### UNITED STATES DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, D.C.
IN THE MATTER OF TGIFREIGHT FAA DOCKETNO. CP10NM0012 (Civil Penalty Action) DMS NO. FAA-2010-1079 

# RECEIVED NOV 

## 26 2013 

## HEARING DOCKET

ADMINISTRATOR'S OPPOSITION TO TGI FREIGHT'S APPLICATION FOR ATTORNEY'S FEES AND EXPENSES

Complainant Federal AviationAdministration ("Administrator"), through counsel, hereby opposes the Application or Petition for the Award ofAttorney's Fees and Expenses Underthe Equal Access to Justice Act of 1980 ("Application") filed by respondent TGI Freight. The application or petition should be denied.

TGI Freighthas applied for attorney's fees and expenses under the Equal Access to Justice Act ("EAJA"). 1 

### As TGI Freight accurately states2
, 

### parties who succeed in certain civil penaltyproceedings involving aviation such as Green Aviation Management Companl for

1 5 U.S.C. § 504; Motion for Fees and Costs at 1-2. FAA's Opposition to TGI Freight's Application for EAJA Fees In the Matter ofTGI Freight Docket No. CPIONM0012 Page 1 of4violations ofthe Federal Aviation Regulations4 before the Administrator mayrecover certain attorney's fees and expenses viaEAJA and its implementing regulations. 5

However, what TGI Freight apparently fails to appreciate is thatthis proceeding is not at all similarto Green and violations ofthe Federal AviationRegulations. This case solely involvedviolations ofthe Hazardous Materials Regulations contained in49 C.F.R. Subchapter 

### C.

As the Administrator found inDominion Concepts, "the EAJA does not apply to hazardous materials cases."6 Whenthe Agency brings a hazardous materials case against a shipper under 49 U.S.C. §§ 5101-5128 andbases the proposedpenalty on49 U.S.C. § 5123 alone, the hearing is not an adversary adjudication decided after a hearing onthe record subject to section 554 ofthe Administrative Procedures Act7 for whichEAJA costs andfees may be awarded. 8

2 Motion for Fees and Costs at 1-2. 3 Green Aviation Management Co
.. LLC. v. FAA, 676 F.3d200 (D.C. Cir. 2012). 4 Specifically, the FAA alleged that Green Air violated 14 C.P.R. §§ 119.5(1), 135.343, and 91.13. Id. at n.3. 5 14 C.P.R. Part 14. 6 In 

### re Dominion Concepts, FAA Order No. 2005-4,2005 WL 916050, at *3(Mar. 8, 2005) (emphasis added). 7 5

## u.s.c. § 554. 8 See id. at 3-4. FAA's Opposition to TGI Freight's Application for EAJA Fees In the Matter ofTGI Freight Docket No. CPIONM0012 Page2 of4

### For the foregoing reason, the ALJ should deny TGI Freight's application for EAJA relief.

Respectfully submitted this 

### 20th day ofNovember 

### 2013.

HOWARD L. MARTIN, JR. Regional Counsel

# ~rrl**~err·\Q._D** By:
_________ _ 

### Cheryl M. Jones Senior Attorney

FAA's Opposition to TGI Freight's Application for EAJA Fees Inthe Matter ofTG! Freight DocketNo. CPIONM0012 Page3of4

### CERTIFICATE OF SERVICE
Re: TGlFreight FAA DocketNo. CP10NM0012 DMS NO. FAA-2010-1079 I certifY that on this date I have served a copy ofthe FAA's Rebuttal Briefbyplacing it inthe United States Mail, postage-prepaid, certified mail, return receipt requested, addressed as follows: Original and 1 Copy FederalAviation Administration 800 Independence Avenue, SW Washington, DC 20591 ATTN: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1000 One Copy
The Honorable Richard C. Goodwin Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, D.C. 20590 Fax: 202-366-7536
Rebecca J. Hozubin, Esq. Wilkerson Hozubin 310 K Street, Suite 405 Anchorage, AK 99501 Fax: 907-276-5291

Office ofthe Regional Counse 222 West 7th Avenue #14 Anchorage, Alaska 99513-7587

FAA's Opposition to TGI Freight's Application for EAJA Fees In the Matter ofTGI Freight Docket No. CP10NMOOI2 Page 4 of4

# ~QOQ0/.5 Date I