### ''

In The Matter Of: SCOTTTICE Respondent 

## SERVED: September 8, 2014 U.S. 

### DEPARTMENT OFTRANSPORTATION OFFICE OFHEARINGS WASHINGTON, DC

Docket No. FAA-2013-0042 Case No. 2012NE700211

ORDERDENYING THE FAA'S MOTION FOR DISPOSITIVE RELIEF UNDER SUMMARYJUDGMENT REVIEW
On May 21,2013, an Order Granting FAA Renewed Motion to Deem Allegations Admitted and Granting/Denying.Other Reliefwas filed. This Order found that in boththe Respondent's Answer and Response to the FAA Motion, he had admitted the truth ofthe 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, theparties 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 otherthings, this Order set deadlines for**fil~ng** dispositive and/or summaryjudgment motions, and set October 10, 2013 for oral argument on such dispositive motions.
On October 1, 2013, an Order Cancelling Telephone Conference wasfiled. This Order was issuedbecause ofthe federal government shutdown, which lasted for almost three weeks during the month ofOctober 2013.
On October 23, 2013, an Order Setting Deadline for the FAA to Answerthe Respondent's Motion to Correctthe Transcript and Rescheduling the Telephone Motion Conference was filed.OnNovember 14, 2013, the parties convened by telephone for a Motion Conference, and presented oral argwnent on the FAA'sAugust 20, 2013 Motion for Decision on Issue ofCivil Penalty. Atthe conclusion ofthe Motion Conference, the parties orally agreed that there was no further need for a hearing. Ifthe FAA'sMotion for Summary Judgment was not granted, the court could resolve the dispute on the written submissions. (11114/13 Tr. 50-52.) OnNovember 21, 2013 an Order Correcting June 13, 2013 Transcript was filed. A. Notice ofViolation 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 withthe U.S. Department of Transportation's (DOT) Office ofHearings. In its Complaint, the FAA alleged that onorabout September 

### ll, 2012, the

### pro se Respondent, Scott Tice, had committed ten ( 1 0) violations ofthe 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 (10) violations. 

### (!d., 4).
B. Respondent Admission oftheTen (10) Violations On May 21,2013 an Order Granting FAA Renewed Motionto Deem Allegations Admitted and Granting/Denying Other Reliefwas filed. Among other things, this May 21, 2013 Order found that the Respondent, Mr. Scott Tice, had admitted committing the ten (10) alleged violations ofthe 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 ofthe FAA'sproposed $600 civil penalty, and this disputed issue remained for hearing. C. FAA Motion for SummaryJudgmentRelief Pursuant to 14 C.F.R. § 13.218, a party may file motions, including a motion for a decision on the merits, in advance ofa hearing when a party asserts that there is no disputed material issues offactto be heard. Pursuantto 14 C.F.R. 

### § 13.218(£)(5), any motion for a decision on the merits priorto a testimonial hearing is reviewed under the same standard as a summaryjudgment motion. 

### See also, Fed. Proc. Civ. R. 56. Page 2 of6On August 20, 2013 the FAA filed a Motion for Decision on Issue ofCivil Penalty, in which it sought pre-hearing dispositive reliefon the FAA's proposed civil penalty of$600. (Motion, 7.) Pursuantto 14 C.F.R. § 13.218 and Rule 56, this FAA Motion must first be reviewed under the same standard as a summaryjudgmentmotion onthe disputed issue ofthe proposed $600 civil penalty. Ifthe Motion is denied under a summaryjudgment standard, then a separate Decision may subsequently issue- ifthe parties offer the same materials and arguments in lieu oflive testimony. 

### D. Standard of

### Review for 

### SummaryJudgment

. The purpose ofsummaryjudgmentis "to isolate, and then terminate; claims and defenses that are factually unsupported." Steven Baicker-McKee, et.al, Federal CivilRules Handbook, West Publishing (2012) (Rule 56). Pursuant to Civ. R. 56(a), a summaryjudgmentmotion 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. LibertyLobbyInc., 477U.S. 242, 247-48 (1986); Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Circuit 2006). In addition, pursuantto Rule 56(f), summaryjudgment 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" ifit is capable ofaffecting the substantial outcome ofthe litigation. Holcomb, 433 F.3d at 895; LibertyLobby, Inc., 477 U.S. at 248. A dispute is "genuine" ifthe evidence is such that a reasonable trier offact couldreturn a verdict for the non-moving party. See, Scott v. Harris, 5550 US 372, 380 (2007); LibertyLobbyInc., 477 US at 248, Holcomb, 433 F.3d at 895. On a motion for summaryjudgment, 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'sMotion) may not rest upon mere denials or allegations inthe pleadings. Pursuant to Civ. R. 56(c), (d),**and(~),** a non-moving party who wishes to proceed to trial mustrespond to the motion for summaryjudgment, and setforth specific facts sufficientto showthere is a genuine issue for trial. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). See also, Citizens State Bankof BigLakev. Transainerica Ins. Co., 815 F.Supp. 309 (D. Minn. Page 3 of61993); Steven Baicker-McKee, et.al, Federal Civil RulesHandbook, West Publishing (2012) (Rule 56) (anon-moving party may produce materials, and/or cite to materials produced ornot produced bythe movant in resisting the summaryjudgmentmotion). Pursuantto Civ. R. 56 (c)(l)(A), specific facts alleged by eitherparty may be asserted by submitting or citingto a variety ofdocuments and declarations. Materials submittedduring summary judgmentproceedings mustbe capable of beingofferedattrial in an admissible form. See, Steven Baicker-McKee, et.al, Federal Civil RulesHandbook, 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 orotherwise, that a genuine dispute of material fact remains for the fact-finder to resolve. (!d.) On a summaryjudgment motion, the court does notrule onthe weight ofthe evidence. See Steven Baicker-McKee, et.al, Federal Civil RulesHandbook, West Publishing (2012) (Rule 56) (The court never weighs the evidence, evaluates credibility ormakes findings on disputed facts in summaryjudgmentproceedings.). 

### E. Admissibility ofFAA's SummaryJudgment FactualProof The FAA did not submit any admissible evidence or exhibits as factual proofin support ofits pre-hearing Motion. Instead, the FAA presented a variety ofarguments in its Motion, and referenced its sanction guidance policies contained in FAA Order 2150.3B, Appendix C. (Motion, 2-3.) 

### F. Admissibility ofRespondent's SummaryJudgment Factual Proof In reviewing motion materials submitted by aprose litigant, Fed. R. Civ. Proc. 11 allows Mr. Tice, who is representinghimself, to make statements in a motion, submitted with his signature, without filing such statements in affidavit form. See, Steven Baicker-McKee, et.al, Federal CivilRules Handbook, West Publishing (2012)(Rule 11(a)- Verification and Affidavits)("The signature ofa 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 ofany civil penalty. Pursuantto Rule 11, these are verified statements by an unrepresented party that are admissible Page 4 of6as evidence. In addition, like the FAA, the Respondent presented a variety ofarguments in his Response, and also referenced the FAA's sanction guidance policies. (Response, 2.) 

### G. Proposed Civil Penalty Itwas undisputed thatthe "range for the total civil penalty to be assessed absent mitigating, oraggravating 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 inthis
. 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 (CHG4) and in 49 U.S;C. § 5213(c). (Motion, 1 and 3). The FAA agreed, however, that 

### ithad given certain statutory factors a specific weight to determine the aggregate weight ofthe case. The FAAthen used a Matrix to narrow the penalty range. Itthen 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 eitherproperly weight the facts ofthe case or select an appropriate sanction. It was undisputed that the canister found in his baggage contained only a small amount offuel (e.g., less than a teaspoon). (Response, 2.) This fact, along with others, should have been considered. The Respondent arguedthatthe civil penalty assessed inthis case should be the minimum amount. (!d.) In summaryjudgmentreview, allevidence 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 summaryjudgment review, as a matter offact orlaw, that the Respondent should be assessed a penalty of$600 for the ten ( 1 

## 0) violations.

Page 5 of6H. CONCLUSION Pursuant to 14 C.F.R. §13.218(t)(5}and Civ. R. 56,afterhaving 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. Pursuantto 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 ofmaterial fact in dispute regarding the calculation ofthe proposed civil penalty. 2. Pursuantto the parties' oral agreement onNovember 14, 2013, the disputed issue ofthe calculation ofthe proposed civil penalty will be resolved by this court by considering the parties' written submissions in lieu ofthe parties appearing at hearing and presenting testimonial evidence.
3. An Initial Decision will issue shortly onthis matter.

Attachment: Service List

Page 6 of6SERVICE 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 2Wl000 1

Mr. R. Bennett Sargent Complainant's Counsel Office ofthe 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 LawJudge Office ofHearings, M-20 U.S. Department ofTransportation .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.