Legal Department 

1700 Pennsylvania Avenue, NW 

Suite 950 

Washington, DC 20006 

FecFx, Express RECEIVED 

April23, 2015 

Federal Aviation Administration 

600 Independence Ave., NW 

Wilbur Wright Building-Suite 2W1 000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

APR 2 4 2015 

HEARING DOCKET 

Re: In the Matter of Federal Express Corporation 

FDMS 2014-0864 (FAA Case No. 2014SW700042) 

Dear Hearing Docket Clerk: 

Please find enclosed an original and one copy of Federal Express Corporation's Answer to 

Complainant's Motion for Decision and Order Denying Complainant's Motion for Decision, 

which we are filing in the above referenced matter. 

Copies of this Jetter, motion and order are also being served via Federal Express on the FAA Office of 

Regional Counsel and the Administrative Law Judge assigned to this matter. 

Sincerely, 

FEDERAL EXPRESS CORPORATION 

/;? ~ 

~::g~ ;l . Attorney for Respondent 

1700 Pennsylvania Ave., NW 

Suite 950 

Washington, DC 20006 

202-393-9285 

greg.stofko@fedex.com 

Enclosure 

Cc: Mr. James Archier, FAA Office of the Regional Counsel 

The Honorable Richard C. Goodwin 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS R 

FEDERAL AVIATION ADMINISTRATION · 

APR 2 4 2015 

) 

D 

IN THE MATTER OF: l HEARING DOCKET 

FEDERAL EXPRESS CORPORATION 

Respondent. 

The Honorable Richard C. Goodwin 

) FAA Case No. 2014SW700042 

) (Civil Penalty Action) 

) 

) 

) FDMS no. 2014-0864 

) 

RESPONDENT'S ANSWER TO COMPLAINT'S MOTION FOR DECISION 

Respondent, Federal Express Corporation d/b/a FedEx Express ("Respondent" or 

"FedEx"), by counsel and pursuant to section 13.218 (d) of the Ru1es of Practice in FAA Civil 

Penalty Proceedings, 14 C.F.R. § 13.218, hereby answers the Federal Aviation Administration's 

("FAA" or "Complainant") Motion For Decision and moves that Complainant's motion be 

denied. In support of this relief, Respondent states the following: 

I. STANDARD FOR MOTION FOR DECISION 

The standard for granting a motion for decision is set forth in 14 C.F.R. § 218 (f) (5), 

which provides in relevant part: 

The administrative law judge shall grant a party's motion for decision if the pleadings, 

depositions, answers to interrogatories, admissions, matters that the administrative law 

judge has officially noticed, or evidence introduced during the hearing show that there is 

no genuine issue of material fact and that the party making the motions is entitled to a 

decisions as a matter oflaw. The party making the motion for decision has the 
burden of showing that there is no genuine issue of material fact disputed by the 

parties. (Emphasis added). 

A motion for decision is akin to a motion for sunnnary judgment. The National 

Transportation Safety Board (NTSB) 1 considers the Federal Rules of Civil Procedure to be 

instructive in determining whether disposition of a case via sunnnary judgement is appropriate. 

The NTSB recognizes that federal courts grant sunnnary judgment when no genuine issues of 

material fact exist. Administrator v. Wilkie, NTSB Order No. 5565 at 5 n. 1 0? To defeat a 

motion for surmnary judgment, the non-moving party must provide more than a general denial of 

the allegations. Administrator v. Eitan Leaschauer NTSB Order No. EA-5723 (2014). 

Administrator v. Robie Lynn Gibbs, NTSB Order No. EA-5638, at 5 (2012) citing Administrator 

v. Hendrix, NTSB or No. EA-5363 at 5-6 n.8 (2008) citing Administrator v. Doll, 7 NTSB 1294, 

1296 n. 8 (2008). 

As more fully discussed below, Respondent contends that the Complainant has failed to 

meet its burden of proof because there are numerous genuine issues of material facts disputed by 

the parties. 

1 While NTSB decisions are not precedential in proceedings nnder the FAA's Rules of Practice in FAA Civil 

Penalty Proceedings, they are instructive. 

2 Celotex Corp. v. Catrett, 477 U.S. 317, 322·-24 (1986). A genuine issue exists if the evidence is sufficient for a 

reasonable fact-finder to return a verdict for the nonmoving party. Anderson v. Libertv Lobby, Inc., 477 U.S. 242, 

255-56 (1986). An issue is material wben it is relevant or necessary to the ultimate conclusion of the case.J.sLat 

248. 
II. ARGUMENT 

The issue at the heart of this case is whether F ec!Ex should have known that the shipment 

in question contained hazardous materials. Complainant's position is that the minimal markings 

on the package should have alerted FedEx that hazardous materials were present. Respondent's 

position is that the markings did not give such notice when viewed in light of all relevant 

circumstances. It is these relevant circumstances that give rise to genuine issues of material facts 

and Respondent is entitled to present evidence of the surrounding circumstances to the factfinder, at a hearing, so that the fact-fmder can determine what is reasonable in light of the 

circumstances. 

Complainant correctly characterizes this matter as a constructive knowledge case.3 As 

such, in order to find a violation of the Department of Transportation Hazardous Materials 

Regulations (HMR), 49 C.P.R. parts 171 - 177, Complainant must prove, by a preponderance of 

the evidence, that Respondent acted "knowingly. "

4 As Complainant has failed to allege there 

was any actual knowledge on the part of Respondent, Complainant must prove that "a reasonable 

person acting in the circumstances and exercising reasonable care would have that knowledge." 

Whether in this specific instance Respondent, acting in the circumstances and exercising 

reasonable care, should have known that the package contained hazardous materials requires an 

examination of the surrounding circumstances. Accordingly, whether the circumstances in this 

3 Motion For Decision at 6-7. 

4 49 USC § 5123(a) (1) (A) and (B). Under § 5123 A person acts knowingly 

when-

( A) the person has actual knowledge of the 

facts giving rise to the violation; or 

(B) a reasonable person acting in the circumstances 

and exercising reasonable care would 

have that knowledge. See also; 49 C.F.R. 171.2 (f) 
case constitute constructive knowledge is a question of fact. 5 An examination of Complainant's 

motion, Respondent's Answer to the Complaint, and discovery responses reveals a multitude of 

genuine issues of material facts that are disputed by the parties. Many of the disputed material 

facts are discussed immediately below. 

A. Disputed Material Facts in Complainant's Motion for Decision 

1. Complainant asserts that Respondent admitted the facts in Section III of the Motion 

for Decision. While Respondent admits that the shipment contained the markings described in 

Section III of the Motion, Respondent denies that the package in question contained indicators 

necessary for Respondent to reasonably believe that the package contained hazardous materials, 

or to further question the shipper regarding the contents of the package. Complainant's wholly 

conclusory assertions that Respondent failed to make a "reasonable" inquiry and the series of 

"red flags" giving rise to that duty pointed to in its Analysis section of the Motion for Decision6 

have no support in the record. There is no record established that Fec!Ex failed to make an 

inquiry, or what a reasonable inquiry might be under the circumstances. Likewise, there is no 

record establishing that these so called "uncontroverted facts" are red flags in light of the facts 

and circumstances surrounding the shipment. Only through a hearing in which both parties 

introduce evidence, can a fact-finder reconcile the genuine issues of material fact that are in 

dispute in this manner. What is a reasonable inquiry under the facts and circumstances? Do any 

of these markings, in light of the surrounding circumstances, indicate the presence of hazardous 

materials? Where was the package tendered? Has the company ever shipped hazardous 

5 Formal Interpretation of Regulations, 63 Fed. Reg. 30411 (June 4, 1998). 

6 Motion for Decision at 7. 
materials by air before? Did the shipper indicate that the shipment was not hazardous materials 

in any way? It is the Complainant's burden to show that there are no material questions of fact 

for their motion to succeed, a standard that it has not met. The standard in civil penalty actions is 

not one of strict liability, whereby the Complainant can point to a series of markings on a 

package as conclusive proofthat Respondent violated the regulations. As noted above, the 

standard is whether a reasonable person acting in the circumstances would have knowledge that 

this package contained hazardous materials, and in order to make that determination the fact 

finder must weigh the factual evidence regarding the surrounding circumstances. 

2. Complainant asserts that Respondent admitted the facts in Section II, paragraphs 2- 9 

of the Motion. Complainant has the burden of demonstrating that these innocuous markings are 

somehow an indication of hazardous materials, and Respondent has denied such assertion. 7 

Further, Complainant has admitted that the word "Paint" can refer to non-hazardous materials. 8 

Whether any of these markings, separately or collectively, indicate the presence of hazardous 

materials is a genuine issue of material fact that is disputed by the parties. 

3. Complainant asserts that Respondent admitted the facts in Section II, paragraph 10 of 

the Motion-"Handwritten on the exterior of one side of the fiberboard box assigned airway bill 

tracking number 797609866023 was the language TFD-654N Freedom Fishing Blue A-2888." 

Complainant has the burden of demonstrating that this marking is somehow an indication of 

hazardous materials, and Respondent has denied such assertion9 Significantly, Complainant 

did not allege this fact in the Complaint. As a result, this admission cannot be used to prove any 

7 Respondent's Response to Complainant's First Set of Request for Admissions, Request No.3 (attached) 

8 See Complainant's Response to Respondent's First Set of Admissions, Request No.5 (attached). 

9 Respondent's Response to Complainant's First Set of Request for Admissions, Request No.3 
material facts necessary to prove that Respondent violated the HMR. In the Matter of Lisa 

Gamache-Wortman, at 7, FAA Order No. 2012-4, May 22, 2012. 

4. Complainant asserts that Respondent admitted the facts in Section II, paragraph 11 of 

the Motion-" Printed on the exterior of one side of the fiberboard box assigned airway bill 

tracking number 797609866023 was the language 'THIS SIDE UP."' Complainant has the 

burden of demonstrating that this is an indication of hazardous materials, and Respondent has 

denied such. 10 Significantly, Complainant did not allege this fact in the Complaint. As a result, 

this admission cannot be used to prove any material facts necessary to prove that Respondent 

violated the HMR. !d.. 

5. In the last paragraph. of page 5, Section V of its motion, Complainant asserts that "The 

FedEx Office in Austin assigned FedEx Express Airway bill tracking number 797609866023 to 

the shipment." As authority for this assertion, Complainant cites paragraphs 6, 7, and 8 of the 

Complaint. Complainant, however, did not allege that the F edEx Office in Austin assigned 

FedEx Express Airway bill tracking number 797609866023 to the shipment in the Complaint. 11 

As a result, this assertion cannot be used to prove any material facts necessary to prove that 

Respondent violated the HMR. 

6. Since Respondent's answer raises numerous genuine issues of material facts that are 

disputed by the parties, Respondent will not further address Complainant's analysis of the civil 

penalty amount in their Motion for Decision other than to state that it is premature to address the 

sanction amount, and several of Complainant's "determinations" are subjective and not based on 

information currently in the record. 

10 Respondent's Response to Complainant's First Set of Request for Admissions, Request No. 3 

11 See Complainant's Complaint, Section I, paragraph 7 ("The shipment was assigned FedEx Express Airway bill 

tracking number 797609866023".) (Emphasis Added) 
B. Disputed Material Facts iu the Complaint 

1. Respondent denied the allegations contained in Section I, paragraph I of the 

Complaint, which provides that "On or about January 10,2014, Federal Express Corporation 

('FedEx') failed to inspect and improperly accepted a hazardous materials shipment for air 

transportation from Austin, Texas to Fort Smith, Arkansas." Respondent has not admitted this 

allegation on the record and is prepared to provide evidence at the hearing that it fulfilled all of 

its obligations under the Federal hazardous materials law and the HMR in that under the facts 

and circumstances of this case, it did not have a duty to inspect the shipment at issue or a duty to 

further question the shipper regarding the contents of the shipment. Therefore, Respondent did 

not fail to inspect and did not improperly accept the shipment that is the subject of this case. 

2. Respondent denied the allegations contained in Section I, paragraph 10 of the 

Complaint. Specifically, Respondent denied that it "lmowingly" accepted hazardous materials 

for transportation by air in commerce when the material was not properly classed, described, 

packaged, marked, labelled, and in condition for shipment as required or authorized by 

applicable requirements of Subchapter C of the HMR. Respondent has not admitted this 

allegation on the record and is prepared to provide evidence at the hearing that under the facts 

and circumstances of this case, it did not "knowingly" accept the improperly prepared shipment 

of hazardous materials that is the subject of this case for transportation in air commerce. 

3. Respondent denied the allegations contained in Section I, paragraph 11 of the 

Complaint. Specifically, Respondent denied that it "knowingly" transported hazardous materials 

for transportation by air in commerce when the hazardous materials were not transported in 
accordance with the applicable requirements of Subchapter C of the HMR. Respondent has not 

admitted this allegation on the record and is prepared to provide evidence at the hearing that 

under the facts and circumstances of this case, it did not"knowingly" transport in air commerce 

the improperly prepared shipment of hazardous materials that is the subject of this case. 

4. Respondent denied the allegations contained in Section I, paragraph 12 of the 

Complaint. Specifically, Respondent denied that it "knowingly" accepted hazardous materials 

for transportation aboard an aircraft when the hazardous materials were not described and 

certified on a shipping paper prepared in duplicate in accordance with part 172 or as authorized 

by subpart C of part 171 of subchapter C of the HMR. Respondent has not admitted this 

allegation on the record and is prepared to provide evidence at the hearing that under the facts 

and circumstances of this case, it did not "knowingly" accept the improperly prepared shipment 

of hazardous materials that is the subject of this case for transportation aboard an aircraft. 

5. Respondent denied the allegations contained in Section I, paragraph 13 of the 

Complaint. Specifically, Respondent denied that it "knowingly" accepted hazardous materials 

for transportation aboard an aircraft when the hazardous materials were not marked and labeled 

in accordance with subparts D and E of part 172 or as authorized by subchapter C of the HMR. 

Respondent has not admitted this allegation on the record and is prepared to provide evidence at 

the hearing that under the facts and circumstances of this case, it did not "knowingly" accept the 

improperly prepared shipment of hazardous materials that is the subject of this case for 

transportation aboard an aircraft. 

6. Respondent denied the allegations contained in Section II, paragraph 14. a. of the 

Complaint that it violated section 171.2 (e) of the HMR. Respondent has not admitted this 

allegation on the record and is prepared to provide evidence at the hearing that under the facts 
and circumstances of this case, it did not "knowingly" accept the improperly prepared shipment 

of hazardous materials that is the subject of this case for transportation in air commerce, in 

violation of 49 C.F.R. §171.2 (e). 

7. Respondent denied the allegations contained in Section II, paragraph 14. b. of the 

Complaint that it violated section 171.2 (f) of the HMR. Respondent has not admitted this 

allegation on the record and is prepared to provide evidence at the hearing that under the facts 

and circumstances of this case, it did not "knowingly" transport hazardous materials when the 

hazardous materials was not transported in accordance with the applicable requirements of 

subchapter C of the HMR, in violation of violation of 49 C.F.R. § 171.2 (f). 

8. Respondent denied the allegations contained in Section II, paragraph 14. c. of the 

Complaint that it violated section 175.30 (a) (2) of the HMR. Respondent has not admitted this 

allegation on the record and is prepared to provide evidence at the hearing that under the facts 

and circumstances of this case, it did not "knowingly" accept hazardous materials for 

transportation aboard an aircraft when the hazardous materials were not described and certified 

on a shipping paper prepared in duplicate in accordance with part 172 or as authorized by subpart 

C of part 171 of subchapter C ofthe HMR, in violation of 49 C.F.R. § 175.30 (a) (2). 

9. Respondent denied the allegations contained in Section II, paragraph 14. d. of the 

Complaint that it violated section 175.30 (a) (3) of the HMR. Respondent has not admitted this 

allegation on the record and is prepared to provide evidence at the hearing that under the facts 

and circumstances of this case, it did not "knowingly" accept hazardous materials for 

transportation aboard an aircraft when the hazardous materials were not marked and labelled in 

accordance with subparts D and E of part 1 72 or as authorized by subpart C of part 171 of 

subchapter C of the HMR, in violation of 49 C.F.R. § 175.30 (a) (3). 
C. Disputed Material Facts in Complainant's First Set of Admissions 

I. Respondent, in its Response to Complainant's First Set of Requests for Admissions, 

Request No. 1, denied that FedEx Office in Austin, Texas, had a duty to inspect the shipment in 

question. FedEx Office does not accept any hazardous materials, as defined in 49 C.P.R. parts 

171 - 177, for transportation on behalf ofFedEx Express. Moreover, the FedEx Office facility 

in Austin, Texas had clear, prominent signage stating that dangerous goods are not accepted at 

Fec!Ex Office and the shipment had a shipping label without indication that it contained 

hazardous materials. Therefore, Respondent did not have a duty to inspect the shipment in 

question. 

2. Respondent, in its Response to Complainant's First Set of Requests for Admissions, 

Request No. 2, denied that the customer service agent at Fec!Ex Office in Austin failed to 

question the shipper. This is a genuine issue of material fact disputed by the parties. 

3. Respondent, in its Response to Complainant's First Set of Requests for Admissions, 

Request No. 3, denied that the shipment had hazardous materials indicators, a disputed fact that 

is significant in the context ofthis case. Complainant has the burden of demonstrating that the 

markings on the shipment are an indication of hazardous materials, and Respondent has denied 

such. 12 Whether any of these markings, or the collective total, indicates the presence of 

hazardous materials is a genuine issue of material fact that is disputed by the parties. 

4. Respondent, in its Response to Complainant's First Set of Requests for Admissions, 

Request No. 6, admitted that the orientation arrows were printed on the exterior of one side of 

the fiberboard box that is the subject of this case, but denied that the orientation arrows are the 

12 Respondent's Response to Complainant's First Set of Request for Admissions, Request No.3 
hazardous materials orientation arrows prescribed by 49 C.P.R. § 172.312. Section 172.312 

requires the orientation arrows to be on two opposite vertical sides of the packaging and to be 

either black or red on white or other suitable contrasting background. 13 The orientation arrows 

in the subject case were blue, and were on only one vertical side of the packaging. Respondent 

respectfully requests the ALJ to take judicial notice of§ 172.312. Complainant has the burden of 

demonstrating that the arrows on the shipment are an indication of hazardous materials, and 

Respondent has denied such. 14 Whether the orientation arrows are an indication of hazardous 

materials is a genuine issue of material fact that is disputed by the parties. 

5. Respondent, in its Response to Complainant's First Set of Requests for Admissions, 

Request No. 10, denied that the shipment in question travelled on an aircraft and that it was in air 

commerce. Respondent is prepared to offer evidence at the hearing that the subject shipment did 

not travel on board an aircraft that was In air commerce. Complainant has the burden of 

demonstrating that the shipment traveled in air commerce, and Respondent has denied such. 15 

This is a genuine issue of material fact that is disputed by the parties. 

13 49 C. F. R. § I 72.312, Liquid hazardous materials in non-bulk packagings, provides in pertinent part: 

(a) Except as provided in this section, each non-bulk combination package having inner packagings containing 

liquid hazardous materials, single packaging fitted with vents, or open cryogenic receptacle intended for the 

transport of refrigerated liquefied gases must be: 

(2) Legibly marked with package orientation markings that are similar to the illustration shown in this paragraph, 

on two opposite vertical sides of the package with the arrows pointing in the correct upright direction. The 

arrows must be either black or red on white or other suitable contrasting background and commensurate 

with the size of the package. Depicting a rectangular border around the arrows is optional. (Emphasis added.) 

14 Respondent's Response to Complainant's First Set of Request for Admissions, Request No.3 

15 Respondent's Response to Complainant's First Set of Request for Admissions, Request No. 10 
III. CONCLUSION 

In view of the above, Respondent has shown that numerous genuine issues of material 

facts are in dispute. Accordingly, the Complainant, as the moving party, has not met its burden 

and the motion for decision should be denied. 

Dated April23, 2015 

Respectfully submitted, 

Federal Express Corporation 

By: ~~x(____---.~~:::-­

Greg So o 

Attorney for Res ndent 

1700 Pennsylvania Ave., NW 

Suite 950 

Washington, DC 20006 

(202) 393-9285 

greg.stofko@fedex.com 
CERTIFICATE OF SERVICE 

I hereby certify that the foregoing document has been sent via Federal Express to the 

following: 

Federal Aviation Administration 

600 Independence Avenue, SW 

Wilbur Wright Building- Suite 2W1000 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Mr. James Archier, Complainant's Counsel 

Federal Aviation Administration 

Office of the Regional Counsel 

2601 Meacham Boulevard 

Fort Worth, Texas 76137 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-5121 Staff Assistant 

FAX:202-366-7536 

Dated this 23rd day of April, 2015. 

By:~~~~~~r Greg t o 

Attorney for Res ndent 

1700 Pennsylvanm Ave., NW 

Suite 950 

Washington, DC 20006 

(202) 393-9285 

greg.stofko@fedex.com 
U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

FEDERAL AVIATION ADMINISTRATION 

lN THE MATTER OF: 

) 

) 

FEDERAL EXPRESS CORPORATION 

Respondent. 

The Honorable Richard C. Goodwin 

) FAA Case No. 2014SW700042 

) (Civil Penalty Action) 

) 

) 

) FDMS no. 2014-0864 

) 

ORDER DENYING COMPLAINANT'S MOTION FOR DECISION 

The Court, having reviewed Complainant's Motion For Decision and Respondent's 

Answer to Complainant's Motion for Decision, and being otherwise fully advised on the 

premises; 

IT IS HEREBY ORDERED that Complainant's Motion For Decision is denied. 

Administrative Law Judge 

Date: ---------------------