Michael L. Dworkin (CA Bar# 64047) 

MICHAEL L. DWORKIN and ASSOCIATES 

465 California Street, Suite 210 

San Francisco, CA 94104 

Telephone: 415-421-2500 

FAX: 415-421-2560 

Email: law@avialex.com 

Counsel for MARTINAIRE AVIATION, LLC 

UNITED STATES OF AMERICA 

DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, D.C. 

In the Matter of: 

MARTINAIRE AVIATION, LLC 

FAA Case No. 2011SW700189 

DMS No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S 

MOTION IN LIMINE TO PRECLUDE 

TESTIMONY THAT HMR SECTION 

175.33 HAS BEEN PROMULGATED 

AND SERVES TO ASSIST FIRST 

RESPONDERS 

(MOTION IN LIMINE NO. 3) 

Judge: The Honorable Richard C. Goodwin 

TO THE DEPARTMENT OF TRANSPORTATION, THE HONORABLE RICHARD C. 

GOODWIN, ADMINISTRATIVE LAW JUDGE, AND TO THE ADMINISTRATOR, 

FEDERAL AVIATION ADMINISTRATION AND HIS ATTORNEYS OF RECORD: 

In accordance with 14 C.F.R. Section 13.218 (Rule 13.218) and the Federal Rules 

of Civil Procedure, Martinaire (Respondent) moves that the Administrative Law Judge 

(ALJ) preclude any attempt by Complainant to adduce or introduce any testimony or 

other evidence that 49 C.F.R. Section 175.33 (HMR Section 175.33) has been 

promulgated and exists for the purpose of providing assistance to first responders in the 
event of an aircraft mishap. 

FACTS 

Complainant issued a Notice of Proposed Civil Penalty (NO PCP) on May 20, 

2012. A Final NOPCP was issued on January 7, 2013 from which Respondent appealed 

and the Final NO PCP was filed as the complaint in DMS No. FAA-2013-0040 on 

January 15,2013 seeking a civil penalty of$206,550.00 for 12 alleged Notice to Pilot In 

Command (NOPIC) violations (HMR Section 175.33) Complainant discovered during an 

inspection of several hundred NOPIC's Respondent provided covering a 90 day period. 

Respondent timely answered the Complaint, raising a number of affirmative 

defenses. 

This civil penalty is unprecedented. Complainant's witnesses have testified at 

depositions taken in Arlington, Texas on May 17, 2013 that to their best recollection and 

knowledge, Complainant has never sought civil penalties of this size for alleged N 0 PIC 

violations and, in fact, this civil penalty is several times the size of the maximum civil 

penalty that Complainant has ever sought for a NO PIC violation against any air carrier, 

large or small. 

ffJyiR VIOLATIONS ALLEGED: 

The pertinent sections ofHMR Section 175.33, which Respondent has been 

charged with violating, i.e., Sections 175.33(a)(l); (l)(i); and (7), provide: 

§ 175.33 Notification of pilot-in-command. 

(a) Except as provided in §175.10, when a hazardous material subject to the 

provisions of this subchapter is carried in an aircraft, the operator of the aircraft 

must provide the pilot-in-command with accurate and legible written information 

2 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY THAT 

HMR SECTION 175.33 HAS BEEN PROMULGATED AND SERVES TO ASSIST FIRST 

RESPONDERS (MOTION IN LIMINE NO.3) 
as early as practicable before departure of the aircraft, which specifies at least the 

following: 

(I) The proper shipping name, hazard class and identification number of the 

material, including any remaining aboard from prior stops, as specified in 

§ 172.101 of this subchapter or the ICAO Technical Instructions (IBR, see 

§ 171.7 of this subchapter). In the case of Class 1 material, the compatibility 

group letter also must be shown. If a hazardous material is described by the 

proper shipping name, hazard class, and identification number appearing in: 

(i) Section 172.101 of this subchapter, any additional description 

requirements provided in §§172.202 and 172.203 ofthis subchapter 

must also be shown in the notification. 

(7) The date of the flight; 

(Emphasis Added) 

There is no regulatory requirement that the NO PIC be prepared for anyone other 

than the pilot in command. There is certainly no regulatory requirement that the NO PIC 

be prepared for or submitted to potential frrst responders in the event of an aircraft 

mishap. 

COMPLAINANT ATTEMPTS TO ENFORCE REQUIREMENTS THAT 

DO NOT EXIST: 

Although it has not been alleged in the Complaint, as this matter has proceeded 

over the past several months it has become apparent that Complainant appears to have 

taken the position that erroneous or incomplete NO PIC information "puts the lives of first 

responders ... at risk." Please see Declaration of Paul Klimas, dated June 13, 2013, 

attached to Complainant's Motion for Decision, dated June 17,2013. 

Nowhere in the HMR's is there a requirement that NOPIC's be prepared or 

available for first responders. There are no written FAA opinions, handbooks, orders, 

advisory circulars or other publicly disseminated or publicly available information that 

3 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY THAT 

HMR SECTION 175.33 HAS BEEN PROMULGATED AND SERVES TO ASSIST FIRST 

RESPONDERS (MOTION IN LIMINE NO.3) 
states that the NO PIC, in addition to serving as a notice to the pilot in connnand, is also 

to be used for emergency response purposes. Inspector Paul Klimas, Complainant's 

investigating inspector (and designated by Complainant as one of its two persons most 

knowledgeable), admitted this in his deposition taken at Arlington, Texas on May 17, 

2013 (Klimas Depo. 9:20-23 and 9:24-10: 13). 1 Bryan Buchanan, Complainant's 

Manager, Hazardous Materials for Southwest Region (and designated by Complainant as 

its second person most knowledgeable), admitted this in his deposition taken in 

Arlington, Texas on the same day (Buchanan Depo. 9: 11-19)_2 

While first responders may benefit from NO PIC information, there is no 

regulatory requirement that this information be prepared for them. Under HMR Section 

175.33 the only intended beneficiary ofthe NO PIC information is the pilot in connnand 

(Here the pilots in command prepared their own NOPIC's). 

The United States Supreme Court placed an important limit on the deference 

courts should accord to a federal administrative agency's interpretation of its own 

regulations in Christopher v. SmithKline Beecham Corp. 3 Invoking principles of "fair 

warning" and "unfair surprise," the Court held that deference does not apply, at least 

retrospectively, where an agency's "interpretation of ambiguous regulations [would] 

1 The entire transcript of Mr. Klimas' deposition was previously submitted under cover of 

Respondent's Transmittal of Exhibits on June 26,2013, as Exhibit F thereto. 

2 The entire transcript of Mr. Buchanan's deposition was previously submitted under 

cover of Respondent's Transmittal of Exhibits on June 26, 2013, as Exhibit G thereto. 

3 No. 11-204 (June 18, 2012) 

4 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY THAT 

HMR SECTION 175.33 HAS BEEN PROMULGATED AND SERVES TO ASSIST FIRST 

RESPONDERS (MOTION IN LIMINE NO.3) 
impose potentially massive liability on [a regulated entity] for conduct that occurred well 

before that interpretation was announced." 

There has been no regulatory reference, testimony or documents suggesting that 

Respondent should have known of a requirement to prepare NOP!Cs for the purpose of 

advising first responders and the legal conclusion that a regulatory requirement to do so 

existed. 

While the Administrator's interpretation here of Section 175.33 is not supported 

in the words of the regulation or elsewhere, according the Administrator deference to this 

interpretation of its own regulation would result in the imposition of massive retroactive 

liability in an unprecedented amount. As set forth elsewhere, Complainant has never 

sought a civil penalty of this size for alleged NO PIC violations and, in fact, this civil 

penalty is several times the size of the maximum civil penalty that Complainant has ever 

sought for a NO PIC violation against any air carrier, large or small. 

Complainant has sought and acquired a Protective Order into the "deliberative 

process involving materials, data, information and testimony" regarding how 

Complainant arrived at its civil penalty of $206,550.00. Allowing Complainant to 

arbitrarily change its interpretation of Section 175.33 to support such a large penalty 

would clearly amount to "unfair surprise" 4 

4 Long Island Care at Hom Ltd. V. Coke, 551 U.S. 158, 170-71 (2007) 

5 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY THAT 

HMR SECTION 175.33 HAS BEEN PROMULGATED AND SERVES TO ASSIST FIRST 

RESPONDERS (MOTION IN LIMINE NO.3) 
Respondent should not be charged with violating a regulatory requirement that 

does not exist nor should Respondent be assessed substantial civil penalties for violating 

regulatory requirements that do not exist.5 

CONCLUSION: 

For the reasons stated above, Respondent asks that the Administrative Law Judge 

issue an Order prohibiting: 

I. Any testimony or other evidence as to the purpose of the NO PIC other 

than those specifically enumerated in HMR Section 175.33; and 

2. Preclude the offering or receipt of any testimony or other evidence that 

NOPIC's are required to assist first responders in the event of an 

aircraft mishap. 

Respondent respectfully requests that this Motion In Limine not be taken under 

submission and that a Court Order granting or denying this Motion be made. 

Dated this J'{~h day of May, 2014 

5 It is unreasonable "to require regulated parties to divine the agency's interpretations in 

advance or else be held liable when the agency announces its interpretations for the first 

time in an enforcement proceeding." Christopher v. SmithKline Beecham Corp. No. 11-

204 (June 18, 2012). 

6 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY THAT 

HMR SECTION 175.33 HAS BEEN PROMULGATED AND SERVES TO ASSIST FIRST 

RESPONDERS (MOTION IN LIMINE NO.3) 
CERTIFICATE OF SERVICE 

The undersigned hereby certifies that on this ~day of May, 2014, a true and correct 

copy of the foregoing 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE 

TESTIMONY THAT HMR SECTION 175.33 HAS BEEN PROMULGATED AND 

SERVES TO ASSIST FIRST RESPONDERS (MOTION IN LIMINE NO.3) 

was served as follows: 

The Honorable Richard C. Goodwin 

Office of Hearings, M-20 

1200 New Jersey Avenue, S.E. 

East Building Ground Floor, Room El2-

320 

Washington, D.C. 20590 

{Federal Express} 

Federal Aviation Administration 

800 Independence Avenue SW 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building- Suite 2Wl 000 

{Federal Express} 

James Archier, Esq. 

Federal Aviation Administration 

Office of the Regional Counsel, ASW-7 

2601 Meacham Boulevard, Suite 6E 

Fort Worth, TX 76137 

{Federal Express} 

CAITLIN M. MILLER 

7 

FAA Case No. 2011SW700189/FAA Docket No. FAA-2013-0040 

MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY THAT 

HMR SECTION 175.33 HAS BEEN PROMULGATED AND SERVES TO ASSIST FIRST 

RESPONDERS (MOTION IN LIMINE NO.3)