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### 27 28 Law Office ofJoseph W. Geldhof 2 Marine Way, Suite 207 Juneau, Alaska 99801 Telephone: (907)586-8193**E~mail:**joeg@alaska.com Counselfor Respondent ScottNovak 

# RECEIVED .JUl1l21)B HEARING DOCKET UNITED STATES OFAMERICA U.S. DEPARTMENT OFTRANSPORTATION

FEDERAL AVIATIONADMINISTRATION In the Matter of: FEDERALAVIATIOIN ADMINISTRATION 

### ScottNovak, Respondent. ) ) ) ) ) ) ) FAA .DocketNwnber: Currently Unassigned

Case No.: FAA-2012-0206

RESPONDENT'S RESPONSIVE APPEAL BRIEF



### Introduction Respondent, Scott Novak, through counsel, files his responsivP brief in the abovecaptioned appeal. At issue inthis appeal is whether ornot Administrative Law Judge ("ALI") Richard C. Goodwin's decision dated Aprilll, 2013 in this matter is contrary to federal law

or regulations or whether the ALJ rendered a decision in this case based on an erroneous factual determination. 

### Argument

Scott Novak believes ALI Goodwin's determination that he did not "knowingly" ship or intend to ship materials that are classified as "dangerous" or "hazardous" according to federal law or regulations is correct. Indeed, ALI Goodwin's determination that Novak did not knowingly offer to ship hazardous or dangerous materials is completely grounded in a thorough understanding offederal law and regulatoryrequirements as well as the specific facts of the situation in this dispute

-- a conclusion that is hardly surprisin,- given that the ALI Respondent's Responsive AppellateBrief FAA vs. ScottNovak FDMS No. FAA-2012-0206

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### 26 27 28 presided over a full-blown evidentiaryhearing and had thebenefit ofcompletebriefingbythe Federal Aviation Administration's regional counsel as well as counsel for the respondent. ALJ Goodwin's written determination issued on April 11. 2013 addressed the specific legal claims the FAA now seeks to overturn and also thoroughly addressed the factual points and legal contentions theFAAnow seeks to review. In largepart, theinstant appealbythe Federal Aviation Administration ("FAA"), essentially seeks to overturn ALJ Goodwin's thoughtful and comprehensive determinationbyrearguing and amplifYing points made previously during the hearing and without specificallypointing out where the ALJ failed to follow relevant law

or misapplied facts. Worse, from Mr. Novak's perspective, the appeal now advanced by the FAA seeks to establish certain events that either distorts reality or which are not part ofthe underlying record inthis dispute. The issue central to this dispute and the fundamental questionthat must decided inthis

case is whether or not Scott Novak "knowingly'' violated the regulatcry provisions in the United States Code ofFederal Regulations. The requirement thatthe government show mens

rea in order to establish a violation by Scott Novak is specifically and obviously set out as a legal requirement in federal law. The Federal Aviation Administration (FAA) "may assess a civil penalty against any person who lmowingly commits an act in violation of 49 U.S.C. Chapter 51 or a regulation prescribed or order issuedunderthat chapter. .."1 The government failed to present credible evidence that Scott Novak knowingly intended to ship items categorized hazardous or dangerous according to the federal standards governing shipment of potentially harmful substances on aircraft at the hearing in this case. What the evidence adduced at the administrative hearing showed was that Scott Novak intended to ship his daughter's household items via Alaska Airlines air cargo to Juneau, Alaska. [Complainallt's



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### 26 27 28 Appeal Briefat pg. 2; 

### Transcript 176; 6-9]. Contrary to the assertion ofComplainant, Mr. Noval' was not present when his daughter sealed the boxes that were eventually delivered to Alaska Airlines for shipmentto Juneau, Alaska. 

### [See, e.g., Complainant'sAppealBrief atpg. 2]. What ALJ Goodwin found and what formed the essential basis of the judge's factual conclusions was that Scott Novak was preparedto assist withhis daughter's moving adventure and was willing to pay for the shipment but thathe was unaware ofthe contents ofthe boxes subsequently offeredfor shipmentvia air carriage. ALJ Goodwin determined that the boxes prepared and sealedbyNovak's daughter for shipment to Juneau had been originally boxed up and readied for transport with the understanding that the household goods would be transported via Novak's pickup truck. When the contents ofNovak's daughter were found to exceed the capacity ofhis truck, Novak and his daughter decided to ship the excess household goods via Alaska Airlines, a practice that Mr. Novak had utilized in the past and a practice that the daughter agreed to once her father told herhe wouldpayfor the air freight costs. Subsequent inspection ofthe contents ofthe boxes filled and sealed by Scott Novak's daughter revealed finger nail polish, hair spray, shaving cream and other materials that were conceded to fall within the definition ofmaterials that are technically "hazardous" according to the federal guidelines applicable to freight shipment by air carriage. But the post hoc revelation that the household goods packed by Novak's daughter did not lead, in ALJ Goodwin's determination, to a finding that Scott Novak knowingly offered hazardous materials for shipment via air cargo at Alaska Airlines. What the ALJ found was that Scott Novak did not have knowledge that the household goods he eventually offered for shipment at the Alaska Airlines air cargo desk in Anchorage contained finger nail polish, hair spray and other goods that were required to be declared uponpresentation.

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### 26 27 28 At the hearing and inpost-hearingbriefing, the FAA argued without much enthusiasm and not in the least way persuasively that Scott Novak violated federal legal requirements because he should have known there were materials characterized as hazardous or dangerous according to federal law in the shipment he offered to Alaska Airlines. As a matter offact, ALJ Goodwin found, based on his review ofthe testimony and arguments presented by the FAA and Novak's counsel, that Scott Novak was not aware ofthe contents ofhis daughter's boxes when he offered them for shipment to Alaska Airlines. ALJ Goodwin also found that the FAA agreed with Novak's contention that he was not aware the contents of the boxes contained finger nail polish, hairspray and other materials that turned out to fit the defmition ofhazardous materials according to federal law andregulations. [ALJ

### Decision atpgs. 3-4]. Having seemingly conceded that ScottNovak was without actuallmowledge regarding the contents oftheboxes his daughter had packed, the FAAnow seeks on appeal to recast the

contents of the actual regulatory provision requiring that the government show he had lmowledge the boxes contained hazardous or dangerous goods. On appeal, the FAA suggests that ALI Goodwin seems to have misapplied the two-pronged test with regard to whether a person "knowingly" acts when they have "actual knowledge of the facts giving rise to the violation" or when a "reasonable person acting inthe circumstances and exercisingreasonable

care wouldhave that knowledge." 

### [Complainant's AppealBriefat pg. 

### 6]. Having conceded that ScottNovak did nothave actual knowledge that his daughter'sboxes containedhazardous materials, the FAA naturally grasps at the second prong ofthe test calling for inquiry about Novak's duty ofcare in offeringhis daughter's boxes andwhetherhis inquiryinto thematerial he eventually offered was "reasonable" under the circmnstances. 

### [Complainant's Appeal Brief atpg. 6].

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### 26 27 28 ALI Goodwin, having slogged through the hearing testimony and evaluated the credibility of the witnesses, found that Scott Novak made sufficient inquiry and that his inquiry was reasonable under the circumstances. [ALJ

### Decision at pgs. 3-4]. Nothing in the evidence adduced at the hearing or in the submittals filed in this dispute suggests that Scott Novak had actual knowledge that the shipment he offered to Alaska Airlines containing his daughter's finger-nail polish, hairspray or other items that could be regarded as dangerous or hazardous under federal law or regulations. Thus, the point on which the government would like this dispute to tumis whether or not Scott Novak was a reasonable**~erson** and exercising reasonable care when he offered the shipment to Alaska Airlines. Contrary to the FAA's position on appeal, Scott Novak was never asked about shipment ofhazardous good or given any documentation about so-called "trigger" terms by an agent of Alaska Airlines. 

### [Complainant'sAppealBriefat pg. 3]. As a matter offact, as determined byALI Goodwin, Scott Novak's actions when offering his daughter's boxes for shipment by Alaska Airlines

were reasonable. Current federal law and FAA regulations require a showing that person knowingly intended to ship hazardous or dangerous materials when offered for shipment. The FAA failed to establish that Scott Novak knowingly offered hazardous materials to the Alaska Airlines air cargo desk inAnchorage, Alaska. After an extensive hearing, the ALJ determined there was no factual basis to show Scott Novak acted in an unreasonable manner or failed to exercise reasonable care when he offered the shipment of his daughter's goods to Alaska Airlines. In their appeal brief, the FAAfails to point to anyevidence thatwould show the ALJ

was mistaken in concluding that Scott Novak was without knowledge of the hazardous materials or that he was somehow "unreasonable" when he presented his daughter's boxes to the AlaskaAirlines air cargo desk.

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### 28 The position adopted by the government at the hearing and now on appeal that Scott Novak somehow should have been able to ascertain what was in the contents of the boxes packed and sealed by his daughter or that he should have subjected his daughter to an extensive examination about the contents ofthe boxes convenientlyignores the loose process the FAA apparently has for air cargo inspection, at least in Anchorage, Alaska. Compared to the requirements passengers are subjected to by the Transportation Security Administration ("TSA"), the process a potential shipper ofair freight is subjected to is casual. The testimony at the hearing in this dispute revealed that Scott Novak drove his pickup truck to the Alaska Airlines air cargo counter, was directed by an employee to put the boxes and goods he wished to ship via air carriage on a pallet and then proceed to give his credit card and other information to the office staff At no time was Scott Novak grilled by an Alaska Airlines employee about the contents ofthe materials he sought to ship. The air cargo shipment facility in Anchorage, Alaska where Scott Novak sought to ship the boxes belonging to his daughter was devoid ofmeaningful posters or other materials located in a prominent position that might have alerted Novak or any other shipper about potential problems with shipping finger nail polish, hairspray, shaving creams or other material the federal government considerhazardous for air carriage. It is also significant that the forms used by Alaska Airlines when completing the air freight paperwork lacks a cautionary statement or prompt that might alert a reasonable person about shipment of hazardous materials. If the FAA is going to hold occasional individual shippers like Scott Novak to a standard that is essentially normative and based on what the agency argues is grounded in what a reasonable person would do under various unspecified circumstances, then the agency has an obligation to inform shippers prospectively that they are required to engage in certain

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### 26 27 28 conduct to determine whether the shipment the person is attempting to advance contains hazardous or dangerous goods. From the perspective ofnot only someone like Scott Novak but also any functioning bureaucrat, the questions to be asked ofany person seeking to ship goods on an airplane comes down to a what are probably severalkeyquestions. One wouldbe along the lines of: "Haveyou personallyinspectedthis shipmentto see ifit contains dangerous

or hazardous items?" The air bill Scott Novak signed did have a bald statement that the shipper was not attempting to send dangerous or hazardous materials but there was nothing on the document that would cue a reasonable person as to the nature ofwhat constitutes hazardous or dangerous goods, particularly small bottles offinger-nail polish and similar cosmetic items. The FAA's entire basis for prosecuting members ofthe public in circumstances like the one facing Scott Novak would be dramatically different (and seemingly without serious contention), if the actual shipping documents provided minimum definitions related to what items might be considered as dangerous and hazardous and at the same time calling for the potential shipper

to specifically declare, under the penalty of a potential violation, that they had personally inspected or were otherwise familiar with the entire contents ofthe material to be shipped and theywerenot dangerous orhazardous. Ifthe document Scott Novak signed when consigning his daughters household goods to AlaskaAirlines contained an octagonal symbol withthe words "STOP" in the middle ofthe symbol with the following language adjacent to the symbol: "Have you personally inspected

or determined this shipment is free from dangerous or hazardous goods?" the FAA would be

on solid grounds arguing the reasonable person standard, particularly ifthe line making the inquiry was accompanied by another statement along the lines ofthe following: "A chart with thekinds ofgoods that are defined as dangerous orhazardousis available from your shipper."

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### 28 By now, virtually anyone who has traveled as a passenger on a large conunercial airplane is in the last dozen years is familiar with the posters and examples of prohibited materials the TSA has determined may not be brought aboard aircraft. The lack of similar postings or other prompts on the air cargo side of the FAA operations compared to the passenger side ofair carriage is remarkable and calls for review andpossible action. What is not called for 

### in light ofthe record in this case combined with and based on ALJ Goodwin's reasoned decision is further reefing on a father who was simply attempting to assist his daughter movehousehold goods via air carriage. ScottNovakhad no knowledge the boxes his daughter packed contained finger nail polish, hairspray, shaving cream and other items the FAAhas categorized as hazardous. Inthe situation where theFAAhas notproperly established procedures and forms that would prompt any reasonable person to actually check

or certifythat the materials being shipped are free from hazardous contents and also where the FAA and associated air freight shippers fail to give obvious examples of what constitute prohibiteditems, the FAA'spursuit ofNovak on appeal suggestsbureaucratichubris. The FAA and other agencies ofthe government have gone to extraordinary lengths to insure that passengers traveling on airplanes are subjected to careful scrutiny in order that hazardous and dangerous materials are not shipped or properly shipped. The evidence at the hearing in this case illustrated that the same standards and safeguards that are routinely and regularly applied to the traveling public when engaged 

### in passenger transportation are not applied or very casually applied when it comes to shipping household goods as air cargo. Scott Novak was not prompted or otherwise cued by a government agent, government document or a document from the shipper to state that he had personally inspected the containers he sought to ship on behalf of his daughter. In the circumstances Scott Novak fouud himselfin, the governmenthas engaged in a kind ofafter-the-fact forensic analysis that

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### 28 ignores the role of the government and the shipper in creating a situation that is arguably umeasonable. Having failed to provide any cues or prompts that would inform a reasonable person about what would constitute shipment of hazardous or dangerous items and having failed to pointedly ask whether Scott Novak had personally inspected the items proffered for shipment, it should come as no surprise to anyone at the FAA that ALJ Goodwin determined that the agencyhad failed to meet its legal burden and, accordingly, dismissed the case against Scott Novak. Conclusion ScottNovak did not seek an exemption from a laworregulations properlyenacted or promulgated. NordidNovak seek some sort of

### defacto Alaskaexemption from the regulatoryrequirements adopted for the shipment ofair cargo. What ScottNovak seeks and whatthe lawrequires is that the FAAdemonstrate heknowingly attempted to ship dangerous

orhazardous goods aboard an airplane. The ALJ assignedbythe government ofthe United States ofAmericato review this matterfound thattheFAAfailed to show that ScottNovak lmowingly attempted to ship such goods and thathis conduct, inthe circumstances was reasonable. Giventhe government's casual approach to workingwithpotential shippers like Novakin orderto ascertainwhether theyhad actuallyinspectedthe itemsto be shipped or

even providingthemwithrudimentary guidelines onwhatkinds ofitems might behazardous

ordangerous, theprudent course ofaction here wouldbeto workto change the circumstances shippers face when offering air freight. ScottNovakwas never givenreasonable notice about shipment ofhazardous or dangerous goods or asked whetherhehadpersonallyinspected the goods hewas attempting to ship. These failures onthepartofthe FAAare actually at the heart ofALI Goodwin's decision. ALI Goodwin applied the law to the facts and rendered a justdecision. Instead ofappealing, theFAA shouldhave embarked on areview ofregulations

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### 26 27 28 and procedures usedto screen air freight withthe goal ofadopting clear and obvious guidelines and workwith air cargo shippers so that the forms anddocuments for the shipment ofair cargo actuallyyield improved and safer air cargo movement. Based onthe facts found byALI Goodwin and existing law andprocedures, theFAA's appealmustbe denied. 

### DATED this 

### 1st dayofJuly2013 at Juneau, Alaska.

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### 26 27 28 CERTIFICATION I certifythat on this date, the original and one copy ofthis documentwas sent via USPS: 

### FederalAviationAdministration 800 Independence Avenue, SW Washington,DC 20591 Attention: FAADecisionmaker, AGC-430 WilburWrightBuilding-- Suite 2W1000 Acopy ofthis document was also to: PeterLynch, Assistant ChiefCounselfor Enforcement and Charles Raley, Attorney EnforcementDivision, AGC-300 Office ofthe ChiefCounsel Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591

Respondent's Responsive Appellate Brief FAA vs. Scott Novak FDMS No. FAA-2012-0206 11