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SERVED': FEBRUARY 28,2017 

U.S. DEPARTMENT OF TRANSP(0ltf~T OF 

OFFICE OF HEARINGS"RANSPORTAT\ON 

In The Matter Of: 

FEDERAL EXPRESS 

Respondent 

WASHINGTON, DC lOll ~AR _2 p \: \3 

) 

) 

) 

) 

) 

DOCKET OPEFtATlONS 

Docket No. FAA-2015-3306 

Case No. 2015NM720020 

ORDER TAKING JUDICIAL NOTICE OF CERTAIN FACTS, AND 

DENYING THE RF\~PQN:P,jENT:~·S MOTION TO DISMISS ! :; 1 i. ,{_ T: 1~ .. ' ' 

On September 9, 2015, the FAA filed a Complaint (dated August 31, 2015) with the 

Office of Hearings. 

On September 29, 2015, the Respondent, Federal Express, filed an Answer to the 

Complaint In Part and Motion to Dismiss the Complaint In Part ("Answer" and "Motion to 

Dismiss"). 

On October 9, 2015, the FAA filed the Complainant's Motion [sic] Opposing 

Respondent's Motion to Dismiss1 ("Opposition"). 

A. Introduction 

L The FAA's Complaint I • _-. . ,. ':t. ' . "···•!• . '(.\\} t.7~JdJ..c'!l\~ ~;>'.1 

The FAA alleged that the Respondent Jlad committed two (2) regulatory violations 

involving hazmat transportation on or about December 10, 2014. (Compl. 3, §III~ 1(a)-(b); 

,

1 Although the FAA titled its October 9, 2016 document as a "Motion", it did not contain a new motion. Rather, it 

was the FAA's arguments, as a responding party, opposing the Respondent's September 29,2015 Motion to 

Dismiss. ( Opp. I § I.) It should be noted, therefore, that upon receipt of a motion, a responding litigant may file an 

"answer" (14 C.F.R. § 13.218(d)), or a Response, or an Opposition to the motion, in which the responding litigant 

states its position on the movant's request for relief. A responding litigant may also oppose a motion by the 

submission of a brief and/or other material. Steven Baicker-McKee, et al., Federal Civil Rules Handbook, 351 (West 

Publishing 2016); See also, 60 C.J.S. Motions and Orders,§ 30 (Thomson Reuters, 2011). 
Opp'n, 1, §II.) Specifically, the FM's August 31,2015 Complaint charged the Respondent 

with one (1) violation of 49 C.F.R. § 175.3 (accepting and transporting hazmat not properly 

prepared for shipment) ("Violation No, .1 ").and op.e (l) violation of 49 C.F.R. § 172.303 ( .. :·::. r·:.'~Y~ .... \·;:··~ ... ~1-~ 

(accepting a properly marked hazmati~liipm~rit<t'liui'tldid not contain hazmat) ("Violation No.2"). 

(Compl. 3, §III (l)(a)-(b).) The FAA proposed a total civil penalty of$18,000 for the two (2) 

violations. (Compl. 3, § III~ 3). 

2. Respondent's Answer and Motion to Dismiss 

On September 29, 2015, the Respondent filed a combined Answer and Motion to 

Dismiss. The Respondent admitted that it had committed a violation of 49 C.F.R. § 172.303(a) 

(Violation No. 2).2 In its Answer, the Respondent then broadly denied "any liability" for 

Violation No. 1, and referred to its Motion to Dismiss. (Answer, 2 ~ 7.) 

In its Motion to Dismiss, the Respondent asserted that the FAA's alleged violation of 49 

C.F.R. § 175.3 (Violation No. 1) (Compl. 3, §III., 1(a)), should be dismissed under 14 C.F.R. 

§13.218(f)(2)(ii),3 "as a matter oflaw and reasonable statutory interpretation." (Mot. Dismiss, 

3.) The Respondent also asserted that the ~~;Af~:H~a1·Mmed to state a claim" warranting the 

i' < ~P ''i· ·j,:,.p.,·l".:v·'· 

proposed $18,000 civil penalty. (!d. ~t2.) Thus, the Respondent filed a specific Answer to 

Violation No. 2, but raised a Motion to Dismiss in lieu of a specific answer to Violation No. 1. 

B. Brief Overview of 14 C.F.R. § 13.218(t)(2) 

Pursuant to the general language of 14 C.F.R. § 13.218(f)(2), any party in a civil penalty 

proceeding may file a motion to dismiss a civil penalty action, "specifying the grounds for 

dismissal." There is no time limit for filing such motion. The regulatory section then provides 

specific types of dismissal and other motions a litigant may consider. 

2 Pursuant to 49 C.F.R. § 172.303, the Respondent agreed thaf.~;had accepted for transport a package (i.e., FedEx 

Air Tracking Number 8064 3853 1247) that dldllnot):eQfiiiiitf~Ph'dmrdous material but which had a marking indicating 

that the material contained within the package'+!~s h~afdo'u~:c(Ans. 2,11 5, 7.) 

3 14 C.F.R. § 13.218(t)(2){ii) provides that a motion to dismiss may be filed in lieu of an answer. 

Page 2 of12 
•, .... \ .... 

i ~-~dirt~ 

~; .. i:." ~ 

For example (not inclusive), pursuant to 14 C.F.R. § 13.218(f)(2)(ii), a respondent may, 

prior to filing an answer, move to dismiss the complaint on any specified grounds.4 This broad 

type of preliminary dismissal motion, filed prior to filing an answer, appears to include the 

preliminary challenge to the sufficiency of a pleading identified in Federal Rule of Civil 

Procedure 12(b)(6). In a Rule 12(b)(6) motion, a party may, prior to filing an answer, move to 

dismiss a complaint on the grounds that the pleading fails "to state a claim upon which relief can 

be granted." Rule 12(b)(6); Steven Baicker-McKee et al., Federal Civil Rules Handbook, 482 

(Thomson Reuters 2016). 

The Rule allows trial courts to terminate lawsuits "that are fatally flawed in their 

legal premises and destined to fail, and thus to spare litigants the burdens of 

unnecessary pretrial and trial activity." 

': .. •. ·-~ ' . ~J ~! .•' 

Baicker-McKee, supra, at 483 (footndt~;-omitted)' ... i ' ' ;'·.t:.t· 

Thus, in a Rule 12(b)(6) motion, the pleadings are tested to determine if they lack legal 

authority, or the "factual tale is implausible." !d. at 483, 505; See also, Charles Alan Wright and 

Arthur R. Miller, 5B Fed. Prac. & Proc. Civ. § 1356 (3d ed. 2016). If a pleading is legally 

insufficient to constitute an action or defense, the movant should not be compelled to go forward 

in the action, because no legal cause can be proven. Baicker-McKee et al., supra, at 483 and 501; 

71 C.J.S. §§ 230 and 239 (2011). 

[F]ederal pleaders must demonstrate that their allegations "possess enough heft" 

to show an entitlement to relief (and thus, are sufficient to allow the costly 

process of litigation to continue.) 

Baicker-McKee et al., supra, at 484 (footnotes omitted). 

Dismissal of the action, prior to the filing of an answer, is warranted if the movant can 

show that there is insufficient fact orlnw tOiSt~pppidhe pleading. 5 

4 This would include (but is not limited to)fair notice pleading challenges allowed by inference under the broad 

umbrella language of 14 C.F.R. § 13.218(f)(I). For a detailed discussion about "fair notice" and the sufficiency of 

pleadings, see, Delta Air Lines, Inc., FAA Docket No. FAA-2014-0814, Order Denying the Respondent's Motion to 

Dismiss for Insufficiency of Pleadings (April 19, 20 16). 

5 In civil penalty cases, the FAA must provide sufficient "fair notice" of the allegation(s) and civil penalty requests 

in its pleading. Thus, the contents of an FAA complaint must contain certain legal and fact information pursuant to 

14 C.F.R. § 13.208(c). This requirement for sufficient allegation content in a pleading in a FAA civil penalty action 

is similar to the pleading requirement in Federal Rule of Civil Procedure 8(a), which requires, in part, "a short and 

Page 3 of 12 
I. Burden of Proof and Standard of Review 

In a Rule 12(b)(6) motion, the moving party (herein the Respondent) has the burden of 

proof. Baicker-McKee et al., supra, ·a:h48Q;_~~~qtJlq~~irectv, Inc. v. Treesh, 487F.3d 471,476 t- ~ -··; ... · <·i. : .:. ;~ 

(6th Cir. 2007); Carver v. Bunch, 946 F.2d 451,454--55 (6th Cir. 1991). The standard for 

reviewing pleadings under either type of motion is one of liberal construction in favor of the 

pleading party. Charles Alan Wright and Arthur R. Miller, supra at§ 1356. 

[T]he court presumes that all well-pleaded allegations are true, resolves all 

reasonable doubts and inferences in the pleader's favor, and views the pleading in 

the light most favorable to the non-moving party. No claim will be dismissed 

merely because the trial judge disbelieves the allegations or feels that recovery is 

remote or unlikely. 

Baicker-McKee et al., supra, at 483. 

2. Limited Extrinsic Materials May Be Considered 

Because a Rule 12(b)(6) motion tests the adequacy of the pleadings, the Court's inquiry 

is focused within the four comers of the complaint. Occasionally, however, certain limited 

extrinsic materials may be considered1ai pA~~~·I~t~ding review. Such limited materials may ;;.· . . . ··:. . 

include matters on which judicial notice may be taken, matters of public record, and/or matters 

that are consistent with the pleadings. /d. at 493. 

3. Factual and Legal Plausibility in Pleading Required 

Although the standard of review in a Rule 12(b )( 6) motion is one of liberal construction, 

a pleading must still provide sufficient allegations to make the entitlement to relief"plausible." 

/d. at 488. Well-pleaded facts must be accepted as true. Scheuer v. Rhodes, 416 U.S. 232, 236 

(1974); see also Westlake v. Lucas, 537 F.2d 857, 858 (6th Cir.1976). However, the court does 

not need to accept as true legal conclusions or unwarranted factual inferences. See Westlake, 537 

F.2d at 858; Davis H Elliot, 513 F.2d at 1182; Blackburn v. Fisk University, 443 F.2d 121, 124 

(6th Cir.1971). 

____________ __,'_l~.:;;:;·i1_· ....:;;...1i"tj~}1~'~;'h1l~f, 

plain statement of the claim showing that the pleader is entitled to relief; and ... a demand for the relief sought .... " 

Fed. R. Civ. P. S(a). 

Page 4of12 
In essence, the complaint must "affirmatively suggest an actual entitlement to reliefby 

supplying allegations that push the claim above the level of mere speculation." Baicker-McKee 

et al., supra, at 488. A pleading must show "more than a sheer possibility that the defendant has 

acted unlawfully." Wesley v. Campbell, 779 F.3d 421, 427-28 (6th Cir. 2015) (quoting Rondigo, 

L.L.C. v. Twp. of Richmond, 641 F.3d 673,680 (6th Cir.2011). Thus, depending on what is 

alleged, the factual presentation in the complaint may need to be "far fuller" in some cases. 

Baicker-McKee et al., supra, at 489. 

4. Ambiguity or Insufficient Information in the Complaint 

If the complaint is ambiguous i:k·do~s·~b~0oiitain sufficient information to allow a 

responsive pleading to be framed, dismissal under Rule 12 is not appropriate; instead, the proper 

remedy is a motion for a more definite statement under Rule 12(e). See Charles Alan Wright and 

Arthur R. Miller, SB Fed. Prac. & Proc. Civ., supra, at§ 1367. Alternatively, the court may also 

permit "clarifications" in briefs, Baicker-McKee et al., supra, at 490, 493, or allow a pleader the 

opportunity to amend its pleading, id. at 495. 

5. Rule 12 Dismissal Motions Distinguished from Summary Judgment 

A Rule 12(b)(6) motion must be distinguished from a motion for summary judgment. 

For example, a Rule 12(b)(6) motion "only tests whether the claim has been adequately stated in 

the complaint." Charles Alan Wright and Arthur R. Miller, supra,§ 1356 (3d ed., 2016). As 

such, a motion under Rule 12(b)(6) is limited to the content of the complaint. Id. In contrast, a 

motion for summary judgment typically involves a wide variety of matters outside the complaint, 

which may include (but is not limited ld) res'p~ti~:V.~ipleadings, depositions, answers to 

interrogatories, affidavits, stipulations, etc. See 14 C.F.R. § 13.~18(f)(5); Fed. R. Civ. P. 56; see 

also, Baicker-McKee et al., supra, at 493. 

6. Ruling on the Merits Only if Rule 12(b)(6) Motion Granted 

If a Rule 12(b )( 6) motion to dismiss is granted for failure of the pleader to plausibly state 

a claim upon which relief may be granted, such dismissal is deemed to be a ruling on the merits. 6 

6 The FAA's regulations mirror this federal practice, since 14 C.F.R. § 13.218(f)(2}(ii) provides that "[i]fthe motion 

to dismiss is granted and the proceedings are terminated without a hearing, the agency attorney may file an appeal 

pursuant to§ 12.233." 

Page 5 of 12 
However, if such motion is denied, there is no converse ruling on the merits. An order denying a 

Rule 12(b)(6) motion "does not conclusively resolve anything" nor does it forecast whether the 

case could survive a summary judgmel').t motion. Baicker-McKee et al., supra, at 496. . . 

c. Discussion l. ia"; \~{~·~:~J\~gi:J~;-~d~ 

All materials and arguments have been reviewed and considered, but only certain matters 

will be highlighted in this discussion. 

In this case, the Respondent is specifically challenging the legal sufficiency ofthe FAA's 

pleading regarding Violation No. 1. Because the Respondent filed an Answer combined with a 

Motion to Dismiss, it was initially unclear whether the Respondent was seeking the equivalent of 

a Rule 12(b )( 6) motion or whether the Respondent was seeking the equivalent of a Rule 12( c) or 

Rule 56 motion. 7 However, after careful review of the Respondent's Answer and its Motion 

materials, it appears that the Respondent's Motion to Dismiss Violation No. 1, brought pursuant 

to 14 C.F.R. § 13.218(f)(2)(ii), is properly considered as equivalent to a Rule 12(b)(6) dismissal 

request. 

1. Brief Overview of the Parties' A.t:gu'illepts! 1 

The facts offered in support of the FAA's charge allege a failure by the Respondent to 

inspect the hazmat package for specific markings that, according to the regulations, a shipper is 

.supposed to provide.8 In regard to Violation No. 1, the Respondent agreed that the December 10, 

2014 hazmat shipment had not been marked as required by 49 C.F.R. § 173.27. 

However, Respondent asserts that an air carrier's responsibilities for acceptance 

ofhazardous materials are expressly governed by 49 C.F.R. § 175.30 and having 

complied with its responsibilities under 175.30, Respondent cannot, as a matter of 

law and reasonable statutory interpretation, be held in violation of 49 C.F.R. § 

175.3 for accepting and transporting improperly prepared hazardous material. 

(Mot. Dismiss 3.) 

7 A Rule 12( c) motion is very similar to a Rule 12(b )( 6) motion, but it tests the adequacy of the pleadings after an 

answer is filed. Baicker-McKee, supra, at 500-504., The general language of 14 C.F.R. § 13.218(t)(2), which allows 

for all manner of dismissal motions at any time, appears to encompass the equivalent of a Rule 12( c) motion. 

;, }:,.i"} ~:J~ti~~~hit~!i'• ,, 8 Specifically, that a plastic drum in which hazmat Resin Solution was transported did not conform to the 

requirements of 49 C.F.R. § 173.27(c)(3)(ii) because the shipper did not include on the drum a marked test pressure 

of 80 kPa or higher. 

Page 6 oflZ 
Among other things, the Respondent asserted that an air carrier 's functions and 

responsibilities for hazmat transportation were "generally" contained in 49 C.F.R. Part 175. In 

contrast, a shipper's functions and requirements for hazmat transportation were generally 

contained in 49 C.F .R. Part 173. According to the Respondent, the FAA was attempting to 

improperly "impute" to the Respondent, an air carrier, the responsibilities that were specifically 

assigned by Part 173 to shippers. The Respondent asserted that the FAA was erring as a matter 

oflaw by charging the Respondent with a general violation under 49 C.F.R. § 175.3, utilizing 

facts that would not support a charge against an air· carrier under the specific inspection I" ·• ~ -,~. ~·f}> .t I :,..(~.i;~;t( 

requirements listed in 49 C.F.R. § 175i~30. ~ltfiiift.ti£:i.:4~)"In other words, the FAA was applying an 

overly broad interpretation of the general regulatory language in 49 C.F.R. § 175.3 to "place[] 

additional acceptance requirements on air carriers," which were not specifically required as 

"carrier" responsibilities under 49 C.F.R. § 175.30. (Mot. 6.) 

In its Opposition, the FAA did not dispute that 49 C.P.R. Part 175 was specifically titled 

"Carriage by Aircraft" while 49 C.P.R. Part 173 was specifically titled "Shippers- General 

Requirements for Shipments and Packagings." The FAA also did not dispute that the Respondent 

had fully complied with all the specified carrier inspection requirements, as listed under 49 

C.F.R. § 175.30, for "inspection" ofhazmat. (Opp'n. 3.) 

The FAA argued, however, that 49 C.F.R. § 175.3 could be utilized to charge a carrier 

with a hazmat violation not otherwise provided in Part 175, because "[r]egulations must be 

construed 'so that effect is given to all t~s provisions.;'" so that no part will be inoperative or · , . ,c::~·· ..... ; ·. n~ :h: 

superfluous, void or insignificant."' ((l)pp'ri'~.q!'}t,t6tiil'~ United States v. Gross, 73 M.J. 864, 870, 

fn. 6 (A. Ct. Crim. App.2014)). According to the FAA, the plain language of section 175.3 

created a general violation category independent of the specific requirements contained in 

section 175.30 and was, therefore, separately enforceable against a carrier. (/d. at 3-4.) 

2. Request for Judicial Notice ofF AA Adjudication History 

A factual element of proving any violation of the HMR is that the respondent knowingly 

committed the violation, meaning the respondent either had actual knowledge of the facts giving 

rise to the violation, or a reasonable person acting in the circwnstances and exercising reasonable 

care would have that knowledge. 49 U.S.C. § 5123(a). 

Page 7 oflZ 
As part of its Motion, the Respondent asserted that it could not have factually known or 

reasonably known about the risk of potential violation herein (i.e., Violation No. 1), because the 

FAA has never "fully adjudicated" a civil penalty c.ase by charging an inspection violation 

against a carrier solely under 49 C.F .R.~~§ 1 173'.1t-(M.ah Dismiss, 7). The Respondent requested (in 

part) that the court take judicial notice 9 of the FAA's prior adjudication history, which indicated 

that the FAA had always charged hazmat violations against a carrier under both the general 

carrier acceptance requirement found in 175.3 and the specific carrier inspection requirements 

found in 175.30. (ld.) 

In its Opposition, the FAA did not specifically respond to the Respondent's request for 

judicial notice to be taken regarding the FAA's prior adjudication history. The FAA appeared to 

concede, however, that its action in charging the Respondent solely under 49 C.F.R. § 173.3 had 

"not been" previously "addressed." (Opp'n 5.) 

In a Rule 12(b)(6) motion, taking judicial notice regarding the scope and history of the 

FAA's civil penalty prosecutions is a matter of judicial discretion. It is well-established, 

however, that "concessions by plaintiffs m;:tde.in their.response" may be considered. BaickerMcKee et al., supra, at 493. Thus, thet~¢sp.i5,n~ti'ti'ls~request that the Court take judicial notice 

that "the FAA has never fully adjudicated a civil penalty against an air carrier for failing to 

properly inspect and accept a hazardous material shipment for transportation by air in which the 

sole regulation cited was 49 C.F.R. § 175.3, i.e. all such decisions cite section 175.3 in 

combination with section 175.30" should be granted. (Mot. Dismiss 7.) 

3. Request for Judicial Notice ofPHMSA Public Records 

The Respondent also requested that the Court consider certain PHMSA rulemaking and 

regulatory interpretations in considering the sufficiency of the FAA's pleading. In response, the 

FAA did not dispute the content of the PHMSA's public records. Thus, the content of the 

PHMSA records may accepted by judicial notice, since they appear to be matters of public 

record. See, Baicker-McKee et al., supra, at 493. 

9 Pursuant to Federal Rule of Evidence 20l(b}:;:jttdiMh'ltiiWcr&.~f'adjudicative facts is typically limited to fact(s) that 

are not subject to reasonable dispute because the fact(s) are either: "(1) generally known within the trial court's 

territorial jurisdiction" or "(2) can be accurately and readily determined from sources whose accuracy cannot 

reasonably be questioned." Fed. R. Evid. 201(b)(l)-(2). 

Page 8 of 12 
Based on the PHMSA' s records, the Respondent argued that nothing specific has ever 

been published in the hazmat regulations to notify it, or other carriers, that it risked this newly 

alleged violation under 49 C.F.R. § 173.3. The regulatory interpretations published by the 

PHMSA have never indicated that an air carrier must ensure, as part of its inspection 

responsibilities, that a hazmat shipper had properly marked a package with a specific hydrostatic 

test mark before accepting the hazmat package. (Mot. Dismiss 7.) 

In response, the FAA argued (in part) that even if prior similar violations against carriers 

had always been charged by the FAA utiliZing botn'sections 175.3 and 175.30 in combination, 

this did not preclude the FAA from cl~afkiri~~ t~t?:~~~'§'pondent herein solely under section 17 5.3. 

(Opp'n 4.) The FAA also asserted that there was no regulatory history to preclude it from 

bringing an action against the Respondent or other carriers under 49 C.F.R. § 173.3. (Id.) 

4. General versus Specific 

The parties agreed that the "inspection" requirements for an air carrier, listed in 49 C.F.R. 

§ 175.30, did not specifically include requiring an air carrier to inspect a hazmat shipment for a 

test pressure marking that shippers are required to include on certain hazmat shipments, pursuant 

to 49 C.F.R. § 173.27(c)(3)(ii). The parties also agreed that the FAA did not charge the 

Respondent with violating the specific requirements assigned to either an air carrier under 49 

C.F.R. § 175.30, or assigned to a shipper under 49 C.F.R. § 173.27(c)(3)(ii). Instead, the FAA 

charged the Respondent under the general air carrier acceptance provision of 49 C.F.R. § 173.3. 

(Compl. 3, § III~ 1 (a).). The FAA's,dted 'generaltre.gulation, 49 C.F.R. § 173.3, provides: 

~r.l r,·~. ~~fij.:~.~h~ ' 

A hazardous material that is not prepared for shipment in accordance with this 

subchapter may not be offered or accepted for transportation or transported 

aboard an aircraft. 

49 C.F.R. § 175.3 (emphasis added). 

It was undisputed that the words "this subchapter" in 49 C.F.R. § 175.3 (above) 

references "Subchapter C- Hazardous Materials Regulations." Subchapter C includes both Part 

173 (i.e., "Shippers - General Requirements for Shipments and Packagings") and Part 175 (i.e., 

"Carriage by Aircraft"). 

Page 9 of 12 
5. Overlapping v. Coextensive Regulations 

~ .... !.\\. ;L,d.t~ .. ~t·r5~ .. 

The Respondent did not disp~t~Jha(.~pe, ~l~~~')anguage of section 175.3 incorporated ~' .. ,.~. ·.' '\-io;t-.~.,:t-,~ ... ~)!.;,.-.;~11' l' t' . .. . 

both Part 173 and 175. However, the Respondent asserted that regulatory practice, 

interpretations, and past adjudications provided no notice to the Respondent (or any air carrier) 

that a hazmat inspection and acceptance violation could be charged against an air carrier solely 

under section 175.3, independent of the specific inspection requirements listed in section 175.30. 

In its Opposition, the FAA asserted that "[t]he fact that [Section] 175.3 is a broad rule of 

general application does not create an irreconcilable conflict with [Section] 175.30 so that one or 

the other is unenforceable." (Opp'n 4, citing Bobb v.Att'y Gen. of US., 458 F.3d 213, 217-18 (3d 

Cir. 2006)). The FAA acknowledged that the two regulations "semantically overlap," but argued 

that such "overlap" was not "in conflict" and did not prohibit the FAA from charging the 

Respondent solely .under Section 175.3. (Opp'n. 3.) 

The FAA did not, however, discuss the Bobb decision in depth. It should be noted, 

[T]he government is required to proceed under a specific statute only if 

proceeding under a general statute would render the specific statute superfluous. 

A statute is rendered superfluous only if a general statute can cover every possible 

circumstance covered by the specific. Under those circumstances, the general 

statute must give way to the specific. 

Bobb, 458 F.3d at 224 (citation omitted). 

The question then becomes: whether the general acceptance requirement of Section 175.3 

and the inspection requirements of Section 175.30 are coextensive, so that a civil penalty may 

only be charged and assessed under the more specific Section 175.30. 

Given the broad general language of Section 175.3, it appears quite possible that it covers 

every possible circumstance identified by Section 175.30 (i.e., the more specific regulation). If 

so, then itwould appear that the FAA mustpr,oceed.l~nder the more specific hazmat inspection 

requirements listed in Section 175.30:~ ~l1b~e;)~f)ll\~·i~~·iewing the sufficiency of the FAA's 

pleading liberally, in a light most favorable to the Complainant, this Court must resolve "all 

reasonable doubts and inferences in the pleader's favor." Baicker-McKee et al., supra, at 483. 

Page 10of1Z 
Under this liberal standard of review, the FAA's pleading of 49 C.F.R. § 173.3 sufficiently 

pleads a general regulation that might plausibly be enforced against the Respondent. 

6. Requisite Element of Knowledge 

To prove that an air carrier has violated the HMR-including Section 175.3-requires 

the FAA to show that the air carrier knowingly violated the HMR. 49 U.S.C. § 5123(a)(1); 49 

C.F.R. § 171.2(f). An air carrier acts knowingly whe~ it (A) has actual knowledge of the facts 

giving rise to the violation; or (B) a re~sbn~tn{;·pet!Jo'n acting in the circumstances and exercising 

reasonable care would have that knowledge. ld. 

The FAA has acknowledged that it is "incumbent on Complainant to prove that 

Respondent knowingly accepted or transported a shipment ofHAZMAT" in this case. (ld. at 4.) 

It is important to note, therefore, that the FAA's burden of proving the requisite element of 

knowledge at the pleading stage is fairly minimal. 

A pleaded claim is facially "plausible" when it alleges sufficient factual content to 

permit the reasonable inference that the defendant is liable for unlawful conduct. 

Baicker-McKee, supra, at 485. 

Thus, a pleading party may meet its pleading burden by alleging "enough facts" to raise 

its claim(s) "beyond the level of speculation ... for each element required for recovery." Id. at 

484. In the instant case, the FAA has gen~tal'1, ple~~l.that the Respondent "knowingly violated" 

the HMR when it "accepted packages~::for tlfji~~~brtation that "did not conform to the general 

requirements" for hazmat transportation "as set forth in 49 C.F.R. § 173.24(i) and 173.27. 

Compl. 2 § II ~ 9. 

As noted earlier herein, pleadings must be reviewed with liberal construction, in favor of 

the pleading party. Charles Alan Wright and Arthur R. Miller, supra at§ 1356. So long as the 

alleged violation appears to have been "adequately stated in the complaint", the pleading is a 

sufficient. Id. As a result, the FAA's general pleading regarding Violation No. 1 should be 

deemed legally sufficient, and the Respondent's Motion to Dismiss should be denied. However, 

as noted earlier herein, a ruling denying a motion to dismiss a pleading is not a ruling on the 

merits of the allegation. Baicker-McKee et al., supra, at 496. 

Page 11 of12 
D. Conclusion 

Pursuant to 14 C.F.R. § 13.2Q5.kd •r4·C~iJ>!Ji. '§ 13.218(f)(2), and after reviewing all 

pleadings and documents, as well as all relevant caselaw, decisions, regulations, statutory 

authority, and being fully advised; 

IT IS HEREBY ORDERED: 

1. Judicial notice is taken that the FAA has always previously adjudicated hazmat violations 

against a carrier under both the general carrier acceptance requirement found in 175.3 and 

the specific carrier inspection requirements found in 175.30. 

2. Judicial notice is taken that the PHMSA has never published anything in its hazmat rules 

or regulations to notify the Respondent, or other carriers, that they risked an alleged 

violation under 49 C.F .R. § 173.3 as plead by the FAA in this particular case. 

3. The Respondent's Motion to ~i~mis~ for I~g~l insufficiency of the pleadings is denied. . . < -: 

j \ ::1· ·L§ (",:f:':·\~· 

4. On or before March 15, 2017the Respondent shall file an Answer to Violation No. 1. 

Attachment: Service List 

Page 12 oflZ 
Docket No. FAA-2015-3306 

(Civil Penalty Action) 

SERVICE LIST- BY U.S. MAIL 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W1000 10 

f\' . 

. 2~?~ ~' 

ONE COPY 

Mr. David F. Shayne 

Complainant's Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Ave., S.W. 

Renton, W A 98057 

TEL: 425-227-1847 

FAX: 425-227-1007 

Mr. Greg G. Stofko 

Respondent's Counsel 

Federal Express, Legal Department 

1700 Pennsylvania Avenue, N.W., Suite 950 

Washington, D.C. 20006 

TEL: 202-393-9285 

FAX: 202-628-0654 

Judge J .E. Sullivan 

US. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (E11-310) 

Washington, DC 20590 

TEL: 202-366-6941 

FAX: ~02-366-7536 

10 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430 . 

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