SERVED: April 19, 2016 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS - --- , ,_ -, __ 

WASHINGTON, DC 

In The Matter Of: 

Docket No. FAA-2014-0814 

DELTA AIR LINES, INC. 

) 

) 

) 

) 

) 

Case No. 2014S0670010 

Respondent 

ORDER DENYING THE RESPONDENT'S 

MOTION TO DISMISS FOR INSUFFICIENCY OF PLEADINGS 

On October 16, 2014, the FAA filed its Complaint. 

On October 28, 2014, Judge Richard C. Goodwin was assigned to preside over the case. 

On November 13, 2014, the Respondent, Delta Air Lines, Inc., filed a Motion to Dismiss 

for Insufficiency of Delta Air Lines, Inc. ("Motion"). 

On November 24, 2014, the FAA filed its Response in Opposition to Motion to Dismiss 

("Response"). That same day, November 24, 2014, a Procedural Order was filed, in which the 

parties were directed, among other things, to conduct and conclude discovery on or before March 

15, 2015. (Proc. Order, 2 if 2.) 

Two days later, on November 26, 2014, the Respondent filed the Motion of Delta Air 

Lines, Inc. for Leave to File Reply (''Motion for Leave"). As· part of the Respondent's Motion for 

Leave, the Respondent attached its "Proposed Reply Brief', which was titled Reply Brief In 

Support of Motion to Dismiss for Insufficiency of Delta Air Lines, Inc. ("Reply"). -

From November 26, 2014, to February 10, 2015, no action occurred on the case. On 

February 11, 2015, Judge Goodwin issued an Order Granting the Respondent's Motion for Leave 

to File Reply. This Order appeared to have been issued nunc pro tune, since the Respondent did 

not subsequently file a duplicate of its proposed November 26, 2014 Reply. 
One day later, on February 12, 2015, Judge Goodwin issued an Amended Procedural 

Order, which extended the parties' discovery deadline to June 1, 2015. 1 

From February 13, 2015, to September 4, 2015, no rulings were issued in this case. On 

September 4, 2015, Judge Goodwin transferred to a different federal agency. 

On October 8, 2015, this proceeding was reassigned to the undersigned Judge. 

On March 30, 201,6, a Notice of Case Status on Pending Motion was filed. 

A. Introduction 

1. The FAA' s Complaint 

The FAA alleges that on or about December 2, 2013, the Respondent, Delta Air Lines, 

Inc., committed multiple violations2 of14 C.F.R. § 121.548, which requires giving an FAA 

inspector free and uninterrupted access to the pilot's compartment of an aircraft. Based on the 

FAA's allegations, the FAA proposed a total civil penalty of $14,375. (Complaint, 1-2.) 

2. The Respondent's Motion to Dismiss the Complaint 

Pursuant to 14 C.F.R. § 13.209(a), and 14 C.F.R. § 13.218(t)(l) and (t)(2)(ii), the 

Respondent requests that the Complaint be dismissed with prejudice because of legal 

insufficiency. The Respondent asserts that the FAA' s pleadings are fatally flawed, for lack of 

factual support to prove its claims. As part of this Motion, the Respondent argues that extrinsic 

documents not attached to or referenced in the Complaint should be considered as part of the 

Complaint, on the grounds that such documents are "integral" to the FAA' s pleading. (Motion, 

1-3.) If these extrinsic materials are considered as part of the pleadings, then dismissal of the 

FAA' s pleading on the grounds of factual insufficiency is required. 

1 The record does not reflect whether the Court issued the February 12, 2015 Order sua sponte, or whether the 

parties had requested an extension of time to complete discovery. 

2 The Complaint does not specifically identify the number of violations. It appears that the FAA was alleging either 

two or three instances of denied access. (Complaint, 2, ifif 6 & 8). In contrast, the Respondent asserts in its Motion 

that the Complaint identified only two allegations of denied access. (Motion, 2 if 11.) 

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3. Brief Summary of the Parties' Arguments 

The Respondent argues that the factual proof upon which the FAA typically relies upon 

to formulate the fact allegations in all of its civil penalty complaints is contained in the FAA 

Inspector's Enforcement Investigative Report ("EIR"). Because the FAA conducts its 

investigation and prepares the EIR in accordance with guidance contained in FAA Order 

2150.3B, Chapter 8, § 3, the Respondent asserts that portions of the EIR previously disclosed by 

the FAA3 should contain all the facts necessary to support the FAA's pleading. (Reply, 2.) 

The Respondent attached certain portions of the EIR to its Motion (Motion, Exs. 1-3), 

and asserted that these EIR materials4 should be considered in conjunction with the Complaint, 

as "integral" to the Complaint. 

In Response to the Respondent's Motion, the FAA did not address whether or not the 

extrinsic EIR, not referenced or attached to the Complaint, should be deemed "integral" to the 

Complaint. Instead, the FAA focused on defending its factual allegations (Resp. 1-5) and argued 

that the proffered EIR materials demonstrated issues in dispute, and sufficient factual evidence 

to support the FAA's pleadings. (Resp. 2-5.) 

The FAA' s lack of response on whether extrinsic EIR material should be deemed 

"integral" to the Complaint means that the FAA has waived any arguments on the issue. 

However, the FAA's lack ofresponse is not fully dispositive of the matter. This is a threshold 

issue that calls upon the Court to exercise its gatekeeping function, and make a determination as 

to the applicability of extrinsic EIR documents when considering a dispositive motion on the 

pleadings. The Court must first consider and rule upon the Respondent's assertion that the EIR 

3 Neither party identified the date the FAA released portions of its EIR to the Respondent. It appeared undisputed 

that the certain ElR materials attached to the Respondent's Motion had been voluntarily provided by the FAA to the 

Respondent prior to the filing of the Complaint. 

4 The EIR Items of Proof identified a total of five (5) documents, two (2) of which were not attached to the Motion, 

or to the FAA 's Response. The Respondent attached the following three EIR exhibits: a) the December 4, 2013 · 

statement of FAA Inspector Peter Garberg (R Motion, Ex. I); b) the statement (undated) of FAA Supervisor Reo 

W. Pratt (R Motion, Ex. 2); and c) a Statement of the Case (undated) with an attached "Items of Proof' (R Motion, 

Ex. 3). 

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·materials are "integral" to the pleadings, before the Court may reach the extrinsic facts that both 

parties discuss and dispute in their materials. 

To properly address this threshold issue, the Court must distinguish between two types of 

preliminary challenges to a party's pleadings, that is: a fair notice (or facial) challenge, and a 

legal sufficiency challenge. The Court must also discuss the standard of review when extrinsic 

material is offered for consideration during a preliminary challenge to the pleadings. 

B. Brief Overview of Fair Notice and Sufficient Pleading 

1. Applicable FAA Regulations 

Pursuant to 14 C.F .R. § 13 .208( c ), the contents of an FAA complaint must contain: 

[T]he facts alleged, any regulation allegedly violated by the respondent, and the proposed 

civil penalty in sufficient detail to provide notice of any factual or legal allegation and the 

proposed ci vii penalty. 

14 C.F.R. § 13.208(c). 

Pursuant to 14 C.F.R. § 13.218(f)(l), a party moving to dismiss a pleading for 

insufficiency in an FAA civil penalty action must show: 

[T]he complaint fails to state a violation of a provision of the Federal aviation statute 

listed in the first sentence in 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, or any 

implementing rule, regulation, or order ... 

14 C.F.R. § 13.218(f)(l). 

Pursuant to 14 C.F.R. § 13.218(f)(2), a party may make any general motion to dismiss. 

Under 14 C.F.R. § 13.218(f)(2)(ii) a party may also move to dismiss a complaint, on any 

specified ground, in lieu of filing an answer. 

A general motion to dismiss a complaint under 14 C.F.R. § 13.218(f)(2)(ii) appears to 

encompass (but is not limited to) both any grounds allowed under the broad umbrella language 

of 14 C.F.R. § 13.218(f)(l), as well as the defensive grounds specified in Federal Rule of Civil 

Procedure Rule l 2(b ). In this case, the Respondent is specifically challenging the legal 

sufficiency of the FAA' s pleading. In general federal litigation, this type of motion is typically 

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referred to as a Rule l 2(b )( 6) motion to dismiss a pleading on the grounds of insufficiency, for 

"failure to state a claim upon which relief can be granted." Rule l 2(b )( 6). 

2. "Fair Notice" (Facial) Pleading Requirement 

The purpose of a pleading is to give the respondent "fair notice" of both the claim and 

"the grounds upon which it rests." See Steven Baicker-McKee, et al., Federal Civil Rules 

Handbook, 361 (West Publishing 2016). A party challenging the "fair notice" of a pleading is 

challenging "the adequacy of the language used in the pleading." Baicker-McKee, supra, at 458. 

In essence, in civil penalty cases, the FAA must provide sufficient "fair notice" of the 

safety violation allegation(s) and civil penalty requests in its pleading. Thus, the contents of an 

FAA complaint must contain certain legal and fact information pursuant to 14 C.F .R. § 

13 .208( c ). This requirement for sufficient allegation content in a pleading in a FAA civil penalty 

action is similar to the pleading requireme~t in Federal Rule of Civil Procedure 8(a),5 which 

requires, in part, 6 "a short and plain statement of the claim showing that the pleader is entitled to 

relief; and ... a demand for the relief sought .... "Fed. R. Civ. P. 8(a). 

A pleading provides sufficient fair notice on its face if it is short, understandable, and 

provides both general fact and legal support for each allegation and claim for relief. 27 Fed. 

Proc. L. Ed. 62.55 (2013) ("[E]ach averment of a pleading shall be simple, concise, and direct."). 

In recent years, short and concise pleading has become the norm, since detailed pleading is 

"risky" and "invites a pre-answer motion to dismiss premised on the very detail so gratuitously 

supplied." Baicker-McKee, supra, at 365~ 

Intricately detailed factual allegations are not necessary, nor need pleaders factually 

allege a prima facie case ... The Rules rely on discovery and summary judgment, rather 

than pleadings, to· flesh out the disputed facts and cull unmeritorious cases. 

5 It is well-established that the Federal Rules provide instructive guidance in these proceedings.· When the FAA 

promulgated its ROP in 1990, the FAA wanted to maintain a "less formal" administrative process. 55 Fed. Reg. 

27563 (Jul. 3, 1990) (Discussion ofFinal Rule). As a result, it declined to adopt as controlling the Federal Rules of 

Civil Procedure. Id at 27563. However, the FAA Administrator explained that its own rules, although not as 

detailed as the Federal Rules, were "already roughly parallel ... [to] the Federal Rules." Id. The FAA Administrator 

also assured the public that the Federal Rules-and case law construing them-would be "instructive" in 

administrative civil penalty cases. Id. 

6 The first prong of Fed. R. Civ. P. 8(a) is not applicable, since it requires a showing of federal court jurisdiction, 

which is not necessary in FAA civil penalty proceedings. 

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Id. at 361. 

In addition, Federal Rule of Civil Procedure Rule 8( e) requires that pleadings, even if · 

short and general in construction, be construed by the court "so as to do justice." Fed. R. Civ. P. 

8( e ). Pleadings are therefore "liberally construed" when considering whether or not an opposing 

party has received sufficient "fair notice" of a claim. Baicker-McKee, supra, at 382. 

3. Underlying Legal Sufficiency of Pleading 

In the instant case, the Respondent also included a plea for relief under 14 C.F .R. 

§ 13.218(f)(2)(ii). (Motion, 1.) 

A general motion for dismissal under 14 C.F.R. § 13.218(f)(2) is very broad in scope, and 

encompasses all types of motions for dismissal. Under 14 C.F.R. §13.218(f)(2)(ii), a respondent 

may also specifically move to dismiss the complaint, prior to filing an answer, on any specified 

grounds. Thus, 14 C .F .R. § 13 .218( f)(2 )(ii) appears to encompass fair notice pleading challenges 

allowed by inference under the broad umbrella language of 14 C.F.R. § 13.218(f)(l), as well as 

preliminary challenges identified in Federal Rule of Civil Procedure Rule 12(b ). 7 Typically, a 

party moving to dismiss a complaint by challenging the legal sufficiency of pleading is making a 

Rule 12(b )( 6) motion, which is a request to dismiss a pleading for "failure to state a claim upon 

which relief can be granted." Baicker-McKee, supra, at 458. 

A Rule l 2(b )(6) review of a pleading is different from reviewing a pleading for sufficient 

"fair notice" on its face. A pleading may provide "fair notice" on its face, and yet still be 

fundamentally flawed for the lack of either factual or legal support A Rule 12(b )( 6) motion 

asserts that the pleading, despite what it may clearly say, is still fundamentally flawed: 

The Rule allows trial courts to terminate lawsuits "that are fatally flawed in their legal 

premises and destined to fail, and thus to spare litigants the burdens of unnecessary 

pretrial and trial activity." 

Baicker-McKee, supra, at 483 (footnote omitted). 

7 It should be noted, however, that Rule 12 "does not provide an exhaustive list of all preliminary motions." BaickerMcKee, supra, at 455. 

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Thus, a Rule 12(b )( 6) motion tests the pleadings for legal sufficiency of the stated facts. 

A claim may be dismissed under Rule 12(b)(6) if it lacks legal authority, or if the "factual tale is 

implausible." Id. at 483. This is the modem form of the common law "demurrer" or exception to 

a pleading, where a respondent alleges that even if the pleading is true as stated, the respondent 

should not be compelled to go forward because no legal cause can be proven Baicker-McKee, 

supra, at 483; 71 C.J.S., §§ 230 and 239 (June, 2011) (a motion to dismiss the pleading is 

equivalent to a common law demurrer). 8 

[It] raises an issue of law and is directed to the sufficiency of the pleading, that is, it 

raises the question of the legal sufficiency of the facts stated. 

71 C.J.S., § 291 (June, 2011) 

In essence, in a demurrer or a Rule l 2(b )( 6) motion, the movant asserts that even if 

everything stated in the pleading is true, it is legally insufficient to constitute an action or .. defense. Id at§ 300. 

4. Four Corners of the Complaint 

Typically, when challenging the legal sufficiency of a pleading, the review of the 

pleading consists only of reviewing the four comers of the complaint. Fed. R. Civ. P. 12(d); See 

also, 71 C.J.S., § 236 (June, 201 l)(matters not constituting a pleading may not be considered). 

However, the "four corners" of a complaint will also include any documents attached to the 

complaint, or incorporated by reference to a complaint. Fed. R. Civ. P. lO(c); Chambers v. Time 

Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (For purposes of Rule 12(b)(6), "the complaint is 

deemed to include any written instrument attached to it as an exhibit or any statements or 

documents incorporated in it by reference." (quoting Int 'l Audiotext Network, Inc. v. Am. Tel. & 

Tel. Co., 62 F 3d 69, 72 (2d Cir. 1995 (per curiam). See also, 27 Fed. Proc. L. Ed. 62.118 (2013 ). 

However, as the Respondent correctly argues herein (Motion, 1-2), even documents not 

attached or referenced to the Complaint may be considered in a Rule 12(b )( 6) challenge, if the 

Court finds that such documents are "integral" to a case pleading - and thereby are part of the 

"four comers" of the pleading. In other words, if extrinsic documents are so much a part of the 

8 In some jurisdictions, demurrer practice is still allowed. Therefore, it should be noted that the procedures of 

demurrer and a Rule 12(b)(6) motion for dismissal are distinct in that if a demurrer is sustained, the case still pends 

until it is dismissed by separate order. 71C.J.S.,§231(June,2011) 

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· pleading that they may be deemed a part of the pleading, they are considered. 71 C.J.S., § 295 

(June, 2011 )(where plaintiff relies upon a written agreement to establish a cause of action, the 

court may consider such document when defendant annexes it to challenge the pleading). Thus, 

prior to considering any extrinsic document as part of the pleading on a Rule 12(b)(6) review, the 

court must determine whether the movant is correct that proffered extrinsic documents are an 

"integral" part of the pleading. 

C. Discussion of Respondent's Proffered EIR Extrinsic Material 

1. Respondent's Caselaw Support 

In support of its argument that the extrinsic EIR documents should be deemed "integral" 

to the FAA's pleadings, the Respondent cited to five (5) different cases. (Motion, 2-3.) Two (2) 

of these cases were not particularly helpful,9 since they involved allegations of insufficient 

pleading in cases brought pursuant to the Private Securities Litigation Reform Act of 1995 

("PSLRA"), which requires specialized and detailed fact pleadings in any security fraud cases. 

This type of specialized fact pleading mandated by the PSLRA is not required in civil penalty 

cases or in general federal civil litigation, and, therefore, these cases had little value herein. 

The scenarios outlined in the three (3) remaining cases cited by the Respondent appear to 

demonstrate that documents deemed "integral" to pleadings are typically documents that are 

relevant to the action and which contain undisputed fact or law, such as legal conditions already 

binding on the parties, or contracts in which the parties have previously agreed to terms and 

conditions. 

For example, a surety bond amount was the sole dispute in RLI Ins. Co. v. All Star 

Transp.lnc. 608 F.3d 848 (D.C. Cir. 2010). In this case, the D.C. Court of Appeals found that 

. Form BMC 84, which was used to identify all surety bond amounts, was a standardized federal 

form. It was required to be used in all actions where a surety bond was obtained. Form BMC 84 

contained both "a set of standard terms and conditions" and also required a finite amount of 

surety to be identified. Id. at 850. This meant that certain terms, as well as the finite amount of 

9 Specifically, In re XM Satellite Radio Holdings Sec. litig., 479 F. Supp. 2d 165 (D.D.C. 2007) and Parnes v. 

Gateway 2000, Inc., 122 F.3d 539, 546 (8th Cir. 1997). 

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· the surety bond, had already been discussed and agreed to by the parties, when they executed the 

surety bond. Thus, even though Form BMC 84 had not been referenced or attached to the 

complaint involving a surety bond dispute, the Court considered it as an "integral" and necessary 

part of the pleading. 

In Int 'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995 (per 

curiam), two telephone companies entered into a contractual agreement, in which they identified 

their agreed terms and prices for conducting business via international calling. Subsequently, one 

of the two companies filed suit, alleging breach of the agreement because of Sherman Antitrust 

violations. The plaintiff's amended complaint did not attach or incorporate the parties' 

contractual agreement, but the Second Circuit Cotirt considered it, because the amended 

complaint "relies heavily upon its terms and effect." Id. at 72. Despite resolving all contractual 

"ambiguities" in the plaintiff's favor, the Court affirmed a Rule 12(b)(6) dismissal of the 

plaintiff's amended complaint, because it failed to plead a cause of action under the contract's 

terms. Id. 

Seven (7} years later, the Second Circuit Court revisited the issue of when extrinsic 

documents should be considered and reviewed in a Rule 12(b)(6) motion. In Chambers v. Time 

Warner, Inc. 282 F.3d 147 (2d Cir. 2002), the Court considered extrinsic contracts as part of a 

Rule 12(b)(6) dismissal motion, because the case involved a contract breach dispute. However, 

the Court declined to consider certain other extrinsic documents as part of its Rule l 2(b )( 6) 

review. In discussing the distinction, the Chambers Court found extrinsic documents could only 

be considered "intergral" in a Rule 12(b)(6) motion if the plaintiff relied heavily upon such 

documents in drafting the pleadings, to the extent that such extrinsic documents "merge ... into 

the pleadings." Chambers, Id. at 153 (fn. 3). 

[W]e reiterate here that a plaintiff's reliance on the terms and effect of a 

document in drafting the complaint is a necessary prerequisite to the court's 

consideration of the document on a dismissal motion; mere notice or possession is 

not enough. 

Id. at 153. 

Thus, in Chambers, contracts negotiated and signed by the parties met the standard for 

consideration under the Rule 12(b)(6) motion. In contrast, proffered extrinsic material identified 

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as "AFTRA Codes" - which had not been previously discussed and signed by all parties - could 

not be considered "integral" to the pleadings, because the AFTRA Codes "in no way intended to 

prohibit broader provisions or definitions" between the parties. Id. at 152. 

The 2002 Chambers ruling appears to follow well-established legal precedent that has 

arisen out of the common law demurrer to pleadings. The scope of challenge to the pleadings 

cannot rely upon extrinsic documents, unless the court allows a special exception to utilize prior 

"admitted or undisputed facts" to "narrow and define the pleadings." 71 C.J.S., § 293 and 303 

(June, 201 l)("allegations of fact concerning the parties own acts in construing an instrument, 

such as a contract, are admitted.") 

2. FAA Order 2150.3B 

As part of its argument that the FAA's disclosed EIR materials should be deemed 

"integral" to the FAA's pleadings, the Respondent asserted that FAA Order 2150.3B required 

that the FAA' s safety violation allegations be based on "items of proof consist[ing] of ... each 

piece of evidence gathered to prove the violations." (Reply 2 (alteration in original)). The 

Respondent argued that extrinsic EIR materials must be deemed "integral" to the pleadings, or 

else the FAA's safety enforcement policies in "Order 2150.3B, as well as the entire EIR process 

[would be rendered] meaningless." (Id.) In making this argument, the Respondent appears to 

assert that the content of the disclosed EIR should be deemed legally binding on the FAA, 

similar to the way set terms found in a mandated standardized federal form, or the agreed terms 

of an executed contract, are undisputed and legally binding. 

It is well-established that FAA Order 2150.3B contains the "policies, procedures, and 

guidelines" for the FAA's safety compliance and enforcement program. FAA Order 2150.3B, 

Acting Adm. Cover Page, Oct. 1, 2007. FAA Order 2150.3B was implemented to be "used at all 

levels" by FAA agency personnel "engaged in the investigation, reporting, and processing of 

enforcement actions." Id. 

According to FAA Order 2150.3B, FAA investigators are responsible for providing "a 

written analysis" regarding their recommended legal enforcement action, which includes "the 

reasons why" they recommend such action. FAA Order 2150.3B, Chapter 2, §4(b ). 

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The Enforcement Investigative Report (EIR) is the means for documenting, 

assembling, organizing, and presenting all evidence and other relevant 

information obtained during an investigation. Because it is the record from which 

determinations of violation and sanctions are made, the report must be wellprepared, factual, and provide the proof required to substantiate the enforcement 

actions contemplated. 

Id. at Chapter 8 § (1 ). 

However, FAA Order 2150.3B also provides that in civil penalty enforcement actions, 

the FAA investigator's written analysis and recommendation for sanction is reviewed by 

personnel in either the FAA's regional office or at its Washington, D.C. headquarters office (Id. 

at§ 4(c)), and/or by FAA legal counsel. Id. at§ 4(d). When civil penalty cases are referred for 

legal enforcement action, FAA counsel may assess the case investigation arid recommendations, 

and select "a wide range" of tools to address the circumstances of each individual case, including 

"any alternative enforcement action ... appropriate and warranted." Id. at § 6(a); See also, FAA 

Order 2150.3B, Chapter 3, §§3(b), 4(d), and Chapter 8 § 7(b)(3)). 

Thus, while there is no doubt that FAA Order 2150.3B directs the FAA investigator to 

"gather all material, relevant evidence that either proves or disproves the potential violation." 

FAA Order-2150.JB, Chapter 4, § 2(a)(l), it is FAA legal counsel who "exercises broad 

prosecutorial discretion" in formal civil penalty enforcement actions. 10 (FAA Order 2150.3B, 

Chapter 6, § 2. This broad discretion "extends from the initial determination ... through closure 

of a case. (Id.; See also, Id. at Chapter 7, § 3(b)). As a result, the FAA legal counsel may meet 

with investigators, review the EIR, and prosecute an enforcement action based on an independent 

assessment of the case that may not be identified in the portion of the EIR that the FAA 

voluntarily discloses to the Respondent. 

Legal counsel makes an independent determination of the appropriate sanction 

type and amount, giving due consideration to the sanction recommended by the 

regional division. If legal counsel's assessment of the appropriate sanction differs 

with that of the program office, legal couns'el and the program office confer in an 

effort to reach an agreement. If they cannot agree, they elevate the issue to the 

appropriate headquarters offices .... Once legal enforcement action has been 

10 This appears to be similar to a criminal prosecutor's discretion when reviewing police reports and determining 

what actions should be taken that are legally sustainable. 

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initiated, legal counsel has the final authority to change the type of action or 

sanction, or enter into a settlement agreement. 

FAA Order 2150.3B, Chapter 8 § 7 (b)(3). . 

3. Extrinsic EIR not "Integral' to Complaint 

In the instant case, the Respondent has failed to persuasively show that the FAA's 

voluntarily disclosed portions of the EIR are binding upon the FAA or "integral" - as undisputed 

fact - in relation to the Complaint. The Respondent certainly did not assert that the disclosed EIR 

should be binding upon it, nor did the Respondent assert that the EIR contained undisputed facts. 

See, e.g., 71 C.J.S., § 303 (June, 2011). Based on FAA Order 2150.3B, the disclosed EIR does 

not purport to represent the full FAA enforcement action, nor is it binding upon the FAA in its 

discretionary enforcement actions. Thus, the EIR documents do not meet the "unambiguous" 

standard required for extrinsic documents that may be deemed "integral" to the pleadings 

because of prior party actions and agreements. 71C.J.S.,§295 (June, 2011). 

For example; FAA Order 2150.3B allows legal counsel to review the FAA investigator's 

EIR for factual adequacy and legal sufficiency, and to make independent determinations, in 

accordance with FAA safety enforcement policies, as to what (if any) enforcement action and 

sanction should be pursued. FAA Order 2150.3B, Chapter 8 § 7 (b)(3). Thus, FAA Order. 

2150.3B and the policies underlying FAA safety enforcement, allow FAA legal counsel 

independence and prosecutorial discretion in filing civil penalty cases. As a result, legal counsel 

may deviate from, or even reject, the EIR analysis and investigator recommendations in 

pursuing, or not pursuing, civil penalty enforcement. 11 

Second, while there is little doubt that in most civil penalty cases the FAA counsel 

utilizes the EIR in drafting the Complaint, this does not mean that counsel is required to rely 

"heavily" only upon the voluntarily disclosed portions of the EIR in initiating the action. To the 

contrary, it is highly likely that the EIR voluntarily disclosed by the FAA does not represent all 

11 This appears to be similar to a criminal prosecutor's discretion when reviewing police reports and determining 

what actions· should be taken that are legally sustainable. It was unclear, however, in reviewing FAA Order 2 l 50.3B 

whether such independent decision making is recorded by FAA employees in the EIR, or ever made available for 

public review. 

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· the investigative material in its possession, since there has not yet been any discovery scheduled 

or ordered in this case.

12 

Third, it should also be noted that the FAA' s Rules of Practice governing this 

proceeding, 14 C.F.R. Part 13, Subpart G, make no mention of the EIR, nor indicate that the 

FAA is limited to presenting evidence only contained in the EIR, or the disclosed portions of the 

EIR, to substantiate its pleadings. 

Fourth, FAA Order 2150.38 clearly states that it was developed to be an FAA staff 

manual, and was not intended by the FAA Administrator to "create any right or benefit, 

substantive or procedural" that could be enforced by a party against the FAA. FAA Order 

2150.38, Chapter 1, § 2(b) and (c). While this language in FAA Order 2150.3B is not 

dispositive of the issue, it certainly demonstrates that the FAA Administrator expressed an intent 

that FAA Order 2150.38 should not be deemed binding. 

Thus, based on the Rules of Practice, common law legal precedent, federal caselaw; Rule 

12(b)(6), and FAA Order 2150.38, the Respondent's argument that the proffered extrinsic EIR 

. must be deemed "integral" to the FAA's Complaint (Reply, 2) is not persuasive. As a result, the 

this Court will not reach or consider the extrinsic facts that both parties discuss and dispute in 

their materials. 13 

D. Respondent's Motion For Dismissal on Pleading 

Despite the fact that the Respondent's attached portions of the disclosed EIR will not be 

considered, the Court must still address the Respondent's motion for a sufficiency review of the 

FAA's pleadings. 

. The Respondent moved for dismissal by alleging the FAA' s Complaint was insufficient. 

(Motion, I.) As noted above, a review of the four comers of the Complaint required by 14 C.F.R. 

12 Typically, the FAA withholds certain parts of the record pursuant to FAA Order 2150.3B, Chapter 2, § 8(d), 

which may then be subject to a motion for disclosure during litigation. See, e.g., In re: Airborne Maintenance and 

Engineering Services, FAA-2013-1291, Order Denying Respondent's Motion to Compel Discovery ofFAA 

Attorney's Work Product (Aug. 19, 2014). 

13 Because the extrinsic material is excluded, the Court need not convert the Rule 12(b)(6) motion into a summary 

judgment proceeding, as required by Rule 12(d). See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d 

Cir. 2002). . 

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~§ 13.218(f)(l) and 14 C.F.R. § 13.218(£)(2) must first address the "fair notice" sufficiency of the 

FAA' s pleading. 

1. Sufficient "Fair Notice" on Face of the Pleading 

As a general rule, courts should adjudicate cases on their merits. 27 Fed. Proc. L. Ed. 

62.16 (2013). When a pleading is challenged and reviewed for legal sufficiency, the court must 

construe the pleading liberally in the pleader's favor: 

[T]he court presumes that all well-pleaded allegations are true, resolves all reasonable 

doubts and inferences in the pleader's favor, and views the pleading in the light most 

favorable to the non-moving party. 

Baicker-McKee, supra, at 483. 

In the instant case, the Respondent does not assert that the Complaint fails to identify a 

violation of an aviation safety statutory or regulatory provision. Rather, the Respondent agrees 

that the Complaint clearly alleges that the Respondent may have violated a specific FAA 

regulation, that is: 14 C.F.R. § 121.548. (Motion, 2 if II.) The Respondent also acknowledges that 

the Complaint alleges certain facts in support of that safety violation allegation, and also 

identifies legal support for a proposed civil penalty, as well as a proposed total amount of civil 

penalty for the safety violations. 

Thus, pursuant to 14 C.F .R. § 13 .218( f)( 1 ), the content of the FAA' s Complaint on its 

face provides sufficient facts and law so that the Respondent had fair notice of the FAA' s claim 

of violations, 14 the legal authority for such violations, the fact grounds upon which it was based, 

and the proposed total civil penalty. As a result, liberal construction of the Complaint 

demonstrates that the FAA provided "fair notice" to the Respondent on the face of the pleading 

of the FAA's claims. 

14 As noted earlier herein, the parties appear to disagree as to the number of violations alleged (i.e., two v. three). 

However, this may_be clarified through discovery exchange, or by a respondent motion for a more definite statement 

pursuant to 14 C.F.R. § 1J.218(t)(3). 

Page 14of16 
2. Legal Sufficiency of Pleading 

The focus of the Respondent's Motion, however, was on a review of the underlying legal 

sufficiency of the pleading, equivalent to a Rule 12(h)(6) motion. As noted earlier, the 

Respondent's Motion relied heavily on the proffered extrinsic EIR materials, which will not be 

considered herein. 

Nevertheless, a brief review for underlying legal sufficiency will be presented, 

considering only the content within the four comers of the FAA's Complaint. In this review, the 

court must also construe the pleading liberally, with all inferences made in favor of the pleading 

party. Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). 

It is well-established that complaint should not be dismissed under Rule 12(b)(6) unless it 

fails to "contain sufficient factual matter, accepted as true, to 'state a claim to relief that is 

plausible on its face." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. 

Twombly, 550 U.S. 544, 570 (2007). See also, 71 C.J.S., § 245 (June, 201 l)("it must appear with 

certainty that the law permits no recovery, and all doubt must be resolved in favor of refusing to 

sustain the objection.") Even if the court doubts whether the FAA will be able to prove all of the 

necessary factual allegations in support of its claim, its Complaint should not be dismissed. 

Baicker-McKee, supra, at 456; Fusco v. Xerox Corp., 676 F.2d 332, 334 (8th Cir. 1982) . 

. Dismissal is appropriate only if "it appears beyond doubt that the plaintiff can prove no set of 

facts which would entitled him to relief." Sweet v. Sheahan, 235 F .3d 80, 83 (2d Cir. 2000). 

[A]lthough a plaintiff need not set out in precise detail the facts upon which the claim is 

based, he or she must still plead the operative facts necessaryto set forth an actionable 

claim. 

7l C.J.S., § 124 (June, 2011). 

In the instant case, the FAA has asserted that on or about December 2, 2013, the 

Respondent denied an FAA Inspector access to three (3) ·different aircraft, for purposes of 

conducting an inspection,. The FAA has asserted that these acts by the Respondent constitute 

violations of 14 C.F.R. § 121.548. The regulatory language of 14 C.F.R. § 121.548 encompasses 

this type of averment, and the facts in the Complaint, although short and concise, are sufficient to 

support the regulatory violation as alleged. 

Page 15of16 
The FAA has further claimed a total penalty of $14,375 for the alleged violations, on the 

basis of 49 U.S.C. § 46301(a)-(d). Interestingly, neither party pointed out that the FAA alleged 

that the maximum civil penalty for each violation, pursuant to 49 U.S.C. § 46301(a)-(d), was 

"1,100. (Complaint, 2.) If this is true, then the FAA's calculation of a proposed total civil 

penalty of $14,375 as appropriate for the three (3) violations (i.e., $1,100 x 3 = $14,375) seems 

quite extraordinary. 

However, the test for the sufficiency of the pleading rests on all of the averments of the 

pleading, not just from an isolated allegation. 71 C.J.S., § 124 (June, 2011). In addition, the 

liberal construction of the pleading, "with the view of sustaining it" means that the potential error 

of the cited $1, 100 maximum may be cured by other means without dismissal. Id. at 126 (matters 

of form do not invalidate the pleading). Therefore, the Respondent's motion for dismissal on the 

pleadings, for insufficiency (or failure to state a claim upon which relief may be granted), must 

be denied. 

E. Conclusion 

Pursuant to 14 C.F.R. §§ 13.205, and after reviewing all pleadings and documents, as 

well as all relevant caselaw, decisions, regulation, statutory authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. The Respondent's proffered extrinsic EIR materials are not "integral" to the FAA' s 

Complaint, and will not be considered as part of the FAA's pleadings. 

2. The Respondent's Motion to Dismiss the FAA's Complaint on the grounds that such 

pleadings are legally insufficient is denied. 

3. Pursuant to 14 C.F.R. § 13.218(f)(l), the Respondent shall file an Answer to the 

Complaint not later than ten (10) days after service· of this Order. 

Attachment: Service List 

Page 16of16 
Docket No. FAA-2014-0814 

(Civil Penalty Action) 

SERVICE LIST - BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence A venue, S. W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2Wl000 15 

Mr. Christopher R. Stevenson 

Complainant's Counsel 

Office of the Regional Counsel, ASO-7 

Southern Region 

1701 Columbia Avenue 

College Park, GA 30337 

TEL: 404-305-5200 

FAX: 404-305-5223 

Mr. Jon-Peter F. Kelly 

Respondent's Counsel 

Assistant General Counsel 

Delta Air Lines, Inc. 

Department 981 

1030 Delta Boulevard 

Atlanta, GA 30354-1989 

TEL: 404-714-5631 

FAX: 404-677-2972 

Judge J.E. Sullivan 

U.S: Administrative Law Judge 

Office of Hearings, M-20 

ONE COPY 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (El 1-310) 

Washington, DC 20590 

TEL: 202-366-2132 

FAX: 202-366-7536 

15 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.