailable flight." Exhibit2. Like Garberg, Pratt made no mention ofany attempt by the inspectorto boardtwo subsequent flights from JFK

4 Should the Court elect not to consider Mr. Pratt's statement, Delta submits that Inspector Garberg's statement provides ample basis to dismiss as to the second allegation. 

### 5to LHR on December 2. He stated, in point offact, thatthey decided thatthe inspector should return to Minneapolis onthe next available flight. The second allegation ofdenied access -- i.e.,**~** 8 ofthe Complaint-- has no basis infact and is directly contradicted by Inspector Garberg's statement (and also byMr. Pratt's statement). Based onthe FAA's own items ofproofonwhich the Complaint is, and indeed mustbe based, the second alleged instance ofdenied access never occurred. Rather than attemptingto gain

access to two subsequent JFK-to-LHRflights that day, Inspector Garberg --accordingto his own account-- simply went hometo Minneapolis. Given that Inspector Garberg's statement directly undercuts the second allegation ofdenied access (as does Mr. Pratt's), the Court should conclude that the FAA hadno item ofproofonwhich to base the second allegation ofdenied access and that dismissal for insufficiency is proper as to that allegation. IV. Conclusion The FAA's items ofproofdo not establish any violation of§121.538 as alleged by the FAA. Therefore, for the reasons set forth above, Respondent DeltaAir Lines, Inc., respectfully requests that the Complaintbe dismissed, with prejudice, for insufficiency.

Dated: November 13,2014 Respectfully submitted,

# By:~l**'-"-----'-"~~~** Jon-PeterF. Kelly

6 Assistant General Counsel DeltaAir Lines, Inc. Department 981 1030 DeltaBoulevard Atlanta, Georgia 30354-1989 Tel: (404) 714-5631 Fax: (404) 677-2971 Email: jonpeter.f.kelly@delta.com

### EXHIBIT 1

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## ::..c:: Reo, Peryour request, here are the facts ofmy cancelled London, Heathrow (LHR) trip. Times are approximate:

• Arrived in JFK at 17:15 EST, DEC 2 (Endeavor flight #3356) • Made initial contact with a gate agent for flight #402, DEC 2, (JFK-LHR) at I7:35 EST. She stated the individual that was required to checkme in (Supervisor?) wouldreturn shortly • l returned to the gate at I8:25 EST and spoke with a female, who I believe, was a Supervisor. She checked me in and reviewed my credentials: 8430-13, IIOA and passport. She indicated she could not find my name in the system. I provided her my reservation #GOZFNP e I attempted to board immediately. however, she stated catering was on the aircraft and it would be a few minutes e Roughly ten minutes later, the same women who checkedme in escorted me to the flight deck with my flight deck access pass " I met CaptainEric Forsgard #3058020, FO Timothy Cosgrove #3067696, and reliefpilot FO David Finnegan #3071032 e I was securing my belongings, and roughly twenty minutes later a gate agent entered the flight deck and asked for my employee number and "mycarrier". I informed her I was a FAA Inspector, credential #9038

., The aircraft received a pushback clearance (1930 EST) and the aircraft was about to begin moving when the Captain noticed thejetwayreturning back to the aircraft " The aircraft's L I door opened and three Deltapersonnel entered the aircraft. The Captain instructed the reliefFO to openthe flight deck door to determine why we were being delayed • The women I believed to be a Supervisor, a Delta "redcoat", and another individual informed me that I could not go on that flight. l was told: "Our information has you departing on DEC 3". I questioned her information; however, I didn't want to create an undesirable situation. The Captain was willingto get involvedto help resolve, but again I didn't think this was prudent " I had a further conversation with the Delta employees in thejetway. Again, I was told the departure date the airline referenced for my trip was DEC 3. What further confused me was the fact that one ofthe individuals stated security won't let you go. Whose security? e Imade contact with my Manager Dave Gerken and! explained the situation. Not believing there was any quick fix to the problem, I was able to emoutebackto MSP on Sun Country Airlines.

### EXHIBIT2

### Duringthe evening ofDecember 2, 2013 at approximately 7:00 PMCST, I received a phone call on my personal mobile phone from inspector Peter Garberg. I was not able to answer the phone, as I was driving atthe time. A few minutes later my mobilephonebeeped, indicatingthat it had received a text message. 

### I asked the passenger in my car to checkthe text message, which was from another inspector (who is acquainted with inspector Garberg). The passengerreadthe text message to me, which said in effect: "pleasecall Peter as soon as possible. He really needs to talkto you." 

### I found a place to pull over and attempted to call Pete, butthe call was not answered. 

### I resumed driving, and a few minutes laterhe called back. 

### I again found a safe place to pull over and answeredhis call. Hetold me thatthe reasonhe had not answered my call was thathe was onthe phone with our office manager, Dave Gerken, and told me that he hadbeenprevented from conductinghis assigned cockpit enroute inspection because a Deltagate agent had insisted that he could notbe on the flight, due to a "security issue" having to do withthe date of

## his reservation being December 3, instead ofDecember 2. We discussedthis for a few minutes, and determined thatthe best course ofaction was for himto return to Minneapolis on the

### next available flight.



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# !..< Reo W. Pratt Unit Supervisor AS0-67MSP

### EXHIBIT 3..,"l

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') •·. 1 **SECT~ON** B Case Number: 2014S0670011J I. Statement of Case On December 2, 2013 Inspector Peter Garberg, FAA credential number 9038 was denied flight deck access to conduct his assigned cockpit enroute inspection on Delta Airlines flight 402, operating from JFK International Airport, New York, New York, to lHR london, United Kingdom. (lOP 1) Inspector Garberg traveled to JFK to be in position in accordance with his assignment to perform an Element Performance Inspection (EPI). At 1735 EST on December 2, 2013 Inspector Garberg presented his FAA form 11OA credential to the gate agent atthe departure gate for flight 402 at JFK, and informed her that he would be conducting an enroute inspection ofthe Delta Airlines (DALA) flight from JFK to LHR. She responded that the individual who was required to check hirn in was not available and would return shortly. At 1825 EST upon observing that a different Delta Airlines employee had begun working at the same gate, he approached her and presented his credential and form 8430-13 (lOP 2) and Official Passport Approximately ten minutes later, she escorted him to the aircraft He entered the flight deck, presented his credential to the captain, and proceeded with his assigned duties in accordance with his assignment for conducting an inspection. (lOP 1) Approximately twenty minutes later, after the pilots had received and accepted clearance to push back from the gate and the flight was ready to depart, the flight deck crew noticed that the jetway was being positioned for access to the aircraft. The gate agent entered the cockpit, and instructed inspector Garberg to deplane, stating to him that he was not allowed on the flight. Inspector Garberg deplaned in accordance with her direction, and the flight departed. He then returned to his base, having been prevented from completing his assigned inspection. (lOP 1, 3) A letter of Investigation (LOi) was sentto Delta Airlines, Jim Graham VP Flight Operations, on December 4, 2013 (lOP 4). Delta responded to the LOI on December 12, 2013. Delta sent their response by e-mail attachment on December, and the office subsequently received the letter by mail. (lOP 5)

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**~terns** of Proof
Case Number: 2014S0670010 i. Statement of facts from Inspector Peter Garberg regarding sequence ofevents when he was removed from the flight for conducting his assigned inspection. 2. Copy of carbon of FAA form 8430-13 request for access to aircraft. 3. Statement of Inspector Reo Pratt, (Inspector Garberg's immediate supervisor) regarding phone conversations pertinent to Inspector Garberg being prevented from conducting his assigned inspection. 4. Copy of Letter of Investigation (lOI) sen! to Delta Air Lines, Jim Graham, VP Flight Operations, December 4, 2013. 5. Delta's response to LOI.



### ~ 20!4S0670010CERTIFICATE OF SERVICE I hereby certify that, onthis 13th day ofNovember 2014, I caused the foregoing Motion to Dismiss ofDeltaAir Lines, Inc., to be served upon the following: Attention: Hearing Docket Clerk, AGC-430 Federal Aviation Administration Suite 2W1000 Wilbur Wright Building 600 Independence Avenue, S.W. Washington, D.C. 20591 Tel.: (202) 385-8227 (original and one copy by UPS overnight delivery) The Honorable Richard C. Goodwin Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, D.C. 20590 Tel.: (202) 366-5121 (StaffAssistant) Fax: (202) 366-7536 (one copy by facsimile and one copy byUPS overnight delivery) Christopher R. Stevenson, Esq. Office ofthe Regional Counsel, AS0-7 Southern Region Federal Aviation Administration 1701 ColumbiaAvenue College Park, Georgia 30337 Tel.: (404) 305-5200 Fax: (404) 305-5223 (one copy by facsimile and one copy by UPS overnight delivery)