# ..

1 

### 2 3 4 5 

### 6 7 8 9 

### 10 11 

### 12 13 14 15 

### 16 17 

### 18 19 20 21 22 23 24 25 

### '26 27 28 Law Office ofJoseph W. Geldhof 2Marine Way, Suite 207 Juneau, Alaska 99801 Telephone: (907)586-8193 E-mail:joeg@alaska.com Counselfor Respondent ScottNovak 

# RECEIVED JAN 1 8 2013 

## HEARING DOCKET

UNITED STATES OFAMERICA U.S. DEPARTMENT OFTRANSPORTATION

FEDERALAVIATION ADMINISTRATION In

### the Matter of:

ScottNovak, Respondent. ) ) ) ) ) 

### ) FAA .DocketNumber: Currently Unassigned 

### ) Case No.: FAA-2012-0206

RESPONDENT'S POST-HEARINGBRIEF Argument 

### Scott Novak, Respondent, through counsel, files his Post-Hearing Briefin 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 ofthe evidence are remarkably evenhanded and avoids slanting the facts, evidence and proceedings before the Administrative Law Judge. [Complainant's ClosingArgument, 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 FAAvs. ScottNovak FDMS No. FAA-2012-0206 11 

### 2 3 4 

### 5 6 7 8 

### 9 10 11 12 13 14 15 16 17 18 19 

### 20 21 

### 22 23 

### 24 25 '26 

### 27 

### 28 knowingly commits an act in violation of49 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 couldbe 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 ofthe 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 ClosingArgument,page 11]. 2 Nothing in the evidence adduced at the hearing orin 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. ScottNovak FDMS No. FAA-2012-0206 2

### 1 

### 2 3 4 

### 5 

### 6 7 

### 8 9 10 11 12 13 14 

### 15 16 17 18 19 20 21 

### 22 23 24 25 '26 27 

### 28 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 whenhe offered the shipment ofhis daughter's goods to AlaskaAirlines. The position adopted bythe government that Scott Novak somehow should have been able to ascertain what was 

### in the contents ofthe boxes packed and sealed by his daughter or that he should have made inquiry ofhis daughter about the contents ofthe boxes conveniently ignores the role ofa 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 regulatoryprovisions and ascertain whether a shipment ofair cargo contains dangerous

or hazardous materials places the entire burden ofcompliance on the individual neatly while absolving the role ofthe 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 ifthey 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 inthis case shows that the FAA has done a miserable ornon-existentjob 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. ScottNovak FDMS No. FAA-2012-0206 31 

### 2 3 

### 4 5 6 7 

### 8 

### 9 10 11 12 

### 13 14 

### 15 

### 16 17 18 19 20 21 

### 22 23 24 25 '26 27 

### 28 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 ofnot only someone like Scott Novak but also any functioning bureaucrat, the question about whether a reasonableperson 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 ifit contains dangerous orhazardous 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 ofwhat constitutes hazardous or dangerous goods, particularly small bottles of finger-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), ifthe 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 or,hazardous. Ifthe document Scott Novak signed when consigning his daughters household goods

to Alaska Airlines contained an octagonal symbol with the 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

Respondent's Post-HearingBrief FAA vs. ScottNovak FDMS No. FAA-2012-0206 41 

### 2 3 4 

### 5 6 7 8 9 10 11 

### 12 13 14 

### 15 

### 16 17 

### 18 19 

### 20 21 

### 22 23 

### 24 25 '26 

### 27 28 inquiry was accompaniedbyanother statement along the lines ofthe following: "A chart with the kinds ofgoods that are defined as dangerous orhazardous is available from your shipper." 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 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 himselfin, the government has engaged in a kind ofafter-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 ofthe kind ofrelationship citizens should enjoy with the government that was established and is supposedly maintained for their well being. Conclusion 

### ScottNovakis not seeking exemption from a law enacted orregulations properly promulgated. Nor is he seeking some sort ofdefacto 

### Alaska exemption from the regulatory

Respondent's Post-Hearing Brief FAA vs. ScottNovak FDMS No. FAA-2012-0206 5

### 1 

### 2 3 

### 4 

### 5 6 7 

### 8 9 10 11 12 13 14 15 16 17 18 19 20 21 

### 22 23 24 25 '26 27 

### 28 requirements adopted for the shipment ofair cargo. What ScottNovak seeks and what the law requires is that the FAAdemonstrate he knowingly attemptedto ship dangerous orhazardous goods aboard an airplane. The government has failed to showthat ScottNovakknowingly attempted to ship such goods. As well, the governmenthas failed to show that ScottNovak's attempt to ship his daughter'spersonal and household goods breachedthe amorphous reasonable person standard the FAA claims is embeddedin legal doctrine. Given the government's casual approachto workingwith potential shippers likeNovak in orderto ascertain whethertheyhad actuallyinspected theitems to be shipped or evenproviding them withrudimentary guidelines onwhatkinds ofitems might behazardous or dangerous, the FAA cannotprevail with fining ScottNovakinthis case. A narrowlycrafted decision finding that the FAAhas an insufficientbasis to find that ScottNovakknowinglyviolated federal law orregulations inthis caseis appropriate. A decision indicating that ScottNovak did notknowinglyofferto ship hazardous or dangerous goods andthat hewasnever givenreasonable notice about such goods or asked whetherhe hadpersonallyinspected the goods he was attempting to ship may also havethe additional benefit ofpromptingtheFAAto adopt clear and obvious guidelines and work with air cargo shippers so that the forms and documents for the shipment ofair cargo actuallyyieldimproved air cargo movement. DATED this 8th dayofJanuary2013 at Juneau, Alaska.

Respondent's Post-Hearing Brief FAA vs. ScottNovak FDMS No. FAA-2012-0206 AlaskaBar# 8111097

6

### •

1 

### 2 

### 3 4 

### 5 

### 6 7 

### 8 9 

### 10 11 12 13 

### 14 15 16 17 18 19 

### 20 21 

### 22 23 24 

### 25 ,26 27 28 CERTIFICATION I certifythat onthis date, the original and one copyofthis documentwas sentvia USPS: FederalAviation Administration 800 IndependenceAvenue, SW Washington, DC 20591 Attention: HearingDocket Clerk,AGC-430 WilburWrightBuilding-- Suite 2W1000 A copy ofthis document was also to: Howard L. Marin,Jr., Regional Counsel FederalAviation Administration Office oftheRegional Counsel AAL-7 222 West7th Avenue, Box 14 Anchorage, Alaska 99513-7587 and The HonorableRichard C. Goodwin, AdministrativeLawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 New Jersey Avenue, S.E. (Ell-310) Washington, DC 20590

DATE:

Respondent'sPost-Hearing Brief FAA vs. ScottNovak FDMS No. FAA-2012-0206 7