SERVED: JANUARY 7, 2013. 

UNITED STATES DEPARTMENT OF TRANSPORTATIO:Nf!ij] 

OFFICE OF HEARINGS 

WASHINGTON, D. C. 

) 

FEDERAL AVIATION ADMINISTRATION,) 

) 

Complainant, ) 

) DMS No. FAA-2011-1286 

v. ) 

) 

JOSEPH MOESSER, ) (Civil Penalty Action) 

) 

Respondent. ) 

INITIAL DECISION 

OF ADMINISTRATIVE LAW JUDGE RICHARD C. GOODWIN 

Found: Complainant failed to prove the violations. The Complaint will be 

dismissed. 

I. Background 

A. Context 

This case originated with allegations of Complainant Federal Aviation 

Administration ("Complainant," "FAA," or "the agency") that Joseph Moesser 

("Respondent" or "Moesser") offered hazardous materials for transportation by air in 

violation of the Department's Hazardous Materials Regulations ("HMRs"), 49 CFR 

§§171-178. The parties agree on the underlying facts. They disagree on the legal 

interpretation and consequences of those facts. Their disagreements are spelled out in the 

various filings in the case. 

By joint motion filed June 8, 2012, the parties asked me to resolve the issue of 

Respondent's liability on the basis of the pleadings and other documents submitted to 

date. They state that the matter can be decided on the papers; an oral evidentiary hearing 

simply is unnecessary. 
2 

I granted the motion. My Order so doing, served June 24, 2012, states that an 

Initial Decision ("I.D.") would issue in due course adjudicating the charges of the 

Complaint based on the filings to date. 1 The hearing, scheduled to begin on August 15, 

2012, was continued indefinitely (see Continuance ofHearing, served May 29, 2012). 

Herewith the I.D.2 

B. Agreed Facts 

Mr. Moesser is an "accomplished big-game and nationally-recognized hunter 

... "who travels worldwide to hunt (Complainant's Motion for Reconsideration and 

Second Motion for Decision, Exh. 6, p. 1 ). He was about to embark on an expedition 

when the incident under review occurred. Moesser had presented himself to authorities at 

the Salt Lake City, UT airport ("SLC") on October 1, 2009. He was ticketed to fly on 

Delta Airlines to Johannesburg, South Africa, with an intermediate stop at Atlanta, GA. 

Federal authorities in SLC asked Mr. Moesser if he had any ammunition in either 

his checked or his carry-on baggage. Moesser responded by opening a duffel bag and 

producing a locked metal box. Inside the box were three types of items: 1) one unopened 

commercially-packaged container of Hodgdon Triple Seven Pellets ("the pellets"); 2) one 

previously opened and partially emptied commercially-packaged container of CCI 209M 

Shotshell primers (''the primers"); and 3) two full boxes of25-count Winchester XX 12 

gauge shotgun shells ("shotgun shells"). 

Agents informed Mr. Moesser that the pellets were considered hazardous 

materials ("hazmats") barred by regulation from all air transport. The agents added that 

the primers also were hazmats and were regulated. Respondent voluntarily turned them 

both over. The two boxes of shotgun shells remained inside Moesser's metal box. A 

Federal agent asked Moesser if he had any other prohibited items. He replied in the 

negative. 

1 These filings are arranged chronologically, by party, below. (Filings listed on the same horizontal line do 

not necessarily relate to each other): 

Complainant 

Complaint 

Motion for Decision 

Motion for Reconsideration 

and Second Motion for Decision 

Initial Discovery Request 

Reply to Respondent's Response to 

Second Motion for Decision 

Motion to Compel 

Respondent 

Answer 

Response to Order to Show Cause 

Motion to Strike Complainant's Motion for 

Reconsideration and Second Motion for 

Decision 

Response to Complainant's Second Motion for 

Decision 

Response to Initial Discovery Requests 

Supplemental Answers to Complainant's Requests 

for Admissions and Interrogatories 

2 The parties also had requested that any ruling refrain from considering the issue of sanction, asserting that 

an Initial Decision finding the violations in whole or in part would generate settlement discussions on that 

issue. In view of the disposition of this case, the request is dismissed as moot. 
3 

The metal box, minus the offending materials, was placed back in Mr. Moesser's 

duffel bag. Moesser then offered the bag for shipment. Transportation Security 

Administration ("TSA") personnel decided to examine the two boxes of shotgun shells 

which had remained inside the metal box. They discovered that the top row of shells in 

each box appeared to be new, unexpended shells with their primers intact. But the 

remaining shells, forty in number, had expended primers, and had been refilled with other 

materials.3 These shells had been refilled as follows: a) thirty-eight had been refilled 

with Hodgdon Triple Seven pellets (three pellets per shell); and b) two had been refilled 

with CCI 209M Shotshell primers (twenty-five primers per shell). These items, of 

course, were identical to the items Respondent had just turned over to authorities. 

This duffel bag, Respondent acknowledges, contained no identification markings 

or labels to indicate its contents. Nor was it accompanied by required shipping papers 

describing the materials within. Such papers, including a Shipper's Certificate and a 

Declaration of Dangerous Goods, would have set out the substances' proper shipping 

name, hazard class and total quantity by weight. The papers also would have contained 

emergency response information. 

The instant proceeding grew out of this incident. Before it got under way, 

however, Federal authorities had begun a criminal proceeding. Mr. Moesser was indicted 

on several counts. The matter was resolved when Moesser entered a plea of guilty on one 

count. Complainant asserts that Moesser' s plea precludes him from arguing in this 

proceeding that the pellets and primers the TSA had uncovered are not hazardous or not 

prohibited or regulated (see, e.g., Motion for Reconsideration and Second Motion for 

Decision, p. 2). Because ofthe threshold nature of this argument, it is treated below. 

C. The Criminal Proceeding 

1. Result 

On November 4, 2009, Mr. Moesser was indicted on several charges stemming 

from this incident. The matter was resolved by a plea of guilty to one count of violating 

18 U.S.C. §1036(a)(4). The plea states that Mr. Moesser's violation was in obtaining 

access to the secure area of an airport by fraud and false pretenses. The basis of the 

count, the plea adds, was Mr. Moesser's "purposeful concealment in checked baggage of 

dangerous items he knew to be prohibited and which he expected to accompany him on 

the aircraft," viz. the pellets and primers. The U.S. District Court for the District of Utah 

accepted the guilty plea and entered judgment against Mr. Moesser for violating 18 

U.S.C. §1036(a)(4) on Apri113, 2011.4 

3 Shotgun shell casings are reusable. Once the shell has been fired, new gunpowder, primer, and shot can 

be refilled in the shell casing for re-firing. See U.S. v. Blair, 189 Fed.Appx. 231, 233 (4 Cir. 2006). 4 See Complainant's Motion for Reconsideration and Second Motion for Decision, as well as the following 

exhibits attached to the motion: Exhibit 8 (Indictment); Exhibit 1 (Judge's acceptance of guilty plea); 

Exhibit 2 (substance of guilty plea). The prosecutor's recitation that the incident occurred on October I, 

2010, is in error; the parties to this case agree that it took place on October I, 2009. Complaint, §II, ~1, and 

Respondent's Answer. Moreover, the presiding U.S. District Court judge, in a Memorandum Decision and 

(footnote continued on next page) 
4 

2. Collateral Estoppel 

The agency argues that as a result of Respondent's plea, he is collaterally 

estopped from arguing that the materials at issue in this proceeding are not hazardous or 

prohibited or regulated as such (see, e.g., Motion for Reconsideration and Second Motion 

for Decision, pp. 5-7). This contention fails. 

Under the principle of collateral estoppel (also known as issue preclusion), once 

an issue has been determined by a court of competent jurisdiction, that determination is 

conclusive in a subsequent suit involving a party to the prior litigation (see, e.g., Montana 

v. United States, 440U.S. 147, 162-63 (1979)). As a general rule the doctrine applies 

only when an issue of fact or law is 'actually litigated'- that is, when it is determined by 

a valid and final judgment and the determination is essential to the judgment (Arizona v. 

California, 530 U.S. 392,414 (2000)). 

FAA's argument fails because the issue of whether the primers and pellets· are, 

respectively, regulated and prohibited under the HMRs, was not actually litigated in the 

criminal case. The District Court's judgment was established by a guilty plea. Issues so 

determined generally are not considered to have been actually litigated. Arizona v. 

California, p. 414. Additionally, the guilty plea involved a stipulation between the 

parties that the ammunition involved was regulated and prohibited. Facts established not 

by judicial resolution but by stipulation also are not considered to have been actually 

litigated (Otherson v. Department ofJustice, 711 F.2d 267,274 (D.C. Cir. 1983)). 

Moreover, the plea, I find, was akin to a settlement agreement. Settlements ordinarily do 

not invoke issue preclusion unless it is clear that the parties intended their agreement to 

have that effect (Arizona v. California, p. 414). No evidence tends to show that the 

parties in the criminal matter had such an intention. For all of these reasons, Respondent 

is not precluded from asserting that the pellets and primers are not hazardous or that they 

are not prohibited and/or regulated. 

II. The Instant Charges 

The inst~t civil complaint concerns the pellets and primers TSA agents had 

found inside Mr. Moesser's metal box. The agents' discovery occurred after Moesser 

had given up the pellet- and primer-filled commercially-packaged containers and had 

then offered the duffel bag for shipment (I.D., p. 2). Inside the bag was the metal box 

which itself contained the two boxes of shotgun shells. Complainant charges that the 

pellets and primers the agents found inside the box are classified as hazardous materials 

under the HMRs. The Complaint alleges that these substances had not been properly 

classed, packaged, marked, labeled, or in the condition for shipment that the HMRs 

require. As such, the agency charges that Respondent, in offering the duffel bag for air 

(footnote continued. from previous page) 

Order dated November 19, 2010 issued in the criminal proceeding, correctly stated the date of the incident. 

Response to Complainant's Second Motion for Decision, Attachment A, p. 2. 
5 

transportation as described above, violated the following HMRs: 49 C.F.R. §§171.2(e) 

(offering hazardous materials for transportation which were not properly classed, 

described, packaged, marked, labeled, and in the condition for shipment as required); 

172.200( a) and 172.202 (offering hazardous materials for transportation without properly 

describing them in shipping papers); 172.300 and J 72.301(a) (offering hazardous 

materials in a package not marked with proper shipping names); 172.304(a)(1) (offering 

hazardous materials when required markings were not durable, in English, and printed on 

or affixed to the surface of the package or on a label, tag, or sign); 172.400(a) (offering a 

hazmat package not labeled as specified in the Hazardous Materials Table following 

§ 172.101 ); 172.600( c) (offering hazmats without providing specified emergency response 

information); 173.l(b) (offering an improperly prepared hazmat shipment); 173.22(a) 

(failure to properly class and describe the hazardous material in the shipment); 

173.27(b)(1) (offering for transportation a material forbidden from transport aboard a 

passenger-carrying aircraft); and 173.27(b)(2) (offering for transportation a material 

forbidden from transport aboard aircraft). See Complaint dated December 2, 2011. 

Pursuant to 49 U.S.C. §5123, the agency asks for a total civil penalty of$162,500. 

A. Respondent's Defenses 

1. Exemption for "small arms ammunition" 

The gravamen of Mr. Moesser's counterargument is his affirmative defense that 

the pellets and primers he tendered for transport are exempt from otherwise-applicable 

regulatory restrictions and prohibitions as "small arms ammunition for personal use." 

The HMRs contain an exemption for "small arms ammunition for personal use ... 

securely packed in boxes or other packagings specifically designed to carry small 

amounts of ammunition." 49 C.F.R. §175.10(a)(8). Respondent asserts that the primers 

and pellets do not come within the HMRs' air transport restrictions because they are 

exempted as "ammunition for small arms" (Answer, Affirmative Defenses, § II, ~2, on p. 

5; Response to Complainant's Second Motion for Decision, pp. 4-6). 

Mr. Moesser specifically contends that the pellets constitute "smokeless powder 

for small arms." (Answer, Affirmative Defenses §1, ~1). He adds that the primers, as well 

as the pellets, are "commonly used by sportsmen hunting with muzzle-loading rifles." 

(Answer, Affirmative Defenses §1, ~~1 and 2). 

2. Due Process 

Respondent also contends that violations may not be found because such an 

outcome would run afoul of constitutional guarantees of due process of law. 

A cornerstone of the principle of due process is the duty of adequate notice. In 

the context before us, it requires affected parties to be given fair warning of regulated 

conduct. See Village of Hoffman Estates v. Flipside, 455 U.S. 489,503 (1982). From 

this precept the "vagueness" doctrine derives. Laws and regulations, the doctrine states, 

"[must] give the person of ordinary intelligence a reasonable opportunity to know what is 
6 

prohibited, so that he may act accordingly" (Grayned v. Rockford, 408 U.S. 104, 108 

(1972)). As such, liability may not be imposed when the regulation either "forbids or 

requires the doing of an act in terms so vague that men of common intelligence must 

necessarily guess at its meaning and differ as to its application" (US. v. Lanier, 520 U.S. 

259, 266-267 (1997)). 

The facts here require invocation of the vagueness doctrine, Respondent argues. 

Pertinent regulations exempt "small arms ammunition" from otherwise-applicable 

restrictions, but do not define the quoted term. This omission, Mr. Moesser argues, 

establishes that the HMRs are too vague to provide fair warning that the substances at 

issue might have been subject to regulation. Moesser asserts that he was unable to 

determine whether the pellets and primers fell within or without the exemption (Response 

to Complainant's Second Motion for Decision, pp. 6-7; Answer, Affirmative Defenses, 

§II, ~4). 

3. In Pari Materia 

Respondent also argues that the exemption granted by §175.10(a)(8) should be 

construed in pari materia with 27 C.F.R. §55.5.11, a regulation issued by the Bureau of 

Alcohol, Tobacco, and Firearms ("ATF"). So doing shows that the materials at issue fall 

within the HMRs' exemption, Respondent concludes. ' 

The principle of in pari materia is a canon of statutory construction which 

instructs tribunals to interpret together similarly-worded· statutes or regulations which 

generally relate to the same subject matter or have a common purpose as if they were one 

law. It is based on the notion that a lawmaking body will not deliberately enact 

inconsistent provisions. See, e.g., Hall v. United States, 677 .F.3d 1340 (Fed.Cir. 2012); 

United States v. Carr, 880 F.2d 1550, 1553 (2nd Cir. 1989). 

The ATF regulation referenced excepts "ammunition" from ATF's general 

prohibition against possessing an explosive in an airport. The ATF defines 

"ammunition." The definition includes, among other things, "small arms ammunition ... 

primers, ... and smokeless propellants designed for use in small arms, ... " Mr. 

Moesser, as we have seen, has characterized the pellets and primers as "smokeless 

powder for small arms" (I.D., p. 5)- a description very similar to substances 

encompassed by the ATF exemption. Applying the principle of in pari materia, then, 

would exempt the pellets and primers at issue from the HMRs' restrictions, Respondent 

concludes (Answer, ~II, §3; Response to Complainant's Motion for Decision, pp. 4-6). 

III. Determination 

I find and conclude that Complainant has failed to prove the violations. This 

determination includes both the pellets and the primers. 
7 

A. In Pari Materia 

Initially, I reject Respondent's claimed application of the doctrine of in pari 

materia. It does not apply in this case, I find. 

The notion fails because the respective regulations were issued by separate and 

distinct regulatory bodies for fundamentally different purposes. ATF regulations govern 

the possession of explosives in airports, while the HMRs relate to the transportation of 

hazardous materials generally. This circumstance demonstrates that the doctrine cannot 

apply. See, e.g., United States v. Granderson, 511 U.S. 39, 50-51 (1994). 

The ATF regulations, moreover, themselves clearly set out their limited 

applicability. They state that "[t]he provision of this part are in addition to, and not in 

lieu of, any other provision of law, or regulations, respecting commerce in explosive 

materials .. " (27 C.P.R. §555.2). Thus the HMRs are in addition to the ATF regulations; 

the regulations of the different agencies may not be construed together. 

B. Due Process 

The determination of failure of proof is bottomed on application of the principles 

of due process oflaw. 

1. The Pellets 

Considerations of due process of law compel the conclusion that the agency failed 

to show that Mr. Moesser's offer of the pellets violated the cited HMRs. In the end, the 

ambit of the regulations' exemption from otherwise-applicable restrictions for "small 

arms ammunition for personal use" was fatally unclear. 

Initially, the nature of the pellets must be determined; and to do that we tum to the 

Hazardous Materials Table ("Table"), found immediately following 49 C.F .R. § 172.101. 

The Table categorizes hazmats for shipping purposes. Complainant asserts that the 

Table indicates that the pellets be described and shipped as "Propellant, solid." In 

support it cites advice it gave to the manufacturer (Motion for Reconsideration and 

Second Motion for Decision, pp. 10-11 and Exhibit 11 attached). Each of the three 

subcategories of this description in the Table is forbidden from passenger transport. 5 But 

it is far from clear that the pellets must fall into one of these subcategories. 

Respondent counters that the pellets should be categorized as "smokeless 

powder." This description is reasonable and warrants additional examination. Scrutiny 

of the Table shows that two descriptions/shipping names are nearly identical to 

Respondent's characterization. One is "Smokeless powder for small arms (100 pounds 

or less)." Complainant, however, states that even if the pellets properly could be so 

5 These subcategories are in Hazard class/Divisions 1.1 C, 1.3C, and 1.4C. See n.6 for an explanation of 

these codes. 
8 

described- and they could have been, had Respondent packaged them appropriately and 

shipped them to a destination within the United States -they still would be barred from 

passenger aircraft. The Table shows this to be true. Yet the pellets arguably could 

properly land in still another category-- under the Table's generic description and 

shipping name "Powder, smokeless." Indeed, this description seemingly would most 

closely conform to Respondent's "smokeless powder" description. Yet like the 

"Propellant, solid" category advanced by the agency, this categorization is further broken 

down into three subcategories - and each of these also is banned from passenger 

transport. 6 So the pellets are banned from passenger transport no matter how they are 

characterized under the Table. 

This does not end our inquiry, however. We have not yet considered the basis of 

Mr. Moesser' s case - his contention that the HMRs exempt both the pellets and the 

primers because they fall within the exception for "small arms ammunition for personal 

use ... " Basic canons of construction dictate that these words may not be ignored. 

They must be given substance and meaning. They are not superfluous. 7 Examining the 

Table shows that the shipping name and description closest to the words of the exemption 

is "Ammunition, SA (small arms)." The Table, in turn, directs one intending to transport 

such materials to the generic shipping name "Cartridges for weapons, etc." Fifteen 

subcategories of "cartridges for weapons" are found in the Table. Of these, two are 

permitted on passenger aircraft. 

The HMRs, then, present the would-be shipper with contradictory messages. Are 

the pellets banned from passenger transport? Or do they fall with the HMRs' exemption 

for "small arms ammunition for personal use"? Adequate definition of the exemption 

would resolve this problem. But it simply is not clear what the exemption in fact 

exempts. The pellets under review may or may not fall within it. As such, enforcement 

is precluded because the principle of due process of law has been violated. Notice 

sufficient to apprise a person of ordinary intelligence of what is regulated or prohibited is 

lacking. 

6 Motion for Reconsideration and Second Motion for Decision, pp. 10-11; see Table immediately following 

§172.101. The three subcategories both of"Propellant, solid" and "Powder, smokeless" are Hazard classes 

and Divisions 1.1 C, 1.3C, and 1.4C. Division 1.1 explosives are defined as having a "mass explosion 

hazard." This term describes an explosion "which affects almost the entire load instantaneously" 

(§173.50(b)(l)). Division 1.3 "consists of explosives that have a fire hazard and either a minor blast hazard 

or a minor projection hazard or both, but not a mass explosion hazard (§173.50(b)(3));" and substances in 

Division 1.4 present a "minor explosion hazard." The letter "C" is a classification code referring to the 

substance's "compatibility group." Compatibility group letters specify the appropriate storage and 

transportation of the substance. § 173.52. Compatibility group "C" conveys a "[p ]ropellant explosive 

substance or other deflagrating explosive substance or article containing such explosive substance." See 

Table 1 following § 173.51. 7 A basic tenet of statutory construction- equally applicable to regulatory construction- is that a text 

"should be construed so that effect is given to all its provisions, so that no part will be inoperative or 

superfluous, void, or insignificant ... " APWUv. Potter, 343 F.3d 619,626 (2 Cir. 2003). 
9 

2. The Primers 

Considerations of due process compel the identical conclusion with respect to the 

primers. Enforcement is fatally flawed because it is not clear what the HMRs' 

exemption for "small arms ammunition for personal use" exempts. More specifically, it 

cannot be determined if primers for use in muzzleloading rifles are included within the 

exception. 

Additionally, independently it cannot be determined whether primers are 

permitted aboard passenger aircraft. Primers are described by the Table either as "Cases, 

cartridges, empty with primer" or as "Primers, cap type." The former is forbidden on 

passenger aircraft; but the appropriate disposition of the latter is less apparent. "Primers, 

cap type" are further divided into three hazard classes and divisions. Two of the three are 

forbidden from passenger aircraft; the third is permitted. The HMRs, I find, do not 

sufficiently distinguish these three entries in away which would allow a person of 

ordinary or common intelligence to understand whether the materials Mr. Moesser sought 

to transport could be legally tendered. Enforcement is therefore foreclosed because it 

would violate due process of law. Against this background, no violations of the HMRs 

for offering the primers can be found. 

C. Conclusion 

Pursuant to the foregoing discussion, I find and conclude that Complainant failed 

to prove the violations.8 The hearing is canc~ed..and.~atter is dismissed.9 

--M . .,.,~,::·:-·••·•-7:::.:·• . ' ' 

/ / 

Attachment - Service List 

.,....,.,,. .. ""C. Goodwin 

Administrative Law Judge 

8 All arguments not discussed have been considered and rejected as without merit. 

9 This decision may be appealed to the Administrator of the FAA. The notice of appeal must conform to 

sections 13.210, 13.211(e) and 13.233 of the Rules of Practice, which require that a notice ofappea11) be 

filed not later than 10 days (plus an additional five days if mailed) from the service date of this decision, 

and 2) be perfected with a written brief or memorandum not later than 50 days (plus an additional five, if 

mailed) from the service date of this decision. The notice of appeal and brief or memorandum must either 

be a) mailed to the Federal Aviation Administration, 800 Independence Avenue, S.W., Washington, DC 

20591, Attn: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-Suite 2Wl000, or b) delivered 

personally or via expedited courier service to the Federal Aviation Administration, 600 Independence 

Avenue, S.W., Wilbur Wright Building-suite 2Wl000, Washington, D.C. 20591, Attn: Hearing Docket 

Clerk, AGC-430. A copy of the notice of appeal and brief or memorandum also must be sent to agency 

counsel. Service upon the presiding judge is optional. 
10 

SERVICE LIST 

ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-Suite 2W10001 

ONE COPY 

Gregory G. Skordas, Respondent's Counsel 

Skordas, Caston & Hyde, LLC 

341 South Main Street, Suite 303 

Salt Lake City, UT 84111-2707 

TEL: 801-531-7444 

FAX: 801-531-8885 

Jeffrey M. Harper, Complainant's Counsel 

Attorney, Office of the Regional Counsel 

Northwest Mountain Region, ANM-7 

Federal Aviation Administration 

1601 Lind Avenue S.W. 

Renton, W A 98057 

TEL: 425-227:.2161 

FAX: 425-227-1007 

FDMS No. FAA-2011-1286 

(Civil Penalty Action) 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

·1200New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Staff Assistant ' 

FAX: 202-366-7536 

1 Service was by U.S. Mail. For service in person or by expedited courier, use the following address: 

Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright BuUding-Suite 

2WIOOO, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.