Michael L. Dworkin (CA Bar# 64047) MICHAEL L. DWORKIN and ASSOCIATES 465 California Street, Suite 210 SanFrancisco, 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.
Inthe Matter of:

MARTINAIRE AVIATION, LLC FAA Case No. 2011SW700189 DMS No. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION INLIMINE 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 LAWJUDGE, 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) andthe Federal Rules ofCivil Procedure, Martinaire (Respondent) moves thatthe Administrative Law Judge (ALJ) preclude any attemptby 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 ofproviding assistance to first responders in theevent ofan aircraft mishap. FACTS Complainant issued aNotice ofProposed Civil Penalty (NOPCP) on May 20, 2012. A Final NOPCP was issued on January 7, 2013 from which Respondent appealed and the Final NOPCP 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 allegedNotice to Pilot In Command (NOPIC) violations (HMR Section 175.33) Complainant discovered during an inspection ofseveral hundred NOPIC's Respondent provided covering a 90 day period. Respondent timely answered the Complaint, raising a number ofaffirmative defenses. This civil penalty is unprecedented. Complainant's witnesses have testified at depositions taken inArlington, Texas on May 17, 2013 thatto their best recollection and knowledge, Complainanthas never sought civil penalties ofthis size for alleged N

### 0PIC violations and, infact, this civil penalty is several times the size ofthe maximum civil penalty that Complainanthas ever sought for aNOPIC violation against any air carrier, large or small. ffJyiR VIOLATIONS ALLEGED: The pertinent sections ofHMR Section 175.33, which Respondent has been charged withviolating, i.e., Sections 175.33(a)(l); (l)(i); and (7), provide: 

### § 175.33 Notification ofpilot-in-command. (a) Except as provided in §175.10, when a hazardous material subjectto the provisions ofthis subchapter is carried in an aircraft, the operator of the aircraft mustprovide thepilot-in-commandwith 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 ofthe aircraft, which specifies at least the following: (I) The proper shipping name, hazard class and identification number ofthe 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 ofthis 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 identificationnumber appearing in: (i) Section 172.101 ofthis subchapter, any additional description requirements provided in §§172.202 and 172.203 ofthis subchapter must also be shown 

### inthe notification. (7) The date ofthe flight; (EmphasisAdded) There is no regulatory requirement that the NOPIC be prepared for anyone other than the pilot in command. There is certainly no regulatory requirement thatthe NOPIC be prepared for or submitted to potential frrst responders in the event ofan aircraft mishap.COMPLAINANTATTEMPTS TO ENFORCE REQUIREMENTS THAT DO NOT EXIST: Although it has notbeen alleged inthe Complaint, as this matter has proceeded

over the past several months ithas become apparentthat Complainant appears to have taken the position that erroneous or incomplete NOPIC information "putsthe lives offirst responders

...atrisk." Please see Declaration ofPaul Klimas, dated June 13, 2013, attachedto Complainant's Motion for Decision, dated June 17,2013. Nowhere in the HMR's is there a requirementthat 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 informationthat

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 thatthe NOPIC, in additionto serving as a notice to the pilot inconnnand, is also to be used for emergency response purposes. Inspector Paul Klimas, Complainant's investigating inspector (and designated by Complainant as one ofits two persons most knowledgeable), admitted this in his depositiontaken 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 onthe same day (Buchanan Depo. 9: 11-19)_2 While first responders may benefit from NOPIC information, there is no regulatory requirement that this information be prepared for them. Under HMR Section 175.33 the only intendedbeneficiary oftheNOPIC information is the pilotin 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 ofits own regulations in Christopher v. SmithKline Beecham Corp. 3 Invoking principles of"fair warning" and "unfair surprise," the Courtheldthat deference does not apply, at least retrospectively, where an agency's "interpretation ofambiguous regulations [would]

1The entire transcript ofMr. Klimas' deposition was previously submitted under cover of Respondent's Transmittal ofExhibits on June 26,2013, as Exhibit F thereto. 2 The entire transcript ofMr. Buchanan's deposition was previously submitted under cover ofRespondent's Transmittal ofExhibits onJune 26, 2013, as Exhibit G thereto. 3No. 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 conductthat occurred well before that interpretation was announced." There has been no regulatory reference, testimony or documents suggesting that Respondent should have known ofa requirement to prepare NOP!Cs for the purpose of advising first responders andthe legal conclusion that a regulatory requirement to do so existed.While the Administrator's interpretation here ofSection 175.33 is not supported in the words ofthe regulation or elsewhere, according the Administrator deferenceto this interpretation ofits ownregulation would result inthe imposition ofmassive retroactive liability in an unprecedented amount. As set forth elsewhere, Complainant has never sought a civil penalty ofthis size for alleged NOPIC violations and, in fact, this civil penalty is several times the size ofthe maximum civil penalty that Complainant has ever sought for aNOPIC violation against any air carrier, large or small. Complainanthas sought and acquired a Protective Order into the "deliberative process involving materials, data, information andtestimony" regarding how Complainant arrived at its civil penalty of$206,550.00. Allowing Complainant to arbitrarily change its interpretation ofSection 175.33 to support such a large penalty would clearly amountto "unfair surprise" 4

4 LongIsland Care atHom Ltd. 

### V. Coke, 551 U.S. 158, 170-71 (2007) 5 FAA Case No. 2011SW700189/FAA DocketNo. 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 requirementthat does not exist nor should Respondent be assessed substantial civil penalties for violating regulatory requirements that do not exist. 5


### CONCLUSION: Forthe reasons stated above, Respondent asks thatthe Administrative Law Judge issue an Order prohibiting: I. Any testimony or other evidence as to the purpose ofthe NOPIC other than those specifically enumerated in HMR Section 175.33; and 2. Preclude the offering orreceipt ofany testimony or other evidence that NOPIC's are required to assist first responders inthe event ofan aircraft mishap. Respondent respectfully requests that this Motion In Limine notbe taken under submission and that a Court Order granting or denying this Motion be made.
Dated this

# J'{~h day ofMay, 2014

5 Itis unreasonable "to require regulatedparties to divine the agency's interpretations in advance or else be held liable whenthe agency announces its interpretations for the first time in an enforcementproceeding." Christopher v. SmithKline Beecham Corp. No. 11- 204 (June 18, 2012). 6 FAA Case No. 2011SW700189/FAA DocketNo. FAA-2013-0040 MARTINAIRE AVIATION, LLC'S MOTION IN LIMINE TO PRECLUDE TESTIMONY THAT HMR SECTION 175.33 HAS BEEN PROMULGATED AND SERVESTO ASSIST FIRST RESPONDERS (MOTION IN LIMINE NO.3)CERTIFICATE OF SERVICE The undersigned hereby certifies that onthis

## ~day ofMay, 2014, atrue and correct copy ofthe foregoing MARTINAIRE AVIATION, LLC'S MOTIONIN LIMINE TO PRECLUDE TESTIMONYTHAT HMR SECTION 175.33 HAS BEEN PROMULGATED AND SERVES TO ASSIST FIRST RESPONDERS (MOTIONINLIMINE NO.3)

was served as follows: The Honorable Richard C. Goodwin Office ofHearings, 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 WrightBuilding- Suite 2Wl000 {FederalExpress} James Archier, Esq. Federal Aviation Administration Office ofthe 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)