U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATIONADMINISTRATION 

# RECEIVED JUL 

## 212014 HEARING DOCKET
FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. COMAIR, INC., Respondent. DocketNo. FAA-2014-0318 FAA CaseNo. 2011S0271015
Judge Sullivan
MOTION TO STRIKE, MOTION TO DEEMADMITTED, AND RESPONSE IN OPPOSITION TO MOTION TO DISMISS 

### On May 29, 2014, the FAA filed the Complaint in this case. On June 26, 2014, on the basis that Respondent's in-house counsel was on vacation, the Respondent requested that the FAAwaive the Respondent's obligation to file a timely response. Attachment A at l. 

### The FAA declined to waive the Respondent's obligation to file an Answer1 ld. 

### On July 2, 2014, the Respondent filed a Motion to Dismiss? As the basis for its Motion to Dismiss, Respondent cites FAA Order 2150.3B, the FAA's compliance and enforcement program. Respondent asserts that the FAA's policy, as embodied in Order 2150.3B, bars the FAA from pursuing the instant civil penalty against Respondent. Motion to Dismiss at 1-2. Respondent's Motion to Dismiss is without merit, and should be denied. Indeed, Respondent's Motion to Dismiss is 

### not only

1 Itdoes not appearthattheregulation citedby Respondent, 14 C.F.R. § 13.216, authorizes the waiver ofany particularright and does not authorize one parly to excuse the otherparty's failure to thnely file apleading. Rather, § 13.216 is an instructionthat any waivers tbathappento be made mustbe made in writing or onthe record at hearing. Regardless, however, to the extentthat§ 13.216 mayhave authorized a waiver, the FAA did not waive any ofits rights. 2 The Respondent also requested a waiverofthe Answerperiod, andfiled an identical Motion to Dismiss, in the factually unrelated case against Respondentthathas been assigned DocketNo. F AA-2014-0319.

### without merit, it is frivolous and appears to have been filed for no purpose other than delaying Respondent's obligation to file an Answer in this case. Accordingly, the FAA moves to strike Respondent's Motionto Dismiss and that the Complaint be deemed admitted, as Respondent has failed to timely file an Answer or other appropriate response to the Complaint. The FAA and the Administrator ofthe FAA have authority to administratively impose civil penalties and also to take certificate actions against individuals or entities that hold them. The authority to impose monetary penalties extends to all persons coveredby the regulations, but necessarily the Administrator's ability to take a certificate action is limited by whether or not the individual holds a certificate (one cannotrevoke or suspend a certificate that does not exist). As a result, the situation occasionally arises where a certificate holder, aware of a likely certificate action, attempts to volnntarily surrender its certificate for cancellation in an effort to avoid the certificate action3 

### Accordingly, FAA Order 2150.3B says that FAA investigative personnel will "refuse the voluntary surrender of a certificate ifit appears the surrender is being attempted to avoid certificate action." FAA Order 2150.3B, Chapter 5,**~** 

### 1 O(b) (attached as AttachmentB). Contrary to Respondent's assertion, the FAA has no "internal rules and policies" against pursuing a civil penalty against a former certificate holder. Rather, the FAA has guidance reminding its investigative personnel that they can reject an attempt to voluntarily surrender a certificate for cancellation when the surrender was being made in an attempt to avoid certificate action (the personnel are reminded to check FAA records to see ifthere is apending enforcement action because a certificate holder may attempt to surrender the certificate to an individual who has no involvement in or personal knowledge ofthe pending certificate action). This case does not involve a certificate action, and Respondent's surrender was not made for purposes of avoiding a certificate action. Paragraph 1O(b) of Chapter 5 of FAA Order has no relevance

3 This most commonly occurs whenthe likely certificate action wouldbe arevocation.penalties against companies or individuals who had surrendered their certificates (which it is not), Respondent presents no basis for why the deviation from such an internal guideline would form the basis for the Judge to dismiss the Complaint. Respondent's Motion to Dismiss is due to be denied, Respondent's Motionto Dismiss is not only due to be denied, it should be struck entirely. Respondent's Motion is not simply unfounded, it is entirely frivolous. No reasonable person, muchless areasonable attorney, could conclude that Paragraph 1 O(b) ofChapter 5 ofPAA Order 2150.3B has the meaning Respondent asserts. Additionally, inasmuch as opposing counsel has made representations to the undersigned that it is "the informal policy ofthe PAA to agree to substantial discounts in settling up with no[n]-operating entities," the Respondent in this case is well aware that the PAA is not required to drop civil penalty actions against entities that have surrendered their certificates and have ceased operations4 Not only is the Motion frivolous, but giventhe circumstances described above, it is difficult to conclude that there was any purpose to the Motion other than an attempt to delay Respondent's deadline to file an Answer in this case, which is an inappropriate purpose for any filing before this or any other court. See, e.g., P.R.C.P. 11(b)(1). "Any party may make a motion to strike any insufficient allegation or defense, or any redundant, immaterial, or irrelevant matter in a pleading." 14 C.P.R. 

### § 13.218(£)(4). Respondent knew that its motion to Dismiss was without merit and filed it solely for the purpose ofdelay. The Motion to Dismiss is, in its entirety, immaterial and irrelevant, and the Motion to Dismiss should be stuck in its entirety. As Respondent noted in its e-mail, see Attachment A at 1, Respondent's deadline to file
an Answer passed no later than July 3, 2014. See 14 C.P.R. § 13.209(a) (requiring that an

4 As Respondent notes in its Motion to Dismiss, Comair did not cease operations and vanish entirely, but ratherwas merged into its parent corporation, DeltaAirlines. See Motion to Dismiss at 1n.l. 3As Respondent noted in its e-mail, see Attachment A at 1, Respondent's deadline to file
an Answer passed no later than July 3, 2014. See 14 C.P.R. § 13.209(a) (requiring that an Answer be filed within 30 days). Normally, the filing of a Motion to Dismiss would toll the period to file an Answer. See 14 C.P.R. 

### § 13.218(f)(2)(ii). As discussed above, Respondent's Motion to Dismiss should be struck, meaning the Respondent would not receive the benefits of the tolling

- indeed, it would be particularly inappropriate for Respondent to receive the tolling where, as here, the purpose offiling the Motionto Dismiss was notbecausethe Motion had even colorable merit, but because Respondent sought to abuse the tolling period in order to avoid having to file an Answer. Since Respondent failed to timely file an Answer, and cannot benefit from the tolling provision of § 13.218(f)(2)(ii) where the Motion to Dismiss is filed for the purposes of delay and is struck, the allegations in the Complaint should be deemed admitted pursuantto 14 C.P.R. 

### § 13.209(f). Respondent's Motion to Dismiss is frivolous and was filed for the purpose ofdelay. The Motion should be struck, and the allegations in the Complaint should be deemed admitted. Regardless, the Motionto Dismiss is withoutmerit and is due to be denied.

### v~ Respectfully submitted

### this~~_dayofJuly, 2014.

CHRISTOPHERR. S EVENSON Attorney Office ofthe Regional CounselCERTIFICATE OF SERVICE I hereby certify that the foregoing FAA's Motion to Strike, Motion to Deem Admitted, and Response in Oppositionto Motionto Dismiss was sent: original and one copy via certified mail to: Federal Aviation Administration 800 Independence Avenue, S.W. Washington, D.C. 20591 Attention: Hearing Docket Clerk, AGC-430 WilburWrightBuilcling- Suite 2W1000
one copyvia certifiedmail and facsimile to: The Honorable J.E. Sullivan Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, SE (Ell-310) Washington, DC 20590 facsimile: (202) 366-7536
one copy via certified mail and facsimile to: Robert P. Silverberg, Esq. 1101 30'h Street,NW, Suite 120 Washington, D.C. 20007 Facsimile: (202) 944-3306

Regional Counsel

Dated1101 30th Street N. W Suite 120 Washington, D. C. 20007 rsifverberq@sgbdc.com direct fine 202-944-3304 fax 202-944-3306 mobile 301-922-8895

210/23/09 2150.38 Chg 1 I. Issuance ofLetterofCorrection. When the inspector is satisfiedthatthe terms and conditions ofthe remedialtraining course and objectivehave beenmet, he or she closesthe enforcement action with a letter ofcorrection. See sample letter ofcorrection for remedial training in Figure A-18 ofAppendix A. Issuance ofthe letter ofcorrection, which contains a statementthat therequired remedial training has been satisfactorily accomplished, closes the case.
m. Failureto CompleteTraining. Ifthe airman fails to meet any term or condition ofthe program or the agreement, the inspectornotifies the airman by letter, sent byregularmail and either certified mail, return-receiptrequested, orregistered mail, thatparticipation in the training program has been terminated, andthat appropriate legal enforcement action will betaken. See sample letter oftermination in Figure A-19 ofAppendixA.
n. Remedial TrainingCase Study. A remedial training case study is found inFigure A-20 ofAppendix A. 10. Voluntary SurrenderofCertificate.
a. Purpose. This section provides guidelines for handling a certificate holder's voluntary surrender ofa certificate. b. SurrenderofFAACertificate for Cancellation. The FAA's regulations provide for the vohmtary surrender ofFAA-issued certificates for cancellation. See, for example, 14 C.F.R. §§ 61.27(a), 63.15(c), and 65.15, l19.6l(a) (!), 145.55(a) and (b). FAA investigative personnel, however, refuse the voluntary surrender ofa certificate ifit appears the surrender is being attempted to avoid certificate action. FAA investigative personnel should be alert for indications that a certificate holder is attempting to avoid a certificate action throughthe voluntary surrender ofa certificate, includingwhetherthe certificateholder is the subject ofan enforcement investigation or enforcement action. Consequently, before determining whetherto accept a certificateholder's voluntary surrender ofa certificate, FAA investigative personnel review actions in the EIS and other databases showing investigative or enforcement activity. Ifthe EIS or any other database reveals thatthe certificateholder is the subject ofan enforcement investigation orenforcementaction, FAA investigative personnel refuse the certificate holder's attemptto voluntarily surrender a certificate and continue with an investigation and recommend enforcement action, ifappropriate. See sample voluntary surrender ofcertificate form inFigure A-21 ofAppendix A. 11. LegalEnforcementActions.
a. General. This section describes enforcement actions that FAA investigative personnel may determine are necessary or appropriate for violations once they determine thatlegal enforcement action is appropriate based on the guidance in AppendixF, Enforcement Decision Process, and the guidance in this chapter.

5-14 GOVERNMENT**EX~IBIT**