I

**~** . SERVED: FEBRUARY 10, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC
IN THE MATTER 

### 0 F FEDERAL EXPRESS CORPORATION DOCKETNO. FAA-2014-1118 (Civil Penalty Action)
ORDER OF CHIEF ADMINISTRATIVE LAWJUDGE ESTABLISHING PROCEDURES This proceeding arises from a complaint served January 22, 2015, alleging violations of the Department ofTransportation Hazardous Materials Regulations ("HMR"), and Respondent's request for hearing dated January 16, 2015. The undersigned administrative lawjudgewas assigned to this proceeding by Notice served February 10,2015. The Rules ofPractice for this proceeding are set forth in Part 13, Subpart G, of.the Federal Aviation Regulations (14 C.P.R.§§ 13.201-13.235 (2014)). Those rules provide, inter· 

### alia, thatRespondentmust file awritten answer or motion within 30 days after service ofthe complaint(§ 13.209(a)); that a general denial is deemed a failure to file an answer(§ 13.209(e)); that failure to file an answer without good cause is deemed an admission ofeach allegation in the complaint(§ 13.209(f)); and that aparty seeking an extension oftime must file a written motion
at least seven days before the document is due, absent agreement ofthe parties or good cause shown(§ 13.213(a), (b)). To expedite the hearing in this matter, Complainant and Respondent, on orbeforeMarch 

### 10,2015, shall file (1) any amendment ofthe complaint or answer; 1

### (2) an agreed

or separate proposed procedural schedules, including proposed dates (i.e., specific dates, not merely numbers or days before the hearing) for (a) filing stipulations, a list ofwitnesses, a summary oftheir proposed testimony, and for (b) exchanging exhibits and discovery, ifany; (3) a statement concerningthe status ofsettlement efforts; and (4) a proposed hearing site and, absent agreement oftheparties, ajustification ofthe proposed site. See 

### 14 C.F.R. § 

### 13.217. Under FAA Order 

### 2150.3B2 and the Rules governing these proceedings, Complainant and Respondent should continueto considerthe possibility ofsettlement and compromise ofthis matter. 3 In connectionwith such discussions, the parties should note that FAA Order 

### 2150.3B, which establishes standards for the Complainant's conduct and settlement ofthis proceeding, is available on the Intemet.4 See, in particular, chapter 6 (Legal Enforcement Actions and Legal Counsel Responsibilities); and either (a) Appendix 

## B(Table ofSanctions for All Enforcement Programs, Except Hazardous Materials), pages 

### B-1-B9 (Part One- Abbreviations and Definitions) and those portions ofPart Two- Sanction Guidance Tables, which apply to

1 Further amendments are not anticipated absent good cause shown. Though 14 C.P.R.§ 13.214(b)(l)pennits amendments at any time more than 15 days before ahearing, utilization ofthatprovision would prevent orderly preparation for a hearing and could prevent any hearing at all, because notice ofahearing must be given 60 days in advance. § 13.221(a). An amendmentthat mightbe filed 15 days priorto the hearing would entitle the other party up to 20 days in which to reply(§ 13.214(c)), and could generate a new round ofschedules(§ 13.217), motions(§ 13.218); and discovery (§ 13.220), necessitating apostponementofthe hearing, anew 60-day notice, etceteraadinfinitum. 2 FAA Compliance andEnforcementProgram (Oct. 1, 2007, with Change 8, dated Jan. 20, 2015), available at http://www.faa.gov/documentLibrary/media/Order/2150.3B_ W-Chg_8.pdf(last visited Jan. 10, 2015). 3 See LindaJoyce Goodman, FAA DocketNo. CP89WP0061, FDMS No. FAA-2004-18292, at 11 (May 30, 1989), available atwww.regulations.gov (concludingthat "theprosecuting agency attorney must consider settlement and thatthe Rules do notpermitthe ChiefCounsel to exercise policy control or decision making in this case or in civil penalty cases generally so as to deny prosecutorial discretion with respect to settlement and compromise to the agency attorney as defined in the rules"). See also Exec. Order No. 12,988, 61 Fed. Reg. 4729 (Feb. 5, 1996), which refers to facilitating thejust and efficient resolution ofcivil claims involving the United States Government and directs Federal agencies and their litigation- counsel to, "as soon as practicable after ascertaining the nature ofa dispute in litigation, and throughout the litigation,
... evaluate settlement possibilities and make reasonable efforts to settle the litigation." See also FAA Order 2150.3B, supra note 2, at paragraph 6-2. 4 See supra note 2. Alternatively, go to www.faa.gov; select, under "Regulations and Guidelines," "Orders & Notices"; enter "2150.3B" in search window under "Orders & Notices"; click "Search"; click "FAA Compliance and Enforcement Program (with Change 8)"; and, under "Content," select the first entry, which should be "FAA Order 2150.38 -with change 8." 

### -2-particular allegations not involving hazardous materials; or (b) Appendix C (Hazardous Materials Enforcement). Upon request ofRespondent, Complainant shall provide Respondent a copy ofthe applicable referenced provisions. Submissions sent to the street address ofthe U.S. Department ofTransportation, Office of Hearings, byregular mail may be delayed up to four weeks due to postal screening, and may be "irradiated," which may result inpages being fused together. Accordingly, parties who serve submissions onthe Judge by regular mail should also fax, express carrier, orpersonally deliver those submissions. A certificate ofservice, reflecting the above caption (including the docket number), the title ofthe submission, and the date and manner ofservice, shall be attachedto each individual submission. Compromise may be effected with or without a finding ofviolation(§ 13.16(n)). Each party's filing shall include a telephone number where the party can be reached by the Judge for prehearingtelephone conferences.
SO ORDERED.



### -3-

### SERVICE LIST ORIGINAL & 

### ONE COPY Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W10005
Greg G. Stofko, Respondent's Counsel Legal Department FedExExpress 1700 PennsylvaniaAvenue, N.W. Suite 950 Washington, DC 20006 TEL: 202-393-9285 EMAIL: gregstofko@fedex.corn Charles Raley, Complainant's Counsel Enforcement Division, AGC-300 Office ofthe ChiefCounsel Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 TEL: 202-267-3357 FAX: 202-267-5106 

### ONE COPY

The Honorable Ronnie A. Yoder, Chief Administrative LawJudge U.S. Department ofTransportation Office ofHearings, M-20 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-2142 FAX: 202-366-7536 Docket No. FAA-2014-1118 (Civil Penalty Action)

5 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-Suite2Wl000, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430.