10/13/2011 15:34 FAX 2024935142 FAA + DMS ElOOI/OOT 

^ RECEIVED 

'-I^J ^ OCT - 6 2011 

^•^"^•^ ^ HEAWDOCKET 

October 5, 2011 

RE: Response to. Order To Show Cause, FAA Docket No. CPIOSOOOOO, DMS FAA-2011-O670, FAA Case 

No. 2010SO700422 

The Honorable Richard C. Goodwin, ?:; 

Administrative Law Judge ~J 

Office of Hearings, M-20 i ^ n-^^i:c 

U.S. Department of Transportation — ^T^'^gfo 

1200 New Jersey Avenue, S.E. ' ^ n-S ^ 

Washington, DC 20590 JJ ^^ ^ 

The Honorable Richard C. Goodwin, LU C?^ "' 

a-) 

This is in response to your Order to Show Cause, Served September 29, 2011, WHEREFORE, it is 

OREDERED as follows: 

1. On or before October 7, 2011 (filing date). Respondent shall file a response to this Order stating 

why the relief requested in Complainant's Motion should not be granted. 

2. On or before October 7, 2011, Respondent shall file an Answer to the within filed Complaint; and 

3. On or before October 7,2011 (filing date). Respondent shall fully comply with our Procedural 

Order; and 

4. Absent full and complete responses to Ordering paragraphs 1, 2, and 3, Respondent may be 

sanctioned including, but not limited to, allegations in the Complaint may be deemed admitted; 

Respondent may be precluded for introducing any evidence at the hearing other than personal 

testimony; and/or the hearing may be limited to the issue of sanction. 

With regard to paragraph one (1) above, the respondent believes it is necessary to look at the 

following, complete correspondence history, of this matter rather than to pick a historical review date of 

June 10, 2011, as contained in the COMPLAINANT'S MOTION TO DEEM ALLEGATION ADMITTED AND 

MOTION FOR HEARING ON SANCTION ONLY: 

On September 8, 2010, the respondent's Director of Maintenance responded to Lisa Evans, Federal 

Aviation Administration's Security and Hazardous Materials Division, Regional Headquarters, Letter of 
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Investigation. In this letter it was communicated that the individual in the Respondent's shipping 

department simply did not realize the aircraft fuel control and fuel pump assembly fell into the 

Hazardous Materials/Dangerous Goods category. It was further communicated that the Respondent's 

shipper had received the appropriate hazardous materials/dangerous goods training. It has been the 

Respondents' believe, all along in this case, that it did not "knowingly" offer to United Parcel Service 

(UPS) a one-piece, consisting of a fiberboard box, containing hazardous material for transportation by 

air. 

On November 30, 2010, the Respondent in a letter to Eddie L. Thomas requested a copy of all 

Federal Aviation Administrations' Facts, Items of Proof, and any other releasable information associated 

with this case. 

On March 2, 2011, there was an Informal Conference (telephone) conducted between the 

Respondent and the Complainant's legal counsel. It was again communicated that this matter was 

about an error made by the Respondent's shipping department and not about the Respondent 

"knowingly" offering hazardous materials for transportation by air. It should be noted that the 

Complainant's legal counsel stated that "knowingly" in these matters meant the Respondent's shipper 

"should have known'. The Respondent objected to this being the only possibility since the shipper had 

received and completed the appropriate hazardous material for transportation training. Finally, since an 

appropriately trained shipper had made a shipping error, the discussion continued along the lines of the 

Respondent's need to conduct additional specialized training to prevent further violations of shipping 

undeclared dangerous goods. During this conference the Respondent committed to conducting 

specialized training with a known dangerous goods expert. 

On May 5, 2011, the Respondent communicated in a letter to the Complainant's legal counsel that in 

fact the specialized training had been completed. In this letter is was communicated that the training 

event served as an opportunity for both Respondent's Stores and Maintenance staff to develop a keen 

understanding of the Hazmat/Dangerous Goods regulations and the potential dangers associated with 

non-compliance, even inadvertent non-compliance, such as the Respondent's recently experienced. In 

an effort to make this the best training event possible, the Respondent also had requested that FAA 

Special Agent Hanson's participation. Special Agent Hanson participated by providing additional 

discussion points which added value to the overall objective of ensuring the Respondents' personnel 

NEVER ship or accept Hazmat/Dangerous Goods. 

On June 8, 2011, the Respondent requested a Formal Hearing and communicated in the form of a 

"Written Answer" to the Complainant's legal counsel. In this Written Answer the Respondent provided 

either a Deny or Admit response to the fifteen allegations contained in the Final Notice of Proposed Civil 

Penalty. In this Written Answer the Respondent DENIED the first allegation, which alleged that on 

August 6, 2010, Sky King (the Respondent) knowingly offered to United Parcel Service (UPS) a one-piece 

consisting of a fiberboard box containing hazardous materials for transportation by air. And, ADMITTED 

to all the other allegations. 

On September 23, 2011, the Federal Aviation Administration's Complainant states in the 

COMPLAINTANT'S MOTION TO DEEM ALLEGATIONS ADMITTTED AND MOTION FOR HEARING ON 

SACTION ONLY; that on June 10, 2011, the Complainant filed a Complaint in this matter with the Hearing 

Docket and served a copy on Respondent. It appears that the Complaint was received by Sally Lukenbill 
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on June 20, 2011, at Sky King's, 3600 Power Inn Road, Suite H, Sacramento, California. Notwithstanding, 

the Respondents' representative, Stephen A. Badger was never given the Complaint. The Respondent 

has searched its new primary business address, 910 Florin Road, Suite 200, Sacramento, California 

95831, and is unable to find acopy of the Complaint; it is standard procedure for the Respondent to 

place all such communications in a special binder marked FAA correspondence and to make a copy for 

Stephen A. Badger, the Respondent's representative. Since Stephen A. Badger never received a copy of 

this Complaint it is obvious why it was never responded to. It is the Respondents' believe that the 

Complaint would have contained the same fifteen (15) allegations that were previously ANSWERED in 

the response to the Final Notice of Civil Penalty. In that, ANSWER, the respondent DENIED the first 

allegation and ADMITTED to the remaining fourteen (14) allegations. Again, the Respondent has 

consistently DENIED knowingly offering hazardous materials for transportation by air and consistently 

ADMITTED that an aircraft fuel control and fuel pump assembly was shipped for its maintenance facility 

without the proper documentation and labeling. 

During our search for the June 10, 2011, the Complaint did find the PROCEDURAL ORDER, served 

September 6, 2011, that was previously unknown to the Respondent's representative Stephen A. 

Badger. In this instance, the document was properly filed in the Respondents' FAA Correspondence 

Binder; however, a copy had not been made and sent to Stephen A. Badger according to Respondent's 

policy and procedure. It should be noted that his Order was not sent by certified mail and since it was 

addressed to Sky King's old address it had to be forwarded to the new business address taking additional 

time to be delivered and there is no record of the delivery date. 

The Respondent apologies for its mishandling of these important documents and believes it has fixed 

its internal handling of all correspondence. Its seems that the most logical explanation for these 

shortcomings was the fact that Sky King was in the process of moving their primary business location 

during and around the time frame of the mishandling of these important documents. The Respondent 

understands that it is 100% responsible for this correspondence problem. The Respondent would ask 

that this explanation be considered good cause, because it certainly was not a matter of willful 

disregard! The Respondent had responded properly on all correspondence in this matter until these two 

incidents. 

On August 29, 2011, the respondent received a NOTICE OF ASSIGNMENT OF PROCEEDING, signed by 

Ronnie A. Yoder, Chief Administrative Law Judge. The Notice stated; this proceeding (heretofore 

designated as FAA Case No. 2010SO700422) was assigned to Administrative Law Judge Richard C. 

Goodwin, including, the requirement that all future pleadings and other communications regarding this 

proceeding shall be served on the Judge, the FAA Hearing Docket, and the other persons on the attached 

Service ListOn September 6, 2011, the Respondent was served a PROCEDURAL ORDER. As stated above, the 

Respondent's representative was not aware of this Order until October 3, 2011, and since the Order was 

sent as Uncertified Mail there was no delivery date. The Respondent will respond to the Order (see item 

3 below). 

On September 30, 2011, the Respondent received the Federal Aviation Administration's MOTION TO 

DEEM ALLLEGATIONS ADMITTED AND MOTION FOR HEARING ON SACTION ONLY. The most important 

problem with this Motion is that it does not truthfully reflect want has been communicated in 
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Respondent's responses to Complainant's allegations, in that, the Motion does not mention or refer to 

the allegation Denied. The allegation denied is really the only allegation containing a specific regulatory 

requirement. It is our opinion that the Federal Aviation Administration's Enforcement Investigative 

Report does not have evidence to substantiate their allegation that Sky King "knowingly" offered 

hazardous materials for transportation by air. Below is the Respondent's answer to each numbered 

paragraph of the Complaint in the "MOTION TO DEEM ALLEGATIONS ADMITTED AND MOTION FOR 

HEARING ON SACTION ONLY: 

Paragraph 1-

On June 10, 2011, complainant filed the complaint in this matter with the Hearing Docket and 

served a copy on Respondent. 

ResponseADM n 

Paragraph 2-

Respondent received the Complaint on June 20, 2001. 

ResponseADMiT, however, there were extraordinary circumstances associated with the mishandling of 

this correspondence and the Complaint never got into the hands of the Respondents' 

representative for this matter (previously discussed above). The Respondent believes that there 

was good cause for not responding to this ComplaintParagraph 3-

Pursuant to Section 13.209(a) and Section 13.211(e) Respondent had 35 days (30 days plus 5 for 

mail service) to file and answer. The Complaint explicitly reminded Respondent of this 30-day 

deadline. Under the Rules of Practiced, Respondent's answer was due on or about August 1, 

2011. Pursuant to Sertion 13.209(e), "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." 

ResponseThe Respondent is without sufficient knowledge or information to admit or deny this 

complaint, since of this date the Respondent's assigned representative in this matter has not 

seen the Complaint and therefore has no knowledge that the complaint explicitly reminded the 

Respondent of a 30-day timeframe to file an answer. 

Paragraph 4-

Respondent was again reminded of its duty to file an answer in the Procedural Order served on 

September 6, 2011. 

ResponseDENY- On the date this Complaint was written/served the Complaint is not valid. Given that the 

Order was served, via normal mail on September 6, 2011, (it could not have been available to the 

respondent until September 12 probably later), eleven (11) days before the September 23, 2011, 
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MOTION TO DEEM ALLEGATIONS ADMITTED AND MOTION FOR HEARING ON SANCTIONS ONLY, 

was submitted. The Complaint was written without allowing for a 30 day response time. 

Paragraph 5-

According to Section 13,209(f), a person's failure to file an answer without good cause shall be 

deemed an admission of the truth of each allegation contained in the complaint. See, FAA v. 

Budde W. Playter, FAA Docket No. CP89GL0257 (March 19,1990) ("Although this is a severe 

penalty for failure to file an answer, the rule is clear and does not permit exceptions."). 

ResponseDENY- It is the Respondents' belief that there was good cause for failure to answer the 

Complaint. Although this respondent representative has never seen the complaint, it is our 

experience that this Complaint will contain the same allegations as the Final Notice of Civil 

Penalty, to which, the Respondent did appropriately answer. In that Answer, the respondent 

continued to DENY that it knowingly offered hazardous materials for transportation by air. 

Paragraph 6-

Complalnant requests a ruling on this motion as soon as possible, to allow adequate preparation 

if there is a hearing in San Francisco, California, but not later than seven days before the hearing 

as require by 14 C.F.R., Section 13.218(e0(2) ("The administrative law judge shall resolve all 

pending prehearing motion not later than seven days before the hearing.") 

ResponseDeny- It appears that the Complainant's only interest in the matter is to take some type of 

punitive action. There has been no consideration given by the Complainant for the corrective 

actions taken by Sky King and described in its May 5, 2011, letter. It should be noted that the 

Respondent coordinated with the Complainant in the development and time frame of the 

delivery of this specialized training, including coordinating with FAA Special Agent to ensure his 

participation. The Respondent does not understand the Complainant's need for a rush to 

judgment, considering this matter started over a year ago; is it possible that the Complainant is 

only interested in getting rid of the case with no interest in fairness? It is the Respondent's 

respectful request of the Administrative Law Judge to consider that the Respondent has worked 

in cooperative manner with the Complainant, taken expensive but effective actions to ensure the 

respondents' personnel NEVER ship or accept Hazmat/Dangerous Goods, consistently stated 

matter involved human error not a knowingly violation of the regulation, and is interested in 

trying to reach a settlement with the Complainant. It should be noted that there have been no 

attempts by the Complainant to reach a mutual settlement. 

On October 5, 2011, at approximately 9:45 PDT, the Respondent attempted to contact the 

Complainant's Legal Counsel at telephone number (404) 305-5200, and left a voice mail requesting a 

copy of the June 10, 2011, Complaint. As previously stated, it is the Respondent's opinion that the 

Complaint will contain the same allegations as the Final Notice of Civil Penalty to which the Respondent 

will answer in the same manner, if there is anything different between the two (2) complaints the 

Respondent respectfully request an opportunity to answer the Complaint once it has received a copy of 
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the Complaint. It is now 11:45 PDT and the Respondent has not received a return call from the 

Complainant's legal counsel; and considering the October 7, 2011, date constraints contained in the 

September 29, 2011, ORDER TO SHOW CAUSE, the Respondent is going to mail this document without 

waiting any longer for a return call from the Complainant's legal counsel. 

The Respondent fully intends to comply with the September 6,2011, PROCEDURAL ORDER. It is our 

understanding that the Procedural Order reminds the Respondent that the Rules of Practice require the 

Respondent to file a written Answer or motion within thirty (30) days after service of the Complaint, that 

a general denial is deemed a failure to file an Answer, that failure to file an Answer without good cause 

is deemed an admission of each allegation in the Complaint, and that, absent agreement of the parties, a 

party seeking an extension of time must file a written motion not less than seven (7) days before the 

document is due, absent good cause shown. As previously stated, the Respondent is of the opinion that 

it has responded to all Complaints, except for the June 10, 2011, Complaint, which at this time and date 

the Respondent's assigned representative has not seen the Complaint. The Respondent is not only fully 

aware of the requirement to answer all complaints but considers answering the complaints In its best 

interest. 

The Respondent understands that it is ordered to adhere to the following procedural schedule: 

1. Venue shall be San Francisco, CA.; 

2. On or before November 4, 2011, the Respondent shall conclude all discovery including, but not 

limited to, depositions, document production, response to production requests and/or 

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

the Administrative Law Judge for resolution in a timely manner; 

3. The Respondent shall be prepared to present its case at a hearing on or after November 4, 2011, 

subject to the availability of courtroom facilities. 

4. The Respondent will be given an opportunity to file Post-Hearing briefs and arguments pursuant 

to a schedule to be determined at the hearing. 

5. The Respondent understands that settled cases will not be removed from the hearing docket 

until the proper written pleadings(s), consistent with the applicable rules, is received by the 

presiding judge. 

6. The Respondent is 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 US. 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 

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

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

Respectfully Submitted, 

Badger O 

Director of Safety and Security 
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CERTIFICATE OF SERVICE 

I hereby certify that on October S^ . 2011, a copy the forgoing Answer to Order to Show Cause FAA 

Docket NO. CPIOSOOOOO, DMS FAA020H-0670 was sent by United Parcel Service (UPS) courier to: 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building—Suite 2W1000 

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. 

Washington, DC 20590 

Gerald A. Ellis, Complainant's Counsel 

Attorney, Office of the Regional Counsel 

Southern Region, ASO-7 

Federal Aviation Administration 

P.O. Box 20636 

Atlanta, Georgia 30320 

^ 

/^teph ^ A. Badger