11/19/2010 16:23 FAX 2024935142 FAA * OMS 1001/023 

^QfBAMENTOF 

UNllHO STATl-S DEPARIMRNT OF TRANSPOR'rATIO#V:ANSPORTATfON 

FEDERAL AV1ATION ADMlNlSTRATION •' • \cT OPERATIONS 

Tn the Matter of: 

I'ederal Express Corporation 

M NOnS P I4: 21 

FAA Docket No. CP10NM0008 

FAA Case No. 2008NM700208 

DMS No. FAA-2010-0792 

The Honorable Richard C. Goodwin 

FEDERAL EXPRESS'S RESPONSE TO COMPLAINAI S I^S MOTION FOR 

DECISION, OR TN THE ALTERNATJ VR. MOTION FOR SUMMARY 

JUDGMENT HEREAFTER LIMITING THE HEARING TO A 

DETERMINATION AS TO THE APPROPRIATE SANCTION 

COMES NOW the Respondent, Federal Express Corporation, by and through 

counsel, and in response to the Motion for Decision, or in the ahemativc, Motion for 

Summary Judgment hereafter limiiing the hearing to a determination as to the appropriate 

sanction, submits the following: 

Form of Response; 

Tn the case at bar, the (!:oniplainant's Motion is titled in such a way as to indicate 

that the Motion for Decision requested is that the Court rule on all issues, including the 

proposed sanction. In the alternative to that, applying the Complainant's title and 

argument, the Complainant asks that the Court grant Complainant's alternative Motion 

for Summary Judgment hereafter limiting the hearing to a determination as lo the 

appropriate sanction. Based on that phrasing, and the content in the Complainant's 

Motion as a whole, the Respondent will first address the Complainant's prayer for the 

Court to rule on all matters before it, and will then separately address the Complainant's 

prayer that the Court limit any hearing to the issue of sanctions. 

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1. Standard of Law and Argument regarding Complainant's Motion for Decision 

on all issues before the Court including Sanction 

The Complainant's Motion for Decision is governed by 14 C.F.R. § 13.218(f)(5). 

"The Rules say that the administrative law judge shall grant a party's motion for decision 

if the pleadings, depositions, answers to interrogatories, admissions, matters that the 

administrative law judge has officially noticed, or evidence introduced during the hearing 

show that there is no genuine issue of material fact and that the party making the motion 

is entitled to a decision as a matter of law." in the Matter of ABG Caulking Contractors, 

Inc., FAA Docket No. CP05SO0050, 2006 FAA Lexis 493, at *7. 

Pursuant to 14 C.F.R. § 13.224(a), the Complainant must show that the proposed 

civil penalty is appropriate. In the Matter of William A. Lukcr. Jr., 2010 l-AA LEXIS 99, 

FAA Docket No. CP09SW0008, at +14. The FAA has promulgated guidance for 

proposing penalties, but "this Guidance [sic] is not binding on respondents of 

administrative law judges in setting penalties." Td^ Further, in a 2006 case, In the Matter 

of ABG Caulking Contractors, Inc.. the court noted: 

While the Complainant's motion papers purport to show how the FAA 

arrived at the civil penalty it is seeking, the statements of the 

Complainant's lawyers are not evidence, and nothing else supporting the 

question of quantum was submitted with the motion. Tn addition, while 

the motion asserted thai the FAA had performed a weighting analysis, the 

Complainant did not explain how that analysis was performed and did not 

provide supporting factual information for that analysis. Accordingly, 

genuine issues of material fact remain with respect lo the i.ssuc of sanction. 

2006 FAA LEXIS 493 at +13. 

In the case at bar, the Complainant's Motion regarding civil penalty contains only 

statements by Complainant without supporting documentation. The attached affidavits 

do not in any way discuss the weighting analysis, how that analysis was performed, or 

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supporting factual information for the analysis as noted was necessary in ABG CaulkiiiK 

Contractors, Inc. While the Complainant alleges broadly that the proposed penalty is 

within the range cstabli.shed by law, the Complainant gives no description of the specific 

factors or weighing of those factors. The Complainant provides no concrete histoiy of 

prior alleged violations by the Respondent; rather, the Complainant alleged violations 

without providing case numbers or other frames of reference to allow the Respondent to 

either admit or deny the allegations. The Complainant fails to address the aggregate 

weiglit of the violation, the nature, circum.sianccs, extent and gravity of the violation, or 

ihe Respondent's degree of culpability, history of prior offenses, and ability to pay, to 

any extent other than bald assertions by counsel in writing but without the necessary 

dncvimentation or exhibits in support. 

Most importantly, however, a recent decision by the Court ha.s addressed whether 

a complainant may be entitled to a decision without a hearing, when the amount of 

sanction is disputed by a respondent. The Court, when deciding In ihe Matter of Airtran 

Airwavs. Inc., (2010 FAA LEXIS 106 (FAA 2010), the coun noted: 

The Complainant's motion papers purport to show that the amount 

of the penalty it has sought was calculated in accordance with FAA Order 

2150.3B, effective October 1, 2007. The FAA points out that Order 

2150.3B f*3J contains guidance on the matter of sanctions for use by 

I'AA employees involved in the investigation and prosecution of 

enforcement cases. It also notes that in Folsom's Air Service. Inc.. FAA 

Order No 2008-11 (November 6, 2008), the Administrator held that Order 

No. 2150,3B reflects the Administrator's general views about the civil 

penalty ranges that are appropriate for different types of violations. 

True as that may be, it remains clear that administrative law judges arc not 

bound by the contents of Order 2150.3D, nl and thai the Re-spondent is 

entitled to a hearing on the question whether $ 15,000 or some lesser sum 

is the appropriate sanction for the violation it committed. Ihis means that 

there arc disputed issues of material fact that must be plumbed in order to 

arrive at the appropriate sanction. It follows that, although the FAA's 

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motion to limit the hearing to the issue of sanctions must be granted, there 

remains an issue of the appropriate sanction that can be decided only after 

the hearing on that issue is held. 

Therefore, it is clear that, while the Court clearly has the autliority to 

determine whether the Complainant may have the hearing in this case limited to 

the issue of sanctions, the matter of the Complainant asking for a decision on 

whether the sanctions proposed by the Complainant are appropriate without a 

hearing must not, respectfully, be granted over the protest of the Respondent. 

For further consideration of thi.*! Court, ihc Respondent respectfully 

submits that the penalty amount of $299,900 is excessive and unreasonable, 

despite the Complainant's bold assertion in the Motion that the amount ''should be 

considered more than reasonable." This was demonstrated by the Complainant's 

own initial penalty of only $86,700 for the exact same violations, noted in the 

original Notice of Proposed Civil Penalty i.ssued a year before the Amended 

Notice, which increased the fine more than threefold without the addition of new 

allegations or explanation whatsoever. It is repeated at the beginning of each 

Inlbnnai Conference held by the Complainant that any exchange in the Informal 

Conference will not be used against the other party (with the exception of 

impeachment purposes). However, the only contact between the parties from ihc 

time of the original Notice with a proposed penalty of $86,700 and the time of the 

Amended Notice with a proposed penalty of $299,900 was, in fact, the Informal 

Conlerence. The sudden and unexplained increase in proposed penalty in and of 

itself smacks of bad faith and ambush, and Justice demands a hearing on such an 

issue to determine what factors which w/crc unknown at the time of the Notice 

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warranted such a marked increase over one year later. The Respondent deserves 

the opportunity, additionally, to utilize the discovery methods allowed by law, 

during the time allowed in the Procedunil Order of this Honorable Court, to 

prepare an argument and defense regarding the amount of civil penalty, including 

mitigating factors and weighting arguments that arc essential to the issue of 

sanctions. 

II. Standard of Laiv and Argument regarding Alternative Motion 

for Summary Judgment hereafter limiting the hearing 

to a determination as to the appropriate sanction 

The Respondent agrees that no genuine issue as to material fact exists in this 

matter as to the violations alleged in this case, and that the hearing on this matter .should 

be limited to a determination as to the appropriate sanction. Jhe Respondent docs 

contend, however, that the facts in this ease will necessarily be relevant in a hearing to 

determine the appropriate sanction, and that such facts, testimony and exhibits as 

necessary to thai consideration should be allowed. Ihe gravity of the violations will 

clearly be a primary consideration in the case and therefore, such facts will be admissible 

and relevant. 

Conclusion 

Primarily, applicable decisions by the Court indicate that a Motion for Decision is 

not appropriate in a case when the sanction amount is disputed, and that a hearing should 

be held on the issue of sanctions. In addition, this ease is still within the discovery time 

allowed by the Court's Procedural Order. To move for a judgment without first allowing 

reasonable time for discovery renders this Motion for Decision premature. However, the 

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Respondent agrees that the case is appropriate for a judgment on the violations and has 

never disputed such, even in its Answer to the Complaint. 

WHEREFORE, the Re.spondent prays that the Complainant's Motion for Decision 

be denied, as a genuine issue as to material fact - regarding the amount of sanctions to be 

imposed - exists; and the Respondent requests a trial on the issues raised. Further, ihe 

Respondent agrees that the case is appropriate for a Summary ,Tudgnient limited to the 

issue of the violations alleged, while rcsei-ving the right to put on proof at a hearing on 

sanctions regarding the nature and gravity of the violations, as well as other relevant 

information to be considered by the Court. 

Respectfully submitted this 18th day of November, 2010. 

HT.DRRAkEXEftfiSSXQRPORATION 

CynthiaChandler-Snell 

Senior Attorney 

Federal Express Coiporation 

3620 Hacks Cross Road 

Building B, 3"^ Floor 

Memphis, TN 38125 

(901)434-8361 

(901)434-8283 Fax 

Page 6 of 7 
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I hereby certify that the foregoing 

0007/023 

CERTIFICATE OF SERVICE 

has been sent via Priority Overnight (and fax to 

FAA Counsel and Judge's Office) on thi i, the 18'" day of November, 20) 0 to 

Federal Aviation Administration 

800 Independence Avenue, SW 

Wilbur Wright Building, Suite 2W1000 

Washington, DC 20591 

Attn: Hearing Docket Clerk, AGC-430 

Scott Morris, Attorney 

Office of the Regional Counsel, Northwjjst Mountain Region 

Federal Aviation Administration 

1601 LindAve., SW 

Renton, WA 98057 

Fax 425-227-1007 

The Honorable Richard C. Goodwin 

Administrative Law .Tudgc 

Office of Hearings, M-20 

US Dcpaitment of Transportation 

1200 New Jersey Ave. SE 

Last Building Ground Moor, Room E12 -320 

Washington, DC 20590 

Fax 202-366-7536 

pnmiaChandler-Snel 

Senior Attorney 

Federal Express Corporation 

3620 Hacks Cross Road 

r<l Building B,3'M'looT 

Memphis, TN 38125 

(901)434-8361 

(901)434-8283 FAX 

IS32(.31 

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Page 1 

LexisNexis' 

LF.XSF.E 2 )06 FAA LLXi.S 49r, 

In ihe Matter of At 0 Caulking Contraclors, liic. 

FAA Dod et No. CP05SO0050 

Civil Penally Actioi ; DMS No. FAA-2005-22888 

tJNlIDl^ STATES DEPA^TMEN'I OF TRANSPORTATION 

FEDliRAl. AVIA 

OII'IC 

1 ION ADMINISTRATION 

-. OF HEARINGS 

2006 

ACTION: I'lJ AOMTNTSTRATiVE LAW JUDGE' 

FOR Dl-CJSION ON THE PLEADINGS OR, TN THE 

ONLY 

1 ORDER RULING ON TTTE COMPLAINANT'S MOTION 

ALTERNATJVl:. MOTION FOR HEARING ON SANC'JiON 

ISSUEDBY: Isaac D. itenkin. Administrative l^w Jii Ige 

OPINION: 

On January 13, 2006, the Federal Aviation Adminis 

spondent, ARG Caulking Contraciors, Inc., requcslir^ 

for violaLiuns of the Department's llaTardous Material 

requested a hearing on Augu-sl 10, 2005, and I was asstsncd 

February 7,2006. 

Pending before me is the Complainant's motion U 

hearing to the question of Sanction; it wa.s filed by 

of the complaint and answer and various other materii 

a letter fi'om the Respondent to the Complainant datec 

the Respondent's responses to those requests. The attachments 

position. 

FAA LEXJS493 

ily 12,2006 

straltion (I'AA or Complainant) issued a complaint against the Rca $ 60,000 civil penalty be assessed against the Respondent 

Regulations (FIMR), 49 C.F.R. Parts 171-180. The Respondent 

to the proceeding, vice Chief Judge Yoder. by Notice dated 

ig that: 

f a decision on the pleadings or, in the alternative, to limit the 

the!Complainant on June 7,2006. Attached to the motion is a copy 

Is, including thirty-two (32) photograph.s of the subject shipment, 

November 14,2000, the Complainant's discovery requests and 

[*1] convert the motion into a motion for summary disThe Respondent filed its answer to the motion on 

side of the pleadings, the Respondent argued thai it ht d 

fact concerning the amount of the civil penally." Basep 

held, as scheduled, so that it could obtain a reduction 

The Pleadings 

In its complaint, the FAA alleged that the 

fering a one-gallon (3,79T.) metal container of" 

to United Parcel Service (UPS) for transportation by i 

proper shipping papers, certification, marking.s 

failed to ensure that each of its ha/mat employees w 

nl ihese failures, the complaint alleged, 

172.202(a)(l)-(5.), 172.301(a), 172.300(a) and 

.Tune 21,2006. In the answer, which also contained materials out-

'• presented substantial evidence of a genuine issue of material 

on this evidence, the Respondent said that A hearing siiould be 

n the civil penalty sought by the FAA. 

Respondent had violated the HMR on or about October 30, 2000, by ofTrem( o Deckline Primer" (hereinafter "primer"), a hazardous material, 

i ir to Columbia, Kentucky when the shipment did not include the 

emergency response infonmaliori, and packaging and the Respondent 

; properly trained, nl 

:onstiiuted violations of 49 C.F.R. §<{ 171.2(a), 172.200(a) and 

172.3 I2(HX 172.400(a), 172.600(c), and 173.1(b). 
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Page 2 

2006 I'AA LEXIS 493, * 

r*3] 

In its answer to the complaint, the Respondent denied knowing that the primer was a hazardou.s materia) and seated 

that it does not regularly ship hazardous material.s and therefore does not have any "hazmat employees." The Respondent admitted the remaining allegations of the complaint. 

On January 27,2006, the Complainant seived on the Re.spondent various discovery requests. In its response, served 

February 23, 2000, the Respondent admitted that the 32 photographs the Complainant later filed in support of the pending motion truly and accurately depict the subject shipmem, that it (Le, the Respondent) did not prepare a shipper's certification, declaration of dangerous goods, or other shipping papers, or mark or label the box as containing a flammable 

liquid. The Respondent also conceded that it did not provide emergency response information or a telephone number 

vrith the shipment. The Respondent also said that the box was marked "corrosive" and denied that it did no( mark the 

shipment with the standard orientation markiiig-'i, as required under the HMR. 

Tn its motion tor summary disposition, the Complainant takes issue with the Respondent's denial that il posse.s.scd 

the requisite ['^l mens_rca^ According to the Complainant: 

The Respondent denied knowing that the contents of the shipment were hazardous despite the fact that the ph<itographs of the shipment clearly indicates [aic] that the label on the "Trenico Deckline Primer" has several hazardous 

warnings and the Material Safety Data Sheet includes tran.sportaiion requirements for traiisportaiion by air. The Re-

-•ipondent also denied tliat it failed to include orientation markings on the shipment. However, Respondent has admitted 

that the photographs of the subject shipment accurately depict the shipmc~nt in question. Specifically, photographs 2a-2d 

.show that the UPS shipping label was applied to kraft paper which covered the markings on the fiberboard box and obscured all labels and markings on the box. Additionally, Re.spondent admits in its letter dated November 14,2000, that 

one of its employees wrapped the box to cover any addresses or tracking iiurobeis that may have been on the box used 

for Ihe shipment. 

(I'ootnotes omitted.) 

The Complainant's motion also explains how it deiennined its proposed eivji penalty amount. By usin& the FAA's 

internal sanction guidance, the Complainant says, it assigned a maximum final [*5j aggregate weight to the case and 

determined that the Re.spondent was a Caiegoi7 C violator (i.e^ a business entity that uses or handles hazardous materials in the course of its busines.s); and that the allegations amount to a Category II olTense (i.e., oHermg for transportation 

an undeclared shipment within hazardou.s materials quantity limitations). The Complainant then determined that the 

Kespondcni violated reguJation."! under the following six (6) offense subcategories: shipping papers, labeling, marking, 

packaging, training, and emergency response. According to the Complainant, it proposed a $ 60,000 civil penally, since 

a $ 10,000 civil penalty is applicable to each of the 6 offense subcategories when the proceeding includes a maximum 

aggregate weight and when a Category II violation is committed by a Cateftoiy C violator. 

The Respondent's response to the subject motion is limited to the issue of sanction. According to the Respondent; 

Contrary to Complainant's motion, a review of the materials on file demonstrates that there is a genuine issue of 

material fact in dispute as to the amount of the civil penalty, . -. Although Compiainant'.s motion states that a "weighting 

analy.sis [*6] was performed" regarding the civil penalty, it has offered no factual materials supporting that statement,. 

.. On the contrary, AUG can show that the [statutorily required] penalty con.siderations support a civil penalty far lower 

than $ 60,000, 

The Ke.tipondent says, and proffers an affidavit by its secretary/treasurer asserting, that il is u first-time violator and 

that after the alleged violations occurred, it instituted a policy prohibiting the shipment of hazardous materials and had 

its aj>sistanr vice president complete a hazardous marerials training course in conformity with 49 C.F.R. § / 72.204. The 

Respondent also says that at the hearing it can show substantial evidence justifying a lower civil penalty amount, including evidence proving that it was not a manufacturer of the primer at issue and that it does not regularly handle or ship 

hazardous materials in the course of its business. 

The Cri teria for Granting SummaryJudgment 

It is well-seicled that, notwithstanding the Respondent's request for a hearing, the Department is not required to 

provide a hearing if there are no disputed material issues of fact. See, e.g.. Petinimlvania v. Rilav. 84 r.3d 125. 130 (SJ 

Cir. 1996). ['7| An evidentiary hearing before an administrative law Judge need not be conducted if all material issues 
11/19/2010 16:25 FAX 2024935142 FAA . QMS iOIO/02 3 

Page 3 

2006lAA T.HXIS493, * 

of fact can be adequately resolved on the basis of the written record before the agency. See Knott v. FERC. 3H61.3d 

368 (hi Cir. 2004): Delta Air Lines v. Denarimenl ofTramporiaxion. 511'Jd 1065 (D.C Cir. 1995). 

Under the Rules olPracilce governing this proceeding, a party may make a motion lor deci.sion regarding all or any 

pan of the proceedings at any time before the adniinistrative law Judge has issued an initial decision in the proceedings. 

14 C.F.R. S 13.218(fX5). The Rules say that the administrative law judge shall grant a party's motion for decision ifilie 

pleadings, depositions, answers to interrogatories, admissions, matters that the administrative law Judge has olTicially 

noticed, or evidence introduced during the hearing show that there is no genuine issue of material fact and that the party 

making the motion is entitled to a decision as a matter of law, Jd. The party making the motion for decision has the burden of .showing dial there is no genuine and disputed issue of material fact. UL 

Motions [*8) for decision, when accompanied by materials dehors the pleadings are analogous to motions for 

summary Judgment under Rule 56 of the federal Rules of Civil Procedure (FRCP). See, e.g.. Horizon Air Industries. 

Tne.. FAA Order No. 96-24, at 6 n.3 (Aug. 13, 1996). The standard for deciding a summary judgment motion luider the 

FRCP is governed by the Supreme Court's opinion in Celoiex Core, v. Carrett. 477 U.S. 317. 106 S. Ci. 254S. 91 

L.Ed.2d265 (I9S6): 

In our view, ihe plain language of Rule 56(c) mandates the entry of summary judgment, aflcr adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element 

essential to that party's ease, and on which that party will bear the burden of proof at trial. In such a situation, there can 

be no "genuine issue as to any material fact," since a complete foilure of proof concerning an essenlia! element of the 

noninoving party's case necessarily renders all other facts Immaterial. 

On a motion for suminaiy judgment, all evidence and inferences are to be viewed in light most (avorable to nonmoving party; however, l*9J a nonmoving party may not rest upon mere denials or allegations in pleadings, but must 

set forth specific facts sufficient to raise genuine issue for trial. See, e.e.. Ciriren.^ Siate Bank vfBie Lake v Transamariax In.-;. Co.. 615 F.Siipp. 309 {D.Minn. 1993). 

Analvsis and Conclusions 

With a single limited exception, I find that there are no genuine di.sputcd issues of material fact relating to the Respondent's liability under the HMR as alleged in the complaint. As ihe Respondent has conceded in its answer to the 

complaint and admissions in response to the Complainant's discovery requests, 1 find that on or about October 30, 2000, 

the Respondent offered the primer to UPS for domestic transportation by air without including the proper shipping papers, certification, markings, emergency response information and packaging. I'unhcr, the Respondent admitted in its 

answer that it violated ten (10) of the eleven (11) regulations listed in the complaint. 

In its answer, the Respondent denied knowing that the shipped material was hazardous. As a inatter of law, however, whether the Respondent knew at the time of the shipment that the material wa.s hazardous is [* 101 of no consequence. The governing stature, 49 U.S.C. .f 5123, subjects any person to a civil penalty who has "knowingly committed 

an act which is a violation .... " The statute contains a definition of the term "knowingly;" it means that a person has 

actual knowledge of the facts giving rise to the violation. See 49 U.S.C. § 5/2J(a)(l), Knowledge of the law is unnecessary. Respondents are liable even if they did not know they were breaking the law. See Riverdale Mills Corp.. FAA 

Order No. 2003-10, p. 5 (Sept. 12, 2003); Scott iLSmallitm. FAA Order No. 94-31, p. 7 (Oct. 5, 1994). Congress Litended to prevent individuals trom relying on ignorance of the law as an excuse in civil-penalty ha7.ardous materials 

cases. See Scott H. Smalling, at 7. The legislative history of the Hazardous Materials Iran.sportwtion Act stales that "a 

civil penalty may be imposed only upon proof that the defendant knowingly committed the act which constitutes the 

violation (;'/ /.c not necexi;ary to sho\^ that /;c kn&y^> the act comlitttted a violarion) .. . ." (Emphasis supplied.) S. Conf. 

Rep. No. 1347, 93rd Cong,. 2nd Sess., ["^11] reprinted in 1974 U.S. Code Cong. &. Ad. News 7669, 7686: see also TCI 

Corporation, FAA Order No. 92-77, pp. 8-9 n.l3 (Dec. 22. 1992), 

The Respondent has admitted (hat the primer at issue is a hazardous material, listed under the HMR as Coating Solution, in Hazard Class 3, Packing Group III. As such, il has an a.ssigned identification number of UN1139 and must be 

property labeled as "FLAMMABLE LIQUID." Since the Respondent offered a haz^ardoua material for transportation by 

air, knowing that it was indeed a primer, the Respondent was required to do so in accordance with the IIMR. 

The Respondent denied in its response to the Complainant's discovery request that it did not mark the sliipment 

with the standard orientation markings. However, il also admined that the photogjaphs proffered by the Complainant, 

including those identified as Exhibits I (2a-2d), which show that the UPS shippmg label was applied to kraft paper covering the .shipment box's markings and labels, truly and accurately depict the subject shipment. In its response to the 
11/19/2010 16:25 FAX 2024935142 FAA * DMS 21011/023 

Page 4 

2006 FAA LEXIS 493, * 

pending motion, the Respondent made no effonto explain this discrepancy or otherwise to defend itself against the allegation that it did not f*]2] property mark the shipment. 

13eeau.se the Respondent has submitted nodiing to rebut the evidence or the inferences the Complainant would have 

me draw from it, there is nothing of record to contradict the Complainant's version of the facts. Hence, 1 find, as 1 must, 

that the Respondent violated 49 C.F.R. ^ff 172.300(a) and 172.312(a), which require that each non-bulk combination 

package having inner paekagiiigs containing liquid ha2ardous materials must be legibly marked with package orientation markings on two opposite vertical sides of the package with the arrows poijiting in the correct upright direction. 

The FAA's complaint alleges that the Respondent offered the .shipment for transportation by air when it failed to 

ensure that each of its hazmat employees was properly trained, and that it violated 49 C.F.R. § 173.1(b) in that it olTered 

a the .shipment and failed to obey iLs duty to instruct each of its otllcers, agents, and employees having responsibility for 

preparing hazardous materials for shipment as to the applicable IIMR. To those allegations, the Respondent said in its 

answer that it does not regularly ship hazardous materials and therefore does not have any "haiinat employees." [* 13 j 

1 he pending motion and the Respondent's response to that motion do not mention the charge that the Respondent 

violated the HMR training requirements. Accordingly, there is no basis for me to grant a motion for summaiy dispo.sition ofihat charge. The issue of whctlier the Respondent violated the HMR training requirements must, therefore, be 

reserved for the hearing. 

The issue of sanction will also be reserved for ihe hearing. The Complainant's motion did not satisfy its burden of 

proof concerning the amount of the civil penalty to be imposed on the Respondent. While the Complainant's motion 

papeiTi purport to show how the FAA arrived at the civil penalty it is seeking, the statements of the Complainant's lawyers are not evidence, and nothing else .supporting the question of quantum was submitted with the motion, In addition, 

while the motion asserted that ihe FAA had performed a weighting analysis, the Complainant did not explain how that 

analysis was performed and did not provide supporting factual information for that analysis. Accordingly, genuine issues of material fact remain with respect to the issue of sanction. 

Accordingly, 1 partially grant and partially deny the Complainant's [*I4] motion. 

I hereby find and determine that the Respondent is liable for violating 49 C.F.R. Jfii 171.2(a), 172.200(a) and 

l72.202(a)(l)-(5), 172.301(a), 172.300(a) and 172.312(a), 172.400(a), and 172.600(c). The hearing, now scheduled to 

take place on July 26, 2006, will be limited to the issue of the Respondent's liability under 49 C.F.R. § 173.1(b) and to 

the issue of sanction. 

IT IS SO ORDERED. 

Legal Topics: 

Foi' related research and practice materials, see the following legal topics: 

Civil ProcedureSummary JudgmentHcaringsRequesls for HearingsEnviromnental LawHazardous Wastes & Toxic SubstancesTrau-sportationTransportalion LawCarricr DLitie.s & T.iabilitiesllazardous Materials 
I __ n/19/201 0 16:25 FAX 2024935142 FAA + DMS @|012/023 

Page I 

<E> 

LexisNexis' 

LEXSEE 2010 FAA LEXIS 99 

In the Matter of William A. Luker, Jr. 

1'AA Docket No. CP09SW0008 

Civil Penalty Aaion; DMS No. FAA-2009-1044 

LJNITED S I'ATES DEPARTMEN lOF TRANSPORTAI'ION 

FEDERAL AVIA I'lON ADMINISTRATION 

OiriCE OF HEARINGS 

2010 FAA LEXIS 99 

May 13,2010 

ACTION: I'll ORDEROI' CTITF.F ADMINISTRAlTVF. LAW lUDGE RONNIE A, YODER GRANTING COMPLATNANTS MOTION FOR SUMMARY JUDGMENT 

ISSUEDUV: Ronnie A. Yoder, Chief Administrative Law Judge 

OPINION: 

This proceeding arises from a Complaint served November 5,2009, in which the Federal Aviation Administration 

("FAA") Regional Counsel, Southwest Region ("Complainant"), alleges a violation of the Department of Transportation 

("DOT") Hazardous Materials Regulations ('TTMR"), and a Request for Hearmg by William A. Luker Jr. ("Respondent"), received on October 27,2009. n I The undersigned administrative law judge was a.ssigned to this proceeding by 

Notice of Assignment of Proceeding, served January 5, 2010, and ordered parties to file any amended complaint or answer, on or before February 5, 2010. n2 

nl Complainant Counsel's Letter to Hcaiing Docket (Nov. 5, 2009), According to the Complaint, Complainant's Final Notice of Propo.sed Civil Penalty was served October 16, 2O09. 

n2 Order of the Chief Administrative Law Judge ar 2 (.Tan. 5,2010). 

by "Complainant's Motion \*1\ for Summary Judgment" ("Motion"), served January 4, 2010, Complainant moves 

for decision in this proceeding pursuant to 14 C.i'.R. § 1.3.218(f)(5), arguing that there remains no genuine issue of material fact that requires a hearing and Complainant is entitled to judgment as a matter of law. n3 Respondent filed no 

answer to the Complaint or the Motion. For the reasons set forth below, I grant the Motion, find Respondent in violation 

as alleged and assess a civil penalty of S 500. 

n3 Motion at 1. 

T. BACKGROUND 

The Complaint alleges Respondent knowingly violated the HMR, 49 C.F.R, § 171.2(e). n4 in that Respondent "off'er[edj hazardous material for transportation in commerce within the United States when the material was not properly 

classed, described, packaged, marked, labeled, and in the condition for shipment required by the Hazardous Material 

Regulations." n5 
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2010FAAI.EXTS99,'* 

n4 Complaint III, at 2 (Nov. 5, 2009). 

n5 Id. 

[*3] 

First, Complainant alleges that on April 19,2009, Re.spondent, knowingly offered checked baggage to American 

Airlines at Dallas/Foil Worth Tntemational Airport, Texas, that c<)nlained hazardous materials for transporliilion on 

American Airlines flight number 2404 lo Baltimore, Maryland. n6 Complainant alleges that the Transportation Security 

Administnition ("TSA") screened Respondent'.s baggage and discovered a caiiisicr of Colcmaai propane fuel, a canister 

of butane fuel, and a torch ligliter. n7 

n6 Id. para I. at 1. 

n7 /(/. para 2, at I. 

Complainant supports tliese allegations with an American Airlines Undeclared Dangerous Goods Discrepancy Report, n8 Material Safety Data Sheets ("MSDS") for each hazardous material, nO and an email, dated May 15, 2009, from 

Respondent to Paul Klimas, nlO I'AA Hazardous Material.s Special Agent, Southwest Region, who investigated the 

matter, nl 1 The email states: 

"In my haste to catch the plane, I threw the propane and butane cylinders in my duflfel bag, completely 

forgetting L'*4J at diat moment that they were substances that could not he hansported on a plane. After 1 

was in the security line, one of the baggage inspectors approached inc and pointed out that he had found 

those items in my duffel, and would have to confiscate them, unless there was someone at the airpon 

who could lake them back to my home. 1 said no, apologized for the MISTAKE, made in HASTE, and 

went on about my business." n 12 

Second, Complainant alleges that the baggage was not marked with applicable identification markings oi' labels that 

would indicate the baggage contained hazardous materials, accompanied by a "Shipper's Certification or Declaration of 

Dangerous Goods," or accompanied by shipping papers that described tlie hazardous material and provided emergency 

response information, including a 24-hour emergency response telephone number. nl3 Last, Complainant alleges that 

Respondent offered the hazardous materials for air transportation without appropriately marking and labeling the outer 

container label and failed to declare the shipment. nl4 

n8 Motion Ex. 2. 

n9 Motion Ex. 5-7. The MSDS for the Coleman propane fuel canister and butane lighter provide the DOT 

shipping names, "Liquefied Petroleum Gas," Motion Ex. 5, at 5; and "Lighters, conlaiuing flammable ga.i." Molion Ex. 7, at 3 (emphasis in original). 

1*5] 

nIO Motion Ex. 3. 

nl I Motion Ex, 9. 

nl2 Motion Ex. 3, 

nl.i Complaint paras, 3-5, at 1. 

nl4W. paras. 9-10, at 2. 

II. DISCUSSION 

A. Summary Judgtncm Standard and Analy.sis. 
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2010 FAA LEXIS 99, • 

A motion for decision may be granted "if the pleadings, depositions, answers to inteirogatories, admissions, matters 

that the administrative law judge has officially noticed, or evidence introduced during the hearing show that there is no 

genuine issue of material fact and that the party making the motion is entitled to a decision as a matter of law." nl 5 The 

movant "ha.s the burden of showing that there is no genuine i.s.sue of material fact disputed by the panics." n 16 

nl5 14 C.F.R. § 13.218(f)(5) (2009). 

nl(> Ibid 

Amotion for decision under I4C.F.R. § 13.218(f)(5) is comparable to amotion for summary judgment under Rule 

56(c) of the Federal Rules of Civil Pi-ocedure ("FRCP"). nl7 fhe standard for deciding a summary judgment [*6] motion under the l'"RCP is governed by the Supreme Court's opinion in Cclntex Corp. v. Cairett. 477 U.S. 317 (19H6): 

"In our view the plain language of Rule 56(c) mandates the enfry of summaiy judgment, al\er adequate 

lime for di.seovcry and upon motion, against a party who fails to make a showing .sulllclent to establish 

the existence of an element essential to that party's ca.sc, and on which thai party will bear the burden of 

proof at trial, in such a situation, there can be "no genuine issue as to any material fact," since a complete 

failure of proof concerning an essential element of the nonmoving party's case necessarily renders all 

other facts immaterial." Id. at 322-23. 

On a motion for summary judgment, all evidence and inferences are to he viewed in the light most favorable to the 

nonmoving party. nl8 However, "if the moving party's documentary presentation demonstrates that its vei"sion of the 

facts entitles it to judgment as a matter oClaw, the Culotac rule requires the party opposing the motion to come forward 

with documents (other than the pleadings) supporting a version of the facts that would preclude ['•'7] the grant of summary judgment." nl 9 

n 17 See, e.g., Horizon Air Indus., Inc., FAA Order No. 1996-24, at 6 n.3 (Aug. 13, 1996). 

T\\SSee, e.g., Ventura Air Serva., /wc, FAA Docket No. CP07EA2005, FDMS No, FAA-2007-27540, Administrative Law Judge's Order Granting Motion for Decision, at 6 (July 24,2007). 

nl9 Wikox Trucking. Inc., Docket No. FMCSA-2001-9596, Administrative Law Jtidge's Decision and Order Granting Motion for Summary Judgment, at 4 (July 27,2007). 

Complainant alleges thai Respondent offered a canister of propane, a canister of butane ftiel, and a torch lighter for 

air transportation without declaring the contents, marking and labeling the baggage, or accompanying the baggage with 

the appropriate certification, declaration, o!" required papers. n20 Complainant alleges thai Respondent's actions constituted a violation of § 171,2(e) of the TTMR, prohibiting any person from "offer[ing]... a haziirdous material for transportation in commerce unless the hazardous material is properly classed, ["'SJ described, packaged, marked, labeled, 

and in condition for shipment a.s required or authorized by applicable rcquiremenLs of fthe HMR].... " n21 

n20 See .nipra notes 6, 7, 13, and 14 and accompanying text. 

n21 49 C.F.R. § 171.2(c). 

The HMR define "hazardous material" to include "materials designated as hazardous in the Hazardou.s Materials 

Table [49 C.F.R. § 172.101). n22 Complainant supports the a.s.scrtion that Respondent offered the items fortran.sportation in conmierce and that such items were hazardous materials under the HMR Hazardous Materials Table with the 

American Airlines' Undeclared Dangcrou.? Goods Discrepancy Report, Respondent's email, and the MSDS sheets. n2j 

n22 49 C.F.R. § 171.8. 
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2010 FAA LEXIS 99, * 

n23 Motion Ex. 2-3, 5-7. See 49 C.f.R. § 172.101, at 154 ("Butane, see also Petroleum gase.s, liquefied"), 

207 ("T-ighters containing flammable Ra.<!"), 243 ("Propane .see also Petroleum gases, liquefied") (emphasis in 

original). 

[*9] 

Pursuant to 49 C.F.R. § 171.1 (g) and 49 U.S.C. § 5123, a person must "knowingly" violate the HMR to be liable for 

a civil penalty. Tlie stature requires that the alleged violator must have known the "facts giving rise to the violarion." 

n24 Knowledge of the law is unnecessary, and alleged violators are liable even if ihey did not know they wore breaking 

the law. n25 In Scoff H. Smalling, the Administrator rejected Smalling's argument that he did not violate the HMR 

"knowingly." n26 'Iliough he claimed "he did not know that firecrackers were hazardous material.s," n27 Smalling 

''readily admined that he had actual knowledge of the faas giving rise to the violation--/. <?., that he placed fireworks in 

his suitcase, and that he checked his bag with the airline." n28 Though Respondent asserted in his email n29 that he had 

"completely lorfgorten] at that moment that they were substances that could not be transported on a plane." n30 he conceded actual knowledge in that he "threw the propane and butane cylinders in [hisj duffel bag." n31 Thus, C^omplainant 

has shown that Respondent had actual knowledge of the facts giving rise to the violation—that [*1 Oj he placed the hazardous materials in his baggage and checked that baggage with American Airlines. n32 Complainant has also shown 

that, at .some earlier time before he packed the bag, Respondent knew that those "sub-stances .. . could not be transported on a plane." n33 

n24 49 U.S.C. ^5123(!i)(\)iA). 

n25 See liiverdale Milh Corp., FAA Order No. 2003-10, at 5 (Sept. 12, 2003) (citing Sco» II. Smalling, 

FAA Order No. 1994-31, at 7 (Oct. 5, 1994)). 

n26 Smalling, FAA Order No. 1994-31, at 7. 

n27 hi. at 5. 

n28 Id. at 7, 

n29 See supra note 10 and accompanying text. 

n30 See supra note 12 and accompanying text. 

n31 Id 

n32 See .^upra notes 8 and 12 and accompanying text. 

n33 See.iupru note 12 and accompanying text. 

Under Procedural Rule 13,209(1), a failure to file an answer to a complaint "whhout good cause" is ''deemed an 

admission of the truth of each allegation contained in the complaint." n34 In addition, "any [*\\\ party may file an answer" to a motion, "with affidavits or other evidence in support of the answer, nol later than 10 days aflcr service of a 

wiiLten motion onthatpany." n35 

n34 14 C.F.R, § 13.209(f). 

n35 I4C.F.R.?? 13.218(d). 

Respondent failed to take advantage of the two opportunities to challenge Complainant's allegations. Pursuant to 14 

C.F.R § 13,209(f), Respondent admitted the truth of each allegation in the Complaint by failing to file an answer. Second, Respondent failed to respond to. or come forward with evidence opposing, the Motion that would support a version 

of facts precluding summary Judgment. Llecau.se Respondent submiiied nothing to rebut the evidence or the inferences 

to be drawn from it, nothing in the record contradicts the Complainant's version of the facts. Therefore, I find tliat Respondent violated 49 C.F.R, § 171.2(e). 
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Page 5 

20101AAT,EXIS99, * 

Upon Respondent's admissions and failure to oppose Complauiant's supported motion for summary judgment. 

Complainant established the absence of a genuine issue of material [*12] fact and is entitled to a judgment as a matter 

of law ad to this violation. 

B. Civil Punaliy. 

Complainant requests a penalty of $ 500 n36 —a request that, like the rest of the Complaint and Motion, remains 

uncontested. 

n36 Complaint at 3; Motion at 11. Complainant states that the Notice of Proposed Civil Penalty that was issued proposed a civil penalty amount of S 500. Motion at 8. 

/. Determining the Statutory Maximwn Fenali)'. 

Complainant asserts that "Respondent is liable for a civil penalty of not less than $ 250 . ., nor greater than $ 

50,000 .. . for each violation of the Federal hazardous materials transportation law .. . and for each violation of the 

[DOT HMRJ." n37 

n37 Motion al 8. 

The statute permits civil penalties for violations of the ITMR in the range of at least $ 250, but not more than $ 

50,000, for each violation, n38 When determining f'* 13] the amount of civil penalty, the following must be considered: 

"(1) the nature, circumstances, extent, and gravity of the violation; (2) with respect to the violator, the degree of culpability, any history of prior violations, the ability to pay, and any effect on the ability to continue to do business; and (3) 

other matters that justice requires." n39 

n38^S'(;.i-.C, ^5/2J(a). 

n39 49 U.SC § 5123(c). See also 14 C.F.R. J} 13,16(c), listing the same factors. 

2. Appropriaie Penalty. l-'AA Gtddelines and Application. 

Complainant a-sserts that the civil penalty is appropriate for the violation, as the violation constituted a "safety 

threat whose magnitude is unknown" n40 and the sanction was assessed in accordance with FAA .sanction guidance and 

is warranted by precedent. n41 

n40 Motion at 8, 9, 

n4l Ibid 

[*I4J 

Pursuant to Procedural Rules, 14 C.F.R. § 13.224(a), Complainant must show the proposed civil penalty is appropriate. n42 The FAA promulgated Guidance for proposing civil penalties for hazardous materials violations that incorporate the statutory and HMR criteria. n43 First, the FAA considers various aggravating and mitigating circumstances 

related to the statutory penalty factors and assigns an "aggregate weight" (maxirnun), moderate, minimum). n44 Second, 

a "Matrix" n45 establishes a penalty range based on the type of violator and the type of violation, which is then modified by the "aggregate weight" to determine a recommended penalty for each "violation group." n46 Fast, adjustments 

are made for the violator's ability to pay and for corrective actions, n47 This Guidance is not binding on respondents or 

administrative law judges in setting penalties, n48 

n42 See. David G. Stout, FAA Order No. 1998-12, at 12 (June 11, 1998) ("Complainant bore the burden of 

establishing not only the violations, but also the appropriaie sanction amount") (citing Toyota Motor Sales, FAA 

Order No. 1994-28, al 6-7 (Sept. 30, 1994)). 
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2010 FAA LEXIS 99, * 

[*I5] 

n43 See Motion Ex. 8, at C-2. Exhibit 8 is an extract, consisting of the Cover Letter, page xv, and Appendix 

C, Sanction Guidance-Hazardous Materials Enforcement (pages C-1 through C-17) of FAA Order 2150.3B, 

FAA Compliance and Enforcement Program (Oct. 1, 2007) [hereinafter "GuidancC'l. 

n44 Guidance paras. 6, at C-4; 8.a., at C-5. 

n45 Guidance fig. C-1, at C-12. 

n46 Guidance para, 6.c, at C-4, 

n47 Guidance para. 6.d, at C-4~C-5, 

n48 EricSalddo, FAA Docket No. CP08SO0003, FDMS No. FAA-2008-0234, Initial Decision of the Administrative Law Judge, at 6-7 & n. 1 (Aug. 1, 2008); Srebbins Aviation, FAA Docket No. CP00SW0014, l-DMS 

No. FAA-2000-7576, Initial Decision of Chief Adminislnitive Law Judge, at 9 n.54 (Aug. 30, 2004], 

Complainant argues that the Guidance was properly applied by assigning a final aggregate weight of "low moderate" to the case, n49 determining the Respondent to be a Category A offender ("Individual"), nSO and finding that the 

shipment was a Category II "Undeclared Shipment Withui Hazmat Ouaniity Limitations." n51 Respondent has not challenged [*16] Complainant's application of the Guidance. 

n49 Motion at 9. 

ii50 Id. at 8. 

n5iyrf. at8-9. 

A. "Aggregate Weight" of the Violation. 

In assessing civil penalties, the FAA uses the statutoty and regulatory con.siderations to determine the "aggregate 

weight" of the violation: "(1) the nature, circumstances, extent; and gravity of the violation; (2) with respect to the violator, the degree of culpability, any history of prior violations, the ability to pay, and any effect on the ability to continue 

to do busines.s; and (3) such other matters as justice may require." n52 However, the Guidance also notes that not all 

factors are lo be given equal weight and the final aggregate weight is "based on the totality of the facts and circumstances of the case." n53 As the factors "do not have to be equally considered, Complainant maintains relative prosecutorial discretion in determining the case's final aggregate weight" n54 in proposing a level of civil penalty. 

[•17.1 

n52 14 C.F.R. § 13.16(c); Motion Ex, 8, para. 8.a,(l), at C-5. 

n53 Guidance para 8.a.(3), at C-5. 

n54 Lambton Door:,; FAA Docket No. CP00SO0013, FDMS No. FAA-2000-7454, Initial Decision of Chief 

Administrative I .aw Judge, at 10 n.48 (May 7, 2004). See al.<;o Motion at Ex. 8 at C-8 ("To determine the final 

aggregate weight, the agent or attorney must exercise his or her discretion in light of the statutoiy factors and 

knowledge of the particular case"), 

(i) The Nature, Ciroumitanccs, Extent, and Gravity of the Violation. 

Respondent is an individual who shipped the hazardous materials for personal purposes. Respondent may have 

"forgotien" that the substances and items were hazardous materials but wa.s aware that they could not be transported on 

a plane. n55 
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20I0FAA LEXIS 99, * 

n55 See supra note 12 and accompanying text. 

Respondent offered for air transportation in commerce one package containing three different undeclared haziirdous 

materials. n56 Undeclared shipments ofhazardous materials pose a special [* 18] risk. n57 The materials at issue were a 

hazard class/division 2.1, "fiammable gas." n58 Complainant acknowledges, and Respondent does not contest, that this 

substance is a "Category A" material under the Guidelines, which carries a maximum weiglit, based upon their inherent 

danger to air transportation with a potentially catastrophic effects resulting in death or injury to the crew, passengers, 

and public. n59 

n56 See supra notes 6, 7, 13, and 14 and accompanying text. 

n57 Inter.'^Taie Chem. Co., FAA Order No. 2002-29, at 16 (Dec. 6, 2002); Phillips DIdg. Supply, FAA Order 

No 2000-20, at 11 (Aug. 11, 2000) (noting that such undeclared shipments "increase Ihc likelihood of injury") 

(quoting Midtown Neon Sign Corp., FAA Order No. 1996-26, at 10-11 (Aug. 13, 1996)). 

n58 Motion at 9; Guidance fig. C-2, at C-17, 

n59 Ibid. 

Complainant and the FAA agent found the quantity of hazardous material to be small, justifying a final aggregate 

weight of moderate. n60 The Guidance considers packages exceeding ['•'191 the authorized quantity limitations by a 

significant amount to be an aggravating factor. n61 Moreover, a package containing a forbidden material is assigned a 

maximum weight. n62 However, the Guidance also recognizes that other factors, which should be identified and explained, may be considered. n63 The Guidance's example is "a shipment containing a de minimis quantity of material or 

an amount that would have qualified under the small quantity exception or49 C.F.R. § 173.4 may present a mitigating 

factor if as a result there was a reduced risk to safety in transportation." n64 However, class/division 2.1 materials do 

not qualify for g 173.4a(b)'s small-quantity exception for u-an.sport aboard passenger aircraft. 

n60 Motion at 9, 

n61 Guidance para. 8.b.(2), at C-6. 

n62 Id 

1163 7^. para, 8,d.(l), aiC-8. 

n64 Id 

Therefore, Respondent's baggage contained two hazardou.s materials, propane and butane, forbidden for transportation aboard a passenger aircraft, n65 warranting a maximum weight. ['*20i All three hazardous materials were 

class/division 2.1 hazards nfifi and did not qualify for a small-quantity exception for transport abt)ard a passenger aircraft. However, Complainant identified the small quantity as a mitigating factor and supported the determination with 

ihe agent's declaration and assessment n67 reducing ihc aggregate weight to "moderate." 

n65 See 49 C.f ,R. S 172.101, listing "forbidden" on the HMR Hazardous Materials Table for rhe quantity 

limitations on passenger aircraft of propane and butane. 

n66 See .s'upra note 58, and accompanying text. 

n67 Complainant's Motion at 9-

The hazjirdous materials weie offered for shipment and could have caused severe personal injury and property 

damage. Moreover, the fact that the baggage lacked markings or labels regarding the hazardous nature of its contents 
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Page 8 

2010 FAA LEXIS 99, * 

created serious potential for harm, because the airline had no notice to take precautions that are necessary and prudent 

when iran-iiporting flammable and hazardous materials. n6S 

n68 See TCI Corp., FAA Order No. 1992-77, at 13 &. n. 17 (Dec. 22, 1993) (discussing loading, removal, 

and spill response options available to forewarned airline persomiel). 

[*2I] 

Fortunately, 'ISA discovered the items and potcniial danger was averted. However, absence of damage and personal injury was merely fortuitous and is not a mitigating factor, n69 Considering the lack of damage and injury. Complainant found no related aggravating factors. n70 

n69 Lambton Doors, .supra note 54, at 14 (citing TCI Corp., supra note 68, at 14). See also Guidance 

para.8.b.(3), at C-7 ("[T]hat no damage occurred as a result of the shipmenl is not a mitigating factor. However, 

damage or hann may aggravate the nature, circumstances, extent, and gravity of the violation."). 

n70 Motion at 9. 

(ii) Respondenl'.\ Degree of Culpability, History of Prior Offenses, Ability to Pay. 

The Complaint, Motion, and supporting documents indicate that Respondent bears full responsibility for the actions 

that led to the violations. Therefore, a reduced penalty is inappropriate in this case ba.sed on shared or partial culpability. 

n71 Although unfamiliar with the HMR, Respondent wa.s aware that the sub.stances could [•22] not be transported by 

air, suggesting more than a minimal sanction. Complainant offers no history of HMR violations; however, "a violationfiee history should be the norm and will not be considered as mitigating an otherwise reasonable civil penalty." n72 

Last, Respondent has never asserted any inability to pay the proposed civil penalty. 

n71 See Lambton Doors, supra note 54, at 15 (citing TCI Corp., supra note 6S, at 15-17 ("penalty reduced 

because violations arose in part as a result of a third party's negligence")). 

n72 Lambton Doors, supra note 54, at 15 (citing TCI Corp., supra note 68, at 20). 

(Hi) Other Matters That Justice May Require. 

Last, Complainant cites precedent that warrants the civil penalty amount. n73 Respondent offered no other matters, 

circumstances, or facts that justice might require to be con.sidered, Accordingly, Complainant's determination of a final 

aggregate weight of "low moderate" is appropriate, 

n73 Motion at 9-10. 

f23J 

B. Application oftha Matrix. 

The penalty range under the Guidance is determined by the type of violator and the type of violation, in accordance 

with the Guidance's manix. n74 

n74 See supra note 46 and accompanying text. 

(i) Type of Entity. 

A Category "A" offender is an "individual," n75 defined a.s "a human who offers a .shipment of hazardous material 

In his or her personal capacity, without any business purpose and not a.«; part of a commercial enterprise." n76 Respondent is a Categoiy A offender. 
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20101AAT,EXIS99, * 

n75 Guidance fig, C-1, at C-12. 

n76 Complainant's Motion at Ex. 8 at C-15. 

(ii) Offense Category. 

Complainant supports its Category II offense detennination with the declaration n77 of Agent Klimas, who treated 

the "aggregate case" as a Category II offen.sc based upon the torch lighter, though the other two hazardous materials (the 

propane [*24J and butane) offenses were Category 111. n78 However, Agent Klimas and Complainant recognized that 

the proposed civil penalty, $ 500, met the Category ITT minimum civil penalty for a Category A offender, n'79 

n77 An unsworn declaration under penalty ofperjury has the force and effect of a sworn declaration, verification, certificate, statement, oath, or affidavit. 2$ U.S.C. § 1746. 

n78 Motion Ex. 9 paru 2, at 1. 

n79 Motion at 9, Ex 9 para 4, ai 2. 

Ihe Guidance states that the offense categories "address the nature, circum.stances, and gravity of the particular offense." n80 Under the Guidance, a Category fl otTcnse is an "Undeclared Shipment Within Hazmat Qiiantily Limitations," n81 and a Category III olTense is an "Undeclared Shipment Hazmat forbidden on .. . Passenger Aircraft." n82 

n80 Guidance para. 6.e., at C-4. 

nSl Guidance fig. C-1, at C-12; para. 9.n.(l), at C-16, describes Category II as follows: "If the undeclared 

shipment i.s offered for transportation on .. . a puwfnj^w aircraft, the quantity of hazardous material must be 

wilhin the limitation, per package, for transportation on pa.Ksenger aircraft, as established in the 49 C.l'.K. § 

172.101 Table" (emphasis in original). 

1*251 

n82 Guidance fig. C-1, at C-I2i para. 9.m., at C-16, describe,? Category III as follows; "An undeclared 

shipment that is offered for transportation on or transported on a passenger aircraft, and the hazardous material is 

forbidden in air transportation on passenger aircraft (but not in air transportation in cargo aircraft), as established 

in liic 49 C.F.R. § 172.101 Table." 

The HMR Hazardous Materials Table of section 172.101 forbids the transportation ofpropane and butane by passenger aircraft. n83 Becau.se Category H offenses are limited to hazardous materials >vithin the HMR quantity limitations, a shipment containing aforhidden hazardous material cannot be a Category II offense. Accordingly, Complainant 

incorrectly a.ssumes that Category II is the appropriate offense category applied to Respondent's shipment. Respondent 

offered an undeclared shipment for transportation on a passenger aircraft and the hazardou-s material is forbidden in air 

iTiinsporiation on passenger aireraft, a Category 111 offense. 

n83 49 C.F.R, § 172.101, at 154,243. 

[*26J 

According to ihe Guidance Matrix, the total range for each offense relating to a Category III undeclared shipment 

offered by a Category A violator is S 500 to $ 5,500. n84 Complainant proposes a minimum civil penalty of.? 500. Although thai is the minimum penalty suggested by the Cniidance, that is the penalty requested in the Complaint, and consequently no greater penalty can be imposed. 

n84 W. atEx. 8atC-12. 
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Page 10 

2010 FAA TFXIS 99,'* 

The circumstances discussed above~as well as Respondent's reason for having the items, the haste that apparently 

precipitated his inclusion of them in his baggage, and his uncontroverted assertion that he could have avoided confiscation and reporting, had someone merely been able to remove them from the airport-all indicate that a significant sanction, with sufficient deterrent and punitive effect, is appropriate. Accoidliigly, we conclude that a civil penalty in the 

amount of $ 500 should be assessed. n85 

n85 This decision may be appealed to the Adminisiraior of the FAA, The Notice of Appeal must be filed not 

later than 10 days after service of this decision (plus five additional days, if this decision is served by mail). 14 

C.F.R. §§ 13.233(a), 13.211(e). The appeal mu.st be perfected with a wriucn brief or memorandum not later than 

50 days after service of this decision (plus five additional days, if this decision is served by mail), 14 C.F.R. §§ 

13.233(c), 13211(e). The Notice of Appeal and briefor memorandum must be either (a) mailed to the Federal 

Aviation Admini.straiion, 800 Independence Avenue, S.W., Washington, DC 20591; Altenlion; Hearing Docket 

Clerk, AOC-430, Wilbur Wright Building-Suite 2W1000, or (b) delivered personally or via expedited courier 

.service to the Federal Aviation Administration, 600 Independence Ave., S.W„ Wilbur Wright Building-Suite 

2W1000, Washington, DC 20591, Attention: Hearing Docket Clerk, AGC-430. 14 C.I '.R, §§ 13.233(a), 

13.210(a)(2), (I). A copy of the Notice of Appeal and brief or memorandum should also be .sent to counsel lor 

the FAA in this proceeding. 14 C.I'.R. § 13.233(a), 

[*271 

SO ORDERED. 

Ronnie A. Yoder 

Chief Administrative I ,aw Judge 

Legal Topics: 

For related research and practice materials, see the following legal topics; 

Transportation LawAir TransportationChartersTransponation I .awAir TransponationCommcrcial AirlinesLuggageGeneral OvervicwTransportation LawCairier Duties & I.iabilitiesHazardous Materials 
11/19/201 0 16:2 7 FAX 202493514 2 FAA •>• DMS 0022/023 

LexisNexis"" 

2 of 101 DOCUMENTS 

In the Matter of Airtran Airways, Inc., Respondent 

Docket No. CP10SO0002 

Civil Penalty Proceeding; DMS No. FAA-2010-0193 

irNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

OFFICE OF HEARINGS 

2010 FAA LEXIS 106 

May 19,2010 

ACTION: ['^I] ADMINISTRATIVE LAW JUDGE'S ORDER DLNVrMG MOTION FOR DECISION ON THE 

PLEADINGS AND GRANTING MOTION FOR TTEARTNG ON SANCTION ONLY 

ISSUEDBY: Isaac D. Benkin, Administrative Law Judge 

OPINION: 

In this case, the Federal Aviation Administrafion ("FAA" or "Complainant") has sought to recover a $ I5,OCIO civil penalty fi-om the Respondent, AirTran Airways, Inc. ("Respondent" or "AirTran"). The FAA has charged Air Iran with violating the hours-of-service restrictions applicable to the use of one ofits fliglil attendants. Those re.strictions arc found in 

§ 121.467 ofthe Federal Aviation Regulations ("EAR"), 14C.F.R.§ 121.467. 

The Respondent filed an answer to the FAA's complaint. The answer admined all of the factual allegations of the 

complaint but interposed an affitmative defense. Ihe affirmative defense claimed that the civil penalty sought by the 

FAA was "excessive and unwarranted," l he Respondent also requested an admiiiislraiive hearing. The case was assigned to me for the purpose of providing the hearing sought by AirTran and issuing an initial decision based on the 

evidence acquired during the hearing. 

The FAA then filed a motion for a decision on the pleadings or, in the alternative, for a determination ['*2] that the 

hearing would deal only with the issue of the appropriate amount of the civil penalty to be assessed. The Respondent 

submitted an opposition to the motion. The Respondent's opposition conceded that on the merits of the complaint's 

claun that AirTran had violated the hours-of-scrvice rules with respect to the flight attendant identified by the FAA, 

there were no issues of maierial fact to be decided. AirTran in elTecl agreed that it had required the fligln anendant to 

exceed the limitations in ? 121.467 of the FAR. However, AirTran also argued that the (S 15,000) sanction sought by 

the FAA was excessive, and that the agency improperly elected to use its autltority to exact a civil penalty for the violation. "Respondent believes that the factors iraditionally relied upon by Complainant to arrive al an appropriate sanction 

in matters similar to the one before this Court call for the impo.sition of a LeUer ofCorrection or a civil penalty much 

less than the $ 15,000 sought." 

The Complainant's motion papers purport to show that the amount of the penalty it has sought was calculated in accordance with FAA Oider2l.50.3B, effective October I, 2007. The I'AA pouits out that Ordef2l50.3B [•*3] contains 

guidance on the matter of sanctions for use by FAA employees involved in the invcstigaiion and prosecution of enforcement cases. It also notes that in Folsom's Air Service. Inc.. I'AA Order No 2008-11 (>lovember 6, 200S), the Administrator held that Order No. 2150.3D retlects the Administrator's general view.s about the civil penally rungcs that are 

appropriate for different types of violations. 

True as that may be, it remains clear that administrative law judges are not bound by the contents of Order 

2150,313, nl and that the Respondent is entitled to a hearing on the question whether S 15,000 or some lesser sum is the 
11/19/201 0 18:2 7 FAX 202493514 2 FAA •>• DMS 0023/023 

appropriate sanction for the violation it committed. This means that there are disputed issues of material fact that must 

be plumbed in order to arrive at the appropriate sanction. Tt follow.s that, although the FAA's motion to limit the hearing 

to the issue of sanction.s must he granted, there remains an issue of ihe appropriate sanction thai can be decided only 

after the hearing on that issue is held. 

nl See Eric ,'ialcido, 200S l')OT Av. lexis /rt" (initial decision); Lambton Doors. FAA Docket No. 

CP03SO0013 (May 7, 2004) (initial decision); AirwavS Froiaht Corp.. FAA Docket No. CP990021 (December 

29, 2000 (initial decision); Stebbins Aviation. Inc. FAA Docket No. CPOOSW0014 (August 30, 2004 (initial 

Decision), 

[*4] 

1 so ruling, I wish lo make it clear that the only issue remaining is the amount of the civil penally to be assessed. It 

is well-settled that the FAA's determination to institute a civil penalty proceeding rather tliaa employing some lesser 

form of sanction (such as a letter of concciion) is a matter conmiitted to the agency's sound discretion. It cannot, and 

will not, be reviewed by an adminisn-ative law judge conducting the hearing under the rtiles in Subpart G of I'art 13 of 

the FAA's regulations. Offshore Air. FAA Order No. 2002-7, 2002 Wl. 1042304 at I (Apr. 16, 2002); Glenn E. Wvalt. 

FAA Order No. 92-73, 1992 WL 733220 {Dt:c. 21, 1992): BMion-Maine Ait-wavs Corp.. FAA Docket No. CP0S5. 2008 

WL 3485802 al 2 (Aug. 8, 2008) (inhial decision). I'or this reason, evidence regarding the FAA'.s decision to use its civil 

penalty power rather than some other sanction will not be relevant in the upcoming hearing. 

For the reasons set forlh above, the FAA's motion for decision on the pleadings is denied, and tlie FAA's motion to 

limit the hearing to the issue of the appropriate amount of the civil penalty ['*5] to be assessed is granted. 

IT IS SO ORDERED. 

liCgal Topics: 

For related research and practice materials, see the following legal topics: 

Transportation LawAir TransponatiouPersoimelFliglit AttendantsTransportation LawAir TransportationU.S. Federal 

Aviation AdministrationCivil PenaltiesTransportation LawAir TransportationU.S. f-'cderal Aviation AdministrationDuties & Power