## SERVED: JANUARY 7, 2013.

UNITED STATES DEPARTMENT OFTRANSPORTATIO:Nf!ij] OFFICE OFHEARINGS

WASHINGTON, D. C.
) FEDERAL AVIATION ADMINISTRATION,) ) Complainant, ) ) DMS No. FAA-2011-1286 

### v. ) ) JOSEPH MOESSER, ) (Civil Penalty Action) ) Respondent. )



### INITIAL DECISION OFADMINISTRATIVE LAWJUDGE RICHARD C. GOODWIN Found: Complainantfailed to prove theviolations. The Complaintwill be dismissed.

I. Background
A. Context
This case originated with allegations ofComplainant Federal Aviation Administration ("Complainant," "FAA," or "the agency") that Joseph Moesser ("Respondent" or "Moesser") offered hazardous materials for transportationby air in violation ofthe 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 ofthose facts. Their disagreements are spelled out inthe various filings inthe case. Byjointmotion filed June 8, 2012, the parties asked me to resolve the issue of Respondent's liability onthe basis ofthe 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 ofthe Complaintbased onthe 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

..."whotravels 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 whenthe incident underreview occurred. Moesser had presented himselfto authorities at the Salt Lake City, UT airport ("SLC") on October 1, 2009. He was ticketed to fly on DeltaAirlines to Johannesburg, South Africa, with an intermediate stop at Atlanta, GA.
Federal authorities in SLC asked Mr. Moesser ifhe had any ammunition ineither his checked orhis carry-on baggage. Moesserresponded by opening a duffel bag and producing a locked metal box. Inside the box were three types ofitems: 1) one unopened commercially-packaged container ofHodgdon Triple Seven Pellets ("the pellets"); 2) one previously opened and partially emptied commercially-packaged container ofCCI 209M Shotshell primers (''theprimers"); and 3) two full boxes of25-countWinchester XX 12 gauge shotgun shells ("shotgun shells"). Agents informed Mr. Moesserthat the pellets were considered hazardous materials ("hazmats") barred byregulation 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 ofshotgun shells remained inside Moesser's metal box. A Federal agent asked Moesser ifhe had any other prohibited items. He replied inthe 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 SecondMotion for Decision
Initial Discovery Request Reply to Respondent's Response to SecondMotion 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 SecondMotionfor Decision Response to Initial Discovery Requests Supplemental Answers to Complainant's Requests for Admissions and Interrogatories

2 The parties also hadrequested that any ruling refrain from considering the issue ofsanction, asserting that an Initial Decision finding the violations in whole or in part would generate settlement discussions on that issue. In view ofthe disposition ofthis case, the request is dismissed as moot.3

The metal box, minus the offending materials, was placedback in Mr. Moesser's duffel bag. Moesserthen offered the bag for shipment. Transportation Security Administration ("TSA") personnel decided to examine the two boxes ofshotgun shells whichhad remained inside the metal box. They discovered that the top row ofshells in eachbox appeared to be new, unexpended shells withtheir primers intact. Butthe remaining shells, forty in number, had expended primers, and hadbeen refilled with other materials.3 These shells had beenrefilled as follows: a) thirty-eight had beenrefilled with Hodgdon Triple Sevenpellets (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 Respondenthadjustturned over to authorities.
This duffel bag, Respondent acknowledges, contained no identification markings or labels to indicate its contents. Norwas 

### itaccompanied byrequired shippingpapers describing the materials within. Suchpapers, including a Shipper's Certificate and a Declaration ofDangerous Goods, would have set outthe substances' proper shipping name, hazard class andtotal quantity by weight. The papers also wouldhave contained emergency response information.
The instantproceeding grew out ofthis incident. Before it got under way, however, Federal authorities had begun a criminal proceeding. Mr. Moesser was indicted on several counts. The matterwas resolved when Moesser entered a plea ofguilty on one count. Complainant asserts that Moesser's pleaprecludes himfrom arguing inthis proceedingthatthe pellets and primers the TSA had uncovered are nothazardous ornot prohibited orregulated 

### (see, e.g., Motion for Reconsideration and Second Motion for Decision, p. 2). Because ofthe threshold nature ofthis argument, itis treated below. C. The Criminal Proceeding 

### 1. Result
OnNovember4, 2009, Mr. Moesser was indicted on several charges stemming from this incident. The matterwas resolved by a pleaofguilty to one count ofviolating 18 U.S.C. §1036(a)(4). The plea states that Mr. Moesser'sviolation was in obtaining access to the secure areaofan airport by fraud and false pretenses. The basis ofthe count, the plea adds, was Mr. Moesser's "purposeful concealment in checked baggage of dangerous items he knew to beprohibited and which he expected to accompany him on the aircraft," 

### viz. the pellets andprimers. The U.S. District Court for the District ofUtah accepted the guilty plea and enteredjudgmentagainst Mr. Moesser for violating 18 U.S.C. §1036(a)(4) onApri113, 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 ofguilty plea); Exhibit 2 (substance ofguilty plea). The prosecutor'srecitation that the incident occurred on October I, 2010, is in error; the parties to this case agree that ittook place on October I, 2009. Complaint, §II,**~1,** and Respondent's Answer. Moreover, the presiding U.S. District Courtjudge, in a Memorandum Decision and (footnote continued on next page)4



### 2. Collateral Estoppel
The agency argues that as a result ofRespondent's plea, he is collaterally estopped from arguing that the materials at issue inthis proceeding are not hazardous or prohibited orregulated as such (see, e.g., Motion for Reconsideration and Second Motion for Decision, pp. 5-7). This contention fails.
Underthe principle ofcollateral estoppel (also known as issue preclusion), once anissue has been determined by a court ofcompetentjurisdiction, that determination is conclusive in a subsequent suit involving a party to the prior litigation (see, e.g., Montana v. UnitedStates, 440U.S. 147, 162-63 (1979)). As a general rule the doctrine applies only when an issue offact orlaw is 'actually litigated'- that is, when it is determined by a valid and finaljudgment and the determination is essential to thejudgment (Arizona v. California, 530 U.S. 392,414 (2000)).
FAA's argument fails because the issue ofwhetherthe primers and pellets·are, respectively, regulated and prohibited under the HMRs, was not actually litigated inthe criminal case. The District Court'sjudgmentwas 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 pleainvolved a stipulation betweenthe parties that the ammunition involved was regulated and prohibited. Facts established not byjudicial 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 showthat the parties inthe criminal matterhad such an intention. For all ofthese reasons, Respondent is not precluded from asserting that the pellets and primers are not hazardous orthatthey 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 itselfcontained the two boxes ofshotgun shells. Complainant charges thatthe 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 beenproperly classed, packaged, marked, labeled, or inthe condition for shipmentthat the HMRs require. As such, the agency charges that Respondent, in offering the duffel bag for air
(footnote continued.from previous page) Order datedNovember 19, 2010 issued in the criminal proceeding, correctly stated the date ofthe 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 withoutproperly describing them in shipping papers); 172.300 andJ72.301(a) (offering hazardous materials in a package not marked withproper shipping names); 172.304(a)(1) (offering hazardous materials whenrequired markings were not durable, inEnglish, andprinted on or affixed to the surface ofthe package or on a label, tag, or sign); 172.400(a) (offering a hazmatpackage not labeled as specified inthe Hazardous Materials Table following §172.101); 172.600( c) (offering hazmats withoutproviding specified emergency response information); 173.l(b) (offering an improperlyprepared hazmat shipment); 173.22(a) (failure to properly class and describe the hazardous material inthe 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 ofMr. 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 orotherpackagings specifically designed to carry small amounts ofammunition." 49 C.F.R. §175.10(a)(8). Respondent asserts thatthe primers and pellets do not come within the HMRs' air transport restrictions because they are exempted as "ammunitionfor 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 thatthe pellets constitute "smokeless powder for small arms." (Answer, Affirmative Defenses §1,**~1).** He adds that the primers, as well as the pellets, are "commonlyused by sportsmen hunting withmuzzle-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 ofconstitutional guarantees ofdue process oflaw.
A cornerstone ofthe principle ofdue process is the duty ofadequate notice. In the contextbefore us, itrequires affected parties to be given fair warning ofregulated conduct. See Village of Hoffman Estates v. Flipside, 455 U.S. 489,503 (1982). From this preceptthe "vagueness" doctrine derives. Laws and regulations, the doctrine states, "[must] give the person ofordinary intelligence a reasonable opportunity to knowwhat is6
prohibited, so that he may act accordingly" (Graynedv. Rockford, 408 U.S. 104, 108 (1972)). As such, liability may not be imposed when the regulation either "forbids or requires the doing ofan act interms so vague that men ofcommon 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 ofthe vagueness doctrine, Respondent argues. Pertinentregulations 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 thatthe substances at issue might have been subject to regulation. Moesser asserts that he was unable to determine whetherthe 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 PariMateria Respondent also argues thatthe exemption granted by §175.10(a)(8) should be construed inparimateria 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 ofinparimateria is a canon ofstatutory construction which instructs tribunals to interpret together similarly-worded·statutes orregulations which generally relate to the same subject matter orhave a commonpurpose as 

### ifthey were one law. Itis based onthe notionthat a lawmaking body will not deliberately enact inconsistentprovisions. See, e.g., Hall v. UnitedStates, 677 .F.3d 1340 (Fed.Cir. 2012); UnitedStates 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 otherthings, "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 bythe ATF exemption. Applying the principle ofinparimateria, then, would exempt the pellets and primers at issue from the HMRs' restrictions, Respondent concludes (Answer,**~II,** §3; Response to Complainant'sMotion 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 PariMateria Initially, I reject Respondent's claimed application ofthe doctrine ofinpari materia. Itdoes not apply inthis 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 thepossession ofexplosives in airports, while the HMRs relate to the transportation of hazardous materials generally. This circumstance demonstrates that the doctrine cannot apply. See, e.g., UnitedStates 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 ofthis part are in additionto, and not in lieu of, any otherprovision oflaw, orregulations, respecting commerce in explosive materials

.. " (27 C.P.R. §555.2). Thus the HMRs are in addition to the ATF regulations; theregulations ofthe different agencies may not be construed together. 

### B. Due Process
The determination offailure ofproofis bottomed on application ofthe principles ofdue process oflaw. 

### 1. The Pellets
Considerations ofdue process oflaw compel the conclusion that the agency failed to showthat Mr. Moesser's offer ofthe pellets violated the cited HMRs. Inthe end, the ambit ofthe regulations' exemption from otherwise-applicable restrictions for "small arms ammunition for personal use" was fatally unclear. Initially, the nature ofthe pellets mustbe 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 thatthe pellets be described and shipped as "Propellant, solid." In support itcites advice it gave to the manufacturer (Motion for Reconsideration and Second Motion for Decision, pp. 10-11 and Exhibit 11 attached). Each ofthe three subcategories ofthis description inthe Table is forbidden from passenger transport.5 But it is far from clearthat the pellets must fall into one ofthese subcategories. Respondent counters that the pellets should be categorized as "smokeless powder." This description is reasonable and warrants additional examination. Scrutiny ofthe Table shows that two descriptions/shipping names are nearly identical to Respondent's characterization. One is "Smokelesspowder for small arms (100pounds or less)." Complainant, however, states that even ifthe pellets properly could be so

5 These subcategories are in Hazard class/Divisions 1.1C, 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 ofthese also is banned from passenger transport.6 So the pellets are banned from passenger transport no matter howthey are characterized underthe Table.
This does not end our inquiry, however. We have not yet considered the basis of Mr. Moesser's case - his contention thatthe HMRs exempt both the pellets and the primers because they fall within the exception for "small arms ammunition for personal use ... " Basic canons ofconstruction dictate that these words maynot be ignored. They must be given substance and meaning. They are not superfluous.7 Examining the Table shows thatthe shipping name and description closestto the words ofthe 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. Ofthese, two are permitted onpassenger aircraft.
The HMRs, then, present the would-be shipper with contradictory messages. Are the pellets banned from passengertransport? Or do they fall with the HMRs' exemption for "small arms ammunition for personal use"? Adequate definition ofthe exemption would resolve this problem. But it simply is not clearwhat the exemption in fact exempts. Thepellets under review may or may not fall within it. As such, enforcement is precluded because the principle ofdue process oflawhas been violated. Notice sufficient to apprise a person ofordinary intelligence ofwhat is regulated orprohibited 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 1.1C, 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 ofexplosives that have afire hazard and either a minor blast hazard or aminor projection hazard orboth, but not a mass explosionhazard (§173.50(b)(3));" and substances in Division 1.4 present a "minorexplosion hazard." The letter "C" is a classification code referring to the substance's "compatibility group." Compatibility group letters specify the appropriate storage and transportation ofthe substance. §173.52. Compatibility group "C" conveys a "[p]ropellantexplosive substance or other deflagrating explosive substance or article containing such explosive substance." See Table 1following §173.51. 7 Abasic tenet ofstatutory construction- equally applicable to regulatory construction- is that a text "should be construed so that effect is given to all its provisions, so thatno part will be inoperative or superfluous, void, or insignificant

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



### 2. The Primers
Considerations ofdue 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 ifprimers for use in muzzleloading rifles are included within the exception. Additionally, independently it cannot be determined whetherprimers are permitted aboard passenger aircraft. Primers are described bythe Table either as "Cases, cartridges, empty with primer" or as "Primers, cap type." The former is forbidden on passenger aircraft; but the appropriate disposition ofthe latter is less apparent. "Primers, cap type" are further divided into three hazard classes and divisions. Two ofthe 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 oflaw. Against this background, no violations ofthe HMRs for offering the primers canbe found. 

### C. Conclusion
Pursuantto 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 LawJudge

8 All arguments notdiscussed have been considered andrejected as without merit. 9 This decision may be appealed to the Administrator ofthe FAA. The notice ofappeal must conform to sections 13.210, 13.211(e) and 13.233 ofthe Rules ofPractice, which require that a notice ofappea11) be filed not later than 10 days (plus an additional five days ifmailed) from the service date ofthis decision, and 2) be perfected with a written brieformemorandum not laterthan 50 days (plus an additional five, if mailed) from the service date ofthis decision. The notice ofappeal and brieformemorandum 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 orvia expedited courier service to the Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-suite2Wl000, Washington, D.C. 20591, Attn: Hearing Docket Clerk, AGC-430. A copy ofthe notice ofappeal and brieformemorandum also must be sentto agency counsel. Service upon the presidingjudge 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 2W1000 1 

### 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 ofthe 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 LawJudge Office ofHearings, M-20 U.S. Department ofTransportation ·1200NewJersey Avenue, S.E. (Ell-310) Washington, DC 20590 TEL: 202-366-2139 Attorney-Advisor 202-366-5121 StaffAssistant ' FAX: 202-366-7536

1 Service was by U.S. Mail. For service inperson orby 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.