U.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION.

# R El\/ED

FEDERAL AVIATION ADMINISTRATION, Complainant, 

## SEP 162015 

# HEARING DOCKET

VS. 

### CHERIF DIALLO, Respondent. DocketNo. FAA-2014-0544 FAA CaseNo. 2014S0290047 Judge Sullivan
MOTION TO FORJUDGMENT ON THE PLEADINGS AND REQUEST TO HOLD PROPOSED SCHEDULINGIDISCOVERY PLAN INABEYANCE 

### Pursuant to 14 C.P.R. §§ 

### 13.209, 218, the FAA moves to deem admitted the allegations in the Amended Complaint, and forjudgment on the pleadings. Respondent has failed to file an Answer and, accordingly, the allegations in the Amended Complaint shall be deemed admitted. The allegations in the Complaint are sufficient to demonstrate a regulatory violation and the appropriateness of the sanction. Therefore, judgment on the pleadings is appropriate. Additionally, without an Answer, the FAA is unable to meaningfully prepare a joint written proposed scheduling/discoveryplan for the scheduling conference on September 24, 2015. STATEMENT OF THE CASE On July 10,2014, the FAA issued aFinal Notice ofProposed Civil Penalty (now the Complaint), which proposed apenalty of$5,000. Respondent timely appealed, and the Complaint was filed on September 9, 2014. On February4, 2015, the FAA issued an Amended Complaint for proposed penalty of$4,400. Inthe Amended Complaint, the FAA alleged as follows:1. On or aboutFebruary 2, 2014, youwere apassengeraboardSpiritAirlines Flight

### # 316 traveling from Wayne County InternationalAirport, Detroit, Michigan (KDTW) to La GuardiaInternationalAirport, New York, New York (KLGA). 2. During taxiing of the aboveflight, a crewmembergave a safety demonstration andexit row briefing topassengers. 3. Your seat was located in an designated exit row. 4. During the above instructions, a crewmember instructedyou to talk quietly asyou were speaking loudly and interrupting thepresentation. 5. Y au refused to loweryour voice and the crewmember then informedyou thatyou wouldhave to be reseated. 6. You refusedagain to loweryour voice and refused to be reseated. 7. You then engaged in an altercation with a crewmember by raisingyour voice and arguingwith the crewmember. 8. As a result of your noncompliant behavior, a crewmember contacted thepilotand thepilots 'pre-takeoff duties were interrupted. 9. As a result of your above noncompliant behavior, the aircraftwas returned to the gate so thatyou could be removedfrom theplane. 10. Atthe gate, you became more argumentative with crewmembers andrefused to depart the aircraft. 11. Lawenforcement officers were calledandyou still refused to deplane the aircraft. 12. The law enforcement officers then hadtoforcibly removeyou from the aircrqft with handcuffs andsubsequently taseredyou to removeyou from thejetbridge. 13. Each ofyourabove actions identified inparagraphs 5-12 were threatening or intimidating, and interferedwith a crewmember in theperformance of the crewmember's duties. 14. As a result of theforegoing, you violated Section 121.580 of the Federal Aviation Regulations in that noperson may assault, threaten, intimidate, or interfere with a crewmember in theperformance of the crewmember 's duties aboard an aircraft beingoperated.Under 49 US.

### C. Sections 46301(a)-( d), youare subject to a civilpenaltynot to exceed$1,100 for each of the violations noted. By reason of theforegoingfacts andcircumstances, wepropose to assess a civilpenalty in the amountof $4,400. See 

### Amended Complaint at Exhibit I. To date, the Respondent has failed to file an Answer to the Complaint or Amended Complaint. ARGUMENT Respondent has failed to file an Answer in this case to the Complaint and the Amended Complaint. Therefore, each of the allegations in the Amended Complaint should be deemed admitted. The allegations in the Complaint include the facts ofRespondent's conduct that this conduct violated §121.580 ofthe Federal Aviation Regulations and that $4,400 is an appropriate civil penalty under the facts and circumstances of this case. Accordingly, judgment on the pleadings is appropriate. Section 13.209(a) of Title 14 of the Code of Federal Regulations provides that the Respondent must file an Answer within 30 days of the date of service of the Complaint. Pursuant to § 13.209(f), a Respondent's failure to file an Answer shall be deemed an admission ofthe allegations in the Complaint. In the instant matter, Respondent has not only failed to file an Answer within 30 days of the date of service of the Amended Complaint, but has not filed one at all. The Amended Complaint was served on February 4, 2015 via regular and certified mail. The Amended Complaint included a notice to Respondent (set out under its own bold, underlined, all capitals topic heading) that Respondent was required to Answer within 30 days after the date shown on the Certificate ofService. See 

### Amended Complaint at I. The regular mail was not returned to the FAA. A notice for the certified mail copy of the Amended Complaint was left for by Respondent on February 7, 2015. The USPS subsequently returned the certified copy as

### "unclaimed" on March 30, 2015. See 

### Exhibit 2. Respondent was required to file his Answer within thirty days ofthe date of service, see 

### 14 C.P.R. § 13.209(a)- in this case, on or before March 10,2015. Therefore, pursuant to 14 C.P.R. § 

### 13.209(f), the Judge should deem admitted the allegations in the Complaint. Because these allegations establish that Respondent violated Federal Aviation Regulations and that the sanction requested is appropriate, there are no matters leftto try at hearing, andjudgment onthe pleadings is appropriate. Additionally, Respondent's failure to file an Answerhas leftthe FAA without knowledge ofthe issues in dispute in the case, and unable to devise a proposed schedule for this litigation. The Agency has made multiple attempts to contact the Respondent and resolve this matter. On December 22, 2014, the FAA sent a letter to the Respondent requesting financial information to support his asserted inability to pay. See 

### Exhibit 3. The Respondent provided the documentation in March 2015 and the parties verbally reached a settlement agreement on or about March 26, 2015. The Agency then mailed the Respondent a copy ofthe promissorynote to memorialize the terms and execute the settlement. See Exhibit 4. However, the Respondent has failed to contact the FAA or sign the promissorynote to settle this matter. Since April2015, the FAA has made subsequent attempts to contact the Respondent with the most recent unsuccessful attempt on September 14, 2015 at lpm EST via his home telephone number: (347) 664-8774. As such, the FAA also requests that its requirement to submit a proposed scheduling/discovery plan be held in abeyancependingthe Judge's decision on this motion. CONCLUSION The allegations in the Amended Complaint are due to be deemed admitted as a result of Respondent's failure to file an Answer. The allegations in the Complaint establish that

### Respondent's violations and the appropriateness of the sanction requested. Accordingly, the FAA is entitled tojudgment onthe pleadings. WHEREFORE, the FAA respectfully requests that the Judge deem admitted the allegations in the Complaint, and grantthe FAAjudgment on the pleadings.
Respectfully submitted this 

## 15'/h day ofSeptembQer,,_



## 2~015.} ! 

# J_ J •



# \~/ EESHA D. MARSHA L I 

## {)foa {!-- 

### Attorney Office ofthe Regional CounselCERTIFICATE OF SERVICE I hereby certifythat a copy ofthe foregoing Motion for Judgment on the Pleadings has been sent via federal express this date bythe following methods: original and one copy: Federal AviationAdministration 800 Independence Avenue, S.W. Attention:HearingDocket Clerk, AGC-430 WilburWrightBuilding- Suite 2Wl000 Washington, D.C. 20591
onecopy: Honorable Judge J.E. Sullivan Office ofHearings, M-20 U.S. Department ofTransportation 1200 New JerseyAvenue, S.E. (Ell-310) Washington, DC 20590 CherifDiallo 263 W. 153rd St. Apt. 6D New York, NY 10039
KimberlyHobbs Administrative Officer and ProgramAnalyst Office oftheRegional Counsel



### ~SEP 

## 1 5 2015 DatedU.S. DEPARTMENT OF TRANSPORTATION OFFICE OF HEARINGS FEDERAL AVIATION ADMINISTRATION

FEDERAL AVIATION ADMINISTRATION, Complainant,
vs. CHERIF DIALLO Respondent. FAA Docket No. faa-2014-0544 Judge J.E. Sullivan

AMENDED COMPLAINT The Federal Aviation Administration (FAA), by counsel, hereby files its Amended Complaint issued September9, 2014, pursuant to Rule 214(b)(l) ofthe Rules ofPractice (14 C.F.R. §13.214(b)(l), and states as follows: I. On July 10,2014, Respondent, CherifDiallo was advised through a Final Notice ofProposed Civil Penalty that the FAA proposed to assess a civil penalty in the amount of$5,000. On September 8, 2014, the Agency Attorney received a written request for a hearing from the respondent. 

### II. 1. On or about February 2, 2014, you were a passenger aboard Spirit Airlines Flight # 316 traveling from Wayne County International Airport, Detroit, Michigan (KDTW) to La Guardia International Airport, New York, New York (KLGA). 2. During taxiing ofthe above flight, a crewmember gave a safety demonstration and exitrow briefing to passengers. 3. Your seat was located in an designated exit row. 4. During the above instructions, a crewmember instructed you to talk quietly as you were speaking loudly and interrupting the presentation.

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_ __.:'----5. You refused to lower your voice and the crewrnember then informed you that you would have to be resealed. 6. You refused again to lower your voice and refused to be resealed. 7. You then engaged in an altercation with a crewmember by raising your voice and arguing with the crewmember. 8. As a result ofyour noncompliant behavior, a crewmember contacted the pilot and the pilots' pre-takeoffduties were interrupted. 9. As a result ofyour above noncompliant behavior, the aircraft was returned to the gate so that you could be removed from the plane. I0. At the gate, you became more argumentative with crewrnembers and refused to depart the aircraft. II. Lawenforcement officers were called and you still refused to deplane the aircraft. 12. The law enforcement officers then had to forcibly remove you from the aircraft with handcuffs and subsequently tasered you to remove you from thejetbridge. 13. Each ofyour above actions identified in paragraphs 5-12 were threatening or intimidating, and interfered with a crewrnember in the performance ofthe crewrnember's duties. III. I. By reason ofthe foregoing facts and circumstances, you violated Section 121.580 of the Federal Aviation Regulations in that no person may assault, threaten, intimidate, or interfere with a crewmember in the performance of the crewmember's duties aboard an aircraft being operated. 2. Pursuant to 49 U.S.C. Sections 46301(a)-(d), Respondent is subject to a civil penalty not to exceed $1, I00 for each ofthe violations alleged. 3. Under the facts and circumstances ofthis case, a civil penalty of$4,400 is appropriate.WHEREFORE, the Agency, by counsel respectfully requests that the Administrative Law Judge enter an order that Respondent be assessed a civil penalty in the amount of$4,400. Respectfully submitted

# this~day ofFebruary, 2015.

# ~'>~~**~AD.MARSHALL** Attorney Office ofthe Regional Counsel PLEASE NOTE: Pursuantto Title 14 CFR Section 13.209(a), you are required to file a written answer to this Complaint, or a written Motion to Dismiss ifappropriate, not later than 30 days after the date shown on the Certificate ofService which follows.I herebycertifythat a copyofthe foregoing Amended Complainthas been mailed this date by CertifiedMail, Return ReceiptRequested, to the following: CERTIFICATE OFSERVICE
original and one copyvia certifiedmail: FederalAviation Administration 800 IndependenceAvenue, S.W. Attention: Hearing Docket

### Clerk, AGC-430 Wilbur Wright Building- Suite 2W1000 Washington, D.C. 20591
one copyvia certified mail and facsimile: HonorableJudgeJ.E. Sullivan Office ofHearings, M-20 

### V.S. DepartmentofTransportation 1200NewJerseyAvenue, S.E. (E11-310) Washington,

### DC 20590 FAX (202) 366-7536 via certified and regularmail: CherifDialJo 263 W. 153'd St. Apt. 6D NewYork, NY 10039 

# 4~~!:&~8~ ProgramAnalyst Dated

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.. 1/2Southern Region U.S. Department ofTransportation Office ofthe Regional Counsel Federal Aviation Administration December 22, 2014 VIA FEDERAL EXPRESS ONLY CherifDiallo 263 W. 153'd St. Apt. 6D New York, NY 10039 Re: 

### Case no. 2014S0290047 Dear Mr. Diallo: 

# OFILE

P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 (404) 305-5223 FAX

Per our conversation on Monday, December 22, 2014, regarding your above case. you have stated that you state that you are financially unable to pay the proposed civil penalty of$5000. I am considering making a settlement offer below the $5000 figure, but I cannot do this without knowing more about the circumstances ofyour asserted inability to paythe penalty. Therefore, ifyou will furnish me with additional financial information as proofofyour inability to pay, I will review it to see ifa settlement offer can be made. For your convenience in doing this, I have enclosed a "DOJ 50" form should you choose to use it. In addition, please provide copies of your tax returns for the last two years. Be sure to attach any other documents you would like me to consider. As we discussed, I have also included the releasable pmiions ofthe above case. Ifyou choose to submit the requested inforn1ation, please do so as soon as possible. Ifyou any questions, please call me at 404-305-5200. Thank you. Best Regards,

Attorney Office ofthe Regional Counsel EnclosuresU.S. Department ofT ransportation Federal Aviation Administration December22, 2014
CherifDiallo 263 W. 153'd St. Apt. 6D New York, NY I Re: Case no. Dear Mr. Dial!o: Per our conversation stated that you.state am considering **m=,,u~** knowing more about Therefore, ifyou will to pay. I will review it · this, I have enclosed a · copies of your tax retu1 would like me to consid, As we discussed, I have Ifyou choose to submit any questions, please cal Best Regards,
Attorney Office ofthe Regional Co! Enclosures

->·. Southern Region Office ofthe Regional Counsel 

# uFILE

P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-S200 (404) 305-5223 FAX ::J-:Ull AND RETALN THIS COPY BEFORE AFFLXING TO THE PACKAGE. NO POUCH NEED EO.



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## -MAR 

## 2 6 2015 VIA FEDERAL EXPRESS CherifDiallo 263 W. l53'ct St. Apt. 6D New York, NY 10039 DearMr. Diallo: Southern Region Office ofthe Regional Counsel P.O. Box 20636 Atlanta, Georgia 30320 (404) 305-5200 (404) 305-5223 FAX 2014S0290047

Pursuant to our discussion, enclosed is a Promissory Note in a principal amount of$200.00 payable over eight (8) months. To effect settlementofthis case, you must signthe PromissoryNote before a Notary Public and return the original signed note to this office so that it is received by us on or before Wednesday, AprilS,2015. Please note that interest charges and administrative costs are not assessed unless you fail to complywiththe terms ofour agreement. I look forward to receiving the signed Promissory Note confirming our settlement. Ifyou have any questions, please call me. Once I receive the signed Promissory Note I will issue an Amended OrderAssessing Civil Penalty requiring payments in accordance withthe note. Thank you for your cooperation in this matter. Sincerely,

ey Office ofthe Regional Counsel Taneesha.marshall@faa.gov Enclosure



### Government \'l 

### Exhibit 

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U.S. Department ofTransportation Federal Aviation Administration 

## MAR 

## 2 6 2015 VIAFEDERAL EXPRES, CherifDiallo 

### 263 W. 

### 153'ct St. Apt. 6D NewYork,NY 

### 10039 DearMr. Diallo: Pursuant to our discussion, • over eight (8) months. To e Notary Public and return 

### th before Wednesday,AprilS. assessed unless you fail to cc I look forward to receiving 

### t questions, please call me. OrderAssessing Civil Penalt Thank you for your cooperat1 Sincerely,

Atto ey Office ofthe Regional Coun:

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