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UNITED STATES OF AMERICA 

FEDERAL AVIATION ADMINISTRATION 

WASHINGTON, D.C. 

RECEIVED 

JUN- 3 2013 

HEARING DOCKET 

In the matter of 

FEDERAL AVIATION 

ADMINISTRATION, 

v. 

SCOTT NOVAK 

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FAA Docket No. TBA 

FDMS No. FAA-20012-0206 

COMPLAINANT'S APPEAL BRIEF 

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Pursuant to 14 C.P.R. § 13.233(d), Complainant submits this Appeal Brief which 

perfects Complainant's appeal of the Initial Decision of Administrative Law Judge 

Richard C. Goodwin (the "ALJ") issued on April 11, 2013, in the above captioned matter. 

I. STATEMENT OF THE CASE 

Complainant served Scott Novak ("Respondent") with a Notice of Proposed Civil 

Penalty on March 19, 2012, in the amount of$2,700, for violations ofthe Department of 

Transportation Hazardous Materials Regulations ("HMR"). Respondent requested a 

hearing on April6, 2012 and Complainant filed the Complaint on April10, 2012. In the 

Complaint, Complainant requested that the ALJ assess a civil penalty in the amount of 

$2,700 for Respondent's violations of the HMRs. Respondent filed his Answer on May 8, 

2012. 

On May 7, 2012, a Notice of Assignment of Proceeding was issued naming the 

ALJ to preside over the hearing. On September 25, 2012, a hearing for this matter was 

held in Juneau, AK, before the ALJ. Complainant filed its Closing Argument on 
November 23, 2012. Respondent filed his Post Hearing Brief on January 8, 2013, and 

Complainant filed its Rebuttal Brief on January 30, 2013. The ALJ served his Initial 

Decision on April11, 2013 and Complainant filed its Notice of Appeal on April19, 

2013. 

II. STATEMENT OF FACTS 

On December 22, 2011, Respondent offered several items for transportation by air 

via Alaska Airlines. Tr. 179: 6-9. Respondent had travelled to Anchorage, AK, in order to 

assist his daughter and son-in-law in their move to Juneau, AK, and planned on carrying 

their goods in his truck. Tr. 184-16-19; 185-86: 3-14. Respondent's daughter packed 

household items, including hazardous materials, in several boxes. Tr. 176: 6-9. 

Respondent was present when Respondent's daughter sealed the boxes. Tr. 180: 9-11. 

Respondent never asked his daughter what was contained in the shipment and he never 

looked into the contents ofthe shipment. Tr. 176: 12-22; 179-80: 22-11. Respondent 

realized that the amount of items exceeded the capacity ofhis truck so he inquired with 

Alaska Airlines about shipping the items by air. Tr. 185-86: 19-8. He was informed that 

Alaska Airlines could ship household goods by air freight so he elected to drop the items 

at the Alaska Airlines' cargo facility in Anchorage, AK. Id. 

The shipment consisted of eleven pieces that were placed on four pallets. Tr. 60: 

12-18. The eleven pieces were made up of several boxes, a mattress, and a grill. /d. The 

grill was not covered or boxed. Tr. 186: 2-8; 194: 1-20. When Respondent was asked by 

an Alaska Airlines employee what was in the shipment, he stated that it contained 

"furniture and household stuff." Tr. 191-92: 21-2. He then filled out paperwork for the 

shipment and checked a box indicating there were no "dangerous goods" in the shipment. 

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Tr. 192: 13-17. Respondent then began the process of paying for the shipment by credit 

card which included several questions presented in the credit card machine, including a 

screen requesting that the offeror initial that the shipment "[ d]oes not contain any 

hazardous materials," to which Respondent answered "no and initialed." Tr. 199: 17-22; 

200: 8; 201: 11-15; Ex. A-19. Alaska Airlines has posters alerting persons in the intake 

area of the dangers of hazardous materials and what may be considered as hazardous 

materials. Tr. 63: 9-16; 83-84: 10-17; Ex. A-27; Ex. A-28; Ex. A-29. 

Subsequent to Respondent offering the items for shipment by air transportation, 

an employee for Alaska Airlines screened the grill that was part of Respondent's 

shipment and discovered lighter fluid and bug spray contained therein. Tr. 30-31: I2-7; 

Ex. A-3; Ex. A-4. This necessitated a full screening ofthe entire shipment, which 

uncovered hairspray, nail polish, nail polish remover, and shaving cream in addition to 

what was found in the grill. Tr. 31-31: 8-I1; Ex. A-5; Ex. A-6. Neither the air waybill nor 

the accompanying documents contained a declaration as to the hazardous materials being 

included in the shipment. Tr. 51-52: 17-9; Ex. A-7; Ex. A-8; Ex. A-9. Further, an 

employee for Alaska Airlines indicated that they had checked the shipment for dangerous 

goods markings and "went over [dangerous goods] trigger terms with customer." Ex. A9. 

Jeffery Dietz, special agent and dangerous goods specialist for the FAA, was 

notified by Alaska Airlines of the hazardous materials found in Respondent's shipment. 

Tr. 96: 6-14. Special Agent Dietz took pictures ofthe shipment and compiled the 

paperwork associated with the shipment. Tr. I 04: 1 O-I6; I 05: 8-11. Among the 

documents that Special Agent Dietz collected was the air waybill, which did not include 

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an associated declaration of dangerous goods. Tr. 105:4-16. He also compiled the 

relevant Material Safety Data Sheets ("MSDS") for the hazardous materials found in the 

shipment. Tr. 105-07: 17-18; Ex. A-20; Ex. A-21; Ex. A-22; Ex. A-23; Ex. A-24; Ex. A25. 

On December 27, 2011, Special Agent Ditz sent Respondent a letter of 

investigation notifying him ofthe hazardous materials found in the shipment. Tr. 111-15: 

8-19; Ex. A-15. Special Agent Dietz recommended a sanction based on the violations of 

the HMR by using FAA Order 2150.3B and applying the sanction matrix contained 

therein. Tr. 120-21: 4-2; Ex. A-26. Special Agent Dietz evaluated the evidence and 

determined that it supported the conclusion that Respondent had committed violations in 

the following offense categories contained in FAA Order 2150.3B, Appendix C, Figure 

C-1: shipping papers, labeling, marking, packaging, and emergency response. Tr. 126-28: 

14-2. 

In his Answer, Respondent admitted that he received and responded to the Notice 

of Proposed Civil Penalty. Answer at 1. Respondent "conditionally" admitted that a 

shipment with Air Waybill No. 027-8385-7546 was described as consisting of 

"FURNITURE, MATTRESS," and the block declaring that the shipment did not contain 

hazardous materials was initialed. Id. In his Answer, Respondent used the phrase 

"conditionally admitted" in his responses to the allegations contained in the Complaint. 

The rules of practice in FAA civil penalty proceedings contained in 14 C.F.R. part G, do 

not recognize such a response as appropriate. 14 C.F.R. § 13.209(e) requires that a 

"person filing an answer shall admit, deny, or state that the person is without sufficient 

knowledge or information to admit or deny, each numbered paragraph of the complaint." 

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Further, "[a]ny statement or allegation contained in the complaint that is not specifically 

denied in the answer may be deemed an admission of the truth of that allegation." !d. As 

such, the responses contained in the Answer that use the phrase "conditionally admitted" 

should be deemed as admitted. Respondent admitted that nail polish is classified as a 

hazardous material under the HMR, its proper shipping name is "Paint", it is in hazard 

class 3 (Flammable liquids) and packing group II, and has an assigned identification 

number ofUN1263. Answer atl. See also Ex. A-20; 14 C.P.R.§ 172.101. Respondent 

admitted that nail polish remover is classified as a hazardous material under the HMR, its 

proper shipping name is "Acetone Solutions", it is in hazard class 3 (Flammable liquids) 

and packing group II, and has an assigned identification number ofUN1090. Answer at 

1. See also Ex. A-21; 14 C.F.R. § 172.101. Respondent admitted that charcoal lighter 

fluid is classified as a hazardous material under the HMR, its proper shipping name is 

"Petroleum Distillates, N.O.S.", it is in hazard class 3 (Flammable liquids) and packing 

group II, and has an assigned identification number ofUN1268. Answer at1. See also Ex. 

A-22; 14 C.P.R.§ 172.101. Respondent admitted that Moroccanoil Hairspray, Gillette 

Fusion Hydra Gel, and Repel Insect Repellant are classified as hazardous materials under 

the HMR, their proper shipping name is "Aerosols, flammable", they are in hazard class 

2.1 (Flammable gas), and have an assigned identification number ofUN1950. Answer 

atl. See also Ex. A-23; Ex. A-24; Ex. A-25; 14 C.F.R. § 172.101. Respondent also 

admitted that lighter fluid, insect repellant, hairspray, fingernail polish, and fingernail 

polish remover are household items. Tr. 206: 8-19. 

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III. ALJ's WRITTEN DECISION 

The ALJ dismissed the Complaint. Initial Dec. at 2. The ALJ found Respondent 

offered six items of hazardous materials for transportation by air. /d. The hazardous 

materials that were discovered consisted of 16 bottles of nail polish, a 32-ounce bottle of 

charcoal lighter fluid; a 10-ounce can ofhairspray, a 7-ounce can of shaving cream, and a 

6.5-ounce can of insect repellant. /d. The ALJ found the items are classified as hazardous 

materials under the HMRs and that "the shipment was offered undeclared-that is without 

any warning or notice ofthe hazardous nature of its contents." /d. at 3-4. The ALJ also 

found that the parties agreed that Respondent was not aware of the contents of the 

shipment. Jd; 

The ALJ addressed the issue of whether Respondent "knowingly offered" the 

hazardous materials for shipment by air within the meaning of Section 5123(a)(1) ofthe 

Federal hazardous materials law, 49 U.S.C. § 5123(a)(1). /d. He found that Respondent 

did not. /d. Section 5123(a)(l) provides that a person acts knowingly when- (A) the 

person has actual knowledge of the facts giving rise to the violation; or (B) a reasonable 

person acting in the circumstances and exercising reasonable care would have that 

knowledge. /d. Addressing the first prong of reasonable care under the statute, the ALJ 

found that Respondent had no actual knowledge that he offered hazardous materials. /d. 

Upon analyzing the second prong of reasonable care, the ALJ held that the statute created 

a duty upon Respondent "to make a reasonable inquiry into the material he was shipping" 

and that "the nature of the inquiry depended on the surrounding circumstances." /d. The 

ALJ ultimately found that Respondent made a sufficient inquiry. /d. 

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In making this determination, the ALJ stated that Respondent was moving his 

daughter's personal effects and that the "goods customarily associated with a household 

move" such as this, constitute "furniture, bedding and the like," and "are considered 

innocuous from an air transport standpoint." !d. The ALJ found that Respondent had "the 

right to rely on his daughter's general description of the contents of the shipment", and 

had "no reason to inquire or look further." Id. 

The ALJ noted that liability cannot be imputed in this case because to do so 

would be to enforce a standard of strict liability for the violations. Id. at 5. In support, the 

ALJ stated that Respondent had no reason for further inquiry as Respondent testified that 

he did not see any warning signs posted and no employee for Alaska Airlines asked him 

if he was tendering such goods. !d. 

Finally, the ALJ stated that the hazardous materials that were involved here are 

"customarily characterized as household or consumer goods." Id. He noted that the items 

were flammable and that they "could produce a grave situation aboard an aircraft." Id. 

However, in this case, the ALJ believed that the Respondent "reasonably did not know 

what he was shipping." Id. 

IV. STANDARD OF REVIEW 

On appeal, the FAA Decisionmaker considers whether each finding of fact is 

supported by a preponderance of reliable, probative, and substantial evidence, and 

whether each conclusion oflaw is made in accordance with applicable law, precedent, 

and public policy. 14 C.F.R. § 13.233(b)(l)-(2). 

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V. STATEMENT OF THE ISSUE 

I 

Whether the ALJ erred in finding that Respondent did not knowingly offer a 

shipment containing hazardous materials for transportation by air. 

VI. ARGUMENT 

The ALJ erred in finding that Respondent did not knowingly offer a shipment 

containing hazardous materials for transportation by air. 

The ALJ found that Respondent offered six items of hazardous materials for 

transportation by air but that Respondent did not knowingly offer said materials. Initial 

Dec. at 2, 6. Complainant submits that the ALJ erred in dismissing the Complaint 

because his finding that Respondent did not knowingly offer the hazardous materials for 

transportation by air was not supported by a preponderance of the reliable, probative, and 

substantial evidence. 

A. The test for determining whether Respondent acted knowingly when he 

offered hazardous materials for transportation by air is contained in 49 

U.S.C. § 5123(a)(l). 

The test for determining whether Respondent acted knowingly when offering, 

accepting, or transporting hazardous materials in commerce is set forth in 49 U.S.C. 

§ 5123(a)(l). Section 5123(a)(l) provides, "[a] person acts knowingly when: (A) the 

person has actual knowledge of the facts giving rise to the violation; or (B) a reasonable 

person acting in the circumstances and exercising reasonable care would have that 

knowledge." Section 5123(a)(1) "is a statute that 'requires inquiry and treats a person as 

possessing whatever knowledge inquiry would have produced ... . "In re Interstate 

Chemical Comp., Inc., FAA Order No. 2002-29,2002 WL 31957045 at *7 (Dec. 6, 2002) 

(citing Contract Courier Services, Inc. v. Research & Special Programs Admin., US. 

Dep 't ofTransp., 924 F.2d 112,114 (7th Cir. 1991). 

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B. The ALJ erred in finding that Respondent made a sufficient inquiry as to 

the contents of the shipment. 

The critical issue under Section 5123 (a)(l), as framed by the ALJ, is whether 

Respondent, as a reasonable person acting in the circumstances, would have known that 

in the exercise of reasonable care he was offering hazardous materials for transportation 

by air. Initial Dec. at 4. As the ALJ held, "[t]he statutory mandate to exercise 'reasonable 

care' created a duty on [Respondent] to make some kind of inquiry into the material he 

was shipping. The nature of the inquiry required depended on the surrounding 

circumstances." Jd 

The record in this proceeding demonstrates that Respondent failed to satisfy the 

requirement to exercise reasonable care, in that he made no inquiry into the materials he 

was shipping. Respondent knew that his daughter was moving all of her household goods 

from Anchorage, AK, to Juneau, AK, and was present when his daughter was sealing the 

boxes that contained her household goods. Tr. 184: 15-22; 180: 3-11. Respondent also 

was aware that lighter fluid, insect repellant, hairspray, fingernail polish, and fingernail 

polish remover are considered household items and he was not surprised that they were 

included in the shipment. Tr. 206: 8-19. Moreover, the ALJ acknowledged that these 

items regularly constitute "household goods." Initial Dec. at 5. Respondent also was 

aware that he was offering a propane grill for transportation by air as he unloaded an 

unwrapped, unboxed, and unconcealed grill at Alaska Airlines. Tr. 186: 2-12. 

Despite Respondent's knowledge that he was shipping the entire contents ofhis 

daughter's home, that he was not surprised that hazardous materials-lighter fluid, insect 

repellant, hairspray, fingernail polish, and fingernail polish remover-were included in 

the household items he offered to Alaska Airlines, and that he was offering an 

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unpackaged grill to Alaska Airlines, Respondent never asked his daughter what was 

contained in the shipment and he never looked into the contents of the shipment. Tr. 176: 

12-22; 179-80: 22-11. Respondent's daughter testified that "(h]e didn't look inside any of 

the boxes or ask what was inside them." Tr. 180: 9-11. She further testified that " ... he 

never asked me, and I never told him if there was hairspray or any kind of flammable or 

hazardous material in there." Tr. 176: 20-22. Even when offering an unpackaged propane 

grill, the sole purpose of which is to use flammable materials to produce flame, he chose 

to abandon his duty to exercise reasonable care and blindly offered the shipment for air 

transportation. Far from a performing a reasonable inquiry into the contents of the 

shipment, Respondent performed no inquiry at all, thereby demonstrating a conscious 

disregard for the dangers that readily were apparent to a reasonable person under the 

circumstances discussed above. The above-described facts and circumstances 

demonstrate that Respondent made a conscious decision not to perform any inquiry into 

the contents ofthe shipment. 

Even though the record is bereft of evidence establishing that Respondent made 

any inquiry at all into the contents of the shipment, the ALJ found that Respondent was 

reasonable in believing that "goods customarily associated with household moves, such 

as furniture, bedding, and the like, constituted the contents of the shipment." Initial Dec. 

at 4. The ALJ found that Respondent was reasonable in believing "that he was shipping 

household goods", that he had "the right to rely on his daughter's general description of 

the contents of the shipment," and he had "no reason to inquire or look further." Id. The 

ALJ's findings, however, are not supported by the evidence and are contrary to the 

requirement in Section 5123 (a)(1) that the exercise of reasonable care requires 

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Respondent to make some kind of inquiry into the material he was shipping. 

Respondent's belief that he was shipping household goods does not satisfy the test under 

Section 5123(a)(l), articulated by the ALJ, that "[t]he statutory mandate to exercise 

'reasonable care' created a duty upon [Respondent] to make some kind of inquiry into the 

material he was shipping." Id. In view of the foregoing, the ALJ erred in finding that 

Respondent did not knowingly offer the hazardous materials to Alaska Airlines for 

transportation by air. 

C. There is no duty to warn regarding violations of the HMRs. 

The ALJ further supported his finding that Respondent did not knowingly offer 

the hazardous materials for air transportation by stating that Respondent did not see any 

warning signs at Alaska Airlines and that there was no evidence that Alaska Airlines 

employees inquired as to whether the shipment contained such materials. Initial Dec. at 5. 

However, there is no duty to warn associated with these violations. Fed Aviation Admin. 

v. Todd Kaden, 2006 WL 1748267 at *3 (June 22, 2006). Notwithstanding that Alaska 

Airlines did not have a duty to warn, the evidence clearly shows that signs warning 

offerors about shipping hazardous materials were posted within the area of the Alaska 

Airlines facility where Respondent dropped his shipment off, and that Respondent also 

was prompted regarding the existence of hazardous materials during the process of filling 

out paperwork for the shipment. Tr. 63: 9-:-16; 83-84: 10-17; 192: 13-17; 199: 17-22; 200: 

8; 201: 11-15; Ex. A-9; Ex. A-19; Ex. A-27; Ex. A-28; Ex. A-29. 

VII. CONCLUSION 

Respondent clearly did not make any attempt at a reasonable inquiry into the 

contents of the shipment he offered for air transportation. He was well aware that he was 

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moving the entire contents of his daughter's house and that hazardous materials are 

among the types of materials that are considered household goods. He also did not ask his 

daughter about the contents of the shipment although he was present during the packing 

and sealing of the packages that comprised the shipment. Even a minimum amount of 

inquiry, such as opening the drawer of the unpackaged grill or asking his daughter 

whether she packed such items as nail polish remover, hairspray, shaving cream, etc., 

would have revealed the existence of the hazardous materials. Further, he was asked 

about the existence of hazardous materials in the shipment by Alaska Airlines and 

responded that they were not included in the shipment when he never examined or 

inquired into the contents of the shipment. The evidence shows that Respondent exhibited 

a conscious disregard of his duty to attempt even a minimum inquiry into the contents of 

the shipment he offered for air transportation. Therefore he did not act as a reasonable 

person acting in the circumstances and exercising reasonable care. 49 U.S.C. 

§ 5123(a)(l). In view ofthe forgoing, the ALJ erred in finding that Respondent did not 

act knowingly under Section 5123(a)(l) because this determination is not supported by 

the preponderance of the reliable, probative, and substantial evidence. 

For all ofthe foregoing reasons, Complainant respectfully requests the FAA 

Decisionmaker to reverse the ALJ' s Initial Decision and affirm the Administrator's 

Complaint in its totality. 

[Signature Page Follows} 

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Dated: May 31,2013 

Respectfully submitted, 

Peter Lynch 

Assistant Chief Counsel 

for Enforcement 

By:CJ!2 

Charles Raley, Attorney 

Enforcement Division, AGC-300 

Office ofthe Chief Counsel 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Phone: (202) 267-3357 

Facsimile: (202) 267-5106 

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Certificate of Service 

I hereby certify that on this date I have served by certified mail, one original and 

two copies of Complainant's Appeal Brief In re Scott Novak, FDMS No. F AA-2012-

0206, to: 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, D.C. 20591 

Attn: FAA Decisionmaker, AGC-430 

Wilbur Wright Building- Suite 2W1000 

In addition, I hereby certify that on this date I have sent one copy of the foregoing 

document by certified mail to: 

Joseph W. Geldhof, Esq. 

2 Marine Way, Suite 207 

Juneau, AK 99801 

Dated: May 31,2013