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SERVED NOVEMBER 10, 2011 'RANSPORTATION 

• •JCKETOFERATIOMS 

UNITED STATES DEPARTMBNT OF TRANSPORTATION "^'^'^'^ iJO^ ''-I A 9; 5 8 

OFFICE OF HEARINGS 

WASHINGTON. D.C 

Application of 

SMITH CABLE SYSTEMS, INC. 

FAA DOCKET NO. |TO BE ASSIGNED], successor to CP()9AL0012 

DMSNo. rAA-20II--IOIO, successor rni-AA-2n09-Oy76 

(Equal Access to Justice Aclion) 

INITIAL DECISION 

DENYING APPLICATION FOR ATTORNEY'S FEES 

AND OTHER EXPENSES 

I. Backgroun d 

Sinirh Cable Systems, Inc. ("Smith Cable") is an Alaska-based company which 

installs cable and telephone systems, gas lines, and the like. This application under the 

Equal Access to justice Act, 5 U.S.C. 5504, originated in a proceeding in which the 

Federal Aviation Administration ("FAA" or "the agency") charged Smith Cable with 

various violations of the Department oFTransportation's Hazardous Materials 

Regulations ("HMRs"). The allegations in the underlying proceeding originated in a 

shipment of dangerous goods Smith Cable had offered to Alaska Airlines. The shipment 

had been undeclared. ' The agency had sought a civil penalty of $60,000. 

Following an oral evidentiary hearing, on August 3, 2011 I issued an initial 

Decision ("I.D.") in which Ifound that the FAA had not proven the allegations. I 

dismissed the Complaint (Federal Aviation Admimstratiou v. Smith Cabk Systems, Inc.. FAA 

Docket No. CP09AL0012, Initial Decision of Administrative Law Judge Richard C. 

Goodwin). Neither party appealed. The case became administratively final. 

Smith Cable then filed an application for attorney's fees and other expenses 

under the Equal Access tojusticc Act ("EAJA" or "the Act"), 5 U.S.C. 5504, and 

implementing regulations 14 C.F.R. Part 14. The agency answered in opposition. For 

the reasons set forth below. 1 deny the application. 

' "Undeclared" means that the shipment had not met marking and labeling requirements for the air 

transportation of hazardous materials. The agency had charged Smith Cable with violating sixteen HMRs: 

49 CFR§§ 171.2(e), l72.200(aK 172.20Ud), 172.202(aXl)-(a)(3), 172.202(aK5), 172.20:^(0. 172.204(a), 

172.204(c)(2), 172.204(c)(3). 172.300(a). 172.301(a), 172.400(a), 172.604(a), and 173.27(b)(1). 
11. Decision 

Siiiith Cable's application inust be denied because tlie FAj A statute does not 

apply to this case. Smith Cable is not permitted to seek relief under it. 

The EAJA simply does not apply to hazardous materials cases. Dominion Conccpli,, 

inc., FAA Order No. 2005-4, 2005 \VL 916050 (March 10, 2005), p. 5. As the 

Administrator explained, the fiAJA statute applies only where Congress "has clearly 

expressed its intent" that procecchngs be governed by the Administrative Procedure Act. 

The hazardous materials statute under which this case was brought, 49 U.S.C. 555101-

5128, docs not clearly express such an iiitcnt. Applying the EAJA to cases arising under 

the hazardous materials statute would contravene Congress' intent. The Administrator 

also points out that the agency's holding is made with due regard for the principle that 

"there is a presumption against waivers of sovereign immunity, and the courts strictly 

construe such waivers [footnotes omitted]." Dominion Concc{.ns, Inc., (xS; see discussion,lip. 5-8. 

For the reasons stated above. Smith Cable may nor seek EAjA relief. As such, I 

deny the application.-

S

:hard C. Goodwin 

ministrativc Law Judge 

AllachmeiU - Service List 

^ This decision becomes final 30 days after its issuance unless a party appeals or the FAA Decisionmaker 

takes review under his or her own initiative. 14 CFR § 14.28(a). The appeal must lie either (a) mailed to the 

Federal Aviation Administration, 800 Independence Avenue, S.W.. Washington, O.C. 20591, Attention: 

Hearing Docket Clerk, AGC-430, Wilbur Wright Building - Sviiie 2W lOOO; or (b) delivered personally or 

via expedited courier service to the Federal Aviation Administration. 600 Independence Avenue, S.W., 

Wilbur Wright Building - Suite 2W1000. Washington. D.C. 20591, Attemion: Hearing Docket Clerk. 

AGC-430. 
FDMS No. FAA-20n-lOIO 

(Equal Access to Justice Act) 

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 2W1OOO' 

ONE COPY 

Ronald G. Smith, President 

Smith Cable Systems, Inc. 

Through Counsel 

Brent R. Cole, Applicant's Counsel 

Marston & Cole, P.C. 

821 N Street, Suite 208 

Anchorage, AK 99501-2136 

TEL-. 907-277-8001 

FAX: 907-277-8002 

Craig Wm. Black, Agency's Counsel 

Office of the Regional Counsel, AAL-7 

Alaskan Region 

Federal Aviation Administration 

222 West Seventh Avenue, Box 14 

Anchorage, AK 99513-7587 

TEL: 907-271-3570 

FAX: 907-271-2800 

The Honorable Richard C. Goodwin, Administrative LOM'Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. 

Washington, DC 20590 

TEL: 202-366-2139 Attorney-Advisor 

202-366-5121 Legal Assistant 

FAX: 202-366-7536 

' Ser\'ice was by U.S. Mail. For service in person or by expedited courier, use tlic foMowing address: 

Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building- Suite 2W1000, 

Wasliington. DC 20591, Attention: Hearing Docket Clerit, AGC-430. 

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