RECEIVED 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

MAY 0 3 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 

\ ;, . f&e !"; R y: ~-~, ,' w~ /1./ &1 /I1AA--'--c::, /c'-tc--__ 

,,... .. -----~" Ja}D-eS Archier, Senior Attorney 

~ t;ri£orcement Division, Southwest Team 

/'f-,edP.ra l Aviation Administration 

(

j' ~ 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) 

By:, --·- ---------···--- SL fko, ' unsel for Federal 

ennsyl ania Avenue, N.W. 

Washington DC 20006 

t;/:Je /;;;_C'/6 

Horowitz 

Dentons US T.LP 

Federal Express Date 

1900 K Street, NW 

Washington DC 20006 

DC 51308413.1 

96"36720-{l\V-1 

3 

(1~/26{16 
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) 

3 

Datj/ 
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 

4 
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: ( 2 02) 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 ~ EXHIBIT I A 

SERVED: February 11,2015 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

IN THE MATTER OF 

FEDERAL EXPRESS CORPORTION 

FAA DOCKET NO. [TO BE ASSIGNED) 

(Civil Penalty Action) 

FDMS NO. FAA 2014-0864 

PROCEDURAL ORDER 

In order to expedite the hearing in this matter, the parties shall comply with the 

Procedural Schedule set forth hereinbelow1

. The Rules of Practice for this proceeding 

are set forth in 14 C.P.R. Part 13, Subpart G, of the Federal Aviation Regulations2

. 

Those rules provide, inter alia, that the Respondent must file a written Answer or motion 

within thirty (30) days after service of the 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 

Answer without good cause is deemed an admission of each allegation in the Complaint 

(§13.209(£)), and that, absent agreement of the parties, a party seeking an extension of 

time must file a written motion not Jess 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 that the person is without 

sufficient knowledge or information to admit or deny, each numbered paragraph 

of the complaint. Any statement or allegation contained in the complaint that is 

not specifically denied in the answer may be deemed an admission of the truth 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 of the decisions, the Rules of Practice, 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/ agc4001 civ it _penalty/, see 

also: http://ecfr.gpoaccess.gavlcgi/tltext/text-idx?c~ecfr&tpl~lecfrbrowse/Title I 41 I 4tab _ 02, tpl. In 

addition, Thomson Reuters/West Publishing publishes Federal Aviation Decisions. Finally, the decisions 

are available through LEX IS (TRANS library) and WestLaw 9FTRAN-F AA database. For additional 

information, see the Web site. 
( 

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that allegation. A general denial of the complaint is deemed a failure to file an 

answer. 

Under FAA Order 2150.3B and the Rules governing these proceedings, the 

Agency attorney and the Respondent are encouraged to consider the possibility of 

settlement and compromise of this matter. 3 Compromise may be effected with or 

without a finding of violation (14 C.F.R. §13.16 (n) (1)). 

NOTE: This presiding Judge does not require "Discovery" be served on the 

Judge. Other Judges have different policies, but as long as this case is assigned to the 

undersigned presiding Judge the parties may, but are not required to, serve discovery on 

the undersigned. 

The judge will not discuss the case with any party, or representative on an ex 

parte basis. Administrative matters may be addressed to Staff Assistant, 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 or before June 1, 2015, the parties shall conclude all discovery including, but 

not limited to, depositions, document production, responses to production 

requests and/or interrogatories. If the parties cannot resolve a discovery dispute 

they shall submit the dispute to the undersigned for resolution in a timely manner; 

'. 

3. The parties shall be prepared to present this case at a hearing on or after June 1, 

20154

, subject to the availability of courtroom facilities. The specific date and 

time for the hearing will be .forthcoming in a separate Order. 

4. The parties will have the opportunity to file Post-Hearing briefs and arguments 

pursuant to a schedule to be determined at the hearing. For guidance, the 

following schedule is typically used: Complainant shall file its brief fifteen (15) 

days after receipt of the transcript; Respondent shall its brief fifteen (15) days 

thereafter; and any rebuttal brief by the Complainant shall be filed seven (7) days 

thereafter. 

3 "The public policy of favoring and encouraging settlement makes necessary the inadmissibility of 

settlement negotiations in order to foster frank discussions". Fiberglass Insulators. Inc. v Dupuy, 856 F. 2d 

652, 653 (4 Cir. 1988); Wright & Graham, Federal Practice and Procedure: Evidence, §5302 (1980). Rule 

408 of the Federal Rules of Evidence excludes from evidence all statements made in the course of 

settlement negotiations. 4 14 C.F.R. § 13.221 states: "The administrative law judge shall give each party at least 60 days notice of 

the date, time and location of the hearing." lfthe parties 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 

the judge's calendar. 

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5. Settled cases will not be removed from the hearing docket until the proper written 

pleading(s), consistent with the applicable rules, 5 is received by the presiding 

judge6 

6. The parties are advised that submissions sent to the street address of the U.S. 

Department of Transportation, Office of Hearings, may be delayed due to 

screening conducted by the U.S. Postal Service and/or other security agencies and 

may take up to four ( 4) weeks to be delivered. Additionally, submissions may be 

"irradiated", which affects the quality of submissions. The parties are 

encouraged, but not required, to file submissions by private delivery service, 

facsimile, or email. The certificate of service shall reflect the manner of service. 

The parties are encouraged to provide email addresses to expedite service of 

pleadings. 

7. All documents are to be submitted to the undersigned as follows: 

HON. Richard C. Goodwin 

U.S. Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

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

Washington, D.C. 20590 

Attn: Patricia Matthews 

(Richard.Goodwin@dot.gov) 

Administrative matters should be directed to Patricia Matthews, Staff Assistant 

(202) 366-5121 (Jatricia.Matthews@dot.gov). 

All other matters should be addressed in writing/email to Judge Goodwin. 

Richard C. Goodwin 

U.S. Administrative Law Judge 

Attachment- Service List 

5 14 C.F.R. § 13.215 states: "At any time before or during a hearing, an agency attorney may withdraw a 

complaint or party may withdraw a request for a hearing without the consent of the administrative law 

judge, I fan agency attorney withdraws the complaint or a party withdraws the request for a hearing and the 

answer, the administrative law judge shall dismiss the proceedings under this subpart with prejudice." 

6 See: In the Matter of Lewis Drake & Associates, FAA Docket No. CP03S00045, DMS. No. F AA-2003-

16379, "Order Terminating Proceeding", served February 26, 2005; citing Keny James Eldridge, FAA 

Docket CP89GL0458, "Order Canceling Hearing and Terminating Proceeding", served January 16, 1991, 

at I. 

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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 2Wl 000 1 

Greg Stofko, Respondent's Counsel 

1700 Pennsylvania Ave., 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 of tbe Regional Counsel 

2601 Meacham Boulevard 

Fort Worth, TX 76137 

TEL: 817-222-5074 

FAX: 817-222-5945/5092 

ONE COPY 

The Honorable Richard C. Goodwin, 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: 202-366-5121 Staff Assistant 

FAX: 202-366-7536 

Docket No. 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-Suite 2W1000, Washington, 

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

4 
~ GOVERNMENT 

& EXHIBIT 

f B 

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 FOR DECISION 

The Federal Aviation Administration (hereinafter "FAA") filed a Motion for Decision 

dated April9, 2015. Federal Express Corporation (hereinafter "FedEx") filed an Answer to the 

FAA's Motion for Decision dated April23, 2015. Upon review of the 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's Motion for decision be and is hereby DENIED; and 

2. On or before November 6, 2015, the parties shall conclude all discovery including, but 

not limited to, depositions, document production, responses to production requests and/or 

interrogatories. If the parties cannot resolve a discovery dispute they shall submit the 

dispute to the undersigned for resolution in a timely manner; and 

3. The parties shall be prepared to present this case at a hearing on or after November 6, 

2015, subject to the availability of courtroom facilities. The specific date and time for 

the hearing will be forthcoming in a separate Order. 

Richard C. Goodwin 

U.S. Administrative Law Judge 

Attachment- Service List