02/24/2012 11:56 FAX 18015318S95 SKORDAS CASTON HYDE [^002 

Gregory G. Skordas (#3865) 

SKORDAS, CASTON & HYDE, LLC 

341 So. Main Stret.t, Suite 303 

Salt Lake City, U'[ 84111 

-Telephone: (801) 531-7444 

Facsimile: (801) 531-S8S5 

Attorney for Defendant 

:RANSPORTATIOM 

••'j^KhTOPFRATlONS 

'rjilT il'tl) Q [-) -J. 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In tlie Matter of: 

Josepli Moesse-j 

MOTION TO STRIKE 

COMPLAINANT'S MOTION FOR 

RECONSIDERATION AND 

SECOND MOTION FOR 

DECISION 

-FAA DOCKET CP Unassigned 

FAA Case No. 2OI0NM7200OI 

Judge Richard C. Goodwin 

The Respondent, Joseph Moesser, by and through his attorney, Gregory G. Skordas herby 

moves the Court to Strike Complainant's Motion for Reconsideration and Second Motion for 

Decision on the following grounds: 

ARGUMENT 

1. This Court Should Strike Complainant's Motion To Reconsider. No Rule Of 

Procedure Exists Permitting Complainant To Ask This Court To Reconsider Its 

Prior Rulings. 

Coinplaina:[it, unhappy with this Court's ruling on its Motion for Decision and leave to 

permit Respondeiii: to file liis Answer moves the Court to "Reconsider" its decision. A review of 

1 
02/24/2012 11:58 FAX 18015318835 SKORDAS CASTON HYDE ©003 

tlie appHcable nilt;;i; of procedure establishes that no such motion exists or is permitted. 14 CFR 

§ 13.218(f) sets foirth the specific motions that party can make before the court. 14 CFR § 

13.218(f) states: 

Specific Motions. A party may file the following motions with the administrative law 

judge. 

Following ^his language is a laundry list of permissible motions that may be filed. There 

is no "catch all" provision that peimits a party to ask for relief not included in that hst or make up 

motions not enum.t^rated. There is no language staling that the list of permissible motions is "nonexhaustive." No 'A'here do the rules contemplate tliat a party unhappy with the administrative law 

judge's ruling cat] :file a "Motion to Reconsider."' A "Motion to Reconsider" simply does not 

exist. 

The principles or rules of statutory construcrion apply to administrative regulations and 

rules. M. Kraus X. Bros, v. U.S., 327 U.S. 614. (>(> S. Ct. 705. 90 L. Ed. 894 0946). "As the 

maxim expressio unius est exclusio alierins is applied to statutory interpretation, where a form of 

conduct, the mannijr of its perfonnance and operation, and the persons and things to which it 

refers are designated, there is an inference that all omissions should be understood as 

exclusions." 2A Sutherland Statutory Construction § 47:23 (7th ed.). "A statute which provides 

that a thing shall be done in a certain way cairies with it an implied prohibition against doing that 

thing in any other ivay." Id. Adhering to basic rules of statutory construction, it must be 

assumed tliat the omission of a "Motion to Reconsider" was not one of accident, but of design; 

the prospect of ijeimitring parties to continue to attempt to litigate issues that have been decided 
02/24/2012 11:58 FAX 18015318885 SKORDAS CASTON HYDE ©004 

by the court wastes; judicial resources. 

On the othcT hand, 14 CFR § 13.218(f) (4), entitled, Motion to Strike, pemits a party to 

move to strike "an;/ insufficient allegation or defense, or any redundant, immaterial or irrelevant 

matter in a pleadiniJ. " A party fiUng a motion to strike is required to serve a copy on each party 

before a response is required, or if now response is required, within ten days after service of the 

pleading. Respondent was served by certified mail on February 17, 2012. 

Respondent's counsel gave an honest and succinct answer to the court's Order to Show 

Cause. The stancl;;ird of review applicable to a court's decision to dismiss an appeal for failure to 

timely file a response is whether the Court's decision was "arbitrary and capricious." See 

Cornish v. F.A.A., 429 F.3d 806, 808 {S'^ Cir. 2005). This Court found that Respondent's 

counsel adequately explained his error. Respondent submitted to Complainant an answer six 

days after the due date that substantively addressed the Complaiuant's allegations. 

Complainant's "I^Iotion to Reconsider" cites factually distinct cases with results adverse to the 

respondents, but r.-.o where does it claim or establish that this Court's decision was "arbitrary and 

capricious" under i tie facts of this case. Accordingly, Respondent respectfully requests that the 

Court strike Comi)lainant's "Morion to Reconsider" or in the alternative find that it did not abuse 

it's discretion in permitting Respondent to file his answer. 

DATED tins day of February, 2012. 

SKORDA^^GASTON & HYDE, LLC 

egoiy G. Skordas 

3 
02/2-1/2012 11:5 6 F.AX 18015318885 SKORDAS CASTON HYDE 12)005 

I hereby c<a:iify that on the 

CERTIFICATE OF SERVICE 

2V day of February, 2012,1 served a true and correct copy 

of the foregoing MOTION TO STRIKE COMPLAINANT'S MOTION FOR 

REC0NSIDER,\TI0N AND SECOND MOTION FOR DECISION, via facsimile and by United 

States first class mail, postage pre-paid, to the following: 

Federal Aviation Administration (Original & one copy) 

800 Independence Ave. SW 

Washingtoji, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1000 

Facsimile 2:02.493.5142 

Jeffrey M Ktarper 

FAA Offici.; of Regional Counsel 

1601 Lind .Ave., SW 

Renton, W.\ 98057 

Facsimile: 425.227.1007 

The HonoDible Richard C. Goodwin 

Office of Hearings, M-20 

U.S. Dept. of Transportation 

1200 New .Ifersey Avenue, S.E. 

Washingto]!, DC 20590 

Facsimile 202.366.7536 

Skordas, Caston & Hyde, LLC