Certificate ofService

In the matter of: FEDERAL AVIATION ADMINISTRATION



### v. BRIAN WALLAESA Complainant,

Respondent ) ) ) ) ) ) ) ) ) ) ) ) 

# ____________________________) FDMS No. FAA-2010-0628 DocketNo. CPlOWPOOlO Hon. Ronnie A. Yoder

I hereby certify that I have sent on this date byFedEx a copy ofall motions and filings containedherein addressed to the following: John C. Stuart, Jr., Complainant's Counsel Attorney, Office ofthe ChiefCounsel Enforcement Division, AGC-300 Federal Aviation Administration 800 Independence Ave., S.W; Washington, DC 20591 TEL: 202-267-9958 FAX: 202-267-5106 The Hon. Ronnie A. Yoder, ChiefAdministrative Law Judge U.S. Department ofTransportation Office ofHearings, M-20, RoomE12-320 1200 New Jersey Avenue, S.E. Washington, DC 20590 TEL: 202-366-2142 FAX: 202-366-7536 Federal Aviation Administration 800 Independence Avenue, S.W. Washington, DC 20591 Attn: Hearing Docket Clerk, AGC-430 Wilbur WrightBuilding- Suite 2Wl000Respondent 11272WorthamCrest Circle Manassas, VA 20109 (570) 778-1335 Dated May 19,2012

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Inthe matter of: FEDERAL AVIATION ADMINISTRATION

V; BRIANWALLAESA BRIANA WALLAESA

Complainant,

Respondent ) ) ) ) ) ) ) ) ) ) ) ) 

### lOll FDMS No. FAA-2010-0628 Docket No. CPlOWPOOlO Hon. Ronnie A. Yoder



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RESPONDENT'S POST HEARING BRIEF
Pursuant to the May 22, 2012 Order ofthe ChiefAdministrativeLaw Judge (ALJ) at the close ofthe hearing ofthe above matter, Respondent hereby submits this brief.

1. Statement ofRespondent concerning interpretation ofthe Rules ofPractice for FAA Civil Penalty Proceedings 14 C.F.R. §13.16 and Subpart G. Itis the humble opinion ofthe Respondent that the legal interpretation of the Rules ofPractice for FFA Civil PenaltyProceedings specified in 14 C.F.R. §13.16 and Subpart G is that matters concerning civii penalties are specified within the document. Ifa civil penaltyis sought afterby the Federal Aviation Administration (FAA or Complainant), then the FAARules ofPractice for Civil Penalty Proceedings are the instruction manual, ifyou will, on how that function is to be performed. !I• 0()**··t·~** l)In the Rules ofPractice for FFA Civil Penalty Proceedings handout there
are manyinstructions, however there are two important passages in reference to the proceedings: A §13.16 (a) "The FAAuses these procedures when it assesses a civil penalty against a person otherthan an individual acting as a pilot, flight engineer, mechanic, orrepairman for a violation cited in the first sentence of49 U.S.C. 46301(d)(2) orin 49 U.S.C. 47351, or implementing rule, regulation, or order." B §13.224 "Burden ofProof (a) Except in the case ofan affirmative defense, the burden of proofis on the agency, (b) Except as otherwise provided by a statute orrule, the proponent ofa motion, request, or orderhas the burden of proof; (c) A party who has asserted an affirmative defense has the burden ofproof." Itis the Respondent's interpretation that the Complainant is responsible for the Burden ofProofas either 'the agency' or 'theproponent ofa motion' and that the rules ofprocedure are governed by 14 C.F.R. §13.16. 

### 2. Statement ofRespondent concerning FAA Order 2150.3 B. Within the Complainant's own document entitled "Rules ofPractice for Civil PenaltyProceedings" and theComplainant'sNotice ofProposed Civil Penalty, both 14 C.F.R. §13.16 and 49 U.S.C. 46301(a)(5)(A) are specified asbeing the guidelines ofhow to assess the proposed civil penalty. In fact, the FAA handout Rules ofPractice for FAA Civil Penalty Proceedings 14 C.P.R. §13.16 and Subpart G is provided along with the Notice ofProposed Civil Penalty so the Respondent is given 'the rules to the game.' Nowhere in any document is FAA order 2150.3 B mentioned, nor is it provided. FAA order 2150.3 B was not even brought to light during two informal meetings with the Complainant and ·Respondentin the FAA's own building, several conference calls, and multiple orders and notices. FAA order 2150.3 B was not even mentioned to the Respondent until a full year and seven months into the proceedings. Order 2150.3B clearly states in Chapter 1, sections 2 (b) and (c) that the orderis a "StaffManual.
.." and that the order "does not give any right orbenefit, substantive orprocedural, enforceable at any law by any party againstthe FAA, its officers, orits employees
..." On this basis, it is the Respondent's position that FAAOrder 2150.3B is intended to be a guideline for employees ofthe FAA on how to act, e.g. where to find the cafeteria, not to wear open toed sandals in the building. This is especially evident through the use ofthe term "StaffManual." Itis the position ofthe Respondent that in defining FAA Order 2150.3B as
a "StaffManual", it has no legal basis in U.S. Code. Itis the Respondent's belief that FAA Order 2150.3B is essentially a set ofguidelines outside ofthe U.S. Code. Intwo cases that received national attention, State v. Hogan 336 N.J.Super. 319, 764 A.2d 1012 (NJ Super 2001) and State v. Kenna 167 N.J. 635, 772 A.2d 937 (NJ Super 2001), the existence ofa code ofoperation outside ofcodified lawwas highlighted as how greatly negative such actions could become, and lead to further oversight, and an implementation ofpermanent codified changes to law: FAA Order 2150.3B, i.e. the StaffManual, provides simple, easy to read graphics and tables for FAA attorneys to use to guide them through their everyday life. Much like USA Todayis tothe New York Times, orHighlights is to Moby Dick, the StaffManual provides a glossy, simplistic picture ofhow to handle these proceedings. I do not understand why someone wouldrequire a law degree in orderto use it. I suggest that the FAAhandout Rules ofPractice for FAA Civil Penalty Proceedings 14 C.P.R. §13.16 and Subpart G be retired and that FAA Order 2150.3B is to be used in place. Since the StaffManual does not require a law degree, we can save the taxpayers a great deal ofmoneybyreleasing all FAA attorneys from thekduties and hiring paralegals in their place. After about five years or so ofparalegals handling cases, then we can further save taxpayer money byoutsourcing the function ofCivil Enforcement to contractors outside the continental United States. I used to work in outsourcing for a former employer; this is at least $1 to $3 million offree consulting advice. Through the use ofthe Staff Manual as a guideline, a person who has a mental condition is treated the same as a sane person. Through the use ofthe Staff Manual as a guideline, someone who is having a heart attack is treated with the
same consideration as a person intending to hijack a plane. There is no consideration given to the background ofthe situation, orthe circumstances involved during the incident.Yi Currently we are in the midst ofa Presidential election, and one ofthe candidates is Mitt Romney. Mr. Romney has a history ofperforming Leveraged Buyouts ofcorporations in financial trouble. Ifwe elect Mr. Romney, maybe he
can bring his experience with him, and he can institute a Leveraged Buyout ofthe Federal Government, as we know, the United States currently has a highbudget deficit. Maybe he could help with the outsourcing. FAA Order 2150.3B is not mentioned in. the FAA handout Rules of Practice for FAA Civil PenaltyProceedings 14.C.F.R. §13.16 and Subpart G. FAA Order 2150.3B is not mentioned in 49 U.S.C. 46301(a)(5)(A). Itis the position ofthe Respondent thatFAA Order 2150.3B has no basis in U.S. code, and therefore, any presumptions, arguments orpositions based on FAA Order 2150.3B are invalid, and therefore, any argument made bythe Complainant using the StaffManual as a basis is an invalid statement, and thereby itselfinvalid (just
.as house build on no foundation cannot stand, the Complainant's argument has no basis). 3. Statement ofRespondent concerning 49 U.S.C. 46301(a)(5)(A). Since FAA Order 2150.3 B is invalid for discussion, we must then focus
on 49 U.S.C. 46301(a)(5)(A). The Respondent sates the following section to be worded as the following: "An individual (except an airman serving as an airman) or small business concern is liable to the Government for a civil penalty ofnot more than $10,000 for violating-**------------------------------------~------------**

(i) Chapter401 (except sections 40103(a) and (d)), 40105, 40106(b), 40106, and 40117), section 44502 (b) or (c), chapter447 (except sections 44717- 44723), orchapter449 (except sections 44902, 44903(d), 44904, and 44907-44909) ofthis title." After the Respondent had reviewed each section ofcode, the Respondent makes the following assessment: 1) Chapter401 applies to Economic Regulation and Duties ofthe Secretary of Transportation. 2) Chapter44502 (b) and (c) Applies to Conformity ofAirports and Airspace to Government Standards. 3) Chapter447 Applies to requirements ofPilots and Aircraft to Conformto Safety Standards. 4) Chapter449 Listthe requirements ofAirlines and Airports to provide the proper security standards to passengers on aircraft. It is the Respondent's Understanding after review ofthe code that taken in their entirety, the Chapters and Sections ofCode Listed within 49 U.S.C. 46301(a)(5)(A) apply to Airports, Airlines, the employees ofsaid entities, the contractors ofsaidentities, and the employees and contractors ofthe FAA and Department ofTransportation that oversee said entities (ifthe Administrative Law Judge wishes, the Respondent can give further discussion on the individual chapters). In other words the code specifies the legal responsibility ofthose providing the service, and not those using the service (passengers).

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Based on the review 46301(a)(5)(A), the code was written in respect to the operators ofAirTravel, while the passengers who use the service were given all ofthe consideration as the material used to cover the seats ofthe aircraft. As a result ofthe vague interpretation of"
...a person otherthan an individual acting as
a pilot, flight engineer, mechanic, orrepairman
..", the FAA has usurped, or hijacked ifyou will allow, 46301(a)(5)(A). The use ofthe terms person, individual, are vaguely impliedto mean passenger, while the terms small business concern, pilot, flight engineer, mechanic, and repairman are all specific terms. Furthering the Respondent's standing that 46301(a)(5)(A) does not apply to passengers, the Respondent states this lack ofcodification ofpassenger rights and responsibilities are partly addressed byU.S.C. 49 §41706 and §46303 which specifyprohibitions against smoking on scheduled flights and carrying a weapon
on board respectively, which are passengerresponsibilities. Also ofnote is while §46303 states that "the individual.
.. is liable to the United States Government for
a civil penalty ofnot more than $10,000 for each violation", §41706 does not specify an amount ofcivil penalty while U.S.C. 49 §46301(b) "Smoke alarm device penalty" defines a penaltyin subsection (2) as the following: "An individual violating this subsection is liable to the Government for a civil penalty ofnot more than $2,000." In other words the code with respect to passengers is unclear, inconsistent, and ill-defined. Again, passengers are given as much respect
as seat fabric, or in consideration ofthe TSA, baggage. Itis the Respondents firm beliefthat all coding of49 U.S.C. be rewritten to remove the statement ofindividual, and that 49 U.S.C. 46301 be solely focused& •
I' on the operators ofthe service. A separate section of49 U.S.C. should be introduced to regulate the actions ofpassengers, and to specificallymention

·passengers in the coding, and not individuals (or users/consumers ofthe service).

Again, the Respondent has given the Federal Government $3 million offree consulting advice. In summation, itis the Respondent's position that the assessment under49 U.S.C. 46301(a)(5)(A) bythe Complainant is invalid, and no actual codified guidelines in 49 U.S.C. exist for the violations as cited. 4. Statement ofRespondent concerning facts centered on events ofFlight#3049. Given the results ofthe filings and !estimonyprovidedby witnesses, the Respondent gives his summation ofthe facts ofFlight#3049. The Respondent, prepared for Flight #3049 bypacking his baggage overnight and travelling to the airport early in the morning. The respondent without sleep travelled to the airport. The Respondent was under treatment for depression and social anxiety, and took medication to that effect prior to leaving for the airport. Once in the terminal, and at the airport gate, the Respondent and a female passenger, Ms. Tomchik, were the onlypassengers in the Business Select boarding line for Southwest Airlines Flight#3049. A conversation began between the Respondent and Ms. Tomchik while in line prior to boarding and continued at least an hour into an approximately four hour flight. This conversation lasted long enough that the Respondent andMs. Tomchik exchanged personal information with one another. During this time frame, Southwest Airlines flight attendantsoffered the Business Selectpassengers a complimentary alcoholic beverage. The Respondent ordered and drank an Irish Coffee. Ms. Tomchik, and some point began to tire ofthe conversation, but did not specifythisto the Respondent. Ms. Tomchik moved during the flight, and this began the interaction ofthe Respondent and Ms. Tomchik with the fight crew of Flight #3049. After several interactions, the Respondent met with the flight attendants of Flight#3049 at the rear ofthe aircraft, and a gentleman's agreement was reached amongst the Respondent and the flight crew. The Respondent agreed to be reseated at the back ofthe plane, would allow the·flight crew to perform service,
as long as Ms. Moorman would return to the rear ofthe plane and speak to the Respondent. Little did the Respondent know that Ms. Moorman had no intention ofreturning to speakto the Respondent. When itbecame clear to the Respondent that Ms. Moorman was not going to return to the re.ar ofthe plane, the Respondent sought out Ms. Moorman at the front ofthe aircraft. The Respondent can provide evidence to the fact that he had a prescription for medication. The Respondent cannotprove that the medication orbeverage was ingested, as no blood or urine samples were taken byofficials at the Las Vegas airport. Also, the drink tickets were handed out to the Respondent in line priorto boarding the aircraft, and were taken in exchange for the beverage, so the Respondent cannot prove that a beverage was served. Itis the Respondent's position that once the Flight crew served the Respondent a complimentarybeverage, for which the Respondent did not request, norpurchase, the Flight crew became responsible and liable for any and all actions ofthe Respondent. 5. Statement ofRespondent concerningpre-hearing conference withFAA representative Jim Conneely. When the Respondent was first issued the Notice ofProposed Civil Penalty, the Respondent's first interactions with the FAA were handled through Jim Conneely. The Respondent initially was issued a Violation of 121.580 and a proposed fine of$5,500 on 2/25/2010. Atthis time the maximum fine was stated
as $11,000. The Respondent requested an informal in-person conference on 4/5/2010, which was confirmed bythe FAA. On 4/7/2010, a mere two days later

.the Respondent was issued an Amended Notice ofProposed Civil Penalty stating that the Respondent "
...appears..." to have violated Section 121.317(f), 121.317(k) and 121.580. The maximum total now being $33,000, as each violation carried an $11 ,000 maximumpenalty. The Respondent maintains that the Complainant used this Amended notice as intimidation as to say 'justpay the $5,500 and all ofthis will go away', otherwise we can make it worse on you. The Respondent then entered into informal, in-person conferences with the Complainant's counsel. During these conferences it was revealed bythe Respondent to the Complainant that the Respondent was beingtreated for anxiety and that the Respondent had wished, and begun training, for his own Private Pilot's license (ifthe court wishes, the Respondent can supply documentation as to the fact that the Respondent was seeking a Private Pilot's License). Itwas the Complainant's counsel's suggestion that the Respondent not use this informationin his defense, otherwise it would make it at least difficult, orimpossible, for the Respondent to achieve certification for a Private Pilot's License. Since this was· an informal, in-person conference, the Respondent cannot provide documentation to this effect. The Respondent has maintained his innocence and continued to pursue clearinghis name. Itis the Respondent's beliefthat the Complainant had taken the position of"justpaythe $5,500 and this will all go away" and continued to attempt to intimidate the Respondent by adding charges and increasing the potential fine. Also, the Complainant continued this tactic by issuing the Motion for Protective Order against the Respondent when the Respondent sought no further interaction with Ms. Tomchik 6. Charges that apply, and evidence ofthe hearing that support the charges were not violated.
a. TheRespondent was initially charged with Section 121.580, and itis the Respondent's position that this is the only applicable charge. i. Ifthe Respondent had not requested an informal in-person hearing the Complainant would have never issued violations for 121.317(t) and 121.317(k). This is evident in the fact ofthe Complainant's counsel issuing additional charges and emphasizing the increase in the maximumpossible penalty, and the Complainant's issuance of the Motion for Protective Order. b. The Respondent is not a lawyerbytrade.i. The Respondent has not attended law school or attempted a bar
exam in any way shape or form.
11. The Respondent has maintained innocence throughout these proceedings and has not agreed that he violated the chargesin any way.
c. The Complainant's own witnesses have disproven the Complainant's allegations. i. When asked about the interactions ofMr. Wallaesa leading up to the end ofthe flight, a trained FBISpecial agent ofnine years testified to the fact that the seat switching Tr. pg107.1-107.9 "It looked like it was up in front ofme. Since Southwest, there is
no... you know assigned seating, I assumed that it was maybe, two people that got on, and couldn't sit next to each other, but were... you, know, trying to sit next to each other. You know,just asking

... you know, ifsomebody would switch, or something, so they
can ... you know, ifthey knew each other, they could sit there and talk." ii. When Ms. Tomchik was asked how she indicated to the Respondent she no longer wanted to have contact with him she responded Tr. pg 27.12-27.15 "For one, I got mybook out, thinking that would give him the point thatI was done talking. Once that didn't work, I go myiPodout and figured that would give him the point ifI have headphones
on that I'mfinished speaking to him." When Ms. Tomchik was asked ifMr. Wallaesa had attempted to contact her as he walked toward the front ofthe plane at the end of the flight Tr. pg.30.13.-30.14 "As I previously stated, he walked by and did not look at me or say anything." Ms. Tomchik agreed that afterMr. Wallaesa's attempt to contact Ms. Tomchik which lead to the conference at the back ofthe plane, Mr. Wallaesa did not attempt to make any further contact with her. iii. When Ms. Moorman was asked ifMr. Wallaesa threatened her she stated Tr. pg 61.1 "Mr. Wallaesa did not physically threaten me..." iv. When Mr. Dumond was asked ifMr. Wallaesa threatened him, his physical person, orthe plane itself, his answer was Tr.pg.99.17-99- 20 "No" When further asked ifMr. Wallaesathreatened any other flight attendants, his response was Tr.pg99.23 "Iwas not witness to that ifhe did" FBIAgentMollica, Ms. WendyMoorman, and Mr. Robert Dumond, the three main witnesses at the hearing all stated that the Respondent did not threaten them, anyone on the plane, orthe plane itself. The FBIAgent specifically statedthat his observations ofthe interactions ofMr. Wallaesa with the flight crew and passengers onboard ofthe flight appeared normal for a Southwest airlines flight. So therefore, how interference cannot be considered ifthe interactions were considered normal and non-threatening bythe Complainant's own witnesses. Taken in the fact that the testimony ofthe Witnesses state that Mr. Wallaesa did not threaten them, the passengers orthe plane in any way, and that the interactions appeared normal by observation ofa Law Enforcement Offical, the entire middle section ofthe flight is taken out ofconsideration for violation of 

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## u.s.c. At the close ofthe hearing, the ALJ stated that Tr.pg158.19-158.25 "
...All ofthis other stuffaboutinteractions with Mr. Mollica, and communications with Mr. (sic) Tomchik are not directlyrelevant to that allegation" Based on that information, the beginning and end ofthe flight are removed from consideration. Given that the witness testimony eliminates the middle ofthe flight, and the beginning and end ofthe flights were eliminatedbyALJ decision. There was
no interference that occurred onthe flight, and no Civil Penaltyis warranted. 

### 7. Discussion ofTestimony ofHearing as it applies to fines. Throughout the hearing several ofthe Complainant's witnesses stated that there were circumstances in which passengers would be moved while the Fasten Seat Belt sign is illuminated. Several circumstances were brought to light wherepassengers could apparently violate the FAAcode, but would be excusable and no fines would be sought. When Ms. Moorman was asked ifshe had experienced any medical emergencies priorto November 6, 2009 she stated Tr.pg62.5 and Tr.pg62.7-62.9 "
...probablyhad five or six medical emergencies." "Heart attack, stroke, I had a ladythat fainted, a lady was hyper hyperventilating at onepoint, the last one was a child choking." When Mr. Dumond was asked ifhe had experienced any medical emergencies prior to November 6, 2009 he stated Tr.pg.92.16-92.26 "
...she told the crew she was allergic to certain perfumes and colognes, and she needed to make sure she wasn't seated near anyone that had a lot of colognes on. So, she moved several times during the flight. The lavatory was sprayed with a certain deodorizer and that affected her, so we had to take her to the front ofthe plane, and had to administer oxygen, and call ourmedical consultant to get advice. That is how that was handled." Based on this testimony, there are situations that arise outside normal procedures on flights that would cause the Flight Crew to divert their attention. Further testimony demonstrates how much ofthe Flight Crew's time this would occupy. When Ms. Moorman was asked about the time required to attend to a passengerin distress, her answer was Tr.pg.62.17-62.18 "
.. .Ihave to take care ofthatperson until it is resolved." When Ms. Moorman was asked about the duration oftime taking the entirety ofthe flight, herresponse was Tr.pg63.5"Possibly." When Mr. Dumond was asked about the duration oftime it took for his medical emergencyhe stated Tr.Pg93.8-93.9 "Percentage-wise, probably about 50percent ofthat flight." Based on the testimony ofthe Flight Crew apassenger emergency may require 50 percent to 100percent ofthe flight attendant's time. 

### 8. Discussion ofPrecedent 

### Cases and level ofPenalty. In the Complainant's brief, the Complainant reiterates conversations with Ms. Tomchik and Mr. Mollica, reintroduces FAA Order 2150.3B, continues to list non-precedence cases, and includes 121.317(t) and 121.317(k), even though the Complainant never assigned monetarypenalty. The ALJ had directed the Complainant not considerthese cases. The Respondent does not believe that the evidence presented bythe Complainant is enough proofthat a violation did occur. Furthermore the Respondent respectfully asks for clarification ofwhich section ofcode he is officially charged ofviolating, ifany. The Respondent believes that the Complainant can only cite 121.580 and that the evidence suggests in the hearing that the Respondent did not violate that section through the testimonies ofthe flight crew or special agent Mollica. 

### CONCLUSION Itis the Respondent's position that the facts presentedbythe Complainant do not warrant a civil penalty, and that the conclusion should be that no penalty should be assessed. In the Complainant's notice, 121.580is the first, and only, cited violation, and therefore can be the only one that is argued upon. Itis the Respondent's request that the

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focus be centered on 121.580, that FAA Order 2150.3 B be ruled as inadmissible bythe ALJ, and that discussion shouldbe focused on what the ALJ has decided. In the Complainant's brief, a claimhas been made that the Respondent sought his
own interests overthe interests ofthe other 'individuals' on board Flight #3049. The Respondent maintains that this 

### is untrue. The Respondent claims that the FAA, and therefore the Federal Government regards passengers on board Aircraft with no more regard than the baggage stowed in the belly ofthe Aircraft. The Respondent claims that the FAA disregards the medical 

### condition ofmental impairment and as a result oftragic events, regards all passengers as potential terrorists. It 

### is the Respondent's beliefthat any discussion to change these opinions and beliefs is met with great resistance. The Respondent's own interaction with the Complainant's counsel shows the level of intimidation that the agency will use in orderto propagate currentbeliefs. FAA Order 2150.3 B demonstrates the Complainant's 

### intentions to subvert the actual legal process to institute its own beliefs, procedurebe damned. The Respondent has been taught throughout his life that ifhe believes something is incorrect, he must raise his voice to correct it. Citizenship 

### is actually a difficult thing; it requires vigilanceby all involved. However, the legal systemin this countryis an adjustable entity, and allows us to make changes as the majority sees fit. All ofthe legal proceedings regarding Flight #3049 have taken nearly three years to resolve. They have cost the Respondent way in excess of$5,500 oreven $33,000 in time effort, and actual monetary cost. The Respondent is not a lawyer, and has chosen to represent himselfin these proceedings so everything may have not been fully formal. However, the Respondent is

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familiar with, and has experience in, the law. The Respondent has chosen to represent himselffor no otherreason than to point out the errors, inconsistencies, and issues he has
seen in interaction with this system. The Respondent requests any leniency available to him as a layperson, and would like to reply to the Court in the best waypossible. I not that in the transcript, the due date for the Respondent is not listed Trpg.158.7. I also request that the Respondent have an opportunityto reply to the Complainant's filing on 8110112 by 8/24112 and the Complainant have an opportunity to respond to that filing on 917/12. Whatever the outcome, the Respondent has wished to point out the issues in the Federal Code, the issues with the Actions ofthe FAA, and the fact that passengers are regarded as another object on board the plane, and not as breathing, functioning human beings. Whateveris decidedin the case, the Respondent feels satisfaction that these items have been uncovered and that future discussion may correct them.

Dated July 26, 2012 Respondent 11272Wortham Crest Circle Manassas, VA 20109 (570) 778-1335