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UNITED STATES DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, DC 

In the Matter of: KYLE PONSFORD 

FAA Order No. 2010-3 

Docket No. CP09AL0007 

FDMS No. FAA-2009-0729' 

Served: April 28. 2010 -J 

ORDER DISMISSING APPEAL 

AND REMANDING CASE 

TO THE ADMINISTRATIVE LAW .RJDGE^ 

On November 9, 2009, Adminislrative Law Judge Richard C. Goodwin (ALJ) 

issued the Order Deeming Allegations Admitted and Limiting Proceeding to Issue of 

Civil Penally ("Order Deeming Allegations Admitted") as a result of the failure of the 

re.spondcnt, Kyle Ponsford ("Ponsford") to file an answer. On March 8, 2010, Ponsfor 

appealed lo the Administrator from the Order Deeming Allegations Admitted. Ponsfoi 

does not have the right to appeal to the Administrator from the Order Deeming 

Allegations Admitted and, therefore, this case is remanded to the ALJ for proceedings 

consistent with this order. 

I. History of the Case. 

On July 27. 2009, the FAA filed the Complaint, alleging that Ponsford, a ticket< 

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' Generally, materials filed in ihe FAA Hearing Docket (except for materials filed in security 

cases) are also available for viewing at http.VAvww.regulations.gov. See 14 C.F.R. 

§ 13.210(eXl). 

^ The Administrator's civil penalty decisions, along with indexes of the decisions, the rules of 

practice, and other infomiation, are available on the Internet at the following address: 

wwyv.faa.gov/aboui/uffice_org/headquariersj)ffices/agc/poljidjudlcaUon/AOC400/ 

Civil_^_Penalty. See 14 C.F.R. § 13.2]0(e)(2)7 In addition, Thomson Reuters/West publishes 

Federal Aviation Decisions. Finally, the decisions are available through LEXIS (TRANS librai 

and WeslLaw (FfRAN-FAA database). For additional information, see the Web site. 
* OMS 

passenger on an Alaska Airlines flight, had offered as checked baggage a bag containing 

a 3.53-ounce canister of Jetboil Jetpower Isobutane/Propanc Fuel Mix and two 15.9-

ouncc canisters of Primus Power Gas 4 Season Mix. The FAA alleged that these items 

arc classified as hazardotos materials under the Hazardous Materials Regulations (HMR), 

and that the bag was neither accompanied by shipping papers, nor labeled or marked to 

indicate that it contained bazardotis materials. The FAA alleged that Ponsford had 

violated multiple sections of the HMR and sought a $1,000 civil penalty.^ 

On August 20, 2009, the ALJ issued a procedural order in which he explained that 

under 14 C.F.R. § 13.209, the respondent must file a written answer or motion vvithin 30 

days after service of the complaint, and that failure to file an answer without good cause 

is deemed an admission of the allegations in the complaint. Ponsford did not file an 

answer to the complaint. 

On October 5,2009, the FAA filed a motion to deem the allegations of the 

complaint. Tlie FAA argued that an order deeming the allegations admitted was ju-stiiled 

based upon Ponsford's failure to file an answer and Ponsford's admission in a letter dated 

July 7, 2009, that he had been a passenger on the alleged flight and had checked the bag 

containing ftiel cells. Ponsford did not respond to this motion. 

On October 22, 2009, the ALJ issued the Order to Show Cause, in which he 

ordered as follows: 

(I) On Of before October 30, 2009, Respondent shall show cause why the relief 

requested in Complainant's Motion should not be granted; 

j The FAA alleged that the proper shipping name of these items is "Petroleum gas, liqvietied;" 

1 that these items are forbidden on passenger aircraft, that transportation by aircraft of Jetboil 

I Jetpower Isobutane/Propane Fuel Mix is prohibited, and that shipment by air of Primus Power 

I Gas 4 Season Mix is limited to cargo aircraft only. 
+ DMS 121003/005 

04/29/2010 09:48 FAX 2024935142 FAA 

(2) On or before October 30, 2009, Respondent shall file a proper answer lo the 

Complaint; 

(3) Absent such a filing by Respondent on or before October 30,2009, an order 

may be entered deeming the allegations of the Complaint admitted, and ftjrther, 

limiting the proceeding to the question of the amount of the civil penalty. 

(Order To Show Cause at 2.) 

Ponsford replied to the Order to Show Cause by letter dated October 28, 2009." 

He v/rote that he had responded to the allegations in the complaint in previous letters, 

such as liis letter date July 7, 2009. He wrote that he did not have time to answer each 

line item in the Complaint because "winter is coming fast." 

On November 9, 2009, the ALT issued his Order Deeming Allegations Admitted, 

He wrote that Ponsford had failed to file an answer and had not responded to the Motion 

lo Deem Allegations Admitted. Apparently unaware of Ponsford's letter dated 

October 28, 2009, the ALJ wrote thai Ponsford also had failed to respond lo the Order to 

Show Cause, The ALJ deemed the allegations admitted by Ponsford, granted ihe FAA's 

motion, and limited the proceeding to the issue of the appropriate amount of civil penally 

to be assessed, On January 13,2010, the ALJ scheduled this matter for hearing on 

June 29, 2010, in Juneau, Ala.ska. 

Ponsford filed his appeal from the ALJ's Order Deeming Allegations Admitted by 

letter dated March 8, 2010. The FAA filed its reply on March 31, arguing that the 

Administrator should dismiss Ponsford's appeal because the ALJ had not yet issued an 

initial decision, and Ponsford was neither entitled to file an interlocutory appeal of right, 

nor had obtained the ALJ's permission to file an interlocutory appeal for cause. 

" The Hearing Docket received the letter on November 5, 2009. 
04/29/201 0 09:4 9 FAX 2024935142 FAA + DMS 0004/005 

II. Analysis. 

Section 13.219(a) of the Rules of Practice in Civil Penally Proceedings, 14 C.F.R. 

§ 13.219(a), provides: "Unless otherwise provided in this subpart, a party may not appeal 

a mling or decision of the administrative law judge to the FAA decisionmaker tintil the 

initial decision has been entered on the record." The ALJ has not yet issued an initial 

decision in this matter. Although the ALJ has deemed the allegations admitted, he has 

not set a civil penally for the alleged violations. Hence, at this juncture, Ponsford's only 

avenue for appealing to the Administrator, if any, would be under the rule pertaining to 

interlocutory appeals, 14 C.F.R. § 13.219(b)-(d). 

There are two types of interlocutory appeals: interlocutory appeal of right and 

interlocutory appeal for cause. Section 13.219(c) permits a party lo file an interlocutory 

appeal of right to the Administrator • before the issuance of an initial decision without 

first obtaining the permission of the ALJ to file the appeal - in three circumstances: 

(1) an order by the ALJ barring a person from the proceedings; 

(2) the failure of the ALJ to dismiss the proceedings wdth prejudice as required 

under 14 C.F.R. § 13.215 if the agency attorney withdraws the complaint and/or 

the respondent withdraws the request for hearing; 

(3) a ruling or order by the ALJ that exceeds the limitation set forth in 14 C.F.R. 

§ 13.205, by imposing a sanction not specified in 14 C.F.R. Part 13, subpart G. 

The ALJ's Order Deeming Allegations Admitted did not bar any person Irom the 

proceedings, the FAA did not withdraw ihe complaint, and Ponsford did not withdraw his 

request for hearing. The ALJ did not impose a sanction that is not permitted under the 

Rules of Practice because an order deeming allegations admitted is permitted tmder 
04/29/2010 09:48 FAX 2024935142 FAA •» DMS 121005/005 

14 C.F.R. § 13.209(f) if a person fails to file an answer without good cause.^ Hence, 

Ponsford is not entitled to file an interlocutory appeal of right under 14 C.F.R. 

§ 13.219(c). 

A party may request permission fi"om an ALJ to file an interlocutory appeal for 

cause, and an ALJ will gram such a request if "a party shows that delay of the appeal 

would be detrimental to the public interest or would result in undue prejudice to any 

party." 14 C.F.R. § 13.219(b). It is not necessary to decide whether the ALJ should have 

granted a request to permit Ponsford to file an interlocutory appeal for cause because 

Ponsford never requested the ALJ's consent. 

Consequently, Ponsford's appeal to the Administrator from the ALJ's Order 

Deeming Allegations Admitted is disinissed, and the case is remanded to the ALJ for 

further proceedings. Before the hearing, the ALJ should consider Ponsford's letter, dated 

October, 28, 2009, and determine whether in that letter Ponsford established good cause 

for failing to file an answer. 

J. RANDOLPH BABBITT 

ADMINISTRATOR 

Federal Aviation Administration 

VICKI S. LEEMON" 

Manager, Adjudication Branch 

^ Section 13.209(f) provides: "[aj person's failure to file an answer without good cause shall be 

deemed an admission of the truth of each allegation contained in the complaint." 

* Issued under authority delegated to the Chief Counsel and the Assistant Chief Counsel for 

Litigation by memorandum dated Oeiober 27, 1992, under 49 U.S.C. § 322(b) and 14 C.F.R. 

§ 13.202 (see 57 Fed. Reg. 58,280 (1992)) and redelcgated by the Assistant Chief Counsel for 

Litigation to the Manager, Adjudication Branch, by Memorandum dated August 6, 1993.