FAA .. OMS I4J001/018 03/24/2010 10:37 FAX 2024935142 

u.s. DEPARTMENT·OF TRANSPORTATION 

OffICE OF HEARINGS 

WASHINGTON, D.C. C0 ~) y 

IN THE MAnER OF GERALD KELLER 


Petitioner/ Appella nt 


,...... ~ ....."" ~.~ I '. ,",", •

FAA DOCKET NO. CP06GL0007 

OMS NO. FAA-2006-2S869 t •.""\

I '~I. \ 

REFERENCE NO. AGl-7E 2008-GL-13-0038 

ADMINISTRATOR/DECIONMAKER 

OR THE FEDERAL AVIATION ADMINISTRATION 

PETITION FOR REVIEW AND DISMISSAL 


OF ORDER ASSESSING CIVIL PENAL TV WITH PREJUDICE 


AND/OR APPEllANT'S BRIEF 


Pursuant to Sections 13.219, 13.233, and/or 13.234 of the 

Federal Aviation Regulations and 49 U.S.C. § 46301, Gerald W. Keller, 

the Petitioner/Appellant in the above cause, respectfully requests the 

Administrator of the Federat Aviation Administration to dismiss Order 

Assessing Civil Penalty with prejudice because the FAA was estopped 

from instituting a second enforcement action based on the same facts 

initiated in its withdrawn complaint in Violation of Section 13.215 of 

Federal Aviation Regulations. In support, Keller shows the following: 

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STATEMENT OF FAcrS1 

1. On September 1, 2006, Keller was advised through a Final· 

Notice of proposed Civil Penalty that the Federal Aviation 

Administration (Agency) proposed to assess a civil penalty in the 

amount of $2500 for alleged incident occurring on December 18, :2005 

while he was boarding Air Iran Airways Flight 635 scheduled to 

operate from Milwaukee, Wisconsin to Atlanta, Georgia. On September 

S, 2006, Ketler submitted a written request for hearing and, on 

September 22, 2006, the Agency filed Complaint alleging that Keller 

physically pushed other boarding passengers as he went down the 

aisle to his seat and constituted an assault on passengers aboard that 

aircraft in violation of 49 U.S.C. § 46318. (OMS No.2). On October 17, 

2006, in lieu of tiling an answer, Keller filed Motion to Dismiss: the 

Complaint and listed stgnificant reasons to dismiss including the failure 

to allege facts to support a violation of 49U.S.C. § 46318. (DMS No. 

3). The Agency maintained that the "notice pleading" was sufficient in 

detail to advise the facts of the case and regulatory violation and 

sanction sought. (DMS No.1). On November 30, 2006, Administrative 

Law Judge (ALl), Judge Isaac Benkin, agreed with the Agency, and 

denied Keller's motion but pointed out -- "[n]either drunkenness nor 

1 The motions/documents filed by both parties and Orders on those motions by the 

admInistrative law judge are found at the Agency's webSite address: 

httpl/wwlN.regulations.gov, and posted DMS No.FAA-2006-25869-(numbf!r of 

document). The documents and orders referred to herein are labeled (OMS No. -J. 

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engaging in verbal altercations is an element of a violation of 49 

U.'S.C. § 46318," and concluded, "the agency decided to charge 

[Keller] with assaulting other passengers, not with assaulting a 

member of the crew; hence, there was no need to charge [Keller] with 

an assault on a crewmember." (OMS No.5). 

2. On motions dated November 17, 2006, Keller requested a 

hearing be held in the Southern Region (DMS No. 12) and requested 

discovery of witnesses and witness statements, written reports, 

documents, and any evidence favorable or arguably favorable to tlim.2 

In response, the Agency provided an investigative file consisting of 

parts A, B, C, and 0, but failed to include names of eyewitne~.ses, 

victims, or witness statements supporting the complaint, (OMS No. 

13).3 On motion dated February 13, 2007, Keller flied a second 

discovery request, mirroring the Agency's January 18, 2007 motion for 

discovery (OMS No. 14), and summarily requested names of victims 

2 Although Request for Discovery was properly filed and served on the Agency's 

attorney, the motion does not appear separately in the OMS docket file. A filed copy 

of the motion can be found in doc:ument OMS No. FAA-2006-25689-27, as. 

attachment marked "Exhibit 1 ". 

3 Also included in the Agency's discovery response, (OMS No. 13), Is the "OabinCrew Safety Report" completed by Flight Attendant Emmylou Carpenter. Ms. 

Carpenter is obviously the only eyewitness to Keller's action while boarding the 

aircraft and, on the first page of the report, Ms. Carpenter Indicated that Keller's 

conduct did not involve crew members and, on the second page, Ms.Carpcmter 

stated that the crew was "forewarned" of Keller's behavior prior to boarding, and 

requested that Keller be seated off the aircraft. Ms. Carpenter further indicated that 

Keller was Initially assigned seat l8A and changed to seat 26C because "he made 

rude remarks to those around him." However, there is not the slightest indication 

that Keller physically pushed other boarding passengers as he went down the aisle to 

his seat. 

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and eyewitnesses including witness statements, and documents filed 

by the Agency in other matters specifically pertaining to this matter; 

details of the Agency's contact with any crew member on Air Tran 

Airways Flight 635 and boarding passengers, and date and nature of 

contact concerning the e\fent~ and copies of all documents the Agency 

intended to introduce in evidence. 4 The Agency did not respond and, 

on motion dated March 22, 2007, Keller requested the AU to issue 

order compelling the Agency to respond to his discovery requiests, 

(OMS No. 25). In response motion dated March 26, 2007, the Agency 

claimed Keller's second request for discovery was "overlooked" until 

receipt of KeUer's motion to compel. 5 Despite the Agency's untimely 

and evasive response, in Order dated March 25, 2007, the ALl found 

that it could not rule on the validity of the discovery motions or the 

adequacy of the Agency's disclosure but noted that the Agency 

improperly responded to discovery requests by objections and attomey 

privileges, and directed Keller, "if he wishes," to file another motion to· 

compel and disclose the contents of the requested discovery, (DMS No. 

23). 

4 Although Keller's motion was properly filed on February 2.0, 2007, it also is not 

included as a separate record in the OMS docket file but can be found on page 8 of 

OMS No. FAA-2.006-25689~2.7, and page 5 of OMS No.FAA-l006-2S689-30. 

!) Although the Agency's response motion was dated after the Order was entered, 

and was not properly filed; the response can be found as "Exhibit 3" of Keller's 

motion for sanctions - (OMS No. 27). 

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3. In motion dated April 2, 2007, Keller requested the AU to 

sanction the Agency for attempting to obfuscate, delay, and trick him 

by refusing to disclose materially favorable evidence and contended 

that if there was merit to the Complaint the Agency would readily 

disclose the names of victims and eyewitnesses and any statement of 

witnesses who observed the incident. Seemingly such evidence is 

necessary to support a violation of 46 U.S.C. § 46318. (OMS No. 27). 

On AprilS, 2007, the ALJ conSidered the motion premature and denied 

sanctions but held the motion suffiCient to enter an Order compelling 

the Agency to provide names and occupations of alleged victims of the 

incident and eyewitnesses that gave rise to the case or provide 

. detailed steps taken 	to secure the information if not available, and 

ordered the Agency to provide the information on or before April 19, 

2007. In reaching this decision, the AU stated, "it is difficult to believe 

that if the FAA had asked the airline or its employees for the name and 

address of any passenger witnesses; those regulated parties would 

have refused to disclose it to the agency," and concludedl the AgE:ncy 

"cannot evade Its responsibility under its own procedural rules simply 

by saying it has provided [Keller] with all statements in its 

possession." (OMS No. 24). Thereafter, in motion dated April 10, 2007, 

the Agency's attorney requested reconsideration of the Order and 

additional time to provide the information, (OMS No. 29). In Order 

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dated April 13, 2007, the law judge extended the deadline date until 

April 26, 2007. In footnote 1 of the Order, the AU stated: "The 

complaint in this case specifically charged [Keller] with committing "an 

assault on passengers aboard that aircraft" by pushing other 

passengers as [he] went down the aisle to his seat. In light of this 

allegation, the statements of those other passengers, if :such 

statements exist, would seem central to the issues in the case." (OMS 

No. 26). In motion dated April 14, 2007, the Agency's attorney 

claimed partial compliance to discovery requests and admitted, as to 

the identity of victims and eyewitnesses and witness statements; the 

Agency had no knowledge as to whether such information was 

obtained/ did not obtain and does not have any such statements or 

knowledge any statements existed. The Agency further requested 

reconsideration of the April 5, 2007 Order a second time, and claimed 

it should not be compelled to engage in additional investigatIon to 

. satisfy Keller's curiosity. FinallyI the Agency requested a sec:ond 

extension of time to disclose the requested information. (OMS No. 31). 

Thereafter, the Agency filed a supplemental response to the April 13, 

2007 Order, and claimed two flight attendants as witnesses on board· 

the aircraft, and confirmed that the ASI investigator did not take or 

obtain any statements of passengers,. and neither TSA, the Milwaukee 

County Sheriff's Department, nor Air Tran Airways provided ASI with 

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any statements. (OMS No. 32). It is apparent that the Agency's 

complaint is based entirely upon the FAA's investigative file which 

consisted of the investigator's conclusion and, throughout the course, 

failed to provide one SCintilla of material evidence to support the 

complaint other than third party statements related to unknown 

passengers. 

4. In motion dated May 14, 2007, Keller requested the All to 

apply sanctions and prohibit the Agency's use of evidence which may 

refer to victims and witnesses and witness statements for violations of 

discovery rules. Keller further requested the AU to dismiss the 

Complaint based on unsubstantiated and misrepresented facts, and 

pOinted out materiaUy disputed facts presented in the FAA 

investigative file. Specifically, the Cabin-Crew Safety Report compl·eted 

by flight attendant Emmylou Carpenter clearly disputed the complaint 

and is the only eyewitness to Keller's action while boarding the 

aircraft. and Part A of the FAA investigative file spuriously indicated 

that, because of Keller's action, the aircraft had to return to the gate 

after taxing out, and clearly a misrepresentation of fact. (OMS No. 34). 

In motion dated May 21, 2007, the Agency responded to the motions 

and asserted compliance to discovery requests and "confirmed" that it 

had no statements in its possession from passengers or any other 

witness concerning the incident, and "confirmed" that Air Tran Airways 

7 

s 

.;. OMS 141008/018

03/24/2010 10:38 FAX 2024935142 FAA

did not have any statements, (DMS No. 36). On May 22, 2007, the AU 

denied Keller's motion for sanctions and found the motion devoid of 

any showing that the Agency failed to comply with orders, and stated, 

the Agency "cannot be faulted for failing to disclose the conten1ts of 

statements that do not exist." (OMS No. 33). If the statements dc) not 

exist then Keller did not physically push other boarding passengers., 

5. In motion dated May 29, 2007, pursuant to Federal Rules of 

Civil Procedure Rule 56 (c), and based on the facts discussed in the 

above paragraphs, Keller filed motion for summary judgment on the 

basis that the Agency, by its own admission, neither obtained nor had 

k'10wledge of any victims or eyewitness statements to support its 

allegation that Keller physically pushed other boarding passengers to 

constitute an assault and no genuine issue of material fact existed for 

a violation of 49 U.S.C. § 46318. (DMS No. 35). In response, the 

Agency claimed questions of fact alleged in the complaint remain in 

dispute because Keller acknowledged boarding the flight but denied 

physical contact amounted to an assault, and denied the Agency's 

characterization of his behavior. (OMS No. 38). However, It is the 

Agency's own record which belies the complaint's characterization of 

Keller's behavior, and immediately following Keller's request for 

summary judgment, the Agency filed motion captioned "Amended 

Complaint," and added an additional violation of Section 121.580 of 

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03/24/2010 10:38 FAX 2024835142 FAA

the Federal Aviation Regulations alleging that Keller's conduct was 

sufficiently disruptive that the aircraft crew deemed it necessary to 

have local authorities remove him from the flight. (OMS No. 37). In 

Order dated July 3, 2007, the ALJ set to rest both Keller's motion for 

summary judgment and the Agency's motion to amend the complaint. 

Although the law judge denied summary judgment, it noted Keller's 

objection to the amended complaint and agreed, '[n]ow, ... the FAA 

wishes to add a wholly new and different charge, j.e. that [Keller,] by 

his conduct, caused a crewmember, I.e. the captain of the aircraft, to 

deviate from his duties to speak with [Keller] and caused someone on 

the crew to have the local authorities remove [Keller] from the flight. 

All this is said to constitute a violation of § 121.580 of the FAR. In 

other words, the [Agency] now wishes to add a new charge alleging a 

violation of a different legal requirement, after discovery has been 

completed and motion practice has parsed the original charge set forth 

in the original complaint. I do not think it Is fair to allow the [Agency] 

to do so." The All, however, concluded: "In this instance there is not 

even a time-bar to excuse the [Agency's] conduct. If the FAA wishes 

to charge [Keller] with interfering with crew members in violation lof § 

121.580 of the FAR, there is nothing to prevent it from withdrawing 

this complaint and beginning the proceeding anew with a new Notice 

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of Proposed Civil Penalty charging a violation of § 46318, § 121.580, 

or both." (DMS No. 39). 

6. On July 19, 2007, the AlJ provided both parties notice of 

hearing to be herd in Atlanta, Georgia on October 4, 2007 at 10:00 

a.m. Thereafter, on July 25, 2007, the Agency filed motion to withdraw 

the Complaint without prejudice,and without providing any 

justification for a delay of the hearing, (OMS No. 44). Before Keller 

could respond, the All entered its Order dismissing the Complaint 

without prejudice, and noted that the Agency was well within the fiveyear statute of limitations under 28 U.S.C. § 2462 and the two-year 

limitations in 14 C.F.R. § 13.208(d) to file a new complaint. (OMS No. 

42). In motion dated July 30, 2007, and pursuant to Section 13.219, 

Keller moved the AU to vacate and set aside its Order because an 

administrative law judge is not authorized to dismiss the comp~alnt 

without prejudice and violated 14 C.F.R. § 13.215. (DMS No. 47). The 

Agency did not file a response to the motion and, although the AU was 

obJigated to enter a ruling on the motion or transfer the motion to the 

proper authority for a determination according to Section 13.219, 

there has been no ruling entered on the motion. According to DMS 

docket record, the ease is still pending final review. 

7. More than four years after the alleged incident, the Agency 

Issued Order Assessing Civil Penalty In pretext that, after consideration 

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of all the available information, Ketler physically pushed other boarding 

passengers as he went down the .aisle to his seat and constituted an 

assault on passengers and that this condoct interfered with the duties 

of cabin crewmembers In violations of 49 U.S.C. § 46318 and Section 

121.580 of FAR. The Order further claims that Keller was advised on 

March 26, 2008 through a Final Notice of Proposed Civil Penalty that 

the FAA proposed to assess a civil penalty in the amount of $2500. 

8. In motion dated March 5, 2010, the Agency moves to dismiss 

Keller's Notice of Appeal and/or Request for Extension of Time t9 

Appeal the administrative law judge's July 24, 2007 Order, and claIms 

Keller has twice failed to timely appeal. Keller's motion to vacate and 

set aside the Order was timely filed and pursuant to Section 13.205 of 

FAR, the law judge was obligated to enter a ruling on the motion Cit at 

the least transferred the motion to the proper authority for a 

determination. 

ARGUMENT AND CITAnONS OF AUTHORITY 

There is an abuse of discretion when an agency's decision is 

based on an erroneous conclusion of law or when the record contains 

no eVidence on which it could have rationally based that decision. Bay 

Area Peace Navy v. United States, 914 F.2d 1224, 1230 (9th elr. 

1990). A finding that an agency's position was substantially justi'fied 

when the agency's position was based on violations of the 

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Constitution, federal statute or the agency's own regulations, 

constitutes an abuse of discretion. Yang v. Shalala, 22 F.3d 213, 

217-18 (9th Clr. 1994). 

(A). 

Keller contends the Order. Assessing Civil Penalty is a nullity 

because the administrative law judge was not authorized to dismiss 

the Federal Aviation Administration's Complaint without prejudice. 

The Rules of Practice is set forth In 14 C.F.R. Part 13, Subpart G, 

of the Federal Aviation Regulations, and Section 13.215 provides: At 

any time before or during a hearing, an agency attorney may withdraw 

a complaint or party may withdraw a request for a heating without the 

consent of the administrative law judge. If an agency attorney 

withdraws the complaint or a party withdraws the request for a 

hearing and the answer, the administrative law judge shall dismiss the 

proceedings under this subpart with prejudice. In the U.S. Department 

of Transportation Federal Aviation Administration Air Traffic 

Organization Policy, effective February 11, 2010, Title 1-2-1 a, the 

word "shall" means a procedure is mandatory; therefore, the 

administrative law judge did not have discretion to dismiss the FAA 

Complaint without prejudice. See: In the Matter of Excell Cleaning & 

Building Services, INC., FAA Docket No. CP06SCE0003, OMS NO. FAA2006-247 16, "Order of Dismissal" served July 11, 2006; In the Matter 

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of Lewis Drake &. Associate~, FAA Docket No. CP03S00045, OMS. No. 

FAA-2003-16379, "Order Terminating Proceeding", served February 

26, 2005; citing Kerry James Eldridge, FAA Docket CP89GL0458, 

"Order Canceling Hearing and Terminating proceeding", served 

January 16, 199 l,at 1; In The Matter of Robert Harris FAA Docket: No. 

CP03EA0001, OMS No. FAA-2002-14236., Orders dated October 18, 

2004 and October 27, 2004. US AIR, Inc. • FAA Docket CP90NEQill, 

Tran§ WorldAi[lines, Inc~. FAA Dockets CP90GL0085 CP90CE0110. 

CP90CE0114, CP90CE0134, Order of Admjnistrative Law Judge Burton 

S. Kolko, served April 8, 1992, p. 2. See "Order Dismissing 

Complainant's Appeal". In The Matttr of Robert Harris ... FAA Docket No. 

CPQJEA0001, OMS No. FAA-2002-14236, August 15, 2005. 

(8). 

The Order Assessing Civil Penalty is a nullity because the Federal 

Aviation Administration failed to provide Keller a hearing after he 

requested one and initiated civil penalty more than two years after the 

incident occurred in violations of Section 13.208(d) of FAR and 49 

U.S.C. § 46301(d}(7)(A) and (e). 

According to 49 U.S.C. § 46301{d)(7)(A), the Administrator may 

impose a penalty on a person only after notice and an opportunity for 

a hearing on the record. On September 5, 2007, Keller made a written 

request for hearing and that request should have carried on until a 

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resolution of the matter. Secondly, the Order Assessing Civil Penalty 

Indicates that, on March 26, 2008, Keller was advised through a Final 

Notice of Proposed Civil Penalty that the FAA proposed to assess a civil 

penalty in' the amount of $2500. Contrary to the administrative law 

judge's July 24, 2007 Order, the five-year statute of limitations under 

28 U.S.C. § 2462 does not apply to civil penalties initiated by the 

Federal Aviation Administration. Even had KeUer received the notice, 

the notice was initiated more than two years after the December 18, 

2005 incident in· violations of Section 13.208(d) and 49 U.S.C. § 

46301(d)(7)(C), and the Agency has shown no good cause for the 

. delay. 

(C). 

The Order Assessing Civil Penalty is a nullity because it is based 

upon erroneous conclusions unsupported by a preponderance of 

reliable, probative, and substantial evidence in violation of 49 U.S.C. § 

46301 (d) (7) (B). 

The Order indicates that, after consideration of aU the availl:;,ble 

information, it has been determined that, Keller physically pushed 

other boarding passengers as he went down the aisle to his assigned 

seat and, based on this conduct, interfered with the duties of crew 

members when he had to be removed from the aircraft. However, 

there is not one scintilla of proof in the FAA investigative file to support 

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the . conclUSion that Keller physically plJshed other boarding 

passengers. In fact, during discovery exchange, after numerous 

attempts to obtain disclosure of favorable evidence, the Agency finally 

admitted, it had no statements of eyewitnesses or victims, and at no 

time proffered that such evidence existed; and further confirmed that 

neither TSA nor Air Tran Airways had obtained or taken such evidence. 

The only credible evidence contained in the FAA investigative file is the 

Cabin-Crew Safety Report completed by flight attendant Emmylou 

Carpenter. In that report, the flight attendant indicated that she 

observed Keller as he was boarding the aircraft poke a passenger in 

front of him asking If he was in first class. The flight attendant further 

stated that Keller was originally assigned seat l8A but reassigned to 

seat 26C after he made "rude remarks" to other passengers. Surely 

the flight attendant, if it were true that Keller assaulted other bOClrdlng 

passengers as he walked down the aisle to his assigned seat, would 

have included the assaults in the safety report. 

The administrative law judge Initially assigned to this case 

instructed the Agency that neither drunkenness nor engaging in verbal. 

altercations is an element of a violation of 49 U.S.C. § 46318, (DMS 

No.5). The Administrator of the Federal Aviation Administration has 

also determined that the term "assault" includes the "intentional" torts 

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of aSsi;lult and battery.6 And under Wisconsin law, assault Is defined as 

an apparently violent attempt or willful offer with force or violence to 

do hurt to another without the actual doing of the hurt threatened. 

Simply because Keller was removed from the aircraft without 

distraction and escorted to the Milwaukee County Jail is inconclusive to 

support the complaint. Keller was only detained over night anal no 

criminal charges were filed. 

PRAYER 

Keller urges the Administrator of the Federal Aviation 

Administration to grant his petition for review because the 

administrative law judge committed prejudicial error in violating 

Section 13.215 of FAR and the Agency's findings of fact and 

conclusions of law are unsupported by a preponderance of reliable, 

probative and substantial evidence, and each conclusion of law is 

made in violation of applicable law, precedent, and public policy. Keller 

further pleads i;l humble and sincere apology to all passen~Jers 

6 The fonner Administrator held that the term "assault" as used in 14 C.F.R. § 91.1 1, 

includes the intentionai torts of assauit and battery. In the Matter of Bengry, FAA Order 

No. 2003-9 at 5 (September 12,2003); In the Matter of Mayer, FAA Order No. 1997~12 

at 9 (February 20, 1997); fn the Matter of Ignatov, FAA Order No. 1996-6 at 8-9 

(February 6, 1996). Section 121.580 is substantively identical to Section 91.11, except 

. that Section 121.580 applies only to prohibited action.o;; ofpasscngers on board Part 121 

air carriers. (See 64 Fed. Reg. 1076 (January 7, 1999) (in which the FAA explained that 

the agency was adding a provision mirroring Section 91.11 to Part 121 of the Federal 

Aviation Regulation). 

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boarding Air Tran Airways Flight 635 on December 18, 2005 who may 

have been offended by his rude remarks. 

Signed this 10th day of March, 2010. 

~.s$~b~ Gerald W. Keller, petitioner/appellant 

224)0 Bascomb C\)rmcl RO\ld 

Woodstock, GA. 30189 

VER:[FICATION 

If Gerald W. Keller, the petitioner/appellant in the above·styled 

cause, hereby states under penalty of perjury that the foregoing 

statements are true and correct to the best of his knowledge. 

Signed this 10th day of March 2010. 

~,.~~. -.............
 Gerald W. Keller, petitioner 

CERTIFICATION OF SERVICE t .~ 

I, Gerald Keller, hereby certify that, on March ~2010, a true 

and correct copy of the foregoing Motion has been served via: U.S. 

mail to each party IisteQ in the Service list. 

. lY·~~lC. Signed this Day of March 2010. 


~~~~~-" 

Gerald W. Keller 

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-t OMS ijJ018/01a 03/24/2010 10:39 FAX 2024935142 FAA 

-;ERVED ON MARCH 10, 2010 

U.S. DEPARTMENT OF TRANSPORTATION 

OFFICE OF HFAH 11',''-'­

WASHINGTON, DC 

TO THE ADMINISTRATOR OF THE FEDERAL AVIATION 


ADMINISTRATION 


SERVICE LIST 

ORIGINALs.. ONE COPY 

Attention: Hearing Docket Clerk, AGC-430, Wilbur Wright Building-­

Suite 2W1000 

Administrator/Decisionmaker 

Federal Aviation Administration 

800 Independence Avenue, SW. Room 924A 

Washington, DC 20591 

ONE COpy 

The Honorable Isaac D. Benkin 

Administrative Law Juage 

Office of Hearingl M-20 

Room 5411 

u.S. Department of Transportation 

400 Seventh Street! S.W. 

Washington, DC 20590 

ONE COpy 

Glenn L. Btown, Attorney 

Federal Aviation Administration 

Regional Counsel AGL-7 

2300 East Devon Avenue 

Des Plaines, III 60018-4696 

18