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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 

JAN 1 8 2013 

HEARING DOCKET 

UNITED STATES OF AMERICA 

U.S. DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADMINISTRATION 

In the Matter of: 

Scott Novak, 

Respondent. 

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) FAA .Docket Number: Currently Unassigned 

) Case No.: FAA-2012-0206 

RESPONDENT'S POST -HEARING BRIEF 

Argument 

Scott Novak, Respondent, through counsel, files his Post-Hearing Brief in the abovecaptioned matter. 

The Government's lengthy and comprehensive recitation of the underlying factual 

basis leading up to this dispute as well as the summation of the evidence are remarkably evenhanded and avoids slanting the facts, evidence and proceedings before the Administrative Law 

Judge. [Complainant's Closing Argument, pages 1 - 9]. 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 regulatory provisions in the United States Code of Federal . 

Regulations. 

The requirement that the governm~nt 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 

Respondent's Post-Hearing Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

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knowingly commits an act in violation of 49 U.S.C. Chapter 51 or a regulation prescribed or 

order issued u~der that chapter ... " 1 The government has brought forth nothing in the form of 

credible evidence that establishes Scott Novak knowingly intended to ship items that could be 

characterized as hazardous or dangerous according to the federal standards governing 

shipment of potentially harmful substances on aircraft. Instead, the government argues 

without much enthusiasm and not in the least way persuasively that Scott Novak has violated 

federal legal requirements because he ought to have known or should have known that there 

were materials characterized as hazardous or dangerous according to federal law in the 

shipment he offered to Alaska Airlines. [See generally, Complainant's Closing Argument, 

page 11]. 

The government's argument in this case neatly skirts the actual regulations requiring 

the government to show that an individual "knowingly" violated the law. The government's 

position is, apparently, that a two-pronged test now exists 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 Closing Argument, page 11]. 2 

Nothing in the evidence adduced at the hearing or in the pleadings filed in this dispute 

suggests that Scott Novak had actual la:}.owledge that the shipment he offered to Alaska 

Airlines contained 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 

1 14 CPR Sec. 13.16 (c). 

2 Footnotes omitted. 

Respondent's Post-Hearing Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

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reasonable person and exercising reasonable care when he offered the shipment to Alaska 

Airlines. 

Scott Novak believes the law requires a showing that he knowingly intended to ship 

hazardous or dangerous materials on the Alaska Airlines flight. But even if a different 

standard is applied, there is nothing in the factual record that shows 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. 

The position adopted by the government 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 made inquiry of his daughter about the contents of the boxes conveniently 

ignores the role of a properly functioning regulatory agency. A position that requires a parent 

(or for that matter any other potential unsophisticated shipper), to wade through the extensive 

federal regulatory provisions and ascertain whether a shipment of air cargo contains dangerous 

or hazardous materials places the entire burden of compliance on the individual neatly while 

absolving the role of the regulator. In efrect, the FAA apparently reserves the right to force 

shippers to act as a screening agent and is prepared to sanction the individual if they fail to 

adhere to the myriad regulatory requirements and all the while giving little or no notice as to 

what constitutes hazardous or dangerous goods. In addition to ignoring the obvious legal 

standard calling for the government to show that the violation was knowingly made, the 

evidence in this case shows that the FAA has done a miserable or non-existent job in working 

with unsophisticated shippers like Scott Novak as he attempted to ship household and other 

goods. 

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 

Respondent's Post-Hearing Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

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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 

conduct to determine whether the shipment the person is attempting to ship contains 

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

but also any functioning bureaucrat, the question about whether a reasonable 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 have cued a reasonable perso~ 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 

Respondent's Post-Hearing Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

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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." 

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 illustrates 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 

found himself in, the government has engaged in a kind of after-the-fact forensic analysis that 

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, the FAA now seeks to sanction an individual who obviously did not know he was 

offering goods that were contrary to the government's voluminous regulatory requirements. 

Punishment in this circumstance is unwarranted as a matter of law, sound administrative 

practice and corrosive of the kind of relationship citizens should enjoy with the government 

that was established and is supposedly maintained for their well being. 

Conclusion 

Scott Novak is not seeking exemption from a law enacted or regulations properly 

promulgated. Nor is he seeking some sort of de facto Alaska exemption from the regulatory 

Respondent's Post-Hearing Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

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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 government has failed to show that Scott Novak knowingly 

attempted to ship such goods. As well, the government has failed to show that Scott Novak's 

attempt to ship his daughter's personal and household goods breached the amorphous 

reasonable person standard the FAA claims is embedded in legal doctrine. 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 

FAA cannot prevail with fining Scott Novak in this case. 

A narrowly crafted decision finding that the FAA has an insufficient basis to find that 

Scott Novak knowingly violated federal law or regulations in this case is appropriate. A 

decision indicating that Scott Novak did not knowingly offer to ship hazardous or dangerous 

goods and that he was never given reasonable notice about such goods or asked whether he 

had personally inspected the goods he was attempting to ship may also have the additional 

benefit of prompting the FAA to adopt 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 

air cargo movement. 

DATED this 8th day of January 2013 at Juneau, Alaska. 

Respondent's Post-Hearing Brief 

FAA vs. Scott Novak 

FDMS No. FAA-2012-0206 

Alaska Bar # 8111097 

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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 A venue, SW 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 

Wilbur Wright Building-- Suite 2W1000 

A copy of this document was also to: 

Howard L. Marin, Jr., 

Regional Counsel 

Federal Aviation Administration 

Office of the Regional Counsel 

AAL-7 

222 West 7th Avenue, Box 14 

Anchorage, Alaska 99513-7587 

and 

The Honorable Richard C. Goodwin, Administrative Law Judge 

Office of Hearings, M-20 

U.S. Department of Transportation 

1200 New Jersey Avenue, S.E. (Ell-310) 

Washington, DC 20590 

DATE: 

Respondent's Post-Hearing Brief 

FAA vs. ScottNovak 

FDMS No. FAA-2012-0206 

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