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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

ORDERTAKING JUDICIAL NOTICE OF CERTAIN FACTS, AND DENYING THE**RF\~PQN:P,jENT:~·S** MOTION TO DISMISS
! :; 1i. ,{_ T:**1~** .. ' ' On September 9, 2015, the FAA filed a Complaint (dated August 31, 2015) with the Office ofHearings. 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 Motionto Dismiss 1 ("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 ofa 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 ofa briefand/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'sAugust 31,2015 Complaint chargedthe Respondent with one (1) violation of49 C.F.R. § 175.3 (accepting and transporting hazmat not properly prepared for shipment) ("Violation No,.1 ").and op.e (l) violation of49 C.F.R. § 172.303 (

..:·::.**r·:.'~Y~** ....**\·;:··~**...**~1-~** (accepting a properly marked

### hazmati~liipm~rit<t'liui'tldid not containhazmat) ("ViolationNo.2"). (Compl. 3, §III (l)(a)-(b).) The FAAproposed a total civil penalty of$18,000 for the two (2) violations. (Compl. 3, §**III~** 3). 2. Respondent's Answer and Motionto Dismiss On September 29, 2015, the Respondent filed a combined Answer and Motionto Dismiss. The Respondent admittedthat it had committed a violation of49 C.F.R. § 172.303(a) (ViolationNo. 2). 2 In its Answer, the Respondent then broadly denied "any liability" for ViolationNo. 1, and referred to its Motionto Dismiss. (Answer, 2**~** 7.) In its Motionto Dismiss, the Respondent asserted thatthe FAA's alleged violation of49 C.F.R. § 175.3 (ViolationNo. 1) (Compl. 3, §III., 1(a)), shouldbe 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 ViolationNo. 2, butraised a Motionto Dismiss in lieu ofa specific answer to ViolationNo. 1. 

### B. BriefOverview of14 C.F.R. § 13.218(t)(2) Pursuantto 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 ofdismissal 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 ofan answer. Page 2 of12•,.... \.... i**~-~dirt~ ~;**  .. i:."**~** For example (not inclusive), pursuantto 14 C.F.R. § 13.218(f)(2)(ii), a respondent may, 

### prior tofiling an answer, move to dismiss the complaint 

### on any specifiedgrounds. 4 This broad type ofpreliminary dismissal motion, filed prior to filing an answer, appears to include the preliminary challenge to the sufficiency ofa pleading identified in Federal Rule ofCivil Procedure 12(b)(6). In a Rule 12(b)(6) motion, a party may, priorto filing an answer, move to dismiss a complaint onthe grounds that the pleading fails "to state a claim upon which reliefcan 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 intheir 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 ifthey lack legal authority, orthe "factual tale is implausible." 

### !d. at483, 505; 

### See also, Charles Alan Wright and Arthur 

### R. Miller, 5B Fed. Prac. & Proc. Civ. 

### § 1356 (3d ed. 2016). Ifa pleading is legally insufficientto 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 sufficientto allow the costly process oflitigation to continue.) Baicker-McKee et al., 

### supra, at 484 (footnotes omitted). Dismissal ofthe action, prior to the filing ofan answer, is warranted ifthe 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, DeltaAirLines, Inc., FAA DocketNo. FAA-2014-0814, OrderDenyingthe Respondent's Motion to Dismiss for Insufficiency ofPleadings (April 19, 20 16).

5 In civil penalty cases, the FAA must provide sufficient "fair notice" ofthe allegation(s) and civil penalty requests in its pleading. Thus, the contents ofan FAA complaint must contain certain legal and fact information pursuantto 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 ofCivil Procedure 8(a), which requires, in part, "a short and Page 3 of 12I. Burden ofProofand Standard ofReview In a Rule 12(b)(6) motion, the movingparty (herein the Respondent) has the burden of proof. Baicker-McKee et al., supra,

### ·a:h48Q;_~~~qtJlq~~irectv, Inc. v. Treesh, 487F.3d471,476 t-**~** -··; ...·

### <·i. :.:.**;~** (6th Cir. 2007); Carver v. Bunch, 946 F.2d 451,454--55 (6th Cir. 1991). The standard for reviewing pleadings under eithertype ofmotion is one ofliberal construction in favor ofthe pleading party. Charles Alan Wright and Arthur R. Miller, supra at§ 1356. [T]he courtpresumes that all well-pleaded allegations are true, resolves all reasonable doubts and inferences inthe pleader's favor, and views the pleading in the light most favorable to the non-moving party. No claim will be dismissed merely because thetrialjudge disbelieves the allegations or feels that recovery is remote orunlikely. Baicker-McKee et al., supra, at 483. 2. Limited Extrinsic Materials May Be Considered Because a Rule 12(b)(6) motion tests the adequacy ofthe pleadings, the Court's inquiry is focused within the four comers ofthe complaint. Occasionally, however, certain limited extrinsic materials may be considered 1 

# ai**pA~~~·I~t~ding** review. Such limitedmaterials may ;;.· . . . ··:. . include matters on whichjudicial notice may be taken, matters ofpublic record, and/or matters that are consistent withthe pleadings.

### /d. at 493. 3. Factual and Legal Plausibility in Pleading Required Although the standard ofreview in a Rule 12(b)(6) motion is one ofliberal construction,
a pleading must still provide sufficient allegations to make the entitlementto relief"plausible." /d. at 488. Well-pleaded facts mustbe 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 notneedto accept as true legal conclusions orunwarranted 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 ofthe claim showing that the pleader is entitled to relief; and

... a demand for the reliefsought

...." Fed. R. Civ. P. S(a). Page 4of12In essence, the complaint must "affirmatively 

### suggest an actual 

### entitlement to reliefby supplying allegations that pushthe claim above the level ofmere speculation." Baicker-McKee et al., 

### supra, at 488. A pleading must show "more than a sheerpossibility 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 onwhat 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 Ifthe 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 pleaderthe 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 summaryjudgment. 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 ofthe complaint. 

### Id. In contrast, a motion for summaryjudgment typically involves a wide variety ofmatters outside the complaint, which may include (but is not limitedld)

### 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 ifRule 12(b)(6) Motion Granted Ifa Rule 12(b)(6) motion to dismiss is granted for failure ofthe pleaderto plausibly state a claim upon which reliefmay be granted, such dismissal is deemed to be a ruling onthe merits.6

6 The FAA's regulations mirrorthis 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 12However, ifsuch motion is denied, there is no converse ruling onthe merits. An order denying a Rule 12(b)(6) motion "does not conclusively resolve anything" nor does it forecast whetherthe
case could survive a summaryjudgmel').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 certainmatters will be highlighted inthis discussion. Inthis 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 orwhetherthe Respondent was seeking the equivalent ofa Rule 12(c) or Rule 56 motion. 7 However, after careful review ofthe Respondent's Answer and its Motion materials, it appears thatthe Respondent's Motionto Dismiss ViolationNo. 1, broughtpursuant to 14 C.F.R. 

### § 13.218(f)(2)(ii), is properly considered as equivalentto a Rule 12(b)(6) dismissal request.1. BriefOverviewofthe Parties' 

## A.t:gu'illepts! 1 The facts offered in support ofthe FAA's charge allege a failure bythe Respondent to inspect the hazmat package for specific markings that, according to the regulations, a shipper is .supposed to provide. 8 In regard to ViolationNo. 1, the Respondent agreed thatthe December 10, 2014 hazmat shipment had not beenmarked as required by49 C.F.R. 

### § 173.27. However, Respondent asserts that an air carrier's responsibilities for acceptance ofhazardous materials are expressly governed by49 C.F.R. 

### § 175.30 andhaving complied with its responsibilities under 175.30, Respondent cannot, as a matter of law andreasonable statutory interpretation, be held inviolation of49 C.F.R. § 175.3 for accepting andtransporting improperly prepared hazardous material. (Mot. Dismiss 3.)

7 A Rule 12(c) motion is very similarto a Rule 12(b)(6) motion, but it tests the adequacy ofthe 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 ofdismissal motions at any time, appears to encompass the equivalent ofa 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 of49 C.F.R. § 173.27(c)(3)(ii)because the shipper did not include onthe drum a marked testpressure of80 kPa orhigher. Page 6 oflZAmong otherthings, the Respondent asserted that an air carrier 's functions and responsibilities for hazmattransportation were "generally" contained in49 C.F.R. Part 175. 

### In contrast, a shipper's functions and requirements for hazmattransportation 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 thatthe FAAwas erring as a matter oflawby 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 ofthe general regulatory language in 49 C.F.R. 

### § 175.3 to "place[] additional acceptance requirements on air carriers," whichwere not specificallyrequired 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 thatthe Respondent had fully complied with all the specified carrierinspectionrequirements, 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 mustbe construed 'so that effect is given to all**t~s** provisions.;'"so that no partwill be inoperative or · , .**,c::~··**.....; ·.**n~** :h: superfluous, void or insignificant."'**((l)pp'ri'~.q!'}t,t6tiil'~** UnitedStates v. Gross, 73 M.J. 864, 870, fn. 6 (A. Ct. Crim. App.2014)). According to the FAA, the plain language ofsection 175.3 created a general violation category independent ofthe 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 ofproving any violation ofthe HMR is that the respondent knowingly committedthe violation, meaning the respondent eitherhad actual knowledge ofthe facts giving rise to the violation, or a reasonableperson acting inthe circwnstances and exercising reasonable
care would have that knowledge. 49 U.S.C. 

### § 5123(a). Page 7 oflZAs part ofits Motion, the Respondent asserted that it could not have factually known or reasonably known about the risk ofpotential violation herein (i.e., Violation No. 1), becausethe 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.ahDismiss, 7). The Respondent requested (in part) that the courttakejudicial notice 9 ofthe FAA'sprior adjudication history, which indicated that the FAA had always charged hazmat violations against a carrier under boththe 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 "notbeen" previously "addressed." (Opp'n 5.) In a Rule 12(b)(6) motion, takingjudicial notice regarding the scope and history ofthe FAA's civil penalty prosecutions is a matter of judicial discretion. Itis 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 takejudicial 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 ofthe FAA's pleading. In response, the FAA did not dispute the content ofthe PHMSA's public records. Thus, the content ofthe PHMSA records may accepted byjudicial notice, since they appear to be matters ofpublic record. See, Baicker-McKee et al., 

### supra, at 493.

9 Pursuant to Federal Rule ofEvidence**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 territorialjurisdiction" 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 12Based on the PHMSA's records, the Respondent argued that nothing specific has ever been published in the hazmatregulations 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 ofits inspection responsibilities, that a hazmat shipper had properly marked a package with a specific hydrostatic test mark before accepting the hazmatpackage. (Mot. Dismiss 7.) In response, the FAA argued (in part) that even ifprior 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 175.3. (Opp'n4.) 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 of49 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 notbe offered or acceptedfor transportation ortransported aboard an aircraft. 49 C.F.R. § 175.3 (emphasis added). Itwas 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 125. Overlapping v. Coextensive Regulations**~** .... !.\\.**;L,d.t~** ..**~t·r5~**.. The Respondent did not**disp~t~Jha(.~pe, ~l~~~')anguage**  ofsection 175.3 incorporated**~'** ..**,.~.** ·.'**'\-io;t-.~.,:t-,~**...**~)!.;,.-.;~11'** l' t'

. .. . both Part 173 and 175. However, the Respondent assertedthatregulatory 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 ofthe specific inspectionrequirements 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'n4, citing 

### Bobb v.Att'y Gen. ofUS., 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 notprohibit 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 renderthe specific statute superfluous. A statute is rendered superfluous only ifa general statute can cover everypossible 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 thenbecomes: whether the general acceptance requirement ofSection 175.3 and the inspectionrequirements ofSection 175.30 are coextensive, so that a civil penalty may only be charged and assessed underthe more specific Section 175.30. Given the broad general language ofSection 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 ofthe FAA's pleading liberally, in a light most favorable to the Complainant, this Court must resolve "all reasonable doubts and inferences inthe pleader's favor." Baicker-McKee et al., 

### supra, at 483.

Page 10of1Z

### Under this liberal standard ofreview, the FAA'spleading of49 C.F.R. 

### § 173.3 sufficiently pleads a general regulation that might plausibly be enforced against the Respondent. 6. Requisite Element ofKnowledge To prove that an air carrierhas violated the HMR-including Section 175.3-requires the FAA to showthat 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 ofthe 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 thatknowledge. 

### ld. The FAA has acknowledged that it is "incumbent on Complainantto prove that Respondent knowingly accepted ortransported a shipment ofHAZMAT" inthis case. 

### (ld. at 4.) It

### is important to note, therefore, that the FAA's burden ofproving 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 permitthe 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 ofspeculation

... for each element required for recovery." Id. 

### at 484. In the instant case, the FAA has**gen~tal'1, ple~~l.that**  

### the Respondent "knowinglyviolated" the HMRwhen it "accepted

## packages~::for**tlfji~~~brtation** that "didnot conform to the general requirements" for hazmat transportation "as set forth in49 C.F.R. 

### § 173.24(i) and 173.27. Compl. 2 

### § II**~** 

### 9. As noted earlier herein, pleadings mustbe 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 pleadingregarding ViolationNo. 1 should be deemed legally sufficient, andthe Respondent's Motion to Dismiss shouldbe denied. However, as noted earlierherein, a ruling denying a motion to dismiss a pleading is not a ruling onthe merits ofthe allegation. Baicker-McKee et al., supra, 

### at 496.
Page 11 of12

### D. Conclusion Pursuantto 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 carrierunder boththe 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 hazmatrules
orregulations 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 ofthe pleadings is denied.

. .

< -: j \ ::1· ·L§**(",:f:':·\~·** 4. On orbefore March 15, 2017theRespondent shall file an Answer to ViolationNo. 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 ofHearings, M-20 U.S. Department ofTransportation 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 orby 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

.

.:,_, ' .,·• ·:"1