## u.s. DEPARTMENT OF TRANSPORTATIONREr; 

# r- 

# ntr-o OFFICE OF HEARINGS ··-·'" 

## C' f ' 11"- 

### ,,_ WASHINGTON, DC 

## APR j 

## J lOIS ) HEARING 

## DOCKET FEDERAL AVIATION ) ADMINISTRATION ) ) Complainant, ) DocketNo. FAA-2016-4261 ) v. ) CaseNo.2013S0700189 ) UNITED PARCEL SERVICE CO. ) ALJ J.E. Sullivan ) Respondent. )

### ----~---------------------) UNITED PARCEL SERVICE CO.'S RESPONSE TO COMPLAINANT'S "RESPONSE" TO RESPONDENT'S MOTION FOREXTENSION OF TIME United Parcel Service Co. (aDelaware Corporation, "UPS Airlines") hereby responds to the April 7, 2016 document filed by Complainant styled as a "Response to Respondent's Motion for Extension ofTime" (the "Response"). The Response moves for the removal ofUPS Airlines from this case. It also asks the Court to revisit and reverse its AprilS, 2016 ruling granting the Respondent an extension oftime to file an answer or motioninresponse to the Complaint until twenty days after a ruling is issued on the pending motion to consolidate. Forthe reasons discussed below, UPS Airlines respectfully requests that the reliefsoughtinthe Response be denied. 1

1 UPS Airlines respectfully submits that the Court should accept the filing ofthis instrument even though "reply" briefs are not usually submitted in support ofroutine pre-hearing motions. By asking the Courtto revisit its April 5 order as well as seeking additional reliefin the form ofthe dismissal UPS Airlines, the Response functions as an original motion requesting reliefunder 14 C.F.R. § 13.218(a) and not an answer to a motion under 14 C.F.R. § 13.218(d). Therefore, notwithstanding the name Complainant gave its tiling, it would be contrary to the regulations (both in substance and spirit) and interests of justice not to afford UPS Airlines an opp01tunity to respond.I PROCEDURALBACKGROUND OnMarch 4, 2016, the FAA filed its complaint against UPS Airlines (dated March 3, 2016) withthe Office ofHearings (the "Complaint"). On March 28, 2016, UPS Airlines and United Parcel Service, Inc. (an Ohio Corporation, "UPS Ground") filed ajointmotionto extend time to respond to the Complaint until twenty (20) days following the date onwhichtheir forthcoming motions to consolidate the above-captioned matter with cases pending under DocketNos. FAA-2016-4262 and FAA-2015-3320 were decided (the "Motionto Extend Time"). On April!, 2016, UPS Airlines and UPS Ground filed jointmotions to consolidate in this case (the "Motionto Consolidate") as well as DocketNos. FAA-2016-4262 and FAA-2015-3320. By order dated AprilS, 2016 (the "Order"), the Court granted the Motionto Extend Time and reserved reliefonthe Motionto Consolidate. The Order also directed the Complainantto file a response to the Motion to Consolidate on or before April18, 2016. On April 7, 2018, the Complainant filed its Response. II. DISCUSSION A. UPS Airlines Should NotBe Removed As A Party. Inthe Response, the FAA moves for the removal ofUPS Airlines from this case. This request is improper and untimely because it is made under the guise ofresponding to the Motion to Extend Time. Forthis reason alone the request should be denied. In addition, the FAA's attempt to pass-offthe substantive dismissal ofUPS Airlines as the mere correction ofa typo inthe caption ofthe Complaint side-steps the fact that the relationship governing howUPS Airlines and UPS Ground handle the offer and acceptance into air transportation ofpackages is 

### the dispositive issue inthe case. UPS Airlines is a necessary party to the adjudication ofthis dispute, for at least the following reasons.

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### First, each ofthe violations asserted inthe Complaint is premised onthe factual allegation that UPS Ground "offered" a shipment ofhazardous material "fortransportation by air."2 Itis axiomatic that the offer and acceptance ofa package for air transportation are two sides ofthe same coin. The FAA acknowledged this relationship in its Notice ofProposed Civil Penalty in this case, which containedtwo counts: (i) against UPS Ground for knowingly offering
a package for transportation by air in violation ofthe HMR, and (ii) against UPS Airlines for knowingly accepting a package for transportation by air in violation ofthe HMR3 The intertwined facts regarding the roles and functions ofUPS Airlines and UPS Ground in cormection withthe package referenced inthe Complaint are essential to adjudicating this matter. 

### Second, the relationship betweenUPS Airlines and UPS Ground is governed by welldefined processes for when and where "offer" and "acceptance" between the entities occurs. At the Louisville sort facility where the FAA alleges the violations tookplace, the time, place, and
manner of"offer" and "acceptance" are clearly defmed. 4 Unless the well-defined processes for offer and acceptance are triggered, apackage arriving at the Louisville facility is not, by definition, being offered for transportation by air. In fact, the FAApreviously recognized the meaning and significance ofthese processes when it declined to pursue civil penalties in two similar hazardous materials matters, as follows: UPS, Inc. is a DOT-regulated trucking company which performs ground transportation and tenders packages to UPS Co., an FAA-certified air carrier. The package was transported in the ground transportation system and had not been accepted into or entered the air network. Based onthis explanation, we are closingthis case withno action.5

2 See, e.g. Complaint,**~~2,** 12, 13, 14, 15, 16, 17, and 18. 3 See Exh. I to the Declaration ofPaul Alp in Support ofUPS Airlines' Response to Complainant's "Response" to Respondent's Motion for Extension ofTime filed herewith ("Alp Dec!."). 4 See April2, 2013letter in FAA Case No. 2013S0700189, Alp Dec!., Exh. 2. 5 See January 26, 2012 letter re FAA Case No. 2011 S0700519; February 9, 2012 letter re FAA Case No. 2012S0700063, collectively attached at Alp Dec!., Exh. 3. - 3 -Third, the FAA's treatment ofthe removal ofUPS Airlines from this case as the correction ofa typo demonstrates a continuing misunderstanding, or potentially a willful disregard, ofhowthe integrated cargo transportation process betweenUPS Ground and UPS Airlines works. The FAA'sNotice ofProposed Civil Penalty inthis matter contained counts against both UPS Airlines and UPS Ground, while the Complaint names UPS Airlines inthe caption butreferences UPS Ground inthe body. The similar complaint inFAA-2015-3320 identifies UPS Airlines inthe caption and also in paragraph 1 ofthe body, while referring otherwise toUPS Ground.6 In contrast, the similar complaint inFAA-2016-4262 identifies UPS Airlines inthe caption and inparagraph I, while referring otherwise to a company that does not exist- "United Parcel Service ('UPS')"- and makes the curious allegation that this entity offered hazardous materials for air transportation "inits capacity as 

### afreightforwarder."7 The agency's ongoing confusion over whether to seek penalties from UPS Airlines or UPS Ground is obvious. This confusion is another reason why dismissing UPS Airlines inthe summary fashion requested by the FAA is not appropriate here. Fourth, the FAA's repeated inabilityto understand or acknowledge the roles that UPS Airlines and UPS Ground play within the cargo transportation process raises the possibility of inconsistent rulings inthe various cases ithas brought, including those pending under Docket Nos. FAA-2016-4262 and FAA-2015-3320. UPS Airlines has a substantial interest in the resolution ofthis and the otherpending cases in a manner that ensures consistentresults reflecting the true facts onthe ground. The FAA'srequest to remove UPS Airlines as a party is improper and fundamentally unsound.

6 Alp Decl., Exh. 4. 7 Alp Decl., Exh. 5

**(~** 20, emphasis in original). 

### - 4 -B. The Court Should NotReverse Its Decision Granting the Motion to Extend Time. The FAA also asks the Courtto reverse its decision allowing Respondent to answer or file a motion in response to the Complaintwithin twenty days after a ruling on the Motion to Consolidate. By moving the Courtto revisit its priorruling in a document purporting to be an
answer to a motion under 14 C.F.R. § 13.218(d), the FAA's Response is untimely and inappropriate, and the reliefrequested should therefore be denied. In addition, the FAA's argument that reviewing an answer to the Complaint is a necessary prerequisite to deciding the Motionto Consolidate misses the mark entirely. Itis not true, as the FAA asserts, that without an answer it would be impossible to ascertain whether consolidation is "reasonable." 8 As discussed inthe Motion to Consolidate, the Complaint in this matter and those tiled in DocketNos. FAA-2016-4262 and FAA-2015-3320 are premised onthe
same fhndamental fact pattern: transportationby UPS Ground ofpackages to the Louisville, Kentucky sort facility. The dispositive legal issue in each ofthe cases is also the same: whether
an "offer" or "acceptance" in violation ofthe HMRs tookplace atthe facility. As discussed above, the resolution ofthis issue turns on the established processes betweenUPS Airlines and UPS Ground regarding the time, place, and manner in which "offer" and "acceptance" take place-processes that the FAA previously found to be dispositive in otherhazardous materials
cases 9 No other facts are required to determine whether consolidation ofthe three cases would be "reasonable." Consolidatingthe cases willfoster efficiency inthe form ofconsolidated motions practice and discovery. The Court should notreverse its decision granting the Motionto Extend Time.

8 See Response, 

### 11 5. 9 See Alp Dec!., Exh. 3.



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-C. The Motion to Consolidate Should be Granted. Although styled as a response to the Motionto Extend Time, the Complainant's Response also asks the Court to deny the Motionto Consolidate. In doing so, the Response fails to address the reasons set forth in the Motion to Consolidate for why consolidation is appropriate and fails to articulate a reasonable basis for denying the motion. Accordingly, for the reasons set forth above and inthe Motionto Consolidate, UPS Airlines respectfullyrequests that the Motion to Consolidate be granted. Ill. CONCLUSION Forthe foregoing reasons, UPS Airlines respectfully asks the Courtto (i) deny the FAA's request that UPS Airlines be removed as aparty; (ii) deny the FAA's request that the Court
reverse its ruling granting the Motion to Extend Time; and (iii) grant the Motion to Consolidate.
DATED: April15, 2016 Respectfully submitted,

Paul Alp CROWELL & MORING LLP 1001 PennsylvaniaAve., NW Washington DC 20004-2595 palp@crowell.com 202- 624-2747 202-628-5116 (Fax) and Winston E. Miller Miles R. Harrison FROST BROWN TODD LLC 400 W. Market Street, 32"d 

### Fl. Louisville, KY 40202 wmiller@fbtlaw.com mharrison@fblaw.com 502-589-5400 (Main) 502-581-1087 (Fax) Counsel for United Parcel Service Co.



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-CERTIFICATE OF SERVICE 

### The undersigned hereby certifies that true and correct copies ofthe foregoing and accompanying Declaration ofPaul Alp were servedby hand delivery orUPS NextDay Air®, as indicatedbelow, this 15th day ofApril, 2016, to the following: Federal AviationAdministration 600 Independence Avenue, SW Washington, DC 20591 Attention: HearingDocket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000
Administrative Law Judge J. E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 James H. Dunfee Jr. Attorney EnforcementDivision, Southern Team 1701 ColumbiaAvenue College Park, GA 30337
DATED: April 15,2016 (original + 1copy) (via hand delivery)

(via hand delivery)

(via UPS .Next Day Air)



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