### SERVED: November 18, 2016 U.S. DEPARTMENT OF TRANSPORTATIOb£.PARTMENT 

## OF OFFICE OF HEARINGS 

## TRANSPORTAT\OH

In The Matter Of: Kenneth Ray Rumberger Respondent 

### WASHINGTON, DC 

## p t'). 

### "0 

### 11\h KO¥ \ 8 t.:

**~** 

## DOCKET OPERAT\OHS DocketNo. FAA-2015-0639 ) ) ) ) ) Case No. 2015WP270015



### ORDERDENYING THE RESPONDENT'S MOTION TO DISMISS AND DIRECTING THE RESPONDENT TO FILE AN ANSWER On August 12, 2016, Kenneth Ray Rumberger ("Respondent") submitted a written letter, which, 

### inter alia, requested that the undersignedjudge "dismiss all civil penalties against me at this time"1("Motion to Dismiss"). The Respondent bases his motion on allegations that: (1) the burden ofproofis clear and convincing evidence; (2) the Richmond Police Department's arrest report dated November 17, 2014 is biased; (3) the January 13, 2015 Enforcement Investigative Report (EIR) the Complainant provided him with contains redactions; ( 4) inconsistencies exist within a provided witness statement; and (5) a possibly exculpatory witness was never contacted
or interviewed by the Government. Forthe reasons explained below, the Respondent's Motion to Dismiss is denied.

I 

### 1. BriefProceduralHistory The Complainant filed the complaint on April22, 2015, alleging that onNovember 15, 2014, the Respondent pointed a laserbeam at an aircraft, in violation of 14 C.F.R. 

### § 91.11, and therefore should be assessed a civil penalty of$7,700. The Respondent failed to submit an answer (or a written motion to dismiss the complaint) within 30 days ofservice ofthecomplaint as required by 14 C.F.R. 

### § 13.209.2

1 Mot. Dismiss at 2. 2 Within the complaint, the Complainant did not advise the Respondent ofthe need to file an answer (or a written motion to dismiss the complaint) within 30 days ofservice ofthe complaint.In a letter dated March 23, 2016, Respondent's counsel, Negar Pirzadeh, submitted a notice ofdisassociation ofcounsel ofrecord for the Respondent, effective July 2015. On August 12, 2016, the

### prose Respondent submitted his Motion to Dismiss. 

### 2. Legal Bases for Motion to Dismiss Pursuantto 14 C.F.R. 

### § 13.209(a), a "respondent shall file a written answer to the complaint,
or may file a written motion pursuant to§ 13.208(d) or§ 13.218(±)(1-4) ofthis subpart instead of filing an answer, not later than 30 days after service ofthe complaint."3 Motions available under 14 C.F.R. 

### § 13.218(±)(1-4) are: (1) motion to dismiss for insufficiency; (2) motion to dismiss; (3) motion for more definite statement; and (4) motionto strike.4 Because ofthe arguments raised, the Respondent's Motion to Dismiss will be treated as

.both a motion to dismiss for insufficiency under 14 C.P.R. 

### § 13.218(f)(l) and a more general motion to dismiss under 14 C.F.R. 

### § 13.218(±)(2). 

### 3. Timeliness ofRespondent's Moti_on The Respondent's Motion to Dismiss was filed on August 12, 2016, over one year pastthe 30-day regulatory deadline to file an answer ormotion. 5 Absent good cause, a person's failure to file an answer shall be deemed an admission ofthe truth ofeach allegation contained in the complaint.6 The

### pro se Respondent stated the cause ofthe delay in filing this motion was that the documents were sentto the incorrect address.7 The certificate ofservice on the complaint, however, shows that the complaint was in fact sent to the Respondent's correct address. 8 This excuse, then, does not present good cause for the Respondent's late filing.

3 14 C.F.R. § 13.208(d)provides that "instead offiling an answer to the complaint, a respondent may move to dismiss the complaint,
... alleging a violation that occurred on or after August 2, 1990, and more than 2 years before an agency attorney issued a notice ofproposed civil penalty to the respondent." The Respondent did not raise this as an issue. Regardless, the undersignedjudge finds the complaint was timely filed because the al1eged violation in the case occurred on November 15, 2014, and the Complainant served its Final Notice ofProposed Civil Penalty on March 27,2015, well before the two-year deadline. See Complaint at 2. 4 See 14 C.P.R.§ 13.218(t). 5 See Mot. Dismiss at 1; see also 14 C.F.R. § 13.209(a). 6 14 C.F.R. § 13.209(f). 7 In a undated response to the undersignedjudge's August 29, 2016 Orderto Show Cause, received on October 3, 2016, the Respondent alleged that all mail was incorrectly addressed to SPC 35 instead ofSPC 38. See Respondent's Response to Order to Show Cause. 8 See Complaint at 5 (showing that the complaint was served upon the Respondent at 2451 Church Lane, SPC 38, San Pablo, CA 94806-5945). In fact, contrary to the Respondent's assertions in the response to the Orderto Show Cause, all case related correspondence contains the Respondent's correct address.
Docket No. FAA-2015-0639 Order Denying Motion to Dismiss, page 2There are additional facts to consider, however. In the case at hand, the Respondent was initially representedby counsel. Respondent's counsel failed to file a timely answer ormotion and then, after the deadline to do so had passed, withdrew as counsel.9 Additionally, the complaint does not advise the Respondent ofthe need to file an answer ormotion within 30 days ofservice ofthe complaint. 1 

# °Further, there is no evidence the government counsel providedthe 

### pro se Respondent with a copy ofthe rules or separately advised him ofthis requirement. 11 Because ofthese facts, the undersignedjudge finds good cause for the late filing ofthis motion. 12 

### 4. Sufficiency ofthe Complaint In his Motionto Dismiss, the Respondent notes thatportions ofthe January 13, 2015 EIR provided to himby the Complainant were redacted, thus affecting his ability to respond. 13 Becausethisproceeding is still in its initial stages, the undersignedjudge will considerthis portion ofthe Respondent's argument as a motion to dismiss the complaint for insufficiency. 14 According to 14 C.F.R. 

### § 13.208(c), "Acomplaint shall set forth the facts alleged, any regulation allegedly violated by the respondent, and the proposed civil penalty in sufficient detail to provide notice ofany factual or legal allegation and proposed civil penalty." In administrative proce.edings, a complaint "is sufficient ifthe respondent 'understoodthe issue' and 'was afforded full opportunity' tojustify its conduct during the course ofthe litigation." 15 In the case athand, the complaint satisfies the sufficiency requirements detailed in 14 C.F.R. 

### § 13.208(c). Specifically, paragraph II ofthe complaint alleges that onNovember 15, 2014, the

9 See In re Cornwall, FAA OrderNo. 1992-0047 at 5 (Decision and Order, July 22, 1992) (finding good cause for a late filing when the Respondent understandably relied upon his counsel to comply with procedural requirements). 10 See Cornwall, FAA OrderNo. 1992-0047 at 5 (finding good cause when the complaint was silent concerning the requirementto file an answer). 11 SeeIn re Richard WillfordMetz, FAA OrderNo. 90-0003 at 7-8 (Decision and Order, Jan. 29, 1990) (finding goodcause when the Respondent was not provided with a copy ofthe Rules ofPractice orother guidance bythe FAA prosecutor). 12 The regulations allow ajudge to find good cause and accept late filings because a hearing is fundamental to the concept ofadministrative due process. SeeIn re Safety Equipment andSign Co., LTD., FAA OrderNo. 1992-0076 at 5 (Decision and Order, Dec. 21, 1992) (findingthat wherever possible, cases shouldbe disposed ofon the merits after a hearing, rather than summarily because ofa procedural defect) (citing Cornwall, FAA OrderNo. 1992-0047 at 7). 13 After discussing that the EIR contained several redactions, the Respondent wrote, "How can I respond to alleged violated regulations when I can't view the documents?" See Mot. Dismiss at 3. 14 Under 14 C.F.R. § 13.218(t)(3)(i), "Arespondent may file a motion requesting a more definite statement ofthe allegations contained in the complaint instead offiling an answer." Ifthe Respondent believes the complaint is lacking in specificity, filing such a motion may be the more appropriate recourse. 15 In re BrendanAirways, LLC, FAA-2009-0032 (Order, June 7, 2010) (citingAlohaAirlines, Inc. v. Civil AeronauticsBd., 598 F.2d 250,262 (D.C. Cir. 1979) (quoting NLRB v. Mackey Radio & Tel. Co., 304 U.S. 333, 350 (1938)) andFlying FoodGroup, Inc. v. NLRB, 471 F.3d 178, 183 (D.C. Cir. 2006)).
DocketNo. FAA-2015-0639 Order Denying Motionto·Dismiss, page 3Respondent pointed a laser pointer at a Eurocopter model AS-350-B3 that was flying south of the intersection ofthe 1-80 freeway and Hilltop Drive, in Richmond, Califomia. 16 Paragraph II further alleges that the beam oflight illuminated the aircraft's cockpit, interfering with a crewmember's performance ofhis duties. 17 These allegations set forth the facts underlying the alleged violation, as required by 14 C.F.R. § 13.208(c). Paragraph III states that Respondent's alleged actions with the laser pointer violated 14 C.F.R. § 91.11, which prohibits a person from

·assaulting, threatening, intimidating, or interfering with a crewmember in the performance ofhis duties aboard an operating aircraft. 18 Finally, paragraph IV proposes a civil penalty of$7,700 arising from the alleged violation, which is authorized under the $11,000 cap set by 49 U.S.C. § 46301(a). 19 Accordingly, the complaint in the case at hand satisfies the sufficiency requirements specified in 14 C.F.R. 

### § 13.208(c), in that it set forth the alleged facts, the alleged regulatory violation, and the proposed civil penalty amount in sufficient detail to provide notice to the Respondent. Withrespect to a motion to dismiss for insufficiency, 14 C.F.R § 13.218(f)(1) further explains that: A motion to dismiss the complaint for insufficiency must show thatthe complaint fails to state a violation ofa provision ofthe Federal aviation statute listed in the first sentence in 49 U.S.C. § 46301(d)(2) or in 49 U.S.C. § 47537, or any implementing rule, regulation, or order
... The complaint alleges Respondent violated 14 C.F.R. § 91.11, a regulation prescribed under Chapter 447.20 In accordance with 49 U.S.C. §46301(d)(2), the FAA Administrator may impose a civil penalty for violation ofa regulation prescribed under Chapter447. The allegation inthis case, then, states a violation consistent with the requirements described in 14 C.F.R § 13.218(f)(1). Accordingly, the undersignedjudge finds the complaint to be sufficient. 21

16 Complaint at I. 17 /d. at 2. 18/d. 19/d. 20 The original authority for the promulgation of 14 C.F.R. § 91.11 was 49 U.S.C. § 1421. 26 Fed. Reg. 7009 (Aug. 4, 1961). Following the recodification and reorganization ofTitle 49, section 1421 currently exists at 49 U.S.C. § 44701. 21 Ifthe Respondent believes he needs additional evidence to defend himselfat an eventual hearing, the regulations provide recourse. Pursuant to 14 C.F.R. § l3.220(m), "A party may make a motion to compel discovery if
... a party fails orrefuses to produce documents or tangible items." 14 C.F.R. § 13.220(e) deals with the scope of
DocketNo. FAA-2015-0639 Order Denying Motionto Dismiss, page 4

### 5. Respondent's Other Arguments Respondentpresented several other issues that will be treated as falling underthe more general motionto dismiss pursuantto 14 C.F.R. § 13.218(f)(2). As further explained, none of the issues raised by the Respondentpresent a valid basis for dismissal ofthe complaint atthis stage ofthe proceeding. Generally speaking, these four arguments present factual issues withthe Complainant's case that shall be resolved through an evidentiary hearing.


### a. Burden ofProof The Respondent demands the complaint be dismissed because the burden ofproofis "clear and convincing evidence,"22 without explaining why this legal standard would present a basis for dismissal. Presumably, the Respondent is alleging the Complainant's evidence would not meet this burden. That factual assessment, however, is not the proper basis for a dismissal ofthe complaintpriorto an evidentiaryhearing. Further, it is based upon an incorrect understanding of the burden ofproofinthese proceedings. In accordance with 14 C.F.R. §§ 13.223 and 13.224(a), the burden ofproofis onthe Complainantto prove their case by "apreponderance ofreliable, probative, and substantial evidence."23 Afterthe evidentiary hearing inthis case, the undersignedjudge will determine whetherthe Complainant's evidence was sufficientto meet this legal standard, which notably is lowerthan clear and convincing evidence.24 Becausethe issue ofwhether or notthe Complainanthas met its burden ofproofwill be determined afterthe hearing inthis case, this is not a basis for dismissal at this stage ofthe proceeding. 

### b. Biased Arrest Report In support ofhis argumentthatthe Richmond Police Department's arrest report is biased, the Respondent focuses onthe following language contained inthe synopsis: "the

djscovery and provides that "[s]ubjectto the limits on discovery set forth in paragraph (t) ofthis section, a party may discover any matterthat is not privileged and that is relevant to the subject matter ofthe proceeding." The Respondent maytherefore file a Motion to Compel seeking an unredacted version ofthe EIR ifthe Complainant refuses to provide one. 22 Mot. Dismiss at 2. 23 See 14 C.F.R. §§ 13.223 and 13.224(a). 24 Clear and convincing evidence is defined as "[e]vidence indicatingthat the thing to be proved is highly probable orreasonably certain." Clear and Convincing Evidence, Black's Law Dictionary (lOth ed. 2014). This is a greater burden than preponderance ofthe evidence, the standard in most civil trials, defmed as "[t]he greater weight ofthe evidence
... superior evidentiary weight that, though not sufficient to free the mind wholly from all reasonable doubt, is still sufficient to incline a fair and impartial mind to one side ofthe issue rather than the other." Preponderance of the Evidence, Black's Law Dictionary (10th ed. 2014).
DocketNo. FAA-2015-0639 Order Denying Motionto Dismiss, page 5suspect aimed a laser pointer at a CHP helicopter."25 The issue ofwhether or not the Respondent pointed a laserpointer at a CHP helicopter presents an issue ofmaterial fact that must be resolved at the hearing, as opposed to during a prehearing Motionto Dismiss. Ifthe government relies upon the Richmond Police Department's arrestreport at the hearing as evidence ofthe alleged violation, the Respondent will have the opportunity to present evidence that contradicts or undermines the arrest report.
c. Inconsistencies with a Government Witness Inhis Motion to Dismiss, the Respondent points out multiple "discrepancies" contained in reports completed bythe aircraft's pilot in command, CHP Officer Gavitte. 26 The information contained in Mr. Gavitte's reports pertains to material issues offact. As discussed above, a hearing, as opposed to a Motion to Dismiss, is the appropriate venue for resolving all issues of material fact. Accordingly, ifthe Complainant presents testimony orevidence regarding this issue at the hearing, the Respondent will have the opportunity to cross-examine any witnesses regarding these alleged inconsistencies. d. Complainant's Failure to Contact a Possibly Exculpatory Witness In his Motionto Dismiss, the Respondent complains that no one has contacted Mauricio Alvarado, the otherperson in the car atthe time ofthe alleged incident and so a possibly exculpatory witness.27 The Respondent, however, will have the opportunity to provide testimony from Mr. Alvarado, or any other witness he believes to be exculpatory, and present evidence to contradict orundermine the Complainant's case at the hearing. The failure ofthe governmentto interviewthis person does not, ofitself, present a basis for dismissing this case. Therefore, pursuant to 14 C.F.R. §§ 13.205(a)(8), 13.209 and 13.218, IT IS HEREBY ORDERED: 1. The Respondent's Motion to Dismiss is denied.28 2. No later than November 28,2016, the Respondent shall file a written answer. 29 In his written answer, the Respondent shall admit, deny, or state that he is without sufficient

25 Mot. Dismiss at 2. 26 Id at 3. 27 Jd 28 Pursuantto 14 C.F.R. § 13.208(d)(3), "Aparty may appeal the administrative lawjudge'sruling on the motion to dismiss the complaint or any part ofthe complaint in accordance with § 13.219(b) ofthis subpart." 29 Pursuant to 14 C.F.R. § 13.218(f)(l), "lfthe administrative lawjudge denies the motion to dismiss the complaint for insufficiency, the respondent shall file an answer not laterthan 10 days after service ofthe administrative law
DocketNo. FAA-2015-0639 Order Denying Motionto Dismiss, page 6knowledge or information to admit or deny, each numbered paragraph ofthe complaint,
as required by 14 C.P.R. 

### § 13.209(e).

Attachment: Service List DOUGLAS M. RAWALD Administrative LawJudge

judge's denial ofthe motion." 14 C.F.R. § 13.218(f)(2}(ii) states "Ifthe motion to dismiss is not granted, the respondent shall file an answer and shall serve a copy ofthe answer on each party not later than 10 days after service ofthe administrative lawjudge'sruling or order on the motion to dismiss."
DocketNo. FAA-2015-0639 OrderDenying Motion to Dismiss, page 7SERVICELIST -BY U.S. MAIL 

### ORIGINAL & 

### ONE COPY
Federal AviationAdministration 800 Independence Avenue, S.W. Washington, DC 20591 Attention: Hearing Docket Clerk, AGC-430 Wilbur Wright Building-Suite 2W1 0001 30

Kenneth Ray Rumberger, 

### Respondent 2451 ChurchLane, SPC 38 SanPablo, CA 94806-5945 LisaToscano, 

### Complainant's Counsel Enforcement Division, Western Team Federal Aviation Administration P. 

### 0. Box 92007 Los Angeles, CA 90009-2007 TEL: 310-725-7110 FAJ(: 310-725-6816 

### ONE COPY

The Honorable Douglas M. Rawald,

### Administrative ·LawJudge Office ofHearings, M-20 U.S. Department ofTransportation 1200 NewJersey Avenue, S.E. (E11-310) Washington, DC 20590 TEL: 202-366-5121 StaffAssistant FAJ(: 202-366-7536 DocketNo. FAA-2015-0639 (Civil Penalty Action)

30 Service was by U.S. Mail. For service in person orby expedited courier, use the following address: Federal Aviation Administration, 600 Independence Avenue, S.W., Wilbur Wright Building-Suite 2Wl000, Washington, DC 20591; Attention: Hearing Docket Clerk, AGC-430.