# RECEIVED U.S. DEPARTMENT OF TRANSPORTATION

FEDERAL AVIATION ADMINISTRATION OFFICE OF HEARINGS WASHINGTON, DC 

## MAY 03 20!6 

## HEARING DOCKET

In the Matter of: Federal Express Corporation Respondent
Judge Douglas M. Rawald FAA DOCKET No. Not Assigned FAA Case No.2014SW700042 (Civil Penalty Action) DMS No. FDMS No. 2014-0864

JOINT RESPONSE TO ORDER ON LITIGATION AND SCHEDULING ISSUES NOW COMES the Federal Aviation Administration (hereinafter "FAA") through counsel and Federal Express Corporation through its counsel and jointly files this response to the Administrative Law Judge's Order Directing the Parties to Meet and Confer Regarding Litigation and Scheduling Issues. In response to this Order the parties state the following: 1. James Archier, the attorney for the Federal Aviation Administration and Allan Horowitz, the attorney for Federal Express Corporation conducted an initial meeting to discuss this case via telephone on Thursday, April 14, 2016. On this date the parties agreed to follow-up with an additional meeting to comply with this Order. The follow-up meeting occurred on Tuesday, April 26, 2016 at 9:00 a.m. Central Daylight Savings Time. 2. The parties hereby submit the following joint report:
a. Any request to change the previously established venue. Pursuant to the Honorable Richard C. Goodwin's Procedural Order, dated February 11, 2015, Venue is Austin, Texas, (Exhibit A, attached). The parties have no objection to venue. b. a proposed schedule for the completion of discovery (or an indication that discovery is complete).

### In Judge Goodwin's Order served on June 15, 2016, Judge Goodwin ordered the closure of discovery on November 6, 2015, (Exhibit B. attached).
c. a list of any pending motions that have been previously filed but have yet to be ruled upon. Neither the FAA nor Federal Express Corporation have any pending motions that have previously been filed but have yet to be ruled upon. d. a proposed date for a telephonic prehearing conference with the undersigned judge. The parties propose Wednesday, June 15, 2016 at 9:00 a.m. Central Standard Daylight Time for a telephonic prehearing conference.
e. a proposed due date for the filing of any prehearing motions (including a proposed date for a telephonic hearing on any filed motions, if so desired), Prehearing motions would be due by July 30, 2016. f. proposed hearing dates. The proposed hearing dates for Complainant's counsel and witnesses and Respondent's counsel and witnesses are: (1) August 30 through September 2, 2016; (2) December 6 through December 9, 2016; (3) December 13 through December 16, 2016.

2**8~"-<:f":'~,-Lynch** A,ss"&ta£t"'Chicef Counsel for Enforcement 

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ennsyl ania Avenue, N.W. Washington DC 20006 

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### Patricia A. McNall Acting Assistant Chief Counsel for Enforcement



# -----c?-=--~~~k~C~~-} ___ Senior Attorney ement Division, Southwest Team eral Aviation Administration 0101 Hillwood Parkway Fort Worth, Texas 76177 E-mail: james.archier@faa.gov Telephone: (817) 222-5099 (Main) (817) 222-5074 (Direct) (817) 222-5945 (Fax)

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### CERTIFICATE OF SERVICE Re: Federal Express Corporation, FAA Case No. 2014SW700042 I hereby certify that on this day, I have sent via Federal Express an executed original and one copy of the JOINT RESPONSE TO ORDER ON LITIGATION AND SCHEDULING ISSUES, addressed as follows: Hearing Docket Attention Hearing Docket Clerk Federal Aviation Administration 600 Independence Avenue, SW Washington DC 20591 Wilbur Wright Building-Suite 2W1000 Washington, DC 20591 I further certify that on this date, I have sent via Federal Express a true copy of the Notice of Change of Mailing Address, addressed as follows to:

TEL: FAX: (202) 393-9285 (202) 628-0654 Mr. Greg G. Stofko Senior Attorney Regulatory Affairs Federal Express Corporation 1700 Pennsylvania Avenue, N.W. Suite 950 Washington, DC 20006

EMAIL: greg.stofko@fedex.com

TEL: (202) 496-7356 Allan H. Horowitz McKenna Long & Alridge LLP 1900 K Street, NW Washington DC 20006

EMAIL: ahorowitz@mckennalong.com



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### The Honorable Douglas M. Rawald Administrative Law Judge Office of Hearings, M-20 U.S. Department of Transportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590

TEL: ( 202) 366-5121 Staff Assistant FAX: (202) 366-7536

Patricia A. McNall Acting Assistant Chief Counsel for Enforcement

ames Archier, Senior Attorney Enforcement Division, Southwest Federal Aviation Administration 10101 Hillwood Parkway Fort Worth, Texas 76177 E-mail: james.archier@faa.gov Telephone: (817) 222-5099 (Main) (817) 222-5074 (Direct) (817) 222-5945 (Fax)



### 5 Dated: May 2, 2016

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### GOVERNMENT

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### EXHIBIT 

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### SERVED: February 11,2015
U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC
IN THEMATTER OF FEDERAL EXPRESS CORPORTION FAADOCKETNO. [TO BEASSIGNED) (Civil Penalty Action) FDMS NO. FAA 2014-0864

PROCEDURAL ORDER In order to expedite the hearing inthis matter, the parties shall comply with the Procedural Schedule set forth hereinbelow1

. The Rules ofPractice for this proceeding are set forth in 14 C.P.R. Part 13, Subpart G, ofthe Federal Aviation Regulations2

. Those rules provide, inter alia, thatthe Respondent must file a written Answer or motion within thirty (30) days after service ofthe Complaint (14 C.P.R.§ \3.209(a)), that a general denial is deemed a failure to file an Answer(§ 13.209(e)), that failure to file an Answerwithout good cause is deemed an admission ofeach allegation in the Complaint (§13.209(£)), andthat, absent agreement ofthe parties, aparty seeking an extension of time mustfile a writtenmotionnotJess than seven (7) days before the document is due, absent good cause shown(§ 13.213(a) and (b)). More specifically, 14 CPR§ 13.209 (e) states: A person filing an answer shall admit, deny, or state thatthe person iswithout sufficientknowledge orinformationto admit or deny, eachnumberedparagraph ofthe complaint. Any statementor allegation containedinthe complaint thatis not specifically denied inthe answer may be deemed an admission ofthetruth of

1 Materials tiled in the FAA Hearing Docket (except for materials which are sealed) also available for viewing at http://www.regulations.gov. For additional information see: htto:lldms.dot.gov. 2 The Administrator's civil penalty decisions, along with indexes ofthe decisions, the Rules ofPractice, as well as other materials relating to civil penalty cases, are available on the internet at: http://www.faa.gov/ about/office
.. org/headquarters _offices/ age/pol_ adjudication/ agc4001civit _penalty/, see also: **http://ecfr.gpoaccess.gavlcgi/tltext/text-idx?c~ecfr&tpl~lecfrbrowse/Title**I41I4tab
_02, tpl. In addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS library) and WestLaw 9FTRAN-FAA database. For additional information, see the Web site.

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( that allegation. A general denial ofthe complaint is deemed a failure to file an answer. Under FAA Order2150.3B and the Rules governingthese proceedings, the Agency attorney andthe Respondent are encouragedto consider the possibility of settlement and compromise ofthis matter. 3 Compromise maybe effectedwith or without a finding ofviolation (14 C.F.R. §13.16 (n) (1)). NOTE: This presiding Judge does notrequire "Discovery" be served on the Judge. OtherJudges have differentpolicies, but as long as this case is assignedto the undersignedpresiding Judge the parties may, but are notrequiredto, serve discovery on the undersigned. Thejudgewill not discuss the case with any party, orrepresentative on an ex parte basis. Administrative matters may be addressed to StaffAssistant, Pat Matthews [202-366-5121] (Patricia.Matthews@dot.gov). WHEREFORE, the parties be and are hereby ORDERED to adhere to the following procedural schedule: 

### 1. Venue shall be Austin, TX.; 2. On orbefore June 1, 2015, the parties shall conclude all discoveryincluding, but not limitedto, depositions, document production, responses to production requests and/or interrogatories. Iftheparties cannot resolve a discovery dispute they shall submitthe dispute to the undersigned for resolution in atimely manner; '. 3. The parties shall be preparedto presentthis case at a hearing onor after June 1, 20154
, subjectto the availability ofcourtroom facilities. The specific date and time for thehearing will be.forthcomingin a separate Order. 4. The parties will have the opportunity to file Post-Hearingbriefs and arguments pursuantto a scheduleto be determined at the hearing. For guidance, the following schedule is typically used: Complainant shall file its brieffifteen (15) days after receipt ofthe transcript; Respondent shall its brieffifteen (15) days thereafter; and any rebuttal briefby the Complainant shall be filed seven (7) days thereafter.

3 "The public policy offavoring and encouraging settlement makes necessary the inadmissibility of settlementnegotiations in order to foster frank discussions". Fiberglass Insulators. Inc. v Dupuy, 856 F. 2d 652, 653 (4 Cir. 1988); Wright & Graham, Federal Practice andProcedure: Evidence, §5302 (1980). Rule 408 ofthe Federal Rules ofEvidence excludes from evidence all statements made in the course of settlement negotiations. 4 14 C.F.R. § 13.221 states: "The administrative lawjudge shall give each party at least 60 days notice of the date, time and location ofthe hearing." lftheparties can agree on tentative hearing dates, they are encouraged to provide those dates to the court and/or Ms.'Matthews in order to get the dates reserved on thejudge's calendar. 

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( 5. Settled cases will notbe removed from the hearing docket until the proper written pleading(s), consistentwiththe applicable rules, 5is receivedbythe presiding judge6 6. Theparties are advised that submissions sentto the street address ofthe U.S. DepartmentofTransportation, Office ofHearings, may be delayed due to screening conductedbytheU.S. Postal Service and/or other security agencies and may takeup to four ( 4) weeks to be delivered. Additionally, submissions may be "irradiated", which affects the quality ofsubmissions. The parties are encouraged, but not required, to file submissions by private delivery service, facsimile, or email. The certificate ofservice shall reflectthe manner ofservice. The parties are encouragedto provide email addresses to expedite service of pleadings. 7. All documents areto be submittedto the undersigned as follows: HON. Richard C. Goodwin U.S. Administrative Law Judge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, D.C. 20590 Attn: Patricia Matthews (Richard.Goodwin@dot.gov) Administrativematters shouldbe directed to PatriciaMatthews, StaffAssistant (202) 366-5121 (Jatricia.Matthews@dot.gov). All othermatters shouldbe addressed inwriting/email to Judge Goodwin.

Richard C. Goodwin U.S. AdministrativeLawJudge Attachment- Service List
5 14 C.F.R. § 13.215 states: "Atany time before or during a hearing, an agency attorney may withdraw a complaint or party may withdraw arequest for ahearing withoutthe consent ofthe administrative law judge, I fan agency attorney withdraws the complaint or aparty withdraws the request for ahearing and the answer, the administrative lawjudge shall dismiss the proceedings under this subpart with prejudice." 6 See: In the Matter ofLewis Drake & Associates, FAA DocketNo. CP03S00045, DMS. No. F AA-2003- 16379, "OrderTerminating Proceeding", served February 26, 2005; citing Keny James Eldridge, FAA Docket CP89GL0458, "Order CancelingHearing and Terminating Proceeding", served January 16, 1991, at I. 

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( SERVICE LIST -BYU.S. MAIL ORIGINAL & ONE COPY Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding-Suite2Wl000 1

Greg Stofko, Respondent's Counsel 1700 PennsylvaniaAve., N.W. Suite 950 Washington, D.C. 20006 TEL: 202-393-9285 FAX: 202-628-0654 EMAIL: greg.stofko@fedex.com : James Archier, Complainant's Counsel Federal Aviation Administration Office oftbe Regional Counsel 2601 Meacham Boulevard Fort Worth, TX76137 TEL: 817-222-5074 FAX: 817-222-5945/5092 ONE COPY

The Honorable Richard C. Goodwin,Administrative LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-5121 StaffAssistant FAX: 202-366-7536 DocketNo. FAA-2014-0864 (Civil Penalty Action)

1 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-Suite2W1000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430. 

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### GOVERNMENT & 

### EXHIBIT 

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### SERVED: June 15, 2015 U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS

WASHINGTON, DC IN THE MATTER OF FEDERAL EXPRESS CORPORATION

FAA DOCKET NO. FAA 2014-0864 (Civil Penalty Action)

ORDER ON COMPLAINANT'S MOTION FORDECISION 

### The Federal Aviation Administration (hereinafter "FAA") filed a Motion for Decision dated April9, 2015. Federal Express Corporation (hereinafter "FedEx") filed an Answerto the FAA'sMotion for Decision dated April23, 2015. Upon reviewofthe Motion and Answer thereto, we find the matter should proceed to hearing. We do not anticipate reaching this matter prior to November I, 2015 and will extend discovery deadlines accordingly. WHEREFORE, the within filed Motion for Decision and Answer thereto having been read and considered, it be and is hereby ORDERED as follows: I. The FAA'sMotion for decision be and is hereby DENIED; and 2. On orbeforeNovember 6, 2015, the parties shall conclude all discovery including, but not limited to, depositions, document production, responses to production requests and/or interrogatories. Ifthe parties cannotresolve a discovery dispute they shall submitthe dispute to the undersigned for resolution in atimely manner; and 3. The parties shall be prepared to present this case at ahearing on or after November 6, 2015, subject to the availability ofcourtroom facilities. The specific date andtime for the hearing will be forthcoming in a separate Order.

Richard C. Goodwin U.S. Administrative Law Judge Attachment- Service List