UNITED STATES DEPARTMENT OF TRANSPORTATIQNoj ^;: T •' C^ORTAT'OM 

OFFICE OF HEARINGS " ' '" .' ^ ;^-^'^''^ "^'^ 

WASHINGTON, D.C. 

IN THE MATTER OF ^ ^ — ^-^ ^ ^^ ^f c 0 

FEDERAL EXPRESS CORPORATION M l 2 2 2010 

FAA DOCKET NO. CP09AL0005 • ' -r AR' MG DOCKE T 

(Civil Penalty Action) 

DMS NO. FAA-2009-0099 

AGENCY'S RESPONSE TO WITNESS JAY ROMANO'S MOTION TO QUASH 

SUBPOENA 

On June 9, 2010, a witness. Jay Romano, through counsel, moved for an Order quashing a 

subpoena that was served on June 7, 2010.' This subpoena compels his attendance in 

Anchorage, Alaska, for the hearing in this matter currently scheduled for June 21, 2010. 

Romano makes essentially two contentions. First is that the subpoena was not properly served, 

and the second is that it would not be convenient for him to attend the proceedings. 

The case at hand involves a shipment that was offered to Respondent by Redox Tech, LLC. 

Romano was the employee of Redox Tech that physically offered this shipment. The Agency 

effected service of the subpoena when it hired a process server who went to Romano's place of 

employment and left the subpoena with another employee of the company. Exhibit A. The 

present motion to quash establishes that Romano actually received the subpoena. 

Section 13.228(b) of the Rules of Practice authorizes a party or person on whom a subpoena 

has been served to file a motion to quash. Thus, by filing a motion to quash, Romano 

acknowledges service. Further, while § 13.228(b) does indicate that a motion to quash is not 

' This Amended Motion to Quash was served by mail. Agency counsel received his copy in the afternoon of June 

14,2010. 
limited to the matters stated, it does not specifically address or provide for a limited or special 

appearance to contest service, and nothing in Romano's motion indicates his appearance is for 

such a limited purpose. Further, any notion that effective service can only be had by handing the 

subpoena to the person is dispelled by 49 U.S.C. § 46103, which specifically authorizes the 

service of process by mail. Lastly, while not directly on point, the concept of constructive 

service is now well recognized in administrative proceedings, even when it affects the rights of 

parties. See, e.g.. Administrator v. Tu, NTSB Order No. EA-5117 (October 13, 2004). 

Regarding the claimed inconvenience based on distance, counsel for Romano was directed to 

49 U.S.C. § 46104(a)(1) when the need for Romano's appearance for the hearing was discussed 

in April 2010. Exhibit B. This provision specifically provides-that subpoenas may command a 

person to travel from anywhere in the United States to the location of the hearing. 

Regarding the claimed inconvenience based on the date of the hearing, it is unfortunate that 

the hearing date could affect his personal plans for Father's Day, but June 21, 2010, is the date 

0 • • • • 

set for the hearing. Had Romano and counsel been constructive m workmg with the Agency 

when the Agency counsel attempted to speak with Romano in late March 2010, an altemative to 

his personal appearance or, perhaps a change to the date of the hearing, could have been 

arranged. That there may be some inconvenience, however, does not establish that the subpoena 

is unreasonable or oppressive. 

The matters to which Romano will testify do not appear to be contested by Respondent.^ 

Thus, as an altemative to his personal attendance, the Agency is willing to present his testimony 

by telephone if the administrative law judge permits it. The Agency's only caveat in this regard 

^ Respondent's counsel has submitted a request to continue the hearing date to afford time for the parties to complete 

settlement negotiations. 

^ Agency counsel did broach with Respondent's counsel the possibility of a stipulation. That discussion has 

essentially been tabled while the parties negotiate a settlement. 
is that we anticipate that Romano will need to view color photographs and color copies of 

documents. Thus, if the subpoena is modified to provide for telephonic testimony, it should also 

require that Romano provide the parties either an email address or physical address so that 

marked documents could be provided to him in advance of his testimony. 

RESPECTFULL SUBMITTED this 15'" day of June 2010. 

HOWARD L. MARTIN, JR 

Regional Coimsel 

By: 

Glenn H. Brown 

Senior Attorney 

CERTIFICATE OF SERVICE 

Re: Federal Express Corporation 

FAA Docket No. CP09AL0005 

I hereby certify that on this date I served a copy of the AGENCY'S RESPONSE TO 

WITNESS JAY ROMANO'S MOTION TO QUASH SUBPOENA by placing it in the 

United States Mail, postage-prepaid, certified mail, return receipt requested, and by electronic 

mail and facsimile transmission, addressed as follows: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20; 

U.S. Department of transportation 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-320 

Washington, DC 20590 

FAX: (202)366-7536 

Amiel J. Rossabi 

Forman Rossabi Black, P.A. 

P.O. Box 41027 

Greensboro, NC 27404-1027 

FAX: (336)378-1850 
Courtney E. Felts, Staff Attorney II 

Federal Express Corporation 

Regulatory Affairs, Legal Department 

3620 Hacks Cross Road 

Building B, 3"* Floor 

Memphis, TN 38125 

FAX: 901-434-8283 

Mr. Lawrence W. Bierlein, Esq. 

1101 30* Street, N.W., Suite 500 

Washington, DC 20007 

FAX: 202 625-4363 

I fiirther certify that on this date I have served the original of the AGENCY'S RESPONSE TO 

WITNESS JAY ROMANO'S MOTION TO QUASH SUBPOENA Discovery by postageprepaid, certified mail, return receipt requested and facsimile transmission, addressed as follows: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

FAX: (202)493-5020 

DATED: ^:;j^ ^ /Cj20j O 

Federal Aviation Admmistratioi)^ /\ 

Office of Regional Counsel 

222 West 7th Avenue, Box 14, AAL-7 

Anchorage, Alaska 99513-7587 
Defendant: Jay Romano/Redox Tech, LLC ;i^ 

(US 

Return of Service 'S' 

Case Number \^ ^ 

Process Service made by Date 6/3/10_ Time 4;42 pm . 

Elbert Lawrence 

(Name of Server (Print) Title: Process Server 

Check one box below to indicate appropriate method of Service 

[] Served personally upon the defendant: 

Place where served: 

[x] A. Left copies there of at the defendant's dwelling of usual place of abode with a person of suitable 

age and discretion then residing therein. Name of person with whom the documents were left: 

B. Left copies there of at the defendant's workplace. Name of person with whom the documents were left: 

_ Jackie Satterwhite 

Title/Relationship; _ Account for Redox_ 

Sex:_f Age:_55 Height: _5"5" Weight: 160_ Color of skin _ w 

Distinguishing: 

Place where served: _200 Quade Drive, Cary, Nc. .business no longer located at 1006 Morrisville Parkway, 

Cary, NC 

[] Return unexecuted: 

1 attempt: Date: /j / time: 2nd attempt: Date: / / ^time: 

3"* attempt: Date: / / time: 

[x] Other (specify): ^Ms. Satterwhite_indicated Jay Romano was now working out of the New England office. 

DECLARATION OF SERVER 

I declare under penalty of perjury under the laws of the United States of America that Statements contained in the 

Returns of Service Document are true and correct. At the time of service I was at least 18 yeajfs o^g e and not a party to 

this action. 

Executed on C^ / ^ I N ? tJjJ^^ ^ d\Ouu^ 

Date Signature of Server 

..o"';5 VICTOa'\ 6307-B Angus Drive, Raleigh, NC 27616 

/<^- VH /^ , _Q.h jggjj ,jgfQj.g jj^g ^y3 •Ijrh, day of llM' ^ . 20/Q. 

[_^tx:bvf 
Subpoena Authority i ^ 

Glenn Brown to: Amiel Rossabi 04/09/2010 11:51 AM 

AAL-007, Office of Regional Counsel 

From: Glenn Brown/AAUFAA 

To: "Amiel Rossabi" <arossabi@frb-law.com> 

Amiel, 

Our statutory authority to issue a subpoena is 49 U.S.C. § 46104(a)(1). In addition to the authority for us 

to seek judicial enforcement in subsection (b), § 46313 of Title 49 make it a crime not to appear. I don't 

think anyone has ever been prosecuted under it, but it remains on the books. The implementing 

regulation is 14 C.F.R. § 13.228. 

Glenn 

E/^l,:L-+ B