^:^ERARTMENTOF 

BRIAN A WALLAESA : RAMSPORTAT'OiV 

^^OCKbi•GPERAri0^jS 

) IdU r^OV 2 5 A q: 3 1 

In llic matter o\': ) 

) 

FEDERAL AVIATION ) FDMS No. FAA-2010-Q628 

ADMINISTRATION ) Docket No. CPl'oWPOOIO ' 

) Hon. Ronnie A. Yoder 

Complainant, ) 

) 

V. )-

) 

BRIAN WALLAESA ) 

Respondent ) NOV 22 ^Tfl 

) 

Answer to Complainant Meniorandiini 

Brian WalJaesa (Respondent) hcrby files an answer to tlie Federal Aviation 

Administration Complaint (Complainant) pursuant lo the October 20, 2011 Order of the 

Chief Adminislralive Law Judge. The answer to the Complainant's Memorandum was 

determined by the Administrative Law Judge in the Prehearing Conference. 

Rackuround to Filinas 

Respondent was sent a Notice of Proposed Civil Penalty on February 25, 2010 

(sec Attachment A) which charged that the Respondent violated Section 121.580 of Title 

14, Code of Federal Regulations. Jh the initial Notice the Complainant stated that the 

Respondent was being cited under 49 U.S.C. 46301(a)(5)(A) where the maximum pcnahy 

was $ 11,000 and the proposed assessment was S5,500. Respondent then requested an in 

person conference with the Complainant at the Complainant's offices on April 5, 2010 

(see Attachment B). Respondent was advised through a Notice of Proposed Civil Penalty 

as amended April 7, 2010 that the Complainant proposed to assess a civil penally in the 
amount orS5,500and that tlie initial charge of violation of Section 121.580 of Title 14, 

Code of Federal Regulations was now accompanied by violations of Section 121.317(f) 

and 12l.317(k) (see Attachment C), which was stated as having the possible penally of 

$11,000 fov each viohaion. a grand total possible of 533,000. Respondent had requested 

an informal hearing and throughout several negotiations including informal meetings and 

phone coriyersations with Complainant, a resolution was not able to be reached. Il is the 

belief.of the Respondent that the Complainant offered the final penally to be $5,000. A 

Una! Notice of Proposed Civil Penalty was submitted, and by a letter dated July 13, 2010, 

Respondent requested a hearing. 

In both instances of Notices the Respondent was given a copy of Department of 

Transportation Federal Aviation Administration Rules of Practice for FAA Civil Penalty 

Proceedings 14 C.F.R (see allachinent D). 

Background of Incident 

1. On or about November 6, 2009, the Respondent was a passenger on board 

Southwest Airlines flight 3049, operating from Baltimore, MD lo Las Vegas, NV. 

2. Prior to the flight the Respondent began a conversation with a female 

passenger. 

3. After boarding the plane, the Respondent noticed the female passenger sit 

in ihe same row he had already occupied and asked a fellow passenger, later identified as 

Barry Grabon, to switch seals so that he could continue the conversation that had begun 

prior to boarding the plane. 

4. After approximately 30 minutes into the llight, the llighl attendants served 

a complimentary "Irish Coffee" to the Respondent, which Ihc Respondent drank. 
5. The Respondent continued the conversation for at least two hours into the 

5 hour flight. 

6. The Female Passenger had left her seal and left the conversation 

unfinished with the Respondent. 

7. The Respondent sought assistance from ihe flight crew aboard ihc plane, 

jComplainant's witnesses Ms. Wendy Moorman, Ms. Penny Green, and Mr. Robert 

Dimiond, in order to resume the conversation with the Female Pa.sscnger later determined 

to be Ms. Jaime Tomchik. 

8. For a period of time undetermined by the Respondent, the Respondent 

sought assistance from the tlight crew to resume the unfinished conversation with the 

Female Passenger, hi which the Respondent respectfully treated the flight crew's 

assistance with the situation in asking politely with use of 'Please' and 'Thank You' and 

respecting the requests of the tlight crew. 

9. Nearly five hours into the Hight, the Respondent approached the flight 

crew, who were all gathered at the front of the aircraft, for one last attempt to speak with 

the Female Passenger. 

10. The flioht crew called a gentleman to assist with the situation, whom was 

later identilied as off-duiy FBI agent James Molliea to the Respondent. 

Discussion on Code of Regulations 

In the Rules of Practice for FAA Civil Penally Proceedings 14 C.F.R. §13.16 and 

Subpart G the code states "Civil Penalties: Administrative assessment against a person 

other than an individual acting as a pilot, flight engineer, mechanic, or repairman." The 
Notice of Proposed Civil Penalty States that the Complainant is subject to 49 U.S.C. 

46301(a)(5)(A). 

After Review of Each Section of the 49 U.S.C. 4630i(a)(5)(A), the Respondent 

sates the following section to be worded as the following: 

"An individual (except an airman serving as an airman) or small business concern 

is liable to the Government for a civil penalty of not more than $10,000 for violating -

(i) Chapter 40! (except sections 40103(a) and (d)), 40105.40106(b), 40106, 

and 40117), section 44502 (b) or (c), chapter 447 (except sections 44717-

44723), or chapter 449 (except sections 44902, 44903(d), 44904. and 

44907-44909) of this title." 

After the Respondent had reviewed each section of code, the Respondent makes 

the following assessment: 

1) Chapter 401 applies to Economic Regulation and Duties of the Secretary of 

Transportation. 

2) Chapter 44502 (b) and (c) Applies lo Conformity of Airports and Airspace to 

Government Standards. 

3) Chapter 447 Applies to requirements of Pilots and Aircraft to Conform to Safety 

Standards. 

4) Chapter 449 List the requirements of Airlines and Airports to provide the proper 

security standards to passengers on aircraft. 

It is the Respondent's Understanding after review of the code that taken in their 

entirely, the Chapters and Sections of Code Listed within 49 U.S.C. 46301(a)(5)(A) apply 

to Aiiporis, Airlines, the employees of said entities, the contractors of said entities, and 
the employees and contractors of the FAA and Departmenl of Transportation that oversee 

said entities (if the Administrative Law Judge wishes, the Respondent can give further 

discussion on the individual chapters). In other words the code specifies the legal 

responsibility of those providing the service, and not those using the service (passengers). 

Furthermore, it is the Respondents standing that 46301(a)(5)(A) does not apply to 

passengers, and therefore does not apply to his actions on the 6' of November, 2009. In 

support of this premise, the Respondent states this lack of codification of passenger rights 

and responsibilities are partly addressed by U.S.C. 49 §41706 and §46303 which specify 

prohibitions against smoking on scheduled flights and carrying a weapon on board 

respectively; which arc passenger responsibilities. Also of note is while §46303 states 

that "the individual... is liable to the United Stales Government for a civil penalty of not 

more than $10,000 for each violation"', §41706 does not specify a penalty while U.S.C. 

49 §4630l(b) "Smoke alarm device penalty" defines one in subsection (2) as the 

following: "An individual violating this subsection is liable lo the Government for a civil 

penalty of not more than $2,000." 

In summation, il is the Respondent's position that the assessment under 49 U;S.C. 

46301(a)(5)(A) by the Complainant is invalid, and no actual codified guidelines in 49 

U.S.C. exist for the violations as cited. 

Discussion on Complainant's Position on Sanction 

In the Memorandum On Sanction dated November 15", 201 1, the Complainant 

states the following: 

"The applicable sanction guidance is found in FAA Order 2150.3B which became 
effective on October 1, 2007. The sanction guidance provided that Complainant could 

impose a civil penalty in the nia.ximum range for interference with a crewmember in 

violation of 14C.F.R. § 121.580. FAA Order2150.3B, Appendix B, Fig. B-3-p(l), 

page B-28. The maximum range applicable to an individual not serving in the 

capacity of an airman is $4,000 - $11,000. kkat page B-8. Thus, the Complainant, 

upon issuing the original Notice, proposed a $5,500 sanction. This amount falls 

within the low end of the maximum range sanction applicable to a section 121.580 

violation under FAA Order 21530.B." 

The Respondent was previously unaware of FAA Order 2150.3B, and was not 

informed by the FAA previously or sent information on the Order as the Respondent was 

for Rules of Practice for FAA Civil Penalty Proceedings 14 C.F.R. §13.16 and Subpart G. 

The Complainant had never mentioned FAA Order 2150.3B, and had not, until the 

Memorandum On Sanction, given any prior background lo the reasons for the assessment 

of the $5,500 sanction. It is the Respondenfs position based on the testimony and actions 

of the Complainant that the $5,500 sanction had been solely based on guidelines set forth 

in FAA Order 2150.3B, which was discussed in the third paragraph spanning pages I and 

2 of the Memorandum On Sanction. 

Discussion of FAA Order 2I5Q,3B 

As stated previously, the Respondent was unaware of FAA Order 2I50.3B until 

receiving the Complainant's Memorandum On Sanction. Order 2150.3B clearly states in 

Chapter 1, sections 2 (b) and (c) that the order is a "Staff Manual..." and thai the order 

"docs not give any right or benefit, substantive or procedural, enforceable at any law by 

any parly against the FAA, its officers, or its employees..." On this basis, it is the 
Respondent's position that FAA Order 2150.3B is intended to be a guideline for 

employees of ihe FAA on how to act, especially through the use of the term "Staff 

Manual.*' It is the.position of the Respondent that in defining the document as a "Staff 

Manual", it has no legal basis in U.S. Code. It is the Respondent's belief thai FAA Order 

2150.3B is essentially a set of guidelines outside of the U.S. Code. In two cases that 

received national attention. State v. Hogan 336 N.J.Super. 319, 764 A.2d 1012 (NJ Super 

2001) and State v. Kenna 167 N.J. 635, 772 A.2d 937 (NJ Super 2001), the existence of a 

code of operation outside of codified law was highlighted as how greatly negative such 

actions could become, and lead lo an investigation of the New Jersey Slate Police by the 

New Jersey Senate Judiciary Committee, Government oversight, and an implementation 

of permanent codified changes to law. To be placed bluntly and harshly: FAA Order 

2150.3B is a legal equivalent of "How to interi^ret U.S. Code as it applies to the FAA for 

Dummies." 

Il is the position of the Respondent that FAA Order 2150.3B has no basis in U.S. 

code, and therefore, any presumptions, arguments or positions based on FAA Order 

2150.3B are invalid, and therefore, any argument made by the Complainant after the third 

paragraj)h of the Memorandum On Sanction is based on an invalid statement, and thereby 

itself invalid (just as house build on no foundation cannot stand, the Complainant's 

argument has no basis). 

Discussion on Respondents' Actions 

The Complainant allempts to paint a picture of the Respondent in a highly 

negative light, in fact, the Complainant uses the words 'several' anti "egregious' multiple 

times. This is hardly the case. 
In the Complainant's own document "Adminislralive Witness List and Siniimary 

of Testimony" submitted to the Administrative Law Judge on N(n'eniber 15, 2010, the 

Complainant has listed five (5) wiincsscs for Icstiniony. Ms. Penny Green, Mr. Robert 

Dumond, and Ms. Wendy Moorman were tlight attendants on Southwest Airlines' flight 

3049 and are (3) of the witnesses, and had the majority of contact with the Respondent. 

The other two witnesses are James J. Molliea, an off-duty FBI agent, and Jaime Tomchik, 

the Female Passenger in question. James J. Molliea testified Before the Special Federal 

Grand Jury, in Las Vegas, NV on Tuesday, December 1, 2009 (sec Attachment E). James 

J. Molliea, the Complainant's own witness testified before Ihe Federal Grand Jury on 

page 000057, lines 14-16, that the Respondent was described by the Hight attendants 

"...as being not combative, but 'reluctantly compliant'..." and that upon interaction with 

the FBI agent "He didn't offer any resistance...". It is the expectation of the Respondent 

that if the Complainant calls the three (3) flight attendants and the Special FBI agent 

James J. Molliea they will describe the Respondent as polite, courteous, and not 

combative. This hardly constitutes egregious behavior as put forth by the Complainant. 

The Respondent wished to speak with the female passenger, and requested assistance 

from the flight attendants in doing so. 

The Respondent had named several cases within the Memorandum On Sanction, 

many were listed in attempt to show that there exists a precedent for the sanction, hi one 

argimient the Complainant attempts circular logic by mentioning FAA v. Salcido. 

describing the case, then merely slating the eases are similar by the charges of 121.580, 

121.317(f), 121.317(k), (considering that the FAA assigned two of the charges to the 

Respondent after the fact). Also within the Complainant's argument, the Complainant 
does not mention specific material facts or testimony of the alleged incident in relation to 

any of the mentioned cases other than the information in the sections of code. ]n the 

Complainant's argument, the Complainant also neglected to mention United Stales v. 

Grzeganek (1993, SD Fla) 84! F Supp where a Gctnmn speaking passenger boarded a 

flight from Florida lo Germany drunk, and expressed his intent lo use the lavatory by the 

phrase "the roof is going to go." In Gizcganek. the plane had already taken fiighi, and as 

a result of the Highl crew assuming a bojTib was on board, the plane was turned around 

and flown back to the departure airport. The pas.senger became belligerent when 

attendants aitempted to prevent him from using the lavatory and refuse to be sealed. The 

passenger was arrested, and finally sentenced to time served and a $200 fine. 

The Respondent was indicted on criminal charges December 1. 2009 regarding 

the incident including violation of 18 U.S.C. § 111(a) - Assaulting, Resisting, or 

Impeding a Federal Officer; and 49 U.S.C. § 46504 - hitcrference with Flight CrewMembers and Attendants in United Stales v. Brian Allen Wallaesa. Case No. 02:09-CR0492. Through trial byjury concluding on December 16, 2010, the Respondent was 

acquitted of both charges. Li the trial you will find that the Respondent was.found not to 

pose any threat or intimidation to any of the flight crew or passengers on board flight 

3049, and that he did not grab, push, point, touch, or even raise his voice to the members 

of the tlight crew. You will also find that the Respondent reacted to two gentlemen 

rushing toward the front of the plane, which caused the Respondent to step back into 

Federal A^ent James J. Molliea. 
In summary, it is the expectation of the Respondent that the testimony of the 

Complainant's witnesses will show thai the Respondent never induced thoughts of fear or 

harm, while possibly being insistent and reluctant, was polite and complaint. 

Concerns of Respondent's Interaction with FAA 

The Respondent has had concerns within his interaction with the Complainant in 

•Orderjo.resolve the issues at hand. Ir is the Respondent's position that (he Complainant 

intentionally or uninientionaliy opened itself to actions that border on larceny and 

extortion. Use of the clause "ability to pay" under Rules of Practice for FAA Civil 

Penalty Proceedings 14 C.F.R. §13.16 (b)(2), leatls to the following paraphiase of 

activity: "You submit your financial information, and we will determine the sanction." 

Noie that is not an actual fact, but a paraphrase of phone conversations. Also the fact that 

the charges of §§ 121.317(f) and 121.317(k) were added after the Respondent indicated 

that the Respondent was requesting an informal meeting. This exposed the possibility of 

$33,000 in fines as opposed to the initial $11,000 maximum in fines according to 

Attachment C. Finally, the filing of the Complainant's Motion for Protective Order 

further concerned the Respondent as to the intent of the actions of the Complainant. 

Summary of Respondent 

It is the Respondent's position that through the Citation of 49 U.S.C. 

46301(a)(5)(A) there is no basis for a fine schedule for violations of §§§ 121.580, 

121.317(0, I2l.3l7(k), as such violations are not mentioned within the section of code, 

and that there exists no information within the sections of code listed as toguide a fine 

schedule. It is also the Respondent's position thai the use of FAA Order 2150.3B, makes 

any and all discussion of sanction invalid. It is apparent that the.FAA Order is a "Staff 
Manual." and not codified law. This inakes ihe Order invalid for discussion as it is not 

based in US Code, and any premise based on the order invalid for discussion. Finally, it 

is the position of the Respondent that the Complainant, within the Complainant's own 

argument, never provided a link to the facts of the Respondent's actions to any precedent, 

or for that matter, the actual citations under §§§121.580, 121.317(f), 121.317(k). The 

Complainant simply presented an excellent case history of cases surrounding §§§ 

121.580, 121.317(0, I2l.317(k). 

WHEREFORE, the Respondent, respectfully requests that the Administrative 

Law Judge enter an order that the Civil Proceedings against the Respondent be dismissed, 

and no civil penalty assessed, as there is no basis for the Complainant's argument. Even 

if the Administrative Law Judge finds the Respondent guilty of any or all of §§§ 121.580, 

121.317(0- 121.317(k) he must assess a Civil Penalty of $0, as there arc no Codified 

provisions for a legal penalty under 49 U.S.C. 46301 (a)(5)(A), the argument put forth by 

the Complainant does not relate material facts of the Respondent's actions to any 

precedent that the Complainant describes, and finally the FAA Order 2150.3B is a "Staff 

Manual" and not actual eodified law and thereby has no legal weight. 

Dated November 22, 2011 

Respectfully Submitted, 

Wallaesa 

Respondent 

11272 Wortham Crest Circle 

Manassas, V A 20109 

(570)778-1335 
--jtCTT^cMnBA}! A 

^^^22 TO 

U.S. Departinent Western-Pacific Region P.O. Box 92007 

of Tnmsjwi-lation Office of the Regional Counsel Los Angeles, CA 90009-2007 

Federal Aviation Telephone: (310) 725-7112 

Adminrstrah'on Facsimile: (310) 725-6816 

February 25, 2010 Case No. 201OWP190018 

CERTIFIED MAIL - RETURN RECEIPT r^QUESTED"aird'RBGUL'AR-MA-If.: 

Mr. Brian Wallaesa 

11272 Wortham Crest Circle 

Manassas, VA 20109-5697 

NOTICK OF PROPOSED CIVIL PENALTY 

Based on a report of investigation, it appears that: 

1. On or about November 6, 2009, you were a passenger on board Southwest 

Airlines' fliglit 3049, operating from Baltimore, Maryland, to Las Vegas, Nevada. 

2. On the above occasion, Southwest Airlines' fiight 3049 was operating under part 

121 of the Federal Aviation Regulations. 

3. During the passenger briefing prior to the flight, passengers were advised of the 

regulations requiring you to comply with crewmember instructions during the 

flight. 

4. During the flight, when the seatbelt sign was ilkmiinated, you were asked several 

times by erewmembers to take your seat, but you refused. 

5. Your conduct referenced in the above paragraphs interfered with the performance 

of the erewmembers' duties. 

For these reasons, it appears that you violated the following Federal Aviation Regulation (Title 

14, Code of Federal Regulations): 

Section 121.580 in that you threatened, intimidated, or interfered with a crewmember in 

(he perfomiance of the crewme/jiber's duties aboard an aircraft being operated. 

Under 49 U.S.C. 46301(a)(5)(A), you are subject to a civil penalty for the violation noted. The 

maximum penalty for each violation is $ 11,000.00. We propose to assess a civil penalty for the 

violation noted in the total amount of $5,500.00. 
•A ')ZAC^.^L-AJ r S 

U.S. Department Western-Pacific Region P.O. Box 92007 

of Transportation Oftice of the Regional Counsel Los Angeles, CA 90009-2007 

FederalAviaUon Telephone: (310)725-7100 

Administration 

^p^ . 7 2010 Case No 201OWP190018 

BRIAN WALLAESA 

11272 WORTH/VM CRBST CIRCLE —^ ' 

iVL^VNASSAS, VA 20109-5698 

Re: Request for an informal conference 

Dear Mr. Wallaesa; 

This letter will eontlrm my conversation with you on Monday, April 5, 2010, wherein you 

advised you wished to have an iii-person inlbrmaj conference at the Federal Aviation 

Administration's headquarters in Washington, D.C. I advised you that m the event the case was 

not resolved as a result of the inibmial conference, you would still be able to request a hearing by 

following the instructions for doing so when or if we issued a Final Notice of Proposed Civil 

Penalty. 

I advised you I would be sending your file to Wasliington, D.C. for furtlier handling, and you 

would be hearing from our Headquarters to schedule a time tor your informal conierenee. As I 

was reviewing your case for sendmg on, I noticed that tvvo violations were inadvertently omined 

from tlie Notice of Proposed Civil Penalty. Thus, you will note tlie additions of 14 CFR sections 

121.317(0 and 12L3I7(k) in the enclosed Amended Notice of Proposed Civil Penalty. The 

factual allegations, paragraphs 1 through 5, have not changed, nor has the total amount of the 

civil penaJty proposed against you. 

Please call me direct at (310) 725-7101, or you may e-mail me at jNao]i]i.T5udaf^F/\A.2ov if you 

I',ave any liirther questions. 

Sincerely, 

NAONQ TSUI)A 

Regional Counsel 

Enclosure: Amended Notice of Proposed Civil Penalty 

ec: AWP-230, LAS FSDO 
krp^H^Ejr c 

U.S. Department Western-Pacific Region P.O. Box 92007 

of Transportation Office of the Regional Counsel Los Angeles, CA 90009-2007 

Federal Aviation Telephone; (310) 725-7112 

Administrarion Facsimile: (310)725-6816 

^pi^ - 7 2010 Case No. 2010WP190018 

CERTIFIED MAIL - RETURN RECEIPT REOUESTED and REGULAR MAIL 

Mr. Brian Wallaesa 

11272 Wortham Crest Circle 

Manassas, VA 20109-5697 

AMEtVDED NOTICE OF PROPOSED CIVIL PENALTY 

The Notice of Proposed Civil Penalty dated February 25, 2010, is hereby amended (o read in full 

as follows: Based on a report of investigation, it appears that: 

1. On or about November 6, 2009, you were a passenger on board Southwest 

Airlines' flight 3049, o'^cmimg from Baltimore, Maryland, io Las Vegas, Nevada. 

2. On the above occasion. Southwest Airlines' flight 3049 was operating under part 

121 of the Federal Aviation Regulations. 

3. During the passenger brietlng prior to the flight, passengers were advised of the 

regulations requiring you to comply with crewmember instructions during the 

flight. 

4. During the flight, when the seatbelt sign was illuminated, you were asked several 

times by erewmembers to take your seat, but you refused. 

5. Your conduct referenced in the above paragraphs interfered with the performance 

of the erewmembers' duties. 

For these reasons, it appears that you violated the following Federal Aviation Regulation (Title 

14, Code of Federal Regulations): 

(a) Section 121.317(f), in that, as a passenger required by section 121.311(b) to occupy a 

seat or bertii, you failed to fasten your safety belt about yourself and keep it fastened 

while the "Fasten Seat Belt" sign was lighted; 

(b) Section 121.317(k), in that you failed to comply with instructions given you by a 

crewmember regarding comphance with paragraph (f) of this section; and 
Mr. Brian Wallaesa . 2 

(c) Section 121.580 in that you threatened, intimidated, or interfered with a crewmember 

in the performance of tlie crewmember's duties aboard an aircraft being operated. 

Under 49 U.S.C. 46301(a)(5)(A), you are subject to a civil penalty for the violation noted. The 

maximum penalty for each violation is $11,000.00. We propose to assess a civil penalty for the 

. violations noted in the total amount of $5,500.00. 

Enclosed is information on your options in responding to this Notice. The options include 

-participating.in.an.infomial.conference_with.an.FAA.attorney,.and.submission.ofinformation_to_ 

the FAA for consideration. You must submit, in writing, your choice of the alternatives 

explained on the enclosed information form, on or before 30 days after you receive this Notice. 

If you fail lo submit your choice within that time, you will have no ftirther right to participate in 

the informal procedures. 

In the alternative, you may pay your civil penalty with a credit card over the Internet. To pay 

electronically, visit tlie web site at httn:/Avw>v.i)av.gov and click on "Civil Fines and Penalty 

Payments" which will bring you to tlie "FAA Civil Penalty Payments - Western-Pacific 

Region" page. You must then complete the requested information and click "submit" to pay by 

credit card. 

Please direct all communications in this matter to Theodore P. Byrne, FAA Attorney, AWP-7.5, 

FAA, Office of Regional Counsel, P.O. BOX 92007, LOS ANGELES, CA 90009-2007, 

telephone number (310) 725-7112. 

NAOMI TSUDA 

Regional Counsel 

By: 

Theodore P. Byrne 

Attorney 

Enclosures 

cc: AWP-230, LAS-FSDO 
AiTAcm^MT p 

DEPARTMENT OF TRANSPORTATION 

FEDERAL AVIATION ADISIINISTRATION 

^Oy22['. 

Rules of Practice for F.\A Civil Penalty' Proceedings 

14 C.F.R. § 13.16 and Subpart G 

FAA Handout 2 FAA Rules of Practice for Civil Penalty Proceedings 
§13.16 14 CFR Ch. i (1-1-08 Edilion) 

(j) 550,000, if the violation was committe d by any person before December 

12, 200i3; 

(ii) S4OO,0OO, if the violation .was com-'' 

mitte d by a person othe r than an indl-

~-v]dual"or-EmaI3-busLness-concern-on-or_ 

after December 32, 2003; 

(iji) J50,000,' if the violation was committe d by an individual or small business concern on or after December 12, 

2003; or 

(2) An in rem action, seizure of alr~ 

craft subject to lien, suit for injunctive 

relief, or for collection of an assessed 

civil penalty. 

(c) Th e Administrato r ma y compromis e any civil penalty proposed 

under this section, before referral to 

t h e United State s Attorney General, or 

the delegate of the Attorney General, 

for prosecDtion. 

(1) Th e Administrator, through th e 

Chief CounBel; the.Deput y Chief Counsel for Operations; the Assistan t Chief 

Counsel for Enforcement; the Assistan t 

Chief Counsel, Europe, Africa, and Middie East Area. Office; the Regional 

Counsel; the .Aeronautical Center 

Counsel; or the Technical Cente r Counsel sends a civU penalty lette r to th e 

person charged with a violatio n cited 

in n3.14(ft). The civil penalt y lette r 

contains a statemen t of the charges, 

the applicable law, rule , regulation, or 

order, th e amoun t of civil penalt y tha t 

the AdmlniBtrator will accep t In full' 

settlemen t of th e action or an offer t o 

compromise th e civil penalty. 

(2) Not late r than 30 days after receipt of the civil penalt y letter, th e 

person charged with a violatio n ma y 

present any materia l or information In 

answer to the charges to th e agency attorney, either oraily or in writing, tha t 

mayexplain , mitigate , or deny th e violation or tha t may show extenuatin g 

circumstances. The Administrato r wUl 

consider any materia l or-informatio n 

submitted in accordanc e wit h this 

paragraph to determine ' whethe r th e 

person is sabject.t o a civiJ penaJty or 

to determine th e amoun t for which th e 

Administrator will compromis e th e ac -

tion. 

(3) If the person charged with th e violation offers to compromis e for a specific amount, tha t person must send t o 

the airency attorne y a certified check 

or money order for tha t amount , payable to the Federal Aviation Administration, The Chief ConnBel; th e Deput y 

Chief Coimsel for Operations; th e ABsistant Chief Counsel for Enforcement; 

the Assistant Chief Counsel, Enropo, 

,Africa.,and_Mlddle East Area OtClce; 

the Regional Counsel; Aeronautical " 

Center Counsel; or th e Technica l Cent e r Coimsel may accept the certified 

check' or money order or ma y refuse 

and return th e certlflBd check o r 

money order. 

(4) If the offer to compromis e Is ac -

cepted by the Administrator, th e agency attorne y will send a lette r to th e 

person charged with the.violatio n stating tha t the certified check or mone y 

order is accepted in full settlemen t of 

the civil penalty action. 

(5) If the • partie s canno t agre e t o 

compromlBe th e civU penalt y actio n or 

the offer to comproraiBa is rejected an d 

the certified chock or money order submitted In compromis e Is returned , Xiie 

Administrator ma y refer th e civil penalty action to th e United State s Attorney General, or the'delegat e of th e Attorney General, t o begin proceedlngB In 

a United State s distric t court, pursua n t to th e authorit y In 49 U.S.C: 46305, 

to prosecut e and collec t th e civil penalty . 

[Anidt. I3-ia. 63 FR S4653, Bept. T. 1968; u 

amendtjd b ; Aindt. 13-30, 55 FR lulZS, Apr. 20. 

1990; Amdt. lS-29. 62 FR 468C5. Sept. 4. ISffl; 

Amdt. J3-32; 69 t H SMBS. Oct. 4, 20M1 

i 13.36 CivU Pezia]ties: Adminiatratiy c 

DsecEsmeDt Bgainst a perso n otbc r 

tha n an mdividua l actin g a s a pUot, 

flight engineer, mechfuuc , or rc> 

painnon . AdminiEtretive BBSdrsXDcnt sgsisv l BU •perBOOB for baz -

erdouB materials violatioiio. 

(aj Th e FAA uses theso procednre a 

•when It aasesaes a civil penalt y against 

a person othe r tha n a n IndlvidQal acting a s a pilot, flight engineer, me -

chanic , or repairma n for a violatio n 

cited in the first sentenc e of 49 U.S.C. 

46301(d)(2) or in 49 U.S.C. 47531, or an y 

implementin g rale . regoJatlo n or order. 

(h) District couTi jurisdiction. Notwith -

standin g th e provlelone of paragrap h 

(a) of this section , th e Unite d State s 

distric t courts hav e exclnsive Jurisdiction of any civil penalt y actio n Initiated by th e FAA for violation s described In thos e paragraphs, unde r 49 

U.S.C. 46301(d)(4), if— 

38 
Federal Aviation Administration, DOT §13.1 6 

(1) Th e amoun t in cantroveray is 

mor e tha n S50.000 for a violation committe d by any person before December 

32, 2003; 

(2) Th e amoun t in controversy is 

~ TTiore-than 1100,000 {oT-a-TiQ\ation.com^ 

mitte d by a personothe r than an individual or small busine.3S concern on or 

after Decembe r 12, 2003; 

(3) Th e amoun t in controversy is 

mor e tha n i50,000 for a violation committe d by an individual or- a small 

business concern'on or after December 

12. 2003; 

(4) Th e action is in rem or'anothe r 

actio n in rem based on the same violation ha s been brought; 

(5) Th e action involves an- aircraft 

subjec t to a lien tha t has been seized 

by th e Government; or 

(6) Anothe r action ha s been brought 

for an injunction based on th e f^ame 

violation . • 

(c) HazoTdDus maieriah violatior^s,' The 

FAA ma y assess a civil penalty against 

any person who knowingly commits an 

ac t In violation of 49 U.S.C. chapte r 51 

or .a regulation prescribed or order 

issued under tha t chapter, under 49 

U.S.C. 5323 and 49 CFR J.i7(k). An order 

assessing a civil penalty for a violation 

unde r 49 U.S.C. chapte r 51, or- a rule , 

regulation, or order issued thereunder, 

is issued only after the following factors ba^ehee n considered: 

(3) The . nature , circumstances, extent, and gravity of th e violation; 

(2) 'With respec t to the violator, th e 

degree of culpability, any history of 

prior violations, th e ability to pay, and 

any effect on th e ability to continue t o 

do business; and 

(3) Such othe r matters as justice ma y 

require . 

(d) Order assessing civil pena\t]j. An 

orde r assessing ci'vil penalty ma y be 

issued for a violation described in para -

graphs (a) or (c) of this section, or a s 

otherwise provided by statute , after 

notic e and opportunity for a hearing . A 

person charged -with a -violation ma y be 

subject to an order asse.nsing civil penalt y ID the following circumstances: 

(1) An order assessing civil penalt y 

may be issued if a person charged wit h 

a violation submits or agrees to submi t 

a civil penalty for a violation. 

(2) An order assessing civil penalt y 

may be issued if a person charged wit h 

a violation does no t request a hearia e 

under paragraph (g){2)(ii)' of this sec -

tion within 15 days after receipt of a 

final notice of proposed civil penalty . 

(3) Unless an appeal Is filed with tb e 

FAA deciaionmaker in a timel y mariner, an initial decislon'or'orde r of-an— 

administrative law JudR-e shall be considered an order RssesBing civil penalt y 

if an administrative law judge finds 

tha t an alleged violation occurred an d 

determines tha t a clvH penalty , in a n 

amoun t found appropriat e by th e administrative law Judge, is warranted . 

(4) Unless a petition for review is 

filed with a U.S. Oonrt of Appeals i n a 

timely manner, a final' decision an d 

order of th e Administrato r shall be 

considered an order assesBing civil pen -

alty if the FAA decisionmake r finds 

tha t an alleged i-iolatlon occurred an d 

a civil penalty is warranted . 

(e) Delegation of authority. (3) Th e au -

thorit y of the Administrato r unde r 49 

U.S.C. 46301(d), 47531, and 5123, and 49 

CFR 1.47(k) t o initiat e and assess civil 

penaltie s for a violation of thos e statute s or a rule , regulation , or orde r 

issued thereunder, is delegated to th e 

Deputy Chief, Counsel for Operations; 

the Assistant Chief Counsel for En -

forcement; th e Assistan t Chief Counsel, 

Europe, Africa; and Middle East Are a 

Office; th e Regiona l Counsel; th e Aero -

nautical'Cente r Counsel; and th e Tech -

nical Cente r Counsel. 

(2) The authorit y of th e Administrato r under. 49 U.S.C. 5123. 49 CFR 

1.47(k), 49 U.S.C. 46301(d), an d 49 U.S.C. 

46305 t o refer cases t o th e Attorne y 

General of th e United States, o r th e 

delegat e of th e Attorne y General, for 

collection of civil penaltie s Is dele -

gated to th e Deput y Chief Counse l for 

Operations; th e Assistan t Chief Counsel for Enforcement; Assistan t Chief 

Counsel, Europe," Africa, an d Middl e 

East Area Office; th e Regiona l Counsel; 

t h e Aeronautica l Cente r Counsel; and 

t b e Technica l Cente r Counsel. 

(3) The authorit y of th e Administrato r unde r 49 U.S.C. 46301(f) to compromis e th e amoun t of a cJ-vU penalt y 

imposed is delegated t o th e Deput y 

Chief Counsel for Operations; tb e Assistan t Chief Counsel for Enforcement ; 

Assistan t Chief Counsel, Europe , Africa, and Middle East Are a Office; th e 

Regiona l Counsel; th e Aeronautica l 

39 
§13.16 14 CFR Ch. I (1-1-08 Edition) 

Center Counsel; and tbe Technical Center CoonseJ. 

(4) The authority of the Administrator under 49 U.S.C. 5123 (e) and (0 

and 49 CFR 1.47(k) to compromise the 

amount~of "a^clvil" penalty-imposed-isdelegated to the Deputy Chief Counsel 

for Operations; the Assistant Chief 

Counsel for Enforcement; Assistant 

Chief Counsel, Europe, Africa, and Middle East Area Office; the Regional 

Counsel; the Aeronautical Center' 

Counsel; and the Technical Center 

Counsel. 

(D Notice of proposed civil pe-nalty. A 

civil penalty action Is initiated by 

. sending a notice of proposed civl] penalty to the person charged'with a violation or to the agent for services for tbe 

person under 49 U.S.C. 46103. A notice 

of proposed c]-\rl] penalty will be sent to 

the individual charged with a violation 

or to the president of the corporation 

or company charged with a violation. 

In response to a notice of proposed civil 

penalty, a corporation or company may 

designate in writing another person to 

receive documents in that ci-vil penalty 

action. The notice of proposed civil 

penalty contains a statement of the 

charges and the amount of the proposed civil penalty. Not later than 30 

days after receipt of the notice of proposed civil penalty, the person charged 

with a violation shall— 

(!) Submit the amount of the- proposed civil penalty or an agreed-upon 

amount, in which case either an order 

assessing ci-vil penalty or compromise 

order shall be issued in that amount; 

(2) Submit to the agency attorney 

one of tbe following; 

(i) 'Written information, including 

documents and witness statements, 

demonstrating that a violation of the 

regulations did not occur or that a penalty or the amount of the penalty Is 

not warranted by the circumstances, 

(11) A written request to reduce the 

proposed civil penalty, the amount of 

reduction, and the reasons and any 

documents supporting a reduction of 

the proposed civil penalty, including 

records indicating a financial-inability 

to pay or records showing tha t payment of the proposed civil penalty 

would prevent the person from continuing in business. 

(lii) A written request for an Informal conference to discuss the matter 

with the agency attorney and to submit relevant information or docnments; or 

— (3)-Reqoest a hearing,.In.whlch.case a _ 

complaint Bhall bo filed with the hearing docket clerk. 

(g) Final notice of proposed ciuil penalty. A final notice' of proposed civil 

penalty may be issued after participation in Informal procedures provided in 

paraETaph(0(2) of this section or failure to respond in a timely manner to a 

notice of proposed civil penalty. A final 

notice of proposed civil penalty will be 

eent to-the indlvidaal charged with a 

violation, to the president of the corporation or company charged with, a 

violation, or a person previously designated in -writing by the individual, 

corporation, or company to . receive 

documents in that civil penalty action. 

If not previously done in response to a 

notice of proposed civil penalty, a corporatlonor company-may designate in 

writing another person to receive documents in that civil penalty action. The 

final notice of proposed civil penalty 

contains a'statement of the charges 

and the amount of the proposed civil 

penalty and, as a result of information 

submitted to the agency attorney during informal procedures, may modify 

an allegation or a proposed civil penalty contained In a notice of proposed 

civil penalty. 

(1) A final notice of proposed civil 

penalty may be Issued— . 

(i) If the person charged with a violation falls to respond to the notice of 

proposed ci-vil penalty within. 30 days 

after receipt of that notice; or 

(ii) If the parties participated In aay. 

informal procedures under paragraph 

(f^(2) of this section and the parties 

have not agreed to compromise the action or the agency attorney has not 

agreed to withdraw the notice of proposed civil penalty, 

(2) Not later than 15 days after receipt of the final notice of proposed 

civil penalty, the person charged with 

a violation shall do one of the following— 

(1) Submit the amount of the proposed civil penalty or an agreed-upon 

amount, in which case either an order 

40 
Federal Aviation Adminislration, DOT §13.16 

assessing civil penalty or a compromise order shall be Issued in that 

amount; or 

(ii) Reqoeat a hearing, in which case 

q complaint shall bo filed with the 

hearing doclretlilerk: ' 

(h) Request for a hearing. Any person, 

charged with a \Tolation may request a 

bearing, pursuant to paragraph {f)(3) or 

paragraph. (g)(2)(ll) of this section, to 

be conducted in accordance with the 

procedures in subpart G of this part. A 

person requesting a hearing shall file a 

-written request for a hearing -with the 

hearing docket clerk.' using the appropriate address set forth in SlS.ZlOfa) of 

this part, and shall mail a copy of the 

request to the agency attorney. The request for a hearing may be in the form 

of a letter bet' must be dated and 

signed by the person requesting a hearing. The request lor a hearing may be 

typewritten or may be legibly hand-

•wrJtten. 

(i) Hearing. If the person charged 

with a violation requests a hearing 

pursuant to paragraph (0(3) or paragraph fg)(2)(ii) of this section, the 

original complaint shall be filed -with 

the hearing docket clerk and a copy 

shall be sent to the person requesting 

the hearing. The procedural rules In 

subpart G of this part apply to the 

bearing and any appeal. At the close of 

the hearing, the administrative law 

judge shall issue, either orally on the 

record or in -writing, an mltial decision, including the reasons for the decision, that contains (indlngs- or conclusions on the allegations contained, and 

the civil penalty sought, in the complaint. 

(J) Appeal. Either party may appeal 

the administrative law judge's initial 

"decision to- the FAA- decisionmaker--

pursuant to the procedures In subpart 

G of this part. If a party flies a notice 

of appeal pursuant to 513.233 of subpart 

G, the effectiveness of the Initial decision Is stayed until a final decision and 

order of the Administrator have been 

entered on the record. The FAA decisionmaker shall review the record and 

issue a final decision and order of the 

Administrator that affirm, modify, or 

reverse the initial decision. The FAA 

decisionmaker may assess a civil penalty but shall not assess a civil penalty 

in an amount greater than that sought 

in the complaint. 

(k) Payment. A person shall pay a 

civil penalty by sending a certified 

check or money order, payable to the 

-Federal—Aviation-Administration, _to _ 

the agency attorney. 

(1) CoIZecIion of civil penalties. If an indi-vidual does not pay a civil penalty 

imposed by an order assessing civil 

penalty or other final order, the Administrator may take action provided 

under the law to collect the penalty, 

<m) A party may seek review only of 

a final decision and order of the FAA 

decisionmaker involving a violation of 

the Federal aviation statute or the 

Federal hazardous materials transportation law. Judicial review is In the 

United States Court of Appeals for the -

District of Columbia Circuit _ or.^ .the 

United States court of appeals for the 

circuit In which the party resides or 

has the party's principal place of business as provided In {13.235 of this part. 

Neither an initial decision or an order 

issued by an administrative law judge 

that has not been appealed to the FAA 

decisionmaker, nor on order compromising a civil penalty action, may be 

appealed under any of those sections. 

(n) Compromise'. The FAA niay compromise the amount of any civil -penalty imposed under this section, under 

49 U.S.C. 5123(e), 46031(f). 4B303(b), or 

46338 at any time before referring, the 

action to the United States Attorney 

General, or tbe delegate of the Attorney General, for collection. 

(J) An agency attorney may compromise any civil penalty action where 

a person charged with a violation 

agrees to pay a civil penalty and the 

FAA agrees not to make a finding of 

violation. Under such agreement, a 

compromlBe order is issued following 

the payment of the agreed-on amount 

or tbe signing of a promissory note. 

The compromise order states the following: 

(i) The person has paid a cl-vil penalty 

or has signed a promissory note providing for installment payments. 

(ii) The FAA mate s no finding of a 

violation. 

fill) The compromise order shall not 

be used as evidence of a prior violation 

41 
§13.17 MCFRCh. HI-1-08 Edilion) 

in any subsequent civil penalty pro -

ceeding or certificate action proceeding. 

(2) An agency Bttoraey ma y compromis e the amount of a civil penalt y 

proposed ~Ln~a-notice—assessod-in-onorder, or' imposed in a compromis e 

order. 

fAmdt. 13-32: 70 FR 1B13, Jan. 31, 2005: 70 FR. 

2925. Jan . IB, 2005. as amended a t 70 FR 8238. 

Feb . IS, 2005; 71 FR 7fr]«. Dec. 5. 2006J 

§ ]3.)7 ' Seizure of aircrafL 

(a) Under section SOS of th e Federa l 

Aviatio n Act of 195S (49 U.S.C. 1473), a 

Stat e or Federal law enforcement officer, or a Federal Aviation Administra -

tio n safety inspector, authorized iij an 

order of seizure issued by th e Regiona l 

AdminisLrotor of tbe region, or by th e 

Chief Counsel, may summarily seize on 

aircraft tha t is involved in a violatio n 

for which a civil penalty ma y be im -

posed on its owner or operator. 

(h) Each person seizing an aircraft 

unde r this section shall place it-in th e 

nearest'availabl e and adequat e publi c 

storage facility in the judicial distric t 

in which it was seized. 

(c) The Regional Administrato r or 

Chief Counsel, withou t delay, sends a 

writte n notice and a copy of- this sec -

tion, to th e registered owner of th e 

seized aircraft, and to each othe r persons shown by FAA records to have a n 

interest in it, atating the— 

(1) Time , date , and place of seizure; 

(2) Name and address of the custodisji 

of th e aircraft; 

(3) Reasons for the seizure, inclndin g 

t b e violations believed, or judJclally 

determined, to have been committed ; 

and 

(4) Amount tha t may. be tendere d 

as— 

(i) A-compromise of a cJvlJ penalt y 

for th e alleged violation; or 

(ii) Paymen t for' a civil penalt y imposed by a Federal court for a proven 

violatiDE. 

(d) The Chief Counsel, or th e Re -

gional Counsel or Assistan t Chie f 

Counsel for the region or area.in wMc h 

an aircraft is seized under this section , 

immediately .sends a report to th e 

United State s Distric t Attorney, for th e 

judicial distric t in -which it was seized, 

requesting th e Distric t Attomey-t o institut e proceedings to enforce a lie n 

against the aircraft. 

(e) The Regional Administrator or 

Chief CoTuiBel directs the release of a 

seized aircraft whenever— 

—(l)-Tbe-all6ged~vi6lator_pays^a_cIvIl 

penalty or an amoun t agreed upon In 

compromise, and th e costs of seizing. 

storing, and maintaining th e aircraft; 

(2) The aircraft is seized unde r a n 

order of a Federal Court in proceedings 

in Tem to enforce a lien agaiDst th e aircraft, or the United State s Distric t Attorney for th e judicial distric t concerned notifies the FAA tha t th e DJBtric t Attorney refuses to institat e 

those proceedings; or 

(3) A bond in th e amoun t and wit h 

the Boreties prescribed by th e Clilcf 

Counsel, the Regional Counsel, or th e 

Assistant Chief Counsel Is deposited, 

conditioned on paymen t of th e penalty , 

or th e compromis e amount, and th e 

costs of seizing, storing, and maintain -

ing th e aircraft. 

[Doc. No. 18684. *4 FR 63723, Nov. 5. 197B. u 

Rnicnded by Amdt. I3~I9. M FR 39290, Sept. 

25. 1989; Amdt. 13-29. 62 FR 40865. Bept. 4. 

1997] 

filS.18 Ci\'ll peiiBltieii: AdminiBirativc 

BEtesenient agniiiRt an iudividuDl 

acting a s H pilot, flight cngiDCer, 

niecbBiiic, or rGpainnan. 

- (a) Generol. (1) This section appllest o 

each action in -which th e FAA seelcs t o 

assess a civil penalt y by administrativ e 

procedures against B ^ individua l actin g 

as a pilot, flight engineer, mechanic , or 

repairman, unde r 49 U.S.C. 46301((J)(5). 

for a violation listed in 49 U.S.C. 

4G3Dl(d)(2). This section does no t appl y 

to a civil penalt y assessed for violatio n 

of 49 U.S.C. chapte r 51,. or a rule , regu -

lation, or orde r issued thereunder. 

(2) District court jvrisdiction.- Notv^ithBtanding th e pro-visions of paragrap h 

(a)(l} of this section, th e United State s 

distric t coDTtB hav e exclusive Jurisdic -

tio n of any civil penalt y actio n Involv -

ing a n Individua l actin g a s a pilot , 

flight engineer, mechanic , or repairm a n for violation s described in tha t 

paragraph , unde r 49 U.S.C. 46301(d)(4), 

if: 

(1) The amoun t in controvers y is 

mor e tha n 550,000. 

42 
1ft. 

-* * 

Federal Avialion Adminislrotion, DOT 

(b) The Presiding Officer may issue 

an order under this section if— 

(1) The testimony or other information from the -witness may be necessary 

-to-th e publiclnterest;^n d ; 

(2) The witness has refused or is lilie ^ 

ly to refuse to testify.or provide othe r 

information on the basis of a privilege 

against self-incrimination. 

(c) Immunit y provided by this section will not become effective until th e 

person ha s refused to testify or pro-vide 

othe r information on the basis of a 

privilege against - self-incrimination, 

and an order under this section ha s 

been issued. An order, however, ma y be 

issued prospectively to become effective in the event of a claim of th e 

privilege. 

SJ3.IZI Witness fees. 

•All wltnesECB appearing ahall be compensated a t th e same rat e as a witness 

appearing before a United State s Distric t Court. 

S 13.123 SubinisBion'by party to the invcfftigstioD. -

(a)' DnrlJig an investigation conducted under this subpart, a party ma y 

submit to th e Presiding Officer— 

(1) A list of witnesses to be called, 

specifying th e subject matte r of th e expected testimon y of each witness, and 

(2) A list of exhibits to be considered 

for inclusion in the record. 

(b) If the Presiding Officer determines tha t th e testimon y of a witness 

or the receipt of an exhibit in accordance with paragrap h (a) of this section 

will be relevant, competent and mate -

rial to the investigation, the Presidin g 

Officer may subpoena the witness or 

use the exhibit during the investiga -

tlonr 

filS.lZS Depositions. 

Depositions for investigative purposes may be take n a t the discretion of 

the Presiding Officer with reasonabl e 

notice to th e part y under investiga -

tion. Such depositions shall be take n 

before the Presidin g Officer or othe r 

person authorized t o administe r oath s 

and designated. by th e Presiding Officer. The testimon y shall be reduced to 

writing by th e person taking th e deposition, or unde r th e direction of-tha t 

person, and where possible shall the n 

§13.201 

be subscribed by th e deponent. Any 

person may be compelled to appear and 

testify and to produce physical and 

documentary evidence. 

"5 13;i27~Ileporls,-deciBionB-and-orders 

The Presiding Officer shall issue a 

\\Titten report based on th e record developed during th e formal investiga -

tion, inclnding a summar y of principal 

conclusions. A summar y of principa l 

conclusions shall be prepared by th e official who Issued the order of investiga -

tion In every case -which results in no 

action, or no action a s to a particula r 

part y to tb e Investigation. All such re -

ports shall be famished to the partie s 

to the investigation and filed in th e . 

public docltet. Insertion of th e report 

in the Public Docke t shall constitut e 

"enterin g of record " and publicatio n a s 

prescribed by Bectlon'313(b) of th e Federa l Aviation Act. 

S 13.129 PoEt-invcstigation action. 

A decision on -whether to initiat e 

subsequent action.shall b e mad e on th e 

basis of th e record developed durin g 

t h e formal investigation and an y othe r 

information in th e possesiiion of th e 

Administrator. 

513.131' Other procedures. 

Any question concerning tb e scope or 

conduc t of a formal Investigatio n no t 

covered In this subpart ma y be rule d on 

b y the Presiding Officer on motio n of 

t h e Presiding Officer, or on th e motio n 

of a party or a person testifyin g or producing evidence. 

Subpart G—Rules ot Proctice in 

FAA Civil Penalty Actions 

SOURCE: Amdt. 13~21, 55 FR 2:7575. July 3. 

1990, naleBS oLfaerwlse noted. 

S 13.201 ApplicabUity. 

(a) This subpart applie s t o all civil 

penalt y actions initiate d unde r §13.16 

of this part in which a hearin g ha s been 

requested. 

(b) This subpart applie s only t o proceedings initiate d afte r Septembe r 7, 

398B. All othe r cases, bearings', or othe r 

57 
§13.202 14 CFRCh. 1 (Kl-08 Edilion) 

proceedings pending or in progrens before Septembe r 7, 398B, are no t affected 

by th e rule s in this subpart. 

__[Anidt. 13-21, 55 FR 21bl5, Jul y 3, 1990, ds 

aineDded-by-AnidL.-13-32; 69 FR b?47],.OcU fl, 

§13.20 2 Definilioaa . 

>i dmrn is (ratine law judge means an administrativ e la-w judge appointed pursuan t t o th e provisions of 5 U.S.C. 3105. 

Agency attorney means the Deputy 

Chief Counsel for Operations, th e AsBiKtant 'Chief Counsel, .Enforcement, 

t h e AKsistan't Chief Counsel, Europe, 

Africa, and Middle East Area Office, 

each Regional Counsel, the AeroBBLUticB.} Center Coansel, or the Technical Cente r Counsel, or an attorne y on 

t b e staff of the Assistant Chief Counsel, Enforcement,, the Assistant Chief 

Counsel, Europe, Africa, and Middle 

East Are a Office, each Regional Counsel, the Aeronautica l Center Counsel, 

or th e Technical Center Counsel who 

prosecute s a civil penalty action. An ' 

agency attorne y shall no t include : 

(1) Th e Chief Counsel, th e Deputy 

Chief Counsel for Policy and Adjudication, or th e Assistant Chief Counsel for 

Litigation ; 

(2) Any attorne y on the staff of th e 

Assistant Chief Counsel for Litigation; 

(3) Any attorne y who is supervised in 

a civil penalty action by a person who • 

provides scch advice to the FAA decisionmake r in tha t action or a factually-related action. 

Aitornep means n person licensed by a 

state , th e Distric t of Columbia, or a 

territory of th e United State s to prac -

tice law or appear before th e courts of 

tha t stat e or territory . 

Complaint meejas a documen t issued 

by an agency attorne y alleging a -violation of a provision of the Federa l aviation statut e listed in the first sentenc e 

of 49 U.S.C. 46303(d)(2) or in 49 U.S.C. 

^7531, or of the Federa l hazardous ma -

terials transportatio n statute , 49 

U.S.C. 5121-5128, or a rule , regulation , 

or order issued under those" statutes, 

tha t has been filed with th e Hearin g 

Docket after a hearing hag been re -

qoe.^ed under §13.iecf)(3} or (g)(2)(il) of 

this part. 

fjiA deasionmaker mean s th e Admin -

istrator of the Federal Aviation Administration, actin g in the capacity of 

t b e decisionmaker on appeal, or an y 

person to whom the Administrato r ha a 

delegated tb e Administrator's decisionroaking authorit y In a civil penalty ac -

tion. As used in this subpart, th e PA A 

~deciEionmaker-is-the-official-author-. . 

ized to issue a final decision and orde r 

of the Administrator in a civil penalt y 

action. 

Mail Includes U.S. certified mail, U.S . 

registered mail, or use of an overnigh t 

express courie r service. 

Order assessing civil penally mean s a 

document tha t contains a finding of a 

violation of a provision of th e Federa l 

aviation statut e listed in the first sen -

tence of 49 U.S.C. 46301(d)(2) or In 49 

U.S.C, 47531, or of th e Federa l barardous materials transpori-ation stat -

ute , 49 U.S.C. 5121-5126, Or a rule , regn -

Jation or order issued under thos e etatutes, and ma y direct paymen t of a civil 

penalty. Unless an appeal is filed-with 

the PAA decisionmake r in a timel y 

manner, a n initia l decision or orde r of 

a n administrativ e law judge shall b e 

considered an order assessing civil penalt y if an administrativ e law judg e 

finds tha t an alleged violation occurred 

and determine s tha t a ci-vil penalty , in 

an amoun t found appropriat e by th e -

administrativ e law judge , is warranted . 

Unless a petition for review Is filed 

with a U.S. Court of Appeals in a time -

ly manner, a final dociston and orde r of 

t b e Administrato r shall be considered 

an order aBsessing civil penalt y If th e 

FAA decisionmake r finds tha t an alleged -violation occurred and a civil 

penalty is warranted . 

Party mean s th e responden t or th e 

Federa l Aviation Administratio n 

(FAA), 

Personal delivery include s hand-deliv -

ery or use of a contrac t or express messenger service, "Persona l delivery " 

does no t include th e use of Govemmen t 

interoffice mail service . 

Fleadinfl mean s a complaint , a n an -

swer, and an y amendmen t of thes e doc -

urhents permitte d unde r this subpart . 

Properly addressed mean s a documen t 

tha t shows an address containe d i n 

agency records, a residential , business, 

o r othe r address submitte d by a perso n 

on any documen t provided unde r this 

subpart, or an y othe r address shown by 

othe r reasonabl e an d availabl e mean.^. 

58 
Fedt-ral Aviolion Adminisffolion, DOT § 13.205 

Respondent means a person, corporation , o r comp'ajiy named in a complaint, - -

lAmdt. 13-21, &5 FR 27575, July 3. 1990. as 

-amendcd-by-Amdl..13-24. SB FR 50241, Sept. 

24. 1993; Amdt. 13-29, 62 FR 4G866, Septr^, " 

159T, 70 TR B23B. J-cti. IB. 2005; 71 TH 1tHS4, 

Dec . U. 2006) 

{ 15.20 3 Separntio D of functions. 

(a) Ci-vil penalty proceedings, including heoriugs, shall be prosecuted by an 

agency attorney . 

(b) AJQ agency employee engaged in 

the performajice of investigative or 

prosecutoria l functions in a civil penalt y actio n shall not, in tha t case or a 

factually-related case, participat e or 

give advic e in a decision by the administrativ e law judge or by the FAA decisionmake r on appeal, except as counsel 

or a witness in tbe public proceedings. 

(c) Th e Chief Counsel, tb e Deputy 

Chief Counsel for Policy and Adjudication, an d th e Assistant Chief Counsel • 

for Litigation. ' or an attorne y on the 

staff of the Assistant Chief CoDnsei for 

Litigatio n will ad-vise tbe FAA decisionoiake r regarding an initial decision 

or an y appeal of a civil penalty action 

to th e FAA decisionmaker. 

lAmdt. 33-21. 55 FR 21575. Jal y 3, 1990, &a 

nmenijed by Amdt. 13-24, 58 FR M24I. Sept, 

24, JUaa; 70 TB S23B, Feb. 38, 2005) 

513.20 4 Appearance s an d rights of 

parties . 

(a) Any party ma y appear and be 

hear a in person. 

(b) Any party may be accompanied, 

represented, or advised by an attorne y 

• or rijpresentative designated by th e 

part y and may be examined by tha t attorne y or representative in any proceeding governed by this subpart. An 

attorne y or representative who represents a party may file a notice of appearanc e in the action, in th e manne r 

provided in §13,210 of this subpart, and 

shall serve a copy of the notic e of ap -

pearaince on each party , in th e manne r 

provided in §13.213 of this subpart, be -

fore participating in a-ny proceeding 

governed by this subpart.'Th e attorne y 

or representative shall include th e 

name , address, and telephone numbe r 

of th e attorney or representative in th e 

notici! of appearance. 

(c) Any person may request a copy of 

a document upon payment of reason -

able costs, A person may keep an original document, data, or evidence, wit h 

t h e consent of the administrative la-w 

-judge,~by-subEtituting a legible^copy of 

the documen t for the record. 

fi 13.205 AdminlEtrative law jud|;eB. 

(a) Powers of an administrative law 

judge. In accordance with th e rule s of 

this subpart, an administrativ e la-w 

judge may : 

(1) Give notic e of, and hold, pre -

hearing conferences and hearings; 

(2) Administe r oaths and affirma -

tions; 

(3) Issue subpoenas authorized by la-w . 

and issue notices of deposition re-' 

quested by th e parties; 

(4) Rul e on offers of proof; 

(5) Receive relevant and materia l evidence; 

(6) Regulat e the course of tb e hearin g 

in accordanc e with th e rule s of this 

subpart; 

(7) Hold conferences to settl e or to 

simplify th e issues by consent of th e 

parties; 

(8) Dispose of procedural motion s ajjd 

requests; and 

(9) Make findings of fact an d conclu-

- sions of law, and issue an initia l decision, 

(b) Limitations on the power of the administrative law judge. The administra ^ 

tiv e law jndge shall no t issu e an orde r 

of contempt , award costs t o an y party , 

or impos e an y sanction no t specified In 

this subpart. If th e administrativ e law 

Judge impose s any sanctio n no t specified in this subpart, a part y ma y file an 

interlo'cutory appea l of right wit h th e 

F AA decisionmake r pursuan t . to 

§ 13.239(c)(4) of this subpart. Thia aection does no t preclude a n administra -

tive law judge from issuing an orde r 

tha t bars a person from a specific proceeding based on a finding of obstrep-' 

erous or disruptive behavio r in tha t 

specific proceeding, 

(c) DisQualification. Th e adminlstra -

tiv c law Judge ma y disqualify himself 

or herself a t any time . A part y ma y file 

a motion , pursuan t to §13.218(f)(6). re -

questin g tha t an administrativ e law 

59 
§13.206 14 CFR Ch. 1 (1-1-08 Edilion) 

Judge be disqualified from the proceedings. 

(Arodt. 13-21. 55 FB 27576. Jn]y 3, 1990; 55 FH 

29293, July 18, 1990) 

§ 13.206 Intervention^ 

' (a) A person may submit a motion for 

leave to intervene as a party in a civil 

penalty action. Except for good cauae 

shown; a motion for leave to Intervene 

shall be submitted not later than 10 

days before the hearing. 

(b) If the administrative law Judge 

finds tha t Intervention will not unduly 

' broaden the Issues or delay the proceedings, the administrative law judge 

may grant a motion for leave to intervene if the person will be bound by any 

order or decision entered in tbe action 

or the person has a property, financial, 

or other legitimate interest that may 

not be addressed adequately by the parties. The administrative law Judge may 

determine the extent to which an intervenor may participate in the proceedings. 

S 13-207, Certification of dDcujnents. 

(a) Signature required. The attorney of 

record, the party, or the party's representative shall sign each document 

tendered for filing with the hearing 

docket clerk; the administrative law 

judge, the FAA decisionmaker on appeal, or seiTed on each party. 

(b) Effect Qj signing a document. By 

signing a document, the attorney of 

record, the party, or the party's representative certifies that the attorney, 

the party, or the party's representative 

has read the document and, based on 

reasonable inquiry and to the best of 

that person's knowledge, information, 

and belief, the document is— 

(1) Consistent with these rules; 

(2) 'Warranted by existing law or tha t 

a good faith argument eiists for eitension. modification, or reversal of existing law; and 

(3) Not unreasonable or unduly burdensome or expensive, not made to harass any person, not made to cause unnecessary delay, not made to cause 

needless increase in the coat of the proceedings, or for any other improper 

purpose. 

(c) Sanctions. If the attorney of 

record, the party; or tbe party's representative signs a document in violation of this section, the administrative 

law judge or. the FAA decisionmaker 

shall: 

<1) Strike the pleading signed In violation of this section; 

—(2) Strike.tbe requestJpj^diBCDv^ery or 

the discovery response slgned'in viola^^ 

tion of this section and preclude further discovery by the party; 

(3) Deny the motion or request signed 

in violation of thla section; 

(4) Exclude the document signed In 

violation of this section from . the 

record; 

{5>- Dismiss the -interlocutory appeal 

and preclude further appeal- on tha t 

issue by the party who filed the appeal 

until an initial decision has been entered on the record; or 

(6) Dismiss the appeal of the admliilBtrative law judge's initial decision t o 

the FAA decisionmaker. 

I ]S.£Ofi Complaint. 

(a) Filing. The agency attorney shall 

file the original and one copy of the 

complaint with the hearing docliet 

clerk, or may file a -written motion 

pursuant to 5i3.Zlfl(f)C2)(l) of this subpart Instead .of filing a complaint, not 

later than 20 days after receipt by. the 

agency attorney of a request for hearing. The agency attorney should auggest a location, for the bearing when 

filing the complaint, 

(b) Service. An Eigency nttorDoy shall 

personally deliver or mail a copy of the 

complaint on the respondent, the president of the corporation or company 

named as a respondent, or a person deeignated by the • respondent to accept 

service of documents in the civil penalty action, 

(c) Contents. A complaint shall set 

fortJi the facta alleged, .any regulation 

allegedly -violated by the respondent, 

and the proposed civil penalty in sufficient detail to provide notice of any. 

factual or legal allegation and proposed civil penalty. 

(d) Motion to dismiss allegations or complaint. Instead of filing an answer to 

the complaint, a respondent may move 

to dismiss the complaint, or tha t part 

of the complaint, alleging a -violation 

tha t occurred on or after August 2, 

1990, and more than 2 years before an 

agency attorney iiisued a notice of proposed civil penalty to the respondent. 

60 
Federal Aviation AdmfnistfQtion. DOT §13.210 

(1) An administrative law judge may' 

n o t gran t the motion and dismiss the 

complain t or part of th e complaint if 

t h e administrativ e law Judge finds tha t 

_the_agency_ha 6 sho-wn good cause for 

any delay in issbing"the~notice-of-pro--

posed civil penalty,' 

(2) If th e agency falls to show good 

cause for any delay, an administrative 

law Judge may dismiss the complaint, 

or tha t port of the complaint, alleging 

a violatio n tha t occurred more tha n 2 

years before an agency attorney issued 

the notic e of proposed civil penalty t o 

t h e respondent. 

(3) A part y may appeal the admloletrativ e law judge's ruling on the motion to dismiss the complaint or any 

port of th e Complaint in accordance 

with § 33.219(b) of this subpart. 

[Admt, 13-21,. 55 FR 27575, Jijly 3, IWO. M 

amended by Admt. J3-22, 55 FR 31176, Aue, I, 

1990] 

§13.209 AnBWer. 

(a) Writing rcquir-ed. A respondent 

shall file a written ans-wer to the complaint, or may file a written motion 

pursuan t to Sl3.208(d) or §13.Z18(f)(l-4) 

of this Eobpartinsteado l tUing an answer, no t late r than 30 days after service of th e complaint. The answer ma y 

be in th e form cf a lette r but must be 

elated and sigTiBd by the person re-

. spending to the complaint. An answer 

may be typewritten or may be legibly 

handwritten. 

(b) Filing and address. A person filing 

an answe r shall personally deliver or 

mall the original and one copy of the 

answer for filing with the hearin g 

docke t clerk,-no t later'tha n 30 days 

after service of th e complaint to th e 

Hearing Docke t a t th e appropriate address se t forth in 513.2]CKa) of this subport. The person filing an answe r 

should suggest a location for th e hearing when filing the answer. 

(c) Service. A person filing an answe r 

shall serve a copy of .the answer on th e 

agency attorne y who filed the complaint. 

(d) Contend, An answe r shall Bpeciftcally stat e any affirmative defense 

tha t the respondent intends to assert 

a t the hearing. A person filing an en-: 

Ewer may include a brief statemen t of 

any relief requested in the answer. 

(e) Specific denial of allegations required. A person filing an answer shall 

admit , deny, or stat e tha t th e person is 

withou t sufficient knowledge or informatio n to admit or deny, each num-

-bered.paragraph of the complaint. Any 

statemen t or allegatioh^contained-in— 

t h e complaint tha t is no t specifically 

denied in the answer ma y be deemed an 

admission of th e trut h of tha t allega -

tion , A general denial of th e complain t 

is deemed a failure to flic an answer. . 

( 0 Failure to file answer, A person's 

failur e to file an answer withou t good 

caus e shall be deemed an admission of 

the.trut h of each allegation contained 

in th e complaint, 

[Docke t No. 1BBB4, 44 PR «3723. Nov. 5. lS79.aa 

arocDded &l 70 FB B238, Feb. IB, 3005] 

fi iS.210 Filing of documcnta. 

(a) Address.and method of filing.-A person tendering a documen t for filing 

shall personally deliver or mail the ' 

signed original and one copy of each 

documen t to th e Hearing Docke t usin g 

t h e appropriat e address: 

(1) / / delivery is in person, or via expedited coTin'er service: Federa l Aviation 

Administration , 600 Independenc e Avenue , SW., Wilbur Wrigh t Building -

Suit e 2W1000, Washington,. DC 20591; 

Attention : Hearin g Docke t Clerk, 

AGO-430. 

(2) U delivery is via U.S. Mail: Federa l 

A-viatlon AdministraUon , 800 Independenc e Avenue, SW., Washington, DC 

20591; Attention : Hearing Docke t Clerk, 

AGC-430. Wilbur Wrigh t Building— 

Suit e 2W3000. 

(b) Date of filing. A do.cument shall be 

considered to be filed on th e dat e of 

personaJ .delivery; o r if' mailed, th e 

mailin g dat e shown on th e certificat e 

of senrice, th e dat e sho-wn on th e postmar k if ther e is no certificat e of service , or othe r mailin g da-te shown by 

othe r evidence If ther e is no certificat e 

of service or postmarlc . 

(c) Form. Eac h documen t shall be 

typewritte n or legibly handvn-itten. 

(d) Contents, Unless otherwis e specified in this subpart, each documen t 

must contai n a short, plain statemen t 

of th e facts on which th e person's cas e 

rests and a brief statemen t of th e ac -

tio n requested in th e document , 

(e) Internet acctssibility of documents 

filed in the Hearing Docket. (1) Unless 

61 
§13.211 14 CFRCh. I (1-1-08 Edilion) 

protected from public disclosure by an 

order of the ALJ under 13.226, all documents filed in the Hearing Docket are 

accessible through the Federal Docket 

-Manaeement_Sy5tcm_(FDMS): http:// 

www.regulations'.gov. To acceKs a par " 

ticulor case file, use the FDMS number 

aiisigned to tbe case. 

(2) Decisions and orders issued by the 

Administrator in ci-vil penalty cases, 

indexes of decisions, contact-information for the FAA Hearing Docket and 

the • administrative law judges, the 

rules of practice, and other information are available on the FAA civil 

penalty adjudication Web site at:/i((p.-// 

www.faa.gov/about/office org/ 

headquarters offices/agc/ 

pol^adiudication/AGC400/Civi}__Penalty, 

I Amdt. 13-21. 55 FH 27575. Jal y 3, 1»0; 55 FR 

29293, Jnly 18i 1990, B.B amended a t 70 FR 8238. 

Feb. IB. 2O0i; 11 FR 7MS4, Dec. 5. 2(»6; 72 FR 

J45SS, M*r. 29, -2007; 72 FB 6M1A, Dec. 5, 20071 

E 13J21] Servic e of documenta . 

(a) General. A person Ehall serve a 

copy of any doconient filed with the 

Hearing Docket on each party a t tbe 

time of filing. Service on a party's attorney of record or a party's designated 

representative may be considered adequate service on the party. 

(b) Type of seritice. A person may 

serve documents by personal delivery 

or by mail. 

(c) Certificate of service. A person may 

attach a certificate of service to a document tendered for filing with the 

hearing docket clerk! A certificate of 

service shall consist of a statement, 

dated and signed by the person filing 

the document, that the document was 

personally delivered or mailed to each 

party an a specific date. 

(d) Dat£ of service. The date of aervice 

shall be the date of personal delivery; 

or if mailed, the mailing date shown on 

the certificate of service, the date 

sho-wn on the postmark if there is no 

certificate of service, or other maUlng 

date shown by other e-vidence If there 

is no certificate of service or postmark. 

(e) j4dditional time after seruice by mail. 

•\\rhenever a party has a right or a duty 

to act or to make any response within 

a. prescribed period after service by 

mail, or on a date certain after service 

by mail, 5 days shall be added to the 

prescribed period. 

(f) Service by the odministratiue law 

judge. The administrative law Jndge 

shall serve a copy of each document incloding, but not limited to, notices of 

prehearing conferences and hearings, 

"rollngs-on-motlons, - decisions, ^and orders,' upon each party to the proceedings by. personal delivery or by 

mail. 

(g) 'Valid service. A document Uiat was 

properly addressed, -was sent in accordance with this subpart, and that was 

returned, that was not claimed, or tha t 

was refused, is deemed to have been 

served in accordance with this subpart. 

The service shall be considered valid as 

of tbe date and the time that the document was deposited with a contract or 

express messenger, the document was 

mailed, or personal delivery of the document was refused. 

(h) Presumption of service. There shall 

be a presumption of service where a 

party or a person, who customarily receives mail, or receives it in the ordinary course of buslnefts, a t either the 

person's residence or the person's principal place of business, acknowledges 

receipt of the document. 

ilSSlZ Computation of tinie. 

(a) This section applies to any period 

of time prescribed or allowed by this 

subpart, by notice or order of the administrative law judge, or by aay applicable statute. - ' 

(b) The date of an act, event, or default, after which a designated time period begins to ran, is not incladed in.a 

computation of time under this eabpart. 

(c) Tbe last day of a time period Is Included in a computation of time ujiless 

it Is a Saturday, Sunday, or a legal holiday. If the-last day of the time period 

Is a Saturday, Sunday, or legal holiday, the time period runs until the end 

of the nezt day tha t is not a Saturday, 

Sunday, or legal holiday. 

i 13.213 ExtenBion of time. 

(a) Oral requests. The parties may 

agree to extend for a reasonable period 

the time for filing a document under 

this subpart, U the parties agree, the 

administrative law Judge shall grant 

one extension of time to each party. 

The party seeking tbe crttenslou of 

time shall submit a draft order t o the 

62 
fedetOi Aviation AdmlmsiToiion, DOT §13,217 

administrative law judge to be signed 

by thd administrative law judge and 

filed \vith the hearing docket clerk. 

The administrative law judge, may 

—-grant-additional oral requests for an 

extension of time where the parties" 

agree to the extension. 

(b) ]\'ntLen motion. A party Bhall file a 

written motion for an extension of 

time with tbe administrative law judge 

not later than 7 days before the document is due unless good cause for the 

late filing is shown. A party filing a 

written motion for on extension of 

lime shall serve a copy of the motion 

on each party. The administrative law 

judge may grant the extenslon'of time 

if good cause for the extension Is 

shown. 

(c) Failure to rule. If the adminlGtra-

. tive la\f judge fails to rule on a written 

motion for an extension of time by the 

date the document was due, the motion 

for an extension of time is deemed 

granted for no more than 20 days after 

the original date the document was to 

be filed. 

§13.214 Aracndmcnt of pleudings. 

(a) Filing and seruice. A party shall 

file the amendment with the administrative law Judge and shall serve a copy 

of the amendment on all parties to the 

proceeding. 

(b) J^we. A party shall file an amendment CO a complaint or an answer 

within the following: 

(3) Npt later than 15 days before the 

scheduled date of a-hearing, a party 

may amend a complaint or an answer 

without the consent of the adniinistra-

...tiyejlaw JTidge. 

(2) Less than 15 days before the 

scheduled date of a hearing, the administrative law Judge may allow amendment of a complaint or an answer only 

for good cause shown in a motion to 

amend. 

(c) Responses. The administrative la-w 

judge shall allow a reasonable time, 

but not more than 20 days from the 

date of fJliiig, for other parties to respond if an amendment to a complaint, 

answer, or other pleading has-been filed 

with the administrative law judge. 

913.216 Wjtbdr-B-wal of cojnplaint or 

request for hearing. 

At any time before or during a hearing, an agency attorney may withdra-w 

a complaint or a party may withdra-w a 

~requegt"for-a-heajlng-wltbout.tbe_cont 

sent 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 

vrith prejudice. 

j 13.216 Waiven. 

Waivers of any rights provided by 

statute or regulation shall be in writingor by stipnlatlon made at a hearing 

and entered into tbe record. The par^ 

ties shall set forth the precise terms of 

the waiver and any conditions. 

51SJ2I7 Joint procedural or discovery 

schedule 

(a) General. The parties may agree to 

submit a schedule for filing all prehearing motions, a schedule for conducting discovery in the proceedings. 

or a schedule that will govern all prehearing motions and discovery in the 

proceedings. 

(h) Form and content of schedule, IS the 

parties agree to a joint procedural or 

discovery schedule, one of tbe partjes 

shall file the joint schedule with the 

administrative law Judge, setting forth 

the dates to which tbe parties have 

agreed, and shall serve a copy of the 

Joint schedule on each party, 

(1) The joint schedule may include, 

but need not be limited to, requests for 

discovery, any objections to discovery 

requests, responses to discovery requests to which there ore no objections, - -Bubmlasion of - prehearing • motions, responses to prehearing motions, 

exchange of exhibits to be introduced 

at the bearing, and a list of witnesses 

that may be called at the hearing. 

(2) Each party shall sign the original 

Joint schedule to be filed with the administrative law Judge. 

(c) Tirm.. The parties may agree to 

submit all prehearing motions and responses and may agree to close discovery in the proceedings under the 

joint schedule within a rieasonable time 

before the date of tbe hearing, bnt not 

later than 15 days before the bearing. 

63 
513.218 14 CFRCh. I (1-1-Oa Edition) 

fd) Order establishing'joint schedule. 

The administrative law judge shall approve the Joint schedule filed by the 

_p^ties^On e party shall Eubmlt a draft 

order establishinga-Joint-Bchedule -to 

the administrative law Judge to be 

signed by the administrative law judge' 

and filed with the hearing' docket 

clerk. 

(e) Disputes. The administrative law 

judge shall resolve disputes regarding 

discovery or disputes regarding compliance with the joint schedule as soon as 

possible so that the parties may continue to comply -with the Joint schedule. 

(D Sanctions for failure to comply with 

joint schedule. If a party fails to comply 

with the administrative law judge's 

order establishing a Joint schedule, the 

administrative law judge may direct 

tha t party to comply with a motion to 

discovery request or, limited to the ei-

- tent of the party's failure to comply 

with a motion or discovery request, the 

administrative law Judge may: 

(1) Strike that portion of a party's 

pleadings; 

(2) PrecJnde prehearing or discovery 

motions by that party; 

(3) Preclude admission of that portion of a party's evidence at the hearing, or 

(4) preclude that portion of the testimony of that party's witnesses at the 

hearing. 

513.216 Motions. 

<a) General, A party applying for an 

order or ruling not specifically provided in this subpart shall do so by motion. A party shall comply with the requirements of this section when filing 

a motion with the administrative law 

judge. A party shall serve a copy of 

each motion on each party, 

(b) Ferm and contents. A party shall 

state the relief sought by the motion 

and the particular grounds supporting 

.tha t relief. If a party has evidence in 

support of a motion, the party shall attach any supporting evidence', including affidavits, to the motion, 

(c) Filing of motions. A motion made 

prior to the hearing must be in writing. 

Unless otherwise agreed by the parties 

or for goo.d cause shown, a party shall 

file any' prehearing motion'/ and shall 

serve a copy on each party, not later 

than 30' days before the hearing. Motions introduced during a hearing may 

be made orally on the record unless the 

administrative law judge directs otherwise. - ; '_ 

(d) Answers lo Tnotion3.'~Any-party-may— 

file an answer, with affidavits or other 

e-ridence in support of tbe answer, not 

later than 10 days after servico of a . 

written motion on tha t party. When a 

motion is made during a hearing, the 

answer may be made at the hearing ou 

the record,' orally or in writing, within 

a reasonable time determined by the 

administrative law judge. 

(e) Rulings on motions. Tbe ndroinietrative law judge shall rule on all motions as follows: ' 

(1) Discovery motions. The adminlstra-

• tive law judge shall resolve all pending 

diBcovery motions not later than 10 

days before the hearing, 

(2) Prehearing motions. The admlnlBtratlve law Judge shall resolve all pend~ 

ing prehearing motions not later than 7 

- days before the hearing. If the administrative law Judge Issues a ruling or 

order orally, the administrative law 

jndge shall eerve a written copy of the 

ruling or order, within 3 days, on each 

party. In all other cases, the adminls-

-trative law Jndge shall issue rullngB 

and orders in writing and shall serve a 

copy of the ruling or order on each 

party. 

(3) Motions made during the heari-ng. 

The administrative law judge may. 

Issue rulings and orders on. motions 

made during the bearing orally. Oral 

rulings or orders on motions must be 

made on the record, 

(f) Speciftc motions, A party may file 

the foilo-wtog motions -with the administrative law Judge: 

"" • (1) Motion to dismiss for insufficiency. 

A respondent may file a motion to dismiss the complaint for insufficiency instead of filing an answer. If the admin" 

Istrative law Judge denies the motion 

to dismiss the complaint for insufficiency, tbe respondent shall file an answer not later than 10 days after service of the administrative'law judge's 

denial of the motion. A motion to dismiss the complaint for insufficiency 

must show that the complaint fails to 

state a violation of a provision of the 

Federal aviation statute listed in tbe 

first sentence in 49 U.S.C, 46301(d)(2) or 

64 
Federa l Aviation Administtalion, DOT §13.218 

in 49 U.S.C. 47531, or any implementing 

rule , regulation , or order, or a violation of th e Federal bazardousmateiials 

transportatio n statute , 49 U.S.C. 5121-

— 5128, - or-any. impi em e^ntin B_ralc,_regulation o r order. 

(2) Motion to dismiss. A party may file 

a motio n to dismiss, Epecifying th e 

ground s for dismissal. If an administra -

tive law jadge grants a motion to dismiss i n part, a part y may appeal th e 

administrativ e law- judge's ruling on 

t h e motio n to dismiss under § 13.219(b) 

of this subpart, 

(J) Motion Co dismiss a request for a 

hearing, -An agency attorney ma y file a 

motio n to dismiss a request for a hearing instead of filing a complaint. If th e 

motio n to dismiss is.no t granted, th e 

agency attorne y shall file th e complain t and shall serve a copy of th e 

complain t on each party not late r tha n 

10 day s after service of the administra -

tive'la w judge's ruling or order on th e 

motio n to dismiss. If tbe'motion to diamiSB is granted and th e proceedings ar e 

terminated-withou t a hearing, the re -

spondent ma y file an appeal pursuan t 

to S 13.233 of this subpart. If required b y 

the decision on appeal, the agency at -

torne y shall file a complaint and shal l 

serve a copy of the complaint on eac h 

party.no t late r tha n 10 days after serv -

ice of the decision on appeal, 

(ii) Motion to dismiss a complaint. A re -

spondent may file a motion t o dismiss 

a complaint instead of filing an answer. 

If th e motion to dismiss is no t granted , 

the respondent shall file an aostre r an d 

shall serve a'cop y of the answer o n 

each party no t late r than 10 days afte r 

service of th e administrative la-w 

judge's ruling or order on tb e motio n 

to dismiss. If th e motion to dismiss is 

granted and th e proceedings ar e terminated without a hearing, th e agenc y 

attorne y may file an appeal pursuan t 

to { 13,233 of this subpart. If required b y 

the decision on appeal, the responden t 

shall file an answe r and shall serve a 

copy of the answe r on each part y no t 

late r than 10 days after service of th e 

decision on appeal. 

- (3) Motion for more definite statement. 

A part y ma y file a motion for mor e 

defmite statemen t of any pleadin g 

-which requires a response under this 

subpart. A part y shall set forth, in de -

tail, tb e indefinite or uncertain allega -

tions contained in a complaint or re -

sponse to any pleading and shall subm it the details tha t th e part y believes 

would mak e th e allegation or response 

definite and certain. 

(l}Co77;p/oin^-A-respondent may-file.a _ 

motion requesting a mor e . definite 

statement of th e allegations contained 

in the complaint instead of filing an 

answer. If th e administrativ e law judge 

grants the motion, th e agency attorne y 

shall supply a more definite statemen t 

not late r tha n 15 day s after service of 

the ruling granting th e motion . If th e 

agency attorne y falls to supply a mor e 

definite statement, th e administrativ e 

law judge shall strik e the-allegation s 

in th e complaint t o which th e motio n 

is directed. If the administrativ e law • 

judge denies the motion , th e respondent shall file an answe r and shall serve 

a copy of th e answe r on each part y no t 

late r tha n 10 days after service of th e 

order of denial. 

(II) Answer. An agenc y attorne y ma y 

file a motion requestin g a mor e definit e statemen t if a n ans-wer fails t o re -

spond clearly to th e allegations in the . 

complaint. If the administrativ e law 

judge grants the motion , tb e responde n t shall supply a mor e definite etate -

men t not-late r tha n 15 days after serv--

ice of th e ruling o n the motion . If the 

respondent fails t o supply a. mor e definit e Btatement, th e ad minis trativ e law 

judge-shall strike thos e statements in 

t b e answer t o whic h th e motio n ie directed. Th e respondent's failure t o supply a mor e definite ' statemen t ma y be 

deemed an admissio n of-unanswered allegations In the complaint . 

(4) Afoiion to strike. An y part y may 

mak e a motion t o strik e any Insufllcient allegation o r defense, or an y redundant, immaterial , or irrelevan t 

"matte r In a pleading . A part y Ehall filoa motion t o strik e with.th e administrativ e law Judge ajad shall serve a copy 

on each part y befor e a respons e is re -

quired unde r this subpart or, if a response is no t required, no t late r tha n 10 

days tifter service of th e pleading, 

(5) Motion far decision. A part y ma y 

mak e a motion fo r decision, regardin g 

all or any part of th e proceedings, a t 

any time .before th e administrativ e law' 

judge ha s issued a n initia l decision in 

t h e proceedings. The administrativ e 

law Judge shall gran t a party's motio n 

65 
§13.219 14 CFR Ch. I {1-H3B Edition) 

for decisio n if the pleadings, depositions, answers to interrogatories, admissions, matters tha t the administra -

tive law judge has officially noticed, or 

—evidence-introduced,during th e hearing 

show tha t there is no genuine issue o f 

materia l fact and tha t the party making th e motion is entitled to a decision 

as a matte r of law. The party making 

the motio n for decision has th e burden 

of show-Jng tha t there is no genuine 

issue of materia l fact disputed by the 

paxtJes. 

(6) Motion for disQuahfication. A party 

m a y file a motion for'di-squalification 

with th e administrative law judge and 

shall serve a copy on each party. A, 

part y ma y file the motion a t any time 

after th e administrative law judge ha s 

been ossigned lo tbe proceedings bu t 

shall mak e .the lYiotlon before the administrativ e law judge files an initial. 

decision in the proceedings-

(1) Motion and supporting affidavit. A 

party shall stat e the grounds for disqualification, includine , but no t limited to , personal bias, pecuniary interest, or othe r factors sho-wing disqualification, in th e motion for disqualification. A part y shall submit ah affidavit 

with th e motion for disqualification 

tha t sets forth, in detail, the-matters 

alleged to constitut e grounds for disqualification. 

(ii) Answer. A party shall respond to 

the motio n for disqualification no t 

late r tha n 5 days after service of th e 

motio n for disqualification. 

(ill) Decision on motion for disqualification. The ' administrativ e Jaw judge ' 

shall rende r a decision on th e motio n 

for disqualification no t late r than 15 

days after tbe motion ha s been filed. If 

the administrativ e law Judge finds tha t 

tbe motio n for disqualification and 

supporting affidavit sho-w a basis for 

disqualification, th e administrativ e 

law judge shall,withdraw from th e proceedings immediately. If th e administrativ e law Judge finds tha t disqualification is no t warranted, th e adminlEtrativ e law judge shall deny th e motio n 

and stat e the grounds for th e denial on 

the record. If the administrativ e law 

judge fails to rule on a party's motio n 

for disqualification within 15 days'afte r 

the.motio n ha s been fi^ed, th e motio n 

is deemed granted. 

(Iv) Appeal. A party may appeal th e 

administrative law judge's denial of 

the motion for disqualification in ac -

cordance with §13-219(b) of this sul>-

part. 

[Amdt.' 13^21, 65'FR"27&75,-Jaly-3.-lB90.-aB_ 

arnendeil by 71 FR 10464. Doc. 5. 2006] 

{ 13^19 Interlocutory appeals. 

(a) • General,- Unless otherwis e pro -

vided in this subpart, a poj-ty ma y no t 

appeal a ruling or decision of th e ad -

ministrativ e law Judge to th e FAA de -

cisionmake r until the initia l decision 

ha s been entered on th e record. A decision or order of the FAA decisionmake r 

. on th e interlocutory appeal does no t 

constitut e afina l order of th e Admlnlo - • 

trato r for the purposes of judicia l ap -

pellat e review a s pro-vided In .5 13.235 of 

this subpart. -

(b) Interlocutory appeai for cause. If a 

part y files a written request for a n in -

terlocutor y appeal for cause vrith th e 

administrativ e law Judge, or orall y re -

quests - an interlocutor y appea l for 

cause , ttio proceedings ar e staye d unti l 

t h e administrativ e law judge lasue e a 

decision on th e request. If th e administrativ e law Judge grorita th e requoet , 

t h e proceedings ar e stayed unti l th e 

FAA decisionmake r issues a decision 

on the interlocdtor y appeal. Th e ad -

ministrativ e law judge shall gran t a n 

interlocutor y appeal for caus e if a 

part y shows tha t delay of th e appea l 

would be detrimenta l to th e publi c in -

terest or -would resul t in undu e preju -

dice to an y party . 

(c) fnterlocutorv appeals of right. If a 

part y notifies th e administrativ e law 

-judge of an interlocutor y appea l of 

right, th e proceedlngB ar e staye d unti l 

t h e FAA decisionmake r issues a decision on—the .interlocutor y appeal. A 

part y ma y file an interlocutor y appea l 

wit h th e FAA decisionmaker, withou t 

t h e consent of. th e administrativ e la-w 

judge , before a n initia l decisio n ha s 

bee n entered in th e cas e of: 

(1) A rulin g or orde r by th e administrativ e law Judge barrin g a perso n from 

t b e proceedings. 

(2) Failur e of th e administrativ e law 

judge to dismiss th e proceeding s i n accordanc e wit h §13.215 of this subpart . 

(3) A rulin g or orde r by th e administrativ e law judge In violatio n of 

§13.205(b} of this subpart . 

66 
Federal Avialion Administration, DOT §13.220 

(d) Procedure. A party sbflll file a no* 

tice of interlocutory appeal,, with supporting documents, with tbe FAA decisionmaker and the hearing docket 

-^clerk. and shall serve a copy of the DO-' 

tice and supporting'documents^oneachparty and the administrative .law 

Judge, no t later than 10 days after the 

odministrative law Judge's decision 

forming the basis of an interlocutory 

appeal of right or not later than 10' 

days after the - administrative law 

judge's decision granting an interlocutory appeal for cause, whichever is appropriate, A party shall file a reply 

brief, if any, with the FAA decisionmaker and serve a copy of the reply 

brief on .each party; not later-than 10 

days after service of the appeal brief. 

The FAA-decifiionrnater shall render a 

decision on the interlocutory appeal, 

on the record and as a part of the decision in the proceedings, within a reasonable time after receipt of the interlocutory appeal. 

(e) The FAA decisionmaker may reject frivolous, repetitive, or dilatory 

appeals, and may, issne' an order precluding ono or more parties from making further interlocutory appeals in a 

proceeding in which there- have been 

frivolous, repetitive, or dilatory interlocutory appeals. 

[Amat. 1»-21, &5 FR 27575. Jal y 3, 1990, a s 

amended by Amdl. 13-23, 65 FB iMM, Oct.. 31, 

1090; 71 F B 7W64, Dec. 5, 2006] 

513.220 Discovery. 

(a) JnitiatioTi of discovery. Any party 

may initiate discovery described in 

this section, without the consent or approval of the administrative la-w Judge, 

at any time after a complaint has been 

filed in the proceedings, 

(b) 'Methods of discovery. The following methods of discovery are permitted under this section: depositions 

on oral examination or written questions of any person; written interrogatories directed to a party; requests for 

production of documents or tangible 

items to any person; and requests for 

admission by a party. A party is not required to file written interrogatories 

and responses, requests for production 

of documents or tangible items and responses, and requests for admission and 

response with the administrative ' law 

Judge or the hearing docket clerk. In 

- the event of a discovery dispute, a 

party shall attach a copy of these documents in support of a motion made 

under this section, 

(c) Service on the agency. A party 

^shall^Eerveeach-discovery-requested! T 

rected to the ag.ency or any agency employee on the agency attorney of 

record. 

(d) Time for response to discovery reguests. Unless otherwise directed by 

this subpart or agreed by the parties, a 

party shall respond to a request for discovery, including filing objections to a 

request for discovery, not later than 3D 

days of service of the request, 

(e)i5cDpe of discovery. Subject to the 

limits on discovery set forth in paragraph (/) of this Bection, a party may 

discover any matter tha t is not privileged and tha t Is relevant to the subject matter of the proceeding. A party 

may discover information that relates 

to the claim or defense of any party including the existence, description, nature, custody, condition, and location 

of any document or other tangible item 

and the identity and location of any 

person ha-ving knowledge of discoverable matter, A party may discover 

facta known, or opinions held, by an 

expert who any other party eapects to 

call to testify at the hearing. A party 

has no ground to object to a discovery 

request on the basis tha t the inforniation sought would not be admissible a t 

the hearing If the information sought 

during discovery is reasonably calculated to lead to the discovery of ad--

mlaslble evidence. 

If) Limiting discovery. The administrative law judge shall limit the frequency 

and extent of discovery perinltted by 

this section if a party shows that— 

(1) The' information requested la cumulative or repetitious; 

(2) The information requested can be 

obtained from another less burdensome 

and more convenient source; 

(3) The party requesting the information has had ample opportunity .to ob-. 

tain the infomiation through other discovery methods permitted under this 

section; or 

(4) The method or scope, of discovery 

requested by the party ie unduly burdensome or expensive. 

67 
§ 13.220 M CFR Ch. I (1-1-OS Edition) 

(g) Confidential orders. A party or person who-ha s received a discovery re -

quest for information tha t is related to 

a trad e secret, confidential or sensitive 

- material,-.compe^tjveo r commercial 

information, proprietary dstarorlnfor--

matlo n on research and development, 

may file a .motion ior a confidential 

order wit h th e administrative law 

judge an d shall serve a copy of tbe mo -

tion for a CDUfidcntial order on each 

party. 

(3) Tb e party or person malting th e 

motio n must show tha t the confidential orde r is necessary to protec t th e 

information from disclosure to the public. 

(2) If tb e administrative law Judge determine s tha t th e requested materia l is 

h o t necessary t o decide the ca«e, th e 

odministrativ e law Judge shall preclude 

any inquiry int o tbe - matte r by an y 

party . 

(3) If th e administrative law judge determine s tha t th e requested materia l 

may be disclosed during discovery, th e 

administrativ e law judge may orde r 

tha t th e materia l may be discovered 

Eind disclosed under limited conditions 

or ma y be used only under certai n 

terms and conditions. 

(4) If th e administrative law Judge de -

termine s tha t th e requested materia l is 

necessary to decide th e case and tha t a 

confidential orde r Is -t^-arrantod. the ad -

ministrativ e law judge shall provide: . 

(i) An opportunity for review of th e 

documen t by th e partie s off th e record; 

(Ii) Procedure s for excluding th e information from th e record; and 

(ill) Order tha t the partie s shall no t 

disclose the information in any manne r 

and.th e partie s shall not use tbe informatio n in any othe r proceeding, 

(h) Protective orders. A party or a person wh o has received a request for discovery ma y file a motion for protectiv e 

order with th e administrative law 

judge and shall serve a copy of th e mo -

tion for protective order on each party.-

The party or person making, the mo -

tion mast show tha t the protectiv e 

order is necessary to protec t the part y 

or th e person from annoyance , embarrassment, oppression, or undue burde n 

or expense. As part of the protectiv e 

order, the administrativ e law judg e 

may: 

• (1) Deny the discovery request; 

(2) Order tha t discovery be condncted 

only on specified terms and conditions, 

inclDding a designation of the time or 

place for discovery or a determinatio n 

of the method of discovery; or 

—(S)-Limit-the-Bcope_of_disco^veiYor 

preclude any inquiry into certain mat^~~^ 

ters during discovery. 

(1) Duty • to supplement or amend responses. A party who ha s responded to a 

discovery request ha s a dut y to supple -

men t or amend the response, a s soon aji 

t h e information Is known, as follows: 

(1) A part y shall supplement o r 

amend any response to a question re -

questing th e identity and locatio n of 

any person having knowledge of dlscoverable matters, 

(2) A part y shall supplemen t o r 

amend any response to a questio n re -

questing th e Identity of each person ' 

who will be called to testify a t tb e 

hearing' as on expert witness and th e 

subject matte r and sahstanc e of tha t 

-witness' testimony , 

(3) A part y shall supplemen t or 

amend any response tha t wa s incorrec t 

when made or any response tha t wa s 

correct when made bu t Is no longe r 

correct, accurate , or complete . 

(J) Depositions. The following rule s 

apply to depositions take n pursuan t t o 

this section: 

(1) Form. A deposition shall be take n 

on the record and reduced t o writing . 

The person being deposed shall sign th e 

deposition unless th e partie s agre e to 

waive the requiremen t of a signature . 

(2) Administration of oaths. Within th e 

United States, or a territor y or possession subject to th e Jorlsdlction of th e 

United States, a part y ehall tak e a deposition before a person anthorize d t o 

administe r oaths by th e laws of th e 

United State s or aathori2e d by th e law 

of the plac e wher e th e examinatio n la 

held. In foreign countries, a part y shal l 

tak e a deposition i n an y manne r allowed by the Federa l Rule s of Cl-vll 

Procedure . 

(3) Notice of deposition. A part y shal l 

serve a notic e of deposition, statin g th e 

tirhe and place of th e deposition and 

the name and address of eac h person t o 

be examined, on th e perso n to be de -

posed, on tb e administrativ e law judge , 

on the hearin g docke t clerk , an d on 

each part y no t late r tha a 7 days before 

6B 
Federal Aviation Administration, DOT §13.220 

t h e depositioP- A party may serve a notic e of deposition less than 7 days before th e deposition only -with consent 

of th e administrativ e law Judge. If a 

_subpoena duces tecum is to be served on 

t h e perBbn~tO"-be-examlnedrthe-party 

shall attac h a copy of the subpoena 

duces iccum tha t describes tbe mate -

rials t o be produced at the deposition 

. to the notic e of deposition. 

(4) Use of depositions. A party ma y use 

any part, or all of a deposition a t a 

hearin g authorized under this subpart 

only upon a sJiowing of good cause. The 

deposition may be used against any 

part y wh o was present or represented 

a t the deposition or who had reaaonable'notic e of the deposition. 

(k) Interrogatories. A party, the party's attorney , or th e party's represent^ 

ative ma y sign th e party's responses to 

interrogatories. A party shall answe r 

each interrogatorj' separately and completely In writing. If a party objects to 

an interrogatory , the party shall stat e 

t h e objection and the reasons for th e 

objection. An opposing party ma y use 

any part or all of.a parly's responses to 

interrogatorie s a t a hearing authorized 

under this suljpart to the extent tha t 

t h e response is relevant, material, and 

n o t repetitious. 

(1) A part y shall not serve mor e tha n 

30 interrogatorieE to each othe r party . 

- Each subpart of an interrogatory shall 

be counted as a separat e interrogatory : 

(2) A part y shall file a motion for 

leave to serve additional Interrogatorie s on a part y with the administra -

tive law judge before serving additiona l 

interrogntorier- on e party. Tbe admin -

istrativ e law judge ehall gran t th e motion only If the part y shows good caus e 

for the party's failure to inquire abou t 

the- information previously -and tha t 

t h e information cannot reasonably be 

obtained nslnf less burdensome discovery method s or be obtained from 

othe r sources. 

• (1) Requests for admission, A part y 

may serve a writte n request for admission of the trut h of any matte r withi n 

t h e scope of discovery under this section or the authenticit y of any documen t described in the request. A part y 

shall set forth each request for admission separately. A party shall serve 

copies of documents referenced in th e 

request for adniission unless the documents have been provided or arc reasonably available for inspection and 

copying. • 

(1) Time. A party's failure to respond 

to a request tor admission, in writin g 

— and—signed _by^th e ^attorne y or th e 

party , no t late r than 30 days after serv-"" 

ice of the request. Is deemed an admission of tbe trot h of the statemen t or 

statcmentK contained in th e request for 

admission. The administrativ e law 

judge ma y determine tha t a failure to 

respond to a request for admission Is 

n o t deemed an admission of th e trut h If 

a part y shows tha t th e failure was due 

t o circumstance s beyond th e control of 

t h e part y or the party's attorney . 

(2) Response. A party ma y object to a 

request for admission and shall stat e 

t b e reasons for objection. A part y ma y 

specifically deny the trut h of th e matt e r or describe th e reasons why th e 

part y is unable to truthfull y deny o r 

admi t th e matter. If a part y is unabl e 

t o deny or admit tb e trut h of th e mat-

. tcr, th e party shall show tha t th e part y 

h a s mad e reasonable inquir y Int o tb e 

matte r or tha t the Information known 

t o , or readily obtainable'.by, tb e part y 

iB insnfricient to enable th e part y to 

admi t or deny th e matter. A part y ma y 

admi t or deny any part of the request 

for admission. If th e administrativ e 

law judge determine s tha t a respons e 

does no t comply -with th e requirements 

• of this rul e or tha t th e responoe la insufficient, th e matte r is deemed admitted. 

(3) Effect of admissiori. An y matte r admitte d or deemed admitte d unde r this 

Gcctjon is conclusively established for 

t b e purpose of th e hearin g and appeal, 

(m) Afoiion' fo compel discovery. A 

part y ma y mak e a motio n to compe l 

discovery if a person refuse s to answe r 

a question during a deposition, apart y 

fails or refuses to answe r a n interrog -

atory , if a person gives a n evasive o r 

incomplet e answe r durin g a deposition 

or when responding t o an interrog -

atory , or a part y falls or refuses t o 

produc e documents or -tangible Items. 

Durin g a deposition, th e proponen t of a 

questio n ma y complet e th e deposition 

or ma y adjourn th e examinatio n before 

makin g a motio n to compe l If a perso n 

refuses to ajiswer. 

(n) Failure to comply with a discovery 

order or order to compel. 11 a part y falls 

69 
§13.221 14 CFRCh. 1(1-1-08 Edition) 

to comply with a discovery order or an 

order to compel, tJie administrative 

law judge, limited to the extent of the 

party's failure to comply with the dis-

—covery. order or motion to compel, 

may: ^^ ~~ 

(1) Strike that portion of a party's 

pleadings; 

(Z) Preclude preliearing or discovery 

motions by that party;. "" 

(3) Preclude admission of that portion of a party's e-vidence at tbe bear-

• ing; or 

(4) Preclude that portion of the testimony of that party's -wiLuessea at the 

hearing, 

lAnidt. 13-21. 55 FR 27575, July 3, 1990, aa 

amende d by Amdt. 13-23, 55 FR 459B3, Oct. 31, 

19901 

5 13.22 1 Notic e of hearing . 

(a) Notice. The administrative law 

judge shall give each party at least 60 

days notice of the date, time, and location of the hearing. 

(b) Dale, time, and location of the hearing. The administrative law Judge to 

whom the proceedings have been assigned shall set a reasonable date, 

time, and location for the hearing. The 

administrative law judge shall consider 

- the need for discovery and any joint 

procedural or discovery schedule submitted by the parties when determining the hearing date. The administrative law judge shall give due regard 

to the convenience of the parties, the 

location where the majority of the witnesses reside or work, and whether the 

location la served by a scheduled air 

carrier. 

(c) Earlier hearing. With the consent 

of the administrative law judge,- the 

parties may agree to hold the hearing 

on an earlier date than the date specified in the notice of hearing. 

(13.222 Evidence, 

(a) General A party is entitled, to 

present the party's case or defense by 

oral, documentary, or demonstrative 

evidence, to submit rebuttal evidence, 

and to conduct any cross-examination 

tha t may be required for a full and true 

disclosure of the facts. 

(b) AdmisEibility. A party may introduce any oral, documentary, or demonstrative evidence in ."Support of the party's case or defense. The administrative law judge shall admit any oral, 

documentary, or demonstrative evidence introduced by a party but shall 

exclude irrelevant, immaterlaj, or unduly repetitious evidence. 

ic)—Hearsay—evidence Hearsay^_evJ^_ 

dence is. admissible in proceedings governed by this subpart. The fact tha t 

evidence submitted by a party is hearsay goes only to the weight of the evidence and does not affect Its admisslbility. 

E 13.223 SU/idard of proof. 

The administrative law judge ahaU 

issue an initial decision or shall rule In 

a party's favor only If the decision or 

ruling Is supported-by, and in accordance with, the reliable, probative, and 

substantial evidence contained in the 

record. In order to prevail, the party 

with tbe burden of proof shall prove 

the party's case or defense by a preponderance of reliable, probative, and snh-

. Etantial e-vidence. 

513.224 Burden of proof. 

(a) Except in the case of ah affirmative defense, the harden of proof is on 

the agency. 

(b) Except as otherwise provided by 

statute or rule, the proponent of a motion, request, or order has the burden 

of proof. 

(c) A party who has asserted an affirmative defense has the burden of 

pro-ving the affirmative defense. 

( 13.225 Ofl'er of proof. 

A party whose evidence has been excluded by a ruling of the administrative la-w judge may offer the evidence 

for the record on appeal. 

fi 13.226 ]>ub1ic disclosure of e-vidence. 

(a) The admlniBtrative law judge may 

order tha t any information contained 

in the record be withheld from public 

disclosure. Any person may object to 

disclosure of information in the record 

by filing a -written motion to withhold 

specific information with the administrative law Judge and serving a copy of 

the motion on each party. The party 

shall state the specific grounds for nondisclosure in the motion. 

(b) The administrative law Judge 

shall grant the motion to withhold, information in the record if, based on the 

70 
Federal AvioNon Administration, DOT § 13.230 

motion- and any response to th e motion , the . administrative law judge determine s tha t disclosure would be detrimental to aviation safety, disclosure 

-—woul d not_be_in„the^pubHc interest, or 

tha t th e information is not~oth~ei^'iBe" 

required to be made available to the 

public . 

§ 13.227 Expert or opinion witneBKes. 

An'^roploye e of the agency may-no t 

be called as an expert or opinion witness, for any party other than th e 

FAA, in any proceeding governed by 

this subpart. Ancmploye e of a responde n t ma y not be called by an agency attorne y a s an expert or opinion witness 

for tb e FAA in any proceeding governed by this subpart to which th e responden t Is a party. 

513.228 Subpoenas, 

(a) Request for subpoena. A part y ma y 

obtai n a subpoena to compel th e attendanc e of a witness a t a deposition or 

hearin g or to requir e the production of 

documents or tangible items from th e 

hearin g docket clerk. The hearin g 

docke t clerk shall deliver th e subpoena, signed by the hearing docke t 

cler k or an administrative law jadg e 

b u t otherwis e In blank, to th e party . 

The part y shall complete the subpoena, 

statin g th e titl e of th e action and th e 

dat e and time for the witness' attend -

anc e or production of docomenta or 

items. The part y who obtained th e subpoena shall serve th e subpoena ou th e 

•witness. 

(b) Motion to quash or modify the subpoena. A party , or any person upon 

whom a subpoena ha s been served, ma y 

file a motio n to quash or modify th e 

subpoeno with th e administrative law 

judge a t or before th e time speciried In 

t h e subpoena for compliance. Th e ap -

plican t shall describe, in detail, th e 

basis for the application to quash or 

modify the supoena including, bu t no t 

limited to, a statemen t tha t tb e testimony, document, or tangible evidence 

is no t relevan t to th e proceeding, tha t 

the subpoena is no t reasonably tailored 

t o th e scope of th e proceeding, or tha t 

t b e subpoena is unreasonable and oppressive. A motio n to quash or modify 

t h e subpoena will sta y the effect of th e 

subpoena pending a decision by th e administrativ e law judge on the motion . 

(c) Enforcement of subpoena. Upon a 

showing tha t a- person has failed or refused to comply with a subpoena, a 

party may apply to th e local federal 

distric t court to seek judicial enforce-

~ ment-of-the-subpoena-in-accor d ance _ 

with 49 U.S.C. 46104 in cases under th e 

Federal aviation statute . 

[Amdt.. 13-21. 55 FR 27575, July 3. IQM,-aa 

tt.Tieaded a t 71 FR 7M65, Dec. 5, 2006] 

(13.229 WitncEsfeeB. 

(a) GenernI, Unless otherwise authorized by th e administrativ e law judge, 

the party who applies for a subpoena t o 

compel th e attendanc e of a witness a t 

a'deposition or hearing , or the part y a t 

whose request a witness appears a t a 

deposition or hearing , shall pay th e 

witness fees described In this section. 

(b) Amount. Except for an employe e 

of th e agency who appears a t tb e direction of th e agency, a witness who appears a t a deposition or hearing is entitled to th e same fees and mileage expenses a s ar e paid t o a witnes.^ in a 

court of th e United State s in comparabl e circumstances. 

(13.230 Kecord. 

(a) Exclusive record. The transcrip t of 

all testimon y in th e bearing, all exhibits received int o evidence , and all mo -

tions,-applications, requests, and'rul -

ings shall constitut e th e exclusive 

record for decision of tb e proceedings 

and the basis for th e issuance of an y 

orders in th e proceeding. Any proceedings regarding th e disqualification 

of an administrativ e law judge shall be 

included in th e record. 

(b) Examination an d copying of record. 

Any person ma y examin e th e record a t 

t h e Hearing Docket . Federa l Aviatio n 

Administration , 600 Independenc e Ave -

nue , SW., Wilbur Wrigh t Building -

Boom 2034. Washington, DC 205S1. Doc -

uments ma y also b e examined and copied - a t tb e U.S. Departmen t of Transportation , Docke t Operations, West 

Building Ground Floor, Room W13-140, 

1200 New Jerse y Avenue , SE., Washington , DC 20590. An y person ma y hav e 

a copy of the. recor d after paymen t of 

reasonabl e coats t o copy th e record, 

[Docket No. 1BBB4. 44 FR 63723, Nov. 5, 1919, ae 

amended at 70 FR E23B. Feb. 18, 2005; 72 FR 

68474, Dec. 5. 2M7] 

71 
§13.231 14 CFRCh, I (1-1-OB Edition) 

513.231 Argument before the adminietratfve law judge. 

(a) Arguments during the hearing. During the hearing, the administrative law 

~judge-shall-give-the-parties_a.reasonT_ 

able opportunity to present arguments. 

on the record supporting or opposing 

motions, objections, and rulings If the 

parties request an opportunity for argument. The administrative law Judge 

may request written arguments during 

the hearing if the administrative law 

Judge finds that submission of written 

arguments would be reasonable. 

(b) Final oral argument. At the conclusion of the hearing and before the administrative law judge issues an initial 

decision in the proceedings, the parties 

are entitled to submit oral proposed 

findings of fact and conclusions of law, 

exceptions to rulings of the administrative law judge, and supporting arguments for the findings, conclusions, or 

exceptions. At the conclusion of the 

hearing, a party may -waive fmal oral 

argument, 

(c) Posthcaring briefs. The administrative law judge may . request written 

posthearing briefs before the administrative law judge issues an initial decision in the proceedings if the admlniBtrative law judge finds that submission 

of written arguments would be reasonable. If a party files a written 

posthearing brief, the party shall include proposed findings of fact and conclusions of law, exceptions to rulings of 

the administrative law Judge, and-supporting arguments for the findings, 

conclusions, or exceptions. The-administrative law Judge shall give the parties a reasonable opportunity, not 

more than 30 days after receipt of the 

transcript, to prepare-and submit the 

briefs. 

5 13.232 Initial diiciGion. 

(a) Contents.- The administrative law 

judge shall issue an initial decision a t 

the conclusion of the hearing. In each 

oral or written decision, the administrative law Judge shall include findings 

of fact and conclusions of law, and the 

grounds supporting those findings and 

conclusions, upon all material issues of 

fact, tbe credibility of witnesses, the 

applicable Jaw, any exercise of the administrative law judge's discretion, the 

amount of any civil penalty found, appropriate by the administrative la-w 

judge, and a discussion of the basis for 

any order issued- in the proceedlngB. 

The administrative law judge is not required to provide a written explanation 

~for~riilings~ou~ objections—procedural — 

motions, and other matters not directly relevant to the substance of the 

initial decision. If the administrative 

law judge refers to any previous unreported Or unpublished initial decision, 

the administrative law judge shajl 

make copies of that initial decision 

available to all parties and the FAA decisionmaker. 

(b) Oral decuion.-Except-as-provided 

in paragraph (c) of this section, a t the 

conclusion of the hearing, the administrative law Judge shall issue the Initial 

decision and order orally on tbe record. 

(c) Written decision. The administrative law Judge may issue a written initial decision' not later than 30 days 

after the conclusion of the hearing or 

submission of the lost posthearing brief 

If the administrative law Judge finds 

that issuing a written' initial decision 

is reasonable. The administrative law 

jndge shall serve a copy of any written 

initial decisidn on each party. 

.(d) Order assessing civil penalty. Unless 

appealed pursuant to S 13.233 of this 

subpart, the initial decision issued by 

the administrative law Judge shall be 

considered on order assessing civil penalty if tbe administrative law judge 

finds that an alleged violation occurred 

and determines tha t a civil penalty, in 

an amount found appropriate by the 

administrative law judge, is warranted. 

{ 1SJU3 Appeal from initial dcciaion. 

(a) Notice of appeal. A party may appeal the initial decision, and any decision not previously appealed pursuant 

to S 13.219, by filing a notice of appeal 

-with the PAA decisionmaker, A party 

must file the notice of appeal in the 

FAA Hearing Docket using the'appropriate address listed in § 13.210(a). A 

party shall file tbe notice of appeal not 

later than 10 days after entry of the 

oral initial decision on the record or 

service of the written initial decision 

on the parties and shall serve a copy of 

the notice of appeal on each party. 

(b) Issues on appeal. In any appeal 

from a decision of an administrative 

72 
Federol Aviation Administration, DOT §13.233 

law judge, the FAA decisionmaker considers only the folJdwing issues: 

(1) ^^Tiether each finding of fact is 

supported by a preponderance of reli-

-able—probative,-and ~sobstantiai_evv:_ 

dence; 

(2) Vfhether each conclusion of law is 

made In accordance with applicable 

law, precedent, and public policy; and 

(3) Whether the administrative law 

judge committed any prejudicial errors 

thatsupport the appeal. 

(c) Perfecting an appeal. Unless otherwise agreed by the' parties, a party 

shall perfect an appeal, not later than 

&0 .days after entry of tbe oral Initial 

decision on tbe record or service of the 

written initial decision on the party, 

by filing an appeal brief with the PAA 

decisionmaker. 

(1) Ertension of time- by agreement of 

the parties. The parties may agree to 

extend the time for perfecting the appeal with the consent of the FAA decisionmaker. If the FAA decisionmaker 

grants an extension of time to perfect 

the appeal, the appellate docket clerkshall serve a letter confirming the extension of time on each party. 

(2) Written motion for ertetision. If the 

partiesdo hot agree to an extension of 

time for perfecting an appeal, a party 

desiring an extension of time may file 

a -written motion for an extension -with 

the FAA decisionmaker and shall serve 

a copy of .the motion on each party. 

The FAA decisionmaker may grant an 

extension if good cause for tbe extension is shown in the motion. 

(d) Appeal briefs. A party shall file the 

appeal brief -with the FAA decisionmaker.and shall serve a copy of the appeal brief on each party. 

(1) A party shall set forth, in detail, 

the party's specific objections to the 

initial decision or rulings in the appeal 

brief. A party also shall set forth. In 

. detail, the basis for the appeal, the reasons supporting the appeal, and the relief requested in the appeal. If the 

party relies on evidence contained in 

the record for the appeal, tbe party 

shall specifically refer to the i>ertinent 

evidence contained in the transcript in 

the appeal brief. 

(2) The FAA decisionmaker may dismiss an appeal, on the F.AA decisionmaker's own initiative or upon motion 

of any other party, -whEre a pa.rty has 

filed a notice of appeal bnt falls to perfect the appeal by timely filing an appeal brief with the PAA decisionmaker, 

(e) Replg brief. Unless otherwise 

agreed by'the parties, any party may 

file a reply^briofwiththe-FAA-decI- — 

sionmaker not later than 35 days after 

the appeal brief has been served on 

that party. The party filing the reply 

brief shall serve a copy of the reply 

• brief on each party. If tbe party relies 

on evidence contained inthe record for 

the reply, the'party shall Bj>ecifically 

refer to the pertinent c-vldence contained in the traascript in the reply 

brief, 

(1) Extension of• time by agreement of 

the parties. The parties may agree'to 

extend the time for filing c reply brief 

with the consent of the PAA decisionmaker. If- the FAA decisionmaker 

grants an extension of time to file the 

reply brief, the appellate docket clerk 

shall Eerve a letter confirming tbe extension of time on each party, 

(2) Written motion for extension. If the 

parties do not agree to an extension of 

time for filing a reply brief, a party desiring an extension of time may file a 

written motion for an extension -with 

the FAA decisionmaker and shall serve 

a copy of the motion on each party. 

The FAA decisionmaker may grant an 

extension It good cause for the extension is shown in the motion. 

(D Other briefs. The PAA decisionmaker may allow any person to submit 

an amicus curiae brief in an appeal of an 

initial decision. A party may not file 

more -than one appeal brief or. reply 

brief, A party may petition the PAA 

decisionmaker, in -writing, for leave to 

file an additional brief and shajl eerve 

a copy of the petition on each party. 

The party may not file the additional 

brief with the petition. The FAA decisionmaker may grant leave to file an 

additional brief If the party demonstrates good caiise for allowing additional argument on the appeal. The 

FAA decisionmaker will allow a reasonable time for the party to file the 

additional brief. 

(g) Number of copies. A party shall file 

the original appeal briefer the original 

reply brief, and two copies of the brief, 

with the FAA decisionmaker,. 

(h) Oral argument. The'PAA decisionmaker has sole discretion to permit 

73 
§13.234 14 CFRCh. 1.(1-1-08 Edition) 

oral argumen t on the appeal. On th e 

FAA decisionmaker's own initiativ e or 

upon writte n motion by any party , the 

FAA decisionmake r may find tha t oral 

—argument-will-contribute , substantially , 

to the;'development of the issues on appeal an d may grant the partie s an opportunit y for oral argument. 

(i) Waiver of objections on appeal. If a 

part y fails to object to an y alleged 

error regarding the proceedings in an 

appeal or a reply brief, th e part y 

-n-aives an y objection to tb e alleged 

error. Th e PAA decisionmake r is no t 

required to consider any objection in 

an appea l brief or any argumen t in th e 

reply, brief if a party's . objection is 

based on evidence contained on th e 

record and the party does no t specifically refer to • the pertinent e-vjdence 

from th e record in th e brief. 

(j) F'AA decisionmaker's decision on appeal. Th e FAA decisionmake r will review th e record, the briefs on appeal, 

and th e oral argument', if any , when 

considering the issues on appeal. The 

FAA decisionmake r may affirm, modify, or reverse the inltiaJ decision, 

mak e any necessary findings, or ma y 

reman d th e case for any proceedings 

tha t th e FAA decisionmake r determine s ma y be necessary. 

(1) Th e PAA decisionmake r ma y rais e 

any issue , on the FAA decisionmaker's 

own initiative , tha t is required for 

proper-disposition of the proceedings. 

The FAA decisionmake r will give the 

partie s a reasonable opportunit y to 

submi t arguments on the new issues 

before makin g a decision on appeal. If 

an issue raised by th e FAA decisionmake r requires Che consideration of additiona l testimony or evidence, th e 

FAA- decisionmake r will reman d th e 

case to the administrativ e law jndge 

"for furthe r proceedings and an initia l 

decision related to tha t Issue . If an 

issue raised by the FAA decisionmake r 

is solely an issiie of law or th e issue 

was addressed at th e hearin g bu t was 

n o t raised by a part y in th e briefs on 

appeal, a remand of th e case t o th e administrativ e law judge for furthe r proceedings is not . required bu t ma y be 

provided in th e discretion of th e FAA 

decisionmaker. 

• (2) The FAA decisionmake r will issue 

t b e final decision and order of th e Administrato r on appeal in writin g and 

will serve a .copy of. th e decision an d 

order on each party. Unless a petitio n 

for review is filed pursuan t t o §13.235, a 

final decision and order of th e Admln -

-istrator-shall_bB_considered an orde r ' 

assessing civil penalty If th e FAA decl^^ 

sionmake r finds tha t an alleged viola -

tion occurred and a civil penalt y 1B 

warranted. 

(3) A final decision and order of th e 

Administrator after appeal is preceden t 

in any othe r civil penalt y action. Aa y 

issue, finding or conclusion, order, ruling, or-initia l decision of an administrativ e law judge tha t ha s no t been ap -

pealed to th e FAA decisionmake r 1B 

n o t precedent in an y othe r civil penalt y action. 

[Amdt, 13-21, 55 FR 27575, July 3, 1990. u 

ameDdad by Amdt. 11-32; 69 FR 59198, Oct. 4. 

2004; 70 FR 13345. Mar, 21, 20O5J 

(13.234 ^Petition to recoiiBider or mod -

ify a final decision an d orde r of th e 

FAA deciEionmaker on appeal. 

(a) General. Any part y ma y petitio n 

the FAA decisionmake r t o reconside r 

or-modify a final decision and orde r 

issued by th e FAA decisionmake r on 

appeal from an initia l decision. A pajl,y 

shall file a petition to reconside r or 

modify wit h the FAA decisionmake r 

n o t late r tha n 30 days after servic e of 

the FAA decisionmaker's final decision 

and order on appeal and shall serv e a 

copy of th e petition on each party . Th e 

FAA decisionmake r will no t reconside r 

or modify an initia l decision and orde r 

Issued by an administrativ e law Judge 

tha t ha s no t been appealed b y an y 

part y to th e PAA decisionmaker, 

(b) Form and number of copies. A part y 

shall file a'peritio n t o reconside r or 

modify. In writing, -with th e FAA decisionmaker. The part y shall file th e 

original petition wit h th e FAA decisionmake r and shall serve a- copy of th e 

petition on each party . 

(c) Contents. A part y shall stat e briefly and specifically th e alleged errors in 

t h e final decision an d orde r on appeal, 

t h e relief sought by th e party , an d th e 

grounds tha t support, th e petitio n to 

reconside r or modify. 

(1) If tb e petitio n is based , in whol e 

or in part, on allegation s regardin g th e 

74 
Federal Aviation Administration, DOT. §13.301 

conseqoences' of the PAA decisionmaker's decision, the party shall describe thes e allegations and shall de-

-scribe,_anj_suppprt , the basis for tb e 

allegations. . ~ 

(2) if th e petition is based, in whole 

or in part , on new material not previously raised in. th e proceedings, th e 

part y shall se t forth the new materia l 

and include affidavits of prospective 

witnesse s and authenticated documents tha t would be introduced in support of th e new material. The party 

shall explain, in detail, why the new 

materia l was not discovered through 

due dilificnce prior to tbe hearing. • 

(d) Repetitious and frivolous petitions. 

T h e FAA decisionmake r will not conside r repetitiou s or frivolous, petitions. 

The FA A decisionmake r may summaril y dismiss repetitious or frivolous 

petition s to reconsider or modify, 

• (e) Reply petitions. Any other part y 

m a y repl y to a petition to reconsider 

or modify, no t late r than 10 days after 

servic e of the petition on tha t party , 

by filing a reply with tbe FAA decisionmaker. A part y sbaD serve a copy 

of th e repl y on each, party. 

(f) Effect of filing petition. Unless oth -

erwise ordered by the FAA decisionmaker, filing of a petition pursuan t to 

. this section wUl ho t stay or delay th e 

effective dat e of the FAA decisionmaker's final decisionan d order on appeal and'shall no t toll the time allowed 

for judicia l re-view. 

(g) FAA decisionmaker's decision on pe -

tition. Th e FAA deciEionmaker ha s sole 

discretion't o gran t or deny a petition 

to reconside r or modify. The FAA decisionmake r will gran t or deny a petition 

to reconside r or modify within a rea -

sonable time after receipt of the petition o r receip t of the reply petition,-Ifany . Th e FAA decisionmaker ma y affirm, modify, or reverse the final decision an d orde r on appeal, or may re -

mand th e case for any proceedings tha t 

the FAA decisionmake r determine s 

m a y be necessary, 

(Amdt. 13-21, 55 FR 27575, July 3, 1990; 55 FR 

29293. July 18. 1990; AmdL. 13-23, 5S FR 45983, 

Oct. 31, 1990) 

§J3.23S Judicial review of a final deciEion and order. 

(a) I n cases unde r tbe Federal a-viation statute , a part y may seek judicia l 

review of a final decision and order of 

the Administrator, as provided in ' 49 

U.S.C. 46110(a), and, a s applicable. In 49 

U.S.C. ^63DJ(d)(7)(D)(ili), 46301(g), or 

"47532. — 

(b) In cases unde r th e Federa l haz- . 

ardous materials transportatio n statute , a party may seek Judicial review 

of a final decision and order of th e Administrator, as provided in 4D U.S.C. 

5127, 

(c) A part y seeking Judicial review of 

a final order issued by th e Administrato r ma y file a petition for review In 

t b e United State s Court of Appeals for 

t h e Distric t of Columbi a Circuit or in 

t h e United State s Court of Appeals for 

t h e circuit In which th e part y resides 

or has its principa l place of business.. 

(d) The part y most file th e petitio n 

for review no late r tha n 60 days after 

service of tb e Administrator's final decision and order. 

[Doc. No. FAA-2006-25477. 7J FR 7W65, Dec . S. 

2D06] 

Subpart H—Civil Monelary Penalty 

Inflation Adjustment 

BOUBCE: Docliet No. 287G2, 61 F R 67H4S, Dec. 

20, 1996. unleaa otberwlso noted . 

S IS.SOl Scope an d purpose . 

(a) This subpart pro-vides a mecha -

nism for th e regula r adjustmen t for inflation of civil monetar y penaltie s in 

conformity with th e Federa l Civil Pen -

altie s Inflation Adjustmen t Ac t of 1990. 

28 U.S.C. 2461 (note), a s amende d by th e 

Debt .Collection Improvemen t Ac t of 

1996, Publi c Law 104-134, April 26, 199C, 

in orde r to maintai n th e deterren t effect of civil monetar y penaltie s and to 

promot e complianc e wit h th e law. This 

subpart also sets ou t th e curren t adjusted maximut n civil monetar y penaltie s or rang e of minimu m and max -

imum civil monetar y penaltie s for each 

statutor y civil penalt y subjec t to th e 

FAA's jurisdiction . 

(b) Eac h adjustmen t t o th e maximum 

civil monetar y penalt y or th e rang e of 

minimu m and maximu m ci-vil mone -

tar y penalties, as' applicable , mad e in 

accordanc e with this subpart applie s 

prospectively from th e dat e it become s 

effective to action s initiate d unde r this 

part, notwithstandin g reference s t o a 

75 
f\^l^Hm/}r f 

The attached information 

must be protected and not 

reifeased to imaisthorized 

mdiyi duals. Use of this 

cover sheet is in accordaece 

with the Depaitment of 

Justice regulation on the 

control of Limited Official 

•^se information. 

000050 
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UNITED STATES DISTRICT COURT 

DISTRICT OF NEVADA 

-t 

PRO-CEEDING S 

BEFOR E TH E 

SPECIA L FEDERA L GRAN D JUR Y 

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PRESENT; 

TESTIMONY OF 

CHRISTOPHER MC PEAK 

TAKEN AT LAS VEGAS, NEVADA 

TUESDAY, DECEWBER 1, 2009 

AT 10:31 a.m. 

A QUORUM OF THE SPECIAL FEDERAL GRAND JURY 

ijUCAS M. FOLETTA 

Assistan t Unite d State s Attorne y 

(JEPARTMENT OF JUSTICE 

J 3 3 LAS VEGA5 BLVD. SO. #bOOO 

-.AS VEGAS, NEVADA 8910 2 

REPORTED BY: JOYCE DENNEHY 

FREE STATE REPORTING, INC 

Court Reportin g Transctiptio n 

D.C. Ace * 301-261-13^ . 

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PROCEEDING S 

Whereupon . 

CHRISTOPHER MC PEAK 

was calle'l as a witness and, after first being duly sworn 

by the Fo.-reperson of the Grand Jury, was examined and 

testified as follows: 

EXAMINATION 

FOREPERSON: Would you please state your 

full name and spell it for the court reporter. 

WITNESS: My first name is Christopher, CH-R-I-S-T-0-P-H-E-R-, my last name is McPeak, M-C-P-E-A-

•TOREPERSON. You may be seated, 

WITNESS. Thank you. 

EXAMINATION 

UY MR. FOLETTA: 

Q. /igent McPeak, where are you employed? 

A. With the Department of Justice, Federal Bureau 

of Inveati'Tation. 

Q. V.'hat's your position with the FBI? 

A. J 'm a special ager.t. 

Q. Pnd what do your duties include as a special 

age.qt with the FBI? 

A. Investigating a variety of criminal matters and 

preparing those cases for prosecution. 

FREE oTATE REPORTING, INC. 

Court Reporting Transcription 

D.C. Area 3D1-261--1902 

Bait . & A.^.^ap.. U0-974-D94 7 000052 
Q. Can you briefly describe the nature of the 

training ;/ou've received that helps you perform your 

duties? 

A. Yes. All agents, as a matter of procedure, 

receive eritensive training in criminal investigations 

investigative techniques, a variety of aspects involving 

those fields. 

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Q. Do you have any experience investigating 

violations of IBu.S.C, Section 111, Assaulting a 

Federal Officer and violations of 49 U.S.C, 46504, 

Interference with Flight Crew Meinbers and Attendants? 

A. Ces, I do. 

Q. is the testimony you are about to give here 

based upon your personal knowledge and/or information 

provided t3 you in the course of your investigation? 

A, '.'es, it is. 

Q. iuid you're familiar with an investigation into 

an individ'jal named Bria.n Allen Wallaesa? 

A. yes, I am. 

Q. I:nd did all tbe facts underlying that 

investigat:;.on occur either in the State and Federal 

District o! Nevada or in the Special Aircraft 

Jurisdictitm of the United States? 

A. i-es, it did. 

Q. ^re you aware of an event aboard an aircraft, 

FREE STATE REPORTING, IIQC. 

Court Reportin g Transcriptio n 

D.C. Area 301-261-19O2 

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in the Sp/icial Aircraft Jurisdi.ction of the United 

States, on November 6, 2009, that involved Mr. Wallaesa? 

A. Yes, I am. 

Q. Can you describe how that e-vent began? 

A. Essentially^ Mr. Wallaesa, I believe is how his 

name i s pionounced, was sitting next to a young female'-

passenger on the aircraft. ' The two were at a mutual, 

was cescribed as "typical airline type of 

! -onvetsation.'• And at some point the female became 

i., T-ortable with the direction that the conversation 

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wsr :j£iading. Mr. Wallaesa .attempted to, or touched the 

jung lady on her shoulder a couple of times, asked her 

if he couli put his arm around her, behaviors that 

eventually became uncomfortable for her to the extent 

that she asked to be reseated in a different area of the 

aircraft.• 

Q. nhat happened when she asked to be reseated? 

A. ;;he asked another passenger on the aircraft, 

who graciously switched seats with her. That seat was a 

few rows forward of where she had been sitting next to 

Mr. Wallaesa. That passenger swapped seats with her and 

changed plaices next to Mr. Wallaesa. At some point 

Mr. Wallaeua, again, re-approached the young lady at her 

new seat ar-id began trying to, you know, converse with 

her, engage; her in conversation again. 

FEIEE STATE REPORTING, INC 

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D.C, Area 301-'261-).9O2 

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Q. And at that point did a member of the flight 

crew or o-ie of the flight attendants contact 

Mr. Walla.isa? 

•^- Yes. The young lady had previously let the 

flight att:endants know why she was moving seats and that 

the middlti passenger, Mr. Wallaesa, had made her 

uncomfort£-ble. So they were more or less aware of the 

relationship that had formed at that point. Some of the 

flight attendants contacted Mr. Wallaesa and asked him to 

sit back DOwn. 

0. How did Mr. Wallaesa respond? 

A. ^e was insistent on continuing to try to talk 

to the young lady. They eventually sat him in the back 

of the aircraft,-try to resume with him, but they 

eventually — tried to separate the two as much as 

possible. 

Q. What happened after they moved Mr. Wallaesa to 

the rear oE the aircraft? 

A. ji short time later the captain had put the 

fasten sea'-belt sign on and instructed all- of the 

passengers as well as the flight crew, to remain seated 

because th^-'y were expecting some turbulent air 

conditions The flight attendants, from their crew 

seats, saw Mr. Wallaesa stand up and walk briskly. One 

of them de^-cribed him to be "charging" towards the front 

FREE STATE REPORTING, INC. 

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of the ai.rcraft, which, obviously, is not, not normal. 

So severa.'-. of the flight attendants intercepted him, if 

you wiil_, and tried to get him to return to his seat. 

Q. Was one of those flight attendants Wendy 

Moorman? 

A. Yes. 

Q. What happened after they intercepted him and 

attempted to return hi-m to his seat? 

A. •^r. Wallaesa was insistent that he did not want 

to return to his seat- They were unable to reason with 

him to get. him to return to his seat, so they requested 

the assistance from an FBI agent, who was actually on the 

aircraft fi^r personal, persona l business, if you will. 

He was flying here for vacation. And as a matter of 

procedure, federal officers who are on aircraft are 

declared, Lf you will, to, to the-flight crew._ So they 

knew that --here was a law enforcement officer on the 

plane. Thisy requested his assistance in mitigating the 

issue with'Mr. Wallaesa. 

Q. Lo you recall the name of the FBI agent who was 

on the plane? ' -^ 

A, Yes, It was Special Agent James J. Molliea. 

Q. And what happened when, after Mr. Molliea, or 

Agerit Molliea was notified? 

A. Agent Molliea tried to do, you know, what his 

FRSE SThTE REPORTING, INC. 

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training instructed him to do, which is try to 

neutraliz'.; the situation as diplomatically as possible, 

and he dirK that. He tried to reason with Mr. Wallaesa, 

see if he could get him to return to his seat, but at a 

certain po-int he determined that reasoning with him was 

not gettir;.g the intended results. 

Q. And so what did he do then? 

A- He turned Mr. Wallaesa around and handcuffed 

him with the intention of returning him to his seai: so 

that, the flight could continue. 

Q. -iow did Mr. Wallaesa respond to the agent 

intending to place hijn in handcuffs? 

A. -ie, he — the flight attendants described him 

as being not combative, but "reluctantly compliant," I 

think was zhe terminology they used, or something similar 

to that. '^Je didn't offer any resistance to being 

handcuffed. However, when Mr., or when Special Agent 

Molliea tried to reseat him in a row of seats that the 

flight att'.-^ndants had cleared specifically for the two 

men to sit in, Mr. Wallaesa, essentially, refused to be 

seated in '".he seat on his ovm. He didn't, he wouldn't 

just sit d<jwn on his own. In fact, when Special Agent 

Molliea tr:.ed to si t him int o th e seat, he pushed hack 

and reslEtt::d the effort to more or less ait him down in 

the.seat, vhich required Special Agent Molliea to 

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forcibly direct him face down into the row of seats, 

laying across the full row of seats. 

Q. What occurred after the Agent Molliea forced 

Mr. Wallaesa into the seat? 

A. He was eventually at that point getting 

conplianc-? from Mr. Wallaesa. He was able to sit him 

right-3id'2-up in the seat and put his -- he had knocked 

his glassiis off, so he put his glasses back on, and 

Mr. Wallat!sa offered no further resistance until, you 

know, for the duration of the flight. 

MR. FOLETTA. Those are all the factual 

questions that I have. Does anybody have — 

:?RAND JUROP. The spelling of the defendant's 

name maybe some question on that? 

3Y MR. FOLETTA: 

Q. -Jell, do you know how you spell Mr. Wallaesa' s 

name5? 

A. '.f you would allow me to Consult with the file 

so I don't - - the "A" and the "E" are — always have 

diffieulti5s. If you don't mind, I'll just consult. The 

spelling tnat we have is: W-A-L-L-A-E-S-A-. First name 

Brian, middle name Allen. 

CRAND JUROR, Thank you. 

G'RAND JUROR. Was the defendant intoxicated? 

fi'ITNESS. ^o t that we coul d detect. We 

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weren't able to ascertain any intoxication. it wasn't 

immediate:ly evident that he was intoxicated, at least not 

be it alc-ohol or any traditional narcotics that we were 

able to, :o really ascertain. 

GRAND JUROR. .Once they restrained him in the 

back row, was he then handcuffed to the seat or how did 

that — 

WITNESS. He was just handcuffed behind his 

back, whic:h i s the standard, what you see on Cops, the 

standard rear behind the back handcuffing procedure, 

which is vhat all agents are instructed to, to handcuff 

people in that capacity. He just remained handcuffed 

behind hi? back, seated in the seat with Agent Molliea 

next to him. 

:RAND JUROR. No history of any medical 

conditions that would make him do this? 

WITNESS. None that we have been able to 

dGterroine. 

:^OREPERS0N. Any other questions? 

(•JRANO JUROR. Did he fly before? 

vriTNESS. • Has he ever flown on an airplane 

before? W-^ have determined that at least he has 

purchased a variety of tickets on — it's not really 100 

percent conceivable for us to guarantee you that he's 

flown on aircraft in the past. We didn't specifically 

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ask him i.: he' s flown on aircraft in the past, but we 

do havEi records that indicate that he, at. a minimum, 

purchased-airline tickets -in the past. 

GRAND JUROR. What's his age? 

WITNESS. Let me consult just to confirm. I 

believe it's 33 — yeah, 33 years old. 

3RAND JUROR. Thank you. 

aRAKD JUROR. How far into the flight was he 

when he .get active? 

WITNESS. The conversation with the young lady 

occurred, generally, immediately. It didn't get 

uncomfottaole until about halfway through, and all of the 

events .'Bubsequent that I just described precipitated 

pretty rapidly at that point. So, if you will, 

generally, about halfway, halfway-plus into the flight. 

GRAND JUROR. If there wasn't an agent on the 

flight, what would have happened if the, the attendants 

weren't ab..e to --

WITNESS. The flight attendants, as far as we 

understand, are trained to deal with a certain amount c t 

resistance This is speculation, but I suspect that 

there would have been a more significant struggle. There 

were other male passengers on the aircraft that 

volunteerec: to hel p Agent Molliea. He had it under 

control, 5C he didn't require the assistance. But I 

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suspect sr»me other male passengers on the aircraft 

would hav(r rectified the problem relatively quickly. 

•BY MR. FOLETTA: 

Q. Let me aak, and I'm sorry to interrupt: In 

your experience, or do you know whether flight attendants 

are trained in the use of plastic handcuffs, which are 

generally a part of the onboard safety features of an 

aircraft? 

A, 'feah. Generally, since 911, aircraft are more 

equipped.to deal with situations similar to this. 

Obviously, there's a heightened awareness for_security 

incidents. So, generally, the flight attendants have 

some minijn.il defense tactics training, and there is some 

minimal restraining type of equipment on the aircraft, 

rOREPERSON, Any other questions? Seeing 

none, than;: you for your testiinony. 

V.-ITNESS. Thank you,. 

(Whereupon , th e witnes s wa s excuse d a t 10:4 1 

a.m . o n Dec:embe r 1 , 2009. ) 

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CERTXriCAT E 

I hereby certify that the foregoing is a true 

and accurate transcript, to the best of my skill and. 

ability, from my reporting notes of this.proceeding. 

Date e Dennehy 

'rt Reporter 

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