Legal Department 1700 Pennsylvania Avenue, NW Suite 950 Washington, DC 20006 

# FecFx, Express 

# RECEIVED
April23, 2015 Federal Aviation Administration 600 Independence Ave., NW Wilbur WrightBuilding-Suite 2W1000 Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 

## APR 24 2015 

## HEARING DOCKET

Re: In the Matter ofFederal Express Corporation FDMS 2014-0864 (FAA Case No. 2014SW700042) Dear Hearing Docket Clerk: Please find enclosed an original and one copy ofFederal Express Corporation's Answer to Complainant's Motion for Decision and OrderDenying Complainant's Motion for Decision, whichwe are filing in the above referenced matter. Copies ofthis Jetter, motion and order are also being served via Federal Express onthe 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 ofthe Regional Counsel The Honorable Richard C. GoodwinU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS 

# R FEDERAL AVIATION ADMINISTRATION · 

## APR 24 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/aFedEx Express ("Respondent" or "FedEx"), by counsel and pursuantto section 13.218 (d) ofthe Ru1es ofPractice inFAA Civil Penalty Proceedings, 14 C.F.R. § 13.218, hereby answers the Federal Aviation Administration's ("FAA" or "Complainant") Motion ForDecision andmoves that Complainant's motion be denied. In support ofthis relief, Respondent states the following:

I. STANDARD FORMOTION FORDECISION The standard for granting a motionfor decision is set forth in 14 C.F.R. § 218 (f) (5), whichprovides inrelevant part: The administrative lawjudge shall grant a party's motion for decisionifthe pleadings, depositions, answers to interrogatories, admissions, matters that the administrative law judgehas officially noticed, or evidence introduced during the hearing showthat there is
no genuine issue ofmaterial fact and thatthe party making the motions is entitled to a decisions as a matter oflaw. The party making the motion for decision has theburden ofshowing that there is no genuine issue ofmaterial fact disputed by the parties. (Emphasis added). A motion for decision is akin to a motion for sunnnary judgment. TheNational Transportation Safety Board (NTSB) 1 considers the Federal Rules ofCivil Procedure to be instructive in determining whether disposition ofa case via sunnnaryjudgementis appropriate. The NTSB recognizes that federal courts grant sunnnaryjudgment whenno genuine issues of material fact exist. Administrator v. Wilkie, NTSB OrderNo. 5565 at 5 n. 10? To defeat a motion for surmnaryjudgment, the non-moving partymust provide morethan 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) citingAdministrator
v. Hendrix, NTSB orNo. EA-5363 at 5-6n.8 (2008) citingAdministratorv. Doll, 

### 7NTSB 1294, 1296n. 8 (2008). As more fully discussed below, Respondent contends that the Complainanthas failed to meet its burden ofproofbecause there are numerous genuine issues ofmaterial facts disputed by the parties.

1 While NTSB decisions are not precedential in proceedings nnder the FAA's Rules ofPractice in FAA Civil Penalty Proceedings, they are instructive. 2 Celotex Corp. v. Catrett, 477 U.S. 317, 322·-24 (1986). A genuine issue exists ifthe 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 ofthe case.J.sLat 248.II. ARGUMENT The issue at the heart ofthis case is whether Fec!Ex should have known that the shipment in question containedhazardous materials. Complainant's position is that the minimal markings
onthe package shouldhave alerted FedExthathazardous materials were present. Respondent's positionis that the markings did not give such notice when viewed in light ofall relevant circumstances. Itis these relevant circumstances that give rise to genuine issues ofmaterial facts and Respondent is entitled to present evidence ofthe surrounding circumstances to the factfinder, at a hearing, so that the fact-fmder can determine what is reasonable in lightofthe circumstances. Complainant correctly characterizes this matter as a constructive knowledge case. 3 As such, in order to find a violation ofthe Department ofTransportation Hazardous Materials Regulations (HMR), 49 C.P.R. parts 171

- 177, Complainant mustprove, 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 ofRespondent, Complainant mustprove that "areasonable person acting in the circumstances and exercising reasonable care would have thatknowledge." Whether inthis specific instance Respondent, acting in the circumstances and exercising reasonable care, shouldhave known thatthe package contained hazardous materials requires an examination ofthe surrounding circumstances. Accordingly, whether the circumstances inthis

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 ofthe facts giving rise to the violation; or (B) a reasonable person acting inthe 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 offact. 5 An examination ofComplainant's motion, Respondent's Answer to the Complaint, and discovery responses reveals a multitude of genuine issues ofmaterial facts that are disputed by the parties. Many ofthe disputed material facts are discussed immediatelybelow.

A. Disputed Material Facts in Complainant's Motion for Decision 1. Complainant asserts that Respondent admitted the facts in SectionIII ofthe Motion for Decision. While Respondent admits that the shipment contained the markings described in SectionIII ofthe Motion, Respondent denies that the package in question contained indicators necessary for Respondent to reasonably believethatthe package contained hazardous materials,
or to further question the shipper regarding the contents ofthe package. Complainant's wholly conclusory assertions that Respondent failed to make a "reasonable" inquiry and the series of "redflags" giving rise to that duty pointed to in its Analysis section ofthe Motionfor 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 ofthe facts and circumstances surrounding the shipment. Only through a hearing inwhichbothparties introduce evidence, can a fact-finder reconcile the genuine issues ofmaterial fact that are in dispute in this manner. What is a reasonable inquiry under the facts and circumstances? Do any ofthese markings, in light ofthe surrounding circumstances, indicate the presence ofhazardous materials? Where was the package tendered? Has the company ever shipped hazardous

5 Formal Interpretation ofRegulations, 63 Fed.Reg. 30411 (June 4, 1998). 6 Motion for Decision at 7.materials by airbefore? Did the shipper indicate thatthe shipment was nothazardous materials in any way? Itis the Complainant's burden to show thatthere are no material questions offact for their motionto succeed, a standard that it has not met. The standard in civil penalty actions is not one ofstrict liability, whereby the Complainant can point to a series ofmarkings 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 containedhazardous materials, and in orderto make that determinationthe fact finder must weighthe factual evidence regarding the surrounding circumstances. 2. Complainant asserts that Respondent admitted the facts in Section II, paragraphs 2- 9 ofthe Motion. Complainanthas the burden ofdemonstrating that these innocuous markings are somehow an indication ofhazardous materials, and Respondent has denied such assertion.7 Further, Complainant has admitted thatthe word "Paint" canrefer to non-hazardous materials.8 Whether any ofthese markings, separately or collectively, indicate the presence ofhazardous materials is a genuine issue ofmaterial fact that is disputed by the parties. 3. Complainant asserts that Respondent admitted the facts in Section II, paragraph 10 of the Motion-"Handwritten onthe exterior ofone side ofthe fiberboard box assigned airway bill tracking number 797609866023 was the language TFD-654N Freedom Fishing Blue A-2888." Complainanthas the burden ofdemonstrating that this marking is somehow an indication of hazardous materials, and Respondent has denied such assertion9 Significantly, Complainant did not allege this fact inthe Complaint. As a result, this admission cannotbe usedto prove any

7 Respondent's Response to Complainant's First Set ofRequest for Admissions, Request No.3 (attached) 8 See Complainant's Response to Respondent's First Set ofAdmissions, Request No.5 (attached). 9 Respondent's Response to Complainant's First Set ofRequest for Admissions, Request No.3material facts necessary to prove that Respondent violated the HMR. 

### In the Matter ofLisa Gamache-Wortman, at 7, FAA OrderNo. 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 ofone side ofthe fiberboard box assigned airway bill tracking number 797609866023 was the language 'THIS SIDE UP."' Complainant has the burden ofdemonstrating that this is anindication ofhazardous 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 lastparagraph.ofpage 5, Section V ofits motion, Complainant asserts that "The FedEx Office inAustin assigned FedEx Express Airway bill tracking number 797609866023 to the shipment." As authority for this assertion, Complainant cites paragraphs 6, 7, and 8 ofthe Complaint. Complainant, however, did not allege that the FedEx Office in Austin assigned FedEx Express Airwaybill tracking number 797609866023 to the shipment in the Complaint. 11 As a result, this assertion cannotbe usedto prove any material facts necessary to prove that Respondent violated the HMR. 6. Since Respondent's answer raises numerous genuine issues ofmaterial facts that are disputed bythe parties, Respondent will not further address Complainant's analysis ofthe civil penalty amount in their Motion for Decision other than to state that it is premature to address the sanction amount, and several ofComplainant's "determinations" are subjective and notbased on information currently in the record.

10 Respondent's Response to Complainant's First Set ofRequest 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 SectionI, paragraph I ofthe Complaint, whichprovides 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 itfulfilled all of its obligations under the Federal hazardous materials law and the HMRinthat under the facts and circumstances ofthis case, it did not have a duty to inspect the shipment at issue or a duty to further question the shipper regarding the contents ofthe shipment. Therefore, Respondent did not fail to inspect and did not improperly accept the shipment that is the subject ofthis case. 2. Respondent denied the allegations contained in Section I, paragraph 10 ofthe 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 ofSubchapter C ofthe HMR. Respondent has not admitted this allegation onthe record and is prepared to provide evidence at thehearingthat under the facts and circumstances ofthis case, it did not "knowingly" accept the improperly prepared shipment ofhazardous materials that is the subject ofthis case for transportation inair commerce. 3. Respondent denied the allegations contained in Section I, paragraph 11 ofthe Complaint. Specifically, Respondent denied that it "knowingly" transported hazardous materials for transportation by air in commerce when the hazardous materials were not transported inaccordance withthe applicable requirements ofSubchapter C ofthe HMR. Respondent has not admittedthis allegation on the record and is prepared to provide evidence at the hearing that under the facts and circumstances ofthis case, it did not"knowingly" transport in air commerce the improperlyprepared shipment ofhazardous materials that is the subject ofthis case. 4. Respondent denied the allegations contained in Section I, paragraph 12 ofthe Complaint. Specifically, Respondent denied that it "knowingly" accepted hazardous materials for transportation aboard an aircraft whenthe hazardous materials were not described and certified on a shippingpaperpreparedin duplicate in accordance withpart 172 or as authorized by subpart C ofpart 171 ofsubchapter C ofthe 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 ofthis case, it did not "knowingly" accept the improperlyprepared shipment ofhazardous materials that is the subject ofthis case for transportation aboard an aircraft. 5. Respondent denied the allegations contained in Section I, paragraph 13 ofthe Complaint. Specifically, Respondent denied that it "knowingly" accepted hazardous materials for transportation aboard an aircraft whenthe hazardous materials were not marked and labeled in accordance with subparts D and E ofpart 172 or as authorized by subchapter C ofthe HMR. Respondent has not admitted this allegation onthe record and is prepared to provide evidence at thehearingthat underthe facts and circumstances ofthis case, it did not "knowingly" acceptthe improperly prepared shipment ofhazardous materials that is the subject ofthis case for transportation aboard an aircraft. 6. Respondent denied the allegations contained in Section II, paragraph 14. a. ofthe Complaintthat it violated section 171.2 (e) ofthe HMR. Respondent has not admitted this allegation onthe record and is preparedto provide evidence at the hearingthat under the factsand circumstances ofthis case, it did not "knowingly" accept the improperly prepared shipment ofhazardous materials that is the subject ofthis case for transportation in air commerce, in violation of49 C.F.R. §171.2 (e). 7. Respondent denied the allegations contained in SectionII, paragraph 14. b. ofthe Complaint that it violated section 171.2 (f) ofthe 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 ofthis case, it did not "knowingly" transport hazardous materials when the hazardous materials was not transported in accordance withthe applicable requirements of subchapter C ofthe HMR, in violation ofviolation of49 C.F.R. §171.2 (f). 8. Respondent denied the allegations contained in Section II, paragraph 14. c. ofthe Complaintthat it violated section 175.30 (a) (2) ofthe 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 ofthis 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 withpart 172 or as authorized by subpart C ofpart 171 ofsubchapter C ofthe HMR, in violation of49 C.F.R. 

### § 175.30 (a) (2). 9. Respondent denied the allegations contained in Section II, paragraph 14. d. ofthe Complaintthat it violated section 175.30 (a) (3) ofthe HMR. Respondent has not admitted this allegation onthe record and is prepared to provide evidence at the hearing that under the facts and circumstances ofthis 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 ofpart 172 or as authorized by subpart C ofpart 171 of subchapter C ofthe HMR, in violation of49 C.F.R. 

### § 175.30 (a) (3).C. Disputed Material Facts in Complainant's First Set ofAdmissions I. Respondent, in its Response to Complainant's First Set ofRequests for Admissions, RequestNo. 1, denied that FedEx Office in Austin, Texas, had a duty to inspectthe shipment in question. FedEx Office does not accept any hazardous materials, as defined in 49 C.P.R. parts 171

- 177, for transportation on behalfofFedEx 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 indicationthatit contained hazardous materials. Therefore, Respondent did not have a duty to inspectthe shipment in question. 2. Respondent, in its Response to Complainant's First Set ofRequests 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 ofmaterial fact disputed by the parties. 3. Respondent, inits Response to Complainant's First Set ofRequests for Admissions, Request No. 3, denied that the shipmenthad hazardous materials indicators, a disputed fact that is significant inthe context ofthis case. Complainant has the burden ofdemonstrating that the markings on the shipment are an indication ofhazardous materials, and Respondent has denied such. 12 Whether any ofthese markings, or the collective total, indicates the presence of hazardous materials is a genuine issue ofmaterial fact that is disputed by the parties. 4. Respondent, in its Response to Complainant's First Set ofRequests for Admissions, RequestNo. 6, admitted that the orientation arrows were printed on the exterior ofone side of the fiberboard boxthat is the subject ofthis case, but denied that the orientation arrows are the

12 Respondent's Response to Complainant's First Set ofRequest for Admissions, Request No.3hazardous materials orientation arrowsprescribed by 49 C.P.R. § 172.312. Section 172.312 requires the orientation arrows to be on two opposite vertical sides ofthe packaging and to be either black orred on white or other suitable contrasting background. 13 The orientation arrows inthe subject case were blue, and were on only one vertical side ofthe packaging. Respondent respectfully requests the ALJ to takejudicial notice of§ 172.312. Complainanthas the burden of demonstrating that the arrows onthe shipment are an indication ofhazardous materials, and Respondent has denied such. 14 Whether the orientation arrows are an indication ofhazardous materials is a genuine issue ofmaterial fact that is disputed by the parties. 5. Respondent, in its Response to Complainant's First Set ofRequests 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 nottravel onboard an aircraft that was In air commerce. Complainanthas the burden of demonstrating that the shipment traveled in air commerce, and Respondent has denied such. 15 This is a genuine issue ofmaterial fact that is disputed by the parties.

13 49 C.F. R. § I72.312, Liquid hazardous materials in non-bulk packagings, provides in pertinentpart:

(a) Except as provided in this section, each non-bulk combination package having inner packagings containing liquidhazardous materials, single packaging fitted with vents, or open cryogenic receptacle intended for the transport ofrefrigerated liquefied gases must be: (2) Legibly marked with package orientation markings that are similar to the illustration shown inthis paragraph, on two opposite vertical sides ofthe package withthe arrows pointingin the correct upright direction. The arrows must be either black or red on white or other suitable contrasting background and commensurate with the size ofthe package. Depicting a rectangular border around the arrows is optional. (Emphasis added.) 14 Respondent's Response to Complainant's First Set ofRequest for Admissions, RequestNo.3 15 Respondent's Response to Complainant's First Set ofRequest for Admissions, RequestNo. 10

### III. CONCLUSION In view ofthe above, Respondent has shownthat numerous genuine issues ofmaterial facts are in dispute. Accordingly, the Complainant, as the movingparty, has not met its burden and the motionfor decision should be denied.

DatedApril23, 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.comCERTIFICATE 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 ofthe Regional Counsel 2601 Meacham Boulevard Fort Worth, Texas 76137 The Honorable Richard C. Goodwin, Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-5121 StaffAssistant FAX:202-366-7536 Datedthis 23rd day ofApril, 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.comU.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 )

ORDERDENYING COMPLAINANT'S MOTION FORDECISION

The Court, having reviewed Complainant's Motion For Decision and Respondent's Answer to Complainant's Motion for Decision, andbeing otherwise fully advised on the premises; IT IS HEREBY ORDERED that Complainant's Motion For Decision is denied.

Administrative Law Judge Date:

---------------------