BEFORE THE RECEIVED 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

NOV l 4 2014 

HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION 

Complainant, 

vs. 

DELTA AIR LINES, INC. 

Respondent. 

Docket No. FAA-2014-0814 

FAA Case No. 2014S0670010 

Administrative Law Judge 

Richard C. Goodwin 

MOTION TO DISMISS FOR INSUFFICIENCY OF DELTA AIR LINES, INC. 

Pursuant to Rules 49(a), 209(a), 218(f)(l), and 218(f)(2)(ii) of the Rules of Practice (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, with prejudice, the Complaint filed 

against it by the Federal Aviation Administration ("FAA") in the above-captioned matter. 

I. Factual Background 

On December 2, 2013, FAA Inspector Peter Garb erg presented his FAA 11 0 credential to 

gain access to the cockpit of a Delta aircraft, Flight 402, which was scheduled to depart from 

John F. Kennedy International Airport ("JFK") in New York for Heathrow Airport ("LHR") in 

London. See Exhibit 1 (Statement of Peter 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 that his jumpseat reservation 

was for Flight 402 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 involved to help resolve, but again I didn't 

1 This document was produced by FAA to Delta as part of the releasable portion ofthe Enforcement Investigative 

Report ("EIR"). FAA identified the statement as an item of proof. 
think this was prudent." Id. Having declined the offer of assistance from the Delta Captain, 

Inspector Garberg thus decided to disembark. Id. He further discussed the confusion over the 

date of the jumpseat reservation with Delta agents in the jetway. I d. After contacting his 

supervisor, and "[n]ot believing there 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 of any conversations concerning, or any 

attempts to board, any subsequent JFK-to-LHR flights on Delta that same day, December 2. Nor 

does the statement of Reo Pratt, Inspector Garberg's supervisor, who spoke with Inspector 

Garberg by phone after he exited the aircraft. See Exhibit 2 (Statement of Reo Pratt) 2 

According to Pratt, they discussed the "'security issue' having to do with the date of his 

reservation being December 3, instead of December 2" and then "determined that the best course 

of action was for him to return to Minneapolis on the next available flight." Id. 

II. FAA's Complaint 

FAA's Complaint alleges two instances of denied 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 of access "to two later flights from JFK to LHR that day." 

Complaint~~ 6-8. 

III. Argument 

A. In Ruling on This Motion, The Court Should Consider The Statements on Which 

FAA Necessarily Relied in Drafting Its Complaint. 

Generally, in reviewing a motion to 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 complaint relies heavily upon its 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 of the 

releasable portion of the E!R. FAA identified Mr. Pratt's statement as an item of proof. 

2 
Star 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 an undisputedly 

authentic document that a defendant attaches as an exhibit to a motion to dismiss if the 

[complainant]'s claims are based on the document."). If statements are "integral to the 

complaint," but are not attached to the complaint, a court may consider such statements on a 

motion to dismiss without converting the motion into one for summary judgment (or a motion 

for decision). In re 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), affd per curiam, 38 Fed. Appx. 4 (D.C. Cir. 2002) 

(unpublished opinion). 

Here, the Court should consider the statement of Inspector Garberg, as it is not only 

"integral" to the Complaint -- it is the very foundation upon which the Complaint rests. 

Inspector Garberg would be the FAA's central, if not only, witness, if the case were to proceed to 

a hearing. The Complaint -- at least as to the first allegation of denied access --tracks his 

statement directly. FAA has identified the statement as an item of proof in the EIR it produced 

to Delta. Indeed, absent Inspector Garberg's statement, one cannot imagine the FAA's issuing a 

Notice of Proposed Civil Penalty in this case, much less a Complaint. For these reasons, the 

Court should assay the contents of the statement oflnspector Garberg, FAA's central witness, in 

deciding the present motion. The Court is also free to consider the statement of Mr. Pratt, one of 

the supervisors whom Inspector Gar berg telephoned after deplaning. 3 

3 Although not as central to the Complaint as Inspector Garberg's statement, Delta submits that the statement of the 

inspector's supervisor, Mr. Pratt, should also be considered as a document on which FAA clearly relied in drafting 

the Complaint. In the releasable portion ofthe EIR which FAA produced to Delta, FAA idenitified both the Garberg 

3 
B. The Facts Alleged in the Complaint as to the First Instance of Denied Access Do Not 

Support a Finding of a Violation of 14 C.F.R. § 121.548. 

In accordance with 14 C.F.R. § 121.548, an inspector, upon presenting his credential to 

the pilot in command, "must be given free and uninterrupted access to the pilot's compartment of 

that aircraft." According to the inspector, the pilot in command explicitly offered to "help 

resolve" the situation, when the inspector presented himself one day prior to his reservation for 

the jumpseat, so that Inspector Garberg could conduct his inspection on the flight to LHR. 

Exhibit 1. Yet, the inspector, of his 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 of the problem with his jump seat reservation, the Delta Captain offered to 

intervene in a way that would have 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 of denied access to the cockpit in violation of§ 121.548. Assuming all the foregoing 

facts relied upon by the FAA in 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 on his own initiative to get off the aircraft. 

C. The Complaint's Allegation of Denied Access to Subsequent Flights on December 2 

Is Directly Contradicted by the Inspector's Statement. 

The Complaint alleges that, after the inspector deplaned, he spoke with Delta agents 

"about being given access to two later flights from JFK to LHR that day, but was told that he 

would not be permitted to board or conduct an inspection on either of those flights either." 

Complaint 'If 8. There is absolutely no factual basis for this allegation among the items of proof 

statement and the Pratt statement as items of proof. See Exhibit 3 (FAA's Statement of the Case and Items of 

Proof). 

4 
produced by FAA and, more to the point, it is directly contradicted by the inspector's own 

statement. 

As stated in FAA Order 2150.3B, Chapter 8, section 3, "[t]he items of proof consist of 

originals or certified copies of each piece of evidence gathered to prove the violations." 

(Emphasis added.) The absence of any items of proof that support an alleged violation 

demonstrates that dismissal is warranted. The need for dismissal is underscored where the items 

of proof actually gainsay the allegation in the Complaint. 

Inspector Gar berg made no mention of any attempt to gain access to "two later flights" 

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

over the date of his jumpseat reservation with the Delta agents, he spoke with a supervisor. 

Exhibit l. After determining that there was no "quick fix to the problem," he went home to 

Minneapolis on a different airline. Id. Based on his statement, he never even discussed "two 

later flights" with the Delta agents -- and was certainly not denied access to any such flights. 

Should the Court decide to consider the statement of Mr. Pratt, a review of that statement 

will demonstrate that it corroborates the inspector's account4 Mr. Pratt stated, "[Inspector 

Garberg] told me that he had been prevented from conducting his assigned cockpit enroute 

inspection because a Delta gate agent had insisted that he could not be on the flight, due to a 

'security issue' having to do with the date of his reservation being December 3, instead of 

December 2. We discussed this for a few minutes, and determined that the best course of action 

was for him to return to Minneapolis on the next available flight." Exhibit 2. Like Garberg, 

Pratt made no mention of any attempt by the inspector to board two 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. 

5 
to LHR on December 2. He stated, in point of fact, that they decided that the inspector should 

return to Minneapolis on the next available flight. 

The second allegation of denied access -- i.e., ~ 8 of the Complaint-- has no basis in fact 

and is directly contradicted by Inspector Garberg's statement (and also by Mr. Pratt's statement). 

Based on the FAA's own items of proof on which the Complaint is, and indeed must be based, 

the second alleged instance of denied access never occurred. Rather than attempting to gain 

access to two subsequent JFK-to-LHR flights that day, Inspector Garberg --according to his own 

account-- simply went home to Minneapolis. Given that Inspector Garberg's statement directly 

undercuts the second allegation of denied access (as does Mr. Pratt's), the Court should conclude 

that the FAA had no item of proof on which to base the second allegation of denied access and 

that dismissal for insufficiency is proper as to that allegation. 

IV. Conclusion 

The FAA's items of proof do not establish any violation of§ 121.538 as alleged by the 

FAA. Therefore, for the reasons set forth above, Respondent Delta Air Lines, Inc., respectfully 

requests that the Complaint be dismissed, with prejudice, for insufficiency. 

Dated: November 13,2014 

Respectfully submitted, 

By:~l Jon-Peter '-"-----'-"~~~ F. Kelly 

6 

Assistant General Counsel 

Delta Air Lines, Inc. 

Department 981 

1030 Delta Boulevard 

Atlanta, Georgia 30354-1989 

Tel: (404) 714-5631 

Fax: (404) 677-2971 

Email: jonpeter.f.kelly@delta.com 
EXHIBIT 1 
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Reo, 

Per your request, here are the facts of my 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 

I 7:35 EST. She stated the individual that was required to check me in 

(Supervisor?) would return shortly 

• l returned to the gate at I 8:25 EST and spoke with a female, who I believe, was a 

Supervisor. She checked me in and reviewed my credentials: 8430-13, II OA 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 checked me in escorted me to 

the flight deck with my flight deck access pass 

" I met Captain Eric Forsgard #3058020, FO Timothy Cosgrove #3067696, and 

relief pilot FO David Finnegan #3071 032 

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 "my carrier". 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 the jetway returning back to the 

aircraft 

" The aircraft's L I door opened and three Delta personnel entered the aircraft. The 

Captain instructed the relief FO to open the 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 willing to get 

involved to help resolve, but again I didn't think this was prudent 

" I had a further conversation with the Delta employees in the jetway. 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 of the individuals stated security won't let you 

go. Whose security? 

e I made contact with my Manager Dave Gerken and! explained the situation. Not 

believing there was any quick fix to the problem, I was able to emoute back to 

MSP on Sun Country Airlines. 
EXHIBIT2 
During the evening of December 2, 2013 at approximately 7:00 PM CST, 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 at the time. A few minutes 

later my mobile phone beeped, indicating that it had received a text message. I 

asked the passenger in my car to check the text message, which was from another 

inspector (who is acquainted with inspector Garberg). The passenger read the text 

message to me, which said in effect: "please call Peter as soon as possible. He 

really needs to talk to you." I found a place to pull over and attempted to call Pete, 

but the call was not answered. I resumed driving, and a few minutes later he called 

back. I again found a safe place to pull over and answered his call. He told me 

that the reason he had not answered my call was that he was on the phone with our 

office manager, Dave Gerken, and told me that he had been prevented from 

conducting his assigned cockpit enroute inspection because a Delta gate agent had 

insisted that he could not be on the flight, due to a "security issue" having to do 

with the date of his reservation being December 3, instead of December 2. We 

discussed this for a few minutes, and determined that the best course of action was 

for him to return to Minneapolis on the next available flight. 

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EXHIBIT 3 
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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 

11 OA credential to the gate agent at the departure gate for flight 402 at 

JFK, and informed her that he would be conducting an enroute inspection 

of the 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 sent to 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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SECTION C - ~terns of Proof 

Case Number: 2014S0670010 

i. Statement of facts from Inspector Peter Garberg regarding sequence of events 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!4S0670010 
CERTIFICATE OF SERVICE 

I hereby certify that, on this 13th day of November 2014, I caused the foregoing Motion 

to Dismiss of Delta Air 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 of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, D.C. 20590 

Tel.: (202) 366-5121 (Staff Assistant) 

Fax: (202) 366-7536 

(one copy by facsimile and one copy by UPS overnight delivery) 

Christopher R. Stevenson, Esq. 

Office of the Regional Counsel, AS0-7 

Southern Region 

Federal Aviation Administration 

1701 Columbia Avenue 

College Park, Georgia 30337 

Tel.: (404) 305-5200 

Fax: (404) 305-5223 

(one copy by facsimile and one copy by UPS overnight delivery)