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BEFORE THE 

DEPARTMENT OF TRANSPORTATION 

In the Matter of: 

FEDERAL AVIATION 

ADMINISTRATION, 

Complainant, 

vs . 

TEXAS ARMY 

NATIONAL GUARD, 

Respondent. 

DECEIVED 

JAN 19 2011 

j^ooM^^^G DOCKET 

CP09SO0014 

Civil Penalty Action 

DMS No. 

FAA-2009-104S 

FAA Case No. 

2008 SO700389 

S^i 

Courtroom 1 ' i 

Homer Thornberry Judicial Bdg. 

903 San Jacinto Boulevard 

Austin, Texas 

Tuesday, 

January 4, 2 011 

The above-entitled matter came on for 

hearing, 

pursuant to notice, at 9:00 a.m. 

BEFORE: HON. RICHARD C. GOODWIN 

Administrative Law Judge 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
APPEARANCES 

On behalf of the Complainant: 

GERALD A. ELLIS, ESQ. 

Federal Aviation Administration 

Southern Region, A507 

P.O. Box 20636 

Atlanta, Georgia 30320-0007 

404-305-5200 

On behalf of the Respondent: 

MICHAEL C. CROWLEY, ESQ. 

Texas Attorney General's Office 

P.O. Box 12548 

Austin, Texas 78711-2548 

512-475-4208 

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(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
r^ INDE X 

WITNESS DIRECT CROSS REDIRECT RECROSS 

Staci Baldwin 11 16 

Cathleen Gruetzner 27 37 38 

EXHIBITS MARK RECD 

Complainant's 

C-1 13 14 

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Respondent's 

R - 1 

R-2 

18 24 

24 34 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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PROCEEDING S 

(9:10 a.m.) 

JUDGE GOODWIN: This is the case 

of Federal Aviation Administration against the 

Texas Army National Guard, docket number 2 009-

1045 Counsel, identify yourself for the 

record, please. 

MR. ELLIS: Gerald Ellis for the 

FAA, Your Honor, Complainant. 

MR. CROWLEY: Michael Crowley for 

the Office of the Attorney General, appearing 

on behalf of the Texas Guard. We are ready. 

JUDGE GOODWIN: Okay. A couple of 

preliminary matters, and I know Mr. Ellis is 

probably familiar with this. Everything that 

we do goes on the Internet at Regulations.gov, 

so what I'm going to ask you with all exhibits 

is make sure that you redact personal 

information: Social Security numbers, dates 

of birth, home addresses. It's as applicable 

to the FAA as it is to anybody else. If in 

doubt, redact it, and I brought a black magic 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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marker, if that becomes a problem. 

As I indicated, I don't care how 

you mark your exhibits, as long as you don't 

use the same exhibit numbers. At the end of 

the hearing, I'll keep the exhibits and make 

sure they get transmitted. 

Let's see. Any other preliminary 

matters? Mr. Ellis, are you ready to call 

your first witness? 

MR. ELLIS: There IS one 

preliminary matter. In the complaint, the 

date of the shipment should be 2008 instead of 

2009, and that would affect paragraphs 2, 5 

and 6 of the complaint. 

JUDGE GOODWIN: So you want to 

amend the complaint. Which -- give me the 

paragraph 

MR. ELLIS: Paragraphs 2, 5, and 6 

of the complaint. 

JUDGE GOODWIN: Okay. Do you have 

any objection to that, Mr. Crowley? 

MR. CROWLEY: No objection 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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JUDGE GOODWIN: Okay. Anything 

else, Mr. Ellis? 

MR. ELLIS: That's all. 

JUDGE GOODWIN: Okay. And I don' t 

know how many witnesses you have. Do you want 

the rule on what witnesses -- do you want the 

witnesses sequestered? 

MR. ELLIS: I don't really think 

it's necessary in this particular case. 

JUDGE GOODWIN: Okay. 

MR. CROWLEY: No 

JUDGE GOODWIN: It doesn't make 

any difference to me. Call your first 

witness -- or do you want to make an opening. 

Mr. Ellis? 

Your Honor 

MR. ELLIS: Just a short opening. 

OPENING STATEMENT ON BEHALF OF THE 

COMPLAINANT 

MR. ELLIS: With the facts in this 

complaint admitted. Your Honor, the FAA will 

focus on proving that the $30,000 civil 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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penalty requested is supported by the Agency's 

published sanction guidance and that the 

matter is neither arbitrary -- and that the 

penalty is neither arbitrary nor capricious. 

And that's going to be the focus of our 

argument today, 

JUDGE GOODWIN: Okay, Mr 

Crowley, do you want to argue or reserve? 

MR. CROWLEY: Very briefly, I'd 

like to address. 

OPENING STATEMENT ON BEHALF OF THE 

RESPONDENT 

MR. CROWLEY: Your Honor, 

mentioned earlier to Mr. Ellis that this was 

almost like an appellate case in that while we 

may dispute interpretations of certain facts, 

I don't think we dispute the facts themselves. 

Counsel is correct that we have stipulated to 

the liability portion. We feel the penalty 

of -- the proposed penalty of 30,000 is 

excessive, given the conduct of the Guard from 

the time they learned of this situation. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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The Guard, the same month this 

occurred, initiated a far-reaching program 

that covered the entire state, a program of 

correction, and stayed with it. They were 

prompt. They stayed with it. By the time a 

letter had come from the FAA, they were able 

to provide the FAA with information of what 

they were doing. 

This is the first time this 

incidence happened with the Guard, and while 

it is certainly not a trivial incident, it 

could have been much worse, both in injuries 

to persons and property. It wasn't, and all 

these factors should have been considered, and 

we feel were not considered. 

49 C.F.R. Section 13.16(c) sets 

out the criteria for determining penalties, 

and the elements I just mentioned are intended 

to be considered, and then Appendix A to 49 

C.F.R., Subpart -- Part 107, Subpart (d), has 

some interpretive comments on how the 

statutory criteria should be applied, and in 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 

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there, they discuss the fact that first-time 

incidents, and they stress the fact that if 

corrective action is taken and it is extensive 

and it is prompt, that a significant amount of 

weight should be given to that, and we felt it 

wasn't 

There is a matrix that precedes 

this comment. The comment is at page 50 of 

Exhibit -- or tab 4, and at page 43 and 44, 

there is a violation and a matrix violation 

offering for transportation, hazardous 

material without shipping papers, markings, et 

cetera. The baseline assessment for that is 

recommended to be $15,000. 

The interpretive commentary 

suggests in cases such as this, when it is one 

incident, one transaction and even though 

there are several -- and in this case, it's 19 

counts, that penalties should be levied on 

one, and in a sense, the others subsumed. I 

guess in criminal law, that would be the 

lesser included offense type approach. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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We would request that the $15,000 

penalty that is suggested in the matrix for 

offering a hazardous material for shipment 

without notice or markings would be a fair and 

sufficient penalty, and that is what we will 

demonstrate to the Court. 

JUDGE GOODWIN: Okay. Mr. Ellis? 

MR. ELLIS: Yes. Are you ready 

for witnesses. Your Honor? 

JUDGE GOODWIN: Yes. 

MR. ELLIS: The FAA calls Special 

Agent Staci Baldwin. 

JUDGE GOODWIN: Didn't I last see 

you in Arlington? Where did I last see you? 

We've been doing too many of these, Mr. Ellis. 

We look at the faces and can't remember where 

we saw -- stand and raise your right hand. 

Whereupon, 

STACI BALDWIN 

having been first duly sworn, was called as a 

witness herein and was examined and testified 

as follows: 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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JUDGE GOODWIN: Please be seated. 

State your full name and spell your first and 

last name 

THE WITNESS Staci Lynette 

Baldwin, S-T-A-C-I, B-A-L-D-W-I-N. 

MR. ELLIS: I think, given the 

arrangement of the microphones here, I better 

stay where I am. 

JUDGE GOODWIN: Yes 

DIRECT EXAMINATION 

BY MR. ELLIS: 

Q Okay. All right. Agent Baldwin, 

will you please state your name again and 

spell it for the record. 

A Staci Lynette Baldwin, S-T-A-C-I, 

B-A-L-D-W-I-N. 

Q Okay. Please tell us a little bit 

about your educational background. 

A I have a bachelor's in criminal 

justice, a master's in criminal investigative 

psychology, and I'm currently working on a 

Ph.D. in public safety. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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Q And what is your current position 

with the FAA? 

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Q 

the FAA? 

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A hazardous materials specialist. 

And how long have you been with 

For about ten years. 

Okay. How did you become involved 

with this case? 

A It was sent to us through our 

Louisville office. 

Q All right And what is the 

proposed amount of civil penalty the FAA is 

seeking in this case? 

A $30,000. 

Q Are you aware of the FAA sanction 

guidance in FAA Order Number 2150.3(b), 

Appendix C? 

Q 

Yes. 

And did the FAA use that sanction 

guidance to determine the civil penalty in 

this case? 

A Yes 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 

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Q Does the sanction guidance 

proposed in this case consider Respondent's 

corrective action? 

A Yes. 

MR. ELLIS: Okay. Your Honor, I'm 

going to offer Exhibit C-1 into evidence. 

(The document referred to was 

marked for identification as 

Complainant's Exhibit 1.) 

MR. ELLIS: Respondent has a copy 

of it. 

Q 

BY MR. ELLIS: 

Is this the sanction guidance that 

you used. Agent Baldwin? 

A Yes, it is. 

MR. ELLIS: Your Honor, we'd like 

to offer Government -- excuse me -- Exhibit C1 into evidence. 

MR. CROWLEY: No objection. 

MR. ELLIS: That's really the only 

questions I have, Your Honor. 

JUDGE GOODWIN: Okay. It would be 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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helpful if you'd give the Court a little bit 

of background as to what happened, because all 

I know now is -- the only thing in evidence 

I've got right now is sanctions guidance. 

MR. ELLIS: And the complaint 

itself. Your Honor. 

JUDGE GOODWIN: And the complaint, 

but I don't have the complaint with me, so 

could you give me just a little bit of 

background. 

MR. ELLIS: Absolutely 

JUDGE GOODWIN: And C-1 for 

identification is received into evidence as C1. 

(The document referred to, having 

been previously marked for 

identification as Complainant's 

Exhibit 1, was received in 

evidence.) 

MR. ELLIS In essence. Your 

Honor, this is a fairly typical hazardous 

material case, except for the Respondent being 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, DC. 20005-3701 www.nealrgross.com 
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a National Guard unit, but as far as what 

triggered the FAA's involvement in the case, 

it's fairly typical, even the most typical 

kind of HAZMAT, which is paint. Not all 

paints are hazardous, but many of them are. 

And this was a shipment that 

spilled out after being offered to UPS NextDay Air. It spilled out in Kentucky, which 

causes UPS to contact the FAA, and our Agency 

investigated the matter, and --

JUDGE GOODWIN: Okay. Did this 

agent do the investigation? 

MR. ELLIS: This agent was not the 

on-site investigator. It was our Louisville 

person who was on-site. However, Ms. Baldwin 

wrote up the evidence and wrote up the case 

and did the initial penalty assessment. 

JUDGE GOODWIN: Okay. How much 

paint was there? 

MR. ELLIS: Four gallons. And 

according to EPS -- let's see -- one gallon 

leaked. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 

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JUDGE GOODWIN: And what kind of 

paint was it? 

excuse me 

MR. ELLIS: It was a class II --

class 3, which is flammable 

liquid, packing group III, which connotes the 

flash point of the material, paint. The brand 

name was Durant Dur-A-Plex 800, which I'm sure 

you won't be familiar with, but it --

JUDGE GOODWIN: Yes. It was class 

3 flammable -- what was the --

which --

MR. ELLIS: Packing group III, 

JUDGE GOODWIN: Okay. Anything 

further, Mr. Ellis? 

MR. ELLIS: That's the basics of 

it, Your Honor. 

JUDGE GOODWIN: Mr. Crowley? 

MR. CROWLEY: I do have a couple 

of questions. Your Honor. 

Q 

CROSS-EXAMINATION 

BY MR. CROWLEY 

Ms. Baldwin, do you recal l 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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receiving a letter dated October 24, 2008, 

from a representative of the Guard? 

A No, I do not. 

Q You don't? I'll show you one and 

see if refreshes your memory. Who is Deborah 

G. Kennedy? 

A 

Q 

She's my manager. 

Okay. And she initially was 

dealing with this incident. Is that correct? 

A She was contacted by, I think, a 

Lieutenant Collins. 

Q Okay. Do you recall if she sent a 

letter to the Guard, requesting information on 

September 22, 2 008? 

A No, she did not. 

MR. CROWLEY: May I approach the 

witness. Your Honor? I'd like for the -- I'd 

like to show her this --

JUDGE GOODWIN: Oh, go ahead. 

Sure. 

MR. ELLIS: This is tab 1? 

MR. CROWLEY: Yes. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

(202) 234-4433 WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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MR. ELLIS: I know you showed it 

to me before. 

MR. CROWLEY: Yes. I wanted to 

ask her about these two letters that I showed 

you before 

Q 

BY MR. CROWLEY 

Ms. Baldwin, I'd like to show you 

what we've marked as the Respondent's Exhibit 

1. 

(The document referred to was 

marked for identification as 

Respondent's Exhibit 1.) 

BY MR. CROWLEY: 

Q And that is a letter -- that says 

it's a letter addressed to you. Is that 

correct? 

A 

Q 

Yes. That's what it says 

And are you saying you never 

received that? 

Q 

No. I never received this 

Do you have any idea how -- would 

you turn to the next page. 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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A (Complying.) 

Q And that is a letter from whom? 

A Myself. 

Q Okay. Who signed it? 

A I did, 

Q Whose name is it over? 

A My manager's 

Q Okay. But you signed it. 

A Right. And next to her name, it 

says. For, which means I signed it for my 

manager 

Q 

A 

Okay. Is that your signature? 

Yes 

Okay. Do you recall signing this 

letter now? 

A This letter? Yes. This is the 

letter we sent to your office. This was our 

letter of investigation. 

Q Okay. And did you receive any 

response? 

A No, I did not. 

Q Did your agent receiv e any 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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response? 

A 

Q 

response? 

A 

Q 

I am the agent. 

Okay. Did your office receive any 

No 

The next several pages, I'd like 

to ask you if you -- they are a series of 

correspondences within the Guard. Do you 

recall ever seeing those copies attached to 

these other two letters? 

A Not attached to these, but I have 

seen these documents. 

Q Okay. So you have received those. 

A I've seen them. 

Q And would you not have received 

them? 

A They weren't sent to me, so I 

didn't receive them, but I have seen these 

documents and reviewed them. 

JUDGE GOODWIN: Mr. Crowley, the 

exhibits you're referring to, are they in tab 

1 and 2? 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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MR. CROWLEY: Yes We' re 

discussing now tab 1, and let me go ahead and 

formally offer Respondent's Exhibit 1. 

JUDGE GOODWIN: Is that the same 

thing that's in the folder? 

MR. CROWLEY: Yes, it is. 

MR. ELLIS: He wrote the cover 

letter 

MR. CROWLEY Yes I'm not 

putting that in. 

MR. ELLIS: Okay. 

MR. CROWLEY: 

strictly what you've got. 

I'm putting in 

MR. ELLIS: Okay. 

JUDGE GOODWIN: Do you want to 

pass that back? 

MR. CROWLEY: I have no further 

questions. Your Honor. 

MR. ELLIS: You don't have copies? 

I just want to make sure I --

JUDGE GOODWIN: Here. (Handing 

document.) 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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MR. ELLIS: (Perusing document.) 

MR. CROWLEY: I have no further 

questions, Your Honor. 

JUDGE GOODWIN: Do you have any 

redirect? 

MR. ELLIS: Just a question. Your 

Honor What we offered as Exhibit C-1 is 

published sanction guidance. 

JUDGE GOODWIN: Right 

MR, ELLIS And as the 

Administrator's published sanction guidance, 

we do ask for deference to it. 

JUDGE GOODWIN: And, Mr. Crowley, 

I normally take -- each one of the FAA 

attorneys has their own style. Many of them 

present the 2150 as an exhibit. I normally 

take judicial notice of it. It doesn't make 

any difference. We always review the 

guidance which existed at the time of the 

incident in order to -- just because it's just 

a matter of practice. But I've accepted 

Complainant's 1 for identification as 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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Complainant's 1. And what's your position on 

Respondent's 1? You've marked it for 

identification 

offered it 

MR. CROWLEY: Yes. And we've 

JUDGE GOODWIN: Any objection, Mr, 

Ellis, to receiving Respondent's 1? 

MR. ELLIS: I just want to 

completely look at every page 

JUDGE GOODWIN: Sure. Go ahead, 

Take your time 

MR. ELLIS: I know I've seen it 

before. (Perusing document.) 

MR. CROWLEY: And as far as C-1, I 

have no preference either how it comes in. 

either way. 

both ways. 

Honor 

JUDGE GOODWIN: Well, I've done it 

MR. ELLIS: No objection. Your 

JUDGE GOODWIN: Respondent's 1 for 

identification is received into evidence as 

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealrgross.com 
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Respondent's 1 

(The document referred to, having 

been previously marked for 

identification as Respondent's 

Exhibit 1, was received in 

evidence.) 

JUDGE GOODWIN: Any other 

evidence, Mr. Ellis? 

MR. ELLIS: No, Your Honor 

JUDGE GOODWIN: 

you want to be heard? 

MR. CROWLEY: 

Mr. Crowley, Do 

do have 

Respondent's Exhibit 2, a copy of which we've 

provided to Mr. Ellis, and he indicated he 

didn't have any objection to it. It's at tab 

[The document referred to was 

marked for identification as 

Respondent's Exhibit 2.) 

MR. ELLIS: The only objection I 

have is that it's not signed. 

JUDGE GOODWIN: Well, the Court 

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hasn't seen it, so --

MR. CROWLEY: It's at tab 2. 

JUDGE GOODWIN: Well, what you've 

done is you've offered an objection that isn't 

signed. Do you have a witness who can 

authenticate it? I mean, it's certainly going 

to go to weight. 

MR. CROWLEY: 

author, Ms. Gruetzner 

We'll call the 

Oh, okay. 

JUDGE GOODWIN: Oh, wait a minute 

MR. CROWLEY: And I --

JUDGE GOODWIN: Do you want her to 

still sit up here? You can step down. I 

instruct you not to discuss your testimony 

prior to the conclusion of the case. 

excused.) 

(Whereupon, the witness was 

JUDGE GOODWIN: Let's go off the 

record, while she's retrieving --

(Discussion held off the record. 

JUDGE GOODWIN: Let me restate 

(202) 234-4433 

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COURT REPORTERS AND TRANSCRIBERS 

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that for the record. 

While we were off the record, Mr. 

Ellis and Mr. Crowley both affirmed that they 

have stipulated to the facts set forth in the 

complaint, except as amended by Mr. Ellis at 

the beginning of the hearing, which changed 

the date of the shipment from 2009 to 2008, as 

set forth in paragraphs 2, 5 and 6. Is that 

correct, Mr. Ellis? 

MR. ELLIS: Correct. 

JUDGE GOODWIN: And Mr. Crowley 

did not object. 

MR. CROWLEY: That's correct. Your 

Honor 

JUDGE GOODWIN: All right. Call 

your witness, Mr. Crowley. 

MR. CROWLEY: We call Cathleen 

Gruetzner. 

JUDGE GOODWIN: Stand and raise 

your right hand, please 

Whereupon, 

CATHLEEN URSULA GRUETZNER 

(202) 234-4433 

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having been first duly sworn, was called as a 

witness herein and was examined and testified 

as follows 

JUDGE GOODWIN: Please be seated. 

State your name for the record, and spell your 

first and last name, please. 

THE WITNESS: My name is Cathleen 

Ursula Gruetzner, C-A-T-H-L-E-E-N, Gruetzner, 

G-R-U-E-T-Z-N-E-R, 

JUDGE GOODWIN: Counsel, go ahead. 

MR. CROWLEY: Thank you, 

DIRECT EXAMINATION 

BY MR. CROWLEY; 

Q Ms Gruetzner, how are you 

employed? 

A I am the senior official mail 

manager for the National Guard of Texas. 

Q Okay. And you work out of Camp 

Mabry here in Austin? 

A Yes, sir. I am stationed at Camp 

Mabry at this time. 

Q When you say, the State of Texas, 

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does that mean you're in -- your work requires 

you to be involved in bases other than Camp 

Mabry? 

A Yes, sir. I take care of the 

State and the nine components. 

Q Okay. Very briefly, would you 

describe what you do. 

A am the administrator and 

training instructor for my mail couriers, 

handlers, and managers. My job is to keep 

abreast with the numbers and amount of money, 

processing of incoming/outgoing mail. I work 

with the United States Postal Service, 

Military Postal Service Agency, the National 

Guard Bureau, Postmaster General, Postmaster 

General U.S. Postal Service, and my Adjutant 

General Mayorga at this time. 

Q And you're a civilian employee 

Is that correct? 

A Yes, sir 

All right. How long have you held 

this position? 

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A I held this position for 18 years. 

sir 

Q If you go back two-and-a-half 

years to, say, July of 2008, were your 

employment duties comparable to what you've 

just described now? 

A No, sir. At the time, I was still 

administrative clerk. I had not been 

officially moved to the position of management 

until August. 

Q Oh, of 2008? 

A Yes, sir. But I was still holding 

the position as a manager. We was just 

waiting for the paperwork to go through. 

Q All right. From evidence that's 

already been admitted, we understand that on 

July 2008, a certain Staff Sergeant Jackson 

out Fort Bliss, Texas, attempted to mail by 

air four one-gallon cans of paint, and while 

the UPS courier jet was on its way to 

Louisville, one of them popped open. Were you 

aware of this incident? 

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A My understanding, sir, that Staff 

Sergeant Jackson had air-freight four cans of 

paint, and it had arrived in Kentucky, and 

that the cans then broke inside the warehouse 

of Kentucky. 

Q All right. But you became aware 

of this incident when? 

A Immediately. 

Q In July of 2008? 

A Yes, sir. I received a phone call 

from the manager of Kentucky warehouse, 

advising me to come straight to the warehouse, 

but I was --

Q Do you recall what -- the incident 

occurred on July 3. Do you recall 

approximately when you received the call? 

A It would be after -- sir, I have 

it written down in my notes. I don't have my 

notes with me at this time. 

Q 

like that? 

A 

A day or two? A week? Something 

No. Same day. 

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Q Same day? Okay. And it's in 

evidence that on the 22nd of July, you met --

or excuse me. Let me rephrase that. On the 

24th of July, you met with the second in 

command at Camp Mabry to determine what to do 

to this situation. 

A That would be the Garrison 

Commander Madden, 

Q Okay. Did you have a meeting with 

him as 

A Yes, sir 

Q -- the evidence indicates? Okay. 

And just briefly, what kind of plan did you 

determine to take? 

A Sir, at that time, when I talked 

with Colonel Madden, we had to find out 

exactly what training the staff sergeant in 

Fort Bliss had. He was not one of mine. He 

was just the National Guardsman who was told 

to send it out. We needed to push for proper 

training to reinstate it again, to be notified 

when my official mail handlers, clerks or 

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managers, are no longer with that unit, to 

contact me, so I could get a replacement there 

as quickly as possible that is trained just --

Q 

memory? 

A 

Q 

To preserve the institutional 

Yes, sir, because --

All right. I'd like to show you 

Exhibit -- Respondent's Exhibit 2 

witness? 

MR. CROWLEY: May I approach the 

JUDGE GOODWIN: Sure, 

BY MR. CROWLEY 

And I'd like you to look at the 

date of that letter and ask you if you recall 

Did you write that letter? 

A Yes, sir, I did. 

Q Okay. What we have before us is 

an unsigned copy. 

A Yes, sir 

Q Did you eventually sign that 

and --

A The origina l did go to our then 

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legal advisor, Captain Tristan. 

Q Okay. On what date? 

June 

The date I sent it, on the 10th of 

Q Okay. 

MR. CROWLEY: I move to admit 

Respondent's Exhibit Number 2 in evidence. 

JUDGE GOODWIN: Mr. Ellis. 

MR. ELLIS: maintain the 

objection. And I wouldn't normally do this, 

except that there was correspondence with 

Respondent after the informal conference in 

this case, after which we requested corrective 

action, and part of that original response was 

Respondent's Exhibit 1, but it did not contain 

this letter from Ms. Gruetzner, and neither 

did the response to the Agency's motion for 

summary judgment. 

MR. CROWLEY: But our discovery 

response did. The request for production that 

we complied with in November contained that 

copy. 

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MR. ELLIS For the record, we 

just maintain the objection. 

JUDGE GOODWIN: Okay. I'm going 

to overrule the objection and receive 

Respondent's 1 as Respondent's 1. 

Respondent's 1 for identification is received 

into evidence as Respondent's 1. 

MR. CROWLEY: It's 2. 

JUDGE GOODWIN: I'm sorry. 

Respondent's 2 for identification is received 

into evidence as Respondent's 2. Respondent's 

1 has already been admitted. 

(The document referred to, having 

been previously marked for 

identification as Respondent's 

Exhibit 2, was received in 

evidence.) 

BY MR. CROWLEY: 

Q Ms. Gruetzner, would you -- the 

middle of that letter sets out in numbers 

certain actions. Do you see that? 

A Yes, sir 

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Q Were those the actions that you 

implemented the year before, in July of 2008? 

A Yes, sir 

Q Were they in effect when you wrote 

this letter in July of 2009? 

A No, sir, on the grounds that they 

stated they did not have the educational 

funding at that time. 

Q Okay. 

A But we did find a way to go around 

it, to give it free. 

Q Okay. How did you do that? 

A Sharon Jones is our HAZMAT manager 

for the National Guard. She was able to go 

through Little Rock, Arkansas, where we have 

the educational center, and they had online 

free to all military personnel and civilians 

this training, so we were able to do it on our 

computers during our off-time. 

Q And did you ensure that the 

training was taken by the --

A Yes, sir. Everybody gets a littl e 

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certificate, a small card, that shows that 

they have fulfilled the course 

recommendations. 

Q And do you monitor who is taking 

it and when they aren't taking it? 

A Yes, sir, we do. And we keep 

going back to them. Hey, guys, you need to do 

this, or else it will become an Article 15, 

which is a black mark on their records. So 

they usually do. Sharon Jones gets a copy of 

the certificate card, and I get notification. 

Q Okay. As I recall, in 2 008, when 

you were talking to the deputy commander, you 

were talking about using UPS. 

A Yes, sir. We wanted to go through 

the UPS program on HAZMAT and freight 

training, but it was 5,000 per student. We 

just did not have the money. 

Q All right. Thank you. 

MR. CROWLEY 

questions. Your Honor 

I have no furthe r 

JUDGE GOODWIN: Cross, Mr. Ellis ? 

(202) 234-4433 

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MR. ELLIS: Yes. 

CROSS-EXAMINATION 

BY MR. ELLIS: 

Q Respondent's counsel just asked 

some questions about their Exhibits 1 and 

Exhibits 2. I'm going to focus on 

Respondent's Exhibit 2, which is the June 10, 

2009, letter. 

A Yes, sir. 

JUDGE GOODWIN: I think she has 

the original 

Q 

BY MR. ELLIS 

This document doesn't list the 

names of any of the employees who took this 

training, does it? 

A That's correct, sir. 

Q And it does not have a record of 

the tests they would have taken. 

A That is correct, sir. 

Q And you mentioned that there was 

online training from UPS. 

A No, sir. From the educational 

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center in Little Rock. 

Q So this document doesn't contain 

that? 

A Does not, sir. 

MR. ELLIS: No further questions. 

Your Honor. 

JUDGE GOODWIN Redirect, Mr 

Crowley? 

Q 

REDIRECT EXAMINATION 

BY MR. CROWLEY: 

Do you recall in October of 2008 

sending information to Ms. Staci Baldwin of 

the FAA? 

A No, sir, I don't. I probably 

did. I write everything down, sir, so --

did I write it? 

MR. CROWLEY: May I approach the 

witness and see if this refreshes --

JUDGE GOODWIN: Show it to Mr. 

Ellis first. 

MR. CROWLEY: (Handing document.) 

JUDGE GOODWIN: Is that -- what 

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MR. CROWLEY: It's the cover 

letter to tab 1 that I did not --

JUDGE GOODWIN: Okay. That's the 

one that you objected to 

MR. ELLIS: Correct. I believe 

the question's been asked and answered. 

though. 

JUDGE GOODWIN: Well, let's -- I 

don't know what quality is yet. 

THE WITNESS: (Perusing 

document.) Oh, yes. I got all this. I 

sent her back -- yes. I do remember. 

BY MR. CROWLEY: 

Okay. So you recall sending this 

to her on October 24, 2008? 

A Yes, sir 

Q Did you ever get any response, 

asking for more details or more 

clarification of what you'd sent? 

A Not until this year, sir. 

MR. CROWLEY: Okay. Thank you. 

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No further questions 

JUDGE GOODWIN: Mr. Ellis? 

Anything else? 

recross 

MR. ELLIS: No redirect -- no 

JUDGE GOODWIN: Okay. Anything 

else, Mr. Crowley? 

MR. CROWLEY: No, Your Honor. 

JUDGE GOODWIN: Ma'am, you can 

step down. I do instruct you not to discuss 

your testimony with anybody prior to the 

conclusion of the case. You don't have to 

remain in the courtroom unless you want to. 

THE WITNESS: Thank you. Judge. 

(Whereupon, the witness was 

excused.) 

JUDGE GOODWIN: Anything else 

from either party? 

MR. ELLIS: No, Your Honor, 

JUDGE GOODWIN: Do you want to 

argue or submit? I mean, do you want to 

brief it or submit? 

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MR. CROWLEY: I would always 

rather make the oral argument. 

JUDGE GOODWIN: Okay. Get it out 

of the way? 

Ellis? 

MR. CROWLEY: Yes. 

JUDGE GOODWIN: All right. Mr. 

MR. ELLIS: Could you give me a 

couple minutes? 

JUDGE GOODWIN: Let's do this. 

Let's take a break until -- I can't tell if 

it's 20 minutes of 10:00 or ten minutes of 

8:00. 

MR. ELLIS: Twenty of 10:00. 

JUDGE GOODWIN: Okay. It's the 

perspective on the clock. Let's take a 

break until five minutes of the hour. We'll 

go off the record. 

taken. 

(Whereupon, a short recess was 

JUDGE GOODWIN: Mr. Ellis, do you 

want to be heard? 

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MR. ELLIS: Yes. If it pleases 

Your Honor, I'm going to stay at the table, 

because I have a lot of documents I may have 

to refer to 

JUDGE GOODWIN: Sure. 

CLOSING ARGUMENT ON BEHALF OF THE 

COMPLAINANT 

MR. ELLIS: First of all, thank 

you. Your Honor, for hearing this matter. 

Thank you to Respondent for appearing as 

well. The FAA's purpose in these matters is 

not only to penalize, but also to instruct 

where we feel like there needs to be some 

instructions, and we don't hold any ill will 

to anyone who asks for these hearings, and 

we leave it to the Judge to make the final 

decision, and we will accept that. 

Under the regulatory authority, 

which begins in 49 U.S.C. Section 5123, and 

under the FAA sanction guidance, which 

appears in FAA Order Number 2150.3(b), 

Appendix C, the FAA can seek a maximum civil 

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penalty of $50,000, multiplied by each and 

every distinct regulation cited in the 

complaint, if necessary. 

There is also a regulation which 

periodically raises the maximum sanction 

under 14 C.F.R. Section 13.3 01, and there's 

a table under Section 13.305(d) which shows 

the inflationary adjustments to the civil 

penalties. Here the FAA, however, is 

seeking a penalty of $30,000. This amount 

was decreased from the original amount of 

$33,950, to give consideration to 

Respondent's attempts at corrective action, 

even though the Agency, as we will explain, 

the training -- in training records sent to 

the FAA as corrective action did not meet 

the requirements of the regulations. 

The FAA originally published the 

FAA policy on enforcement of the hazardous 

materials regulations penalty guidelines 

back in April 21 of 1999, and I'm happy to 

say I was one of the authors of that 

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original penalty guidance. I'm very 

familiar with it, and this policy was 

published in the Federal Register at that 

time as well. It is now incorporated as 

Appendix C to FAA Order Number 2150.3(b). 

And under this policy, a civil 

penalty is determined by analyzing the 

statutory factors present in the Federal 

Hazards Materials Transportation statute. 

As I mentioned before, 49 U.S.C. 5123(a) 

includes the nature, circumstances, extent 

and gravity of the violation, the degree of 

culpability of the violator, any history of 

past violations, the ability to pay, and any 

effect on the ability to continue to do 

business and other matters as justice 

requires 

The statutory factors are then 

given a specific weight to determine the 

aggregate weight of the case, and then 

finally, we use a matrix to further narrow 

the penalty range, and in this case, it was 

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done as follows: 

Under the current policy, the 

first category of factors, which go to the 

nature of the material itself, nature, 

circumstances, extent and gravity of the 

violation, analyzes the material itself and 

the potential dangers it presented. 

Respondent's shipment involved flammable 

liquid or class 3 hazardous materials, and 

under the current policy this material is 

classified as category B material, which 

carries a moderate weight or moderate final 

aggregate weight. 

Next the policy requires the FAA 

to consider the violator's degree of 

culpability, and we found there to be no 

mitigating or aggravating factors in this 

category. The sanction guidance states that 

a Respondent's lack of a violation history 

may be aggravating, but is not mitigating. 

A violation-free history is expected to be 

the norm. And that I cite in the matter of 

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TCI Corporation, FAA Order Number 92-77 from 

1992 

Therefore, the final aggregate 

weight of this case was considered to be 

moderate, and after assigning an aggregate 

weight of moderate to the case, the next 

step is to first define the matrix. Because 

this shipment contained an undeclared 

shipment that was within the quantity 

limitations, this case falls into offense 

category 2 under the matrix, and this 

determination would be made by looking up 

the proper shipping name of the hazard 

material, in this case, paint, and the 

corresponding columns 9(a) and (b) of the 49 

C.F.R. Section 172.101, hazardous materials 

table 

This case would fall under at 

least column (b) of the matrix, which is 

business entity, and we say, at least, 

because the Respondent is not an individual, 

but we didn't feel that we should raise 

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their categorization to the point of being 

somebody that regularly handles HAZMAT, so 

we put them in the next category after 

individuals, which is business entity, which 

is category 2, column (b) of the matrix. 

And that carries a range of 

penalties from 1,500 for minimum weight 

cases to $8,200 for maximum cases for each 

violation. The moderate range of the matrix 

ranges from approximately $3,733 to 

approximately $5,966, and the median of the 

range is $4,850. And the original $33,950 

proposed civil penalty would have been 

supported by assigning a $4,850 penalty for 

each violation group. 

The FAA would have been justified 

in choosing any penalty in the moderate 

range for seven violation groups, so even 

though there are multiple violations cited 

in the complaint, we group them, in this 

case, into seven categories, one for each of 

the following: shipping papers, labels. 

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marking, packaging, lack of training, 

release of the material, and lack of 

emergency response information, which 

produced a total amount of $33,950. 

Now, the FAA gave Respondent 

credit for the training it implemented by 

reducing the penalty to $30,000 when it 

issued its final notice. 

Now, I want to talk a little bit 

more about mitigation. Even though the 

evidence indicates that Respondent's 

corrective action doesn't meet the 

requirements of the regulation, I'll say a 

little bit more about why in a minute. As a 

good-faith offer of settlement, the FAA has 

mitigated the civil penalty from the 

justified original amount. Respondent was 

provided with an informal conference on May 

20 of '09. 

The FAA informed Respondent that 

it needed to see documentation of any 

corrective action it wanted the FAA to 

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consider by June 3. A week after that 

deadline date, on June 10, Respondent 

provided the documents they wanted the FAA 

to consider, and we did previously attach a 

copy of those to our motion, but it's pretty 

much similar to either tab 1 or tab 2 or 

both. 

These documents did not meet the 

applicable training requirements of 49 

C.F.R. Section 172.700, et seq. For 

example, the document contains no 

documentation of any of the types of 

training required by 49 C.F.R., Section 

172.704(a). The July 28, '09, letter, 

everything that's listed under the five 

types of corrective action that are 

described, they're all prospective. Nothing 

had been completed at that time. 

Additionally -- one moment. Your Honor. 

(Pause.) 

MR. ELLIS: There was no record 

of training in the documents as well. 

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Again, in the June 10, '09, letter, as the 

witness testified this morning, there were 

no names of employees trained under that --

at that time as well, and this was a year 

after the original incident. Also the 

language in that was also prospective, so 

there was really no documentation under the 

regulations that the FAA would require, and 

these requirements are set out very clearly 

in 49 C.F.R. Section 172.704(d), which 

requires what is necessary for a proper 

training record. 

As we stated earlier, no 

mitigating factors are present. Even if the 

corrective action Respondent submitted 

was -- is considered by the Judge to be 

legally sufficient, according to the HMRs, 

the kind of corrective action Respondent 

presented can be considered neither timely 

nor comprehensive, and I'm citing a TSI 

Corporation, which is Order Number 92-77, 

page 21, from 1992, which states, "A 

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carrier's swift action designed to better 

ensure future compliance may warrant such a 

reduction." 

But the DOT has also -- the 

Administrator has also stated that no credit 

should be given for training that is legally 

required for Respondent's employees and 

agents, so even doing training after being 

notified of a violation, doing the training 

that's required by the regulations is not 

something that causes the FAA to require any 

reduction in civil penalty, but we wanted to 

give some credit for the effort that they 

showed us. But we would be remiss in 

allowing people to think that records that 

don't meet the requirements of the 

regulation are sufficient. 

I also wanted to cite FAA Order 

2150.3(b), Appendix C, at C-11, which says, 

"A corrective action that results in 

mitigation is remedial action that exceeds 

the minimum legal requirements." 

(202) 234-4433 

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materials is inherently dangerous. A 

hazardous material is defined in the HMR as 

a substance or material that the Secretary 

of Transportation has determined is capable 

of posing an unreasonable risk to health, 

safety and property when transported in 

commerce, and it has been so designated. 

That's 49 C.F.R. Section 171.8. 

Therefore, shippers of inherently 

dangerous materials, such as hazardous 

materials, have a very high duty of care, 

even if they are a first-time shipper, 

because of the nature of these materials. 

They present a danger unto themselves, 

regardless of the intent of the person 

offering it, so a person cannot prepare and 

offer a shipment without the proper training 

and preparation, packaging, marketing and 

labeling of the shipment. 

In addition to the inherent 

danger of this material, the particular 

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shipment was undeclared, meaning there was 

no paperwork, markings or labels, to let the 

carrier, the pilot, or anyone else know the 

dangers inside that box. An undeclared 

shipment destroys the entire regulatory 

scheme set up to prevent such packages from 

being transported. 

There was no emergency response 

information or telephone number with the 

shipment, to let the pilot know how to 

properly segregate the material or to let 

the first responders react properly, if 

there was a spill of the material as there 

was in this case. As explained in detail 

above. Respondent had the knowledge, or if 

it exercised reasonable care, would have had 

knowledge that the shipment contained 

hazardous materials, and under the 

circumstances, the proposed civil penalty is 

supported by the statute, the regulation, 

the policy, and the case law. 

I just wanted to address one 

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thing Respondent said in opening regarding 

the regulations and the sanction guidance. 

Respondent stated those were not the FAA's 

sanction guidance. Those were pipeline and 

hazardous materials sanction guidance. Each 

DOT mode is allowed to do its own sanction 

guidance, and being the air mode, the FAA's 

sanction guidance tends to have the highest 

penalties, because naturally, once a package 

is in the air, there's really nothing that 

can be done once it's put up there, so all 

the regulations exist to prevent undeclared 

HAZMATs from getting on the plane, and the 

sanctions are, therefore, higher. 

Wherefor, in conclusion. Your 

Honor, the Complainant requests the 

Administrative Law Judge to issue an order 

fixing the civil penalty at the requested 

amount, $30,000. 

JUDGE GOODWIN: Mr. Crowley. 

CLOSING ARGUMENT ON BEHALF OF THE RESPONDENT 

MR. CROWLEY: May it please the 

(202) 234-4433 

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Court, Counsel, as I mentioned in my opening 

statement, the Guard, from the outset, has 

responded to this situation. They have not 

fought the liability part. They assumed 

responsibility for it. In the same month, 

July of 2008, Ms. Gruetzner -- and I hope I 

pronounce her name right -- was acting, 

developing a plan on how to implement 

corrections to comply with the regulations. 

She sent a copy of that to the 

FAA in October, and that, what she sent, is 

there in Exhibit 1. She did not receive any 

feedback that that plan was inadequate or 

that other matters should be addressed by 

it. Then this action for a civil penalty 

was filed. The Agency, the Guard, did not 

oppose or contest the liability portions, 

but felt the initial penalty and the 

ultimate penalty of 30,000 was excessive, 

and I have to agree with that. 

When you consider all the 

factors -- and counsel may well be right. I 

NEAL R. GROSS 

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may have -- I'm not going to concede the 

point right now, but the Appendix A that I 

mentioned may not be applicable, but 

counsel's own exhibit basically employs the 

same criteria, and I think it's fair for us 

to argue those criteria. 

An undeclared shipment happened, 

and the penalty for that is $15,000, and 

that's what we suggest is a proper civil 

penalty, because the Guard took action, took 

action promptly, took action extensively. 

They didn't just discipline Staff Sergeant 

Jackson or focus their efforts on Fort 

Bliss. They made a statewide -- they 

developed statewide programs and followed up 

on them, and they sent copies of what they 

were doing to the FAA in the fall of 2008. 

The nature of this should be 

considered. Paint, yes, is flammable 

substance, and you should not ship it 

without complying with every regulation that 

is applicable. But on the other hand, it 

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wasn't a crate of grenades or something that 

Sergeant Jackson sent. The paint did come 

open, and it spilled. And fortunately it 

didn't ignite. In fact, none of the other 

packages were even hurt. They were able to 

ship them off. Four gallons of paint, one 

gallon came open. 

The Guard took responsibility. 

It took corrective action extensively and 

promptly. There has been no repeat of this. 

This is the first time the Guard has been 

faced with this situation, and I think, if 

anything, a $15,000 fine is appropriate, 

because up until right now, this day, 

neither I nor the Guard has been aware of 

what is lacking in the safety programs that 

have been implemented. There has been no 

feedback from the FAA for over two years as 

to what was inadequate. 

When the informal conference was 

held, it simply came down to a request for 

documentation on what had been implemented. 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

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We sent it, got no response. Four months 

later, we get the notice that the final 

penalty is going to be imposed, and only 

after that, in response to my letter 

expressing surprise, were we told that, 

well, it was inadequate. And we've never 

been told how. 

There was a reference simply to. 

See 172.700, et seq., which is about five or 

six sections. As indicated in our brief, 

the actions taken by the Guard do comply 

with that particular section, 172.703 and 

704. And using the criteria of the 

regulation, 13.16(c), I think it is fair to 

hold the Guard up as an entity that is a 

model on how to respond. 

Until this final argument, I had 

no idea what was lacking in the Guard's 

programs that they implemented, and now 

we're told that the records don't meet the 

requirements of the regulation. I 

respectfully disagree. But had we been told 

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1 that in the fall of 2008, certainly more --

2 you know, we could have taken more 

3 corrective action. 

4 I don't know what more the Guard 

5 could have done, and I think it is fair in 

6 assessing a penalty to assess a penalty for 

7 undeclared shipment, $15,000. The other 

8 allegations should be subsumed within that, 

9 because they are part of the same 

10 transaction. And I represent governmental 

11 entities in my practice. 

12 The Attorney General represents 

13 state agencies when they get to court, and I 

14 know how agencies, when they put a comb --

15 start combing through their own regs, can 

16 marshal significant number of violations in 

17 the same transaction. That's what's 

18 happened here, and we would ask that the 

19 Court take a common-sense approach, fine the 

20 Guard for undeclared shipment $15,000, and 

21 in fairness to the efforts the Guard has 

22 made, subsume the rest of the fines into 

(202) 234-4433 

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that amount. Just make one fine for 

everything that happened. 

And probably to the relief of 

everybody, I'm not going to go into more 

detail. I would ask the Court to read our 

memorandum, because that does describe some 

of the specifics and how we think they 

apply, and I do thank the Court and counsel 

for all of your time. 

rebuttal? 

Honor 

JUDGE GOODWIN: Mr. Ellis, any 

MR. ELLIS: Just a bit. Your 

REBUTTAL CLOSING ARGUMENT ON BEHALF OF THE 

COMPLAINANT 

MR. ELLIS: Again, Respondent 

mentioned documentation sent to the FAA in 

October of '08, I believe. Again, our 

records don't show any reception or 

receiving of these documents, and as I 

indicated in my closing, you know, the 

documents that were sent, even after the 

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61 

1 informal conference, still don't meet the 

2 requirements of the regulation, and 

3 certainly by the time the informal 

4 conference arrives is really too late to 

5 consider Respondent's corrective actions to 

6 be in any way swift. 

7 And it is not the Agency's 

8 responsibility to train Respondent's counsel 

9 or for them to -- or to inform them how they 

10 have to train their personnel. In fact, in 

11 most cases, it wouldn't be possible for the 

12 Agency to do that, not knowing the specific 

13 nature of the employee structure and 

14 employees in the locations that that 

15 training would be affected by. 

16 As I also stated earlier, we do 

17 want it to be clear that we did offer the 

18 reduction we offered because we do think 

19 they gave an effort. However, again, we 

20 would be remiss in offering any more than 

21 that, because these records are all 

22 prospective. I mean, they do show an effort 

(202) 234-4433 

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to do something, but it's incomplete. 

Every step in the earlier July 28 

letter is describing a step in the future, 

and even the letter a year later, the 

training that they described, for example, 

the UPS modules, are also prospective, so 

this is not something that could be 

considered to be meeting the requirements of 

Section 172.704(d). 

And just in conclusion, the FAA 

obviously puts a great deal of work in 

setting these civil penalties. They are the 

focal point of all these HAZMAT cases, 

because we know that it is the part of the 

case that will be scrutinized by Respondent 

and by the ALJ, and in doing that, we put a 

great deal of work in our sanction guidance. 

And it is what was followed 

precisely in this case. All statutory 

factors were considered, and the penalty of 

$30,000 was set accordingly, and we ask Your 

Honor to fix the penalty as such. 

(202) 234-4433 

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JUDGE GOODWIN: Okay. Thank you, 

gentlemen. We'll go off the record. A 

decision will be forthcoming. 

(Whereupon, at 10:20 a.m., the 

hearing in the above-entitled matter was 

concluded.) 

(202) 234-4433 

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clearly 50:9 

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clock 41:16 

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comply 55:9 58:11 

complying 19:1 

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conduct 7:21 

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initial 15:17 55:18 

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instructions 42:14 

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56:13 57:2 

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Neal R. Gross & Co., Inc 

202-234-4433 
n 13 

CERTIFICAT E 

This is to certify that the foregoing transcript 

In the matter of: FAA v Texas Army National Guard 

Before: uS DOT 

Date: 01-04-11 

Place: Austin, TX 

was duly recorded and accurately transcribed under 

my direction; further, that said transcript is a 

true and accurate record of the proceedings. 

Court Reporter 

r-

(202) 234-4433 

NEAL R. GROSS 

COURT REPORTERS AND TRANSCRIBERS 

1323 RHODE ISLAND AVE., N.W. 

WASHINGTON, D.C. 20005-3701 www.nealfgross.com