## 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



### ORDERDENYING THERESPONDENT'S MOTION TO DISMISS FORINSUFFICIENCY OF PLEADINGS

On October 16, 2014, the FAA filed its Complaint. On October 28, 2014, Judge Richard C. Goodwin was assigned to preside overthe case. On November 13, 2014, the Respondent, Delta Air Lines, Inc., filed a Motion to Dismiss for Insufficiency ofDelta Air Lines, Inc. ("Motion"). OnNovember 24, 2014, the FAA filed its Response in Oppositionto Motionto Dismiss ("Response"). That same day, November 24, 2014, a Procedural Order was filed, in whichthe parties were directed, among other things, to conduct and conclude discovery on orbefore March 15, 2015. (Proc. Order, 2 

### if 2.) Two days later, onNovember 26, 2014, the Respondent filed the Motion ofDeltaAir Lines, Inc. for Leave to File Reply (''Motion for Leave"). As·part ofthe Respondent's Motion for Leave, the Respondent attached its "Proposed Reply Brief', which was titled Reply BriefIn Support ofMotion to Dismiss for Insufficiency ofDelta Air Lines, Inc. ("Reply").

- From November 26, 2014, to February 10, 2015, no action occurred onthe case. On February 11, 2015, Judge Goodwin issued an Order Granting the Respondent's Motion for Leave to File Reply. This Order appearedto have been issued 

### nuncpro tune, since the Respondent did not subsequently file a duplicate ofits 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 September4, 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 ofCase Status on Pending Motion was filed. 

### A. Introduction 1. The FAA's Complaint The FAA alleges that on or about December2, 2013, the Respondent, DeltaAirLines, 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 ofan aircraft. Based onthe FAA's allegations, the FAA proposed

## atotal 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 Complaintbe dismissed with prejudice because oflegal insufficiency. The Respondent asserts that the FAA's pleadings are fatally flawed, for lack of factual support to prove its claims. As part ofthis Motion, the Respondent argues that extrinsic documents not attached to orreferenced in the Complaint shouldbe considered as part ofthe Complaint, on the grounds that such documents are "integral" to the FAA's pleading. (Motion, 1-3.) Ifthese extrinsic materials are considered as part ofthe pleadings, then dismissal ofthe FAA's pleading on the grounds offactual insufficiency is required.

1The record does not reflect whether the Court issued the February 12, 2015 Ordersuasponte, orwhetherthe parties had requested an extension oftime to complete discovery.
2 The Complaint does not specifically identify the number ofviolations. Itappears that the FAA was alleging either two or three instances ofdenied access. (Complaint, 2, 

### ifif 6 & 8). In contrast, the Respondent asserts in its Motion that the Complaint identified only two allegations ofdenied access. (Motion, 2 

### if 11.) Page 2of173. BriefSummary ofthe Parties' Arguments The Respondent argues that the factual proofupon whichthe FAAtypically relies upon to formulate the fact allegations in all ofits 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 ofthe EIRpreviously disclosed by the FAA3 should contain all the facts necessary to support the FAA'spleading. (Reply, 2.) The Respondent attached certainportions ofthe 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 ornotthe extrinsic EIR, notreferenced orattached 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'spleadings. (Resp. 2-5.) The FAA's lack ofresponse on whether extrinsic EIR material should be deemed "integral" to the Complaint means that the FAA has waived any arguments onthe issue. However, the FAA's lack ofresponse is not fully dispositive ofthe matter. This is a threshold issue that calls upon the Court to exercise its gatekeeping function, and make a determination as to the applicability ofextrinsic EIR documents when considering a dispositive motion onthe pleadings. The Court must first consider and rule upon the Respondent's assertion thatthe EIR

3 Neither party identified the date the FAA released portions ofits EIR to the Respondent. It appeared undisputed that the certain ElR materials attached to the Respondent's Motion had been voluntarily providedby the FAA to the Respondent prior to the filing ofthe Complaint.
4 The EIR Items ofProofidentified a total offive (5) documents, two (2) ofwhich were not attached to the Motion, orto the FAA's Response. The Respondent attached the following three EIRexhibits: a) the December4, 2013 · statement ofFAA Inspector Peter Garberg (R Motion, Ex. I); b) the statement (undated) ofFAA SupervisorReo W. Pratt (R Motion, Ex. 2); and c) a Statement ofthe Case (undated) with an attached "Items ofProof' (RMotion, Ex. 3).
Page 3of17·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'spleadings, that is: a fair notice (or facial) challenge, and a legal sufficiency challenge. The Court must also discuss the standard ofreview when extrinsic material is offered for consideration during a preliminary challenge to the pleadings. B. BriefOverview ofFair Notice and Sufficient Pleading 1. Applicable FAA Regulations Pursuant to 14 C.F.R. § 13.208(c), the contents ofan FAA complaintmust contain: [T]he facts alleged, any regulation allegedly violated by the respondent, and the proposed civil penalty in sufficient detail to provide notice ofany factual orlegal allegation and the proposed civii 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 ofa provision ofthe Federal aviation statute listed in the first sentence in 49 U.S.C. 46301(d)(2) or in 49 U.S.C. 47531, orany 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 offiling 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 ofCivil Procedure Rule l2(b). In this case, the Respondent is specifically challenging the legal sufficiency ofthe FAA's pleading. In general federal litigation, this type ofmotion is typically

Page 4of17referred to as a Rule l2(b)(6) motion to dismiss a pleading onthe grounds ofinsufficiency, for "failure to state a claim upon which reliefcan be granted." Rule l2(b)(6). 2. "FairNotice" (Facial) Pleading Requirement The purpose ofa pleading is to give the respondent "fairnotice" ofboththe claim and "the grounds upon which it rests." 

### See Steven Baicker-McKee, et al., 

### Federal CivilRules Handbook, 361 (West Publishing 2016). A party challenging the "fairnotice" ofa pleading is challenging "the adequacy ofthe language used in the pleading." Baicker-McKee, 

### supra, at 458. In essence, in civil penalty cases, the FAA must provide sufficient "fairnotice" ofthe safety violation allegation(s) and civil penalty requests in its pleading. Thus, the contents ofan FAA complaint must contain certain legal and fact informationpursuantto 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 ofCivil Procedure 8(a),5 which requires, inpart,6 "a short and plain statement ofthe claim showing that the pleader is entitled to relief; and

... a demand for the reliefsought

...."Fed. R. Civ. P. 8(a). A pleadingprovides sufficient fair notice 

### on its 

### face ifit 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 ofa pleading shall be simple, concise, and direct."). In recent years, short and concise pleading has become the norm, since detailedpleading is "risky" and "invites a pre-answer motionto dismiss premised onthe very detail so gratuitously supplied." Baicker-McKee, 

### supra, at**365~** Intricately detailed factual allegations are not necessary, norneed pleaders factually allege a primafacie case ... The Rules rely on discovery and summaryjudgment, rather than pleadings, to·flesh outthe 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 ownrules, 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-wouldbe "instructive" in administrative civil penalty cases. Id.
6 The first prong ofFed. R. Civ. P. 8(a) is not applicable, since it requires a showing offederal courtjurisdiction, which is not necessary in FAA civil penalty proceedings. Page 5of17

### Id. at 361. In addition, Federal Rule ofCivil Procedure Rule 8(e) requires that pleadings, even if · short and general in construction, be construed by the court "so as to dojustice." Fed. R. Civ. P. 8(e). Pleadings are therefore "liberally construed" when considering whether or not an opposing party has received sufficient "fairnotice" ofa claim. Baicker-McKee, 

### supra, at 382. 3. Underlying Legal Sufficiency ofPleading In the instant case, the Respondent also included aplea for reliefunder 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 ofmotions 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 ofCivil Procedure Rule 12(b).7 Typically, a party moving to dismiss a complaintby challenging the 

### legal sufficiency ofpleading is making a Rule 12(b)(6) motion, which is a request to dismiss a pleading for "failure to state a claimupon which reliefcan be granted." Baicker-McKee, 

### supra, at 458. A Rule l2(b)(6) review ofa pleading is different from reviewing a pleading for sufficient "fairnotice" on its face. A pleading may provide "fair notice" on its face, and yet still be fundamentally flawed for the lack ofeither 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 ofunnecessary pretrial and trial activity." Baicker-McKee, 

### supra, at 483 (footnote omitted).

7 It shouldbe noted, however, that Rule 12 "does not provide an exhaustive list ofall preliminary motions." BaickerMcKee, supra, at 455. Page 6of17Thus, a Rule 12(b)(6) motion teststhepleadings for legal sufficiency ofthe stated facts. A claim may be dismissed under Rule 12(b)(6) ifit lacks legal authority, orifthe "factual tale is implausible."Id. at 483. This is the modem form ofthe common law "demurrer" orexception to a pleading, where a respondent alleges that even ifthe pleading is true as stated, the respondent should not be compelled to go forward because no legal cause can beproven 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 oflaw and is directed to the sufficiency ofthe pleading, that is, it raises the question ofthe legal sufficiency ofthe facts stated. 71 C.J.S., § 291 (June, 2011) In essence, in a demurrer or a Rule l2(b)(6) motion, the movant asserts that even if everything stated inthe pleading is true, it is legally insufficient to constitute an action or



## .. defense. Id at§ 300. 4. Four Corners ofthe Complaint Typically, when challenging the legalsufficiency ofa pleading, the review ofthe pleading consists only ofreviewing the four comers ofthe 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 "fourcorners" ofa complaint will also include any documents attached to the complaint, orincorporated by reference to a complaint. Fed. R. Civ. P. lO(c); Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002) (Forpurposes ofRule 12(b)(6), "the complaintis deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it byreference." (quotingInt 'lAudiotextNetwork, Inc. v. Am. Tel. & Tel. Co., 62 F3d 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 orreferenced to the Complaint may be considered in a Rule 12(b)( 6) challenge, ifthe Court finds that such documents are "integral" to a case pleading

- and thereby arepart ofthe "fourcomers" ofthe pleading. In other words, ifextrinsic documents are so much a part ofthe

8 In somejurisdictions, demurrerpractice is still allowed. Therefore, it should be noted that the procedures of demurrer and a Rule 12(b)(6)motion for dismissal are distinctin that ifa demurrer is sustained, the case still pends until it is dismissed by separate order. 71C.J.S.,§231(June,2011) Page 7of17· pleading that they may be deemed a part ofthe pleading, they are considered. 71 C.J.S., § 295 (June, 2011)(where plaintiffrelies upon a written agreement to establish a cause ofaction, the court may consider such document when defendant annexes it to challenge the pleading). Thus, priorto considering any extrinsic document as part ofthe pleading on 

### aRule 12(b)(6) review, the court must determine whetherthe movant is correct that proffered extrinsic documents are an "integral"part ofthe pleading. 

### C. Discussion ofRespondent's Proffered EIRExtrinsic Material 1. Respondent's Caselaw Support In support ofits argument that the extrinsic EIR documents should be deemed "integral" to the FAA'spleadings, the Respondent cited to five (5) different cases. (Motion, 2-3.) Two (2) ofthese cases were not particularlyhelpful,9 since they involved allegations ofinsufficient 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 ofspecialized 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 orlaw, such as legal conditions already binding on the parties, or contracts in which the parties have previously agreed to terms and conditions. Forexample, a surety bond amount was the sole dispute inRLIIns. Co. v. AllStar Transp.lnc. 608 F.3d 848 (D.C. Cir. 2010). In this case, the D.C. Court ofAppeals found that

.Form BMC 84, which was used to identify all surety bond amounts, was a standardized federal form. Itwas required to be used in all actions where a surety bond was obtained. Form BMC 84 contained both "a set ofstandard 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 reXMSatellite 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). Page 8of17· the surety bond, had already been discussed and agreedto by the parties, when they executedthe 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 ofthe pleading. InInt 'lAudiotextNetwork, 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 conductingbusiness via international calling. Subsequently, one ofthe two companies filed suit, alleging breach ofthe agreement because ofShermanAntitrust violations. The plaintiff's amended complaint did not attach or incorporate theparties' contractual agreement, but the Second Circuit Cotirt considered it, because the amended complaint "relies heavily upon its terms and effect."Id. at 72. Despiteresolving all contractual "ambiguities" in the plaintiff's favor, the Court affirmed a Rule 12(b)(6) dismissal ofthe plaintiff's amended complaint, because it failed to plead a cause ofaction underthe contract's terms. Id. Seven (7}years later, the Second Circuit Courtrevisited the issue ofwhen 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 ofa 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 ofits Rule l2(b )(6) review. In discussing the distinction, the Chambers Courtfound extrinsic documents could only be considered "intergral" in a Rule 12(b)(6) motion ifthe plaintiffrelied 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 onthe terms and effect ofa document in drafting the complaint is a necessary prerequisite to the court's consideration ofthe document on a dismissal motion; mere notice orpossession is not enough. Id. at 153. Thus, in Chambers, contracts negotiated and signed by the parties metthe standard for consideration under the Rule 12(b)(6) motion. In contrast, proffered extrinsic material identified Page 9of17as "AFTRA Codes"

- whichhad not beenpreviously discussed and signed by all parties

- could not be considered "integral" to the pleadings, because the AFTRA Codes "inno way intended to prohibitbroaderprovisions ordefinitions" between the parties. Id. at 152. The 2002 Chambers ruling appears to follow well-established legal precedentthat has arisen out ofthe common lawdemurrerto pleadings. The scope ofchallenge to thepleadings cannotrely upon extrinsic documents, unless the court allows a special exceptionto utilize prior "admitted orundisputed facts" to "narrow and define the pleadings." 71 C.J.S., § 293 and 303 (June, 201 l)("allegations offact concerning the parties own acts in construing an instrument, such as a contract, are admitted.") 2. FAA Order 2150.3B As part ofits 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 ofproofconsist[ing] of

... each piece ofevidence 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 enforcementpolicies in "Order2150.3B, as well as the entire EIRprocess [would be rendered] meaningless." (Id.) In making this argument, the Respondent appears to assert that the content ofthe disclosed EIR should be deemed legally binding onthe FAA, similarto the way set terms found in a mandated standardized federal form, orthe agreed terms ofan executed contract, are undisputed and legally binding. Itis 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 implementedto 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" theyrecommend such action. FAA Order 2150.3B, Chapter 2, §4(b).

Page 10of17The Enforcement Investigative Report (EIR) is the means for documenting, assembling, organizing, and presenting all evidence and otherrelevant information obtained during an investigation. Because it is the record from which determinations ofviolation and sanctions are made, the report must be wellprepared, factual, and provide the proofrequired 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 eitherthe FAA'sregional 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 "awide range" oftools to address the circumstances ofeach 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 investigatorto "gather all material, relevant evidence that eitherproves ordisproves the potential violation." FAA Order-2150.JB, Chapter4, § 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 ofa 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 ofthe case that may not be identifiedinthe portion ofthe EIRthat the FAA voluntarily discloses to the Respondent. Legal counsel makes an independent determination ofthe appropriate sanction type and amount, giving due consideration to the sanction recommended bythe regional division. Iflegal counsel's assessment ofthe appropriate sanction differs with that ofthe program office, legal couns'el and the program office confer in an effort to reach an agreement. 

### Ifthey 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. Page 11of17initiated, legal counsel has the final authority to change the type ofaction 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 showthat the FAA's voluntarily disclosed portions ofthe 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 EIRcontained undisputed facts. 

### See, e.g., 71 C.J.S., § 303 (June, 2011). Based on FAA Order 2150.3B, the disclosed EIRdoes notpurport 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 thepleadings because ofpriorparty 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 enforcementpolicies, as to what (ifany) 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 evenreject, the EIR analysis and investigatorrecommendations in pursuing, ornot 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 ofthe 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 similarto a criminal prosecutor's discretion when reviewing police reports and determining what actions· should be taken that are legallysustainable. Itwas unclear, however, in reviewing FAA Order2l50.3B whether such independent decision making is recorded by FAA employees in the EIR, orever made available for public review. Page 12of17· 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 ofPractice governing this proceeding, 14 C.F.R. Part 13, Subpart G, make no mention ofthe EIR, nor indicate that the FAA is limited to presenting evidence only contained in the EIR, orthe disclosedportions ofthe 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 orbenefit, substantive orprocedural" that could be enforced by a party againstthe FAA. FAA Order 2150.38, Chapter 1, 

### §2(b) and (c). While this language in FAA Order 2150.3B is not dispositive ofthe issue, it certainly demonstrates that the FAA Administrator expressed anintent that FAA Order 2150.38 should not be deemed binding. Thus, based on the Rules ofPractice, 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 notpersuasive. As

## aresult, the this Court will not reach orconsider the extrinsic facts that both parties discuss and dispute in their materials. 13 

### D. Respondent's Motion For Dismissal on Pleading Despite the fact thatthe Respondent's attached portions ofthe disclosed EIRwill not be considered, the Court must still address the Respondent's motion for a sufficiencyreview ofthe FAA'spleadings.

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

### I.) As noted above, a review ofthe four comers ofthe Complaintrequired by 14 C.F.R.

12 Typically, the FAA withholds certain parts ofthe record pursuant to FAA Order2150.3B, Chapter2, § 8(d), which may then be subject to a motion for disclosure during litigation. See, e.g., In re: AirborneMaintenance 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 neednot convert the Rule 12(b)(6) motion into a summary judgmentproceeding, as required by Rule 12(d). See, e.g., Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002).

. Page 13of17**~§** 13.218(f)(l) and 14 C.F.R. § 13.218(£)(2) must first address the "fairnotice" sufficiency ofthe FAA's pleading. 1. Sufficient "FairNotice" on Face ofthe Pleading As a general rule, courts should adjudicate cases ontheir merits. 27 Fed. Proc. 

### L. Ed. 62.16 (2013). When a pleading is challenged and reviewed for legal sufficiency, the courtmust 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 inthe lightmost 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 ofan aviation safety statutory or regulatory provision. Rather, the Respondent agrees that the Complaint clearly alleges that the Respondent mayhave 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 ofthat safety violation allegation, and also identifies legal support for a proposed civil penalty, as well as a proposed total amount ofcivil penalty for the safety violations. Thus, pursuant to 14 C.F.R. 

### § 13.218(f)( 1 ), the content ofthe FAA's Complaint on its face provides sufficient facts and law so that the Respondent had fair notice ofthe FAA's claim ofviolations, 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 ofthe Complaint demonstrates that the FAA provided "fair notice" to the Respondent on the face ofthepleading ofthe FAA's claims.

14 As noted earlierherein, the parties appear to disagree as to the number ofviolations alleged (i.e., two v. three). However, this may_be clarified through discovery exchange, orby a respondent motion for a more definite statement pursuant to 14 C.F.R. § 1J.218(t)(3). Page 14of162. Legal Sufficiency ofPleading The focus ofthe Respondent's Motion, however, was on a review ofthe underlying legal sufficiency ofthe pleading, equivalent to a Rule 12(h)(6) motion. As noted earlier, the Respondent's Motionrelied heavily on the proffered extrinsic EIR materials, which will not be considered herein. Nevertheless, a briefreview for underlying legal sufficiency will be presented, considering only the content within the four comers ofthe FAA's Complaint. In this review, the court must also construe the pleading liberally, with all inferences made in favor ofthepleading 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 reliefthat is plausible on its face."Ashcroftv. Iqbal, 556 U.S. 662, 678 (2009) (quoting BellAtlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). See also, 71 C.J.S., 

### §245 (June, 201 l)("itmust appear with certainty that the law permits no recovery, and all doubt must be resolved in favor ofrefusing to sustain the objection.") Even ifthe court doubts whether the FAA will be able to prove all ofthe necessary factual allegations in support ofits 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 plaintiffcanprove no set of

facts which would entitledhim to relief." Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). [A]lthough a plaintiffneed not set out inprecise 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 ofaverment, and the facts inthe Complaint, although short and concise, are sufficient to support the regulatory violation as alleged. Page 15of16The FAAhas further claimed a total penalty of$14,375 for the alleged violations, onthe basis of49 U.S.C. 

### §46301(a)-(d). Interestingly, neitherpartypointed outthatthe FAA alleged that the maximum civil penalty for each violation, pursuant to 49 U.S.C. 

### §46301(a)-(d), was "1,100. (Complaint, 2.) 

### Ifthis is true, then the FAA's calculation ofa 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 ofthe pleading rests on all ofthe averments ofthe pleading, notjustfrom an isolated allegation. 71 C.J.S., 

### § 124 (June, 2011). In addition, the liberal construction ofthe pleading, "with the view ofsustaining it"means that the potential error ofthe cited $1, 100 maximum may be cured by othermeans without dismissal. 

### Id. at 126 (matters ofform do not invalidate the pleading). Therefore, the Respondent's motion for dismissal onthe pleadings, for insufficiency (or failure to state a claim upon whichreliefmaybe granted), must be denied. E. Conclusion Pursuant to 14 

### C.F.R. §§ 13.205, and afterreviewing 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 ofthe FAA'spleadings. 2. The Respondent's Motion to Dismiss the FAA's Complaint onthe 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 Answertothe Complaintnot later than ten (10) days after service·ofthis Order.

Attachment: Service List Page 16of16DocketNo. FAA-2014-0814 (Civil Penalty Action)



### SERVICE LIST - BY U.S. MAIL ORIGINAL & ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite2Wl000 15

Mr. Christopher R. Stevenson Complainant's Counsel Office ofthe RegionalCounsel, 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 DeltaAir 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 LawJudge Office ofHearings, M-20 ONE COPY

U.S. Department ofTransportation 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.