68/09/2011 15:19 4252271007 ANM7 PAGE 02/07 

1 

2 

3 

i 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

le 

19 

20 

21 

22 

23 

24 

25 

2€ 

27 

28 

29 

30 

31 

32 

33 

34 

35 

36 

37 

39 

39 

40 

fll 

42 

43 

44 

45 

46 

47 

46 

49 

50 

51 

52 

53 

KYLE E. L0MA20W 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LI^JDAVE., s w 

RENTON, WASHINGTON 98057 

TELEPHONE: 425-227-1847 

FACSIMILE: 425-227-1007 

••;;»EMTO F 

..^^•^[^SPORI>\T!O^J• 

L^'.K..Af-r OPERATIONS 

?^i' AUG I 5 p |: 3b 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C 

In the Matter of: 

FEDERAL EXPRESS CORPORATION 

In the Matter of: 

EMPIRE AIRLINES, INC. 

FAA Docket No. CPJ ONMO206 

FAAcaseNo. 2009NM700556 ' 

DMS No. FAA-2010-0790 

FAA Docket No- CP10NMq007,._^ 

FAA case No. 2009NM700a53 

DMSNo. FAA-20I0-079I 

Judge: Richard C. Goodvr-in 

MOTION IN LIMINE 

AND REQUEST FOR EXPEDITED RULING 

JUDGE GOOD'WTN: 

Complainant, through her undersigned coimselj hereby moves pursuant to 14 C.F.R. § 13.218, 

for a Motion In Limine concerning Respondent's Noticed Witnesses for the following reasons: 

1 - On August 8, 201U Respondent notified Complainant that it had five witnesses that he 

intended to call. From the summary of their expected testimony, it appears that two of 

these witnesses are being offered for reasons that are irrelevant and immaterial to these 

proceedings. 

2. Respondent has indicated that Jay Johnston, Regulatorv* Compliance Manager, will be 

called to testify concerning the rulemaking and discussions surrounding the regulations at 

issue in this case. He wll testify as to the supposed effect on the healthcare industry and 

UN3373 shippers if the Federal Aviation Administration's (FAA) interpretation of the 

rule requires carriers to perform an inspection at acceptance of UN3373 shipments. He 

will further testify as to the United Kingdom (UK) recommendations for U'N3373 

shipments and how the alleged interpretation will arguably affect international shipments. 

None of this is relevant to the facts at issue in this case. Discussions sim-ounding the 

deliberative process leading to the adoption of the rules at issue here are completely 

irrelevanL Any hazardous material rule entails many discussions leading up to its 

adoption, but none of that is relevant as the final rule is the rule. The rule itself and any 

Agency's Motion in Limine 

DMSNo. FAA-2 0 10-0790 A FAA-2010-0791 

FAA Docket No. CP10NM0006 &. CP]0N^ra007 

FAA Case - 2009NM70005^ and 2009NM700065 

Page i of3 

K^iXE E. LOMKZDW, FAA ATTORNEY 

TEL: 425.227.1S47; FAX: 425.227.1007 
0Ei/0g/2ail 15:19 ^252271087 ANM7 PAGE . 03/87 

1 

2 

4 

5 

7 

a 

10 

11 

12 

12 

14 

13 

le17 

16 

13 

20 

21 

25 

2 i 

24 

25 

26 

27 

28 

29 

30 

3X 

32 

33 

34 

35 

36 

37 

38 

3y 

40 

41 

43 

45 

44 

45 

45 

47 

46 

49 

50 

51 

52 

53 

published comments from the public would be relevant, but backdoor discussions leading 

up to a finalized rule are not relevant to the facts surrounding this case. Furthermore, the 

UK recommendations for UN3373 shipments is also completely irrelevanL 

Recommendations of any kind are just recommendations. All that is relevant here are the 

actual published hazardous materials rules that all carriers and shippers must adhere to. 

3. Respondent has indicated that Tom Ferguson, Technical Consultant and Instructor, is 

being offered, but does not indicate what he is being offered for as there is no description 

of what he will actually testify' to. Instead what is being offered is essentially his resume, 

but there' is nothing indicating that he has any knowledge of the facts of tliis particular 

case or how his testimony would benefit the coinl. 

THEREFORE, tlie Complaint moves that the Administrative Law Jtidge {ALT): 

a. Preclude tlie testimony of Jay Johnston and Tom Ferguson, as their testimony is totally 

irrelevant. 

b. In the altemative, limit the testimony of Jay Johnston and Tom Ferguson to the facts 

. surrounding this case and prohibit them frorn testifying about the deliberative process 

behind the hazardous materials rules at issue in this case or any recommendations to 

changes regarding the regulations. 

c. As tlie hearing in this matter is set for August 25, 2011, require a Response fi-om the 

Respondent by August 16, 2011, so the AJi-F may rule on this matter prior to the hearing. 

DATED this 9*^ day of August 2011. 

Respectfiilly submitted. 

1^^/^ f^^r^ 

Kyle E. Lomazow 

FAA Attorney 

Agency's Motion in Limific 

DMS No. FA.*.-20\0-0790 ^ FAA.-2010-0791 

FA,\ Docket No. CP10NNW006 & CPl 0NM0007 

FAA Case - 2009NM700056 and 2009NM700065 

Page 2 of3 

K'.'LEE. LOMAZOW, FAA AlTOItKEy 

TEL; «S.227.\847; FAX". 425.227.1007 
08/09/2011 15:19 4252271007 ANM7 PAGE 04/07 

1 

2 

3 

4 

5 

6 

7 

B 

9 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

26 

27 

26 

2S 

30 

31 

32 

33 

34 

35 

36 

37 

30 

3 9 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

CERTIFICATE OF SERVICE 

I hereby certif>' that tlie foregoing Agency's Motion in Limine has been ser\'ed via facsimile 

and overnight this dale, to the following: 

The Honorable Richard C. Goodwin 

Office of hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm E12-320 

Washington, D.C. 2O590 

TEL: 202-366-2139 

FAX: 202-366-7536 

Federal Aviation Administration 

SCO Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2W1 COO 

.FAX: 202-493-5142 

Cynthia Chandler-Snell 

Staff Attomey, Federal Express, Inc. 

3620 Hacks Cross Road 

Building 8,3'"^ Floor 

Memphis, TN 38125-8800 

TEL: 901-434-8361 

FAX: 901-434-8283 

Dated this 9th day of August, 2011. 

EJan 

^^gt- ^IWIIALLBLI 

iana Stephenson 

Office of Regional Counsel (ANM'7) 

Federal Aviation Administration 

1601 Lind Ave. SW 

Renton. WA 98057 

425-227-2164 

Age/icy's .Motion in Limine 

DMSNo. FAA-2010-0790&FA.V20IO-0791 

FAA Docket No. CP10NM0OO6 A CPlONMCiOO? 

FAA Case - 2009NM700056 and 2009NM700065 

Page 3 of 3 

KYLE E. LCfMAZOW. FAA ATTORNEy 

TELi 425.227.1847; FAX: 425.227.1007 
08/09/2011 15:19 4252271007 ANM7 PAGE 05/07 

1 

2 

3 

4 

5 

6 

7 

8 

9 

10 

11 

12 

13 

14 

15 

16 

17 

XB 

19 

20 

21 

22 

23 

24' 

25 

26 

27 

25 

23 

30 

31 

32 

33 

34 

35 

36 

37 

38 

39 

40 

41 

42 

43 

44 

45 

46 

47 

49 

45 

50 

51 

52 

53 

KYLE E, LOMAZOW 

FAA OFFICE OF REGIONAL COUNSEL 

1601 LIND AVE., SW 

RENTON, WASHINGTON 98057 

TELEPHONE: 425/227-1847 * 

FACSIMILE: 425/227-1007 

U^fTTED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

FEDERAL EXPRESS CORPORATION 

In the Matter of: 

CORPORATE AIR 

FAA Docket No. CPlONMOOll 

FAA case No. 2008NM700127 

DMS No. FAA-2010-0977 

FAA Docket No. CPIONMOOIO 

FAA case No. 2008NM700126 

DMSNo. FAA-2010-0975 

Judge: Richard C, Goodwin 

MOTION IN LIMINE 

APrt) REQUEST FOR EXPEDITED RULING 

JUDGE GOODWIN: 

Complainant, tiirongh his "undersigned counsel, hereby moves ptusuant to 14C.F.R. § 13.218, 

for a Motion In Limine concerning Respondent's Noticed "Wimesscs for tlie following reasons: 

1. On August 8, 2011, Respondent notified Complainant that it had five witnesses that he 

intended to call. From the summary of their expected testimony, it appears that two of 

these wimesses are being offered for reasons that are irrelevant and immaterial to these 

proceedings. 

2. Respondent has indicated.that Jay Johnston, Regulatory Compliance Manager, \%nll be 

calJed to testii>' concerning the rulemaking and discussions surrounding the regulations at 

issue in this case. He will testify as to the supposed effect on the healthcare industry and 

UN3373 shippers if the Federal Aviation Administration's (FAA) interpretation of the 

rule requires carriers to perfonn an inspection at acceptance of UN3373 shipments. He 

Hill further testify as to the United Kingdom (UK) recommendations for UN3373 

shipments and how the alleged interpretation will arguably affect international sliipments. 

None of this is relevant to the facts at issue in this case. Discussions surrounding the 

deliberative process leading to the adoption of the rules at issue here are completely 

irrelevant. Any hazardous materia] rule entails many discussions leading up to its 

adoption, but none of that is relevant as the final rule is the rule. The rule itself and any 

Agency's Motion in Limine 

DMS No. FAA-2010-0977 & FAA.2010^0975 

FAA Docket No. CPIOMMOOI1 & CPIONMOOIO 

FAA Case - 2O0SNM70126 &nd 2009KM70127 

Page 1 of 3 

KYLE R WMAZOW. FAA ATTORNEY 

TEL: 425-227-1847; FAX- 425-227-] 007 
98/99/2811 15:19 4252271007 ANM7 PAGE 06/07 

1 

2 

3 

4 

5 

6 

7 

B 

10 

11 

12 

13 

14 

15 

16 

17 

18 

19 

20 

21 

22 

23 

24 

25 

2g 

27 

26 

29 

30 

31 

32 

33 

34 

35 

35 

37 

35 

39 

40 

41 

42 

43 

44 

45 

46 

47 

46 

49 

SO 

51 

52 

53 

published comments from the public would be relevant, but backdoor discussions leading 

up to a finalized rule are not relevant to tlie facts surroimding this case. Furthermore, the 

UK recommendations for UN3373 shipments is also completely irrelevant. 

Recommendations of any kind are just recommendations. All that is relevant here are the 

acmal published hazardous materials rules tliat all carriers and shippers must adliere to. 

3. Respondent has indicated that Tom Ferguson, Technical Consultant and Instructor, is 

being offered, but does not indicate what he is being offered for as there is no description, 

of what he will actually testify to. Instead what is being otTered is essentially his resume, 

but there is nothing indicating that he has any knowledge of the facts of this particuJar 

case or how his testimony would benefit the court. 

•THEREFORE, the Complaint moves that the Administrative Law Judge (ALT): 

a. Preclude tlie testimony of Jay Johnston and Tom Ferguson, as their testimony is totally 

iiTe]e\'ant. 

b. In the altemative, limit the testimony of Jay Johnston and Tom Ferguson to the facts 

surrounding this case and prohibit them from testifying about the deliberative process 

behind the hazardous materials rules at issue in this case or any recommendations to 

changes regarding the regulations. 

c. As the hearing in this matter is set for August 25, 2011, require a Response from the 

Respondent by August 16, 2011, so the .ALT may rule on this matter prior to the hearing. 

DATED this 9^^ day of August 2011. 

Respectfully submitted. 

c/ -i'-k 

Kyle E. Lomazow 

FAA Attomey 

Agency's Motion in Limine 

DMSNo. FAA-20I0-O977&FAA-2010-O975 

FAA Docket No. CP ] ONMOO11 & CP 1ONMOO10 

FAACase- 2OO8NM70126 and 200?NM70127 

Page 2 of3 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 425-227-1847; F.-^X; 425-227-1007 
0S/Bg/2011 15:19 4252271007 ANM7 PAGE 07/07 

1 

2 

3 

4 

5 

6 

7 

S 

9 

10 

11 

12 

13 

14 

15 

16 

17 

16 

19 

20 

21 

22 

23 

24 

25 

26 

27 

23 

29 

30 

31 

32 

33 

34 

35 

35 

37 

36 

39 

40 

41 

42 

43 

44 

45 

46 

47 

48 

49 

50 

51 

52 

53 

CERTIFICATE OF SERVICE 

I hereby «;rtify that the foregoing Agency's Motion in Limine has been served via facsimile 

and overnight this date, to the following:' 

The Honorable Richard C. Goodwin 

Office of hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Rm EI2-320 

Washington, D.C. 20590 

TEL: 202-366-2139 

FAX: 202-366-7536 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, D.C. 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building - Suite 2WI0OO 

FAX: 202-493-5142 

Cynthia Chandler-Snell 

Staff Attomey, Federal Express. Inc. 

3620 Hacks Cross Road 

Building B, 3''* Floor 

Memphis, TN 38125-8800 

TEL: 901-434-8361 

FAX: 90M34-8283 

Dated this 9th day of August, 201 

1Z22 ^ 

DsEsL Stephenson 

Office of Regional Counsel (ANM-7) 

Federal Aviation Administration 

1601 LmdAve. SW 

Renton, WA 98057 

425-227-2164 

Agency's Motion in Limine 

DMS No. FAA-2010-0977 &. F.Vi-2010-0975 

FAA DocVct No. CPlONMOOl ] & CPIONMOOIO 

FAA Case - 2008NM70126 and 2009NM70127 

Page 3 of 3 

KYLE E. LOMAZOW, FAA ATTORNEY 

TEL: 4?,5-227-lS47; F.-OC: 425-227-1007