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RESPONSE BRIEF: JANUARy 30, 2016 v ED 

UNITES STATES DEPARTMENT OF TRANSPOO~~~ . . • / 

OFFICE OF HEARINGS FEB- It Ztm 

WASHINGTON, D.C. HEARING DOCKET 

FEDERAL AVIATION ADMINISTRATION ) 

Complainant, 

v. 

D & M CUSTOM INJECTION MOLDING 

CORPORATION, 

Respondent. 

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) 

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FAA DOCKET NO, CPllGLOOO 

(Civil Penalty Action) 

FDMS No. FAA- 2011-0679 

RESPONSE BRIEF TO INITIAL DECISION OF 

ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Initial Finding: Respondent was assessed a civil penalty of $110,000 

I. Background 

The Respondent stipulates to the Background as provided by Hon. Judge Goodwin in 

his decision of December 13, 2012. 

II. Penalty Determination 

The decision by Hon. Judge Goodwin held for an $110,000 assessment against the 

Respondent. 

A. Factors in the Determination 

The Respondent stipulates that Hon. Judge Goodwin has appropriately defined the 

factors to be used in his determination. 

B. Circumstances of the Incident 
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The Respondent stipulates to the details of the incident as provided by Hon. Judge 

Goodwin. 

C. Decision- Request for Further Reduction 

1. Complainant's arguments 

The Respondent stipulates to details of Complainant's arguments as provided by 

Hon. Judge Goodwin. 

2. Respondent's arguments 

The Respondent stipulates to the details of the Respondent's arguments as 

provided by Hon. Judge Goodwin. 

3. Ruling and request for further reduction 

The Respondent respectfully requests that the Administrator of the FAA review 

the arguments provided herein and further reduce the penalty to $25,000 in consideration 

of the mitigating factors that were improperly considered and the additional background 

provided with this filing. 

Hon. Judge Goodwin found that the Respondent failed to meet the standard of 

demonstrating that the Respondent was unable to pay the initial assessment of a $168,000 

civil penalty, but determined that a reduction of the penalty to $110,000 was appropriate 

and warranted by the totality of the circumstances in the context of the statutory factors, 

being substantial without having an unduly punitive character and suitably accounting for 

both the aggravating and the mitigating factors involved in the case. 

However, the Respondent respectfully requests that the Administrator dutifully 

and appropriately consider the role of the Chinese manufacturer in this matter as a 

mitigating factor. 

The manufacturer improperly and intentionally changed the specifications of the 

product that the Respondent was shipped. 
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The manufacturer improperly and intentionally mislabeled the shipping 

documents that were used to convey the products from their country of origin- The 

Peoples' Republic of China. 

The manufacturer improperly and intentionally mislabeled the shipping materials 

that were used to convey the products from their country of origin- The Peoples' 

Republic of China. 

The manufacturer improperly and intentionally mislabeled the shipping materials 

that were used to convey the products from their country of origin- The Peoples' 

Republic of China. 

Both the Claimant and the Hon. Judge Goodwin assert that it is neither credible 

nor a significant mitigating factor that the Respondent was unaware of the presence of 

hazardous materials in the product that it was asked to "assemble." As Respondent has 

pointed out numerous times- its assembly activity did not involve the placing of the 

lithium batteries- the hazardous materials- into the product. The batteries had been preinstalled in China- at the point of manufacture and the nature of their chemistry was not 

readily or apparently discernible. For Respondent to gain knowledge of the presence of a 

hazardous material would have required initial disassembly- an activity specifically 

outside the nature and the scope of its responsibilities and contractual obligations. In 

retrospect it would appear that there was intention on the part of the Chinese 

manufacturer to obscure the nature of the product. 

Finally, the context of this engagement and the economic environment that the 

Respondent was operating in the spring and summer of2009 must be considered. 

Respondent was experiencing a significant downturn in its activities and revenues as 

many of its primary customers were adversely affected by the business to business 

recession and manufacturing "slow-down" that was well documented. This engagement 

was on a trial basis and was accepted in a good faith attempt to generate sustainable new 

business in a challenging business climate. Unfortunately, no such good faith was shown 
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by the Chinese manufacturer, who clearly went out of its way to obscure the nature of the 

products they shipped to the US for completion by the Respondent. 

Respondent believes that the current finding of an $110,000 civil penalty 

significantly overstates the Respondents culpability and understates the clear 

responsibility of the manufacturer. Respondent understands its responsibility as the 

shipper of the assembled product, but believes that it is in the best interests of the 

responsibility of the FAA and its constituency to consider and document the role of the 

manufacturer. However, given the nature of its authority, the only tangible way in which 

it can do this is by further reducing the Respondent's penalty by virtue of this important 

mitigating factor. Any other action would, in effect, reward the manufacturer for their 

bad faith and intentional acts. 

Therefore, the Respondent respectfully request a further reduction to an amount 

no more than $25,000. 

Respectfully Submitted, 

'/~ -\=4L>5-~ 

Michael Teofilovich, President ' 

D&M Custom Injection Molding Corp. 

Dba D&M Plastics Corporation 

150 French Road 

Burlington, IL 60109