FAA

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



# u.s. DEPARTMENT·OFTRANSPORTATION OffICEOF HEARINGS

WASHINGTON, D.C. 

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INTHE MAnER OF GERALD KELLER Petitioner/Appellant

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### FAA DOCKET NO. CP06GL0007

t •.""\ OMS NO. FAA-2006-2S869

I**'~I.** \ 

### REFERENCE NO. 

### AGl-7E 2008-GL-13-0038 ADMINISTRATOR/DECIONMAKER 

### ORTHE FEDERALAVIATION ADMINISTRATION

PETITION FOR REVIEW AND DISMISSAL 

### OF ORDER

### ASSESSING CIVIL PENAL TV

### WITH PREJUDICE 

### AND/ORAPPEllANT'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 ofthe 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because the FAA was estopped from instituting a second enforcement action based on the same facts initiated in its withdrawn complaint in Violation of Section 13.215 of Federal Aviation Regulations. Insupport, Kellershowsthefollowing:

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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 amountof

### $2500 foralleged incidentoccurring on December 

### 18, :2005 while he was boarding Air Iran Airways Flight 

### 635 scheduled to operate from Milwaukee, Wisconsin toAtlanta, 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 of49 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 listedstgnificant reasons to dismiss including thefailure to allege facts to support a violation of49U.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 documentsand 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 memberofthe crew; hence, therewas no need tocharge [Keller] with
an assaulton acrewmember." (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 orarguably 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'sJanuary 18, 2007 motionfor 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 notappear separately inthe OMS docketfile. 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 offthe aircraft. Ms. Carpenterfurther indicated that Keller was Initially assigned seat l8A and changed to seat26C because "he made rude remarks to those around him." However, there is not the slightest indication that Kellerphysically pushed otherboarding passengers as he wentdown theaisleto hisseat.
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and eyewitnesses including witness statements, and documents filed by the Agency in other matters specifically pertaining to this matter; details ofthe 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 ofall 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 todiscovery requests by objections and attomey privileges, and directed Keller, "ifhe wishes," tofile another motion to· compel and disclosethe contents ofthe 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 ofOMS No.FAA-l006-2S689-30.
!) AlthoughtheAgency's response motion was datedaftertheOrderwas entered, and was notproperlyfiled; the response can befound as "Exhibit3"ofKeller's motionforsanctions
- (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 ofvictims and eyewitnesses and any statement of witnesses who observed the incident. Seemingly such evidence is necessary to support a violation of46 U.S.C. 

### § 46318. (OMS No. 27). On AprilS, 2007, theALJ conSidered the motion premature and denied sanctions but held the motion suffiCient to enter an Order compelling theAgency to provide names and occupations ofalleged victims ofthe incident and eyewitnesses that gave rise to the case or provide

.detailed steps takento 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 difficultto believe that ifthe FAA had asked the airline or itsemployeesforthe nameand address of any passenger witnesses; those regulated parties would have refused to disclose 

### itto 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 datedApril 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 ofvictims 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 ofthe 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 oftimetodisclose 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 ofpassengers,. and neitherTSA, the Milwaukee County Sheriff's Department, nor AirTran 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 ofthe 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 referto victims and witnesses and witness statementsforviolations 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 investigativefile. 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 aftertaxing out, and clearly a misrepresentation offact. (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"thatAirTran Airways

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### 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 thatthe Agency failed to comply with orders, and stated, the Agency "cannot be faulted for failing to disclose the conten1ts of statementsthat do not exist." (OMS No. 33). If

### the statements dc) not existthen Kellerdid not physically push otherboarding 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 thatthe Agency, by its own admission, neitherobtained 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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# •

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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 summaryjudgment 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 ofthe aircraft, to deviate from his dutiesto 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 setforth in the original complaint. I do notthink it Is fairto 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. Ifthe 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

9&

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of Proposed Civil Penalty charging a violation of § 46318, § 121.580,
orboth."(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, theAgencyfiled motion towithdraw 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 thattheAgency was well within the fiveyear statute of limitations under 28 U.S.C. § 2462 and the two-year limitations in14 C.F.R. § 13.208(d) tofile 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 notfile a response tothe motion and, although theAU was obJigated to enter a ruling on the motion ortransferthe motion tothe 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 pendingfinal review. 7. More than fouryears after the alleged incident, the Agency Issued OrderAssessing Civil Penalty In pretextthat, afterconsideration

10

## p

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ofall the available information, Ketler physically pushed otherboarding passengers as he went down the.aisle to his seat and constituted an assault on passengers and thatthis condoct interfered with

### the duties ofcabin crewmembers In violations of

### 49 U.S.C. § 

### 46318 and Section 

### 121.580 of 

### FAR. The Order further claims thatKeller was advised on March 26, 

### 2008 through 

### a Final Notice of Proposed Civil Penalty that the

### FAA proposedtoassess acivil penalty intheamountof

### $2500. 

### 8. In motion dated March 

### 5, 2010,theAgency moves to dismiss Keller's Notice of Appeal and/or Request for Extension of Time t9 Appeal the administrative lawjudge'sJuly 24, 2007 Order, and claIms Keller has twice failed to timely appeal. Keller's motion to vacate and setaside the Orderwas timelyfiled and pursuantto Section 

### 13.205 of 

### FAR, the lawjudge was obligated to entera ruling on the motion Cit at the least transferred the motion to the proper authority for a determination. ARGUMENTANDCITAnONSOF AUTHORITY There is an abuse of discretion when an agency's decision is based on an erroneous conclusion of law orwhen the record contains
no eVidence on which itcould have rationally based thatdecision. 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

11

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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 Complaintwithout prejudice. The Rules ofPractice is setforth In 14 C.F.R. Part 13, Subpart

### G, ofthe Federal Aviation Regulations, and Section 13.215 provides: 

### At anytime before orduring a hearing, an agency attorney maywithdraw
a complaint or party may withdraw a requestfora heating withoutthe 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 lawjudge shalldismiss the proceedings underthis subpart with prejudice. Inthe 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 withoutprejudice. See: In the Matter of Excell Cleaning 

### & Building Services, INC., FAA Docket No. CP06SCE0003, OMS NO. FAA2006-247 

### 16, "OrderofDismissal"served July 11, 2006; Inthe 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; InThe Matterof 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 ofAdmjnistrative Law Judge Burton S. Kolko, served April 8, 

### 1992, p. 2. See "Order Dismissing Complainant'sAppeal".

### InThe MatttrofRobert Harris

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

### 2005. (8). The OrderAssessing Civil Penalty is a nullity becausethe Federal Aviation Administration failed to provide Keller a hearing after he requested one and initiated civil penalty morethantwoyears afterthe incident occurred in violations of Section 13.208(d) of FAR and 49 U.S.C. § 46301(d}(7)(A) and (e). According to49 U.S.C. § 46301{d)(7)(A), the Administrator may impose a penalty

### ona 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 ofthe matter. Secondly, the Order Assessing Civil Penalty Indicates that, on March 

### 26, 2008, Keller was advised through 

### a Final Notice ofProposed Civil Penaltythatthe 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 OrderAssessing Civil Penalty is a nullity because it is based upon erroneous conclusions unsupported by a preponderance of reliable, probative, and substantial evidence in violation of49 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 notone scintilla ofproofin the FAA investigativefiletosupport

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the

.conclUSion that Keller physically plJshed other boarding passengers. In fact, during discovery exchange, after numerous attempts to obtain disclosure offavorable 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 neitherTSA norAirTran Airways had obtained ortaken such evidence. The onlycredible evidence contained in the FAA investigativefile isthe 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 Ifhe was in first class. The flight attendantfurther stated that Keller was originally assigned seat 

### l8A but reassigned to seat 26C after he made "rude remarks" to other passengers. Surely theflightattendant, 

### ifitwere truethat Keller assaulted otherbOClrdlng passengers as he walked down the aisle to his assigned seat, would have included the assaults in thesafety report. The administrative law judge Initially assigned to this case instructed the Agency that neitherdrunkenness nor engaging in verbal. altercations is an element of a violation of49 

### U.S.C. § 

### 46318, (DMS No.5). The Administrator of the Federal Aviation Administration has also determined thatthe term "assault" includes the "intentional"torts

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ofaSsi;lult and battery.6And underWisconsin law, assault Is defined as an apparently violent attempt or willful offer with force orviolence to do hurtto anotherwithoutthe actual doing ofthe hurtthreatened. Simply because Keller was removed from the aircraft without distraction and escorted tothe Milwaukee County Jail is inconclusiveto 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 ofapplicable law, precedent, and public policy. Keller further pleads i;l humble and sincere apology to all**passen~Jers**

6 The fonner Administratorheldthat theterm "assault" asused in 14 C.F.R. § 91.11, includestheintentionaitorts ofassauitand battery. IntheMatterofBengry, FAAOrder No. 2003-9at5 (September 12,2003); IntheMatterofMayer, FAAOrderNo.**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 onlyto prohibited action.o;; ofpasscngerson board Part 121

aircarriers. (See 64 Fed. Reg. 1076 (January7, 1999) (in whichtheFAA explainedthat the agency was adding a provision mirroring Section 91.11 to Part 121 ofthe Federal AviationRegulation).
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boarding AirTran Airways Flight 635 on December 18, 2005 who may have been offended by his rude remarks. Signed this 10th dayof 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 aretrue and correcttothe bestofhis knowledge. Signed this 10th day of March 2010.

# ~,.~~. -

............. Gerald W. Keller, petitioner


### CERTIFICATION OFSERVICE 

# 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 toeach party IisteQ in the Service list.



### .**lY·~~lC.** Signed this Day 

### ofMarch 2010.

# ~~~~~ -" Gerald W. Keller

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-;ERVED ON MARCH 10,2010 U.S. DEPARTMENT OFTRANSPORTATION OFFICE OF HFAH11',''-'­ WASHINGTON, DC
TO THEADMINISTRATOROF THE FEDERALAVIATION ADMINISTRATION SERVICE LIST
ORIGINALs..ONE COPY Attention: Hearing DocketClerk, AGC-430, WilburWright Building-­ Suite 2W1000 Administrator/Decisionmaker Federal Aviation Administration 800 IndependenceAvenue, SW. Room 924A Washington, DC 20591 ONECOpy The Honorable Isaac D. Benkin Administrative LawJuage OfficeofHearing l M-20 Room 5411 

# u.S. DepartmentofTransportation 400 Seventh Street! S.W. Washington, DC 20590 ONECOpy Glenn L. Btown, Attorney Federal AviationAdministration Regional Counsel AGL-7 2300 East Devon Avenue Des Plaines, III 60018-4696

18