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Law Office of Joseph W. Geldhof 

2 Marine Way, Suite 207 

Juneau, Alaska 99801 

Telephone: (907)5 86-8193 

E~mail: joeg@alaska.com 

Counsel for Respondent Scott Novak 

RECEIVED 

.JUl1l21)B 

HEARING DOCKET 

UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

In the Matter of: 

FEDERAL A VIA TIOIN 

ADMINISTRATION 

Scott Novak, 

Respondent. 

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FAA .Docket Nwnber: 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 in this appeal is whether or not 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 of federal law and regulatory requirements 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 Appellate Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 
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presided over a full-blown evidentiary hearing and had the benefit of complete briefing by the 

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 the FAA now seeks to review. In large part, the instant appeal by the Federal 

Aviation Administration ("FAA"), essentially seeks to overturn ALJ Goodwin's thoughtful 

and comprehensive determination by rearguing and amplifYing points made previously during 

the hearing and without specifically pointing 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 of the 

underlying record in this dispute. 

The issue central to this dispute and the fundamental question that must decided in this 

case is whether or not Scott Novak "knowingly'' violated the regulatcry provisions in the 

United States Code of Federal Regulations. The requirement that the 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 issued under that 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 

l14 CPR Sec. 13.16 (c). 

Respondent's Responsive Appellate Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

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Appeal Brief at pg. 2; Transcript 176; 6-9]. Contrary to the assertion of Complainant, Mr. 

Noval' was not present when his daughter sealed the boxes that were eventually delivered to 

Alaska Airlines for shipment to Juneau, Alaska. [See, e.g., Complainant's Appeal Brief at pg. 

2]. What ALJ Goodwin found and what formed the essential basis of the judge's factual 

conclusions was that Scott Novak was prepared to assist with his daughter's moving adventure 

and was willing to pay for the shipment but that he was unaware of the contents of the boxes 

subsequently offered for shipment via air carriage. 

ALJ Goodwin determined that the boxes prepared and sealed by Novak'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 of Novak's daughter were found to exceed the capacity of his 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 her he would pay for the air freight costs. 

Subsequent inspection of the contents of the 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 of materials 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 upon presentation. 

Respondent's Responsive Appellate Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

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At the hearing and in post-hearing briefing, 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 of fact, 

ALJ Goodwin found, based on his review of the testimony and arguments presented by the 

FAA and Novak's counsel, that Scott Novak was not aware of the contents of his 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 

of hazardous materials according to federal law and regulations. [ALJ Decision at pgs. 3-4]. 

Having seemingly conceded that Scott Novak was without actuallmowledge regarding 

the contents of the boxes his daughter had packed, the FAA now 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 in the circumstances and exercising reasonable 

care would have that knowledge." [Complainant's Appeal Brief at pg. 6]. Having conceded 

that Scott Novak did not have actual knowledge that his daughter's boxes contained hazardous 

materials, the FAA naturally grasps at the second prong of the test calling for inquiry about 

Novak's duty of care in offering his daughter's boxes and whether his inquiry into the material 

he eventually offered was "reasonable" under the circmnstances. [Complainant's Appeal 

Brief at pg. 6]. 

Respondent's Responsive Appellate Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

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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 tum is 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 of hazardous good or given 

any documentation about so-called "trigger" terms by an agent of Alaska Airlines. 

[Complainant's Appeal Brief at pg. 3]. As a matter of fact, as determined by ALI 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 in Anchorage, 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 FAA fails to point to any evidence that would 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 Alaska Airlines air cargo desk. 

Respondent's Responsive Appellate Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

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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 of the boxes conveniently ignores 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 of air 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 of the 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 of meaningful 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 consider hazardous 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 

Respondent's Responsive Appellate Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 6 
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conduct to determine whether the shipment the person is attempting to advance contains 

hazardous or dangerous goods. From the perspective of not only someone like Scott Novak 

but also any functioning bureaucrat, the questions to be asked of any person seeking to ship 

goods on an airplane comes down to a what are probably several key questions. One would be 

along the lines of: "Have you personally inspected this shipment to see if it 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 of what constitutes hazardous or dangerous 

goods, particularly small bottles of finger-nail polish and similar cosmetic items. The FAA's 

entire basis for prosecuting members of the 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 of the material to be shipped and 

they were not dangerous or hazardous. 

If the document Scott Novak signed when consigning his daughters household goods 

to Alaska Airlines contained an octagonal symbol with the words "STOP" in the middle of the 

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 if the line making the 

inquiry was accompanied by another statement along the lines of the following: "A chart with 

the kinds of goods that are defined as dangerous or hazardous is available from your shipper." 

Respondent's Responsive Appellate Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

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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 of air carriage is remarkable and calls for review and possible action. 

What is not called for in light of the 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 move household goods via air carriage. Scott Novak had no knowledge the 

boxes his daughter packed contained finger nail polish, hairspray, shaving cream and other 

items the FAA has categorized as hazardous. In the situation where the FAA has not properly 

established procedures and forms that would prompt any reasonable person to actually check 

or certify that 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 

prohibited items, the FAA's pursuit ofNovak on appeal suggests bureaucratic hubris. 

The FAA and other agencies of the 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 himself in, the government has engaged in a kind of after-the-fact forensic analysis that 

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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 agency had failed to meet its legal burden and, accordingly, dismissed the case against 

Scott Novak. 

Conclusion 

Scott Novak did not seek an exemption from a law or regulations properly enacted or 

promulgated. Nor did Novak seek some sort of de facto Alaska exemption from the 

regulatory requirements adopted for the shipment of air cargo. What Scott Novak seeks and 

what the law requires is that the FAA demonstrate he knowingly attempted to ship dangerous 

or hazardous goods aboard an airplane. The ALJ assigned by the government of the United 

States of America to review this matter found that the FAA failed to show that Scott Novak 

lmowingly attempted to ship such goods and that his conduct, in the circumstances was 

reasonable. Given the government's casual approach to working with potential shippers like 

Novak in order to ascertain whether they had actually inspected the items to be shipped or 

even providing them with rudimentary guidelines on what kinds of items might be hazardous 

or dangerous, the prudent course of action here would be to work to change the circumstances 

shippers face when offering air freight. Scott Novak was never given reasonable notice about 

shipment of hazardous or dangerous goods or asked whether he had personally inspected the 

goods he was attempting to ship. These failures on the part of the FAA are actually at the 

heart of ALI Goodwin's decision. ALI Goodwin applied the law to the facts and rendered a 

just decision. Instead of appealing, the FAA should have embarked on a review of regulations 

Respondent's Responsive Appellate Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 9 
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and procedures used to screen air freight with the goal of adopting clear and obvious 

guidelines and work with air cargo shippers so that the forms and documents for the shipment 

of air cargo actually yield improved and safer air cargo movement. 

Based on the facts found by ALI Goodwin and existing law and procedures, the FAA's 

appeal must be denied. 

DATED this 1st day of July 2013 at Juneau, Alaska. 

Respondent's Responsive Appellate Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

Jos 

Alaska Bar # 8111 097 

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CERTIFICATION 

I certify that on this date, the original 

and one copy of this document was sent via 

USPS: 

Federal Aviation Administration 

800 Independence Avenue, SW 

Washington, DC 20591 

Attention: FAA Decisionmaker, AGC-430 

Wilbur Wright Building-- Suite 2W1000 

A copy of this document was also to: 

Peter Lynch, Assistant Chief Counsel for Enforcement 

and 

Charles Raley, Attorney 

Enforcement Division, AGC-300 

Office of the Chief Counsel 

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 

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