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, ) Docket No. 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 FOR EXTENSION OF TIME 

United Parcel Service Co. (a Delaware Corporation, "UPS Airlines") hereby responds to 

the April 7, 2016 document filed by Complainant styled as a "Response to Respondent's Motion 

for Extension of Time" (the "Response"). The Response moves for the removal of UPS Airlines 

from this case. It also asks the Court to revisit and reverse its AprilS, 2016 ruling granting the 

Respondent an extension of time to file an answer or motion in response to the Complaint until 

twenty days after a ruling is issued on the pending motion to consolidate. For the reasons 

discussed below, UPS Airlines respectfully requests that the relief sought in the Response be 

denied. 1 

1 UPS Airlines respectfully submits that the Court should accept the filing of this instrument even 

though "reply" briefs are not usually submitted in support of routine pre-hearing motions. By asking 

the Court to revisit its April 5 order as well as seeking additional relief in the form of the dismissal 

UPS Airlines, the Response functions as an original motion requesting relief under 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 

On March 4, 2016, the FAA filed its complaint against UPS Airlines (dated March 3, 

20 16) with the Office of Hearings (the "Complaint"). 

On March 28, 2016, UPS Airlines and United Parcel Service, Inc. (an Ohio Corporation, 

"UPS Ground") filed a joint motion to extend time to respond to the Complaint until twenty (20) 

days following the date on which their forthcoming motions to consolidate the above-captioned 

matter with cases pending under Docket Nos. FAA-2016-4262 and FAA-2015-3320 were 

decided (the "Motion to Extend Time"). On April!, 2016, UPS Airlines and UPS Ground filed 

joint motions to consolidate in this case (the "Motion to Consolidate") as well as Docket Nos. 

FAA-2016-4262 and FAA-2015-3320. 

By order dated AprilS, 2016 (the "Order"), the Court granted the Motion to Extend Time 

and reserved relief on the Motion to Consolidate. The Order also directed the Complainant to 

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 Not Be Removed As A Party. 

In the Response, the FAA moves for the removal of UPS Airlines from this case. This 

request is improper and untimely because it is made under the guise of responding to the Motion 

to Extend Time. For this reason alone the request should be denied. 

In addition, the FAA's attempt to pass-off the substantive dismissal of UPS Airlines as 

the mere correction of a typo in the caption of the Complaint side-steps the fact that the 

relationship governing how UPS Airlines and UPS Ground handle the offer and acceptance into 

air transportation of packages is the dispositive issue in the case. UPS Airlines is a necessary 

party to the adjudication of this dispute, for at least the following reasons. 

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First, each of the violations asserted in the Complaint is premised on the factual 

allegation that UPS Ground "offered" a shipment of hazardous material "for transportation by 

air. "

2 It is axiomatic that the offer and acceptance of a package for air transportation are two 

sides of the same coin. The FAA acknowledged this relationship in its Notice of Proposed Civil 

Penalty in this case, which contained two counts: (i) against UPS Ground for knowingly offering 

a package for transportation by air in violation of the HMR, and (ii) against UPS Airlines for 

knowingly accepting a package for transportation by air in violation of the HMR3 The 

intertwined facts regarding the roles and functions of UPS Airlines and UPS Ground in 

cormection with the package referenced in the Complaint are essential to adjudicating this matter. 

Second, the relationship between UPS 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 took place, the time, place, and 

manner of "offer" and "acceptance" are clearly defmed. 4 Unless the well-defined processes for 

offer and acceptance are triggered, a package arriving at the Louisville facility is not, by 

definition, being offered for transportation by air. In fact, the FAA previously 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 on this explanation, we 

are closing this case with no action. 5 

2 See, e.g. Complaint, ~~2, 12, 13, 14, 15, 16, 17, and 18. 

3 See Exh. I to the Declaration of Paul Alp in Support of UPS Airlines' Response to Complainant's 

"Response" to Respondent's Motion for Extension of Time 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. 

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Third, the FAA's treatment of the removal of UPS Airlines from this case as the 

correction of a typo demonstrates a continuing misunderstanding, or potentially a willful 

disregard, of how the integrated cargo transportation process between UPS Ground and UPS 

Airlines works. The FAA's Notice of Proposed Civil Penalty in this matter contained counts 

against both UPS Airlines and UPS Ground, while the Complaint names UPS Airlines in the 

caption but references UPS Ground in the body. The similar complaint in FAA-20 15-3320 

identifies UPS Airlines in the caption and also in paragraph 1 of the body, while referring 

otherwise to UPS Ground. 6 In contrast, the similar complaint in F AA-20 16-4262 identifies UPS 

Airlines in the caption and in paragraph 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 "in its 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 in the 

summary fashion requested by the FAA is not appropriate here. 

Fourth, the FAA's repeated inability to understand or acknowledge the roles that UPS 

Airlines and UPS Ground play within the cargo transportation process raises the possibility of 

inconsistent rulings in the various cases it has brought, including those pending under Docket 

Nos. FAA-2016-4262 and FAA-2015-3320. UPS Airlines has a substantial interest in the 

resolution of this and the other pending cases in a manner that ensures consistent results 

reflecting the true facts on the ground. 

The FAA's request 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). 

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B. The Court Should Not Reverse Its Decision Granting the 

Motion to Extend Time. 

The FAA also asks the Court to reverse its decision allowing Respondent to answer or 

file a motion in response to the Complaint within twenty days after a ruling on the Motion to 

Consolidate. By moving the Court to revisit its prior ruling 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 relief requested should therefore be denied. 

In addition, the FAA's argument that reviewing an answer to the Complaint is a 

necessary prerequisite to deciding the Motion to Consolidate misses the mark entirely. It is not 

true, as the FAA asserts, that without an answer it would be impossible to ascertain whether 

consolidation is "reasonable."8 As discussed in the Motion to Consolidate, the Complaint in this 

matter and those tiled in Docket Nos. FAA-2016-4262 and FAA-2015-3320 are premised on the 

same fhndamental fact pattern: transportation by UPS Ground of packages to the Louisville, 

Kentucky sort facility. The dispositive legal issue in each of the cases is also the same: whether 

an "offer" or "acceptance" in violation of the HMRs took place at the facility. As discussed 

above, the resolution of this issue turns on the established processes between UPS 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 other hazardous materials 

cases 9 

No other facts are required to determine whether consolidation of the three cases would 

be "reasonable." Consolidating the cases will foster efficiency in the form of consolidated 

motions practice and discovery. The Court should not reverse its decision granting the Motion to 

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 Motion to Extend Time, the Complainant's 

Response also asks the Court to deny the Motion to 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 in the Motion to Consolidate, UPS Airlines respectfully requests that the Motion 

to Consolidate be granted. 

Ill. CONCLUSION 

For the foregoing reasons, UPS Airlines respectfully asks the Court to (i) deny the FAA's 

request that UPS Airlines be removed as a party; (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 Pennsylvania Ave., 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 of the foregoing and 

accompanying Declaration of Paul Alp were served by hand delivery or UPS Next Day Air®, as 

indicated below, this 15th day of April, 2016, to the following: 

Federal Aviation Administration 

600 Independence Avenue, SW 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 

Administrative Law Judge J. E. Sullivan 

Office of Hearings, M-20 

U.S. Department of Transportation 

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

Washington, DC 20590 

James H. Dunfee Jr. 

Attorney 

Enforcement Division, Southern Team 

1701 Columbia Avenue 

College Park, GA 30337 

DATED: April 15,2016 

(original + 1 copy) (via hand delivery) 

(via hand delivery) 

(via UPS .Next Day Air) 

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