' ' 

In The Matter Of: 

SCOTTTICE 

Respondent 

SERVED: September 8, 2014 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HEARINGS 

WASHINGTON, DC 

Docket No. FAA-2013-0042 

Case No. 2012NE700211 

ORDER DENYING THE FAA'S MOTION FOR 

DISPOSITIVE RELIEF UNDER SUMMARY JUDGMENT REVIEW 

On May 21,2013, an Order Granting FAA Renewed Motion to Deem Allegations 

Admitted and Granting/Denying.Other Relief was filed. This Order found that in both the 

Respondent's Answer and Response to the FAA Motion, he had admitted the truth of the FAA's 

alleged hazardous material ("hazmat") violations. This Order also found that the FAA's , 

proposed $600 civil penalty remained in dispute. (5/21/13 Order, 1-2.) 

On June 13, 2013, the parties appeared by telephone for a Litigation Scheduling 

Conference, and discussed discovery, possible hearing dates/times, and their calendar 

availability. On June 14, 2013, an Order Setting Discovery and Motion Deadlines was filed. 

Among other things, this Order set deadlines for fil~ng dispositive and/or summary judgment 

motions, and set October 10, 2013 for oral argument on such dispositive motions. 

On October 1, 2013, an Order Cancelling Telephone Conference was filed. This Order 

was issued because of the federal government shutdown, which lasted for almost three weeks 

during the month of October 2013. 

On October 23, 2013, an Order Setting Deadline for the FAA to Answer the 

Respondent's Motion to Correct the Transcript and Rescheduling the Telephone Motion 

Conference was filed. 
On November 14, 2013, the parties convened by telephone for a Motion Conference, and 

presented oral argwnent on the FAA's August 20, 2013 Motion for Decision on Issue of Civil 

Penalty. At the conclusion of the Motion Conference, the parties orally agreed that there was no 

further need for a hearing. Ifthe FAA's Motion for Summary Judgment was not granted, the 

court could resolve the dispute on the written submissions. (11114/13 Tr. 50-52.) 

On November 21, 2013 an Order Correcting June 13, 2013 Transcript was filed. 

A. Notice of Violation and Proposed Penalty Assessment 

On or about January 29, 2013 the Federal Aviation Administration's (FAA) Division 

Administrator for the New England Region filed a Complaint with the U.S. Department of 

Transportation's (DOT) Office of Hearings. In its Complaint, the FAA alleged that on or about 

September ll, 2012, the pro se Respondent, Scott Tice, had committed ten ( 1 0) violations of the 

Hazardous Materials Regulations, under 49 C.F .R. § 17 i .2( e) et. seq. when he offered checked 

baggage containing a hazard material for transportation in air commerce. (Complaint, 1-4.) The 

FAA proposed a total penalty of $600 for the ten (1 0) violations. (!d., 4). 

B. Respondent Admission of the Ten (10) Violations 

On May 21,2013 an Order Granting FAA Renewed Motion to Deem Allegations 

Admitted and Granting/Denying Other Relief was filed. Among other things, this May 21, 2013 

Order found that the Respondent, Mr. Scott Tice, had admitted committing the ten (10) alleged 

violations of the Hazardous Materials Regulations, charged by the FAA under in its January 29, 

2013 Complaint. The May 21, 2013 Order also found that Mr. Tice had not admitted to the 

appropriateness of the FAA's proposed $600 civil penalty, and this disputed issue remained for 

hearing. 

C. FAA Motion for Summary Judgment Relief 

Pursuant to 14 C.F.R. § 13.218, a party may file motions, including a motion for a 

decision on the merits, in advance of a hearing when a party asserts that there is no disputed 

material issues offact to be heard. Pursuant to 14 C.F.R. § 13.218(£)(5), any motion for a 

decision on the merits prior to a testimonial hearing is reviewed under the same standard as a 

summary judgment motion. See also, Fed. Proc. Civ. R. 56. 

Page 2 of6 
On August 20, 2013 the FAA filed a Motion for Decision on Issue of Civil Penalty, in 

which it sought pre-hearing dispositive relief on the FAA's proposed civil penalty of$600. 

(Motion, 7.) Pursuant to 14 C.F.R. § 13.218 and Rule 56, this FAA Motion must first be 

reviewed under the same standard as a summary judgment motion on the disputed issue of the 

proposed $600 civil penalty. If the Motion is denied under a summary judgment standard, then a 

separate Decision may subsequently issue- if the parties offer the same materials and arguments 

in lieu of live testimony. 

D. Standard of Review for Summary Judgment 

. The purpose of summary judgment is "to isolate, and then terminate; claims and defenses 

that are factually unsupported." Steven Baicker-McKee, et.al, Federal Civil Rules Handbook, 

West Publishing (2012) (Rule 56). 

Pursuant to Civ. R. 56( a), a summary judgment motion may be granted if "the movant 

shows that there is no genuine dispute as to any material fact and the movant is entitled to 

judgment as a matter oflaw." See, Anderson v. Liberty Lobby Inc., 477U.S. 242, 247-48 (1986); 

Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Circuit 2006). In addition, pursuant to Rule 56(f), 

summary judgment may also be granted to a non-moving party, after all parties have had notice 

and a reasonable time to respond. 

A fact is "material" if it is capable of affecting the substantial outcome of the litigation. 

Holcomb, 433 F.3d at 895; Liberty Lobby, Inc., 477 U.S. at 248. A dispute is "genuine" if the 

evidence is such that a reasonable trier of fact could return a verdict for the non-moving party. 

See, Scott v. Harris, 5550 US 372, 380 (2007); Liberty Lobby Inc., 477 US at 248, Holcomb, 433 

F.3d at 895. 

On a motion for summary judgment, all evidence and inferences are to be viewed in light 

most favorable to the non-moving party. However, a non-moving party (e.g., the Respondent 

herein answering the FAA's Motion) may not rest upon mere denials or allegations in the 

pleadings. Pursuant to Civ. R. 56( c), (d), and(~), a non-moving party who wishes to proceed to 

trial must respond to the motion for summary judgment, and set forth specific facts sufficient to 

show there is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). See 

also, Citizens State Bank of Big Lake v. Transainerica Ins. Co., 815 F.Supp. 309 (D. Minn. 

Page 3 of6 
1993); Steven Baicker-McKee, et.al, Federal Civil Rules Handbook, West Publishing (2012) 

(Rule 56) (a non-moving party may produce materials, and/or cite to materials produced or not 

produced by the movant in resisting the summary judgment motion). 

Pursuant to Civ. R. 56 (c)(l)(A), specific facts alleged by either party may be asserted by 

submitting or citing to a variety of documents and declarations. Materials submitted during 

summary judgment proceedings must be capable of being offered at trial in an admissible form. 

See, Steven Baicker-McKee, et.al, Federal Civil Rules Handbook, West Publishing (2012) (Rule 

56) (emphasis added). Once the moving party has established a prima facie case, the burden 

shifts to the non-moving party to show, by affidavit or otherwise, that a genuine dispute of 

material fact remains for the fact-finder to resolve. (!d.) 

On a summary judgment motion, the court does not rule on the weight of the evidence. 

See Steven Baicker-McKee, et.al, Federal Civil Rules Handbook, West Publishing (2012) (Rule 

56) (The court never weighs the evidence, evaluates credibility or makes findings on disputed 

facts in summary judgment proceedings.). 

E. Admissibility of FAA's Summary Judgment Factual Proof 

The FAA did not submit any admissible evidence or exhibits as factual proof in support 

of its pre-hearing Motion. Instead, the FAA presented a variety of arguments in its Motion, and 

referenced its sanction guidance policies contained in FAA Order 2150.3B, Appendix C. 

(Motion, 2-3.) 

F. Admissibility of Respondent's Summary Judgment Factual Proof 

In reviewing motion materials submitted by a prose litigant, Fed. R. Civ. Proc. 11 allows 

Mr. Tice, who is representing himself, to make statements in a motion, submitted with his 

signature, without filing such statements in affidavit form. See, Steven Baicker-McKee, et.al, 

Federal Civil Rules Handbook, West Publishing (2012)(Rule 11(a)- Verification and 

Affidavits )("The signature of a party ... is the substitute for prior verification practices.") 

On April22, 2013, May 20, 2014, and on September 24, 2013 Mr. Tice filed signed 

statements in which he discussed the September 8, 2014 incident, and offered various facts and 

arguments he believed should be taken into account in the assessment of any civil penalty. 

Pursuant to Rule 11, these are verified statements by an unrepresented party that are admissible 

Page 4 of6 
as evidence. In addition, like the FAA, the Respondent presented a variety of arguments in his 

Response, and also referenced the FAA's sanction guidance policies. (Response, 2.) 

G. Proposed Civil Penalty 

It was undisputed that the "range for the total civil penalty to be assessed absent 

mitigating, or aggravating factors," according to the FAA's sanction guidance policy, was $250 

(the statutory minimum) to $1,000 (the statutory maximum) for sanctions applicable to air carrier 

and commercial operator passengers. (FAA Order 2150.3B, Appendix C, Paragraph 8(h) at C13.) FAA Order 2150.3B, ~8(h). 

In its Motion, the FAA argued that its proposed $600 civil penalty was appropriate in this . 

case because, according to the FAA, it had calculated the amount in accordance with the FAA 

sanction guidance policy contained in FAA Order 2150.3B (CHG 4) and in 49 U.S;C. § 5213(c). 

(Motion, 1 and 3). The FAA agreed, however, that it had given certain statutory factors a 

specific weight to determine the aggregate weight of the case. The FAA then used a Matrix to 

narrow the penalty range. It then selected a sanction within that Matrix range that it considered 

"appropriate" for the violations. (Motion, 3.) 

In his Response, the Respondent argued that the FAA had failed to either properly weight 

the facts of the case or select an appropriate sanction. It was undisputed that the canister found 

in his baggage contained only a small amount of fuel (e.g., less than a teaspoon). (Response, 2.) 

This fact, along with others, should have been considered. The Respondent argued that the civil 

penalty assessed in this case should be the minimum amount. (!d.) 

In summary judgment review, all evidence must be viewed in a light most favorable to 

the non-moving party (i.e., the Respondent in this case). After reviewing the FAA's arguments, 

as well as the Respondent's signed statements and arguments regarding the proposed civil 

penalty in a light most favorable to Mr. Tice, the admissible facts underlying the calculation of 

the proposed civil penalty remain in dispute. The FAA has not proved under summary judgment 

review, as a matter of fact or law, that the Respondent should be assessed a penalty of$600 for 

the ten ( 1 0) violations. 

Page 5 of6 
H. CONCLUSION 

Pursuant to 14 C.F.R. §13.218(t)(5}and Civ. R. 56, after having reviewed all admissible 

evidence, and considered all relevant caselaw, decisions, regulations, statutory authority, 

motions, and pleadings, and after having heard oral argument on the Motion, and being fully 

advised; 

IT IS HEREBY ORDERED: 

1. Pursuant to 14 C.F .R. § 13.218 and Rule 56, the FAA's Motion for pre-hearing 

dispositive relief, reviewed under a summary Judgment motion standard, is denied. There 

remain genuine issues of material fact in dispute regarding the calculation of the 

proposed civil penalty. 

2. Pursuant to the parties' oral agreement on November 14, 2013, the disputed issue of the 

calculation of the proposed civil penalty will be resolved by this court by considering the 

parties' written submissions in lieu of the parties appearing at hearing and presenting 

testimonial evidence. 

3. An Initial Decision will issue shortly on this matter. 

Attachment: Service List 

Page 6 of6 
SERVICE LIST- BY U.s·. MAIL 

. ORIGINAL & ONE COPY 

Federal Aviation Administration 

800 Independence Avenue, S.W. 

Washington, DC 20591 

Attention: Hearing Docket Clerk, AGC-430 . 

Wilbur Wright Building-Suite 2Wl 0001 

Mr. R. Bennett Sargent 

Complainant's Counsel 

Office of the Regional Counsel, ANE-7 

New England Region 

Federal Aviation Administration 

12 New England Executive Park 

Burlington, MA 01821 

TEL: 781-238-7058 

FAX: 781-238-7055 

Mr. Scott Tice 

Pro se Respondent 

21125 Timberland Road 

Barronett, WI54813-9540 

scott@ticetech.com 

Judge J.E. Sullivan 

US. Administrative Law Judge 

Office ofHearings, M-20 

U.S. Department of Transportation 

.ONE COPY 

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

Washington, DC 20590 

TEL: 202-366-6941 

FAX: 202-366-7536 

FDMS No. FAA-2013-0042 

(Civil Penalty Action) 

1 Service was by U.S. Mail.. For service in person or by expedited courier,. use the following address: Federal 

Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2W1000, Washington, 

DC 20591; Attention: Hearing Docket Clerk, AGC-430.